Date: 11-15-2019

Case Style:

Case Number: 18-3217

Judge: Hamilton

Court: United States Court of Appeals for the Seventh Circuit on appeal from the Southern District of Indiana (Marion County)

Plaintiff's Attorney:

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Defendant's Attorney: Not Available

Description: Plaintiff Brigid Ford worked as a
deputy in the Marion County Sheriff’s Office until her hand
was seriously injured in a car accident while on duty. After
assigning Ford to light duty for about a year, the Sheriff’s Office
told Ford that she must either transfer to a permanent position
with a cut in pay or be terminated. After some back and
forth, Ford accepted a civilian job as a jail visitation clerk. In
the following years, Ford alleges, she suffered disability2
No. 18-3217
based harassment by co-workers, refusals to accommodate
her scheduling needs, and several discriminatory promotion
denials. Ford sued the Sheriff’s Office for discriminatory employment
practices in violation of the Americans with Disabilities
Act of 1990 (ADA), 42 U.S.C. § 12101 et seq.
The district court granted summary judgment on most of
Ford’s claims. Two claims were tried to a jury, which rendered
a verdict for the defense. Ford has appealed and raised a host
of issues. We affirm. The district court correctly granted summary
judgment on numerous claims and committed no reversible
error in the trial.
I. Factual and Procedural Background
Ford had worked at the Sheriff’s Office for almost a dozen
years when, in April 2012, another driver ran a red light and
crashed into her patrol vehicle. Since 2008, Ford had worked
as a sworn deputy sheriff in the warrants unit, locating and
arresting people with outstanding warrants. The crash severely
injured Ford’s dominant right hand. Despite extensive
treatment, she has not recovered full use of her hand. She suffers
ongoing and sometimes debilitating pain in her lower
arm.
In the wake of the accident, the Sheriff’s Office placed Ford
on various light duty tasks for about a year while she pursued
treatment. It became clear that Ford physically could not resume
her work as a deputy sheriff, in the warrants unit or otherwise.
A. Demotion to Visitation Clerk
In June 2013, Angela Grider, the Sheriff’s Office’s director
of human resources, and Eva Talley-Sanders, the chief deputy,
held a meeting with Ford that she calls the “three choices”
No. 18-3217 3
meeting. Ford’s claims based on the ensuing events were resolved
on summary judgment, so we recount the facts in the
light most favorable to her. See Brown v. Milwaukee Board of
School Directors, 855 F.3d 818, 820 (7th Cir. 2017). Grider and
Talley-Sanders told Ford that she could either (a) accept a civilian
clerk position in the Main Control office with a cut in
pay, (b) resign, or (c) be fired.
The day after the meeting, Ford sent Grider an email requesting
accommodation under the ADA. Ford said that she
wanted to work and believed she could do so with reasonable
accommodations for her complex regional pain syndrome.
She asked for the “ADA form” for her doctor to fill out. Over
the following weeks, Ford and Grider emailed back and forth
concerning Ford’s request for accommodation and whether
the clerk position would suit her needs and abilities.
In a July 12 letter, Ford described accommodations that
she believed might enable her to perform the main control
clerk job. She requested a hands-free telephone, voice-activated
software for her computer, an ergonomic work station,
the ability to take breaks when needed to alleviate her pain,
and training for her supervisors. Two months later, Grider responded
in a letter granting each of these requests except the
voice-activated software.
The final exchanges concerning Ford’s ultimate placement
occurred in late September. Ford sent an email to Grider on
September 20, 2013 asking if the Main Control clerk was the
only open civilian position. Grider responded that it was the
“only position where we are able to meet the limitations of
your request.” Ford persisted, asking if Grider could provide
her with a list of open civilian positions. Grider did not respond
to this request. Three days later, Ford emailed again to
4 No. 18-3217
accept the position as a Main Control clerk. Only then did
Grider respond. She described Ford’s pending requests about
other possible assignments as “now a moot issue.” Ford then
shadowed other workers in various clerk roles, including
“basement control,” “book-out,” and jail visitation. She ultimately
accepted a position in the Visitation Office starting on
October 3, 2013.
B. Conflict with Co-Workers in the Visitation Office
Ford alleges that in her work in the Visitation Office, she
suffered almost three years of disability harassment. She
clashed repeatedly with her co-workers, first Carol Ladd and
Eva Watts, who worked in the Visitation Office from October
2013 to December 2014, and later with Vashni Hendricks, who
worked there from January 2015 to July 2016. Ford contends
that these conflicted relationships and the Sheriff’s Office’s
failure to address them created a hostile work environment
based on her disability.
Before turning to the facts of the alleged disability harassment,
we note the split procedural posture of this claim. On
summary judgment, the district court found that no reasonable
jury could impose liability on the Sheriff’s Office based on
the evidence of harassment by Hendricks from January 2015
to July 2016, primarily because Ford did not alert supervisors
that the friction stemmed from Hendricks’s hostility to her
disability. The court denied summary judgment, however,
based on the evidence of the earlier harassment by Ladd and
Watts. The jury ruled for the Sheriff’s Office. Section II of this
opinion addresses the propriety of dividing Ford’s hostile
work environment claim. For now, we summarize both the
facts that were before the jury and Ford’s account of Hendricks’s
conduct.
No. 18-3217 5
Ford and Ladd had disputes from the start. On October 3,
2013, Ford’s first day in the Visitation Office, Ford went to
Grider and “broke down in tears” describing Ladd’s alleged
bullying, unhelpfulness, and insensitivity to Ford’s disability.
At trial, Grider testified that she discounted this allegation because
Ladd did not “even know about [Ford’s] disability at
that moment.” Ladd testified and denied that she had made
any disparaging remarks to Ford on that date. Over the next
four months, Ford did not make any written complaints, but
she testified at trial that Ladd was harassing her constantly
during that time. Ford testified that Ladd mocked Ford’s
workstation accommodations, adjusted Ford’s chair into uncomfortable
positions, and disrupted work with loud speakerphone
conversations.
At the start of February 2014, Ford sent the first of many
written complaints to one of her supervisors, Lieutenant
James Walterman, regarding Ladd’s behavior. Watts began
working with Ford and Ladd in the Visitation Office soon after
that, and Ford testified that Watts began harassing her as
well. Ford relied on a tally of her emails and memos to Walterman
as proof of the disability harassment and the failure of
the Sheriff’s Office to address it. Lieutenant Walterman
acknowledged at trial that he received three memos from
Ford reporting, among other things, that Ford used more pain
medicine because of Ladd’s animosity, that Ford overheard
Ladd disparaging her disability, and that Ladd pushed Ford
physically with her chair. Ford offered as evidence a total of
fifteen memos and emails to Lieutenant Walterman during
this time with similar allegations.
The Sheriff’s Office argued at trial that these memos reported
only ordinary disputes about how to do the work of a
6 No. 18-3217
visitation clerk rather than complaints of disability harassment.
