Raymond D. Wright v. Illinois Department of Corrections

ILANA DIAMOND ROVNER, Circuit Judge,

dissenting.

My colleagues today conclude surprisingly that the record would not permit a reasonable factfinder to infer that the Department of Corrections perceived Wright to be disabled. Certainly a jury, after hearing the evidence, might conclude as my colleagues have that the Department viewed Wright as perfectly capable of working as a prison guard. However, to hold as a matter of law that this is the only permissible conclusion ignores quite strong evidence — not the least of which being the Department’s own admission via interrogatory — that the Department harbored substantial reservations about Wright’s ability to work. In the face of that evidence, I have no choice but to dissent.

As my colleagues emphasize, things went swimmingly for Wright in the initial stages of the employment process. He passed all of the tests that were administered at the screening session, including the fairly strenuous five-step agility test described in the majority opinion. Ante at 731 & n. 3; see Appendix of Appellant (“App.”) 15 (Wright Aff. at 2 ¶ 5); App. 138-39 (Correctional Officer/Youth Supervisor Trainee Physical Agility Test). When, during the oral interview, Wright raised the possibility that he might not be able to run for lengthy periods of time because of his ankle injury, he was assured based on the test results that he would have no difficulty handling the physical demands of the job (see ante at 731-32) and that he could obtain a waiver releasing him from any prolonged running at the Department’s training academy. See ante at 728; App. 15 (Wright Aff. at 2 ¶ 6); see also App. 71 (Dep. of Karla Klindworth at 11); App. 85 (Dep. of Janette Routien at 22); App. 101 (Dep. of Rick Dunbar at 26); App. 113, 114 (Dep. of Harry Marshall at 12, 17). As of that juncture, then, the Department evinced no concern that Wright had any significant limitations that rendered him unqualified to serve as a corrections officer. To the contrary, Wright was placed on the eligibility list for hiring. If the record went no further, there would indeed be no basis to infer that the Department perceived him as disabled.

When Wright subsequently reported to the Robinson Correctional Center for orientation, however, rather clear hints of a different attitude began to emerge. When asked to explain the “I’m outta there” remark he purportedly made when the subject of marching came up, Wright indicated that his ankle injury prevented him from walking, sitting, or standing (and thus from running and marching) for prolonged periods of time, although, according to the Department’s own report of this session, Wright seems to have also indicated that he would be “fine” as long as he had access to a gymnasium. App. 144 (April 20, 1995 IDOC Mem. from Janette Routien & Connie Clough to Chuck Williams); see also App. 6 (Complaint at 2 ¶ 12); App. 10 (Answer at 2 ¶ 12); App. 16 (Wright Aff. at 3 ¶ 11). Wright did not express doubt that he could otherwise handle the job, and at no time has the Department indicated that an inability to march or run for prolonged periods would leave Wright unable to work as a corrections officer. See App. 6 (Complaint at 2 ¶ 12); App. 10 (Answer at 2 ¶ 12); App. 15, 16 (Wright Aff. at 2, 3 ¶¶ 6-7, 11).

Yet, Wright returned home from the orientation session to find a message on his telephone answering machine from Lynette Jones, the Department’s employment screening coordinator. When *734Wright returned the call, Jones informed him that the Department had “overlooked” his “disability” and that he would not be hired at Robinson as a result of that disability. Ante at 728-29; see App. 16-17 (Wright Aff. at 2-3 ¶ 12). As Wright recounts the conversation, he reminded Jones that he had passed the physical agility test and assured her that he was fully capable of meeting the demands of the job. App. 16 (Wright Aff. at 2 ¶ 12.) He also asked that he be permitted to report for a physical examination with the other new Robinson hires several days later. App. 16-17 (Wright Aff. at 2-3 ¶ 12). Jones refused, reiterating that the Department was no longer considering him for employment. App. 16-17 (Wright Aff. at 2-3 ¶ 12).

Jones’ remarks to Wright constitute direct evidence that the Department perceived Wright to be disabled. At that point, the Department quite obviously deemed Wright incapable of working as a correctional officer — thus its unqualified refusal to consider him further for a position at Robinson or any other correctional facility. See, e.g., Cline v. Wal-Mart Stores, Inc., 144 F.3d 294, 303 (4th Cir.1998); Deane v. Pocono Medical Ctr., 142 F.3d 138, 149 (3d Cir.1998). My colleagues attempt to explain away this turn of events by suggesting that the Department simply “took Wright at his word and informed him that, in light of his declaration that he was not up to the physical demands of training, he would not be hired.” Ante at 732. I must confess to being perplexed by this suggestion.

I am not certain that any reading of the record would support the inference that Wright had ever declared himself unable to surmount the physical demands of training, as my colleagues suggest he had; but, more to the point, the favorable interpretation of the record to which Wright is entitled on summary judgment is wholly inconsistent with that notion. Wright’s own affidavit indicates that when the subject of running and marching was raised at the orientation, he simply asked what he would have to obtain from his physician in order to be exempted from prolonged running. App. 16 (Wright Aff. at 3 ¶ 11). (Even the report prepared by the individuals who conducted the orientation session indicates that Wright expressed reservations only with respect to marching, not with any other aspect of training or work as a correctional officer.) See App. 144 (April 20, 1995 IDOC Mem. from Janette Routien & Connie Clough to Chuck Williams). Wright also avers that when Jones informed him that the Department was removing him from the eligibility list in view of the “disability” which until then it had “overlooked,” he repeated to her what the Department’s own personnel had previously assured him: that his ability to successfully complete the agility test indicated that he was fully up to the physical rigors of the job. App. 16 (Wright Aff. at 8 ¶ 12). Moreover, when Wright demanded that he be permitted to proceed with the physical examination being administered to the other new hires — an examination during which his physical limitations presumably could have been explored — Jones refused. Id. at 16-17 (Wright Aff. at 3-4 ¶ 12). All of this bespeaks sudden reservations on the part of the Department, not Wright, that his ankle injury was disabling. The record makes perfectly clear that Wright was at most requesting an accommodation; and a reading of the record favorable to Wright makes equally clear that the Department refused.

