Dvorak, Kevin v. Mostardi Platt Assoc

In the

United States Court of Appeals

For the Seventh Circuit

No. 00-4309

Kevin Dvorak,

Plaintiff-Appellant,

v.

Mostardi Platt Associates, Inc.,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 97 C 8461--Paul E. Plunkett, Judge.

Argued September 19, 2001--Decided May 10, 2002

Before Easterbrook, Diane P. Wood, and

Williams, Circuit Judges.

Diane P. Wood, Circuit Judge. Kevin

Dvorak was employed by Mostardi Platt

Associates, Inc. (Mostardi-Platt) from

1989 until the spring of 1997. Throughout

those years, he suffered from arthritis.

Dvorak’s arthritic pains would come in

flare-ups; there were periods during

which he was able to function quite well,

and other times when his mobility was

significantly restricted. In 1997, during

one of the flare-ups, Dvorak missed work

for a substantial number of days. Shortly

thereafter, he was terminated. Believing

that he lost his job because of his

physical disability, he filed suit

against Mostardi-Platt, alleging that he

had been terminated in violation of the

Americans with Disabilities Act (ADA), 42

U.S.C. sec. 12101 et seq. The district

court entered summary judgment in favor

of Mostardi-Platt. Although it found that

Dvorak was an individual with a

disability as defined by 42 U.S.C. sec.

12102(2) and that genuine issues of fact

existed as to whether he was qualified to

perform his job with or without a

reasonable accommodation, it concluded

that he was terminated for reasons

unrelated to his disability, and

therefore had no claim under the ADA. We

affirm.

I

Mostardi-Platt is a company that

provides professional environmental

consulting, compliance, and testing

services. Initially hired as one of its

technicians, Dvorak eventually became a

Service Manager in the Clean Emissions

Monitoring department (referred to as the

CEM Services Group). In this position, he

performed administrative work and was

occasionally required to conduct field

work, such as on-site visits to clients

and supervision of the monitoring being

performed at various facilities. (Dvorak

disputes the prominence of field work

among his duties, but the percentage of

time he devoted to it, as opposed to the

fact that field work was one component of

the job, is not important.) In 1996 and

1997, Dvorak experienced health problems

in connection with his arthritis that led

him to take a large number of days off

from work. By March 1997, he had run out

of sick leave days and had to take two

weeks of vacation time to undergo

arthroscopic surgery on his knee. This

was unusual: the last time his arthritis

had affected him so strongly had been 15

years earlier.

When he returned to work after the

surgery, Dvorak’s supervisor, Joseph

Macak, asked him to go to Peoria the fol

lowing week for a field assignment.

Dvorak refused, citing his arthritis and

the fact that he would still be on

crutches from the operation at that time,

and relying on a doctor’s note following

the operation that effectively confined

him to desk work. Dvorak also informed

Macak that the doctor had concluded that

Dvorak had a particularly severe form of

arthritis called ankylosing spondylitis

(AS). It is unclear-- though irrelevant

for present purposes--whether any doctor

ever so concluded. Although Dvorak was

never ultimately diagnosed with this

ailment, as opposed to a less severe form

of spondyloarthopathy, we mention his

allegation only in the interest of

presenting the facts in the light

mostfavorable to him.

In early March 1997, before Dvorak took

his leave for the operation, Macak asked

him to prepare a memorandum outlining his

views on how to improve results in the

CEM Services Group. This request

reflected concerns about the productivity

of that Group on the part of both Robert

J. Platt, the company’s president and

sole shareholder, and Macak. Dvorak

turned in the requested memorandum on

April 1, 1997. It was not what Macak

expected. The memorandum itself is in the

record, and its tone is hardly

constructive. Among other things, Dvorak

wrote:

I want to start out be [sic] reiterating

my definition of insanity. Insanity is

doing the same thing you have always done

and expecting things to change! Mostardi

Platt has developed a new definition.

