Court of Appeals of Indiana | Opinion 19A-EX-2650| October 21, 2020 Page 1 of 23

ATTORNEYS FOR APPELLANT

Kevin D. Koons

Joseph C. Pettygrove

Kroger, Gardis & Regas, LLP

Indianapolis, Indiana

ATTORNEY FOR APPELLEE

Michael C. Healy

Staff Counsel

Indiana Civil Rights Commission

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Belterra Casino,

Appellant-Respondent/Cross-Appellee,

v.

Yufen (He) Dusan,

Appellee-Complainant/Cross-Appellant

October 21, 2020

Court of Appeals Case No.

19A-EX-2650

Appeal from the Indiana Civil 

Rights Commission

Caroline A. Stephens Ryker, 

Administrative Law Judge

ICRC No. EMha13101544

EEOC No. 24F-2014-0051

Crone, Judge.
Court of Appeals of Indiana | Opinion 19A-EX-2650| October 21, 2020 Page 2 of 23

Case Summary

[1] Belterra Casino hired Yufen (He) Dusan, a Chinese national, as a guest room 

attendant. Dusan injured her back and was placed on medical restrictions that 

could not be accommodated in her current position. Belterra gave Dusan a list 

of open positions, told her to work with human resources if she had any 

questions, and informed her that her employment would be terminated if she 

did not find a new position within thirty days. Dusan did not apply for any 

positions, stopped going to work, and was terminated. Dusan filed a complaint 

with the Indiana Civil Rights Commission (the Commission), alleging that 

Belterra had discriminated against her based on national origin and disability. 

After a hearing, an administrative law judge (ALJ) dismissed Dusan’s national 

origin claim but ruled in her favor on her disability claim, concluding that 

Belterra discriminated against her by failing to provide her with a reasonable 

accommodation for her disability. The ALJ awarded Dusan $76,583.41 in back 

pay but rejected her request for front pay. The Commission affirmed and 

adopted the ALJ’s order as its final order.

[2] Belterra now appeals, arguing that the Commission applied an incorrect burden

of proof, erred in finding that Dusan could perform the essential functions of a 

barista with or without an accommodation, and erred in finding that extending 

Dusan’s job-search period was a reasonable accommodation. Dusan crossappeals, arguing that she is entitled to front pay and more back pay. We agree 

with Belterra and therefore reverse the Commission’s ruling in favor of Dusan.
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Facts and Procedural History1

[3] In October 2013, Dusan filed a complaint with the Commission alleging that 

Belterra had discriminated against her based on national origin and disability. 

An ALJ held five days of hearings in December 2018 and February 2019. In 

May 2019, the ALJ issued an initial order with the following relevant findings:2

1. Belterra is a resort and casino property located in Florence, 

Indiana that employs more than 900 employees.

2. Dusan is a Chinese national who at the time relevant to her 

complaint lived and worked in Indiana.

3. In 2010, Belterra hired Dusan as a Guest Room Attendant. 

As a Guest Room Attendant, Dusan was responsible for cleaning 

hotel rooms on Belterra’s property, which included a great deal 

of manual labor like cleaning bathrooms, moving furniture, 

making beds, taking out trash, and vacuuming.

4. Although Dusan spoke very little English, Dusan was 

generally able to communicate with her supervisors and coworkers concerning the day-to-day functions of her position as 

Guest Room Attendant. However, communication was often 

complicated by the language barrier because Dusan primarily 

spoke, and still primarily speaks, Cantonese.

1 Indiana Appellate Rule 46(A)(6)(b), which is made applicable to appellees via Appellate Rule 46(B), 

provides that facts “shall be stated in accordance with the standard of review appropriate to the judgment or 

order being appealed.” Belterra points out that Dusan—who is represented by the Commission’s staff 

counsel on appeal—“states as ‘facts’ only her version of events and evidence favorable to her, without 

alerting this Court that the Commission found otherwise based on the evidence before it.” Appellant’s Reply 

Br. at 12. Because Dusan does not specifically allege, let alone establish, that the Commission’s factual 

findings are not supported by substantial evidence, we have disregarded any statements in her brief that are 

inconsistent with those findings.

2 We have replaced references to Complainant and Respondent with Dusan and Belterra, respectively.
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....

7. On April 16, 2012, Dusan sustained a back injury while 

cleaning a room on Belterra’s property. Dusan reported the 

injury to her supervisors....

8. Dusan arrived at work on April 19, 2012, her next scheduled 

work day, and requested to see a doctor for the first time.... 

