Hoffman, Shirley v. Caterpillar, Inc

In the
United States Court of Appeals
For the Seventh Circuit

No. 99-3023

Shirley Hoffman,

Plaintiff-Appellant,

v.

Caterpillar, Inc.,

Defendant-Appellee.

Appeal from the United States District Court
for the Central District of Illinois.
No. 98 C 1062--Joe B. McDade, Chief Judge.

Argued September 6, 2000--Decided July 3, 2001

Before Manion, Kanne, and Diane P. Wood,
Circuit Judges.

Kanne, Circuit Judge. Shirley Hoffman,
who was born without a left arm below the
elbow, brought suit alleging that
Caterpillar, Inc. unlawfully
discriminated against her by failing to
provide training on two machines in
violation of the Americans with
Disabilities Act (ADA), 42 U.S.C. sec.
12101 et seq./1 Hoffman alleged both
disparate treatment and failure to
accommodate claims with respect to the
first machine, the high speed scanner,
while she only alleged disparate
treatment with respect to the second, the
main console. Caterpillar moved for
summary judgment and the district court
granted the motion. For the reasons
stated herein, we affirm in part but
vacate the district court’s grant of
summary judgment for Caterpillar on
Hoffman’s disparate treatment claim with
respect to the high-speed scanner.

I. History

Hoffman began working for Caterpillar’s
Optical Services Department ("OSD") in
April 1996. The OSD provides digital
scanning services to all of Caterpillar’s
business units by scanning documents into
the computer and indexing them for future
reference. Hoffman’s primary job
responsibility is indexing--entering data
relating to a scanned image into the
computer. Her job also includes preparing
papers to be scanned, maintaining the
copy machine, running the flatbed scanner
(a low-speed scanner), and ordering
office supplies. Due to the fact that she
is missing her lower left arm, Hoffman
needs several accommodations to perform
her job, including a typing stand, poster
putty to raise the function key on her
computer, and a compound called tacky
finger to improve finger grip. It is also
sometimes necessary for Hoffman to have
the items in her work area rearranged.
Although Hoffman and Caterpillar dispute
the willingness with which Hoffman was
initially accommodated (she claims that
her repeated requests for accommodation
were ignored until she was forced to
bring in her own materials), it is clear
that she is now able to perform the
essential functions of her job.
Caterpillar concedes that, with the
exception of her first three weeks on the
job, Hoffman’s work has been average or
better and that she performs her indexing
job as fast or faster than a person with
two hands.

Although Hoffman already performs all of
the required functions of her job, she
has repeatedly expressed a desire to be
trained on two additional pieces of
equipment. First, Hoffman wishes to
operate the high-speed scanner, a
production machine that scans forty to
fifty pages per minute. Operation of the
high-speed scanner is a key position in
the OSD because the overall productivity
of the department depends on the speed at
which documents are scanned. OSD
employees in Hoffman’s position are not
required to run the high-speed scanner;
out of the twenty-one people in the
department as of March 1999, only seven
are completely trained to operate it.
Caterpillar contends that Hoffman’s lack
of training on the high-speed scanner
does not affect her compensation,
benefits, work hours, job title, or
ability to advance within the OSD.
Hoffman disagrees with Caterpillar’s
claim that the denial of training does
not affect her ability to advance; she
argues that she will be a more attractive
candidate for promotion if she is well-
trained. In addition, Hoffman maintains
that she should be trained, regardless of
whether it affects her ability to
advance, because every other employee who
has expressed an interest in operating
the high-speed scanner has received the
necessary training to do so.

Hoffman’s supervisor and the head of
the OSD, Lynn Cripe, admits that he
denied Hoffman training on the high-speed
scanner because she only has one hand. He
claims that her disability would prevent
her from being able to properly run the
high-speed scanner because two hands are
needed to clear paper jams and to
straighten documents as they exit the
machine. Paper jams occur frequently on
the high-speed scanner--sometimes four to
five times an hour--disrupting production
for anywhere from a few seconds to
fifteen minutes depending on the severity
of the jam. Cripe is concerned that
Hoffman would be unable to run the
machine, and even if she were able to
operate it, that she would be unable to
maintain an acceptable speed or clear the
frequent paper jams without assistance.
Although Cripe is not fully trained on
the high-speed scanner himself, his
observation of the machine leads him to
believe that Hoffman, even if able to
physically run the machine, would not be
able to keep up with the production
standards set for the department. Cripe
also believes that the configuration of
the high-speed scanner presents an
obstacle to Hoffman’s running of the
machine because the keyboard which
controls the scanner settings is located
on the left side of the machine--the side
on which Hoffman does not have a hand.
According to Cripe, the settings need to
be changed fairly quickly during scanning
and it would be difficult for Hoffman to
adjust the settings while continuing to
feed the paper with only one arm. Cripe’s
belief that Hoffman would be unable to
run the high-speed scanner was never
confirmed, however, because Hoffman was
never given a chance to try.

