Sean Reeves, by his parents and next friends, JOHN AND DIANA REEVES v. Jewel Food Stores, Inc.

In the
United States Court of Appeals
For the Seventh Circuit
No. 13‐3782
SEAN R EEVES, by his parents and next
friends, J OHN AND D IANA R EEVES,
Plaintiffs‐Appellants,
v.
J EWEL FOOD STORES, INC.,
Defendant‐Appellee.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 12 cv 06919 — Samuel Der‐Yeghiayan, Judge.
A RGUED MAY 20, 2014 — D ECIDED J ULY 17, 2014
Before KANNE , T INDER , and HAMILTON, Circuit Judges.
KANNE , Circuit Judge. Sean Reeves, who has Down syn‐
drome, sued his former employer, Jewel Food Stores (“Jewel”),
for violating the Americans with Disabilities Act (“ADA”), 42
U.S.C. §§ 12101 et seq. Reeves alleged that Jewel had discrimi‐
nated against him because of his disability in violation of the
ADA. He also claimed that Jewel had denied him a reasonable
accommodation. The district court granted summary judgment

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2 No. 13‐3782
in favor of Jewel on Reeves’ discrimination claim and dis‐
missed the failure‐to‐accommodate claim.
I. BACKGROUND
Jewel Food Companies, a supermarket chain, employed
Sean Reeves as a bagger at one of their stores from June 1997
until his dismissal in April 2005. Reeves has Down syndrome,
a “genetic disorder which varies in severity, but causes lifelong
intellectual disability and developmental delays.” Diseases and
Conditions: Down syndrome, Mayo Clinic (Apr. 19, 2014),
http://www.mayoclinic.org/diseases‐conditions/down‐
syndrome/basics/definition/con‐20020948.
To help him perform essential job tasks, Reeves received an
array of vocational tutoring early in his tenure with Jewel. A
social service agency sent a job coach to work with Reeves, just
as it had done for him throughout his prior jobs. Jewel’s
Service Manager also provided individual training for Reeves’s
daily tasks and helped Reeves calm down when he was
frustrated.
Jewel also instituted supervision policies that applied only
to Reeves. For instance, at the end of each day, Reeves’s
supervisor would complete an evaluation form that either
approved or disapproved of Reeves’s performance in five job
categories. The form would then be sent to Reeves’s parents,
per their request. Reeves, unlike the other baggers, was also
exempted from collecting shopping carts from the parking lot
following an incident in which he was found directing custom‐
ers how to park their cars.

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No. 13‐3782 3
From time to time, Reeves had trouble complying with
Jewel’s workplace rules. For instance, he cursed at a manager
when the table at which he usually ate lunch was used for a
wine tasting. He also once cursed within earshot of a customer
about a woman who complained that Reeves ate her grapes as
he was bagging them.
In March 2005, Reeves took an American flag pin from a
store shelf without paying for it, apparently because he did not
realize the pins were for sale. He was consequently written up
for theft of store merchandise, which, under Jewel’s policy, is
cause for immediate termination regardless of the stolen item’s
value. Jewel, however, decided not to fire him at this time.
Instead, Jewel notified Reeves’s parents, who asked if Jewel
could bring in a job coach. Reeves’s supervisor deemed the
extra instruction unnecessary, and Reeves did not receive the
coaching.
On April 11, 2005, Reeves was terminated for cursing at
another employee in violation of Jewel’s employee policy. The
cashier, who was under 21, had requested managerial assis‐
tance with ringing up alcohol for a customer. Reeves offered to
help, but the cashier declined, stating that Reeves did not have
the requisite training to supervise the transaction. Reeves,
taking offense to the cashier’s comments, said “fuck you, you
stupid blonde,” within earshot of a customer and at least two
other employees. After investigation, Jewel fired Reeves for
violating its disciplinary and anti‐harassment policies.
Reeves filed a charge of discrimination with the Equal
Employment Opportunity Commission. The EEOC concluded
that there was reasonable cause to believe both that Jewel

