In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3143
D ARRELL L YNN M ILLER,
Plaintiff-Appellant,
v.
ILLINOIS D EPARTMENT OF T RANSPORTATION,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 3:07-cv-00677—William D. Stiehl, Judge.
A RGUED A UGUST 4, 2010—D ECIDED M AY 10, 2011
Before P OSNER, R OVNER, and H AMILTON, Circuit Judges.
H AMILTON, Circuit Judge. Plaintiff-appellant Darrell
Miller worked for five years for defendant-appellee
Illinois Department of Transportation (IDOT) as a
highway maintainer on a bridge crew. He was fired in
June 2007 and then filed this suit alleging discrimina-
tion and retaliation in violation of the Americans with
Disabilities Act (ADA), 42 U.S.C. § 12101 et seq. The district
court granted summary judgment for IDOT. We reverse.
2 No. 09-3143
Miller has presented evidence from which a reasonable
jury could conclude that IDOT regarded him as disabled
because of his fear of heights. Miller has also presented
evidence that would allow a reasonable jury to find that
he could perform the essential functions of his job with
reasonable accommodations. Finally, we conclude that
there are genuine issues of material fact concerning
IDOT’s stated reasons for firing Miller.
I. Relevant Facts and Proceedings
Because we review a grant of summary judgment, we
must consider the evidence in the light most favorable
to Miller, the non-moving party. We must give him the
benefit of any conflicts in the evidence and any rea-
sonable inferences that might be drawn in his favor.
E.g., Winsley v. Cook County, 563 F.3d 598, 602-03 (7th Cir.
2009).
Miller began working for IDOT in 2002 and was
assigned to the bridge crew based in Dongola, Illinois,
near the southern tip of the state. A bridge technician
and four other highway maintainers were also assigned
to the same crew. As a highway maintainer assigned to
a bridge crew, Miller was responsible for a variety of
tasks, many of which could be performed from the
ground. Those tasks included operating and repairing
maintenance vehicles and equipment, including trucks,
pavement marking equipment, tractors, mowers, snow
plows, and jack hammers; maintaining large cul-
verts, abutments, guardrails, and drainage installations;
spreading salt, sand, gravel, and asphalt; directing traffic
No. 09-3143 3
during maintenance operations; cutting grass, weeds, and
brush; repairing signs and digging post holes; cleaning
and maintaining the crew’s headquarters; disposing of
trash and highway debris; and record-keeping. Some of
the bridge work, of course, required working at some
height above the ground or water. The highway
maintainers on the bridge crew also had to chip, seal,
and clean bridges, and clean and paint bridge bearings.
From the outset of his employment, Miller had
occasional difficulty working from heights, particularly
when he worked in an unsecured environment. When
he began work he had not been formally diagnosed
with acrophobia, but Miller informed IDOT and the
lead worker of his bridge team, Steve Maurizio, that he
had a fear of some heights and that there were a few
tasks that he would not be able to do. Specifically, he
informed Maurizio that he would not be able to “walk
a bridge beam.” In spite of his fear, Miller was able to
perform work in an elevated, hydraulically lifted
“snooper bucket” at heights of up to 80 feet, and he was
able to crawl on the arch of a bridge on a catwalk. He
estimated that his fear would be triggered and he
would have problems with less than three percent of his
job description, but even then he was able to complete
his assigned tasks on all but one occasion.
Until early 2006, IDOT informally accommodated
Miller by allowing other members of his team to
handle those tasks for him, just as other team members’
conditions or limitations were accommodated. For ex-
ample, Maurizio was unable to weld. Another co-worker
4 No. 09-3143
refused to ride in the snooper bucket, was not required
to climb the arches of an interstate bridge linking Illinois
to Kentucky, was unable to spray bridges because of
his allergies, was not required to mow the yard, and
was not required to rake patching debris. Other crew
members would swap assignments as needed to enable
the crew to complete those tasks. In short, the evidence
would allow a jury to find that the team worked effec-
tively as a team, taking advantage of each member’s
abilities and accommodating each member’s limitations.
Miller worked successfully as a highway maintainer
on the bridge crew without incident for several years.
