UNPUBLISHED ORDER

Not to be cited per Circuit Rule

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued December 3, 2004

Decided May 31, 2005

Before

Hon. JOEL M. FLAUM, Chief Judge

Hon. FRANK H. EASTERBROOK, Circuit Judge

Hon. ANN CLAIRE WILLIAMS, Circuit Judge

No. 03-4183

WILLIETTE MASON,

Plaintiff-Appellant,

v.

NORTHERN INDIANA PUBLIC

SERVICE COMPANY,

Defendant-Appellee.

Appeal from the United States District

Court for the Northern District of

Indiana, Hammond Division.

No. 01 CV 362

Andrew P. Rodovich,

Magistrate Judge.

O R D E R

Appellant Williette Mason sued her former employer, Northern Indiana

Public Service Company ("Nipsco"), alleging discrimination pursuant to the

Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12112 et seq. The

district court granted summary judgment in favor of Nipsco, and we affirm the

finding that defendant's legitimate, non-discriminatory reasons for not offering

Mason the position of Accounts Payable Clerk were not pretextual.
No. 03-4183 Page 2

I. BACKGROUND

Williette Mason was initially hired by Nipsco in 1989 as a temporary clerk

and was later hired as a regular employee in 1990, working in a variety of clerical

positions. Mason first began experiencing pain in her elbow, wrist and shoulder in

June 1998 when she was temporarily working as a Mail Processing Cash Clerk. 

The pain persisted through early 1999, so Mason sought medical attention and was

diagnosed with "mild right lateral epicondylitis" by Dr. Ralph Richter, a hand

specialist. She returned to work with a physical restriction from any job that

involved rapid or repetitive motion or heavy lifting. 

During April and May 1999, Mason's physicians, Dr. Mohamahad Turkmani

and Dr. Marc Levin, diagnosed her with right arm radiculopathy, cervical muscle

spasm, strain and cervical radiculopathy. Subsequent to these diagnoses, in

August 1999, Mason was given the position of Micrographics Archive Clerk

("Archives Clerk"), where her primary duty was to remove heavy-duty staples. This

job aggravated her condition and Mason revisited Dr. Levin, who then further

restricted Mason to lifting only 10 to 20 pounds. 

In light of her additional restriction and in order to enable Mason to perform

the essential functions of the Archive Clerk position, Nipsco made a number of

accommodations, including (1) allowing Mason to work at her own pace; (2)

allowing Mason to take additional break time during the workday at her discretion;

and (3) providing a special chair for Mason to use while at work. 

Despite these accommodations, Mason again complained of pain and took

sick leave in January 2000, seeking further medical attention from Dr. Nancy

Trimboli, a chiropractor. Dr. Trimboli diagnosed her with "advanced cervical disc

degeneration with nerve root compression." Three months later, in March 2000,

Mason sought treatment from Dr. Antonela Svetic, who diagnosed Mason with

"myofascial neck and thoracic pain." Neither Dr. Trimboli nor Dr. Svetic provided a

definite return-to-work date; Dr. Trimboli provided a "possible" return-to-work date

of April 15, 2000, and Dr. Svetic advised Mason to return only if the job was a "light

duty job avoiding repetitive arm movements."

While Mason was on medical leave, a position as an Accounts Payable Clerk

opened up in March 2000. Under the terms of the Steelworkers Local 13796 union

contract, Mason had first priority to the position given her seniority and because

she had previously been "bumped" out of a similar open position in 1993. It was

unclear, however, whether Mason could perform as an Accounts Payable Clerk. 

To determine whether Mason could fulfill the essential functions of the
No. 03-4183 Page 3

position, Nipsco: (1) conducted an analysis of the requirements of the Accounts

Payable Clerk position and concluded that the position required 4 hours of steady

data entry, 2 hours of writing, stapling, and 1.5 hours organizing work, making

phone calls, and filing daily; (2) consulted and evaluated the various medical

restrictions Mason's physicians had imposed; and (3) compared Mason's restrictions

with the essential functions listed in the"Physical Capacity Requirements of

Essential Job Functions of Accounts Payable Clerk" form. 

According to Nipsco, the essential functions of an Accounts Payable Clerk

required a full work day of "use of hands to grasp, handle or feel" as well as

continuous "reaching with hands and arms." Nipsco, however, found it difficult to

reconcile this requirement of the job with Mason’s physical restrictions. 

Specifically, in evaluating Mason's medical restrictions, Nipsco was unclear

whether the restrictions on repetitive movements encompassed the repetitive

movements inherently associated with typing and computer usage. In addition,

although Drs. Svetic and Trimboli both prohibited Mason from engaging in

repetitive movements, one doctor stated that the restriction was permanent while

the other stated that the restrictions were "most likely not permanent."

When Nipsco pressed Mason’s physicians for additional detail and

clarification, Dr. Svetic stated that Mason could use a computer keyboard but that

she should continue to "perform light duties which means she should avoid

repetitive movements, carrying heavy objects, and using a heavy-duty staple

remover." Dr. Trimboli restricted Mason to “no lifting or pulling staples." According

to Nipsco, these additional details still failed to clear up Nipsco's confusion

regarding whether Mason could perform the essential duties of the Accounts

Payable Clerk that included the repetition involved in typing and using a computer. 

