*1 (7th Cir.1997); 406, 412 Inc., 109 F.3d Super Ltd. v. Pty. Mfg. Systems
Flexible (7th 96, Cir. F.3d Corp., 86
Products
1996). v. Anderson also Lorentzen See (7th Cir. Control, 64 F.3d
Pest pur
1995) (an frivolous for appeal the result obvious when Rule 38
poses of arguments appellant’s
or when times, merit; we at
wholly without faith of bad evidence some required
also should that sanctions finding
before permissive rather Rule 38
imposed). may decline mandatory, and so we
than an appeal if we find fees even
impose Lorentzen, at 64 F.3d e.g. See
is frivolous. may have driven judgment Poor
331. of bad no evidence but we see
appeal here Lorent obstinacy.
faith, harassment below
zen, The sanctions F.3d at 331. purpose no useful substantial
were ordering be served Wis attorneys’ fees Central
pay further defen bear the plaintiff shall
consin. AFFIRMED. appeal.
dant’s costs KAUFFMAN, Plaintiff-
Debra
Appellant,
v. VII, CARE HEALTH
PETERSEN doing Mason
LLC, business Defendant-Appellee.
Point, 13-3661.
No. Appeals, Court of
United States
Seventh Circuit. 18, 2014.
Argued Sept. 16, 2014.
Decided Oct. *2 WOOD,
Before Chief Judge, and MANION, POSNER and Circuit Judges. POSNER, Judge. Circuit This is a suit under the Americans with Act, Disabilities which so far as pertains to this case forbids to discrimi- nate against “a qualified individual,” 42 § 12112(a), U.S.C. defined as “an individu- who, al with or without reasonable accom- modation, can the essential func- tions of the employment position that such individual 12111(8). holds or desires.” The plaintiff began working as one of two (also manicures) hairdressers doing at Ma- son Point in 1981. Mason Point is a large nursing home located in the countryside Sullivan, outside town of in south-cen- tral Mondays Illinois. and Tuesdays the plaintiff would wheel by residents one one in their wheelchairs from their rooms to the nursing home’s beauty shop, do their hair, then wheel them back to their rooms. On days the other of her four-day work- week she mainly did the hair of residents who get could to beauty parlor under their own steam and of residents confined to rooms, their so on days those rarely she had wheelchairs. She some duties were unrelated both to hair- dressing wheelchairs, and such cleaning out birdcages home, the helping out in laundry, carrying trays breakfast to residents. focus of
The concern in litigation her wheeling duties. residents whom ranged wheeled in weight from 75 to 400 pounds; she estimated average their weight at 120 pounds. A lot of wheeling is involved, because as shown in the aerial map the nursing below home consists of several scattered buildings. Although Tsamis, Betty Firm, P.C., Tsamis Law (BLD parlor beauty 3 in diagram) Chicago, IL, Plaintiff-Appellant. located, centrally it is about feet from Kauerauf, John A. Sorling Northup (BLD 13). the farthest residential building n Cochran, Hanna & IL, Cullen Springfield, The plaintiff usually estimated that it took for Defenadant-Appellee. her no more than two or two a half time confirmed the hairdresser beauty resident wheel minutes that two prob- building. estimate, probably meant from even parlor that on said average For she longer. minutes was ably took and a half two beauty parlor journeys her resi- from the a resident to wheel to talk stop often *3 rather beauty parlor, room dent’s the corridors some And passenger. her the farthest required the time than which ramps, home journey. The other traverse. must wheelchairs mentioned later she When had hairdresser. In December late him, her he told duties wheelchair her what called hysterectomy because in lifting” people “you pushing is also can’t be (cystocele cystocele prolapse uterine bladder): wheelchairs, repetitive had “over uterus because her prolapsed called lining to in mesh cause her that would position normal time” out its slipped in for As back you’ll bladder. “and her loose dislodged be torn doing so had uterus, at the Although again.” remove repair part of bladder told us lawyer and mesh plaintiffs was reconstructed argument the bladder oral to hold re- her abdomen was later restriction lining weight installed that push place. can now her client bladder and that moved doing (though she is not again wheelchairs permission her written gave Her doctor by the are belied so), representations these after eight weeks to work to return her testimony doctor’s about she the notation but with operation, any her warning not re- until pounds “push could Pil- occupied more, wheelchairs. at least by the raised so,” a limit to do leased confusion, eventually the doctor ing on months later. five pounds to 50 doctor restrictions her informed job involved know her didn’t he sentence lifted, in the next yet just a been wheelchairs; thought pushing
