In the

United States Court of Appeals
                For the Seventh Circuit

No. 07-1476

G ERALD D. L LOYD ,
                                                 Plaintiff-Appellant,
                                  v.

S WIFTY T RANSPORTATION, INC.,
                                                Defendant-Appellee.


              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.



      A RGUED A PRIL 1, 2008—D ECIDED JANUARY 9, 2009




  Before C UDAHY, R IPPLE, and R OVNER, Circuit Judges.
  R OVNER, Circuit Judge. Gerald Lloyd sued Swifty Trans-
portation, 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
2                                               No. 07-1476

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 re-
moves 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 motor-
ized 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 bacte-
rial infections, known as cellulitis, in his left knee that
if not properly treated keep him from walking for three
or four days.
No. 07-1476                                                3

  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 avail-
able. 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
4                                               No. 07-1476

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 be-
cause 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 dis-
ability, and that Smith’s changes were made in retalia-
tion 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 posi-
tion 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
No. 07-1476                                              5

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 com-
plained 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
6                                              No. 07-1476

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 settle-
ment 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 employ-
ment 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
No. 07-1476                                               7

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. Adam-
son 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, Swifty
granted Lloyd a one-week leave in March 2005 to recover
8                                              No. 07-1476

from cellulitis and another leave in May 2005. During
the latter leave, Lloyd found another job and resigned
from Swifty. Adamson, however, recommended that
Lloyd be eligible for rehire.
  Lloyd filed a complaint in federal court in August 2005.
He claimed, first, that Swifty had repeatedly failed to
promote him to lead driver, disciplined him, paid him
less than other drivers, and created a hostile work en-
vironment that led him to quit, all because of his disabil-
ity and because of his EEOC charges. Lloyd also
claimed that Swifty disciplined him in part to retaliate
for taking FMLA leave. Finally, Lloyd claimed that
Swifty had breached the Negotiated Settlement Agreement
by not interviewing him for two open lead-driver posi-
tions.
  The district court granted Swifty’s motion for sum-
mary judgment. The court held that any claim concerning
the first two times Swifty passed over Lloyd for promo-
tion was time barred. The court also rejected the FMLA
claim because Swifty employs fewer than fifty employees
and is not subject to the act. The court then held that
Lloyd’s remaining ADA claims failed because he
presented no evidence to rebut Swifty’s legitimate, non-
discriminatory reasons for not promoting him, disciplining
him, and paying him as it did, and because Lloyd had not
exhausted his allegations concerning the work environ-
ment at Swifty or his decision to quit. Finally, the court
concluded that Lloyd’s claim about the prior settlement
could not proceed because he did not present evidence
of any damages he suffered.
No. 07-1476                                                 9

  We review the district court’s grant of summary judg-
ment de novo, construing all facts and reasonable infer-
ences in the light most favorable to Lloyd, the nonmoving
party. See Mobley v. Allstate Ins. Co., 

, 544-45
(7th Cir. 2008). We will affirm if the evidence at sum-
mary judgment establishes that there is no genuine issue
of material fact and that Swifty is entitled to judgment
as a matter of law. See F ED. R. C IV. P RO . 56(c); Celotex
Corp. v. Catrett, 

, 322-24 (1986).
   We agree with the district court that Lloyd’s claims
regarding the first two times Swifty did not promote
him to lead driver—in October 2001 and June 2003—are
time barred. Under the ADA a plaintiff must file suit
within ninety days of receiving notice of his right to sue. 42
U.S.C. § 2000e-5(f)(1); Houston v. Sidley & Austin, 

, 838-39 (7th Cir. 1999); Sanders v. Venture Stores,
Inc., 

, 775 (7th Cir. 1995). The EEOC issued
right-to-sue letters in response to Lloyd’s first two
charges, which encompassed his complaints about the
first two times he was not promoted, in October 2002
and September 2003. Lloyd did not file suit until
August 2005, well over ninety days after each letter.
  Similarly, the district court properly granted summary
judgment for Swifty on the FMLA claim because Swifty
is not subject to the FMLA. That statute governs enter-
prises with fifty or more employees. 29 U.S.C. § 2611(4);
Stoops v. One Call Commc’ns, Inc., 

