Hoffman, Shirley v. Caterpillar, Inc

In the

United States Court of Appeals

For the Seventh Circuit

No. 99-3023

Shirley Hoffman,

Plaintiff-Appellant,

v.

Caterpillar, Inc.,

Defendant-Appellee.

Appeal from the United States District Court

for the Central District of Illinois.

No. 98 C 1062--Joe B. McDade, Chief Judge.

Argued September 6, 2000--Decided July 3, 2001

Before Manion, Kanne, and Diane P. Wood,

Circuit Judges.

Kanne, Circuit Judge. Shirley Hoffman,

who was born without a left arm below the

elbow, brought suit alleging that

Caterpillar, Inc. unlawfully

discriminated against her by failing to

provide training on two machines in

violation of the Americans with

Disabilities Act (ADA), 42 U.S.C. sec.

12101 et seq./1 Hoffman alleged both

disparate treatment and failure to

accommodate claims with respect to the

first machine, the high speed scanner,

while she only alleged disparate

treatment with respect to the second, the

main console. Caterpillar moved for

summary judgment and the district court

granted the motion. For the reasons

stated herein, we affirm in part but

vacate the district court’s grant of

summary judgment for Caterpillar on

Hoffman’s disparate treatment claim with

respect to the high-speed scanner.

I. History

Hoffman began working for Caterpillar’s

Optical Services Department ("OSD") in

April 1996. The OSD provides digital

scanning services to all of Caterpillar’s

business units by scanning documents into

the computer and indexing them for future

reference. Hoffman’s primary job

responsibility is indexing--entering data

relating to a scanned image into the

computer. Her job also includes preparing

papers to be scanned, maintaining the

copy machine, running the flatbed scanner

(a low-speed scanner), and ordering

office supplies. Due to the fact that she

is missing her lower left arm, Hoffman

needs several accommodations to perform

her job, including a typing stand, poster

putty to raise the function key on her

computer, and a compound called tacky

finger to improve finger grip. It is also

sometimes necessary for Hoffman to have

the items in her work area rearranged.

Although Hoffman and Caterpillar dispute

the willingness with which Hoffman was

initially accommodated (she claims that

her repeated requests for accommodation

were ignored until she was forced to

bring in her own materials), it is clear

that she is now able to perform the

essential functions of her job.

Caterpillar concedes that, with the

exception of her first three weeks on the

job, Hoffman’s work has been average or

better and that she performs her indexing

job as fast or faster than a person with

two hands.

Although Hoffman already performs all of

the required functions of her job, she

has repeatedly expressed a desire to be

trained on two additional pieces of

equipment. First, Hoffman wishes to

operate the high-speed scanner, a

production machine that scans forty to

fifty pages per minute. Operation of the

high-speed scanner is a key position in

the OSD because the overall productivity

of the department depends on the speed at

which documents are scanned. OSD

employees in Hoffman’s position are not

required to run the high-speed scanner;

out of the twenty-one people in the

department as of March 1999, only seven

are completely trained to operate it.

Caterpillar contends that Hoffman’s lack

of training on the high-speed scanner

does not affect her compensation,

benefits, work hours, job title, or

ability to advance within the OSD.

Hoffman disagrees with Caterpillar’s

claim that the denial of training does

not affect her ability to advance; she

argues that she will be a more attractive

candidate for promotion if she is well-

trained. In addition, Hoffman maintains

that she should be trained, regardless of

whether it affects her ability to

advance, because every other employee who

has expressed an interest in operating

the high-speed scanner has received the

necessary training to do so.

Hoffman’s supervisor and the head of

the OSD, Lynn Cripe, admits that he

denied Hoffman training on the high-speed

scanner because she only has one hand. He

claims that her disability would prevent

her from being able to properly run the

high-speed scanner because two hands are

needed to clear paper jams and to

straighten documents as they exit the

machine. Paper jams occur frequently on

the high-speed scanner--sometimes four to

five times an hour--disrupting production

for anywhere from a few seconds to

fifteen minutes depending on the severity

of the jam. Cripe is concerned that

Hoffman would be unable to run the

machine, and even if she were able to

operate it, that she would be unable to

maintain an acceptable speed or clear the

frequent paper jams without assistance.

