Burks, Pamela J. v. WI Dept Trans

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-2950
PAMELA J. BURKS,
Plaintiff-Appellant,
v.
WISCONSIN DEPARTMENT OF
TRANSPORTATION, MARCIA L. TRASKA,
and MARY P. FORLENZA,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 04 C 503—Barbara B. Crabb, Chief Judge.
____________
ARGUED JANUARY 10, 2006—DECIDED SEPTEMBER 29, 2006
____________
Before BAUER, RIPPLE and WOOD, Circuit Judges.
RIPPLE, Circuit Judge. After her employment was termi-
nated on August 9, 2002, Pamela Burks brought this
action against her former employer, the Wisconsin Depart-
ment of Transportation (“WDOT”), as well as two WDOT
employees, Marcia Traska and Mary Forlenza. In her
complaint, Ms. Burks alleged a number of claims against the
defendants: discrimination and the creation of a
hostile work environment on the basis of disability in
violation of the Vocational Rehabilitation Act of 1974
2 No. 05-2950
(“Rehabilitation Act”), 29 U.S.C. § 794; unlawful discrimina-
tion based on race, color and ancestry in violation of Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.;
retaliation for activities protected by Title VII; retaliation on
the basis of disability in violation of the Rehabilitation Act;
deprivation of property without due process of law in
violation of the Fourteenth Amendment; and harassment
and retaliation on the basis of race also in violation of the
Fourteenth Amendment.
The district court awarded summary judgment in favor of
the defendants on all counts. For the reasons set forth in the
following opinion, we affirm the judgment of the district
court.
I
BACKGROUND
A. Facts
Ms. Burks is of African-American and Hispanic descent.
As a result of a 1984 automobile accident, she suffers from
permanent hearing and sight impairment, and shoulder,
neck and spinal cord injuries. These injuries make it difficult
for her to walk, sit or stand for extended periods of time.
In 2000, Ms. Burks applied for a position in the WDOT
Bureau of Transit and Local Roads, Local Transportation
Programs and Finance Section. She interviewed with Ms.
Traska and Ms. Forlenza in December of 2000, and she
disclosed the nature of her disabilities, as well as some
of her requested accommodations. Ms. Burks ultimately
was hired and appointed to the position of program man-
ager in November 2001; in that position, she was required
to complete a probationary period of six months before
assuming permanent employee status. Ms. Traska was a
Unit Supervisor in the Bureau of Transit and was Ms. Burks’
No. 05-2950 3
immediate supervisor during her term of employment.1 Ms.
Forlenza was a Planning and Analysis Administrator at
WDOT and was Ms. Traska’s immediate supervisor.
According to Ms. Burks, soon after she was hired, she
filled out a disability self-identification form. She also
informed Ms. Traska and Ms. Forlenza that, because she
previously had been employed by the State of Wisconsin,
her disability information already should have been on
file. Ms. Burks claims that, because of her disability, she
needed a number of reasonable accommodations: an
amplified telephone, visually contrasting paper, large
grip pencils and pens, reduced lighting, a chair with
adjustable arm rests and a raised work station so that
she may work while sitting or standing. Ms. Burks al-
leged that in late November or early December 2001, she
was invited to the WDOT chair lab to select a chair that
would accommodate her disability. Plans for the raised
work station were not approved until May 2002, and the
work station was not completed prior to Ms. Burks’ termi-
nation. Ms. Burks believes that the untimeliness of these
accommodations is evidence of disability discrimination.
1
In her appellate brief, Ms. Burks argues that Ms. Traska was
not a supervisor during the time that Ms. Burks was employed at
WDOT, even though Ms. Traska informally acted as her supervi-
sor. See Appellant’s Br. at 4. However, this assertion contradicts
Ms. Burks’ complaint, in which she alleges that Ms. Traska was
her immediate supervisor. See R.2 at 3. In any event, to the extent
that it is material, there does not appear to be a genuine issue of
fact as to whether Ms. Traska was supervising Ms. Burks during
her employment with WDOT. Ms. Traska completed Ms. Burks’
three- and six-month evaluations and was responsible for the
weekly monitoring of Ms. Burks’ performance after Ms. Burks’
six-month evaluation.
4 No. 05-2950
In her position as program manager, Ms. Burks processed
applications from localities for program benefits from
WDOT. According to Ms. Burks, a substantial portion of her
workload involved the use of a computer application, the
Local Roads Improvement Program (“LRIP”). At the time of
Ms. Burks’ hire, another employee, Ms. Cole, held a position
similar to the one Ms. Burks assumed. Ms. Burks and Cole
often worked closely together on projects, completing the
same type of work and using the same computer program.
Ms. Burks also had frequent interaction with Ms. Watzke, a
receptionist on the floor, and Ms. Brigham-Abrouq, who
managed the LRIP computer application and consulted with
the unit on the use of that application.
On February 19, 2002, Ms. Burks received a positive three-
month probationary review, completed by Ms. Traska. The
review stated that Ms. Burks was “meet[ing] normal
performance standards,” and that “she can be counted on to
follow through on assignments” in a timely manner. R.9,
Ex.E at 2.
According to Ms. Burks, she complained to Ms. Forlenza
for the first time in March 2002 that she was being harassed
because of her race and disabilities. Ms. Burks claims that
the harassment included Ms. Traska’s coming to her
office several times a day, as well as Ms. Traska’s spreading
of rumors around the office about Ms. Burks’ disabilities
and her need for accommodation. After March, Ms. Burks
alleges that she continued to alert Ms. Forlenza about
incidents of discrimination. Ms. Burks also claims that, over
the course of her employment, both Ms. Traska and Ms.
