Jennifer Shirk v. Trustees of Indiana University

In the
United States Court of Appeals
for the Seventh Circuit
____________________
No. 22-3212
JENNIFER S HIRK,
Plaintiff-Appellant,
v.
TRUSTEES OF I NDIANA U NIVERSITY , et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:21-cv-02395 — James R. Sweeney II, Chief Judge.
____________________
A RGUED S EPTEMBER 27, 2023 — DECIDED F EBRUARY 12, 2026
____________________
Before F LAUM , S YKES , and LEE, Circuit Judges.*
S YKES , Circuit Judge. Jennifer Shirk worked for Indiana
University in its eLearning Design and Services Group, a unit
that assists the university’s educational departments and pro-
gram offices with online instructional resources. Shirk was
hired as an intern and moved up the ranks to become an
* Circuit Judge Joel M. Flaum died while this case was pending, so the
appeal is resolved by a quorum of the panel under 28 U.S.C. § 46(d).

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2 No. 22-3212
online instructional designer. After two and a half years of
service, she was fired for unprofessional conduct. Specifically,
she sent a series of emails to high-level university officials
needlessly alerting them to a temporary problem in her unit—
one that a supervisor had already resolved—and accusing her
supervisors of mismanagement. Escalating an internal matter
to the upper echelons of university leadership was considered
insubordinate and a breach of professional protocol.
Shirk contends that she was fired for taking medical leave
and requesting accommodations for her mental-health condi-
tions, including obsessive-compulsive disorder and post-
traumatic stress disorder. She sued university officials, rais-
ing discrimination and retaliation claims under the Rehabili-
tation Act and the Family and Medical Leave Act (“FMLA”).
The district judge entered summary judgment for the defend-
ants on all claims.
On appeal Shirk presses only her retaliation claims. She
argues that the judge applied the wrong causation standard
and that her evidence is sufficient to proceed to trial when
evaluated under the correct law. Our standard of review is de
novo, so we have given the case a fresh look without regard
to any legal misstep in the decision below. The result is the
same. Under the correct causation standard, the summary-
judgment record does not support Shirk’s claim that she was
fired in retaliation for asserting her statutory rights.
I. Background
In September 2018 Jennifer Shirk began working as an in-
tern in the eLearning Design and Services Group at Indiana
University. Housed within the IT Department, the eLearning
Group supports internal university “clients”—educational

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No. 22-3212 3
departments and programs across all university campuses—
in the development of web-based instructional resources for
online learning. Though the eLearning Group serves the en-
tire IU network, the largest share of its work—and thus most
of its funding—comes from the Office of Online Education.
A month after hiring Shirk, Anna Lynch, an eLearning
Group manager, promoted her from her temporary intern
position to a full-time job as an associate instructional
designer. Within four months Shirk advanced again. In
February 2019 Lynch moved Shirk up a step to a position as
an online instructional designer, a job that came with
increased duties and expectations. In her new role, Shirk was
required to assume more responsibility for design projects
and complete her work with less supervision and support.
After just seven months in her new assignment, Shirk and
Erin Tock, a coworker, submitted a joint request asking that
their positions be reclassified to higher ranks on the
university’s pay scale. At the time Tock was an associate
instructional designer, one level below Shirk on the pay scale.
In September 2019 the two women approached Peter Ermey,
their mutual supervisor, and asked that their respective
positions be bumped up a step on the pay scale.
The next month, while her reclassification request was still
pending, Shirk sought the first of several extended periods of
FMLA leave. In October she requested leave from October 29
to January 1, 2020, for treatment of her obsessive-compulsive
disorder and post-traumatic stress disorder. Her leave
request was approved.
During Shirk’s absence, Tock took on much of her work
and performed it successfully. Because Tock was effectively

