Corinne Cigan v. Chippewa Falls School District

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-4034
C ORINNE C IGAN ,
Plaintiff-Appellant,
v.
C HIPPEWA F ALLS S CHOOL D ISTRICT ,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 03-C-155-S—John C. Shabaz, Judge.
____________
A RGUED S EPTEMBER 23, 2004—D ECIDED N OVEMBER 5, 2004
____________
Before E ASTERBROOK , W OOD , and E VANS , Circuit Judges.
E ASTERBROOK , Circuit Judge. After 30 years’ service as
a physical-education teacher in Chippewa Falls, Wisconsin,
Connie Cigan retired in June 2003. She contends in this suit
under the Americans with Disabilities Act that retirement
was forced on her by the school district’s failure to accommo-
date her ailments—arthritis, bursitis, degenerating spinal
discs, scoliosis, and spondylitis. Suffering from these afflic-
tions, Cigan had begun to take more time off and come to
school late; she also needed the school’s other teachers to
cover her duties or adjust the length of their own class
periods while she rested. Cigan and the district disagreed

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2 No. 03-4034
about the adequacy of the school’s accommodations; for ex-
ample, Cigan insists that until May 2002 the chair supplied so
that she could take the breaks her physician recommended
was not appropriate to her condition. For its part, the school
district concluded that Cigan either had become a slacker
or had accumulated so many physical problems that she no
longer could do the job even with accommodations—in legal
lingo, that she was not a “qualified person with a disability”.
In January 2003 the superintendent notified Cigan that he
would recommend that the district not renew her contract
after the end of the 2002-03 school year. Cigan then retired,
which improved her benefits package. Now she would like
damages and additional pay on top of her retirement benefits.
The district court granted summary judgment in the school
district’s favor.
Cigan wants us to treat retirement as a constructive dis-
charge. (Otherwise it is not clear why she sued, as neither
lost wages nor prospective relief could be at issue.) Accord-
ing to Pennsylvania State Police v. Suders, 124 S. Ct. 2342,
2351 (2004), “unendurable working conditions” are function-
ally the same as a discharge. But Cigan does not contend that
her working conditions in January 2003 were unendurable,
nor did she depart then; she gave six months’ notice and left
at the end of the academic year. What she contends is that
working conditions are irrelevant when a prospect of
discharge lurks in the background. Reconciling that position
with the Supreme Court’s view in Suders is not easy. Instead
of trying to do so, Cigan insists that this circuit’s decisions
simply dispense with the standard approach once a discharge
is in prospect. She relies particularly on EEOC v. University
of Chicago Hospitals, 276 F.3d 326, 332 (7th Cir. 2002), in
which we wrote: “When an employer acts in a manner so as
to have communicated to a reasonable employee that she
will be terminated, and the plaintiff employee resigns, the
employer’s conduct may amount to constructive discharge.”

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No. 03-4034 3
Language such as this shows the danger of treating an
opinion’s exposition as if it were statutory text. This sen-
tence generalizes from a situation that met the normal
standard: an employee arrived at work only to find that her
office had been turned into a storage area, her belongings
had been packed up, and her services were no longer wanted.
We held that failure to sit in the corridor while waiting for
someone to say “you have been fired” did not preclude an
employment-discrimination suit. Just so when a professional
employee is relegated to menial tasks and the employer
makes it clear that no better treatment can be hoped for.
Compare Neal v. Honeywell Inc., 191 F.3d 827 (7th Cir. 1999),
with Lindale v. Tokheim Corp., 145 F.3d 953 (7th Cir. 1998).
Cigan was not turned out of her office or given tasks de-
meaning to her education and accomplishments. She held
the same post and duties that she had found satisfactory for
three decades.
This leaves her to contend that a notice of intent to com-
mence a process leading to discharge may be treated, at the
employee’s election, as a completed discharge, even if the
employer does not undermine the employee’s position,
perquisites, or dignity in the interim. That would take us a
long distance indeed from “unendurable working conditions”
and require courts to engage in speculation. Even if, as Cigan
contends, this superintendent’s earlier recommendations
had carried the day with the board of education, how could
a court know the probability that this recommendation would
do so? How, indeed, could a judge or jury be confident that
the superintendent would not have changed his mind once
Cigan responded to the initial proposal? Perhaps Cigan could
have shown that she was still able and willing to perform;
arrangements and assurances satisfactory to both sides may
have been possible. School districts give teachers several
opportunities to respond and justify their conduct, and the
ADA itself requires a collaborative process to come up with
accommodations; to assume at the outset that these ex-

