Nicosia, Michael v. Yellow Freight Syste

In the

United States Court of Appeals

For the Seventh Circuit

No. 99-3415

Equal Employment Opportunity Commission,

Plaintiff,

and

MICHAEL NICOSIA,

Intervening Plaintiff-Appellant,

v.

YELLOW FREIGHT SYSTEM, INC.,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 98 C 2725--Charles P. Kocoras, Judge.

Argued APRIL 4, 2000

Re-argued En Banc NOVEMBER 29, 2000

Decided June 12, 2001

Before FLAUM, Chief Judge, POSNER, COFFEY,

EASTERBROOK, RIPPLE, MANION, KANNE, ROVNER,

DIANE P. WOOD, EVANS, and WILLIAMS, Circuit

Judges.

COFFEY, Circuit Judge. On May 4, 1998,

the Equal Employment Opportunity

Commission (EEOC) filed a single count

complaint in the Northern District of

Illinois against the Defendant-Appellee

Yellow Freight System, Inc., alleging

violations of the Americans with

Disabilities Act based on Michael

Nicosia’s, an employee of Yellow Freight,

HIV/AIDS disability./1 Specifically, the

EEOC alleged that Yellow Freight

terminated Nicosia because of his AIDS

related cancer and in retaliation for

Nicosia’s filing of a complaint with the

EEOC. Upon the defendant’s motion, the

district court granted summary judgment

in favor of Yellow Freight. We affirm.

I. BACKGROUND

Nicosia began his career with Yellow

Freight in August of 1990 as a dockworker

at the company’s Chicago Ridge, Illinois,

Terminal. At that time, Yellow Freight, a

trucking services company, employed some

550 dockworkers who loaded and unloaded

freight trailers, checked the pieces

count, and weighed shipments. Initially,

Nicosia was a "casual worker" for the

company. As a casual worker, Nicosia

served as an on-call replacement

worker./2

In February 1991, Nicosia was elevated

to a full-time dockworker./3 As a full-

time dockworker at the Chicago Ridge

Terminal, Nicosia was supervised by

Gerald Sendziol. Sendziol was responsible

for making decisions at the terminal with

respect to leaves of absence and whether

or not to terminate a particular

employee.

It is important to note that Yellow

Freight has a five-step progressive

discipline procedure to deal with

employees who accumulate numerous and

excessive absences./4 Pursuant to the

system, an employee who violates the

company’s attendance policy would be

subject to the following five steps: 1) a

coaching session; 2) a letter of

information; 3) a written warning; 4)

suspension; and finally 5)

termination./5 It is undisputed that

since 1992 Yellow Freight has terminated

over 90 employees pursuant to its

progressive disciplinary system for

excessive absenteeism./6

To say that Nicosia’s attendance record

was woeful is somewhat of an

understatement. In 1991, Nicosia’s first

year as a full-time employee with Yellow

Freight, he was scheduled to work 113

days, but left work early two times for

illness and called in sick thirty-seven

times./7 In 1992, his work attendance

record was not much better when, out of

171 scheduled work days, he left work

early because of an illness on one

occasion, and took three personal days

and twelve sick days. In the following

year, Nicosia was absent from work more

than half of the 242 days that he was

assigned to work (126 absences for

illness, left work early four times, and

three unexcused absences). In 1994, out

of 227 scheduled work days, he took

another forty-seven sick days, left work

early three times, and had three

unexcused absences.

In November of 1995,/8 Nicosia called

Sendziol and told his supervisor that he

needed time-off for an unspecified

medical problem. Sendziol told him that

he was ineligible for family and medical

leave, but that he could take a 90-day

unpaid leave of absence. Presumably

because Nicosia did not want to be gone

that long, he decided to call in sick for

the next two weeks.

In December 1995, Nicosia was diagnosed

as HIV positive. In January 1996,

Nicosia’s condition deteriorated and he

was diagnosed with Kaposi’s sarcoma, an

AIDS-related cancer. On January 12, 1996,

Nicosia sent a letter to Sendziol

informing the company of his medical

condition.

After being diagnosed with Kaposi’s

sarcoma, Nicosia’s work attendance

plummeted even further in 1996. In fact,

he called in sick every working day

during the months of January, February,

and March. As a result of Nicosia’s poor

attendance, Yellow Freight initiated its

progressive disciplinary system.

On June 14, 1996, the company initiated

step one (coaching session) with Nicosia.

On June 24, 1996, the company sent

Nicosia a letter of information (step

two). Nicosia responded to the letter of

information with the following letter

addressed to Sendziol and dated June 26,

1996:

I had advised you of my terminal illness

on January 12, 1996 by messenger service.

I have rights due to this illness under

the Americans with Disabilities Act.

Every time I have been off work due to

illness, my doctor has faxed you medical

documentation.

After another series of absences, Yellow

Freight issued a written warning (step

three) on July 15, 1996. Nicosia

responded with a letter stating that he

had been diagnosed with cancer.

The company then sent Nicosia an ADA

accommodation review form along with a

letter stating that Yellow Freight

understood that Nicosia was requesting an

accommodation under the ADA. The form

required that Nicosia list his condition,

describe the accommodation, if any, he

was requesting, and to identify his

treating physicians and medical

providers.

Despite receiving the form, Nicosia

failed to comply and fill it out.

Instead, he returned the uncompleted form

along with a letter. In the letter,

Nicosia stated that he was "requesting no

particular considerations at this time

other than the resources necessary to

perform my job and reasonable

accommodations necessary to monitor and

maintain my health status." He also

stated that he wanted "sick days, if

needed[,] without being penalized."

Finally, he stated that he was "working"

to perform the responsibilities and

duties of a dockworker.

After Nicosia missed 10 out of the next

19 calendar days, the company proceeded

to step four and suspended Nicosia for

one day on August 5, 1996. In response to

the suspension, Nicosia sent a letter

promising to "report to work every day to

fulfill my duties."

