ENTRY ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

SARAH EVANS BARKER, Judge United States District Court.

I. Introduction

This is a disability discrimination case brought pursuant to the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. The plaintiff, Terrance C. Smith, alleged in his complaint that his former employer, Warren R. Gregory Sons, Inc. (hereafter "WGS") discharged him from employment because of his disability, a back condition that restricted his ability to work.

The case is before us on defendant's motion for summary judgment. At the summary judgment phase, Mr. Smith argues not only that WGS fired him because of his disability, but also that WGS failed to accommodate his disability, and that, alternatively, it fired him because it perceived him to be disabled or because he had a record of disability. Also before us are motions to strike filed by both parties. Since the motions to strike are intertwined with the merits on summary judgment, we resolve them here instead of in a separate entry. For the reasons explicated below, we GRANT WGS's motion for summary judgment.

II. Statement of Facts

The following facts are either undisputed by the parties or stated in a light reasonably most favorable to the plaintiff. All of them are supported by admissible evidence.

A. Background.

WGS is in the construction business. It performs general remodeling as well as building reconstruction following fire or water damage. Def. Facts ¶ 1. At all pertinent times, WGS employed three supervisors: Jerry Edder, Rhonda Dorsey, and Terrance Smith. Although all three performed a range of tasks on a variety of projects, Mr. Smith concedes that, as a general rule, Mr. Edder focused on framing, Ms. Dorsey focused on interior finishing, and Mr. Smith focused on roofing. In December 1996, a month after he was hired as an "estimator," Mr. Smith was promoted to a supervisor whose primary responsibility was to supervise roofing projects, since "it was nothing to have a hundred roofs sitting in the hopper at any one time." Def. Facts ¶¶ 3-6; Pl. Response to Def. Facts ¶ 6; Smith Dep., II, p. 102. Indeed, he testified, "you had your hands full if you just took care of all the roofing." Smith Dep., II, 95.

Among his duties as a supervisor, Mr. Smith was expected to visit job sites immediately following a fire or other damaging event. He was to secure the building and assess the damage in order to evaluate the scope of the job. Once the scope of a project was defined, Mr. Smith was responsible for overseeing all aspects of the project including: reading blueprints, ordering needed materials, inspecting the site, inspecting the work of all subcontractors and employees, demonstrating proper construction techniques, performing general construction work when needed, and supplying construction materials to and removing construction materials from a work site. Def. Facts, ¶ 12. Accordingly, Mr. Smith was required to physically inspect all damaged portions of the building which may have included damage to the interior, the roof, or the foundation. Def. Facts ¶¶ 7-9. Such inspection, of course, required Mr. Smith to be in the field. While he could perform some of his tasks at the shop, his duties required him to be on site. Def. Facts, ¶ 13, 14. Indeed, he was required to inspect his sites twice per day. Def. Facts, ¶ 15.

Although Mr. Smith emphasizes in his affidavit that he "only occasionally was required to climb onto a roof or explore an attic or crawl space of a building," Smith Aff., ¶ 11, he acknowledged in his prior deposition testimony that physically mounting roofs in order to inspect them was a routine aspect of his job. On this most hotly contested issue, he testified in his deposition that, when he went out to assess the damage, "[y]ou went out and physically looked yourself. I did a lot of the roofs for John. In fact, I think I did all of the roofs from all of `96 and up until I was injured in `97." Smith Dep., II, 77. He acknowledged being responsible for "running most of the roof jobs." Smith Dep., II, 79. He testified that, in an average day, he could cover eight to ten roofs, "if you just had to climb on the roof . . . if the subcontractor already had ladders set up and everything. All you had to do is jump out of the truck, walk up the ladder, climb up on the roof, look for proper nailing, look for proper flashing . . ." Smith Dep., II, 87.

Mr. Smith testified, in sum: "You physically had to get on the roofs and/or in the attics and/or underneath the house to be able to see what you think exactly is the problem. You cannot look at a roof and tell what the problem is by standing on the ground just looking at it." Smith Dep., II, 79-80. In answer to the question "from a physical standpoint, what did that require of you being in a supervisory capacity? Mr. Smith testified:

You had to be able to go anyplace a carpenter can go whether it is to walk ceiling joists

[to] see how their nailing patterns are, get up onto a roof. . . . You had to [be] agile enough to get up on this roof or get underneath the house to see how much water damage there was. You have to be 110 percent both in physical, but in agility and everything else.

Smith Dep., I, 14-15. He also testified that, when a job was under time pressure, he engaged in physical labor, including toting plywood boards up to roofs. Id. at 16. He was, in short, a "working supervisor." Id. at 15. Def. Facts, ¶¶ 19-22. These activities were commonplace prior to his injury.

B. Mr. Smith's Injury and Its Aftermath.

On June 26, 1997, Mr. Smith injured his back while on the job. He had bundles of shingles — 80 to 85 pounds per bundle — in the back of his truck, which he started to unload at a WGS storage site. He bent over, grabbed a bundle, picked it up to haul it over the side of the truck, and felt a sharp pain in his lower back; the pain was sharp enough to take his breath away. His back locked up. Smith Dep., II, 107-108; Def. Facts, ¶¶ 22-23.

