                              In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 03-2256
THOMAS LARIMER,
                                                  Plaintiff-Appellant,
                                  v.


INTERNATIONAL BUSINESS MACHINES CORP.,
                                                  Defendant-Appellee.

                          ____________
             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
           No. 02 C 3160—Joan Humphrey Lefkow, Judge.
                          ____________
      ARGUED DECEMBER 11, 2003—DECIDED JUNE 3, 2004
                          ____________



  Before BAUER, POSNER, and EASTERBROOK, Circuit Judges.
  POSNER, Circuit Judge. Thomas Larimer, a salesman for
IBM, was fired and brings suit against the company under
both ERISA and the Americans with Disabilities Act. The
district judge granted summary judgment for the defendant.
  Larimer was hired in August of 2000, and in May of
the following year his wife, who was also an employee of
IBM, gave birth to twin daughters after only 29 weeks of
pregnancy. At birth the two girls suffered from a variety of
serious medical conditions owing to their prematurity, in-
2                                                No. 03-2256

cluding respiratory distress, jaundice, apnea, and sepsis.
One of the girls also had bleeding in the brain and the other
had a lesion on her nose. They were hospitalized for almost
two months at a total expense of almost $200,000, all of
which IBM’s employee health plan paid for. By the close of
discovery in January 2003 the two children seemed to be
healthy and normal, but there is some probability (how
great a one is unknown) that they will develop serious
physical or mental handicaps as they grow older.
   Larimer was fired in August of 2001, shortly after the
children came home from the hospital. His principal claim
is that IBM violated the Americans with Disabilities Act, by
firing him because his daughters are disabled. Are they?
They seem fine at present, and so the question, left open in
Goldman v. Standard Ins. Co., 341 F.3d 1023, 1026 and n. 2
(9th Cir. 2003), and not elsewhere answered definitively, is
whether a possible, or even probable, future disability can
ever be a disability that triggers the protections of the Act.
42 U.S.C. § 12102(2); 29 C.F.R. § 1630.8; Den Hartog v.
Wasatch Academy, 129 F.3d 1076, 1081-82 (10th Cir. 1997);
Tyndall v. National Education Centers, Inc., 31 F.3d 209, 214
(4th Cir. 1994). The Supreme Court’s decision in Sutton v.
United Air Lines, Inc., 527 U.S. 471, 482-83 (1999), suggests
(in dictum—the question before the Court was whether a
person who has to wear glasses is disabled because without
them he couldn’t see) that the answer is “no” unless the
individual is mistakenly regarded by his employer as hav-
ing a disability; such a mistake is an alternative trigger of
the Act’s protections. 42 U.S.C. § 12102(2)(C); EEOC v.
Rockwell Int’l Corp., 243 F.3d 1012, 1014-15 (7th Cir. 2001).
  Larimer must lose even if his daughters are disabled or
regarded as disabled. He is suing not on their behalf but on
his own, under a provision of the ADA that forbids discrim-
ination against “a qualified individual because of the known
No. 03-2256                                                   3

disability of an individual with whom the qualified individ-
ual is known to have a relationship or association.” 42
U.S.C. § 12112(b)(4). Notice first the oddity of requiring the
plaintiff to show that he is a “qualified individual,” since the
only definition in the ADA of a “qualified individual” is the
definition of “qualified individual with a disability” as “an
individual with a disability 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. § 12111(8). If this is the “qualified individual” to
which the association provision (section 12112(b)(4)) refers,
then Larimer cannot obtain any relief under that provision
because he has no disability! The term “qualified individ-
ual” in that provision must simply mean qualified to do
one’s job, as assumed though nowhere discussed in the
legislative history and the cases. H.R. Rep. 101-485, pt. 2, at
61-62 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 343-44; 29
C.F.R. § 1630.8; Hilburn v. Murata Electronics North America,
Inc., 181 F.3d 1220, 1230-31 (11th Cir. 1999); Den Hartog v.
Wasatch Academy, supra, 129 F.3d at 1083-85; Ennis v.
National Ass’n of Business & Educational Radio, Inc., 53 F.3d
55, 59-60 (4th Cir. 1995); Rocky v. Columbia Lawnwood
Regional Medical Center, 54 F. Supp. 2d 1159, 1164-65 (S.D.
Fla. 1999).
   Three types of situation are, we believe, within the in-
tended scope of the rarely litigated (this is our first case)
association section. We’ll call them “expense,” “disability by
association,” and “distraction.” They can be illustrated as
follows: an employee is fired (or suffers some other adverse
personnel action) because (1) (“expense”) his spouse has a
disability that is costly to the employer because the spouse
is covered by the company’s health plan; (2a) (“disability by
association”) the employee’s homosexual companion
is infected with HIV and the employer fears that the em-
ployee may also have become infected, through sexual con-
4                                                 No. 03-2256