Hoffman also challenges Caterpillar’s
decision to deny her training on another
piece of equipment, the main console. The
main console is a computer that is used
to check the accuracy of data entered for
scanned documents. Caterpillar asserts
that Hoffman was denied training on the
main console, not because of her
disability, but because the main console
is operated by individuals in the
reviewer position and Hoffman is not
qualified for that position because she
lacks the necessary communication skills.

II. Analysis

A. Standard of Review

We review de novo the district court’s
grant of summary judgment, drawing our
own conclusions of law and fact from the
record before us. See Amadio v. Ford
Motor Co., 238 F.3d 919, 924 (7th Cir.
2001). Summary judgment is proper when
"the pleadings, depositions, answers to
interrogatories, and admissions on file,
together with the affidavits, if any,
show that there is no genuine issue as to
any material fact and that the moving
party is entitled to a judgment as a
matter of law." Fed. R. Civ. P. 56(c);
see also Celotex Corp. v. Catrett, 477
U.S. 317, 322-23, 106 S. Ct. 2548, 91 L.
Ed. 2d 265 (1986). In determining whether
there exists any genuine issue of
material fact, we must construe all facts
in the light most favorable to the non-
moving party and draw all reasonable and
justifiable inferences in favor of that
party. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255, 106 S. Ct. 2505,
91 L. Ed. 2d 202 (1986).

B. Denial of Training on the High-Speed
Scanner

Hoffman claims that Caterpillar’s denial
of training on the high-speed scanner
violated the ADA. The ADA proscribes
discrimination against a qualified
individual with a disability "because of
the disability of such individual in
regard to job application procedures, the
hiring, advancement, or discharge of
employees, employee compensation, job
training, and other terms, conditions,
and privileges of employment." 42 U.S.C.
sec. 12112(a). As a threshold
requirement, Hoffman must first establish
that she has a disability as defined by
the ADA. Disability is defined as "(A) a
physical or mental impairment that
substantially limits one or more of the
major life activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an
impairment." 42 U.S.C. sec. 12102(2). A
plaintiff must also demonstrate that she
is qualified for the position in
question. An individual is qualified if
she "satisfies the pre-requisites for the
position" and "can perform the essential
functions of the position held or
desired, with or without reasonable
accommodation." Bombard v. Fort Wayne
Newspapers, Inc., 92 F.3d 560, 563 (7th
Cir. 1996) (quoting 29 C.F.R. app. sec.
1630.2(m)).

Once a plaintiff has established that
she is a qualified individual with a
disability, she may show discrimination
in either of two ways: by presenting
evidence of disparate treatment or by
showing a failure to accommodate. See
Sieberns v. Wal-Mart Stores, Inc., 125
F.3d 1019, 1021-22 (7th Cir. 1997).
Disparate treatment claims arise from
language in the ADA prohibiting covered
entities from "limiting, segregating, or
classifying a job applicant or employee
in a way that adversely affects the
opportunities or status of such applicant
or employee," 42 U.S.C. sec. 12112(b)(1),
while failure to accommodate claims stem
from language in the ADA defining
discrimination in part as "not making
reasonable accommodations to the known
physical or mental limitations of an
otherwise qualified individual." 42
U.S.C. sec. 12112(b)(5)(A).

