### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 19

‐ 2780

M ARK M LSNA

, Plaintiff

‐ Appellant

,

v.

U NION P ACIFIC R AILROAD C OMPANY

, Defendant

‐ Appellee

.

____________________

Appeal from the United States District Court for the

Western District of Wisconsin.

No. 18

‐ cv

‐ 37

‐ wmc

— William M. Conley

, Judge

.

____________________

A RGUED M AY 27, 2020

— D ECIDED S EPTEMBER 14, 2020

____________________

Before E ASTERBROOK

, H AMILTON

, and B RENNAN

, Circuit

Judges

.

B RENNAN

, Circuit Judge

. When the Federal Railroad Ad

‐

ministration put in place new regulations related to hearing,

a train conductor—who has been hearing

‐ impaired since

youth and has worn hearing aids for years—was caught in a

bind. He passed a hearing acuity test, but only when using

hearing aids without additional hearing protection.2 No. 19

‐ 2780

According to the railroad, this placed him in violation of a

policy which requires that protection be worn if the employee

is exposed to noise above a certain level. The railroad and the

conductor could not agree on an accommodation for him to

use other hearing devices. The railroad would not recertify

the conductor, and he lost his job.

The conductor sued arguing that the railroad discrimi

‐

nated against him because of his hearing disability. The dis

‐

trict court granted summary judgment to the railroad, fi nding

that the conductor “failed to marshal enough evidence for a

reasonable jury to conclude that he could ful fi ll the essential

functions of the train conductor position with a reasonable ac

‐

commodation.” We view the record di ff erently. Issues of fact

exist as to whether wearing hearing protection is an essential

function of the plainti ff ’s work as a conductor, as well as

whether reasonable accommodations for the conductor were

properly considered. So we reverse and remand for further

proceedings.

I

A. Factual Background

Mark Mlsna has experienced hearing loss since youth. Alt

‐ hough the precise cause is not known, at an early age he was

exposed to loud farming equipment. He began working as a

train conductor in the late 1990’s, and in 2006 he was hired by

Union Paci fi c. At that time, Mlsna had worn hearing aids for

more than 10 years. Union Paci fi c was aware of Mlsna’s hear

‐ ing impairment when he was hired.

In 2012 the Federal Railroad Administration implemented

regulations to ensure that train conductors possessed hearing

acuity, and to confirm that railroads appropriately protectedNo. 19

‐ 2780 3

and conserved their employees’ hearing. A grandfather

clause granted thirty

‐ six months after which Union Pacific re

‐ quired all conductors to comply with the hearing acuity reg

‐

ulation. 49 C.F.R. § 242.105(c). In February 2015 Union Pacific

had Mlsna’s hearing tested a number of different ways: with

hearing aids and without, using an amplified hearing protec

‐

tion device 1 called the “Pro Ears–Gold” with the sound

turned off, and using that device with the sound turned on.

Without his hearing aids and without hearing protection,

Mlsna did not pass the hearing acuity test. The results showed

that he “had an average loss of 65 decibels” in his better ear.

Mlsna also did not pass the audiological test using the Pro

Ears–Gold. Rather, he passed only when he relied on his hear

‐ ing aids with no additional hearing protection. Later Mlsna

was retested with the same results: he passed, but only while

wearing hearing aids without hearing protection.

After receiving the test results, Union Pacific decided it

could not recertify Mlsna to work as a conductor. When he

wore hearing aids and passed the hearing acuity requirement

he was in violation of Union Pacific’s hearing conservation

policy, which required additional hearing protection. And

when he complied with that policy by wearing the Pro Ears–

Gold, he could not pass the hearing acuity test.

To address this problem, Mlsna proposed he use a custom

‐

made hearing protection called the E.A.R. Primo. But Union

Pacific rejected his proposal because that device did not have

a factory

‐ issued or laboratory

‐ tested noise reduction rating,

as required by 49 C.F.R. Pt. 227 App. B. Union Pacific never

1 Such a device simultaneously amplifies safe noise and blocks harm

‐

ful and excessive noise.4 No. 19

‐ 2780

identified an alternative to the device it had suggested, the

Pro Ears–Gold. Union Pacific declined to recertify Mlsna as a

conductor and his employment was terminated.

