In the

United States Court of Appeals

For the Seventh Circuit

No. 07-2449

PAUL D. TURNER,

Plaintiff-Appellant,

v.

THE SALOON, LTD., CHERYL GILBERG,

WILLIAM BRONNER, and MARK BRAVER,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 05 C 4595—Milton I. Shadur, Judge.

ARGUED JANUARY 9, 2009—DECIDED FEBRUARY 8, 2010

Before MANION, ROVNER, and SYKES, Circuit Judges.

SYKES, Circuit Judge. Paul Turner worked as a waiter

for The Saloon, Ltd. (“The Saloon”), a Chicago steakhouse, and claims he was the victim of several forms of

employment discrimination. Turner had a months-long

sexual relationship with his supervisor and claims that

when he ended it, she persistently sexually harassed him.

He also claims The Saloon discriminated against him
2 No. 07-2449

on the basis of a disability; he suffers from psoriasis

and says that the restaurant failed to accommodate his

condition. Turner complained to restaurant management

about the sexual harassment and filed an EEOC charge

about the disability discrimination. He was later fired

for leaving the restaurant in the middle of his shift.

Turner then sued The Saloon and several of its managers

alleging discrimination and retaliation claims under

Title VII of the Civil Rights Act of 1964 (“Title VII”) and

the Americans with Disabilities Act (“ADA”). Turner

also alleged that The Saloon owed him unpaid overtime

under the Fair Labor Standards Act (“FLSA”) and Illinois’

Wage Payment and Collection Act (“Wage Payment Act”).

The district court granted summary judgment for the

defendants, and Turner appealed.

We affirm in part and reverse in part. The district court

properly rejected Turner’s claims, with one exception. The

district court dismissed the hostile-workplace claim

after excluding most of the alleged instances of harassment as time-barred. This was contrary to the Supreme

Court’s decision in National Railroad Passenger Corp. v.

Morgan, 536 U.S. 101, 120 (2002), which held that in a

hostile-workplace claim, acts of harassment falling

outside Title VII’s statute of limitations may be considered as long as some act of harassment occurred within

the limitations period. When all of the supervisor’s

alleged acts of harassment are considered, Turner has

raised a material issue of fact regarding whether his

work environment was objectively and subjectively

hostile. But Turner is not necessarily entitled to a trial;
No. 07-2449 3

he must also establish a basis for The Saloon to be liable. We remand for the district court’s consideration of

that issue and any further proceedings that may be required on Turner’s hostile-workplace claim.

I. Background

Paul Turner worked as a waiter at The Saloon from 1999

to 2004, but the events underlying his employment-discrimination claims occurred between 2002 and 2004.

During this period, William Bronner was The Saloon’s

“owner’s representative,” and in that capacity was responsible for creating and developing the restaurant’s

operating procedures and reporting directly to its

owners, Sidney and Cheryl Gilberg. Mark Braver was

The Saloon’s general manager; he reported to Bronner

and oversaw the restaurant’s day-to-day operations.

Denise “Dixie” Lake and Bret Dresnik were assistant

managers, and they reported directly to Braver. Braver,

Lake, and Dresnik supervised the remaining staff,

which included Turner.

Turner’s employment history at The Saloon was mixed.

He was one of the restaurant’s highest grossing waiters,

and many regular customers would specifically request

him to serve their tables. On the other hand, Turner’s

personnel file was littered with citations, which seemed

to accumulate at a faster rate in 2004.

In 2002 Turner began a sexual relationship with Denise

Lake, one of his supervisors. It lasted for about nine

months, and Turner claims to have ended it in November
4 No. 07-2449

Lake admits to a sexual relationship but generally denies 1

the rest of Turner’s assertions. Because we review the case on

The Saloon’s motion for summary judgment, we offer the

version of the facts most favorable to Turner.

of 2002.1 Turner contends that Lake retaliated against him

for ending their relationship by altering his table assignments, writing him up for unwarranted discipline,

and sexually harassing him. He describes at least

five specific instances of overt sexual harassment. In

June 2003 a customer spilled champagne on Turner’s

pants, and when he went to the bar area to find towels

to dry himself off, Lake followed him there. She put

her hands inside his pockets, grabbed his penis, and

said, “You sure are soaked.” In July 2003 Lake pressed

her chest against him and asked, “Don’t you miss me?”