Dusan’s Housekeeping Supervisor sent Dusan to Belterra’s 

Worker’s Compensation Clinic, the Carrol [sic] County 

Memorial Hospital (“Clinic”), to receive treatment from Dr. 

Nunnelley....

....

10. Dusan’s April 19, 2012 visit to the Clinic resulted in medical 

restrictions, including 1) not lifting over five (5) pounds, 2) 

minimized stooping, bending, or twisting, 3) no squatting, 

climbing, or crawling, and 4) working in a sit down job only. 

Her restrictions remained largely unchanged until June 6, 2012 

when the limitation of a sit down only job was removed and 

September 6, 2012 when her weight limit was changed to ten (10) 

pounds. Her permanent restrictions of limited bending and a 

lifting limit of ten (10) pounds went into effect on November 9, 

2012 when Dusan’s physician determined she had reached 

maximum medical improvement (“MMI”). At no time did 

Dusan’s physician ever restrict Dusan’s ability to engage in 

pushing or pulling.

11. As with other employees, Belterra accommodated Dusan’s 

physician-imposed restrictions through the transitional or “light” 

duty program (“transitional duty program”). Through the 

transitional duty program, employees were assigned a set of 

individually customized tasks within their physician’s restrictions 

with the goal of keeping the affected employees engaged in the 

workforce. The tasks assigned, which did not constitute a 
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position, were based on the employee’s restrictions and the 

availability of work. Because no business need existed for the 

tasks performed, transitional duty was designed to end once the 

employee reached MMI.

12. Dusan provided her physician’s restrictions to [Belterra’s risk 

and safety manager, Lee Smela,] so that Smela could assign 

compatible tasks. Accordingly, Dusan was placed on transitional 

duty in the laundry room because her restrictions could not be 

accommodated in the Guest Room Attendant position....

....

16. Once Dusan reached MMI, Belterra’s policy required that 

Dusan return to regular work. As the first step in the process, 

Smela reviewed Dusan’s restrictions and the essential functions 

of her current position as a Guest Room Attendant to see if she 

could be accommodated. Smela ultimately determined that 

Dusan’s restrictions could not be accommodated in the Guest 

Room Attendant position. As a result, Belterra’s policy 

mandated that Dusan find a different position where her 

restrictions could be accommodated.

....

18. On April 26, 2013, Smela, Belterra’s Team Member 

Relations Counselor (“TMR Counsel”), one of Belterra’s HR 

representatives, and Belterra’s Housekeeping Supervisor, met 

with Dusan and with the use of a phone translation service, 

explained to Dusan that she was responsible for finding and 

applying for a new position within thirty (30) days. To facilitate 

her search, Belterra’s TMR Counselor gave Dusan a list of open 

jobs and told her to work with HR if she had any questions. 

Dusan was also advised that if she did not find a new position 

within thirty (30) days, her employment with Belterra would be 

terminated.
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19. Of the positions provided to Dusan, Dusan contends that at 

the time of her discharge, she could perform the following 

positions, with or without a reasonable accommodation: a) 

Barista, b) Bartender, c) Concession Worker, d) Beverage Server, 

e) Cage Cashier, and f) Specialty Room Foodserver. The 

positions’ requirements with respect to Dusan’s restrictions and 

qualifications were:

a. Barista: the position required the ability to lift or carry 

items for one (1) to two (2) hours a day. During those one 

(1) to two (2) hours, the weight of the items carried could 

range from fifty (50) pounds to ten (10) pounds or less. 

Generally, the lifting involved with the Barista position 

involved stocking shelves, including heavy items like chips 

(30 pounds) and coffee (20-30 pounds). Bending and 

twisting was required for one (1) to two (2) hours a day for 

tasks such as bussing tables. Although a front-of-house 

position, the guest interaction required was limited to 

taking orders and manning the register.

....

20. Of the six (6) positions Dusan contends she could have 

worked at the time of her discharge, only the Barista position is 

plausibly a position that Dusan could have completed with or 

without a reasonable accommodation. Dusan did not have a 

liquor license in 2013, and accordingly, she was not qualified for 

the Bartender or Specialty Room Foodserver positions. As Dr.

