Dyke, Michael v. O'Neal Steel Inc ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-2821
MICHAEL DYKE,
Plaintiff-Appellant,
v.
O’NEAL STEEL, INC.,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Indiana, Fort Wayne Division.
No. 1:00-CV-0092—Roger B. Cosbey, Magistrate Judge.
____________
ARGUED JANUARY 10, 2002—DECIDED MAY 5, 2003
____________
Before HARLINGTON WOOD, JR., RIPPLE, and ROVNER,
Circuit Judges.
HARLINGTON WOOD, JR., Circuit Judge. Appellant
Michael Dyke lost his left eye in 1989 after an attempted
mugging. Since 1993, Dyke has suffered from Nerve
Response Syndrome Disorder (“NRSD”), a condition which
causes constant pain in Dyke’s left shoulder and hip and
creates a feeling as though his leg and shoulder are con-
stantly asleep. Dyke has been receiving Social Security
Disability Benefits since 1994. Dyke’s initial disability
finding was based on alcohol abuse. In 1996, Dyke filed an
application for a redetermination of disability, after being
informed that, because of a change in the law governing
disability benefits, his benefits would end on January 1,
2 No. 01-2821
1997. In his 1996 application, Dyke sought benefits based
on his significantly reduced ability to use his left leg and
arm due to a reflex sympathetic disorder (“RSD”). The
disability hearing officer determined that Dyke was dis-
abled, noting that he suffered from “significant disorganiza-
tion of motor function which has resulted in his need to use
a cane to walk and in reduced strength in his left arm.”
Despite his disability, since 1996, Dyke has worked at
various jobs through temporary agencies. On October 19,
1998, Dyke injured his back while working at Midwest Tile
and Concrete through a temporary agency. As a result of
this injury, Dyke underwent physical therapy and was
placed on a ten-pound lifting restriction.
On October 24, 1998, Dyke submitted a Report of Contin-
uing Disability to the Social Security Administration. In the
report, Dyke stated that he could not stand or sit for long
periods of time, had limited use of his left arm, and was
“still blind in [his] left eye.” He said that his condition had
worsened since 1996 and was unbearable at times. In
response to a question asking “Do you feel you are able to
return to work?” Dyke checked the box marked “No.” Dyke
explained,
All I can say about my situation is, there are only very
few things that I can do, do [sic] to RSD in my left leg
and arm, I try, but it is almost impossible. Don’t get me
wrong I’m not giving up in no way, but theres [sic] not
a whole lot I can do but I keep trying regardless.
In response to a question asking “Since you became dis-
abled, have you done any work?” Dyke marked the box
reading “No.” Dyke stated that he could not lift more than
ten to fifteen pounds, that he could not tuck in his shirt
using his left hand, and that it was hard for him to move
his arm high enough to wash his hair.
On October 27, 1998, Dyke returned to the doctor who
was treating him for his back injury. After that appoint-
No. 01-2821 3
ment, the doctor believed Dyke could return to work with
modified duties. The sheet listing Dyke’s restrictions noted
that Dyke should “minimize bending, reaching, squatting,
twisting, or climbing,” “not lift over 20 lbs.,” and “alternate
between sitting and standing as needed.”
On November 30, 1998, Blue Jean Jobs, a temporary
agency, assigned Dyke to a temporary position at O’Neal
Steel (“O’Neal”), a metal services company which pur-
chases, inventories, processes, and ships various types of
metal and metal parts to end users. Dyke’s job at O’Neal
required him to take twelve-foot-by-six-foot pieces of sheet
metal off of a pallet, place them on a conveyor system to
shear them, and then place the sheared sheets back on a
pallet. He also placed metal pieces in a bender and used a
punch press, lathe machine, tumbler, hand-held grinding
tool, and a manual pump pallet jack. In addition to the
metal work, Dyke was assigned clean-up duties which
required him to sweep floors and do general cleaning in the
warehouse.
