Squibb, Mary R. v. Memorial Medical ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-2389
MARY R. SQUIBB,
Plaintiff-Appellant,
v.
MEMORIAL MEDICAL CENTER,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 04 C 3097—Jeanne E. Scott, Judge.
____________
ARGUED MAY 21, 2007—DECIDED AUGUST 16, 2007
____________
Before RIPPLE, WOOD and EVANS, Circuit Judges.
RIPPLE, Circuit Judge. Mary Rios Squibb brought this
action against her former employer, Memorial Medical
Center (“Memorial”), claiming violations of the Americans
with Disabilities Act (“ADA” or “Act”) and the Illinois
Workers Compensation Act (“IWCA”). The district court
granted summary judgment in favor of Memorial on the
ADA claims and declined to exercise supplemental juris-
diction over the IWCA state law claims. Ms. Squibb now
appeals the grant of summary judgment on the ADA
claims. For the reasons set forth in this opinion, we affirm
the judgment of the district court.
2 No. 06-2389
I
BACKGROUND
A. Facts
Ms. Squibb began working for Memorial in 1990 as a
certified nurse assistant and remained there after obtaining
her license as a registered nurse. Between 1993 and 2000,
Ms. Squibb sustained three back injuries in the course of
her duties. Each injury occurred when she had attempted
to lift or move a patient. While recovering from her first
injury, Ms. Squibb had certain temporary lifting restrictions
and an attendant corrective surgery. Eventually, she was
released to work without restrictions.
After the third back injury in 2000, she again required
surgery and a significant recovery period. Prior to the
surgery, her physician, Dr. Stephen Pineda, placed her on
several restrictions. She was not to lift in excess of 5
pounds, push or pull, sit or stand for extended periods, or
bend or stoop. In April 2001, following a surgery in
December 2000, she was returned to “light-duty” work. She
could lift no more than 10 pounds and could work for only
four hours each day. Ms. Squibb stated in her deposition
that she sometimes was required to push a wheelchair
while on “light-duty,” but that she generally did not return
to patient care duties and received help with patient lifting
whenever necessary. During this period she received an
additional temporary assignment within her restrictions.
Ms. Squibb gradually was advanced to working five days
per week and was permitted by her physician to return to
patient care. However, the ten-pound lifting restriction
initially remained in place, and, accordingly, she remained
in temporary, clerical, non-nursing positions until August
2002. Unhappy with her inability to work in a patient care
No. 06-2389 3
nursing capacity, Ms. Squibb requested a further release.
Dr. Pineda loosened her lifting restriction to allow lifts of
up to fifty pounds, but informed her that she likely had
reached maximum post-surgical improvement. Her
restriction would be permanent.
With this additional release on the lifting restrictions, Ms.
Squibb was transferred to a temporary light-duty RN
position. By December 2002, however, the restriction was
confirmed to be permanent, and Memorial was notified.
Memorial, in turn, communicated to Ms. Squibb that she
would have to look for a permanent position that would
accommodate her permanent restrictions because she
would no longer be held in temporary assignments. Ms.
Squibb characterizes this communication as a termination;
Memorial claims she was placed on leave. At the end of
January 2003, Ms. Squibb filed an EEOC charge in which
she claimed that she was terminated because of her disabil-
ity in violation of the ADA.
In January 2003, Ms. Squibb underwent a functional
capacity evaluation (“FCE”) required by Memorial to
assess her physical abilities before another appropriate
position could be found for her. The results of the FCE
revealed that Ms. Squibb could kneel, crouch, stand or sit
“continuously,” that she could twist “frequently” and that
she could bend “occasionally.” R.40-15 at C. Her lifting
maximum in the test was roughly 25-30 pounds, but she
could do this only “rarely.” Id. In continuous lifting or
carrying, she was limited to roughly 5-10 pounds. She
could push and pull upwards of fifty pounds rarely, but,
again, the FCE revealed that, on a continuous basis, she
would be limited to significantly lighter loads of about 15
pounds. The written text accompanying the FCE stated that
Ms. Squibb was in a “[d]econditioned state which limited
4 No. 06-2389
[her] material handling and climbing abilities.” Id. at B. It
otherwise reported that she was “currently functioning at
a light physical demands level, well under the 50# perma-
nent restriction placed on her by her physician.” Id.
Following this test, which concluded that her “abilities
do not match the physical demands of a registered nurse at
Memorial,” id., Ms. Squibb began working as a patient
placement coordinator, a position which she was told
would fit her physical limitations. In the approximately
three months that she held the position, between February
and May 2003, she claims that she twice was asked to
perform duties outside her physician-imposed restrictions.
