In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 01-2467 and 01-2531
MARK A. MACK,
Plaintiff-Appellee,
Cross-Appellant,
v.
GREAT DANE TRAILERS,
Defendant-Appellant,
Cross-Appellee.
____________
Appeals from the United States District Court
for the Southern District of Indiana, Terre Haute Division.
No. TH 98-C-303—Larry J. McKinney, Chief Judge.
____________
ARGUED APRIL 8, 2002—DECIDED OCTOBER 22, 2002
____________
Before BAUER, EASTERBROOK, and WILLIAMS, Circuit
Judges.
WILLIAMS, Circuit Judge. After he was discharged
from his job, plaintiff Mark Mack sued his employer, de-
fendant Great Dane Trailers, for violation of the Amer-
icans with Disabilities Act, 42 U.S.C. § 12102, et seq.
(ADA), and for retaliatory discharge under Indiana law.
The district court granted summary judgment in favor of
Great Dane on Mack’s state law claim, but denied sum-
mary judgment on Mack’s ADA claim that Great Dane
discriminated against him because it mistakenly re-
garded him as disabled. The jury found in Mack’s favor
on the ADA claim, and both parties appeal. We agree
with Great Dane that, on the ADA claim, there was insuf-
2 Nos. 01-2467, 01-2531
ficient evidence from which a jury could reasonably find
that Great Dane regarded Mack as substantially limited
in any major life activity and that the district court erred
in denying Great Dane’s motion for judgment as a matter
of law. We also conclude that there was insufficient evi-
dence that would support an inference that Mack was
discharged for filing for workers’ compensation and there-
fore affirm the district court’s grant of summary judg-
ment in favor of Great Dane on Mack’s state law claim
for retaliatory discharge.
I. BACKGROUND
Mack worked as an assistant trailer builder, which
involved many tasks that required long periods of kneel-
ing and squatting. After less than a month on the job,
Mack developed pain in his leg and Great Dane sent him
to see Dr. Daria Schooler. Dr. Schooler diagnosed acute
right peroneal neuropathy, commonly referred to as drop
foot. A month after his injury, Dr. Schooler determined
that Mack could return to sedentary work if transporta-
tion to work was provided. As his condition improved,
she eased the restrictions but cleared him for work only
in areas of the plant that do not require the use of heavy
steel-toed work boots and prohibited kneeling and squat-
ting. These restrictions were repeated in Dr. Schooler’s
reports during the following months and in her handwrit-
ten report of November 2 (received by Great Dane on
November 12). In a typewritten report accompanying the
November 2 report, Schooler stated that Mack “may have
plateaued” in his recovery, but “could potentially return
to work if he had a permanent work restriction of no lift-
ing and if a custom work boot could be manufactured. . . .”
In her final report on November 30, Dr. Schooler deter-
mined that Mack had reached maximum medical improve-
ment from his injury, and released him for a return to
Nos. 01-2467, 01-2531 3
work with permanent restrictions of no kneeling or squat-
ting and if he obtained the suggested custom work boot.
During this time, Mack was on workers’ compensation
leave and received total temporary disability benefits.
Mack repeatedly asked Great Dane to return him to
work and was told that there was no available work with-
in his restrictions. Great Dane discharged Mack effective
November 12, 1997, thirteen months after his disability
leave began. His temporary disability benefits continued
for another month. At a meeting on November 30, Great
Dane managers told Mack that he had been discharged
pursuant to a company policy under which an employee
who is absent more than one year is terminated.
Mack filed suit alleging violations of the ADA and state
law claims for wrongful termination and intentional in-
fliction of emotional distress. On cross motions for sum-
mary judgment, the district court granted judgment in
favor of Great Dane on Mack’s state law claims and his
claim that he was disabled under the ADA. It denied,
however, Great Dane’s motion as to Mack’s “regarded as
disabled” claim. That claim went to trial and the jury
rendered a verdict in favor of Mack. The court denied
Great Dane’s Rule 50(b) motion for judgment as a matter
of law and entered judgment on the verdict.
II. ANALYSIS
A. Americans with Disabilities Act
We review the district court’s denial of Great Dane’s
motion for judgment as a matter of law de novo. Emmel
v. Coca Cola Bottling Co. of Chicago, 95 F.3d 627, 629-30
(7th Cir. 1996). We must determine “whether the evi-
dence presented, combined with all reasonable inferences
permissibly drawn therefrom, is sufficient to support
the verdict when viewed in the light most favorable to
4 Nos. 01-2467, 01-2531
the party against whom the motion is directed.” Tapia v.
