Opinion
Case Number 98 C 7584.
October 2, 2000.
MEMORANDUM OPINION AND ORDER
Plaintiff, Mary Susan Riley ("Riley"), brings this action against defendants, Rita A. Fry and County of Cook, Illinois ("Fry"), alleging that Fry failed to accommodate her disability in violation of the Americans with Disabilities Act (the "ADA"). Before the Court is the Defendants' Motion for Summary Judgment.
BACKGROUND
The following facts are taken from the parties Local Rule 56.1 submissions. The facts are undisputed, unless specifically stated otherwise. Riley worked as an Assistant Public Defender ("APD") from 1991 until she was terminated in October 1997. (Fry's Stmt., ¶ 2) Fry has been the Cook County Public Defender since 1992, and the APDs report directly to her. (Fry's Stmt., ¶ 1)
On January 18, 1990, Riley sent a letter to Randolph N. Stone, who was then the Public Defender, requesting medical leave because she had a medical condition that caused severe vaginal pain, which was later diagnosed as Vulvadynia. (Fry's Stmt., ¶ 3) Riley's Stmt., ¶ 67) Stone replied that they would do everything that they could to assist her during that difficult period. (Fry's Stmt., ¶ 4; Riley's Stmt., ¶ 69) Although Riley thought her leave would only last one month, she extended it several times until she returned to work nine months later on October 1, 1990. (Fry's Stmt., ¶ 5)
Riley again requested leave on March 8, 1991, stating that her pain was too great for her to work, and that the pain interfered with walking, talking, and concentrating. Although Riley believed she would be on leave less than one month, she did not return to work until April 1993. (Fry's Stmt., ¶ 6) When she returned to work in April 1993 she worked at various geographic locations where APDs at her grade level could be assigned. Riley handled bench trials, bond hearings and motions to suppress, and she liked working at the Grand and Central location because it was close to her home, it had parking, and she had a sympathetic partner and a good judge. (Fry's Stmt., at ¶ 7) Riley was then transferred to an assignment at 11th and State, where she was doing the same type of work, but she did not like the assignment because she had a longer commute, her husband had to drive her because of her pain, it lacked parking, and it was unfamiliar to her. (Fry's Stmt., ¶ 7; Riley's Stmt., ¶ 122) In her performance review for this period of time, her supervisor noted that she was often absent due to her illness. (Riley's Stmt., ¶ 127)
On May 12, 1994, Riley wrote Fry a letter where she, among other things, described her medical condition and expressed her dissatisfaction with her 11th and State assignment. (Fry's Stmt., ¶ 8) She requested that Fry accommodate her for her disability by either reassigning her to Grand and Central or reassigning her to Night Bond Court at 26th and California. (Fry's Stmt., ¶ 8; Riley's Stmt., ¶ 129) She explained that the Night Bond Court assignment would make it easier for her to deal with her pain, but she did not mention that her pain was less severe at night. (Fry's Stmt., ¶ 8)
After receiving Riley's letter and discussing it with Riley, Riley's physician, and various supervisors, Fry assigned Riley to Night Bond Court. (Fry's Stmt., ¶ 9) In November or December of 1994, Riley began another leave of absence because her pain was interfering with her ability to represent her clients in court. (Fry's Stmt., ¶ 10, and Riley's Resp. to ¶ 10)
On December 12, 1994, the First Assistant Public Defender, Edwin A. Burnette, wrote to Riley stating that she had been reassigned based on her own request, and that with the reassignment the pattern of her absences "ha[d] not ceased" and that she was expected "to be present and to work in order to continue her employment." (Fry's Stmt., ¶ 11) Shortly thereafter, Riley adopted a child, and she was on maternity leave from January 1995 until July 1995 when she returned to the same assignment at Night Bond Court. (Fry's Stmt., ¶¶ 12, 13)
On May 6, 1996, the Director of Chicago Operations, Patrick M. Gleason, wrote a letter to Burnette regarding Riley's attendance record for the previous year between July 1995 and December 1995. He said that it was "generally acceptable" for that period, but since that time the "situation [was] deteriorating." (Fry's Stmt., ¶ 14)
On May 22, 1996, Gleason told the Chief of the First Municipal Division, David Baitman, to convene an investigatory meeting to address Riley's attendance problems. (Fry's Stmt., ¶ 15) Riley alleges that the true purpose of the meeting was to provide an after-the-fact basis for her termination. (See Riley's Resp., to Fry's Stmt., ¶ 15) After the meeting, Baitman sent a memo to Gleason stating that there were two three-day periods in May and June 1996 where Riley did not report to work and did not notify anyone that she would not be at work, which Baitman concluded constituted job abandonment under the collective bargaining agreement. Baitman recommended Riley's discharge. (Fry's Stmt., ¶ 16) Gleason sent a copy of this memo to Fry, indicating that he agreed with Baitman's recommendation. (Fry's Stmt., ¶ 17)