She missed several days of work for health-related reasons
during this period and she provided physicians’ notes for
these absences. She received lukewarm performance
ratings in this position, and, apparently in response to her
absences, Memorial placed her on administrative leave
lasting until April 2004.
Ms. Squibb brought the present action at the end of April
2004, but her employment odyssey with Memorial contin-
ued. In June 2004, Ms. Squibb provided another letter from
Dr. Pineda that stated that she could return to light duty
with exact limits to be determined by another FCE. Memo-
rial responded by asking whether the lifting restrictions
remained in place; at Ms. Squibb’s request, no additional
medical information was provided.
She applied for additional positions in the field of local
medical review policy, for which she believes she was
qualified, and for one additional position recommended by
Memorial’s human resources personnel as a clinical case
manager. Memorial eventually filled one of the local
medical review policy positions with an employee it
contends had more relevant experience; it eliminated the
No. 06-2389 5
additional position without filling it. Memorial offered Ms.
Squibb the clinical case manager position, but she declined
because she believed the job requirements to be outside her
physical restrictions. In January 2005, Memorial terminated
Ms. Squibb for failure to return from leave when offered
the clinical case manager position.
B. District Court Proceedings
Ms. Squibb’s ten-count complaint against Memorial
alleged that Memorial had violated the ADA at various
times during her employment relationship. The bases for
her claims were essentially that Memorial: (1) failed to
reasonably accommodate her disability; (2) wrongfully
terminated her in December 2002 because of her disability
or perceived disability, and terminated her again in
January 2005 because she refused a position that she was
physically unable to perform because of her disability; (3)
refused to hire her for either of the two local medical
review policy positions because of her disability; (4)
refused to hire her for the local medical review policy
positions in retaliation for her January 2003 EEOC charge
and for filing the instant lawsuit in April 2004; and (5)
terminated her in January 2005, also in retaliation for her
charge and her lawsuit. She also alleged that she was
wrongfully discharged in violation of the IWCA in Decem-
ber 2002 and January 2005.
Memorial moved for summary judgment on all claims.
The district court granted that motion on the ADA claims
and declined to exercise supplemental jurisdiction over the
IWCA claims. The court ruled that: (1) Ms. Squibb was not
disabled; (2) Ms. Squibb was not a qualified individual
with a disability because no reasonable accommodation
6 No. 06-2389
would allow her to perform the essential functions of the
patient care RN positions she sought; and (3) Ms. Squibb
had not produced direct evidence of discrimination in
support of her retaliation charge nor had she met the
requirements of a prima facie case under the indirect
method. Ms. Squibb timely appeals the entry of judgment
against her.
II
DISCUSSION
We review the district court’s grant of summary judg-
ment de novo, construing all facts and inferences in the
light most favorable to the nonmoving party, here, Ms.
Squibb. Timmons v. Gen. Motors Corp., 469 F.3d 1122, 1125
(7th Cir. 2006). Summary judgment is appropriate where
the pleadings, depositions, answers to interrogatories, and
admissions on file, together with any affidavits, show that
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).
Once the movant has met this burden, in order to survive
summary judgment, the nonmoving party must make a
sufficient showing of evidence for each essential element of
its case on which it bears the burden at trial. Celotex Corp.,
477 U.S. at 322-23. The nonmoving party cannot succeed by
resting on its pleadings; it must provide evidence on which
a jury could reasonably find in its favor. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986).
A.
Ms. Squibb claims that Memorial violated the ADA by
failing to reasonably accommodate her disability, failing to
No. 06-2389 7
hire her because of her disability or perceived disability
and terminating her because of her disability or perceived
disability. The ADA’s prohibition on employment discrimi-
nation provides,
No covered entity shall discriminate against a qualified
individual with a disability because of the disability of
such individual in regard to job application proce-
dures, the hiring, advancement, or discharge of em-
ployees, employee compensation, job training, and
other terms, conditions, and privileges of employment.
42 U.S.C. § 12112(a) (emphasis added). “A plaintiff seeking
to avoid summary judgment must demonstrate that there
is at least a genuine issue of material fact as to whether he
is disabled, whether he can perform the essential functions
of the position, and whether he has suffered an adverse
employment action because of his disability.” Kupstas v.
City of Greenwood, 398 F.3d 609, 611 (7th Cir. 2005).
