Nancie Cloe v. City of Indianapolis ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-1713
N ANCIE J. C LOE,
Plaintiff-Appellant,
v.
C ITY OF INDIANAPOLIS,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 10-cv-1070—William T. Lawrence, Judge.
A RGUED O CTOBER 12, 2012—D ECIDED A PRIL 9, 2013
Before K ANNE, T INDER, and H AMILTON, Circuit Judges.
K ANNE , Circuit Judge. Nancie J. Cloe started working
for the City of Indianapolis in April 2007. In March 2008,
she was tragically diagnosed with multiple sclerosis
(“MS”), a chronic, incurable neurological disorder
that rendered her disabled and significantly impaired
her day-to-day life. On June 29, 2009, the City terminated
her, ostensibly for poor performance. Cloe sued under
the Americans with Disabilities Act (“ADA”), 42 U.S.C.
2 No. 12-1713
§ 12101 et seq., alleging that the City (1) discriminated
against her because of her disability; (2) failed to rea-
sonably accommodate her disability; and (3) retaliated
against her for requesting accommodations for her dis-
ability. The district court granted summary judgment
in favor of the City. For the reasons that follow, we
affirm the district court’s judgment on Cloe’s rea-
sonable accommodation claims, but reverse on her dis-
crimination and retaliation claims.
I. B ACKGROUND1
On May 1, 2007, the City of Indianapolis’s Department
of Metropolitan Development hired Nancie J. Cloe to
work as an Unsafe Buildings/Nuisance Abatement
Project Manager. Cloe’s initial supervisor was Jennifer
Greene, the Assistant Administrator of the Division of
Community Economic Development. Wendy Cooper,
a Senior Project Manager, became Cloe’s supervisor
shortly thereafter.
One of Cloe’s responsibilities was to arrange multi-
agency sweeps of abandoned, derelict, and unsafe prop-
erties. This job required Cloe to coordinate various
city agencies, including the police department, animal
control, and code enforcement. It also required a lot of
1
Because this is an appeal from an entry of summary judgment,
we have construed all of the facts in the light most favorable
to Cloe. See Arizanovska v. Wal-Mart Stores, Inc., 682 F.3d 698,
702 (7th Cir. 2012).
No. 12-1713 3
field work. During a sweep, Cloe would walk the neigh-
borhood and talk with members of the community about
their needs and concerns. Cloe would then monitor
the agencies and write reports about their progress.
Cloe also responded to neighborhood complaints about
derelict buildings and performed preliminary, walk-
around inspections of abandoned structures. By all ac-
counts, Cloe had a knack for field work—she received
positive performance reviews and several community
outreach awards from City leaders.
In March 2008, less than a year after she was hired,
Cloe was diagnosed with MS. After Cloe received her
MS diagnosis, her doctor ordered Cloe to take time off
from work, in part because of the sometimes-debilitating
nature of Cloe’s disease. Cloe returned to work in late
April 2008 but could only work 2-3 days a week and was
restricted to desk duty. In May 2008, her doctor lifted
some of Cloe’s restrictions and allowed her to work
3-4 days a week of desk duty. Because Cloe’s condition
made it difficult for her to walk, her doctor also asked
that Cloe be provided nearby parking and a personal
printer. Before Cloe was diagnosed with MS, her job
involved about 70% field work and 30% office work.
Under her doctor’s restrictions, however, Cloe’s job
became almost entirely desk-bound. Even after re-
turning to work, Cloe continued to suffer the effects
of her condition, including difficulty walking, vision
impairment, memory problems, difficulty concentrating,
and poor spelling and grammar. Cloe also suffers
from attention deficit hyperactivity disorder, panic at-
tacks, fibromyalgia, and hypertension. According to
4 No. 12-1713
Cloe, these conditions also impair her memory and
ability to concentrate.
Starting in June 2008, Cloe began having trouble with
her supervisor. On June 26, 2008, Cooper ordered Cloe
not to attend a sweep scheduled for the following day
because she believed it was a risk to Cloe’s health. Cloe
attended anyway, and Cooper issued her a written disci-
plinary action for insubordination. Cloe attributed the
incident to miscommunication, and Cooper’s overall
review of Cloe’s performance at the end of the year re-
mained positive.
In late 2008, the City restructured its approach to aban-
doned housing. As part of the restructuring, Cloe’s old
job duties were divided among various new positions.
Cloe accepted one of those positions on January 5, 2009,
and became the “Boarding Manager.” On the same day,
Michelle Winfield, the Unsafe Buildings Manager,
became Cloe’s new supervisor.
After Winfield became Cloe’s supervisor, things
quickly went downhill. On January 26, 2009, Winfield
assigned Cloe a large research project to be finished by
5:00 p.m. on January 29, 2009. On January 27, 2009,
Cloe requested leave under the Family and Medical
Leave Act for January 29 and January 30. Winfield ap-
proved the requests, but she also reminded Cloe of the
January 29 deadline and offered to help Cloe meet the
deadline if necessary. Cloe assured Winfield that she
would finish the project on time. The following day,
January 28, Winfield again reminded Cloe of the dead-
line and offered to help her meet it. Cloe again declined
No. 12-1713 5
and said she could finish the project on her own. Later
that day, however, Winfield’s supervisor, Janna Mays,
contacted Cloe directly and told her the deadline had
been pushed back several days. Cloe assumed that
Winfield had been told the same thing and informed
Winfield that she would not be able to finish the project
by January 29. As a result, on February 2, 2009, Winfield
issued Cloe a written disciplinary notice for poor work
performance and failure to perform an assigned duty.