Forlenza “became increasingly critical, hostile, and down-
right rude.” R.16 at 8. According to Ms. Burks, Ms. Traska
and Ms. Forlenza would “verbally attack” and “berate” her
at unit meetings. R.15 at 9-10. She also alleges that the
No. 05-2950 5
defendants began to criticize the manner in which she took
meeting notes that were shared with the group.
On May 15, 2002, Ms. Burks received her second evalua-
tion from Ms. Traska; it was noted that her performance
“d[id] not meet normal performance standards.” R.9, Ex.G
at 2. Ms. Traska also noted that there had been a decline in
the “level and dependability of [Ms. Burks’] work perfor-
mance and attitude” since the three-month evaluation,
and that her performance had “been uneven and unpredict-
able.” Id. Also, Ms. Traska wrote that the “inconsistent
quality of her work and accompanying attitude are not
acceptable” and that Ms. Burks tended to blame others
for her mistakes. Id. However, Ms. Traska noted that
Ms. Burks “recently . . . [had] take[n] more initiative,
responsibility, and accountability for her work.” Id. Accord-
ingly, Ms. Forlenza extended Ms. Burks’ probationary
period three more months, for a total of nine months, and
set up weekly monitoring of Ms. Burks by Ms. Traska.
On August 9, 2002, Ms. Burks was terminated during
her extended probationary period. A letter sent to Ms. Burks
gave five reasons for her termination: (1) “Failure to meet
assigned deadlines;” (2) “Failure to follow-up
and effectively communicate with local officials;” (3) “Lack
of initiative in performing [her] job duties;” (4) “Not
following directions and providing deliverables as re-
quested;” and (5) “Not taking personal responsibility for
effectively completing [] work assignments.” R.9, Ex.I at 1.
After Ms. Burks was terminated, Cole was asked to
remove all paperwork from Ms. Burks’ desk and to com-
plete a detailed inventory of everything found there.
Watzke assumed Ms. Burks’ former duties as a program
manager.
6 No. 05-2950
Ms. Burks later filed this action. She alleged claims against
WDOT for retaliation and for racial discrimination in
violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq. She further alleged discrimination and
creation of a hostile work environment based on disability
in violation of section 504 of the Rehabilitation Act, 29
U.S.C. § 794(a). Ms. Burks’ action also included claims
against Ms. Traska and Ms. Forlenza under 42 U.S.C. § 1983for racial discrimination and retaliation in violation of the
Equal Protection Clause of the Fourteenth Amendment; for
discrimination and retaliation based on disability in viola-
tion of the Rehabilitation Act, 29 U.S.C. § 794; and for
deprivation of property without due process of law in
violation of the Fourteenth Amendment. The district court
granted summary judgment to the defendants on all these
claims.
At issue in this appeal is the defendants’ alleged discrimi-
nation based on race and disability, as well as their al-
leged retaliation against Ms. Burks based on her complaints
of racial and disability discrimination.
II
DISCUSSION
We review the district court’s grant of summary judgment
de novo, examining the facts in a light most favorable to Ms.
Burks as the non-moving party and drawing all reasonable
inferences in her favor. See Haywood v. Lucent Techs., 323
F.3d 524, 529 (7th Cir. 2003).
A. Discrimination Based on Race
Ms. Burks alleges racial discrimination in violation of Title
No. 05-2950 7
VII and the Fourteenth Amendment. Our analysis is the
same for both claims.2 In her response to the defendants’
motion for summary judgment, Ms. Burks claims that she
has demonstrated racial discrimination under the indirect
method,3 thus establishing a prima facie case of discrimina
2
Although Ms. Burks brought suit against WDOT under Title
VII and brought suit against Ms. Traska and Ms. Forlenza
under § 1983, the district court correctly noted that the claims
should be analyzed in the same way and that the same stan-
dard of liability should be imposed. See R.40 at 8 (citing Williams
v. Seniff, 342 F.3d 774, 788 n.13 (7th Cir. 2003)). The only differ-
ence between a claim under Title VII and a claim under § 1983 is
who can be named as a defendant in the action. See R.40 at 9.
3
There are two ways for a plaintiff to establish discrimination,
the “direct method” and the “indirect method.” The “indirect
method” is the familiar burden-shifting test laid out in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). The “direct method,”
on the other hand, requires the plaintiff to put forth evidence that
demonstrates that she was a member of a protected class and “as
a result suffered the adverse employment action of which [s]he
complains.” Sylvester v. SOS Children’s Villages Illinois, Inc., 453
F.3d 900, 902 (7th Cir. 2006) (emphasis in original). Under the
direct method, a plaintiff must come forward either with direct
or circumstantial evidence that “points directly to a discrimina-
tory reason for the employer’s action.” Blise v. Antaramian, 409
F.3d 861, 866 (7th Cir. 2005).
On appeal, Ms. Burks also makes reference to showing a
“convincing mosaic of circumstantial evidence,” alluding perhaps
to the direct method of proof of a discrimination claim. Appel-
lant’s Br. at 23; see also Blise, 409 F.3d at 866 (stating that
a “plaintiff can . . . prevail under the direct method of proof by
constructing a convincing mosaic of circumstantial evidence that
allows a jury to infer intentional discrimination by the
(continued...)
8 No. 05-2950
tion under the familiar burden-shifting test of McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). See Plair v. E.J.