During the time Dyke worked at O’Neal, he did not wear
either his prosthetic eye or an eye patch. Dyke explained
that he left his prosthetic eye out while working at O’Neal
because he did not want to get metal shavings, grease, or
oil on it. Dyke testified in his deposition that, after he had
been working at O’Neal for two weeks, he was encouraged
by his supervisor to apply for a full-time material handler
position at the company. Dyke obtained an employment
application, but when he tried to submit his completed
application to Personnel Assistant Devara Harter, the
following conversation, as recounted by Dyke in his deposi-
tion, occurred:
. . . as I took it back to her, she looked up at me, and
she goes, well, we can’t hire you. I says, well, why is
that? She goes, well, you only got one eye. And I says,
beg your pardon? She goes, no, we can’t hire you,
4 No. 01-2821
because our insurance won’t cover you because you only
got one eye. I says, ma’am, do you realize I’ve been
working here for two weeks and two days? She goes,
well, I’m sorry, she goes, but we can’t hire you.
Harter, in her deposition, stated, when Dyke brought in his
completed application, she thought that he looked “differ-
ent,” prompting her to ask whether he only had one eye.
According to Harter, Dyke replied in the affirmative, and
Harter then asked whether the people in the warehouse
knew of Dyke’s impairment. Harter testified that Dyke
again replied in the affirmative. In her deposition, Harter
explained her reaction when Dyke tried to submit his
application as follows: “I just thought it looked odd and I
just wanted to know what was wrong, or was there a
problem.”
Before being hired as a permanent employee at O’Neal,
an applicant must pass vision and physical abilities tests as
well as a criminal background check. The physical and
vision tests set minimum standards which help ensure the
safety of employees in the warehouse, where large, heavy,
and potentially sharp pieces of metal protrude at many
different angles and heavy equipment is operating. If a
temporary employee has been working at O’Neal for thirty
days, he must submit to the tests established for perma-
nent employees. According to Shawn Smith, Vice-President
of Human Resources for O’Neal, “[t]he reason for the 30-day
delay is cost—most temporaries only stay a few days or
weeks.” Dyke concedes, however, that if, during the thirty-
day period, O’Neal learned, through self-identification or
other means, that a temporary employee could not meet the
required standards, the worker’s assignment was canceled.
After Dyke left Harter’s office, she felt the need to check
into the matter further for safety reasons. Harter called
Christy Nolen in O’Neal’s corporate human resources
department in Birmingham, Alabama and asked whether
No. 01-2821 5
a person with one eye could work or apply for a job with
O’Neal. Nolen said she did not think so, but she would have
to check. Nolen called Harter back in about a half an hour
and told her that they should not have a person with one
eye working or applying for a job because that person would
not be able to pass O’Neal’s vision test. Nolen did not
inquire either into Dyke’s condition or the type of job for
which he was applying. After hanging up the phone, Harter
began to wonder whether Dyke should be in the warehouse
as a temporary employee, so Harter placed another call to
Nolen. She asked whether a one-eyed person should be in
the warehouse as a temporary employee and was told “No.”
Harter then contacted Dyke’s supervisor, who was also the
Plant Supervisor, and told him that, for safety reasons,
human resources said Dyke should not be employed as a
temporary worker. The supervisor replied, “That is the end
of that, then. We need to contact Blue Jeans.” On December
14, 1998, Harter called Blue Jean Jobs and released Dyke
from his assignment with O’Neal. The stated basis for
Dyke’s release was “safety reasons.” Blue Jean Jobs as-
signed Dyke to another employer, Mullinax Packages, on
January 11, 1999. Dyke worked at Mullinax on January
11th and 12th and then was a “no show” on January 13,
1999. Following the Mullinax assignment, Dyke had no
further contact with Blue Jean Jobs.
On March 3, 2000, Dyke filed suit against O’Neal under
the Americans with Disabilities Act (“ADA”), 29 U.S.C.
