In the

United States Court of Appeals

For the Seventh Circuit

No. 09-3143

DARRELL LYNN MILLER,

Plaintiff-Appellant,

v.

ILLINOIS DEPARTMENT OF TRANSPORTATION,

Defendant-Appellee.

Appeal from the United States District Court 

for the Southern District of Illinois.

No. 3:07-cv-00677—William D. Stiehl, Judge.

ARGUED AUGUST 4, 2010—DECIDED MAY 10, 2011

Before POSNER, ROVNER, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge. Plaintiff-appellant Darrell

Miller worked for five years for defendant-appellee

Illinois Department of Transportation (IDOT) as a

highway maintainer on a bridge crew. He was fired in

June 2007 and then filed this suit alleging discrimination and retaliation in violation of the Americans with

Disabilities Act (ADA), 42 U.S.C. § 12101 et seq. The district

court granted summary judgment for IDOT. We reverse.
2 No. 09-3143

Miller has presented evidence from which a reasonable

jury could conclude that IDOT regarded him as disabled

because of his fear of heights. Miller has also presented

evidence that would allow a reasonable jury to find that

he could perform the essential functions of his job with

reasonable accommodations. Finally, we conclude that

there are genuine issues of material fact concerning

IDOT’s stated reasons for firing Miller.

I. Relevant Facts and Proceedings

Because we review a grant of summary judgment, we

must consider the evidence in the light most favorable

to Miller, the non-moving party. We must give him the

benefit of any conflicts in the evidence and any reasonable inferences that might be drawn in his favor.

E.g., Winsley v. Cook County, 563 F.3d 598, 602-03 (7th Cir.

2009).

Miller began working for IDOT in 2002 and was

assigned to the bridge crew based in Dongola, Illinois,

near the southern tip of the state. A bridge technician

and four other highway maintainers were also assigned

to the same crew. As a highway maintainer assigned to

a bridge crew, Miller was responsible for a variety of

tasks, many of which could be performed from the

ground. Those tasks included operating and repairing

maintenance vehicles and equipment, including trucks,

pavement marking equipment, tractors, mowers, snow

plows, and jack hammers; maintaining large culverts, abutments, guardrails, and drainage installations;

spreading salt, sand, gravel, and asphalt; directing traffic
No. 09-3143 3

during maintenance operations; cutting grass, weeds, and

brush; repairing signs and digging post holes; cleaning

and maintaining the crew’s headquarters; disposing of

trash and highway debris; and record-keeping. Some of

the bridge work, of course, required working at some

height above the ground or water. The highway

maintainers on the bridge crew also had to chip, seal,

and clean bridges, and clean and paint bridge bearings.

From the outset of his employment, Miller had

occasional difficulty working from heights, particularly

when he worked in an unsecured environment. When

he began work he had not been formally diagnosed

with acrophobia, but Miller informed IDOT and the

lead worker of his bridge team, Steve Maurizio, that he

had a fear of some heights and that there were a few

tasks that he would not be able to do. Specifically, he

informed Maurizio that he would not be able to “walk

a bridge beam.” In spite of his fear, Miller was able to

perform work in an elevated, hydraulically lifted

“snooper bucket” at heights of up to 80 feet, and he was

able to crawl on the arch of a bridge on a catwalk. He

estimated that his fear would be triggered and he

would have problems with less than three percent of his

job description, but even then he was able to complete

his assigned tasks on all but one occasion.

Until early 2006, IDOT informally accommodated

Miller by allowing other members of his team to

handle those tasks for him, just as other team members’

conditions or limitations were accommodated. For example, Maurizio was unable to weld. Another co-worker
4 No. 09-3143

refused to ride in the snooper bucket, was not required

to climb the arches of an interstate bridge linking Illinois

to Kentucky, was unable to spray bridges because of

his allergies, was not required to mow the yard, and

was not required to rake patching debris. Other crew

members would swap assignments as needed to enable

the crew to complete those tasks. In short, the evidence

would allow a jury to find that the team worked effectively as a team, taking advantage of each member’s

abilities and accommodating each member’s limitations.

Miller worked successfully as a highway maintainer

on the bridge crew without incident for several years.