Brach & Sons, Inc., 105 F.3d 343, 347 (7th Cir. 1997). To do so,
she must show that: (1) she is a member of a protected class,
(2) her job performance met WDOT’s legitimate expecta-
tions, (3) she suffered an adverse employment action, and
(4) another similarly situated individual who was not in the
protected class was treated more favorably than the plain-
tiff. See id.If the plaintiff establishes a prima facie case, a presump-
tion of discrimination is raised, and the burden shifts to
the employer to proffer a legitimate, nondiscriminatory
reason for its action. Id. (“At this stage, the reason need only
be facially nondiscriminatory.”). If the employer meets this
burden, the burden shifts back to the plaintiff
to demonstrate that the employer’s proffered reason is
pretextual. See Scaife v. Cook County, 446 F.3d 735, 739-40
(7th Cir. 2006).
1. Prima Facie Case
In this case, it is not disputed that Ms. Burks is a member
of a protected class or that she suffered an adverse em-
ployment action when she was terminated. We therefore
shall discuss only the two remaining prongs.
3
(...continued)
decisionmaker.” (internal quotation marks omitted)). Ms. Burks
did not rely on the direct method of proof in the district court,
and arguments not made before the district court are waived on
appeal. See Perruquet v. Briley, 390 F.3d 505, 517 (7th Cir. 2004).
Even if we were to examine her claim under the “direct method,”
she offers no circumstantial evidence that would sustain the view
that racial animus was the reason for her termination.
No. 05-2950 9
a. similarly situated individuals treated more favor-
ably
Ms. Burks claims that she was treated differently than
three individuals whom she claims were similarly situated:
Cole, Ms. Traska and Watzke. In order for an individual
to be similarly situated to the plaintiff, the plaintiff must
show that the individual is “directly comparable to her in all
material respects.” Patterson v. Avery Dennison Corp., 281
F.3d 676, 680 (7th Cir. 2002). Factors relevant to this inquiry
include whether the employees reported to the same
supervisor, whether they were subject to the same standards
and whether they had comparable education, experience
and qualifications. Id.; see also Radue v. Kimberly-Clark Corp.,
219 F.3d 612, 617-18 (7th Cir. 2000).
Ms. Burks fails in her attempts to show that Ms. Traska
and Watzke are similarly situated because neither Ms.
Traska nor Watzke held the same position as Ms. Burks, nor
did they have similar job responsibilities. During Ms. Burks’
employment, Ms. Watzke was a receptionist, not a program
manager. As for Ms. Traska, she had some supervisory
responsibilities over Ms. Burks, including monitoring her
performance weekly during the last three months of Ms.
Burks’ employment with WDOT. We previously have stated
that, ordinarily, it will not be the case that a plaintiff is
similarly situated to another employee when the plaintiff is
subordinate to that employee. Cf. Patterson, 281 F.3d at 680.
Although Cole and Ms. Burks had similar job positions
and responsibilities, Ms. Burks has not demonstrated that
their job performance was similar. We have cautioned
that, in order to show that a coworker is similarly situ-
ated to a terminated employee, the employee must show
that the other coworker had a “comparable set of failings.”
Haywood, 323 F.3d at 530; see also Jones v. Union Pac. R.R. Co.,
10 No. 05-2950
302 F.3d 735, 745 (7th Cir. 2002) (holding that an employee
who claimed he was similarly situated to a coworker made
an “unsuitable comparison” because he was not disciplined
for the same reasons as the coworker). Ms. Burks asserts
that she and Cole took meeting notes in the same manner,
yet only she was reprimanded for her note-taking style.
However, Ms. Burks does not allege that Cole shared in her
other alleged shortcomings, such as failing to meet dead-
lines or to follow directions.4 Additionally, Ms. Burks puts
forth no evidence that Cole, Ms. Traska or Watzke had
performance reviews similar to Ms. Burks. Therefore, none
of the three had a “comparable set of failings,” Haywood, 323
F.3d at 530, and thus none of the three were similarly
situated.
b. work performance met legitimate expectations
The defendants point to several pieces of evidence
demonstrating that Ms. Burks’ performance was unsatisfac-
tory. Both Ms. Traska and Ms. Forlenza stated that
Ms. Burks had a poor attitude, tended to blame others for
her mistakes and failed to take the necessary steps to
complete her assignments in a timely and accurate manner.5
4
As we discuss infra at 15-17, Ms. Burks has not come forward
with evidence that these noted differences were pretextual.
5
When the defendants went through the contents of Ms. Burks’
desk after she departed, they found paperwork she claimed never
to have received, documents that were months old, and numer-
ous projects that either had not been processed or needed
additional work. See R.8 at 10. Because the defendants were not
aware of the contents of Ms. Burks’ desk prior to the termination
of her employment, we cannot consider such evidence as
indicative of whether the defendants believed that Ms. Burks was
(continued...)
No. 05-2950 11
According to the defendants, they also received several
complaints from local officials regarding Ms. Burks’ failure
to return their messages regarding LRIP projects. See R.9,
Ex.G at 3. Additionally, after Ms. Burks’ six-month evalua-
tion, her work was supervised on a weekly basis by Ms.
Traska. The defendants have submitted the detailed log of
this weekly supervision, outlining situations in which Ms.
Burks did not follow proper procedures, failed to complete
projects accurately and missed deadlines. See R.28, Ex.C.
Despite this evidence, Ms. Burks asserts that she has put
forward sufficient evidence to create at least a factual
dispute regarding the adequacy of her work performance.
For example, Ms. Burks submitted affidavits from Brigham-
Abrouq and Cole, who both indicated that, in their opin-
ions, Ms. Burks was performing well in her job and was
learning the necessary skills at an acceptable rate. See R.17;
R.18. However, we have indicated previously that “general
statements of co-workers, indicating that a plaintiff’s job
performance was satisfactory, are insufficient to create a
material issue of fact as to whether a plaintiff was meeting
her employer’s legitimate employment expectations at the
time she was terminated.” Peele v. Country Mut. Ins. Co., 288
F.3d 319, 329 (7th Cir. 2002); see also Anderson v. Baxter
Healthcare Corp., 13 F.3d 1120, 1125 (7th Cir. 1994) (same). In
fact, our case law consistently states that the affidavits of
coworkers do not establish a material issue of fact on the
5
(...continued)
meeting their expectations at that time. However, the inventory
of her desk does corroborate their estimation of her work
performance.
12 No. 05-2950
issue of adequacy of performance.6 See Herron v.
DaimlerChrysler Corp., 388 F.3d 293, 300 (7th Cir. 2004)
6
In Dey v. Colt Construction and Development Co., 28 F.3d 1446,
1460 (7th Cir. 1994), we held that coworker testimony created a
triable issue of fact in the similar context of pretext. Although
we stated that “general averments of adequate performance
are insufficient to create a factual issue on summary judgment
even when corroborated by statements of supervisors or cowork-
ers,” we also stated that “a plaintiff may create a triable issue of
fact by specifically refuting facts that allegedly support the
employer’s claim of performance deficiencies.” Id. In Dey, the
plaintiff’s coworkers corroborated that specific events, cited by the
employer as reasons for her termination, had not occurred. This
type of corroboration helped create, we held, a triable issue of
fact. Id. at 1461.
Ms. Burks simply has not offered this type of specific evidence
here. Cole’s affidavit does not challenge the veracity of facts or
events on which WDOT’s assessment of Ms. Burks’ performance
was based. Cole, in her affidavit, states generally that Ms. Burks’
work was “extremely satisfactory” and that she “was motivated
and seemed to be a hard worker.” R.17 at 5. Such statements,
however, do not establish that Ms. Burks was meeting her
employer’s legitimate expectations—only that Cole did not
perceive a problem.
Brigham-Abrouq’s affidavit is similarly deficient in demon-
strating that Ms. Burks was not meeting her employer’s legiti-
mate expectations. Brigham-Abrouq states that Ms. Burks
made less mistakes in entering data into the computer than
Ms. Traska, see R.18 at 2; however, mistakes in entering data was
not one of the stated reasons for Ms. Burks’ termination. Cole and
Brigham-Abrouq also both opine that Ms. Traska and
Ms. Forlenza were “setting Burks up to fail,” R.18 at 6, R.17 at 7;
however, these conclusory opinions, unsupported by specific
facts, are insufficient to create a genuine issue of triable fact.
No. 05-2950 13
(noting “that plaintiff’s coworkers ‘may have thought that
[she] did a good job . . . is close to irrelevant’ ” (quoting
DeJarnette v. Corning Inc., 133 F.3d 293, 299 (4th Cir. 1998)));
Anderson, 13 F.3d at 1125 (“The mere submission of materi-
als from a coworker or supervisor indicating that an em-
ployee’s performance is satisfactory . . . because he was not
entirely responsible for several admitted mishaps, does not
create a material issue of fact.”); Kephart v. Inst. of Gas Tech.,
630 F.2d 1217, 1223 (7th Cir. 1980) (per curiam) (stating that
a plaintiff who offers the opinions from some of his cowork-
ers that “his work was good” does not “impeach the
legitimacy of his employer’s expectations”).
Ms. Burks also points to her positive three-month evalua-
tion as evidence that she was meeting her employer’s
expectations. Although Ms. Burks may have been perform-
ing adequately at the time of her positive evaluation, the
critical inquiry is her “performance at the time of [her
termination].” Moser v. Indiana Dep’t of Corr., 406 F.3d 895,
901 (7th Cir. 2005) (emphasis in original) (holding that prior
positive evaluations did not demonstrate that the employee
was performing adequately at the time of her adverse
employment action). Therefore, although prior evaluations
can be relevant in some circumstances, they “cannot, by
themselves, demonstrate the adequacy of performance at
the crucial time when the employment action is taken.”
Fortier v. Ameritech Mobile Communications, Inc., 161 F.3d
1106, 1113 (7th Cir. 1998).
Finally, Ms. Burks submits that a document that she has
described as the “LRIP Process Summary” shows that she
was completing her assignments in a timely fashion. See
Appellant’s Br. at 32. Specifically, she points to a document
entitled “LRIP Application Process Progress, as of
04/19/02,” which states that she had completed 97.8% of
14 No. 05-2950
“Entitlement” applications, that Cole had completed
103.16% of “Entitlement” applications and that Ms. Traska
had completed 1.52% of the “Discretionary” applications.
R.16, Ex.B at 4. Neither party has explained adequately
the significance of this document; Ms. Burks’ counsel
stated at oral argument that it was simply a “subjective”
computer printout from the LRIP program. It is still unclear,
however, exactly what the percentage is measuring or how
the computer program calculated the percentage. Even
assuming this document accurately shows that Ms. Burks
completed work on 97.8% of her assigned applications, it
does not state that Ms. Burks completed these assignments
on time. Nor does it show that she followed directions and
completed the applications accurately—two performance
deficiencies cited by WDOT in her termination letter.
Additionally, this table does not refute the three other
reasons why WDOT found Ms. Burks performance to be
lacking: failure to follow up and effectively communicate
with local officials, lack of initiative in performing job
duties, and failure to take personal responsibility for
effectively completing work assignments. In sum, although
the document, and other evidence submitted by Ms. Burks,
may show competency and/or efficiency with respect to
certain aspects of her position, the evidence proffered does
not counter directly the performance deficiencies identified
by WDOT. Consequently, Ms. Burks’ evidence is not
sufficient to create a material issue of fact as to whether Ms.
Burks was meeting her employer’s legitimate expectations.
2. Pretext
Because Ms. Burks failed to establish a prima facie case of
race discrimination, it is unnecessary to reach the issue of
pretext. See, e.g., Haywood, 323 F.3d at 531. Nevertheless, for
No. 05-2950 15
the sake of completeness, we shall address briefly this
consideration.
The defendants have articulated several nondiscrimina-
tory reasons for terminating Ms. Burks: that she failed to
meet assigned deadlines; that she failed to follow up
effectively with local officials; that she did not follow
directions; that she lacked initiative; and that she did not
take personal responsibility for completing her work
assignments. Because such nondiscriminatory reasons have
been proffered, the burden of proof shifts to Ms. Burks to
establish that each of the defendants’ reasons is pretextual.7
7
Ms. Traska and Ms. Forlenza also submit that they are entitled
to an “inference of nondiscrimination” that their proffered
reasons were not pretextual because they were the same individ-
uals who hired Ms. Burks. Appellees’ Br. at 23. If they had
wanted to discriminate against her, the defendants claim, they
simply would not have hired her in the first place. See E.E.O.C. v.
Our Lady of Resurrection Med. Ctr., 77 F.3d 145, 152 (7th Cir. 1996)
(noting that, in the context of pretext, a medical center director
who had hired an individual was given a presumptive inference
of nondiscrimination when an adverse employment action was
taken against the employee because the director “could have
refused to hire [the employee] in the first place” if the director
had wished to discriminate against that individual). However,
Ms. Burks asserts that she only was hired because she had the
most points in a point-based hiring system, and the defendants
indicate that hiring was based, at least in part, on a points-based
system. See R.25 at 3. Arguably, therefore, there appears to be a
material issue of fact about whether Ms. Traska and Ms. Forlenza
had the discretion not to hire Ms. Burks given her point total and,
accordingly, should not be given the benefit of a presumption
that their termination of Ms. Burks was not pretextual. Because
we believe that the reason given for Ms. Burks’ termination was
(continued...)
16 No. 05-2950
Plair, 105 F.3d at 348. In order to be pretextual, the proffered
reasons must be a “lie”; we look to “whether the employer’s
reasons for its decision are honest and genuinely moti-
vated.” Id. at 348-49. We are not concerned with whether or
not the employer’s actions were “mistaken, ill considered or
foolish, so long as [the employer] honestly believed those
reasons.” Jordan v. Summers, 205 F.3d 337, 343 (7th Cir.
2000).
As we discussed earlier, Ms. Burks points to several pieces
of evidence to demonstrate that her job performance was
adequate.8 However, our pretext inquiry is not whether Ms.
Burks actually was meeting expectations. Rather, our
inquiry is whether Ms. Traska and Ms. Forlenza’s proffered
reason for terminating Ms. Burks— inadequate job perfor-
mance—was a lie to cover up a true motivation of racial
animus. An employee’s attempt to avoid summary judg-
ment cannot succeed unless the employee puts forth
evidence suggesting that the employer itself did not believe
the proffered reasons for termination. See Adreani v. First
Colonial Bankshares Corp., 154 F.3d 389, 397 (7th Cir. 1998).
Ms. Burks has put forth no such evidence. In fact, the
evidence in the record, including Ms. Burks’ performance
7
(...continued)
not pretextual, we need not resolve this question.
8
As noted above, Ms. Burks’ proffered evidence included
coworker affidavits. Although Ms. Burks’ coworkers thought that
Ms. Burks’ performance was satisfactory, WDOT supervisors
were not required to concur in that assessment. See, e.g., Kephart
v. Inst. of Gas Tech., 630 F.2d 1217, 1223 (7th Cir. 1980) (“Plaintiff
does not raise a material issue of fact on the question of the
quality of work merely by challenging the judgment of
his supervisors.”).
No. 05-2950 17
reviews and weekly progress reports completed by Ms.
Traska, are consistent with the stated reasons for her
termination. Without setting forth specific evidence demon-
strating that the defendants’ proffered reason was a lie, Ms.
Burks cannot show pretext, and thus her case cannot survive
summary judgment on this claim.
B. Discrimination Based on Disability
In order to prevail on a claim of discrimination under the
Rehabilitation Act, a plaintiff must demonstrate that: (1) she
is disabled as defined by the Act; (2) she is otherwise
qualified for the position sought; (3) she has been excluded
from the position solely because of her disability; and (4) the
position exists as part of a program or activity receiving
federal financial assistance. See Knapp v. Northwestern Univ.,
101 F.3d 473, 478 (7th Cir. 1996). The parties do not dispute
that the fourth prong is satisfied, as the WDOT receives
federal funding.
Ms. Burks submits that she has a qualifying disability
because she is hearing and sight impaired and because
she has difficulty sitting or standing for extended periods of
time and sleeping through the night. Under the Rehabilita-
tion Act, a person is disabled if she has “a physical or
mental impairment which substantially limits one or more
of such person’s major life activities.” 29 U.S.C.
§ 705(20)(B)(i).9 Under the United States Department of
9
The Rehabilitation Act also protects individuals who are
“regarded as having such an impairment.” 29 U.S.C.
§ 705(20)(B)(iii). Even if Ms. Burks was not actually disabled
under the meaning of the Rehabilitation Act, she still could be
(continued...)
18 No. 05-2950
Transportation regulations,10 a “physical impairment”
includes “any physiological disorder or condition, cosmetic
disfigurement, or anatomical loss affecting one or more
of the following body systems: neurological; musculo-
skeletal; special sense organs . . . .” 49 C.F.R. § 27.5(2)(a)(i).
The regulations also state that “[m]ajor life activities”
include “caring for one’s self, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and
working.” Id. § 27.5(2)(b).
The defendants do not dispute that seeing, hearing,
sitting, sleeping and standing are “major life activities.”
However, they do claim that Ms. Burks’ condition did not
“substantially impair[]” any major life activities. Appellees’
Br. at 26. The regulations do not contain any definition of
“substantially impair.” Therefore, we must look to case law
9
(...continued)
covered by the Act if the defendants regarded her as having an
impairment that substantially limited a life activity. However,
Ms. Burks never has argued that the defendants “regarded”
her as having such an impairment. Id.
10
The Rehabilitation Act directs each federal agency distributing
financial assistance to entities to “promulgate such regulations as
may be necessary to carry out” various sections of the Act. 29
U.S.C. § 794(a). In this case, the record does not state from
which federal agency the Wisconsin Department of Transporta-
tion received federal funding. We shall assume that the fund-
ing came from the United States Department of Transporta-
tion. Even if we are incorrect, it does not impact our analysis
because the regulations defining disability under the Rehabilita-
tion Act are identical for all federal agencies. See Fitzpatrick v. City
of Atlanta, 2 F.3d 1112, 1125 n.16 (11th Cir. 1993) (citing regula-
tions).
No. 05-2950 19
to determine the meaning of the phrase as found in the
Rehabilitation Act.
In Toyota Motor Manufacturing, Kentucky, Inc. v. Williams,
534 U.S. 184 (2002), the Supreme Court held that, under the
Americans with Disabilities Act (“ADA”), “to be substan-
tially limited in performing manual tasks, an individual
must have an impairment that prevents or severely restricts
the individual from doing activities that are of central
importance to most people’s daily lives.” Id. at 198 (empha-
sis added). The Williams definition has been applied to
major life activities other than manual tasks.11 Additionally,
although Williams examines the definition of “substantially
limits” in the context of an ADA claim, the Williams defini-
tion also has been applied to claims under the Rehabilitation
Act.12 See Scheerer v. Potter, 443 F.3d 916, 918-19 (7th Cir.
2006). Therefore, we must determine whether Ms. Burks’
impairment “prevents or severely restricts” her from
engaging in important life activities.
11
See, e.g., Scheerer v. Potter, 443 F.3d 916, 918-19 (7th Cir. 2006)
(applying the Williams standard to the life activity of walking);
Nuzum v. Ozark Auto. Distrib., 432 F.3d 839, 845 (8th Cir. 2005)
(applying the Williams test to “basic motor functions” such as
sitting, standing and walking); Fenney v. Dakota, Minnesota &
Eastern R.R. Co., 327 F.3d 707, 715 (8th Cir. 2003) (applying the
Williams standard “no matter the specific class of major
life activity one is claiming”).
12
We also have noted that the prima facie case for discrimination
is the same under the ADA and the Rehabilitation Act. See Jackson
v. City of Chicago, 414 F.3d 806, 810 n.2 (7th Cir. 2005) (noting that
the only difference between the two claims is that federal funding
must be shown in a Rehabilitation Act case). Therefore, we can
look to ADA case law to determine whether a Rehabilitation Act
plaintiff has established her prima facie burden. Scheerer, 443 F.3d
at 919.
20 No. 05-2950
First, we turn to Ms. Burks’ contention that she cannot
sit or stand for long periods of time. Ms. Burks does not
offer a detailed explanation of her impairment, other than
to state that she “cannot sit for more than one to three hours
at a time.” See R.2 at 4. Ms. Burks has not explained her
symptoms, nor has she tendered any medical records in
support of her claim. On summary judgment, the burden is
on the plaintiff to come forward with evidence that
she is disabled for purposes of the Act. See Stein v. Ashcroft,
284 F.3d 721, 727 (7th Cir. 2002). Indeed, we have stated that
“[b]ald and self-serving assertions in affidavits, unsubstanti-
ated by any documentation or other testimony, are not
sufficient to create a material issue of fact as to whether an
impairment has substantially limited a major life activity.”
Id. at 726. Based on the limited amount of evidence in the
record, we cannot conclude that Ms. Burks’ impairment
“prevents or severely restricts” her ability to sit or stand.
Williams, 534 U.S. at 198. According to a copy of the ergo-
nomic workstation assessment in the record, Ms. Burks’
health care provider informed WDOT that Ms. Burks can
work an eight-hour day and that she should not sit for more
than three hours at a time. See R.10, Ex.D at 7. We see no
basis for concluding from this evidence that Ms. Burks’
condition “prevent[s] or severely restrict[s]” her from sitting
or standing.13 Ms. Burks has not submitted sufficient
evidence to create a material issue of fact on the issue of
“substantial limitation.” Such vague claims of difficulty
standing or sitting for “extended periods of time” were
13
Cf. Scheerer, 443 F.3d at 920 (stating that a plaintiff who had
diabetic foot ulcers that caused him to “rel[y] on a cumber-
some protective boot” and who experienced “intermittent
episodes of significant neuropathy” still generally was able
to walk and stand, and thus was not substantially limited).
No. 05-2950 21
found not to create a material issue of fact by the Eleventh
Circuit because the impairments were “couched in vague
terms and unaccompanied by any evidence that the de-
scribed afflictions were any worse than is suffered by many
adults.” Rossbach v. City of Miami, 371 F.3d 1354, 1358-59
(11th Cir. 2004) (also stating that someone who walks, sits,
stands or sleeps moderately below average is not disabled);
see also Colwell v. Suffolk County Police Dep’t, 158 F.3d 635,
644 (2d Cir. 1998) (holding that a plaintiff who stated that he
had trouble sitting “for too long” was not substantially
limited in his ability to sit).
Similarly, Ms. Burks has not demonstrated that she is
substantially limited in the major life activity of sleeping.
She stated that she has difficulty sleeping for more than
three hours at a time, but provided no medical records
or other evidence to demonstrate the effect of this situation
on her ability to function in daily life. We have held
that only “prolonged, severe and long-term sleep difficulties
[] can amount to a substantial limitation in the major life
activity of sleeping.” Scheerer, 443 F.3d at 920 (holding that
“intermittent disrupted sleep” is not a substantial limita-
tion); see also Rossbach, 371 F.3d at 1359 (holding
that plaintiffs who claimed they could not sleep normally
and could not get “a solid night’s sleep” were not substan-
tially limited from sleeping); Colwell, 158 F.3d at 644 (hold-
ing that a plaintiff, who stated that he “usually get[s] a
tough night’s sleep,” was not substantially limited in the
activity of sleeping, because “[d]ifficulty sleeping is ex-
tremely widespread” and because the plaintiff had made no
showing that his difficulties were any worse than difficulties
suffered by a large number of adults).
Ms. Burks also claims that her sight and hearing are
impaired. She offers no further description of her condition,
other than to state that she is “unable to see in bright light”
22 No. 05-2950
and that she has “hearing loss” that requires an amplified
telephone. R.16 at 2. We have emphasized consistently that
the determination of whether an individual is substantially
limited by her impairments “must be individualized.”
Branham v. Snow, 392 F.3d 896, 903 (7th Cir. 2004). Accord-
ingly, we must examine the particular effect of an impair-
ment on an individual. A sight impairment, for example,
does not necessarily substantially limit a major life activity
of an individual. See Sutton v. United Air Lines, Inc., 527 U.S.
471, 488-89 (1999) (noting that severe myopia did not
substantially limit the plaintiffs in any major life activity).
Ms. Burks has put forth no evidence, other than her need for
an amplified telephone or reduced lighting, to substantiate
her claim that her sight and hearing impairments prevent or
severely restrict her ability to see or hear. Merely alleging a
sight impairment is not enough; in Dyke v. O’Neal Steel, 327
F.3d 628, 632 (7th Cir. 2003), we held that an individual who
only had one eye was not substantially limited because the
only limitation on his ability to see was that he could not
drive at night nor hold his head straight when looking left
to right. Because Ms. Burks has submitted very scant
evidence as to how her impairments affect her major life
activities of sight and hearing, we cannot conclude that
there remains a material issue of fact as to whether she is
substantially limited by her impairments.
No material issue of fact remains as to whether Ms. Burks
is “disabled” under the Rehabilitation Act, and, therefore,
we need go no further in our analysis. The district court
properly granted summary judgment to the defendants on
Ms. Burks’ claim of a violation of the Rehabilitation Act.14
14
Because we hold that Ms. Burks’ disability is a threshold issue,
(continued...)
No. 05-2950 23
C. Retaliation
Ms. Burks claims that the defendants retaliated against
her after she complained of race and disability discrimina-
tion in violation of both Title VII, 42 U.S.C. § 2000e-2(a), and
the Rehabilitation Act, 29 U.S.C. § 794.15 She submits that
she did not receive negative performance reviews until after
she began complaining about discrimination and that she
ultimately was fired because she spoke out about her
discriminatory treatment.
A plaintiff can show retaliation either through direct or
indirect evidence.16 Under the direct approach, a plaintiff
must present evidence of: (1) a statutorily protected activity;
(2) an adverse action; and (3) a causal connection between
14
(...continued)
we need not address whether she is otherwise qualified for the
position sought. Nor need we inquire as to whether she was
excluded from the position solely because of a disability.
15
In her appellate brief, Ms. Burks also states that she was
retaliated against in violation of her right to free speech as
protected by the First Amendment, made applicable to the states
by the Fourteenth Amendment. She made no such argument in
her complaint. Instead, she only alleged that she was retaliated
against in violation of the Rehabilitation Act and Title VII. She
did raise such an argument in her response to defendants’ motion
for summary judgment, and the defendants correctly argued that
the claim could be disregarded because Ms. Burks did not plead
such a claim, nor did she amend her complaint to include it.
Therefore, we shall not address the First Amendment claim.