At around the same time, Winfield also started express-
ing concern with Cloe’s written work. Beginning in
late 2008, other agencies and vendors started com-
plaining that they could not understand some of Cloe’s
written communication. At a February 6, 2009 meeting,
Cloe, Winfield, and several others discussed a number
of issues, including poor spelling, bad grammar, and
incorrect addresses on demolition requests. A few days
later, Winfield gave Cloe a written Memorandum of
Understanding that directed Cloe to double-check and
read documents aloud, to have a second person edit
her work, and to submit documents for Winfield’s
review before sending them out.
On April 8, 2009, Cloe received a citizen complaint
about an unsafe structure in need of emergency demoli-
tion. Cloe called Winfield and asked for permission to
inspect the structure that evening. Winfield said no.
The following morning, April 9, 2009, Cloe went to the
property, took photos, and sent them to the responsible
agency. She did not directly request an emergency dem-
olition, though, because she did not think it was her job.
6 No. 12-1713
At about 4:00 p.m. that afternoon, Cloe called Winfield
to tell her about the property and to ask for permis-
sion to attend the demolition. Winfield ordered Cloe
not to attend.
Sometime after 5:00 p.m. that day, Winfield discovered
that nobody had actually ordered an emergency demoli-
tion. Winfield managed to schedule the demolition for
that evening, but the City ended up having to pay
several hundred dollars in overtime because of the late
notice. Although Winfield had forbidden Cloe to attend
the demolition, another supervisor told Cloe to contact
the neighbors and inform them about the demolition.
Cloe drove out to the neighborhood, sat and visited
with the neighbors, and watched the preparations for
the demolition. Once the demolition started, Cloe left.
A few weeks later—sometime in late April 2009—Cloe
met with Winfield and Mays. During the meeting,
Cloe told Mays and Winfield that she had to leave
early because of a doctor’s appointment. Both Mays and
Winfield expressed anger that Cloe was leaving early.
Approximately one week later, on May 4, 2009, Winfield
disciplined Cloe for failing to schedule the April 9 emer-
gency demolition and for later attending the demoli-
tion contrary to orders. Winfield also signed a Per-
formance Improvement Plan stating that Cloe’s perfor-
mance was “below expectations,” that she had “consis-
tently turned in inaccurate work,” and that she had
been “dishonest and insubordinate.” (R. 46-32 at 10.)
On June 11, 2009, Mays issued a Notice of Unacceptable
Performance or Conduct. That notice indicated that
No. 12-1713 7
“requirements for satisfactory performance [by Cloe]
have continued to be unmet” and recommended
Cloe’s termination. (R. 46-35.) The City accepted the
recommendation and terminated Cloe on June 29, 2009.
Cloe sued, alleging that the City (1) failed to accom-
modate her disability; (2) discriminated against her
because of her disability; and (3) retaliated against her
for requesting accommodations for her disability. The
district court granted summary judgment in favor of
the City, and Cloe timely appealed.2
II. A NALYSIS
Summary judgment is proper where “there is no
genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). We review the district court’s entry of sum-
mary judgment de novo, viewing all of the evidence in
the light most favorable to the nonmoving party.
Arizanovska, 682 F.3d at 702. “However, our favor toward
the nonmoving party does not extend to drawing in-
ferences that are supported by only speculation or con-
jecture.” Harper v. C.R. England, Inc., 687 F.3d 297, 306
(7th Cir. 2012) (internal quotation marks and brackets
omitted). Rather, a genuine issue of material fact exists
2
We heard oral argument in this case at the Indiana
University Maurer School of Law. We thank the students,
staff, and faculty of the law school for being such gracious
hosts; we thank counsel for their fine advocacy; and we
thank the parties for their patience.
8 No. 12-1713
only if there is enough evidence that a reasonable
jury could return a verdict in favor of the nonmoving
party. Id.
A. Reasonable Accommodation
We will start with Cloe’s reasonable accommodation
claims. The ADA requires employers to make “reasonable
accommodations to the known physical or mental lim-
itations of an otherwise qualified individual with a disa-
bility who is an applicant or employee, unless [the em-
ployer] can demonstrate that the accommodation would
impose an undue hardship on the operation of the
business of [the employer].” 42 U.S.C. § 12112(b)(5)(A).
In order to establish a prima facie case of failure to ac-
commodate under the ADA, “a plaintiff must show
that: (1) she is a qualified individual with a disability;
(2) the employer was aware of her disability; and
(3) the employer failed to reasonably accommodate the
disability.” Kotwica v. Rose Packing Co., 637 F.3d 744, 747-
48 (7th Cir. 2011).
