Hammel, Paul S. v. Eau Galle Cheese

In the

United States Court of Appeals

For the Seventh Circuit

____________

Nos. 03-3578 & 03-3687

PAUL S. HAMMEL,

Plaintiff-Appellant, Cross-Appellee,

v.

EAU GALLE CHEESE FACTORY,

Defendant-Appellee, Cross-Appellant.

____________

Appeals from the United States District Court

for the Western District of Wisconsin

No. 02-C-0405-C—Barbara B. Crabb, Chief Judge.

____________

ARGUED APRIL 1, 2004—DECIDED MAY 11, 2005

____________

Before FLAUM, Chief Judge, and COFFEY and EVANS,

Circuit Judges.

COFFEY, Circuit Judge. Paul Hammel, who had previ-

ously been adjudged legally blind, began his employment as

a general laborer at the Eau Galle Cheese Factory (“EGC”),

in Durand, Wisconsin, on January 8, 2000, and was dis-

charged just three weeks later, on January 27, 2000.

Shortly thereafter Hammel sued EGC claiming he was

unlawfully terminated on the basis of his disability, in

violation of the Americans with Disabilities Act (“ADA”), 42

2 Nos. 03-3578 & 03-3687

U.S.C. §§ 12111 et seq. After a bench trial, the district court

ruled that Hammel was not a “qualified individual” within

the meaning of the ADA and entered judgment as a matter

of law in EGC’s favor. Hammel v. Eau Galle Cheese Factory,

No. 02-C-0405-C, 2003 U.S. Dist. LEXIS 11380, at *2 (W.D.

Wis. June 26, 2003). We affirm.

I. Background

Hammel suffers from congenital glaucoma in both eyes,1

is without any sight in his right eye, retains only gun-barrel

vision2 in his left eye and thus is considered legally blind.

1

Congenital glaucoma is a disease, present from birth, “associated

with abnormal pressure inside the eye, which eventually causes

damage to the optic nerve and permanent loss of vision.”

EyeMDLink.com, Congenital Glaucoma, at http://

www.eyemdlink.com/Condition.asp?ConditionID=2#c (last updated

Nov. 1, 2004).

2

“Gun-barrel vision,” more commonly known as “tunnel vision,”

is a condition commonly associated with advanced glaucomatous

optic nerve damage and is characterized by a severe constriction

in a person’s visual field. DORLAND’S ILLUSTRATED MEDICAL

DICTIONARY, available at http://www.mercksource.com/pp/us/

cns/cns_hl_dorlands.jspzQzpgzEzzSzppdocszSzuszSzcommonzS

zdorlandszSzdorlandzSzdmd_v_10zPzhtm; see Mid-America Eye

Center, Glaucoma, at http://www.midamericaeye.com/surgeries/

glaucoma.html (last updated April 15, 2004). A person who suffers

from gun-barrel vision “views the world as though s(he) were

looking at the world through a tube.” THE JKL MEDICAL DICTIO-

NARY, available at http://www.jklcompany.com/a.html (last

updated May 21, 2001). However, “when due to organic causes

such as glaucoma . . . the [vision] field expands at increasing dis-

tance.” Mid-America Eye Center, Glaucoma, at http://

www.midamericaeye.com/surgeries/glaucoma.html (last updated

April 15, 2004). In Hammel’s case, he described having “no peri-

(continued...)

Nos. 03-3578 & 03-3687 3

Id. at *3. To help compensate for his loss of vision, Hammel

has received training at vocational schools in the use of

adaptive workplace techniques, and with this training has

been able to secure work performing various jobs on a

temporary basis.

In January 2000, Hammel applied for a position as a gen-

eral laborer with the defendant, Eau Galle Cheese Factory

in Durand, Wisconsin, and was granted an interview with

EGC’s business manager, Ron Hemmy. Id. at *5. During the

interview Hammel related that he suffered from glaucoma

and advised his interviewer of the limitations caused by his

disability. Id. After having the job’s requirements explained

to him, Hammel assured Hemmy that he would be able to

perform the necessary tasks without any special accommo-

dation. Hemmy agreed to hire him on a trial basis and

informed him that his employment would be conditional

and subject to “a probationary period of 90 days.” Id. at *6.

That same day Hammel was given a tour of the factory and

a list of his duties and introduced to his supervisor, John

Anibas. He was also introduced to a number of his co-

workers who in turn demonstrated what his essential duties

would be and put him to work.

A. Hammel’s Job Performance

The general laborers at EGC, such as Hammel, convert

cheese curds into the hard Italian cheeses that EGC pro-

duces, and while doing so they are required to perform a

variety of tasks at EGC’s factory in two separate work

2

(...continued)

pheral vision beyond the 20 degree corridor in front of his left

eye . . . [but the] visual field in front of his left eye is greater the

further away he is from an object.”

4 Nos. 03-3578 & 03-3687

areas; the “make room” and the “brine room.”3 The employees

are expected to perform the tasks assigned in a rapid and

efficient manner, while working in close quarters side-by-

side.

According to his supervisors, John Anibas, Dan Simpson,

and Doug Smith, Hammel had problems performing many

of his duties from day one. For example, they explained

that, as part of his duties, Hammel was expected to mold

cheese curds into “cheese wheels,” and to “turn” or “flip” the

wheels in a manner that would ensure that the final prod-

uct would have a uniform finish. On a number of occasions

Hammel failed to properly perform this task, resulting in a

defective and unsaleable product. During the production

process, part of Hammel’s job, like his co-workers, was to

remove the cheese wheels from the brine tanks and stack

them uniformly on drying racks, but on many occasions he

failed to place the cheese wheels properly on the racks, thus

allowing the soft, still pliable wheels of cheese to hang over

the edge causing a portion of the product to be wasted and

drop to the floor. In addition, the cheese wheels had to be

stamped with the production date in order that they could

be tracked in case of contamination. Anibas noted that

Hammel “did not always stamp each cheese” as was

instructed, either stamping the cheese illegibly or failing to

properly apply the stamp to the finished product. Id.

Another example of Hammel’s lack of attention or aptitude

was evidenced in his repeated difficulty stacking the cheese

in a manner so as to prevent them from being damaged by

tipping over and falling off the pallet and/or causing a safety

hazard. Furthermore his supervisors related that Hammel

failed to “keep the stacks of cheese wheels level,” resulting

in unbalanced pallets that posed the risk of toppling over.

