Petition for Writ of Certiorari — Nese v. Julian Nordic Construction Co.

Co., 237 F.3d 701, 706 (6th Cir. 2001) There, the Sixth

Circuit stated that when a plaintiff seeks to proceed under a

“regarded as” theory, the Court must look to the state of mind

of the employer against whom plaintiff makes a claim. /d.

Under the “regarded as” prong of the ADA, membership in

the protected class becomes a question of intent and, “that

question—i.e., the employer’s motive—is one rarely

susceptible to resolution at the summary judgment stage.”

Id. (Emphasis added).

The Ross Court examined whether a former employer's

proffered reasons for terminating an employee, (employee

was not meeting performance expectations), was pretext for

disability discrimination. /d. at 708-709. In analyzing this

issue in the context of whether the former employer

“regarded” the plaintiff as disabled, the Court stressed that

the likelihood that the company regarded plaintiff as disabled

and acted with discriminatory intent in terminating his

employment is heightened by the evidence presented that

plaintiff was otherwise qualified to perform his job at

Campbell Soup Co. and that the justifications presented for

firing plaintiff were pretextual. /d. at 708.

The Ross Court noted that the fact that evidence that the

former employer's proffered reasons for termination were

pretextual is material to this point is a peculiar function of

the “regarded as” prong of the ADA. /d. That “as the

regulations interpreting the ADA explain, the purpose of the

regarded as prong is to provide a cause of action to ind: viduals

rejected from a job because of the ‘myths, fears and

stereotypes’ associated with disabilities.” See Sutton, 527

U.S. at 489; (quoting 29 CFR pt. 1630, App. § 1630.2()).

Those regulations continue,

9

“Therefore, if an individual can show that an

employer ... made an employment decision

because of a perception of disability based on

“myth, fear, or stereotype,” the individual will

satisfy the “regarded as” part of the definition of

disability. If the employer cannot articulate a

nondiscriminatory reason for the employment

action, an inference thai ‘he employer is acting

on the basis of “myth, fear, or stereotype” can be

drawn.” Jd. (Emphasis added)

The Ross Court went on to note that because, under the

“regarded as” prong, plaintiff's prima facie showing that he

is disabled turns upon the employer’s state of mind and how

it thought plaintiff's back condition affected his performance

as an employee, evidence of the employer’s state of mind

that would ordinarily be used to prove motive or

discriminatory intent may also be probative of plaintiff's

status as a person with a disability as defined by the ADA.

Id. Thus, evidence that the company created a pretextual

reason for plaintiff's firing may tend to prove that it regarded

plaintiff as a disabled employee. /d.

While the facts in the instant case are directly on point

with Ross, the Seventh Circuit refused to adopt the principles

expressed by the Sixth Circuit. Like Ross, Nese’s medical

status played a key role in Nordic and Administaff’s decision

to concoct a pretextual basis for termination. Despite the fact

that evidence of this conspiracy was established through

doctored records, copies of memos and deposition testimony,

Nese’s case was dismissed.

Had the holding in Ross applied to the instant matter,

the need for more extensive factual inquiry into whether

10

Nordic engaged in unlawful discrimination would have been

especially acute.

Many reviewing courts, since Ross, have examined the

breadth of the Ross and have articulated concerns over

plaintiff's attempts to equate pretext to evidence of

substantially limited in working. In this regard, the Seventh

Circuit cited to Rakity v. Dillon Co., 302 F.3d 1152 (10 Cir.

2002), wherein the 10th Circuit stated that “some interpret

Ross to mean the issue of pretextually concealed

discrimination and the issue of “regarded as” disabled should

be treated as one and the same. /d. at 1065. That “this

proposed modification of the McDonnell Douglas framework

would open the protected class to individuals who neither

have an actual disability nor can even present triable evidence

their employer believed they have a disability.” Jd.

Here, Nese did not contend that the issue of pretextually

concealed discrimination and “regarded as” are on and the

same. Rather, the holding in Ross is applicable to those cases

in which the plaintiff has presented enough evidence to create

a genuine factual dispute as to whether the employer regarded

its employee as unable to work. Cotter v. Ajilon Servs., Inc.,

287 F.3d 593, 599-601 (6" Cir. 2002).

Nese was not fired due to work restriction placed upon

him following a work physical (Rakity) or due to the fact

that work restrictions limited him from working in wet or

damp conditions (Moore). Unlike these two cases, the

evidence here established that as the result of Nordic and

Administaff’s concerns regarding Nese’s medical status,

these defendants invented a legitimate basis to terminate his

employment.

ll

As referenced earlier, on two occasions during Nese’s

employment with Nordic, Nordic’s President Tom Julian

asked Nese whether his epilepsy affected his ability to

perform his job. In terms of Nordic’s state of mind and how

it thought Nese’s seizure disorder affected his performance

as an employee, evidence that Defendants created a pretextual

reason for firing Nese is relevant to whether Defendants

regarded him as a disabled employee. Given that Nese was

an at-will employee, what reason would the Defendants have

to alter his employment records? If they truly felt his work

performance was so deficient that it merited termination, why

not simply fire him?

The answer to these questions is that the evidence leads

a reasonable mind to conclude that Defendants made an

employment decision because of a perception of disability

based on fear. Hence, Nese’s seizure disorder played a

significant role in his termination. Here, there is sufficient

evidence that Defendants concocted a pretextual justification

for terminating Plaintiff's employment. This fact alone, when

examined in a light most favorable to Plaintiff and resolving

all inferences in his favor, compels one to conclude that

Nese’s epilepsy was significant in the Defendants decision

to terminate him.

