TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES.................................................................... ii

STATEMENT OF INTEREST................................................................ 1

STATEMENT OF THE ISSUES............................................................. 2

PERTINENT STATUTORY AND REGULATORY PROVISIONS...... 3

STATEMENT OF THE CASE

A. Factual Background............................................................... 3

B. Procedural Background.......................................................... 9

ARGUMENT

The District Court Erred in its Reasonable-Accommodation Analysis..... 12

A. The district court erroneously concluded that Union Pacific

satisfied its interactive-process obligations by simply agreeing

to consider any potential accommodations that Mlsna proposed... 14

B. The district court erred in holding that it need not evaluate

whether any hearing protection devices first identified

during litigation qualify as reasonable accommodations

under the statute........................................................................... 25

C. The district court incorrectly imported McDonnell Douglas

pretext analysis into Mlsna’s claim for failure to provide

reasonable accommodation........................................................... 31

CONCLUSION...................................................................................... 33

CERTIFICATE OF COMPLIANCE........................................................ 34

ADDENDUM

CERTIFICATE OF SERVICE

TABLE OF AUTHORITIES

Cases Page(s)

Beck v. University of Wisconsin Board of Regents,

75 F.3d 1130 (7th Cir. 1996)........................................................ 15, 17

Bultemeyer v. Fort Wayne Community Schools,

100 F.3d 1281 (7th Cir. 1996)...................................................... 31-32

Deane v. Pocono Medical Center,

142 F.3d 138 (3d Cir.1998) (en banc)................................................ 28

Donahue v. Consolidated Rail Corp.,

224 F.3d 226 (3d Cir. 2000).............................................................. 26

EEOC v. Chevron Phillips Chemical Co.,

570 F.3d 606 (5th Cir. 2009)............................................................. 22

EEOC v. Sears, Roebuck & Co.,

417 F.3d 789 (7th Cir. 2005)....................................... 15-16, 22-25, 27

Feliberty v. Kemper Corp.,

98 F.3d 274 (7th Cir. 1996)............................................................... 22

Fjellestad v. Pizza Hut of America, Inc.,

188 F.3d 944 (8th Cir. 1999)............................................................. 28

Gile v. United Airlines, Inc.,

213 F.3d 365 (7th Cir. 2000).................................................. 15, 23-24

Hansen v. Henderson,

233 F.3d 521 (7th Cir. 2000)............................................................. 15

Hendricks-Robinson v. Excel Corp.,

154 F.3d 685 (7th Cir. 1998)............................................................. 21

Hunt-Golliday v. Metropolitan Water Reclamation District,

104 F.3d 1004 (7th Cir. 1997)...................................................... 29-30

Lawler v. Peoria School District No. 150,

837 F.3d 779 (7th Cir. 2016)........................................................ 15, 21

Lenker v. Methodist Hospital,

210 F.3d 792 (7th Cir. 2000)........................................................ 22, 32

Mays v. Principi,

301 F.3d 866 (7th Cir. 2002),

abrogated in part by EEOC v. United Airlines, Inc.,

693 F.3d 760 (7th Cir. 2012)............................................................. 27

McBride v. BIC Consumer Products Manufacturing. Co.,

583 F.3d 92 (2d Cir. 2009)................................................................ 28

McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973)........................................................... 2, 13, 31-32

Miller v. Illinois Department of Corrections,

107 F.3d 483 (7th Cir. 1997)........................................................ 17, 21

Mole v. Buckhorn Rubber Products, Inc.,

165 F.3d 1212 (8th Cir. 1999)........................................................... 30

Reeves ex rel. Reeves v. Jewel Food Stores, Inc.,

759 F.3d 698 (7th Cir. 2014)............................................................. 24

St. Mary’s Honor Center v. Hicks,

509 U.S. 502 (1993).......................................................................... 32

Snapp v. United Transportation Union,

889 F.3d 1088 (9th Cir. 2018)........................................................... 28

Spurling v. C & M Fine Pack, Inc.,

739 F.3d 1055 (7th Cir. 2014)................................................ 14, 19, 27

Stern v. St. Anthony’s Health Center,

788 F.3d 276 (7th Cir. 2015)............................................................. 27

US Airways, Inc. v. Barnett,

535 U.S. 391 (2002).......................................................................... 33

Weigel v. Target Stores,

122 F.3d 461 (7th Cir. 1997)............................................................. 32

Statutes, Regulatory Materials, and Rules

Title I of the Americans with Disabilities Act (“ADA”),

42 U.S.C. §§ 12101 et seq.................................................................. 1

42 U.S.C. § 12111(8)......................................................................... 14

42 U.S.C. § 12111(9)(B)................................................................ 1, 14

42 U.S.C. § 12112(b)(5)(A)........................................................ passim

29 C.F.R. § 1630.2(o)(3)........................................................................ 15

29 C.F.R. § 1630.9(e)............................................................................. 19

29 C.F.R. pt. 1630, app. § 1630.9..................................................... 15, 20

49 C.F.R. § 227.115(c)-(d)...................................................................... 4

49 C.F.R. § 242.117(b)............................................................................. 3

49 C.F.R. § 242.117(i)............................................................................. 3

Federal Rule of Appellate Procedure 29(a).............................................. 1

Other Authority

56 Federal Register 35726 (July 26, 1991)............................................. 19

STATEMENT OF INTEREST

The Equal Employment Opportunity Commission (“Commission” or “EEOC”) is charged by Congress with interpreting and enforcing Title I of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq., and certain other federal antidiscrimination laws. The ADA specifies that an employer may violate the law if it fails to provide a reasonable accommodation, such as a specialized hearing protector, to an otherwise qualified disabled employee. Id. §§ 12111(9)(B); 12112(b)(5)(A). At issue in this case is the scope of an employer’s reasonable-accommodation duty.

Among other things, the district court held that, during the period following plaintiff’s request for an accommodation, his employer did not need to seek out suitable accommodations or otherwise work with plaintiff to look for an accommodation that would allow him to continue working; the employer could instead sit back and do nothing other than consider any proposals plaintiff made. This and other rulings, if upheld on appeal, would muddle the interpretation of the reasonable-accommodation provisions of the ADA and undermine enforcement of the statute. The Commission therefore offers its views to this Court. See Fed. R. App. P. 29(a).

