207 F.3d 1009 (7th Cir. 2000)
Donald Rehling,    Plaintiff-Appellant,v.The City of Chicago,   a municipal corporation, Defendant-Appellee.
No. 99-1771
In the  United States Court of Appeals  For the Seventh Circuit
Argued January 10, 2000Decided March 21, 2000

Appeal from the United States District Court   for the Northern District of Illinois, Eastern Division.  No. 96 C 6467--Robert W. Gettleman, Judge. [Copyrighted Material Omitted]
Before Flaum, Manion, and Evans, Circuit Judges.
Flaum, Circuit Judge.


1
Donald Rehling appeals the  district court's grant of partial summary  judgment1 to the City of Chicago (the "City"),  alleging that the district court erred in  determining that there was no genuine dispute as  to whether the City offered Rehling a reasonable  accommodation2 under the Americans With  Disabilities Act ("ADA"), 42 U.S.C. sec. 12101 et  seq. Rehling also appeals the final judgment the  district court entered against him following a  jury verdict in favor of the City on his  disparate treatment ADA claim,3 arguing that  the district court made a series of erroneous  evidentiary rulings. For the reasons stated  herein, we affirm the decision of the district  court.

I.  Facts

2
Donald Rehling, the appellant, is a police  officer with the Chicago Police Department (the  "CPD"). He is currently on a leave of absence and  receives a disability pension as the result of a  December 5, 1994 accident in which he was struck  by an automobile. As a consequence of the  injuries sustained in that accident, Rehling had  his left leg amputated just above the knee.


3
On December 1, 1995, following a long period of  medical leave, Rehling submitted a request that  he be returned to work on limited duty status.  Rehling specifically requested to return to work  in District 16, the police district to which he  had been assigned prior to his accident. At this  time the CPD's Medical Services Section contacted  Thomas O'Connor, the District Secretary in  District 16, who indicated that there was a  position for Rehling in that district. Although  Rehling was cleared to return to restricted duty  by Jean Blake, the Medical Administrator of the  Medical Services Section, both parties agree that  Rehling was unable to function in his previous  position as an officer in a patrol car.4


4
Rehling reported for duty at District 16 on  December 7, 1995. Upon his return, Harry  Tannehill, the Commander of the 16th Police  District, assigned Rehling to assist with  processing citations. Processing citations is a  civilian position, and under the police  department's collective bargaining agreement it  may not be filled by a police officer.  Furthermore, although Rehling was initially  assigned to help in processing citations, there  was no position in District 16 for an assistant  to the citations clerk. The City asserts that  there were no other desk jobs available in  District 16 during December 1995.


5
On December 8, 1995, Rehling was informed that  he could no longer work in District 16. Commander  Tannehill testified that he had called Deputy  Chief Frank Radke about finding an assignment for  Rehling because there were no desk jobs available  in District 16. Rehling disputes that it was  Tannehill who made the decision to transfer him  out of District 16. According to Rehling, that  decision came from the General Counsel to the  Superintendent of Police, Donald Zoufal, through  Chief of Patrol John Cadogan. When Medical  Administrator Blake called Zoufal about Rehling's  change of assignment, Zoufal stated that he made  the decision to transfer Rehling because an  officer using a walker was not the image the  police department wanted to convey to the public.


6
Rehling testified that he called Cadogan about  his reassignment from District 16 and was  informed that the decision had been made by  Zoufal. Rehling then contacted Zoufal to discuss  the matter and was allegedly told by Zoufal that  he could not work in District 16 because of his  disability and because his return to work would  set a precedent for other disabled officers who  desired to work in police districts. In addition,  the head of the Fraternal Order of Police,  William Nolan, stated that when he called Zoufal  about Rehling's transfer, Zoufal responded that  the CPD could not have a "cripple" in public view  because of liability concerns.


7
Commander Tannehill informed Rehling of two  possible reassignments, one working the midnight  shift at O'Hare Airport and one in the  Alternative Response Unit. During his deposition,  Rehling stated that he did not want the O'Hare  assignment because of concerns about the  availability of parking and the hours. This  assignment was later withdrawn as an option because it was determined that public  transportation did not stop close enough to  O'Hare to accommodate Rehling. At the time this  offered position was withdrawn, Rehling alleges  that he was "leaning toward" taking it.


