Frank Pierri v. Medline Industries, Inc. ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19‐3356
FRANK PIERRI,
Plaintiff‐Appellant,
v.
MEDLINE INDUSTRIES, INC.,
Defendant‐Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 17 C 9037 — Robert W. Gettleman, Judge.
____________________
ARGUED MAY 18, 2020 — DECIDED AUGUST 6, 2020
____________________
Before WOOD, BARRETT, and SCUDDER, Circuit Judges.
WOOD, Circuit Judge. Frank Pierri was a chemist for Med‐
line Industries. Initially, he did well at the company, but prob‐
lems arose after he asked for accommodations to enable him
to take care of his ailing grandfather. Medline was receptive,
and it ultimately gave him limited time off for this purpose
under the Family and Medical Leave Act (FMLA). Pierri as‐
serts that his supervisor then became so hostile to him that he
needed personal time off because of the stress. He left on
2 No. 19‐3356
FMLA leave and never returned. Medline eventually termi‐
nated his employment, causing Pierri to sue the company.
The district court granted summary judgment for Medline,
and we affirm.
I
Because we are reviewing a ruling on summary judgment,
we take the facts in the light most favorable to Pierri, without
vouching further for them. Our account should be under‐
stood in this light. See Knopick v. Jayco, Inc., 895 F.3d 525, 527
(7th Cir. 2018).
Pierri began working for Medline in 2011. During the first
four years of his tenure at the company, Pierri earned several
promotions and received consistently positive performance
evaluations. Everything went well until 2015, when Pierri’s
grandfather fell ill with liver cancer. Pierri asked Rich Tyler,
his supervisor, if he could work ten‐hour shifts four days a
week instead of the eight‐hour shifts five days a week that he
had been covering. Pierri explained that he needed the altered
schedule in order to care for his ailing grandfather. Tyler
agreed and made the change. Six months later, however, Ty‐
ler told Pierri that his work performance had suffered and
that he would have to return to the normal five‐day, eight‐
hour shifts. Pierri protested that he needed at least one week‐
day off to take his grandfather on his weekly trips to the hos‐
pital. Tyler offered to let Pierri work Tuesday through Satur‐
day, but Pierri declined this accommodation because he
wanted to attend school on Saturdays. Pierri then discussed
his options with Medline’s Human Resources (HR) Depart‐
ment and learned that he could care for his grandfather using
leave under the Family and Medical Leave Act (FMLA). Med‐
line approved Pierri for one day of leave each week.
No. 19‐3356 3
After Pierri began working under the new schedule, Tyler
began harassing him. Tyler belittled him in front of co‐work‐
ers, demanded to know minutiae of Pierri’s day‐to‐day sched‐
ule, and refused to assign him research and development
work, on which Pierri’s bonus primarily depended.
Pierri filed several complaints with Medline’s HR depart‐
ment, but the harassment continued and began to take a toll
on him. Citing stress and anxiety, Pierri asked for full‐time
FMLA leave. Medline granted his request effective March 30,
2016 and kept him on that status through the end of Septem‐
ber 2016. It then approved him for short‐term, and then long‐
term, disability leave. Nearly a year after his leave had begun,
on March 28, 2017, Medline contacted Pierri’s attorney to find
out whether he planned on returning; it warned the attorney
that if it did not hear from Pierri by the end of the week, he
would lose his job. Pierri did not contact the company, and so
at the end of two weeks, Medline terminated his employment.
Meanwhile, on March 28, 2016, Pierri filed a charge of dis‐
crimination with the Equal Employment Opportunity Com‐
mission (EEOC), alleging that Medline had discriminated
against him based on his grandfather’s disability and had re‐
taliated against him for complaining to HR. He received a
right‐to‐sue letter on September 27, 2017, and he filed a pro se
complaint with the court on December 15, 2017. He later filed
an amended complaint through counsel.
Pierri raised two counts against Medline. First, he con‐
tended that Medline had discriminated against him in viola‐
tion of the Americans with Disabilities Act (ADA), see
42 U.S.C. § 12112(b)(4), for his association with his ailing
grandfather. Second, he argued that Tyler retaliated against
him for complaining to HR and for filing a complaint with the
4 No. 19‐3356
EEOC, see 42 U.S.C. § 12203. The district court granted sum‐
mary judgment to Medline on both counts. Pierri appeals, and
we now affirm.
II
The ADA prohibits an employer from discriminating
against an employee “because of the known disability of an
individual with whom [the employee] is known to have a re‐
lationship or association.” 42 U.S.C. § 12112(b)(4). Pierri as‐
serts that Medline, through Tyler, discriminated against him
because of his association with his grandfather.
In Larimer v. Int’l Bus. Mach. Corp., 370 F.3d 698 (7th Cir.
2004), we identified three situations in which a plaintiff may
bring a claim of associational discrimination. The “expense”
variant arises when an employee’s “[relative] has a disability
that is costly to the employer because the [relative] is covered
by the company’s health plan.” Id. at 700; see also Dewitt v.
Proctor Hosp., 517 F.3d 944, 947−49 (7th Cir. 2008) (denying
summary judgment to an employer on a claim that plaintiff
was fired in order to avoid continuing to pay for her hus‐
band’s medical expenses under its health insurance plan). The
second, “disability by association,” occurs when an employer
fears that the employee may have become infected with a dis‐
ease because of the known disease of an associate of the em‐
ployee. Larimer, 370 F.3d at 700. The third, “distraction,” arises
when “the employee is somewhat inattentive at work because
his spouse or child has a disability that requires his attention,
yet not so inattentive that to perform to his employer’s satis‐
faction he would need an accommodation.” Id.
Pierri cursorily argues that his is a “distraction” situation.
But there is no evidence in the record to support this. Pierri
No. 19‐3356 5
has not argued or presented any evidence that he was dis‐
tracted at work. Indeed, the evidence indicates that Pierri put
forward a strong performance on the job until he was
switched to a four‐day schedule to accommodate his need to
care for his grandfather. Pierri has not pointed to any evi‐
dence that he was distracted, that Medline regarded him as
distracted, or that Medline took any action against him in re‐
taliation for any real or imagined distraction.
We should note at this juncture that the three situations we
identified in Larimer were not meant to be exhaustive. That
said, Pierri has no theory of associational discrimination that
he has supported with any evidence. The record shows that
Medline made ample efforts to accommodate Pierri’s need to
care for his grandfather. It first permitted him to work a four‐
day workweek, asking him to return to a five‐day schedule
only after his performance deteriorated. Even then, it offered
him the opportunity to work Tuesday through Saturday so
that he could take his grandfather to the hospital on Mondays,
an offer which Pierri declined for reasons unrelated to his
need to care for his grandfather. Thus, Pierri has failed to put
forward a prima facie case of associational discrimination un‐
der the ADA. Cf. Magnus v. St. Mark United Methodist Church,
688 F.3d 331, 336 (7th Cir. 2012) (“[A]n employee who cannot
meet the attendance requirements of [his] job is not protected
by § 12112(b)(4).”).
Even if Pierri could show some form of associational dis‐
crimination, summary judgment in Medline’s favor would
still be warranted because Pierri failed to show that he suf‐
fered any adverse employment action. Most of Pierri’s com‐
plaints concern Tyler’s general rudeness toward him. He al‐
leges, for instance, that Tyler brusquely told him not to
6 No. 19‐3356
interrupt while Tyler was having a conversation with another
employee and that Tyler threatened to report him when he
asked to leave work. Pierri also complains that Tyler gave him
an “average” rating on his performance evaluation when he
should have received a rating of “above average.” None of
these complaints describes an adverse employment action.
Hilt‐Dyson v. City of Chicago, 282 F.3d 456, 466 (7th Cir. 2002)
(“Negative evaluations, standing alone, do not constitute ad‐
verse employment actions.”); Jones v. Res‐Care, Inc., 613 F.3d
665, 671 (7th Cir. 2010) (“[U]nfair reprimands or negative per‐
formance evaluations, unaccompanied by some tangible job
consequence, do not constitute adverse employment ac‐
tions.”).
While Pierri’s bonus was affected by these events, that too
did not amount to an adverse employment action. Pierri ad‐
mits that he received his bonus for the first quarter of 2016,
although he alleges that he had to complain to get it. He re‐
ceived $750 for his R&D work that quarter. Medline capped
R&D bonuses at $3,000 per year, and so Pierri was right on
track, receiving one‐quarter of the maximum annual bonus
for the one quarter of the year he worked. Pierri would have
had the opportunity to earn the maximum R&D bonus for the
remaining three quarters of 2016 had he continued to work.