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4 No. 22-3212
functioning as a designer at Shirk’s level, Ermey eventually
recommended that the human-resources department grant
her reclassification request. Shirk’s request was not similarly
justified, however. Ermey and Lynch determined that
additional evaluation was needed because Shirk lacked
evidence that her duties exceeded those of a typical designer
at her level.
Shirk returned to work in mid-January, though with re-
strictions. The COVID-19 pandemic arrived in March 2020,
about a month after Shirk was cleared to work without re-
strictions. The public-health emergency created unprece-
dented operational challenges and enormous financial
uncertainty for the university. IU imposed a hiring freeze, and
Shirk’s reclassification request was put on hold.
In June 2020 Shirk complained about her stalled
reclassification request to James Peltz, an official in the
human-resources department who was assigned to her unit.
She asserted that her pay was not commensurate with her
duties and that gender-based pay inequity was to blame. Peltz
investigated and determined that Shirk’s compensation was
in line with her duties and not discriminatory.
In September Shirk requested and received another
extended period of FMLA leave from September 14 to
October 16, 2020. This leave request was unexpected. Shirk’s
sudden absence created operational hardships for the
eLearning Group because her ongoing projects had to be
reassigned and her lack of notice left her unit managers
scrambling to cover her work. Indeed, Lynch learned of
Shirk’s FMLA leave not from Shirk herself but from a client
who emailed Lynch asking about plans for covering Shirk’s
work during her absence. That led Lynch and Justin Zemlyak,

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No. 22-3212 5
the newly appointed director of the eLearning Group, to
complain to human resources that Shirk had failed to inform
them of her impending leave.
On September 28, while on FMLA leave, Shirk filed
another complaint with human resources reiterating her
allegations about her stalled reclassification request and
adding a claim of disability discrimination. She also alleged
that Lynch was bullying her and asked that she not be
required to report to her. This latest complaint was assigned
to David Duncan, another human-resources professional.
When Shirk returned from FMLA leave in mid-October,
Duncan notified her that he had investigated her allegations
and determined that no one in the eLearning Group had vio-
lated university policy. He advised her that if she wanted a
more fulsome review of her discrimination allegations, she
could file a formal complaint with the university’s Office of
Institutional Equity.
During her tenure in the eLearning Group, Shirk also
sought and was granted accommodations for her disabilities.
In the fall of 2019, she asked for a refrigerator and microwave
at her workspace; that request was granted. In December 2020
she submitted a long list of additional requested
accommodations, including: (1) the continued ability to work
remotely; (2) a flexible work schedule and hours; (3) at least
one business day advance notice for meetings with her
leadership team, together with a written agenda for the
meeting; (4) a support person at meetings with her leadership
(she proposed Christy Cavanaugh, a supervisor who served
above Ermey but below Lynch in the unit organization chart);
(5) the use of a shared, virtual document system (like Google
Documents) to communicate with colleagues and supervisors

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6 No. 22-3212
on project assignments, with clear and consistent
communications and express statements of expectations for
each person’s role in the project; and (6) “transparency”
regarding her job performance and feedback.
The sheer breadth of this request came as a surprise to her
unit managers and required several weeks to evaluate and
resolve through the university’s interactive process. To Lynch
in particular, Shirk’s request seemed less an accommodation
than a request for a demotion in rank. Several of Shirk’s
proposed accommodations required a level of supervision
and flexibility associated with her previous position as an
associate instructional designer, which she willingly gave up
when she was promoted to the more independent position of
online instructional designer. Zemlyak, the eLearning
Group’s director, called Shirk’s proposed accommodations
“ridiculous” because implementing them would disrupt the
eLearning Group’s well-established practices.1
While the interactive process on her request for accommo-
dations was still underway, Shirk sought and received a few
more days of FMLA leave.2 When she returned in January
1 Zemlyak later clarified this statement, explaining that he had assumed
that Shirk’s accommodations would extend to everyone in the eLearning
Group. If limited to Shirk, he agreed that they imposed a minimal burden.
2 Around this time, Jim Peltz, the human-resources official who handled
Shirk’s initial complaint about her stalled reclassification request, reen-
tered the picture. The timing and details are vague, but he testified in dep-
osition about a disagreement he had with Carol Barnett, who was then
Senior Associate General Counsel in IU’s General Counsel’s Office. The
conflict between the two predates and appears to be largely unrelated to
the events in this case, but at some point they clashed over a possible plan
to assign Shirk to a new supervisor (presumably to address her concerns