STATEMENT OF THE ISSUES[1]

(1) Did the district court err in concluding that to satisfy its duty to engage in the “interactive process” following plaintiff’s request for an accommodation, the employer needed only to agree to look at particular accommodations the employee proposed and did not have to work with plaintiff to seek out accommodations that would allow him to do his job?

(2) When the district court was evaluating whether the company unlawfully failed to provide a reasonable accommodation, did it err in holding that it should consider only specific accommodations plaintiff proposed during the interactive process, even where, as here, both parties knew during that process what kind of accommodation he would need?

(3) Did the district court err when it applied the burden-shifting scheme set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to this failure-to-accommodate claim and held that the claim failed because, inter alia, plaintiff did not show that his employer’s reason for refusing an accommodation was pretext for discrimination?

PERTINENT STATUTORY AND REGULATORY PROVISIONS

Pertinent statutory and regulatory provisions are included in the addendum to this brief.

STATEMENT OF THE CASE

A. Factual Background

Mark Mlsna began working as a “thru-freight train conductor” for Union Pacific in or around 2006. District court docket number (“R.”) 27 at 5 (Mlsna Dep.).[2] When he was hired, the company was aware that he had a hearing impairment and wore hearing aids. Id. at 18. Union Pacific’s Chief Medical Officer, Dr. John Holland, acknowledged that Mlsna’s hearing did not further deteriorate while he was employed at the company. R.94 at 6 (Holland Dep.).

In 2012, the Federal Railroad Administration (“FRA”) promulgated new regulations that, among other things, require railroads to certify that their conductors meet certain minimum hearing acuity standards, with or without hearing aids. See 49 C.F.R. § 242.117(b), (i); R.94 at 6 (Holland Dep.). Preexisting FRA regulations also require railroad employees to wear hearing protection in specified circumstances. 49 C.F.R. § 227.115(c)-(d). As required by the regulations, Union Pacific adopted a Hearing Conservation and Policy Program; however, its hearing conservation standards “exceed federal minimum standards.” R.58-2 at 3. Under the company’s program, all conductors were required to wear hearing protection in certain circumstances, and they were not allowed to wear hearing aids under that hearing protection. R.58 at 5 (Holland Decl.); R.60 at 4-5 (Decl. of Vincent (Blake) Knight, Union Pacific’s Senior Manager of Industrial Hygiene).

Employees without hearing impairments could choose from a “variety” of approved hearing protectors, including earmuffs and earplugs. R.95 at 11 (Knight Dep.). But Union Pacific approved only one option — an earmuff-style “amplified hearing protection device” called the Pro Ears Gold — for hearing-impaired employees like Mlsna. R.58 at 3-4 (Holland Decl.). As an amplified hearing protection device, the Pro Ears Gold contains an external microphone and an internal speaker that electronically amplifies sound, including voices, to some extent while blocking harmful levels of noise. Id.

Union Pacific insisted that conductors who did not meet the FRA minimum hearing acuity standards with unaided hearing must do so while wearing the company-approved amplified hearing protection device (but without hearing aids). Id. at 4; R.58-2 at 3. Only employees who passed the hearing test were certified and could continue working as conductors. See R.40-2 at 2; R.58-2 at 1.

Mlsna took the hearing test in December 2014 and again in January 2015 but could pass it only with his own hearing aids; even with the volume turned on high, the Pro Ears Gold did not amplify sound enough to compensate for his hearing loss. R.58-2 at 2-3. Union Pacific therefore refused to certify him and removed him from service as a conductor. R.40-2 at 1-2; R.58 at 4-5 (Holland Decl.); R.94 at 2-3 (Holland Dep.). The company suggested he contact the Disability Management Department for assistance seeking other possible jobs. R.57-2 at 1, 3. When deposed, Kristi Deardorff, who worked at Union Pacific in vocational case management, acknowledged that she did not “believe there [were] positions that he could hold[,] given his current limitations.” R.96 at 3; see also R.27 at 20 (Mlsna Dep.).

Instead, in March 2015, Mlsna wrote to Union Pacific, asking if he could use a hearing protection device manufactured by E.A.R. Inc., a device he had identified with the help of his union. R.73-3 at 2; R.27 at 10 (Mlsna Dep.). Mlsna asked the company to consider his letter his “request for accommodation.” R.73-3 at 2. The device in question, called the E.A.R. Primo, is a custom in-the-ear device that muffles ambient noise and has internal electronics that are designed to amplify other sound. See R.55 at 4 (expert report of Dr. Sigfrid Soli, defendant’s expert). Being custom fit, it was costly. See R.73-3 at 3 (estimating $3600).

Union Pacific takes the position that cost was not a “reason” for denying Mlsna’s proposed accommodation. R.92 at 10 (Dep. of Terry Owens, Union Pacific’s Director of Disability Management). Rather, it was because the device was a custom-molded earplug and lacked a certified “noise reduction rating” (“NRR”), R.95 at 13 (Knight Dep.), which is one measure of how well a device muffles sound, id. at 6. Blake Knight, the Industrial Hygiene Department manager charged with reviewing Mlsna’s proposal, stated that, as a matter of policy, Union Pacific “categorically” refuses to authorize use of any custom-molded earplugs or any device without a manufacturer-certified NRR. R.60 at 3 (Knight Decl.). Knight reviewed “literature” on the E.A.R. Primo available on the web. R.95 at 7 (Knight Dep.). Finding no NRR in the literature, he did not approve the device. Id. (agreeing that he could have called the manufacturer but did not).

Union Pacific informed Mlsna of its disapproval of the E.A.R. Primo but advised him that “if he located another suitable device[,] it would evaluate the proposal.” R.51 at 16 (Union Pacific’s Statement of Undisputed Material Facts); R. 27 at 12 (Mlsna Dep.). Mlsna stated that he did look for other devices but did not find any before filing suit. R.27 at 12, 16, 22 (Mlsna Dep.). His subsequent request to Union Pacific to reconsider its decision was denied. Id. at 15; R.58-2 at 1-4. Mlsna expressed disappointment that there was not “more dialogue” between him and the company “to try to find a good solution that would have been good for both [of them].” R.27 at 22 (Mlsna Dep.).

