Mobley, Catherine A. v. Allstate Insur Co ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-3834
CATHERINE A. MOBLEY,
Plaintiff-Appellant,
v.
ALLSTATE INSURANCE COMPANY
a/k/a ALLSTATE PROPERTY AND
CASUALTY INSURANCE COMPANY,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 1:04-cv-1430-SEB-VSS—Sarah Evans Barker, Judge.
____________
ARGUED NOVEMBER 28, 2007—DECIDED JULY 8, 2008
____________
Before EASTERBROOK, Chief Judge, and FLAUM and WOOD,
Circuit Judges.
FLAUM, Circuit Judge. Plaintiff Catherine A. Mobley
worked for Allstate Insurance (“Allstate”) for sixteen
years before being laid off with 31 other employees in
October 2003 as part of a reduction in force (“RIF”). In
July 2001, Mobley had begun having problems concen-
trating and staying awake at work, due to what was
ultimately diagnosed as essential tremor and nocturnal
myoclonus. From fall 2002 until April 2003, Mobley
2 No. 06-3834
wrangled with her supervisors over workplace accom-
modations for her conditions. In May 2003, Allstate per-
mitted Mobley to regularly work in a private room rather
than a cubicle. Although Mobley’s earlier, temporary
placement in this private room had improved her
work performance, Mobley’s performance level never
reached the “meets” level after May 2003, causing her
name to be included on the RIF in October of that year.
Mobley subsequently brought suit against Allstate under
the Americans with Disabilities Act (“ADA”), bringing
claims for failure to accommodate her disability, dis-
criminatory termination, and unlawful retaliation. The
district court granted summary judgment in favor of
Allstate on all claims, which Mobley now appeals. For
the reasons discussed below, we affirm.
I. Background
Mobley began working for Allstate Insurance in 1987
and during the period of time relevant to this suit,
July 2001 through October 2003, Mobley held the position
of Staff Claims Service Adjuster. In this role, Mobley’s
immediate supervisor was Nancy Brechbuhl. Brechbuhl, in
turn, was directly supervised by Alexandra Balatsoukas,
the manager of the Indianapolis Allstate facility where
Mobley worked.
Prior to her annual review in 2002, all of Mobley’s
performance evaluations had been positive. Allstate’s
review system for Claims Adjusters centered upon
numeric goals regarding the quality and quantity of
their work. If a Claims Adjuster is meeting these goals, they
are rated as “Meets” or “Exceeds.” If they fall below a
“meets” level, they are then placed on a performance
No. 06-3834 3
improvement plan and given “Requires Improvement”
(“RI”) status. Once on RI status, an employee is then
reviewed at the 30, 60, and 90 day marks to determine if
they have improved to a “meets” level. If, after this time,
a Claims Adjuster has not reached a “meets” level, they
are then placed on “Job in Jeopardy” (“JIJ”) status. Typi-
cally, if a Claims Adjuster cannot improve to a “meets”
level after another 90 days, she is terminated. For
those Claims Adjusters taken off RI or JIJ status for reach-
ing a “meets” level, any fall under a “meets” level over
the next twelve months generally results in immediate JIJ
status.
From March 2001 to July 2001, Mobley was away from
work on an approved disability leave for depression.
During this leave, Mobley sought treatment after she
began to experience tremors and involuntary muscle
movements, and was diagnosed with essential tremor.
Upon returning to work in July 2001, Mobley experienced
difficulty with her concentration and focus, as well as
staying awake while at the office. At the same time,
Mobley was also assigned to work on approximately
100 uninsured and underinsured motorist (“UI/UIM”)
claims that, up to that time, had not been worked on
properly and were more complicated than those involving
insured motorists.
At her next annual performance evaluation, in
March 2002, Mobley was informed that she was “not
meeting the accountabilities of your position,” which
Mobley disputed. In July 2002, Mobley was then formally
placed on RI status. In response, Mobley explained that
her health condition was affecting her concentration and
memory, and that she was undergoing tests in order to
diagnose the problem. That same month, Mobley under-
4 No. 06-3834
went a sleep study, the results of which she passed along
to Brechbuhl.
In early fall 2002, Mobley asked Brechbuhl if she could
use the “huddle room,” which was a small conference
room, on an as needed basis to help with her concen-
tration and focus. Brechbuhl permitted Mobley to do so,
so long as she asked Brechbuhl for permission on each
occasion. That fall, Mobley also requested that Brechbuhl
let her work from home one or two days a week to help
her productivity, and allow her to work solely on bodily
injury (“BI”) evaluations in order to limit her focus and
increase her performance. Brechbuhl denied both of these
requests. Mobley points out, however, that Allstate permit-
ted one of her non-disabled co-workers to work from
home several afternoons a week so she could watch her
son’s baseball games, and later assigned another, lower
rated employee to work exclusively on the BI files.
On October 30, 2002, Mobley responded to her RI status
review, which reported that she had not returned to a
“meets” performance rating. In her response, Mobley
noted that she had been diagnosed with essential tremor,
myoclonus, and narcolepsy, and was attaching medical
documentation to that effect. She then noted that she
was on medication and wrote, “I have felt much better
the last two weeks. I believe that once I am able to work
through the backlog that has accumulated, I will return
to the Meets/Exceeds employee I have been for the last
15 years.” The attached medical records were then faxed
to Allstate’s human resources department on Novem-
ber 11, 2002.