Nunnelley testified, Dusan could not have performed the 

Concession Worker position in 2013 because she would not have 

been able to scoop ice cream, which was the core function of the 

position. As a Beverage Server, Dusan would be well outside of 

her limited bending instruction, and her limited English would 

disqualify her from being able to effectively handle guest 

complaints.
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21. However, Dusan could perform the essential functions of the 

Barista position that were affected by her qualifications (guest

communications, stocking shelves, and bussing tables) with or 

without an accommodation. The Barista position involved a 

more limited, vocation-specific and conversational vocabulary 

that would need to be learned on the job by any new employee, 

and Dusan could have been accommodated by having assistance 

with stocking the shelves with respect to the two items (chips and 

coffee) weighing over ten (10) pounds. Bussing tables falls within 

her restriction of limited bending, and although Dr. Nunnelley 

expressed concern about Dusan’s ability to bus tables, he also 

concluded that the extent of Dusan’s limitations might have best 

been determined based on a limited “...trial period to see what 

she could and couldn’t do.”

....

23. Although Smela and Belterra’s TMR Counselor 

characterized the job search process as a collaborative search 

effort between HR and Dusan, Belterra’s April 26, 2013 letter, 

Belterra’s May 30, 2013 letter, Dusan’s understanding, Smela’s 

notes, and Belterra’s own actions establish that Belterra placed 

the burden squarely on Dusan to find a new position. The sole 

assistance Belterra provided in the job search effort was a twopage list of positions open on April 26, 2013, without job 

descriptions, and a vague invitation to reach out for assistance. 

The totality of the evidence presented demonstrates that 

Belterra’s HR department did not actively look for positions that 

Dusan could have completed within her restrictions during the 

thirty (30) day period and did not reach out to Dusan outside of 

the April 26, 2013 meeting. Furthermore, although it was a 

possibility, Belterra did not extend Dusan’s thirty (30) days for a 

reasonable period of time in the event that additional, more 

compatible positions would become available.

24. During the thirty (30) day job search period, Dusan did not 

apply for any positions, and she stopped attending work. 
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Although Dusan and Belterra disagree as to whether Dusan left 

voice messages for Belterra’s employees that were unreturned 

and as to whether Dusan immediately indicated her interest in a 

number of positions during the April 26, 2013 meeting, the 

ultimate result of Dusan’s attempted communications was that 

Dusan did not successfully communicate to Belterra that she 

intended to apply for any position with Belterra. As a result, 

Dusan’s employment was terminated on May 29, 2013.

Appealed Order at 3-11 (footnotes and citations to administrative record 

omitted).

[4] The ALJ concluded that Dusan failed to prove that Belterra discriminated 

against her based on national origin and dismissed that claim. As for Dusan’s 

disability discrimination claim, the ALJ concluded that she had a disability

“because she could not perform manual labor, engage in extensive bending, and 

lift items that weighed over ten (10) pounds”; that Belterra was aware of the 

disability; and that Dusan requested a reasonable accommodation for her 

disability by providing her physician’s restrictions to Belterra. Id. at 17. The 

ALJ noted that “[o]nce an employee makes a reasonable accommodation 

request, the employer and the employee enter [an] interactive process, during 

which they engage in a conversational back and forth designed to identify 

possible accommodations.” Id. (citing Knox Cty. Ass’n for Retarded Citizens, 100 

N.E.3d 291, 307 (Ind. Ct. App. 2018), aff’d on reh’g, 107 N.E.3d 1111). The 

ALJ further noted that one option for an accommodation is reassignment to a 

vacant position for which the employee is qualified. The ALJ then concluded 

as follows:
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33. Belterra, at least on a surface level, attempted to provide 

reassignment as an accommodation to Dusan for her permanent 

work restrictions. However, Belterra’s attempted 

accommodation was really no accommodation at all. Belterra 

provided Dusan thirty (30) days to apply for a new position. The 

full measure of Belterra’s assistance was a two-page list of 

positions open on April 26, 2013, without job descriptions or any 

assessment by Belterra of Dusan’s ability to perform the essential 

functions of those positions. Instead, Belterra placed the burden 

squarely and solely on Dusan to apply for positions based on 

Dusan’s own understanding of her possible qualifications and 

limited Belterra’s duty to assess Dusan’s qualifications and

restrictions to the typical and competitive application process.

34. Belterra points to Dusan’s relatively passive response to 

Belterra’s directive to undercut Belterra’s own passive attempt to 

accommodate Dusan. However, “[i]t is not an employee’s 

responsibility ... to repeatedly prod a reticent employer.” EEOC 

v. Sears, Rosebuck [sic] & Co., 417 F.3d 789, 808 (7th [Cir.]

2005).

