NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued December 13, 2006
Decided January 11, 2007
Before
Hon. RICHARD A. POSNER , Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 05-4009
BRENT L. MILLER, Appeal from the United States District
Plaintiff-Appellant, Court for the Northern District of
v. Illinois, Eastern Division
No. 02 C 2286
AMERITECH CORPORATION,
Defendant-Appellee. Joan Humphrey Lefkow,
Judge.
ORDER
After agreeing in a workers’ compensation settlement to pay Brent Miller for
the next 29 years due to his “alleged incapacity to pursue his employment,”
Ameritech terminated him in 1998 from his position as a cable splicing technician.
Miller sued Ameritech for not accommodating his disability and for retaliating
against him in violation of the Americans with Disabilities Act. The district court
granted summary judgment in Ameritech’s favor on both claims. We affirm.
Brent Miller began working at Ameritech as a cable splicing technician in
early 1992. Within a year on the job, he suffered a hernia that required surgery.
Following surgery in 1993, Miller began to suffer from groin, testicular, knee, back
No. 05-4009 Page 2
and hip pain, pain during sexual intercourse, urine leakages, stomach ulcers,
migraines, weakness in his right leg, back spasms, and fibromyalgia.
Miller went on workers’ compensation leave for the remainder of 1993, and
returned to Ameritech on light duty for the first half of 1994. During this period,
Miller asked his supervisor, Jevan Jaszekowski, if he could transfer to a work site
closer to home. Jaszekowski responded sarcastically, “I suppose if you move to
fucking Paris, we would have to transfer you there as well.” In addition, Kevin
Kantor, the human resources official responsible for administering workers’
compensation, denied the transfer and often complained to Miller about the number
of medical bills Ameritech was paying on his behalf.
In late 1994 Miller underwent a second surgery, went back on workers’
compensation, and performed no more work for Ameritech. In 1997 Miller says that
he asked to return to work with accommodations. At that time, Miller asked his
then-attorney to inform Ameritech that he wanted: (1) a bucket truck assignment
and no ladder climbing; and (2) no lifting of more than seventy pounds without
assistance. But according to Ameritech’s job description and qualifications for a
cable splicing technician, the technician must be able to work in manholes,
trenches, and on poles and ladders. And at his deposition, Miller admitted that on
any given day, a cable splicing technician might need to climb ladders and lift heavy
objects.
In January 1998 Miller settled his workers’ compensation claim with
Ameritech. According to the settlement, payments to Miller were to continue “for
the remaining 29.8 years of [his] alleged incapacity to pursue his employment.”
Citing the settlement agreement, Ameritech terminated Miller in April 1998.
Miller’s medical problems appear to stem from nerve damage that occurred
during his first surgery. Dr. Samuel Elias, an orthopedic surgeon who began
treating Miller in 1995, explained that “it is pretty standard anatomical knowledge”
that the nerves which Miller damaged can affect the gait, and that he believed
Miller’s medical problems resulted from a change in gait patterns. But when
Ameritech asked Dr. Elias at his deposition whether Miller was substantially
limited in “performing manual tasks, walking, seeing, hearing, speaking, breathing,
learning, and working” in 1998, Dr. Elias responded, “the answer is no.”
Miller himself provided seemingly contradictory assessments of his own
condition. At his deposition, Miller was asked, “so you felt you were not
substantially limited in any major life activity at the time of your discharge, right?”,
to which Miller responded, “correct.” But in paragraph six of an affidavit he
submitted in opposition to summary judgment, Miller asserted that “since 1993,
including during 1997 and 1998” his conditions “have substantially limited by [sic]
No. 05-4009 Page 3
ability to engage in sexual relations, urinate, walk long distances, stand or sit for
long periods of time, climb ladders safely and drive long distances.”
