In the

United States Court of Appeals

For the Seventh Circuit ____________

Nos. 01-2467 and 01-2531

MARK A. MACK,

Plaintiff-Appellee,

Cross-Appellant,

v.

GREAT DANE TRAILERS,

Defendant-Appellant,

Cross-Appellee.

____________

Appeals from the United States District Court

for the Southern District of Indiana, Terre Haute Division.

No. TH 98-C-303—Larry J. McKinney, Chief Judge.

____________

ARGUED APRIL 8, 2002—DECIDED OCTOBER 22, 2002

____________

Before BAUER, EASTERBROOK, and WILLIAMS, Circuit

Judges.

WILLIAMS, Circuit Judge. After he was discharged

from his job, plaintiff Mark Mack sued his employer, defendant Great Dane Trailers, for violation of the Americans with Disabilities Act, 42 U.S.C. § 12102, et seq.

(ADA), and for retaliatory discharge under Indiana law.

The district court granted summary judgment in favor of

Great Dane on Mack’s state law claim, but denied summary judgment on Mack’s ADA claim that Great Dane

discriminated against him because it mistakenly regarded him as disabled. The jury found in Mack’s favor

on the ADA claim, and both parties appeal. We agree

with Great Dane that, on the ADA claim, there was insuf-
2 Nos. 01-2467, 01-2531

ficient evidence from which a jury could reasonably find

that Great Dane regarded Mack as substantially limited

in any major life activity and that the district court erred

in denying Great Dane’s motion for judgment as a matter

of law. We also conclude that there was insufficient evidence that would support an inference that Mack was

discharged for filing for workers’ compensation and therefore affirm the district court’s grant of summary judgment in favor of Great Dane on Mack’s state law claim

for retaliatory discharge.

I. BACKGROUND

Mack worked as an assistant trailer builder, which

involved many tasks that required long periods of kneeling and squatting. After less than a month on the job,

Mack developed pain in his leg and Great Dane sent him

to see Dr. Daria Schooler. Dr. Schooler diagnosed acute

right peroneal neuropathy, commonly referred to as drop

foot. A month after his injury, Dr. Schooler determined

that Mack could return to sedentary work if transportation to work was provided. As his condition improved,

she eased the restrictions but cleared him for work only

in areas of the plant that do not require the use of heavy

steel-toed work boots and prohibited kneeling and squatting. These restrictions were repeated in Dr. Schooler’s

reports during the following months and in her handwritten report of November 2 (received by Great Dane on

November 12). In a typewritten report accompanying the

November 2 report, Schooler stated that Mack “may have

plateaued” in his recovery, but “could potentially return

to work if he had a permanent work restriction of no lifting and if a custom work boot could be manufactured. . . .”

In her final report on November 30, Dr. Schooler determined that Mack had reached maximum medical improvement from his injury, and released him for a return to
Nos. 01-2467, 01-2531 3

work with permanent restrictions of no kneeling or squatting and if he obtained the suggested custom work boot.

During this time, Mack was on workers’ compensation

leave and received total temporary disability benefits.

Mack repeatedly asked Great Dane to return him to

work and was told that there was no available work within his restrictions. Great Dane discharged Mack effective

November 12, 1997, thirteen months after his disability

leave began. His temporary disability benefits continued

for another month. At a meeting on November 30, Great

Dane managers told Mack that he had been discharged

pursuant to a company policy under which an employee

who is absent more than one year is terminated.

Mack filed suit alleging violations of the ADA and state

law claims for wrongful termination and intentional infliction of emotional distress. On cross motions for summary judgment, the district court granted judgment in

favor of Great Dane on Mack’s state law claims and his

claim that he was disabled under the ADA. It denied,

however, Great Dane’s motion as to Mack’s “regarded as

disabled” claim. That claim went to trial and the jury

rendered a verdict in favor of Mack. The court denied

Great Dane’s Rule 50(b) motion for judgment as a matter

of law and entered judgment on the verdict.

