Shea, Dennis v. Lovejoy, Inc

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 5, 2005*
Decided July 8, 2005
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. RICHARD A. POSNER, Circuit Judge
Hon. FRANK H. EASTERBROOK, Circuit Judge
No. 04–2609
Appeal from the United States District
DENNIS SHEA, Court for the Northern District of
Plaintiff-Appellant, Illinois, Eastern Division
v. No. 03 C 0492
LOVEJOY, INC., Sidney I. Schenkier,
Defendant-Appellee. Magistrate Judge.
ORDER
Dennis Shea brought this lawsuit under the Americans with Disabilities Act
(ADA), claiming that his former employer, Lovejoy, Inc., fired him because he
walked with a limp from childhood polio. In the district court Shea also raised
claims under the Age Discrimination in Employment Act and state law, but he
abandons these on appeal. Because the district court properly concluded that Shea
is not disabled for purposes of the ADA, we affirm the grant of summary judgment.
*
This case was scheduled for oral argument on July 5, 2005, but counsel for
the appellant did not appear when the case was called. The appellee’s counsel
informed the court that counsel was ill. In the absence of appellant’s counsel, the
court took the case under advisement on the briefs and the record, without oral
argument.
No. 04–2609 Page 2
Shea contracted polio as a child, and between the ages of nine and sixteen
underwent five or six corrective surgeries on both legs, spending several years in a
wheelchair. He now wears a brace on his left leg and walks with a “noticeable
limp.” In a deposition, Shea testified that he has never required special
accommodations from any employer because of his condition, and while he cannot
place much weight on his left leg, he climbs stairs on the way to work every day,
regularly walks long distances, and sails frequently.
In July 2001 Shea was dismissed from his position as a sales engineer at
Lovejoy, which manufactures couplings and other power transmission components.
Lovejoy insists that Shea was fired because of his deficient job performance,
pointing to employee evaluations that chart the increasing dissatisfaction of Shea’s
supervisors in the years preceding his termination. But Shea believes the dismissal
was discriminatory because of an exchange with David Mortenson, Lovejoy’s vice
president for marketing. Shortly after Mortenson joined the firm in April 2001,
Shea decided to introduce himself and stopped by Mortenson’s office. At the end of
their brief conversation, Mortenson, noticing Shea’s limp, asked whether Shea had
injured himself over the weekend. Shea explained that he had suffered from polio
as a child and wore a leg brace. Mortenson, who like Shea traveled regularly on
behalf of Lovejoy, asked whether the brace was inconvenient at airport metal-
detectors; Shea replied that it was not. According to Shea, Mortenson also asked
whether the condition inhibited carrying Lovejoy products or traveling to factories,
and Shea said that it did not. Shea says Mortenson looked skeptical of this answer.
The magistrate judge, presiding by the parties’ consent, granted Lovejoy’s
motion for summary judgment, holding that Shea had failed to show that he was
disabled under the ADA. The court—noting that individuals may prove they are
disabled by demonstrating, inter alia, that they (1) have a physical impairment that
substantially limits a major life activity, or (2) are mistakenly regarded as having
such an impairment, 42 U.S.C. § 12102(2)—stated that the conversation with
Mortenson could not convince a jury that Lovejoy viewed Shea as disabled. The
court then noted in a footnote that “[t]o the extent that plaintiff’s brief suggests”
that he actually has a physical impairment that renders him disabled under the
ADA, “the undisputed evidence indicates that plaintiff’s limp did not affect any
major life activities.”
Shea first contends that Lovejoy viewed him as substantially limited in the
major life activity of working. This argument fails because the demanding
“substantially limits” test cannot be met simply by showing that the employer
thinks the employee is unable to perform one specific job. Kupstas v. City of
Greenwood, 398 F.3d 609, 612–13 (7th Cir. 2005). Rather, the employer must think
the employee is unable to work in a broad range of jobs. Id. Shea’s conversation
with Mortenson at best implicates only Shea’s ability to perform his job at Lovejoy.
No. 04–2609 Page 3
Moreover, even if Mortenson did view Shea as substantially limited in his ability to
work this could not establish discrimination because, as the magistrate judge noted,
the undisputed facts show that Mortenson had nothing to do with the performance
evaluations or the termination decision. See Staples v. Pepsi-Cola Gen. Bottlers,
Inc., 312 F.3d 294, 301 (7th Cir. 2002); Huff v. UARCO, Inc., 122 F.3d 374, 385 (7th
Cir. 1997).
Shea next attempts, for the first time on appeal, to demonstrate that he is
actually disabled, arguing that, aside from what Lovejoy thinks, his limp
substantially inhibits the major life activity of walking. Shea has waived this
argument because he never contended in the district court that the limp limits his
ability to walk See Opp v. Wheaton Van Lines, Inc., 231 F.3d 1060, 1066 n.2 (7th
Cir. 2000); Karazanos v. Madison Two Assoc., 147 F.3d 624, 629 (7th Cir. 1998).
Quite the contrary: Shea testified he can walk long distances, climb stairs, and sail,
and he admitted both in his opposition to summary judgment and in his appellate
brief that his limp “does not affect his job performance or any other life functions.”
AFFIRMED.