In the
United States Court of Appeals
For the Seventh Circuit

Nos. 00-1977, 00-2493

Antonio S. Contreras,

Plaintiff-Appellant,

v.

Suncast Corporation, an Illinois Corporation,
Thomas Tisbo, John Baunach, Randall Guillotte,
and Michael Hamilton,

Defendants-Appellees.



Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 96 C 3439--Ann Claire Williams
and Suzanne B. Conlon, Judges.


Argued November 30, 2000--Decided January 3, 2001



  Before Flaum, Chief Judge, and Easterbrook and Rovner,
Circuit Judges.

  Flaum, Chief Judge. Antonio Contreras was
injured in a forklift accident while employed by
Suncast. After repeated violations of Suncast’s
safety protocols, work attendance policies, and
acts of insubordination, Contreras was dismissed
by the company. Contreras thereafter filed suit
alleging a multitude of claims, primarily
revolving around the assertion that Suncast had
discriminated against him in violation of both
Title VII of the Civil Rights Act of 1964, and
the Americans with Disabilities Act ("ADA"). The
district court granted Suncast summary judgment
on all of Contreras’s claims, denied Contreras’s
cross-motion for partial summary judgment and
dismissed Contreras’s remaining state law claims.
The court also awarded Suncast a partial bill of
costs. Contreras now appeals both the summary
judgment determinations as well as the award of
costs. For the reasons stated herein, we affirm.

I.   BACKGROUND

  Antonio Contreras, born in Monterrey, Mexico, is
a naturalized citizen of the United States.
Beginning in November of 1994, Contreras was
employed as a forklift operator for Suncast
Corporation ("Suncast"), a manufacturer and
distributor of lawn and garden equipment. During
Contreras’s employment stint, Thomas Tisbo was
Suncast’s President, Michael Hamilton was the
Vice President, John Baunach was the Manager of
Human Resources, and Randall Guillotte was a
Production Flow Supervisor responsible for
supervising forklift drivers.

  Contreras’s physical problems began on June 21,
1995, when he was injured on the job in a
forklift accident. Contreras filed a workers
compensation claim, and as a result of his
injuries, was instructed by his physician not to
drive a forklift for more than four hours a day
and to spend the remainder of the day on light
work duty. Suncast complied with these
restrictions though Contreras argues that
Suncast’s accommodations were inadequate. On
December 18, 1995, Contreras was again injured
when he stood up quickly and struck his head on
a metal rack after hearing Guillotte call out his
name. Contreras’s work limitations became
permanent on January 12, 1996.

  Contreras’s disciplinary problems began on July
20, 1995, when he was given a verbal, followed by
a written warning for violating forklift safety
procedures. On November 7, 1995, Guillotte
observed Contreras and two co-workers violating
forklift safety rules. Guillotte met with the
three as a group and gave each of them a copy of
the safety rules to review. As Guillotte walked
away from the meeting he heard Contreras say
"chingado," from which he understood Contreras to
be calling him a "motherfucker." Contreras
maintains that what he actually uttered was
"vamanos a la chingada," an idiom for "let’s get
the hell out of here." Regardless, Guillotte gave
Contreras a verbal warning for his
insubordination. Contreras also repeatedly
violated Suncast’s attendance policies. Between
January 3, 1996, and February 8, 1996, Contreras
violated attendance policies seven different
times and was caught falsifying a Suncast time
card in an attempt to cover up one of these
violations. When Contreras was caught falsifying
the time card, he was suspended. At that point,
he filed an EEOC charge claiming that Suncast was
discriminating against him on the basis of
national origin. On February 12, 1996, Contreras
violated the company attendance policy for an
eighth time in a little over one month. Having
been progressively disciplined for these multiple
offenses, Suncast discharged Contreras on
February 13, 1996. The following day, at the
behest of Contreras’s union representative,
Suncast offered to reinstate Contreras. Contreras
informed the company that he was not interested
in returning to work, but that he wished to
pursue legal action instead.