Id. Anibas observed that, in general, Hammel also “worked

3

For a more detailed description of the duties of a general laborer

at EGC, see Hammel, 2003 U.S. Dist. LEXIS 11380, at *6-7.

Nos. 03-3578 & 03-3687 5

too slowly at his tasks to keep up with the speed of [the]

cheese production” line. Id. at *9.

Aside from a general lack of aptitude and/or ability,

Hammel also was known to exhibit a poor attitude and per-

form many of his tasks carelessly and without regard for his

safety or that of his co-workers. Indeed, Simpson “thought

the plaintiff seemed eager to work during his first week but

seemed to lose interest during the second week, when he

spent more time talking with his co-workers and taking

breaks than doing his job.” Simpson stated that he observed

Hammel literally slamming “cheese rounds down on the

work table,” a dangerous act which “pos[ed] a risk to other

workers who were at the same table [considering] [t]he

wheels weigh about 30 pounds or more and could inflict

injury if they landed on someone’s hand or foot.” Id. at *10.

On another occasion, an employee watched Hammel drive

an electrically powered pallet jack bearing a pallet of fin-

ished cheese wheels into the wall, causing the wheels of

cheese to fall off.4 Id. at *12. His supervisors on occasion

expressed concern and fear that Hammel might be seriously

injured by tripping over hoses that were strategically

positioned on the factory floor to wash away excess brine. In

addition, Simpson frequently observed Hammel banging

into the factory machinery (e.g., hitting his head on the

press rack) and Hammel even made a point of showing him

bruises on his legs that were presumably a result of

4

In the words of a co-worker who observed the incident: “[H]e

was driving the electric pallet jack, and all of a sudden the doors

[to the adjoining room] went whoop, and they come [sic] slamming

open . . . and he come [sic] out, spun a circle and slammed right

into the wall. And half of the [cheese wheels] fell off . . . . he didn’t

act like it was a very big deal at all. We just picked the [cheese

wheels] up . . . . [h]e just shrugged it off, laughed it off . . . . I’ve

never seen anybody ram a wall like that in my life. I mean, he hit

the wall at full bore.”

6 Nos. 03-3578 & 03-3687

Hammel’s bumping into things. Id. at *10. Furthermore, in

disregard for his safety, Hammel repeatedly placed his hands

not only on top of but also inside the grinding machine

when using the apparatus,5 even after having been ordered

by Simpson to cease and desist from such a practice.

Eventually Simpson was forced to prohibit Hammel from

operating the grinding machine after EGC’s owner, John

Buhlman “saw [Hammel] putting his hands on top and told

Simpson not to [allow him to] operate the grinder anymore.”

Id. at *10-11. When told by Simpson that “he could no

longer operate the grinder, [Hammel] acted disgusted with

Simpson.” Id.

Hammel’s run-in with Simpson was not the only time he

demonstrated a propensity for arrogance and insubordina-

tion. Hammel also continued to make personal phone calls

on company time in spite of the fact that he had been fre-

quently told by Anibas not to do so and also “walked away

from his post whenever he wanted to go outside for a cigar-

ette.” On one occasion Hammel went so far as to taunt

Smith after he (Hammel) had been reprimanded for taking

an unauthorized break by mocking him and, “in an offensive

tone . . . [saying] ‘Here I am Dougie, Dougie, what do you

want me to do now?’ ” Id. at *9. Particularly telling is

Hammel’s coworkers description of him as a “slacker” with

a poor attitude.

Hammel’s supervisors initially used remedial measures

in an attempt to address his mounting performance prob-

lems. They warned Hammel that he needed to be more care-

ful, instructed him to speed up or slow down when perform-

ing certain tasks that the job demanded, as well as time

and again ordering him to stop taking unauthorized work

breaks. In an attempt to accommodate Hammel and

5

Which was used to grind and recycle cheese rinds discarded

during processing.

Nos. 03-3578 & 03-3687 7

believing that he could more efficiently operate in the fac-

tory atmosphere, Anibas arranged for Hammel to work in

the make room on a regular basis, “despite the fact that

[EGC’s] practice was to rotate the general laborers between

the make room and the brine room.” Id. However, even with

this accommodation, Hammel’s work performance failed to

improve and his supervisors eventually decided they had to

meet with Hemmy to relay their concerns. Specifically, they

informed Hemmy of Hammel’s work problems, such as his

insubordination, poor attitude and work ethic, and related

their concerns about his carelessness. After discussing the

matter, Hemmy decided that the only course of action

remaining was to terminate him. Hemmy later met with

Hammel and informed him that he was being discharged

due to his limited vision and the fact that it “interfered ‘to

some extent’ with his work and caused [management] con-

cern for his safety and the safety of his coworkers.” Id. at

*13.

B. Hammel’s ADA Claims

In July 2002, Hammel responded to his termination by

filing suit against EGC under the ADA, alleging in his

complaint that EGC intentionally discriminated against

him in discharging him on the basis of his disability and

failing to afford him reasonable accommodations. EGC, in

their answer, denied discharging Hammel “because of” his

disability, and instead claimed that he was let go because

of his insubordination, consistent carelessness, poor work

attitude/ethic, and “concerns for his safety and the safety of

other employees.” In addition, EGC claimed that they had

been unable to work out any reasonable accommodations for

Hammel, but did not challenge Hammel’s allegation that he

is disabled within the meaning of the ADA.

Following discovery, Hammel and EGC each filed motions

for summary judgment. After considering the respective

8 Nos. 03-3578 & 03-3687

submissions and arguments, the court granted summary

judgment to Hammel in part on April 15, 2003, concluding

that Hammel had produced sufficient evidence to demon-

strate that his employer was motivated to discharge him

because of his disability, based on a statement from EGC’s

owner, Buhlman, in his deposition. See id. at *19-20.6 In

spite of the fact that the trial judge determined that Hammel

was discharged because of his disability, the judge found

that there was a genuine factual dispute as to whether

Hammel was a “qualified individual” under the ADA, and

reserved that issue for trial, along with the ultimate

question of whether EGC’s termination of Hammel was in

violation of the ADA.

On June 6, 2003, EGC filed a motion under Fed. R. Civ. P.

59(e), requesting that the district court reconsider its

earlier partial summary judgment order in favor of the

plaintiff in which the court found that it was undisputed

that Hammel was terminated “because of” his disability.

