Renee Majors v. General Electric Company

In the

United States Court of Appeals
For the Seventh Circuit

No. 12-2893

R ENEE S. M AJORS,
Plaintiff-Appellant,
v.

G ENERAL E LECTRIC C OMPANY,
Defendant-Appellee.

Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 10-C-1731—Larry J. McKinney, Judge.

A RGUED JANUARY 14, 2013—D ECIDED A PRIL 16, 2013

Before E ASTERBROOK, Chief Judge, H AMILTON, Circuit
Judge, and M ILLER, District Judge.Œ
M ILLER, District Judge. Renee S. Majors, a long-time
employee at General Electric Company’s Bloomington,
Indiana plant, filed suit alleging that GE violated the
Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.,

Œ
The Honorable Robert L. Miller, Jr. of the Northern District
of Indiana, sitting by designation.
2 No. 12-2893

and Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e et seq., when it denied her temporary and per-
manent positions to which she was otherwise entitled
under the seniority-based bidding procedure the plant
used to fill vacant positions. Ms. Majors also alleged
that GE retaliated against her, in violation of Title VII,
for filing Equal Employment Opportunity Commission
charges of discrimination when she was denied over-
time hours and the opportunity to work “lack of work”
Fridays, and that GE constructively discharged her
when she elected to retire. The district court granted
GE summary judgment on all claims. Ms. Majors ap-
peals that decision with the exception of her Title VII
discrimination claim. We affirm.

I. B ACKGROUND
Ms. Majors worked at GE’s Bloomington plant for 32
years. In 2000, she suffered a work-related injury to her
right shoulder that left her limited to lifting no more
than twenty pounds and precluded her from work
above shoulder level with her right arm. The restrictions
were considered temporary at first, but according to
her medical file maintained by GE, the restrictions
later were determined to be permanent.
The Bloomington GE plant manufactures side-by-side
refrigerators. The workforce dropped from 3,000 em-
ployees in 2000 to 750-800 employees in 2009. A collective
bargaining agreement between GE and the union gov-
erns the terms and conditions of employment for
the Bloomington plant hourly employees, including
Ms. Majors. The CBA requires that vacant temporary or
No. 12-2893 3

permanent positions be awarded to the most senior
eligible employee who bids on the position. The onsite
medical clinic, which is operated by a third party,
received notice of a job award. The clinic staff reviews
the position and the employee’s medical file to decide
whether any restrictions affect the employee’s ability to
perform the position, and if so, whether the restrictions
can be accommodated. The clinic staff informs GE’s
human resources department whether the employee is
medically qualified for the position. The position goes
to the next most senior bidder if the employee isn’t medi-
cally qualified.
Ms. Majors held several different positions at the
plant, including a stint as a purchased material auditor
from December 2000 to June 2001. She worked as a
quality control inspector in Assembly, performing
quality audits on refrigerators, from February 2003
until her retirement in October 2009.
In May 2009, Ms. Majors was the senior eligible
bidder for a temporary purchased material auditor posi-
tion. A purchased material auditor inspects, tests, and
audits a variety of purchased components and internally
manufactured parts for conformance to engineering
specifications and quality standards before the com-
ponent or part is released to production or shipment.
The position requires “intermittent movement of heavy
objects,” which is the focus of this dispute. Lead Occupa-
tional Health Nurse Toni Kristoff reviewed the job
award and noted that Ms. Majors had permanent lifting
restrictions and the job description required intermittent
4 No. 12-2893

movement of heavy objects. Ms. Kristoff discussed the
position’s lifting requirements with Labor Resources
Manager Linda Schneider and discovered that lifting
more than twenty pounds was an essential function of
the position. Consequently, Ms. Kristoff determined
Ms. Majors was not medically qualified for that position.
Ms. Majors let management know that she believed
she could perform the auditor position. GE further in-
vestigated the position’s requirements and whether
Ms. Majors’s lifting restrictions could be accommodated.
A group that included Ms. Kristoff, Ms. Schneider, and
an ergonomic technical specialist reviewed the auditor
job description and visited the work area. The group
discussed the position’s requirements with a current
auditor and the manager of the auditors, both of whom
confirmed that lifting parts and material weighing
more than twenty pounds was an essential function of
the position. Ms. Schneider and the ergonomic specialist
weighed objects the auditor had to lift and confirmed
the objects weighed more than twenty pounds. A nurse
practitioner reviewed and corroborated Ms. Kristoff’s
conclusion that Ms. Majors wasn’t medically qualified
for the position. Ms. Kristoff and the ergonomic
specialist discussed the position’s lifting requirements
with Ms. Majors, who suggested that a material handler
could do the lifting. Ms. Majors testified in her deposi-
tion that she repeatedly told Ms. Kristoff that the
lifting restrictions no longer limited her.
GE decided Ms. Majors couldn’t perform an essential
function of the auditor position because of her per-
No. 12-2893 5