  Contreras brought suit in the district court
raising a litany of claims against Suncast.
Specifically, Contreras alleged (1) that he was
wrongfully terminated and not given a light work
duty in violation of Title VII of the Civil
Rights Act of 1964; (2) that Suncast retaliated
against him by discharging him, after he filed an
EEOC charge, in violation of Title VII; (3) that
he was not reasonably accommodated after his
injury and discriminated against for requesting
accommodations, in violation of the ADA; (4) that
Guillotte assaulted him by intentionally causing
him to bang his head on the metal rack; (5) that
Suncast was negligent in supervising Guillotte
and directing Guillotte to stalk and assault
Contreras; (6) that Suncast wrongfully discharged
him after he filed a workers compensation claim.
On March 15, 2000, the district court granted
summary judgment to Suncast on all federal
claims, and dismissed the state law claims
without prejudice. Those state law claims have
been refiled in the district court under 28
U.S.C. sec. 1332. On May 22, 2000, after this
case had been reassigned, the district court
partially granted Suncast’s Bill of Costs.
Contreras appealed the grant of summary judgment
along with the judgment granting the Bill of
Costs. These two appeals have been consolidated
and we now address them.

II. DISCUSSION
A. Contreras’s Title VII Claims

  Contreras contends that the district court erred
in granting summary judgment to Suncast on his
national origin discrimination claims under Title
VII. We review a district court’s grant of
summary judgment de novo, viewing the facts and
drawing all reasonable inferences in the light
most favorable to the nonmoving party. See
Stockett v. Muncie Indiana Transit Sys., 221 F.3d
997, 1000 (7th Cir. 2000). Summary judgment is
appropriate only where "there is no genuine issue
as to any material fact and . . . the moving
party is entitled to a judgment as a matter of
law." Fed.R.Civ.P. 56(c); see James v. Sheahan,
137 F.3d 1003, 1006 (7th Cir. 1998).

  Title VII of the Civil Rights Act of 1964 makes
it unlawful for an employer "to fail or refuse to
hire or to discharge any individual, or otherwise
to discriminate against any individual with
respect to his compensation, terms, conditions,
or privileges of employment, because of such
individual’s race, color, religion, sex, or
national origin." 42 U.S.C. sec. 2000(e)-2(a)(1).
A plaintiff may meet his burden of proof under
Title VII by offering either direct proof of
discriminatory intent or by proving disparate
treatment through the indirect, burden-shifting
method outlined by the Supreme Court in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). See
Stockett, 221 F.3d at 1000-01; Plair v. E.J.
Brach & Sons, Inc., 105 F.3d 343, 347 (7th Cir.
1997). In this case, Contreras offers no direct
proof of discrimination but attempts to meet his
burden through showing discriminatory treatment
under the McDonnell Douglas test.

  Under the McDonnell Douglas burden shifting
method, the plaintiff must raise an inference of
discrimination by offering sufficient evidence to
make out the prima facie case. Pafford v. Herman,
148 F.3d 658, 665 (7th Cir. 1998). To establish
a prima facie case under McDonnell Douglas, the
plaintiff must demonstrate that (1) he belongs to
a protected class; (2) he performed his job
satisfactorily; (3) he suffered an adverse
employment action; and (4) his employer treated
similarly situated employees outside of his
protected class more favorably. See Stockett, 221
F.3d at 1000-01; Plair, 105 F.3d at 347. If a
plaintiff is able to make the prima facie
showing, there is a presumption that the
plaintiff was discriminated against, and the
employer must come forward with a legitimate non-
discriminatory reason for the employment action.
See McDonnell Douglas, 411 U.S. at 802. At this
stage, the employer need not prove that it was
actually motivated by the proffered reason.
Rather, an employer "need only produce admissible
evidence which would allow the trier of fact
rationally to conclude that the employment
decision had not been motivated by discriminatory
animus." Texas Dep’t of Community Affairs v.
Burdine, 450 U.S. 248, 257 (1981). Once the
defendant has met this burden of production, the
plaintiff must prove by a preponderance of the
evidence that the reason offered by the defendant
is merely a pretext for discrimination. Id. at
253. While the McDonnell Douglas approach is
often called a "burden shifting" method of proof,
"[t]he ultimate burden of persuading the trier of
fact that the defendant intentionally
discriminated against the plaintiff remains at
all times with the plaintiff." Id.

