The Honorable Edmond E. Chang, District Judge of the 

United States District Court for the Northern District of Illinois,

sitting by designation.

In the

United States Court of Appeals

For the Seventh Circuit

No. 11-3387

SVETLANA ARIZANOVSKA,

Plaintiff-Appellant,

v.

WAL-MART STORES, INCORPORATED,

Defendant-Appellee.

Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

No. 09 C 1404—Richard L. Young, Chief Judge.

ARGUED FEBRUARY 14, 2012—DECIDED JUNE 12, 2012

Before EASTERBROOK, Chief Judge, BAUER, Circuit Judge,

and CHANG, District Judge.



BAUER, Circuit Judge. Svetlana Arizanovska filed an

action against her employer, alleging that she was discriminated against because of her pregnancy and her
2 No. 11-3387

national origin. She added state-law claims of intentional

and negligent infliction of emotional distress. The district court granted summary judgment against her on

both her federal and state-law claims. We affirm.

I. BACKGROUND

Svetlana Arizanovska was born in Macedonia and was

a former employee of Wal-Mart Stores, Inc. (“Wal-Mart”).

There, she worked part-time, three days a week as a

stocker on the overnight shift. A stocker is expected to

stock, zone, process returns, and clean the store. Since

stocking requires lifting heavy items, there is a requirement that stockers be able to lift up to 50 pounds. The

assistant manager, Nyra Buckner, was Arizanovska’s

primary supervisor and was in charge of providing

Arizanovska with her job assignments. Arizanovska’s

supervisor during the night shift was Eddie Houston.

In November 2008, Arizanovska learned that she was

pregnant. After experiencing some vaginal bleeding and

spotting, she went to her doctor three times in January.

Sometime after January 12, she told Buckner that

her doctor told her that she could not lift more than

20 pounds. Buckner then assigned Arizanovska to work

in the baby food and toothbrush aisles.

Arizanovska experienced some bleeding again on

January 24, 2009. The next day, Buckner assigned her

to work in Aisle 3. Arizanovska complained to Houston

about being assigned to that aisle.

On January 25, she saw some more spotting, and on

January 27, while working at her other job, she experi-
No. 11-3387 3

enced bleeding yet again. At this point, Arizanovska

went immediately to her doctor and learned that she

had miscarried.

In May 2009, Arizanovska discovered that she was

pregnant again, and around May 16, provided Wal-Mart

with a medical restriction; she was not to lift more

than 10 pounds. As a result of her medical restriction,

Arizanovska could no longer perform the essential lifting

functions of her position as a stocker. Arizanovska

asked that she be transferred to a position where she

only folded clothes. But no such position exists; in fact,

employees who fold clothes are also expected to download stock.

On May 18, personnel manager Luann Christy consulted with human resources manager Curtis Mace;

they agreed that under Wal-Mart’s Accommodation in

Employment Policy, Arizanovska would have to take a

leave of absence because she was unable to perform her

job duties. Wal-Mart’s Accommodation in Employment

Policy states:

If you have a medical condition that is not a

disability, but which prevents you from performing

your job, including pregnancy, you may be eligible for

a job aid or environmental adjustment under this

policy, a leave of absence under the Leave of Absence

Policy, or you also may request transfer to another

open position under the Associate Transfer Policy. . . .

Job aid or environmental adjustment means a change

in practices or the work environment which is both

easily achievable and which will have no negative
4 No. 11-3387

impact on the business. This type of accommodation does not include creating a job, light duty or

temporary alternative duty, or reassignment.

On May 20, Arizanovska told Christy that she would

not take a leave of absence and that she wanted “light

duty”; specifically, she wanted to fold clothes. Christy

told Arizanovska that she could not fold clothes and

that she would have to take a leave of absence until her

doctor released her from her medical restrictions that

prevented her from performing her job duties.

Arizanovska did not return to work at Wal-Mart after

May 20, 2009, and a little over a month later she

miscarried again. She filed a lawsuit against Wal-Mart

shortly thereafter.

The suit claimed that Wal-Mart had violated her

rights under Title VII of the Civil Rights Act, as amended

by the Pregnancy Discrimination Act. She complained

that Wal-Mart failed to accommodate her under its Accommodation in Employment Policy because of

her pregnancy and/or national origin. She also claims

that Wal-Mart retaliated against her for filing a charge

of discrimination with the Equal Employment Opportunity

Commission (“EEOC”). Finally, Arizanovska brought

several state-law claims against Wal-Mart—intentional

and negligent infliction of emotional distress, negligent

supervision, and liability for its employees’ actions under

the theory of respondeat superior. The district court

granted summary judgment against Arizanovska on all

her federal and state-law claims. She timely appealed

that judgment.
No. 11-3387 5

II. DISCUSSION 

We must determine whether the district court erred in

granting summary judgment in favor of Wal-Mart on

Arizanovska’s claims. We review de novo a district court’s

grant of summary judgment, viewing the facts and all

reasonable inferences in the light most favorable to

the nonmoving party—here, Arizanovska. Hall v. Nalco

Co., 534 F.3d 644, 646 (7th Cir. 2008). We have

previously held that “a factual dispute is ‘genuine’ only

if a reasonable jury could find for either party.” SMS

Demag Aktiengesellschaft v. Material Scis. Corp., 565 F.3d

365, 368 (7th Cir. 2009).

