Squibb, Mary R. v. Memorial Medical

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 06-2389

MARY R. SQUIBB,

Plaintiff-Appellant,

v.

MEMORIAL MEDICAL CENTER,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Central District of Illinois.

No. 04 C 3097—Jeanne E. Scott, Judge.

____________

ARGUED MAY 21, 2007—DECIDED AUGUST 16, 2007

____________

Before RIPPLE, WOOD and EVANS, Circuit Judges.

RIPPLE, Circuit Judge. Mary Rios Squibb brought this

action against her former employer, Memorial Medical

Center (“Memorial”), claiming violations of the Americans

with Disabilities Act (“ADA” or “Act”) and the Illinois

Workers Compensation Act (“IWCA”). The district court

granted summary judgment in favor of Memorial on the

ADA claims and declined to exercise supplemental juris-

diction over the IWCA state law claims. Ms. Squibb now

appeals the grant of summary judgment on the ADA

claims. For the reasons set forth in this opinion, we affirm

the judgment of the district court.

2 No. 06-2389

I

BACKGROUND

A. Facts

Ms. Squibb began working for Memorial in 1990 as a

certified nurse assistant and remained there after obtaining

her license as a registered nurse. Between 1993 and 2000,

Ms. Squibb sustained three back injuries in the course of

her duties. Each injury occurred when she had attempted

to lift or move a patient. While recovering from her first

injury, Ms. Squibb had certain temporary lifting restrictions

and an attendant corrective surgery. Eventually, she was

released to work without restrictions.

After the third back injury in 2000, she again required

surgery and a significant recovery period. Prior to the

surgery, her physician, Dr. Stephen Pineda, placed her on

several restrictions. She was not to lift in excess of 5

pounds, push or pull, sit or stand for extended periods, or

bend or stoop. In April 2001, following a surgery in

December 2000, she was returned to “light-duty” work. She

could lift no more than 10 pounds and could work for only

four hours each day. Ms. Squibb stated in her deposition

that she sometimes was required to push a wheelchair

while on “light-duty,” but that she generally did not return

to patient care duties and received help with patient lifting

whenever necessary. During this period she received an

additional temporary assignment within her restrictions.

Ms. Squibb gradually was advanced to working five days

per week and was permitted by her physician to return to

patient care. However, the ten-pound lifting restriction

initially remained in place, and, accordingly, she remained

in temporary, clerical, non-nursing positions until August

2002. Unhappy with her inability to work in a patient care

No. 06-2389 3

nursing capacity, Ms. Squibb requested a further release.

Dr. Pineda loosened her lifting restriction to allow lifts of

up to fifty pounds, but informed her that she likely had

reached maximum post-surgical improvement. Her

restriction would be permanent.

With this additional release on the lifting restrictions, Ms.

Squibb was transferred to a temporary light-duty RN

position. By December 2002, however, the restriction was

confirmed to be permanent, and Memorial was notified.

Memorial, in turn, communicated to Ms. Squibb that she

would have to look for a permanent position that would

accommodate her permanent restrictions because she

would no longer be held in temporary assignments. Ms.

Squibb characterizes this communication as a termination;

Memorial claims she was placed on leave. At the end of

January 2003, Ms. Squibb filed an EEOC charge in which

she claimed that she was terminated because of her disabil-

ity in violation of the ADA.

In January 2003, Ms. Squibb underwent a functional

capacity evaluation (“FCE”) required by Memorial to

assess her physical abilities before another appropriate

position could be found for her. The results of the FCE

revealed that Ms. Squibb could kneel, crouch, stand or sit

“continuously,” that she could twist “frequently” and that

she could bend “occasionally.” R.40-15 at C. Her lifting

maximum in the test was roughly 25-30 pounds, but she

could do this only “rarely.” Id. In continuous lifting or

carrying, she was limited to roughly 5-10 pounds. She

could push and pull upwards of fifty pounds rarely, but,

again, the FCE revealed that, on a continuous basis, she

would be limited to significantly lighter loads of about 15

pounds. The written text accompanying the FCE stated that

Ms. Squibb was in a “[d]econditioned state which limited

4 No. 06-2389

[her] material handling and climbing abilities.” Id. at B. It

otherwise reported that she was “currently functioning at

a light physical demands level, well under the 50# perma-

nent restriction placed on her by her physician.” Id.

Following this test, which concluded that her “abilities

do not match the physical demands of a registered nurse at

Memorial,” id., Ms. Squibb began working as a patient

placement coordinator, a position which she was told

would fit her physical limitations. In the approximately

three months that she held the position, between February

and May 2003, she claims that she twice was asked to

perform duties outside her physician-imposed restrictions.

