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.