The Honorable Robert L. Miller, Jr. of the Northern District



of Indiana, sitting by designation.

In the

United States Court of Appeals

For the Seventh Circuit

No. 12-2893

RENEE S. MAJORS,

Plaintiff-Appellant,

v.

GENERAL ELECTRIC COMPANY,

Defendant-Appellee.

Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

No. 10-C-1731—Larry J. McKinney, Judge.

ARGUED JANUARY 14, 2013—DECIDED APRIL 16, 2013

Before EASTERBROOK, Chief Judge, HAMILTON, Circuit

Judge, and MILLER, District Judge.



MILLER, District Judge. Renee S. Majors, a long-time

employee at General Electric Company’s Bloomington,

Indiana plant, filed suit alleging that GE violated the

Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.,
2 No. 12-2893

and Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000e et seq., when it denied her temporary and permanent positions to which she was otherwise entitled

under the seniority-based bidding procedure the plant

used to fill vacant positions. Ms. Majors also alleged

that GE retaliated against her, in violation of Title VII,

for filing Equal Employment Opportunity Commission

charges of discrimination when she was denied overtime hours and the opportunity to work “lack of work”

Fridays, and that GE constructively discharged her

when she elected to retire. The district court granted

GE summary judgment on all claims. Ms. Majors appeals that decision with the exception of her Title VII

discrimination claim. We affirm.

I. BACKGROUND

Ms. Majors worked at GE’s Bloomington plant for 32

years. In 2000, she suffered a work-related injury to her

right shoulder that left her limited to lifting no more

than twenty pounds and precluded her from work

above shoulder level with her right arm. The restrictions

were considered temporary at first, but according to

her medical file maintained by GE, the restrictions

later were determined to be permanent.

The Bloomington GE plant manufactures side-by-side

refrigerators. The workforce dropped from 3,000 employees in 2000 to 750-800 employees in 2009. A collective

bargaining agreement between GE and the union governs the terms and conditions of employment for

the Bloomington plant hourly employees, including

Ms. Majors. The CBA requires that vacant temporary or
No. 12-2893 3

permanent positions be awarded to the most senior

eligible employee who bids on the position. The onsite

medical clinic, which is operated by a third party,

received notice of a job award. The clinic staff reviews

the position and the employee’s medical file to decide

whether any restrictions affect the employee’s ability to

perform the position, and if so, whether the restrictions

can be accommodated. The clinic staff informs GE’s

human resources department whether the employee is

medically qualified for the position. The position goes

to the next most senior bidder if the employee isn’t medically qualified.

Ms. Majors held several different positions at the

plant, including a stint as a purchased material auditor

from December 2000 to June 2001. She worked as a

quality control inspector in Assembly, performing

quality audits on refrigerators, from February 2003

until her retirement in October 2009.

In May 2009, Ms. Majors was the senior eligible

bidder for a temporary purchased material auditor position. A purchased material auditor inspects, tests, and

audits a variety of purchased components and internally

manufactured parts for conformance to engineering

specifications and quality standards before the component or part is released to production or shipment.

The position requires “intermittent movement of heavy

objects,” which is the focus of this dispute. Lead Occupational Health Nurse Toni Kristoff reviewed the job

award and noted that Ms. Majors had permanent lifting

restrictions and the job description required intermittent
4 No. 12-2893

movement of heavy objects. Ms. Kristoff discussed the

position’s lifting requirements with Labor Resources

Manager Linda Schneider and discovered that lifting

more than twenty pounds was an essential function of

the position. Consequently, Ms. Kristoff determined

Ms. Majors was not medically qualified for that position.

Ms. Majors let management know that she believed

she could perform the auditor position. GE further investigated the position’s requirements and whether

Ms. Majors’s lifting restrictions could be accommodated.

A group that included Ms. Kristoff, Ms. Schneider, and

an ergonomic technical specialist reviewed the auditor

job description and visited the work area. The group

discussed the position’s requirements with a current

auditor and the manager of the auditors, both of whom

confirmed that lifting parts and material weighing

more than twenty pounds was an essential function of

the position. Ms. Schneider and the ergonomic specialist

weighed objects the auditor had to lift and confirmed

the objects weighed more than twenty pounds. A nurse

practitioner reviewed and corroborated Ms. Kristoff’s

conclusion that Ms. Majors wasn’t medically qualified

for the position. Ms. Kristoff and the ergonomic

specialist discussed the position’s lifting requirements

with Ms. Majors, who suggested that a material handler

could do the lifting. Ms. Majors testified in her deposition that she repeatedly told Ms. Kristoff that the

lifting restrictions no longer limited her.

