In the
United States Court of Appeals
For the Seventh Circuit
No. 99-3415
Equal Employment Opportunity Commission,
Plaintiff,
and
MICHAEL NICOSIA,
Intervening Plaintiff-Appellant,
v.
YELLOW FREIGHT SYSTEM, INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 C 2725--Charles P. Kocoras, Judge.
Argued APRIL 4, 2000
Re-argued En Banc NOVEMBER 29, 2000
Decided June 12, 2001
Before FLAUM, Chief Judge, POSNER, COFFEY,
EASTERBROOK, RIPPLE, MANION, KANNE, ROVNER,
DIANE P. WOOD, EVANS, and WILLIAMS, Circuit
Judges.
COFFEY, Circuit Judge. On May 4, 1998,
the Equal Employment Opportunity
Commission (EEOC) filed a single count
complaint in the Northern District of
Illinois against the Defendant-Appellee
Yellow Freight System, Inc., alleging
violations of the Americans with
Disabilities Act based on Michael
Nicosia’s, an employee of Yellow Freight,
HIV/AIDS disability./1 Specifically, the
EEOC alleged that Yellow Freight
terminated Nicosia because of his AIDS
related cancer and in retaliation for
Nicosia’s filing of a complaint with the
EEOC. Upon the defendant’s motion, the
district court granted summary judgment
in favor of Yellow Freight. We affirm.
I. BACKGROUND
Nicosia began his career with Yellow
Freight in August of 1990 as a dockworker
at the company’s Chicago Ridge, Illinois,
Terminal. At that time, Yellow Freight, a
trucking services company, employed some
550 dockworkers who loaded and unloaded
freight trailers, checked the pieces
count, and weighed shipments. Initially,
Nicosia was a "casual worker" for the
company. As a casual worker, Nicosia
served as an on-call replacement
worker./2
In February 1991, Nicosia was elevated
to a full-time dockworker./3 As a full-
time dockworker at the Chicago Ridge
Terminal, Nicosia was supervised by
Gerald Sendziol. Sendziol was responsible
for making decisions at the terminal with
respect to leaves of absence and whether
or not to terminate a particular
employee.
It is important to note that Yellow
Freight has a five-step progressive
discipline procedure to deal with
employees who accumulate numerous and
excessive absences./4 Pursuant to the
system, an employee who violates the
company’s attendance policy would be
subject to the following five steps: 1) a
coaching session; 2) a letter of
information; 3) a written warning; 4)
suspension; and finally 5)
termination./5 It is undisputed that
since 1992 Yellow Freight has terminated
over 90 employees pursuant to its
progressive disciplinary system for
excessive absenteeism./6
To say that Nicosia’s attendance record
was woeful is somewhat of an
understatement. In 1991, Nicosia’s first
year as a full-time employee with Yellow
Freight, he was scheduled to work 113
days, but left work early two times for
illness and called in sick thirty-seven
times./7 In 1992, his work attendance
record was not much better when, out of
171 scheduled work days, he left work
early because of an illness on one
occasion, and took three personal days
and twelve sick days. In the following
year, Nicosia was absent from work more
than half of the 242 days that he was
assigned to work (126 absences for
illness, left work early four times, and
three unexcused absences). In 1994, out
of 227 scheduled work days, he took
another forty-seven sick days, left work
early three times, and had three
unexcused absences.
In November of 1995,/8 Nicosia called
Sendziol and told his supervisor that he
needed time-off for an unspecified
medical problem. Sendziol told him that
he was ineligible for family and medical
leave, but that he could take a 90-day
unpaid leave of absence. Presumably
because Nicosia did not want to be gone
that long, he decided to call in sick for
the next two weeks.
In December 1995, Nicosia was diagnosed
as HIV positive. In January 1996,
Nicosia’s condition deteriorated and he
was diagnosed with Kaposi’s sarcoma, an
AIDS-related cancer. On January 12, 1996,
Nicosia sent a letter to Sendziol
informing the company of his medical
condition.
After being diagnosed with Kaposi’s
sarcoma, Nicosia’s work attendance
plummeted even further in 1996. In fact,
he called in sick every working day
during the months of January, February,
and March. As a result of Nicosia’s poor
attendance, Yellow Freight initiated its
progressive disciplinary system.
On June 14, 1996, the company initiated
step one (coaching session) with Nicosia.
On June 24, 1996, the company sent
Nicosia a letter of information (step
two). Nicosia responded to the letter of
information with the following letter
addressed to Sendziol and dated June 26,
1996:
I had advised you of my terminal illness
on January 12, 1996 by messenger service.
I have rights due to this illness under
the Americans with Disabilities Act.
Every time I have been off work due to
illness, my doctor has faxed you medical
documentation.
After another series of absences, Yellow
Freight issued a written warning (step
three) on July 15, 1996. Nicosia
responded with a letter stating that he
had been diagnosed with cancer.
The company then sent Nicosia an ADA
accommodation review form along with a
letter stating that Yellow Freight
understood that Nicosia was requesting an
accommodation under the ADA. The form
required that Nicosia list his condition,
describe the accommodation, if any, he
was requesting, and to identify his
treating physicians and medical
providers.
Despite receiving the form, Nicosia
failed to comply and fill it out.
Instead, he returned the uncompleted form
along with a letter. In the letter,
Nicosia stated that he was "requesting no
particular considerations at this time
other than the resources necessary to
perform my job and reasonable
accommodations necessary to monitor and
maintain my health status." He also
stated that he wanted "sick days, if
needed[,] without being penalized."
Finally, he stated that he was "working"
to perform the responsibilities and
duties of a dockworker.
After Nicosia missed 10 out of the next
19 calendar days, the company proceeded
to step four and suspended Nicosia for
one day on August 5, 1996. In response to
the suspension, Nicosia sent a letter
promising to "report to work every day to
fulfill my duties."
