Dewitt, Phillis v. Proctor Hospital ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-1957
PHILLIS DEWITT,
Plaintiff-Appellant,
v.
PROCTOR HOSPITAL, an Illinois not-for-profit corporation,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 06 C 1181—Joe Billy McDade, Judge.
____________
ARGUED NOVEMBER 29, 2007—DECIDED FEBRUARY 27, 2008
____________
Before CUDAHY, POSNER, and EVANS, Circuit Judges.
EVANS, Circuit Judge. After she was fired from her job as
a registered nurse at Proctor Hospital, 47-year-old Phillis
Dewitt sued, alleging “association discrimination” under
the Americans with Disabilities Act (ADA) as well as age
and gender discrimination. The district court entered
summary judgment in favor of Proctor. The court also
denied Dewitt’s motion for leave to amend her complaint
to add a claim of ERISA retaliation. Today we resolve
Dewitt’s appeal from those decisions.
2 No. 07-1957
In September 2001, Proctor, a hospital in Peoria, Illinois,
hired Dewitt to work as a nurse on an “as-needed” basis.
Proctor apparently liked how Dewitt did her job because
the following month she was promoted to the permanent
position of second-shift clinical manager. In that role,
Dewitt supervised nurses and other Proctor staff members.
Three years into the job, Dewitt switched to the first-shift
clinical manager slot. In the summer of 2005, she switched
to a part-time schedule, sharing the responsibilities of
second-shift clinical manager with a coworker.
Dewitt, it appears (for we must assume the facts to be
as she presents them at this stage of the proceedings), was
a valuable employee. In her last evaluation, her supervisor,
Mary Jane Davis, described her as an “outstanding clinical
manager [who] consistently goes the extra mile.” But things
were not quite as rosy as they appeared.
Dewitt and her husband, Anthony, were covered under
Proctor’s health insurance plan. Throughout Dewitt’s
tenure at Proctor, Anthony suffered from prostate cancer
and received expensive medical care. His covered medical
expenses were paid by Proctor, which was partially self-
insured. It paid for members’ covered medical costs up
to $250,000 per year. Anything above this “stop-loss”
figure was covered by a policy issued by the Standard
Security Life Insurance Company of New York.
Dewitt was able to maintain health insurance coverage
for herself and Anthony even during her short part-time
stint, since Proctor credited Dewitt with “hospital ap-
proved absence” (unpaid time), allowing her to reach the
minimum number of hours necessary to qualify for bene-
fits.
No. 07-1957 3
Since Proctor was self-insured, it took a keen interest
in the medical claims submitted by its employees. Each
quarter, in fact, Progressive Benefits Services, the ad-
ministrator of Proctor’s medical plan, prepared a “stop-loss
report” for Linda K. Buck, Proctor’s vice-president of
human resources. The report identified all employees
whose recent medical claims exceeded $25,000.
The stop-loss reports highlighted Dewitt’s expenses.
Although Dewitt was not listed on reports for 2001 and
2002 (indicating that her family’s medical expenses,
particularly those of her husband, were less than $25,000),
during the next three years Anthony underwent costly
medical procedures. In 2003, the Dewitts’ medical claims
for Anthony were $71,684. In 2004, the figure jumped to
$177,826. In the first eight months of 2005, the expenses
were $67,281.50.
In September 2004, Davis confronted Dewitt about
Anthony’s high medical claims. Specifically, she asked
what treatment Anthony was receiving, and Dewitt
responded that he was undergoing chemotherapy and
radiation. Davis asked Dewitt if she had considered
hospice care for her husband; Dewitt responded that
Anthony’s doctor considered less expensive hospice care
placement to be premature. Davis explained that a commit-
tee was reviewing Anthony’s medical expenses, which she
described as unusually high.
In February 2005, Davis again pulled Dewitt aside to
ask about Anthony’s treatment. Dewitt informed her
that Anthony’s situation had not changed.
In May 2005, Davis organized a meeting for Proctor’s
clinical managers. She informed the employees that Proctor
faced financial troubles, which, according to
Davis, required a “creative” effort to cut costs.