Walterman testified that he believed Ford took issue
with how Ladd did her work. Two other co-workers—not
otherwise involved in the suit—testified that Ford, Ladd, and
Watts argued a lot about how to do the work correctly. Walterman
also testified that he believed any bumps between coworkers
in the cramped Visitation Office were inadvertent.
Ford’s memos themselves lent some support to the Sheriff’s
Office defense. Ford complained that Ladd was too permissive
with inmates’ visitors, that she made personal calls at
work, that she criticized Ford’s leaving callers on hold, and
that she did not say good morning. Ford complained that
Watts left early and took work documents home, and that she
told Ladd to ignore Ford.
The Sheriff’s Office ultimately decided to transfer Ladd
and Watts out of the Visitation Office effective December 27,
2014 and January 3, 2015, respectively. At trial, Ford said that
Ladd and Watts’s departure “remedied” their conflict.
The jury concluded in a special verdict that Ford was “subjected
to negative comments and behavior by Ladd and
Watts,” and that “this conduct by Ladd and Watts was unwelcome.”
But the jury then found that Ford had failed to prove
that the unwelcome conduct “occurred because of the Plaintiff’s
disability,” thus ruling for the Sheriff’s Office on Ford’s
claim of a hostile work environment. Neither party objected
to the use of the special verdict form.
After Ladd and Watts left the Visitation Office, Vashni
Hendricks began working there with Ford. Ford alleges that
Hendricks immediately began harassing her because of her
disability. As noted, the district court granted summary
No. 18-3217 7
judgment on this portion of her claim, primarily on the
ground that Ford did not alert supervisors that friction with
Hendricks had anything to do with Ford’s disability. Ford
sent two complaints to Lieutenant Walterman, on January 20
and February 13, 2015, shortly after Hendricks arrived. Neither
memo mentioned Ford’s disability or asserted that Hendricks
subjected her to disability harassment. Then, sometime
in March 2015, Lieutenant Walterman was replaced by Lieutenant
Teri Nesbitt.
Ford cites a few later incidents that also have no apparent
link to her disability. On June 19, 2015, Ford wrote an email
describing disagreements with Hendricks on visitation policies
and asserting that Hendricks’s hand lotion made her sick.
That same day, Ford told her sergeant, Marvin Johnson, that
Hendricks had made a comment “about getting a gun and
blowing [Ford]’s brains out.” The Sheriff’s Office investigated
this claim. Hendricks’s written response explained that she
was describing a mass shooting in the news, not talking about
Ford. After reviewing this incident, along with the ongoing
animosity between Ford and Hendricks, the Sheriff’s Office
issued written discipline to both employees.1 Months later, in
February 2016, Hendricks stated that “it’s a good thing I don’t
have a gun,” but Ford does not describe much else about this
comment.
Ford’s disability surfaced during a January 2016 disagreement
about whether visitors to the Marion County Jail may
1 Ford received a “letter of reprimand,” while Hendricks received only
a “letter of caution,” because Ford unlike Hendricks had prior disciplinary
history. Specifically, Ford had been reprimanded for an incident on January
7, 2013 not otherwise relevant to this case.
8 No. 18-3217
use passports as a form of identification. Ford thought not;
Sergeant Johnson disagreed. Our accounts of the confrontation
come from Ford’s complaint to Lieutenant Tia Shanklin,2
Hendricks’s memo to Major Tanesha Crear, and the trial testimony
of Crear. Crediting Ford’s account, as we must, Ford
refused to let a visitor use a passport as identification, but
Johnson overruled her. After the visitor had left, Ford began
expressing her disagreement to Johnson. At this point Hendricks
arrived and berated Ford for “yelling” at her supervisor
in front of visitors. In none of the accounts did Hendricks
mention Ford’s disability. But Ford’s disability became an issue
when Major Crear intervened in the dispute, saying to
Ford that “anyone who was supposedly in as much pain as
[Ford] was claiming to be in would not have the energy to be
up in front of the Supervisor’s desk, waving [her] arms
around.” Crear reproached Ford for her behavior.
Ford has offered evidence of two instances of alleged harassment
where Hendricks mentioned Ford’s disability. Both
apparently stemmed from Hendricks’s resentment that she
had to work shifts in both the Visitation Office and the Main
Control Office; Ford’s disability excused her from the Main
Control shifts. First, Ford testified that, in September 2015,
Hendricks told her that she should have to prove she was disabled
to avoid Main Control duty. Shanklin witnessed this
event but told Ford that Hendricks was “just kidding” or “just
joking.” Second, on June 22, 2016, Hendricks told Ford that
she needed to go to Main Control to see just how hard it was.
Hendricks also joked that she “caught” carpal tunnel
2 It appears that at some point in July or August 2015, Shanklin replaced
Nesbitt as lieutenant for the visitation clerks. The parties do not
discuss this second change in supervisors.
No. 18-3217 9
syndrome from working over there. Ford described the latter
incident in a complaint to Lieutenant Shanklin. The next
month, the Sheriff’s Office transferred Hendricks out of the
Visitation Office as a result of the ongoing conflict between
Ford and Hendricks.
C. Change to a Rotating Schedule
The second claim at trial arose from the Sheriff’s Office’s
refusal to adjust Ford’s schedule as a reasonable accommodation
under the ADA. On January 3, 2015—the same day that
Hendricks replaced Ladd and Watts—the Sheriff’s Office
switched Ford from a fixed to a rotating schedule. Ford requested
later that month to be returned to a fixed schedule,
saying that the rotating schedule exacerbated her complex regional
pain syndrome. Ford attached a physician’s note from
her doctor to that effect. Grider replied in an email two weeks
later denying Ford’s request because “it [was] not a reasonable
accommodation.”
The district court denied the Sheriff’s Office’s motion for
summary judgment on this claim, finding that the Office had
not shown an undue hardship as a matter of law under
42 U.S.C. § 12112(b)(5)(A). Ford’s arguments on appeal do not
dwell on the details of the schedule issue, and we need not do
so either. Suffice it to say that the evidence about the positive
and negative effects of the schedule change was in conflict,
and the jury found for the defense on the ground that Ford
had failed to prove that she needed the accommodation of the
fixed schedule. The jury did not reach the undue hardship
question.
10 No. 18-3217
D. Ford’s Applications for Promotions
A final set of claims arose from Ford’s four unsuccessful
applications to be transferred or promoted within the Sheriff’s
Office between March 2016 and February 2017. Ford argues
that all these rejections were illegally based on her disability
and/or amounted to retaliation for her earlier protected activity
under the ADA. The district judge granted summary judgment
for the Sheriff’s Office on the failure-to-promote claims,
finding that Ford had simply not supported these claims with
evidence that would support a reasonable inference of unlawful
motive. In August 2017, Ford secured a transfer to the sexand
violent-offender registry unit, where she continued to
work for the Sheriff’s Office at the time of trial.