On October 15, 1996, Nicosia filed
charges with the EEOC claiming that
Yellow Freight had disciplined him
because of his disability and also that
it had denied him a reasonable
accommodation. As noted earlier, the
company terminated Nicosia on December
16, 1996, for excessive absenteeism./9
Following his termination, Nicosia filed
a second charge with the EEOC alleging
that he had requested an accommodation,
had been denied an accommodation, and
that he was illegally discharged. He also
alleged that Yellow Freight had
retaliated against him for filing his
October 15th EEOC charges.
On May 4, 1998, the EEOC filed suit
against Yellow Freight claiming that the
freight company had discriminated against
Nicosia in violation of the ADA and,
furthermore, that it had retaliated
against Nicosia for his filing of a
complaint with the Commission. As
mentioned before, Nicosia intervened in
the suit.
On August 12, 1999, the trial judge
granted summary judgment in favor of
Yellow Freight and concluded that: 1)
Nicosia was not a "qualified individual"
under the ADA; 2) regular attendance at
the job site was an "essential function
of Nicosia’s job"; 3) Nicosia’s request
for "sick days, if needed[,] without
being penalized" was not reasonable as a
matter of law; and 4) there was no causal
connection between Nicosia’s filing of an
EEOC complaint and his termination.
Nicosia, not the EEOC, appeals.
II. ANALYSIS
The ADA mandates that:
No covered entity shall discriminate
against a qualified individual with a
disability because of the disability of
such individual in regard to job
application procedures, the hiring,
advancement, or discharge of employees,
employee compensation, job training, and
other terms, conditions, and privileges
of employment.
42 U.S.C. sec. 12112(a). The law also
requires that "[t]he plaintiff bears the
burden of proof on the issue of whether
he is a ’qualified individual’ under the
ADA." Nowak v. St. Rita High Sch., 142
F.3d 999, 1003 (7th Cir. 1998).
Furthermore, to establish a prima facie
case under the ADA, Nicosia must
demonstrate that he is "an individual
with a disability who, with or without
reasonable accommodation, can perform the
essential functions of the employment
position that such individual holds or
desires." 42 U.S.C. sec. 12111(8); see
Feldman v. American Mem’l Life Ins. Co.,
196 F.3d 783, 789-90 (7th Cir. 1999).
Thus, the critical question is whether an
"essential function" of Nicosia’s regular
full-time position with Yellow Freight
was regular attendance, and if so, did he
fulfill that "essential function." Also,
the fact that [Yellow Freight] had
infinite patience [with regard to
Nicosia’s poor attendance] does not
necessarily mean that every company must
put up with employees who do not come to
work. Nor must every company hire
replacements for absent employees and
call that a reasonable accommodation. The
issue before us is, when is enough,
enough?
Waggoner v. Olin Corp., 169 F.3d 481, 484
(7th Cir. 1999).
At the outset, let us be clear that our
court, and every circuit that has
addressed this issue, has held that
in most instances the ADA does not
protect persons who have erratic,
unexplained absences, even when those
absences are a result of a disability.
The fact is that in most cases,
attendance at the job site is a basic
requirement of most jobs. As the Tyndall
court put it:
[A]n evaluation of the quality of
Tyndall’s performance does not end our
inquiry. In addition to possessing the
skills necessary to perform the job in
question, an employee must be willing and
able to demonstrate these skills by
coming to work on a regular basis. Except
in the unusual case where an employee can
effectively perform all work-related
duties at home, an employee "who does not
come to work cannot perform any of his
job functions, essential or otherwise."
Id. at 484-85; see also Jovanovic v. In-
Sink-Erator, 201 F.3d 894, 899-90 (7th
Cir. 2000); Corder v. Lucent Techs.,
Inc., 162 F.3d 924, 928 (7th Cir. 1998);
Haschmann v. Time Warner Entm’t Co.,
L.P., 151 F.3d 591, 602 (7th Cir. 1998);
Nowak, 142 F.3d at 1003; accord Nesser v.
Trans World Airlines, Inc., 160 F.3d 442,
445 (8th Cir. 1998); Rogers v. Int’l
Marine Terminals, Inc., 87 F.3d 755, 759
(5th Cir. 1996); Lyons v. Legal Aid
Soc’y, 68 F.3d 1512, 1516 (2d Cir. 1995);
Tyndall v. Nat’l Educ. Ctrs., 31 F.3d
209, 213 (4th Cir. 1994); Carr v. Reno,
23 F.3d 525, 530 (D.C. Cir. 1994).
Specifically, this circuit has held that
We think it [is] fair to conclude that in
most instances the ADA does not protect
persons who have erratic, unexplained
absences, even when those absences are a
result of a disability. The fact is that
in most cases, attendance at the job site
is a basic requirement of most jobs.
Waggoner, 169 F.3d at 484. While Waggoner
made clear that "[w]e are not
establishing a hard-and-fast rule that no
absences from work need be tolerated," it
also made clear that no business is
"obligated to tolerate erratic,
unreliable attendance." Id. at 485
(citing Haschmann, 151 F.3d at 601).
Indeed,
the absence of employees is disruptive to
any work environment. However, it is not
the absence itself but rather the
excessive frequency of an employee’s
absences in relation to that employee’s
job responsibilities that may lead to a
finding that an employee is unable to
perform the duties of his job.
Haschmann, 151 F.3d at 602. In Jovanovic,
201 F.3d at 899-90, this court dealt with
a case similar to the one at hand:
Common sense dictates that regular
attendance is usually an essential
function in most every employment
setting; if one is not present, he is
usually unable to perform his job. This
is especially true in factory positions,
such as Jovanovic’s, where the work must
be done on the employer’s premises;
maintenance and production functions
cannot be performed if the employee is
not at work.
Nicosia’s employment with Yellow Freight
is similar to the factory worker in
Jovanovic in that his job as a forklift
driver "must be done on the employer’s
premises." Id. And, it is undisputed that
"the ability to maintain good attendance"
and the ability "to work on" available
shifts "plus any required overtime" were
listed as "minimum qualifications" in the
Yellow Freight material given to all
employees, including Nicosia, describing
the full-time dockworker position.
