Paul Turner v. Saloon, Ltd. ( 2010 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 07-2449
P AUL D. T URNER,
Plaintiff-Appellant,
v.
T HE S ALOON, L TD., C HERYL G ILBERG ,
W ILLIAM B RONNER, and M ARK B RAVER,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 05 C 4595—Milton I. Shadur, Judge.
A RGUED JANUARY 9, 2009—D ECIDED F EBRUARY 8, 2010
Before M ANION, R OVNER, and SYKES, Circuit Judges.
S YKES, Circuit Judge. Paul Turner worked as a waiter
for The Saloon, Ltd. (“The Saloon”), a Chicago steak-
house, and claims he was the victim of several forms of
employment discrimination. Turner had a months-long
sexual relationship with his supervisor and claims that
when he ended it, she persistently sexually harassed him.
He also claims The Saloon discriminated against him
2 No. 07-2449
on the basis of a disability; he suffers from psoriasis
and says that the restaurant failed to accommodate his
condition. Turner complained to restaurant management
about the sexual harassment and filed an EEOC charge
about the disability discrimination. He was later fired
for leaving the restaurant in the middle of his shift.
Turner then sued The Saloon and several of its managers
alleging discrimination and retaliation claims under
Title VII of the Civil Rights Act of 1964 (“Title VII”) and
the Americans with Disabilities Act (“ADA”). Turner
also alleged that The Saloon owed him unpaid overtime
under the Fair Labor Standards Act (“FLSA”) and Illinois’
Wage Payment and Collection Act (“Wage Payment Act”).
The district court granted summary judgment for the
defendants, and Turner appealed.
We affirm in part and reverse in part. The district court
properly rejected Turner’s claims, with one exception. The
district court dismissed the hostile-workplace claim
after excluding most of the alleged instances of harass-
ment as time-barred. This was contrary to the Supreme
Court’s decision in National Railroad Passenger Corp. v.
Morgan, 536 U.S. 101, 120 (2002), which held that in a
hostile-workplace claim, acts of harassment falling
outside Title VII’s statute of limitations may be con-
sidered as long as some act of harassment occurred within
the limitations period. When all of the supervisor’s
alleged acts of harassment are considered, Turner has
raised a material issue of fact regarding whether his
work environment was objectively and subjectively
hostile. But Turner is not necessarily entitled to a trial;
No. 07-2449 3
he must also establish a basis for The Saloon to be lia-
ble. We remand for the district court’s consideration of
that issue and any further proceedings that may be re-
quired on Turner’s hostile-workplace claim.
I. Background
Paul Turner worked as a waiter at The Saloon from 1999
to 2004, but the events underlying his employment-dis-
crimination claims occurred between 2002 and 2004.
During this period, William Bronner was The Saloon’s
“owner’s representative,” and in that capacity was re-
sponsible for creating and developing the restaurant’s
operating procedures and reporting directly to its
owners, Sidney and Cheryl Gilberg. Mark Braver was
The Saloon’s general manager; he reported to Bronner
and oversaw the restaurant’s day-to-day operations.
Denise “Dixie” Lake and Bret Dresnik were assistant
managers, and they reported directly to Braver. Braver,
Lake, and Dresnik supervised the remaining staff,
which included Turner.
Turner’s employment history at The Saloon was mixed.
He was one of the restaurant’s highest grossing waiters,
and many regular customers would specifically request
him to serve their tables. On the other hand, Turner’s
personnel file was littered with citations, which seemed
to accumulate at a faster rate in 2004.
In 2002 Turner began a sexual relationship with Denise
Lake, one of his supervisors. It lasted for about nine
months, and Turner claims to have ended it in November
4 No. 07-2449
of 2002. 1 Turner contends that Lake retaliated against him
for ending their relationship by altering his table assign-
ments, writing him up for unwarranted discipline,
and sexually harassing him. He describes at least
five specific instances of overt sexual harassment. In
June 2003 a customer spilled champagne on Turner’s
pants, and when he went to the bar area to find towels
to dry himself off, Lake followed him there. She put
her hands inside his pockets, grabbed his penis, and
said, “You sure are soaked.” In July 2003 Lake pressed
her chest against him and asked, “Don’t you miss me?”
On New Year’s Eve in 2003, Lake asked Turner to
kiss her. In January 2004 Lake approached Turner
from behind and grabbed his buttocks. Finally, in
August 2004 Lake saw Turner with his clothes off while
he was changing into his work uniform and told him
that she missed seeing him naked.