Gleason instructed Baitman to conduct a pre-disciplinary hearing, which took place on August 6, 1996. After the hearing, Baitman sent a memo to Gleason again recommending Riley's discharge. (Fry's Stmt., ¶ 19) Riley adds that Baitman recommended terminating her for job abandonment even though the documents show that the June 14, 15 and 16 day were reclassified as sick days not zero (non-call in days). (Riley's Stmt., at ¶ 179) Riley was later sent a written reprimand for her failure to notify properly her employer and/or appear for work as assigned on two three-day periods in May and June 1996. (Fry's Stmt., ¶ 21)
On August 15, 1996, Gleason sent a copy of Baitman's report to Fry stating that he understood that Riley had requested "some form of leave" and that he feared that granting leave "will only delay the inevitable. But doing so will put us in the position of having bent over backwards to accommodate her." He stated that he believed that she would eventually have to be terminated because "she is incapable of discharging even minimal duties with this office in that she cannot or will not come to work." (Fry's Stmt., ¶ 19; Riley's Stmt., at ¶ 181)
On August 16, 1996, Riley requested a leave of absence under the Family Medical Leave Act (the "FMLA") and she also sought disability compensation from the County. (Fry's Stmt., ¶ 20) Fry approved the FMLA leave from August 19, 1996 through November 19, 1996. (Riley's Stmt., at ¶ 190) Riley's disability leave was later approved through July 3, 1997. (Riley's Stmt., at ¶ 194) On June 17, 1997, Riley sent a letter to Fry stating that she had exhausted her disability credits and wanted to return to work; while she still suffered from bouts of extreme pain, she believed that she could handle the same assignment at Night Bond Court, (Fry's Stmt., ¶ 23; Riley's Stmt., at ¶¶ 195-96) Two of Riley's physicians also sent letters stating that she was able to return to work if she was assigned to the same job that she had prior to going on disability and if her employer recognized that she sometimes would miss work on short notice without advance warning. (Fry's Stmt., ¶ 24)
Riley was not assigned to Night Bond Court, but was instead assigned to Domestic Violence Bond Court at 13th and Michigan. The parties disagree, however, on whether that assignment was a reasonable accommodation. Fry claims that staffing on the Night Bond Court was very bare because it was anticipated that it would cease to exist, which it ultimately did. (Fry's Stmt., ¶ 25) Fry testified that the impact of Riley's unexpected absences would have a negative effect on the clients, and decided that Riley needed to be in a courtroom where there were other attorneys available to cover Riley's cases in her absence. Fry testified that the assignment had similar work to what Riley had been previously doing and that it would meet her needs. Id. Riley disagrees, and claims that Fry looked at Riley's medical condition independent of her doctor's recommendation, was dismissive of Riley's needs and other requests for accommodation, and did not discuss the assignment with her or her doctors. (Riley's Stmt., ¶ 211; Riley's Resp. to Fry's Stmt., ¶ 25) Riley also claims that this was a cancellation of her previous accommodation. (Riley's Stmt., at ¶ 199)
Riley was told to report to her new position on July 7, 1997. On July 6, 1997, Riley sent a letter to Fry stating that Fry had "arbitrarily canceled a previously granted accommodation under the ADA" and requested that she be assigned to the Night Bond Court. (Fry's Stmt., ¶ 26; Riley's Stmt., at ¶ 201) She wanted the Night Bond Court over her then current assignment at 13th and Michigan because her pain seemed greater in the morning than in the evening, parking was available at the Night Bond Court, she was familiar with the area around 26th Street, and it was less grueling for her. (Fry's Stmt., ¶ 27) One of Riley's physicians wrote a letter stating that Riley could return to work only if she had the same assignment as before, defined as night duty, four nights in a row and three nights off, frequently involving less than eight-hour shifts. (Riley's Stmt., at ¶ 218) On July 7, 1997, Riley called and said that she was not going to report to work at Michigan and 13th Street. (Riley's Stmt., at ¶ 203)
On July 31, 1997, Baitman reported that since Riley was directed to return to work on July 7, 1997, she had only reported to work on two days. (Fry's Stmt., ¶ 28} Fry then sent a letter to Riley stating that even with the accommodation that Riley previously had at Night Bond Court she "frequently failed to come to work or to notify" the Public Defender that she was not coming in to work. She further explained that currently there was only one APD assigned to Night Bond Court, and due to the unpredictability of Riley's illness the Public Defender would have trouble covering her absences. She also said that the most similar assignment to Riley's previous accommodation was the Domestic Violence Bond Court, and that Riley was required to report to Baitmen for implementation of this accommodation by August 1, 1997. (Fry's Stmt., ¶ 29) Riley failed to report to work between August 1 and August 8, 1997.
