In the
United States Court of Appeals For the Seventh Circuit ____________________ No. 21-2752 LARRY TATE, Plaintiff-Appellant, v.
THOMAS J. DART, et al., Defendants-Appellees. ____________________
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:17-cv-08888 — John F. Kness, Judge. ____________________
ARGUED SEPTEMBER 9, 2022 — DECIDED OCTOBER 25, 2022 ____________________
Before ROVNER, HAMILTON, and SCUDDER, Circuit Judges. HAMILTON, Circuit Judge. Plaintiff-appellant Larry Tate has worked for the Sheriff of Cook County in the Department of Corrections since 2007. In his third year as a correctional of- ficer, Tate suffered a back injury. He returned to work under medical restrictions that required him to “avoid situations in which there is a significant chance of violence or conflict.” Af- ter Tate was promoted to sergeant, the Sheriff’s Office agreed to accommodate this medical restriction by allowing him to 2 No. 21-2752
work in the Classification Unit, where the possibility of vio- lence or physical conflict was relatively remote. But when Tate sought a promotion to lieutenant, he was told that the Sheriff could not accommodate him in that posi- tion. Correctional lieutenants had to be “able to manage and [defuse] regular, violent situations involving inmates.” Since Tate’s medical restrictions would prevent him from perform- ing this essential function, the Sheriff’s Department said, he would remain a sergeant. Tate sued for alleged violations of the Americans with Disabilities Act and the Illinois Human Rights Act. On cross-motions for summary judgment, the dis- trict court found that the undisputed facts show that respond- ing to inmate violence in emergencies is an essential function for lieutenants, so Tate was unable to perform the essential functions of the job he sought. Tate v. Dart, 2021 WL 3737728 (N.D. Ill. Aug. 24, 2021). Although the district court’s opinion was too deferential to the employer’s views about which job functions are essential, we agree with the court’s bottom line and affirm. I. Facts for Summary Judgment These facts are undisputed or reflect the evidence in the light reasonably most favorable to Tate, against whom sum- mary judgment was granted. The Cook County Sheriff’s Of- fice hired Tate as a correctional officer in October 2007. Three years later, after lifting some trays at work, Tate felt some pain in his back. He had to take time off, and when he returned to work, healthcare providers had placed him on several medi- cal restrictions. He could not lift more than 60 pounds and could not stand or walk for prolonged periods, and he needed to change his position frequently and was to “avoid situations in which there is a significant chance of violence or conflict.” No. 21-2752 3
Tate continued to work under these medical restrictions after he was promoted to sergeant in 2012. But in 2014, Tate sued the Sheriff’s Office under the Americans with Disabilities Act, alleging discrimination and failure to accommodate. The par- ties settled. The settlement agreement provided that Tate would remain a sergeant and continue working in the Classi- fication Unit. The settlement addressed the possibility of a fu- ture promotion to lieutenant. Tate could apply for another as- signment or seek promotion to lieutenant in the future if he could “perform the essential functions of the assignment or position.” In 2015 Tate sought promotion to lieutenant. He passed the promotional exam and was certified as eligible for promo- tion. On December 9, 2016, Tate was provisionally promoted to lieutenant. Like all newly promoted lieutenants, Tate was to be subject to a one-year probationary period. That same day, however, Tate met with Human Resources Officer Rebecca Reierson and ADA Compliance Officer Sa- brina Rivero-Canchola, who told him that “his promotion was contingent on him obtaining medical clearance from his phy- sician.” They told Tate that lieutenants had to be able to han- dle disruptive behavior and respond to emergency situations. These were “essential functions,” a critical concept under the ADA. When Tate’s doctor declined to modify his medical re- strictions, Reierson told Tate that it would not be possible to accommodate him as a lieutenant. Lieutenants play an “im- portant and crucial role … in maintaining the safety and se- curity of [the] jail,” she said, and they “frequently respond to incidents that require use of force.” Lieutenants must be “able to manage situations that involve both conflict and violence.” Although Tate was encouraged to suggest accommodations 4 No. 21-2752