On New Year’s Eve in 2003, Lake asked Turner to

kiss her. In January 2004 Lake approached Turner

from behind and grabbed his buttocks. Finally, in

August 2004 Lake saw Turner with his clothes off while

he was changing into his work uniform and told him

that she missed seeing him naked.

Turner says Lake’s advances were unwanted and he

tried to get her to stop, but his protests only prompted

her to retaliate against him. She reprimanded him in

front of other employees, singled him out for undeserved

disciplinary write-ups, and assigned him to less profitable

tables.

In July 2003, after the second incident of harassment,

Turner approached Braver to complain about Lake’s
No. 07-2449 5

Braver acknowledges this meeting but says that Turner asked 2

him not to report Lake’s conduct to Bronner or otherwise

launch a formal investigation; he says Turner was only interested in having Lake’s harassment stop. Turner denies

Braver’s characterizations.

conduct. Turner claims Braver discouraged his complaints and took no remedial action. In the spring of 2

2004, Turner spoke to Bronner about Lake’s harassment

and was told that The Saloon would investigate it.

Bronner and Braver testified in their depositions that

they met with Lake and told her that The Saloon

would not tolerate any type of sexual harassment.

Turner contends this response was insufficient.

Turner also ran into difficulty with restaurant management over his use of the employee common area to

change into his work uniform. Turner has psoriasis, a

skin condition that affects his genital area, elbows, and

knees. He claims that wearing underwear increases his

groin sweating, which exacerbates his psoriasis-related

irritation. So he does not wear underwear. As a consequence, Turner frequently exposed himself when

changing into his work uniform in the employee

common area. During the latter half of 2004, a female

employee complained about Turner’s indecent exposures. Braver instituted a new policy that any employee

who exposes himself while changing must change in a

restroom.

Turner thought the men’s bathroom was vile and

claimed this new policy uniquely targeted him. On
6 No. 07-2449

Braver disputes the timing of these events. Again, for pur- 3

poses of this appeal, we accept Turner’s version.

October 4, 2004, he filed a charge with the Illinois Department of Human Rights alleging that The Saloon discriminated against him because of his psoriasis. At the same

time, Turner tried to work with Braver to reach some

compromise. He proposed that The Saloon install a

curtain in the common area, creating a private area for

him to change. Braver said he would take this idea up

with Bronner, but he later simply rejected the proposal.

Turner next suggested that he be permitted to change in

a basement room that had no door. Braver said he

would think about it. Without waiting for Braver’s permission, Turner started using the basement room as a

changing area. On October 7 Braver caught Turner

naked while changing in the basement room. He issued

Turner a written warning and suspended him for a week.

When Turner returned from his suspension, Braver

told him he could change in the restroom of a hotel that

was located in the same building as The Saloon; Turner

rejected this suggestion. On October 20, 2004, Turner 3

filed another charge of disability-related discrimination,

this time with the EEOC.

On December 15, 2004, in the middle of his shift, Turner

left the restaurant without notifying his supervisors and

ran an errand at his bank. No other waiter was on duty

at the time, and customers came in while Turner was

absent. When Turner returned, Braver fired him. Turner

later claimed he had obtained the hostess’s approval to
No. 07-2449 7

We will refer to the defendants collectively as “The Saloon.” 4

leave. He also contended his dismissal was really motivated by his allegations of sex- and disability-related

harassment, not his unexcused absence. Braver says

he discharged Turner based on his disciplinary record

and for leaving the restaurant without permission in

the middle of his shift.

Turner sued The Saloon and several of its managers

alleging employment discrimination because of his sex

and disability in violation of Title VII and the ADA.4

He also asserted retaliation claims alleging he was dismissed for complaining about The Saloon’s sex and

disability discrimination. Finally, he alleged a claim

for unpaid overtime under the FLSA and the state

Wage Payment Act. The Saloon moved for summary

judgment, and Turner filed a cross-motion asking the

court to preclude The Saloon from asserting affirmative

defenses to the sexual-harassment count. The district

court granted The Saloon’s motion on all counts and

denied Turner’s motion as moot. This appeal followed.