On August 8, 1997, Riley was notified that a meeting had been scheduled to determine whether Riley could function as an APD and whether there was an accommodation that would enable her to do so. (Fry's Stmt., ¶ 30) The meeting was held on August 18, 1997, and the parties disagree on exactly what was discussed. Based on the written minutes of the meeting, Fry claims that they discussed, among other things, the fact that Riley was not currently able to work and she was requesting an additional leave of absence, Riley's preference for a position in the evenings or closer to her home, possibly in Maywood; Burnette's perception that the central function of Riley's job required her to come to work; the fact that Night Bond Court would soon cease to exist; and the conclusion that a more specific medical certificate would help mattters. (Fry's Stmt., ¶ 31) Riley asserts that the minutes from the meeting do not show that in addition to her requests for leave and a Maywood assignment, she also requested a work at home assignment with a possible transfer to the Appeals division, and that this was left up in the air and not further pursued. (Riley's Resp. to Fry's Stmt., ¶ 31) Riley was also not told that there were not any openings at Maywood. (Riley's Stmt., ¶ 245)
On August 19, 1997, Riley contacted Fry and requested a leave of absence until September 18, 1997. Fry responded, requesting a statement from Riley's physician setting forth her diagnosis, prognosis, and anticipated period of convalescence. Fry further replied stating that Riley had no more leave time available, that Riley's request for unpaid leave could not be acted upon until Riley submitted the requested medical information, and instructing Riley to contact the Cook County Director of Personnel. (Fry's Stmt., ¶ 32) Riley never contacted the Director of Personnel, but testified that her husband "may have" but she did not remember. (Riley Dep., at 140) Riley wrote to Fry on September 25, 1997, requesting unpaid leave and attached a note from her doctor. Riley stated that she did wish to return to work after the leave but that she "suspected" that her return would require accommodations. (Fry's Stmt., ¶ 33) The physician's note stated that Riley suffered from "debilitating" pain and that at times her pain may be under "reasonably good control" but at other times she has flare-ups "which make her totally disabled." (Exhibit LL to Fry's Motion)
Riley testified that in October 1997 she would sometimes double over from the pain. (Riley Dep. at 156) If her pain was not too bad she could read in bed, and the amount of time she spent in bed varied. Approximately every other day she "was just totally out of it" and sometimes the pain would be so bad that she "couldn't think, much less talk." (Riley Dep. at 158) Riley testified that during this time "the pain was stabbing, burning, sometimes terrible; in other words, taking away the ability to represent another human being." (Fry's Stmt., ¶ 34)
Regarding Riley's request for leave, Fry testified that based on the totality of the circumstances, it was in the best interests of the clients, the office and Riley to make a decision. On October 3, 1997, Fry sent Riley a letter stating that Riley had exhausted all of her leave time, and that unless Riley could return to work immediately, Riley's employment would be terminated. (Fry's Stmt., ¶ 35) Fry ultimately terminated Riley.
