Furnish v. SVI Systems, Incorp., 99-2431

• Decision Date: 22 October 2001
• Docket Number: No. 99-2431,99-2431
• Citation: 270 F.3d 445
• Parties: (7th Cir. 2001) Kent Furnish, Plaintiff-Appellant, v. SVI Systems, Incorporated, Defendant-Appellee
• Court: U.S. Court of Appeals — Seventh Circuit

Page 445

270 F.3d 445 (7th Cir. 2001)

Kent Furnish, Plaintiff-Appellant, v. SVI Systems, Incorporated, Defendant-Appellee.

No. 99-2431

United States Court of Appeals For the Seventh Circuit

Argued September 10, 2001

Decided October 22, 2001

Appeal from the United States District Court for the Central District of Illinois. No. 96 C 1581--Joe B. McDade, Chief Judge.

Before Posner, Kanne, and Evans, Circuit Judges.

Kanne, Circuit Judge.

Plaintiff, Kent Furnish, brought a suit against his ex- employer, alleging violations of the Americans with Disabilities Act ("ADA"). 42 U.S.C. § 12101. Defendant, SVI Systems, terminated plaintiff's employment on July 25, 1996, for the stated reason of "unsatisfactory work performance." Plaintiff alleges that he was terminated because he suffered from cirrhosis caused by chronic Hepatitis B. The district court granted summary judgment in favor of defendant on the grounds that plaintiff failed to show that he was disabled under the ADA. We agree with the district court's conclusion that plaintiff was not disabled, and therefore affirm.

I. History

Defendant SVI Systems ("SVI"), based in Peoria, Illinois, provides real time video services to hotels and motels in the eastern and midwestern portions of the United States. SVI salespeople enter into contracts with individual hotels and motels, and then SVI technicians go on- site to install the equipment in the facility. After installation, SVI monitors the equipment from its offices in Peoria.

In January, 1995, plaintiff accepted a position with SVI as Director of Technical Operations. Plaintiff was 44 years old with 23 years' experience in the cable television and transmission systems industry and had a degree inelectrical engineering. Plaintiff was responsible for pre-installation technical work and for installing SVI's video systems in hotels. Plaintiff was also responsible for hiring and training new installers. In September, 1995, Eric Goldberg, plaintiff's supervisor, gave plaintiff a favorable job performance review. Goldberg further recommended that plaintiff receive a 4% raise, rather than the 3% raise that most employees received.

On August 29, 1995, gastroenterologist Dr. Ben Dolin diagnosed plaintiff with chronic Hepatitis B. Dr. Dolin later took a biopsy of plaintiff's liver, and, on January 9, 1996, a pathologist analyzed the tissue sample and concluded that plaintiff suffered from chronic Hepatitis B and severe septal fibrosis suggestive of liver disease. Hepatitis B damages liver cells so that there are fewer cells to perform the liver's detoxification function and to produce glucose. Fibrosis is liver scarring, which affects the liver's ability to perform its blood filtering function.

On January 26, 1996, plaintiff began treating his disease with the drug Interferon. The Interferon treatment caused plaintiff to experience flu-like symptoms such as fatigue, nausea, and achiness. By May, 1996, Dr. Dolin concluded that the Interferon treatment was not working and referred plaintiff to the University of Iowa Medical School for treatment. On June 17, 1996, plaintiff was seen by Dr. Douglas LaBreque, a professor of Internal Medicine and Director of Liver Services at the University of Iowa Medical School. Blood tests taken by Dr. LaBreque that day detected liver enzymes that indicated that plaintiff's liver was functioning normally. Dr. LaBreque testified at his deposition that as of June, 1996, plaintiff's liver functioning was "adequate," meaning that he had enough normal liver cells "to do the job." Dr. LaBreque placed plaintiff on an experimental drug called Lamivudae, and by December, 1997, plaintiff's liver disease was dormant.

In January, 1996, soon after he was diagnosed with Hepatitis B, plaintiff met with his new supervisor, Don Decker, and with Beth Salmon, SVI's president. Plaintiff informed them about his disease and warned them that in the coming months, he may suffer from a failure to sleep, nausea, mood swings, and irritability because of the disease and its treatment. He also explained to them that these same symptoms may require him to miss some work. Soon thereafter, plaintiff's wife, a registered nurse, also informed Salmon that plaintiff may need to miss some work in the future because of his flu-like symptoms and because of doctor appointments. She also told Salmon that she was worried that plaintiff would be unable to travel. At his deposition, however, Dr. LaBreque testified that plaintiff was not under any work or travel restrictions.

