In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 01-4227

MAXCENE MAYS,

Plaintiff-Appellant,

v.

ANTHONY J. PRINCIPI, Secretary of Veterans Affairs,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 01 C 1418—Suzanne B. Conlon, Judge.

____________

ARGUED MAY 28, 2002—DECIDED SEPTEMBER 5, 2002

____________

Before BAUER, POSNER, and WILLIAMS, Circuit Judges.

POSNER, Circuit Judge. This is an appeal from the grant

of summary judgment to the defendant, the Veterans

Administration, in a suit under the Rehabilitation Act of

1973, 29 U.S.C. §§ 701 et seq., the counterpart for federal

agency defendants to the employment provisions of the

subsequently enacted Americans with Disabilities Act. The

plaintiff, a nurse at a VA hospital, injured her back helping to lift a 400-pound patient. After some weeks off work

she returned to duty as a light-duty nurse, a temporary

position (rather than a regular part of the hospital’s table

of organization) requiring less strength than the regular
2 No. 01-4227

nursing job the plaintiff had had when she was injured. A

year and a half later she was removed from the light-duty

job for reasons unrelated to her injury. Shortly before that

a physician had opined that the injury was permanent

and had restricted her (in the words of her opening brief

in this court) to “sedentary work, maximum lifts of 10

pounds, no work at or above shoulder level, and no patient lifting,” but added that she could return to her job

as a light-duty nurse. The light-duty nurse position having evaporated (and the hospital not obliged to recreate

it, that is, to “manufacture a job that will enable the disabled worker to work despite his disability,” Hansen v.

Henderson, 233 F.3d 521, 523-24 (7th Cir. 2000)), the hospital assigned her to a clerical support position that paid

a much lower salary although, with the workers’ compensation that she received for her injury, her after-tax income was (and, so far as appears, will continue to be) the

same as when she had been a nurse. She complains that

in reassigning her to the clerical job the VA failed to provide

a proper accommodation for her disability.

Originally she was complaining about racial discrimination as well and this has given rise to a procedural issue

pressed by the VA. The plaintiff had filed separate administrative complaints with regard to racial discrimination

and to disability and had brought this suit after the denial

of her racial-discrimination (and a related retaliation) complaint but while her disability complaint was still wending its way through the administrative process. Her initial

complaint in the district court did not refer to the administrative disability claim that she had filed, but before the

district judge ruled on the VA’s motion for summary judgment, the VA denied the plaintiff’s administrative disability claim on the ground that it was the subject of her lawsuit.
No. 01-4227 3

The suit was not premature, even though filed before

her administrative complaint was denied, because she had

waited the required 180 days after filing that complaint

before suing. 29 C.F.R. § 1614.407(b). The VA argues that

her initial complaint in the district court should have referred to the administrative disability complaint to make

clear that she had “exhausted” her administrative remedies

by waiting 180 days before suing (we put the word in

scare quotes because the right to sue is absolute after 180

days even if the agency is still mulling over whether to

grant the individual some administrative remedy). We

cannot see what difference that omission could have

made. The VA can’t complain about being surprised; it

denied the administrative complaint because the subject

of that complaint was the subject of her suit, and so it had

to know about the relation between the administrative

and judicial complaints. And if it was surprised, so what?

It won in the district court and does not argue that it could

defend against the plaintiff’s appeal more effectively if only

she had mentioned the administrative complaint at the

outset of the suit. And anyway when it received the judicial

complaint, the VA would as a matter of ordinary prudence,

and doubtless did, search its records to make sure the

plaintiff had filed an administrative complaint at least 180

days before suing, since otherwise the suit would be

premature.

The VA further argues that the plaintiff cannot complain

about any violation of the Rehabilitation Act that occurred

before December 5, 1999, because to challenge a personnel

action as a violation of the Act an employee must contact

a designated employment discrimination counselor “within 45 days of the effective date of the action.” 29 C.F.R.

§ 1614.105(a)(1). The action of which the plaintiff is complaining is being assigned to the clerical job, and that

occurred on November 16 and, according to the VA, she
4 No. 01-4227

did not contact the counselor until 45 days after December

5 (so January 19, though oddly the VA does not indicate

the date). The plaintiff contends, however, that she contacted the counselor on December 16, which if so placed

the job assignment that she claims violated the Act well

within the 45 days. As the dispute cannot be resolved on

the present record, she gets the benefit of the doubt.

