In the
United States Court of Appeals
For the Seventh Circuit

No. 00-4309

Kevin Dvorak,

Plaintiff-Appellant,

v.

Mostardi Platt Associates, Inc.,

Defendant-Appellee.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 97 C 8461--Paul E. Plunkett, Judge.

Argued September 19, 2001--Decided May 10, 2002



  Before Easterbrook, Diane P. Wood, and
Williams, Circuit Judges.

  Diane P. Wood, Circuit Judge. Kevin
Dvorak was employed by Mostardi Platt
Associates, Inc. (Mostardi-Platt) from
1989 until the spring of 1997. Throughout
those years, he suffered from arthritis.
Dvorak’s arthritic pains would come in
flare-ups; there were periods during
which he was able to function quite well,
and other times when his mobility was
significantly restricted. In 1997, during
one of the flare-ups, Dvorak missed work
for a substantial number of days. Shortly
thereafter, he was terminated. Believing
that he lost his job because of his
physical disability, he filed suit
against Mostardi-Platt, alleging that he
had been terminated in violation of the
Americans with Disabilities Act (ADA), 42
U.S.C. sec. 12101 et seq. The district
court entered summary judgment in favor
of Mostardi-Platt. Although it found that
Dvorak was an individual with a
disability as defined by 42 U.S.C. sec.
12102(2) and that genuine issues of fact
existed as to whether he was qualified to
perform his job with or without a
reasonable accommodation, it concluded
that he was terminated for reasons
unrelated to his disability, and
therefore had no claim under the ADA. We
affirm.
I

  Mostardi-Platt is a company that
provides professional environmental
consulting, compliance, and testing
services. Initially hired as one of its
technicians, Dvorak eventually became a
Service Manager in the Clean Emissions
Monitoring department (referred to as the
CEM Services Group). In this position, he
performed administrative work and was
occasionally required to conduct field
work, such as on-site visits to clients
and supervision of the monitoring being
performed at various facilities. (Dvorak
disputes the prominence of field work
among his duties, but the percentage of
time he devoted to it, as opposed to the
fact that field work was one component of
the job, is not important.) In 1996 and
1997, Dvorak experienced health problems
in connection with his arthritis that led
him to take a large number of days off
from work. By March 1997, he had run out
of sick leave days and had to take two
weeks of vacation time to undergo
arthroscopic surgery on his knee. This
was unusual: the last time his arthritis
had affected him so strongly had been 15
years earlier.

  When he returned to work after the
surgery, Dvorak’s supervisor, Joseph
Macak, asked him to go to Peoria the fol
lowing week for a field assignment.
Dvorak refused, citing his arthritis and
the fact that he would still be on
crutches from the operation at that time,
and relying on a doctor’s note following
the operation that effectively confined
him to desk work. Dvorak also informed
Macak that the doctor had concluded that
Dvorak had a particularly severe form of
arthritis called ankylosing spondylitis
(AS). It is unclear-- though irrelevant
for present purposes--whether any doctor
ever so concluded. Although Dvorak was
never ultimately diagnosed with this
ailment, as opposed to a less severe form
of spondyloarthopathy, we mention his
allegation only in the interest of
presenting the facts in the light
mostfavorable to him.

  In early March 1997, before Dvorak took
his leave for the operation, Macak asked
him to prepare a memorandum outlining his
views on how to improve results in the
CEM Services Group. This request
reflected concerns about the productivity
of that Group on the part of both Robert
J. Platt, the company’s president and
sole shareholder, and Macak. Dvorak
turned in the requested memorandum on
April 1, 1997. It was not what Macak
expected. The memorandum itself is in the
record, and its tone is hardly
constructive. Among other things, Dvorak
wrote:

I want to start out be [sic] reiterating
my definition of insanity. Insanity is
doing the same thing you have always done
and expecting things to change! Mostardi
Platt has developed a new definition.
Mostardi Platt is doing less today then
[sic] it has ever done and is expecting
things to change. On the top of
everything else every time we turn around
we are burdened with tasks that make us
less efficient.