Mostardi Platt is doing less today then

[sic] it has ever done and is expecting

things to change. On the top of

everything else every time we turn around

we are burdened with tasks that make us

less efficient.

In short, the memorandum read more like a

tirade against the company than like a

constructive proposal for improving work

unit performance.

Company management met shortly after

Dvorak delivered the memorandum to

consider the situation as a whole: his

disability, his performance, and his

attitude. They decided it would be best

for Dvorak to be placed on temporary med

ical leave under the Family and Medical

Leave Act (FMLA) program. On April 3,

1997, Dvorak was summoned to a meeting

with management to discuss, among other

things, the option of FMLA leave. Dvorak

resisted the idea, claiming that he could

do his job and thus that medical leave

was not appropriate. Just the previous

day, however, he had written Macak

stating that he "may never be able to do

the same kind of physical work" that he

had "been able to do in the past." At the

end of the meeting, it became clear that

the leave arrangement was not optional.

Platt, Macak, and a third company

official told Dvorak that he had to leave

the building that very day. Macak

accompanied him as he packed up his

personal belongings from his office and

departed. Although Dvorak characterizes

this event as his termination, he admits

that it was not the last of his dealings

with Mostardi-Platt.

After his departure, the company sent

him documents to aid him in his

application for FMLA leave. Initially, he

took steps toward completing the required

forms. While Dvorak was in the process of

applying for medical leave, Mostardi-

Platt discovered that a laptop Dvorak had

used had been tampered with, that a

customer database had been improperly

saved on its hard drive, and that the

computer had been used for personal

purposes, including the sending of

communications to a competitor that were

derogatory of Mostardi-Platt. The company

made efforts to discuss the matter with

Dvorak, but Dvorak was uncooperative. He

refused even to meet to discuss the

alleged misuse of the laptop. Dvorak

continued, however, to communicate in

writing with the company. On April 28,

1997, he wrote to Susan Oswalt, Mostardi-

Platt’s Director of Human Resources, ask

ing "Sue, haven’t you really terminated

my employment?" He asked to be informed

of his status at the company by May 9,

1997. As of April 24, and thus by the

time of the April 28 letter, Dvorak’s

doctor had released him from the desk-

only restriction. He never mentioned this

to anyone at Mostardi-Platt; thus, the

company had no reason to believe that

Dvorak could once again perform field

work. All it had was an earlier e-mail he

had sent to Macak telling the latter that

he did not know when, if ever, he would

be back in shape.

On May 6, 1997, Oswalt wrote Dvorak and

asked for a satisfactory explanation for

the alleged computer misuse. Dvorak never

responded. A further letter from

Mostardi-Platt’s counsel, dated May 21,

1997, expressed once again a willingness

to meet and discuss the issues that had

arisen with respect to Dvorak’s

employability. Again, Dvorak was not

forthcoming, and no such meeting ever

took place.

On May 28, 1997, Mostardi-Platt notified

Dvorak by letter of his termination. The

letter specifically referred to the

damage that Dvorak’s misuse had caused to

the laptop, and further stated that the

inflammatory April 1 memorandum

"completely undermines our confidence and

trust in you."

II

Even though some of the facts are in

dispute, we conclude that they are not

the critical ones. Naturally, as Dvorak’s

claim was dismissed on summary judgment,

we review the district court’s

determinations de novo and draw all

reasonable factual inferences in Dvorak’s

favor. Lalvani v. Cook County, 269 F.3d

785, 789 (7th Cir. 2001).

Dvorak alleged in his complaint that he

was terminated in violation of the ADA.

While his firing did occur in close

temporal proximity to his operation and

the latest flare-up of his arthritis, we

agree with the district court’s

conclusion that Dvorak cannot prove a

case of disability discrimination. To

establish a prima facie case of

discrimination, a plaintiff must show

that (1) she is disabled within the

meaning of the ADA, (2) she is qualified

to perform the essential functions of her

job either with or without reasonable

accommodation, and (3) she has suffered

from an adverse employment decision

because of her disability. Bekker v.