Although Cripe is not fully trained on

the high-speed scanner himself, his

observation of the machine leads him to

believe that Hoffman, even if able to

physically run the machine, would not be

able to keep up with the production

standards set for the department. Cripe

also believes that the configuration of

the high-speed scanner presents an

obstacle to Hoffman’s running of the

machine because the keyboard which

controls the scanner settings is located

on the left side of the machine--the side

on which Hoffman does not have a hand.

According to Cripe, the settings need to

be changed fairly quickly during scanning

and it would be difficult for Hoffman to

adjust the settings while continuing to

feed the paper with only one arm. Cripe’s

belief that Hoffman would be unable to

run the high-speed scanner was never

confirmed, however, because Hoffman was

never given a chance to try.

Hoffman also challenges Caterpillar’s

decision to deny her training on another

piece of equipment, the main console. The

main console is a computer that is used

to check the accuracy of data entered for

scanned documents. Caterpillar asserts

that Hoffman was denied training on the

main console, not because of her

disability, but because the main console

is operated by individuals in the

reviewer position and Hoffman is not

qualified for that position because she

lacks the necessary communication skills.

II. Analysis

A. Standard of Review

We review de novo the district court’s

grant of summary judgment, drawing our

own conclusions of law and fact from the

record before us. See Amadio v. Ford

Motor Co., 238 F.3d 919, 924 (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);

see also Celotex Corp. v. Catrett, 477

U.S. 317, 322-23, 106 S. Ct. 2548, 91 L.

Ed. 2d 265 (1986). In determining whether

there exists any genuine issue of

material fact, we must construe all facts

in the light most favorable to the non-

moving party and draw all reasonable and

justifiable inferences in favor of that

party. See Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 255, 106 S. Ct. 2505,

91 L. Ed. 2d 202 (1986).

B. Denial of Training on the High-Speed

Scanner

Hoffman claims that Caterpillar’s denial

of training on the high-speed scanner

violated the ADA. The ADA proscribes

discrimination 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). As a threshold

requirement, Hoffman must first establish

that she has a disability as defined by

the ADA. Disability is defined as "(A) a

physical or mental impairment that

substantially limits one or more of the

major life activities of such individual;

(B) a record of such an impairment; or

(C) being regarded as having such an

impairment." 42 U.S.C. sec. 12102(2). A

plaintiff must also demonstrate that she

is qualified for the position in

question. An individual is qualified if

she "satisfies the pre-requisites for the

position" and "can perform the essential

functions of the position held or

desired, with or without reasonable

accommodation." Bombard v. Fort Wayne

Newspapers, Inc., 92 F.3d 560, 563 (7th

Cir. 1996) (quoting 29 C.F.R. app. sec.

1630.2(m)).

Once a plaintiff has established that

she is a qualified individual with a

disability, she may show discrimination

in either of two ways: by presenting

evidence of disparate treatment or by

showing a failure to accommodate. See

Sieberns v. Wal-Mart Stores, Inc., 125

F.3d 1019, 1021-22 (7th Cir. 1997).

Disparate treatment claims arise from

language in the ADA prohibiting covered

entities from "limiting, segregating, or

classifying a job applicant or employee

in a way that adversely affects the

opportunities or status of such applicant

or employee," 42 U.S.C. sec. 12112(b)(1),

while failure to accommodate claims stem

from language in the ADA defining

discrimination in part as "not making

reasonable accommodations to the known

physical or mental limitations of an

otherwise qualified individual." 42

U.S.C. sec. 12112(b)(5)(A).

A disparate treatment claim under the

ADA is similar to disparate treatment

claims under Title VII, 42 U.S.C. sec.

2000e-2(a), and the ADEA, 29 U.S.C. sec.

623(a)(1) in that the plaintiff attempts

to show that she was treated differently

than other workers on the basis of a

protected characteristic. As with other

federal anti-discrimination statutes, an

ADA plaintiff may prove disparate

treatment either by presenting direct

evidence of discrimination, or she may

prove it indirectly using the McDonnell

Douglas burden-shifting method. See

McDonnell Douglas v. Green, 411 U.S. 792,

93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).

In order to prevail in the absence of

direct evidence, a plaintiff must first

make out a prima facie case by showing

that: (1) she is disabled within the

meaning of the ADA; (2) she was meeting

the legitimate employment expectations of

her employer; (3) she suffered an adverse

employment action; and (4) similarly

situated employees received more

favorable treatment. See Amadio v. Ford

Motor Co., 238 F.3d 919, 924 (7th Cir.

