Brenda Lear Scheidler v. State of Indiana, et al.

Brenda Lear Scheidler worked for

the Indiana Department of Insurance (“IDOI”). She sought

accommodations for disabilities related to her mental health.

She asked, among other things, that her coworkers not startle

her. She received these accommodations for several years. But

on May 28, 2013, a frustrated supervisor reached toward

Scheidler and said, “I could just strangle you.” An

investigation into this workplace incident discovered that

2 No. 17-2543

several months earlier Scheidler commented in an elevator

about a coworker’s apparent promotion prospects: “It’s who

you know and who you blow.”

IDOI terminated Scheidler. She sued it for disability

discrimination, retaliation, and other claims. She lost some

claims at summary judgment and she lost the rest at trial. She

appeals summary judgment and an evidentiary decision.

Finding no reversible error, we affirm.

I. Facts

Scheidler1 began working for Indiana in a prison in 1999.

She learned an inmate wrote in his diary he wanted to torture

her sexually. Scheidler reacted emotionally and left her

employment and sought medical treatment for the trauma. In

2006, she began working at IDOI as a clerical assistant. She

received good reviews, promotions, and no discipline until

the termination at issue here.

In 2009, IDOI hired a recently released offender. This

apparently scared Scheidler, and as a result she was

diagnosed with depression, bipolar disorder, and posttraumatic

stress disorder. She took FMLA leave. When she

returned, she discussed her condition with her supervisor,

Cindy Donovan, and asked her to comment on any changes

in Scheidler’s behavior. Scheidler also told other employees,

including Annette Gunter and Ronda Ankney, about the

diagnosis. Scheidler asked them not to startle her, be loud, or

approach suddenly. She says she received these

1 At all relevant times while working Lear was her surname. She later

married and added her spouse’s name. On appeal she refers to herself as

“Scheidler,” so we do, too.

No. 17-2543 3

accommodations and for several years did not have any

further problems at work until May 28, 2013.

Gunter and Ankney are sisters-in-law. In 2010, Scheidler

began carpooling with them. By 2013, Gunter supervised

Scheidler for some purposes.

In 2013, Scheidler applied for a particular position within

IDOI. Mary Ann Williams, another IDOI employee, also

applied. As Scheidler, Gunter, and Ankney left work one day

in March or April 2013, they noticed Williams was not at her

station. According to Ankney, Scheidler said, “Oh, it looks

like Mary Ann is still upstairs in her interview for her

government job.”

“Brenda, don’t we all have government jobs? We’re all

State employees,” Ankney responded.

“Well, I mean for her federal job upstairs … I’m sure she’ll

get it because … it’s who you know and who you blow,”

Scheidler said in the elevator.2 Ankney and Gunter told

Scheidler they disapproved, but did not report this comment

until several months later.

On May 28, 2013, Scheidler went to Gunter’s office after

getting an email from Donovan about redistribution of duties.

Scheidler sought clarification. Gunter said she did not know

any more than Scheidler did. After Scheidler left, Gunter went

2 The briefs and record report different versions of this comment. But both

Scheidler and Ankney testified Scheidler said, “It’s who you know and

who you blow.”

4 No. 17-2543

to Ankney’s cubicle and said, “I don’t know what I’m going

to do if I don’t string her up by the end of the week.”3

Overhearing the comment as she walked by, Scheidler

asked, “Are you talking about me?” Gunter turned, stretched

her arms out, leaned into Scheidler, made a choking motion,

and said, “I could just strangle you.” This startled Scheidler.

A heated exchange ensued. Scheidler mentioned Gunter’s

medication. Gunter indicated Scheidler should quit. Gunter

said she wanted to end the carpool. We refer to this encounter

as the “cubicle episode.” Scheidler told Donovan about it, but

did not want a formal investigation. But Donovan notified HR

Director Katie Dailey and the State Personnel Department

(“SPD”). Jeffrey Hendrickson of SPD investigated. He

interviewed Scheidler and others, including Gunter, and

learned of the “blow” comment. He then met with IDOI

Commissioner Stephen W. Robertson and conveyed the facts.