II. The District Court’s Use of Partial Summary Judgment
Ford’s principal argument on appeal is that the district
court improperly divided the issues presented in her case. She
argues the court erred by granting partial summary judgment
on an indivisible claim for a hostile work environment. The
Supreme Court’s ruling in National R.R. Passenger Corp. v.
Morgan, 536 U.S. 101 (2002), instructs courts to evaluate each
unlawful employment practice as a distinct but indivisible
claim, but it did not prohibit the district court’s actions in this
case. The district court had sound reasons, permitted under
Morgan, to treat differently the alleged disability harassment
by Watts and Ladd, on one hand, and Hendricks, on the other.
A. Principles Governing Partial Summary Judgment
As a general matter, Federal Rule of Civil Procedure 56 has
long authorized partial grants of summary judgment. See,
e.g., American Nurses’ Ass’n v. State of Ill., 783 F.2d 716, 729 (7th
Cir. 1986) (“[M]otions for partial summary judgment are
No. 18-3217 11
permitted.”). The 2010 revisions to Rule 56 make this unmistakably
clear. See Fed. R. Civ. P. 56(a), cmt. 2010 Amendment
(“The first sentence is added to make clear at the beginning
that summary judgment may be requested not only as to an
entire case but also as to a claim, defense, or part of a claim or
defense.”). A district court also may enter an order stating any
material fact that is not genuinely in dispute for trial.
Fed. R. Civ. P. 56(g). In short, “[r]equests for (and grants of)
partial summary judgment, including summary judgment as
to fewer than all parties and claims, are nothing new.” Hotel
71 Mezz Lender LLC v. National Retirement Fund, 778 F.3d 593,
606 (7th Cir. 2015).
In the employment discrimination context, however, the
enforcement provisions of Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e-5, have been construed to impose limits
on the use of partial summary judgment.3 Title VII authorizes
suit based specifically on an “unlawful employment practice.”
42 U.S.C. § 2000e-5(e). In Morgan, the Supreme Court
considered whether events that took place outside the relevant
statute of limitations period could support a plaintiff’s
claim of discrimination. 536 U.S. at 108–09. Morgan held that
courts must consider all events that belong to a “single unlawful
employment practice,” no more and no less, regardless
of whether they fell within the statutory time period. Id. at
117–18.
In our cases applying Morgan, we have ruled that district
courts may not splinter a single employment practice even if
3 The ADA incorporates by reference the enforcement provisions of
Title VII, 42 U.S.C. § 12117(a), so Morgan guides our decision on Ford’s
ADA claims.
12 No. 18-3217
claims based on some of the underlying conduct would no
longer be timely on their own. In Isaacs v. Hill’s Pet Nutrition,
Inc., 485 F.3d 383 (7th Cir. 2007), we reversed a grant of summary
judgment on plaintiff’s hostile environment claim under
Title VII. The plaintiff offered evidence that she had been
sexually harassed while on two different teams in the factory
where she worked. The district court had divided the claim in
two based on the identities of the harassers, finding that
claims based on the conduct of the first team were time-barred
and that the conduct of the second team was not severe
enough to amount to unlawful harassment. We rejected the
division, noting that Title VII makes the employer liable for
complying with the law, and the evidence showed that the
plaintiff had suffered a continuous course of harassment coordinated
between the two teams of co-workers. 485 F.3d at
385–86. We emphasized that all of the conduct occurred under
the same management, that the plaintiff had complained repeatedly
about harassment by both teams, and that management
had failed to respond. Id.
We followed up on that point in Bright v. Hill’s Pet Nutrition,
Inc., 510 F.3d 766 (7th Cir. 2007), which involved the same
factory as Isaacs. We ordered a new trial in Bright because the
district judge had unduly restricted the evidence of earlier
sexual harassment that occurred outside the limitations period
and before the employer took disciplinary action against
one form of sexual harassment. We explained: “Employers
may not turn a practice that Morgan deems unitary into two
or more distinct practices by calling each subdivision of the
workplace a separate ‘team.’” Id. at 768.
It would be odd if this principle restricted a district court’s
power to grant partial summary judgment against untimely
No. 18-3217 13
claims but allowed a district court to slice apart timely claims.4
Whether or not timeliness is at issue, courts may grant partial
summary judgment as to different unlawful employment
practices in one lawsuit, but not as to part of a single unlawful
employment practice. See Morgan, 536 U.S. at 118 (“The statute
does not separate individual acts that are part of the hostile
environment claim from the whole for the purposes of
timely filing and liability.”).
That principle is easier to state than to apply. How should
a district court tell the difference, and was the court’s partial
grant of summary judgment lawful in this case? We first consider
Ford’s argument that the court improperly separated
different types of ADA claims, and then her argument that the
court improperly divided her evidence about Hendricks’s
harassment from that of Ladd and Watts.
B. Separating Different Types of ADA Claims
For purposes of summary judgment, a district court may
properly separate from each other claims based on specific
adverse employment actions, retaliation, denial of reasonable
accommodation, and hostile work environment. These claims
require proof of different factual circumstances under different
legal tests. A summary of the relevant law demonstrates
why courts must treat them as distinct “unlawful employment
practices.”
The ADA prohibits employment discrimination on the basis
of disability. 42 U.S.C. § 12112(a). Like other employment
discrimination statutes, the ADA also prohibits retaliating
4 The Sheriff’s Office does not contend that any part of Ford’s lawsuit
was time-barred. Ford filed her first of two charges of discrimination with
the EEOC in March 2015.
14 No. 18-3217
against employees for asserting their rights. See § 12203(a);
see also § 2000e-3(a) (Title VII). The duty to accommodate an
employee’s disability is specific to the ADA. See § 12112(b)(5).
A plaintiff must first show that the requested accommodation
is reasonable on its face. That shifts the burden to the employer
to prove that the accommodation would impose on the
employer an undue hardship as defined by the ADA. See Majors
v. General Electric Co., 714 F.3d 527, 535 (7th Cir. 2013);
42 U.S.C. § 12111(9)–(10).
In Morgan, the Supreme Court drew a sharp line between
claims for “discrete” acts of discrimination and hostile work
environment claims. See 536 U.S. at 115. A hostile work environment
“occurs over a series of days or perhaps years and,
in direct contrast to discrete acts, a single act of harassment
may not be actionable on its own.” Id. Hostile work environment
claims have their legal basis in the phrase “terms, conditions,
and privileges of employment” present in the ADA
and other employment discrimination statutes. 42 U.S.C.
§ 12112(a); see Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993).
A hostile work environment exists “[w]hen the workplace is
permeated with discriminatory intimidation, ridicule, and insult
that is sufficiently severe or pervasive to alter the conditions
of the victim’s employment and create an abusive working
environment.” Id. (citations omitted). “A hostile work environment
claim is composed of a series of separate acts that
collectively constitute one ‘unlawful employment practice.’”
Morgan, 536 U.S. at 117.