In its summary-judgment briefing, Union Pacific admitted that “it investigated only the device that Mlsna actually proposed.” R.84 at 14. Union Pacific thus appears to have disavowed Dr. Holland’s assertion in his letter denying Mlsna’s request for reconsideration that the company “conducted an extensive search” for other devices, R.58-2 at 3-4. Consistent with this apparent disavowal, evidence suggests that no one at the company actually “conducted” any such “search.” Holland, for example, stated in his deposition that Union Pacific had Director of Disability Management Terry Owens “take the lead” on Mlsna’s request for accommodation. R.94 at 7. He added, “part of the process” was for Owens “to try to determine if there were other adaptive devices,” and although Holland was not “directly” involved, his “understanding” was that she “did do inquiries and didn’t find anything that was suitable as an alternative device.” Id. at 8. Owens, however, testified, “none of us were going out and looking for something else for [Mlsna]”; instead, “[w]e were just asking him if you talked to your audiologist and you’ve come up with something else.” R.92 at 8 (Owens Dep.) (adding, “for us to actually go out and open up the website and look at all the markets, no”). As for Knight, he admitted that he reviewed “literature” about the E.A.R. Primo but did not look for other devices because he “[w]asn’t asked to.” R.95 at 7 (Knight Dep.).

In contrast, both of plaintiff’s experts, Dr. Douglas Kloss and Dr. Kevin Trangle, did conduct a search for devices that would allow Mlsna to satisfy the FRA’s and Union Pacific’s requirements. They identified a number of amplified hearing protection devices — both earmuffs and earplugs — that they opined would provide sufficient amplification while also dampening an appropriate amount of ambient noise. See, e.g., R.56 at 1, 5 (Trangle letter); R.81 at 2-3 (Trangle supplemental expert report); R.76 at 1 (Kloss letter). In Trangle’s view, while Mlsna should be tested with the devices, “[he] could easily have been accommodated in his position as a conductor for [Union Pacific] using the technology and approach that [they] agree[d] should have been done in this matter.” R.77 at 1; cf. R.93 at 9 (Soli Dep.) (agreeing the devices might work, but “you would need to get the device” and “test him on it”).

B. Procedural Background

Mlsna brought suit against Union Pacific, alleging, inter alia, that the company violated the ADA by failing to provide him with suitable hearing protection as a reasonable accommodation for his disability. R.3 at 5 (amended complaint). He also challenged Union Pacific’s decision not to certify him as a conductor in administrative proceedings before the FRA. R.27 at 9, 12-13.

Following discovery in the ADA action, the district court granted Union Pacific summary judgment. Pl.’s Short App. (“S.A.”) 11-34. The court held that Mlsna did not establish that he was a “qualified individual” within the meaning of the ADA because he “failed to marshal enough evidence for a reasonable jury to conclude that he could fulfill the essential functions of the train conductor position with a reasonable accommodation.” Id. at 11. The court acknowledged that there was “no dispute” Mlsna had “the requisite background, experience, and knowledge to serve as a train conductor.” Id. at 25. However, the court observed, Mlsna was also required to satisfy the FRA hearing acuity requirements and, the court held, wearing hearing protection is an essential function of the conductor position. Id. at 25-29. The court stated that the question, therefore, was “whether a reasonable accommodation would have permitted plaintiff to meet the FRA hearing acuity standards while wearing hearing protective devices.” Id. at 29. In the court’s view, the answer was no.

In evaluating the accommodation question, the court declined to consider any hearing protection devices Mlsna identified after the start of litigation. S.A. 30 n.17. According to the court, Union Pacific “cannot be faulted for failing to consider proposed accommodations [Mlsna] did not suggest at the time of the employment decision” — that is, during the “interactive process” following Mlsna’s accommodation request — “especially in light of its offers to consider other suggestions or to provide assistance in finding alternative employment.” Id.

As for the only device that plaintiff proposed during the interactive process, the E.A.R. Primo, the court explained that the company rejected it because it “lacked an NRR.” S.A. 30-31. And while plaintiff argued that there are other ways of determining the level of hearing protection provided by a device, the court held that he failed to produce any evidence from which a reasonable jury could conclude that Union Pacific’s stated reason — the lack of a discernible NRR in the literature — was a pretext for discrimination. Id. at 31. Furthermore, the court continued, there was no record evidence the device would actually permit him to fulfill the essential functions of a train conductor, apparently because while evidence may have indicated that the device could amplify sound enough to allow plaintiff to “meet FRA minimal hearing criteria,” no evidence established that it provided adequate hearing protection. Id. at 32-33 (capitalization omitted) (also concluding that the evidence was deficient for other reasons).

Accordingly, the court concluded, “Union Pacific’s rejection of the E.A.R. Primo was reasonable.” S.A. 33. The court also held that “Union Pacific cannot be held responsible for the breakdown of the interactive process, having met its burden by evaluating plaintiff’s proposed accommodation and offering to review others.” Id. (adding that plaintiff did not propose any “others” during the interactive process). And, the court stated, “because plaintiff cannot meet FRA requirements while wearing appropriate hearing protection, he is not a ‘qualified individual’” within the meaning of the ADA. Id. at 34.

Approximately three weeks after its summary-judgment ruling, the Operating Crew Review Board of the FRA issued a decision in plaintiff’s related FRA proceedings. The decision stated that Union Pacific had “misrepresented a more stringent company policy as FRA’s hearing acuity standards,” further explaining that plaintiff satisfied the FRA hearing acuity standard when he passed the hearing test with the use of a hearing aid. R.106 at 4. The decision concluded that Union Pacific’s denial of certification “cannot be based on such flagrant misrepresentations” and therefore granted Mlsna’s petition. Id. In light of the decision, plaintiff moved for reconsideration in district court.

The district court denied plaintiff’s motion. S.A. 36-42. The court concluded that the issues in this case were different from those before the FRA. Id. at 39-40. Further, the court stated, it was not “convinced” by the findings of the FRA decisionmakers as to the “misrepresentations” of Union Pacific’s chief medical officer. Id. at 40-41.

ARGUMENT

The District Court Erred in its Reasonable-Accommodation Analysis

At issue in this case is, inter alia, whether Union Pacific violated the ADA by failing to provide a reasonable accommodation to conductor Mark Mlsna and instead removing him from service when he could not pass a hearing test while wearing the only hearing protection the company approved for persons with moderate to severe hearing loss. In ruling that Mlsna could not prove he was qualified — able to do the essential functions of his job even with reasonable accommodation — the district court made several serious analytical errors.