Mobley then had a follow-up meeting with Balatsoukas
on November 18, 2002 regarding her RI status. In this
meeting, Mobley told Balatsoukas that using the huddle
No. 06-3834 5
room had been beneficial and that she thought it would
also be helpful if she could work at home one day a
week and focus on BI evaluations. Balatsoukas denied
these requests, allegedly telling Mobley that she would do
the same work as everyone else at the company, or she
would be terminated. A week or two later, however,
Brechbuhl informed Mobley that Balatsoukas had decided
to permit Mobley to use the huddle room again. According
to Mobley, Brechbuhl conveyed that Balatsoukas was
letting Mobley use the huddle room to prove that she
was not disabled and that this accommodation would
have no impact on her performance. Using the huddle
room, however, Mobley was able to bring her performance
level up to a “meets” status by the end of January 2003. As
a result, in early March, Balatsoukas and Brechbuhl had
a meeting with Mobley to confirm her improved status.
At this meeting, Mobley was told that because of her
improvement, she was being moved out of the huddle
room. Mobley was also informed that although she
would keep the UI/UIM files she already had, in the
future she would only be assigned BI claims.
Around the same time, Mobley also received further
medical information. In February 2003, Mobley received
a note from her physician requesting that Mobley be
provided with an alternate schedule, where she would
take Wednesdays off, but work ten hour days the other
four days of the work week, in order to provide her
with extra time to sleep. She passed this information
along to Allstate sometime in late February or early
March as part of FMLA paperwork for her being gone
from work from February 10 to 14.
On March 21, 2003, Mobley met with Balatsoukas
and Brechbuhl to discuss her requested change to her
6 No. 06-3834
schedule. Balatsoukas informed Mobley that this request
had been denied because her being out of the office on
Wednesdays would cause difficulties in covering her
phone calls. Balatsoukas did, however, suggest that
Mobley’s schedule be pushed back to 9:00 - 5:30, in order
to give her more time to sleep in the morning, although
Mobley expressed that this would not help given the
fact that she would probably have to come in early and
stay late anyway to complete her work.
Following this meeting, Mobley contacted Allstate’s
Resolution Tracking System sometime around March 25,
and was put in contact with Human Resources Division
Manager Sybil Brenner. Through this contact, Mobley
provided Allstate with additional information it re-
quested from her physician. Mobley’s physician indicated
on a form that Mobley suffered from lifelong medical
conditions, and in response to being asked “[w]hat
specific accommodations are needed,” her physician wrote:
— being in room by herself—helps her concentrate.
— working Monday & Tuesday for 10 hrs, have Wed.
off, work Thursday & Friday for 10 hrs.
Mobley, at least earlier in March, had viewed these pro-
posals as alternative accommodations.
Around this same time, despite Mobley’s being assigned
the easier BI files, without the use of the huddle room, her
performance rating again dipped below “meets” status,
and she was told she would be reviewed again in June. In
late April and early May, additional accommodations were
made for Mobley. On April 28, Brenner from human
resources conveyed to Balatsoukas in an email that it was
important to accommodate Mobley, and that accordingly,
she was to be permitted to use the huddle room again,
No. 06-3834 7
seeing as it had previously been successful in improving
her performance. Mobley began using the huddle room
again in the first week of May, and around the same time,
at least eighteen of Mobley’s files were transferred to
another employee in order to alleviate her workload.
Although Mobley’s schedule also continued to be pushed
back a half hour to give her time to sleep in, she com-
plained that Balatsoukas would not permit her to work
past 5:30 p.m., which prevented her from getting all her
needed work done.
By the summer, Mobley was still not performing at a
“meets” level, and in July, in the hopes of improving
her performance, she began taking work home with her.
By August, however, Mobley’s performance still had
not improved to a “meets” level, and on August 26,
2003 she was provided with notification that she had
been placed back on RI status, even though Allstate could
have placed her directly in JIJ status. The next month, in
September, Brechbuhl informed Mobley that she was
coming close to meeting Allstate’s expectations and
would likely be moved off RI status.
Mobley never reached “meets” status, however, and
instead, on October 23, 2003, was one of thirty-two em-
ployees terminated as part of Allstate’s RIF. As of early
2003, Balatsoukas knew that the RIF was a possibility,
and employees throughout the department, including
Mobley, were aware by mid-summer that such a reduc-
tion was likely. Brenner, in human resources, was initially
responsible for putting together the RIF package. The
criteria used for putting together the package were
stated as including those on RI status, business need, and
length of service, although service date was not ulti-
mately used. In September or October, Brenner pulled a
8 No. 06-3834
list of employees on RI status as of the end of August.
Although Mobley argues that there are discrepancies
between this list and those who were terminated and on
RI status, Mobley was included on this list and let go by
Allstate.
Mobley brought suit against Allstate on August 31,
2004, asserting claims under the ADA and the Age Dis-
crimination in Employment Act (“ADEA”). Allstate filed
a motion for summary judgment on January 31, 2006.
Mobley, in her response to Allstate’s motion for sum-
mary judgment, conceded her ADEA claim. The district
court then issued its order and judgment on September 22,
2006, granting summary judgment for Allstate with
respect to Mobley’s remaining claims of failure to accom-
modate, discriminatory termination, and unlawful re-
taliation under the ADA. Mobley now appeals these claims.
II. Discussion
A. Standard of Review
This Court reviews a district court’s grant of a motion
for summary judgment de novo. Jackson v. County of
Racine, 474 F.3d 493, 498 (7th Cir. 2007). In doing so, all
facts and reasonable inferences are construed in the light
most favorable to the nonmovant party, Mobley. Lawson
v. CSX Transp., Inc., 245 F.3d 916, 922 (7th Cir. 2001). A dis-
trict court’s grant of summary judgment is to be affirmed
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 en-
titled to judgment as a matter of law.” FED. R. CIV.
