After examining the briefs and the record, we have concluded 

that oral argument is unnecessary. Thus, the appeal is submitted

on the briefs and the record. See FED. R. APP. P. 34(a)(2). 

In the

United States Court of Appeals

For the Seventh Circuit

No. 08-2052

GAIL KING,

Plaintiff-Appellant,

v.

CITY OF MADISON,

Defendant-Appellee.

 

Appeal from the United States District Court 

for the Western District of Wisconsin.

No. 07-cv-295-bbc—Barbara B. Crabb, Chief Judge.

 

SUBMITTED OCTOBER 8, 2008 —DECIDED DECEMBER 4, 2008 

 

Before RIPPLE, WOOD, and TINDER, Circuit Judges.

WOOD, Circuit Judge. Gail King sued her former employer, the City of Madison, Wisconsin, claiming that the

City failed to accommodate her disability in violation of

the Americans with Disabilities Act, 42 U.S.C. § 12112, and
2 No. 08-2052

the Rehabilitation Act, 29 U.S.C. § 794. The district court

granted summary judgment to the City and later denied

King’s motion to alter or amend the judgment under FED.

R. CIV. P. 59(e). We have reviewed the district court’s

decision de novo; finding no error, we affirm.

King worked for the City as a transit operator (more

colloquially, a bus driver) until she became unable to work

from the combined effect of several factors: a high-risk

pregnancy, diabetes, and migraine headaches. She requested, and the City approved, leave without pay beginning on February 23, 2003. Initially King was placed on a

six-month disability leave of absence, and later she was

transferred to layoff status for a period of eighteen months.

During her disability layoff and following her pregnancy,

King was treated for chronic diabetes, headaches, and

intermittent, severe dizziness. 

King’s job was governed by a collective bargaining

agreement between the City and the International Brotherhood of Teamsters Local 695. The collective bargaining

agreement stated that during disability layoff, King

retained the right “to displace the most junior employee in

any job classification equal to or lower in range than his or

her original position within the bargaining unit.” She also

had the right to fill any vacant position within her bargaining unit for which she was qualified and retained the right

to compete for vacant City positions in other bargaining

units.

After she had been on leave for approximately fourteen

months, King received her physician’s authorization to

return to work, but the doctor barred her from driving a
No. 08-2052 3

bus. Based on King’s seniority and classification range, the

only position that she had a right to demand within her

bargaining unit was that of transit operator. Her medical

restrictions, however, ruled that job out. King wanted to

bump into an “operations tech II” position, but she was not

eligible for it because the job was in a higher classification

range than her transit operator position. She applied for

five vacant clerical positions in other bargaining units but

was not selected as the most qualified applicant. 

After two years of leave, the City terminated King’s

employment, as it was entitled to do under section 20.8 of

the collective bargaining agreement. She then sued the

City, asserting that it had unlawfully failed to accommodate her disability. The district court granted summary

judgment in favor of the City, holding that King was not a

qualified individual with a disability under the ADA

because her medical conditions did not substantially limit

her in the major life activity of working. The district court

further held that the City had provided her with a reasonable accommodation, noting that the City had no obligation

to override the labor contract on King’s behalf. 

King asked the district court to reconsider its ruling

based on newly acquired evidence. The court construed her

request as a motion to amend or alter the judgment under

Rule 59(e). In that motion, King presented for the first time

evidence that the State of Wisconsin had found her disabled for purposes of state law, and she argued that this

evidence contradicted the district court’s conclusion that

she was not disabled under the ADA. The district court

denied the motion, noting that King had not explained why
4 No. 08-2052

On September 25, 2008 the President signed the Americans 

with Disabilities Act Amendments of 2008, Pub. L. No. 110-325,

122 Stat. 3553. These amendments, which amended and arguably broadened the ADA’s definition of “disability,” become

effective January 1, 2009, and therefore do not apply to this case.

she had not submitted the evidence sooner. The court also

observed that the state’s finding of disability had no

bearing on the question whether King was disabled for

purposes of the ADA. 

To survive the City’s motion for summary judgment on

her failure-to-accommodate claim, King needed to present

evidence that, if believed by a trier of fact, would show that

she is a qualified individual with a disability, that the City

was aware of her disability, and that the City failed to

reasonably accommodate that disability. See EEOC v.

Sears, Roebuck & Co., 417 F.3d 789, 797 (7th Cir. 2005). The

Rehabilitation Act, which applies to programs receiving

federal financial assistance, also requires employers to

accommodate qualified individuals with a disability and

incorporates the standards of the ADA. See 29 U.S.C.

§ 794(d); Garg v. Potter, 521 F.3d 731, 736 (7th Cir. 2008);

Jackson v. City of Chicago, 414 F.3d 806, 810 (7th Cir. 2005).

Even if we assume that King is disabled for purposes of

the ADA, she could not survive the City’s motion for 

summary judgment because the City provided her with a

reasonable accommodation. King is correct to note that the

ADA recognizes reassignment to a vacant position as a

potentially reasonable accommodation if a disabled

employee is unable to perform the essential functions of a
No. 08-2052 5

job. 42 U.S.C. § 12111(9)(B). On the other hand, employers

are not required “ ’to reassign a disabled employee to a

position when such a transfer would violate a legitimate,

nondiscriminatory policy of the employer.’ ” EEOC v.

Humiston-Keeling, Inc., 227 F.3d 1024, 1028 (7th Cir. 2000)

(quoting Dalton v. Subaru-Isuzu Auto., Inc., 141 F.3d 667, 679

(7th Cir. 1998)). Nondiscriminatory hiring and reassignment provisions of a collective bargaining agreement

qualify as such a policy. Winfrey v. City of Chicago, 259 F.3d

610, 618 (7th Cir. 2001). 

The record shows that the City complied with the

collective bargaining agreement and considered King for

other vacant positions. Based on the placement policies

contained in the agreement, however, King had no right to

bump another employee from the other available positions

within her collective bargaining unit. She failed in her

effort to obtain a position outside her unit because she was

not the most qualified candidate. As far as this record

shows, the City applied its disability layoff policies in a

neutral, nondiscriminatory way and accommodated King

as far as it could. See Winfrey, 259 F.3d at 618 (holding that

employer was not required to assign disabled employee to

job reserved for union members under collective bargaining agreement); Humiston-Keeling, 227 F.3d at 1026-27

(holding that employer was not required to reassign

disabled warehouse picker to clerical position if she was

not the most qualified applicant according to employer’s

nondiscriminatory policy).

Finally, King argues that the district court should have

granted her motion under Rule 59(e) on the ground of
6 No. 08-2052

newly discovered evidence. King contends that this

evidence, in conjunction with the disability determination

based on Wisconsin law, would make it clear that the

City’s efforts fell short of reasonable accommodation.

King’s new evidence, however, was available to her

throughout the litigation, and the district court therefore

did not abuse its discretion in denying the motion. See

County of McHenry v. Ins. Co. of the W., 438 F.3d 813, 819

(7th Cir. 2006); Neal v. Newspaper Holdings, Inc., 349 F.3d

363, 368 (7th Cir. 2003). 

Accordingly, we AFFIRM the judgment of the district

court.

12-4-08