that might “enable [him] to perform the essential functions” of a lieutenant, Reierson cautioned him that “avoidance of sit- uations involving violence or conflict is not a reasonable ac- commodation.” About two weeks later, Tate submitted his written ADA accommodation request. He described his lifting, standing, and walking restrictions and noted that he was to “avoid sit- uations involving significant chance of violence.” To accom- modate these restrictions, Tate suggested “avoid[ing] fre- quent inmate contact” through assignment to “minimum in- mate areas,” including classification, laundry, external opera- tions, warehouse, and kitchen. Reierson denied this request: “Violent situations involving inmates arise on a daily basis,” and lieutenants must be “able to respond to emergency situa- tions and [defuse] disruptive behavior with de-escalation or use of force.” Even in areas like “the kitchen, laundry, or ex- ternal operations,” lieutenants “interact[] with inmates who are assigned to work in those areas” and are “still required to respond to emergency situations and incidents involving in- mates that arise … anywhere within the Division … no matter how frequent or infrequent they occur.” Because Tate’s medi- cal restrictions meant he would be unable to handle that es- sential function as a lieutenant, the Sheriff’s Office returned Tate to the rank of sergeant. II. Procedural History Tate filed charges of discrimination with both the Illinois Department of Human Rights and the Equal Employment Opportunity Commission. The EEOC issued a right to sue let- ter, and Tate filed this lawsuit alleging disability discrimina- tion and failure to accommodate under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., and in violation of No. 21-2752 5
the Illinois Human Rights Act, 775 ILCS 5/1-101 et seq. The parties filed cross-motions for summary judgment. The dis- trict court granted summary judgment to the defendants. Tate appeals the denial of his claims under the ADA and the IHRA. Because Illinois courts analyze IHRA claims under a frame- work that is practically indistinguishable from the ADA framework, we focus on the federal ADA claims. See Fox v. Adams & Assocs., Inc., 2020 IL App (1st) 182470, 445 Ill. Dec. 342, 166 N.E.3d 772, 783–88 (2020). III. Analysis A. Legal Standard We review a district court’s grant of summary judgment de novo, without deference to the district court, giving the non-moving party the benefit of conflicts in the evidence and reasonable inferences that could be drawn from the evidence. Majors v. General Electric Co., 714 F.3d 527, 532 (7th Cir. 2013). When a motion for summary judgment asserts that the oppos- ing party cannot meet his burden of proof on a decisive issue, the opposing party must come forward with evidence suffi- cient to permit a finding in his favor that there is a genuine dispute of material fact. Id. B. “Essential Functions” under the ADA The central issue in this appeal is whether there is a genu- ine dispute of material fact as to whether being able to re- spond in emergencies to inmate violence is an “essential func- tion” of the correctional lieutenant position at the Cook County Department of Corrections. The ADA prohibits discrimination, including denial of promotions, against a “qualified individual on the basis of disability.” 42 U.S.C. § 12112(a). A qualified individual is 6 No. 21-2752
