Basith, Abuzaffer v. Cook County

In the

United States Court of Appeals

For the Seventh Circuit

No. 00-1656

Abuzaffer Basith,

Plaintiff-Appellant,

v.

Cook County,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 96 C 5596--Ann Claire Williams, Judge.

Argued November 2, 2000--Decided March 6, 2001

Before Manion, Kanne, and Evans, Circuit Judges.

Manion, Circuit Judge. Abuzaffer Basith sued

Cook County, his employer, for discriminating

against him in violation of the Americans with

Disabilities Act ("ADA"), 42 U.S.C. sec.

12112(a), and for retaliation in violation of

Title VII, 42 U.S.C. sec. 2000e. The district

court granted summary judgment for Cook County on

both claims. Basith appeals. We affirm.

I.

On July 15, 1987, Abuzaffer Basith was hired for

the position of Pharmacy Technician II in the

Inpatient Division of the Pharmacy Department at

Cook County Hospital. Basith was assigned to the

clean air room, which required him to perform a

variety of tasks, including preparation of

intravenous solutions, and delivery and stocking

of medications.

Unfortunately Basith’s job was interrupted by

several injuries and resulting physical

limitations. On July 12, 1991, Basith injured his

right leg in a car accident. After nearly ten

months of taking medical leave, Dr. Robert

Collins released Basith to return to work with

several restrictions. For ten weeks Basith was

not to stand for more than 10 minutes at a time,

walk more than 50 yards at a time, or lift more

than 10 pounds. He was also restricted from

bending, stooping, crouching, twisting, climbing,

squatting, or kneeling. Upon returning to work,

Basith reported to Dr. Zachary Powell at Employee

Health Services at Cook County Hospital, who

completed a disposition form noting his

restrictions. However, based on these

restrictions, the Associate Director of the

Pharmacy Department, LuAnn Dodini, refused to

allow Basith to return to work. Thus he did not

work from April to June 22, 1992. On June 22,

1992, Dr. Powell established new restrictions, to

be effective through August 4, 1992. Among other

things, these restrictions limited Basith from:

lifting, carrying, pushing and pulling over 20

pounds; lifting fifteen pounds overhead; bending,

stooping and climbing; and spending more than

one-third of a day standing or walking. After

Dodini determined that Basith could return to

work with his new restrictions, he returned to

his original position on June 22, 1992.

About three weeks later, Basith wrote Dodini a

letter requesting a shift change because his

current shift required him to stand and move too

much. At his request he was given a handicapped

parking sticker which required a showing that he

could only walk a maximum of 200 feet at one

time. However, Dodini prohibited Basith from

working as a Pharmacy Technician II on any shift

because of the walking limitation. The hospital

later concluded that Dodini’s concern was "a

bureaucratic issue more than a medical issue,"

and on August 8, 1992 he returned to work as a

Pharmacy Technician II. Basith filed a successful

grievance with Cook County for the salary he lost

during the three-week period he was prohibited

from working.

Then, on August 12, 1992, Basith reported a

second injury when he fell from a chair at work.

He required additional surgery, and took a one-

year medical leave of absence. Basith was finally

released to work on July 12, 1993, with

restrictions in effect until August 4, 1993. The

restrictions prohibited him from more than

minimal walking and from lifting over 10 pounds.

Because of these new restrictions, Dodini

informed Dr. Powell that Basith could not work as

a Pharmacy Technician II; thus he remained on

medical leave of absence. Basith returned to

Employee Health Services on August 4, 1993, with

the same lifting and walking restrictions. But

Dodini told Dr. Powell that Basith could not work

in his old position with these restrictions. Thus

he remained off work.

On December 14, 1993, Basith’s personal

physician issued permanent restrictions. Basith

was restricted from walking, bending, or stooping

more than minimally and from lifting over 10

pounds. On January 19, 1994, Cook County offered

Basith a new Pharmacy Technician II position in

the recently opened operating room pharmacy at

Cook County Hospital. The Director of the

Pharmacy Department, Dennis Hays, agreed to have

storeroom personnel deliver stock to the elevator

outside the operating room pharmacy in light of

Basith’s walking restrictions. Basith accepted

the position on March 14, 1994, but he left a few

days later, claiming that Cook County "wasn’t

accommodating him enough."