, 311-12 (7th
Cir. 1998). It was Lloyd’s burden to establish that Swifty
had at least fifty employees, see Caskey v. Colgate-Palmolive
Co., 

, 590 (7th Cir. 2008), but he failed to do
10                                               No. 07-1476

that. Lloyd argues that Swifty presented only a con-
clusory affidavit attesting that its workforce was no
greater than forty-two people in 2003 and 2004 without
supporting evidence, such as payroll records. He also
contends that a letter he received from Swifty about his
FMLA rights in 2000 creates a genuine issue of material
fact. But Swifty was not required to provide supporting
evidence, see 

; Keri v. Bd. of Trs. of
Purdue Univ., 

, 628 (7th Cir. 2006), and Lloyd
did not present any evidence to rebut the affidavit. More-
over, Swifty’s 2006 handbook, which Swifty placed in
evidence, states that it is not subject to the FMLA. Finally,
the 2000 letter is irrelevant because none of Lloyd’s allega-
tions involve events that year. See Komorowski v. Townline
Mini-Mart & Rest., 

, 966 (7th Cir. 1998).
  As to the remainder of his ADA claims, Lloyd did not
present a genuine issue of material fact. He argues that
he is disabled as defined under the ADA and that the
district court erred by ignoring the detriments of his
corrective device—his prosthesis. He also argues that the
district court erred by concluding that he did not show
that the legitimate, non-discriminatory reasons put forth
by Swifty for not promoting him in January and Novem-
ber 2004, disciplining him, and paying him less than
some other drivers were actually pretextual.
  The ADA prohibits employers from discriminating
“against a qualified individual with a disability because
of [his] disability.” 42 U.S.C. § 12112(a); Buie v.
Quad/Graphics, Inc., 

, 502 (7th Cir. 2004). A
plaintiff, like Lloyd, who lacks direct evidence of dis-
No. 07-1476                                                 11

crimination may proceed under the indirect method by
first establishing a prima facie case. To do so the plaintiff
must show that: (1) he is disabled under the ADA, (2) he
was meeting his employer’s legitimate employment
expectations, (3) he suffered an adverse employment
action, and (4) similarly situated employees without a
disability were treated more favorably. 

; Rooney v. Koch Air, LLC, 

, 380-81 (7th
Cir. 2005). If the plaintiff establishes a prima facie case,
the burden shifts to the defendant to articulate a
legitimate, nondiscriminatory reason for the adverse
employment action. 

. The plaintiff
must then prove by a preponderance of the evidence
that the defendant’s reasons are pretextual. 

for a retaliation claim is similar: the plaintiff
must show that he engaged in protected activity, was
performing his job satisfactorily, and was singled out for
an adverse employment action that similarly situated
employees who did not engage in protected activity did
not suffer. See Squibb v. Mem’l Med. Ctr., 

, 788
(7th Cir. 2007); Stone v. City of Indianapolis Pub. Util. Div.,

, 644 (7th Cir. 2002). We analyze Lloyd’s
discrimination and retaliation claims together because
they fail for the same reasons.
  Although the district court focused on Swifty’s reasons
for passing over Lloyd for promotion, disciplining him,
and paying him less than some other drivers, we need
not discuss those reasons because Lloyd did not establish
a prima facie case. See 

. To begin
with, Lloyd did not show that he was qualified for promo-
tion to lead driver. See Miller v. Ill. Dep’t of Corr., 107
12                                                No. 07-1476

F.3d 483, 484 (7th Cir. 1997). The ADA protects only a
“qualified individual,” someone with a disability who can
perform the essential functions of the job with or with-
out reasonable accommodation. 42 U.S.C. § 12111(8); see
Jackson v. City of Chi., 

, 811 (7th Cir. 2005). The
employer, not a court, determines what functions are
essential, and we will not second-guess that decision.