2001).

In failure to accommodate claims, unlike

disparate treatment claims, the McDonnell

Douglas burden-shifting approach is not

necessary or appropriate. See Weigel v.

Target Stores, 122 F.3d 461, 464 (7th

Cir. 1997). Instead, the plaintiff, in

addition to showing that she is a

qualified individual with a disability,

must show that the employer was aware of

her disability and still failed to

reasonably accommodate it. See Foster v.

Arthur Andersen, LLP, 168 F.3d 1029, 1032

(7th Cir. 1999). Reasonable

accommodations may include:

(A) making existing facilities used by

employees readily accessible to and

usable by individuals with disabilities;

and

(B) job restructuring, part-time or

modified work schedules, reassignment to

a vacant position, acquisition or

modification of equipment or devices,

appropriate adjustment or modifications

of examinations, training materials or

policies, the provision of qualified

readers or interpreters, and other

similar accommodations for individuals

with disabilities.

42 U.S.C. sec. 12111(9).

Hoffman claims that Caterpillar’s denial

of training on the high-speed scanner

constitutes both disparate treatment and

a failure to accommodate under the ADA.

Because Caterpillar does not challenge

Hoffman’s claim that she is a qualified

individual with a disability within the

meaning of the ADA, we turn first to

Hoffman’s disparate treatment claim.

1. Disparate Treatment

At the outset, we note that it is quite

clear that Caterpillar is not obligated

to train Hoffman on the high-speed

scanner if she is not capable of running

it. The ADA certainly does not require

employers to allow employees to use

equipment that they are unable to

operate. Nor does anything in the ADA

mandate that Caterpillar must tolerate a

drop in productivity in order to allow

Hoffman to run the high-speed scanner.

Usually, the question of an employee’s

ability to perform a specific task will

be decided at the outset of a disparate

treatment claim in the context of

determining whether the plaintiff is

"qualified" under the ADA. In situations

such as this one, however, where an

employee can clearly perform the

essential functions of the position but

alleges disparate treatment as to some

non-essential function, the employee’s

ability to perform the task in question

becomes relevant at this later stage.

Viewing the evidence in the light most

favorable to Hoffman, we find that there

is an issue of fact as to whether Hoffman

would be able to operate the high-speed

scanner. Because "Congress perceived that

employers were basing employment

decisions on unfounded stereotypes,"

Siefken v. Vill. of Arlington Heights, 65

F.3d 664, 666 (7th Cir. 1995), the ADA

discourages employment decisions "’based

on stereotypes and generalizations

associated with the individual’s

disability rather than on the

individual’s actual characteristics.’"

Holiday v. City of Chattanooga, 206 F.3d

637, 643 (6th Cir. 2000) (quoting EEOC v.

Prevo’s Family Mkt., Inc., 135 F.3d 1089,

1097 (6th Cir. 1998)). The ADA recognizes

that a non-disabled person’s instincts

about the capabilities of a disabled

person are often likely to be incorrect.

Therefore, a determination that two-

handed people use both of their hands to

operate the high-speed scanner, or even a

determination that most one-handed people

would be unable to run it, should not be

the end of an employer’s inquiry. In this

case, it seems doubtful that Cripe made

an individualized determination as to

whether Hoffman could operate the high-

speed scanner because he never gave her a

chance to try it. Caterpillar claims that

the primary reason that Hoffman lacks the

capability to run the high-speed scanner

is that she would be unable to

effectively clear the frequent paper jams

that occur. There is evidence in the

record, however, that Hoffman clears

paper jams from the copy machine without

assistance, and Caterpillar presents no

evidence to suggest that clearing paper

jams from the high-speed scanner is

somehow different. Nor does Caterpillar

counter Hoffman’s claim that she could

use her left arm in a manner similar to

a flat hand to hold down the paper as it

is being fed into the machine. Therefore,

drawing all inferences in favor of

Hoffman, we must assume that she is

physically capable of running the high-

speed scanner. Thus, we move on to the

substance of Hoffman’s disparate

treatment claim.