EGC argued that evidence developed after the entry of the

summary judgment order in favor of Hammel would

“establish that [Hammel] was not terminated as a result of

his disability; [or] in the alternative was not terminated

solely as a result of his disability.” Defendant’s Trial Brief

and Brief in Support of Motion for Partial Reconsideration,

p. 3. Accordingly, EGC sought to proffer evidence of

Hammel’s reckless behavior, refusal to follow job directions

and poor attitude in order to establish that even if discrimi-

natory intent had entered into the decision, Hammel would

6

In his deposition testimony, Buhlman was asked why EGC

did not specifically discuss any safety issues with Hammel before

discharging him. Dep. of John Buhlman, at 23-24. In response,

Buhlman stated, “I don’t know what good it would have done.” Id.

Buhlman was then asked, “And why do you say that sir?” Id.

Buhlman answered, “Well I can’t make him see. And that was the

problem.” Id.

Nos. 03-3578 & 03-3687 9

have been discharged due to his poor behavior alone and

without regard to his vision problems. The trial judge denied

EGC’s motion on two separate grounds: (1) because it was

untimely as filed, i.e., it was filed only “two working days

before the start of the trial”; and (2) because it “rested on

evidence that should have been developed before [EGC] filed

its motion for summary judgment.” “Summary judgment is

not a dress rehearsal or practice run; it ‘is the put up or

shut up moment in a lawsuit, when a party must show what

evidence it has that would convince a trier of fact to accept

its version of the events.’ ” Id. (quoting Schacht v. Wisconsin

Dept. Of Corr., 175 F.3d 497, 504 (7th Cir. 1999)).

Following the denial of EGC’s Rule 59 motion, a two-day

bench trial commenced. During the proceedings Hammel

offered testimony concerning his perception of his work

performance at EGC. Hammel stated that he felt physically

capable of working as a general laborer at the cheese

factory, and that none of his supervisors informed him of

any problems with his job performance. However, Hammel

did admit on cross-examination that he had been warned

that he needed to be more careful when stacking and

stamping the cheese wheels, and was told in no uncertain

terms not to continue making personal phone calls on work

time. Hammel, in support of his claims, also presented a

vocational expert, Richard Davis, as a witness who proposed

various accommodations that he believed EGC could have

implemented that would have allowed Hammel to perform

the essential functions of his job.

In response, EGC’s owner, Buhlman, business manager

Hemmy, and several of his supervisors and employees con-

tradicted Hammel’s testimony during the defense’s case-in-

chief by relating Hammel’s record of insubordination, poor

work attitude, reckless, careless and unsafe work habits,

10 Nos. 03-3578 & 03-3687

and overall deficiencies in his work performance.7 Specifi-

cally, Hammel’s co-workers recounted their concerns over

Hammel’s failure to perform his job with the requisite care

for their safety as well as his own. Robert Pelke testified that

Hammel frequently ran into other people and equipment

and that he acted in a reckless manner, especially when he

was using the trimming knife, and went on to state that he

had spoken with Anibas prior to Hammel’s termination

concerning Hammel’s “recklessness and carelessness.” Id.

Steven Seller, another co-worker, stated that Hammel was

usually “careless when he brought the soft cheese wheels to

the work tables and tended to throw them down on the

table,” that he had “heard other employees complain about

[Hammel] and his performance and [the] risks he posed,”

and opined that Hammel’s carelessness in the factory “was

[not] related to his visual impairment.” Id. at *12. Another

general laborer, Joseph Sabelko, testified that he attempted

to assist Hammel with his performance problems, but

whenever he attempted to explain how to properly perform

a procedure, “such as trimming cheese, [Hammel] would

turn away and refuse either to listen or to change his

procedure.” Id.

EGC also introduced evidence of Hammel’s checkered em-

ployment history; details Hammel omitted when he filed a

less than accurate and truthful work application upon

seeking employment at the company. EGC’s proffered

evidence established that Hammel in his application had:

(a) failed to account for a gap in his employment history

while he was in an addiction program; (b) falsely claimed

that a job he held at Sears was full-time while in reality it

was part-time employment; and (c) listed his job at the

Ability Building Center as lasting eleven months, when in

fact he had worked there only six months. Id. at *16. The

7

See supra at pp. 3-6.

Nos. 03-3578 & 03-3687 11

defense also demonstrated that Hammel had, for obvious

reasons, omitted a previous employer from his work history,

Schlosser Lumber in Durand, Wisconsin; a job he held

shortly before starting at EGC and left “after being criti-

cized for not working and for failing to follow directions.” Id.

at *15. Hammel’s supervisor at Schlosser, Michael Berger,

testified that he found it difficult to work with him, and

recounted that he repeatedly explained to Hammel how to

perform his duties, but Hammel refused to cooperate. Id. at

*16. For example, Berger explained that Hammel “was

supposed to pile certain size boards in certain piles [but]

failed to do [so] properly,” and that when he was forced to

criticize Hammel’s performance, Hammel became “upset.”

Id. On one such occasion, Berger stated that Hammel

“pulled out his false eye, showed it to Berger and told him,

“ ‘You can’t fire me, I’m disabled. I’ll sue you.’ ” Id. at *16-

17.

Following the close of testimony, both parties moved for

judgment as a matter of law pursuant to Fed. R. Civ. P. 52(a).

The trial judge, after considering the evidence and the law

applicable thereto, granted EGC’s motion concluding that

Hammel had failed to demonstrate that he was capable of

“perform[ing] the essential tasks of the job in a way that met

[EGC’s] reasonable expectations,” “with or without reasonable

accommodation,” and thus was not a “qualified individual”

with a disability as defined by the ADA. Id. at *21-22

(emphasis added). In reaching this conclusion, the court rea-

soned that Hammel’s “difficulties with work that were not

the result of his poor vision but were related to his poor

attitude, his carelessness and his unwillingness to accept

criticism and take direction,” and the danger he posed to his

own safety as well as that of his fellow employees provided

evidence of his inability to perform the job. Id. at *20-21

(emphasis added). Judge Crabb went on to state that

“[e]ven if [Hammel] had been physically capable of perform-

ing the essential tasks of his job he was not a qualified

12 Nos. 03-3578 & 03-3687

individual under the ADA because of his unwillingness

to make the adaptations, take the care or exert the effort

necessary to allow him to perform the essential elements of

the job.” Id. at *2. Accordingly, the court specifically con-

cluded that EGC was not guilty of discrimination “against

[Hammel] by firing him because it believed his disability

prevented him from performing his job,” and furthermore

found that “although [EGC] failed to carry out its obligation

to discuss possible accommodations with [Hammel, he]

failed to show that there were any accommodations [his

employer] could have made that would have enabled him to

perform adequately. Without such a showing, the defendant

is not liable for its failure to broach the issue of accommoda-

tions despite its knowledge of [Hammel’s] disability.” Id.

