Petition for Writ of Certiorari — Hammel v. Eau Galle Cheese Factory

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In July 2002, pursuant to 28 U.S.C. § 1331, Petitioner

commenced suit against Respondent in United States

District Court for the Western District of Wisconsin,

alleging violations of both state and federal law, including

the ADA.

Both parties moved for summary judgment. In April

2003, the district court determined as a matter of law thet:

(1) Petitioner was an individual with a disability; (2)

Respondent knew about Petitioner’s disability when it

hired him; (3) Respondent fired Petitioner because of his

disability; and (4) Petitioner never posed a “direct threat”

to himself or others at the factory. (App. 61-82.) The

district court held that the only triable issue remaining

post-summary judgment was whether Petitioner was a

“qualified individual” under the ADA. (App. 85.) The

parties stipulated pre-trial that Petitioner’s factory job

consisted of several enumerated “essential functions.”

(App. 135-36.) Having any particular kind of attitude was

moisture

once the racks were full, removing the forms from the racks, removing

the

use of hydraulic or motorized pallet jacks.” (App. 135-36.)

not an essential function of the factory position. (App. 134-

41.)

Two working days before trial, Respondent moved for

reconsideration of the summary-judgment finding that

Respondent fired Petitioner because of his disability. Most

significantly, Respondent sought to introduce evidence

regarding the “real reason” for Petitioner’s termination.

Despite its previous position that Petitioner was fired for

safety reasons (and following the district court’s summary-

judgment determination that Petitioner posed no safety

risk to himself or others), Respondent then argued that

the “real reason” for termination was Petitioner’s “bad

attitude” in the workplace. The court denied Respondent’s

Motion for Reconsideration, stating that “summary judg-

ment is not a dress rehearsal or practice run.” (App. 46-

47.) |

Despite the denial of Respondent’s motion for recon-

sideration, and despite its previous ruling foreclosing the

issue of the reason for Petitioner’s termination, the district

court admitted evidence regarding Respondent’s newly-

discovered “real reason” for terminating Petitioner. (App.

8-10, 47-48.)

Following trial, the district court granted final judg-

ment for Respondent, finding that Petitioner’s “bad atti-

tude” prevented him from being a “qualified individual”

under the ADA. The court found no “reasonable accommo-

dations” existed, because it did not believe measure. such

as temporary supervision, additional training, supervisor

feedback, use of adaptive techniques, use of a manual

pallet-jack instead of a powered pallet-jack, use of verbal

cues by coworkers, or even dialogue between Petitioner

and his supervisor constituted reasonable accommoda-

tions. (App. 50-53.) The district court further declared

that Respondent had no duty to engage in any “interactive

process” to address problems related to Petitioner's dis-

ability before firing him. (App. 52.) The court denied

Petitioner’s Motion to Alter Judgment as a Matter of Law,

or in the Alternative for a New Trial. (App. 11-12, 94.)

The United States Court of Appeals for the Seventh

Circuit affirmed the district court’s decision, declaring that

Petitioner failed to demonstrate that he was capable of

performing the essential functions of his job because of his

attitude. The Court of Appeals agreed with the district

court that it was irrelevant whether it was Petitioner's

vision impairment or his “refusal to take the proper care”

in performing his duties, because in either instance, he

demonstrated his inability to perform the essential tasks

of the job and was therefore not a “qualified individual.”

(App. 20.) The Court of Appeals did not address directly

whether Respondent had a duty to participate in any

“interactive process,” because it found that issue was moot

given the findings that Petitioner was not a “qualified

individual” and no reasonable accommodations were

proposed. Petitioner’s Petition for Rehearing or Rehearing

En Banc was summarily denied on June 24, 2005. (App.

16-22, 95.)

REASONS FOR GRANTING THE WRIT

The Court of Appeals decision merits review by this

Court on two separate grounds:

First, the decision decided an important and funda-

mental federal question, previously unaddressed by this

Court, but requiring this Court’s resolution given the

potential impact the decision has on whether someone is a

“qualified individual” meriting protection under the ADA.

The Court of Appeals interpreted “qualified individual” in

such a way as to factor attitudinal/work-performance

issues into the otherwise objective analysis of whether

someone has the requisite training and experience to hold

a position, and therefore be a “qualified individual.” This

reasoning contradicts the plain language of the ADA, as

well as the Act’s legislative history and intent, and will

likely create confusion among the circuits. Because the

“qualified individual” analysis is similar under the ADA,

ADEA, and Title VII, this potential confusion may have

detrimental and far-reaching effects.

Second, the Court of Appeals decision effectively

establishes that an employer need not engage in the

Congressionally-mandated “interactive process” until an

employee first presents a specific reasonable accommoda-

tion to the employer. Authority regarding when the “inter-

active process” is triggered and what the consequences are

for failure to participate in that process is currently

divided among the circuits. Given the division of authority

on this important matter, and consequent risk of inconsis-

tent application of federal law, this Court's review of the

Court of Appeals decision is necessary.

I. Because of its Fundamental and Important

Nature, This Court Should Settle the Federa(|

Question of Whether An Individual’s Per-

ceived Attitude Can Determine Whether the

Individual is a “Qualified Individual” under

the ADA.

In this case, the Seventh Circuit advanced the dubious

legal proposition that an employee's attitude can deter.

mine whether that employee is a “qualified individual”

under the ADA. According to the Seventh Circuit, evidence

about the employer’s reason for terminating an employee —

offered on the eve of trial — is now relevant to whether an

employee is a “qualified individual” under the ADA.

Although Petitioner acknowledges that an employer’s

alleged reasons for termination are certainly relevant in

an ADA claim, or any other federal discrimination claim

utilizing a McDonnell Douglas analysis,’ such allegations

are to be considered under the “reason for termination”

prong of an ADA claim, not the “qualified individual”

prong. The Seventh Circuit’s reasoning, which allows

consideration of “attitude” evidence to determine qualifica-

tion, alters. the entire “qualified individual” analysis -

otherwise thought to be an objective analysis — and con-

ceivably alters every disabled employee’s burden of proof

in an ADA case.

To prove a prima facie case of disability discrimination

under the ADA, an employee must show that:

(1) he is disabled within the meaning of the

ADA,

(2) his employer is aware of his disability,

(3) he is qualified to perform the essential func-

tions of his job either with or without rea-

sonable accommodation, and

(4) he suffered from an adverse employment de-

cision because of his disability.

Foster v. Arthur Andersen, LLP, 168 F.3d 1029, 1032 (7th

Cir. 1999). In this case, Petitioner established the first,

second, and fourth elements of his prima facie case at

* McDonnell Douglas v. Green, 411 U.S. 792 (1973) (establishing

that plaintiff must first establish a prima facie case of discrimination,

then the burden shifts to the employer to articulate a legitimate, non-

discriminatory reason for its action); see also Pugh v. Attica, 259 F.3d

619, 626 (7th Cir. 2001) (applying burden-shifting to ADA case).

summary judgment, leaving only the third element, the

“qualified individual” prong left for trial. The district court

expressly ruled that Respondent fired Petitioner because

of his blindness and for no other reason. The Court of

Appeals did not disturb the District Court’s ruling in this

regard.

The ADA defines a “qualified individual” as:

an individual with a disability who satisfies the

requisite skill, experience, education and other

job-related requirements of the employment posi-

tion such individual holds or desires, and, who,

with or without reasonable accommodation, can

perform the essential functions of the position.

29 C.F.R. § 1630.2(m); see also 42 U.S.C. § 12111(8). (App.

99, 111.) The phrase “essential functions” means job tasks

that are fundamental and not marginal. 29 C.F.R.

§ 1630.2(n). A disabled individual should not be disquali-

fied from employment because he has difficulty in per-

forming tasks that bear only a marginal relationship to a

particular job. H.R. Rep. No. 101-485, pt. 2, § VI, at 45

(1990).

When analyzing whether someone saticiies the “quali-

fied individual” definition, various Courts of Appeals,

including the Seventh Circuit, have reasoned that satis-

faction of this element involves a two-step inquiry:

(1) Does the individual have proper training,

experience, or education to perform the job?

and

(2) Can the individual perform the essential

functions of the job with or without reason-

able accommodations?

Moritz v. Frontier Airlines, Inc., 147 F.3d 784, 786-87 (8th

Cir. 1998); Bultemeyer v. Fort Wayne Community Schools,

100 F.3d 1281, 1284 (7th Cir. 1996); McCrory v. Kraft Food

Ingredients, 98 F.3d 1342, 1996 WL 571146, at *5 (6th Cir.,

Oct. 3, 1996). Consequently, after it is determined that an

individual has the appropriate training, education, or

work experience to perform the job, the “qualified individ-

ual” analysis shifts to whether the employee’s disability

prevents him from performing his prescribed duties in

view of possible accommodations.

The Seventh Circuit plainly digressed from this

accepted analysis. Instead of focusing on (i) whether

Petitioner had the appropriate work experience, and (ii)

whether Petitioner was physically capable of performing

his essential job functions, the Court allowed Petitioner’s

perceived attitucie to determine whether he was a “quali-

fied individual.” In doing so, the Court effectively altered

the scope of the analysis from whether Petitioner was

physically capable of doing the job, to whether, in its view,

Petitioner performed the job adequately. (App. 14-15.) This

latter analysis, however, is reserved for the fourth prong of

an ADA claim (why an employer may have taken adverse

action against an employee), not the “qualified individual”

prong.

Indeed, an employee’s attitude can only be relevant to

the “qualified individual” analysis if a “good attitude” is an

essential function of the job. Under the ADA, “considera-

tion shall be given to the employer’s judgment as to what

functions of a job are essential, and if an employer has

prepared a written description before advertising or

interviewing applicants for the job, this description shall

be considered evidence of the essential functions of the

job.” 42 U.S.C. § 12111(8). (App. 99.) In this case, Peti-

tioner and Respondent stipulated to all essential functions

of Petitioner’s job pre-trial. (App. 135.) The parties agreed

that having a “good attitude” was not an essential function

of Petitioner’s factory position.‘ Accordingly, to the extent

that attitude evidence could have played any rightful role

in the determination of Petitioner’s “qualified” status here,

the Court of Appeals decision is not supported by the

factual record.

Aside from the unsupportive factual record, the

Seventh Circuit ignores the plain language of the relevant

statute and regulations. As referenced above, the regula-

tory language clearly and unambiguously provides that a

“qualified individual” is one who “can perform the essen-

tial functions” of a position. 29 C.F.R. § 1630.2(m). (App.

111.) The issue is capability, not willingness. Cf, Raytheon

Co. v. Hernandez, 540 U.S. 44, 53-54 (2003) (employer’s

policy to deny re-employment to applicants with past

workplace misconduct is properly examined under the

“reason for adverse action” prong, not the “qualified

individual” prong). By using the words “can perform”

instead of “performs,” Congress (and the CFR drafters)

chose to use capabilities as the measuring stick, not

attitude or other subjective measures.

Moreover, given that the second part of the “qualified

individual!” definition focuses on “reasonable accommoda-

tions,” it seems evident that an individual's “qualified”

status turns on one’s capabilities in view of a disability, not

perceived attitudinal deficiencies. The legislative history

regarding the reasonable accommodation part of the

“qualified individual” definition further supports this

assertion:

* This Court has acknowledged that employers may establish

“qualification standards” for jobs. But even these standards must be

“job-related and consistent with business necessity, and ... perform-

ance cannot be accomplished by reasonable accommodation.” See

Albertson's Inc. v. Kirkingburg, 627 U.S. 555, 568 (1999).

The Committee believes that the reasonable ac-

commodation requirement is best understood as

a process in which barriers to a particular indi-

vidual’s equal employment opportunity are re-

moved. The accommodation process focuses on

the needs of a particular individual in relation to

problems in performance of a particular job be-

cause of a physical or mental impairment.

H.R. Rep. No. 101-485, pt. 2, at 51 (1990) (emphasis

added). Put simply, the “qualified individual” analysis

concerns disability-related barriers to job performance, not

other performance barriers.

EEOC Guidelines also clarify that the ADA’s “quali-

fied individual!” analysis should not involve non-disability

related factors. The Guidelines direct that the “qualified

individual” element examines “whether an individual with

a disability is qualified for the specific position at issue,

not at whether s/he is qualified for work in general.” See

EEOC Notice No. 915.002 at § LA. (2/12/1997), available

at http://www.eeoc.gov/policy/docs/qidreps.htm! (citing 135

Cong. Rec. $10,711 (daily ed. Sept. 7, 1989)).” the extent

that “bad attitude” is a characteristic ascribed to an

employee, that characteristic is of a general nature, as

opposed to a job-specific characteristic, and therefore is not

applicable to the “qualified individual” analysis. This,

again, amplifies the incongruity of the Seventh Circuit’s

reliance on “attitude” evidence to determine one’s “quali-

fied individual” status.

The Seventh Circuit’s reasoning is even more suspect

in light of the “regarded as disabled” analysis afforded

under the ADA. See 42 U.S.C. § 12112(2XC). Courts will

not allow an employee to be terminated because his

employer regards him as disabled. See id.; see also Sutton

v. United Air Lines, Inc., 527 U.S. 471, 489, 119 S. Ct.