Thus, certain facts may support one type of claim but not
another. Our decisions have distinguished among the foregoing
categories of claims. See, e.g., Passananti v. Cook Cnty.,
689 F.3d 655, 659 (7th Cir. 2012) (reinstating jury verdict for
No. 18-3217 15
plaintiff on hostile work environment but not discriminatory
termination); Fine v. Ryan Int’l Airlines, 305 F.3d 746, 751–52
(7th Cir. 2002) (upholding summary judgment as to discrimination
accompanied by plaintiff’s verdict on retaliation);
Rehling v. City of Chicago, 207 F.3d 1009, 1013–14 (7th Cir. 2000)
(affirming summary judgment as to reasonable accommodation
but not as to discrimination). Distinct legal theories denote
independent unlawful employment practices that may
be addressed separately.5
C. Dividing the Hostile Work Environment Allegations
A more difficult question is whether and when a plaintiff’s
hostile work environment claim comprises more than one unlawful
employment practice under the rule in Morgan. If the
alleged disability harassment by Ladd and Watts, as well as
that by Hendricks, all belonged to the same employment
practice, then it would have been improper for the district
court to grant partial summary judgment as to only Hendricks’s
conduct. We conclude, however, that Ford’s suit presented
not one but two disability harassment employment
5 Ford relies on a statement from the unpublished second ruling in
Bright to discount these rulings: “A hostile work environment is actionable
as sex discrimination; there are not distinct ‘claims’ for hostile work environment
and sex discrimination.” 342 F. App’x 208, 209 (7th Cir. 2009).
Quoted out of context, this statement seems to contradict the Supreme
Court’s holding in Morgan that “[h]ostile environment claims are different
in kind from discrete acts.” 536 U.S. at 115. But the second ruling in Bright
dealt with an unusual circumstance where the district court had narrowly
limited the issues for retrial. Our non-precedential order did not declare,
and could not have declared, that all employment discrimination claims
must succeed or fail as one at summary judgment.
16 No. 18-3217
practices, and that Bright and Isaacs are distinguishable in this
regard.
As a threshold matter, we hold that hostile work environment
claims are cognizable under the ADA. The district court
followed the decisions of this court that have assumed they
are. See, e.g., Lloyd v. Swifty Transp., Inc., 552 F.3d 594, 603 (7th
Cir. 2009); Mannie v. Potter, 394 F.3d 977, 982 (7th Cir. 2005).
At some point, however, extended hypothetical analysis
should end. Every other circuit to decide the question has
held that it is possible to bring an ADA claim for a hostile environment.
We agree with our colleagues in other circuits that a plaintiff
may assert a claim for an illegal hostile work environment
on the basis of disability under 42 U.S.C. § 12112(a). The
claim’s legal basis is simple: Congress wrote the ADA using
the language of Title VII, and Title VII recognizes hostile work
environment claims. See, e.g., Fox v. Costco Wholesale Corp.,
918 F.3d 65, 74 (2d Cir. 2019) (detailing this argument). Five
circuits have held that such claims are permitted under the
ADA. See id.; Fox v. General Motors Corp., 247 F.3d 169, 175–76
(4th Cir. 2001); Flowers v. Southern Regional Physician Services
Inc., 247 F.3d 229, 233 (5th Cir. 2001); Shaver v. Indep. Stave Co.,
350 F.3d 716, 719–20 (8th Cir. 2003); Lanman v. Johnson Cty.,
393 F.3d 1151, 1155–56 (10th Cir. 2004). No circuit has held to
the contrary. We adopt the position of our colleagues who
have recognized hostile-environment claims under the ADA.6
6 The First, Third, Ninth, Eleventh, and D.C. Circuits have assumed
without deciding that such claims are possible. See Murray v. Warren
Pumps, Inc., 821 F.3d 77, 86 n.1 (1st Cir. 2016); Walton v. Mental Health Ass’n
of Southeastern Pennsylvania, 168 F.3d 661, 666–67 (3d Cir. 1999); Brown v.
City of Tucson, 336 F.3d 1181, 1190 (9th Cir. 2003); Cooper v. CLP Corp.,
No. 18-3217 17
We turn to whether the district court improperly divided
a single unlawful employment practice in this case. Morgan
taught that, in general, “the entire hostile work environment
encompasses a single unlawful employment practice,” but
cautioned that acts bearing “no relation” to one another
would belong to separate employment practices. 536 U.S. at
117–18. Morgan also said that “certain intervening action by
the employer” could sever a hostile work environment claim.
Id. at 118. It also quoted favorably the Ninth Circuit’s reasons
to find a single practice in Morgan itself: “the pre- and postlimitations
period incidents involve[d] the same type of employment
actions, occurred relatively frequently, and were
perpetrated by the same managers.” Id. at 120, quoting Morgan
v. Nat’l R.R. Passenger Corp., 232 F.3d 1008, 1017 (9th Cir.
2000) (alteration in original). Morgan thus signaled that hostile
work environments can sometimes be broken apart for legal
analysis but did not specify when.
Based on the Court’s guidance, our cases interpreting Morgan,
and cases from other circuits, we can identify “various
factors that should guide the Morgan ‘relatedness’ inquiry.”
McGullam v. Cedar Graphics, Inc., 609 F.3d 70, 81 (2d Cir. 2010)
(Calabresi, J., concurring). The simplest factor is time: A significant
gap between alleged incidents of discriminatory harassment
can sever the hostile work environment claim. See
Milligan-Grimstad v. Stanley, 877 F.3d 705, 713 (7th Cir. 2017)
(finding separate employment practices where spans “as
large as two or three years” separated the incidents); Lucas v.
679 F. App’x 851, 852–53 (11th Cir. 2017); Hill v. Assocs. for Renewal in Educ.,
Inc., 897 F.3d 232, 236 (D.C. Cir. 2018). The Sixth Circuit has recognized
the claim, but in a non-precedential decision, Trepka v. Bd. of Educ., 28 F.
App’x 455, 461 (6th Cir. 2002).
18 No. 18-3217
Chicago Transit Auth., 367 F.3d 714, 727 (7th Cir. 2004) (more
than three years). There is no magic number; the question is
whether “the series of allegations describe continuous conduct
rather than isolated incidents.” Milligan-Grimstad,
877 F.3d at 713. In this case, a gap of eighteen months separated
Ladd and Watts’s departure and the date in June 2016
when Ford put the Sheriff’s Office on notice of disability harassment
by Hendricks. In saying this, we must acknowledge
that, according to Ford’s testimony, she was subjected to a
continuous pattern of harassment, first by Ladd and Watts
and then by Hendricks. But from the perspective of the employer
that she seeks to hold liable, there was a significant
gap. Ford complained about conflict with Hendricks, but it
was not until June 2016, eighteen months after Hendricks
joined the Visitation Office, that Ford complained to her supervisors
that Hendricks was harassing her because of her disability.
That fact distinguishes this case from Bright and Isaacs,
where the sexual harassment and the plaintiffs’ complaints
about sexual harassment were essentially continuous.7
On the other hand, our cases make clear that “the harassers’
identities, whether they acted in concert or isolation,
and whether they harassed in distinct or similar fashions” do
not bear on the inquiry. Milligan-Grimstad, 877 F.3d at 712.