The ADA defines “disability” as “(A) a physical or
mental impairment that substantially limits one or more of
the major life activities of [the] individual; (B) a record of
such an impairment; or (C) being regarded as having such
an impairment.” 42 U.S.C. § 12102(2). Ms. Squibb claims
that she has a “disability,” either under subsection (A),
because she has an impairment that substantially limits
major life activities, or under subsection (C), because
Memorial regarded her as having such an impairment. The
district court determined that there were no material facts
in dispute, and Ms. Squibb was not disabled as a matter of
law.
Viewing the evidence in the light most favorable to Ms.
Squibb, her physician-imposed restrictions and Memorial’s
own 2003 FCE demonstrate that her back injuries limit her
8 No. 06-2389
movement and her physical strength in a number of ways.
She cannot lift objects over 25-30 pounds; she cannot bend
or twist continuously; she struggles, in varying degrees,
with pulling, pushing and climbing.1
To determine whether her back condition, with its
attendant physical consequences renders Ms. Squibb
“disabled” for purposes of the statute, we ask whether it
“substantially limits” her in any major life activity. The
regulations provide that an individual is substantially
limited in such activities if she is unable to perform such an
activity or is “[s]ignificantly restricted as to the condition,
manner or duration under which” she can perform it, as
compared to an average person in the general population.
29 C.F.R. § 1630.2(j)(1).2 Whether a particular impairment
substantially limits a major life activity is a case-specific,
individualized inquiry. Kampmier v. Emeritus Corp., 472
F.3d 930, 938 (7th Cir. 2007). Ms. Squibb claims to be
limited in her ability to work, sleep, care for herself, walk,
1
Memorial does not contend that Ms. Squibb’s back condition
is not an “impairment” within the meaning of the statute and
the regulations, and we therefore take this as established for
present purposes.
2
The Supreme Court has noted that it is unclear what weight
should be given to the regulations and guidance issued by the
EEOC, because the agency has not been given authority to
interpret the term “disability” as contained in the ADA. Toyota
Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 194 (2002); see
29 C.F.R. § 1630.2(g)-(l). This court continues to use the guidance
provided by the regulations, while acknowledging that they
cannot “obscure the ADA’s ‘demanding standard for qualifying
as disabled.’ ” EEOC v. Sears, Roebuck & Co., 417 F.3d 789, 800-01
(7th Cir. 2005) (quoting Toyota Motor Mfg., 534 U.S. at 197).
No. 06-2389 9
sit and engage in sexual intercourse, all of which she
identifies as major life activities.3 We consider each in turn.
1.
Ms. Squibb claims that, because of her back injury, she is
substantially limited in the major life activity of working.
This court previously has held that working is a major life
activity and the parties have not asked the court to recon-
sider that conclusion.4 See Kupstas, 398 F.3d at 612; 29 C.F.R.
§ 1630.2(i), (j)(3). In order to be substantially limited in the
major life activity of working, the regulations require that
the individual be “significantly restricted in the ability to
perform either a class of jobs or a broad range of jobs in
various classes as compared to the average person having
comparable training, skills and abilities.” 29 C.F.R.
§ 1630.2(j)(3)(i). A demonstrated “inability to perform a
single, particular job” does not render an individual
substantially limited in the major life activity of working.
Id.We previously have expressed doubt that an inability to
lift more than ten pounds, which in turn restricts an
3
The regulations define “major life activities” to include:
“caring for oneself, performing manual tasks, walking, seeing,
hearing, speaking, breathing, learning, and working.” 29 C.F.R.
§ 1630.2(i).
4
The Supreme Court has not decided whether working
should be classified as a major life activity, but it has acknowl-
edged the “conceptual difficulty” and circularity that this
classification might entail. Sutton v. United Air Lines, Inc., 527
U.S. 471, 492 (1999); see also Toyota Motor Mfg., 534 U.S. at 200;
EEOC v. Schneider Nat’l, Inc., 481 F.3d 507, 511 (7th Cir. 2007).
10 No. 06-2389
individual’s employment opportunities in heavy-duty jobs,
could constitute a disability within the meaning of the
statute. See Mays v. Principi, 301 F.3d 866, 869-70 (7th Cir.
2002) (noting that, although not raised by the parties, the
court did not wish to endorse by its silence the view that a
nurse whose back injuries restricted her lifting to a maxi-
mum of ten pounds was disabled within the meaning of
federal disability law); see also id. at 869 (“The physician
who determined the severity and duration of her back
injury thought she could return to her job as a light-duty
nurse. The number of Americans restricted by back prob-
lems to light work is legion. They are not disabled.”);
Contreras v. Suncast Corp., 237 F.3d 756, 763 (7th Cir. 2001)
(holding that an individual who was “unable to lift in
excess of 45 pounds for a long period of time, unable to
engage in strenuous work, and unable to drive a forklift for
more than four hours a day” was not substantially limited
in the major life activity of working).