8
Rehling admits that he could perform the duties  of the Alternative Response Unit, whose members  take incoming reports and determine whether it is  necessary to dispatch a squad car to the scene.  However, Rehling also testified that he did not  know how he would get to work at that unit.  Rehling stated that he did not feel comfortable  accepting a ride from another officer that the  department had arranged for him, that the Chicago  Transit Authority's disability rider program was  unreliable, and that he was not able to take  public transportation.


9
Despite Rehling's concerns about transportation,  Chief of Patrol Cadogan submitted a request to  have Rehling detailed to the Alternative Response  Unit. That request was granted, and Rehling was  given until December 20, 1995 to report for duty.  Instead of reporting, Rehling used his  accumulated compensatory and furlough time and  then applied for a disability pension.


10
On October 3, 1996, Rehling filed suit against  the City under the ADA. In his complaint, Rehling  alleged that the City had discriminated against  him on the basis of his disability by not  allowing him to work as a citation clerk in  District 16. In addition, Rehling asserted that  the City had failed to provide him a reasonable  accommodation.


11
On December 3, 1997, the City filed a motion  for summary judgment and a memorandum of law in  support of that motion. The district court denied  that motion, but held that Rehling had  effectively abandoned his reasonable  accommodation claim because he "d[id] not really  dispute that either of the two positions [offered  to him] would amount to a reasonable  accommodation under the ADA." The district court  further held that Rehling still had a disparate  treatment claim based on his allegations that the  City transferred him out of District 16 because  of his disability, and the case proceeded to  trial on that theory. The City filed a motion  seeking to bar Rehling from relitigating his  reasonable accommodation claim at trial, and that  motion was granted.


12
Prior to trial, the City also filed a motion in  limine to bar evidence of the substance of  conversations between Zoufal, the CPD's General  Counsel, and ranking members of the CPD, on the  ground that the conversations were protected by  the attorney-client privilege. The district court  held an in camera hearing on the attorney-client  privilege issue on August 26, 1998, and Zoufal  was questioned about the conversations the City  asserted were protected. The district court  granted the City's motion to bar evidence of the  substance of conversations between Zoufal and  members of the CPD. However, the motion  specifically permitted Rehling and Nolan to  testify as to their conversations with Zoufal.


13
On March 2, 1999, trial began on Rehling's  disparate treatment claim. On March 4, 1999, the  jury returned a verdict for the City. Rehling now  appeals the district court's grant of partial  summary judgment as to the issue of reasonable  accommodation, as well as the district court's  entry of final judgment for the City following a  jury verdict in favor of the City on Rehling's  disparate treatment claim.

II.  Analysis
A.

14
Rehling first challenges the district court's  grant of partial summary judgment to the the City  as to the reasonable accommodation issue. In  ruling for the City on this point, the court  found that Rehling had effectively abandoned his  reasonable accommodation claim because he did not  dispute that the alternative positions offered to  him were reasonable accommodations. The district  court accordingly limited the issues to be  presented to the jury to those of disparate  treatment. We review the district court's  decision in this regard as a grant of partial  summary judgment to the City and subject it to de  novo review. See Miranda v. Wisconsin Power &  Light Co., 91 F.3d 1011, 1014 (7th Cir. 1996).


15
1.  The Availability of a Position in District 16


16
Rehling first argues that the district court  erred in granting the City partial summary  judgment as to the reasonable accommodation issue  because there was a genuine dispute about the  availability of a position in District 16.  According to Rehling, a jury should have been  allowed to determine whether a position was in  fact available in District 16, and whether a  reasonable accommodation in an alternative  position was necessary. In support of this  argument, Rehling testified that Commander Donald  Bergerin, his District Commander at the time of  his injury, told him that there would be a place  for him in District 16, and that District 16  Secretary O'Connor told the Medical Services  Section that there was a position available for  Rehling in District 16. In addition, Rehling  notes that he was initially placed in District 16  and was permitted to do citation work by District  Commander Tannehill. Rehling argues that this  evidence was sufficient to overcome the City's  motion for summary judgment.