someone who, “with or without reasonable accommodation, can perform the essential functions of the employment posi- tion.” 42 U.S.C. § 12111(8). An employer must therefore make reasonable accommodations that will allow a qualified indi- vidual to perform the essential functions of his or her job. Mil- ler v. Illinois Dep’t of Transp., 643 F.3d 190, 197 (7th Cir. 2011); 42 U.S.C. § 12112(b)(5)(A). The Sheriff’s Office argues, and the district court agreed, that the ability to respond physically to emergencies involv- ing inmate violence is an “essential function” for all lieuten- ants in the department, and that Tate’s medical restrictions prevent him from performing that essential function. Tate’s principal argument is that the ability to respond physically is not, as a matter of fact, a truly essential function of all lieuten- ant jobs. We focus first on that issue. Tate also contends that his medical restrictions do not actually mean that he could not respond physically to inmate violence in an emergency. We conclude by addressing that contention. Whether responding to violent emergencies is an essential function of the lieutenant position “is a factual question, not a question of law.” Brown v. Smith, 827 F.3d 609, 613 (7th Cir. 2016) (emphasis in original). As the district court correctly ob- served, to answer that question, “we consider the employer’s judgment, including written job descriptions, as evidence.” Tonyan v. Dunham’s Athleisure Corp., 966 F.3d 681, 687 (7th Cir. 2020). We also “examine the impact of not requiring the em- ployee to perform the function.” Vargas v. DeJoy, 980 F.3d 1184, 1188 (7th Cir. 2020). The statutory text of the ADA provides little guidance on how to determine whether a particular job function is No. 21-2752 7
essential or not, but regulations implementing the ADA iden- tify seven non-exclusive categories of evidence to consider: (i) The employer’s judgment as to which functions are essential; (ii) Written job descriptions prepared before advertising or interviewing applicants for the job; (iii) The amount of time spent on the job per- forming the function; (iv) The consequences of not requiring the in- cumbent to perform the function; (v) The terms of a collective bargaining agree- ment; (vi) The work experience of past incumbents in the job; and/or (vii) The current work experience of incum- bents in similar jobs. 29 C.F.R. § 1630.2(n)(3). 1
1 On appeal, the Sheriff asserts incorrectly that this court considers this EEOC regulation without deference and “solely as persuasive author- ity.” For support, the Sheriff’s brief quoted portions of an opinion of this court that were later amended, Bilinsky v. American Airlines, Inc., 928 F.3d 565 (7th Cir. 2019). Appellees’ Br. at 14. In our research, we found that, at the time of oral argument, Westlaw provided the amended version of Bilinsky, while Lexis provided only the unamended version, so we can un- derstand how a conscientious lawyer could make that mistake. The amended version of Bilinsky is precedential; the original version is not. In any event, we have repeatedly relied on this EEOC regulation in deciding essential-function questions. E.g., Shell v. Smith, 789 F.3d 715, 717–18 (7th Cir. 2015); Stern v. St. Anthony’s Health Ctr., 788 F.3d 276, 285–86 (7th Cir. 8 No. 21-2752
The employer’s judgment is a factor, and an important one, but it is not necessarily decisive. Our cases have often noted that some degree of deference is appropriate, but an employer’s stated judgments about which functions are es- sential may or may not be consistent with the job as actually performed, or perhaps even as set forth in written job descrip- tions. See Mlsna v. Union Pacific R.R. Co., 975 F.3d 629, 634 (7th Cir. 2020) (reversing summary judgment for employer: “‘We usually do not “second-guess the employer’s judgment in de- scribing the essential requirements for the job.” But this def- erence is not unqualified.’”), quoting Tonyan, 966 F.3d at 687 (affirming summary judgment for employer); Miller, 643 F.3d at 198 (“the employer’s judgment is an important factor, but it is not controlling”). Careful attention to the regulation’s other evidentiary fac- tors can counter the employer’s judgment. See Tonyan, 966 F.3d at 688 (reminding that we must “also look to the reality on the ground” and listing the other EEOC categories of evi- dence); Shell, 789 F.3d at 718 (reversing summary judgment for employer: “The district court, in giving deference to the City’s position, did not consider any of the other § 1630.2(n) factors.”); Miller, 643 F.3d at 198 (reversing summary judg- ment for employer after juxtaposing the “employer’s judg- ment” with “the employer’s actual practices in the work- place”).