Furthermore, it is undisputed that
Nicosia was a full-time employee and not
a casual, temporary, part-time,
orsubstitute employee, nor did he ever
have the discretion or the right to
decline work when he chose to do so.
While Nicosia began his employment with
Yellow Freight as a part-time employee,
he was elevated to a full-time position
as the result of seniority, training, and
experience, and had an assigned,
definite, and specific work schedule.
A. Qualified Individual
Turning to the question of whether
Nicosia was fulfilling the essential
requirements of his job (regular job
attendance), the undisputed facts reveal
that he was not. As previously
discussed, the record reflects that
Nicosia was disciplined by Yellow Freight
(as were some 90 chronically absent
employees before him) well before he
informed Yellow Freight that he had been
diagnosed with AIDS-related cancer on
January 12, 1996. In fact, from 1991
through 1993, his employer warned Nicosia
on six separate occasions that his work
attendance record was not only
substandard but also unacceptable.
Furthermore, in 1994 and 1995, Nicosia
received four "coaching sessions" and
five letters (three letters of
information and two written warnings) re
garding his pattern of excessive
absenteeism. Because the company had a
policy of allowing workers to start at
step one if they completed nine months of
continuous employment without receiving a
disciplinary action, there were few
opportunities for Yellow Freight to
initiate steps four (suspension) and five
(termination) before 1996.
The unchallenged record in this case
reflects that Yellow Freight bent over
backwards to accommodate Nicosia in spite
of his long history of poor work
attendance. Nicosia was repeatedly warned
and reprimanded, and given numerous
opportunities to improve his work
attendance record. It was Nicosia’s
woeful attendance record that forced
Yellow Freight into the position that it
could no longer justify Nicosia’s
employment.
As we have stated in a number of
discrimination cases, "our role is not to
second guess the business decisions of a
company and inquire as to whether the
goals set by management demand ’too much’
from its employees, nor to make things
less difficult for those who come before
us, regardless of the law." Robin v. Espo
Eng’g Corp., 200 F.3d 1081, 1091 (7th
Cir. 2000) (citation and internal
quotations omitted). After reviewing the
record and considering Nicosia’s poor
attendance record, we are convinced that
Nicosia was unable to, and failed to,
satisfy his burden of establishing that
he is a "qualified individual" under the
ADA. We thus hold that Yellow Freight is
entitled to summary judgment.
B. Reasonable Accommodation
With respect to the question of
reasonable accommodation, Nicosia, in an
August 1, 1996 letter to Yellow Freight,
stated that he was requesting "no
particular considerations at this time
other than the resources necessary to
perform my job and reasonable
accommodations necessary to monitor and
maintain my health status, which would
include sick days, if needed[,] without
being penalized." Here again, the
employee has the burden of "produc[ing]
sufficient evidence to establish a
genuine issue of material fact as to his
ability to perform the essential
functions of the job with reasonable
accommodation." Bombard v. Fort Wayne
Newspapers, Inc., 92 F.3d 560, 564 (7th
Cir. 1996).
This court has held that similar
requests for unlimited "sick days, if
needed[,] without being penalized," are
not reasonable as a matter of law. See,
e.g., Waggoner, 169 F.3d at 485 (denying
a request for an accommodation for unlim
ited time off by a production employee
who was absent or tardy forty times in
her 20-month tenure). Additionally,
businesses are "not obligated to tolerate
erratic, unreliable attendance or to
provide an accommodation which would
impose an undue hardship on the
business." Id. As this court has stated,
[w]e do not dispute that a business needs
its employees to be in regular attendance
to function smoothly; the absence of
employees is disruptive to any work
environment. However, it is not the
absence itself but rather the excessive
frequency of an employee’s absences in
relation to that employee’s job
responsibilities that may lead to a
finding that an employee is unable to
perform the duties of his job.
Haschmann, 151 F.3d at 602.
It is interesting to note that Yellow
Freight, in an attempt to alleviate
Nicosia’s work attendance problems,
offered Nicosia an opportunity to take a
90-day leave of absence (which he refused
to accept), and followed-up by sending
him an ADA accommodation review form
(which he refused to fill out). Nicosia
responded to this attempt by sending a
certified letter, including the
uncompleted accommodation form, stating
that he had received the accommodation
form and was requesting, as stated
before, an open-ended, unlimited amount
of "sick days, if needed[,] without being
penalized." According to Nicosia, he
refused to complete the accommodation
form because he "was requesting . . .
sick time due to . . . illness, and
really didn’t see that on [the] form" and
thought the letter he sent in response
"would explain more."
In Jovanovic, 201 F.3d at 899 n.9, this
court noted that
the only imaginable accommodation would
be an open- ended schedule that would
allow Jovanovic to come and go as he
pleased. We would be hard-pressed to
imagine a manufacturing facility that
could operate effectively when its
employees are essentially permitted to
set their own work hours, and we thus
reject such a schedule as an unreasonable
accommodation under the circumstances of
this case. See Waggoner v. Olin Corp.,
169 F.3d 481, 485 (7th Cir. 1999)
(holding "as a matter of law" that
employee’s desire "to miss work whenever
she felt she needed to and apparently for
so long as she felt she needed to" was
not a reasonable accommodation for
someone employed as a production worker).
Additionally, this court recently noted
that a plaintiff
requested several accommodations,
including "an ’unpredictable’ amount of
time off from work should her symptoms so
demand." Then she took paid
administrative leave and also one year of
benefits under the company’s Sickness &
Accident Disability Plan. Finally, when
she cut short another independent medical
evaluation, she was fired. These facts,
it should come as no surprise, easily led
us to conclude that [plaintiff] was not a
qualified individual with a disability
under the ADA.
Waggoner, 169 F.3d at 484 (discussing
Corder, 162 F.3d at 924). In any event,
we are of the opinion that under the
established law of this circuit, Yellow
Freight’s efforts during the
"accommodation process" were sufficient,
especially given Nicosia’s unreasonable
request for unlimited time off.