2139, 2149 (1999) (examining whether petitioners were

discriminated against because they were regarded as

disabled after the Court found petitioners were not dis-

abled). Accordingly, courts should not allow employers to

terminate an employee because of his disability, even when

he has a disagreeable attitude.’

Not only does the Seventh Circuit’s decision defy

statutory language, legislative history and regulatory

guidelines, its application of the “quatfied individual”

element is inconsistent with other Courts of Appeals’

interpretations of the equivalent “qualification” element in

other federal anti-discriminatory statutes. For example,

claims brought under the ADEA and Title VII require a

plaintiff to establish that he is “qualified” for the job at

issue, just as in the ADA context. Compare West v. Nabors

Drilling USA, Inc., 330 F.3d 379, 384 (5th Cir. 2003);

Peterson v. Scott County, 406 F.3d 515, 523 (8th Cir. 2005)

with Rohan v. Networks Presentations LLC, 375 F.3d 266,

273 (4th Cir. 2004).

Allegations of plaintiff’s abrasive attitude and poor

work performance, did not defeat plaintiff’s satisfaction of

the “qualification” element for purposes of the ADEA in

the Sixth Circuit’s analysis in Ploscowe v. Kadant, 121

Fed.Appx. 67, 70, 74 (6th Cir. 2005). Rather, in that case,

plaintiff’s attitude and work performance issues were

analyzed in the context of whether the employer had a

legitimate non-discriminatory reason for firing plaintiff.

Id. Similarly, in Peterson v. Scott County, the Eighth

Circuit concluded that an employee who allegedly had an

* Again, Petitioner does not disagree that an employer can terminate a

disabled worker because of his attitude. Rather, an employer cannot use an

employee's attitude as a basis to prevent that employee from receiving the

protections of the ADA as a “qualified individual” in the first instance.

argumentative attitude and exhibited poor work perform-

ance still satisfied the “qualified individual” element of her

ADEA and Title VII claims. Peterson, 406 F.3d at 521, 523.

Given the related purposes behind each of these federal

anti-discriminatory statutes, as well as their related

frameworks, it follows that the same type of objective proof

required to establish the “qualified individual” element for

each should be similar.

By allowing non-disability related factors for termina-

tion to enter into the “qualified individual” analysis, the

Seventh Circuit effectively allows employers to use the same

theory and evidence to defeat two separate prongs of dis-

abled employees’ ADA claims. If the employer has insuffi-

cient evidence to establish that the “reason for termination”

was something other than a discriminatory one, it can then

try to use the same non-disability related arguments for

termination as a basis to refute an employee's “qualified

individual” status. As discussed, this directly contradicts the

ADA’s plain language and intent, its legislative history, and

EEOC regulations and guidelines. This Court’s guidance on

this fundamental issue is needed so that the various federal

courts consider the appropriate factors when considering the

“qualified individual” prong in ADA cases.

This Court should also review the Seventh Circuit's

opinion because that decision has the potential to indelibly

and significantly change an ADA plaintiff's prima facie

burden of proof. Under the Seventh Circuit's erroneous

approach, an ADA plaintiff must establish subjective “good

employee” characteristics in order to make his prima facie

case. For example, under the Seventh Circuit's reasoning,

an ADA plaintiff may not be considered a “qualified

individual” unless he can affirmatively establish that he

has a “good attitude,” that he has a good attendance

record, and/or that he does not have significant marital or

family problems, because each of these things could

detract from performance of his job’s essential functions. A

plaintiff’s inability to establish these subjective character-

istics would therefore preclude an employer from ever

having to provide a legitimate non-discriminatory reason

for its employment decision. Accordingly, disabled employ-

ees would be precluded from recovery under the ADA, even

where their cases would otherwise present direct evidence

that the employers took adverse actions against the

employees because of their disability (as in this case).

Such a scenario ignores the precedent set by this Court in

Desert Palace, Inc. v. Costa, which acknowledged that

liability will still attach to an employer whose adverse

actions were based on “mixed motives.” Desert Palace, Inc.

v. Costa, 539 U.S. 90 (2003). The ADA drafters did not

intend for this inordinate and unnecessary proof in order

for a disabled employee to demonstrate a prima facie case

of disability discrimination.

Il. Given the Split in Authority Among the Cir-

cuits, This Court Should Address the Impor-

tant Issue of When an Employer’s Duty to

Engage in the “Interactive Process” is Trig-

gered and Should Provide Guidance on the

Resultant Consequences for Failing to Par-

ticipate in that “Interactive Process” After it

is Triggered.

This Court should also grant this petition to clarify

issues over which the various Courts of Appeals are split:

* This is, again, another example where the Seventh Circuit's

analysis could be extended to the analogous federa! anti-discriminatory

statutes such that other protected class members would now be held to

a different, higher standard in making their prima facie claims.

namely, (i) when an employer's duty to participate in the

“interactive process” is triggered, and (ii) what liability

consequences attach to an employer who refuses to par-

ticipate in the “interactive process.” These important

“interactive process” issues implicate the sssence of the

ADA in that they establish what efforts an employer must

make to understand an employee's disability and to devise

reasonable accommodations that may keep that employee

in its workforce. The various Courts of Appeal, as well as

employers and employees ~verywhere, are in need of this

Court’s guidance and resolution regarding these issues.

A. Resolution Among the Circuits Regarding

When an Employer Must Engage in the

“Interactive Process” is Crucial.

Although virtually all of the Circuits agree that an

employer has a duty to participate in the “interactive

process,” there is disagreement among them as to when

that process is triggered and requires action by the em-

ployer. See, e.g., Jackan v. New York State Dept. of Labor,

205 F.3d 562, 566 (2nd Cir. 2000), cert. denied, 531 U.S.

931 (2000); Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1112

(9th Cir. 2000) (en banc), vacated on other grounds, U.S.

Airways Inc. v. Barnett, 535 U.S. 391. (2002); Taylor v.

Phoenixville School District, 184 F.3d 296, 312-13 (3rd Cir.

1999); Fjellestad v. Pizza Hut of America, Inc., 188 F.3d

944, 952 (8th Cir. 1999); Willis v. Conopco, Inc., 108 F.3d

282, 285-86 (llth Cir. 1997); Taylor v. Principal Fin.

Group, Inc., 93 F.3d 155, 164-65 (5th Cir. 1996). There is

further conflict among the Circuits whether an employer’s ©

refusal to participate in the “interactive process” triggers

liability. Calero-Cerezo v. US Dept. of Justice, 355 F.3d 6,

24 (ist Cir. 2004); Smith v. Midland Brake, Inc., 180 F.3d

1154, 1174 (10th Cir. 1999); Taylor, 184 F.3d 317-18; Princi-

pal, 93 F.3d at 165; Fjellestad, 188 F.3d at 951-952; Willis,

108 F.3d at 285-86; Mays v. Principi, 301 F.3d 866, 870

(7th Cir. 2002).

In the Third and Tenth Circuits, the employer has a

duty to engage in an “interactive process” after it knows

about the employee’s disability and his desire for accom-

modation, if necessary, in order to stay with the company.

Smith, 180 F.3d at 1172; Taylor, 184 F.3d at 315 (quoting

Bultemeyer v. Fort Worth Comm. Sch., 100 F.3d 1281, 1285

(7th Cir. 1996)). In developing this rule of law, the Third

Circuit reasoned that both parties hold information that

the other does not have, and through the “interactive

process,” the exchange of information may lead to identifi-

cation of suitable jobs or accommodations. Taylor, 184 F.3d

at 316. Furthermore, “it would make little sense to insist

that the employee must have arrived at the end product of

the interactive process before the employer has a duty to

participate in that process.” Jd. Consequently, in these

jurisdictions, an employer has to proactively and affirma-

tively participate in the “interactive process” before it will

be determined that no reasonable accommodations exist.

Id. at 317; Smith, 180 F.3d at 1171-74.

The Ninth Circuit has similarly held that the “interac-

tive process” is triggered either by an employee's request

for accommodation or by the employer’s recognition of the

need for such an accommodation where the employee has

trouble asking for the accommodation because of the

disability. Barnett, 228 F.3d at 1112. Relying to some

extent on, the Third and Tenth Circuits’ reasoning, the

Ninth Circuit explained in Barnett v. US Air, Inc. that

forcing an employee to come up with reasonable accommo-

dations before requiring participation in the process by the

employer, (i) effectively exempted the employer from the

process, and (ii) thereby conflicted with the goals of the

ADA. Id. at 1113. As a result, the “interactive process,” as

defined by the Ninth Circuit, requires: (1) direct communi-

cation between the employer and employee to explore in

good faith the possible accommodations; (2) consideration

of the employee’s request; and (3) offering an accommoda-

tion that is reasonable and effective. Zivkovic v. Southern

California Edison Co., 302 F.3d 1080, 1089 (9th Cir. 2002)

(citing Barnett, 228 F.3d at 1114-15).

The Fifth Circuit has held that it is the employee's

initial request for an accommodation that triggers the

employer's obligation to participate in the interactive

process. Principal, 93 F.3d at 165. The Principal court

recognized, however, that there may be instances where

“the disability, resulting limitations, and necessary rea-

sonable accommodations, are not open, obvious, and

apparent to the employer.” Jd. (reviewing claim by em-

ployee with bipolar disorder). In those specific situations,

the Fifth Circuit suggested that the employee may need to

also proffer possible accommodations to initiate the

“interactive process.” Jd.

Conversely, the Sixth, Eighth, and Eleventh Circuits

have taken a different approach. These Circuits recognize

that an employer has a duty to participate in the “interac-

tive process,” but this duty does not arise until after an

employee presents evidence tlLat a reasonable accommoda-

tion exists. Smith v. Ameritech, 129 F.3d 857, 866 (6th Cir.

1997); Fjellestad, 188 F.3d at 952; Willis, 108 F.3d at 953-

54.

Prior to hearing this case, the Seventh Circuit held

that both an employer and an employee have a duty to

assist in finding an appropriate accommodation. Beck v.

‘

University of Wis. Bd. of Regents, 75 F.3d 1130, 1134 (7th

Cir. 1996). It set forth the respective obligations of the

parties in executing the accommodation process. First, an

employee has the responsibility to inform the employer of

his disability. Hendricks-Robinson v. Excel Corp., 154 F.3d

685, 693 (7th Cir. 1998). If after acquiring this knowledge,

an employer believes the disability is preventing the

employee from performing the job’s essential functions,

then the employer should (i) put the employee on notice

that there is a problem and (ii) raise the issue of accom-

modations with the employee. Jd.; Bombard v. Fort Wayne

Newspapers, Inc., 92 F.3d 560, 563 (7th Cir. 1996); Beck, 75

F.3d at 1134; see also, Enforcement Guidance: Reasonable

Accommodation and Undue Hardship Under the Americans

with Disabilities Act, Question 40, EEOC Notice No. 915.002

(10/17/2002), available at http://www.eeoc.gov/policy/docs/

accommodation. html. And although an employer may later

decide that an accommodation proposed or discussed

during the “interactive process” would be ineffective or

unfeasible, that determination does not negate the initial

affirmative obligation of the employer to seek out the

employee and work with him to craft reasonable accom-

modations. See Giles v. United Airlines, 213 F.3d 365, 373

(7th Cir. 2000); Hendricks-Robinson, 154 F.3d at 693;

Bultemeyer, 100 F.3d at 1286.

Based on its reasoning in cases such as Hendricks-

Robinson, Beck, and Bultemeyer, the Seventh Circuit seems

to have recognized that, if an employer knows about an

employee's disabled condition and believes that that condi-

tion is causing work-performance issues, then the employer

should engage in the “interactive process” to determine

what, if any, accomodation might be possible. This

“triggering” of the “interactive process” based on the

employee's knowledge is consistent with the Seventh

Circuit’s other decisions in which employers and employ-

ees were held responsible for participating in the “interac-

tive process”:

[Both] parties bear responsibility for determining

what accommodation is necessary ... [Neither

party should be able to cause a breakdown in the

process for the purpose of either avoiding or in-

flicting liability. Rather, courts should look for

signs of failure to participate in good faith or

failure by one of the parties to help the other

party determine what specific accommodations

are necessary. A party that obstructs or delays

the interactive process is not acting in good faith.

A party that fails to communicate, by way of ini-

tiation or response, may also be acting in bad

faith. In essence, courts should attempt to isolate

the causes of the breakdown and then assigr re-

sponsibility.

Bultemeyer, 100 F.3d at 1285 (citing Beck, 75 F.3d at 1135).

Notwithstanding its precedent, the Seventh Circuit

declined to directly address the “interactive process” issues

that Petitioner raised on appeal, other than to suggest that

Respondent’s unilateral movement of Petitioner from one

area in the factory process to another — without informing

Petitioner why the change was made and without discussing

any accommodations with Petitioner - might satisfy or

relieve the employer from its duty to participate in the

“interactive process.” (App. 27, n.10.) The Seventh Circuit

reasoned that it was not necessary to analyze the “interac-

tive process” issue, because Petitioner failed to establish

that its proposed accommodations were reasonable. (Id.)