P. 56(c).
No. 06-3834 9
B. Failure to Accommodate
Mobley’s first claim is that Allstate failed to accom-
modate her disability. Under the ADA, a failure to
make reasonable accommodations for a known disa-
bility constitutes unlawful discrimination. 42 U.S.C.
§§ 12112(b)(5)(A), 12112(a). In order to prevail on this
claim, Mobley must show: “(1) she is a qualified individ-
ual with a disability; (2) the employer was aware of her
disability; and (3) the employer failed to reasonably
accommodate the disability.” EEOC v. Sears, Roebuck &
Co., 417 F.3d 789, 797 (7th Cir. 2005) (citing Hoffman v.
Caterpillar, Inc., 256 F.3d 568, 572 (7th Cir. 2001)). In con-
junction with this third element, the “ADA requires that
employer and employee engage in an interactive process
to determine a reasonable accommodation.” Id. (quoting
Baert v. Euclid Beverage, Ltd., 149 F.3d 626, 633 (7th
Cir. 1998)).
Turning to the first element of a failure to accommodate
claim, we find that Mobley is a “qualified individual
with a disability.” In order to satisfy this element, Mobley
must show that she is “an individual with a disability
who, with or without reasonable accommodation, can
perform the essential functions of the employment posi-
tion that [she] holds or desires.” 42 U.S.C. § 12111(8);
Darnell v. Thermafiber, Inc., 417 F.3d 657, 659-60 (7th Cir.
2005). This first element thus contains two parts—showing
that Mobley’s medical conditions rendered her disabled,
and that she was able to still perform at a “meets” level.
Allstate does not contest that Mobley had a disability
as of April 2003, when Allstate’s human resources de-
partment received further documentation from Mobley’s
physician. Allstate argues though, that once Mobley
was provided with an array of accommodations in late
10 No. 06-3834
April or early May 2003, she was still unable to reach
“meets” status, and thus failed to show that she could
perform one of the essential requirements of her position.
Allstate, however, in looking only at Mobley’s perform-
ance after April 2003, fails to recognize that for approxi-
mately two to three months, from January to early
March 2003, Mobley was able to perform at a “meets”
level when she was allowed to work in the huddle room.
Although arguably, at that time period, it was not known
that Mobley’s condition was permanent or long-term, as
is required to constitute a “disability,” Toyota Motor Mfg.,
Ky. v. Williams, 534 U.S. 184, 198 (2002) (“The impairment’s
impact must also be permanent or long-term.”), there is
no indication that Mobley’s underlying condition wors-
ened between January and April 2003, only that the
“chronic,” “indefinite” and “lifelong” nature of her con-
dition was not documented to Allstate when she achieved
“meets” status with this accommodation. Because the
underlying condition itself did not change, we find that
Mobley’s achievement of a “meets” status while using
the huddle room in early 2003 satisfies this first element.
The discussion above regarding Mobley’s documenta-
tion of her condition to Allstate is relevant in considering
the second factor, Allstate’s awareness of Mobley’s dis-
ability. According to Allstate, Mobley’s failure to accom-
modate claim should only pertain to Mobley’s work
environment after April 2003, since Allstate alleges that
as late as March 2003, when Mobley was reassigned to
her workstation from the huddle room, all parties were
under the understanding that Mobley’s medical condi-
tion and its impact on her work performance were tempo-
rary. Determining when Allstate became aware of Mobley’s
disability ties into the third factor, since the interactive
process is triggered upon the employee’s notification to
No. 06-3834 11
the employer of their condition. Sears, Roebuck & Co.,
417 F.3d at 803-04. It is not necessary for this Court in this
case, however, to determine whether the evidence is
sufficient to support a finding that the interactive process
was triggered prior to April 2003, since, as we will dis-
cuss, we find that Allstate did eventually reasonably
accommodate Mobley’s disability. Although it was an
admittedly laborious process for Mobley to obtain the
accommodation she finally received in late April or
early May 2003, the fact that Allstate may have failed to
engage in an interactive process prior to that time is by
itself insufficient to establish a failure to accommodate
claim when, in the end, Mobley was provided with a
reasonable accommodation. Rehling v. City of Chicago, 207
F.3d 1009, 1016 (7th Cir. 2000) (“we hold that a plaintiff
must allege that the employer’s failure to engage in an
interactive process resulted in a failure to identify an
appropriate accommodation for the qualified individual”);
Sieberns v. Wal-Mart Stores, 125 F.3d 1019, 1023 (7th Cir.
1997) (“The interactive process the ADA foresees is not
an end in itself; rather it is a means for determining
what reasonable accommodations are available to allow
a disabled individual to perform the essential job func-
tions of the position sought.”).
We find that in this case, Allstate did reasonably accom-
modate Mobley’s disability. The ADA includes a long, non-
exclusive list of what “reasonable accommodations” may
include, 42 U.S.C. § 12111(9)1, although an employer is
1
This includes:
(A) making existing facilities used by employees readily
accessible to and usable by individuals with disabilities;
and
(continued...)
12 No. 06-3834
not required to make accommodations that “would im-
pose an undue hardship” upon the employer. 42 U.S.C.
§ 12112(b)(5)(A). Mobley’s argument focuses on what
accommodations were not made by Allstate despite her
requests, contending that other individuals were pro-
vided with these alternative arrangements and that pro-
viding such accommodations to Mobley would not con-
stitute an “undue hardship.” However, even if the ac-
commodations Mobley requested—working from home;
exclusively working on BI files; and switching to four,
ten hour days with Wednesdays off—did not impose an
“undue hardship” on Allstate, that did not obligate
Allstate to grant these accommodations. Rather, “[a]n
employer is not obligated to provide an employee the
accommodation [s]he requests or prefers, the employer
need only provide some reasonable accommodation.” Gile
v. United Airlines, 95 F.3d 492, 499 (7th Cir. 1996); Sears,
Roebuck & Co., 417 F.3d at 802. Therefore, Allstate was not
required to provide Mobley with all her requested accom-
modations, but did, at a minimum, have “to provide an
accommodation that effectively accommodate[d]
[Mobley’s] limitations.” Sears, Roebuck & Co., 417 F.3d
at 802.