She missed several days of work for health-related reasons

during this period and she provided physicians’ notes for

these absences. She received lukewarm performance

ratings in this position, and, apparently in response to her

absences, Memorial placed her on administrative leave

lasting until April 2004.

Ms. Squibb brought the present action at the end of April

2004, but her employment odyssey with Memorial contin-

ued. In June 2004, Ms. Squibb provided another letter from

Dr. Pineda that stated that she could return to light duty

with exact limits to be determined by another FCE. Memo-

rial responded by asking whether the lifting restrictions

remained in place; at Ms. Squibb’s request, no additional

medical information was provided.

She applied for additional positions in the field of local

medical review policy, for which she believes she was

qualified, and for one additional position recommended by

Memorial’s human resources personnel as a clinical case

manager. Memorial eventually filled one of the local

medical review policy positions with an employee it

contends had more relevant experience; it eliminated the

No. 06-2389 5

additional position without filling it. Memorial offered Ms.

Squibb the clinical case manager position, but she declined

because she believed the job requirements to be outside her

physical restrictions. In January 2005, Memorial terminated

Ms. Squibb for failure to return from leave when offered

the clinical case manager position.

B. District Court Proceedings

Ms. Squibb’s ten-count complaint against Memorial

alleged that Memorial had violated the ADA at various

times during her employment relationship. The bases for

her claims were essentially that Memorial: (1) failed to

reasonably accommodate her disability; (2) wrongfully

terminated her in December 2002 because of her disability

or perceived disability, and terminated her again in

January 2005 because she refused a position that she was

physically unable to perform because of her disability; (3)

refused to hire her for either of the two local medical

review policy positions because of her disability; (4)

refused to hire her for the local medical review policy

positions in retaliation for her January 2003 EEOC charge

and for filing the instant lawsuit in April 2004; and (5)

terminated her in January 2005, also in retaliation for her

charge and her lawsuit. She also alleged that she was

wrongfully discharged in violation of the IWCA in Decem-

ber 2002 and January 2005.

Memorial moved for summary judgment on all claims.

The district court granted that motion on the ADA claims

and declined to exercise supplemental jurisdiction over the

IWCA claims. The court ruled that: (1) Ms. Squibb was not

disabled; (2) Ms. Squibb was not a qualified individual

with a disability because no reasonable accommodation

6 No. 06-2389

would allow her to perform the essential functions of the

patient care RN positions she sought; and (3) Ms. Squibb

had not produced direct evidence of discrimination in

support of her retaliation charge nor had she met the

requirements of a prima facie case under the indirect

method. Ms. Squibb timely appeals the entry of judgment

against her.

II

DISCUSSION

We review the district court’s grant of summary judg-

ment de novo, construing all facts and inferences in the

light most favorable to the nonmoving party, here, Ms.

Squibb. Timmons v. Gen. Motors Corp., 469 F.3d 1122, 1125

(7th Cir. 2006). Summary judgment is appropriate where

the pleadings, depositions, answers to interrogatories, and

admissions on file, together with any affidavits, show that

there is no genuine issue of material fact, and the movant

is entitled to judgment as a matter of law. Fed. R. Civ. P.

56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

Once the movant has met this burden, in order to survive

summary judgment, the nonmoving party must make a

sufficient showing of evidence for each essential element of

its case on which it bears the burden at trial. Celotex Corp.,

477 U.S. at 322-23. The nonmoving party cannot succeed by

resting on its pleadings; it must provide evidence on which

a jury could reasonably find in its favor. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986).

A.

Ms. Squibb claims that Memorial violated the ADA by

failing to reasonably accommodate her disability, failing to

No. 06-2389 7

hire her because of her disability or perceived disability

and terminating her because of her disability or perceived

disability. The ADA’s prohibition on employment discrimi-

nation provides,

No covered entity shall discriminate against a qualified

individual with a disability because of the disability of

such individual in regard to job application proce-

dures, the hiring, advancement, or discharge of em-

ployees, employee compensation, job training, and

other terms, conditions, and privileges of employment.

42 U.S.C. § 12112(a) (emphasis added). “A plaintiff seeking

to avoid summary judgment must demonstrate that there

is at least a genuine issue of material fact as to whether he

is disabled, whether he can perform the essential functions

of the position, and whether he has suffered an adverse

employment action because of his disability.” Kupstas v.

City of Greenwood, 398 F.3d 609, 611 (7th Cir. 2005).

