In the
United States Court of Appeals
For the Seventh Circuit
No. 00-3746
Loretta M. Emerson, formerly known
as Loretta M. Rubenzer,
Plaintiff-Appellant,
v.
Northern States Power Company,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 99 C 809--Barbara B. Crabb, Judge.
Argued March 26, 2001--Decided June 26, 2001
Before Flaum, Chief Judge, and Bauer and
Rovner, Circuit Judges.
Bauer, Circuit Judge. Loretta
Emerson/1 sued her former employer,
Northern States Power Company ("NSP") for
firing her in violation of the Americans
with Disabilities Act ("ADA") 42 U.S.C.
sec. 12101 et seq. The district court
granted summary judgment in favor of NSP
on the ground that Emerson was not a
qualified individual. We affirm.
I. Background
Emerson began working in NSP’s Eau
Claire Customer Information Center in
1994. She began as a part-time "student
operator," but was promoted to a part-
time "associate consultant" position
within six months. Despite the part-time
classification, Emerson generally worked
40 hours per week. As an associate
consultant, Emerson mainly handled
routine customer calls, but by her
estimate roughly 5% to 10% of her job
entailed processing customer calls about
gas and electrical emergencies, such as
gas leaks and downed power lines. The job
description designated handling such
calls as an "essential job function," and
estimated the volume of calls to comprise
20% of an associate consultant’s work. On
average, Emerson handled 2 to 5 gas
emergencies per week and 2 to 5
electrical emergencies per week. This
number generally increased when
thunderstorms occurred. In 1994 and most
of 1995, Emerson performed her job at or
above the satisfactory level. However,
for reasons the record does not
elucidate, Emerson had strained relations
with one of her supervisors, Lori Krigs.
Then, on October 1, 1995, Emerson fell
and hit her head while rollerblading. The
fall caused head trauma, including two
skull fractures and a hematoma. Dr.
Michael Murphy treated Emerson,
hospitalizing her twice. He referred her
to a speech/language therapist who
conducted two therapy sessions with
Emerson and evaluated her condition using
cognitive tests. The therapist concluded
in part that Emerson experienced
difficulty learning new information and
had moderate memory impairments. At the
end of October, relying on the tests the
therapist administered, Dr. Murphy
released Emerson to return to her
associate consultant position with no
medical restrictions.
Upon her return, Emerson had difficulty
learning NSP’s new telephone and computer
systems. Her supervisors complained that
she asked many questions more than once
and seemed unable to retain information.
Her supervisors also noted that she made
mistakes when working on complex, yet
routine tasks and was much more emotional
than she had been before the accident.
Emerson’s supervisors evaluated her job
performance in 1996 as needing
improvement in the areas of problem-
solving, information retention, and
communication. Emerson continued to have
difficulties with Krigs, a situation
which caused her stress.
On Saturday, April 27th, Emerson
experienced an anxiety attack at work.
The attack, Emerson’s first, included
symptoms characteristic of a heart
attack. Emerson spent the rest of her
shift at the emergency room, but was able
to return to work on Monday. Dr. Murphy
prescribed anti-anxiety medication for
Emerson to take when she felt the onset
of an attack, but she took it
infrequently. Rather, she tried to reduce
stress at work by avoiding contact with
Krigs. Emerson suffered another panic
attack at work on June 6th. She took her
medication and, with permission from NSP,
went home for the day. Emerson was not
handling calls when she experienced
either of the attacks.
NSP was concerned that Emerson’s panic
attacks might prevent her from adequately
handling safety-sensitive calls. It
required her to be evaluated by the
company’s occupational medicine
physician, Dr. Donald Bodeau, regarding
her ability to safely perform her job,
and she saw him several times during the
summer of 1996. Dr. Bodeau believed that
the panic attacks were related to
Emerson’s head trauma. After Emerson’s
first evaluation, Dr. Bodeau recommended
placing Emerson on a paid leave of
absence, which NSP did. After a follow-up
exam on June 19th, Dr. Bodeau cleared
Emerson to return to work in a non-
safety-sensitive position. NSP placed her
in a billing position for two months to
fill in for an employee on maternity
leave. Emerson worked the same number of
hours and received the same pay as she
did in her associate consultant position.
She performed well in the billing
department.