manent lifting restrictions, and the company gave the
job to the next most senior eligible bidder. Ms. Majors
filed a charge of discrimination with the EEOC on May 22,
2009 alleging she was denied the temporary auditor
position because of her disability (in violation of the
ADA) and her sex (in violation of Title VII).
Ms. Majors claims that as a result of filing her EEOC
charge, she was denied overtime hours and the oppor-
tunity to work on “lack of work” Fridays. A “lack of
work” day occurs when no production is scheduled at
the plant and few employees are scheduled to work.
Ms. Majors emphasizes the difference between her over-
time hours worked and “lack of work” Friday assign-
ments compared to those of three other quality control
inspectors at the plant and her replacement. In 2009,
GE offered a special early retirement program that re-
quired eligible employees to elect to participate by
August 31, 2009. Ms. Majors claims that seven days
before the deadline, shortly after returning from her
mother’s funeral, she chose to participate in the
program and retire in November 2009 due to the dis-
crimination and retaliation.
In October, after she had elected to retire but before
her retirement began, Ms. Majors applied for and, as
the senior eligible bidder, was awarded a permanent
auditor position. Ms. Kristoff again reviewed the
award and confirmed with the auditor supervisor that
the position’s lifting requirements hadn’t changed.
Ms. Kristoff determined Ms. Majors wasn’t medically
qualified for the auditor position, and the job went to
the next most senior eligible bidder.
6 No. 12-2893

Ms. Majors filed a second charge of discrimination
on March 30, 2010 alleging that she was denied the per-
manent auditor position because of her disability and
sex. Ms. Majors also alleged retaliation and constructive
discharge. Ms. Majors filed suit, alleging that by not
awarding her either the temporary or permanent
auditor position, GE discriminated against her in viola-
tion of the ADA and Title VII. Ms. Majors claimed GE
retaliated against her, violating Title VII, by denying her
overtime hours and the chance to work Fridays that
were “lack of work” days. Ms. Majors also alleged GE
constructively discharged her when she retired. The
district court granted GE summary judgment as to all
of Ms. Majors’s claims, and Ms. Majors appeals the
district court’s decision with the exception of her
Title VII discrimination claim.

II. S TANDARD OF R EVIEW
We review a district court’s decision to grant sum-
mary judgment de novo. Goetzke v. Ferro Corp., 280 F.3d
766, 774 (7th Cir. 2002). Summary judgment is appro-
priate if “there is no genuine dispute as to any material
fact.” FED. R. C IV. P. 56. Although intent and credibility
are often critical issues in employment discrimination
cases, no special summary judgment standard applies
to such cases. Alexander v. Wisconsin Dep’t of Health &
Family Serv., 263 F.3d 673, 681 (7th Cir. 2001). In an em-
ployment discrimination case, as in any case, “we must
construe all facts and draw all reasonable inferences in
the light most favorable to the nonmoving party.”
No. 12-2893 7

Goetzke v. Ferro Corp., 280 F.3d at 774; Haugerud v. Amery
Sch. Dist., 259 F.3d 678, 689 (7th Cir. 2001). Summary
judgment is appropriate if the nonmoving party “fails
to make a showing sufficient to establish the existence
of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial.”
Ellis v. CCA of Tennessee LLC, 650 F.3d 640, 646 (7th
Cir. 2011) (quoting Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986)).