4 No. 07-1957
Proctor fired Dewitt on August 3, 2005, and designated
her as “ineligible to be rehired in the future.” Proctor
provided no explanation for its “ineligible for rehire”
decision.1 Dewitt’s medical benefits with Proctor continued
through the end of August. After that, Dewitt paid for
COBRA coverage (which she was able to get for a maxi-
mum of 18 months) for herself and her husband. But
18 months, as it turned out, wasn’t necessary as Anthony,
a year and a week after Dewitt was fired, gave up his
fight with cancer. He died on August 9, 2006.
Dewitt’s age and gender discrimination claims can be
quickly resolved. On her age claim, she says she was
replaced by a 25-year-old woman named Michelle Patton.
But Dewitt’s “evidence” on this point is nothing more
than a statement in her affidavit which is not based on
her personal knowledge. Proctor, on the other hand, offers
personal knowledge from Ms. Buck to the effect that during
the two months following Dewitt’s discharge, several
different employees (a total of eight is suggested) filled her
spot before it was given, permanently, to Sarilee Glover,
who was 57 years old. Dewitt’s inability to satisfy the
requirement, under the often-cited McDonnell Douglas test,
that she was replaced by someone outside the protected
group—someone under 40 years of age—dooms her age
discrimination claim.
Ditto for her gender discrimination claim, where Dewitt
alleges that a male employee with high medical expenses,
a chap named Ray Lockhart, was not fired. But Lock-
1
In its brief, Proctor says, without elaboration, that Dewitt was
fired for “insubordination.” That may well be Proctor’s position
as this case moves forward, but it is not something that has
been developed so far.
No. 07-1957 5
hart’s medical expenses were actually quite modest as
compared to Dewitt’s. In 2004, his expenses were $4,114.05,
a staggering $173,712.32 short of Dewitt’s total. On top of
that, Dewitt offers next to nothing about Lockhart’s job
responsibilities other than to say he was a registered nurse
and an emergency room manager. The district court, on
this sparse record, correctly concluded that Dewitt’s gender
discrimination claim had to fail because she did not, again
as required by the ubiquitous McDonnell Douglas test,
identify a “similarly situated” member of the other sex who
received more favorable treatment from the hospital.
Now we come to Dewitt’s best claim as she invokes
the infrequently litigated “association discrimination”
section of the ADA. Under 42 U.S.C. § 12112(b)(4), an
employer is prohibited from discriminating against
an employee as a result of “the known disability of an
individual with whom [the employee] is known to have a
relationship or association.” Specifically, she alleges
that Proctor fired her to avoid having to continue to pay
for the substantial medical costs that were being in-
curred by her husband under Proctor’s self-insured
health insurance plan.
In our seminal case on this issue, Larimer v. International
Business Machines Corp., 370 F.3d 698, 700 (7th Cir. 2004), we
outlined three categories into which “association discrimi-
nation” plaintiffs generally fall. We called them (1) ex-
pense; (2) disability by association; and (3) distraction. In
the “expense” scenario, we noted that an employee, fired
because her spouse has a disability that is costly to the
employer (i.e., he is covered by the company’s health plan)
is within the intended scope of the “associational discrimi-
nation” section of the ADA.
6 No. 07-1957
The McDonnell Douglas test is not easily adaptable
to claims under the section of the ADA that permits
causes of action for association discrimination. It’s a bit like
a mean stepsister trying to push her big foot into one of
Cinderella’s tiny glass slippers. In Larimer, we struggled
with the task of reformulating the McDonnell Douglas test,
suggesting that a similar effort in Den Hartog v. Wasatch
Academy, 129 F.3d 1076 (10th Cir. 1997), while close to the
mark, could be tweaked and improved. And so we sug-
gested that a plaintiff, without direct evidence of discrimi-
nation, could prove her case by establishing that: (1) she
was qualified for the job at the time of the adverse employ-
ment action; (2) she was subjected to an adverse employ-
ment action; (3) she was known by her employer at the
time to have a relative or associate with a disability; and (4)
her case falls into one of the three relevant categories of
expense, distraction, or association. Larimer, 370 F.3d at
701-02.
While all this may be well and good, we think Dewitt’s
case, in the final analysis, does not have to be considered in
light of the tweaked McDonnell Douglas test because she has
fairly persuasive circumstantial evidence suggesting that
her case is best viewed as one relying on direct evidence.
And so, we think, a jury should consider her claim.