Robertson made the disciplinary decisions. He decided to

issue a written reprimand to Gunter for her inappropriate

conduct during the cubicle episode. He decided to terminate

Scheidler. IDOI terminated her on July 8, 2013. The reason for

this termination is, of course, the heart of this case. Scheidler

claims IDOI terminated her for unlawful reasons. But IDOI

argues it terminated her because of her two instances of

inappropriate conduct: her “blow” comment in the elevator

and her participation in the cubicle episode.

3 The briefs and record also report different versions of this statement. The

differences are immaterial here. We present the version quoted by Gunter

during her trial testimony.

No. 17-2543 5

II. Procedural Posture

Scheidler filed twice with the E.E.O.C. She received notices

of right to sue on both charges. She also pursued

administrative relief under Indiana Code 4-15-2.2-24, 42. An

ALJ found in her favor on her disability-based retaliation

claim but found in IDOI’s favor on her other claims. The State

Employees’ Appeals Commission affirmed, and remanded to

set damages. But the parties agreed to stay those state

proceedings pending resolution of the federal case.

Scheidler filed a complaint with the district court and

amended it twice. The second amended complaint brought

three counts against Indiana and IDOI Commissioner

Stephen W. Robertson, in his official and personal capacities.

Count 1 (“Disability Discrimination”) alleged Defendants

discriminated against her because of her disability “by failure

to accommodate, discrimination and retaliation,” in violation

of 42 U.S.C. §§ 1981a, 12112, and 12203; 29 U.S.C. § 794; related

sections; and Indiana disability laws.

Count 2 (“Sex Discrimination”) alleged Defendants

discriminated against her because she is female, in violation

of 42 U.S.C. §§ 1981a, 1983, 2000e-2, 2000e-5, and related

sections.

Count 3 (“Retaliation”) alleged Defendants discriminated

against her “because she opposed and complained about

discrimination and exercised her rights to free speech,” in

violation of 42 U.S.C. §§ 1981a, 1983, 2000e-3, 2000e-5, 12112,

and 12203; 29 U.S.C. § 794; related sections; Indiana

whistleblower laws; and the First Amendments of the United

States and Indiana.

6 No. 17-2543

We share the court’s observation that the second amended

complaint does not clearly state what claims Scheidler

asserts.4 She abandoned some claims. Defendants moved for

summary judgment on all remaining claims. She clarified in

her brief responding to this motion that she pursued claims of

disability discrimination, failure to accommodate, and

retaliation for making complaints of sex and disability

discrimination. The court construed her disability claims as

arising under the ADA and the Rehabilitation Act and her

retaliation claims as arising under those statutes and Title VII

of the Civil Rights Act.

On grounds not raised by Defendants, the court granted

summary judgment to Robertson on all claims.

The court denied summary judgment on the ADA and

Rehabilitation Act claims against Indiana for disparate

treatment due to disability. The court found enough evidence

on the prima facie case and pretext to require trial.

The court granted summary judgment to Indiana on the

claim for sex-based retaliation under Title VII. Scheidler

argued her “blow” comment was a complaint of sex

discrimination and claimed IDOI terminated her in response

to this complaint. But the court determined she could not

show she engaged in statutorily protected activity requisite

for a retaliation claim because subjectively she did not have a

4 For example, disability and sex discrimination cannot violate § 1983. See

Gillo v. Gary Cmty. Sch. Corp., No. 2:14-CV-99-JVB-JEM, 2016 WL 4592200,

at *4 (N.D. Ind. Sept. 2, 2016) (collecting cases and noting § 1983 does not

create substantive rights susceptible to violations). And we do not think

“First Amendment” of Indiana’s Constitution means what she thinks. But

we do not hold these discrepancies against her.

No. 17-2543 7

sincere, good-faith belief she opposed an unlawful practice

and because objectively her complaint did not involve

discrimination prohibited by Title VII. Without a statutorily

protected activity, this retaliation claim fell.

The court also granted summary judgment to Indiana on

the disability-based retaliation claim. Scheidler claimed IDOI

terminated her in retaliation for complaining of disability

discrimination. But the court noted she did not clearly

articulate what her complaint of disability discrimination

was. The closest she came to articulating a complaint of

disability discrimination, according to the court, was: “When

[Scheidler] complained to human resources about Annette

Gunter threatening her and making a strangling motion at

[her], she told human resources that she suffered from bipolar

disorder and PTSD and that is why the situation startled and

upset her more than it might other people.” But the court

concluded she only raised her conditions to explain her

reaction to Gunter, not to complain anyone discriminated

because of disability. So the court determined she failed even

to create an inference of statutorily protected activity.