III. D ISCUSSION
A. ADA Discrimination
Ms. Majors first contends the district court improperly
granted summary judgment on her claim that GE dis-
criminated against her when she wasn’t promoted to
a purchased material auditor position due to her perma-
nent work restrictions. The ADA proscribes an em-
ployer from “discriminat[ing] against a qualified indi-
vidual on the basis of disability” in job application pro-
cedures and in the hiring or advancement of employees.
42 U.S.C. § 12112(a). Depending on the issues raised by
a summary judgment motion, an ADA plaintiff must
identify a genuine issue of material fact as to whether
(1) she is disabled; (2) she is able to perform the
essential functions of the job either with or without rea-
sonable accommodation; and (3) she suffered an ad-
verse employment action because of her disability. Povey
v. City of Jeffersonville, Ind., 697 F.3d 619, 622 (7th Cir.
2012). Ms. Majors argues that she was disabled within
all three definitions of disability under the ADA.
8 No. 12-2893

Disability is defined as “(A) a physical or mental impair-
ment that substantially limits one or more major life
activities of [the] individual; (B) a record of such an
impairment; or (C) being regarded as having such an
impairment.” 42 U.S.C. § 12102(1). Ms. Majors ap-
plied for and was denied the purchased material
auditor positions in 2009, so the amended ADA ap-
plies to Ms. Majors’s allegations. Lifting is a major life
activity under today’s law. 42 U.S.C. § 12102(2)(A); ADA
Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat.
3553 (2008). Relying on pre-amendment case law,1 the
district court concluded that a physical impairment that
resulted in a permanent twenty pound lifting restriction
didn’t substantially limit Ms. Majors’s lifting ability.
Ms. Majors argues that the amendments broadened the
scope of the ADA’s definition of disability, so we should
disregard pre-amendment precedent and reconsider
whether a permanent twenty pound lifting restriction
is a substantial limitation. At her deposition, however,

1
The district court cited Serednyj v. Beverly Healthcare, LLC, 656
F.3d 540, 555 (7th Cir. 2011) (“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
F. App’x 246, 248 (7th Cir. 2010) (lifting restriction of no
more than thirty-five pounds on an occasional basis and twenty
pounds on a regular basis prior to amendments was insuf-
ficient to establish a substantial limitation to a major life
activity); Mays v. Principi, 301 F.3d 866, 869 (7th Cir. 2002),
abrogated on other grounds by EEOC v. United Airlines, Inc.,
693 F.3d 760 (7th Cir. 2012) (ten pound lifting restriction
is not a disability).
No. 12-2893 9

Ms. Majors testified that she wasn’t limited by the twenty
pound lifting restriction, and in her summary judg-
ment response, she conceded that the lifting restric-
tion didn’t apply to her. We don’t need to decide
whether Ms. Majors has a disability, though, because
there was no issue of fact as to whether Ms. Majors was
a qualified individual, entitling GE to summary judg-
ment on the ADA claim.
A qualified individual under the ADA is a person
with a disability who is able to perform the essential
functions of the job either with or without reasonable
accommodation. 42 U.S.C. § 12111(8); see also Lloyd v.
Swifty Transp., Inc., 552 F.3d 594, 601 (7th Cir. 2009).
Ms. Majors contends she was a qualified individual
because she could lift objects weighing more than
twenty pounds with reasonable accommodation, but
GE failed to accommodate her restriction.
First, “[t]o determine whether a job function is essential,
we look to the employer’s judgment, written job descrip-
tions, the amount of time spent on the function, and the
experience of those who previously or currently hold
the position.” Rooney v. Koch Air, LLC, 410 F.3d 376, 382
(7th Cir. 2005) (citing 29 C.F.R. § 1630.2(n)(3)). GE as-
serted that lifting objects weighing over twenty pounds
is an essential function of the auditor position. When
Ms. Majors expressed her belief that she could perform
the auditor position, GE carefully evaluated the posi-
tion’s lifting requirements. The auditor job description
requires “intermittent movement of heavy objects,” and
an employee who held the purchased material auditor
10 No. 12-2893

position and the manager of the others holding the
position both confirmed that lifting parts and material
weighing over twenty pounds is an essential part of the
job. GE’s labor resources manager and an ergonomic
technical specialist weighed objects a purchased mate-
rial auditor would be required to lift, such as compres-
sors and boxes of screws, and verified that the objects
weighed more than twenty pounds. A second nurse
reviewed and confirmed Ms. Kristoff’s conclusion that
Ms. Majors wasn’t medically qualified for the posi-
tion. We agree with the district court that lifting ob-
jects weighing more than twenty pounds is an essential
function of the purchased material auditor position.
As a result of Ms. Majors’s permanent restriction pro-
hibiting her from lifting more than twenty pounds,
Ms. Majors couldn’t perform an essential function of
the auditor position without accommodation. Ms. Majors
bears the burden of establishing that she could perform
the essential functions of the position with or without
reasonable accommodation, and can’t meet this burden
if the only accommodations suggested were unreason-
able. Gratzl v. Office of Chief Judges of 12th, 18th, 19th, &
22nd Judicial Circuits, 601 F.3d 674, 680 (7th Cir. 2010).
The only accommodation Ms. Majors proposed was to
have a material handler lift the heavy objects for her.2 To
have another employee perform a position’s essential

