Kathleen Borkowski v. Valley Central School District

Can a teacher with disabilities, whose disabilities directly affect her capacity to per *134 form her job, insist that her employer provide a teacher’s aide as a form of reasonable accommodation under Section 504 of the Rehabilitation Act, 29 U.S.C. § 794? That question is at the heart of this appeal from the entry by the United States District Court for the Southern District of New York (Charles L. Brieant, Judge) of summary judgment for the defendant Valley Central School District (“the School District”). We acknowledge that, on a proper factual showing, the answer may prove to be “no.” But because we believe that issues of material fact have not been resolved, we vacate the entry of judgment in favor of the School District and remand the matter for further proceedings consistent with this opinion.

I.

In 1972, as a result of a motor vehicle accident, Kathleen Borkowski suffered a major head trauma and sustained serious neurological damage. During long years of difficult rehabilitative therapy, Ms. Borkowski’s condition improved significantly. She was unable to make a complete recovery, however. According to her treating physician and to a psychologist who evaluated her in connection with this litigation, Ms. Borkowski has continuing difficulties with memory and concentration, and as a result has trouble dealing with multiple simultaneous stimuli. In addition, Ms. Borkowski’s balance, coordination, and mobility continue to show the effects of her accident.

In the fall of 1987, Ms. Borkowski applied for the position of library teacher with the School District. During interviews with School District officials, Ms. Borkowski discussed her accident and its lingering consequences. Following these interviews, Ms. Borkowski was appointed to serve as a library teacher at two elementary schools within the school district. Ms. Borkowski’s duties as a library teacher went beyond those of a librarian; she also was responsible for teaching library skills to classes of elementary school students.

Ms. Borkowski’s appointment was for a probationary term. Under New York law, such a term may last up to three years. At the end of the third year, unless the teacher and the school district agree to extend the probationary term for a fourth year, a decision is made whether or not to grant the teacher tenure. If tenure is not granted, the teacher’s employment is ended. See N.Y.Educ.Law § 3012 (McKinney 1981 & Supp.1994).

During her three years of probationary employment, Ms. Borkowski received regular performance evaluations. These were based on observations of Ms. Borkowski’s work by the Superintendent of the School District, James Coonan, the district’s Director of Elementary Education, Robert Schoonmaker, and the principals of the two schools at which Ms. Borkowski taught, Harvey Gregory and John Schmoll. While Mr. Gregory’s evaluations generally were positive, those of Messrs. Schoonmaker and Schmoll were not. Of particular significance was an unannounced observation of Ms. Borkowski’s class by Mr. Schmoll during Ms. Borkowski’s third and final year of probationary employment. Based on his observation, Mr. Schmoll found that Ms. Borkowski had difficulty controlling the class and noted that students had talked, yelled, and whistled without being corrected. Mr. Schmoll also criticized Ms. Borkowski for remaining seated during the lesson. He concluded that little learning had occurred during the observed class.

In the spring of 1990, Mr. Coonan, as Superintendent of the School District, determined that Ms. Borkowski should not be granted tenure. Mr. Coonan informed Ms. Borkowski of this decision on May 1, 1990. Two weeks later, replying to Ms. Borkowski’s inquiry, Mr. Coonan set forth in writing the reasons for the denial of tenure. Mr. Coo-nan focused primarily on what he termed Ms. Borkowski’s poor classroom management; he also noted that it was inappropriate for Ms. Borkowski to remain seated during class. In response, Ms. Borkowsld, citing her disability, requested reconsideration of the tenure decision, but stated that if reconsideration was denied she would resign. Having received no answer from the School District, Ms. Borkowski submitted her resignation on June 1, 1990. Ms. Borkowski subsequently offered to provide the School District with a letter from her neurologist detailing her dis *135 ability. The School District responded that Ms. BorkowsM’s disability “had absolutely nothing to do with” the decision to deny her ■ tenure. The present action ensued.

II.