Rather than engage in the type of analysis articulated in

Ross, the Seventh Circuit adopted the reasoning expressed

in Moore and Rakity:

“For example, perhaps the employer terminates

an employee simply because her supervisor does

not get along with her. That might no be a reason

the employer wants to admit openly, so, instead,

work deficiencies—real or imagined—are cited

as the basis for the action.” (See Appendix A

at 7a)

12

Such an approach serves as an excuse to ignore the clear

inferences that should be drawn from the evidence presented

in this case. As opposed to drawing the conclusion that Nordic

was simply less than forthcoming in identifying its reasons

for terminating Nese, a reasonable mind could conclude that

Defendants made an employment decision because of a

perception of disability based on fear.

Hence, Nese’s seizure disorder played a significant role

in his termination. Here, there is sufficient evidence that

Defendants concocted a pretextual justification for

terminating Plaintiff's employment. This fact alone, when

examined in a light most favorable to Plaintiff and resolving

all inferences in his favor, compels one to conclude that

Nese’s epilepsy was significant in the Defendants decision

to terminate him.

Clearly, the alteration of these documents impacts heavily

upon the credibility of the Defendants and the reliability of

their explanation that they fired Nese because his work

performance was deficient.

Thus, certiorari is warranted to resolve the split between

the Sixth Circuit and the other circuits as to whether

substantial evidence .hat an individual's medical status

played a significant role in an employer's decision to fire

that individual, combined with evidence that the employer

concocted a pretextual justification for that firing, the need

for more extensive factual inquiry into whether the employer

engaged in unlawful discrimination should be is especially

acute for purposes of summary judgment.

13

CONCLUSION

For all the foregoing reasons, petitioner respectfully

requests that the Supreme Court grant review of this matter.

Respectfully submitted,

Rosert SHULMAN

Counsel of Record

Exuiot S. WIcZER

BERNARD WICZER

Wiczer & Ze_mar, LLC

500 Skokie Boulevard, Suite 350

Northbrook, Illinois 60062

(847) 849-4800

Attorneys for Petitioner

APPENDIX

la

APPENDIX A— OPINION OF THE UNIT™D STATES

COURT OF APPEALS FOR THE SEVENTH CIRCUIT

DECIDED APRIL 27, 2005

IN THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

No. 04-2576

Louis V. Nese,

Plaintiff-Appellant,

Vv.

JuLian Norpic CONSTRUCTION ComPANY and ADMINISTAFF,

Defendants-Appellees.

Appeal from the United States District Court for

the Northern District of Illinois, Eastern Division

No. 02 C 5839—John W. Darrah, Judge

ArGcueD Fesruary 8, 2005—Decipep Aprit 27, 2005.

Before Rippie, Evans, and Wittiams, Circuit Juages.

Evans, Circuit Judge. Louis Nese claims that his employer

violated the Americans with Disabilities Act, 42 U.S.C.

§ 12101(ADA), by reducing his wages and then terminating him

because of its incorrect perception that he had a disability. The

district court granted summary judgment for the employer and

Nese appeals.

2a

Appendix A

Nese, who is now in his forties, began having epileptic

seizures when he was 15 years old. He has taken prescription

medication to control his seizures for about 27 years.

He experiences no side effects from the medication and has

_ regularly worked as a carpenter for various employers, including

Handy Andy and Builders Square. He has also run a company

of his own, though it apparently was not profitable.

The defendant, Julian and Nordic Industries, Inc. (that’s the name

we find in one brief—the other says Nordic Construction

Services, Inc.), which we will refer to as Nordic, is a general

contractor providing commercial and residential services and fire

and water damage restoration. Administaff is « professional

personnel management company, providing services to Nordic.

Prior to Nese’s employment with Nordic and while he ran

his own business, he was a member of the Downers Grove

(Illinois) Chamber of Commerce and of a business networking

group called the Lodge. Only one construction contractor was

allowed to be a member of the Lodge. Nese held that

membership. Also, though, Tom Julian, the ow... of Nordic,

was a member of the Lodge in his capacity not as a contractor,

but as the owner of a cleaning service. The two men were

acquainted and, in fact, it appears that Julian was instrumental in

obtaining Nese’s membership in the Lodge. The two men also

assisted each other in generating business.

In August 2000, Julian hired Nese to work for Nordic ona

90-day trial basis. Nese informed Julian that he did not have a

driver’s license at that time because he had suffered a seizure.

Nevertheless, Julian hired him and provided another employee

to drive Nese to work until he was able to regain his driver's

license. Nese’s hourly rate of pay was $22.50 per hour.

3a

Appendix A

However, in February 2001, Nese’s hourly rate was reduced

to $18.00 per hour. The controversy between the parties arises

at this point. The wage rate was changed cither because Nese’s

work pace was not up to the standard of the other carpenters or

because other workers were making less and the disparity was

causing a problem. There is a controversy also over whether

any Nordic employee had talked to Nese < »out problems with

his work. When Nese’s hourly rate was decreased, Julian

completed an employee status change form which, at that time,

did not contain any comments regarding the pace of his work.

At some time, however, the form was amended and a comment

was added that Nese’s “[w]ork pace is not to standards of

peers.”

._ As to the pace of his work, Nese contends that it “may not

have been exactly” like that of the other workers, but it was

comparable. His supervisor, Gary Boerma, asked Nese and other

carpenters to pick up the pace. Then in September 2001, Boerma

completed a performance evaluation of Nese. The evaluation, in

its present form, has a section covered with “white-out.” Nese

says the white-out was not there when he first saw the evaluation.

