Nancie Cloe v. City of Indianapolis

In the

United States Court of Appeals

For the Seventh Circuit

No. 12-1713

N ANCIE J. C LOE,

Plaintiff-Appellant,

v.

C ITY OF INDIANAPOLIS,

Defendant-Appellee.

Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

No. 10-cv-1070—William T. Lawrence, Judge.

A RGUED O CTOBER 12, 2012—D ECIDED A PRIL 9, 2013

Before K ANNE, T INDER, and H AMILTON, Circuit Judges.

K ANNE , Circuit Judge. Nancie J. Cloe started working

for the City of Indianapolis in April 2007. In March 2008,

she was tragically diagnosed with multiple sclerosis

(“MS”), a chronic, incurable neurological disorder

that rendered her disabled and significantly impaired

her day-to-day life. On June 29, 2009, the City terminated

her, ostensibly for poor performance. Cloe sued under

the Americans with Disabilities Act (“ADA”), 42 U.S.C.

2 No. 12-1713

§ 12101 et seq., alleging that the City (1) discriminated

against her because of her disability; (2) failed to rea-

sonably accommodate her disability; and (3) retaliated

against her for requesting accommodations for her dis-

ability. The district court granted summary judgment

in favor of the City. For the reasons that follow, we

affirm the district court’s judgment on Cloe’s rea-

sonable accommodation claims, but reverse on her dis-

crimination and retaliation claims.

I. B ACKGROUND1

On May 1, 2007, the City of Indianapolis’s Department

of Metropolitan Development hired Nancie J. Cloe to

work as an Unsafe Buildings/Nuisance Abatement

Project Manager. Cloe’s initial supervisor was Jennifer

Greene, the Assistant Administrator of the Division of

Community Economic Development. Wendy Cooper,

a Senior Project Manager, became Cloe’s supervisor

shortly thereafter.

One of Cloe’s responsibilities was to arrange multi-

agency sweeps of abandoned, derelict, and unsafe prop-

erties. This job required Cloe to coordinate various

city agencies, including the police department, animal

control, and code enforcement. It also required a lot of

1

Because this is an appeal from an entry of summary judgment,

we have construed all of the facts in the light most favorable

to Cloe. See Arizanovska v. Wal-Mart Stores, Inc., 682 F.3d 698,

702 (7th Cir. 2012).

No. 12-1713 3

field work. During a sweep, Cloe would walk the neigh-

borhood and talk with members of the community about

their needs and concerns. Cloe would then monitor

the agencies and write reports about their progress.

Cloe also responded to neighborhood complaints about

derelict buildings and performed preliminary, walk-

around inspections of abandoned structures. By all ac-

counts, Cloe had a knack for field work—she received

positive performance reviews and several community

outreach awards from City leaders.

In March 2008, less than a year after she was hired,

Cloe was diagnosed with MS. After Cloe received her

MS diagnosis, her doctor ordered Cloe to take time off

from work, in part because of the sometimes-debilitating

nature of Cloe’s disease. Cloe returned to work in late

April 2008 but could only work 2-3 days a week and was

restricted to desk duty. In May 2008, her doctor lifted

some of Cloe’s restrictions and allowed her to work

3-4 days a week of desk duty. Because Cloe’s condition

made it difficult for her to walk, her doctor also asked

that Cloe be provided nearby parking and a personal

printer. Before Cloe was diagnosed with MS, her job

involved about 70% field work and 30% office work.

Under her doctor’s restrictions, however, Cloe’s job

became almost entirely desk-bound. Even after re-

turning to work, Cloe continued to suffer the effects

of her condition, including difficulty walking, vision

impairment, memory problems, difficulty concentrating,

and poor spelling and grammar. Cloe also suffers

from attention deficit hyperactivity disorder, panic at-

tacks, fibromyalgia, and hypertension. According to

4 No. 12-1713

Cloe, these conditions also impair her memory and

ability to concentrate.

Starting in June 2008, Cloe began having trouble with

her supervisor. On June 26, 2008, Cooper ordered Cloe

not to attend a sweep scheduled for the following day

because she believed it was a risk to Cloe’s health. Cloe

attended anyway, and Cooper issued her a written disci-

plinary action for insubordination. Cloe attributed the

incident to miscommunication, and Cooper’s overall

review of Cloe’s performance at the end of the year re-

mained positive.

In late 2008, the City restructured its approach to aban-

doned housing. As part of the restructuring, Cloe’s old

job duties were divided among various new positions.

Cloe accepted one of those positions on January 5, 2009,

and became the “Boarding Manager.” On the same day,

Michelle Winfield, the Unsafe Buildings Manager,

became Cloe’s new supervisor.