The basic framework of a claim of employment discrimination under Section 504 of the Rehabilitation Act is well settled. To prevail on her claim, Ms. Borkowski must establish that (1) she is an individual with a disability within the meaning of the Act, (2) she is otherwise qualified to perform the job in question, (3) she was excluded from the job solely because of her disability, and (4) her employer received federal funding. Sector v. Frank, 42 F.3d 741, 746 (2d Cir.1994), cert. denied, — U.S. —, 115 S.Ct. 2279, 132 L.Ed.2d 283 (1995); see also Bates v. Long Island R.R. Co., 997 F.2d 1028, 1035 (2d Cir.), cert. denied, — U.S. —, 114 S.Ct. 550, 126 L.Ed.2d 452 (1993); Guice-Mills v. Derwinski, 967 F.2d 794, 797 (2d Cir.1992); Doe v. New York Univ., 666 F.2d 761, 774 (2d Cir.1981).

For the purposes of its motion for summary judgment, the School District concedes that Ms. Borkowski is an individual with a disability within the meaning of the Act. It is also undisputed that the School District receives federal funds. The matter therefore turns on the second and third elements of the claim, namely, whether Ms. Borkowski was otherwise qualified for the position of tenured library teacher, and whether she was denied that position solely on the basis of her disability.

The School District and the district court misapprehend the nature of the inquiry into whether Ms. Borkowski was otherwise qualified and whether her termination was due to her disability. Ms. Borkowski claims, and the School District concedes, that she was otherwise qualified in a formal sense, in that she had the necessary educational background and certifications to be hired. But the School District, relying on New York Education Law § 3012, maintains that it nevertheless had broad statutory authority to exercise discretion in deciding whether or not to give her tenure. And, in part on that basis, the district court granted summary judgment. We do not question the School District’s discretionary authority to make tenure decisions; that authority, however, is circumscribed by the requirements of Section 504. By determining that Ms. Borkowski’s performance was inadequate without considering whether her known disabilities could be accommodated reasonably, and by relying on that determination to justify denying her tenure, the School District in effect concluded that Ms. Borkowski was not otherwise qualified and that she could be dismissed. It is this decision that brings her claim within the bounds of Section 504, and requires us to examine whether, under the terms of that section, Ms. Borkowski (1) was, in fact, otherwise qualified for tenure, and (2) was denied tenure solely because of her disability. *

1. Was Ms. Borkowski otherwise qualified for the position of tenured library teacher?

Although the phrase “otherwise qualified” is hardly unambiguous on its face, its meaning in the context of an employment discrimination claim is fairly clear: an individual is otherwise qualified for a job if she is able to perform the essential functions of that job, either with or without a reasonable accommodation. See School Bd. v. Arline, 480 U.S. 273, 287 n. 17, 107 S.Ct. 1123, 1131 n. 17, 94 L.Ed.2d 307 (1987); Gilbert v. Frank, 949 F.2d 637, 641-42 (2d Cir.1991). This definition plays off the regulatory language that requires an employer to “make reasonable accommodation to the known physical or mental limitations of an otherwise qualified handicapped applicant or employee unless the [employer] can demonstrate that the accommodation would impose an undue hardship on the operation of its program.” 34 C.F.R. § 104.12(a); 45 C.F.R. § 84.12(a). 1

*136 a. The allocation of the burdens of 'production and persuasion

But what is a reasonable accommodation, and what is an undue hardship? These terms do not appear in the text of Section 504 itself; they are, rather, the creations of the regulations that implement Section 504. See 34 C.F.R. § 104.12; 45 C.F.R. § 84.12.

The regulations define reasonable accommodation only by example:

Reasonable accommodation may include:

(1)making facilities used by employees readily accessible to and usable by handicapped persons, and (2) job restructuring, part-time or modified work schedules, acquisition or modification of equipment or devices, the provision of readers or interpreters, and other similar actions.

34 C.F.R. § 104.12(b); 45 C.F.R. § 84.12(b). And they say nothing about who bears the burden of demonstrating that an accommodation is reasonable.