First, the court concluded that all Union Pacific was obligated to do during the interactive process was agree to look at any alternative hearing protection devices Mlsna proposed; the company did not need to seek out suitable devices on its own or even assist Mlsna in doing so. Second, and relatedly, the court held that only devices Mlsna identified during the interactive process were relevant to his accommodation claim. But particularly because both parties knew during that process what kind of accommodation Mlsna would need, both conclusions are incorrect. Once Mlsna requested accommodation, the company was required to work with Mlsna to actively explore hearing protection devices that would allow him to do his job. Because the company failed to do that, the question is simply whether there was a suitable device that was available during the interactive process, regardless of whether it was first identified during litigation.

Finally, the court wrongly attempted to analyze Union Pacific’s accommodation obligations under the proof scheme set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Uncovering an employer’s motivation — which is what the McDonnell Douglas proof scheme seeks to do — is unnecessary and inappropriate in the ADA failure-to-accommodate context.

A. The district court erroneously concluded that Union Pacific satisfied its interactive-process obligations by simply agreeing to consider any potential accommodations that Mlsna proposed.

The district court misunderstood and misapplied the law regarding the employer’s ADA reasonable-accommodation duty. The statute prohibits “discriminat[ion]” against a “qualified individual” based on disability and defines such discrimination to include “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified [employee] with a disability,” unless such accommodation would impose an “undue hardship on the operation of the business.” 42 U.S.C. § 12112(b)(5)(A). Reasonable accommodation may include “acquisition or modification of equipment or devices,” such as the specialized hearing protectors at issue in this case. Id. § 12111(9)(B). The term “qualified individual” means “an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” Id. § 12111(8).

Because the ADA requires accommodation only to an employee’s known limitations, an employee generally begins the accommodation process by notifying the employer that he has a disability and needs an accommodation. Spurling v. C & M Fine Pack, Inc., 739 F.3d 1055, 1061 (7th Cir. 2014). Thereafter, the ADA “imposes a duty on employers to engage in a flexible give-and-take with the disabled employee” — what EEOC and courts have termed an “interactive process,” 29 C.F.R. § 1630.2(o)(3); 29 C.F.R. pt. 1630, app. § 1630.9 — “so that together [the parties] can determine what accommodation would enable the employee to continue working.” EEOC v. Sears, Roebuck & Co., 417 F.3d 789, 805 (7th Cir. 2005). To satisfy this duty, the employer must do more than merely “s[i]t on its hands” when an employee requests accommodation. Lawler v. Peoria Sch. Dist. No. 150, 837 F.3d 779, 786-87 (7th Cir. 2016). Instead, the employer has an “affirmative obligation” to seek out the employee and work with him to “craft a reasonable accommodation.” Sears, 417 F.3d at 807 (quoting Gile v. United Airlines, Inc., 213 F.3d. 365, 373 (7th Cir. 2000)).

Both parties must make a “‘good faith effort’ to determine what accommodations are necessary,” but if the process breaks down, “courts should attempt to isolate the cause . . . and then assign responsibility.” Lawler, 837 F.3d at 786 (alteration in original) (quoting Beck v. Univ. of Wis. Bd. of Regents, 75 F.3d 1130, 1135 (7th Cir. 1996)). An employer’s “[f]ailure to engage in th[e] ‘interactive process,’” however, “cannot give rise to a claim for relief . . . if the employer can show that no reasonable accommodation was possible.” Sears, 417 F.3d at 805 (quoting Hansen v. Henderson, 233 F.3d 521, 523 (7th Cir. 2000)). For the reasons identified in this section, a reasonable jury could conclude that Union Pacific did not satisfy its obligations to participate in the interactive process, and, as explained infra in Section B, the district court erred in its analysis of whether a reasonable accommodation was possible here.

It is undisputed that Union Pacific knew that Mlsna had a moderate to severe hearing impairment; the company also knew that Pro Ears Gold — the only hearing protection it had approved for conductors with hearing impairments — did not work for Mlsna because it did not sufficiently amplify sounds, including voices. R.58-2 at 2-3. The company further knew that Mlsna wanted to continue working as a conductor, as he had done successfully for nearly a decade. R.73-3 at 2. And Mlsna specifically requested accommodation and proposed that he be allowed to use the E.A.R. Primo as hearing protection. See id. Accordingly, as Union Pacific does not dispute, it was obligated to engage with Mlsna in an interactive process. And, a reasonable jury charged with deciding this issue could find that, at a minimum, Union Pacific had a duty to work with Mlsna to “craft a reasonable accommodation.” Sears, 417 F.3d at 807. To the extent Union Pacific chose to reject his proposal, it was obligated to work with him to seek out one or more other devices that would enable him to satisfy the FRA hearing acuity standards while also providing adequate hearing protection.

But a reasonable jury could find that Union Pacific did not fulfill this duty. Instead, evidence in the record supports the conclusion that Union Pacific simply sat on its hands, waiting to see if Mlsna could come up with an alternative hearing protector that the company would approve. See supra pp. 6-8. When Mlsna — acting without counsel or expert assistance — actually did identify what seemed like a plausible device, the company simply rejected it based on its policies without making any effort even to assist him in finding other devices that would enable him to continue working as a conductor. See R.92 at 7-8; R.95 at 7.

The company’s inaction was particularly problematic because the company was in a good position to identify devices that would satisfy its requirements. See, e.g., R.60 at 3 (Knight Decl.) (noting that Union Pacific’s Industrial Hygiene Department “identifies suitable hearing protection devices”); R.95 at 9 (Knight Dep.). Indeed, having previously researched amplified hearing protection devices, see R.94 at 8-9 (Holland Dep.), it was at least somewhat familiar with companies providing such products. See Miller v. Ill. Dep’t of Corrs., 107 F.3d 483, 486 (7th Cir. 1997) (explaining that the “employer will often know more about the feasibility of . . . adaptations than the employee”); Beck, 75 F.3d at 1135-36 (noting that where the missing information can only be provided by one of the parties, that party’s failure to provide the information may be found to have caused the breakdown in the interactive process); Snapp v. United Transp. Union, 889 F.3d 1088, 1097 (9th Cir. 2018) (noting that employees “do not have at their disposal the extensive information concerning . . . possible accommodations which employers have” and concluding that “[p]utting the entire burden on the employee to identify reasonable accommodations” is inappropriate (citation omitted)).

The district court, however, concluded that Union Pacific “cannot be held responsible for the breakdown of the interactive process, having met its burden by evaluating plaintiff’s proposed accommodation and offering to review others,” but without working with Mlsna to look for any alternatives. S.A. 23. Thus, in the court’s view, all of the burden for locating a suitable accommodation properly fell solely on plaintiff.

