Angelina Povey v. City of Jeffersonville, Indiana

The Honorable Sharon Johnson Coleman, District Judge for å
the United States District Court for the Northern District of
Illinois is sitting by designation.
In the
United States Court of Appeals
For the Seventh Circuit
No. 11-1896
ANGELINA POVEY,
Plaintiff-Appellant,
v.
CITY OF JEFFERSONVILLE, INDIANA,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Indiana, New Albany Division.
No. 4:09-CV-00161-RLY-WGH —Richard L. Young, Judge.
ARGUED FEBRUARY 10, 2012—DECIDED OCTOBER 4, 2012
Before RIPPLE and ROVNER, Circuit Judges, and
COLEMAN, District Judge.å
COLEMAN, District Judge. Angelina Povey injured her
wrist while working as an attendant at the City
of Jeffersonville (“Jeffersonville”) animal shelter.
Jeffersonville ultimately terminated Povey’s employ-

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2 No. 11-1896
ment. Povey brought this action under 42 U.S.C. § 12101
alleging that her termination violated the Americans
with Disabilities Act (“ADA”). The district court
granted Jeffersonville’s motion for summary judgment,
finding that Povey does not qualify as “disabled” under
the ADA. We affirm.
I. BACKGROUND
As one of three adoption assistant/kennel attendants
for the Jeffersonville animal shelter, Angelina Povey
was responsible for cleaning the shelter, feeding
and transporting the animals and assisting with animal
adoptions. In addition to these duties, the job description
for a kennel attendant noted that the position “may
require the [employee] to lift objects heavier than
30 pounds for extended periods.” Two or three adoption
kennel attendants worked from Monday through
Friday, one was assigned to work on Saturdays with
the office manager and one worked alone on Sundays
to tend to the animals. Given this schedule, Povey
was required to work both Saturday and Sunday of
every third weekend.
In October 2007, Povey injured her wrist moving a
dog from one cage to another at the animal shelter.
Povey reported her injury to her supervisor Harry
Wilder (“Wilder”). Povey eventually had surgery on
her wrist and underwent physical therapy to address
the impairment through August 2008.
Shortly after Povey’s injury, Kim Calabro (“Calabro”),
Jeffersonville’s Human Resources Director explained

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No. 11-1896 3
to Wilder that since the animal shelter did not have
light duty positions available there was no requirement
to provide Povey with an alternative assignment.
Wilder, however, allowed her to continue to work,
but limited her duties to assignments in the cat room
and the infirmary. He also exempted Povey from
working weekends because it would entail cleaning
the entire animal shelter alone, including some lifting
of heavy objects. Consequently, her co-workers were
forced to work weekends more frequently and began
to complain about the change in their work schedules.
In May of 2008, Povey reported to Calabro that one of
her co-workers, Louis Hancock, had begun to harass
her because of her work restriction and the effect it had
on his work schedule. An investigation by a
human resources consultant concluded that Hancock
was not illegally harassing Povey. Nevertheless, to
avoid friction, the animal shelter required Povey
and Hancock to work in separate locations at all
times. Failing to comply with this arrangement by
either Povey or Hancock could have led to their termina-
tion.
Despite the investigation and implementation of
the separation policy, Povey reported that she felt harass-
ment “behind her back” and filed a complaint
against Hancock on August 8, 2008. During the
same month, Jeffersonville received medical notice
of Povey’s permanent physical restrictions which prohib-
ited repetitive hand movement and no lifting, pushing
or pulling more than five pounds with her right arm.

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4 No. 11-1896
After notice of the restrictions, Povey was placed on
leave with pay to take effect on August 28, 2008.
Jeffersonville officials discussed Povey’s restrictions
and abilities, and determined that Povey could not
perform the essential functions of adoption kennel atten-
dant. Povey’s employment was terminated following
the meeting.
Following her termination, Povey filed a discrimination
claim with the EEOC and a complaint alleging two
claims of discrimination under the ADA against the City
of Jeffersonville. Povey asserted that Jeffersonville failed
to accommodate her disability and subjected her to dispa-
rate treatment. Povey also claimed she was terminated
in retaliation for her prior complaints of harassment
and discrimination. Jeffersonville filed a motion for
summary judgment as to both claims. The district
court granted defendant’s motion for summary
judgment and dismissed Povey’s claims finding that
Povey failed to demonstrate that she was a qualified
individual with a disability under the ADA. Specifically,
the court found that Povey failed to present
sufficient evidence to demonstrate that (1) her wrist
injury impaired her from completing daily tasks;
(2) her perceived impairment foreclosed her from accepting
a broad range or class of jobs; (3) she was perceived
unable to perform manual tasks; (4) she was a qualified
individual as defined under the ADA and (5) she
was terminated in retaliation for exercising her
rights under the ADA.