The definition of undue hardship is more explicit. The regulations state that the following factors are to be considered in determining whether a particular accommodation would cause an undue hardship:

(1) The overall size of the [employerj’s program with respect to number of employees, number and type of facilities, and size of budget;

(2) The type of the [employerj’s operation, including the composition and structure of the recipient’s workforce; and

(3) The nature and cost of the accommodation needed.

34 C.F.R. § 104.12(c); 45 C.F.R. § 84.12(c). The regulations, moreover, appear to place on the employer the burden of producing evidence and persuading the factfinder that an undue hardship would exist. They state: “[An employer! shall make reasonable accommodation to the known physical or mental limitations of an otherwise qualified handicapped applicant or employee unless the [employer] can demonstrate that the accommodation would impose an undue hardship on the operation of its program.” 34 C.F.R. § 104.12(a); 45 C.F.R. § 84.12(a).

Given the rather obscure regulatory language, it is perhaps not surprising that courts have struggled to give content to the terms reasonable accommodation and undue hardship. It is also not surprising, in view of the lack of any direct statutory guidance, that they have found the assignment of the burdens of production and persuasion particularly difficult as to reasonable accommodation.

The D.C. Circuit, for example, places the burden of both production and persuasion on the plaintiff. See Barth v. Gelb, 2 F.3d 1180, 1186 (D.C.Cir.1993), cert. denied, — U.S. —, 114 S.Ct. 1538, 128 L.Ed.2d 190 (1994). The D.C. Circuit divides the issue of reasonable accommodation into two elements. First, the accommodation must be effective— that is, the plaintiff must show that the accommodation allows her to perform the essential functions of the job in question. See Carr v. Reno, 23 F.3d 525, 529 (D.C.Cir.1994). Second, the plaintiff must show that the accommodation is reasonable in terms of the burdens that it places on employers. Barth, 2 F.3d at 1187. It appears that the Barth court requires plaintiffs to demonstrate that a proposed accommodation does not put an unreasonable burden on typical employers in a given industry. If, on the other hand, the employer were to argue that a proposed accommodation was unreasonable in light of factors particular to its own operation, the court would treat the argument as a defense based on undue hardship. And then the burden of proof would fall on the employer, in accordance with the regulations. Id. at 1186-87. 2

*137 We are barred by our precedents from adopting the D.C. Circuit’s approach. See Gilbert, 949 F.2d at 642. In addition, the D.C. Circuit’s analysis raises at least two difficulties. First, it may be contrary to the intent of Congress. In passing the Americans With Disabilities Act, 42 U.S.C. §§ 12101 et seq., which imposes obligations equivalent to those under Section 504, see 29 U.S.C. § 794(d), Congress apparently contemplated that an accommodation that imposed burdens that would be unreasonable for most members of an industry might nevertheless be required of an individual defendant in light of that employer’s particular circumstances. See H.R.Rep. No. 485, 101st Cong., 2d Sess., pt. 3, at 41, reprinted in 1990 U.S.C.C.A.N. 267, at 464. Under the D.C. Circuit’s approach, however, an accommodation that imposed a burden so significant as to be unreasonable “in the run of cases,” Barth, 2 F.3d at 1187, would never be required, because the plaintiff would be unable to carry her burden of persuasion on the question of reasonable accommodation, and the issue of whether the accommodation would unduly burden the particular employer would never be reached.

Second, the employer has far greater access to information than the typical plaintiff, both about its own organization and, equally importantly, about the practices and structure of the industry as a whole. See Prewitt v. United States Postal Serv., 662 F.2d 292, 308 (5th Cir. Unit A Nov. 5, 1981). Requiring a plaintiff not merely to proffer evidence that a proposed accommodation is reasonable, but to bear the risk of nonpersuasion on that issue as well, means that the plaintiffs burden, viewed in the context of all of the other elements that she must also establish to prevail, see Sedor, 42 F.3d at 746, is a heavy one indeed.

