Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 01 C 1418--Suzanne B. Conlon, Judge.
Before Bauer, Posner, and Williams, Circuit Judges.
The opinion of the court was delivered by: Posner, Circuit Judge
This is an appeal from the grant of summary judgment to the defendant, the Veterans Administration, in a suit under the Rehabilitation Act of 1973, 29 U.S.C. §§ 701 et seq., the counterpart for federal agency defendants to the employment provisions of the subsequently enacted Americans with Disabilities Act. The plaintiff, a nurse at a VA hospital, injured her back help-ing to lift a 400-pound patient. After some weeks off work she returned to duty as a light-duty nurse, a temporary position (rather than a regular part of the hospital's table of organization) requiring less strength than the regular nursing job the plaintiff had had when she was injured. A year and a half later she was removed from the light-duty job for reasons unrelated to her injury. Shortly before that a physician had opined that the injury was permanent and had restricted her (in the words of her opening brief in this court) to "sedentary work, maximum lifts of 10 pounds, no work at or above shoulder level, and no patient lifting," but added that she could return to her job as a light-duty nurse. The light-duty nurse position having evaporated (and the hospital not obliged to recreate it, that is, to "manufacture a job that will enable the disabled worker to work despite his disability," Hansen v. Henderson, 233 F.3d 521, 523-24 (7th Cir. 2000)), the hospital assigned her to a clerical support position that paid a much lower salary although, with the workers' compensation that she received for her injury, her after-tax in come was (and, so far as appears, will continue to be) the same as when she had been a nurse. She complains that in reassigning her to the clerical job the VA failed to provide a proper accommodation for her disability.
Originally she was complaining about racial discrimination as well and this has given rise to a procedural issue pressed by the VA. The plaintiff had filed separate administrative complaints with regard to racial discrimination and to disability and had brought this suit after the denial of her racial-discrimination (and a related retaliation) complaint but while her disability complaint was still wend ing its way through the administrative process. Her initial complaint in the district court did not refer to the administrative disability claim that she had filed, but before the district judge ruled on the VA's motion for summary judgment, the VA denied the plaintiff's administrative disabil ity claim on the ground that it was the subject of her law suit.
The suit was not premature, even though filed before her administrative complaint was denied, because she had waited the required 180 days after filing that complaint before suing. 29 C.F.R. § 1614.407(b). The VA argues that her initial complaint in the district court should have referred to the administrative disability complaint to make clear that she had "exhausted" her administrative remedies by waiting 180 days before suing (we put the word in scare quotes because the right to sue is absolute after 180 days even if the agency is still mulling over whether to grant the individual some administrative remedy). We cannot see what difference that omission could have made. The VA can't complain about being surprised; it denied the administrative complaint because the subject of that complaint was the subject of her suit, and so it had to know about the relation between the administrative and judicial complaints. And if it was surprised, so what? It won in the district court and does not argue that it could defend against the plaintiff's appeal more effectively if only she had mentioned the administrative complaint at the outset of the suit. And anyway when it received the judicial complaint, the VA would as a matter of ordinary prudence, and doubtless did, search its records to make sure the plaintiff had filed an administrative complaint at least 180 days before suing, since otherwise the suit would be premature.
The VA further argues that the plaintiff cannot complain about any violation of the Rehabilitation Act that occurred before December 5, 1999, because to challenge a personnel action as a violation of the Act an employee must contact a designated employment discrimination counselor "within 45 days of the effective date of the action." 29 C.F.R. § 1614.105(a)(1). The action of which the plaintiff is complaining is being assigned to the clerical job, and that occurred on November 16 and, according to the VA, she did not contact the counselor until 45 days after December 5 (so January 19, though oddly the VA does not indicate the date). The plaintiff contends, however, that she contacted the counselor on December 16, which if so placed the job assignment that she claims violated the Act well within the 45 days. As the dispute cannot be resolved on the present record, she gets the benefit of the doubt.
We move on to the substantive issues, where an initial puzzle is the silence of the briefs and the district judge on the question whether the plaintiff even has a disability within the meaning of the Rehabilitation Act. This has merely been assumed, most surprisingly by the Veterans Administration. A disability within the meaning of the Rehabilitation Act and the Americans with Disabilities Act is a condition that, as we noted recently with reference to the ADA (but the standard under the Rehabilitation Act is the same, Toyota Motor Mfg., Kentucky, Inc. v. Williams, 122 S. Ct. 681, 689 (2002); Stein v. Ashcroft, 284 F.3d 721, 725 n. 2 (7th Cir. 2002); Silk v. City of Chicago, 194 F.3d 788, 798 n. 7 (7th Cir. 1999); Vinson v. Thomas, 288 F.3d 1145, 1152 n. 7 (9th Cir. 2002); McDonald v. Pennsylvania, 62 F.3d 92, 94-95 (3d Cir. 1995)), "substantially prevents a person from engaging in one of the major activities of life, such as walking, seeing, or reproduction." Szmaj v. American Tel. & Tel. Co., 291 F.3d 955, 956 (7th Cir. 2002). We doubt whether lifting more than 10 pounds is such an activity. Cf. Stein v. Ashcroft, supra, 284 F.3d at 725-26; Duncan v. Washington Metropolitan Area Transit Authority, 240 F.3d 1110, 1115 (D.C. Cir. 2001) (en banc); Snow v. Ridgeview Medical Center, 128 F.3d 1201, 1207 (8th Cir. 1997); Williams v. Channel Master Satellite Systems, Inc., 101 F.3d 346, 349 (4th Cir. 1996) (per curiam). It is not as if the plaintiff were missing an arm. Compare Gillen v. Fallon Ambu lance Service, Inc., 283 F.3d 11, 23 (1st Cir. 2002). The physi cian who determined the severity and duration of her back injury thought she could return to her job as a light-duty nurse. The number of Americans restricted by back problems to light work is legion. They are not disabled. See Contreras v. Suncast Corp., 237 F.3d 756, 762-63 (7th Cir. 2001); Ray v. Glidden Co., 85 F.3d 227, 228-29 (5th Cir. 1996) (per curiam). Any challenge to the plaintiff's claim to be disabled has been forfeited, but we have thought it prudent to register our doubts lest our opinion be assumed by its silence to endorse the proposition that a back injury that merely limits a person's ability to lift heavy objects creates a disability within the meaning of federal disability law.