Boerma says it was and that it covered a comment that another

Nordic employee found unprofessional. The original comment

was, “Louis has worked for himself for a long time and has

apparently never had to shift gears.” After that comment was

covered, Boerma wrote, “He needs to complete assigned task

within acceptable time frame, also needs to learn new tasks and.

methods.” A month later, Nese was given a raise to $18.50

per hour.

Then in November 2001, Nordic received a letter from a

legal advocacy group acting on Nese’s behalf. The letter accused

4a

Appendix A

Nordic of possible discriminatory acts relating to the company’s

treatment of Nese. In January 2002, Nese was transferred to

the side of Nordic’s business which did insurance repair work.

Julian completed an employee status change form that

documented the transfer. On the form, Julian wrote, “Pace of

work is still a problem— smaller jobs will be better suited to

gauge pace.” A few weeks later, Nese was placed on temporary

layoff due to lack of work. By October, Nese apparently felt

that he had been fired. Following the layoff, Nese worked fixing

up a home and since May 2003 has worked for a company

called One Stop Construction. He admits that he can perform

carpentry work.

The basis of Nese’s appeal is, of course, that in some manner

Nordic lowered his wages and then terminated him because of

his disability—epilepsy. He does not claim, however, that his

epilepsy actually makes him disabled within the meaning of the

ADA. His claim is that Nordic perceived him as disabled and

then made adverse employment decisions because of that

perception.

We review the grant of summary judgment de novo. Silk v.

City of Chicago, 194 F.3d 788 (7th Cir.1999). Summary

judgment is appropriate if on the record as a whole “there is no

genuine issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c).

To establish disability discrimination, Nese must show that

he is disabled within the meaning of the ADA, that he is qualified

to perform the essential functions of the job, either with or without

a reasonable accommodation, and that he suffered from an

adverse employment action because of his disability. Byrne v.

Sa

Appendix A

Board of Educ., School of West Allis-West Milwaukee, 979

F.2d 560 (7th Cir.1992). In order to establish his prima facie

case that he is disabled, Nese can show cither (1) that he has a

physical or mental impairment that substantially limits him in one

or more major life activities; (2) that he has a record of such an

impairment; or (3) that the employer regarded him as having

such an impairment. 42 U.S.C. § 12102(2). Ifhis condition does

not meet one of these categories even if he was terminated

because of some medical condition, he is not disabled within the

meaning of the Act. The ADA is not a general protection for

medically afflicted persons. Christian v. St. Anthony Med. Ctr.,

Inc., 117 F.3d 1051 (7th Cir.1997). As we said, Nese is

contending not that he is actually disabled, but that Nordic

regarded hinras disabled. Under a “regarded as” claim, a plaintiff

must prove that either: (1) the employer mistakenly believes the

employee has a physical impairment that substantially limits a

major life activity; or (2) the employer mistakenly believes that

an actual, nonlimiting impairment substantially limits a major life

activity. Amadio v. Ford Motor Co., 238 F.3d 919, 925 (7th

Cir.2001) (citing Sutton v. United Air Lines, Inc., 527 U.S.

471, 489 (1999)); see also 29 C.F.R. § 1630.2(1). In other

words, the employer “must believe either that one has a

substantially limiting impairment that one does not have or that

one has a substantially limiting impairment when, in fact, the

impairment is not so limiting.” Sutton v. United Air Lines, Inc.,

527 U.S. 471, 489 (1999); see also Peters v. City of Mauston,

311 F.3d 835 (7th Cir.2002).

If an ADA plaintiff establishes a prima facie case, the burden

shifts to the employer to offer a legitimate nondiscriminatory

reason for the employment decision. If the employer succeeds,

then the burden reverts to the plaintiff to show that there is a

6a

Appendix A

genuine dispute of material fact that the proffered reason for the

employment action is pretextual. DeLuca v. Winer Indus., Inc.,

53 F.3d 793, 797 (7th Cir. 1995) (applying the indirect method

of proof to ADA cases).

Perhaps realizing that there is nothing in this record to show

that epilepsy had anything to do with Nordic’s actions, nor has it

limited his ability to work, Nese contends that he should prevail

at the summary judgment stage because evidence that Nordic

was aware of his seizure disorder should be combined with the

evidence that Nordic “concocted” a pretextual justification for

the termination—that is, that his work pace was slow. He sees

evidence of pretext in the fact that the evaluation form has a

whited-out statement. Nese wants us to collapse the requirement

for a prima facie case under McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973), with the requirement that a plaintiff

show that the defendant’s reason for the employment action was

pretextual. Basically, the argument is that if the company’s reason

for the employment action was somehow less than

straightforward, we can draw the conclusion that the company

must necessarily have been acting out of its perception that Nese

was disabled. Nese asks too much.

The source of the argument is a case from the Court of

Appeals for the Sixth Circuit—Ross v. Campbell Soup Co.,

237 F.3d 701, 708 (2001). The court stated:

Because, under the “regarded as” prong, Ross's prima

facie showing that he is disabled turns upon the

employer’s state of mind and how it thought Ross's

back condition affected his performance as an

employee, evidence of the employer's state of mind

7a

Appendix A

that would ordinarily be used to prove motive or

discriminatory intent may also be probative of Ross's

status as a person with a disability as defined by the

ADA. Thus, evidence that the company created a

pretextual reason for Ross’s firing may tend to prove

that it regarded Ross as a disabled employee.