05 rH 5D same letter (actually letter addressed “to back and forth. That was something that whom may concern re: Debra we Kauff- were not to do.” able man”—the recipient intended doubtless After Wall made clear that he would not being her then employer, Point, Mason accommodate her disability, quit. she Un- though copy) received warned if til she was replaced, remaining hair- heavy she did lifting (presumably including dresser received assistance from other pushing a it), wheelchair with- a person in staff in wheeling the and from she might again experience a prolapsed the beauty parlor. There is no suggestion bladder. For what it’s worth we note that that this diversion staff from nor- their most doctors recommend not lifting more mal duties was costly to the nursing home than pounds ever after the type of or impaired the care provided the resi- *4 surgery had. she ReedGroup, “Disability dents. Cystocele Rectoeele,” Guidelines: or www. In granting summary judgment in mdguidelines.com/cystocele-or-rectocele favor of home, the nursing the district (visited Sept. 2014, as were the other judge ruled that patients wheeling
websites opinion). cited from the beauty parlor is an part of the hairdressers’ and therefore We don’t understand the defendant to there was no reasonable accommodation to be denying that the consequences of the the plaintiffs disability that would enable plaintiffs prolapsed bladder constituted her to meet employer’s the reasonable ex disability within the meaning of the Ameri- pectations. Unresolved disputes factual vi cans with Disabilities physical Act: “a or tiate the judge’s analysis. While Wall esti mental impairment that substantially lim- mated that wheeling residents occupied 60 its one or major more life activities of such percent to 65 of plaintiffs the workday, § individual.” 42 12102(1)(A); U.S.C. see she estimated it occupied only per 6 12102(2). also A prolapsed bladder im- cent of her time on Mondays, when she pairs only ability to lift usually would 4 to 6 residents also vaginal and bladder functions. See wheel, whom she had to percent and 12 on ReedGroup, supra. Tuesdays, when she had or 11 On the of basis the doctor’s warning, wheel, insignificant time the other plaintiff advised the nursing days home’s admin- two her work week. She worked a istrator, Wall, Darin week, that she 35-hour could not but she front-loaded her push residents 'in so that any hours she wheelchairs more. worked 9.5 hours on She Mondays testified at her deposition and on Tuesdays, he re- 19 hours for sponded ((6% the two just days. that “we percent 12%) don’t Nine allow + people to -e 2) work of 19 restrictions, hours is 1.71 and you hours. The have a question would on then be restriction here.... whether her inabil long you’ve [A]s ity to wheel got could reasonably restriction accommo we can’t employ you.” by dated staff, assistance She from other asked him someone else seems to have worked for the might push other hair the residents to and from the dresser plaintiff after the left beauty nursing parlor her, but he demurred. home until a replacement was hired. He testified at deposition his that “we were not able to accommodate that. It Staff time at the nursing ap- home is would put a on hardship facility to hire proximately 8 hours a day per resident. somebody to transport patients Site, The Nursing Home “Mason Point in the beauty shop to the resident’s Sullivan, room II.,” www.nursinghomesite.com/ ivan_il# the em- cost to negligible at a employees MA-
mason_point_sull SONJPOINT_Staff_Size. ployer. there As time staff residents, 3 hours about thought judge also The district 300 hours a total of equates