NSP asked Emerson to be re-evaluated by
Dr. Bodeau on July 17th. Dr. Bodeau noted
that Emerson felt relaxed in the billing
position, but when she spoke of returning
to her position as an associate
consultant, she became agitated and
believed that Krigs was conspiring
against her. Emerson continued to show
signs of memory loss and difficulty
communicating. Dr. Bodeau sent Emerson to
Dr. Thomas, a psychologist, for further
neurological testing. Dr. Thomas
concluded that while her test results
were within normal limits, she suffered
from acute anxiety disorder and probable
panic attacks. He noted that Emerson’s
condition would likely improve over the
next one to two years, although he could
not offer assurances that she would
recover fully, and recommended that NSP
reinstate her to the associate consultant
position. Dr. Murphy and Dr. Bodeau
agreed that Emerson suffered from an
anxiety disorder, although Dr. Bodeau
thought it was fairly mild.
On August 16th, Emerson met with her
supervisors from NSP to discuss returning
to work as an associate consultant. At
that meeting, NSP gave Emerson a written
warning, the second step in the
disciplinary process, memorializing its
concern about her performance. NSP had
not given Emerson a level one warning,
but had the discretion to skip
disciplinary steps. Emerson indicated
that in case of a panic attack, she would
need to talk to her supervisor and take a
break. At Dr. Bodeau’s recommendation,
NSP allowed Emerson five minutes to
collect herself in case of a panic
attack. Emerson consulted Dr. Murphy who
informed NSP that a five minute break
might be insufficient time for Emerson to
regain her composure. He could not,
however, specify how much time she would
need. Because of NSP’s concern, Emerson
suggested that safety-sensitive calls
could be routed away from her, or that a
co-worker could take over for her in case
she had a panic attack while dealing with
a safety-sensitive call. NSP rejected
these options because of the uncertainty
that another consultant or supervisor
would be available to take the call.
Further, Emerson suggested that her
stress level would be reduced if Krigs
stopped supervising her. NSP declined to
make this arrangement.
Dr. Bodeau unsuccessfully attempted to
reach Dr. Murphy to discuss his
recommendation that five minutes was not
enough time for Emerson to recover from a
panic attack. Dr. Bodeau then recommended
that Emerson be transferred out of her
safety-sensitive position. Further, based
on his prediction that it would take
Emerson up to two years to fully recover,
NSP concluded Emerson would have to leave
her consultant position. NSP identified
an available full-time administrative
assistant job, but required Emerson to
apply for it because Emerson’s associate
consultant position was classified as
part-time despite its usual full-time
hours. Emerson was not interviewed or
hired for this position. NSP offered
Emerson a temporary, part-time cash
processor position, which she turned
down. Toward the end of October, a
supervisor notified Emerson that an
associate consultant position with no
safety-sensitive calls was available in
Minnesota. Emerson did not apply.
Emerson’s employment was terminated
effective October 31, 1996. NSP did not
notify Emerson about any other available
positions for which she qualified,
although some existed. A vocational
rehabilitation expert who later evaluated
Emerson concluded that her head injury,
which sensitized her to stress and
increased her need for routine, precluded
her from 47% of all occupations and
rendered her disabled.
After Emerson’s termination, she worked
briefly scheduling factory workers, but
left because scrambling every morning to
find substitute workers for absent
employees was too stressful. Emerson
subsequently performed office work and
maintenance for a housing management com
pany for three years, and supplemented
her income by working temporary jobs as a
booking agent and order processor.
Emerson left these jobs to become a
property manager. She has had difficulty
finding a job that pays as much as NSP
paid her.
Emerson sued NSP for monetary and
injunctive relief under the ADA, arguing
that NSP failed to offer her a reasonable
accommodation and fired her because she
was disabled. The district court found
that an issue existed as to Emerson’s
disability in the major life activities
of learning and working. However, the
court granted summary judgment in favor
of NSP finding that Emerson was not a
qualified individual under the ADA
because she was unable to handle safety-
sensitive calls with or without
reasonable accommodation.
II. Discussion
We review the district court’s grant of
summary judgment de novo. See Sinkler v.