After Winfield became Cloe’s supervisor, things

quickly went downhill. On January 26, 2009, Winfield

assigned Cloe a large research project to be finished by

5:00 p.m. on January 29, 2009. On January 27, 2009,

Cloe requested leave under the Family and Medical

Leave Act for January 29 and January 30. Winfield ap-

proved the requests, but she also reminded Cloe of the

January 29 deadline and offered to help Cloe meet the

deadline if necessary. Cloe assured Winfield that she

would finish the project on time. The following day,

January 28, Winfield again reminded Cloe of the dead-

line and offered to help her meet it. Cloe again declined

No. 12-1713 5

and said she could finish the project on her own. Later

that day, however, Winfield’s supervisor, Janna Mays,

contacted Cloe directly and told her the deadline had

been pushed back several days. Cloe assumed that

Winfield had been told the same thing and informed

Winfield that she would not be able to finish the project

by January 29. As a result, on February 2, 2009, Winfield

issued Cloe a written disciplinary notice for poor work

performance and failure to perform an assigned duty.

At around the same time, Winfield also started express-

ing concern with Cloe’s written work. Beginning in

late 2008, other agencies and vendors started com-

plaining that they could not understand some of Cloe’s

written communication. At a February 6, 2009 meeting,

Cloe, Winfield, and several others discussed a number

of issues, including poor spelling, bad grammar, and

incorrect addresses on demolition requests. A few days

later, Winfield gave Cloe a written Memorandum of

Understanding that directed Cloe to double-check and

read documents aloud, to have a second person edit

her work, and to submit documents for Winfield’s

review before sending them out.

On April 8, 2009, Cloe received a citizen complaint

about an unsafe structure in need of emergency demoli-

tion. Cloe called Winfield and asked for permission to

inspect the structure that evening. Winfield said no.

The following morning, April 9, 2009, Cloe went to the

property, took photos, and sent them to the responsible

agency. She did not directly request an emergency dem-

olition, though, because she did not think it was her job.

6 No. 12-1713

At about 4:00 p.m. that afternoon, Cloe called Winfield

to tell her about the property and to ask for permis-

sion to attend the demolition. Winfield ordered Cloe

not to attend.

Sometime after 5:00 p.m. that day, Winfield discovered

that nobody had actually ordered an emergency demoli-

tion. Winfield managed to schedule the demolition for

that evening, but the City ended up having to pay

several hundred dollars in overtime because of the late

notice. Although Winfield had forbidden Cloe to attend

the demolition, another supervisor told Cloe to contact

the neighbors and inform them about the demolition.

Cloe drove out to the neighborhood, sat and visited

with the neighbors, and watched the preparations for

the demolition. Once the demolition started, Cloe left.

A few weeks later—sometime in late April 2009—Cloe

met with Winfield and Mays. During the meeting,

Cloe told Mays and Winfield that she had to leave

early because of a doctor’s appointment. Both Mays and

Winfield expressed anger that Cloe was leaving early.

Approximately one week later, on May 4, 2009, Winfield

disciplined Cloe for failing to schedule the April 9 emer-

gency demolition and for later attending the demoli-

tion contrary to orders. Winfield also signed a Per-

formance Improvement Plan stating that Cloe’s perfor-

mance was “below expectations,” that she had “consis-

tently turned in inaccurate work,” and that she had

been “dishonest and insubordinate.” (R. 46-32 at 10.)

On June 11, 2009, Mays issued a Notice of Unacceptable

Performance or Conduct. That notice indicated that

No. 12-1713 7

“requirements for satisfactory performance [by Cloe]

have continued to be unmet” and recommended

Cloe’s termination. (R. 46-35.) The City accepted the

recommendation and terminated Cloe on June 29, 2009.

Cloe sued, alleging that the City (1) failed to accom-

modate her disability; (2) discriminated against her

because of her disability; and (3) retaliated against her

for requesting accommodations for her disability. The

district court granted summary judgment in favor of

the City, and Cloe timely appealed.2

II. A NALYSIS

Summary judgment is proper where “there is no

genuine dispute as to any material fact and the movant

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

P. 56(a). We review the district court’s entry of sum-

mary judgment de novo, viewing all of the evidence in

the light most favorable to the nonmoving party.

Arizanovska, 682 F.3d at 702. “However, our favor toward

the nonmoving party does not extend to drawing in-

ferences that are supported by only speculation or con-

jecture.” Harper v. C.R. England, Inc., 687 F.3d 297, 306

(7th Cir. 2012) (internal quotation marks and brackets

omitted). Rather, a genuine issue of material fact exists

2

We heard oral argument in this case at the Indiana

University Maurer School of Law. We thank the students,

staff, and faculty of the law school for being such gracious

hosts; we thank counsel for their fine advocacy; and we

thank the parties for their patience.

8 No. 12-1713

only if there is enough evidence that a reasonable

jury could return a verdict in favor of the nonmoving

party. Id.

A. Reasonable Accommodation

We will start with Cloe’s reasonable accommodation

claims. The ADA requires employers to make “reasonable

accommodations to the known physical or mental lim-

itations of an otherwise qualified individual with a disa-

bility who is an applicant or employee, unless [the em-

ployer] can demonstrate that the accommodation would

impose an undue hardship on the operation of the

business of [the employer].” 42 U.S.C. § 12112(b)(5)(A).

In order to establish a prima facie case of failure to ac-

commodate under the ADA, “a plaintiff must show

that: (1) she is a qualified individual with a disability;

(2) the employer was aware of her disability; and

(3) the employer failed to reasonably accommodate the

disability.” Kotwica v. Rose Packing Co., 637 F.3d 744, 747-

48 (7th Cir. 2011).