GE decided Ms. Majors couldn’t perform an essential

function of the auditor position because of her per-
No. 12-2893 5

manent lifting restrictions, and the company gave the

job to the next most senior eligible bidder. Ms. Majors

filed a charge of discrimination with the EEOC on May 22,

2009 alleging she was denied the temporary auditor

position because of her disability (in violation of the

ADA) and her sex (in violation of Title VII).

Ms. Majors claims that as a result of filing her EEOC

charge, she was denied overtime hours and the opportunity to work on “lack of work” Fridays. A “lack of

work” day occurs when no production is scheduled at

the plant and few employees are scheduled to work.

Ms. Majors emphasizes the difference between her overtime hours worked and “lack of work” Friday assignments compared to those of three other quality control

inspectors at the plant and her replacement. In 2009,

GE offered a special early retirement program that required eligible employees to elect to participate by

August 31, 2009. Ms. Majors claims that seven days

before the deadline, shortly after returning from her

mother’s funeral, she chose to participate in the

program and retire in November 2009 due to the discrimination and retaliation.

In October, after she had elected to retire but before

her retirement began, Ms. Majors applied for and, as

the senior eligible bidder, was awarded a permanent

auditor position. Ms. Kristoff again reviewed the

award and confirmed with the auditor supervisor that

the position’s lifting requirements hadn’t changed.

Ms. Kristoff determined Ms. Majors wasn’t medically

qualified for the auditor position, and the job went to

the next most senior eligible bidder.
6 No. 12-2893

Ms. Majors filed a second charge of discrimination

on March 30, 2010 alleging that she was denied the permanent auditor position because of her disability and

sex. Ms. Majors also alleged retaliation and constructive

discharge. Ms. Majors filed suit, alleging that by not

awarding her either the temporary or permanent

auditor position, GE discriminated against her in violation of the ADA and Title VII. Ms. Majors claimed GE

retaliated against her, violating Title VII, by denying her

overtime hours and the chance to work Fridays that

were “lack of work” days. Ms. Majors also alleged GE

constructively discharged her when she retired. The

district court granted GE summary judgment as to all

of Ms. Majors’s claims, and Ms. Majors appeals the

district court’s decision with the exception of her

Title VII discrimination claim.

II. STANDARD OF REVIEW

We review a district court’s decision to grant summary judgment de novo. Goetzke v. Ferro Corp., 280 F.3d

766, 774 (7th Cir. 2002). Summary judgment is appropriate if “there is no genuine dispute as to any material

fact.” FED. R. CIV. P. 56. Although intent and credibility

are often critical issues in employment discrimination

cases, no special summary judgment standard applies

to such cases. Alexander v. Wisconsin Dep’t of Health &

Family Serv., 263 F.3d 673, 681 (7th Cir. 2001). In an employment discrimination case, as in any case, “we must

construe all facts and draw all reasonable inferences in

the light most favorable to the nonmoving party.”
No. 12-2893 7

Goetzke v. Ferro Corp., 280 F.3d at 774; Haugerud v. Amery

Sch. Dist., 259 F.3d 678, 689 (7th Cir. 2001). Summary

judgment is appropriate if the nonmoving party “fails

to make a showing sufficient to establish the existence

of an element essential to that party’s case, and on

which that party will bear the burden of proof at trial.”

Ellis v. CCA of Tennessee LLC, 650 F.3d 640, 646 (7th

Cir. 2011) (quoting Celotex Corp. v. Catrett, 477 U.S.

317, 322 (1986)).

III. DISCUSSION

A. ADA Discrimination

Ms. Majors first contends the district court improperly

granted summary judgment on her claim that GE discriminated against her when she wasn’t promoted to

a purchased material auditor position due to her permanent work restrictions. The ADA proscribes an employer from “discriminat[ing] against a qualified individual on the basis of disability” in job application procedures and in the hiring or advancement of employees.