The ADA defines “disability” as “(A) a physical or

mental impairment that substantially limits one or more of

the major life activities of [the] individual; (B) a record of

such an impairment; or (C) being regarded as having such

an impairment.” 42 U.S.C. § 12102(2). Ms. Squibb claims

that she has a “disability,” either under subsection (A),

because she has an impairment that substantially limits

major life activities, or under subsection (C), because

Memorial regarded her as having such an impairment. The

district court determined that there were no material facts

in dispute, and Ms. Squibb was not disabled as a matter of

law.

Viewing the evidence in the light most favorable to Ms.

Squibb, her physician-imposed restrictions and Memorial’s

own 2003 FCE demonstrate that her back injuries limit her

8 No. 06-2389

movement and her physical strength in a number of ways.

She cannot lift objects over 25-30 pounds; she cannot bend

or twist continuously; she struggles, in varying degrees,

with pulling, pushing and climbing.1

To determine whether her back condition, with its

attendant physical consequences renders Ms. Squibb

“disabled” for purposes of the statute, we ask whether it

“substantially limits” her in any major life activity. The

regulations provide that an individual is substantially

limited in such activities if she is unable to perform such an

activity or is “[s]ignificantly restricted as to the condition,

manner or duration under which” she can perform it, as

compared to an average person in the general population.

29 C.F.R. § 1630.2(j)(1).2 Whether a particular impairment

substantially limits a major life activity is a case-specific,

individualized inquiry. Kampmier v. Emeritus Corp., 472

F.3d 930, 938 (7th Cir. 2007). Ms. Squibb claims to be

limited in her ability to work, sleep, care for herself, walk,

1

Memorial does not contend that Ms. Squibb’s back condition

is not an “impairment” within the meaning of the statute and

the regulations, and we therefore take this as established for

present purposes.

2

The Supreme Court has noted that it is unclear what weight

should be given to the regulations and guidance issued by the

EEOC, because the agency has not been given authority to

interpret the term “disability” as contained in the ADA. Toyota

Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 194 (2002); see

29 C.F.R. § 1630.2(g)-(l). This court continues to use the guidance

provided by the regulations, while acknowledging that they

cannot “obscure the ADA’s ‘demanding standard for qualifying

as disabled.’ ” EEOC v. Sears, Roebuck & Co., 417 F.3d 789, 800-01

(7th Cir. 2005) (quoting Toyota Motor Mfg., 534 U.S. at 197).

No. 06-2389 9

sit and engage in sexual intercourse, all of which she

identifies as major life activities.3 We consider each in turn.

1.

Ms. Squibb claims that, because of her back injury, she is

substantially limited in the major life activity of working.

This court previously has held that working is a major life

activity and the parties have not asked the court to recon-

sider that conclusion.4 See Kupstas, 398 F.3d at 612; 29 C.F.R.

§ 1630.2(i), (j)(3). In order to be substantially limited in the

major life activity of working, the regulations require that

the individual be “significantly restricted in the ability to

perform either a class of jobs or a broad range of jobs in

various classes as compared to the average person having

comparable training, skills and abilities.” 29 C.F.R.

§ 1630.2(j)(3)(i). A demonstrated “inability to perform a

single, particular job” does not render an individual

substantially limited in the major life activity of working.

Id.

We previously have expressed doubt that an inability to

lift more than ten pounds, which in turn restricts an

3

The regulations define “major life activities” to include:

“caring for oneself, performing manual tasks, walking, seeing,

hearing, speaking, breathing, learning, and working.” 29 C.F.R.

§ 1630.2(i).

4

The Supreme Court has not decided whether working

should be classified as a major life activity, but it has acknowl-

edged the “conceptual difficulty” and circularity that this

classification might entail. Sutton v. United Air Lines, Inc., 527

U.S. 471, 492 (1999); see also Toyota Motor Mfg., 534 U.S. at 200;

EEOC v. Schneider Nat’l, Inc., 481 F.3d 507, 511 (7th Cir. 2007).

10 No. 06-2389

individual’s employment opportunities in heavy-duty jobs,

could constitute a disability within the meaning of the

statute. See Mays v. Principi, 301 F.3d 866, 869-70 (7th Cir.

2002) (noting that, although not raised by the parties, the

court did not wish to endorse by its silence the view that a

nurse whose back injuries restricted her lifting to a maxi-

mum of ten pounds was disabled within the meaning of

federal disability law); see also id. at 869 (“The physician

who determined the severity and duration of her back

injury thought she could return to her job as a light-duty

nurse. The number of Americans restricted by back prob-

lems to light work is legion. They are not disabled.”);

Contreras v. Suncast Corp., 237 F.3d 756, 763 (7th Cir. 2001)

(holding that an individual who was “unable to lift in

excess of 45 pounds for a long period of time, unable to

engage in strenuous work, and unable to drive a forklift for

more than four hours a day” was not substantially limited

in the major life activity of working).

