407 F.3d 852 (7th Cir. 2005), 03-3578, Hammel v. Eau Galle Cheese Factory

Docket Nº:03-3578, 03-3687.
Citation:407 F.3d 852
Party Name:Paul S. HAMMEL, Plaintiff-Appellant, Cross-Appellee, v. EAU GALLE CHEESE FACTORY, Defendant-Appellee, Cross-Appellant.
Case Date:May 11, 2005
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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407 F.3d 852 (7th Cir. 2005)

Paul S. HAMMEL, Plaintiff-Appellant, Cross-Appellee,


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

Nos. 03-3578, 03-3687.

United States Court of Appeals, Seventh Circuit

May 11, 2005

Argued April 1, 2004.

Rehearing En Banc Denied June 24, 2005.

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Scott C. Labarre (argued), Labarre Law Offices, Denver, CO, Sonia Miller-Vanoort, Flynn, Gaskins & Bennett, Minneapolis, MN, for Plaintiff-Appellant and Cross-Appellee.

Carol S. Dittmar (argued), Garvey, Anderson, Johnson, Gabler & Geraci, Eau Claire, WI, for Defendant-Appellee.

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

COFFEY, Circuit Judge.

Paul Hammel, who had previously been adjudged legally blind, began his employment as a general laborer at the Eau Galle Cheese Factory ("EGC"), in Durand, Wisconsin, on January 8, 2000, and was 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 seq. After a bench trial, the district court ruled that

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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 WL 21665133, at *6, 2003 U.S. Dist. LEXIS 11380, at *2 (W.D. Wis. June 26, 2003). We affirm.

I. Background

Hammel suffers fro congenital glaucoma in both eyes, 1 is without any sight in his right eye, retains only gun-barrel vision 2 in his left eye and thus is considered legally blind. Id. at 2003 WL 21665133, at *6, 2003 U.S. Dist. LEXIS 11380, at *3. To help compensate for his loss of vision, Hammel has received training at vocational schools in the use of adaptive workplace techniques, and with this training has been able to secure work performing various jobs on a temporary basis.

In January 2000, Hammel applied for a position as a general laborer with the defendant, Eau Galle Cheese Factory in Durand, Wisconsin, and was granted an interview with EGC's business manager, Ron Hemmy. Id. at 2003 WL 21665133, at *7, 2003 U.S. Dist. LEXIS 11380, at *5. During the interview Hammel related that he suffered from glaucoma and advised his interviewer of the limitations caused by his disability. Id. After having the job's requirements explained to him, Hammel assured Hemmy that he would be able to perform the necessary tasks without any special accommodation. Hemmy agreed to hire him on a trial basis and informed him that his employment would be conditional and subject to "a probationary period of 90 days." Id. at 2003 WL 21665133, at *2, 2003 U.S. Dist. LEXIS 11380, 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

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room" and the "brine room." 3 The employees are expected to perform the tasks assigned in a rapid and efficient manner, while working in close quarters side-by-side.

According to his supervisors, John Anibas, Dan Simpson, and Doug Smith, Hammel had problems performing many of his duties from day one. For example, they explained that, as part of his duties, Hammel was expected to mold cheese curds into "cheese wheels," and to "turn" or "flip" the wheels in a manner that would ensure that the final 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 to hang over the edge causing a portion of the product to be wasted and drop to the floor. In addition, the cheese wheels had to be stamped with the production date in order that they could be tracked in case of contamination. Anibas noted that Hammel "did not always stamp each cheese" as was instructed, either stamping the cheese illegibly or failing to properly apply the stamp to the finished product. Id. Another example of Hammel's lack of attention or aptitude was evidenced in his repeated difficulty stacking the cheese in a manner so as to prevent them from being damaged by tipping over and falling off the pallet and/or causing a safety hazard. Furthermore his supervisors related that Hammel failed to "keep the stacks of cheese wheels level," resulting in unbalanced pallets that posed the risk of toppling over. Id. Anibas observed that, in general, Hammel also "worked too slowly at his tasks to keep up with the speed of [the] cheese production" line. Id. at 2003 WL 21665133, at *3, 2003 U.S. Dist. LEXIS 11380, 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 "pos[ed] a risk to other workers who were at the same table [considering] [t]he wheels weigh about 30 pounds or more and could inflict injury if they landed on someone's hand or foot." Id. at 2003 WL 21665133, at *4, 2003 U.S. Dist. LEXIS 11380, at *10. On another occasion, an employee watched Hammel drive an electrically powered pallet jack bearing a pallet of finished cheese wheels into the wall, causing the wheels of cheese to fall off. 4

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Id. at 2003 WL 21665133, at *4, 2003 U.S. Dist. LEXIS 11380, at *12. His supervisors on occasion expressed concern and fear that Hammel might be seriously injured by tripping over hoses that were strategically positioned on the factory floor to wash away excess brine. In addition, Simpson frequently observed Hammel banging into the factory machinery (e.g., hitting his head on the press rack) and Hammel even made a point of showing him bruises on his legs that were presumably a result of Hammel's bumping into things. Id. at 2003 WL 21665133, at *3, 2003 U.S. Dist. LEXIS 11380, at *10. Furthermore, in disregard for his safety, Hammel repeatedly placed his hands not only on top of but also inside the grinding machine when using the apparatus, 5 even after having been ordered by Simpson to cease and desist from such a practice. Eventually Simpson was forced to prohibit Hammel from operating the grinding machine after EGC's owner, John Buhlman "saw [Hammel] putting his hands on top and told Simpson not to [allow him to] operate the grinder anymore." Id. at 2003 WL 21665133, at *3-4, 2003 U.S. Dist. LEXIS 11380, at *10-11. When told by Simpson that "he could no longer operate the grinder, [Hammel] acted disgusted with Simpson." Id.

Hammel's run-in with Simpson was not the only time he demonstrated a propensity for arrogance and insubordination. 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?' " Id. at 2003 WL 21665133, at *4, 2003 U.S. Dist. LEXIS 11380, at *9. Particularly telling is Hammel's coworkers description of him as a "slacker" with a poor attitude.

Hammel's supervisors initially used remedial measures in an attempt to address his mounting performance problems. They warned Hammel that he needed to be 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 unauthorized 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." Id. However, even with this accommodation, Hammel's work performance failed to improve and his supervisors eventually decided they had to meet with Hemmy to relay their concerns. Specifically, they informed Hemmy of Hammel's work problems, such as his insubordination, poor attitude and work ethic, and related their concerns about his carelessness. After discussing the matter, Hemmy decided that the only course of action remaining was to terminate him. Hemmy later met with Hammel and informed him that he was being discharged due to his limited vision and the fact that it "interfered 'to some extent' with his work and caused [management] concern for his safety and the safety of his coworkers." Id. at 2003 WL 21665133, at *5, 2003 U.S. Dist. LEXIS 11380, at *13.


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