per resident time she of the estimate plaintiffs Monday plus on day, or 600 time of staff in- “vague and wheelchairs pushing spent push- hours of two Fewer than Tuesday. nothing about conclusive,” yet said on Mon- for a hairdresser ing wheelchairs of how estimate of Wall’s implausibility less require thus Tuesday would day and had devoted plaintiff time the much = ^(2 percent of one than one-third attempting to was Again judge task. on those .0033) staff the available without a dispute genuine factual resolve possible think days. One two trial. of the disrupting without han- judge’s with the problem A further member assign one home to nursing a dispute concerns plaintiff this case dling for the push wheelchairs staff to employ- policy same on toward to do the home’s and another Mondays disability. on the as- this is When course who have Of ees Tuesdays. estimate note her doctor’s Wall showed sumption wheeling pounds over 20 “push her to the time that forbade *5 week) is at least (fewer a so,” two hours nor he than neither she to do until released correct, may not be. and it to approximately be “released” would never knew she than administrator realistic But it more is duties. wheelchair-pushing her resume plaintiff estimate, has the which Wall’s “we don’t told her says that Wall She her entire almost two-thirds spending work.” to with restrictions people allow back pushing workweek Act. He violation That would way base was thus off Wall forth. told her that deposition he his testified at actually thinking (what he was saying judge permanent restrictions.” “with matter) is another speaking was when he apparently testimony, again his accepted would employ her continuing to that con- resolving a testimonial forgetting to employee hiring an additional required requires a depositions tradiction between (What true, though men- is her. wheel for trial. orderly an is that party, by neither tioned not true that a few it’s important, require for would More her who wheeled permanent room to is to the resident’s that a restriction to walk the fact minutes to the employer to walk wheeling automatically begin the excuses the resi- wheeling it. to accommodate beauty parlor attempt start making any room.) have a to her never amputee dent back would an Otherwise accommodation, if it in even right an best estimate What employ costly to nothing more volved can’t be determined spent wheeling employees’ lowering than sink erA summary judgment. aon motion acknowledgment Wall’s Indeed bathroom. judge The district required. trial an em retain Point will not that Mason estimates in time disparity thought (a permanent restriction has ployee who because, however dispute real was not “100% referred sometimes policy plaintiff time the much or little healed”) defense accepted as a if wheel- pushing before out of accommodation” read “reasonable job. of her chairs, part an it was Pow Act. with Disabilities the Americans so small if it was But it wasn’t 815, Inc., Holland, 667 F.3d v. other ers USF reassigned it could be part that
963
(7th Cir.2011);
819
Ardco,
Henderson v.
routines of a few members of the nursing
Inc.,
(6th
645,
Cir.2001).
247 F.3d
653
home’s staff
costly or
impracticable.
“Job restructuring” is one of the accommo- There
Wall’s assertion
dations
must consider.
doesn’t employ people
permanent
EEOC,
See
work restrictions,
Rea-
Guidance:
regardless of the gravity
Enforcement
sonable
Accommodation
Undue
restrictions
the feasibility and
Hardship
Under
cost of
Americans with Dis-
accommodating them.
abilities Act: “Job Restructuring,” www.
A further problem with the district
eeoc.gov/policy/docs/accommodation.ht
judge’s decision is his ignoring the require
ml# job.
If
adjustment
a minor
in the ment that when an employee asks for an
work duties of a couple of other employees
accommodation because of a disability,
would have enabled
despite
“the employer must engage with the em
her disability
the essential
ployee in an ‘interactive process’ to deter
of her
duties
hairdresser,
the mine
appropriate
accommodation un
refusal
home’s
making
consider
der the circumstances.” Bombard v. Fort
such
adjustment
was unlawful. We Wayne
Inc.,
Newspapers,
560,
92 F.3d
563
in Majors
noted
Co.,
v. General Electric
,see
(7th Cir.1996);
also 29 C.F.R.
(7th
527,
714 F.3d
Cir.2013),
534
citing
1630.2(o
)(3); Basden v. Professional
v.
Miller
Dept.
Illinois
Transportation,
Inc.,
Transportation,
1034,
F.3d
1038-
(7th
190,
643 F.3d
Cir.2011),
199-200
(7th
Cir.2013);
Air,
Barnett v. U.S.
“circumstances might exist when employ
Inc.,
1105,
(9th
228 F.3d
Cir.2000)
1112-16
ees working in teams are able to share
(en banc), vacated on
grounds,
other
duties among themselves, so that such
391,
U.S.
S.Ct.
If an accommodation to an employ
get back to her all he said was that he
ee’s disability
reasonable,
the burden
couldn’t accommodate her disability. This
shifts to the employer to “demonstrate
left her with no alternative to quitting.
that the accommodation would impose an
He should have asked her how
of
much
undue
on
hardship
of the
her time at work
pushing wheel-
[employer’s]
business.”
