In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 07-1275

VALERIE T. FILAR,

Plaintiff-Appellant,

v.

BOARD OF EDUCATION OF THE CITY OF CHICAGO,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 04 C 4679—Charles R. Norgle, Judge.

____________

ARGUED JANUARY 25, 2008—DECIDED MAY 22, 2008

____________

Before FLAUM, ROVNER, and SYKES, Circuit Judges.

FLAUM, Circuit Judge. Valerie T. Filar formerly taught

as an untenured, full-time teacher in the Polish bilingual

education department at the Edwin G. Foreman High

School in Chicago. In 1999, the Board of Education of

the City of Chicago, then known as the Chicago School

Reform Board, approved a decision by Foreman’s

principal to change Filar’s status from a full-time teacher

at Foreman to a substitute teacher who would fill vacancies in other Chicago public schools as they arose. Filar,

who was 69 at the time, objected to the decision for at
2 No. 07-1275

least two reasons. In the first place, she suspected that

Foreman’s principal had deliberately retained younger

teachers in the bilingual program at her expense. In

addition, Filar’s osteoarthritis and dependence on

public transportation made getting to the city’s various

schools difficult, and the Board denied her request that

she only be assigned to schools that were easily accessed

from bus stops. This lawsuit followed, alleging age discrimination and that the Board failed to reasonably accommodate Filar’s disability. The district court granted the

Board’s motions for summary judgment on both claims,

and this appeal followed. For the reasons set out below,

we reverse the district court’s grant of summary judgment with respect to the age discrimination claim but

affirm with respect to Filar’s disability claim.

I. Background

Filar’s claims stem in large measure from allegations that

the principal of Foreman High School made questionable

personnel decisions that resulted in her ouster from

Foreman. Understanding these allegations requires some

background on Illinois’s bilingual education program

and the (elaborate) mechanics of a principal’s relationship with the teachers in her school. Illinois law requires

the State’s school districts to establish programs of transitional bilingual education for students of limited Englishspeaking ability. ILCS §§ 5/14C-1, C-3. To staff these

programs, school districts offer a transitional bilingual

teaching certificate to qualified individuals proficient in

both English and a foreign language, known as a Type 29

certificate. ILCS § 5/14C-8. The Type 29 certificate is a

bridge certification; teachers can teach students with

limited English skills while working for a standard teach-
No. 07-1275 3

ing certificate, which for secondary schools like Foreman

is called a Type 09 certificate. Id.; see generally ILL. ADMIN.

CODE tit. 23, § 25.90 (2008) (containing current qualifications). Once a teacher has attained the standard teaching

certificate, she has to obtain both a bilingual “approval,”

which attests to her ability to provide a bilingual education,

and “endorsements,” which are descriptors like “Mathematics” or “Reading” that indicate the subject matters

she is competent to teach. See, e.g., ILL. ADMIN. CODE tit. 23,

§ 25. app. E (listing representative endorsements as of

July 1, 2004).

Even with the proper certifications, a would-be teacher

in Illinois must still get hired, and not all teaching positions are the same. Public schools in Chicago employ

several different categories of teacher, each with its own

moniker and level of job stability. The most secure are

tenured teachers, whom a principal can only remove for

“cause.” 105 ILCS 5/34-84. Below tenured teachers are

tenure-track or “appointed” teachers who work full time

with a particular class at a specific school, and, as their

name suggests, can eventually obtain substantial job

security. There are also at least two kinds of non-tenuretrack teachers: “cadre” substitute teachers move from

school to school to cover temporary vacancies on a daily

basis; and full-time basis or “assigned” substitutes work

at one school full time, just like tenure-track teachers

only with less seniority and without the potential job

security.

Principals have wide discretion in moving a school’s

teachers from a full-time basis position onto the tenure

track. But how many full-time teachers a school can

employ in a given year derives in large measure from the

principal’s available budget for the school year. Among
4 No. 07-1275

other things, the annual budget from the Chicago Board of

Education and the Budget Office lists how many positions

the Board will fund in a given school year for each

school program. In addition to Board-funded position, the

principal may also have a certain number of teaching

positions at his school funded by the State of Illinois. When

the school does not have enough funded positions for all

its teachers, the principal may have to “displace” unfunded

teachers; that is, recategorize either tenure-track or fulltime substitute teachers as “cadre” substitutes who must

then fill vacancies in other city schools as they arise.

When that happens, the principal displaces teachers in

reverse order of seniority. A less senior full-time basis

substitute in a given subject or program will go before a

more senior one; and a tenure-track teacher will not go

until the principal has displaced all of the full-time basis

substitutes. Although the principal possesses substantial

authority to make personnel decisions, it’s not absolute.

The principal must first send a personnel request to the

Board’s Human Resources Department. There, someone

determines whether the decision complies with the Chicago Teachers Union’s collective bargaining agreement

and whether the teacher has the requisite certifications.

Then, based on these criteria, Human Resources either

approves or denies the decision.