Then, on March 10, 2006, Miller’s crew was working on

a bridge in Marion, Illinois. The crew was installing

pieces of plywood underneath the bridge as a protective

shield to protect the road below from falling pieces

of concrete. The crew’s bridge technician, Kenneth

Greenlee, assigned Miller to go up in a snooper bucket

from which he would nail wood beams to the bridge

flanges and then nail plywood sheets to the beams. This

assignment required Miller to unhook his lifeline and

work unsecured. He completed his assigned task, but

he later filed a grievance because he believed he had

been ordered to perform an unsafe task.

Less than two weeks later, on March 23, 2006, Miller’s

bridge crew was changing light bulbs on a bridge that

crosses the Mississippi River. Crew leader Maurizio

assigned Miller and another crew member to “go over

the edge” of the bridge to change the navigation light

bulbs directly above the river. Miller had to climb down
No. 09-3143 5

a ladder on the side of the bridge to reach the station

that held the light fixtures. Some of the stations would

have required him to stand on a bridge beam while

wearing a lifeline. When Miller attempted to change a

bulb that would have required him to stand on a

bridge beam, he was unable to complete the task. He

suffered a panic attack and was taken by ambulance

to a hospital. That was the first, last, and only time

Miller was unable to complete an assigned task because of his fear of heights.

IDOT’s response to that incident is central to whether

it regarded Miller as disabled. IDOT placed Miller on

sick leave and ordered him to submit to a fitness-forduty examination. IDOT’s examiner, Dr. Byron Gorton,

diagnosed Miller with acrophobia and concluded that

he was unfit to work as a highway maintainer. An

IDOT administrator told Miller that he needed to

request non-occupational disability status or he would

“get nothing.” Miller made the request, and IDOT placed

Miller on non-occupational disability status on June 23,

2006.

Miller described his limitation as being unable to work

at heights above 20 to 25 feet in an exposed, extreme

position. IDOT documents reflect that, from the time it

received Dr. Gorton’s diagnosis, it treated Miller as if

his condition imposed much more extensive limits, as if

he were unable to work above any height greater than

20 feet. A June 21, 2006 memorandum (author unknown)

to Angie Ritter, an IDOT personnel manager, explained,

describing the work required in the bridge section of

the bridge crew:
6 No. 09-3143

Working in the Bridge Section requires working

above 20’ regularly. 75% of Highway Maintainers

work time is spent working on bridge structures.

Bridge deck patching often requires full depth holes

through the deck that exposes the crew to this hazard. Any work in the snooper truck, on bearings,

piers, navigation lights, chipping concrete, etc.

requires some exposure to heights. Traffic control,

brush removal and yard maintenance are also

included in the HM’s assignments that would not

normally include this exposure. However, flagging

on a bridge or clearing brush on a steep slope

could also be perceived as a height exposure.

The memorandum concluded that the traffic section

and maintenance team section of the bridge crew would

also be off-limits to someone unable to work at heights

above 20 feet.

Miller filed a grievance challenging Dr. Gorton’s conclusion that he was unfit to perform his duties. On July 2,

2006, Miller also filed a request for reasonable accommodation, requesting that he not be required to work

“on bridge beams and other extreme places over 20-25’—

Bridge piers or skeletal structures (frames) and other

places—ex. snooper bucket, etc.,” and that he be transferred from Dongola to the IDOT yard in Anna, Illinois.

In response, personnel manager Ritter told him, “I’ll

tell you right now, we don’t grant requests.”

Miller supported his grievance and request for accommodation with the independent evaluation of psychiatrist

Dr. William Mings, who opined that Miller could con-
No. 09-3143 7

tinue to perform the functions of his job if IDOT provided

him with the same reasonable accommodation that it

had in the past. In November 2006, the Illinois Retirement System required Miller to be examined by

another psychiatrist, Dr. Klamath, who also found that

Miller was fit for work and should be returned to work

with whatever minor accommodations might be required.