In contrast to the D.C. Circuit, the Fifth and Ninth Circuits have essentially placed the burden on the issue of reasonable accommodation, as well as on undue hardship, on the employer. The Fifth Circuit has done this by establishing a series of shifting burdens. The employer bears an initial burden of production, pursuant to which it must “present[] credible evidence that indicates accommodation of the plaintiff would not reasonably be possible.” Prewitt, 662 F.2d at 308. Once the employer has done so, the burden of production shifts to the plaintiff, who must “eom[e] forward with evidence concerning his individual capabilities and suggestions for possible accommodations to rebut the employer’s evidence.” Id. The burden of persuasion, however, remains always with the employer. Id. The Ninth Circuit has adopted the Fifth Circuit’s analysis. See Mantelete v. Bolger, 767 F.2d 1416, 1423-24 (9th Cir.1985).

Our precedents have rejected the approach taken by the Fifth and Ninth Circuits. See Heilweil v. Mount Sinai Hosp., 32 F.3d 718, 722 (2d Cir.1994), cert. denied, — U.S. —, 115 S.Ct. 1095, 130 L.Ed.2d 1063 (1995); Teahan v. Metro-North Commuter R.R. Co., 951 F.2d 511, 515 (2d Cir.1991), cert. denied, — U.S. —, 113 S.Ct. 54, 121 L.Ed.2d 24 (1992); Gilbert, 949 F.2d at 642. The approach of these two circuits does not run into direct difficulties with the regulatory language. It does have a consequence, however, that the courts do not discuss and appear not to recognize. In effect, it puts on the employer the burden of demonstrating that the plaintiff is not otherwise qualified for employment. See Gilbert, 949 F.2d at 642. A plaintiff is otherwise qualified only if she can perform the essential functions of her job with or without reasonable accommodation. And the Fifth and Ninth Circuits’ approach essentially places on the employer both the initial burden of production and the ultimate burden of persuading the factfinder that no reasonable, effective accommodation exists.

This court charts a middle course. Under our approach, the plaintiff bears the burden of production and persuasion on the issue of whether she is otherwise qualified for the job in question. Heilweil, 32 F.3d at 722; Teahan, 951 F.2d at 515; Doe, 666 F.2d at 776-77. A plaintiff cannot be considered *138 “otherwise qualified” unless she is able, with or without assistance, to perform the essential functions, of the job in question. Arline, 480 U.S. at 287 n. 17, 107 S.Ct. at 1131 n. 17; Gilbert, 949 F.2d at 641-42. It follows that the plaintiff bears the burden of proving either that she can meet the requirements of the job without assistance, or that an accommodation exists that permits her to perform the job’s essential functions.

Whether a proposed accommodation is reasonable, however, is another question. “Reasonable” is a relational term: it evaluates the desirability of a particular accommodation according to the consequences that the accommodation will produce. This requires an inquiry not only into the benefits of the accommodation but into its costs as well. See Vande Zande v. Wisconsin Dep’t of Admin., 44 F.3d 538, 542 (7th Cir.1995). We would not, for example, require an employer to make a multi-million dollar modification for the benefit of a single individual with a disability, even if the proposed modification would allow that individual to perform the essential functions of a job that she sought. In spite of its effectiveness, the proposed modification would be unreasonable because of its excessive costs. In short, an accommodation is reasonable only if its costs are not clearly disproportionate to the benefits that it will produce. Id. at 542-43; cf. Barth, 2 F.3d at 1187 (an accommodation may be unreasonable if its costs are excessive). 3

As to the requirement that an accommodation be reasonable, we have held that the plaintiff bears only a burden of production. Gilbert, 949 F.2d at 642. This burden, we have said, is not a heavy one. Id. It is enough for the plaintiff to suggest the existence of a plausible accommodation, the costs of which, facially, do not clearly exceed its benefits. Once the plaintiff has done this, she has made out a prima facie showing that a reasonable accommodation is available, and the risk of nonpersuasion falls on the defendant. Id.