The Seventh Circuit’s refusal to review the district

court’s “interactive process” analysis effectively upholds

the district court’s ruling that an employer need not

engage in the “interactive process” if the employee has not

first proposed a reasonable accommodation. This reason-

ing is inherently flawed for several reasons. First, it

contradicts the Seventh Circuit’s previous holdings that

require an employer to engage in the “interactive process”

when it knows of an employee’s disabled status and

perceives problems related to that disability.’ Second, as

the Third Circuit points out, if an employer has no obliga-

tion to engage in the “interactive process,” then possible

accommodations likely will never be discovered by the

employer or the employee. Third, even under the rule that

an accommodation must first be proposed, the “interactive

precess” should have been triggered in this case, because

Petitioner proactively requested that Respondent tell him

if disability-related concerns arose so that accommoda-

tions could be discussed — such request being a specific

accommodation in and of itself. See Bultemeyer, 100 F.3d

at 1285 (finding that a reasonable accommodation may be

as simple as “sitting down ... and talking about the

situation.”).

The reasoning employed by the Seventh Circuit in this

case aligns with the Eighth and Eleventh Circuits’ reason-

ing, but is inconsistent with the ADA’s legislative history.

The very purpose of the ADA is to preclude employment

decisions that “have the purpose or effect of subjecting a

qualified individual with a disability to discrimination on

the basis of his or her disability.” H.R. Rep. No. 101-485,

pt. 2, § VI, at 45 (1990). By its very nature, the ADA

focuses on assessing employers’ bases for adverse employ-

ment decisions and making sure that those decisions are

" The Seventh Circuit seems to ignore the facts in this case that

Respondent knew about Petitioner's low-vision disability and believed

Petitioner was performing inadequately because of that disability.

founded on legitimate reasons, not fears, stereotypes, and

biases related to employees’ disabilities. It is for this very

reason that EEOC regulations require an interactive

process — a problem-solving approach — by which an

employer can gain information about an employee's

disability and restrictions, instead of assuming what the

employee can and cannot do. See S. REP. No. 101-116, at 34

(1989); see also H.R. Rep. No. 101-485, pt. 2, at 65 (1990).

When Congress was contemplating the ADA, its

members suggested that the employer use an informal

four-step process to identify and provide an appropriate

accommodation. H.R. REP. No. 101-485, pt. 2, § VI, at 52.

The first informal step identified was for the employer to

identify and distinguish between essential and nonessen-

tial job tasks of the relevant position. As part of this initial

step, the employer was to collaborate with the individual

with the disability “to identify the abilities and limitations

of the individual with a disability for whom the accommo-

dation is being provided.” Id. The next step in the process

addressed identification of possible accommodations — all

of which required the employer to seek information out-

side of its own resources:

Having identified the barriers to job performance

caused by the disability, the second informal step is

to identify possible accommodations. As noted

above, the search for possible accommodations

must begin with consulting the individual with a

disability. Other resources to consult include the

appropriate State Vocational Rehabilitation Ser-

vices agency, the Job Accommodation Network

operated by the Presidents Committee on Em-

ployment of People With Disabilities, or other

employers.

Id. (emphasis added); cf. 29 C.F.R. § 1630, App. § 1630.9

(EEOC’s interpretive guidance setting forth similar four

steps to the “interactive process”). Based on this legislative

history, there is no doubt that Congress intended for

employers to have the affirmative duty to seek out infor-

mation both from their disabled employees, as well as

other third-party resources. This legislative history cannot

fairly be read to impose a duty on an employee to come up

with possible accommodations before the employer has a

duty to participate in the informal process.*

The better-reasoned approach is the Third, Ninth, and

Tenth Circuits’ reasoning that is consistent with the ADA’s

legislative history. If an employer knows about an employee’s

disability and the employer recognizes that the employee

is having trouble performing as a result of that disability,

the employer should not be able to bury its head in the

sand and fire the employee without first trying to resolve

the employee’s disability-related work problems. At a

minimum, the employer should at least be willing to talk

to the employee about the perceived limitations of his

disability and to try to elicit information and ideas to

develop possible accommodation in good faith.

* The Court of Appeals concurred with the district court that it was

irrelevant whether Petitioner’s difficulty in performing the “essential

functions” of his job stemmed from his vision problems or from other

non-disability related factors. (App. 20.) This view demonstrates the

Seventh Circuit's misunderstanding of the entire purpose of the

“interactive process” and its apparent willingness to relieve employers

of any responsibility to determine the precise limitations of an individ-

ual’s disability before firing him.

B. There Should be Uniformity Among the

Circuits as to the Liability Imposed on

Employers Refusing to Participate in the

“Interactive Process.”

Because it naturally relates to the “triggering” of the

“interactive process,” this Court should address the related

issue as to what consequences flow from an employer’s

refusal to participate in that interactive process. There is

currently a split of authority on this issue, and resolution

and uniformity is necessary so that employees and em-

ployers across the country are all held to the same expec-

tations.

Most circuits hold that liability attaches to an em-

ployer who fails to engage in the interactive process. See,

e.g., Calero-Cerezo, 355 F.3d at 2; Smith, 180 F.3d at 1174;

Taylor, 184 F.3d at 317-18; Bultemeyer, 100 F.3d at 1285;

Principal, 93 F.3d at 165. These courts reason that, be-

cause the “interactive process” is such a “key mechanism

for facilitating the integration of disabled employees into

the workplace,” employers must face liability when they

reject this core process. Barnett, 228 F.3d at 1116.

There is a minority view among some circuits how-

ever, namely the Eighth and the Eleve.sth, that there is no

per se liability when an employer does not participate in

the “interactive process.” Fijellestad, 188 F.3d at 951-952.

Willis, 108 F.3d at 285-86. These are the same jurisdictions

in which the “interactive process” is not triggered until the

disabled employee proposes a specific accommodation to

his employer.

The Seventh Circuit’s decision to forego analyzing the

“jnteractive process” issues effectively upheld the dis-

trict court’s conclusior. that there is no per se liability

imposed for an employer’s indifference to the “interactive

process.” (App. 27 n.10.) This is true, because, if the

Seventh Circuit believed per se liability existed for failing

to participate in the “interactive process,” it would have

recognized that the issue was relevant even where none of

the accommodations proposed by Petitioner at trial were

accepted as “reasonable” by the Court.

The Seventh Circuit’s unwillingness to address the

consequences of Respondent’s utter refusal to engage in

the “interactive process” at all, contradicts the Seventh

Circuit’s previous ruling that failure to participate in the

process should impute liability to the employer. Mays, 301

F.3d at 870 (“if [a reasonable accommodation] existed yet

[the employee] failed to obtain it because the employer had

not consulted her in order that ‘together they can identify

the employee’s needs and discuss accommodation options,’

the fault in the failure to make the accommodation avail-

able would be the employer’s and he would lose.”); see also

Bultemeyer, 100 F.3d at 1285. The Court of Appeals’ view

is also contrary to the First, Third, Fifth, Ninth, and Tenth

Circuits’ position that per se liability should attach for

non-participation in the process. Calero-Cerezo, 355 F.3d

at 24 (“An employer’s refusal to participate in the process

may itself constitute evidence of a violation of the stat-

ute.”); Barnett, 228 F.3d at 1116; Smith, 180 F.3d at 1174;

Taylor, 184 F.3d at 317-18; Principal, 93 F.3d at 165.

Recognizing the disabled employee’s onerous task to come

up with reasonable accommodations without the benefit of

cooperation by his employer, the Fifth Circuit reasoned:

An employer who acts in bad faith in the interac-

tive process will be liable if the jury can reasona-

bly conclude that the employee would have been

able to perform the job with accommodations. In

making that determination, the jury is entitled

to bear in mind that had the employer partici-

pated in good faith, there may have been other,

unmentioned possible accommodations.

Taylor, 184 F.3d at 317-18.

Given the legislative history discussed above, it seems

clear that, if an employer is unwilling to exert any effort to

participate in the “interactive process,” then that employer

must be held liable. Without any incentive to do so, the

constructs of the “interactive process” ring hollow and

provide little more than an aspirational, yet irrelevant

model of what should be done.

CONCLUSION

The Court of Appeals’ decision establishing that

evidence of an employee’s perceived bad attitude is rele-

vant to the determination of that employee’s “qualified

individual” status cannot be reconciled with statutory and

regulatory language, legislative history, nor is it consistent

with related case law regarding the “qualified individual”

analysis. Without review by this Court, the decision

potentially changes disabled employees’ burdens of proofs

and may spawn additional precedent that is plainly

contrary to the spirit and intent of the ADA. Interpreta-

tion of related federal anti-discriminatory statutes is also

implicated by the Seventh Circuit’s analysis regarding a

“qualified individual” and provides additional impetus for

review here.

In addition, given the split of authority among the

jurisdictions as to what triggers the “interactive process”

and the consequences for failing to engage in the process

at all, it is imperative that this Court provide guidance on

this point. Doing so would eliminate current confusion and

disagreement among the Circuits and ensure uniformity

on these points across the country.

DATED this 22nd day of September, 2005.

Respectfully submitted,

FLYNN, GASKINS & BENNETT, LLP

SONIA MILLER-VAN OORT

333 South 7th Street

2900 Accenture Tower

Minneapolis, Minnesota 55402

Phone: (612) 333-9500

Fax: (612) 333-9579

Email: smiller@flynngaskins.com

Scott C. LABARRE

LABARRE LAW OFFICES, P.C.

1660 South Albion, Suite 918

Denver, Colorado 80222

Phone: (303) 504-5979

Fax: (303) 757-3640

Email: slabarre@labarrelaw.com

Attorneys for Petitioner

Paul S. Hammel

App. 1

In the

United States Court of Appeals

For the Seventh Circuit

Nos. 03-3578 & 03-3687

PAUL S. HAMMEL,

Plaintiff-Appellant, Cross-Appellee,

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

previously been adjudged legally blind, began his employ-

ment as a general laborer at the Eau Galle Cheese Factory

(“EGC”), in Durand, Wisconsin, on January 8, 2000, and

was discharged 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 U.S.C. §§ 12111 et seg. After a bench trial, the district

App. 2

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,’ is without any sight in his right eye, retains only

gun-barrel vision’ in his left eye and thus is considered

legally blind. Jd. 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

* 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).

* “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 .jspzQzpgzEzzSzppdocs

zSzuszSzcommonzSzdorlandszSzdorlandzSzdmd_v_10zPzhtm; see Mid-

America Eye Center, Glaucoma, at http://www.midamericaeye.com/

surgeries/glaucoma.htm! (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 DICTIONARY,

available at http://www jkicompany.com/a.htm) (last updated May 21,

2001). However, “when due to organic causes such as glaucoma .. . the

[vision] field expands at increasing distance.” Mid-America Eye Center,

Glaucoma, at http:/Awww.midamericaeye.com/surgeries/glaucoma. html

(last updated April 15, 2004). In Hammel’s case, he described having

“no peripheral 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.”

App. 3

training has been able to secure work performing various

jobs on a temporary basis.

In January.2000, Hammel applied for a position as a

general laborer with the defendant, Eau Galle Cheese

Factory in Durand, Wisconsin, and was granted an inter-

view with EGC’s business manager, Ron Hemmy. /d. at *5.

During the interview Hammel related that he suffered

from glaucoma and advised his interviewer of the limita-

tions caused by his disability. Jd. 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 accommodation. Hemmy agreed to

hire him on a trial basis and informed him that his em-

ployment would be conditional and subject to “a proba-

tionary 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 coworkers 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 produces, and while doing so they are required to

perform a variety of tasks at EGC’s factory in two separate

work areas; the “make room” and the “brine room.” The

employees are expected to perform the tasks assigned in a

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

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

App. 4

rapid and efficient manner, while working in close quar-

ters side-by-side.

According to his supervisors, John Anibas, Dan

Simpson, and Doug Smith, Hammel had problems per-

forming 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 product 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 te hang over the edge causing a portion of

the product to be wasted and drop to the floor. In addition,

the cheese wheels had te be stamped with the production

date in order that they could be tracked in case of ccn-

tamination. 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. Jd. 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. Jd. Anibas observed

that, in general, Hammel also “worked too slowly at his

App. 5

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

perform 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 “posied] a risk to other workers who were at the

same table [considering] [tjhe wheels weigh about 30

pounds or more and could inflict injury if they landed on

someone's hand or foot.” Jd. at *10. On another occasion,

an employee watched Hammel drive an electrically pow-

ered pallet jack bearing a pallet of finished cheese wheels

into the wall, causing the wheels of cheese to fall off." 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

* In the words of a co-worker who observed the incident: “[Hl]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. . . . [hie just

shrugged it off, laughed it off... . I've never seen anybody ram a wall

like that in my life. | mean, he hit the wall at full bore.”

App. 6

Hammel even made a point of showing him bruises on his

legs that were presumably a result of Hammel’s bumping

into things. Jd. 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,’ 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 grind-

ing machine after EGC’s owner, John Buhiman “saw

{Hammel} putting his hands on top and told Simpson not

to [allow him to] operate the grinder anymore.” Jd. at *10-

11. When told by Simpson that “he could no longer operate

the grinder, [Hammel] acted disgusted with Simpson.” Jd.

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

he demonstrated a propensity for arrogance and insubor-

dination. Hammel also continued to make personal phone

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

frequently told by Anibas not to do so and also “walked

away from his post whenever he wanted to go outside for a

cigarette.” 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?” Jd. at *9. Particularly

telling is Hammel’s coworkers description of him as a

“slacker” with a poor attitude.