The statute, regulatory material, and case law, however, make clear that an employer must work together with an employee to identify possible accommodations. Starting with the statute, the ADA requires the employer, not the disabled employee, to provide a reasonable accommodation. Indeed, a violation of the statute occurs if, absent undue hardship, the employer fails to “mak[e] reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability.” 42 U.S.C. § 12112(b)(5)(A). And by its plain terms, the section requires employers to provide “reasonable accommodations” to the disabled individual’s “known” limitations without specifying that the accommodations also must already be “known” to the employer. Thus, where, as here, an employer knows an accommodation is needed, the statute requires that it work with an employee to seek out potential accommodations, even when an employee does not identify them on his own.

The regulations also emphasize the important role of the employer in identifying accommodations. Largely tracking the statute, the regulations state that the employer “is required, absent undue hardship, to provide a reasonable accommodation to an otherwise qualified individual” with an actual disability or a record of one. 29 C.F.R. § 1630.9(e). Elaborating, the regulations explain that, “[t]o determine the appropriate reasonable accommodation[,] it may be necessary for [the employer] to initiate an informal, interactive process with the individual with a disability in need of the accommodation.” Id. § 1630.2(o)(3) (emphasis added).

Similarly, the Commission’s interpretive guidance — which was promulgated “concurrently” with the regulations, 56 Fed. Reg. 35726, 35726, 35748 (July 26, 1991) — describes an employer’s obligations to work on identifying accommodations during the interactive process. Cf., e.g., Spurling, 739 F.3d at 1062 (relying on this interpretive guidance). It states that “[o]nce an individual with a disability has requested provision of a reasonable accommodation, the employer must make a reasonable effort to determine the appropriate accommodation,” adding that 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 (emphasis added).

In particular, once an accommodation is requested, “the employer, using a problem solving approach, should,” among other things, (1) “[i]n consultation with the [employee,] identify potential accommodations and assess the effectiveness each would have”; and (2) “select and implement the accommodation that is most appropriate for both the employee and the employer.” Id. (noting that this process may be necessary if the employer and employee cannot “readily identify an appropriate accommodation”). “If consultation with the individual in need of the accommodation still does not reveal potential appropriate accommodations, then the employer, as part of this process, may find that technical assistance is helpful in determining how to accommodate the particular individual in the specific situation,” but “failure to obtain or receive technical assistance . . . will not excuse the employer from its reasonable accommodation obligation.” Id. Nothing in either the regulations or the interpretive guidance suggests that it is the employee’s duty to search out his own accommodation while the employer sits passively by and waits.

Finally, case law confirms that an employer does not satisfy its duty to engage in the interactive process if it merely states its reasons for rejecting an employee’s suggested accommodation and remains open to reviewing other proposals identified by the employee. As this Court explained in Miller, “the duty of reasonable accommodation requires more than a willingness on the part of the employer to listen to the employee’s suggestions as to how the workplace might at reasonable cost be adapted to the employee’s disability”; the “employer must make a reasonable effort to explore the possibilities.” 107 F.3d at 486; see also Lawler, 837 F.3d at 786 (holding employer’s outright refusal to grant a requested accommodation “belie[d] any contention that [the employer] made a reasonable attempt to explore possible accommodations”). Indeed, in the context of considering reassignment to another position as a reasonable accommodation, this Court has concluded that an “[employer] is required to identify the full range of alternative positions available and to consider transferring the employee to any of these other jobs.” Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 695 (7th Cir. 1998) (emphasis and citation omitted).

Similarly, in Lenker v. Methodist Hospital, this Court affirmed the use of a jury instruction that “the employer was obliged to identify, in consultation with the employee, potential accommodations, and to assess the effectiveness each would have.” 210 F.3d 792, 797-98 (7th Cir. 2000); cf. Feliberty v. Kemper Corp., 98 F.3d 274, 280 (7th Cir. 1996) (explaining that “the employer is never completely free from some measure of responsibility” for identifying an appropriate accommodation and holding that an employer’s proffered accommodation is not necessarily reasonable even when “it fulfills the employee’s request”). In short, an employee is “not required to come up with the solution . . . on [his] own.” EEOC v. Chevron Phillips Chem. Co., 570 F.3d 606, 621-22 (5th Cir. 2009).

Although it is not entirely clear, it appears that the district court may have based its contrary holding on the following passage from Sears: “‘[I]f the employee has requested an appropriate accommodation, the employer may not simply reject it without offering other suggestions or at least expressing a willingness to continue discussing possible accommodations. . . . An employer cannot sit behind a closed door and reject the employee’s requests for accommodation without explaining why the requests have been rejected or offering alternatives.’” S.A. 29 n.16 (emphasis added) (quoting 417 F.3d at 806). But to the extent that the passage from Sears suggests that an employer need only explain its reasons for rejecting an employee’s proposed accommodations and be willing to discuss an employee’s alternative proposals, it is dictum and contradicted by the authority just discussed. The relevant holding in Sears is that a jury could reasonably find that by rejecting the Sears plaintiff’s requested accommodation and taking no further action, the employer failed its duty to “participate” “meaningful[ly] . . . in the interactive process.” 417 F.3d at 806-08. Similarly, here, a reasonable jury could find that Union Pacific simply rejected Mlsna’s proposed accommodation and took no further action besides waiting passively for any other proposals he might have, thereby also failing its duty to participate “meaningfully” in the interactive process.

That Sears did not endorse actions like those Union Pacific took here is clear from the discussion immediately following the passage the district court quoted. There, this Court explained that the employer in Gile, 213 F.3d 365, “‘flunked its obligations under the ADA’ when, in the face of the employee’s repeated pleas for a shift transfer, it refused the request and then did nothing to engage with the employee in determining if any alternative accommodations would be appropriate.” Sears, 417 F.3d at 807 (quoting Gile, 213 F.3d at 373). Sears continued, “[a]lthough the employer believed that the employee’s proposed accommodation would have been ineffective, it ‘had the affirmative obligation to seek [the employee] out and work with her to craft a reasonable accommodation.’” Id. (alteration in original) (emphasis added) (quoting Gile, 213 F.3d at 373). That analysis cannot be reconciled with any determination that Union Pacific satisfied its “affirmative obligation,” Sears, 417 F.3d at 807 (citation omitted), by merely “evaluating [and rejecting] plaintiff’s proposed accommodation” — that is, learning through “literature” that the device consisted of custom earplugs with no published NRR, R.94 at 7 — “and offering to review others,” S.A. 33.