This case arises from the events immediately before and

after Filar’s displacement in 1999. Filar was born on

January 11, 1930 in Poland. In 1991, she received her Type

29 certification and, the next year, Foreman’s principal,

Dr. John Garvey, hired her to teach Computers in the

school’s Polish bilingual program as a full-time basis

substitute. Not long after he hired Filar in 1992, Dr. Garvey

displaced her, although after Filar filed a grievance she
No. 07-1275 5

was soon reinstated. While Filar was fighting her displacement in 1992 and 1993, Dr. Garvey hired two more

teachers for the school’s Polish bilingual program—Piotr

Monaco (born in 1957) and Kornelia Rydberg (born in

1960)—both of whom had Type 29 certifications. In September 1997, Filar received her Type 09 standard teaching

certification with endorsements in Accounting and Computers, and, a month later, she obtained her bilingual

approval.

The parties dispute exactly when and how Dr. Garvey

made the determination, but at some point in 1999 it

became clear to him that the demand had fallen somewhat for bilingual Polish education due to a decrease in

enrollment. In the school year beginning 1998, Foreman

had five Board-funded positions for the Polish bilingual

program; for the 1999 school year, it would lose one. What

followed was a flurry of personnel decisions that would

change the program and the employment status of the

teachers. Two such decisions affected the other full-time

substitute teachers then in the program. On July 23, 1999,

Dr. Garvey sent a request to the Board that Monaco be

appointed to a tenure-track position. Monaco had received his Type 09 certification in March 1999, but he had

yet to receive his bilingual approval. And on September 3,

1999, two days after the school year began, Dr. Garvey

sent a similar request that Rydberg be appointed to a

tenure-track position. Rydberg had obtained her Type 09

certification on August 18, 1999, but also had yet to receive her bilingual approval.

On September 12, 1999, Dr. Garvey then slotted a new

teacher into the Polish bilingual program when he requested that the Board move a tenure-track teacher,

Helena Danielska (born in 1939), into the program.
6 No. 07-1275

Danielska had her Type 09 certification with an endorsement in mathematics and a Type 29 certificate with a

Polish-bilingual endorsement. In moving Danielska into

the program, Dr. Garvey moved Filar from a statefunded position to a Board-funded position and then put

Danielska into Filar’s old state-funded position. The Board

approved the change on September 14. Finally, on September 15, Dr. Garvey hired Elaine Guzman as a tenure-track

teacher to teach ESL Computers at Foreman. Guzman

had the certifications needed to teach at elementary

school but needed special permission to teach because

she did not yet have the Type 09 certification to teach

high school students.

As things stood on September 17, 1999, Filar was the

only full-time basis substitute in the Polish bilingual

program and she had moved from a state-funded position

to a Board-funded position. That same day, Dr. Garvey

informed Filar that he was displacing her to the cadre.

Following her displacement, Filar reported to the Office

of Culture and Language, the department in Chicago

Public Schools that is responsible for administering bilingual programs. Filar claims that someone at OCL told

her to return to Foreman because her position was not

being closed. Filar then returned to Foreman and on

September 27, 1999 she received a second letter from

Dr. Garvey stating that she was being displaced to the

cadre. After she received this second letter, Filar reported

to the Board again and she was told to return to Foreman

as a cadre substitute. But when she arrived, Dr. Garvey

refused to accept her as a cadre substitute at Foreman,

explaining later in his deposition that he was concerned over the bad blood from the displacement and

the potential disruptive effect it might have on the school.
No. 07-1275 7

Filar then filed a grievance challenging her displacement. In December 1999, Dr. Garvey submitted a letter

regarding his decision to displace Filar. He stated that he

had displaced her because “she was the least senior

member of the faculty in the Polish Bilingual Program” and

the “decrease in enrollment in the Polish program necessitated a decrease in the staff. Ms. Filar was the only [fulltime basis substitute] left in the Polish Bilingual program

at this time and was displaced for that reason.”

Filar’s new role as a cadre substitute was complicated

by the fact that she suffered from osteoarthritis. Filar’s

arthritic hip made walking long distances difficult, and she

could not drive herself to work. In November 1999, she

requested an accommodation for her disability from

Chicago Public Schools. She wanted to be staffed at “one

place of work with minimum walking distance from

public transportation.” The Board denied her request,

stating that cadre substitutes “must report to whichever

school the Substitute Center assigns [them] to on the day

that [they] receive the assignment” and that her request was “not a matter for work-place reasonable accommodation.”

This lawsuit followed in July 2004, alleging age discrimination under the Age Discrimination in Employment Act

based on her September 1999 displacement and that the

Board violated the Americans with Disabilities Act by

failing to accommodate her disability. After discovery, the

Board filed its motion for summary judgment as to

both claims, which the district court granted. As to

Filar’s discrimination claim, the court reasoned that she

had failed to show a similarly situated employee and thus

could not prove her prima facie case. Even if she could, the

court reasoned, Filar had presented insufficient evidence
8 No. 07-1275

of pretext for the case to proceed to trial. As for Filar’s

ADA claim, the court reasoned that the Board had no

obligation to staff her at schools near public transportation. Because proximity to public transportation did not

affect her ability to actually teach in a classroom, the

accommodation she had requested was not related to the

“essential functions of the employment position,” scotching

her ADA claim. This appeal followed.