We turn now to Arizanovska’s claims, taking each

theory of recovery in turn.

A. Pregnancy and National Origin Discrimination

Arizanovska claims that she was forced out of her job at

Wal-Mart as a result of pregnancy and national origin

discrimination. The district court disagreed, finding

that she did not make out a prima facie case of discrimination. Arizanovska may prove her discrimination case

under either the direct or indirect method, Weber v. Univ.

Research Ass’n, Inc., 621 F.3d 589, 592 (7th Cir. 2010), but

has elected to pursue her discrimination case only

under the indirect proof method.

Under the indirect method, Arizanovska is required to

produce evidence establishing a prima facie case of discrimination: (1) that she was a member of a protected

class; (2) that she was performing her job satisfactorily;
6 No. 11-3387

(3) that she suffered an adverse employment action;

and (4) that Wal-Mart treated a similarly-situated individual outside Arizanovska’s protected class more favorably. Dear v. Shinseki, 578 F.3d 605, 609 (7th Cir. 2009). If

Arizanovska satisfies those elements, the burden then

shifts to Wal-Mart to identify a legitimate, nondiscriminatory reason for the action taken. Stockwell v. City of

Harvey, 597 F.3d 895, 901 (7th Cir. 2010). And if Wal-Mart

advances a nondiscriminatory reason for requiring

Arizanovska to take a leave of absence, summary judgment would only be erroneous if Arizanovska produced

evidence that the proffered reason was a pretext for

improper discrimination. Id.

Wal-Mart agrees that Arizanovska is a member of a

protected class but argues that Arizanovska cannot satisfy

the other three prongs of the prima facie case. Summary

judgment is appropriate if Arizanovska cannot demonstrate any one element of the prima facie case, so we

only need address the fourth prong, an obvious loser. See

Lewis v. City of Chicago, 496 F.3d 645, 652 (7th Cir. 2007).

In order to meet the fourth prong of the prima facie case,

Arizanovska must identify a similarly-situated employee

outside her protected classes who was treated more

favorably. Shinseki, 578 F.3d at 609. Arizanovska has not

done this. To support both her pregnancy and national

origin discrimination claims, Arizanovska contends that

two pregnant, African-American employees were treated

more favorably—i.e., that because of their pregnancies

and race they were allowed to work in aisles with less

heavy items. But the evidence contradicts that. First,
No. 11-3387 7

neither of those employees was assigned to light-duty

work. Second, neither employee provided Wal-Mart

with temporary medical restrictions that prevented

them from doing their job duties. Because there is no

basis to conclude that those employees were treated

more favorably, she cannot make out a prima facie case

for discrimination.

Moreover, with respect to her pregnancy discrimination claim, Arizanovska has not identified a similarlysituated employee outside her protected class—i.e., nonpregnant. Both of the employees she identified were

pregnant, and so we cannot infer pregnancy discrimination on that basis because there is no comparison

between the treatment of pregnant employees versus nonpregnant employees. The purpose of the “similarly-situated” comparator is to ensure that all other variables are

discounted so that discrimination can be inferred. “If an

employer takes an action against one employee in a

protected class but not another outside that class, and all

else is equal between the comparators, we can infer

discrimination, at least provisionally at the prima facie

stage of the analysis.” Silverman v. Bd. of Educ., 637 F.3d

729, 742 (7th Cir. 2011). The “similarly-situated” inquiry

is a “flexible, common-sense one,” Henry v. Jones, 507

F.3d 558, 564 (7th Cir. 2007), but it at least requires that

the plaintiff name a comparator outside her protected class.

Arizanovska also argues that Wal-Mart’s Accommodation Policy gives preferential treatment to an employee

who is injured outside of work over a pregnant woman

whose condition was attained outside of work. That
8 No. 11-3387

argument, however, is really a challenge to the policy

itself and is not applicable when proving a discrimination case under the indirect method. And anyway, Title VII

does not require that sort of accommodation. Wal-Mart

did not create a light duty position for Arizanovska

because, according to its Accommodation Policy, it

would not create that position for any non-pregnant

employee who was under medical restrictions. That

policy is consistent with Title VII’s requirements. See

Serednyj v. Beverly Healthcare, LLC, 656 F.3d 540, 548 (7th

Cir. 2011) (“[A]n employer is not required to provide

an accommodation to a pregnant employee unless it

provides the same accommodation to its similarly

situated non-pregnant employees.”).

In short, because Arizanovska has not shown that

similarly-situated employees outside of her protected

classes were treated more favorably, she has failed to

establish a prima facie case of racial or national origin

discrimination under the indirect method. We find, as

the district court did, that summary judgment was

proper. We need not reach the issue of pretext, as plaintiff

has failed to state a prima facie case of discrimination.