On appeal, Hammel argues that the court erred when it

found his employer did not discriminate against him in

violation of the ADA when terminating his employment and

failing to provide accommodations for his disability.

Hammel also contends that the court made several eviden-

tiary errors that entitle him to a new trial. EGC cross-ap-

peals, arguing that the court erroneously granted summary

judgment to Hammel on the issue of whether EGC was

motivated to terminate Hammel because of his disability.

II. Analysis

A. Hammel’s Discriminatory-Discharge Claim

Since the defendant received the benefits of a complete

bench trial and judgment our review is conducted pursuant

to Fed. R. Civ. P. 52(a) “under which ‘findings of fact shall

not be set aside unless clearly erroneous, and due regard

shall be given to the opportunity of the trial court to judge

the credibility of the witnesses.’ ” Cerros v. Steel Techs., Inc.,

288 F.3d 1040, 1044 (7th Cir. 2002) (quoting Anderson v.

Bessemer City, 470 U.S. 564, 573 (1985)). “[T]he question

[of] whether intentional discrimination occurred itself calls

Nos. 03-3578 & 03-3687 13

for a finding of fact, and thus the district court’s decision on

that point must be assessed under the clear error stand-

ard.” Id. (citing Pullman-Standard v. Swint, 456 U.S. 273,

287 (1982)). We review the trial judge’s legal conclusions de

novo. Id.

1. The District Court’s Consideration of “Non-

Disability-Related Evidence”

Hammel argues that the district court erred when it

considered evidence of his poor attitude, careless behavior

and deficient work performance in concluding that he was

not a “qualified individual” capable of performing the job’s

“essential functions.” Hammel claims that this so-called

“non-disability-related evidence” of an individual’s inability

to perform up to an employer’s expectations should not fac-

tor into the determination of whether or not an individual

is a “qualified individual with a disability.” We disagree.

The protections of the ADA extend only to “qualified

individuals” with a disability. Basith v. Cook County, 241

F.3d 919, 927 (7th Cir. 2001). When determining whether

a person is a “qualified individual” under the ADA, courts

undertake a two-part inquiry and consider whether, at the

time of the termination decision, the employee: 1) satisfies

the employer’s legitimate selection criterion for the job; and

2) is capable of performing the job’s “essential functions”

with or without reasonable accommodation from an em-

ployer. Id.; Bay v. Cassens Transp. Co., 212 F.3d 969, 974

(7th Cir. 2000). Put differently, the ADA is designed to

prevent discrimination against disabled persons who are

otherwise qualified for a job, but as a result of a disability

are unable perform the job’s essential functions without

reasonable accommodations. 29 C.F.R. Part 1630 Appendix

§ 1630.9; see also Matthews v. Commonwealth Edison Co.,

128 F.3d 1194, 1195 (7th Cir. 1997). However, the ADA does

not shelter disabled individuals from adverse employment

14 Nos. 03-3578 & 03-3687

actions if the individual, for reasons unrelated to his disability

(such as a poor work ethic, carelessness, bad attitude, insub-

ordination or unprofessional demeanor), is not qualified for

the job or is unable to perform the job’s essential functions

or fulfill the requirements of the position as prescribed by

the employer or “fails to meet his employer’s expectations.”

See, e.g., Williams v. United Ins. Co. of America, 253 F.3d

280, 282 (7th Cir. 2001); Tyler v. Ispat Inland Co., 245 F.3d

969, 972 (7th Cir. 2001); McPhaul v. Bd. of Comm’rs, 226

F.3d 558, 563-64 (7th Cir. 2000); Gorbitz v. Corvilla, Inc.,

196 F.3d 879, 882 (7th Cir. 1999); DePaoli v. Abbott Lab.,

140 F.3d 668, 674 (7th Cir. 1998); Leffel v. Valley Fin. Serv.,

113 F.3d 787, 794-95 (7th Cir. 1997); Siefken v. Vill. of

Arlington Heights, 65 F.3d 664, 667 (7th Cir. 1995).

EGC, as an employer, is certainly entitled to expect its

workers, disabled or otherwise, to use care and caution in

the workplace and to adhere to factory-wide safety policies

and requirements, as well as directives. See EEOC v. Exxon

Corp., 203 F.3d 871, 875 (5th Cir. 2000); EEOC v. Amego,

Inc., 110 F.3d 135, 143 (1st Cir. 1997). As noted above,

Hammel was often careless, such as when he slammed the

30-pound cheese forms on his work table posing a risk of

injury to someone’s hand or foot, bumped into his co-workers

and spilled brine on them, crashed a pallet of cheese wheels

into a wall while operating a pallet jack, and stuck his

hands in a cheese grinder after being repeatedly warned of

the danger. This pattern of hazardous and reckless behavior

jeopardized Hammel’s safety, as well as that of his fellow

workers. The fact that Hammel repeatedly saw fit to

disregard the safety and operational rules at EGC, which

were enacted to protect the workers from the dangers of

suffering injuries inherent in a busy, fast-moving factory

setting is obviously eminently relevant to a determination

of whether he can measure up to the requirements of his

position. See Exxon Corp., 203 F.3d at 875.

Nos. 03-3578 & 03-3687 15

The ADA also does not require that EGC, or any employer,

condone or accept irresponsible behavior from an employee

who, like Hammel, despite repeated warnings failed to

follow or comply with company rules and policies and con-

tinued to make personal phone calls on work time and take

unauthorized cigarette breaks. Nor does it protect an em-

ployee who is insubordinate and refuses to obey and accept

direct orders from his supervisors—including but not

limited to instructing him to get back to work in addition to

creating a direct safety hazard to himself and fellow

colleagues. See Reed v. LePage Bakeries, Inc., 244 F.3d 254,

262 (1st Cir. 2002). Moreover, the ADA provides no protec-

tion for a disabled worker who, like Hammel, for reasons

unrelated to his disability performs in such an unsatisfac-

tory manner (whether it be for reasons of carelessness,

insubordination or obstinance) that he fails to keep up with

the production pace and abide by the quality-control

standards that EGC has established as a benchmark for all

its employees. See Hoffman v. Caterpillar, Inc., 256 F.3d

568, 573 (7th Cir. 2001); Hedberg v. Indiana Bell Tel. Co.,

47 F.3d 928 (7th Cir. 1995); Mason v. Avaya

Communications, Inc., 357 F.3d 1114, 1121 (10th Cir. 2004);

Calef v. Gillette Co., 322 F.3d 75, 86 n.8 (1st Cir. 2003). We

are convinced that the court did not commit error when it

considered evidence of Hammel’s careless behavior, poor

attitude, insubordination, and deficient work performance

when considering whether he was a qualified individual

within the meaning the ADA.8

8

Given our discussion on this issue, we need not address

Hammel’s related argument that evidence of his poor attitude,

careless behavior and deficient work performance was relevant

only to an inquiry into EGC’s reasons for terminating him. As we

have discussed, consideration of this evidence was proper as part

of the court’s inquiry into whether he was capable of performing

the essential functions of the job in manner that met EGC’s

legitimate business expectations.