II. Discussion

Filar raises two general issues on appeal, tracking her

two causes of action. First, she claims that the district court

erred in granting the Board’s motion for summary judgment as to her age discrimination claim. Second, she argues

that the district court had an unduly cabined view of the

“essential functions” of the cadre substitute teacher and

thus erroneously granted the Board’s summary judgment

motion as to her ADA claim. We review both claims

de novo, drawing all reasonable inferences in Filar’s

favor. EEOC v. Bd. of Regents of University of Wisconsin Sys.,

288 F.3d 296, 301 (7th Cir. 2002). The following sections

discuss each in turn.

A. ADEA Claim

As she did before the district court, on appeal Filar

challenges her displacement from Foreman in September

1999, alleging that age discrimination, and not some

legitimate personnel concern, was the engine behind

Dr. Garvey’s decision. Filar chose to prove her case indirectly through an adapted version of the burden-shifting

framework first announced in McDonnell Douglas Corp. v.
No. 07-1275 9

Filar’s brief justifies this decision as resulting from a lack of 1

“direct evidence of discrimination.” But despite the nomenclature,“ ’direct’ proof of discrimination is not limited to

near-admissions by the employer that its decisions were based

on a proscribed criterion (e.g., ‘You’re too old to work here.’),

but also includes circumstantial evidence which suggests

discrimination through a longer chain of inferences.” Atanus

v. Perry, ___ F.3d ___, 2008 WL 696908, *5 (7th Cir. 2008). One

can question whether the differences that remain between the

“direct” and “indirect” methods are more a result of history

than logic. In any event, Filar’s claimed lack of “direct” evidence

is not necessarily a sufficient reason to scuttle a “direct” method

claim.

Green, 411 U.S. 792 (1973). As applied to employment

1

actions like displacement, if a plaintiff establishes her

prima facie case, the burden shifts to the employer to

articulate a legitimate non-discriminatory reason for

the adverse employment action; after which the burden

shifts back to the plaintiff to present some evidence that

this reason is a pretext for discrimination. Radue v.

Kimberly-Clark Corp., 219 F.3d 612, 618 (7th Cir. 2000). This

procedural device sharpens the factual issues for a

possible trial; the employer must provide some reason

for its action that a plaintiff can attack, rather than

stand mute except to deny the sufficiency of the plaintiff’s evidence. Filar raises several issues related to this

framework, discussed in turn in the sections that follow.

1. Appropriate Prima Facie Case

Filar argues first that the court used the wrong set of

factors to evaluate her prima facie case. The district court

applied the familiar four-factor prima facie case for ad-
10 No. 07-1275

verse employment actions requiring proof that (1) Filar

was over age forty; (2) her job performance met Dr.

Garvey’s expectations; (3) she suffered an adverse employment action; and (4) the employer treated “similarly

situated” employees at least ten years younger more

favorably. See Burks v. Wisconsin Dept. of Transp., 464 F.3d

744, 750-51 (7th Cir. 2006). On appeal, Filar instead characterizes her displacement as being part of a mini-reduction

in force. When an employee is dismissed as part of a miniRIF, the dismissed worker’s duties are spread out among

the remaining employees. Merillat v. Metal Spinners, Inc.,

470 F.3d 685, 690 (7th Cir. 2006). The retention of younger

employees who take on the dismissed employee’s responsibilities “is nothing more than a demonstration of

more favorable treatment, particularly tailored to the

factual circumstances of a mini-RIF case.” Id. at 690 n.1. As

a result, the prima facie case in this context swaps the

fourth requirement in the basic framework—that a similarly situated younger employee was treated more

favorably—with another—that her duties were absorbed by younger workers who were retained following

the mini-RIF. Id. at 690-691. Thus, in Filar’s estimation,

the district court applied the wrong standard and thus

erred in requiring proof that “similarly situated” younger

teachers were treated more favorably.

The district court cannot be faulted for failing to employ the mini-RIF standard because a mini-RIF claim

was not fairly before it. Filar’s complaint did not include

allegations consistent with a mini-RIF claim. And in her

response to the defendant’s motion for summary judgment, Filar argued that a reduction in force, the regularsized variety, precipitated her displacement. As this Court

has explained, the relevant factual inquiry in a reduction-
No. 07-1275 11

Filar’s presentation of the evidence in her Local Rule 56.1 2

statement of the facts was also inconsistent with a mini-RIF

claim. On appeal, she only points to two facts from her

statement—that Rydberg and Monaco taught computers in

the 1999 school year—to support her mini-RIF claim. That

these two were teaching computers, a subject that Filar had

taught prior to displacement, does not mean that they “absorbed” her duties after her departure. To show that, something more would be needed—for example, a showing that

this was an increase in their duties. Michas, 209 F.3d at 693.

In any event, the mini-RIF claim was simply not before the

district court, as a legal matter or as represented by the facts.

in-force case is not the same as a mini-RIF case. In the

former, a plaintiff’s position was eliminated entirely and

will not be refilled whereas “[t]he point of a mini-RIF

unlike a true RIF, is that the job really was not eliminated

at all; because the fired employee’s duties were absorbed

by others, they were effectively ‘replaced,’ not eliminated.”

Bellaver v. Quanex Corp., 200 F.3d 485, 495 (7th Cir. 2000).

The practical effect of this formal difference, one that is

fatal to Filar’s claims, is that the type of proof expected of

a mini-RIF claim is different than that stemming from a

formal RIF. For her mini-RIF claim, Filar had to show

that her position was “absorbed” by the remaining

younger co-workers, not just eliminated. Michas v. Health

Cost Controls of Illinois, Inc., 209 F.3d 687, 693 (7th Cir.