Finally, Nipsco presented both doctors with a detailed description of the physical

duties required of the Accounts Payable position and asked both to indicate

whether Mason could perform the specific duties. By this time both doctors

responded that Mason could perform the essential duties of the position, Nipsco had

already independently concluded that, given the repetitive nature of the work,

Mason would be unable to perform the essential functions involved in the job and

subsequently filled the position. 

II. ANALYSIS

We review de novo a district court's grant of summary judgment. Kupstas v.

City of Greenwood, 398 F.3d 609, 611 (7th Cir. 2005). Claims of discrimination

under the ADA can be proven through either direct or indirect evidence. Pugh v.

City of Attica, 259 F.3d 619, 625 (7th Cir. 2001). Given that Mason does not

provide any direct evidence of disability discrimination, she must proceed under the
No. 03-4183 Page 4

indirect burden-shifting method. McDonnell Douglas Corp. v. Green, 411 U.S. 792,

802-04 (1973); Pugh, 259 F.3d at 625-26. 

Mason alleges that Nipsco failed to make reasonable accommodations for her

known physical limitations, and instead gave the open Accounts Payable position to

another applicant. To state a prima facie case of failure to accommodate a

disability under the ADA, Mason must show: (1) she was or is disabled; (2) Nipsco

was aware of her disability; (3) she was otherwise qualified for her job; and (4) the

disability caused the adverse employment action. See Dvorak v. Mostardi Platt

Assocs., 289 F.3d 479, 483 (7th Cir. 2002); Bultemeyer v. Fort Wayne Cmty. Sch.,

100 F.3d 1281, 1284 (7th Cir. 1996). Once Mason has established a prima facie

case, the burden of production shifts to Nipsco to provide a legitimate,

non-discriminatory reason for Mason’s adverse employment action. Dyrek v.

Garvey, 334 F.3d 590, 598 (7th Cir. 2003); Silk v City of Chicago, 194 F.3d 788, 799

(7th Cir. 1999). Once Nipsco satisfies its burden, the burden shifts back to Mason

to show that Nipsco's explanation was pretextual. Dyrek, 334 F.3d at 598; Silk, 194

F.3d at 799.

The district court properly determined that there was sufficient evidence in

the record to establish a prima facie case of discrimination under the ADA,

precluding summary judgment. Turning then to Nipsco's legitimate,

non-discriminatory reasons for denying Mason the position, Nipsco explains that it

did not immediately offer the position to Mason when it became available because

Nipsco was unable to determine whether Mason could perform the essential

functions of the position due to her ambiguous physical restrictions. As a result,

Nipsco felt it needed to consult with her physicians further and clarify the extent of

her physical restrictions. Before Nipsco could fully clarify whether Mason could

perform the essential functions of the position, howeer, Nipsco decided to fill the

Accounts Payable Clerk position with a second viable candidate.

In response, Mason simply disagrees with the conclusions made and the

methodology used by Nipsco, but offers no evidence that indicates Nipsco lied or

acted with discriminatory animus. Specifically, Mason presents no evidence that

Nipsco acted dishonestly in assessing the essential functions of the position or in

seeking further clarification from her physicians. The fact that Mason disagrees

with Nipsco's description of the Accounts Payable Clerk position does not by itself

establish that Nipsco’s proffered reasons are a pretext. 

Pretext requires more than a showing that the decision was "mistaken, ill

considered or foolish.” Jones v. Union Pac. R.R., 302 F.3d 735, 743 (7th Cir. 2002)

(quoting Jordan v. Summers, 205 F.3d 337, 343 (7th Cir. 2000)). “[S]o long as [the

employer] honestly believes [its proffered] reasons, pretext has not been shown." 
No. 03-4183 Page 5

Jordan, 205 F.3d at 343. Moreover, federal courts do not sit as a "super-personnel

department that reexamines an entity's business decision and reviews the propriety

of the decision." Nawrot v. CPC Int'l, 277 F.3d 896, 906 (7th Cir. 2002) (citing

Stewart v. Henderson, 207 F.3d 374, 378 (7th Cir. 2000); Dale v. Chicago Tribune

Co., 797 F.2d 458, 464 (7th Cir. 1986)). In order to establish pretext, therefore, a

plaintiff must show that the employer's proffered explanation is factually baseless,

not the actual motivation for the decision, or insufficient to support the decision. 

Dyrek, 334 F.3d at 598. Ultimately the question is not whether the employer's

decision was correct, but rather whether the employer's explanations for its decision

are honest. Dvorak, 289 F.3d at 487.

Here, Mason has failed to show that Nipsco's proffered legitimate,

non-discriminatory reasons for not offering her the position of Accounts Payable

Clerk are false or dishonest. Mason cannot carry her burden of showing pretext by

making bare allegations or by merely disagreeing with Nipsco’s analysis and final

decision. Under the ADA, Nipsco is not required to hold a pool of jobs open, to

create a new position in anticipation of or in response to Mason's return, or to

"bump" other employees to create a vacancy for Mason. See Watson v. Lithonia

Lighting, 304 F.3d 749, 752 (7th Cir. 2002); Gile v. United Airlines, Inc., 95 F.3d

492, 499 (7th Cir. 1996). Since Mason has failed to rebut Nipsco's legitimate,

non-discriminatory reasons for not offering her the Accounts Payable Clerk

position, summary judgment in favor of Nipsco was appropriate.

III. CONCLUSION

For the reasons stated above, we AFFIRM the district court's grant of

summary judgment in favor of the defendant, Northern Indiana Public Service

Company.