In the
United States Court of Appeals
For the Seventh Circuit

No. 99-4208

Jack Jay,

Plaintiff-Appellant,

v.

Intermet Wagner Incorporated, also
known as Wagner Castings Company,

Defendant-Appellee.

Appeal from the United States District Court
for the Central District of Illinois.
No. 98 C 2214--Michael P. McCuskey, Judge.

Argued September 28, 2000--Decided December 4, 2000



  Before Flaum, Chief Judge, and Bauer and
Harlington Wood, Jr., Circuit Judges.

  Bauer, Circuit Judge. Jack Jay worked
for Intermet Wagner, Inc. as a
millwright, repairing and maintaining
equipment, most of which was accessible
only by climbing ladders and stairs. In
1992, Jay tore his Achilles tendon, an
injury that, according to his treating
physicians, permanently precluded him
from jobs involving climbing. When Jay
requested to be reinstated as a
millwright, Wagner refused. Rather,
Wagner placed Jay on extended medical
layoff until an appropriate position
became available 20 months later. Jay
sued Wagner under the Americans with
Disabilities Act ("ADA"). The district
court granted summary judgment to Wagner
because it found that Wagner reasonably
accommodated Jay. We affirm.

I.   Background

  As a millwright for Intermet Wagner,
Inc. ("Wagner"), Jack Jay installed new
equipment and maintained and repaired
existing machines. Much of Wagner’s
equipment is located high in the plant,
requiring millwrights to climb stairs or
ladders to reach it.

  In 1992, Jay tore the Achilles tendon in
his left ankle. Jay took sick leave and
underwent surgery performed by Dr.
Graham. When Jay returned to work after
approximately six months of
convalescence, Wagner assigned him to
work temporarily as an inspector, a job
that did not require climbing.

  Jay reinjured his left Achilles tendon
in May of 1993, and again took sick leave
so that he could pursue therapy. While
Dr. Graham remained Jay’s primary
treating physician, Jay also began to see
Dr. Schrodt in connection with a workers’
compensation claim. Jay returned to work,
again in the temporary inspector
position. While Jay’s ankle gradually
improved, both Dr. Graham and Dr. Schrodt
believed that it was permanently damaged.
Dr. Graham imposed permanent work
restrictions, which prohibited Jay from
climbing and working in high areas.

  As specified by the collective
bargaining agreement, Jay’s time in the
temporary inspector position ran out in
October of 1994. Wagner decided that
Jay’s work restrictions prevented his
reinstatement as a millwright, and Wagner
did not have an open position for which
Jay qualified. Instead, Wagner placed Jay
on medical layoff. Wagner considered Jay
weekly for reinstatement to a position
that did not require climbing and for
which his seniority qualified him.

  In the summer of 1995, Jay believed his
ankle was healed enough so that he could
return to work as a millwright. He
approached Dr. Graham, Dr. Schrodt, and a
new doctor, Dr. Becan, asking them to
clear his work restrictions. All three
doctors refused.

  In late 1996, Jay again endeavored to
get his work restrictions rescinded.
Believing that neither Dr. Graham nor Dr.
Schrodt would change his assessment, Jay
sought out Dr. Elbaz, who cleared Jay to
work in all capacities. Jay sent his
release to Wagner and requested
reinstatement to his job as a millwright.
To Jay’s disappointment, Wagner refused
to accept Dr. Elbaz’s medical release
because Elbaz was not one of Jay’s
original treating physicians. Jay then
asked Dr. Schrodt to lift his work
restrictions, but after examining Jay’s
ankle, Dr. Schrodt refused. In response
to Jay’s request for reinstatement, the
Human Resources Director at Wagner asked
the General Foreman of Ductile
Maintenance if it was possible to employ
Jay as a millwright while accommodating
his work restrictions. The foreman
answered in the negative because he
believed that climbing was an integral
part of a millwright’s job at Wagner.

  Undeterred, Jay again requested to be
returned to his millwright position in
June of 1997. After examining Jay, both
Dr. Graham and Dr. Schrodt persisted in
their opinions that Jay should not climb
stairs or ladders. In October of 1997,
Jay renewed his request for Wagner to
reinstate him as a millwright, and to
accommodate his ankle injury by finding
work he could do at ground level. Wagner,
still believing that climbing was an
integral part a millwright’s job, decided
that such an accommodation was
impossible. Jay asserts, however, that
Wagner employed two millwrights who
worked predominately at ground level.
Wagner asked Jay to suggest other ways to
accommodate his work restriction, but Jay
did not respond with any new ideas.

 Wagner recalled Jay to work as a box
builder in October of 1998. As a box
builder, Jay worked at ground level. In
March of 1999, Jay transferred to the
position of tractor operator, a position
he still held at the time of litigation.
In this position, Jay did not climb steps
or ladders, but did climb into the
tractor.