2015); Hoppe v. Lewis Univ., 692 F.3d 833, 839 (7th Cir. 2012); Feldman v. Olin Corp., 692 F.3d 748, 755 (7th Cir. 2012); Brown v. Illinois Cent. R.R. Co., 254 F.3d 654, 663 n.8 (7th Cir. 2001); Lenker v. Methodist Hosp., 210 F.3d 792, 796 (7th Cir. 2000). No. 21-2752 9
1. Employer’s Judgment Here, the Sheriff argues that the “correctional lieutenant’s essential functions include responding to emergency situa- tions and defusing violence.” This position has not changed since Tate first requested an accommodation based on his medical restrictions. In December 2016, Reierson told Tate that “it is imperative that Lieutenants are able [to] respond to emergency situations and [defuse] disruptive behavior with de-escalation or use of force. The ability of a lieutenant to re- spond to dangerous situations is essential to maintaining the safety and security of the jail as well as those working in it.” In short, the Sheriff maintains, “it is an essential function of the job.” 2. Written Job Description The job description here supports finding that responding physically to violent emergencies is an “essential function” of the lieutenant position. According to the description, a “Lieu- tenant ensures the safety and security of inmates, staff, and citizens through the enforcement of proper detention policies and procedures.” And “Key Responsibilities and Duties” in- clude “oversee[ing] the receipt, care, and release of inmates and their belongings, [e]nforc[ing] Cook County Sheriff’s Of- fice and Department of Corrections policies and procedures,” defusing “and control[ling] disruptive behavior by appropri- ate verbal orders and/or appropriate use of physical force,” and “[r]espond[ing] to emergency situations … such as med- ical, fire, [and] security.” 2
2 Tate contends that the job description is not wholly reliable because it does not accurately describe actual practices. In support, Tate cites tes- timony from Kieran Mundt, chief steward for the correctional lieutenants. 10 No. 21-2752
Here, the job description reinforces the Sheriff’s judgment. Lieutenants are always ensuring safety through enforcement, and although some assignments involve less frequent need for the use of physical force, none of the assignments require no use of force. 3. Time Spent Performing the Function and Emergency Responses As a general rule, the more time an employee spends per- forming a function, the more essential the function is likely to be. There are exceptions, however, particularly where the job includes emergency response duties. A function that is per- formed only rarely may still be essential. See Vargas, 980 F.3d at 1189 (affirming summary judgment for employer: “an es- sential function need not encompass the majority of an em- ployee’s time, or even a significant quantity of time, to be es- sential”), quoting Basith v. Cook County, 241 F.3d 919, 929 (7th Cir. 2001) (affirming summary judgment for employer). The special feature of this case is the role of correctional lieutenants in responding to emergencies, including those in- volving inmate violence. The crux of Tate’s argument is that responding to violent emergencies is not an essential function for all correctional lieutenants because some assignments only rarely require the use of physical force. Tate argues that there is less need to respond to violent emergencies as a lieu- tenant because, as he sees it, “the higher up in rank that you go, the less inmate contact that you” have. Retired Lieutenant
Because Mundt’s testimony speaks less to the written job description and more to “the employer’s actual practices in the workplace,” see Miller, 643 F.3d at 198, we address his testimony under the EEOC’s third and sixth categories of evidence. No. 21-2752 11
Duane Collins and current Lieutenant Thomas Cintron cor- roborated this view. Correctional jobs become “less physical” as one moves up in the chain of command. And some lieuten- ants have rarely, if ever, actually needed to respond with physical force to counter inmate violence. The relative frequency with which a lieutenant is required to use physical force depends in part on a lieutenant’s partic- ular assignment. Chief steward for the correctional lieuten- ants Kieran Mundt testified that the particular assignment de- termines how often a lieutenant needs to defuse and “control disruptive behavior” through the “use of physical force.” It “really depends on where you work.” An assignment to Laundry or Records, for example, will likely require less use of force. Lieutenant Angela Lewis testified that, as a lieuten- ant assigned to External Operations and Records, she never needed to respond to emergency situations or to defuse and control disruptive behavior with physical force. And Lieuten- ant Collins testified that he had never fought with an inmate when he worked in Records. If the essential-function inquiry were about probabilities, Tate would have a stronger argument. Yet we cannot lose sight of the need for emergency responses in law enforcement and public safety agencies like the Corrections Department of the Cook County Sheriff. As the district court observed, many police officers never discharge their service weapons in the line of duty, but that “does not mean that weapons profi- ciency for all is optional.” Or similarly, as we have noted, while a firefighter “may not often have to carry an uncon- scious adult from a burning building, failing to require that he ably perform this function when called upon would run counter to his duty to public safety.” Vargas, 980 F.3d at 1189. 12 No. 21-2752