16 Nos. 03-3578 & 03-3687

2. The Court’s “Qualified Individual” Analysis

Hammel next asserts that the court erred in determining

that there were no reasonable accommodations that EGC

could have implemented that would have allowed him to

perform the “essential functions” of his job at the cheese

factory. As noted above, “[u]nder the ADA, the employer

avoids all liability if the plaintiff would have been fired

because incapable of performing the essential functions of

the job, and the burden of proof on the issue of capability is

not on the employer but on the plaintiff.” Miller v. Illinois

Dep’t of Corr., 107 F.3d 483, 484 (7th Cir. 1997) (emphasis

added). This is because the “provisions of the ADA relating

to employment protect only a ‘qualified individual,’ 42 U.S.C.

§ 12112; that is one who with or without a reasonable

accommodation by the employer can perform the essential

functions of the job.” Id. at 485. Thus, it is Hammel’s burden

to “supply evidence sufficient [that would] allow a jury” to

conclude that reasonable accommodations could or should

have been fashioned that would have allowed him to per-

form the duties of a general laborer in a manner that would

meet or exceed EGC’s legitimate expectations and satisfy the

essential functions of that position. McPhaul, 226 F.3d at

563 (emphasis added).

i. Hammel’s Job Performance Problems Unrelated

to His Disability

At the outset, we note that throughout the course of his

employment Hammel displayed a number of most troubling

work habits that had nothing to do with his disability.

Hammel repeatedly took unauthorized work breaks and

engaged in making personal telephone calls on work time.

In addition, without permission Hammel would walk out-

side the factory for cigarette breaks while he was on duty.

Hammel also exhibited insubordinate, arrogant and obsti-

nate behavior—unrelated to his vision impairment—when

Nos. 03-3578 & 03-3687 17

he mocked Smith after being told to get back to work

following another unauthorized cigarette break as well as

when he refused to cease and desist operating the cheese

grinder after he was reprimanded for repeatedly placing his

hands on and inside of the dangerous machinery while in

operation. The disregard Hammel exhibited for the direct

orders he was given and his demonstrated lack of respect

for his supervisor’s directions evince a troubled, confused

and unsuitable employee, not a disabled one. Many of the

reckless acts Hammel was guilty of committing in the fac-

tory bore no connection to his vision disability, but rather

to his insubordinate makeup and nature. For example,

Hammel negligently operated an electric pallet jack, which

on at least one occasion crashed into a wall, ruining a pallet

of cheese wheels (which Hammel shrugged off and laughed

about immediately after the incident). In addition, Hammel

had a tendency to slam the 30-pound cheese wheels onto the

work table, rather than carefully place them as instructed;

a practice which distracted and endangered his fellow

employees and damaged the cheese product. Hammel cannot

reasonably claim that such irresponsible and reckless

conduct was the result of his diminished sight. These were

serious employment infractions and no employer should be

required to accept much less ignore or condone this type of

irresponsible conduct simply because the employee acting

out also happens to be suffering from a disability within the

meaning of the ADA.

Due to Hammel’s careless attitude and inability to per-

form the tasks assigned to him, EGC was certainly justified

in discharging him based solely on his behavior and attitude,

without regard to his disability. However, unfortunately for

EGC, the company made Hammel’s disability an issue and

without doubt spurred this litigation when, in an attempt

to protect him from the real truth of his discharge, they

informed Hammel that he was being terminated, not

because he was an undesirable employee with serious at-

18 Nos. 03-3578 & 03-3687

titudinal problems, but because his vision impairment “in-

terfered ‘to some extent’ with his work and caused [EGC]

concern for his own safety and the safety of his coworkers,”

a mistake Buhlman acknowledged in deposition testimony

prior to trial. Id. at *19. The district court reasoned that

these statements were sufficient to demonstrate that EGC

had discharged Hammel because of his disability. However,

notwithstanding this determination, the judge ruled post-

trial that the reasons EGC had given when terminating

Hammel were irrelevant because Hammel failed at trial to

demonstrate that he was capable of performing the essential

functions of the job in manner that met EGC’s legitimate

business expectations, with or without accommodation. We

agree.

Hammel has not argued, nor could he argue that the

improper motivations of the decision makers at EGC alone

entitle him to relief pursuant to the ADA. For it is well

established that “[u]nder the ADA, the employer avoids all

liability if the plaintiff would have been fired because in-

capable of performing the essential functions of the job.”

Miller, 107 F.3d at 484 (emphasis added). Employment de-

cisions motivated by an improper or discriminatory animus

are violative of the ADA, but however improper, the ADA

only protects “qualified individuals”; those who can perform

the essential functions of their job with or without reason-

able accommodations. Id. at 485. Thus, it is Hammel’s

burden to establish either: (a) that he could perform the

essential functions of his job without accommodation; or (b)

that reasonable accommodations were available and could

have been implemented to allow him to perform the essen-

tial functions of his job.

ii. Hammel’s Inability to Perform the Job without

Accommodation

Hammel had significant difficulties while attempting to

perform the essential duties of a general laborer at the

Nos. 03-3578 & 03-3687 19

cheese factory. Further demonstrating Hammel’s inability

to perform the functions of his job in anywhere near a work-

manlike manner was his inability to properly stamp the

cheese wheels, and his likewise incapability of correctly

forming, stacking, transporting the finished cheese product,

and/or flipping the product, all essential to EGC’s business.

See supra pp. 3-6. This is not to mention the risk of injury

that Hammel posed to his co-workers by spilling brine,

tripping over hoses, and bumping into presses, walls, and

fellow workers, some of which were undoubtedly caused by

his patent carelessness. See id. Whether Hammel had

problems performing his duties at EGC resulting from his

disability or poor attitude is unimportant; however, what is

germane, and is apparent from the record, is the fact that

Hammel was unable to perform the essential functions of

his job and meet the expectations of his employer.