Then, on March 10, 2006, Miller’s crew was working on
a bridge in Marion, Illinois. The crew was installing
pieces of plywood underneath the bridge as a protective
shield to protect the road below from falling pieces
of concrete. The crew’s bridge technician, Kenneth
Greenlee, assigned Miller to go up in a snooper bucket
from which he would nail wood beams to the bridge
flanges and then nail plywood sheets to the beams. This
assignment required Miller to unhook his lifeline and
work unsecured. He completed his assigned task, but
he later filed a grievance because he believed he had
been ordered to perform an unsafe task.
Less than two weeks later, on March 23, 2006, Miller’s
bridge crew was changing light bulbs on a bridge that
crosses the Mississippi River. Crew leader Maurizio
assigned Miller and another crew member to “go over
the edge” of the bridge to change the navigation light
bulbs directly above the river. Miller had to climb down
No. 09-3143 5
a ladder on the side of the bridge to reach the station
that held the light fixtures. Some of the stations would
have required him to stand on a bridge beam while
wearing a lifeline. When Miller attempted to change a
bulb that would have required him to stand on a
bridge beam, he was unable to complete the task. He
suffered a panic attack and was taken by ambulance
to a hospital. That was the first, last, and only time
Miller was unable to complete an assigned task be-
cause of his fear of heights.
IDOT’s response to that incident is central to whether
it regarded Miller as disabled. IDOT placed Miller on
sick leave and ordered him to submit to a fitness-for-
duty examination. IDOT’s examiner, Dr. Byron Gorton,
diagnosed Miller with acrophobia and concluded that
he was unfit to work as a highway maintainer. An
IDOT administrator told Miller that he needed to
request non-occupational disability status or he would
“get nothing.” Miller made the request, and IDOT placed
Miller on non-occupational disability status on June 23,
2006.
Miller described his limitation as being unable to work
at heights above 20 to 25 feet in an exposed, extreme
position. IDOT documents reflect that, from the time it
received Dr. Gorton’s diagnosis, it treated Miller as if
his condition imposed much more extensive limits, as if
he were unable to work above any height greater than
20 feet. A June 21, 2006 memorandum (author unknown)
to Angie Ritter, an IDOT personnel manager, explained,
describing the work required in the bridge section of
the bridge crew:
6 No. 09-3143
Working in the Bridge Section requires working
above 20’ regularly. 75% of Highway Maintainers
work time is spent working on bridge structures.
Bridge deck patching often requires full depth holes
through the deck that exposes the crew to this haz-
ard. Any work in the snooper truck, on bearings,
piers, navigation lights, chipping concrete, etc.
requires some exposure to heights. Traffic control,
brush removal and yard maintenance are also
included in the HM’s assignments that would not
normally include this exposure. However, flagging
on a bridge or clearing brush on a steep slope
could also be perceived as a height exposure.
The memorandum concluded that the traffic section
and maintenance team section of the bridge crew would
also be off-limits to someone unable to work at heights
above 20 feet.
Miller filed a grievance challenging Dr. Gorton’s con-
clusion that he was unfit to perform his duties. On July 2,
2006, Miller also filed a request for reasonable accom-
modation, requesting that he not be required to work
“on bridge beams and other extreme places over 20-25’—
Bridge piers or skeletal structures (frames) and other
places—ex. snooper bucket, etc.,” and that he be trans-
ferred from Dongola to the IDOT yard in Anna, Illinois.
In response, personnel manager Ritter told him, “I’ll
tell you right now, we don’t grant requests.”
Miller supported his grievance and request for accom-
modation with the independent evaluation of psychiatrist
Dr. William Mings, who opined that Miller could con-
No. 09-3143 7
tinue to perform the functions of his job if IDOT provided
him with the same reasonable accommodation that it
had in the past. In November 2006, the Illinois Retire-
ment System required Miller to be examined by
another psychiatrist, Dr. Klamath, who also found that
Miller was fit for work and should be returned to work
with whatever minor accommodations might be required.
Miller’s request for accommodation was formally
denied on January 16, 2007. On May 1, 2007, however,
Miller was ordered back to work, and the events of his
return are central to his retaliation claim. Miller reported
to the Carbondale District Nine IDOT office. There he
encountered Angie Ritter. Referring to Ritter, Miller then
said to another employee: “Right there is Arch enemy
Number 1. I have never hit a woman. Sometimes I would
like to knock her teeth out.” IDOT construed Miller’s
comment as a threat, informed Miller that he had been
relieved of duty, and instructed him to go home.
