Michael Dunderdale v. United Airlines, Inc.

In the

United States Court of Appeals

For the Seventh Circuit

No. 14-2911

MICHAEL DUNDERDALE,

Plaintiff-Appellant,

v.

U NITED AIRLINES , INC.,

Defendant-Appellee.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 12 C 4440 — Edmond E. Chang, Judge.

ARGUED S EPTEMBER 30, 2015 — DECIDED DECEMBER 03, 2015

Before BAUER, RIPPLE, and ROVNER, Circuit Judges.

BAUER, Circuit Judge. Plaintiff-appellant, Michael Dunder-

dale (“Dunderdale”), filed a discrimination action against

defendant-appellee, United Airlines, Inc. (“United”), under the

Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.,

(“ADA”), for failure to accommodate. The district court

granted summary judgment in favor of United, and Dunder-

dale appealed. For the reasons that follow, we affirm the

district court’s ruling.

2 No. 14-2911

I. BACKGROUND

Dunderdale began working for United in April 1997 as a

ramp serviceman at O’Hare International Airport. The Collec-

tive Bargaining Agreement (“CBA”) between United and the

International Association of Machinists and Aerospace

Workers (the “Union”) governs the terms and conditions of

employment as a United ramp serviceman. Ramp servicemen

bid for placement to different work areas throughout United.

Once ramp servicemen bid on their desired work areas, the

CBA requires United to place them according to their seniority.

United has a written job description that applies to all ramp

servicemen, regardless of their work area. The “Job Functions”

of a ramp serviceman are:

Load[s], stows, unloads mail, cargo and baggage from

conveyor belts, carts; trucks and aircraft. Cleans; ser-

vices aircraft interiors and removes, assembles and

installs passenger cabin supplies. Loads unloads buffet

and food supplies. Performs aircraft service duties

including cleaning win dsh ields, engine oil

checks/servicing and deicing functions. Receives posi-

tions and dispatches aircraft. Operates and cleans

various mechanical machines and ramp equipment

related to aircraft services such as radios, aircraft air

conditioners, cargo and belt loaders, fork lifts, trucks,

tractors, vans and related automotive equipment.

Operates computers and printers to enter, access and

manage aircraft load manifest data and instructions,

color-coded baggage/transfer systems, aircraft fueling

or other service information.

No. 14-2911 3

The written job description also states that a ramp service-

man’s duties involve “pulling, pushing of carts and containers;

performs duties in walking, standing, bending, kneeling and

stooping positions; lifts freight, baggage and other heavy

items - up to 70 pounds.”

In December 2002, Dunderdale injured his back at work.

Due to his injuries, he did not return to work until February

2004. At that time he did not have any work restrictions, but

two weeks after he returned, he injured his back again. As a

result, Dunderdale went on leave until June 2005. When he

returned, he had several permanent work restrictions. He

could not lift more than 30 pounds, he was unable to drive

United’s vehicles, and he could not bend, stoop, or kneel.

Because of Dunderdale’s work restrictions, United assigned

him to the Matrix position. At that time, the Matrix position

was part of the Product Sort work area. It involves sitting at a

computer next to a conveyor belt, scanning the tags on luggage

coming down the conveyor belt, and then processing the scans

on the computer. In 2005, United’s policy was that all ramp

servicemen with permanent work restrictions could bid for

positions in the Product Sort work area, and then United

would assign them to the Matrix position.

In 2007, United decided to separate the Matrix position

from the Product Sort work area. As a result, ramp servicemen

had to specifically bid for the Matrix position. But, the position

was only available to ramp servicemen with permanent work

restrictions.

In 2010, United decided to change the bidding policy

regarding the Matrix position. Starting in May 2011, all ramp

4 No. 14-2911

servicemen could bid for the Matrix position, not just those

with permanent work restrictions. Debra DiSantis (“DiSantis”),

United’s Manager of Performance and Labor, recommended

the change. DiSantis stated that the “overarching” reason for

the change was to “improve the [bidding] system” by having

the Matrix position match the language of the CBA regarding

work area placement based on seniority, thereby creating

“clear, concise guidelines and directions on the process and

policy [of the bidding system].” Although no one had filed a

formal grievance prior to this decision, DiSantis was notified

by the Union that other ramp servicemen had questioned their

inability to bid for the Matrix position.

