Timmons, Dock v. Gen'l Motors Corp ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-3258
DOCK TIMMONS,
Plaintiff-Appellant,
v.
GENERAL MOTORS CORPORATION,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 04 C 3045—Blanche M. Manning, Judge.
____________
ARGUED MARCH 29, 2006—DECIDED DECEMBER 7, 2006
____________
Before BAUER, KANNE, and SYKES, Circuit Judges.
SYKES, Circuit Judge. Dock Timmons (“Timmons”), who
suffers from multiple sclerosis, sued General Motors
(“GM”) for violating the Americans with Disabilities Act
(“ADA”), 42 U.S.C. § 12101 et seq., after GM involuntarily
placed him on disability leave. The district court awarded
summary judgment to GM and Timmons appeals. He
claims the district court applied the wrong legal test to
his case and the evidence establishes a material factual
dispute regarding GM’s reason for placing him on disabil-
ity leave. We affirm.
2 No. 05-3258
I. Background
Timmons began working for GM in 1974, and by 1999
he had become one of only five Customer Activities Man-
agers nationwide. As a Customer Activities Manager,
Timmons handled (among other things) customer relations
issues at GM dealerships within his region and at GM’s
customer call centers in Florida, Texas, and California. His
job required a valid driver’s license—Timmons has one,
though he had not taken a driving test for at least four
years before he was put on disability leave—and a will-
ingness and ability to travel as much as fifty percent of
the time. Timmons attended dealer meetings in Illinois
and other states and represented GM at arbitrations and
court hearings. He also attended monthly meetings at
various locations around central and northern Illinois and
in Wisconsin. From time to time Timmons’s job also
required him to drive to meetings in Ohio and Michigan
and, as already mentioned, to attend to business in
customer call centers in Florida, Texas, and California.
When asked whether he could imagine performing his job
without being able to drive, Timmons responded unequivo-
cally, “No.”
In 1992 Timmons was diagnosed with multiple sclerosis
(“MS”), a disease of the central nervous system with a
variety of symptoms, including visual and sensory impair-
ments and muscle weakness. MS did not stop Timmons’s
ascent at GM, as evidenced by his 1999 promotion to
Customer Activities Manager, but by 2002 it hampered his
ability to walk. GM accommodated Timmons’s condition,
however. It provided Timmons with a motorized scooter
and equipped his car with a lift to get the scooter in and
out more easily. GM also paid for Timmons to rent scooters
when on trips of longer distances. When Timmons told GM
that a home office would help him on days when it was
difficult for him to come to work, GM obliged. GM also
provided Timmons with a modified computer monitor and
No. 05-3258 3
keyboard and installed automatic door openers on its front
door and restroom doors. On more than one occasion
during 2002 and 2003, GM offered Timmons other jobs
that required less travel yet maintained his employment
level and salary. Timmons declined each one because
he believed they would be considered demotions, despite
GM’s assurances to the contrary.
As Timmons’s condition worsened through 2002, his
supervisors became concerned about his ability to drive,
which was integral to his job. Thomas Tyler, Timmons’s
supervisor from 1999 through January 2003, says he
received reports from area service managers and field
personnel that Timmons sometimes drove too slowly on the
highways and held up traffic. Tyler discussed the situation
in 2002 with Timmons and Joyce Saunders, a GM human
resources manager. There was also concern because
Timmons had, at least twice, fallen asleep on the job.
Saunders shared the concerns with two medical doctors
employed by GM, who in turn contacted some of
Timmons’s personal doctors to discuss their concerns. Two
of Timmons’s physicians, Drs. Frank and Yang, reassured
GM that Timmons could drive safely. Dr. Yang agreed to
adjust Timmons’s medication in an effort to curtail
Timmons’s drowsiness. From that point forward there
were no more problems with Timmons falling asleep
at work.