Immediately after his injury, Mr. Smith reported the injury to WGS General Manager, Jim Davis. Although he went home thinking that he had merely pulled a muscle, he could hardly move when he got up for work the next day. He could not even drive himself to work. He reported his condition to Mr. Davis, who sent him to St. Francis Hospital. There, Dr. Levine prescribed muscle relaxants and pain medication and placed him under work restrictions on bending, lifting, climbing, and driving. An MRI on June 30, 1997 revealed that, as a result of the accident, Mr. Smith had a bulging disk between the L5-L6 region. Pl. Add. Facts, ¶¶ 45-52.

WGS workers compensation insurance provided coverage. Early in October, 1997, Mr. Smith was sent to see Dr. John Peters, of Orthopedics Spine Surgery, who removed Smith's driving restriction as long as he was able to stop and move around every twenty to thirty minutes to reduce cramping in his back. Mr. Smith also was able to resume visits to job sites, but continued to have restrictions on his physical activities. Pl. Add. Facts, ¶¶ 53-54. Mr. Smith testified that, after Dr. Peters lifted some of the restrictions:

I couldn't crawl underneath a house. I couldn't climb up on the roof. Basically, anything that was very physical at all, I couldn't do. I couldn't lift over, I think it was 20 or 30 pounds that I was restricted to. No crawling, kneeling, climbing.

Smith Dep., II, 126. See Pl. Add. Facts, ¶ 57.

Mr. Smith continued to see Dr. Peters for approximately three months. At that point, feeling that his condition had not been properly diagnosed or properly treated, he asked to see a different physician. In January 1998, Mr. Smith was referred to Dr. J. Paul Kern at the Orthopedic Spine Surgery in Indianapolis for further examination and treatment. The parties agree that Dr. Kern issued restrictions on Mr. Smith's work activities and WGS placed him on restricted duty consistent with his restrictions. Def. Facts, ¶¶ 26, 27. Pl. Add. Facts ¶ 57. WGS says that it provided Mr. Smith restricted work on a temporary basis. Def. Facts, ¶ 27. Mr. Smith argues that, since no one told him it was temporary and since he was under the impression that WGS was creating a position for him, then the changed assignment must have been permanent. Pl. Resp. to Def. Facts, ¶ 27. According to the EEOC investigator's notes, WGS General Manager Bill Serban said that the restricted assignment was intended to be a reasonable accommodation. Pl. Resp. to Def. Facts, ¶ 27.

In February 1998, Mr. Smith underwent therapy under Dr. Kern's care, but he felt that his pain was, if anything, worsening. Dr. Kern interrupted the therapy and placed Mr. Smith in a work hardening program. Mr. Smith attended the work hardening on March 3 and saw Dr. Kern the next day. Pl. Add. Facts, ¶ 55, 56, 58, 59.

Dr. Kern placed Mr. Smith on certain work restrictions including:

No lifting over 30 pounds on an occasional basis; 15 pounds on a frequent basis; No repetitive lifting, twisting or bending;

No sitting more than thirty minutes without a five minute break;

No sustained bending;

Occasional kneeling.

Pl. Resp. to Def. Facts, ¶ 36; Pl. Ex. E. The parties agree that these restrictions were not significantly different from the ones that had governed Mr. Smith's work since he was assigned to restricted duty. Def. Facts, ¶ 37. Dr. Kern also assigned Mr. Smith a permanent partial impairment of 5% of the whole person. Pl. Add. Facts, ¶ 60. Mr. Smith was under the impression that — on either the same day, March 4, 1998 or the next day — Dr. Kern would send WGS a copy of his report containing the restrictions and permanent partial impairment rating. Pl. Add. Facts, ¶ 61.

On March 5, 1998, Mr. Smith informed General Manager Davis that WGS should be receiving a report from Dr. Kern regarding his condition and restrictions. Pl. Add. Facts, ¶ 62. WGS does not deny that Mr. Davis received the form. The following day, Mr. Smith was terminated. Def. Facts ¶ 42. He met with Jim Davis, who informed him that he was being terminated. Mr. Smith asked Mr. Davis whether his injury or Dr. Kern's report had anything to do with his discharge. Mr. Davis became irate and ordered Mr. Smith to leave the premises immediately. Pl. Resp. to Def. Facts, ¶ 43.

WGS acknowledges that Mr. Smith was terminated because he could not perform his supervisor job due to his permanent restrictions. "Because Smith's restrictions were permanent and such that he was unable to perform in a supervisor's role, the Company chose to terminate Smith over the two other supervisors." Def. Facts ¶ 41. It explains that it terminated Mr. Smith because the company was experiencing a slow-down and, with Mr. Smith not performing his regular duties, it realized that it could make do with two supervisors rather than three. Def. Facts ¶¶ 38-42.

III. Analysis A. The Standard on Summary Judgment

Summary judgment is appropriate 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." Fed.R.Civ.P. 56(c). A genuine issue of material fact exists if there is sufficient evidence for a reasonable jury to return a verdict in favor of the non-moving party on the particular issue. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Eiland v. Trinity Hosp., 150 F.3d 747, 750 (7th Cir. 1998).

