                            UNPUBLISHED ORDER
                         Not to be cited per Circuit Rule 53



            United States Court of Appeals
                             For the Seventh Circuit
                             Chicago, Illinois 60604

                             Argued December 13, 2005
                               Decided April 25, 2006


                                       Before

                     Hon. WILLIAM J. BAUER, Circuit Judge

                     Hon. MICHAEL S. KANNE, Circuit Judge

                     Hon. ANN CLAIRE WILLIAMS, Circuit Judge

No. 04-2783

RUTH A. SERINO,                              Appeal from the United States District
             Plaintiff-Appellant,            Court for the Northern District of
                                             Illinois, Eastern Division
      v.
                                             No. 01 C 8946
JOHN E. POTTER,
             Defendant-Appellee.             John C. O’Meara,
                                             Judge.

                                     ORDER

       Ruth Serino pursued claims of disability discrimination and retaliation
against the United States Postal Service (“USPS”) under the Rehabilitation Act of
1973, see 29 U.S.C. § 701 et seq. After Serino presented her case-in-chief to a jury,
the district court granted the USPS’s motion for judgment as a matter of law, and
Serino appeals. We affirm.

       Serino worked as a mail handler and letter carrier from 1968 through 1975,
when a work-related injury required her to assume the position of distribution clerk
at the Lock Box 80 postal unit. As a distribution clerk she was required to pick up
trays of mail, sort the mail at a work station, and then place the mail in customer-
No. 04-2783                                                                   Page 2

accessible lock boxes. In 1991 she was diagnosed with deep vein thrombosis (the
formation of blood clots in a deep vein) and peroneal palsy (the loss of the capacity
to lift the foot). Serino left work and received workers’ compensation benefits for a
year in 1992 and 1993. She returned to work but again left in December 1994—this
time indefinitely. During this second prolonged absence, the USPS notified her that
the union contract allowed only a one-year leave of absence before her job became
eligible for a replacement worker.

       Threatened with the loss of her job to a replacement worker, Serino returned
to work in November 1995, with the permission of her doctor. In January and April
1996, though, she was hospitalized because of a stroke and phlebitis (inflamation of
a vein) in her right leg, respectively. When she returned to work, Serino submitted
a doctor’s letter describing the accommodations required by her conditions,
including using a high-backed chair (for back support), walking every hour, and
avoiding standing in place for prolonged periods. In response the USPS assigned
her to the “Nixie” unit, which was in the same building as the Lock Box 80 unit, for
one month. This “light-duty” unit allowed injured workers to complete a full day’s
work by sitting at a table and processing damaged mail, which the USPS deemed a
simple task. Serino, however, objected to the transfer and filed an Equal
Employment Opportunity (“EEO”) complaint of discrimination. She stayed at the
Nixie unit for less than one week and returned to her former position at the Lock
Box 80 unit after she filed her complaint.

       In January 1997 Serino filed an application for disability retirement,
reporting that her ailments had left her unable to perform her job. She
acknowledged, however, that the USPS had accommodated her disability “by
complying with” her doctor’s recommendation that they provide a high-backed chair
and limit the amount of time she spent standing, walking, and lifting. Serino
stopped working in February 1997 after receiving a doctor’s letter stating that she
could no longer continue. The USPS granted her disability retirement effective
April 30, 1997.

       More than four years later, in November 2001, Serino sued. Though initially
pro se, she later retained present counsel, who alleged in a second amended
complaint that the USPS discriminated against Serino on the basis of a disability
when it failed to accommodate her conditions for two weeks in 1996 and then
retaliated by transferring her to the Nixie unit when she complained about the lack
of accommodation. Among other relief she asked for reinstatement and back pay for
the entire period from the time of the alleged discrimination in 1996 until
“the present.”

       The USPS did not move for summary judgment, and the case proceeded to
trial. Serino presented testimony from five witnesses (herself, her husband, and
No. 04-2783                                                                     Page 3

three former supervisors). She also introduced three medical notes she provided to
the USPS in 1996 and the USPS memo placing her on light duty at the Nixie unit.
The USPS introduced her 1997 application for disability retirement, in which she
represented that her ailments prevented her from walking or standing for more
than a few minutes, completing a day’s work, or performing her duties.

        Serino testified that, although the USPS attempted to accommodate her
disability, it failed to do so adequately. She testified that she would often return
from lunch to find her chair missing, but she offered no evidence concerning who
might have removed her chair. She also testified that, with the appropriate
accommodations, she could perform her job, but she was unable to explain why she
felt disabled to the point of requesting disability retirement (except to say that she
was somehow “harassed” into requesting disability retirement). Regarding her one-
week transfer to the Nixie unit, Serino testified that she gave her supervisors a
doctor’s note describing her necessary accommodations following her return to work
after the stroke. That note, her USPS supervisors testified, was why she was sent
to the light-duty Nixie unit. Serino further admitted that she understood the
transfer was intended to accommodate her disability, but she insisted that the
change in job description was a form of discrimination because other disabled and
injured workers were permitted to remain at the Lock Box 80 unit rather than
being transferred to the Nixie unit. Finally, she stated that, while at the Nixie
unit, she suffered retaliation in that she was not given an adequate chair or
supplies, such as tape and a glue stick.

