Marc Shell v. Kevin Smith, et al

Filing

Filed opinion of the court by Judge Springmann. The judgment of the district court is VACATED and the case is REMANDED for further proceedings consistent with this opinion.. Michael S. Kanne, Circuit Judge; Ilana Diamond Rovner, Circuit Judge and Theresa L. Springmann*, District Court Judge. (* The Honorable Theresa L. Springmann of the Northern District of Indiana, sitting by designation.) [6670193-1] [6670193] [14-2958]

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In the

United States Court of Appeals
For the Seventh Circuit
No. 14-2958
MARC SHELL,
Plaintiff-Appellant,
v.
KEVIN SMITH, in his official capacity
as Mayor of the City of Anderson, et
al.,
Defendants-Appellees.

Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:13-CV-583 — Jane E. Magnus-Stinson, Judge.

ARGUED MARCH 31, 2015 — DECIDED JUNE 15, 2015

Before KANNE and ROVNER,
*
SPRINGMANN, District Judge.

*

Circuit

Judges,

The Honorable Theresa L. Springmann of the Northern District of
Indiana, sitting by designation.

and

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SPRINGMANN, District Judge. Plaintiff-Appellant Marc Shell
worked for the City of Anderson Transit System (CATS) as a
Mechanic’s Helper on the day shift. According to the job
description for the position, a Mechanic’s Helper may occasionally drive buses to field locations. A Commercial Driver’s
License (CDL) is required to drive the CATS buses. Shell’s
hearing and vision impairments prevent him from obtaining a
CDL. Nevertheless, he worked for twelve years in the position
without a CDL and without driving a bus. When general
manager Stephon Blackwell was appointed at CATS as part of
personnel changes made by the new mayor, he informed Shell
that his employment would be terminated unless he obtained
a CDL, as the job description required it. When Shell did not
get his CDL, Blackwell terminated his employment.
After he was fired, Shell sued the City under the Americans
with Disabilities Act (ADA) for failure to accommodate his
disability, leading to the termination of his employment. He
also alleged that his termination was politically motivated. The
district court granted summary judgment in favor of the City.
On appeal, Shell challenges only the district court’s entry of
judgment as a matter of law on his ADA claim. We agree that
a jury should decide whether the City violated the ADA.
The ADA provides that a covered employer shall not
“discriminate against a qualified individual on the basis of
disability.” 42 U.S.C. § 12112(a). “Discrimination,” for the
purposes of § 12112(a), includes “not making reasonable
accommodations to the known physical or mental limitations
of an otherwise qualified individual with a disability” unless
the employer “can demonstrate that the accommodation

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would impose an undue hardship on the operation of the
business.” 42 U.S.C. § 12112(b)(5)(A). To establish a claim for
failure to accommodate, a plaintiff must show that he is a
“qualified individual with a disability.” EEOC v. Sears, Robuck
& Co., 417 F.3d 789, 797 (7th Cir. 2005). A qualified individual
is defined as “an individual who, with or without reasonable
accommodation, can perform the essential functions of the
employment position.” 42 U.S.C. § 12111(8).
The issue on appeal is whether the record contains sufficient evidence from which a reasonable jury could conclude
that driving a bus was not an essential function of Shell’s job as
a Mechanic’s Helper. In deciding this question, we review the
district court’s grant of summary judgment de novo. Bay v.
Cassens Transp. Co., 212 F.3d 969, 972 (7th Cir. 2000). Summary
judgment is appropriate where the admissible evidence shows
that there is no genuine dispute as to any material fact and that
the moving party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(a); Lawson v. CSX Transp., Inc., 245 F.3d 916,
922 (7th Cir. 2001). In determining whether a genuine issue of
material fact exists, we view the record in the light most
favorable to the nonmoving party. Anderson v. Liberty Lobby,
477 U.S. 242, 255 (1986).
The City maintains that Shell was not a qualified individual
because he did not satisfy “the requisite skill, experience,
education and other job-related requirements of the employment position,” 29 C.F.R. § 1630.2(m). According to the City,
possessing a CDL is a lawful qualification standard—“job
related and consistent with business necessity”—that Shell
cannot meet. See 42 U.S.C. § 12113(a) (recognizing as a defense