II. Discussion

We review the district court’s grant of summary judgment de novo. Chaklos v. Stevens, 560 F.3d 705, 710 (7th

Cir. 2009). Summary judgment is appropriate “if the

pleadings, the discovery and disclosure materials on

file, and any affidavits show that there is no genuine

issue as to any material fact and that the movant is
8 No. 07-2449

entitled to judgment as a matter of law.” FED. R. CIV. P.

56(c). We construe all facts and reasonable inferences in

the light most favorable to Turner, the nonmoving party.

See Mobley v. Allstate Ins. Co., 531 F.3d 539, 545 (7th Cir.

2008).

A. Title VII Sexual-Harassment Claim

We begin with Turner’s claim that The Saloon is liable

for Lake’s sexual harassment. Title VII broadly prohibits an employer from “discriminat[ing] against any

individual with respect to his compensation, terms,

conditions, or privileges of employment, because of

such individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1). Title

VII generally covers two types of employment discrimination: so-called discrete acts of discrimination, such

as “termination, failure to promote, denial of transfer, or

refusal to hire,” Morgan, 536 U.S. at 114, and acts that

create a hostile workplace, which “are different in kind

from discrete acts,” id. at 115, and do not require tangible

adverse employment actions, see Meritor Sav. Bank v.

Vinson, 477 U.S. 57, 66-68 (1986); Lapka v. Chertoff, 517

F.3d 974, 982 (7th Cir. 2008).

Turner asserted a hostile-workplace claim based on

Lake’s alleged sexual harassment. This theory requires

Turner to establish that: (1) he was subjected to

unwelcome sexual conduct, advances, or requests;

(2) because of his sex; (3) the acts were severe or pervasive

enough to create a hostile work environment; and

(4) there is a basis for employer liability. Lapka, 517 F.3d

at 982. The Saloon does not contest the first or second
No. 07-2449 9

The district court might have incorrectly settled on the 300- 5

day limitations period rather than the 180-day limitations

period. By the statute’s own terms, the 180-day period applies

except if the plaintiff initially instituted proceedings with a

State or local agency. 42 U.S.C. § 2000e-5(e)(1). The record

suggests that Turner did not file any sexual-harassment charge

with an Illinois agency. In any event, this potential error does

not affect our analysis. Lake allegedly told Turner that she

(continued...)

elements of this claim. It argues instead that most of

the alleged acts of sexual harassment are time-barred

and that the remaining acts are not severe or pervasive

enough to create a hostile work environment.

The district court agreed that most of Lake’s alleged acts

of sexual harassment were time-barred under Title VII’s

statute of limitations, 42 U.S.C. § 2000e-5(e)(1). That

section provides that an EEOC charge must be filed

within one hundred and eighty days after the alleged

unlawful employment practice occurred . . . , except

that [if] . . . the person aggrieved has initially

instituted proceedings with a State or local agency

with authority to grant or seek relief from such practice . . . , such charge shall be filed . . . within three

hundred days after the alleged unlawful employment

practice occurred.

Id. The district court read the statute and our cases to

prohibit it from considering any of Lake’s discrete acts of

discriminatory conduct that occurred prior to 300 days

from Turner’s EEOC filing. This decision excluded all 5
10 No. 07-2449

(...continued) 5

missed seeing him naked in August 2004, which falls

within both a 300-day and 180-day window from January 18,

2005, the date of Turner’s EEOC filing.

but Lake’s August 2004 comment that she missed seeing

Turner naked, which the court held was not sufficiently

severe or pervasive to constitute unlawful discrimination.

The district court’s approach to the statute of limitations conflicts with the Supreme Court’s decision in

Morgan. There, the Court held that the statute of limitations applies differently depending on whether the

plaintiff is asserting a claim for a discrete act of employment discrimination or for a hostile work environment.

For the former category of claim, “the statute [of limitations] precludes recovery for discrete acts . . . that occur

outside the statutory time period.” 536 U.S. at 105. For

the latter category, however, “consideration of the entire

scope of a hostile work environment claim, including

behavior alleged outside the statutory time period, is

permissible for the purposes of assessing liability, so long

as an act contributing to that hostile environment takes

place within the statutory time period.” Id. Thus, under

Morgan, an employee claiming a hostile work environment “may file the charge (under Title VII) . . . within

the statutory time from the last hostile act.” Pruitt v. City

of Chicago, 472 F.3d 925, 927 (7th Cir. 2006).