Isaacs and Bright emphasized this point. Both cases involved
alleged harassment by multiple groups of the plaintiffs’ male
co-workers. We explained that which co-workers were involved
and how they harassed did not matter because the employer,
not the co-workers, is the party that is legally obliged
7 Ford also alleges a possible incident in September 2015, but the Sheriff’s
Office did not have notice of it, as we discuss below regarding the
merits of the summary judgment order.
No. 18-3217 19
to comply with Title VII. Isaacs, 485 F.3d at 386; Bright,
510 F.3d at 769–70.
A change in managers can affect whether incidents are related.
Unlike the actions of co-workers, the actions of supervisors
impart vicarious liability to the employer for discriminatory
harassment. See Burlington Industries, Inc. v. Ellerth,
524 U.S. 742, 765 (1998). As a result, we observed in Isaacs: “An
employee moved from one plant to another, where a different
set of managers made decisions about working conditions,
might well experience different hostile environments for the
purpose of Morgan.” 485 F.3d at 386; see Morgan, 536 U.S. at
120 (citing “perpetrat[ion] by the same managers” as a reason
to find a single employment practice). That said, “routine personnel
actions” not taken to alleviate the harassment are less
significant. See Vickers v. Powell, 493 F.3d 186, 199 (D.C. Cir.
2007). Here, Ford’s supervisor changed in between the two
periods of harassment. Lieutenant Walterman left his post not
long after Ladd and Watts’s departures. Lieutenant Nesbitt
and later Lieutenant Shanklin had direct control over the
Sheriff’s Office’s response to possible disability harassment of
Ford from March 2015 forward, during the alleged harassment
by Hendricks.
Finally, as noted, “certain intervening action by the employer”
can interrupt a hostile work environment claim. Morgan,
536 U.S. at 118. Although the Supreme Court did not say
which intervening actions qualify, we have held that “prompt
and appropriate corrective action reasonably likely to prevent
the harassment from recurring” defeats employer liability for
co-worker harassment. Porter v. Erie Foods Int’l, Inc., 576 F.3d
629, 636 (7th Cir. 2009). The same standard can determine
whether an action suffices to sever a hostile work
20 No. 18-3217
environment claim. Bright held that a two-week suspension of
the harassers, with no evident effect on their sexist behavior,
did not alter the duration of the unlawful employment practice.
510 F.3d at 769–70. A case from the Fifth Circuit, by comparison,
found that a transfer made to separate the plaintiff
and the harasser did sever the hostile work environment
claim. See Stewart v. Mississippi Transp. Comm’n, 586 F.3d 321,
329 (5th Cir. 2009).
We agree that removing alleged harassers permanently, as
the Sheriff’s Office did with Ladd and Watts, can bring an end
to the unlawful employment practice at issue. Cf. Saxton v.
Am. Tel. & Tel. Co., 10 F.3d 526, 535 (7th Cir. 1993) (finding that
transfer of the harasser was “a sufficient safeguard against
any recurrence of the harassment” to defeat employer liability).
As explained above, however, an incidental rotation of
co-workers not calculated to address the harassment does not
necessarily affect a hostile work environment claim against
the employer. See Isaacs, 485 F.3d at 385–86. Only a transfer
that amounts to “intervening action by the employer” can
close out a distinct unlawful employment practice. Morgan,
536 U.S. at 118.
We are not suggesting there is a hard and fast rule to apply
here. At least for now, we are applying a standard implied in
Morgan to determine when different episodes of unlawful
harassment, whether based on disability, race, sex, or any
other protected category, may be treated separately by a district
court. The following factors—all present in Ford’s case—
support a finding that alleged incidents of harassment have
“no relation” to each other under Morgan: a substantial passage
of time without incident known to the employer, a
change in the employee’s supervisors, and an intervening
No. 18-3217 21
remedial action by the employer. The district court here incorrectly
divided the harassment claim based on the identities of
the harassers rather than the “intervening action” of the Sheriff’s
Office, but the court reached the right result. We affirm
based on the eighteen-month gap, the departure of Lieutenant
Walterman, and the transfer of Ladd and Watts calculated to
end their alleged harassment. On the facts of Ford’s case, the
court did not err in independently evaluating two distinct
claims for a hostile work environment.
III. Ford’s Substantive Arguments for Reversal
Turning to the merits of Ford’s claims, she challenges on
appeal the partial grant of summary judgment on some
claims. She also argues that several evidentiary rulings and a
jury instruction require a new trial on the claims that were
tried. We consider these arguments in turn.
A. Summary Judgment Ruling
Ford appeals the grant of summary judgment on: (1) her
claim that the demotion to visitation clerk was not a reasonable
accommodation, but in fact was discriminatory and retaliatory;
(2) the part of her hostile work environment claim
based on Hendricks’s actions from January 2015 forward, as
discussed above; and (3) her discrimination and retaliation
claims stemming from the four decisions not to promote her
after March 2016. We review de novo a district court’s grant of
summary judgment. Brown, 855 F.3d at 820.
1. Demotion to Visitation Clerk
Ford argues that, although the Sheriff’s Office found a new
position for her after the accident, the visitation clerk job was
not a reasonable accommodation because better vacancies
were available at the time. The ADA required the Sheriff’s
22 No. 18-3217
Office to canvass available positions and, if a vacant job existed
that Ford was qualified to perform with or without reasonable
accommodations, to offer it to her. See Hendricks-Robinson
v. Excel Corp., 154 F.3d 685, 694–95 (7th Cir. 1998). Ford’s
simple statement that she “want[ed] to work” was enough to
trigger this duty to accommodate. Id. at 694. The Sheriff’s Office
asserts that it satisfied its duty by reassigning Ford to the
visitation clerk position, which it admits was a demotion from
her prior post as a warrants deputy.
A demotion can be a reasonable accommodation when the
employer cannot accommodate the disabled employee in her
current or prior jobs or an equivalent position. See Gile v.
United Airlines, Inc., 213 F.3d 365, 374 (7th Cir. 2000); Hendricks-
Robinson, 154 F.3d at 694–95. But if Ford could show
that she qualified for a vacant position that more closely
matched her previous job, the ADA would have obliged the
Sheriff’s Office to offer it to her. The EEOC’s interpretive guidance
on this point states: “An employer may reassign an individual
to a lower graded position if … there are no vacant
equivalent positions for which the individual is qualified with
or without reasonable accommodation.” 29 C.F.R. Pt. 1630,
App. § 1630.2(o) (emphasis added). The Tenth Circuit has examined
this issue, along with the EEOC’s guidance, and concluded
that an employer “should first consider lateral moves
to positions that are regarded as equivalent.” Smith v. Midland
Brake, Inc., 180 F.3d 1154, 1177 (10th Cir. 1999). We agree.8
8 Although EEOC interpretive guidance does not receive deference
under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467
U.S. 837 (1984), it does “reflect a body of experience and informed judgment
to which courts and litigants may properly resort for guidance” and
is therefore “entitled to a measure of respect.” Richardson v. Chicago Transit
No. 18-3217 23
To take advantage of this principle, however, Ford needed
to come forward with evidence that a more equivalent position
for which she was qualified was vacant at the relevant
time. See Dunderdale v. United Airlines, Inc., 807 F.3d 849, 856
(7th Cir. 2015). Ford’s complaints about terse, unhelpful responses
from Grider, the director of human resources, do not
control this question. We have repeatedly explained that a
problem in the “interactive process” to reach an accommodation
is not itself actionable; the ADA looks to ends, not means.
