In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 03-4266

VENDETTA JACKSON,

Plaintiff-Appellant,

v.

CITY OF CHICAGO,

Defendant-Appellee.

____________

Appeal from the United States District Court for

the Northern District of Illinois, Eastern Division.

No. 02 C 3057—Milton I. Shadur, Judge.

____________

ARGUED OCTOBER 28, 2004—DECIDED JULY 12, 2005

____________

Before RIPPLE, WOOD and EVANS, Circuit Judges.

RIPPLE, Circuit Judge. Vendetta Jackson brought this action

against her former employer, the City of Chicago (“the

City”), for violations of Title II of the Americans with

Disabilities Act (“ADA”), 42 U.S.C. § 12111 et seq., and of

section 504 of the Rehabilitation Act of 1973 (“Rehabilitation

Act”), 29 U.S.C. § 794. The district court granted the City’s

motion for summary judgment on the ground that

Ms. Jackson could not raise a genuine issue of material fact

as to whether she was a “qualified individual with a disa-
2 No. 03-4266

bility” as defined in 42 U.S.C. § 12111(8). Ms. Jackson

appealed to this court. For the reasons set forth in the following opinion, we now affirm the judgment of the district

court.

I

BACKGROUND

A. Facts

Beginning in 1985, Ms. Jackson was employed by the City

as a police officer. Shortly after beginning work, she injured

her right knee in a training exercise and underwent an

outpatient arthroscopy, but she continued to work as a

police officer on convalescent duty status. In 1987,

Ms. Jackson returned to full duty status with no restrictions.

She underwent knee surgery in 1992 and, in 1993, successfully applied for total duty disability benefits from the

Retirement Board of the Policemen’s Annuity and Benefit

Fund (“the Board”). In 1995, the Board found that Ms.

Jackson’s disability had terminated and ceased her total

duty disability benefits. She then returned to active duty in

a limited duty capacity.

In 1998, Ms. Jackson applied again to the Board for disability benefits. She claimed that her knee injury, along with

back pain and fibromyalgia, prevented her from performing

even limited police duties. In conjunction with Ms. Jackson’s

1998 application for disability benefits, the Board heard

testimony from Dr. David Demorest, the Board’s medical

advisor who reviews medical claims for disabilities. Dr.

Demorest testified that he had reviewed Ms. Jackson’s file,

which included the report of her orthopedic surgeon, Dr.

Bernard Bach. Dr. Demorest concluded that Ms. Jackson was
No. 03-4266 3

able to continue to perform limited duty with the police

department. The Board then denied Ms. Jackson’s disability

claim.

While administrative review of her claim for benefits was

still pending, Ms. Jackson sought to be reinstated at the

police department. She was directed to contact the police

department’s Medical Service Section (“MSS”), which arranged for Ms. Jackson to undergo a physical examination

conducted by United States Occupational Health (“USOH”).

USOH administered a resting electrocardiogram (“EKG”)

but, due to Ms. Jackson’s injury, did not administer a stress

EKG. MSS also received correspondence from another of

Ms. Jackson’s treating physicians, Dr. Carey Dachman.

Dr. Dachman’s letter stated that, due to Ms. Jackson’s back

pain and fibromyalgia, she could not resume her duties as

a police officer.

The City did not allow Ms. Jackson to be reinstated. The

City corresponded with Ms. Jackson, through her attorney,

to explain what needed to be done in the reinstatement

process. Beginning in September of 2000, the City wrote

several letters to Ms. Jackson’s counsel, outlining the steps

Ms. Jackson would need to take in order to be reinstated.

In April 2002, the City informed Ms. Jackson that, because

her benefits claim was no longer pending, the City would

accept her resignation unless she took some action. Ms.

Jackson did not respond. She filed the complaint in this

action on April 30, 2002. The City made her resignation

formal in May 2002.