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No. 22-3212 7
2021, she filed a formal complaint with the Office of Institu-
tional Equity. Just days later, she filed a discrimination charge
with the EEOC. Shirk alleged in both complaints that she had
encountered recurrent and escalating hostility because of her
disabilities and corresponding FMLA leave.
At the conclusion of the interactive process, the university
approved all of Shirk’s requested accommodations except for
a support person at meetings with her leadership team. Shirk
was notified of this favorable decision by letter on
February 22, 2021. She contested the denial of a support
person, but IU stuck to its position, explaining that providing
a support person was both unnecessary and burdensome. As
an alternative Shirk proposed that she be permitted to record
all meetings with her unit leadership. That request was
denied based on confidentiality concerns.
In early April the Office of Institutional Equity notified
Shirk that it had investigated her allegations of disability dis-
crimination and retaliation and found them to be unsubstan-
tiated. Two weeks later, the events that led to the loss of her
job unfolded.
about continuing to report to Lynch). Peltz testified that he prepared an
email informing Shirk of the assignment of a new supervisor, but Barnett
reversed course and told him to “change [his] story.” He declined to do so
and then resigned from IU. He also testified that Barnett had at some point
suggested searching Shirk’s email for information about the quality and
quantity of her work, but nothing came of the suggestion. He testified that
he left IU because certain unspecified circumstances revealed a “misalign-
ment” of values. He did not elaborate, though he did say that his limited
involvement in the Shirk matter was “the last straw.” Peltz’s conflict with
Barnett is too tangential and undeveloped to be relevant here. Barnett was
not involved in the decision to fire Shirk.

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8 No. 22-3212
At the time Shirk had been working with colleagues on a
project for the university’s online orientation program for
new students. On April 15 she met with Zemlyak, Ermey, and
others in her unit who were involved in the project. At the
meeting Zemlyak reported that the eLearning Group lacked
sufficient funding to cover the necessary licensing for the pro-
ject but said he would consult with Chris Foley, the head of
the Office of Online Education, to devise a solution.
Minutes later Shirk emailed Foley herself, asking him to
review the “urgent” funding dilemma, laying the blame at
Zemlyak’s feet, and questioning his competence to resolve the
problem. Meanwhile, Zemlyak reevaluated the eLearning
Group’s budget and, within 30 minutes, decided to
strategically reallocate funds to cover the necessary licensing
costs.
Zemlyak immediately communicated this decision to
Ermey, who passed the news on to Shirk. She agreed that
Zemlyak’s response was “appropriate” but then sent a series
of follow-up emails to Foley explaining that Zemlyak had
suddenly changed his mind and expressing concern that the
funding solution lacked adequate documentation.
That was not the end of the matter. The next day, April 16,
Shirk emailed both Foley and Julie Johnston, the Associate
Vice President of Learning Technologies and, more im-
portantly, Zemlyak’s boss. Her email detailed the previous
day’s events and explained how, in her view, Zemlyak and
Ermey had “mismanage[d]” the situation. Shirk accused
Zemlyak of conniving with Ermey, interrupting her during
the funding meeting, and wasting the eLearning Group’s re-
sources. And because Zemlyak had not yet provided written

