Linda Rowlands v. United Parcel Service, Incorpo ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-3281
LINDA ROWLANDS,
Plaintiff-Appellant,
v.
UNITED PARCEL SERVICE –
FORT WAYNE,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, Fort Wayne Division
No. 13-cv-059 — Robert L. Miller, Jr. Judge.
____________________
ARGUED MAY 22, 2018 — DECIDED AUGUST 24, 2018
____________________
Before FLAUM, and RIPPLE, Circuit Judges, and GETTLEMAN,
District Judge. ∗
GETTLEMAN, District Judge. Linda Rowlands claims that
United Parcel Service (“UPS”) discriminated against her be-
cause she had a disability, failed to accommodate her
∗ Of the Northern District of Illinois, sitting by designation.
2 No. 17-3281
disability, and retaliated against her when she requested ac-
commodations, all in violation of the Americans with Disabil-
ities Act, 14 U.S.C. § 12111 et seq. (“ADA”). The district court
granted UPS’ motion for summary judgment on all of Row-
lands’ claims, finding that she did not have a disability, had
waived her failure to accommodate claim, and failed to estab-
lish a prima facie case for retaliation. Rowlands appeals only
her failure to accommodate and retaliation claims. Because
there are genuine disputes of fact that are material to Row-
lands’ failure to accommodate and retaliation claims, neither
of which were waived, we reverse and remand.
I.
On appeal of a district court’s summary judgment deci-
sion we summarize the facts in the light most favorable to the
non-moving party, in this case Rowlands, and draw all rea-
sonable inferences in her favor. Malina v. Hospira, Inc., 762
F.3d 552, 554 (7th Cir. 2014).
Rowlands worked for UPS at its Fort Wayne facility for
more than 25 years before she was fired on July 19, 2012, for
changing the time on her time card. In response, Rowlands
filed a Charge of Discrimination with the Equal Employment
Opportunity Commission (“EEOC”) alleging discrimination
based on her age, sex, and perceived disabilities. Rowlands
also filed a grievance with her union and was ultimately rein-
stated. During the grievance proceedings Rowlands told her
boss, Steve Liskey, that she believed that she had been fired
not for the alleged time card fraud, but because of a knee in-
jury.
Rowlands had, in fact, suffered a number of injuries in the
years leading up to her termination, starting in 2005 when she
No. 17-3281 3
was hit by a semi-truck and needed a hip replacement. Be-
tween February and July of 2012 alone Rowlands suffered
three knee injuries, one of which took place at UPS and re-
quired surgery. Over the years Rowlands took significant
time off from work on multiple occasions to recover from her
injuries.
Rowlands returned to work at UPS after being reinstated
on September 27, 2012. She was still recovering from her knee
surgery at the time but had been cleared by her doctor to work
with no restrictions. To aid in her recovery Rowlands wore
two different knee braces that contained ice packs and ele-
vated her leg whenever possible. Rowlands claims that she
knew UPS intended to terminate her again because her em-
ployee ID was never reactivated in UPS’ computer system,
which meant that she had to use a supervisor’s ID to process
packages.
According to Rowlands, there were other signs that her
days at UPS were numbered. She and her union representa-
tive, Steve Harms, claim that UPS established a new set of
rules that applied only to Rowlands. For example, Rowlands
was no longer allowed to take breaks with coworkers. Addi-
tionally, Rowlands alone was prohibited from moving her car
from a far, dimly-lit employee parking lot to a closer lot when
first shift employees left, making parking spaces closer to the
building available. Harms claims that Rowlands’ supervisors
put her, and only her, under a microscope and watched her
constantly, even documenting when she went to the bath-
room and for how long. Rowlands was written up on her first
day back for failing to record all meals and breaks properly.
She was written up again the following day for leaving with-
out permission, which she denied doing.
4 No. 17-3281
Rowlands also faced a number of challenges related to her
knee injuries both before and after she was terminated for
time card fraud. She claims that she discussed her limitations,
specifically the severity of her knee pain, with Liskey and that
she requested accommodations for her knee injuries, but they
were not granted. For example, Rowlands claims that she
asked to be trained on computer data entry and forklift oper-
ation so she would have to stand less, but was denied. She
also asked to use a first-floor bathroom, as opposed to the sec-
ond-floor employee bathroom, because she had trouble
climbing stairs. Liskey denied that request, telling Rowlands
that the first-floor bathroom was for management only.