2
Ms. Majors hasn’t argued on appeal that GE, to provide a
reasonable accommodation, had to “try and see” if she could
perform the purchased material auditor job despite her med-
ical records.
No. 12-2893 11

function, and to a certain extent perform the job for
the employee, is not a reasonable accommodation.
Cochrum v. Old Ben Coal Co., 102 F.3d 908, 912 (7th Cir.
1996) (employee’s suggested accommodation of hiring a
helper to perform an essential function of the job, the
overhead work required by the position, was not a rea-
sonable accommodation). We agree with the district
court that a material handler doing the heavy lifting for
Ms. Majors wasn’t a reasonable accommodation and
so isn’t required under the ADA.3 Gratzl v. Office of Chief
Judges, 601 F.3d at 681. Ms. Majors hasn’t met her burden
of establishing that she could perform the purchased
material auditor position with a reasonable accommoda-
tion. She hasn’t pointed to evidence sufficient to allow
a fact-finder to decide that she is a qualified individual;
without this element, summary judgment is appropriate
for her discrimination claim.
Ms. Majors frames her argument as a failure to accom-
modate claim, alleging that GE failed to provide her a
reasonable accommodation. She argues that GE had
the burden to prove that her proposed accommodation
of another employee’s doing the heavy lifting would be
an undue hardship on the business. This argument
ignores that this record won’t allow a finding that she is
a qualified individual. An ADA plaintiff can establish

3
Circumstances might exist when employees working in
teams are able to share duties among themselves, so that such
sharing might be a form of reasonable accommodation. See
Miller v. Illinois Dep’t of Transp., 643 F.3d 190, 199-200 (7th
Cir. 2011). That is not today’s case.
12 No. 12-2893

discrimination by showing the employer failed to accom-
modate the employee, but she first must establish that
she is a qualified individual with a disability. Hoffman v.
Caterpillar, Inc., 256 F.3d 568, 572 (7th Cir. 2001).
The defendant has the burden to prove that the accom-
modation would create an undue hardship on the
business, but the plaintiff must first “show that the ac-
commodation [she] seeks is reasonable on its face.”
Oconomowoc Residential Programs, Inc. v. City of Milwaukee,
300 F.3d 775, 783 (7th Cir. 2002) (citing US Airways, Inc.
v. Barnett, 535 U.S. 391, 401-02 (2002)). The accommoda-
tion Ms. Majors seeks—another person to perform an
essential function of the job she wants—is, as a matter
of law, not reasonable, so GE isn’t required to show
the accommodation would create an undue hardship.
Ms. Majors hasn’t pointed to evidence that could sup-
port a finding that she was a qualified individual;
without that, she can’t show that GE failed to provide
a reasonable accommodation.4 Gratzl v. Office of Chief

4
The amendments to the ADA clarified that employers
needn’t provide reasonable accommodation to a “regarded
as” disabled individual. 42 U.S.C. § 12201(h). Before the amend-
ments, the statute was silent, and we hadn’t resolved whether
such a duty existed for “regarded as” disabled individuals.
Powers v. USF Holland, Inc., 667 F.3d 815, 823 n.7 (7th Cir.
2011). Ms. Majors and GE dispute whether GE had a duty to
accommodate Ms. Majors if she had a “record of” disability
because the amended statute remains silent as to whether a
duty exists for individuals with a “record of” disability. We
(continued...)
No. 12-2893 13

Judges, 601 F.3d at 681 (“To be entitled to a reasonable
accommodation—and thus to prove that the defendant
failed to provide such a reasonable accommoda-
tion—[the plaintiff] has the burden of establishing that
she is a ‘qualified individual with a disability’ under
the ADA.”).
Ms. Majors further argues that the process to determine
whether a reasonable accommodation existed was not
interactive, that GE flatly rejected her proposed accom-
modation and didn’t suggest a counter-proposal, and
that GE didn’t consider the use of lifting devices as an
accommodation. An interactive process between the
employer and the employee is meant “to determine
the appropriate accommodation for a qualified indi-
vidual with a disability.” Jackson v. City of Chicago, 414
F.3d 806, 813 (7th Cir. 2005) (citing 29 C.F.R. § 1630.2(o)(3)).
This record wouldn’t allow a finding that Ms. Majors
was a qualified individual, so whether the discussion
between GE and Ms. Majors was sufficiently inter-
active is immaterial. Ms. Majors can’t satisfy the second
element of a discrimination claim, and GE is entitled
to summary judgment on that claim.

