In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-1423
TAMARA WATSON,
Plaintiff-Appellant,
v.
LITHONIA LIGHTING AND
NATIONAL SERVICE INDUSTRIES, INC.,
Defendants-Appellees.
____________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. IP 00-1744-C-M/S—Larry J. McKinney, Chief Judge.
____________
ARGUED SEPTEMBER 6, 2002—DECIDED SEPTEMBER 20, 2002
____________
Before POSNER, EASTERBROOK, and DIANE P. WOOD,
Circuit Judges.
EASTERBROOK, Circuit Judge. In July 1997 Tamara
Watson went to work on the assembly lines of Lithonia
Lighting in Crawfordsville, Indiana. Ten months later she
suffered a shoulder injury that restricted her ability to
perform the repetitive motions characteristic of assembly-
line work. Lithonia assigned Watson a series of tasks that
she remained able to complete. In June 1999 Watson’s
physician informed Lithonia that she would never again
be able to perform any tasks that require repetitive mo-
tion of her upper right arm. Lithonia, which says that it
2 No. 02-1423
requires all assembly-line workers to rotate through all
positions (the better to avoid repetitive-stress injuries),
concluded that it had no manual jobs available for some-
one with Watson’s limitations, and it let her go. She sued
under the Americans with Disabilities Act, contending
that Lithonia should have given her as an accommoda-
tion on a permanent basis the sort of positions she held
between May 1998 and June 1999.† The district court
granted summary judgment in Lithonia’s favor, ruling
that it need not create a new position suited to her phys-
ical restrictions. 2002 U.S. Dist. LEXIS 4361 (S.D. Ind.
Jan. 14, 2002). That was a sound ruling. Even if Watson
is “disabled” as the ADA uses that word in 42 U.S.C.
§12102(2)(A)—a doubtful proposition given the view that
Toyota Motor Manufacturing, Kentucky, Inc. v. Williams,
534 U.S. 184 (2002), took of repetitive-motion injuries—
she was entitled only to a “reasonable” accommodation, and
we have held that it is not “reasonable” to require an em-
† The complaint named as defendants Lithonia Lighting and its
corporate parent National Service Industries, Inc. Watson does
not explain on what basis a parent corporation could be held
liable, though National Service makes nothing of this. And it
is not clear that any entity known as “Lithonia Lighting” exists
today—or ever did. Lithonia Lighting appears to be a trade
name for a line of products, not the name of any corporation. Cf.
Schiavone v. Fortune, 477 U.S. 21 (1986). According to Lithonia’s
web site, its corporate name is Acuity Lighting Group, Inc., and
it is no longer National Service’s subsidiary (having been spun
off in November 2001 as a subsidiary of a newly formed Acuity
Brands, Inc.). Yet the Rule 26.1 disclosure statement of defen-
dants’ brief, filed in May 2002, asserts that a “Lithonia Lighting”
is a wholly owned subsidiary of National Service Industries. If
it is or was a subsidiary, however, it must be a corporation, yet
“Lithonia Lighting” does not include a corporate identifier (though
“Acuity Lighting Group, Inc.” does). We use “Lithonia Lighting”
in the text without making further attempts to determine the
identity and ownership of Watson’s former employer.
No. 02-1423 3
ployer to create new jobs tailored to each employee’s abil-
ities. See, e.g., Mays v. Principi, No. 01-4227 (7th Cir. Sept.
5, 2002); Hansen v. Henderson, 233 F.3d 521, 523-24 (7th
Cir. 2000).
Watson concedes that, if all manual workers indeed ro-
tate through all positions on Lithonia’s assembly line, then
it offers no jobs that she can perform, so that she is not
“otherwise qualified”. See 42 U.S.C. §12112(b)(5)(A). See
also, e.g., Miller v. Illinois Department of Corrections, 107
F.3d 483, 485 (7th Cir. 1997). Moreover, Watson admits
that rotation is Lithonia’s norm and serves a business
purpose; it is not a scheme cooked up to avoid obliga-
tions under the ADA. Rotation not only reduces the risk
of injury caused by long-term repetition of particular
motions but also, by qualifying every worker to perform
each task on the line, facilitates production by making
it easier for the firm to substitute among workers when
some go on vacation or fail to appear without warn-
ing. Nonetheless, Watson contends that Lithonia makes
exceptions to rotation—and if it makes exceptions for
other employees, Watson insists, then it must accommo-
date her by making another.