On May 20, 1994, Basith and his union

representative met with Hays to discuss Basith’s

desire to return to work in the clean air room.

Hays agreed to create a special assignment for

Basith in the clean air room where he would be

responsible for making intravenous "piggyback"

solutions which did not require him to do

delivery, stocking, or cleaning. Basith accepted

the new position.

But Basith was still not satisfied. On February

28, 1995, Basith filed a grievance because he had

not been offered an opportunity to cover overtime

shifts in the clean air room. But, as Hays

explained, the overtime shifts required employees

to deliver and stock medications (which Basith

could not do with his limitations), and no

overtime was needed to make intravenous piggyback

solutions. Therefore Basith was not offered

overtime.

On January 19, 1996, Basith incurred a third

injury, this time by striking his right knee on a

cart at work. This resulted in another medical

leave of absence. After several weeks Dr. Ira

Kornblatt released Basith to return to his job

without restrictions. On April 4, 1996, Employee

Health Services approved Basith for return to

work but with restrictions that he not crouch,

squat, kneel, or crawl more than one-third of the

day. The same day, Candace Richardson, Hays’

successor as Director of the Pharmacy Department,

informed Basith that she would reevaluate his

assignment in light of the new restrictions. On

April 25, 1996, she informed Basith that she

would expand his assignment to include other

shifts beyond his special assignment, beginning

June 7, 1996.

On June 7, 1996, Basith reported another knee

injury, and he took his fourth medical leave of

absence. Dr. Kornblatt determined that he could

return to the normal job activities of a pharmacy

technician without restrictions. Basith did not

return to work, however. On July 16, 1996, one of

Basith’s attorneys requested that Cook County

reasonably accommodate Basith by assigning him

only profiling tasks, which involve data entry,

for a month until he underwent surgery. Cook

County responded that it could not do so because

only registered pharmacists could perform

profiling tasks, and Basith was not qualified.

On January 3, 1997, Richardson sent a letter to

Basith stating that he had exhausted his sick and

vacation time, and informing him that he should

report to the Department of Human Resources

regarding an appropriate medical leave of

absence. Basith’s attorneys and Cook County

subsequently agreed that Basith should have an

independent medical examination. The parties

selected Dr. Morgenstern, who recommended that

Basith perform a "mostly sitting" job. Cook

County offered Basith a position in the

acquisitions area of the Pharmacy Department,

which he accepted. Basith returned to work on

July 29, 1997, and is apparently still employed

in this position.

As these injuries occurred during his

employment, Basith filed periodic charges with

the Equal Employment Opportunity Commission

("EEOC") which form the basis of this case. On

July 7, 1992, Basith filed his first claim

alleging that in April and May of 1992, Cook

County discriminated against him based on his

physical handicap and sex. At the time of filing

Basith had recently returned from a ten-month

leave of absence due to a leg injury from an

automobile accident. The EEOC issued a right-to-

sue letter on September 8, 1995. In the meantime,

on August 2, 1995, Basith filed another charge

claiming that from September 1994 through May

1995 Cook County discriminated against him based

on race and disability in denying him overtime

opportunities. The EEOC issued a right-to-sue

letter for this charge on January 31, 1996. On

February 18, 1997, Basith filed a charge claiming

that on June 7, 1996, the date of his fourth

reported injury (knee), Cook County discriminated

against him based on race, sex, national origin,

and disability, and retaliated against him. It

appears that the race, sex, and national origin

charges have been dropped. The EEOC issued a

right-to-sue letter for this charge on March 31,

1997.

On August 20, 1997, after filing several

complaints with the district court, Basith filed

a First Amended Consolidated Complaint, which

combined claims from all of the charges he had

filed with the EEOC. Basith sought relief under

the ADA for discrimination based on a disability

and under Title VII for retaliation. The district

court granted Cook County’s Motion for Summary

Judgment on both claims. We affirm.

