Angelina Povey v. City of Jefferson , 697 F.3d 619 ( 2012 )


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  •                               In the
    United States Court of Appeals
    For the Seventh Circuit
    No. 11-1896
    A NGELINA P OVEY,
    Plaintiff-Appellant,
    v.
    C ITY OF JEFFERSONVILLE, INDIANA,
    Defendant-Appellee.
    Appeal from the United States District Court
    for the Southern District of Indiana, New Albany Division.
    No. 4:09-CV-00161-RLY-WGH — Richard L. Young, Judge.
    A RGUED F EBRUARY 10, 2012—D ECIDED O CTOBER 4, 2012
    Before
    R IPPLE and R OVNER,                Circuit    Judges,     and
    C OLEMAN, District Judge. Œ
    C OLEMAN, District Judge. Angelina Povey injured her
    wrist while working as an attendant at the City
    of Jeffersonville (“Jeffersonville”) animal shelter.
    Jeffersonville ultimately terminated Povey’s employ-
    Œ
    The Honorable Sharon Johnson Coleman, District Judge for
    the United States District Court for the Northern District of
    Illinois is sitting by designation.
    2                                              No. 11-1896
    ment. Povey brought this action under 
    42 U.S.C. § 12101
    alleging that her termination violated the Americans
    with Disabilities Act (“ADA”). The district court
    granted Jeffersonville’s motion for summary judgment,
    finding that Povey does not qualify as “disabled” under
    the ADA. We affirm.
    I. B ACKGROUND
    As one of three adoption assistant/kennel attendants
    for the Jeffersonville animal shelter, Angelina Povey
    was responsible for cleaning the shelter, feeding
    and transporting the animals and assisting with animal
    adoptions. In addition to these duties, the job description
    for a kennel attendant noted that the position “may
    require the [employee] to lift objects heavier than
    30 pounds for extended periods.” Two or three adoption
    kennel attendants worked from Monday through
    Friday, one was assigned to work on Saturdays with
    the office manager and one worked alone on Sundays
    to tend to the animals. Given this schedule, Povey
    was required to work both Saturday and Sunday of
    every third weekend.
    In October 2007, Povey injured her wrist moving a
    dog from one cage to another at the animal shelter.
    Povey reported her injury to her supervisor Harry
    Wilder (“Wilder”). Povey eventually had surgery on
    her wrist and underwent physical therapy to address
    the impairment through August 2008.
    Shortly after Povey’s injury, Kim Calabro (“Calabro”),
    Jeffersonville’s Human Resources Director explained
    No. 11-1896                                              3
    to Wilder that since the animal shelter did not have
    light duty positions available there was no requirement
    to provide Povey with an alternative assignment.
    Wilder, however, allowed her to continue to work,
    but limited her duties to assignments in the cat room
    and the infirmary. He also exempted Povey from
    working weekends because it would entail cleaning
    the entire animal shelter alone, including some lifting
    of heavy objects. Consequently, her co-workers were
    forced to work weekends more frequently and began
    to complain about the change in their work schedules.
    In May of 2008, Povey reported to Calabro that one of
    her co-workers, Louis Hancock, had begun to harass
    her because of her work restriction and the effect it had
    on his work schedule. An investigation by a
    human resources consultant concluded that Hancock
    was not illegally harassing Povey. Nevertheless, to
    avoid friction, the animal shelter required Povey
    and Hancock to work in separate locations at all
    times. Failing to comply with this arrangement by
    either Povey or Hancock could have led to their termina-
    tion.
    Despite the investigation and implementation of
    the separation policy, Povey reported that she felt harass-
    ment “behind her back” and filed a complaint
    against Hancock on August 8, 2008. During the
    same month, Jeffersonville received medical notice
    of Povey’s permanent physical restrictions which prohib-
    ited repetitive hand movement and no lifting, pushing
    or pulling more than five pounds with her right arm.
    4                                               No. 11-1896
    After notice of the restrictions, Povey was placed on
    leave with pay to take effect on August 28, 2008.
