In the
United States Court of Appeals
For the Seventh Circuit
No. 08-3134
JEANNE G RATZL,
Plaintiff-Appellant,
v.
O FFICE OF THE C HIEF JUDGES OF THE
12 TH , 18 TH , 19 TH AND 22 N D JUDICIAL C IRCUITS,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 07 C 867—Amy J. St. Eve, Judge.
A RGUED N OVEMBER 5, 2009—D ECIDED A PRIL 7, 2010
Before B AUER, M ANION, and W ILLIAMS, Circuit Judges.
M ANION, Circuit Judge. Jeanne Gratzl suffers from
incontinence and must get to a restroom within minutes
of feeling an urge to urinate. She was hired by the Office
of Chief Judges of the 12th, 18th, 19th and 22nd Judicial
Circuits to work as a electronic court reporter specialist
working exclusively in the control room of the DuPage
County, Illinois courthouse. The job was ideal for her. Her
2 No. 08-3134
responsibilities were so compatible with her medical
condition that her supervisors were not even aware of
it for five years. Unfortunately for Gratzl, this ideal situ-
ation changed in 2006 when, in response to a directive
from the Illinois Coordinator of Court Reporting Services,
the Chief Judge eliminated her specialist position and
required all court reporters to rotate through live court-
rooms as well as the control room. Believing that she
was unable to perform in-court reporting due to her
incontinence, Gratzl requested an accommodation. After
several months, discussions broke down and, when she
would not return to work, her employment was termi-
nated. Gratzl brought this suit against her employer
under the Americans with Disabilities Act (ADA), 42
U.S.C. § 12111 et seq. and the Rehabilitation Act, 29 U.S.C.
§ 794 et seq. The district court granted summary judg-
ment to the defendant. We affirm.
I.
Gratzl has suffered from incontinence since approxi-
mately 1991, apparently as a result of pregnancy complica-
tions. Unable to treat her condition with medication,
she left a court reporting job and began to teach court
reporting at McCormick College, which allowed her to
manage her incontinence by leaving the room whenever
necessary. When the campus where she was teaching
closed in 2001, Gratzl transferred but soon had to quit
because she was unable to make the commute to the
college’s Chicago campus without becoming incontinent.
As her incontinence worsened, she applied for an elec-
No. 08-3134 3
tronic court reporting position in the control room at the
DuPage County courthouse, believing the position would
allow her to manage her condition. She was hired for
the control room position and eventually entered into a
written agreement specifying that her job responsibilities
included only control room reporting. This arrangement
worked favorably for both Gratzl and the court. Gratzl
was able to manage her incontinence problem so well
that no one was even aware of it. Then-Chief Judge
Robert Kilander was pleased because court reporters, as
a group, apparently preferred in-court reporting to the
control room because they could make extra money
preparing transcripts.
In 2006, however, the State of Illinois eliminated the
“Court Reporting Specialist” job title and consolidated all
reporters under the title “Official Court Reporter.” Al-
though the State did not specify what job responsibilities
accompanied the new title, Judge Ann Jorgenson, the
new Chief Judge of the DuPage County courthouse,
decided that all court reporters—who now shared the
same title—would be required to do the same job. This
would include a full rotation in which all court reporters
would rotate through all of the courtrooms, including
the control room. According to the court, the purpose
of this new procedure was to evenly distribute the work-
load that varied with each courtroom. When Judge
Jorgenson told Gratzl on March 22 that she would have
to go into the full rotation, Gratzl explained her medical
condition to Judge Jorgenson and that, because of her
condition, she believed she could not do in-court reporting.
At the same meeting, Gratzl requested a leave of absence
4 No. 08-3134
for surgery scheduled on April 11, which Judge Jorgenson
approved.1 Judge Jorgenson then gave Gratzl until April 14
to decide whether to participate in the full rotation or
resign. On April 10, Gratzl informed the court that
she would participate in the full rotation. She then re-
quested, and was granted, an extension of her medical
leave until May 25.
