City has understandably established that being able to
handle a firearm adequately is an essential function of being a
sworn police officer (regardless of the type of duty the officer
is performing) and has embodied that requirement in its written
policies (C. St. qig; C. Ex. G-1 (General Order 98-2(II) (A)).
That decision is well within City’s prerogative, and so long as
the requirement is not applied in a discriminatory manner this
Court will not second-guess City’s choice (C. St. (107; DePaoli
v. Abbott Labs., 140 F.3d 668, 674 (7th Cir. 1998)).

Not only did Jackson fail to demonstrate her ability to
handle a firearm as part of her reinstatement evaluation in 2000
(C. St. 49135), but one of her doctors expressly testified that it

would be hazardous to her health and the health of those around

her if Jackson ever had to carry a gun (J. St. 425; C. St.

q95).'° City is entitled to credit that factual conclusion from

10° That conclusion was stated unequivocally. When asked
what he had meant by saying in his August 11, 2000 note (sent to
City by Jackson on August 16) that “due to her ongoing
pain/fatigue she cannot resume her duties as a police officer,”
Dr. Dachman responded (Dachman Dep. 11 in C. Ex. N):

A. I don't expect that somebody with fibromyalgia
and back pain would be safe in the streets either to
herself or to a civilian in reference to chasing a
combatant or trying to pull the trigger.

I think that she would be both a danger to herself
and to me as a civilian because of her diffuse pain,
her instability of gait, her fatigue, the effects of
fatigue and cognition. I believe that it would be, if
you will, police malpractice to allow her to practice
as a policeman with this particular problem.

13



when, shortly after she was hired by City, she injured her right
knee in a training exercise (C. St. 93, 24). After her injury
Jackson continued to work for City as a police officer at various
levels of duty (C. St. 9428-29, 32). Then in 1993 she applied
for and received total duty disability benefits from the
Retirement Board of the Policemen’s Annuity and Benefit Fund
(“Board”) (Compl. 410; C. St. 435).

When the Board discontinued those benefits in 1995, Jackson
eventually returned to active duty in a limited duty capacity (C.
St. 9940, 48). Later Jackson decided that her knee problems
prevented her from performing even her assigned limited police
duties, and in 1998 she again applied to the Board for disability
benefits (C. St. 951-53). That application was denied, and
after multiple appeals the issue was finally put to rest when her
Petition for Administrative Review to the Illinois courts was
dismissed for want of prosecution (C. St. 94956, 69, 70, 72, 77).

While Jackson’s benefits claim wound its way through the
appeals process, City allowed her to extend her leave of absence
from the police department (C. St. §§78, 81). Nonetheless
Jackson took it upon herself to begin the process of seeking
reinstatement in August 2000 (J. St. 410; Cc. St. §82). That
effort stalled almost immediately because Jackson did not have
proper documentation from her physicians and because she refused

to take a stress test as part of the required physical


participate in an interactive dialogue about using the standard
reassignment process offered to her by City more than once.
Conclusion

Because Jackson has not raised a genuine issue of material
fact as to whether she is a “qualified individual with a
disability,” she has not established a central element of her
claim. Hence summary judgment in City's favor is appropriate
without any need for further exploration of the substantive

merits of her individual claims (Bombard v. Ft. Wayne Newspapers

Inc., 92 F.3d 560, 562 (7th Cir. 1996)). City is entitled to a

judgment as a matter of law under Rule 56, and this action is

—e DG sete.

dismissed.

Milton I. Shadur
Senior United States District Judge

Date: November 25, 2003

* It is worth noting, however, that a brief glance at the

substantive merits of Jackson's complaint reveals (1) that by not
responding to City’s arguments Jackson has effectively abandoned
many of her claims (for example, her objection to the “indepen-
dent stable ambulation requirement” (Compl. 4950-51) (see Palmer
v. Marion County, 327 F.3d 588, 597-98 (7th Cir. 2003)) and (2)
that her remaining claims are not at all supported by the facts
(for example, her insistence that City requires officers to pay
for their own medical testing (Compl. 448; C. St. 4130)).

17


physical impairment that could give rise to her status as
disabled, the record plainly does not support such a potential.’
Instead it appears that if Jackson has any possibility of being
found disabled, it would have to be because of her fibromyalgia.
Although that ailment was once questioned as a valid medical
diagnosis, this Court has viewed it in the past (Aidinovski v.
Apfel, 27 F. Supp. 2d 1097, 1099, 1103 (N.D. Ill. 1998), quoting
from Sarchet v. Chater, 78 F.3d 305, 306 (7th Cir. 1996)) and
still views it as a physical impairment.