Even Chief Steward Mundt confirmed that, assignments aside, a lieutenant always “[e]nforces Cook County Sheriff’s Office and Department of Corrections policies and proce- dures” and “ensures the safety and security of inmates, staff, and citizens through the enforcement of proper detention pol- icies and procedures.” So while Tate has offered evidence that the right assignment would mean that he might never need to engage physically with any violent inmates, that evidence does not answer whether being able to do so is an “essential function” for correctional lieutenants. 4. The Consequences of Not Requiring Performance of the Function Under the ADA regulation on essential functions, we also examine “the impact of not requiring the employee to per- form the function.” Vargas, 980 F.3d at 1188, citing 29 C.F.R. § 1630.2(n)(3)(iv). Here, the consequences of not requiring Tate to respond with physical force in violent emergencies could be innocuous, but they could also be grave. Tate argues that our case law shows that not every em- ployee must always be able to perform every job function. That point is certainly correct as a general rule, and it means that an employer who might prefer that employees be inter- changeable may need to bend that preference to accommo- date an employee with a disability. The problem for Tate is that the cases establishing that general principle arose in very different contexts: they did not involve jobs with public safety emergency duties. In Miller v. Illinois Department of Transportation, for exam- ple, we recognized that where employees work as a team, “each member” of the team might not have “to be able to do No. 21-2752 13
every task required of the entire team.” 643 F.3d at 198 (em- phasis in original). In Miller one person on a highway bridge crew had been diagnosed with acrophobia—a morbid fear of heights. The issue was whether performing tasks more than 25 feet above the ground was an essential function. Id. at 197– 98. We reversed summary judgment for the employer because some evidence showed that the bridge crew worked as a team, that no individual was assigned permanently to any one task, and that there was no requirement that bridge crew members rotate from task to task in an organized, routine fashion. We concluded that a reasonable jury could find that it was not necessary for any one member of the bridge crew to be able to do every task of the bridge crew as a whole. Id. at 198. The plaintiff had “presented evidence that … the team accommodated the various skills, abilities, and limitations of the individual team members by organizing itself according to those skills, abilities, and limitations.” Id. Since one team member could not weld, for example, other members of the team would do the welding. Id. The same was true with work more than 25 feet above the ground. Id. at 197. Miller remains good law, but context matters. In the Cook County Department of Corrections, while the correctional staff surely work as a team in a larger sense, they cannot share the responsibility of responding to violent emergencies and sudden physical altercations by stepping aside and calling others. Responding to a public safety emergency is just not the same as maintaining bridges. Nor is it the same as being able to drive a bus. In Brown v. Smith, one question was whether it was essential for a street supervisor in a local bus system to have a commercial driver’s license. 827 F.3d at 613–14 (affirming summary judgment for 14 No. 21-2752
employee). Street supervisors generally “helped ensure that drivers left the bus garage with the requisite paperwork and with operational vehicles.” Id. at 612. Occasionally they might be called upon to drive a bus, but “driving buses was not a key responsibility for supervisors because other individuals with CDLs were typically available to drive buses when nec- essary.” Id. at 614. A replacement driver “could generally be secured within 10 minutes.” Id. In public transportation and many similar contexts, Brown makes sense. Waiting ten minutes for a replacement bus driver would not likely cause serious consequences. The same simply cannot be said in law enforcement or corrections. To be sure, in certain public safety and law enforcement posi- tions, a person can sometimes wait for backup in an emer- gency. But not always. If a firefighter waits ten minutes for a replacement, the opportunity “to carry an unconscious adult from a burning building” may be lost. See Vargas, 980 F.3d at 1189. The building may have burnt to the ground. The emer- gency itself dictates when action must be taken. The same rea- soning applies here. If Tate were unable to respond as needed to a violent emergency, the consequences could be grave. As we observed in Miller, “task reassignments within a job can be unreasonable in situations where the reassigned task is an es- sential function of the job. In those situations, reassignment or delegation of the task would equate, essentially, to reassign- ment or delegation of the job itself.” 643 F.3d at 199. 5. Collective Bargaining Agreement The district court did not discuss the collective bargaining agreement governing correctional lieutenants, but it is rele- vant. The agreement creates a seniority-based bidding system for lieutenants on active duty to bid on vacant assignments. No. 21-2752 15