42 U.S.C.
chairs, and on the basis of her answer and
12112(b)(5)(A).
§
Mason Point has made
relevant
information
other employ-
no such demonstration. Wall cited “hard
ees, such as the
hairdresser,
other
have
ship” only in reference to hiring a new
decided whether her disability could be
employee
whose
job would be to
accommodated without undue hardship to
wheel residents whose hair was
by
done
nursing
home. Had he discovered that
the plaintiff to the beauty shop and back.
only a few hours a week
involved,
were
He did not mention the possibility of di-
would have known better than to tell her
verting some time of existing employees to
that he’d have to hire a new employee just
that wheeling. There is no suggestion
for
her.
that the terms of a collective bargaining
(if
agreement
one,
there is
of which there’s
And remember that she had other duties
evidence),
no
else,
or anything
would have besides pushing wheelchairs and doing res-
made the slight adjustment (necessary to idents’ hair. She raised the possibility of
preserve
job)
the of the work
switching from
hairdressing
full-time
course,
must, of
although
employee,
er
off
brushed
laundry, Wall
but
work
al-
accommodations
reasonable
provide
no
with
appears
far
so
suggestion,
disability
awith
individual
qualified
a
feasibility. He did
low
itsof
consideration
functions.
essential
way,
perform
indicate, by the
to accommodate
attempted
ever
£
home has
ADA,
cannot
Under
40,
(the
numbers
staff
employee
individual
qualified
“a
against
discriminate
who
argument)
the oral
told at
were
we
42 U.S.C.
disability.”
of
the basis
disability.
has a
12112(a).
individual
qualified
a
To be
§
we
employees,
of those
speaking
And
of the
meaning
disability within
awith
are orderlies
them
of
that some
imagine
(as
being disabled
ADA,
in addition
wheeling the resi-
duty is
primary
whose
in this
defined,
at issue
and not
statutorily
of the
three-quarters
For almost
dents.
case)
be able “with
must
the individual
wheelchair-bound, and most
are
accommodations, [to]
reasonable
without
day
all
spend
surely don’t want
of them
em-
functions of the
the essential
visits
”
beauty parlor
room. And
in their
42 U.S.C.
position....
ployment
re-
a trial
Should
only once week.
12111(8).
case is
wheth-
§
At issue
needed
only accommodation
veal
resi-
wheelchair-bound
transporting
er
employed
to remain
to enable
at Mason
salon
from the hair
dents
been a
have
nursing home
by the
hair-
function
is an
Point
week,
orderly time
of
hours
couple of
position.
dresser
proving
hard time
very
might
Wall
is an
a task
determining
In
would be
an accommodation
that such
function,
may^consid-
“a
job
court
nursing home.
to the
“hardship”
to,
limited
evidence
er,
is not
in fa-
summary judgment
grant
position,
of a
written
judgment
employer’s
is reversed
the defendant
vor of
advertis-
prepared before
descriptions
proceedings
further
case remanded
job,
for the
interviewing applicants
ing or
opinion.
with this
consistent
past incumbents
experience
the work
ANDRemanded.
Reversed
cur-
experience of
work
job, and the
jobs.” Basith
in similar
incumbents
rent
concurring.
MANION,
Judge,
Circuit
(7th
County,
F.3d
v. Cook
question
court that
agree
I
1630.2(n)(3)).
Cir.2001)
(citing 29 C.F.R.
*7
transport-
concerning whether
fact exists
job
on
time
spent
of
amount
“The
beauty par-
from the
ing residents
a factor
is also
function”
performing the
for hair-
job function
essential
is an
lor
is an
a task
whether
to determine
used
Thus,
Point.
Mason
working for
dressers
2 (quoting
929 n.
Id. at
function.
reversing
decision
I
court’s
concur
1630.2(n)(3)(iii)).
