### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 19

‐ 3356

F RANK P IERRI

, Plaintiff

‐ Appellant

,

v.

M EDLINE I NDUSTRIES

, I NC

., Defendant

‐ Appellee

.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 17 C 9037

— Robert W. Gettleman

, Judge

.

____________________

A RGUED M AY 18, 2020

— D ECIDED A UGUST 6, 2020

____________________

Before W OOD

, B ARRETT

, and S CUDDER

, Circuit Judges

.

W OOD

, Circuit Judge

. Frank Pierri was a chemist for Med

‐

line Industries. Initially, he did well at the company, but prob

‐

lems arose after he asked for accommodations to enable him

to take care of his ailing grandfather. Medline was receptive,

and it ultimately gave him limited time off for this purpose

under the Family and Medical Leave Act (FMLA). Pierri as

‐

serts that his supervisor then became so hostile to him that he

needed personal time off because of the stress. He left on2 No. 19

‐ 3356

FMLA leave and never returned. Medline eventually termi

‐

nated his employment, causing Pierri to sue the company.

The district court granted summary judgment for Medline,

and we affirm.

I

Because we are reviewing a ruling on summary judgment,

we take the facts in the light most favorable to Pierri, without

vouching further for them. Our account should be under

‐

stood in this light. See Knopick v. Jayco, Inc.

, 895 F.3d 525, 527

(7th Cir. 2018).

Pierri began working for Medline in 2011. During the first

four years of his tenure at the company, Pierri earned several

promotions and received consistently positive performance

evaluations. Everything went well until 2015, when Pierri’s

grandfather fell ill with liver cancer. Pierri asked Rich Tyler,

his supervisor, if he could work ten

‐ hour shifts four days a

week instead of the eight

‐ hour shifts five days a week that he

had been covering. Pierri explained that he needed the altered

schedule in order to care for his ailing grandfather. Tyler

agreed and made the change. Six months later, however, Ty

‐

ler told Pierri that his work performance had suffered and

that he would have to return to the normal five

‐ day, eight

‐

hour shifts. Pierri protested that he needed at least one week

‐ day off to take his grandfather on his weekly trips to the hos

‐ pital. Tyler offered to let Pierri work Tuesday through Satur

‐ day, but Pierri declined this accommodation because he

wanted to attend school on Saturdays. Pierri then discussed

his options with Medline’s Human Resources (HR) Depart

‐

ment and learned that he could care for his grandfather using

leave under the Family and Medical Leave Act (FMLA). Med

‐

line approved Pierri for one day of leave each week.No. 19

‐ 3356 3

After Pierri began working under the new schedule, Tyler

began harassing him. Tyler beli tt led him in front of co

‐ work

‐

ers, demanded to know minutiae of Pierri’s day

‐ to

‐ day sched

‐

ule, and refused to assign him research and development

work, on which Pierri’s bonus primarily depended.

Pierri fi led several complaints with Medline’s HR depart

‐

ment, but the harassment continued and began to take a toll

on him. Citing stress and anxiety, Pierri asked for full

‐ time

FMLA leave. Medline granted his request e ff ective March 30,

2016 and kept him on that status through the end of Septem

‐

ber 2016. It then approved him for short

‐ term, and then long

‐

term, disability leave. Nearly a year after his leave had begun,

on March 28, 2017, Medline contacted Pierri’s a tt orney to fi nd

out whether he planned on returning; it warned the a tt orney

that if it did not hear from Pierri by the end of the week, he

would lose his job. Pierri did not contact the company, and so

at the end of two weeks, Medline terminated his employment.

Meanwhile, on March 28, 2016, Pierri fi led a charge of dis

‐

crimination with the Equal Employment Opportunity Com

‐

mission (EEOC), alleging that Medline had discriminated

against him based on his grandfather’s disability and had re

‐

taliated against him for complaining to HR. He received a

right

‐ to

‐ sue le tt er on September 27, 2017, and he fi led a pro se

complaint with the court on December 15, 2017. He later fi led

an amended complaint through counsel.

Pierri raised two counts against Medline. First, he con

‐

tended that Medline had discriminated against him in viola

‐

tion of the Americans with Disabilities Act (ADA), see

42 U.S.C. § 12112(b)(4), for his association with his ailing

grandfather. Second, he argued that Tyler retaliated against

him for complaining to HR and for fi ling a complaint with the4 No. 19

‐ 3356

EEOC, see 42 U.S.C. § 12203. The district court granted sum

‐

mary judgment to Medline on both counts. Pierri appeals, and

we now a ffi rm.