Miller’s request for accommodation was formally

denied on January 16, 2007. On May 1, 2007, however,

Miller was ordered back to work, and the events of his

return are central to his retaliation claim. Miller reported

to the Carbondale District Nine IDOT office. There he

encountered Angie Ritter. Referring to Ritter, Miller then

said to another employee: “Right there is Arch enemy

Number 1. I have never hit a woman. Sometimes I would

like to knock her teeth out.” IDOT construed Miller’s

comment as a threat, informed Miller that he had been

relieved of duty, and instructed him to go home.

On June 20, 2007, Miller was formally discharged for

making a threat of violence against another employee

and for disruptive behavior. Miller grieved his discharge,

and the parties submitted to arbitration. Miller was

found to have engaged in “conduct unbecoming” but

was returned to work, without back pay or benefits, on

November 19, 2008.

Miller then filed this suit under the Americans with

Disabilities Act. He alleged that IDOT had discriminated

against him by failing to provide an accommodation

and terminating him. He also alleged that IDOT had

illegally retaliated against him for requesting an accom-
8 No. 09-3143

modation. IDOT moved for summary judgment. In response, Miller presented evidence that Maurizio had

threatened violence against his co-workers on more

than one occasion—including one incident in which

he threatened to kill three co-workers—but unlike

Miller, was not disciplined or terminated for his behavior.

The district court granted IDOT’s motion on both

claims. The district court found that Miller’s discrimination claim could not survive because Miller’s requested

accommodation—rearranging job tasks among members

of the bridge crew—was unreasonable, and that working

at heights above 25 feet was an essential function of

Miller’s job on the bridge crew. The district court then

found that Miller’s retaliation claim failed because he

had not provided sufficient evidence that IDOT’s given

reason for terminating his employment was pretextual.

We reverse because all three of these findings are subject to genuine disputes of material facts.

II. Discussion

A. “Regarded as” Disabled

The ADA prohibits discrimination only against a

“qualified individual with a disability.” 42 U.S.C.

§ 12112(a). To succeed on his ADA claim, Miller must

demonstrate that he was protected under the Act. We

first determine whether Miller presented sufficient evidence from which a reasonable jury could conclude that

he was an individual with a disability within the

meaning of the statute.
No. 09-3143 9

“Disability” is defined as (a) a physical or mental impairment that substantially limits one or more of the

major life activities of an individual; (b) a record of such

an impairment; or (c) being regarded as having such

an impairment. 42 U.S.C. § 12102(2). In the district court

and on appeal, Miller has argued that he satisfies the

“regarded as” prong of the ADA definition of disability.

To satisfy that prong of the definition, Miller had to offer

evidence indicating that IDOT believed, rightly or

wrongly, that he had an impairment that substantially

limited one or more major life activities. 29 C.F.R.

§ 1630.2(l); see also Cigan v. Chippewa Falls School Dist.,

388 F.3d 331, 335 (7th Cir. 2005). IDOT had to “believe

either that [Miller had] a substantially limiting impairment that [he did] not have or that [he had] a substantially limiting impairment when, in fact, the impairment [was] not so limiting.” Sutton v. United Air Lines,

Inc., 527 U.S. 471, 489 (1999); see also Moore v. J.B. Hunt

Transp., Inc., 221 F.3d 944, 954 (7th Cir. 2000).

Miller argues that IDOT regarded him as substantially

limited in the major life activity of working. We have

stated that working can be a major life activity under the

ADA. See Peters v. City of Mauston, 311 F.3d 835, 843

(7th Cir. 2002). Although the Supreme Court reserved

judgment on the question, see Toyota Motor Mfg., Ky., Inc.

v. Williams, 534 U.S. 184, 200 (2002), IDOT has not asked

us to reconsider our position under the law applicable

at the relevant time.

To have been regarded as substantially limited

in his ability to work under the law in effect at the
10 No. 09-3143

Congress responded to these and similar decisions by 1

enacting the ADA Amendments Act of 2008, which provided,

among many important changes, that a person can satisfy

the “regarded as” definition of disability if the person “has

been subjected to an action prohibited under this Act because

of an actual or perceived physical or mental impairment

whether or not the impairment limits or is perceived to limit

a major life activity.” Pub. L. 110-325 §4, amending 42 U.S.C.