These decisions find support in the direction provided by
the Supreme Court when a plaintiff’s claimed disability
limits her employment opportunities:
To be substantially limited in the major life activity of
working . . . one must be precluded from more than
one type of job, a specialized job, or a particular job of
choice. If jobs utilizing an individual’s skills (but perhaps
not his or her unique talents) are available, one is not
precluded from a substantial class of jobs. Similarly, if a
host of different types of jobs are available, one is not
precluded from a broad range of jobs.
Sutton v. United Air Lines, Inc., 527 U.S. 471, 492 (1999)
(emphasis added).
As both the EEOC regulations and Sutton explicitly state,
Ms. Squibb’s inability to work any longer in her nursing job
No. 06-2389 11
of choice, patient care nursing in a general services hospi-
tal, does not demonstrate that she is substantially limited
in the major life activity of working.
In an attempt to fit within the Supreme Court’s descrip-
tion, Ms. Squibb contends that her limitation precludes her
from performing all nursing positions involving patient
care. She claims that this preclusion demonstrates that she
is significantly restricted in performing a “class of jobs.”
However, as we have stated, a “ ‘class of jobs’ is the job
from which a claimant was disqualified, as well as all other
jobs utilizing similar training, knowledge, and skills within
‘the geographical area to which the [claimant] has reason-
able access.’ ” EEOC v. Rockwell Int’l Corp., 243 F.3d 1012,
1017 (7th Cir. 2001) (quoting 29 C.F.R. § 1630.2(j)(3)(i))
(modification in original). Ms. Squibb is a professional
woman holding a license in nursing; we therefore must
consider her working limitations in the context of other
persons possessing similar training, skills and abilities
and the manner of jobs open to them. See 29 C.F.R.
§ 1630.2(j)(3)(i). In support of her claim, she notes that
Memorial’s website only advertises patient care nursing
positions and that Memorial is the largest nursing em-
ployer in the area. Despite this submission, she neverthe-
less further submits evidence that Memorial itself has
available nursing positions, including patient care nursing
positions, for which all of the duties fall within her physical
abilities. See Appellant’s Br. at 40-41.5 On the basis of this
5
In support of her claims that Memorial failed to reasonably
accommodate her “disability,” Ms. Squibb states that she was
qualified for RN positions at certain of Memorial’s affiliated
clinics (HCNAs), “where lifting was not an essential function of
(continued...)
12 No. 06-2389
record, therefore, Ms. Squibb certainly has not raised a
triable issue of fact as to whether her back condition
substantially limits her ability to work. Ms. Squibb’s
evidence on this point does not cross the minimum thresh-
old for demonstrating that she cannot perform a “class of
jobs”: Not only has she failed to produce evidence of the
range of non-patient care nursing positions that persons
with her training could perform, within her restrictions, her
evidence demonstrates that she may perform certain
positions in the particular job of patient care nursing she
seeks. A person cannot demonstrate that she is significantly
limited in performing a “class of jobs” when her own
evidence demonstrates that there are jobs within the broad
parameters of her professional calling that she can perform
without restriction. Accord Brunko v. Mercy Hosp., 260 F.3d
939, 942 (8th Cir. 2001) (stating that a nurse with a 40
pound lifting restriction “was only precluded from per-
forming a narrow range” of jobs by her limitations and,
therefore, was not substantially limited in the major life
activity of working).
Ms. Squibb further maintains that, because of her condi-
tion, she is unable to perform all medium- and heavy-duty
5
(...continued)
an RN position.” Appellant’s Br. at 40. She further states that
she “was capable of performing the job duties of various nursing
jobs at Memorial such as (1) Outcomes Case Manager; (2) Local
Medical Review Policy Coordinator; (3) RN Continued Stay
Specialist; (4) Pre-Admission Planning Nurse; (5) Employee
Health Service Coordinator; and (6) a Charge Resource Nurse.”
Id. at 41 (emphasis added). Her deposition testimony was
that she believed that she could perform the duties of each of
these nursing jobs in the Memorial system without any accom-
modation.
No. 06-2389 13
jobs; she claims this demonstrates that she is restricted
from performing a broad range of jobs in various classes.