On April 21, 2011, Sheila Siggal (“Siggal”), United’s Super-

visor for Performance and Labor Relations, met with Dunder-

dale. Siggal informed Dunderdale that he no longer had

sufficient seniority to retain his position at the Matrix since all

ramp servicemen could bid on the position beginning May

2011. As a result, Siggal stated that effective May 2011, United

would place Dunderdale on Extended Illness Status (“EIS”).

While on EIS, Dunderdale would continue to receive various

benefits as a United employee, such as health insurance and

access to United’s intranet, Skynet, for up to three years.

United employees can use Skynet to search and apply for open

positions at United.

During the April 21, 2011, meeting, Dunderdale told Siggal

that he believed he was able to perform the positions of the

Auditor, Bulls-eye, and the Manpower Office. All three are no-

bid positions, which means that they are not open for bidding,

nor are they placed based on seniority. However, Siggal

No. 14-2911 5

informed Dunderdale that there were no open positions for

the Auditor, Bulls-eye, or the Manpower Office.

In May 2011, Dunderdale went on EIS. While on EIS, he did

not apply for any other position at United. On August 24, 2011,

and on November 22, 2011, United sent Dunderdale letters

inviting him to participate in Reasonable Accommodation

Process (“RAP”) sessions. Dunderdale failed to respond to

both letters and did not participate in either proposed RAP

session.

In October 2011, Dunderdale met with a human resources

manager at United because he believed that United had

discriminated against him. During this meeting, Dunderdale

requested appointment to a no-bid position, but the request

was denied.

On June 7, 2012, Dunderdale filed suit against United for

discrimination and retaliation under the ADA. On April 15,

2013, Dunderdale had a RAP session with representatives of

United and the Union. At this meeting, Dunderdale again

requested appointment to a no-bid position, but was again

denied. Apart from these two requests, Dunderdale did not

seek any other accommodation from United while he was on

EIS.

On September 26, 2013, United informed Dunderdale that

he had sufficient seniority to regain the Matrix position.

Dunderdale returned to work in October 2013 in the Matrix

position. On October 18, 2013, United moved for summary

judgment on Dunderdale’s discrimination and retaliation

claims. In response, Dunderdale waived his retaliation claim

and instead focused solely on whether United discriminated

6 No. 14-2911

against him by failing to reasonably accommodate his disabil-

ity. On August 4, 2014, the district court granted summary

judgment in favor of United. Dunderdale appealed.

II. DISCUSSION

The issue before this court is whether it was appropriate to

grant summary judgment in favor of United on Dunderdale’s

ADA claim for failure to accommodate. Summary judgment is

appropriate if there is no genuine dispute as to any material

fact, and the moving party is entitled to judgment as a matter

of law. Fed. R. Civ. P. 56(a). We review the district court’s

ruling de novo, and examine the record in the light most

favorable to the non-moving party. Kotwica v. Rose Packing Co.,

Inc., 637 F.3d 744, 747 (7th Cir. 2011) (citations omitted).

In order to establish a prima facie ADA claim for failure to

accommodate, a plaintiff must establish that: (1) the plaintiff is

a qualified individual with a disability; (2) the employer was

aware of the disability; and (3) the employer failed to reason-

ably accommodate the plaintiff’s disability. James v. Hyatt

Regency Chicago, 707 F.3d 775, 782 (7th Cir. 2013) (citation and

quotation omitted); see also 42. U.S.C. § 12112(b)(5)(A).

United admits Dunderdale was disabled and that it was

aware of his disability, so the two issues before the court are:

was Dunderdale a “qualified individual” with a disability, and

did United fail to reasonably accommodate his disability.

A. Whether Dunderdale was a Qualified Individual with

a Disability

The ADA defines a “qualified individual” as “an individual

who, with or without reasonable accommodation, can perform

No. 14-2911 7

the essent ial functions of the employment position that such

individual holds or desires.” 42 U.S.C. § 12111(8) (emphasis

added). To determine what constitutes an essential function of

the position, courts consider “the employer’s judgment,” as

well as a “written job description” of the position. Id. Also, the

United States Equal Employment Opportunity Commission

(“EEOC”) regulations provide that the essential functions are

the “fundamental job duties” of a position, rather than the

position’s “marginal functions,” and that courts should

examine several factors to determine essential functions.1

29 C.F.R. § 1630.2(n)(1)-(3).

In this case, lifting more than 70 pounds was an essential

function of the ramp serviceman position. United’s written job

description for ramp servicemen expressly states the lifting

requirement, as well as illustrates how heavy lifting is a

fundamental duty of the position. For example, it lists that

ramp servicemen are expected to load and unload mail, cargo,

baggage, freight, cabin supplies, buffet supplies, and food

supplies, all of which may weigh up to 70 pounds. Thus,

Dunderdale’s inability to lift more than 30 pounds prevented

him from performing the essential functions of the ramp

serviceman position without a reasonable accommodation.