Midwest Property Mgmt., Ltd. P’ship., 209
F.3d 678, 682 (7th Cir. 2000). To
persuade us to reverse the district
court, Emerson must marshal the
pleadings, depositions, answers to
interrogatories, and affidavits to create
an issue of material fact regarding the
challenged factors, or she must show that
NSP is not entitled to judgment as a
matter of law. See id. at 683. The ADA
prohibits covered entities such as NSP
from discriminating against a qualified
individual with a disability on the basis
of the disability. See 42 U.S.C. sec.
12112(a). In this case, Emerson defends
the district court’s holding that she has
created a material issue of fact
regarding whether she was disabled at the
time she was terminated, but she attacks
the district court’s determination that
she was not a qualified individual as
defined by the ADA.
A. Was Emerson Disabled?
The ADA defines "disability" as:
(A) a physical or mental impairment that
substantially limits one or more major
life activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an
impairment.
42 U.S.C. sec. 12102(2). Emerson
endeavors to show that she meets all
three definitions. We initially tackle
the first definition by following the
procedure in Bragdon v. Abbott, 524 U.S.
624, 632-42 (1998). We determine whether
(1) Emerson has a physical or mental
disability (2) that impacts a major life
activity and (3) whether the impairment
substantially limits those activities.
See id.
Emerson argues that her head injury
resulted in mental impairments including
anxiety, panic attacks, learning
difficulties, and increased emotionality.
She garners proof of these effects from
the reports of Drs. Murphy, Bodeau, and
Thomas. The Department of Health and
Human Services defines a "mental
impairment" as "any mental or
psychological disorder, such as mental
retardation, organic brain syndrome,
emotional or mental illness, and specific
learning disabilities." 29 C.F.R. sec.
1630.2(h)(2). "[M]edically diagnosed
mental conditions are impairments under
the ADA." Krocka v. City of Chicago, 203
F.3d 507, 512 (7th Cir. 2000) (internal
quotation omitted). Emerson’s diagnoses
provide evidence that precludes summary
judgment on the disability issue for NSP.
At the time of her injury, the speech
therapist found that Emerson suffered
from a moderate impairment in her ability
to learn, to retain new information, and
to concentrate. During the summer of
1996, three separate doctors diagnosed
Emerson with anxiety disorders of varying
seriousness. Further, in June of 1996,
Dr. Bodeau noted that he found evidence
of "mood alteration, sudden personality
change, learning ability and panic
attacks." NSP counters with Dr. Bodeau’s
ultimate conclusion that of Emerson’s
test results were in the normal range.
While this evidence could persuade a jury
to find that Emerson suffers from no
impairment, it does not remove the issue
of fact.
Emerson contends that her impairment
effects the established major life
activities of learning and working. See
29 C.F.R. sec. 1630.2(i). She further
argues that memory, concentration, and
interacting with others are major
lifeactivities that her brain injury
impairs, but offers no legal precedent to
support her assertion. Emerson has not
sufficiently developed her contentions on
appeal, and we will not decide the issue.
Rather, we will adopt the district
court’s approach and treat memory,
concentration, and interacting with
others as activities that feed into the
major life activities of learning and
working.
The parties hotly dispute whether
Emerson’s impairments substantially
limited her major life activities.
According to the Code of Federal
Regulations, a person is "substantially
limited" if compared to the average
person in the general population she
cannot perform or is limited in the
manner, duration, or condition in which
she can perform a major life activity.
See 29 C.F.R. sec. 1630.2(j)(ii). Emerson
points to several pieces of evidence to
show her substantial limitation in the
area of learning. She had excessive
difficulty learning NSP’s new telephone
and computer systems, and frustrated her
supervisors with repetitive questions and
her inability to remember the answers.
One supervisor noted that Emerson made
mistakes when she attempted to complete
routine, yet complex aspects of her job
that she performed competently before the
accident. To establish the severity of
her impairments, Emerson relies on Dr.
Bodeau’s June 7th conclusion that Emerson
had difficulty learning and his June 19th
report finding cognitive difficulties.
Further, on July 19th, Emerson failed a
test that required her to count by threes
and sevens. This evidence, compiled from
both her employer and doctor’s reports is
more than sufficient to create an issue
of material fact.
