In the
United States Court of Appeals
For the Seventh Circuit

No. 00-2813

Rudolph Winfrey,

Plaintiff-Appellant,

v.

City of Chicago,

Defendant-Appellee.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 96-C-1208--Nan R. Nolan, Magistrate Judge.

Argued April 2, 2001--Decided July 26, 2001


  Before Bauer, Cudahy, and Easterbrook,
Circuit Judges.

  Cudahy, Circuit Judge. Rudolph Winfrey
appeals a grant of summary judgment to
his employer, the City of Chicago, on his
claim under the Americans with
Disabilities Act, 42 U.S.C. sec. 12101 et
seq. (ADA), and section 504 of the
Rehabilitation Act of 1973, 29 U.S.C.
sec. 794, claiming that the City failed
to accommodate him.

I.

  Winfrey has worked as a laborer for the
Chicago Department of Streets and
Sanitation since 1971. While retaining
the position of laborer, Winfrey was
assigned to work as a ward clerk for
three months in 1971. In 1977,
Winfreybegan to lose his eyesight, and by
1986 he was legally blind. The City was
aware of his impairment in 1977. From
1987 through 1991, Winfrey worked in
special events. In 1991, while he was
employed there, Winfrey was required to
work on a ledge; he fell 25 feet and
broke one of his legs.

  Because of this injury, Winfrey was on
disability leave from June through
December 1991. He returned to work in
January 1992. At that time, he was
assigned to work on a garbage truck.
Because he could not safely perform that
job, Winfrey requested, and was granted,
vacation leave while the City purportedly
sought a position in which Winfrey could
safely perform. Presumably to facilitate
that process, Winfrey submitted a letter
and resume to the assistant commissioner
of the Department of Streets and
Sanitation, but the City did not return
him to work in 1992. Winfrey then filed a
charge with the Illinois Department of
Human Rights, alleging that the City
failed to accommodate his visual
impairment by declining to return him to
work. While this charge was pending,
Winfrey required additional surgery on
his leg, and began receiving worker’s
compensation. In early 1994, the City
requested that Winfrey report for a
physical to ascertain his ability to
return to active duty. The City’s doctors
determined that Winfrey had recovered
from the leg injury, and they issued him
a release to return to work in March
1994. The City did not return him to
work, however, because Winfrey had not
received a release related to his visual
impairment. Nor was he returned to work
in 1994 or 1995. In 1994, Winfrey filed a
charge with the Equal Employment
Opportunity Commission (EEOC) alleging
that the City discriminated against him
on account of his disability by failing
to return him to work. The EEOC issued
him a right to sue letter in January
1996.

  In September 1995, the Department asked
Winfrey to fill out a request for a
reasonable accommodation form; Winfrey
complied with this request. The City then
contacted the Mayor’s Office for People
with Disabilities (MOPD), which began to
explore ways to accommodate Winfrey. In
September 1996, the MOPD developed a
revised job description of the ward clerk
position for Winfrey. He began work at
this newly fashioned position in
December. His supervisor, Francisco
Carranza, did not know that Winfrey was
blind until he showed up for work.
Carranza testified that he did not know
how to accommodate Winfrey, so he allowed
him to answer phones and take messages,
but otherwise gave him nothing to do from
December until February. Apparently,
Carranza never received the job
description prepared by the MOPD.

  In February 1997, the Illinois
Department of Rehabilitative Services
(IDORS) had consultants from the Chicago
Lighthouse for People Who Are Blind or
Visually Impaired (the Lighthouse) go to
Winfrey’s worksite to develop adjusted
ward clerk duties for him. Prior to the
meeting, Carranza prepared a list of four
"partial essential" ward clerk duties he
thought Winfrey could perform: 1)
maintain refuse collection activity
records; 2) contact the wards to issue
additional instructions or information;
3) answer telephone complaints and log
service requests; 4) contact drivers and
log their arrival and departure on
assigned routes. The Lighthouse prepared
a recommendation for Winfrey that
concluded that he was capable of
performing these ward clerk functions.
However, there were other ward
clerkfunctions that Winfrey did not
perform. Carranza testified that he did
not assign those duties to Winfrey
because Winfrey’s impaired vision
prevented him from driving or reading,
and because other employees were already
taking care of these functions. Winfrey,
upon learning of these duties, requested
that the Lighthouse consultants return
for another assessment. It did, but its
second and third sets of recommendations
merely elaborated on the adaptive
technology--such as a computer--that
could help Winfrey perform his duties as
a ward clerk; they made no mention of
additional duties he might be able to
perform. While the City has provided
Winfrey with a computer, it has not
trained Winfrey to perform all the duties
required of a ward clerk. Thus, he is not
considered a full ward clerk, nor is he
remunerated as one.