A later case from the same court may, however, reveal the

limits of the Ross holding. In Cotter v. Ajilon Services, Inc.,

287 F.3d 593 (2002), the court agreed with the Ross panel’s

sympathy for plaintiffs because of the steep challenge they face

in proving that an employer regarded them as substantially limited

in their ability to work. However, in upholding judgment for the

employer, the Cotter court distinguished Ross: “In Ross, there

was substantial evidence that the plaintiff’s medical status

significantly influenced his employer's decision to terminate him,

here, the evidence is insubstantial, and certainly far less compelling

than in Ross.” The court concluded that Cotter did not offer

sufficient evidence to support a conclusion by a rational trier of

fact that he was disabled or regarded as disabled within the

meaning of the ADA. In other words, the court required some

basis to support the leap from evidence of pretext to a conclusion

that disability discrimination must have been afoot.

The Ross approach was soundly rejected by the Court of

Appeals for the Tenth Circuit in Rakity v. Dillon Companies,

Inc., 302 F.3d 1152, 1165 (2002):

Mr. Rakity interprets Ross to mean the issue of

pretextually concealed discrimination and the issue

of “regarded as” disabled should be treated as one

and the same. This proposed modification of the

8a

Appendix A

McDonnell Douglas framework would open the

protected class to individuals who neither have an

their employer believed they have a disability. We

do not think the Sixth Circuit intended such an

interpretation, and if it did, we decline to follow it.

Like the Tenth Circuit, we also decline to follow Ross.

An employer is not guilty of discrimination every time it takes

an employment action for one reason, but provides a different

explanation to the employee. For example, perhaps the employer

terminates an employee simply because her supervisor does not

get along with her. That might not be a reason the employer

wants to admit openly, so, instead, work deficiencies—real or

imagined—are cited as the basis for the action. Even though we

could wish such shenanigans never happened, we suspect they

do, and they do not violate the employment laws unless, for

instance, the real reason the supervisor dislikes the employee is

based on some protected characteristic. That is why the employee

must first establish that she falls into a protected group before

we look at cither real reasons or pretextual ones for the

employment action. In other words, to say the employer was

less than perfectly frank does not prove that the employer acted

as it did for discriminatory reasons.

We will examine Nese’s claim in the same manner that we

have long examined all such claims. Nese is an epileptic. A

medical condition, however, by itself does not constitute a

disability under the statute. Toyota Motor Mfg., Ky., Inc. v.

Williams, 534 U.S. 184 (2002); Krocka v. City of Chicago,

203 F.3d 507 (7th Cir.2000); Moore v. J.B. Hunt Transp., Inc.,

9a

Appendix A

221 F.3d 944 (7th Cir.2000). To show that he was disabled

under the ADA, Nese must show that Nordic was aware of his

impairment (which it was) and that Nordic believed that he was

substantially limited in a major life activity (in this case, working)

because of the impairment. Skorup v. Modern Door Corp.,

153 F.3d 512 (7th Cir. 1998). Nordic must have believed Nese

was unable to work in a particular class or broad range of jobs.

With respect to the major life activity of work, as we noted in

Moore, the standards applicable to an actual disability apply as

well to a perceived disability. Section 12102(2) looks beyond

the plaintiff's inability to satisfy one employer. To be a substantial

limitation on his ability to work, the limitation “must be one that

affects the plaintiff's ability to perform a class or range of jobs

before it qualifies as a disabling limitation under the ADA.”

Skorup, 153 F.3d at 515. There simply is no evidence in this

record that under this standard Nordic perceived Nese as

disabled. In fact, Nese was hired even though he told Julian that

he could not drive at that time because he had suffered a seizure.

~ Also, as an aside, we will mention that the same person who

hired Nese is the one who fired him. In that situation, we have

said that it is unlikely that discrimination is involved. The

conclusion is based on a common-sense psychological

assumption, that “[i]t hardly makes sense to hire workers from a

group one dislikes (thereby incurring the psychological costs of

associating with them), only to fire them once they are on the

job.” [Citations omitted.] Johnson v. Zema -. Corp., 170

F.3d 734, 745 (7th Cir. 1999).

Finally, the evidence of pretext is itself thin. The claim is, in

part, that the statement “Louis has worked for himself for a long

time and has apparently never had to shift gears” was covered

up and the statement “He needs to complete assigned task within

10a

Appendix A

acceptable time frame, also needs to learn new tasks and

methods” was substituted. We are at a loss to understand how

the former statement reveals discrimination or, in fact, how it is

significantly different from the latter. The comment that Nese

had no ability to shift gears can be interpreted as saying he needed

to learn new tasks, etc. The fact that he worked for himself might

also be seen as a reason that he did not complete tasks in a time

frame acceptable to Nordic. Nothing indicates a belief that the

reason Nese’s work was not quite up to par was that he was

disabled and unable to perform a broad range of jobs.

For these reasons, the judgment of the district court is

AFFIRMED.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

lla

APPENDIX B — MEMORANDUM OPINION AND

ORDER OF THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS,

EASTERN DIVISION DATED MAY 25, 2004

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

No. 02 C 5839

Judge John W. Darrah

LOUIS V. NESE,

Plaintiff,

v.

NORDIC CONSTRUCTION SERVICES, INC. and

ADMINISTAFF, INC.,

Defendants.