On October 15, 1996, Nicosia filed

charges with the EEOC claiming that

Yellow Freight had disciplined him

because of his disability and also that

it had denied him a reasonable

accommodation. As noted earlier, the

company terminated Nicosia on December

16, 1996, for excessive absenteeism./9

Following his termination, Nicosia filed

a second charge with the EEOC alleging

that he had requested an accommodation,

had been denied an accommodation, and

that he was illegally discharged. He also

alleged that Yellow Freight had

retaliated against him for filing his

October 15th EEOC charges.

On May 4, 1998, the EEOC filed suit

against Yellow Freight claiming that the

freight company had discriminated against

Nicosia in violation of the ADA and,

furthermore, that it had retaliated

against Nicosia for his filing of a

complaint with the Commission. As

mentioned before, Nicosia intervened in

the suit.

On August 12, 1999, the trial judge

granted summary judgment in favor of

Yellow Freight and concluded that: 1)

Nicosia was not a "qualified individual"

under the ADA; 2) regular attendance at

the job site was an "essential function

of Nicosia’s job"; 3) Nicosia’s request

for "sick days, if needed[,] without

being penalized" was not reasonable as a

matter of law; and 4) there was no causal

connection between Nicosia’s filing of an

EEOC complaint and his termination.

Nicosia, not the EEOC, appeals.

II. ANALYSIS

The ADA mandates that:

No covered entity shall discriminate

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,

employee compensation, job training, and

other terms, conditions, and privileges

of employment.

42 U.S.C. sec. 12112(a). The law also

requires that "[t]he plaintiff bears the

burden of proof on the issue of whether

he is a ’qualified individual’ under the

ADA." Nowak v. St. Rita High Sch., 142

F.3d 999, 1003 (7th Cir. 1998).

Furthermore, to establish a prima facie

case under the ADA, Nicosia must

demonstrate that he is "an individual

with a disability who, with or without

reasonable accommodation, can perform the

essential functions of the employment

position that such individual holds or

desires." 42 U.S.C. sec. 12111(8); see

Feldman v. American Mem’l Life Ins. Co.,

196 F.3d 783, 789-90 (7th Cir. 1999).

Thus, the critical question is whether an

"essential function" of Nicosia’s regular

full-time position with Yellow Freight

was regular attendance, and if so, did he

fulfill that "essential function." Also,

the fact that [Yellow Freight] had

infinite patience [with regard to

Nicosia’s poor attendance] does not

necessarily mean that every company must

put up with employees who do not come to

work. Nor must every company hire

replacements for absent employees and

call that a reasonable accommodation. The

issue before us is, when is enough,

enough?

Waggoner v. Olin Corp., 169 F.3d 481, 484

(7th Cir. 1999).

At the outset, let us be clear that our

court, and every circuit that has

addressed this issue, has held that

in most instances the ADA does not

protect persons who have erratic,

unexplained absences, even when those

absences are a result of a disability.

The fact is that in most cases,

attendance at the job site is a basic

requirement of most jobs. As the Tyndall

court put it:

[A]n evaluation of the quality of

Tyndall’s performance does not end our

inquiry. In addition to possessing the

skills necessary to perform the job in

question, an employee must be willing and

able to demonstrate these skills by

coming to work on a regular basis. Except

in the unusual case where an employee can

effectively perform all work-related

duties at home, an employee "who does not

come to work cannot perform any of his

job functions, essential or otherwise."

Id. at 484-85; see also Jovanovic v. In-

Sink-Erator, 201 F.3d 894, 899-90 (7th

Cir. 2000); Corder v. Lucent Techs.,

Inc., 162 F.3d 924, 928 (7th Cir. 1998);

Haschmann v. Time Warner Entm’t Co.,

L.P., 151 F.3d 591, 602 (7th Cir. 1998);

Nowak, 142 F.3d at 1003; accord Nesser v.

Trans World Airlines, Inc., 160 F.3d 442,

445 (8th Cir. 1998); Rogers v. Int’l

Marine Terminals, Inc., 87 F.3d 755, 759

(5th Cir. 1996); Lyons v. Legal Aid

Soc’y, 68 F.3d 1512, 1516 (2d Cir. 1995);

Tyndall v. Nat’l Educ. Ctrs., 31 F.3d

209, 213 (4th Cir. 1994); Carr v. Reno,

23 F.3d 525, 530 (D.C. Cir. 1994).

Specifically, this circuit has held that

We think it [is] fair to conclude that in

most instances the ADA does not protect

persons who have erratic, unexplained

absences, even when those absences are a

result of a disability. The fact is that

in most cases, attendance at the job site

is a basic requirement of most jobs.

Waggoner, 169 F.3d at 484. While Waggoner

made clear that "[w]e are not

establishing a hard-and-fast rule that no

absences from work need be tolerated," it

also made clear that no business is

"obligated to tolerate erratic,

unreliable attendance." Id. at 485

(citing Haschmann, 151 F.3d at 601).

Indeed,

the absence of employees is disruptive to

any work environment. However, it is not

the absence itself but rather the

excessive frequency of an employee’s

absences in relation to that employee’s

job responsibilities that may lead to a

finding that an employee is unable to

perform the duties of his job.

Haschmann, 151 F.3d at 602. In Jovanovic,

201 F.3d at 899-90, this court dealt with

a case similar to the one at hand:

Common sense dictates that regular

attendance is usually an essential

function in most every employment

setting; if one is not present, he is

usually unable to perform his job. This

is especially true in factory positions,

such as Jovanovic’s, where the work must

be done on the employer’s premises;

maintenance and production functions

cannot be performed if the employee is

not at work.

Nicosia’s employment with Yellow Freight

is similar to the factory worker in

Jovanovic in that his job as a forklift

driver "must be done on the employer’s

premises." Id. And, it is undisputed that

"the ability to maintain good attendance"

and the ability "to work on" available

shifts "plus any required overtime" were

listed as "minimum qualifications" in the

Yellow Freight material given to all

employees, including Nicosia, describing

the full-time dockworker position.