The district court misapplied Morgan. The court referred

to Lake’s acts of sexual harassment as “discrete acts of

discriminatory conduct,” but Turner’s sexual-harassment

claim rests on a hostile-workplace theory, as is typical of
No. 07-2449 11

We note that The Saloon does not argue that Lake’s sexual 6

harassment stopped once Bronner and Braver met with her.

We assume that Lake’s actions, including her August 2004

comment, were part of the same course of conduct.

Title VII cases presenting similar allegations of inappropriate touching. See, e.g., Kampmier v. Emeritus Corp., 472

F.3d 930, 941-42 (7th Cir. 2007); Patton v. Keystone RV

Co., 455 F.3d 812, 814 (7th Cir. 2006); Valentine v. City of

Chicago, 452 F.3d 670, 682 (7th Cir. 2006); Worth v. Tyer, 276

F.3d 249, 268 (7th Cir. 2001); Hostetler v. Quality Dining, Inc.,

218 F.3d 798, 806-08 (7th Cir. 2000); Baskerville v. Culligan

Int’l Co., 50 F.3d 428, 430-31 (7th Cir. 1995); Saxton v. Am.

Tel. & Tel. Co., 10 F.3d 526, 534 (7th Cir. 1993). Under

Morgan, then, the district court should have asked

whether any of Lake’s alleged acts of sexual harassment

occurred within the statutory time period; it is undisputed that her August 2004 suggestive comment fell

within that window. As such, the court should have 6

analyzed whether all of Lake’s conduct, taken as a

whole, created an actionable hostile work environment.

The answer to that question turns on whether Lake’s

alleged harassment was “severe or pervasive enough to

create a hostile work environment.” Lapka, 517 F.3d at 982.

“Whether the harassment rises to this level turns on a

constellation of factors that include ‘the frequency of the

discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive

utterance; and whether it unreasonably interferes with

an employee’s work performance.’ ” Hostetler, 218 F.3d
12 No. 07-2449

at 806-07 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23

(1993)). Further, a claim for a hostile work environment

must be tested both objectively and subjectively. Id. at

807. That is, the plaintiff must subjectively believe that

the harassment was sufficiently severe or pervasive to

have altered the working environment, and the harassment must also be sufficiently severe or pervasive, from

the standpoint of a reasonable person, to create a hostile

work environment.

For summary-judgment purposes, the subjective element is rather easily established in this case. Turner

claims that he told Lake to stop her unwanted sexual

advances. It is undisputed that Turner complained to

Braver and to Bronner on different occasions about

Lake’s behavior. Turner’s complaints prompted Bronner

to meet with Lake and explain that the restaurant did not

tolerate any sexual harassment of employees. At the

very least, Turner has created a genuine issue of material

fact on the subjective element of the claim. See Valentine,

452 F.3d at 682; Worth, 276 F.3d at 267; Hostetler, 218 F.3d

at 807.

We also think the evidence is sufficient to create a

genuine issue of fact on the question whether Lake’s

advances were objectively hostile. We have acknowledged before that “[d]rawing the line” between what is

and is not objectively hostile “is not always easy.” Baskerville, 50 F.3d at 430. 

On one side lie sexual assaults; other physical contact,

whether amorous or hostile, for which there is no

consent express or implied; uninvited sexual solicita-
No. 07-2449 13

tions; intimidating words or acts; obscene language

or gestures; pornographic pictures. On the other side

lies the occasional vulgar banter, tinged with sexual

innuendo, of coarse or boorish workers.

Id. (citations omitted). Perhaps the most heavily emphasized factor in our cases is whether there was inappropriate touching. See Worth, 276 F.3d at 268 (“The fact

that conduct . . . involves touching as opposed to verbal

behavior increases the severity of the situation.”). This is

especially true when the touching is of “an intimate body

part.” Id. (“We have previously recognized that direct

contact with an intimate body part constitutes one of the

most severe forms of sexual harassment.”). For example,

we have affirmed a damages award or at least rejected

summary judgment where there were allegations that a

defendant placed his hand on the plaintiff’s breast for

several seconds, id., when a co-worker forcibly kissed the

plaintiff and nearly removed her brassiere, Hostetler, 218

F.3d at 807-08, when a manager slid his hand up the

plaintiff’s shorts, reaching her underwear, Patton,

455 F.3d at 814, and when the plaintiff’s supervisor

“hugged her fifty to sixty times, jumped in her lap ten

times, [and] touched her buttocks thirty times,” Kampmier,

472 F.3d at 941. Indeed, in cases where we have held

that the evidence was insufficient to establish an objectively hostile work environment, we have emphasized