Besides the driving concerns, GM also had reports of
problems with Timmons’s work performance. Timmons
reportedly missed at least three dealer meetings and, on
several occasions, was not in the field when he should
have been. Tyler also received reports from service man-
agers that Timmons was not returning their phone calls,
though Timmons disputes that. Some of Timmons’s
superiors also felt he was not coming into the office as
frequently as he should have been.
4 No. 05-3258
By February 2003 concerns about Timmons’s driving
abilities were heightened by an incident in which Timmons
lost control of his scooter and crashed it in a parking lot.1
Timmons’s new supervisor, James Swinson, also saw
Timmons driving too slowly on the expressways and
“wandering” back and forth as he drove. In addition,
Swinson had information that Timmons’s assistant drove
him to a meeting in Iowa because Timmons was not
comfortable driving. Swinson talked with Timmons about
his concerns during March and May 2003. The possibility
of disability retirement was raised—Timmons says by
Swinson. In fact, Timmons says Swinson had pressured
him for several months to retire or go on disability leave.
During the May meeting, Timmons gave Swinson
permission for GM to speak with his personal doctors.
Timmons wrote Dr. Frank a letter requesting that the
doctor release his medical records to a GM physician.
Eight days after writing the letter, however, Timmons
rescinded his permission. He was concerned GM was
looking for a reason to get rid of him. As a result, GM was
not given access to Timmons’s medical records.
Accordingly, GM asked Timmons to undergo an evalua-
tion by Dr. Roy Lacey, an occupational environmental
medicine specialist employed by GM, and Timmons agreed.
Dr. Lacey handled all GM issues pertaining to employee
health and safety at work, including chronic illnesses,
return-to-work evaluations, and fitness-for-duty evalua-
tions; he also helped find suitable positions for employees
1
The parties dispute whether Timmons hit a pothole he could
not see and then lost control of the scooter or whether he lost
control of the scooter first and then hit a pothole. Because the
case comes to us after summary judgment, we accept, as we
must, Timmons’s version of the story: he hit a pothole at night,
then lost control and crashed.
No. 05-3258 5
with medical restrictions. Swinson met with Dr. Lacey
alone before the examination to describe Timmons’s job
responsibilities. Following the examination, Dr. Lacey
concluded Timmons had optic atrophy in both eyes, an
ataxic gait, severely limited motion in his left arm, and
an inability to grasp with or completely close his left
hand, twitching in some muscles, a “dropped” left foot
(indicating nerve damage in the spine and an increased
likelihood that the right side may also be affected), and an
inability to turn his neck more than forty degrees on the
right and thirty-five degrees on the left (sixty degrees is
the normal range of motion). Dr. Lacey also concluded
Timmons had poor insight because he believed he had no
problems that would prevent him from doing anything
he wanted, including performing all aspects of his job.
Dr. Lacey met again with Swinson after the examination
to confirm Timmons’s job required driving and travel and
to find out whether GM had other suitable positions
it could offer Timmons that did not require driving and
travel. GM had no other positions. Timmons was put on
disability leave that day.
In September 2004, over a year after Dr. Lacey’s exam,
Dr. Frank offered a sworn statement that Timmons was
capable of driving provided the car was specially fitted
with appropriate controls. Timmons remains in GM’s
employ on paid leave.
The district court granted GM’s motion for summary
judgment, concluding that Timmons had not presented
evidence establishing a prima facie case of discrimination
because he had not identified any similarly situated
nondisabled employees who had been treated more favor-
ably. The district court also concluded that Timmons had
not presented evidence showing that the circumstances
of GM’s decision to place him on disability leave made
it more likely than not that the decision was the result
of discrimination in violation of the ADA.
6 No. 05-3258
II. Discussion
Timmons makes two arguments on appeal. First, he
contends that the district court improperly required him to
show that similarly situated employees received more
favorable treatment in order to establish a prima facie
disparate treatment claim under the McDonnell-Douglas
burden-shifting method of proof. According to Timmons, he
was required to show only that the circumstances sug-
gest that his disability was more likely than not the reason
for the adverse employment action. Second, Timmons
maintains that summary judgment should not have been
granted to GM because there was a genuine issue of
material fact about the reason GM put him on leave.