In short, the memorandum read more like a
tirade against the company than like a
constructive proposal for improving work
unit performance.

  Company management met shortly after
Dvorak delivered the memorandum to
consider the situation as a whole: his
disability, his performance, and his
attitude. They decided it would be best
for Dvorak to be placed on temporary med
ical leave under the Family and Medical
Leave Act (FMLA) program. On April 3,
1997, Dvorak was summoned to a meeting
with management to discuss, among other
things, the option of FMLA leave. Dvorak
resisted the idea, claiming that he could
do his job and thus that medical leave
was not appropriate. Just the previous
day, however, he had written Macak
stating that he "may never be able to do
the same kind of physical work" that he
had "been able to do in the past." At the
end of the meeting, it became clear that
the leave arrangement was not optional.
Platt, Macak, and a third company
official told Dvorak that he had to leave
the building that very day. Macak
accompanied him as he packed up his
personal belongings from his office and
departed. Although Dvorak characterizes
this event as his termination, he admits
that it was not the last of his dealings
with Mostardi-Platt.

  After his departure, the company sent
him documents to aid him in his
application for FMLA leave. Initially, he
took steps toward completing the required
forms. While Dvorak was in the process of
applying for medical leave, Mostardi-
Platt discovered that a laptop Dvorak had
used had been tampered with, that a
customer database had been improperly
saved on its hard drive, and that the
computer had been used for personal
purposes, including the sending of
communications to a competitor that were
derogatory of Mostardi-Platt. The company
made efforts to discuss the matter with
Dvorak, but Dvorak was uncooperative. He
refused even to meet to discuss the
alleged misuse of the laptop. Dvorak
continued, however, to communicate in
writing with the company. On April 28,
1997, he wrote to Susan Oswalt, Mostardi-
Platt’s Director of Human Resources, ask
ing "Sue, haven’t you really terminated
my employment?" He asked to be informed
of his status at the company by May 9,
1997. As of April 24, and thus by the
time of the April 28 letter, Dvorak’s
doctor had released him from the desk-
only restriction. He never mentioned this
to anyone at Mostardi-Platt; thus, the
company had no reason to believe that
Dvorak could once again perform field
work. All it had was an earlier e-mail he
had sent to Macak telling the latter that
he did not know when, if ever, he would
be back in shape.

  On May 6, 1997, Oswalt wrote Dvorak and
asked for a satisfactory explanation for
the alleged computer misuse. Dvorak never
responded. A further letter from
Mostardi-Platt’s counsel, dated May 21,
1997, expressed once again a willingness
to meet and discuss the issues that had
arisen with respect to Dvorak’s
employability. Again, Dvorak was not
forthcoming, and no such meeting ever
took place.

  On May 28, 1997, Mostardi-Platt notified
Dvorak by letter of his termination. The
letter specifically referred to the
damage that Dvorak’s misuse had caused to
the laptop, and further stated that the
inflammatory April 1 memorandum
"completely undermines our confidence and
trust in you."

II

  Even though some of the facts are in
dispute, we conclude that they are not
the critical ones. Naturally, as Dvorak’s
claim was dismissed on summary judgment,
we review the district court’s
determinations de novo and draw all
reasonable factual inferences in Dvorak’s
favor. Lalvani v. Cook County, 269 F.3d
785, 789 (7th Cir. 2001).