Hammel’s supervisors initially used remedial meas-

ures in an attempt to address his mounting performance

problems. They warned Hammel that he needed to be

* Which was used to grind and recycle cheese rinds discarded

during processing.

App. 7

more careful, instructed him to speed up or slow down

when performing certain tasks that the job demanded, as

well as time and again ordering him to stop taking unau-

thorized work breaks. In an attempt to accommodate

Hammel and believing that he could more efficiently

operate in the factory 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.” Jd. 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 insubor-

dination, 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]

concern 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

App. 8

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 accommoda-

tions for Hammel, but did not challenge Hammel’s allega-

tion 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 submissions and arguments, the court granted

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

concluding that Hammel had produced sufficient evidence

to demonstrate that his employer was motivated to dis-

charge him because of his disability, based on a statement

from EGC’s owner, Buhlman, in his deposition. See id. at

*19-20.° 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 Ham-

mel 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

* In his deposition testimony, Buhiman was asked why EGC did

not specifically discuss any safety issues with Hammel before discharg-

ing him. Dep. of John Buhiman, at 23-24. In response, Suhlman stated,

“I don’t know what good it would have done.” Jd. Buhiman was then

asked, “And why do you say that sir?” Jd. Buhiman answered, “Well |

can’t make him see. And that was the problem.” /d.

App. 9

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 Ham-

mel’s reckless behavior, refusal to follow job directions and

poor attitude in order to establish that even if discrimina-

tory intent had entered into the decision, Hammel would

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 con-

vince 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

App. 10

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 man-

ager Hemmy, and several of his supervisors and employees

contradicted Hammel’s testimony during the defense’s

case-in-chief by relating Hammel’s record of insubordina-

tion, poor work attitude, reckless, careless and unsafe

work habits, and overall deficiencies in his work perform-

ance.’ Specifically, 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 Anik.us prior

to Hammel’s termination concerning Hammel’s “reckless-

ness and carelessness.” Jd. 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.” Jd. at *12. Another general la-

borer, 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,

" See supra at pp. 3-6.

App. 11

“such as trimming cheese, [Hammel] would turn away and

refuse either to listen or to change his procedure.” Jd.

EGC also introduced evidence of Hammel’s checkered

employment 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. Jd. at *16. The

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 shiortiy before starting at EGC and left “after being

criticized for not working and for failing to follow direc-

tions.” 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. Jd. 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.” Jd. 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.’” Jd. 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

App. 12

the law applicable thereto, granted EGC’s motion conclud-

ing 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 reasoned 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 performing the essential tasks of his

job he was not a qualified 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.” Jd. at *2.

Accordingly, the court specifically concluded 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 tc 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 accommodations despite its

knowledge of [Hammel’s} disability.” Jd.

On appeal, Hammel argues that the court erred when

it found his employer did not discriminate against him in

App. 13

violation of the ADA wher terminating his employmen.

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-

appeals, 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.

Il. Analysis

A. Hammel’s Discriminatory-Discharge Claim

Since the defendant received the benefits of a com-

plete 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 discrimi-

nation occurred itself calls for a finding of fact, and thus

the district court’s decision on that point must be assessed

under the clear error standard.” Jd. (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

App. 14

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

“non-disability-related evidence” of an individual's inabil-

ity to perform up to an employer’s expectations should not

factor into the determination of whether or not an individ-

ual is a “qualified individual with a disability.” We dis-

agree.

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 func-

tions” with or without reasonable accommodation from an

employer. 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 em-

ployment actions if the individual, for reasons unrelated to

his disability (such as a poor work ethic, carelessness, bad

attitude, insubordination 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 Inc., 245 F.3d 969, 972 (7th Cir. 2001);

App. 15

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 Labs., 140 F.3d 668, 674 (7th Cir.

1998); Leffel v. Vailey 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 wal] while operating a pallet

jack, and stuck his hands in a cheese grinder after being

repeatedly warned of the danger. This pattern of hazard-

ous 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 ena“ ‘d 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.

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 continued to make personal phone calls on work time

App. 16

and take unauthorized cigarette breaks. Nor does it

protect an employee 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 Baker-

ies, Inc., 244 F.3d 254, 262 (1st Cir. 2002). Moreover, the

ADA provides no protection for a disabled worker who, like

Hammel, for reasons unrelated to his disability performs

in such an unsatisfactory manner (whether it be for reasons

of carelessness, insubordination or obstinence) 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. Caterpil-

lar, 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 (ist 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"

* Given our discussion on this issue, we need not address Ham-

mel'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.

App. 17

2. The Court's “Qualified Individual” Analy-

sis

Hammel next asserts that the court erred in deter-

mining 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, “[ujnder the ADA,

the employer avoids ail 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 hin to perform 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 persona] telephone calls on

App. 18

work time. In addition, without permission Hammel would

walk outside the factory for cigarette breaks while he was

on duty. Hammel also exhibited insubordinate, arrogant

and obstinate behavior — unrelated to his vision impair-

ment — when 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 machin-

ery 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 dis-

abled one. Many of the reckless acts Hammel was guilty of

committing in the factory 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

inte 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 em-

ployment infractions and no employer should be required

to accept much less ignore or condone this type of irre-

sponsible conduct simply because the employee acting out

also happens to be suffering from a disability within the

meaning of the ADA.

App. 19

Due to Hammel’s careless attitude and inability to

perform 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 litiga-

tion 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 attitudinal problems, but because

his vision impairment “interfered ‘to some extent’ with his

work and caused [EGC] concern for his own safety and the

safety of his coworkers,” a mistake Buhlman acknow!l-

edged in deposition testimony prior to trial. Jd. at *19. The

district court reasoned that these statements were suffi-

cient 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 irrele-

vant 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 expecta-

tions, 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 emp/oyer avoids all

liability if the plaintiff would have been fired because

incapable of performing the essential functions of the job.”

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

decisions motivated by an improper or discriminatory

animus are violative of the ADA, but however improper,

the ADA only protects “qualified individuals”; those who

App. 20

can perform the essential functions of their job with or

without reasonable accommodations. Id. at 485. Thus, it is

Hamme!l’s burden to establish either: (a) that he could

perform the essential functions of his job without accom-

modation; or (b) that reasonable accommodations were

available and could have been impiemented to allow him

to perform the essential functions of his job.

ii. Hammel’s Inability to Perform the

Job without Accommodation

Hamme! had significant difficulties while attempting

to perform the essential duties of a general laborer at the

cheese factory. Further demonstrating Hammel’s inability

to perform the functions of his job in anywhere near a

workmanlike manner was his inability to properly stamp

the cheese wheels, and his likewise incapability of cor-

rectly forming, stacking, transporting the finished cheese

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

business. See supra pp. 856-58. 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

irrelevant ... whether it was [Hammel’s] vision impair-

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

App. 21

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](wJhatever the cause he has demonstrated his inability

to perform the essential tasks of the job ... [and is] not a

qualified individual within the meaning of the [ADA].”

Hammel, 2003 U.S. Dist. LEXIS 11380, at *22-24 (empha-

sis added). As this court has made clear on a number of

occasions, when the evidence demonstrates that an em-

ployee is incapable of performing the job, the employer

need not isolate the disability-related causes for an em-

ployee’s inferior performance from problems that stem from

a poor attitude, insubordination, carelessness, or outright

disregard for the safety of himself 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 termination 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 employee 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 demon-

strated below, Hammel failed to put forth any such ac-

commodations and thus cannot prevail.

App. 22

iii. Hammel’s Failure to Demonstrate

Reasonable Accommodations

At trial Hammel’s vocational expert, Richard Davis,

recommended that EGC could have implemented some

questionable “accommodations” that he believed would

have enabled Hammel to perform the essential functions

of a general laborer. Among these proposed “accommoda-

tions” 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-shuffling” 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 tc the

work environment [by the employer] ... that enable a(n)

... individual with a disability to perform the essential

functions” of a position. 29 C.F.R. § 1630.2(0) (emphasis

added). These “adaptive 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

App. 23

prodding or “accommodation” from his employer. Cf.

Sutton v. United Air Lines, Inc., 527 U.S. 471, 482 (1999)

(“(f a person is taking measures to correct for, or miti-

gate, a physical or mental impairment, the effects of those

measures ... must be taken inte account when judging [a

disability).”); Siefken, 65 F.3d at 667. Thus, we agree with

the trial judge’s determination that these “auaptive

techniques” were not “reasonable accommodations” within

the meaning of the ADA.

Davis proposed additional accommodations that, in

his opinion, EGC supposedly could have undertaken to

facilitate Hammel’s performance of some of the job’s

essential functions. Among these “proposed accommoda-

tions,” Davis suggested that Hammel could learn to stamp

the cheese wheels correctly by having a “co-worker check

on fhis] stamping and teach him how tc hold the stamp to

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

LEXIS 11380, at *15. As the trial judge properly deter-

mined, 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 neces-

sitate the enlistment of another employee to assist an ADA

claimant in performing the essential functions of his job.

* 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 slowdowns in the production pace Hammel’s

use of a manual pallet jack could cause. See Hoffman, 256 F.3d at 573.

App. 24

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 accommodate 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 accommodations exist which allow them

to perform a job as would any other employee. Accommo-

dations which require special dispensations and preferen-

tial treatment are not reasonable under the ADA, thus

Davis’s recommendation that Hamme) be given special

training and provided with a person to “check” up on him

does not qualify as a reasonable accommodation.

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

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 antithetical and

App. 25

unreasonable to propose that based on verbal cues Ham-

mel could be prevented from colliding with walls, equip-

ment and other employees near the production line on the

busy work floor.

What’s more, Hammel’s proffered accommodations

address 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 pro-

posed measures 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 flipping the cheeses. In Miiler v. Illinois

Dept. of Corrections, this court addressed a similar situa-

tion 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. Allegedly, 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.” Jd. We upheld the

district court’s conclusion that the guard was not a “quali-

fied person” within the meaning 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 requirements of

the position. Jd. In turn we rejected her contention that

she should have been allowed to rotate between the two

furictions which she could perform because “the reason for

having multiple able workers who rotate through the

App. 26

different positions is to be able to respond to unexpected

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

Miller wes 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

vocational expert failed to recommend to this court rea-

sonable accommodations that would allow him to perform

the essential 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 “/njo 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 man-

ager 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

App. 27

that EGC did not discriminate against Hammel because of

his disability when it terminated him.”

B. Alleged Evidentiary Errors by the District

Court

Hammel also argues that he is entitled to a new trial

because 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 em-

ployers on the subject of his poor attitude and work ethic.

We review alleged evidentiary 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. Kammel’s Expert Witness Report

Hammel contends that the trial judge improperly

restricted the testimony of his vocationa)] expert, Richard

Davis. The judge restricted Davis from testifying to the

* Because Hammel failed to demonstrate the existence c! a

reasonable accommodation and because Hammel is not a “qualified

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

EGC should be liable for failing to accommodate his disability by not

engaging in an “interactive process” to deterinine if any reasonable

accommodations existed. Mays v. Principi, 301 F.3d 866, 871 (7th Cir.

2002); see also Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560,

563-64 (7th Cir. 1996). We note only that EGC did attempt to accommo-

date Hammel, by shifting his duties and keeping him exclusively in the

“make rcom.” See Hammel, 2003 U.S. Dist. LEXIS 11380, at *26.

App. 28

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.

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)(2XC); 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 manda-

tory” 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 dis-

close his expert witness’s report before trial and thus

failed to comply with Rule 26(a)(2C) 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

App. 29

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

leaving EGC; and 2) testimony of one of his former em-

ployers 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 disclose the evidence prior

to trial and properly allowed EGC to present it.

In accordance with Fed. R. Civ. P. 26(aX 1A) & (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)." 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.” 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

” 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.

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

time of termination, lost future wages and benefits, and compensatory

and punitive damages.

App. 30

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

discretion 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 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 em-

ployment at EGC. Specifically, Hammel was asked if,

while at Schlosser, he: 1) was told that he was not “doing

fhis] job correctly”; 2) “threatened the individuals at

Schlosser Lumber with a disability lawsuit if they fired

fhim)”; and 3) had walked off the job and told his supervi-

sor to “go to hell.” Hammel answered “no” to all three

questions. To impeach Hammel’s answers to these ques-

tions, 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 Til sue you if you fire me.’”

Subsequently, EGC inquired as to how “Hammel’s em-

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

App. 31

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 Ham-

mel’s representations and suggests a lack of honesty; for

Hammel claimed that, while employed at Schlosser Lum-

ber, 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 Ham-

mel’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.” See DeBiasio, 52 F.3d at 688.

C. EGC’s Cross Appeal

In their conditional cross-appeal, EGC urges this

court to reverse the trial court’s grant of summary judg-

ment in Hammel’s favor on the issue of whether Hammel

was terminated on the basis of his disability. However,

because we have resolved this case in EGC’s favor, and

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

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

than impeachment. Hamme! 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 substantive purposes, a scenario

which may not be covered by the exception to the discovery require-

ments of Fed. R. Civ. P. 26 that we have applied herein. Compare

DeBiasio, 52 F.24 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 (ist Cir. 1998).