II.

"We review the district court’s entry of summary

judgment de novo," Miller v. American Family

Mutual Insurance Co., 203 F.3d 997, 1003 (7th

Cir. 2000), and we will view all of the facts and

draw all reasonable inferences in favor of the

nonmoving party. See id. Summary judgment is

proper if 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). The

plaintiff "cannot merely allege the existence of

a factual dispute to defeat summary judgment."

McPhaul v. Bd. of Comm’rs of Madison County, 226

F.3d 558, 563 (7th Cir. 2000). Instead, he must

supply evidence sufficient to allow a jury to

render a verdict in his favor. See id.

A. ADA Claim

The ADA prohibits discrimination "against a

qualified individual with a disability because of

the disability of such individual in regard to

job application procedures, the hiring,

advancement, or discharge of employees, . . . and

other terms, conditions, and privileges of

employment." 42 U.S.C. sec. 12112(a). In

addition, "[t]he Act also provides that an

employer discriminates against a qualified

individual with a disability by ’not making

reasonable accommodations to the known physical

or mental limitations of an otherwise qualified

individual with a disability.’" McPhaul, 226 F.3d

at 563 (quoting 42 U.S.C. sec. 12112(b)(5)(A)).

Thus, under the ADA, there are two distinct

categories of disability discrimination claims:

failure to accommodate and disparate treatment.

See Sieberns v. Wal-Mart Stores, Inc., 125 F.3d

1019, 1021-22 (7th Cir. 1997). In a reasonable

accommodation case, like the present one, the

plaintiff must first show that: 1) he was

disabled; 2) his employer was aware of his

disability; and 3) he was a qualified individual

who, with or without reasonable accommodation,

could perform the essential functions of the

employment position. See McPhaul, 226 F.3d at

563.

The district court concluded that Basith

presented sufficient evidence to suggest he was

disabled from June, 1991 forward. Nevertheless,

the district court granted summary judgment to

Cook County on the ADA claim, concluding that

Basith was unable to perform the essential

functions of the Pharmacy Technician II position

with or without reasonable accommodation. Basith

argues that he presented sufficient evidence to

establish that he was a qualified individual with

a disability, and that Cook County violated the

ADA by failing to provide him with a reasonable

accommodation. We address each argument in turn.

1. Qualified individual with a disability.

The ADA only protects a "qualified individual

with a disability." To determine whether someone

is a "qualified individual with a disability," we

apply a two-step test. See 29 C.F.R. app. sec.

1630.2(m). "First, we consider whether ’the

individual satisfies the prerequisites for the

position, such as possessing the appropriate

educational background, employment experience,

skills, licenses, etc.’" Bombard v. Fort Wayne

Newspapers, Inc., 92 F.3d 560, 563 (7th Cir.

1996) (quoting 29 C.F.R. app. sec. 1630.2(m)).

"If he does, then we must consider ’whether or

not the individual can perform the essential

functions of the position held or desired, with

or without reasonable accommodation.’" Id.

(quoting same). There is no question in this

appeal about Basith’s background. At issue is

Basith’s ability to perform the essential

functions of his job.

Basith argues that, with reasonable

accommodation, he could perform all of the

essential functions of the Pharmacy Technician II

position. The district court, however, found that

delivery and stocking of medication were

essential functions of the Pharmacy Technician II

position, and that the job required some walking

and lifting of boxes of medications and supplies

which weighed up to 20 pounds. In light of his

medical restrictions, the district court held

that Basith could not perform these functions,

and was therefore not a "qualified individual

with a disability."

To determine the essential functions of a

position, a court may consider, but is not

limited to, evidence of the employer’s judgment

of a position, written job descriptions prepared

before advertising or interviewing applicants for

the job, the work experience of past incumbents

of the job, and the work experience of current

incumbents in similar jobs. See 29 C.F.R. sec.

1630.2(n)(3).