II

The ADA prohibits an employer from discriminating

against an employee “because of the known disability of an

individual with whom [the employee] is known to have a re

‐ lationship or association.” 42 U.S.C. § 12112(b)(4). Pierri as

‐

serts that Medline, through Tyler, discriminated against him

because of his association with his grandfather.

In Larimer v. Int’l Bus. Mach. Corp

., 370 F.3d 698 (7th Cir.

2004), we identi fi ed three situations in which a plainti ff may

bring a claim of associational discrimination. The “expense”

variant arises when an employee’s “[relative] has a disability

that is costly to the employer because the [relative] is covered

by the company’s health plan.” Id

. at 700; see also Dewi tt v.

Proctor Hosp.

, 517 F.3d 944, 947

− 49 (7th Cir. 2008) (denying

summary judgment to an employer on a claim that plainti ff

was fi red in order to avoid continuing to pay for her hus

‐

band’s medical expenses under its health insurance plan). The

second, “disability by association,” occurs when an employer

fears that the employee may have become infected with a dis

‐

ease because of the known disease of an associate of the em

‐ ployee. Larimer

, 370 F.3d at 700. The third, “distraction,” arises

when “the employee is somewhat ina tt entive at work because

his spouse or child has a disability that requires his a tt ention,

yet not so ina tt entive that to perform to his employer’s satis

‐

faction he would need an accommodation.” Id.

Pierri cursorily argues that his is a “distraction” situation.

But there is no evidence in the record to support this. PierriNo. 19

‐ 3356 5

has not argued or presented any evidence that he was dis

‐

tracted at work. Indeed, the evidence indicates that Pierri put

forward a strong performance on the job until he was

switched to a four

‐ day schedule to accommodate his need to

care for his grandfather. Pierri has not pointed to any evi

‐

dence that he was distracted, that Medline regarded him as

distracted, or that Medline took any action against him in re

‐

taliation for any real or imagined distraction.

We should note at this juncture that the three situations we

identi fi ed in Larimer were not meant to be exhaustive. That

said, Pierri has no theory of associational discrimination that

he has supported with any evidence. The record shows that

Medline made ample e ff orts to accommodate Pierri’s need to

care for his grandfather. It fi rst permi tt ed him to work a four

‐ day workweek, asking him to return to a fi ve

‐ day schedule

only after his performance deteriorated. Even then, it o ff ered

him the opportunity to work Tuesday through Saturday so

that he could take his grandfather to the hospital on Mondays,

an o ff er which Pierri declined for reasons unrelated to his

need to care for his grandfather. Thus, Pierri has failed to put

forward a prima facie case of associational discrimination un

‐

der the ADA. Cf. Magnus v. St. Mark United Methodist Church

,

688 F.3d 331, 336 (7th Cir. 2012) (“[A]n employee who cannot

meet the a tt endance requirements of [his] job is not protected

by § 12112(b)(4).”).

Even if Pierri could show some form of associational dis

‐

crimination, summary judgment in Medline’s favor would

still be warranted because Pierri failed to show that he suf

‐

fered any adverse employment action. Most of Pierri’s com

‐ plaints concern Tyler’s general rudeness toward him. He al

‐ leges, for instance, that Tyler brusquely told him not to6 No. 19

‐ 3356

interrupt while Tyler was having a conversation with another

employee and that Tyler threatened to report him when he

asked to leave work. Pierri also complains that Tyler gave him

an “average” rating on his performance evaluation when he

should have received a rating of “above average.” None of

these complaints describes an adverse employment action.

Hilt

‐ Dyson v. City of Chicago

, 282 F.3d 456, 466 (7th Cir. 2002)

(“Negative evaluations, standing alone, do not constitute ad

‐

verse employment actions.”); Jones v. Res

‐ Care, Inc.

, 613 F.3d

665, 671 (7th Cir. 2010) (“[U]nfair reprimands or negative per

‐

formance evaluations, unaccompanied by some tangible job

consequence, do not constitute adverse employment ac

‐

tions.”).

While Pierri’s bonus was a ff ected by these events, that too

did not amount to an adverse employment action. Pierri ad

‐

mits that he received his bonus for the fi rst quarter of 2016,

although he alleges that he had to complain to get it. He re

‐

ceived $750 for his R&D work that quarter. Medline capped

R&D bonuses at $3,000 per year, and so Pierri was right on

track, receiving one

‐ quarter of the maximum annual bonus

for the one quarter of the year he worked. Pierri would have

had the opportunity to earn the maximum R&D bonus for the

remaining three quarters of 2016 had he continued to work.