On a motion for summary judgment, the burden rests on the moving party to demonstrate "that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). After the moving party demonstrates the absence of a genuine issue for trial, the responsibility shifts to the non-movant to "go beyond the pleadings" and point to evidence of a genuine factual dispute precluding summary judgment. Id. at 322-23, 106 S.Ct. 2548. "If the non-movant does not come forward with evidence that would reasonably permit the finder of fact to find in her favor on a material question, then the court must enter summary judgment against her." Waldridge v. American Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Celotex, 477 U.S. at 322-24, 106 S.Ct. 2548; Anderson, 477 U.S. at 249-52, 106 S.Ct. 2505).

Summary judgment is not a substitute for a trial on the merits, nor is it a vehicle for resolving factual disputes. Waldridge, 24 F.3d at 290. Therefore, in considering a motion for summary judgment, we draw all reasonable inferences in favor of the non-movant. Venters v. City of Delphi, 123 F.3d 956, 962 (7th Cir. 1997). If genuine doubts remain, and a reasonable fact-finder could find for the party opposing the motion, summary judgment is inappropriate. See Shields Enters., Inc. v. First Chicago Corp., 975 F.2d 1290, 1294 (7th Cir. 1992); Wolf v. City of Fitchburg, 870 F.2d 1327, 1330 (7th Cir. 1989). But if it is clear that a plaintiff will be unable to satisfy the legal requirements necessary to establish her case, summary judgment is not only appropriate, but mandated. See Celotex, 477 U.S. at 322, 106 S.Ct. 2548; Waldridge, 24 F.3d at 920.

B. The Parties' Motions to Strike.

Both parties have filed motions to strike. WGS asks us to strike three of Mr. Smith's claims on summary judgment because they concern issues that are neither like nor reasonably related to the claims he alleged in his EEOC charge. WGS also asks us to strike three of the exhibits that Mr. Smith offers in opposition to summary judgment: Exhibit C, Mr. Smith's affidavit, on the ground that it seeks to raise an issue of fact by contradicting Mr. Smith's earlier deposition testimony; and Exhibits D (portions of the EEOC's administrative file) and H (the Social Security Administration's Notice of Award) on the grounds that they are inadmissable because they are irrelevant and prejudicial.

Meanwhile, Mr. Smith asks us to strike Defendant's Exhibit B, a submission purporting to be the EEOC's "complete" administrative file because defendant failed to authenticate it. We resolve these issues as follows:

1. WGS's Motion to Strike Claims.

Mr. Smith's EEOC charge contains a bare-bones statement to the effect that he was laid off on March 6, 1998, the day after WGS received a copy of Dr. Kern's report, which places restrictions on Mr. Smith's work activities and indicates that Mr. Smith was subject to a permanent partial impairment rating of 5% of the person. Pl. Ex. E. He alleged in his charge that he was laid off because of his disability in violation of the ADA. Mr. Smith's complaint directly echoes his EEOC charge. It alleges that he was discharged because of his disability. In other words, Mr. Smith makes no reference to WGS's alleged failure to accommodate in his EEOC charge or even in his complaint. He raises that allegation for the first time in opposition to summary judgment.

On summary judgment, Mr. Smith argues in addition to his claim that WGS discharged him because of his actual disability that WGS failed to accommodate his disability. He further alleges that WGS discharged him because it perceived him to be disabled or because he had a record of disability. Thus WGS asks us strike Mr. Smith's failure-to-accommodate claim, his regarded as disabled claim, and his record of disability claim, leaving only his original claim that WGS fired him because of his disability.

It is well-established in the law of employment discrimination that a plaintiff may allege in his complaint only the matters that he raised in his EEOC charge. Vela v. Village of Sauk Village, 218 F.3d 661, 664 (7th Cir. 2000); Cable v. Ivy Tech State College, 200 F.3d 467, 476-477 (7th Cir. 1999). There are two principal reasons for requiring a potential plaintiff to file an administrative charge with EEOC: to place the employer on notice of allegations against which it may need to defend itself; and to provide EEOC with an opportunity to conciliate. Since notice to the employer is crucial, the law permits the plaintiff to include in his complaint only such matters as are "like or reasonably related to" the allegations contained in his EEOC charge. Vela, 218 F.3d at 664; Cable, 200 F.3d at 476-477; Cheek v. Western and Southern Life Insurance Co., 31 F.3d 497, 500 (7th Cir. 1994). Here, Mr. Smith not only failed to hint at a failure to accommodate in his EEOC charge, he did not even include it in his complaint.

The Seventh Circuit's clear guidance leads to the conclusion that Mr. Smith's failure-to-accommodate claim is not like or reasonably related to his disparate treatment claim. In Green v. National Steel Corp., Midwest Division, 197 F.3d 894, 898 (7th Cir. 1999), the court reiterated that failure-to-accommodate claims and disparate treatment claims are governed by different legal analyses. "Failure-to-accommodate" cases are subject to a kind of strict liability, whereas "disparate treatment" cases are governed by traditional employment discrimination analysis, in which proof of the employer's unlawful motive is required. Bultemeyer v. Fort Wayne Community Schools, 100 F.3d 1281, 1283 (7th Cir. 1996). See Foster v. Arthur Andersen, LLP, 168 F.3d 1029, 1032 (7th Cir. 1999); Weigel v. Target Stores, 122 F.3d 461, 464 (7th Cir. 1997). It follows that failure-to-accommodate and disparate treatment claims "are not like or reasonably related to one another, and one cannot expect a failure to accommodate claim to develop from an investigation into a claim that an employee was terminated because of a disability." Green, 197 F.3d 894, 898. Therefore, we strike Mr. Smith's failure-to-accommodate claim because it is not like or reasonably related to the allegations asserted in his EEOC charge because the charge could not have put WGS on notice of that claim.

