Priscilla Conners v. Robert Wilkie

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 19-2426

PRISCILLA L. CONNERS,

Plaintiff-Appellant,

v.

ROBERT WILKIE,

Defendant-Appellee.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 15-CV-5623 — John J. Tharp, Jr., Judge.

____________________

ARGUED FEBRUARY 14, 2020 — DECIDED JANUARY 14, 2021

____________________

Before SYKES, Chief Judge, and RIPPLE and SCUDDER, Circuit

Judges.

SYKES, Chief Judge. Priscilla Conners worked as a licensed

practical nurse (“LPN”) at a healthcare center operated by

the U.S. Department of Veterans Affairs, where her duties

included treating and observing patients, giving immuniza-

tions, managing the front desk, teaching classes, and filling

out paperwork. In October 2011 she was hit by a car and

suffered severe injuries that seriously impeded her ability to

2 No. 19-2426

perform most of her nursing duties. Her supervisor initially

permitted her to retain her LPN position but radically

reduced her responsibilities to only teaching and paperwork.

After more than two years in that status, the VA concluded

that Conners could not perform the essential duties of an

LPN even with reasonable accommodations and attempted

to work with her on an acceptable reassignment. Those

efforts failed. In January 2014 the VA terminated her em-

ployment.

Conners sued the Secretary of the VA alleging that the

agency violated her rights under the Rehabilitation Act by

failing to accommodate her disability, retaliating against her,

and subjecting her to a hostile work environment based on

her disability. On cross-motions for summary judgment, the

district court entered judgment for the Secretary on all

claims.

Only the accommodation claim is at issue on appeal. The

threshold element requires Conners to prove that she was a

“qualified individual with a disability” when she was

fired—that is, that she was capable of performing the essen-

tial functions of an LPN with or without a reasonable ac-

commodation. The evidence does not support a finding in

her favor on that element. We affirm the judgment.

I. Background

In 2006 Conners began work as an LPN at the Red Rover

Clinic at the Captain James A. Lovell Federal Health Care

Center, a VA-operated facility north of Chicago. In that

capacity she had the following general duties: treating and

observing patients, administering immunizations, supervis-

ing corpsmen who helped with immunizations, managing

No. 19-2426 3

the front desk, teaching classes, and filling out paperwork.

She also was expected to respond to medical emergencies.

The job description required her to “have the physical ability

to perform job-related duties which require lifting, standing,

bending, transferring, stooping, stretching, walking, push-

ing, or pulling without assistance from another patient care

provider.”

In October 2011 Conners was hit by a car as she was

crossing the street. She sustained severe injuries: fractures in

her skull, pelvis, and sacrum, as well as compound leg

fractures. Her injuries required surgery, and she was absent

from work for more than six months while she recuperated.

Conners returned to work on April 30, 2012, with many

physical limitations. She submitted a note from her doctor

describing her required restrictions:

Upon return, she is able to work 4 hours per

day for the first 6 weeks. Then she can increase

her hours to 6 hours per day for 6 weeks. Then

she can increase to full time. She is not able to

lift objects over 20 pounds. She is not able to

climb, run, bend, squat or jump. She cannot

perform prolonged sitting or walking. She

needs to have the ability to change position af-

ter about 15 minutes. She will need to be able

to elevate her leg as needed. She needs to avoid

loud noises. Lastly, she will require at least

four medical visits per month for the next few

months.

Conners’s return to work did not last long. On her second

day back, she went to the hospital emergency room because

4 No. 19-2426

of a broken screw in a rod in her left leg. This required a

second surgery that kept her off work until June 2012. When

she returned, she submitted another doctor’s note explaining

that her physical limitations had not changed but she could

now work full time.

When Conners returned to work in June, the impact of

her limitations became obvious. She could not treat and

observe patients, give immunizations, manage the front

desk, or respond to medical emergencies. Nurse Manager

Mary Bailey, her supervisor, relieved Conners of most of her

responsibilities and limited her duties to teaching and

completing paperwork.

The VA took no other action in response to Conners’s

disability until March 2013. In the meantime, Conners sent

Nurse Bailey numerous medical reports and recommenda-

tions from her doctor describing her continued physical

limitations. Bailey did not forward any of this information to

an accommodation coordinator—the officials at the VA who

are responsible for determining whether and how to ac-

commodate or reassign an employee with a disability.

