UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued August 3, 2005
Decided January 26, 2006
Before
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 04-3897
NICOLE SALADINO, Appeal from the United States District
Plaintiff-Appellant, Court for the Northern District of Illinois,
Western Division.
v.
No. 02 C 50323
ENVIROVAC, INC.,
Defendant-Appellee. Philip G. Reinhard,
Judge.
ORDER
In this appeal Nicole Saladino challenges the district court’s grant of
summary judgment for her employer, Envirovac, Inc., on her claim that the
company failed to accommodate her disability in violation of the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq. We affirm.
The following facts are undisputed. Envirovac hired Saladino as a temporary
customer service clerk in 1999. Three months later she became a permanent
employee and worked as an order-processing clerk. Her immediate supervisor was
No. 04-3897 Page 2
Contracts Department Manager Dennis Tritt and, during the period of time
relevant to this appeal, Tritt reported to Director of Business Planning Doug
Wallace.
Saladino’s health problems began early in 2001. She was admitted to a
hospital once in January because she was tired and “felt kind of out of whack,”
missed several days of work in January and February because of abdominal pain
and other undisclosed maladies, and visited a hospital (but was not admitted) four
times in the summer of 2001 because of unspecified symptoms. In June 2001 her
previously undiagnosed ailments apparently worsened and she began having
seizures, which the record also characterizes as pseudo-seizures. Under its Family
Medical Leave policy, Envirovac granted her 8 to 10 weeks of leave starting in July.
Although her physicians could not identify the cause of her seizures, her
psychologist diagnosed her with anxiety and bipolar disorders and stated that she
could not return to work until December. In September Saladino notified
Envirovac’s Human Resources Manager Nancy Kolar of the diagnosis and requested
an extension of her leave. But on October 8, before her leave expired, her
psychologist released her to return to half-day work.
The same day that Saladino’s psychologist authorized her return, she asked
Kolar to accommodate her need to work only part-time. Wallace and Tritt, though,
telephoned Saladino at her home the next day, October 9, to notify her that her
position had been eliminated in a reduction-in-force (“RIF”), which reduced the total
number of employees from 130 to 120. Saladino, the least-senior clerical worker in
the Contracts Department, was selected for release by Wallace.
Envirovac and Saladino dispute the circumstances surrounding the RIF.
Envirovac suggests that budgetary concerns motivated the RIF, that the employees
released were selected based on lack of seniority, and that Wallace made the
decision to release Saladino in September. Saladino, though, argues that each
employee released had suffered from recent health problems. She also asserts that
the decision to release her occurred only after she requested accommodation.
Saladino filed a complaint alleging a hostile work environment and
retaliation for reporting sexual harassment, in violation of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq., and disability discrimination (due to
her pseudo-seizures and anxiety and bipolar disorders), in violation of the
Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq. Envirovac
moved for summary judgment on the claims and Saladino, in her response to the
motion, clarified that she intended to press a distinct claim premised on Envirovac’s
failure to accommodate her disability.
No. 04-3897 Page 3
Saladino relied on circumstantial evidence to support her assertion that
Envirovac decided to release her only after receiving her request for
accommodation. First she highlighted the timing of events: she requested
accommodation on October 8 and was notified of her release the following day.
Second she pointed to two lists of employees slated for termination which were
prepared by Kolar. The first document denoted those employees released in the RIF
with asterisks and did not contain a mark by Saladino’s name. Although its
drafting date is uncertain, Saladino implied that it was created before the October 9
telephone calls notifying her of her release. The second list, delivered to Saladino
on October 10, did contain a mark by her name. She interpreted these two lists to
mean that she was not selected for release by Envirovac until after she requested
accommodation. Finally she argued that Envirovac’s refusal to discuss the
possibility of part-time employment was evidence of its unwillingness to employ
disabled individuals. In response Envirovac argued that Wallace, the decision-
maker responsible for Saladino’s release, decided to released her in September 2001
without knowing of her disability. Envirovac also suggested that Saladino failed to
show that the seniority-based RIF was motivated by discrimination.