2000). But Filar did not purport to make this showing in

either her memorandum in opposition to the Board’s

motion for summary judgment or her Local Rule 56.1

statement of facts. Instead, the thrust of her RIF argument

2

consisted of a statement that “younger workers . . . were

favorably retained in the RIF while [she] was displaced.”

An apt statement of her evidentiary burden in a RIF
12 No. 07-1275

claim, but not a mini-RIF one. In short, the district court

did not err in its treatment of Filar’s claim because it was

never asked to treat such a claim. See Weigel v. Target

Stores, 122 F.3d 461, 464 (7th Cir. 1997). Accordingly, the

district court applied the right prima facie case.

2. “Similarly Situated” Younger Employees

Even so, did it apply the standard correctly? The parties

agree that (1) Filar was over forty in September 1999;

(2) she was meeting the school’s legitimate employment

expectations; and (3) she suffered an adverse employment

action—three of the four elements of her prima facie

case. But the parties dispute whether Filar presented a

“similarly situated” younger employee who was treated

more favorably. The district court rejected each of Filar’s

proposed comparators because, prior to Filar’s displacement, each was a tenure-track teacher, not a full-time

substitute like Filar. Because tenure-track teachers do not

compete with full-time substitutes in terms of seniority,

the court reasoned, Filar could not point to them as

“similarly situated” younger employees and thus could

not establish her prima facie case.

We disagree. Whether two employees are “similarly

situated” is a common sense inquiry that depends on the

employment context. Radue, 219 F.3d at 618. The purpose

of the prima facie case is to ensure that there is enough

evidence to raise the specter of discrimination, justifying

judgment for the plaintiff if the employer does not provide

a legitimate business reason for its action. See Collier v.

Budd Co., 66 F.3d 886, 890 (7th Cir. 1995). All things

being equal, if an employer takes an action against one

employee in a protected class but not another outside that
No. 07-1275 13

class, one can infer discrimination. See Humphries v. CBOCS

West, Inc., 474 F.3d 387, 405 (7th Cir. 2007). The “similarly

situated” prong establishes whether all things are in fact

equal. Id. To make this showing, a plaintiff need not

present a doppelganger who differs only by having

remained in the employer’s good graces. But the comparator must still be similar enough “to eliminate confounding

variables, such as differing roles, performance histories, or

decision-making personnel, [so as to] isolate the critical

independent variable: complaints about discrimination.”

Id.

Two of the comparators offered by Filar—Rydberg, 42,

and Monaco, 39—were “similarly situated” younger employees for purposes of her prima facie case. All three had

taught at Foreman for roughly the same period of time.

Dr. Garvey hired Filar in 1992 and he hired both Rydberg

and Monaco soon thereafter while Filar was grieving her

original displacement. All three were properly certified,

and by all measures their duties were the same. To the

extent that their certifications differed at the time that

Dr. Garvey displaced Filar, it was because Filar had

received her Type 09 teaching certificate in 1997 whereas

Rydberg and Monaco had only attained it in 1999. In

addition, Filar’s Type 09 certificate had the bilingual

approval whereas neither Rydberg’s nor Monaco’s did.

Dr. Garvey supervised all three teachers, and, as far as

the record shows, none had any disciplinary or performance issues at the time of Filar’s displacement.

Dr. Garvey considered Filar to be a good teacher; he

had consistently rated Filar’s performance evaluations

as “Superior” or “Excellent” from 1994 through 1999. The

record does not indicate what scores Rydberg and Monaco

received, but given Filar’s high marks we can assume
14 No. 07-1275

for present purposes they were similar in this regard

as well.

Despite these similarities, the district court considered

their differences in seniority to be fatal to any showing of

similarity. As the court correctly noted, full-time substitutes were less senior to tenure-track teachers for purposes of displacement. And, unlike Filar, both comparators were tenure-track teachers. In some circumstances,

differences in seniority will preclude a showing that two

employees are “similarly situated” or of age discrimination

more generally. To the extent that seniority is a simple

proxy for something like the length of employment and is

something that an employer must credit when making

employment decisions, differences in seniority will tend to

make two employees dissimilar for purposes of the plaintiff’s prima facie case. See, e.g., Doe v. First Nat. Bank of

Chicago, 865 F.2d 864, 877 (7th Cir. 1989) (crediting comparator’s “long tenure” in denying that she was “similarly

situated”). This is because, in making the employment

decision, the employer had to credit a factor over which it

had no control, and thus a finding of intentional age

discrimination would be implausible given that the employer’s “intent”—discriminatory or otherwise—was

largely irrelevant to the decision. Had this been the case

at Foreman, the district court would have been right

to conclude that Filar was not “similarly situated” to

tenure-track teachers.

But where seniority is unmoored from everything but

the discretion of the employer, the simple fact that the

comparator is more senior to the plaintiff may not be

dispositive, even where the employer must credit seniority

in employment decisions. An employer could exercise

its discretion in conferring seniority in a discriminatory

fashion, making an immediately subsequent employment
No. 07-1275 15

action based on seniority discriminatory as well. In a

related context, we have held that an “employer cannot

frustrate the statute merely by assigning every employee

a different job title.” Bellaver v. Quanex Corp., 200 F.3d

485, 494 (7th Cir. 2000). Similarly, an employer cannot

defeat a claim of discrimination by giving younger employees greater seniority rights immediately before displacing an older, but less senior, employee.

