In the
United States Court of Appeals
For the Seventh Circuit
No. 00-1079
Arthur Ozlowski,
Plaintiff-Appellant,
v.
William J. Henderson, Postmaster General,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois.
No. 99 C 756--Charles P. Kocoras, Judge.
Argued September 19, 2000--Decided January 17, 2001
Before Bauer, Manion, and Kanne, Circuit Judges.
Manion, Circuit Judge. Arthur Ozlowski sued his
former employer, William Henderson, the
Postmaster General of the United States, alleging
that the United States Postal Service had failed
to accommodate his disabilities in violation of
the Rehabilitation Act of 1973, 29 U.S.C. sec.
791, et seq. The Postal Service filed a motion
for summary judgment and Ozlowski filed a cross-
motion for partial summary judgment. The district
court granted the Postal Service’s motion and
denied Ozlowski’s cross-motion. Ozlowski appealed
to this court, and we affirm.
I. Facts
Since 1969, Ozlowski has been afflicted with
arachnoiditis, a degenerative spinal disease. As
a result of this disease, over the years Ozlowski
has had several knee surgeries, including two
knee replacements. The disease is progressive and
over time caused increasing difficulties to
Ozlowski, finally culminating in the events
giving rise to this lawsuit.
Ozlowski began working with the Postal Service
in 1975 as a senior computer operator at the
Chicago Bulk Mail Center ("BMC"). In 1986, he
became supervisor of process control systems. He
continued working in a variety of computer-
related positions until late 1992 or early 1993
when the Postal Service reorganized as part of a
national plan and eliminated his supervisory
position. After the reorganization, in October,
1993, Ozlowski was offered his former job as
senior computer operator but at the same pay he
was currently receiving. He claims that he
refused that offer because he wanted a position
more commensurate with his experience. Ozlowski
was eventually assigned to be supervisor of
distribution operations at the Fox Valley
facility in Aurora, Illinois. However, Ozlowski
did not report to work at Fox Valley, but instead
asked to be temporarily assigned elsewhere while
he awaited knee surgery. His request was granted
and he was assigned to work at the Irving Park
facility. In November, 1993, Ozlowski underwent
surgery on his right knee. After his recovery,
Ozlowski asked to be detailed to the BMC. Again,
Ozlowski’s request was granted and he was
detailed to the BMC’s in-plant support group,
where he performed various computer-related
duties. During this time, Ozlowski was taking a
number of medications which caused him to
occasionally fall asleep at work. Although he
never requested any particular accommodations
while he worked at the BMC, postal officials were
aware that Ozlowski had orthopedic problems and
other ailments.
In early 1996, the Postal Service informed
Ozlowski that his temporary detail at the BMC
would be terminated and told him to report to his
permanently assigned position at Fox Valley. It
was at this time that Ozlowski informed the
Postal Service of his limitations due to his
worsened medical condition and specifically asked
for a reasonable accommodation. According to one
of Ozlowski’s treating physicians, Ozlowski could
only work in sedentary occupations, could not
stand, walk, squat, stoop or kneel for prolonged
periods of time and could not drive for more than
20 or 30 minutes at a stretch.
On January 18, 1996, he wrote a letter to John
Wawrzyniec, a plant manager at the BMC, Ann
O’Banner, a plant manager at Fox Valley, and
Cynthia Kellogg, a human resources manager,
requesting that his temporary detail at the BMC
be continued indefinitely because of his medical
condition. On February 7, 1996, he wrote to Wally
Zobel, a manager at the BMC, requesting a
transfer to that facility. He also wrote
additional letters to Ann O’Banner, first
notifying her that he would not be able to report
to work there and next requesting paid medical
leave based on his physical limitations.
During this time, Ozlowski underwent two knee
replacement surgeries, the left knee in March,
1996 and the right knee in May, 1996. Although
his doctors said he could return to work with
limitations, Ozlowski never returned to work with
the Postal Service after these surgeries.
On July 19, 1996, O’Banner wrote to Ozlowski
presenting him with four options: (1) disability
retirement, (2) regular retirement, (3)
reassignment to another position, and (4)
voluntary termination. In response, Ozlowski
wrote to O’Banner on July 25, 1996 inquiring
about the status of his request for reasonable
accommodation, stating that "[a]s you are aware,
I requested reassignment to the Bulk Mail Center.
My request has been ignored." For her part,
O’Banner contacted Wawrzyniec and inquired about
the status of Ozlowski’s request. O’Banner
testified that she did not attempt to place
Ozlowski herself because he had informed her
that, based on his medical restrictions, he could
not travel the distance to Fox Valley. After
speaking with Ozlowski and receiving a note from
Wawrzyniec, she believed Ozlowski was going to
pursue disability retirement. Shortly thereafter,
in August 1996, Ozlowski did choose the first
option O’Banner had presented and applied for
disability retirement, which the Postal Service
granted effective October, 1996. On September 25,
1996, Ozlowski filed a formal complaint with the
Equal Employment Opportunity Commission and on
January 11, 1999, the EEOC issued its final
decision. Ozlowski then filed a complaint in
district court, which is the basis for the
present appeal.