To determine whether an individual is precluded, by
reason of their impairment, from performing a “broad
range of jobs in various classes,” we consider “the job from
which a claimant was disqualified, as well as all other jobs
not utilizing similar training, knowledge, and skills within
‘the geographical area to which the [claimant] has reason-
able access.’ ” Rockwell Int’l Corp., 243 F.3d at 1017 (quoting
29 C.F.R. § 1630.2(j)(3)(ii)(A), (C)) (emphasis added)
(modification in original). Ms. Squibb’s blanket contention
that she cannot perform anything other than a light-duty
job does not demonstrate that she is significantly restricted
in performing a broad range of jobs. She has submitted no
evidence of the range of jobs available in her geographic
area that would fall within her physical restrictions, even
if they would not make use of her particular skills. Accord-
ingly, this basis for her claimed limitation on the major life
activity of working suffers from a failure of proof.
Because Ms. Squibb has not produced evidence sufficient
to create a triable issue of fact regarding whether her back
condition significantly restricted her ability to perform
either a class of jobs or a broad range of jobs in various
classes, she has not demonstrated that she is substantially
limited in the major life activity of working.
2.
Ms. Squibb claims that, due to her back pain, she is
unable to sleep for longer than three to four hours per night
and, therefore, is substantially limited in the major life
activity of sleeping. Although this court has indicated that
sleeping is a major life activity, Scheerer v. Potter, 443 F.3d
14 No. 06-2389
916, 919-20 (7th Cir. 2006), we have required evidence that
the limitations on sleeping claimed by the plaintiff are
sufficiently “prolonged, severe and long-term” to warrant
classification as a disability, Burks v. Wisconsin Dep’t of
Transp., 464 F.3d 744, 757 (7th Cir. 2006). We have consid-
ered the extent to which a claimed lack of sleep contributes
to a decreased functional level in determining whether the
severity of the sleep deprivation at issue rose to the level of
a disability. See id. Ms. Squibb’s generalized assertions that
she is unable to sleep for substantial periods of time,
unsupported by any additional evidence, medical or
otherwise, and unenhanced by claims that this lack of sleep
affects her daytime functions, are insufficient to create a
genuine issue of fact on her claim that she is disabled
because of the limitations on her ability to sleep.6
6
See Nuzum v. Ozark Auto. Distribs., Inc., 432 F.3d 839, 848 (8th
Cir. 2005) (holding that an employee who could sleep for no
more than two and a half hours at a time, for a total of five
hours per night, was not disabled); Swanson v. Univ. of
Cincinnati, 268 F.3d 307, 316-17 (6th Cir. 2001) (holding that
inability to sleep more than four to five hours per night did not
demonstrate a substantial limitation in the major life activity of
sleeping as compared to the average person’s ability to sleep).
But see Head v. Glacier Nw., Inc., 413 F.3d 1053, 1061 (9th Cir.
2005) (holding that a plaintiff’s testimony that he was limited to
five or six hours of sleep with the assistance of medications that
hampered his daytime functions and that, even with medica-
tions, sometimes he could not sleep at all, was sufficient to
withstand summary judgment on whether he had a substan-
tial impairment in the major life activity of sleeping).
No. 06-2389 15
3.
Ms. Squibb also claims to be substantially limited in the
major life activity of caring for herself. See 29 C.F.R.
§ 1630.2(i) (identifying “caring for oneself” as an example
of a major life activity). In support of her claim, Ms. Squibb
relies on her own statements that she has difficulty with the
specific activities of zipping or buttoning her clothing in
the back, brushing the back of her hair, and that she is
limited in her ability to do household tasks such as cook-
ing, cleaning and grocery shopping, although she performs
certain of these tasks on occasion. In light of the tasks she
admittedly can perform (driving, bathing, brushing her
teeth, dressing herself), we must conclude that, as a matter
of law, the limitations she claims do not demonstrate that
she is “prevent[ed] or severely restrict[ed],” Toyota Motor
Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 198 (2002),
from caring for herself. See Holt v. Grand Lake Mental Health
Ctr., Inc., 443 F.3d 762, 763 (10th Cir. 2006) (noting that an
individual who “sometimes has difficulty eating and must
chew her food thoroughly or it will become lodged in
her throat[,]. . . . cannot cut her own fingernails or toe-
nails[,]. . . . can dress herself, but sometimes must ask for
help when buttoning her clothes” had not raised a genuine
issue of fact as to whether she was substantially limited in
the major life activity of caring for herself).
4.
Ms. Squibb next contends that she is substantially limited
in the major life activities of sitting and walking. She
specifically claims that she is unable to sit for more than
thirty minutes at a time and that her difficulties walking
were noticed and documented in an e-mail by one of her
16 No. 06-2389
supervisors. Other than stating that she walks with diffi-
culty, she does not identify any specific limits—such as
time or distance—on her ability to walk. The only addi-
tional evidence relating to her abilities in these functions
contained in the record, the 2003 FCE, specifically finds
that she can sit or stand continuously. Even taking Ms.
