Hedberg v. Indiana Bell Telephone Co., Inc.

Decision Date21 February 1995
Docket NumberNo. 94-1860,94-1860
Citation47 F.3d 928
Parties, 4 A.D. Cases 65, 8 A.D.D. 644 Donald C. HEDBERG, Plaintiff-Appellant, v. INDIANA BELL TELEPHONE COMPANY, INC., Defendant-Appellee.
CourtU.S. Court of Appeals — Seventh Circuit

Mark R. Waterfill (argued) and Janet D. Neuenschwander, Leagre & Barnes, Indianapolis, IN, for plaintiff-appellant.

Julia F. Crowe (argued), Kim F. Ebert, Locke, Reynolds, Boyd & Weisell, and R. Anthony Prather, Indiana Bell Telephone Co., Indianapolis, IN, for defendant-appellee.

Douglas S. McDowell, Ann Elizabeth Reesman, and Kimberly L. Japinga, McGuiness & Williams, Washington, DC, for amicus curiae.

Before FLAUM and KANNE, Circuit Judges, and WILL, District Judge. *

KANNE, Circuit Judge.

Indiana Bell fired Donald Hedberg while he had a disease that is considered a disability under the Americans With Disabilities Act (ADA). Hedberg claims that Indiana Bell fired him because of his disability, in violation of the ADA. The district court disagreed and granted summary judgment for Indiana Bell. We affirm the district court's decision.

I. Background

Donald Hedberg worked for Indiana Bell from 1960 until 1992. From 1985 to 1992 he was a distributor manager. He managed outside agents, whom Indiana Bell had authorized to sell its services to business customers. Hedberg was one of five distributor managers in his subgroup, called the Channel Management group, which in turn was part of the Business Sales and Service Department. During his time as a distributor manager, Hedberg won various sales and performance awards. Virgil Pund supervised the Channel Management group and was thus Hedberg's immediate superior. Robert Knowling, who was in charge of the entire Business Sales and Service Department supervised Pund.

In early 1992, Indiana Bell began its "Workforce Resizing Program," a euphemism for firing workers during a company restructuring. As part of the process for deciding whom Indiana Bell should dismiss, Pund evaluated the five Channel Management group members. Pund completed an "Ameritech Development Profile Data Collection Form." 1 On that form he rated each of his subordinates in eleven areas, giving scores on a scale ranging from one to five. Pund ranked the employees in such diverse areas as leadership, negotiation, written and oral communication, and customer/quality focus. The form also required that Pund state the highest overall performance rating each employee had received in both 1990 and 1991, and it asked Pund his opinion about each employee's promotability. Pund completed a form rating Hedberg on August 31, 1992.

In addition to this detailed, formal evaluation, Pund occasionally evaluated the Channel Management group members less formally. In the summer of 1992, Knowling asked Pund to rank the five distributor managers he supervised on their current performance and managerial skills relative to each other. Pund ranked Hedberg fourth, i.e. second worst. Pund ranked one manager, David Meyers, lower.

In September 1992, Indiana Bell's decisionmakers, apparently all department heads such as Knowling, took the forms Pund and other managers had completed and distilled the information for use in deciding whom to fire. Scores in the eleven areas were added and averaged, to produce one numerical score embodying the information. The managers at each salary grade were ranked from highest to lowest score. A percentage of managers from the bottom of that ranking in each salary grade were placed in an "at risk" pool. Department heads could, after going through a complicated procedure, remove managers under them from the "at risk" pool or add managers to it. In Hedberg's salary grade approximately 50% of the managers, including Hedberg, ended up in the "at risk" pool.

Meanwhile, in early September 1992, Hedberg got a call from an Indiana Bell company physician, Dr. David Anfield, who had recently performed a routine physical examination on Hedberg. Hedberg says that in the months previous he had been suffering from fatigue. Dr. Anfield informed Hedberg that routine blood and urine tests showed a possible medical problem. On Dr. Anfield's recommendation, Hedberg immediately underwent further tests. In early September Hedberg informed Pund that he had a possible major health problem, but, wanting it kept private, he emphasized that Pund should not tell anybody else about it. In his affidavit, Pund says he told nobody until well after Indiana Bell decided to fire Hedberg.

