In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2201
V ICTORIA S EREDNYJ,
Plaintiff-Appellant,
v.
B EVERLY H EALTHCARE, LLC,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 08-cv-00004—Robert L. Miller, Jr., Judge.
A RGUED A PRIL 5, 2011—D ECIDED A UGUST 26, 2011
Before E ASTERBROOK, Chief Judge, B AUER, Circuit
Judge, and Y OUNG, District Judge.
Y OUNG, District Judge. Beverly Healthcare, LLC
(“Beverly”), employed Victoria Serednyj as an Activity
Director in Beverly’s Golden Living nursing home in
Valparaiso, Indiana, from August 2006 to March 2007. In
The Honorable Richard L. Young, Chief Judge of the United
States District Court for the Southern District of Indiana,
sitting by designation.
2 No. 10-2201
early January 2007, Serednyj learned she was pregnant,
and, at the end of February 2007, she began to experience
pregnancy-related complications. Her doctor placed her
on bed rest for two weeks, and, at the end of this two-
week period, her doctor placed her on light duty restric-
tions. Serednyj asked to be accommodated, and Beverly
denied her request under its modified work policy. Be-
cause Serednyj also did not qualify for leave under
the Family Medical Leave Act (“FMLA”), Beverly termi-
nated her employment. Serednyj then filed suit against
Beverly, alleging gender discrimination under Title VII
of the Civil Rights Act of 1964 (“Title VII”), pregnancy
discrimination under Title VII, as amended by the Preg-
nancy Discrimination Act (“PDA”), disability discrim-
ination under the Americans with Disabilities Act
(“ADA”), and retaliation. Beverly moved for summary
judgment, which the district court granted. Serednyj
now appeals. For the reasons set forth below, we affirm.
I. Background
A. The Activity Director Position
On August 11, 2006, Serednyj was hired as an Activity
Director by Dawn Mount, the Executive Director of
Beverly’s Golden Living nursing home in Valparaiso,
Indiana. Prior to that time, Serednyj worked at Beverly
two distinct times as a certified nursing assistant
(“CNA”), and both times, she voluntarily quit the position.
The duties of an Activity Director are to plan, implement,
and participate in morning and/or afternoon activities
No. 10-2201 3
for the residents at the nursing home facility. During
Serednyj’s term as Activity Director, she attended
morning meetings, conducted exercise classes, developed
a monthly calendar, shopped for activities, set up and
prepared for activities, assisted residents to and from
activities, and planned activities, including bingo, arts
and crafts, cooking, and excursions outside the facility.
In addition, Serednyj supervised the Assistant Activity
Director, who assisted Serednyj with all of her job func-
tions, conducted evening activities, and worked on
Serednyj’s off days.
The execution of Serednyj’s duties entailed some physi-
cally strenuous functions. These included: (1) trans-
porting residents to activities in either wheelchairs or
much heavier “geri chairs”; (2) rearranging dining room
tables for specific activities, and later setting them back
into place; (3) shopping for supplies for use in the activi-
ties, including bingo prizes, snacks, and drinks, which
required her to lift and transport heavy shopping bags;
and (4) setting up and maintaining the rather large
monthly activity calendar, which required her to stand
on a stool and staple the calendar to corkboard mounted
on a wall. Other Beverly employees voluntarily assisted
her with these functions, including Eric Christe, a
physical therapy assistant, other members of the physical
therapy department, and other CNAs.
The job description for the position of Activity
Director includes an “Essential Functions” heading, a
“Qualifications” heading, and an “Other Job Functions”
heading. Underneath the “Other Job Functions” heading
4 No. 10-2201
is a section entitled “Physical and Sensory Require-
ments.” These requirements include: “[w]alking, reaching,
climbing, bending, lifting, grasping, fine hand coordina-
tion, pushing and pulling, ability to read and write,
ability to communicate with residents and personnel, and
ability to remain calm in emergency situations and
when handling multiple tasks.”
B. Serednyj’s Pregnancy Complications
On December 14, 2006, Serednyj learned she was preg-
nant, but she suffered a miscarriage days later. On
January 7, 2007, she learned she was pregnant again.1
Shortly after learning of the second pregnancy, she in-
formed Mount, her supervisor, and others at Beverly that
she was pregnant. Mount congratulated Serednyj, and
Serednyj continued to perform all of her required duties
and to work her regular schedule throughout January
and February 2007.
At the end of February 2007, Serednyj began to have
complications with her pregnancy, including spotting
and cramping. She went to the hospital and was seen
by Dr. Wallace Sherritt, who was covering for her
regular physician, Dr. Kurt Wiese. After conducting
several tests, Dr. Sherritt concluded that Serednyj’s pro-
gesterone levels were low, that she had bleeding be-
hind the placenta, and shearing of the uterus. He informed
1
There is no explanation in the record below as to why the
two pregnancies were so close in time.
No. 10-2201 5
her that if these complications were not addressed im-
mediately, she would suffer another miscarriage. Dr.
Sherritt prescribed progesterone suppositories twice a
day and told Serednyj not to perform strenuous activities.
Serednyj explained her situation to Mount. A few days
later, Mount asked for further explanation regarding
what work duties she could and could not perform.
Dr. Sherritt provided a doctor’s note, dated February 27,
2007, which reads, in relevant part:
I have seen this patient and have instructed her that
she is to limit her activities to no heavy lifting
or strenuous activities. She has explained her responsi-
bilities that pertain to her work and she has been
advised that she is not to participate in her usual
work load. If she cannot perform duties that are of
a limited nature then she needs to stay off of work
until she can be re-evaluated by Dr. Wiese upon
his return next week. Failure to do so could
jeopardize her pregnancy.
These restrictions meant that Serednyj could not set
up and move tables for activities in the nursing home,
push patients in their wheelchairs to those activities, nor
decorate and maintain the activity calendar. Serednyj
requested to be excused from these activities.
Mount explained Beverly’s modified work policy to
Serednyj, and informed her that she could not return
to work until Dr. Wiese released her back to full duty.
The modified work policy, known as HR-305, states: “The
Company only provides one type of restricted or limited
duty to employees with non-work related injuries or
6 No. 10-2201
conditions,” which is accommodated duty “as one form
of reasonable accommodation under the Americans
with Disabilities Act (ADA) or comparable state law,
where medically necessary for qualified individuals
with disabilities to perform essential functions.” The
policy states in bold, “No other restricted or limited duty
is permitted for non-work related injuries or conditions.”
Mount also informed Serednyj that she had not been
employed long enough to qualify for FMLA leave.
On March 1, 2007, Dr. Sherritt faxed another note to
Mount, which stated: “After reviewing your form and
considering this patient’s situation I have decided that
in her best interest I cannot give my permission for her
to continue working in any capacity.” Dr. Sherritt
indicated that Serednyj’s physician, Dr. Wiese, would
return to work soon, and that he deferred to his judg-
ment regarding her work restrictions.
Serednyj saw Dr. Wiese on March 6, 2007, and he
signed a small form entitled “Disability Certificate.”
Dr. Wiese reported that Serednyj was totally incapacitated
(on bed rest) from March 2, 2007, to March 14, 2007,
and was still unable to return to work. Serednyj showed
the form to Mount, and informed her she was to see
Dr. Wiese again on March 13, 2007. Mount told her that
if she could not return to work on March 14, 2007,
without restrictions, she would have to “let her go.”
On March 13, 2007, Serednyj saw Dr. Wiese, who wrote
a note saying “light duty or unable to work until further
notice.” Serednyj gave the note to Mount, who again
informed Serednyj that she did not fall within Beverly’s
No. 10-2201 7
modified work policy because her injury was not “work
related,” and that she had not worked there long
enough to qualify for FMLA leave. Mount terminated her
employment.
Serednyj hired an attorney, who drafted a letter
to Beverly, dated March 21, 2007, requesting an accom-
modation pursuant to the ADA and the PDA. Mount
informed Serednyj she would look into it again, and
contacted the Division Manager of Human Resources,
Connie Rebey. After this discussion, Mount called
Serednyj on March 26, 2007, to inform her a second time
that she was not eligible for light duty work under
Beverly’s modified work policy.
On April 10, 2007, Beverly filled out an Earning Infor-
mation Request form for Serednyj for Indiana state
welfare. Beverly indicated on the form that Serednyj was
“fired” from her job.
In June 2007, Serednyj’s physician lifted her restrictions
and informed her that she could begin exercising again.
Serednyj had a healthy baby boy on September 24, 2007,
and began working part-time at Wal-Mart on December 5,
2007, without any restrictions. Serednyj became pregnant
again with her second child in January or February 2009,
and suffered no complications throughout that pregnancy.
II. Analysis
Summary judgment is appropriate if the record “shows
that there is no genuine dispute as to any material fact
8 No. 10-2201
and the movant is entitled to judgment as a matter of
law.” FED. R. C IV. P. 56(a). The Court reviews de novo
a district court’s grant of summary judgment, viewing
the facts and all reasonable inferences in the light
most favorable to the nonmoving party. Hall v. Nalco Co.,
534 F.3d 644, 646 (7th Cir. 2008). When a summary judg-
ment motion is submitted and supported by evidence
as provided in Rule 56(c), the nonmoving party may
not rest on mere allegations or denials in its pleadings,
but “must set forth specific facts showing that there is
a genuine issue for trial.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 250 (1986) (internal quotation marks
and citation omitted). A genuine issue of material fact
exists “if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Id. at 248.
A. Title VII and the PDA
Title VII prohibits employment discrimination on the
basis of sex. 42 U.S.C. § 2000e-2(a). In 1978, Congress
amended Title VII by enacting the PDA to explicitly
extend protection to pregnant women:
The terms “because of sex” or “on the basis of sex”
include, but are not limited to, because of or on
the basis of pregnancy, childbirth, or related medical
conditions; and women affected by pregnancy, child-
birth, or related medical conditions shall be treated
the same for all employment-related purposes . . . as
other persons not so affected but similar in their
ability or inability to work . . . .”
No. 10-2201 9
42 U.S.C. § 2000e(k). “The PDA created no new rights or
remedies, but clarified the scope of Title VII by recog-
nizing certain inherently gender-specific characteristics
that may not form the basis for disparate treatment
of employees.” Hall, 534 F.3d at 647 (citing Newport
News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669,
678-79 (1983)). “The PDA ‘made clear that, for all Title VII
purposes, discrimination based on a woman’s pregnancy
is, on its face, discrimination because of her sex.’ ” Id.
(quoting Newport News, 462 U.S. at 684); see also Griffin v.
Sisters of Saint Francis, Inc., 489 F.3d 838, 843 (7th Cir. 2007)
(stating that “pregnancy is a proxy for gender, and,
therefore, discrimination against pregnancy is discrimina-
tion against women”). Thus, Serednyj’s claim for preg-
nancy discrimination is a claim for gender discrimination,
and the legal analysis for both claims is the same. Griffin,
489 F.3d at 842-43. Accordingly, we analyze these claims
together.