Squibb’s contentions regarding her ability to walk or sit at
face value, her assertion that she needs breaks every thirty
minutes does not compare to the claims this court has held
should survive summary judgment. See, e.g., EEOC v. Sears,
Roebuck & Co., 417 F.3d 789, 802 (7th Cir. 2005) (reversing
summary judgment for employer where employee’s
evidence showed she could walk no more than one block).
On this record, a trier of fact could not conclude rationally
that Ms. Squibb is substantially limited in the major life
activities of sitting and walking.
5.
Ms. Squibb finally contends that she is substantially
limited in the major life activity of sexual relations.
The Supreme Court has ruled that sexual reproduction is
a major life activity. Bragdon v. Abbott, 524 U.S. 624, 638-39
(1998). Although this court has recognized that it could be
inferred from Bragdon that engaging in sexual relations
constitutes a major life activity, it has deferred the question.
See Scheerer, 443 F.3d at 921. We do so again here, because,
even if we concluded that sexual relations is a major life
activity, Ms. Squibb has not demonstrated sufficient
evidence of her limitation to prevent summary judgment
on this issue. See Contreras, 237 F.3d at 764 (“[E]ven if we
assume that engaging in sexual relations is a major life
activity, Contreras has not substantiated his claim of sexual
No. 06-2389 17
difficulties with any documentation or testimony beyond
a general assertion that the frequency with which he has
relations has decreased.”). We previously have held that a
plaintiff’s own conclusory assertion of reduced ability to
engage in intercourse is insufficient to create a genuine
issue of triable fact. Id. Ms. Squibb’s claim suffers the same
deficiency. Although her own deposition testimony states
that she has been unable to engage in sexual relations for
two years due to her back pain, she has provided no other
evidence of her claimed sexual limitation; neither is any
difficulty easily inferred from the minimal restrictions
placed on her physical activity by her physician or from the
physical limitations revealed by the FCE on continuous
activities in an eight hour working day.
In any event, as we have noted elsewhere, it is unclear in
what manner a plaintiff’s employer would accommodate a
disability that restricted the plaintiff’s ability to engage in
sexual relations. Scheerer, 443 F.3d at 921 (“Even if he could
provide such evidence, Scheerer fails to explain in what
fashion the Postal Service could reasonably accommodate
his diabetes in the context of symptoms of sexual dysfunc-
tion.”). We agree with our colleagues in the Eighth Circuit
that, to the extent an ADA discrimination claim centers on
a request for a workplace accommodation, there must be
some causal connection between the major life activity that
is limited and the accommodation sought. Nuzum v. Ozark
Auto. Distribs., Inc., 432 F.3d 839, 848 (8th Cir. 2005) (reject-
ing the plaintiff’s claim that his inability to “hug” could be
the basis for an ADA claim against his employer, because
“even if [the plaintiff] were held to be disabled by virtue of
the hugging limitation, it would not save his claim since he
seeks an accommodation from his employer, which must
be related to the limitation in question.”).
18 No. 06-2389
6.
In addition to her claims that she suffers from an impair-
ment that qualifies as a disability under the statute, Ms.
Squibb also claims that Memorial “regarded” her as substan-
tially limited in the major life activities of walking and
working.
This court recently has clarified that, in order to proceed
under the “regarded as” prong of the ADA, a plaintiff must
demonstrate that the employer believed that the employee
(1) had an impairment (2) that substantially limited (3) one
or more major life activities. See Kampmier, 472 F.3d at 937-
38. “If the condition that is the subject of the employer’s
belief is not substantially limiting, and the employer does
not believe that it is, then there is no violation of the ADA
under the ‘regarded as’ prong of the statute.” Id. at 938(internal quotation marks omitted). Ms. Squibb claims that
the hospital had notice of her difficulties with patient care
nursing related to lifting and, therefore, moved her to an
unassigned nursing position (rather than staff nursing); in
addition, Memorial employees had noticed and reported
her difficulties walking to a supervisor. However, Ms.
Squibb’s claims essentially rest on Memorial’s knowledge
of her claimed disabilities. She has not presented any
evidence that suggests that Memorial’s beliefs about her
limitations exceeded the scope of her actual limitations. As
we already have concluded, the impairments she claims do
not, on their own accord, rise to the level of substantial
limitations in the major life activities of walking or work-
ing. Therefore, Memorial’s notice of those disabilities
cannot establish that it regarded Ms. Squibb as disabled.