The plaintiff (assuming as we shall in light of the defendant's forfeiture that she does have a disability) ar gues that if only the VA had engaged with her in the "interactive process" that federal disability law has been understood to contemplate, see, e.g., Rehling v. City of Chicago, 207 F.3d 1009, 1015-16 (7th Cir. 2000); 29 C.F.R. § 1630.2(o)(3)--that is, if only its human-relations or other management-level personnel had made suggestions for accommodating her disability rather than waiting for her to propose something ("consultative process" strikes us as a more perspicuous term than "interactive process")--it would quickly have discovered that her disability could be accommodated as she preferred: either by restoring her to her original nurse's job stripped of its lifting duties, or by assigning her to a nurse's job that involved no contact with patients, that is, a purely administrative position but one requiring knowledge of nursing, unlike the clerical position that she was given.
She acknowledges as she must in light of the cases that "failure to engage in this 'interactive process' cannot give rise to a claim for relief, however, if the employer can show that no reasonable accommodation was possible." Hansen v. Henderson, supra, 233 F.3d at 523. (Similar but more emphatic is Morton v. United Parcel Service, Inc., 272 F.3d 1249, 1256 (9th Cir. 2001); cf. Ballard v. Rubin, 284 F.3d 957, 960 (8th Cir. 2002).)
We think the best understanding of the brief passage in Hansen concerning bur den shifting is that the (only) consequence of the employ er's failing to consult with the employee concerning a possible accommodation of the employee's disability is to shift the burden of production concerning the availability of a reasonable accommodation from the employee to the employer. The plaintiff cannot seek a judicial remedy for the employer's failure to accommodate her disabil ity without showing that a reasonable accommodation existed. But if it existed yet she 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. Emerson v. Northern States Power Co., 256 F.3d 506, 515 (7th Cir. 2001); see also Ozlowski v. Henderson, 237 F.3d 837, 840 (7th Cir. 2001). The purpose of the consultative process is to find a reasonable accommodation for the particular disabled em ployee, and if she proves that such an accommodation existed, that nevertheless she did not receive it, and that there was no consultative process, suspicion arises that the reason her disability was not accommodated was not that she turned down a reasonable accommodation but that the employer failed to explain her options to her and thus did not make it "available" to her in a practical sense. The burden shifts to the employer to produce some evidence that even if he failed to consult or "interact" with her, soliciting her suggestions for a reasonable accommodation, etc., he offered her such an accommodation with sufficient clarity to make the accommodation available to her in a practical sense, so that her rejecting it was her own fault.
The principal significance of the consultative process is not that the employee is likely to come up with a reasonable accommodation if only she is consulted, but that she is quite likely to turn it down and either quit or sue unless the employer explains why he can't do more to enable her to work despite her disability. That can be presumed from the employer's failure to consult but he can meet the presumption with evidence that he said enough to avoid being blamed for her failure to accept his offer.
The interpretation that we have offered of the burdenshifting consequence of the employer's failure to engage in a consultative process with a disabled employee reconciles our cases with one another and also brings us into harmony with the cases from the other circuits (all but the Ninth) that say that the burden of showing that a reasonable accommodation existed remains on the employee. See Shapiro v. Township of Lakewood, 292 F.3d 356, 359-60 (3d Cir. 2002); Frazier v. Simmons, 254 F.3d 1247, 1261 (10th Cir. 2001); cf. Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1256 n. 2 (11th Cir. 2001). For present purposes, however, as we are about to see, all that mat ters is that every court, as far as we know, agrees with Hansen that when no reasonable accommodation is possible the failure to jaw about accommodation is harm less. See, e.g., Kvorjak v. Maine, 259 F.3d 48, 53 (1st Cir. 2001).
The question whether the employer engaged in the required consultative process and the question whether there was a reasonable accommodation for the plaintiff's condition are often and here intertwined. The less that is available in the employer's enterprise in the way of reasonable accommodations to the employee's particular disability, the less there is to consult about with a disabled employee seeking an alternative or reconfigured job with the employer. It is evident that with no light-duty nursing positions open our plaintiff could not hold a job that required contact with patients, because, if they are heavy, as so many Americans are, she would not, limited as she is to lifting 10 pounds, be able to support them if they needed help walking (as they often do), to break their falls (which are frequent in a hospital), to help them into and out of bed, or to pick them up from the floor after they have fallen. The hospital could not be required to pair her with another nurse, or an orderly, who would follow her around to help her lift patients. See Hansen v. Henderson, supra, 233 F.3d at 523 ("the job that Hansen would like would be a job in which another worker does the sorting, then gives Hansen the mail to case, and then when Hansen has done that carries the cases to the truck, and Hansen then ...