To be sure, an employee must also “provide sufficient information to the employer to determine the necessary accommodations,” and where he fails to do so, “the employer cannot be held liable for failing to accommodate the disabled employee.” Reeves ex rel. Reeves v. Jewel Food Stores, Inc., 759 F.3d 698, 701-02 (7th Cir. 2014). In district court, however, Union Pacific never claimed that Mlsna withheld information about his impairment that was critical to identifying an alternative accommodation. And, of course, Union Pacific had at its disposal the results of two hearing tests conducted on Mlsna immediately before it refused to certify him as a conductor. See R.94 at 3 (Holland Dep.); R.58-2, at 1-2. Because a reasonable jury could conclude that Union Pacific altogether disengaged from the process of searching for alternative accommodations for Mlsna, the district court’s interactive-process ruling should be reversed.

B. The district court erred in holding that it need not evaluate whether any hearing protection devices first identified during litigation qualify as reasonable accommodations under the statute.

As noted above, an employer’s “[f]ailure to engage in th[e] ‘interactive process’ cannot give rise to a claim for relief . . . if the employer can show that no reasonable accommodation was possible.” Sears, 417 F.3d at 805 (citation omitted). In evaluating whether accommodation was possible here, however, the district court compounded the error discussed in Section A by mistakenly refusing to consider any hearing protection devices that Mlsna first identified after suit was filed. According to the court, any accommodations first identified at that juncture would be untimely. S.A. 30 n.17 (stating “Union Pacific cannot be faulted for failing to consider proposed accommodations plaintiff did not suggest at the time of the employment decision”); see also id. at 33 (concluding that one supplemental expert report should not be considered because, inter alia, it failed to specify that it related to the device Mlsna proposed during the interactive process). The court’s rule follows naturally from its faulty suggestion that in a failure-to-accommodate case, the employer may sit back and wait for the plaintiff to propose accommodations. Id. at 30 n.17, 33. The court cited no authority for its rule and, in fact, there is no support for it, at least in the circumstances of this case.

Critically, the statute requires an employer to “mak[e] reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability,” unless the accommodation would impose an “undue hardship on the operation of the business.” 42 U.S.C. § 12112(b)(5)(A). By its plain terms, the statute obligates employers, short of undue hardship, to reasonably accommodate a disabled employee’s “known” limitations once it becomes aware that accommodation is needed. The provision refers to “known limitations,” not “known accommodations.” Nothing in the statute restricts the employer’s obligation to accommodations the employee identifies during the interactive process, at least where, as here, the employer has shirked its duty to participate in the search for a suitable accommodation.

Accordingly, like most litigation questions, whether a reasonable accommodation existed at the time of the interactive process here should be based on all record evidence, including evidence adduced during district court proceedings. See, e.g., Donahue v. Consol. Rail Corp., 224 F.3d 226, 234 (3d Cir. 2000) (Rehabilitation Act case) (plaintiff’s claim that he should have been transferred to another job as a reasonable accommodation should be rejected at summary judgment if, “after a full opportunity for discovery, the summary judgment record is insufficient to establish the existence of an appropriate position into which he could have been transferred”). Here, plaintiff’s experts identified a number of possible hearing protection devices during the litigation. See, e.g., supra p. 8. The district court erred in not considering that evidence on the ground that Mlsna did not propose the devices to Union Pacific during the interactive process.

Where, as here, an employer does not make any efforts to work with an employee to seek out accommodations during the interactive process, it is particularly troubling to allow the employer to escape liability just because an accommodation the employer may have found (if it had complied with its interactive-process obligations) was not proposed to it. Consistent with that analysis, decisions by this Court addressing failures by employers to engage in the interactive process have held that plaintiffs must show only that a reasonable accommodation “existed” or “was possible.” E.g., Mays v. Principi, 301 F.3d 866, 870 (7th Cir. 2002), abrogated on other grounds by EEOC v. United Airlines, Inc., 693 F.3d 760 (7th Cir. 2012); see also, e.g., Sears, 417 F.3d at 805 (similar); Stern v. St. Anthony’s Health Ctr., 788 F.3d 276, 292 (7th Cir. 2015) (plaintiff must show reasonable accommodation “could be made” (citation omitted)). Those decisions have never suggested that employees must propose the particular accommodation in question during the interactive process. See also, e.g., Spurling, 739 F.3d at 1062 (“[W]hile an employer’s failure to engage in the interactive process alone is not an independent basis for liability, it is actionable if it prevents identification of an appropriate accommodation for a qualified individual.” (emphasis added) (citation omitted)).

As the en banc Third Circuit explained, “an employer who fails to engage in the interactive process runs a serious risk that it will erroneously overlook an opportunity to accommodate a statutorily disabled employee, and thereby violate the ADA.” Deane v. Pocono Med. Ctr., 142 F.3d 138, 149 (3d Cir.1998) (en banc); see also, e.g., McBride v. BIC Consumer Prods. Mfg. Co., 583 F.3d 92, 101 (2d Cir. 2009) (similar). That is the risk that Union Pacific has run in this case, having admittedly made no attempt to work with Mlsna to seek out other possible accommodations, R.84 at 14. See also, e.g., Fjellestad v. Pizza Hut of Am., Inc., 188 F.3d 944, 953 (8th Cir. 1999) (holding that the fact that the employee did not “specifically request” during the interactive process “any of the accommodations that she now suggests are reasonable” was not “fatal” in a case where an employer did not make a good-faith effort to engage in the interactive process); Snapp, 889 F.3d at 1097 (explaining that where an employer fails to engage in the interactive process in good faith, the “range of possible reasonable accommodations, for purposes of establishing liability for failure to accommodate, can extend beyond those proposed [during the interactive process]” (citation omitted)).[3]

In its summary-judgment briefs, defendant cited two appellate decisions and several district court cases to support its argument that a specific accommodation first identified during litigation is untimely. Those cases are readily distinguishable, however. For example, in the only Seventh Circuit case cited, Hunt-Golliday v. Metropolitan Water Reclamation District, this Court held that the plaintiff’s first request for any accommodation for her disability occurred, at the earliest, during a civil-service hearing that ultimately resulted in the plaintiff’s discharge; the hearing occurred “about 1 1/2 years after her suspension [pending discharge] and long after she filed this [district court] complaint,” which was “way too late.” 104 F.3d 1004, 1013 (7th Cir. 1997) (further noting the plaintiff “failed to present anything at all regarding whether she informed [her employer] of her alleged mental disability and her need for accommodation”); see also id. at 1009 (describing events surrounding hearing). Hunt-Golliday did not address the question presented here: whether an employee who requests an accommodation at the proper time must also specify the precise accommodation that would be appropriate prior to initiating litigation.