The ADA’s reasonable accommodation requirement
applies only to “known” disabilities. 42 U.S.C.
§ 12112(b)(5)(A). Thus, “a plaintiff must normally
request an accommodation before liability under the
ADA attaches.” Fleishman v. Cont’l Cas. Co., 698 F.3d 598,
608 (7th Cir. 2012); see also Jovanovic v. In-Sink-Erator Div.
of Emerson Elec. Co., 201 F.3d 894, 899 (7th Cir. 2000)
(“Although there will be exceptions to the general rule . . .
the standard rule is that a plaintiff must normally
request an accommodation before liability under the
No. 12-1713 9
ADA attaches.”) (internal citation omitted). Once the
employer has been put on notice, the employer must
take reasonable steps to accommodate the employee’s
disability. “ ‘The duty of reasonable accommodation is
satisfied when the employer does what is necessary to
enable the disabled worker to work in reasonable com-
fort.’” EEOC v. Sears, Roebuck & Co., 417 F.3d 789, 803
(7th Cir. 2005) (quoting Vande Zande v. Wis. Dep’t of
Admin., 44 F.3d 538, 546 (7th Cir. 1995)).
Here, Cloe contends that the City failed to reasonably
accommodate her by (1) failing to timely provide a
nearby parking space; (2) failing to timely provide her
with a printer close to her office; and (3) failing to
help proofread her work. We address each argument
in turn.
1. Parking space
Cloe first argues that the City failed to grant her
request for a nearby parking space within a reasonable
amount of time. The timeline of events for this claim is
a little hazy, but, viewed in the light most favorable
to Cloe, see Arizanovska, 682 F.3d at 702, the evidence
suggests as follows:
Cloe worked at the Indianapolis City-County Building
located at 200 East Washington Street in downtown
Indianapolis. (R. 54-1 at ¶ 4.) When Cloe first started
working there, she was assigned parking in a garage
at the intersection of Maryland Street and Alabama
10 No. 12-1713
Street, about two blocks away.3 (Id. at ¶ 3.) In April 2008,
Cloe mentioned to her supervisors that she was having
trouble walking from the parking garage. (Id. at ¶ 4.) The
record does not indicate, however, that she specifically
requested an accommodation based on this difficulty.
(Id.) Because of her difficulties, Cloe started parking at
her own expense in a lot catty-corner to the City-
County building at the intersection of Market Street and
Alabama Street. (Id.)
On July 2, 2008, Cloe submitted a list of medical re-
strictions to the City. (See R. 46-18.) The restrictions indi-
cated that “[s]pecified parking is preferred if possible” and
that, “[i]f required to park [at] a distance the patient
will walk back to office at her own pace.” (Id. at 3.) In
response, the City assigned Cloe to a different lot at
Washington Street and Alabama Street, directly across
the street from the City-County Building. (R. 54-1 at ¶ 4.)
It is unclear exactly when Cloe actually received a
parking pass for this lot. Emails sent on October 17,
2008, strongly suggest that Cloe had already been
parking at this new location for some time; in one of
the October 17 emails, Cloe discussed how she had a
hard time finding parking at the new location and that
she had tried to contact a City administrator several
3
We have taken judicial notice of—and drawn our distance
estimates from—images available on Google Maps, “a
source whose accuracy cannot reasonably be questioned, at
least for the purpose of determining” general distances.
United States v. Perea-Rey, 680 F.3d 1179, 1182 n. 1 (9th Cir.
2012) (internal quotation marks and brackets omitted).
No. 12-1713 11
times about the problem but was uncomfortable
leaving voicemail messages. (R. 46-23 at 3-4.) A later
affidavit from Cloe, however, states that she did not
receive the pass until “mid October” 2008. (R. 54-1 at ¶ 4.)
Obviously, these two pieces of evidence are in tension,
although perhaps not irreconcilably so. Harmonizing
them in the light most favorable to Cloe, we will assume
that she received the pass sometime in the weeks
leading up to October 17.
On September 24, 2008—while Cloe was waiting to
receive a permit for the lot on Washington Street and
Alabama Street—Cloe’s doctor wrote a note stating
that Cloe could not walk long distances and that she
needed to park “at the City County building.” (R. 46-22
at 2.) Cloe submitted the note to the City the following
day.4 (R. 54-1 at ¶ 5.) A series of email exchanges
followed on October 17, 2008. (See R. 46-23 at 2-4.) In
those exchanges, Cloe thanked several City employees
for “work[ing] very hard to get me able to park close to
the building.” (Id. at 3.) However, Cloe also indicated
that there had been a misunderstanding and that the
4
The City claims that Cloe did not actually submit the note
until October 2008 and that she admitted as much in her
deposition. (See Appellee’s Br. at 13-14.) But the record on this
point is not as clear as the City suggests. While there is
some tension in the record, we do not think that Cloe’s dep-
osition testimony directly contradicted her later affidavit
that mentioned the September 25 date. Viewed in the light
most favorable to Cloe, the record supports the inference
that Cloe submitted the note on September 25, 2008.