  Dvorak alleged in his complaint that he
was terminated in violation of the ADA.
While his firing did occur in close
temporal proximity to his operation and
the latest flare-up of his arthritis, we
agree with the district court’s
conclusion that Dvorak cannot prove a
case of disability discrimination. To
establish a prima facie case of
discrimination, a plaintiff must show
that (1) she is disabled within the
meaning of the ADA, (2) she is qualified
to perform the essential functions of her
job either with or without reasonable
accommodation, and (3) she has suffered
from an adverse employment decision
because of her disability. Bekker v.
Humana Health Plan, Inc., 229 F.3d 662,
669-70 (7th Cir. 2000). The district
court found that Dvorak had put enough in
the record to survive summary judgment on
the first two critera: the severity of
his arthritis for purposes of proving a
disability, and his ability to perform
the functions of his job. He faltered on
the most fundamental showing--that the
decision to terminate his employment was
discriminatory-- whether one
characterizes that as a failure to show
that his adverse employment action was
because of his disability, or as an
inability to show that Mostardi-Platt’s
stated reasons were pretextual.

  While "it is not always necessary to
march through" the entire process of
establishing a prima facie case,
articulating nondiscriminatory reasons,
and evaluating pretext, see Lesch v.
Crown Cork & Seal Co., 282 F.3d 467, 473
(7th Cir. 2002), we find it useful under
the circumstances to review the various
elements of the case that Dvorak would
have had to satisfy to survive summary
judgment.

  Dvorak first had to show that he is
disabled within the meaning of the ADA.
The ADA’s definition of disability
encompasses a "physical or mental
impairment that substantially limits one
or more of the major life activities," "a
record of such an impairment," or the
status of "being regarded as having such
an impairment." 42 U.S.C. sec. 12102(2);
29 C.F.R. sec. 1630.2(g). Major life
activities include "caring for oneself,
performing manual tasks, walking, seeing,
hearing, speaking, breathing, learning,
and working." 29 C.F.R. sec. 1630.2(i).
According to the Code of Federal
Regulations, a person is "substantially
limited" if, compared to the average
person in the general population, she
cannot perform or is limited in the
manner in or extent to which she can
perform one of the recognized activities.
29 C.F.R. sec. 1630.2(j)(ii); see also
Emerson v. Northern States Power Co., 256
F.3d 506, 511 (7th Cir. 2001). As a
general matter, arthritis has been
recognized as a relevant impairment.
Moore v. J.B. Hunt Transport, Inc., 221
F.3d 944 (7th Cir. 2000).

  Since Moore was decided, the Supreme
Court has spoken directly to the question
whether a particular impairment qualifies
as a "disability" for ADA purposes. See
Toyota Motor Mfg., Kentucky, Inc. v.
Williams, 122 S.Ct. 681 (2002). In that
case, the Court established a higher
threshold for the statute than some had
believed it contained. "’[S]ubstantially’
in the phrase ’substantially limits’ sug
gests ’considerable’ or ’to a large degree.’"
Id. at 691 (alteration in original). "The
word ’substantial’ thus clearly precludes
impairments that interfere in only a
minor way with the performance of manual
tasks from qualifying as disabilities."
Id. The Court did not question the idea
that walking is a basic enough activity
to qualify as a "major life activity"
under the statute. But Dvorak would have
to show that his arthritis "prevents or
severely restricts" him from walking, in
a permanent or long-term way. Id. See al
so Bragdon v. Abbott, 524 U.S. 624
(1998); 29 C.F.R. sec. 1630.2(i). It is
difficult on the present record to make
this determination: we would need to see
whether Dvorak’s arthritis met the
Williams standard. Alternatively, we
would have to decide whether Mostardi-
Platt regarded him as so severely limited
in his ability to walk (an alternative
method of proof under the statute that
Williams did not address). See 42 U.S.C.
sec. 12102(2); see also Bekker, 229 F.3d
at 670; Wright v. Illinois Dep’t of
Corrections, 204 F.3d 727, 730-32 (7th
Cir. 2000) (discussing the guidelines for
deciding when an employee is "regarded
as" having a disability).

  We will assume for the sake of argument
that Dvorak presented enough evidence to
create a question of fact on the
disability issue, though we express no
opinion on the point. Dvorak’s work had
been restricted to desk duty only, and
Mostardi-Platt discussed the limitations
imposed by the disability on Dvorak’s
work performance with its labor counsel.
Mostardi-Platt believed, as informed by
Dvorak, that he might never regain his
full ability to walk. The suggestion that
Dvorak be placed on long-term medical
leave also supports a finding that
Mostardi-Platt regarded Dvorak as being
physically impaired.