Furthermore, it is undisputed that

Nicosia was a full-time employee and not

a casual, temporary, part-time,

orsubstitute employee, nor did he ever

have the discretion or the right to

decline work when he chose to do so.

While Nicosia began his employment with

Yellow Freight as a part-time employee,

he was elevated to a full-time position

as the result of seniority, training, and

experience, and had an assigned,

definite, and specific work schedule.

A. Qualified Individual

Turning to the question of whether

Nicosia was fulfilling the essential

requirements of his job (regular job

attendance), the undisputed facts reveal

that he was not. As previously

discussed, the record reflects that

Nicosia was disciplined by Yellow Freight

(as were some 90 chronically absent

employees before him) well before he

informed Yellow Freight that he had been

diagnosed with AIDS-related cancer on

January 12, 1996. In fact, from 1991

through 1993, his employer warned Nicosia

on six separate occasions that his work

attendance record was not only

substandard but also unacceptable.

Furthermore, in 1994 and 1995, Nicosia

received four "coaching sessions" and

five letters (three letters of

information and two written warnings) re

garding his pattern of excessive

absenteeism. Because the company had a

policy of allowing workers to start at

step one if they completed nine months of

continuous employment without receiving a

disciplinary action, there were few

opportunities for Yellow Freight to

initiate steps four (suspension) and five

(termination) before 1996.

The unchallenged record in this case

reflects that Yellow Freight bent over

backwards to accommodate Nicosia in spite

of his long history of poor work

attendance. Nicosia was repeatedly warned

and reprimanded, and given numerous

opportunities to improve his work

attendance record. It was Nicosia’s

woeful attendance record that forced

Yellow Freight into the position that it

could no longer justify Nicosia’s

employment.

As we have stated in a number of

discrimination cases, "our role is not to

second guess the business decisions of a

company and inquire as to whether the

goals set by management demand ’too much’

from its employees, nor to make things

less difficult for those who come before

us, regardless of the law." Robin v. Espo

Eng’g Corp., 200 F.3d 1081, 1091 (7th

Cir. 2000) (citation and internal

quotations omitted). After reviewing the

record and considering Nicosia’s poor

attendance record, we are convinced that

Nicosia was unable to, and failed to,

satisfy his burden of establishing that

he is a "qualified individual" under the

ADA. We thus hold that Yellow Freight is

entitled to summary judgment.

B. Reasonable Accommodation

With respect to the question of

reasonable accommodation, Nicosia, in an

August 1, 1996 letter to Yellow Freight,

stated that he was requesting "no

particular considerations at this time

other than the resources necessary to

perform my job and reasonable

accommodations necessary to monitor and

maintain my health status, which would

include sick days, if needed[,] without

being penalized." Here again, the

employee has the burden of "produc[ing]

sufficient evidence to establish a

genuine issue of material fact as to his

ability to perform the essential

functions of the job with reasonable

accommodation." Bombard v. Fort Wayne

Newspapers, Inc., 92 F.3d 560, 564 (7th

Cir. 1996).

This court has held that similar

requests for unlimited "sick days, if

needed[,] without being penalized," are

not reasonable as a matter of law. See,

e.g., Waggoner, 169 F.3d at 485 (denying

a request for an accommodation for unlim

ited time off by a production employee

who was absent or tardy forty times in

her 20-month tenure). Additionally,

businesses are "not obligated to tolerate

erratic, unreliable attendance or to

provide an accommodation which would

impose an undue hardship on the

business." Id. As this court has stated,

[w]e do not dispute that a business needs

its employees to be in regular attendance

to function smoothly; the absence of

employees is disruptive to any work

environment. However, it is not the

absence itself but rather the excessive

frequency of an employee’s absences in

relation to that employee’s job

responsibilities that may lead to a

finding that an employee is unable to

perform the duties of his job.

Haschmann, 151 F.3d at 602.

It is interesting to note that Yellow

Freight, in an attempt to alleviate

Nicosia’s work attendance problems,

offered Nicosia an opportunity to take a

90-day leave of absence (which he refused

to accept), and followed-up by sending

him an ADA accommodation review form

(which he refused to fill out). Nicosia

responded to this attempt by sending a

certified letter, including the

uncompleted accommodation form, stating

that he had received the accommodation

form and was requesting, as stated

before, an open-ended, unlimited amount

of "sick days, if needed[,] without being

penalized." According to Nicosia, he

refused to complete the accommodation

form because he "was requesting . . .

sick time due to . . . illness, and

really didn’t see that on [the] form" and

thought the letter he sent in response

"would explain more."

In Jovanovic, 201 F.3d at 899 n.9, this

court noted that

the only imaginable accommodation would

be an open- ended schedule that would

allow Jovanovic to come and go as he

pleased. We would be hard-pressed to

imagine a manufacturing facility that

could operate effectively when its

employees are essentially permitted to

set their own work hours, and we thus

reject such a schedule as an unreasonable

accommodation under the circumstances of

this case. See Waggoner v. Olin Corp.,

169 F.3d 481, 485 (7th Cir. 1999)

(holding "as a matter of law" that

employee’s desire "to miss work whenever

she felt she needed to and apparently for

so long as she felt she needed to" was

not a reasonable accommodation for

someone employed as a production worker).

Additionally, this court recently noted

that a plaintiff

requested several accommodations,

including "an ’unpredictable’ amount of

time off from work should her symptoms so

demand." Then she took paid

administrative leave and also one year of

benefits under the company’s Sickness &

Accident Disability Plan. Finally, when

she cut short another independent medical

evaluation, she was fired. These facts,

it should come as no surprise, easily led

us to conclude that [plaintiff] was not a

qualified individual with a disability

under the ADA.

Waggoner, 169 F.3d at 484 (discussing

Corder, 162 F.3d at 924). In any event,

we are of the opinion that under the

established law of this circuit, Yellow

Freight’s efforts during the

"accommodation process" were sufficient,

especially given Nicosia’s unreasonable

request for unlimited time off.