42 U.S.C. § 12112(a). Depending on the issues raised by

a summary judgment motion, an ADA plaintiff must

identify a genuine issue of material fact as to whether

(1) she is disabled; (2) she is able to perform the

essential functions of the job either with or without reasonable accommodation; and (3) she suffered an adverse employment action because of her disability. Povey

v. City of Jeffersonville, Ind., 697 F.3d 619, 622 (7th Cir.

2012). Ms. Majors argues that she was disabled within

all three definitions of disability under the ADA.
8 No. 12-2893

The district court cited Serednyj v. Beverly Healthcare, LLC, 656 1

F.3d 540, 555 (7th Cir. 2011) (“Indeed, the inability to do

heavy lifting is not a substantial limitation as compared to the

average person.”); Zahurance v. Valley Packaging Indus., Inc., 397

F. App’x 246, 248 (7th Cir. 2010) (lifting restriction of no

more than thirty-five pounds on an occasional basis and twenty

pounds on a regular basis prior to amendments was insufficient to establish a substantial limitation to a major life

activity); Mays v. Principi, 301 F.3d 866, 869 (7th Cir. 2002),

abrogated on other grounds by EEOC v. United Airlines, Inc.,

693 F.3d 760 (7th Cir. 2012) (ten pound lifting restriction

is not a disability). 

Disability is defined as “(A) a physical or mental impairment that substantially limits one or more major life

activities of [the] individual; (B) a record of such an

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

impairment.” 42 U.S.C. § 12102(1). Ms. Majors applied for and was denied the purchased material

auditor positions in 2009, so the amended ADA applies to Ms. Majors’s allegations. Lifting is a major life

activity under today’s law. 42 U.S.C. § 12102(2)(A); ADA

Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat.

3553 (2008). Relying on pre-amendment case law, the 1

district court concluded that a physical impairment that

resulted in a permanent twenty pound lifting restriction

didn’t substantially limit Ms. Majors’s lifting ability.

Ms. Majors argues that the amendments broadened the

scope of the ADA’s definition of disability, so we should

disregard pre-amendment precedent and reconsider

whether a permanent twenty pound lifting restriction

is a substantial limitation. At her deposition, however,
No. 12-2893 9

Ms. Majors testified that she wasn’t limited by the twenty

pound lifting restriction, and in her summary judgment response, she conceded that the lifting restriction didn’t apply to her. We don’t need to decide

whether Ms. Majors has a disability, though, because

there was no issue of fact as to whether Ms. Majors was

a qualified individual, entitling GE to summary judgment on the ADA claim.

A qualified individual under the ADA is a person

with a disability who is able to perform the essential

functions of the job either with or without reasonable

accommodation. 42 U.S.C. § 12111(8); see also Lloyd v.

Swifty Transp., Inc., 552 F.3d 594, 601 (7th Cir. 2009).

Ms. Majors contends she was a qualified individual

because she could lift objects weighing more than

twenty pounds with reasonable accommodation, but

GE failed to accommodate her restriction.

First, “[t]o determine whether a job function is essential,

we look to the employer’s judgment, written job descriptions, the amount of time spent on the function, and the

experience of those who previously or currently hold

the position.” Rooney v. Koch Air, LLC, 410 F.3d 376, 382

(7th Cir. 2005) (citing 29 C.F.R. § 1630.2(n)(3)). GE asserted that lifting objects weighing over twenty pounds

is an essential function of the auditor position. When

Ms. Majors expressed her belief that she could perform

the auditor position, GE carefully evaluated the position’s lifting requirements. The auditor job description

requires “intermittent movement of heavy objects,” and

an employee who held the purchased material auditor
10 No. 12-2893

Ms. Majors hasn’t argued on appeal that GE, to provide a 2

reasonable accommodation, had to “try and see” if she could

perform the purchased material auditor job despite her medical records.

position and the manager of the others holding the

position both confirmed that lifting parts and material

weighing over twenty pounds is an essential part of the

job. GE’s labor resources manager and an ergonomic

technical specialist weighed objects a purchased material auditor would be required to lift, such as compressors and boxes of screws, and verified that the objects

weighed more than twenty pounds. A second nurse

reviewed and confirmed Ms. Kristoff’s conclusion that

Ms. Majors wasn’t medically qualified for the position. We agree with the district court that lifting objects weighing more than twenty pounds is an essential

function of the purchased material auditor position.

