Nese v. Julian Nordic Const. Co.

• Decision Date: 27 April 2005
• Docket Number: No. 04-2576.,04-2576.
• Citation: 405 F.3d 638
• Parties: Louis V. NESE, Plaintiff-Appellant, v. JULIAN NORDIC CONSTRUCTION COMPANY and Administaff, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

405 F.3d 638

Louis V. NESE, Plaintiff-Appellant, v. JULIAN NORDIC CONSTRUCTION COMPANY and Administaff, Defendants-Appellees.

No. 04-2576.

United States Court of Appeals, Seventh Circuit.

Argued February 8, 2005.

Decided April 27, 2005.

Elliot S. Wiczer, Robert Shulman (argued), Wiczer & Zelmar, Northbrook, IL, for Plaintiff-Appellant.

Gerald L. Maatman, Jr., Christopher A. Garcia (argued), David Manjarres, Seyfarth & Shaw, Chicago, IL, for Defendants-Appellees.

Before RIPPLE, EVANS, and WILLIAMS, Circuit Judges.

TERENCE T. EVANS, Circuit Judge.

Louis Nese claims that his employer violated the Americans with Disabilities Act, 42 U.S.C. § 12101(ADA), by reducing his wages and then terminating him because of its incorrect perception that he had a disability. The district court granted summary judgment for the employer and Nese appeals.

Nese, who is now in his forties, began having epileptic seizures when he was 15 years old. He has taken prescription medication to control his seizures for about 27 years. He experiences no side effects from the medication and has regularly worked as a carpenter for various employers, including Handy Andy and Builders Square. He has also run a company of his own, though it apparently was not profitable. The defendant, Julian and Nordic Industries, Inc. (that's the name we find in one brief — the other says Nordic Construction Services, Inc.), which we will refer to as Nordic, is a general contractor providing commercial and residential services and fire and water damage restoration. Administaff is a professional personnel management company, providing services to Nordic.

Prior to Nese's employment with Nordic and while he ran his own business, he was a member of the Downers Grove (Illinois) Chamber of Commerce and of a business networking group called the Lodge. Only one construction contractor was allowed to be a member of the Lodge. Nese held that membership. Also, though, Tom Julian, the owner of Nordic, was a member of the Lodge in his capacity not as a contractor but as the owner of a cleaning service. The two men were acquainted and, in fact, it appears that Julian was instrumental in obtaining Nese's membership in the Lodge. The two men also assisted each other in generating business.

In August 2000, Julian hired Nese to work for Nordic on a 90-day trial basis. Nese informed Julian that he did not have a driver's license at that time because he had suffered a seizure. Nevertheless, Julian hired him and provided another employee to drive Nese to work until he was able to regain his driver's license. Nese's hourly rate of pay was $22.50 per hour.

However, in February 2001, Nese's hourly rate was reduced to $18.00 per hour. The controversy between the parties arises at this point. The wage rate was changed either because Nese's work pace was not up to the standard of the other carpenters or because other workers were making less and the disparity was causing a problem. There is a controversy also over whether any Nordic employee had talked to Nese about problems with his work. When Nese's hourly rate was decreased, Julian completed an employee status change form which, at that time, did not contain any comments regarding the pace of his work. At some time, however, the form was amended and a comment was added that Nese's "[w]ork pace is not to standards of peers."

As to the pace of his work, Nese contends that it "may not have been exactly" like that of the other workers, but it was comparable. His supervisor, Gary Boerma, asked Nese and other carpenters to pick up the pace. Then in September 2001, Boerma completed a performance evaluation of Nese. The evaluation, in its present form, has a section covered with "white-out." Nese says the white-out was not there when he first saw the evaluation. Boerma says it was and that it covered a comment that another Nordic employee found unprofessional. The original comment was, "Louis has worked for himself for a long time and has apparently never had to shift gears." After that comment was covered, Boerma wrote, "He needs to complete assigned task within acceptable time frame, also needs to learn new tasks and methods." A month later, Nese was given a raise to $18.50 per hour.