Finally, the court granted summary judgment for Indiana

on the failure-to-accommodate claim, concluding it was

simply her disability-discrimination-disparate-treatment

claim worded differently because the accommodation she

sought that IDOI failed to give was treatment equal to Gunter.

So the only claims at trial were for disparate treatment due

to disability discrimination against Indiana under the ADA

and the Rehabilitation Act. The jury gave a defense verdict.

Scheidler appeals the order granting partial summary

judgment and an evidentiary ruling during trial. We review

8 No. 17-2543

summary judgment de novo, and will affirm when—viewing

the evidence in the light most favorable to the nonmovant and

drawing all reasonable inferences in its favor—there is no

genuine issue of material fact and the movant is entitled to

judgment as a matter of law. Barbera v. Pearson Educ., 906 F.3d

621, 628 (7th Cir. 2018). We may affirm summary judgment

for reasons not articulated by the district court so long as the

record supports them, the district court adequately

considered them, and the nonmovant had an opportunity to

contest them. Gerhartz v. Richert, 779 F.3d 682, 685 (7th Cir.

2015).

A party generally forfeits issues and arguments raised for

the first time on appeal. CNH Indus. Am. v. Jones Lang LaSalle

Am., 882 F.3d 692, 705 (7th Cir. 2018). A party also generally

forfeits issues and arguments it fails to raise in its initial

appellate brief. Holman v. Indiana, 211 F.3d 399, 406 (7th Cir.

2000). Insufficiently developed issues and arguments are also

forfeited. United States v. Austin, 806 F.3d 425, 433 n.2 (7th Cir.

2015).

III. Analysis

A. Redundant claims?

Scheidler first argues the court erred by concluding her

failure-to-accommodate claim was the same as her disabilitydiscrimination-

disparate-treatment claim. The law recognizes

the existence of separate claims. The ADA forbids certain

types of disability discrimination: “No covered entity shall

discriminate against a qualified individual on the basis of

disability in regard to job application procedures, the hiring,

advancement, or discharge of employees, employee

compensation, job training, and other terms, conditions, and

No. 17-2543 9

privileges of employment.” 42 U.S.C. § 12112(a). The ADA

then defines “discriminate against a qualified individual on

the basis of disability” to include disparate treatment and

failure to accommodate: “not making reasonable

accommodations to the known physical or mental limitations

of an otherwise qualified individual with a disability who is

an applicant or employee … .” 42 U.S.C. § 12112(b)(5)(A).

A claim for disparate treatment based on disability under

the ADA (and the Rehabilitation Act, with immaterial

nuances) requires proof (1) plaintiff was disabled; (2) plaintiff

was qualified to perform essential functions with or without

reasonable accommodation; and (3) disability was the “but

for” cause of adverse employment action. Monroe v. Ind. Dep’t

of Transp., 871 F.3d 495, 503–04 (7th Cir. 2017); Felix v. Wis.

Dep’t of Transp., 828 F.3d 560, 568 (7th Cir. 2016).

A claim for failure to accommodate under the ADA (and the

Rehabilitation Act, generally) requires proof (1) plaintiff was

a qualified individual with a disability; (2) defendant was

aware of his disability; and (3) defendant failed to

accommodate his disability reasonably. E.E.O.C. v. AutoZone,

809 F.3d 916, 919 (7th Cir. 2016); Brumfield v. City of Chicago,

735 F.3d 619, 630 (7th Cir. 2013). So two separate claims are

possible under each statute.

But neither Scheidler’s second amended complaint nor her

statement of claims is clear regarding failure to accommodate.

The closest Scheidler comes to advancing a failure-toaccommodate

claim is under the theory that she asked her

coworkers not to startle her, but Gunter threatened to strangle

her. Yet Scheidler’s own statement of claims tends to

undermine even this theory, because there she admitted: “The

10 No. 17-2543

State accommodated [my] disability before [I] complained

about discrimination in May 2013.”