As a result of Ms. Majors’s permanent restriction prohibiting her from lifting more than twenty pounds,

Ms. Majors couldn’t perform an essential function of

the auditor position without accommodation. Ms. Majors

bears the burden of establishing that she could perform

the essential functions of the position with or without

reasonable accommodation, and can’t meet this burden

if the only accommodations suggested were unreasonable. Gratzl v. Office of Chief Judges of 12th, 18th, 19th, &

22nd Judicial Circuits, 601 F.3d 674, 680 (7th Cir. 2010).

The only accommodation Ms. Majors proposed was to

have a material handler lift the heavy objects for her. To 2

have another employee perform a position’s essential
No. 12-2893 11

Circumstances might exist when employees working in 3

teams are able to share duties among themselves, so that such

sharing might be a form of reasonable accommodation. See

Miller v. Illinois Dep’t of Transp., 643 F.3d 190, 199-200 (7th

Cir. 2011). That is not today’s case.

function, and to a certain extent perform the job for

the employee, is not a reasonable accommodation.

Cochrum v. Old Ben Coal Co., 102 F.3d 908, 912 (7th Cir.

1996) (employee’s suggested accommodation of hiring a

helper to perform an essential function of the job, the

overhead work required by the position, was not a reasonable accommodation). We agree with the district

court that a material handler doing the heavy lifting for

Ms. Majors wasn’t a reasonable accommodation and

so isn’t required under the ADA. Gratzl v. Office of Chief 3

Judges, 601 F.3d at 681. Ms. Majors hasn’t met her burden

of establishing that she could perform the purchased

material auditor position with a reasonable accommodation. She hasn’t pointed to evidence sufficient to allow

a fact-finder to decide that she is a qualified individual;

without this element, summary judgment is appropriate

for her discrimination claim.

Ms. Majors frames her argument as a failure to accommodate claim, alleging that GE failed to provide her a

reasonable accommodation. She argues that GE had

the burden to prove that her proposed accommodation

of another employee’s doing the heavy lifting would be

an undue hardship on the business. This argument

ignores that this record won’t allow a finding that she is

a qualified individual. An ADA plaintiff can establish
12 No. 12-2893

The amendments to the ADA clarified that employers 4

needn’t provide reasonable accommodation to a “regarded

as” disabled individual. 42 U.S.C. § 12201(h). Before the amendments, the statute was silent, and we hadn’t resolved whether

such a duty existed for “regarded as” disabled individuals.

Powers v. USF Holland, Inc., 667 F.3d 815, 823 n.7 (7th Cir.

2011). Ms. Majors and GE dispute whether GE had a duty to

accommodate Ms. Majors if she had a “record of” disability

because the amended statute remains silent as to whether a

duty exists for individuals with a “record of” disability. We

(continued...)

discrimination by showing the employer failed to accommodate the employee, but she first must establish that

she is a qualified individual with a disability. Hoffman v.

Caterpillar, Inc., 256 F.3d 568, 572 (7th Cir. 2001).

The defendant has the burden to prove that the accommodation would create an undue hardship on the

business, but the plaintiff must first “show that the accommodation [she] seeks is reasonable on its face.”

Oconomowoc Residential Programs, Inc. v. City of Milwaukee,

300 F.3d 775, 783 (7th Cir. 2002) (citing US Airways, Inc.

v. Barnett, 535 U.S. 391, 401-02 (2002)). The accommodation Ms. Majors seeks—another person to perform an

essential function of the job she wants—is, as a matter

of law, not reasonable, so GE isn’t required to show

the accommodation would create an undue hardship.

Ms. Majors hasn’t pointed to evidence that could support a finding that she was a qualified individual;

without that, she can’t show that GE failed to provide

a reasonable accommodation. Gratzl v. Office of Chief 4
No. 12-2893 13

(...continued) 4

don’t decide whether an employer must provide a reasonable

accommodation to an individual with a “record of” disability

because Ms. Majors can’t establish that a reasonable accommodation existed. The analysis need not proceed to whether

the employer was required to accommodate Ms. Majors

with a hypothetical reasonable accommodation.

Judges, 601 F.3d at 681 (“To be entitled to a reasonable

accommodation—and thus to prove that the defendant

failed to provide such a reasonable accommodation—[the plaintiff] has the burden of establishing that

she is a ‘qualified individual with a disability’ under

the ADA.”).