The ADA’s reasonable accommodation requirement

applies only to “known” disabilities. 42 U.S.C.

§ 12112(b)(5)(A). Thus, “a plaintiff must normally

request an accommodation before liability under the

ADA attaches.” Fleishman v. Cont’l Cas. Co., 698 F.3d 598,

608 (7th Cir. 2012); see also Jovanovic v. In-Sink-Erator Div.

of Emerson Elec. Co., 201 F.3d 894, 899 (7th Cir. 2000)

(“Although there will be exceptions to the general rule . . .

the standard rule is that a plaintiff must normally

request an accommodation before liability under the

No. 12-1713 9

ADA attaches.”) (internal citation omitted). Once the

employer has been put on notice, the employer must

take reasonable steps to accommodate the employee’s

disability. “ ‘The duty of reasonable accommodation is

satisfied when the employer does what is necessary to

enable the disabled worker to work in reasonable com-

fort.’” EEOC v. Sears, Roebuck & Co., 417 F.3d 789, 803

(7th Cir. 2005) (quoting Vande Zande v. Wis. Dep’t of

Admin., 44 F.3d 538, 546 (7th Cir. 1995)).

Here, Cloe contends that the City failed to reasonably

accommodate her by (1) failing to timely provide a

nearby parking space; (2) failing to timely provide her

with a printer close to her office; and (3) failing to

help proofread her work. We address each argument

in turn.

1. Parking space

Cloe first argues that the City failed to grant her

request for a nearby parking space within a reasonable

amount of time. The timeline of events for this claim is

a little hazy, but, viewed in the light most favorable

to Cloe, see Arizanovska, 682 F.3d at 702, the evidence

suggests as follows:

Cloe worked at the Indianapolis City-County Building

located at 200 East Washington Street in downtown

Indianapolis. (R. 54-1 at ¶ 4.) When Cloe first started

working there, she was assigned parking in a garage

at the intersection of Maryland Street and Alabama

10 No. 12-1713

Street, about two blocks away.3 (Id. at ¶ 3.) In April 2008,

Cloe mentioned to her supervisors that she was having

trouble walking from the parking garage. (Id. at ¶ 4.) The

record does not indicate, however, that she specifically

requested an accommodation based on this difficulty.

(Id.) Because of her difficulties, Cloe started parking at

her own expense in a lot catty-corner to the City-

County building at the intersection of Market Street and

Alabama Street. (Id.)

On July 2, 2008, Cloe submitted a list of medical re-

strictions to the City. (See R. 46-18.) The restrictions indi-

cated that “[s]pecified parking is preferred if possible” and

that, “[i]f required to park [at] a distance the patient

will walk back to office at her own pace.” (Id. at 3.) In

response, the City assigned Cloe to a different lot at

Washington Street and Alabama Street, directly across

the street from the City-County Building. (R. 54-1 at ¶ 4.)

It is unclear exactly when Cloe actually received a

parking pass for this lot. Emails sent on October 17,

2008, strongly suggest that Cloe had already been

parking at this new location for some time; in one of

the October 17 emails, Cloe discussed how she had a

hard time finding parking at the new location and that

she had tried to contact a City administrator several

3

We have taken judicial notice of—and drawn our distance

estimates from—images available on Google Maps, “a

source whose accuracy cannot reasonably be questioned, at

least for the purpose of determining” general distances.

United States v. Perea-Rey, 680 F.3d 1179, 1182 n. 1 (9th Cir.

2012) (internal quotation marks and brackets omitted).

No. 12-1713 11

times about the problem but was uncomfortable

leaving voicemail messages. (R. 46-23 at 3-4.) A later

affidavit from Cloe, however, states that she did not

receive the pass until “mid October” 2008. (R. 54-1 at ¶ 4.)

Obviously, these two pieces of evidence are in tension,

although perhaps not irreconcilably so. Harmonizing

them in the light most favorable to Cloe, we will assume

that she received the pass sometime in the weeks

leading up to October 17.

On September 24, 2008—while Cloe was waiting to

receive a permit for the lot on Washington Street and

Alabama Street—Cloe’s doctor wrote a note stating

that Cloe could not walk long distances and that she

needed to park “at the City County building.” (R. 46-22

at 2.) Cloe submitted the note to the City the following

day.4 (R. 54-1 at ¶ 5.) A series of email exchanges

followed on October 17, 2008. (See R. 46-23 at 2-4.) In

those exchanges, Cloe thanked several City employees

for “work[ing] very hard to get me able to park close to

the building.” (Id. at 3.) However, Cloe also indicated

that there had been a misunderstanding and that the

4

The City claims that Cloe did not actually submit the note

until October 2008 and that she admitted as much in her

deposition. (See Appellee’s Br. at 13-14.) But the record on this

point is not as clear as the City suggests. While there is

some tension in the record, we do not think that Cloe’s dep-

osition testimony directly contradicted her later affidavit

that mentioned the September 25 date. Viewed in the light

most favorable to Cloe, the record supports the inference

that Cloe submitted the note on September 25, 2008.