These decisions find support in the direction provided by

the Supreme Court when a plaintiff’s claimed disability

limits her employment opportunities:

To be substantially limited in the major life activity of

working . . . one must be precluded from more than

one type of job, a specialized job, or a particular job of

choice. If jobs utilizing an individual’s skills (but perhaps

not his or her unique talents) are available, one is not

precluded from a substantial class of jobs. Similarly, if a

host of different types of jobs are available, one is not

precluded from a broad range of jobs.

Sutton v. United Air Lines, Inc., 527 U.S. 471, 492 (1999)

(emphasis added).

As both the EEOC regulations and Sutton explicitly state,

Ms. Squibb’s inability to work any longer in her nursing job

No. 06-2389 11

of choice, patient care nursing in a general services hospi-

tal, does not demonstrate that she is substantially limited

in the major life activity of working.

In an attempt to fit within the Supreme Court’s descrip-

tion, Ms. Squibb contends that her limitation precludes her

from performing all nursing positions involving patient

care. She claims that this preclusion demonstrates that she

is significantly restricted in performing a “class of jobs.”

However, as we have stated, a “ ‘class of jobs’ is the job

from which a claimant was disqualified, as well as all other

jobs utilizing similar training, knowledge, and skills within

‘the geographical area to which the [claimant] has reason-

able access.’ ” EEOC v. Rockwell Int’l Corp., 243 F.3d 1012,

1017 (7th Cir. 2001) (quoting 29 C.F.R. § 1630.2(j)(3)(i))

(modification in original). Ms. Squibb is a professional

woman holding a license in nursing; we therefore must

consider her working limitations in the context of other

persons possessing similar training, skills and abilities

and the manner of jobs open to them. See 29 C.F.R.

§ 1630.2(j)(3)(i). In support of her claim, she notes that

Memorial’s website only advertises patient care nursing

positions and that Memorial is the largest nursing em-

ployer in the area. Despite this submission, she neverthe-

less further submits evidence that Memorial itself has

available nursing positions, including patient care nursing

positions, for which all of the duties fall within her physical

abilities. See Appellant’s Br. at 40-41.5 On the basis of this

5

In support of her claims that Memorial failed to reasonably

accommodate her “disability,” Ms. Squibb states that she was

qualified for RN positions at certain of Memorial’s affiliated

clinics (HCNAs), “where lifting was not an essential function of

(continued...)

12 No. 06-2389

record, therefore, Ms. Squibb certainly has not raised a

triable issue of fact as to whether her back condition

substantially limits her ability to work. Ms. Squibb’s

evidence on this point does not cross the minimum thresh-

old for demonstrating that she cannot perform a “class of

jobs”: Not only has she failed to produce evidence of the

range of non-patient care nursing positions that persons

with her training could perform, within her restrictions, her

evidence demonstrates that she may perform certain

positions in the particular job of patient care nursing she

seeks. A person cannot demonstrate that she is significantly

limited in performing a “class of jobs” when her own

evidence demonstrates that there are jobs within the broad

parameters of her professional calling that she can perform

without restriction. Accord Brunko v. Mercy Hosp., 260 F.3d

939, 942 (8th Cir. 2001) (stating that a nurse with a 40

pound lifting restriction “was only precluded from per-

forming a narrow range” of jobs by her limitations and,

therefore, was not substantially limited in the major life

activity of working).

Ms. Squibb further maintains that, because of her condi-

tion, she is unable to perform all medium- and heavy-duty

5

(...continued)

an RN position.” Appellant’s Br. at 40. She further states that

she “was capable of performing the job duties of various nursing

jobs at Memorial such as (1) Outcomes Case Manager; (2) Local

Medical Review Policy Coordinator; (3) RN Continued Stay

Specialist; (4) Pre-Admission Planning Nurse; (5) Employee

Health Service Coordinator; and (6) a Charge Resource Nurse.”

Id. at 41 (emphasis added). Her deposition testimony was

that she believed that she could perform the duties of each of

these nursing jobs in the Memorial system without any accom-

modation.

No. 06-2389 13

jobs; she claims this demonstrates that she is restricted

from performing a broad range of jobs in various classes.