The district court properly found that
Yellow Freight’s efforts at interacting
with Nicosia regarding a "reasonable
accommodation" were sufficient:
Sendziol in fact discussed with Nicosia
the possibility of a 90-day medical
leave, but Nicosia was unhappy with that
option. Eventually Yellow Freight sent to
Nicosia a 2-page Accommodation Review
Form, which sought medical information
and Nicosia’s perspective on an
appropriate accommodation. In response to
Yellow Freight’s accommodation inquiry,
Nicosia wrote that he wanted "no
particular considerations at this time
other than . . . sick days, if needed,
without being penalized."
This certainly is the beginning of the
reasonable accommodation process, and was
only met with unmanageable demands on the
part of Nicosia. We refuse to force
employers to the negotiating table in the
face of demands of this nature, and hold
that Yellow Freight fulfilled its burden
under the law, especially in light of the
fact that Nicosia had fashioned a poor
attendance record for himself well before
he was diagnosed with AIDS. For as we
have explained, "[a]n employer is not
obligated to provide an employee the
accommodation he requests or prefers, the
employer need only provide some
reasonable accommodation." Gile v. United
Airlines, Inc., 95 F.3d 492, 499 (7th
Cir. 1996).
To hold otherwise would unreasonably
expand the reaches of the ADA and ignore
the plaintiff’s burden to demonstrate
that he is a "qualified individual."
Although the plaintiff’s medical
condition is most unfortunate, we are
convinced that Nicosia does not have a
remedy under the ADA. As this court
stated in Waggoner, 169 F.3d at 484:
[r]ather than attempting to show that
[he] is a qualified individual, however,
[Nicosia] seems to want to turn the ADA
on its head. It is as if [he] thinks that
rather than ensuring that [he] be allowed
to work, the ADA requires [Yellow
Freight] to provide [him] with a job but
not require that [he] regularly perform
it. Rather, [Yellow Freight] must hire
another employee to do the job for [him]
while [he] remains a full-time employee.
The Act does not go so far. The ADA
protects an important, but finite,
universe of people.
C. Retaliation Claim
Nicosia next claims that Yellow Freight
retaliated against him for filing an EEOC
complaint in October of 1996. "A prima
facie case of retaliation is made when
the plaintiff shows that (1) he engaged
in statutorily protected expression; (2)
he suffered an adverse action by his
employer; and (3) there is a causal link
between the protected expression and the
adverse action." Rabinovitz v. Pena, 89
F.3d 482, 488 (7th Cir. 1996) (citing
Brenner v. Brown, 36 F.3d 18, 19 (7th
Cir. 1994)). Because Nicosia clearly
engaged in protected expression by filing
the EEOC complaint, only the last two
elements of the prima facie case are at
issue.
The district court concluded that the
evidence in the record failed to
demonstrate that Sendziol, the person who
discharged Nicosia, was aware of the fact
that Nicosia had filed an EEOC charge.
Additionally, the judge found that the
temporal link between the charges and the
firing was insufficient to establish
liability.
With respect to Sendziol’s knowledge
that Nicosia had filed an EEOC charge,
the only evidence in the record is
Nicosia’s own (and late) affidavit. In
his affidavit, Nicosia asserted that he
had passed out approximately 20 copies of
his EEOC complaint to his co-workers and
that he mailed copies of the complaint to
Sendziol and to the president of Yellow
Freight./10
The problem with Nicosia’s affidavit is
that it was filed late and that it
contradicted testimony he gave in an
earlier deposition. In his deposition,
Nicosia stated that he told John Peterson
about the charges and that Peterson told
Marilyn Brewer. Nicosia was then asked:
"Who, if anyone, else besides John
Peterson did you tell or inform that you
had filed an EEOC charge with [sic]
Yellow Freight?" In response to the
question, Nicosia answered that he
thought he had also told Jeff Kuchan and
George Hagle. Nicosia never mentioned
Sendziol.
"As a general rule, the law of this
circuit does not permit a party to create
an issue of fact by submitting an
affidavit whose conclusions contradict
prior deposition or other sworn
testimony." Buckner v. Sam’s Club, Inc.,
75 F.3d 290, 292 (7th Cir. 1996). The
affidavit, as applied to Sendziol, falls
squarely within our rule.
The question at the deposition clearly
invited Nicosia to list anyone else whom
he had told about the EEOC complaint.
Furthermore, he obviously understood that
this was his chance to offer additional
names because he named Peterson and
Brewer. The fact that he did not include
Sendziol as a person whom he had informed
about his EEOC charge makes his
affidavit, in which he claims he informed
Sendziol of the EEOC charge,
contradictory. Therefore, the district
court had no obligation to consider it.
Id. Finally, we agree with the district
court that the temporal proximity of
Nicosia’s termination with his filing of
an EEOC charge (some six weeks) is
insufficient to establish retaliation.
See, e.g., Foster v. Arthur Andersen,
LLP, 168 F.3d 1029, 1034 (7th Cir. 1999);
Bermudez v. TRC Holding, Inc., 138 F.3d
1176, 1179 (7th Cir. 1998); Hughes v.
Derwinski, 967 F.2d 11687, 1174-75 (7th
Cir. 1992).
The decision of the district court is
AFFIRMED.
FOOTNOTES
/1 Nicosia intervened in the district court action
as a party plaintiff pursuant to Fed. R. Civ. P.
24(a).
/2 Yellow Freight used its casual workers if the
workload on a particular day required additional
workers or if its regular workers were sick, on
vacation, or on disability leave.
/3 As a full-time dockworker, Nicosia received
several benefits, including vacation and sick
leave, as well as pension payments.
/4 The dissent suggests that we have accepted Yellow
Freight’s word that such a policy existed and for
the content of that policy. But we do not see the
content of the attendance policy as in dispute.
