## In the 

# United States Court of Appeals

For the Seventh Circuit

____________

Nos. 01-2467 and 01-2531

M ARK A. M ACK
, Plaintiff-Appellee

, Cross-Appellant

,
v.

G REAT D ANE T RAILERS
, 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 A PRIL 8, 2002—D ECIDED O CTOBER 22, 2002

____________

Before B AUER
, E ASTERBROOK , and W ILLIAMS
, Circuit Judges.

W ILLIAMS
, Circuit Judge . After he was dischargedfrom 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 ofGreat Dane on Mack’s state law claim, but denied summary judgment on Mack’s ADA claim that Great Danediscriminated 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 wasdischarged 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, whichinvolved 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 determinedthat 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 heavysteel-toed work boots and prohibited kneeling and squatting. These restrictions were repeated in Dr. Schooler’sreports during the following months and in her handwritten report of November 2 (received by Great Dane on November 12). In a typewritte n report accompanying the November 2 report, Schooler stated that Mack “may have plateaued” in his recovery, but “could potentially returnto 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 toNos. 01-2467, 01-2531 3

work with permanent restricti ons 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 viol ations of the ADA and statelaw 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 motionas 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 to4 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 thatsubstantially 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 aperson has a physical impairment that substantially limits one or more major life activities, or (2) a covered entity mistakenly believes that anactual, 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 physicalNos. 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 claimthat 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 Courtconcluded 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 shoulderlevels 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 Toyotais distinguishable in two respects: first, because the major life activity at issue there was performi ng manual tasks—not lifting—and second, because Toyotainvolved 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 Toyotato major life activity of6 Nos. 01-2467, 01-2531

seeing). Toyota ’ spoint 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 suggestan 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-relatedactivities 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.3d1311, 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 sucha restriction, without more, is insufficient to show a substantial limitation on a major life activity.

Furthermore, while Toyotadid 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. TheNos. 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 th at described in the definition of actual impairment. See42 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 ’ sanalysis 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 squatto 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 GreatDane’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. Forexample, 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” andif 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 andsquatting, 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 Great8 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 hisjob 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 conclu de 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 wo rk-related restrictions—was
allowed to return to work af ter 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 ther e 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 reasonfor 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 justof 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 toan 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 isequally 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, lik e his comparative evidence, is too weak to support an inference that Great Daneregarded 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) (employeemay 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 itNos. 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 districtcourt 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. , 297N.E.2d 425, 428 (Ind. 1973). To survive summary judgment on a Framptonclaim, the plaintiff must presentevidence 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 andproximity in time” between the employee’s filing for benefits and the discharge, see id. , or from evidence that the employer’s proffered reason fo r 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 relie s for his argument that therelevant 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 th e employee was fired the day after receiving an impairment rati ng, 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 benefi ts for more than a year, timing that tends to negate, rather than support, an
inference of causation. Goetzke, 280 F.3d at 775 (holdingthat one-year lapse between filing for benefits and discharge does not support an in ference 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 employerdiscovered the fact that Mack was going to end his worker’s compensation claim”—that is, when Great Dane
received Dr. Schooler’s re port suggesting that Mack’sinjury 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. 4Nos. 01-2467, 01-2531 13

4 (...continued) also proffered evidence that the medical restrictions were intended to be temporary, whic h 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 evidencedescribing 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 inany 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 A FFIRMED

. The judgment entered on the jury verdict on Mack’s ADA
claim is R EVERSED and the case is R EMANDED

.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