[3]

 Regardless of Dusan’s failure to more actively engage in 

a job search, the interactive process ultimately broke down 

because Belterra’s thirty (30) day application period and vague 

invitation to provide assistance offered Dusan nothing past what 

Dusan could have achieved on her own at any time by simply 

applying for new jobs with Belterra or any new employer. After 

all, Belterra had Dusan’s work restrictions and her general 

qualifications, and Belterra has not contended that Dusan would 

have provided missing, vital information (outside of her personal 

preference which Belterra was not required to consider) through 

the application process. Belterra effectively ended the interactive 

3 As noted elsewhere in the order, “Indiana Courts look to federal law and precedent for guidance when 

interpreting the ICRL [Indiana Civil Rights Law].” Appealed Order at 13 (citing Filter Specialists v. Brooks, 

906 N.E.2d 835, 838 (Ind. 2009)). The federal materials cited herein relate to the Americans with Disabilities 

Act (ADA), enacted in 1990. Indiana enacted statutes addressing employment discrimination against 

disabled people in 1992.
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dialogue on April 26, 2013 when Belterra communicated to 

Dusan that she would not be accommodated through job 

restructuring or through genuine reassignment.

35. If an employer fails to engage in the interactive process, the 

employer can still defeat an employee’s failure to accommodate 

claim if the employee could not be accommodated. [Knox Cty., 

100 N.E.3d at 308]; Hansen v. Henderson, 233 F.3d 521, 523 (7th 

Cir. 2000).

36. Importantly, when considering cases where the interactive

process has failed, courts have imposed a burden shifting test. If 

an employee proves that the employee was not accommodated 

and that the employer failed to participate in the interactive 

process, then the burden of production shifts to the employer to 

demonstrate that no reasonable accommodation existed. [Knox 

Cty., 100 N.E.3d at 308]; Mays v. Principi, 301 F.3d 866, 870 (7th 

Cir. 2002), abrogated by E.E.O.C. v. United Airlines, Inc., 693 F.3d 

760 (7th Cir. 2012) (on other grounds) (“... 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.”)[, cert. denied (2013)]; Hansen, 233 F.3d at 523. 

Ultimately, the burden of persuasion always rests on the 

employee, who must demonstrate that the employer’s statements 

concerning the inability to accommodate are false and that the 

employee could have been accommodated. Jackson v. City of 

Chicago, 414 F.3d 806, 813 (7th Cir. 2005).

37. Dusan was not qualified for most of Belterra’s positions 

available on April 26, 2013; however, Belterra has not provided 

credible evidence as to why Dusan could not have been 

accommodated through reassignment to the position of Barista 

with additional accommodations like minor job restructuring, the 

help of co-workers, or the use of occupational tools for her 

physician-imposed restrictions. Similarly, Belterra did not 
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explain why, if Belterra believed that Dusan could not perform 

any of the jobs open on April 26, 2013, Belterra did not extend 

Dusan’s thirty (30) day period for a reasonable period of time to 

allow for the possibility of future, compatible vacancies.

38. Belterra has not designated evidence that a seniority policy 

or collective bargaining policy made reassignment unreasonable 

or created undue hardship for Belterra.

39. Dusan could have been accommodated without imposing 

undue hardship on Belterra through reassignment to the Barista 

position, with additional accommodations made to limit her 

bending and lifting, or through a reasonable extension of her job 

search period to allow for possible future vacancies. 

Accordingly, Belterra discriminated against Dusan on the basis 

of disability by failing to provide her with a necessary reasonable 

accommodation.

Appealed Order at 20-22 (footnotes omitted). The ALJ awarded Dusan

$76,583.41 in back pay and denied her request for front pay. The ALJ also 

ordered certain Belterra employees to attend disability discrimination training 

and directed Belterra to submit for the Commission’s approval an internal 

policy for providing reasonable accommodations to employees.

[5] In October 2019, after a hearing on the parties’ objections to the ALJ’s order, 

the Commission affirmed and adopted the order as its final order. Belterra now 

appeals the ruling in favor of Dusan on her disability discrimination claim, and 

Dusan cross-appeals the amount of her award for back pay and the denial of her 

claim for front pay.
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Discussion and Decision

[6] “In reviewing an administrative decision, we must determine ‘whether 

substantial evidence, together with any reasonable inferences that flow from 

such evidence, support the [agency’s] findings and conclusions.’” Zeller Elevator 

Co. v. Slygh, 796 N.E.2d 1198, 1206 (Ind. Ct. App. 2003) (alteration in Zeller) 

(quoting Walker v. Muscatatuck State Dev. Ctr., 694 N.E.2d 258, 266 (Ind. 1998)), 

trans. denied (2004). In doing so, we neither reweigh the evidence nor judge the 

credibility of witnesses, and we consider only the evidence most favorable to the 

Commission’s findings. Id. We do not try the facts de novo, but an agency’s 

legal conclusions are ordinarily reviewed de novo. Moriarity v. Ind. Dep’t of Nat. 

Res., 113 N.E.3d 614, 619 (Ind. 2019). Law is the province of the judiciary, and 

our constitutional system empowers courts to draw legal conclusions. Zeller, 

796 N.E.2d at 1206. Therefore, we review conclusions of law to determine 

whether the Commission correctly interpreted and applied the law. Id.

[7] An agency’s “conclusions as to ultimate facts involve an inference or deduction 

based on the findings of basic fact.” McClain v. Review Bd. of Ind. Dep’t of 

Workforce Dev., 693 N.E.2d 1314, 1317 (Ind. 1998). “These questions of 

ultimate fact are sometimes described as ‘questions of law.’” Id. (quoting Hehr 

v. Review Bd. of Ind. Empl. Sec. Div., 534 N.E.2d 1122, 1124 (Ind. Ct. App. 

1989)). “They are, however, more appropriately characterized as mixed 

questions of law and fact.” Id. at 1317-18. As such, they are typically reviewed 

to ensure that the agency’s inference is reasonable or reasonable in light of the 

agency’s findings. Id. at 1318. “The term ‘reasonableness’ is conveniently 
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imprecise.” Id. Some questions of ultimate fact are within the agency’s special 

competence. Id. If so, it is appropriate for a court to accord greater deference 

to the reasonableness of the agency’s conclusion. Id. “In evaluating this 

conclusion, if no proposition of law is contravened or ignored by the agency 

conclusions, the ‘reasonable’ inference standard gives deference to the agency 

determination.” Id. Not all ultimate facts are within the agency’s area of 

expertise, however. Id.

As to these, the reviewing court is more likely to exercise its own 

judgment. In either case the court examines the logic of the 

inference drawn and imposes any rules of law that may drive the 

result. That inference still requires reversal if the underlying facts 

are not supported by substantial evidence or the logic of the 

inference is faulty, even where the agency acts within its 

expertise, or if the agency proceeds under an incorrect view of the 

law.

Id.

[8] Indiana Code Section 22-9-5-19 provides that an employer “may not 

discriminate against a qualified individual with a disability because of the 

disability of that individual in regard to” such things as the hiring or discharge 

of employees, job training, and “[o]ther terms, conditions, and privileges of 

employment.” “Discriminate” includes “[n]ot making reasonable 

accommodations to the known physical or mental limitations of an otherwise 

qualified individual with a disability who is an applicant or employee unless the 

[employer] can demonstrate that the accommodation would impose an undue 
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hardship on the operation of the business of the [employer].”4

 Ind. Code § 22-

9-5-7. A “qualified individual with a disability” is “an individual with a 

disability who, with or without reasonable accommodation, can perform the 

essential functions of the employment position that the individual holds or 

desires.” Ind. Code § 22-9-5-16. A “disability” is defined in pertinent part as “a 

physical or mental impairment that substantially limits at least one (1) of the 

major life activities of the individual[.]” Ind. Code § 22-9-5-6(a).

5 And 

“reasonable accommodation” includes “[j]ob restructuring, part-time or 

modified work schedules, reassignment to a vacant position, acquisition or 

modification of equipment or devices, appropriate adjustment or modification 

of examinations, training materials or policies, the provision of qualified readers 

4 Indiana Code Section 22-9-5-18 defines “undue hardship” as “an action requiring significant difficulty or 

expense when considered in light of” the following factors:

(1) The nature and cost of the accommodation needed under this chapter.

(2) The:

(A) overall financial resources of the facility or facilities involved in the provision of the 

reasonable accommodation;

(B) number of persons employed at the facility or facilities;

(C) effect on expenses and resources; or

(D) impact otherwise of the accommodation upon the operation of the facility or 

facilities.

(3) The overall financial resources of the covered entity [e.g., the employer], the overall size of 

the business of a covered entity with respect to the number of employees, and the number, type, 

and location of facilities.

(4) The type of operation or operations of the covered entity, including the composition, 

structure, and functions of the workforce of the entity, and the geographic separateness, 

administrative, or fiscal relationship of the facility or facilities in question to the covered entity.