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No. 22-3212 9
confirmation of his funding decision, Shirk emphasized that
she lacked clarity about how to proceed.
Johnston did not engage with Shirk. Instead, she sent a
rapid and terse response: “The situation has been resolved.”
Soon after, Ermey learned about Shirk’s emails to Foley and
Johnston and asked her to send him the entire email thread.
Zemlyak, for his part, called Shirk’s actions “completely out
of bounds.”
Shirk emailed Foley and Johnston again that afternoon.
Justifying her earlier messages to them, she complained that
the eLearning Group’s management had consistently tried to
silence her and that Ermey’s demand for her emails was more
of the same. Shirk also asserted at the end of this email that
she was a victim of discrimination and retaliation, which the
university had not yet adequately addressed. As a result, she
said, her “work environment remains hostile.” She closed by
asking if she needed to forward her email to Ermey.
On April 19, Kristopher Ying, a human-resources official,
notified Shirk that he had scheduled a due-process meeting to
discuss her emails. As the notice explained, Shirk had “shared
information not relevant to business needs with a key
client”—namely, Chris Foley, the head of the Office of Online
Education—and had inappropriately bypassed her unit
leadership in escalating the funding dilemma to both Foley
and Johnston. In the meeting that followed, Ying reviewed
each email with Shirk and asked why she had sent them.
Immediately after the meeting, Shirk sought and was
granted a fourth period of FMLA leave. That same afternoon,
Zemlyak decided to fire her because of her emails to Foley
and Johnston. On April 23 Ying sent Shirk a letter by email

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10 No. 22-3212
informing her that her “employment with Indiana University
is terminated as of today” based on “serious misconduct.”
Specifically, Ying’s letter cited Shirk’s April 15 and 16 emails
to university leadership—including “a key partner in the
Office of Online Education”—inappropriately discussing
“private matters” regarding her unit and “sharing
disparaging personal opinions” about her supervisors, which
“threaten[ed] client relationships.”
Shirk responded with this lawsuit against the trustees of
Indiana University and her supervisors Ermey, Lynch, and
Zemlyak. She raised a host of claims, including disability
discrimination, failure to accommodate, and retaliation in
violation of the Rehabilitation Act, 29 U.S.C. §§ 701 et seq., and
discrimination and retaliation in violation of the FMLA,
29 U.S.C. §§ 2601 et seq. Following extensive discovery, the
defendants moved for summary judgment. The district judge
granted the motion in its entirety, concluding that Shirk’s
evidence was insufficient for a reasonable jury to find in her
favor on any of her claims.
II. Discussion
Shirk has narrowed her case on appeal, focusing only on
her retaliation claims under the Rehabilitation Act and the
FMLA against IU’s trustees and Zemlyak.3 She argues first
that the district judge applied an overly strict causation
standard to her Rehabilitation Act retaliation claim and,
second, that she presented sufficient evidence to proceed to
trial on her retaliation claims under both statutes. We review
the judge’s summary-judgment order de novo, construing the
3 Shirk has abandoned her discrimination and failure-to-accommodate
claims and no longer proceeds against Ermey and Lynch.

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No. 22-3212 11
evidentiary record in the light most favorable to Shirk.
Trahanas v. Nw. Univ., 64 F.4th 842, 852 (7th Cir. 2023).
A. Causation Standards Under the Rehabilitation Act
To prevail on her claim that the university retaliated
against her in violation of the Rehabilitation Act, Shirk must
prove that (1) she engaged in statutorily protected activity;
(2) the university took a materially adverse action against her;
and (3) a causal connection exists between the two. Anderson
v. Donahoe, 699 F.3d 989, 995 (7th Cir. 2012). The judge cor-
rectly recited these familiar elements. Shirk contends, how-
ever, that when it came to evaluating the sufficiency of her
evidence on her retaliation claim, the judge mistakenly ap-
plied the “sole” causation standard for claims of discrimination
under the Act rather than the more lenient standard for a re-
taliation claim.
By its plain terms, the Rehabilitation Act imposes a
heightened “sole” causation requirement for a claim of
disability discrimination: the Act prohibits recipients of
federal funds from discriminating against disabled
participants “solely by reason of” their disability. 29 U.S.C.
§ 794(a). What this means, as relevant here, is that “if an
employer fires an employee for any reason other than that she
is disabled,” the claim necessarily fails. Brumfield v. City of
Chicago, 735 F.3d 619, 631 (7th Cir. 2013) (emphasis added).
But the same heightened causation standard does not
apply to a retaliation claim under the Act. In § 794(d), the
Rehabilitation Act otherwise incorporates the liability
standards of Title I of the Americans with Disabilities Act. The
ADA’s causation standard requires “only that the plaintiff’s
disability be a reason for the challenged action.” Conners v.