We move on to the substantive issues, where an initial

puzzle is the silence of the briefs and the district judge

on the question whether the plaintiff even has a disability

within the meaning of the Rehabilitation Act. This has

merely been assumed, most surprisingly by the Veterans

Administration. A disability within the meaning of the Rehabilitation Act and the Americans with Disabilities Act

is a condition that, as we noted recently with reference

to the ADA (but the standard under the Rehabilitation Act

is the same, Toyota Motor Mfg., Kentucky, Inc. v. Williams,

122 S. Ct. 681, 689 (2002); Stein v. Ashcroft, 284 F.3d 721,

725 n. 2 (7th Cir. 2002); Silk v. City of Chicago, 194 F.3d

788, 798 n. 7 (7th Cir. 1999); Vinson v. Thomas, 288 F.3d

1145, 1152 n. 7 (9th Cir. 2002); McDonald v. Pennsylvania,

62 F.3d 92, 94-95 (3d Cir. 1995)), “substantially prevents

a person from engaging in one of the major activities of

life, such as walking, seeing, or reproduction.” Szmaj v.

American Tel. & Tel. Co., 291 F.3d 955, 956 (7th Cir. 2002).

We doubt whether lifting more than 10 pounds is such

an activity. Cf. Stein v. Ashcroft, supra, 284 F.3d at 725-26;

Duncan v. Washington Metropolitan Area Transit Authority,

240 F.3d 1110, 1115 (D.C. Cir. 2001) (en banc); Snow v. Ridgeview Medical Center, 128 F.3d 1201, 1207 (8th Cir. 1997);

Williams v. Channel Master Satellite Systems, Inc., 101 F.3d

346, 349 (4th Cir. 1996) (per curiam). It is not as if the plaintiff were missing an arm. Compare Gillen v. Fallon Ambulance Service, Inc., 283 F.3d 11, 23 (1st Cir. 2002). The physician who determined the severity and duration of her back
No. 01-4227 5

injury thought she could return to her job as a light-duty

nurse. The number of Americans restricted by back problems to light work is legion. They are not disabled. See

Contreras v. Suncast Corp., 237 F.3d 756, 762-63 (7th Cir.

2001); Ray v. Glidden Co., 85 F.3d 227, 228-29 (5th Cir. 1996)

(per curiam). Any challenge to the plaintiff’s claim to be

disabled has been forfeited, but we have thought it prudent to register our doubts lest our opinion be assumed by

its silence to endorse the proposition that a back injury

that merely limits a person’s ability to lift heavy objects

creates a disability within the meaning of federal disability

law.

The plaintiff (assuming as we shall in light of the defendant’s forfeiture that she does have a disability) argues that if only the VA had engaged with her in the

“interactive process” that federal disability law has been

understood to contemplate, see, e.g., Rehling v. City of

Chicago, 207 F.3d 1009, 1015-16 (7th Cir. 2000); 29 C.F.R.

§ 1630.2(o)(3)—that is, if only its human-relations or other

management-level personnel had made suggestions for

accommodating her disability rather than waiting for her

to propose something (“consultative process” strikes us

as a more perspicuous term than “interactive process”)—

it would quickly have discovered that her disability could

be accommodated as she preferred: either by restoring

her to her original nurse’s job stripped of its lifting

duties, or by assigning her to a nurse’s job that involved

no contact with patients, that is, a purely administrative

position but one requiring knowledge of nursing, unlike

the clerical position that she was given.

She acknowledges as she must in light of the cases

that “failure to engage in this ‘interactive process’ cannot

give rise to a claim for relief, however, if the employer can

show that no reasonable accommodation was possible.”
6 No. 01-4227

Hansen v. Henderson, supra, 233 F.3d at 523. (Similar but

more emphatic is Morton v. United Parcel Service, Inc., 272

F.3d 1249, 1256 (9th Cir. 2001); cf. Ballard v. Rubin, 284

F.3d 957, 960 (8th Cir. 2002).) We think the best understanding of the brief passage in Hansen concerning burden shifting is that the (only) consequence of the employer’s failing to consult with the employee concerning a

possible accommodation of the employee’s disability

is to shift the burden of production concerning the availability of a reasonable accommodation from the employee

to the employer. The plaintiff cannot seek a judicial remedy for the employer’s failure to accommodate her disability without showing that a reasonable accommodation

existed. But if it existed yet she failed to obtain it because the employer had not consulted her in order that

“together they can identify the employee’s needs and

discuss accommodation options,” the fault in the failure

to make the accommodation available would be the employer’s and he would lose. Emerson v. Northern States

Power Co., 256 F.3d 506, 515 (7th Cir. 2001); see also Ozlowski v. Henderson, 237 F.3d 837, 840 (7th Cir. 2001). The

purpose of the consultative process is to find a reasonable accommodation for the particular disabled employee, and if she proves that such an accommodation

existed, that nevertheless she did not receive it, and

that there was no consultative process, suspicion arises

that the reason her disability was not accommodated was

not that she turned down a reasonable accommodation

but that the employer failed to explain her options to

her and thus did not make it “available” to her in a practical

sense. The burden shifts to the employer to produce

some evidence that even if he failed to consult or “interact” with her, soliciting her suggestions for a reasonable

accommodation, etc., he offered her such an accommodation with sufficient clarity to make the accommodation
No. 01-4227 7

available to her in a practical sense, so that her rejecting

it was her own fault.