Riley filed discrimination charges with the U.S. Equal Opportunity Commission on July 22, 1998, alleging that she had been discriminated on the basis of her disability and that the Public Defender's Office rescinded her previous accommodation in July 1997 and discharged her in October 1997. (Fry's Stmt., ¶ 36)
DISCUSSION
Summary judgment is proper when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED.R.CIV.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In determining whether a genuine issue of material fact exists, the Court construes all facts in the light most favorable to the non-moving party and draws all reasonable and justifiable inferences in favor of that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)
"The standard governing summary judgment is clear: `[I]f no rational jury could, on the evidence presented in the summary judgment proceeding, bring in a verdict for the party opposing summary judgment . . . then summary judgment must be granted.'" Oates v. Discovery Zone, 116 F.3d 1161, 1175 (7th Cir. 1997) (citing Visser v. Packer Engineering Associates, Inc., 924 F.2d 655, 660 (7th Cir. 1991)). The plaintiff has to produce more than a scintilla of evidence in support of her position. See Anderson, 477 U.S. at 252.
As a preliminary matter, Fry argues that any of Riley's discrimination claims that are based on events occurring 300 days prior to the date she filed charges with the EEOC, including Riley's allegations that Fry refused to assign her to Night Bond Court in July 1997, are barred. Riley filed charge with the EEOC on July 22, 1998, and 300 days prior to that date is September 26, 1997. (Fry's Mem., at 11) Riley responds, that it was reasonable that Riley would not believe that she had a claim until her employment was terminated, and that the events leading up to her termination cannot be separated from the termination. (Riley Mem., at 21)
The continuing violation doctrine allows "a plaintiff to get relief for a time-barred act by linking it with an act that is within the limitation period." Speer v. Rand McNally Co., 123 F.3d 658, 663 (7th Cir. 1997), citing Selan v. Kiley, 969 F.2d 560, 564 (7th Cir. 1992). The purpose of permitting a plaintiff to maintain a cause of action on the continuing violation theory is "to permit the inclusion of acts whose character as discriminatory acts was not apparent at the time they occurred." Speer, 123 F.3d at 663. The plaintiff must sue "as soon as the harassment becomes sufficiently palpable that a reasonable person would realize she had a substantial claim." Wilson v. Chrysler Corp., 172 F.3d 500, 510 (7th Cir. 1999)
Viewing the facts in the light most favorable to Riley, it was reasonable for Riley to not believe that she had an ADA claim until she was terminated. Previous to that time, she had been given all of the leave and the specific assignment that she requested as an accommodation. After she was not assigned back to the position in Night Bond Court in July 1997, officials at the Public Defenders Office informed her that there would be a meeting to discuss whether a reasonable accommodation could be made so that she could return to work. After the meeting, Riley continued to exchange letters and submit information, and looking at the facts in the light most favorable to Riley, it is possible that she did not believe that she had a claim until she was actually terminated.
To state a claim for discrimination in violation of Title I of the ADA, Riley must establish that: (1) she is disabled; (2) she is otherwise qualified to perform the essential functions of her job with or without reasonable accommodation; and (3) that the employer took an adverse job action against her because of her disability or failed to make a reasonable accommodation. Stephens v. Illinois Dept. of Transp., 210 F.3d 732, 736 (7th Cir. 2000). For the purpose of this motion, Fry has conceded that Riley is disabled, and Fry has moved for summary judgment on the second and third elements only.
To determine whether Riley is a "qualified individual with a disability" the court must undergo a two-step analysis to determine (1) whether the employee satisfies the prerequisites for the position, such as possessing the appropriate educational background, employment experience, skills, licences, etc.; and (2) whether or not the employee can perform the essential functions of the position held or desired, with or without reasonable accommodation. Bombard. v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 563 (7th Cir. 1996); Waggoner v. Olin Corp., 169 F.3d 481, 484 (7th Cir. 1999). The determination of whether the employee is a qualified individual must be made as of the time of the adverse employment decision, and the plaintiff bears the burden of proof on this issue. Id.