On June 20, 2007, Miller was formally discharged for
making a threat of violence against another employee
and for disruptive behavior. Miller grieved his discharge,
and the parties submitted to arbitration. Miller was
found to have engaged in “conduct unbecoming” but
was returned to work, without back pay or benefits, on
November 19, 2008.
Miller then filed this suit under the Americans with
Disabilities Act. He alleged that IDOT had discriminated
against him by failing to provide an accommodation
and terminating him. He also alleged that IDOT had
illegally retaliated against him for requesting an accom-
8 No. 09-3143
modation. IDOT moved for summary judgment. In re-
sponse, Miller presented evidence that Maurizio had
threatened violence against his co-workers on more
than one occasion—including one incident in which
he threatened to kill three co-workers—but unlike
Miller, was not disciplined or terminated for his behavior.
The district court granted IDOT’s motion on both
claims. The district court found that Miller’s discrimina-
tion claim could not survive because Miller’s requested
accommodation—rearranging job tasks among members
of the bridge crew—was unreasonable, and that working
at heights above 25 feet was an essential function of
Miller’s job on the bridge crew. The district court then
found that Miller’s retaliation claim failed because he
had not provided sufficient evidence that IDOT’s given
reason for terminating his employment was pretextual.
We reverse because all three of these findings are sub-
ject to genuine disputes of material facts.
II. Discussion
A. “Regarded as” Disabled
The ADA prohibits discrimination only against a
“qualified individual with a disability.” 42 U.S.C.
§ 12112(a). To succeed on his ADA claim, Miller must
demonstrate that he was protected under the Act. We
first determine whether Miller presented sufficient evi-
dence from which a reasonable jury could conclude that
he was an individual with a disability within the
meaning of the statute.
No. 09-3143 9
“Disability” is defined as (a) a physical or mental im-
pairment that substantially limits one or more of the
major life activities of an individual; (b) a record of such
an impairment; or (c) being regarded as having such
an impairment. 42 U.S.C. § 12102(2). In the district court
and on appeal, Miller has argued that he satisfies the
“regarded as” prong of the ADA definition of disability.
To satisfy that prong of the definition, Miller had to offer
evidence indicating that IDOT believed, rightly or
wrongly, that he had an impairment that substantially
limited one or more major life activities. 29 C.F.R.
§ 1630.2(l); see also Cigan v. Chippewa Falls School Dist.,
388 F.3d 331, 335 (7th Cir. 2005). IDOT had to “believe
either that [Miller had] a substantially limiting impair-
ment that [he did] not have or that [he had] a sub-
stantially limiting impairment when, in fact, the impair-
ment [was] not so limiting.” Sutton v. United Air Lines,
Inc., 527 U.S. 471, 489 (1999); see also Moore v. J.B. Hunt
Transp., Inc., 221 F.3d 944, 954 (7th Cir. 2000).
Miller argues that IDOT regarded him as substantially
limited in the major life activity of working. We have
stated that working can be a major life activity under the
ADA. See Peters v. City of Mauston, 311 F.3d 835, 843
(7th Cir. 2002). Although the Supreme Court reserved
judgment on the question, see Toyota Motor Mfg., Ky., Inc.
v. Williams, 534 U.S. 184, 200 (2002), IDOT has not asked
us to reconsider our position under the law applicable
at the relevant time.
To have been regarded as substantially limited
in his ability to work under the law in effect at the
10 No. 09-3143
relevant time, Miller must come forward with evidence
that IDOT regarded him as limited in his ability to
perform not merely one particular job but a class or
broad range of jobs. See 29 C.F.R. § 1630.2(j)(3)(i); Toyota
Motor, 534 U.S. at 200 (if working is determined to be a
major life activity under the ADA, a claimant will be
required to show “an inability to work in a broad range
of jobs”); Sutton, 527 U.S. at 493-94 (plaintiffs with
vision impairment were not “regarded as” substantially
limited in major life activity of working because they
failed to show employer regarded their impairment as
precluding them from a substantial class of jobs); Kuptas
v. City of Greenwood, 398 F.3d 609, 612-13 (7th Cir. 2005)
(following Toyota Motor); Davidson v. Midelfort Clinic, Ltd.,
133 F.3d 499, 511 (7th Cir. 1998) (under “regarded as”
theory of disability, “the employer’s perception of the
plaintiff’s inability to work” must have a breadth compara-
ble to ADA’s requirements for actual disability).1
1
Congress responded to these and similar decisions by
enacting the ADA Amendments Act of 2008, which provided,
among many important changes, that a person can satisfy
the “regarded as” definition of disability if the person “has
been subjected to an action prohibited under this Act because
of an actual or perceived physical or mental impairment
whether or not the impairment limits or is perceived to limit
a major life activity.” Pub. L. 110-325 §4, amending 42 U.S.C.