The principal significance of the consultative process

is not that the employee is likely to come up with a reasonable accommodation if only she is consulted, but that

she is quite likely to turn it down and either quit or sue

unless the employer explains why he can’t do more to

enable her to work despite her disability. That can be

presumed from the employer’s failure to consult but he

can meet the presumption with evidence that he said

enough to avoid being blamed for her failure to accept

his offer.

The interpretation that we have offered of the burdenshifting consequence of the employer’s failure to engage

in a consultative process with a disabled employee reconciles our cases with one another and also brings us into

harmony with the cases from the other circuits (all but

the Ninth) that say that the burden of showing that a

reasonable accommodation existed remains on the employee. See Shapiro v. Township of Lakewood, 292 F.3d

356, 359-60 (3d Cir. 2002); Frazier v. Simmons, 254 F.3d 1247,

1261 (10th Cir. 2001); cf. Lucas v. W.W. Grainger, Inc., 257

F.3d 1249, 1256 n. 2 (11th Cir. 2001). For present purposes, however, as we are about to see, all that matters is that every court, as far as we know, agrees with

Hansen that when no reasonable accommodation is possible the failure to jaw about accommodation is harmless. See, e.g., Kvorjak v. Maine, 259 F.3d 48, 53 (1st Cir. 2001).

The question whether the employer engaged in the

required consultative process and the question whether

there was a reasonable accommodation for the plaintiff’s

condition are often and here intertwined. The less that is

available in the employer’s enterprise in the way of reasonable accommodations to the employee’s particular
8 No. 01-4227

disability, the less there is to consult about with a disabled

employee seeking an alternative or reconfigured job with

the employer. It is evident that with no light-duty nursing positions open our plaintiff could not hold a job

that required contact with patients, because, if they are

heavy, as so many Americans are, she would not, limited

as she is to lifting 10 pounds, be able to support them if

they needed help walking (as they often do), to break

their falls (which are frequent in a hospital), to help them

into and out of bed, or to pick them up from the floor

after they have fallen. The hospital could not be required

to pair her with another nurse, or an orderly, who would

follow her around to help her lift patients. See Hansen v.

Henderson, supra, 233 F.3d at 523 (“the job that Hansen

would like would be a job in which another worker does

the sorting, then gives Hansen the mail to case, and then

when Hansen has done that carries the cases to the

truck, and Hansen then makes just curbside deliveries. . . .

Two new jobs would have to be manufactured, one for

Hansen and one for his helper. The Act does not require

that”); EEOC v. Amego, Inc., 110 F.3d 135, 148 (1st Cir.

1997). There was no reasonable accommodation that

would have enabled the plaintiff to return to her old job

as a regular staff nurse.

A few nursing jobs, however, do not require patient

contact, and of course finding a new job for a disabled

employee is one method of accommodating the employee’s disability. EEOC v. Humiston-Keeling, Inc., 227 F.3d

1024, 1026 (7th Cir. 2000); see 42 U.S.C. § 12111(9)(B). One

of the nursing jobs that does not involve patient contact is

that of “utilization nurse,” whose responsibility is to “go

to inpatient wards, review charts for appropriateness

of treatment and then make recommendations to the

chief of staff as to whether or not in their opinions these

patients were being treated properly. If they were being
No. 01-4227 9

kept in the hospital for too long for no reason, if they were

given tests that were not really related to their diagnosis, those were the kinds of things that utilization review does.” Those tasks the plaintiff had the physical ability to perform, and openings for such jobs were posted

and she applied for them but was turned down—but

was turned down for reasons unrelated to her physical

condition.

She claims that her supervisor testified that there “were

administrative nursing positions that Plaintiff was able

to perform with her physical limitations.” He had said in

a letter to her that “your [physical] condition does not

eliminate you for administrative Nursing positions, other than patient care areas.” He testified in his deposition that what he had meant was “that there were other

administrative nursing positions that may have been

available or would become available, that she was still

eligible to apply for those positions.” She does not take

issue with this explanation, which makes clear that the

supervisor did not testify that she was qualified to be a

utilitization nurse or any other kind of nurse that

does not do any patient care. She was not physically disqualified, but obviously these positions require more

than the ability to sit. They require professional skills and

experience that she may have lacked.