Then in November 2001, Nordic received a letter from a legal advocacy group acting on Nese's behalf. The letter accused Nordic of possible discriminatory acts relating to the company's treatment of Nese. In January 2002, Nese was transferred to the side of Nordic's business which did insurance repair work. Julian completed an employee status change form that documented the transfer. On the form, Julian wrote, "Pace of work is still a problem — smaller jobs will be better suited to gauge pace." A few weeks later, Nese was placed on temporary layoff due to lack of work. By October, Nese apparently felt that he had been fired. Following the layoff, Nese worked fixing up a home and since May 2003 has worked for a company called One Stop Construction. He admits that he can perform carpentry work.

The basis of Nese's appeal is, of course, that in some manner Nordic lowered his wages and then terminated him because of his disability — epilepsy. He does not claim, however, that his epilepsy actually makes him disabled within the meaning of the ADA. His claim is that Nordic perceived him as disabled and then made adverse employment decisions because of that perception.

We review the grant of summary judgment de novo. Silk v. City of Chicago, 194 F.3d 788 (7th Cir.1999). Summary judgment is appropriate if on the record as a whole "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." Fed.R.Civ.P. 56(c).

To establish disability discrimination, Nese must show that he is disabled within the meaning of the ADA, that he is qualified to perform the essential functions of the job, either with or without a reasonable accommodation, and that he suffered from an adverse employment action because of his disability. Byrne v. Board of Educ., School of West Allis-West Milwaukee, 979 F.2d 560 (7th Cir.1992). In order to establish his prima facie case that he is disabled, Nese can show either (1) that he has a physical or mental impairment that substantially limits him in one or more major life activities; (2) that he has a record of such an impairment; or (3) that the employer regarded him as having such an impairment. 42 U.S.C. § 12102(2). If his condition does not meet one of these categories even if he was terminated because of some medical condition, he is not disabled within the meaning of the Act. The ADA is not a general protection for medically afflicted persons. Christian v. St. Anthony Med. Ctr., Inc., 117 F.3d 1051 (7th Cir.1997). As we said, Nese is contending not that he is actually disabled, but that Nordic regarded him as disabled. Under a "regarded as" claim, a plaintiff must prove that either: (1) the employer mistakenly believes the employee has a physical impairment that substantially limits a major life activity; or (2) the employer mistakenly believes that an actual, nonlimiting impairment substantially limits a major life activity. Amadio v. Ford Motor Co., 238 F.3d 919, 925 (7th Cir.2001) (citing Sutton v. United Air Lines, Inc., 527 U.S. 471, 489, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999)); see also 29 C.F.R. § 1630.2(1). In other words, the employer "must believe either that one has a substantially limiting impairment that one does not have or that one has a substantially limiting impairment when, in fact, the impairment is not so limiting." Sutton v. United Air Lines, Inc., 527 U.S. 471, 489, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999); see also Peters v. City of Mauston, 311 F.3d 835 (7th Cir.2002).

If an ADA plaintiff establishes a prima facie case, the burden shifts to the employer to offer a legitimate nondiscriminatory reason for the employment decision. If the employer succeeds, then the burden reverts to the plaintiff to show that there is a genuine dispute of material fact that the proffered reason for the employment action is pretextual. DeLuca v. Winer Indus., Inc., 53 F.3d 793, 797 (7th Cir.1995) (applying the indirect method of proof to ADA cases).

Perhaps realizing that there is nothing in this record to show that epilepsy had anything to do with Nordic's actions, nor has it limited his ability to work, Nese contends that he should prevail at the summary judgment stage because evidence that Nordic was aware of his seizure disorder should be combined with the evidence that Nordic "concocted" a pretextual justification for the termination — that is, that his work pace was slow. He sees evidence of pretext in the fact that the evaluation form has a whited-out statement. Nese wants us to collapse the requirement for a prima facie case under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), with the requirement that a plaintiff show that the defendant's reason for...