1

Specifically, the EEOC regulations list: (i) the employer’s judgment;

(ii) written job descriptions; (iii) amount of time spent per for ming the

function; (iv) consequences of not requiring the employee to perform the

function; (v) terms of a collective bargaining agreement; (vi) work

experience of pr ior employees in the position; and (vii) current work

experience of employees in similar jobs. 29 C.F.R. § 1630.2(n)(3).

8 No. 14-2911

However, Dunderdale could perform the essential func-

tions of the ramp serviceman position with a reasonable

accommodation. After Dunderdale was injured in 2005, United

transferred him to the Matrix position. He successfully held

this position for over five years and only lost it due to the

change in United’s bidding policy, rather than any inability to

perform the position’s tasks. Thus, Dunderdale was able to

perform the essential functions of a ramp serviceman with a

reasonable accommodation. See Mobley v. Allstate Ins. Co., 531

F.3d 539, 545 (7th Cir. 2008) (plaintiff could perform essential

functions with a reasonable accommodation because she

successfully met her performance standards when given an

accommodation).

As a result, Dunderdale established he was a qualified

individual with a disability. The key issue, then, is whether

United failed to reasonably accommodate his disability.

B. Whether United Failed to Reasonably Accommodate

Dunderdale’s Disability

Dunderdale argues that United failed to reasonably

accommodate his disability because: (1) United did not allow

him to remain in the Matrix position; and (2) United did not

assign him to one of the no-bid positions for which he believed

he was qualified.

1. The Matrix Position

Dunderdale claims United accommodated his disability

from 2005 through 2011 by placing him in the Matrix position,

but ceased accommodating him in May 2011 when he was

removed from the position. We hold that United did not have

No. 14-2911 9

to maintain Dunderdale in the Matrix position after May 2011

because it would have violated United’s seniority system.

In US Airways, Inc. v. Barnett, the United States Supreme

Court held that it is unreasonable to assign an employee to a

position as an accommodation if doing so would violate the

employer’s seniority system. 535 U.S. 391, 403 (2002). The

Court reasoned that, “to require the typical employer to show

more than the existence of a seniority system might well

undermine the employees’ expectations of consistent, uniform

treatment–expectations upon which the seniority system’s

benefits depend.” Id. at 404. The Court noted, however, that an

employee may demonstrate that “special circumstances” exist

that justify assigning an individual to a position even if it

violates the employer’s seniority system. Id. at 405.

In this case, both parties agree that United’s CBA estab-

lished a seniority system for bidding on ramp servicemen work

areas, and that in May 2011, the Matrix position became subject

to the seniority bidding system. Dunderdale lost his position

because he did not have sufficient seniority; maintaining

Dunderdale in the Matrix position after May 2011 would have

violated United’s seniority system.

In response, Dunderdale provides two arguments for why

these facts should constitute “special circumstances” warrant-

ing the exception to the Barnett holding.

First, he argues that since United previously restricted the

Matrix position for ramp servicemen with permanent work

restrictions, it would not be “unduly burdensome” to maintain

the status quo. This does not warrant the “special circum-

stances” exception. In Barnett, the Court found that special

10 No. 14-2911

circumstances exist when the facts show that the employer

does not maintain a consistent and uniform seniority system on

which employees rely. See Barnett, 535 U.S. at 405. The Court

gave two examples illustrating when this may occur: when an

employer unilaterally and frequently changes the seniority

system such that there is no reasonable expectation among the

employees that the system will be followed; or where a

seniority system contains significant exceptions such that an

additional exception is “unlikely to matter.” Id. Neither of

these apply here.

We initially note that there is no evidence of global disre-

gard for the seniority system at United, nor is there a record

that United regularly ignored Union complaints that the

Matrix position should be subject to bidding during that time

period. Instead, the company was consistent in its policy of

using the Matrix position to accommodate certain employees

with disabilities during that time. Only when members of the

Union began to question their inability to bid for the position

did United decide that it should strictly adhere to the terms of

the CBA. There is no evidence that this decision was a pretext

for disability discrimination. Disabled employees remained

able to bid for the Matrix position on the basis of seniority.

