In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-4340
LYNNETTE MANNIE,
Plaintiff-Appellant,
v.
JOHN E. POTTER,
Defendant-Appellee.
____________
Appeal from the United States District Court for
the Northern District of Illinois, Eastern Division.
No. 01 C 9097—Rebecca R. Pallmeyer, Judge.
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ARGUED SEPTEMBER 30, 2004—DECIDED JANUARY 20, 2005
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Before ROVNER, WOOD, and SYKES, Circuit Judges.
ROVNER, Circuit Judge. Lynnette Mannie brought this
action against the United States Postal Service, claiming
disability discrimination, retaliation, and hostile work envi-
ronment in violation of the Rehabilitation Act of 1973, 29
U.S.C. §§ 701 et seq. The district court granted summary
judgment for the Postal Service on the retaliation and hos-
tile work environment claims. The discrimination claim,
alleging that Mannie received disparate treatment in the
assignment of work hours due to her mental illness, para-
noid schizophrenia, went to trial and the jury found for the
2 No. 03-4340
Postal Service. Mannie appeals, challenging the grant of
summary judgment as well as an evidentiary ruling ex-
cluding the testimony of Mannie’s former co-worker at trial.
We affirm.
Mannie first applied to the Postal Service in January 1994.
In a pre-employment medical history questionnaire, known
as a “Form 2485,” she revealed that she had undergone
treatment for paranoia and submitted a doctor’s statement
reflecting treatment for delusions resulting from her con-
dition. When Mannie was not offered a position, she filed a
charge of discrimination with the Equal Employment
Opportunity Commission (“EEOC”) but dropped it when the
Postal Service hired her later that year. Mannie completed
another Form 2485 before she was hired, and this time she
omitted her history of psychiatric treatment. In 1995 Mannie’s
supervisor, Phyllis James, reported that Mannie’s co-work-
ers had complained about her “erratic behavior, constant
staring, and paranoia.” Mannie underwent a “fitness for
duty” exam and again denied having ever been treated for
a psychiatric disorder. When the Postal Inspection Service
discovered Mannie’s original Form 2485 describing her par-
anoid schizophrenia, she was terminated for falsifying the
two other forms. Mannie filed a charge with the EEOC,
claiming that her termination was based upon her mental
illness and was therefore discriminatory. After arbitration,
Mannie was reinstated, but there was no finding that the
Postal Serivce had discriminated against her.
In 1996 Mannie injured her wrist while working and filed
a successful claim for workers’ compensation. After her in-
jury, Mannie was placed in the Nixie Unit where employees
restricted to “light duty” for non-work related injuries and
“limited duty” for work-related injuries are typically as-
signed because the work is not strenuous. In 1998 Mannie
was diagnosed with tendonitis in her right wrist, and her
doctor recommended that she be restricted from heavy lift-
ing. The Postal Service again assigned her to the Nixie Unit
where she has remained.
No. 03-4340 3
In August 2000 Mannie filed a charge with the EEOC,
claiming that her supervisors had denied her work hours
and benefits because of her mental condition and had retal-
iated against her for the filing of previous EEOC charges.
She alleged that her schedule had been limited to 30 hours
per week although part-time regular mail processors are
usually allowed to work 37 ½ hours per week. According to
Mannie, supervisors Camille Buford and Phyllis James
made derogatory comments about her mental health and
shared this “negative information” with subsequent super-
visors who continued to deny her hours. Mannie claimed
that the Postal Service accommodated employees with phy-
sical disabilities and scheduled them for “full hours” but did
not extend the same treatment to employees with mental
disabilities. Mannie also claimed that her supervisors in-
structed her to undergo an additional “fitness for duty”
examination in June 2000 because of her mental disability.
In November 2001 Mannie filed suit in federal district
court after her administrative claim had been pending for
more than 180 days without resolution. In her complaint,
Mannie claimed that she had been subjected to disparate
treatment, retaliation, and hostile work environment. She
alleged that her supervisors had ridiculed her paranoid
schizophrenia and revealed her mental disorder to her co-
workers. She also claimed that her supervisors had sche-
duled her for fewer hours than other employees in her job
category because of both her mental disability and her prior
EEOC filings.