Although seniority is generally defined as the length of the employee’s continuous employment since being hired, lieu- tenants bidding on vacancies are ranked according to their relative seniority as sergeants. As the Supreme Court has noted, a seniority system will prevail over a requested accom- modation “in the run of cases.” US Airways, Inc. v. Barnett, 535 U.S. 391, 394 (2002). Based on US Airways, we have said that “it is unreasonable to assign an employee to a position as an accommodation if doing so would violate the employer’s sen- iority system.” Dunderdale v. United Airlines, Inc., 807 F.3d 849, 854 (7th Cir. 2015) (affirming summary judgment for em- ployer); see also Eckles v. Consolidated Rail Corp., 94 F.3d 1041, 1051 (7th Cir. 1996) (affirming summary judgment for em- ployer where employee with disability sought accommoda- tion that would conflict with bona fide seniority system for shift assignments under collective bargaining agreement). Here, the Sheriff argues that Tate seeks to “override the collective bargaining agreement’s seniority-bidding provi- sions … which the ADA does not require.” While it is true that US Airways and Dunderdale would not require accommodat- ing Tate if the seniority-bidding system were inflexible, the agreement here provides that the Sheriff “will consider such factors as training, education, experience, skills and ability, in addition to seniority” when making specific job assignments. (Emphasis added.) US Airways has something to say about the presence of such discretionary power. Discussing “special circumstances” that might override the presumption of unreasonable accommodation that at- taches in a seniority system, the Court noted that a “plaintiff might show that the system already contains exceptions such that, in the circumstances, one further exception is unlikely to 16 No. 21-2752
matter.” US Airways, 535 U.S. at 405. In this case, the Sheriff’s discretion to consider factors like “ability, in addition to sen- iority,” creates those special circumstances. While the Court was addressing the reasonableness of a proposed accommo- dation, its logic still applies to the essential-functions inquiry. The agreement here does not help Tate create a genuine dis- pute regarding essential functions, and this may be why the district court never discussed it. But the agreement favors Tate in that it at least dispels the Sheriff’s argument that the sen- iority system alone renders Tate’s proposed accommodation unreasonable. In most cases, the Sheriff’s argument might be strong, but this collective bargaining agreement lacks the ri- gidity present in US Airways and Dunderdale. 6. Work Experience of Past Incumbents in the Job The sixth and seventh regulatory categories taken together speak to “the employer’s actual practices in the workplace.” Miller, 643 F.3d at 198. But they are distinct. The seventh cate- gory looks to the “current work experience of incumbents in similar jobs.” 29 C.F.R. § 1630.2(n)(3)(vii) (emphasis added). Here, those are the officer and sergeant positions. The sixth category considers the “work experience of past incumbents in the job.” 29 C.F.R. § 1630.2(n)(3)(vi) (emphasis added). Here, that’s the lieutenant position, so we start with the evidence on the position Tate seeks. As noted, both former and current lieutenants testified that they have less physical contact with inmates than do ser- geants or officers. Some lieutenants have rarely, if ever, needed to counter inmate violence with physical force. Often they delegate responsibilities for the “receipt, care, and re- lease of inmates” to officers and sergeants. And some assign- ments are centered on non-physical responsibilities. In No. 21-2752 17