In March, 1996, after plaintiff told his supervisor that his health prevented him from traveling to locations far from Peoria in order to complete installations, Decker responded that plaintiff was to do whatever was necessary to complete the jobs. That same month, Decker reprimanded plaintiff for missing a scheduled meeting with an installer. Plaintiff claimed that he missed the meeting because he had vomited and had to go home to rest.

When Decker became plaintiff's supervisor in January, 1996, SVI had hundreds of outstanding installations that needed completion. In order to complete these installations, Decker wanted the installers to complete twelve installations per week. By June 1, 1996, plaintiff had fallen behind on these installations, and, by that time, SVI had contracted with hundreds of additional properties for installations. Because he had fallen behind on these installations, on July 1, 1996, plaintiff was directed to focus solely on pre-installation technical work and was relieved of his duties with respect to installations.

Plaintiff was fired on July 25, 1996. Decker prepared a memorandum memorializing the reasons for plaintiff's discharge, stating that he was being fired for "unsatisfactory work performance." This memorandum listed problems with plaintiff's work performance including: frequent installation failures, failure to reprimand employees or establish controls that would make them accountable, and plaintiff's weak communication skills and lack of organization. Further, the memorandum gave three rationales for plaintiff's termination: 1) plaintiff's current responsibilities did not justify his salary; 2) there were no additional responsibilities that plaintiff had shown an ability to assume; and 3) defendant was not willing to offer plaintiff a reduced salary that matched the duties he was performing. At that time there were still properties that awaited technical attention from plaintiff. Plaintiff admitted that he did not meet Decker's new installation goals, but claimed that the goals were unreasonable, and that his failure to meet the goals resulted from incorrect advance work done by others and from misinformation concerning the installation sites.

On December 18, 1996, plaintiff brought a lawsuit alleging, inter alia, discrimination on the basis of a disability.¹ He brought suit under the ADA, which prohibits discrimination in employment of a "qualified individual with a disability." 42 U.S.C. § 12112(a). On May 17, 1999, the district court entered an order granting summary judgment in favor of SVI. The order concluded that plaintiff was not disabled under the ADA because his disease did not substantially limit a major life activity.

II. Analysis

A. Standard of Review

We review a grant of summary judgment de novo, viewing all of the facts, and drawing all reasonable inferences therefrom, in favor of the nonmoving party. See Cent. States, Southeast and Southwest Areas Pension Fund v. White, 258 F.3d 636, 639 (7th Cir. 2001). Summary judgment should be granted if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Cengr v. Fusibond Piping Sys., Inc., 135 F.3d 445, 450 (7th Cir. 1998) (quoting Fed. R. Civ. P. 56(c)).

B. Was Plaintiff a "Qualified Individual with a Disability?"

The ADA prohibits an employer from "discriminat[ing] against a qualified individual with a disability because of the disability." 42 U.S.C. § 12112(a). A "qualified individual with a disability" is "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position . . . ." Id. § 12111(8). Further, a "disability" means "a physical or mental impairment that substantially limits one or more of the major life activities of such individual."² Id. § 12102(2)(A). Thus, to prevail on his ADA claim, plaintiff must show that (1) he is "disabled"; (2) he is qualified to perform the essential function of the job either with or without reasonable accommodation; and (3) he suffered an adverse employment action because of his disability. See Moore v. J.B. Hunt Transp., Inc., 221 F.3d 944, 950 (7th Cir. 2000).

The Supreme Court has devised a three- part test for determining whether a plaintiff is "disabled" under 42 U.S.C. § 12102(2)(A), thereby satisfying the first prong of an ADA discrimination claim. See Bragdon v. Abbott, 524 U.S. 624, 631, 118 S. Ct. 2196, 141 L. Ed. 2d 540 (1998). First, we determine whether plaintiff suffered from a physical or mental impairment. See id. If so, we then determine whether the major life activity claimed by plaintiff constituted a major life activity under the ADA. See id. at 637. Finally, we analyze whether plaintiff's impairment substantially limited the major life activity. See id. at 639.

Plaintiff suffers from cirrhosis caused by chronic Hepatitis B. Dr. Dolin testified at his deposition that cirrhosis "is significant scarring [of the liver] to the point where it compromises the liver." This reduced liver functioning affects the ability of plaintiff's body to eliminate toxins and maintain appropriate glucose levels. Therefore, we agree with the district court's conclusion that plaintiff suffered from a physical impairment. See, e.g., Lawson v....