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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2005
- **Citation:** 546 U.S. 1033

## Text

7

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

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

9

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.

10

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

11

f

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).

12

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

13

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

14

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).

15

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.

16

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.

17

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

18

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.

19

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

20

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

21

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.

22

‘

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

23

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

24

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.

25

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.

26

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.

27

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

28

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

29

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.

S

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

30

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,
v.
EAU GALLE CHEESE FACTORY,
Defendant-Appellee, Cross-Appellant.

Appeals from the United States District Court
for the Western District of Wisconsin
No. 02-C-0405-C — Barbara B. Crabb, Chief Judge.

ARGUED APRIL 1, 2004 — DECIDED May 11, 2005

Before FLAUM, Chief Judge, and COFFEY and EVANS,
Circuit Judges.

CoFFEY, Circuit Judge. Paul Hammel, who had
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
v.
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0249%3A1. Public record. Not legal advice.