12 No. 12-1713

new lot was not working out—Cloe frequently had to

park on the far side of the lot and walk almost a full

extra block to work. (Id. at 3-4.) A City employee offered

to meet to discuss alternative accommodations. (Id. at 3.)

A visitor’s parking placard for an underground lot

immediately below the City-County building became

available on November 10, 2008. (R. 46-24.) Cloe

received it the following day, along with a special

placard allowing her to park at nearby parking meters

without paying. (R. 46-1 at 55); (R. 46-25). After a while

though, it became clear that these solutions were not

adequate either—the visitor’s spots and street spots

were often full when Cloe needed to park. (R. 46-1 at 55.)

Cloe brought the problem to the City’s attention at

some point in November or December 2008. (Id. at 55-56.)

In early December 2008, another City employee left

his position, and Cloe received the departed employee’s

permanent underground parking spot. (Id.); (R. 54-1 at ¶ 5).

Cloe does not argue that the permanent parking pass

she received in December 2008 failed to meet her needs.

Instead, Cloe contends that the winding path the City

took to get there was unreasonable. There is no

reason, she claims, for the City not to have given her a

permanent parking spot immediately. The delays, in

turn, show that the City did not act reasonably to accom-

modate her disability.

We respectfully disagree. Reasonable accommoda-

tion under the ADA is a process, not a one-off event.

The process begins with the employee, who has the

initial duty to inform the employer of the disability.

No. 12-1713 13

See Sears, 417 F.3d at 803-04. Absent special circum-

stances, like a severe cognitive disability or mental illness,

see Bultemeyer v. Ft. Wayne Cmty. Schs., 100 F.3d 1281,

1285-87 (7th Cir. 1996), the employee’s initial duty re-

quires that he or she “indicate to the employer that she

has a disability and desires an accommodation,” Sears,

417 F.3d at 803. Here, Cloe mentioned to her supervisors

that she was having trouble walking in April, but she

never specifically asked them for an accommodation

until July 2, 2008. As a result, we think that the accom-

modation process began, at the earliest, on July 2,

2008, when Cloe submitted a note from her doctor spe-

cifically requesting parking accommodations. See Ekstrand

v. Sch. Dist. of Somerset, 583 F.3d 972, 976 (7th Cir.

2009) (“our cases have consistently held that disabled

employees must make their employers aware of any

nonobvious, medically necessary accommodations with

corroborating evidence such as a doctor’s note or at

least orally relaying a statement from a doctor,” before

an employer is required to provide an accommodation).

Upon receiving an accommodation request, an em-

ployer is not required to provide the exact accommoda-

tion requested. Sears, 417 F.3d at 802. Instead, “the ADA

obligates the employer to engage with the employee in

an interactive process to determine the appropriate ac-

commodation under the circumstances.” Id. at 805

(internal quotation marks omitted). This process brings

the employee and employer together in cooperation to

“identify the employee’s precise limitations and discuss

accommodation which might enable the employee

to continue working.” Gile v. United Airlines, Inc., 213 F.3d

14 No. 12-1713

365, 373 (7th Cir. 2000). “If this process fails to lead to

reasonable accommodation of the disabled employee’s

limitations, responsibility will lie with the party that

caused the breakdown.” Sears, 417 F.3d at 805.

We do not think that the interactive process broke

down here. After being informed of Cloe’s needs, the

City provided her with parking at a lot closer to the

building. When that did not work out, it gave her a visi-

tor’s pass allowing her to park under the building

and another pass allowing her to park on the nearby

streets. And when that also did not work out, the City

gave her a permanent underground parking spot once

one opened up. This is exactly the sort of “interac-

tive process,” id. at 805, that the ADA calls for.

In retrospect, of course, it clearly would have been

easier to give Cloe a permanent underground pass at

the outset. But that is only clear in retrospect. The City

had no way of knowing that its other seemingly

reasonable accommodations—a different lot, visitor

parking, street parking—would be insufficient. And,

more importantly, once the City found out that its pro-

posed accommodations were insufficient, it acted with

reasonable speed to come up with new ones. We do not

think a reasonable jury could find these efforts unrea-

sonable. As a result, summary judgment was proper on

this claim.

2. Printer

Cloe next contends that the City took too long to give

her a printer in her office. On May 23, 2008, Cloe

No. 12-1713 15

requested that the City provide her with an in-office

printer to minimize the amount of walking she would

have to do. The record is unclear on precisely how long

it took for the printer to arrive, but Cloe’s deposition

testimony indicates that it was somewhere between

two weeks and one month. During that time, a

supervisor had to approve the request, and the City

eventually had to take a printer away from another em-

ployee to give it to Cloe.

Cloe argues that the City could have bought a new

printer or temporarily loaned one to her instead, and

the City’s failure to do so was unreasonable. But these

arguments are problematic. It is unclear whether the

City actually could have loaned her a temporary

printer—the fact that Cloe’s printer eventually had to

be taken from someone else suggests that the City did

not have a lot of extra printers lying around. As for

buying a new printer, a responsible government

is entitled to take time to evaluate alternatives before

spending taxpayer money. In any event, “[i]t is the em-

ployer’s prerogative to choose a reasonable accommoda-

tion; an employer is not required to provide the

particular accommodation that an employee requests.”