§ 12102(3)(A). The amendments did not take effect until

January 1, 2009, so we consider here the statutory and

regulatory provisions as they stood before the 2008 amendments.

relevant time, Miller must come forward with evidence

that IDOT regarded him as limited in his ability to

perform not merely one particular job but a class or

broad range of jobs. See 29 C.F.R. § 1630.2(j)(3)(i); Toyota

Motor, 534 U.S. at 200 (if working is determined to be a

major life activity under the ADA, a claimant will be

required to show “an inability to work in a broad range

of jobs”); Sutton, 527 U.S. at 493-94 (plaintiffs with

vision impairment were not “regarded as” substantially

limited in major life activity of working because they

failed to show employer regarded their impairment as

precluding them from a substantial class of jobs); Kuptas

v. City of Greenwood, 398 F.3d 609, 612-13 (7th Cir. 2005)

(following Toyota Motor); Davidson v. Midelfort Clinic, Ltd.,

133 F.3d 499, 511 (7th Cir. 1998) (under “regarded as”

theory of disability, “the employer’s perception of the

plaintiff’s inability to work” must have a breadth comparable to ADA’s requirements for actual disability).1
No. 09-3143 11

The ADA regulations call for consideration of a

number of factors in applying this test, including the

nature and severity of the perceived impairment; the

duration or expected duration of the perceived impairment; and the permanent or long-term impact, or expected

permanent or long-term impact, of the impairment.

29 C.F.R. § 1630.2(j)(3)(ii). Other factors specific to the

major life activity of working include the geographical

area to which the person has reasonable access; “the

job from which the individual has been disqualified

because of an impairment, and the number and types

of jobs utilizing similar training, knowledge, skills or

abilities, within that geographical area, from which the

individual is also disqualified because of the impairment;” as well as the number and types of other jobs not

utilizing similar training, knowledge, skills or abilities,

within that geographical area, from which the individual

is also disqualified because of the impairment. Id.

This was a demanding standard, but the “regarded as”

prong is an important protection that should not be

nullified by creating an impossibly high standard of

proof, as Congress indicated even more strongly in the

2008 amendments. Even under the earlier law, for

example, it is not necessary for an employee to show

that the employer consciously conducted the same sort

of full statutory analysis that a trial judge or jury would

conduct in a case of actual impairment. An employer

who is irrationally and illegally overreacting to a

perceived disability is unlikely to carry out consciously

the full ADA analysis.
12 No. 09-3143

If the employee contends he was regarded as substantially impaired in the major life activity of working, he

must present evidence from which it could be inferred

that the employer regarded him as facing restrictions

that would be significant enough to restrict his ability to

meet the requirements of a substantial class of other jobs,

beyond his current job. The real problem here is one of

proof. How broadly did the employer, subjectively,

view the person’s impairment?

The Supreme Court addressed a similar problem of

subjective knowledge under the Eighth Amendment in

Farmer v. Brennan, 511 U.S. 825 (1994). The Eighth Amendment prohibits prison and jail officials from acting with

“deliberate indifference” to a prisoner’s basic, minimal

needs for health and safety. In Farmer the Supreme

Court held that “deliberate indifference” refers to the

prison official’s subjective state of mind, requiring proof

that the prison “official knows of and disregards an

excessive risk to inmate health or safety; the official

must both be aware of facts from which the inference

could be drawn that a substantial risk of serious harm

exists, and he must also draw the inference.” Id. at 837.

The Farmer Court went on to explain, however, that

whether the defendant official had “the requisite knowledge of a substantial risk is a question of fact subject to

demonstration in the usual ways, including inference

from circumstantial evidence.” Id. at 842. Thus, a jury

can infer that an official had actual knowledge of a

risk based on evidence that the risk was obvious. Id.

Similarly here, the issue of the employer’s subjective

perception of the degree of Miller’s impairments can be
No. 09-3143 13

addressed through circumstantial evidence, including

reasonable inferences based on the evidence of the employer’s perceptions of Miller’s impairments. Quantitative

evidence of the local job market may be helpful, as the

regulations indicate, but is not indispensable.

