Robert E. Dickerson v. Board of Trustees of Community College District No. 522, Counties of St. Clair,…

In the
United States Court of Appeals
For the Seventh Circuit
No. 10-3381
ROBERT E. DICKERSON,
Plaintiff-Appellant,
v.
BOARD OF TRUSTEES OF
COMMUNITY COLLEGE DISTRICT NO. 522,
COUNTIES OF ST. CLAIR, MADISON, MONROE,
RANDOLPH, WASHINGTON, BOND, PERRY AND
MONTGOMERY and STATE OF ILLINOIS,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 08-CV-716—G. Patrick Murphy, Judge.
ARGUED JUNE 7, 2011—DECIDED SEPTEMBER 16, 2011
Before EASTERBROOK, Chief Judge, and BAUER and
WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. Robert Dickerson is a part-
time janitorial custodian for a community college in
Illinois and suffers from a mental disability. He brought

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2 No. 10-3381
this suit against his employer, alleging that he was dis-
criminated against because of his disability in violation
of the Americans with Disabilities Act.
In August of 2007 Dickerson was a part-time janitor.
He applied for full-time positions and was rejected. The
school evaluated Dickerson’s job performance in
December of 2007. He was rated “Unsatisfactory” in
three of seven categories. On February 7, 2008, Dickerson
filed a discrimination charge against the school with the
Equal Employment Opportunity Commission (EEOC),
stating that the school’s failure to hire him for a full-
time position was an act of unlawful discrimination.
On July 17, 2008, the school evaluated Dickerson’s job
performance again and decided to fire him. Dickerson
filed another charge of discrimination with the EEOC,
and added a retaliation claim. Later, he sued the school
in federal district court, and a summary judgment
motion was granted in favor of the school. Dickerson
appealed.
We find that the district court was correct in granting
summary judgment for the school on Dickerson’s dis-
crimination claim because the evidence in the record is
insufficient to show that Dickerson was meeting his
employer’s legitimate employment expectations. His
retaliation claim also fails because he did not point
to sufficient evidence that he was performing his job
satisfactorily. Therefore, we affirm.

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No. 10-3381 3
At oral argument we ordered the parties to file supplemental 1
briefing to clarify the number and names of defendants-appel-
lees in this case. In their joint supplemental briefing, the
parties stated that Dickerson intended, and the defendant
understood, that Dickerson sued only his employer, the “Board
of Trustees of Community College District No. 522, Counties
of St. Clair, Madison, Monroe, Randolph, Washington, Bond,
Perry and Montgomery and State of Illinois.” We will refer
to Dickerson’s employer, who is the defendant-appellee in
this case, as District 522.
I. BACKGROUND
Because the defendant-appellee prevailed on sum-1
mary judgment, we will recount the pertinent facts in the
light most favorable to the plaintiff-appellant, Robert
Dickerson. According to Dickerson’s psychological report
that was prepared for this litigation, Dickerson is mildly
mentally impaired. He has a WAIS-III Full Scale IQ of 67
(which “falls in the range of mild mental retardation”),
took special education classes in high school, and
has difficulty acquiring, retaining, and processing in-
formation. Although he is disqualified from certain
categories of jobs and professions because of his mental
disability, in 1999 he secured a position as a part-time
janitor for Belleville Area Community College District
522 (District 522). With three exceptions, Dickerson’s part-
time tenure proceeded without recorded incident. In
December of 2005, Dickerson filed a union grievance
against a supervisor who issued a warning claiming
that Dickerson refused to perform a work assignment.
In July of 2006, Dickerson received a warning for failing

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4 No. 10-3381
to secure job-related equipment, resulting in District 522’s
financial loss of $459.00 to replace the equipment. And
in April of 2007, Dickerson received a warning for
leaving his work site without first obtaining his super-
visor’s permission. Dickerson applied for full-time
janitor positions at District 522 in 2005 and 2006. He was
not hired for the positions. In August of 2007, Dickerson
again applied for full-time janitor positions with his
employer school. He was not hired for any of the posi-
tions. One successful part-time applicant was told that
if he wanted to be elevated to a full-time position, he
should “stay away from Bobby Dickerson.”
On October 17, 2007, Dickerson attended a meeting of
District 522’s Board of Directors and complained that he
was being discriminated against because of his personal
traits and a speech defect. Later he met with District
522’s attorney and repeated his belief that he was being
discriminated against.
On December 18, 2007, District 522 performed a writ-
ten evaluation of Dickerson’s work performance from
November 2, 2006 to November 3, 2007. It was the first
formal evaluation performed on Dickerson, and was
made pursuant to a 2006 policy change by District
522 that mandated written evaluations for part-time em-
ployees. The evaluation was completed by Kenny
Deffenbaugh, Assistant Director of the Physical Plant,
who was Dickerson’s direct supervisor, and the evalua-
tion timeframe corresponded with Dickerson’s employ-
ment anniversary, which was November 3, 1999. The
evaluation form had seven categories. In each category