B. District Court Proceedings

The district court granted the City’s motion for summary

judgment on the ground that Ms. Jackson had not raised a
4 No. 03-4266

1 The district court determined that Ms. Jackson’s knee injury, on

the other hand, did not support a finding that she was disabled.

genuine issue of material fact as to whether she is a “qualified individual with a disability” as defined by the ADA. See

42 U.S.C. § 12111(8).

The court concluded that Ms. Jackson’s fibromyalgia

constitutes a physical impairment for purposes of the ADA

and determined that a reasonable jury could conclude that

her fibromyalgia substantially limits Ms. Jackson in the

major life activity of walking.1

 The court then turned to the

question of whether Ms. Jackson is a qualified individual

with a disability; that is, whether she could perform the

essential functions of the job with or without reasonable

accommodation.

The district court looked to the City’s designation of the

“essential functions” of the job, in particular the requirement that police officers be “able to handle a firearm

adequately.” R.30 at 13. The district court determined that

Ms. Jackson could not perform the essential functions of the

job without reasonable accommodation, noting that

Ms. Jackson had “fail[ed] to demonstrate her ability to

handle a firearm as part of her reinstatement evaluation

in 2000,” and that Ms. Jackson’s physician, Dr. Dachman,

had “expressly testified that it would be hazardous to her

health and the health of those around her” if Ms. Jackson

carried a gun. Id.

The district court also considered whether Ms. Jackson

could perform the essential functions of the job with reasonable accommodation as defined by the ADA. See 42

U.S.C. § 12111(9)(B). The court noted that the ADA “allows

for the possibility” that Ms. Jackson could be given “the

reasonable accommodation of reassignment to another posi-
No. 03-4266 5

tion within [the] City where handling a firearm is not an

essential function.” Id. at 14. However, the court determined

that the City had fulfilled any obligation it had to provide

Ms. Jackson with a reasonable accommodation “by repeatedly notifying Jackson that she could apply for reassignment pursuant to [the] City’s standard policy.” Id. at 15. The

court concluded that Ms. Jackson was responsible for any

breakdown in the dialogue between the parties regarding

reassignment.

Ultimately, the district court held, no reasonable jury

could conclude Ms. Jackson is a qualified individual with a

disability under the ADA because she could not perform the

essential functions of the job without accommodation and

because she had failed to participate in “the standard

reassignment process offered to her by [the] City more than

once.” Id. at 17. Thus, the district court granted summary

judgment for the City.

II

ANALYSIS

A. Standard of Review

We review de novo a district court’s grant of summary

judgment. See Branham v. Snow, 392 F.3d 896, 901 (7th Cir.

2004). Summary judgment is appropriate “if the pleadings,

depositions, answers to interrogatories, and admissions on

file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving

party is entitled to a judgment as a matter of law.” Fed. R.

Civ. P. 56(c).
6 No. 03-4266

2 The showing required to make out a prima facie case under the

Rehabilitation Act differs from the showing required under the

ADA only in that a plaintiff must, in order to prove a violation of

the Rehabilitation Act, make the additional showing that she was

involved in a program which received federal financial assistance. See Silk v. City of Chicago, 194 F.3d 788, 798 n.6 (7th Cir.

1999). The parties do not dispute that this description applies to

the City.

B. Statutory Framework

“The ADA and Rehabilitation Act prohibit an employer

from discriminating against a qualified individual with a

disability because of the disability.” Silk v. City of Chicago,

194 F.3d 788, 798 (7th Cir. 1999). In order to make out a

prima facie case of discrimination under both the ADA and

the Rehabilitation Act, a plaintiff must show: (1) that she

suffers from a disability as defined in the statutes; (2) that

she is qualified to perform the essential functions of the job

in question, with or without reasonable accommodation;

and (3) that she has suffered an adverse employment action

as a result of her disability.2 See id. at 798 n.6. In order to

determine whether the Rehabilitation Act has been violated

in the employment context, we refer to the provisions and

standards of the ADA. See 29 U.S.C. § 794(d); see also

Branham, 392 F.3d at 902.

