### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 17

‐ 3159

E RIC K OTY

, Plaintiff

‐ Appellant

,

v.

D U P AGE C OUNTY

, I LLINOIS

, Defendant

‐ Appellee

.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division

No. 15

‐ cv

‐ 02600

— Virginia M. Kendall

, Judge

.

____________________

A RGUED J UNE 1, 2018

— D ECIDED A UGUST 16, 2018

____________________

Before R IPPLE

, K ANNE

, and B RENNAN

, Circuit Judges

.

K ANNE

, Circuit Judge

. Eric Koty, a deputy in the DuPage

County Sheriff’s Department, requested a different model of

squad car. Notes from Koty’s physician indicated Koty

should be given a squad car with more legroom, “like an

SUV,” to accommodate a hip condition. The Department de

‐

nied Koty’s requests. Koty then submitted EEOC complaints

alleging the Department had discriminated against him in vi

‐

olation of the Americans with Disabilities Act (“ADA”).2 No. 17

‐ 3159

Shortly thereafter, the Department reassigned Koty to court

‐

house duty, for which he would not need to drive a squad car.

Koty then sued DuPage County alleging that the Department

violated the ADA when it denied his request for an SUV and

that the Department wrongfully retaliated against him for

making the EEOC complaint. The district court found no such

violations and granted summary judgment for the County.

For the reasons that follow, we affirm.

I. B ACKGROUND

Koty first requested an SUV in January 2014, and then

against the next month. This second request was accompa

‐

nied by a letter from Koty’s physician stating that, “if availa

‐

ble

... a squad car with more legroom, like an SUV, would be

preferable.”(R. 58

‐ 7 at 2.) In response, employees of the Sher

‐

iff’s Department measured the legroom in Koty’s current

squad car, a Crown Victoria, and in an SUV owned by the De

‐

partment. The Department determined the SUV offered no

additional legroom (though Koty contends the wrong meas

‐

urements were considered) and denied Koty’s requests.

On April 7, Koty submitted another letter from his physi

‐

cian that explained that “a squad car with more legroom, like

an SUV, [was] necessary” to alleviate Koty’s hip pain. (R. 58

‐

6 at 2.) The letter further stated that Koty was otherwise en

‐ tirely capable of fulfilling his job requirements. ( Id. ) The re

‐

quest and letter were accompanied by an EEOC complaint al

‐ leging discrimination under the ADA. The following day, the

Department reassigned Koty to courthouse duty, which re

‐ quired no time in a squad car.

While on courthouse duty, Koty was temporarily taken off

active special operations duty. During this time, he missed aNo. 17

‐ 3159 3

few training exercises, but no special operations missions. He

was also asked to submit a plan for securing his weapons in

his personal vehicle before returning to active duty.

Eventually, Koty had hip surgery. After the operation, he

returned to courthouse duty. He applied for and was granted

a transfer back to the law enforcement unit, where he was in

‐ itially assigned to the midnight shift, then to his original day

‐

time shift.

Koty sued, alleging the Department failed to provide rea

‐

sonable accommodations pursuant to the ADA. He also al

‐ leged the Department retaliated against him for filing the

EEOC complaint. The district court dismissed the accommo

‐

dation claim after finding Koty did not qualify as “disabled”

under the ADA. The district court then granted summary

judgment for the county on Koty’s retaliation claim, conclud

‐ ing the Department had taken no adverse employment ac

‐

tions against Koty.

II. A NALYSIS

Koty appeals the judgment of the district court as to both

claims. We review de novo the district court’s dismissal of a

claim pursuant to F ED

. R. C IV

. P. 12(b)(6) and the district

court’s grant of summary judgment

. Williams v. Seniff, 342

F.3d 774, 781 (7th Cir. 2003).

A. The district court did not err when it dismissed Koty’s ac

‐

commodation claim.

To bring a claim under the ADA, the plaintiff must allege

that they are disabled. Gogos v. AMS Mech. Sys., Inc.