See Cowan v. Glenbrook Sec. Serv., Inc., 123 F.3d 438, 445

(7th Cir. 1997).

B. Retaliation

Arizanovska contends that Wal-Mart retaliated against

her after she filed her EEOC charge of discrimination.

Unlike her discrimination claim, which she pursued under

the indirect method, Arizanovska now relies exclusively
No. 11-3387 9

on the direct method. That means she can overcome

summary judgment only by showing that: (1) she

engaged in statutorily protected activity; (2) she suffered

a materially adverse employment action; and (3) the

protected activity is causally related to the adverse employment action. Davis v. Time Warner Cable of Se. Wisconsin, L.P., 651 F. 3d 664, 677 (7th Cir. 2011).

There is no question here regarding the first element

of the prima facie case. Arizanovska filed an EEOC charge

of discrimination—clearly a protected activity under

Title VII. The second element, however, requires some

discussion. Arizanovska identifies her adverse employment action as Wal-Mart placing her on an unpaid leave

of absence. But the district court determined that this

was not an adverse employment action.

We have defined adverse employment quite broadly.

McDonnell v. Cisneros, 84 F.3d 256, 258-59 (7th Cir. 1996).

But for an employment action to be adverse, “the challenged action must be one that a reasonable employee

would find to be materially adverse such that the employee would be dissuaded from engaging in the

protected activity.” Roney v. Illinois Dep’t of Transp., 474

F.3d 455, 461 (7th Cir. 2007) (citing Burlington N. & Santa

Fe Ry. Co. v. White, 548 U.S. 53, 62 (2006)). We have

noted that materially adverse employment actions can

be categorized into three groups of cases involving: (1) the

employee’s current wealth such as compensation, fringe

benefits, and financial terms of employment including

termination; (2) the employee’s career prospects thus

impacting the employee’s future wealth; and (3) changes
10 No. 11-3387

to the employee’s work conditions including subjecting

her to “humiliating, degrading, unsafe, unhealthful, or

otherwise significant negative alteration in [her] work

place environment.” Herrnreiter v. Chicago Hous. Auth., 315

F.3d 742, 744-45 (7th Cir. 2002) (internal citations and

quotations omitted).

Being forced to take an unpaid leave of absence

certainly falls into the first category of material adverse

employment actions. Yet Wal-Mart argues that its offer

of an unpaid leave of absence was not materially

adverse because it was consistent with its Accommodation Employment Policy; the choice was either terminate

Arizanovska or place her on an unpaid leave of absence

because there were no other open positions on the overnight shift and, according to its Accommodation Employment Policy, Wal-Mart does not create light duty

positions for any employee. That may be well and true;

however, that rationale ignores the reality of the situation. The fact remains, Arizanovska went from a part-time

employee to unpaid and temporarily unemployed. WalMart has not cited any case—nor are we aware of

any—in which an employment action was found not to

be materially adverse merely because it was consistent

with a broader company policy. In fact, such a finding

would allow companies to retaliate, and even discriminate

with impunity so long as the employment action complained of was consistent with some internal policy;

a company’s employment policy should not be used

to shield liability in that way. Arizanovska went from

a part-time employee to unpaid and temporarily unemployed. That certainly is not a promotion; nor is it a
No. 11-3387 11

continuation of the status quo. And the mere fact that

it was the result of Wal-Mart’s Accommodation Policy

does not make it sting any less. We find that she has

suffered a materially adverse employment action and

has satisfied the first two elements of a prima facie retaliation case. But she is a loser on the third element.

To establish the third element—i.e., a causal relation—she must show that her EEOC charge was a “substantial motivating factor” in Wal-Mart’s decision to

require her to take an unpaid leave of absence. Leitgen v.

Franciscan Skemp Healthcare, Inc., 630 F.3d 668, 675 (7th

Cir. 2011). Here, Arizanovska points to an e-mail correspondence between two of Wal-Mart’s supervisors—

Christy (Personnel Manager) and Mace (Human Resources

Manager). In the e-mail exchange, Christy explained to

Mace that Arizanovska had filed legal action against

Wal-Mart following her first pregnancy. Christy

then further explained that Arizanovska was pregnant

again and now had a medical restriction that prevented

her from lifting more than 10 pounds. Mace responded that Arizanovska would have to take a leave

of absence until she could perform her essential job

functions. If this e-mail seems innocuous, it is because it

is. Mace’s and Christy’s statements do nothing more

than explain Wal-Mart’s Accommodation Policy, which

would apply regardless of whether Arizanovska filed

a claim. There is no indication that Arizanovska’s

EEOC charge was a factor, much less a substantial motivating factor, for Wal-Mart to require her to take a

leave of absence. We have no basis from which to infer

that Wal-Mart’s motive was actually retaliatory. The
12 No. 11-3387

district court properly granted summary judgment

against Arizanovska’s retaliation claim.

C. State-law Claims

We find that the district court did not err in

granting summary judgment against Arizanovska on

her remaining state-law claims.

III. CONCLUSION

For the reasons stated above, we AFFIRM the district

court’s decision to grant summary judgment in favor of

the defendant.

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