NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 25, 2010*
Decided May 26, 2010
Before
WILLIAM J. BAUER, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
No. 09‐1576
JOSHUA REYNOLDS, Appeal from the United States District
Plaintiff‐Appellant, Court for the Central District of Illinois.
v. No. 08‐CV‐2081
CHAMPAIGN‐URBANA MASS Michael P. McCuskey,
TRANSIT DISTRICT and WILLIAM Chief Judge.
VOLK, Managing Director,
Defendants‐Appellees.
O R D E R
Joshua Reynolds appeals from the grant of summary judgment on his discrimination
and retaliation claims brought under the Americans with Disabilities Act (“ADA”). See
42
U.S.C. §§ 12112(a), 12203. Reynolds worked for the Champaign‐Urbana Mass Transit
District (“MTD”) as a bus operator from 2001 until 2007, when he was fired for falsifying his
*
After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. APP. P.
34(a)(2)(C).
No. 09‐1576 Page 2
time cards. He filed this suit against MTD and its Managing Director, William Volk,
alleging that the company fired him because of a shoulder injury and retaliated against him
for requesting accommodations for this injury. We affirm.
The following facts are construed in a light most favorable to Reynolds, the
nonmovant. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In July 2004 Reynolds
injured his right shoulder on the job, necessitating surgery and several months of
rehabilitation. In February 2005, his doctors released him to return to work without
restriction. According to Reynolds, after he returned he was subjected to a “harassment
campaign” in which he was reprimanded for fabricated infractions of company rules and
subjected to other unspecified forms of retaliation. Because driving a bus still exacerbated
his shoulder pain, Reynolds also submitted applications for reassignment to other, less
strenuous, company positions and requested permission to take breaks during his driving
shift. But MTD turned down all of these requests.
In late 2006 MTD discovered that Reynolds had been falsifying his time cards and
overstating the amount of time worked on his shifts. MTD investigated the matter,
reviewing time‐stamped video from the buses Reynolds drove, incident reports describing
Reynolds’s falsification of time cards, and bus station records bearing supervisors’ notations
about Reynolds’s end‐of‐shift activities and departure times. The investigation revealed
that for several months Reynolds had been padding his time worked by routinely adding 10
minutes to his shifts for bus inspections that, MTD says, either were never performed or did
not take nearly the amount of time claimed on his time sheets. Reynolds received overtime
pay for the additional time worked, and MTD considered his falsifications to be equivalent
to theft and grounds for termination.
While the investigation was pending, Reynolds visited an orthopedic surgeon to
treat ongoing shoulder pain. The doctor again released Reynolds to return to work without
restriction, but recommended that MTD perform an ergonomic study. Reynolds conveyed
this recommendation to MTD’s medical division on February 2, 2007. At a meeting three
days later, Reynolds’s manager confronted him about the company’s finding that he had
falsified time sheets. Reynolds denied the allegations, but MTD fired him. This suit
followed.
The district judge dismissed Volk from the lawsuit because Reynolds had not
alleged any wrongdoing on his part, and then granted MTD’s motion for summary
judgment. The court explained that Reynolds had not offered any evidence to show that his
shoulder impairment substantially limited any major life activity, and thus he could not
establish disability under the ADA. Even if Reynolds qualified as disabled, the court
added, his claim would still fail: MTD submitted uncontroverted evidence that it fired
No. 09‐1576 Page 3
Reynolds for his misconduct, and not for any reason related to an actual or perceived
disability. As for Reynolds’s retaliation claim, the court concluded that Reynolds failed to
show that he engaged in protected activity before being targeted with retaliation. And even
if his complaints about harassment or his accommodation requests could be considered
protected activity, he did not show that similarly situated employees who did not engage in
such activities were treated more favorably.
On appeal Reynolds generally challenges the district court’s ruling on his
discrimination claim. His appellate brief chronicles his worsening shoulder condition and
complaints he made to supervisors about the effect of his injury on his ability to drive or his
need for accommodation. He also submits for the first time an assortment of documents,
including copies of his post‐trip inspection reports, his doctor’s recommendation regarding
the ergonomic study, and incident reports describing occasions when he ended his shifts
early due to shoulder pain. But this evidence was not before the district court at summary
judgment, and we will not consider it now on appeal. See Dye v. United States,
360 F.3d 744,
748 (7th Cir. 2004). As the nonmoving party, Reynolds had to identify a genuine issue of
material fact as to whether he suffered from a qualifying disability under the ADA. See
Anders v. Waste Mgmt. of Wis., Inc.,
463 F.3d 670, 675 (7th Cir. 2006). But Reynolds did not
submit any evidence to show that his shoulder impairment limited his ability to work or
perform any other major life activity; summary judgment was therefore appropriate. See
FED. R. CIV. P. 56(e)(2).
As for his retaliation claim, see
42 U.S.C. § 12203, Reynolds renews his argument that
the suspicious timing of his termination—three days after his request for an ergonomic
study—presented a triable issue regarding MTD’s motive for firing him. Reynolds can
establish a claim of retaliation using either the direct or indirect methods. See Mannie v.
Potter,
394 F.3d 977, 983 (7th Cir. 2005). Under the direct method, Reynolds could present
direct or circumstantial evidence showing that MTD fired him because he engaged in
statutorily protected activity. See Phelan v. Cook County,
463 F.3d 773, 787‐88 (7th Cir. 2006).
Alternatively, the indirect method required Reynolds to show that he (1) engaged in
statutorily protected activity; (2) performed his job satisfactorily; (3) suffered an adverse
employment action; and (4) was treated less favorably than other similarly situated
employees who did not engage in protected activity. See Squibb v. Memorial Med. Ctr.,
497
F.3d 775, 788 (7th Cir. 2007).
Reynolds’s retaliation claim fails under both tests. Under the direct method,
Reynolds relies mostly on the fact that he was fired shortly after he submitted his request
for an ergonomic study, and he argues that the temporal proximity between these events
reflects MTD’s retaliatory motive. But suspicious timing alone is almost never enough to
satisfy the causation prong of a plaintiff’s burden at summary judgment. See Andonissamy v.
No. 09‐1576 Page 4
Hewlett‐Packard Co.,
547 F.3d 841, 851 (7th Cir. 2008); Armhein v. Health Care Serv. Corp.,
546
F.3d 854, 859 (7th Cir. 2008); Scaife v. Cook County,
446 F.3d 735, 742 (7th Cir. 2006). In light
of MTD’s undisputed evidence that it fired Reynolds solely based on his misconduct, this is
not one of those rare cases where a weak inference regarding suspicious timing alone is
enough to create a triable issue.
Nor can Reynolds make out a prima facie case under the indirect approach. He did
not introduce any evidence to show that similarly situated employees who did not engage
in protected activity received more favorable treatment from MTD. See Mannie,
394 F.3d at
984. In any event, Reynolds cannot show pretext: he did not provide any evidence to rebut
MTD’s position that the company fired him for falsifying his time cards. See Stone v. City of
Indianapolis Pub. Utils. Div.,
281 F.3d 640, 644 (7th Cir. 2002). Although he maintains that
MTD’s investigation was flawed, and he denies all allegations of misconduct, Reynolds
cannot show that MTD did not honestly believe its stated justification for discharging him.
See Mattenson v. Baxter Healthcare Corp.,
438 F.3d 763, 767 (7th Cir. 2006).
Accordingly, we AFFIRM the district court’s judgment.