The employee break room was also on the second floor,
which meant Rowlands had to sit in the loading dock area to
ice and elevate her knee on her breaks. She was unable to do
so elsewhere because she was not allowed to leave the build-
ing, as were other UPS employees, and had great difficulty
navigating the stairs. According to Rowlands, this made it
nearly impossible to elevate her knee because she had to sit
sideways. Rowlands further claims that she could not elevate
her leg at her work station because when she did her
coworker, Joe Gropengieser, reported her to Liskey for sitting
on the job. Rowlands also requested repeatedly that the six-
foot cord to her scanner be replaced with a shorter one be-
cause it was a hazard. It was not replaced, and Rowlands
tripped on it, re-injuring her knee.
UPS fired Rowlands for the second and final time on Jan-
uary 2, 2013. This time Rowlands was fired for violating UPS’
“zero tolerance” Crisis Prevention and Workplace Violence
Prevention Policy (“Policy”). That Policy prohibits “the pos-
session and/or use of weapons by any employee on UPS
No. 17-3281 5
property” and any “violence related conduct” including
threats and “comments or behavior that could reasonably be
interpreted as an intent to do harm to employees.” Rowlands
allegedly violated the Policy on the night of December 19,
2012. As she was leaving that night, Rowlands took a taser out
of her coat pocket, turned it on, looked at Gropengieser, who
was about ten feet away, and said, “This is so if anyone wants
to mess with me.” Rowlands then walked out the back door
and to her car in the far away, dimly-lit parking lot.
After that exchange Gropengieser reported that Rowlands
had threatened him. During an investigation of the incident
Gropengieser submitted a written statement to Liskey claim-
ing that he felt “total[l]y threatened” by Rowlands. The next
day another UPS employee, and friend of Gropengieser, sub-
mitted a written statement to a security guard alleging that he
saw Rowlands with a taser on December 13, 2012. Rowlands
also submitted a written statement as part of the investigation.
Then, on December 27, 2012, an anonymous call was placed
to the UPS hotline. The caller claimed to have seen Rowlands
“zap” a taser on December 14, 2012. UPS determined that
Gropengieser’s complaint was substantiated and that the of-
fense was one of extreme seriousness, warranting immediate
termination.
Rowlands does not deny, and has never denied, either car-
rying a taser or turning it on before leaving UPS. In fact, Row-
lands admits to doing exactly that every night at the end of
her shift for at least ten years. Rowlands’ coworkers corrobo-
rated her account and expressed surprise that Rowlands was
disciplined for carrying a taser after having done so for so
long. According to Rowlands, she carried the taser not as a
weapon, but as personal protection while she walked alone
6 No. 17-3281
through a dark and desolate parking lot late at night. During
the time that she had worked at UPS, Rowlands’ car had been
broken into twice and vagrants had been discovered sleeping
in UPS delivery trucks. These events made Rowlands feel un-
safe in the parking lot, particularly after she was told that she
could no longer move her car closer to the building during her
breaks.
Gropengieser’s claim that he felt threatened by Rowlands
was described by UPS employees as “truly, truly laughable”
if not “an outright lie,” “just so obviously ridiculous,” and
“truly ironic.” The same UPS employees describe Gropengie-
ser as a nearly six-foot-tall competitive body builder in his
thirties known for aggression and bullying who had been
fired by UPS once for fighting with a coworker in a nearby
parking lot. In fact, Harms claims that Gropengieser threat-
ened him and challenged him to a fight, in Liskey’s office, af-
ter he confronted Gropengieser for, as Harms describes it,
falsely lamenting Rowlands’ termination despite having been
at least partially responsible for it. According to these employ-
ees, it was not possible for Gropengieser to have felt threat-
ened by Rowlands, a woman in her fifties with bad knees.