MEMORANDUM OPINION AND ORDER

Plaintiff, Louis V. Nese, filed a suit against Defendants,

Nordic Construction Services, Inc. and Administaff, Inc.,

alleging: (1) that Nordic violated the American with

Disabilities Act (“ADA”) by reducing Plaintiff's wages and

terminating Plaintiff because he had epilepsy and that

Administaff assisted, after the fact, in creating a non-

discriminatory explanation for Nordic's actions (Count 1);

(2) that those actions allegedly taken by the Defendants also

12a

Appendix B

violated the Rehabilitation Act (Count IT); and (3) that Nordic

fraudulently induced Plaintiff into relinquishing his

involvement with the Downers Grove Chamber of Commerce

and the “Lodge” (Count III). Presently before the Court is

Defendants’ Motion for Summary Judgment.

BACKGROUND

Defendant, Julian & Nordic Industries, Inc. (“Nordic”),

incorrectly identified as Nordic Construction Services, Inc.,

is a general contractor in the business of providing

commercial and residential general contractor services, as

well as fire and water damage restoration services. (Def.’s

56.1(a)(3) Statement 4 1). Administaff Companies II, L.P.

(“Administaff”) is a professional personnel management

services company. (Id., ¥ 2).

Nese is a forty-three-year-old male who began having

seizures when he was fifteen years old.(Def.’s 56.1(a)(3)

Statement %f 4, 7). Because of his seizures, Nese has taken

prescription medication for approximately twenfy-seven

years. (Id., 8). Nese does not experience any side effects

from his medications. (Id., J 14). Prior to his work with

Nordic. Nese worked as a carpenter for various employers,

including Handy Andy and Builders Square. (Id., 10). Nese

did not have any seizures during his employment with Nordic.

(Id., J 11).

From approximately 1991 to 1998, Nesc was on

disability and unable to work in any capacity due to constant

seizures relating to his condition of epilepsy. (Plaint.’s

56.1(b)(3) Statement ¥ 2). In approximately 1997, Nese came

13a

Appendix B

off of social security disability. Since that time, Nese’s seizure

disorder has not affected his ability to work or his quality of

work. (Def.’s 56.1(a)(3) Statement fj 12-13).

After coming off of social security disability, Nese

worked for his own construction company, L & N Builders

(“L & N”). L & N became incorporated in approximately

1998. L & N did remodeling jobs. (Def.’s 56.1(a)(3)

Statement ¢ 15). From 1997 until Nese began working for

Nordic, Nese did not work for anyone except L & N. (Id.,

{ 16). At times, L & N lost money. (Id. 9 17). In the year

prior to accepting employment with Nordic, Nese was the

only employee of L & N. Nese could not find employees to

stay and work for L & N even though he had advertised for

employees in newspapers. (Id., 4 18). At one point, Nese had

to turn away $40,000 in business because he did not have

any employees. (Id., | 19). In August 2000, when Nordic

offered Nese a job, Nordic had given Nese a number of

subcontracting jobs. (Id., ¢ 20). After Nese joined Nordic,

he did not intend to keep L & N as a viable corporation.

(Id., 4 21). Nordic never asked Nese to make certain that

L & N was no longer viable. (Id., 4 22).

Prior to starting employment with Nordic, Nese was a

member of the Downers Grove Chamber of Commerce and

a member of a business-networking group called the Lodge.

Only one construction contractor was allowed to be a member

in the Lodge. (Def.’s 56.1(a)(3) Statement 4 24). Nese’s

membership in the Lodge was as the construction contractor.

(Plaint.’s 56.1(b)(3) Statement 4 5). Prior to August 31, 2000,

Tom Julian, Nordic’s owner and president, was also a member

of the Lodge. At that time, Julian did not participate in the

l4a

Appendix B

Lodge as a construction contractor. (Def.’s 56.1(a)(3)

Statement 4 25). Julian was instrumental in Nese’s joining

the Chamber of Commerce and the Lodge. (Id., 4 30). Julian

told Nese that he wanted Nese’s seat on the Lodge as the

construction contractor. Nese told Julian that everyone in

the Lodge knew Nese and asked Julian if he could remain in

the Lodge and attend the meetings on behalf of Nordic.

(Plaint.’s 56.1(a)(3) Statement 4 6). Julian’s membership in

the Lodge was for a cleaning service that Julian owned.

(Id., 4 7).

The Lodge is a group of 20 to 25 members from different

businesses who get together to give each other leads for new

business opportunities. The group meets once a week. (Def.’s

56.1(a)(3) Statement § 27). To join the Lodge, the potential

new member must get a current member to bring in the

new member. It costs $75 per month to be in the Lodge.

(Id., 4 28). The Lodge only allows one member per business

category. Julian was the founder of the Lodge. (Plaint.’s

56.1(b)(3) Statement 4 9).

Between 1998 and 2000, Nese and Julian were friends

and had a business relationship in which they assisted each

other in generating business. (Def.’s 56.1(a)(3) Statement

4 29). From the time that Nese joined the Lodge until his

termination from Nordic, Nese earned between $8,000 and

$12,000 from business generated from activities with the

Lodge. The business came from two sources — work

completed in Nese’s accountant’s home and subcontracting

work from Julian’s fire damage restoration company. (Id.,

{4 31). Prior to Nese’s accepting employment with Nordic,

Julian told Nese that he would have to relinquish his seat in

1Sa

Appendix B

the Lodge once he accepted employment with Nordic.

(Plaint.’s 56.1(b)(3) Statement 4 11).

After obtaining employment with Nordic in August 2000,

Nese decided not to renew his membership in the Chamber

of Commerce. He made this decision because he was working

for Nordic and did not want to spend $280 for the

membership. (Def.’s 56.1(a)(3) Statement ¢ 33). Nese also

decided that he did not need to generate business from the

Lodge because he now worked for Nordic. Within a few

weeks of starting his employment with Nordic, Nese gave

up his membership in the Lodge. (Id., § 34). With Nese’s

consent, Julian took Nese’s place in the Lodge. (Id., ¥ 35).

