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, Circuit Judges, and

SPRINGMANN, District Judge.*

The Honorable Theresa L. Springmann of the Northern District of *

Indiana, sitting by designation.
2 No. 14-2958

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, aMechanic’sHelper 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
No. 14-2958 3

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
4 No. 14-2958

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 businessnecessity”); 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 positionthat 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
No. 14-2958 5

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 towhich functions

are essential;

(ii) Written job descriptions prepared before advertising orinterviewing 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 collectivebargaining 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
6 No. 14-2958

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. §
No. 14-2958 7

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.” Second, and more importantly, the 1

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.

The job description is less equivocal where it states that a duty of 1

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.
8 No. 14-2958

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
No. 14-2958 9

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
10 No. 14-2958

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’sHelper 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
No. 14-2958 11

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
12 No. 14-2958

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
No. 14-2958 13

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 transportationdepartment, 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
14 No. 14-2958

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.