Neither the decision to accommodate disabled employees in

the Matrix position, nor the later decision to strictly adhere to

the CBA, affected employee expectations in the manner

contemplated by the Supreme Court in Barnett.

Prior to May 2011, the Matrix position was not open to

United’s seniority bidding system for all ramp servicemen.

Therefore, the fact that United previously accommodated

Dunderdale before May 2011 by restricting the Matrix position

No. 14-2911 11

for ramp servicemen with permanent work restrictions does

not affect the other ramp servicemen’s reliance on the bidding

system. Once United opened the Matrix position to the

seniority bidding system, all of the ramp servicemen received

an expectation of unilateral, consistent treatment regarding

bidding for that position. In fact, Dunderdale himself benefit-

ted from that unilateral and consistent treatment because he

bid back into the Matrix position once he reclaimed seniority

in September 2013. His argument fails.

Second, Dunderdale argues that this case presents “special

circumstances” because United changed the bidding system for

the Matrix position without anyone first filing a formal

grievance. However, employers do not have to maintain

positions or job structures that provide reasonable accommo-

dations if the employer finds, for legitimate business reasons,

that the position or job structure should be eliminated. See

Gratzl v. Office of the Chief Judges of the 12th, 18th, 19th, and 22nd

Judicial Circuits, 601 F.3d 674, 680 (7th Cir. 2010). Here, United

decided to change the structure of the Matrix position’s

bidding system so that it would conform to the seniority

bidding system language of the CBA. Increasing reliability and

consistent application of the seniority bidding system is a

legitimate business purpose. We will not second-guess

United’s decision merely because Dunderdale believes United

should have waited for a formal grievance filing. See Ptasznik

v. St. Joseph Hospital, 464 F.3d 691, 697 (7th Cir. 2006) (“Federal

courts have authority to correct an adverse employment action

only where the employer’s decision is unlawful, and not

merely when the adverse action is unwise or even unfair.”).

12 No. 14-2911

2. The No-Bid Positions

Dunderdale also argues that he was qualified to perform

several no-bid positions despite his work restrictions: Auditor,

Bulls-eye, Safety, and the Manpower Office. Further, because

they were no-bid positions, Dunderdale argues United could

have assigned him to them without violating the seniority

bidding system. Since United failed to assign him to any of the

positions, Dunderdale claims United failed to provide him

with a reasonable accommodation.

The fatal flaw in Dunderdale’s argument, as the district

court correctly found, is that he failed to establish that any

vacancies existed in those positions. Under the ADA, while an

employer may have to assign an employee to a different

position as a reasonable accommodation, this duty extends

“only to vacant positions; an employer is not required to ‘bump’

other employees to create a vacancy so as to be able to reassign

the disabled employee.” Gile v. United Airlines, Inc., 95 F.3d 492,

499 (7th Cir. 1996) (emphasis added) (citation omitted); see also

Stern v. St. Anthony’s Health Center, 788 F.3d 276, 291 (7th Cir.

2015) (“Although the ADA requires an employer to consider

reassigning a disabled employee … the employer’s reassign-

ment obligation is nonetheless limited to vacant positions.”)

(emphasis in original) (citation omitted). It is the employee’s

burden to demonstrate that a vacant position exists. Jackson v.

City of Chicago, 414 F.3d 806, 813 (7th Cir. 2005) (citations

omitted).

Dunderdale argues vacant positions were available because

all of the no-bid positions he identified “changed hands” while

he was on EIS. Specifically, during the nearly two years that

No. 14-2911 13

Dunderdale was on EIS, the Auditor position was filled by two

new ramp servicemen, the Bulls-eye position was filled by two

new ramp servicemen, the Safety position was filled by two

new ramp servicemen, and the Manpower Office position was

filled by one new ramp serviceman. Thus, Dunderdale claims

this evidence satisfies his burden to demonstrate that a vacant

no-bid position existed.

We disagree. This court has previously found that the

employee must demonstrate that a vacant position exists at the

time of the adverse employment decision. See McCreary v.

Libbey-Owens-Ford Co., 132 F.3d 1159, 1165 (7th Cir. 1997) (“[the

employee] needed to show that a vacant position in quality

control was available at the time [the employer] fired him.”)