Because Jackson's fibromyalgia provides a “yes” answer to
Bragdon's step one question (the easiest one), the analysis
proceeds to the remaining two requirements--whether Jackson is
substantially limited in a major life activity. In that respect
Jackson has claimed to be substantially limited in the major life

activity of walking.* Walking is of course a major life activity

7 By August 2000 Jackson's orthopedist placed only slight
restrictions on her activities because of her knee condition (Cc.
St. 9§100, 104). Indeed, he found that Jackson’s knee had
sufficiently improved to a point where she no longer needed any
walking aids (Cc. St. §4§100, 105). But the doctor who diagnosed
Jackson with fibromyalgia believed that her pain (even if
somewhat improved or intermittent) would continue indefinitely to
affect her physically (Cc. St. 9958-59, 62; C. Ex. N at 6-12).

® ¢c. R. Mem. 2 argues that Jackson's responsive memorandum
“no longer contends that she was substantially limited in
walking.” While Jackson could certainly have been more direct in
her delineation of walking as a major life activity, her Mem. 4
does cite to a paragraph in her LR 56.1 statement asserting that
“fo]ther than walking, major life activities that Jackson is
significantly restricted from performing include...” (J. St. 43).
With the benefit of every reasonable inference, Jackson may be

9


as “an individual who, with or without reasonable accommodation,
can perform the essential functions of the employment position
that such individual holds or desires” (Section 12111(8)).

But before this opinion turns to that subject, which proves
to be dispositive of Jackson's claims, another potential (and
potentially dispositive) problem with her lawsuit is worth
identifying. To state a prima facie case, an ADA plaintiff must
demonstrate both that she is covered by ADA and that she has
suffered an adverse employment action because of her disability
(Moore, 221 F.3d at 950). Because it will become apparent that
Jackson has not met her initial burden of showing that she is
within ADA's protection, there will be no need to resolve the
question whether she has suffered a sufficient adverse employment
action to complete her prima facie case.

But it must be said that even under a broad view of “adverse
employment action” as including employer inaction under
appropriate circumstances, Jackson does not at all make clear
what asserted adverse employment action she has suffered (Ajayi

v. Aramark Bus Servs., Inc., 336 F.3d 520, 531 (7th Cir. 2003);

Hilt-Dyson v. City of Chicago, 282 F.3d 456, 465-66 (7th Cir.

2002))). If it is claimed to be City’s failure to communicate

J. Mem. 6-7). Because this Court agrees that the Title I
definitions are in fact more appropriate for the analysis of
Jackson’s claims, this opinion follows the parties’ lead and uses
those Title I definitions where appropriate.

6


examination (C. St. 9486, 92, 95, 112, 114-15, 117, 125). City
therefore withheld medical clearance for Jackson’s reinstatement
(Cc. St. 4117). Over the next two years City corresponded with
Jackson (primarily through her attorney) to clarify what
information she had to provide or what steps she had to take to
complete the reinstatement process, and also to explain what
other options were available to her (such as reassignment to
another City job) (C. St. §4124-34).

City finally informed Jackson in April 2002 that because her
benefits claim was no longer pending she must take some action or
City would accept her resignation (C. St. 4136). When Jackson
did not respond, City formally accepted her deemed resignation in
May 2002 (C. St. §§139, 141). By that time Jackson had already
filed this action.

Application of the Rule 56 Standards

ADA protects only “qualified individuals with disabilities”
from discrimination in the workplace. As a threshold matter
Jackson bears the burden of showing she is within the scope of
the statute by demonstrating that she is a “qualified individual

with a disability” (Moore v. J.B. Hunt Transp., Inc., 221 F.3d

944, 950 (7th Cir. 2000)) as that term is statutorily defined.

ADA's Title I5 defines “qualified individual with a disability”

S$ Although Jackson has brought her employment claim under
Title II rather than the more employment-specific Title I, both
parties refer to cases that use Title I definitions (C. Mem. 11;

5


ADA's very threshold dooms all of her claims. Obviously the
first step in analyzing whether Jackson is within the scope of
ADA (and the Rehabilitation Act as well) is to determine whether
she has a “disability” as that term is statutorily defined in
Section 12102 (2) (A) :®

a physical or mental impairment that substantially
limits one or more major life activities....