II. Discussion
"We conduct de novo review of a district court’s
decision involving cross-motions for summary
judgment," Hendricks-Robinson v. Excel Corp., 154
F.3d 685, 692 (7th Cir. 1998), viewing all of the
facts, and drawing all reasonable inferences from
those facts, in favor of the nonmoving party. Id.
Summary judgment is proper if the record shows
that "there is no genuine issue as to any
material fact and that [a] moving party is
entitled to judgment as a matter of law." Id.
(quoting Fed.R.Civ.P. 56(c)). See also Celotex
Corp. v. Catrett, 106 S.Ct. 2548, 2552 (1986).
Ozlowski filed suit under the Rehabilitation Act
of 1973 claiming that the Postal Service had
failed to reasonably accommodate his physical
limitations. The Rehabilitation Act provides that
no "qualified individual with a disability . . .
shall, solely by reason of her or his disability,
be . . . subjected to discrimination . . . by the
United States Postal Service." 29 U.S.C. sec.
794(a). The standards used to determine whether a
violation of this section has occurred are those
used to interpret the Americans with Disabilities
Act ("ADA"). 29 U.S.C. sec. 794(d); Gile v.
United Airlines, Inc., 95 F.3d 492, 497 (7th Cir.
1996). The ADA defines "discrimination," in part,
as "not making reasonable accommodations to the
known physical or mental limitations of an
otherwise qualified individual with a disability
who is an . . . employee, unless such covered
entity can demonstrate that the accommodation
would impose an undue hardship on the operation
of business." 42 U.S.C. sec. 12112(b)(5)(A).
Reassignment to a vacant position is a form of
reasonable accommodation. 42 U.S.C. sec.
12111(9)(B). Federal regulations promulgated
under the ADA make clear, however, that an
applicant for a vacant position "must be
qualified for, and be able to perform the
essential functions of, the position sought with
or without reasonable accommodation." 29 C.F.R.
pt. 1630. app.
The ADA regulations also state that, to
determine the appropriate reasonable
accommodation, the employer may need to "initiate
an informal, interactive process with the
qualified individual with a disability in need of
the accommodation." 29 C.F.R. sec. 1630.2(o)(3);
Hansen v. Henderson, 233 F.3d 521, 523 (7th Cir.
2000) (employer has the burden of exploring with
the worker the possibility of a reasonable
accommodation). However, the failure to engage in
the interactive process by itself does not give
rise to relief. Rehling v. City of Chicago, 207
F.3d 1009, 1015-16 (7th Cir. 2000). Instead, we
must first look at whether there is a genuine
issue of material fact regarding the availability
of a vacant position to accommodate Ozlowski. If
there were such a position, only then do we
consider whether the failure to provide that
accommodation was due to a breakdown in the
interactive process. See Baert v. Euclid
Beverage, Ltd., 149 F.3d 626, 632 (7th Cir.
1998). It is the plaintiff’s burden to show that
a vacant position exists for which he was
qualified. Rehling, 207 F.3d at 1015; McCreary v.
Libbey-Owens-Ford Co., 132 F.3d 1159, 1165 (7th
Cir. 1997). The district court found that the
Postal Service was not liable for failure to
accommodate by reassignment because Ozlowski had
failed to submit evidence demonstrating that a
vacant position existed for which he was
qualified.
On appeal, Ozlowski argues that he identified
several open positions for which he was qualified
and that he could have performed regardless of
his limitations. In order to be "qualified," the
employee must "(1) satisfy the legitimate
prerequisites for that alternative position, and
(2) be able to perform the essential functions of
that position with or without reasonable
accommodations." Dalton v. Subaru-Isuzu
Automotive, Inc., 141 F.3d 667, 678 (7th Cir.
1998). Except as specifically discussed below,
Ozlowski does not provide any evidence of his
qualifications in comparison to the legitimate
prerequisites for any of the positions he
identified or any evidence that such positions
were vacant, other than his own conclusory
statements./1 Conclusory allegations and self-
serving affidavits, if not supported by the
record, will not preclude summary judgment.
Haywood v. North Am. Van Lines, Inc., 121 F.3d
1066, 1071 (7th Cir. 1997).
For example, Ozlowski contends that there was a
schemes analyst position for which he was
qualified. While that position was currently
filled on a temporary detail, Ozlowski believed
the person detailed to that position could have
been transferred to another position and he could
have then filled what would become a vacant spot.
Wawrzyniec testified in his deposition that he
did not believe Ozlowski could safely perform the
duties of a schemes analyst, which included
hanging and changing signs and climbing ladders.
Ozlowski contends that the Postal Service had
accommodated another employee by assigning her a
scooter and another employee to assist her and
that the Postal Service should have done the same
for him.