that no touching occurred, e.g., Baskerville, 50 F.3d at 431

(immediately after offering factors to consider, noting the

“[supervisor] never touched the plaintiff”), or that the

touching was “relatively limited,” Saxton, 10 F.3d at 534.
14 No. 07-2449

Judged against these cases, Turner’s complaints are

sufficient to survive summary judgment. Turner has

identified at least five instances of explicit sexual harassment, three of which were aggressively physical. Turner’s

claim that Lake grabbed his penis through his pockets

is probably severe enough on its own to create a

genuine issue of material fact. See Jackson v. County of

Racine, 474 F.3d 493, 499 (7th Cir. 2007) (“It is important

to recall that harassing conduct does not need to be both

severe and pervasive. One instance of conduct that is

sufficiently severe may be enough.” (citation omitted)). In

addition, Turner also testified that Lake pressed her

chest against him while making a sexually suggestive

comment on one occasion and grabbed his buttocks on

another occasion. She also made suggestive comments

when watching Turner change into his uniform. Finally,

Turner claims that Lake punished him for refusing her

sexual advances by assigning him to less profitable

tables and by reprimanding him in front of other employees. These allegations, taken together, create a

genuine issue of material fact on Turner’s hostile-workplace claim.

Two features of this case make it unusual but do not

affect our result. First, the plaintiff is a male and his

supervisor is a female; almost all of our cases involving

sexual harassment have the sexes reversed. Nevertheless,

“[t]he law is well settled that sexual harassment of an

employee by a supervisor is not confined to instances

involving male supervisors and female subordinates; it

can occur in the female supervisor-male subordinate

context.” Casiano v. AT&T Corp., 213 F.3d 278, 285 (5th Cir.
No. 07-2449 15

2000). Like the Fifth Circuit, we find it helpful to “hypothetically transpose the sexes of the parties in this case.”

Id. If Lake were male and Turner female, and the allegations were similar, there would be no doubt that the

case would survive summary judgment. The same conclusion follows here.

Second, Turner and Lake had a nine-month consensual

sexual relationship prior to the alleged sexual harassment. We have said in the past that “whether [the

victim] had dated [the harasser] prior to the events in

question [is] by no means dispositive of” the sexualharassment claim. Ammons-Lewis v. Metro. Water Reclamation Dist. of Greater Chi., 488 F.3d 739, 746 (7th Cir. 2007);

accord Johnson v. West, 218 F.3d 725, 729-30 (7th Cir. 2000).

To be sure, “the existence of a current or former social

relationship between the harasser and the harassee can

shed light on such relevant questions as whether the

complained-of conduct was unwelcome, whether it

resulted in a workplace that the harassee subjectively

experienced as hostile, and whether it occurred because

of the harassee’s sex.” Ammons-Lewis, 488 F.3d at 746-47.

But at this stage, all Turner must do is provide enough

evidence for a reasonable jury to conclude that his workplace was both subjectively and objectively hostile. As we

have explained, we think Turner has reached this mark.

The next question is whether “there is a basis for employer liability.” Lapka, 517 F.3d at 982 (quotation omitted). The district court did not reach this issue, having

excluded most of the alleged acts of harassment and

concluded that the one that remained was insufficient to
16 No. 07-2449

establish a hostile workplace. Because Lake was Turner’s

immediate supervisor, The Saloon’s liability may turn on

its ability to assert affirmative defenses under Burlington

Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), and Faragher

v. City of Boca Raton, 524 U.S. 775 (1998). These are

matters for the district court to consider in the first instance, and the court remains free on remand to consider whether The Saloon may be entitled to summary

judgment in its favor on alternative grounds.