In April of 1989, Cook County had set forth the

following job description for the Pharmacy

Technician II position:/1

Must be able to work in a sedentary position for

long hours, to walk or stand for 4-8 hours daily,

to do occasional lifting of objects of up to 50

pounds, to climb, stoop, or crouch, and to push

loaded delivery carts and trucks up a 15% grade

on ball casters.

A Cook County "Essential Job Function" form also

described both delivery and stocking as essential

functions. Thus, according to both the job

description and the essential job function form,

delivery of medication was an essential function.

Basith argues that we should not rely on the

Cook County job description forms because these

documents were not "written job descriptions

prepared before advertising or interviewing

applicants for the job," which he alleges is

mandated by 29 C.F.R. sec. 1630.2(n)(3)(ii).

However, this argument overstates the

requirements of the regulation, which itself

states that acceptable evidence "is not limited

to" the listed examples for determining essential

functions. See 29 C.F.R. sec. 1630.2(n)(3). It

does not limit the court’s consideration of

written job descriptions to ones prepared before

advertising or interviewing for the job. To the

contrary, the very first example of acceptable

evidence under the regulation is the employer’s

judgment, and the written job descriptions are

clearly instances of the employer’s judgment as

to which functions are essential. Also, the job

descriptions pre-dated Basith’s first injury.

Moreover, the "Essential Job Function" form was

completed by six Pharmacy Department employees,

and the regulation lists work experience of

current and past incumbents on the job as

examples of acceptable evidence.

Basith contends that the district court erred

because it allegedly did not consider his

affidavit and the affidavit of a co-worker

regarding the functions of the job. These

affidavits, however, do not offer any evidence

that conflicts with the essential job functions

as defined by Cook County. Basith’s affidavit

simply states the following: "That at all times

relevant to my case, the duties of a pharmacy

Technician II in the clean air room were

sedentary or light duty in nature with the

exception of delivery of intravenous piggybacks

which required approximately 45 minutes to one

hour per shift." This general statement does not

provide any evidence that delivery was not

essential, and in fact demonstrates that Basith

himself viewed delivery as part of the job. In

any event, conclusory allegations and self-

serving affidavits, unsupported by the record,

will not preclude summary judgment. See Haywood

v. North Am. Van Lines, Inc., 121 F.3d 1066, 1071

(7th Cir. 1997).

Basith also submitted the affidavit of a co-

worker, Habeeb Al-Aidroos, who stated that "the

task of delivery in the clean air room requires

approximately 45 minutes to one hour during an 8-

hour shift; the remaining tasks of a pharmacy

technician II in the clean air room require

little walking, little standing and little

lifting." This statement does not provide

evidence that delivery was not essential.

Moreover, "[a]lthough we look to see if the

employer actually requires all employees in a

particular position to perform the allegedly

essential functions, we do not otherwise second-

guess the employer’s judgment in describing the

essential requirements for the job." See DePaoli

v. Abbott Laboratories, 140 F.3d 668, 674 (7th

Cir. 1998) (citations omitted). See also E.E.O.C.

v. Amego, Inc., 110 F.3d 135, 147 (7th Cir. 1997)

(same). The affidavits Basith presented are

insufficient to overcome this deference. The

plaintiff must offer sufficient evidence to show

the employer’s understanding of the essential

functions of the job is incorrect, and Basith has

not done so. See Martinson v. Kinney Shoe Corp.,

104 F.3d 683 (4th Cir. 1997) (adopting employer’s

judgment of essential function where plaintiff

failed to provide any evidence at summary

judgment stage to dispute employer’s

understanding of essential functions); Milton v.

Scrivner, Inc., 53 F.3d 1118, 1124 (10th Cir.

1995) (same).

In addition, Basith argues that delivery is not

an essential function of the Pharmacy Technician

II position because it takes up only 45 minutes

to an hour of an 8-hour day. But an essential

function need not encompass the majority of an

employee’s time, or even a significant quantity

of time, to be essential./2 See, e.g., Miller v.

Illinois Dep’t of Corrections, 107 F.3d 483 (7th

Cir. 1997). Rather, an essential function must be

a fundamental duty of the job. See 29 C.F.R. sec.