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12 No. 22-3212
Wilkie, 984 F.3d 1255, 1260 (7th Cir. 2021). And because this
standard mirrors the causation requirement in other
antidiscrimination statutes, we’ve explained that retaliation
claims under the Rehabilitation Act are subject to the same
causation analysis as claims under Title I of the ADA, Swain
v. Wormuth, 41 F.4th 892, 899 (7th Cir. 2022), and Title VII of
the Civil Rights Act, Burks v. Wis. Dep’t of Transp., 464 F.3d
744, 758 n.16 (7th Cir. 2006).
As such, Shirk must produce evidence that her “protected
activity was a ‘but for’ cause” of the decision to fire her—or,
in other words, that the University’s action “would not have
happened” without it. Kedas v. Ill. Dep’t of Transp., 149 F.4th
951, 958 (7th Cir. 2025). Importantly however, “[a] single
event can have multiple but-for causes.” Malin v. Hospira, Inc.,
762 F.3d 552, 562 n.3 (7th Cir. 2014).
Here the judge cited the correct legal standards for claims
under the Rehabilitation Act as an initial matter, but later in
his analysis applied the “sole” causation standard to both the
discrimination and retaliation claims under the Act. That was
a mistake, as the defendants essentially concede. The judge
instead should have analyzed the retaliation claim under the
but-for causation standard. Still, “we review judgments, not
opinions.” Rhodes v. Dittmann, 783 F.3d 669, 675 (7th Cir.
2015). Because our standard of review is de novo, we may
disregard the judge’s legal error and review the summary-
judgment record under the correct causation standard. See
Boss v. Castro, 816 F.3d 910, 916 (7th Cir. 2016).
B. Causation Evidence
Although Shirk’s two retaliation claims have different
statutory sources, they share the same basic framework. Like

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No. 22-3212 13
its counterparts in the Rehabilitation Act and the ADA, a
retaliation claim under the FMLA has “three familiar
elements: (1) the employee engaged in statutorily protected
activity; (2) the employer took adverse action against the
employee; and (3) the protected activity caused the adverse
action.” Freelain v. Village of Oak Park, 888 F.3d 895, 901 (7th
Cir. 2018).
The first two elements are undisputed here. This case, like
many others of this type, turns on proof of causation. Shirk’s
theory is that Lynch and Zemlyak were angry that she took a
second period of extended FMLA leave in the fall of 2020 and
their frustration increased when she submitted her request for
accommodations. And because they were becoming increas-
ingly “fed up” with her protected activity, they were looking
for a reason to fire her and used her emails to university lead-
ership about the funding dilemma as a pretext to do so.
This theory rests almost entirely on remarks Lynch and
Zemlyak made when they learned of her September 2020
FMLA leave and her list of requested accommodations. But
these isolated comments do not support an inference of a
causal link between her protected activity and the decision to
fire her. The record is clear that Lynch and Zemlyak expressed
frustration over the lack of notice of Shirk’s September 2020
medical leave—not the leave itself. That’s a distinction with a
difference. See Simpson v. Off. of Chief Judge, 559 F.3d 706, 714
(7th Cir. 2009). And Shirk’s reliance on Lynch’s negative reac-
tion to her request for accommodations is similarly mis-
placed. Lynch commented that Shirk’s list seemed more like
a request for a “demotion” in rank rather than an accommo-
dation because the flexible schedule and degree of support
she sought was the primary differentiator between her former