To determine whether an individual is precluded, by

reason of their impairment, from performing a “broad

range of jobs in various classes,” we consider “the job from

which a claimant was disqualified, as well as all other jobs

not utilizing similar training, knowledge, and skills within

‘the geographical area to which the [claimant] has reason-

able access.’ ” Rockwell Int’l Corp., 243 F.3d at 1017 (quoting

29 C.F.R. § 1630.2(j)(3)(ii)(A), (C)) (emphasis added)

(modification in original). Ms. Squibb’s blanket contention

that she cannot perform anything other than a light-duty

job does not demonstrate that she is significantly restricted

in performing a broad range of jobs. She has submitted no

evidence of the range of jobs available in her geographic

area that would fall within her physical restrictions, even

if they would not make use of her particular skills. Accord-

ingly, this basis for her claimed limitation on the major life

activity of working suffers from a failure of proof.

Because Ms. Squibb has not produced evidence sufficient

to create a triable issue of fact regarding whether her back

condition significantly restricted her ability to perform

either a class of jobs or a broad range of jobs in various

classes, she has not demonstrated that she is substantially

limited in the major life activity of working.

2.

Ms. Squibb claims that, due to her back pain, she is

unable to sleep for longer than three to four hours per night

and, therefore, is substantially limited in the major life

activity of sleeping. Although this court has indicated that

sleeping is a major life activity, Scheerer v. Potter, 443 F.3d

14 No. 06-2389

916, 919-20 (7th Cir. 2006), we have required evidence that

the limitations on sleeping claimed by the plaintiff are

sufficiently “prolonged, severe and long-term” to warrant

classification as a disability, Burks v. Wisconsin Dep’t of

Transp., 464 F.3d 744, 757 (7th Cir. 2006). We have consid-

ered the extent to which a claimed lack of sleep contributes

to a decreased functional level in determining whether the

severity of the sleep deprivation at issue rose to the level of

a disability. See id. Ms. Squibb’s generalized assertions that

she is unable to sleep for substantial periods of time,

unsupported by any additional evidence, medical or

otherwise, and unenhanced by claims that this lack of sleep

affects her daytime functions, are insufficient to create a

genuine issue of fact on her claim that she is disabled

because of the limitations on her ability to sleep.6

6

See Nuzum v. Ozark Auto. Distribs., Inc., 432 F.3d 839, 848 (8th

Cir. 2005) (holding that an employee who could sleep for no

more than two and a half hours at a time, for a total of five

hours per night, was not disabled); Swanson v. Univ. of

Cincinnati, 268 F.3d 307, 316-17 (6th Cir. 2001) (holding that

inability to sleep more than four to five hours per night did not

demonstrate a substantial limitation in the major life activity of

sleeping as compared to the average person’s ability to sleep).

But see Head v. Glacier Nw., Inc., 413 F.3d 1053, 1061 (9th Cir.

2005) (holding that a plaintiff’s testimony that he was limited to

five or six hours of sleep with the assistance of medications that

hampered his daytime functions and that, even with medica-

tions, sometimes he could not sleep at all, was sufficient to

withstand summary judgment on whether he had a substan-

tial impairment in the major life activity of sleeping).

No. 06-2389 15

3.

Ms. Squibb also claims to be substantially limited in the

major life activity of caring for herself. See 29 C.F.R.

§ 1630.2(i) (identifying “caring for oneself” as an example

of a major life activity). In support of her claim, Ms. Squibb

relies on her own statements that she has difficulty with the

specific activities of zipping or buttoning her clothing in

the back, brushing the back of her hair, and that she is

limited in her ability to do household tasks such as cook-

ing, cleaning and grocery shopping, although she performs

certain of these tasks on occasion. In light of the tasks she

admittedly can perform (driving, bathing, brushing her

teeth, dressing herself), we must conclude that, as a matter

of law, the limitations she claims do not demonstrate that

she is “prevent[ed] or severely restrict[ed],” Toyota Motor

Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 198 (2002),

from caring for herself. See Holt v. Grand Lake Mental Health

Ctr., Inc., 443 F.3d 762, 763 (10th Cir. 2006) (noting that an

individual who “sometimes has difficulty eating and must

chew her food thoroughly or it will become lodged in

her throat[,]. . . . cannot cut her own fingernails or toe-

nails[,]. . . . can dress herself, but sometimes must ask for

help when buttoning her clothes” had not raised a genuine

issue of fact as to whether she was substantially limited in

the major life activity of caring for herself).

4.

Ms. Squibb next contends that she is substantially limited

in the major life activities of sitting and walking. She

specifically claims that she is unable to sit for more than

thirty minutes at a time and that her difficulties walking

were noticed and documented in an e-mail by one of her

16 No. 06-2389

supervisors. Other than stating that she walks with diffi-

culty, she does not identify any specific limits—such as

time or distance—on her ability to walk. The only addi-

tional evidence relating to her abilities in these functions

contained in the record, the 2003 FCE, specifically finds

that she can sit or stand continuously. Even taking Ms.