This is not to say that Dr. Garvey and the Board have

done so in this case. But the district court concluded

that the differences in seniority alone were sufficient to

defeat a finding that Filar’s comparators were “similarly

situated.” Given the manipulability of seniority at Foreman, this was error. Although seniority had some bite to

it when a principal had to displace teachers—by rule,

less senior teachers went before more senior—the conferral of seniority itself consisted of nothing more than a

mine-run, discretionary personnel decision made by the

principal. But see Adelman-Reyes v. Saint Xavier University,

500 F.3d 662, 667 (7th Cir. 2007) (discussing reluctance

of court to get involved in tenure decisions where accompanied by “multiple layers of independent review”). In

addition, as seen above, a teacher that a principal moved

to a tenure-track position did not thereby obtain greater

duties. Nor did the principal necessarily make the decision

solely on the basis of some difference in the teachers’

respective qualifications—something that might otherwise preclude a showing of “similarly situated.” Whether

on the tenure track or a full-time substitute, all three

were teachers with, as far as the evidence shows, nearly

identical responsibilities and qualifications. See Bellaver, 200

F.3d at 494 (stating that comparators and plaintiff “had

the ability to perform each other’s tasks, even though
16 No. 07-1275

they had different titles and specific responsibilities”). In

short, although principals are free to make seniority

decisions as they see fit—just as any employer can move

an employee from one job to the next—the differences

in seniority here were not inconsistent with intentional

discrimination, as the district court implied. As a result,

in light of the other factors listed above, Filar has pointed

to two “similarly situated” younger employees to establish her prima facie case.

3. The Board’s Legitimate Non-Discriminatory

Reason and Filar’s Evidence of Pretext

Filar having established her prima facie case, the Board

must articulate a legitimate business reason for displacing her and not the younger teachers. Before the

district court and here on appeal, the Board has pointed

to the decline in enrollment in the Polish bilingual program combined with the fact that Filar was the least

senior teacher in the program. The issue now is whether

this reason was pretextual. Showing pretext requires

“[p]roof that the defendant’s explanation is unworthy of

credence.” Reeves v. Sanderson Plumbing Products, Inc.,

530 U.S. 133, 147 (2000); see also Sublett v. John Wiley & Sons,

Inc., 463 F.3d 731, 737 (7th Cir. 2006) (“Pretext is a ‘lie,

specifically a phony reason for some action.’ ”). The

plaintiff’s ultimate burden is to show that intentional age

discrimination motivated the employer’s action, but

marshaling such evidence does not always require a

smoking gun or an eyewitness to the employer’s discriminatory designs; “the trier of fact can reasonably infer

from the falsity of the explanation that the employer is

dissembling to cover up a discriminatory purpose.” Reeves,

530 U.S. at 147. Thus, in certain circumstances, “a plain-
No. 07-1275 17

Filar makes at times contradictory claims regarding when 3

Dr. Garvey actually knew that someone would need to be

(continued...)

tiff’s prima facie case, combined with sufficient evidence

to find that the employer’s asserted justification is

false, may permit the trier of fact to conclude that the

employer unlawfully discriminated.” Id.

We conclude that Filar has presented enough evidence

to undermine the Board’s claim, specifically the evidence

of the timing and effect of the series of personnel decisions

Dr. Garvey made over the summer and fall of 1999. A

jury could conclude that the only reason that Filar was the

least senior full-time substitute at the time of the displacement decision was because Dr. Garvey had put her, and

not the younger teachers, in that position. First, in

spring 1999, Dr. Garvey knew that the demand for Polish

bilingual education would decrease. An affidavit and

summary chart from Rosa Vazquez, the Executive Administrator in the Department of Language of Culture,

indicated that Foreman would lose one Board-funded

position between 1998 and 1999, though the date of this

report was the fall of 1999. In her deposition, she stated

that school principals received a similar report estimating

prospective demand for school programs in the spring

of every school year. In addition, this information would

be available “live” to school principals throughout the

year. Stephen Heller, a Human Resources specialist,

similarly described the staffing process as being ongoing

throughout the school year, including through the use of

projections. Thus, the evidence, viewed in the light most

favorable to Filar, shows that in spring 1999 Dr. Garvey

knew he would be losing one Board-funded position.3
18 No. 07-1275

(...continued) 3

displaced. On the one hand, she says that Dr. Garvey “embarked

on a plan to displace Filar that dated back to the early summer of 1999.” And that he wanted “to isolate Filar as the only

[full-time substitute] in the Polish bilingual program.” But in the

next breath, she claims that staffing needs could not be made

until the fall of 1999, which is hard to reconcile with her argument that Dr. Garvey bent procedural personnel rules to his

designs from the “early summer of 1999.” Because the record

does not support her latter claim, we construe her more general claim consistently with what the record does support.