There is no dispute as to the first element, as Riley clearly satisfied the prerequisites for the position. Regarding the second element, Riley conceded during her deposition that at the time of her termination in October 1997, she "couldn't think, much less talk" (Riley Dep., at 158), and that the pain she was experiencing took "away the ability to represent another human being" preventing her from being able to represent her clients. (Riley Dep., at 162) There is no accommodation that would allow Riley to perform the essential functions of her job as an Assistant Public Defender if she could not think, talk, or represent her clients, and no reasonable jury could find otherwise. As this is the relevant time period for determining whether Riley was a qualified individual with a disability, summary judgment is appropriate. See Koshinski v. Decatur Foundry, Inc., 177 F.3d 599, 602-3 (7th Cir. 1999). That Riley was not able to perform the essential functions of her job is further demonstrated by her attendance record. The Seventh Circuit has stated that "generally attendance is a requirement of a job," Waggoner v. Olin Corporation, 169 F.3d 481 (7th Cir. 1999), and that "an employee who does not come to work cannot perform the essential functions of his job." Nowak v. St. Rita high School, 142 F.3d 999, 1003 (7th Cir. 1998). The ADA does "not protect persons who have erratic, unexplained absences, even when those absences are a result of a disability." Waggoner, 169 F.3d at 484. The Waggoner Court, however, did leave open an exception for some jobs where working at home, for a time, might be an option. Waggoner, 169 F.3d at 485.
The parties disagree as to whether regular attendance was an "essential function" of Riley's job as an APD and also whether Riley had an erratic attendance record. Riley argues that her job fits into the exception in Waggoner and does not require regular attendance. She argues that regular court attendance and client contact are not essential functions of an APD because at times she was assigned to duties that required minimal or no court appearances. (Riley's Stmt., at ¶¶ 150-54) Riley also alleges that the essential functions of her job, writing, thinking and researching, do not require her to be at a specific court or facility. (Riley Mem., at 11) Riley further argues that the fact that it was an accepted practice for APDs to take assignments and files home with them and that the Public Defender's Office recently purchased laptop computers imply that the Public Defender believes that an APD can complete her essential functions at home.
Fry argues that regular attendance in court was required of the job because the essential function of an APD is to represent clients, and that it is "ludicrous" to argue that regular court room attendance and client contact are not essential functions of an APD. (Fry Reply Mem., at 5) The Court agrees.
The Court finds that there is no genuine issue of material fact as to whether attendance is a requirement of an APD. An employer is granted some deference in identifying the essential functions of a job under the ADA. See 42 U.S.C. § 12111(8) ("consideration shall be given to the employer's judgment as to what functions of a job are essential"). Riley was also given written notice by a supervisor that she was required to come to work to perform her job. (Fry's Stmt., ¶ 11) Riley has not presented any evidence demonstrating that there were any APDs that were not required to go to court or meet with clients.
Furthermore, no reasonable jury could find that Riley's attendance was not erratic. To summarize briefly, in 1990, Riley took a nine-month leave of absence. (Fry's Stmt., at ¶¶ 4, 5) Upon her return, she worked five months and then took a 25-month leave of absence returning in April 1993. (Fry's Stmt., at ¶ 6) Based on Riley's request for an accommodation, she was transferred to Night Bond Court in 1994, and four months later her pattern of absences had not ceased. In November or December of 1994, Riley began another leave of absence, (Fry's Stmt., at ¶¶ 9, 10), and then she was on maternity leave for six months from January 1995 through July 1995. (Fry's Stmt., at ¶ 12) When she returned to work in July 1995, her attendance was satisfactory for a period but then later deteriorated. (Fry's Stmt., at ¶ 14) In August 1996, Riley requested a further leave of absence, and she was on leave until July 1997. (Fry's Stmt., at ¶ 23) Riley reported to work for only two days in July 1997 (Fry's Stmt., at ¶ 28), and Riley again requested leave from August 5, 1997 through September 18, 1997, and then again until October 20, 1997. This undisputed evidence demonstrates that over almost a seven-year period, Riley was not at work almost two-thirds of the time. Even aside from the disputed issue of Riley's failure to notify anyone at work for two separate three-day periods, no reasonable jury could find that Riley's attendance was not erratic.
Riley is like the employee in Waggoner: "[i]t is as if she thinks that rather that insuring that she be allowed to work, the ADA requires [her employer] to provide her with a job but not require that she regularly perform it. . . . The Act does not go so far." Waggoner, 169 F.3d at 485. The Wagonner court also explained that it is not a reasonable accommodation to require an employer to find replacements for absent employees, which is what Fry was required to do when Riley did not work. Id.. Further, "the ADA does not require an employer to accommodate an employee who suffers a prolonged illness by allowing him an indefinite leave of absence." Nowak, 142 F.3d at 1004.