A disparate treatment claim under the
ADA is similar to disparate treatment
claims under Title VII, 42 U.S.C. sec.
2000e-2(a), and the ADEA, 29 U.S.C. sec.
623(a)(1) in that the plaintiff attempts
to show that she was treated differently
than other workers on the basis of a
protected characteristic. As with other
federal anti-discrimination statutes, an
ADA plaintiff may prove disparate
treatment either by presenting direct
evidence of discrimination, or she may
prove it indirectly using the McDonnell
Douglas burden-shifting method. See
McDonnell Douglas v. Green, 411 U.S. 792,
93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).
In order to prevail in the absence of
direct evidence, a plaintiff must first
make out a prima facie case by showing
that: (1) she is disabled within the
meaning of the ADA; (2) she was meeting
the legitimate employment expectations of
her employer; (3) she suffered an adverse
employment action; and (4) similarly
situated employees received more
favorable treatment. See Amadio v. Ford
Motor Co., 238 F.3d 919, 924 (7th Cir.
2001).
 In failure to accommodate claims, unlike
disparate treatment claims, the McDonnell
Douglas burden-shifting approach is not
necessary or appropriate. See Weigel v.
Target Stores, 122 F.3d 461, 464 (7th
Cir. 1997). Instead, the plaintiff, in
addition to showing that she is a
qualified individual with a disability,
must show that the employer was aware of
her disability and still failed to
reasonably accommodate it. See Foster v.
Arthur Andersen, LLP, 168 F.3d 1029, 1032
(7th Cir. 1999). Reasonable
accommodations may include:

(A) making existing facilities used by
employees readily accessible to and
usable by individuals with disabilities;
and

(B) job restructuring, part-time or
modified work schedules, reassignment to
a vacant position, acquisition or
modification of equipment or devices,
appropriate 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. sec. 12111(9).

Hoffman claims that Caterpillar’s denial
of training on the high-speed scanner
constitutes both disparate treatment and
a failure to accommodate under the ADA.
Because Caterpillar does not challenge
Hoffman’s claim that she is a qualified
individual with a disability within the
meaning of the ADA, we turn first to
Hoffman’s disparate treatment claim.

1. Disparate Treatment

At the outset, we note that it is quite
clear that Caterpillar is not obligated
to train Hoffman on the high-speed
scanner if she is not capable of running
it. The ADA certainly does not require
employers to allow employees to use
equipment that they are unable to
operate. Nor does anything in the ADA
mandate that Caterpillar must tolerate a
drop in productivity in order to allow
Hoffman to run the high-speed scanner.
Usually, the question of an employee’s
ability to perform a specific task will
be decided at the outset of a disparate
treatment claim in the context of
determining whether the plaintiff is
"qualified" under the ADA. In situations
such as this one, however, where an
employee can clearly perform the
essential functions of the position but
alleges disparate treatment as to some
non-essential function, the employee’s
ability to perform the task in question
becomes relevant at this later stage.

Viewing the evidence in the light most
favorable to Hoffman, we find that there
is an issue of fact as to whether Hoffman
would be able to operate the high-speed
scanner. Because "Congress perceived that
employers were basing employment
decisions on unfounded stereotypes,"
Siefken v. Vill. of Arlington Heights, 65
F.3d 664, 666 (7th Cir. 1995), the ADA
discourages employment decisions "’based
on stereotypes and generalizations
associated with the individual’s
disability rather than on the
individual’s actual characteristics.’"
Holiday v. City of Chattanooga, 206 F.3d
637, 643 (6th Cir. 2000) (quoting EEOC v.
Prevo’s Family Mkt., Inc., 135 F.3d 1089,
1097 (6th Cir. 1998)). The ADA recognizes
that a non-disabled person’s instincts
about the capabilities of a disabled
person are often likely to be incorrect.
Therefore, a determination that two-
handed people use both of their hands to
operate the high-speed scanner, or even a
determination that most one-handed people
would be unable to run it, should not be
the end of an employer’s inquiry. In this
case, it seems doubtful that Cripe made
an individualized determination as to
whether Hoffman could operate the high-
speed scanner because he never gave her a
chance to try it. Caterpillar claims that
the primary reason that Hoffman lacks the
capability to run the high-speed scanner
is that she would be unable to
effectively clear the frequent paper jams
that occur. There is evidence in the
record, however, that Hoffman clears
paper jams from the copy machine without
assistance, and Caterpillar presents no
evidence to suggest that clearing paper
jams from the high-speed scanner is
somehow different. Nor does Caterpillar
counter Hoffman’s claim that she could
use her left arm in a manner similar to
a flat hand to hold down the paper as it
is being fed into the machine. Therefore,
drawing all inferences in favor of
Hoffman, we must assume that she is
physically capable of running the high-
speed scanner. Thus, we move on to the
substance of Hoffman’s disparate
treatment claim.