1. Direct Method
A plaintiff can show that she was a victim of intentional
discrimination either by proceeding under the direct
method or the indirect, burden-shifting method. Rhodes
v. Illinois Dep’t of Transp., 359 F.3d 498, 504 (7th Cir.
2004) (citing Cianci v. Pettibone Corp., 152 F.3d 723, 727-28
(7th Cir. 1998)). Serednyj proceeds under both methods
of proof.
Under the direct method, the plaintiff may show, either
through direct or circumstantial evidence, that the em-
10 No. 10-2201
ployer’s decision to take the adverse job action against
her was motivated by an impermissible purpose, such
as sex. Id. (citing Cianci, 152 F.3d at 727). “Direct evidence
is evidence that, if believed by the trier of fact, would
prove discriminatory conduct on the part of the employer
without reliance on inference or presumption.” Id. (citing
Rogers v. City of Chicago, 320 F.3d 748, 753 (7th Cir. 2003)).
This type of evidence “requires an admission by the
decision-maker that [her] actions were based upon the
prohibited animus.” Id. (quoting Rogers, 320 F.3d at
753) (internal quotations omitted). A plaintiff may also
establish her direct case by presenting a convincing
mosaic of circumstantial evidence from which a rea-
sonable juror could infer intentional discrimination by
the decisionmaker. Id. (quoting Troupe v. May Dep’t Stores
Co., 20 F.3d 734, 737 (7th Cir. 1994)). Serednyj’s circum-
stantial evidence “ ‘must point directly to a discriminatory
reason for the employer’s action.’ ” Id. (quoting Adams v.
Wal-Mart Stores, Inc., 324 F.3d 935, 939 (7th Cir. 2003)).
a. Direct Evidence
Beverly’s modified work policy provides accommoda-
tions to qualified individuals with a disability under
the ADA or to those employees who sustain work-
related injuries. Serednyj argues that the policy’s terms
violate the PDA’s provision that pregnant employees
“shall be treated the same for all employment-
related purposes . . . as other persons not so affected but
similar in their ability or inability to work . . . .” 42 U.S.C.
No. 10-2201 11
§ 2000e(k). According to Serednyj, an employee who
is disabled or suffers a work-related injury and receives
an accommodation of light duty work receives better
treatment than a pregnant employee, like Serednyj,
who needs the same accommodation to maintain her
employment.
The PDA requires that an employer ignore a female
employee’s pregnancy and treat that employee the same
as it would have if she were not pregnant. Piraino v. Int’l
Orientation Resources, Inc., 84 F.3d 270, 274 (7th Cir. 1996);
Troupe, 20 F.3d at 738. In the context of this case, this
means that an employer is not required to provide an
accommodation to a pregnant employee unless it pro-
vides the same accommodation to its similarly situated
nonpregnant employees. See Dormeyer v. Comerica Bank-
Illinois, 223 F.3d 579, 583 (7th Cir. 2000) (“[T]he Pregnancy
Discrimination Act does not protect a pregnant
employee from being discharged after her absence
from work even if her absence is due to pregnancy or
to complications of pregnancy, unless the absences of
nonpregnant employees are overlooked.”); Troupe, 20
F.3d at 738 (“The Pregnancy Discrimination Act requires
the employer to ignore an employee’s pregnancy, but . . .
not her absence from work, unless the employer over-
looks the comparable absences of nonpregnant employ-
ees.”).
Contrary to Serednyj’s assertion, Beverly’s modified
work policy is not direct evidence of discrimination.
The policy complies with the PDA because it does, in
fact, treat nonpregnant employees the same as pregnant
12 No. 10-2201
employees—both are denied an accommodation of
light duty work for non-work-related injuries. This is all
the PDA requires. We, therefore, agree with the district
court and find that Beverly’s modified work policy is
“pregnancy-blind,” and therefore valid. See Spivey v.
Beverly Healthcare Enterprises, Inc., 196 F.3d 1309, 1312-13
(11th Cir. 1999) (holding that the same policy against
the same defendant is valid under the PDA and citing
Troupe and Piraino); see also Reeves v. Swift Transp. Co.,
446 F.3d 637, 641 (6th Cir. 2006) (holding a similar policy
valid because the policy “does not grant or deny light
work on the basis of pregnancy, childbirth, or related
medical condition” and citing Troupe); Urbano v. Cont’l
Airlines, Inc., 138 F.3d 204, 206 (5th Cir. 1998) (holding
a similar policy valid because the light-duty policy
treated pregnant employees the same as nonpregnant
employees and citing Troupe and Piraino).
b. Indirect Evidence
Serednyj does not have direct evidence that Beverly
discriminated against her due to her pregnancy. Thus, to
survive summary judgment under the direct method,
Serednyj must present a convincing mosaic of circum-
stantial evidence from which a reasonable juror could
infer intentional discrimination by Beverly. Serednyj’s
mosaic may be comprised of three categories of circum-
stantial evidence, each of which is sufficient by itself to
support a judgment for the plaintiff. Troupe, 20 F.3d at
736. The first category “consists of suspicious timing,
ambiguous statements oral or written, behavior toward
No. 10-2201 13
or comments directed at other employees in the
protected group, and other bits and pieces from which an
inference of discriminatory intent may be drawn.” Id.
The second category consists of evidence that similarly
situated employees outside of the protected group (preg-
nancy, sex, race, etc.) received systematically better
treatment. Id. The third category consists of “evidence
that the plaintiff was qualified for the job in question
but passed over in favor of (or replaced by) a person
not having the forbidden characteristic and that the em-
ployer’s stated reason for the difference in treatment
is unworthy of belief, a mere pretext for discrimina-
tion.” Id.