  Taking his disability as a given, we
must next determine whether there was a
genuine issue of fact about Dvorak’s
qualifications to perform the essential
functions of his job. Under the ADA, a
"qualified individual with a disability"
is one who, "with or without reasonable
accommodation, can perform the essential
functions of the employment position that
such individual holds or desires." 42
U.S.C. sec. 12111(8) (emphasis added).
See also Bultemeyer v. Fort Wayne Cmty.
Sch., 100 F.3d 1281, 1284-85 (7th Cir.
1996). The district court found that
there were factual disputes over the
exact description of his functions that
would have precluded a grant of summary
judgment on this ground alone. This is a
close call, but we once again assume
favorably (and generously) to Dvorak that
with the appropriate accommodations he
could have still performed either this
work or other work Mostardi-Platt might
have been required to find for him.

  We note, however, that Dvorak would have
great trouble reaching the jury on the
issue whether he could perform the job
without accommodation. However vague his
official job description might have been,
it is clear from the record that it
required a significant degree of field
work and mobility. Dvorak himself claimed
that he no longer possessed the physical
ability to perform those functions. His
later position that he could have
completed all his "essential duties" with
a desk position accommodation is of no
avail. Under the ADA, an employer is not
required to modify, reduce, or reallocate
the essential functions of a job to
accommodate an employee. Emerson v.
Northern States Power Co., 256 F.3d at
514. Mostardi-Platt concluded that a
"desk work only" medical restriction
could not be accommodated, given the
demands of Dvorak’s job. Thus, it appears
that without accommodation Dvorak could
not perform the job.

  What about with accommodations? There is
little suggestion that Dvorak sought any
other available positions, with the
exception of an off-handed mention that
he might be moved to an accounting
position that might have eventually
opened. He was deemed unfit for the
accounting position, and correctly so: as
he himself stated in an e-mail to Macak,
he had not as of that time even completed
the course work necessary to qualify as
an accountant. In addition, to the extent
that Dvorak would like to prevail on the
theory that Mostardi-Platt failed to
accommodate his disability, he runs into
problems with the interactive nature of
the accommodation process. See Beck v.
University of Wisconsin Bd. of Regents,
75 F.3d 1130, 1135 (7th Cir. 1996);
Bultemeyer, 100 F.3d at 1284, 1285.
Dvorak does not seem to have engaged in
good-faith negotiations about possible
accommodations: the threshold of
cooperation set by Bultemeyer requires
serious efforts from both parties. On the
other hand, one might see Dvorak’s ouster
from his office on April 3 as a signal
that Mostardi-Platt had already decided
that all accommodations were pointless,
and thus that further conversation would
be similarly futile. Giving Dvorak the
benefit of the doubt, we will assume that
this is the case and proceed.

  With Dvorak’s disability,
qualifications, and adverse job action
established, the burden of production
shifts to the employer to articulate a
nondiscriminatory motive for the
termination. McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802 (1973); Bellaver
v. Quanex Corp., 200 F.3d 485, 493 (7th
Cir. 2000); DeLuca v. Winer Indus., Inc.,
53 F.3d 793, 797 (7th Cir. 1995). If the
employer does so, the inference of
discrimination disappears, and the
plaintiff must prove by a preponderance
of the evidence that the employer’s
proffered reason was a pretext for
intentional discrimination. Id. The
ultimate burden to prove intentional
discrimination remains with the
plaintiff. St. Mary’s Honor Ctr. v.
Hicks, 509 U.S. 502, 508 (1993).