Indeed, it is interesting to note that the dis-
sent itself recites the same five-step progres-
sive discipline policy that we outline here.
/5 Employees were able to start at step one if they
were able to complete nine months of continuous
work without a disciplinary step being taken.
/6 The dissent suggests that because the record
contains no detailed information about the rea-
sons why particular employees’ absences were
deemed excessive that no inferences can be drawn
from the fact that the policy was used. In
support the dissent hypothesizes that if Yellow
Freight had disciplined only members of one
racial group and forgiven all others that it
could not say it was enforcing its policy in an
even-handed manner. Strangely though the record
contains no evidence that Yellow Freight system-
atically applied the attendance policy in a
discriminatory fashion--and Nicosia does not make
such a claim. In any event, the fact that Yellow
Freight did terminate over 90 employees pursuant
to the attendance policy is evidence that the
policy did exist and that Yellow Freight did take
attendance problems seriously.
/7 The number of days that Nicosia was scheduled to
work and the number of his absences do not
include vacation days, jury duty, the five annual
paid sick days that he is afforded under the
collective bargaining agreement, nor his count-
less worker’s compensation absences. However, for
the record, Nicosia accumulated a total of 294
worker’s compensation days from 1991 through
1996.
/8 For the record, his work attendance did not
improve in 1995; out of the 181 scheduled work
days, he called in sick fifty times, left work
early three times, and had one unexcused absence.
/9 While Nicosia was terminated on December 16, 1996
for excessive absenteeism, he was ordered rein-
stated by an arbitrator (without back pay or
benefits), and was a Yellow Freight employee at
the time this case was orally argued.
/10 Nicosia attached copies of the letter to the
president, the U.S. Postal Service certified mail
receipt, and the fax confirmation sheet to this
affidavit.
DIANE P. WOOD, Circuit Judge, with whom RIPPLE,
ROVNER, and WILLIAMS, Circuit Judges, join, dissent-
ing in part and concurring in part. It is
curious that the full court decided to hear this
case en banc, given the fact that there is no
significant disagreement among us on the govern-
ing legal principles. Here, this court has been
asked to review a district court’s decision to
grant summary judgment for an employer, Yellow
Freight System, Inc., in a case brought under the
Americans with Disabilities Act, 42 U.S.C. sec.
12101 et seq. Normally in such a case, when a
panel studies a record and concludes either that
it does or it does not present genuine issues of
material fact warranting trial, that is the end
of the matter unless the full court is concerned
about the broader legal principles the case
involves. Here we have not followed that prac-
tice. As I hope to make clear in this dissent, I
have little quarrel with the broad outline of the
legal rules governing the ADA that the majority
has recited. Its presentation of the facts in
this record, however, contains serious omissions.
When the full record is taken into account, I
respectfully submit that it demonstrates that the
plaintiff-intervenor, Michael Nicosia, was enti-
tled to a trial on his ADA discrimination claim
and his ADA accommodation claim. I agree with the
majority that he failed to present enough to
survive summary judgment on the retaliation
claim, and I thus concur in that part of its
judgment.
I
At the risk of repetition, I believe it is
necessary to re-state the facts that were before
the district court for purposes of the summary
judgment motion, so that the full context of
Nicosia’s claim can be appreciated. As the major-
ity points out, Nicosia was a dockworker with the
misfortune of first discovering that he was HIV
positive, and later developing symptoms of full-
blown AIDS. His employer Yellow Freight fired him
at the end of 1996, after a series of exchanges
about his serious problems with absenteeism and
the accommodations he might need because of his
medical condition. Our task at this time is to
decide whether, taking the facts in the light
most favorable to Nicosia, a trier of fact could
ultimately find that Yellow Freight was behaving
in a discriminatory manner when it terminated
Nicosia or that it failed to comply with its ADA-
based duty to accommodate him. Given the major-
ity’s opinion, it is also important to stress
that Nicosia does not have the burden of showing
that the trier of fact inevitably would find for
him. Neither he nor most summary judgment oppo-
nents could sustain such a burden. I thus do not
disagree with the majority that under one permis-
sible view of the facts the trier of fact might
also find for Yellow Freight. My only point here
is that there are genuinely disputed material
facts that the majority has overlooked or assumed
away.
As we know, Nicosia began his job as a dock-
worker for Yellow Freight in August 1990, in the
Chicago Ridge Terminal, in the "casual worker"
category. Yellow Freight used its casual workers
in a variety of circumstances: when the workload
was heavy, or when its regular workers were sick,
on vacation, or on disability leave. The need for
casuals varied widely from day to day--one day
none might be necessary, and the next the company
might need 40. In February 1991, he became a
full-time dockworker, working under the supervi-
sion of Chicago Ridge Terminal Operations Manager
Gerald Sendziol. Sendziol was responsible for
making decisions at the terminal with respect to
leaves of absence, and he also had the authority
to fire unsatisfactory employees.
My first quarrel with the majority’s portrayal
of the facts concerns Yellow Freight’s alleged
attendance policy. Not only does the majority
assume that such a policy existed, but it also
accepts Yellow Freight’s word for what the con-
tent of that policy was. The facts underlying
those assumptions are, however, disputed in this
particular case. Before proceeding with a sub-
stantive analysis of Nicosia’s case, therefore,
we must look at the facts in the record that
pertain to exactly what policy Yellow Freight had
with respect to absences for its regular dock-
workers. We must consider those facts, as all
facts on summary judgment, in the light most
favorable to Nicosia, the non-moving party.
Krocka v. City of Chicago, 203 F.3d 507, 513 (7th
Cir. 2000).
Here is what the summary judgment evidence
showed. The collective bargaining agreement
("CBA") between Yellow Freight and its regular
employees provided that employees would be enti-
tled to five paid sick days per year. In addi-
tion, the CBA provided for family and medical
leave of up to a total of twelve weeks on unpaid
leave for employees who had worked for the compa-
ny a minimum of 12 months and 1250 hours during
the prior 12-month period. The CBA also allowed
employees to apply for leaves of absence that
could last up to 90 days, with the possibility of
extensions "for like periods." The CBA set no
minimum number of days for a leave of absence,
although the record indicated that Sendziol told
Nicosia that there was a 90-day minimum. When an
employee was out on a leave of absence, Yellow
Freight filled in using both its casual workers
and the bottom 10 percent of its seniority list.