As her first piece of circumstantial evidence, Serednyj
contends that before she became pregnant, she received
assistance from other Beverly employees, including
Christe and other CNAs, in performing such job duties
as moving dining room tables and transporting residents
by wheelchair or geri chair to and from planned activi-
ties. But after she became pregnant and asked for the same
assistance in the form of an accommodation, Beverly
denied her request and terminated her employment.
For purposes of the PDA and Title VII, a request for
an accommodation is materially different than a request
for assistance. The assistance Serednyj received from
her co-workers before she became pregnant was com-
pletely voluntary and given in a spirit of teamwork. If a co-
worker could not or would not assist her in her job
duties, that co-worker was free to decline her request,
and was otherwise under no obligation to provide assis-
14 No. 10-2201
tance. If Beverly were to grant Serednyj’s request for an
accommodation, however, Serednyj’s job duties would
be formally modified to light duty work, and the
assistance given by her co-workers would be obligatory.
Beverly’s decision to deny Serednyj’s request for an
accommodation is not circumstantial evidence of inten-
tional discrimination. Instead, as the district court ob-
served, it is direct evidence that Beverly applied its modi-
fied work policy to her.
Serednyj also contends that Beverly discriminated
against her by not providing her an accommodation
with respect to certain job duties that were not listed as
“Essential Functions” in her written job description.
Serednyj argues, “[n]owhere in the internet job posting, or
the job description given to [Serednyj] that contained
the essential functions of her job, stated anything about
lifting, transporting patients, doing the activity board,
or lifting shopping bags, the very accommodations
which [Serednyj] requested.”
In determining the essential functions of a position, a
court may consider, but is not limited to, evidence of
the employer’s judgment as to which functions are es-
sential, and the written job description in effect before
the employee interviewed for the position. Basith v.
Cook County, 241 F.3d 919, 927 (7th Cir. 2001) (citing
29 C.F.R. § 1630.2(n)(3)).
According to Beverly, an Activity Director must be
able to perform certain physically strenuous activities
in order to carry out the duties of the position, such as
transporting patients by wheelchair. Moreover, the job
No. 10-2201 15
description for the Activity Director position contains a
physical and sensory requirement which expressly pro-
vides that an Activity Director must be able to, among
other things, reach, climb, lift, push, and pull. The fact
that this requirement was listed under the “Other Func-
tions” heading rather than the “Essential Functions” or
“Qualifications” headings of the job description is not
evidence that the physical requirements of her job—i.e.,
pushing wheelchairs, lifting shopping bags, hanging
the monthly calendar, and moving tables—were not
essential to the overall fulfillment of the Activity
Director position. Indeed, Serednyj expressly admitted
in her deposition that these physical demands were in
fact duties of her job. We, therefore, conclude that
Beverly’s understanding of the essential functions of
the Activity Director position was correct, and is not
circumstantial evidence of intentional discrimination.
Serednyj next argues that after she provided the
March 21, 2007, letter to Beverly requesting an accom-
modation pursuant to the PDA and the ADA, Beverly
began to think of ways to fire her. In support of this
argument, Serednyj cites to the notes that Mount made
of her conversation with her, which include the words
“office mess,” “attendance,” and “overall organization.”
Serednyj’s argument contradicts the record facts, in-
cluding her own testimony, that her employment had
already terminated on March 13, 2007, following a
meeting with Mount. Thus, there is no supporting
evidence that Beverly began to “think” of reasons to
terminate her employment after March 21, 2007, as she
was no longer an employee of Beverly.
16 No. 10-2201
Finally, Serednyj attempts to show pregnancy discrimi-
nation by summarily stating, without any record citation,
that Beverly terminated her while she had paid leave
remaining. This argument is not supported by the
record evidence, which reflects that Beverly did pay
Serednyj all of her unused sick and vacation leave
pursuant to its policies.
These four pieces of evidence, taken together, fail to
create a convincing mosaic of circumstantial evidence
from which a jury could infer intentional discrimination
on the part of Beverly. We now turn to Serednyj’s
indirect case.
2. Indirect Case
As noted above, a plaintiff may also use the indirect,
burden-shifting approach to frame her case. The indirect
method requires a plaintiff to first establish a prima
facie case of discrimination. For purposes of Serednyj’s
pregnancy discrimination claim, Serednyj must show
that: (1) she was pregnant and her employer knew she
was pregnant; (2) she was performing her job duties
satisfactorily; (3) she was terminated; and (4) similarly
situated, nonpregnant employees were treated more
favorably. Griffin, 489 F.3d at 844 (citing Clay v. Holy
Cross Hosp., 253 F.3d 1000, 1005 (7th Cir. 2001)). Once a
plaintiff sets forth a prima facie case of discrimination,
the burden shifts to the defendant to articulate a
legitimate, nondiscriminatory reason for terminating
her. Id. If such a reason is advanced, the plaintiff can
survive summary judgment only by showing that the
No. 10-2201 17
defendant’s reason was a pretext for intentional discrimi-
nation. Id.
The first, second, and third elements of Serednyj’s
prima facie case are not in dispute. Serednyj is a member
of a protected class, was performing her job satisfactorily,
and was subject to an adverse employment action. With
respect to the fourth element of her prima facie case,
Serednyj claims that similarly situated, nonpregnant
employees were treated more favorably than she, and
that disabled or pregnant employees were also treated
more favorably than she.
Employees are similarly situated if they are “directly
comparable to her in all material respects.” Patterson v.
Avery Dennison Corp., 281 F.3d 676, 680 (7th Cir. 2002).