By contrast, Mr. Smith's "regarded as disabled" and "record of disability" claims are like or reasonably related to his discriminatory discharge claim. Three points on this issue should suffice. First, there is a factual basis in Mr. Smith's EEOC charge for permitting him to claim both "regarded as disabled" and "record of disability" claims. In his EEOC charge — and again in his complaint — he alleged a connection (which we construe as a causal connection) between WGS receiving a medical form in which Mr. Smith's work restrictions and permanent impairment were noted in detail and his discharge a day later, thus placing EEOC and WGS on notice of potential "regarded as disabled" and "record of disability" claims. In other words, EEOC could reasonably have been expected to investigate these related claims based on Mr. Smith's charge and WGS could reasonably have been expected to provide a defense against such claims.

Second, the statute defines "disability" in three ways, including an actual disability, being regarded as disabled, and having a record of disability. There is case law for the proposition that, in alleging in his EEOC charge that he was treated unfavorably "due to my disability," Mr. Smith alleged a causal connection between his disability and WGS's decision to terminate his employment, thus triggering inquiry into any or all of the three definitions. See, e.g., Pellack v. Thorek Hosp. Medical Center, 9 F. Supp.2d 984, 989 (N.D.Ill., 1998) (district court permitted perceived disability to go forward by virtue of alleging that plaintiff was discharged "because of her disability," triggering all three definitions).

Finally, all three allegations of disparate treatment — as contrasted with failure-to-accommodate claims — are governed by traditional disparate treatment analysis in employment discrimination cases. Hoffman v. Caterpillar, Inc., 256 F.3d 568, 571 (7th Cir. 2001) (ADA disparate treatment cases subject to same analysis as govern other employment discrimination disparate treatment cases); Pugh v. City Of Attica, Indiana, 259 F.3d 619, 625-626 (7th Cir. 2001) (regarded as disabled); Bekker v. Humana Health Plan, Inc., 229 F.3d 662, 670 (7th Cir. 2000), cert. denied, 121 S.Ct. 1603 (2001) (regarded as disabled); Lawson v. CSX Transportation, Inc., 245 F.3d 916, 926-927 (7th Cir. 2001) (record of disability); Davidson v. Midelfort Clinic, Ltd., 133 F.3d 499, 509 (7th Cir. 1998) (record of disability).

Accordingly, we DENY defendant's motion to strike Ms. Smith's "regarded as disabled" and "record of disability" claims.

2. WGS's Motion to Strike Exhibits.

WGS also asks us to strike three exhibits offered by Mr. Smith in opposition to summary judgment: Exhibits C, D, and H.

* Exhibit C. WGS argues that Mr. Smith's affidavit is inadmissible because it contradicts Mr. Smith's earlier deposition testimony. A plaintiff may not manufacture a genuine issue of material fact in order to survive summary judgment by making statements in an affidavit that contradict his earlier sworn deposition testimony. Although the affiant may clarify or explain his earlier testimony, he may not contradict it. Amadio v. Ford Motor Co., 238 F.3d 919, 926 (7th Cir. 2001); Russell v. Acme-Evans Co., 51 F.3d 64, 67 (7th Cir. 1995).

We agree with WGS that certain statements in Mr. Smith's affidavit contradict his earlier deposition testimony. Although we do not strike the entire affidavit, we strike the offending statements.

As we noted earlier, the most hotly contested issue here is the essential functions of the supervisor's job. That issue is central because it goes to the question of whether Mr. Smith was a "qualified individual with a disability" — that is, a person with a disability who can perform the essential functions of the job with or without a reasonable accommodation. 42 U.S.C. § 12111(8). Since WGS argues that Mr. Smith was not a qualified individual with a disability because he could not perform the essential functions of his job, it behooves WGS to show that the essential functions of his job were strenuous. By contrast, since Mr. Smith argues that he could (and did) perform the essential functions, it behooves him to show that the essential functions were not strenuous.

It turns out in this case that the essential functions issue is not as crucial an issue as the parties anticipated. Since we have stricken Mr. Smith's failure-to-accommodate claim, and since we find that Mr. Smith did not have an impairment that substantially limited his major life activity of working, we have little need to determine which tasks were essential functions and which were not.

Still, we hold Mr. Smith to his deposition testimony where it is materially inconsistent with his later affidavit. Mr. Smith acknowledged in his deposition that his main job was supervising roof construction and that supervisory duties were, as a rule of thumb, divided between Mr. Edder who mainly supervised framing, Ms. Dorsey who mainly supervised interior finishing, and Mr. Smith whose principal focus was roofing. To the extent that Mr. Smith's statements in his affidavit paragraphs 7, 9, and 10 are materially inconsistent with his earlier deposition testimony, we strike those statements and do not credit them on summary judgment.

