Date: 08-17-2018

Case Style:

Case Number: 17-3159

Judge: Kanne

Court: United States Court of Appeals for the Seventh Circuit on appeal from the Northern District of Illinois (Cook County)

Plaintiff's Attorney: Jeff Jacobson

Defendant's Attorney: Paul Francis Bruckner amd Gregory E. Vaci

Description: Eric Koty, a deputy in the DuPage
County Sheriff’s Department, requested a different model of
squad car. Notes from Koty’s physician indicated Koty
should be given a squad car with more legroom, “like an
SUV,” to accommodate a hip condition. The Department denied
Koty’s requests. Koty then submitted EEOC complaints
alleging the Department had discriminated against him in violation
of the Americans with Disabilities Act (“ADA”).
2 No. 17‐3159
Shortly thereafter, the Department reassigned Koty to courthouse
duty, for which he would not need to drive a squad car.
Koty then sued DuPage County alleging that the Department
violated the ADA when it denied his request for an SUV and
that the Department wrongfully retaliated against him for
making the EEOC complaint. The district court found no such
violations and granted summary judgment for the County.
For the reasons that follow, we affirm.
I. BACKGROUND
Koty first requested an SUV in January 2014, and then
against the next month. This second request was accompanied
by a letter from Koty’s physician stating that, “if available
… a squad car with more legroom, like an SUV, would be
preferable.”(R. 58‐7 at 2.) In response, employees of the Sheriff’s
Department measured the legroom in Koty’s current
squad car, a Crown Victoria, and in an SUV owned by the Department.
The Department determined the SUV offered no
additional legroom (though Koty contends the wrong measurements
were considered) and denied Koty’s requests.
On April 7, Koty submitted another letter from his physician
that explained that “a squad car with more legroom, like
an SUV, [was] necessary” to alleviate Koty’s hip pain. (R. 58‐
6 at 2.) The letter further stated that Koty was otherwise entirely
capable of fulfilling his job requirements. (Id.) The request
and letter were accompanied by an EEOC complaint alleging
discrimination under the ADA. The following day, the
Department reassigned Koty to courthouse duty, which required
no time in a squad car.
While on courthouse duty, Koty was temporarily taken off
active special operations duty. During this time, he missed a
No. 17‐3159 3
few training exercises, but no special operations missions. He
was also asked to submit a plan for securing his weapons in
his personal vehicle before returning to active duty.
Eventually, Koty had hip surgery. After the operation, he
returned to courthouse duty. He applied for and was granted
a transfer back to the law enforcement unit, where he was initially
assigned to the midnight shift, then to his original daytime
shift.
Koty sued, alleging the Department failed to provide reasonable
accommodations pursuant to the ADA. He also alleged
the Department retaliated against him for filing the
EEOC complaint. The district court dismissed the accommodation
claim after finding Koty did not qualify as “disabled”
under the ADA. The district court then granted summary
judgment for the county on Koty’s retaliation claim, concluding
the Department had taken no adverse employment actions
against Koty.
II. ANALYSIS
Koty appeals the judgment of the district court as to both
claims. We review de novo the district court’s dismissal of a
claim pursuant to FED. R. CIV. P. 12(b)(6) and the district
court’s grant of summary judgment. Williams v. Seniff, 342
F.3d 774, 781 (7th Cir. 2003).
A. The district court did not err when it dismissed Koty’s accommodation
claim.
To bring a claim under the ADA, the plaintiff must allege
that they are disabled. Gogos v. AMS Mech. Sys., Inc., 737 F.3d
1170, 1172 (7th Cir. 2013). The Act defines a “disability” as “a
physical or mental impairment that substantially limits one or
more major life activities of [an] individual,” “a record of such
4 No. 17‐3159
an impairment,” or “being regarded as having such an impairment.”
42 U.S.C. § 12102(1). Koty’s complaint states that
he had a “femoral hip impingement with torn labrum among
other medical disability” and that “[t]he pain is aggravated by
[a]ssigned [v]ehicle,” but contains no allegation that the injury
affected any major life activity. (R. 1 at 2.)
While the inability to drive has been found in some cases
to affect a major life activity, see Winsley v. Cook County, 563
F.3d 598, 604 (7th Cir. 2009), all Koty alleges here is that he is
unable to drive one model of vehicle. This is not a disability
as defined in the Act. Because Koty failed to allege he had a
disability, the district court was correct to dismiss his accommodation
claim.
B. The district court did not err when it granted summary
judgment in favor of the County on Koty’s retaliation claim.
Perhaps knowing that his accommodation claim was
doomed, Koty has focused on appeal on the grant of summary
judgment for the County on his retaliation claim. Summary
judgment is appropriate 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).
“Employers are forbidden from retaliating against employees
who raise ADA claims regardless of whether the initial
claims of discrimination are meritless.” Dickerson v. Bd. of
Trs. of Cmty. Coll. Dist. No. 522, 657 F.3d 595, 601 (7th Cir.
2011). To prove a retaliation claim, a plaintiff must prove “(1)
he engaged in a statutorily protected activity; (2) he suffered
an adverse action; and (3) a causal connection between the
two.” Id. If this initial burden is satisfied, “the burden then
shifts to the defendant to present a non‐invidious reason for
No. 17‐3159 5
the adverse employment action.” Id. at 602. “If the defendant
meets this burden, the plaintiff must then demonstrate that
the defendant’s proffered reason was pretextual.” Id. “[P]retext
‘involves more than just faulty reasoning or mistaken
judgment on the part of the employer; it is [a] lie, specifically
a phony reason for some action.’” Burton v. Bd. of Regents, 851
F.3d 690, 698 (7th Cir. 2017) (quoting Harden v. Marion Cty.