According to Rowlands, she in no way threatened
Gropengieser when she took her taser out and turned it on to
make sure that it was working before she left UPS, as she had
done nightly for more than a decade. Rowlands also claims
that she was unaware that carrying a taser violated the Policy,
and that other employees carried similar devices, both tasers
and pepper spray, and even large knives, on a regular basis.
Rowlands’ understanding was that the Policy prohibited em-
ployees from carrying firearms only. This was also corrobo-
rated by two of Rowlands’ coworkers, one of whom carried
No. 17-3281 7
pepper spray, and both of whom believed that UPS prohib-
ited firearms only. Indeed, Harms was so convinced of this
that he attempted to talk Liskey out of firing Rowlands, sug-
gesting that it was unjustified because there was no documen-
tation in the building indicating that tasers were prohibited,
and it was a first offense. According to Harms, Liskey was un-
relenting, responding that Rowlands “has been a constant
pain in my butt” and “that management has been on me con-
tinually about this.”
After she was fired the second time Rowlands filed an-
other Charge of Discrimination with the EEOC, this time al-
leging discrimination based on her knee-related disability, or
UPS’ regarding her as having a disability, failure to accom-
modate that disability, and retaliation for engaging in pro-
tected conduct. This lawsuit followed. Rowlands attached
both of her EEOC charges to her complaint filed in the district
court. UPS moved for summary judgment on all claims except
for Rowlands’ claim that UPS failed to reasonably accommo-
date her disability, which went unmentioned. In her response
brief, Rowlands claimed that UPS had conceded this claim by
failing to respond to it. UPS argued in its reply brief that Row-
lands had not asserted a failure to accommodate claim in her
complaint, and attaching the EEOC charge to the complaint
was insufficient to put UPS on notice of the claim. Rowlands
was granted leave to file a sur-reply to that argument, and ul-
timately lost when the district court granted UPS’ motion for
summary judgment in its entirety, including the failure to ac-
commodate claim.
In granting UPS’ motion for summary judgment the dis-
trict court first found that Rowlands did not have a disability
8 No. 17-3281
when she was fired in January 2013. 1 According to the district
court, no reasonable jury could find otherwise based on the
medical evidence in the record, specifically Rowlands’ ortho-
pedists’ opinion that she could return to work with no re-
strictions as of September 2012. The district court then held
that Rowlands failed to properly state a failure to accommo-
date claim because, although the 2013 EEOC charge attached
to the complaint alleged that Rowlands had sought accommo-
dations, it did not explicitly state that UPS denied that re-
quest. 2 As for Rowlands’ ADA retaliation claim, the district
court stated that Rowlands attempted to prove it using the
burden-shifting method and analyzed it accordingly. Under
such analysis, the district court held that the claim failed be-
cause Rowlands had not identified a similarly situated em-
ployee who was treated more favorably.
II.
On appeal, Rowlands argues that the district court com-
mitted reversible error when it found that she failed to state a
failure to accommodate claim because her EEOC charge did
not explicitly state that her requests for reasonable accommo-
dations were denied. According to Rowlands, the district
court erred by holding her to a heightened pleading standard,
and by neglecting to allow her an opportunity to respond to
that point, which was not raised by UPS or addressed by
1 Because Rowlands appeals the district court’s rulings related only to
her claims that she requested, but was denied, reasonable accommoda-
tions and was retaliated against for making such requests, this court will
not address the district court’s analysis of any of Rowlands’ remaining
claims.
2 Rowlands acknowledged in the district court that she failed to allege
a failure to accommodate claim in the body of her complaint.
No. 17-3281 9
either party. Rowlands further argues that the district court
erred in analyzing her retaliation claim under the burden-
shifting framework and ultimately denying her claim for fail-
ure to identify a similarly situated employee who was treated
more favorably.
Our review of the district court’s grant of summary judg-
ment is de novo, and we can affirm only if there is no genuine
issue of material fact and no reasonable jury could find for
Rowlands. Johnson v. Advocate Health & Hosps. Corp., 892 F.3d
887, 894 (7th Cir. 2018). We view all the facts and make all rea-
sonable inferences in her favor. Id. at 893. We have stressed in
the past, and it is worth repeating, that “a court may not make
credibility determinations, weigh the evidence, or decide
which inferences to draw from the facts” on summary judg-
ment, and must “avoid[] the temptation to decide which
party’s version of the facts is more likely true.” Id. (internal
quotations omitted). This can be a difficult task, particularly
in fact-intensive cases such as this.