Scheidler’s appellate brief is clearer. In the section arguing

the court erred by conflating the failure-to-accommodate

claim with the disparate-treatment claim, she asserts “the

district court ignored the fact that Gunter failed to

accommodate Scheidler on May 28, 2013 by raising her voice,

making a strangling motion at Scheidler, and threatening

her.” (Appellant’s Br., DE 20 at 26.) The brief does not mention

any failure to accommodate unrelated to the cubicle episode.

In any event, even viewing the facts in the light most

favorable to her and drawing all reasonable inferences for her,

we conclude summary judgment against her on the failure-toaccommodate

claim was appropriate. The cubicle episode

was an isolated, “one-off” event. She does not allege a failure

to accommodate apart from the cubicle episode. Indeed, she

acknowledged there were no problems involving a failure to

accommodate other than the cubicle episode.5

5 In 2009, “Scheidler asked that her coworkers not startle her, not make

any loud noises, and not approach her suddenly because the PTSD made

her very jumpy. Scheidler continued to request those accommodations,

and Donovan only told Scheidler once that ‘something is a little different’

about her behavior, which Scheidler corrected. There were no problems

after that until [the cubicle episode in] May 2013 when Scheidler

complained to Gunter and Donovan that Gunter told Scheidler that

Gunter would like to strangle Scheidler, Gunter moved her hands toward

Scheidler’s throat, and Gunter told Scheidler that Scheidler should leave

and get another job.” (Appellant’s Br., DE 20 at 6–7, internal citations

omitted.) “Scheidler had previously requested accommodations of not

being startled, not having loud noises made around her, and not being

approached suddenly, due to her disability, and Donovan, as well as

No. 17-2543 11

“Reasonable accommodation under the ADA is a process,

not a one-off event.” Cloe v. City of Indianapolis, 712 F.3d 1171,

1178 (7th Cir. 2013), overruled on other grounds by Ortiz v.

Werner Enters., 834 F.3d 760, 764 (7th Cir. 2016). Here,

Scheidler has adduced no evidence that the interactive

process broke down. Even accepting as we do for present

purposes that she is disabled, that she asked her employer for

reasonable accommodations, and that Gunter breached the

arrangement on one occasion by threatening to strangle

Scheidler, we cannot escape the facts that Scheidler otherwise

received all the treatment she requested regarding her

disability, that she reported this singular cubicle episode to

Donovan, and that no further problems occurred. IDOI

addressed Gunter’s misconduct by reprimanding her. That

the reprimand did not benefit Scheidler because IDOI

terminated her the same day is of no moment because IDOI

was allowed to terminate her for her misconduct during the

elevator episode plus her misconduct during the cubicle

episode, even if her disability precipitated that misconduct.6

We do not hold a single event could never support a claim

for failure to accommodate. We merely conclude on this

Gunter, Ankney, and … other coworkers, had granted those

accommodations before this incident.” (Id. at 10.)

6 Felix, 828 F.3d at 568–69; Pernice v. City of Chicago, 237 F.3d 783, 785 (7th

Cir. 2001) (“[A]n employee can be terminated for violations … even if the

… violations occurred under the influence of a disability.”); Palmer v.

Circuit Court of Cook Cty., Ill., 117 F.3d 351, 352 (7th Cir. 1997) (“There is no

evidence [plaintiff] was fired because of her mental illness. She was fired

because she threatened to kill another employee. The cause of the threat

was … her mental illness … . But if an employer fires an employee because

of … unacceptable behavior, the fact that that behavior was precipitated

by a mental illness does not present an issue under the [ADA].”)

12 No. 17-2543

record the single cubicle episode does not support this claim.

Any error in conflating the claim for failure to accommodate

with the claim for disparate treatment was therefore harmless.

B. Retaliation

Scheidler next argues the court erred in granting summary

judgment on her retaliation claims.

1. Title VII retaliation

Title VII bans employers from retaliating against

employees who exercise rights under it. Title VII protects

“any … employees” who “opposed any practice” banned by

the statute, or who “made a charge, testified, assisted, or

participated in any manner in an investigation, proceeding, or

hearing” under the statute. 42 U.S.C. § 2000e-3(a).