In this case, Miller offered sufficient evidence from

which a reasonable jury could conclude that IDOT regarded him as precluded from a substantial class of

jobs. When Miller began working for IDOT as a highway

maintainer on the bridge crew, and before he was

formally diagnosed with acrophobia, his supervisors

and co-workers were aware that he was unable to work

at heights in exposed positions. During the next four

years from his hire until the spring of 2006, IDOT and

Miller’s bridge crew supervisors permitted him to swap

tasks among his fellow crew members so that he could

avoid the occasional task that he was unable to do.

After the March 23, 2006 panic attack above the Mississippi River, Miller was formally diagnosed with acrophobia. IDOT immediately precluded him from performing

any task required of the bridge crew, even tasks that

could be performed from the ground—let alone from a

secure, unexposed height. IDOT forced him on nonoccupational disability leave and exaggerated the relatively modest effects of the acrophobia. Even after two

psychiatrists cleared him for work without any significant restrictions, IDOT continued to preclude Miller

from returning to any and all tasks performed by the

bridge crew. According to the record, those tasks included everything from the maintenance and operation
14 No. 09-3143

of vehicles and equipment to spreading salt and gravel,

cutting grass, and directing traffic. In other words, IDOT

treated Miller as though he was unable to perform a

wide range of jobs. A reasonable jury could find from

this evidence that IDOT regarded Miller as disabled by

his acrophobia under the law before the 2008 amendments. We proceed to consider the other contested elements of Miller’s ADA discrimination claims. 

B. Essential Function and Reasonable Accommodation

The ADA requires an employer to make reasonable

accommodations that will allow a “qualified individual

with a disability” to perform the essential functions of his

or her job. 42 U.S.C. § 12112(b)(5)(A). IDOT argues that

working above 25 feet in an extreme or exposed position

is an essential function of members of the bridge crew

and that Miller’s requested accommodation was unreasonable. The district court agreed and granted summary

judgment for IDOT on this basis. Viewing the evidence

in the light reasonably most favorable to Miller, a reasonable jury could find that such work was not an essential

function of the job and that Miller was requesting a

reasonable accommodation: after all, he was asking

only that he be allowed to work as he had worked successfully for several years.

We first consider whether there is a genuine dispute of

fact as to whether working above 25 feet in an extreme

position was an essential function of Miller’s job as a

highway maintainer on the bridge crew. We first look to
No. 09-3143 15

the federal regulations, which instruct us to consider

the following categories of evidence:

(i) The employer’s judgment as to which functions

are essential;

(ii) Written job descriptions prepared before advertising or interviewing applicants for the job;

(iii) The amount of time spent on the job performing

the function;

(iv) The consequences of not requiring the incumbent

to perform the function;

(v) The terms of a collective bargaining agreement;

(vi) The work experience of past incumbents in the

job; and/or

(vii) The current work experience of incumbents in

similar jobs.

See 29 C.F.R. § 1630.2(n)(3). Under this standard, the

employer’s judgment is an important factor, but it is not

controlling. Under factors (vi) and (vii), we also look to

evidence of the employer’s actual practices in the workplace.

We are confident that some high work in exposed or

extreme positions is an essential function of the bridge

crew as a whole. IDOT would have us take that point

a step further to find that any individual assigned to the

bridge crew had to be able to perform each and every task

of the entire bridge crew. That would require finding

that every task required of the bridge crew as a whole

was an essential task of each bridge crew member. On
16 No. 09-3143

this record, we cannot make that finding as a matter of

law. Plaintiff has come forward with substantial evidence showing that his bridge crew did not actually

work that way. The bridge crew worked as a team. No

one person was assigned permanently to any one task.

Although individual members of the team did various

tasks as needed, there was no requirement that the

bridge crew members rotate from task to task in an organized, routine fashion, such that it was necessary for

any one member of the bridge crew to be able to do

every task of the bridge crew as a whole.

Miller has presented evidence that, at least prior to

March 23, 2006, the team accommodated the various

skills, abilities, and limitations of the individual team

members by organizing itself according to those skills,

abilities, and limitations. Maurizio could not weld, so the

other members did the welding when it was required.

Another co-worker refused to ride in the snooper bucket,

so those tasks, when needed, went to others. This was

also true of bridge spraying, yard mowing, and debris

raking for a crew member with allergies.

