Opinion
Cause No. IP 98-1494-C H/G.
December 21, 2000.
ENTRY ON RENEWED MOTION FOR SUMMARY JUDGMENT
On March 28, 2000, this court denied defendant Swifty Oil Company's motion for summary judgment on the claim of plaintiff Estate of Wilford Orme under the Americans with Disabilities Act (ADA). The court found that disputed issues of material fact barred summary judgment on plaintiff's claim that Swifty Oil fired Orme because it regarded him as disabled. See 42 U.S.C. § 12102(2)(C) (definition for "regarded as" disability).
After Swifty Oil took the deposition of a witness whose affidavit had been submitted by plaintiff in opposing summary judgment, Swifty Oil filed a renewed motion for summary judgment that is now ripe for decision. In essence, Swifty Oil contends that the deposition testimony from Charles Reeves provides a context for several key statements in his affidavit and explains Reeves' testimony in ways that show summary judgment should be granted. As explained briefly below, and without repeating unduly the analysis spelled out in the court's earlier entry, defendant's renewed motion is denied.
Reeves' deposition testimony would allow a jury to treat Dembec's and Marcum's statements in ways that would not reflect an intent to fire Orme because they regarded him as disabled. Nevertheless, the testimony would not require the jury to treat their statements in those ways. For example, defendant argues that Dembec's statements in 1995 about needing to replace Orme if he could not return to work were merely references to defendant's long-term disability policy of replacing employees who were absent from work on disability for six months. A careful review of Reeves' deposition testimony shows, however, that it was defendant's counsel who introduced the six-month disability policy, and that Reeves did not testify that Dembec referred to the policy at all. Reeves Dep. 53-54. The link to the six-month policy was only something that Reeves inferred from Dembec's statement:
Q And did you tie that [comment by Dembec], as you understood it, in with the long-term disability issue?
A That's what I figured.
Q Okay. So, in other words, if he doesn't get back within the six months, we're going to have to replace him.
A Right.
Reeves Dep. 54. When Reeves was asked moments earlier, "did Walt [Dembec] ever make a comment about his [Orme's] coming back and he needed to get back before that six months period," Reeves answered, "No, he never said nothing like that." Reeves Dep. 53.
The relevant evidence here is what Reeves heard Dembec say, and under what circumstances. Reeves' interpretation linking the statement to the long-term disability policy may not even be admissible, even apart from counsel's efforts to rephrase the statements attributed to Dembec. The inferences to be drawn from that evidence about Dembec's state of mind regarding Orme will be up to the jury, as long as they are reasonable.
Defendant points out correctly that the Seventh Circuit has rejected as circular arguments "regarded as" disability claims based on a discharge and a medical condition alone, at least where there is no evidence that the plaintiff was substantially limited in performing his own job. See Harrington v. Rice Lake Weighing Systems, Inc., 122 F.3d 456, 461 (7th Cir. 1997) (affirming summary judgment where all medical reports foretold a full recovery; "The notion that [defendant] must have fired [plaintiff] because it regarded him as disabled and that it plainly regarded him as disabled because it fired him is attractive but circular — it lacks a causal antecedent."); see also Krocka v. City of Chicago, 203 F.3d 507, 514-15 (7th Cir. 2000) (affirming summary judgment on "regarded as" theory of disability where employer evaluated plaintiff and allowed him to keep working without restrictions).
In this case, however, plaintiff has gone further and has raised a genuine issue of fact as to whether defendant's proffered reason for firing Orme — his failure to detect subordinates' embezzlement scheme — was a false pretext for the firing. Plaintiff also has evidence that defendant regarded Orme's heart condition as impairing his performance of his own job. See Riemer v. Illinois Dep't of Transportation, 148 F.3d 800, 806 n. 8 (7th Cir. 1998) (affirming jury verdict for plaintiff on "regarded as" claim and distinguishing Harrington on ground, among others, that plaintiff produced evidence that employer regarded him as substantially limited in his job and in the "major life activity" of breathing). Viewed in the light reasonably most favorable to plaintiff, the combination of firing Orme for a false reason right after his heart began to give him renewed trouble in early March 1997, along with the evidence of Dembec's and Marcum's negative perceptions of Orme's heart condition and its effects on his work, would permit a verdict in plaintiff's favor if the jury infers that defendant viewed Orme as substantially limited with respect to a broad class of jobs.
The court has noted the parties' arguments concerning each side's dealings with witness Reeves. The circumstances of both the affidavit and the deposition may be raised at trial to the extent they provide evidence relevant to Reeves' credibility.
The court has also noted defendant's invitation to reconsider the court's reasoning on the breadth of the "regarded as" impairment based on circumstantial evidence. The court has reviewed the cited cases and finds no persuasive basis for reaching a different result on the question at this time. For example, in Moore v. J.B. Hunt Transport, Inc., 221 F.3d 944 (7th Cir. 2000), there was no issue of pretext. Instead, the employer had fired the plaintiff because specific restrictions imposed by the plaintiff's doctor precluded him from continuing in his position, and because the employer had no other positions that the plaintiff could fill. 221 F.3d at 949, 954-55. The other cases indicate that the Seventh Circuit has not yet defined just what types and quantities of evidence will be sufficient to permit an inference of "regarded as" disability in terms of a broad class of jobs. The Seventh Circuit's decision in Skorup v. Modern Door Corp., 153 F.3d 512, 515-16 (7th Cir. 1998), lends support to defendant, but Skorup also does not explain clearly what evidence would be sufficient to meet this standard. See Palao v. Fel-Pro, Inc., 117 F. Supp.2d 764, 768 (N.D. Ill. 2000) (with respect to the "substantially limited" requirement for actual disability claims, commenting that Skorup "only demanded that plaintiffs produce evidence from which a court can determine `general guideposts,' such as whether her impairment forecloses her from accepting few, many, or most of the jobs in a particular class or broad range of classes."). Nevertheless, the Seventh Circuit has indicated that a finder of fact is entitled to draw inferences from circumstantial evidence on the issue. See Sinkler v. Midwest Property Mgmt. Ltd. Partnership, 209 F.3d 678, 686-87 (7th Cir. 2000) (affirming summary judgment where only reasonable inference from circumstantial evidence was that employer regarded plaintiff as unable to do only her own job, not a broad class of jobs).
Accordingly, defendant's renewed motion for summary judgment is hereby denied. The case remains set for jury trial on January 22, 2001, with a final pretrial conference on January 12, 2001, at 2:00 p.m.
So ordered.