                                In the

United States Court of Appeals
                  For the Seventh Circuit

No. 08-2052

G AIL K ING,
                                                  Plaintiff-Appellant,
                                    v.

C ITY OF M ADISON,
                                                 Defendant-Appellee.


               Appeal from the United States District Court
                  for the Western District of Wisconsin.
           No. 07-cv-295-bbc—Barbara B. Crabb, Chief Judge.


    S UBMITTED O CTOBER 8, 2008  —D ECIDED D ECEMBER 4, 2008




    Before R IPPLE, W OOD , and T INDER, Circuit Judges.
  W OOD , Circuit Judge. Gail King sued her former em-
ployer, the City of Madison, Wisconsin, claiming that the
City failed to accommodate her disability in violation of
the Americans with Disabilities Act, 42 U.S.C. § 12112, and



  After examining the briefs and the record, we have concluded
that oral argument is unnecessary. Thus, the appeal is submitted
on the briefs and the record. See F ED . R. A PP . P. 34(a)(2).
2                                               No. 08-2052

the Rehabilitation Act, 29 U.S.C. § 794. The district court
granted summary judgment to the City and later denied
King’s motion to alter or amend the judgment under F ED.
R. C IV. P. 59(e). We have reviewed the district court’s
decision de novo; finding no error, we affirm.
  King worked for the City as a transit operator (more
colloquially, a bus driver) until she became unable to work
from the combined effect of several factors: a high-risk
pregnancy, diabetes, and migraine headaches. She re-
quested, and the City approved, leave without pay begin-
ning on February 23, 2003. Initially King was placed on a
six-month disability leave of absence, and later she was
transferred to layoff status for a period of eighteen months.
During her disability layoff and following her pregnancy,
King was treated for chronic diabetes, headaches, and
intermittent, severe dizziness.
  King’s job was governed by a collective bargaining
agreement between the City and the International Brother-
hood of Teamsters Local 695. The collective bargaining
agreement stated that during disability layoff, King
retained the right “to displace the most junior employee in
any job classification equal to or lower in range than his or
her original position within the bargaining unit.” She also
had the right to fill any vacant position within her bargain-
ing unit for which she was qualified and retained the right
to compete for vacant City positions in other bargaining
units.
  After she had been on leave for approximately fourteen
months, King received her physician’s authorization to
return to work, but the doctor barred her from driving a
No. 08-2052                                                 3

bus. Based on King’s seniority and classification range, the
only position that she had a right to demand within her
bargaining unit was that of transit operator. Her medical
restrictions, however, ruled that job out. King wanted to
bump into an “operations tech II” position, but she was not
eligible for it because the job was in a higher classification
range than her transit operator position. She applied for
five vacant clerical positions in other bargaining units but
was not selected as the most qualified applicant.
  After two years of leave, the City terminated King’s
employment, as it was entitled to do under section 20.8 of
the collective bargaining agreement. She then sued the
City, asserting that it had unlawfully failed to accommo-
date her disability. The district court granted summary
judgment in favor of the City, holding that King was not a
qualified individual with a disability under the ADA
because her medical conditions did not substantially limit
her in the major life activity of working. The district court
further held that the City had provided her with a reason-
able accommodation, noting that the City had no obligation
to override the labor contract on King’s behalf.
  King asked the district court to reconsider its ruling
based on newly acquired evidence. The court construed her
request as a motion to amend or alter the judgment under
Rule 59(e). In that motion, King presented for the first time
evidence that the State of Wisconsin had found her dis-
abled for purposes of state law, and she argued that this
evidence contradicted the district court’s conclusion that
she was not disabled under the ADA. The district court
denied the motion, noting that King had not explained why
4                                                    No. 08-2052

she had not submitted the evidence sooner. The court also
observed that the state’s finding of disability had no
bearing on the question whether King was disabled for
purposes of the ADA.
  To survive the City’s motion for summary judgment on
her failure-to-accommodate claim, King needed to present
evidence that, if believed by a trier of fact, would show that
she is a qualified individual with a disability, that the City
was aware of her disability, and that the City failed to
reasonably accommodate that disability. See EEOC v.
Sears, Roebuck & Co., 417 F.3d 789, 797 (7th Cir. 2005). The
Rehabilitation Act, which applies to programs receiving
federal financial assistance, also requires employers to
accommodate qualified individuals with a disability and
incorporates the standards of the ADA. See 29 U.S.C.
§ 794(d); Garg v. Potter, 521 F.3d 731, 736 (7th Cir. 2008);
Jackson v. City of Chicago, 414 F.3d 806, 810 (7th Cir. 2005).
  Even if we assume that King is disabled for purposes of
the ADA, she could not survive the City’s motion for
summary judgment because the City provided her with a
reasonable accommodation. King is correct to note that the
ADA recognizes reassignment to a vacant position as a
potentially reasonable accommodation if a disabled
employee is unable to perform the essential functions of a




     On September 25, 2008 the President signed the Americans
with Disabilities Act Amendments of 2008, Pub. L. No. 110-325,
122 Stat. 3553. These amendments, which amended and argu-
ably broadened the ADA’s definition of “disability,” become
effective January 1, 2009, and therefore do not apply to this case.
No. 08-2052                                                 5

job. 42 U.S.C. § 12111(9)(B). On the other hand, employers
are not required “ ’to reassign a disabled employee to a
position when such a transfer would violate a legitimate,
nondiscriminatory policy of the employer.’ ” EEOC v.
Humiston-Keeling, Inc., 227 F.3d 1024, 1028 (7th Cir. 2000)
(quoting Dalton v. Subaru-Isuzu Auto., Inc., 141 F.3d 667, 679
(7th Cir. 1998)). Nondiscriminatory hiring and reassign-
ment provisions of a collective bargaining agreement
qualify as such a policy. Winfrey v. City of Chicago, 259 F.3d
610, 618 (7th Cir. 2001).
  The record shows that the City complied with the
collective bargaining agreement and considered King for
other vacant positions. Based on the placement policies
contained in the agreement, however, King had no right to
bump another employee from the other available positions
within her collective bargaining unit. She failed in her
effort to obtain a position outside her unit because she was
not the most qualified candidate. As far as this record
shows, the City applied its disability layoff policies in a
neutral, nondiscriminatory way and accommodated King
as far as it could. See Winfrey, 259 F.3d at 618 (holding that
employer was not required to assign disabled employee to
job reserved for union members under collective bargain-
ing agreement); Humiston-Keeling, 227 F.3d at 1026-27
(holding that employer was not required to reassign
disabled warehouse picker to clerical position if she was
not the most qualified applicant according to employer’s
nondiscriminatory policy).
  Finally, King argues that the district court should have
granted her motion under Rule 59(e) on the ground of
6                                              No. 08-2052

newly discovered evidence. King contends that this
evidence, in conjunction with the disability determination
based on Wisconsin law, would make it clear that the
City’s efforts fell short of reasonable accommodation.
King’s new evidence, however, was available to her
throughout the litigation, and the district court therefore
did not abuse its discretion in denying the motion. See
County of McHenry v. Ins. Co. of the W., 438 F.3d 813, 819
(7th Cir. 2006); Neal v. Newspaper Holdings, Inc., 349 F.3d
363, 368 (7th Cir. 2003).
  Accordingly, we A FFIRM the judgment of the district
court.




                          12-4-08
