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

Nos. 00-3779 & 01-1546
JERRY OGBORN,
                                               Plaintiff-Appellant,
                                 v.

UNITED FOOD AND COMMERCIAL WORKERS UNION,
LOCAL NO. 881 and STEVEN POWELL,
                                            Defendants-Appellees.
                          ____________
           Appeals from the United States District Court
       for the Northern District of Illinois, Eastern Division.
             No. 98 C 4623—William T. Hart, Judge.
                          ____________
ARGUED NOVEMBER 9, 2001—DECIDED SEPTEMBER 27, 2002
                   ____________


  Before MANION, KANNE, and ROVNER, Circuit Judges.
  ROVNER, Circuit Judge. Jerry Ogborn sued his former
employer, Local 881 of the United Food and Commercial
Workers Union, as well as the union’s vice president, Ste-
ven Powell, alleging that Local 881 fired him in viola-
tion of the Americans with Disabilities Act, 42 U.S.C.
§§ 12101-17, and the Family and Medical Leave Act, 29
U.S.C. §§ 2601-54, and that the union and Vice President
Powell committed various torts in connection with Ogborn’s
termination. The district court granted summary judgment
for Local 881 on the federal claims, relinquished supple-
mental jurisdiction over the state-law claims, and in a sep-
2                                   Nos. 00-3779 & 01-1546

arate order assessed costs against Ogborn. In these con-
solidated appeals Ogborn concedes the dismissal of the
state-law claims but contests both the grant of summary
judgment on his federal claims and the award of costs, and
as to both we affirm.
  Ogborn worked as a business agent for Local 881 from
1989 to 1997 and for predecessors of Local 881 from 1980
to 1989. Local 881 represents in collective bargaining ap-
proximately 39,000 union members employed primarily
in the retail grocery industry. As a business agent Ogborn
visited stores represented by Local 881, met with union
members about working conditions, filed and processed
members’ grievances, and performed a variety of other
services on behalf of the union’s constituents. From 1990
to 1997 Ogborn received four performance-based salary
increases as well as letters from members thanking him
for his work, but during the same period he was coun-
seled frequently and suspended three times for poor per-
formance.
   One of Local 881’s criticisms centered on Ogborn’s filing
and processing of members’ grievances. Grievance process-
ing, according to Local 881, constituted one of Ogborn’s pri-
mary job responsibilities because delaying or failing to
file a member’s grievance could subject the union to lia-
bility in an unfair labor practices lawsuit. According to
documents in Ogborn’s personnel file, his supervisors crit-
icized him in 1994 for failing to write timely grievances
and noted that his grievance processing reflected “[o]ne
of the poorest records of the entire field staff.” In 1995
another supervisor criticized Ogborn for failing to prompt-
ly update three members on the statuses of their pend-
ing grievances, and in July 1996 the union suspended
Ogborn for three days after a member lost his job and
Ogborn neglected to learn the reason for the member’s
termination or to timely resolve his grievance. In July
1996 Ogborn also began having problems in his personal
Nos. 00-3779 & 01-1546                                      3

life. Marital difficulties caused him to file for divorce, and
he moved with his fifteen-year-old son into his parents’
home. Ogborn, then 45 years old, lost weight, felt dejected,
and experienced difficulty eating, sleeping, concentrating,
thinking, and interacting with others.
  A year later Ogborn again had problems at work. In
July 1997 Vice President Powell directed Ogborn to start
writing more detailed grievances and to stop having his
girlfriend type his grievances because she was employed
at one of the stores that Ogborn represented. On August 20
Powell and another supervisor again met with Ogborn
and voiced concerns about his request for time off on a
day when he knew that he needed to attend a mandatory
organizing seminar, his relationship with the woman
who had been doing his typing, his lack of familiarity with
the names of many managers at stores that he repre-
sented, his failure to process any grievances since meet-
ing with Powell six weeks earlier, and his processing of
only 28 grievances for the year, less than half as many as
previous business agents who worked the same stores.
Because of these problems, Powell suspended Ogborn for
three days and suggested that he should start looking for
a new job because “one more instance” of poor perform-
ance would result in his termination.
  At the meeting Powell also suggested that Ogborn
should see a doctor if he thought that medical assistance
would improve his work. According to Ogborn, at the time
he was concentrating poorly, eating and sleeping with
difficulty, and losing weight, so he took Powell’s advice and
visited Dr. Dan Clark, a family practitioner, on August
25—the day that his suspension ended. Dr. Clark diag-
nosed Ogborn with clinical depression, prescribed Prozac
and sleeping pills, and instructed him not to drive or
return to work. Ogborn promptly reported the diagnosis
to Local 881 and informed the union that he would be
off work until his next appointment with Dr. Clark in two
4                                 Nos. 00-3779 & 01-1546