App. 32

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).

Ill. Conclusion

The decision of the district cout is

AFFIRMED.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

App. 33

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

JUDGMENT — WITH ORAL ARGUMENT

Date: May 11, 2005

BEFORE: Honorable JOEL M. FLAUM, Chief Judge

Honorable JOHN L. COFFEY, Circuit Judge

Honorable TERENCE T. EVANS, Circuit Judge

No. 03-3578

PAUL 8. HAMMEL,

Plaintiff-Appellant

EAU GALLE CHEESE FACTORY,

Defendant-Appellee

Appeal from the United States District Court

for the Western District of Wisconsin

No. 02 C 405, Barbara B. Crab, Chief Judge

The judgment of the District Court is AFFIRMED,

with costs, in accordance with the decision of this court

entered on this date.

(1061-110393)

App. 34

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WISCONSIN

eh hn nn nr ee eee eee eee eee Pee Pe eee ee Pee PP Cee eT Cee eee eee eee ee

PAUL HAMMEL,

Plaintiff,

ss OPINION and ORDER

EAU GALLE CHEESE 02-C-0405-C

FACTORY,

Defendant.

Od ee ee eee eee eee eee ee eee ee Cee eT ee eee ee eee eee)

This civil action for injunctive, declaratory and mone-

tary relief was tried to the court on plaintiff's claim that

defendant terminated him because of his disability, in

violation of the Americans with Disabilities Act, 42 U.S.C.

§§ 12101-12213. The primary issue at trial was whether

plaintiff was a qualified individual under the ADA, that is,

whether he was an individual with a disability who could

perform the essential functions of the job of a general

laborer in a cheese factory, with or without reasonable

accommodation, §12111(8), but the parties adduced

evidence relevant to damages as well.

The question of qualification is complicated by the fact

that it is not clear how much of the difficulty plaintiff had

in performing the essential functions of his job was caused

by his physical disability and how much by other factors,

such as his apparent lack of interest in learning and

performing the essential functions. I conclude that it is not

necessary to sort out the separate causes. Even if plaintiff

had been physically capable of performing the essential

tasks of his job, he was not a qualified individual under

the ADA because of his unwillingness to make the adapta-

tions, take the care or exert the effort necessary to allow

App. 35

him to perform the essential elements of the job. I con-

clude, therefore, that defendant did not discriminate

against plaintiff by firing him because it believed his

disability prevented him from performing his job. I con-

clude also that although defendant failed tc carry out its

obligation to discuss possible work accommodations with

plaintiff, plaintiff failed to show that there were any

accommodations defendant could have made that would

have enabled him to perform adequately. Without such a

showing, defendant is not liable for its failure to broach

the issue of accommodations despite its knowledge of

plaintiff's disability.

From the record and from the evidence adduced at

trial, I find the following facts.

FACTS

Plaintiff Paul Hammel was born in 1950. When he

was seven, he lost an eye to congenital glaucoma. He

adjusted to this loss: he graduated from high school and

worked for a number of years as a construction worker and

as a pipefitter. Around 1990, he noticed some loss of vision

in his remaining eye, which he attributed to needing new

glasses, but was actually the recurrence of his glaucoma.

This time, surgery stopped the progression of the disease

but left him with only a very narrow field of vision in the

central portion of his eye. He is considered legally blind for

the purpose of receiving Social Security disability benefits.

Unlike persons with other kinds of disabilities, persons

who are legally blind remain eligible for disability benefits

even if they engage in substantial gainful employment,

provided that they do not earn more than the maximum

allowed, which in 2003 is $1,330.00 a month. Plaintiff

App. 36

would have earned more than the allowable maximum had

he worked for defendant for a month.

When plaintiff had to stop working as a pipefitter in

1991, he was awarded a disability pension from the

pipefitters’ union. This pension would cease if he lost his

Social Security disability benefits.

Since 1991, plaintiff has worked as a landscaper,

home health care provider and remodeler. In 1995, he

spent eight to nine months at BLIND, Inc., a rehabilita-

tion center, learning techniques to compensate for his loss

of vision. The table below shows his work history from

1992 to date.

1/92-5/98 16months No work or vocational

efforts

5/93-294 9months Wabasha County DAC* (PART TIME)

2/94-4/95 14months No work or vocational

efforts

4/95- 8months BLIND, Inc. -

12/95 vocational program *

1/96-7/96 6 months Application for BEP

benefits withdrawn due to

personal life issues

7/96- 15 months No work or vocational

10/97 efforts

10/97 lmonth Interspace Simulation (PART TIME)

11/15/97- 12months Sears~—stockerthrough (PART TIME)

11/4/98 Ability Building Center *

(Terminated for performance problems)

11/4/98- 6months No work or vocational

4/23/99 efforts

2-00 2months Steve Schlosser (PART TIME)

4/00-8/01 16 months No work history

8/01- 4months Hans Peter —- Lake City (PART TIME)

12/01 (not verified)

12/01- 18 months No work or vocational

6/03 efforts

*BLIND, Inc., DAC and the Ability Building Center are

programs for helping person with impairments improve

their vocational skills or obtain jobs.

During some of the periods shown as “no work or

vocational efforts,” plaintiff worked odd jobs for which he

was paid cash or reduced rent that he did not report on his

income tax returns.

Plaintiff applied for work as a general laborer with

defendant Eau Galle Cheese Factory in Durand, Wiscon-

sin, a maker of hard Italian cheese. He dropped off an

application in late December 1999 or early January 2000,

end was interviewed and hired a few days later. Either at

the time he left his application or during his interview, he

told Ron Hemmy, defendant's business manager, that he

had restricted vision in one eye and no vision at all in the

other. Before Hemmy hired plaintiff, he checked with

defendant's owner, John Buhlman, and two of the three

supervisors in the factory to see whether they would have

any concern about working with a visually impaired

App. 38

employee. All of them were willing to give it a try. Hemmy

told plaintiff he wold have a probationary period of 90

days. He gave plaintiff a check list of his duties, described

their general nature and asked John Anibas, a supervisor,

to help plaintiff become acquainted with the work. Anibas

worked alongside plaintiff. He and plaintiffs co-workers

helped show plaintiff how to perform the essential duties

of a general laborer in a cheese factory.

Defendant employs about 25 people, the majority of

whom are general laborers. Their duties include work in

both the “make room” and the “brine room.” In the make

room, a drain table runs the width of the room. The

employees stand at the table, a few feet apart from each

other, filling round metal forms with handfuls of cheese

curds they take out of the whey in the drain table. (A

“cheesemaker” comes to work shortly after midnight and

begins the process in which the milk separates into curds

and whey.) Running at right angles to the drain table are

press racks. As the employees fill each metal form, they

walk it back to the nearest press rack, stack it and repeat

the procedure until the racks are full. At that point, they

pull a press lever to squeeze excess moisture out of the

forms. Next, the employees remove the pressed forms from

the racks, grab a clean form, take it and the filled one to a

flat topped work table located behind the press racks,

where they set down both forms, trim the rind on the filled

form, turn the cheese out, lay cheesecloth over the new

form and flip the cheese into it. At some point, the newly

filled forms are placed on a pallet that one employee takes

to the brine room for further processing, sometimes with

the help of a hydraulic or motorized pallet jack. Then the

employees clean up the make room and prepare to start

the process all over again for the next of the 10 to 11

App. 39

batches of cheese they produce each work day. All of their

work takes place in a relatively large, open room in which

the employees are moving quickly and almost constantly

from drain table to press rack and back and from press

rack to work table and doing so in close proximity to one

another.

In the brine room, an employee soaks the cheeses in

brine, flips and salts them and then allows them to dry.

When they are completely dry, he wraps them in shrink

wrap and places them on pallets. At some point while the

cheese is in the brine room, an employee stamps each

wheel with the date and batch number.

Because all of the supervisors work alongside the

general laborers in the plant, they are in a position to

observe each employee’s work performance. They are

readily available to listen to any complaints the employees

have about each other. Both Buhlman, the owner, and

Hemmy, the business manager, spend most of their time in

their offices, but Hemmy makes it a practice to walk the

factory floor at least once a day.

John Anibas supervised the brine room. He noticed

that when plaintiff was supposed to turn the cheese

rounds in the brine, he failed to turn all cf them. Anibas

told plaintiff about it the next morning but plaintiff still

missed some. Anibas noticed that plaintiff had difficulty

placing dried cheese wheels on the pallet correctly and did

not always stamp each cheese as he was supposed to. Also,

plaintiff did not keep the stacks of cheese wheels level

when it was necessary to do so. Anibas told plaintiff about

the stamping problem and about his not stacking the

cheese wheels properly and reported the problems to

Hemmy. Anibas never told plaintiff he was at risk of losing

App. 40

his job if his performance did not improve, although he

believed that plaintiff worked too slowly at his tasks to

keep up with the speed of cheese production and that he

talked on the telephone too much. Anibas talked to plain-

tiff about his excessive use of the telephone. Anibas de-

cided that plaintiff would be more successful in the make

room, so he scheduled him to work there on a regular

basis, despite the fact that defendant's practice was to

rotate the general laborers between make room and brine

room.

Doug Smith was a supervisor in the make room. He

never told him that he was doing it improperly. However,

he did observe plaintiff's job performance decline steadily

and his attitude begin to sour. In Smith's view, plaintiff

acted as if he did not care whether he was there or not. He

walked away from his post whenever he wanted to go

outside for a cigarette. When Smith told him to “knock it

off,” plaintiff responded by saying to Smith in an offensive

tone of voice, “Here I am, Dougie, Dougie, what do you

want me to do now?” At that time, Smith considered

terminating plaintiff, but did not. Smith told plaintiff that

he could not be leaving his post all the time and that he

had to use the t iephone less often. After that, plaintiff

never used the same offensive tone of voice to Smith.

However, he continued to take unauthorized cigarette

breaks.

Dan Simpson supervised plaintiff in the make room.

He thought 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

slamming cheese rounds down on the work table where

App. 41

they were transferred to the cheesecloth-lined wheels,

posing a risk to other workers -vho were at the same table.

The wheels weigh about 30 pounds or more and could

inflict injury if they landed on someone's hand or foot.

Simpson observed plaintiff hit his head on the press

rack a couple of times, Plaintiff made a point of showing

Simpson the bruises on his legs, presumably from bump-

ing into things. On several occasions, Simpson saw that

plaintiff put his hands on top of the grinding machine

when he was using it to grind discarded cheese rinds and

told him not to, but plaintiff never stopped. Defendant's

owner, John Buhlman, saw plaintiff putting his hands on

top and told Simpson not to let plaintiff operate the

grinder any more. When Simpson told plaintiff he could no

longer operate the grinder, plaintiff acted disgusted with

Simpson.

Robert Pelke works for defendant as a cheesemaker.

He rented housing to plaintiff and his wife. He was asked

whether he would have any com.:cns if defendant hired

plaintiff. and said he would not, although he does not like

the idea of working with a person for whom he is a land-

lord. He thought that plaintiff worked hard and had a

good attitude during the first week but iat his attitude

changed during the second week. Instead of looking for

ways to help, he spent his time on the phone, going outside

for cigarette breaks or chatting with other employees.

Pelke thought that plaintiff tended to disappear when he

was needed, that he ran into other people and equipment

and that he acted reckless, especially when he was work-

ing with the trimming knife. Pelke talked to Anibas about

what Pelke viewed as plaintiff's recklessness and care-

lessness. When plaintiff was terminated, Pelke assumed it

was for his carelessness and bad attitude.

App. 42

Joseph Sabelko is a general laborer. He showed

plaintiff how to perform certain tasks, such as trimming

cheese and filling the hoops. When Sabelko tried to tell

plaintiff how to do something, such as trimming cheese,

plaintiff would turn away and refuse either to listen or to

change his procedure. Sabelko worked closely with plain-

tiff and was often bumped by him, although Sabelko was

never hurt.

Steven Steiler worked with plaintiff in the make room

when Steller was not involved in cheesemaker duties. He

thought plaintiff's work ethic seemed to go down hill after

his first week. Plaintiff was careless when he brought the

cheese wheels to the work tables and tended to throw

them down on the table before turning them. Steller saw

plaintiff bump into the press rack and observed him drive

the pallet into the wall, causing hoops of cheese to fall off.

He thought that plaintiff turned the cheese well during

the first week and does not think that his subsequent

carelessness was related to his visual impairment. He

heard other employees complain about plaintiff and his

performance and the risks he posed.

No one asked plaintiff whether there were any

changes defendant could make that would help plaintiff

work more effectively. Plaintiff never asked for any

changes or brought up the subject. No one told plaintiff

that his overall performance was substandard, that there

were concerns about his vision or that his work ethic and

attitude were problems. No one told him that he was at

risk of losing his job for any reason.

On January 25 or 26, 2000, Buhlman, Hemmy and the

three supervisors (Simpson, Smith and Anibas) met to

discuss their concerns about plaintiff. All agreed that he

App. 43

should be terminated. On January 27, 2000, Hemmy

called plaintiff into his office and told him that the super-

visors had reported that plaintiff's vision impairment

interfered “to some extent” with his work and caused them

concern for his safety and the safety of his co-workers. At

some later time, Hemmy told plaintiff's wife that plaintiff

had been terminated because of safety concerns. In a

memo dated February 3, 2000, Hemmy wrote that plaintiff

had been terminated for “non disciplinary reasons.”