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4 No. 03-4034
changes are pointless, as Cigan does, is to deny the virtue
of statutes and collective bargaining agreements that
provide for the exchange. Public schools must offer notice
and an opportunity to be heard as a matter of constitutional
law. See Cleveland Board of Education v. Loudermill, 470
U.S. 532 (1985). It would be odd for courts to say something
like: “Well, it’s all a sham, so we’ll treat the commencement
of the process as a final decision to discharge.” Then why
have the give-and-take at all?
The only way to know how matters will turn out is to let
the process run its course. Litigation to determine what would
have happened, had the employee contested the recommen-
dation, is a poor substitute for the actual results of real
deliberation within the employer’s hierarchy. A legal rule
that employees may leave at the first sign of dissatisfaction
also would be incompatible with their duty to mitigate
damages, as we observed in Lindale. Cigan, who has been
idle by choice since June 2003, is hardly in a position to claim
back wages for that period.
Nor would equating the initiation of discharge proceedings
with an accomplished discharge benefit workers as a group.
Employees have a maximum of 300 days to file a charge of
employment discrimination. That time runs from each dis-
crete discriminatory event. See National Railroad Passenger
Corp. v. Morgan, 536 U.S. 101 (2002). The discrete event in
a discharge situation is the formal announcement to the
employee that the job will come to an end. See, e.g., Chardon
v. Fernandez, 454 U.S. 6 (1981); Delaware State College v.
Ricks, 449 U.S. 250 (1980); Lever v. Northwestern University,
979 F.2d 552 (7th Cir. 1992). But if commencement of a
termination process is a constructive discharge, then the
outset rather than the conclusion is the discrete event, and
the time to file a charge is running.
Like other circuits, we have held that the clock starts with
the events that constitute a constructive discharge. See,

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No. 03-4034 5
e.g., Davidson v. Indiana-American Water Works, 953 F.2d
1058, 1059-60 (7th Cir. 1992); Flaherty v. Metromail Corp.,
235 F.3d 133, 138-39 (2d Cir. 2000); Draper v. Coeur
Rochester, Inc., 147 F.3d 1104, 1110-11 (9th Cir. 1998). So if
Cigan is right, and every notice of intent to commence a pro-
cess that could lead to discharge is a constructive discharge
right then and there, a lot of employees who stick it out will
be shocked to learn that, when the actual decision is made
and communicated, the time to file a charge of discrimina-
tion has already expired! The shock would be only slightly
less if the rule were limited to notices given by supervisors
or managers whose recommendations prevail more than
half the time (or, for that matter, more than 90% of the
time). Many employees still would be taken unawares, and
it would become quite complex to know when the “discrete
event” had occurred. Only after discovery would the em-
ployee learn how often any given manager’s recommenda-
tions were accepted, and so only then would the employee
know whether a “constructive discharge” had occurred and
the time to file a charge had started to run. No one other
than lawyers paid by the hour could benefit from such a
doctrine. We conclude, therefore, that the prospect of being
fired at the conclusion of an extended process is not itself a
constructive discharge.
One potential remedy remains to Cigan: compensatory
damages for mental distress or physical pain incurred while
she remained on the job. The district judge held, however,
that Cigan was not “disabled” and thus that the school dis-
trict did not need to accommodate her condition. Doubtless
arthritis and Cigan’s other conditions, if sufficiently advanced
or debilitating, can impair a person’s ability to perform one
or more major life activities. Cigan does not contend that
her conditions are that bad; she conceded at her deposition
that she can carry out the normal tasks of life. See Toyota
Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S.
184 (2002). Instead, she says, the school district regarded