Simultaneously, Indiana Bell's Resizing Program was moving toward reducing the size of the workforce. On October 12, 1992, eight department heads met to decide whom they should fire. Of the twenty-two managers in Hedberg's salary grade in the "at risk" pool, they fired ten, including both Hedberg and David Meyers. Five of the ten fired managers, including Meyers, had lower average scores than Hedberg on the Data Collection Form; four had higher scores. Notes that Knowling wrote on the ranking sheet written at the meeting remarked about Hedberg's performance: "Interpersonal skill problems. Doesn't come to work. Capable but [lacks] work ethic." While the final decision to fire Hedberg was made at the October 12 meeting, Hedberg was not told of his discharge until a November 16 meeting with Knowling.

Hedberg continued to undergo more tests between October 12 and November 16. He took some days off, with Pund's permission and with pay, for medical visits and treatments. Although at first Hedberg's doctors suspected he might have cancer, it turned out he had primary amyloidosis, which the parties characterize as an often fatal disease. After November 16, Hedberg appealed his firing through Indiana Bell's internal appeal procedures, but the company denied his appeal.

On October 10, 1993, Hedberg sued Indiana Bell in federal court, asking for damages under the Americans with Disabilities Act. Hedberg claimed that Indiana Bell had fired him because he had primary amyloidosis, which both parties agree constitutes a "disability" as the ADA defines the term. On March 14, 1994, the district court granted Indiana Bell's motion for summary judgment, reasoning that "Hedberg cannot succeed on his ADA claim if the decision to terminate Hedberg was reached without knowledge that Hedberg had a disability." Hedberg appeals.

II. Analysis

We review a district court's grant of summary judgment de novo. Anderson v. Baxter Healthcare Corp., 13 F.3d 1120, 1122 (7th Cir.1994). A district court must grant summary judgment where the record shows that "there is no genuine issue as to any material fact." FED.R.CIV.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). If no reasonable jury could find for the party opposing the motion, it must be granted. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2507, 91 L.Ed.2d 202 (1986); Roger v. Yellow Freight Systems, Inc., 21 F.3d 146, 149 (7th Cir.1994). Conclusory allegations by the party opposing the motion cannot defeat the motion. First Commodity Traders v. Heinold Commodities, 766 F.2d 1007, 1011 (7th Cir.1985). The party opposing the motion must come forward with evidence of a genuine factual dispute. Celotex, 477 U.S. at 322-23, 106 S.Ct. at 2553. We draw all reasonable inferences in favor of the nonmoving party. Harriston v. Chicago Tribune Co., 992 F.2d 697, 704 (7th Cir.1993).

The ADA provides that no employer "shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to ... the hiring, advancement or discharge of employees...." 42 U.S.C. Sec. 12112. Hedberg bases his claim on this section.

Indiana Bell offered sworn affidavits to the district court from Knowling and the other decisionmakers, stating that they had not known of Hedberg's disability when they decided to discharge him. They stated that they based their firing decision primarily on the low ranking Hedberg received on the standard form. Hedberg did not try to controvert those affidavits with his own affidavits or with other evidence. The district court therefore concluded that there was no real issue that Knowling and the others did not know of Hedberg's disability when they decided to discharge him on October 12. The court further reasoned that without knowledge of Hedberg's disability, Indiana Bell could not possibly have fired Hedberg "because of" his disability, as the ADA requires for liability to attach. Therefore, because there was no genuine issue regarding that material fact, the district court granted summary judgment in favor of Indiana Bell. Hedberg attacks the district court's decision.

Hedberg admits that an employer must know about a fired employee's disability for there to be ADA liability, conceding the obvious logic of the argument. But he argues that there is indeed a genuine issue about whether Indiana Bell knew about his disability on October 12. Hedberg argues that because Pund admits he reported occasionally to Knowling about the performance of the members of the Channel Management group, it is reasonable to infer that Pund told Knowling about Hedberg's disability before October 12, when the firing decisions were made.

Hedberg admits that Pund could not have known about his disability on August 31, when he completed his evaluation form, because Hedberg himself only found out in early September. Hedberg and Pund are not sure when exactly Hedberg told Pund about his illness, but they agree it was sometime in mid- to late September. The parties agree that Knowling knew something about Hedberg's illness on November 16, because he asked Hedberg at that meeting about the results of the medical tests Hedberg had undergone. Knowling stated in his affidavit that he had learned of Hedberg's illness around November 11.

Hedberg's desired inference, that Pund must have told Knowling of Hedberg's illness before October 12,...

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