16
We have noted that the provision of Title VII concerning
retaliation is “materially identical” to the retaliation provision of
the Rehabilitation Act. See Twisdale v. Snow, 325 F.3d 950, 952 (7th
Cir. 2003). Therefore, the framework for our analysis is the same
under either statute.
24 No. 05-2950
the two. See Haywood, 323 F.3d at 531, as modified by
Burlington Northern Santa Fe Ry. v. White, 126 S. Ct. 2405,
2413 (2006). Ms. Burks appears to have established the first
two prongs: A complaint about race and disability discrimi-
nation to supervisors is protected activity, see, e.g., Racicot v.
Wal-Mart Stores, Inc., 414 F.3d 675, 678 (7th Cir. 2005), and
termination is certainly an adverse action, see Haywood, 323
F.3d at 531-32.
Ms. Burks has not put forth any direct evidence of a causal
link between her complaints of discrimination, her negative
job reviews and her ultimate termination. Instead, she relies
on the timing of her complaints as circumstantial evidence
of retaliation. See Appellant’s Br. at 41. She contends that
she first complained of race and disability discrimination in
March 2002, after her first positive three-month review.
After that complaint, Ms. Burks points out, she received her
six-month review which was, in contrast to the three-month
review, negative. She continued to complain and receive
negative feedback until she ultimately was terminated. Ms.
Burks therefore contends that, because her complaints, her
negative reviews and termination occurred after her
favorable review, a permissible inference is that her com-
plaints of discrimination were the cause of the negative
reviews and termination.17 However, we have stated that
17
Ms. Burks relies on Lang v. Illinois Department of Children and
Family Services, 361 F.3d 416 (7th Cir. 2004), to support her
contention that timing alone can demonstrate a causal link.
However, in Lang, the employee had worked for the employer for
five years and, in that time, the employee’s performance never
was criticized. Id. at 420. Criticisms of the plaintiff’s job perfor-
mance, along with disciplinary action against the plaintiff, did
not begin until the same month in which he complained about
racial discrimination, which we noted was “extremely suspi-
(continued...)
No. 05-2950 25
“[s]peculation based on suspicious timing alone . . . does not
support a reasonable inference of retaliation.” Sauzek v.
Exxon Coal USA, Inc., 202 F.3d 913, 918 (7th Cir. 2000).
Indeed, “[t]he mere fact that one event preceded another
does nothing to prove that the first event caused the
second”; the plaintiff also must put forth other evidence that
reasonably suggests that her protected speech activities
were related to her employer’s discrimination and termina-
tion. Id.; see also Oest v. Illinois Dep’t of Corr., 240 F.3d 605,
616 (7th Cir. 2001). Ms. Burks presents no evidence of a
retaliatory motive other than the timing of her termination.
Therefore, she has not met her burden under the direct
method of proof.
Ms. Burks’ retaliation claim also fails under the indirect
approach. Under such an approach, Ms. Burks first must
establish a prima facie case of retaliation by offering
evidence of the following: (1) that she engaged in protected
activity; (2) that she was subject to an adverse employ-
ment action; (3) that she was performing her job satisfacto-
rily; and (4) that no similarly situated employee who did not
engage in protected activity suffered an adverse employ-
ment action. See Stone v. City of Indianapolis Pub. Utils. Div.,
281 F.3d 640, 644 (7th Cir. 2002). As we have discussed
above, Ms. Burks has not established that she was perform-
17
(...continued)
cious” timing. Id. In the present case, Ms. Burks only had been
working at WDOT for less than a year and was in a probationary
period during her entire employment. She does not have the
years of positive reviews that made the discipline in Lang so
suspicious.
26 No. 05-2950
ing her job satisfactorily.18 Moreover, she points to no
similarly situated individuals who did not engage in
protected speech activity. Therefore, defendants properly
were awarded summary judgment.
D. Deprivation of Right to Jury Trial and Right to Due
Process
On appeal, Ms. Burks submits that, in granting sum-
mary judgment to the defendants, the district court failed to
view all of the evidence in the light most favorable to her. In
doing so, it violated her right to due process and to the
determination of facts by a jury under the Seventh Amend-
ment. On appeal, we have examined the record in the light
most favorable to Ms. Burks, and, therefore, the premise of
her argument cannot stand.
To the degree that she is arguing that, as a principle of
law, summary judgment cannot be squared with the
Constitution, we previously have rejected arguments that
summary judgment violates either the Fifth or Seventh
Amendments. See Koski v. Standex Int’l Corp., 307 F.3d 672,
676 (7th Cir. 2002). As for the Fifth Amendment, we
stated that “[t]he Supreme Court has made it abundantly
clear that summary judgment has a proper role to play in
civil cases,” and thus granting summary judgment does not
violate a plaintiff’s right to due process. Id. We also have
stated that summary judgment and Federal Rule of Civil
Procedure 56 do not violate the Seventh Amendment, as
“this argument . . . flies in the face of firmly established
law.” Id. (citing Fid. & Deposit Co. of Maryland v. United
18
See supra at 11-13 (discussing Ms. Burks’ failure to meet her
employer’s legitimate expectations).
No. 05-2950 27
States, 187 U.S. 315, 320 (1902)). The Seventh Amendment
does not entitle parties to a jury trial when there are no
factual issues for a jury to resolve. See id.Accordingly, the disposition of Ms. Burks’ case on a
motion for summary judgment did not deprive her of her
Fifth or Seventh Amendment rights.
Conclusion
For the reasons set forth in this opinion, the judgment of
the district court is affirmed.
AFFIRMED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-29-06