Bragdon v. Abbott, 524 U.S. 624, 631 (1998) outlines the
three-step inquiry for determining whether an employee has a
“disability” under ADA. First, a court asks whether the employee
has a physical or mental impairment. Next, a court assesses
whether the impairment affects a major life activity of the
employee. And finally the court considers whether the major life
activity identified by the plaintiff is substantially limited
because of the impairment.

Although both parties focus on Jackson’s knee injury as the

® It is true that Section 12102(2)(B) and (C) also extend
ADA coverage to an individual who “has a record of such
impairment” or is “regarded as having such an impairment.” J.
Mem. 4 takes a cursory stab at invoking Section 12102(2)(C). But
her pleadings mention only Section 12102(2) (A) (Compl. 4939, 45,
54, 58-59), and she cannot effectuate an eleventh hour amendment
to her case by raising an issue in her responsive memorandum
(Shanahan v. City of Chicago, 82 F.3d 776, 781 (7th Cir. 1996);
Cebertowicz v. Motorola, Inc., 178 F. Supp.2d 949, 953 (N.D. Tll.
2001)). Moreover, even if Jackson had not forfeited her ability
to raise that argument, the legally and factually unsubstantiated
consideration of the issue in her memorandum does not flesh out
the “regarded as disabled” prong of the ADA disability definition
nearly enough to raise a genuine issue of material fact. Hence
this opinion considers only whether Jackson is “disabled” under
Section 12101(2) (A).



pee Moggi.

e a
Minute Order Form (06/97)

7
,

TY, United States District Court, Northern District of Illinois
Name of Assigned Judge i Sitting Judge if Other
or Macitrate Sea Milton I, Shadur ‘han acsitned Judge
CASE NUMBER 02 C 3057 DATE 11/25/2003
CASE Vendetta Jackson vs. City of Chicago
TITLE

[in the following box (a) indicate the party filing the motion, e.g,, plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented.]

MOTION:

DOCKET ENTRY: vo

(1) oO Filed motion of { use listing in “Motion” box above,] ..

(2) o Brief in support of motion due

(3) Oo Answer brief to motion due____—_- Reply toanswerbriefdue_

(4) Oo Ruling/Hearing on setfor____at

(5) oO Status hearing[held/continued to] [set for/re-set.for] on setfor at.

(6) Oo Pretrial conference[held/continued to] [set forlre-set for] on_____setfor__— ss at_—

(7) Oo Trial[set for/re-set for]on at. —

(8) a [Bench/Jury trial] [Hearing] held/continuedto sat.

(9) Oo This case is dismissed [with/without] prejudice and withot costs[by/agreement/pursuant to]
DOFRCP4(m) OLocal Rule 41.1 CERCP4I1(aX(1) COPRCP41(a)(2).

(10) Ml [Other docket entry) Enter Memorandum Opinion-and Order. Because Jackson has not raised a genuine issue of

material fact as to whether she is a “qualified individual with a disability,” she has not established a central element of her
claim. Hence summary judgment in City’s favor is appropriate, without any need for further exploration of the substantive
merits of her individual claims (Bombard v. Ft, Wayne Newspapers, Inc., 02 F3d 560, 562 (7" Cir. 1996)). City is entitled
to a judgment as a matter of law under Rule 56, and this action-is dismissed.

corer

dl) ff [For further detail see order attached to the original minute order.]

No notices required, advised in open court. ‘Document
Number

No notices required.

number of notices

YW | Notices mailed by judge's staff. ee 2003

Notified counsel by telephone.

date ggtuen
Docketing to mail notices.
o_| Mail A0 450 form. 4 sre 9 docketingdepayfiitials
Copy to judge/magistrate judge.
was/2003

‘courtroom date mailed notice

SN deputy’s

ait SN
initials

Date/time rec
central Clerk's Office nag dopa intals



ability to walk. Indeed, C. Mem. 11 n.3 points out accurately
that most of those cases antedate the Supreme Court's
acknowledged raising of the barriers established by ADA in Toyota

Motor Mfg, v. Williams, 534 U.S. 184 (2002)--in that respect, see

Dvorak, 289 F.3d at 484.