II. ANALYSIS

A. Americans with Disabilities Act

We review the district court’s denial of Great Dane’s

motion for judgment as a matter of law de novo. Emmel

v. Coca Cola Bottling Co. of Chicago, 95 F.3d 627, 629-30

(7th Cir. 1996). We must determine “whether the evidence presented, combined with all reasonable inferences

permissibly drawn therefrom, is sufficient to support

the verdict when viewed in the light most favorable to
4 Nos. 01-2467, 01-2531

1 According to EEOC regulations, lifting is a major life activity.

29 C.F.R. pt. 1630.2(i); see also Gillen v. Fallon Ambulance Serv.,

Inc., 283 F.3d 11, 21 (1st Cir. 2002). Great Dane does not argue

otherwise, so we proceed under the assumption that it is. But

see Mays v. Principi, 301 F.3d 866, 869 (7th Cir. 2002) (expressing

doubt that lifting more than 10 pounds is a major life activity).

the party against whom the motion is directed.” Tapia v.

City of Greenwood, 965 F.2d 336, 338 (7th Cir. 1992).

An individual is disabled within the meaning of the

ADA if she has “a physical or mental impairment that

substantially limits one or more of the major life activities of such individual.” 42 U.S.C. § 12102(2)(A); see also

Sutton v. United Airlines, Inc., 527 U.S. 471, 478 (1999).

Mack does not contend on appeal that his impairment

is substantially limiting. But the ADA also protects from

discrimination individuals who are “regarded as” having

a disability, see 42 U.S.C. § 12102(2)(C); Sutton, 527 U.S. at

489, and it was on this theory that Mack’s ADA claim

was submitted to the jury. To fall within the statutory

definition of one “regarded as disabled,” the plaintiff

must show that:

(1) a covered entity mistakenly believes that a

person has a physical impairment that substantially limits one or more major life activities, or

(2) a covered entity mistakenly believes that an

actual, nonlimiting impairment substantially limits one or more major life activities.

Sutton, 527 U.S. at 489. Under either formulation described in Sutton, the plaintiff must show that the defendant believes she is “substantially limited” in a “major

life activity.” Id.; 42 U.S.C. § 12102(2)(A) & (C).

Mack’s claim is that Great Dane believed that he was

substantially limited in the major life activity of “lifting.”1

All agree that Great Dane believed that Mack’s physical
Nos. 01-2467, 01-2531 5

condition limited his ability to lift items at work. An impairment that interferes with work-related tasks, however, does not necessarily rise to the level of a disability

within the meaning of the ADA. Toyota Motor Mfg., Ky.,

Inc. v. Williams, 534 U.S. 184, 122 S. Ct. 681 (2002). In

Toyota, the Supreme Court rejected the employee’s claim

that her carpal tunnel syndrome, which made it impossible to perform certain manual tasks on the job, was a

substantial limitation on a major life activity. The Court

concluded that the inability to perform many tasks associated with a particular job (in that case, “repetitive

work with hands and arms extended at or above shoulder

levels for extended periods of time”) would have only limited relevance to the inquiry of whether the impairment

was substantially limiting because those tasks might not

be an important part of most people’s daily lives:

When addressing the major life activity of performing manual tasks, the central inquiry must be

whether the claimant is unable to perform the

variety of tasks central to most people’s daily lives,

not whether the claimant is unable to perform

the tasks associated with her specific job.

Id., 122 S. Ct. at 693. The Court held that evidence that

plaintiff was unable to do specific job-related duties was

insufficient proof of a disability. Id.

Mack contends, however, that Toyota is distinguishable in two respects: first, because the major life activity

at issue there was performing manual tasks—not lifting—and second, because Toyota involved a claim of actual disability. We see no basis for confining Toyota’s

analysis to only those cases involving the specific life

activity asserted by the plaintiff in that case. See EEOC

v. United Parcel Serv., Inc., ___ F.3d ___, Nos. 01-15410,

01-15976, 01-15977, 2002 WL 31096703, at *7 (9th Cir.

Sept. 20, 2002) (applying Toyota to major life activity of
6 Nos. 01-2467, 01-2531

seeing). Toyota’s point was that an inability to perform

“occupation-specific” tasks does not necessarily show an

inability to perform the central functions of daily life,

122 S. Ct. at 693, and that analysis applies equally to the

work-related restriction at issue here. An inability to lift

heavy objects may disqualify a person from particular

jobs but does not necessarily interfere with the central

functions of daily life. See Mays, 301 F.3d at 869. There

may well be cases in which, because of the nature of the

impairment, one could, from the work-restriction alone,

infer a broader limitation on a major life activity. An

inability to lift even a pencil on the job might suggest

an inability to lift a toothbrush, for example, or to otherwise care for oneself—or at least might support an inference that the employer believed the employee was so

limited. But the work restriction in this case was not

nearly of that nature, and instead fits neatly into the sort

of occupation-specific limitation at issue in Toyota. See

Helfter v. United Parcel Serv., Inc., 115 F.3d 613, 617 (8th

Cir. 1997) (evidence that impairment limits work-related

activities such as lifting does not demonstrate triable dispute regarding substantial limitation on major life activity); Aucutt v. Six Flags Over Mid-America, Inc., 85 F.3d

1311, 1319 (8th Cir. 1996) (twenty-five pound lifting restriction, without more, does not constitute a significant

restriction on ability to perform major life activities); Williams v. Channel Master Satellite Sys., Inc., 101 F.3d 346,

349 (4th Cir. 1996) (same). Under Toyota, evidence of such

a restriction, without more, is insufficient to show a substantial limitation on a major life activity.

Furthermore, while Toyota did not address a claim that

the employee was regarded as disabled, its analysis still

controls in this case. Under the ADA, the concepts of

“substantially limits” and “major life activity” are the

same whether the employee is proceeding under a claim

that she is actually disabled or regarded as disabled. The
Nos. 01-2467, 01-2531 7

statute defines disability to include “being regarded as

having such an impairment,” 42 U.S.C. § 12102(2)(C)—the

referenced impairment being that described in the definition of actual impairment. See 42 U.S.C. § 12102(2)(A). So

if the condition that is the subject of the employer’s belief

is not substantially limiting, and the employer does not

believe that it is, then there is no violation of the ADA

under the “regarded as” prong of the statute. See Sutton,

527 U.S. at 489; see also EEOC v. United Parcel Serv., Inc.,

2002 WL 31096703, at *7 (applying Toyota’s analysis to

“regarded as” claim); Gordon v. E.L. Hamm & Assocs., Inc.,

100 F.3d 907, 913 (11th Cir. 1996) (“As with real impairments, . . . a perceived impairment must be substantially limiting and significant.”).

Applying these principles, we conclude that Mack’s

ADA claim fails as a matter of law. The parties dispute

whether the evidence showed that Great Dane regarded

Mack as unable to squat to lift from the floor (Great

Dane’s version), or as unable to lift (Mack’s version). But

one thing is clear—all the direct evidence about Great

Dane’s knowledge of Mack’s physical impairment concerned lifting restrictions related to his job and there is

no evidence from which a jury reasonably could infer

anything about Great Dane’s belief about the extent of

Mack’s limitations as to tasks central to his daily life. For

example, Mack relies on one of the neurosurgeon’s reports received by Great Dane, which stated that Mack

could return to work with a restriction of “no lifting” and

if he wore a custom work boot. But even if the jury ignored the numerous other reports from the same doctor

that identified the restriction as one on kneeling and

squatting, the report itself demonstrates that the described restriction was in reference to the limitations at

work and nothing more.

Aside from the reference to lifting in the doctor’s report, Mack relies on the deposition testimony of Great
8 Nos. 01-2467, 01-2531

Dane’s human resources manager that Mack’s limitation

was an “inability to lift and squat.” This phrase was in

response to a question about Mack’s ability to keep his

job and in the context of a discussion about his workrelated restrictions. Even if the jury disbelieved the manager’s explanation at trial that his response was limited

to safely lifting objects from the floor (by squatting),

no jury reasonably could conclude from this single reference to a discussion about work-related restrictions that

Great Dane believed that Mack was substantially limited

in the sort of lifting that is central to most people’s daily

life.

Finally, Mack asserts that there was circumstantial

evidence from which the jury could have inferred that

Great Dane regarded him as disabled. For example, Mack

points out that another employee—one with a similar

injury but with greater work-related restrictions—was

allowed to return to work after an even lengthier leave

of absence and that Great Dane modified the other employee’s duties to accommodate his impairment. Mack

also claims that the jury could have disbelieved Great

Dane’s reason for firing him based, for example, on the

fact that his leave extended beyond a year and testimony

that the human resources manager had some leeway

to retain Mack longer if the restrictions were lifted.