17
Rehling concedes that he was not able to return  to work in his previous capacity as an officer in  a patrol car, but he correctly argues that "the  ADA may require an employer to reassign a  disabled employee to a different position as  reasonable accommodation where the employee can  no longer perform the essential functions of  [his] current position." Gile v. United Airlines,  Inc., 95 F.3d 492, 498 (7th Cir. 1996); see 42  U.S.C. sec. 12112(b)(5)(A), (B). However, "[t]his  duty to reassign a disabled employee has limits.  The employer need only transfer the employee to  a position for which the employee is otherwise  qualified." Baert v. Euclid Beverage, Ltd., 149  F.3d 626, 633 (7th Cir. 1998) (citing Cochrum v.  Old Ben Coal Co., 102 F.3d 908, 913 (7th Cir.  1996)); Gile, 95 F.3d at 499. In this case  Rehling requested an accommodation, and he was  offered a choice between a position working the  midnight shift at the airport and a position at  the Alternative Response Unit. See 42 U.S.C. sec.  12111(9)(B) (noting that assignment to a vacant  position can constitute a reasonable  accommodation). While Rehling does not contest  the suitability of the accommodations made, he  does suggest that those accommodations would be  rendered unreasonable to the extent he could show  the availability of a position in District 16.


18
It is well-established that an employer is  obligated to provide a qualified individual with  a reasonable accommodation, not the accommodation  he would prefer. See Malabarba v. Chicago Tribune  Co., 149 F.3d 690, 699 (7th Cir. 1998); Gile, 95  F.3d at 499; Schmidt v. Methodist Hospital, 89  F.3d 342, 344-45 (7th Cir. 1996). Accordingly, an  employee who requests a transfer cannot dictate  the employer's choice of alternative positions.  See Gile, 95 F.3d at 499 ("[W]hen an employee  requests a transfer as reasonable accommodation  and the employer offers reasonable accommodation,  which the employee then refuses, the employer  cannot be held liable for failing to reasonably  accommodate the employee by transferring him to  another position."); see also Webster v.  Methodist Occupational Health Centers, Inc., 141  F.3d 1236, 1238 (7th Cir. 1998). However, this  Court has also held that "[d]etermining whether  an accommodation is reasonable depends, to a  significant extent, upon determining whether the  employer has acceded to the disabled employee's  request." Feliberty, M.D. v. Kemper Corp., 98  F.3d 274, 280 (7th Cir. 1996). Under these  holdings, Rehling's request to remain in District  16 was relevant to, but not dispositive of, his  reasonable accommodation claim.


19
If Rehling were able to show the availability  of a position in District 16, we would agree that  there was an issue of fact as to whether the CPD  adequately acceded to Rehling's request. However,  in this case that issue of fact is not material  because Rehling has failed to demonstrate that  there was an available position in District 16.  Rehling does not indicate which positions were  available to him in District 16, and states only  that his initial placement as a citations clerk  demonstrates that the City could have placed him  in that position permanently. However, there is  no evidence that the citations clerk position in  which Rehling was placed was anything but  temporary. See McCreary v. Libbey-Owens-Ford Co.,  132 F.3d 1159, 1165 (7th Cir. 1997) ("Occasional  opportunities to work in another department are  not equivalent to a vacancy for a permanent  position."); see also Malabara, 149 F.3d at 697  (stating that "the ADA does not require that  employers convert temporary work assignments into  permanent positions"). To the contrary, the  relevant collective bargaining agreement provides  that the citations clerk jobs are to be filled by  civilian employees only. See Old Ben Coal, 102  F.3d at 912-13 ("An employer is not required to  violate the provisions of a collective bargaining  agreement to reassign a disabled employee  pursuant to the ADA.") (citing Eckles v.  Consolidated Rail Corp., 94 F.3d 1041, 1051 (7th  Cir. 1996)). Furthermore, the evidence presented  by the City showed that there were no non-  civilian desk positions available in District 16  when Rehling returned to work in December 1995.  Because Rehling failed to identify an available  position in District 16 for which he was  qualified, the district court was correct to  grant the City summary judgment on Rehling's  reasonable accommodation claim. See Dalton v.  Subaru-Isuzu Auto., Inc., 141 F.3d 667, 678 (7th  Cir. 1998) (stating that the "employer's duty  reasonably to accommodate a disabled employee  includes reassignment of the employee to a vacant  position for which she is qualified") (emphasis  added) (citing 42 U.S.C. sec. 12111(9)(B));  Libbey-Owens-Ford Co., 132 F.3d at 1165 (stating  that a plaintiff has the burden of showing that  a vacant position exists for which he is  qualified).