He did not earn the bonus for the simple reason that he com

‐ pletely stopped working, not because of any e ff ort by Tyler

(or anyone else at Medline) to deprive him of R&D work. See

Rabinovi tz v. Pena

, 89 F.3d 482, 488–89 (7th Cir. 1996) (“[L]oss

of a bonus is not an adverse employment action in a case

... where the employee is not automatically entitled to the bo

‐

nus.”). Although Tyler’s actions may have had the potential

to cost Pierri his bonus at some later time, they did not cost

him anything during the period he actually worked. ThisNo. 19

‐ 3356 7

hypothetical loss of potential future bonuses does not consti

‐

tute an adverse employment action.

Pierri also points to a change in his mix of work assign

‐

ments as evidence of discrimination. The record shows, he

contends, that Tyler systematically assigned him less and less

R&D work and more work conducting fi ber testing. This was

a demeaning shift, Pierri says, because fi ber testing was typi

‐ cally done by less quali fi ed junior technicians. Cases such as

Collins v. State of Illinois

, 830 F.2d 692, 702–04 (7th Cir. 1987),

Dahm v. Flynn

, 60 F.3d 253, 257 (7th Cir. 1994), and Tart v. Illi

‐

nois Power Co.

, 366 F.3d 461, 473–74 (7th Cir. 2004), all demon

‐

strate that such a de facto demotion can be an adverse employ

‐

ment action for purposes of the ADA.

That is indeed what those cases hold, but they each in

‐

volved a wholesale change in duties, not a simple shift in the

balance of job responsibilities. Although we accept that Pierri

was doing more fi ber testing and less R&D, the facts show

that he remained in the same job position, in the same depart

‐

ment, and at the same desk. Moreover, the fi ber

‐ testing work

was not performed exclusively by the lower

‐ level junior tech

‐

nicians; Pierri himself had performed just such work before

he asked for the accommodations to help him care for his

grandfather, and fi ber testing was one quality

‐ control meas

‐

ure the company took. Finally, although Pierri states that

R&D was 95% of a chemist’s work and that fi ber testing did

not require a degree in chemistry, he does not support that

assertion with any evidence in the record.

The district court thus correctly granted summary judg

‐

ment in favor of Medline on Pierri’s associational discrimina

‐

tion claim. Pierri failed to present material facts in dispute

that would show that Medline discriminated against him for8 No. 19

‐ 3356

his association with his grandfather or that he su ff ered an ad

‐

verse employment action.

III

Pierri’s retaliation claim fares no be tt er. A plainti ff may

show retaliation either directly or indirectly. In order to make

out a case of retaliation a plainti ff must show that: 1) he en

‐ gaged in statutorily protected activity; 2) he su ff ered an ad

‐

verse action; and 3) there was a causal link between the two.

Brown v. Advocate S. Suburban Hosp.

, 700 F.3d 1101, 1106 (7th

Cir. 2012). One way to show that causal link is through evi

‐

dence that “a similarly situated employee who did not engage

in the statutorily protected activity received be tt er treatment.”

Id

. That is not essential, however; the critical point is to o ff er

evidence that would allow the fact fi nder to conclude that the

employer took the adverse action because of the protected ac

‐ tivity.

For the reasons discussed above, Pierri has not shown that

he su ff ered an adverse employment action as a result of his

internal complaints to Medline. In this court, he also argues

that Medline fi red him in retaliation for his complaint to the

EEOC. The la tt er theory, however, is unavailable to him at this

point, because he failed to include it in his original complaint

to the EEOC, he made no e ff ort ever to amend his EEOC

charge, and he never fi led a new charge after he lost his job.

His failure to include this allegation in his charge to the EEOC

forecloses his ability to pursue it in the courts.

We add that his failure properly to exhaust his remedies

before the EEOC is not his only problem with this theory. On

the record assembled at the summary judgment stage, no rea

‐

sonable jury could fi nd that Medline ended his employmentNo. 19

‐ 3356 9

in retaliation for his complaints, whether to HR or to the

EEOC. It is undisputed that after Pierri had taken a full year

of leave and a year after the EEOC complaint, Medline con

‐

tacted him and informed him that he would be fi red if he did

not provide notice of his intention to return to work within

two weeks. Pierri never responded. The only possible conclu

‐

sion is that it was his failure to respond that led to his termi

‐

nation, not retaliation for his complaints. The district court

thus was also correct to grant summary judgment to Medline

on Pierri’s retaliation theory.

IV

We A FFIRM the judgment of the district court.