12 No. 12-1713
new lot was not working out—Cloe frequently had to
park on the far side of the lot and walk almost a full
extra block to work. (Id. at 3-4.) A City employee offered
to meet to discuss alternative accommodations. (Id. at 3.)
A visitor’s parking placard for an underground lot
immediately below the City-County building became
available on November 10, 2008. (R. 46-24.) Cloe
received it the following day, along with a special
placard allowing her to park at nearby parking meters
without paying. (R. 46-1 at 55); (R. 46-25). After a while
though, it became clear that these solutions were not
adequate either—the visitor’s spots and street spots
were often full when Cloe needed to park. (R. 46-1 at 55.)
Cloe brought the problem to the City’s attention at
some point in November or December 2008. (Id. at 55-56.)
In early December 2008, another City employee left
his position, and Cloe received the departed employee’s
permanent underground parking spot. (Id.); (R. 54-1 at ¶ 5).
Cloe does not argue that the permanent parking pass
she received in December 2008 failed to meet her needs.
Instead, Cloe contends that the winding path the City
took to get there was unreasonable. There is no
reason, she claims, for the City not to have given her a
permanent parking spot immediately. The delays, in
turn, show that the City did not act reasonably to accom-
modate her disability.
We respectfully disagree. Reasonable accommoda-
tion under the ADA is a process, not a one-off event.
The process begins with the employee, who has the
initial duty to inform the employer of the disability.
No. 12-1713 13
See Sears, 417 F.3d at 803-04. Absent special circum-
stances, like a severe cognitive disability or mental illness,
see Bultemeyer v. Ft. Wayne Cmty. Schs., 100 F.3d 1281,
1285-87 (7th Cir. 1996), the employee’s initial duty re-
quires that he or she “indicate to the employer that she
has a disability and desires an accommodation,” Sears,
417 F.3d at 803. Here, Cloe mentioned to her supervisors
that she was having trouble walking in April, but she
never specifically asked them for an accommodation
until July 2, 2008. As a result, we think that the accom-
modation process began, at the earliest, on July 2,
2008, when Cloe submitted a note from her doctor spe-
cifically requesting parking accommodations. See Ekstrand
v. Sch. Dist. of Somerset, 583 F.3d 972, 976 (7th Cir.
2009) (“our cases have consistently held that disabled
employees must make their employers aware of any
nonobvious, medically necessary accommodations with
corroborating evidence such as a doctor’s note or at
least orally relaying a statement from a doctor,” before
an employer is required to provide an accommodation).
Upon receiving an accommodation request, an em-
ployer is not required to provide the exact accommoda-
tion requested. Sears, 417 F.3d at 802. Instead, “the ADA
obligates the employer to engage with the employee in
an interactive process to determine the appropriate ac-
commodation under the circumstances.” Id. at 805
(internal quotation marks omitted). This process brings
the employee and employer together in cooperation to
“identify the employee’s precise limitations and discuss
accommodation which might enable the employee
to continue working.” Gile v. United Airlines, Inc., 213 F.3d
14 No. 12-1713
365, 373 (7th Cir. 2000). “If this process fails to lead to
reasonable accommodation of the disabled employee’s
limitations, responsibility will lie with the party that
caused the breakdown.” Sears, 417 F.3d at 805.
We do not think that the interactive process broke
down here. After being informed of Cloe’s needs, the
City provided her with parking at a lot closer to the
building. When that did not work out, it gave her a visi-
tor’s pass allowing her to park under the building
and another pass allowing her to park on the nearby
streets. And when that also did not work out, the City
gave her a permanent underground parking spot once
one opened up. This is exactly the sort of “interac-
tive process,” id. at 805, that the ADA calls for.
In retrospect, of course, it clearly would have been
easier to give Cloe a permanent underground pass at
the outset. But that is only clear in retrospect. The City
had no way of knowing that its other seemingly
reasonable accommodations—a different lot, visitor
parking, street parking—would be insufficient. And,
more importantly, once the City found out that its pro-
posed accommodations were insufficient, it acted with
reasonable speed to come up with new ones. We do not
think a reasonable jury could find these efforts unrea-
sonable. As a result, summary judgment was proper on
this claim.
2. Printer
Cloe next contends that the City took too long to give
her a printer in her office. On May 23, 2008, Cloe
No. 12-1713 15
requested that the City provide her with an in-office
printer to minimize the amount of walking she would
have to do. The record is unclear on precisely how long
it took for the printer to arrive, but Cloe’s deposition
testimony indicates that it was somewhere between
two weeks and one month. During that time, a
supervisor had to approve the request, and the City
eventually had to take a printer away from another em-
ployee to give it to Cloe.
Cloe argues that the City could have bought a new
printer or temporarily loaned one to her instead, and
the City’s failure to do so was unreasonable. But these
arguments are problematic. It is unclear whether the
City actually could have loaned her a temporary
printer—the fact that Cloe’s printer eventually had to
be taken from someone else suggests that the City did
not have a lot of extra printers lying around. As for
buying a new printer, a responsible government
is entitled to take time to evaluate alternatives before
spending taxpayer money. In any event, “[i]t is the em-
ployer’s prerogative to choose a reasonable accommoda-
tion; an employer is not required to provide the
particular accommodation that an employee requests.”