B. Federal Railroad Administration regulations

To elucidate the parties’ dispute and their arguments,

more detail is necessary on the 2012 revisions to the Federal

Railroad Administration regulations. Under the hearing acu

‐ ity regulation, 49 C.F.R. § 242.117(i), all railroads must test the

hearing of their conductors. Each conductor must pass a hear

‐ ing test showing he or she “does not have an average hearing

loss in the better ear greater than 40 decibels with or without

the use of a hearing aid.” Id

.

Under the hearing protection regulation, 49 C.F.R.

§ 227.115, railroads must establish a hearing conservation pol

‐ icy with programs to protect the hearing of vulnerable em

‐ ployees. Subsection (d) of that regulation sets the default rule,

requiring employees wear hearing protection if they are ex

‐ posed to a time

‐ weighted average of 90 decibels or higher.

Subsection (c), with an 85

‐ decibel standard, applies only if no

audio test has been performed on an employee, or if that em

‐ ployee has experienced hearing loss while employed with the

railroad.

The hearing protection regulation sets a fl oor, not a ceiling.

49 C.F.R. § 227.1 (“This part prescribes minimum Federal

health and safety noise standards for locomotive cab occu

‐

pants. This part does not restrict a railroad

... from adopting

and enforcing additional or more stringent requirements.”).

Union Paci fi c set a stricter standard in its hearing conserva

‐

tion policy. All of its employees must wear hearing protection

if they “may be subjected to noise exposures equal to orNo. 19

‐ 2780 5

exceeding an 8

‐ hour time weighted average sound level of 85

decibels” or if they work “in identified hearing protection ar

‐

eas” or within 150 feet of a locomotive. The railroad also re

‐ quired all employees subject to its policy to wear a device

with a published noise reduction rating.

To measure decibel levels, railroads are required to

conduct either “area sampling,” which takes several noise

measurements at di ff erent locations within a workplace, or

“representative personal sampling,” which measures the ex

‐

posures of employees who operate similar equipment under

similar conditions. 49 C.F.R. § 227.103(b). The la tt er, which

Union Paci fi c employed, must be used where there are “cir

‐

cumstances such as high worker mobility, signi fi cant varia

‐

tions in sound level, or a signi fi cant component of impulse

noise.” Id

.

If the hearing protection regulation (§ 227.115(c) or (d)) ap

‐ plies, the employer “must select one of

... three methods by

which to estimate the adequacy of hearing protector a tt enua

‐

tion.” 49 C.F.R. Pt. 227 App. B. One of these methods requires

the employee to wear a device with a published noise reduc

‐

tion rating, which is a unit of measure to assess the e ff ective

‐

ness of hearing protection devices to decrease sound exposure

within a working environment.

C. Procedural Background

Back to this case: Mlsna sued Union Pacific, claiming the

railroad terminated him because of his hearing impairment

and so violated the Americans with Disability Act. 42 U.S.C.

§ 12101 et seq. Although Mlsna’s complaint characterized his

sole claim as for disparate treatment, that claim also contained

elements of a reasonable accommodation claim.6 No. 19

‐ 2780

A disparate treatment claim arises from ADA language

prohibiting covered entities from “limiting, segregating, or

classifying a job applicant or employee in a way that ad

‐ versely a ff ects the opportunities or status of such applicant or

employee.” 42 U.S.C. § 12112(b)(1). To prevail on a disparate

treatment claim, a plaintiff must show (1) he was disabled, (2)

he was quali fi ed to perform essential functions with or with

‐

out reasonable accommodation, and (3) his disability was the

“but for” cause of the adverse employment action. Scheidler v.

Indiana

, 914 F.3d 535, 541 (7th Cir. 2019).

A failure

‐ to

‐ accommodate claim is grounded in ADA lan

‐

guage de fi ning discrimination in part as “not making reason

‐

able accommodations to the known physical or mental limi

‐

tations of an otherwise quali fi ed individual.” 42 U.S.C.

§ 12112(b)(5)(A). To succeed on a reasonable accommodation

claim, a plainti ff must show (1) he was disabled, (2) his em

‐ ployer was aware of his disability, and (3) he was a quali fi ed

individual who, with or without reasonable accommodation,

could perform the essential functions of the employment po

‐

sition. Basith v. Cook Cty.