1630.2(n).

We addressed a parallel situation in Miller v.

Illinois Dep’t of Corrections. In Miller, this

court held that a blind correctional officer who

could not stand guard or count inmates was not

qualified under the ADA, even though she could

perform other essential functions. As the court

noted, "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." 107 F.3d at 485. We held

in Miller that the duties were essential

functions because the prison had a valid reason

(the prevention of riots) for requiring all of

its guards to be able to perform them. See id.;

see also Holbrook v. City of Alpharetta, Georgia,

112 F.3d 1522, 1527 (11th Cir. 1997) ("Even

assuming that an Alpharetta police detective

spends a relatively small amount of time

performing the type of field work that Holbrook

concedes he cannot undertake, the record

establishes--and Holbrook has not proven to the

contrary--that the collection of all evidence at

the scene of the crime is an essential function .

. . ."). In this case, the evidence established

that delivery of medication to the patients is

essential to the functioning of the pharmacy, and

Cook County determined that the Pharmacy

Technician II was the best position to fulfill

this need. Cook County’s valid reason for

treating delivery as an essential function--the

needs of the pharmacy’s patients--renders the

limited time devoted to delivery irrelevant.

Basith also argues that delivery is not an

essential function of the Pharmacy Technician II

position because there are other ways to deliver

medication, namely that other hospital employees

deliver the medication. In other words, if Basith

can’t deliver, someone else must do so. It is

possible that any function, whether or not

essential, could be assigned to additional

employees. The mere fact that others could do

Basith’s work does not show that the work is non-

essential.

Cook County is allowed to determine the job

responsibilities of its pharmacy technicians, and

it is not this court’s duty to second-guess that

judgment so long as the employer’s reasons are

not pretextual. See Depaoli, 140 F.3d at 674. In

effect, Basith is asking to assign to someone

else the duties of his position. However, "[a]n

employer need not reallocate the essential

functions of a job, which a qualified individual

must perform." Benson v. Northwest Airlines,

Inc., 62 F.3d 1108, 1112-13 (8th Cir. 1995). See

also Gile v. United Airlines, Inc., 95 F.3d 492,

499 (7th Cir. 1996) ("Nor is an employer

obligated to create a ’new’ position for the

disabled employee."). In fact, Basith’s

suggestion would result in a restructuring of

both his job and the jobs of other employees.

This is not required by the ADA. See Hansen v.

Henderson, 233 F.3d 521, 523 (7th Cir. 2000)

(Rehabilitation Act case affirming summary

judgment for defendant because "[t]wo new jobs

would have to be manufactured, one for [the

employee] and one for his helper.").

Finally, Basith claims that delivery was not an

essential function because Hays had created a

position for him in May 1994 which did not

require delivery. But this evidence merely shows

the job could be restructured, not that delivery

was non-essential. In fact, at the time Hays

created a position for Basith, he stated he felt

he was going beyond ADA requirements. See Def.

Ex. 27 ("Although this is a change in the job

functions, which is not required, I will agree to

it."). Absent independent evidence that the

function was non-essential, we do not believe it

wise to consider the special assignment as proof

that delivery was not an essential function

because it would punish Cook County for going

beyond the ADA’s requirements. See, e.g.,

Sieberns v. Wal-Mart Stores, Inc., 125 F.3d 1019,

1023 (7th Cir. 1997) ("Employers should not be

discouraged from doing more than the ADA

requires. . . ."); Vande Zande v. State of Wis.

Dep’t. of Admin., 44 F.3d 538, 545 (7th Cir.

1995) ("[I]f the employer . . . bends over

backwards to accommodate a disabled worker--goes

further than the law requires . . . it must not

be punished for its generosity by being deemed to

have conceded the reasonableness of so far-

reaching an accommodation."). The fact that

restructuring is feasible, in itself, is not

persuasive evidence one way or the other that a

function is essential to a job.

