No. 11-2880 ____________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT ____________________________________________ TERRI BASDEN, Plaintiff/Appellant, v. PROFESSIONAL TRANSPORTATION, INC., Defendant/Appellee. ____________________________________________ On Appeal from the United States District Court for the Southern District of Indiana The Honorable William T. Lawrence ____________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF APPELLANT AND REVERSAL ____________________________________________ P. DAVID LOPEZ General Counsel CAROLYN L. WHEELER Acting Associate General Counsel DANIEL T. VAIL Acting Assistant General Counsel JULIE L. GANTZ Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St. N.E., 5th Floor Washington, D.C. 20507 (202) 663-4718 julie.gantz@eeoc.gov TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . ii STATEMENT OF INTEREST. . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE ISSUE. . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 PROCEEDINGS BELOW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 ARGUMENT The District Court Erred in Ruling That Basden was Not a "Qualified" Individual With a Disability. . . . . . . . . . . . . . . . . . . . . . . . . 11 A. A Reasonable Jury Could Find That PTI Could Have Provided Basden With a Reasonable Accommodation But Failed to Do So. . . . . . . . . . . 12 B. A Reasonable Jury Could Find That the Thirty-Day Leave of Absence Basden Requested to get Treatment for MS was a Reasonable Accommodation. . . . . . . . . . . . . . . . . . . . . . . . . . . 18 C. There is a Genuine Issue as to Whether Basden Could Have Been Accommodated Without Undue Hardship. . . . . . . . . . . . . . . . . . . . . . .27 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .29 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . 30 CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES Bultemeyer v. Fort Wayne Cmty. Schs., 100 F.3d 1281 (7th Cir. 1996). . . . .17, 22 Byrne v. Avon Prods., Inc., 328 F.3d 279 (7th Cir. 2003). . . . . . . . . . . . 18 Corder v. Lucent Techs., Inc., 162 F.3d 924 (7th Cir. 1998). . . . . . . . . 24 Criado v. IBM Corp., 145 F.3d 437 (1st Cir. 1998). . . . . . . . . . . . . . . 20 EEOC v. Humiston-Keeling, Inc., 227 F.3d 1024 (7th Cir. 2000). . . . . . . . . 23 EEOC v. Sears Roebuck & Co., 417 F.3d 789 (7th Cir. 2005). . . . . . . . . . . .13 EEOC v. Yellow Freight Sys., Inc., 253 F.3d 943 (7th Cir. 2001). . . . . . 23, 24 Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638 (1st Cir. 2000). . .22, 28 Gile v. United Air Lines, Inc., 213 F.3d 365 (7th Cir. 2000). . . . . . . . 14, 17 Haschmann v. Time Warner Entm't., 151 F.3d 591 (7th Cir. 1998). . . 16, 17, 19, 26 Hedberg v. Ind. Bell Tel. Co., 47 F.3d 928 (7th Cir. 1995). . . . . . . . . . . 16 Hendricks-Robinson v. Excel Corp., 154 F.3d 685 (7th Cir. 1998). . .15, 16, 17, 28 Kimbro v. Atlantic Richfield Co., 889 F.2d 869 (9th Cir. 1989). . . . . . . . . 20 Mays v. Principi, 301 F.3d 866 (7th Cir. 2002). . .. . .. . .. . .. . .. . .. . 16 Nowak v. St. Rita High Sch., 142 F.3d 999 (7th Cir. 1998). . .. . .. . .. . . 23 Taylor v. Phoenixville Sch. Dist., 184 F.3d 296 (3d Cir. 1999). . .. . .. . .. .25 U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002). . .. . .. . .. . .. . . 28 Waggoner v. Olin Corp., 169 F.3d 481 (7th Cir. 1999). . . . . . . . . . . . 21, 24 STATUTES Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. 42 U.S.C. § 12111(8). . . . . . . . . . . . . . . . . . . . . . . . . . 12 42 U.S.C. § 12111(9)(B). . . . . . . . . . . . . . . . . . . . . . . . 18 42 U.S.C. § 12112(b)(5)(A). . . . . . . . . . . . . . . . . . 13, 23, 27 RULES AND REGULATIONS 29 C.F.R. § 1630.2(n)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . 24 29 C.F.R. § 1630.4(a)(1)(v). . . . . . . . . . . . . . . . . . . . . . . . . . .18 29 C.F.R. pt. 1630, app. § 1630.2(o)(2)(ii). . . . . . . . . . . . . . . . . . 18 29 C.F.R. pt. 1630, app. § 1630.2(p). . . . . . . . . . . . . . . . . . . . . 27 29 C.F.R. pt. 1630, app. § 1630.9. . . . . . . . . . . . . . . . . . . . . . . .13 Fed. R. App. P. 29(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Fed. R. App. P. 32(a)(5). . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Fed. R. App. P. 32(a)(6). . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Fed. R. App. P. 32(a)(7)(B). . . . . . . . . . . . . . . . . . . . . . . . . . .31 OTHER AUTHORITIES EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship, No. 915.002 (Oct. 17, 2002). . . . . . . . . . .15, 18, 22, 24, 28 STATEMENT OF INTEREST The Equal Employment Opportunity Commission is the agency charged by Congress with the enforcement, interpretation, and administration of Title I of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101 et seq. This appeal involves the appropriate legal analysis and burdens of proof in an ADA failure-to- accommodate claim. The district court held that the plaintiff failed to offer sufficient evidence that the reasonable accommodation she requested-a thirty-day leave of absence to get treatment for her newly-diagnosed multiple sclerosis- would render her a "qualified" individual with a disability within the meaning of the ADA. If affirmed, the district court's interpretation of "qualified" would make many employees ineligible for leave to obtain medical treatment as a reasonable accommodation, and thus would limit the protection afforded by the ADA. Because of the importance of this issue to the Commission's effective enforcement of the ADA, we offer our views to the Court pursuant to Fed. R. App. P. 29(a). STATEMENT OF THE ISSUE Whether the district court erred in ruling as a matter of law that the plaintiff was not a "qualified" individual with a disability where a reasonable jury could find that the limited medical leave she sought was a reasonable accommodation that would have enabled her to perform the essential functions of her job. STATEMENT OF FACTS Terri Basden began working as a dispatcher at the defendant's Evansville, Indiana, Dispatch Center on June 29, 2007. Appendix ("A.") 233 (I-Basden- Dep.36). Basden was responsible for dispatching drivers and coordinating the ground transportation for Professional Transportation, Inc.'s ("PTI") railroad customers. A.320. Basden testified that she also performed the job of a "closer," which was similar to the dispatcher job but required more typing. A.314 (II- Basden-Dep.47). Because the dispatch center operates seven days a week, twenty-four hours a day throughout the year, PTI considers regular attendance extremely important. A.143-44 (Acuff-Decl.