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

669-70 (7th Cir. 2000). The district

court found that Dvorak had put enough in

the record to survive summary judgment on

the first two critera: the severity of

his arthritis for purposes of proving a

disability, and his ability to perform

the functions of his job. He faltered on

the most fundamental showing--that the

decision to terminate his employment was

discriminatory-- whether one

characterizes that as a failure to show

that his adverse employment action was

because of his disability, or as an

inability to show that Mostardi-Platt’s

stated reasons were pretextual.

While "it is not always necessary to

march through" the entire process of

establishing a prima facie case,

articulating nondiscriminatory reasons,

and evaluating pretext, see Lesch v.

Crown Cork & Seal Co., 282 F.3d 467, 473

(7th Cir. 2002), we find it useful under

the circumstances to review the various

elements of the case that Dvorak would

have had to satisfy to survive summary

judgment.

Dvorak first had to show that he is

disabled within the meaning of the ADA.

The ADA’s definition of disability

encompasses a "physical or mental

impairment that substantially limits one

or more of the major life activities," "a

record of such an impairment," or the

status of "being regarded as having such

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

29 C.F.R. sec. 1630.2(g). Major life

activities include "caring for oneself,

performing manual tasks, walking, seeing,

hearing, speaking, breathing, learning,

and working." 29 C.F.R. sec. 1630.2(i).

According to the Code of Federal

Regulations, a person is "substantially

limited" if, compared to the average

person in the general population, she

cannot perform or is limited in the

manner in or extent to which she can

perform one of the recognized activities.

29 C.F.R. sec. 1630.2(j)(ii); see also

Emerson v. Northern States Power Co., 256

F.3d 506, 511 (7th Cir. 2001). As a

general matter, arthritis has been

recognized as a relevant impairment.

Moore v. J.B. Hunt Transport, Inc., 221

F.3d 944 (7th Cir. 2000).

Since Moore was decided, the Supreme

Court has spoken directly to the question

whether a particular impairment qualifies

as a "disability" for ADA purposes. See

Toyota Motor Mfg., Kentucky, Inc. v.

Williams, 122 S.Ct. 681 (2002). In that

case, the Court established a higher

threshold for the statute than some had

believed it contained. "’[S]ubstantially’

in the phrase ’substantially limits’ sug

gests ’considerable’ or ’to a large degree.’"

Id. at 691 (alteration in original). "The

word ’substantial’ thus clearly precludes

impairments that interfere in only a

minor way with the performance of manual

tasks from qualifying as disabilities."

Id. The Court did not question the idea

that walking is a basic enough activity

to qualify as a "major life activity"

under the statute. But Dvorak would have

to show that his arthritis "prevents or

severely restricts" him from walking, in

a permanent or long-term way. Id. See al

so Bragdon v. Abbott, 524 U.S. 624

(1998); 29 C.F.R. sec. 1630.2(i). It is

difficult on the present record to make

this determination: we would need to see

whether Dvorak’s arthritis met the

Williams standard. Alternatively, we

would have to decide whether Mostardi-

Platt regarded him as so severely limited

in his ability to walk (an alternative

method of proof under the statute that

Williams did not address). See 42 U.S.C.

sec. 12102(2); see also Bekker, 229 F.3d

at 670; Wright v. Illinois Dep’t of

Corrections, 204 F.3d 727, 730-32 (7th

Cir. 2000) (discussing the guidelines for

deciding when an employee is "regarded

as" having a disability).

We will assume for the sake of argument

that Dvorak presented enough evidence to

create a question of fact on the

disability issue, though we express no

opinion on the point. Dvorak’s work had

been restricted to desk duty only, and

Mostardi-Platt discussed the limitations

imposed by the disability on Dvorak’s

work performance with its labor counsel.