The Postal Service moved for summary judgment on all of
Mannie’s claims. It argued that Mannie was not disabled
within the meaning of the Rehabilitation Act because her
physical and mental impairments did not limit her ability
to perform any major life activities. The Postal Service also
argued that Mannie had not suffered any adverse employ-
ment action on which to base her claims because Mannie
had admitted that she was guaranteed only six hours of
4 No. 03-4340
work per day and she had always been scheduled and paid
for this full amount. Moreover, Mannie had never signed
the “overtime-desired” list that was the first step in being
scheduled for overtime work. Finally, the Postal Service ar-
gued that Mannie could not establish that she was sub-
jected to a hostile work environment because the conduct
that she alleged was not sufficiently severe or pervasive.
In response to the motion for summary judgment, Mannie
asserted that she had a disability because her supervisors
perceived her as disabled and discriminated against her as
a result. She also argued that she experienced adverse em-
ployment action because other part-time regular employees
were scheduled to work more than six hours per day and al-
lowed to sign up for overtime, while she was never scheduled
for additional hours and was not given the opportunity to
apply for overtime. In her affidavit, she listed the names of
several employees whom she claimed were treated more
favorably, but did not substantiate the hours that these
employees worked. Additionally, most of the employees she
listed were either full-time employees or part-time flexible
employees, while Mannie was a part-time regular. As for
her hostile work environment claim, Mannie asserted that
she had suffered from “years of abuse” that would be con-
sidered objectively hostile by a reasonable person. As sup-
port, she submitted affidavits from co-workers who attested
that Mannie’s supervisors referred to her as “crazy.” One co-
worker attested that supervisors “regularly” told Mannie to
go home, and often “paged” Mannie to instruct her to go
home or to return from cigarette breaks. Mannie also stated
that certain female co-workers intentionally offended her by
wearing tight-fitting clothing and “strutting” in front of her,
that someone had once placed two letters in her locker at
work to harass her, and that a woman had hugged her in an
effort to smell her.
The district court granted summary judgment for the
Postal Service on the retaliation and hostile work envi-
No. 03-4340 5
ronment claims. With respect to the retaliation claim, the
district court applied the burden-shifting analysis adopted
from McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),
because Mannie had provided no direct evidence of retali-
ation. The district court found that Mannie had engaged in
protected activity in filing two prior EEOC charges, but she
had not identified any similarly situated persons who had
not filed such charges and received more favorable treat-
ment. The court also noted that Mannie had not established
“even the slightest link” between her earlier complaints and
the adverse actions of her supervisors.
In granting summary judgment for the Postal Service on
the hostile work environment claim, the court held that
none of the incidents of harassment that Mannie cited rose
to the level of a hostile work environment as described in
Silk v. City of Chicago, 194 F.3d 788 (7th Cir. 1999). The
court noted that Mannie had produced no evidence that any
harassing remarks were made directly to her; rather, she
heard from other employees that her supervisors and co-
workers had made derogatory statements about her. More-
over, the court found that Mannie did not establish that the
harassment affected her job performance or altered the
conditions of her employment.
Mannie’s discrimination claim proceeded to trial where
she argued that her supervisors perceived her as “crazy”
and consequently assigned her fewer hours than other
workers and denied her overtime. The Postal Service pre-
sented evidence that Mannie was always paid for six hours
of work per day, and that she had never signed up for over-
time. During the trial, the district court declined to allow
the testimony of Edmund Lindsay, Mannie’s former co-
worker. Mannie’s attorney submitted as an offer of proof an
affidavit in which Lindsay attested that Mannie’s former
supervisor, Phyllis James, frequently made derogatory
statements about Mannie, such as calling her “crazy” and
suggesting that she was not a “live body.” The district court
6 No. 03-4340
noted that Mannie’s claims of discriminatory treatment
originated in 2000, whereas James had left the Postal
Service in 1997, and excluded the testimony on that basis.
The jury found for the Postal Service. Mannie appeals the
district court’s evidentiary ruling at trial, as well as the
grant of summary judgment on her hostile work environ-
ment and retaliation claims.
Turning first to the exclusion of Edmund Lindsay’s testi-
mony, we review the district court’s evidentiary ruling for
abuse of discretion. Wyninger v. New Venture Gear, 361 F.3d
965, 974 (7th Cir. 2004). Mannie argues for the first time on
appeal that James had assigned her to a work schedule that
she followed for years after James left for another branch of
the Postal Service, and that James’s derogatory statements
were therefore relevant to the disparate treatment claim.