(citation omitted). Under McCreary, the no-bid positions had to

be vacant on April 21, 2011, when United informed Dunder-

dale that he had insufficient seniority to retain the Matrix

position and would be placed on EIS. At that meeting, Siggal

informed Dunderdale that there were no vacancies in any of

the identified no-bid positions. In addition, there is also

precedent suggesting that the employee has to identify that a

vacant position exists at the time the employee requests

reassignment to that position. See Rehling v. City of Chicago, 207

F.3d 1009, 1014–15 (7th Cir. 2000) (finding the employee failed

to produce sufficient evidence that a vacancy in the desired

position existed at the time the employee requested reassign-

ment). Here, Dunderdale made two additional requests for

assignment to a no-bid position in October 2011 and in April

14 No. 14-2911

2013. But, again, he presented no evidence that there were any

vacancies available at the time of either request.2

Dunderdale relies on Johns v. Laidlaw Education Services, 199

F. App’x 568 (7th Cir. 2006), to argue that the fact that the

positions changed hands satisfies his burden to show that a

vacancy existed. However, there are two problems with

Dunderdale’s reliance on Johns. First, it is an unpublished order

issued before January 1, 2007, it is not a precedential decision,

and should not have been cited. 7th Cir. R. 32.1. Second, Johns

is factually distinguishable. The employee in that case, a bus

driver on light duty due to an injury, received a letter from her

employer stating that she no longer qualified for light duty and

instead “will be assigned as a [bus] monitor … until driving

routes were available.” Johns, 199 F. App’x at 569–70 (quotation

omitted). On appeal, the employee argued the employer

should have assigned her to the bus monitor position. Id. at

570. The court found the employee satisfied her burden to

show there was a vacancy because the letter stated that since

there were no bus routes available, the employer will assign the

employee to the bus monitor position; inferring that the bus

monitor position was available at that time. Id. at 570–71. By

contrast, Dunderdale fails to present any evidence indicating

that there was a vacant no-bid position available when he was

removed from the Matrix position, or when he made his two

2

United also claims that Dunderdale was not qualified for any of the no-

bid positions at issue because they involved periodic heavy lifting. Since we

are deciding this case on the basis of Dunderdale’s failure to show that a

vacant position existed, we will not address whether he was qualified for

the no-bid positions.

No. 14-2911 15

requests for reassignment to a no-bid position while he was on

EIS.

In addition, it is undisputed that Dunderdale failed to

apply for any other position with United while he was on EIS.

Other than repeating his request for a no-bid position in

October 2011 and April 2013, he made no effort to obtain any

other reasonable accommodation, and even refused to partici-

pate in the proposed RAP sessions on August 24, 2011, and

November 22, 2011. Furthermore, it was Dunderdale’s duty to

search Skynet for job openings while he was receiving benefits

on EIS, and his failure to do so does not establish that United

failed to reasonably accommodate his disability. See Weiler v.

Household Finance Corp., 101 F.3d 519, 526 (7th Cir. 1996)

(employer reasonably accommodated employee by granting

her requested time off work, short-term disability benefits,

extended leave, and allowed her to use company’s “posting”

procedure to apply for available positions).

III. CONCLUSION

For the foregoing reasons, the ruling of the district court is

AFFIRMED.

16 No. 14-2911

RIPPLE, Circuit Judge, dissenting. Because I believe that the

summary-judgment record reveals genuine issues of material

fact concerning United’s failure to reasonably accommodate

Mr. Dunderdale’s disability and United’s responsibility for

the breakdown in the interactive process, I respectfully dis-

sent.

I.

As my colleagues note, Mr. Dunderdale submits that

United could have accommodated him by allowing him to re-

main in a Matrix position—an option they reject based on US

Airways, Inc. v. Barnett, 535 U.S. 391 (2002). Barnett does not

require this result.

In Barnett, the Court was asked “how the [ADA] resolves

a potential conflict between (1) the interests of a disabled

worker who seeks assignment to a particular position as a

‘reasonable accommodation,’ and (2) the interests of the other

workers with superior rights to bid for the job under an em-

ployer’s seniority system.” 535 U.S. at 393–94. The Court held

that, in the mine run of cases, if a request to transfer disrupts

an established seniority system, it is not a “reasonable” ac-

commodation: “The statute does not require proof on a case-

by-case basis that a seniority system should prevail. That is

because it would not be reasonable in the run of cases that the

assignment [of the disabled employee] in question trump the

rules of a seniority system. To the contrary, it will ordinarily

be unreasonable for the assignment to prevail.” Id. at 403. The

court then offered the following explanation:

Most important for present purposes, to require the

typical employer to show more than the existence of a

seniority system might well undermine the employees’

No. 14-2911 17

expectations of consistent, uniform treatment—expec-

tations upon which the seniority system’s benefits de-

pend. That is because such a rule would substitute a

complex case-specific “accommodation” decision

made by management for the more uniform, imper-

sonal operation of seniority rules. Such management

decisionmaking, with its inevitable discretionary ele-

ments, would involve a matter of the greatest im-

portance to employees, namely, layoffs; it would take

place outside, as well as inside, the confines of a court

case; and it might well take place fairly often. We can

find nothing in the statute that suggests Congress in-

tended to undermine seniority systems in this way.