, 241 F.3d 919, 927 (7th Cir. 2001).

Whether Mlsna’s complaint is read as claiming disparate

treatment, as seeking a reasonable accommodation, or both,

these claims share the element that the plaintiff be able to per

‐

form the essential functions of the job with or without reason

‐

able accommodations. On that element, the district court

granted summary judgment to Union Pacific, concluding that

Mlsna failed to present evidence for a reasonable jury to find

that he could fulfill the essential functions of the train conduc

‐

tor position with a reasonable accommodation.

In considering whether Mlsna was a quali fi ed individual

able to perform essential functions, the district court ruledNo. 19

‐ 2780 7

that no jury could conclude that the railroad acted unreason

‐ ably in making the use of hearing protection an essential func

‐

tion of the conductor position. The court also decided that no

reasonable accommodation existed for Mlsna. While Mlsna

o ff ered the E.A.R. Primo as an accommodation, the court

decided that he had not presented evidence from which a rea

‐

sonable jury could conclude that Union Paci fi c’s stated rea

‐

son—the lack of a noise reduction rating—was pretext, or that

the E.A.R. Primo would permit him to ful fi ll the essential

functions of a conductor. So the district court found that the

railroad’s rejection of the E.A.R. Primo was reasonable. 2

Mlsna appeals. We “review summary judgment de novo,

and will affirm when—viewing the evidence in the light most

favorable to the nonmovant and drawing all reasonable infer

‐

ences in its favor—there is no genuine issue of material fact

and the movant is entitled to judgment as a matter of law.”

Scheidler, 914 F.3d at 540.

II

The parties do not dispute that Mlsna had the requisite

background, experience, and knowledge to work as a train

conductor. They also agree that his hearing impairment is a

qualifying disability under the ADA, and that his disability

was the reason he was not recertified to continue as a conduc

‐

tor. In dispute is whether Mlsna can perform the essential

functions of the position of train conductor with or without

reasonable accommodation.

2 Mlsna moved to reconsider these rulings, which the district court

denied.8 No. 19

‐ 2780

A. Essential Functions

When deciding whether a quali fi ed individual is able to

perform essential functions, “consideration shall be given to

the employer’s judgment as to what functions of a job are es

‐

sential, and if an employer has prepared a wri tt en description

... , this description shall be considered evidence of the essen

‐

tial functions of the job.” 42 U.S.C. § 12111(8). Federal labor

regulations de fi ne “essential functions” generally as “the fun

‐

damental job duties of the employment position the individ

‐

ual with a disability holds or desires.” 29 C.F.R. § 1630.2(n).

Those regulations give reasons why a function may be essen

‐

tial and list the types of evidence which may be considered to

determine if a function is essential. Id

.

The district court agreed with Union Paci fi c that wearing

hearing protection is an essential function of the train conduc

‐

tor position. In so concluding, the court considered various

pieces of evidence:

 the job description of conductor

 the requirement to use hearing protection if

exposed to an eight

‐ hour time weighted av

‐

erage of 90 decibels or more in 49 C.F.R.

§ 227.115(d);

 Union Paci fi c’s representative sampling

data, which the court said revealed a reason

‐

able likelihood that conductors will be ex

‐ posed to excessive noise;

 Mlsna’s amended complaint, in which he

stated “Train Crewm[e]n work in a noisy en

‐

vironment and are therefore required to

wear hearing protection;” andNo. 19

‐ 2780 9

 Mlsna’s deposition, in which he acknowl

‐ edged the importance that conductors wear

appropriate hearing protection.

“Whether a function is essential is a question of fact, not

law.” Tonyan v. Dunham’s Athleisure Corp.

, 966 F.3d 681, 687

(7th Cir. 2020) (citing Brown v. Smith

, 827 F.3d 609, 613 (7th

Cir. 2016)). “We usually do not ‘second

‐ guess the employer’s

judgment in describing the essential requirements for the job.’

But this deference is not unquali fi ed.” Id

. (quoting DePaoli v.

Abbo tt Labs.

, 140 F.3d 668, 674 (7th Cir. 1998). Our examination

of this record yields fact questions as to whether wearing

hearing protection is an essential function of Mlsna working

as a conductor.