Related to the first area of inconsistency, Mr. Smith's deposition testimony included among his routine duties as a supervisor climbing roofs and, when pressed for time, engaging in actual construction activities. As we noted earlier, Mr. Smith testified that, in an average day, he could cover eight to ten roofs, "if you just had to climb on the roof. . . All you had to do is jump out of the truck, walk up the ladder, climb up on the roof, look for proper nailing, look for proper flashing. . ." Smith Dep., II, 87. He stated that: "You physically had to get on the roofs and/or in the attics and/or underneath the house to be able to see what you think exactly is the problem." Smith Dep., II, 79-80. Finally, in answer to the question "from a physical standpoint, what did that require of you being in a supervisory capacity? Mr. Smith testified:

You had to be able to go anyplace a carpenter can go whether it is to walk ceiling joists [to] see how their nailing patterns are, get up onto a roof. . . . You had to [be] agile enough to get up on this roof or get underneath the house to see how much water damage there was. You have to be 110 percent both in physical, but in agility and everything else.

Smith Dep., I, 14-15. These comments reasonably would have led WGS to believe that Mr. Smith acknowledged that his supervisory job required him to routinely climb roofs to assess damage and to oversee reconstruction. They are materially inconsistent with Mr. Smith's later affidavit testimony that he only "occasionally" did such strenuous activity. Accordingly, we strike affidavit paragraphs 11, 12, 14, and 15 to the extent that they are materially inconsistent with his deposition testimony.

Finally, Mr. Smith made clear in his deposition that, as a working supervisor, he had to be on site to do the job properly. He asserted: "You cannot look at a roof and tell what the problem is by standing on the ground just looking at it." Smith Dep., II, 79-80. In his later affidavit he states that he had to perform only "some" of his duties on site. Smith Aff., ¶ 13. This begs the questions: which duties did he have to perform on site? and how important were those duties? In addition, his deposition testimony is inconsistent with his implied request that he be accommodated by being permitted to inspect photos of roof damage instead of inspecting the roofs themselves. We believe that this effectively acknowledges that being on site was an essential function of his job.

For these reasons, we GRANT WGS's motion to strike certain paragraphs of Mr. Smith's affidavit.

* Exhibit D. WGS asks us to strike Mr. Smith's proffer of documents from the EEOC's investigation file and offers three reasons for doing so: first, Mr. Smith offers only some of the documents from that file and not the complete file; second, the documents contain hearsay; and third, at least some of the contents are "prejudicial and untrustworthy." We DENY WGS's motion to strike the documents contained in Exhibit D. WGS's arguments tend to challenge the weight and not the admissibility of the evidence.

First, plaintiff had no duty to provide all of the documents contained in the EEOC's investigative file and defendant points to no legal authority to the contrary. On summary judgment, Mr. Smith's obligation is to present admissible evidence tending to raise a genuine issue of material fact. If he can raise a genuine issue by offering one document, there is no reason to offer ten, five, or even two. (There are excellent reasons not to!) Nor does Mr. Smith have a duty to be "fair" to WGS by offering all possible documents. Fairness is for trial. Summary judgment tests only whether the plaintiff has presented legally sufficient evidence to go to trial.

Second, with respect to the one example that WGS mentions with specificity, it complains that Mr. Smith offers a document containing hearsay and even hearsay within hearsay. These are Notes recorded on June 22, 1999 by EEOC investigator Terry Terhune. In the Notes, Mr. Terhune records that he spoke with WGS General Manager Bill Serban, who said that WGS provided Mr. Smith with desk work for nine months after Mr. Smith was injured. The Notes also mention that Mr. Serban referred to the desk work as "a reasonable accommodation" for Mr. Smith.

We find that the Notes are admissible because they avoid the hearsay rule under Fed.R.Evid. 801(d)(2); they also fall squarely within an exception to the hearsay rule under Fed.R.Evid. 803(8)(c). Rule 801(d)(2) provides that a statement is not hearsay if it is made "by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship." As WGS's General Manager, Mr. Serban was, presumably, authorized to speak on behalf of the company for purposes of the EEOC investigation. Accordingly, his statements — whatever their evidentiary value may be — are admissions of WGS and not hearsay.

Rule 803(8)(c) provides that "[r]ecords, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth . . . factual findings resulting from an investigation made pursuant to authority granted by law" are admissible, "unless the sources of information or other circumstances indicate lack of trustworthiness." Mr. Terhune's Notes are the product of his work as an investigator for EEOC which relate to an open case to which he was assigned. These facts meet the standards outlined in Rule 803(8)(c). And there is simply no reason on the record to conclude that the Notes betray indicia of unreliability. If Mr. Serban wished to controvert the accuracy of Mr. Terhune's Notes, he would be free to do so at trial.

