Marcia Joanne McNeil v. the Salvation Army

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 26, 2019*
Decided February 27, 2019
Before
MICHAEL B. BRENNAN, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 18‐2508
MARCIA JOANNE MCNEIL,
Plaintiff‐Appellant,
v.
THE SALVATION ARMY, et al.,
Defendants‐Appellees.
Appeal from the United States District
Court for the Western District of Wisconsin.
No. 18‐cv‐129‐jdp
James D. Peterson,
Chief Judge.
O R D E R
Marcia Joanne McNeil, a deaf woman, contends that the Salvation Army and two
of its employees retaliated against her for filing a charge of discrimination against the
Salvation Army over 20 years ago. The district court dismissed her complaint at
screening for failure to state a claim. See 28 U.S.C. § 1915(e)(2). Because some of her
claims are time‐barred and the remaining allegations do not state a claim, we affirm.
* The appellees were not served with process in the district court and are not
participating in this appeal. After examining the appellant’s brief and the record, we
have concluded that the case is appropriate for summary disposition. See FED . R. A PP. P.
34(a)(2).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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No. 18‐2508 Page 2
McNeil submitted three filings that the district court considered together as her
final complaint. McNeil applied to work at a Salvation Army summer camp in 1996 as a
leader of arts‐and‐crafts and other recreational activities. The Salvation Army offered
her a job as a dishwasher. Believing that she was rejected for the other positions out of
hostility to her deafness, she filed a charge with the Equal Employment Opportunity
Commission against the Salvation Army alleging disability discrimination.
The alleged retaliation began in 1997. First, while attending a “Women Home
League Camp” with the Salvation Army Church in 1997, McNeil noticed that some
unnamed women were glaring at her and talking about her EEOC charge. McNeil also
felt that other attendees were unfriendly to her. She spoke with an employee to get him
to ʺdo something about this problem,ʺ but he ignored her request and kicked her out of
both the camp and its church. Second, about three years later, another employee
harassed her by driving past her home and appearing in a parking lot near where
McNeil was shopping. McNeil also alleges that the retaliation continued over the next
20 years, during which time unnamed people behaved suspiciously around her. For
example, cars and motorcycles occasionally have driven past her house; McNeil has
received dirty looks from people in grocery stores; a driver once used a cellphone to
photograph her; and she has received prank calls at home.
Viewing this “harassment” as retaliation for her 1996 charge, McNeil sued the
Salvation Army and the two employees under the Americans with Disabilities Act, 42
U.S.C. § 12101 et seq. After giving McNeil two chances to amend, the district court
dismissed her complaint at screening for failure to state a claim.
We review dismissals under 28 U.S.C. § 1915(e)(2) de novo and apply the same
standards that we apply to Rule 12(b)(6) dismissals, taking McNeil’s well‐pleaded
allegations as true and viewing them in the light most favorable to her. See Luevano v.
Wal‐Mart Stores, Inc., 722 F.3d 1014, 1027 (7th Cir. 2013). We begin with her allegations
about the unnamed people who have made dirty looks, placed unwanted calls, and
driven past her home over the last two decades. Only action taken by an employer that is
materially adverse to the plaintiff violates the anti‐retaliation provisions of the ADA. See
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006) (Title VII); Buie v.
Quad/Graphics, Inc., 366 F.3d 496, 504, n.3 (7th Cir. 2004) (construing ADA consistently
with Title VII). McNeil has not plausibly alleged that the Salvation Army knew about,
let alone approved or orchestrated, the unwanted traffic, glances, and phone calls she
described. Accordingly, these allegations fail to state a claim of retaliation against the
Salvation Army.

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No. 18‐2508 Page 3
The two discrete acts of retaliation that McNeil plausibly attributes to the
Salvation Army are blocked by the passage of time. Those two events are her ejection
from a Salvation Army camp and church in 1997 and harassment at home and while
shopping three years later. She had 300 days from each event to file an administrative
charge of retaliation, Majors v. Gen. Elec. Co., 714 F.3d 527, 536 (7th Cir. 2013), and 90
days after the resolution of the charge to sue. Lloyd v. Swifty Transp., Inc., 552 F.3d 594,
600 (7th Cir. 2009). Ordinarily a district court should not dismiss a suit based on the
affirmative defense of the statute of limitations. Cancer Found., Inc. v. Cerberus Capital
Mgmt., LP, 559 F.3d 671, 674 (7th Cir. 2009). But it may do so if the dates provided in the
complaint establish that the suit is “hopelessly time‐barred,” as is the case here. Id.
Finally, the claims that McNeil brings under the ADA against employees are
legally meritless. The ADA permits claims only against employers, not individual
employees. Williams v. Banning, 72 F.3d 552 (7th Cir. 1995).
AFFIRMED

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