In the 

United States Court of Appeals 

For the Seventh Circuit ____________________ 

No. 17-2543 

BRENDA LEAR SCHEIDLER, 

Plaintiff-Appellant, 

v.

STATE OF INDIANA, et al., 

Defendants-Appellees. 

____________________ 

Appeal from the United States District Court for the 

Southern District of Indiana, Indianapolis Division. 

No. 1:14-cv-937-WTL-DML — William T. Lawrence, Judge. 

____________________ 

ARGUED OCTOBER 24, 2018 — DECIDED JANUARY 25, 2019 

____________________ 

Before BAUER, MANION, and BRENNAN, Circuit Judges. 

MANION, Circuit Judge. Brenda Lear Scheidler worked for 

the Indiana Department of Insurance (“IDOI”). She sought 

accommodations for disabilities related to her mental health. 

She asked, among other things, that her coworkers not startle 

her. She received these accommodations for several years. But 

on May 28, 2013, a frustrated supervisor reached toward 

Scheidler and said, “I could just strangle you.” An 

investigation into this workplace incident discovered that 
2 No. 17-2543 

several months earlier Scheidler commented in an elevator 

about a coworker’s apparent promotion prospects: “It’s who 

you know and who you blow.” 

IDOI terminated Scheidler. She sued it for disability 

discrimination, retaliation, and other claims. She lost some 

claims at summary judgment and she lost the rest at trial. She 

appeals summary judgment and an evidentiary decision. 

Finding no reversible error, we affirm. 

I. Facts

Scheidler1 began working for Indiana in a prison in 1999. 

She learned an inmate wrote in his diary he wanted to torture 

her sexually. Scheidler reacted emotionally and left her 

employment and sought medical treatment for the trauma. In 

2006, she began working at IDOI as a clerical assistant. She 

received good reviews, promotions, and no discipline until 

the termination at issue here. 

In 2009, IDOI hired a recently released offender. This 

apparently scared Scheidler, and as a result she was 

diagnosed with depression, bipolar disorder, and posttraumatic stress disorder. She took FMLA leave. When she 

returned, she discussed her condition with her supervisor, 

Cindy Donovan, and asked her to comment on any changes 

in Scheidler’s behavior. Scheidler also told other employees, 

including Annette Gunter and Ronda Ankney, about the 

diagnosis. Scheidler asked them not to startle her, be loud, or 

approach suddenly. She says she received these 

 

1 At all relevant times while working Lear was her surname. She later 

married and added her spouse’s name. On appeal she refers to herself as 

“Scheidler,” so we do, too. 
No. 17-2543 3

accommodations and for several years did not have any 

further problems at work until May 28, 2013. 

Gunter and Ankney are sisters-in-law. In 2010, Scheidler 

began carpooling with them. By 2013, Gunter supervised 

Scheidler for some purposes. 

In 2013, Scheidler applied for a particular position within 

IDOI. Mary Ann Williams, another IDOI employee, also 

applied. As Scheidler, Gunter, and Ankney left work one day 

in March or April 2013, they noticed Williams was not at her 

station. According to Ankney, Scheidler said, “Oh, it looks 

like Mary Ann is still upstairs in her interview for her 

government job.” 

“Brenda, don’t we all have government jobs? We’re all 

State employees,” Ankney responded. 

“Well, I mean for her federal job upstairs ... I’m sure she’ll 

get it because ... it’s who you know and who you blow,” 

Scheidler said in the elevator.2 Ankney and Gunter told 

Scheidler they disapproved, but did not report this comment 

until several months later. 

On May 28, 2013, Scheidler went to Gunter’s office after 

getting an email from Donovan about redistribution of duties. 