Thus, construing the CBA favorably to Nicosia,
it was easily possible for someone to be absent
well in excess of the five days of paid sick
leave. Furthermore, Nicosia presented additional
testimony that the majority has ignored that
showed that Yellow Freight’s approach to atten-
dance was far from strict. While, as the majority
points out, Yellow Freight had a five-step disci-
plinary process, it had no objective written
attendance policy that indicated what number or
constellation of absences would lead to particu-
lar types of discipline. At the Chicago Ridge
Terminal, it was entirely within Sendziol’s
discretion to determine when a particular employ-
ee’s absences became "excessive" and how rapidly
to proceed through the disciplinary process. The
record (including Nicosia’s own sporadic atten-
dance and disciplinary history prior to 1996,
discussed infra) forecloses concluding at this
stage that Sendziol exercised his discretion
according to any particular objective criteria,
such as, for example, whether the employee had
multiple intermittent absences or an individual
longer-term absence. As his own deposition testi-
mony indicates, Sendziol decided how to handle
individual employees’ absences on an essentially
ad hoc basis. After explaining that "[e]ach case
is by itself," he gave as an example a man with
a broken leg, who might need far more than the
five days mentioned in the CBA-- as he put it,
such a worker would need to be "off for whatever
length of time." Another example he gave was of
a man with pneumonia, for whom he indicated that
a three-week leave would be acceptable. Sendziol
decided whether absences were excessive and what
if any disciplinary action was appropriate based
on his assessment of the nature of the particular
employee’s problem.
Yellow Freight used its five-step progressive
discipline system to deal with employees whose
absences, according to these highly subjective
criteria, were excessive. As the majority notes,
the steps were (1) a coaching session, (2) a
letter of information, (3) a written warning, (4)
suspension, and finally (5) termination. Employ-
ees were able to start afresh with these five
steps, however, if they were able to complete
nine months’ work since the last discipline
without a new measure being taken. The record
indicated that since 1992, over 90 employees had
been terminated for excessive absenteeism, but it
contained no information about why particular
employees’ absences had been deemed excessive.
This lack of detail makes it impossible to draw
any inferences from the fact that the policy was
used. If, to take a purely hypothetical example,
Yellow Freight had terminated only members of one
racial group for absenteeism, and it had forgiven
similar attendance records in other employees,
its actions would obviously not suggest that it
was enforcing its attendance policy in an even-
handed manner. The same is true here: while it
may have terminated over 90 employees over the
years, we have no way of knowing whether those
terminations were without regard to the type of
disability that is now protected by the ADA. Only
if the record showed that the terminations were
nondiscriminatory would this be useful evidence.
Nicosia had a poor attendance record, but his
problems did not prompt Yellow Freight to move
beyond step 3 of its progressive disciplinary
policy until after he informed Sendziol that he
was ill. The majority comments, ante at 10, that
Yellow Freight’s policy of erasing earlier disci-
plinary actions if an employee completed nine
months of continuous action without a new infrac-
tion meant that it had "few opportunities" to
initiate steps 4 and 5 before 1996. That may be
one way of looking at this evidence, but it would
be equally possible for a trier of fact to
consider that it meant that Nicosia managed
somehow to comply with Yellow Freight’s rules for
significant periods of time, and thus to re-start
the clock for disciplinary purposes. In either
case, no one disputes that Nicosia was out for
substantial periods of time every year that he
was employed by Yellow Freight. These absences
were a mix of sick days, workers’ compensation
leave, personal days, paid vacation, unexcused
absences, and "Company Convenience" days. ("Com-
pany Convenience" days were offered to employees
when there was not enough freight on a particular
shift to keep all employees busy.) Before he
informed the company of his illness, Nicosia
never received more than a written warning (step
3). Sendziol’s tolerance for his behavior did not
begin to change until November of 1995, when
Nicosia called Sendziol and told him that he had
a medical problem and needed some time off.
Sendziol told him that he was ineligible for
family and medical leave (for reasons that are
unclear), but that he could take a 90-day (un-
paid) leave of absence. Nicosia did not want to
be gone that long, so he decided just to call in
sick for two weeks.
In December 1995, Nicosia was provisionally
diagnosed as HIV positive; the diagnosis was
confirmed the next month, when he was also diag-
nosed with Kaposi’s sarcoma, which is a cancer
associated with AIDS. On January 12, 1996, Nico-
sia sent a letter to Sendziol. The letter in-
formed Sendziol that Nicosia’s health was "im-
pacted by the Human Immunodeficiency Virus."
Sendziol did not discuss the letter with Nicosia,
but he apparently talked about it with everyone
else at the terminal. The day he received the
letter, the news of Nicosia’s illness spread like
wildfire. Evidently embarrassed or concerned
about prejudice, Nicosia started a counter-rumor
that he was suffering from leukemia. Yellow
Freight does not contest the fact that he was
indeed HIV positive and suffering from AIDS-
related diseases.
Initially, Nicosia did not provide Yellow
Freight with medical documentation of his condi-
tion or information about his treatment or poten-
tial limitations. During the first three months
of 1996, however, he was frequently absent from
work because of his illness. (Indeed, his absenc-
es during the prior few years may also have been
related to his medical condition; although he was
not formally diagnosed with HIV and AIDS until
1995, his doctors stated that his symptoms were
such that he may have been suffering from the
disease for years preceding his diagnosis.)
Between January 1, 1996, and June 12, 1996,
Nicosia was absent more than half the time--all
or part of 90 days, not including his five days’
paid sick leave. He provided doctors’ notes
excusing these absences, although the notes did
not provide detailed descriptions of his condi-
tion, needs, or prognosis. Yellow Freight never
informed him that the notes were inadequate.