Summary judgment standards are well-known. We
review summary judgments de novo, construing all facts
and reasonable inferences in favor of the nonmoving
party. Harrell v. U.S. Postal Serv., 445 F.3d 913, 918
(7th Cir. 2006). We will affirm a summary judgment
when the pleadings, depositions, answers to interrogato-
ries, and admissions on file, together with any affidavits,
show there is no genuine issue of material fact and
the movant is entitled to judgment as a matter of law.
FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986).
The ADA prohibits employers from discriminating
“against a qualified individual with a disability because
of [his] disability.” 42 U.S.C. § 12112(a). In addition to
prohibiting adverse employment actions against disabled
persons because of their disabilities, the ADA requires
employers to make reasonable accommodations for the
disabilities of qualified individuals. § 12112(b)(5)(A). It is
important for plaintiffs to be clear about whether they
are pressing disparate treatment or failure-to-accom-
modate claims (or both) because the two are analyzed
differently. See, e.g., Hoffman v. Caterpillar, Inc., 256 F.3d
No. 05-3258 7
568, 572-73 (7th Cir. 2001); Weigel v. Target Stores, 122
F.3d 461, 464 (7th Cir. 1997); Bultemeyer v. Ft. Wayne
Cmty. Schs., 100 F.3d 1281, 1283-84 (7th Cir. 1996). This
case may have had elements of both types of claims, but
Timmons has not pressed a failure-to-accommodate claim.
Instead, Timmons calls his claim a disparate treatment
claim, he frames it as a disparate treatment claim, he
analyzes it as a disparate treatment claim, and the dis-
trict court noted that Timmons crafted only a disparate
treatment claim in resisting summary judgment. We
agree. This is a disparate treatment case; Timmons
waived any failure-to-accommodate claim he may have
had. See Weigel, 122 F.3d at 464.
As in other disparate treatment employment discrim-
ination claims, a plaintiff may prove discrimination in
violation of the ADA using one of two methods. Under the
so-called “direct” method, the plaintiff may show either
direct or circumstantial evidence that points to a con-
clusion that the employer acted as it did for illegal rea-
sons. See Sylvester v. SOS Children’s Vills. Ill., Inc., 453
F.3d 900, 902-03 (7th Cir. 2006). The alternative way to
prove discrimination is the familiar burden-shifting
McDonnell Douglas method. See generally McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). Proceeding
under this approach, a plaintiff must first make out a
prima facie case of discrimination. Lawson v. CSX Transp.,
Inc., 245 F.3d 916, 922 (7th Cir. 2001). Once he has done
so, the burden shifts to the employer to articulate a
legitimate nondiscriminatory reason for the adverse
employment action. Id. If the employer makes that show-
ing, the burden shifts once again to the plaintiff to show
the employer’s stated reason is simply pretext for discrimi-
nation. Id. The plaintiff ’s prima facie case typically
requires a showing that the plaintiff was disabled, per-
forming satisfactorily, subjected to adverse employment
action, and treated less favorably than a nondisabled,
8 No. 05-3258
similarly situated person. See, e.g., Rooney v. Koch Air,
LLC, 410 F.3d 376, 380-81 (7th Cir. 2005); Hoffman, 256
F.3d at 572; Amadio v. Ford Motor Co., 238 F.3d 919, 924
(7th Cir. 2001); Rothman v. Emory Univ., 123 F.3d 446,
451 (7th Cir. 1997). At least that is the usual statement
of the test.
But it is not the exclusive statement of the test. The
McDonnell Douglas method of proving discrimination
was not meant to be inflexible. McDonnell Douglas, 411
U.S. at 802 n.13. Sometimes a plaintiff cannot identify
similarly situated employees. See, e.g., Leffel v. Valley Fin.