By late March upper management at the healthcare cen-

ter learned the full impact of Conners’s disability on her job

performance and directed her to contact Eric Strong, an

accommodation coordinator, to fill out a formal accommoda-

tion request. Conners requested five specific accommoda-

tions: (1) a private office, which she said was necessary due

to her posttraumatic stress disorder and chronic pain; (2) the

option to elevate her leg for 15–20 minute intervals every

one to two hours; (3) a footstool; (4) no standing for more

than 10–15 minutes at one time; and (5) a walking limitation

of no more than 25 yards except when absolutely necessary.

No. 19-2426 5

The VA agreed to provide a footstool but could not grant

the other accommodations because a major part of an LPN’s

responsibilities involved seeing patients and administering

and supervising immunizations, which require extended

standing and walking. The VA noted that Nurse Bailey had

on her own initiative limited Conners’s duties to teaching

classes, but even those duties required her to walk more

than 25 yards at times. Conners responded by filing an

administrative complaint with the VA’s Office of Resolution

Management alleging that the VA had failed to accommo-

date her disability.

In June 2013 the VA concluded that Conners was unable

to perform the essential functions of an LPN and gave her

notice of that determination, though it left open the possibil-

ity of reassignment if a different position could be found that

fit her qualifications and physical limitations. The VA asked

her to fill out a form describing her limitations and the jobs

she was qualified to perform and would be willing to accept.

The form also asked if she was willing to relocate outside her

current facility or commuting area and, if so, to list particu-

lar locations (or say whether she was willing to be reas-

signed to any location). Conners responded, saying only that

90% of her current duties were clerical or supervisory and

listing Mesa, Arizona, as the lone possible transfer location.

A portion of the form’s certification section read: “I under-

stand that if [the] VA cannot find a suitable position, the

agency has no further obligation to accommodate me.”

Conners crossed out that sentence.

Strong, the accommodations coordinator, asked Conners

to resubmit the form because it was against VA policy to

permit an employee to customize the form by crossing out a

6 No. 19-2426

portion of the certification. Conners did not comply with this

request.

Months went by without further action by either Conners

or the VA. In October 2013 Conners submitted a second

reassignment form, this time listing Hot Springs, Arkansas,

as the only location outside her current commuting area to

which she was willing to relocate. The remainder of her

responses were identical to those on the form she submitted

in June, and she again crossed out the same portion of the

certification.

Despite the nonconforming certification, the VA contact-

ed healthcare administrators at VA facilities in both Hot

Springs and Phoenix to see if they had any vacant LPN

positions that could accommodate Conners’s requests. Both

responded that they had no open LPN positions that were

compatible with Conners’s requested accommodations.

In November the VA explained to Conners that no avail-

able LPN position could accommodate her limitations and

gave her three options: (1) reassignment to a different job—

i.e., not a nursing position—that was compatible with her

qualifications and limitations; (2) medical-disability retire-

ment; or (3) termination from her LPN position. Conners

responded: “I am going to continue my duties in my current

position with reasonable accommodations. I am gainfully

employed as a nurse with my reasonable accommodations.”

The VA informed Conners that retaining her current po-

sition as an LPN was not an option: “As an LPN in this work

center, there are professional and physical responsibilities

that are simply not being met.” The VA again explained the

three options available to her. She could seek reassignment

No. 19-2426 7

to a different position, which would require an up-to-date

résumé and a formal reevaluation of her qualifications.

Alternatively, she could seek medical-disability retirement.

Finally, if reassignment wasn’t viable and she declined

disability retirement, the VA would terminate her employ-

ment because she was unable to perform the essential duties

of an LPN even with reasonable accommodations.

Conners declined to pursue the first two options, so in

January 2014 the VA sent her a notice of proposed removal.

The notice explained that the VA was planning to terminate

her employment because she was unable to perform the

essential duties of her LPN position and to maintain a

regular work schedule. The VA informed Conners that

between December 1, 2011, and December 11, 2013, she had

missed the equivalent of 304 full workdays due to the pro-

longed leaves of absence compelled by her numerous sur-

geries. The VA gave her 14 days to contest the proposed

action; if she did not do so, her employment would be

terminated. Conners did not respond within the allotted

time, so the VA terminated her employment.

In April 2014 Conners filed a second administrative

complaint with the VA. This time she challenged the termi-

nation of her employment as both discriminatory and retali-

atory in violation of the Rehabilitation Act. She also alleged

that her subordinates and coworkers had harassed her,

creating a hostile work environment. In May 2015 the VA

dismissed both administrative complaints.