In sum, the evidence established that delivery

was an essential function. The evidence also

established that Basith could not perform the

delivery function without some kind of

accommodation, although Basith suggests he could

perform deliveries with a motorized wheelchair

with a carrying basket, and the regulation does

define a "qualified individual with a disability"

as an individual who can perform the essential

functions of the job with or without

accommodation./3

Basith provides no evidence to substantiate this

claim, such as a report from his doctor that he

could fully perform the delivery function with

his proposed wheelchair. Compare Whitbeck v.

Vital Signs, Inc., 116 F.3d 588 (D.C. Cir. 1997)

(denying summary judgment under similar statute

where plaintiff provided evidence that employer

rejected accommodation of a motorized cart and

plaintiff’s doctor believed she could perform

work duties with this accommodation). There is no

evidence in the record that a motorized

wheelchair has ever been used for this purpose at

the pharmacy, and we have no indication whether a

wheelchair would actually allow Basith to

surmount the various hurdles of the delivery

function--e.g., pushing delivery carts and trucks

up a 15% grade on ball casters. For that matter,

Basith offers no evidence that a wheelchair would

enable him to perform the job within a reasonable

amount of time.

Basith’s bare assertion that a wheelchair would

accommodate his inability to perform delivery of

medications is sheer speculation. Standing alone,

Basith’s allegation that he could perform the

essential function of delivery with a wheelchair

is not enough to create a material issue of fact.

Accordingly, we affirm the district court’s

conclusion that Basith was not a "qualified

individual with a disability" because he could

not perform the essential function of delivery.

We also affirm the district court’s conclusion

that Basith could not perform the essential

function of stocking medications due to his

lifting restrictions. On appeal, Basith does not

dispute that stocking was an essential function.

Instead, Basith claims that he could do all of

the lifting needed to perform the Pharmacy

Technician II position.

In addressing Basith’s argument, we initially

note that the plaintiff has the burden of showing

that he can perform the essential functions of

the job, with or without a reasonable

accommodation. See Bultemeyer v. Fort Wayne

Community Schools, 100 F.3d 1281, 1284 (7th Cir.

1996). On appeal, Basith argues that to perform

the stocking function he only needed to be able

to lift 20 pounds, which Basith contends he could

do. Hays did testify that Cook County reduced the

lifting requirement to 20 pounds in the late

1980’s.

The question is thus whether Basith presented

evidence that he could lift 20 pounds. It is

clear that Basith could not perform the 20-pound

lifting requirements of his stocking duties

during the times when his restrictions limited

him to no more than 10 pounds, from April 1992

through June 22, 1992, from July 12, 1993 through

August 4, 1993, and from December 14, 1993

forward. Moreover, we have Basith’s own

affidavit, which states:

That at each time I requested to return to work

for the defendant from March, 1992 through the

present I was physically able to perform all of

the tasks of a Pharmacy Technician II assigned to

either the clean air room or the pediatric

pharmacy including deliveries but with the

exception of the occasional lifting for a large

supply bottle. . . .

Pl. Ex. 1. Although Basith claims he could

perform all of the tasks of a Pharmacy Technician

II, including the lifting requirements, he has

not met his burden of showing he could perform

the essential function of stocking medication

during the time periods when his medical

restrictions limited him to lifting no more than

10 pounds. His own affidavit suggests he was

incapable of performing the essential task of

stocking medications at that time, and the mere

statement that he could perform all tasks is not

sufficient evidence to survive the summary

judgment motion. See Haywood, 121 F.3d at 1071.

Accordingly, Basith was not a "qualified

individual with a disability" during those time

periods because he was restricted from lifting

more than ten pounds and thus could not perform

the essential functions of a Pharmacy Technician

II.