§ 12102(3)(A). The amendments did not take effect until
January 1, 2009, so we consider here the statutory and
regulatory provisions as they stood before the 2008 amend-
ments.
No. 09-3143 11
The ADA regulations call for consideration of a
number of factors in applying this test, including the
nature and severity of the perceived impairment; the
duration or expected duration of the perceived impair-
ment; and the permanent or long-term impact, or expected
permanent or long-term impact, of the impairment.
29 C.F.R. § 1630.2(j)(3)(ii). Other factors specific to the
major life activity of working include the geographical
area to which the person has reasonable access; “the
job from which the individual has been disqualified
because of an impairment, and the number and types
of jobs utilizing similar training, knowledge, skills or
abilities, within that geographical area, from which the
individual is also disqualified because of the impair-
ment;” as well as the number and types of other jobs not
utilizing similar training, knowledge, skills or abilities,
within that geographical area, from which the individual
is also disqualified because of the impairment. Id.
This was a demanding standard, but the “regarded as”
prong is an important protection that should not be
nullified by creating an impossibly high standard of
proof, as Congress indicated even more strongly in the
2008 amendments. Even under the earlier law, for
example, it is not necessary for an employee to show
that the employer consciously conducted the same sort
of full statutory analysis that a trial judge or jury would
conduct in a case of actual impairment. An employer
who is irrationally and illegally overreacting to a
perceived disability is unlikely to carry out consciously
the full ADA analysis.
12 No. 09-3143
If the employee contends he was regarded as substan-
tially impaired in the major life activity of working, he
must present evidence from which it could be inferred
that the employer regarded him as facing restrictions
that would be significant enough to restrict his ability to
meet the requirements of a substantial class of other jobs,
beyond his current job. The real problem here is one of
proof. How broadly did the employer, subjectively,
view the person’s impairment?
The Supreme Court addressed a similar problem of
subjective knowledge under the Eighth Amendment in
Farmer v. Brennan, 511 U.S. 825 (1994). The Eighth Amend-
ment prohibits prison and jail officials from acting with
“deliberate indifference” to a prisoner’s basic, minimal
needs for health and safety. In Farmer the Supreme
Court held that “deliberate indifference” refers to the
prison official’s subjective state of mind, requiring proof
that the prison “official knows of and disregards an
excessive risk to inmate health or safety; the official
must both be aware of facts from which the inference
could be drawn that a substantial risk of serious harm
exists, and he must also draw the inference.” Id. at 837.
The Farmer Court went on to explain, however, that
whether the defendant official had “the requisite knowl-
edge of a substantial risk is a question of fact subject to
demonstration in the usual ways, including inference
from circumstantial evidence.” Id. at 842. Thus, a jury
can infer that an official had actual knowledge of a
risk based on evidence that the risk was obvious. Id.
Similarly here, the issue of the employer’s subjective
perception of the degree of Miller’s impairments can be
No. 09-3143 13
addressed through circumstantial evidence, including
reasonable inferences based on the evidence of the em-
ployer’s perceptions of Miller’s impairments. Quantitative
evidence of the local job market may be helpful, as the
regulations indicate, but is not indispensable.
In this case, Miller offered sufficient evidence from
which a reasonable jury could conclude that IDOT re-
garded him as precluded from a substantial class of
jobs. When Miller began working for IDOT as a highway
maintainer on the bridge crew, and before he was
formally diagnosed with acrophobia, his supervisors
and co-workers were aware that he was unable to work
at heights in exposed positions. During the next four
years from his hire until the spring of 2006, IDOT and
Miller’s bridge crew supervisors permitted him to swap
tasks among his fellow crew members so that he could
avoid the occasional task that he was unable to do.