Richard Davis is an assistant director for employment

programs at BLIND, Inc., a rehabilitation facility in

Minneapolis, Minnesota. His job involves helping visually

impaired persons find jobs suited to their skills, looking for

job opportunities for clients, talking to potential employers

about jobs, placing persons in jobs and then following up

the employee's job performance. He never saw plaintiff at

work at the defendant cheese factory, but visited the

factory twice and prepared a videotape of its operations.

Defendant never consulted a vocational specialist

about ways of accommodating plaintiff's vision problems.

Had it called on Davis, he would have talked with both

parties, found out what problems they were having and

then tried to build a common level of understanding. As

accommodations, he would have suggested that plaintiff

not use the power pallet until he became familiar with its

use and the layout of the plant. He would have suggested

to plaintiff that he put his hands in front of him as he

familiarized himself with the press rack so as to avoid

bumping his head or shins on the rack. He would have

recommended to plaintiff that he call out something like,

“Behind you,” to avoid bumping into his co-workers, that

he run his hands up and down the stacks of cheese wheels

to make sure that they were in proper order and that,

App. 44

when he was turning a cheese wheel, place his right hand

on top of the wheel and his left hand on the bottom and

then flip the wheel. That way, he would know when his

hands were reversed that the cheese wheel was upside

down.

Davis would have suggested to defendant that a

supervisor or co-worker check on plaintiff's stamping and

teach him how to hold the stamp to make sure that it

printed, that the factory not leave hoses out in the walk-

ways or, if it did, announce the fact, and that plaintiff

should have been encouraged to slow down when walking

so as to avoid bumping into people. He believes that these

tiff’s work problems. Davis believed that plaintiff's job

with defendant was well within his abilities and that it

was a safe working environment for him.

When plaintiff filled out his application for defendant,

he did not disclose all of the jobs he had held during the

preceding 23 years. Instead, he summarized his work

history to make it appear that he had held just four jobs

and that he had been employed consistently since March

i977. For example, he listed Fisk Enterprises as his

employer for the period June 1993 through September

1997. In fact, as he testified, this was a mistake; he had

worked for Fisk from 1996 to 1997 only. He did not list the

job at Schlosser Lumber that he left in December 1999

after being criticized for not working and for failing to

follew directions. He omitted the period during which he

was in an addiction program; he did not indicate that his

job at Sears had been part-time only; and he listed his job

at Ability Building Center as lasting eleven months when

he had worked there only six months.

App. 45

Plaintiff testified that from Nove.cber 2001 to July

2002, he had lived with his parents and helped to take

care of his father and received no compensation for this

work. He did not mention that his brother had written him

a check for $5000 as a gift for taking care of his father.

Michael Berger was plaintiff's supervisor when

plaintiff worked at Schlosser Lumber shortly before taking

the job with defendant. He found it difficult to work with

plaintiff. Although he explained to plaintiff a number of

times what he was doing wrong when he was supposed to

pile certain sized boards in certain piles, plaintiff failed to

do his work properly. When Berger expressed any criti-

cism, plaintiff's response was to become upset. On one

occasion, when Berger told plaintiff he had not done the

sorting correctly, plaintiff pulled out his false eye, showed

it to Berger and told him, “You can't fire me, I'm disabled.

I'll sue you.” On the last day that plaintiff worked for

Schlosser Lumber, he stood around and refused to do any

work. Berger told him to get started; plaintiff unleashed a

string of expletives and walked off the job.

OPINION

The Americans with Disabilities Act prohibits em-

ployment discrimination against a qualified individual

with a disability because of the disability. 42 U.S.C.

§ 12112. To prove a violation of the act, a plaintiff must

show that he is a person with a disability, that his em-

ployer was aware of his disability, that he is a qualified

person, capable of performing the essential functions of

the job, with or without accommodation, and that his

employer fired him because of his disability. Foster v.

Arthur Andersen, LLP, 168 F.3d 1029, 1032 (7th Cir.

App. 46

1999). In an order entered before trial, addressing the

parties’ cross motions for suminary judgment, | found as a

matter of law that plaintiff was an individual with a

disability (he is legally blind), that defendant was aware of

his disability and that defendant fired plaintiff because of

his disability. I left open the question of plaintiff’s qualifi-

cations for the job. Also, I determined that no reasonable

jury could find in favor of defendant on its affirmative

defense that plaintiff posed a direct threat at the time he

was terminated.

Days before the trial began, defendant moved for

reconsideration of the summary judgment order, arguing

that it had been premature for the court to find that

plaintiff had been fired because of his disability when

numerous factual issues existed with respect to the ade-

quacy of plaintiff's job performance and whether that

performance wet defendant's legitimate expectations.

Defendant asserted that evidence developed after entry of

the order on summary judgment would establish that

defendant did not base its decision to fire plaintiff on his

disability, or at least solely on his disability. Rather, it

contended, the decision was based on plaintiff's reckless

behavior, refusal to follow job directions and bad attitude.

Defendant asked for an opportunity to prove the real

reason for plaintiffs firing or, alternatively, to show that

even if discriminatory intent had entered into the decision,

defendant would have fired plaintiff regardless of his

vision problems. In addition, defendant pointed out that it

was plaintiff's obligation to show why there was no

inconsistency between his claim that he is a fully qualified

individual under the ADA and his receipt of full Social

Security disability benefits.

App. 47

I denied defendant's motion for reconsideration on two

grounds. First, it was untimely. The order on the parties’

motion for summary judgment was entered on April 15,

2003, but the motion for reconsideration was not filed

until June 6, 2003, two working days before the start of

trial. Second, the motion rested on evidence that should

have been developed before defendant filed its motion for

summary judgmert. 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 events.” Schacht v. Wisconsin Dept. of Correc-

tions, 175 F.3d 497, 504 (7th Cir. 1999).

When defendant moved for summary judgment, it

failed to show the existence of any dispute about the

reasons for plaintiff's termination. The undisputed facts

established that defendant fired him because its decision

makers believed he could not see we)! enough to be a safe

and productive employee. Defendant's business manager

told plaintiff this was why he was being fired; he told

plaintiff's wife that the termination was for safety reasons;

and in a letter he wrote concerning plaintiff's eligibility

for unemployment benefits, he said it was for “non disci-

plinary reasons.” Defendant's owner testified at his deposi-

tion that the “problem” with plaintiff's performance was

that he could not see. Although defendant argued that

plaintiff's vision was not the real reason he was fired, it

proposed no findings of fact to support its argument that

plaintiff had a bad attitude or to show that plaintiff's co-

workers had ever expressed their concerns about plain-

tiff’s attitude to the decision makers who fired plaintiff.

The evidence at trial painted a more complete picture of

plaintiff and of the workplace. First, it showed conclusively

App. 48

that plaintiff had difficulties with work that were not the

result of his poor vision but were related to his poor

attitude, his carelessness ani his unwillingness to accept

criticism and take direction. Second, it showed the actual

work of the cheese factory and the need for care in the

processing of the cheese, both to insure the quality of the

final product and to keep the processing operation running

smoothly and safely. Third, it showed that the workplace

was one in which the supervisors had direct knowledge of

the general laborers and their performance because they

tion I had earlier about the decision makers’ knowledge of

plaintiff's work deficiencies.

The employment provisions of the ADA protect only

“qualified individuals,” that is, individuals with disabili-

ties who are capable of performing the essential functions

of the job they hold, with or without a reasonabie accom-

modation. 42 U.S.C. § 12112 and § 12111(8). The mix of

plaintiff's poor work ethic and his vision impairment

complicated defendant’s evaluation of plaintiff’s work

skills. Defendant was dealing with an employee who might

have been physically capable of performing the tasks that

make up the job of general laborer in a cheese factory had

he been motivated to do so. Without the necessary motiva-

tion and willingness to accept instruction and direction,

however, he was not capable of performing the essential

functions of the job, with or without a reasonable accom-

modation. The net effect was that plaintiff was not a

qualified individual within the terms of the act.

From an employer's standpoint, it makes little differ-

ence whether a disabled employee is unable to perform the

essential tasks of his job because of a physical or mental

disability or is unwilling to do so. In either case, the result

App. 49

is the same. The employee cannot perform the essential

elements of his job. In this respect, plaintiff’s situation is

like that of the plaintiff patrol officer in Siefken v. Village

of Arlington Heights, 65 F.3d 664 (7th Cir. 1995), who was

fired because he failed to monitor his diabetic condition

and, probably as a result, experienced a disorienting

reaction during which he drove at high rates of speed

through residential neighborhoods. In affirming the

district court’s dismissal of the action, the court of appeals

observed that the village had hired Siefken knowing he

was diabetic; “apparently, it believed that Siefken could

monitor his condition sufficiently to allow him to perform

the duties of a patrol officer”; and it fired bim “only when

he proved [the village] wrong.” Id. at 666. In terminating

Siefken, the village relied on his failure to <eep himself

functional. It is possible that Siefken could not have

monitored himself any more closely than he did; not all

diabetic reactions are predictable and not all diabetic

conditions are controllable, but this was not determina-

tive. Whether Siefken was careless or careful, the fact that

_ the reaction occurred was proof that he was not qualified

to perform the duties of a patrol officer.

Siefken demonstrates that it is irrelevant whether an

employer terminates an employee because it believes his

disability disqualifies him from working safely and effi-

ciently or because it believes that the employee is unwill-

ing to exert the effort needed to perform the tasks despite

his impairment. In Siefken’s case, it was irrelevant to the

village whether his diabetes was uncontrollable or

whether he had failed to do whatever was necessary to

keep it under control. In either event, Siefken had demon-

strated that he was unable to perform his job in a way that

met defendant's reasonable expectations. In a similar

App. 50

fashion, it was irrelevant to defendant whether it was

plaintiff’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, to fail to

turn and stack the cheese properly or to slam the cheese

rounds down on the table. Whatever the cause, plaintiff

demonstrated his inability to perform the essential tasks

of his job in a way that met defendant's reasonable exper-

tations.

Plaintiff argues that defendant never gave him a fair

chance to show his ability to perform his job properly

because it never initiated any interactive discussion about

possible accommodations. It is undisputed that plaintiff

never asked for any accommodation but, as I noted in the

order denying defendant's motion for summary judgment,

defendant never told plaintiff he was not meeting its

expectations. An employer has an obligation to bring up

the matter of accommodations once it knows about an

impairment and observes that the impaired employee is

having difficulty performing some tasks correctly, Beck v.

University of Wisconsin Board of Regents, 75 F.3d 1130,

1134 (7th Cir. 1996) (employee begins accommodation

process by informing employer of disability; when em-

ployer knows of disability, its “liability is triggered for

failure to provide accommodations”). Defendant’s failure to

open up the subject does not mean that it is liable to

plaintiff. Plaintiff must still show that the outcome of the

process would have made a difference, that is, that ac-

commodations existed that could have enabled the em-

ployee to perform his job safely and effoctively. Mays v.

Principi, 301 F.3d 866, 870 (7th Cir, 2002). In this case,

with two exceptions, the only “accommodations” plaintiff’s

expert identified relate to adaptive measures that plaintiff

App. 51

could have utilized without any discussion with defendant.

He could have used his hands to insure that the cheeses

were flipped and stacked properly; he could have called

out to other employees that he was behind them; and he

could have familiarized himself with the press rack by

holding out his hands in from of him.

The only suggested accommodations that relate to

defendant deal with the hose on the floor and the stamp-

ing process. Plaintiff’s expert testified that a hose on the

floor could be a danger to any empioyee, sighted or not,

and suggested that whenever a hose was left on the floor,

an employee should cal] out to warn the others. However,

he agreed that plaintiff could have avoided the hose by

shuffling his feet as he walked. As to the stamping process,

the expert’s suggestion involves close supervision and

direction, at least at first, to teach plaintiff just how to

hold the stamp to obtain a clear print on every cheese. It

does not address the problem of insuring that every cheese

round carries a legible stamp. Given the critical impor-

tance of the stamp, it mignt be necessary for another

employee to check each round to make sure that the stamp

worked. Courts have been loath to require accommoda-

tions that involve the use of another employee to do part of

an ADA claimant’s job. See, e.g., Peters v. City of Mauston,

311 F.3d 835, 845-46 (7th Cir. 2002) (request for accommo-

dation unreasonable if ic requires another person to

perform an essential function of job) (citing, inter alia,

Hanson v. Henderson, 233 F.3d 521, 523-24 (7th Cir. 2000;

Cochrum v. Old Ben Coal Co., 10 F.3d 908, 912 (7th Cir.

1996)). Defendant dealt with the problem by keeping

plaintiff in the make room, where stamping was not part

of the job. Although that was a unilateral decision and not

the result of any discussion between the parties, it relieved

App. 52

plaintiff of the need to purform one task with which he was

having trouble. The fact is that no accommodation would

make a difference for an employee unwilling to exercise

care, accept instruction or take responsibility for getting

his work done properly. Like the plaintiff in Siefken, 65

F.3d 664, plaintiff could have taken responsibility for his

disability. He could have used adaptive measures like

those his expert described and exercised more care in

handling his tasks. The slamming or dropping of the

cheese rounds is a good example. It does not require sight

or any special accommodation to set an object down on a

table carefully. Anyone can assess the top of a table with

his body as he stands against it and then lower the object

down to that level. Plaintiff sabotaged his own chances

because of his refusal to follow directions, shoulder his

share of the workload and perform his assigned tasks

carefully.