2.  The Interactive Exchange

20
Rehling next argues that the district court  erred in granting the City summary judgment on  the reasonable accommodation claim because there  was a disputed issue of material fact as to  whether the City engaged in the proper kind of  interactive exchange regarding Rehling's  placement. The federal regulations implementing  the ADA state that "[t]o determine the  appropriate reasonable accommodation it may be  necessary for the [employer] to initiate an  informal, interactive process with the qualified  individual with a disability in need of the  accommodation." 29 C.F.R. sec. 1630.2(o)(3). The  regulations further provide that "[t]he  appropriate reasonable accommodation is best  determined through a flexible, interactive  process that involves both the employer and the  [employee] with a disability." 29 C.F.R. pt.  1630, app.; see Beck v. University of Wis. Bd. of  Regents, 75 F.3d 1130, 1135 (7th Cir. 1996).  According to Rehling, the City violated the ADA  when it failed to engage in a good faith attempt  to include Rehling in the process of determining  the proper reasonable accommodation.


21
As we recognized in Beck, the ADA does envision  a flexible, interactive process by which the  employer and employee determine the appropriate  reasonable accommodation, see Beck, 75 F.3d at  1135; Bombard v. Fort Wayne Newspapers, Inc., 92  F.3d 560, 563 (7th Cir. 1996), and we have stated  that this process requires "a great deal of  communication." Bultemeyer v. Fort Wayne Comm.  Sch., 100 F.3d 1281, 1285 (7th Cir. 1996).  However, we have also stated that "[t]he  interactive process the ADA foresees is not an  end in itself; rather it is a means for  determining what reasonable accommodations are  available to allow a disabled individual to  perform the essential job functions of the  position sought." Sieberns v. Wal-Mart Stores,  Inc., 125 F.3d 1019, 1023 (7th Cir. 1997).  Because the interactive process is not an end in  itself, it is not sufficient for Rehling to show  that the City failed to engage in an interactive  process or that it caused the interactive process  to break down. Rather, Rehling must show that the  result of the inadequate interactive process was  the failure of the City to fulfill its role in  "determining what specific actions must be taken  by an employer" in order to provide the qualified  individual a reasonable accommodation. Beck, 75  F.3d at 1135.


22
Although the interactive process is not an end  itself, we recognize that this Court has  previously upheld judgments against employers, or  precluded summary judgment for employers, in  cases where there was an issue as to whether the  employer engaged in an appropriate interactive  process or caused such a process to breakdown.  See, e.g., Haschmann v. Time Warner Entertainment  Co., 151 F.3d 591 (7th Cir. 1998); Hendricks-  Robinson v. Excel Corp., 154 F.3d 685, 699-700  (7th Cir. 1998); Baert, 149 F.3d at 633-34;  Bultemeyer, 100 F.3d at 1285-87. However, those  cases did not involve reasonable accommodation  claims based solely on the employer's failure to  engage in an interactive process, nor did those  cases hold that the breakdown of an interactive  process could render an otherwise reasonable  accommodation unreasonable. Rather, in those  cases this Court found potential liability based  on an employer's failure to engage in an  interactive process in circumstances where the  plaintiff alleged that the result of that  breakdown was the employer's failure to provide  a reasonable accommodation.


23
Our conclusion that a plaintiff cannot base a  reasonable accommodation claim solely on the  allegation that the employer failed to engage in  an interactive process is consistent both with  this Court's assertion that the interactive  process is a means and not an end in itself, see  Sieberns, 125 F.3d at 1023, and with the remedial  purposes of the ADA, see 42 U.S.C. sec.  12101(a)(8) ("[T]he Nation's proper goals  regarding individuals with disabilities are to  assure equality of opportunity, full  participation, independent living, and economic  self-sufficiency for such individuals."). The ADA  seeks to ensure that qualified individuals are  accommodated in the workplace, not to punish  employers who, despite their failure to engage in  an interactive process, have made reasonable  accommodations. See Willis v. Conopco, Inc., 108  F.3d 282, 285 (11th Cir. 1997) (rejecting a  failure to investigate claim where no reasonable  accommodation could have been made) (citing Moses  v. American Nonwovens, Inc., 97 F.3d 446, 448  (11th Cir. 1996)). To hold employers liable for  the failure of an interactive process regardless  of whether a reasonable accommodation was made  would not serve the underlying purposes of the  ADA, and would, contrary to our own precedent,  elevate the ADA's interactive process requirement  to an end in itself.