NSP counters that cognitive tests
administered by Dr. Thomas showed that
Emerson’s cognitive function fell in the
normal range, prompting Dr. Bodeau to
recommended returning Emerson to her
consultant position. Further, NSP argues
that Emerson’s work performance problems
revolved primarily around her panic
attacks and her bad relationship with
Krigs, not her ability to learn.
Emerson’s evidence clearly disputes NSP’s
assertions. Such an issue of material
fact cannot be resolved at the summary
judgment stage.
Emerson also argues that she is
substantially impaired in the major life
activity of working. To show a
substantial limitation in this activity,
Emerson must offer proof that she is
"significantly restricted in the ability
to perform either a class of jobs or a
broad range of jobs in various classes as
compared to the average person having
comparable training, skills and
abilities." 29 C.F.R. 1630.2(j)(3)(i);
Webb v. Choate Mental Health & Dev. Ctr.,
230 F.3d 991, 998 (7th Cir. 2000)
(quoting Weiler v. Household Fin. Corp.,
101 F.3d 519, 525 (7th Cir. 1996)). We
evaluate impairments on an individual
basis to determine if they substantially
limit a person’s ability to work. See
Moore v. J.B. Hunt Transp., Inc., 221
F.3d 944, 952 (7th Cir. 2000) (citation
omitted). In support on her argument,
Emerson presents her vocational
rehabilitation specialist’s conclusion
that Emerson is foreclosed from a broad
range of jobs--47% of all occupations.
NSP challenges the report, arguing that
it does not describe how Emerson’s
anxiety and need for routine foreclose
her from this range of jobs, that the
vocational rehabilitation specialist
called her impairment "minor," and that
he failed to consider the potential
effect of Emerson’s medication when
determining the effect of her impairment
on her ability to work. NSP’s arguments
call the report into question, but do not
discredit it to the extent that we can
disregard its conclusions. Emerson has
created a question regarding whether she
is disabled that precludes summary
judgment on this issue. Given our
holding, we decline to address the
remaining definitions of "disabled."
B. Was Emerson a qualified individual?
To be a "qualified individual," a
plaintiff must be "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." Weiler, 101 F.3d at 525
(quoting 42 U.S.C. sec.12111(8). Emerson
disputes the district court’s conclusion
that she was not a qualified individual
in four ways.
First, she argues that handling safety-
sensitive calls was not an essential
function for an associate consultant. An
essential function is a fundamental job
duty required of a person in the job the
plaintiff holds or desires; a marginal
duty is not an essential function. See 29
C.F.R. sec. 1630.2(n)(1). Factors that
may be taken into account when
determining whether a job duty
constitutes as essential function include
job description, employer’s opinion,
amount of time spent performing the
function, consequences for not requiring
the individual to perform the duty, and
past and current work experiences. See
Basith v. Cook County, 241 F.3d 919, 927
(7th Cir. 2001); 29 C.F.R. sec.
1630.2(n)(3).
NSP considers, and its associate
consultant job description designates,
handling safety-sensitive calls as an es
sential job function. Emerson argues that
the relative rarity of such calls (5% of
the job, by her estimate) shows that they
are only a marginal duty. Although we
accept Emerson’s estimate of the safety-
sensitive call volume, it fails to rebut
the essential function status.
Consultants clearly receive safety-
sensitive calls which are crucial as they
have potentially dangerous consequences
if handled poorly. Emerson suggests that
the calls could have been routed to
another consultant, but this does not
change their essential function status.
See Basith, 241 F.3d at 929 (holding that
employer’s ability to assign delivery
duties to another employee does not make
them nonessential).
Second, Emerson contends that she could
handle the calls without reasonable
accommodation. To be a "qualified
individual," the plaintiff must prove (1)
that she possesses the prerequisites for
the job, such as educational background,
skills, and experience, and (2) that she
can perform the job with or without
reasonable accommodation. See Bay v.
Cassens Transp. Co., 212 F.3d 969, 974
(7th Cir. 2000) (citations omitted). NSP
contests only whether Emerson can handle
safety-sensitive calls. Emerson notes
that after her accident, she never had
trouble dealing with a safety-sensitive
call and that she never had an anxiety
attack while on any call. She believes
this demonstrates that there is no
evidence to establish that she cannot
handle safety-sensitive calls. We
disagree. NSP is concerned about the
potentially disabling effect a panic
attack, such as the two Emerson has
experienced at work, and her need for an
indeterminate recovery time could have on
her ability to handle emergency calls.