4
(...continued)
don’t decide whether an employer must provide a reasonable
accommodation to an individual with a “record of” disability
because Ms. Majors can’t establish that a reasonable accom-
modation existed. The analysis need not proceed to whether
the employer was required to accommodate Ms. Majors
with a hypothetical reasonable accommodation.
14 No. 12-2893

Finally, Ms. Majors contends that GE’s reason for not
awarding her the auditor position was pretextual. 5 If a
plaintiff establishes a prima facie case of discrimination
under the ADA, the employer must offer a lawful, nondis-
criminatory reason for its adverse employment action.
Amadio v. Ford Motor Co., 238 F.3d 919, 924 (7th Cir.
2001). Once a defendant meets this burden, the plaintiff
has the burden of showing the proffered reason is
actually a pretext for discrimination. Id. Ms. Majors
points to no evidence that would allow a trier of fact to
determine that she was a qualified individual, so she
hasn’t established a prima facie case of discrimination.
We need not address Ms. Majors’s pretext argument.
DeLuca v. Winer Indus., Inc., 53 F.3d 793, 798 (7th Cir. 1995).

B. Title VII Retaliation
Ms. Majors argues that the district court erred by
granting summary judgment on her retaliation claim.

5
As evidence of pretext, Ms. Majors contends that she re-
peatedly told management that her lifting ability was no
longer restricted, and the company failed to re-evaluate the
permanency of her restriction. Ms. Majors received a 12%
permanent partial impairment rating and corresponding
cash payment in 2001 when her worker’s compensation claim
was closed. If the doctor has given an employee a permanent
work restriction and the employee has been paid worker’s
compensation benefits based on a permanent restriction, the
employee’s lay opinion that the restriction should no longer
apply isn’t sufficient to raise a genuine issue of material fact.
No. 12-2893 15

She maintains that after she filed her May 22, 2009
EEOC charge, GE subjected her to retaliation by denying
her overtime hours and the opportunity to work certain
Fridays known as “lack of work” days.
We first must determine the scope of Ms. Majors’s
retaliation claim.6 GE argues that Ms. Majors’s claim is
limited to GE’s conduct beginning 300 days before her
March 30, 2010 EEOC discrimination charge was filed. A
plaintiff must file a charge of discrimination with an
appropriate agency before she can file a lawsuit invoking
the protections of Title VII. 42 U.S.C. § 2000e-5(e)(1);
Laouini v. CLM Freight Lines, Inc., 586 F.3d 473, 475 (7th
Cir. 2009). An Indiana plaintiff has 300 days from the
date of the conduct at issue to file an EEOC discrimina-
tion charge. Id. (“Indiana is a ‘deferral state,’ meaning
it has a state agency with enforcement powers parallel
to those of the EEOC.”). A charge filed beyond the 300-
day period is untimely and barred. National R.R. Passenger
Corp. v. Morgan, 536 U.S. 101, 109 (2002). A Title VII
complaint generally is limited to the claims asserted
in the underlying EEOC discrimination charge. Weiss v.

6
Ms. Majors’s complaint asserted her retaliation claim under
Title VII and not the ADA. Although the standards and
elements of retaliation claims under Title VII and the ADA
are similar, Talanda v. KFC Nat’l Mgmt. Co., 140 F.3d 1090, 1095
(7th Cir. 1998), and Ms. Majors shifts to an ADA retaliation
claim in her appellate brief, we will analyze Ms. Majors’s
claim under the Title VII retaliation framework that she
pleaded in her complaint and under which the district court
analyzed her claim.
16 No. 12-2893

