Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:05-cv-1171-LJM-WTL-Larry J. McKinney, Chief Judge.
The opinion of the court was delivered by: Rovner, Circuit Judge.
Before CUDAHY, RIPPLE, and ROVNER, Circuit Judges.
Gerald Lloyd sued Swifty Transportation, where he worked as a truck driver for nearly seven years. He principally claimed that Swifty violated the Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213, by passing him over for promotion, disciplining him, paying him less than non-disabled drivers, and eventually forcing him to quit his job. Lloyd also claimed that Swifty violated the Family and Medical Leave Act, 29 U.S.C. §§ 2601-2654, by retaliating against him for taking medical leave. He further claimed that the company breached an agreement to interview him for future promotions. The district court granted sum-mary judgment for Swifty on all claims. We affirm.
As a result of a motorcycle accident in August 1997, Lloyd's left leg was amputated below the knee. Six months later he started using a prosthetic leg. He generally can wear the prosthesis for up to 12 hours a day but removes it to sleep. Lloyd's prosthesis is largely unnoticeable under his pants, and he uses it so effectively that people sometimes do not realize he is an amputee. He can walk about a mile on a good day but cannot run or jog. He can also shop for himself, though he sometimes uses a motorized cart, and can drive while wearing his prosthesis. If he has to move quickly, however, he must hop, which creates a risk that he will fall and injure himself.
The prosthesis causes some difficulties for Lloyd. His leg swells at night while he is sleeping, so he must "put himself together" each morning, which involves using crutches or hopping on his right leg, cleaning the liner for his prosthesis, and preparing his skin. In total this adds about 20 minutes to his morning routine. Moreover, the prosthesis does not fit perfectly, so he has to change the lining several times a day. The prosthesis has caused a skin-stretching condition, which creates pain, soreness, and a burning sensation. Lloyd had one surgery to tighten the skin, but the condition persists. Lloyd also gets bacterial infections, known as cellulitis, in his left knee that if not properly treated keep him from walking for three or four days.
Lloyd had been a truck driver before his motorcycle accident. He applied for and received a limb waiver from the Indiana Department of Transportation in May 1998 so that he could go back to work. Swifty hired him as a night-shift driver in June 1998 knowing that he uses a prosthetic leg. Swifty hauls gasoline to stations in a five-state area and employed no more than forty-two people in 2003 and 2004. Swifty has a fleet of twelve gasoline tanker trucks, each with a day-time lead driver and two night-shift drivers. Lead drivers have a few more responsibilities than other drivers, such as dealing with scheduling issues and mechanical problems on the trucks, and are generally paid more, but they are not supervisors.
In October 2001 a lead-driver position became available. Max Eldridge had been a lead driver but told Swifty that he would give up that job and transfer to a vacant night-shift position if Swifty rehired Mike Blackford to replace him. Blackford had previously worked for Swifty and left on good terms. Lloyd told his lead driver and his supervisor that he was interested in the open lead-driver position, but Swifty hired Blackford without interviewing Lloyd. Lloyd filed a charge of discrimination with the Equal Employment Opportunity Commission in June 2002, claiming that because of his disability he was denied the lead-driver position despite having more seniority than Blackford. Four months later Lloyd and Swifty entered into a Negotiated Settlement Agreement binding Lloyd to forego suing in exchange for Swifty's promise to notify him about future vacancies for lead drivers and interview him if he applied. The EEOC issued a right-to-sue letter on October 30, 2002.
A lead-driver position next opened up in June 2003, and Lloyd applied. The president of Swifty and supervisors Pat Adamson and Lesli Stevens interviewed Lloyd and three other drivers and ultimately selected Marvin Smith. Based on the criteria that lead drivers must solve daily mechanical problems and handle scheduling issues, the hiring team thought that Smith was best qualified because he had more knowledge of the mechanics and maintenance of trucks, had a positive attitude, and related better to the other truck drivers. In contrast, other drivers had complained about Lloyd's attitude and inability to cooperate with them. Smith became lead driver of Lloyd's assigned truck and made changes that Lloyd did not like, in particular switching the fuel hoses from one side of the truck to the other and altering Lloyd's hours. Lloyd filed a second EEOC charge in August 2003, claiming that Swifty selected Smith over him because of his disability, and that Smith's changes were made in retaliation for filing his first EEOC charge. The EEOC issued a right-to-sue letter on September 25, 2003.