In 1998 or 1999, Julian first offered Nese a job with

Nordic. Nese did not accept the position. (Def.’s 56.1(a)(3)

Statement J 36). In August 2000, Julian again wanted to hire

Nese for a job with Nordic. At that time, Nese informed Julian

that he was unabe to drive to work becauuse he did not have

a driver's license because he had epilepsy. Nese’s inability

to drive was a factor in his search for employees for L & N.

When Nese told Julian that he had epilepsy, Julian’s esponse

indicated that he did not consider such to be a factor in Nese’s

employment. Subsequently, Julian hired Nese and provided

another employee to drive Nese until Nese was able to obtain

his driver's license. (Id., 9 38). At the time Julian offered

Nese a job, Julian told Nese tha the offer would allow Nese

to work with a team, take pressure off of Nese in terms of

finding work, and provide Nese with benefits. (id., 4 39).

Because Nese was only doing subcontracting work for Nordic

and Nese was having a difficult time finding employees, Nese

accepted a position with Nordic. (Id., 9 41). Julian also told

16a

Appendix B

Nese that Nese would no longer have to worry about having

a job. (Plaint.’s 56.1(b)(3) Statement 4 17).

Nordic hired Nese as a carpenter on August 31, 200, at

the rate of $22.50 per hour. (Def.’s 56.1(a)(3) Statement

4 43). When Nese joined Nordic, Julian informed him that

he would have a 90-day trial period to see if Julian wanted

to retain him at Nordic. (Id., 4 46).

As acarpenter for Nordic, Nese gutted out fire-damaged

rooms in homes and remodeled such areas. He performed

rough and finish carpentry work, including putting up

drywall, replacing windows, putting in trim, and putting in

cabinets. (Def.’s 56.1(a)(3) Statement.4 48). Nese also did

roofing work. (Id., J 49).

Effective February 28, 2001, Nese’s hourly rate was

reduced to $18.00 per hour. (Def.’s 56.1(a)(3) Statement 4

50). Nese’s wage was changed because he work pace was

not up to the standards of his peers. (Id., 9 51). Nese believes

that Julian told him his wage was reduced because other —

workers were making less than Nese and tht it was causing a

problem. (Id., | 52). Prior to his reduction in pay, Nese’s

supervisor, Gary Boerma, never commented to or made

complaints to Nese regarding deficiencies in Nese’s

productivity. (Plaint.’s 56.1(b)(3) Statement 4 18). Boerma

testified that he did speak to Nese on multiple occasions

concerning problems with Nese’s work. (Boerma’s Dep. pp.

45-46, 54-59). When Nese’s hourly rate was decreased to

$18.00 per hour, Julian completed an Employee Status

Change form, which did not contain any comments relating

to the pace of Nese’s work. (Plaint.’s 56.1(b6)(3) Statement

17a

Appendix B

q 46). At some time, the form was amended; and the comment

“Work pace is not to standards of peers” was added. Julian

is unsure whether he altered the form the year following the

March 12, 2001 date that he originally completed and signed

the form. (Id., J 48).

Nordic believed that Nese’s pace was deficient, and

Nordic personnel had numerous concerns and conversations

regarding Nese’s work pace. (Def.’s 56.1(a)(3) Statement

q 54). Nese believed that his work “may not have been

exactly” like other workers, but it “was comparable.” (Nese

Dep. p. 145). During his employment, Nese’s supervisor,

Gary Boerma, asked Nese, as well as other workers, to pick

_ up his pace. (Def.’s 56.1(a)(3) Statement 4] 56-57). Of three

instances in which Boerma asked Nese to pick up his pace,

one was a general address to all employees; and two were to

Nese personally. (Id., ] 59). Nese believed that he was made

the scapegoat for cost overruns and the length of time it took

to complete projects because everyone around Boerma was

either family or had been around for years. (Id., 4 64). Nese

also believes that Julian asked him twice, following his

decrease in pay, whether the medications Nese took affected

his ability to perform his job. (Plaint.’s 56.1(b)(3) Statement

4 24). Julian denies ever having asked Nese about his

medications and his ability to perform his job. (Julian’s Dep.

pp. 80-81).

On September 27, 2001, a performance evaluation was

completed by Boerma. Following the completion of the

evaluation, a meeting was held. At the meeting, Nese was

shown a copy of the evaluation; at which time, there was no

whiteout on page four of the evaluation. (Plaint.’s 56.1(b)(3)

18a

Appendix B

Statement { 26. Boerma denies that the whiteout did not exist

at the time of the evaluation, and the whiteout was used to

change a comment that another Nordic employee did not feel

was professional. (Def.’s Resp. to Plaint.’s 56.1(b)(3)

Statement | 26). Nese believes that he requested a copy of

. his performance evaluation and that the request was denied.

Nordic denies that Nese requested a copy of the evaluation.

(Id., 4 28). Nese’s performance score for his evaluation was

32 points out of 60, 2 points greater than the minimum score

of 30 for “satisfactory.” (Plaint.’s 56.1(b)(3) Statement 4 36).

On October 10, 2001, shortly after Nese had completed

his first year of employment with Nordic, Julian increased

Nese’s hourly rate of pay from $18.00 per hour to $18.50

per hour. (Plaint.’s 56.1(b)(3) Statement { 40).