Id. at 802. The question, therefore, is not whether the

City could have chosen another reasonable accommoda-

tion, but rather whether the City’s chosen accommoda-

tion was reasonable, in light of all of the facts. We do

not think a reasonable jury could find that the delay

here in tracking down a new piece of equipment was

unreasonable. As a result, summary judgment was

proper on this claim as well.

16 No. 12-1713

3. Proofreading help

Finally, Cloe argues that her mistake-prone written

work was, in part, a symptom of her disability. The

City, she further argues, did not provide enough help

with proofreading her work. While Winfield did

require Cloe to submit her work for proofreading,

Winfield was rarely around, and so Cloe was rarely

able to get her work double-checked. Without this proof-

reading, Cloe’s written work remained uncorrected

and eventually became one of the City’s reasons for

her termination.

This claim cannot succeed, however, because Cloe

has not provided any evidence that she asked for an

accommodation regarding her written work. As dis-

cussed, an employee generally has an initial duty to tell

her employer that she needs an accommodation. See

Fleishman, 698 F.3d at 608; Sears, 417 F.3d at 803. Here,

nothing in the record indicates that Cloe ever told

the City that her poor written work was related to her

disability or that she required an accommodation for

it. Nor does Cloe argue that a mental disability or some

other condition, see Bultemeyer, 100 F.3d at 1285-87,

excused her from her duty to ask for an accommodation.

As a result, summary judgment was proper on this

claim, too.

B. Retaliation

We turn next to Cloe’s claim that the City retaliated

against her. In addition to requiring reasonable accom-

No. 12-1713 17

modations, the ADA also protects employees from

being retaliated against for asserting their ADA rights.

42 U.S.C. § 12203(a). A plaintiff may proceed under

either the “direct” or “indirect” method of proof to estab-

lish a retaliation claim. Dickerson v. Bd. of Trs. of Cmty.

Coll. Dist. No. 522, 657 F.3d 595, 601 (7th Cir. 2011). Cloe

has chosen to proceed under the direct method. (See

Appellant’s Br. at 21.) Accordingly, she must show that

(1) she engaged in a statutorily protected activity;

(2) she suffered an adverse action; and (3) there is a

causal connection between the two. See Dickerson, 657

F.3d at 601. Both sides agree that Cloe engaged in

protected activity (requesting accommodations for her

disability) and that she suffered an adverse employ-

ment action (termination). The question, then, is

whether a reasonable jury could infer a causal link

between the two.

We think so. To show causation under the direct

method, Cloe must provide evidence that her requests

for accommodations were a “substantial or motivating

factor” for her termination. Smith v. Bray, 681 F.3d 888,

900 (7th Cir. 2012). The easiest way to do that is to

present a direct admission of retaliatory motive. See

Coleman v. Donahoe, 667 F.3d 835, 860 (7th Cir. 2012). For

obvious reasons, that sort of admission is rare, and it

did not happen here. The other way to show causation

is “by presenting a convincing mosaic of circumstantial

evidence that would support the inference that a retalia-

tory animus was at work.” Bray, 681 F.3d at 901 (internal

quotation marks omitted). The pieces of that mosaic

generally fall into three categories. Id. The first includes

18 No. 12-1713

“suspicious timing, ambiguous statements oral or

written, and other bits and pieces from which an

inference of retaliatory intent might be drawn.”

Id. (internal ellipsis omitted). The second is “evidence,

but not necessarily rigorous statistical evidence, that

similarly situated employees were treated differently.”

Id. And the third is “evidence that the employer

offered a pretextual reason for an adverse employment

action.” Id.

Viewing the evidence in the light most favorable to

Cloe, we think that a reasonable jury could infer a

causal link between her termination and her exercise of

her ADA rights. A supervisor recommended Cloe’s

termination on June 11, 2009, (R. 46-35), and the City

accepted that recommendation the June 29, 2009, (R. 46-

36). For reasons that escape us, the City’s motion for

summary judgment did not explain who decided to

terminate Cloe and why he or she did so. The “Person-

nel Action Request” that apparently terminated Cloe

does not specify the reason for her termination; instead,

it instructs the reader to “see attached documentation”

that the City did not provide. (Id.) Nevertheless, we

think it reasonable to infer that Winfield’s May 4, 2009

discipline of Cloe played a significant part.

That discipline arose from Cloe’s actions during the

emergency demolition on April 9, 2009. And that dis-

cipline was fishy, if Cloe’s evidence is to be believed.