Twice more Swifty passed over Lloyd for a lead-driver position. In January 2004, after a lead driver told Swifty he would be moving soon and wanted to work night shifts until then, Swifty promoted Greg McNeely to the position without interviewing Lloyd, although Lloyd had asked Adamson for an interview. At summary judgment Adamson and Stevens explained that they chose McNeely because he had ten years of experience as a night-shift driver at Swifty and would not need to be trained. They said they did not consider Lloyd because he continued to have a negative demeanor and did not get along with others. Ten months later, Swifty replaced Paul Combes, the lead driver of the only truck assigned to the Muncie, Indiana, area. Combes had "cross dumped" kerosene into a gasoline tank, a serious offense for which Swifty demoted him to night-shift driver. Swifty replaced him with Tony Cave, a night-shift driver on that truck who was highly recommended by his previous employer and had been a good employee at Swifty. Swifty did not consider this lead-driver position to be vacant and thus did not inform other drivers about the opening.
Throughout this time Lloyd also was subjected to a few incidents that he characterizes as harassment. In July 2004 Lloyd was in his own car talking on his cell phone when Marvin Smith confronted him and demanded to know if he was talking with one of his "bitches" and "one of his fucking whores." Lloyd hit Smith with his door while trying to close it, and Smith told him he would not have a job tomorrow. When Lloyd complained to his supervisors, Swifty's president told him to "just go to work." In October of that year the driver's side door of Lloyd's car was badly dented while the car was parked in a secured lot used by Swifty employees. Lloyd complained to Stevens but had no evidence that a Swifty employee caused the damage. Finally, in December an employee at one of the stations where Swifty delivered gas told Lloyd that another driver had made derogatory comments about him. The station employee had a cast on his leg at the time and was limping, and the other driver suggested that the employee should "fall over" like Lloyd and "get paid" for an extended period of time without working.
During this time Swifty also granted Lloyd two medical leaves to give him time to correct complications related to his prosthesis. While negotiating the settlement agreement about his first EEOC charge in 2002, Lloyd requested and received an eighteen-week leave of absence. He was able to return to work despite Swifty's policy that an employee who is away from work for more than sixteen consecutive weeks will be fired. In October 2004, Swifty granted Lloyd a two-week leave to recover from a bout of cellulitis.
Despite the complications surrounding Lloyd's employment over the years, he was never disciplined until he received a written reprimand in January 2005. Lloyd had twice loaded gas from the wrong supplier, which caused Swifty significant monetary loss. The day after receiving the reprimand Lloyd filed a third EEOC complaint. He claimed that the reprimand, the lack of promotion, and a salary he perceived to be less than what other drivers earned were all attributable to his disability and to Swifty's effort to retaliate for his previous EEOC charges. As to his compensation, Lloyd alleged that Swifty paid less-senior drivers who were not disabled more than it paid him. He pointed to Clyde Williams, who earned $.60 more per hour but had been working for Swifty only two or three years compared to Lloyd's seven, and Combes, who received not just the extra $.60 but also health insurance. Swifty, however, presented testimony that wages and benefits were based on "business-related factors, including profitability of the truck, efficiency of the truck, the individual's contribution to the truck, the individual's performance, and labor market forces." Indeed, Swifty's employee handbook states that many factors, including the "profitability of the company" and the "individual's contribution," are weighed in making compensation decisions. Lloyd had started at $12.00 per hour and received three raises: to $12.30 per hour in January 1999, to $13.00 per hour in January 2003 after his first EEOC charge, and to $13.40 per hour in January 2004 after the third missed promotion. The EEOC issued a right-to-sue letter on May 16, 2005.
Meanwhile, after filing his third EEOC charge, Lloyd was disciplined twice more and was granted two more medical leaves. In late January 2005 he loaded gas from the wrong supplier two more times, at which point Swifty suspended him without pay for three days. Adamson and Bob Elgin, who, along with Adamson and Stevens, made personnel decisions after Swifty's president resigned, tried to call Lloyd on his cell phone to notify him about the suspension so that he would not come to work. When Lloyd did not answer their calls, they went to his house and knocked on his door numerous times. Lloyd decided they were harassing him and did not answer the door. They left and returned a short while later, and again Lloyd refused to answer the door. Instead, he called the police. When an officer came to his house, the officer delivered the suspension notice to Lloyd. The next month, February 2005, Lloyd received another written reprimand. Despite these problems, ...