Ms. Majors further argues that the process to determine

whether a reasonable accommodation existed was not

interactive, that GE flatly rejected her proposed accommodation and didn’t suggest a counter-proposal, and

that GE didn’t consider the use of lifting devices as an

accommodation. An interactive process between the

employer and the employee is meant “to determine

the appropriate accommodation for a qualified individual with a disability.” Jackson v. City of Chicago, 414

F.3d 806, 813 (7th Cir. 2005) (citing 29 C.F.R. § 1630.2(o)(3)).

This record wouldn’t allow a finding that Ms. Majors

was a qualified individual, so whether the discussion

between GE and Ms. Majors was sufficiently interactive is immaterial. Ms. Majors can’t satisfy the second

element of a discrimination claim, and GE is entitled

to summary judgment on that claim.
14 No. 12-2893

As evidence of pretext, Ms. Majors contends that she re5

peatedly told management that her lifting ability was no

longer restricted, and the company failed to re-evaluate the

permanency of her restriction. Ms. Majors received a 12%

permanent partial impairment rating and corresponding

cash payment in 2001 when her worker’s compensation claim

was closed. If the doctor has given an employee a permanent

work restriction and the employee has been paid worker’s

compensation benefits based on a permanent restriction, the

employee’s lay opinion that the restriction should no longer

apply isn’t sufficient to raise a genuine issue of material fact.

Finally, Ms. Majors contends that GE’s reason for not

awarding her the auditor position was pretextual. If a 5

plaintiff establishes a prima facie case of discrimination

under the ADA, the employer must offer a lawful, nondiscriminatory reason for its adverse employment action.

Amadio v. Ford Motor Co., 238 F.3d 919, 924 (7th Cir.

2001). Once a defendant meets this burden, the plaintiff

has the burden of showing the proffered reason is

actually a pretext for discrimination. Id. Ms. Majors

points to no evidence that would allow a trier of fact to

determine that she was a qualified individual, so she

hasn’t established a prima facie case of discrimination.

We need not address Ms. Majors’s pretext argument.

DeLuca v. Winer Indus., Inc., 53 F.3d 793, 798 (7th Cir. 1995).

B. Title VII Retaliation

Ms. Majors argues that the district court erred by

granting summary judgment on her retaliation claim.
No. 12-2893 15

Ms. Majors’s complaint asserted her retaliation claim under 6

Title VII and not the ADA. Although the standards and

elements of retaliation claims under Title VII and the ADA

are similar, Talanda v. KFC Nat’l Mgmt. Co., 140 F.3d 1090, 1095

(7th Cir. 1998), and Ms. Majors shifts to an ADA retaliation

claim in her appellate brief, we will analyze Ms. Majors’s

claim under the Title VII retaliation framework that she

pleaded in her complaint and under which the district court

analyzed her claim.

She maintains that after she filed her May 22, 2009

EEOC charge, GE subjected her to retaliation by denying

her overtime hours and the opportunity to work certain

Fridays known as “lack of work” days.

We first must determine the scope of Ms. Majors’s

retaliation claim. GE argues that Ms. Majors’s claim is 6

limited to GE’s conduct beginning 300 days before her

March 30, 2010 EEOC discrimination charge was filed. A

plaintiff must file a charge of discrimination with an

appropriate agency before she can file a lawsuit invoking

the protections of Title VII. 42 U.S.C. § 2000e-5(e)(1);

Laouini v. CLM Freight Lines, Inc., 586 F.3d 473, 475 (7th

Cir. 2009). An Indiana plaintiff has 300 days from the

date of the conduct at issue to file an EEOC discrimination charge. Id. (“Indiana is a ‘deferral state,’ meaning

it has a state agency with enforcement powers parallel

to those of the EEOC.”). A charge filed beyond the 300-

day period is untimely and barred. National R.R. Passenger

Corp. v. Morgan, 536 U.S. 101, 109 (2002). A Title VII

complaint generally is limited to the claims asserted

in the underlying EEOC discrimination charge. Weiss v.
16 No. 12-2893

Coca-Cola Bottling Co. of Chicago, 990 F.2d 333, 337 (7th

Cir. 1993).

Ms. Majors counters that GE’s conduct was a pattern

and practice, so her claim isn’t limited by the statute

of limitation. A pattern and practice claim requires proof

of discrimination against a protected group, Puffer v.