Coca-Cola Bottling Co. of Chicago, 990 F.2d 333, 337 (7th
Cir. 1993).
Ms. Majors counters that GE’s conduct was a pattern
and practice, so her claim isn’t limited by the statute
of limitation. A pattern and practice claim requires proof
of discrimination against a protected group, Puffer v.
Allstate Ins. Co., 675 F.3d 709, 716 (7th Cir. 2012), but
Ms. Majors offers no evidence or argument to suggest
a protected group was subject to discrimination or re-
taliation. Ms. Majors’s retaliation claim was subject to
the 300-day statute of limitation, and her second EEOC
charge was filed 311 days after her first EEOC charge
was filed. Consequently, the district court concluded
that Ms. Majors’s retaliation claim was limited to GE’s
conduct during the 300-day period before the second
EEOC charge was filed, i.e., from June 3, 2009 forward.
We agree.
A Title VII plaintiff can prove retaliation under either
the direct or indirect method. Nichols v. Southern Illinois
Univ.-Edwardsville, 510 F.3d 772, 784 (7th Cir. 2007). The
direct method requires proof that (1) the employee en-
gaged in statutorily protected activity; (2) she suffered
an adverse employment action; and (3) a causal link
exists between the two. Nichols v. Southern Illinois Univ.-
Edwardsville, 510 F.3d at 784-85. The indirect method
requires proof that (1) the employee engaged in statutorily
protected activity; (2) she was meeting her employer’s
legitimate expectations; (3) she suffered an adverse em-
ployment action; and (4) she was treated less favorably
than similarly situated employees who did not engage
No. 12-2893 17

in statutorily protected activity. Id. at 785. Ms. Majors
claims she can prove GE retaliated against her under
both methods.
The parties don’t dispute that Ms. Majors engaged in
a protected activity when she filed a charge of discrim-
ination with the EEOC. Ms. Majors claims her job per-
formance was rated as satisfactory, and that she was
subject to an adverse employment action when GE
denied her overtime hours and the opportunity to
work “lack of work” Fridays. The parties dispute whether
Ms. Majors has established a causal link between the
protected activity and the adverse employment action
or offered evidence of similarly situated employees.
Ms. Majors first points to the closeness in time
between the date she filed the EEOC charge and the
alleged retaliation. She argues that she received less
overtime hours and “lack of work” Friday assignments
than other quality control inspectors in the plant from
June to October 2009, a time period that began less than
two weeks after she filed the EEOC charge and ended
when she retired. Closeness in time between the
protected activity and the adverse employment action is
evidence of the causal link between the two events, Lang
v. Illinois Dep’t of Children & Family Servs., 361 F.3d 416,
419 (7th Cir. 2004), but to survive summary judgment, the
plaintiff must offer more evidence that supports the
inference of a causal link between the two events than
simply close temporal proximity. Tomanovich v. City
of Indianapolis, 457 F.3d 656, 665 (7th Cir. 2006).
18 No. 12-2893

Ms. Majors emphasizes the difference between the
actual overtime hours and “lack of work” Fridays she
worked compared to other inspectors and her replace-
ment. From June through October 2009, Ms. Majors
worked 14.6 overtime hours. For comparison, Ms.
Majors cites the overtime hours, from the same time
period, of three people holding inspector positions:
Ricky May, 147.6; Rodney Ira, 139.6; and Barry
Taylor, 11.9. Her replacement, Cheryl Abram, worked 75.1
overtime hours from June to October 2010. Quality
control inspectors worked the following number of
Fridays from June to October 2009: Ms. Majors, three;
Mr. May, five; Mr. Ira, seven; and Mr. Taylor, five. During
the same time period in 2010, Ms. Majors’s replacement,
Ms. Abram, worked fourteen Fridays.
Comparison of the overtime hours and “lack of work”
Fridays Ms. Majors worked in 2009 to those her replace-
ment worked the following year establishes only that
Ms. Majors was assigned fewer hours than her replace-
ment. Many other factors, including the lapse in time,
might have caused the disparity between the numbers.
A more valuable comparison can be made between
Ms. Majors’s overtime hours and those worked by other
quality control inspectors in the plant during the same
period of time. A startling difference emerges among
the overtime hours assigned quality control inspectors
Mr. May (147.6) and Mr. Ira (139.6) and those assigned
to Ms. Majors (14.6) and Mr. Taylor (11.9). Ms. Majors
had significantly fewer overtime hours than Mr. May
and Mr. Ira, but her hours were slightly higher than
Mr. Taylor’s hours (14.6 compared to 11.9). Ms. Majors
No. 12-2893 19