We agree with the trial judge’s conclusion that “it is ir-

relevant . . . whether it was [Hammel’s] vision impairment

or his refusal to take the proper care that caused him to

bump into his co-workers or the equipment, to run pallets

into the wall, or fail to turn and stack the cheese properly or

to slam the cheese down on the table . . . [for] [w]hatever the

cause he has demonstrated his inability to perform the

essential tasks of the job . . . [and is] not a qualified indi-

vidual within the meaning of the [ADA].” Hammel, 2003

U.S. Dist. LEXIS 11380, at *22-24 (emphasis added). As

this court has made clear on a number of occasions, when

the evidence demonstrates that an employee is incapable of

performing the job, the employer need not isolate the disa-

bility-related causes for an employee’s inferior performance

from problems that stem from a poor attitude, insubordina-

tion, carelessness, or outright disregard for the safety of him-

self and his co-workers. See, e.g., Waggoner v. Olin Corp., 169

F.3d 481, 484-85 (7th Cir. 1999); Palmer v. Circuit Court,

117 F.3d 351, 352 (7th Cir. 1997); Siefken, 65 F.3d at 667.

Instead, an employer is entitled to conclude that termi-

20 Nos. 03-3578 & 03-3687

nation is warranted solely on the basis of the employee’s

patent inability to perform his job in manner that meets the

essential requirements of that position. This is true even if,

after further inquiry, an employer determines that the

employee’s inability to perform the job “is due entirely to a

disability.” Matthews, 128 F.3d at 1195; see also Palmer, 117

F.3d at 352; Miller, 107 F.3d at 484-85. Either way, an

employer is only in violation of the ADA if a terminated em-

ployee can establish that reasonable accommodations exist

that would have enabled that person to perform the essential

functions of his or her job. See Miller, 107 F.3d at 485-86. As

demonstrated below, Hammel failed to put forth any such

accommodations and thus cannot prevail.

iii. Hammel’s Failure to Demonstrate Reasonable

Accommodations

At trial Hammel’s vocational expert, Richard Davis, recom-

mended that EGC could have implemented some question-

able “accommodations” that he believed would have enabled

Hammel to perform the essential functions of a general

laborer. Among these proposed “accommodations” were four

that involved Hammel’s use of “adaptive techniques” that

he had previously been trained to utilize during periods of

training at “Blind Incorporated” (a vocational training

school) prior to his employment at EGC such as using: 1) a

“feel” technique to help him properly stack the cheese

wheels; 2) a “flipping” technique to ensure that the cheese

wheels were flipped and turned correctly; 3) a “foot-shuf-

fling” technique to avoid tripping; and 4) a technique which

had him intentionally bump into and feel objects in order to

understand physical space. However, Hammel needed no

“accommodation” from EGC to make use of these adaptive

techniques.

“Reasonable accommodations” under the ADA are defined

in part as “modifications or adjustments to the work envi-

ronment [by the employer]. . . that enable a[n] . . . individual

Nos. 03-3578 & 03-3687 21

with a disability to perform the essential functions” of a po-

sition. 29 C.F.R. § 1630.2(o) (emphasis added). These “adap-

tive techniques” are skills and know-how that Hammel stated

that he had been trained to incorporate into his work

routine prior to his employment with EGC. They are not

“modifications or adjustments to the work environment [by

the employer]. . . that enable” him to perform the job’s

essential functions. Instead, Hammel’s proposed “adaptive

techniques” were nothing more than “modifications” or

“adjustments” to his own work performance that he was

expected to utilize without prodding or “accommodation”

from his employer. Cf. Sutton v. United Air Lines, Inc., 527

U.S. 471, 482 (1999) (“[I]f a person is taking measures to

correct for, or mitigate, a physical or mental impairment, the

effects of those measures . . . must be taken into account

when judging [a disability].”); Seifken, 65 F.3d at 667. Thus,

we agree with the trial judge’s determination that these

“adaptive techniques” were not “reasonable accommoda-

tions” within the meaning of the ADA.

Davis proposed additional accommodations that, in his

opinion, EGC supposedly could have undertaken to facil-

itate Hammel’s performance of some of the job’s essential

functions. Among these “proposed accommodations,”9 Davis

suggested that Hammel could learn to stamp the cheese

wheels correctly by having a “co-worker check on [his]

9

Davis also proposed that EGC could provide Hammel with

formal job training, even though EGC does not and has not in the

past provided any of its new employees with any different training

than Hammel received when he started the job. As stated infra,

this is not a reasonable accommodation under the ADA, as the

ADA “does not require employers to offer special training to

disabled employees.” Williams, 253 F.3d at 282. In addition, Davis

suggested EGC could allow Hammel to use a manual rather than

an electric pallet jack to move the pallets of cheese wheels. This

proposed accommodation does not account for potential slow-

downs in the production pace Hammel’s use of a manual pallet

jack could cause. See Hoffman, 256 F.3d at 573.

22 Nos. 03-3578 & 03-3687

stamping and teach him how to hold the stamp to make

sure that it printed.” Hammel, 2003 U.S. Dist. LEXIS 11380,

at *15. As the trial judge properly determined, this is not a

reasonable accommodation under the ADA. The courts have

been reticent, as they should be, to require employers to

provide accommodations that necessitate the enlistment of

another employee to assist an ADA claimant in performing

the essential functions of his job. Id. at *26 (citing Peters v.

City of Mauston, 311 F.3d 835, 845-46 (7th Cir. 2002)). To

be sure, the ADA does not require an employer to accommo-

date a disabled employee by making special, individualized

training or supervision available in order to shepherd that

employee through what is an essential and legitimate

requirement of the job. Williams, 253 F.3d at 282 (“the

employer is not required to give the disabled employee

preferential treatment, as by giving her a job for which

another employee is better qualified, or by waving his

normal requirements for the job in question”); Sieberns v.

Wal-Mart Stores, Inc., 125 F.3d 1019, 1022 (7th Cir. 1997).

In this regard, let us make clear that the ADA “is not an

affirmative action statute in the sense of requiring an

employer to give preferential treatment to a disabled

employee merely on account of the employee’s disability,”

see Williams, 253 F.3d at 282, although it does provide

disabled persons an opportunity to work assuming accom-

modations exist which allow them to perform a job as would

any other employee. Accommodations which require special

dispensations and preferential treatment are not reasonable

under the ADA, thus Davis’s recommendation that Hammel

be given special training and provided with a person to

“check” up on him does not qualify as a reasonable accom-

modation.