Union Paci fi c’s job description for train crew includes the

position of conductor, and it lists essential job functions.

While a hearing acuity requirement is not included, some of

the functions do involve hearing. The job description includes

accountabilities (“[c]ommunicating clearly with co

‐ workers

and train dispatchers via radio”), preferred education, train

‐ ing, experience or skills (“[a]ctive [l]istening: [a] tt ending to

and understanding key pieces of spoken information”), and

work conditions (“[m]ust wear personal protection equip

‐

ment such as

... hearing protection where the company re

‐ quires.”) If the only evidence on this topic were the job de

‐ scription, the district court’s conclusion that wearing hearing

protection is an essential function of working as a conductor

would not be “second guessed.”

But the regulatory requirement to use hearing protection

exposes a factual dispute. The default rule under the hearing

protection regulation, 49 C.F.R. § 227.115(d), requires employ

‐

ees to wear hearing protection if they are exposed to a time

‐10 No. 19

‐ 2780

weighted average of 90 decibels or higher. On this standard,

the only evidence which shows the sound level that Union

Pacific conductors are exposed to is a dosimetry data set that

stretches back to 1980. 3 That data was collected using repre

‐

sentative personal sampling under 49 C.F.R. § 227.103(b)(2).

That dosimetry data shows that about 36% of the conductors

(62 of 172) were exposed to an 8

‐ hour time weighted average

of 85 decibels or greater, and about 13% (22 of 172) were ex

‐ posed to an 8

‐ hour time weighted average of 90 or more dec

‐

ibels.

Mlsna points out that “[t]he single most recent measure

‐

ment meeting or exceeding the 90

‐ decibel threshold was

taken in 2001.” According to Mlsna, all measurements taken

before 2007 should be disregarded because that year the

Federal Railroad Administration began mandating the use of

quieter locomotives. If Mlsna’s suggestion is followed, no

conductors in his position would be subject to an 8

‐ hour time

weighted average of 90 decibels or higher, and the hearing

protection regulation would not apply to him. Union Pacific

disagrees and recommends that the entire data set be consid

‐

ered instead of accepting Mlsna’s “novel theory” of reviewing

some but not all the data.

We decline to adopt Mlsna’s suggestion that the analysis

be limited to data after 2007. Doing so would require that a

3 A noise dosimeter is a specialized sound level meter that measures

a person’s exposure to noise over a period of time. It can be used to assess

compliance with health and safety regulations such as the occupational

noise exposure standard of the Occupational Safety and Health Act, 29

C.F.R. 1910.95. It measures and stores sound pressure levels and provides

a cumulative noise

‐ exposure reading for a given period of time, such as

an 8

‐ hour workday.No. 19

‐ 2780 11

bright line be drawn without the guidance of expert testi

‐

mony. Mlsna is correct, however, that much of the data Union

Pacific provided are not relevant, and reasonable inferences

from the data run in Mlsna’s favor as the nonmovant on

whether the hearing protection regulation applies to him.

Under the 90

‐ decibel threshold detailed in 49 C.F.R.

§ 227.115(d), railroads must “require the use of hearing pro

‐

tectors” only “when an employee is exposed to sound levels

equivalent to an 8

‐ hour [time weighted average] of 90 d(B)(A)

or greater.” (emphasis added). The term “is” in the regulation

must be read with a meaning it can bear. See A NTONIN S CALIA

& B RYAN A. G ARNER

, R EADING L AW : T HE I NTERPRETATION OF

L EGAL T EXTS 31 (2012). “Is” denotes the present tense. See Mer

‐

riam

‐ Webster Dictionary, Is

, https://www.merriam

‐ web

‐ ster.com/dictionary/is (last visited August 20, 2020); see also

Stanton v. Paul Revere Life Ins. Co.