Finally, we fail to see how Mr. Terhune's Notes could be construed as "prejudicial" to WGS as that term is understood under the Rules of Evidence. In order to exclude otherwise relevant evidence, Fed.R.Evid. 403 requires a showing that proffered evidence is not merely "prejudicial," but "unfairly prejudicial." As the courts have frequently reminded us, evidence that is not "prejudicial" to one's opponent's case would hardly be worth offering. See, e.g., U.S. v. Bogan, 267 F.3d 614, 622-623 (7th Cir. 2001). Evidence is "unfairly prejudicial," by contrast, "if it will induce the jury to decide the case on an improper basis, commonly an emotional one, rather than on the evidence presented." Id. (internal quotations omitted). Which brings us to an additional point.

Although evidence may be excluded at the summary judgment phase because it is "unfairly prejudicial," ordinarily such a judgment is made at trial, where the finder of fact may be more susceptible to considering non-rational factors. Adams v. Ameritech Services, Inc., 231 F.3d 414, 428 (7th Cir. 2000). Here, WGS has given us no reason to conclude that it will be unfairly prejudiced by the introduction of Mr. Terhune's investigative Notes or any of the other documents contained in Exhibit D.

Accordingly, we DENY WGS's Motion to Strike Exhibit D.

* Exhibit H. WGS asks us to strike the Social Security Administration's Notice of Award ("SSA Notice") on the ground that it is inadmissable because irrelevant and prejudicial. To the extent that Mr. Smith offers the SSA Notice for the purpose of showing that he was discharged because of his disability, we find the SSA Notice to be irrelevant because it was rendered long after Mr. Smith's employment was terminated and therefore cannot provide support for any of his three disparate treatment claims.

The parties agree that Mr. Smith was discharged on March 6, 1998. The SSA Notice is dated July 17, 2000 and it dates the beginning of Mr. Smith's eligibility for disability compensation on December 9, 1999. Pl. Ex. H. The determination as to whether one is a "qualified individual with a disability" is made at the time of the employment decision at issue. 29 C.F.R. § 1630.2(m); Lawson v. CSX Transportation, Inc., 245 F.3d 916, 928 (7th Cir. 2001); Amadio v. Ford Motor Co., 238 F.3d 919, 926 (7th Cir. 2001). Evidence of a disability more than two years after the termination and seven months after the date on which Mr. Smith was declared eligible for benefits is legally insufficient to support a finding that Mr. Smith had a disability as of March 6, 1998 and therefore insufficient to support a finding of liability.

Accordingly, we GRANT WGS's motion to strike Exhibit H. 3. Mr. Smith's Motion to Strike EEOC File.

Mr. Smith's motion to strike the "complete" EEOC file is DENIED. Plaintiff is correct in stating that authentication is a condition precedent of admissibility. And it is true that the Rules of Evidence require some minimal showing that the documents are what they purport to be. Fed.R.Evid. 901(a); Otto v. Variable Annuity Life Ins. Co., 134 F.3d 841, 852-853 (7th Cir. 1998). By including the EEOC's February 15, 2000 response to counsel's FOIA request — signed by Laurie Young and indicating that WGS's request was granted in its entirety — WGS has made at least that minimal showing.

We offer no opinion as to the documents' evidentiary value, but we do not exclude them for failure of authentication.

C. Plaintiff's Disability Claims

At the heart of this case is the distinction between an employee with restrictions on his work activities and an employee with a disability. The term "disability" is a term of art for purposes of the ADA. Manifestly, an employee may be "impaired" and subject to work restrictions yet not suffer from a "disability." As we have noted elsewhere, an employer may regard an employee as "impaired" or "restricted" without necessarily regarding him as "disabled." Ragan v. Jeffboat, 149 F. Supp.2d 1053, 1067 (S.D.Ind. 2001) (and cases cited there). That is the case here.

1. Relevant Provisions of the ADA.

In view of our decision to strike Mr. Smith's failure-to-accommodate claim, only Mr. Smith's disparate treatment claim, in its three variations, survives. The ADA prohibits an employer from discriminating against a qualified individual with a disability on the basis of the disability. 42 U.S.C. § 12112(a). As noted earlier, the statute defines the term "disability" in three different ways. 42 U.S.C. § 12102(2). One is an "actual" disability — that is, a physical or mental impairment that substantially limits one or more major life activities. Section 12102(2)(A).

The second is often called a "perceived" disability, a circumstance in which the employer erroneously regards the employee as having a disability when the employee has no disability at all, or where the employee does have a disability but the employer erroneously believes that the disability is more severe than it actually is. Section 12102(2)(C); Sutton v. United Airlines, 527 U.S. 471, 489, 119 S.Ct. 2139, 2149-2150, 144 L.Ed.2d 450 (1999); Moore v. J.B. Hunt Transport, Inc., 221 F.3d 944, 950 (7th Cir. 2000).

The third is a record of disability, 42 U.S.C. § 12102(2)(B). The EEOC explains this definition in its authoritative Guidance, 29 CFR, Appendix, § 1630.2(k):

This part of the definition is satisfied if a record relied on by an employer indicates that the individual has or has had a substantially limiting impairment. The impairment indicated in the record must be an impairment that would substantially limit one or more of the individual's major life activities.

As Judge Easterbrook observed in his concurring opinion in Lawson: "The ADA does not let an employer use past disability as a reason for refusing to evaluate current abilities; thus it could not say that it does not hire persons who have ever received disability benefits." 245 F.3d, at 932-933.