To begin, there is at least some evidence that the

discipline was unwarranted—while Winfield described

Cloe’s actions on April 9 as insubordinate, Cloe presented

No. 12-1713 19

evidence that she was simply following orders from

another supervisor. Moreover, there is evidence that the

discipline may have been motivated by hostility towards

Cloe’s disability. About a week before the May 4, 2009

discipline, Cloe

had a meeting with Winfield and Janna Mays

in which [she] told Winfield and Mays that [she]

had to leave early because [she] had a doctor’s

appointment. Winfield and Mays expressed

anger at [Cloe] for having to leave early. Within

a week after this incident, when Winfield’s super-

visor Mays returned from her honeymoon, [Cloe]

was written up for the [April 9, 2009 demolition].

(R. 65-2 at 1.)5 These comments echo other comments

about Cloe’s disability. Starting as early as January

2009, Winfield (and Jennefer Fultz, the Department Ad-

ministrator) had played down the seriousness of

Cloe’s condition. According to Cloe’s affidavit, Fultz

“made the following comment to me: ‘you are fine. I have

a friend who has MS and does everything.’ Michelle

Winfield . . . likewise made similar comments in which

she indicated that my medical condition was not serious

and did not affect my ability to work.” (Id.) While none

of these comments explicitly admits retaliatory intent, a

5

The City argues that there is no direct evidence that the

medical appointment at issue was disability-related. That is

true, but we think it is fair to infer as much at the sum-

mary judgment stage, particularly given the wide range

of symptoms of Cloe’s condition.

20 No. 12-1713

reasonable jury could certainly read them as evidence

of hostility towards Cloe’s accommodation requests.

Finally, the timing of the discipline itself was suspi-

cious. And, while suspicious timing will rarely suggest

a causal connection on its own, it can form part of a

“convincing mosaic” when it is paired with other cir-

cumstantial evidence. Harper, 687 F.3d at 308; Bray,

681 F.3d at 901. We think that is the case here. Cloe’s

alleged misconduct happened on April 9, 2009, but

she was not actually disciplined until May 4, 2009.

That month-long lapse of time contrasts with prior dis-

ciplinary write-ups. When Cloe did not finish her

January 29, 2009 project on time, for instance, she was

disciplined just a few days later on February 2, 2009.

Furthermore, the suspicious May 4 discipline took place

only about a week after Winfield and Mays expressed

anger at Cloe leaving for a medical appointment.

That close temporal connection, combined with all of

Cloe’s other evidence, could support an inference that

Cloe’s need for medical accommodations—and not her

actions on April 9—was the real reason behind her disci-

pline and termination. Taken together, we think that

Cloe has provided enough evidence of “suspicious

timing,” “ambiguous statements,” and “other bits and

pieces from which an inference of retaliatory intent

might be drawn” to convince a reasonable jury. Bray,

681 F.3d at 901. Accordingly, we think that Cloe has

made enough of a showing to avoid summary judgment

on her retaliation claim.

No. 12-1713 21

C. Discrimination

Finally, we turn to Cloe’s claim for discriminatory

termination under the ADA. The City argues that Cloe

has not provided enough evidence of discrimination to

survive summary judgment. Cloe argues that the City

forfeited this argument by failing to raise it in the

district court.6 The district court agreed with the City.

After carefully reviewing the record, we think that

Cloe has the better argument.

The ADA forbids employers from discriminating

against disabled employees. 42 U.S.C. § 12112(a). There

are two ways of proving a discrimination claim under

the ADA: the “direct” method and the “indirect”

method. Dickerson, 657 F.3d at 601. Cloe chose to

proceed under the indirect method in the district court,

(R. 54 at 12), and in her opening brief in this court, (Ap-

pellant’s Br. at 15). Under this method, Cloe must

first establish a prima facie case of discrimination by

6

The parties frame their case in terms of waiver, but we think

forfeiture more accurately describes what is at issue here.

Our cases have sometimes blurred the distinction between

waiver and forfeiture. See Alioto v. Town of Lisbon, 651 F.3d

715, 719 n.1 (7th Cir. 2011) (“Consistent with our precedent,

we use the word waive, although forfeit is perhaps the more

accurate term.”). Nevertheless, the concepts are distinct.

“[W]aiver occurs when a defendant intentionally relinquishes

or abandons a known right, whereas forfeiture occurs when

a defendant fails to timely assert his rights.” United States v.

Gaona, 697 F.3d 638, 641 (7th Cir. 2012). Accordingly, we

will use the term “forfeiture.”

22 No. 12-1713

showing that (1) she is disabled under the ADA; (2) she

was meeting her employer’s legitimate employment

expectations; (3) she suffered an adverse employment

action; and (4) similarly situated employees without a

disability were treated more favorably. Dickerson, 657

F.3d at 601. “Once a plaintiff has established a prima

facie case, the defendant must identify a legitimate,

non-discriminatory reason for its employment decision.”

Id. “If the defendant satisfies this requirement, the

plaintiff must then prove by a preponderance of the

evidence that the defendant’s reasons are pretextual.” Id.

The district court held that Cloe could not show that

the City’s reasons for firing her were pretextual.