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No. 10-3381 5
there were five possible ratings: Outstanding, Very Good,
Good, Satisfactory, and Unsatisfactory. Dickerson was
rated as Satisfactory in “Attendance & Punctuality,”
“Quality of Work,” “Knowledge of the Work” and “Atti-
tude.” In these categories, Deffenbaugh noted that
Dickerson “is consistently late for work and needs to
improve”; some “jobs need to be redone because of
not listening to the job instructions”; and Dickerson
“does only the bare minimum to meet job requirements.”
Dickerson was rated “Unsatisfactory” in the categories of
“Quantity of Work,” “Responsibility,” and “Relationships
With People.” In these areas, Deffenbaugh noted that
Dickerson “needs constant supervision or he will wander
off jobs”; and that “[m]any times when Bobby is required
to work with other staff members, they will request
someone else to work with. He leaves the area and puts
more burden on them.” Overall, Dickerson’s job perfor-
mance was rated as “Unsatisfactory”: “Bobby takes no
initiative to be a leader or a positive employee to try to
meet job requirements . . . . Bobby is the type of employee
that will take a lot of my time as a supervisor just to make
sure he is still working.” When he was presented with
the evaluation, Dickerson disagreed with it and refused
to sign it. Later he signed an affidavit declaring that his
attendance and punctuality were “Outstanding” during
the relevant time periods, and that he was “at least good”
in each of the remaining evaluation categories. In Janu-
ary of 2008, Dickerson filed a grievance with his union,
alleging that District 522 was discriminating against him
because of his union activities, and that his poor written
evaluation was a form of discriminatory, unjust discipline.

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6 No. 10-3381
On February 7, 2008, Dickerson filed a charge of dis-
crimination with the EEOC. He alleged that District 522
failed to promote him to a full-time janitor position
because it believed he was mentally disabled. During
the spring of 2008, some time after he filed his EEOC
charge, Dickerson approached Larry Friederich, who was
District 522’s Vice President of Human Resources.
Dickerson asked Friederich what he should be doing
differently to be promoted to a full-time position.
Friederich’s response included something along the lines
of “you are suing your employer and you should not be
suing your employer.” Later, in deposition, Friederich
admitted that he gave Dickerson this “common sense”
advice, and that he knew of Dickerson’s EEOC charge
when he gave it.
On July 17, 2008, Deffenbaugh performed a follow-up
evaluation of Dickerson’s work performance; it covered
the time period of December 19, 2007 through July 16,
2008. He noted that Dickerson showed improvement in
securing equipment, but that he had not improved on
being a team worker, communicating with his super-
visor before leaving a task, or completing his share
of the workload instead of shifting responsibilities to
his co-workers. He also noted that Dickerson had been
verbally warned about his unsatisfactory performance
several times, and that he (Deffenbaugh) had personally
talked to Dickerson on “many occasions” about what
he needed to do to be a better employee. Deffenbaugh
concluded that Dickerson had made insufficient progress
in correcting the problems noted in his December 2007
evaluation, and that his performance remained “Unsatis-

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No. 10-3381 7
factory.” He recommended that Dickerson be fired
because of poor performance. Indeed, District 522 fired
Dickerson, effective September 10, 2008. Later, in a re-
sponse to an interrogatory, District 522 admitted that
the people involved in its decision to fire Dickerson
included Deffenbaugh and Friederich.
Dickerson filed a union grievance over his termina-
tion. An arbitrator ruled that Dickerson be reinstated to
his part-time position because District 522 had violated
the parties’ collective bargaining agreement by failing to
employ progressive discipline in correcting Dickerson’s
behavior. District 522 did in fact reinstate Dickerson
to his part-time position. Dickerson also filed another
EEOC charge. He alleged that he had been fired in re-
taliation for filing his charge of discrimination against
his employer, and that the firing itself was a further act
of unlawful discrimination by his employer. He then
brought a civil suit against District 522 in federal district
court, alleging that the school broke the law when it
did not award him a full-time janitorial position, gave
him negative evaluations, and fired him. The district
court granted summary judgment in favor of District 522,
and Dickerson appealed to our court. At issue before us
is whether the district court erred in granting summary
judgment in favor of District 522.
II. ANALYSIS
Dickerson asserts that he was discriminated against
and terminated in violation of the Americans with Dis-
abilities Act (ADA). The district court dismissed