1
(...continued)
(B) job restructuring, part-time or modified work sched-
ules, reassignment to a vacant position, acquisition or
modification of equipment or devices, appropriate
adjustment or modifications of examinations, training
materials or policies, the provision of qualified readers
or interpreters, and other similar accommodations for
individuals with disabilities.
42 U.S.C. § 12111(9).
No. 06-3834 13
Allstate met its obligation in this case to effectively
accommodate Mobley’s limitations in the workplace.
From July 2001, when Mobley’s condition began, to Octo-
ber 2003, when she was terminated, the one accommoda-
tion that had successfully allowed Mobley to bring her
performance level to a “meets” status was her use of the
huddle room from late November or early December 2002
until early March 2003. The use of the huddle room was
also one of two alternative accommodations specifically
recommended by Mobley’s physician. Although prior to
April 2003, Mobley’s use of the huddle room had been
sporadic, from early May up until the time she was termi-
nated, Mobley was permitted to use the huddle room on a
regular basis. Therefore, despite the other accommodation
requests Mobley had made, Allstate provided Mobley with
the only accommodation proven to “effectively accommo-
date[ ] [her] limitations.” In addition to using the huddle
room, Mobley also, from May 2003 on, was provided with
other accommodations, including permission to shift her
schedule back a half hour; reassignment of at least 18 files
to another worker; and being assigned only BI files.
Although Mobley was ultimately permitted to use the
huddle room, she claims that when this occurred, her
accommodations were still not reasonable, since
Balatsoukas’s efforts to prevent her from working at
the office past 5:30 p.m. prevented her from getting
her work done and meeting Allstate’s performance ex-
pectations. This argument, however, is unavailing. Even
accepting that Mobley’s forty hours at the office were
insufficient for her to complete all her work, Balatsoukas’s
reluctance to allow her to work longer hours at the
office does not make Allstate’s accommodations unrea-
sonable. There is no evidence in the record that Mobley
was in any way prevented from taking her work home
14 No. 06-3834
with her if necessary; indeed, the fact that she began doing
so in July 2003 shows that this was not the case. Further-
more, there is no evidence that it was more difficult for
Mobley to complete her work when at home. To the
contrary, Mobley specifically requested that she be per-
mitted to work from home and testified to the fact that
she was able to work productively in that environment.
As an additional matter, we note that Mobley’s claim
that Allstate failed to reasonably accommodate her disa-
bility also fails because she has failed to meet her burden
of showing that her other requests did in fact constitute
reasonable accommodations. Mays v. Principi, 301 F.3d
866, 871 (7th Cir. 2002) (“the burden of showing that a
reasonable accommodation existed remains on the em-
ployee”). Again, the only accommodation that has been
proven to effectively remedy Mobley’s limitations is the
use of the huddle room. With respect to Mobley’s request
to work four, ten hour days and take Wednesdays off,
Mobley offered no evidence that this would effectively
accommodate her disability, and she in fact testified that
this proposal was viewed as an alternative to her being
allowed to use the huddle room. Additionally, with re-
spect to Mobley’s request in fall 2002 to be assigned BI
files, by March 2003 this accommodation had been pro-
vided, but Mobley was still unable to achieve “meets”
status. The final request made by Mobley that was not
granted by Allstate was that she be permitted to work from
home one or two days each week. Here too, Mobley has
failed to show that this in fact would have effectively
accommodated her disability, and additionally, we note
that as a general matter, working at home is not a rea-
sonable accommodation. Rauen v. United States Tobacco
Mfg., 319 F.3d 891, 896 (7th Cir. 2003) (“a home office is
No. 06-3834 15
rarely a reasonable accommodation”) (citing Vande Zande
v. Wis. Dep’t of Admin., 44 F.3d 538, 544-45 (7th Cir. 1995)).
Accordingly, despite wrangling between Mobley and
Balatsoukas regarding use of the huddle room prior to
Mobley’s conversation with human resources and filing
of additional medical documentation in March and
April 2003, Allstate ultimately reasonably accommo-
dated Mobley’s disability by permitting her to use the
huddle room, the one accommodation that had proven
to be effective in allowing Mobley to achieve “meets”
status. The fact that after April 2003, Mobley was unable
to replicate her earlier rise to “meets” status does not
render Allstate liable when the accommodation provided
had proven effective in the past and Mobley failed to
raise any concern after April 2003 that additional accom-
modations were needed.
C. Discriminatory Termination
Mobley’s next claim is that Allstate acted discriminatorily
when it terminated her in October 2003 as part of its RIF.
Mobley attempts to prove this claim under the indirect,
burden-shifting method of proof established in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973), arguing that
discrepancies in the RIF package put together by Brenner
show that discriminatory intent motivated Allstate’s
decision to terminate Mobley. This claim fails, however,
because Mobley is unable to meet one of the elements
of the prima facie case.