City of Greenwood, 965 F.2d 336, 338 (7th Cir. 1992).
An individual is disabled within the meaning of the
ADA if she has “a physical or mental impairment that
substantially limits one or more of the major life activ-
ities of such individual.” 42 U.S.C. § 12102(2)(A); see also
Sutton v. United Airlines, Inc., 527 U.S. 471, 478 (1999).
Mack does not contend on appeal that his impairment
is substantially limiting. But the ADA also protects from
discrimination individuals who are “regarded as” having
a disability, see 42 U.S.C. § 12102(2)(C); Sutton, 527 U.S. at
489, and it was on this theory that Mack’s ADA claim
was submitted to the jury. To fall within the statutory
definition of one “regarded as disabled,” the plaintiff
must show that:
(1) a covered entity mistakenly believes that a
person has a physical impairment that substan-
tially limits one or more major life activities, or
(2) a covered entity mistakenly believes that an
actual, nonlimiting impairment substantially lim-
its one or more major life activities.
Sutton, 527 U.S. at 489. Under either formulation de-
scribed in Sutton, the plaintiff must show that the de-
fendant believes she is “substantially limited” in a “major
life activity.” Id.; 42 U.S.C. § 12102(2)(A) & (C).
Mack’s claim is that Great Dane believed that he was
substantially limited in the major life activity of “lifting.”1
All agree that Great Dane believed that Mack’s physical
1
According to EEOC regulations, lifting is a major life activity.
29 C.F.R. pt. 1630.2(i); see also Gillen v. Fallon Ambulance Serv.,
Inc., 283 F.3d 11, 21 (1st Cir. 2002). Great Dane does not argue
otherwise, so we proceed under the assumption that it is. But
see Mays v. Principi, 301 F.3d 866, 869 (7th Cir. 2002) (expressing
doubt that lifting more than 10 pounds is a major life activity).
Nos. 01-2467, 01-2531 5
condition limited his ability to lift items at work. An im-
pairment that interferes with work-related tasks, how-
ever, does not necessarily rise to the level of a disability
within the meaning of the ADA. Toyota Motor Mfg., Ky.,
Inc. v. Williams, 534 U.S. 184, 122 S. Ct. 681 (2002). In
Toyota, the Supreme Court rejected the employee’s claim
that her carpal tunnel syndrome, which made it impos-
sible to perform certain manual tasks on the job, was a
substantial limitation on a major life activity. The Court
concluded that the inability to perform many tasks as-
sociated with a particular job (in that case, “repetitive
work with hands and arms extended at or above shoulder
levels for extended periods of time”) would have only lim-
ited relevance to the inquiry of whether the impairment
was substantially limiting because those tasks might not
be an important part of most people’s daily lives:
When addressing the major life activity of perform-
ing manual tasks, the central inquiry must be
whether the claimant is unable to perform the
variety of tasks central to most people’s daily lives,
not whether the claimant is unable to perform
the tasks associated with her specific job.
Id., 122 S. Ct. at 693. The Court held that evidence that
plaintiff was unable to do specific job-related duties was
insufficient proof of a disability. Id.
Mack contends, however, that Toyota is distinguish-
able in two respects: first, because the major life activity
at issue there was performing manual tasks—not lift-
ing—and second, because Toyota involved a claim of ac-
tual disability. We see no basis for confining Toyota’s
analysis to only those cases involving the specific life
activity asserted by the plaintiff in that case. See EEOC
v. United Parcel Serv., Inc., ___ F.3d ___, Nos. 01-15410,
01-15976, 01-15977, 2002 WL 31096703, at *7 (9th Cir.
Sept. 20, 2002) (applying Toyota to major life activity of
6 Nos. 01-2467, 01-2531
seeing). Toyota’s point was that an inability to perform
“occupation-specific” tasks does not necessarily show an
inability to perform the central functions of daily life,
122 S. Ct. at 693, and that analysis applies equally to the
work-related restriction at issue here. An inability to lift
heavy objects may disqualify a person from particular
jobs but does not necessarily interfere with the central
functions of daily life. See Mays, 301 F.3d at 869. There
may well be cases in which, because of the nature of the
impairment, one could, from the work-restriction alone,
infer a broader limitation on a major life activity. An
inability to lift even a pencil on the job might suggest
an inability to lift a toothbrush, for example, or to other-
wise care for oneself—or at least might support an infer-
ence that the employer believed the employee was so
limited. But the work restriction in this case was not
nearly of that nature, and instead fits neatly into the sort
of occupation-specific limitation at issue in Toyota. See
Helfter v. United Parcel Serv., Inc., 115 F.3d 613, 617 (8th
Cir. 1997) (evidence that impairment limits work-related
activities such as lifting does not demonstrate triable dis-
pute regarding substantial limitation on major life ac-
tivity); Aucutt v. Six Flags Over Mid-America, Inc., 85 F.3d
1311, 1319 (8th Cir. 1996) (twenty-five pound lifting re-
striction, without more, does not constitute a significant
restriction on ability to perform major life activities); Wil-
liams v. Channel Master Satellite Sys., Inc., 101 F.3d 346,
349 (4th Cir. 1996) (same). Under Toyota, evidence of such
a restriction, without more, is insufficient to show a sub-
stantial limitation on a major life activity.