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an employer’s “qualification standards” that deny a job to an
individual with a disability as long as those standards are
“job-related and consistent with business necessity”); see also 29
C.F.R. 1630.15(b)(1).
However, disposing of Shell’s claim is not that straightforward. The City could only require Shell to have a CDL if one
was necessary to perform an essential function of the Mechanic’s Helper position. See, e.g., Baert v. Euclid Beverage, Ltd.,
149 F.3d 626, 631–32 (7th Cir. 1998) (conflicting evidence on
issue of whether driving a truck was an essential function of
Driver Helper position precluded summary judgment in favor
of an employer despite its claimed policy that Driver Helpers
hold the same CDL the Drivers held). Driving a bus is the only
function of the Mechanic’s Helper position that requires a CDL.
So if driving a bus is not one of the fundamental job duties of
the position, the City could not use Shell’s inability to obtain a
CDL as the basis for his termination.
An essential function is a fundamental job duty required of
a person in the job; a marginal duty is not an essential function.
See 29 C.F.R. § 1630.2(n)(1). EEOC regulations provide:
A job function may be considered essential for any
of several reasons, including but not limited to the
following:
(i) The function may be essential because the reason
the position exists is to perform that function;
(ii) The function may be essential because of the
limited number of employees available among

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whom the performance of that job function can be
distributed; and/or
(iii) The function may be highly specialized so that
the incumbent in the position is hired for his or her
expertise or ability to perform the particular function.
29 C.F.R. § 1630.2(n)(2). Factors that may be taken into account
when determining whether a job duty constitutes an essential
function include:
(i)

The employer’s judgment as to which functions
are essential;

(ii)

Written job descriptions prepared before advertising or interviewing applicants for the job;

(iii) The amount of time spent on the job performing the function;
(iv) The consequences of not requiring the incumbent to perform the function;
(v)

The terms of a collective bargaining agreement;

(vi) The work experience of past incumbents in the
job; and/or
(vii) The current work experience of incumbents in
similar jobs.
29 C.F.R. § 1630.2(n)(3).
In advancing the importance of the driving requirement
and the corresponding CDL requirement, the City has relied
chiefly on a written job description for the Mechanic’s Helper

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position. According to a job description created in 1992, the
Mechanic’s Helper is “responsible for assisting with mechanic
duties, and washing, cleaning, lubricating, and refueling
vehicles.” This description of the job suggests that the Mechanic’s Helper assists only with vehicles. Several of the listed
duties deal specifically with vehicles. For example, a Mechanic’s Helper is to clean the buses, replace batteries and
lights, maintain fluid levels, perform various light mechanical
maintenance work on vehicles, report low quantities of
automotive supplies and pick up parts, and maintain equipment, tools, and work areas in clean and orderly condition. The
job description states that a Mechanic’s Helper “may occasionally drive and deliver buses to various field locations.” Other
duties listed in the job description have nothing to do with the
buses or mechanical duties. The job description states that a
Mechanic’s Helper cleans “garage and office areas, including
sweeping, mopping, washing windows and walls, and emptying trash; mows grass and trims around building; paints as
needed.”
Shell urges that the job description is just one factor to
consider. Indeed, as cited above, the regulations list it as just
one of several. The ADA itself requires that “consideration” be
given to the employer’s judgment as to what functions are
essential, and that a job description be “considered evidence of
the essential functions.” 42 U.S.C. § 12111(8). The employer’s
determination about what functions are essential is certainly
given weight, but it is one of seven factors the court should
consider, including “[t]he amount of time spent on the job
performing the function” and “[t]he consequences of not
requiring the [employee] to perform the function.” 29 C.F.R. §

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1630.2(n)(3)(iii), (iv); see also Miller v. Ill. Dep’t of Transp., 643
F.3d 190, 198 (7th Cir. 2011) (recognizing that under the federal
regulations, “the employer’s judgment is an important factor,
but it is not controlling” and “we also look to evidence of the
employer’s actual practices in the workplace”); DePaoli v.
Abbott Labs., 140 F.3d 668, 674 (7th Cir. 1998) (noting that while
we do not otherwise second-guess the employer’s judgment in
describing the essential requirements for the job, we do look to
see if the employer actually requires all employees in a
particular position to perform the allegedly essential functions). The district court, in giving deference to the City’s
position, did not consider any of the other § 1630.2(n) factors,
or draw reasonable inferences in Shell’s favor as required at the
summary judgment stage. The record contains facts that might
cause a reasonable jury to discount the City’s reliance on the
job description, particularly as it relates to the need to drive a
bus.
First, the language of the driving duty itself is qualified by
“may” and “occasionally.”1 Second, and more importantly, the
City’s actual practices suggest that the need for a day shift
Mechanic’s Helper to drive a bus is not fundamental to the job.
This same job description was in place when Shell was hired.

1

The job description is less equivocal where it states that a duty of
the position is to “[o]perate[] City vehicles in service, maintenance
and repair work.” However, it is unclear what operate means in
connection with maintenance, or how this is different from the
separate “may occasionally drive” requirement. It may be that the
former does not require a CDL. Shell’s designated evidence is that
he performed the operating function.