, 737 F.3d

1170, 1172 (7th Cir. 2013). The Act defines a “disability” as “a

physical or mental impairment that substantially limits one or

more major life activities of [an] individual,” “a record of such4 No. 17

‐ 3159

an impairment,” or “being regarded as having such an im

‐ pairment.” 42 U.S.C. § 12102(1). Koty’s complaint states that

he had a “femoral hip impingement with torn labrum among

other medical disability” and that “[t]he pain is aggravated by

[a]ssigned [v]ehicle,” but contains no allegation that the in

‐ jury affected any major life activity. (R. 1 at 2.)

While the inability to drive has been found in some cases

to affect a major life activity, see Winsley v. Cook County, 563

F.3d 598, 604 (7th Cir. 2009), all Koty alleges here is that he is

unable to drive one model of vehicle. This is not a disability

as defined in the Act. Because Koty failed to allege he had a

disability, the district court was correct to dismiss his accom

‐

modation claim.

B. The district court did not err when it granted summary

judgment in favor of the County on Koty’s retaliation claim.

Perhaps knowing that his accommodation claim was

doomed, Koty has focused on appeal on the grant of summary

judgment for the County on his retaliation claim. Summary

judgment is appropriate where “there is no genuine dispute

as to any material fact and the movant is entitled to judgment

as a matter of law.” Fed. R. Civ. P. 56(a).

“ Employers are forbidden from retaliating against em

‐ ployees who raise ADA claims regardless of whether the ini

‐

tial claims of discrimination are meritless.” Dickerson v. Bd. of

Trs. of Cmty. Coll. Dist. No. 522, 657 F.3d 595, 601 (7th Cir.

2011). To prove a retaliation claim, a plaintiff must prove “(1)

he engaged in a statutorily protected activity; (2) he suffered

an adverse action; and (3) a causal connection between the

two.” Id. If this initial burden is satisfied, “the burden then

shifts to the defendant to present a non

‐ invidious reason forNo. 17

‐ 3159 5

the adverse employment action.” Id. at 602. “If the defendant

meets this burden, the plaintiff must then demonstrate that

the defendant’s proffered reason was pretextual.” Id. “[P]re

‐

text ‘involves more than just faulty reasoning or mistaken

judgment on the part of the employer; it is [a] lie, specifically

a phony reason for some action.’” Burton v. Bd. of Regents, 851

F.3d 690, 698 (7th Cir. 2017) (quoting Harden v. Marion Cty.

Sheriff’s Dept.

, 799 F.3d 857, 864 (7th Cir. 2015)).

Here, there is no dispute that submitting an EEOC charge

is a statutorily protected activity. The parties do dispute, how

‐

ever, whether the actions taken were materially adverse or

were mere pretext for retaliation. An action is materially ad

‐

verse if “a reasonable employee

... would be dissuaded from

engaging in the protected activity.” Roney v. Ill. Dep’t of Trans.,

474 F.3d 455, 461 (7th Cir. 2007). What is considered adverse

depends on the circumstances of each case, Burlington North

‐

ern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 69 (2006), but ex

‐ amples include “termination of employment, a demotion ev

‐

idenced by a decrease in wage or salary, a less distinguished

title, a material loss of benefits, [and] significantly diminished

material responsibilities.” Barton v. Zimmer, Inc., 662 F.3d 448,

456 (7th Cir. 2011) (quoting Crady v. Liberty Nat’l Bank & Trust

Co. of Ind., 993 F.2d 132, 136 (7th Cir. 1993)). Koty alleges that

several acts by the Department were taken to retaliate against

him for filing the EEOC complaint, and that the Department’s

proffered reasons for taking these actions are mere pretext for

discrimination.

First, Koty alleges the County retaliated against him when

it transferred him from law enforcement to courthouse duty.

Typically, lateral moves are not considered adverse employ

‐

ment actions. See Stephans v. Erickson

, 569 F.3d 779, 790–91 (7th6 No. 17

‐ 3159

Cir. 2009); Washington v. Ill. Dept. of Revenue

, 420 F.3d 658, 661

(7th Cir. 2005). “Our decisions involving a transfer or reas

‐ signment of job responsibilities indicate that such an action is

not materially adverse unless it represents a significant altera

‐

tion to the employee ʹ s duties, which is often reflected by a cor

‐ responding change in work hours, compensation, or career

prospects.” Stephans

, 569 F.3d at 791. Reassignments to less

prestigious positions have also been considered adverse. See

e.g. Burlington Northern & Santa Fe Ry. Co.