For her part, Jackson has presented evidence indicating that
her walking is hindered at least to some degree. For example,
she testified that (despite what her orthopedic surgeon
indicated, see n.7) she uses a cane when walking outside because
she often falls when her knee gets tired and gives out (J. Resp.
4110). Jackson's ex-husband also testified that her legs would
sometimes buckle when she was walking or standing up and that she
would either fall or grab hold of him to avoid falling (J. St.
qs). And perhaps most importantly, Jackson’s pain doctor
commented that although it may wax and wane at times, her
significant back pain was likely to affect Jackson for the rest
of her life (C. Ex. N at 6, 8, 12). Because the
“substantially limits” facet of the Bragdon test calls for a
factually intensive and individualized inquiry, this Court is
loath to match up the facts from the cases provided by City with
the facts presented by Jackson as the possible predicate for
concluding that no reasonable jury could find that she was not
substantially limited in her ability to walk (Homeyer v. Stanley

Tulchin Assocs., Inc., 91 F.3d 959, 962 (7th Cir. 1996); Kelly,

11


as such (Dvorak _v. Mostardi Platt Assocs., Inc., 289 F.3d 479,

483 (7th Cir. 2002); 29 C.F.R. §1630.2(i))--but what of the
critical requirement that there must be a substantial limitation
of that activity?

Generally an individual is substantially limited in
performing a major life activity if, in comparison with an
“average person in the general population,” she is “limited in
the manner or extent to which she can perform” that activity
(Dvorak, 289 F.3d at 483; 29 C.F.R. §1630.2(j) (ii)). And in
considering the major life activity of walking, courts evaluate
such factors as how long plaintiff can walk (both in terms of
time and distance), how fast plaintiff can walk, whether
plaintiff needs devices or other assistance to walk and whether

plaintiff experiences pain or discomfort when walking (see, e.g.,

Moore, 221 F.3d at 951; Kelly v. Drexel Univ., 94 F.3d 102, 105-
07 (3d Cir. 1996)).

Cc. Mem. 9-11 cites a flood of cases in which plaintiffs were
found not substantially limited in their ability to walk. City
argues that the limitations of those comparative plaintiffs’
abilities to walk were at least as severe as Jackson’s
limitations (if not more severe), so that the cases validate its

position that Jackson was not substantially limited in her

viewed as qualifying (at least arguendo) for an examination of
whether she is substantially limited in the major life activity
of walking (cf. Moore, 221 F.3d at 951).

10


its decision to her (J. Mem. 6), then (as discussed later) that
contention is simply not supported by the record. And if it is
claimed to be a deliberate effort on City’s part to “deny Jackson
the duty disability benefit she would receive following a denial
of reinstatement” (J. Mem. 8), that contention is completely
unsupported by either the record or case law.

Moreover, because the success of Jackson’s suit is dependent

on her proving she is a “qualified individual with a disability”

as defined in ADA, it is unclear what Jackson‘s appeal to Section

1983 cases such as Buttitta v. City of Chicago, 9 F.3d 1198 (7th
Cir. 1993) has to do with the price of tea in China. Buttitta,
id. at 1204 holds that the provision of the Illinois Pension Code
considered there guarantees disabled police officers an
Opportunity to demonstrate they are fit for active duty. Not
only does that proposition have nothing whatever to do with ADA
or the Rehabilitation Act, but it is also factually incongruous
with Jackson’s situation. Here City has done precisely what
Buttitta (if it were applicable) would require--as also discussed
later, it has given Jackson the opportunity to demonstrate
whether or not she is fit for active duty by offering her the
opportunity to apply for reassignment (Cc. St. 44129, 132).

It would seem most likely, then, that Jackson has not
provided that essential “adverse employment action” ingredient of

a prima facie case. But even were that not so, her failure at


(1986)). In making that determination a court considers the
evidentiary record in the light most favorable to the non-movant
and draws all reasonable inferences in its favor (Lesch v. Crown
Cork & Seal _Co., 282 F.3d 467, 471 (7th Cir. 2002)). But the
nonmovant “must produce more than a scintilla of evidence to
support his position” that a genuine issue of material fact
exists (Pugh v. City of Attica, 259 F.3d 619, 625 (7th Cir.
2001)) and “must set forth specific facts that demonstrate a
genuine issue of triable fact” (id.). Ultimately summary
judgment is warranted only if a reasonable jury could not return
a verdict for the nonmovant (Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986)).

What follows is a synopsis of the facts viewed in the light
most favorable to nonmovant Jackson. Here, however, that
perspective has been materially limited by the equally well
established principle that facts improperly controverted (or not
controverted at all) by a party are deemed admitted (McGuire v.
United Parcel Serv., 152 F.3d 673, 675 (7th Cir. 1998)).
Notably, Jackson has admitted a number of facts by having
conceded, in response to City's motion, that her responses to
those facts articulated in the City's statement should be
stricken, but by then failing to provide any alternate responses.