In order to establish a prima facie case of discrimination
under the indirect method of proof, Mobley must show:
“(1) [s]he is disabled within the meaning of the ADA;
(2) [s]he was meeting h[er] employer’s legitimate em-
16 No. 06-3834
ployment expectations; (3) [s]he suffered an adverse
employment action; and (4) similarly situated employees
received more favorable treatment.” Rooney v. Koch Air,
410 F.3d 376, 380-81 (7th Cir. 2005). Mobley argues at
length regarding discrepancies in the RIF package that
allegedly reveal that other employees received favorable
treatment, but has failed to offer any evidence with re-
spect to the second element—that she was meeting
Allstate’s employment expectations when she was termi-
nated. See Burks v. Wisconsin Dept. Of Transp., 464 F.3d
744, 753 (7th Cir. 2006) (in race discrimination case in-
volving the plaintiff’s termination, finding that, “[a]lthough
[the plaintiff] may have been performing adequately at
the time of her positive evaluation, the critical inquiry
is her ‘performance at the time of [her termination]’ ”)
(quoting Moser v. Indiana Dep’t of Corr., 406 F.3d 895,
901 (7th Cir. 2005)) (emphasis in original); see also Squibb
v. Mem. Med. Ctr., 497 F.3d 775, 788 (7th Cir. 2007) ( in ADA
retaliation claim under the indirect method, stating “we
must examine [the plaintiff’s] performance at the time of
the challenged adverse actions”); see also Timmons v. General
Motors Corp., 469 F.3d 1122, 1127-28 (7th Cir. 2006) (same,
in ADA disparate treatment claim under the indirect
method). It is undisputed that performing at a “meets”
level is a requirement for Mobley’s position, and although
Mobley was told in September that she was close to
achieving “meets” status, from April 2003 until her ter-
mination, Mobley never in fact raised her performance
to a “meets” level. As a result, particularly given that
Mobley acknowledges that her performance had slipped
during that time and does not challenge Allstate’s method-
ology for finding that she was performing below a “meets”
level, Mobley cannot establish her prima facie case, and
thus her claim fails.
No. 06-3834 17
D. Retaliation
Mobley’s final claim is that Allstate unlawfully retali-
ated against her by removing her from the huddle room
in early March 2003 in response to her requests for accom-
modations in fall 2002, and also by placing her on RI status
in August 2003 in reaction to her call to Allstate’s com-
plaint resolution line in March 2003. In order to establish
a prima facie case of retaliation, Mobley must show
evidence of: “(1) a statutorily protected activity; (2) an
adverse action; and (3) a causal connection between the
two.” Squibb, 497 F.3d at 786 (quoting Burks, 464 F.3d at
758). Even if for each of these allegedly retaliatory acts
the first two elements of the prima facie case have been
met, Mobley fails in both circumstances to establish any
causal connection between her protected activity and the
adverse action. In both instances, the only evidence
Mobley offers regarding causation is temporal proximity,
noting that only a matter of months existed between
her initial request for accommodations and removal
from the huddle room, as is similarly the case for her
complaint to Allstate’s help line and subsequent place-
ment on RI status. Evidence of temporal proximity, how-
ever, standing on its own, is insufficient to establish a
causal connection for a claim of retaliation. Burks, 464
F.3d at 759 (“[Plaintiff] presents no evidence of a re-
taliatory motive other than the timing of her termination.
Therefore, she has not met her burden under the direct
method of proof.”); Sauzek v. Exxon Coal USA, Inc., 202
F.3d 913, 918 (7th Cir. 2000) (“Speculation based on suspi-
cious timing alone . . . does not support a reasonable
inference of retaliation.”). Although there may be an
exception to this general rule when the adverse action
occurs “on the heels of protected activity,” see McClendon v.
18 No. 06-3834
Indiana Sugars, 108 F.3d 789, 796 (7th Cir. 1997) (two
to three day period separating protected activity and
adverse action) (quoting Dey v. Colt Constr. & Dev. Co., 28
F.3d 1446, 1458 (7th Cir. 1994) (four weeks separating
the protected activity and adverse action)), such a cir-
cumstance would be limited to matters occurring within
days, or at most, weeks of each other. This can hardly be
said to be the case here, where in both circumstances,
months separated the alleged protected activity and
adverse action. As a result, in the absence of any other
evidence pointing towards causation, Mobley’s retalia-
tion claim also fails.
III. Conclusion
For the foregoing reasons, we AFFIRM the district court’s
grant of summary judgment in Defendant’s favor.
WOOD, Circuit Judge, concurring in part and dissenting
in part. Summary judgment is appropriate, as everyone
knows, only if there are no disputed issues of material
fact and the moving party is entitled to judgment as a
matter of law. Applying that well-worn standard, the
majority has concluded that Catherine Mobley has failed
to show that a trial is needed to resolve her case. I agree
with the majority that Mobley’s presentation has indeed
fallen short with respect to her retaliation claim. As I
No. 06-3834 19
read this record, however, there are genuinely disputed
material facts relating to her claims under the Americans
with Disabilities Act (ADA), 42 U.S.C. §§ 12101 et seq.,
for failure to accommodate and wrongful termination.
I would therefore reverse and remand for further pro-
ceedings on the latter two theories.
I
I begin with Mobley’s failure-to-accommodate claim,
which rests on 42 U.S.C. § 12112(b)(5)(A). This part of the
case hinges on the question whether Allstate accommo-
dated Mobley in a timely and adequate fashion. My
colleagues conclude that any reasonable trier of fact
would have to conclude that it did, based on the crucial
conclusion that Allstate “eventually reasonably accom-
modate[d] Mobley’s disability.” Op. at 11 (emphasis
added). In so doing, the majority accepts as undisputed
the proposition that Allstate learned of Mobley’s dis-
ability only in mid-April 2003. In my view, however,
the facts on which the majority’s conclusion rests are
fairly in dispute. Viewed in the light most favorable to
Mobley, Allstate’s failure to accommodate her more
promptly both violated the ADA provision defining
the term “discriminate” to include failure to accommo-
date and laid the groundwork for the problems that led
to her eventual termination.