The district court properly found that

Yellow Freight’s efforts at interacting

with Nicosia regarding a "reasonable

accommodation" were sufficient:

Sendziol in fact discussed with Nicosia

the possibility of a 90-day medical

leave, but Nicosia was unhappy with that

option. Eventually Yellow Freight sent to

Nicosia a 2-page Accommodation Review

Form, which sought medical information

and Nicosia’s perspective on an

appropriate accommodation. In response to

Yellow Freight’s accommodation inquiry,

Nicosia wrote that he wanted "no

particular considerations at this time

other than . . . sick days, if needed,

without being penalized."

This certainly is the beginning of the

reasonable accommodation process, and was

only met with unmanageable demands on the

part of Nicosia. We refuse to force

employers to the negotiating table in the

face of demands of this nature, and hold

that Yellow Freight fulfilled its burden

under the law, especially in light of the

fact that Nicosia had fashioned a poor

attendance record for himself well before

he was diagnosed with AIDS. For as we

have explained, "[a]n employer is not

obligated to provide an employee the

accommodation he requests or prefers, the

employer need only provide some

reasonable accommodation." Gile v. United

Airlines, Inc., 95 F.3d 492, 499 (7th

Cir. 1996).

To hold otherwise would unreasonably

expand the reaches of the ADA and ignore

the plaintiff’s burden to demonstrate

that he is a "qualified individual."

Although the plaintiff’s medical

condition is most unfortunate, we are

convinced that Nicosia does not have a

remedy under the ADA. As this court

stated in Waggoner, 169 F.3d at 484:

[r]ather than attempting to show that

[he] is a qualified individual, however,

[Nicosia] seems to want to turn the ADA

on its head. It is as if [he] thinks that

rather than ensuring that [he] be allowed

to work, the ADA requires [Yellow

Freight] to provide [him] with a job but

not require that [he] regularly perform

it. Rather, [Yellow Freight] must hire

another employee to do the job for [him]

while [he] remains a full-time employee.

The Act does not go so far. The ADA

protects an important, but finite,

universe of people.

C. Retaliation Claim

Nicosia next claims that Yellow Freight

retaliated against him for filing an EEOC

complaint in October of 1996. "A prima

facie case of retaliation is made when

the plaintiff shows that (1) he engaged

in statutorily protected expression; (2)

he suffered an adverse action by his

employer; and (3) there is a causal link

between the protected expression and the

adverse action." Rabinovitz v. Pena, 89

F.3d 482, 488 (7th Cir. 1996) (citing

Brenner v. Brown, 36 F.3d 18, 19 (7th

Cir. 1994)). Because Nicosia clearly

engaged in protected expression by filing

the EEOC complaint, only the last two

elements of the prima facie case are at

issue.

The district court concluded that the

evidence in the record failed to

demonstrate that Sendziol, the person who

discharged Nicosia, was aware of the fact

that Nicosia had filed an EEOC charge.

Additionally, the judge found that the

temporal link between the charges and the

firing was insufficient to establish

liability.

With respect to Sendziol’s knowledge

that Nicosia had filed an EEOC charge,

the only evidence in the record is

Nicosia’s own (and late) affidavit. In

his affidavit, Nicosia asserted that he

had passed out approximately 20 copies of

his EEOC complaint to his co-workers and

that he mailed copies of the complaint to

Sendziol and to the president of Yellow

Freight./10

The problem with Nicosia’s affidavit is

that it was filed late and that it

contradicted testimony he gave in an

earlier deposition. In his deposition,

Nicosia stated that he told John Peterson

about the charges and that Peterson told

Marilyn Brewer. Nicosia was then asked:

"Who, if anyone, else besides John

Peterson did you tell or inform that you

had filed an EEOC charge with [sic]

Yellow Freight?" In response to the

question, Nicosia answered that he

thought he had also told Jeff Kuchan and

George Hagle. Nicosia never mentioned

Sendziol.

"As a general rule, the law of this

circuit does not permit a party to create

an issue of fact by submitting an

affidavit whose conclusions contradict

prior deposition or other sworn

testimony." Buckner v. Sam’s Club, Inc.,

75 F.3d 290, 292 (7th Cir. 1996). The

affidavit, as applied to Sendziol, falls

squarely within our rule.

The question at the deposition clearly

invited Nicosia to list anyone else whom

he had told about the EEOC complaint.

Furthermore, he obviously understood that

this was his chance to offer additional

names because he named Peterson and

Brewer. The fact that he did not include

Sendziol as a person whom he had informed

about his EEOC charge makes his

affidavit, in which he claims he informed

Sendziol of the EEOC charge,

contradictory. Therefore, the district

court had no obligation to consider it.

Id. Finally, we agree with the district

court that the temporal proximity of

Nicosia’s termination with his filing of

an EEOC charge (some six weeks) is

insufficient to establish retaliation.

See, e.g., Foster v. Arthur Andersen,

LLP, 168 F.3d 1029, 1034 (7th Cir. 1999);

Bermudez v. TRC Holding, Inc., 138 F.3d

1176, 1179 (7th Cir. 1998); Hughes v.

Derwinski, 967 F.2d 11687, 1174-75 (7th

Cir. 1992).

The decision of the district court is

AFFIRMED.

FOOTNOTES

/1 Nicosia intervened in the district court action

as a party plaintiff pursuant to Fed. R. Civ. P.

24(a).

/2 Yellow Freight used its casual workers if the

workload on a particular day required additional

workers or if its regular workers were sick, on

vacation, or on disability leave.

/3 As a full-time dockworker, Nicosia received

several benefits, including vacation and sick

leave, as well as pension payments.

/4 The dissent suggests that we have accepted Yellow

Freight’s word that such a policy existed and for

the content of that policy. But we do not see the

content of the attendance policy as in dispute.