-¶ 5). Dispatchers are subject to a supplemental attendance policy ("SAP"), a progressive no-fault discipline policy applied to accumulated "incidents" of employee absences from work. A.269 (SAP-2). An "incident" occurs when an employee misses more than four hours of one shift or multiple shifts for the same reason, such as illness. Id. Employees are given a verbal warning, written warning, three-day suspension, and are ultimately terminated after eight incidents in one year. A.269-70 (SAP-2-3). In the eleven months Basden worked for PTI, she missed a total of twenty days of work and was terminated after her eighth "incident" in May of 2008. A.146 (Acuff-Decl.-¶ 18). The majority of Basden's absences resulted from symptoms of what turned out to be MS. A.242 (I-Basden-Dep.134). In January 2008, Basden fell at home after suffering from dizziness and was treated at a hospital emergency room. A.232 (I-Basden-Dep.30-31). She submitted the following note to PTI from the treating physician: "Call for MRI of brain follow up with a neurologist. Take prednisone as directed. Return for increase dizzy or increase falls." A.325. She was absent from work January 14-17, her third incident of absenteeism for the relevant period. A.146 (Acuff-Decl.-¶ 18(c)). (The record does not reveal the causes of her first two incidents.) Basden suffered another dizzy spell February 1, 2008, which caused her to miss work that day, her fourth incident. A.311 (II- Basden-Dep.28); A.326 (emergency room note); A.146 (Acuff-Decl.-¶ 18(d)). A CAT scan suggested she might have multiple sclerosis. A.310 (II-Basden-Dep.16). She submitted a doctor's note to PTI that said she had been seen at the emergency room and should "make an appointment to see neurologist." A.327. Approximately six weeks later, Basden was treated for dizziness and nausea. A.311 (II-Basden-Dep.27). She was absent from work March 13-15, 2008, and received a verbal reprimand for a fifth incident. A.242 (I-Basden-Dep.135); A.346 (Record of Employee Counseling). Basden's neurologist ordered a spinal tap for March 25, 2008. A.311 (II-Basden-Dep.28). Basden submitted the procedure discharge instructions to PTI, entitled "Lumbar puncture/Myelogram Discharge Instructions," with the procedure date. A.329. She also submitted a doctor's note stating that she "had a procedure at Gateway Hospital and should not return to work til Thursday 3/27/08." A.330. Based on the spinal tap results, Basden's neurologist tentatively diagnosed her with MS, but referred her to a specialist for a definitive diagnosis. A.233 (I-Basden-Dep.34). She was unable to obtain an appointment with the specialist until June 23, 2008. A.32 (I-Basden-Dep.25). Sometime between February and March 2008, Basden asked to be allowed to perform dispatcher duties rather than closer duties because the dispatcher job required less typing. A.314 (II-Basden-Dep.47-48). She testified, "I was having problems with [numbness and tingling] when I worked at PTI, especially when they had me closing 'cause the repetitive [sic], you know. And it'd get to where I couldn't even feel my fingers hitting the keyboard." A.234 (I-Basden-Dep.48). Although Dispatch Manager George Acuff testified that the company allowed her to be a dispatcher instead of a closer (A.258), Basden testified that she was only sporadically allowed to work as a dispatcher. A.314 (II-Basden-Dep.48). Also in March 2008, Basden requested to be moved to a part-time dispatcher position because her MS symptoms made it difficult to work full-time. A.312 (II- Basden-Dep.33-35). A newly-hired employee was placed in the part-time slot instead of Basden. A.312 (II-Basden-Dep.33-34). After suffering from dizziness in April, Basden submitted the following note from her doctor to PTI: "Due to dizziness & work-up for MS, excuse Ms. Basden from work: 4/7/08, 4/8/08, 4/11/08 to present. Please excuse her until she is again seen by a neurologist. She has a tentative appointment with Dr. Francis on 4/29/08 but this may change." A.331. The April absences constituted her sixth incident and resulted in a written reprimand. A.344 (Record of Employee Counseling); A.146 (Acuff-Decl.-¶ 18(f)). On April 30, 2008, Basden's doctor faxed a note to Assistant Dispatch Manager Teresa Kirk that stated: "Pt. Terri Basden may work 20 hrs per wk - starting 05/01/08 + no more than 5 hrs per day." A.332. After that, she was allowed to work part-time beginning May 1, 2008. A.312 (II- Basden-Dep.33-34). Basden also testified that in addition to periods of dizziness, she suffered fatigue, numbness in her fingers, problems walking, vision problems, and heat intolerance. A.234 (I-Basden-Dep.47-48). Basden testified that she "tried my best to keep working even though I was having all these problems." A.86 (I-Basden- Dep.139). Basden testified that "[e]verybody I worked with knew" about her health condition. A.241 (I-Basden-Dep.115). She testified that she told Kirk, Acuff, and Shift Supervisor John Davis "that the doctor felt like that I had MS, that he wanted me to see a specialist to confirm what he believed; and, ... I told them up front that that's what was going on." A.241 (I-Basden-Dep.114-15). Basden testified that she submitted doctor's notes for all absences beginning in January 2008. A.242 (I-Basden-Dep.134). According to Kirk, medical excuses go to the shift supervisor, to Kirk, then to the payroll department, and are then placed in the employee's personnel file. A.298, 299 (Kirk-Dep.66, 67). Basden testified that her shift supervisor saw the doctor's notes she submitted following absences, knew she was being tested for MS, "and then later on he knew that the doctor was pretty confident that I had MS." A.240 (I-Basden-Dep.105). Human Resources Manager Steven Greulich stated in a declaration that he knew Basden "was experiencing health problems that were being investigated and possibly were related to MS."