Furthermore, while Toyota did not address a claim that
the employee was regarded as disabled, its analysis still
controls in this case. Under the ADA, the concepts of
“substantially limits” and “major life activity” are the
same whether the employee is proceeding under a claim
that she is actually disabled or regarded as disabled. The
Nos. 01-2467, 01-2531 7
statute defines disability to include “being regarded as
having such an impairment,” 42 U.S.C. § 12102(2)(C)—the
referenced impairment being that described in the defini-
tion of actual impairment. See 42 U.S.C. § 12102(2)(A). So
if the condition that is the subject of the employer’s belief
is not substantially limiting, and the employer does not
believe that it is, then there is no violation of the ADA
under the “regarded as” prong of the statute. See Sutton,
527 U.S. at 489; see also EEOC v. United Parcel Serv., Inc.,
2002 WL 31096703, at *7 (applying Toyota’s analysis to
“regarded as” claim); Gordon v. E.L. Hamm & Assocs., Inc.,
100 F.3d 907, 913 (11th Cir. 1996) (“As with real impair-
ments, . . . a perceived impairment must be substantial-
ly limiting and significant.”).
Applying these principles, we conclude that Mack’s
ADA claim fails as a matter of law. The parties dispute
whether the evidence showed that Great Dane regarded
Mack as unable to squat to lift from the floor (Great
Dane’s version), or as unable to lift (Mack’s version). But
one thing is clear—all the direct evidence about Great
Dane’s knowledge of Mack’s physical impairment con-
cerned lifting restrictions related to his job and there is
no evidence from which a jury reasonably could infer
anything about Great Dane’s belief about the extent of
Mack’s limitations as to tasks central to his daily life. For
example, Mack relies on one of the neurosurgeon’s re-
ports received by Great Dane, which stated that Mack
could return to work with a restriction of “no lifting” and
if he wore a custom work boot. But even if the jury ig-
nored the numerous other reports from the same doctor
that identified the restriction as one on kneeling and
squatting, the report itself demonstrates that the de-
scribed restriction was in reference to the limitations at
work and nothing more.
Aside from the reference to lifting in the doctor’s re-
port, Mack relies on the deposition testimony of Great
8 Nos. 01-2467, 01-2531
Dane’s human resources manager that Mack’s limitation
was an “inability to lift and squat.” This phrase was in
response to a question about Mack’s ability to keep his
job and in the context of a discussion about his work-
related restrictions. Even if the jury disbelieved the man-
ager’s explanation at trial that his response was limited
to safely lifting objects from the floor (by squatting),
no jury reasonably could conclude from this single refer-
ence to a discussion about work-related restrictions that
Great Dane believed that Mack was substantially limited
in the sort of lifting that is central to most people’s daily
life.
Finally, Mack asserts that there was circumstantial
evidence from which the jury could have inferred that
Great Dane regarded him as disabled. For example, Mack
points out that another employee—one with a similar
injury but with greater work-related restrictions—was
allowed to return to work after an even lengthier leave
of absence and that Great Dane modified the other em-
ployee’s duties to accommodate his impairment. Mack
also claims that the jury could have disbelieved Great
Dane’s reason for firing him based, for example, on the
fact that his leave extended beyond a year and testimony
that the human resources manager had some leeway
to retain Mack longer if the restrictions were lifted.
Ordinarily the relevance of an employer’s different treat-
ment of two similarly situated employees, whose only
relevant difference is on some characteristic that is an
impermissible basis for disparate treatment, is that it
supports an inference that the disparate treatment is
because of that difference. See Troupe v. May Dept. Stores
Co., 20 F.3d 734, 736 (7th Cir. 1994). Similarly, a jury may,
depending on the strength of the other evidence in the
case, infer from evidence of pretext (i.e., that the employ-
er’s stated reason is false) that the adverse job action was
taken because of intentional discrimination. See id. at 736-
Nos. 01-2467, 01-2531 9
37; cf. Dvorak v. Mostardi Platt Assocs., Inc., 289 F.3d 479,
487 (7th Cir. 2002).