  The majority of Contreras’s argument on his
Title VII claims is devoted to showing that
similarly situated individuals outside the
protected class were treated more favorably than
Contreras. In fact, Contreras goes so far as to
frame the issues for review as if the "similarly
situated" prong of McDonnell Douglas is the only
burden keeping him from establishing the prima
facie case, and thus the dispositive issue in
determining whether the district court decision
should be reversed. We are unpersuaded. Perhaps
Contreras’s strategy is a recognition that he
cannot establish the prima facie case. The
district court granted Suncast summary judgment,
finding that Contreras could not meet both the
second and fourth prongs of the McDonnell Douglas
prima facie case; namely that Contreras could not
prove that he was meeting Suncast’s legitimate
expectations and that he could not show that
similarly situated non-Hispanic employees
received more favorable treatment. Contreras’s
failure in either of these regards is sufficient
to uphold the district court’s grant of summary
judgment. Thus we proceed by analyzing first
whether Contreras was meeting the legitimate
expectations of Suncast.

  Contreras was employed by Suncast as a forklift
operator. On November 14, 1994, Contreras
acknowledged receiving a copy of Suncast’s Work
Rules and General Plant Safety Rules. Those Rules
establish two groups of violations. Group A
violations, which the company believes to be so
serious that a first offense may call for
immediate discharge, include falsifying
information on company records (Rule A-4),
insubordination (Rule A-7), and taking extended
rest periods (Rule A-9). Group B violations are
considered less serious, and call for a tiered
response, beginning with a verbal warning,
followed by a written reprimand, suspension and
finally discharge. Relevant to our inquiry, Group
B violations include failing to obey safety rules
(Rule B-7), and repeated unexcused absences (Rule
B-11). Though we recognize that coming to work,
not falsifying documents, and not being
insubordinate, are usually implicit expectations
that an employer has for his or her employees, by
putting these requirements in Suncast’s Work
Rules, there can be no claim that these were not
legitimate expectations of the company. See Robin
v. Espo Eng’g Corp., 200 F.3d 1081, 1090 (7th
Cir. 2000), ("At the outset, this Court’s inquiry
into the issue of legitimate expectations is more
aptly characterized as simply bona fide
expectations, for it is no business of a court in
a discrimination case to decide whether an
employer demands ’too much’ of his workers. In
other words, so long as the employer’s employment
expectations are in good faith, without fraud or
deceit, we only determine if the employee met
them.") (internal citations omitted). The
uncontradicted evidence is that Contreras did not
meet those bona fide expectations. Contreras was
repeatedly cited for operating his forklift in an
unsafe manner. Furthermore, within less than six
weeks, Contreras violated the company’s work
attendance guidelines on no less than eight
occasions. On one such occasion, Contreras
doctored company records in an attempt to conceal
his infraction. Finally, the "chingado incident,"
as Contreras refers to it, shows a level of
insubordination that in itself was worthy of
dismissal./1 All these facts show that Contreras
was not meeting the legitimate expectations of
Suncast, and Contreras has not presented evidence
to demonstrate the existence of a genuine issue
of material fact on the subject./2 Had he done
so he could have moved on to the next stage of
analysis. Coco v. Elmwood Care, Inc., 128 F.3d
1177, 1179 (7th Cir. 1997)./3 However, as we
have stated, should a plaintiff fail to establish
that he was meeting the employer’s bona fide
expectations, he is not entitled to present his
case to the jury and we need not proceed to the
remaining steps of the McDonnell Douglas
framework. See Espo Eng’g Corp., 200 F.3d at
1090; see also Coco, 128 F.3d at 1179 ("If the
plaintiff has other evidence of discrimination,
well and good; but if he has nothing else, and is
therefore totally reliant on the McDonnell
Douglas formula, he is out of luck if he can’t
show that he was meeting his employer’s
legitimate expectations."). Given that Contreras
cannot make out the prima facie case under the
approach, we find no need to examine whether
similarly situated individuals not of his
protected class were treated differently. Because
Contreras had to prove that he was meeting the
legitimate expectations of Suncast in order to
make the prima facie case for both his Title VII
discriminatory discharge and discriminatory job
assignment claims, and he has failed to do so, we
affirm the district court’s rulings in both of
these matters.