tact with the companion; (2b) (another example of disability
by association) one of the employee’s blood relatives has a
disabling ailment that has a genetic component and the
employee is likely to develop the disability as well (maybe
the relative is an identical twin); (3) (“distraction”) the
employee is somewhat inattentive at work because his
spouse or child has a disability that requires his attention,
yet not so inattentive that to perform to his employer’s
satisfaction he would need an accommodation, perhaps by
being allowed to work shorter hours. The qualification
concerning the need for an accommodation (that is, special
consideration) is critical because the right to an accommoda-
tion, being limited to disabled employees, does not extend
to a nondisabled associate of a disabled person. 29 C.F.R.
§ 1630.8; Den Hartog v. Wasatch Academy, supra, 129 F.3d at
1083-85; Tyndall v. National Education Centers, Inc., supra, 31
F.3d at 214.
   This case fits none of the categories. (2) can be ruled out
peremptorily; the girls’ premature birth and resulting med-
ical afflictions are neither communicable to Larimer nor
predictive of his becoming ill or disabled. Likewise (3): there
is no evidence that Larimer was absent or distracted at work
because of his wife’s pregnancy or the birth and hospitaliza-
tion of his daughters. As for (1), there is to begin with no
evidence that health benefits are in the budget of the unit of
IBM that employed and discharged Larimer. Cf. Rogers v.
International Marine Terminals, Inc., 87 F.3d 755, 761 (5th Cir.
1996). Benefits can be in a unit’s budget in multiple ways.
For example, IBM may charge every manager’s budget with
a fringe-benefit allocation for each employee in his unit that
is equivalent to the premiums for health insurance allocable
to the employee, or, alternatively, with the dollar amounts
actually paid in benefits to the unit’s employees or their
dependents. In the latter case but not the former, the
manager would care about the actual expense for health
No. 03-2256                                                  5

services to the relatives of an employee in his unit because
that expense would be in his budget. But there is no evi-
dence that expenses are accounted for in that fashion. If IBM
has a profit-sharing plan or pays bonuses based in part on
company-wide performance, all employees who participate
in the plan or receive such a bonus—and presumably they
would include Larimer’s supervisors—have a financial
stake in the company’s performance and thus a stake,
however attenuated, in the firing of an “expensive” em-
ployee. But Larimer has made no effort to pitch his case on
such ground either.
  Having no evidence, Larimer falls back on the ubiquitous
McDonnell Douglas test for a prima facie case of employment
discrimination. Den Hartog, the case with the most extensive
discussion of the ADA’s association provision, purports to
use a version of the test that requires the plaintiff to show
that “(1) the plaintiff was ‘qualified’ for the job at the time
of the adverse employment action; (2) the plaintiff was
subjected to adverse employment action; (3) the plaintiff
was known by his employer at the time to have a relative or
associate with a disability; (4) the adverse employment
action occurred under circumstances raising a reasonable
inference that the disability of the relative or associate was
a determining factor in the employer’s decision.” 129 F.3d
at 1085; see also McGuinness v. University of New Mexico
School of Medicine, 170 F.3d 974, 979-80 (10th Cir. 1998). The
test is sound, but it’s not really a version of the McDonnell
Douglas test because it requires the plaintiff to prove all the
elements of what would be the prima facie case of discrimi-
nation against a relative or other associate of a disabled
person even if there had never been a McDonnell Douglas
case. This is apparent from the fourth element of the Den
Hartog test, which requires the plaintiff to produce evidence
that he was discriminated against because of the disability
of a person with whom he has a relationship or other
6                                                 No. 03-2256

association. Compare this to the corresponding part of the
McDonnell Douglas test, which in the case of employment
discrimination based on race or some other invidious
ground requires the plaintiff to prove only that he was
replaced by someone of a different race— not that he was
discriminated against because of his race. A plaintiff who
can produce evidence of actual discrimination on the basis
of disability has made out a prima facie case without regard
to McDonnell Douglas.
   A true parallel to McDonnell Douglas in the association
setting would allow a prima facie case to be made out if the
plaintiff, having shown that he was qualified in the sense of
meeting his employer’s expectations (not a “qualified
individual with a disability,” as we explained earlier), went
on to show that his employer knew he had a relationship or
association with a disabled individual, that the employer
fired him, and that he was replaced by someone who lacked
such a relationship or association. This would not however
be a very sensible test—which shows that there may be
limits even to the cloning of McDonnell Douglas. When
deciding whether to adapt McDonnell Douglas to a new legal
setting, a court should ask not “how can we create a formula
closest to that one?” but “what conditions imply a compara-
bly high likelihood that the employer is violating the
statute?” In the present setting a true McDonnell Douglas
test, as distinct from the Den Hartog test, would generate the
prima facie case of disability discrimination when only the
most tenuous basis for an inference of discrimination was
present—for example when the employer knew merely that
the plaintiff had a second cousin who was sterile, or that he
had shaken hands with a person who was HIV-positive. The
latter example would be ruled out by cases that hold that
casual associations with a disabled person are not protected
by the ADA, Freilich v. Upper Chesapeake Health, Inc., 313 F.3d
205, 215-16 (4th Cir. 2002); Oliveras-Sifre v. Puerto Rico Dept.
No. 03-2256                                                    7