Sheriff’s Dept., 799 F.3d 857, 864 (7th Cir. 2015)).
Here, there is no dispute that submitting an EEOC charge
is a statutorily protected activity. The parties do dispute, however,
whether the actions taken were materially adverse or
were mere pretext for retaliation. An action is materially adverse
if “a reasonable employee … would be dissuaded from
engaging in the protected activity.” Roney v. Ill. Dep’t of Trans.,
474 F.3d 455, 461 (7th Cir. 2007). What is considered adverse
depends on the circumstances of each case, Burlington Northern
& Santa Fe Ry. Co. v. White, 548 U.S. 53, 69 (2006), but examples
include “termination of employment, a demotion evidenced
by a decrease in wage or salary, a less distinguished
title, a material loss of benefits, [and] significantly diminished
material responsibilities.” Barton v. Zimmer, Inc., 662 F.3d 448,
456 (7th Cir. 2011) (quoting Crady v. Liberty Nat’l Bank & Trust
Co. of Ind., 993 F.2d 132, 136 (7th Cir. 1993)). Koty alleges that
several acts by the Department were taken to retaliate against
him for filing the EEOC complaint, and that the Department’s
proffered reasons for taking these actions are mere pretext for
discrimination.
First, Koty alleges the County retaliated against him when
it transferred him from law enforcement to courthouse duty.
Typically, lateral moves are not considered adverse employment
actions. See Stephans v. Erickson, 569 F.3d 779, 790–91 (7th
6 No. 17‐3159
Cir. 2009); Washington v. Ill. Dept. of Revenue, 420 F.3d 658, 661
(7th Cir. 2005). “Our decisions involving a transfer or reassignment
of job responsibilities indicate that such an action is
not materially adverse unless it represents a significant alteration
to the employeeʹs duties, which is often reflected by a corresponding
change in work hours, compensation, or career
prospects.” Stephans, 569 F.3d at 791. Reassignments to less
prestigious positions have also been considered adverse. See
e.g. Burlington Northern & Santa Fe Ry. Co., 548 U.S. at 71.
The transfer here did not result in a pay decrease, other
than Koty’s diminished opportunity for overtime pay. Koty
did offer some evidence that courthouse duty is considered
less prestigious—two officers testified that being assigned
courthouse duty was considered punishment. However, Koty
conceded he knew a transfer to courthouse duty was a potential
way for the Department to accommodate his hip pain, an
accommodation he requested. “It is the employer’s prerogative
to choose a reasonable accommodation,” Jay v. Internet
Wagner, Inc., 233 F.3d 1014, 1017 (7th 2000), and the Department’s
decision to accommodate Koty’s request in a way
other than what he requested was not an adverse employment
action. See Hancock v. Potter, 531 F.3d 474, 478–79 (7th
Cir. 2008) (concluding actions taken by the employer to try to
accommodate the employee’s work restrictions were not adverse).
Furthermore, Koty cannot show the Department’s explanation
that the transfer was made to accommodate his pain
was pretext for retaliation. See Serino v. Potter, 178 Fed. Appx.
552, 556 (7th Cir. 2006) (concluding a transfer made to accommodate
the employee’s needs, even if considered adverse,
was not discriminatory).
No. 17‐3159 7
Second, Koty alleges the County retaliated against him
when it temporarily removed him from active special operations
duty. In a letter, the chief of the Department explained
that Koty was placed on inactive status because he was transferred
to courthouse duty. As a condition of his return to active
status, Koty was required to submit a plan for safely storing
his weapons in his personal vehicle while at the courthouse.
Koty contends no one else was required to submit such
a plan.
Like the district court, we fail to see how the temporary
move to inactive status and requirement to submit a plan constitute
an adverse employment action. Even as an active member,
Koty only participated in special operations assignments
occasionally. While on inactive status, his pay was not diminished
and he missed only a few training exercises. Koty failed
to present evidence that the temporary move to inactive status
would cause him any career setbacks. Instead, all of the
evidence in the record supports the County’s explanation that
the move to inactive status and plan requirement were logical
effects of the reassignment to courthouse duty, not pretext for
retaliation.
Third, Koty alleges the County retaliated against him
when it required him to return to courthouse duty following
his medical leave. But the County explained that Department
policy requires all employees to return to the duty they were
performing before they left when they return from leave. Koty
offered no evidence that this explanation is pretextual.
Finally, Koty claims the County retaliated against him
when it assigned him to the midnight shift after he requested
and was granted a transfer back to law enforcement duty.
Changing an employee’s shift is generally not considered a
8 No. 17‐3159
materially adverse employment action unless the change results
in a change in pay or prestige or is particularly harmful
to that employee. See Burlington Northern and Santa Fe Ry. Co.,
548 U.S. at 69 (citing Washington, 420 F.3d at 662–63). While
the midnight shift may have been less desirable than Koty’s
original daytime shift, he offered no evidence that the change
affected his pay or prestige or that there was some unique circumstance
in his case.
In sum, Koty provided no evidence that any of these actions,
taken alone or cumulatively, were the type that would
dissuade an employee from exercising his rights. And even if
one was convinced the County took some adverse action,
Koty could not show that the County’s explanation—that all
these actions were the logical effects of accommodating
Koty’s hip pain caused by driving his squad car—was pretext.
So, the district court did not err in granting summary judgment
for the County on this claim.

Outcome: For these reasons, we AFFIRM the judgment of the district
court.

Plaintiff's Experts:

Defendant's Experts:

Comments: