Bombard v. Fort Wayne Newspapers, Inc.

Decision Date12 August 1996
Docket NumberNo. 95-2918,95-2918
Citation92 F.3d 560
Parties44 Fed. R. Evid. Serv. 1215, 5 A.D. Cases 1283, 18 A.D.D. 286, 8 NDLR P 249 Peter H. BOMBARD, Plaintiff-Appellant, v. FORT WAYNE NEWSPAPERS, INCORPORATED, Defendant-Appellee.
CourtU.S. Court of Appeals — Seventh Circuit

Christopher C. Myers (argued), Myers & Geisleman, Fort Wayne, IN, for plaintiff-appellant.

John R. Burns, III, Steven L. Jackson (argued), Debra L. Schroeder, Baker & Daniels, Fort Wayne, IN, for defendant-appellee.

Before KANNE, ROVNER, and DIANE P. WOOD, Circuit Judges.

KANNE, Circuit Judge.

Peter Bombard filed a complaint under the Americans with Disabilities Act against his former employer, Fort Wayne Newspapers, Inc., ("FWN") alleging that FWN unlawfully failed to provide him with reasonable accommodation for his mental disability and then unlawfully discriminated against him by terminating him because of that disability. The district court granted summary judgment in favor of FWN. We affirm on the ground that Bombard failed to adduce sufficient evidence to make the necessary showing that he was a "qualified individual with a disability."

I

Peter H. Bombard began working for FWN in May 1986, and during the time relevant to this lawsuit Bombard served FWN as an inside sales representative. In the year prior to March 1994, Bombard began suffering from various illnesses, including severe depression with psychotic features. As a result of his depression, Bombard requested and received a short-term disability leave for several weeks, and he was scheduled to return to work on March 23, 1994.

One week prior to his scheduled return, Bombard knew that he would be unable to come back to work on March 23. On the morning of March 23, Bombard experienced a suicidal episode and was physically and emotionally unable to call his supervisor at FWN to inform her that he would not be returning to work as scheduled.

Bombard's first communication with FWN following his scheduled return date was his phone call to Charles Cammack, an employee in FWN's personnel department, on March 25. Bombard told Cammack that his doctor had released him to work part-time. Cammack responded, "We have already made our decision. And you will be getting a letter." Cammack called Bombard back ten minutes later and told him that FWN had decided to terminate him. Bombard subsequently received a termination letter signed by his supervisor, Greta Lesh, explaining that the reason for his termination was his failure to notify his manager that he would be absent from work. 1 Bombard had previously received a written warning on February 9, 1994, for failing to notify his manager that he would not report to work on February 1 and 2. That letter had warned: "Any future infractions of this nature will result in more severe disciplinary action, up to and including termination."

On October 5, 1994, Bombard filed a complaint against FWN alleging violations of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. 2 His complaint included two legally distinct, although temporally related, claims under the ADA. The first claim was that FWN failed to provide him with reasonable accommodation, as required by 42 U.S.C. § 12112(b)(5), by not allowing him to return to work part-time. The second claim was that FWN's decision to discharge Bombard was premised upon the fact that he suffered from a disability, in violation of § 12112(b)(1).

The district court granted summary judgment on the first claim on the ground that Fort Wayne Newspapers did not breach its obligation to provide Bombard a reasonable accommodation because Bombard did not request an accommodation until after he had been terminated by FWN. The district court granted summary judgment on the second claim on the ground that Bombard had failed to produce sufficient evidence to show that FWN's nondiscriminatory reason for terminating him--his failure to notify his manager that he would be absent--was a pretext. Bombard appeals the summary judgment with regard to both claims.

II

In reviewing a district court's grant of summary judgment, we assess the record de novo and reach our own conclusions regarding law and fact. Thiele v. Norfolk & Western Ry. Co., 68 F.3d 179, 181 (7th Cir.1995). We will not resolve factual disputes or weigh conflicting evidence. We will only determine whether a genuine issue of material fact exists for trial, which is the case where "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). In reaching a conclusion as to the presence of a genuine issue of material fact, we must view the evidence and draw all inferences in a way most favorable to the nonmoving party. Tolentino v. Friedman, 46 F.3d 645, 649 (7th Cir.), cert. denied, 515 U.S. 1160, 115 S.Ct. 2613, 132 L.Ed.2d 856 (1995).

Where there is no genuine issue of material fact, the sole question is whether the moving party is entitled to judgment as a matter of law. If the nonmoving party fails to establish the existence of an element essential to his case, one on which he would bear the burden of proof at trial, summary judgment must be granted to the moving party. Richards v. Combined Ins. Co. of America, 55 F.3d 247, 251 (7th Cir.1995). It is not our function to scour the record in search of evidence to defeat a motion for summary judgment; we rely on the nonmoving party to identify with reasonable particularity the evidence upon which he relies. Id. The evidence relied upon must be competent evidence of a type otherwise admissible at trial. Thus, a party may not rely upon inadmissible hearsay in an affidavit or deposition to oppose a motion for summary judgment. Wigod v. Chicago Mercantile Exch., 981 F.2d 1510, 1518-19 (7th Cir.1992); see also FED. R. CIV. P. 56(e).

In deciding an appeal, we may affirm the district court's grant of summary judgment on a ground other than that relied upon by the district court below, so long as the alternative basis finds adequate support in the record. Meredith v. Allsteel, Inc., 11 F.3d 1354, 1358 (7th Cir.1993).