Hoffman’s supervisor, Cripe, admits that

he refused Hoffman’s requests for high-

speed scanner training because of her

disability. Notwithstanding this

admission, the district court granted

summary judgment for Caterpillar. The

court determined that because Hoffman

failed to show that the denial of

training affected her compensation,

benefits, hours worked, job title, or

ability to advance within Caterpillar,

she had not shown a materially adverse

employment action--one of the elements of

the prima facie case under McDonnell

Douglas. See Hoffman v. Caterpillar Inc.,

No. 98-1062 , slip op. at 7 (C.D. Ill.

July 12, 1999) (citing Spencer v. AT&T

Network Sys., No. 94 C 7788, 1998 WL

397843, at *5 (N.D. Ill. July 13, 1998)

(finding that denial of training was not

a materially adverse employment action

because plaintiff’s pay, hours, job

title, and quality of her

responsibilities were not significantly

affected); Needy v. Vill. of Woodridge,

No. 96 C 5188, 1997 WL 461093 at *6 (N.D.

Ill. Aug. 8 1997) ("[D]eprivations of

training opportunities do not constitute

an adverse employment action under Title

VII.")).

On appeal, Hoffman argues that, because

she has direct evidence of discriminatory

intent, the district court erred in

determining that she must proceed using

the McDonnell Douglas burden-shifting

approach. Direct evidence is evidence

which, if believed, "will prove the

particular fact in question without

reliance upon inference or presumption."

Plair v. E. J. Brach & Sons, Inc., 105

F.3d 343, 347 (7th Cir. 1997) (quotation

omitted). In the vast majority of

disparate treatment claims, the plaintiff

does not have direct evidence of

discrimination on the basis of some

protected characteristic. Our cases

establish that making out a prima facie

case using the McDonnell Douglas approach

is an alternative to showing direct

evidence of an employer’s discriminatory

intent. See, e.g., Beatty v. Wood, 204

F.3d 713, 717 (7th Cir. 2000). The

purpose of the McDonnell Douglas burden-

shifting approach is to allow a plaintiff

to raise an inference of discrimination

even in the absence of direct evidence.

See Lynch v. Belden & Co., 882 F.2d 262,

269 (7th Cir. 1989). It would be

redundant to require a plaintiff to

utilize the burden-shifting method to

raise a presumption of discrimination if

he or she possesses direct evidence of

discrimination. Our determination that

Hoffman need not use the McDonnell

Douglas approach does not necessarily

mean, however, that Hoffman need not show

that she has suffered a materially

adverse employment action. We must

consider whether demonstrating a

materially adverse employment action,

aside from being an element of the prima

facie case, is a separate substantive

requirement of a disparate treatment

claim under the ADA.

Caterpillar contends that it is clear

that an alleged denial of training must

materially affect an individual’s employ

ment for it to be actionable. However,

none of the authorities that Caterpillar

cites for the proposition that a denial

of training must be materially adverse,

see Shackelford v. Deloitte & Touche,

LLP, 190 F.3d 398, 407 (5th Cir. 1999);

Spencer v. AT&T Network Sys., 1998 WL

397843, at *5; Needy v. Vill. of

Woodridge, 1997 WL 461093, at *6, with

the exception of Shaner v. Synthes, 204

F.3d 494, 503 (3d Cir. 2000),/2 deal

with denials of job training under the

ADA; rather, they address failure to

train claims under Title VII and the

ADEA. This distinction is relevant

because the ADA specifically prohibits

discrimination 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)

(emphasis added), while the parallel

provisions of Title VII, 42 U.S.C. sec.

2000e-2(a), and the ADEA, 29 U.S.C. sec.

623(a)(1) do not specifically include the

term "job training" among the prohibited

actions. If, as Caterpillar suggests, a

plaintiff must show that a denial of job

training was materially adverse, the

inclusion of the words "job training" in

the ADA are mere surplusage because it is

clear that a materially adverse denial of

job training would fall under the

statute’s prohibition of discrimination

in "other terms, conditions, and

privileges of employment." 42 U.S.C. sec.

12112(a). Such a finding would violate

the interpretive principle that, "every

word or provision of a statute must, if

possible, be given some effect." Cent.

States, Southeast & Southwest Areas

Pension Fund v. Reimer Express World

Corp., 230 F.3d 934, 942 (7th Cir. 2000).

Although we acknowledge that several of

our cases contain language suggesting

that an employee must always make a

separate affirmative showing of a

materially adverse employment action in

all ADA cases, see, e.g., Bekker v.