24
Based on our understanding of the interactive  process requirement, we hold that a plaintiff  must allege that the employer's failure to engage  in an interactive process resulted in a failure  to identify an appropriate accommodation for the  qualified individual.5 In this case, the City  and Rehling agreed on Rehling's relevant  limitations, and the City offered Rehling two  positions that accommodated his needs. Because  Rehling does not contest the suitability of the  alternative positions offered to him, but rather  only alleges that those accommodations were  unreasonable by virtue of the City's failure to  engage in a proper interactive exchange, the  district court correctly determined that Rehling  did not contest the reasonableness of the  accommodations made. Accordingly, the district  court did not err in granting partial summary  judgment to the City.

B.

25
We now turn to the evidentiary issues raised by  the appellant. Rehling claims that the district  court made two significant errors during the  course of trial in its evidentiary rulings.  First, Rehling argues that despite the fact that  the trial was limited to the issue of disparate  treatment, the district court allowed the City to  introduce irrelevant evidence about the position  the City offered Rehling in the Alternative  Response Unit. Second, Rehling contends that the  district court erred in excluding evidence of the  substance of conversations between General  Counsel Zoufal and other members of the CPD based  on the attorney-client privilege. According to  Rehling, the introduction of evidence about the  position in the Alternative Response Unit, and  the district court's decision on the attorney-  client privilege issue, resulted in an unfair  trial.


26
1. The Admission of Evidence Regarding the  Alternative Response Unit


27
We review the rulings of the district court  regarding the admissibility of evidence for an  abuse of discretion. See Buckner v. Sam's Club,  Inc., 75 F.3d 290, 292 (7th Cir. 1996). "[T]he  relevant inquiry is not how the reviewing judges  would have ruled if they had been considering the  case in the first place, but rather whether any  reasonable person could agree with the district  court." Nachtsheim v. Beech Aircraft Corp., 847  F.2d 1261, 1266 (7th Cir. 1988) (quoting  Deitchman v. E.R. Squibb & Sons, Inc., 740 F.2d  556, 573 (7th Cir. 1984)). If we determine that  the district court has abused its discretion in  making an evidentiary ruling, we nonetheless  affirm the district court if the erroneous ruling  is determined to be harmless. See Holmes v.  Elgin, Joliet & E. Ry. Co., 18 F.3d 1393, 1397  (7th Cir. 1994).


28
The plaintiff contends that the district court  erred in admitting evidence regarding the  position offered to Rehling in the Alternative  Response Unit. At trial, the district court  allowed the City to present evidence about both  the value of the position at the Alternative  Response Unit, and the transportation issues  about which Rehling expressed concern. According  to Rehling, this was erroneous because the trial  had been explicitly limited to the issue of  disparate treatment, and the evidence about the  position in the Alternative Response Unit related  only to the issue of reasonable accommodation.  Rehling contends that the evidence admitted was  therefore irrelevant, and that it confused and  prejudiced the jury.


29
After a review of the record, we cannot  conclude that the district court abused its  discretion in admitting evidence as to the  position at the Alternative Response Unit. The  trial was limited to the issue of disparate  treatment, but that limitation did not mean that  no evidence of the alternative positions offered  to Rehling could be introduced. Rather, we look  only to whether the evidence offered by the City  was relevant to the issue of disparate treatment.  Fed.R.Evid. 402; United States v. Messino, 181  F.3d 826, 829-830 (7th Cir. 1999) (stating that  the federal rules establish a presumption that  relevant evidence is admissible).


30
Once a plaintiff in an ADA disparate treatment  case has established the proper connection  between his disability and an adverse job  action6 through indirect proof, the employer is  required to show a legitimate nondiscriminatory  reason for the job action. See Silk v. City of  Chicago, 194 F.3d 788, 799 (7th Cir. 1999)  (applying the McDonnell Douglas burden-shifting  test to disparate treatment claims under the  ADA); Sieberns, 125 F.3d at 1022 (same); DeLuca  v. Winer Indus., 53 F.3d 793 (7th Cir. 1995)  (same).7 In that regard, it is significant that  Rehling alleged that the City transferred him out  of District 16 and to the Alternative Response  Unit because of his disability and that this  discriminatory transfer stigmatized him. Given  that claim, the City was entitled to present  evidence relevant to the issue of the City's  motivations in offering Rehling a position in  that unit and to the stigmatizing effect of that  transfer.