29 C.F.R.
summary judg-
of
grant
court’s
the district
in
disparity
case,
is a great
there
this
In
remanding
Point
ment Mason
of
the amount
concerning
however,
the estimates
separately,
I
trial.
case
write
for
wheeling residents
spent
Kauffman
time
determining whether
in
to stress
The court
beauty salon.
function,
from the
job
task constitutes
theo-
as well as the
disparity,
this
stresses
spent on
task
time
percentage
staff
another
percentage
retical
if the task
employer
cost
and the
task.
on that
spend
need
deciding member
necessarily
are not
reassigned
tipie
on a task
amount
But the
need
Further,
factors.
determining
in
considered
one factor
to anoth-
job function
an essential
reassign
a task is an essential
function.
serviced. A resident’s mental capacity and
It is not dispositive because “an essential
physical needs will vary. Knowledge ac-
function need not encompass
majority
quired by Kauffman
years
over the
about
time,
of an employee’s
significant
or even a
such things
relatives,
medical condi-
time,
quantity of
Basith,
to be essential.”
tions, treating physicians, and other inter-
Thus,
F.3d at 929.
even if Kauffman
promotes
ests
conversations
spent only 1.71
pushing wheelchairs,
hours
meaningful to the resident. Encouraging
that task could nonetheless be an essential
type
of relationship not only benefits
job function.
(holding
Id.
delivery
resident,
but also could be a source of
prescription medications was an essential
information for Mason Point.
If a resident
function of Pharmacy
II posi-
Technician
experiences some mistreatment or neglect,
tion,
though
even
up
it took
“only 45 min- or if a resident has a personal problem
utes to an hour of an 8-hour day”).
that she would like to quietly share, dis-
hypothesizes
court
that an orderly
during
cussions
the trip to and from the
easily
could
take
task and focuses
salon become an important part of the
potentially
low cost of reassigning
quality treatment and service Mason Point
the transporting
(or
task to an orderly
would encourage.
all,
After
Kauffman had
member).
another staff
employ
“[a]n
worked there for twenty years, and surely
er need not reallocate the essential func
she often developed this kind of friendship.
job,
tions of a
qualified
which a
individual That quality
may
service
be essential be-
Basith,
must perform.”
Further,
transport the
“[t]he fact that restructuring is
just
residence
feasible,
easily, but in
itself,
addition to
is not persuasive evi
all of the other personal
dence
benefits
way
one
men-
the other that a function
tioned, Mason
Point
job.” Basith,
essential to a
could also reasonably
No doubt over time Kauffman became ready when she is help to the next Resi- well acquainted with residents that she dent. ser- rendering high-quality goal Point’s job re- determine free to employer
An to Kauffman and allow resident to the “it is vice employees, its sponsibilities relationships important those continue second-guess duty to court’s not this A ran- the years. developed rea- has employer’s as the long so judgment orderly from pushing assignment at 929. dom Id. pretextual.” are not sons for the poor substitute would pool court’s with the concerns I also have with relationship special resident’s reas- temporary Point’s on Mason focus transporting Accordingly, if hairdresser. function transportation signment function, the job an essential residents a hairdresser. short it was while others also need then will on remand court reassignment was this At shows most an such accommodation whether consider though, is the significant, More feasible. is reasonable. was hairdresser new that when fact trans- resumed hired, the hairdressers I concur. courts Among things, other
port function. how, past practice, consider
should job. perform employees
present other and the
Kauffman, replacement, Burich) all re- were (Nancy
hairdresser residents transporting
sponsible appointments. their fact will need remand, the trier On COMPANY, The GRIGOLEIT to determine totality facts evaluate Plaintiff-Appellant, an es- was transporting residents v. it is an even if job function. sential may be able function, Kauffman CORPORATION, WHIRLPOOL ac- reasonable on remand to show Defendant-Appellee. transport her to allow would commodation 14-1663. No. The the salon. and from low- an accommodation illustrates court Appeals, Court United States to allow sink of a bathroom the level ering Circuit. Seventh func- the essential amputee an 29, 2014. Sept. Argued court, indi- though, job. tions of transporting reassigning 2014. cates that Oct. Decided accommodation. equivalent is an function 5, 2014. Nov. Rehearing Denied above, an However, noted function. reassign need analo- Perhaps more at 964-65. supra
See situation, though, is sink to the
gous battery-operated providing
possibility which wheelchair
attendant-controlled con- Kauffman’s allow someone it and safely traverse operate
dition any extra ex- way without trip each
short physician’s violate that would
ertion might be course
limitations. Of *9 meet Mason it would expense.
added