Humana Health Plan, Inc., 229 F.3d 662,

670 (2000);/3 Moore v. J.B. Hunt

Transp., Inc., 221 F.3d 944, 950 (7th

Cir. 2000), none of these cases confront

the issue of whether an ADA plaintiff

alleging denial of job training was also

required to present evidence that the

denial was adverse. In addition, a close

reading of our past employment cases

reveals that the cases suggesting that

plaintiffs must show an adverse

employment action in every case are not

dealing with any specifically articulated

prohibition, but rather with other

"terms, conditions, and privileges of

employment." See, e.g., Crady v. Liberty

Nat’l Bank & Trust Co., 993 F.2d 132, 136

(7th Cir. 1993) ("[A] materially adverse

change in the terms and conditions of

employment must be more disruptive than a

mere inconvenience or an alteration of

job responsibilities."); Spring v.

Sheboygan Area Sch. Dist., 865 F.2d 883,

885 (7th Cir. 1989) ("To establish a

violation of the ADEA, therefore, a

plaintiff must prove that she suffered a

materially adverse change in the terms or

conditions of her employment."). We do

not require a plaintiff who is alleging

discrimination with respect to hiring,

discharge, or the other enumerated

actions to also show that the action was

materially adverse.

In Hunt v. City of Markham, 219 F.3d 649

(7th Cir. 2000), we noted that "[t]he

idea behind requiring proof of an adverse

employment action is simply that a

statute which forbids employment

discrimination is not intended to reach

every bigoted act or gesture that a

worker might encounter in the workplace."

Id. at 653. While we agree that Congress

did not intend the ADA to reach every

bigoted act or gesture, we must believe

that Congress did intend to reach conduct

that it specifically prohibited in the

statute. Thus, with respect to employment

actions specifically enumerated in the

statute, a materially adverse employment

action is not a separate substantive

requirement. We agree with Hoffman that,

because the ADA specifically prohibits

discrimination in regard to "job

training," and she has direct evidence of

discriminatory intent, she need not show

that the denial of training was

materially adverse./4 See Lane v. Wal-

Mart Stores, Inc., No. Civ. CCB-99-763,

2000 WL 1481638, at *7 n. 13 (D. Md. Aug.

28, 2000). Hoffman is not asking for

special training because of her

disability, on the contrary, she is

merely asking for the same training that

is available to all other employees who

request it. Cf. Williams v. United Ins.

Co. of Am., No. 00-3276, 2001 WL 624868

(7th Cir. June 7, 2001).

As a practical matter, the class of

potential ADA plaintiffs affected by

today’s holding is quite small. Direct

evidence cases, like this one, are very

rare in the employment discrimination

context because employers are generally

very careful to avoid statements that

suggest discriminatory intent--whether

their true intentions are discriminatory

or not. Most plaintiffs only possess

indirect evidence of discrimination, and

therefore must proceed using the

McDonnell Douglas burden-shifting method.

Even if the plaintiff is able to make out

a prima facie case for a denial of

training claim, the defendant will be

able to avoid liability by articulating a

legitimate business reason for the denial

of training.

Therefore, because the ADA specifically

prohibits discrimination in the area of

job training and Hoffman has direct

evidence of discrimination, we find that

the district court erred in granting

summary judgment for the defendant on

this issue. In order to recover, Hoffman

must show that she is physically capable

of running the high-speed scanner, but

she is not required to make a separate

showing that the denial of training was a

materially adverse employment action.

Accordingly, we will remand in order to

allow Hoffman to attempt to prove her

disparate treatment claim for denial of

training on the high-speed scanner.

2. Failure to Accommodate

We next turn to Hoffman’s failure to

accommodate claim. At issue is whether

Caterpillar must accommodate Hoffman in

order to allow her to operate the high-

speed scanner if she is unable to do so

without accommodation. As we noted above,

Hoffman has already been accommodated in

order to perform the essential functions

of her job. She now requests (assuming

she needs it) accommodation so that she

may operate the high-speed scanner--a

non-essential function of her position.

While it is admirable that Hoffman wants

to perform job tasks that Caterpillar

does not require her to perform, "[i]t is

the employer’s prerogative to choose a

reasonable accommodation; an employer is

not required to provide the particular

accommodation that an employee requests."