At this point the defendant’s burden of persuading the factfinder that the plaintiffs proposed accommodation is unreasonable merges, in effect, with its burden of showing, as an affirmative defense, that the proposed accommodation would cause it to suffer an undue hardship. For in practice meeting the burden of nonpersuasion on the reasonableness of the accommodation and demonstrating that the accommodation imposes an undue hardship amount to the same thing. See, e.g., Arline, 480 U.S. at 287 n. 17, 107 S.Ct. at 1131 n. 17 (“Accommodation is not reasonable if it either imposes ‘undue financial and administrative burdens’ on a grantee, or requires ‘a fundamental alteration in the nature of [the] program.’ ” (citations omitted)); Gilbert, 949 F.2d at 642 (equating, through citation to the regulations, the employer’s burden of showing that an accommodation is not reasonable with the employer’s burden on undue hardship); Hall v. United States Postal Serv., 857 F.2d 1073, 1080 (6th Cir.1988) (stating that an accommodation is not reasonable if it imposes an undue hardship on the employer).

*139 Undue hardship is not a self-explanatory concept, however. As we have already noted, the regulations implementing Section 504 go some distance in giving substance to the bare phrase. They require consideration of:

(1) The overall size of the recipient’s program with respect to number of employees, number and type of facilities, and size of budget;

(2) The type of the recipient’s operation, including the composition and structure of the recipient’s workforce; and

(3) The nature and cost of the accommodation needed.

34 C.F.R. § 104.12(b); 45 C.F.R. § 84.12(b); cf. 42 U.S.C.A. § 12111(10) (defining undue hardship under the Americans With Disabilities Act). But even this list of factors says little about how great a hardship an employer must bear before the hardship becomes undue. Does Section 504 require, for example, that employers be driven to the brink of insolvency before a hardship becomes too great? We think not. Cf. Jeffrey 0. Cooper, Comment, Overcoming Barriers to Employment: The Meaning of Reasonable Accommodation and Undue Hardship in the Americans with Disabilities Act, 139 U.Pa. L.Rev. 1423, 1448 (1991) (noting that, during the debate over the Americans with Disabilities Act, Congress considered and rejected a provision that would have defined an undue hardship as one that threatened the continued existence of the employer). Similarly, where the employer is a government entity, Congress could not have intended the only limit on the employer’s duty to make reasonable accommodation to be the full extent of the tax base on which the government entity could draw. See Vande Zande, 44 F.3d at 542-43.

What, then, does undue hardship mean? We note that “undue” hardship, like “reasonable” accommodation, is a relational term; as such, it looks not merely to the costs that the employer is asked to assume, but also to the benefits to others that will result. Id. at 543. The burden on the employer, then, is to perform a cosVbenefit analysis. In a sense, of course, that is what the plaintiff also had to do to meet her burden of making out a prima facie case that a reasonable accommodation existed. But while the plaintiff could meet her burden of production by identifying an accommodation that facially achieves a rough proportionality between costs and benefits, an employer seeking to meet its burden of persuasion on reasonable accommodation and undue hardship must undertake a more refined analysis. And it must analyze the hardship sought to be imposed through the lens of the factors listed in the regulations, which include consideration of the industry to which the employer belongs as well as the individual characteristics of the particular defendant-employer. If the employer can carry this burden, it will have shown both that the hardship caused by the proposed accommodation would be undue in light of the enumerated factors, and that the proposed accommodation is unreasonable and need not be made. 4

Despite the ambiguities of the statutory and regulatory language, we believe that the resulting standards should not prove difficult to apply. First, the plaintiff bears the burden of proving that she is otherwise qualified; if an accommodation is needed, the plaintiff must show, as part of her burden of persuasion, that an effective accommodation exists that would render her otherwise qualified. On the issue of reasonable accommodation, the plaintiff bears only the burden of identifying an accommodation, the costs of which, facially, do not clearly exceed its benefits. These two requirements placed on the plaintiff will permit district courts to grant summary judgments for defendants in cases in which the plaintiff’s proposal is either clearly ineffective or outlandishly costly. *140 Second, we do not at all intend to suggest that employers, in attempting to meet their burden of persuasion on the reasonableness of the proposed accommodation and in making out an affirmative defense of undue hardship, must analyze the costs and benefits of proposed accommodations with mathematical precision. District courts will not be required to instruct juries on how to apply complex economic formulae; a common-sense balancing of the costs and benefits in light of the factors listed in the regulations is all that is expected.