External Operations, lieutenants primarily ensure adequate staffing and conduct rounds. In Records, where Tate has worked as a sergeant, lieutenants focus on overseeing dis- charges and staff, entering court orders, tracking inmate sen- tences, and ensuring timeliness. Some of these assignments can be long-term, with some lieutenants remaining in them for years at a time. In another context—one outside the realm of public safety and law enforcement—this sort of evidence might swing the analysis in Tate’s favor or at least create a genuine dispute of fact. But evidence speaking to the actual experiences of lieutenants also works against Tate. Lieutenant Collins testified that in his tenure at Cook County DOC, there had been six riots. While all of these riots occurred before he was promoted, Collins said that riots are “all out,” where “all detainees are fighting and all the officers,” including lieutenants, “are trying to quell the problem.” There is no way to predict when a lieutenant will need to use force, and the need can arise “anywhere in the jail.” This anecdotal evidence is supported by undisputed data showing that from November 2016 to November 2018 there were 114 incidents “where correctional lieutenants were required to use force to control inmates.” As we observed in Miller v. Illinois Department of Correc- tions, a “prison has to be able to call upon its full staff of cor- rectional officers for help in putting down a prison riot, and therefore each officer must have … the capability for such re- sponse.” 107 F.3d 483, 485 (7th Cir. 1997) (affirming summary judgment for employer). The point is salient for lieutenants as well as officers in light of undisputed evidence showing that lieutenants are not above the need to use physical force, 18 No. 21-2752
whether in response to a full-blown riot, just a single unruly inmate, or something in-between. As in Dargis v. Sheahan, 526 F.3d 981 (7th Cir. 2008), the evidence Tate has provided is in- sufficient to create a genuine dispute of material fact. Tate has not offered evidence that any of these lieutenants “needed to avoid all inmate contact at all times,” even if they held assign- ments where inmate contact was only limited. Id. at 987 (em- phasis added) (affirming summary judgment for employer). 7. Current Work Experience of Incumbents in Similar Jobs While evidence from similar jobs is helpful, its usefulness has its limits. Here, most of the relevant evidence speaks to the experiences of lieutenants. But Tate’s own experience as a sergeant provides some support for the view that responding to violent emergencies might not be an essential function of all lieutenant assignments. Recall that the Sheriff had previously agreed to accommo- date Tate’s medical restrictions by allowing Tate to work in the Classification Unit, where the possibility of violence or physical conflict was relatively remote. This accommodation was part of a settlement agreement between Tate and the Sher- iff’s Office that resolved an earlier failure-to-accommodate claim. If it was possible to accommodate Tate’s restrictions as a sergeant, why is it not possible to afford him the same ac- commodations as a lieutenant? The argument has superficial appeal, but it does not persuade us to reverse the district court. First, the sergeant and lieutenant positions may have many similarities, but they are still different positions. What is true for one position is not necessarily true for another. No. 21-2752 19
Second, just because the Sheriff has accommodated Tate as a sergeant does not mean that responding to violent emergencies is not an essential function of the position. Tate’s accommodation as a sergeant may very well go above and beyond what the ADA requires. See Shell, 789 F.3d at 720 (reversing summary judgment for employer: if “the duty at issue is an essential function of the job” that the employer “previously accommodated … beyond what the ADA demands when it did not require” the employee to perform the duty, then the employer need not “continue to go beyond the ADA’s requirements.”); Winfrey v. City of Chicago, 259 F.3d 610, 616 (7th Cir. 2001) (affirming summary judgment for employer: “an accommodation that the [employer] was not obliged to perform … will not count as evidence that the [modified] position” is the same as the unmodified position); Amadio v. Ford Motor Co., 238 F.3d 919, 929 (7th Cir. 2001) (affirming summary judgment for employer: “[I]f an employer ‘bends over backwards to accommodate a disabled worker … it must not be punished for its generosity by being deemed to have conceded the reasonableness of so far- reaching an accommodation.’”), quoting Vande Zande v. Wisconsin Dep’t of Admin., 44 F.3d 538, 545 (7th Cir. 1995) (affirming summary judgment for employer). Third, the law should not penalize parties for earlier set- tlements. This prior accommodation as a sergeant was not gratuitous. It was part of a settlement agreement—a contract. The settlement agreement rests on “‘a bargained-for ex- change, whereby the promisor … receives some benefit, or the promisee … suffers detriment.’” JPMorgan Chase Bank, N.A. v. Asia Pulp & Paper Co., 707 F.3d 853, 866 (7th Cir. 2013), quoting Vassilkovska v. Woodfield Nissan, Inc., 358 Ill. App. 3d 20, 294 Ill. Dec. 207, 830 N.E.2d 619, 624 (2005). Here, Tate and the 20 No. 21-2752