III

The pertinent part of the ADA provides:

No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.

42 U.S.C. § 12112(a). The same section defines discrimination, in part, as

(5)(A) not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity; or

(B) denying employment opportunities to a job applicant or employee who is an otherwise qualified individual with a disability, if such denial is based on the need of such covered entity to make reasonable accommodation to the physical or mental impairments of the employee or applicant.

42 U.S.C. § 12112(b)(5)(A)-(B). Reasonable accommodation may include such things as job restructuring and part-time or modified work schedules. 42 U.S.C. § 12111(9)(B). Before an employer may be liable for failing to provide an employee with reasonable accommodation, the employer must be aware of the employee's disability. Beck v. University of Wisconsin Bd. of Regents, 75 F.3d 1130, 1134-35 (7th Cir.1996); Hedberg v. Indiana Bell Tel. Co., 47 F.3d 928, 934 (7th Cir.1995). Once an employer's responsibility to provide reasonable accommodation is triggered, the employer must engage with the employee in an "interactive process" to determine the appropriate accommodation under the circumstances. Beck, 75 F.3d at 1135; see also 29 C.F.R. app., § 1630.9. However, we need not consider whether Bombard adduced sufficient evidence that FWN failed to provide reasonable accommodation or discharged him because of his disability. We find merit in FWN's argument raised both below and on appeal that Bombard failed to make the predicate showing that he was a "qualified individual with a disability."

The ADA proscribes discrimination against only "qualified individual[s] with a disability." 42 U.S.C. § 12112(a); see also 29 C.F.R. § 1630.4; 29 C.F.R. app. § 1630.9. Unlawful discrimination under the ADA includes both discriminatory discharge and the failure to provide reasonable accommodation. 42 U.S.C. § 12112(a), (b)(5)(A). In order to protest such activity, the plaintiff must meet the definition of a "qualified individual with a disability."

A "qualified individual with a disability" is defined, in relevant part, as: "an individual with a disability who, with or...

To continue reading

Request your trial
558 cases
  • Dorchy v. Washington Metro. Area Transit Authority
    • United States
    • U.S. District Court — District of Columbia
    • February 25, 1999
    ...accommodation." Barnett, 157 F.3d at 749; see Willis v. Conopco, Inc., 108 F.3d 282, 285 (11th Cir.1997); Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 563-64 (7th Cir. 1996); Monette v. Electronic Data Sys. Corp., 90 F.3d 1173, 1183 (6th Cir.1996). Under the statute, an employer is ......
  • Gillespie v. City of Indianapolis
    • United States
    • U.S. District Court — Southern District of Indiana
    • June 5, 1998
    ...Thus, we hold that Gillespie has abandoned his ex post facto and bill of attainder claims (see Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir. 1996) (plaintiff abandoned claim after failing to respond to argument in motion for summary judgment)), undoubtedly because the c......
  • Hawkins v. Trustees of Indiana University
    • United States
    • U.S. District Court — Southern District of Indiana
    • November 3, 1999
    ...qualified employee includes both discriminatory discharge and failure to make a reasonable accommodation. Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 563 (7th Cir.1996). Determining which employees are protected by this federal law requires a positive response to two questions. See......
  • U.S. v. Southern Indiana Gas and Elec. Co.
    • United States
    • U.S. District Court — Southern District of Indiana
    • February 13, 2003
    ...rather, the nonmoving party bears the responsibility of identifying the evidence upon which she relies. See Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir.1996). When the moving party has met the standard of Rule 56, summary judgment is mandatory. See Celotex, 477 U.S. at......
  • Request a trial to view additional results
5 books & journal articles
  • Evidence
    • United States
    • James Publishing Practical Law Books Trial Objections
    • May 5, 2022
    ...to be admissible under the hearsay exception for statements made for medical diagnosis or treatment. Bombard v. Fort Wayne Newspapers , 92 F.3d 560, 564 (7th Cir. 1996). In a disability discrimination case, statement in Plaintiff’s affidavit that a doctor told him to work part-time and to g......
  • Summary Judgment Practice and Procedure
    • United States
    • James Publishing Practical Law Books Litigating Employment Discrimination Cases. Volume 1-2 Volume 2 - Practice
    • May 1, 2023
    ...to perform a search, unassisted by counsel, through the entire record, to look for such evidence.”); Bombard v. Fort Wayne Newspapers , 92 F.3d 560, 562 (7th Cir. 1996) (“It is not our function to scour the record in search of evidence to defeat a motion for summary judgment; we rely on the......
  • Summary Judgment
    • United States
    • James Publishing Practical Law Books Employment Evidence
    • April 1, 2022
    ...with hearsay. Patel v. Allstate Insurance Co ., 105 F.3d 365, 368 n.1 (7th Cir. 1997), citing Bombard v. Fort Wayne Newspapers, Inc ., 92 F.3d 560, 562 (7th Cir. 1996)(“a party may not rely upon inadmissible hearsay in an affidavit or deposition to oppose a motion for summary judgment.”). S......
  • § 33.08 Medical Treatment-Diagnosis: FRE 803(4)
    • United States
    • Carolina Academic Press Understanding Evidence (2018) Title Chapter 33 Hearsay Exceptions
    • Invalid date
    ...the treating physician—are not admissible pursuant to the Fed.R.Evid. 803(4) hearsay exception."); Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 564 (7th Cir. 1996) ("Rule 803(4) does not purport to except, nor can it reasonably be interpreted as excepting, statements by the person p......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT