Hancock, Teresa v. Potter, John E.

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-1589
TERESA HANCOCK,
Plaintiff-Appellant,
v.
JOHN E. POTTER, Postmaster General
of the United States Postal Service,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Western Division.
No. 02 C 50388—Philip G. Reinhard, Judge.
____________
ARGUED APRIL 3, 2008—DECIDED JUNE 24, 2008
____________
Before FLAUM, MANION, and TINDER, Circuit Judges.
FLAUM, Circuit Judge. Theresa Hancock worked for
the U.S. Postal Service and suffered a lumbar strain
while on the job. After going through a series of examina-
tions designed to assess her ability to perform certain
physical tasks on the job, she was given a new set of duties.
She had disagreements with her supervisors regarding
whether her new tasks ran afoul of her physical restric-
tions. These disagreements ultimately formed the basis
of her complaint in the district court alleging gender
discrimination, disability discrimination, retaliation, and
a hostile work environment. The district court dismissed
2 No. 07-1589
Hancock’s claims on summary judgment in large part
because she did not suffer an adverse employment action
and she could not identify a similarly situated employee.
Because we find no error in the district court’s analysis,
we affirm.
I. Background
From 1992 to 2001, Hancock was employed with the
U.S. Postal Service in Rockford, Illinois as a “flat sorter.”
The job involved utilizing and maintaining a flat
sorting machine that would organize and separate pieces
of mail larger than letter-size, such as magazines, newspa-
pers, and manila envelopes. The first several years of
her employment with the Postal Service were uneventful,
save for an award she received early on for discharging
her duties in a safe manner.
Hancock’s troubles began in March 1998, when she
filed a grievance alleging that her supervisor, Leon Woods,
yelled at her and was disrespectful towards her. A month
later, this grievance was settled. Then, on June 18, 1999,
Hancock suffered a job-related back injury, namely a
lumbar strain. This injury limited her ability to bend,
stoop, and twist. Consistent with Department of Labor
requirements, she was given a limited duty job assign-
ment that modified the nature of her work. Soon after
working this modified job, she told a supervisor that it did
not comport with restrictions set out in her limited duty
assignment.1 Supervisors examined her restrictions and
disagreed; they told her to keep working. In response,
1
These restrictions were as follows: lifting and carrying limited
to 50 pounds, twisting limited to no more than 12 tubs per
15 minutes, and no pushing greater than 475 pounds.
No. 07-1589 3
Hancock asked for a union representative, and was
given one within four hours. She utilized the union assis-
tance to document her injury, but she did not request
medical treatment.
Hancock then made an appointment to see her own
physician. At the same time, the Postal Service had her
attend a fitness-for-duty examination to determine her
ability to work, and to clarify the extent of her restric-
tions. The Postal Service physician completed a new
duty status report which delineated Hancock’s restric-
tions. She was given a corresponding new job offer that
involved working on a different piece of equipment—the
meter belt. Hancock refused to accept the new assign-
ment on the grounds that, in her view, it would trigger
her injury. The Postal Service physician assessed the
information a second time and confirmed that she
could perform this new job in a manner that was con-
sistent with her restrictions. But Hancock still refused.
She then received a note from her personal physician
excusing her from work for a few days until he had the
chance to examine her. When she returned to work, she
came with a note from her physician directing that she
not work the meter belt. Because her injury had worsened
since June, she was given a new, more stringent set
of restrictions that also called for her to refrain from
working on the meter belt. As a result, Hancock was
given a job offer for a different shift, because there as no
work available on her shift that also met her restrictions.2
2
Postal Service Regulations require that if adequate duties are
not available within the employee’s work limitation toler-
ances, in the craft and work facility to which the employee
is regularly assigned, and within her regular house of duty,
other work may be assigned within the facility.
4 No. 07-1589
While she was on her restrictions, Hancock requested to
work in an area known as the Registry Cage. This is a
secure section on the workroom floor where a single
employee works. Her request was denied for two reasons.
First, the Postal Service determined that additional
staffing for this position was only needed on Hancock’s
regular day off. Second, despite Hancock’s contrary be-
lief, the Postal Service concluded that the work require-
ments of the Registry Cage were outside her restrictions.
For instance, the duties included lifting up to 70 pound
bags of coin, which was clearly beyond Hancock’s restric-
tions.
Hancock also wanted to participate in the Associate
Supervisor Program (a management trainee program) but
was ultimately denied. This was due, in large measure,
to an unfavorable evaluation issued by the Manager of
Distribution Operations, Linda Medearis, on August 4,
1999. Hancock claims that she received this negative
evaluation because she had filed grievances and had
complained about management and her supervisors.
Critically, none of these grievances was the subject of an
Equal Employment Opportunity (“EEO”) complaint
that took place prior to August 4, 1999. Indeed, Medearis
claims that she did not select Hancock for the program
because a number of co-workers had indicated that she
was not doing her job. This is consistent with prior events:
Medearis also did not recommend Hancock for this
program in the March 1999 cycle, before the injury and
accompanying work restrictions, and before she started
filing administrative complaints.
Contemporaneous with these events, Hancock filed an
injury compensation claim with the Office of Workers
Compensation (“OWCP”). All of the documentation
No. 07-1589 5
received by the Postal Service Injury Compensation
Specialist concerning Hancock’s injury was forwarded
to OWCP. Then, on October 18, 1999, OWCP notified
Hancock that her claim was denied due to insufficient
medical documentation.3 She was subsequently reclassi-
fied from a “limited duty” status (which is for employees
who are injured on the job) to a “light duty” status (which
is for employees who are injured outside of their job
duties). This meant that her workload was reduced to
20 hours per week and that her availability to be assigned
beyond these hours depended on available work that
was within her restrictions. Later, on February 11, 2000,
OWCP reversed its decision because it located a treat-
ment note from Hancock’s physician. This took her from
light duty back to limited duty, which meant that her
full time work hours were restored.
From August 1999 to April 2000, Hancock filed several
complaints with the Equal Employment Opportunity
Commission (“EEOC”) alleging discrimination based
on sex, physical disability, age, and retaliation for prior
EEO activity. In the context of these complaints, she made
the following six claims: (1) her limited duty job restric-
tions were violated; (2) her request to be trained in the
Registry Cage was not honored in order to harass her and
deny her an accommodation for her disability; (3) she
was harassed and denied accommodations when pre-
sented with job offers; (4) her work hours were reduced;
3
The Federal Employees Compensation Act, 5 U.S.C. § 8101, et
seq., holds the employee responsible for: (1) establishing that
the injury occurred while on the job, (2) proving that the med-
ical condition is causally related to the injury, and (3) sub-
mitting a medical report from an attending physician.
6 No. 07-1589
(5) she was given an unfavorable evaluation for the Associ-
ate Supervisor Program; and (6) injury compensation
personnel withheld medical information in her worker’s
compensation cases. After exhausting her administrative
remedies, Hancock filed a complaint with the district
court consistent with this set of claims in October 2002.
Specifically, she alleged that the Postal Service discrimi-
nated against her on the basis of gender in violation of
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e,
et seq., on the basis of disability in violation of the Ameri-
cans with Disabilities Act (“ADA”),4 on the basis of age in
violation of the Age Discrimination in Employment Act
(“AEDA”), and that the Postal Service retaliated against
her for speaking out against a practice that Title VII
forbids. After an answer was filed, the Postal Service
moved for summary judgment on February 1, 2006. The
district court granted this motion in favor of the Postal
Service. This appeal followed.
II. Discussion
Hancock raises four issues before this Court. She argues
that the district court erred in denying her gender dis-
crimination, disability discrimination, retaliation, and
hostile work environment claims. We analyze each issue
in turn, bearing in mind that we review a district court’s
grant of summary judgment de novo and view the evi-
dence in the light most favorable to the appellant. Hoffman
v. MCA, Inc., 144 F.3d 1117, 1121 (7th Cir. 1998).
4
The term “employer” under the ADA specifically excludes
the United States and its agencies from its definition, 42 U.S.C.
§ 12111(5)(B), and so Hancock should have actually sued
under the Rehabilitation Act, 29 U.S.C. § 794.
No. 07-1589 7
Because Hancock did not provide any direct or circum-
stantial evidence of gender discrimination, in order to
make a colorable claim, she had to prove that (1) she was
a member of a protected class; (2) she was meeting her
employer’s legitimate business expectations; (3) she
suffered an adverse employment action; and (4) the
employer treated a similarly situated employee outside of
the class more favorably. Kampmier v. Emeritus Corp., 472
F.3d 930, 939 (7th Cir. 2007). Upon establishing these
elements, the burden shifts to the employer to produce
“evidence which, taken as true, would permit the con-
clusion that there was a nondiscriminatory reason for
the adverse action.” St. Mary’s Honor Center v. Hicks,
509 U.S. 502, 509 (1993). If the employer succeeds here,
then the burden shifts back to the employee to prove
that these reasons were merely a pretext for discrimina-
tion. E.E.O.C. v. Our Lady of the Resurrection Medical Center,
77 F.3d 145 (7th Cir. 1996).
Hancock’s gender discrimination claim fails at the
outset because she did not suffer an adverse employment
action and because she could not point to a single sim-
ilarly situated employee outside the class who was
treated more favorably. An adverse employment action is
one that significantly alters the terms and conditions of
the employee’s job. Griffin v. Potter, 356 F.3d 824, 829 (7th
Cir. 2004). General hostility, unless it was severe and
pervasive, does not meet the mark. Id. The action must be
more disruptive than a mere inconvenience or an altera-
tion of job responsibilities. Rabinovitz v. Pena, 89 F.3d 482,
488 (7th Cir. 1996). Given this framework, it is clear that
Hancock cannot meet her burden. Nearly all of the so-
called adverse employment actions that Hancock raises
were merely attempts by the Postal Service to ensure that
8 No. 07-1589
she provided it with work but did not work beyond
her personal restrictions. This is certainly true of her
supervisor’s decision to subject her to fitness-for-duty
examinations (which is required) and subsequent dis-
agreements regarding whether work on the meter belt
violated her restrictions. Also, Hancock protests that her
work hours were reduced, but this was simply due to the
fact that there was a lack of available work that fell
within her very limiting restrictions. We could exhaus-
tively critique each of Hancock’s complaints in this way,
but we need not do so because there is an even more clear-
cut flaw in her case: she has not provided this Court, or
the district court, with a single similarly situated em-
ployee. There is no evidence in the record that indicates
that Hancock’s supervisor acted differently when faced
with a disagreement from any other employee about
whether an assignment was within their restrictions, nor
is there evidence that Postal Service supervisors acted
differently when assessing what productive work was
available for Hancock. Hancock provides conclusory
affidavits from co-workers that state that other employees
were given better treatment, but not a single actual name
is provided. For all of these reasons, Hancock falls well
short of making her prima facie case of gender discrimina-
tion.
Hancock’s disability discrimination claim fares no
better, because she was not disabled as that term is defined
in the ADA. In order to establish her case here, Hancock
had to show that (1) she has a physical or mental im-
pairment which substantially limits one or more of her
major life activities; (2) she has a record of such impair-
ment; or (3) she is regarded as having such impairment
by her employer. Peters v. City of Mauston, 311 F.3d 835,
No. 07-1589 9
842 (7th Cir. 2002). What undermines Hancock’s claim here
is that she has not adduced any evidence that any of her
major life activities were affected by her injury. See 29
C.F.R. § 1630(i) (noting that caring for one’s self, perform-
ing manual tasks, seeing, walking, speaking, hearing,
breathing, leaning, and possibly working, are major life
activities). Hancock merely had a work-related back
injury that temporarily limited her ability to perform
certain job duties and short-term absences. But even if
Hancock could somehow establish that she was disabled
under the ADA, her claim would still fail on the grounds
that she cannot point to a single similarly situated em-
ployee outside the protected class who was treated more
favorably.