An exclusive focus on Mobley’s work environment after
April 2003 misses crucial parts of the story. Mobley
first requested accommodation in the fall of 2002. Allstate
acknowledges this (as it must), but it claims that everyone
thought that she was seeking help only for a temporary
disability. But a trier of fact could reject Allstate’s asser-
20 No. 06-3834
tion that all the parties were under the impression that
Mobley’s disability was temporary until late March 2003.
In fact, substantial record evidence supports Mobley’s
account, under which she made no such representation.
Allstate’s sole citations to the record in support of its
position refer us only to the district court’s opinion and to
Allstate’s own brief below in support of its summary
judgment motion, without identifying any specific evi-
dence in the record to support this assertion. Appellee
Br. at 4 (citing R. 85 at 5, 15-16; R. 46 at 6). When one
turns to the district court’s opinion for more detail, it
turns out that the cited pages are also devoid of any
references to evidentiary materials. When we consult the
record itself, we find that this “fact” is far from undisputed.
Mobley has at all times contested the idea that she viewed
her disabling conditions—essential tremor and nocturnal
myoclonus—as temporary. Indeed, as I now review in
some detail, she has pointed to substantial evidence in the
record indicating that she had alerted Allstate long before
April 2003 that “the nature of her condition” was
“chronic,” “indefinite,” and “lifelong.”
In July 2002, months before making her first request
for an accommodation (which happened in the fall of
2002) and nearly a year before she finally was accommo-
dated, Mobley wrote in the comments section of an em-
ployee evaluation that she had “been unable to keep up
due to health problems affecting my ability to concentrate,
remember things, and mentally organize my thoughts so
I make good decisions about how I work. A diagnosis
has not been made, but I am under the care of a doctor and
tests are being done. I am doing my best to hang on.” App.
155. A month later, Mobley wrote, “I continue to
struggle with a neurological problem which has now
No. 06-3834 21
been diagnosed, but for which, so far, the medication
has provided no relief. I am having consistent followup
with my neurologist in an effort to normalize my ability
to concentrate and think logically.” App. 157. Nothing in
these comments suggests that Mobley believed that her
condition was “temporary.” If anything, she was describing
a problem that was as yet unsolved, and was per-
haps unsolvable, for which she was receiving ongoing
care from a medical specialist.
The following month, on September 24, 2002, Mobley
wrote that “[m]edications the doctor has changed to have
made a great change in my ability to concentrate and
think logically. However, because of the backlog of
work, I’m behind and trying to catch up. I’m doing
my best.” App. 161. Allstate reads into this comment a
concession from Mobley that her ailment was temporary.
In my view, that is too much of a stretch, particularly
bearing in mind the standard of review on summary
judgment. A comment that her physician finally had
found a medication that was producing some positive
effects is not the same as an admission that her disability
was “temporary.” A condition that requires daily med-
ication and ongoing treatment from a neurologist is
better described as “chronic.” Nothing in the quoted
statement comes close to saying that Mobley thought
that her condition was likely to dissipate in the near
future. A trier of fact could draw the opposite conclusion.
The latter inference would find support in Mobley’s later
comments in October 2002, when she gave Allstate a
statement from her neurologist, “as well as the records of
[her] treatment for Essential Tremor, Myoclonus, and
Narcolepsy.” App. 164. This is evidence of continued
treatment for ongoing, diagnosed conditions, not an
indication that she was on the path to full recovery.
22 No. 06-3834
Though Mobley again wrote that “medication appears to be
improving” her condition, once again she did not claim or
suggest that her problems were temporary. If believed by
a trier of fact, these statements show that Allstate knew of
Mobley’s problems, and their ongoing nature, as early as
September or October of 2002. They are inconsistent with
Allstate’s claim that Mobley “first confirmed” her diagno-
ses of essential tremor and myoclonus on November 18,
2002, Appellee Br. at 4, and that it first learned that Mobley
had been diagnosed “with an other-than-temporary
medical condition” in April 2003, id. at 16.
Further support for Mobley’s position can be found in a
report dated February 28, 2003, from Mobley’s neurologist,
Dr. Ghooray. Dr. Ghooray wrote that Mobley has
“CHRONIC CONDITIONS REQUIRING MULTIPLE
TREATMENTS”; he further noted that the condition began
“6/2002” and that its probable duration was “indefinite.”
App. 498.
Beyond this evidence, the record contains statements
from Allstate itself that are inconsistent with its claim that
it thought that Mobley’s disability was temporary up
until April 2003. When defending in this court its deci-
sions to deny Mobley’s requests to work only on bodily
injury (“BI”) files or to work from home, Allstate claims
that the employees Mobley offers as comparators were not
“similarly situated” to her, because they requested accom-
modations for an “occasional, seasonal, and part-time”
interim, or on a “purely temporary” basis, whereas
“Mobley’s request was for an ongoing” accommodation.
Appellee Br. at 11-12. This is tantamount to an admission
that its reason for denying Mobley certain accommoda-
tions—the same accommodations that it concedes it gave to
other employees—was that the other workers needed only
No. 06-3834 23
temporary accommodations, whereas it understood
Mobley to require ongoing accommodations.