Sheriff’s Office contemplated precisely this situation when they entered the agreement. They bargained for it. Tate was to remain a classification sergeant, accommodating his disabil- ity, and he could “seek promotion to Lieutenant at any time in the future provided” that he could “perform the essential functions” of the position. The settlement agreement was an “agreement to accommodate … rather than an admission that” any particular job function was “not an essential func- tion.” Higgins v. Union Pacific Railroad Co., 931 F.3d 664, 671 (8th Cir. 2019) (affirming summary judgment for employer). This does not mean that we wholly discount Tate’s experi- ences as a sergeant, but their usefulness is limited. Considering all the evidence on all the relevant factors, we agree with the district court that even though violent work- place emergencies might be infrequent, the undisputed facts show that the ability to respond to violent emergencies is an essential function for correctional lieutenants. Although the Sheriff may choose to accommodate a disability like Tate’s, the ADA does not require him to excuse Tate from the require- ment that he be able to respond physically to violent emergen- cies. C. Tate’s Alternative Argument Tate argues in the alternative that even if responding to violent emergencies is an essential function of the lieutenant position, he actually can “respond to emergency situations if truly necessary.” Tate offers the testimony of three correc- tional lieutenants who have worked alongside him. In their personal opinions, nothing would “prevent” Tate from phys- ically restraining an inmate in an emergency. Regardless of the clear instructions that doctors and nurses have given Tate to “avoid situations in which there is a significant chance of No. 21-2752 21
violence or conflict,” he contends he could respond “if neces- sary” in an emergency. Tate’s alternative argument tries to have it both ways. On one hand, he seeks an accommodation because he is to “avoid situations in which there is a significant chance of violence or conflict.” On the other, he seeks to convince us that his medi- cal restriction is not as restrictive as it appears. He argues that the Sheriff’s Office simply misunderstands the word “avoid.” To Tate, “avoid” does not mean “never do it.” It means some- thing more like “limit,” and defining it should be part of the ADA’s required “interactive process” between Tate and the Sheriff’s Office. He argues that the meaning of “avoid” is a question for a jury, not this court. We disagree. Health care professionals who prescribe these kinds of medical restrictions know the difference between “avoid” and “occasionally” and “sometimes,” particularly with respect to the physical demands of jobs. So do we. Federal courts fre- quently encounter these concepts in judicial reviews of Social Security disability decisions. A typical example appears in Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345 (7th Cir. 2005), where the administrative law judge wrote that the claimant had the residual functional capacity to: “lift/carry 10 pounds frequently and 20 pounds occasionally, push/pull 10 pounds fre- quently and 20 pounds occasionally, sit 6 hours in an 8–hour day, walk 6 hours in an 8–hour day, stand 6 hours in an 8– hour day, avoid all exposure to temperature extremes, avoid concentrated exposure to dust/fumes, and no commercial driving.” Id. at 352 (emphases added). “Avoid” means “avoid.” Merriam-Webster defines “avoid” as “to keep away from, to prevent the occurrence or effectiveness of,” and “to refrain from.” Avoid, Webster’s 22 No. 21-2752
Third New International Dictionary 151 (unabr. ed. 1993). The Oxford English Dictionary defines “avoid,” in the “usual cur- rent sense,” as “to leave alone,” to “keep clear of or away from,” to “shun,” to “have nothing to do with,” and to “re- frain from.” Avoid, 1 The Oxford English Dictionary 823 (2d ed. 1989). “Avoid” does not mean “only occasionally” or “limit,” which Merriam-Webster defines as “to restrict the bounds or limits of” or “to curtail or reduce in quantity or ex- tent.” Limit, Webster’s Third New International Dictionary 1312 (unabr. ed. 1993). No, “avoid” is more prohibitive. And it was this prohibitive meaning that the Sheriff’s Office natu- rally discerned when Tate asked for an accommodation. Tate cannot have it both ways. “Avoid” cannot mean “avoid” under one legal theory and “limit” under another. An employer must respect a medical restriction like Tate’s ac- cording to its plain meaning. See Kotaska v. Federal Express Corp., 966 F.3d 624, 631 (7th Cir. 2020) (affirming summary judgment for employer: “The ADA, of course, does not obli- gate an employer to let its employees exceed their doctor’s re- strictions, even if they think they can.”). The Sheriff’s Office cannot be required to read the word “avoid” out of Tate’s medical restrictions. Tate is not entitled to ask a jury to bend the meaning of those restrictions. While the district court’s opinion was too deferential to the employer’s judgment, we agree that, on this record, the ability to respond physically to violent emergencies is an essential function for Cook County correctional lieutenants. Under his medical restrictions, plaintiff Tate cannot fulfill that essential function, so he is not a “qualified individual” for the correc- tional lieutenant position he sought. The judgment of the dis- trict court is AFFIRMED.