Turner says Lake’s advances were unwanted and he
tried to get her to stop, but his protests only prompted
her to retaliate against him. She reprimanded him in
front of other employees, singled him out for undeserved
disciplinary write-ups, and assigned him to less profitable
tables.
In July 2003, after the second incident of harassment,
Turner approached Braver to complain about Lake’s
1
Lake admits to a sexual relationship but generally denies
the rest of Turner’s assertions. Because we review the case on
The Saloon’s motion for summary judgment, we offer the
version of the facts most favorable to Turner.
No. 07-2449 5
conduct. Turner claims Braver discouraged his com-
plaints and took no remedial action.2 In the spring of
2004, Turner spoke to Bronner about Lake’s harassment
and was told that The Saloon would investigate it.
Bronner and Braver testified in their depositions that
they met with Lake and told her that The Saloon
would not tolerate any type of sexual harassment.
Turner contends this response was insufficient.
Turner also ran into difficulty with restaurant manage-
ment over his use of the employee common area to
change into his work uniform. Turner has psoriasis, a
skin condition that affects his genital area, elbows, and
knees. He claims that wearing underwear increases his
groin sweating, which exacerbates his psoriasis-related
irritation. So he does not wear underwear. As a conse-
quence, Turner frequently exposed himself when
changing into his work uniform in the employee
common area. During the latter half of 2004, a female
employee complained about Turner’s indecent expo-
sures. Braver instituted a new policy that any employee
who exposes himself while changing must change in a
restroom.
Turner thought the men’s bathroom was vile and
claimed this new policy uniquely targeted him. On
2
Braver acknowledges this meeting but says that Turner asked
him not to report Lake’s conduct to Bronner or otherwise
launch a formal investigation; he says Turner was only inter-
ested in having Lake’s harassment stop. Turner denies
Braver’s characterizations.
6 No. 07-2449
October 4, 2004, he filed a charge with the Illinois Depart-
ment of Human Rights alleging that The Saloon discrimi-
nated against him because of his psoriasis. At the same
time, Turner tried to work with Braver to reach some
compromise. He proposed that The Saloon install a
curtain in the common area, creating a private area for
him to change. Braver said he would take this idea up
with Bronner, but he later simply rejected the proposal.
Turner next suggested that he be permitted to change in
a basement room that had no door. Braver said he
would think about it. Without waiting for Braver’s per-
mission, Turner started using the basement room as a
changing area. On October 7 Braver caught Turner
naked while changing in the basement room. He issued
Turner a written warning and suspended him for a week.
When Turner returned from his suspension, Braver
told him he could change in the restroom of a hotel that
was located in the same building as The Saloon; Turner
rejected this suggestion. 3 On October 20, 2004, Turner
filed another charge of disability-related discrimination,
this time with the EEOC.
On December 15, 2004, in the middle of his shift, Turner
left the restaurant without notifying his supervisors and
ran an errand at his bank. No other waiter was on duty
at the time, and customers came in while Turner was
absent. When Turner returned, Braver fired him. Turner
later claimed he had obtained the hostess’s approval to
3
Braver disputes the timing of these events. Again, for pur-
poses of this appeal, we accept Turner’s version.
No. 07-2449 7
leave. He also contended his dismissal was really moti-
vated by his allegations of sex- and disability-related
harassment, not his unexcused absence. Braver says
he discharged Turner based on his disciplinary record
and for leaving the restaurant without permission in
the middle of his shift.
Turner sued The Saloon and several of its managers
alleging employment discrimination because of his sex
and disability in violation of Title VII and the ADA.4
He also asserted retaliation claims alleging he was dis-
missed for complaining about The Saloon’s sex and
disability discrimination. Finally, he alleged a claim
for unpaid overtime under the FLSA and the state
Wage Payment Act. The Saloon moved for summary
judgment, and Turner filed a cross-motion asking the
court to preclude The Saloon from asserting affirmative
defenses to the sexual-harassment count. The district
court granted The Saloon’s motion on all counts and
denied Turner’s motion as moot. This appeal followed.
II. Discussion
We review the district court’s grant of summary judg-
ment de novo. Chaklos v. Stevens, 560 F.3d 705, 710 (7th
Cir. 2009). Summary judgment is appropriate “if the
pleadings, the discovery and disclosure materials on
file, and any affidavits show that there is no genuine
issue as to any material fact and that the movant is
4
We will refer to the defendants collectively as “The Saloon.”