All three of Mr. Smith's disparate treatment claims are governed by traditional employment discrimination proof schemes. Absent direct evidence of discrimination, to which Mr. Smith makes no claim, he may establish a prima facie case of disparate treatment under the ADA, by showing that: (1) he was "disabled" as defined by the ADA (whether "actual," "regarded as," or "record of"); (2) his work performance met WGS's legitimate expectations; (3) he suffered an adverse employment action; and (4) the circumstances surrounding the adverse action indicate that it is more likely than not that his disability was the reason for the adverse action. Zakaras v. United Air Lines, Inc., 121 F. Supp.2d 1196, 1215-1216 (N.D.Ill. 2000). See, Gorbitz v. Corvilla, Inc., 196 F.3d 879, 882 (7th Cir. 1999). Mr. Smith's disparate treatment claims — he was terminated because of his disability, or because WGS regarded him as disabled, or because he had a record of disability — rest on essentially the same set of facts and evidence.

In order to survive summary judgment, Mr. Smith must present evidence sufficient to raise two inferences: (1) that he had a disability or that WGS regarded him as disabled or that he had a record of disability; and (2) that WGS terminated him because of his disability (or because it perceived him as disabled or because he had a record of disability). Mr. Smith's evidence is legally insufficient to raise the first inference. There is insufficient evidence to conclude that, at the time he was terminated, he had a disability, whether actual or perceived or recorded.

Accordingly, we do not reach the second question. 2. Mr. Smith's Actual Disability Claim.

An actual "disability" is a physical or mental impairment that substantially limits a major life activity. One is "substantially limited" in a major life activity if he is:

(I) [u]nable to perform a major life activity that the average person in the general population can perform; or

(ii) [s]ignificantly restricted as to the condition, manner, or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity. 29 C.F.R. § 1630.2(j). See E.E.O.C. v. Sears, Roebuck Co., 233 F.3d 432, 438 (7th Cir. 2000); Davidson v. Midelfort Clinic, Ltd., 133 F.3d 499, 506 (7th Cir. 1998).

A plaintiff, such as Mr. Smith, who claims that he is substantially impaired in the major life activity of working — as contrasted with other major life activities — is subject to the requirement enunciated by the Supreme Court in Sutton v. United Airlines, 527 U.S. 471, 473, 119 S.Ct. 2139, 2142, 144 L.Ed.2d 450 (1999): he must show that he is limited not merely in his ability to perform his own job, but also that he is "significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities."(emphasis added). See 29 C.F.R. § 1630.2(j)(3)(i); Mattice v. Memorial Hospital of South Bend, 249 F.3d 682 (7th Cir. 2001); EEOC v. Rockwell International Co., 243 F.3d 1012, 1017 (7th Cir. 2001).

We first note that none of Mr. Smith's social security evidence supports his actual disability claim at the time of his termination. As we observed in ruling on WGS's motion to strike, that evidence concerns Mr. Smith's condition in July 2000 and was retroactive to December 6, 1999 (the date to which the SSA assigned Mr. Smith's eligibility for benefits). Mr. Smith was terminated on March 6, 1998, more than two years before the SSA's determination and nearly two years before the date on which SSA retroactively declared that he had been disabled. As we have noted, any determination of employer liability must be made at the time of the adverse employment decision, here March 1998. In sum, Mr. Smith's SSA evidence refers to health matters so long after the termination that it is legally irrelevant to his actual disability claim.

Next, Mr. Smith relies in substantial measure on Dr. Kern's report of March 5, 1998, which listed certain restrictions on Mr. Smith's work and which declared him to be 5% permanently disabled. Mr. Smith's work restrictions were:

No lifting over 30 pounds on an occasional basis; 15 pounds on a frequent basis;

No repetitive lifting, twisting or bending;

No sitting more than thirty minutes without a five minute break;

No sustained bending;

Occasional kneeling.

Several courts have addressed similar restrictions and none has found that they "substantially" limit the major life activity of working. See, Ragan, 149 F. Supp.2d at 1064-1065, 1072 (and cases cited there). Nor does ADA case law support the contention that a 5% permanent disability is inherently substantially limiting. See, Cole v. Mead Packaging, 2001 WL 290612 (N.D.Ill. 2001), *11 (and cases cited there); Dobrich v. General Dynamics Corp., Elec. Boat Div., 40 F. Supp.2d 90, 103 (D.Conn., 1999); Williams v. Avnet, Inc., 910 F. Supp. 1124, (E.D.N.C., 1995).

Next, it appears from Mr. Smith's own testimony that he was not substantially impaired in the major life activity of working. Although he testified that he could not perform the same tasks he could before his injury, he said he was able to perform many of his regular duties (including some that he performed as a supervisor in the field), many other tasks (which he absorbed from the other supervisors), and several other jobs. Pl. Add. Facts ¶ 51. He also asserts: "At the time when Smith was discharged from his employment, other jobs at WGS, which Smith was capable of performing, were immediately or within a short period of time available, including but not limited to the following: water restoration worker, warehouse manager, materials runner, and estimator." Pl. Add. Facts, ¶ 69. These jobs were consistent with his experience in the construction industry. Pl. Add. Facts, ¶ 70.