of Health, 214 F.3d 23, 26 (1st Cir. 2000); O’Connell v. Isocor
Corp., 56 F. Supp. 2d 649, 653 (E.D. Va. 1999), but probably
not the former; for in 29 C.F.R. § 1630.8 we read that “it is
unlawful for a covered entity to exclude or deny equal jobs
or benefits to, or otherwise discriminate against, a qualified
individual because of the known disability of an individual
with whom the qualified individual is known to have a
family, business, social or other relationship or association.”
Better to require, as Den Hartog does though not in precisely
these words, that the plaintiff present evidence that his case
falls in one of the three categories in which an employer has
a motive to discriminate against a nondisabled employee
who is merely associated with a disabled person.
   Larimer’s alternative claim is that his discharge violated
ERISA. The usual ERISA claim is for benefits, but the ex-
pense of the girls’ medical treatments was fully defrayed by
IBM and what Larimer is arguing is that IBM fired him
because of annoyance at having to pay so much, which may
grow to be even more in the future should either or both of
the girls develop serious physical or mental handicaps. In
other words, the claim is that IBM retaliated against Larimer
for exercising his rights under IBM’s welfare benefits plan.
29 U.S.C. § 1140. He has no evidence of this, just as he has
no evidence of disability discrimination, but in Stone v. City
of Indianapolis Public Utilities Division, 281 F.3d 640, 644 (7th
Cir. 2002), we authorized the following “adaptation of
McDonnell Douglas to the retaliation context”: “the plaintiff
[must] show that after filing the charge [in the present case,
after applying for atypically large benefits] only he, and not
any similarly situated employee who did not file a charge
[in this case, did not apply for atypically large benefits], was
subjected to an adverse employment action even though he
was performing his job in a satisfactory manner.” See also
Rogers v. City of Chicago, 320 F.3d 748, 754-55 (7th Cir. 2003).
8                                                No. 03-2256

Stone was not an ERISA case, but the standard it sets forth
is appropriate to such cases. It is true that one finds courts
saying that the plaintiff in an ERISA retaliation case must
show that the defendant had a “specific intent” to punish
him for asserting rights under the plan. Bilow v. Much Shelist
Freed Denenberg Ament & Rubenstein, P.C., 277 F.3d 882, 892
(7th Cir. 2001); Lindemann v. Mobil Oil Corp., 141 F.3d 290,
295 (7th Cir. 1998); Humphreys v. Bellaire Corp., 966 F.2d
1037, 1043 (6th Cir. 1992). But all that this means is that
since the forbidden retaliation is retaliation for claiming
ERISA benefits, the plaintiff cannot prevail unless he shows
that there was an ERISA plan and presents evidence from
which the trier of fact can infer that the defendant’s motiva-
tion in taking the adverse action of which the plaintiff is
complaining was indeed to thwart his right to benefits. That
is the ultimate question and is separate from what must be
shown to establish merely the prima facie case.
  Had Larimer identified a similarly situated employee of
IBM who had not applied for substantial welfare benefits
yet had been treated better than he, he would have made
out a prima facie case of retaliation under Stone—provided,
as in any McDonnell Douglas case, that he also showed that
he was performing his job in a manner that satisfied his
employer’s legitimate expectations. Coco v. Elmwood Care,
Inc., 128 F.3d 1177, 1178-79 (7th Cir. 1997). He strikes out
on both counts. Declining ostrich-like to mention, let alone
try to distinguish, Stone, even though his opponent relies
heavily on it, he makes no effort to identify a comparable
employee of IBM who did not apply for atypically large
welfare benefits and was treated better than Larimer was,
though it would be easy to find such an individual if one
existed. Nor does he show that he was performing up to his
employer’s expectations—in fact he was fired because he
did not perform up to those expectations. He was a new hire
No. 03-2256                                                 9

and the uncontradicted evidence, described at length in the
district court’s opinion and unnecessary to repeat here,
demonstrated that he failed to obtain an adequate under-
standing of the product that he had been hired to sell (Lotus
software) and as a result was unable to convince prospective
customers that the product was the answer to their needs.
He was especially poor at convincing them to buy the
various ancillary services that are an important part of the
revenue of many software producers, including IBM. His
discharge had nothing to do with the expense incurred by
IBM with respect to his daughters.
                                                  AFFIRMED.

A true Copy:
       Teste:

                          _____________________________
                           Clerk of the United States Court of
                             Appeals for the Seventh Circuit




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