On May 19, Gratzl’s attorney formally requested that
the court accommodate Gratzl’s incontinence by allowing
her to return to work full time in the control room. Her
request was supported by a letter from Dr. Catrambone,
in which he stated that Gratzl needed to have the access
to a restroom on a moment’s notice and opined that this
requirement was inconsistent with in-court reporting
duties. In response, the court first offered to assign
Gratzl only to juvenile courtrooms, which did not have
jury trials. With Dr. Catrambone’s support, Gratzl rejected
that offer as incompatible with her incontinence—jury or
no, she would still not have the flexibility she needed
during trials—and stated that she did not believe that
any accommodation other than maintaining her prior
specialist position would accommodate her needs. The
court then offered to structure her rotation to include only
the courtrooms with an adjacent restroom, but Gratzl
rejected this proposal as well. Through further commu-
nication with Gratzl and Dr. Catrambone, the court
1
The purpose of the surgery was to remove a cystocele, and
not to correct the incontinence, although the surgery can help
with incontinence.
No. 08-3134 5
learned that Gratzl needed to be able to access a rest-
room within five minutes of feeling the urge to urinate,
to prevent potential injury and the possibility of inconti-
nent episodes.
Gratzl reiterated her request to be placed exclusively
in the control room. In response, the court proposed
additional accommodations, including: allowing her to
avoid assignment to any courtrooms in which a trial
was scheduled; not assigning her to juvenile courtrooms,
which were farther from the restrooms; and establishing
a “high sign” that she could use to signal to the presiding
judge that she needed a break. Gratzl did not present
these new terms to Dr. Catrambone but, feeling that the
proposals did not accommodate her condition any
better than the previous offers, rejected the offer. The
court responded by reiterating that the job duties of all
court reporters included rotating through both the court-
rooms and the control room, repeating its latest offer
of accommodation, and stating that Gratzl was expected
to return to work on October 2. When Gratzl again
rejected the offer, the court gave her until October 27
to provide specific reasons why the offer remained incom-
patible with her condition. She responded that because
her medical condition had not changed, further back-and-
forth debate over the previously rejected offer served no
purpose. On October 31, the court terminated Gratzl’s
employment.
Gratzl then sued the Office of the Chief Judges under
the ADA and the Rehabilitation Act for failing to accom-
modate her incontinence. The defendant moved for sum-
6 No. 08-3134
mary judgment, arguing that Gratzl had not established
that she was disabled under the ADA and Rehabilitation
Act, that it had offered her a reasonable accommodation,
and that she was not qualified for the job of Official
Court Reporter if she could not do in-court reporting. The
district court concluded that Gratzl had not established
that she was disabled under the ADA and Rehabilitation
Act and granted summary judgment on that ground. It
did not address the defendant’s other arguments. Gratzl
appeals.
II.
Gratzl argues that the district court erred when it
concluded that she had not established that she was a
qualified individual with a disability under the ADA
and Rehabilitation Act.2 We review the district court’s
grant of summary judgment de novo, viewing all facts
in the light most favorable to and drawing all reasonable
inferences for Gratzl, the nonmoving party. Burnett v.
LFW Inc., 472 F.3d 471, 477 (7th Cir. 2006). To establish
her failure to accommodate claim under the ADA, Gratzl
must show that: (1) she is a “qualified individual with
a disability”; (2) the defendant was aware of her disa-
bility; and (3) the defendant failed to reasonably accom-
2
The standards are the same under the ADA and the Rehabili-
tation Act. Ozlowski v. Henderson, 237 F.3d 837, 839 (7th Cir.
2001). Thus the analysis here, although expressed in terms of
the ADA, is equally applicable to Gratzl’s claim under the
Rehabilitation Act.
No. 08-3134 7
modate her disability. EEOC v. Sears, Roebuck & Co., 417
F.3d 789, 797 (7th Cir. 2005). “We may affirm a summary
judgment on any ground that finds support in the
record where the ground has been adequately presented
in the trial court so that the non-moving party had an
opportunity to submit affidavits or other evidence and
contest the issue.” Maclin v. SBC Ameritech, 520 F.3d 781,
786 (7th Cir. 2008) (internal quotations and citations
omitted). Summary judgment is appropriate in this case
only if there are no genuine issues of material fact and
the defendant, the moving party, was entitled to judg-
ment as a matter of law. Id.
The first step in determining whether a plaintiff is a
“qualified individual with a disability” is to determine
whether the plaintiff has a disability, or more specifically,
whether she has “a physical or mental impairment that
substantially limits one or more of [her] major life activi-
ties.” 42 U.S.C. § 12102(1)(A). In this case, the district
court concluded that Gratzl had not established that she
had a disability because she had not put forward any
evidence that she was substantially limited in a major
life activity. The activity Graztl cites—elimination of
waste—was not explicitly listed in the ADA or its imple-
menting regulations as a major life activity at the time
Graztl requested an accommodation. See 29 C.F.R.