Id. at 802. The question, therefore, is not whether the
City could have chosen another reasonable accommoda-
tion, but rather whether the City’s chosen accommoda-
tion was reasonable, in light of all of the facts. We do
not think a reasonable jury could find that the delay
here in tracking down a new piece of equipment was
unreasonable. As a result, summary judgment was
proper on this claim as well.
16 No. 12-1713
3. Proofreading help
Finally, Cloe argues that her mistake-prone written
work was, in part, a symptom of her disability. The
City, she further argues, did not provide enough help
with proofreading her work. While Winfield did
require Cloe to submit her work for proofreading,
Winfield was rarely around, and so Cloe was rarely
able to get her work double-checked. Without this proof-
reading, Cloe’s written work remained uncorrected
and eventually became one of the City’s reasons for
her termination.
This claim cannot succeed, however, because Cloe
has not provided any evidence that she asked for an
accommodation regarding her written work. As dis-
cussed, an employee generally has an initial duty to tell
her employer that she needs an accommodation. See
Fleishman, 698 F.3d at 608; Sears, 417 F.3d at 803. Here,
nothing in the record indicates that Cloe ever told
the City that her poor written work was related to her
disability or that she required an accommodation for
it. Nor does Cloe argue that a mental disability or some
other condition, see Bultemeyer, 100 F.3d at 1285-87,
excused her from her duty to ask for an accommodation.
As a result, summary judgment was proper on this
claim, too.
B. Retaliation
We turn next to Cloe’s claim that the City retaliated
against her. In addition to requiring reasonable accom-
No. 12-1713 17
modations, the ADA also protects employees from
being retaliated against for asserting their ADA rights.
42 U.S.C. § 12203(a). A plaintiff may proceed under
either the “direct” or “indirect” method of proof to estab-
lish a retaliation claim. Dickerson v. Bd. of Trs. of Cmty.
Coll. Dist. No. 522, 657 F.3d 595, 601 (7th Cir. 2011). Cloe
has chosen to proceed under the direct method. (See
Appellant’s Br. at 21.) Accordingly, she must show that
(1) she engaged in a statutorily protected activity;
(2) she suffered an adverse action; and (3) there is a
causal connection between the two. See Dickerson, 657
F.3d at 601. Both sides agree that Cloe engaged in
protected activity (requesting accommodations for her
disability) and that she suffered an adverse employ-
ment action (termination). The question, then, is
whether a reasonable jury could infer a causal link
between the two.
We think so. To show causation under the direct
method, Cloe must provide evidence that her requests
for accommodations were a “substantial or motivating
factor” for her termination. Smith v. Bray, 681 F.3d 888,
900 (7th Cir. 2012). The easiest way to do that is to
present a direct admission of retaliatory motive. See
Coleman v. Donahoe, 667 F.3d 835, 860 (7th Cir. 2012). For
obvious reasons, that sort of admission is rare, and it
did not happen here. The other way to show causation
is “by presenting a convincing mosaic of circumstantial
evidence that would support the inference that a retalia-
tory animus was at work.” Bray, 681 F.3d at 901 (internal
quotation marks omitted). The pieces of that mosaic
generally fall into three categories. Id. The first includes
18 No. 12-1713
“suspicious timing, ambiguous statements oral or
written, and other bits and pieces from which an
inference of retaliatory intent might be drawn.”
Id. (internal ellipsis omitted). The second is “evidence,
but not necessarily rigorous statistical evidence, that
similarly situated employees were treated differently.”
Id. And the third is “evidence that the employer
offered a pretextual reason for an adverse employment
action.” Id.
Viewing the evidence in the light most favorable to
Cloe, we think that a reasonable jury could infer a
causal link between her termination and her exercise of
her ADA rights. A supervisor recommended Cloe’s
termination on June 11, 2009, (R. 46-35), and the City
accepted that recommendation the June 29, 2009, (R. 46-
36). For reasons that escape us, the City’s motion for
summary judgment did not explain who decided to
terminate Cloe and why he or she did so. The “Person-
nel Action Request” that apparently terminated Cloe
does not specify the reason for her termination; instead,
it instructs the reader to “see attached documentation”
that the City did not provide. (Id.) Nevertheless, we
think it reasonable to infer that Winfield’s May 4, 2009
discipline of Cloe played a significant part.
That discipline arose from Cloe’s actions during the
emergency demolition on April 9, 2009. And that dis-
cipline was fishy, if Cloe’s evidence is to be believed.
To begin, there is at least some evidence that the
discipline was unwarranted—while Winfield described
Cloe’s actions on April 9 as insubordinate, Cloe presented
No. 12-1713 19
evidence that she was simply following orders from
another supervisor. Moreover, there is evidence that the
discipline may have been motivated by hostility towards
Cloe’s disability. About a week before the May 4, 2009
discipline, Cloe
had a meeting with Winfield and Janna Mays
in which [she] told Winfield and Mays that [she]
had to leave early because [she] had a doctor’s
appointment. Winfield and Mays expressed
anger at [Cloe] for having to leave early. Within
a week after this incident, when Winfield’s super-
visor Mays returned from her honeymoon, [Cloe]
was written up for the [April 9, 2009 demolition].