The ADA prohibits employers from discriminating
against qualified individuals due to a disability. Rodrigo v.
Carle Found. Hosp., 879 F.3d 236, 241 (7th Cir. 2018). Discrimi-
nation under the ADA includes failing to make reasonable ac-
commodations to a qualified employee’s disability. Id. The
ADA also prohibits retaliating against individuals (qualified
or not) who have engaged in activities protected by the ADA,
such as filing a Charge of Discrimination with the EEOC or
requesting reasonable accommodations. Id. at 243. A court’s
conclusion that an individual does not have a disability does
not foreclose a retaliation claim. Dickerson v. Bd. of Trustees of
Cmty. Coll. Dist. No. 522, 657 F.3d 595, 601 (7th Cir. 2011) (cit-
ing Squibb v. Mem’l Med. Ctr., 497 F.3d 775, 786 (7th Cir. 2007)).
10 No. 17-3281
A. Failure to Accommodate
To establish a failure to accommodate claim Rowlands
must show that: (1) she is both qualified and has a disability;
(2) UPS was aware of her disability; and (3) UPS failed to ac-
commodate her disability. Guzman v. Brown Cty., 884 F.3d 633,
642 (7th Cir. 2018). The district court found no need to discuss
the first prong in its analysis because it held that Rowlands
failed to satisfy the third, but it implicitly found that Row-
lands failed to satisfy the first prong when it held that no rea-
sonable jury could find Rowlands disabled for purposes of
her disability discrimination claim, which is not a subject of
this appeal. As for the third prong, the district court held that
Rowlands failed to satisfy it by not explicitly stating in her
2013 EEOC charge that UPS failed to grant the accommoda-
tions she requested. We find both conclusions erroneous.
Taking the second point first, Rowlands sufficiently stated
a failure to accommodate claim in her 2013 EEOC charge,
which was attached to her amended complaint and read, in
pertinent part, as follows:
Complainant tried to engage in the interactive
process and tried to get reasonable accommoda-
tions (such as wearing her knee brace, eliminat-
ing the existence of the cord which Complainant
ultimately tripped over causing more serious
injuries to her knee).
Complainant [] contends that she was retaliated
against for having engaged in protected con-
duct–filing previous Charges of Discrimination
and trying to engage in the interactive
No. 17-3281 11
process/making requests for reasonable accom-
modations.
Rowlands concedes that these sentences were absent from
her amended complaint, which did not articulate a failure to
accommodate claim, but argues, as she did in the district
court, that under Federal Rule of Civil Procedure 10(c) her at-
tached EEOC charges are part of the pleading and sufficient
to put UPS on notice that she was asserting a failure to accom-
modate claim. The district court implicitly rejected UPS’ argu-
ment to the contrary by analyzing the language contained in
the EEOC charges, but then held that UPS was not put on no-
tice of the claim because Rowlands did not explicitly state that
her requests for reasonable accommodations were denied.
The district court properly incorporated the facts articu-
lated in the attached EEOC charges into Rowlands’ complaint,
but erred in finding that they failed to state a failure to accom-
modate claim. As Rowlands points out, when a person files a
charge with the EEOC claiming that they “tried to engage in
the interactive process and tried to get reasonable accommo-
dations,” it logically follows that those efforts were not fruit-
ful. Otherwise there would be no need to include those details
in the charge.
UPS and the district court relied primarily on Hooper v.
