Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 07 C 867-Amy J. St. Eve, Judge.
The opinion of the court was delivered by: Manion, Circuit Judge.
Before BAUER, MANION, and WILLIAMS, Circuit Judges.
Jeanne Gratzl suffers from incontinence and must get to a restroom within minutes of feeling an urge to urinate. She was hired by the Office of Chief Judges of the 12th, 18th, 19th and 22nd Judicial Circuits to work as a electronic court reporter specialist working exclusively in the control room of the DuPage County, Illinois courthouse. The job was ideal for her. Her responsibilities were so compatible with her medical condition that her supervisors were not even aware of it for five years. Unfortunately for Gratzl, this ideal situation changed in 2006 when, in response to a directive from the Illinois Coordinator of Court Reporting Services, the Chief Judge eliminated her specialist position and required all court reporters to rotate through live courtrooms as well as the control room. Believing that she was unable to perform in-court reporting due to her incontinence, Gratzl requested an accommodation. After several months, discussions broke down and, when she would not return to work, her employment was terminated. Gratzl brought this suit against her employer under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12111 et seq. and the Rehabilitation Act, 29 U.S.C. § 794 et seq. The district court granted summary judgment to the defendant. We affirm.
Gratzl has suffered from incontinence since approximately 1991, apparently as a result of pregnancy complications. Unable to treat her condition with medication, she left a court reporting job and began to teach court reporting at McCormick College, which allowed her to manage her incontinence by leaving the room whenever necessary. When the campus where she was teaching closed in 2001, Gratzl transferred but soon had to quit because she was unable to make the commute to the college's Chicago campus without becoming incontinent. As her incontinence worsened, she applied for an elec- tronic court reporting position in the control room at the DuPage County courthouse, believing the position would allow her to manage her condition. She was hired for the control room position and eventually entered into a written agreement specifying that her job responsibilities included only control room reporting. This arrangement worked favorably for both Gratzl and the court. Gratzl was able to manage her incontinence problem so well that no one was even aware of it. Then-Chief Judge Robert Kilander was pleased because court reporters, as a group, apparently preferred in-court reporting to the control room because they could make extra money preparing transcripts.
In 2006, however, the State of Illinois eliminated the "Court Reporting Specialist" job title and consolidated all reporters under the title "Official Court Reporter." Although the State did not specify what job responsibilities accompanied the new title, Judge Ann Jorgenson, the new Chief Judge of the DuPage County courthouse, decided that all court reporters-who now shared the same title-would be required to do the same job. This would include a full rotation in which all court reporters would rotate through all of the courtrooms, including the control room. According to the court, the purpose of this new procedure was to evenly distribute the workload that varied with each courtroom. When Judge Jorgenson told Gratzl on March 22 that she would have to go into the full rotation, Gratzl explained her medical condition to Judge Jorgenson and that, because of her condition, she believed she could not do in-court reporting. At the same meeting, Gratzl requested a leave of absence for surgery scheduled on April 11, which Judge Jorgenson approved.*fn1 Judge Jorgenson then gave Gratzl until April 14 to decide whether to participate in the full rotation or resign. On April 10, Gratzl informed the court that she would participate in the full rotation. She then requested, and was granted, an extension of her medical leave until May 25.
On May 19, Gratzl's attorney formally requested that the court accommodate Gratzl's incontinence by allowing her to return to work full time in the control room. Her request was supported by a letter from Dr. Catrambone, in which he stated that Gratzl needed to have the access to a restroom on a moment's notice and opined that this requirement was inconsistent with in-court reporting duties. In response, the court first offered to assign Gratzl only to juvenile courtrooms, which did not have jury trials. With Dr. Catrambone's support, Gratzl rejected that offer as incompatible with her incontinence-jury or no, she would still not have the flexibility she needed during trials-and stated that she did not believe that any accommodation other than maintaining her prior specialist position would accommodate her needs. The court then offered to structure her rotation to include only the courtrooms with an adjacent restroom, but Gratzl rejected this proposal as well. Through further communication with Gratzl and Dr. Catrambone, the court learned that Gratzl needed to be able to access a restroom within five minutes of feeling the urge to urinate, to prevent potential injury and the possibility of incontinent episodes.