31
Much of the testimony admitted about the  position in the Alternative Response Unit was  relevant to the City's motives in transferring  Rehling and the stigmatizing effect of that  transfer. Once Rehling claimed the City  transferred him because he was disabled, the City  was entitled to counter that assertion with  evidence of its personnel needs. In this case,  the City argued that it did not keep Rehling in  District 16 because there was no position  available there, and that it transferred Rehling  to the Alternative Response Unit because it  needed officers with Rehling's experience in that  position. This evidence was certainly relevant to  the issue of the City's motivations. Furthermore,  Rehling asserted that the transfer to the  Alternative Response Unit stigmatized him. To the  extent stigma was placed at issue, the City's  evidence as to the value of the position was  clearly relevant to determining the stigmatizing  effect of a transfer to that position. Because it  was relevant to the issue of the discriminatory  transfer, the district court did not err in  admitting evidence about the availability and  desirability of the alternative position offered  to Rehling.


32
We do agree with Rehling that the City's  evidence as to his ability to get to and from  work at the Alternative Response Unit was not  relevant to the inquiry into the City's allegedly  discriminatory motives in transferring Rehling.  However, Rehling himself testified that he could  not take a position with the CPD outside of  District 16 because he had no means of getting to  and from work. In light of this testimony, it  would have been unfair to deprive the City of the  ability to demonstrate that it had worked with  Rehling to find a solution to his transportation  problems. By testifying about his inability to  get to work, Rehling opened the door to evidence  about the City's efforts to find him a means of  transportation to and from the Alternative  Response Unit. See United States v. Moore, 115  F.3d 1348, 1358 (7th Cir. 1997) (stating that  when a party opens the door to evidence that  would be otherwise inadmissible, that party  cannot complain on appeal about the admission of  that evidence); United States v. Wynn, 845 F.2d  1439, 1443 (7th Cir. 1988). Accordingly, the  district court did not abuse its discretion in  allowing the admission of this evidence.

2.  The Attorney-Client Privilege

33
Rehling finally contends that the district court  erred in determining that the substance of  conversations between General Counsel Zoufal and  members of the CPD was protected by the attorney-  client privilege. According to Rehling, Zoufal's  statements about Rehling's injury, and about the  desirability of employing a disabled officer at  District 16, are not protected by the attorney-  client privilege because the statements were made  by Zoufal in his business capacity as a  decisionmaker on personnel matters. The City  responds, and the district court found, that  these statements were made in Zoufal's capacity  as an attorney for the CPD, and that such  communications are privileged.


34
The attorney-client privilege protects  confidential communications made by a client to  his lawyer "'[w]here legal advice of any kind is  sought . . . from a professional legal advisor in  his capacity as such.'" United States v. Evans,  113 F.3d 1457, 1461 (7th Cir. 1997) (quoting 8  John Henry Wigmore, Evidence in Trials at Common  Law sec. 2292 (John T. McNaughton rev. 1961));  Radiant Burners, Inc. v. American Gas Ass'n, 320  F.2d 314, 319 (7th Cir. 1963). Although the  attorney-client privilege generally attaches only  to statements made by the client, statements made  by the lawyer to the client will be protected in  circumstances where those communications rest on  confidential information obtained from the  client, see Tax Analysts v. IRS, 117 F.3d 607,  618 (D.C. Cir. 1997), or where those  communications would reveal the substance of a  confidential communication by the client, see In  re Witnesses Before the Special March 1980 Grand  Jury, 729 F.2d 489, 493 (7th Cir. 1984). Because  the attorney-client privilege is limited to  situations in which the attorney is acting as a  legal advisor, see In re Feldberg, 862 F.2d 622,  626 (7th Cir. 1988); Evans, 113 F.3d at 1463, we  need to determine whether Zoufal was acting in  his business or legal capacity when advising  ranking members of the CPD about Rehling's  transfer.


35
Rehling argues that the district court  incorrectly determined that the attorney-client  privilege applied to Zoufal's statements because  the City failed to show that a full examination  of Zoufal would reveal client confidences.  However, the district court determined that  Zoufal gave ranking members of the CPD advice  about Rehling's placement and the City's  obligations under the ADA, and that an  examination of Rehling in regard to those issues  would reveal that information. This is exactly  the kind of legal advice the privilege was meant  to protect. Although we regard the applicability  of the attorney-client privilege in the context  of this case to be a close question, our review  of the district court's privilege determination  is conducted under the highly deferential clearly  erroneous standard. See United States v.  Frederick, 182 F.3d 496, 499-500 (7th Cir. 1999)  (holding that a district court's determination as  to the applicability of a privilege is reviewed  for clear error); In re Teranis, 128 F.3d 469,  471 (7th Cir. 1997); Williams v. Commissioner, 1  F.3d 502, 505 (7th Cir. 1993).