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14 No. 22-3212
position and her current one. To acknowledge this concern (as
Lynch did) is hardly to suggest that Shirk deserved to be de-
moted or fired. Finally, Zemlyak’s characterization of Shirk’s
list of requested accommodations as “ridiculous” was a stray
remark, not enough to call into question his stated reason for
firing her several months later—namely, her denigrating and
unprofessional emails to top university leadership.
Even if these isolated statements could be interpreted as
Shirk suggests, she lacks evidence connecting them to the de-
cision to fire her in April 2021. As an initial matter, Lynch had
no part in the decision. Rather, Zemlyak made the decision in
collaboration with Kris Ying, and nothing suggests that either
of them had Shirk’s protected activity in mind. Further,
Shirk’s requests were favorably received and for the most part
granted: IU approved every request for FMLA leave and all
but one of her requested accommodations. Moreover, her dis-
crimination complaints were thoroughly investigated and
found to be unsubstantiated. That she disagreed with the in-
vestigators’ conclusions makes no difference in the analysis.
Given the entire evidentiary record, no reasonable jury could
infer that her protected activity caused her termination.
Shirk resists this conclusion, suggesting that her emails to
Foley and Johnston were hardly a serious breach of profes-
sional protocol—not serious enough, in any event, to justify
the loss of her job. She highlights two factors that, in her view,
would permit a reasonable inference that the email episode
was a trumped-up pretext for retaliatory termination.
First, she notes that Christy Cavanaugh helped her draft
the email alerting Foley to the impending funding crisis. The
record is vague on this point, but we will set that problem
aside for the sake of argument. Presenting evidence that a

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No. 22-3212 15
similarly situated employee was treated more favorably is a
common method of proving that an employer’s reason for an
adverse employment action was pretextual—in other words,
a lie. Beverly v. Abbott Labs., 107 F.4th 737, 747 (7th Cir. 2024);
see Coleman v. Donahoe, 667 F.3d 835, 858–60 (7th Cir. 2012).
But Cavanaugh and Shirk are not similarly situated.
Cavanaugh occupied a managerial role two levels above
Shirk.
Where, as here, “the plaintiff is subordinate” to an alleged
comparator, the two are not similarly situated. Burks, 464 F.3d
at 751. Moreover, it’s one thing to help draft an email (if in-
deed Cavanaugh helped with Shirk’s email). It’s quite another
to attach your name and hit send. These differing circum-
stances distinguish Cavanaugh from Shirk, defeating any in-
ference of pretext. Coleman, 667 F.3d at 847.
Second, Shirk points to the last of her emails to Foley and
Johnston in which she mentioned her discrimination and
retaliation complaints and asserted that her “work
environment remains hostile.” Embedding a discrimination
complaint within otherwise-sanctionable misconduct is not
enough to create a triable issue of causation. That describes
Shirk’s approach here, and the district judge was right to
reject it. See Hall v. Bodine Elec. Co., 276 F.3d 345, 359 (7th Cir.
2002) (“An employee’s complaint … does not immunize her
from being subsequently disciplined or terminated for
inappropriate workplace behavior.”). Shirk’s passing
reference to her prior discrimination complaints in the last of
her insubordinate emails neither inoculates the conduct from
discipline nor supports a reasonable inference that the
discipline ultimately imposed was retaliatory. Id.

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16 No. 22-3212
In the end, Shirk “completely ignores the elephant in the
room”: the highly inappropriate nature of her emails to Foley
and Johnston. Davis v. Time Warner Cable, 651 F.3d 664, 675
(7th Cir. 2011). The defendants have never cited any other
basis for the decision to fire her. Indeed, when Zemlyak
learned about Shirk’s first email to Foley, he described it as
“completely out of bounds.” Understandably so. Shirk’s
emails accused her supervisors of mismanaging projects,
wasting resources, blanketing decisions in secrecy, and
miscommunicating expectations. And she inappropriately
raised these grievances to two top university leaders who
were many levels above her in the university’s organizational
structure—including the head of the division that supplied
most of the eLearning Group’s funding.
The mere fact that Shirk raised the specter of discrimina-
tion and retaliation at the end of this sanctionable course of
conduct is not enough to infer that IU’s reason for firing her
was pretextual. The judge properly entered summary judg-
ment for the defendants on Shirk’s retaliation claims.
A FFIRMED

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