. Swifty said that lead drivers
must have knowledge of the mechanics of the trucks and
be able to manage the other drivers on the truck through
a positive attitude and ability to get along well with
others. But the supervisors in charge of hiring lead
drivers testified without contradiction that Lloyd had a
negative attitude that drew complaints from other driv-
ers. That poor attitude, according to management, contin-
ued through January 2004 when Swifty promoted McNeely
without interviewing Lloyd. Swifty also said that it did not
consider the position swap between Combes and Cave in
November 2004 to be a vacancy. Here the second prong of
the prima facie case and the pretext question do merge
because Lloyd argues that Swifty’s reasons for not selecting
him were pretextual. See Hague v. Thompson Distribution
Co., 

, 823 (7th Cir. 2006). Yet Lloyd argues on
appeal only that Swifty’s reasons are pretextual because he
was not interviewed. The district court correctly found that
Lloyd did not present any evidence to rebut Swifty’s
conclusion that Lloyd was not qualified for the January
2004 opening and that Lloyd made no argument to rebut
Swifty’s explanation that the November 2004 position swap
was not a vacancy. Thus we agree with the court’s grant of
summary judgment to Swifty on Lloyd’s claims that
No. 07-1476                                                  13

Swifty discriminated and retaliated against him by not
promoting him in January and November 2004.
  We also uphold the district court’s grant of summary
judgment on Lloyd’s claims that Swifty discriminated
and retaliated against him by disciplining him. Lloyd does
not dispute that he committed the infractions for which
he was disciplined—loading gas from the wrong sup-
plier—but, rather, he argues that drivers without a dis-
ability who did the same thing were not similarly disci-
plined. Lloyd must first show that the discipline consti-
tuted an adverse employment action. See 

. Lloyd received two written reprimands for
loading gas from the wrong supplier, but written repri-
mands without any changes in the terms or conditions
of his employment are not adverse employment actions.
See Johnson v. Cambridge Industr., Inc., 

, 902 (7th
Cir. 2003); Krause v. City of La Crosse, 

, 1000 (7th
Cir. 2001). Lloyd was also suspended for three days
without pay after the second incident. Yet although that
suspension was an adverse employment action, see
Whittaker v. N. Ill. Univ., 

, 647 (7th Cir. 2005);
Markel v. Bd. of Regents of Univ. of Wis. Sys., 

,
911 (7th Cir. 2002), Lloyd could not challenge it in court
because it occurred after he filed his final EEOC charge. A
plaintiff may litigate claims that were not included in
an EEOC charge only if the underlying events are reason-
ably related to the charges in the EEOC compalint. See
Peters v. Renaissance Hotel Operating Co., 

, 550
(7th Cir. 2002). Lloyd’s suspension was not reasonably
related to his final EEOC charge because the discipline
was imposed for additional infractions that occurred
14                                                 No. 07-1476

later and were thus unforeseeable to Swifty. See Geldon v.
S. Milwaukee Sch. Dist., 

, 819-20 (7th Cir. 2005);
Sauzek v. Exxon Coal USA, Inc., 

, 920 (7th Cir.
2000). In any event, Lloyd did not show that any driver
without a disability was not disciplined for similar mis-
conduct. Lloyd argues that three other drivers—Combes,
Williams, and Ray Hueston—all “cross-dumped” without
being disciplined. But cross-dumping, which involves
putting the wrong product into the wrong tank, is not
the same as loading gas from the wrong supplier. See Faas
v. Sears, Roebuck & Co., 

, 642 (7th Cir. 2008);
Jones v. Union Pac. R.R. Co., 

, 745 (7th Cir. 2002).
Moreover, Combes was disciplined—he was demoted
from lead driver to night-shift driver. As to Williams
and Hueston, Lloyd presented no evidence about their
alleged infractions and, indeed, admitted in his deposi-
tion that he had no personal knowledge about their
infractions and had heard only second-hand that they
may have cross-dumped without being disciplined. See
Smith v. Dunn, 