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8 No. 10-3381
Dickerson’s claims under summary judgment. We review
the court’s grant of summary judgment de novo. Moore
v. Vital Prods. Inc., 641 F.3d 253, 256 (7th Cir. 2011).
We construe all facts and draw all reasonable inferences
in favor of Dickerson. Id. Summary judgment is appro-
priate if the record shows there is no genuine issue of
material fact and District 522 is entitled to judgment as
a matter of law. Id.; Fed. R. Civ. P. 56(a). Summary judg-
ment in favor of District 522 was appropriate here.
A. Discrimination Claims Under the ADA
The ADA prohibits employers from discriminating
against disabled employees because of their disability.
42 U.S.C. § 12112(a). Congress enacted the ADA “against
a backdrop of pervasive unequal treatment . . . in-
cluding systematic deprivations of fundamental rights”
that people with disabilities were forced to endure. Ten-
nessee v. Lane, 541 U.S. 509, 524 (2004) (examining Title II
of the ADA). As the motivation and implementa-
tion behind the ADA was similar to that of the Civil
Rights Act of 1964, courts often look to the Civil Rights
Act for ADA guidance. See Serwatka v. Rockwell Automation,
Inc., 591 F.3d 957, 959 (7th Cir. 2010); Casna v. City of
Loves Park, 574 F.3d 420, 427 (7th Cir. 2009); Timmons v.
Gen. Motors Corp., 469 F.3d 1122, 1128 (7th Cir. 2006).
A disability is defined under the ADA as: (A) a
physical or mental impairment that substantially limits
one or more major life activities of the individual; (B) a
record of such an impairment; or (C) being regarded as

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No. 10-3381 9
having such an impairment. 42 U.S.C. § 12102(1). The
type of “major life activities” that must be substantially
limited to fall under the purview of the ADA include,
but are not limited to: caring for oneself, learning,
reading, concentrating, thinking, communicating, and
working. 42 U.S.C. § 12102(2). Viewing the facts of this
case in the light most favorable to Dickerson, his
mental impairments, including his recorded IQ of 67,
substantially limit his major life activities such that he
qualifies as a disabled person under the ADA.
A disabled plaintiff can prove disability discrimination
by using either the direct or indirect method of proof. Robin
v. Espo Eng’g Corp., 200 F.3d 1081, 1088 (7th Cir. 2000).
Under the direct method, a plaintiff can present either
direct or circumstantial evidence to meet its burden.
Buie v. Quad/Graphics, Inc., 366 F.3d 496, 503 (7th Cir.
2004); Bekker v. Humana Health Plan, Inc., 229 F.3d 662, 670
(7th Cir. 2000). Direct evidence requires an admission by
the decision maker that his or her actions were based
upon the prohibited animus. Buie, 366 F.3d at 503. How-
ever, employers are usually careful not to offer overt
remarks revealing discrimination, and circumstantial
evidence that allows a jury to infer intentional discrim-
ination is also permissible. Id.; Luster v. Ill. Dep’t of Corr.,
No. 09-4066, 2011 WL 2857262, at *5 (7th Cir. July 19, 2011).
The type of circumstantial evidence that a plaintiff
may produce to survive summary judgment includes:
(1) suspicious timing; (2) ambiguous statements or behav-
ior towards other employees in the protected group;
(3) evidence, statistical or otherwise, that similarly

