Malinee Yindee v. Cch Incorporated

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-3069
M ALINEE Y INDEE ,
Plaintiff-Appellant,
v.
CCH I NCORPORATED ,
Defendant-Appellee.
____________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 04 C 730—Charles P. Kocoras, Judge.
____________
A RGUED M AY 11, 2006—D ECIDED A UGUST 11, 2006
____________
Before POSNER, EASTERBROOK , and W OOD , Circuit Judges.
E ASTERBROOK , 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 attrib-
utes her discharge to these conditions (which she says CCH
failed to accommodate) and to retaliation after she com-
plained. CCH contends that it tried to accommodate Yindee
and that the discharge stemmed from a decline in her

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2 No. 05-3069
performance. In this suit under the Americans with Disabil-
ities Act, the district judge granted summary judgment to
CCH. See 2005 U.S. Dist. L EXIS 12769 (N.D. Ill. June 16,
2005).
The district judge concluded that Yindee is not dis-
abled—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 (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 (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., 126 S. Ct. 1195 (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 (1986); Anderson v.
Liberty Lobby, Inc., 477 U.S. 242 (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 hysterec-
tomy 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

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No. 05-3069 3
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 disabil-
ity 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, 126 S. Ct. 2405 (2006);
Washington v. Illinois Department of Revenue, 420 F.3d 658

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4 No. 05-3069
(7th Cir. 2005); Sylvester v. SOS Children’s Villages Illinois,
Inc., No. 05-4219 (7th Cir. July 12, 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 substan-
dard. 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 situation in
which a worker with an unblemished record complains
about discrimination and suddenly finds herself in hot
water.
Let us suppose, however, that a prima facie case of
retaliation has been made out, on the theory that CCH may
have been retaliating for Yindee’s request to telecommute
as an accommodation of her vertigo, or perhaps an internal
grievance that Yindee filed in August 2002 (though that
grievance did not allege disability discrimination, so it is
hard to see how it could be the foundation of a retaliation
claim under the ADA). When telecommuting began, her
paper record was stronger (though not as good as it had
been in 2000). We bypass the question whether Yindee has
shown that some comparable employee received better
treatment and turn to the employer’s explanation—for, once
a non-retaliatory explanation has been articulated, the
plaintiff must show that this explanation is a pretext for
discrimination. To do this the employee must establish that
the explanation is a lie, which permits a jury to infer that
the tale has been concocted to conceal an unlawful truth.
See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993).

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No. 05-3069 5
It is not enough to demonstrate that the employer was
mistaken, inconsiderate, short-fused, or otherwise be-
nighted; none of those possibilities violates federal law. See
Forrester v. Rauland-Borg Corp., No. 05-4650 (7th Cir. June
29, 2006) (collecting authority); Pollard v. Rea Magnet Wire
Corp., 824 F.2d 557 (7th Cir. 1987). Poor personnel manage-
ment receives its comeuppance in the market rather than
the courts.
CCH’s explanation is that Yindee not only reduced the
quantity of output in 2002 but also fell behind on quality.
Deadlines for her projects passed and other employees
had to step in. Supervisors also concluded that Yindee
had not kept up with the latest version of the database
package, and that when she failed to understand how the
software worked she called PeopleSoft to complain about
bugs and missing features rather than learning how the
problem could be solved.
One feature of the performance improvement plan
required Yindee to master the software package so that she
could solve problems correctly rather than call tech support
at PeopleSoft. This was the immediate cause of her dis-
charge, according to CCH. On January 15, 2003, Yindee
sent an email to Tennant asking whether she should call
PeopleSoft about a problem that she perceived in the
software and its documentation. Tennant concluded that
Yindee had misunderstood either the software or the
manual, had failed to demonstrate problem-solving skills
essential to her job, and recommended that she be dis-
missed, which CCH soon did.
Yindee has not even attempted to demonstrate that
Tennant is lying about his assessment of her work and the
reason for his recommendation. She does not, for example,
contend that the software or its manual was deficient in the
way her email of January 15 claimed (from which, if true,
it might be inferred that Tennant’s contrary assertion had

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6 No. 05-3069
been trumped up). Nor does she contend that she completed
projects on time (or at all) during the period between the
start of telecommuting in April 2002 and her discharge in
January 2003. Her arguments are entirely procedural. She
complains, for example, that CCH fired her before the
prescribed end of the performance plan, as if federal law
gave employees a right to serve out some minimum time
under probation. She also contends that because her home
computer was logged onto CCH’s network for an average of
six hours a day while she was telecommuting, CCH should
have been satisfied. Yet that’s like saying that as long as an
employee shows up at the office, the employer can’t com-
plain when she puts her feet up on the desk and does
sudoku puzzles all day. Yindee was being paid to do
programming, and if she didn’t accomplish assigned projects
it made no difference how many hours per day her computer
was a node on the firm’s network. The poor performance
continued after the telecommuting ended—or so CCH
maintains, and Yindee, who bears the burdens of produc-
tion and persuasion after the employer articulates a
nondiscriminatory explanation, has offered nothing in
response.
CCH’s explanation of its decision thus stands uncontra-
dicted. Tennant may have acted precipitately. He may have
been wrong in denigrating Yindee’s skills or productivity.
But on this record a reasonable jury could not find that he
lied to the court about his reasons. Yindee has not created
a material dispute about the pretext question, so CCH is
entitled to prevail as a matter of law.
A FFIRMED

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No. 05-3069 7
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-11-06

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