After the March 23, 2006 panic attack above the Missis-
sippi River, Miller was formally diagnosed with acropho-
bia. IDOT immediately precluded him from performing
any task required of the bridge crew, even tasks that
could be performed from the ground—let alone from a
secure, unexposed height. IDOT forced him on non-
occupational disability leave and exaggerated the rela-
tively modest effects of the acrophobia. Even after two
psychiatrists cleared him for work without any sig-
nificant restrictions, IDOT continued to preclude Miller
from returning to any and all tasks performed by the
bridge crew. According to the record, those tasks in-
cluded everything from the maintenance and operation
14 No. 09-3143
of vehicles and equipment to spreading salt and gravel,
cutting grass, and directing traffic. In other words, IDOT
treated Miller as though he was unable to perform a
wide range of jobs. A reasonable jury could find from
this evidence that IDOT regarded Miller as disabled by
his acrophobia under the law before the 2008 amend-
ments. We proceed to consider the other contested ele-
ments of Miller’s ADA discrimination claims.
B. Essential Function and Reasonable Accommodation
The ADA requires an employer to make reasonable
accommodations that will allow a “qualified individual
with a disability” to perform the essential functions of his
or her job. 42 U.S.C. § 12112(b)(5)(A). IDOT argues that
working above 25 feet in an extreme or exposed position
is an essential function of members of the bridge crew
and that Miller’s requested accommodation was unrea-
sonable. The district court agreed and granted summary
judgment for IDOT on this basis. Viewing the evidence
in the light reasonably most favorable to Miller, a reason-
able jury could find that such work was not an essential
function of the job and that Miller was requesting a
reasonable accommodation: after all, he was asking
only that he be allowed to work as he had worked suc-
cessfully for several years.
We first consider whether there is a genuine dispute of
fact as to whether working above 25 feet in an extreme
position was an essential function of Miller’s job as a
highway maintainer on the bridge crew. We first look to
No. 09-3143 15
the federal regulations, which instruct us to consider
the following categories of evidence:
(i) The employer’s judgment as to which functions
are essential;
(ii) Written job descriptions prepared before adver-
tising or interviewing applicants for the job;
(iii) The amount of time spent on the job performing
the function;
(iv) The consequences of not requiring the incumbent
to perform the function;
(v) The terms of a collective bargaining agreement;
(vi) The work experience of past incumbents in the
job; and/or
(vii) The current work experience of incumbents in
similar jobs.
See 29 C.F.R. § 1630.2(n)(3). Under this standard, the
employer’s judgment is an important factor, but it is not
controlling. Under factors (vi) and (vii), we also look to
evidence of the employer’s actual practices in the work-
place.
We are confident that some high work in exposed or
extreme positions is an essential function of the bridge
crew as a whole. IDOT would have us take that point
a step further to find that any individual assigned to the
bridge crew had to be able to perform each and every task
of the entire bridge crew. That would require finding
that every task required of the bridge crew as a whole
was an essential task of each bridge crew member. On
16 No. 09-3143
this record, we cannot make that finding as a matter of
law. Plaintiff has come forward with substantial evi-
dence showing that his bridge crew did not actually
work that way. The bridge crew worked as a team. No
one person was assigned permanently to any one task.
Although individual members of the team did various
tasks as needed, there was no requirement that the
bridge crew members rotate from task to task in an orga-
nized, routine fashion, such that it was necessary for
any one member of the bridge crew to be able to do
every task of the bridge crew as a whole.
Miller has presented evidence that, at least prior to
March 23, 2006, the team accommodated the various
skills, abilities, and limitations of the individual team
members by organizing itself according to those skills,
abilities, and limitations. Maurizio could not weld, so the
other members did the welding when it was required.
Another co-worker refused to ride in the snooper bucket,
so those tasks, when needed, went to others. This was
also true of bridge spraying, yard mowing, and debris
raking for a crew member with allergies.