5 “‘Major life activity’ means a function, such as the following: (1) Caring for oneself. (2) Performing a 

manual task. (3) Walking. (4) Seeing. (5) Hearing. (6) Speaking. (7) Breathing. (8) Learning. (9) 

Working.” 910 Ind. Admin. Code 3-2-9.
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or interpreters, and other similar accommodations for individuals with 

disabilities.” Ind. Code § 22-9-5-17.

[9] To prevail on a failure-to-accommodate disability discrimination claim, a 

plaintiff must establish that she was a qualified individual with a disability, that 

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

reasonably accommodate her disability. Sansone v. Brennan, 917 F.3d 975, 979 

(7th Cir. 2019). Belterra observes that the parties do not dispute that Dusan had 

a disability, that Belterra was aware of it, and that Dusan “was no longer a 

‘qualified individual’ for her previous position of Guest Room Attendant 

because she could not perform its essential functions with or without an 

accommodation.” Appellant’s Br. at 29. Belterra posits, and we agree, that 

“the dispute focuses on the third element of whether Belterra failed to 

reasonably accommodate Dusan once she received permanent work restrictions 

in April 2013,[6] including whether she was ‘qualified’ for Belterra’s open 

positions at the time of her discharge.” Id.

[10] “The plaintiff bears the burdens of both production and persuasion as to the 

existence of some accommodation that would allow her to perform the essential 

functions of her employment, including the existence of a vacant position for 

which she is qualified.” McBride v. BIC Consumer Prods. Mfg. Co., 583 F.3d 92, 

6 As indicated in the Commission’s order, Dusan reached MMI and received permanent work restrictions in 

November 2012. She then participated in physical therapy until April 2013, at which time her occupational 

physician reaffirmed her MMI status and permanent restrictions in a letter to Smela. Ex. Vol. 3 at 154 

(Belterra’s Ex. 8).
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97 (2nd Cir. 2009). “By contrast, with regard to the reasonableness of a 

proposed accommodation, a plaintiff bears only a light burden of production 

that is satisfied if the costs of the accommodation do not on their face obviously 

exceed the benefits. The burden of persuasion falls on the defendant 

employer.” Id. at n.3. To be qualified, the employee must satisfy the legitimate 

prerequisites for the vacant position and “be able to perform the essential 

functions of that position with or without reasonable accommodations.” Dalton 

v. Subaru-Isuzu Automotive, Inc., 141 F.3d 667, 678 (7th Cir. 1998). “An 

employer need not create a new job or strip a current job of its principal duties 

to accommodate a disabled employee. Nor is there any duty to reassign an 

employee to a permanent light duty position.” Gratzl v. Office of Chief Judges of 

12th, 18th, 19th, and 22nd Jud. Cirs., 601 F.3d 674, 680 (7th Cir. 2010) (citation 

omitted). A “plaintiff does not satisfy her burden to identify a potential 

accommodation merely by reciting the formula that her employer could have 

reassigned her. Instead, she must demonstrate the existence, at or around the 

time when accommodation was sought, of an existing vacant position to which 

she could have been reassigned.” McBride, 583 F.3d at 97-98; see also Novak v. 

Nicholson, 231 F. App’x 489, 492 (7th Cir. 2007) (“While Novak complains that 

without the VA’s help he was unable to find a vacant position, it was Novak’s 

responsibility in discovery to obtain the necessary evidence to support his 

failure to accommodate case, for instance, by requesting copies of vacancy or 

placement announcements.”).
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[11] “Identifying reasonable accommodations for a disabled employee requires both 

employer and employee to engage in a flexible, interactive process.” Knox Cty., 

100 N.E.3d at 306 (quoting Brown v. Milwaukee Bd. of Sch. Dirs., 855 F.3d 818, 

821 (7th Cir. 2017); see also 910 Ind. Admin. Code 3-2-14 (“To determine the 

appropriate reasonable accommodation, it may be necessary for the [employer]

to initiate an informal, interactive process with the qualified individual with a 

disability in need of the accommodation. This process should identify the 

precise limitations resulting from the disability and potential reasonable 

accommodations that could overcome those limitations.”). Only if an 

employee satisfies her burden to show that a vacant position exists for which 

she was qualified may a court then “consider whether ‘failure to provide that 

accommodation was due to a breakdown in the interactive process.’” Jackson, 

414 F.3d at 806 (quoting Ozlowski v. Henderson, 237 F.3d 837, 840 (7th Cir. 

2001)). There is no separate cause of action for a failure of the interactive 

process, and because the process is not an end in itself, it is not sufficient for an 

employee to show that an employer failed to engage in the process or caused 

the process to break down. Bunn v. Khoury Enters., Inc., 753 F.3d 676, 683 (7th 

Cir. 2014); see also Mays, 301 F.3d at 871 (“[W]hen no reasonable 

accommodation is possible the failure to jaw about accommodation is 

harmless.”).