In addition, even after Fry gave Riley the accommodation that she desired, the transfer to the Night Bond Court in 1994, there is evidence that her pattern of absences did not improve. See Tyndall v. National Education Centers Inc., 312 F.3d 209, 214 (4th Cir. 1994) (finding that employee was not a qualified individual where attendance level did not improve even after accommodation) Therefore, Riley is not a qualified individual under the ADA, and summary judgment is appropriate.
Furthermore, Fry claims that no reasonable jury could find that Fry's failure to assign Riley to the Night Bond Court position in July 1997 constitutes failure to accommodate. (Riley's Mem., at 11-13) Fry also claims that Riley's request for additional leave time in September 1997 was not a reasonable request for an accommodation. (Riley Mem., at 11-15) The Court agrees that Riley has not presented sufficient evidence that would allow a reasonable jury to find that Fry's failure to assign Riley to the Night Bond Court Position and to grant her additional leave time constitutes failure reasonably to accommodate her.
It is well settled that an employer is required to provide reasonable accommodation, but not necessarily the accommodation that an employee requests or prefers. Corder v. Lucent Technologies Inc., 162 F.3d 924, 928 (7th Cir. 1998). Upon Riley's request for an accommodation, Fry was thus required to assign her to position that would reasonably accommodate her disability, but Fry need not give Riley the assignment that she preferred or specifically requested. See Gile v. United Airlines, 213 F.3d 365, 374 (7th Cir. 2000) (the ADA does not obligate employers to "bump" other employees or to create new positions). Riley has not pointed to any evidence that there was a vacant position at the Night Bond Court. Riley's doctors, while allowing her to return to work, said that Riley still "suffered from bouts of severe pain that may interfere temporarily with her ability to perform her job." (Exh. BB to Fry's Motion) It is also undisputed that staffing at the Night Bond Court was bare and was being scaled down because it was anticipated that the Night Bond court would cease to exist. (Fry Dep. at 99-103) There would not be other APDs there if Riley was unable to appear for work, and clients could be left without an APD. Thus, Fry's failure to assign Riley to her requested assignment, where there is no evidence that there were vacant positions and where it would be a hardship to cover her absences, does not constitute failure to accommodate.
Fry's failure to grant Riley additional leave time also does not demonstrate that Fry failed to accommodate Riley. The Seventh Circuit has recognized that "[t]here are limits to how far an employer must go in granting medical leave." Waggoner, 169 F.3d at 484. The Waggoner court explained that the "award for the most accommodating employer" must go to the employer in Corder v. Lucent Technologies Incorporated because among other accommodations, the employee was given leave for about half of the time over several years since she requested leave as an accommodation. Id.. In the instant case, Riley was on leave for almost two-thirds of the time over the seven-year period at issue. As such, failure to grant Riley additional leave does not constitute failure to accommodate but could place Fry in a position to replace Lucent Technologies as the "most accommodating employer."
And contrary to Riley's assertions, Riley's situation is not like the post-trial factual situation presented in Haschmann v. Time Warner Entertainment Company, 151 F.3d 591 (7th Cir. 1998). In Haschmann the employee first requested a short medical leave, and she returned to work a few weeks later. Shortly after that she requested a second short leave of absence, and when she reported into work a few days later, as requested by her employer, she was fired. Id.. at 595. The jury was instructed that employers could be required to proved reasonable medical leave but employers were not obligated to tolerate erratic, unreliable attendance. The court held that it was reasonable for the jury to find that the employee's request for a short leave of absence was a reasonable accommodation that the employer should have made. Id.. at 602. The court further distinguished the facts in Haschmann from the facts in Nowak where the employer was absent for numerous, long periods of time before he was terminated. Id.. Riley's case clearly falls into the Nowak arena.
The Court does acknowledge, however, that this Circuit recognizes that often the disabling aspect of a disability "is, precisely, an intermittent manifestation of the disability, rather than the underlying impairment" and employers have duty to accommodate, within reason, episodic flare-ups. Haschmann, 151 F.3d at 600. The accommodation proposed by Fry was intended to accommodate the fact that Riley had flare-ups by placing Riley at a facility where there were other APDs that could handle her cases when she was unable to work, but Riley refused this accommodation. The Lucent court held that such an accommodation, where the employer ensures that other employees can handle the accommodated employee's work when the employee is unable to work on short term notice, "easily qualifies as a reasonable one for ADA purposes, since nothing in the ADA requires an employer to give an employee indefinite leaves of absence." Lucent, 162 F.3d at 929, citing Nowak, 142 F.3d at 1004. An employee's failure to accept a given accommodation does not change the fact that an employer satisfied its duty to reasonably accommodate an employee. See Lucent, 162 F.3d at 929.