worked the fewest “lack of work” Fridays among the
quality control inspectors (three compared to five and
seven), but that discrepancy is marginal. A calendar
shows there were twenty-two Fridays from June to
October 2009, but the summary judgment record
doesn’t reveal the number of “lack of work” Fridays
during that period. One quality control inspector
worked more than twice the number of Fridays
Ms. Majors worked—seven compared to three—and two
quality control inspectors worked two additional days.
When examined in context, the assignment to
Ms. Majors of less overtime hours than two of her co-
workers and fewer “lack of work” Fridays than three of
her coworkers during the months after she filed an
EEOC charge doesn’t amount to sufficient evidence to
support an inference of causation. Ultimately, Ms. Majors
argues that the adverse employment action itself is evi-
dence of a causal link between Ms. Majors’s protected
activity and the adverse employment action, receiving
less overtime hours and “lack of work” Fridays. “There
is no bright-line rule as to the amount of evidence neces-
sary to survive summary judgment under the direct
method,” Tomanovich v. City of Indianapolis, 457 F.3d at
665, but Ms. Majors didn’t identify evidence sufficient
to create an issue of fact as to whether the protected
activity was the cause of the alleged adverse employ-
ment action.
Employees typically are similarly situated if they had
the same supervisor, were subject to the same employ-
ment standards, and engaged in similar conduct. South
20 No. 12-2893

v. Illinois Env’t Prot. Agency, 495 F.3d 747, 752 (7th Cir.
2007). But the similarly situated analysis is flexible, and
the result depends on any relevant factors and common
sense. Id. “[S]ufficient commonalities on the key variables
between the plaintiff and the would-be comparator [are
required] to allow the type of comparison that, taken
together with the other prima facie evidence, would
allow a jury to reach an inference of discrimination or
retaliation.” Id. (quoting Humphries v. CBOCS West, Inc., 474
F.3d 387, 405 (7th Cir. 2007)).
Ms. Majors held a quality control inspector position
in 2009, and she argues that all quality control in-
spectors in the Bloomington plant were similarly
situated employees, especially her replacement, Cheryl
Abram. Ms. Majors offers no evidence that all the in-
spectors were similarly situated employees, or why
her replacement in particular was similarly situated. GE
contends that Ms. Majors was the only inspector who
reported to her supervisors, Gary Hamilton and Amine
Karoud, and the only inspector in her cost center and
area of the plant. According to GE, two quality control
inspectors Ms. Majors uses as comparators (Ricky May
and Rodney Ira) had different job classifications than
Ms. Majors, Barry Taylor, and Cheryl Abram; neither
party presented any evidence about the difference
between the job classifications. Ms. Majors didn’t sug-
gest the other quality control inspectors had the same
supervisor or offer any other common attribute among
the quality control inspectors. Ms. Majors has pointed
to no evidence, apart from the job title, to support her
contention that the employees were similarly situated
No. 12-2893 21

to her or that would allow a reasonable trier of fact
to conclude that GE treated other inspectors differently
than Ms. Majors. Accordingly, we agree with the district
court that Ms. Majors’s retaliation claim can’t survive
summary judgment under the indirect method of proof.
We agree with the district court that Ms. Majors has
offered no evidence that would allow her retaliation
claim to survive summary judgment under either the
direct or indirect method of proof.7
Ms. Majors also asserts that the difference between the
hours worked by Ms. Majors, her replacement, and
other inspectors at the plant is evidence of pretext.
Ms. Majors argues that evidence of pretext, when com-
bined with temporal proximity, is sufficient additional
evidence of causation to survive summary judgment
under the direct method, and cites Third and Tenth Cir-
cuit case law to support her argument. Farrell v. Planters
Lifesavers Co., 206 F.3d 271, 286 (3d Cir. 2000); Wells v.
Colorado Dep’t of Transp., 325 F.3d 1205, 1218 (10th Cir.
2003). But Ms. Majors didn’t offer sufficient evidence to
show that GE’s proffered reasons for the overtime and
“lack of work” Friday assignments were pretextual. A