A retaliation claim requires statutorily protected activity,

which generally involves subjective and objective factors:

“The plaintiff must not only have a subjective (sincere, good

faith) belief that he opposed an unlawful practice; his belief

must also be objectively reasonable, which means that the

complaint must involve discrimination that is prohibited by

Title VII.” Hamner v. St. Vincent Hosp. and Health Care Ctr., 224

F.3d 701, 707 (7th Cir. 2000), overruled on other grounds by

Hively v. Ivy Tech Cmty. Coll. Ind., 853 F.3d 339 (7th Cir. 2017).

Scheidler claims her elevator comment—“It’s who you

know and who you blow”—was statutorily protected activity.

But the court held she failed both the subjective and objective

factors because she did not have a sincere, good-faith belief

she opposed an unlawful practice and because her comment

did not involve discrimination prohibited by Title VII. The

court noted she testified she did not think her comment was

sexual. She told the ALJ she did not think “blow” had a sexual

No. 17-2543 13

connotation and she meant merely “[b]lowing hot air.”7 The

court noted the possibility a comment could be interpreted to

involve a sex act does not make it a complaint of sex

discrimination. And the court noted she had not provided any

evidence she rooted her comment in her gender.8

Scheidler argues the court erred because the IDOI

considered the comment to be a complaint of quid pro quo

sexual harassment, and an employer’s mistaken belief that an

employee engaged in protected activity sustains retaliation.

For support, she cites Heffernan v. City of Paterson, N.J., 136 S.

Ct. 1412, 1418–19 (2016). But it is distinguishable. It involved

a First Amendment claim, not a Title VII retaliation claim.

Certainly we are open to persuasion by analogy, but she does

not develop sufficient arguments for this, and we decline to

make them for her. Also the cases are factually

distinguishable. In Heffernan, defendant mistakenly thought

plaintiff engaged in protected political speech, and punished

him. But in our case, neither party thought the comment was

7 “Blow” has various potential meanings. Another Lear famously hurls it

without obvious sexual innuendo: “Blow winds … ! Rage, blow!” William

Shakespeare, King Lear, Act III, sc. ii.

8 Even later, at trial, Scheidler did not characterize “blow” as sexual: “I

meant it’s who you know; and when I say, ‘It’s who you blow,’ you know

you got somebody that you talk most up to, that knows you in your

private life. Her husband … had been president of the Indiana Insurance

Association. So she was and her husband was known … by the

Commissioner.” Scheidler did not testify she meant to accuse anyone of

quid pro quo sexual harassment. She did not testify she meant anyone

expected her, as a woman, to give sex to get ahead in her job. She did not

explain her comment in relation to her gender. Instead, she testified she

only meant to complain about favoritism because Williams and her

husband knew the Commissioner. That complaint isn’t protected here.

14 No. 17-2543

an actual complaint of sexual harassment or discrimination.

That characterization apparently only arose late in litigation.

Scheidler’s reliance on Thompson v. North American Stainless,

562 U.S. 170, 173–79 (2011), is also misplaced. That case

merely stands for the proposition that a person aggrieved by

retaliation has standing to sue for it even if that person did

not engage in the protected activity but someone else did.

Neither of these cases requires the conclusion that the

subjective component of the Title VII protected-activity

inquiry is obviated if the employer mistakenly thinks the

employee engaged in statutorily protected activity.

Besides, she offers no evidence that her complaint satisfies

the objective factor. She offers no evidence—and does not

even claim—that the Commissioner (or anyone else with

IDOI) asked for or received a sex act from Mary Ann Williams

(or anyone else) in exchange for a promotion or any other

employment benefit. She offers no evidence that her elevator

comment concerned actual discrimination prohibited by Title

VII. So the court did not err in granting summary judgment

on the Title VII retaliation claim.

2. Disability-based retaliation

Surviving summary judgment on disability-based

retaliation requires showing (1) statutorily protected activity;

(2) adverse employment action; and (3) causal connection.

Guzman v. Brown Cty., 884 F.3d 633, 642 (7th Cir. 2018). The

court granted summary judgment against this claim because

Scheidler failed to show statutorily protected activity. She

argues the court ignored several protected activities.

First, she argues the court ignored her complaint about

disability discrimination to Gunter during the cubicle episode.

No. 17-2543 15

There, Scheidler explained that when Gunter (who did not

have a disability) was upset and took Xanax, she was allowed

to move out of her position. But when Scheidler (who has a

disability) was upset, she was not given the same opportunity.