(R. 65-2 at 1.)5 These comments echo other comments
about Cloe’s disability. Starting as early as January
2009, Winfield (and Jennefer Fultz, the Department Ad-
ministrator) had played down the seriousness of
Cloe’s condition. According to Cloe’s affidavit, Fultz
“made the following comment to me: ‘you are fine. I have
a friend who has MS and does everything.’ Michelle
Winfield . . . likewise made similar comments in which
she indicated that my medical condition was not serious
and did not affect my ability to work.” (Id.) While none
of these comments explicitly admits retaliatory intent, a
5
The City argues that there is no direct evidence that the
medical appointment at issue was disability-related. That is
true, but we think it is fair to infer as much at the sum-
mary judgment stage, particularly given the wide range
of symptoms of Cloe’s condition.
20 No. 12-1713
reasonable jury could certainly read them as evidence
of hostility towards Cloe’s accommodation requests.
Finally, the timing of the discipline itself was suspi-
cious. And, while suspicious timing will rarely suggest
a causal connection on its own, it can form part of a
“convincing mosaic” when it is paired with other cir-
cumstantial evidence. Harper, 687 F.3d at 308; Bray,
681 F.3d at 901. We think that is the case here. Cloe’s
alleged misconduct happened on April 9, 2009, but
she was not actually disciplined until May 4, 2009.
That month-long lapse of time contrasts with prior dis-
ciplinary write-ups. When Cloe did not finish her
January 29, 2009 project on time, for instance, she was
disciplined just a few days later on February 2, 2009.
Furthermore, the suspicious May 4 discipline took place
only about a week after Winfield and Mays expressed
anger at Cloe leaving for a medical appointment.
That close temporal connection, combined with all of
Cloe’s other evidence, could support an inference that
Cloe’s need for medical accommodations—and not her
actions on April 9—was the real reason behind her disci-
pline and termination. Taken together, we think that
Cloe has provided enough evidence of “suspicious
timing,” “ambiguous statements,” and “other bits and
pieces from which an inference of retaliatory intent
might be drawn” to convince a reasonable jury. Bray,
681 F.3d at 901. Accordingly, we think that Cloe has
made enough of a showing to avoid summary judgment
on her retaliation claim.
No. 12-1713 21
C. Discrimination
Finally, we turn to Cloe’s claim for discriminatory
termination under the ADA. The City argues that Cloe
has not provided enough evidence of discrimination to
survive summary judgment. Cloe argues that the City
forfeited this argument by failing to raise it in the
district court.6 The district court agreed with the City.
After carefully reviewing the record, we think that
Cloe has the better argument.
The ADA forbids employers from discriminating
against disabled employees. 42 U.S.C. § 12112(a). There
are two ways of proving a discrimination claim under
the ADA: the “direct” method and the “indirect”
method. Dickerson, 657 F.3d at 601. Cloe chose to
proceed under the indirect method in the district court,
(R. 54 at 12), and in her opening brief in this court, (Ap-
pellant’s Br. at 15). Under this method, Cloe must
first establish a prima facie case of discrimination by
6
The parties frame their case in terms of waiver, but we think
forfeiture more accurately describes what is at issue here.
Our cases have sometimes blurred the distinction between
waiver and forfeiture. See Alioto v. Town of Lisbon, 651 F.3d
715, 719 n.1 (7th Cir. 2011) (“Consistent with our precedent,
we use the word waive, although forfeit is perhaps the more
accurate term.”). Nevertheless, the concepts are distinct.
“[W]aiver occurs when a defendant intentionally relinquishes
or abandons a known right, whereas forfeiture occurs when
a defendant fails to timely assert his rights.” United States v.
Gaona, 697 F.3d 638, 641 (7th Cir. 2012). Accordingly, we
will use the term “forfeiture.”
22 No. 12-1713
showing that (1) she is disabled under the ADA; (2) she
was meeting her employer’s legitimate employment
expectations; (3) she suffered an adverse employment
action; and (4) similarly situated employees without a
disability were treated more favorably. Dickerson, 657
F.3d at 601. “Once a plaintiff has established a prima
facie case, the defendant must identify a legitimate,
non-discriminatory reason for its employment decision.”
Id. “If the defendant satisfies this requirement, the
plaintiff must then prove by a preponderance of the
evidence that the defendant’s reasons are pretextual.” Id.
The district court held that Cloe could not show that
the City’s reasons for firing her were pretextual.
However, as Cloe correctly points out, the City did not
raise this argument in support of its motion for sum-
mary judgment. Indeed, the City’s brief in support of
summary judgment did not mention wrongful termina-
tion at all. Instead, the City argued only that it did not
discriminate against Cloe when it required her to
submit medical certifications. (R. 45 at 21-25.) As a
result, Cloe contends that the City forfeited the
pretext issue and that it was a mistake for the district
court to rule on that basis. See Anderson v. Gulf Stream
Coach, Inc., 662 F.3d 775, 783 (7th Cir. 2011) (defendant
forfeited argument by failing to raise it in its motion
for summary judgment).