Scheidler sought clarification. Gunter said she did not know 

any more than Scheidler did. After Scheidler left, Gunter went 

 

2 The briefs and record report different versions of this comment. But both 

Scheidler and Ankney testified Scheidler said, “It’s who you know and 

who you blow.”
4 No. 17-2543 

to Ankney’s cubicle and said, “I don’t know what I’m going 

to do if I don’t string her up by the end of the week.”3

Overhearing the comment as she walked by, Scheidler 

asked, “Are you talking about me?” Gunter turned, stretched 

her arms out, leaned into Scheidler, made a choking motion, 

and said, “I could just strangle you.” This startled Scheidler. 

A heated exchange ensued. Scheidler mentioned Gunter’s 

medication. Gunter indicated Scheidler should quit. Gunter 

said she wanted to end the carpool. We refer to this encounter 

as the “cubicle episode.” Scheidler told Donovan about it, but 

did not want a formal investigation. But Donovan notified HR 

Director Katie Dailey and the State Personnel Department 

(“SPD”). Jeffrey Hendrickson of SPD investigated. He 

interviewed Scheidler and others, including Gunter, and 

learned of the “blow” comment. He then met with IDOI 

Commissioner Stephen W. Robertson and conveyed the facts. 

Robertson made the disciplinary decisions. He decided to 

issue a written reprimand to Gunter for her inappropriate 

conduct during the cubicle episode. He decided to terminate 

Scheidler. IDOI terminated her on July 8, 2013. The reason for 

this termination is, of course, the heart of this case. Scheidler 

claims IDOI terminated her for unlawful reasons. But IDOI 

argues it terminated her because of her two instances of 

inappropriate conduct: her “blow” comment in the elevator 

and her participation in the cubicle episode. 

 

3 The briefs and record also report different versions of this statement. The 

differences are immaterial here. We present the version quoted by Gunter 

during her trial testimony. 
No. 17-2543 5

II. Procedural Posture 

Scheidler filed twice with the E.E.O.C. She received notices 

of right to sue on both charges. She also pursued 

administrative relief under Indiana Code 4-15-2.2-24, 42. An 

ALJ found in her favor on her disability-based retaliation 

claim but found in IDOI’s favor on her other claims. The State 

Employees’ Appeals Commission affirmed, and remanded to 

set damages. But the parties agreed to stay those state 

proceedings pending resolution of the federal case. 

Scheidler filed a complaint with the district court and 

amended it twice. The second amended complaint brought 

three counts against Indiana and IDOI Commissioner 

Stephen W. Robertson, in his official and personal capacities. 

Count 1 (“Disability Discrimination”) alleged Defendants 

discriminated against her because of her disability “by failure 

to accommodate, discrimination and retaliation,” in violation 

of 42 U.S.C. §§ 1981a, 12112, and 12203; 29 U.S.C. § 794; related 

sections; and Indiana disability laws. 

Count 2 (“Sex Discrimination”) alleged Defendants 

discriminated against her because she is female, in violation 

of 42 U.S.C. §§ 1981a, 1983, 2000e-2, 2000e-5, and related 

sections. 

Count 3 (“Retaliation”) alleged Defendants discriminated 

against her “because she opposed and complained about 

discrimination and exercised her rights to free speech,” in 

violation of 42 U.S.C. §§ 1981a, 1983, 2000e-3, 2000e-5, 12112, 

and 12203; 29 U.S.C. § 794; related sections; Indiana 

whistleblower laws; and the First Amendments of the United 

States and Indiana. 
6 No. 17-2543 

We share the court’s observation that the second amended 

complaint does not clearly state what claims Scheidler 

asserts.4 She abandoned some claims. Defendants moved for 

summary judgment on all remaining claims. She clarified in 

her brief responding to this motion that she pursued claims of 

disability discrimination, failure to accommodate, and 

retaliation for making complaints of sex and disability 

discrimination. The court construed her disability claims as 

arising under the ADA and the Rehabilitation Act and her 

retaliation claims as arising under those statutes and Title VII 

of the Civil Rights Act. 

On grounds not raised by Defendants, the court granted 

summary judgment to Robertson on all claims. 