[12] In this case, the Commission found as follows: (1) that Belterra caused the 

interactive process to break down; and (2) that Belterra could have 

accommodated Dusan’s disability by reassigning her to a barista position or by 
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extending the thirty-day job-search window by a “reasonable period of time[.]” 

Appealed Order at 22. Belterra challenges both findings, but we need not 

address the first because we agree with Belterra that Dusan failed to carry her 

burden of demonstrating the existence of a reasonable accommodation for her 

disability.

[13] At the outset, Belterra contends that the Commission “incorrectly applied the 

burden of proof” by “suggest[ing] possible accommodations—which Dusan 

herself never asserted—for the first time in its ALJ’s Order, and then [holding] 

Belterra responsible for failing to disprove the reasonableness of those 

accommodations.” Appellant’s Br. at 34 (citing Commission’s conclusion 37). 

We agree. Belterra suggests—correctly, in our view—that the burden-shifting 

test in conclusion 36 of the Commission’s order appears to be based on a 

“truncated and incomplete” quotation from Hansen, 233 F.3d 521, in Knox 

County, 100 N.E.3d 291. Reply Br. at 18. As the Seventh Circuit Court of 

Appeals thoroughly explained in Mays,

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 
Court of Appeals of Indiana | Opinion 19A-EX-2650| October 21, 2020 Page 19 of 23

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[, 237 F.3d at 840]. 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 available to her in a practical sense, 

so that her rejecting it was her own fault.

301 F.3d at 870. Here, Dusan failed to meet the threshold burden of proving 

the existence of a reasonable accommodation. Thus, the burden of production 

never shifted to Belterra, and it was not obligated to introduce evidence 

regarding the availability of that accommodation.

[14] Belterra further contends that the Commission erred in finding that Dusan 

could perform the essential functions of the barista position without an 

accommodation. We agree. The Commission found that Dusan had 

permanent restrictions of limited bending and a lifting limit of ten pounds, and 

it further found that the barista position involved stocking shelves by lifting

thirty-pound containers of chips and twenty- to thirty-pound containers of 

coffee. Clearly, Dusan could not perform this essential function without an 
Court of Appeals of Indiana | Opinion 19A-EX-2650| October 21, 2020 Page 20 of 23

accommodation.7

 Also, contrary to the Commission’s findings, Dr. Nunnelley 

unequivocally stated that Dusan could not perform the essential function of 

busing tables. Ex. Vol. 3 at 12 (Dusan’s Ex. 25) (Nunnelley depo. at 33).

8

[15] Dusan failed to propose any accommodations for the barista position,9 and 

those improperly proposed by the Commission are unreasonable as a matter of 

law. As for the Commission’s suggestion that Dusan could have performed the 

essential functions of the barista position with “the help of co-workers,” 

Appealed Order at 22, we note that an employee’s request to have another 

person perform an essential function of her job is generally deemed 

unreasonable. See Peters v. City of Mauston, 311 F.3d 835, 845-46 (7th Cir. 2002)

(finding construction worker’s request “that someone else do the heaviest lifting 

for him if he could not handle it” was unreasonable); see also Dvorak v. Mostardi 

Platt Assocs., Inc., 289 F.3d 479, 484 (7th Cir. 2002) (“Under the ADA, an 

7 Questions of accommodations aside, it is doubtful whether Dusan was otherwise qualified for the barista 

position. The Commission’s finding that Dusan’s limited English-speaking skills were sufficient for that 

position in April 2013 is highly dubious at best, given that she still primarily speaks Cantonese and that the 

Commission also found she did not have sufficient English skills to effectively handle guest complaints as a 

beverage server. See Ex. Vol. 2 at 167, 168 (Dusan’s Ex. 22) (job description listing as essential function of 

barista position the “[a]bility to communicate effectively with customers, as well as all levels of employees[,]” 

and indicating that “[t]alking” is required for over seven hours per day).

8 Dr. Nunnelley’s comment regarding a “trial period” was in response to a question about pouring coffee into 

a cup. Ex. Vol. 3 at 12 (Nunnelley depo. at 32-33). We note that in referring to exhibits, both parties fail to 

cite to the specific exhibit volume and page number as required by Indiana Appellate Rule 22(C).