8 No. 07-2449
entitled to judgment as a matter of law.” FED. R. C IV. P.
56(c). We construe all facts and reasonable inferences in
the light most favorable to Turner, the nonmoving party.
See Mobley v. Allstate Ins. Co., 531 F.3d 539, 545 (7th Cir.
2008).
A. Title VII Sexual-Harassment Claim
We begin with Turner’s claim that The Saloon is liable
for Lake’s sexual harassment. Title VII broadly pro-
hibits an employer from “discriminat[ing] against any
individual with respect to his compensation, terms,
conditions, or privileges of employment, because of
such individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1). Title
VII generally covers two types of employment discrim-
ination: so-called discrete acts of discrimination, such
as “termination, failure to promote, denial of transfer, or
refusal to hire,” Morgan, 536 U.S. at 114, and acts that
create a hostile workplace, which “are different in kind
from discrete acts,” id. at 115, and do not require tangible
adverse employment actions, see Meritor Sav. Bank v.
Vinson, 477 U.S. 57, 66-68 (1986); Lapka v. Chertoff, 517
F.3d 974, 982 (7th Cir. 2008).
Turner asserted a hostile-workplace claim based on
Lake’s alleged sexual harassment. This theory requires
Turner to establish that: (1) he was subjected to
unwelcome sexual conduct, advances, or requests;
(2) because of his sex; (3) the acts were severe or pervasive
enough to create a hostile work environment; and
(4) there is a basis for employer liability. Lapka, 517 F.3d
at 982. The Saloon does not contest the first or second
No. 07-2449 9
elements of this claim. It argues instead that most of
the alleged acts of sexual harassment are time-barred
and that the remaining acts are not severe or pervasive
enough to create a hostile work environment.
The district court agreed that most of Lake’s alleged acts
of sexual harassment were time-barred under Title VII’s
statute of limitations, 42 U.S.C. § 2000e-5(e)(1). That
section provides that an EEOC charge must be filed
within one hundred and eighty days after the alleged
unlawful employment practice occurred . . . , except
that [if] . . . the person aggrieved has initially
instituted proceedings with a State or local agency
with authority to grant or seek relief from such prac-
tice . . . , such charge shall be filed . . . within three
hundred days after the alleged unlawful employment
practice occurred.
Id. The district court read the statute and our cases to
prohibit it from considering any of Lake’s discrete acts of
discriminatory conduct that occurred prior to 300 days
from Turner’s EEOC filing.5 This decision excluded all
5
The district court might have incorrectly settled on the 300-
day limitations period rather than the 180-day limitations
period. By the statute’s own terms, the 180-day period applies
except if the plaintiff initially instituted proceedings with a
State or local agency. 42 U.S.C. § 2000e-5(e)(1). The record
suggests that Turner did not file any sexual-harassment charge
with an Illinois agency. In any event, this potential error does
not affect our analysis. Lake allegedly told Turner that she
(continued...)
10 No. 07-2449
but Lake’s August 2004 comment that she missed seeing
Turner naked, which the court held was not sufficiently
severe or pervasive to constitute unlawful discrimination.
The district court’s approach to the statute of limita-
tions conflicts with the Supreme Court’s decision in
Morgan. There, the Court held that the statute of limita-
tions applies differently depending on whether the
plaintiff is asserting a claim for a discrete act of employ-
ment discrimination or for a hostile work environment.
For the former category of claim, “the statute [of limita-
tions] precludes recovery for discrete acts . . . that occur
outside the statutory time period.” 536 U.S. at 105. For
the latter category, however, “consideration of the entire
scope of a hostile work environment claim, including
behavior alleged outside the statutory time period, is
permissible for the purposes of assessing liability, so long
as an act contributing to that hostile environment takes
place within the statutory time period.” Id. Thus, under
Morgan, an employee claiming a hostile work environ-
ment “may file the charge (under Title VII) . . . within
the statutory time from the last hostile act.” Pruitt v. City
of Chicago, 472 F.3d 925, 927 (7th Cir. 2006).