Indeed, it is interesting to note that the dis-

sent itself recites the same five-step progres-

sive discipline policy that we outline here.

/5 Employees were able to start at step one if they

were able to complete nine months of continuous

work without a disciplinary step being taken.

/6 The dissent suggests that because the record

contains no detailed information about the rea-

sons why particular employees’ absences were

deemed excessive that no inferences can be drawn

from the fact that the policy was used. In

support the dissent hypothesizes that if Yellow

Freight had disciplined only members of one

racial group and forgiven all others that it

could not say it was enforcing its policy in an

even-handed manner. Strangely though the record

contains no evidence that Yellow Freight system-

atically applied the attendance policy in a

discriminatory fashion--and Nicosia does not make

such a claim. In any event, the fact that Yellow

Freight did terminate over 90 employees pursuant

to the attendance policy is evidence that the

policy did exist and that Yellow Freight did take

attendance problems seriously.

/7 The number of days that Nicosia was scheduled to

work and the number of his absences do not

include vacation days, jury duty, the five annual

paid sick days that he is afforded under the

collective bargaining agreement, nor his count-

less worker’s compensation absences. However, for

the record, Nicosia accumulated a total of 294

worker’s compensation days from 1991 through

1996.

/8 For the record, his work attendance did not

improve in 1995; out of the 181 scheduled work

days, he called in sick fifty times, left work

early three times, and had one unexcused absence.

/9 While Nicosia was terminated on December 16, 1996

for excessive absenteeism, he was ordered rein-

stated by an arbitrator (without back pay or

benefits), and was a Yellow Freight employee at

the time this case was orally argued.

/10 Nicosia attached copies of the letter to the

president, the U.S. Postal Service certified mail

receipt, and the fax confirmation sheet to this

affidavit.

DIANE P. WOOD, Circuit Judge, with whom RIPPLE,

ROVNER, and WILLIAMS, Circuit Judges, join, dissent-

ing in part and concurring in part. It is

curious that the full court decided to hear this

case en banc, given the fact that there is no

significant disagreement among us on the govern-

ing legal principles. Here, this court has been

asked to review a district court’s decision to

grant summary judgment for an employer, Yellow

Freight System, Inc., in a case brought under the

Americans with Disabilities Act, 42 U.S.C. sec.

12101 et seq. Normally in such a case, when a

panel studies a record and concludes either that

it does or it does not present genuine issues of

material fact warranting trial, that is the end

of the matter unless the full court is concerned

about the broader legal principles the case

involves. Here we have not followed that prac-

tice. As I hope to make clear in this dissent, I

have little quarrel with the broad outline of the

legal rules governing the ADA that the majority

has recited. Its presentation of the facts in

this record, however, contains serious omissions.

When the full record is taken into account, I

respectfully submit that it demonstrates that the

plaintiff-intervenor, Michael Nicosia, was enti-

tled to a trial on his ADA discrimination claim

and his ADA accommodation claim. I agree with the

majority that he failed to present enough to

survive summary judgment on the retaliation

claim, and I thus concur in that part of its

judgment.

I

At the risk of repetition, I believe it is

necessary to re-state the facts that were before

the district court for purposes of the summary

judgment motion, so that the full context of

Nicosia’s claim can be appreciated. As the major-

ity points out, Nicosia was a dockworker with the

misfortune of first discovering that he was HIV

positive, and later developing symptoms of full-

blown AIDS. His employer Yellow Freight fired him

at the end of 1996, after a series of exchanges

about his serious problems with absenteeism and

the accommodations he might need because of his

medical condition. Our task at this time is to

decide whether, taking the facts in the light

most favorable to Nicosia, a trier of fact could

ultimately find that Yellow Freight was behaving

in a discriminatory manner when it terminated

Nicosia or that it failed to comply with its ADA-

based duty to accommodate him. Given the major-

ity’s opinion, it is also important to stress

that Nicosia does not have the burden of showing

that the trier of fact inevitably would find for

him. Neither he nor most summary judgment oppo-

nents could sustain such a burden. I thus do not

disagree with the majority that under one permis-

sible view of the facts the trier of fact might

also find for Yellow Freight. My only point here

is that there are genuinely disputed material

facts that the majority has overlooked or assumed

away.

As we know, Nicosia began his job as a dock-

worker for Yellow Freight in August 1990, in the

Chicago Ridge Terminal, in the "casual worker"

category. Yellow Freight used its casual workers

in a variety of circumstances: when the workload

was heavy, or when its regular workers were sick,

on vacation, or on disability leave. The need for

casuals varied widely from day to day--one day

none might be necessary, and the next the company

might need 40. In February 1991, he became a

full-time dockworker, working under the supervi-

sion of Chicago Ridge Terminal Operations Manager

Gerald Sendziol. Sendziol was responsible for

making decisions at the terminal with respect to

leaves of absence, and he also had the authority

to fire unsatisfactory employees.

My first quarrel with the majority’s portrayal

of the facts concerns Yellow Freight’s alleged

attendance policy. Not only does the majority

assume that such a policy existed, but it also

accepts Yellow Freight’s word for what the con-

tent of that policy was. The facts underlying

those assumptions are, however, disputed in this

particular case. Before proceeding with a sub-

stantive analysis of Nicosia’s case, therefore,

we must look at the facts in the record that

pertain to exactly what policy Yellow Freight had

with respect to absences for its regular dock-

workers. We must consider those facts, as all

facts on summary judgment, in the light most

favorable to Nicosia, the non-moving party.

Krocka v. City of Chicago, 203 F.3d 507, 513 (7th

Cir. 2000).

Here is what the summary judgment evidence

showed. The collective bargaining agreement

("CBA") between Yellow Freight and its regular

employees provided that employees would be enti-

tled to five paid sick days per year. In addi-

tion, the CBA provided for family and medical

leave of up to a total of twelve weeks on unpaid

leave for employees who had worked for the compa-

ny a minimum of 12 months and 1250 hours during

the prior 12-month period. The CBA also allowed

employees to apply for leaves of absence that

could last up to 90 days, with the possibility of

extensions "for like periods." The CBA set no

minimum number of days for a leave of absence,

although the record indicated that Sendziol told

Nicosia that there was a 90-day minimum. When an

employee was out on a leave of absence, Yellow

Freight filled in using both its casual workers

and the bottom 10 percent of its seniority list.