The other appellate case that defendant cited, Mole v. Buckhorn Rubber Products, Inc., stated that the plaintiff there could not “expect the employer to read her mind and know she secretly wanted a particular accommodation and then sue the employer for not providing it.” 165 F.3d 1212, 1218 (8th Cir. 1999) (citation and alterations in original omitted). But the employer in Mole had provided the plaintiff with numerous accommodations, and the “problem” with the plaintiff’s contention was that, “prior to receiving a notice of termination[, she] never advised [her employer] she needed additional accommodation, much less what accommodation . . . was needed.” Id. (emphasis added). Here, by contrast, Union Pacific was keenly aware of Mlsna’s need for appropriate hearing protection that would permit him to pass the FRA hearing test.

Indeed, it is undisputed that Union Pacific knew all along that Mlsna had a disability; the company documented his hearing impairment when he was first hired, R.27 at 18, and he was tested again in 2014 and 2015, R.58-2 at 1-2. The company also knew that the Pro Ears Gold did not adequately amplify sounds to allow him to hear and understand speech, a requirement for his job. The obvious accommodation he would need, therefore, was a device with a stronger amplifier that also adequately protected his hearing. Mlsna did not need to identify the precise make and model of the appropriate device during the interactive process. The company knew what was needed; it just made no attempt to locate or even to assist Mlsna in locating such a device. Neither Hunt-Golliday nor Mole would endorse that action.

C. The district court incorrectly imported McDonnell Douglas pretext analysis into Mlsna’s claim for failure to provide reasonable accommodation.

Finally, in evaluating whether Union Pacific should have accommodated Mlsna with the hearing protection device he proposed during the interactive process, the district court mistakenly concluded that Union Pacific could not be liable for failing to provide Mlsna with a reasonable accommodation unless Mlsna could prove that the company’s proffered reason for rejecting the device — that it lacked an NRR — was a pretext for intentional discrimination. S.A. 31.

Pretext is the third step in the familiar three-step burden-shifting proof scheme set forth in McDonnell Douglas, 411 U.S. 792. Under that scheme, once the employer presents evidence that it had a legitimate nondiscriminatory reason for a challenged employment action, the burden shifts to the employee to prove that the proffered reason was a pretext for discrimination. See, e.g., Bultemeyer v. Fort Wayne Cmty. Schs., 100 F.3d 1281, 1283 (7th Cir. 1996). That proof scheme applies to certain disparate-treatment claims. See id. Its “goal” is to “progressively . . . sharpen[] the inquiry into the elusive factual question of intentional discrimination.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993) (second alteration in original) (citation omitted).

But the claim at issue here is for failure to accommodate. This Court has held that “the McDonnell-Douglas burden-shifting method of proof is unnecessary and inappropriate” in a failure-to-accommodate claim. Bultemeyer, 100 F.3d at 1283-84; see also Weigel v. Target Stores, 122 F.3d 461, 463-64 (7th Cir. 1997). Thus, for purposes of his reasonable-accommodation claim, it is irrelevant whether Mlsna can (or cannot) show that Union Pacific’s reason for failing to provide a reasonable accommodation was pretextual; a non-disability-based reason for denying an accommodation is no defense to such a claim. Rather, “if the plaintiff demonstrated that the employer should have reasonably accommodated the plaintiff’s disability and did not, the employer has discriminated under the ADA and is liable.” Lenker, 210 F.3d at 799 (citing Bultemeyer, 100 F.3d at 1283).

As the statute specifies, an employer can defend against a claim for failure to accommodate by proving that the proposed accommodation “would impose an undue hardship on the operation of the business.” 42 U.S.C. § 12112(b)(5)(A); see also US Airways, Inc. v. Barnett, 535 U.S. 391, 401-02 (2002). However, defendant’s summary-judgment briefs did not press this affirmative defense.

CONCLUSION

For the foregoing reasons, the judgment of the district court should be reversed.

Respectfully submitted,

SHARON FAST GUSTAFSON

General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

SYDNEY A.R. FOSTER

Assistant General Counsel

s/ Barbara L. Sloan

BARBARA L. SLOAN

Attorney

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of General Counsel

131 M Street N.E., 5th Floor

Washington, D.C. 20507

(202) 663-4721

barbara.sloan@eeoc.gov

ADDENDUM

PERTINENT STATUTORY AND REGULATORY PROVISIONS

TABLE OF CONTENTS

Americans with Disabilities Act

42 U.S.C. § 12111 (excerpts) .............................................................. A-3

42 U.S.C. § 12112 (excerpt) ................................................................ A-3

29 C.F.R. § 1630.2 (excerpts)............................................................... A-4

29 C.F.R. § 1630.9 (excerpt)................................................................ A-4

29 C.F.R. pt. 1630, app. § 1630.9 (excerpts).......................................... A-4

Process of Determining the Appropriate Reasonable Accommodation.... A-4

Federal Railroad Administration Regulations

49 C.F.R. § 227.115 (excerpts)............................................................. A-7

49 C.F.R. § 242.117 (excerpts)............................................................. A-7

Americans with Disabilities Act

42 U.S.C. § 12111 Definitions

. . .

(8) Qualified individual

The term “qualified individual” means an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. For the purposes of this subchapter, consideration shall be given to the employer's judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job.

(9) Reasonable accommodation

The term “reasonable accommodation” may include—

. . .

(B) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.

42 U.S.C. § 12112 Discrimination

(a) General rule

No covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.

(b) Construction

As used in subsection (a), the term “discriminate against a qualified individual on the basis of disability” includes—

. . .

(5)(A) not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity….

. . .

29 C.F.R. § 1630.2 Definitions

. . .

(o) Reasonable accommodation

. . .

(3) To determine the appropriate reasonable accommodation it may be necessary

for the covered entity to initiate an informal, interactive process with the individual with a disability in need of the accommodation. This process should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.