§ 1630.2(i) (2006). This court has never held that the
elimination of waste was a substantial life activity
under the ADA prior to the ADA Amendments of 2008,
8 No. 08-3134
which were not effective until January 1, 2009,3 but we
have held that similar bodily functions, including eating,
are major life activities. Lawson v. CSX Transp., Inc., 245
F.3d 916, 923 (7th Cir. 2001). And other circuits have
held that the elimination of waste is either itself a major
life activity or essential to other major life activities such
as caring for one’s self. See, e.g., Heiko v. Colombo Sav.
Bank, F.S.B., 434 F.3d 249, 255 (4th Cir. 2006) (holding that
the elimination of bodily waste is a major life activity
under the ADA); Workman v. Frito-Lay, Inc., 165 F.3d 460,
467 (6th Cir. 1999) (holding that controlling one’s own
bowels can be a major life activity). We need not, how-
ever, resolve this question of interpretation of a super-
seded law because, even if she has a disability, Gratzl
is not entitled to relief under the ADA for other reasons:
she is not a qualified individual and she rejected the
reasonable accommodation that the court offered.
To establish that she is a “qualified individual with a
disability,” Gratzl must establish not only that she has a
disability within the meaning of the ADA, but also that
she is qualified for the job, i.e., that she is able “to perform
the essential functions of the job, with or without rea-
3
Gratzl argues that the amendments, which expressly provide
that the elimination of waste is a major life activity, should
apply retroactively. But this court has assumed that the amend-
ments are not retroactive, Fredricksen v. United Parcel Service,
Co., 581 F.3d 516, 521 n.1 (7th Cir. 2009); Winsley v. Cook
County, 563 F.3d 598, 600 n.1 (7th Cir. 2009), and we see no
reason to question that assumption here.
No. 08-3134 9
sonable accommodation.” 42 U.S.C. § 12111(8); Jackson
v. City of Chicago, 414 F.3d 806, 811 (7th Cir. 2005).
Therefore, the key question in this case is whether
rotating through courtrooms was an essential function of
Gratzl’s court reporter job. The factors we consider to
determine whether a particular duty is an essential func-
tion include “the employee’s job description, the em-
ployer’s opinion, the amount of time spent performing
the function, the consequences for not requiring the
individual to perform the duty, and past and current
work experiences.” Ammons v. Aramark Uniform Servs., Inc.,
368 F.3d 809, 819 (7th Cir. 2004) (internal quotations and
citations omitted); accord Basith v. Cook County, 241 F.3d
919, 927 (7th Cir. 2001) (citing 29 C.F.R. § 1630.2(n)(3)); see
also 42 U.S.C. § 12111(8) (“[I]f an employer has prepared
a written description . . . , [it] shall be considered evidence
of the essential functions of the job.”). We presume that
an employer’s understanding of the essential functions
of the job is correct, unless the plaintiff offers sufficient
evidence to the contrary. Baisth, 241 F.3d at 928. Further,
an employer may specify, for legitimate reasons, multiple
essential duties for a position, and when an employee
is expected to rotate through duties, he “will not be
qualified for the position unless he can perform enough
of these duties to enable a judgment that he can perform
its essential duties.” Id. at 929.
Gratzl argues that in-court reporting is not a necessary
qualification for the job, but it is indisputable that with
the 2006 elimination of specialist positions, in-court re-
porting became a necessary function. When Gratzl was
10 No. 08-3134
hired, she was hired specifically for the position of control
room specialist. Judge Jorgenson, interpreting a policy
change that came from above, effectively eliminated the
control-room specialist as a separate position and
required all court reporters to rotate through all court-
rooms, including the control room. Thus the job for which
Gratzl needs to be qualified is that of an “Official Court
Reporter” in the DuPage County courthouse, not the
specialist position for which she was hired in 2001. It is
plain that the defendant considered in-court reporting
an essential function of the “Official Court Reporter” job.