The court denied summary judgment on the ADA and 

Rehabilitation Act claims against Indiana for disparate 

treatment due to disability. The court found enough evidence 

on the prima facie case and pretext to require trial. 

The court granted summary judgment to Indiana on the 

claim for sex-based retaliation under Title VII. Scheidler 

argued her “blow” comment was a complaint of sex 

discrimination and claimed IDOI terminated her in response 

to this complaint. But the court determined she could not 

show she engaged in statutorily protected activity requisite 

for a retaliation claim because subjectively she did not have a 

 

4 For example, disability and sex discrimination cannot violate § 1983. See 

Gillo v. Gary Cmty. Sch. Corp., No. 2:14-CV-99-JVB-JEM, 2016 WL 4592200, 

at *4 (N.D. Ind. Sept. 2, 2016) (collecting cases and noting § 1983 does not 

create substantive rights susceptible to violations). And we do not think 

“First Amendment” of Indiana’s Constitution means what she thinks. But 

we do not hold these discrepancies against her.
No. 17-2543 7

sincere, good-faith belief she opposed an unlawful practice 

and because objectively her complaint did not involve 

discrimination prohibited by Title VII. Without a statutorily 

protected activity, this retaliation claim fell. 

The court also granted summary judgment to Indiana on 

the disability-based retaliation claim. Scheidler claimed IDOI 

terminated her in retaliation for complaining of disability 

discrimination. But the court noted she did not clearly 

articulate what her complaint of disability discrimination 

was. The closest she came to articulating a complaint of 

disability discrimination, according to the court, was: “When 

[Scheidler] complained to human resources about Annette 

Gunter threatening her and making a strangling motion at 

[her], she told human resources that she suffered from bipolar 

disorder and PTSD and that is why the situation startled and 

upset her more than it might other people.” But the court 

concluded she only raised her conditions to explain her 

reaction to Gunter, not to complain anyone discriminated 

because of disability. So the court determined she failed even 

to create an inference of statutorily protected activity. 

Finally, the court granted summary judgment for Indiana 

on the failure-to-accommodate claim, concluding it was 

simply her disability-discrimination-disparate-treatment 

claim worded differently because the accommodation she 

sought that IDOI failed to give was treatment equal to Gunter. 

So the only claims at trial were for disparate treatment due 

to disability discrimination against Indiana under the ADA 

and the Rehabilitation Act. The jury gave a defense verdict. 

Scheidler appeals the order granting partial summary 

judgment and an evidentiary ruling during trial. We review 
8 No. 17-2543 

summary judgment de novo, and will affirm when—viewing 

the evidence in the light most favorable to the nonmovant and 

drawing all reasonable inferences in its favor—there is no 

genuine issue of material fact and the movant is entitled to 

judgment as a matter of law. Barbera v. Pearson Educ., 906 F.3d 

621, 628 (7th Cir. 2018). We may affirm summary judgment 

for reasons not articulated by the district court so long as the 

record supports them, the district court adequately 

considered them, and the nonmovant had an opportunity to 

contest them. Gerhartz v. Richert, 779 F.3d 682, 685 (7th Cir. 

2015). 

A party generally forfeits issues and arguments raised for 

the first time on appeal. CNH Indus. Am. v. Jones Lang LaSalle 

Am., 882 F.3d 692, 705 (7th Cir. 2018). A party also generally 

forfeits issues and arguments it fails to raise in its initial 

appellate brief. Holman v. Indiana, 211 F.3d 399, 406 (7th Cir. 

2000). Insufficiently developed issues and arguments are also 

forfeited. United States v. Austin, 806 F.3d 425, 433 n.2 (7th Cir. 

2015). 

III. Analysis

A. Redundant claims?

Scheidler first argues the court erred by concluding her 

failure-to-accommodate claim was the same as her disabilitydiscrimination-disparate-treatment claim. The law recognizes 

the existence of separate claims. The ADA forbids certain 

types of disability discrimination: “No covered entity shall 

discriminate against a qualified individual on the basis of 

disability in regard to job application procedures, the hiring, 

advancement, or discharge of employees, employee 

compensation, job training, and other terms, conditions, and 
No. 17-2543 9

privileges of employment.” 42 U.S.C. § 12112(a). The ADA 

then defines “discriminate against a qualified individual on 

the basis of disability” to include disparate treatment and

failure to accommodate: “not making reasonable 

accommodations to the known physical or mental limitations 

of an otherwise qualified individual with a disability who is 

an applicant or employee ... .” 42 U.S.C. § 12112(b)(5)(A). 

A claim for disparate treatment based on disability under 

the ADA (and the Rehabilitation Act, with immaterial 

nuances) requires proof (1) plaintiff was disabled; (2) plaintiff

was qualified to perform essential functions with or without 

reasonable accommodation; and (3) disability was the “but 

for” cause of adverse employment action. Monroe v. Ind. Dep’t 

of Transp., 871 F.3d 495, 503–04 (7th Cir. 2017); Felix v. Wis. 

Dep’t of Transp., 828 F.3d 560, 568 (7th Cir. 2016). 

A claim for failure to accommodate under the ADA (and the 

Rehabilitation Act, generally) requires proof (1) plaintiff was 

a qualified individual with a disability; (2) defendant was 

aware of his disability; and (3) defendant failed to 

accommodate his disability reasonably. E.E.O.C. v. AutoZone, 

809 F.3d 916, 919 (7th Cir. 2016); Brumfield v. City of Chicago, 

735 F.3d 619, 630 (7th Cir. 2013). So two separate claims are 

possible under each statute. 

But neither Scheidler’s second amended complaint nor her 

statement of claims is clear regarding failure to accommodate. 

The closest Scheidler comes to advancing a failure-toaccommodate claim is under the theory that she asked her 

coworkers not to startle her, but Gunter threatened to strangle 

her. Yet Scheidler’s own statement of claims tends to 

undermine even this theory, because there she admitted: “The 
10 No. 17-2543 

State accommodated [my] disability before [I] complained 

about discrimination in May 2013.” 

Scheidler’s appellate brief is clearer. In the section arguing 

the court erred by conflating the failure-to-accommodate 

claim with the disparate-treatment claim, she asserts “the 

district court ignored the fact that Gunter failed to 

accommodate Scheidler on May 28, 2013 by raising her voice, 

making a strangling motion at Scheidler, and threatening 

her.” (Appellant’s Br., DE 20 at 26.) The brief does not mention 

any failure to accommodate unrelated to the cubicle episode. 

In any event, even viewing the facts in the light most 

favorable to her and drawing all reasonable inferences for her, 

we conclude summary judgment against her on the failure-toaccommodate claim was appropriate. The cubicle episode 

was an isolated, “one-off” event. She does not allege a failure 

to accommodate apart from the cubicle episode. Indeed, she 

acknowledged there were no problems involving a failure to 

accommodate other than the cubicle episode.5

 

5 In 2009, “Scheidler asked that her coworkers not startle her, not make 

any loud noises, and not approach her suddenly because the PTSD made 

her very jumpy. Scheidler continued to request those accommodations, 

and Donovan only told Scheidler once that ‘something is a little different’ 

about her behavior, which Scheidler corrected. There were no problems 

after that until [the cubicle episode in] May 2013 when Scheidler 

complained to Gunter and Donovan that Gunter told Scheidler that 

Gunter would like to strangle Scheidler, Gunter moved her hands toward 

Scheidler’s throat, and Gunter told Scheidler that Scheidler should leave 

and get another job.” (Appellant’s Br., DE 20 at 6–7, internal citations 

omitted.) “Scheidler had previously requested accommodations of not 

being startled, not having loud noises made around her, and not being 

approached suddenly, due to her disability, and Donovan, as well as 
No. 17-2543 11

“Reasonable accommodation under the ADA is a process, 

not a one-off event.” Cloe v. City of Indianapolis, 712 F.3d 1171, 

1178 (7th Cir. 2013), overruled on other grounds by Ortiz v. 