   Winfrey apparently desires to be
assigned the position of laborer, ward
clerk or dispatcher--all of which would
entail higher pay than he currently
receives in his scaled-down job. Winfrey
presented evidence that two laborers have
worked as ward clerks for at least two
years but perform no other laborer
duties. Winfrey filed a lawsuit claiming
that the City violated the ADA and the
Rehabilitation Act by failing to
reasonably accommodate his blindness when
it did not return him to work from March
1994 to December 1996. He further alleged
that the City continues to fail to accom
modate him since his return to work in
December 1996. Both parties moved for
summary judgment. Winfrey also sought to
amend his complaint and the City filed a
motion to strike certain paragraphs of
Winfrey’s statement of facts. The
district court denied both of Winfrey’s
motions, granted the City’s motion for
summary judgment and partially granted
the City’s motion to strike. The district
court found that Winfrey was not a
qualified individual under the ADA and
the Rehabilitation Act. On another of
Winfrey’s claims, the court concluded
that, although Winfrey might be able to
perform the essential functions of a
dispatcher--and thus be qualified for
that particular job--the City was not
required to give him priority over
members of the Teamsters Union with
seniority, with which it has a collective
bargaining agreement.

  We review the district court’s grant of
summary judgment de novo, drawing all
inferences in the light most favorable to
Winfrey. See Mills v. Health Care Service
Corp., 171 F.3d 450, 454 (7th Cir. 1999).
Summary judgment is appropriate only if
the record reflects no genuine issue of
material fact, and the moving party is
entitled to judgment as a matter of law.
See Anderson v. Liberty Lobby, 477 U.S.
242, 255 (1986).

II.

  To establish a claim for failure to
accommodate under the ADA or the
Rehabilitation Act, the plaintiff must
demonstrate that he or she is a disabled
person as defined by the statute, that
the employer knew about the disability
and that he or she is otherwise qualified
to perform the essential functions of the
job sought, with or without reasonable
accommodation. See Dalton v. Subaru-Isuzu
Auto., Inc., 141 F.3d 667, 674 (7th Cir.
1998). Winfrey bears the burden of proof
to demonstrate these prerequisites. See
Bultemeyer v. Fort Wayne Cmty. Schools,
100 F.3d 1281, 1284 (7th Cir. 1996). The
City does not dispute that Winfrey was
disabled or that the City knew about the
disability. But it argues, and the
district court held, that Winfrey has
nevertheless failed to meet his burden
because he has failed to show that he is
a "qualified individual with a
disability" within the meaning of the
ADA. The ADA defines a "qualified
individual with a disability" as "an
individual with a disability who, with or
without reasonable accommodation,
canperform the essential functions of the
employment position that such individual
holds or desires." 42 U.S.C. sec.
12111(8). Thus, to prove that he is a
qualified individual, Winfrey must show
that he can perform the essential
functions of the positions he seeks. See
Bultemeyer, 100 F.3d at 1284.