b. Ms. Borkowski’s claim

With these standards in mind, we proceed to analyze Ms. Borkowski’s claim. Ms. Bor-kowski concedes that her performance was inadequate, and that she was unable to meet the School District’s legitimate expectations without help. She maintains, however, that with the provision of a teacher’s aide to assist her in maintaining classroom control, she would be able to perform all of the functions of a library teacher, and therefore was otherwise qualified. She further contends that the provision of a teacher’s aide is not unreasonable.

i. Ms. Borkowski’s ability to •perform, the essential functions of her job

In evaluating Ms. Borkowski’s claim that she could perform all of the essential functions of a tenured library teacher, we encounter a difficulty: it is not immediately apparent what the essential functions of Ms. Borkowski’s job were. In denying Ms. Borkowski tenure, the School District focused primarily on Ms. Borkowksi’s poor classroom management. But is classroom management — the ability to maintain appropriate behavior among the students — an essential function of a tenured library teacher’s job? We might intuitively think so. But Section 504 does not permit us to rely on intuition— indeed, unthinking reliance on intuition about the methods by which jobs are to be performed and how an individual’s disabilities relate to those methods is among the barriers that the Rehabilitation Act was designed to overcome. Cf. Alexander v. Choate, 469 U.S. 287, 296-97, 105 S.Ct. 712, 717-18, 83 L.Ed.2d 661 (1985) (stating that one of the purposes of the Rehabilitation Act was to overcome the effects of entrenched attitudes of “benign neglect” toward individuals with disabilities). To avoid unfounded reliance on uninformed assumptions, the identification of the essential functions of a job requires a fact-specific inquiry into both the employer’s description of a job and how the job is actually performed in practice. See Hall, 857 F.2d at 1079.

Determining what is an essential part of Ms. Borkowski’s job and examining in detail the manner in which a teaching aide might assist Ms. Borkowski in maintaining classroom control are of critical importance to this case because those inquiries establish the framework for determining whether Ms. Borkowski has met her burden of showing that she is otherwise qualified. As we noted earlier, an individual who cannot perform the essential functions of a job, either with or without assistance, is not otherwise qualified within the meaning of Section 504. It follows that an employer is not required to accommodate an individual with a disability by eliminating essential functions from the job. Gilbert, 949 F.2d at 642; see also Tuck v. HCA Health Servs., Inc., 7 F.3d 465, 472 (6th Cir.1993); Bradley v. University of Texas M.D. Anderson Cancer Ctr., 3 F.Bd 922, 925 (5th Cir.1993), cert. denied, — U.S. —, 114 S.Ct. 1071, 127 L.Ed.2d 389 (1994). And so we have held, for instance, that individuals whose physical condition precludes them from engaging in heavy lifting, and who seek jobs for which such lifting is shown to be an essential function, need not be accommodated by shifting responsibility for the lifting to other individuals. Gilbert, 949 F.2d at 643-44.

Admittedly, then, having someone else do part of a job may sometimes mean eliminating the essential functions of the job. But at other times providing an assistant to help with a job may be an accommodation that does not remove an essential function of the job from the disabled employee. Thus, for example, a visually impaired administrator or clerk may be provided with a reader. See Nelson v. Thornburgh, 567 F.Supp. 369, 382 (E.D.Pa.1983), aff'd, 732 F.2d 146 (3d Cir.1984), *141 ce rt. denied, 469 U.S. 1188, 105 S.Ct. 955, 83 L.Ed.2d 962 (1985); 34 C.F.R. § 104.12; 45 C.F.R. § 84.12. What matters to that individual’s job is not the ability to read per se, but rather the ability to take in, process, and act on information. The provision of a reader in these circumstances does not eliminate an essential function, but rather permits the individual with a disability to perform that essential function.