It is telling that the special arrangements that Allstate
admits that it offered to other employees had nothing to
do with disabilities protected under the ADA. For ex-
ample, Melanie Thurston occasionally was permitted to
work from home during baseball season, so that she could
attend her son’s afternoon games; Nancy Muegge tempo-
rarily was allowed to work only on BI files “to catch up a
backlog of those files.” Allstate’s own description of
testimony from Office Manager Alex Balatsoukas, who
supervised Nancy Brechbuhl (Mobley’s direct supervisor),
states that Balatsoukas made it “clear that permission [for
Thurston] to work at home was sometimes allowed on an
occasional basis, as compared to Mobley’s request for a [sic]
ongoing work-at-home arrangement.” Balatsoukas
also said that Muegge’s “assignment” to BI-only files
was “purely temporary” and thus unlike what Mobley
was seeking, which was “an ongoing exemption.” Id.Viewing the record favorably to Mobley, therefore,
Allstate’s own admissions show that it realized that
Mobley’s repeated requests for accommodation, which
began in the fall of 2002, were not for a temporary con-
dition. It believed that she was seeking ongoing, long-
term adjustments.
Taking this evidence into account, I would find that
Mobley can show that Allstate was aware of her ongoing,
disabling condition at least by November 2002, and cer-
tainly no later than February 2003, when her neurologist’s
report stated that Mobley suffered from “CHRONIC
CONDITIONS” of “indefinite” duration. Indeed, Mobley
has shown that Allstate was failing to accommodate her
for a significant period of time, between approximately
24 No. 06-3834
November 2002 and late April to early May 2003,
when everyone agrees that Allstate finally acted. For
this, we must examine Allstate’s response to Mobley’s
requests to work in the “huddle room” (a measure that
she believed would improve her concentration, and thus
her productivity).
At a meeting Mobley had on November 18, 2002, with
Balatsoukas, the two discussed Allstate’s decision to
evaluate Mobley as someone who “Requires Improve-
ment.” Mobley told Balatsoukas (apparently not for the
first time) that she could achieve the needed improve-
ment if she would be permitted to use a particular quiet
room known as “the huddle room.” Balatsoukas denied
the request and remarked that Mobley had to perform
her work “the same way everybody else does the work,”
or else be terminated. App. 309. Nevertheless, a week or
two later, Brechbuhl informed Mobley that Balatsoukas had
changed her mind, and Mobley could use the huddle room
after all. As the majority notes, Mobley testified that
Brechbuhl told her at the time that the reason for
Balatsoukas’s change of heart was that she was con-
vinced Mobley was not disabled, and that Mobley’s
malingering would become clear if and when her as-
signment to the huddle room produced no improvement
in her performance. App. 310. Balatsoukas denies telling
Mobley that she had to do the work “the same way every-
body else does” it, but on summary judgment, we
must accept Mobley’s account. Moreover, Brechbuhl’s
testimony corroborates Mobley’s recollection. Brechbuhl
stated: “Yes, Alex wanted—felt like that it—you know,
Cathy needed to perform her job as all the other— . . . I
mean, that’s what Alex explained to me, . . . that it was
an equality issue.” App. 368-69. Brechbuhl could not
recall Balatsoukas’s precise words, but she stated that
No. 06-3834 25
“[i]t was just all related to equality issues.” App. 369.
Allstate’s only real response to this exchange is to claim
that Balatsoukas’s motivations are irrelevant to the ulti-
mate question whether the company reasonably accom-
modated Mobley.
While Balatsoukas’s motivations are not dispositive,
neither are they irrelevant. A jury could infer from the
fact that Balatsoukas agreed to allow Mobley to use the
huddle room just to show that she was incapable of
succeeding under any circumstance that this was not a
good-faith accommodation. Such an inference would be
reinforced by the fact that Balatsoukas revoked Mobley’s
permission to work in the huddle room immediately
after Mobley managed, within only six weeks of being
provided with that accommodation, to raise her perfor-
mance back up to “meets expectations” status. Indeed,
Allstate’s abrupt withdrawal of an accommodation that
everyone admits was both a reasonable request and a
successful arrangement is among the more troubling
aspects of this case. It is undisputed that Balatsoukas was
the final decision-maker with respect to accommodations,
including the use of the huddle room. Brechbuhl testified
that, had it been her decision, she would have allowed
Mobley to stay in the room, because “[h]er performance
had improved,” and there were “more pros” than cons
to Mobley remaining in the room. App. 369. Mobley’s
own comments on her evaluation for January 2003—the
month in which she re-attained the critical “meets ex-
pectations” status—spoke of how helpful the quiet environ-
ment was to her. App. 172-73, 176.
Balatsoukas claimed that Mobley’s success in restoring
her status to “meets expectations” meant that she no
longer needed to work in the huddle room. Balatsoukas
26 No. 06-3834
accordingly decided to prohibit her from doing so. App.
333. Allstate claims, and the majority accepts, that these
events do not raise a genuine issue of material fact as
to whether Allstate discharged its duty of reasonable
accommodation under the ADA, because Allstate later
offered the same accommodation in late April or early
May 2003. This does not, however, cure the earlier re-
fusal to accommodate before that time.
Lastly, I see no alternative grounds on which Allstate
might prevail at the summary judgment stage on Mobley’s
failure-to-accommodate claim. A trier of fact could con-
clude that the other measures that Allstate adopted were
not reasonable accommodations for her disabling con-
ditions. Allstate asserts that, in addition to allowing
Mobley to use the huddle room, it also, “from May 2003
on,” provided “other accommodations, including permis-
sion to shift her schedule back a half hour; reassignment
of at least 18 files to another worker; and being assigned
only BI files.” Op. at 13. The record shows, however,
that Allstate never allowed Mobley to work exclusively
on BI files. What it eventually did, after dragging its feet for
a while, was to begin shifting her work assignments from
the more complicated uninsured/underinsured motorist
(“UM/UIM”) files to the less complex BI files. Throughout
this time, Mobley retained the backlog of UM/UIM files
that she already had. See Appellee Br. at 6; Reply Br. at 5;
App. 335-39 (Balatsoukas deposition, stating that Mobley
was not allowed to work only on BI files); App. 371
(Brechbuhl deposition; same).