36
In this case, Zoufal did testify that he  rendered legal advice in his capacity as General  Counsel, and other members of the CPD identified  themselves as the actual decisionmakers behind  Rehling's transfer. More significantly, the  evidence showed that Zoufal was not empowered to  make a business decision transferring Rehling out  of District 16. In light of this evidence, we  cannot conclude that the district court clearly  erred in holding that the attorney-client  privilege barred the introduction of evidence of  the substance of Zoufal's conversations with  ranking members of the CPD.

III.  Conclusion

37
We hold that the district court properly  granted partial summary judgment to the City on  Rehling's reasonable accommodation claim, and  that the district court did not commit an abuse  of discretion by admitting evidence of the  position in the Alternative Response Unit at the  trial on disparate treatment. In addition, we  hold that the district court's exclusion of  evidence based on the attorney-client privilege  was not clearly erroneous. Accordingly, we AFFIRM  the decision of the district court.



Notes:


1
 As a technical matter, the district court did not  grant the City partial summary judgment, but  rather found that Rehling had effectively  abandoned his reasonable accommodation claim.  However, both parties recognize that this finding  is the functional equivalent of a grant of  partial summary judgment. We will therefore  continue to refer to the district court's action  as a grant of partial summary judgment, and we  review the claim accordingly.


2
 Under the ADA, an employer cannot "discriminate  against a qualified individual with a disability"  by "not making reasonable accommodations to the  known physical or mental limitations of . . . an  applicant or employee, unless [the employer] can  demonstrate that the accommodation would impose  an undue hardship on the operation of the  business." 42 U.S.C. sec. 12112(a)(5)(A).


3
 When "'a qualified individual with a disability'  [is treated] differently because of the  disability," a disparate treatment claim exists  under the ADA. Sieberns v. Wal-Mart Stores, Inc.,  125 F.3d 1019, 1021-22 (7th Cir. 1997).


4
 The City does not dispute that Rehling was "a  qualified individual with a disability" within  the meaning of the ADA. See 42 U.S.C. sec.  12112(a).


5
 Rehling did testify below that he was concerned  about his ability to obtain transportation to and  from a position at the Alternative Response Unit.  Rehling does not raise this point on appeal,  however, perhaps because the evidence adduced at  trial clearly showed that the City worked closely  with Rehling to try to resolve these  transportation issues. The City not only  suggested public transportation and participation  in the Chicago Transit Authority's disability  ridership van program, but even arranged a ride  to work for Rehling with another officer. Because  Rehling does not contest the reasonableness of  the accommodation offered him on the ground that  he could not get to work, we do not consider  whether such an assertion would create a jury  question as to whether the City's alleged failure  to engage in a proper interactive process led to  its failure to offer Rehling a reasonable  accommodation.


6
 Under the ADA, adverse employment actions may  include "job application procedures, the hiring,  advancement, or discharge of employees, employee  compensation, job training, and other terms,  conditions, and privileges of employment." 42  U.S.C. sec. 12112(a). While this Circuit has  interpreted the concept of an adverse employment  action broadly, see Silk v. City of Chicago, 194  F.3d 788, 800 (7th Cir. 1999), it is not clear  that Rehling's transfer constitutes the kind of  adversity that would qualify. However, because  the parties do not address this issue at any  length, and because we affirm the decision of the  district court on other grounds, we need not  consider whether Rehling has demonstrated the  kind of adverse employment action necessary to  maintain a disparate treatment claim under the  ADA.


7
 Under the burden-shifting test enunciated in  McDonnell Douglas Corp. v. Green, 411 U.S. 792  (1973), a plaintiff attempting to prove  discrimination through indirect proof must  establish "(1) that she is disabled within the  meaning of the ADA, (2) that her work performance  met her employer's legitimate expectations, (3)  that she was discharged [or was subjected to some  other adverse employment action], and (4) that  the circumstances surrounding [the adverse  action] indicate that it is more likely than not  that her disability was the reason for these  adverse actions." Weigel v. Target Stores, 122  F.3d 461, 465 (7th Cir. 1997) (quoting Leffell v.  Valley Fin. Serv., 113 F.3d 787, 794 (7th Cir.  1997)).