Ordinarily the relevance of an employer’s different treatment of two similarly situated employees, whose only

relevant difference is on some characteristic that is an

impermissible basis for disparate treatment, is that it

supports an inference that the disparate treatment is

because of that difference. See Troupe v. May Dept. Stores

Co., 20 F.3d 734, 736 (7th Cir. 1994). Similarly, a jury may,

depending on the strength of the other evidence in the

case, infer from evidence of pretext (i.e., that the employer’s stated reason is false) that the adverse job action was

taken because of intentional discrimination. See id. at 736-
Nos. 01-2467, 01-2531 9

2 Mack argues that he could have performed the work of an

assistant trailer builder, but there is no question that Great

Dane would have had to make some accommodation—such as

allowing him to work with a special work boot and excusing him

from tasks requiring him to lift heavy objects. Accommodation

is not required if the employee is not covered by the statute,

Szmaj v. American Tel. & Tel. Co., 291 F.3d 955, 956 (7th Cir.

2002), so Great Dane’s failure to accommodate his restrictions

does not suggest that its reason for firing him was false or that

(continued...)

37; cf. Dvorak v. Mostardi Platt Assocs., Inc., 289 F.3d 479,

487 (7th Cir. 2002).

In this context, however, Mack is using the comparative and pretext evidence to support an inference not just

of causation—that his membership in the group protected by the statute was the reason he was treated differently—but also the antecedent inference that he was a

member of that protected group, in other words, that

Great Dane regarded him as disabled within the meaning

of the ADA. This inference is illogical on the particular

comparison offered by Mack. Mack compares himself to

an employee with a similar injury but greater restrictions who was assigned light duty work after he sought

accommodations. The fact that Great Dane accommodated the other employee but not Mack does not support

the inference that it regarded Mack as disabled. It is

equally likely, if not more likely, that Great Dane regarded the other employee as disabled and therefore

accommodated him but not Mack.

Mack’s pretext evidence, like his comparative evidence,

is too weak to support an inference that Great Dane

regarded him as disabled. Great Dane’s failure to provide Mack with alternative job assignments is consistent

with its assertion that it did not have work within his

restrictions,2

 and Mack offered no evidence to the contrary.
10 Nos. 01-2467, 01-2531

2 (...continued)

it regarded him as disabled. (Whether there is any duty to accommodate an employee who is not actually disabled but is

regarded as disabled is a question we need not decide today.

Compare Weber v. Strippit, Inc., 186 F.3d 907, 917 (8th Cir. 1999)

(holding that there is no requirement to accommodate), with

Davidson v. Midelfort Clinic, Ltd., 133 F.3d 499, 509 (7th Cir.

1998) (suggesting such a requirement for employees with a record of a disability); see also Deane v. Pocono Medical Center, 142

F.3d 138, 148 n.12 (3d Cir. 1999) (en banc) (discussing but not

deciding the issue).)

The fact that Great Dane allowed the leave to continue

beyond a year (until his restrictions were identified as

permanent) and that it could have retained Mack longer

if his restrictions had been temporary does not support

an inference that its stated reason for firing him was

false. Accordingly, we conclude that the jury could not

reasonably find from Mack’s circumstantial evidence that

Great Dane regarded him as disabled.

We do not suggest that circumstantial evidence can

never be used to show that an employer regarded an

employee as disabled; the employer’s perception of the

employee’s impairment is, like its intent to discriminate, a

mental state and direct evidence may often be lacking.

See Troupe, 20 F.3d at 736; see also Pugh v. City Of

Attica, Indiana, 259 F.3d 619, 625 (7th Cir. 2001) (employee

may present direct or indirect evidence of discrimination under the ADA); see generally Wright v. Ill. Dept. of

Corrections, 204 F.3d 727, 730-32 (7th Cir. 2000). But

given Toyota, Mack needed some evidence, direct or circumstantial, from which a jury could conclude that Great

Dane regarded him as substantially limited in activities

central to most people’s daily lives. The evidence does

not support an inference that Great Dane believed

that Mack’s impairment was anything more than what it
Nos. 01-2467, 01-2531 11

3 Given our holding, we need not reach Great Dane’s argument

that the attorney’s fee awarded on this claim was excessive or

Mack’s argument that the district court erred in granting Great

Dane’s motion for judgment as a matter of law on the issue of

punitive damages.

was—a limitation on his ability to do certain tasks on

the job. Because the verdict was unsupported by the

evidence, the judgment must be reversed.3

B. Wrongful Termination

Under Indiana law, “[g]enerally, employers may terminate employees for no cause whatsoever or for any cause

at all without incurring liability.” Hamann v. Gates Chevrolet, Inc., 910 F.2d 1417, 1418 (7th Cir. 1990). One exception to this general rule is that an employee who

has been discharged in retaliation for filing a claim for

workers’ compensation may recover damages for wrongful termination. Frampton v. Central Ind. Gas Co., 297

N.E.2d 425, 428 (Ind. 1973). To survive summary judgment on a Frampton claim, the plaintiff must present

evidence that would support a finding that the discharge was caused by his filing for benefits. Goetzke v.