But at trial the only offer of proof was Lindsay’s affidavit,
which simply recounted a few of James’s comments. Any
statements made by James prior to her departure in 1997
were too remote in time to be relevant to Mannie’s 2000 claim
that her supervisors were denying her the opportunity to
work as many hours as employees who did not have mental
illnesses. Because Mannie did not establish the relevance
of James’s three-year-old statements, the district court did
not abuse its discretion in excluding Lindsay’s testimony.
We turn next to Mannie’s hostile work environment
and retaliation claims, which were dismissed on summary
judgment. We review de novo the district court’s grant of
summary judgment to the Postal Service. Hottenroth v. Vill-
age of Slinger, 388 F.3d 1015, 1027 (7th Cir. 2004). We view
the evidence in the light most favorable to Mannie, the non-
moving party, to determine if the record demonstrates that
there is no genuine issue of material fact and that the
Postal Service is entitled to judgment as a matter of law. Id.
Mannie has no remedy for employment discrimination
under the Americans With Disabilities Act (“ADA”) because
she is a federal employee. See Rivera v. Heyman, 157 F.3d
No. 03-4340 7
101, 103 (6th Cir. 1998). Thus, we evaluate her claims under
the Rehabilitation Act of 1973, 29 U.S.C. §§ 701 et seq.
Section 501 of the Act, which is the sole remedy for federal
employees claiming disability discrimination, see McGuinness
v. United States Postal Serv., 744 F.2d 1318, 1321 (7th Cir.
1984), requires federal agencies to accommodate disabled
employees and prohibits discrimination based on disability.
29 U.S.C. § 791(b); McWright v. Alexander, 982 F.2d 222,
225-26 (7th Cir. 1992). Employees who bring successful
claims under § 501 are entitled to the remedies prescribed
by Title VII. 29 U.S.C. § 794(a)(1); McWright, 982 F.2d at
226 n.1.
Mannie first argues that the district court improperly
granted summary judgment on her hostile work environ-
ment claim because she had produced sufficient evidence to
show “an ongoing and pervasive hostile environment.”
Although we have not yet decided whether a claim for hostile
work environment is cognizable under the ADA or the
Rehabilitation Act, we have assumed the existence of such
claims where resolution of the issue has not been necessary.
See Conley v. Village of Bedford Park, 215 F.3d 703, 712-13
(7th Cir. 2000). We have further assumed that the stan-
dards for proving such a claim would mirror those we have
established for claims of hostile work environment under
Title VII. Silk, 194 F.3d at 804. See also Jeseritz v. Potter,
282 F.3d 542, 547 (8th Cir. 2002).
A hostile work environment exists where an employee ex-
periences harassment that is “so severe or pervasive as to
alter the conditions of employment and create an abusive
working environment.” Farragher v. City of Boca Raton, 524
U.S. 775, 786 (1998); Conley, 215 F.3d at 713. A plaintiff
establishes an alteration in the terms and conditions of
employment by demonstrating either a tangible employment
action, such as discharge or demotion, or a non-tangible
action, such as discriminatory conduct that is so severe or
pervasive as to create an “abusive” working environment.
8 No. 03-4340
Silk, 194 F.3d at 804-05. Furthermore, the plaintiff must
demonstrate that the workplace was both subjectively and
objectively hostile. Id. at 805. An objectively hostile envi-
ronment is one that a reasonable person would find hostile
or abusive. Id.
Mannie has not established that any of the behavior that
she describes was sufficiently severe or pervasive as to cre-
ate a hostile work environment. She asserts that her super-
visors made derogatory statements about her, discussed her
mental condition with other employees, and paged her to
return from cigarette breaks. In addition, she contends that
her co-workers discussed rumors about her mental stability
and engaged in behavior offensive to her such as wearing
tight-fitting clothing. But Mannie has barely addressed the
factors that we have deemed crucial in evaluating whether
harassment is pervasive or severe, such as “the frequency,
severity, and threatening or humiliating nature of the dis-
criminatory conduct and whether it unreasonably interferes
with [her] work performance.” E.g., id., 194 F.3d at 804.
Most of the conduct that forms the basis of her claim
consists of derogatory statements made by supervisors or
co-workers out of her hearing. The remaining incidents that
Mannie describes, to the extent there is any record support
for them, are isolated and not particularly severe and such
conduct “is not sufficient to sustain a hostile work environ-
ment claim.” Dandy v. United Parcel Serv., Inc., 388 F.3d
263, 271 (7th Cir. 2004).