And we consequently conclude that the employer’s

showing of violation of the rules of a seniority system

is by itself ordinarily sufficient.

Id. at 404–05 (citation omitted).

The Court observed, however, that the plaintiff “re-

main[ed] free to show that special circumstances warrant[ed]

a finding that, despite the presence of a seniority sys-

tem … the requested ‘accommodation’ is ‘reasonable’ on the

particular facts.” Id. at 405. For instance, the Court suggested,

a plaintiff might show “that the employer, having retained the

right to change the seniority system unilaterally, exercises

that right fairly frequently, reducing employee expectations

that the system will be followed—to the point where one

more departure, needed to accommodate an individual with

a disability, will not likely make a difference.” Id. The plaintiff

also “might show that the system already contains exceptions

such that, in the circumstances, one further exception is un-

likely to matter.” Id. The Court expressly noted that it did “not

18 No. 14-2911

mean these examples to exhaust the kinds of showings that a

plaintiff might make.” Id.; cf. Tobin v. Liberty Mut. Ins. Co., 553

F.3d 121, 127–28 (1st Cir. 2009) (holding that the plaintiff had

met his burden of showing that employer’s “performance el-

igibility criteria” for assignment of accounts fell within the

“special circumstances” exception of Barnett because criteria

were not strictly followed and, therefore, deviating from

those criteria would not have “frustrated any individual’s ex-

pectation of receiving” an assignment); Office of the Architect of

the Capitol v. Office of Compliance, 361 F.3d 633, 642 (Fed. Cir.

2004) (holding that plaintiff had established “sufficient evi-

dence that special circumstances warrant[ed]” a deviation

from “AOC’s wage grade classification system” where “the

evidence show[ed] that AOC ha[d] the authority to make ex-

ceptions to the wage grade classification system and that it

ha[d] repeatedly exercised that authority”).

Here, Mr. Dunderdale has established such special cir-

cumstances. From (at least) the time that Mr. Dunderdale re-

turned to work with restrictions in 2005, until United imple-

mented the new bidding process in 2011, United made excep-

tions to the seniority system for employees with physical re-

strictions by reserving the Matrix positions for them. The ex-

pectation of ramp service employees, therefore, was that there

was one area that was not subject to the general seniority bid

process. It was United’s action in changing that approach that

disrupted the employees’ expectations.

According to the majority, however, “[o]nce United

opened the Matrix position to the seniority bidding system,

all of the ramp serviceman received an expectation of unilat-

eral, consistent treatment regarding bidding for that posi-

No. 14-2911 19

tion.” Slip op. at 11. At bottom, the opinion suggests that, de-

spite an employer’s established practice of deviating from a

seniority system, it may decide, at any time, to require strict

adherence to that system. 1 Moreover, when an employer

makes that unilateral decision, an employee may not point to

the employer’s history of deviations to establish special cir-

cumstances for purposes of Barnett. I do not believe this ap-

proach can be reconciled with Barnett. The Court in Barnett

clearly anticipated that an employer’s past practice of deviat-

ing from a seniority system could establish special circum-

stances. If an employer were able to negate the impact of its

past practices simply by announcing a new policy of strict ad-

herence to a seniority system, the exception created by Barnett

would be illusory.

My colleagues also rely on our decision in Gratzl v. Office

of the Chief Judges of the 12th, 18th, 19th, and 22nd Judicial Cir-

cuits, 601 F.3d 674, 680 (7th Cir. 2010), for the proposition that

1 The majority states that United made the decision to adhere strictly to

the seniority system “[o]nly when members of the Union began to ques-

tion their inability to bid for the [Matrix] position[s].” Slip op. at 10. The

record reveals, however, that Debra DiSantis, former Manager of Perfor-

mance and Labor for United’s O’Hare operation, received questions from

employees with physical restrictions about how they could bid into the Ma-

trix area; she testified that “[t]he union would ask questions, employees

would come in and say, ‘I wanna work in there because I can’t do this or

that,’ so lots of people came to see me about things, and that was a topic I

got questions about.” R.52-3 at 13 (DiSantis Dep. 48). Her actions were not

in response to any specific grievances; indeed, she could not remember

any grievances being filed with respect to the prior bidding process for the

Matrix. Moreover, she was “not being pressured by anybody” to change

the bidding process. Id. at 16 (DiSantis Dep. 59). She simply “found a pro-

cess that was not following the guidelines as it should and was not work-

ing well and I looked for a way to fix that.” Id. (DiSantis Dep. 60).

20 No. 14-2911

“employers do not have to maintain positions or job struc-

tures that provide reasonable accommodations if the em-

ployer finds, for legitimate business reasons, that the position

or job structure should be eliminated.” Slip op. at 11. Gratzl,

however, has little bearing on the case before us.

In Gratzl, a court reporter, who suffered from inconti-

nence, had been employed as a “Court Reporting Specialist,”

a position that did not require her to perform courtroom re-

porting duties. A few years later, “[t]he State of Illinois elimi-

nated the ‘Court Reporting Specialist’ job title and consoli-

dated all reporters under the title ‘Official Court Reporter,’”

id. at 677, a position that required courtroom reporting duties.

Gratzl refused numerous accommodations offered by the

court and, instead, brought an ADA action in which she

claimed that her employer had failed to reasonably accommo-

date her when it refused to assign her only to non-courtroom

duties. In evaluating her claim, we first determined that

Gratzl was not a qualified individual with a disability. In do-

ing so, we rejected Gratzl’s argument that, because she could

perform the functions of a “Court Reporting Specialist,” she

also could perform the duties of an “Official Court Reporter”:

Gratzl cannot prove that she is qualified for her current

job simply by citing evidence that she was qualified for

a previous job, with different essential functions, that

has been eliminated. Gratzl is unable to sit in the court-

room during proceedings without disrupting court;

she has offered no evidence to the contrary and, in fact,

her refusal to consider any accommodation that re-

quired that she do in-court reporting strongly suggests

that she believed she was incapable of performing this

function. Therefore, she is not qualified for the job.

No. 14-2911 21

Id. at 680. Looking at the question another way, we held that

Gratzl’s requested accommodation—“exclusive assignment

to the control room”—was not reasonable because “[a]n em-

ployer need not create a new job or strip a current job of its

principal duties to accommodate a disabled employee.” Id.

(citing Ammons v. Aramark Uniform Servs., Inc., 368 F.3d 809,

819 (7th Cir. 2004)).

Putting aside the myriad of other factual distinctions be-

tween Gratzl and the present case, Mr. Dunderdale is not re-

questing that United create a new job or strip a current job of

its principal duties; the Matrix position continues to exist, and

Mr. Dunderdale is not requesting any change in its duties. In-

stead, the accommodation that he seeks is to be allowed to bid

for that existing position on the same terms as he did prior to

2011.

II.

I also would hold that Mr. Dunderdale has raised a genu-

ine issue of material fact with respect to the breakdown in the

interactive process. The majority opinion faults Mr. Dunder-

dale for simply “repeating his request for a no-bid position,”

for failing to respond to two invitations to participate in

“RAP” sessions in August and November of 2011, and for fail-

ing to “search Skynet for job openings while he was receiving

benefits on EIS.” Slip op. at 15. As we have noted, however,

“[t]he last act in the interactive process is not always the cause

of a breakdown, … and the courts must examine the process

as a whole to determine whether the evidence requires a find-

ing that one party’s bad faith caused the breakdown.” EEOC

v. Sears, Roebuck & Co., 417 F.3d 789, 806 (7th Cir. 2005). Under

the circumstances presented here, I believe a jury reasonably

22 No. 14-2911

could conclude that United, not Mr. Dunderdale, was respon-

sible for the breakdown in the interactive process.

Mr. Dunderdale was informed in April 2011 that, because

of his lack of seniority, he had not won the bid to work in the

Matrix. Thereafter, he met with a United representative and

expressed his interest in transferring to another position, spe-

cifically one of the “no-bid” positions. Mr. Dunderdale was

informed, however, that “the only place [he] was able to work

was the Matrix.” R.52-1 (Dunderdale affidavit) at 3.