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10 No. 10-3381
situated employees outside of the protected group system-
atically receive better treatment; and (4) evidence that
the employer offered a pretextual reason for an ad-
verse employment action. Diaz v. Kraft Foods Global, Inc.,
No. 10-3073, 2011 WL 3437028, at *4 (7th Cir. Aug. 8,
2011); Burnell v. Gates Rubber Co., 647 F.3d 704, 708 (7th
Cir. 2011).
Under the indirect method of proof, a plaintiff must
first establish a prima facie case of discrimination by
showing that (1) he is disabled under the ADA; (2) he was
meeting his employer’s legitimate employment expecta-
tions; (3) he suffered an adverse employment action; and
(4) similarly situated employees without a disability
were treated more favorably. Lloyd v. Swifty Transp., Inc.,
552 F.3d 594, 601 (7th Cir. 2009); see also McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973) (establishing stan-
dard under Title VII of Civil Rights Act). Once a plaintiff
has established a prima facie case, the defendant must
identify a legitimate, non-discriminatory reason for its
employment decision. Rooney v. Koch Air, LLC, 410
F.3d 376, 381 (7th Cir. 2005). If the defendant satisfies
this requirement, the plaintiff must then prove by a pre-
ponderance of the evidence that the defendant’s reasons
are pretextual. Lloyd, 552 F.3d at 601.
B. Retaliation Claims Under the ADA
The ADA prohibits employers from retaliating against
employees who assert their right under the act to be free
from discrimination. 42 U.S.C. § 12203(a). Employers are

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No. 10-3381 11
forbidden from retaliating against employees who raise
ADA claims regardless of whether the initial claims of
discrimination are meritless. Squibb v. Mem’l Med. Ctr., 497
F.3d 775, 786 (7th Cir. 2007). As in the discrimination
context, a plaintiff can establish a valid case of retali-
ation using either the direct or indirect method of proof.
Kersting v. Wal-Mart Stores, Inc., 250 F.3d 1109, 1117 (7th
Cir. 2001). To establish a case of retaliation under the
direct method of proof, a plaintiff must show (1) he
engaged in a statutorily protected activity; (2) he
suffered an adverse action; and (3) a causal connection
between the two. Casna, 574 F.3d at 426. Plaintiffs can
also elect to use the indirect, burden-shifting method
for retaliation claims, under which the plaintiff must
demonstrate that he (1) engaged in protected activity;
(2) was performing his job satisfactorily; and (3) was
singled out for an adverse employment action that simi-
larly situated employees who did not engage in pro-
tected activity did not suffer. Lloyd, 552 F.3d at 601. Once
a plaintiff satisfies his initial burden, the burden then
shifts to the defendant to present a non-invidious
reason for the adverse employment action. If the
defendant meets this burden, the plaintiff must then
demonstrate that the defendant’s proffered reason was
pretextual. See Jasmantas v. Subaru-Isuzu Auto., Inc., 139
F.3d 1155, 1157 (7th Cir. 1998).
C. Summary Judgment Properly Granted for District 522
We analyze Dickerson’s discrimination and retaliation
claims together because they fail for the same reason.

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12 No. 10-3381
Dickerson argues that District 522 discriminated against
him by refusing to promote him, giving him adverse job
evaluations, and firing him. He also argues that the
adverse job evaluations and termination constituted
illegal retaliation in response to his protected activity
in complaining about discriminatory acts and filing
a discrimination charge.
We consider first whether Dickerson’s claims survive
summary judgment under the direct method of proof,
and conclude that they do not. As we noted earlier,
Dickerson is a disabled person entitled to protection
under the ADA. And his acts of complaining about
alleged discrimination to District 522’s Board of Directors
and its attorney, and his filing of an EEOC charge of
discrimination, are protected under the ADA. In further
support of his claims under the direct method of proof,
Dickerson points to the statement made to him by the
Vice President of Human Resources, Friederich, that
he should not be suing his employer if he wanted to be
promoted. This statement was imprudent. In its answers
to Dickerson’s interrogatories, District 522 admitted
that Friederich was involved in the decision to fire
Dickerson. And, to the extent that Friederich’s statement
reveals a discriminatory intent on Friederich’s part, it is
attributable to District 522. See Staub v. Proctor Hosp., 131
S. Ct. 1186, 1194 (2011) (if a supervisor performs a dis-
criminatory act that is intended to cause an adverse
employment action, and act is proximate cause of
ultimate adverse action, then employer is liable).
However, the timing of Friederich’s statement, even
though timing is “often an important evidentiary ally of