Squibb’s contentions regarding her ability to walk or sit at

face value, her assertion that she needs breaks every thirty

minutes does not compare to the claims this court has held

should survive summary judgment. See, e.g., EEOC v. Sears,

Roebuck & Co., 417 F.3d 789, 802 (7th Cir. 2005) (reversing

summary judgment for employer where employee’s

evidence showed she could walk no more than one block).

On this record, a trier of fact could not conclude rationally

that Ms. Squibb is substantially limited in the major life

activities of sitting and walking.

5.

Ms. Squibb finally contends that she is substantially

limited in the major life activity of sexual relations.

The Supreme Court has ruled that sexual reproduction is

a major life activity. Bragdon v. Abbott, 524 U.S. 624, 638-39

(1998). Although this court has recognized that it could be

inferred from Bragdon that engaging in sexual relations

constitutes a major life activity, it has deferred the question.

See Scheerer, 443 F.3d at 921. We do so again here, because,

even if we concluded that sexual relations is a major life

activity, Ms. Squibb has not demonstrated sufficient

evidence of her limitation to prevent summary judgment

on this issue. See Contreras, 237 F.3d at 764 (“[E]ven if we

assume that engaging in sexual relations is a major life

activity, Contreras has not substantiated his claim of sexual

No. 06-2389 17

difficulties with any documentation or testimony beyond

a general assertion that the frequency with which he has

relations has decreased.”). We previously have held that a

plaintiff’s own conclusory assertion of reduced ability to

engage in intercourse is insufficient to create a genuine

issue of triable fact. Id. Ms. Squibb’s claim suffers the same

deficiency. Although her own deposition testimony states

that she has been unable to engage in sexual relations for

two years due to her back pain, she has provided no other

evidence of her claimed sexual limitation; neither is any

difficulty easily inferred from the minimal restrictions

placed on her physical activity by her physician or from the

physical limitations revealed by the FCE on continuous

activities in an eight hour working day.

In any event, as we have noted elsewhere, it is unclear in

what manner a plaintiff’s employer would accommodate a

disability that restricted the plaintiff’s ability to engage in

sexual relations. Scheerer, 443 F.3d at 921 (“Even if he could

provide such evidence, Scheerer fails to explain in what

fashion the Postal Service could reasonably accommodate

his diabetes in the context of symptoms of sexual dysfunc-

tion.”). We agree with our colleagues in the Eighth Circuit

that, to the extent an ADA discrimination claim centers on

a request for a workplace accommodation, there must be

some causal connection between the major life activity that

is limited and the accommodation sought. Nuzum v. Ozark

Auto. Distribs., Inc., 432 F.3d 839, 848 (8th Cir. 2005) (reject-

ing the plaintiff’s claim that his inability to “hug” could be

the basis for an ADA claim against his employer, because

“even if [the plaintiff] were held to be disabled by virtue of

the hugging limitation, it would not save his claim since he

seeks an accommodation from his employer, which must

be related to the limitation in question.”).

18 No. 06-2389

6.

In addition to her claims that she suffers from an impair-

ment that qualifies as a disability under the statute, Ms.

Squibb also claims that Memorial “regarded” her as substan-

tially limited in the major life activities of walking and

working.

This court recently has clarified that, in order to proceed

under the “regarded as” prong of the ADA, a plaintiff must

demonstrate that the employer believed that the employee

(1) had an impairment (2) that substantially limited (3) one

or more major life activities. See Kampmier, 472 F.3d at 937-

38. “If the condition that is the subject of the employer’s

belief is not substantially limiting, and the employer does

not believe that it is, then there is no violation of the ADA

under the ‘regarded as’ prong of the statute.” Id. at 938

(internal quotation marks omitted). Ms. Squibb claims that

the hospital had notice of her difficulties with patient care

nursing related to lifting and, therefore, moved her to an

unassigned nursing position (rather than staff nursing); in

addition, Memorial employees had noticed and reported

her difficulties walking to a supervisor. However, Ms.

Squibb’s claims essentially rest on Memorial’s knowledge

of her claimed disabilities. She has not presented any

evidence that suggests that Memorial’s beliefs about her

limitations exceeded the scope of her actual limitations. As

we already have concluded, the impairments she claims do

not, on their own accord, rise to the level of substantial

limitations in the major life activities of walking or work-

ing. Therefore, Memorial’s notice of those disabilities

cannot establish that it regarded Ms. Squibb as disabled.

Because we have concluded that Ms. Squibb is not

disabled within the meaning of the Act, she is not protected

by its substantive anti-discrimination provisions. We need

No. 06-2389 19

not examine her reasonable accommodation, termination or

failure to hire claims further. See Kampmier, 472 F.3d at 938-

39.

B.

In addition to claiming that she was the victim of disabil-

ity discrimination, Ms. Squibb also claims that Memorial

took a number of actions against her in retaliation for her

EEOC charge. Our conclusion that Ms. Squibb is not

disabled does not foreclose these latter claims. The Act

prohibits an employer from retaliating against an employee

who has raised an ADA claim, whether or not that em-

ployee ultimately succeeds on the merits of that claim.7

Cassimy v. Bd. of Educ. of Rockford Pub. Schs., 461 F.3d 932,

938 (7th Cir. 2006).

Ms. Squibb claims both that she has presented direct

evidence of retaliation and that she has set forth a prima

facie case of discrimination using the indirect method. We

shall examine each contention.

1.

A plaintiff succeeds in establishing unlawful retaliation

under the direct method by presenting evidence of: “(1) a

7

The ADA anti-retaliation provision provides:

No person shall discriminate against any individual because

such individual has opposed any act or practice made

unlawful by this chapter or because such individual made

a charge, testified, assisted, or participated in any manner in

an investigation, proceeding, or hearing under this chapter.

42 U.S.C. § 12203(a).

20 No. 06-2389

statutorily protected activity; (2) an adverse action; and (3)

a causal connection between the two.” Burks, 464 F.3d at

758. Ms. Squibb claims Memorial took several actions after

she had engaged in the protected activity of filing an EEOC

charge in January 2003. Ms. Squibb claims that she was

refused the local medical review policy positions for which

she had applied and ultimately was terminated in retalia-

tion for her charge and the subsequent suit. Ms. Squibb has

satisfied two prongs of the test: Refusal to hire and termi-

nation are adverse actions, and the filing of a charge is a

statutorily protected activity.8

Ms. Squibb appears to recognize that the timing of her

termination and the refusal to hire, both in January 2005,

preceded eight months earlier by the filing of the present

action and two years earlier by a discrimination charge, is

insufficient circumstantial evidence, standing alone, to

demonstrate a causal connection between the two. See

Burks, 464 F.3d at 758-59 (noting that more than suspicious

timing is generally required); Sauzek v. Exxon Coal USA,

Inc., 202 F.3d 913, 918 (7th Cir. 2000) (“The mere fact that

one event preceded another does nothing to prove that the

first event caused the second. Rather, other circumstances

must also be present which reasonably suggest that the two

events are somehow related to one another.” (internal

8

See Hoffman v. Caterpillar, Inc., 256 F.3d 568, 575-76 (7th Cir.

2001) (examining what employment actions are sufficiently

“adverse” to satisfy the statutory language in 42 U.S.C.

§ 12112(a)); see also Horwitz v. Bd. of Educ. of Avoca Sch. Dist. No.

37, 260 F.3d 602, 612 (7th Cir. 2001) (noting that the plaintiff

engaged in protected activity in filing EEOC charges and a

subsequent lawsuit).

No. 06-2389 21

citations omitted)).9 In an attempt to demonstrate retalia-

tory motive, Ms. Squibb contends that she suffered an

intermediate retaliatory act: She was offered the position of

patient placement coordinator, a job she contends was

clearly outside her physical restrictions.10 Ms. Squibb

testified that, while in this position, she was twice ordered

to perform duties outside her physical restrictions by co-

workers, not supervisors, and “disciplined . . . for reasons

associated with her disability.” Appellant’s Br. at 47. These

two incidents involving co-workers do not demonstrate

9

We note that, under narrow circumstances in which the time

period between the protected activity and the adverse action is

exceedingly short, we previously have found circumstantial

evidence of retaliatory motive. See McClendon v. Indiana Sugars,

Inc., 108 F.3d 789, 796-97 (7th Cir. 1997) (finding that the

immediacy of an adverse action occurring only two days after

protected activity was sufficiently short to support an inference

of discriminatory motive and discussing similar cases). We have

noted that, “as the temporal distance between [the claimant’s]

protected expression and the adverse action increase[s], it is

less likely that there is a causal link between the two events.”

McKenzie v. Illinois Dep’t of Transp., 92 F.3d 473, 485 (7th Cir.

1996). We need not decide the extent that the McClendon line of

cases remains viable in light of the development of circuit law,

however, because under the circumstances alleged in this case,

in which months or years passed between the protected activi-

ties and the claimed adverse action, McClendon’s narrow

exception can have no application.