  The district court concluded that
Winfrey failed to show that he could
perform the essential functions of a ward
clerk. First, the court had to determine
what those duties are. Evidence pointing
to essential functions includes, but is
not limited to: 1) the employer’s
judgment as to what functions are
essential; 2) written job descriptions
prepared for advertising for, or
interviewing, job applicants; 3) the
amount of time spent on the job
performing a particular function; 4) the
consequences of not requiring an employee
to perform a function; 5) the terms of a
collective bargaining agreement; and 6)
work experience of past and present
employees in the position. 29 C.F.R. sec.
1630.2(n)(3) (2000). The district court
concluded (and Winfrey does not appear to
question) that the following are the full
(but not necessarily essential) duties of
ward clerks:

distribute tickets (administrative
adjudicative and parking enforcement),
sign-in the refuse collection
coordinators, collect tickets, contact
the wards for Sunday baskets, receive
drivers for Sunday baskets, pick-up mail,
handle some payroll functions, answer the
radio and telephones, order supplies by
preparing requisition forms, pick-up
supplies, monitor use of supplies,
facilities management, complete order for
repairs, occasionally hand out forms,
handle attendance, and handle special
details for overtime, i.e., Sunday
baskets.

Mem. Op. & Order at 16. Although the
parties do not appear to dispute that
these are all ward clerk duties, they do
disagree as to which of these duties are
essential. The City argues that the
official job description on file with the
City lists the essential duties; Winfrey
contends that the fact that Carranza’s
deposition testimony conflicted with this
official description creates a genuine
issue for trial. This official
description contains under the heading
"essential duties" the following:

Maintains records . . . prepares various
reports including manpower distribution
and absentee reports, daily truck and
hired equipment allocations and street
cleaning activity reports; contacts
division office on a daily basis to
report crew shortages, route completion
and tonnage collected; maintains color
coded maps to track daily work progress
of crews throughout the ward; reviews
daily timesheets and maintains
timekeeping records for staff assigned to
the ward; maintains records and prepares
overtime cost reports; prepares various
personnel forms including accident
reports, payroll action forms and other
employee personnel forms; receives
requests from ward residents for
sanitation services and forwards to Ward
Superintendent; operates a computer
terminal to input and update complaints
and service requests received from ward
residents; maintains a log of complaints
or service requests . . . provides area
police district with information of ward
areas scheduled for street cleaning;
maintains inventory records of tools and
materials issued to the ward; prepares
requisitions to order tools, materials
and office supplies as directed.

Plaintiff’s Exhibit Z. The district court
concluded that Winfrey failed to
undermine the City’s (Carranza’s)
determination that Winfrey could not
perform the following essential duties:

distribute tickets, sign-in the refuse
collection coordinators, collect tickets,
contact the wards for Sunday baskets,
receive drivers for Sunday baskets, pick
up mail, process parking tickets, payroll
functions, order supplies, facilities
management, and keep attendance records.

Mem. Op. at 17 (citing Carranza
deposition). This list of duties appears,
at first glance, largely dissimilar from
the duties outlined in the written job
description provided by the City. But the
district court was apparently satisfied
that Carranza’s testimony coincided with
the essential duties identified by the
City’s job description: "Carranza’s
inability at his deposition to recall all
of the ward clerk duties performed . . .
does not create a genuine issue
concerning whether the City’s official
job description contains the essential
functions of the position." Mem. Op. at
17. We are also satisfied; while the
exact terminology may differ, the
substance of the functions is the same.

  Winfrey also argues that the
accommodation the City did provide--the
adjusted, limited ward clerk position--
demonstrates that those four duties to
which he was assigned must be the only
essential duties of the full ward clerk
position that he seeks. But it has been
clear from the onset of this case that
the City created a modified ward clerk
position for Winfrey, consisting of
duties that Carranza believed he could
perform. This was an accommodation that
the City was not obliged to perform, and
the fact that the City was willing to
work with Winfrey will not count as
evidence that the position it created is
in fact the full ward clerk position. In
a related context, we have observed that
"if 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 rea
sonableness of so far-reaching an accommodation.’"
Amadio v. Ford Motor Co., 238 F.3d 919,
929 (7th Cir. 2001) (quoting Vande Zande
v. Wisconsin Dep’t of Admin., 44 F.3d
538, 545 (7th Cir. 1995)). As the City
argues, the creation of a modified
position for Winfrey does not demonstrate
that the four duties he performed are the
only essential duties of the unmodified
job that he now seeks.