See, e.g., Bunn v. Khoury Enterprises, Inc., 753 F.3d 676, 683 (7th
Cir. 2014); Rehling v. City of Chicago, 207 F.3d 1009, 1015–16
(7th Cir. 2000). “It is well-established that an employer is obligated
to provide a qualified individual with a reasonable accommodation,
not the accommodation he would prefer.” Id.
at 1014.
To survive summary judgment, Ford needed to present
evidence that some vacant position existed closer to her original
job, rendering the visitation clerk demotion unreasonable.
She failed to do so. The relevant time period for possible
vacancies began in June 2013, when Ford requested accommodation
under the ADA. See EEOC, Enforcement Guidance:
Reasonable Accommodation and Undue Hardship Under the
Americans With Disabilities Act (2002), reprinted in 2 EEO
Compl. Man. (BNA) at 902:151 (“’Vacant’ means that the position
is available when the employee asks for reasonable accommodation,
or that the employer knows that it will become available
within a reasonable amount of time.” (emphasis added)).
Until Ford requested accommodation, the Sheriff’s Office was
Auth., 926 F.3d 881, 889 (7th Cir. 2019), citing Federal Express Corp. v.
Holowecki, 552 U.S. 389, 399 (2008).
24 No. 18-3217
not on notice of the need to consider her for potential reassignment
to vacancies that arose.
Ford identified only two possible vacancies. First, she provided
some evidence that civilian vacancies opened in the
warrants division between February and May 2013. The district
court correctly found that any such vacancies fell outside
the relevant period. Second, Ford argued that dispatcher positions
were available “constantly” but that she was never
given an opportunity to train for one. Yet the record also contains
uncontradicted evidence that dispatcher positions involved
duties that Ford could not perform even with accommodation.
In short, Ford failed to introduce evidence suggesting
that the visitation clerk reassignment was not a reasonable
accommodation.
Ford also argues that the demotion to visitation clerk was
an adverse action that can support additional claims for disability
discrimination and retaliation. We do not see how the
reassignment could be simultaneously a reasonable accommodation
and an adverse employment action. Where both
sides agreed that Ford could no longer serve as a sheriff’s deputy,
reasonable accommodation standards provide the better
framework. Cf. 42 U.S.C. § 12111(9)(B) (defining “reasonable
accommodation” to include “reassignment to a vacant position”).
We have trouble imagining how a demotion that qualifies
as a reasonable accommodation required by the ADA can,
at the same time, constitute disability discrimination or retaliation
prohibited by the ADA. The district court properly
granted summary judgment on the claims arising from Ford’s
transfer to the Visitation Office.
No. 18-3217 25
2. Hostile Work Environment After January 2015
As explained, the district court properly considered two
separate periods of alleged hostile work environment based
on disability harassment. The district court correctly awarded
summary judgment for the later period from January 2015 to
July 2016, involving Hendricks. The same standard governs
hostile work environment claims under the ADA as under
other employment discrimination laws.9 To survive summary
judgment, plaintiffs must present evidence that: “(1) they
were subject to unwelcome harassment; (2) the harassment
was based on their [disability]; (3) the harassment was so severe
or pervasive as to alter the conditions of employment and
create a hostile or abusive working environment; and (4) there
is a basis for employer liability.” Johnson v. Advocate Health &
Hosps. Corp., 892 F.3d 887, 900 (7th Cir. 2018) (racially hostile
environment claim). On the final prong, employers are strictly
liable for harassment committed by supervisors, but liable for
harassment by co-workers only if the employer was “negligent
either in discovering or remedying the harassment.” Nischan
v. Stratosphere Quality, LLC, 865 F.3d 922, 930 (7th Cir.
2017).10
The district court correctly held that Ford failed to show a
genuine issue of material fact under this standard. She offered
9 See Mannie v. Potter, 394 F.3d at 982; Fox v. General Motors, 247 F.3d
at 177; see also 1 Janet Arterton & Gary Phelan, Disability Discrimination
in the Workplace § 2:18 n.8 (2019) (surveying circuits).
10 An employer can still avoid strict liability for a supervisor’s harassment
if it did not involve a “tangible employment action” and the employer
can prove an affirmative defense. See Jackson v. County of Racine,
474 F.3d 493, 501 (7th Cir. 2007), citing Burlington Industries, Inc. v. Ellerth,
524 U.S. 742, 765 (1998).
26 No. 18-3217
evidence of three incidents involving Hendricks where the
employer arguably should have known they related to Ford’s
disability. In September 2015, Hendricks told Ford that she
should be required to prove her disability in order to avoid
shifts in the Main Control Office, and Lieutenant Shanklin
overheard this comment. The second comment was from Major
Crear, who questioned during the January 2016 passport
incident whether Ford was really “in as much pain as [she]
was claiming to be.” Finally, in June 2016, Hendricks insinuated
that Ford was faking her disability to avoid the difficult
work in the Main Control Office. Ford reported this final comment
in a written complaint to Shanklin. This was her fifth
written complaint regarding Hendricks, but the first to mention
Ford’s disability.
As a matter of law, the first two incidents simply do not
show conduct “sufficiently severe or pervasive to have altered
the conditions of her employment such that it created an abusive
working environment.” Passananti v. Cook Cty., 689 F.3d
655, 667 (7th Cir. 2012). At worst they amount to “[o]ffhand
comments, isolated incidents, and simple teasing.” Id. Regarding
the employer liability prong, the overheard remark
in September 2015 was not “sufficiently obvious” harassment
to give the Sheriff’s Office constructive notice of disability harassment.
Hrobowski v. Worthington Steel Co., 358 F.3d 473, 478
(7th Cir. 2004). Not until the written complaint in June 2016
was the Sheriff’s Office on notice that Ford believed Hendricks
was harassing her based on her disability. The Office
then took prompt action, transferring Hendricks out of the
Visitation Office the next month. This transfer defeats any
claim that the Office was negligent in addressing any known
disability harassment by Hendricks. See Muhammad v. Caterpillar,
Inc., 767 F.3d 694, 698 (7th Cir. 2014) (“Title VII requires
No. 18-3217 27
only that employers take action reasonably calculated to stop
unlawful harassment … .”); Saxton, 10 F.3d at 535–36 (holding
that transfer of the harasser is such an action). The district
court did not err by granting summary judgment on the claim
that the Sheriff’s Office should be held liable for a hostile work
environment created by Hendricks on the basis of disability.