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6 No. 03-4034
her as disabled, and for most statutory purposes a person
regarded as disabled has the same rights as a person who
is actually disabled. See 42 U.S.C. §12102(2)(C).
A person is “regarded as disabled” when the employer,
rightly or wrongly, believes that she has an impairment that
substantially limits one or more major life activities. See
Sutton v. United Air Lines, Inc., 527 U.S. 471, 489 (1999);
Dyke v. O’Neal Steel, Inc., 327 F.3d 628, 632 (7th Cir. 2003).
What does the record show about this possibility? All Cigan
says is that, because the district made some efforts at ac-
commodation, it must have regarded her that way. Thus the
chain of inferences becomes circular: an employer must
provide reasonable accommodations to a disabled worker,
42 U.S.C. §12112(b)(5); provision of any accommodation
shows that the employer regards the worker as disabled;
the worker therefore is (statutorily) disabled; and so the
worker must receive the full set of accommodations appro-
priate to a genuinely disabled person, not just the tentative
or incomplete steps the employer took voluntarily.
Cigan’s line of argument supposes that an employer offers
accommodation only if it thinks that the employee suffers
from a substantial limitation in a major life activity. The
“only if” is vital; if employers accommodate for other rea-
sons, then the fact of accommodation does not support an
inference that a given employer must have regarded a given
employee as disabled. Cigan does not try to justify the “only
if” clause, and it would not be a sound inference. Decent
managers try to help employees cope with declining health
without knowing or caring whether they fit the definition in
some federal statute. Managers also may respond to state
laws, local regulations, collective bargaining agreements,
and other norms that go beyond federal law. These may
create legal entitlements or practical expectations without
implying anything about “disability” under the ADA. Cigan
offers no reason to conclude that the principal at her school
knew, supposed, or cared anything about the effect of her

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No. 03-4034 7
conditions on “major life activities” when providing breaks,
chairs, and other assistance to continue teaching.
Because the record would not permit a reasonable trier of
fact to conclude that the school district regarded Cigan as
“disabled,” we need not decide whether the ADA requires an
employer to accommodate the demands of a person who is
regarded as disabled but lacks an actual disability. That is
a subject on which decisions are in conflict. Compare Williams
v. Philadelphia Housing Authority Police Department, 380
F.3d 751, 773-76 (3d Cir. 2004), and Katz v. City Metal Co.,
87 F.3d 26, 33 (1st Cir. 1996) (both holding that employees
regarded as disabled are not entitled to accommodation),
with Kaplan v. North Las Vegas, 323 F.3d 1226, 1231-33
(9th Cir. 2003); Weber v. Strippit, Inc., 186 F.3d 907, 916-17
(8th Cir. 1999); Workman v. Frito-Lay, Inc., 165 F.3d 460,
467 (6th Cir. 1999); and Newman v. East Texas State
University, 161 F.3d 276, 280 (5th Cir. 1998) (all holding
otherwise). Being regarded as disabled is a form of disabil-
ity under the statute and thus could in principle trigger a
duty to accommodate, but what must be accommodated: any
condition that the employer (wrongly) supposes to exist, or
only those disabilities that actually afflict the employee?
Suppose an employer wrongly believed that anyone who needs
glasses is disabled under the ADA. Nearsighted employees
at that firm might be “regarded as disabled,” but it is hard
to imagine that, despite Sutton (which held that correctable
eye problems are not actually disabling), the employer
would have to afford them the sort of accommodations ap-
propriate to a genuine disability. The extent to which employ-
ers’ errors in appreciating the extent of their workers’ real
disabilities create obligations to accommodate can be left for
another day, however, when the answer could make a
difference.
A FFIRMED

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8 No. 03-4034
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-5-04

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