As a good management practice, defendant's business

manager or one of plaintiff’s direct supervisors should

have taken plaintiff aside early in the second week when

his work performance began to deteriorate and spoken

frankly to him about what he would need to do in order to

keep his job. Employees deserve this kind of candor and

direction. Defendant’s business manage” should have told

plaintiff exactly why he was being fired rather than to

sugar coat the news. However, neither of these failings

make defendant liable to plaintiff under the ADA. To

establish such liability, plaintiff must prove that he was

qualified to perform the essential functions of the job of

general laborer in the cheese factory, with or without

accommodations, but that defendant fired him anyway,

simply because of his disability. Plaintiff cannot make this

showing. To the contrary, the evidence at trial established

App. 53

that defendant had ample reason for finding that plaintiff

lacked the qualifications to perform the essential functions

of his job, with or without accommodation. He had trouble

keeping up with the production pace; he did not turn, or

stack the cheese properly; he slammed cheese rounds on

the table; he ran the pallet ato the wall; ke ran into his

co-workers at times or bumped them; and he disregarded

his supervisors’ and co-workers’ attempts to instruct him.

Although defendant reached its decision to terminate

plaintiff after a relatively short time, plaintiff’s prior work

history supports defendant’s assessment of his work ethic

and abilities. Plaintiff's experience at Schlosser Lumber

was similar to his experience at the cheese factory. Sears

terminated him for performance problems in 1998.

This conclusion makes it unnecessary to consider the

damages to which plaintiff would be entitled had he

proved that defendant violated the ADA when it termi-

nated him in January 2000. I note however that it is

extremely unlikely that plaintiff could have proved any

damages of any significance. Not only does his work record

show no employment in the previous nine ears lasting

longer than six months but plaintiff would have become

ineligible for both his Social Security and his union dis-

ability pension had he continued to work for defendant.

ORDER

IT IS ORDERED that the clerk of court enter judg-

ment in favor of defendant Eau Galle Cheese Factory and

against plaintiff Paul Hammel on plaintiff’s claim that

defendant terminated him in violation of the Americans

with Disabilities in Employment Act.

App. 54

Entered this 26th day of June, 2003.

BY THE COURT:

/s/ Barbara B. Crabb

BARBARA B. CRABB

District Judge

App. 55

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WISCONSIN

PAUL S. HAMMEL,

Plaintiff, OPINION AND

v. ORDER

EAU GALLE CHEESE FACTORY, _—02.0-405-C

Defendant.

Plaintiff Paul Hammel, who is legally blind, was

terminated by defendant Eau Galle Cheese Factory after

being employed there for approximately three weeks. In

this civil action for monetary, injunctive and declaratory

relief, piaintiff contends that defendant terminated him

because of his disability, in violation of the Americans with

Disabilities Act, 42 U.S.C. §§ 12101-12213, and the Wis-

consin Fair Employment Act, Wis. Stat. §§ 111.31-111.395.

Jurisdiction is present under 28 U.S.C. §§ 1331 and 1367.

Both parties have filed motions for summary judg-

ment. Defendant’s motion will be granted with respect to

plaintiff’s claim under the state fair employment act

because state law requires persons seeking relief under

the statute to present their claims to the Department of

Workforce Development. Wis. Stat. $111.39. After the

department makes its decision, a dissatisfied party must

appeal to the Labor and Industry Review Commission. /d.

Only after the commission has ruled may a party seek

judicial review. Wis. Stat. § 111.395. The record shows that

plaintiff presented his claims initially to the Department

of Workforce Development but voluntarily dismissed them

before the department made its final decision. As a result,

this court does not have subject matter jurisdiction over

App. 56

plaintiff’s state fair employment claim. Bourque v. Wau-

sau Hospital Center, 145 Wis. 2d 589, 427 N.W.2d 433 (Ct.

App. 1988); Bachand v. Connecticut General Life Insurance

Co., 101 Wis. 2d 617, 305 N.W.2d 149 (Ct. App. 1981); see

also Koehn v. Pabst Brewing Co., 763 F.2d 865 (7th Cir.

1985); Mursch v. Van Dorn Co., 627 F. Supp. 1310 (W_D.

Wis. 1986), aff’d, 851 F.2d 990 (7th Cir. 1988). Although

defendant did not raise this issue, subject matter jurisdic-

tion cannot be waived. Weaver v. Hollywood Casino-

Aurora, Inc., 255 F.3d 379, 381 (7th C’r. 2001). Accord-

ingly, this claim must be dismissed.

With respect to plaintiff’s claim under the ADA, the

issues are whether plaintiff is a “qualified individual” ag

defined by the act and whether he posed a “direct threat”

to the health or safety of himself or others at the time he

was terminated. Because I conclude that there is a genu-

ine issue of material fact with respect to whether plaintiff

is a qualified individual, both parties’ motions for sum-

mary judgment will be denied on that issue. However, I

conclude that no reasonable jury could find in favor of

defendant on its affirmative defense that plaintiff pose a

direct threat at the time he was terminated. Accordingly,

plaintiff’s motion for sunmary judgment will be granted

with respect to that issue.

From the parties’ proposed findings of fact and the

record, I find that the following facts are undisputed.

UNDISPUTED FACTS

Plaintiff Paul Hammel has been legally blind since at

least 1991. He has no vision in his right eye and the field

of vision in his left eye is restricted to a 20° corridor. Since

1991, plaintiff has worked as a general laborer for a

App. 57

construction company, a department store and a lumber

company. At these jobs he performed tasks such as unload-

ing delivery trucks, stocking shelves and stacking lumber.

Plaintiff also worked as a maintenance employee and

general aid for the Wabasha County Development

Achievement Center and as a courier supervisor for the

Ability Building Center. Before 2000, plaintiff had never

been denied employment or terminated from employment

because of his visual impairment.

Defendant Eau Galle Cheese Factory is a Wisconsin

corporation that makes hard Italian cheese. Plaintiff

applied for a position with defendant in early 2000. Soon

after, plaintiff met with Ron Henimy, defendant's general

business manager, to discuss an available position for a

“general laborer” at defendant's plant in Durand, Wiscon-

sin. During the discussion, plaintiff tuld Hemmy that he

was legally blind. Plaintiff explained that he has no vision

in his right eye and that the vision in his left eye is very

limited as a result of congenital glaucoma. After speaking

with plaintiff, Hemmy met with the plant supervisors and

asked them whether they believed that a person with

“some vision limitation would have any particular prob-

lems in the work environment.” One of the supervisors

responded, “Well, let’s see if it would work for him.”

However, one supervisor, Dan Simpson, had concerns

about plaintiff's ability to perform the job because of his

vision impairment.

Hemmy called plaintiff on January 7, 2000, to tell him

that he was hired. Plaintiff began work the following day.

He worked in both the “make room” and the “brine room.”

His duties consisted primarily of moving materials from

one place to another. In the make room, he would pick up

and move cheese materials into forms and then onto racks,

App. 58

flip the cheese, trim it with a knife, place the trimmings in

a grinder, move the cheese forms onto a cart and push

them into the brine room, where he would stamp the

cheese, place it in a brine tank, turn and salt the cheese,

take it out of the tank and onto a drying rack and finally

onto pallets. Multiple employees worked in both the make

room and the brine room.

The morning after plaintiff's first day, one of plain-

tiff’s supervisors, John Anibas, noticed that not all the

cheese had been flipped, some cheeses were hanging off

the edges of the carts and some of them had been mis-

stamped. Anibas told plaintiff that if he had a problem, he

should take his time so that the job was done correctly. On

plaintiff's second day, Anibas instructed plaintiff on how

to flip the cheese and began pulling plaintiff away from his

duties in the make room. On plaintiff's third or fourth day,

Anibas said to plaintiff, “We've got to be careful.”

After a few days, Simpson decided to take plaintiff out

of the mike room and limit his tasks to the brine room,

where there is less “commotion and traffic.” While plaintiff

was working in the brine room, Anibas told Hemmy that

plaintiff was having some problems with piling cheese

wheels on pallets. Anibas sent plaintiff back to work in the

make room when he concluded that plaintiff was not

performing successfully in the brine room. When plaintiff

returned to the make room, Simpson assigned him the

tasks of grinding cheese rinds and greasing the cheese

whee's. Simpson does not believe that plaintiff did a good

job at greasing the wheels, but he does not remember why.

Simpson was concerned about the way plaintiff put rinds

into the grinder. Simpson believed that plaintiff pushed his

hands too far into the machine, creating a risk he would get

his hands stuck. When John Buhiman, defendant's owner,

App. 59

saw the way plaintiff used the grinder, he told Simpson to

take plaintiff off that machine.

The factory is not a gentle environment. Plaintiff

frequently stumbled, bumped into other employees and

carts, bumped his head on carts and tripped over hoses. At

least once, plaintiff scraped his knuckles on equipment.

Other employees bumped into each other in order to avoid

ming knife outward instead of inward and once saw him

run a pallet jack into the wall. The employee reported the

incident to his supervisors. Several employees, including

Mikey Meixner, Robert Pelke and Steve Seller came to

Simpson, telling him that they did not want to work next

to plaintiff. Joe Sabelko, another employee, told his super-

visors that he was concerned that plaintiff could not do his

work safely. Plaintiff never injured one of his co-workers.

No one informed plaintiff that he was doing a poor job

or that he would be terminated if his performance did not

improve. Neither Hemmy nor Douglas Smith (another

supervisor) discussed with plaintiff a concern that plaintiff

might hurt himself or other employees. No one at Eau

Galle asked plaintiff or someone outside the company

whether there were any accommodations that would assist

plaintiff in performing his job or in making it safer. Smith

believed that other people were talking to plaintiff about

these issues. Hemmy, Simpson and Anibas did not speak

with plaintiff because they believed that there was no way

that they could accommodate plaintiff. Simpson believed

that plaintiff could not be accommodated because Simpson

could not change plaintiff’s working environment. Buhlman

never discussed possible accommodations with plaintiff

because he could not “make [plaintiff] see” and “that was

the problem.” None of the supervisors or managers at Eau

App. 60

Galle had experience working with blind people. If any of

them had approached plaintiff about his disability inter-

fering with his job, plaintiff could have contacted an

agency for the blind that could assist in determining an

appropriate accommodation.

On January 25 or 26, 2000, Buhlman, Hemmy, Simp-

son, Smith and Anibas had a meeting to discuss the

concerns they had about plaintiff. During the meeting,

they decided to terminate plaintiff. The following day,

Hemmy called plaintiff into his office and told him that his

supervisors had reported that his vision impairment

interfered “to some extent” with his work and that they

were concerned for his safety and the safety of other

workers. During a later meeting, Hemmy told plaintiff’s

spouse that plaintiff had been terminated because of

safety concerns. In a memo dated, February 3, 2000,

Hemmy wrote that plaintiff had been terminated for “non

disciplinary reasons.”

OPINION

The Americans with Disabilities Act prohibits employ-

ers from discriminating against “a qualified individual

with a disability because of the disability of such individ-

ual.” 42 U.S.C. § 12112(a). A “qualified individual” is one

who both possesses the prerequisites for the position, such

as skills and experience. and can perform “the essential

functions” of the job, w «“ ». without a “reasonable accom-

modation.” 42 U.S.C. §1 °.1(8); Weiler v. dousehold Finance

Corp., 101 F.3d 519, 524 ( /th Cir. 1996) (citing 29 C.F.R. app.

§ 1630.2(m)). An employer’s failure to provide a reasonable

accommodation to a qualified individual constitutes dis-

crimination under the act unless the accommodation would

App. 61

cause an undue hardship on the employer. 42 U.S.C.

§ 12112(bX5). In addition, an employer may deny or

terminate employment if an individual poses a “direct

threat” to health or safety. 42 U.S.C. § 12113(b).

To prevail on his claim under the ADA, plaintiff must

demonstrate that 1) he is an “individual with a disability’;

2) defendant was aware of his disability; 3) he could

perform the essential functions of the employment position

with or without reasonable accommodation; 4) his disabil-

ity was the reason defendant terminated him. Foster v.

Arthur Andersen, LLP, 168 F.3d 1029, 1032 (7th Cir. 1999).

A. Individual with a Dissbili

The parties agree that plaintiff is an individual with a

disability within the meaning of the ADA and that defen-

dant was eware of plaintiff’s disability. A person meets the

definition of an individual with a disability if he or she (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\A)-(C). It is well-

established that “seeing” is a major life activity. See

Dvorak v. Mostardi Platt Associates, Inc., 289 F.3d 479,

483 (7th Cir. 2002) (quoting 29 C.F.R. § 1630.2(i)); Winfrey

v. City of Chicago, 259 F.3d 610 (7th Cir. 2001). Further,

defendant does not argue that there are corrective meas-

ures that plaintiff could employ to lessen his impairment.