As in other “team” environments, the individual members took on tasks according to their capacities and abilities. Here, a reasonable fact-finder would have to conclude that some members of the bridge crew had to be

able to work at heights in exposed or extreme positions

so that the bridge crew—as a unit—could do its job, just

as some members of the crew had to be able to weld,

ride in the snooper bucket, spray, mow, and rake. That

conclusion does not mean that the fact-finder would be
No. 09-3143 17

required to conclude that each member of the bridge

crew had to be able to do every task required of the

entire team. In terms of the regulation, the evidence of

actual experience of past and present incumbents in the

job and similar jobs conflicts with the employer’s judgment about which functions are essential. See 29 C.F.R.

§ 1630.2(n)(3). On this record, a reasonable jury could

find that working at heights in an exposed or extreme

position was not an essential function for Miller as an

individual member of the bridge crew.

From this same evidence, a reasonable jury could find

that Miller’s request for accommodation—that other

members of his team substitute for him when a task

required working above 25 feet in an exposed or extreme position—was reasonable. The statute provides

that the term “reasonable accommodation” may include “job restructuring, part-time or modified work

schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training

materials or policies, the provision of qualified readers

or interpreters, and other similar accommodations for

individuals with disabilities.” 42 U.S.C. § 12111(9)(B).

The ADA does not give employers unfettered discretion to decide what is reasonable. The law requires an

employer to rethink its preferred practices or established

methods of operation. Employers must, at a minimum,

consider possible modifications of jobs, processes, or

tasks so as to allow an employee with a disability to

work, even where established practices or methods seem
18 No. 09-3143

to be the most efficient or serve otherwise legitimate

purposes in the workplace. See, e.g., Vande Zande v. State

of Wisconsin Dep’t of Administration, 44 F.3d 538, 542 (7th

Cir. 1995) (“It is plain enough what ‘accommodation’

means. The employer must be willing to consider making

changes in its ordinary work rules, facilities, terms, and

conditions in order to enable a disabled individual to

work.”).

When considering other work environments, we have

upheld determinations that requests for a “helper” employee and requests to rotate work tasks were unreasonable. For instance, in Lenker v. Methodist Hospital, 210

F.3d 792 (7th Cir. 2000), a nurse with multiple sclerosis

was unable to lift patients. He requested that he be permitted to use assistive devices or call for help when he

was unable to lift a patient. On review, we upheld the

jury’s verdict in favor of the employer. We found

sufficient evidence in the record from which the jury

could reasonably find (a) that assistive devices might

help to lift a patient out of bed but would not help a

patient walk down the hall or to the bathroom, and (b)

that other staff would not be able to assist at all times,

particularly in a staff shortage or a hospital emergency.

See id. at 796-97.

In another case, we upheld summary judgment

against an equipment operator who suffered a shoulder

injury and was no longer able to lift or carry anything over

fifty pounds. See Peters v. City of Mauston, 311 F.3d 835,

840 (7th Cir. 2002). That employee also requested that

his employer permit another employee to help him with
No. 09-3143 19

the lifting requirements of his job. We found that the

request was unreasonable because lifting and carrying

were essential functions of his job as an equipment operator. Making the accommodation would have required

another person to perform an essential function of the

employee’s job. See id. at 845; see also Miller v. Illinois

Department of Corrections, 107 F.3d 483, 485 (7th Cir. 1997)

(“if an employer has a legitimate reason for specifying

multiple duties for a particular job classification, duties

the occupant of the position is expected to rotate

through, a disabled employee will not be qualified for

the position unless he can perform enough of these duties

to enable a judgment that he can perform its essential

duties”) (emphasis in original); Cochrum v. Old Ben Coal

Co., 102 F.3d 908, 912 (7th Cir. 1996) (holding that employee’s request that employer hire a helper to perform

essential function was unreasonable; “hiring a helper to

perform the overhead work would mean the helper

would de facto perform [the employee’s] job. We cannot

agree that [the employee] would be performing the essential functions of his job with a helper.”).

These cases teach that task reassignments within a job

can be unreasonable in situations where the reassigned

task is an essential function of the job. In those situations,

reassignment or delegation of the task would equate,

essentially, to reassignment or delegation of the job itself.