In this context, however, Mack is using the compara-
tive and pretext evidence to support an inference not just
of causation—that his membership in the group pro-
tected by the statute was the reason he was treated differ-
ently—but also the antecedent inference that he was a
member of that protected group, in other words, that
Great Dane regarded him as disabled within the meaning
of the ADA. This inference is illogical on the particular
comparison offered by Mack. Mack compares himself to
an employee with a similar injury but greater restric-
tions who was assigned light duty work after he sought
accommodations. The fact that Great Dane accommo-
dated the other employee but not Mack does not support
the inference that it regarded Mack as disabled. It is
equally likely, if not more likely, that Great Dane re-
garded the other employee as disabled and therefore
accommodated him but not Mack.
Mack’s pretext evidence, like his comparative evidence,
is too weak to support an inference that Great Dane
regarded him as disabled. Great Dane’s failure to pro-
vide Mack with alternative job assignments is consistent
with its assertion that it did not have work within his
restrictions,2 and Mack offered no evidence to the contrary.
2
Mack argues that he could have performed the work of an
assistant trailer builder, but there is no question that Great
Dane would have had to make some accommodation—such as
allowing him to work with a special work boot and excusing him
from tasks requiring him to lift heavy objects. Accommodation
is not required if the employee is not covered by the statute,
Szmaj v. American Tel. & Tel. Co., 291 F.3d 955, 956 (7th Cir.
2002), so Great Dane’s failure to accommodate his restrictions
does not suggest that its reason for firing him was false or that
(continued...)
10 Nos. 01-2467, 01-2531
The fact that Great Dane allowed the leave to continue
beyond a year (until his restrictions were identified as
permanent) and that it could have retained Mack longer
if his restrictions had been temporary does not support
an inference that its stated reason for firing him was
false. Accordingly, we conclude that the jury could not
reasonably find from Mack’s circumstantial evidence that
Great Dane regarded him as disabled.
We do not suggest that circumstantial evidence can
never be used to show that an employer regarded an
employee as disabled; the employer’s perception of the
employee’s impairment is, like its intent to discriminate, a
mental state and direct evidence may often be lacking.
See Troupe, 20 F.3d at 736; see also Pugh v. City Of
Attica, Indiana, 259 F.3d 619, 625 (7th Cir. 2001) (employee
may present direct or indirect evidence of discrimina-
tion under the ADA); see generally Wright v. Ill. Dept. of
Corrections, 204 F.3d 727, 730-32 (7th Cir. 2000). But
given Toyota, Mack needed some evidence, direct or cir-
cumstantial, from which a jury could conclude that Great
Dane regarded him as substantially limited in activities
central to most people’s daily lives. The evidence does
not support an inference that Great Dane believed
that Mack’s impairment was anything more than what it
2
(...continued)
it regarded him as disabled. (Whether there is any duty to ac-
commodate an employee who is not actually disabled but is
regarded as disabled is a question we need not decide today.
Compare Weber v. Strippit, Inc., 186 F.3d 907, 917 (8th Cir. 1999)
(holding that there is no requirement to accommodate), with
Davidson v. Midelfort Clinic, Ltd., 133 F.3d 499, 509 (7th Cir.
1998) (suggesting such a requirement for employees with a rec-
ord of a disability); see also Deane v. Pocono Medical Center, 142
F.3d 138, 148 n.12 (3d Cir. 1999) (en banc) (discussing but not
deciding the issue).)
Nos. 01-2467, 01-2531 11
was—a limitation on his ability to do certain tasks on
the job. Because the verdict was unsupported by the
evidence, the judgment must be reversed.3
B. Wrongful Termination
Under Indiana law, “[g]enerally, employers may termi-
nate employees for no cause whatsoever or for any cause
at all without incurring liability.” Hamann v. Gates Chev-
rolet, Inc., 910 F.2d 1417, 1418 (7th Cir. 1990). One ex-
ception to this general rule is that an employee who
has been discharged in retaliation for filing a claim for
workers’ compensation may recover damages for wrong-
ful termination. Frampton v. Central Ind. Gas Co., 297
N.E.2d 425, 428 (Ind. 1973). To survive summary judg-
ment on a Frampton claim, the plaintiff must present
evidence that would support a finding that the dis-
charge was caused by his filing for benefits. Goetzke v.