<1> A.172 (Greulich-Decl.-¶ 20). Basden's symptoms of MS worsened in May, causing her to miss shifts even after she was assigned a part-time schedule. A.312, 313 (II-Basden-Dep.36, 42- 43). The last day she worked at the dispatch center was May 20, 2008. A.243 (I- Basden-Dep.137); A.300 (Kirk-Dep.68). According to HR Manager Greulich, Basden told him that she "was having attendance issues, and she thought that it might be for MS" and "she had further meetings with a doctor in the next few months ... and wondered how she might deal with that" and recalled that "she said that she wanted to keep her job." A.447 (Greulich-Dep.20). Greulich testified that he told her that she did not qualify for "any sort of leave," but that "when you get this all worked out, whatever it is, so that you don't-won't have an attendance problem, that you could come back on-on good terms." Id. Basden testified that payroll employee David Wilson suggested that she file for a thirty-day personal leave of absence and gave her the appropriate form to request the leave. A.239 (I-Basden-Dep.89-90). PTI's policy states: "A regular full-time employee who has completed at least one year of service with the Company may request an unpaid leave of absence for a period of up to 30 days. A leave extension may be requested for additional 30-day periods up to a maximum total of 90 days. A request for leave or an extension must be submitted in writing at least two weeks in advance, unless necessitated by an emergency, in which case oral notification should be followed by written application for the leave. Leave may be granted solely at the Company's discretion, provided the leave does not seriously disrupt the Company's operations." A.180-81. Basden was scheduled to work on May 22, but did not come in, prompting Kirk to issue a suspension notice for her seventh "incident." A.146 (Acuff-Decl.- ¶ 18(g)). Although Basden also was unable to work on May 23 due to MS symptoms, she came in to request a thirty-day unpaid leave of absence. A.242 (I- Basden-Dep.136). Basden testified that "I had been having more problems with dizziness and, ... fatigue.... [S]o that's why I went to talk to human resources, 'cause I told them I was concerned. I was really close to my one-year anniversary. I didn't want to lose my job. You know, was there anything I could do." A.313 (II-Basden-Dep.42-43). She testified that "I was asking basically for 30 days just 'cause it would've been from then to when I went to my MS specialist, 'cause as soon as I was able to see my MS specialist, I knew I was going to be able to get the medicine for the MS.... Dr. Francis already told me that I had it, but he just wanted to have [Dr. Hashemi] confirm it because he didn't consider himself an MS specialist.... " A.316 (II-Basden-Dep.53). On the application form, she specified that the leave was needed because of "complications due to medical illness (MS)." A.107. Basden testified that, because she was only a month short of the twelve- month leave needed to qualify for the company's thirty-day leave policy, she thought that PTI might agree to the leave. A.313 (II-Basden-Dep.42). Dispatch Manager Acuff testified that he received Basden's leave request Monday, May 26, and mailed out a denial the following day. A.261 (I-Acuff- Dep.43). Acuff denied Basden's leave request because she had not yet been a PTI employee for one year and was not eligible. A.260 (Acuff-Dep.42). Acuff testified that he was aware Basden was requesting leave because of "complications due to medical illness (MS)." Id. He stated in a declaration that on the day Basden submitted the leave request, "I did not see her, and I did not advise her or encourage her to apply for a leave of absence. An employee requesting an unpaid leave of absence is required to continue working until the leave request is reviewed." A.145 (Acuff-Decl.-¶ 14). Acuff testified that he did not consult anyone from human resources or Basden's doctors, nor request more information from Basden before denying her request. A.260-61 (Acuff-Dep.42, 43). Kirk testified that Basden was suspended May 23-25, 2008, and should have come to work on May 26. A.516 (Kirk-Dep.69). That day, Basden did not report for work or call in sick. A.162 (Kirk-Decl.-¶ 18(h)). When Basden received the denial of her leave request on May 27, she called Acuff and "told him that I would go ahead and try to continue working, and that's when he told me I was terminated." A.239 (I-Basden-Dep.92). Kirk testified that she was terminated for having an eighth incident of absenteeism. A.295 (Kirk-Dep.58). Acuff clarified in his declaration that Basden was "terminated solely because, and for no other reason, of excessive absenteeism in violation of PTI's attendance policies and the attendance policies of the United Companies." A.147 (Acuff-Decl.