The district court determined that Ms. Jackson is an individual with a disability: A reasonable jury could find that

Ms. Jackson’s fibromyalgia substantially limited her in the

major life activity of walking. This analysis is unchallenged.

Thus, in this appeal, the parties dispute only whether

Ms. Jackson was “qualified.” We shall confine our discussion to that aspect of the prima facie case.
No. 03-4266 7

C. Qualified Individual with a Disability

The ADA defines a qualified individual with a disability

to mean “an individual with a disability who, with or without reasonable accommodation, can perform the essential

functions of the employment position that such individual

holds or desires.” 42 U.S.C. § 12111(8). The statute explicitly

gives “consideration” to “the employer’s judgment as to

what functions of a job are essential.” Id. Furthermore, “if an

employer has prepared a written description . . . , this

description shall be considered evidence of the essential

functions of the job.” Id.

We agree with the district court that the City has established that, among other considerations, the ability to handle

safely a firearm is an essential function of the position of a

sworn police officer. The “MINIMUM ELIGIBILITY REQUIREMENTS” of the “SWORN LIMITED/

CONVALESCENT DUTY PROGRAM” show that even a

police officer assigned to “limited/convalescent duty” must

be able to “safely carry, handle, and use [her] Department

approved, prescribed firearm.” R.19, Tab G, Ex.1 at 1. A

police officer, including one on “limited/convalescent

duty,” also must be able to “maintain an independent and

stable gait.” Id. We shall not “second-guess the employer’s

judgment as to the essential functions” of a position. Peters

v. City of Mauston, 311 F.3d 835, 845 (7th Cir. 2002). In any

event, Ms. Jackson does not appear to dispute that being

able to maintain an independent and stable gait and to carry

safely a firearm are essential functions of the police officer

position.

1.

Ms. Jackson contends that she is capable of performing the

essential functions of the job without any accommodations.
8 No. 03-4266

The City, on the other hand, contends that Ms. Jackson has

failed to raise a genuine issue of material fact as to whether

she can perform the essential functions of the job without

any accommodation.

Dr. Dachman, Ms. Jackson’s own physician, notified MSS

in writing that Ms. Jackson was being treated for fibromyalgia. In that correspondence, he included the handwritten message that, “due to her ongoing pain/fatigue—she

cannot resume her dutys [sic] as a police officer.” R.19, Tab

B, Ex.6 at 1.

Later, in deposition testimony, Dr. Dachman stated that

he did not believe that “somebody with fibromyalgia and

back pain would be safe in the streets either to herself or to

a civilian in reference to . . . trying to pull the trigger.” R.19,

Tab N at 11. He further stated that Ms. Jackson “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.” Id. Dr. Dachman also specifically noted his opinion that Ms. Jackson is not able to

carry a gun, regardless of any of the other duties of her

position: “[I]t’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.” Id. at 24. He felt that a gun would be too heavy for Ms.

Jackson to wear on a regular basis.

Ms. Jackson contends that Dr. Dachman’s opinion regarding her ability to handle safely a firearm should not be

dispositive of the question whether she can perform the

essential functions of the job without accommodation. She

contends that the opinions of other physicians show that she

is capable of returning to work. For instance, she contends

that Drs. Bach and Demorest opined that she could perform

light duty. She submits that the district court cannot, on
No. 03-4266 9

3 Ms. Jackson submits that Buttitta v. City of Chicago, 9 F.3d 1198

(7th Cir. 1993), required the City to give her a full medical examination or to ask her to qualify with a weapon at a firing range.

However, we do not believe that Buttitta controls our review in

this case. In Buttitta, which concerned an officer’s claim that he

had been denied due process in connection with the deprivation

of a property interest, this court held that, after the Board makes

a finding that an officer’s disability has ceased, the officer must

be returned to the police department for an opportunity to

“demonstrate [her] fitness for active duty.” Id. at 1204. This court

construed a provision of Illinois’ pension code to mean that “a

disability ceases only if the Board and the [police] department

agree to that effect.” Id. As we shall discuss in greater detail

below, Ms. Jackson failed to participate in the interactive process

which would have allowed the police department to conclude

whether she was fit for active duty. However, she had the opportunity to demonstrate her fitness and, therefore, the principles

underlying Buttitta have not been offended.