Jay v. Intermet Wagner, Inc., 233 F.3d

1014, 1017 (7th Cir. 2000); see also

Schmidt v. Methodist Hosp. of Ind., 89

F.3d 342, 344 (7th Cir. 1996) (stating

that "[r]easonable accommodation does not

require an employer to provide literally

everything the disabled employee

requests"). Caterpillar has chosen to

accommodate Hoffman’s disability by

letting other employees run the high-

speed scanner, and; if Caterpillar is

correct that Hoffman is unable to run the

high-speed scanner without assistance, we

will not disturb Caterpillar’s chosen

method of accommodation. The ADA requires

"an employer to make whatever

accommodations are reasonably possible in

the circumstances to perform the

functions essential to his position,"

Miranda v. Wis. Power & Light Co., 91

F.3d 1011, 1017 (7th Cir. 1996),

including removing nonessential functions

from the job, see United States E.E.O.C.

v. AIC Sec. Investigations, Ltd., 55 F.3d

1276, 1284 (7th Cir. 1995), but nothing

in the statute requires an employer to

accommodate the employee so that she may

perform any nonessential function that

she chooses. Nor is Caterpillar required

to provide an accommodation if the costs

are disproportionate to the benefits. See

Vande Zande v. State of Wis. Dept. of

Admin., 44 F.3d 538, 542-43 (7th Cir.

1995) (holding that "an employer is not

required to expend enormous sums in order

to bring about a trivial improvement in

the life of a disabled employee").

Therefore, we agree with the district

court’s determination that Caterpillar is

not required to accommodate Hoffman in

running the high-speed scanner if she is

unable to operate it by herself.

C. Denial of Training on the Main

Console

Hoffman also claims that Caterpillar

discriminated against her on the basis of

her disability by denying her training on

the main console. In response,

Caterpillar maintains that operating the

main console is not even part of

Hoffman’s indexing position. Further,

Caterpillar asserts that Hoffman is not

qualified for the position that is

responsible for running the main console

because she lacks the necessary

communication and analytical skills.

Hoffman does not have direct evidence

that she was denied training on the main

console because of her disability.

Therefore, she must proceed by the

McDonnell Douglas burden-shifting method.

See McDonnell Douglas v. Green, 411 U.S.

792, 93 S. Ct. 1817, 36 L. Ed. 2d 668

(1973). Under McDonnell Douglas, if she

is successful in establishing a prima

facie case, a rebuttable presumption of

discrimination is created and the burden

of production shifts to the defendants to

present evidence of a legitimate, non-

discriminatory reason for the challenged

action. See Maarouf v. Walker Mfg. Co.,

210 F.3d 750, 752 (7th Cir. 2000).

IfCaterpillar presents evidence of a non-

invidious reason for its action, the

burden then shifts back to Hoffman to

show that the articulated reason is in

fact a pretext for discrimination. See

id.

In this case it is unclear whether

Hoffman is complaining that she should

have been allowed training on the main

console while staying in her current

position or that Caterpillar’s failure to

move her into the reviewer position was

discriminatory. We need not determine

which action Hoffman is complaining of,

however, because Caterpillar has

presented a legitimate, non-

discriminatory reason for its action and

Hoffman has made no effort to rebut it.

We will deem an issue waived where the

argument on appeal is undeveloped and not

supported with pertinent authority. See

Goren v. New Vision Intl., Inc., 156 F.3d

721, 726-27 n. 2 (7th Cir. 1998).

Therefore, we affirm the district court’s

determination.

III. Conclusion

For the foregoing reasons, the district

court erred in requiring the plaintiff to

show that the denial of training on the

high-speed scanner was a materially

adverse employment action. Therefore, we

VACATE the district court’s grant of

summary judgment on Hoffman’s disparate

treatment claim with respect to the high-

speed scanner and REMAND to allow the

plaintiff to attempt to show that she is

entitled to recover on this claim. We

AFFIRM the district court’s grant of

summary judgment for Caterpillar with

respect to Hoffman’s failure to

accommodate claim as well as her claim

for discriminatory denial of training on

the main console.

FOOTNOTES

/1 In the district court, Hoffman also alleged

violations of the Age Discrimination in Employ-

ment Act (ADEA), 29 U.S.C. sec. 623(a)(1). The

district court granted summary judgment for the

defendant on these claims and Hoffman does not

appeal that decision here.