It is true that the Department eventually relented and scheduled a physical examination for the purpose of assessing whether Wright was capable of work as a correctional officer. See ante at 732. What my colleagues appear to have forgotten in addressing this examination, however, is that the Department scheduled the exam only after Wright’s State Representative intervened on his behalf. See ante at 729 (“This second call [from Wright’s Representative] resulted in the Department’s scheduling Mr. Wright for a *735special medical exam.”); App. 17 (Wright Aff. at 4 ¶ 13). A fair inference to be drawn in Wright’s favor, then, is that the Department “decided to give the case a closer look” (ante at 732) only after Wright made trouble. My colleagues, however, posit that “[t]he Department scheduled the appointment only after Mr. Wright had himself questioned his ability to participate in certain aspects of the training program.” Ante at 732. With respect, I submit that this notion is mistaken in two respects. First, accepting Wright’s recitation of events as true, the Department scheduled the appointment after it not only questioned Wright’s ability to train for the job, but removed him from the eligibility list altogether. See App. 16-17 (Wright Aff. at 3-4 ¶ 12). Second, Wright never questioned his own ability to do or train for the job; he merely questioned his ability to run or march for prolonged periods during training. See App. 15, 16 (Wright Aff. at 2, 3 ¶¶ 6, 11); App. 144 (April 20, 1995 IDOC Mem. from Janette Routien & Connie Clough to Chuck Williams). And at no time has the Department suggested that an inability to engage in prolonged running or marching disqualified Wright from work as a correctional officer. Wright, in fact, was given assurances to the contrary. App. 15 (Wright Aff. at 2 ¶¶ 6-7).

Should more be needed to confirm that there is a live dispute as to the Department’s perception of Wright, there is — last but not least — the Department’s own un-qualifiedly affirmative answer to the interrogatory inquiring whether the Department considered him to be disabled. App. 190 (Answers to Plaintiffs First Set of Interrogatories Directed to Defendant at 15 No. 12). Notably, the Department’s “yes” answer was not based on anything Wright purportedly said during the hiring process, but rather the disclosure on his application form that Wright had left both the Marine Corps and a subsequent job due to ankle injuries. See id., No. 12a. Although this answer certainly does not amount to a binding, judicial admission that the Department perceived Wright to be disabled (see generally Keller v. United States, 58 F.3d 1194, 1198-99 n. 8 (7th Cir.1995)), it nonetheless constitutes admissible evidence of that perception. See 4 Christopher B. Mueller and Laird C. Kirkpatrick, Federal Evidence § 418, at 257 (2d ed.1994). Having secured the Department’s evidentiary admission that it considered him to be disabled, I am certain that it comes as quite a surprise to Wright to learn today that “[tjhere is simply nothing in the record” suggesting that the Department so perceived him. Ante at 732. Even if there were no other evidence that the Department harbored such a perception, the interrogatory answer itself stands as such evidence.

Finally, one may readily infer from the record that the Department perceived Wright to have a substantially limiting impairment, as opposed to a more mundane one. Wright, of course, believes that his ankle problem poses nothing more than minor limitations on any of his life activities; and initially, it appeared that the Department’s perception jibed with his own. Again, the only reservation that Wright ever expressed had to do with the marching and running components of the Department’s training regimen; and during the screening process, Department personnel assured him that he could obtain a waiver releasing him from such activities. Yet, after the orientation session at Robinson, the Department informed Wright that he would not be hired because of the “disability” that the Department, until then, had “overlooked.” This about-face suggests that the Department had come to view Wright’s limitation as much more far-reaching than it did at first — so much so that it removed Wright’s name from the eligibility list altogether, it refused his request that he be examined by the Department’s physician along with the other trainees, and eventually (after his State Representative intervened) ordered him examined by a doctor that no other trainee saw. All of this bespeaks a perception, not *736of a modest, controllable limitation, as Wright himself viewed it, but of a condition that imposed significant limitations on such major life activities as working, walking, and so on. And once again, the confirmation is supplied by the Department’s interrogatory response. Citing Wright’s discharge from the Marine Corps and from a subsequent job because of his injured ankle, the Department conceded that it considered Wright to be disabled. App. 190 (Answers to Plaintiffs First Set of Interrogatories Directed to Defendant at 15 No. 12). That the Department believed Wright incapable of work as a corrections officer because he had been discharged from two other (distinctly different) jobs sends a clear signal that it perceived the restrictions stemming from his ankle injuries to be substantial, rendering him unable to perform a broad class of employment. See Riemer v. Illinois Dep’t of Transp., 148 F.3d 800, 807 (7th Cir.1998).

Accepting Wright’s version of events as true, the Department’s initial confidence that he was capable of work as a correctional officer vanished when Wright began to inquire about securing a waiver from prolonged running and marching during training (as Department personnel had suggested he could). The Department removed him from the hiring eligibility list, informing him that it had “overlooked” the “disability” he had disclosed on his employment application. Later, in the course of discovery, the Department would even admit, in writing and under oath, that it considered Wright to be disabled. What more support Wright needs for the inference that the Department perceived him to be disabled is beyond me.

I respectfully dissent.