As in other “team” environments, the individual mem-
bers took on tasks according to their capacities and abili-
ties. Here, a reasonable fact-finder would have to con-
clude that some members of the bridge crew had to be
able to work at heights in exposed or extreme positions
so that the bridge crew—as a unit—could do its job, just
as some members of the crew had to be able to weld,
ride in the snooper bucket, spray, mow, and rake. That
conclusion does not mean that the fact-finder would be
No. 09-3143 17
required to conclude that each member of the bridge
crew had to be able to do every task required of the
entire team. In terms of the regulation, the evidence of
actual experience of past and present incumbents in the
job and similar jobs conflicts with the employer’s judg-
ment about which functions are essential. See 29 C.F.R.
§ 1630.2(n)(3). On this record, a reasonable jury could
find that working at heights in an exposed or extreme
position was not an essential function for Miller as an
individual member of the bridge crew.
From this same evidence, a reasonable jury could find
that Miller’s request for accommodation—that other
members of his team substitute for him when a task
required working above 25 feet in an exposed or ex-
treme position—was reasonable. The statute provides
that the term “reasonable accommodation” may in-
clude “job restructuring, part-time or modified work
schedules, reassignment to a vacant position, acquisi-
tion or modification of equipment or devices, appropri-
ate adjustment or modifications of examinations, training
materials or policies, the provision of qualified readers
or interpreters, and other similar accommodations for
individuals with disabilities.” 42 U.S.C. § 12111(9)(B).
The ADA does not give employers unfettered discre-
tion to decide what is reasonable. The law requires an
employer to rethink its preferred practices or established
methods of operation. Employers must, at a minimum,
consider possible modifications of jobs, processes, or
tasks so as to allow an employee with a disability to
work, even where established practices or methods seem
18 No. 09-3143
to be the most efficient or serve otherwise legitimate
purposes in the workplace. See, e.g., Vande Zande v. State
of Wisconsin Dep’t of Administration, 44 F.3d 538, 542 (7th
Cir. 1995) (“It is plain enough what ‘accommodation’
means. The employer must be willing to consider making
changes in its ordinary work rules, facilities, terms, and
conditions in order to enable a disabled individual to
work.”).
When considering other work environments, we have
upheld determinations that requests for a “helper” em-
ployee and requests to rotate work tasks were unreason-
able. For instance, in Lenker v. Methodist Hospital, 210
F.3d 792 (7th Cir. 2000), a nurse with multiple sclerosis
was unable to lift patients. He requested that he be per-
mitted to use assistive devices or call for help when he
was unable to lift a patient. On review, we upheld the
jury’s verdict in favor of the employer. We found
sufficient evidence in the record from which the jury
could reasonably find (a) that assistive devices might
help to lift a patient out of bed but would not help a
patient walk down the hall or to the bathroom, and (b)
that other staff would not be able to assist at all times,
particularly in a staff shortage or a hospital emergency.
See id. at 796-97.
In another case, we upheld summary judgment
against an equipment operator who suffered a shoulder
injury and was no longer able to lift or carry anything over
fifty pounds. See Peters v. City of Mauston, 311 F.3d 835,
840 (7th Cir. 2002). That employee also requested that
his employer permit another employee to help him with
No. 09-3143 19
the lifting requirements of his job. We found that the
request was unreasonable because lifting and carrying
were essential functions of his job as an equipment opera-
tor. Making the accommodation would have required
another person to perform an essential function of the
employee’s job. See id. at 845; see also Miller v. Illinois
Department of Corrections, 107 F.3d 483, 485 (7th Cir. 1997)
(“if an employer has a legitimate reason for specifying
multiple duties for a particular job classification, duties
the occupant of the position is expected to rotate
through, a disabled employee will not be qualified for
the position unless he can perform enough of these duties
to enable a judgment that he can perform its essential
duties”) (emphasis in original); Cochrum v. Old Ben Coal
Co., 102 F.3d 908, 912 (7th Cir. 1996) (holding that em-
ployee’s request that employer hire a helper to perform
essential function was unreasonable; “hiring a helper to
perform the overhead work would mean the helper
would de facto perform [the employee’s] job. We cannot
agree that [the employee] would be performing the es-
sential functions of his job with a helper.”).
These cases teach that task reassignments within a job
can be unreasonable in situations where the reassigned
task is an essential function of the job. In those situations,
reassignment or delegation of the task would equate,
essentially, to reassignment or delegation of the job itself.