Hoffman’s supervisor, Cripe, admits that
he refused Hoffman’s requests for high-
speed scanner training because of her
disability. Notwithstanding this
admission, the district court granted
summary judgment for Caterpillar. The
court determined that because Hoffman
failed to show that the denial of
training affected her compensation,
benefits, hours worked, job title, or
ability to advance within Caterpillar,
she had not shown a materially adverse
employment action--one of the elements of
the prima facie case under McDonnell
Douglas. See Hoffman v. Caterpillar Inc.,
No. 98-1062 , slip op. at 7 (C.D. Ill.
July 12, 1999) (citing Spencer v. AT&T
Network Sys., No. 94 C 7788, 1998 WL
397843, at *5 (N.D. Ill. July 13, 1998)
(finding that denial of training was not
a materially adverse employment action
because plaintiff’s pay, hours, job
title, and quality of her
responsibilities were not significantly
affected); Needy v. Vill. of Woodridge,
No. 96 C 5188, 1997 WL 461093 at *6 (N.D.
Ill. Aug. 8 1997) ("[D]eprivations of
training opportunities do not constitute
an adverse employment action under Title
VII.")).

On appeal, Hoffman argues that, because
she has direct evidence of discriminatory
intent, the district court erred in
determining that she must proceed using
the McDonnell Douglas burden-shifting
approach. Direct evidence is evidence
which, if believed, "will prove the
particular fact in question without
reliance upon inference or presumption."
Plair v. E. J. Brach & Sons, Inc., 105
F.3d 343, 347 (7th Cir. 1997) (quotation
omitted). In the vast majority of
disparate treatment claims, the plaintiff
does not have direct evidence of
discrimination on the basis of some
protected characteristic. Our cases
establish that making out a prima facie
case using the McDonnell Douglas approach
is an alternative to showing direct
evidence of an employer’s discriminatory
intent. See, e.g., Beatty v. Wood, 204
F.3d 713, 717 (7th Cir. 2000). The
purpose of the McDonnell Douglas burden-
shifting approach is to allow a plaintiff
to raise an inference of discrimination
even in the absence of direct evidence.
See Lynch v. Belden & Co., 882 F.2d 262,
269 (7th Cir. 1989). It would be
redundant to require a plaintiff to
utilize the burden-shifting method to
raise a presumption of discrimination if
he or she possesses direct evidence of
discrimination. Our determination that
Hoffman need not use the McDonnell
Douglas approach does not necessarily
mean, however, that Hoffman need not show
that she has suffered a materially
adverse employment action. We must
consider whether demonstrating a
materially adverse employment action,
aside from being an element of the prima
facie case, is a separate substantive
requirement of a disparate treatment
claim under the ADA.

Caterpillar contends that it is clear
that an alleged denial of training must
materially affect an individual’s employ
ment for it to be actionable. However,
none of the authorities that Caterpillar
cites for the proposition that a denial
of training must be materially adverse,
see Shackelford v. Deloitte & Touche,
LLP, 190 F.3d 398, 407 (5th Cir. 1999);
Spencer v. AT&T Network Sys., 1998 WL
397843, at *5; Needy v. Vill. of
Woodridge, 1997 WL 461093, at *6, with
the exception of Shaner v. Synthes, 204
F.3d 494, 503 (3d Cir. 2000),/2 deal
with denials of job training under the
ADA; rather, they address failure to
train claims under Title VII and the
ADEA. This distinction is relevant
because the ADA specifically prohibits
discrimination in "regard to job
application procedures, the hiring,
advancement, or discharge of employees,
employee compensation, job training, and
other terms, conditions, and privileges
of employment," 42 U.S.C. sec. 12112(a)
(emphasis added), while the parallel
provisions of Title VII, 42 U.S.C. sec.
2000e-2(a), and the ADEA, 29 U.S.C. sec.
623(a)(1) do not specifically include the
term "job training" among the prohibited
actions. If, as Caterpillar suggests, a
plaintiff must show that a denial of job
training was materially adverse, the
inclusion of the words "job training" in
the ADA are mere surplusage because it is
clear that a materially adverse denial of
job training would fall under the
statute’s prohibition of discrimination
in "other terms, conditions, and
privileges of employment." 42 U.S.C. sec.
12112(a). Such a finding would violate
the interpretive principle that, "every
word or provision of a statute must, if
possible, be given some effect." Cent.
States, Southeast & Southwest Areas
Pension Fund v. Reimer Express World
Corp., 230 F.3d 934, 942 (7th Cir. 2000).