Gratzl reiterated her request to be placed exclusively in the control room. In response, the court proposed additional accommodations, including: allowing her to avoid assignment to any courtrooms in which a trial was scheduled; not assigning her to juvenile courtrooms, which were farther from the restrooms; and establishing a "high sign" that she could use to signal to the presiding judge that she needed a break. Gratzl did not present these new terms to Dr. Catrambone but, feeling that the proposals did not accommodate her condition any better than the previous offers, rejected the offer. The court responded by reiterating that the job duties of all court reporters included rotating through both the courtrooms and the control room, repeating its latest offer of accommodation, and stating that Gratzl was expected to return to work on October 2. When Gratzl again rejected the offer, the court gave her until October 27 to provide specific reasons why the offer remained incompatible with her condition. She responded that because her medical condition had not changed, further back-and-forth debate over the previously rejected offer served no purpose. On October 31, the court terminated Gratzl's employment.
Gratzl then sued the Office of the Chief Judges under the ADA and the Rehabilitation Act for failing to accommodate her incontinence. The defendant moved for summary judgment, arguing that Gratzl had not established that she was disabled under the ADA and Rehabilitation Act, that it had offered her a reasonable accommodation, and that she was not qualified for the job of Official Court Reporter if she could not do in-court reporting. The district court concluded that Gratzl had not established that she was disabled under the ADA and Rehabilitation Act and granted summary judgment on that ground. It did not address the defendant's other arguments. Gratzl appeals.
Gratzl argues that the district court erred when it concluded that she had not established that she was a qualified individual with a disability under the ADA and Rehabilitation Act.*fn2 We review the district court's grant of summary judgment de novo, viewing all facts in the light most favorable to and drawing all reasonable inferences for Gratzl, the nonmoving party. Burnett v. LFW Inc., 472 F.3d 471, 477 (7th Cir. 2006).To establish her failure to accommodate claim under the ADA, Gratzl must show that: (1) she is a "qualified individual with a disability"; (2) the defendant was aware of her disability; and (3) the defendant failed to reasonably accommodate her disability. EEOC v. Sears, Roebuck & Co., 417 F.3d 789, 797 (7th Cir. 2005). "We may affirm a summary judgment on any ground that finds support in the record where the ground has been adequately presented in the trial court so that the non-moving party had an opportunity to submit affidavits or other evidence and contest the issue." Maclin v. SBC Ameritech, 520 F.3d 781, 786 (7th Cir. 2008) (internal quotations and citations omitted). Summary judgment is appropriate in this case only if there are no genuine issues of material fact and the defendant, the moving party, was entitled to judgment as a matter of law. Id.
The first step in determining whether a plaintiff is a "qualified individual with a disability" is to determine whether the plaintiff has a disability, or more specifically, whether she has "a physical or mental impairment that substantially limits one or more of [her] major life activities." 42 U.S.C. § 12102(1)(A). In this case, the district court concluded that Gratzl had not established that she had a disability because she had not put forward any evidence that she was substantially limited in a major life activity. The activity Graztl cites-elimination of waste-was not explicitly listed in the ADA or its implementing regulations as a major life activity at the time Graztl requested an accommodation. See 29 C.F.R. § 1630.2(i) (2006). This court has never held that the elimination of waste was a substantial life activity under the ADA prior to the ADA Amendments of 2008,*fn3 which were not effective until January 1, 2009, but we have held that similar bodily functions, including eating, are major life activities. Lawson v. CSX Transp., Inc., 245 F.3d 916, 923 (7th Cir. 2001). And other circuits have held that the elimination of waste is either itself a major life activity or essential to other major life activities such as caring for one's self. See, e.g., Heiko v. Colombo Sav. Bank, F.S.B., 434 F.3d 249, 255 (4th Cir. 2006) (holding that the elimination of bodily waste is a major life activity under the ADA); Workman v. Frito-Lay, Inc., 165 F.3d 460, 467 (6th Cir. 1999) (holding that controlling one's own bowels can be a major life activity). We need not, however, resolve this question of interpretation of a superseded law because, even if she has a disability, Gratzl is not entitled to relief under the ADA for other reasons: she is not a qualified individual and she rejected the reasonable accommodation that the court offered.
To establish that she is a "qualified individual with a disability," Gratzl must establish not only that she has a disability within the meaning of the ADA, but also that she is qualified for the job, i.e., that she is able "to perform the essential functions of the job, with or without reasonable accommodation." 42 ...