Thus, construing the CBA favorably to Nicosia,

it was easily possible for someone to be absent

well in excess of the five days of paid sick

leave. Furthermore, Nicosia presented additional

testimony that the majority has ignored that

showed that Yellow Freight’s approach to atten-

dance was far from strict. While, as the majority

points out, Yellow Freight had a five-step disci-

plinary process, it had no objective written

attendance policy that indicated what number or

constellation of absences would lead to particu-

lar types of discipline. At the Chicago Ridge

Terminal, it was entirely within Sendziol’s

discretion to determine when a particular employ-

ee’s absences became "excessive" and how rapidly

to proceed through the disciplinary process. The

record (including Nicosia’s own sporadic atten-

dance and disciplinary history prior to 1996,

discussed infra) forecloses concluding at this

stage that Sendziol exercised his discretion

according to any particular objective criteria,

such as, for example, whether the employee had

multiple intermittent absences or an individual

longer-term absence. As his own deposition testi-

mony indicates, Sendziol decided how to handle

individual employees’ absences on an essentially

ad hoc basis. After explaining that "[e]ach case

is by itself," he gave as an example a man with

a broken leg, who might need far more than the

five days mentioned in the CBA-- as he put it,

such a worker would need to be "off for whatever

length of time." Another example he gave was of

a man with pneumonia, for whom he indicated that

a three-week leave would be acceptable. Sendziol

decided whether absences were excessive and what

if any disciplinary action was appropriate based

on his assessment of the nature of the particular

employee’s problem.

Yellow Freight used its five-step progressive

discipline system to deal with employees whose

absences, according to these highly subjective

criteria, were excessive. As the majority notes,

the steps were (1) a coaching session, (2) a

letter of information, (3) a written warning, (4)

suspension, and finally (5) termination. Employ-

ees were able to start afresh with these five

steps, however, if they were able to complete

nine months’ work since the last discipline

without a new measure being taken. The record

indicated that since 1992, over 90 employees had

been terminated for excessive absenteeism, but it

contained no information about why particular

employees’ absences had been deemed excessive.

This lack of detail makes it impossible to draw

any inferences from the fact that the policy was

used. If, to take a purely hypothetical example,

Yellow Freight had terminated only members of one

racial group for absenteeism, and it had forgiven

similar attendance records in other employees,

its actions would obviously not suggest that it

was enforcing its attendance policy in an even-

handed manner. The same is true here: while it

may have terminated over 90 employees over the

years, we have no way of knowing whether those

terminations were without regard to the type of

disability that is now protected by the ADA. Only

if the record showed that the terminations were

nondiscriminatory would this be useful evidence.

Nicosia had a poor attendance record, but his

problems did not prompt Yellow Freight to move

beyond step 3 of its progressive disciplinary

policy until after he informed Sendziol that he

was ill. The majority comments, ante at 10, that

Yellow Freight’s policy of erasing earlier disci-

plinary actions if an employee completed nine

months of continuous action without a new infrac-

tion meant that it had "few opportunities" to

initiate steps 4 and 5 before 1996. That may be

one way of looking at this evidence, but it would

be equally possible for a trier of fact to

consider that it meant that Nicosia managed

somehow to comply with Yellow Freight’s rules for

significant periods of time, and thus to re-start

the clock for disciplinary purposes. In either

case, no one disputes that Nicosia was out for

substantial periods of time every year that he

was employed by Yellow Freight. These absences

were a mix of sick days, workers’ compensation

leave, personal days, paid vacation, unexcused

absences, and "Company Convenience" days. ("Com-

pany Convenience" days were offered to employees

when there was not enough freight on a particular

shift to keep all employees busy.) Before he

informed the company of his illness, Nicosia

never received more than a written warning (step

3). Sendziol’s tolerance for his behavior did not

begin to change until November of 1995, when

Nicosia called Sendziol and told him that he had

a medical problem and needed some time off.

Sendziol told him that he was ineligible for

family and medical leave (for reasons that are

unclear), but that he could take a 90-day (un-

paid) leave of absence. Nicosia did not want to

be gone that long, so he decided just to call in

sick for two weeks.

In December 1995, Nicosia was provisionally

diagnosed as HIV positive; the diagnosis was

confirmed the next month, when he was also diag-

nosed with Kaposi’s sarcoma, which is a cancer

associated with AIDS. On January 12, 1996, Nico-

sia sent a letter to Sendziol. The letter in-

formed Sendziol that Nicosia’s health was "im-

pacted by the Human Immunodeficiency Virus."

Sendziol did not discuss the letter with Nicosia,

but he apparently talked about it with everyone

else at the terminal. The day he received the

letter, the news of Nicosia’s illness spread like

wildfire. Evidently embarrassed or concerned

about prejudice, Nicosia started a counter-rumor

that he was suffering from leukemia. Yellow

Freight does not contest the fact that he was

indeed HIV positive and suffering from AIDS-

related diseases.

Initially, Nicosia did not provide Yellow

Freight with medical documentation of his condi-

tion or information about his treatment or poten-

tial limitations. During the first three months

of 1996, however, he was frequently absent from

work because of his illness. (Indeed, his absenc-

es during the prior few years may also have been

related to his medical condition; although he was

not formally diagnosed with HIV and AIDS until

1995, his doctors stated that his symptoms were

such that he may have been suffering from the

disease for years preceding his diagnosis.)

Between January 1, 1996, and June 12, 1996,

Nicosia was absent more than half the time--all

or part of 90 days, not including his five days’

paid sick leave. He provided doctors’ notes

excusing these absences, although the notes did

not provide detailed descriptions of his condi-

tion, needs, or prognosis. Yellow Freight never

informed him that the notes were inadequate.