9 Dusan asserts that “[t]he reasonable accommodation request was for [her] to maintain employment, which 

... is an acceptable form of an accommodation.” Appellee’s Br. at 32. Belterra correctly observes that 

“‘continued employment’ is the result of a reasonable accommodation (where one is available), not the 

accommodation itself[,]” and that “Dusan seems to conflate an employee’s duty to request an accommodation 

and trigger the interactive process with her burden at trial to prove she was ‘qualified,’ i.e., that she could 

perform all the essential functions of the desired job with or without reasonable accommodations.” Reply Br. 

at 15.
Court of Appeals of Indiana | Opinion 19A-EX-2650| October 21, 2020 Page 21 of 23

employer is not required to modify, reduce, or reallocate the essential functions 

of a job to accommodate an employee.”). Dusan presented no evidence, and 

the Commission made no finding, that it was “the normal course” for baristas 

“to substitute and reassign tasks among themselves according to individual 

abilities, preferences, and limitations[,]” which might have supported a 

determination that such an accommodation was reasonable. Miller v. Ill. Dep’t of 

Transp., 643 F.3d 190, 200 (7th Cir. 2011). The Commission’s suggested “trial 

period” for busing tables—which is based on a misreading of Dr. Nunnelley’s 

deposition testimony—is also unreasonable. Appealed Order at 9; see Peters, 

311 F.3d at 846 (“Allowing the employee to return to work to see if he can 

complete the job is the wrong test as to whether an accommodation is 

reasonable. The employer is not obligated to allow the employee to try the job 

out in order to determine whether some yet-to-be requested accommodation 

may be needed.”) (citation omitted).

[16] Moreover, as Belterra notes, Dusan never proposed an extension of her thirtyday job-search period as an accommodation. This, too, was improperly 

proposed by the Commission, and this, too, would have been unreasonable

because Dusan presented no evidence of an imminent job opening for which 
Court of Appeals of Indiana | Opinion 19A-EX-2650| October 21, 2020 Page 22 of 23

she would have been qualified.

10 See Ind. Code § 22-9-5-17 (listing 

“reassignment to a vacant position” as a reasonable accommodation) (emphasis 

added); 29 C.F.R. pt. 1630 App’x (“Employers should reassign the individual to 

an equivalent position ... if the individual is qualified, and if the position is 

vacant within a reasonable amount of time. A ‘reasonable amount of time’ should 

be determined in light of the totality of the circumstances. As an example, 

suppose there is no vacant position available at the time that an individual with 

a disability requests reassignment as a reasonable accommodation. The 

employer, however, knows that an equivalent position for which the individual is 

qualified, will become vacant next week. Under these circumstances, the employer 

should reassign the individual to the position when it becomes available.”) 

(emphases added); McBride, 583 F.3d at 97-98 (stating that an employee “must 

demonstrate the existence, at or around the time when accommodation was 

sought, of an existing vacant position to which she could have been 

reassigned.”) (emphasis added); Monette v. Elec. Data Systs. Corp., 90 F.3d 1173, 

1187 (6th Cir. 1996) (“While it is true that employers may be required, as a 

reasonable accommodation, to transfer a disabled employee to a vacant 

position for which he or she is qualified, employers are under no duty to keep 

employees on unpaid leave indefinitely until such position opens up.”), 

10 The Commission also noted in passing that “a part-time laundry room position was available” and that 

Belterra “did not discuss offering to accommodate [Dusan] by allowing her to continue her same transitional 

tasks in the laundry room as a restructured job position on the laundry room team.” Appealed Order at 20 

n.25. Belterra observes that Dusan “did not identify the laundry room position as a possible position in her 

pre-hearing discovery responses” and did not “assert (or offer any evidence) that she was qualified for this 

position during the hearing.” Appellant’s Br. at 37.
Court of Appeals of Indiana | Opinion 19A-EX-2650| October 21, 2020 Page 23 of 23

abrogated on other grounds by Lewis v. Humboldt Acquisition Corp., 681 F.3d 312 

(6th Cir. 2012).

[17] In sum, we conclude that the Commission erred in concluding that Dusan 

carried her burden to prove that Belterra discriminated against her by failing to 

provide her with a reasonable accommodation for her disability. Therefore, we 

reverse the Commission’s ruling in favor of Dusan, and we need not address 

Dusan’s cross-appeal regarding damages.

[18] Reversed.

Robb, J., and Brown, J., concur.