Ms. Jackson also contends that Terrano v. Retirement Board of the

Policemen’s Annuity and Benefit Fund, 733 N.E.2d 905 (Ill. App. Ct.

(continued...)

summary judgment motion, weigh conflicting evidence. See

Babrocky v. Jewel Food Co. & Retail Meatcutters Union, 773 F.2d

857, 861 (7th Cir. 1985).

However, as the City points out, the opinions of Drs. Bach

and Demorest do not contradict Dr. Dachman’s opinion

regarding Ms. Jackson’s ability to handle a firearm; they

both conclude that she may return to some form of light

duty but do not discuss her fibromyalgia. Thus, we cannot

be certain that they even considered it. On this record, we

must conclude that Ms. Jackson has failed to show that there

is a genuine issue of material fact as to whether she can

perform, without accommodation, the essential function of

safely handling a firearm.3
10 No. 03-4266

3 (...continued)

2000), required the City to identify a position to which she could

return. However, as the City points out, that case did not concern

an employer’s obligation to engage in the interactive process

contemplated by the ADA.

The City also contends that Ms. Jackson has failed to raise

a genuine issue of material fact regarding her ability to

maintain a stable and independent gait. In light of our

conclusion that Ms. Jackson has not raised an issue of fact as

to her ability to handle safely a firearm, we need not

consider whether there is an issue of fact as to her ability to

maintain a stable gait.

2.

We next shall consider whether Ms. Jackson can perform

the essential functions of the position with reasonable accommodation. An individual with a disability falls within

the definition of a “qualified individual with a disability” if

she can perform the essential functions of the desired

position with reasonable accommodation. 42 U.S.C.

§ 12111(8). The ADA obligates an employer to provide a

qualified individual with a reasonable accommodation. See,

e.g., Rehling v. City of Chicago, 207 F.3d 1009, 1014 (7th Cir.

2000); see also 42 U.S.C. § 12111(9)(B) (listing examples of

reasonable accommodations). For instance, an employer

may be required to reassign a disabled employee to a vacant

position if the employee no longer can perform the essential

functions of the job she holds. See Rehling, 207 F.3d at 1014.

However, the employer is not required to “manufacture a

job that will enable the disabled worker to work despite his

disability.” Hansen v. Henderson, 233 F.3d 521, 523 (7th Cir.

2000). “The employer need only transfer the employee to a
No. 03-4266 11

position for which the employee is otherwise qualified.”

Rehling, 207 F.3d at 1014 (internal quotation omitted).

The language of the ADA itself demonstrates that a reasonable accommodation is connected to what the employer

knows about the specific limitations affecting an employee

who is a qualified individual with a disability. See 42 U.S.C.

§ 12112(b)(5)(A) (defining the term “discriminate” to include “not making reasonable accommodations to the known

physical or mental limitations of an otherwise qualified

individual with a disability” (emphasis added)); see also Beck

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

Cir. 1996) (“By the statutory language, ‘reasonable accommodation’ is limited by the employer’s knowledge of the

disability.”). Thus, the federal regulations implementing the

ADA contemplate an interactive process between employer

and employee in order to determine the appropriate

accommodation for a qualified individual with a disability:

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.

29 C.F.R. § 1630.2(o)(3); see also Rehling, 207 F.3d at 1015-16.

Typically, the burden of “exploring” reasonable accommodation lies with the employer. Hansen, 233 F.3d at 523.

However, this court also has held that, when considering

the success of the interactive process, we “first look at

whether there is a genuine issue of material fact regarding

the availability of a vacant position to accommodate” the

employee. Ozlowski v. Henderson, 237 F.3d 837, 840 (7th Cir.

2001). “It is the plaintiff’s burden to show that a vacant
12 No. 03-4266

position exists for which [s]he was qualified.” Id. If such a

position is available, then the court may consider whether

“failure to provide that accommodation was due to a

breakdown in the interactive process.” Id.

We have recognized that there is no “hard and fast rule”

for assigning responsibility when a “breakdown” in the

interactive process occurs. Beck, 75 F.3d at 1135. However,

this court has held that, when the parties are “missing information . . . that can only be provided by one of the

parties, . . . the party withholding the information may be

found to have obstructed the process.” Id. at 1136.

Ms. Jackson contends that the City failed fully to engage

in the interactive process with her, “thereby making it

impossible for her to identify what, if any, accommodation

she may require.” Appellant’s Br. at 15. The City, on the

other hand, submits that it was not obligated to engage in

an interactive process with Ms. Jackson because she is not a

qualified individual with a disability in light of the fact that

she cannot safely carry and handle a firearm. The City also

contends that Ms. Jackson did not properly assert her right

to the interactive process.

The record in this case reveals that Ms. Jackson knew of

the City’s willingness to engage in the interactive process.

She received, through her counsel, several letters from the

City requesting clarification of Ms. Jackson’s ability to

return to duty. In a letter dated September 27, 2000, the City

explained that, “if Ms. Jackson is claiming that she can

perform her position as a police officer with limitations,

please describe the nature and extent of her limitations and

we will evaluate her for return to duty under the department’s limited duty policy.” R.19, Tab R, Ex.1 at 2. As well,

the City noted that,
No. 03-4266 13

if Ms. Jackson contends that she is unable to perform

any duties as a police officer, but can perform some

other vacant job for the City, please advise and we will

forward to her the City’s reasonable accommodation

request forms and determine whether she is qualified to

perform any other currently vacant positions.

Id.

In a letter dated October 5, 2000, the City informed Ms.

Jackson, through her counsel, that, “[i]f she is requesting to

return to work with limitations, she needs to submit medical

information from her physicians as to the nature and extent

of her limitations.” Id., Ex.2 at 1. In a letter dated October 20,

2000, the City advised, “[a]s soon as [she] clarifies whether

she can work, and submits medical documentation from her

physician . . . , the department will be able to make a

decision.” Id., Ex.3 at 1.

Ms. Jackson replied to the City’s requests only with conclusory statements such as the following: “Officer Jackson

is not claiming that she is physically unable to return to

work. She is asking to be reinstated.” R.19, Tab Q, Ex.3 at 1.

Furthermore, Ms. Jackson’s counsel’s letter of September 29,

2000, did not state Ms. Jackson’s physical limitations and

did not forward medical records to the City, but noted that

“[s]omebody in the Department should be able to make a

decision or reinstatement based upon the information that

is already available and in the Departments [sic] file,” and

also noted that “[i]t is . . . the Department, not Officer

Jackson, that knows the types [of] positions that may be

available to Officer Jackson given any physical limitations

she may have.” Id. In light of this evidence, we must agree

with the district court’s determination that Ms. Jackson was

responsible for the breakdown in the interactive process and

with the court’s subsequent conclusion that she could not

claim that the City failed to accommodate her.
14 No. 03-4266

In sum, on the record before us, we must conclude that

Ms. Jackson is not a person with a disability who, subject to

reasonable accommodation, can perform the essential

functions of the police officer position. It is clear that being

able to carry a firearm safely is an essential function of the

police officer position; it is equally clear that, due to her

fibromyalgia, Ms. Jackson is not capable of handling safely

a weapon. Furthermore, to the extent that Ms. Jackson is

claiming that the City has abandoned its obligation to find

her a position working for the City outside of the Chicago

Police Department, we must conclude that Ms. Jackson

failed to engage in the interactive process.

Conclusion

For the reasons set forth in the foregoing opinion, the

judgment of the district court is affirmed.

AFFIRMED

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—7-12-05