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No. 10-3381 13
the plaintiff,” Lang v. Illinois Dep’t of Children and Family
Servs., 361 F.3d 416, 419 (7th Cir. 2004), in this case pre-
cludes its sufficiency in allowing Dickerson’s claim to
survive summary judgment under the direct method
of proof. Friederich’s statement lends little support to
Dickerson’s discrimination claim because it came after
he filed his EEOC charge. And although it is the
strongest piece of evidence Dickerson points to for his
retaliation claim, it too is insufficient, considering the
evidence demonstrating that it was Dickerson’s work
performance that was causally connected to his termina-
tion, as we discuss further in evaluating Dickerson’s
arguments under the indirect method of proof.
For a valid discrimination and retaliation claim under
the ADA, an employee must show that he was meeting
his employer’s legitimate employment expectations, and
that he was performing his job satisfactorily. Lloyd, 552
F.3d at 601. The record in this case demonstrates that as
far back as 2005, Dickerson received warnings from his
supervisors for failing to complete work assignments
or secure equipment, and leaving his work site without
obtaining his supervisor’s permission. In 2007, before he
complained of disability discrimination, at least one of
his co-workers was warned that he should stay away
from Dickerson if he wanted to be promoted to full-
time employment. In the first formal written evaluation
performed on Dickerson, he was rated as “Unsatisfactory”
in three of seven categories. In the categories in which
he was “Satisfactory,” his direct supervisor, Deffenbaugh,
said that Dickerson “is consistently late for work
and needs to improve”; some “jobs need to be redone

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14 No. 10-3381
because of not listening to the job instructions”; and
Dickerson “does only the bare minimum to meet job
requirements.” In the categories in which Dickerson was
“Unsatisfactory,” Deffenbaugh stated that Dickerson
“needs constant supervision or he will wander off jobs”;
and that “[m]any times when Bobby is required to work
with other staff members, they will request someone else
to work with. He leaves the area and puts more burden on
them.” Overall, Dickerson’s performance was rated as
“Unsatisfactory”: “Bobby takes no initiative to be a leader
or a positive employee to try to meet job requirements . . . .
Bobby is the type of employee that will take a lot of my
time as a supervisor just to make sure he is still working.”
In the follow-up evaluation that Deffenbaugh per-
formed approximately seven months later, he con-
cluded that Dickerson, in spite of receiving “many” verbal
reprimands to improve his work performance, remained
an unsatisfactory employee. He noted that although
Dickerson showed improvement in securing equipment,
he still failed to tell his supervisor that he was going to
leave a work site, and still shirked his work responsi-
bilities to the detriment of his co-workers.
In response to this evidence demonstrating that
Dickerson’s work performance fell below District 522’s
legitimate employment expectations, Dickerson points
to his affidavit where he declares that his work perfor-
mance ranged from “at least good” to “Outstanding.”
However, Dickerson’s own evaluation of his work cannot
be imputed to District 522, and is insufficient to permit
his case to survive past summary judgment. Compare
Berry v. Chicago Transit Auth., 618 F.3d 688, 691 (7th Cir.

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No. 10-3381 15
2010) (uncorroborated testimony from non-movant at
summary judgment stage can be evidence of disputed
material facts if based on personal knowledge or
firsthand experience), with Montgomery v. Am. Airlines,
Inc., 626 F.3d 382, 389 (7th Cir. 2010) (mere conclusory
statements are not evidence). And although Dickerson
disagreed with his negative evaluations, that does not
mean that the evaluations were the result of unlawful
discrimination. Brill v. Lante Corp., 119 F.3d 1266, 1273
(7th Cir. 1997) (“[T]he question is not whether the em-
ployer’s performance ratings were right but whether the
employer’s description of its reasons is honest.” (emphasis
in original) (internal quotation marks and punctuation
omitted)). Nor do the potentially inaccurate evaluations
necessarily denote disability discrimination, which is evi-
denced through Dickerson’s initial complaint to his
union that the negative evaluations were a form of
union activity discrimination.
“[P]erfection is not a requirement for protection” under
the ADA. Schandelmeier-Bartels v. Chicago Park Dist., 634
F.3d 372, 376 (7th Cir. 2011). But, in this case, to survive
summary judgment under the indirect method of proof,
Dickerson had to point to a genuine issue of material
fact as to whether he was a satisfactory employee who
was meeting District 522’s legitimate employment is-
sues. Because he did not do so, the district court was
correct in granting summary judgment in favor of
District 522.

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16 No. 10-3381
III. CONCLUSION
The district court’s order granting summary judgment
in favor of District 522 is AFFIRMED.
9-16-11

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