“This normally entails a showing that the two employees
dealt with the same supervisor, were subject to the
same standards, and had engaged in similar conduct
without such differentiating or mitigating circumstances
as would distinguish their conduct or the employer’s
treatment of them.” Radue v. Kimberly-Clark Corp., 219
F.3d 612, 617-18 (7th Cir. 2000). The similarly situated
inquiry is “a flexible one that considers ‘all relevant
factors, the number of which depends on the context of
the case.’ ” Humphries v. CBOS West, Inc., 474 F.3d 387, 405
(7th Cir. 2007) (quoting Radue, 219 F.3d at 617). A plaintiff
need not show complete identity with a proposed com-
parator, but she must show “ ‘substantial similarity.’ ” Id.
(quoting Radue, 219 F.3d at 618).
Serednyj’s would-be comparators include a woman
named “Bonnie,” Susan Eckman, Carol Williams, Pam
18 No. 10-2201
Seibert, and Gina Sizemore. With respect to “Bonnie,”
Christe testified that “Bonnie” is a CNA “in her late
fifties” who received assistance transporting and trans-
ferring patients. Christe did not know Bonnie’s last
name, and does not know if she has a medical restriction.
Mount testified that since November 2004, the only indi-
vidual employed by Beverly with the first name of
“Bonnie” was Bonnie Curtis, a CNA, who in fact
never requested nor received any accommodation
from Beverly.
Susan Eckman was employed by Beverly as a CNA
and LPN between September 2006 and March 2007.
According to Serednyj, Eckman had breast augmentation
surgery during this time period, and was provided
light duty work. Serednyj testified that she had no
personal knowledge of this, but was told this informa-
tion from her friend and co-worker, Gina Sizemore.
Moreover, Mount testified that Eckman never sought
nor received an accommodation for a breast augmentation.
Carol Williams was employed by Beverly who,
according to Serednyj, worked as a CNA and suffered
from and was being treated for an L3, L4 disc degenera-
tion in her back. Serednyj claims that Williams’ disc
problem was not work-related; however, Beverly
allowed her to work with significant lifting, bending,
and twisting restrictions. Mount testified that Williams
was an LPN, and suffered two non-work-related injuries
during her employment. As a result of her non-work-
related injuries, Williams was not eligible for light duty
under Beverly’s modified work policy, but took two leaves
No. 10-2201 19
of absence instead. Williams also sustained two work-
related injuries in 2006 and 2007. The record does not
indicate whether Williams asked for and received an
accommodation for her work-related injuries, but if she
had, it would have been pursuant to Beverly’s modified
work policy.
Pam Seibert was a speech therapist who worked at
Beverly’s Golden Living facility with Serednyj. Although
Seibert and Serednyj worked at the same facility,
Seibert was an employee of Aegis Therapies, a separate
company with separate employment policies. Because
Seibert had a long-term medical condition, Aegis
allowed her to use a rolling walker to move about the
workplace and allowed her to take breaks at her desk.
Serednyj alleges that Seibert was terminated within
thirty days of requesting the accommodation. To the
extent that Serednyj’s claim is true, Seibert is not
similarly situated to Serednyj because Seibert was not
an employee of Mount, and was not subject to Beverly’s
modified work policy.
Gina Sizemore worked as a CNA at the Golden
Living facility, and was pregnant at approximately the
same time as Serednyj. Serednyj testified that she and
Sizemore were friends, and that Sizemore told her that
she (Sizemore) had to go on FMLA due to restrictions
from her pregnancy. Sizemore tried to return to work
following the expiration of her FMLA leave, but was
terminated by Mount because her doctor would not
remove her restrictions. Sizemore does not help
Serednyj’s case for two significant reasons. First,
20 No. 10-2201
Serednyj’s evidence is based on inadmissible hearsay.
And second, Sizemore is actually an example of Beverly
applying its modified work policy uniformly.
Serednyj has not come forward with a similarly
situated, nonpregnant Beverly employee who was
treated more favorably than she. Serednyj’s evidence in
this regard lacks reliability, and in certain circum-
stances, is belied by the record. Having failed to set
forth a prima facie case, we need not reach the issue
of pretext, and the inquiry ends. See Cowan v. Glenbrook
Sec. Servs., Inc., 123 F.3d 438, 445 (7th Cir. 1997) (“We
need not reach the issue of pretext, as plaintiff has failed
to state a prima facie case of discriminatory discharge
under McDonnell Douglas.”). Accordingly, the district
court correctly granted Beverly’s motion for summary
judgment on Serednyj’s gender and pregnancy discrim-
ination claims.
B. ADA
Title I of the ADA 2 prohibits employers from discrim-
inating “against a qualified individual with a disability
2
Significant changes to the ADA went into effect on January 1,
2009, after the events in this case occurred. See ADA Amend-
ments Act of 2008, Pub.L. No. 110-325, 122 Stat. 3553 (2008).
Because Congress did not express an intent that the changes
take effect retroactively, we are bound by the law in place
prior to the amendments. Fredricksen v. United Parcel Serv. Co.,
581 F.3d 516, 521 n. 1 (7th Cir. 2009).
No. 10-2201 21
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. § 12112(a). Title I also provides
that an employer discriminates against a qualified indi-
vidual with a disability by “not making reasonable ac-
commodations to the known physical or mental limita-
tions of an otherwise qualified individual with a disabil-
ity.” 42 U.S.C. § 12112(b)(5)(A). Serednyj claims that
Beverly should have granted her request for an accom-
modation under its modified work policy, and that
Beverly’s failure to grant her request constitutes both a
failure to accommodate and disability discrimination,
in violation of Title I of the ADA. Accordingly, we
will begin our discussion with the threshold issue of
whether Serednyj’s pregnancy-related complications
rendered her “disabled” within the meaning of the ADA.