In order to prevail on her retaliation claim, Hancock had
to prove that the Postal Service took an adverse action
against her because she opposed a practice that Title VII
forbids. Kampmier, 472 F.3d at 939. Here, Medearis did
make written and oral comments in March and Au-
gust 1999 that one of the reasons she did not recom-
mend Hancock for the Associate Supervisor Program,
in addition to statements made by co-workers that she
was not doing her job, was the fact that she had “filed
grievances claiming harassment from [management].”
Hancock magnifies this comment and argues that within
one month of complaining about discriminatory treatment,
Medearis acted to deny her an appointment to the pro-
gram. This statement is not consistent with the facts.
Hancock did in fact complain to Medearis in August 1999
about the treatment she was receiving from her super-
visor Leon Woods, and Medearis did in fact give Hancock
a negative evaluation for the program later that month.
However, Medearis also gave Hancock a similarly
10 No. 07-1589
negative evaluation for the program five months earlier,
in March. This was before Hancock lodged any com-
plaints and, more importantly, before she engaged in any
EEO-related activity.5 Moreover, Medearis’s statements
did not mention that Hancock complained of discrimina-
tion—she generally referred to “grievances,” and her
statement was made in the context of describing Hancock’s
“very negative attitude” towards management.
Hancock’s only real response here is an attempt to
recharacterize her March 1998 grievance against her
supervisor (for raising his voice at her) as prior EEO
activity. She contends that it was this grievance that
formed the basis of Medearis’s negative evaluation. This re-
reading of the events in this case is not persuasive. First,
Hancock did not base any of her five EEO complaints
(starting in August 1999) on an allegation that this
March 1998 grievance was prior EEO activity for which
she was retaliated against. Second, and consistent with this
view, her district court complaint also only refers to prior
EEO activity in 1999. There is no mention of EEO activity
that occurred in 1998. Third, and most significantly,
Hancock filed this grievance because her supervisor
was “disrespectful towards her.” There was no evidence,
or even an allegation, that this disrespect was fueled by
a discriminatory animus.
In the alternative, Hancock tries to establish her claim
of retaliation by utilizing the burden-shifting approach
articulated above. She was required to show “that
(1) after lodging a complaint about discrimination,
5
Hancock began filing complaints with the EEOC in August
1999.
No. 07-1589 11
(2) only [she], and not otherwise similarly situated em-
ployees who did not complain, was (3) subjected to an
adverse employment action even though (4) [she] was
performing [her] job in a satisfactory manner.” Id. at 642.
Like her gender and disability discrimination claims,
Hancock’s attempt to make out a prima facie case falls
short because she has not identified a similarly situ-
ated non-complaining employee, much less presented
convincing evidence that such an employee was treated
more favorably.
As a part of her hostile work environment claim, Han-
cock had to demonstrate that the conduct complained
of was “sufficiently severe or pervasive to alter the condi-
tions of employment and create an abusive working
environment.” Ezell v. Potter, 400 F.3d 1041, 1047 (7th Cir.
2005). In Hancock’s case, she had to show that she
was subjected to unwelcome harassment based upon
either her gender or disability. Beamon v. Marshall & Isley
Trust Co., 411 F.3d 854, 863 (7th Cir. 2005). We decline
to reach the substance of Hancock’s hostile work environ-
ment claim because she never alleged such a claim in
her district court complaint. It was raised for the first time
in her opposition to the Postal Service’s motion for sum-
mary judgment, and so it is not properly before this
Court. See Shanahan v. City of Chicago, 82 F.3d 776, 781 (7th
Cir. 1996).
We acknowledge that plaintiff’s working environment
was not the most supportive. Her supervisor criticized
her, she complained, and her manager viewed her as an
employee who, among other things, was not a “team
player.” However, at every step of the way, Hancock
was not able to shore up any bit of evidence that indi-
cated that she was discriminated against on the basis of
12 No. 07-1589
her gender or disability or that she was retaliated against
because she complained of discrimination. She was
injured and inconvenienced. She was treated somewhat
unkindly. But there is a significant gap between such
conduct, which was fundamentally personal, and discrimi-
nation.
III. Conclusion
For the foregoing reasons, we AFFIRM the district court’s
judgment.
USCA-02-C-0072—6-24-08