Proctor Health Care Inc., 804 F.3d 846 (7th Cir. 2015), to support
the notion that Rowlands failed to state a failure to accommo-
date claim. Hooper is easily distinguished. In Hooper the plain-
tiff failed to assert a failure to accommodate claim in his com-
plaint and, critically, failed to attach his EEOC charge to his
complaint. Instead, the plaintiff argued that, because his
“complaint alleged that he was a qualified individual with a
disability” it “therefore included a failure to accommodate
12 No. 17-3281
claim because the definition of a qualified individual is one
who, ‘with or without reasonable accommodation, can perform
the essential functions of the employment position that such
individual holds.’” Id. at 851 (emphasis supplied) (quoting 42
U.S.C. § 12111(8)). Rowlands makes no such argument, and
need not because her 2013 EEOC charge included a failure to
accommodate claim and was attached to her complaint. As
UPS acknowledges, in Hooper there was no mention of the
EEOC charge until the plaintiff attached it to his response
brief in opposition to summary judgment. Accordingly,
Hooper does not control.
UPS also argues on appeal that Rowlands “may not use
her opposition to summary judgment as a backdoor tech-
nique to amend her complaint,” citing Anderson v. Donahoe,
699 F.3d 989 (7th Cir. 2012). Anderson is equally inapt. In An-
derson the plaintiff asserted a failure to accommodate claim in
a complaint that he filed pro se, but failed to assert such a claim
in his counseled second amended complaint. Id. at 997. The
plaintiff then attempted to assert a failure to accommodate
claim in his opposition to summary judgment. Id. This court
recognized that the second amended complaint was the oper-
ative complaint and consequently held that the claim was
waived because “a plaintiff may not amend his complaint
through arguments in his brief in opposition to a motion for
summary judgment.” Id. (internal quotations omitted). This
uncontroversial observation does nothing to further UPS’ po-
sition because Rowlands attached her EEOC charge, which ar-
ticulated a failure to accommodate claim, to her complaint.
Under Federal Rule of Civil Procedure 8(a) Rowlands was
required to include in her complaint “a short and plain state-
ment of [her] claim[s]” to give UPS fair notice of each of her
No. 17-3281 13
claims “and the grounds upon which [they] rest[].” Bell Atlan-
tic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955 (2007)
(internal quotations omitted). Rowlands was not obligated,
however, to plead “facts that bear on the statutory elements
of a claim.” Chapman v. Yellow Cab Coop., 875 F.3d 846, 848 (7th
Cir. 2017). Instead, the Federal Rules of Civil Procedure “re-
quire[] plaintiffs to plead claims rather than facts correspond-
ing to the elements of a legal theory.” Id. (emphasis supplied).
It is therefore “manifestly inappropriate for a district court to
demand that complaints contain all legal elements (or factors)
plus facts corresponding to each.” Id. “It is enough to plead a
plausible claim, after which ‘a plaintiff receives the benefit of
imagination, so long as the hypotheses are consistent with the
complaint.’” Id. (quoting Twombly, 550 U.S. at 563).
As the district court recognized, Rowlands’ 2013 EEOC
charge was incorporated into her complaint, and was there-
fore a part of it for all purposes. Fed. R. Civ. P. 10(c). In that
charge Rowlands alleged that she “tried to engage in the in-
teractive process and tried to get reasonable accommoda-
tions” and that she “was retaliated against for … trying to en-
gage in the interactive process/making requests for reasona-
ble accommodations.” Those allegations were sufficient to put
UPS on notice that Rowlands was asserting a failure to accom-
modate claim. From there, Rowlands “should have receive[d]
the benefit of imagination” rather than being expected to
plead each element of an ADA retaliation claim, namely that
her request for accommodations was denied. Id. This is espe-
cially so where, as here, the case proceeded to the summary
judgment stage “with a full description of the facts,” support-
ing Rowlands’ contention that her requests for accommoda-
tions were denied. Id.
14 No. 17-3281
Because the facts alleged in Rowlands’ 2013 EEOC charge
were both adequate to state a failure to accommodate claim
and incorporated into her complaint, Rowlands did not waive
the claim.