7
Because Ms. Majors didn’t establish a prima facie case of
retaliation under either the direct or indirect method, we need
not reach GE’s argument (that the district court didn’t ad-
dress) that Ms. Majors’s retaliation claim lacked merit
because she didn’t offer any evidence that her supervisors,
who were responsible for the retaliatory conduct, were
aware that she had filed an EEOC charge of discrimination.
22 No. 12-2893

defendant has the burden to offer a non-discriminatory
reason for the adverse employment action, typically
after the plaintiff establishes a prima facie case of retalia-
tion. Nichols v. Southern Illinois Univ.-Edwardsville, 510
F.3d at 785. The burden then shifts back to the plain-
tiff, who must establish the proffered reason was
pretextual. Id.
With respect to the discrepancy found in the time
records, GE claims that the CBA directs the procedure
used to distribute overtime hours among hourly employ-
ees. GE groups employees who perform similar work
into a cost center. According to GE, the cost center’s
supervisor has the discretion to determine whether over-
time is required and the employees who will perform
the work. GE claims that Ms. Majors’s supervisors
decided that overtime and “lack of work” Fridays were
unnecessary, and they were trying to control costs. GE
says the CBA requires that the distribution of overtime
hours be equalized among the employees within a job
classification on the same shift in the cost center. Ac-
cording to GE, hourly employees don’t work on a “lack
of work” day unless the employee is brought in for a
specific purpose such as preventative maintenance, and
the Bloomington plant experienced many “lack of work”
days in 2009. GE claims the reason for the inconsistency
in the overtime assignments was that Mr. May and
Mr. Ira, although quality control inspectors, had a dif-
ferent job classification (9018), while Ms. Majors and
Mr. Taylor were both within the job classification 9014.
GE’s explanation constitutes a non-discriminatory
No. 12-2893 23

reason for the overtime hour and “lack of work” Friday
assignments reflected in the time records.
An employer’s proffered non-discriminatory reason
for the adverse employment action is pretextual if it was
a lie. Gates v. Caterpillar, Inc., 513 F.3d 680, 691 (7th Cir.
2008). As evidence of pretext, Ms. Majors claims GE
didn’t adhere to the CBA overtime distribution
procedure and points to GE’s time records to support
her claim. Ms. Majors emphasizes that she testified at
her deposition that the procedure provided by the CBA
was “not the way it’s ever been.” She argues GE didn’t
offer any evidence about the CBA overtime dis-
tribution procedure or the difference between the job
classifications. The most reasonable inference from
these circumstances, she claims, is that GE denied her
overtime hours and the opportunity to work “lack of
work” Fridays because she filed an EEOC charge
of discrimination.
GE’s time records alone don’t prove that GE didn’t
abide by the CBA as Ms. Majors claims. GE’s explanation
that the distribution of overtime hours is equalized
under the CBA among employees within a job classifica-
tion, and the quality control inspectors with the most
overtime hours had a different job classification than
Ms. Majors isn’t patently false. Ms. Majors claims it
isn’t true, but offers nothing more. While GE didn’t
offer further details about why certain inspectors had
different job classifications, it is Ms. Majors, the non-
moving party, who must set forth sufficient evidence
to survive summary judgment, and she has only offered
24 No. 12-2893

conclusory statements that the summary judgment
record doesn’t support. See Albiero v. City of Kankakee,
246 F.3d 927, 933 (7th Cir. 2001). Ms. Majors hasn’t
offered sufficient evidence that GE fabricated its
proffered non-discriminatory reason for the overtime
and “lack of work” Friday distribution to establish pretext.

C. Constructive Discharge
Finally, Ms. Majors contends summary judgment was
inappropriate for her claim that she was constructively
discharged when she retired early due to extreme
stress. On August 24, 2009, Ms. Majors chose to par-
ticipate in a special early retirement program and retire
in November of that year. The special early retirement
option was a part of the national CBA and was offered
to GE employees who were 55 years old or older and
had worked for GE for twenty-five years or more.
Eligible employees had to apply for the program by
August 31. Ms. Majors contends she was under extreme
stress and her working conditions were intolerable
because she was denied the temporary auditor position,
had been denied the opportunity to work overtime and
“lack of work” Fridays, and was required to decide
whether she would opt into the early retirement pro-
gram within days of returning from her mother’s funeral.
Ms. Majors doesn’t contend, however, that GE’s
conduct violated any federal law, and she doesn’t cite
any rule of law that says an employer can’t require an
employee to make a decision about an early retirement
program because the employee is under extreme stress.
No. 12-2893 25

We note that GE’s decision not to award Ms. Majors the
temporary purchased material auditor position was not
the result of discrimination and GE’s decision not to
assign additional hours to Ms. Majors was not retalia-
tion. Ms. Majors wasn’t constructively discharged when
she decided to retire early, and summary judgment
was appropriate.

IV. C ONCLUSION
For the forgoing reasons, we affirm the district court’s
entry of summary judgment in favor of GE on all claims.

4-16-13