dissenting 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 governing 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. § 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 practice. 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 entitled 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 majority 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 majority’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 opponents could sustain such a burden. I thus do not disagree with the majority that under one permissible 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 dockworker 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 *954leave. 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 supervision 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 content of that policy was. The facts underlying those assumptions are, however, disputed in this particular case. Before proceeding with a substantive 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 doekworkers. 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 entitled to five paid sick days per year. In addition, 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 company 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 attendance was far from strict. While, as the majority points out, Yellow Freight had a five-step disciplinary process, it had no objective written attendance policy that indicated what number or constellation of absences would lead to particular types of discipline. At the Chicago Ridge Terminal, it was entirely within Sendziol’s discretion to determine when a particular employee’s absences became “excessive” and how rapidly to proceed through the disciplinary process. The record (including Nicosia’s own sporadic attendance 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 testimony indicates, Sendziol decided how to handle individual employees’ absences on an essentially ad hoc basis. After explaining that “[ejach 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 *955if 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. Employees 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 evenhanded 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 nondis-eriminatory 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 949, that Yellow Freight’s policy of erasing earlier disciplinary actions if an employee completed nine months of continuous action without a new infraction 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 restart 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. (“Company 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 Send-ziol and told him that he had a medical problem and needed some time off. Send-ziol told him that he was ineligible for family and medical leave (for reasons that are unclear), but that he could take a 90 day (unpaid) 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 diagnosed with Kaposi’s sarcoma, which is a cancer associated with AIDS. On January 12, 1996, Nicosia sent a letter to Sendziol. The letter informed Sendziol that Nicosia’s health was “impacted 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. Evi*956dently 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 condition or information about his treatment or potential limitations. During the first three months of 1996, however, he was frequently absent from work because of his illness. (Indeed, his absences 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 condition, 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 coaching 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 accommodation review form to Sendziol, which he forwarded to Nicosia on July 26, along with a letter indicating that Yellow Freight understood Nicosia’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 stonewalled the company, which leaves the wrong impression 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 perform my job and reasonable accommodations necessary 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 working to fulfill the responsibilities and perform the duties” of a dockworker. He offered in the letter to have his physician *957prepare 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 challenging 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 returned 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 948-49, regular attendance at the job is a legitimate 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 essential 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 temporary 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 ordinary 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 *958content 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 gender, 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 fulltime dockworker job and thus that failure to maintain regular attendance was a legitimate, nondiscriminatory reason for employee terminations. 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 insurmountable problem until the company found out he was HIV positive.
If the trier of fact believed Nicosia’s evidence, 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, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998)-is suspicious enough to indicate that Yellow Freight’s stated reason for terminating him was pre-textual. I would therefore hold that Nicosia is entitled to go forward with his basic claim of discrimination 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 accommodation process work. The employee has the affirmative obligation to let the employer know that he is disabled and that he needs an accommodation. Beck v. University of Wisconsin Bd. of Regents, 75 F.3d 1130, 1134 (7th Cir.1996); see also 42 U.S.C. § 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 interactive process. Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 563 (7th Cir.1996); *959see also 29 C.F.R. § 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 qualified 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 limitations 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 employee.”) (citations omitted); Bultemeyer v. Fort Wayne Community Schs., 100 F.3d 1281, 1285 (7th Cir.1996) (“The employer has to meet the employee half-way, and if it appeal’s 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 material 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 aceommodation(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 inappropriate 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).
Ill
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.