Werner Enters., 834 F.3d 760, 764 (7th Cir. 2016). Here, 

Scheidler has adduced no evidence that the interactive 

process broke down. Even accepting as we do for present 

purposes that she is disabled, that she asked her employer for 

reasonable accommodations, and that Gunter breached the 

arrangement on one occasion by threatening to strangle 

Scheidler, we cannot escape the facts that Scheidler otherwise 

received all the treatment she requested regarding her 

disability, that she reported this singular cubicle episode to 

Donovan, and that no further problems occurred. IDOI 

addressed Gunter’s misconduct by reprimanding her. That 

the reprimand did not benefit Scheidler because IDOI 

terminated her the same day is of no moment because IDOI 

was allowed to terminate her for her misconduct during the 

elevator episode plus her misconduct during the cubicle 

episode, even if her disability precipitated that misconduct.6 

We do not hold a single event could never support a claim 

for failure to accommodate. We merely conclude on this 

 

Gunter, Ankney, and ... other coworkers, had granted those 

accommodations before this incident.” (Id. at 10.) 

6 Felix, 828 F.3d at 568–69; Pernice v. City of Chicago, 237 F.3d 783, 785 (7th 

Cir. 2001) (“[A]n employee can be terminated for violations ... even if the 

... violations occurred under the influence of a disability.”); Palmer v. 

Circuit Court of Cook Cty., Ill., 117 F.3d 351, 352 (7th Cir. 1997) (“There is no 

evidence [plaintiff] was fired because of her mental illness. She was fired 

because she threatened to kill another employee. The cause of the threat 

was ... her mental illness ... . But if an employer fires an employee because 

of ... unacceptable behavior, the fact that that behavior was precipitated 

by a mental illness does not present an issue under the [ADA].”) 
12 No. 17-2543 

record the single cubicle episode does not support this claim. 

Any error in conflating the claim for failure to accommodate 

with the claim for disparate treatment was therefore harmless. 

B. Retaliation

Scheidler next argues the court erred in granting summary 

judgment on her retaliation claims. 

1. Title VII retaliation

Title VII bans employers from retaliating against 

employees who exercise rights under it. Title VII protects 

“any ... employees” who “opposed any practice” banned by 

the statute, or who “made a charge, testified, assisted, or 

participated in any manner in an investigation, proceeding, or 

hearing” under the statute. 42 U.S.C. § 2000e-3(a). 

A retaliation claim requires statutorily protected activity, 

which generally involves subjective and objective factors: 

“The plaintiff must not only have a subjective (sincere, good 

faith) belief that he opposed an unlawful practice; his belief 

must also be objectively reasonable, which means that the 

complaint must involve discrimination that is prohibited by 

Title VII.” Hamner v. St. Vincent Hosp. and Health Care Ctr., 224 

F.3d 701, 707 (7th Cir. 2000), overruled on other grounds by 

Hively v. Ivy Tech Cmty. Coll. Ind., 853 F.3d 339 (7th Cir. 2017). 

Scheidler claims her elevator comment—“It’s who you 

know and who you blow”—was statutorily protected activity. 

But the court held she failed both the subjective and objective 

factors because she did not have a sincere, good-faith belief 

she opposed an unlawful practice and because her comment 

did not involve discrimination prohibited by Title VII. The 

court noted she testified she did not think her comment was 

sexual. She told the ALJ she did not think “blow” had a sexual 
No. 17-2543 13

connotation and she meant merely “[b]lowing hot air.”7 The 

court noted the possibility a comment could be interpreted to 

involve a sex act does not make it a complaint of sex 

discrimination. And the court noted she had not provided any 

evidence she rooted her comment in her gender.8

Scheidler argues the court erred because the IDOI 

considered the comment to be a complaint of quid pro quo

sexual harassment, and an employer’s mistaken belief that an 

employee engaged in protected activity sustains retaliation. 