However, as Cloe correctly points out, the City did not

raise this argument in support of its motion for sum-

mary judgment. Indeed, the City’s brief in support of

summary judgment did not mention wrongful termina-

tion at all. Instead, the City argued only that it did not

discriminate against Cloe when it required her to

submit medical certifications. (R. 45 at 21-25.) As a

result, Cloe contends that the City forfeited the

pretext issue and that it was a mistake for the district

court to rule on that basis. See Anderson v. Gulf Stream

Coach, Inc., 662 F.3d 775, 783 (7th Cir. 2011) (defendant

forfeited argument by failing to raise it in its motion

for summary judgment).

We think that Cloe is correct. “As a general matter, if

the moving party does not raise an issue in support of

its motion for summary judgment, the nonmoving party

is not required to present evidence on that point, and the

No. 12-1713 23

district court should not rely on that ground in its deci-

sion.” Sublett v. John Wiley & Sons, Inc., 463 F.3d 731, 736

(7th Cir. 2006); accord Costello v. Grundon, 651 F.3d 614,

635 (7th Cir. 2011). There is an exception to this rule: “A

district court may enter summary judgment sua sponte

on an issue not explicitly argued if the losing party is

on notice that she has to come forward with all of her

evidence.” Kellar v. Summit Seating Inc., 664 F.3d 169,

174 (7th Cir. 2011); accord Celotex Corp. v. Catrett, 477 U.S.

317, 326 (1986). But we do not think that this exception

applies here. While some of Cloe’s arguments in the

district court might have also been relevant to the

pretext question, (see, e.g., R. 54 at 13) (“the disciplinary

action[s] taken against Cloe which led to her termina-

tion were fabricated”), Cloe never used the word “pretext”

nor couched any of her arguments in “pretext” terms.

To the contrary, Cloe argued that she had “established

her prima facie case which should be sufficient to avoid

summary judgment” and that the City had “not yet

articulated a legitimate, non-discriminatory reason for

its employment action.” (R. 54 at 15.) That language

suggests Cloe did not address pretext, at least not fully.

After all, a plaintiff does not have to address pretext

until the defendant articulates a legitimate, non-discrimi-

natory reason for his or her actions. See Good v. Univ. of

Chi. Med. Ctr., 673 F.3d 670, 679 (7th Cir. 2012). Thus,

it is unclear whether Cloe was “on notice,” Kellar, 664

F.3d at 174, that the district court might decide her case

on the basis of pretext. As a result, we think that it was

a mistake for the district court to grant summary judg-

ment on those grounds.

24 No. 12-1713

So what should we do with Cloe’s discriminatory

termination claim? Cloe insists that we must send the

case back to the district court. The City, on the

other hand, argues that, even without addressing

pretext, we can decide the case because Cloe did not

provide enough evidence to support her prima

facie case. Specifically, the City contents that Cloe has

not shown (1) that her performance was satisfactory, or

(2) that similarly situated employees were treated

better than her.

Given the path this case took through the district

court, we think that a remand is better. While the

support in the record for some of Cloe’s claims is sparse,

the record might look very different without the City’s

forfeiture. Discovery did not close until after the City

moved for summary judgment.7 If the City had presented

its arguments at that time, Cloe might well have pro-

vided new evidence to counter them. Perhaps Cloe has

other evidence that she simply did not present because

it was not relevant to the City’s motion. Or perhaps

Cloe could have used the still-open discovery period

to seek out new evidence to meet the City’s objections.

7

The City moved for summary judgment on September 26,

2011. (R. 44.) An October 14, 2011 minute order indicates

that discovery was complete as of October 13, 2011. (R. 48.)

Another minute order indicates that the parties were still

discussing discovery as late as January 9, 2012. (R. 61.) Either

way, the record clearly indicates that discovery did not

close until after the City moved for summary judgment.

No. 12-1713 25

But a “nonmovant is not required to present evidence

on an issue not raised by the movant.” Costello, 651 F.3d

at 635. And, as discussed, the City’s brief in support of

summary judgment did not put Cloe on notice that

her discriminatory termination claim would be at issue.

As a result, the City’s failure to raise its arguments

below may have prevented Cloe from fully presenting

her evidence. Accordingly, remand is appropriate.

The City raises two arguments to the contrary, but

neither is persuasive. First, the City contends that “the

vagueness of the Complaint” and “the non-specificity

of Cloe’s deposition testimony” should excuse the City’s

forfeiture. (Appellee’s Br. at 26.) But the Federal Rules

of Civil Procedure have ways of dealing with vague

complaints, including motions for a more definite state-

ment, Fed. R. Civ. P. 12(e), and motions to dismiss

for failure to state a claim, Fed. R. Civ. P. 12(b)(6). The

City declined to use either of these tools, so we do not

think that any purported vagueness in Cloe’s com-

plaint excuses the forfeiture here.

Second, the City argues that any forfeiture was

harmless because Cloe briefed the wrongful termina-

tion issue in the district court despite the City’s waiver.

Specifically, Cloe argued that she established a prima

facie case of discriminatory termination (even though, as

discussed, she did not address pretext). And, the City

notes, a district court is free to grant summary judgment

on issues not raised by the parties, “so long as the losing

party was on notice that she had to come forward with

all of her evidence.” Celotex, 477 U.S. at 326; accord

26 No. 12-1713

Kellar, 664 F.3d at 174. Because Cloe discussed her

prima facie case, the City argues that she cannot show

prejudice from the City’s lack of notice, and she

therefore had the functional equivalent of an oppor-

tunity to come forward with all of her evidence. As

a result, the City concludes that we can affirm based

on Cloe’s supposed inability to state a prima facie case.