What Yellow Freight did do, equipped with the

knowledge that it had an HIV positive employee on

its hands, was to begin taking Nicosia through

the progressive disciplinary regime with a coach-

ing session (step 1) on June 14, 1996. Over the

following 10 calendar days, he was absent for all

or part of three days. He received a letter of

information (step 2) on June 24. On June 26,

Nicosia responded with the following letter to

Sendziol:

I had advised you of my terminal illness on

January 12, 1996 by messenger service. I have

rights due to this illness under the Americans

with Disabilities Act. Every time I have been off

work due to this illness, my doctor has faxed you

medical documentation.

In the three weeks following June 24, Nicosia was

absent ten more days. Yellow Freight promptly

responded with a written warning (step 3) on July

15. Nicosia replied with a letter indicating that

he had been diagnosed with cancer.

Nicosia’s letter prompted the human resources

department to think about the accommodations

requirement of the ADA. It gave an ADA accommoda-

tion review form to Sendziol, which he forwarded

to Nicosia on July 26, along with a letter

indicating that Yellow Freight understood Nico-

sia’s mention of his rights under the ADA to be

a request for accommodation. The form asked

Nicosia to indicate his condition and whether he

was requesting an accommodation, to describe the

accommodation he wanted, and to identify his

physicians and medical providers. The majority

correctly notes that Nicosia did not fill out the

form itself. But it implies that Nicosia stone-

walled the company, which leaves the wrong im-

pression about his response. Nicosia explained

that he was concerned about the fact that the

form did not list time off as an accommodation,

yet that was what he thought he needed. Instead

of filling out the actual piece of paper, he

thought it best under the circumstances to return

the form along with a letter to Yellow Freight

that basically answered the questions the form

had posed. In the letter, he said that he was

"requesting no particular considerations at this

time other than the resources necessary to per-

form my job and reasonable accommodations neces-

sary to monitor and maintain my health status."

(Emphasis added.) He also explained that the

accommodation he wanted "would include sick days,

if needed[,] without being penalized." Last, he

stated in the letter that he was "otherwise

healthy" and that he was able "to continue work-

ing to fulfill the responsibilities and perform

the duties" of a dockworker. He offered in the

letter to have his physician prepare a report

concerning his physical condition if Yellow

Freight so desired.

Out of the 19 calendar days following the July

15 written warning, Nicosia was absent 10. The

company accordingly proceeded to step 4 and on

August 5, 1996, it suspended him for one day.

Nicosia then sent a letter promising to "report

to work every day to fulfill my duties." At the

same time, his union filed a grievance challeng-

ing the suspension. On October 15, Nicosia filed

his charges with the EEOC claiming that Yellow

Freight had disciplined and suspended him because

of his disability and that it had denied him a

reasonable accommodation. He missed work five

more times between November 8 and December 15. On

December 16, 1996, Nicosia was terminated for

excessive absenteeism, and he filed another union

grievance challenging that action. Eventually the

matter went to arbitration and the arbitrator

ordered Nicosia reinstated in August 1997, albeit

with no back pay and no benefits. Nicosia re-

turned to work in September of that year, and as

of the time this case was briefed he was still a

Yellow Freight employee. After his termination,

Nicosia filed a second charge of discrimination

with the EEOC, in which he alleged that he had

requested an accommodation, he had been denied

accommodation, and he was then discharged.

II

A. Discrimination

Since the importance of attendance lies at the

heart of this case, I begin with some general

comments about that question. I agree entirely

with the majority that, as it points out ante at

8-9, regular attendance at the job is a legiti-

mate requirement for many positions. On the other

hand, as it concedes, this rule applies "in most

instances," Waggoner v. Olin Corp., 169 F.3d 481,

484 (7th Cir. 1999), or "usually," Jovanovic v.

In-Sink-Erator, 201 F.3d 894, 899-900 (7th Cir.

2000). The majority does not rely upon a single

case for the proposition that attendance is

always, invariably, as a matter of law, an essen-

tial job function. Even more importantly, I do

not understand it to be adopting such a rigid and

indefensible rule in the present case.

Each job carries with it different requirements,

and in certain out-of-the-ordinary situations

regular daily attendance may not be one of them.

For example, while regular attendance may be

crucial for a position as a high school teacher,

see Nowak v. St. Rita High School, 142 F.3d 999

(7th Cir. 1998), it would not necessarily be

important for someone who worked as a substitute

teacher. In exchange for the certain salary and

benefits regular teachers enjoy, substitutes may

have the flexibility of declining work when they

choose to do so. The same might be true of a

person whose job involved piecework to be done at

the home, who needed to report to the central

jobsite only to drop off completed work and to

pick up new projects. People who work for tempo-

rary help agencies may also not be obligated to

be available at every call; their only "penalty"

would be the lost income attributable to the

declined work. The question before us is whether

Nicosia has raised a genuine issue of material

fact on the question whether Yellow Freight’s

regular dockworker job was (a) one of the ordi-

nary jobs for which the company insisted on

regular attendance, or (b) one of the unusual

jobs for which regular attendance was not a sine

qua non.

In my opinion, Nicosia has succeeded in doing

so, both with respect to the existence of a

defined attendance policy at Yellow Freight and

with respect to the content of any such policy.

It is worth remembering that this court has

recognized in other cases that the existence or

content of a policy is sometimes a contestable

issue. See Piraino v. International Orientation

Resources, Inc., 84 F.3d 270 (7th Cir. 1996), and

Sarsha v. Sears, Roebuck & Co., 3 F.3d 1035 (7th

Cir. 1993). In Piraino, the employer argued that

it had terminated the employee in accordance with

an alleged policy governing pregnancy leave; we

found that the question whether such a policy

existed was disputed and could not be decided on

summary judgment. 84 F.3d at 275. In Sarsha,

where the employer asserted that it had fired its

employee pursuant to a company policy against

employee dating, not because of his age or gen-

der, we similarly found that existence of such a

policy and its content could not be assumed on

summary judgment. In this case, just as in Sarsha

and Piraino, "[w]hen the existence of a uniform

policy or practice is in doubt, it cannot serve

as a reason for discharging [the employee]." 3

F.3d at 1040.