From June 22, 1992 through August 4, 1992,

Basith’s medical restrictions permitted him to

lift up to 20 pounds. However, Basith never filed

a charge with the EEOC respecting that time

period. He complained to the EEOC that he was

discriminated against in April and May of 1992,

and he complained to the EEOC that he was

discriminated against beginning August 5, 1992,

but he did not file a charge with the EEOC

regarding his treatment between June 22 and

August 4 when his restrictions permitted him to

lift up to 20 pounds./4

Assuming that Basith’s argument that he could

lift 20 pounds and thus perform the stocking

function is based on the time period when his

restrictions permitted him to lift 20 pounds,

this failure to exhaust his administrative

remedies by filing an EEOC claim is fatal to

Basith’s argument. See, e.g., Stewart v. County

of Brown, 86 F.3d 107, 110 (7th Cir. 1996) ("In

order to recover for violations of Title I of the

ADA, a plaintiff must file a charge of

discrimination with the EEOC within 180 days of

the alleged violation (if he does not file an

initial charge with a state agency)."). Since the

only time Basith arguably was able to perform the

essential function of stocking is barred, we

affirm the district court’s holding that Basith

was not a "qualified individual with a

disability."

2. Reasonable accommodation.

Basith argued that Cook County violated the ADA

because it failed to provide him with a

reasonable accommodation for his disability. We

need not decide whether Basith was denied

reasonable accommodation in light of his failure

to show a question of fact existed as to whether

he was a "qualified individual with a

disability." See Bombard, 92 F.3d at 563.

Assuming, arguendo, that Basith were able to

perform the essential functions of the Pharmacy

Technician II position with a reasonable

accommodation, however, we would still affirm the

district court’s decision that Cook County

accommodated Basith’s disability.

During much of the time at issue in this case,

Basith was on medical leave of absence, and the

district court held that this qualifies as a

reasonable accommodation. See 29 C.F.R. sec.

1630(o), App. We agree with this holding. Basith

challenges the district court’s holding that when

he was not on medical leave the special

assignment in the clean air room was a reasonable

accommodation. Basith argues that the clean air

room assignment was not a reasonable

accommodation because he did not have overtime or

holiday shift opportunities (the overtime and

holiday shifts would have required Basith to

perform deliveries), and contends that Cook

County should have restructured the job so that

other employees could perform the delivery

function during an overtime shift, or else

allowed him to use a wheelchair for deliveries.

We find that Cook County went above and beyond

the requirements of the ADA in creating Basith’s

special assignment. As noted above, an employer

is not required to reallocate the essential

functions of a job. See Gile, 95 F.3d at 499. Yet

Cook County did so, and thus Basith was able to

work a regular shift in the clean air room

without performing the deliveries which his

disability precluded. Cook County need not

restructure further (especially when evidence

suggests there was no need for overtime

performance of Basith’s duties), so that Basith

could work an overtime shift. As the district

court noted, "[Cook County] should not be held

liable for its reasonable refusal to create

special assignments that would include overtime

and holiday work for Basith." Basith, 2000 WL

246255 at *11. And, since the clean air room

assignment accommodated Basith’s disability, Cook

County was under no duty to provide a different

accommodation, such as the proposed wheelchair.

Accordingly, even if Basith were able to perform

the essential functions of the Pharmacy

Technician II position with accommodation, his

ADA claim would fail.

B. Title VII Retaliation Claim

Basith also claims that Cook County retaliated

against him for his charges of discrimination

with the EEOC by refusing to allow him to return

to work and by refusing to allow him to work

overtime in his special assignment. It is

unlawful under Title VII "for an employer to

discriminate against any of his employees . . .

because he has opposed any practice made an

unlawful employment practice by [Title VII]." 42

U.S.C. sec. 2000e-3(a). Absent direct evidence of

discriminatory intent, "a claim of retaliation is

examined ’using the familiar McDonnell Douglas

burden shifting analysis.’" Gleason v. Mesirow

Financial, Inc., 118 F.3d 1134, 1146 (7th Cir.

1997) (quoting McKenzie v. Illinois Dep’t. of

Transp., 92 F.3d 473, 483 (7th Cir. 1996)). See

McDonnell Douglas Corp. v. Green, 411 U.S. 792,

800-06 (1973). Under McDonnell Douglas, Basith

must first establish a prima facie case of

retaliation. If he succeeds, Cook County must

present a legitimate, non-retaliatory reason for

its actions. If Cook County provides a

legitimate, non-retaliatory reason, then Basith

must show that Cook County’s reasons were

pretextual. See Gleason, 118 F.3d at 1146.