The accommodation suggested by Ms. Borkowski appears, at first blush, to resemble more closely one that would eliminate an essential function of a library teacher in a classroom setting than one that would permit Ms. Borkowski to perform that function. Yet, viewing the record at this stage of the proceedings in the light most favorable to Ms. Borkowski, we-cannot say that no reasonable jury could conclude otherwise. See Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1223-24 (2d Cir.1994). This is especially so since the regulations implementing Section 504 explicitly contemplate that teachers with disabilities may require the assistance of teachers’ aides. See 45 C.F.R. Part 84 Appendix A at 376.

A number of factors might be relevant in the present case. One might be the age of the students that Ms. Borkowski taught. We. know that they were elementary school students, but, within that category, children of different ages may require different degrees of supervision. Another would be the availability of teacher’s aides within the School District. We know from the record that Ms. Borkowski was provided with an aide to assist her in the performance of her library duties, although not of her teaching duties. But were other teachers within the school system provided with teacher’s aides to assist in maintaining appropriate student behavior? If so, then classroom management might not be considered an essential function.

Under the circumstances of this case, three conclusions are possible: either (a) classroom management was an essential function of Ms. Borkowski’s job, and Ms. Borkowski’s proposed accommodation would eliminate that function; or (b) classroom management was an essential function of Ms. Borkowski’s job, but providing Ms. Borkow-ski with an assistant would permit her to perform that function, though with assistance; or (c) classroom management was not an essential function of Ms. Borkowski’s job, and it does not matter whether Ms. Borkow-ski’s proposed accommodation would result in her performing the function, albeit with assistance, or in the reassignment of that function to the teacher’s aide. Only the first of these conclusions would support a grant of summary judgment in favor of the School District. And we cannot say that such a conclusion is required on the record as it currently exists.

To recapitulate: Showing that an accommodation is available that would allow the plaintiff to perform the essential functions of her job is an element of the plaintiffs case. Therefore, the burden of showing that the essential functions of the job can be performed is also on the plaintiff. But since Section 504 does not allow us to rely on intuition, once the plaintiff has introduced evidence that an accommodation exists that permits her to perform the job at the same level as a non-disabled employee, a fact question has been created. Gilbert, 949 F.2d at 642. It is quite possible that, at this point, a defendant can bring in evidence such that a factfinder could decide that the plaintiff could not actually perform the essential functions of the job; it is even possible that the defendant can bring in evidence that establishes as a matter of law that the proposed accommodation does not allow the plaintiff to meet the essential functions of the job. In either case, the burden of persuasion on this issue, the existence of an effective accommodation, remains with the plaintiff.

Ms. Borkowski has introduced evidence that an accommodation — provision of an aide — is available and would allow her to perform the essential functions of a tenured library teacher. Ms. Borkowski therefore has established, as a prima facie matter, that an effective accommodation exists. The School District to date has not brought in any evidence that would permit a court to rule as a matter of law that Ms. Borkowski’s performance would be inadequate even with the proposed accommodation or that the accommodation would eliminate the essential *142 functions of the job. Accordingly, an issue of fact remains as to whether Ms. Borkowski’s proposed accommodation would render her otherwise qualified.

ii. Ms. Borkowski’s prima facie showing of reasonableness

Turning, then, to the reasonableness of Ms. Borkowski’s proposed accommodation, we conclude that Ms. Borkowski has met her burden of production. The proposed accommodation plainly falls within the range of accommodations that may, in a general sense, be considered reasonable in light of their costs and benefits. Both the regulations implementing Section 504 and the cases applying the Rehabilitation Act contemplate the possibility that the use of assistants may be reasonable accommodations. See 34 C.F.R. § 104.12(b) (“Reasonable accommodation may include: ... (2) ... the