Yindee v. Cch Inc.

• Decision Date: 11 August 2006
• Docket Number: No. 05-3069.,05-3069.
• Citation: 458 F.3d 599
• Parties: Malinee YINDEE, Plaintiff-Appellant, v. CCH INCORPORATED, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

458 F.3d 599

Malinee YINDEE, Plaintiff-Appellant, v. CCH INCORPORATED, Defendant-Appellee.

No. 05-3069.

United States Court of Appeals, Seventh Circuit.

Argued May 11, 2006.

Decided August 11, 2006.

John P. Madden (argued), O'Malley & Madden, Chicago, IL, for Plaintiff-Appellant.

Cathryn E. Albrecht (argued), Andrews, Koehler & Passarelli, Chicago, IL, for Defendant-Appellee.

Before POSNER, EASTERBROOK, and WOOD, Circuit Judges.

EASTERBROOK, Circuit Judge.

Malinee Yindee was hired in 2000 as a "Programmer Analyst" to work with a database system that CCH used in its business. She was fired three years later. A considerable part of the time in between had been spent on leave (whether paid disability leave or unpaid leave under the Family and Medical Leave Act) because of cancer and other ailments. Yindee's endometrial carcinoma led to a hysterectomy; she also suffers from vertigo and related problems such as frequent headaches. She attributes her discharge to these conditions (which she says CCH failed to accommodate) and to retaliation after she complained. CCH contends that it tried to accommodate Yindee and that the discharge stemmed from a decline in her performance. In this suit under the Americans with Disabilities Act, the district judge granted summary judgment to CCH. See 2005 WL 1458210, 2005 U.S. Dist. LEXIS 12769 (N.D. Ill. June 16, 2005).

The district judge concluded that Yindee is not disabled — she no longer has cancer, and her vertigo, which for about a year prevented her from driving, is not a disability under the approach of Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002). That left the retaliation claim, which the judge rejected because the evidence does "not lead inexorably to a conclusion that CCH retaliated against [Yindee] once she began filing grievances and EEOC charges." This analysis is faulty in two respects. The price of curing Yindee's cancer and saving her life was sterility, which assuredly is a "disability" under the ADA. See Bragdon v. Abbott, 524 U.S. 624, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998); 29 C.F.R. § 1630.2(h)(1). And Yindee need not show that the evidence "inexorably" supports her position. Cf. Ash v. Tyson Foods, Inc., ___ U.S. ___, 126 S.Ct. 1195, 163 L.Ed.2d 1053 (2006) (holding that a court of appeals erred by demanding evidence that "jumps off the page and slaps you in the face"). "Inexorability" is not required even in a criminal prosecution. It is enough to show (when responding to a motion for summary judgment) that a reasonable jury could find by a preponderance of the evidence in favor of the party opposing the motion. See Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Neither of these mistakes matters, however. Appellate review of a decision granting summary judgment is plenary, so we can (and will) make an independent decision under the proper standards.

Yindee's infertility is a disability, but nothing in the record implies that CCH held it against her. Her hysterectomy was performed in 2000, and the events of which she complains did not begin until 2002. Yindee did not ask for time off, or any other accommodation, so that she could adopt children. Cf. Erickson v. Board of Governors of Northeastern Illinois University, 207 F.3d 945 (7th Cir. 2000) (employee sought accommodation for medical and emotional problems related to fertility treatments).

When Yindee first sought an accommodation in 2002, it was on account of difficulty in reaching the office after her vertigo worsened and her physician told her to stop driving. Yindee proposed to work at home; CCH agreed to a telecommuting arrangement. Yindee stayed home for three weeks and split time between home and office for another ten weeks, using taxis or public transportation to commute. At the end of this three-month experiment, however, CCH concluded that Yindee was not being productive and insisted that she return to its offices full time.

The district judge concluded that vertigo is not a disability because "driving" is not a major life activity and balance problems did not themselves prevent Yindee from doing her job, or for that matter most other jobs. See Sinkler v. Midwest Property Management LP, 209 F.3d 678, 685 (7th Cir.2000); Chenoweth v. Hillsborough, 250 F.3d 1328, 1329-30 (11th Cir. 2001). Yindee does not disagree with this assessment but instead maintains that the vertigo is an aspect of a single disability caused by cancer. Yet her own physician calls the vertigo idiopathic — that is, a symptom without a known cause. Because no evidence in the record would allow a reasonable jury to find that Yindee's vertigo is an aspect of her genuine disability (infertility), she does not have a sound claim of disability discrimination under the ADA. (This means that we need not decide whether a medical condition or symptom associated with a disability must be accommodated independently, when the associated condition is not serious enough to be a disability on its own.)

That leaves the retaliation theory. See Burlington Northern & Santa Fe Ry. v. White, ___ U.S. ___, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006); Washington v. Illinois Department of Revenue, 420 F.3d 658 (7th Cir.2005); Sylvester v. SOS Children's Villages Illinois, Inc., 453 F.3d 900 (7th Cir.2006). Yindee filed three charges with the EEOC. The first came on September 17, 2002, after CCH had ended the telecommuting arrangement and informed Yindee that her performance was substandard. The second came on December 12, 2002, after Yindee had been told that she was at risk of discharge unless she successfully completed a performance improvement plan. The third, on January 23, 2003, asserted that she had been fired six days earlier in retaliation for the charge made in December. She never argued (at least not before the EEOC) that the discharge was a response to September's charge — but, even if she had, there would be problems in making a prima facie case, for by September Yindee's job already was in jeopardy. We do not have a...