-¶ 22). Basden's MS specialist confirmed her probable MS diagnosis on June 23, 2008. A.244 (I-Basden-Dep.142). About a week later, Basden started taking an injectible medication, Rebif, three times a week. A.236 (I-Basden-Dep.53). She testified that the medication has improved her condition: "I had to get the actual official diagnosis before I could get put on the medicine.... And I think that's made a big difference. That's what I tried to explain to them. That's why I filled out that request for a leave of absence, because ... I just wanted to get through it 'til I could get to the MS specialist, get put on the medicine, and then I felt like I would've been okay ...." A.235-36 (I-Basden-Dep.52-53). PROCEEDINGS BELOW Basden filed suit on January 4, 2010, alleging (among other claims) that PTI failed to accommodate her disability and terminated her without engaging in the interactive process required by the ADA. A.17, 19-20 (Complaint at 1, 3-4). PTI moved for summary judgment on January 7, 2011. A.183. The district court granted the motion and dismissed the case. A.13-14 (Entry on Defendant's Motion for Summary Judgment ("Op.") 7-8). The court held that Basden was an individual with a disability within the meaning of the ADA "because of the MS symptoms she was experiencing." A.12 (Op. 6). However, the court emphasized that "PTI considered good attendance to be essential to the dispatcher position held by Basden, and PTI made that fact clear in the SAP." A.14 (Op. 8). The court acknowledged that "a leave of absence can, in certain circumstances, be a reasonable accommodation under the ADA," but determined that "even assuming that the 30-day leave of absence she requested was a reasonable accommodation, she had presented no evidence that demonstrates that she would have been able to return to work and perform the essential functions of her job after thirty days." Id. The court pointed out that Basden did not begin taking medication to alleviate her MS symptoms until July 2008, over thirty days from her termination, and "the record is silent with regard to how long it took for Basden to see improvement from the medication such that she was able to return to work." Id. In the court's view, "[t]he record does not contain any evidence about Basden's ability to return to work and perform the essential functions of her job- including regular attendance-following the 30-day leave of absence she requested. Therefore there is no evidence from which a reasonable jury could conclude that Basden was a qualified individual with a disability at the time of her termination." A.15 (Op. 9). ARGUMENT The District Court Erred in Ruling that Basden was Not a "Qualified" Individual With a Disability. The district court erred in ruling as a matter of law that Basden was not "qualified" under the ADA at the time she requested a 30-day leave of absence for treatment for her MS. Even where regular attendance is an important job requirement, an employee who is unable to work for a limited duration because she needs treatment for a newly-diagnosed disability can still be a qualified individual with a disability. Here, PTI, which knew Basden suffered from MS, summarily denied Basden's reasonable request for a short-term medical leave, and then fired her for violating the company's no-fault progressive disciplinary leave rules. It did so without discussing the basis for Basden's leave request, seeking additional information about her condition, or exploring any possible alternative accommodations that may have enabled her to perform the essential functions of her job. The district court did not address PTI's failure to engage in an "interactive process" to determine an appropriate reasonable accommodation for Basden. Nor did the court acknowledge that it was PTI's burden to prove that granting the leave Basden requested would impose an undue hardship on PTI's business operations. Instead, the district court imposed an overly stringent evidentiary burden on Basden to prove the efficacy of her requested accommodation, faulting her for failing to prove that she would have been able to return to work after a 30-day leave. These errors require reversal. A. A Reasonable Jury Could Find That PTI Could Have Provided Basden With a Reasonable Accommodation But Failed to Do So. A "qualified" individual for purposes of the ADA is 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 ADA requires employers to provide reasonable accommodations to enable employees to become or remain "qualified" (absent undue hardship). See 42 U.S.C. § 12112(b)(5)(A). There is no dispute here that Basden's MS was a disability within the meaning of the ADA. The issue is whether Basden was able to perform the essential functions of her part-time dispatcher job with a reasonable accommodation and whether PTI violated the ADA by failing to provide Basden an accommodation that would have enabled her to remain "qualified." A subsidiary issue the district court did not address is whether Basden's request for a medical leave triggered PTI's duty to engage in an "interactive process" designed to discover appropriate reasonable accommodations. "Once an individual with a disability has requested provision of a reasonable accommodation, the employer must make a reasonable effort to determine the appropriate accommodation. The appropriate reasonable accommodation is best determined through a flexible, interactive process that involves both the employer and the individual with a disability." 29 C.F.R. pt. 1630, app. § 1630.9; see also EEOC v. Sears Roebuck & Co., 417 F.3d 789, 805 (7th Cir. 2005) ("After an employee's initial disclosure, the ADA obligates the employer to engage with the employee in an interactive process to determine the appropriate accommodation under the circumstances.") (internal citations omitted). The ADA imposes an affirmative obligation on employers "to seek ... out [an employee with a known disability] and work with her to craft a reasonable accommodation if possible." Gile v. United Air Lines, Inc., 213 F.3d 365, 373 (7th Cir. 2000). PTI argued to the district court that it did not know Basden had MS or needed the leave for treatment of MS, and thus blamed her for the lack of any interactive process. See A.200 (Def. Mem. in Support of Summary Judgment at 18); A.494 (Def. Reply at 16). However, the record belies these assertions. By April 2008, the doctor's notes Basden had provided to PTI (which are in her personnel file) revealed that she had been having problems with dizziness, was referred to a neurologist, underwent a spinal tap, and was undergoing a "work-up for MS."<2> A.325, 326, 327, 329-30, 331. She testified that "[e]verybody [she] worked with knew" about her health problems and that she told her shift supervisor and dispatch managers "up front" "that the doctor felt like that [she] had MS, [and] that he wanted me to see a specialist to confirm what he believed." A.240, 241. Basden told HR Manager Greulich that she was having attendance issues because of MS, that she had an upcoming doctor's appointment for it, and that she wanted to keep her job. A.447. Greulich knew Basden "was experiencing health problems that were being investigated and possibly were related to MS." A.172 (Greulich- Decl.-¶ 20). Basden's application for a leave of absence specified "complications due to medical illness (MS)." A.107. Perhaps most importantly, Acuff testified that he was aware Basden was requesting leave because of "complications due to medical illness (MS)." A.260. Thus, at least as of the time she requested thirty days' leave, Basden had triggered PTI's duty to engage in the interactive process.<3> Nevertheless, it appears that no official from PTI considered working with Basden to explore the possibility of accommodating her disability. Instead, PTI fired her immediately after she made the thirty-day leave request. Acuff admitted that he did not consult anyone from human resources or Basden's doctors, or request more information from Basden before denying her request. A.260-61. Greulich told her that if she left on good terms, he might rehire her once she had worked out her medical problems. A.447. Thus, the company's abrupt termination of Basden cut off the interactive process before it began, thereby denying Basden the reasonable accommodation to which she arguably was entitled. See Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 693 (7th Cir. 1998) ("[A]n employee begins the accommodation process by informing his employer of his disability; at that point, an employer's liability is triggered for failure to provide accommodations.") (internal citation omitted). An employer refuses to engage in the interactive process at its own peril where, as here, a reasonable accommodation could have been provided unless providing it would impose an undue hardship. Where a reasonable accommodation existed and the plaintiff "failed to obtain it because the employer had not consulted her in order that 'together they can identify the employee's needs and discuss accommodation options,' the fault in the failure to make the accommodation available would be the employer's and he would lose." Mays v. Principi, 301 F.3d 866, 870 (7th Cir. 2002) (internal citation omitted); see also Hedberg v. Ind. Bell Tel. Co., 47 F.3d 928, 934 (7th Cir. 1995) (explaining that "deliberate ignorance" regarding employee's disability may not insulate an employer from liability under the ADA). This case is quite similar to the situation in Haschmann v. Time Warner Entertainment Co., where the defendant did not contact the plaintiff's doctors "to discuss her condition and the length of leave she needed," or ask "an independent physician to evaluate her prognosis and the reasonableness of her request for leave." 151 F.3d 591, 601 (7th Cir. 1998). Similarly here, PTI made no effort to obtain additional information about Basden's illness. "Instead, [PTI] decided summarily to fire Ms. [Basden] and now asserts that no accommodation could have been reasonable." See id. at 601. As in Haschmann, "[t]he record does not reflect any interaction; the only reciprocal response by [the defendant] was a termination notice." Id.; see also Gile, 213 F.3d at 373 (holding that the defendant "flunked its obligations under the ADA" where, in the face of the plaintiff's request for accommodation, it "refused her request for a modest accommodation, then did nothing to engage with [the plaintiff] in determining alternative accommodations that might permit [her] to continue working"; and the company's medical director "provided no help at all except to suggest that [she] 'just resign and stay home'"); Bultemeyer v. Fort Wayne Cmty. Schs., 100 F.3d 1281, 1285 (7th Cir. 1996) (explaining that the plaintiff "may have been qualified," but the "defendant simply did not give him the chance to demonstrate this.... [W]e do not know what might have happened, because [the defendant] was unwilling to engage in the interactive process and accommodate him."). The district court failed to recognize that PTI's failure to engage in the interactive process itself was a ground for denying its motion for summary judgment, where, as here, there appears to be a genuine question of material fact as to whether reasonable accommodation without undue hardship to PTI was possible. See Hendricks-Robinson, 154 F.3d at 700 (where plaintiffs alleged that the employer's failure to engage in an interactive process resulted in a failure to provide an appropriate accommodation, there were "genuine issues of material fact concerning the lack of interaction in this case that preclude summary judgment"). B. A Reasonable Jury Could Find That the Thirty-Day Leave of Absence Basden Requested to get Treatment for MS was a Reasonable Accommodation. On this record, a reasonable jury could find that the accommodation Basden requested was reasonable. The ADA provides that a "reasonable accommodation" may include "job restructuring, part-time or modified work schedules ... and other similar accommodations for individuals with disabilities." 42 U.S.C. § 12111(9)(B); see also 29 C.F.R. pt. 1630 app. § 1630.2(o)(2)(ii). It is well- settled that a leave of absence of a limited duration can be such a reasonable accommodation. See EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship, No. 915.002 (Oct. 17, 2002), at "Leave" (text before Question 17), available at http://www.eeoc.gov/policy/docs/accommodation.html ("Permitting the use of accrued paid leave, or unpaid leave, is a form of reasonable accommodation when necessitated by an employee's disability."); Byrne v. Avon Prods., Inc., 328 F.3d 379, 381 (7th Cir. 2003) ("Time off may be an apt accommodation for intermittent conditions" such as arthritis or lupus.); cf. 29 C.F.R. § 1630.4(a)(1)(v) (Discrimination prohibited under the ADA includes discriminating in regard to leaves of absence, sick leave, or any other leave.). The thirty-day leave of absence Basden sought falls comfortably within the length of time courts have recognized to be "reasonable." Indeed, this Court in Haschmann has already held that two successive medical leaves of two to four weeks were reasonable in a case involving lupus, a disease with intermittent symptoms similar to MS. See Haschmann, 151 F.3d at 602. Thus, on this record, a reasonable jury could find that the short medical leave Basden needed to get treatment for her newly-diagnosed MS was a reasonable accommodation. The district court concluded that, even if the thirty-day leave was a reasonable accommodation, Basden still was not a "qualified" individual with a disability. The court's holding was based on its conclusion that Basden offered no evidence that she would be able to perform the dispatcher job by the end of the thirty-day leave she requested. See A.14 (Op. 8). It appears the court concluded that while the leave might have been feasible, it would not be effective in allowing Basden to perform the essential functions of her job. However, in reaching this conclusion, the court overlooked record evidence and placed an inappropriately high burden on Basden to prove that her suggested accommodation would be effective. This result cannot be reconciled with the ADA's reasonable accommodation requirement. Basden's burden to show she was "qualified" was a modest one. An employee seeking leave to obtain treatment for a disability is not required to demonstrate that the proposed treatment will "cure" her within the time period requested, for example, or eliminate the need for all future similar accommodations. Rather, to prove that she is qualified, an employee need show simply that it is likely that she will be able to resume performing the essential functions of her job at or near the end of the leave of absence she requested. See Kimbro v. Atlantic Richfield Co., 889 F.2d 869, 878-79 (9th Cir. 1989) (holding that uncertainty of effective treatment because of lack of established treatment program for a disability did not establish unreasonableness of leave as an accommodation when there were plausible reasons to believe that successful treatment could occur). Here, there was sufficient evidence to support a finding that Basden would see an MS specialist and begin a medication regimen to treat her MS symptoms and that she expected to return to work at the end of (or at least relatively close to) the thirty-day leave period sought. Basden thus adduced sufficient evidence to support a reasonable jury finding that she was a qualified individual with a disability. See, e.g., Criado v. IBM Corp., 145 F.3d 437, 443, 444 (1st Cir. 1998) (plaintiff presented evidence that obtaining medical treatment "might return her to her previous level of functionality" and the leave sought was reasonable where evidence "tend[ed] to show that her leave would be temporary and would allow her physician to design an effective treatment program"). In ruling that Basden presented "no evidence that demonstrates that she would have been able to return to work and perform the essential functions of her job after thirty days[,]" (A.14) the district court ignored Basden's testimony that she told the company's HR manager and her supervisors about her medical situation and the tests she had undergone, and that she needed the leave to meet with the MS specialist, get confirmation of the MS diagnosis, and begin a course of treatment at that point. See Waggoner v. Olin Corp., 169 F.3d 481, 485 (7th Cir. 1999) (suggesting that if the plaintiff had "indicate[d] that she was requesting a leave so that she would have time to refine the dosage of her medication so that she could return to work on a regular basis" her request for accommodation might have been reasonable). The district court likewise disregarded evidence demonstrating that Basden missed only sixteen days of work in the five months she was experiencing MS symptoms, and her testimony that she "tried my best to keep working even though I was having all these problems." A.86. These facts would enable a reasonable jury to find that Basden was highly motivated to seek treatment and return to work as quickly as possible. A reasonable jury also could find that the fact that she had missed only approximately sixteen days over five months before obtaining MS treatment strongly suggested that beginning treatment would have reduced her absences going forward. Indeed, Basden testified that it would. The district court pointed out that Basden did not end up taking the MS drug until July 2008, more than thirty days from when she requested the leave. The court apparently thought that because more than thirty days of leave ultimately may have been required, Basden could not have been qualified and PTI thus was relieved from its obligation to provide a reasonable accommodation. But it is rare for an employee with a newly-diagnosed, serious illness to know precisely how much leave will be needed to seek treatment. See EEOC Guidance, at Question 44 ("Treatment and recuperation do not always permit exact timetables. Thus, an employer cannot claim undue hardship solely because an employee can provide only an approximate date of return."); Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 648 (1st Cir. 2000) ("Some employees, by the nature of their disability, are unable to provide an absolutely assured time for their return to employment, but that does not necessarily make a request for leave to a particular date indefinite."). Thus, the fact that Basden may not have been able to return to work after the thirty days she requested cannot excuse PTI's failure to provide the original leave of absence requested. Moreover, "[t]he duty to provide a reasonable accommodation is an ongoing one." EEOC Guidance, at Question 32; see also Bultemeyer, 100 F.3d at 1285 (school district could not deny disabled janitor additional accommodations at new school placement). It often requires a degree of experimentation before an ultimate solution is found. Cf. EEOC v. Humiston-Keeling, Inc., 227 F.3d 1024, 1026 (7th Cir. 2000) (noting that employer should not be penalized for offering an