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It did not change for all twelve years that Shell filled the
position. Yet, driving buses on public roads was not part of his
regular duties for any portion of the twelve years he held the
position. Whenever Shell was required to be present at a field
location, he drove his own vehicle. Shell would run errands,
pick up parts and supplies, transport materials between the
CATS garage and terminal, and ride with the Director of
Operations or with the mechanics who were moving buses to
various locations for repairs. Although an employer’s ability to
assign duties to another employee does not make them
nonessential, see Basith v. Cook Cnty., 241 F.3d 919, 929 (7th Cir.
2001), it is difficult to see how the duty could be deemed
essential at the summary judgment stage when there is no
evidence that its reassignment impacted the City’s ability to
provide dependable transit services to its citizens in an efficient
or effective manner, or otherwise created a hardship or burden.
The City argues, without evidentiary proof, that not
requiring Shell to operate CATS vehicles, and instead requiring
other employees—who are not Mechanic’s Helpers—to do so,
would decrease the efficiency of CATS’s operations. The record
does not indicate how many CATS’s employees had CDLs and
were available to move a bus for repair purposes. We were
advised at oral argument that many of the employees hold
such a license, having started their careers as bus drivers.
Certainly, all the mechanics and the drivers have CDLs. A
reasonable inference is that driving a bus is not a function that
only a limited number of CATS’s employees can perform. Nor
is the record developed regarding how many times a mechanic
or driver might actually desire another employee to drive a
bus, or for what reasons, or how much time the task might

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take. While the amount of time spent performing a task is but
one factor to consider, a duty is “not essential if it [is] so small
a part that it could be reassigned to other employees at
negligible cost to the employer.” Kauffman v. Petersen Health
Care VII, LLC, 769 F.3d 958, 962 (7th Cir. 2014). Beyond its
conclusory statement, the City offers no evidence of any actual
burden on the operation of the transit system. This void exists
despite the fact that CATS operated for more than a decade
without requiring the Mechanic’s Helper on day shift to drive
a bus. Certainly, that is a sufficient length of time to realize a
negative impact and be able to present some evidentiary proof
of the same.
The City insists that it does have proof regarding the
negative consequences, and points to the Declaration of Rick
Garrett, who became the Director of Operations at the same
time that Blackwell became the General Manager after the new
mayor took office. Garrett explains that the employee hired to
replace Shell, Darrell Rensel, has a CDL and “can perform all
of the tasks identified in the Mechanic’s Helper job description.” (See Supp. App. 105, Decl. of Rick Garrett ¶ 10.) This
statement is no more pertinent to the question at hand than the
equally obvious statement that Shell cannot perform all the
duties identified. Additionally, stating that he “can perform”
tasks provides no insight into whether he actually performs
them, how often he performs them, or whether they are
necessary. The Declaration does not even single out driving
buses from all the other tasks listed in the job description, and
certainly does not address whether CATS’s operations would
be burdened by making other arrangements for the particular
duty of driving a bus. Garrett adds that “[h]aving a CDL, so

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Mr. Rensel can perform maintenance functions on CATS
vehicles, is an essential function of the Mechanic’s Helper
position.” This conclusory statement does not have evidentiary
value. Garrett does not even identify the “maintenance
functions” that Rensel “can perform.” Accordingly, the City is
left with no evidence on summary judgment to suggest that the
consequences of not requiring that the Mechanic’s Helper drive
a bus is a factor that weighs in its favor and should preclude a
jury trial.
The City argues that just because it restructured the job in
the past and allowed Shell to perform janitorial, but not all
mechanical, duties does not require it to continue to go beyond
the ADA’s requirements. The City relies on Winfrey v. City of
Chicago, 259 F.3d 610 (7th Cir. 2001), and Basith v. Cook County.,
241 F.3d 919 (7th Cir. 2001). This argument assumes that the
duty at issue is an essential function of the job, and that the
City previously accommodated Shell beyond what the ADA
demands when it did not require him to perform the duty. If
these assumptions are true, the City is correct. And while a jury
could ultimately agree with the City, genuine issues of material
fact preclude making these prerequisite assumptions at the
summary judgment stage of this case.
In Winfrey, the city developed a revised job description for
a ward clerk position to be held by an employee who had
become blind. However, the supervisor for the position was
not consulted and only found out the plaintiff was blind when
he showed up for work. The supervisor did not know how to
accommodate the plaintiff, so he only allowed him to answer
phones and take messages. A few months later, consultants
who worked on behalf of the blind came to the worksite to