B. Title VII Retaliation Claim

Turner next argues that The Saloon fired him in retaliation for complaining about Lake’s sexual harassment. Title

VII generally prohibits an employer from retaliating

against an employee for conduct that is protected under

the Act. 42 U.S.C. § 2000e-3(a). Under the direct method

of proof, Turner must “present evidence of (1) a statutorily

protected activity; (2) a materially adverse action taken

by the employer; and (3) a causal connection between the

two.” Amrhein v. Health Care Serv. Corp., 546 F.3d 854, 858

(7th Cir. 2008). He easily satisfies the first two elements:

He complained to The Saloon’s management about Lake’s

alleged sexual harassment and was later fired. Turner’s

success thus hinges on whether he can establish a

causal connection between the two.

Turner maintains there is a sufficient temporal connection between the two events for a reasonable jury to infer

causation. We disagree. We have repeatedly held that

suspicious “timing alone is insufficient to establish a

genuine issue of material fact to support a retaliation
No. 07-2449 17

claim.” Kampmier, 472 F.3d at 939; see also Argyropoulos

v. City of Alton, 539 F.3d 724, 734 (7th Cir. 2008) (sevenweek interval does not preclude summary judgment).

Here, there is more than half a year separating Turner’s

complaints to Bronner and his eventual dismissal—far

too long to withstand summary judgment.

Turner suggests that a March 2004 employee evaluation in which Braver gave him a positive review is

evidence of a causal connection between his complaint

and his termination. The fact that Braver gave Turner

a positive evaluation months after Turner initially complained to Braver strongly suggests the opposite—that

Braver’s December 2004 decision to fire Turner was not

motivated by his complaints. Turner’s argument also

fails to account for the fact that from March 2004 until

his termination, he received at least ten reprimands

from management for, among other things, “strong—

arm[ing]” an employee, failing to work with busboys,

insubordination to Braver, having a “meltdown” in the

kitchen, failing to attend to customers, and failing to

show up for work as scheduled. In addition, he

received a week-long suspension for exposing himself

while changing in the basement of the restaurant. Faced

with this string of discipline, and with the ten-month

gap separating his complaint about Lake’s sexual harassment from his termination, no rational jury could conclude that there was a causal connection between

Turner’s statutorily protected conduct and his termination.

Turner also attempts to lessen the force of his

unexcused absence in the middle of his shift by claiming
18 No. 07-2449

that he had obtained permission to leave from the

hostess, whom he calls a “pseudomanager.” Even if we

assume that he received such permission and that the

hostess had the authority to grant The Saloon’s only onduty waiter permission to run errands during business

hours—both points of contention—the record suggests

that Braver did not know about Turner’s claim of permission. According to both Turner’s and Braver’s depositions, when Turner returned from his bank errand, Braver

called him into his office and fired him for being absent

without leave while customers awaited service. Turner

did not tell Braver that he had permission to leave the

restaurant or even argue about his termination, so his

belated claim of permission from a “psuedomanager” is

beside the point. Turner has not established a triable

issue of fact on his retaliation claim under the direct

method of proof.

Turner also proceeds under the indirect method of

proof. The distinction between the two methods of proof

“is often fleeting” largely “[b]ecause both methods

allow the use of circumstantial evidence.” Martino v. MCI

Commc’ns Servs., Inc., 574 F.3d 447, 452 (7th Cir. 2009). In

any event, under the indirect method, Turner must

“prov[e] that []he (1) engaged in a statutorily protected

activity; (2) met h[is] employer’s legitimate expectations;

(3) suffered an adverse employment action; and (4) was

treated less favorably than similarly situated employees

who did not engage in statutorily protected activity.”

Amrhein, 546 F.3d at 859.

Turner fails to establish his prima facie case essentially

for the same reasons he fails under the direct method: No
No. 07-2449 19

rational jury could believe that Turner was meeting The

Saloon’s legitimate job expectations. We have just described the litany of citations that Turner received from

March to December of 2004. Further, we add that Turner

cannot point to any other employee with a similarly

checkered personnel file who was treated differently.

Indeed, Turner has not suggested that anyone else failed

to comply with similar management policies, and there

is no evidence in the record that any other waiter left

the restaurant completely unattended during business

hours without being disciplined. The district court properly granted summary judgment for the defendants on

Turner’s Title VII retaliation claim.

C. ADA Discrimination Claim

We turn next to Turner’s claim for disability discrimination in violation of the ADA. The ADA makes it unlawful

for an employer to “discriminate against a qualified

individual on the basis of disability in regard to . . . terms,

conditions, and privileges of employment.” 42 U.S.C.