The majority is quite correct to note that

Yellow Freight has pointed to evidence that, if

believed by the jury and given the weight Yellow

Freight thinks it deserves, would show that

attendance was indeed a requirement of the full-

time dockworker job and thus that failure to

maintain regular attendance was a legitimate,

nondiscriminatory reason for employee termina-

tions. But Nicosia has evidence on the other

side. He showed that the numbers of workers on

the dock varied greatly from day to day; that

workers were basically fungible with one another,

so that it did not matter who was doing the

loading and unloading on any particular day; that

Sendziol did not follow any fixed policy other

than to treat each case individually, giving very

lengthy leaves to people he found deserving; and

that his poor attendance was never an insurmount-

able problem until the company found out he was

HIV positive.

If the trier of fact believed Nicosia’s evi-

dence, it would find that Nicosia’s attendance

did not violate Yellow Freight’s actual policies.

Contrary to the majority’s view, such a holding

would be consistent with established precedent in

this circuit, as well as in the others. In

addition, the timing of Yellow Freight’s sudden

decision to escalate its response to Nicosia’s

problematic attendance from step 3 (where it had

always stopped before) to steps 4 and 5, at the

very moment when Nicosia revealed his illness--an

illness that the Supreme Court has recognized is

entitled to protection under the ADA, see Bragdon

v. Abbott, 524 U.S. 624, 632-42 (1998)--is suspi-

cious enough to indicate that Yellow Freight’s

stated reason for terminating him was pretextual.

I would therefore hold that Nicosia is entitled

to go forward with his basic claim of discrimina-

tion in violation of the ADA.

B. Accommodation

There also remains a question of fact regarding

who-- Yellow Freight or Nicosia--was responsible

for the breakdown in the accommodation process

required by the ADA. Both the employer and the

employee are responsible for making the accommo-

dation process work. The employee has the affir-

mative obligation to let the employer know that

he is disabled and that he needs an accommoda-

tion. Beck v. University of Wisconsin Bd. of

Regents, 75 F.3d 1130, 1134 (7th Cir. 1996); see

also 42 U.S.C. sec. 12112(b)(5)(A) (stating that

"the term ’discriminate’ includes" "not making

reasonable accommodations to the known physical

or mental limitations of an otherwise qualified

individual with a disability") (emphasis added).

Once the employee provides this information, the

employer has a responsibility to start the inter-

active process. Bombard v. Fort Wayne Newspapers,

Inc., 92 F.3d 560, 563 (7th Cir. 1996); see also

29 C.F.R. sec. 1630.2(o)(3) (1999) ("To determine

the appropriate reasonable accommodation it may

be necessary for the covered entity to initiate

an informal, interactive process with the quali-

fied individual with a disability in need of the

accommodation.").

Thus, neither the employer nor the employee can

sit back and wait for the interactive process to

happen. A possible interpretation of the record

in this case is that Yellow Freight believes that

the ADA’s interactive process requires it to make

only one step toward the employee, and that if

the employee does not respond immediately or

"correctly," then the company’s responsibility

ends. If that is its view, however, it is wrong.

The interactive process envisioned by our cases

and the EEOC (in its guidance provided appended

to the ADA regulations, see 29 C.F.R. Pt. 1630,

App. (1999)) requires the employer to try harder

than that. It is not allowed to make one move and

then call it quits. See, e.g., Hendricks-Robinson

v. Excel Corp., 154 F.3d 685, 693 (7th Cir. 1998)

("The ’reasonable accommodation’ element of the

Act imposes a duty upon employers to engage in a

flexible, interactive process with the disabled

employee needing accommodation so that, together,

they might identify the employee’s precise limi-

tations and discuss accommodations which might

enable the employee to continue working. . . . An

employer must make a reasonable effort to explore

the accommodation possibilities with the employ-

ee.") (citations omitted); Bultemeyer v. Fort

Wayne Community Schs., 100 F.3d 1281, 1285 (7th

Cir. 1996) ("The employer has to meet the employ-

ee half-way, and if it appears that the employee

may need an accommodation but doesn’t know how to

ask for it, the employer should do what it can to

help.").

This record presents a genuine issue of materi-

al fact on the question of who was responsible

for the breakdown in the interactive process.

Neither party took a model approach to trying to

figure out what reasonable accommodation(s) might

have been possible. One obvious suggestion Yellow

Freight never made was to return Nicosia to the

status of "casual" worker, which everyone seems

to concede would have both permitted Nicosia the

attendance flexibility his illness required,

while giving Yellow Freight the reliability it

needed from its regular workers. I need not

decide whether this would have been a proper

accommodation or not, but the silence on this and

other possible arrangements is deafening. Nicosia

explained his problems to Yellow Freight in his

letter and he told them what he needed; Yellow

Freight charged ahead with its disciplinary

process without ever thinking about what might

have served both parties’ interests in a manner

acceptable to the ADA. On this record, once again

it is the trier of fact who should have been

permitted to decide who dropped the ball. See

Baert v. Euclid Beverage, Ltd., 149 F.3d 626, 634

(7th Cir. 1998) (holding summary judgment inap-

propriate where there was a genuine issue of

material fact as to who was responsible for the

breakdown in the interactive process); Dalton v.

Subaru-Isuzu Automotive, Inc., 141 F.3d 667, 677

(7th Cir. 1998) (same).

III

Because genuine issues of material fact are

present in this record, I would Reverse the

district court’s summary judgment for Yellow

Freight on the ADA discrimination claim and the

ADA accommodation claim, and I would Remand those

two parts of the case for further proceedings. To

that extent, I respectfully dissent.