B.   Contreras’s ADA Claims

  Contreras claims that the district court erred
in granting summary judgment to Suncast on his
failure to reasonably accommodate claim. Once
again, the bulk of Contreras’s argument is
devoted to a discussion of similarly situated
individuals. Specifically, his brief suggests
that "[t]he fact that only Contreras of all these
people was fired allows the inference that his
discharge was related to his requests for
accommodations."/4

  The ADA prohibits discrimination by covered
entities, including private employers, against
qualified individuals with a disability. Sutton
v. United Air Lines, Inc., 527 U.S. 471, 477
(1999). Specifically, the ADA provides that no
covered employer "shall discriminate against a
qualified individual with a disability because of
the disability of such individual in regard to
job application procedures, the hiring,
advancement, or discharge of employees, employee
compensation, job training, and other terms,
conditions, and privileges of employment." 42
U.S.C. sec. 12112(a). Section 12112(b) of the Act
defines the different ways in which
discrimination under section (a) might occur.
Relevant to our inquiry, the ADA states that "not
making reasonable accommodations to the known
physical or mental limitations of an otherwise
qualified individual with a disability who is an
applicant or an employee" is considered
discrimination, "unless such covered entity can
demonstrate that the accommodation would impose
an undue hardship on the operation of the
business of such covered entity." 42 U.S.C. sec.
12112(b)(5)(A). Thus, in order for a plaintiff to
recover under the ADA for an employer’s failure
to reasonably accommodate, that plaintiff must
first show: (1) that he was or is disabled as
defined by the Act, (2) that his employer was
aware of the disability, and (3) that he was
qualified for the position in question. Best v.
Shell Oil Co., 107 F.3d 544, 547-48 (7th Cir.
1997). To qualify for the position in question,
the plaintiff must show that he is physically
capable of performing the essential functions of
the position, with or without an accommodation,
and that he meets the legitimate educational,
training, experience, and other requirements set
by the employer for the position. See Dalton v.
Subaru-Isuzu Automotive, Inc., 141 F.3d 667, 676
(7th Cir. 1998).

  Under the ADA, a disability is defined as: "(A)
a physical or mental impairment that
substantially limits one or more of the major
life activities of such individual; (B) a record
of such an impairment; or (C) being regarded as
having such an impairment." 42 U.S.C. sec.
12102(2). Contreras contends that because of his
injuries, he was substantially limited in the
major life activities of working as well as
reproduction/engaging in sexual relations. We
examine each of these claims in turn.

  As it has been defined, "substantially limits"
means that the person is either unable to perform
a major life function, or is significantly
restricted in the duration, manner, or condition
under which the individual can perform a
particular major life activity, as compared to
the average person in the general population. See
29 C.F.R. sec. 1630.2(j). When we discuss the
major life activity of working, "substantially
limits" means the individual is significantly
restricted in the ability to perform a class of
jobs or a broad range of jobs in various classes.
Webb v. Choate Mental Health and Dev. Ctr., 230
F.3d 991, 998 (7th Cir. 2000). "Thus an
individual is not substantially limited in
working just because he or she is unable to
perform a particular job for one employer, or
because he or she is unable to perform a
specialized job or profession requiring
extraordinary skill, prowess or talent;" instead,
"the impairment must substantially limit
employment generally." 29 C.F.R. sec. 1630.2(j),
App. (1999); see Webb, 230 F.3d at 998. As such,
Contreras has the burden of presenting evidence
to demonstrate that his impairment limited his
ability to perform an entire class of jobs. See
Skorup v. Modern Door Corp., 153 F.3d 512, 515
(7th Cir. 1998).