§ 12112(a). Turner argues that The Saloon discriminated

against him in violation of the ADA by requiring him

to change in the “fecal contaminated, unsanitary” men’s

bathroom rather than in the employee common area. He

further faults The Saloon’s alleged failure to accommodate his disability when it rejected his proposals to

let him change in the basement or behind a curtain.

For Turner to survive summary judgment under these

theories, he must first show that he is “disabled” within

the meaning of the Act. Id.; EEOC v. Lee’s Log Cabin, Inc.,
20 No. 07-2449

546 F.3d 438, 442 (7th Cir. 2008); Mobley, 531 F.3d at 545.

The ADA defines “disability” as:

(A) a physical or mental impairment that substantially limits one or more major life activities of such

individual;

(B) a record of such an impairment; or

(C) being regarded as having such an impairment . . . .

42 U.S.C. § 12102(1). Turner maintains that his psoriasis

constitutes a physical impairment that limits his ability

to walk, a major life activity under 29 C.F.R. § 1630.2(i).

For this argument to succeed, Turner must establish that

he is “substantially limited” in his ability to walk.

The applicable ADA regulations explain that a person

is “substantially limited” in a major life activity when he

is “[s]ignificantly restricted as to the condition, manner

or duration under which [he] can perform a particular

major life activity as compared to the condition, manner,

or duration under which the average person in the

general population can perform that same major life

activity.” 29 C.F.R. § 1630.2(j)(1)(ii). This regulation adds

that “an individual who, because of an impairment, can

only walk for very brief periods of time would be substantially limited in the major life activity of walking.” Id.

§ 1630 app. On the other hand, “an individual who had

once been able to walk at an extraordinary speed would

not be substantially limited in the major life activity

of walking if, as a result of a physical impairment, he

or she were only able to walk at an average speed, or

even at moderately below average speed.” Id.
No. 07-2449 21

Our cases further clarify when an individual is substantially limited in his ability to walk. We have held

that walking with difficulty is not a significant restriction

on walking. Squibb v. Mem’l Med. Ctr., 497 F.3d 775, 785

(7th Cir. 2007). We have also held that an employee is not

disabled when he admitted that he could walk “distances

of less than a mile ‘consistently,’ [and] that a mile walk

‘wouldn’t be any problem as long as I’m paying attention

to what I’m doing.’ ” Moore v. J.B. Hunt Transp., Inc., 221

F.3d 944, 951 (7th Cir. 2000). Other circuits have reached

similar determinations. See Wood v. Crown Redi-Mix, Inc.,

339 F.3d 682, 685 (8th Cir. 2003) (no disability where

plaintiff could walk a quarter-mile before having to

stop and rest); Black v. Roadway Express, Inc., 297 F.3d

445, 451 (6th Cir. 2002) (no disability where plaintiff walks

with a limp and plaintiff’s knee becomes “dysfunctional”

after two miles of walking); Taylor v. Pathmark Stores, Inc.,

177 F.3d 180, 186 (3d Cir. 1999) (no disability where

employee walked with a limp and required a ten-minute

break during every hour of walking or standing).

It is clear from these cases that Turner has not come

close to establishing that his psoriasis substantially

limits his ability to walk. At worst, he says his psoriasis

periodically causes “severe pain causing him to walk

with his legs more astride appearing as a limp.” Turner

admits to playing pick-up basketball and baseball a few

times per week during the summer. Indeed, he even

testified that he can “bicycle and walk usually fine.” In

light of these admissions, Turner’s claim that he is

disabled under the meaning of the Act fails as a matter

of law. The district court properly granted summary
22 No. 07-2449

judgment dismissing Turner’s disability-discrimination

claim.

D. ADA Retaliation Claim

Turner also claims he was fired in retaliation for complaining about The Saloon’s no-nakedness policy. The

district judge did not mention this count in his opinion

granting summary judgment for the defendants, and for

understandable reason. Despite alleging separate claims

for retaliation under both the ADA and Title VII,

Turner’s briefs in the district court reference his “retaliation claim” as a whole. Turner could have easily avoided

confusion by keeping his causes of action separate

from one another. Regardless, the parties have argued

the ADA-retaliation claim separately on appeal; for the

sake of completeness, we will briefly sketch the required analysis.