Mr. Smith's testimony concerning other jobs that he could perform is inconsistent with his claim that he was substantially impaired in the major life activity of working. It thus offers support for WGS's argument that Mr. Smith was not substantially limited in "a class of jobs" or a "broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities." Nor does Mr. Smith tell us which class of jobs he is not capable of performing. See Broussard v. University of California, 192 F.3d 1252 (9th Cir. 1999).

Since Mr. Smith was not substantially impaired in the major life activity of working, he was not a "qualified individual" with a disability. It follows that, even if WGS terminated Mr. Smith because of his work restrictions, it did not violate the ADA.

3. Mr. Smith's "Regarded as Disabled" Claim.

In both cases, it is necessary that a covered entity entertain misperceptions about the individual — it 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. These misperceptions often "resul[t] from stereotypic assumptions not truly indicative of . . . individual ability."

Id. See Harrington v. Rice Lake Weighing Systems, Inc., 122 F.3d 456, 459 (7th Cir. 1997); EEO Guidance on the ADA, 29 C.F.R. Appendix, § 1630.2(l).

We must first determine whether Mr. Smith was a qualified individual with a disability in the sense that WGS perceived him as disabled. If the answer is yes, then we may ask whether WGS adversely affected his employment opportunities because of its perception. Wright v. Illinois Department of Corrections, 204 F.3d 727, 730 (7th Cir. 2000). We cannot make the initial finding on the evidence that Mr. Smith presents. Accordingly, we need not reach the question of causation.

WGS acknowledges that it terminated Mr. Smith because he could not perform his job due to his permanent restrictions. Def. Facts ¶ 41. The most this admission can establish — without more — is that WGS perceived him to be impaired and, therefore, unable to perform his job as a supervisor. For this reason, WGS assigned him to a desk job, in which he also performed some of his supervisory duties, from the time of his injury in July to November, 1997. Pl. Opp. Brief, p. 5.

There is nothing erroneous about WGS's perception that Mr. Smith was impaired or its perception that he couldn't do his job. These were not misperceptions. Indeed, Mr. Smith admits that, after his back injury, he could not perform some of his central duties as a supervisor — particularly climbing roofs and engaging in strenuous physical labor — that he could before the injury. Additionally, WGS's perception that Mr. Smith could not perform his job as a supervisor is not equivalent to perceiving him as "significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities" as Sutton requires.

We note, once again, Mr. Smith's admission that on the day he was discharged he could perform numerous tasks and numerous jobs within the construction industry with which he was familiar. In addition, the fact that WGS continued to employ Mr. Smith in light duty work indicates that WGS did not perceive him to be disabled from a class of jobs or a broad range of jobs in various classes. WGS claims that it did not continue to employ him in that assignment because it had no need for the functions he was performing, not because Mr. Smith could not perform the job he was assigned or a broad range of other jobs.

In sum, we cannot permit an inference that an employer perceived his employee to be disabled for purposes of the ADA based solely on its acknowledging his work restrictions and keeping him employed in a capacity limited to those restrictions. We can think of few better ways to encourage employers to discharge employees with impairments (but not disabilities) instead of finding them work that is consistent with their restrictions than by permitting an inference from the employer's acknowledgment of the employee's restrictions that the employer discriminated on the basis of a perceived disability.

4. Mr. Smith's Record of Disability Claim.

Since Mr. Smith cannot rely on later Social Security Administration documents to establish his "record of disability" claim as of March 6, 1998, his evidence consists entirely of the form sent by Dr. Kern to WGS on March 5, 1998 in which the doctor placed Mr. Smith on work restrictions and stated that Mr. Smith was permanently impaired to 5% of a person. Mr. Smith argues that the close proximity in time between announcing the permanent impairment (March 5) and his discharge (March 6) raises an inference that he was fired because of the record. But Mr. Smith admits that the restrictions outlined in the March 5 form were not substantially different from those he had been subject to since his injury in July 1997, and in the interval, WGS continued to employ him. In other words, nothing had changed. Accordingly, any inference of causation that he may have enjoyed by the apparent proximity between WGS receiving the form and discharging him dissipates.

Additionally, the statute provides protection for a person with "a record of such an impairment." 42 U.S.C. § 12102(2)(b). In other words, the record must be a record of an impairment that substantially limits the major life activity of working. On March 6, 1998, the record from Dr. Kern was not a record of "such" a disability. For the reasons already discussed in the context of his "regarded as" claim, Mr. Smith did not have a record of a "disability." His evidence establishes no more than that he had a record of an impairment that limited him in the performance of his job, and not an impairment that substantially limited him in the major life activity of working.

IV. Conclusion.

Mr. Smith's disparate treatment case, in all three of its variants, fails at the prima facie stage because Mr. Smith has not presented evidence sufficient to raise an inference that he had a disability as that term is defined by the ADA. Accordingly, in addition to resolving the parties' motions to strike as we discussed earlier, we GRANT defendant's motion for summary judgment as to Mr. Smith's disparate treatment claims and enter judgment in favor of WGS pursuant to Fed.R.Civ.P. 56.