See Sutton v. United Airlines, 527 U.S. 471 (1999)

(whether impairment is “substantially limiting” must be

determined with corrective measures taken into account).

Accordingly, I conclude that plaintiff is an individual with

a disability under § 12102(2)\A).

App. 62

B. Defendant’s Reason for Termination

It is not clear whether defendant disputes that it

- terminated plaintiff “because of” his disability. For the

most part, defendant’s argument focuses only on whether

plaintiff could perform the essential functions of his job in

spite of his disability, whether it made reasonable accom-

modations for him and whether he posed a direct threat to

health or safety. However, in its proposed findings of fact,

defendant refers to its belief that plaintiff “did not take

direction well,” had a “bad attitude” and took unauthor-

ized breaks. Dfts.’ Prop. Find. of Fact {4 53-59, dkt. #23,

at 8-9. In addition, in its reply brief, defendant appears to

argue that the real problem was not plaintiff’s vision

impairment but rather his obstinance, carelessness and

lack of thoroughness.

To the extent that defendant means to argue that it

did not terminate plaintiff because of his disability, I

conclude that it has failed to show that there is a genuine

issue of material fact with respect to this question. Defen-

dant’s owner stated that the “problem” with plaintiff’s

performance was that he could not see. See Dep. of John

Buhiman, dkt. #31, Exh. W, at 23-24. This is direct evi-

dence that plaintiff’s vision impairment was the reason

for his dismissal. See Gorence v. Eagle Food Centers, Inc.,

242 F.3d 759, 762 (7th Cir. 2001) (statement of “I fired

Judy because she was an old woman” is an example of

direct evidence of age discrimination). Although Buhl-

man’s statement does not necessarily demonstrate animus

against plaintiff, the ADA prohibits all scrimination

against qualified individuals with disabilities, regardless

whether the motivation for the decision was prejudice,

stereotypes or unfounded fear. Dadian v. Village of Wil-

mette, 262 F.3d 831, 840 (7th Cir. 2001).

App. 63

In an ADA case, once the plaintiff has offered direct

evidence of discriminatory intent, the defendant has the

burden to show that it would have made the same decision

without regard to the plaintiff’s disability. Bekker v.

Humana Health Plan, Inc., 229 F.3d 662, 670 (7th Cir.

2000). Defendant has failed to do this.

Defendant's reply brief includes no citations to its

proposed findings of fact or to the record to support its

argument that deficiencies unrelated to plaintiff’s vision

impairment were the real reason plaintiff was fired-

Furthermore, most of defendant’s proposed facts regarding

plaintiff’s alleged “bad attitude” and other deficiencies are

derived from the affidavits of plaintiff’s co-workers, who

did not participate in the decision to terminate plaintiff.

The opinions that plaintiff’s co-workers had about the

quality of his work are not relevant to determining defen-

dant’s motivation for terminating defendant, unless those

employees communicated their concerns to a decision

maker. See Biolchini v. General Electric Co., 167 F.3d 1151,

1154 (7th Cir. 1999) (views of other employees not relevant

to defendant's intent unless decision was tainted by

employees’ opinions). Defendant proposes no facts that

they did.

According to defendant’s proposed findings of fact,

Smith was the only decision maker who believed that

plaintiff had a negative attitude and took too many

breaks. More important, defendant has pointed to no

evidence showing that Smith expressed his concerns to

any of the other supervisors or that, if he did, their decision

to terminate plaintiff was influenced by those concerns.

Rather, all the available evidence demonstrates that defen-

dant believed that it was plaintiff’s vision impairment and

not some other deficiency that prevented plaintiff from being

App. 64

a successful employee. In addition to Buhlman’s state-

ment, it is undisputed that, at the time defendant termi-

nated plaintiff, Hemmy told him that his disability was

interfering with his work and creating safety concerns.

Hemmy later wrote in a memo that plaintiff had been

terminated for nondisciplinary reasons. Because defen-

dant has offered no evidence to contradict these state-

ments by the decision makers, I find it undisputed that

plaintiff was terminated “because of” his disability.

C. Qualified Individual

Even though defendant’s termination was motivated

by plaintiff’s disability, plaintiff cannot prevail on his

claim unless he shows that he is a “qualified individual”

under the act. Defendant does not dispute that plaintiff

had the necessary skills and experience in order to work

as a general laborer in a cheese factory. Presumably,

defendant would not have hired plaintiff if it did not

believe that plaintiff was qualified. However, defendant

does dispute that plaintiff was able to perform all the

essential functions of his job.

In determining whether a prescribed duty is an

essential function, a court should consider the written job

description, experience of others who have held the posi-

tion and evidence of the judgment of the employer. Basith

v. Cook County, 241 F.3d 919, 927 (7th Cir. 2001) (citing 29

C.F.R. app. § 1630.2(m)). “‘{I)f an employer has a legiti-

mate reason for specifying multiple duties for a particular

job classification, duties the occupant of the position is

expected to rotate through, a disabled employee will not be

qualified for the position unless he can perform enough of

these duties to enable a judgment that he can perform its

App. 65

essential duties.’” Winfrey, 259 F.3d at 616 (quoting Miller

v. Illinois Dept. of Corrections, 107 F.3d 483, 485 (7th Cir.

1997)). Although neither party proposed facts regarding

the job description or experience of other employees, there

is no dispute that the following duties were essential

functions of plaintiff’s job: picking up and moving cheese

materials into forms and then onto racks, flipping the

cheese, trimming it with a knife, placing the trimmings in

a grinder, moving the cheese forms onto a cart and push-

ing them into the brine room, stamping the cheese, placing

it in a brine tank, turning it, salting it, putting the cheese

onto a drying rack and finally onto pallets.

“In ADA cases involving actual disabilities, as opposed

to perceived disabilities or a history of a disability, it is

usually true that the plaintiff cannot perform the essential

functions of the job without some kind of reasonable

accommodation.” Dalton v. Subaru-Isuzu Automotive, Inc.,

141 F.3d 667, 676 (7th Cir. 1998). In this case, however,

plaintiff contends that even without an accommodation, he

is able to perform the essential functions of the job. He

alleges that it is defendant’s stereotypical attitude and

misunderstanding of his disability rather than an actual

inability to perform his job «hat motivated defendant to

fire him. In support, defendant points to his work history

as a general laborer, noting that he has never been termi-

nated because of his disability. See Hoffman v. Caterpiliar,

Inc., 256 F.3d 568, 573 (7th Cir. 2001) (genuine issue of

material fact existed with respect to whether plaintiff was

qualified individual when there was evidence that she

could perform tasks similar to those in dispute). He also

points out that no one at Eau Galle told him that his

vision impairment was causing problems or that he could

be terminated if he did not improve his performance.

App. 66

Defendant does not dispute plaintiff’s successful

employment history. It also does not argue that plaintiff’s

vision impairment is so severe that, as a matter of law, no

one with his disability could perform the job duties pre-

scribed to him. See, e.g., Waggoner v. Olin Corp., 169 F.3d

481, 483-85 (7th Cir. 1999) (emple -e who would miss

work “erratically” because of seizures could not be quali-

fied individual); Sieberns v. Walmart Stores, Inc., 125 F.3d

1019, 1022 (7th Cir. 1997) (employee who was completely

blind conceded that he could not perform essential func-

tions of sales clerk position). Further, although defendant

notes that plaintiff’s supervisors made statements to him

such as “we've got to be careful,” and “take your time,” it

points to no evidence that anyone told plaintiff his per-

formance was inadequate or thet he was in danger of

being terminated if he did not improve. However, defen-

dant is correct that its failure to inform plaintiff that there

was a problem does not necessarily mean that he was in

fact a qualified individual. Defendant argues that plain-

tiff’s work performance during the three weeks he was

employed demonstrated that he could not perform the

essential functions of the job.

In its brief and proposed findings of fact, defendant

alleges that plaintiff “repeatedly” failed to turn all the

cheeses on the cart and in the brine tank, left cheeses

hanging off the edges of carts and failed to stamp the

cheeses or did so improperly. See Dfts.’ Prop. Find. of Fact

G4 15, 17, 18, 21, dkt. #23, at 4. In addition, defer ant

alleges that plaintiff was “unable” to properly stack cheese

onto pallets, causing the stacks to tip over, and that he

was “unable” to “properly” trim the cheeses. Jd. at {{ 20,

22. The problem with these allegations is that they are not

supported by the evidence, at least not to the extent that

App. 67

defendant asserts. In support of its allegation that plain-

tiff “repeatedly” failed to turn and stamp cheeses properly,

defendant cites only the deposition of John Anibas, one of

plaintiff’s supervisors. However, Anibas testified only that

on the morning of plaintiff’s second day, he noticed that

“there was cheese missed being turned, misstamped,

hanging over the edges on these carts.” Dep. of John

Anibas, dkt. #23, Exh. E, at 13. Anibas does not indicate

how much cheese had not been turned or stamped and he

does not say why he believed that it was plaintiff who was

responsible for the problems he observed, as plaintiff was

not the only employee working in the make room. Further,

Anibas also testified that he “pulled [plaintiff] away” from

those duties on his second day. Although Anibas stated

that on the second day he showed plaintiff how to flip the

cheeses, there is no testimony that plaintiff continued to

perform those duties after the instruction or, if he did

continue, that he was still unable to complete them suc-

cessfully after he received instruction. Evidence that

plaintiff may have made mistakes on his first day is not

sufficient to show as a matter of law that plaintiff was

unable to perform his job’s essential functions.

With respect to plaintiff’s alleged failure to turn the

cheeses in the brine tank, defendant cites the deposition of

John Buhlman, defendant’s owner, who testified that

“evidently [plaintiff] missed a lot of them when he turned

them.” Dep. of John Buhlman, dkt. #23, Exh. G, at 18.

He-vever, there is no indication in Bulhman’s testimony

that he directly observed plaintiff failing to turn the

cheese correctly. Rather, Buhlman’s use of the word “evi-

dently” suggests that he is relying on information reported to

him by another, unnamed source. Generally, “[tlestimony

about matters outside [a witness’s] personal knowledge is

App. 68

not admissible and if not admissible at trial neither is it

admissible in an affidavit used to support or resist the

grant of summary judgment.” Visser v. Packer Engineering

Associates, 924 F.2d 655, 659 (7th Cir. 1991); see also

Watson v. Lithonia Lighting, 304 F.3d 749 (7th Cir. 2001)

(affidavit of plaintiff referring to conduct of other employ-

ees not admissible when it did not explain how she learned

about conduct). The personal knowledge requirement

applies to depositions and affidavits equally. Palucki v.

Sears, Roebuck & Co., 879 F.2d 1568, 1572 (7th Cir. 1989).

In the context of determining an employer’s reasons

for terminating an employee, whether the employee

actually was performing deficiently does not matter so

long as the employer honestly believed that he was. Hel-

land v. South Bend Community School Corp., 93 F.3d 327,

330 (7th Cir. 1996). For the purpose of determining

whether an employee is “qualified” under the ADA, how-

ever, the inquiry focuses not on what defendant believed

but on plaintiff’s actual ability to perform. Thus, defen-

dant cannot rely on hearsay testimony to illustrate that

plaintiff is not a qualified individual. Defendant has cited

no other evidence to support its contention regarding the

brine tank.

With respect to the allegation that plaintiff was

“unable to properly trim the cheeses,” plaintiff cites an

affidavit of another employee. See Aff. of Robert J. Pelke,

dkt. #26, at 4 6. However, the employee does not explain

hew he knows that plaintiff did not properly trim cheese

or, equally important, what it was about plaintiff’s tech-

nique that was deficient. Affidavits must be made on

personal knowledge and contain “specific facts” to be

admissible under Fed. R. Civ. P 56(e). See Drake v. Minne-

sota Mining & Manufacturing Co., 134 F.3d 878, 887 (7th

App. 69

Cir. 1998). (“Rule 56 demands something more specific

than the bald assertion of the general truth of a particular

matter(;} rather it requires affidavits that cite specific

concrete facts establishing the existence of the truth of the

matter asserted.”) The employee’s affidavit contains no

specific facts, only a conclusion. Thus, it is not admissible

for the purpose defendant wishes it to be used.

The only remaining contention is that plaintiff im-

properly stacked cheeses, causing them to tip over. In

support, defendant again cites the deposition of Anibas.

Anibas was asked, “Did you ever have a situation where

the pallets were stacked improperly, the pallets that Mr.

Hammel worked on, that you recall?” Anibas responded

equivocally: “Not that he worked on exactly, no. But it was

brought to my attention and pointed [out] to me.” Dep. of

John Anibas, dkt. #23, Exh. E, at 47. The meaning of

Anibas’s statement is not immediately clear. In the first

sentence, Anibas appears to say, “No, there was no situa-

tion in which plaintiff stacked the cheese improperly.”

However, his second sentence seems to suggest that

although he never witnessed plaintiff stacking the cheese

improperly, other employees did and told him about it.

Assuming that the latter interpretation is the correct one,

it does not support defendant’s proposed finding of fact.

First, Anibas does not appear to have personal knowledge

of plaintiff’s performance but instead is relying on infor-

mation of other employees. Even setting aside this prob-

lem, Anibas’s testimony does not support defendant’s

allegation that plaintiff’s stacks tipped over; at most, it

supports an inference that on

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