The fact that Turner is not disabled under the ADA is not

fatal to his retaliation claim. 42 U.S.C. § 12203(a); Squibb,

497 F.3d at 786. “The Act prohibits an employer from

retaliating against an employee who has raised an

ADA claim, whether or not that employee ultimately

succeeds on the merits of that claim.” Squibb, 497 F.3d at

786. As in the Title VII context, Turner may proceed

under the direct and indirect methods of proof. To prove

retaliation under the direct method, Turner must “present[] evidence of: ‘(1) a statutorily protected activity; (2) an

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

two.’ ” Id. (quoting Burks v. Wis. Dep’t of Transp.,

464 F.3d 744, 758 (7th Cir. 2006)). Turner meets the first
No. 07-2449 23

two elements of the test because he filed discrimination

charges with the EEOC and was later fired. His claim

fails, however, under the causal-connection element.

Turner again relies mostly on timing. Although the temporal connection is closer for his ADA-retaliation claim, it

still is not enough. He was fired roughly two months

after he filed his EEOC charge. We have previously

held that a seven-week proximity in time is not sufficient

to establish a causal connection to withstand summary

judgment. See Argyropoulos, 539 F.3d at 734.

Beyond timing, Turner offers the same arguments as

he did in the Title VII retaliation context, which we

have already rejected. Turner’s ADA-retaliation claim

therefore fails under the direct method of proof. Similarly,

for the reasons canvassed above, Turner has not established his prima facie case under the indirect method

because he cannot show either that he was performing

his job satisfactorily or that there is any similarly

situated employee who was treated differently. See

Squibb, 497 F.3d at 788-89.

E. Wage Claims

Finally, we turn to Turner’s wage claims. Turner

asserts that from late 2003 through 2004, he worked with

Lake on several Sundays and that Lake often directed

him to alter his time records to make him ineligible for
24 No. 07-2449

Because the protections of the Illinois Wage Payment and

7

Collection Act are coextensive with those of the FLSA, Condo

v. Sysco Corp., 1 F.3d 599, 601 n.3 (7th Cir. 1993), our analysis

of Turner’s FLSA claim applies equally to his Illinois Wage

Payment Act claim.

overtime pay in violation of the FLSA, 29 U.S.C. § 207.7

Turner believes he has been denied a “substantial

amount” of money because of Lake’s actions. He also

suggests he has information confirming the amount of

overtime he was denied, but this “information” has

never been placed in the record. The Saloon challenged

Turner’s claims by introducing its payroll records, which

show that Lake and Turner worked together on only

four Sundays during the time period at issue. On two

of those Sundays, Turner’s hours for the week were

extremely low, suggesting that any time-shaving on

Sunday was unnecessary. For the other two Sundays,

Turner actually received overtime pay.

The district court granted summary judgment dismissing the wage claims, concluding that Turner’s arguments were “unsupported ipse dixit [that] is flatly

refuted by the hard evidence proffered by Saloon.” The

court’s decision was manifestly correct; this claim is

flimsy in the extreme. Turner has the burden of proving

that he performed overtime work for which he was not

properly compensated, and if he contends that his employer’s records are not accurate—which he does—then

he must “produce[] sufficient evidence to show the

amount and extent of that work as a matter of just and

reasonable inference.” Anderson v. Mt. Clemens Pottery
No. 07-2449 25

The one piece of record evidence Turner points to—a docu- 8

ment cryptically saying “Turner 38.88 hours—cut first”—is

inconclusive at best.

2-8-10

Co., 328 U.S. 680, 687 (1946), superseded on other grounds

by statute, Portal-to-Portal Act of 1947, 29 U.S.C. §§ 251-

262. Although Turner disputes the accuracy of The

Saloon’s records, his mere assertions are insufficient to

create a jury issue. See Jackson v. E.J. Brach Corp., 176

8

F.3d 971, 985 (7th Cir. 1999); see also Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (opponent

of summary judgment must do more than raise “some

metaphysical doubt as to the material facts”). Turner’s

wage claims were properly dismissed.

For the foregoing reasons, the judgment of the district

court is AFFIRMED to the extent that it dismissed Turner’s

ADA claims, his overtime claims, and his Title VII retaliation claim. Regarding Turner’s sexual-harassment

claim under Title VII, the judgment is REVERSED and the

case is REMANDED for further proceedings consistent

with this opinion.