In 2002 Miller sued Ameritech in federal court alleging discrimination and
retaliation in violation of the ADA. The district court granted summary judgment
in Ameritech’s favor on both claims. The court first struck paragraph six of Miller’s
affidavit, finding that it contradicted his deposition testimony where he stated that
he was not substantially limited in a major life activity. Then, finding Miller’s
deposition testimony dispositive of the issue, the court concluded that Miller was
not disabled within the meaning of the ADA, and thus could not sustain his
discrimination claim. As to Miller’s retaliation claim, the court concluded that
Miller did not meet his burden under the indirect method, and could not proceed
under the direct method because he had not presented any direct evidence.
We review the district court’s grant of summary judgment de novo. Rudin v.
Lincoln Land Cmty. Coll., 420 F.3d 712, 719 (7th Cir. 2005). The nonmovant, here
Miller, bears the burden of coming forward with properly supported arguments or
evidence to show the existence of a genuine issue of material fact. Treadwell v.
Office of Ill. Sec’y of State, 455 F.3d 778, 781 (7th Cir. 2006).
We turn first to Miller’s discrimination claim. The ADA protects only
“qualified individual[s] with a disability” from discrimination. 42 U.S.C. § 12112(a).
The ADA defines a disability as “a physical or mental impairment that
substantially limits one or more of the major life activities. . . ”, id. § 12102(2)(A),
and defines a qualified individual as a person “who, with or without reasonable
accommodation, can perform the essential functions of the employment position
such individual holds or desires”, id. § 12111(8).
Miller argues that the district court erroneously found him not to be disabled.
He explains that he misunderstood the question posed at his deposition about
whether he was “substantially limited in a major life activity.” He asserts that the
legal significance of that phrase confused him, and contends that paragraph six of
his affidavit clarifies his response by describing his limitations in specifically
factual, rather than legal, terms. He argues, therefore, that the district court
should not have struck the paragraph. Miller contends that if the district court had
considered paragraph six, the court would have found “more than sufficient
evidence” of a question of fact concerning whether he has a disability because the
paragraph tends to establish that he is “substantially limited” in “major life
activities.”
We review the striking of an affidavit in a motion for summary judgment for
an abuse of discretion. Balderstein v. Fairbanks Morse Engine Div. Coltec Indus.,
328 F.3d 309, 318 (7th Cir. 2003). A party cannot defeat summary judgment by
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creating “sham issues of fact with affidavits that contradict their prior depositions.”
Ineichen v. Ameritech, 410 F.3d 956, 963 (7th Cir. 2005). Thus, “when a deposition
and an affidavit are in conflict, the affidavit is to be disregarded unless it is
demonstrable that the statement in the deposition was mistaken, perhaps because
the question was phrased in a confusing manner. . . .” Velez v. City of Chicago, 442
F.3d 1043, 1049 (7th Cir. 2006) (quoting Amadiu v. Ford Motor Co., 278 F.3d 919,
926 (7th Cir. 2001).
Miller might very well have been confused at his deposition. Deciphering the
meaning of the statutory language “substantially limited in a major life activity”
has, after all, been the elusive goal of numerous regulations, circuit court opinions,
and two Supreme Court certiorari grants. See 45 C.F.R. § 84.3(j)(2)(I) (2001); 29
C.F.R. § 1630.2(j)(I); Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184 (2002);
Albertson’s Inc. v. Kirkingburg, 527 U.S. 555 (1999); EEOC v. Sears, Roebuck & Co.,
417 F.3d 789, 797-802 (7th Cir. 2005).
But we need not decide whether striking paragraph six amounted to an abuse
of discretion because the paragraph does not—as Miller insists—help create a
genuine issue of fact regarding his possible disability. “To survive summary
judgment, a plaintiff must provide specific facts as to whether he is substantially
limited in a major life activity . . . conclusory allegations will not do.” Scheerer v.
Potter, 443 F.3d 916, 919 (7th Cir. 2006). Paragraph six, however, does not
specifically identify—as the law requires—the major life activity in which Miller
purports to be substantially limited. See Sinkler v. Midwest Prop. Mgmt. Ltd.