What Yellow Freight did do, equipped with the
knowledge that it had an HIV positive employee on
its hands, was to begin taking Nicosia through
the progressive disciplinary regime with a coach-
ing session (step 1) on June 14, 1996. Over the
following 10 calendar days, he was absent for all
or part of three days. He received a letter of
information (step 2) on June 24. On June 26,
Nicosia responded with the following letter to
Sendziol:
I had advised you of my terminal illness on
January 12, 1996 by messenger service. I have
rights due to this illness under the Americans
with Disabilities Act. Every time I have been off
work due to this illness, my doctor has faxed you
medical documentation.
In the three weeks following June 24, Nicosia was
absent ten more days. Yellow Freight promptly
responded with a written warning (step 3) on July
15. Nicosia replied with a letter indicating that
he had been diagnosed with cancer.
Nicosia’s letter prompted the human resources
department to think about the accommodations
requirement of the ADA. It gave an ADA accommoda-
tion review form to Sendziol, which he forwarded
to Nicosia on July 26, along with a letter
indicating that Yellow Freight understood Nico-
sia’s mention of his rights under the ADA to be
a request for accommodation. The form asked
Nicosia to indicate his condition and whether he
was requesting an accommodation, to describe the
accommodation he wanted, and to identify his
physicians and medical providers. The majority
correctly notes that Nicosia did not fill out the
form itself. But it implies that Nicosia stone-
walled the company, which leaves the wrong im-
pression about his response. Nicosia explained
that he was concerned about the fact that the
form did not list time off as an accommodation,
yet that was what he thought he needed. Instead
of filling out the actual piece of paper, he
thought it best under the circumstances to return
the form along with a letter to Yellow Freight
that basically answered the questions the form
had posed. In the letter, he said that he was
"requesting no particular considerations at this
time other than the resources necessary to per-
form my job and reasonable accommodations neces-
sary to monitor and maintain my health status."
(Emphasis added.) He also explained that the
accommodation he wanted "would include sick days,
if needed[,] without being penalized." Last, he
stated in the letter that he was "otherwise
healthy" and that he was able "to continue work-
ing to fulfill the responsibilities and perform
the duties" of a dockworker. He offered in the
letter to have his physician prepare a report
concerning his physical condition if Yellow
Freight so desired.
Out of the 19 calendar days following the July
15 written warning, Nicosia was absent 10. The
company accordingly proceeded to step 4 and on
August 5, 1996, it suspended him for one day.
Nicosia then sent a letter promising to "report
to work every day to fulfill my duties." At the
same time, his union filed a grievance challeng-
ing the suspension. On October 15, Nicosia filed
his charges with the EEOC claiming that Yellow
Freight had disciplined and suspended him because
of his disability and that it had denied him a
reasonable accommodation. He missed work five
more times between November 8 and December 15. On
December 16, 1996, Nicosia was terminated for
excessive absenteeism, and he filed another union
grievance challenging that action. Eventually the
matter went to arbitration and the arbitrator
ordered Nicosia reinstated in August 1997, albeit
with no back pay and no benefits. Nicosia re-
turned to work in September of that year, and as
of the time this case was briefed he was still a
Yellow Freight employee. After his termination,
Nicosia filed a second charge of discrimination
with the EEOC, in which he alleged that he had
requested an accommodation, he had been denied
accommodation, and he was then discharged.
II
A. Discrimination
Since the importance of attendance lies at the
heart of this case, I begin with some general
comments about that question. I agree entirely
with the majority that, as it points out ante at
8-9, regular attendance at the job is a legiti-
mate requirement for many positions. On the other
hand, as it concedes, this rule applies "in most
instances," Waggoner v. Olin Corp., 169 F.3d 481,
484 (7th Cir. 1999), or "usually," Jovanovic v.
In-Sink-Erator, 201 F.3d 894, 899-900 (7th Cir.
2000). The majority does not rely upon a single
case for the proposition that attendance is
always, invariably, as a matter of law, an essen-
tial job function. Even more importantly, I do
not understand it to be adopting such a rigid and
indefensible rule in the present case.
Each job carries with it different requirements,
and in certain out-of-the-ordinary situations
regular daily attendance may not be one of them.
For example, while regular attendance may be
crucial for a position as a high school teacher,
see Nowak v. St. Rita High School, 142 F.3d 999
(7th Cir. 1998), it would not necessarily be
important for someone who worked as a substitute
teacher. In exchange for the certain salary and
benefits regular teachers enjoy, substitutes may
have the flexibility of declining work when they
choose to do so. The same might be true of a
person whose job involved piecework to be done at
the home, who needed to report to the central
jobsite only to drop off completed work and to
pick up new projects. People who work for tempo-
rary help agencies may also not be obligated to
be available at every call; their only "penalty"
would be the lost income attributable to the
declined work. The question before us is whether
Nicosia has raised a genuine issue of material
fact on the question whether Yellow Freight’s
regular dockworker job was (a) one of the ordi-
nary jobs for which the company insisted on
regular attendance, or (b) one of the unusual
jobs for which regular attendance was not a sine
qua non.
In my opinion, Nicosia has succeeded in doing
so, both with respect to the existence of a
defined attendance policy at Yellow Freight and
with respect to the content of any such policy.
It is worth remembering that this court has
recognized in other cases that the existence or
content of a policy is sometimes a contestable
issue. See Piraino v. International Orientation
Resources, Inc., 84 F.3d 270 (7th Cir. 1996), and
Sarsha v. Sears, Roebuck & Co., 3 F.3d 1035 (7th
Cir. 1993). In Piraino, the employer argued that
it had terminated the employee in accordance with
an alleged policy governing pregnancy leave; we
found that the question whether such a policy
existed was disputed and could not be decided on
summary judgment. 84 F.3d at 275. In Sarsha,
where the employer asserted that it had fired its
employee pursuant to a company policy against
employee dating, not because of his age or gen-
der, we similarly found that existence of such a
policy and its content could not be assumed on
summary judgment. In this case, just as in Sarsha
and Piraino, "[w]hen the existence of a uniform
policy or practice is in doubt, it cannot serve
as a reason for discharging [the employee]." 3
F.3d at 1040.