Mostardi-Platt believed, as informed by

Dvorak, that he might never regain his

full ability to walk. The suggestion that

Dvorak be placed on long-term medical

leave also supports a finding that

Mostardi-Platt regarded Dvorak as being

physically impaired.

Taking his disability as a given, we

must next determine whether there was a

genuine issue of fact about Dvorak’s

qualifications to perform the essential

functions of his job. Under the ADA, a

"qualified individual with a disability"

is one who, "with or without reasonable

accommodation, can perform the essential

functions of the employment position that

such individual holds or desires." 42

U.S.C. sec. 12111(8) (emphasis added).

See also Bultemeyer v. Fort Wayne Cmty.

Sch., 100 F.3d 1281, 1284-85 (7th Cir.

1996). The district court found that

there were factual disputes over the

exact description of his functions that

would have precluded a grant of summary

judgment on this ground alone. This is a

close call, but we once again assume

favorably (and generously) to Dvorak that

with the appropriate accommodations he

could have still performed either this

work or other work Mostardi-Platt might

have been required to find for him.

We note, however, that Dvorak would have

great trouble reaching the jury on the

issue whether he could perform the job

without accommodation. However vague his

official job description might have been,

it is clear from the record that it

required a significant degree of field

work and mobility. Dvorak himself claimed

that he no longer possessed the physical

ability to perform those functions. His

later position that he could have

completed all his "essential duties" with

a desk position accommodation is of no

avail. Under the ADA, an employer is not

required to modify, reduce, or reallocate

the essential functions of a job to

accommodate an employee. Emerson v.

Northern States Power Co., 256 F.3d at

514. Mostardi-Platt concluded that a

"desk work only" medical restriction

could not be accommodated, given the

demands of Dvorak’s job. Thus, it appears

that without accommodation Dvorak could

not perform the job.

What about with accommodations? There is

little suggestion that Dvorak sought any

other available positions, with the

exception of an off-handed mention that

he might be moved to an accounting

position that might have eventually

opened. He was deemed unfit for the

accounting position, and correctly so: as

he himself stated in an e-mail to Macak,

he had not as of that time even completed

the course work necessary to qualify as

an accountant. In addition, to the extent

that Dvorak would like to prevail on the

theory that Mostardi-Platt failed to

accommodate his disability, he runs into

problems with the interactive nature of

the accommodation process. See Beck v.

University of Wisconsin Bd. of Regents,

75 F.3d 1130, 1135 (7th Cir. 1996);

Bultemeyer, 100 F.3d at 1284, 1285.

Dvorak does not seem to have engaged in

good-faith negotiations about possible

accommodations: the threshold of

cooperation set by Bultemeyer requires

serious efforts from both parties. On the

other hand, one might see Dvorak’s ouster

from his office on April 3 as a signal

that Mostardi-Platt had already decided

that all accommodations were pointless,

and thus that further conversation would

be similarly futile. Giving Dvorak the

benefit of the doubt, we will assume that

this is the case and proceed.

With Dvorak’s disability,

qualifications, and adverse job action

established, the burden of production

shifts to the employer to articulate a

nondiscriminatory motive for the

termination. McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 802 (1973); Bellaver

v. Quanex Corp., 200 F.3d 485, 493 (7th

Cir. 2000); DeLuca v. Winer Indus., Inc.,

53 F.3d 793, 797 (7th Cir. 1995). If the

employer does so, the inference of

discrimination disappears, and the

plaintiff must prove by a preponderance

of the evidence that the employer’s

proffered reason was a pretext for

intentional discrimination. Id. The

ultimate burden to prove intentional

discrimination remains with the

plaintiff. St. Mary’s Honor Ctr. v.

Hicks, 509 U.S. 502, 508 (1993).