We think that Cloe is correct. “As a general matter, if
the moving party does not raise an issue in support of
its motion for summary judgment, the nonmoving party
is not required to present evidence on that point, and the
No. 12-1713 23
district court should not rely on that ground in its deci-
sion.” Sublett v. John Wiley & Sons, Inc., 463 F.3d 731, 736
(7th Cir. 2006); accord Costello v. Grundon, 651 F.3d 614,
635 (7th Cir. 2011). There is an exception to this rule: “A
district court may enter summary judgment sua sponte
on an issue not explicitly argued if the losing party is
on notice that she has to come forward with all of her
evidence.” Kellar v. Summit Seating Inc., 664 F.3d 169,
174 (7th Cir. 2011); accord Celotex Corp. v. Catrett, 477 U.S.
317, 326 (1986). But we do not think that this exception
applies here. While some of Cloe’s arguments in the
district court might have also been relevant to the
pretext question, (see, e.g., R. 54 at 13) (“the disciplinary
action[s] taken against Cloe which led to her termina-
tion were fabricated”), Cloe never used the word “pretext”
nor couched any of her arguments in “pretext” terms.
To the contrary, Cloe argued that she had “established
her prima facie case which should be sufficient to avoid
summary judgment” and that the City had “not yet
articulated a legitimate, non-discriminatory reason for
its employment action.” (R. 54 at 15.) That language
suggests Cloe did not address pretext, at least not fully.
After all, a plaintiff does not have to address pretext
until the defendant articulates a legitimate, non-discrimi-
natory reason for his or her actions. See Good v. Univ. of
Chi. Med. Ctr., 673 F.3d 670, 679 (7th Cir. 2012). Thus,
it is unclear whether Cloe was “on notice,” Kellar, 664
F.3d at 174, that the district court might decide her case
on the basis of pretext. As a result, we think that it was
a mistake for the district court to grant summary judg-
ment on those grounds.
24 No. 12-1713
So what should we do with Cloe’s discriminatory
termination claim? Cloe insists that we must send the
case back to the district court. The City, on the
other hand, argues that, even without addressing
pretext, we can decide the case because Cloe did not
provide enough evidence to support her prima
facie case. Specifically, the City contents that Cloe has
not shown (1) that her performance was satisfactory, or
(2) that similarly situated employees were treated
better than her.
Given the path this case took through the district
court, we think that a remand is better. While the
support in the record for some of Cloe’s claims is sparse,
the record might look very different without the City’s
forfeiture. Discovery did not close until after the City
moved for summary judgment.7 If the City had presented
its arguments at that time, Cloe might well have pro-
vided new evidence to counter them. Perhaps Cloe has
other evidence that she simply did not present because
it was not relevant to the City’s motion. Or perhaps
Cloe could have used the still-open discovery period
to seek out new evidence to meet the City’s objections.
7
The City moved for summary judgment on September 26,
2011. (R. 44.) An October 14, 2011 minute order indicates
that discovery was complete as of October 13, 2011. (R. 48.)
Another minute order indicates that the parties were still
discussing discovery as late as January 9, 2012. (R. 61.) Either
way, the record clearly indicates that discovery did not
close until after the City moved for summary judgment.
No. 12-1713 25
But a “nonmovant is not required to present evidence
on an issue not raised by the movant.” Costello, 651 F.3d
at 635. And, as discussed, the City’s brief in support of
summary judgment did not put Cloe on notice that
her discriminatory termination claim would be at issue.
As a result, the City’s failure to raise its arguments
below may have prevented Cloe from fully presenting
her evidence. Accordingly, remand is appropriate.
The City raises two arguments to the contrary, but
neither is persuasive. First, the City contends that “the
vagueness of the Complaint” and “the non-specificity
of Cloe’s deposition testimony” should excuse the City’s
forfeiture. (Appellee’s Br. at 26.) But the Federal Rules
of Civil Procedure have ways of dealing with vague
complaints, including motions for a more definite state-
ment, Fed. R. Civ. P. 12(e), and motions to dismiss
for failure to state a claim, Fed. R. Civ. P. 12(b)(6). The
City declined to use either of these tools, so we do not
think that any purported vagueness in Cloe’s com-
plaint excuses the forfeiture here.
Second, the City argues that any forfeiture was
harmless because Cloe briefed the wrongful termina-
tion issue in the district court despite the City’s waiver.
Specifically, Cloe argued that she established a prima
facie case of discriminatory termination (even though, as
discussed, she did not address pretext). And, the City
notes, a district court is free to grant summary judgment
on issues not raised by the parties, “so long as the losing
party was on notice that she had to come forward with
all of her evidence.” Celotex, 477 U.S. at 326; accord
26 No. 12-1713
Kellar, 664 F.3d at 174. Because Cloe discussed her
prima facie case, the City argues that she cannot show
prejudice from the City’s lack of notice, and she
therefore had the functional equivalent of an oppor-
tunity to come forward with all of her evidence. As
a result, the City concludes that we can affirm based
on Cloe’s supposed inability to state a prima facie case.