. . .

29 C.F.R. § 1630.9 Not making reasonable accommodation

. . .

(e) A covered entity is required, absent undue hardship, to provide a reasonable accommodation to an otherwise qualified individual who meets the definition of disability under the “actual disability” prong (§ 1630.2(g)(1)(i)), or “record of” prong (§ 1630.2(g)(1)(ii)), but is not required to provide a reasonable accommodation to an individual who meets the definition of disability solely under the “regarded as” prong (§ 1630.2(g)(1)(iii)).

29 C.F.R. pt. 1630, app. § 1630.9 Not Making Reasonable Accommodation

. . .

Process of Determining the Appropriate Reasonable Accommodation

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.

. . .

When an individual with a disability has requested a reasonable accommodation to assist in the performance of a job, the employer, using a problem solving approach, should:

(1) Analyze the particular job involved and determine its purpose and essential functions;

(2) Consult with the individual with a disability to ascertain the precise job-related limitations imposed by the individual's disability and how those limitations could be overcome with a reasonable accommodation;

(3) In consultation with the individual to be accommodated, identify potential accommodations and assess the effectiveness each would have in enabling the individual to perform the essential functions of the position; and

(4) Consider the preference of the individual to be accommodated and select and implement the accommodation that is most appropriate for both the employee and the employer.

In many instances, the appropriate reasonable accommodation may be so obvious to either or both the employer and the individual with a disability that it may not be necessary to proceed in this step-by-step fashion. For example, if an employee who uses a wheelchair requests that his or her desk be placed on blocks to elevate the desktop above the arms of the wheelchair and the employer complies, an appropriate accommodation has been requested, identified, and provided without either the employee or employer being aware of having engaged in any sort of “reasonable accommodation process.”

However, in some instances neither the individual requesting the accommodation nor the employer can readily identify the appropriate accommodation. For example, the individual needing the accommodation may not know enough about the equipment used by the employer or the exact nature of the work site to suggest an appropriate accommodation. Likewise, the employer may not know enough about the individual's disability or the limitations that disability would impose on the performance of the job to suggest an appropriate accommodation. Under such circumstances, it may be necessary for the employer to initiate a more defined problem solving process, such as the step-by-step process described above, as part of its reasonable effort to identify the appropriate reasonable accommodation.

This process requires the individual assessment of both the particular job at issue, and the specific physical or mental limitations of the particular individual in need of reasonable accommodation. With regard to assessment of the job, “individual assessment” means analyzing the actual job duties and determining the true purpose or object of the job. Such an assessment is necessary to ascertain which job functions are the essential functions that an accommodation must enable an individual with a disability to perform.

After assessing the relevant job, the employer, in consultation with the individual requesting the accommodation, should make an assessment of the specific limitations imposed by the disability on the individual's performance of the job's essential functions. This assessment will make it possible to ascertain the precise barrier to the employment opportunity which, in turn, will make it possible to determine the accommodation(s) that could alleviate or remove that barrier.

If consultation with the individual in need of the accommodation still does not reveal potential appropriate accommodations, then the employer, as part of this process, may find that technical assistance is helpful in determining how to accommodate the particular individual in the specific situation. Such assistance could be sought from the Commission, from State or local rehabilitation agencies, or from disability constituent organizations. It should be noted, however, that, as provided in § 1630.9(c) of this part, the failure to obtain or receive technical assistance from the Federal agencies that administer the ADA will not excuse the employer from its reasonable accommodation obligation.

Once potential accommodations have been identified, the employer should assess the effectiveness of each potential accommodation in assisting the individual in need of the accommodation in the performance of the essential functions of the position. If more than one of these accommodations will enable the individual to perform the essential functions or if the individual would prefer to provide his or her own accommodation, the preference of the individual with a disability should be given primary consideration. However, the employer providing the accommodation has the ultimate discretion to choose between effective accommodations, and may choose the less expensive accommodation or the accommodation that is easier for it to provide. It should also be noted that the individual's willingness to provide his or her own accommodation does not relieve the employer of the duty to provide the accommodation should the individual for any reason be unable or unwilling to continue to provide the accommodation.

. . .

Federal Railroad Administration Regulations

49 C.F.R. § 227.115 Hearing protectors

. . .

(b) Availability of hearing protectors. A railroad shall make hearing protectors available to all employees exposed to sound levels that meet or exceed the action level.

(c) Required use at action level. A railroad shall require the use of hearing protectors when an employee is exposed to sound levels that meet or exceed the action level, and the employee has:

(1) Not yet had a baseline audiogram established pursuant to § 227.109; or

(2) Experienced a standard threshold shift and is required to use hearing protectors under § 227.109(h).

(d) Required use for TWA of 90 dB(A). The railroad shall require the use of hearing protectors when an employee is exposed to sound levels equivalent to an 8–hour TWA of 90 dB(A) or greater. The hearing protectors should be used to reduce sound levels to within those levels required by appendix A of this part.

49 C.F.R. § 242.117 Vision and hearing acuity (effective Jan. 1, 2012).

. . .

(b) After the pertinent date specified in § 242.105(d) or (e), each railroad, prior to initially certifying or recertifying any person as a conductor for any class of service, shall determine that the person meets the standards for visual acuity and hearing acuity prescribed in this section.

. . .

(i) Except as provided in paragraph (j) of this section, each person shall have a hearing test or audiogram that shows the person's hearing acuity meets or exceeds the following thresholds: The person does not have an average hearing loss in the better ear greater than 40 decibels with or without use of a hearing aid, at 500 Hz, 1,000 Hz, and 2,000 Hz. . . .

. . .

[1] EEOC takes no position on any other issue in the case, including (1) whether the district court correctly determined that plaintiff should have submitted a supplemental expert report more promptly, Pl.’s Short App. 32-33; and (2) whether plaintiff otherwise complied with generally applicable rules governing when, in district court litigation, parties must produce or submit evidence upon which they intend to rely.

[2] Citations to page numbers in the district court record refer to page numbers in the header appended by the CM/ECF system.

[3] To be clear, an employer does not have a duty to continue to search for accommodations during litigation. However, at least where an employer did not adequately search for accommodations during the interactive process, and where an accommodation was available during that process but was not discovered by the employer or the employee, then the plaintiff may rely upon that accommodation in litigation in making the argument that a reasonable accommodation was possible.