On November 5, 2001, Nordic received a letter from a

legal advocacy group acting on Nese’s behalf wherein the

legal advocate accused Nordic of possible discriminatory acts

relating to their treatment of Nese. Prior to this letter, Nese’s

personnel file contained only two references relating to the

pace of his work: (1) the March 12, 2001 Employee Status

Change form and (2) the September 27, 2001 performance

evaluation. (Plaint.’s 56.1(b)(3) Statement 33).

On January 9, 2002, Nese was transferred to the

insurance repair work side of Nordic’s business. On that date,

Julian signed an Employee Status Change form that

documented Nese’s transfer. In the remarks section, Julian

wrote, “Pace of work is still a problem — smaller jobs will

be better suited to gauge pace.” At the time Julian completed

the form, Julian claims he was unaware that Nese was

19a

Appendix B

investigating the possibility of a discrimination suit. (Plaint.’s

56.1(b)(3) Statement ¥ 43). On January 18, 2002, Nese was

placed on temporary lay-off due to lack of work. (Def.’s

56.1(a)(3) Statement 4 66). On or about October 17, 2002,

Nese felt that Julian and Boerma fired him because they did

not think that Nese knew what he was doing. (Id., ¥ 68).

Between October 2003 and April or May 2003, Nese

worked fixing up a home. (Def.’s 56.1(a)(3) Statement 4 69).

Since that time, Nese has worked with One Stop

Construction. (Id., ¥ 70). Nese has been able to perform his

construction job without asking for an accommodation.

(Id., ¥ 71). Nese is not limited in his ability to work, and he

admits that he can work. (Id., ¥ 74).

ANALYSIS

Summary judgment is proper if “the pleadings,

depositions, answers to interrogatories, and admissions on

file, together with affidavits, if any, show that there is no

genuine issue as to any material fact.” Fed. R. Civ. P. 56(c);

see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23

(1986) (Celotex). All the evidence and the reasonable

inferences that may be drawn from the evidence are viewed

in the light most favorable to the nonmovant. Miller v.

American Family Mutual Ins. Co., 203 F.3d 997, 1003 (7th

Cir. 2000). Summary judgment may be granted when no

“reasonable jury could return a verdict for the nonmoving

party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986) (Anderson). However, a party cannot defeat summary

judgment by relying on unsubstantiated facts. See Greer v.

Board of Educ. of the City of Chicago, 267 F.3d 723, 729

(7th Cir. 2001).

20a

Appendix B

Count 1

Defendant argues that Nese’s ADA claim fails because

he is not “disabled” as defined by the ADA.

The ADA prohibits employment discrimination against

disabled individuals. 42 U.S.C. § 12112(a); Schneiker v.

Fortis Ins. Co., 200 F.3d 1055, 1059 (7th Cir. 2000). Under

the ADA, an individual is disabled if he (a) has “a physical

or mental impairment that substantially limits one or more

. major life activities”; (b) has “a record of such an

impairment; or (c) is “regarded as having such an

impairment.” 42 U.S.C. § 12102(2). If an individual’s

condition does not rise to the level of a disability, the

individual cannot recover under the ADA even if the

employer terminated the individual on the account of the

account. See Skorup v. Modern Door Corp., 153 F.3d 512,

514 (7th Cir. 1998) (Skorup).

Nese contends that he is disabled under 42 U.S.C.

§ 12102(2)(C) because Nordic regarded him as having a

disability that substantially limited the major life activity of

working.

It is not enough for Nese to show that Nordic was aware

of his impairment; instead, Nese must show that Nordic knew

of the impairment and believed that he was substantially

limited because of it. See Skorup, 153 F.3d at 515.

Accordingly, Nese must show that Nordic believed he was

unable to work a particular class or broad range of jobs.

See Moore v. J.B. Hunt Transport, Inc., 221 F.3d 944, 955

n. 7 (7th Cir. 1000) (Moore); Skorup, 153 F.3d at 515.

2la

Appendix B

Nese makes the conclusory statement that there is

sufficient evidence from which a reasonable fact-finder could

conclude that Nordic believed that Nese’s condition would

exclude him from a broad range of jobs. However, the only

evidence that Nese provides to support his conclusion is that

of pretext — the alleged alteration of two documents to

indicate that Nese worked too slowly. However, evidence

that Nordic may have been less than forthcoming in

identifying the reason for his termination does not establish

a disability; instead, it may provide proof of a discriminatory

motive once Nese has established that he falls within the

ADA’s protection. See Moore, 221 F.3d at 955 n. 7; Rakity v.

Dillon Co., 302 F.3d 1152, 1165 (10th Cir. 2002) (rejecting

argument that issue of pretext and the issue of “regarded as”

should be treated as one and the same). Nese fails to point to

any evidence that Nordic perceived him as impaired in

performing a broad range of jobs in various classes. Instead,

all of the evidence demonstrates that Nese worked in

construction prior to his tenure with Nordic, while at Nordic,

and following his termination at Nordic. Furthermore, the

only issue Nordic had with Nese’s job performance was the

pace of his work. Nordic had the same issue with other

employees and told other employees to pick up the pace of

their work. See Moore, 221 F.3d at 949, 955 (affirming

summary judgment after District Court found, in part, that

plaintiff’s ability to walk, sit and stand, but at a slower pace,

did not render the plaintiff disabled). Therefore, Nese has

failed to establish that he is disabled under the ADA; and his

ADA claim fails.

22a

Appendix B

Count Il

Nese concedes that his Rehabilitation Act claim fails

because he is not a federal employee alleging disability

discrimination in federal government or in & program that

receives federal financial assistance as required by the Act.