The majority is quite correct to note that
Yellow Freight has pointed to evidence that, if
believed by the jury and given the weight Yellow
Freight thinks it deserves, would show that
attendance was indeed a requirement of the full-
time dockworker job and thus that failure to
maintain regular attendance was a legitimate,
nondiscriminatory reason for employee termina-
tions. But Nicosia has evidence on the other
side. He showed that the numbers of workers on
the dock varied greatly from day to day; that
workers were basically fungible with one another,
so that it did not matter who was doing the
loading and unloading on any particular day; that
Sendziol did not follow any fixed policy other
than to treat each case individually, giving very
lengthy leaves to people he found deserving; and
that his poor attendance was never an insurmount-
able problem until the company found out he was
HIV positive.
If the trier of fact believed Nicosia’s evi-
dence, it would find that Nicosia’s attendance
did not violate Yellow Freight’s actual policies.
Contrary to the majority’s view, such a holding
would be consistent with established precedent in
this circuit, as well as in the others. In
addition, the timing of Yellow Freight’s sudden
decision to escalate its response to Nicosia’s
problematic attendance from step 3 (where it had
always stopped before) to steps 4 and 5, at the
very moment when Nicosia revealed his illness--an
illness that the Supreme Court has recognized is
entitled to protection under the ADA, see Bragdon
v. Abbott, 524 U.S. 624, 632-42 (1998)--is suspi-
cious enough to indicate that Yellow Freight’s
stated reason for terminating him was pretextual.
I would therefore hold that Nicosia is entitled
to go forward with his basic claim of discrimina-
tion in violation of the ADA.
B. Accommodation
There also remains a question of fact regarding
who-- Yellow Freight or Nicosia--was responsible
for the breakdown in the accommodation process
required by the ADA. Both the employer and the
employee are responsible for making the accommo-
dation process work. The employee has the affir-
mative obligation to let the employer know that
he is disabled and that he needs an accommoda-
tion. Beck v. University of Wisconsin Bd. of
Regents, 75 F.3d 1130, 1134 (7th Cir. 1996); see
also 42 U.S.C. sec. 12112(b)(5)(A) (stating that
"the term ’discriminate’ includes" "not making
reasonable accommodations to the known physical
or mental limitations of an otherwise qualified
individual with a disability") (emphasis added).
Once the employee provides this information, the
employer has a responsibility to start the inter-
active process. Bombard v. Fort Wayne Newspapers,
Inc., 92 F.3d 560, 563 (7th Cir. 1996); see also
29 C.F.R. sec. 1630.2(o)(3) (1999) ("To determine
the appropriate reasonable accommodation it may
be necessary for the covered entity to initiate
an informal, interactive process with the quali-
fied individual with a disability in need of the
accommodation.").
Thus, neither the employer nor the employee can
sit back and wait for the interactive process to
happen. A possible interpretation of the record
in this case is that Yellow Freight believes that
the ADA’s interactive process requires it to make
only one step toward the employee, and that if
the employee does not respond immediately or
"correctly," then the company’s responsibility
ends. If that is its view, however, it is wrong.
The interactive process envisioned by our cases
and the EEOC (in its guidance provided appended
to the ADA regulations, see 29 C.F.R. Pt. 1630,
App. (1999)) requires the employer to try harder
than that. It is not allowed to make one move and
then call it quits. See, e.g., Hendricks-Robinson
v. Excel Corp., 154 F.3d 685, 693 (7th Cir. 1998)
("The ’reasonable accommodation’ element of the
Act imposes a duty upon employers to engage in a
flexible, interactive process with the disabled
employee needing accommodation so that, together,
they might identify the employee’s precise limi-
tations and discuss accommodations which might
enable the employee to continue working. . . . An
employer must make a reasonable effort to explore
the accommodation possibilities with the employ-
ee.") (citations omitted); Bultemeyer v. Fort
Wayne Community Schs., 100 F.3d 1281, 1285 (7th
Cir. 1996) ("The employer has to meet the employ-
ee half-way, and if it appears that the employee
may need an accommodation but doesn’t know how to
ask for it, the employer should do what it can to
help.").
This record presents a genuine issue of materi-
al fact on the question of who was responsible
for the breakdown in the interactive process.
Neither party took a model approach to trying to
figure out what reasonable accommodation(s) might
have been possible. One obvious suggestion Yellow
Freight never made was to return Nicosia to the
status of "casual" worker, which everyone seems
to concede would have both permitted Nicosia the
attendance flexibility his illness required,
while giving Yellow Freight the reliability it
needed from its regular workers. I need not
decide whether this would have been a proper
accommodation or not, but the silence on this and
other possible arrangements is deafening. Nicosia
explained his problems to Yellow Freight in his
letter and he told them what he needed; Yellow
Freight charged ahead with its disciplinary
process without ever thinking about what might
have served both parties’ interests in a manner
acceptable to the ADA. On this record, once again
it is the trier of fact who should have been
permitted to decide who dropped the ball. See
Baert v. Euclid Beverage, Ltd., 149 F.3d 626, 634
(7th Cir. 1998) (holding summary judgment inap-
propriate where there was a genuine issue of
material fact as to who was responsible for the
breakdown in the interactive process); Dalton v.
Subaru-Isuzu Automotive, Inc., 141 F.3d 667, 677
(7th Cir. 1998) (same).
III
Because genuine issues of material fact are
present in this record, I would Reverse the
district court’s summary judgment for Yellow
Freight on the ADA discrimination claim and the
ADA accommodation claim, and I would Remand those
two parts of the case for further proceedings. To
that extent, I respectfully dissent.