As for the first prong of Rowlands’ failure to accommo-
date claim, the district court erroneously held that she was not
disabled because she had been cleared to work without re-
strictions. Under the ADA, a disability is “a physical or men-
tal impairment that substantially limits one or more major life
activities.” 42 U.S.C. § 12102(1). “[M]ajor life activities in-
clude, but are not limited to, caring for oneself, performing
manual tasks, seeing, hearing, eating, sleeping, walking,
standing, lifting, bending, speaking, breathing, learning,
reading, concentrating, thinking, communicating, and work-
ing.” 42 U.S.C. § 12102(2). A person with such an impairment
has a disability “even if the impairment is ‘transitory and mi-
nor.’” Gogos v. AMS Mech. Sys., Inc., 737 F.3d 1170, 1172 (7th
Cir. 2013) (quoting 42 U.S.C. 12101(3)(B)).
According to Rowlands, her knee injuries substantially in-
terfered with her ability to walk, stand, squat and kneel. These
claims are sufficient to support Rowlands’ claim that she has
a disability. Although UPS would have been entitled to re-
quest a doctor’s note verifying Rowlands’ condition as part of
the interactive process, it does not follow that she did not have
a disability because her doctor had cleared her to return to
work without restrictions. Additionally, Rowlands informing
Liskey of her limitations and needed accommodations was
sufficient to put UPS on notice that it was expected to engage
in the interactive process. See E.E.O.C. v. Sears, Roebuck & Co.,
417 F.3d 789, 804 (7th Cir. 2005) (“Where notice is ambiguous
as to the precise nature of the disability or desired
No. 17-3281 15
accommodation, but it is sufficient to notify the employer that
the employee may have a disability that requires accommo-
dation, the employer must ask for clarification.”). UPS was
not entitled, under such circumstances, to simply ignore Row-
lands’ requests, regardless of whether she had been cleared to
work without restrictions. See id. (“[A]n employer cannot
shield itself from liability by choosing not to follow up on an
employee's requests for assistance, or by intentionally re-
maining in the dark.”).
Because Rowlands did not waive her failure to accommo-
date claim and questions of material fact remain as to whether
Rowlands had a disability and to what extent she required ac-
commodations, the district court erred in granting summary
judgment to UPS on this claim.
B. Retaliation
To establish a retaliation claim, Rowlands “must demon-
strate that she engaged in protected activity, that she suffered
an adverse action, and that there is a causal connection be-
tween the two.”Rodrigo, 879 F.3d at 243. As mentioned above,
a plaintiff may pursue a retaliation claim “regardless of
whether the initial claims of discrimination are meritless.”
Dickerson, 657 F.3d at 601.
The district court analyzed, and rejected, Rowlands’ retal-
iation claim under the burden-shifting, or “indirect” method
established in McDonnell Douglas Corp. v. Green, 411 U.S. 792,
93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). 3 Although we have
3 Under the burden-shifting framework a plaintiff must first establish
that: (1) she “engaged in statutorily protected activity”; (2) she “was per-
forming [her] job satisfactorily”; and (3) she “was singled out for an ad-
verse employment action that similarly situated employees who did not
16 No. 17-3281
acknowledged that the indirect method can be a “an efficient
way to organize, present, and assess evidence in discrimina-
tion cases,” Advocate Health, 892 F.3d at 894, we have also
warned that efforts to shoehorn the evidence into either the
direct or indirect method of proof can “detract[] attention
from the sole question that matters: Whether a reasonable ju-
ror could conclude that [the plaintiff] would have kept his job
if he [did not have the proscribed factor], and everything else
had remained the same. Ortiz v. Werner Enterprises, Inc., 834
F.3d 760, 764 (7th Cir. 2016). Accordingly, the legal standard
under which we must analyze Rowlands’ claim “is simply
whether the evidence would permit a reasonable factfinder to
conclude that [Rowlands’ requests for accommodations]
caused the discharge.” Id. at 765. We find that it would.
To show that retaliation was the “but for” reason for her
termination, Rowlands can use either direct or circumstantial
evidence. Monroe v. Indiana Dep't of Transportation, 871 F.3d
495, 503 (7th Cir. 2017). An admission that UPS fired Row-
lands in retaliation for her requests for accommodations
would be direct evidence. Id. Such evidence is, of course, rare.