Moreover, Mannie has failed to demonstrate that the be-
havior of her co-workers and supervisors altered a term or
condition of her employment. In Silk, we held that a police
officer who experienced direct verbal abuse and threats of
violence did not establish a hostile work environment be-
cause the harassment did not materially alter the condi-
tions of his employment. Id. at 808. Mannie likewise has
submitted no evidence that could establish that she exper-
ienced a tangible employment action or that she was unable
No. 03-4340 9
to perform her job because of the conduct of her supervisors
and co-workers.
Mannie also argues that the district court improperly
granted summary judgment on her retaliation claim. An
employee bringing a retaliation claim must present either
direct evidence of discrimination or indirect evidence under
the burden-shifting analysis prescribed by McDonnell
Douglas. Kersting v. Wal-Mart Stores, Inc., 250 F. 3d 1109,
1117 (7th Cir. 2001). Mannie conflates the two recognized
approaches by arguing that she presented direct evidence
of retaliation and established pretext. Her claim fails under
either method.
Mannie first argues that summary judgment was im-
proper because she provided direct evidence of retaliation
by demonstrating that she “was advised that her supervisors
were aware of her filings of discrimination and viewed them
negatively.” Evidence of retaliation is “direct” when, if be-
lieved, it would prove the fact in question without reliance
on inference or presumption. Rogers v. City of Chicago, 320
F.3d 748, 753 (7th Cir. 2003). This “essentially requires an
admission by the decision-maker that his actions were based
upon the prohibited animus,” id., and because such evidence
is rare we also allow the introduction of circumstantial
evidence from which the fact-finder could infer intentional
discrimination, id.; Hottenroth, 388 F.3d at 1028.
Mannie falls well short of presenting direct evidence of
retaliation. She gives no record support for the contention
that her supervisors viewed her EEOC filings negatively,
nor does she specify who “advised” her of her supervisors’
purported disapproval of her filings. But even if we accept
that Mannie’s supervisors “took a dim view of her complain-
ing of discrimination,” this is not direct evidence because it
requires the inference that her supervisors’ negative view
of her discrimination charges caused them to take an
adverse employment action. Mannie has not established
10 No. 03-4340
that any adverse employment action occurred because she
admitted to always being scheduled for the minimum num-
bers of hours that she was guaranteed and she never sought
overtime or a change in her schedule. Even if we accepted
that she was scheduled for fewer hours than other employ-
ees, she has not produced any evidence to demonstrate that
this action was based upon a discriminatory motive. Nor
does Mannie provide circumstantial evidence that would
allow a jury to infer intentional discrimination.
Mannie’s retaliation claim likewise fails under the indirect
approach. She must first establish a prima facie case of re-
taliation by demonstrating that after engaging in protected
activity such as filing a charge, she was subjected to an ad-
verse employment action even though she was performing
her job satisfactorily, and no similarly situated employee
who did not file a charge was subjected to the adverse
employment action. Hudson v. Chicago Transit Auth., 375
F.3d 552, 559 (7th Cir. 2004). The burden then shifts to the
employer to present evidence of a non-invidious reason for
the employment action at issue. Id. If the employer does so,
the burden shifts back to the employee to demonstrate that
the employer’s proffered reason is pretextual. Id. Formerly,
the plaintiff was also required to establish a “causal link”
between the adverse employment action and the protected
conduct. But in Stone v. City of Indianapolis Pub. Util. Div.,
in an opinion that was circulated under Rule 40(e), we held
that plaintiffs seeking to prove retaliation under the
indirect method need not show “even an attenuated causal
link.” 281 F.3d 640, 643-44 (7th Cir. 2002). Nevertheless, in
light of some decisions issued soon after Stone in which the
“causal link” language persists, the district court in this
case applied that test in addition to the other factors.
Mindful that some confusion remains, we clarify again that
no “causal link” is necessary under the indirect method.
Mannie argues that summary judgment was improper
because she can establish pretext, but we need not reach this
portion of the analysis because she has not demonstrated a
No. 03-4340 11
prima facie case of retaliation. Again, Mannie has not sub-
stantiated her claim that she suffered an adverse employ-
ment action, and she has also failed to identify similarly
situated employees who did not file EEOC charges and were
treated more favorably. Thus summary judgment was
appropriate under either method of proving retaliation.
For the reasons stated above, we AFFIRM the decision of
the district court.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-20-05