Although we acknowledge that several of
our cases contain language suggesting
that an employee must always make a
separate affirmative showing of a
materially adverse employment action in
all ADA cases, see, e.g., Bekker v.
Humana Health Plan, Inc., 229 F.3d 662,
670 (2000);/3 Moore v. J.B. Hunt
Transp., Inc., 221 F.3d 944, 950 (7th
Cir. 2000), none of these cases confront
the issue of whether an ADA plaintiff
alleging denial of job training was also
required to present evidence that the
denial was adverse. In addition, a close
reading of our past employment cases
reveals that the cases suggesting that
plaintiffs must show an adverse
employment action in every case are not
dealing with any specifically articulated
prohibition, but rather with other
"terms, conditions, and privileges of
employment." See, e.g., Crady v. Liberty
Nat’l Bank & Trust Co., 993 F.2d 132, 136
(7th Cir. 1993) ("[A] materially adverse
change in the terms and conditions of
employment must be more disruptive than a
mere inconvenience or an alteration of
job responsibilities."); Spring v.
Sheboygan Area Sch. Dist., 865 F.2d 883,
885 (7th Cir. 1989) ("To establish a
violation of the ADEA, therefore, a
plaintiff must prove that she suffered a
materially adverse change in the terms or
conditions of her employment."). We do
not require a plaintiff who is alleging
discrimination with respect to hiring,
discharge, or the other enumerated
actions to also show that the action was
materially adverse.

In Hunt v. City of Markham, 219 F.3d 649
(7th Cir. 2000), we noted that "[t]he
idea behind requiring proof of an adverse
employment action is simply that a
statute which forbids employment
discrimination is not intended to reach
every bigoted act or gesture that a
worker might encounter in the workplace."
Id. at 653. While we agree that Congress
did not intend the ADA to reach every
bigoted act or gesture, we must believe
that Congress did intend to reach conduct
that it specifically prohibited in the
statute. Thus, with respect to employment
actions specifically enumerated in the
statute, a materially adverse employment
action is not a separate substantive
requirement. We agree with Hoffman that,
because the ADA specifically prohibits
discrimination in regard to "job
training," and she has direct evidence of
discriminatory intent, she need not show
that the denial of training was
materially adverse./4 See Lane v. Wal-
Mart Stores, Inc., No. Civ. CCB-99-763,
2000 WL 1481638, at *7 n. 13 (D. Md. Aug.
28, 2000). Hoffman is not asking for
special training because of her
disability, on the contrary, she is
merely asking for the same training that
is available to all other employees who
request it. Cf. Williams v. United Ins.
Co. of Am., No. 00-3276, 2001 WL 624868
(7th Cir. June 7, 2001).

As a practical matter, the class of
potential ADA plaintiffs affected by
today’s holding is quite small. Direct
evidence cases, like this one, are very
rare in the employment discrimination
context because employers are generally
very careful to avoid statements that
suggest discriminatory intent--whether
their true intentions are discriminatory
or not. Most plaintiffs only possess
indirect evidence of discrimination, and
therefore must proceed using the
McDonnell Douglas burden-shifting method.
Even if the plaintiff is able to make out
a prima facie case for a denial of
training claim, the defendant will be
able to avoid liability by articulating a
legitimate business reason for the denial
of training.

Therefore, because the ADA specifically
prohibits discrimination in the area of
job training and Hoffman has direct
evidence of discrimination, we find that
the district court erred in granting
summary judgment for the defendant on
this issue. In order to recover, Hoffman
must show that she is physically capable
of running the high-speed scanner, but
she is not required to make a separate
showing that the denial of training was a
materially adverse employment action.
Accordingly, we will remand in order to
allow Hoffman to attempt to prove her
disparate treatment claim for denial of
training on the high-speed scanner.
2. Failure to Accommodate

We next turn to Hoffman’s failure to
accommodate claim. At issue is whether
Caterpillar must accommodate Hoffman in
order to allow her to operate the high-
speed scanner if she is unable to do so
without accommodation. As we noted above,
Hoffman has already been accommodated in
order to perform the essential functions
of her job. She now requests (assuming
she needs it) accommodation so that she
may operate the high-speed scanner--a
non-essential function of her position.
While it is admirable that Hoffman wants
to perform job tasks that Caterpillar
does not require her to perform, "[i]t is
the employer’s prerogative to choose a
reasonable accommodation; an employer is
not required to provide the particular
accommodation that an employee requests."
Jay v. Intermet Wagner, Inc., 233 F.3d
1014, 1017 (7th Cir. 2000); see also
Schmidt v. Methodist Hosp. of Ind., 89
F.3d 342, 344 (7th Cir. 1996) (stating
that "[r]easonable accommodation does not
require an employer to provide literally
everything the disabled employee
requests"). Caterpillar has chosen to
accommodate Hoffman’s disability by
letting other employees run the high-
speed scanner, and; if Caterpillar is
correct that Hoffman is unable to run the
high-speed scanner without assistance, we
will not disturb Caterpillar’s chosen
method of accommodation. The ADA requires
"an employer to make whatever
accommodations are reasonably possible in
the circumstances to perform the
functions essential to his position,"
Miranda v. Wis. Power & Light Co., 91
F.3d 1011, 1017 (7th Cir. 1996),
including removing nonessential functions
from the job, see United States E.E.O.C.
v. AIC Sec. Investigations, Ltd., 55 F.3d
1276, 1284 (7th Cir. 1995), but nothing
in the statute requires an employer to
accommodate the employee so that she may
perform any nonessential function that
she chooses. Nor is Caterpillar required
to provide an accommodation if the costs
are disproportionate to the benefits. See
Vande Zande v. State of Wis. Dept. of
Admin., 44 F.3d 538, 542-43 (7th Cir.
1995) (holding that "an employer is not
required to expend enormous sums in order
to bring about a trivial improvement in
the life of a disabled employee").
Therefore, we agree with the district
court’s determination that Caterpillar is
not required to accommodate Hoffman in
running the high-speed scanner if she is
unable to operate it by herself.

C. Denial of Training on the Main
Console

Hoffman also claims that Caterpillar
discriminated against her on the basis of
her disability by denying her training on
the main console. In response,
Caterpillar maintains that operating the
main console is not even part of
Hoffman’s indexing position. Further,
Caterpillar asserts that Hoffman is not
qualified for the position that is
responsible for running the main console
because she lacks the necessary
communication and analytical skills.

Hoffman does not have direct evidence
that she was denied training on the main
console because of her disability.
Therefore, she must proceed by the
McDonnell Douglas burden-shifting method.
See McDonnell Douglas v. Green, 411 U.S.
792, 93 S. Ct. 1817, 36 L. Ed. 2d 668
(1973). Under McDonnell Douglas, if she
is successful in establishing a prima
facie case, a rebuttable presumption of
discrimination is created and the burden
of production shifts to the defendants to
present evidence of a legitimate, non-
discriminatory reason for the challenged
action. See Maarouf v. Walker Mfg. Co.,
210 F.3d 750, 752 (7th Cir. 2000).
IfCaterpillar presents evidence of a non-
invidious reason for its action, the
burden then shifts back to Hoffman to
show that the articulated reason is in
fact a pretext for discrimination. See
id.

In this case it is unclear whether
Hoffman is complaining that she should
have been allowed training on the main
console while staying in her current
position or that Caterpillar’s failure to
move her into the reviewer position was
discriminatory. We need not determine
which action Hoffman is complaining of,
however, because Caterpillar has
presented a legitimate, non-
discriminatory reason for its action and
Hoffman has made no effort to rebut it.
We will deem an issue waived where the
argument on appeal is undeveloped and not
supported with pertinent authority. See
Goren v. New Vision Intl., Inc., 156 F.3d
721, 726-27 n. 2 (7th Cir. 1998).
Therefore, we affirm the district court’s
determination.

III. Conclusion

For the foregoing reasons, the district
court erred in requiring the plaintiff to
show that the denial of training on the
high-speed scanner was a materially
adverse employment action. Therefore, we
VACATE the district court’s grant of
summary judgment on Hoffman’s disparate
treatment claim with respect to the high-
speed scanner and REMAND to allow the
plaintiff to attempt to show that she is
entitled to recover on this claim. We
AFFIRM the district court’s grant of
summary judgment for Caterpillar with
respect to Hoffman’s failure to
accommodate claim as well as her claim
for discriminatory denial of training on
the main console.

FOOTNOTES

/1 In the district court, Hoffman also alleged
violations of the Age Discrimination in Employ-
ment Act (ADEA), 29 U.S.C. sec. 623(a)(1). The
district court granted summary judgment for the
defendant on these claims and Hoffman does not
appeal that decision here.

/2 Defendant cites Shaner v. Synthes for the propo-
sition that a plaintiff must show that the train-
ing denied to the plaintiff was necessary to the
plaintiff’s current job in order to state a
disparate treatment claim under the ADA. We
disagree with this reading of Shaner. In Shaner,
the court addressed whether a particular type of
computer training was necessary for plaintiff’s
position solely in order to determine whether
plaintiff was similarly situated to other workers
who had received computer training. See Shaner,
204 F.3d at 503. The court did not discuss
whether or not the denial of training was a
materially adverse employment action. See id.

/3 Judge Manion’s dissent cites Bekker as support
for the contention that ADA plaintiffs must
always make an affirmative showing of an adverse
employment action. The court in Bekker, however,
did not discuss the adverse action requirement
because the plaintiff in that case was dis-
charged. The only issue in Bekker was whether
Humana’s termination of Dr. Bekker was justified
by its concern that she was under the influence
of alcohol while she was on duty. See Bekker v.
Humana Health Plan, Inc., 229 F.3d 662, 671 (7th
Cir. 2000).
/4 Our holding today does not suggest that any
employee who is denied training of any sort will
have a cause of action under the ADA. An employer
may deny training to any employee for any reason,
so long as that reason is not discriminatory. We
believe the dissent’s example of a NASA worker
requesting training to be an astronaut is inappo-
site. Implicit in this example is the assumption
that the employee is neither eligible nor quali-
fied to be an astronaut. First of all, the ADA
only protects employees who are qualified in
terms of experience and ability to perform a
particular job. Furthermore, to prevail in a
denial of training claim, an employee must always
show that she is eligible for the training in
question. See Macalara v. City of Madison, 224
F.3d 727, 729 (7th Cir. 2000). Our holding today
eviscerates neither of these requirements. It is
clear that Hoffman is qualified for her job, and
that she is eligible for the requested training.
We also believe that the dissent’s example at-
tempts to blur the line between failure to train
and failure to promote claims. The employee in
the NASA example is not asking for training so
she can perform her current job, but is actually
asking to be placed in a different position, i.e.
to be promoted. In Hoffman’s case, it is clear
that she is asking for training pertinent to the
job she has now, not for some job she aspires to.
Moreover, we disagree with the suggestion that
our holding requires employers to train now and
ask questions--i.e., can the employee adequately
perform the task at issue--later. On the con-
trary, our discussion in Part B.1. makes it clear
that an employer is not required to provide
training for a task that the employee is unable
to perform. Our decision today does not change
the timing of the inquiry into the employee’s
ability, it simply requires that the employer
actually make the inquiry.

MANION, Circuit Judge, dissenting. Although
Shirley Hoffman was born without a left arm below
the elbow, with certain accommodations she has
competently performed her job in the Optical
Services Department at Caterpillar. Among other
tasks, she operates a low-speed scanner. She has
requested several times to be trained on the
high-speed scanner but her supervisor has denied
such training because she has only one hand. The
question before us is whether denying her this
training because she is disabled, even though it
is clear that not being so trained will not
affect her salary or her ability to advance, is
a violation of the ADA. Because the district
court properly concluded that Hoffman did not
present sufficient evidence to support a triable
issue of fact that she suffered a materially
adverse employment action, I respectfully dis-
sent.

As a preliminary matter, under the ADA, Hoffman
was required to show that she suffered an adverse
employment action. Whether she presents direct
evidence of disability discrimination, or pro-
ceeds under the burden-shifting method set forth
in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973), she must show all three of the following
elements to establish her disparate treatment
claim: (1) that she is disabled within the mean-
ing of the ADA; (2) that she is qualified to
perform the essential functions of her job either
with or without reasonable accommodation; and
that (3) she suffered from an adverse employment
action because of her disability. Bekker v.
Humana Health Plan, Inc., 229 F.3d 662, 670 (7th
Cir. 2000). Thus, a plaintiff bringing a dispa-
rate treatment claim under the ADA must always
establish that she suffered an adverse employment
action. And for Hoffman to survive summary judg-
ment in this case, she must present evidence to
support a genuine issue of fact that her employ-
er’s denial of her request to be trained on the
high-speed scanner and the main console was an
adverse employment action. She has not done that,
and the court is not enforcing that requirement.
The court implies that the mere denial of train-
ing is per se an adverse employment action, but
there is no authority for that position.

