Hon. Sharon Johnson Coleman of the Northern District of 

Illinois, sitting by designation.

In the

United States Court of Appeals

For the Seventh Circuit

No. 11-2880

TERRI BASDEN,

Plaintiff-Appellant,

v.

PROFESSIONAL TRANSPORTATION, INC.,

Defendant-Appellee.

Appeal from the United States District Court

for the Southern District of Indiana, Evansville Division.

No. 10 CV 00002—William T. Lawrence, Judge.

ARGUED FEBRUARY 10, 2012—DECIDED MAY 8, 2013

Before RIPPLE and ROVNER, Circuit Judges, and COLEMAN,

District Judge.



COLEMAN, District Judge. Terri Basden filed a complaint alleging that she was terminated from her employment with Professional Transportation, Inc. (PTI) in
2 No. 11-2880

violation of the Americans With Disabilities Act (ADA)

and the Family and Medical Leave Act (FMLA). The

district court found that Basden had failed to present

evidence sufficient to establish a prima facie right to the

protection of either statute and granted summary judgment in favor of PTI. We affirm.

The parties do not dispute the facts underlying this

action. PTI provides around-the-clock ground transportation service for railroads seeking to move their train

crews from one route to another. Basden was engaged

by PTI as a dispatcher on June 29, 2007. Employees at

PTI’s dispatch center were subject to an attendance

policy that defined an incident of absenteeism as a

period away from a scheduled shift for a minimum of

four hours. An absence of up to five consecutive shifts

for a single reason could be considered one incident.

The attendance policy provided that after an employee’s

fifth incident within a year, a verbal warning could

be given; after her sixth incident, a written warning

could be given; after her seventh, a three-day suspension

could be given; and after her eighth, she could be terminated. The policy did not differentiate between absences for medical reasons and other absences.

Basden had two absentee incidents in 2007, and the

record does not reveal the cause of those absences.

In January 2008, Basden became dizzy and fell in her

home. She was treated at an emergency room, and the

attending physician referred her to a neurologist after

a CT scan showed abnormalities that suggested that

she might have multiple sclerosis. She was absent from
No. 11-2880 3

work from January 14 through January 17, and this

absence was treated as her third incident. She had another episode of dizziness and returned to the emergency room on February 1, which resulted in another

absence and her fourth incident under the dispatch

center policy. Basden was absent from March 13 through

March 15, which was considered her fifth incident

and prompted a verbal warning. Absences on April 7,

April 8, and April 11 through April 14 were treated as

a sixth incident, resulting in a written warning.

She provided a note from her physician after each of

her absences, and made an appointment to see an

MS specialist on June 23, 2008, the first available date.

She had been assigned “closer” duties, which required

more typing than the pure dispatcher role, and when

she began to feel numbness in her hands, she asked to

be relieved of closer assignments. The company moved

her back to dispatcher, but eventually returned her

to the closer duties. Basden also asked to be moved to

a part-time position. The position she sought in her

first request was given to another employee, but a

second request was granted and she moved to part-time

work on May 1, 2008.

Basden was absent again on May 22, 2008 and was

suspended for three days. PTI’s policy permitted an

employee with at least a year’s tenure to request an

unpaid 30-day leave of absence. On May 23, 2008,

Basden submitted a leave request form, even though

she had not yet been with the company for a year. On

the form, she indicated that the leave was necessary
4 No. 11-2880

because of “complications due to medical illness (MS).”

That request was denied, and when Basden failed to

return to work following her suspension, her employment was terminated. Basden’s complaint alleged that

her termination violated both the ADA and the FMLA.

The district court entered summary judgment in favor

of PTI. We review that decision de novo. Narducci v.

Moore, 572 F.3d 313, 318 (7th Cir. 2009).

ADA Claim

Basden claims that PTI violated the ADA when it

denied her request for a 30-day leave and instead terminated her. To prevail on an ADA claim, a plaintiff must

show that (1) she is disabled; (2) she is otherwise

qualified to perform the essential functions of her job

with or without reasonable accommodation; and (3) her

employer took an adverse job action against her because

of her disability or without making a reasonable accommodation for it. Winsky v. Cook County, 563 F.3d 598,

603 (7th Cir. 2009). To survive a motion for summary

judgment, she must present the court with evidence that,

if believed by a trier of fact, would establish each of the

elements of her claim. Kotwica v. Rose Packing Co., Inc., 637

F.3d 744, 748 (7th Cir. 2011). In the present case, Basden

failed to present sufficient evidence that she was

qualified to perform the essential functions of her job

even with a reasonable accommodation.

An employer is generally permitted to treat regular

attendance as an essential job requirement and need not

accommodate erratic or unreliable attendance. EEOC v.
No. 11-2880 5

Yellow Freight System, Inc., 253 F.3d 943, 948-49 (7th Cir.

2001). A plaintiff whose disability prevents her from

coming to work regularly cannot perform the essential

functions of her job, and thus cannot be a qualified individual for ADA purposes. Waggoner v. Olin Corp., 169

F.3d 481, 484-85 (7th Cir. 1999). Her ability to come to

work, or to otherwise perform the essential functions of

her job, is examined as of the time of the adverse employment decision at issue. Ammons v. Aramark Uniform

Services, Inc., 368 F.3d 809, 818 (7th Cir. 2004). In

response to an employer’s motion for summary judgment, it is the plaintiff’s burden to produce evidence

sufficient to permit a jury to conclude that she would

have been able to perform the essential functions of

her job with a reasonable accommodation. Hammel v. Eau

Galle Cheese Factory, 407 F.3d 852, 863-64 (7th Cir. 2005).

As of the May 2008 termination of her employment, Basden had been told by physicians that it was

likely that she had MS, but had not yet seen the

specialist who made the conclusive diagnosis of her

condition. The record indicates that she did not start

medication for MS until July 2008.

The record does not show the extent to which that

medication alleviated her symptoms. At her deposition,

plaintiff testified that her condition got worse “a couple

times” after she left PTI, then “leveled off.” Her next

employment was with a company called “Koch Originals.”

While the record does not explicitly detail the length of

Basden’s stay at Koch, her deposition testimony does

suggest that her tenure was short. She recalled that she
6 No. 11-2880

worked at Koch during September 2008, and at her

June 2010 deposition, she testified that she had just begun a new part-time position after being unemployed

for approximately a year and a half. While working

at Koch, Basden had a two-week absence that she attributed to MS. Even with all reasonable inferences

from the foregoing drawn in Basden’s favor, we cannot

conclude that the evidence of her subsequent employment would permit a jury to find that the combination

of leave and medication would have enabled her to

return to work on a regular basis.

Basden did not present medical evidence regarding

the effectiveness of her treatment. At her deposition, she

testified only that at the time she requested leave from

PTI, she had hoped that a diagnosis from a specialist

and the use of prescription medication would allow her

to return to work. In Weigel v. Target Stores, 122 F.3d 461,

468-69 (7th Cir. 1997), this court found that an affidavit

from the plaintiff’s psychiatrist stating that “there was

a good chance” that she would be likely to be able to

return to work with treatment was too conclusory and

uninformative to support a conclusion that an accommodation would have been successful. The court

affirmed summary judgment in favor of the employer

because of the plaintiff’s inability to establish the existence of a genuine issue of fact on the question of her

status as a qualified individual with a disability. Id. at 469.

In the present case, Basden responded to PTI’s summary judgment motion with evidence that medication

improved her condition; that she had hoped for enough
No. 11-2880 7

improvement to return to work regularly after leave;

and that she subsequently had brief employment that

was interrupted by a two-week absence caused by her

condition. This evidence was insufficient to support a

factual finding that Basden was able to come to work

regularly at the time of her termination, or that her

regular attendance could have been expected following

the leave she sought or with any other accommodation.

Basden contends that Haschmann v. Time Warner Entertainment Co., 151 F.3d 591 (7th Cir. 1998), supports her

argument for reversal of the district court, but the facts

presented to the Haschmann court are distinguishable

from those at issue here. In Haschmann, the plaintiff

had been diagnosed before her termination with a condition that caused an “intermittent” need for leave but

permitted her return to a normal work schedule thereafter. 151 F.3d at 599-600. The plaintiff’s prediction of

a brief need for leave was supported by her doctor.

Id. at 601. In contrast, at the time of Basden’s termination, she had no final diagnosis, no prescribed treatment, and no anticipated date by which she could

have been expected to attend work regularly even if she

had been granted leave.

Basden also argues that PTI failed to engage in the

interactive accommodation exploration process required by the ADA and that it did not establish that

the leave she sought was unreasonable. She correctly

notes that an employee’s request for an accommodation

requires the employer to engage in a flexible, interactive

process to identify a reasonable accommodation. Beck v.
8 No. 11-2880

University of Wisconsin Bd. of Regents, 75 F.3d 1130,

1135 (1996). Basden sought a 30-day leave that, according

to PTI’s policy, she would have been eligible to request

with two weeks’ additional seniority. Rather than

engage in an interactive process, PTI denied the request

for leave and terminated her. On the record presented,

we cannot conclude that PTI’s response to Basden’s

request was appropriate under the ADA.

However, the failure to engage in the interactive

process required by the ADA is not an independent

basis for liability under the statute, and that failure is

actionable only if it prevents identification of an appropriate accommodation for a qualified individual. Rehling

v. City of Chicago, 207 F.3d 1009, 1016 (7th Cir. 2000).

Even if an employer fails to engage in the required

process, that failure need not be considered if the employee fails to present evidence sufficient to reach the

jury on the question of whether she was able to perform the essential functions of her job with an accommodation. Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d

560, 563-64 (7th Cir. 1996). Because there was no evidence permitting a conclusion that Basden was a

qualified individual for ADA purposes, the district court

correctly entered summary judgment for PTI on her

ADA claim despite any shortcomings in PTI’s response

to her request.

FMLA Claim

Basden also sought relief from PTI for interference

with her FMLA rights. It is undisputed that Basden was
No. 11-2880 9

terminated before she had been employed by PTI for

12 months. According to the statute’s explicit terms,

employees without 12 months of tenure are ineligible

for its protection. 29 U.S.C. § 2611(2)(A)(I). Basden

argues that the statute should not be interpreted to preclude relief for non-eligible employees who request

leave for future periods. However, her request, made

before she was eligible for FMLA protection, sought

leave that would have commenced before her eligibility

began. Basden cites no authority for extending the

statute’s protections to her situation, and arguments for

such extension have been squarely rejected elsewhere.

“There can be no doubt that the request—made by an

ineligible employee for leave that would begin when

she would still have been ineligible—is not protected

by the FMLA.” Walker v. Elmore County Board of Educ.,

379 F.3d 1249, 1253 (11th Cir. 2004). We find no basis

for such extension here and hold that the district

court properly granted summary judgment for PTI on

Basden’s FMLA claim.

For the foregoing reasons, the judgment of the district court is affirmed.

5-8-13