The district court misapplied Morgan. The court referred
to Lake’s acts of sexual harassment as “discrete acts of
discriminatory conduct,” but Turner’s sexual-harassment
claim rests on a hostile-workplace theory, as is typical of
5
(...continued)
missed seeing him naked in August 2004, which falls
within both a 300-day and 180-day window from January 18,
2005, the date of Turner’s EEOC filing.
No. 07-2449 11
Title VII cases presenting similar allegations of inappro-
priate touching. See, e.g., Kampmier v. Emeritus Corp., 472
F.3d 930, 941-42 (7th Cir. 2007); Patton v. Keystone RV
Co., 455 F.3d 812, 814 (7th Cir. 2006); Valentine v. City of
Chicago, 452 F.3d 670, 682 (7th Cir. 2006); Worth v. Tyer, 276
F.3d 249, 268 (7th Cir. 2001); Hostetler v. Quality Dining, Inc.,
218 F.3d 798, 806-08 (7th Cir. 2000); Baskerville v. Culligan
Int’l Co., 50 F.3d 428, 430-31 (7th Cir. 1995); Saxton v. Am.
Tel. & Tel. Co., 10 F.3d 526, 534 (7th Cir. 1993). Under
Morgan, then, the district court should have asked
whether any of Lake’s alleged acts of sexual harassment
occurred within the statutory time period; it is undis-
puted that her August 2004 suggestive comment fell
within that window. 6 As such, the court should have
analyzed whether all of Lake’s conduct, taken as a
whole, created an actionable hostile work environment.
The answer to that question turns on whether Lake’s
alleged harassment was “severe or pervasive enough to
create a hostile work environment.” Lapka, 517 F.3d at 982.
“Whether the harassment rises to this level turns on a
constellation of factors that include ‘the frequency of the
discriminatory conduct; its severity; whether it is physi-
cally threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with
an employee’s work performance.’ ” Hostetler, 218 F.3d
6We note that The Saloon does not argue that Lake’s sexual
harassment stopped once Bronner and Braver met with her.
We assume that Lake’s actions, including her August 2004
comment, were part of the same course of conduct.
12 No. 07-2449
at 806-07 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23
(1993)). Further, a claim for a hostile work environment
must be tested both objectively and subjectively. Id. at
807. That is, the plaintiff must subjectively believe that
the harassment was sufficiently severe or pervasive to
have altered the working environment, and the harass-
ment must also be sufficiently severe or pervasive, from
the standpoint of a reasonable person, to create a hostile
work environment.
For summary-judgment purposes, the subjective ele-
ment is rather easily established in this case. Turner
claims that he told Lake to stop her unwanted sexual
advances. It is undisputed that Turner complained to
Braver and to Bronner on different occasions about
Lake’s behavior. Turner’s complaints prompted Bronner
to meet with Lake and explain that the restaurant did not
tolerate any sexual harassment of employees. At the
very least, Turner has created a genuine issue of material
fact on the subjective element of the claim. See Valentine,
452 F.3d at 682; Worth, 276 F.3d at 267; Hostetler, 218 F.3d
at 807.
We also think the evidence is sufficient to create a
genuine issue of fact on the question whether Lake’s
advances were objectively hostile. We have acknowl-
edged before that “[d]rawing the line” between what is
and is not objectively hostile “is not always easy.” Basker-
ville, 50 F.3d at 430.
On one side lie sexual assaults; other physical contact,
whether amorous or hostile, for which there is no
consent express or implied; uninvited sexual solicita-
No. 07-2449 13
tions; intimidating words or acts; obscene language
or gestures; pornographic pictures. On the other side
lies the occasional vulgar banter, tinged with sexual
innuendo, of coarse or boorish workers.
Id. (citations omitted). Perhaps the most heavily empha-
sized factor in our cases is whether there was inappro-
priate touching. See Worth, 276 F.3d at 268 (“The fact
that conduct . . . involves touching as opposed to verbal
behavior increases the severity of the situation.”). This is
especially true when the touching is of “an intimate body
part.” Id. (“We have previously recognized that direct
contact with an intimate body part constitutes one of the
most severe forms of sexual harassment.”). For example,
we have affirmed a damages award or at least rejected
summary judgment where there were allegations that a
defendant placed his hand on the plaintiff’s breast for
several seconds, id., when a co-worker forcibly kissed the
plaintiff and nearly removed her brassiere, Hostetler, 218
F.3d at 807-08, when a manager slid his hand up the
plaintiff’s shorts, reaching her underwear, Patton,
455 F.3d at 814, and when the plaintiff’s supervisor
“hugged her fifty to sixty times, jumped in her lap ten
times, [and] touched her buttocks thirty times,” Kampmier,
472 F.3d at 941. Indeed, in cases where we have held
that the evidence was insufficient to establish an objec-
tively hostile work environment, we have emphasized
that no touching occurred, e.g., Baskerville, 50 F.3d at 431(immediately after offering factors to consider, noting the
“[supervisor] never touched the plaintiff”), or that the
touching was “relatively limited,” Saxton, 10 F.3d at 534.