The only evidence to the contrary that Gratzl cites is
her prior assignment to the control room on an exclusive
basis. But this is circular: Gratzl cannot prove that she
is qualified for her current job simply by citing evidence
that she was qualified for a previous job, with different
essential functions, that has been eliminated. Graztl is
unable to sit in the courtroom during proceedings with-
out disrupting court; she has offered no evidence to
the contrary and, in fact, her refusal to consider any
accommodation that required that she do in-court re-
porting strongly suggests that she believed she was
incapable of performing this function. Therefore, she
is not qualified for the job.
Another way to look at the question is whether the
only accommodation that Gratzl requested—exclusive
assignment to the control room—was a reasonable ac-
commodation. Because Gratzl bears the burden of estab-
lishing that she can perform the essential functions of her
job “with or without reasonable accommodation,” Winfrey
v. City of Chicago, 259 F.3d 610, 614 (7th Cir. 2001), she has
No. 08-3134 11
not met this burden if the only accommodation she has
ever suggested is not reasonable. But, as Gratzl herself put
it succinctly in her June 8th letter to Chief Judge Jorgenson:
“If we believed that another accommodation, other than
maintaining Ms. Gratzl’s position, could successfully
accommodate her disability, we would suggest it.” Gratzl
has not suggested any such other accommodation to
Judge Jorgenson, to the district court, or on appeal.
An employer need not create a new job or strip a current
job of its principal duties to accommodate a disabled
employee. Ammons, 368 F.3d at 819; Gile v. United Airlines,
95 F.3d 492, 499 (7th Cir. 1996). Nor is there any duty
to reassign an employee to a permanent light duty posi-
tion. Watson v. Lithonia Lighting, 304 F.3d 749, 752 (7th
Cir. 2002). Yet the job for which Gratzl was originally
hired was a specialist position that did not require her
to do court reporting in a live courtroom. It is undisputed
that the court—with no knowledge of Gratzl’s disabil-
ity—decided that it did not wish to maintain specialist
positions. Instead, all court reporters would be assigned
to rotate through the courtrooms. In other words, the
court eliminated the position for which Gratzl was origi-
nally hired by incorporating it as one among many
court reporter duties in the rotation through all of the
courtrooms. Even Gratzl appears to recognize this
when she argues that the job responsibilities she was
explicitly guaranteed when she was hired were those of
a specialist and that the new responsibilities in the job
description were contrary to what she was told when
she was hired. Just as an employer is not required to
12 No. 08-3134
create a new position or strip a current job of its essential
functions, an employer is not required to maintain an
existing position or structure that, for legitimate reasons,
it no longer believes is appropriate.4
Gratzl also argues that allowing her to resume her
previous duties as a control room specialist was a reason-
able accommodation because she and others have been
assigned exclusively to the control room in the past
and other courthouses operating under the same State
guidelines, such as Cook County, allow “Official Court
Reporters” to function as control room specialists. This
amounts to an argument that because the court has
divided up job responsibilities differently in the past, and
because other courts operating under the same guide-
lines assign job responsibilities differently, it would be
possible for the court to restructure its job responsi-
bilities that same way. But “the fact that restructuring
is feasible, in itself, is not persuasive evidence one way
or the other that a function is essential to a job.” Basith,
241 F.3d at 930. And although other court reporters
4
Gratzl argues that reassigning her to the control room
specialist position would not create undue hardship and
therefore should be considered reasonable. This is wrong. It
is true that undue hardship is a factor in deciding whether an
employer is reasonably required to reassign a disabled em-
ployee. But this consideration is only relevant if there is a
vacant position available for the employee. Gile, 95 F.3d at 499.
An employer is simply not required to create (or recreate) a
new position to accommodate an employee under the ADA,
regardless of the amount of hardship involved. Id.
No. 08-3134 13
have been allowed to work in the control room exclu-
sively on a temporary basis during pregnancy or to
recover from injury or operation, the temporary reassign-
ments to work exclusively in the control room during
pregnancy or recovery that Gratzl cites were made before
the decision to formally eliminate the specialist position.
Further, even if the court continued the practice of tempo-
rarily reassigning court reporters to the control room,
we have already noted that this would not create an
obligation that it accommodate Gratzl with a perma-
nent control-room position. See Watson, 304 F.3d at 751
(rotation allows employer to have qualified people to fill
in for absences, sicknesses, or vacations); see also Winfrey,
259 F.3d at 616 (holding that an employer may not be
punished for going beyond obligations of ADA by being
“deemed to have conceded the reasonableness of so far-
reaching an accommodation” (quoting Amadio v. Ford
Motor Co., 238 F.3d 919, 929 (7th Cir. 2001))); Basith,
241 F.3d at 930 (refusing to punish employer for going
beyond the requirements of the ADA by requiring the
employer to maintain more unnecessary accommodation).