, 548 U.S. at 71.

The transfer here did not result in a pay decrease, other

than Koty’s diminished opportunity for overtime pay. Koty

did offer some evidence that courthouse duty is considered

less prestigious—two officers testified that being assigned

courthouse duty was considered punishment. However, Koty

conceded he knew a transfer to courthouse duty was a poten

‐

tial way for the Department to accommodate his hip pain, an

accommodation he requested. “It is the employer’s preroga

‐

tive to choose a reasonable accommodation,” Jay v. Internet

Wagner, Inc., 233 F.3d 1014, 1017 (7th 2000), and the Depart

‐

ment’s decision to accommodate Koty’s request in a way

other than what he requested was not an adverse employ

‐

ment action. See Hancock v. Potter

, 531 F.3d 474, 478–79 (7th

Cir. 2008) (concluding actions taken by the employer to try to

accommodate the employee’s work restrictions were not ad

‐

verse). Furthermore, Koty cannot show the Department’s ex

‐ planation that the transfer was made to accommodate his pain

was pretext for retaliation. See Serino v. Potter

, 178 Fed. Appx.

552, 556 (7th Cir. 2006) (concluding a transfer made to accom

‐

modate the employee’s needs, even if considered adverse,

was not discriminatory).No. 17

‐ 3159 7

Second, Koty alleges the County retaliated against him

when it temporarily removed him from active special opera

‐

tions duty. In a letter, the chief of the Department explained

that Koty was placed on inactive status because he was trans

‐

ferred to courthouse duty. As a condition of his return to ac

‐

tive status, Koty was required to submit a plan for safely stor

‐ ing his weapons in his personal vehicle while at the court

‐

house. Koty contends no one else was required to submit such

a plan.

Like the district court, we fail to see how the temporary

move to inactive status and requirement to submit a plan con

‐

stitute an adverse employment action. Even as an active mem

‐

ber, Koty only participated in special operations assignments

occasionally. While on inactive status, his pay was not dimin

‐

ished and he missed only a few training exercises. Koty failed

to present evidence that the temporary move to inactive sta

‐

tus would cause him any career setbacks. Instead, all of the

evidence in the record supports the County’s explanation that

the move to inactive status and plan requirement were logical

effects of the reassignment to courthouse duty, not pretext for

retaliation.

Third, Koty alleges the County retaliated against him

when it required him to return to courthouse duty following

his medical leave. But the County explained that Department

policy requires all employees to return to the duty they were

performing before they left when they return from leave. Koty

offered no evidence that this explanation is pretextual.

Finally, Koty claims the County retaliated against him

when it assigned him to the midnight shift after he requested

and was granted a transfer back to law enforcement duty.

Changing an employee’s shift is generally not considered a8 No. 17

‐ 3159

materially adverse employment action unless the change re

‐

sults in a change in pay or prestige or is particularly harmful

to that employee. See Burlington Northern and Santa Fe Ry. Co.,

548 U.S. at 69 (citing Washington

, 420 F.3d at 662–63). While

the midnight shift may have been less desirable than Koty’s

original daytime shift, he offered no evidence that the change

affected his pay or prestige or that there was some unique cir

‐

cumstance in his case.

In sum, Koty provided no evidence that any of these ac

‐

tions, taken alone or cumulatively, were the type that would

dissuade an employee from exercising his rights. And even if

one was convinced the County took some adverse action,

Koty could not show that the County’s explanation—that all

these actions were the logical effects of accommodating

Koty’s hip pain caused by driving his squad car—was pretext.

So, the district court did not err in granting summary judg

‐

ment for the County on this claim.

III. C ONCLUSION

For these reasons, we AFFIRM the judgment of the district

court.