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develop adjusted ward clerk duties. The supervisor prepared
a list of four “partial essential” ward clerk duties he thought
the plaintiff could perform. 259 F.3d at 613. The consultants
prepared a recommendation for the plaintiff that concluded
that he was capable of performing these ward clerk functions.
However, there were other ward clerk functions that the
plaintiff did not perform. Id. at 614. The city did not train the
plaintiff to perform all the duties required of a ward clerk.
Thus, he was not considered a full ward clerk, nor was he
remunerated as one in the scaled-down job. The plaintiff
desired a higher paying job, such as a full ward clerk, and sued
the city under the ADA for failing to accommodate his blindness. The plaintiff argued that the city’s willingness to create
the adjusted, limited ward clerk position demonstrated that
those four duties must have been the only essential duties of
the full ward clerk position. Responding to this argument, we
noted that it was “clear from the onset of this case that the City
created a modified ward clerk position for [the plaintiff],
consisting of duties that [his supervisor] believed he could
perform.” Id. at 616. The creation of the modified position did
not demonstrate that the four duties he performed were the
only essential duties for the unmodified position. Id.
The plaintiff in Basith was a pharmacy technician in a
county hospital. The evidence in the case established that
delivery of medications to the hospital’s patients was essential
to the functioning of the pharmacy, and that the pharmacy
technician was the best position to fulfill this need. Basith, 241
F.3d at 929. The plaintiff could not deliver medications to
patients, but desired to hold the pharmacy technician position
anyway. One of the plaintiff’s arguments against a finding that

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delivery was an essential function was that his employer had
previously created a position for him that did not require
delivery. We held that “[a]bsent independent evidence that the
function was non-essential, we do not believe it wise to
consider the special assignment as proof that delivery was not
an essential function because it would punish [the defendant]
for going beyond the ADA’s requirements.” Id. at 930 (stating
that the evidence showed that the job could be restructured,
not that delivery was non-essential). As we noted, Basith’s
suggested accommodation would have resulted in the restructuring of his job and the jobs of other employees, which the
ADA does not require. Id.
In both Winfrey and Basith the employers attempted to
accommodate employees who had become disabled during
their terms of employment by creating special positions that
required less than the full duties normally performed. These
were alternative positions to the jobs the plaintiffs desired. In
contrast, the City hired Shell into the Mechanic’s Helper
position knowing he had physical limitations that prohibited
him from obtaining a CDL and driving a bus. Whether Shell
was asked to perform less than all of the written duties is not
indicative of whether the City considered the duties he was not
expected to perform to be essential. Mark Baugher, who was
one of the Directors of Operations during Shell’s tenure,
indicated that Shell could do everything he needed him to do
as a Mechanic’s Helper (Supp. App. 195, Decl. of Mark
Baugher ¶ 11.) Having been employed in various CATS jobs
since 1979, Baugher was also able to testify that the vehicle
maintenance duties, such as oil changes and preventative
maintenance at the garage, were performed by the mechanics

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themselves, not the Mechanic’s Helpers, even when Shell was
not the Mechanic’s Helper. (Id. ¶ 12.) In contrast, the City
furnished no evidence regarding how the job was performed
before Shell filled it. From Baugher’s statements and Shell’s
continuous performance of the job for twelve years, a jury
could find that restructuring the task of driving a bus was a
reasonable response to a non-essential function of the Mechanic’s Helper position rather than a reassignment of an
essential duty. Cf. Miller, 643 F.3d at 197 (no summary judgment because a reasonable jury could find that a plaintiff who
was unable to work at heights in exposed positions was
“asking only that he be allowed to work as he had worked
successfully for several years” when his supervisors and coworkers permitted him to swap tasks among his fellow crew
members so that he could avoid that occasional task).
Additionally, it should be noted that there was no informed
“decision” that keeping Shell employed in the same position,
and doing the same duties he had done for twelve years prior,
was untenable because it required others to perform an
essential function of the position. Blackwell, who had been on
the job for one day before giving Shell the news that he would
be fired unless he obtained a CDL, looked only to the job
description to make this determination. Blackwell had no prior
experience managing a transportation department, and did not
review Shell’s performance or duties or the past practices of
CATS. Cf. Gratzel v. Office of Chief Judges, 601 F.3d 674, 680 (7th
Cir. 2010) (holding that when an employer decided to eliminate
a special position the plaintiff held by incorporating it as one
among many court reporter duties, which the plaintiff could
not perform, no ADA violation occurred because an employer

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is not required “to maintain an existing position or structure
that, for legitimate reasons, it no longer believes appropriate”).
Blackwell made no attempt to provide legitimate reasons for
discontinuing the existing structure of the CATS garage
operations.
Because there is evidence and reasonable inferences
favorable to both parties, and the factual record does not
establish as a matter of law that driving a bus was an essential
function of the Mechanic’s Helper position, this case must be
allowed to proceed to a jury. The judgment of the district court
is vacated, and the case is remanded for further proceedings
consistent with this opinion.