To be entitled to a reasonable accommodation—and thus
to prove that the defendant failed to provide such a
reasonable accommodation—Gratzl has the burden of
establishing that she is a “qualified individual with a
disability” under the ADA. Yet she has presented no
evidence that she can perform the essential functions of
an Official Court Reporter in the DuPage County court-
house—including in-court reporting—with or without
reasonable accommodation. The only accommodation
she has suggested or indicated she would accept is, as a
14 No. 08-3134
matter of law, not a reasonable accommodation and
therefore not required by the ADA.
At this point, we have concluded that summary judg-
ment is appropriate because no reasonable jury could
conclude that Gratzl was qualified to perform as a court
reporter in the rotation required by the DuPage County
Court. But even if we were to assume, arguendo, that
whether she was a qualified individual with a disability
was a disputed question of fact, it was still up to the
court officials—not Gratzl—to construct the accommoda-
tion. “An employer is not obligated to provide an em-
ployee the accommodation [s]he requests or prefers,
the employer need only provide some reasonable accom-
modation.” Mobley v. Allstate Ins. Co., 531 F.3d 539, 546 (7th
Cir. 2008); Gile, 95 F.3d at 499. The courthouse fulfilled
its obligation when it offered to assign Gratzl only to the
five courtrooms closest to restrooms, avoid assigning
her to in-court reporting in jury trials, and establish a
“high-sign” to signal to the judge when she needed a
short break.
Gratzl argues that this accommodation did not accom-
modate her disability for three reasons. First, she argues
that it did not account for the fact that delaying urinating
could damage her physically. But the accommodation
was structured precisely to conform to her physician’s
opinion that she needed to be able to reach a bathroom
within five minutes of feeling the urge to urinate, and
she has not explained why it would not. Second, she
argues that the accommodation was not compatible with
her condition because of the disruption it would cause:
No. 08-3134 15
proceedings could be disrupted by her need for frequent
and immediate breaks; court calls would go longer
because of the extra breaks; and court reporters would
need to be reassigned to cover for her if a trial began. But
these concerns are only relevant to whether the court
officials were required to offer the burdensome accom-
modation they did, and nothing prevents an employer
from doing more than what is required of it by the ADA.
Cf. Basith, 241 F.3d at 930 (refusing to punish an employer
for going beyond the requirements of the ADA). That
the court was willing to offer what even Gratzl describes
as a burdensome solution is evidence of the court’s com-
mitment to courtroom rotation as an essential function
of each court reporter as well as an indication of its com-
mitment to finding a solution that worked for both
sides. Finally, Gratzl argues that because the accommoda-
tion would require her to publicly request breaks in
open court, the resulting disruption would cause her
embarrassment about her condition and to feel that
the judges and other court reporters resented her. It is
understandable why Gratzl refused to accept these accom-
modations for personal reasons. But it was she, not the
court, who resisted the effort to accommodate. Her
prior position served her well for several years. That
position no longer exists.
The ADA requires an employer to “mak[e] reasonable
accommodations to the known physical and mental
limitations of an otherwise qualified individual.” 42 U.S.C.
§ 12112(b)(5)(A). The proposed accommodations here
satisfied that requirement, and for personal reasons,
Gratzl rejected them. By rejecting the proposed accommo-
16 No. 08-3134
dations, she was responsible for terminating the inter-
active process and hence not entitled to relief under the
ADA. Gile, 95 F.3d at 499 (“[W]hen an employee re-
quests a transfer as reasonable accommodation and the
employer offers alternative reasonable accommodation,
which the employee then refuses, the employer cannot
be liable for failing to reasonably accommodate the em-
ployee by not transferring him to another position.”)
III.
For the foregoing reasons, Gratzl has not established
that she was a “qualified individual with a disability”
under the ADA. And even if she was qualified for the
modified court reporter position, Gratzl is still not entitled
to relief under the ADA because she rejected the court’s
proposed accommodation. Therefore, we A FFIRM the
judgment of the district court.
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