Because we have concluded that Ms. Squibb is not
disabled within the meaning of the Act, she is not protected
by its substantive anti-discrimination provisions. We need
No. 06-2389 19
not examine her reasonable accommodation, termination or
failure to hire claims further. See Kampmier, 472 F.3d at 938-
39.
B.
In addition to claiming that she was the victim of disabil-
ity discrimination, Ms. Squibb also claims that Memorial
took a number of actions against her in retaliation for her
EEOC charge. Our conclusion that Ms. Squibb is not
disabled does not foreclose these latter claims. The Act
prohibits an employer from retaliating against an employee
who has raised an ADA claim, whether or not that em-
ployee ultimately succeeds on the merits of that claim.7
Cassimy v. Bd. of Educ. of Rockford Pub. Schs., 461 F.3d 932,
938 (7th Cir. 2006).
Ms. Squibb claims both that she has presented direct
evidence of retaliation and that she has set forth a prima
facie case of discrimination using the indirect method. We
shall examine each contention.
1.
A plaintiff succeeds in establishing unlawful retaliation
under the direct method by presenting evidence of: “(1) a
7
The ADA anti-retaliation provision provides:
No person shall discriminate against any individual because
such individual has opposed any act or practice made
unlawful by this chapter or because such individual made
a charge, testified, assisted, or participated in any manner in
an investigation, proceeding, or hearing under this chapter.
42 U.S.C. § 12203(a).
20 No. 06-2389
statutorily protected activity; (2) an adverse action; and (3)
a causal connection between the two.” Burks, 464 F.3d at
758. Ms. Squibb claims Memorial took several actions after
she had engaged in the protected activity of filing an EEOC
charge in January 2003. Ms. Squibb claims that she was
refused the local medical review policy positions for which
she had applied and ultimately was terminated in retalia-
tion for her charge and the subsequent suit. Ms. Squibb has
satisfied two prongs of the test: Refusal to hire and termi-
nation are adverse actions, and the filing of a charge is a
statutorily protected activity.8
Ms. Squibb appears to recognize that the timing of her
termination and the refusal to hire, both in January 2005,
preceded eight months earlier by the filing of the present
action and two years earlier by a discrimination charge, is
insufficient circumstantial evidence, standing alone, to
demonstrate a causal connection between the two. See
Burks, 464 F.3d at 758-59 (noting that more than suspicious
timing is generally required); Sauzek v. Exxon Coal USA,
Inc., 202 F.3d 913, 918 (7th Cir. 2000) (“The mere fact that
one event preceded another does nothing to prove that the
first event caused the second. Rather, other circumstances
must also be present which reasonably suggest that the two
events are somehow related to one another.” (internal
8
See Hoffman v. Caterpillar, Inc., 256 F.3d 568, 575-76 (7th Cir.
2001) (examining what employment actions are sufficiently
“adverse” to satisfy the statutory language in 42 U.S.C.
§ 12112(a)); see also Horwitz v. Bd. of Educ. of Avoca Sch. Dist. No.
37, 260 F.3d 602, 612 (7th Cir. 2001) (noting that the plaintiff
engaged in protected activity in filing EEOC charges and a
subsequent lawsuit).
No. 06-2389 21
citations omitted)).9 In an attempt to demonstrate retalia-
tory motive, Ms. Squibb contends that she suffered an
intermediate retaliatory act: She was offered the position of
patient placement coordinator, a job she contends was
clearly outside her physical restrictions.10 Ms. Squibb
testified that, while in this position, she was twice ordered
to perform duties outside her physical restrictions by co-
workers, not supervisors, and “disciplined . . . for reasons
associated with her disability.” Appellant’s Br. at 47. These
two incidents involving co-workers do not demonstrate
9
We note that, under narrow circumstances in which the time
period between the protected activity and the adverse action is
exceedingly short, we previously have found circumstantial
evidence of retaliatory motive. See McClendon v. Indiana Sugars,
Inc., 108 F.3d 789, 796-97 (7th Cir. 1997) (finding that the
immediacy of an adverse action occurring only two days after
protected activity was sufficiently short to support an inference
of discriminatory motive and discussing similar cases). We have
noted that, “as the temporal distance between [the claimant’s]
protected expression and the adverse action increase[s], it is
less likely that there is a causal link between the two events.”
McKenzie v. Illinois Dep’t of Transp., 92 F.3d 473, 485 (7th Cir.
1996). We need not decide the extent that the McClendon line of
cases remains viable in light of the development of circuit law,
however, because under the circumstances alleged in this case,
in which months or years passed between the protected activi-
ties and the claimed adverse action, McClendon’s narrow
exception can have no application.