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No. 11-1896 5
II. DISCUSSION
Summary judgment is appropriate when 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). We review the district court’s
decision on summary judgment de novo, viewing
the evidence in the light most favorable to
Povey. See Powers v. Holland, 667 F.3d 815, 819 (7th Cir.
2011).
Povey argues that Jeffersonville terminated her employ-
ment in violation of the ADA, which prohibits discrimina-
tion against “a qualified individual with a disability
because of the disability.” 42 U.S.C. § 12112(a). The
Act defines a “qualified individual with a disability” as
“an individual with a disability who, with or without
reasonable accommodation, can perform the essential
functions of the employment position that such individual
holds or desires.” 42 U.S.C. § 12111(8). To avoid
summary judgment, a plaintiff must demonstrate a
general issue of material fact as to whether she is disabled,
whether she can perform the essential functions of
the position and whether she has suffered an adverse
employment action because of her disability. Nese v.
Julian Nordic Const. Co., 405 F.3d 638, 641 (7th Cir. 2005).
We must first consider whether Povey is disabled
within the meaning of the ADA. Miller v. Ill. Dept. of
Trans., 643 F.3d 190, 195 (7th Cir. 2011). The ADA
defines “disability” as (1) a physical or mental
impairment that substantially limits one or more of
the major life activities of the individual; (2) a record

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6 No. 11-1896
Povey does not challenge the district court’s findings that åå
Povey’s wrist injury did not constitute a disability under the
ADA and that Jeffersonville did not regard her as substantially
limited in her ability to perform manual tasks.
of such an impairment; or (3) being regarded as
having such an impairment. 42 U.S.C. § 12102(1). On
appeal, Povey only claims that Jeffersonville regarded
her as having a substantial impairment that limits
her abilities in the major life activity of working.åå
To meet the “regarded as” prong, the employer must
believe, correctly or not, that the employee has an impair-
ment that substantially limits one or more of the major
life activities. Cigan v. Chippewa Falls Sch. Dist., 388 F.
3d 331, 335 (7th Cir. 2004) (citing Sutton v. United
Airlines, 527 U.S. 471, 489, 119 S.Ct. 2139, 2149-50,
144 L.Ed.2d 450 (1999)). Further, when the major
life activity of working is at issue, an individual must
be regarded as “significantly restricted in the ability
to perform either a class of jobs or a broad range of jobs
in various classes as compared to the average
person having comparable training, skills and abilities.”
Powers v. U.S.F Holland, Inc., 667 F.3d 815, 820 (7th
Cir. 2011) (quoting 29 C.F.R. 1630.2(j)(3)).
To demonstrate that she is substantially limited in
the activity of working, Povey must provide “some
proof of the ‘number and types of jobs’ within the ‘geo-
graphical area to which the [claimant] has reasonable
access.’ ” EEOC v. Rockwell International Co., 243 F.3d
1012, 1018 (7th Cir. 2001) (citing Sutton, 527 U.S. at 492-
93). This evidence does not have to be presented in quanti-

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No. 11-1896 7
tative form, but does require the presentation of general
employment demographics or the approximate number
of jobs (e.g. ‘few’, ‘many’, or ‘most’) from which an individ-
ual would be excluded because of an impairment.
Rockwell Int’l, 243 F.3d 1012, 1018.
Povey asserts that testimony from Jeffersonville
officials indicating that she was not able to use her
right hand or perform shelter work because of her
lifting restrictions is evidence that Jeffersonville
regarded her as disabled under the ADA’s definition.
Specifically, Povey points to Calabro’s testimony
that “Povey wasn’t able to use her right hand”
and Wilder’s testimony that he believed that Povey’s
work restrictions prevented her from performing her
job and that Jeffersonville did not have a job for someone
with a permanent disability. Povey maintains that
these statements demonstrate Jeffersonville’s perception
that she was substantially limited to perform any
job involving manual labor and, therefore, are sufficient
evid en ce from w h ich a ju ry could con clu de
that Jeffersonville perceived her as excluded from a class
of jobs.
Povey relies on Armour v. Independent Limestone Co.,
2000 U.S. Dist. LEXIS 16650 (S.D. Ind. Mar. 16, 2000)
to support her argument. In Armour, the district
court denied defendant’s motion for summary judgment,
holding that certain statem ents made by the
company’s president demonstrated that the plaintiff’s
employer perceived him as being unable to perform
a broad range of jobs even without evidence of the