14 No. 07-2449
Judged against these cases, Turner’s complaints are
sufficient to survive summary judgment. Turner has
identified at least five instances of explicit sexual harass-
ment, three of which were aggressively physical. Turner’s
claim that Lake grabbed his penis through his pockets
is probably severe enough on its own to create a
genuine issue of material fact. See Jackson v. County of
Racine, 474 F.3d 493, 499 (7th Cir. 2007) (“It is important
to recall that harassing conduct does not need to be both
severe and pervasive. One instance of conduct that is
sufficiently severe may be enough.” (citation omitted)). In
addition, Turner also testified that Lake pressed her
chest against him while making a sexually suggestive
comment on one occasion and grabbed his buttocks on
another occasion. She also made suggestive comments
when watching Turner change into his uniform. Finally,
Turner claims that Lake punished him for refusing her
sexual advances by assigning him to less profitable
tables and by reprimanding him in front of other em-
ployees. These allegations, taken together, create a
genuine issue of material fact on Turner’s hostile-work-
place claim.
Two features of this case make it unusual but do not
affect our result. First, the plaintiff is a male and his
supervisor is a female; almost all of our cases involving
sexual harassment have the sexes reversed. Nevertheless,
“[t]he law is well settled that sexual harassment of an
employee by a supervisor is not confined to instances
involving male supervisors and female subordinates; it
can occur in the female supervisor-male subordinate
context.” Casiano v. AT&T Corp., 213 F.3d 278, 285 (5th Cir.
No. 07-2449 15
2000). Like the Fifth Circuit, we find it helpful to “hypo-
thetically transpose the sexes of the parties in this case.”
Id. If Lake were male and Turner female, and the allega-
tions were similar, there would be no doubt that the
case would survive summary judgment. The same con-
clusion follows here.
Second, Turner and Lake had a nine-month consensual
sexual relationship prior to the alleged sexual harass-
ment. We have said in the past that “whether [the
victim] had dated [the harasser] prior to the events in
question [is] by no means dispositive of” the sexual-
harassment claim. Ammons-Lewis v. Metro. Water Reclama-
tion Dist. of Greater Chi., 488 F.3d 739, 746 (7th Cir. 2007);
accord Johnson v. West, 218 F.3d 725, 729-30 (7th Cir. 2000).
To be sure, “the existence of a current or former social
relationship between the harasser and the harassee can
shed light on such relevant questions as whether the
complained-of conduct was unwelcome, whether it
resulted in a workplace that the harassee subjectively
experienced as hostile, and whether it occurred because
of the harassee’s sex.” Ammons-Lewis, 488 F.3d at 746-47.
But at this stage, all Turner must do is provide enough
evidence for a reasonable jury to conclude that his work-
place was both subjectively and objectively hostile. As we
have explained, we think Turner has reached this mark.
The next question is whether “there is a basis for em-
ployer liability.” Lapka, 517 F.3d at 982 (quotation omit-
ted). The district court did not reach this issue, having
excluded most of the alleged acts of harassment and
concluded that the one that remained was insufficient to
16 No. 07-2449
establish a hostile workplace. Because Lake was Turner’s
immediate supervisor, The Saloon’s liability may turn on
its ability to assert affirmative defenses under Burlington
Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), and Faragher
v. City of Boca Raton, 524 U.S. 775 (1998). These are
matters for the district court to consider in the first in-
stance, and the court remains free on remand to con-
sider whether The Saloon may be entitled to summary
judgment in its favor on alternative grounds.