Davis also proposed that Hammel and his fellow EGC

laborers could employ “verbal cues” to avoid bumping into

each other. However, we are of the opinion that it borders

on the absurd to even suggest implementing a measure of

Nos. 03-3578 & 03-3687 23

this nature in a factory setting of this type. The particular

work environment at EGC is excessively noisy and many

employees, out of necessity, are found to wear earplugs

while performing their duties. Because he would be unable

to hear them due to the excessive noise level, it is anti-

thetical and unreasonable to propose that based on verbal

cues Hammel could be prevented from colliding with walls,

equipment and other employees near the production line on

the busy work floor.

What’s more, Hammel’s proffered accommodations ad-

dress only a small portion of EGC’s legitimate concerns with

Hammel’s careless, unacceptable work performance, such as

his inability to legibly stamp the cheese wheels, avoid

collisions with machines and other employees and a myriad

of other problems. More importantly, these proposed mea-

sures do not address Hammel’s inability to perform a

significant number of his essential assignments, duties and

responsibilities at EGC, such as forming, stacking, and flip-

ping the cheeses. In Miller v. Illinois Dept. of Corrections,

this court addressed a similar situation in which a woman

who had suffered injuries in a car accident, resulting in an

almost complete loss of vision, was discharged from her

position as a prison guard. Miller, 107 F.3d at 484. Alleg-

edly, she was told by the warden that she was being fired

because “there was no way a blind person would ever work

in his Prison.” Id. We upheld the district court’s conclusion

that the guard was not a “qualified person” within the mean-

ing of the ADA, regardless of the allegedly distasteful and

irrational motivation behind her termination, because there

was no way that she could perform the essential duties of a

corrections officer. Id. at 485. In coming to this conclusion we

found persuasive evidence that, even with accommodations,

this woman could fulfill only two out of over ten job require-

ments of the position. Id. In turn we rejected her contention

that she should have been allowed to rotate between the two

functions which she could perform because “the reason for

24 Nos. 03-3578 & 03-3687

having multiple able workers who rotate through the

different positions is to be able to respond to unexpected

surges in the demand for particular abilities.” Id. Because

Miller was unable to perform the duties of her position as

a correctional officer and the prison officials could not offer

her reasonable accommodations that would allow her to

fulfill those duties, we held that she was not entitled to the

protections of the ADA. Id.

As was the situation in Miller, Hammel and his voca-

tional expert failed to recommend to this court reasonable

accommodations that would allow him to perform the es-

sential duties required for employment as a laborer at EGC.

Id. In addition, Hammel was an insubordinate, reckless,

and thus undesirable employee, and we agree with the trial

judge’s conclusion that “[n]o accommodation would make a

difference for an employee unwilling to exercise care, accept

instruction or take responsibility for getting his work done

properly.” Hammel, 2003 U.S. Dist. LEXIS 11380, at *27

(emphasis added). Also, we agree with the district court’s

conclusion that Hammel is not a “qualified individual” with

a disability under the ADA, and thus is not entitled to the

protections thereof. Basith, 241 F.3d at 927; Bay, 212 F.3d

at 973; DePaoli, 140 F.3d at 674. As Judge Crabb noted,

perhaps “[EGC’s] business manager should have told

[Hammel] exactly why he was being fired rather than try to

sugar coat the news . . . . [but this] failing [does not] make

[EGC] liable to [Hammel] under the ADA.” Hammel, 2003

U.S. Dist. LEXIS 11380, at *28. The district court did not

commit clear error in concluding that EGC did not discrimi-

nate against Hammel because of his disability when it

terminated him.10

10

Because Hammel failed to demonstrate the existence of a rea-

sonable accommodation and because Hammel is not a “qualified

individual” under the ADA, we need not address his argument

(continued...)

Nos. 03-3578 & 03-3687 25

B. Alleged Evidentiary Errors by the District

Court

Hammel also argues that he is entitled to a new trial be-

cause the district court allegedly made evidentiary errors

when: 1) restricting the testimony of his vocational expert;

and 2) admitting for impeachment purposes evidence of a

cash gift he received from his father after leaving EGC and

the testimony of one of his former employers on the subject

of his poor attitude and work ethic. We review alleged evi-

dentiary errors under the abuse of discretion standard, and

will reverse only if the trial judge’s ruling was erroneous and

the error affected the outcome of the case. Cooper-Schut v.

Visteon Auto Sys., 361 F.3d 421, 429 (7th Cir. 2004).

1. Hammel’s Expert Witness Report

Hammel contends that the trial judge improperly re-

stricted the testimony of his vocational expert, Richard

Davis. The judge restricted Davis from testifying to the

opinions set forth in his expert witness report because

Hammel failed to timely disclose the report to EGC prior to

trial as required by Fed. R. Civ. P. 26(a)(2). The court

accordingly limited Davis’s testimony to those assertions

that had been disclosed in a timely-filed affidavit attached

to Hammel’s motion for summary judgment.

10

(...continued)

that EGC should be liable for failing to accommodate his disability

by not engaging in an “interactive process” to determine if any

reasonable accommodations existed. Mays v. Principi, 301 F.3d

866, 871 (7th Cir. 2002); see also Bombard v. Fort Wayne Newspa-

pers, Inc., 92 F.3d 560, 563-64 (7th Cir. 1996). We note only that

EGC did attempt to accommodate Hammel, by shifting his duties

and keeping him exclusively in the “make room.” See Hammel,

2003 U.S. Dist. LEXIS 11380, at *26.

26 Nos. 03-3578 & 03-3687

The Federal Rules of Civil Procedure require that an

expert’s report be disclosed “at least 90 days before the trial

date” in order for a party to make use of the report at trial.