Conners then sued the VA Secretary in his official capaci-

ty alleging that the agency violated the Rehabilitation Act by

failing to reasonably accommodate her disability, retaliating

against her, and subjecting her to a hostile work environ-

8 No. 19-2426

ment. See 29 U.S.C. § 794. A suit against the Secretary in his

official capacity is a suit against the agency itself, so for

simplicity we refer to the VA as the defendant. Following

lengthy discovery, Conners sought summary judgment on

her claim for failure to accommodate, and the VA cross-

moved for summary judgment on all claims.

The judge ruled for the VA across the board. Regarding

the failure-to-accommodate claim, the judge explained that

Conners had not offered any evidence that she was a “quali-

fied individual with a disability,” which is an essential

element of the claim. Conners did not address the retaliation

and hostile-environment claims in her response to the VA’s

motion, so the judge deemed them abandoned. For com-

pleteness, however, the judge noted that the summary-

judgment record did not support a claim for retaliation or a

hostile work environment, so the VA was entitled to judg-

ment as a matter of law. The judge entered judgment for the

VA on all three claims, and Conners appealed.

II. Discussion

Conners does not challenge the judge’s conclusion that

she abandoned her retaliation and hostile-environment

claims, so we limit our review to her claim that the VA failed

to accommodate her disability. We give the factual record a

fresh look, construing the evidence and drawing all reasona-

ble inferences in her favor. Lavallee v. Med-1 Sols., LLC,

932 F.3d 1049, 1054 (7th Cir. 2019).

The Rehabilitation Act provides that “[n]o otherwise

qualified individual with a disability in the United States …

shall, solely by reason of her or his disability, be excluded

from the participation in, be denied the benefits of, or be

No. 19-2426 9

subjected to discrimination … under any program or activity

conducted by any Executive agency.” 29 U.S.C. § 794(a). The

Rehabilitation Act expressly incorporates the liability stand-

ards of the Americans with Disabilities Act of 1990 (“ADA”),

id. § 794(d), with one notable exception. The Rehabilitation

Act has a stricter causation requirement: the plaintiff’s

disability must be the sole reason for the alleged discrimina-

tory action; this contrasts with the ADA, which requires only

that the plaintiff’s disability be a reason for the challenged

action. Compare § 794(a) with 42 U.S.C. § 12132. See also

Brumfield v. City of Chicago, 735 F.3d 619, 630 (7th Cir. 2013).

As we shall see, however, causation is not at issue here. The

claim suffers from factual deficits earlier in the legal frame-

work.

An employer covered by the ADA or the Rehabilitation

Act may be liable for disability discrimination if it fails to

“mak[e] reasonable accommodations to the known physical

or mental limitations of an otherwise qualified individual

with a disability who is an applicant or employee,” unless

the employer can show that “the accommodation would

impose an undue hardship on the operation of the [employ-

er’s] business.” 42 U.S.C. § 12112(b)(5)(A). The duty to

reasonably accommodate a disabled employee may require a

reassignment to a vacant position. Id. § 12111(9)(B).

In line with the statutory language, the elements of a

claim for failure to accommodate an employee’s disability

are: (1) the employee was a qualified individual with a

disability; (2) the employer was aware of the disability; and

(3) the employer failed to reasonably accommodate the

disability. Scheidler v. Indiana, 914 F.3d 535, 541 (7th Cir.

2019). If the plaintiff establishes these elements of the prima

10 No. 19-2426

facie case, the burden shifts to the employer to prove that the

requested accommodation would impose an undue hard-

ship. Ford v. Marion Cnty. Sheriff’s Office, 942 F.3d 839, 850

(7th Cir. 2019).

Conners runs into evidentiary trouble on the first ele-

ment: whether she was a qualified individual with a disabil-

ity. The ADA defines a “qualified individual” as

an individual who, with or without reasonable

accommodation, can perform the essential

functions of the employment position that such

individual holds or desires. For the purposes of

this subchapter, consideration shall be given to

the employer’s judgment as to what functions

of a job are essential, and if an employer has

prepared a written description before advertis-

ing or interviewing applicants for the job, this

description shall be considered evidence of the

essential functions of the job.

42 U.S.C. § 12111(8).

Applying this definition typically entails a two-step in-

quiry. The first step asks whether the plaintiff has the basic

qualifications required for the position, such as educational

prerequisites, employment experience, skills, or licenses.

Rodrigo v. Carle Found. Hosp., 879 F.3d 236, 241–42 (7th Cir.

2018). The second step asks whether the plaintiff can per-

form the essential functions of the job with or without

reasonable accommodations. Id. To determine whether a job

duty is an essential function of the position, “we consider the

employer’s judgment, the employee’s written job descrip-

tion, the amount of time the employee spends performing

No. 19-2426 11

that function, the consequences of not requiring the employ-

ee to perform the function, and the experiences of past and

current workers.” Id. at 242.