B. Title VII Retaliation Claim
Turner next argues that The Saloon fired him in retalia-
tion for complaining about Lake’s sexual harassment. Title
VII generally prohibits an employer from retaliating
against an employee for conduct that is protected under
the Act. 42 U.S.C. § 2000e-3(a). Under the direct method
of proof, Turner must “present evidence of (1) a statutorily
protected activity; (2) a materially adverse action taken
by the employer; and (3) a causal connection between the
two.” Amrhein v. Health Care Serv. Corp., 546 F.3d 854, 858
(7th Cir. 2008). He easily satisfies the first two elements:
He complained to The Saloon’s management about Lake’s
alleged sexual harassment and was later fired. Turner’s
success thus hinges on whether he can establish a
causal connection between the two.
Turner maintains there is a sufficient temporal connec-
tion between the two events for a reasonable jury to infer
causation. We disagree. We have repeatedly held that
suspicious “timing alone is insufficient to establish a
genuine issue of material fact to support a retaliation
No. 07-2449 17
claim.” Kampmier, 472 F.3d at 939; see also Argyropoulos
v. City of Alton, 539 F.3d 724, 734 (7th Cir. 2008) (seven-
week interval does not preclude summary judgment).
Here, there is more than half a year separating Turner’s
complaints to Bronner and his eventual dismissal—far
too long to withstand summary judgment.
Turner suggests that a March 2004 employee evalua-
tion in which Braver gave him a positive review is
evidence of a causal connection between his complaint
and his termination. The fact that Braver gave Turner
a positive evaluation months after Turner initially com-
plained to Braver strongly suggests the opposite—that
Braver’s December 2004 decision to fire Turner was not
motivated by his complaints. Turner’s argument also
fails to account for the fact that from March 2004 until
his termination, he received at least ten reprimands
from management for, among other things, “strong—
arm[ing]” an employee, failing to work with busboys,
insubordination to Braver, having a “meltdown” in the
kitchen, failing to attend to customers, and failing to
show up for work as scheduled. In addition, he
received a week-long suspension for exposing himself
while changing in the basement of the restaurant. Faced
with this string of discipline, and with the ten-month
gap separating his complaint about Lake’s sexual harass-
ment from his termination, no rational jury could con-
clude that there was a causal connection between
Turner’s statutorily protected conduct and his termination.
Turner also attempts to lessen the force of his
unexcused absence in the middle of his shift by claiming
18 No. 07-2449
that he had obtained permission to leave from the
hostess, whom he calls a “pseudomanager.” Even if we
assume that he received such permission and that the
hostess had the authority to grant The Saloon’s only on-
duty waiter permission to run errands during business
hours—both points of contention—the record suggests
that Braver did not know about Turner’s claim of permis-
sion. According to both Turner’s and Braver’s deposi-
tions, when Turner returned from his bank errand, Braver
called him into his office and fired him for being absent
without leave while customers awaited service. Turner
did not tell Braver that he had permission to leave the
restaurant or even argue about his termination, so his
belated claim of permission from a “psuedomanager” is
beside the point. Turner has not established a triable
issue of fact on his retaliation claim under the direct
method of proof.
Turner also proceeds under the indirect method of
proof. The distinction between the two methods of proof
“is often fleeting” largely “[b]ecause both methods
allow the use of circumstantial evidence.” Martino v. MCI
Commc’ns Servs., Inc., 574 F.3d 447, 452 (7th Cir. 2009). In
any event, under the indirect method, Turner must
“prov[e] that []he (1) engaged in a statutorily protected
activity; (2) met h[is] employer’s legitimate expectations;
(3) suffered an adverse employment action; and (4) was
treated less favorably than similarly situated employees
who did not engage in statutorily protected activity.”
Amrhein, 546 F.3d at 859.
Turner fails to establish his prima facie case essentially
for the same reasons he fails under the direct method: No
No. 07-2449 19
rational jury could believe that Turner was meeting The
Saloon’s legitimate job expectations. We have just de-
scribed the litany of citations that Turner received from
March to December of 2004. Further, we add that Turner
cannot point to any other employee with a similarly
checkered personnel file who was treated differently.
Indeed, Turner has not suggested that anyone else failed
to comply with similar management policies, and there
is no evidence in the record that any other waiter left
the restaurant completely unattended during business
hours without being disciplined. The district court prop-
erly granted summary judgment for the defendants on
Turner’s Title VII retaliation claim.
C. ADA Discrimination Claim
We turn next to Turner’s claim for disability discrimina-
tion in violation of the ADA. The ADA makes it unlawful
for an employer to “discriminate against a qualified
individual on the basis of disability in regard to . . . terms,
conditions, and privileges of employment.” 42 U.S.C.