Ferro Corp., 280 F.3d 766, 774 (7th Cir. 2002). Causation
may not be inferred merely from evidence that (1) the
employee filed for benefits and (2) was fired. See Hamann,
910 F.2d at 1420. Depending on the circumstances, how-
ever, causation may be inferred from the “rapidity and
proximity in time” between the employee’s filing for ben-
efits and the discharge, see id., or from evidence that the
employer’s proffered reason for the discharge is “patently
inconsistent with the evidence before the court.” Markley
Enters., Inc. v. Grover, 716 N.E.2d 559, 565 (Ind. Ct. App.
1999); see Goetzke, 280 F.3d at 774; Hamann, 910 F.2d
at 1421. Mack asserts that the record at summary judg-
3
Given our holding, we need not reach Great Dane’s argument
that the attorney’s fee awarded on this claim was excessive or
Mack’s argument that the district court erred in granting Great
Dane’s motion for judgment as a matter of law on the issue of
punitive damages.
12 Nos. 01-2467, 01-2531
ment contained both types of circumstantial evidence. We
review the district court’s grant of Great Dane’s motion
for summary judgment de novo. See Goetzke, 280 F.3d
at 774.
By the time he was discharged, Mack had been receiv-
ing temporary disability benefits for more than a year,
timing that tends to negate, rather than support, an
inference of causation. Goetzke, 280 F.3d at 775 (holding
that one-year lapse between filing for benefits and dis-
charge does not support an inference of retaliatory intent);
cf. Johnson v. Univ. of Wisconsin-Eau Claire, 70 F.3d 469,
480 (7th Cir. 1995) (“[T]he substantial time lapse between
the events is counter-evidence of any causal connection.”).
Mack attempts to shorten the relevant time lapse by
asserting that he “was fired on the very day his employer
discovered the fact that Mack was going to end his work-
er’s compensation claim”—that is, when Great Dane
received Dr. Schooler’s report suggesting that Mack’s
injury would not likely improve and that his work lim-
itations would be permanent (a condition that signals the
end of total temporary disability benefits, see Kohlman
v. Indiana University, 670 N.E.2d 42, 43 (Ind. Ct. App.
1996)). But Mack has not explained how Great Dane’s
knowledge that his temporary disability payments
would soon end supports an inference that it fired him
for applying for benefits a year earlier.4
4
The case upon which Mack relies for his argument that the
relevant date is when the employer was notified that the em-
ployee’s injury is permanent, Dale v. J.G. Bowers, Inc., 709 N.E.2d
366 (Ind. Ct. App. 1999), is easily distinguishable. In that case,
although the court noted that the employee was fired the day af-
ter receiving an impairment rating, this occurred four months
after his claim for benefits, much shorter than the one-year lapse
in this case. Id. at 367, 370. Furthermore, the employee in Dale
(continued...)
Nos. 01-2467, 01-2531 13
Indiana courts have held, however, that more remote
timing may, when coupled with other sufficient evidence,
support an inference of retaliation. See Goetz, 280 F.3d
at 775 (citing Pepkowski v. Life of Ind. Ins. Co., 535 N.E.2d
1164, 1167-68 (Ind. 1989) (six-month lapse)). To bolster
his timing evidence, Mack points to evidence he claims
casts doubt on Great Dane’s stated reason for his discharge.
At summary judgment, Great Dane submitted evidence
describing its policy of terminating employees after a one-
year leave and evidence that other employees were ter-
minated according to that policy. Mack contends that the
policy was not rigidly applied, pointing out that his leave
actually lasted more than 13 months. But he offered no
evidence at summary judgment that this practice was in
any way unusual or inconsistent with Great Dane’s pol-
icy, or that otherwise would give a jury a reasonable
basis to conclude that the policy was not the real reason
for his termination. Because there was insufficient evi-
dence to support an inference that retaliation was the
reason for Mack’s discharge, summary judgment on this
claim was proper.
III. CONCLUSION
The district court’s grant of summary judgment in favor
of Great Dane on Mack’s retaliation claim is AFFIRMED.
The judgment entered on the jury verdict on Mack’s ADA
claim is REVERSED and the case is REMANDED.
4
(...continued)
also proffered evidence that the medical restrictions were
intended to be temporary, which called into question the em-
ployer’s explanation that he was fired because the restrictions
rendered him unable to do the job. The case therefore turned
not on suspicious timing alone, but on suspicious timing com-
bined with strong evidence of pretext.
14 Nos. 01-2467, 01-2531
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-22-02