  In support of his claim that he is
substantially limited in the major life activity
of working, Contreras advances that he is unable
to lift in excess of 45 pounds for a long period
of time, unable to engage in strenuous work, and
unable to drive a forklift for more than four
hours a day. Taking Contreras’s assertions as
fact, we fail to see how such inabilities
constitute a significant restriction on one’s
capacity to work, as the term is understood
within the ADA. Contreras has not presented
evidence that even hints at the notion that he is
precluded from a broad class of jobs. Though this
precise claim has not found its way into our
published case law, we note that other circuits
faced with similar sets of facts have found those
limitations do not qualify as a substantial
limitation on working (and thus a disability
under the ADA). See e.g. Williams v. Channel
Master Satellite Sys., Inc., 101 F.3d 346, 349
(4th Cir. 1996) (holding as a matter of law that
"twenty-five pound lifting limitation--
particularly when compared to an average person’s
abilities--does not constitute a significant
restriction on one’s ability to lift, work, or
perform any other major life activity"); Aucutt
v. Six Flags Over Mid-America, 85 F.3d 1311, 1319
(8th Cir. 1996) (holding plaintiff failed to show
he was substantially limited in major life
activities where "a 25-pound lifting restriction
was the only medical limitation placed upon
[plaintiff’s] activities"); Ray v. Glidden Co.,
85 F.3d 227, 228-29 (5th Cir. 1996) (holding that
inability to continuously lift containers
weighing on average 44-56 pounds "does not render
a person substantially limited in the major life
activities of lifting or working"); Wooten v.
Farmland Foods, 58 F.3d 382, 384, 386 (8th Cir.
1995) (plaintiff not substantially limited in
major life activity of working where plaintiff
was restricted to light duty with no working in
cold environment and no lifting items weighing
more than 20 pounds)./5 Nor have we ever
suggested that forklift operation, the specific
job Contreras claims he cannot perform for more
than four hours, is broad enough to constitute a
class of jobs. It was Contreras’s burden on
summary judgment to show that he could come up
with evidence to show he could meet his ultimate
burden of showing an ADA recognized disability.
See DePaoli, 140 F.3d at 672. He has not done so.
Thus, the district court was correct to reject
Contreras’s claim that he is substantially
limited in the major life activity of working.

  Contreras also suggests that he is disabled in
the major life activities of sexual reproduction
and engaging in sexual relations. These claims
are based completely on Contreras’s unsupported
assertion that while he was able to have
intercourse 20 times a month prior to his
accident, at present he can only have sex two
times a month. That sexual reproduction is a
major life activity was acknowledged by the
Supreme Court in Bragdon v. Abbott, 524 U.S. 624,
639 (1998) ("In the absence of any reason to
reach a contrary conclusion, we agree with the
Court of Appeals’ determination that reproduction
is a major life activity for the purposes of the
ADA"). Furthermore, we recognize it may be argued
that the Supreme Court may have implied that
engaging in sexual relations is a major life
activity. See Bragdon, 524 U.S. at 638
("[r]eproduction and the sexual dynamics
surrounding it are central to the life process
itself.")./6 However, we find Contreras’s
attempts to liken his situation to that of
Bragdon unconvincing. In Bragdon, the Court
considered whether HIV was a physical impairment
within the meaning of the ADA. In that case,
plaintiff brought an action--under the portion of
the ADA that dealt with equal access to public
accommodations--against a dentist who had refused
to treat her in his office. In reaching the
conclusion that an HIV infected woman was
substantially limited in her ability to
reproduce, the Supreme Court focused on the fact
that an infected woman who attempts to reproduce
imposed a significant risk of transmitting the
disease to any male she has intercourse with as
well as to her child during gestation and
childbirth. Bragdon, 524 U.S. at 639.

  It is apparent that our present situation is
readily distinguishable from Bragdon. The Supreme
Court’s ruling in that matter does not stand for
the proposition that a change in the frequency
with which an individual can engage in
intercourse, as a result of a bad back,
constitutes an impairment which substantially
limits a major life activity. Rather, the Court
based its decision on the undeniable impact that
HIV can have on the feasibility of reproduction.
Contreras has not shown any significant impact on
his ability to reproduce. He has not produced
even a scintilla of evidence that he is
significantly restricted as to the condition,
manner or duration under which he can reproduce
as compared to the average person in the general
population. See 29 C.F.R. sec. 1630,2(j)(1). In
addition, even if we assume that engaging in
sexual relations is a major life activity,
Contreras has not substantiated his claim of
sexual difficulties with any documentation or
testimony beyond a general assertion that the
frequency with which he has relations has
decreased. Such a bald declaration, without
anything more, cannot create a genuine issue of
material fact as to Contreras being disabled that
would preclude summary judgment. Therefore, we
find that it was appropriate to grant Suncast
summary judgment on these ADA claims.