10
Ms. Squibb’s brief on summary judgment and to this court
could be read as suggesting that the job offer itself was an
adverse action sufficient to support her claim of retaliation. We
note that this contention was not a part of her amended com-
plaint, nor was it presented in her EEOC charge. Therefore,
we do not consider it on its merits.
22 No. 06-2389
that the job generally required more than Ms. Squibb was
capable of doing; nor do they demonstrate that Memorial
harbored a retaliatory motive against her when it placed
her in the position. Memorial’s act of disciplining Ms.
Squibb for multiple absences in this position also does not
provide any evidence that it harbored a retaliatory motive
in response to her EEOC charge.
In short, her unsuccessful assignment to the patient
placement coordinator position does not demonstrate that,
when she ultimately was terminated and refused the local
medical review policy positions in 2005, it was the culmina-
tion of some sort of pattern of retaliatory activity, as Ms.
Squibb suggests. Ms. Squibb has failed to come forward
with evidence of retaliation under the direct method of
proof sufficient to withstand summary judgment.
2.
Ms. Squibb also contends that she has provided sufficient
evidence to withstand summary judgment using the
indirect method of proof of retaliation. To succeed under
the indirect method of proof on a retaliation claim, a
plaintiff must demonstrate: “(1) that she engaged in
protected activity; (2) that she was subject to an adverse
employment action; (3) that she was performing her job
satisfactorily; and (4) that no similarly situated employee
who did not engage in protected activity suffered an
adverse employment action.” Burks, 464 F.3d at 759. As we
already have noted, Ms. Squibb has provided two adverse
actions—failure to hire and termination—and statutorily
protected activity in the filing of her discrimination charge
and this action. We therefore examine the latter two
components of her prima facie case.
No. 06-2389 23
Ms. Squibb asserts that she was meeting Memorial’s
legitimate expectations. Although Ms. Squibb invites our
attention to her successes as a nurse prior to the filing of
her EEOC charge in 2002, we must examine her perfor-
mance at the time of the challenged adverse actions. See
Timmons, 469 F.3d at 1128 (noting that “at the time he was
placed on leave, [the plaintiff] was failing to meet [his
employer’s] legitimate expectations” and, therefore, could
not establish this element of his prima facie case). After the
charge, Ms. Squibb missed significant amounts of work and
received poor evaluations for a lack of attention to detail.
By January 2005, when she was terminated, she was on
extended leave and refused to accept a position Memorial
had offered her. Ms. Squibb has come forward with no
evidence whatsoever that she was performing as Memorial
reasonably would expect her to perform during the rele-
vant time period.
In addition, Ms. Squibb has not identified a similarly
situated employee who was treated more favorably
because she did not file a discrimination charge. Ms.
Squibb invites the attention of the court to Ruth Ann Cope,
another registered nurse with back problems who had been
hired in the local medical review policy coordinator
position two years earlier. At the time Cope was hired, she
did not possess the experience that Memorial later told Ms.
Squibb was necessary for the local medical review policy
positions. Ms. Squibb does not dispute that Memorial had
changed the position requirements since the time Cope was
hired. She likewise does not dispute that Memorial restruc-
tured the duties of that position, rendering it essentially
managerial and effectively eliminating the second coordi-
nator position. Given these intervening changes to the
position description, Ms. Squibb cannot say that she and
Cope were similarly situated with respect to it.
24 No. 06-2389
With respect to the local medical review policy analyst
positions, Memorial eventually hired two individuals with
the relevant experience that Ms. Squibb lacked. Ms. Squibb
is not “similarly situated” to persons better qualified for an
open position than she was. See Patterson v. Avery Dennison
Corp., 281 F.3d 676, 680 (7th Cir. 2002) (noting that, in order
to demonstrate that a comparison individual is similarly
situated to a plaintiff, the plaintiff is required to produce
evidence that the comparison employee is “directly compa-
rable to her in all material respects,” and further noting
that “experience, education and qualifications” are particu-
larly relevant in this inquiry).
Because Ms. Squibb can demonstrate neither that she was
performing up to Memorial’s legitimate expectations at the
time of the adverse actions she suffered nor that any
similarly situated employee who did not engage in pro-
tected activity was treated more favorably than she, she
has not made out a prima facie case of retaliation under
the indirect method of proof.
Conclusion
Ms. Squibb has not presented sufficient evidence to
create a genuine issue of fact as to whether she is disabled
within the meaning of the Act; neither has she presented
evidence that the adverse employment actions she suffered
were taken by Memorial in retaliation for her statutorily
protected activities. We therefore affirm the district court’s
entry of summary judgment in Memorial’s favor.
AFFIRMED
No. 06-2389 25
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-16-07