Indeed, it emphasizes Dr. Bodeau’s
recommendation that Emerson be removed
from her position:
[g]iven these considerations as well as
the job description provided for a
consultant in the customer information
center, it is my opinion that [Emerson]
should be reassigned out of the gas-
sensitive activities that she found so
stressful.
Given Emerson’s need for an indeterminate
recovery time and the potentially
dangerous effects of a mishandled or
tardily handled safety-sensitive call,
Emerson’s evidence fails to create an
issue of fact regarding whether she can
adequately perform her job.
Emerson contends, however, that the
district court improperly analyzed NSP’s
argument under the routine "qualified
individual" framework. Rather, Emerson
asserts that the "direct threat" rubric
is more appropriate because NSP’s
arguments are better characterized as
concern that Emerson posed a direct
threat to the safety of its customers.
Emerson and NSP disagree about the role
this test should play, and unfortunately,
this leads their appellate briefs to be
underdeveloped. Emerson believes it was
NSP’s burden to present it as an
affirmative defense; NSP believes it was
Emerson’s duty to advance it as a theory
of the case. We agree that the direct
threat test can be applied appropriately
here, but the results are no different
than under "qualified individual"
analysis.
An employee is not a qualified
individual if she poses "a significant
risk to the health or safety of others
that cannot be eliminated by reasonable
accommodation." 42 U.S.C. sec. 12111(3).
Under the direct threat framework, the
employee shoulders the initial burden of
proof and may proceed in one of two ways.
First, she may present direct or
circumstantial evidence that the employer
discriminated on the basis of her
disability. See Bekker v. Humana Health
Plan Inc., 229 F.3d 662, 670 (7th Cir.
2000) (citation omitted). The employer
must then prove, with medical or
objective evidence, see Bragdon, 524 U.S.
at 649 (citation omitted); 29 C.F.R. sec.
1630.2(r), that it would have made the
same decision absent the discrimination.
See Bekker, 229 F.3d at 670 (citation
omitted). Alternatively, the employee
could opt for the McDonnell-Douglas
burden-shifting test. It requires the
employee to create an inference of
discrimination by bringing a prima facie
case. See id. at 672. The employer then
must provide a legitimate business reason
for its action, whereupon the burden
shifts back to the employee to show by a
preponderance of the evidence that the
proffered reason is pretextual. See id.
Emerson focuses her efforts on
contending that NSP has failed to
shoulder its burden of proof.
Consequently, we are unsure under which
option she proceeds. It is unnecessary
for us to guess at Emerson’s choice,
however, because NSP meets its burden
under either framework. NSP’s decision
would have been the same absent
discrimination and was a legitimate
business decision.
To determine whether an individual poses
a direct threat, we must consider factors
including: (1) the duration of the risk;
(2) the nature and severity of the
potential harm; (3) the likelihood that
potential harm will occur; and (4) the
imminence of potential harm. See
Borgialli v. Thunder Basin Coal Co., 235
F.3d 1284, 1291 (10th Cir. 2000). NSP
presented unchallenged doctors’ opinions
that Emerson suffered from an anxiety
disorder that might disappear in one to
two years, but might never improve.
Consequently, she required unpredictable
breaks of indeterminate time to recover
from a condition she exhibited at work
previously. Emerson worked at a job which
required prompt, accurate handling of
emergencies such as gas leaks and downed
power lines that could pose significant
danger to the public. Although Emerson
argues that she is unlikely to suffer a
panic attack at work, she has already
suffered two. By its very nature, the
consultant job could be stressful, and
Emerson would be in contact with a
supervisor who caused her further stress.
This evidence is enough for us to find
that Emerson posed a direct threat in the
consultant position. See, e.g., Bekker,
229 F.3d at 671-72 (holding that doctor
who was suspected of drinking on the job
posed a direct threat although she had
not injured any patients); Borgialli, 235
F.3d at 1294 (determining that an
employee who had a good record in his job
as a blaster, but who suffered from
dizziness, held a grudge against his
supervisor, and threatened harm to
himself and others was a direct threat).