More often, plaintiffs present circumstantial evidence of dis-
crimination. Such evidence includes: “(1) suspicious timing;
(2) ambiguous statements or behavior towards other employ-
ees in the protected group; (3) evidence, statistical or other-
wise, that similarly situated employees outside of the
engage in protected activity did not suffer.” Preddie v. Bartholomew Consol.
Sch. Corp., 799 F.3d 806, 814 (7th Cir. 2015) (internal quotations omitted).
Once a plaintiff establishes a prima facie case, the burden shifts to the em-
ployer to articulate a non-discriminatory reason for the adverse action. Id.
If able to do so, the burden shifts again to the employee to show that the
reason given was pretext. Id.
No. 17-3281 17
protected group systematically receive[d] better treatment;
and (4) evidence that the employer offered a pretextual reason
for an adverse employment action.” Id. at 504 (citing Bunn v.
Khoury Enter., Inc., 753 F.3d 676, 681 (7th Cir. 2014)). This is
often referred to as the “direct” method of establishing em-
ployment discrimination.
Rowlands relies on the first and fourth categories of cir-
cumstantial evidence to support her retaliation claim, arguing
that she was fired shortly after she returned to work from
knee surgery, that she constantly requested accommodations
that were denied up until her discharge, and that UPS’ reason
for firing her was pretextual. UPS counters that Rowlands
was fired for a legitimate reason: she threatened Gropengieser
with a taser, violating the Policy. According to UPS that leaves
Rowlands with only suspicious timing, which we have held
is insufficient, by itself, to create a jury issue on the inference
of retaliation. See Amrhein v. Health Care Serv. Corp., 546 F.3d
854 (7th Cir. 2008). We have also found, however, “evidence
of causation sufficient to withstand summary judgment
where adverse actions against an employee commenced one
month after she had filed complaints of race and sex discrim-
ination, where the employee had also presented evidence of
pretext.”Donahoe, 699 F.3d at 996. Because this latter scenario
more closely resembles Rowlands’ claim, the district court
erred in granting summary judgment for UPS.
As discussed above, there is substantial circumstantial ev-
idence, aside from suspicious timing, that would allow a rea-
sonable juror to infer that UPS’ reason for firing Rowlands
was pretextual: (1) her employee ID was never reinstated; (2)
she was “put under a microscope” and subjected to new rules
that applied only to her; (3) she attempted to discuss her
18 No. 17-3281
limitations with Liskey, but was rebuffed repeatedly; (4) Lis-
key complained that she “has been a constant pain in my
butt” and “that management has been on me continually
about this”; (5) she alone was prohibited from moving her car
closer to the building during her breaks; (6) she was denied
access to the first-floor bathroom; and (7) Gropengieser vio-
lated the Policy by threatening Harms in front of Liskey, and
suffered no adverse action as a result. Additionally, Rowlands
has provided evidence that could allow a reasonable juror to
infer that tasers were not explicitly prohibited under the pol-
icy, and that Gropengieser’s claim that she threatened him
was not credible.
We, of course, “cannot second-guess [UPS’] employment
decisions to the extent that they were innocently unwise or
unfair.”Miller v. Illinois Dep't of Transp., 643 F.3d 190, 200 (7th
Cir. 2011). “But [Rowlands] has presented sufficient evidence
from which a finder of fact could genuinely call into question
[UPS’] honesty.” Id. A reasonable jury could also find that
Rowlands’ statement to Gropengieser “was not a ‘threat’ at
all, or that even if [UPS] properly construed it as such, its de-
cision to terminate [Rowlands] was a disingenuous overreac-
tion to justify dismissal of an annoying employee who as-
serted h[er] rights under the ADA.” Id. “The combination of
the ambiguity of the asserted threat,” the ambiguity in the
Policy, Liskey’s comment about Rowlands, the ways she
claims to have been singled out, “and the timing [of her ter-
mination] provided sufficient evidence to permit a reasonable
trier of fact to infer pretext and retaliatory intent.” Id. at 201.
No. 17-3281 19
“In the end a jury might not credit [Rowlands’] evidence
and could accept [UPS’] explanations. But given the conflict
on material issues, a trial is necessary.” Ortiz, 834 F.3d at 766.
REVERSED and REMANDED.