Here, Mostardi-Platt urges that it

terminated Dvorak for at least two

nondiscriminatory reasons: first, his

overall poor performance record that

culminated in the insubordinate April 1

memo, and second, his misuse of the

laptop. Dvorak disagrees with the former

on the ground that the record shows he

was really an excellent employee; he

attacks the latter as after-acquired

evidence that cannot be used to justify

his termination. His point about after-

acquired evidence requires a short

digression into the question when his

termination occurred. Dvorak contends

that he was fired on April 3, 1997,

before the laptop problem was discovered,

and not on May 28, 1997. If he is

correct, Mostardi-Platt is left only with

the inflammatory memorandum and its

documentation about Dvorak’s

unsatisfactory performance as a reason

for his termination. If, on the other

hand, he was terminated on May 28,

Mostardi-Platt could rely also on the

discovery of his misconduct with respect

to the laptop. (We note that this dispute

makes less practical difference to the

case than Dvorak may think. If we used

the April 3 date, it is true that the

company could not rely on the after-

acquired evidence to justify that

termination date. But, as McKennon v.

Nashville Banner Publ’g Co., 513 U.S. 352

(1995), pointed out, after-acquired

evidence may be considered in the

determination of the proper remedy for an

unlawful act, and typically, backpay may

run only from the date of the unlawful

discharge until the date the employer

would have terminated the employee based

on the later evidence. Mostardi-Platt

knew about the laptop before the end of

April, and thus any backpay award would

have covered only the days between April

3 and the date of discovery.)

Although the exact date of termination

is partly a factual question, the facts

must be evaluated in the light of the

proper legal test. Such a test has been

established in the context of statute of

limitations issues, where the employee

generally tries to show as late a date of

termination as possible. This court

adopted an "unequivocal notice of

termination" test in Mull v. ARCO

Durethene Plastics, Inc., 784 F.2d 284

(1986), agreeing with the approach

developed by the Fifth and the Third

Circuit. The Fifth Circuit rule provides

that termination occurs when the employer

shows, by acts or words, clear intention

to dispense with the employee’s services.

Payne v. Crane Co., 560 F.2d 198, 199

(5th Cir. 1977). In Bonham v. Dresser

Indus., Inc., 569 F.2d 187, 191 (3d Cir.

1977) the Third Circuit explicitly

rejected a rule that focused on an

official termination date, on the grounds

that, as the employer controls such

records, it would be unfair to the

employee to have the timeliness of her

claim determined by unilateral actions,

or statements as to such actions, by the

employer. See also Thurman v. Sears,

Roebuck & Co., 952 F.2d 128, 134 (5th

Cir. 1992) (termination occurs "when the

employee receives unequivocal notice of

his termination or when a reasonable

person would know of the termination.");

Tolle v. Carroll Touch, Inc., 977 F.2d

1129 (7th Cir. 1992) (endorsing

"unequivocal notice of termination" test

for actual date of termination).

We too think that one must look at all

the circumstances to find out what the

employer really did, and when. To that

end, Dvorak urges us to find that his

orders to clear everything out of his

office on April 3 show that Mostardi-

Platt had no intention of ever allowing

him to return and that the company

implemented a de facto termination at

that time. But other undisputed evidence

in the record precludes this

interpretation of the April 3 events.

Both the outcome of the April 3 meeting

and the conduct of both parties in the

weeks that followed are inconsistent with

a reasonable understanding of the April 3

action as a final termination. At the

close of the meeting, Dvorak was told

that he was being placed on medical

leave; this is an action consistent only

with continued employment. Under the

FMLA, an employer has a number of

obligations toward an employee on leave,

whether or not the leave is with pay. We

are sure that Mostardi-Platt does not

extend FMLA leave to non-employees, or

recently terminated employees.

(COBRAbenefits are another matter, but no

one is arguing that this is what Dvorak

was pursuing.) Indeed, had Dvorak truly

believed that he had been terminated on

April 3, the steps he took to be placed

on FMLA leave would now smack of fraud.