accommodation that did not work immediately where the accommodation was "a failed experiment, undertaken in good faith ... and not obviously doomed to fail from the start"). Thus, even if Basden had returned at or near the end of her thirty days of requested leave, it is conceivable that in the future she may have needed additional accommodations (in the form of additional leave or otherwise). Absent PTI's demonstration of undue hardship, the company would be obligated to continue working with Basden to identify and provide appropriate reasonable accommodations. The district court erred in failing to recognize this basic statutory obligation that the ADA imposes on employers. See 42 U.S.C. § 12112(b)(5)(A) ("discriminate" includes "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability...."). The district court noted that PTI considered "regular attendance" to be essential to the dispatcher job. This Court has held that "regular attendance is usually an essential function in most every employment setting." See, e.g., EEOC v. Yellow Freight Sys., Inc., 253 F.3d 943, 949 (7th Cir. 2001).<4> This Court has also held that "[t]he ADA does not require an employer to accommodate an employee who suffers a prolonged illness by allowing him an indefinite leave of absence." Nowak v. St. Rita High Sch., 142 F.3d 999, 1004 (7th Cir. 1998); see also Waggoner, 169 F.3d at 484 ("[I]n most instances the ADA does not protect persons who have erratic, unexplained absences, even when those absences are a result of a disability."). But these cases do not compel the conclusion that, as a matter of law, Basden's need for a leave of absence was unreasonable, or that she was not "qualified." This Court has found requests for leave to be unreasonable in cases involving requests for lengthy, indefinite leaves of absence and/or requests to return to work with the expectation of additional erratic "as needed" leave. See Nowak, 142 F.3d at 1004 (teacher who was absent eighteen months over course of three school years for recovery from heart, back, and leg surgeries and who failed to tell any school administrator when he planned to return was not qualified and not entitled to additional leave); Corder v. Lucent Techs., Inc., 162 F. 3d 924, 926- 27 (7th Cir. 1998) (employee suffering from severe depression was not a qualified individual with a disability where she missed nearly 18 months of work in a three year period and requested an "unpredictable amount of time off from work should her symptoms so demand" upon her return); Yellow Freight, 253 F.3d at 950 (plaintiff was not qualified where defendant offered the employee a ninety-day leave of absence, which he refused to accept, and instead countered with a request for open-ended, unlimited sick leave without penalty). The holdings in these cases are based on the premise that it is inherently unreasonable to expect an employer to accommodate an employee who does not know from one day to the next whether he or she will be able to work. To the extent the district court was motivated by a similar concern in this case, its concern was misplaced. Here, PTI knew that Basden would be out for roughly one month to begin treatment to alleviate her MS symptoms so that she would be able to return to her part-time position and resume coming to work on a regular basis. Basden testified that she was confident that as soon as she received treatment for her MS, her condition would stabilize. PTI could have asked Basden or her doctors for additional information substantiating a need for thirty days' leave and/or confirming that such a leave of absence would be effective in allowing her to resume the essential functions of her job. See Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 314 (3d Cir. 1999) (it was "incumbent" on defendant, which knew of the plaintiff's desire for an accommodation, to request "further information" if needed to "justify an accommodation"). PTI failed to do so. This is not a case involving sporadic, unpredictable, indefinite, or excessive leave. Basden's situation is far more comparable to the plaintiff's in Haschmann. There, Time Warner granted the plaintiff, a Vice President for Finance, a two to four week leave of absence to receive treatment for symptoms related to lupus, a disease with periods of dormancy and periods of "flare," when she experienced vision problems, memory and concentration problems, muscle weakness, and dizziness. See 151 F.3d at 595. When Haschmann relapsed soon after her return to work and attempted to take a second two- to four-week leave of absence, Time Warner fired her. Id. In upholding the jury's finding of liability and damages for violations of the ADA, this Court held that "there was a reasonable basis in the evidence for the jury to conclude that Ms. Haschmann was a qualified individual suffering from lupus who was able to perform her job adequately without accommodation until September 21, 1995, and who sought accommodation of medical leave after that time." Id. at 600. This Court rejected the defendant's assertion that because no accommodation was possible, the plaintiff was not qualified, noting that the leave sought was for a short time, not unlimited, and the plaintiff's doctor testified that he was optimistic that the flares would be short- lived. See id. As this Court explained, "it is not the absence itself but rather the excessive frequency of an employee's absences in relation to that employee's job responsibilities that may lead to a finding that an employee is unable to perform the duties of his job." Id. at 602. C. There is a Genuine Issue as to Whether Basden Could Have Been Accommodated Without Undue Hardship. There is also a genuine question of material fact as to whether the accommodation requested would have resulted in undue hardship for PTI, a defense it would have the burden of proving. 