  Here, Mostardi-Platt urges that it
terminated Dvorak for at least two
nondiscriminatory reasons: first, his
overall poor performance record that
culminated in the insubordinate April 1
memo, and second, his misuse of the
laptop. Dvorak disagrees with the former
on the ground that the record shows he
was really an excellent employee; he
attacks the latter as after-acquired
evidence that cannot be used to justify
his termination. His point about after-
acquired evidence requires a short
digression into the question when his
termination occurred. Dvorak contends
that he was fired on April 3, 1997,
before the laptop problem was discovered,
and not on May 28, 1997. If he is
correct, Mostardi-Platt is left only with
the inflammatory memorandum and its
documentation about Dvorak’s
unsatisfactory performance as a reason
for his termination. If, on the other
hand, he was terminated on May 28,
Mostardi-Platt could rely also on the
discovery of his misconduct with respect
to the laptop. (We note that this dispute
makes less practical difference to the
case than Dvorak may think. If we used
the April 3 date, it is true that the
company could not rely on the after-
acquired evidence to justify that
termination date. But, as McKennon v.
Nashville Banner Publ’g Co., 513 U.S. 352
(1995), pointed out, after-acquired
evidence may be considered in the
determination of the proper remedy for an
unlawful act, and typically, backpay may
run only from the date of the unlawful
discharge until the date the employer
would have terminated the employee based
on the later evidence. Mostardi-Platt
knew about the laptop before the end of
April, and thus any backpay award would
have covered only the days between April
3 and the date of discovery.)

  Although the exact date of termination
is partly a factual question, the facts
must be evaluated in the light of the
proper legal test. Such a test has been
established in the context of statute of
limitations issues, where the employee
generally tries to show as late a date of
termination as possible. This court
adopted an "unequivocal notice of
termination" test in Mull v. ARCO
Durethene Plastics, Inc., 784 F.2d 284
(1986), agreeing with the approach
developed by the Fifth and the Third
Circuit. The Fifth Circuit rule provides
that termination occurs when the employer
shows, by acts or words, clear intention
to dispense with the employee’s services.
Payne v. Crane Co., 560 F.2d 198, 199
(5th Cir. 1977). In Bonham v. Dresser
Indus., Inc., 569 F.2d 187, 191 (3d Cir.
1977) the Third Circuit explicitly
rejected a rule that focused on an
official termination date, on the grounds
that, as the employer controls such
records, it would be unfair to the
employee to have the timeliness of her
claim determined by unilateral actions,
or statements as to such actions, by the
employer. See also Thurman v. Sears,
Roebuck & Co., 952 F.2d 128, 134 (5th
Cir. 1992) (termination occurs "when the
employee receives unequivocal notice of
his termination or when a reasonable
person would know of the termination.");
Tolle v. Carroll Touch, Inc., 977 F.2d
1129 (7th Cir. 1992) (endorsing
"unequivocal notice of termination" test
for actual date of termination).

  We too think that one must look at all
the circumstances to find out what the
employer really did, and when. To that
end, Dvorak urges us to find that his
orders to clear everything out of his
office on April 3 show that Mostardi-
Platt had no intention of ever allowing
him to return and that the company
implemented a de facto termination at
that time. But other undisputed evidence
in the record precludes this
interpretation of the April 3 events.
Both the outcome of the April 3 meeting
and the conduct of both parties in the
weeks that followed are inconsistent with
a reasonable understanding of the April 3
action as a final termination. At the
close of the meeting, Dvorak was told
that he was being placed on medical
leave; this is an action consistent only
with continued employment. Under the
FMLA, an employer has a number of
obligations toward an employee on leave,
whether or not the leave is with pay. We
are sure that Mostardi-Platt does not
extend FMLA leave to non-employees, or
recently terminated employees.
(COBRAbenefits are another matter, but no
one is arguing that this is what Dvorak
was pursuing.) Indeed, had Dvorak truly
believed that he had been terminated on
April 3, the steps he took to be placed
on FMLA leave would now smack of fraud.
To be eligible for FMLA benefits, one
must at a minimum be an "employee," not a
"recently terminated employee." See 29
U.S.C. sec. 2612(a)(1) (referring to
"eligible employee"). A termination
decision makes one ineligible for FMLA
benefits, and thus both Dvorak’s attempt
to obtain such benefits and Mostardi-
Platt’s efforts to process the paperwork
belie the contention that Dvorak was
terminated on April 3. See Brohm v. JH
Properties, Inc., 149 F.3d 517, 523 (6th
Cir. 1998).