3. Failures to Promote
The final category of claims resolved at summary judgment
arose from four applications for promotion between
March 2016 and February 2017. The district court assumed
that the four positions would have been promotions for Ford,
and we assume so as well.11
11 The Sheriff’s Office argues that Ford exhausted her administrative
remedies only as to the first of the four denied promotions, which was the
only one that preceded her second EEOC charge, filed March 15, 2016. The
three later denials occurred after she filed that second EEOC charge. We
disagree with this defense. Ford alleged the three later denials were in part
retaliation against her earlier ADA-protected activity. We have long held
that an employment-discrimination plaintiff can include in her court complaint
allegations of discrimination that are “like or reasonably related to”
the allegations in her EEOC charge, which typically means the new claims
must describe the same conduct and implicate the same individuals as
those in the charge. E.g., Cheek v. Western and Southern Life Ins. Co., 31 F.3d
497, 501 (7th Cir. 1994). More specifically, we have long held that a plaintiff
need not file a new charge alleging post-charge retaliation by the employer.
E.g., Malhotra v. Cotter & Co., 885 F.2d 1305, 1312 (7th Cir. 1989)
(“we join the other circuits that have spoken to the question in adopting
the rule that a separate administrative charge is not prerequisite to a suit
complaining about retaliation for filing the first charge”), superseded by
statute on other grounds; McKenzie v. Illinois Dep’t of Transportation, 92
F.3d 473, 482–83 (7th Cir. 1996) (collecting cases); Luevano v. Wal-Mart
Stores, Inc., 722 F.3d 1014, 1030 (7th Cir. 2013) (“to avoid futile procedural
technicalities and endless loops of charge/retaliation/charge/retaliation,
28 No. 18-3217
A failure to promote is a discrete act under employment
discrimination laws, so each denied promotion can amount to
a “separate actionable ‘unlawful employment practice.’” Morgan,
536 U.S. at 114. One way to prove a claim for a discriminatory
failure to promote is for the plaintiff to show: (1) she
belongs to a protected class, (2) she applied for and was qualified
for the position sought, (3) she was rejected for that position,
and (4) the employer granted the promotion to someone
outside of the protected group who was not better qualified
than the plaintiff. E.g., Grayson v. City of Chicago, 317 F.3d
745, 748 (7th Cir. 2003). Ford attempted this approach to
proof, but that required her to compare herself to the successful
applicant for each job. Only then would the burden of production
shift to the Sheriff’s Office to give non-discriminatory
reasons for the promotion decisions, which Ford could rebut
with evidence of pretext. See id.; McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802–03 (1973); see generally St. Mary’s
Honor Ctr. v. Hicks, 509 U.S. 502, 507–08 (1993) (describing the
mechanics of burden-shifting in discrimination law).
Nearly all of Ford’s purported evidence of discrimination
is irrelevant under these standards. Ford argues that the Sheriff’s
Office treated Ladd, Watts, Hendricks, and Johnson better
etc., … a plaintiff who alleges retaliation for having filed a charge with the
EEOC need not file a second EEOC charge to sue for that retaliation”); see
also Haugerud v. Amery School Dist., 259 F.3d 678, 690 (7th Cir. 2001) (considering
merits of claims stemming from months after EEOC charge
where “one would reasonably expect [the incidents] to be discovered during
the course of an EEOC investigation into the allegations in the
charge”). In this case, an investigation of the first denied promotion could
reasonably be expected to have delved into the later denials that occurred
in the next few months. There was no need for Ford to have filed a third
EEOC charge alleging the later denials were also retaliatory.
No. 18-3217 29
than it treated her in various ways. But none of these individuals
competed for the specific promotions that Ford sought.
Ford also discusses at length deficiencies she identified in the
Office’s ADA policies. An employer’s “general policy and
practice with respect to minority employment” can be relevant
evidence of pretext or discrimination, see McDonnell
Douglas, 411 U.S. at 804–05; McCluney v. Joseph Schlitz Brewing
Co., 728 F.2d 924, 928 (7th Cir. 1984), and the same is true for
disability discrimination. Yet such evidence must undercut
the specific justifications given by the employer. General allegations
of an “ongoing history of discrimination” are not
enough to impugn a particular employment decision. Sublett
v. John Wiley & Sons, Inc., 463 F.3d 731, 739 (7th Cir. 2006).
Ford identified four specific rejections. In March 2016, she
applied to become a clerk for the sex- and violent-offender
registry. Grider told Ford she was not selected because the division
commander wanted someone without disciplinary history
within the past year, which meant that Ford’s August
2015 reprimand disqualified her. In the summer of 2016, Ford
applied for an “HR Generalist” position. She received an interview
but was denied the position. In October 2016, she applied
for an intelligence analyst position; she was denied an
interview because of her “attendance history and/or discipline
history.” In February 2017, Ford interviewed for two
open analyst positions but was not hired.
The district court correctly found no material disputes of
fact as to any of the promotion decisions. The record discloses
little about any of the people who were named to the jobs.
Ford identifies no specific person who filled the March 2016
opening. Ford identified the people chosen for the three later
jobs but presented little evidence about them beyond their
30 No. 18-3217
names. All that we know comes from a single page of Ford’s
declaration in opposition to summary judgment, which contains
conclusory statements regarding the other applicants’
lack of merit. We agree with the district court that Ford did
not present enough evidence about the jobs or how she compared
to the other candidates to support an inference of discrimination.
The Sheriff’s Office also presented unrebutted, non-discriminatory
reasons for each decision. Ford’s disciplinary history
precluded her consideration for the March 2016 and October
2016 positions, per Sheriff’s Office policy. Ford argues
that this policy did not disqualify her, but she provided no
evidence to substantiate the point. Cf. Hill v. Potter, 625 F.3d
998, 1004 (7th Cir. 2010) (explaining that a plaintiff “must do
more than simply deny that the [neutral] Policy exists”). The
HR Generalist position went to a candidate with superior Microsoft
Office and Excel skills, a justification that Ford has not
contested. Finally, the February 2017 analyst position simply
went to a better qualified candidate, again according to unrebutted
testimony from the Sheriff’s Office. None of the alleged
pretext evidence that Ford identified bore upon these specific
hiring decisions.
Ford argues that the promotion denials were also unlawful
retaliation, which as explained above is a separate theory
for relief. Yet Ford has not shown, in the district court or on
appeal, how her retaliation claims stand apart from her discrimination
claims. She relies on the same evidence to support
both. The district court treated the retaliation and discrimination
claims as co-extensive. It did not err by granting summary
judgment on each of the promotion claims.
No. 18-3217 31
B. Alleged Errors at Trial
Ford argues that we must remand for a new trial on her
remaining claims because of evidentiary rulings by the district
judge and an unnecessary jury instruction. Neither argument
is persuasive.