The uncontroverted evidence suggests that Proctor,
which faced financial trouble, was very concerned about
cutting costs. Because Proctor’s unusually high “stop-loss”
coverage didn’t kick in until claims exceeded $250,000, it
personally felt the heavy bite of Dewitt’s expenses. Proctor
wasn’t discreet about its concerns: in the May 2005 meet-
ing, Davis informed Proctor’s clinical managers that the
hospital would have to be “creative” in cutting costs.
No. 07-1957 7
That the powers-that-be at Proctor were interested
specifically in the high cost of Anthony’s medical treatment
is obvious. Davis, Dewitt’s supervisor (and the person
who ultimately fired her), pulled Dewitt aside twice in
five months to inquire about Anthony’s condition. These
conversations indicate that Davis was very interested
in limiting Anthony’s claims. During their first chat,
Davis informed Dewitt that a Proctor committee was
reviewing Anthony’s unusually high medical expenses.
She also asked Dewitt whether Anthony’s doctor had
considered hospice placement—a far cheaper “alternative”
to the costly chemotherapy and radiation Anthony was
receiving.
Finally, the timing of Dewitt’s termination suggests
that the financial albatross of Anthony’s continued cancer
treatment was an important factor in Proctor’s decision.
Dewitt was fired in August 2005—five months after her last
chat with Davis and three months after Proctor warned
employees about impending “creative” cost-cutting
measures. One could reasonably infer that Dewitt was
terminated after Proctor conducted its latest periodic
analysis of medical claim “outliers” and, this time around,
decided that its “wait and see” strategy with the Dewitts
was costing the hospital tens of thousands of dollars
every year. A reasonable juror could conclude that Proctor,
which faced a financial struggle of indeterminate length,
was concerned that Anthony—a multi-year cancer
veteran—might linger on indefinitely. This later fact
distinguishes Dewitt’s case from the situation in Larimer
where the fired employee’s twin daughters were “healthy
and normal” and thus no longer disabled when the em-
ployment termination decision was made.
Proctor makes several arguments, none of which we
find persuasive. It contends that its decision to terminate
8 No. 07-1957
Dewitt could not have been based on the high cost of
Anthony’s cancer treatment because the medical expenses
of other female employees exceeded those of Dewitt.
Specifically, Proctor points to evidence that in 2003, 2004,
and 2005, Dewitt’s claims were exceeded by those of one
or two other employees. It is unclear, however, whether
these employees (or other plan members), like Anthony,
had conditions that Proctor feared would require pro-
longed, expensive medical treatment which could poten-
tially continue far into the future. Thus, without a com-
parison of employees’ cumulative medical expenses and
treatment predictions, this argument has little appeal on
the basis of this record at the summary judgment stage
of the case.
In support of its claim that it never sought to restrict
the Dewitts’ access to health insurance, Proctor points to its
decision to help Dewitt maintain her coverage when she
switched to a part-time schedule in the summer of 2005.
According to Dewitt, however, her switch to a part-time
schedule was contingent on Proctor continuing her medical
benefits. Since we must interpret the facts in Dewitt’s favor,
we therefore assume that Proctor was well-aware that
regardless of how it responded to her request to maintain
her health coverage, Dewitt would not have relinquished
her benefits voluntarily.
Finally, Proctor argues that firing Dewitt would not
have accomplished the goal Dewitt attributes to it—
freeing itself of Anthony’s steep medical bills—since
Dewitt was eligible for post-termination COBRA insurance.
This argument, however, leaves out an important piece of
the puzzle. Even if Proctor shared some finan-
cial responsibility for the continuation of benefits, it
would nonetheless save money by terminating Dewitt,
No. 07-1957 9
since it feared that Anthony’s expensive treatment might
continue indefinitely and the COBRA coverage would
expire after 18 months.
Because Dewitt has established that direct evidence
of “association discrimination” may have motivated
Proctor in its decision to fire her, a jury should be allowed
to consider her claim.
Lastly, Dewitt contends that the court erred in refusing
to allow her to amend her complaint to add a claim of
ERISA retaliation. The district court denied Dewitt’s
motion on the basis of futility, since it determined that
her claim would have ultimately failed. We review the
district court’s decision to deny a motion for leave to
amend for an abuse of discretion. Cacia ex rel. Randolph v.
Norfolk & Western Ry. Co., 290 F.3d 914, 921 (7th Cir. 2002).
