Kersting, James v. Wal-mart Stores Inc

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-3020
James Kersting,
Plaintiff-Appellant,
v.
Wal-Mart Stores, Inc., #6025 a/k/a
Wal-Mart Distribution Center and
Wal-Mart Stores, Inc.,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 99 C 0785--Stephen Crocker, Magistrate Judge.
Argued January 18, 2001--Decided May 18, 2001
Before Bauer, Manion, and Diane P. Wood,
Circuit Judges.
Manion, Circuit Judge. James Kersting
sued his current employer, Wal-Mart
Stores, Inc., alleging that Wal-Mart
violated the Americans with Disabilities
Act ("ADA") by discriminating against him
because of his disability, and then by
retaliating against him for complaining
about such discrimination. Wal-Mart moved
for summary judgment. The district court
granted the motion, concluding that
Kersting failed to show that he suffered
a materially adverse employment action.
Kersting appeals. We affirm.
I.
James Kersting has been employed at Wal-
Mart’s distribution center in Menomonie,
Wisconsin, since April 1993. In December
1993, Kersting suffered an injury that
required surgery and which resulted in a
permanent disability to his left arm and
back. When he returned to work after
surgery, in consideration of his
disability, Wal-Mart placed him in a
lighter duty position called a Class II
Battery Mechanic. In 1995, Kersting
underwent another surgery to treat his
disability. When he returned to work
after his second surgery, Wal-Mart
continued to employ Kersting at various
light duty assignments from 1995 through
1997.
At the beginning of the summer of 1998,
again in consideration of his disability,
Wal-Mart created a new position for him
called Class II Maintenance Utility. At
that position, Kersting rebuilt equipment
that otherwise would have been discarded
by Wal-Mart. Although Kersting could not
physically perform all of the
requirements of a regular Class II
position, Wal-Mart classified Kersting’s
unique job as Class II so that he would
receive the Class II salary, which was
equivalent to the salary level that he
earned before his surgery. Kersting still
works for Wal-Mart in this capacity.
Wal-Mart pays its employees according to
their employment classification. A Class
III mechanic receives a higher wage than
a Class II employee. The Class III
position also has more intellectual and
physical requirements than a Class II
position. A Class III mechanic must have
an electrical mechanical background, and
an ability to carry heavy tools and
motors, and to climb ladders and crawl
underneath conveyors and over racking.
While Kersting could perform some of the
Class III duties, he could not perform
all of the essential functions of the
Class III position without additional
accommodation.
During the early summer of 1998,
Kersting’s supervisor, Jarrett
Cassellius, notified James Swanson, the
general manager of the Wal-Mart facility,
that Kersting was regularly performing
both Class II and Class III work.
According to a Wal-Mart policy called the
"50 percent rule," if a Class II employee
performed Class III work for 50 percent
or more of his time in a specific pay
period, Wal-Mart would pay him Class III
wages for that entire pay period. Swanson
asked Cassellius to audit Kersting’s work
to determine whether he had performed
enough Class III work during certain pay
periods to qualify for the Class III rate
under the 50 percent rule. Cassellius’s
audits confirmed that Kersting was
performing enough Class III work over
certain pay periods to receive the Class
III rate of pay. Kersting suggested to
Cassellius that because he was routinely
working more than 50 percent at Class III
work, his wage should be permanently
reclassified to the Class III rate.
Cassellius notified Swanson of Kersting’s
request.
Around September 1998, Swanson decided
that in order to avoid the "hassle" of
having to audit Kersting’s work each pay
period to determine whether he qualified
for Class III wages under the 50 percent
rule, Swanson had Cassellius submit a
request to Wal-Mart’s personnel
department to permanently reclassify
Kersting’s wage to the Class III rate.
But Brian Ockerman, Wal-Mart’s personnel
manager, denied the request. According to
Kersting, Ockerman told him that he
denied the request "because you are
disabled and that is a $5,000 a year
difference." Ockerman disputes Kersting’s
allegation, and claims that he denied the
request because it would have required a
total restructuring of a Class III
position, which was not a reasonable
accommodation under the company’s wage
and salary guidelines. Wal-Mart’s wage
classification guidelines do not allow
for a Class II employee to be paid Class
III wages on a permanent basis. Kersting
continues to work at his Class II
position, and remains eligible to collect
Class III pay when he performs enough
Class III work in a pay period to qualify
under the 50 percent rule.
When Kersting requested permanent Class
III wages, no Class III position was
available. Kersting has never applied for
a Class III position. And he testified
that he would not have accepted two Class
III positions that were available some
months before his request to reclassify
his wage because the shifts for those
Class III jobs were undesirable.
In response to Ockerman’s denial of his
request to reclassify his wage, on
October 12, 1998, Kersting filed a
complaint of disability discrimination
with the Wisconsin Equal Rights Division
and the Equal Employment Opportunity
Commission ("EEOC").
On October 23, 1998, Swanson and
Ockerman told Kersting’s supervisor, Kim
Koenig, that Kersting was upsetting his
colleagues by discussing his
discrimination claim and by criticizing
Swanson and Ockerman in the workplace. In
response, Koenig talked with Kersting
that same day about his need to refrain
from discussing his complaint in the
workplace, and he indicated that
continued discussions could lead to
Kersting’s termination. As a result of
that warning, on March 10, 1999, Kersting
filed a retaliation claim against Wal-
Mart, alleging that the company
retaliated against him for filing his
discrimination claim.
In April 1999, Kersting was called to a
meeting in Swanson’s office, where he was
given a disciplinary warning for
allegedly talking to co-workers about his
discrimination claim. Kersting also
alleges that after he filed his
discrimination claim, he was put to work
in a variety of make-work and demeaning
jobs, and was deprived of the tools
necessary to do his work. Wal-Mart never
reduced Kersting’s salary or changed his
work hours after he filed his
discrimination claim.
After receiving his right-to-sue notices
from the EEOC on his discrimination and
retaliation claims, Kersting sued Wal-
Mart in federal court. Wal-Mart moved for
summary judgment. The district court
granted the motion, concluding that
Kersting’s discrimination claim failed
because the denial of his request to
permanently reclassify his wage to the
Class III level while he continued to
work in his Class II position was not an
adverse action. On Kersting’s retaliation
claim, the district court decided that
while Kersting complained about six
adverse actions, he only charged the
October 23, 1998 verbal warning in his
EEOC complaint. The court determined that
it would only consider the charged
incident and the April 1999 written
warning because it was reasonably related
to the charged incident. The court
concluded that the verbal and written
warnings did not amount to an adverse
employment action because Kersting had
not been terminated, demoted, placed on
probation, or subjected to any other
tangible job consequence. The district
court also commented that Kersting’s four
other alleged instances of retaliation
did not amount to a materially adverse
employment action. Kersting appeals.
II.
Kersting argues on appeal that the
district court erred in granting summary
judgment for Wal-Mart. We review de novo
the district court’s decision to grant
summary judgment to Wal-Mart, construing
all facts, and drawing all reasonable
inferences from those facts, in favor of
Kersting, the non-moving party. Oest v.
Illinois Dep’t. of Corrections, 240 F.3d
605, 610 (7th Cir. 2001). Summary
judgment is proper when the "pleadings,
depositions, answers to interrogatories,
and admissions on file, together with the
affidavits, if any, show that there is no
genuine issue as to any material fact and
that the moving party is entitled to a
judgment as a matter of law."
Fed.R.Civ.P. 56(c). To survive summary
judgment, Kersting must "set forth
specific facts showing that there is a
genuine issue for trial." Fed.R. Civ.P.
56(e).
According to Kersting, Wal-Mart violated
the ADA when it denied him a raise and
promotion because of his disability, and
retaliated against him for filing his
discrimination complaint. "The ADA
prohibits an employer from discriminating
against a qualified individual with a
disability." Bekker v. Humana Health
Plan, Inc., 229 F.3d 662, 669 (7th Cir.
2000) (citing 42 U.S.C. sec.
12112(a))./1 To establish disability
discrimination, Kersting must show all
three of the following elements: (1) that
he is disabled within the meaning of the
ADA, (2) that he is qualified to perform
the essential functions of his job either
with or without reasonable accommodation,
and (3) that he suffered from an adverse
employment action because of his
disability. Bekker, 229 F.3d at 670.
To establish the third element of an ADA
claim, an employee may present direct
evidence that the employment decision was
motivated by the employer’s
discriminatory animus. Id. Direct
evidence is evidence that "’in and of
itself suggests’ that someone with
managerial authority was ’animated by an
illegal employment criterion.’" Id.
(quoting Sheehan v. Donlen Corp., 173
F.3d 1039, 1044 (7th Cir. 1999)).
In this case, the parties do not dispute
that Kersting is disabled. And for
purposes of summary judgment, we must
accept as true Kersting’s claim that
Ockerman told him that he would not
reclassify Kersting’s wage "because you
are disabled." But the ADA does not
forbid "every bigoted act or gesture that
a worker might encounter in the
workplace." Hunt v. City of Markham,
Ill., 219 F.3d 649, 653 (7th Cir. 2000).
The employee must also show that he
suffered an adverse employment action.
Id. at 653.
An adverse employment action must be
"materially" adverse to be actionable,
meaning "more than a ’mere inconvenience
or an alteration of job responsibilities.’"
Oest, 240 F.3d at 612 (quoting Crady v.
Liberty Nat’l Bank & Trust Co., 993 F.2d
132, 136 (7th Cir. 1993)). For example, a
"’materially adverse change might be
indicated by a termination of employment,
a demotion evidenced by a decrease in
wage or salary, a less distinguished
title, a material loss of benefits,
significantly diminished material
responsibilities, or other indices that
might be unique to a particular situation.’"
Oest, 240 F.3d at 612 (quoting Crady, 993
F.2d at 136). We have noted, however,
that "not everything that makes an
employee unhappy is an actionable adverse
action. Otherwise, minor and even trivial
employment actions that ’an . . .
employee did not like would form the
basis of a discrimination suit.’" Oest,
240 F.3d at 613 (quoting Smart v. Ball
State Univ., 89 F.3d 437, 441 (7th Cir.
1996)). Because "’adverse actions can
come in many shapes and sizes,’" Oest,
240 F.3d at 613 (quoting Knox v. State of
Indiana, 93 F.3d 1327, 1334 (7th Cir.
1996)), we must consider the particular
facts of this case to determine whether
Kersting has suffered a materially
adverse employment action.
A. Discrimination Claim
Kersting argues on appeal that he
suffered an adverse employment action
when Ockerman refused to grant him a
raise by denying his request to
reclassify his wage at the Class III
level.
This court has held that the denial of
a raise may constitute a material adverse
action. Fyfe v. City of Fort Wayne, 241
F.3d 597, 602 (7th Cir. 2001) (citing
Hunt, 219 F.3d at 654). That is because a
raise may be a "normal and expected
element" of a worker’s salary, Fyfe, 241
F.3d at 602, that keeps his "wages from
falling in real terms" due to the rate of
inflation. Hunt, 219 F.3d at 654. Thus,
denying a worker’s raise may mean
"cutting his wage in real terms." Id.
Moreover, raises may be the normal way
for a company to reward a worker’s
increased productivity that comes with
experience on the job, and to satisfy a
worker’s legitimate expectations for a
rising standard of living. Id.
Kersting was not denied a raise.
Ockerman did not deny Kersting a normal
and expected raise for his Class II posi
tion; he denied a proposal to permanently
reclassify Kersting’s wage to the level
earned by workers in the Class III
position. Kersting received, and
continues to receive, Class III pay for
each pay period in which his work
qualifies for Class III pay under the 50
percent rule. Hence, his wages have not
been cut at all, even in real terms, as
Wal-Mart’s 50 percent rule provides him
with a windfall for each pay period that
the rule applies. Furthermore, the
proposal to reclassify his wage was not
of the nature of a raise because it was
not a normal and expected element of
Kersting’s employment at Wal-Mart. It was
contrary to the company’s wage
classification guidelines, and purely
discretionary as Swanson made the
proposal because he merely wanted to
avoid the "hassle" of having to audit
Kersting’s work each pay period.
Kersting also argues that he suffered an
adverse action because Ockerman denied
him a promotion because of his
disability. Although this court has
recognized that the denial of a promotion
may be an adverse action, see Hunt, 219
F.3d at 654, that is not what happened in
this case. Kersting cannot perform all of
the essential functions of the Class III
position. He never sought a promotion to
the Class III position, as he never
applied for one when there was an
opening. Moreover, no Class III positions
were available when the proposal to
reclassify his wage was sent to Ockerman.
Ockerman refused to reclassify Kersting’s
wage; he did not deny him a promotion.
Although Kersting does not characterize
his complaint as a request for a further
accommodation, in effect that is what his
claim would entail. He is essentially
arguing that Wal-Mart violated the ADA by
denying his request for a further
accommodation in the form of a permanent
Class III wage for his modified Class II
position. Although Kersting cannot
perform all of the essential functions of
the Class II position, Wal-Mart
accommodated Kersting by creating a
unique position called the Class II
Maintenance Utility position. And the
company’s 50 percent rule has enabled
Kersting to make Class III wages during
some pay periods. Kersting now wants
something that is one of a kind--a
permanent Class III wage for work at his
unique Class II position. But Wal-Mart
"is not obligated to provide [Kersting]
the accommodation he requests or prefers,
the employer need only provide some
reasonable accommodation." Gile v. United
Airlines, Inc., 95 F.3d 492, 499 (7th
Cir. 1996); see also Schmidt v. Methodist
Hosp. of Indiana, 89 F.3d 342, 344 (7th
Cir. 1996) ("[r]easonable accommodation
does not require an employer to provide
literally everything the disabled
employee requests."). Clearly, Wal-Mart
satisfied its statutory duty when it
tailored Kersting’s Class II job to
accommodate his disability. And the
company’s decision not to provide a
further accommodation (in the form of a
Class III wage for a Class II worker) is
not a violation of the ADA. Therefore,
Kersting’s discrimination claim fails.
Although not argued by the plaintiff, we
also recognize that in the Title VII
context, an employer’s decision to
deprive an employee of at least being
considered for a position may constitute
an adverse employment action. Hishon v.
King & Spalding, 467 U.S. 69, 76 (1984).
But the benefit of being considered for a
higher post must be held out by the
employer as a privilege of employment; in
other words, it must be the employer’s
customary practice, and thus "part and
parcel of the employment relationship"
that the employee had reason to
anticipate he would be able to receive.
Id. In Hishon, the Supreme Court
concluded that the opportunity for an
associate to be considered for
partnership in a law firm was a "term,
condition, or privilege" of employment
because the law firm used the prospect of
partnership to induce young lawyers to
join the firm, and because associates
were terminated if they were not elected
to become partners. Hishon, 467 U.S. at
76. In that context the lawyer either
moved up or moved out; thus at least
being considered for moving up to partner
was essential.
But that is not the case here. Advancing
to Class III within a certain period of
time is not a prerequisite for Kersting
to keep and succeed in his Class II
position. Swanson’s proposal to
reclassify Kersting’s wage to the Class
III level was purely discretionary,
unique, and contrary to Wal-Mart’s wage
classification guidelines. There is no
evidence to indicate that consideration
for the reclassification was a customary
practice at Wal-Mart, or a term,
condition, or privilege of Kersting’s
employment. Thus, even if Ockerman
deprived Kersting of nondiscriminatory
consideration for Class III wages, that
was not an adverse employment action.
B. Retaliation Claim
Kersting also argues on appeal that the
district court improperly granted summary
judgment for Wal-Mart on his retaliation
claim. The ADA’s retaliation provision
prohibits employers from
"discriminat[ing] against any individual
because [he] has opposed any act or
practice made unlawful by [the ADA] or .
. . has made a charge [under the ADA]."
42 U.S.C. sec. 12203(a). A plaintiff
bringing a retaliation claim may present
either direct evidence of discrimination
or indirect evidence under the
burden-shifting method set out in
McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). Silk v. City of Chicago,
194 F.3d 788, 799 (7th Cir. 1999).
Because Kersting proceeds under the
latter course, he must first present a
prima facie case of retaliation by
demonstrating that: (1) he engaged in
statutorily protected expression; (2) he
suffered an adverse action; and (3) there
is a causal link between the protected
expression and the adverse action. Id. If
Kersting establishes a prima facie case,
Wal-Mart must then offer a legitimate,
nondiscriminatory reason for its adverse
action. Id. Then Kersting must rebut that
legitimate reason by showing that Wal-
Mart’s action was motivated by a
discriminatory purpose. Id. "’Although
the burden of production shifts under
this method, the burden of persuasion
rests at all times on the plaintiff.’"
Id. (quoting Adusumilli v. City of
Chicago, 164 F.3d 353, 362 (7th Cir.
1998)).
Kersting has identified six events or
decisions where he alleges that Wal-Mart
retaliated against him for filing his
discrimination claim: (1) On October 23,
1998, Koenig warned Kersting that he
could be fired if he continued to speak
of his discrimination complaint and to
criticize management at work; (2) in
April 1999, Kersting’s supervisors gave
him a written disciplinary warning for
allegedly talking to co-workers about his
discrimination complaint; (3) for
approximately a year and a half, Wal-Mart
assigned Kersting to work in an area in
the distribution center known as "the
cage"; (4) after leaving the cage, Wal-
Mart assigned Kersting to work in an area
with no workbench, lighting or outlets;
(5) in the Winter of 1999, Kersting was
deprived of his tool box; and (6) in the
Spring of 1999, Wal-Mart prohibited
Kersting from using a computer to
document parts that he used.
The only incident alleged in Kersting’s
EEOC charge was the October 27, 1998
warning. Thus, the district court
concluded that it need only consider that
charged allegation along with the April
1999 warning because it was reasonably
related to the charge. The court
determined that Kersting waived the other
four allegations because he failed to
present them to the EEOC for
investigation.
Kersting’s first contention on appeal is
that the district court should have
considered all of his allegations because
they are all reasonably related to the
charged allegation. "’A plaintiff may
pursue a claim not explicitly included in
an EEOC complaint only if [his]
allegations fall within the scope of the
charges contained in the EEOC complaint.’"
Conley v. Village of Bedford Park, 215
F.3d 703, 710 (7th Cir. 2000) (quoting
Cheek v. Peabody Coal Co., 97 F.3d 200,
202 (7th Cir. 1996)). To determine
whether the allegations in the complaint
fall within the scope of the earlier EEOC
charge, we must look at whether the
allegations are "’like or reasonably
related to’" those contained in the
charge. Conley, 215 F.3d at 710 (quoting
Cheek, 97 F.3d at 202). Claims are
reasonably related if there is a factual
relationship between them. Cheek v.
Western and Southern Life Ins. Co., 31
F.3d 497, 501 (7th Cir. 1994). That means
that "the EEOC charge and the complaint
must, at minimum, describe the same
conduct and implicate the same
individuals." Id. (emphasis in original).
In this case, we agree with the district
court that Kersting waived all of his
allegations of retaliation except for the
charged allegation (the October 23, 1998
warning) and the April 1999 written
warning, as it involved the same
individuals (Kersting’s supervisors,
especially Koenig and Swanson) and
similar conduct (warnings about
discussing the discrimination complaint
in the workplace) as the charged
allegation. The other allegations do not
involve the same type of conduct, and
there is no indication in the record that
the same supervisors were involved.
Therefore, we need only consider whether
the verbal and written warnings
constituted illegal retaliation.
We conclude that on this record, the two
warnings do not amount to a materially
adverse employment action and thus do not
constitute illegal retaliation. The
record demonstrates that Kersting was
warned not to discuss his discrimination
claim at work because his supervisors
believed that it disrupted the workplace.
There is no indication in the record that
Kersting received the warnings simply
because he filed a discrimination claim.
The warnings were due to his discussion
of his complaints and criticism of
management while at the workplace.
Significantly, the two warnings did not
result in, and were not accompanied by,
any tangible job consequence. Kersting
has not been terminated, placed on
probation, or hindered in any way from
maximizing his pay under the 50 percent
rule since he complained to the EEOC and
sued Wal-Mart. Thus, we conclude that the
two warnings alone do not rise to the
level of a materially adverse employment
action. See Sweeney v. West, 149 F.3d
550, 556-57 (7th Cir. 1998) (holding that
an employee did not suffer from an
adverse employment action when she was
unfairly reprimanded and warned that any
further complaints about her conduct
would result in disciplinary action); see
also Kerns v. Capital Graphics, Inc., 178
F.3d 1011, 1014-17 (8th Cir. 1999)
(holding that a supervisor’s criticism
and threat that the plaintiff would be
"fired for any subsequent exercise of
poor judgment" did not amount to an
adverse employment action). Because
Kersting has failed to demonstrate that
he suffered an adverse action, his
retaliation claim fails./2
III.
Because Kersting has not presented
sufficient evidence to show that there is
a triable issue that he suffered a
materially adverse employment action, his
discrimination and retaliation claims
fail. We thus Affirm the district court.
FOOTNOTES
/1 The ADA prescribes that: "No covered entity shall
discriminate against a qualified individual with
a disability because of the disability of such
individual in regard to job application
procedures, the hiring, advancement, or discharge
of employees, employee compensation, job
training, and other terms, conditions, and
privileges of employment." 42 U.S.C. sec.
12112(a).
/2 We also note that none of the other four allega-
tions (taken individually or collectively)
amounts to a materially adverse employment ac-
tion. Kersting’s claim that he was assigned to an
undesirable work area called "the cage" is based
solely on his own allegations that this fenced-in
area within the building seemed to himself and
others like a kind of punishment. But he provides
no testimony from colleagues to support his
allegation, and no evidence that work in the cage
involved lower pay, different hours, or any sort
of hindrance from earning Class III pay under the
50 percent rule. Although Kersting may have been
annoyed with having to work in that area, that
does not mean that the assignment was an adverse
action. See Smart, 89 F.3d at 441.
Kersting also fails to show that his other
three allegations amount to an adverse action. On
his claim that he was assigned to an area with no
workbench, lighting or outlets, Kersting also
testified that he did not dislike the area, and
that it was adequate. Regarding his claim that he
was deprived of his tool box, Kersting presents
no evidence to indicate who deprived him of his
tool box and why, and whether that action also
deprived him of the ability to complete his work
or maximize his pay. Finally, concerning Kerst-
ing’s claim that Wal-Mart prohibited him from
documenting parts on a computer, Kersting never
complained about the policy except to state that
it "just seems a little goofy." All of these
allegations merely involve minor or trivial
employment actions, and thus do not rise to the
level of an adverse employment action. Id. Fur-
thermore, all six actions together still do not
amount to a materially adverse employment action.