/2 Defendant cites Shaner v. Synthes for the propo-

sition that a plaintiff must show that the train-

ing denied to the plaintiff was necessary to the

plaintiff’s current job in order to state a

disparate treatment claim under the ADA. We

disagree with this reading of Shaner. In Shaner,

the court addressed whether a particular type of

computer training was necessary for plaintiff’s

position solely in order to determine whether

plaintiff was similarly situated to other workers

who had received computer training. See Shaner,

204 F.3d at 503. The court did not discuss

whether or not the denial of training was a

materially adverse employment action. See id.

/3 Judge Manion’s dissent cites Bekker as support

for the contention that ADA plaintiffs must

always make an affirmative showing of an adverse

employment action. The court in Bekker, however,

did not discuss the adverse action requirement

because the plaintiff in that case was dis-

charged. The only issue in Bekker was whether

Humana’s termination of Dr. Bekker was justified

by its concern that she was under the influence

of alcohol while she was on duty. See Bekker v.

Humana Health Plan, Inc., 229 F.3d 662, 671 (7th

Cir. 2000).

/4 Our holding today does not suggest that any

employee who is denied training of any sort will

have a cause of action under the ADA. An employer

may deny training to any employee for any reason,

so long as that reason is not discriminatory. We

believe the dissent’s example of a NASA worker

requesting training to be an astronaut is inappo-

site. Implicit in this example is the assumption

that the employee is neither eligible nor quali-

fied to be an astronaut. First of all, the ADA

only protects employees who are qualified in

terms of experience and ability to perform a

particular job. Furthermore, to prevail in a

denial of training claim, an employee must always

show that she is eligible for the training in

question. See Macalara v. City of Madison, 224

F.3d 727, 729 (7th Cir. 2000). Our holding today

eviscerates neither of these requirements. It is

clear that Hoffman is qualified for her job, and

that she is eligible for the requested training.

We also believe that the dissent’s example at-

tempts to blur the line between failure to train

and failure to promote claims. The employee in

the NASA example is not asking for training so

she can perform her current job, but is actually

asking to be placed in a different position, i.e.

to be promoted. In Hoffman’s case, it is clear

that she is asking for training pertinent to the

job she has now, not for some job she aspires to.

Moreover, we disagree with the suggestion that

our holding requires employers to train now and

ask questions--i.e., can the employee adequately

perform the task at issue--later. On the con-

trary, our discussion in Part B.1. makes it clear

that an employer is not required to provide

training for a task that the employee is unable

to perform. Our decision today does not change

the timing of the inquiry into the employee’s

ability, it simply requires that the employer

actually make the inquiry.

MANION, Circuit Judge, dissenting. Although

Shirley Hoffman was born without a left arm below

the elbow, with certain accommodations she has

competently performed her job in the Optical

Services Department at Caterpillar. Among other

tasks, she operates a low-speed scanner. She has

requested several times to be trained on the

high-speed scanner but her supervisor has denied

such training because she has only one hand. The

question before us is whether denying her this

training because she is disabled, even though it

is clear that not being so trained will not

affect her salary or her ability to advance, is

a violation of the ADA. Because the district

court properly concluded that Hoffman did not

present sufficient evidence to support a triable

issue of fact that she suffered a materially

adverse employment action, I respectfully dis-

sent.

As a preliminary matter, under the ADA, Hoffman

was required to show that she suffered an adverse

employment action. Whether she presents direct

evidence of disability discrimination, or pro-

ceeds under the burden-shifting method set forth

in McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973), she must show all three of the following

elements to establish her disparate treatment

claim: (1) that she is disabled within the mean-

ing of the ADA; (2) that she is qualified to

perform the essential functions of her job either

with or without reasonable accommodation; and

that (3) she suffered from an adverse employment

action because of her disability. Bekker v.

Humana Health Plan, Inc., 229 F.3d 662, 670 (7th

Cir. 2000). Thus, a plaintiff bringing a dispa-

rate treatment claim under the ADA must always

establish that she suffered an adverse employment

action. And for Hoffman to survive summary judg-

ment in this case, she must present evidence to

support a genuine issue of fact that her employ-

er’s denial of her request to be trained on the

high-speed scanner and the main console was an

adverse employment action. She has not done that,

and the court is not enforcing that requirement.