42 U.S.C. § 12112(b)(5)(A); 29 C.F.R. pt. 1630, app. § 1630.2(p). The district court effectively ruled that Basden was not qualified because she failed to prove that after thirty days she would have been able to resume working. But in doing so, the district court got it backwards, imposing an inappropriate evidentiary burden on the plaintiff and relieving the defendant of its statutory obligation to prove undue hardship. PTI offered no evidence that allowing Basden a limited leave of absence would have harmed its business operations. Basden was in a part-time dispatcher position at the time of her termination, requiring fewer hours to be covered by other employees. She did not expect to be paid during the thirty-day leave she requested. Moreover, the record reflects that PTI has a formal policy through which it allows its employees to take personal leaves of absence for medical reasons after they have been with the company for one year. Under the policy, the initial thirty-day leave may be extended twice, for up to a total of ninety days of leave. Based on these facts, there is a genuine question of material fact as to whether Basden's request for leave would have resulted in undue hardship for PTI. It bears emphasizing that PTI would not be able to establish undue hardship as a matter of law simply by showing that accommodating Basden would have required the company to make exceptions to its universally applied no-fault progressive attendance policy, or to its general rule that employees must be with the company for one year before they are eligible for unpaid medical leaves of absence. See, e.g., U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 398 (2002) ("[T]he nature of the 'reasonable accommodation' requirement, the statutory examples, and the Act's silence about the exempting effect of neutral rules together convince us that the Act does not create any such automatic exemption [for a disability-neutral workplace rule]."); Hendricks-Robinson, 154 F.3d at 699 (requiring exception to employer's neutral physical fitness test); Garcia-Ayala, 212 F.3d at 648 (requiring leave beyond that allowed under company's policy); see also EEOC Guidance, at Question 17 ("If an employee with a disability needs additional unpaid leave as a reasonable accommodation, the employer must modify its "no-fault" leave policy to provide the employee with the additional leave, unless it can show that: (1) there is another effective accommodation that would enable the person to perform the essential functions of his/her position, or (2) granting additional leave would cause an undue hardship."). However, on remand, PTI will remain free to attempt to prove, based on all the record evidence, that providing Basden with a limited medical leave would have imposed an undue hardship. CONCLUSION For the foregoing reasons, the judgment of the district court should be reversed and the case remanded for further proceedings. Respectfully submitted, P. DAVID LOPEZ General Counsel CAROLYN L. WHEELER Acting Associate General Counsel DANIEL T. VAIL Acting Assistant General Counsel /s/ Julie L. Gantz ______________________________ JULIE L. GANTZ Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St. N.E., 5th Floor Washington, D.C. 20507 (202) 663-4718 julie.gantz@eeoc.gov CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 6,865 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2003 in Times New Roman 14 point. /s/ Julie L. Gantz _________________________________ JULIE L. GANTZ Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St. N.E., 5th Floor Washington, D.C. 20507 (202) 663-4718 julie.gantz@eeoc.gov Dated: November 14, 2011 CERTIFICATE OF SERVICE I, Julie L. Gantz, hereby certify that on November 14, 2011, I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Seventh Circuit by using the CM/EFC system. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the CM/ECF system. /s/ Julie L. Gantz ____________________________ Julie L. Gantz Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St. N.E., 5th Floor Washington, D.C. 20507 (202) 663-4718 julie.gantz@eeoc.gov ********************************************************************************** <> <1> Kirk testified that she knew Basden was suffering from dizzy spells, seeing a doctor regularly and undergoing testing for "multiple things." A.285 (Kirk- Dep.36); see also A.162 (Kirk-Decl.-¶ 19). Acuff knew "that she was undergoing some medical tests" but alleged that "PTI never received a diagnosis or confirmation from any physician or medical provider that Basden was suffering from multiple sclerosis (MS) or from any other disability, disease or illness while she was employed by PTI." A.146-47 (Acuff-Decl.-¶ 19). Davis stated that "[t]he only information I had regarding Basden's health was non-specific complaints she made of headaches or generally not feeling well." A.166 (Davis-Decl.-¶ 12). <2> In fact, PTI was on notice that Basden had a medical condition that entitled her to reasonable accommodation as early as March 2008, when Basden asked to be allowed to perform dispatcher duties only (not closer duties). She also requested part-time hours in March 2008, but PTI did not place her in a part-time position until May 1, 2008. <3> Contrary to PTI's contention in the district court, Basden was not required to tell PTI that she needed leave "pursuant to the ADA." A.492 (Def. Reply at 14). See EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship, No. 915.002 (Oct. 17, 2002), at Question 1, available at http://www.eeoc.gov/policy/docs/accommodation.html (individual requesting accommodation "must let the employer know that s/he needs an adjustment or change at work for a reason related to a medical condition"; individual "may use 'plain English' and need not mention the ADA or use the phrase 'reasonable accommodation'"); Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 694 (7th Cir. 1998) ("A request as straightforward as asking for continued employment is a sufficient request for accommodation."). <4> The Commission's position, however, is that "attendance is not an essential function as designed by the ADA because it is not one of 'the fundamental job duties of the employment position.'" EEOC Guidance at n.65 (citing 29 C.F.R. § 1630.2(n)(1)).