Even if we assume that the schemes analyst
position had been vacant,/2 given Ozlowski’s
physical limitations, he was not qualified for
the position. While it is true that an employer
may redistribute marginal functions of a job to
other employees, an employer is not required to
reallocate essential functions "that the
individual who holds the job would have to
perform, with or without reasonable
accommodation, in order to be considered
qualified for the position." 29 C.F.R. pt. 1630,
app. See Hansen, at 523-24; Malabarba v. Chicago
Tribune Co., 149 F.3d 690, 700 (7th Cir. 1998);
Cochrum v. Old Ben Coal Co., 102 F.3d 908, 912
(7th Cir. 1996).
As the district court noted, the bulk of a
schemes analyst’s job involves maintaining mail
sorting schemes and performing scheme changes.
This includes hanging and changing signs
indicating a change of schemes and climbing
ladders in order to place and replace the signs.
Given Ozlowski’s physical limitations, he could
not have performed these functions. Even if the
Postal Service made an accommodation to a
previous employee by assigning her a helper to
essentially perform her job, the Postal Service
was not required to do so for her and likewise
was not required to do so for Ozlowski.
Next, Ozlowski contends that a computerized
printout produced by the Postal Service in
response to interrogatories identifies a number
of vacant positions within his restricted
commuting area that were vacant in 1996. The
Postal Service now disputes whether this list
accurately identifies positions which were vacant
during 1996. However, even if we assume that the
list contains every position vacant during the
time period in which Ozlowski requested a
reasonable accommodation, he presented no
evidence, other than his own statements, that he
was qualified to perform any of these positions.
Lastly, Ozlowski contends that there was a
vacant mail flow controller position for which he
was qualified. This is his most persuasive
argument because Wawrzyniec admitted that the
position was vacant and that Ozlowski was
qualified to fill it. However, Wawrzyniec was
doubtful that Ozlowski could have climbed the
stairs to get to the work station and also
expressed concern that Ozlowski’s drowsiness
problem made it unsafe for him to perform the
job. Indeed, Wawrzyniec stated that he made no
attempt to find another place for Ozlowski after
his detail ended because he thought there were no
jobs that Ozlowski could safely perform.
Ozlowski argues that, if he had been asked, he
would have told Wawrzyniec that he no longer had
problems with drowsiness and could walk up the
necessary flights of stairs. Wawrzyniec admitted
that he did not ask Ozlowski in 1996 about his
drowsiness problem, about whether he was still
taking medications, or about whether he could
walk up the stairs.
While we think it would have been prudent for
Wawrzyniec to have communicated more effectively
with Ozlowski, there is an independent reason
that we decline to find that the Postal Service
failed to provide a reasonable accommodation.
Wawrzyniec stated that, while the mail-flow
controller position was vacant, there was an
informal hold on filling that position pending
the installation of a new computer system
nationwide which could change or even reduce job
requirements. We do not believe that a reasonable
accommodation means that an employer is required
to fill a position which, based on a reason
wholly independent of the employee’s disability,
it had chosen not to fill. Such a position is not
"vacant." Cf. Equal Employment Opportunity Comm’n
v. Humiston-Keeling, Inc., 227 F.3d 1024, 1028
(7th Cir. 2000) (ADA does not require employer to
reassign a disabled employee to a vacant position
where there is a better applicant, provided it is
the employer’s policy of giving vacant job to
best applicant). Even if Wawrzyniec had the
authority to fill the position regardless of the
informal hold, the position would have been
temporary until the arrival of a new computer
system. The Postal Service was not obligated to
place Ozlowski in such a position in order to
accommodate him. See McCreary, 132 F.3d at 1165
("Occasional opportunities to work in another
department are not equivalent to a vacancy for a
permanent position.").
Ozlowski also appeals the district court’s
denial of his cross-motion for summary judgment,
which was based on the ADA rather than on the
Rehabilitation Act. The ADA specifically excludes
government employers. 42 U.S.C. sec.
12111(5)(B)(i). Nevertheless, since
Rehabilitation Act claims are analyzed under the
same standards as those used for ADA claims, the
district court considered Ozlowski’s arguments in
granting summary judgment for the Postal Service.
We do likewise and conclude that the district
court properly denied Ozlowski’s cross-motion.
III. Conclusion
Since Ozlowski failed to identify a vacant
position at the Postal Service for which he was
otherwise qualified, the district court properly
granted summary judgment under the Rehabilitation
Act of 1973. Accordingly, we affirm.
/1 Wawrzyniec did admit in his deposition that there
were some positions for which he thought Ozlowski
had the technical skills, but there is no
evidence that these positions were vacant.
/2 We note that an employer is not required to bump
a current employee in order to provide reasonable
accommodation. See Gile v. United Airlines, Inc.,
95 F.3d 492, 499 (7th Cir. 1996). We also note
that, at the time of his deposition in September,
1998, Ozlowski believed the same person still
occupied the position he desired.