  Further, between April 4 and May 27,
Dvorak asked for clarification as to his
employment status and was never told that
he had been terminated. Rather, Mostardi-
Platt’s inquiries as to his conduct with
respect to the laptop misuse suggest that
he was still considered an employee.
Dvorak’s own request for clarification,
likewise, tends to show that any notice
he might have received of his termination
was not all that unequivocal.

  While the district court gave short
attention to the timing question, it did
conclude in a footnote that May 28 was
the date of termination. We agree. Dvorak
neither treated the decision of April 3,
1997, as a termination, nor should he
have known that this is what Mostardi-
Platt was really doing to him. He had met
with management, he had told them of his
severe work restrictions, and management
suggested that he go on medical leave.
While the order to clear out his desk was
hardly a friendly gesture, this order
alone is simply not enough to support a
finding of the earlier termination date.
Consistent with Dvorak’s claim that he
did not know how long it would be before
he would recover (or if he ever would),
Mostardi-Platt might have asked him to
clean out his desk just to make space for
his temporary replacement. This does not
amount to a display of termination: that
is precisely the notion of "leave."

  With no competent evidence to support a
termination date earlier than May 28, the
laptop misuse is not information that the
employer learned after the termination;
it may thus be considered as one of
Mostardi-Platt’s nondiscriminatory
reasons for terminating Dvorak.
Furthermore, even if we are wrong about
all that and the April 3 date controls,
Mostardi-Platt may still rely on its
dissatisfaction with Dvorak’s performance
and its reaction to his inflammatory
memorandum of April 1, 1997. Dvorak
admitted that his productivity numbers
were far below expectations. Employers
cite poor performance and insubordination
frequently as reasons for dismissing
employees. In themselves, these reasons
have nothing to do with the employee’s
disability or any other forbidden
category.

  Once Mostardi-Platt offered its evidence
of nondiscriminatory motive, Dvorak still
had a chance to rebut its asserted
nondiscriminatory grounds for his
termination. But a rebuttal must tend "to
show that the employer’s reasons for some
negative job action are false, thereby
implying (if not actually showing) that
the real reason is illegal
discrimination. . . . [T]he question is
not whether the employer’s reasons for a
decision are right but whether the
employer’s description of its reasons is
honest." Kariotis v. Navistar Intern.
Transp. Corp., 131 F.3d 672, 677 (7th
Cir. 1997). The reasons proffered by
Mostardi-Platt easily survive this test.

  Dvorak has tried to meet that burden by
producing evidence tending to show that
he did not really misuse the laptop, and
that he was doing a good job. But that
evidence is unresponsive to the issue at
hand. Dvorak needed to show instead that
the decisionmakers at Mostardi-Platt did
not believe that he had misused the
computer and were lying when they
expressed dissatisfaction with his work.
As we have often noted, it does not
matter whether the employer was
ultimately wrong or unfair in the
determination, nor whether a jury in the
company’s shoes would have fired him.
Rather, Dvorak would need to show that
not even the employer believed the
reasons it proffered for firing him. He
can point to nothing that suggests that
the Mostardi-Platt officials did not
genuinely think they were dealing with a
problem of computer misuse. Furthermore,
Dvorak has not shown that the
decisionmakers were dissembling when they
characterized the April 1 memorandum as
totally unsatisfactory and something that
caused them to lose all confidence in
Dvorak. In short, he has no evidence from
which a trier of fact could legitimately
find that the company’s reasons were
pretextual.

III

  For these reasons, we Affirm the district
court’s grant of summary judgment in
favor of Mostardi-Platt.