See 29 U.S.C. §§ 791, 794; Mays v. Principi, 301 F.3d 866,

868 (7th Cir. 2002).

Count Ill

Lastly, Nordic argues that Nese’s fraud claim fails. Nese

argues that genuine issues of fact exist as to whether Julian

offered Nese a position of employment as part of a scheme

to induce Nese to relinquish his seat in the Lodge.

In order to prove fraud under Illinois law, Nese must

establish: that (1) the defendant made a false statement; (2)

of material fact; (3) which defendant knew or believed to be

false; (4) with the intent to induce Nese to act; (5) Nese

justifiably relied on the statement; and (6) Nese suffered

damages from such reliance. See Houben v. Telular Corp.,

231 F.3d 1066, 1074 (7th Cir. 2000) (Houben). “Promissory

fraud” is a false representation of intent concerning future

conduct, i.¢., a promise to perform a contract when there is

no actual intent to do so. As a general rule, promissory fraud

is not actionable unless the promise is part of a “schemie™ to

defraud. See Houben, 231 F.3d at 1074. Furthermore,

“*( without specific, objective manifestations of fraudulent

intent, there can be no promissory fraud.” Bower v. Jones,

978 F.2d 1004, 1012 (7th Cir. 1992) (internal quotations

omitted).

23a

Appendix B

Here, Nese fails to identify any false statement or

representation by Julian. Instead, Nese contends that genuine

issues of material fact exist as to whether there was a scheme

to have him relinquish his seat on the Lodge. However, Nese

knew before accepting employment with Nordic that he

would have to give up his seat in the Lodge; and Nese fails

to identify any false statement or representation by anyone

to induce him to acc»; employment with Nordic and

relinquish his seat in the ‘.cdge. Without any false statement

or representation, there cannot be fraud. See Houben, 231

F.3d at 1074. Furthermore, Nese has failed to identify any

evidence of any “specific, objective manifestations of

fraudulent intent.” See Bower, 978 F.2d at 1012 (plaintiff's

fraud claim failed because plaintiff failed to prove that the

defendants made a promise never intending to keep it).

Accordingly, his fraud claim fails.

For the reasons stated above, Defendants’ Motion for

Summary Judgment is granted.

Dated: May 25, 2004

s/ John W. Darrah

JOHN W. DARRAH

United States District Judge

24a

APPENDIX C — FEBRUARY 6, 2002 FACSIMILE

FROM JULIAN NORDIC TO ADMINISTAFF

. Somera

y Gail Loe

25a

APPENDIX D — MARCH 12, 2001 ORIGINAL

EMPLOYEE STATUS CHANGE REPORT

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Employee Status Change

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Cllent Name: Wes dre Const aSean Dept: _ Colpo 'e—

Effective Date of Change: a\s1\o,4

COMPLETE ALL THAT APPLY

Name Change To (attach supporting documents):

Address Change To:

Phone # Change To:

Job Title Change To:

' Status of F/T or P/T To:

Department Change To:

Pay Rate Change To: \& 00 Per: Pasco

Change in Work. Comp. Code To: }

Other:

TITLE: ee A DATE: 4}

26a

APPENDIX E — MARCH 12, 2001 ALTERED

EMPLOYEE STATUS CHANGE REPORT

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27a

APPENDIX F — PLAINTIFF’S AUGUST 30, 2001

EMPLOYEE PERFORMANCE EVALUATION

4 EMPLOYEE PERFORMANCE EVALUATION |

COMPANIES oa

owe 130101

name: LOUIS, NCSC. JOB LOCATION:

Hire Date: B/a\/o} &~ 8 /31|e0 ,

JOB “DATE OF LAST EVALUATION:

NUMDER-€F DAYS ABSENT

~.—- NUMBER OF DAYS LATE

Dato of pam Aapesian: | Reviewer. Eve ,

Please comple sis Tole caretatty and

ie tio

Purpose Is to:

* Provide objective criteria for personne! performance evaluations on a standard

basis within your organization. .

Compe! you to examine a/! of the individual tralts affecting employee

Performances, — ,

Help you to support your conclusion and recommendation for job eapeneons

and sompensation improvements... -

Produce fairer evaluations of employees.

_ PROCEDURE:

Pages 2 and 3 desaribe Fifteen Joy traits identified with lob success or failure.

Decide for each, the level al which ihe employee performed for this rati

fg period.

Write the corresponding value. number In the rating column. Add the numbers to

obtain a total score. ;

Transfer this total to the rating scale on page 4. This will indicate, and support,

your overall opinion of the employee's performance.

Reter beck to pages 2 and 3 to comment. on the employee's principal strengths and

weaknesses. Your comments should be consistent with your rating of Individual traits.

Finally, you should describe the employee's reaction to this evaluation, If you discuss

it; and make your recommendation for any changes In tne employee's Job clasallice

tion or rate of pay.

ADI24

A : 32

ob ahs — FOP OT i. on ads Se |. MY. 11520

Form 27— Printed in

28a

Appendix F

UNSATISFACTORY queant EXCEPTIONAL CLEARLY OUTSTANOING

PERSONAL TRAITS

0 1 2 3 ‘4

— ES = =

QUANTITY oe ; }—— + STS Seeman co nome +1 — hh Gages paten Gomes

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29a

Appendix F

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org cay 5, “al

" . ‘ ' z

Comment on principal weeknesees and suggestions tor Improvement: __ o = .°os

pe ee | ae ont , ne with,

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Has this evaluation been discussed with the employee? Yes [XNo

Comments: ___- :

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