, 37 F. Supp. 2d 1159, 1166

(S.D. Cal. 1999) (noting “is” as the present tense). The dosim

‐

etry data provided by Union Pacific are only relevant to the

extent they show whether conductors at the time of Mlsna’s

termination were exposed to a time

‐ weighted average of 90

decibels or higher. But “is” is not “was.” 4 Fourteen years

elapsed between the last data point showing a conductor for

Union Pacific was exposed to a time

‐ weighted average of

more than 90 decibels in 2001, and Union’s Pacific’s decision

to not recertify Mlsna in 2015. The data show no dangerous

noise levels to which Mlsna was exposed in his time as a con

‐

ductor. So a reasonable fact fi nder could conclude that if

4 While, for example, the Dictionary Act states “words used in the pre

‐

sent tense include the future tense as well as the present,” 1 U.S.C. § 1, it

does not state that words used in the present tense also include the past

tense.12 No. 19

‐ 2780

Mlsna was never exposed to that noise level, Union Paci fi c’s

more stringent policy of 85 decibels over the same time frame

does not mandate that Mlsna wear hearing protection.

While a bright line does not separate obsolete data points

from useful ones, the representative sampling dosimetry data

permit a reasonable jury to conclude that when Mlsna was

terminated in 2015, conductors working for Union Pacific

were not exposed to time

‐ weighted averages of 90 decibels or

higher. Simply put, a genuine fact issue exists as to whether

the data are a basis for the hearing conservation policy to ap

‐ ply to Mlsna. He was not even hired as a conductor by Union

Pacific until 2006, five years after the last data showing a con

‐

ductor for Union Pacific was exposed to a time

‐ weighted av

‐

erage of more than 90 decibels.

Mlsna argues that by including measurements from be

‐

fore 2000, the railroad places its thumb on the scale to present

dosimetry data falling within the regulation’s parameters.

Union Pacific calls this “historical monitoring,” which is done

to achieve statistical significance; that is, to show the data are

not due to random or chance events. But drawing all reason

‐

able inferences in Mlsna’s favor, Scheidler

, 914 F.3d at 540,

sampling that includes measurements from over 20 and 30

years ago is not “representative” of Mlsna’s noise exposure or

the exposures of other conductors who operate similar equip

‐

ment under similar conditions.

Mlsna’s pleading or deposition responses do not support

summary judgment for the railroad either. Mlsna’s admission

in his amended complaint that hearing protection is required,

and his deposition statement that hearing protection is im

‐

portant, just echo the Federal Railroad Authority regulations.

Even if those regulations capture the essential functions of theNo. 19

‐ 2780 13

conductor job generally, there are genuine issues of material

fact as to whether Union Pacific’s more stringent policy was

an essential function of Mlsna’s position.

A job function also may be considered essential because

“the position exists

... to perform that function.” 29 C.F.R.

§ 1630.2(n)(2)(i). But nobody would argue the reason the po

‐

sition of conductor exists is to wear hearing protection. A fact

question exists as to whether hearing protection was part of

serving as a conductor for Union Paci fi c. Mlsna testi fi ed that

while he worked as a conductor he wore his hearing aids

without earmu ff s or other hearing protection, and that he

never saw anybody else wear earmu ff s. His former supervi

‐

sor testi fi ed to the contrary, averring that Mlsna always wore

hearing protection when required. This fact dispute further

cuts against summary judgment for Union Paci fi c on this

topic.

The parties also dispute whether the essential function of

a conductor should be considered more narrowly—as

whether Mlsna met the hearing acuity standards while wear

‐ ing hearing protection. But if characterized that way, then the

grant of summary judgment to Union Paci fi c has even less

support. The district court concluded that meeting the hear

‐ ing acuity standards while wearing hearing protection was an

essential function of the conductor job. But the plain text of

the hearing acuity regulation does not mention wearing hear

‐ ing protection. Rather, the hearing test must show, without

quali fi cation, that “[t]he person does not have an average loss

in the be tt er ear greater than 40 decibels with or without the

use of a hearing aid, at 500 Hz, 1,000 Hz, and 2,000 Hz.” 49

C.F.R. § 242.117(i). If the hearing acuity regulation was meant

to require hearing protection, it could have said so, but it does14 No. 19

‐ 2780

not. See Russello v. United States

, 464 U.S. 16, 23 (1983)

(“[W]here Congress includes particular language in one sec

‐

tion of a statute but omits it in another

... it is generally pre

‐

sumed that Congress acts intentionally and purposely in the

disparate inclusion or exclusion.”)