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8 No. 11-1896
actual number of jobs in the relevant geographical area.
Id. at *13-16. The court described the employer’s statements
as “sweeping,” and thereby excluding the plaintiff
from other classes of jobs beyond those at the company.
Therefore, the court found that the president’s state-
ments alone were sufficient to allow a jury to conclude
that the plaintiff’s employer regarded the plaintiff
as disabled under the ADA. Id.
Povey’s situation is distinguishable from Armour.
Here, none of the statements made by Calabro and Wilder
are so “sweeping” as to exclude Povey from a broad
class of jobs. Calabro’s and Wilder’s statements were made
in response to questions regarding Povey’s abilities
to complete tasks specific to the Jeffersonville animal
shelter. For example, Calder’s testimony that Wilder
told her that Povey “couldn’t do a whole lot of anything”
was directly in response to a question regarding what
he specifically said she could not do related to duties in
the animal shelter facility. Wilder’s statement that
Jeffersonville, “did not have a job for that” was also
in response to a specific question regarding whether
Povey could continue to perform her job at the
animal shelter given her permanent restrictions. It is
clear that, when taken in context, the statements only
refer to Povey’s abilities to work within the animal
shelter. The fact that Jeffersonville viewed Povey as
unable to perform the tasks required at the Jeffersonville
animal shelter tells us nothing about Jeffersonville’s
perception of her abilities to perform a broad range of
jobs. See Squibb v. Memorial Ctr., 497 F.3d 775, 782 (7th
Cir. 2002) (“A demonstrated ‘inability to perform a

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No. 11-1896 9
single, particular job’ does not render an individual
substantially limited in the major life activity of working.”)
Even viewing the facts in the light most favorable to
the non-moving party, the statements presented do not
constitute facts from which a jury can reasonably conclude
that Jeffersonville regarded Povey as disabled under
the ADA.
Having failed to meet her burden to demonstrate that
she was disabled under the ADA, Povey is not protected
by its provisions. Therefore, the Court need not
review Povey’s reasonable accommodation claim. See Id.
at 786. Without evidence that Povey is disabled,
Povey cannot survive summary judgment on her disparate
treatment and failure to accommodate claims under the
ADA.
Povey also argues that the district court erred in
granting Jeffersonville summary judgment with respect
to her ADA retaliation claim. The ADA prohibits employ-
ers from retaliating against employees who assert
their right under the act to be free from discrimination.
42 U.S.C. § 12203(a). “Employers are forbidden
from retaliating against employees who raise ADA claims
regardless of whether the initial claims of discrimination
are meritless.” Dickerson v. Bd. of Education, 657 F.3d
595, 602 (7th Cir. 2011). In a discrimination action,
a plaintiff can establish a valid case of retaliation using
either the direct or indirect method of proof. Kersting
v. Wal-Mart Stores, Inc. 250 F.3d 1109, 1117 (7th Cir.
2001). Povey attempts to establish a claim of ADA retalia-
tion under the direct method of proof. Under the direct

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10 No. 11-1896
method, to prove retaliation, the plaintiff must offer
evidence that: (1) she engaged in statutorily protected
activity; (2) the defendant subjected her to an adverse
employment action; and (3) a causal connection
existed between the two events. Id. There is no dispute that
Povey complained to Calabro about her co-worker Han-
cock making continuous harassing comments about
her wrist impairment and that plaintiff’s termination
constitutes an adverse employment action. The dispute
is whether there is a causal connection between the two
events.
Povey contends that the circumstantial evidence she
presented is sufficient for a jury to find a causal connection
between her complaints of harassment and her termina-
tion. First, Povey argues that the timing of her
discharge was suspicious, occurring just three weeks
after her third harassment complaint. Second,
Povey testified that Wilder threatened her job by informing
her that “he had no problem firing employees.”
Lastly, Povey contends that Jeffersonville’s actions sur-
rounding her discharge, including: holding a
meeting about her termination that failed to include a
person familiar with her job responsibilities, failing to
meet with her in person to explain her termination
and failing to offer her an accommodation as a result of
her permanent restriction, suggest a causal connection
between her complaints and termination.
The mere fact that Jeffersonville terminated Povey three
weeks after a complaint, by itself, is not sufficient to
create a genuine issue of material fact to support a retalia-

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No. 11-1896 11
tion claim. See Turner v. The Saloon, Ltd., 595 F.3d 679,
687 (7th Cir. 2010). Additionally, there is no evidence
to suggest that Wilder’s remark, that he had no problem
firing employees, motivated the decision to terminate
Povey. See Fuka v. Thompson Consumer Elecs., 82 F.3d 1397,
1403 (7th Cir. 1996). Lastly, Jeffersonville’s alleged
failures in relation to the manner in which it terminated
Povey are unrelated to her harassment complaint and
Jeffersonville was under no obligation to provide her
with a reasonable accommodation for her impairment
or engage in a face-to-face meeting or any interactive
process to address her abilities to perform her job
because Povey is not disabled under the ADA. These
facts are insufficient to establish a nexus between her
termination and her protected activity. Accordingly,
Jeffersonville is entitled to summary judgment on
Povey’s retaliation claim.
For the reasons stated herein, we affirm the granting
of defendant’s motion for summary judgment dismissing
each of plaintiff-appellant claims.
AFFIRMED.
10-4-12

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