Second, in spring and summer 1999, Dr. Garvey made

personnel decisions to move Filar from the most to the

least senior full-time substitute position. At the end of

the 1998 school year, Filar was still a full-time basis substitute, having a slightly longer tenure than either Rydberg or Monaco. In March 1999, Rydberg received his Type

09 certificate, though not the bilingual approvals, and on

July 23, 1999 Dr. Garvey appointed Rydberg to a tenuretrack position. On August 18, 1999, Monaco received her

Type 09 certificate, similarly without her bilingual approvals, and on September 3, 1999, Dr. Garvey appointed her

to a tenure-track position. In justifying his decisions to

move Rydberg and Monaco, but not Filar, to tenure-track

positions, Dr. Garvey said that it was based on his “judgment” that they were “more suited to the position.” But

in later explaining how he exercised this “judgment,”

Dr. Garvey could not recall any of the specifics. Third, on

September 12, 1999, Dr. Garvey moved Filar out of a statefunded position—which would remain funded—into a

Board-funded position—which would not. He then displaced Filar.
No. 07-1275 19

Up to this point, the evidence is consistent with both a

desire to oust Filar—for whatever reason—and an intent

to discriminate against her because of her age. Nonetheless, the differential treatment afforded Filar and her

younger colleagues, along with the timing of Dr. Garvey’s

decisions, inch Filar’s case forward and satisfy us that

an issue of fact exists as to discrimination. First, Dr. Garvey

failed to appoint Filar once she was properly certified

but almost immediately appointed younger teachers to

more senior positions. See Gordon v. United Airlines, Inc.,

246 F.3d 878, 892 (7th Cir. 2001) (“A showing that similarly

situated employees belonging to a different racial group

received more favorable treatment can also serve as

evidence that the employer’s proffered legitimate, nondiscriminatory reason for the adverse job action was a pretext for racial discrimination.”); see also Fischer v. Avanade,

Inc., 519 F.3d 393, 405-06 (7th Cir. 2008). Filar had received

her Type 09 certification in 1997. Despite the fact that it

was fairly common for full-time substitutes to become

tenure-track teachers after receiving this certification,

Filar did not move once she received her Type 09 certification. But when Rydberg, 42, and Monaco, 39, received

their certifications in spring and summer 1999, Dr. Garvey

almost immediately made them tenure-track teachers.

Filar maintained “Superior” and “Excellent” in her reviews, and in his deposition Dr. Garvey could not give any

reason for failing to move Filar to the tenure track except

that “he felt these [other] teachers suited [tenure-track

positions] better.” Because the only salient difference

between Filar and the younger teachers was age, a jury

could conclude that age motivated Dr. Garvey’s decisions.

In addition, the timing of Dr. Garvey’s appointment of

Monaco and Rydberg was questionable. Both Rydberg and
20 No. 07-1275

This case also implicates a line of reasoning in our case law 4

that deserves mention. This Court has held that an “inference of

nondiscrimination” in age discrimination cases arises when

the plaintiff is already over 40 when hired and the same person

does the hiring and the firing. See, e.g., Ritter v. Hill ‘N Dale Farm,

Inc., 231 F.3d 1039, 1045 (7th Cir. 2000); Chiaramonte v. Fashion

Bed Group, Inc., 129 F.3d 391, 399 (7th Cir. 1997). This inference

has the most bite where “a relatively short time span” separates

the two. See Ritter, 231 F.3d at 1044 (two years), Chiaramonte, 129

F.3d at 399 (termination followed two years after retention of

employee in merger); Rand v. CF Industries, Inc., 42 F.3d 1139,

1147 (7th Cir. 1994) (two years). This is because it is unlikely that

a decisionmaker developed an “aversion to older people” in the

“relatively short time span” between hiring and firing.

Chiaramonte, 129 F.3d at 399. Here, Filar was well within the

protected class, 62 years old, when hired by Dr. Garvey, who

ultimately displaced her. Nonetheless, two considerations

convince us that this inference of nondiscrimination is not

controlling in this case. First, Filar’s hiring and displacement were seven years apart, a period sufficient to dull the

inference that Dr. Garvey had not discriminated. Aside from

flagrant ageism—or an “aversion to older people”—the ADEA

aims to curb actions based on an employer’s unfair assumptions

about an older worker’s productivity. See General Dynamics

(continued...)

Monaco went from full-time substitutes to protected

tenure-track teachers immediately before Dr. Garvey

displaced the least senior full-time substitute. Without

first making these two personnel moves, Dr. Garvey

would have needed to displace a younger teacher, and not

Filar. When viewed with Filar’s prima facie case and the

other evidence, this evidence of Dr. Garvey’s seemingly

strategic behavior would be sufficient to support a finding

of discrimination.4
No. 07-1275 21

(...continued) 4

Land Systems, Inc. v. Cline, 540 U.S. 581, 586-87 (2004); 29 U.S.C.