  Winfrey next contends that there is a
genuine issue whether the functions
alleged by the City to be required, but
not assigned to Winfrey, are in fact
essential. Winfrey tries to buttress his
position by arguing that the other ward
clerks do not perform all of the
functions claimed to be essential.
However, showing that not all employees
perform at a particular time all the
essential job functions does not make
those functions non-essential. See
Malabarba v. Chicago Tribune Co., 149
F.3d 690, 700 (7th Cir. 1998). We have
observed that "if an employer has a
legitimate reason for specifying multiple
duties for a particular job
classification, duties the occupant of
the position is expected to rotate
through, a disabled employee will not be
qualified for the position unless he can
perform enough of these duties to enable
a judgment that he can perform its
essential duties." Miller v. Illinois
Dep’t of Corr., 107 F.3d 483, 485 (7th
Cir. 1997). Here, Winfrey has failed to
controvert the City’s claim that ward
clerks must be capable of performing all
the essential duties of their position,
and that they may be called upon to
perform any of them at any time.
  Winfrey’s evidence that he could perform
any function beyond those assigned to him
by Carranza is minimal at best. First, he
contends that the Lighthouse determined
that he could perform the essential
functions of ward clerk with an
appropriate accommodation. This is based
on the Lighthouse recommendations. First,
the Lighthouse stated that "[t]he
following are recommendations for Mr.
Winfrey to perform his essential job
functions . . . . I would recommend that
a computer be placed at his desk . . . .
[T]he computer would need word processing
functions to allow him to perform his job
. . . ." Exhibit W (Lighthouse
Accommodation Recommendation, Mar. 6,
1998). The recommendation after the
Lighthouse’s second visit contained the
following statement: "At this and earlier
meetings, it had been determined that a
computer with proper adaptive technology
would enable Mr. Winfrey to perform his
duties as a Ward Clerk." Exhibit X
(Lighthouse Accommodation Recommendation,
Mar. 26, 1998). The district court
concluded that these references to the
functions of ward clerk involved only the
four duties presented by Carranza. We
agree. There is no evidence that the
Lighthouse was even aware of the
allegedly essential functions of the ward
clerk position. Further, the nature of
its recommendations indicates that the
Lighthouse was referring to the four
functions prescribed for Winfrey by
Carranza (contacting drivers and the
like) and not the functions for which
Winfrey is unqualified (picking up mail,
distributing tickets, and the like).

  Winfrey’s additional "evidence" is that
"one only needs to look at the functions
that have not been shown to Winfrey and
be persuaded that if shown the functions
accompanied with the accommodation
suggested, that is, a computer with
speech Winfrey could perform these
functions too." Appellant’s Brief at 25.
He contends that the forms ward clerks
complete could be entered onto his
computer, which would allow Winfrey to
tab to the blanks that needed to be
completed. Winfrey also contends that his
inability to drive would not prevent him
from picking up the mail and supplies,
because two clerks generally perform that
function. He argues that he already
orders supplies. And he suggests that he
has the ability to review payroll, though
he does not explain how except by stating
that he could be trained to do it. This
is simply not enough to show that Winfrey
can perform the duties of a ward clerk.
It is undisputed that he cannot perform
clerical functions that require filling
in or reviewing forms that are not
computerized. If there is an
accommodation that would allow Winfrey to
perform these functions, Winfrey has not
identified it. He has presented no
evidence that he can manage payroll
functions, collect tickets and the like,
with or without the aid of a computer.
And he has presented no evidence that
functions such as signing in refuse
collection coordinators can be
computerized. We do not foreclose the
possibility that there is some
accommodation that would allow Winfrey to
perform additional ward clerk duties. But
one thing is clear: he has presented no
evidence that he can perform duties
beyond the four identified by Carranza.
Winfrey has simply failed to meet his
burden.

III.