      After Serino presented her witnesses, the USPS moved for judgment as a
matter of law under Federal Rule of Civil Procedure 50. The USPS argued,
primarily based on Serino’s own admissions in her application for disability
retirement, that she had conceded that she was unable to perform her job. The
USPS also maintained that Serino had failed to show that she suffered an adverse
employment action, that similarly situated employees without a disability were
treated differently, or that, for purposes of the retaliation claim, she had engaged in
protected activity.

       Serino responded that she was never reprimanded for poor performance, and
thus must have been performing her job adequately. She also suggested that the
transfer to the Nixie unit and the loss of wages in 1995 or 1996, due to an unpaid
leave of absence stemming from her disability, were adverse employment actions.
Next she argued that she had complained to her supervisors that she was not being
treated fairly, and that this protected activity motivated USPS supervisors to
transfer her to the Nixie unit. Finally she contended that other disabled employees
working at the Lock Box 80 unit did not have their chairs taken—evidence in her
mind that showed she was treated differently than similarly situated
No. 04-2783                                                                      Page 4

employees—and that the chair’s periodic disappearance demonstrated that the
USPS’s accommodation efforts were not in good faith.

       The district court granted the USPS’s Rule 50 motion. Though the court’s
ruling from the bench was not extensive, the court distilled Serino’s case into the
argument that she was unsatisfied with the USPS’s attempts to accommodate her.
The court found that there was no basis to believe the USPS intentionally denied
her the chair she required, and that Serino’s evidence established that the USPS
made appropriate efforts to accommodate her for “a very long time.”

       We review the grant of judgment as a matter of law de novo, viewing the
facts in the light most favorable to the non-movant. See Billy-Bob Teeth, Inc. v.
Novelty, Inc., 329 F.3d 586, 590 (7th Cir. 2003). A plaintiff establishes a prima facie
case of disability discrimination under the Rehabilitation Act by proving: “(1) that
she suffers from a disability as defined in the statutes; (2) that she is qualified to
perform the essential functions of the job in question, with or without reasonable
accommodation; and (3) that she has suffered an adverse employment action as a
result of her disability.”1 Jackson v. City of Chicago, 414 F.3d 806, 810 (7th Cir.
2005). The Act also incorporates the ADA’s proscription of retaliation, see 42 U.S.C.
§ 12,203(a) (ADA’s retaliation provision); 29 U.S.C. § 794(d) (incorporating
§ 12,203(a)); Hoyt v. St. Mary’s Rehab. Ctr., 711 F.2d 864, 867 (8th Cir. 1983)
(observing that retaliation is actionable under the Rehabilitation Act); see also
Mannie v. Potter, 394 F.3d 977, 979 (7th Cir. 2005) (addressing retaliation claim
against USPS). A retaliation claim “does not depend on the success of the plaintiff's
disability claim.” Guzman-Rosario v. United Postal Serv., Inc., 397 F.3d 6, 11 (1st
Cir. 2005). Serino can show retaliation if “she engaged in a statutorily protected
activity,” met the USPS’s “legitimate expectations,” and “suffered an adverse



      1
          The parties structured their Rule 50 arguments, and their briefs on appeal,
according to the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). Though the framework falls away after a full trial on the merits,
leaving only the question of the sufficiency of the evidence on appeal, Filipovich v. K
& R Express Sys., Inc., 391 F.3d 859, 863-64 (7th Cir. 2004), our review of the mid-trial
grant of a Rule 50 motion is “essentially identical” to our review of a grant of summary
judgment. See Harper v. Albert, 400 F.3d 1052, 1066 n.19 (7th Cir. 2005); cf. Mayer v.
Gary Partners & Co., 29 F.3d 330, 335 (7th Cir. 1994) (recognizing Supreme Court’s
“linking” of Rule 56 and Rule 50 standards). The McDonnell Douglas framework thus
remains helpful in determining whether a rational jury could have found for the
plaintiff, even though the parties had passed the pretrial phase. See, e.g., Wilson v.
AM Gen. Corp., 167 F.3d 1114, 1120 (7th Cir. 1999) (reviewing denial of defendant's
Rule 50 motion after conclusion of plaintiff's case-in-chief).
No. 04-2783                                                                   Page 5

employment action” as a result of engaging in the protected activity. Racicot v.
Wal-Mart Stores, Inc., 414 F.3d 675, 678 (7th Cir. 2005).

       Here, Serino argues that the district court erred by dismissing her
discrimination claim because her evidence established that she was qualified for her
job in the Lock Box 80 unit and that her transfer to the Nixie unit was an adverse
employment action. The parties do not dispute that Serino was disabled.
Regarding her retaliation claim, she contends that she proved her transfer to the
Nixie unit was in retaliation for her complaints about her treatment (complaints
that she characterizes as protected activity), and that other injured or disabled
employees who did not complain were allowed to remain in the Lock Box 80 unit.

       Serino’s claims for reinstatement and back pay fail because of her admission
in her application for disability retirement that she was unable to work. In the
application, Serino stated that she was “willing to work,” but that she was “unable
to complete a full tour of duty without becoming ill.” She also stated that she was
“often sent home by [sic] Medical Unit.” There is some dispute as to whether her
condition rendered her unable to work in November 1995, as the USPS argues, or
June 1996, which is the date that Serino’s supervisor noted that her “unacceptable
performance” began. Construing the dispute in Serino’s favor, it is nevertheless
true that she was unable to perform her work by the time she left the USPS in
February 1997. Moreover, her trial testimony did not provide a “sufficient
explanation” to resolve the “apparent contradiction.” Cleveland v. Policy Mgmt.
Sys. Corp., 526 U.S. 795, 805-07 (1999); see Feldman v. Am. Mem. Life Ins. Co., 196
F.3d 783, 790-91 (7th Cir. 1999) (requiring plaintiff to resolve inconsistency
between claim of complete disability for purposes of Social Security Disability
Insurance and claim of qualified employee status under ADA).

       The remainder of Serino’s claims—to the extent that they relate to events
occurring prior to June 1996—fail because she did not meet her burden of showing a
prima facie case of discrimination. Serino failed to show that she suffered an
adverse employment action, which is an element of both her discrimination and
retaliation claims. She argues here that her transfer to the Nixie unit was such an
action because it “was a significant change of her duty [from] when she was a
distribution clerk.” “While adverse employment actions extend beyond readily
quantifiable losses, not everything that makes an employee unhappy is an
actionable adverse action.” Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir.
1996). The short duration of Serino’s transfer is not relevant to the question of
whether it amounted to an adverse employment action, see Ezell v. Potter, 400 F.3d
1041, 1049 (7th Cir. 2005) (duration of adverse employment action effects degree of
damage suffered by plaintiff); see also Molnar v. Booth, 229 F.3d 593, 600-01 (7th
Cir. 2000), but her transfer—without more, such as a reduction in pay or
significantly diminished working conditions—falls below the level of an adverse
No. 04-2783                                                                    Page 6

employment action necessary to support a claim of discrimination or retaliation. Cf.
Washington v. Ill. Dept. of Revenue, 420 F.3d 658, 661 (7th Cir. 2005) (discussing
claim of discriminatory transfer under Title VII); Herron v. DaimlerChrysler Corp.,
388 F.3d 293, 301 (7th Cir. 2004). Moreover, Serino did not rebut the testimony of
the USPS supervisors—her own witnesses—that the transfer was an attempt to
satisfy her demand for accommodation of her medical conditions. Indeed, she
acknowledged during her testimony that the transfer was motivated by her request
for accommodation. Thus, even if the transfer could be construed as an adverse
employment action, see Sitar v. Ind. Dep't of Transp., 344 F.3d 720, 727 (7th Cir.
2004) (“job transfers . . . that lead to significantly diminished responsibilities and
substantially changed working conditions can be retaliatory actions”), it was not a
sanction motivated by her disability.

       We note in closing that other elements of Serino’s prima facie case are also
tenuous. Regarding the protected-activity prong of the prima facie test for
retaliation, Serino identified her filing of an EEO complaint as the protected
activity in her opening brief. But after the USPS pointed out that this was an
impossibility because she was transferred to the Nixie unit (the allegedly adverse
employment action) before she filed the EEO complaint, Serino shifted her
argument to suggest that she complained to supervisors prior to her transfer. A
complaint to a supervisor may be a protected form of expression, but here there is
no evidence that Serino’s actions were specific enough to constitute protected
activity, in the absence of a formal complaint. See Durkin v. City of Chicago, 341
F.3d 606, 614-15 (7th Cir. 2003). She also failed to identify any similarly situated
employees from outside the protected class (that is, employees without a disability
for purposes of the discrimination claim and employees who did not complain about
disability discrimination for purposes of the retaliation claim). She argues that
other disabled employees were allowed to remain at the Lock Box 80 unit and did
not have their chairs removed during lunch, but there is no specific testimony
regarding the identity of these employees, the nature of their duties, or their
propensity to lodge complaints to show that they were similar to her in all material
aspects. See Bio v. Fed. Express Corp., 424 F.3d 593, 597 (7th Cir. 2005).

                                                                         AFFIRMED.