    Jeffersonville officials discussed Povey’s restrictions
    and abilities, and determined that Povey could not
    perform the essential functions of adoption kennel atten-
    dant. Povey’s employment was terminated following
    the meeting.
    Following her termination, Povey filed a discrimination
    claim with the EEOC and a complaint alleging two
    claims of discrimination under the ADA against the City
    of Jeffersonville. Povey asserted that Jeffersonville failed
    to accommodate her disability and subjected her to dispa-
    rate treatment. Povey also claimed she was terminated
    in retaliation for her prior complaints of harassment
    and discrimination. Jeffersonville filed a motion for
    summary judgment as to both claims. The district
    court granted defendant’s motion for summary
    judgment and dismissed Povey’s claims finding that
    Povey failed to demonstrate that she was a qualified
    individual with a disability under the ADA. Specifically,
    the court found that Povey failed to present
    sufficient evidence to demonstrate that (1) her wrist
    injury impaired her from completing daily tasks;
    (2) her perceived impairment foreclosed her from accepting
    a broad range or class of jobs; (3) she was perceived
    unable to perform manual tasks; (4) she was a qualified
    individual as defined under the ADA and (5) she
    was terminated in retaliation for exercising her
    rights under the ADA.
    No. 11-1896                                                5
    II. DISCUSSION
    Summary judgment is appropriate when there is
    “no genuine dispute as to any material fact and the
    movant is entitled to judgment as a matter of law.”
    F ED.R.C IV.P. 56(a). We review the district court’s
    decision on summary judgment de novo, viewing
    the evidence in the light most favorable to
    Povey. See Powers v. Holland, 
    667 F.3d 815
    , 819 (7th Cir.
    2011).
    Povey argues that Jeffersonville terminated her employ-
    ment in violation of the ADA, which prohibits discrimina-
    tion against “a qualified individual with a disability
    because of the disability.” 
    42 U.S.C. § 12112
    (a). The
    Act defines a “qualified individual with a disability” as
    “an individual with a disability who, with or without
    reasonable accommodation, can perform the essential
    functions of the employment position that such individual
    holds or desires.” 
    42 U.S.C. § 12111
    (8). To avoid
    summary judgment, a plaintiff must demonstrate a
    general issue of material fact as to whether she is disabled,
    whether she can perform the essential functions of
    the position and whether she has suffered an adverse
    employment action because of her disability. Nese v.
    Julian Nordic Const. Co., 
    405 F.3d 638
    , 641 (7th Cir. 2005).
    We must first consider whether Povey is disabled
    within the meaning of the ADA. Miller v. Ill. Dept. of
    Trans., 
    643 F.3d 190
    , 195 (7th Cir. 2011). The ADA
    defines “disability” as (1) a physical or mental
    impairment that substantially limits one or more of
    the major life activities of the individual; (2) a record
    6                                                 No. 11-1896
    of such an impairment; or (3) being regarded as
    having such an impairment. 
    42 U.S.C. § 12102
    (1). On
    appeal, Povey only claims that Jeffersonville regarded
    her as having a substantial impairment that limits
    her abilities in the major life activity of working.ŒŒ
    To meet the “regarded as” prong, the employer must
    believe, correctly or not, that the employee has an impair-
    ment that substantially limits one or more of the major
    life activities. Cigan v. Chippewa Falls Sch. Dist., 
    388 F. 3d 331
    , 335 (7th Cir. 2004) (citing Sutton v. United
    Airlines, 
    527 U.S. 471
    , 489, 
    119 S.Ct. 2139
    , 2149-50,
    
    144 L.Ed.2d 450
     (1999)). Further, when the major
    life activity of working is at issue, an individual must
    be regarded as “significantly restricted in the ability
    to perform either a class of jobs or a broad range of jobs
    in various classes as compared to the average
    person having comparable training, skills and abilities.”
    Powers v. U.S.F Holland, Inc., 
    667 F.3d 815
    , 820 (7th
    Cir. 2011) (quoting 29 C.F.R. 1630.2(j)(3)).
    To demonstrate that she is substantially limited in
    the activity of working, Povey must provide “some
    proof of the ‘number and types of jobs’ within the ‘geo-
    graphical area to which the [claimant] has reasonable
    access.’ ” EEOC v. Rockwell International Co., 
    243 F.3d 1012
    , 1018 (7th Cir. 2001) (citing Sutton, 
    527 U.S. at
    492-
    93). This evidence does not have to be presented in quanti-
    ŒŒ
    Povey does not challenge the district court’s findings that
    Povey’s wrist injury did not constitute a disability under the
    ADA and that Jeffersonville did not regard her as substantially
    limited in her ability to perform manual tasks.
    No. 11-1896                                                 7
    tative form, but does require the presentation of general
    employment demographics or the approximate number
    of jobs (e.g. ‘few’, ‘many’, or ‘most’) from which an individ-
    ual would be excluded because of an impairment.
    Rockwell Int’l, 
    243 F.3d 1012
    , 1018.
    Povey asserts that testimony from Jeffersonville
    officials indicating that she was not able to use her
    right hand or perform shelter work because of her
    lifting restrictions is evidence that Jeffersonville
    regarded her as disabled under the ADA’s definition.
    Specifically, Povey points to Calabro’s testimony
    that “Povey wasn’t able to use her right hand”
    and Wilder’s testimony that he believed that Povey’s
    work restrictions prevented her from performing her
    job and that Jeffersonville did not have a job for someone
    with a permanent disability. Povey maintains that
    these statements demonstrate Jeffersonville’s perception
    that she was substantially limited to perform any
    job involving manual labor and, therefore, are sufficient
    evid en ce from w h ich a ju ry could con clu de
    that Jeffersonville perceived her as excluded from a class
    of jobs.
    Povey relies on Armour v. Independent Limestone Co.,
    
    2000 U.S. Dist. LEXIS 16650
     (S.D. Ind. Mar. 16, 2000)
    to support her argument. In Armour, the district
    court denied defendant’s motion for summary judgment,
    holding that certain statem ents made by the
    company’s president demonstrated that the plaintiff’s
    employer perceived him as being unable to perform
    a broad range of jobs even without evidence of the
    8                                               No. 11-1896
    actual number of jobs in the relevant geographical area.
    
    Id. at *13-16
    . The court described the employer’s statements
    as “sweeping,” and thereby excluding the plaintiff
    from other classes of jobs beyond those at the company.
    Therefore, the court found that the president’s state-
    ments alone were sufficient to allow a jury to conclude
    that the plaintiff’s employer regarded the plaintiff
    as disabled under the ADA. 
    Id.
    Povey’s situation is distinguishable from Armour.
    Here, none of the statements made by Calabro and Wilder
    are so “sweeping” as to exclude Povey from a broad
    class of jobs. Calabro’s and Wilder’s statements were made
    in response to questions regarding Povey’s abilities
    to complete tasks specific to the Jeffersonville animal
    shelter. For example, Calder’s testimony that Wilder
    told her that Povey “couldn’t do a whole lot of anything”
    was directly in response to a question regarding what
    he specifically said she could not do related to duties in
    the animal shelter facility. Wilder’s statement that
    Jeffersonville, “did not have a job for that” was also
    in response to a specific question regarding whether
    Povey could continue to perform her job at the
    animal shelter given her permanent restrictions. It is
    clear that, when taken in context, the statements only
    refer to Povey’s abilities to work within the animal
    shelter. The fact that Jeffersonville viewed Povey as
    unable to perform the tasks required at the Jeffersonville
    animal shelter tells us nothing about Jeffersonville’s
    perception of her abilities to perform a broad range of
    jobs. See Squibb v. Memorial Ctr., 
    497 F.3d 775
    , 782 (7th
    Cir. 2002) (“A demonstrated ‘inability to perform a
    No. 11-1896                                                 9
    single, particular job’ does not render an individual
    substantially limited in the major life activity of working.”)
    Even viewing the facts in the light most favorable to
    the non-moving party, the statements presented do not
    constitute facts from which a jury can reasonably conclude
    that Jeffersonville regarded Povey as disabled under
    the ADA.
    Having failed to meet her burden to demonstrate that
    she was disabled under the ADA, Povey is not protected
    by its provisions. Therefore, the Court need not
    review Povey’s reasonable accommodation claim. See 
    Id. at 786
    . Without evidence that Povey is disabled,
    Povey cannot survive summary judgment on her disparate
    treatment and failure to accommodate claims under the
    ADA.
    Povey also argues that the district court erred in
    granting Jeffersonville summary judgment with respect
    to her ADA retaliation claim. The ADA prohibits employ-
    ers from retaliating against employees who assert
    their right under the act to be free from discrimination.
    
    42 U.S.C. § 12203
    (a). “Employers are forbidden
    from retaliating against employees who raise ADA claims
    regardless of whether the initial claims of discrimination
    are meritless.” Dickerson v. Bd. of Education, 
    657 F.3d 595
    , 602 (7th Cir. 2011). In a discrimination action,
    a plaintiff can establish a valid case of retaliation using
    either the direct or indirect method of proof. Kersting
    v. Wal-Mart Stores, Inc. 
    250 F.3d 1109
    , 1117 (7th Cir.
    2001). Povey attempts to establish a claim of ADA retalia-
    tion under the direct method of proof. Under the direct
    10                                               No. 11-1896
    method, to prove retaliation, the plaintiff must offer
    evidence that: (1) she engaged in statutorily protected
    activity; (2) the defendant subjected her to an adverse
    employment action; and (3) a causal connection
    existed between the two events. 
    Id.
     There is no dispute that
    Povey complained to Calabro about her co-worker Han-
    cock making continuous harassing comments about
    her wrist impairment and that plaintiff’s termination
    constitutes an adverse employment action. The dispute
    is whether there is a causal connection between the two
    events.
    Povey contends that the circumstantial evidence she
    presented is sufficient for a jury to find a causal connection
    between her complaints of harassment and her termina-
    tion. First, Povey argues that the timing of her
    discharge was suspicious, occurring just three weeks
    after her third harassment complaint. Second,
    Povey testified that Wilder threatened her job by informing
    her that “he had no problem firing employees.”
    Lastly, Povey contends that Jeffersonville’s actions sur-
    rounding her discharge, including: holding a
    meeting about her termination that failed to include a
    person familiar with her job responsibilities, failing to
    meet with her in person to explain her termination
    and failing to offer her an accommodation as a result of
    her permanent restriction, suggest a causal connection
    between her complaints and termination.
    The mere fact that Jeffersonville terminated Povey three
    weeks after a complaint, by itself, is not sufficient to
    create a genuine issue of material fact to support a retalia-
    No. 11-1896                                            11
    tion claim. See Turner v. The Saloon, Ltd., 
    595 F.3d 679
    ,
    687 (7th Cir. 2010). Additionally, there is no evidence
    to suggest that Wilder’s remark, that he had no problem
    firing employees, motivated the decision to terminate
    Povey. See Fuka v. Thompson Consumer Elecs., 
    82 F.3d 1397
    ,
    1403 (7th Cir. 1996). Lastly, Jeffersonville’s alleged
    failures in relation to the manner in which it terminated
    Povey are unrelated to her harassment complaint and
    Jeffersonville was under no obligation to provide her
    with a reasonable accommodation for her impairment
    or engage in a face-to-face meeting or any interactive
    process to address her abilities to perform her job
    because Povey is not disabled under the ADA. These
    facts are insufficient to establish a nexus between her
    termination and her protected activity. Accordingly,
    Jeffersonville is entitled to summary judgment on
    Povey’s retaliation claim.
    For the reasons stated herein, we affirm the granting
    of defendant’s motion for summary judgment dismissing
    each of plaintiff-appellant claims.
    A FFIRMED.
    10-4-12