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"
How later courts described this case
- 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"
- stating that the federal rules establish a presumption that relevant evidence is admissible
- "An employer is not required to violate the provisions of a collective bargaining agreement to reassign a disabled employee pursuant to the ADA."
- holding that a district court’s determination as to the applicability of a privilege is reviewed for clear error
Written by the judges who cited it.
The opinion
In the
United States Court of Appeals
For the Seventh Circuit
No. 99-1771
Donald Rehling,
Plaintiff-Appellant,
v.
The City of Chicago,
a municipal corporation,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 96 C 6467--Robert W. Gettleman, Judge.
Argued January 10, 2000--Decided March 21, 2000
Before Flaum, Manion, and Evans, Circuit Judges.
Flaum, Circuit Judge. Donald Rehling appeals the
district court’s grant of partial summary
judgment/1 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
accommodation/2 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
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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).
1. The Availability of a Position in District 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.
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.
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.
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
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.
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.
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.
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.
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.
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.
1. The Admission of Evidence Regarding the
Alternative Response Unit
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).
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.
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).
Once a plaintiff in an ADA disparate treatment
case has established the proper connection
between his disability and an adverse job
action/6 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.
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.
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
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.
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.
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).
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
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.
/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)).