weeks. After meeting with Ogborn as scheduled on Sep-
tember 8, Dr. Clark concluded that Ogborn still suffered
from depression and prescribed Elavil (a mood elevator),
and Ogborn again told Local 881 that he would miss
work for another two weeks. Then on September 20 Og-
born’s ex-wife called the police and reported that Ogborn
was “crazy and suicidal.” An ambulance took Ogborn to
the hospital, and emergency-room physicians observed
him for several hours before releasing him with the recom-
mendation that he see a counselor, whom Ogborn met
with once. Two days later Ogborn saw Dr. Clark as sched-
uled, and he prescribed the antidepressant Serzone in
lieu of Prozac because the Prozac was not working. Ogborn
then reported the treatment change to Local 881 and ad-
vised the union that he would be off work for another two
weeks.
  Meanwhile, after learning of Ogborn’s depression, Vice
President Powell assigned another business agent to cov-
er Ogborn’s territory during his absence. Powell also in-
structed Ogborn to return his outstanding files, including
the file for a member named Roger Ferrera. Another
union employee then went to Ogborn’s house and picked
up the documents, and after reviewing the files officials
at Local 881 allegedly discovered that Ogborn had not
properly filed and processed a number of members’ griev-
ances. The union also purportedly received calls from
members complaining that Ogborn had not completed
their grievances or returned their telephone calls. Accord-
ing to Lisa Cantanzaro, one of Ogborn’s supervisors, she
personally received several calls from Roger Ferrera
about six of his grievances as well as a call from a mem-
ber named Janice Calise about her grievance. Cantanzaro
testified that Ogborn had not properly processed these
grievances and that she resolved them herself. Union
officials then met twice to discuss the information uncov-
ered after Ogborn took medical leave, and after a third
Nos. 00-3779 & 01-1546                                     5

meeting the union’s president, Ronald Powell (Vice Presi-
dent Steven Powell’s brother), fired Ogborn on October 3,
1997.
  After his termination Ogborn continued to meet with
Dr. Clark. According to Ogborn, switching his medication
to Serzone “seemed to help,” and on October 23 he filed
an application for unemployment insurance, certifying that
he could “accept work now.” Ogborn also unsuccessfully
appealed President Powell’s decision to fire him to the
union’s executive board. Ogborn then filed a charge of
discrimination with the EEOC, and after receiving a
right-to-sue letter, he brought this action. On Local 881’s
motion the district court granted summary judgment
on Ogborn’s claims under the ADA and the FMLA and
later ordered Ogborn to pay $3,965.46 in costs. We review
the court’s grant of summary judgment on the federal
claims de novo and review the award of costs for abuse
of discretion. Corder v. Lucent Techs. Inc., 162 F.3d 924,
927-28 (7th Cir. 1998).
  On appeal Ogborn first contests the grant of summary
judgment on his ADA claim. The ADA makes it unlawful
for covered entities (such as labor organizations) to dis-
criminate against disabled individuals by firing them
because of their disabilities or by failing to make “reason-
able accommodation” for their disabilities. 42 U.S.C.
§ 12112(a), (b)(5)(A); Basith v. Cook County, 241 F.3d 919,
926-27 (7th Cir. 2001). A disability in turn encompasses
a physical or mental impairment that substantially lim-
its someone in one or more “major life activities” as well as
the status of “being regarded as having such an impair-
ment.” 42 U.S.C. § 12102(2); 29 C.F.R. § 1630.2(g); see
Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184,
122 S. Ct. 681, 689 (2002). According to Ogborn, his de-
pression substantially limited him in the major life activ-
ity of working, see Sinkler v. Midwest Prop. Mgmt. Ltd.
P’ship, 209 F.3d 678, 684 n.1 (7th Cir. 2000); 29 C.F.R.
6                                  Nos. 00-3779 & 01-1546