Under § 510 of ERISA, an employer may not dis-
charge “a participant or beneficiary for exercising any right
to which he is entitled under the provisions of an employee
benefit plan.” 29 U.S.C. § 1140. This provision is intended
to discourage employers from discharging or harassing
their employees in an attempt to prevent them from using
their pension or medical benefits. Lindemann v. Mobil Oil
Corp., 141 F.3d 290, 295 (7th Cir. 1998).
To determine whether the district court properly re-
jected Dewitt’s amendment as futile, we must determine
whether her ERISA retaliation claim would survive a
motion for summary judgment. See Sound of Music Co. v.
Minnesota Min. & Mfg. Co., 477 F.3d 910, 923 (7th Cir. 2007).
If Proctor had a legitimate, nondiscriminatory reason for
firing Dewitt, she would be out of luck. She would not then
be able to show retaliation. Isbell v. Allstate Ins. Co., 418 F.3d
788, 796 (7th Cir. 2005). Because, however, Proctor elected
10 No. 07-1957
not to push its apparent position that Dewitt was fired for
insubordination, Dewitt should have been allowed to
amend her complaint to include an allegation of ERISA
retaliation.
A reasonable jury could conclude that Proctor retaliated
against Dewitt, and thus committed an ERISA violation,
when they showed her the door on August 3, 2005. But that
said, we note that Dewitt’s two claims, one under the ADA
and the other under ERISA, overlap, perhaps completely.
Both essentially present the same factual question—why
did Proctor fire Dewitt? If a jury were to find that Dewitt
was fired for insubordination, not because her husband
was costing the hospital a ton of money under its self-
insured medical plan, that would be the end of the case. If
the insubordination defense is rejected and the jury
concludes that Anthony’s expenses were the real motivat-
ing factor, damages—whether based on a discrimination
claim under the ADA or a retaliation claim under
ERISA—would seem to be the same. With that being the
situation, on remand, some thought should be given to
whether having two claims here instead of one does
anything other than unduly complicate the proceedings.
For these reasons, we AFFIRM the district court’s grant of
summary judgment to Proctor on Dewitt’s age and gender
discrimination claims. We REVERSE both the grant of
summary judgment on the ADA association discrimination
claim and the denial of Dewitt’s motion to amend her
complaint. The case is REMANDED to the district court for
further proceedings.
No. 07-1957 11
POSNER, Circuit Judge, concurring. I agree with the
decision and with most of Judge Evans’s characteris-
tically lucid majority opinion. I write separately to raise
two questions that seem to me to be worth flagging al-
though they do not have to be answered to decide the
case—the alternative ways of establishing a prima facie
case of discrimination and their suitability to the dis-
crimination charged in this case—and a third question—the
difference between discrimination on grounds of expense
and discrimination on grounds forbidden by federal
law—regarding which the discussion in the majority
opinion seems to me incomplete and potentially mislead-
ing.
The standard understanding is that there are two ways to
make out a prima facie case of discrimination—which is to
say, a showing in advance of trial sufficient to defeat the
defendant’s motion for summary judgment. They are the
“direct method” and the “indirect method,” the latter being
that of McDonnell Douglas Corp. v. Green, 411 U.S. 792(1973); see, e.g., Timmons v. General Motors Corp., 469 F.3d
1122, 1126-27 (7th Cir. 2006). The direct method is the one
that litigants would use if there were no McDonnell Douglas
test. The plaintiff would marshal all his direct and circum-
stantial evidence of discrimination (“direct” here meaning,
as distinct from its use in the phrase “direct method,”
evidence that is not circumstantial—which, in a discrimina-
tion case, usually means admissions) and the defendant
would do the same with regard to evidence countering an
inference of discrimination. The question would then be
whether a reasonable jury could infer discrimination if
the record at trial were the same as the record on summary
judgment (except that some of the evidence given
in documentary form in the summary judgment proceed-
ings would have to be given in oral form at a trial). If
12 No. 07-1957
so, the defendant’s motion for summary judgment would
be denied. That is the basis for the reversal of the dismissal
of the claim of disability discrimination in this case.