This is an issue of first impression in the federal circuit
courts of appeal.
The term “disability” is defined under the ADA to
mean, with respect to an individual: “(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. § 12102(2). Serednyj
proceeds under all three definitions.
22 No. 10-2201
1. Section 12102(2)(A)
a. Physical or Mental Impairment
The Equal Employment Opportunity Commission
(“EEOC”) regulations define “physical or mental impair-
ment” as “any physiological disorder or condition”
that affects one or more body systems, including the
reproductive system. 29 C.F.R. § 1630.2(h)(1). The EEOC’s
Interpretive Guidance specifically excludes pregnancy
as a physical impairment. 29 C.F.R. Pt. 1630, App.
§ 1630.2(h) (“conditions, such as pregnancy, that are
not the result of a physiological disorder are also not
impairments”). Courts that consider these regulations
consistently find that pregnancy, absent unusual cir-
cumstances, is not a physical impairment. See Gudenkauf
v. Stauffer Comm., Inc., 922 F. Supp. 465, 473 (D. Kan. 1996)
(“Pregnancy is a physiological condition, but it is not a
disorder. Being the natural consequence of a properly
functioning reproductive system, pregnancy cannot be
called an impairment.”); see also Gabriel v. City of Chicago, 9
F. Supp. 2d 974, 980 (N.D. Ill. 1998) (overruling its prior
decision in Chapsky v. Baxter V. Mueller Div., 1995 WL
103299 (N.D. Ill. March 9, 1995), that pregnancy is a
disability per se); Darian v. Univ. of Massachusetts Boston,
980 F. Supp. 77, 85 (D. Mass. 1997) (holding that al-
though “pregnancy per se is not covered by the ADA,
the Act does not necessarily exclude all pregnancy-
related conditions and complications”); Villarreal v. J.E.
Merit Constructors, Inc., 895 F. Supp. 149, 152 (S.D. Tex.
1995) (holding that absent unusual circumstances, preg-
nancy is not a physical impairment under the ADA).
No. 10-2201 23
Defining what constitutes an “unusual circumstance”
arising out of a pregnancy has been the subject of many
district court decisions. The most persuasive decisions
draw a distinction between a normal, uncomplicated
pregnancy, and an abnormal one—i.e., one with a compli-
cation or condition arising out of, but distinguishable
from, the pregnancy. See Gabriel, 9 F. Supp. 2d at 981;
Darian, 980 F. Supp. at 87; Hernandez v. City of Hartford,
959 F. Supp. 125, 130 (D. Conn. 1997); Cerrato v. Durham,
941 F. Supp. 388, 392 (S.D.N.Y. 1996). In this regard, the
analysis in Hernandez is worth a brief discussion.
In Hernandez, the district court held that pregnancy-
related complications may constitute physical impair-
ments if they are the product of a physiological disor-
der. 959 F. Supp. at 130. The district court defined “physio-
logic” as “characteristic of or conforming to the normal
functioning or state of the body or a tissue or organ,” and
concluded that “a physiological disorder is an abnormal
functioning of the body or a tissue or organ.” Id. (quoting
D ORLAND’S M EDICAL D ICTIONARY (27th ed. 1988)). Citing
the American Medical Association’s Council on Scientific
Affairs, the district court gave examples of pregnancy-
related conditions that “ ‘may be disabling for further
work.’ ” Id. (quoting Cerrato, 941 F. Supp. at 393). Among
those complications were the “ ‘premature rupture of
membranes, vaginal bleeding . . . risk of premature
[birth] . . . and a number of others.’ ” Id. (quoting Cerrato,
941 F. Supp. at 393). Applying these definitions to the
plaintiff’s case, the district court concluded that the plain-
tiff’s premature labor that was controlled only through
24 No. 10-2201
medication “was not a function of a normal pregnancy.
It was a physiological disorder.” Id.
Serednyj’s pregnancy-related complications included,
inter alia, spotting, cramping, and an increased risk of
miscarriage. In addressing these medical issues, her
doctor prescribed progesterone suppositories and bed
rest for two weeks. We find this evidence may support
the inference that these complications were not the
result of a normal pregnancy, and were, in fact, physio-
logical disorders of the reproductive system. See Spees v.
James Marine, Inc., 617 F.3d 380, 397 (6th Cir. 2010) (“There
thus appears to be a general consensus that an
increased risk of having a miscarriage at a minimum
constitutes an impairment falling outside the range of a
normal pregnancy.”). However, even if the evidence
supported that inference, we find, for the reasons set
forth below, that her physical impairment did not sub-
stantially limit a major life activity.
b. Substantially Limits a Major Life Activity
To meet the definition of disability, Serednyj must also
show that her physical impairment substantially limits
a major life activity. Serednyj claims that her physical
impairment substantially limited her major life activities
of reproduction and lifting.
The term “substantially limited” refers to the inability
to perform a major life activity as compared to the
average person in the general population, or a significant
restriction “as to the condition, manner, or duration” under
No. 10-2201 25
which an individual can perform a particular activity.
29 C.F.R. § 1630.2(j). In determining whether a dis-
ability “substantially limits” a person from performing
a major life activity, courts consider “ ‘the nature and
severity of the impairment; the duration or expected
duration of the impairment; and the permanent or long
term impact, or the expected permanent or long term
impact of or resulting from the impairment.’ ” Kampmier v.