Scheidler cites her testimony before the ALJ. But there are

numerous problems with this argument. Foremost among

them is forfeiture. In the cited testimony, she never says she

complained to Gunter about disability discrimination.

Scheidler does not say, for example, that she complained that

Gunter received better treatment than Scheidler because

Scheidler is disabled and Gunter is not. Indiana argues for

forfeiture of this argument for failure to raise it below. In

reply, Scheidler claims she did raise this argument below, but

she only cites a broader portion of her testimony before the

ALJ and two pages from her response to the motion for

summary judgment below. Again, nowhere in the cited

materials does she say she complained to Gunter about

disability discrimination. So Scheidler forfeited this

argument. And the record does not support it anyway.

Second, she argues the court ignored the fact that when

she complained to HR about Gunter’s conduct during the

cubicle episode, Scheidler told HR she suffered from bipolar

disorder and PTSD and that is why the situation startled and

upset her particularly. Scheidler argues her statement to HR

was itself a complaint that Gunter failed to accommodate

Scheidler as requested. Here, she only cites her testimony

before the ALJ. But the cited testimony does not support her

argument. Moreover, in neither her initial appellate brief nor

her reply does she point to a time when she raised this specific

argument to the district court. The mere fact that Scheidler

argued below that Gunter and others failed to accommodate

her disability misses the point. Such an argument is not

16 No. 17-2543

tantamount to an argument that Scheidler complained to HR

that Gunter failed to accommodate and then IDOI retaliated

against Scheidler for making that complaint. So she forfeited

this argument. Also, the record does not support it. Therefore

we need not address the other problems with it.

Third, she argues the court ignored the fact that her

statement to HR that her disabilities explained her reaction to

Gunter was itself a request for an accommodation regarding

Scheidler’s reaction. Here, she only cites the order granting

summary judgment. Indiana argues for forfeiture for failure

to develop. We agree. We also note her response to the motion

for summary judgment did not adequately develop this

argument. And the record does not support it anyway.

Her remaining arguments regarding disability-based

retaliation are unavailing. The court committed no reversible

error in granting summary judgment on this claim.

C. Commissioner

Scheidler brought claims against Indiana and IDOI

Commissioner Stephen W. Robertson, in both his official and

personal capacities. The court granted full summary

judgment to Robertson on grounds not raised by Defendants,

without notice or a reasonable response time, in violation of

Rule 56(f)(2). Appellees admit this was an error. But the error

was harmless. Independent of the Robertson irregularity,

Scheidler lost all her claims at summary judgment or trial

anyway. She offers no satisfactory explanation of how the

premature summary judgment for Robertson ultimately

prejudiced her. Finding no reversible error regarding

summary judgment, we turn to the trial.

No. 17-2543 17

D. Exclusion of Thomas evidence

Donna Thomas was an IDOI employee terminated in

December 2011 after saying a racial slur. HR Director Dailey

discussed Thomas at Scheidler’s ALJ hearing. In moving for

summary judgment, Defendants referenced this testimony.

Defendants asserted they terminated Thomas for her single

slur. Scheidler challenged this at summary judgment. She

said Thomas committed multiple infractions before the slur,

Defendants gave her progressive discipline rather than

immediate termination, and they did not terminate her for a

single slur.

At trial, after the direct examination of Scheidler, her

attorney asked to be allowed to introduce four documents

from Thomas’s personnel file to show IDOI treated a

comparable person better than Scheidler. The court denied

the admissibility of these documents, but expressly allowed

the possibility Scheidler could introduce them through other

witnesses. But she failed to pursue this opening. She called no

further witnesses and she did not seek admission of the

documents through any Indiana witness.

Therefore Scheidler forfeited this evidentiary issue by

forgoing the court’s invitation to seek admission of the

exhibits later. See Ennin v. CNH Indus. Am., 878 F.3d 590, 596

(7th Cir. 2017) (concluding it is “the very essence of waiver”

to choose not to present evidence when given the

opportunity). Anyway, the standard of review is abuse of

discretion, Haynes v. Ind. Univ., 902 F.3d 724, 730 (7th Cir.

2018), and the court did not abuse its discretion.

Besides, Scheidler has not offered sufficient reasons to

convince us admission would have changed the outcome.

We considered all Scheidler’s arguments and found none

availing. Finding no reversible error, we AFFIRM.