Following this meeting, United invited Mr. Dunderdale to

participate in two “RAP” sessions, one in August 2011 and

one in November 2011. Mr. Dunderdale, however, previously

had participated in “RAP” sessions. Mr. Dunderdale states—

and United does not contest—that the RAP sessions consisted

of Mr. Dunderdale’s receiving “technical instruction on how

to perform searches” on United’s Skynet. Id. at 4. As Mr. Dun-

derdale already had received this instruction, he did not re-

spond to the invitations in August and November.

An employer must take “an active, good-faith role in the

interactive process.” Sears, Roebuck & Co., 417 F.3d at 806. To

invoke the interactive process, an employee simply needs to

say “‘I want to keep working for you—do you have any sug-

gestions?’’’ Miller v. Ill. Dep’t of Corr., 107 F.3d 483, 487 (7th

Cir. 1997). At that point, “the employer has a duty under the

Act to ascertain whether he has some job that the employee

might be able to fill.” Id. Specifically,

[f]irst, an employer is required to “identify the full

range of alternative positions for which the individual

satisfies the employer’s legitimate, nondiscriminatory

prerequisites.” Next, he must “determine whether the

No. 14-2911 23

employee’s own knowledge, skills, and abilities would

enable her to perform the essential functions of any of

those alternative positions, with or without reasonable

accommodations.” We underscored that an “em-

ployer’s duty to accommodate requires it to consider

transferring the employee to any of these other jobs, in-

cluding those that would represent a demotion.”

Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 694–95 (7th Cir.

1998) (quoting Daltan v. Subaru-Isuzu Auto., Inc., 141 F.3d 667,

678 (7th Cir. 1998)).

United’s efforts on Mr. Dunderdale’s behalf fell far short

of these marks. There simply is nothing in the record to sup-

port a conclusion that United undertook a comprehensive

search for available, alternative positions. United’s response

to Mr. Dunderdale was a perfunctory “no” to his request for

a transfer. 2

My colleagues point to our decision in Weiler v. Household

Finance Corp., 101 F.3d 519 (7th Cir. 1996), to support their con-

trary conclusion—that “it was Dunderdale’s duty to search

Skynet for job openings while he was receiving benefits on

EIS.” Slip op. at 15. I do not believe Weiler supports such a

broad proposition.

2 Although United does not make this argument, it is possible that it did

undertake the comprehensive analysis anticipated by Hendricks-Robinson

v. Excel Corp., 154 F.3d 685, 694–95 (7th Cir. 1998), but concluded that there

were no other positions available for which Mr. Dunderdale was quali-

fied. If that is the case, however, then it also cannot fault Mr. Dunderdale

for failing to conduct a search for available positions on its Skynet because

such a search would have been futile.

24 No. 14-2911

In Weiler, the plaintiff suffered from physical symptoms as

well as depression and anxiety, which she attributed to work-

ing for a specific supervisor. We held that the plaintiff had not

established that she was “disabled” for purposes of the ADA

because “[t]he major life activity of working is not ‘substan-

tially limited’ if a plaintiff merely cannot work under a certain

supervisor because of anxiety and stress related to his review

of her job performance.” Id. at 524. Even assuming, however,

that she were disabled, we concluded that her employer had

reasonably accommodated her condition. We noted that, in

addition to granting her short-term disability, applying for

long-term disability benefits on her behalf, and “allow[ing]

her to post for a new position in the company in the same sal-

ary grade,” her employer’s personnel manager also “searched

for a similar position for her in the company under a different

supervisor, but none was available. … [It] even contacted her

and offered her alternative available positions within her sal-

ary grade and invited her to interview for them.” Id. at 526.

In contrast to the efforts of Weiler’s employer, however,

there is no evidence in this record that United management

attempted to locate positions for which Mr. Dunderdale was

qualified or to facilitate his placement in those positions. On

the record before us, a jury reasonably could conclude that

United made no effort to transfer Mr. Dunderdale, but simply

pointed him to a website and required him to do the rest. Un-

der our case law—including Weiler—this is not a sufficient re-

sponse.

We have noted that “[n]o hard and fast rule will suffice”

for attributing blame for the breakdown of the interactive pro-

cess. Beck v. Univ. of Wis. Bd. of Regents, 75 F.3d 1130, 1135 (7th

Cir. 1996). “Rather, courts should look for signs of failure to

No. 14-2911 25

participate in good faith … . A party that fails to communi-

cate, by way of initiation or response, may also be acting in

bad faith.” Id. Here, there is evidence from which a jury rea-

sonably could conclude that United’s lack of response to Mr.

Dunderdale’s request to be transferred caused the breakdown

in the interactive process.

For these reasons, I respectfully dissent.