He did not earn the bonus for the simple reason that he com‐
pletely stopped working, not because of any effort by Tyler
(or anyone else at Medline) to deprive him of R&D work. See
Rabinovitz v. Pena, 89 F.3d 482, 488–89 (7th Cir. 1996) (“[L]oss
of a bonus is not an adverse employment action in a case …
where the employee is not automatically entitled to the bo‐
nus.”). Although Tyler’s actions may have had the potential
to cost Pierri his bonus at some later time, they did not cost
him anything during the period he actually worked. This
No. 19‐3356 7
hypothetical loss of potential future bonuses does not consti‐
tute an adverse employment action.
Pierri also points to a change in his mix of work assign‐
ments as evidence of discrimination. The record shows, he
contends, that Tyler systematically assigned him less and less
R&D work and more work conducting fiber testing. This was
a demeaning shift, Pierri says, because fiber testing was typi‐
cally done by less qualified junior technicians. Cases such as
Collins v. State of Illinois, 830 F.2d 692, 702–04 (7th Cir. 1987),
Dahm v. Flynn, 60 F.3d 253, 257 (7th Cir. 1994), and Tart v. Illi‐
nois Power Co., 366 F.3d 461, 473–74 (7th Cir. 2004), all demon‐
strate that such a de facto demotion can be an adverse employ‐
ment action for purposes of the ADA.
That is indeed what those cases hold, but they each in‐
volved a wholesale change in duties, not a simple shift in the
balance of job responsibilities. Although we accept that Pierri
was doing more fiber testing and less R&D, the facts show
that he remained in the same job position, in the same depart‐
ment, and at the same desk. Moreover, the fiber‐testing work
was not performed exclusively by the lower‐level junior tech‐
nicians; Pierri himself had performed just such work before
he asked for the accommodations to help him care for his
grandfather, and fiber testing was one quality‐control meas‐
ure the company took. Finally, although Pierri states that
R&D was 95% of a chemist’s work and that fiber testing did
not require a degree in chemistry, he does not support that
assertion with any evidence in the record.
The district court thus correctly granted summary judg‐
ment in favor of Medline on Pierri’s associational discrimina‐
tion claim. Pierri failed to present material facts in dispute
that would show that Medline discriminated against him for
8 No. 19‐3356
his association with his grandfather or that he suffered an ad‐
verse employment action.
III
Pierri’s retaliation claim fares no better. A plaintiff may
show retaliation either directly or indirectly. In order to make
out a case of retaliation a plaintiff must show that: 1) he en‐
gaged in statutorily protected activity; 2) he suffered an ad‐
verse action; and 3) there was a causal link between the two.
Brown v. Advocate S. Suburban Hosp., 700 F.3d 1101, 1106 (7th
Cir. 2012). One way to show that causal link is through evi‐
dence that “a similarly situated employee who did not engage
in the statutorily protected activity received better treatment.”
Id. That is not essential, however; the critical point is to offer
evidence that would allow the factfinder to conclude that the
employer took the adverse action because of the protected ac‐
tivity.
For the reasons discussed above, Pierri has not shown that
he suffered an adverse employment action as a result of his
internal complaints to Medline. In this court, he also argues
that Medline fired him in retaliation for his complaint to the
EEOC. The latter theory, however, is unavailable to him at this
point, because he failed to include it in his original complaint
to the EEOC, he made no effort ever to amend his EEOC
charge, and he never filed a new charge after he lost his job.
His failure to include this allegation in his charge to the EEOC
forecloses his ability to pursue it in the courts.
We add that his failure properly to exhaust his remedies
before the EEOC is not his only problem with this theory. On
the record assembled at the summary judgment stage, no rea‐
sonable jury could find that Medline ended his employment
No. 19‐3356 9
in retaliation for his complaints, whether to HR or to the
EEOC. It is undisputed that after Pierri had taken a full year
of leave and a year after the EEOC complaint, Medline con‐
tacted him and informed him that he would be fired if he did
not provide notice of his intention to return to work within
two weeks. Pierri never responded. The only possible conclu‐
sion is that it was his failure to respond that led to his termi‐
nation, not retaliation for his complaints. The district court
thus was also correct to grant summary judgment to Medline
on Pierri’s retaliation theory.
IV
We AFFIRM the judgment of the district court.