Second, when Allstate reassigned at least 14 of Mobley’s
files to other workers, the result was only to bring Mobley’s
case load down to a total of 184 files, one less than the
highest number of files assigned to any other representa-
No. 06-3834 27
tive. This means that before the transfer, Mobley had 198
files, or 13 more than any of her co-workers. I fail to see
how this redistribution of Mobley’s workload (by far the
heaviest among her cohorts) was a disability-based
“accommodation”; a fact-finder could equally well see it
as a simple transfer of files designed to distribute the
work more evenly.
Finally, Mobley disputed Allstate’s position that the
schedule change (permitting her to work from 9 to 5:30
rather than from 8:30 to 5) was an accommodation, for
she consistently said that it was of no help to her merely
to shift her schedule by 30 minutes. It is also difficult to
understand why Balatsoukas did not want Mobley to
stay past 5:30 p.m. on certain days so that she could
complete her work. Mobley was a salaried employee, not
an hourly worker, and so the amount of time she spent
in the office had no bearing on Allstate’s obligations to
her. Viewed separately, these circumstances likely
would not amount to ADA violations, but taken in the
context of the full record, they create a genuine issue of
fact on the question whether Allstate fulfilled its duty
of reasonable accommodation.
II
Allstate alleged, and the majority accepts, that Mobley
was terminated as part of a general reduction in force
(“RIF”) that Allstate was implementing, and thus that her
termination had nothing to do with her disability. Allstate
also asserts that in any event, Mobley was not meeting
its reasonable expectations. But, on the latter point, if she
was failing to meet its expectations only because of its
failure to provide reasonable accommodation, then she
28 No. 06-3834
is entitled to proceed. An employer cannot defeat a prima
facie case for one claim by committing a different viola-
tion. Finding this one element lacking, the majority does
not analyze the other aspects of Mobley’s prima facie
case, nor does it reach the burden-shifting analysis that
applies once the prima facie case is established. I would
find that Mobley has met her burden on each element
of her prima facie case, and that she has provided suf-
ficient evidence of pretext to survive summary judgment.
Moreover, she has also shown that a trier of fact could
find that the RIF had nothing to do with her termination,
and that it was instead ordered because of her disability.
The only other element of Mobley’s prima facie case
that Allstate challenged on appeal was whether similarly
situated employees received more favorable treatment
during the RIF. As I have already indicated in discussing
Mobley’s accommodation claim, there is enough evid-
ence on this point to defeat summary judgment. Mobley
presented evidence showing that Mike Hawkins, an
employee in the same unit as hers with the same job title,
same duties, and same supervisor (Balatsoukas), had
performance numbers consistently lower than Mobley’s
during 2002 and 2003, and was on “requires improvement”
status from June 2003 until September 18, 2003. This is
more than enough to render Hawkins “similarly situated”
to Mobley. See Warren v. Solo Cup Co., 516 F.3d 627, 630-31
(7th Cir. 2008). Hawkins was not terminated in the RIF,
even though Allstate claimed that it was terminating
all employees who were on “requires improvement” status
when human resources employee Sybil Brenner pulled
a report of employees’ status as of the end of August. There
is some dispute over when exactly this data was pulled.
Brenner testified that while she retrieved the data around
No. 06-3834 29
September or October 2003, the “info quest download”
was for “August, month end.” App. 380 (noting that the
report printout reflects that it retrieved data from “August,
month end”). Hawkins was on “requires improvement”
status until September 18, 2003, and so he should have been
on the RIF list.
These circumstances spill over into the issue of pretext.
As I have already noted, Allstate’s justification for
firing Mobley was that she simply fell into the category
of employees who were on “requires improvement” status
on the critical date for determining whom to let go as part
of the RIF. But because Hawkins would have been on the
same list, the fact that he escaped the RIF and Mobley did
not calls into question Allstate’s decision. And this is not
the only evidence Mobley has. There are other inconsis-
tences between Allstate’s claimed process for the RIF
and the actual process that it followed. Mobley points
out, for example, that not only were there people who
were not subject to the RIF despite being on “requires
improvement” status, but also there were people who
were subject to the RIF who were not on that status.
The majority opinion declines to discuss these blemishes,
having found that Mobley cannot make out her prima facie
case. And the district court, despite deeming these incon-
sistencies “peculiar” and inexplicable, held that they
presented “no serious challenge as pretext,” because
Mobley failed to show that the individuals who avoided
termination were “similarly situated” to Mobley or
“received treatment more favorable to Mobley.” But
that reasoning mixes up “pretext” analysis with the
evaluation of a prima facie case. The issue of pretext arises
only after an employee makes out her prima facie case. The
question at that point is not whether an employee has
30 No. 06-3834
shown that others similarly situated to herself were
treated more favorably, but rather whether the em-
ployer’s asserted reasons for terminating the employee
were in fact the actual reasons. Given the inconsistences
in the record that I have already discussed, I cannot
conclude as a matter of law that the RIF was conducted in
the neutral way that Allstate claims. Whether a jury
would ultimately find in Mobley’s favor is, of course,
not the question. On these facts, a reasonable jury could
do so.
III
For these reasons, I conclude that Mobley has presented
enough evidence to move forward on her failure-to-
accommodate and termination claims. Accordingly,
while I join the majority’s resolution of Mobley’s retalia-
tion claim, I respectfully dissent from its decision to
affirm summary judgment on the other two theories.
USCA-02-C-0072—7-8-08