1. Excluded Background Evidence
Ford argues that the district court denied her a fair trial on
the two claims that went to trial—the alleged hostile environment
created by Ladd and Watts, and the scheduling accommodation
she sought—by refusing to admit more background
evidence about her disability-related disputes with
the Sheriff’s Office. We review evidentiary rulings for an
abuse of discretion. E.g., Thompson v. City of Chicago, 722 F.3d
963, 971 (7th Cir. 2013). Even if we found such an abuse of
discretion, we would order a new trial only if there were a
significant chance that the ruling affected the outcome of the
trial. E.g., Smith v. Hunt, 707 F.3d 803, 808 (7th Cir. 2013).
Ford identifies four categories of excluded evidence that
she argues amount to reversible error: (1) the “three choices”
meeting in June 2013; (2) the details of the interactive process
to identify an accommodation for her disability between June
and September 2013; (3) the Sheriff’s Office’s “general animus”
against the ADA during the interactive process; and (4)
the Office’s broken promise to train Ford’s supervisors.
The first three categories underlie Ford’s claim that the visitation
clerk job was not a reasonable accommodation. To the
extent that Ford is just reiterating her objections to the grant
of summary judgment on that claim, we have already addressed
her objections. Ford also argues, however, that these
categories of evidence would have provided the jury context
32 No. 18-3217
or background for her disability harassment and scheduling
accommodation claims that did go to trial.
The Sheriff’s Office replies that Ford waived this argument
when she herself moved in limine to prohibit the Office from
“entering evidence relating to claims … on which the Court
granted summary judgment.” But the court’s order on the
motions in limine was “not a final ruling regarding the admissibility
of the evidence at issue” and, by its own terms, left
parties free to “request a sidebar conference during the appropriate
point in the trial.” Ford did not waive the issue; she did
raise her objections at trial.
Ford has not shown an abuse of discretion, however. The
district court evenhandedly enforced a rule that only conduct
after October 2013, when Ford began working with Ladd and
Watts in the Visitation Office, was relevant to the harassment
claim at trial. That was a reasonable way to keep the trial focused
on the disputes the jury would actually need to decide.
We doubt that evidence from before the alleged disability harassment
began could fairly sway the outcome of a hostile
work environment claim. In addition, Ford herself took advantage
of the district court’s time limit. Before trial, she objected
to exhibits concerning her disciplinary history and fitness
for duty from outside this time period, and the court sustained
those objections. Ford referred at trial to the “relevant
time period” and asked for evidence of earlier events to be
excluded. The first three categories of evidence that Ford argues
should have been admitted reflect the application of this
neutral time limit to her, and we find no abuse of discretion.12
12 We do not find persuasive Ford’s alternative argument that the
Sheriff’s Office opened the door to such evidence. The district judge still
No. 18-3217 33
Ford’s fourth category fares no better for a more basic reason.
Ford states that the district court excluded evidence that
the Sheriff’s Office “failed to abide by its own agreement to
provide ‘training to [Ford’s] supervisors regarding [Ford’s]
condition.’” But the district court admitted the evidence on this
subject. During Ford’s direct examination of Lieutenant Walterman,
the district court initially paused this line of questioning,
but later allowed it to go forward—over the objection of
the Sheriff’s Office. Another of Ford’s supervisors also testified
that he lacked much training on the ADA.
This case illustrates the challenges of managing a trial after
a partial grant of summary judgment. In a typical example
from employment discrimination law, a trial on a retaliation
claim might follow a grant of summary judgment on a distinct
claim for discrimination based on an earlier event. The court
must allow jurors to learn enough about the alleged discrimination
so that they can understand the retaliation claim. At the
same time, the court must keep the jurors focused on the claim
actually before them, avoiding a full trial-within-a-trial on the
underlying discrimination claim. For this reason, we allow
district judges to exclude extraneous evidence relevant only
to the discrimination claim. See, e.g., Abuelyaman v. Illinois
State Univ., 667 F.3d 800, 810 n.5 (7th Cir. 2011). More generally,
we afford trial judges “wide latitude” in making these
had a duty to keep out irrelevant evidence, notwithstanding passing references
to other accommodations Ford was receiving. See Houlihan v. City
of Chicago, 871 F.3d 540, 553 (7th Cir. 2017) (“the Rules of Evidence do not
simply evaporate when one party opens the door on an issue”). Even
where one party has “opened the door” to evidence that would otherwise
stay out, whether and to what degree to allow rebuttal are matters committed
to the trial judge’s discretion, which may consider the need to keep
the trial focused on relevant evidence and issues.
34 No. 18-3217
sorts of relevance determinations. Hasham v. California State
Bd. of Equalization, 200 F.3d 1035, 1050 (7th Cir. 2000). The district
court acted well within that discretion here.
2. Jury Instruction No. 20
Ford’s final argument relates to Jury Instruction 20, which
stated in full: “The ADA does not entitle a disabled employee
to the accommodation of her choice. Rather, the law entitles
her to a reasonable accommodation in view of her disability
and her employer’s needs.” Ford does not contend that this
instruction provided an inaccurate statement of law, nor
could she. See Rehling v. City of Chicago, 207 F.3d 1009, 1014
(7th Cir. 2000); see also Seventh Circuit Pattern Civil Jury Instructions
4.07(a) (2017 rev.). Ford instead argues that the
presence of Jury Instruction 20 implied that she was given a
choice among different accommodations, when in fact the
Sheriff’s Office denied her request for a schedule accommodation,
full stop.
Ford argues, in other words, that Jury Instruction 20 was
extraneous and therefore prejudicial. It is true that “a jury
should not be instructed on a defense for which there is so
little evidentiary support that no rational jury could accept the
defense.” Eastern Trading Co. v. Refco, Inc., 229 F.3d 617, 621
(7th Cir. 2000). When a losing party complains of such surplusage
in the jury instructions, “reversal requires a showing
that the jury probably was confused.” Id. at 622. We have said
that “[t]he requirement of prejudice is critical” in such cases
because we must afford district judges discretion to submit
even marginal issues to the jury. Burzlaff v. Thoroughbred Motorsports,
Inc., 758 F.3d 841, 849 (7th Cir. 2014).
No. 18-3217 35
Ford cannot show prejudice here. Her concerns bear on
the unreasonable hardship prong, under which the Sheriff’s
Office could refuse to provide an otherwise reasonable accommodation.
The jury’s special verdict found that Ford had
failed to show the schedule change was a reasonable accommodation
in the first place. Testimony that the rotating schedule
was actually more predictable and effective cross-examination
of Ford’s doctor provided evidence supporting the
jury’s verdict. The jury thus did not reach the undue hardship
issue, so we are confident that Instruction 20’s correct statement
of the law did not unfairly affect the outcome of the trial.

Outcome: Conclusion
The district court properly granted partial summary judgment
as to some of plaintiff’s claims and then exercised its discretion
fairly to manage the trial on the remaining claims. The
judgment of the district court is
AFFIRMED.

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