Allstate Ins. Co., 675 F.3d 709, 716 (7th Cir. 2012), but

Ms. Majors offers no evidence or argument to suggest

a protected group was subject to discrimination or retaliation. Ms. Majors’s retaliation claim was subject to

the 300-day statute of limitation, and her second EEOC

charge was filed 311 days after her first EEOC charge

was filed. Consequently, the district court concluded

that Ms. Majors’s retaliation claim was limited to GE’s

conduct during the 300-day period before the second

EEOC charge was filed, i.e., from June 3, 2009 forward.

We agree.

A Title VII plaintiff can prove retaliation under either

the direct or indirect method. Nichols v. Southern Illinois

Univ.-Edwardsville, 510 F.3d 772, 784 (7th Cir. 2007). The

direct method requires proof that (1) the employee engaged in statutorily protected activity; (2) she suffered

an adverse employment action; and (3) a causal link

exists between the two. Nichols v. Southern Illinois Univ.-

Edwardsville, 510 F.3d at 784-85. The indirect method

requires proof that (1) the employee engaged in statutorily

protected activity; (2) she was meeting her employer’s

legitimate expectations; (3) she suffered an adverse employment action; and (4) she was treated less favorably

than similarly situated employees who did not engage
No. 12-2893 17

in statutorily protected activity. Id. at 785. Ms. Majors

claims she can prove GE retaliated against her under

both methods.

The parties don’t dispute that Ms. Majors engaged in

a protected activity when she filed a charge of discrimination with the EEOC. Ms. Majors claims her job performance was rated as satisfactory, and that she was

subject to an adverse employment action when GE

denied her overtime hours and the opportunity to

work “lack of work” Fridays. The parties dispute whether

Ms. Majors has established a causal link between the

protected activity and the adverse employment action

or offered evidence of similarly situated employees. 

Ms. Majors first points to the closeness in time

between the date she filed the EEOC charge and the

alleged retaliation. She argues that she received less

overtime hours and “lack of work” Friday assignments

than other quality control inspectors in the plant from

June to October 2009, a time period that began less than

two weeks after she filed the EEOC charge and ended

when she retired. Closeness in time between the

protected activity and the adverse employment action is

evidence of the causal link between the two events, Lang

v. Illinois Dep’t of Children & Family Servs., 361 F.3d 416,

419 (7th Cir. 2004), but to survive summary judgment, the

plaintiff must offer more evidence that supports the

inference of a causal link between the two events than

simply close temporal proximity. Tomanovich v. City

of Indianapolis, 457 F.3d 656, 665 (7th Cir. 2006).
18 No. 12-2893

Ms. Majors emphasizes the difference between the

actual overtime hours and “lack of work” Fridays she

worked compared to other inspectors and her replacement. From June through October 2009, Ms. Majors

worked 14.6 overtime hours. For comparison, Ms.

Majors cites the overtime hours, from the same time

period, of three people holding inspector positions:

Ricky May, 147.6; Rodney Ira, 139.6; and Barry

Taylor, 11.9. Her replacement, Cheryl Abram, worked 75.1

overtime hours from June to October 2010. Quality

control inspectors worked the following number of

Fridays from June to October 2009: Ms. Majors, three;

Mr. May, five; Mr. Ira, seven; and Mr. Taylor, five. During

the same time period in 2010, Ms. Majors’s replacement,

Ms. Abram, worked fourteen Fridays.

Comparison of the overtime hours and “lack of work”

Fridays Ms. Majors worked in 2009 to those her replacement worked the following year establishes only that

Ms. Majors was assigned fewer hours than her replacement. Many other factors, including the lapse in time,

might have caused the disparity between the numbers.

A more valuable comparison can be made between

Ms. Majors’s overtime hours and those worked by other

quality control inspectors in the plant during the same

period of time. A startling difference emerges among

the overtime hours assigned quality control inspectors

Mr. May (147.6) and Mr. Ira (139.6) and those assigned

to Ms. Majors (14.6) and Mr. Taylor (11.9). Ms. Majors

had significantly fewer overtime hours than Mr. May

and Mr. Ira, but her hours were slightly higher than

Mr. Taylor’s hours (14.6 compared to 11.9). Ms. Majors
No. 12-2893 19

worked the fewest “lack of work” Fridays among the

quality control inspectors (three compared to five and

seven), but that discrepancy is marginal. A calendar

shows there were twenty-two Fridays from June to

October 2009, but the summary judgment record

doesn’t reveal the number of “lack of work” Fridays

during that period. One quality control inspector

worked more than twice the number of Fridays

Ms. Majors worked—seven compared to three—and two

quality control inspectors worked two additional days.