To be eligible for FMLA benefits, one

must at a minimum be an "employee," not a

"recently terminated employee." See 29

U.S.C. sec. 2612(a)(1) (referring to

"eligible employee"). A termination

decision makes one ineligible for FMLA

benefits, and thus both Dvorak’s attempt

to obtain such benefits and Mostardi-

Platt’s efforts to process the paperwork

belie the contention that Dvorak was

terminated on April 3. See Brohm v. JH

Properties, Inc., 149 F.3d 517, 523 (6th

Cir. 1998).

Further, between April 4 and May 27,

Dvorak asked for clarification as to his

employment status and was never told that

he had been terminated. Rather, Mostardi-

Platt’s inquiries as to his conduct with

respect to the laptop misuse suggest that

he was still considered an employee.

Dvorak’s own request for clarification,

likewise, tends to show that any notice

he might have received of his termination

was not all that unequivocal.

While the district court gave short

attention to the timing question, it did

conclude in a footnote that May 28 was

the date of termination. We agree. Dvorak

neither treated the decision of April 3,

1997, as a termination, nor should he

have known that this is what Mostardi-

Platt was really doing to him. He had met

with management, he had told them of his

severe work restrictions, and management

suggested that he go on medical leave.

While the order to clear out his desk was

hardly a friendly gesture, this order

alone is simply not enough to support a

finding of the earlier termination date.

Consistent with Dvorak’s claim that he

did not know how long it would be before

he would recover (or if he ever would),

Mostardi-Platt might have asked him to

clean out his desk just to make space for

his temporary replacement. This does not

amount to a display of termination: that

is precisely the notion of "leave."

With no competent evidence to support a

termination date earlier than May 28, the

laptop misuse is not information that the

employer learned after the termination;

it may thus be considered as one of

Mostardi-Platt’s nondiscriminatory

reasons for terminating Dvorak.

Furthermore, even if we are wrong about

all that and the April 3 date controls,

Mostardi-Platt may still rely on its

dissatisfaction with Dvorak’s performance

and its reaction to his inflammatory

memorandum of April 1, 1997. Dvorak

admitted that his productivity numbers

were far below expectations. Employers

cite poor performance and insubordination

frequently as reasons for dismissing

employees. In themselves, these reasons

have nothing to do with the employee’s

disability or any other forbidden

category.

Once Mostardi-Platt offered its evidence

of nondiscriminatory motive, Dvorak still

had a chance to rebut its asserted

nondiscriminatory grounds for his

termination. But a rebuttal must tend "to

show that the employer’s reasons for some

negative job action are false, thereby

implying (if not actually showing) that

the real reason is illegal

discrimination. . . . [T]he question is

not whether the employer’s reasons for a

decision are right but whether the

employer’s description of its reasons is

honest." Kariotis v. Navistar Intern.

Transp. Corp., 131 F.3d 672, 677 (7th

Cir. 1997). The reasons proffered by

Mostardi-Platt easily survive this test.

Dvorak has tried to meet that burden by

producing evidence tending to show that

he did not really misuse the laptop, and

that he was doing a good job. But that

evidence is unresponsive to the issue at

hand. Dvorak needed to show instead that

the decisionmakers at Mostardi-Platt did

not believe that he had misused the

computer and were lying when they

expressed dissatisfaction with his work.

As we have often noted, it does not

matter whether the employer was

ultimately wrong or unfair in the

determination, nor whether a jury in the

company’s shoes would have fired him.

Rather, Dvorak would need to show that

not even the employer believed the

reasons it proffered for firing him. He

can point to nothing that suggests that

the Mostardi-Platt officials did not

genuinely think they were dealing with a

problem of computer misuse. Furthermore,

Dvorak has not shown that the

decisionmakers were dissembling when they

characterized the April 1 memorandum as

totally unsatisfactory and something that

caused them to lose all confidence in

Dvorak. In short, he has no evidence from

which a trier of fact could legitimately

find that the company’s reasons were

pretextual.

III

For these reasons, we Affirm the district

court’s grant of summary judgment in

favor of Mostardi-Platt.