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discriminated against Reeves because of his disability and that
Jewel engaged in a pattern and practice of denying reasonable
accommodations to a class of disabled employees (which
included Reeves). In keeping with this conclusion, the EEOC
issued Reeves a Right to Sue Notice.
Reeves’s parents and legal guardians, John and Diana, then
sued Jewel on his behalf. Jewel moved for summary judgment,
which the district court granted. In doing so, the court found
that Reeves had waived his failure‐to‐accommodate claim by
not including it in his complaint. It further noted that the claim
would have failed on the merits, citing the numerous accom‐
modations Jewel had made for Reeves during his employment
and the fact that Jewel did not explicitly reject the Reeves’s job
coach suggestion.
II. A NALYSIS
The principal issue on appeal is whether the district court
erred by dismissing Reeves’s failure‐to‐accommodate claim.
Although we disagree with the district court that the claim was
waived, we do agree with its conclusion that the claim fails on
the merits, and ultimately with its grant of summary judgment
in favor of Jewel.
We review the district court’s grant of summary judgment
de novo, taking all facts in the light most favorable to Reeves,
the non‐moving party. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). Summary judgment is appropriate when there
is no genuine issue of material fact and thus nothing for a jury
to decide. Bunn v. Khoury Enters., Inc., — F.3d —, 2014 WL
2198557 at *3 (7th Cir. May 28, 2014).

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No. 13‐3782 5
The district court held that Reeves waived any failure‐to‐
accommodate claim because he did not include it in his
complaint. But his complaint did allege a claim for discrimina‐
tion under the ADA, and ADA discrimination includes a
failure to accommodate. 42 U.S.C. § 12112(b)(5)(A) (defining
“discrimination” to include “not making reasonable accommo‐
dations to the known physical or mental limitations of an
otherwise qualified individual with a disability”). Plaintiffs
need only plead facts, not legal theories, in their complaints.
Hatmaker v. Mem’l Med. Ctr., 619 F.3d 741, 742 (7th Cir. 2010).
Reeves pled a number of facts relevant to his failure‐to‐
accommodate claim in his complaint. This was sufficient to
preserve the argument.
Even though the claim was properly before the court,
however, Reeves cannot make out a valid failure‐to‐accommo‐
date claim. To survive summary judgment on such a claim, a
plaintiff must point to evidence that, if believed by a jury,
would demonstrate that (1) he is a qualified individual with a
disability, (2) his employer was aware of the disability, and (3)
his employer failed to reasonably accommodate that disability.
Ekstrand v. Sch. Dist. of Somerset, 583 F.3d 972, 975 (7th Cir.
2009). There is no dispute as to the first two requirements; the
only issue is whether Reeves presented evidence that Jewel
failed to reasonably accommodate his Down syndrome.
Reasonable accommodations are “[m]odifications or
adjustments to the work environment, or to the manner or
circumstances under which the position held or desired is
customarily performed, that enable [a qualified] individual
with a disability ... to perform the essential functions of that
position[.]” 29 C.F.R. § 1630.2(o)(1)(ii). Once an employee

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requests a reasonable accommodation, the employer must
meet the employee half way and engage in a “flexible, interac‐
tive process” to identify the necessary accommodations. Basden
v. Prof’l Transp., Inc., 714 F.3d 1034, 1038 (7th Cir. 2013). Both
parties are responsible for determining what accommodations
are needed. Bultemeyer v. Fort Wayne Cmty. Schs., 100 F.3d 1281,
1285 (7th Cir. 1996). Where the employee does not provide
sufficient information to the employer to determine the
necessary accommodations, the employer cannot be held liable
for failing to accommodate the disabled employee. Beck v.
Univ. of Wis. Bd. of Regents, 75 F.3d 1130, 1135 (7th Cir. 1996).
After the flag pin incident, the parties agree that Diana
Reeves suggested to Sean’s supervisor that Reeves work with
a job coach again. The supervisor told her not to worry, and
that a job coach was not necessary. Diana Reeves did not press
the issue, and did not ask again. She did not suggest that a job
coach would help prevent future profane outbursts; indeed,
she did not request a job coach after any of Sean’s previous
infractions that involved cursing in front of customers. On
these undisputed facts, Diana Reeves did not make “reason‐
able efforts to help the other party decide what reasonable
accommodations are necessary.” Id. After being told that Jewel
did not think the job coach was necessary, she did not suggest
alternative accommodations or express a fear Sean would have
additional, more serious, behavior problems. A tentative
request for an accommodation to address minor theft does not
imply a request for an accommodation for inappropriate verbal
outbursts that violate the employer’s anti‐harassment policies.

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No. 13‐3782 7
We note that the predicted testimony of the job coach
Reeves sought to certify as an expert witness has no bearing on
our holding. The job coach’s testimony concerned the effective‐
ness of job coaching and concluded that job coaching after the
flag pin incident could have prevented Reeves’s later misbe‐
havior. This may well be true, but as noted above, the original
accommodation request concerned the mistaken theft of a
small piece of merchandise. There was no discussion of
accommodations to prevent Reeves from cursing in front of
customers. The testimony of the job coach does not affect this
conclusion; if it was excluded in error, such error was harm‐
less.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s
grant of summary judgment on Reeves’s failure‐to‐accommo‐
date claim.

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