Fed. R. Civ. P. 26(a)(2)(C); Miller v. Pfizer, Inc., 356 F.3d

1326, 1332 (10th Cir. 2004). The sanction for failing to

comply with Rule 26(a)(2)(C) is “automatic and mandatory”

exclusion from trial of the non-disclosed evidence under

Fed. R. Civ. P. 37(c)(1) “unless non-disclosure was justified

or harmless.” Musser v. Gentiva Health Servs., 356 F.3d

751, 758 (7th Cir. 2004). Hammel failed to disclose his ex-

pert witness’s report before trial and thus failed to comply

with Rule 26(a)(2)(C) and has failed to offer any explanation

as to why he did not make the report available to EGC. In

addition, Hammel has failed to offer any argument as to

why his failure to produce the report should be considered

harmless. Accordingly, we are of the opinion that the trial

court’s exclusion of Davis’s testimony as to his opinions on

the report was the proper sanction in light of Hammel’s

failure to comply with Rule 26(a)(2)(C), and based on the

record we also conclude that the court did not abuse its

discretion in imposing this sanction. Musser, 356 F.3d at

758.

2. EGC’s Impeachment Evidence

Hammel next argues that the district court erred in its

decision to admit evidence that EGC failed to disclose prior

to trial: 1) evidence of a cash gift he received after leaving

EGC; and 2) testimony of one of his former employers on

the subject of his poor attitude and work ethic. At trial,

EGC sought to enter both forms of evidence to impeach

statements Hammel made on cross-examination. Hammel

timely objected to admission of the evidence, arguing that

EGC failed to disclose prior to trial that it intended to offer

either evidence of the cash gift or the testimony by Hammel’s

former employer. See Fed. R. Civ. P. 26(a)(3). Finding that

the evidence was intended for impeachment purposes only,

the district court concluded that EGC was not required to

Nos. 03-3578 & 03-3687 27

disclose the evidence prior to trial and properly allowed

EGC to present it.

In accordance with Fed. R. Civ. P. 26 (a)(1)(A) & (3),

evidence offered “solely for impeachment purposes” does not

have to be disclosed prior to trial. See Musser, 356 F.3d at

756; DeBiasio v. Illinois Cent. R.R., 52 F.3d 678, 688 (7th

Cir. 1995).11 EGC offered evidence of a cash gift Hammel

received from his father when exploring the issue of whether

Hammel had received payment from any collateral sources

following his termination which could serve to offset his

request for an award of back pay from EGC.12 See Flowers

v. Komatsu Mining Sys., Inc., 165 F.3d 554, 558 (7th Cir.

1999). Hammel was asked on cross-examination if, after his

termination, he was “given any money even as a gift in

exchange for staying with his father,” and he answered that

he had not. To impeach Hammel’s answer, EGC offered

evidence of the $5,000 cash gift that Hammel received after

caring for his father: a $5,000 check and an accompanying

transaction statement referencing the check and containing

the notation “[t]his money was given to Paul [Hammel] as

[a] gift for taking care of Dad since last Nov.” Evidence of

the cash gift that Hammel received directly contradicted his

statement that he had not received such a gift.

We also conclude that the court did not abuse its discre-

tion when allowing EGC to present testimony from Hammel’s

former employer on the subject of his poor attitude and

work ethic. On cross examination, EGC asked Hammel a

11

Hammel also contends that EGC should have disclosed evidence

of the cash gift in response to a properly propounded discovery

request. See Varga v. Rockwell Int’l Corp., 242 F.3d 693, 697 (6th

Cir. 2001). Hammel, however, failed to produce any such discovery

request during the trial.

12

As a damage remedy, Hammel’s requested back pay from the

time of termination, lost future wages and benefits, and compen-

satory and punitive damages.

28 Nos. 03-3578 & 03-3687

series of questions concerning many aspects of his period of

employment at Schlosser Lumber in Durand, Wisconsin, the

job he held immediately prior to his employment at EGC.

Specifically, Hammel was asked if, while at Schlosser, he: 1)

was told that he was not “doing [his] job correctly”; 2)

“threatened the individuals at Schlosser Lumber with a

disability lawsuit if they fired [him]”; and 3) had walked off

the job and told his supervisor to “go to hell.” Hammel

answered “no” to all three questions. To impeach Hammel’s

answers to these questions, EGC introduced testimony from

Michael Berger, Hammel’s supervisor at Schlosser Lumber.

EGC first queried Berger as to whether he “ever [told] Mr.

Hammel that he had done [his] job incorrectly?” Berger’s

response was: “Yes, I did.” EGC next asked Berger if

Hammel “ever threaten[ed] to sue?” Berger’s answer to this

question was: “Yes, he did . . . . he said ‘I’ll sue you if you

fire me.’ ” Subsequently, EGC inquired as to how “Hammel’s

employment came to an end at Schlosser Lumber?” Berger’s

reply was: “One day he was . . . . more or less standing

there, and I told him, Get working . . . . and he went and got

all pissed off and called me a bunch of names and called me

a lot of things, and he walked off.” Berger’s testimony as to

these matters directly contradicted Hammel’s representa-

tions and suggests a lack of honesty; for Hammel claimed

that, while employed at Schlosser Lumber, he was never

told he was doing his job incorrectly, he never threatened to

file a lawsuit if terminated, and he never walked off the job

in the wake of a profanity-laced tirade. Berger’s testimony

thus served to impeach Hammel’s credibility as a witness.

Accordingly, we hold that the district court did not abuse its

discretion in admitting Berger’s testimony for impeachment

purposes, even though EGC failed to disclose Berger as a

witness before the trial.13 See DeBiasio, 52 F.3d at 688.

13

Hammel contends that EGC violated the spirit of Fed. R. Civ. P.

26 because it “intended to use” Berger’s testimony for purposes

(continued...)

Nos. 03-3578 & 03-3687 29

C. EGC’s Cross Appeal

In their conditional cross-appeal, EGC urges this court to

reverse the trial court’s grant of summary judgment in

Hammel’s favor on the issue of whether Hammel was ter-

minated on the basis of his disability. However, because we

have resolved this case in EGC’s favor, and uphold the trial

court’s subsequent judgment as a matter of law for EGC, we

need not address the cross-appeal. See Mathias v. Accor

Economy Lodging, Inc., 347 F.3d 672, 674 (7th Cir. 2003).

III. Conclusion

The decision of the district court is

AFFIRMED.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

13

(...continued)

other than impeachment. Hammel fails to develop any argument

in support of this contention, so we need not address whether

Berger’s testimony was used for both impeachment and substan-

tive purposes, a scenario which may not be covered by the excep-

tion to the discovery requirements of Fed. R. Civ. P. 26 that we

have applied herein. Compare DeBiasio, 52 F.3d at 686 with

Wilson v. AM General Corp., 167 F.3d 1114, 1122 (7th Cir. 1999);

see also Klonoski v. Mahlab, 156 F.3d 255, 270 (1st Cir. 1998).

USCA-02-C-0072—5-11-05