To establish a prima facie case of retaliation,

Basith must establish that 1) he reported or

otherwise opposed conduct prohibited by Title

VII; 2) he suffered an adverse, job-related

action; and 3) there is a causal link between his

opposition to unlawful discrimination and the

adverse action. See id. The district court found

that Basith had met the first element needed to

establish a prima facie case, but that he failed

at step two because his allegations of adverse

job-related actions were unsupported by the

record.

Basith argued before the trial court that he

suffered two adverse, job-related actions in

retaliation for his protected speech: Cook

County’s refusal to allow him to return to work

for several periods between April 1992 and July

1997, and Cook County’s refusal to allow him to

work overtime in his special assignment. Basith’s

argument on appeal is cursory at best. He does

not explain how these were adverse, job-related

actions. Basith simply argues that Cook County’s

refusal to allow him to return to work, its

refusal to accommodate his disability by allowing

him to use a wheelchair or by restructuring his

work assignment, and its refusal to allow him to

work overtime in his special assignment, could be

seen by a trier of fact as retaliation.

"The question whether a change in an employee’s

job or working conditions is materially adverse,

rather than essentially neutral, is one of fact .

. . and so can be resolved on summary judgment

only if the question is not fairly contestable."

Williams v. Bristol-Myers Squibb Co., 85 F.3d

270, 273-74 (7th Cir. 1996). We need not decide

whether the alleged adverse employment actions

cross this line, however, in light of Basith’s

clear failure to show a causal link between his

speech and the retaliation he charges.

To prove the third element of his prima facie

case, causation, Basith must show that Cook

County would not have taken the adverse

employment actions "but for" his protected

expression. See McKenzie, 92 F.3d at 483. It does

not appear from the record that Cook County’s

actions meet this standard. More importantly,

Basith makes no attempt to show that Cook

County’s employment actions would not have

occurred but for his protected expression, and

this is fatal to his claim.

In addition, even had Basith established a prima

facie case, Cook County had provided legitimate

non-retaliatory reasons for requiring Basith to

take medical leave and for refusing to schedule

him for overtime and holiday work. In particular,

Basith could not perform the essential functions

of his job, and there was no need to perform

overtime or holiday work under his special

assignment. Basith has provided no evidence that

these reasons were pretextual. Thus, his

retaliation claim must fail.

III.

We conclude that Basith’s ADA claim must fail

because he was not a "qualified individual with a

disability" under the ADA, and, moreover, Cook

County accommodated his disability. His Title VII

retaliation claim also fails because he failed to

show that Cook County’s alleged adverse

employment actions were caused by his protected

speech, and because Cook County provided

legitimate nondiscriminatory reasons for these

actions. The district court is AFFIRMED.

FOOTNOTES

/1 A revised job description prepared in April 1991

included the following requirements for

technicians:

1) Must be able to tolerate prolonged

walking/standing.

2) Must be able to lift and carry objects

weighing up to 60 pounds.

3) Must be able to push medication carts over

prolonged distances and up ramps.

Hays testified, however, that the lifting

requirement had been decreased to 20 pounds in

the late 1980’s.

/2 Whether a task requires a large or small portion

of an employee’s time could be evidence that it

is or is not an essential function. See 29 C.F.R.

sec. 1630(n)(3)(iii) (providing example of "[t]he

amount of time spent on the job performing the

function" as evidence that function is

essential). It is but one factor, and in this

case someone--if not the technician--would have

to devote one hour to the essential function of

delivering the piggybacks.

/3 The parties dispute whether Basith made one

request or repeatedly asked to be able to use a

motorized wheelchair. Cook County, which contends

Basith only asked once, claims that his request

was rendered moot by the special assignment in

the clean air room for purposes of determining

whether Cook County provided a reasonable

accommodation. We need not address this question

to determine whether Basith was a "qualified

individual with a disability."

/4 Basith had also filed a charge with the Illinois

Department of Human Rights, which was

subsequently withdrawn. That charge also

addressed a different time period.