§ 1630.2(i), and by firing him during his medical leave,
Local 881 both discriminated against him because of his
depression and also failed to accommodate his depression
by honoring his request for time off work.
  The problem with Ogborn’s claim, as the district court
pointed out, is that he has not identified any evidence that
his depression limited his ability to work for more than a
short period of time. Major depression can constitute a
disability under the ADA. Krocka v. City of Chicago, 203
F.3d 507, 512 (7th Cir. 2000); Schneiker v. Fortis Ins. Co.,
200 F.3d 1055, 1061 (7th Cir. 2000); Mustafa v. Clark
County Sch. Dist., 157 F.3d 1169, 1174 (9th Cir. 1998) (per
curiam). But intermittent, episodic impairments such as
broken limbs and appendicitis are not disabilities, Vande
Zande v. Wis. Dep’t of Admin., 44 F.3d 538, 544 (7th Cir.
1995); Pollard v. High’s of Baltimore, Inc., 281 F.3d 462,
468 (4th Cir. 2002) (collecting cases); 29 C.F.R. pt. 1630,
App. § 1630.2(j), nor are isolated bouts of depression,
Soileau v. Guilford of Me., Inc., 105 F.3d 12, 16 (1st Cir.
1997).
  In Ogborn’s case the record reflects that depression
prevented him from working for just over eight weeks—
the period stretching from August 25, 1997, when Dr.
Clark made his diagnosis, until October 23, 1997, when
Ogborn certified in his application for unemployment in-
surance that he could return to work. True, Ogborn first
suffered symptoms of depression after his divorce in July
1996, more than a year before Local 881 fired him, and it
is unclear if Ogborn continued to suffer symptoms of de-
pression after he applied for unemployment insurance.
Nevertheless, merely having an impairment, such as
depression, does not make an individual disabled under the
statute. A claimant must also demonstrate that the im-
pairment limits a major life activity—in Ogborn’s case
the activity of working. See 42 U.S.C. § 12102(2)(A);
Toyota Mfg., 122 S. Ct. at 690; Sutton v. United Air Lines,
Nos. 00-3779 & 01-1546                                    7

Inc., 527 U.S. 471, 482-83 (1999). Here Ogborn has not
identified any evidence that depression limited his ability
to work before his suspension and subsequent visit to
Dr. Clark in August 1997; indeed, Ogborn testified at his
deposition that when he went to see Dr. Clark he thought
that he could still perform his job. Likewise, he has failed
to point to any evidence that he could not work after
October 23, when he certified that he could work.
  Ogborn responds that even if his depression did not
amount to an actual disability, the ADA still protects
him because he was “regarded as” having a disability by
officials at Local 881. See 42 U.S.C. § 12102(2)(C); Dvorak
v. Mostardi Platt Assocs., Inc., 289 F.3d 479, 483-84 (7th
Cir. 2002). That contention is also unpersuasive, however,
because Ogborn has not presented evidence that union
personnel held exaggerated views about the seriousness
of his illness. The record at most establishes that in Au-
gust 1997 Vice President Powell suggested to Ogborn that
he see a doctor, that union officials thereafter learned
that Ogborn was depressed and would be off work, and
that from August 25 to October 3, when Ogborn was fired,
he contacted the union biweekly and reported his condi-
tion. These facts do not suggest that anyone at Local 881
thought that Ogborn’s depression prevented him from
working for a length of time in excess of the actual period
that he was on medical leave. The district court there-
fore appropriately granted summary judgment on Ogborn’s
ADA claim.
  Turning to the FMLA claim, we again agree that sum-
mary judgment was proper. The FMLA entitles eligible
employees to up to twelve weeks of unpaid leave annually
for serious health conditions and makes it unlawful for
an employer to refuse to reinstate, or to discriminate
against, an employee who takes valid leave. 29 U.S.C.
§§ 2612(a)(1), 2614(a)(1), 2615(a)(2); Ragsdale v. Wolverine
World Wide, Inc., 122 S. Ct. 1155, 1160 (2002). The right
8                                   Nos. 00-3779 & 01-1546

to reinstatement provided by the FMLA is not absolute,
however, for the statute does not confer benefits to which
an employee would not be entitled had the employee not
taken leave. 29 U.S.C. § 2614(a)(3)(B); Kohls v. Beverly
Enters. Wis., Inc., 259 F.3d 799, 804 (7th Cir. 2001); Rice v.
Sunrise Express, Inc., 209 F.3d 1008, 1017-18 (7th Cir.
2000); O’Connor v. PCA Family Health Plan, Inc., 200 F.3d
1349, 1353-54 (11th Cir. 2000). Thus, employers may fire
employees for poor performance if they would have
fired them for their performance regardless of their hav-
ing taken leave. Kohls, 259 F.3d at 805; Hatchett v. Philan-
der Smith Coll., 251 F.3d 670, 677 (8th Cir. 2001).
  According to Local 881, Ogborn would have been fired
even if he had not taken leave because the union discov-
ered additional evidence of his poor work after warning
him that further performance problems would lead to
his termination. As President Powell explained in his dep-
osition, if he had known of “all of the things that came up”
after Ogborn’s suspension, he would have fired Ogborn at
that time. Ogborn maintains that Local 881’s position is
unsupported by any evidence that the union in fact dis-
covered additional examples of his deficient work. But
that contention is untenable given Lisa Cantanzaro’s tes-
timony that she personally fielded calls from Roger Fer-
rera and Janice Calise after Ogborn took leave and then
handled their grievances, which Ogborn had not completed.
  It is true, as Local 881’s attorney effectively conceded
to us in a letter submitted after the oral argument, that
the union did not include the grievances themselves in its
motion for summary judgment. We fail to see, however,
how that omission undercuts Cantanzaro’s testimony, and
Ogborn has provided no evidence that the grievances
identified by Cantanzaro either were properly processed
or did not in fact exist. Ogborn instead complains that
Local 881 hindered his ability to respond to Cantanzaro’s
assertions by neglecting to specifically discuss her testi-
Nos. 00-3779 & 01-1546                                   9