What sets this case apart from those earlier cases is

Miller’s evidence that it was in fact the normal course

for individual members of the bridge crew to substitute

and reassign tasks among themselves according to indi-
20 No. 09-3143

We recognize that if most or all members of a bridge crew

2

had acrophobia like Miller’s, the crew could not perform all

of its essential duties. If and when such an extreme case might

arise, we are confident that the law would accommodate

an employer’s need to get its work done. In this case, how-

(continued...)

vidual abilities, preferences, and limitations. Miller’s request for reasonable accommodation did not ask IDOT to

do anything it was not already doing (or, at least, anything

it had not been doing up until March 2006). The record on

summary judgment, taken in the light reasonably most

favorable to Miller, does not compel a finding that

IDOT required every employee working as a highway

maintainer on a bridge crew to be able to work in an

exposed or extreme position above 25 feet in the air or

that being able to do so was an essential function of the

job. To the contrary, the record confirms that it was a

regular occurrence for individuals on the bridge team

to share and swap tasks according to their individual

capacities, abilities, and limitations. Miller’s request that

task assignments be adjusted among the bridge crew

members so that he would not be confronted with a task

requiring him to work above 25 feet in an exposed or

extreme position did not amount to a request that

another member of the team perform an essential, nondelegable task. A jury should be permitted to consider

Miller’s actual work environment and IDOT’s past flexibility in delegating tasks amongst the bridge team members in deciding whether Miller’s request for accommodation was reasonable.2
No. 09-3143 21

(...continued) 2

ever, the evidence showing that plaintiff had actually been

accommodated as he requested shows that the employer is

not entitled to summary judgment on this theory.

C. Retaliation

The district court also granted summary judgment for

IDOT on Miller’s ADA retaliation claim. To avoid summary judgment on his retaliation claim, Miller must

offer evidence that he engaged in protected activity, that

he was performing his job satisfactorily, and that he was

singled out for an adverse employment action that similarly situated employees who did not engage in protected activity did not suffer. See Squibb v. Memorial

Medical Center, 497 F.3d 775, 788 (7th Cir. 2007); Stone v.

City of Indianapolis Public Utilities Div., 281 F.3d 640, 644

(7th Cir. 2002). The district court found that Miller

failed to demonstrate that IDOT’s stated reason for firing

him—the alleged threat against Ritter when he returned

to work—was pretextual. Here, too, we reverse.

In reviewing the evidence, we cannot second-guess

IDOT’s employment decisions to the extent that they

were innocently unwise or unfair. But Miller has

presented sufficient evidence from which a finder of fact

could genuinely call into question IDOT’s honesty. First,

a reasonable jury could find that Miller’s statement

about Ritter was not a “threat” at all, or that even if

IDOT properly construed it as such, its decision to terminate Miller was a disingenuous overreaction to justify

dismissal of an annoying employee who asserted his

rights under the ADA. Miller presented evidence that
22 No. 09-3143

At oral argument, defense counsel suggested that IDOT’s 3

management had not known of Maurizio’s violent outburst, so

that its failure to take action against Maurizio cannot be evidence of pretext. However, that issue was not raised before

the district court on summary judgment and is not otherwise

reflected in the record. On remand, the parties will have

the opportunity to present evidence on that point.

5-10-11

Maurizio himself had had a genuinely violent workplace

outburst but was not terminated, and yet Miller was

terminated for a much milder comment on his first day

back at work. Also, Ritter’s comment to Miller that 3

“we don’t grant requests” could be construed by a reasonable jury as showing a general hostility to requests

for accommodation under the ADA. There is more here

than “mere temporal proximity.” Cf. Stone, 281 F.3d at

644) (noting that “mere temporal proximity between

the protected conduct and the allegedly retaliatory act

“will rarely be sufficient in and of itself to create a triable

issue”). The combination of the ambiguity of the asserted

threat, the response to Maurizio’s violent outburst, the

hostility toward Miller’s request for accommodation,

and the timing provided sufficient evidence to permit a

reasonable trier of fact to infer pretext and retaliatory

intent. The question must be decided at trial rather than

on summary judgment.

REVERSED AND REMANDED.