This case presents a two

‐ edged problem. The regulations

require that conductors have hearing acuity, as well as that

their hearing be protected and conserved. But from this rec

‐

ord it does not appear that Union Pacific can test hearing acu

‐ ity under noisy working conditions. The railroad does not

have dosimetry data that encompass the generation of loco

‐

motives currently in use or a plaintiff such as Mlsna. So on

this record it does not follow as a matter of law that an essen

‐

tial function of Mlsna’s job as a conductor was to pass the

hearing acuity test while wearing compliant hearing protec

‐

tion.

Whether the essential function is defined as Mlsna wear

‐ ing hearing protection, or Mlsna passing the hearing test

while wearing hearing protection, the analysis leads to the

same conclusion: this record presents questions of fact.

B. Reasonable Accommodation

In addition to a claim of disparate treatment, Mlsna’s com

‐ plaint can be read as seeking a reasonable accommodation

from Union Pacific as to his hearing disability. Recall that

when Mlsna’s hearing was tested, one of the iterations in

‐

cluded him wearing an amplified hearing protection device

called the Pro Ears–Gold. Union Pacific did not identify any

alternatives to the Pro Ears–Gold. Mlsna proposed he use a

custom

‐ made hearing protection called the E.A.R. Primo. Un

‐

ion Pacific rejected his proposal because that device did notNo. 19

‐ 2780 15

have a factory

‐ issued or laboratory

‐ tested noise reduction rat

‐ ing, as required by 49 C.F.R. Pt. 227 App. B.

Federal labor regulations de fi ne “reasonable accommoda

‐

tion” as “[m]odi fi cations or adjustments to the work environ

‐

ment, or to the manner or circumstances under which the

position held

... is customarily performed, that enable an in

‐

dividual with a disability who is quali fi ed to perform the es

‐

sential functions of that position

... .” 29 C.F.R.

§ 1630.2(o)(1)(ii). The district court rejected Mlsna’s argument

that Union Pacific failed to reasonably accommodate his hear

‐ ing disability. The court concluded that the railroad’s rejec

‐

tion of the E.A.R. Primo was reasonable, and that Union

Pacific cannot be held responsible for the breakdown of the

“interactive process.” 5

This reasonable accommodation evaluation is affected by

the essential function analysis. As concluded above, fact

issues exist as to whether Mlsna was subject to the hearing

protection regulation, § 227.115. If it does not apply to Mlsna,

neither would the requirement that a device considered for

reasonable accommodation include a published noise reduc

‐

tion rating. That is, if Mlsna is not within the requirement of

§ 227.115(d), then the narrow a tt enuation rules of Pt. 227 App.

B. do not apply. This means that the reasonable accommoda

‐

tion assessment here was arti fi cially restrained. Curtailing the

5 The definition of “reasonable accommodation” includes: “To deter

‐

mine the appropriate reasonable accommodation it may be necessary for

the [employer] to initiate an informal, interactive process with the individ

‐

ual 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) (emphasis supplied).16 No. 19

‐ 2780

search was the conclusion that the hearing protection regula

‐

tion necessarily applied. Union Pacific rejected all devices

other than the Pro Ears–Gold, possibly based on an overly

‐

broad interpretation of the hearing protection regulation. Be

‐

cause Union Paci fi c doggedly insisted that the device it con

‐

sidered have a published noise reduction rating to determine

noise a tt enuation, the Pro Ears–Gold device was the only de

‐

vice the railroad considered. Without that constraint, Union

Paci fi c could o ff er more than just the Pro Ears–Gold device to

accommodate Mlsna, and a reasonable jury could fi nd that

Union Paci fi c could o ff er more than it did as a reasonable ac

‐

commodation.

Potential reasonable accommodations were not consid

‐

ered which could have permitted Mlsna to wear hearing pro

‐

tection while also meeting the requirements of the hearing

acuity regulation. There is no shortage of devices without

published noise reduction ratings which could be considered

as possible accommodations for Mlsna’s disability, whether

the E.A.R. Primo or others. Once an employee commences the

interactive process to fi nd a reasonable accommodation, em

‐ ployers have an “a ffi rmative obligation to seek the employee

out and work with her to craft a reasonable accommodation.”

EEOC v. Sears Roebuck & Co.