The district court granted Envirovac’s motion for summary judgment. The
court found that the series of events alleged by Saladino did not create an “issue of
material fact” and that “temporal proximity [was] not enough” without evidence to
challenge Envirovac’s assertion that Wallace decided in September to release her as
part of the RIF. Finally the court found that it was unnecessary for Envirovac to
accommodate Saladino’s request to work part-time because Wallace had already
decided by that time to terminate her.
We review a grant of summary judgment de novo. See Isbell v. Allstate Ins.
Co., 418 F.3d 788, 793 (7th Cir. 2005). Saladino now argues that the district court
erred by discounting her circumstantial evidence of discrimination—the timing of
her request for accommodation and the two lists created by Kolar—which she
suggests should have been sufficient to survive Envirovac’s motion for summary
judgment. She also argues that Envirovac’s failure to discuss with her the
possibility of accommodation was further evidence that it violated the ADA.
The ADA prohibits an employer from “not making reasonable
accommodations to the known physical or mental limitations of an otherwise
qualified individual with a disability . . . .” 42 U.S.C. § 12112(b)(5)(A). To state a
prima facie case of failure to accommodate, Saladino must show that: (1) she was
disabled, (2) Envirovac was aware of her disability, (3) she was qualified for her job,
and (4) her disability caused the adverse employment action. See Foster v. Arthur
Andersen, LLP, 168 F.3d 1029, 1032 (7th Cir. 1999). Envirovac conceded the first
and third prongs, and the district court determined that Saladino provided
sufficient evidence to establish the second prong. Though Envirovac can—as it did
No. 04-3897 Page 4
in its brief to this court—defend the district court’s grant of summary judgment on
any ground, including the second prong, see Mass. Mut. Life Ins. Co. v. Ludwig, 426
U.S. 479, 481 (1976); Data Cash Systems, Inc. v. JS&A Group, Inc., 628 F.2d 1038,
1041 (7th Cir. 1980), we will focus—as Saladino did in her brief—on the fourth
prong.
The ADA does not require that an employer accommodate a disabled
employee to the detriment of other senior employees if the disabled employee is
released under a non-discriminatory, seniority-based layoff policy. See Brown v.
Illinois Central R.R. Co., 254 F.3d 654, 668 n.14 (7th Cir. 2001) (ADA does not
disturb seniority-based collective bargaining agreement); Pond v. Michelin N. Am.,
Inc., 183 F.3d 592, 596 (7th Cir. 1999); Eckles v. Consolidated Rail Corp., 94 F.3d
1041, 1051 (7th Cir. 1996); see also Dalton v. Subaru-Isuzu Auto., Inc., 141 F.3d
667, 678 (7th Cir. 1998) (seniority system need not be based on collective bargaining
agreement). A plaintiff may overcome a defendant’s reliance on a seemingly neutral
seniority system by demonstrating that the system is purposefully discriminatory,
see, e.g., United Air Lines, Inc. v. Evans, 431 U.S. 553, 560 (1977); Casteel v.
Executive Bd. of Local 703 of Intern. Broth. of Teamsters, 272 F.3d 463, 466-67 (7th
Cir. 2001).
Saladino has not shown that Envirovac’s seniority-based RIF policy was
purposefully discriminatory, and thus Envirovac’s reliance on the policy precludes
Saladino’s claim of discrimination. She urges that her circumstantial evidence
regarding the timing of Envirovac’s decision to release her proved that Envirovac’s
decision was motivated by discrimination. A “telling temporal sequence” may
support a causal connection between a disability and an adverse employment
action, but it “is not a magical formula which results in a finding of a discriminatory
cause” without other circumstantial evidence from which to infer an improper
motive. Foster, 168 F.3d at 1034. Even if we interpreted the two RIF lists created
by Kolar as establishing that Wallace released Saladino only after she requested
accommodation, her claim of discrimination is still based only on the timing of
events; she has not pointed to evidence of any discriminatory motive. Thus she has
not refuted the neutral RIF criterion asserted by Envirovac and consequently has
failed to demonstrate that the company’s action was motivated by discrimination.
And, because she was selected for release based on her lack of seniority, Envirovac
was not under an obligation to discuss accommodation with her.
Accordingly, we AFFIRM the decision of the district court.