Emeritus Corp., 472 F.3d 930, 937 (7th Cir. 2007) (quoting
29 C.F.R. § 1630.2(j)(2)(i)-(iii)). Thus, courts generally
find that short-term, temporary restrictions, with little
or no long-term impact, are not substantially limiting
and do not render a person disabled for purposes of the
ADA. See 29 C.F.R. Pt. 1630, App. § 1630.2(j) (“[T]emporary,
non-chronic impairments of short duration, with little
or no long term or permanent impact, are usually not
disabilities. Such impairments may include, but are not
limited to, broken limbs, sprained joints, concussions,
appendicitis, and influenza.”); Waggoner v. Olin Corp., 169
F.3d 481, 484 (7th Cir. 1999) (“Disability does not include
temporary medical conditions.”); Hamm v. Runyon, 51
F.3d 721, 725 (7th Cir. 1995) (“Under the ADA, ‘[i]nter-
mittent, episodic impairments are not disabilities.’ ”
(quoting Vande Zande v. State of Wis. Dep’t of Admin., 44
F.3d 538, 544 (7th Cir. 1995))).
Pregnancy is, by its very nature, of limited duration,
and any complications which arise from a pregnancy
generally dissipate once a woman gives birth. Accordingly,
an ADA plaintiff asserting a substantial limitation of
a major life activity arising from a pregnancy-related
physiological disorder faces a tough hurdle. A case
26 No. 10-2201
from the Southern District of New York, LaCoparra v.
Pergament Home Ctrs., Inc., is illustrative of this point. 982
F. Supp. 213 (S.D.N.Y. 1997), overruled on other grounds
by Kosakow v. New Rochelle Radiology Assocs., P.C., 274
F.3d 706, 724 (2d Cir. 2001). In that case, the plaintiff
suffered from a history of infertility, a prior miscarriage,
and spotting and cramping during her pregnancy, and
was granted leave from her employer in April 1994. Id.
at 217, 228. The district court granted defendant’s
motion for summary judgment on plaintiff’s ADA claim
because there was no evidence that her conditions “were
chronic or resulted in long-term or permanent impact.” Id.
at 228. The district court reasoned that the spotting oc-
curred only in the first trimester; she was on bed rest for a
short period of time; her activities were limited only
during her pregnancy; and she was physically able to
return to work by January 1995. Id.
District court decisions from this circuit also guide
our analysis. For example, in Payne v. State Student Assis-
tance Comm., the plaintiff suffered from pregnancy-
induced hypertension. 2009 WL 1468610, at *3 (S.D. Ind.
May 22, 2009). The district court held that her condi-
tion did not substantially limit her in the major life
activity of reproduction, reasoning that her condition
was temporary, lasting only as long as the pregnancy,
and she introduced no evidence to show that she
suffered any long-term limitations as a result. Id. at *8.
See also Muska v. AT&T Corp., 1998 WL 544407, at *9 (N.D.
Ill. Aug. 25, 1998) (holding that plaintiff’s pregnancy-
induced complication of fetal distress did not sub-
stantially limit her in the major life activity of reproduc-
No. 10-2201 27
tion, because the plaintiff’s impairment lasted only two
months, and there was no evidence that her impairment
jeopardized her ability to carry a fetus to term in the
future). But see Gabriel, 9 F. Supp. 2d at 983 (finding
an issue of fact as to whether plaintiff was substantially
limited in the major life activity of standing, where her
swollen feet, back pain, and stomach pain resulted
in her being unable to stand for long periods of time
throughout her pregnancy, she delivered two months
prematurely, and her condition persisted even after
she gave birth); Hernandez, 959 F. Supp. at 131 (finding
an issue of fact as to whether plaintiff was substantially
limited in the major life activity of working, where
her doctor noted the severity of her condition of
premature labor and asked that she be allowed to
work from home, her condition lasted throughout her
pregnancy and was controlled only through the use of
medication, and she was unable to perform the
essential functions of her job due to the negative impact
that work-related stress had on her condition).
Serednyj’s pregnancy-related complications did not
last throughout her pregnancy or extend beyond the
time she gave birth. Complications arising from her
pregnancy began at the end of February 2007, when
her doctor ordered her to refrain from heavy lifting or
strenuous activities. By her own admission, her doctor
removed all of her restrictions by June 2007, approximately
four months after her complications arose, and several
months before she gave birth. Although she was on bed
rest, this treatment lasted only from March 2, 2007,
through March 14, 2007, and she was physically able to
28 No. 10-2201
return to work in December 2007, approximately three
months after giving birth. In addition, there is no
evidence in the record reflecting that her ability to re-
produce in the future and carry a fetus to term was im-
pacted by her pregnancy-induced complications. In
fact, Serednyj’s subsequent pregnancy presented no
pregnancy-related complications.
Moreover, the record indicates that her lifting re-
striction was of limited duration, and not an abnormal
condition of her pregnancy. Indeed, the inability to
do heavy lifting is not a substantial limitation as
compared to the average person. Zahurance v. Valley
Packaging Indus., Inc., 397 Fed. Appx. 246, 248 (7th Cir.
2010) (holding that a 20-pound lifting restriction does
not substantially limit ability to lift); Mays v. Principi,
301 F.3d 866, 869 (7th Cir. 2002) (expressing doubt
whether 10-pound lifting restriction substantially limits
ability to lift); Ray v. Glidden Co., 85 F.3d 227, 229 (5th
Cir. 1996) (per curiam) (holding that the inability to
perform “heavy lifting” does not substantially limit
ability to lift). Contrary to her position, the fact that her
lifting restriction disqualified her from her position at
Beverly is not evidence of a substantial limitation. Mack
v. Great Dane Trailers, 308 F.3d 776, 781 (7th Cir. 2002)
(“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.”).