10

Ms. Squibb’s brief on summary judgment and to this court

could be read as suggesting that the job offer itself was an

adverse action sufficient to support her claim of retaliation. We

note that this contention was not a part of her amended com-

plaint, nor was it presented in her EEOC charge. Therefore,

we do not consider it on its merits.

22 No. 06-2389

that the job generally required more than Ms. Squibb was

capable of doing; nor do they demonstrate that Memorial

harbored a retaliatory motive against her when it placed

her in the position. Memorial’s act of disciplining Ms.

Squibb for multiple absences in this position also does not

provide any evidence that it harbored a retaliatory motive

in response to her EEOC charge.

In short, her unsuccessful assignment to the patient

placement coordinator position does not demonstrate that,

when she ultimately was terminated and refused the local

medical review policy positions in 2005, it was the culmina-

tion of some sort of pattern of retaliatory activity, as Ms.

Squibb suggests. Ms. Squibb has failed to come forward

with evidence of retaliation under the direct method of

proof sufficient to withstand summary judgment.

2.

Ms. Squibb also contends that she has provided sufficient

evidence to withstand summary judgment using the

indirect method of proof of retaliation. To succeed under

the indirect method of proof on a retaliation claim, a

plaintiff must demonstrate: “(1) that she engaged in

protected activity; (2) that she was subject to an adverse

employment action; (3) that she was performing her job

satisfactorily; and (4) that no similarly situated employee

who did not engage in protected activity suffered an

adverse employment action.” Burks, 464 F.3d at 759. As we

already have noted, Ms. Squibb has provided two adverse

actions—failure to hire and termination—and statutorily

protected activity in the filing of her discrimination charge

and this action. We therefore examine the latter two

components of her prima facie case.

No. 06-2389 23

Ms. Squibb asserts that she was meeting Memorial’s

legitimate expectations. Although Ms. Squibb invites our

attention to her successes as a nurse prior to the filing of

her EEOC charge in 2002, we must examine her perfor-

mance at the time of the challenged adverse actions. See

Timmons, 469 F.3d at 1128 (noting that “at the time he was

placed on leave, [the plaintiff] was failing to meet [his

employer’s] legitimate expectations” and, therefore, could

not establish this element of his prima facie case). After the

charge, Ms. Squibb missed significant amounts of work and

received poor evaluations for a lack of attention to detail.

By January 2005, when she was terminated, she was on

extended leave and refused to accept a position Memorial

had offered her. Ms. Squibb has come forward with no

evidence whatsoever that she was performing as Memorial

reasonably would expect her to perform during the rele-

vant time period.

In addition, Ms. Squibb has not identified a similarly

situated employee who was treated more favorably

because she did not file a discrimination charge. Ms.

Squibb invites the attention of the court to Ruth Ann Cope,

another registered nurse with back problems who had been

hired in the local medical review policy coordinator

position two years earlier. At the time Cope was hired, she

did not possess the experience that Memorial later told Ms.

Squibb was necessary for the local medical review policy

positions. Ms. Squibb does not dispute that Memorial had

changed the position requirements since the time Cope was

hired. She likewise does not dispute that Memorial restruc-

tured the duties of that position, rendering it essentially

managerial and effectively eliminating the second coordi-

nator position. Given these intervening changes to the

position description, Ms. Squibb cannot say that she and

Cope were similarly situated with respect to it.

24 No. 06-2389

With respect to the local medical review policy analyst

positions, Memorial eventually hired two individuals with

the relevant experience that Ms. Squibb lacked. Ms. Squibb

is not “similarly situated” to persons better qualified for an

open position than she was. See Patterson v. Avery Dennison

Corp., 281 F.3d 676, 680 (7th Cir. 2002) (noting that, in order

to demonstrate that a comparison individual is similarly

situated to a plaintiff, the plaintiff is required to produce

evidence that the comparison employee is “directly compa-

rable to her in all material respects,” and further noting

that “experience, education and qualifications” are particu-

larly relevant in this inquiry).

Because Ms. Squibb can demonstrate neither that she was

performing up to Memorial’s legitimate expectations at the

time of the adverse actions she suffered nor that any

similarly situated employee who did not engage in pro-

tected activity was treated more favorably than she, she

has not made out a prima facie case of retaliation under

the indirect method of proof.

Conclusion

Ms. Squibb has not presented sufficient evidence to

create a genuine issue of fact as to whether she is disabled

within the meaning of the Act; neither has she presented

evidence that the adverse employment actions she suffered

were taken by Memorial in retaliation for her statutorily

protected activities. We therefore affirm the district court’s

entry of summary judgment in Memorial’s favor.

AFFIRMED

No. 06-2389 25

A true Copy:

Teste:

_____________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—8-16-07