P’ship, 209 F.3d 678, 683 (7th Cir. 2000). And although we have recognized that of
the activities listed, walking and sexual reproduction are major life activities, see
Scheerer, 443 F.3d at 919, paragraph six contains no evidence tending to establish
that Miller’s limitations are substantial. For example, when walking is the major
life activity at issue, a plaintiff must demonstrate that his limited ability to walk is
permanent or covers a long period of time and is considerable compared to the
walking most people do in their ordinary lives. See Sears, 417 F.3d at 802. But
paragraph six does not indicate how far Miller is unable to walk, why he is unable
to walk, or how long he likely will be unable to walk.
In addition, even if Miller were disabled for ADA purposes, his discrimination
claim would still fail because he is not a “qualified individual” for the position of
cable splicing technician. Miller, without elaboration, baldly asserts that with a
bucket truck assignment and a co-worker to do his heavy lifting, he is qualified.
But the ADA protects only disabled individuals who—when reasonably
accommodated—can still perform the essential functions of their position. See 42
U.S.C.§ 12111(8). In other words, “[w]hen accommodated, the worker must be able
to do the job as configured by the employer; not his own conception of the job.”
Hansen v. Henderson, 233 F.3d 521, 524 (7th Cir. 2000). According to Ameritech’s
No. 05-4009 Page 5
job description and Miller’s own admission, the tasks he sought exemption
from—climbing ladders and heavy lifting—were essential functions of the job. See
Rooney v. Koch Air, LLC, 410 F.3d 376, 382 (7th Cir. 2005) (looking to the
employer’s judgment, written job descriptions, the amount of time spent on the
function, and the experience of those who previously or currently hold the position
to determine whether a job function is essential). Placing a co-worker at Miller’s
disposal to perform these functions for him would not be a “reasonable
accommodation.” We have explained that “the courts have been reticent, as they
should be, to require employers to provide accommodations that necessitate the
enlistment of another employee to assist an ADA claimant in performing the
essential functions of the job.” Hammel v. Eau Galle Cheese Factory, 407 F.3d 852,
867 (2005) (citations omitted). Summary judgment on Miller’s discrimination claim
was properly granted.
We turn next to Miller’s retaliation claim. The ADA prohibits retaliation
against “any individual” who has opposed an act or practice made unlawful by the
ADA. 42 U.S.C. § 12203(a). To prove retaliation, a plaintiff may use either the
direct or indirect method. See Treadwell, 455 F.3d at 781.
Miller argues that Jaszewski’s and Kantor’s comments constitute sufficient
circumstantial evidence to defeat summary judgment under the direct method. He
contends that the district court erroneously concluded that the direct method was
foreclosed to him because he had not presented any “direct evidence.”
Although plaintiffs may proceed under the direct method provided that they
adduce either direct evidence or circumstantial evidence that would entitle a jury to
conclude that an employer acted because of a forbidden animus, see Sylvester v.
SOS Children’s Villages Ill, Inc., 453 F.3d 900, 902-03 (7th Cir. 2006), Miller has
failed to produce even sufficient circumstantial evidence to survive summary
judgment under the direct method. To have done so, Miller must have established a
causal connection between his protected activity and the adverse employment
action that he suffered. Treadwell, 455 F.3d at 781. This causal connection cannot
be demonstrated through “[s]tray remarks made by nondecisionmakers.” Mlynczak
v. Bodman, 442 F.3d 1050, 1057-58 (7th Cir. 2006) (citation omitted). But there is
no evidence that either Jaszewski or Kantor had any involvement in the decision to
terminate Miller. And even if they were meaningfully involved, their purported
comments do not demonstrate that either of them harbored a retaliatory animus:
they made these comments before Miller filed his charge with the EEOC, and before
he asked to return to work with accommodations. Thus, under the direct method,
Miller has not met his burden. (Miller does not argue in his brief that the district
court improperly granted summary judgment under the indirect method, and so any
such argument is waived. Moore v. J.B. Hunt Transport Inc., 221 F.3d 944, 951
(7th Cir. 2000).)
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Accordingly, the judgment is AFFIRMED.