§ 12112(a). Turner argues that The Saloon discriminated
against him in violation of the ADA by requiring him
to change in the “fecal contaminated, unsanitary” men’s
bathroom rather than in the employee common area. He
further faults The Saloon’s alleged failure to accom-
modate his disability when it rejected his proposals to
let him change in the basement or behind a curtain.
For Turner to survive summary judgment under these
theories, he must first show that he is “disabled” within
the meaning of the Act. Id.; EEOC v. Lee’s Log Cabin, Inc.,
20 No. 07-2449
546 F.3d 438, 442 (7th Cir. 2008); Mobley, 531 F.3d at 545.
The ADA defines “disability” as:
(A) a physical or mental impairment that substan-
tially limits one or more major life activities of such
individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment . . . .
42 U.S.C. § 12102(1). Turner maintains that his psoriasis
constitutes a physical impairment that limits his ability
to walk, a major life activity under 29 C.F.R. § 1630.2(i).
For this argument to succeed, Turner must establish that
he is “substantially limited” in his ability to walk.
The applicable ADA regulations explain that a person
is “substantially limited” in a major life activity when he
is “[s]ignificantly restricted as to the condition, manner
or duration under which [he] can perform a particular
major life activity as compared to the condition, manner,
or duration under which the average person in the
general population can perform that same major life
activity.” 29 C.F.R. § 1630.2(j)(1)(ii). This regulation adds
that “an individual who, because of an impairment, can
only walk for very brief periods of time would be sub-
stantially limited in the major life activity of walking.” Id.§ 1630 app. On the other hand, “an individual who had
once been able to walk at an extraordinary speed would
not be substantially limited in the major life activity
of walking if, as a result of a physical impairment, he
or she were only able to walk at an average speed, or
even at moderately below average speed.” Id.
No. 07-2449 21
Our cases further clarify when an individual is sub-
stantially limited in his ability to walk. We have held
that walking with difficulty is not a significant restriction
on walking. Squibb v. Mem’l Med. Ctr., 497 F.3d 775, 785
(7th Cir. 2007). We have also held that an employee is not
disabled when he admitted that he could walk “distances
of less than a mile ‘consistently,’ [and] that a mile walk
‘wouldn’t be any problem as long as I’m paying attention
to what I’m doing.’ ” Moore v. J.B. Hunt Transp., Inc., 221
F.3d 944, 951 (7th Cir. 2000). Other circuits have reached
similar determinations. See Wood v. Crown Redi-Mix, Inc.,
339 F.3d 682, 685 (8th Cir. 2003) (no disability where
plaintiff could walk a quarter-mile before having to
stop and rest); Black v. Roadway Express, Inc., 297 F.3d
445, 451 (6th Cir. 2002) (no disability where plaintiff walks
with a limp and plaintiff’s knee becomes “dysfunctional”
after two miles of walking); Taylor v. Pathmark Stores, Inc.,
177 F.3d 180, 186 (3d Cir. 1999) (no disability where
employee walked with a limp and required a ten-minute
break during every hour of walking or standing).
It is clear from these cases that Turner has not come
close to establishing that his psoriasis substantially
limits his ability to walk. At worst, he says his psoriasis
periodically causes “severe pain causing him to walk
with his legs more astride appearing as a limp.” Turner
admits to playing pick-up basketball and baseball a few
times per week during the summer. Indeed, he even
testified that he can “bicycle and walk usually fine.” In
light of these admissions, Turner’s claim that he is
disabled under the meaning of the Act fails as a matter
of law. The district court properly granted summary
22 No. 07-2449
judgment dismissing Turner’s disability-discrimination
claim.
D. ADA Retaliation Claim
Turner also claims he was fired in retaliation for com-
plaining about The Saloon’s no-nakedness policy. The
district judge did not mention this count in his opinion
granting summary judgment for the defendants, and for
understandable reason. Despite alleging separate claims
for retaliation under both the ADA and Title VII,
Turner’s briefs in the district court reference his “retalia-
tion claim” as a whole. Turner could have easily avoided
confusion by keeping his causes of action separate
from one another. Regardless, the parties have argued
the ADA-retaliation claim separately on appeal; for the
sake of completeness, we will briefly sketch the re-
quired analysis.