But assuming that she was qualified for such a job,

if nevertheless there were better-qualified applicants—

and the evidence is uncontradicted that there were—the

VA did not violate its duty of reasonable accommodation

by giving the job to them instead of to her. Id. at 1026-29;

Daugherty v. City of El Paso, 56 F.3d 695, 700 (5th Cir.

1995); see also Williams v. United Insurance Co. of America,

253 F.3d 280, 282 (7th Cir. 2001). This conclusion is bolstered by a recent decision of the Supreme Court which
10 No. 01-4227

holds that an employer is not required to give a disabled

employee superseniority to enable him to retain his job

when a more senior employee invokes an entitlement to

it conferred by the employer’s seniority system. U.S. Airways, Inc. v. Barnett, 122 S.Ct. 1516, 1519, 1524-25 (2002). If

for “more senior” we read “better qualified,” for “seniority

system” we read “the employer’s normal method of filling

vacancies,” and for “superseniority” we read “a break,” U.S.

Airways becomes our case.

As a matter of fact, the VA did accommodate the plaintiff’s disability, and the accommodation was reasonable.

The clerical position to which it reassigned her gave her the

same net after-tax salary as she had earned as a nurse

though with fewer fringe benefits and, because it did not

draw on her nursing skills, fewer career advantages. It

was not a perfect substitute. But an employer is not required to provide the accommodation for a disabled employee that is ideal from the employee’s standpoint, only

one that is reasonable in terms of costs and benefits. See

Oconomowoc Residential Programs, Inc. v. City of Milwaukee,

2002 WL 1811325, at *7-8 (7th Cir. Aug. 8, 2002); Hoffman

v. Caterpillar, Inc., 256 F.3d 568, 577 (7th Cir. 2001); Vande

Zande v. Wisconsin Dept. of Administration, 44 F.3d 538, 542-43

(7th Cir. 1995); Reed v. LePage Bakeries, Inc., 244 F.3d 254, 259-

60 (1st Cir. 2001); Gaul v. Lucent Technologies, Inc., 134 F.3d

576, 580-81 (3d Cir. 1998); Monette v. Electronic Data Systems Corp., 90 F.3d 1173, 1183 and n. 10 (6th Cir. 1996);

Borkowski v. Valley Central School District, 63 F.3d 131, 138

(2d Cir. 1995). Neither of the “ideal” accommodations from

the plaintiff’s standpoint—restoring her to a regular nursing job with patient contact or assigning her an administrative nursing job without patient contact—was reasonable. She was not qualified for the first (and it would not

have been a cost-justified accommodation to pair another
No. 01-4227 11

employee with her to do the lifting) and not as well qualified as competing applicants for the second.

She has an ancillary beef, that the district judge granted

the VA’s motion for summary judgment before ruling

on her motion to compel discovery. Ordinarily that would

indeed be a no-no. Farmer v. Brennan, 81 F.3d 1444, 1449-50

(7th Cir. 1996); Dean v. Barber, 951 F.2d 1210, 1213-14 (11th

Cir. 1992). But not in the peculiar circumstances of this

case. The plaintiff’s lawyer had served interrogatories on

VA personnel seeking information about the existence,

requirements, and availability of nursing jobs in the VA

that did not involve patient care. It was because the responses were so inadequate, implying as they did that

the VA had no information relevant to the inquiry,

that the plaintiff’s lawyer filed a motion to compel fuller

answers. In response the VA offered the lawyer the individuals who had prepared the interrogatory responses,

for him to depose. The offer was not particularly generous.

The VA employees whom he was being invited to depose were the very ones who had failed to answer his

interrogatories. How likely was it that he would extract helpful information from them by questioning them

at a deposition? Not very; for he did depose them, and

obtained nothing of value. The VA argues in this court

that there is nothing more in its files that could help him.

He argues that there must be, but that is not an adequate

response.

The district judge did not jump the gun and deny summary judgment before the plaintiff’s lawyer had an opportunity to depose the VA witnesses or present other

evidence obtainable from the VA, in which event the grant

of summary judgment would indeed have been premature. There is no indication that any such evidence exists.

So what the argument of the plaintiff’s lawyer comes down
12 No. 01-4227

to is that the judge should have punished the VA’s footdragging by denying summary judgment. The failure to

do this was not an abuse of the judge’s discretion. Weeks

v. Samsung Heavy Industries Co., 126 F.3d 926, 943 (7th

Cir. 1997). Indeed, had the judge done what the plaintiff

is asking, the punishment would have been disproportionate to the crime, since the plaintiff has not shown that

she was harmed. It’s not as if she were seeking reimbursement for the expense of depositions that would have been

unnecessary had the VA responded adequately to the interrogatories. She is not.

AFFIRMED.

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-97-C-006—9-5-02