NSP could not reduce its risk by
reasonably accommodating Emerson. NSP
considered allowing Emerson breaks to
recover from her panic attacks. It found
five minute breaks to be acceptable, but
the indeterminate time Emerson requested
simply introduced too much uncertainty
into NSP’s handling of emergency calls.
NSP appropriately declined Emerson’s
suggestion to route safety-sensitive
calls away from her. An employer is not
obligated to change the essential
functions of a job to accommodate an
employee. See Cochrum v. Old Ben Coal
Co., 102 F.3d 908, 913 (7th Cir. 1996)
("In short, reasonable accommodation does
not encompass reallocation of essential
job functions."). Emerson further
suggested that in case of a panic attack,
a supervisor could handle her safety-
sensitive calls. NSP rejected this option
because it did not always staff a
supervisor and would have had to create
new supervisor shifts to accommodate
Emerson, which the ADA does not require.
See id. at 912 (holding it is not
reasonable to require an employer to hire
a helper to do overhead work for a miner
who cannot perform this essential job
function alone). Emerson does not bring
any evidence tending to show that NSP’s
business reason for terminating her was
pretextual. Therefore, Emerson is not a
qualified individual, and NSP is entitled
to summary judgment on this ground.
Third, Emerson contends that NSP failed
to offer her reasonable accommodations
because it failed to participate in the
interactive process the ADA requires. As
part of the reasonable accommodation
duty, the ADA requires employers to
engage in an interactive process with
disabled employees needing accommodation
so that together they can identify the
employee’s needs and discuss
accommodation options. See Hendricks-
Robinson v. Excel Corp., 154 F.3d 685,
693 (7th Cir. 1998). However, an
employer’s failure to engage in the
interactive process or causing the
process to breakdown by itself is
insufficient to support employer
liability. See Rehling v. City of
Chicago, 207 F.3d 1009, 1015-16 (7th Cir.
2000). Rather, the employee must further
show that the breakdown of the
interactive process led to the employer’s
failure to provide a reasonable
accommodation. See id. at 1016.
Emerson criticizes Dr. Bodeau for
failing to discuss Dr. Murphy’s break
recommendation with him before
recommending that NSP remove Emerson from
her consultant position, and NSP for
following this recommendation. However,
the evidence shows that NSP engaged in
the interactive process in good faith. It
considered numerous medical diagnoses and
recommendations to determine the effect
of Emerson’s disability. It offered to
retain her as a consultant with the
understanding that she could take a five
minute break in the event of a panic
attack. However, NSP felt that it could
not offer Emerson breaks of indeterminate
time that Dr. Murphy opined she needed.
After an unsuccessful attempt to
communicate with Dr. Murphy, NSP offered
to accommodate Emerson by transferring
her to a temporary position. Further, NSP
allowed Emerson to submit a late
application for a full-time job. Emerson
was not selected for the full-time job
and she rejected the part-time job offer.
NSP offered Emerson a reasonable
accommodation.
Finally, Emerson argues that NSP should
have relocated her within the company
rather than fire her because she
expressed interest in remaining at NSP.
Reassigning disabled employees to vacant
positions that they can perform is a
reasonable accommodation. See Hendricks-
Robinson, 154 F.3d at 693. However, the
employee is not entitled to her preferred
accommodation. See Gile v. United
Airlines, Inc., 95 F.3d 492, 499 (7th
Cir. 1996). NSP offered to reassign
Emerson to an available position as a
temporary cash processor, which she
refused. NSP did not simply transfer
Emerson into the available full-time
position because it would have been a
promotion from part-time status to full-
time status. After evaluating the job
applications, NSP opted not to hire
Emerson for the job. Before Emerson was
terminated, NSP also alerted her to an
associate consultant position that was
available in Minnesota, which would not
have required her to field safety-
sensitive calls. Emerson opted not to
apply. NSP satisfied its duty. Emerson
contends that NSP had a continuing duty
to notify her of available positions even
after she was terminated, but did not do
so. She cites no legal support for this
position.
III. Conclusion
Because we hold as a matter of law that
Emerson is not a qualified individual, we
AFFIRM the grant of summary judgment in
favor of NSP.
FOOTNOTES
/1 Between the time of the events and the time the
case went to trial, plaintiff changed her last
name from "Rubenzer" to "Emerson." For the sake
of consistency, we refer to plaintiff as "Emer-
son."