On this record, we find that Serednyj’s pregnancy-
related complications did not substantially limit her in
the major life activities of reproduction or lifting. Her
No. 10-2201 29
pregnancy-related impairments were of limited dura-
tion, and there is no evidence that she has suffered any
long-term limitations as a result. Because Serednyj fails
to establish that she suffered from a disability, her
ADA claim under Section 12102(2)(A) fails as a matter
of law.
2. Section 12102(2)(B): Record of Disability
To succeed under her “record of disability” claim,
Serednyj must again show that she had a “physical im-
pairment that substantially limits one or more major
life activities.” 29 C.F.R. § 1630.2(k). As demonstrated
above, Serednyj does not have evidence to that effect,
and thus, her ADA claim under Section 12102(B) also
fails as a matter of law.
3. Section 12102(2)(C): Regarded as Having an Im-
pairment
To fall within the statutory definition of a “regarded
as” claim, a plaintiff must show that: (1) the employer
mistakenly believes the employee has an impairment
that substantially limits a major life activity, or (2) the
employer mistakenly believes the employee’s actual, but
nonlimiting, impairment substantially limits a major life
activity. Nese v. Julian Nordic Const. Co., 405 F.3d 638, 641
(7th Cir. 2005) (citing Amadio v. Ford Motor Co., 238 F.3d
919, 925 (7th Cir. 2001)). “In other words, the employer
‘must believe either that one has a substantially limiting
impairment that one does not have or that one has a
30 No. 10-2201
substantially limiting impairment when, in fact, the
impairment is not so limiting.’ ” Id. (quoting Sutton v.
United Air Lines, Inc., 527 U.S. 471, 489 (1999)). The purpose
of the “regarded as” prong is to prohibit employers
from making ill-informed decisions based on myth or
stereotype. Moore v. J.B. Hunt Transport, Inc., 221 F.3d
944, 954 (7th Cir. 2000).
Serednyj argues that Beverly regarded her as disabled
because it knew that she suffered a prior miscarriage,
that she was having pregnancy-related complications,
and that her doctor had placed her on lifting restric-
tions. There is no evidence in the record that Beverly
misperceived the nature of her condition, or denied her
request for light duty work based on a stereotype of
pregnant women suffering from complications. If any-
thing, the record shows that Beverly did not grant
her request for light duty work under its modified work
policy because it truly believed that she was not disabled
under the ADA; otherwise, it would have granted her
an accommodation rather than deny her request out-
right. We therefore find that the district court correctly
granted summary judgment on Serednyj’s ADA claims.
C. Retaliation
A Title VII plaintiff may prove her retaliation claim
under the direct and indirect methods of proof. Tomanovich
v. City of Indianapolis, 457 F.3d 656, 662 (7th Cir. 2006).
The direct method requires her to show that: (1) she
engaged in protected activity; (2) she suffered an adverse
employment action; and (3) there is a causal connection
No. 10-2201 31
between the protected activity and the adverse action. Id.
at 663. The indirect method requires her to show that:
(1) she engaged in statutorily protected activity; (2) she
was performing her job to her employer’s legitimate
expectations; (3) she suffered an adverse employment
action; and (4) she was treated less favorably than
similarly situated employees who did not engage in
statutorily protected activity. Id. Once a prima facie case
is set forth, the burden-shifting pretext analysis takes
place. Id. Serednyj proceeds under both methods of proof.
Serednyj claims that after she submitted her March 21,
2007, letter formally requesting an accommodation pur-
suant to the PDA and ADA, Beverly began searching
for reasons to fire her. Specifically, Serednyj cites to
Mount’s note that states, “office mess, attendance,
overall organization,” and has the dates “3/23/2007” and
“3/26/2007” written on it.
For this claim to survive under either the direct or
indirect method of proof, Serednyj must bring forth
evidence from which a reasonable jury could conclude
that she suffered an adverse employment action. Serednyj
admits that at the time she submitted her March 21,
2007, letter requesting an accommodation, she was no
longer an employee of Beverly. We can think of no
reason why Beverly would look for reasons to fire her
when she was no longer an employee of the company.
If anything, the evidence reflects that Mount considered
her request, contacted the Division Manager of Human
Resources, Connie Rebey, to discuss the request, and called
Serednyj back to inform her, once again, that she was not
32 No. 10-2201
eligible for light duty work under the modified work
policy. This is not evidence of retaliation.
Serednyj also claims that Beverly fired her even though
she had paid leave remaining. As noted previously, the
record reflects that Beverly paid all of Serednyj’s sick and
vacation leave pursuant to its policies. Serednyj does not
explain how paying the leave owed to a terminated
employee is a retaliatory, materially adverse action
taken against a former employee.
Lastly, Serednyj claims that Beverly indicated on her
state welfare form that she was “fired.” According to
Serednyj, this is retaliatory because: (1) Beverly had
previously taken the position that she “quit,” and (2) a
finding that she was “fired” could have jeopardized her
receipt of benefits. Serednyj has consistently taken the
position in this litigation that she was fired. As the
district court recognized, Beverly reported what
Serednyj contends is true. Further, Serednyj received
state welfare benefits; thus, her contention that Beverly
“could have” jeopardized her benefits is mere conjecture.
Accordingly, the district court’s grant of summary judg-
ment on Serednyj’s retaliation claim is affirmed.
III. Conclusion
For the foregoing reasons, we A FFIRM the district
court’s grant of summary judgment against Serednyj.
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