  In addition to arguing his
qualifications for the ward clerk
position, Winfrey makes an incidental
effort to appeal from the district
court’s finding that he did not qualify
for the position of laborer. As far as we
can tell, this title is available to two
other ward clerks who are able to perform
all ward clerk duties, in addition to
being available to be called to the field
(which might entail working on garbage
trucks and/or working at heights) at any
time. Winfrey argues that working on
garbage trucks and at heights are not
essential duties of the laborer position.
The district court found that a
reasonable jury could come to that
conclusion. However, while the district
court left open the possibility that one
need not perform those duties to be a
laborer, Winfrey still has not found a
laborer position whose duties he can
perform. The only possible laborer
position he has identified is the one
occupied by the two persons who perform
ward clerk duties. The court therefore
was correct to require that Winfrey
demonstrate an ability to perform all the
ward clerk duties in order to qualify as
a laborer. Consequently, Winfrey has not
identified or described a laborer
position for which he is qualified; he
refers only to two "laborers" who
currently serve as ward clerks and who
can perform all essential ward clerk
functions. Thus, the district court did
not err in finding that Winfrey failed to
show that he is a qualified individual
for the laborer position.

IV.

  Winfrey also indicated a desire to
occupy the position of dispatcher, and--
because he was never given a chance to
explore this position--he claims the City
failed to engage in good faith in an
interactive process designed to
accommodate him. To make such a claim,
Winfrey must identify a vacant dispatcher
position and prove he is qualified for
it. See Ozlowski v. Henderson, 237 F.3d
837, 840 (7th Cir. 2001) ("If there were
[a vacant] position, only then do we
consider whether the failure to provide
that accommodation was due to a breakdown
in the interactive process.") (citing
Baert v. Euclid Beverage, Ltd., 149 F.3d
626, 632 (7th Cir. 1998)); McCreary v.
Libbey-Owens-Ford Co., 132 F.3d 1159,
1165 (7th Cir. 1997); Gile v. United
Airlines, Inc., 95 F.3d 492, 498 (7th
Cir. 1996). A position is not considered
vacant if the employer has a legitimate
reason, unrelated to the employee’s
disability, for reserving the position
for others. See Ozlowski, 237 F.3d at
841-42. The duty to reassign does not
require an employer to "abandon its
legitimate, nondiscriminatory company
policies" for this purpose. See Dalton,
141 F.3d at 678.

  The district court concluded that
Winfrey made a sufficient showing that he
could perform the essential duties of the
dispatcher position. But it found that
the City was not required, under the ADA,
to assign him to that job because "[a]n
employer is not required to violate the
provisions of a collective bargaining
agreement to reassign a disabled employee
pursuant to the ADA." Cochrum v. Old Ben
Coal Co., 102 F.3d 908, 912-13 (7th Cir.
1996). It is undisputed that the
dispatcher position is covered by the
City’s collective bargaining agreement
with the Teamsters Union. Thus, only
those employees represented by that union
could bid for the job. Winfrey could
therefore bid for the position only if
the union agreed not to contest his
eligibility. The district court concluded
that there was no evidence the union
would consent to accepting Winfrey.
Winfrey argues that he had presented
persuasive evidence on this point: he
himself occupied the position from 1987
to 1991. However, he has offered nothing
to show that this fact demonstrates that
a position is currently available.
Complying with the collective bargaining
agreement is a legitimate, nondiscrimina
tory policy, and the City was not
required to abandon it in order to
accommodate Winfrey’s disability.

V.

  The City moved to strike several
portions of Winfrey’s statement of facts,
and the district court granted the City’s
motion as to two of these paragraphs.
Winfrey appeals from the striking of
paragraph 84. We review the grant of
amotion to strike for abuse of
discretion. See Maldonado v. U.S. Bank,
186 F.3d 759, 768 (7th Cir. 1999).
Paragraph 84 reads "The recommendations
[by the Lighthouse consultants], if
implemented would allow plaintiff to
perform the duties of a ward clerk that
he has not been shown." This statement
essentially implies that the Lighthouse
concluded that Winfrey could perform all
the essential functions of the ward clerk
position--not just the functions that
Carranza had outlined for Winfrey. The
City argued below that this assertion was
speculative, and the district court
agreed. The court noted that the
Lighthouse consultants, when making that
recommendation, did not know the full
extent of the duties of the ward clerk
position. They were only aware of the
four duties, and therefore their
conclusion could not have been referring
to anything more than those duties. For
the reasons outlined in Part II of this
opinion, we agree. The district court did
not abuse its discretion.

VI.

  For the foregoing reasons, we AFFIRM.