Ferro Corp., 280 F.3d 766, 774 (7th Cir. 2002). Causation

may not be inferred merely from evidence that (1) the

employee filed for benefits and (2) was fired. See Hamann,

910 F.2d at 1420. Depending on the circumstances, however, causation may be inferred from the “rapidity and

proximity in time” between the employee’s filing for benefits and the discharge, see id., or from evidence that the

employer’s proffered reason for the discharge is “patently

inconsistent with the evidence before the court.” Markley

Enters., Inc. v. Grover, 716 N.E.2d 559, 565 (Ind. Ct. App.

1999); see Goetzke, 280 F.3d at 774; Hamann, 910 F.2d

at 1421. Mack asserts that the record at summary judg-
12 Nos. 01-2467, 01-2531

4 The case upon which Mack relies for his argument that the

relevant date is when the employer was notified that the employee’s injury is permanent, Dale v. J.G. Bowers, Inc., 709 N.E.2d

366 (Ind. Ct. App. 1999), is easily distinguishable. In that case,

although the court noted that the employee was fired the day after receiving an impairment rating, this occurred four months

after his claim for benefits, much shorter than the one-year lapse

in this case. Id. at 367, 370. Furthermore, the employee in Dale

(continued...)

ment contained both types of circumstantial evidence. We

review the district court’s grant of Great Dane’s motion

for summary judgment de novo. See Goetzke, 280 F.3d

at 774.

By the time he was discharged, Mack had been receiving temporary disability benefits for more than a year,

timing that tends to negate, rather than support, an

inference of causation. Goetzke, 280 F.3d at 775 (holding

that one-year lapse between filing for benefits and discharge does not support an inference of retaliatory intent);

cf. Johnson v. Univ. of Wisconsin-Eau Claire, 70 F.3d 469,

480 (7th Cir. 1995) (“[T]he substantial time lapse between

the events is counter-evidence of any causal connection.”).

Mack attempts to shorten the relevant time lapse by

asserting that he “was fired on the very day his employer

discovered the fact that Mack was going to end his worker’s compensation claim”—that is, when Great Dane

received Dr. Schooler’s report suggesting that Mack’s

injury would not likely improve and that his work limitations would be permanent (a condition that signals the

end of total temporary disability benefits, see Kohlman

v. Indiana University, 670 N.E.2d 42, 43 (Ind. Ct. App.

1996)). But Mack has not explained how Great Dane’s

knowledge that his temporary disability payments

would soon end supports an inference that it fired him

for applying for benefits a year earlier.4
Nos. 01-2467, 01-2531 13

4 (...continued)

also proffered evidence that the medical restrictions were

intended to be temporary, which called into question the employer’s explanation that he was fired because the restrictions

rendered him unable to do the job. The case therefore turned

not on suspicious timing alone, but on suspicious timing combined with strong evidence of pretext.

Indiana courts have held, however, that more remote

timing may, when coupled with other sufficient evidence,

support an inference of retaliation. See Goetz, 280 F.3d

at 775 (citing Pepkowski v. Life of Ind. Ins. Co., 535 N.E.2d

1164, 1167-68 (Ind. 1989) (six-month lapse)). To bolster

his timing evidence, Mack points to evidence he claims

casts doubt on Great Dane’s stated reason for his discharge.

At summary judgment, Great Dane submitted evidence

describing its policy of terminating employees after a oneyear leave and evidence that other employees were terminated according to that policy. Mack contends that the

policy was not rigidly applied, pointing out that his leave

actually lasted more than 13 months. But he offered no

evidence at summary judgment that this practice was in

any way unusual or inconsistent with Great Dane’s policy, or that otherwise would give a jury a reasonable

basis to conclude that the policy was not the real reason

for his termination. Because there was insufficient evidence to support an inference that retaliation was the

reason for Mack’s discharge, summary judgment on this

claim was proper.

III. CONCLUSION

The district court’s grant of summary judgment in favor

of Great Dane on Mack’s retaliation claim is AFFIRMED.

The judgment entered on the jury verdict on Mack’s ADA

claim is REVERSED and the case is REMANDED.
14 Nos. 01-2467, 01-2531

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—10-22-02