§ 621(a)(2) (2006). As workers age, their marginal productivity

may fall and the costs of retaining them may rise, whether

through higher benefits costs or the higher salaries they’ve

earned. Cline, 540 U.S. at 586-87. As a result, employers might

think that younger workers can do the same work as older

workers at a lower price, whether measured in time or

money. Giving effect to these assumptions by swapping the

older with the younger worker would be an act of age discrimination. Hazen Paper Company v. Biggins, 507 U.S. 604, 610

(1993) (“It is the very essence of age discrimination for an older

employee to be fired because the employer believes that

productivity and competence decline with old age.”). For this

reason, the fact that a worker was within the protected class

when hired might not be as telling in some cases: An employer

may assume an over-forty employee is productive when hired

but not years later. It may be reasonable to assume that

Dr. Garvey did not have an “aversion to older people” because

he hired Filar when she was 62. But it’s just as reasonable to

assume that Dr. Garvey viewed Filar as productive at 62 but

not at 69. Second, placing too strong a reliance on an inference

of nondiscrimination may go too far at the summary judgment stage. In Filar’s case, this inference would be in favor of

the party moving for summary judgment. But the Supreme

Court and this Court have recognized that summary judgment in discrimination cases should not be treated differently

than other kinds of cases. See Reeves, 530 U.S. at 148 (“[T]rial

courts should not ‘treat discrimination differently from other

ultimate questions of fact.’ ”) (quoting St. Mary Honors Center v.

Hicks, 509 U.S. 502, 524 (1993)); Adams, 231 F.3d at 428. Under

Rule 56, “the drawing of legitimate inferences from the facts are

jury functions,” and the court “must disregard all evidence

favorable to the moving party that the jury is not required to

(continued...)
22 No. 07-1275

(...continued) 4

believe.” Reeves, 530 U.S. at 150-51 (so describing the approach

under Rule 50 where “the inquiry . . . is the same”). In light of

the above, we do not believe that a jury is required to believe

that Dr. Garvey did not discriminate against Filar when she

was 69 just because he hired her when she was 62. Thus, the

inference of nondiscrimination does not control in this case.

The ultimate verdict in this case is by no means a foregone conclusion. A jury could conclude that Dr. Garvey

just wanted to displace Filar because that was the best

decision for the school. Or the jury could surmise that

Dr. Garvey meant to ditch an older worker by giving

younger teachers seniority immediately prior to making a

seniority-based personnel decision. Because the evidence

slightly preponderates towards the latter and because of

the Supreme Court’s “cautionary note not to grant summary judgment too readily when facts are susceptible to

two interpretations,” Adams v. Ameritech Svces., Inc., 231

F.3d 414, 428 (7th Cir. 2000); see also Gordon, 246 F.3d at

893, granting the Board summary judgment on this claim

was unwarranted, and we therefore reverse.

B. ADA Claim

Filar also appeals the district court’s order granting the

Board’s motion for summary judgment as to her failure to

accommodate claim under the Americans with Disabilities

Act. The ADA prohibits “discriminat[ion] against a qualified individual with a disability because of the disability of

such individual in regard to . . . terms, conditions, and

other privileges of employment.” 42 U.S.C. § 12112(a).

Discriminating against a “qualified individual with a
No. 07-1275 23

disability” means, as is relevant to Filar’s claim, not

making a “reasonable accommodation” where doing so

would allow a disabled employee to “perform the essential functions of the employment position” without imposing an “undue hardship” on the employer. See 42 U.S.C.

§§ 12112(b)(5)(A) (reasonable accommodation and undue

hardship); 12111(8) (definition of “qualified individual

with a disability”). In other words, if the employer can

make reasonable changes to features of the job or the

work environment so that a disabled person can work

satisfactorily, the employer has to make those changes.

As discussed, Filar has an arthritic hip that makes

walking long distances difficult. After Dr. Garvey displaced Filar from Foreman to the roving cadre of substitutes, she requested that the Board staff her at “one place

of work with minimum walking distance from public

transportation,” listing Foreman High School and three

other acceptable schools. Later, the Board denied her

request for an accommodation. In a letter from the ADA

Administrator in the Human Resources department, the

Board stated that displaced cadre teachers “must report

to whichever school the Substitute Center assigns [them]

to on the day that [they] receive the assignment.” How the

cadre teacher did this was “not a matter for work-place

reasonable accommodation.” The Board also stated that,

“as a result of the School Reform Act, Central Office cannot

unilaterally assign an employee to a school as an accommodation without the acceptance and approval of the

principal of the receiving school.”

Filar argued below that the Board should have granted

her request, but the district court disagreed. In dismissing

Filar’s disability claim, the court held that Filar was not a

“qualified individual with a disability” because she had
24 No. 07-1275

not “allege[d] that this hip condition substantially prohibits

her from conducting her job as a teacher.” And her

“proximity to public transportation does not affect the

way in which she teaches Polish in her capacity as a

substitute teacher.”

Now on appeal, Filar claims this was error. We affirm

the district court’s dismissal of this claim, though for

different reasons. The fact that Filar’s hip condition did

not affect her ability to teach, which the district court

credited, does not end the matter; she can still be a “qualified individual with a disability.” The ADA defines this

term of art as an “individual with a disability who, with

or without reasonable accommodation, can perform the

essential functions of the employment position.” 42 U.S.C.

§ 12111(8). As the text indicates, that an employee can

“perform the essential functions” of a teaching position

despite her disability and “without reasonable accommodation” does not exclude her from the definition of a

“qualified individual with a disability.” To put it another

way, an “unqualified individual with a disability” would

be someone with a disability who could not do the job

no matter what the employer did to reasonably accommodate. See Hammel v. Eau Galle Cheese Factory, 407 F.3d

852, 862 (7th Cir. 2005).