Servs., 113 F.3d 787, 794 (7th Cir. 1997). To account for
such circumstances, we have said that the fourth prong
(and, actually, the test as a whole) really requires a
showing “that the circumstances surrounding the adverse
action indicate that it is more likely than not that his
disability was the reason for it.” Lawson, 245 F.3d at 922;
see also Weigel, 122 F.3d at 465; Spath v. Hayes Wheels
Int’l-Ind., Inc., 211 F.3d 392, 396-97 (7th Cir. 2000);
Rehling v. City of Chi., 207 F.3d 1009, 1018 n.7 (7th Cir.
2000); Hilburn v. Murata Elecs. N. Am., Inc., 181 F.3d
1220, 1230-31 (11th Cir. 1999); Den Hartog v. Wasatch
Acad., 129 F.3d 1076, 1085 (10th Cir. 1997); Leffel, 113
F.3d at 794; Ennis v. Nat’l Ass’n of Bus. & Educ. Radio,
Inc., 53 F.3d 55, 58-59 (4th Cir. 1995); Crawford v.
Runyan, 37 F.3d 1338, 1341 (8th Cir. 1994). A showing,
for example, that employees who are situated similarly
to the plaintiff in all respects except disability were
treated better may give rise to the inference that the
plaintiff was treated adversely because of his disability.
But there are other ways to show the same thing, and that
is the reason for the broader formulation of the test.
We have commented before on how this alternative
formulation of the McDonnell Douglas test is hardly a true
version of the test. Larimer v. Int’l Bus. Machs. Corp., 370
No. 05-3258 9
F.3d 698, 701 (7th Cir. 2004). After all, if the plaintiff can
produce evidence to satisfy the fourth prong of this more
broadly stated version of the McDonnell Douglas test, he
has no need for the McDonnell Douglas burden-shifting
method to begin with; he has satisfied the direct method
using circumstantial evidence. Both approaches require
the plaintiff to present evidence indicating it is more
likely than not the employer took the adverse action
because of the plaintiff ’s disability. It is often easier to
satisfy the “traditional” McDonnell Douglas test involv-
ing the identification of similarly situated employees.
The plaintiff need not show suspicious circumstances
surrounding the action against him (which may be dif-
ficult in this context); rather, he must show only that
others who are similarly situated but not disabled were
treated better. What is always true, however, is that
whatever evidence or method of proof the plaintiff resorts
to, he must put together a case that permits the inference
that the employer has acted against him based on his
disability. “Any demonstration strong enough to support
judgment in the plaintiff ’s favor if the employer remains
silent will do, even if the proof does not fit into a set
of pigeonholes.” Carson v. Bethlehem Steel Corp., 82 F.3d
157, 159 (7th Cir. 1996); see also O’Connor v. Consol. Coin
Caterers Corp., 517 U.S. 308, 312 (1996).
Other cases in our circuit state the prima facie case
requirements even more generally. We have said a
prima facie case of discrimination is established by
showing that the plaintiff (1) is disabled within the
meaning of the ADA, (2) is qualified to perform the
essential functions of the job with or without accommoda-
tion, and (3) has suffered an adverse employment action
because of his disability. See, e.g., Buie v. Quad/Graphics,
Inc., 366 F.3d 496, 503 (7th Cir. 2004); Dvorak v. Mostardi
Plat Assocs., Inc., 289 F.3d 479, 483 (7th Cir. 2002). The
first two requirements are simply restatements of the
10 No. 05-3258
statutory elements specifying that the plaintiff must be a
“qualified individual with a disability” in order for the
ADA to apply. 42 U.S.C. §§ 12102(2), 12111(8) (defining
“disability” and “qualified individual with a disability”); 42
U.S.C. § 12112 (protecting “qualified individual with a
disability” from discrimination on the basis of his dis-
ability). In other words, if a plaintiff cannot satisfy these
requirements, he is not covered by the ADA. Once the
plaintiff shows he is protected by the ADA, he can satisfy
the third part of the test by showing, using the direct
method or the indirect McDonnell Douglas approach, that
he suffered an adverse employment action because of his
disability. See Hoffman, 256 F.3d at 578 (Manion, J.,
dissenting); Kersting v. Wal-Mart Stores, Inc., 250 F.3d
1109, 1115 (7th Cir. 2001).