mony in the statement of undisputed facts submitted
with its motion. But Local 881 cited the relevant pages of
Cantanzaro’s deposition in its statement to support its
assertion that the union “discovered numerous griev-
ances that were not properly processed,” and in any event
the district court had discretion to overlook omissions in
Local 881’s statement of facts and examine Cantanzaro’s
testimony directly. See Little v. Cox’s Supermarkets, 71
F.3d 637, 641 (7th Cir. 1995); Bell, Boyd & Lloyd v. Tapy,
896 F.2d 1101, 1103 (7th Cir. 1990); Burke v. Gould, 286
F.3d 513, 518 (D.C. Cir. 2002).
  Ogborn also insists that significant circumstantial evi-
dence raises an inference that Local 881 fired him for
reasons unrelated to the new evidence of his poor perfor-
mance. According to Ogborn, the timing of his discharge
and letters written by union members praising his work,
coupled with misrepresentations allegedly made by Vice
President Powell at the executive board meeting and
evidence that Local 881 tampered with audio record-
ings of the meeting, demonstrate that the union’s stated
reason for firing him is a “pretext.” But in a suit charg-
ing violations of the substantive, as opposed to the anti-
discrimination, provisions of the FMLA, proof of pretext
is neither necessary nor sufficient to show a violation of
the statute. Kohls, 259 F.3d at 806; Diaz v. Fort Wayne
Foundry Corp., 131 F.3d 711, 713 (7th Cir. 1997); Bachelder
v. Am. W. Airlines, Inc., 259 F.3d 1112, 1131 (9th Cir.
2001). Ogborn has elected not to pursue a claim of dis-
crimination under the FMLA, so he needed to show that
he was entitled to return to work when his medical leave
ended. The circumstantial evidence identified by Ogborn
fails to assist his case because it does nothing to negate
the evidence that Local 881 discovered additional ex-
amples of his poor performance, which entitled the union
to fire him in light of his performance history.
10                                  Nos. 00-3779 & 01-1546

   That leaves the award of costs. Federal Rule of Civil
Procedure 54(d) provides that “costs other than attorneys’
fees shall be allowed as of course to the prevailing party
unless the court otherwise directs.” According to Ogborn,
the award should be reversed because Local 881’s re-
quest for costs was untimely and because Local 881 was
not the prevailing party. Ogborn is mistaken on both
points. Northern District of Illinois Local Rule 54.1(a)
provides that a bill of costs must be filed within thirty
days of “the entry of a judgment allowing costs.” Ogborn
contends that Local 881’s submission was untimely be-
cause the district court entered judgment on September
22, 2000, and Local 881 filed its bill of costs on October 25,
2000, more than thirty days later. But Ogborn confuses
the date that the district court filed its judgment with the
date that it entered judgment. The date in the lefthand
column of the district court’s docket sheet provides the
filing date—here September 22—whereas the bracketed
date at the end of the entry provides the entry date—here
September 25, as reflected by the notation “[e]ntry date
9/25/00.” See Houston v. Greiner, 174 F.3d 287, 288 (2d Cir.
1999). Because the entry date controls, Local 881’s sub-
mission on October 25 was timely. Ogborn’s remaining
objection to the award of costs—that Local 881 was not
the “prevailing party”—is also without merit. The district
court entered judgment on Ogborn’s federal claims and
declined to exercise supplemental jurisdiction over his
state-law claims. That resolution made Local 881 the pre-
vailing party, even though the court dismissed Ogborn’s
state-law claims without prejudice. Head v. Medford, 62
F.3d 351, 355 (11th Cir. 1995).
                                                  AFFIRMED.
Nos. 00-3779 & 01-1546                               11

A true Copy:
      Teste:

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




                 USCA-97-C-006—9-27-02