Facts

Jackson's checkered career as a police officer began in 1986


Jackson’s physician in making its own decision that, according to
the standards it has legitimately established for its sworn
police officers, Jackson is not a qualified individual with a
disability because she cannot perform the essential function of

handling a firearm safely (Weigel _v. Target Stores, 122 F.3d 461

467 (7th Cir. 1997), quoting Weiler v. Household Fin. Corp., 101

F.3d 519, 525 (7th Cir. 1996)).**

But ADA also allows for the possibility that Jackson is a
“qualified individual with a disability” with the reasonable
accommodation of reassignment to another position within City

where handling a firearm is not an essential function. Title I's

And again (at Dachman Dep. 24):

A. My general idea of a police officer is they
must carry a gun, and it's irrelevant to my mind what
she is assigned to do on a daily basis in that if she
has to carry a gun, to me that would be hazardous to
her health and those around her.

Q. Okay. So when you said that she couldn't
perform her police duties, you meant that she could not
carry her weapon?

A. Correct. And I also believe that the police
are mandated to wear specific belts, gun belts with a
gun in place, which I believe would be too heavy for
her to wear on a regular basis.

Mm City also contends that Jackson herself admitted that

she was unable to return to work when she presented herself for
reinstatement (C. St. §§82, 89-90). Jackson, on the other hand,
maintains that she did not say that she was not ready to return
to work (J. St. 999, 13; C. St. 9126; J. Resp. §84). Because that
conflict (unlike the physician's professional evaluation referred
to in the text) presents a credibility issue, its resolution is
not appropriate at the summary judgment stage.

14



counsel, it is hornbook law that an attorney is his client's
agent such that notification to counsel equates to notice to the

client (Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 92-93

(1990); Jones v. Madison Serv. Corp., 744 F.2d 1309, 1312 (7th

Cir. 1984) (per curiam)). Moreover, despite some dubious
contentions to the contrary by Jackson's attorney (J. Ex. P 94i1-
13), it is readily apparent that City put Jackson's attorney (and
hence Jackson) on ample notice of the possibility of reassignment
several times (C. St. 49/125, 128-29, 134, 144; C. Ex. R1-R6).

There is no room for doubt that Jackson knew of City’s
willingness to accommodate her by engaging in its standard
reassignment procedures, so that Jackson herself made the choice
not to avail herself of that opportunity. (C. St. 499133, 139).
Because Jackson (and not City) was thus responsibie for the
breakdown in any interactive dialogue between the parties, she
cannot now claim that she would have been a “qualified individual
with a disability” had City properly accommodated her via

reassignment (Beck, 75 F.3d at 1135).

In the end, even if a reasonable jury were able to conclude
that Jackson is disabled, no such jury could further conclude
that Jackson has demonstrated she is a “qualified individual with
a disability” as defined in ADA. She cannot perform the
essential function of handling a firearm as required of all sworn

police officers. And to boot she has utterly failed to

16


requirement on all officers (Compl. §§50-51), and that City has
violated the Rehabilitation Act by refusing to offer her the
reasonable accommodation of a final reinstatement order (Compl.
q(63-64).

City has moved for summary judgment as to all of Jackson's
claims pursuant to Fed. R. Civ. P. (“Rule”) 56, and both parties
have complied with this District Court’s LR 56.1.> Because
Jackson has not raised a genuine issue of material fact about
whether she is a “qualified individual with a disability” as
defined in ADA,* City’s motion is granted in full and the action
is dismissed.

Summary Judgment Standards

To succeed on a summary judgment motion, the moving party
bears the burden of establishing that there is no genuine issue

of material fact (Celotex Corp. v. Catrett, (477 U.S. 317, 322-23

> LR 56.1 requires parties to submit evidentiary statements

and responses to such statements to highlight which facts are
disputed and which are agreed upon. This opinion cites to City’s

LR 56.1 statement as “C. St. F--,” to Jackson’s LR 56.1 statement
as “J. St. --" and to their respective responses as “C. Resp.
{--" and “Jd. Resp. §--.” Where either party's LR 56.1 statement

is undisputed, this opinion cites only the original statement.
“Cc.” and “J.” designations are also used in referring to all
other submissions by the parties.