Accordingly, an ADA plaintiff in a disparate treatment
case must show that he is protected by the ADA (a “quali-
fied individual with a disability”) and that his employer
violated the ADA by taking adverse action against him
because of his disability. The plaintiff establishes he is
protected by the ADA through evidence that he is dis-
abled within the meaning of the ADA and is qualified to
perform the essential functions of the job with or without
reasonable accommodations. 42 U.S.C. §§ 12102(2),
12111(8), 12112. If he is protected by the ADA, the plain-
tiff may show he has been treated adversely because of
his disability using either the direct method, which
contemplates both direct and circumstantial evidence, or
the indirect method. The indirect method requires a
showing that: (1) the plaintiff was a qualified individual
with a disability (which he will have already established
if he gets this far); (2) he was meeting his employer’s
expectations (this is meant in a different sense than the
threshold inquiry of whether he is qualified for the job
with or without accommodations, which is a question of
ADA coverage); (3) he was subjected to an adverse employ-
No. 05-3258 11
ment action; and (4) the circumstances suggest that the
plaintiff ’s disability was the reason the employer took
adverse action against him. The showing required under
the fourth prong of the indirect method may (not must) be
made by demonstrating similarly situated nondisabled
employees were treated more favorably. If the plaintiff
shows all four of these elements, the employer has the
burden of showing a legitimate, nondiscriminatory reason
for taking adverse action against the plaintiff. If the
employer meets its burden, the employee must show the
employer’s stated reason is pretextual.
Timmons chose to press his claim using the indirect
McDonnell Douglas burden-shifting method. We have
already commented on this method’s similarity to the
direct method in this context, but no matter how Timmons
frames it, he cannot win. Taking as given that Timmons
is disabled (this is undisputed) and assuming also that
Timmons is a qualified individual with a disability under
the ADA (this is disputed), summary judgment was still
proper in this case because Timmons has not shown he
was meeting GM’s expectations, nor is there any evidence
suggesting that GM put him on leave because of his
disability rather than his inability to perform certain
critical aspects of his job.2
First, the record establishes that Timmons was not
meeting GM’s legitimate expectations. There is evidence
that Timmons was not at work and in the field when
required, and also that he failed to return several phone
calls to customers, skipped required meetings, and had his
2
In a rather basic sense, an employee placed on disability leave
has been placed in that status because of his disability, but this
cannot be conclusive for ADA purposes. Otherwise employers
providing this form of employment leave will always be liable for
disability discrimination.
12 No. 05-3258
assistant doing some of his job duties. Timmons disputes
some—but not all—of this evidence. For instance, he
challenges whether his assistant was doing parts of his
job, and he says he returned all his phone calls. Still, he
disputes neither his absences from the field and the office
nor the skipped meetings. Even if we accept, as Timmons
urges, that his past performance reviews establish his
prior satisfactory performance, he has not disputed that
at the time he was placed on leave, he was failing to meet
GM’s legitimate expectations in the foregoing respects.
Before continuing on to the fourth element of the indirect
method of proof, it is worth commenting on whether
Timmons suffered an adverse employment action. GM
says not; Timmons is still employed by GM and receives
the equivalent of his old salary (through a combination of
social security and disability payments) while on disabil-
ity leave. That argument is a stretch. Money is not the
exclusive measure of adverse employment actions. An
adverse employment action must be material—more than
an inconvenience—but it may take many forms. “For
example, . . . a termination of employment, a demotion
evidenced by a decrease in wage or salary, a less distin-
guished title, a material loss of benefits, significantly
diminished material responsibilities, or other indices
that might be unique to a particular situation” all may
indicate an adverse employment action. Kersting, 250 F.3d
at 1115 (quotations omitted); see also generally 42 U.S.C.