C. Contreras’s Claims of Retaliatory Firing Under
Title VII and the ADA

  Contreras argues that his termination by Suncast
constitutes an act of retaliation, prohibited by
both Title VII and the ADA. Specifically,
Contreras puts forth that the only reason he was
terminated was because Suncast wished to punish
him for requesting accommodations and filing an
EEOC complaint. Title VII prohibits employers
from discriminating against an employee "because
he has opposed any practice made an unlawful
employment practice by this subchapter, or
because he has made a charge, testified,
assisted, or participated in any manner in an
investigation, proceeding, or hearing under this
subchapter." 42 U.S.C. sec. 2000e-3(a).
Similarly, the ADA provides that "[n]o person
shall discriminate against any individual because
such individual has opposed any act or practice
made unlawful by this chapter or because such
individual made a charge, testified, assisted, or
participated in any manner in an investigation,
proceeding, or hearing under this chapter." 42
U.S.C. sec. 12203.

  In order to prevail on a claim of retaliation,
a plaintiff must either offer direct evidence of
retaliation, or proceed under a burden-shifting
method. See Smart v. Ball State Univ., 89 F.3d
437, 440 (7th Cir. 1996). Since Contreras has
offered no direct evidence of retaliation, he
must make the prima facie case for discriminatory
retaliation. Under both Title VII and the ADA,
the prima facie case requires that Contreras
prove (1) that he engaged in statutorily
protected activity; (2) that he suffered an
adverse employment action; and (3) that there is
a causal connection between the two events. Id.
Once the prima facie case is established, the
burden shifts to Suncast to articulate a
legitimate and nondiscriminatory reason for its
actions which Contreras must show to be a pretext
for unlawful retaliation. Rennie v. Dalton, 3
F.3d 1100, 1108-09 (7th Cir. 1993).
  Contreras claims that he was terminated on
February 13, 1996 in retaliation for filing his
EEOC charge on January 18, 1996. In that charge,
Contreras claimed that defendants harassed him on
the basis of his national origin and denied him
reasonable accommodations. Yet, Contreras has
presented nothing more than temporal proximity in
support of his causal connection argument.
"Timing may be an important clue to causation,
but does not eliminate the need to show
causation." Bermudez v. TRC Holdings, Inc., 138
F.3d 1176, 1179 (7th Cir. 1998) (internal
citation omitted). We have held that absent other
evidence of retaliation, a temporal relation is
insufficient evidence to survive summary
judgment. Gleason v. Mesirow Financial, Inc., 118
F.3d 1134, 1136 (7th Cir. 1997). The evidence
shows that Contreras was terminated after a
series of unexcused absences and acts of
insubordination. He has done nothing to establish
that his filing of an EEOC charge or request for
accommodations even factored into Suncast’s
decision to dismiss him. In fact, the pattern of
events suggests that the complaint and request
for accommodations were non-factors in his
dismissal. Therefore, we agree with the district
court that Contreras has failed to make the prima
facie case for retaliation for both Title VII and
ADA purposes.

D.   Contreras’s Motion for Summary Judgment

  Contreras filed a cross-motion for partial
summary judgment in this matter, claiming that
Suncast’s accommodation policy is a per se
violation of the ADA. The district court
determined that because Contreras was not a
qualified individual with a disability, he did
not have Article III standing to challenge
Suncast’s accommodations policy as facially
invalid. Contreras suggests that the district
court’s opinion is inconsistent, in that it found
Contreras to be disabled while at the same time
denied him standing under the ADA. First, as we
stated above, we do not read the district court’s
opinion to have determined the disability issue
conclusively. The court did not make the
requisite analysis that would be necessary in
order to find one disabled under the ADA, but
rather assumed "for the purposes of [the summary
judgment] motion . . . that Contreras is disabled
under the ADA." Secondly, as the court below
noted, even presuming that Contreras is disabled,
that is not the only hurdle he must pass in order
to have standing to challenge Suncast’s
accommodations policy. The ADA, by its language,
protects qualified individuals with disabilities
from discrimination in employment. 42 U.S.C. sec.
12112(a). A "qualified individual" with a
disability is one who with or without reasonable
accommodation, is able to perform the essential
functions of his job. The district court
determined that Contreras had failed to establish
that he was a qualified individual with a
disability under the ADA, in that he did not
present evidence that he was both disabled and
able to perform the essential functions of his
forklift driver job with reasonable
accommodations. Thus, the court believed that
Contreras could not have established injury in
fact as is required for Article III standing. See
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560
(1992).

  We agree with the district court’s
interpretation that Contreras does not have
standing to challenge Suncast’s accommodation
policy, in that he is not a qualified person with
a disability, the type of individual protected by
the relevant portions of the ADA. See e.g.,
Stuckey v. City of Naperville, No. 97 C 7037,
1998 WL 173298 at *4 (N.D. Ill. April 7, 1998)
("Stuckey focuses his attention on a claim that
the City’s disability policy is a ’per se
violation of the ADA’ and . . . inexplicably
overlooks the fact that he is without standing to
contest the City’s policy if he is not a
qualified individual with a disability under the
ADA. In other words, the potential illegality of
the City’s policy does not automatically allow
Stuckey to proceed with his claim under the
ADA."). Contreras’s impairment did not bring him
within the gamut of those who could challenge the
legality of Suncast’s accommodations policy, and
the fact that he is no longer employed by the
company means that there is no risk that he will
ever suffer an injury as a result of the policy.
Therefore, we affirm the district court’s
decision finding Contreras lacked standing to
challenge Suncast’s accommodations policy.

E.  Contreras’s Remaining Claims
  Finally, we note three additional arguments
raised by Contreras. Though Contreras devoted the
majority of his oral argument to these claims, we
find them unconvincing and therefore will dispose
of them without much elaboration. Contreras’s
first of these contentions is that the district
court abused its discretion by allowing Suncast
to resubmit four affidavits to cure the
procedural defect that they had been originally
notarized by Baunach, a party to the lawsuit.
Contreras has presented no evidence or case law
to support the idea that the district court’s act
of allowing Suncast to replace the invalid
affidavits with a disinterested notary’s
signature constitutes "a decision that no
reasonable person could agree with--a ruling that
is fundamentally wrong." Roy v. Austin Co., 194
F.3d 840, 843 (7th Cir. 1999). We find no error
in the district court’s actions, and certainly
none requiring reversal in this matter.

  Secondly, Contreras finds error in the district
court’s decision to dismiss his remaining state
law claims without prejudice after the court
granted Suncast summary judgment on all federal
claims. According to the supplemental
jurisdiction statute, a district court "may
decline to exercise supplemental jurisdiction"
over pendent state law claims if the court has
dismissed all claims over which it has original
jurisdiction. 28 U.S.C. sec. 1367(c)(3). "A
decision to relinquish pendent jurisdiction
before the federal claims have been tried is, as
we have said, the norm, not the exception, and
such a decision will be reversed only in
extraordinary circumstances." Disher v. Info.
Resources, Inc., 873 F.2d 136, 140 (7th Cir.
1989). Here, given that Contreras has refiled
these state law claims in federal court, invoking
diversity jurisdiction, we fail to find any
extraordinary circumstances that would even
approach suggesting that the court, in dismissing
the claims, abused its discretion.

  Lastly, Contreras suggests this case was
improperly transferred to Judge Conlon (who
rendered the decision on costs), and that
therefore the award of costs should be nullified.
After summary judgment was granted, this case was
transferred from Judge Williams to Judge Conlon,
on account of Judge Williams’ elevation to this
Court. Pursuant to Local Rule 40.1(f), which
Contreras cites but inexplicably ignores, cases
on the calendar of a leaving judge shall be
reassigned under the direction of the Executive
Committee. On March 3, 2000, the Executive
Committee ordered as follows: "IT IS HEREBY
ORDERED that theClerk [sic] of the Court reassign
the above-captioned case by lot to the calendar
of an active judge of this court in accordance
with the Rules." Given the above-cited local rule
and the language of the reassignment order, we do
not understand how Contreras could claim that
this case was improperly transferred. The issue
of costs in this matter was decided by an
impartial Article III judge, and to the extent
that Contreras’s argument implies that the
district court circumvented local rules in this
regard, we categorically disagree.

III.   CONCLUSION

  For the foregoing reasons, we Affirm the decision
of the district court.



/1 Contreras argues on appeal that since summary
judgment requires that we draw all reasonable
inferences in favor of the nonmoving party, in
this instance Contreras, that we must accept as
true his version of the chingado/vamos a la
chingada episode. However, it is irrelevant for
our purposes which version is accurate. Either
way, Contreras’s words evince an attitude of
actual and perceived insubordination that
factored into his dismissal.

/2 In his brief, Contreras refers to this checkered
employment record as a "series of minor
disciplinary write-ups." We view that
characterization as extremely generous.

/3 Although the evidence is uncontradicted that
Contreras was not doing the job for which he had
been hired, if he could show that, even so, it
was his national origin that induced the
defendant’s adverse employment actions, he might
have had a case. For it is not a defense to a
discrimination case that the plaintiff should
have been fired, if he would not have been fired
had it not been for discriminatory animus.
McKennon v. Nashville Banner Publishing Co., 513
U.S. 352 (1995); Dranchak v. Akzo Nobel Inc., 88
F.3d 457, 461 (7th Cir. 1996). But that would be
a case in which the plaintiff had direct evidence
of discrimination and was not dependent on the
McDonnell Douglas burden shifting formula. If the
plaintiff has no direct evidence of
discrimination and is therefore confined to the
formula, he must prove that he was meeting (or at
least that there is a genuine issue of whether he
was meeting) his employer’s bona fide
expectations, before he can force the employer to
produce the reasons for why he was fired or
otherwise subjected to adverse action. He cannot
get anywhere in such a case merely by trying to
prove that he was fired for a reason unrelated to
his deficiencies. St. Mary’s Honor Ctr. v. Hicks,
509 U.S. 502, 519 (1993). For such evidence to
defeat summary judgment, the plaintiff must have
made out a prima facie case under McDonnell
Douglas. See Coco, 128 F.3d at 1179-80. Because
Contreras has failed to do this, his present
attempt to use comparisons to similarly situated
individuals in order to prove discrimination is
inappropriate.

/4 Even assuming arguendo that Contreras’s similarly
situated individuals were not fired from Suncast,
we are puzzled at how this fact relieves
Contreras from the burden of establishing an ADA
failure to reasonably accommodate claim. However,
we will read Contreras’s argument as a broad
challenge to the summary judgment decision
against him on the ADA claims, and address the
actual relevant issues.
/5 We note, however, that there is a line of Seventh
Circuit case law which could be read to suggest
an opposite result. While Contreras has chosen
not to rely on these cases, we believe it
important to identify these cases and explain why
they are inapplicable to these circumstances. In
DePaoli v. Abbott Lab., Inc., 140 F.3d 668 (7th
Cir. 1998), Best, and Cochrum v. Old Ben Coal
Co., 102 F.3d 908 (7th Cir. 1996), we found that
the plaintiffs had produced enough evidence to
survive summary judgment on the issue of whether
they were disabled under the ADA because of their
substantial limitations in the major life
activity of working. But what is significant
about these cases is the court’s emphasis on the
breadth of the restrictions placed on the
plaintiffs and their doctors’ recommendations
concerning how their respective injuries would
affect their ability to obtain other employment.
See DePaoli, 140 F.3d at 673 (evidence showed
that plaintiff’s injury precluded her from
virtually any job requiring repetitive movement
of the hand); Best, 107 F.3d at 548 (doctor
advised that plaintiff should "find another line
of work" due to his knee injury); Cochrum,102
F.3d at 911 (nature of plaintiff’s shoulder
injury and doctor’s broad restrictions indicated
that plaintiff could be disqualified from a broad
range of jobs). In contrast, Contreras’s
restrictions are quite specific and he has
offered no evidence--other than the restrictions
themselves--to show that his back injury limits
his ability to engage in a class of jobs.

/6 The district court, for purposes of the summary
judgment motion, assumed that Contreras was
disabled within the terms of the ADA because of
his proposed sexual intercourse limitations, and
found his claim lacking for other reasons. We
note that notwithstanding the Ninth Circuit’s
decision in McAlindin v. San Diego, 192 F.3d
1226, 1234 (9th Cir. 1999), this Court has not
established a rule that sexual relations are a
major life activity for ADA purposes. In this
instance, resolution of that issue is not
required in order to agree that summary judgment
for Suncast was appropriate. Therefore, we will
not address the issue of whether sexual relations
is a major life activity and instead we will
proceed to examine whether Contreras has met his
other burdens in establishing a claim of failure
to reasonably accommodate under the ADA.