, 709 (7th Cir. 2004).
  Similarly, the district court properly granted summary
judgment to Swifty on Lloyd’s claims about his pay. Lloyd
failed to establish a prima facie case because he did not
put forth any evidence showing that he was paid less
than similarly situated drivers without a disability. See
Boumehdi v. Plastag Holdings, LLC, 

, 791 (7th
Cir. 2007); Weiss v. Coca-Cola Bottling Co., 

, 338
(7th Cir. 1993). Swifty employed twenty-two night-shift
drivers, ten of whom earned less than Lloyd. Lloyd pointed
to two night-shift drivers whom, he argues, were paid
more despite having less seniority. But the title “night-
No. 07-1476                                              15

shift driver” alone did not make these drivers similarly
situated. Swifty bases pay decisions on several business-
related factors, including the profitability of the truck
and the performance of the driver, and not on seniority or
title. Moreover, Swifty increased Lloyd’s pay four times,
including twice after he filed EEOC charges and took
leaves of absence, and Lloyd does not suggest how his
lower pay could be construed as retaliatory in light of
these raises.
  We, too, uphold the grant of summary judgment for
Swifty on Lloyd’s claims that Swifty created a hostile
work environment and constructively discharged him. We
have not decided whether allowing a hostile work en-
vironment is actionable under the ADA. Mannie v. Potter,

, 982 (7th Cir. 2005). The district court
granted summary judgment on these claims because it
found that Lloyd did not make any argument about why
a harassment claim should be recognized or raise a
factual question as to the merits of the potential claim. On
appeal Lloyd reiterates the facts that he supposes show
that he was harassed and constructively discharged—that
Marvin bothered him while he was on his cell phone,
someone kicked his car, a co-worker joked with a gas
station attendant about breaking his leg and getting paid
for not working like Lloyd, and Adamson and Elgin called
him several times on his cell phone and came to his
house to notify him of his suspension. In order to prove
a hostile work environment claim, “the alleged harass-
ment must be ‘both subjectively and objectively so severe
and pervasive as to alter the conditions of [his] employ-
ment and create an abusive working environment.’ ”
16                                              No. 07-1476

(quoting Wyninger v. New Venture
Gear, Inc., 

, 975 (7th Cir. 2004)). Whether or
not Lloyd properly exhausted this claim, it fails because
none of these incidents, taken alone or together, meets
this standard.
  Finally, summary judgment was proper as to Lloyd’s
breach-of-contract claim, which arises under Indiana law.
To prevail at trial Lloyd would need proof of the
existence of a contract, a breach by Swifty, and damages.
Rogier v. Am. Testing & Eng’g Corp., 

, 614
(Ind. Ct. App. 2000); see Pisciotta v. Old Nat’l Bancorp, 

, 635 (7th Cir. 2007). The parties agree that Lloyd
submitted evidence of the first two elements. But the
district court held that Lloyd did not show that the con-
tracting parties contemplated that Lloyd would receive
damages for a breach equal to what he would have been
paid had he been promoted, see Fairfield Dev., Inc. v.
Georgetown Woods Senior Apartments Ltd. P’ship, 

, 473 (Ind. Ct. App. 2002), because the contract
simply obligated Swifty to interview him, not necessarily
promote him. It is undisputed that Lloyd would not
have been promoted, but he suggests that he should be
eligible for damages for being denied even the opportunity
to interview for the lead-driver positions in January and
November 2004. The district court observed that the
Indiana courts have not yet recognized lost-opportunity
damages in contracts cases. In this court Lloyd does not
disagree or provide any authority that the district court
is wrong. More importantly, Lloyd failed to produce
any evidence about lost-opportunity damages.
No. 07-1476                                        17

  For the foregoing reasons, we affirm the judgment of
the district court.




                        1-9-09