What sets this case apart from those earlier cases is
Miller’s evidence that it was in fact the normal course
for individual members of the bridge crew to substitute
and reassign tasks among themselves according to indi-
20 No. 09-3143
vidual abilities, preferences, and limitations. Miller’s re-
quest for reasonable accommodation did not ask IDOT to
do anything it was not already doing (or, at least, anything
it had not been doing up until March 2006). The record on
summary judgment, taken in the light reasonably most
favorable to Miller, does not compel a finding that
IDOT required every employee working as a highway
maintainer on a bridge crew to be able to work in an
exposed or extreme position above 25 feet in the air or
that being able to do so was an essential function of the
job. To the contrary, the record confirms that it was a
regular occurrence for individuals on the bridge team
to share and swap tasks according to their individual
capacities, abilities, and limitations. Miller’s request that
task assignments be adjusted among the bridge crew
members so that he would not be confronted with a task
requiring him to work above 25 feet in an exposed or
extreme position did not amount to a request that
another member of the team perform an essential, non-
delegable task. A jury should be permitted to consider
Miller’s actual work environment and IDOT’s past flexi-
bility in delegating tasks amongst the bridge team mem-
bers in deciding whether Miller’s request for accommoda-
tion was reasonable.2
2
We recognize that if most or all members of a bridge crew
had acrophobia like Miller’s, the crew could not perform all
of its essential duties. If and when such an extreme case might
arise, we are confident that the law would accommodate
an employer’s need to get its work done. In this case, how-
(continued...)
No. 09-3143 21
C. Retaliation
The district court also granted summary judgment for
IDOT on Miller’s ADA retaliation claim. To avoid sum-
mary judgment on his retaliation claim, Miller must
offer evidence that he engaged in protected activity, that
he was performing his job satisfactorily, and that he was
singled out for an adverse employment action that simi-
larly situated employees who did not engage in pro-
tected activity did not suffer. See Squibb v. Memorial
Medical Center, 497 F.3d 775, 788 (7th Cir. 2007); Stone v.
City of Indianapolis Public Utilities Div., 281 F.3d 640, 644
(7th Cir. 2002). The district court found that Miller
failed to demonstrate that IDOT’s stated reason for firing
him—the alleged threat against Ritter when he returned
to work—was pretextual. Here, too, we reverse.
In reviewing the evidence, we cannot second-guess
IDOT’s employment decisions to the extent that they
were innocently unwise or unfair. But Miller has
presented sufficient evidence from which a finder of fact
could genuinely call into question IDOT’s honesty. First,
a reasonable jury could find that Miller’s statement
about Ritter was not a “threat” at all, or that even if
IDOT properly construed it as such, its decision to termi-
nate Miller was a disingenuous overreaction to justify
dismissal of an annoying employee who asserted his
rights under the ADA. Miller presented evidence that
2
(...continued)
ever, the evidence showing that plaintiff had actually been
accommodated as he requested shows that the employer is
not entitled to summary judgment on this theory.
22 No. 09-3143
Maurizio himself had had a genuinely violent workplace
outburst but was not terminated, and yet Miller was
terminated for a much milder comment on his first day
back at work.3 Also, Ritter’s comment to Miller that
“we don’t grant requests” could be construed by a rea-
sonable jury as showing a general hostility to requests
for accommodation under the ADA. There is more here
than “mere temporal proximity.” Cf. Stone, 281 F.3d at
644) (noting that “mere temporal proximity between
the protected conduct and the allegedly retaliatory act
“will rarely be sufficient in and of itself to create a triable
issue”). The combination of the ambiguity of the asserted
threat, the response to Maurizio’s violent outburst, the
hostility toward Miller’s request for accommodation,
and the timing provided sufficient evidence to permit a
reasonable trier of fact to infer pretext and retaliatory
intent. The question must be decided at trial rather than
on summary judgment.
R EVERSED AND R EMANDED.
3
At oral argument, defense counsel suggested that IDOT’s
management had not known of Maurizio’s violent outburst, so
that its failure to take action against Maurizio cannot be evi-
dence of pretext. However, that issue was not raised before
the district court on summary judgment and is not otherwise
reflected in the record. On remand, the parties will have
the opportunity to present evidence on that point.
5-10-11