The evidence used to establish a prima facie case under
the indirect method would often be part of the circum-
stantial evidence presented under the direct method. In
a case of racial discrimination, for example, the fact that a
black employee had been replaced by a white one and
the defendant was mum on the reason for the replace-
ment would be some evidence of racial motivation. An-
other element of the indirect method might be miss-
ing—maybe the white had better qualifications and a
slightly different kind of job and reported up a different
chain of command. But that hole could be plugged by some
additional evidence of discrimination, perhaps statistics on
the racial composition of the defendant’s work force in
relation to the pool of potential workers. “Any demonstra-
tion strong enough to support a 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) (per
curiam).
So it was a mistake for the parties in this case to think
that the way to litigate it was to address the two methods
of establishing a prima facie case as if each were in its
own sealed compartment. One consequence was that the
defendant’s lawyer made a damaging tactical error by
failing to produce any evidence (even a simple sworn
denial) of a nondiscriminatory reason for terminating
the plaintiff (though he claims to have such evidence), on
the ground that the plaintiff had failed to establish a prima
facie case by either method taken separately. Maybe so, but
the plaintiff presented other evidence of discrimination
No. 07-1957 13
besides the defendant’s silence on why it had fired the
plaintiff, and that silence, though insufficient in itself, was
enough (at least given another tactical blunder by the
defendant, which I discuss later) to make out a prima facie
case when added to the balance. “[W]hen a plaintiff in a
discrimination case has direct evidence of discrimination as
well as the indirect evidence required to make out a prima
facie case under McDonnell Douglas he does not have to
show that either approach, taken in isolation from the
other, makes out a prima facie case—he can combine
them.” Simple v. Walgreen Co., 511 F.3d 668, 670-71 (7th Cir.
2007); cf. Logan v. Kautex Textron North America, 259 F.3d
635, 638-40 (7th Cir. 2001); Burns v. AAF-McQuay, Inc., 96
F.3d 728, 732 (4th Cir. 1996).
So far I have assumed that McDonnell Douglas provides
an appropriate method of establishing a prima facie case
under the rarely litigated “association” provision of the
Americans with Disabilities Act, the provision that for-
bids discrimination against “a qualified individual be-
cause of the known disability of an individual with
whom the qualified individual is known to have a rela-
tionship or association.” 42 U.S.C. § 12112(b)(4); see Larimer
v. International Business Machines Corp., 370 F.3d 698 (7th
Cir. 2004). As we explained in Larimer, and repeated in a
slightly different context in Timmons v. General Motors
Corp., supra, 469 F.3d at 1127-28, an attempt to clone the
McDonnell Douglas test for use in an association case would
enable a plaintiff to establish a prima facie case merely by
showing that the employer, knowing that the plaintiff (a
qualified worker in the sense of meeting his employer’s
expectations) had an association with a disabled person,
fired the plaintiff or took other adverse employment action
against him and replaced him with (or did not take similar
14 No. 07-1957
adverse employment action against) someone who did not
have a known association with a disabled person. 370 F.3d
at 701-02. Yet the inference from these scanty facts that the
association had induced the employer’s action would be
too weak to justify forcing the defendant to produce
evidence that he had taken the action for a different, an
innocent reason.
Some people do feel distaste for associating with a
disabled person. But the employer (and employees whose
prejudices the employer might share or condone) are not
being asked in an “association” case to associate with a
disabled person. He is not another employee, but a stranger
to the workplace with whom one of the employees happens
to have a relationship. Prejudice against an employee who
merely has a relationship with a disabled person doubtless
exists; as we pointed out in Larimer v. International Business
Machines Corp., supra, 370 F.3d at 699-700; see also Tyndall
v. National Education Centers, Inc., 31 F.3d 209, 214 (4th Cir.
1994), an employer might worry that the plaintiff would be
distracted from his work by the disability of the person
with whom he had a relationship, or might think the
disease creating the disability catching (perhaps the person
is the plaintiff’s husband and has AIDS). But that is a
sufficiently rare occurrence to require the plaintiff to go be-
yond a bobtailed McDonnell Douglas test and show, as
the court in Den Hartog v. Wasatch Academy, 129 F.3d 1076,
1085 (10th Cir. 1996), put it, that “the adverse employment
action occurred under circumstances raising a reasonable
inference that the disability of the relative or associate was
a determining factor in the employer’s decision.” See also
Timmons v. General Motors Corp., supra, 469 F.3d at 1126-27;
Larimer v. International Business Machines Corp., supra, 370
F.3d at 701; Hilburn v. Murata Electronics North America, Inc.,
No. 07-1957 15
181 F.3d 1220, 1230-31 (11th Cir. 1999); Ennis v. National
Ass’n of Business & Educational Radio, Inc., 53 F.3d 55, 57-59
(4th Cir. 1995). Otherwise the number of spurious suits
would soar. An employee who, perhaps fearing the axe,
wanted to prepare a discrimination case would have
only to talk up at work his relationship to a disabled
person; such relationships are not uncommon.
An employer’s most likely concern about an employee
who has a disabled relative, especially a spouse or child,
is that the relative’s medical expenses may be covered
by the employer’s employee health plan. There is a posi-
tive correlation between being disabled and having ab-
normally high medical expenses, just as there is a posi-
tive correlation between the age of an employee and his
salary because most employees receive regular raises
as long as they perform satisfactorily. Suppose a com-
pany encounters rough waters and decides to retrench
by firing its most expensive employees. They are likely to
be older on average than the employees who are re-
tained, but as we said many years ago, and the Supreme
Court confirmed in Hazen Paper Co. v. Biggins, 507 U.S. 604,
611-12 (1993), “nothing in the Age Discrimination
in Employment Act forbids an employer to vary em-
ployee benefits according to the cost to the employer; and
if, because older workers cost more, the result of the
employer’s economizing efforts is disadvantageous to older
workers, that is simply how the cookie crumbles.” Karlen v.
City Colleges of Chicago, 837 F.2d 314, 319 (7th Cir. 1988); see
also EEOC v. Francis W. Parker School, 41 F.3d 1073, 1076-78
(7th Cir. 1994); Bramble v. American Postal Workers Union,
135 F.3d 21, 25-26 (1st Cir. 1998); Adams v. Florida Power
Corp., 255 F.3d 1322, 1325-26 (11th Cir. 2001); cf. Troupe v.
May Department Stores Co., 20 F.3d 734, 738 (7th Cir. 1994).
16 No. 07-1957
The majority opinion in this case does not cite any of these
precedents or acknowledge the difference between distaste
and expense as grounds for a discrimination suit—though
the fault for the omission, as we’ll see, is the defendant’s.
Now it is true, as we know from the discussion in the
Larimer case of the “expense” form of association dis-
crimination, 370 F.3d at 700-01, that an employer who
discriminates against an employee because of the latter’s
association with a disabled person is liable even if the
motivation is purely monetary. But if the disability
plays no role in the employer’s decision—if he would
discriminate against any employee whose spouse or
dependent ran up a big medical bill—then there is no
disability discrimination. It’s as if the defendant had simply
placed a cap on the medical expenses, for whatever cause
incurred, that it would reimburse an employee for. This
appears to be such a case. So far as the record reveals, the
defendant fired the plaintiff not because her husband was
disabled but because his medical expenses—which might
not have been any lower had they been due to a condition
that did not meet the statutory definition of a disabil-
ity—were costing the defendant an amount of money that
it was unwilling to spend. All the evidence recited in the
majority opinion concerns costs (“cutting costs,” “high cost
of Anthony’s medical treatment,” “financial albatross,”
etc.) that a person who had a nondisabling medical condi-
tion could equally incur.
If cost was indeed, as appears to be the case, the defen-
dant’s only motive for the action complained of, the
defendant was not guilty of disability discrimination.
Christian v. St. Anthony Medical Center, Inc., 117 F.3d 1051,
1052-53 (7th Cir. 1997). But it has never made
this argument, and so reversal is proper. Since, however, a
No. 07-1957 17
defendant does not have to file a motion for summary
judgment at all, 11 Moore’s Federal Practice, § 56.32[1], at pp.
56-260 to 56-261 (3d ed. 1997); Fed. R. Civ. P. 56(b), and if
he does file one doesn’t have to include all his arguments
in it, Smith v. Richert, 35 F.3d 300, 305 (7th Cir. 1994), the
defendant will be able to argue the cost point on remand
unless the district judge finds that it has been forfeited by
being withheld for so long. The majority opinion in this
court need not be an obstacle to the defendant’s making the
argument. In not remarking the distinction between
disability discrimination and expense discrimination, the
opinion merely accepts the parties’ framing of the issues.
USCA-02-C-0072—2-27-08