2000e-2(a)(1) (Title VII’s general description of adverse
employment action). The inquiry is contextual and here
there is no doubt Timmons’s material responsibilities have
been diminished. Placing Timmons involuntarily on
disability leave was an adverse employment action.
What Timmons must ultimately produce is some evi-
dence suggesting GM’s decision to place him on leave
was based on his disability rather than some other job-
related reason. Leffel, 113 F.3d at 794. As we have dis-
No. 05-3258 13
cussed, this can consist of evidence that similarly situated
nondisabled persons received more favorable treatment or
some other evidence permitting an inference of discrim-
ination. Under the indirect method of proof, this analysis
often overlaps the pretext analysis. Timmons has not
made this showing.
Timmons argues GM had no legitimate business reason
to subject him to Dr. Lacey’s examination. See 42 U.S.C.
§ 12112(d)(4)(A) (prohibiting medical examinations of
employees “unless [the] examination . . . is shown to be
job-related and consistent with business necessity”). He
also says GM had no right to rely exclusively on
Dr. Lacey’s conclusions about his ability to drive safely.
Instead, Timmons contends that he should have been
given a road test, which he considers a more reliable
gauge of his ability to drive.
The undisputed evidence establishes that GM had
legitimate concerns about Timmons’s ability to drive
safely. It had received reports about Timmons driving
too slowly on the highways (indeed, one of Timmons’s
supervisors claims to have seen it himself). Timmons
also reportedly asked his assistant to drive him to a
meeting in Iowa because he was uncomfortable driving,
and he crashed his scooter in a parking lot (although this
accident may be attributable to a pothole). Timmons
does not contend GM did not actually have these con-
cerns or that they were not legitimately job related. GM,
not inappropriately, asked to see Timmons’s medical
records to confirm his fitness for a job that requires a
significant amount of driving. When Timmons ultimately
refused to allow GM to see the records, GM asked him to
submit to an examination—it certainly had good reason to
do so. Dr. Lacey observed a variety of physical impair-
ments and concluded Timmons should not be driving. GM
was entitled to rely on a physician’s recommendation that
14 No. 05-3258
Timmons could not safely drive a car; a road test, though
one option, was not necessary.
Timmons tries to cast GM’s decision as pretextual by
pointing to Dr. Frank’s summer 2002 and summer 2004
medical opinions that Timmons could drive. But GM never
saw those opinions. Timmons kept GM from seeing his
past medical records, and the statement from summer
2004 was made for purposes of this litigation, over fifteen
months after GM made the decision to put Timmons on
disability leave. GM had evidence only that Timmons’s
driving abilities may well be impaired and Dr. Lacey’s
conclusion that Timmons was indeed unfit to drive.
Timmons also argues that he had a clean driving record
and a valid driver’s license. But GM did not have to wait
for Timmons to get a ticket or have an accident before it
could evaluate his fitness to drive one of its vehicles. Cf.
Palmer v. Circuit Court of Cook County, Ill., 117 F.3d 351,
352 (7th Cir. 1997) (no requirement that employer retain
employee who is likely to harm someone as a result of his
disability because that would put “employer on a razor’s
edge—in jeopardy of violating the [ADA] if it fired such
an employee, yet in jeopardy of being deemed negligent
if it retained him and he hurt someone”). GM had evidence
that Timmons’s ability to drive may be deteriorating. His
valid driver’s license does not establish pretext; Timmons
had not had a driving test for at least four years before
Dr. Lacey examined him. Besides, GM is entitled to hold
its drivers to stricter requirements than the State of
Illinois. There is no evidence Dr. Lacey’s medical exam was
tainted or not objective.
Whether Timmons’s evidence is considered under the
direct or indirect method of proof, it is not enough to
survive summary judgment. The undisputed evidence
does not support an inference that GM discriminated
against him because of his disability.
AFFIRMED.
No. 05-3258 15
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-7-06