For support, she cites Heffernan v. City of Paterson, N.J., 136 S. 

Ct. 1412, 1418–19 (2016). But it is distinguishable. It involved 

a First Amendment claim, not a Title VII retaliation claim. 

Certainly we are open to persuasion by analogy, but she does 

not develop sufficient arguments for this, and we decline to 

make them for her. Also the cases are factually 

distinguishable. In Heffernan, defendant mistakenly thought 

plaintiff engaged in protected political speech, and punished 

him. But in our case, neither party thought the comment was 

 

7 “Blow” has various potential meanings. Another Lear famously hurls it 

without obvious sexual innuendo: “Blow winds ... ! Rage, blow!” William 

Shakespeare, King Lear, Act III, sc. ii. 

8 Even later, at trial, Scheidler did not characterize “blow” as sexual: “I 

meant it’s who you know; and when I say, ‘It’s who you blow,’ you know 

you got somebody that you talk most up to, that knows you in your 

private life. Her husband ... had been president of the Indiana Insurance 

Association. So she was and her husband was known ... by the 

Commissioner.” Scheidler did not testify she meant to accuse anyone of 

quid pro quo sexual harassment. She did not testify she meant anyone 

expected her, as a woman, to give sex to get ahead in her job. She did not 

explain her comment in relation to her gender. Instead, she testified she 

only meant to complain about favoritism because Williams and her 

husband knew the Commissioner. That complaint isn’t protected here.
14 No. 17-2543 

an actual complaint of sexual harassment or discrimination. 

That characterization apparently only arose late in litigation. 

Scheidler’s reliance on Thompson v. North American Stainless, 

562 U.S. 170, 173–79 (2011), is also misplaced. That case 

merely stands for the proposition that a person aggrieved by 

retaliation has standing to sue for it even if that person did 

not engage in the protected activity but someone else did. 

Neither of these cases requires the conclusion that the 

subjective component of the Title VII protected-activity 

inquiry is obviated if the employer mistakenly thinks the 

employee engaged in statutorily protected activity. 

Besides, she offers no evidence that her complaint satisfies 

the objective factor. She offers no evidence—and does not 

even claim—that the Commissioner (or anyone else with 

IDOI) asked for or received a sex act from Mary Ann Williams 

(or anyone else) in exchange for a promotion or any other 

employment benefit. She offers no evidence that her elevator 

comment concerned actual discrimination prohibited by Title 

VII. So the court did not err in granting summary judgment 

on the Title VII retaliation claim. 

2. Disability-based retaliation

Surviving summary judgment on disability-based 

retaliation requires showing (1) statutorily protected activity; 

(2) adverse employment action; and (3) causal connection. 

Guzman v. Brown Cty., 884 F.3d 633, 642 (7th Cir. 2018). The 

court granted summary judgment against this claim because 

Scheidler failed to show statutorily protected activity. She 

argues the court ignored several protected activities. 

First, she argues the court ignored her complaint about 

disability discrimination to Gunter during the cubicle episode. 
No. 17-2543 15

There, Scheidler explained that when Gunter (who did not 

have a disability) was upset and took Xanax, she was allowed 

to move out of her position. But when Scheidler (who has a 

disability) was upset, she was not given the same opportunity. 

Scheidler cites her testimony before the ALJ. But there are 

numerous problems with this argument. Foremost among 

them is forfeiture. In the cited testimony, she never says she 

complained to Gunter about disability discrimination. 

Scheidler does not say, for example, that she complained that 

Gunter received better treatment than Scheidler because

Scheidler is disabled and Gunter is not. Indiana argues for 

forfeiture of this argument for failure to raise it below. In 

reply, Scheidler claims she did raise this argument below, but 

she only cites a broader portion of her testimony before the 

ALJ and two pages from her response to the motion for 

summary judgment below. Again, nowhere in the cited 

materials does she say she complained to Gunter about 

disability discrimination. So Scheidler forfeited this 

argument. And the record does not support it anyway. 