Furthermore, even though Hoffman alleged that
she suffered one of the categories of discrimina-
tion specifically enumerated in 42 U.S.C. sec.
12112(a) (i.e., denial of job training), she is
still required to show that the denial of train-
ing was an adverse action./1 To illustrate, take
an extreme example. Suppose someone with Hoff-
man’s disability works at NASA, where she has
been reasonably accommodated in a job in which
she monitors flights. Although she did quality
work and was doing well in her career, she always
wanted to see if she could qualify to be an
astronaut; after all, other NASA employees with
similar background and experience had been se-
lected for astronaut training./2 And it would be
a notable achievement for a person with her
condition. So she asks her supervisor for the
opportunity for training as an astronaut, and her
supervisor denies the request, saying: "I can’t
approve your request because you’re disabled."
According to this court’s decision, that employee
has a claim under the ADA, even though she
clearly did not suffer a materially adverse
change in her current career and employment
conditions. The law does not go that far. A
denial of training, without more, cannot be
labeled an adverse action that violates the
ADA./3

Because "’adverse actions can come in many
shapes and sizes,’" Oest v. Illinois Dep’t. of
Corrections, 240 F.3d 605, 613 (7th Cir. 2001)
(quoting Knox v. State of Indiana, 93 F.3d 1327,
1334 (7th Cir. 1996)), we must consider the
particular facts of this case to determine wheth-
er Hoffman has suffered a materially adverse
employment action. She has not. The district
court properly granted summary judgment because
Hoffman failed to show that the denial of her
request for training was an adverse action.
Another piece of equipment where she wanted
training, the main console, was related to an
entirely different job. And less than one-third
of the employees in Hoffman’s department were
required to operate the high-speed scanner. Work
at the main console and the high-speed scanner
differs from the work she performs at her current
position. Hoffman has retained the same pay and
position and has lost no benefits, seniority or
material responsibilities. Moreover, Hoffman did
not show that her lack of training at the high-
speed scanner and main console prevented her from
being considered for advancement opportunities.
Operating the high-speed scanner was not a neces-
sary step for advancement. Caterpillar also
presented evidence that it promoted other employ-
ees who lacked such training.

Hoffman needed to show that she suffered an
adverse action to survive summary judgment on her
disparate treatment claim. Simply showing that
she was denied job training, a category where the
statute specifically prohibits discrimination, is
not enough. Because Hoffman has not shown that
she suffered an adverse employment action, I
would affirm the district court.

FOOTNOTES

/1 The court cites only to a footnote in Lane v.
Wal-Mart Stores, Inc., No. Civ. CCB-99-763, 2000
WL 1481638, at *7 n. 13 (D. Md. Aug. 28, 2000),
an opinion from the district court of Maryland,
and that footnote cites only generally to the ADA
statute. See contra Atkinson v. Wiley Sanders
Truck Lines, Inc., 45 F.Supp.2d 1288, 1294 (M.D.
Ala. 1998) (it was not an adverse employment
action to deny an employee’s request to partici-
pate in a training course because of the employ-
ee’s disability).

/2 Similar to the hypothetical NASA employee, Hoff-
man aspires to be trained on two machines that
her current position does not require her to
operate. Although the court states in footnote 4
of its decision that Hoffman is seeking training
"pertinent to the job she has now," the court has
also acknowledged throughout its decision that
"Hoffman already performs all of the required
functions of her job"; that "OSD employees in
Hoffman’s position are not required to run the
high-speed scanner"; and that the high-speed
scanner is "a non-essential function of her
position." We also note that unlike the plaintiff
in Williams v. United Ins. Co. of Am., 00-3276,
2001 WL 624868 (7th Cir. June 7, 2001), Hoffman
does not direct us to anything in the record that
indicates that training on the high-speed scanner
was made available to all of the employees in her
department. Such training was not necessary for
promotion or advancement, and it is undisputed
that less than a third of the employees in
Hoffman’s department have received such training.

/3 As the court notes (Part B.2, p. 15), if Cater-
pillar is correct that Hoffman is unable to run
the high-speed scanner without assistance, it
will not disturb the decision to "accommodate
Hoffman’s disability by letting other employees
run the high-speed scanner." But the only way
Caterpillar can be "correct" is to first train
her on the scanner and then, with training com-
pleted, determine whether she can operate it
satisfactorily. This could be a costly experiment
when she has suffered no adverse action in her
present job.