, 417 F.3d 789, 807 (7th Cir. 2005)

(citation and internal brackets omi tt ed). Viewing the evidence

in the light most favorable to Mlsna, if 49 C.F.R. § 227.115(d)

may not apply to him, then a material factual dispute exists

as to whether Union Paci fi c satis fi ed its duty to craft an ac

‐

commodation, and a reasonable jury could fi nd that Mlsna

may have been accommodated with other devices. Whether

Union Paci fi c ful fi lled its obligation to provide Mlsna with a

reasonable accommodation of his hearing disability can beNo. 19

‐ 2780 17

addressed on remand without the constraint that the accom

‐ modating device carry a published noise reduction rating.

The record reveals another fact question on this point. Un

‐

ion Paci fi c told Mlsna that it engaged in an “extensive search”

for adaptive devices, but discovery showed that no such

search occurred. The railroad’s director of disability manage

‐

ment asked others to look for other devices for Mlsna, but the

chief medical o ffi cer said he did not do so, and the senior man

‐

ager of industrial hygiene said he had no responsibility to

look for other devices. So after Union Paci fi c rejected Mlsna’s

proposal of the E.A.R. Primo, nobody at the railroad took any

additional steps to explore reasonable accommodations.

Because genuine issues of fact exist as to whether Union

Pacific reasonably accommodated Mlsna’s hearing disability,

Union Pacific should not have received summary judgment,

and this case should return to the district court for further

proceedings on this determination as well. On remand of the

reasonable accommodation evaluation, at least three topics

warrant consideration.

The first concerns the district court’s application of a pre

‐

text analysis in its reasonable accommodation evaluation.

Pretext is the third step in the three

‐ step burden shifting pro

‐

cess established in McDonnell Douglas Corp. v. Green

, 411 U.S.

792, 804–07 (1973). This Court has held that “the McDonnell

Douglas burden

‐ shifting method of proof is unnecessary and

inappropriate” in a failure

‐ to

‐ accommodate claim. Bultemeyer

v. Fort Wayne Cmty. Sch

., 100 F.3d 1281, 1283–84 (7th Cir. 1996);

see also Lenker v. Methodist Hosp.

, 210 F.3d 792, 799 (7th Cir.

2000) (“Because Lenker’s claim was based on reasonable ac

‐

commodation

... the district court was correct to reject

Lenker’s proposed pretext instruction.”); Weigel v. Target18 No. 19

‐ 2780

Stores

, 122 F.3d 461, 464 (7th Cir. 1997) (“[I]n failure to

accommodate claims the McDonnell Douglas framework is

‘unnecessary and inappropriate.’”). Instead, “if the plainti ff

demonstrated that the employer should have reasonably ac

‐

commodated the plainti ff ’s disability and did not, the em

‐ ployer has discriminated under the ADA and is liable.”

Lenker

, 210 F.3d at 799. While evidence of pretext may be rel

‐

evant in such a case, a pretext analysis need not be part of the

reasonable accommodation evaluation.

The second involves the railroad’s obligation to engage in

an interactive process with the disabled individual to deter

‐

mine an appropriate reasonable accommodation. During

such a process, the defendant employer must consider more

than just what the plaintiff employee proposes. EEOC v. Sears,

417 F.3d at 807 (noting an employer’s duty to work with em

‐ ployee to “craft a reasonable accommodation”). A proposed

accommodation is not limited to what the plaintiff introduced

into the process, here the E.A.R. Primo. Lawler v. Peoria Sch.

Dist. No. 150

, 837 F.3d 779, 786

‐ 787 (7th Cir. 2016) (employer

must do more than “s[i]t on its hands” when employee re

‐

quests accommodation). Union Pacific was obliged to do

more than just conclude that Mlsna’s proposal must fail be

‐

cause it is contrary to the railroad’s policy.

Third, the parties previously debated and the district court

ruled on the timeliness of a supplemental expert report Mlsna

submitted which referenced devices that would satisfy Union

Pacific’s hearing conservation policy. Given this remand, the

court and the parties have a new opportunity to review that

report and consider those other devices.

With these items noted, this case is returned to the district

court for further consideration.No. 19

‐ 2780 19

III

For the reasons above, the grant of summary judgment to

Union Pacific is R EVERSED and this case is R EMANDED for fur

‐

ther proceedings consistent with this opinion.