* Both parties take advantage of the well-established
doctrine that the applicable standards under ADA and under the
Rehabilitation Act are interchangeable (Washington v. Ind. High
Sch. Athletic Ass'n, Inc., 181 F.3d 840, 845 n.6 (7th Cir. 1999
and cases cited there). Thus this opinion's references to ADA
requirements should be understood as applicable to both statutes.

2


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

VENDETTA JACKSON,

)
Plaintiff, DOCK:
v. No. 02 C 3057 NOV 2 6 2003
CITY OF CHICAGO,
Defendant . }

MEMORANDUM OPINION AND ORDER

Vendetta Jackson (“Jackson”) has sued the City of Chicago
(“City”), for which she previously worked as a police officer,
under Title II* of the Americans with Disabilities Act (“ADA,” 42
U.S.C. §12132?) and the Rehabilitation Act of 1973 (“Rehabili-
tation Act,” Section 794(a)). Jackson’s Complaint asserts that
City has violated ADA by (1) refusing to complete the processing
of Jackson's request for reinstatement at her job (Compl. 441),
(2) having a policy that forces officers to pay for the medical
examinations they must complete to be eligible for reinstatement
(Compl. 448), (3) failing to act on her request for reinstatement

(Compl. 449) and (4) imposing an “independent stable ambulation”

+ Shortly after Jackson brought this action, this Court

considered whether Title II (rather than Title I, which expressly
deals with employment discrimination) was a proper vehicle for
bringing her employment-based suit against a public entity such
as City, which is covered by Title II. It concluded that because
the Seventh Circuit had not explicitly rejected the possibility
of such a Title II action, Jackson could proceed on that basis
(215 F.Supp. 975 (N.D. Ill. 2002)). That remains true today.

? All further references to Title 42 provisions will simply
take the form “Section --.”


94 F.3d at 108). That would seem to be particularly
inappropriate where the impairment that potentially causes the
substantial limitation is not of an easily quantifiable
musculoskeletal or neurological nature (as is true of
fibromyalgia).

So it will be assumed at this point that a reasonable jury
could conclude that Jackson has a disability based on a
substantial limitation on her ability to walk caused by her
fibromyalgia.® But that is not at all the end of the inquiry,
for it must also be established that Jackson is a “qualified
individual with a disability” for her to be brought within the
scope of coverage afforded by ADA. As already noted, a
‘qualified individual with a disability” is someone who can
perform the essential functions of the job that she seeks with
(or without) reasonable accommodation. That definition
explicitly gives “consideration” to an employer’s determination
of which job functions are essential, especially where an
employer has included its expectations in a written job

description (Section 12111(8)).

° It must be observed, however, that any such assumption
that Jackson has raised a genuine issue of material fact as to
the “substantially limited” aspect of the Braqdon test must be
accompanied by some qualms: She has not directly addressed what
her specific walking limitations are in terms of distance, time
or pace; she has offered absolutely no caselaw to support her
position; and she has distinguished just a couple of the numerous
cases presented by City on that point, and unpersuasively at that
(J. Mem. 5).

12


definition of “reasonable accommodation” includes “reassignment
to a vacant position” in certain (though somewhat narrowly
circumscribed) situations (Section 121111(9) (B)); Gile v. United

Airlines, Inc., 95 F.3d 492, 497-99 (7th Cir. 1996)). In that

respect City would be obligated to have given Jackson the
opportunity to take advantage of the typical reassignment

procedure that it used regularly (School Bd. of Nassau County v.

Arline, 480 U.S. 273, 289 n.19 (1987); Wernick v. Fed. Reserve

Bank, 91 F.3a 379, 384-85 (2d Cir. 1996); Weiler, 101 F.3d at
526). City has clearly fulfilled that obligation by repeatedly
notifying Jackson that she could apply for reassignment pursuant
to City’s standard policy (C. St. 4128-29, 132, 136).

Although far from explicit, Jackson’s counterargument that
City has violated ADA and the Rehabilitation Act by failing to
notify her of the possibility of reassignment according to its
standard policy seems most akin to a contention that City has not
engaged in the required interactive process of accommodation

(Beck v. Univ. of Wis. Bd. of Regents, 75 F.3d 1130, 1135 (7th

Cir. 1996)). Thus Jackson asserts that by notifying her attorney
of the possibility of reassignment (rather than notifying her
directly) City is responsible for the breakdown in that
interactive process (J. Resp. §129). That notion is simply
absurd. Even apart from the possible ethical problems implicit

in communicating directly with a party who is represented by

15