The fact that Turner is not disabled under the ADA is not
fatal to his retaliation claim. 42 U.S.C. § 12203(a); Squibb,
497 F.3d at 786. “The Act prohibits an employer from
retaliating against an employee who has raised an
ADA claim, whether or not that employee ultimately
succeeds on the merits of that claim.” Squibb, 497 F.3d at
786. As in the Title VII context, Turner may proceed
under the direct and indirect methods of proof. To prove
retaliation under the direct method, Turner must “pres-
ent[] evidence of: ‘(1) a statutorily protected activity; (2) an
adverse action; and (3) a causal connection between the
two.’ ” Id. (quoting Burks v. Wis. Dep’t of Transp.,
464 F.3d 744, 758 (7th Cir. 2006)). Turner meets the first
No. 07-2449 23
two elements of the test because he filed discrimination
charges with the EEOC and was later fired. His claim
fails, however, under the causal-connection element.
Turner again relies mostly on timing. Although the tempo-
ral connection is closer for his ADA-retaliation claim, it
still is not enough. He was fired roughly two months
after he filed his EEOC charge. We have previously
held that a seven-week proximity in time is not sufficient
to establish a causal connection to withstand summary
judgment. See Argyropoulos, 539 F.3d at 734.
Beyond timing, Turner offers the same arguments as
he did in the Title VII retaliation context, which we
have already rejected. Turner’s ADA-retaliation claim
therefore fails under the direct method of proof. Similarly,
for the reasons canvassed above, Turner has not estab-
lished his prima facie case under the indirect method
because he cannot show either that he was performing
his job satisfactorily or that there is any similarly
situated employee who was treated differently. See
Squibb, 497 F.3d at 788-89.
E. Wage Claims
Finally, we turn to Turner’s wage claims. Turner
asserts that from late 2003 through 2004, he worked with
Lake on several Sundays and that Lake often directed
him to alter his time records to make him ineligible for
24 No. 07-2449
overtime pay in violation of the FLSA, 29 U.S.C. § 207.7Turner believes he has been denied a “substantial
amount” of money because of Lake’s actions. He also
suggests he has information confirming the amount of
overtime he was denied, but this “information” has
never been placed in the record. The Saloon challenged
Turner’s claims by introducing its payroll records, which
show that Lake and Turner worked together on only
four Sundays during the time period at issue. On two
of those Sundays, Turner’s hours for the week were
extremely low, suggesting that any time-shaving on
Sunday was unnecessary. For the other two Sundays,
Turner actually received overtime pay.
The district court granted summary judgment dis-
missing the wage claims, concluding that Turner’s argu-
ments were “unsupported ipse dixit [that] is flatly
refuted by the hard evidence proffered by Saloon.” The
court’s decision was manifestly correct; this claim is
flimsy in the extreme. Turner has the burden of proving
that he performed overtime work for which he was not
properly compensated, and if he contends that his em-
ployer’s records are not accurate—which he does—then
he must “produce[] sufficient evidence to show the
amount and extent of that work as a matter of just and
reasonable inference.” Anderson v. Mt. Clemens Pottery
7
Because the protections of the Illinois Wage Payment and
Collection Act are coextensive with those of the FLSA, Condo
v. Sysco Corp., 1 F.3d 599, 601 n.3 (7th Cir. 1993), our analysis
of Turner’s FLSA claim applies equally to his Illinois Wage
Payment Act claim.
No. 07-2449 25
Co., 328 U.S. 680, 687 (1946), superseded on other grounds
by statute, Portal-to-Portal Act of 1947, 29 U.S.C. §§ 251-
262. Although Turner disputes the accuracy of The
Saloon’s records, his mere assertions are insufficient to
create a jury issue.8 See Jackson v. E.J. Brach Corp., 176
F.3d 971, 985 (7th Cir. 1999); see also Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (opponent
of summary judgment must do more than raise “some
metaphysical doubt as to the material facts”). Turner’s
wage claims were properly dismissed.
For the foregoing reasons, the judgment of the district
court is A FFIRMED to the extent that it dismissed Turner’s
ADA claims, his overtime claims, and his Title VII re-
taliation claim. Regarding Turner’s sexual-harassment
claim under Title VII, the judgment is R EVERSED and the
case is R EMANDED for further proceedings consistent
with this opinion.
8
The one piece of record evidence Turner points to—a docu-
ment cryptically saying “Turner 38.88 hours—cut first”—is
inconclusive at best.
2-8-10