An employer is only required reasonably to accommodate an employee if those reasonable accommodations would permit the employee to perform her job. See Gile, 213 F.3d at 372. Here, in an attempt to defeat summary judgment, Riley asserts that if she had been given the accommodations that she requested, she would have been able to perform her job.
First, she wanted a transfer to the Appeals Division combined with the ability to work at home claiming that it would reduce her stress from having to adjust to new courtrooms and from traveling to court. (See Riley's Mem., at 14) The Seventh Circuit has explained, however, that "[g]enerally, . . . an employer is not required to accommodate a disability by allowing the disabled worker to work, by himself, without supervision, at home," and that "it would take a very extraordinary case for the employee to be able to create a triable issue of the employer's failure to allow the employee to work at home." Vande Zande v. State of Wisconsin Dept. of Administration, 44 F.3d 538, 544 (7th Cir. 1995). Riley has not set forth evidence that demonstrates that this is one of the extraordinary cases. She has not presented any evidence that there were any vacant positions in the Appeals division, and her proffered evidence that a "comparable employer" had made such an accommodation is inadmissible hearsay and in any event, irrelevant. See also Rehling, 207 F.3d at 1009 ("an employee who requests a transfer cannot dictate the employer's choice of alternate positions.")
Second, Riley wanted a transfer to the Maybrook facility because the shorter commute, available parking, and her familiarity with the site lessened her stress. (Riley Mem., at 16) The ADA does not obligate employers to "bump" other employees or to create new positions, nor does it allow employees to dictate the choice of position. See Gile, 213 F.3d at 374. Riley does not point to any evidence in the record demonstrating that there were available positions at the Maybrook facility. See Rehling, 207 F.3d at 1015. The fact that Riley would have preferred to work at a different, specific location than the one that she was given as an accommodation is "of no consequence" since an employer is not required to give an employee the accommodation she requests, but instead only reasonable accommodation. Lucent, 162 F.3d at 919.
Riley further argues, albeit indirectly, that the assignment that she was given at 13th and Michigan was not reasonable accommodation because it did not meet her request to work at night, it lacked parking, and gave her a longer commute while a reasonable jury could find that the assignment was not a reasonable accommodation because it did not meet her specific needs, Riley, however, did not set forth any evidence that there were any nighttime positions available nor did she set forth evidence that there were available positions at sites that were closer to her house and had better parking. See Lucent, 162 F.3d at 929 (holding that employer is not required to an employee her desired accommodation and finding that employee was not warranted in rejecting employer's proposed accommodation because it lengthened her commute.)
Further to support her claim that Fry did not reasonably accommodate her, Riley attempts to show that Fry failed to engage in the interactive process required by the ADA. Riley claims that Fry did not properly engage in the interactive process to accommodate her and that the interactive process was really a sham. She argues she was not involved in the interactions in any meaningful way, and the meetings were "just a culmination of the preplanned strategy" to eliminate her. (Riley Mem., at 19-20) She argues that nobody contacted her doctors to discuss an accommodation but instead Fry and her agents "unilaterally regularly implemented so called accommodations." (Riley's Mem., at 20)
The ADA envisions a flexible, interactive approach that involves both the employer and the employee to determine the appropriate reasonable accommodation. See Rehling, 207 F.3d at 1015. The record shows a long series of letters, meetings, and discussions regarding Riley's accommodations. It is clear that Riley was accommodated to her satisfaction for many years, and that Fry was fully responding to her requests. A meeting was held in August 1997 to determine whether there were any accommodations that would enable Riley to work, and while Riley asserts that Fry did participate in the process in good faith there is no evidence, aside from conclusory assertions, demonstrating bad faith. Conclusory and self-serving allegations unsupported by the record fail to preclude summary judgment. Taylor v. Monsanto Co., 150 F.3d 806, 809 (7th Cir. 1998). While there may be some disputed issues of fact regarding the interactive process, they are not material, and in any event, would not preclude summary judgment.
CONCLUSION
Therefore, for the foregoin reasons, the Defendants' Motion for Summary Judgment is granted.
IT IS SO ORDERED.