We are not convinced. Cloe relied primarily on for-

feiture when discussing her discriminatory termination

claims in the district court. (See R. 54 at 12-13.) True,

she also argued, in an abundance of caution, that she

had satisfied her prima facie case. (Id. at 13.) But we

do not think it fair to hold that fact against her,

particularly given that (1) the City failed to move for

summary judgment on that basis; and (2) that failure

may have denied Cloe the opportunity to place

additional evidence of discriminatory termination in

the record. We do not know whether Cloe will

eventually be able to show a triable issue of fact

regarding discriminatory termination. But she deserves

the chance make that showing fairly, with notice, and

with a full opportunity to present her evidence.

III. C ONCLUSION

For the foregoing reasons, we A FFIRM the district

court’s grant of summary judgment on Cloe’s rea-

sonable accommodation claims. We R EVERSE the district

court’s grant of summary judgment on Cloe’s discrim-

ination and retaliation claims, and R EMAND for further

proceedings consistent with this opinion. The parties

shall bear their own costs of appeal.

No. 12-1713 27

H AMILTON, Circuit Judge. I join fully in Judge Kanne’s

opinion for the panel. I write separately to note that the

employer’s unusual presentation of its motion for sum-

mary judgment in this case has highlighted an often

overlooked aspect of the McDonnell Douglas method

of indirect proof of employment discrimination: The

plaintiff-employee cannot be expected to identify sim-

ilarly situated comparators until the employer has

identified its decision-maker and articulated its reason

for the adverse employment decision.

The three basic steps of the McDonnell Douglas method

are familiar: (1) the plaintiff-employee offers evidence of

a prima facie case, which includes identifying one or

more similarly-situated employees; (2) the employer

states a legitimate, non-discriminatory reason for its

decision; and (3) the plaintiff-employee tries to show the

employer’s stated reason is a pretext, allowing for an

inference of unlawful motive. E.g., St. Mary’s Honor Center

v. Hicks, 509 U.S. 502, 506-07 (1993), citing McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973).

The odd thing about the employer’s motion for sum-

mary judgment in this case is that it failed to offer a

lawful reason for the employer’s decision to fire the

plaintiff. The motion also contained no affidavit from

any official stating that he or she made the decision to

fire the plaintiff and stating the reason for the decision.

The motion was therefore flawed from the start. See

Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248,

255 & n.9 (1981) (at second step of McDonnell Douglas

method, “the defendant must clearly set forth, through

28 No. 12-1713

the introduction of admissible evidence, the reasons for

the plaintiff’s rejection”).

In the absence of an identified decision-maker and

reason, the plaintiff-employee could not be expected

to identify comparator employees — people situated sim-

ilarly to her but outside the legally protected group.

The reason is that the plaintiff cannot know who

might have been similarly situated without knowing

the identity of the decision-maker and the reason the

employer relies upon for the decision.

One case that illustrates this relationship is Coleman

v. Donahoe, 667 F.3d 835 (7th Cir. 2012). In reversing

summary judgment for the employer, we explained that

the identity of the decision-maker was important in

evaluating proposed comparators. Id. at 847-48. We also

explained that the employer’s stated reason for firing

the plaintiff in that case was vital in evaluating whether

proposed comparators were truly comparable. Id. at 849-

50, citing Eaton v. Indiana Dep’t of Corrections, 657 F.3d

551, 559 (7th Cir. 2011). The identity of the decision-

maker and the employer’s stated reason for firing the

plaintiff can come only from the employer. This logical

dependence therefore has implications not only for what

is needed in a motion for summary judgment, but also

for the sequence of discovery in some employment dis-

crimination cases where the McDonnell Douglas method

may be used.

This logical dependence of the comparator element of

the prima facie case on the identity of the employer’s

decision-maker and stated reason means that the

No. 12-1713 29

intricate steps of what Judge Wood described as

McDonnell Douglas’s “allemande worthy of the 16th

century,” Coleman, 667 F.3d at 863 (Wood, J., concurring),

do not always follow the linear sequence that court opin-

ions usually describe. That is why some other circuits

consider comparator evidence at the pretext phase of

the McDonnell Douglas method rather than as part of the

prima facie case. See Coleman, 667 F.3d at 859 & n.7,

citing Rioux v. City of Atlanta, 520 F.3d 1269, 1277 (11th

Cir. 2008); Conward v. Cambridge School Comm., 171 F.3d

12, 19, (1st Cir. 1999); Deborah C. Malamud, The Last

Minuet: Disparate Treatment after Hicks, 93 Mich. L. Rev.

2229, 2293 (1995). We need not sort out these differences

in approach for now. The important thing is that we

recognize that the comparator analysis, like the pretext

analysis, depends on the identity of the decision-maker

and the employer’s stated reason for making the chal-

lenged decision.

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