It’s undisputed that Conners satisfied the basic prerequi-

sites for the position—she was an LPN, after all, and had

performed the job satisfactorily for several years before her

disabling accident. The only question is whether she could

perform the essential functions of the LPN position with or

without accommodations when the VA made its decision to

let her go.

According to the job description, the VA requires its

LPNs to treat and observe patients, assist in medical emer-

gencies, and to “have the physical ability to perform job-

related duties which require lifting, standing, bending,

transferring, stooping, stretching, walking, pushing, or

pulling without assistance from another patient care provid-

er.” In addition, the undisputed evidence shows that prior to

her accident, Conners’s job duties also included administer-

ing immunizations, supervising corpsmen who helped with

immunizations, and managing the front desk.

Conners’s physical limitations stemming from her 2011

accident prevented her from performing most of these

responsibilities. The restrictions on her ability to endure

sustained periods of standing or to walk more than 25 yards

at a time made it impossible for her to treat and observe

patients, respond to medical emergencies, give immuniza-

tions, or manage the front desk. More generally, her limita-

tions were incompatible with the physical requirements

outlined in her job description. The VA considered these

functions and responsibilities essential, and “[w]e presume

that an employer’s understanding of the essential functions

12 No. 19-2426

of the job is correct, unless the plaintiff offers sufficient

evidence to the contrary.” Gratzl v. Office of Chief Judges of

12th, 18th, 19th & 22nd Judicial Circuits, 601 F.3d 674, 679 (7th

Cir. 2010). Conners offered no evidence to rebut this pre-

sumption.

Conners emphasizes that she was able to perform a re-

duced set of duties after the accident—namely, teaching and

paperwork. This evidence, she says, demonstrates that she

was capable of performing the essential functions of an LPN

despite her physical limitations. This argument fails for two

reasons. First, the fact that Nurse Bailey permitted many of

Conners’s job duties to go unperformed does not mean those

duties were not essential functions of an LPN. “An employer

need not create a new job or strip a current job of its princi-

pal duties to accommodate a disabled employee.” Id. at 680.

Second, the argument seems to rest on the premise that

Nurse Bailey’s decision to reduce Conners’s responsibilities

means that altering the normal requirements of an LPN was

not an undue hardship on the VA. But the undue-hardship

inquiry has no role to play in the threshold analysis of

whether Conners was qualified to perform the essential

functions of her job as an LPN. Undue hardship is a defense

and does not come into play until Conners establishes her

prima facie case. If she had produced evidence showing that

she was capable of performing the essential functions of an

LPN with some particular accommodation, then the VA

would have an opportunity to demonstrate that the request-

ed accommodation would create an undue hardship on its

operations. But Conners offered no such evidence. To the

contrary, the undisputed evidence shows that it was impos-

sible for her to perform the essential duties of an LPN even

No. 19-2426 13

with accommodations. There is no need to address the

question of undue hardship.

Though she was not qualified to perform her job as an

LPN, Conners had the option to show that she was qualified

to perform the essential functions of another vacant position

at the VA. Severson v. Heartland Woodcraft, Inc., 872 F.3d 476,

482 (7th Cir. 2017). This too is part of a plaintiff’s prima facie

case, so it was her burden to prove that there was a vacant

position for which she was qualified. Id.; McCreary v. Libbey-

Owens-Ford Co., 132 F.3d 1159, 1165 (7th Cir. 1997). She

hasn’t carried this burden. She offered no evidence that she

could perform the essential functions of any vacant position

at the VA, so a reasonable jury could not conclude that the

VA discriminated against her by failing to reassign her.

Finally, Conners argues that the VA failed to engage in

the interactive process to identify reasonable accommoda-

tions for her disability. Sansone v. Brennan, 917 F.3d 975, 979–

80 (7th Cir. 2019). Setting aside the dearth of evidence for

this contention, Conners cannot show that she was qualified

to perform her LPN job with accommodations, so any failure

to engage in the interactive process is irrelevant. See Stern v.

St. Anthony’s Health Ctr., 788 F.3d 276, 293 (7th Cir. 2015).

And because the interactive process is not an end in itself,

we have repeatedly held that the mere failure to engage in

the process cannot give rise to a claim for relief. Sansone,

917 F.3d at 980; Stern, 788 F.3d at 292; Ozlowski v. Henderson,

237 F.3d 837, 840 (7th Cir. 2001).

AFFIRMED