Instead, the question is whether her requested accommodation was reasonable, and we don’t think it was. The

ADA does not exhaustively define a “reasonable accommodation,” though the term “may include . . . making

existing facilities used by employees readily accessible to

and usable by individuals with disabilities.” 42 U.S.C.

§ 12111(9)(A). Because walking long distances from the

bus stop makes it difficult to access certain schools, Filar

argues that her request was for something akin to this
No. 07-1275 25

type of accommodation. In support of her claim, she cites

to this Court’s decision in EEOC v. Sears Roebuck & Co., 417

F.3d 789 (7th Cir. 2005). In Sears Roebuck, we held that an

employer had not done enough to make the disabled

employee’s work station accessible to her. Due to her

disability, the plaintiff had problems walking long distances. When one supervisor told her she could use a

shortcut through another department or eat in a stockroom near her work station, a different supervisor

would either rescind the offer or discipline the plaintiff

for her actions. In addition, Sears gave the plaintiff a

parking spot reserved for disabled employees, but it did

nothing to shorten her walk to her work station. Something

more, we held, was necessary: “these were not reasonable

accommodations because they did not consistently or

effectively make the Sears facility accessible to” the plaintiff. Reasoning by analogy, Filar urges us to reach the

same conclusion here, saying that her workplace—any

one of the schools she would need to work in on any

given day—was similarly inaccessible unless near a bus

stop.

At the highest level of abstraction, Filar’s claim has

some surface appeal. In addition to the obligations discussed in Sears Roebuck, this Court has held that reassignment to a vacant position can be part of the employer’s

obligation to reasonably accommodate. See DePaoli v. Abbott

Laboratories, 140 F.3d 668, 675 (7th Cir. 1998). Without

knowing the particulars of the Board’s cadre-assignment

policies, Filar might appear to be requesting just such

a “reassignment,” only to a specific subset of the schools

in the Chicago Public Schools that would be “accessible”

to public transportation.

But three aspects of the request convince us that it was

just not reasonable. First, based on the requirements of a
26 No. 07-1275

cadre substitute, Filar’s request would have amounted to

preferential treatment, which the ADA does not require.

Williams v. United Ins. Co. of America, 253 F.3d 280, 282 (7th

Cir. 2001). The collective bargaining agreement between

the Board and the Chicago Teachers Union requires

cadre teachers to be “continuously available to perform

substitute service” and to “accept all assignments in any

and every school” as they became available. Under the

ADA, an “employer is not required to give the disabled

employee preferential treatment, as by . . . waiving his

normal requirements for the job in question.” Williams, 253

F.3d at 282. Here, Filar was in essence requesting to opt out

of the cadre-assignment system; she only wanted “one

place to work” and not to be subjected to the far-reaching

assignment system applicable to cadre substitutes, which

may have made access to the schools difficult. Nor

would she be “available” as a substitute in the event that

she was assigned to a school that did not fit her request.

This falls well short of the cadre substitutes’ obligations

and is thus more than the ADA requires of the Board.

Second, the Board did not have the authority to assign

a cadre substitute to “one place to work.” Under the

collective bargaining agreement, the Board itself was not

responsible for slotting teachers at particular schools.

Instead, the cadre substitute would be “given the opportunity to apply and be interviewed for vacant positions.”

And the principal could select a member of the cadre to be

a full-time substitute “at any time . . . to fill an existing

vacancy.” The principal’s personnel decisions, as discussed in the previous section, resulted largely from the

discretion he or she enjoyed. The Board could not require a principal to take a particular cadre substitute, as

Filar requested.
No. 07-1275 27

Finally, even assuming that something could be arranged with Filar under the collective bargaining agreement, the administrative burden posed by Filar’s request

would have been prohibitively weighty. The plaintiff

must make a prima facie showing “that the accommodation is reasonable in the sense both of efficacious and of

proportional to costs.” Oconomowoc Residential Programs v.

City of Milwaukee, 300 F.3d 775, 784 (7th Cir. 2002). The

initial showing made by Filar in her request for an accommodation was simply too barebones to show that the

request was reasonable. There are at least 655 public

schools in the Chicago Public Schools system, including

116 high schools. See CPS At A Glance, http://

www.cps.k12.il.us/AtAGlance.html (last visited May 14,

2008). And the CTA has approximately 2000 buses that

operate over 154 routes with 12,000 bus stops. See

CTA Overview, http://www.transitchicago.com/

welcome/overview.html (last visited May 14, 2008). In

her request for accommodation and her appeal before

this Court, Filar has not given any indication of how

many of the 116 high schools would qualify besides the

four that she listed in her request for an accommodation. Thus, the Board had the option of either assigning

her to one of the four schools she requested—in violation

of the collective bargaining agreement—or researching

those schools in the City that satisfied her needs—a

costly task. Neither option is reasonable. For all these

reasons, the district court did not err in rejecting Filar’s

ADA claim.

III. Conclusion

For the foregoing reasons, we REVERSE the district

court’s order of summary judgment as to Filar’s age
28 No. 07-1275

discrimination claim and AFFIRM the district court’s

order of summary judgment as to Filar’s disability claim.

USCA-02-C-0072—5-22-08