  Jay sued Wagner under the ADA contending
that he was a qualified individual with a
perceived disability and that Wagner
failed to provide reasonable
accommodations. The district court
granted summary judgment against Jay,
reasoning that Wagner satisfied its
obligations under the ADA.

II.    Discussion

A.    Standard of Review

  Jay argues that the district court
wrongfully granted summary judgment in
favor of Wagner, and asks us to reverse.
We review de novo the district court’s
grant of summary judgment, "drawing our
own conclusions of law and fact from the
record before us." Feldman v. American
Mem’l Life Ins. Co., 196 F.3d 783, 789
(7th Cir. 1999) (citation omitted). We
construe all facts in a light most
favorable to Jay, the non-moving party.
Summary judgment is proper when the
evidence shows "that there is no genuine
issue as to any material fact and that
the moving party is entitled to a
judgment as a matter of law." Fed. R. Civ.
P. 56(c); see Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986).

B.   ADA Claim

  To succeed in his appeal, Jay must
demonstrate an issue of material fact or
law regarding whether he is a disabled
individual, whether he is capable of
performing the essential functions of a
millwright, and whether Wagner reasonably
accommodated him. See 42 U.S.C. sec.
12101 et seq. Jay contends that he
qualifies for ADA protection because
Wagner regards him as substantially
limited in the major life activity of
climbing, and because he is able to
perform all the essential functions of
the millwright position. Although this
Circuit has not yet decided whether
climbing qualifies as a major life
activity, we decline to address the issue
here. For purposes of this decision, we
assume that Jay has proven the first two
elements of his claim. Jay cannot
prevail, however, because Wagner
reasonably accommodated his disability.

  Jay argues that Wagner discriminated
against him on the basis of his perceived
disability by: (1) refusing to
restructure his millwright job so that he
could work exclusively at ground level;
and (2) taking 20 months to place Jay in
a job which complied with his work
restrictions and for which his seniority
qualified him. The ADA requires employers
to make "reasonable accommodations to the
known physical or mental limitations of
an otherwise qualified individual with a
disability" unless the employer can show
that the accommodation would cause an
undue hardship for the employer. 42
U.S.C. sec.sec. 12112(a), (b)(5)(A).

  Jay first argues that Wagner failed to
reasonably accommodate him because it
refused to restructure his millwright job
so that he could work exclusively at
ground level. Assuming Jay was protected
by the ADA, Wagner was obligated to
provide him with a reasonable
accommodation. It is the employer’s
prerogative to choose a reasonable
accommodation; an employer is not
required to provide the particular
accommodation that an employee requests.
See Rehling v. City of Chicago, 207 F.3d
1009, 1014 (7th Cir. 2000) ("It is well
established that an employer is obligated
to provide a qualified individual with a
reasonable accommodation, not the
accommodation he would prefer.");
McCreary v. Libbey-Owens-Ford Co., 132
F.3d 1159, 1165 (7th Cir. 1997); Weiler
v. Household Fin. Corp., 101 F.3d 519,
526 (7th Cir. 1996); Gile v. United
Airlines, Inc., 95 F.3d 492, 499 (7th
Cir. 1996); Schmidt v. Methodist Hosp. of
Indiana, Inc., 89 F.3d 342, 344 (7th Cir.
1996). Wagner declined to restructure
Jay’s job because, according to its
foreman, there was not enough millwright
work for Jay to do at ground level. Jay
asserts that Wagner employed two
millwrights who worked mainly at ground
level. Even if Jay is correct, Wagner is
not required to shuffle job responsibili
ties amongst employees to create a
position to accommodate Jay’s disability.
See Gile, 95 F.3d at 499 ("[A]n employer
is not required to ’bump’ other employees
to create a vacancy so as to be able to
reassign the disabled employee. Nor is an
employer obligated to create a ’new’
position for the disabled employee.")
(citations omitted). Wagner acted within
its rights when it decided to reassign
Jay to a new position rather than
restructure a millwright position for
him.

  Jay next contends that the accommodation
Wagner selected, reassigning Jay to a new
job, was not reasonable due to the 20
month delay before such a position became
available. The ADA’s definition of
reasonable accommodation includes
"reassignment to a vacant position." 42
U.S.C. sec. 12111(9)(B); see Gile, 95
F.3d at 499. The reasonableness of
Wagner’s accommodation therefore hinges
on the timeliness of the reassignment.
While unreasonable delay in providing an
accommodation can provide evidence of
discrimination, we believe that Wagner
acted reasonably and in good faith. While
Jay was awaiting reinstatement, Wagner
considered him for reassignment to an
open position on a weekly basis. Further,
Wagner kept Jay on medical layoff until
he was reinstated. It simply took a long
time for a position to become available
which met Jay’s work restrictions and for
which Jay’s seniority qualified him. As
soon as an appropriate position became
available, Wagner offered it to Jay. We
believe that Wagner’s solution
constituted a reasonable accommodation.


III.   Conclusion

  We AFFIRM the judgment of the district
court.