When examined in context, the assignment to

Ms. Majors of less overtime hours than two of her coworkers and fewer “lack of work” Fridays than three of

her coworkers during the months after she filed an

EEOC charge doesn’t amount to sufficient evidence to

support an inference of causation. Ultimately, Ms. Majors

argues that the adverse employment action itself is evidence of a causal link between Ms. Majors’s protected

activity and the adverse employment action, receiving

less overtime hours and “lack of work” Fridays. “There

is no bright-line rule as to the amount of evidence necessary to survive summary judgment under the direct

method,” Tomanovich v. City of Indianapolis, 457 F.3d at

665, but Ms. Majors didn’t identify evidence sufficient

to create an issue of fact as to whether the protected

activity was the cause of the alleged adverse employment action.

Employees typically are similarly situated if they had

the same supervisor, were subject to the same employment standards, and engaged in similar conduct. South
20 No. 12-2893

v. Illinois Env’t Prot. Agency, 495 F.3d 747, 752 (7th Cir.

2007). But the similarly situated analysis is flexible, and

the result depends on any relevant factors and common

sense. Id. “[S]ufficient commonalities on the key variables

between the plaintiff and the would-be comparator [are

required] to allow the type of comparison that, taken

together with the other prima facie evidence, would

allow a jury to reach an inference of discrimination or

retaliation.” Id. (quoting Humphries v. CBOCS West, Inc., 474

F.3d 387, 405 (7th Cir. 2007)).

Ms. Majors held a quality control inspector position

in 2009, and she argues that all quality control inspectors in the Bloomington plant were similarly

situated employees, especially her replacement, Cheryl

Abram. Ms. Majors offers no evidence that all the inspectors were similarly situated employees, or why

her replacement in particular was similarly situated. GE

contends that Ms. Majors was the only inspector who

reported to her supervisors, Gary Hamilton and Amine

Karoud, and the only inspector in her cost center and

area of the plant. According to GE, two quality control

inspectors Ms. Majors uses as comparators (Ricky May

and Rodney Ira) had different job classifications than

Ms. Majors, Barry Taylor, and Cheryl Abram; neither

party presented any evidence about the difference

between the job classifications. Ms. Majors didn’t suggest the other quality control inspectors had the same

supervisor or offer any other common attribute among

the quality control inspectors. Ms. Majors has pointed

to no evidence, apart from the job title, to support her

contention that the employees were similarly situated
No. 12-2893 21

Because Ms. Majors didn’t establish a prima facie case of 7

retaliation under either the direct or indirect method, we need

not reach GE’s argument (that the district court didn’t address) that Ms. Majors’s retaliation claim lacked merit

because she didn’t offer any evidence that her supervisors,

who were responsible for the retaliatory conduct, were

aware that she had filed an EEOC charge of discrimination. 

to her or that would allow a reasonable trier of fact

to conclude that GE treated other inspectors differently

than Ms. Majors. Accordingly, we agree with the district

court that Ms. Majors’s retaliation claim can’t survive

summary judgment under the indirect method of proof.

We agree with the district court that Ms. Majors has

offered no evidence that would allow her retaliation

claim to survive summary judgment under either the

direct or indirect method of proof.7

Ms. Majors also asserts that the difference between the

hours worked by Ms. Majors, her replacement, and

other inspectors at the plant is evidence of pretext.

Ms. Majors argues that evidence of pretext, when combined with temporal proximity, is sufficient additional

evidence of causation to survive summary judgment

under the direct method, and cites Third and Tenth Circuit case law to support her argument. Farrell v. Planters

Lifesavers Co., 206 F.3d 271, 286 (3d Cir. 2000); Wells v.

Colorado Dep’t of Transp., 325 F.3d 1205, 1218 (10th Cir.

2003). But Ms. Majors didn’t offer sufficient evidence to

show that GE’s proffered reasons for the overtime and

“lack of work” Friday assignments were pretextual. A
22 No. 12-2893

defendant has the burden to offer a non-discriminatory

reason for the adverse employment action, typically

after the plaintiff establishes a prima facie case of retaliation. Nichols v. Southern Illinois Univ.-Edwardsville, 510

F.3d at 785. The burden then shifts back to the plaintiff, who must establish the proffered reason was

pretextual. Id.