We are not convinced. Cloe relied primarily on for-
feiture when discussing her discriminatory termination
claims in the district court. (See R. 54 at 12-13.) True,
she also argued, in an abundance of caution, that she
had satisfied her prima facie case. (Id. at 13.) But we
do not think it fair to hold that fact against her,
particularly given that (1) the City failed to move for
summary judgment on that basis; and (2) that failure
may have denied Cloe the opportunity to place
additional evidence of discriminatory termination in
the record. We do not know whether Cloe will
eventually be able to show a triable issue of fact
regarding discriminatory termination. But she deserves
the chance make that showing fairly, with notice, and
with a full opportunity to present her evidence.
III. C ONCLUSION
For the foregoing reasons, we A FFIRM the district
court’s grant of summary judgment on Cloe’s rea-
sonable accommodation claims. We R EVERSE the district
court’s grant of summary judgment on Cloe’s discrim-
ination and retaliation claims, and R EMAND for further
proceedings consistent with this opinion. The parties
shall bear their own costs of appeal.
No. 12-1713 27
H AMILTON, Circuit Judge. I join fully in Judge Kanne’s
opinion for the panel. I write separately to note that the
employer’s unusual presentation of its motion for sum-
mary judgment in this case has highlighted an often
overlooked aspect of the McDonnell Douglas method
of indirect proof of employment discrimination: The
plaintiff-employee cannot be expected to identify sim-
ilarly situated comparators until the employer has
identified its decision-maker and articulated its reason
for the adverse employment decision.
The three basic steps of the McDonnell Douglas method
are familiar: (1) the plaintiff-employee offers evidence of
a prima facie case, which includes identifying one or
more similarly-situated employees; (2) the employer
states a legitimate, non-discriminatory reason for its
decision; and (3) the plaintiff-employee tries to show the
employer’s stated reason is a pretext, allowing for an
inference of unlawful motive. E.g., St. Mary’s Honor Center
v. Hicks, 509 U.S. 502, 506-07 (1993), citing McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973).
The odd thing about the employer’s motion for sum-
mary judgment in this case is that it failed to offer a
lawful reason for the employer’s decision to fire the
plaintiff. The motion also contained no affidavit from
any official stating that he or she made the decision to
fire the plaintiff and stating the reason for the decision.
The motion was therefore flawed from the start. See
Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248,
255 & n.9 (1981) (at second step of McDonnell Douglas
method, “the defendant must clearly set forth, through
28 No. 12-1713
the introduction of admissible evidence, the reasons for
the plaintiff’s rejection”).
In the absence of an identified decision-maker and
reason, the plaintiff-employee could not be expected
to identify comparator employees — people situated sim-
ilarly to her but outside the legally protected group.
The reason is that the plaintiff cannot know who
might have been similarly situated without knowing
the identity of the decision-maker and the reason the
employer relies upon for the decision.
One case that illustrates this relationship is Coleman
v. Donahoe, 667 F.3d 835 (7th Cir. 2012). In reversing
summary judgment for the employer, we explained that
the identity of the decision-maker was important in
evaluating proposed comparators. Id. at 847-48. We also
explained that the employer’s stated reason for firing
the plaintiff in that case was vital in evaluating whether
proposed comparators were truly comparable. Id. at 849-
50, citing Eaton v. Indiana Dep’t of Corrections, 657 F.3d
551, 559 (7th Cir. 2011). The identity of the decision-
maker and the employer’s stated reason for firing the
plaintiff can come only from the employer. This logical
dependence therefore has implications not only for what
is needed in a motion for summary judgment, but also
for the sequence of discovery in some employment dis-
crimination cases where the McDonnell Douglas method
may be used.
This logical dependence of the comparator element of
the prima facie case on the identity of the employer’s
decision-maker and stated reason means that the
No. 12-1713 29
intricate steps of what Judge Wood described as
McDonnell Douglas’s “allemande worthy of the 16th
century,” Coleman, 667 F.3d at 863 (Wood, J., concurring),
do not always follow the linear sequence that court opin-
ions usually describe. That is why some other circuits
consider comparator evidence at the pretext phase of
the McDonnell Douglas method rather than as part of the
prima facie case. See Coleman, 667 F.3d at 859 & n.7,
citing Rioux v. City of Atlanta, 520 F.3d 1269, 1277 (11th
Cir. 2008); Conward v. Cambridge School Comm., 171 F.3d
12, 19, (1st Cir. 1999); Deborah C. Malamud, The Last
Minuet: Disparate Treatment after Hicks, 93 Mich. L. Rev.
2229, 2293 (1995). We need not sort out these differences
in approach for now. The important thing is that we
recognize that the comparator analysis, like the pretext
analysis, depends on the identity of the decision-maker
and the employer’s stated reason for making the chal-
lenged decision.
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