The court implies that the mere denial of train-

ing is per se an adverse employment action, but

there is no authority for that position.

Furthermore, even though Hoffman alleged that

she suffered one of the categories of discrimina-

tion specifically enumerated in 42 U.S.C. sec.

12112(a) (i.e., denial of job training), she is

still required to show that the denial of train-

ing was an adverse action./1 To illustrate, take

an extreme example. Suppose someone with Hoff-

man’s disability works at NASA, where she has

been reasonably accommodated in a job in which

she monitors flights. Although she did quality

work and was doing well in her career, she always

wanted to see if she could qualify to be an

astronaut; after all, other NASA employees with

similar background and experience had been se-

lected for astronaut training./2 And it would be

a notable achievement for a person with her

condition. So she asks her supervisor for the

opportunity for training as an astronaut, and her

supervisor denies the request, saying: "I can’t

approve your request because you’re disabled."

According to this court’s decision, that employee

has a claim under the ADA, even though she

clearly did not suffer a materially adverse

change in her current career and employment

conditions. The law does not go that far. A

denial of training, without more, cannot be

labeled an adverse action that violates the

ADA./3

Because "’adverse actions can come in many

shapes and sizes,’" Oest v. Illinois Dep’t. of

Corrections, 240 F.3d 605, 613 (7th Cir. 2001)

(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 wheth-

er Hoffman has suffered a materially adverse

employment action. She has not. The district

court properly granted summary judgment because

Hoffman failed to show that the denial of her

request for training was an adverse action.

Another piece of equipment where she wanted

training, the main console, was related to an

entirely different job. And less than one-third

of the employees in Hoffman’s department were

required to operate the high-speed scanner. Work

at the main console and the high-speed scanner

differs from the work she performs at her current

position. Hoffman has retained the same pay and

position and has lost no benefits, seniority or

material responsibilities. Moreover, Hoffman did

not show that her lack of training at the high-

speed scanner and main console prevented her from

being considered for advancement opportunities.

Operating the high-speed scanner was not a neces-

sary step for advancement. Caterpillar also

presented evidence that it promoted other employ-

ees who lacked such training.

Hoffman needed to show that she suffered an

adverse action to survive summary judgment on her

disparate treatment claim. Simply showing that

she was denied job training, a category where the

statute specifically prohibits discrimination, is

not enough. Because Hoffman has not shown that

she suffered an adverse employment action, I

would affirm the district court.

FOOTNOTES

/1 The court cites only to a footnote in Lane v.

Wal-Mart Stores, Inc., No. Civ. CCB-99-763, 2000

WL 1481638, at *7 n. 13 (D. Md. Aug. 28, 2000),

an opinion from the district court of Maryland,

and that footnote cites only generally to the ADA

statute. See contra Atkinson v. Wiley Sanders

Truck Lines, Inc., 45 F.Supp.2d 1288, 1294 (M.D.

Ala. 1998) (it was not an adverse employment

action to deny an employee’s request to partici-

pate in a training course because of the employ-

ee’s disability).

/2 Similar to the hypothetical NASA employee, Hoff-

man aspires to be trained on two machines that

her current position does not require her to

operate. Although the court states in footnote 4

of its decision that Hoffman is seeking training

"pertinent to the job she has now," the court has

also acknowledged throughout its decision that

"Hoffman already performs all of the required

functions of her job"; that "OSD employees in

Hoffman’s position are not required to run the

high-speed scanner"; and that the high-speed

scanner is "a non-essential function of her

position." We also note that unlike the plaintiff

in Williams v. United Ins. Co. of Am., 00-3276,

2001 WL 624868 (7th Cir. June 7, 2001), Hoffman

does not direct us to anything in the record that

indicates that training on the high-speed scanner

was made available to all of the employees in her

department. Such training was not necessary for

promotion or advancement, and it is undisputed

that less than a third of the employees in

Hoffman’s department have received such training.

/3 As the court notes (Part B.2, p. 15), if Cater-

pillar is correct that Hoffman is unable to run

the high-speed scanner without assistance, it

will not disturb the decision to "accommodate

Hoffman’s disability by letting other employees

run the high-speed scanner." But the only way

Caterpillar can be "correct" is to first train

her on the scanner and then, with training com-

pleted, determine whether she can operate it

satisfactorily. This could be a costly experiment

when she has suffered no adverse action in her

present job.