With respect to the discrepancy found in the time

records, GE claims that the CBA directs the procedure

used to distribute overtime hours among hourly employees. GE groups employees who perform similar work

into a cost center. According to GE, the cost center’s

supervisor has the discretion to determine whether overtime is required and the employees who will perform

the work. GE claims that Ms. Majors’s supervisors

decided that overtime and “lack of work” Fridays were

unnecessary, and they were trying to control costs. GE

says the CBA requires that the distribution of overtime

hours be equalized among the employees within a job

classification on the same shift in the cost center. According to GE, hourly employees don’t work on a “lack

of work” day unless the employee is brought in for a

specific purpose such as preventative maintenance, and

the Bloomington plant experienced many “lack of work”

days in 2009. GE claims the reason for the inconsistency

in the overtime assignments was that Mr. May and

Mr. Ira, although quality control inspectors, had a different job classification (9018), while Ms. Majors and

Mr. Taylor were both within the job classification 9014.

GE’s explanation constitutes a non-discriminatory
No. 12-2893 23

reason for the overtime hour and “lack of work” Friday

assignments reflected in the time records.

An employer’s proffered non-discriminatory reason

for the adverse employment action is pretextual if it was

a lie. Gates v. Caterpillar, Inc., 513 F.3d 680, 691 (7th Cir.

2008). As evidence of pretext, Ms. Majors claims GE

didn’t adhere to the CBA overtime distribution

procedure and points to GE’s time records to support

her claim. Ms. Majors emphasizes that she testified at

her deposition that the procedure provided by the CBA

was “not the way it’s ever been.” She argues GE didn’t

offer any evidence about the CBA overtime distribution procedure or the difference between the job

classifications. The most reasonable inference from

these circumstances, she claims, is that GE denied her

overtime hours and the opportunity to work “lack of

work” Fridays because she filed an EEOC charge

of discrimination.

GE’s time records alone don’t prove that GE didn’t

abide by the CBA as Ms. Majors claims. GE’s explanation

that the distribution of overtime hours is equalized

under the CBA among employees within a job classification, and the quality control inspectors with the most

overtime hours had a different job classification than

Ms. Majors isn’t patently false. Ms. Majors claims it

isn’t true, but offers nothing more. While GE didn’t

offer further details about why certain inspectors had

different job classifications, it is Ms. Majors, the nonmoving party, who must set forth sufficient evidence

to survive summary judgment, and she has only offered
24 No. 12-2893

conclusory statements that the summary judgment

record doesn’t support. See Albiero v. City of Kankakee,

246 F.3d 927, 933 (7th Cir. 2001). Ms. Majors hasn’t

offered sufficient evidence that GE fabricated its

proffered non-discriminatory reason for the overtime

and “lack of work” Friday distribution to establish pretext.

C. Constructive Discharge 

Finally, Ms. Majors contends summary judgment was

inappropriate for her claim that she was constructively

discharged when she retired early due to extreme

stress. On August 24, 2009, Ms. Majors chose to participate in a special early retirement program and retire

in November of that year. The special early retirement

option was a part of the national CBA and was offered

to GE employees who were 55 years old or older and

had worked for GE for twenty-five years or more.

Eligible employees had to apply for the program by

August 31. Ms. Majors contends she was under extreme

stress and her working conditions were intolerable

because she was denied the temporary auditor position,

had been denied the opportunity to work overtime and

“lack of work” Fridays, and was required to decide

whether she would opt into the early retirement program within days of returning from her mother’s funeral.

Ms. Majors doesn’t contend, however, that GE’s

conduct violated any federal law, and she doesn’t cite

any rule of law that says an employer can’t require an

employee to make a decision about an early retirement

program because the employee is under extreme stress.
No. 12-2893 25

We note that GE’s decision not to award Ms. Majors the

temporary purchased material auditor position was not

the result of discrimination and GE’s decision not to

assign additional hours to Ms. Majors was not retaliation. Ms. Majors wasn’t constructively discharged when

she decided to retire early, and summary judgment

was appropriate.

IV. CONCLUSION

For the forgoing reasons, we affirm the district court’s

entry of summary judgment in favor of GE on all claims.

4-16-13