One aspect of this contention appears in an affidavit
that Watson filed. According to this affidavit, two employ-
ees have been allowed to do a subset of all assembly-line
tasks rather than rotate through all of them. The difficulty
with this submission is that Watson does not explain how
she learned this or offer evidence from anyone with per-
sonal knowledge (such as one of the employees in question
or a supervisor who assigns employees to tasks). Yet Fed.
R. Civ. P. 56(e) provides: “Supporting and opposing affida-
vits shall be made on personal knowledge, shall set forth
such facts as would be admissible in evidence, and shall
show affirmatively that the affiant is competent to testify
to the matters stated therein.” Affidavits offered in sup-
port of or opposition to summary judgment create an
4 No. 02-1423
issue of fact only to the extent that they provide evidence
that would be admissible if offered live on the witness
stand. See Eisenstadt v. Centel Corp., 113 F.3d 738, 742
(7th Cir. 1997). Watson’s affidavit was not based on per-
sonal knowledge and did not imply the availability of
any admissible evidence. That leaves Lithonia’s evidence
uncontested.
There remains the possibility that Lithonia has non-
rotating positions or slots that always are filled, though
by a changing cast of characters. An employer might
establish a pool of light-duty positions (or other subsets
of the full tasks) suited to employees recovering from
injuries. See Hendricks-Robinson v. Excel Corp., 154 F.3d
685, 696 (7th Cir. 1998). Lithonia provided such an accom-
modation to Watson so that she could continue work-
ing after her injury. This benefits not only the employee
(by providing income and helping to keep skills honed)
but also the employer, which can have experienced work-
ers available for reassignment once they recover. This
is exactly what the ADA encourages. Watson contends
that, if an employer goes this far, it must allow an in-
jured employee to occupy the light-duty (or limited-task)
position indefinitely. Yet this would be bad news for the
rest of the labor force. If an employer set aside, say, five
positions for use by assembly-line workers recovering
from repetitive-motion stress, on Watson’s view the first
five to occupy these positions would be entitled to keep
them indefinitely. That would close the positions to other
workers who might have been able to use them during re-
covery—and it would increase the frequency of repetitive-
motion injuries in the workplace. For if the employer
must station five workers at positions that do not re-
quire particular motions (such as movements of the upper
right arm), other assembly line workers will be forced
to spend a greater portion of their time in those posi-
tions and will be more exposed to repetitive-motion in-
No. 02-1423 5
jury as a consequence. If injured workers occupy the
five restricted-duty positions only temporarily, during
recovery, this can be avoided: a given employee might
be held off a line that requires the use of air guns (and
thus the right shoulder) for a time, but her successor
may be able to use air guns while refraining from con-
necting wires. Because the set of tasks allocated to the
recovery positions would change with the occupants, an
employer could maintain a rotation system for the work-
place as a whole. Once the positions are permanently
assigned, however, the rotation system is foiled and its
benefits lost. Watson’s position, if adopted, thus would
simultaneously increase the incidence of workplace in-
jury and diminish the employer’s ability to accommod-
ate employees who have transient conditions.
We conclude that the ADA does not require an employer
that sets aside a pool of positions for recovering employ-
ees to make those positions available indefinitely to an
employee whose recovery has run its course without re-
storing that worker to her original healthy state. A per-
son is “otherwise qualified” within the meaning of the
ADA only if she can perform one of the regular jobs (with
or without an accommodation). Watson cannot perform
any assembly-line job at Lithonia; what she wants is a
different job, comprising a subset of the assembly-line
tasks, rather than an accommodation in the performance
of one of Lithonia’s existing assembly-line jobs (all of
which entail all tasks). Because the ADA does not require
employers to create new positions, the judgment of the
district court is
AFFIRMED.
6 No. 02-1423
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-97-C-006—9-20-02