Sherlyn Brown v. Milwaukee Board of School Dire

855 F.3d 818, 33 Am. Disabilities Cas. (BNA) 713, 2017 WL 1734439, 2017 U.S. App. LEXIS 7958
CourtCourt of Appeals for the Seventh Circuit
DecidedMay 4, 2017
Docket16-1971
StatusPublished
Cited by50 cases

This text of 855 F.3d 818 (Sherlyn Brown v. Milwaukee Board of School Dire) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Sherlyn Brown v. Milwaukee Board of School Dire, 855 F.3d 818, 33 Am. Disabilities Cas. (BNA) 713, 2017 WL 1734439, 2017 U.S. App. LEXIS 7958 (7th Cir. 2017).

Opinion

HAMILTON, Circuit Judge.

This appeal under the Americans with Disabilities Act addresses a disabled employee’s obligation to participate in identifying reasonable accommodations for her condition.

Plaintiff Sherlyn Brown was an assistant principal for defendant Milwaukee Public Schools until she badly injured her knee while restraining a student. When she returned to work following surgery, she and her doctor told Milwaukee Schools that she could not be “in the vicinity of potentially unruly students.” Since virtually all students are “potentially” unruly, Milwaukee Schools understood that limit to bar virtually all contact with students. It repeatedly communicated that understanding to Brown as it tried to accommodate her disability by finding her a new position. When Brown’s three-year leave of absence expired before a suitable position was found, Milwaukee Schools fired her. Brown sued under the Americans with Disabilities Act, claiming that her disability had never prevented interaction with students and that Milwaukee Schools failed to accommodate her disability. The district court granted summary judgment for Milwaukee Schools, and Brown has appealed.

We affirm. Because Brown and her doctors repeatedly told Milwaukee Schools that she could not be “in the vicinity of potentially unruly students,” Milwaukee Schools is not liable for failing to move her to a position requiring such proximity. All but one of the other jobs Brown identifies as reasonable accommodations would have required such proximity. The lone exception would have been a promotion for which Brown was not the most qualified candidate. The Act did not require Milwaukee Schools to promote her as an accommodation.

I. Legal Framework

We review de novo a district court’s grant of summary judgment. Our account of the facts views the evidence in the light most favorable to the non-moving party, but we must affirm if no reasonable trier of fact could find in favor of the non-moving party. White v. City of Chicago, 829 F.3d 837, 841 (7th Cir. 2016).

Our account of the facts will be easier to follow with a brief outline of the reasonable accommodation duty under the Americans with Disabilities Act. The Act requires employers to make “reasonable accommodations that will allow a ‘qualified individual with a disability’ to perform the essential functions of his or her job.” Miller v. Illinois Dep’t of Transportation, 643 F.3d 190, 197 (7th Cir. 2011), quoting 42 U.S.C. § 12112(b)(5)(A). “Reassigning disabled employees to vacant positions that they can perform is a reasonable accommodation.” Emerson v. Northern States Power Co., 256 F.3d 506, 515 (7th Cir. 2001), citing Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 693 (7th Cir. 1998); 42 U.S.C. § 12111(9) (reasonable accommodation “may include ... reassignment to a vacant position”).

A disabled employee need not be the most qualified applicant for a vacant position, but she must be qualified for it. EEOC v. United Airlines, Inc., 693 F.3d 760, 764 (7th Cir. 2012) (holding that deviation from a best-qualified selection policy does not always represent an undue hardship for the employer); Jackson v. City of Chicago, 414 F.3d 806, 813 (7th Cir. 2005) (“The employer need only transfer the employee to a position for which the employee is otherwise qualified.”), quoting Rehling v. City of Chicago, 207 F.3d 1009, 1014 (7th Cir. 2000). The Act does not, however, *821 require employers to promote employees to accommodate them. Malabarba v. Chicago Tribune Co., 149 F.3d 690, 699 (7th Cir. 1998), citing Shiring v. Runyon, 90 F.3d 827, 832 (3d Cir. 1996).

Identifying reasonable accommodations for a disabled employee requires both employer and employee to engage in a flexible, interactive process. See Stern v. St. Anthony’s Health Center, 788 F.3d 276, 292 (7th Cir. 2015), citing Kauffman v. Petersen Health Care VII, LLC, 769 F.3d 958, 963 (7th Cir. 2014). Both parties are responsible for that process. If a reasonable accommodation was available but the employer prevented its identification by failing to engage in the interactive process, that failure is actionable. Id. On the other hand, if the employee “does not provide sufficient information to the employer to determine the necessary accommodations, the employer cannot be held liable for failing to accommodate the disabled employee.” Reeves ex rel. Reeves v. Jewel Food Stores, Inc., 759 F.3d 698, 702 (7th Cir. 2014), citing Beck v. University of Wisconsin Board of Regents, 75 F.3d 1130, 1135 (7th Cir. 1996).

II. Factual and Procedural Background

In light of these principles, the critical facts here concern (1) the communications between Brown and Milwaukee Schools about the extent of her restrictions, especially her ability to be in the vicinity of potentially unruly students; and (2) the potential reassignments she discussed with Milwaukee Schools as accommodations for her disability.

A. Brown’s Injuries

In 2006, Brown was an assistant principal for Milwaukee Schools. She began to experience severe knee pain while performing the duties of that position. Her doctor diagnosed her with severe arthritis and recommended that she be moved to a job with limited mobility requirements. For the next few years, Milwaukee Schools accommodated her by changing the location of her work and modifying her job duties. It excused her from breaking up fights and physically intervening with students, which would normally be an assistant principal’s responsibility. She arranged those accommodations with James Gorton, Milwaukee School’s employment specialist who continued to work on her case for the remainder of her employment. During that time, Brown underwent knee replacement surgery.

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855 F.3d 818, 33 Am. Disabilities Cas. (BNA) 713, 2017 WL 1734439, 2017 U.S. App. LEXIS 7958, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sherlyn-brown-v-milwaukee-board-of-school-dire-ca7-2017.