Second, she argues the court ignored the fact that when 

she complained to HR about Gunter’s conduct during the 

cubicle episode, Scheidler told HR she suffered from bipolar 

disorder and PTSD and that is why the situation startled and 

upset her particularly. Scheidler argues her statement to HR 

was itself a complaint that Gunter failed to accommodate 

Scheidler as requested. Here, she only cites her testimony 

before the ALJ. But the cited testimony does not support her 

argument. Moreover, in neither her initial appellate brief nor 

her reply does she point to a time when she raised this specific 

argument to the district court. The mere fact that Scheidler 

argued below that Gunter and others failed to accommodate 

her disability misses the point. Such an argument is not 
16 No. 17-2543 

tantamount to an argument that Scheidler complained to HR 

that Gunter failed to accommodate and then IDOI retaliated 

against Scheidler for making that complaint. So she forfeited 

this argument. Also, the record does not support it. Therefore 

we need not address the other problems with it. 

Third, she argues the court ignored the fact that her 

statement to HR that her disabilities explained her reaction to 

Gunter was itself a request for an accommodation regarding 

Scheidler’s reaction. Here, she only cites the order granting 

summary judgment. Indiana argues for forfeiture for failure 

to develop. We agree. We also note her response to the motion 

for summary judgment did not adequately develop this 

argument. And the record does not support it anyway. 

Her remaining arguments regarding disability-based 

retaliation are unavailing. The court committed no reversible 

error in granting summary judgment on this claim. 

C. Commissioner

Scheidler brought claims against Indiana and IDOI 

Commissioner Stephen W. Robertson, in both his official and 

personal capacities. The court granted full summary 

judgment to Robertson on grounds not raised by Defendants, 

without notice or a reasonable response time, in violation of 

Rule 56(f)(2). Appellees admit this was an error. But the error 

was harmless. Independent of the Robertson irregularity, 

Scheidler lost all her claims at summary judgment or trial 

anyway. She offers no satisfactory explanation of how the 

premature summary judgment for Robertson ultimately 

prejudiced her. Finding no reversible error regarding 

summary judgment, we turn to the trial. 
No. 17-2543 17

D. Exclusion of Thomas evidence

Donna Thomas was an IDOI employee terminated in 

December 2011 after saying a racial slur. HR Director Dailey 

discussed Thomas at Scheidler’s ALJ hearing. In moving for 

summary judgment, Defendants referenced this testimony. 

Defendants asserted they terminated Thomas for her single 

slur. Scheidler challenged this at summary judgment. She 

said Thomas committed multiple infractions before the slur, 

Defendants gave her progressive discipline rather than 

immediate termination, and they did not terminate her for a 

single slur. 

At trial, after the direct examination of Scheidler, her 

attorney asked to be allowed to introduce four documents 

from Thomas’s personnel file to show IDOI treated a 

comparable person better than Scheidler. The court denied 

the admissibility of these documents, but expressly allowed 

the possibility Scheidler could introduce them through other 

witnesses. But she failed to pursue this opening. She called no 

further witnesses and she did not seek admission of the 

documents through any Indiana witness. 

Therefore Scheidler forfeited this evidentiary issue by 

forgoing the court’s invitation to seek admission of the 

exhibits later. See Ennin v. CNH Indus. Am., 878 F.3d 590, 596 

(7th Cir. 2017) (concluding it is “the very essence of waiver” 

to choose not to present evidence when given the 

opportunity). Anyway, the standard of review is abuse of 

discretion, Haynes v. Ind. Univ., 902 F.3d 724, 730 (7th Cir. 

2018), and the court did not abuse its discretion. 

 Besides, Scheidler has not offered sufficient reasons to 

convince us admission would have changed the outcome. 
18 No. 17-2543 

IV. Conclusion

We considered all Scheidler’s arguments and found none 

availing. Finding no reversible error, we AFFIRM.