§ 12101, et seq. Dyke alleged O’Neal violated the ADA both
by terminating him from his temporary position and by
failing to hire him for a permanent position. With the
consent of the parties, the case was assigned to a magis-
trate judge pursuant to 28 U.S.C. § 636(c). Lacking direct
evidence of discrimination, Dyke proceeded under the
burden shifting approach set out in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). In order to establish
disability discrimination, Dyke must “show that (1) he is
6 No. 01-2821
disabled within the meaning of the ADA[,] (2) he is quali-
fied to perform the essential functions of the job either with
or without reasonable accommodation and (3) he suffered
from an adverse employment action because of his disabil-
ity.” Moore v. J.B. Hunt Transport, Inc., 221 F.3d 944, 950
(7th Cir. 2000). O’Neal filed a motion for summary judgment
in March 2001. In June 2001, Magistrate Judge Cosbey
granted summary judgment in favor of O’Neal on each of
Dyke’s claims. In doing so, the judge assumed Dyke had
experienced two adverse employment actions. He then
determined it could be inferred that O’Neal regarded Dyke
as having a substantially limiting impairment such that he
would be considered disabled under the ADA. However, the
judge held Dyke failed to show he could perform the
essential functions of either his temporary position or the
permanent job. Dyke filed a timely notice of appeal. On
appeal, Dyke challenges only the magistrate judge’s ruling
on the claim arising from his termination from the tempo-
rary position.
Analysis
We review a grant of summary judgment de novo. Moore,
221 F.3d at 950. Summary judgment is appropriate when
the record, viewed in the light most favorable to the non-
moving party, shows “that there is no genuine issue as to
any material fact and that the moving party is entitled to
judgment as a matter of law.” FED. R. CIV. P. 56(c).
[T]he plain language of Rule 56(c) mandates the entry
of summary judgment, after adequate time for discov-
ery and upon motion, against a party who fails to make
a showing sufficient to establish the existence of an
element essential to that party’s case, and on which
that party will bear the burden of proof at trial.
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
No. 01-2821 7
As previously noted, Dyke has the burden of showing (1)
he is disabled within the meaning of the ADA, (2) he was
qualified to perform the essential functions of the tempo-
rary job either with or without reasonable accommodation,
and (3) he suffered from an adverse employment action
because of his disability. See Moore, 221 F.3d at 950. As
Magistrate Judge Cosbey did, we will assume Dyke’s
termination from his temporary position after only two
weeks and two days constituted an adverse employment
action. While O’Neal contends the ending of a temporary
assignment is an expected and customary part of temporary
employment, on the facts of this record it appears Dyke was
arguably entitled to remain at O’Neal for at least thirty
days as a temporary employee before he would be required
to pass the vision and physical abilities tests and the
background check.1 We focus our attention, therefore, on
the first two prongs of the analysis.
An individual is disabled under the ADA if he (1) has “a
physical or mental impairment that substantially limits one
or more of the major life activities of such individual,” (2)
has “a record of such an impairment,” or (3) is “regarded as
having such an impairment.” 42 U.S.C. § 12102(2). On
appeal, Dyke does not challenge Judge Cosbey’s determina-
tion that Dyke did not have a substantially limiting impair-
ment. Nor does Dyke contend that he has a record of an
impairment. Therefore, Dyke must point to facts sufficient
to support an inference that O’Neal regarded him as having
a substantially limiting impairment because of his lack of
an eye. The “regarded as” prong is fulfilled if either “(1) a
covered entity mistakenly believes that a person has a
1
Dyke does not contend he could have passed the vision test.
Additionally, Dyke had a criminal record that included four DUIs,
an assault and battery conviction, a burglary conviction, and two
convictions resulting from charges of domestic violence.
8 No. 01-2821
physical impairment that substantially limits one or more
major life activities, or (2) a covered entity mistakenly
believes that an actual, nonlimiting impairment substan-
tially limits one or more major life activities.” Sutton v.
United Air Lines, Inc., 527 U.S. 471, 489 (1999). In Mack v.
Great Dane Trailers, 308 F.3d 776, 781-82 (7th Cir. 2002),
we applied Toyota Motor Manufacturing, Kentucky, Inc. v.
Williams, 534 U.S. 184 (2002), to a “regarded as” claim,
holding “if the condition that is the subject of the employer’s
belief is not substantially limiting, and the employer does
not believe that it is, then there is no violation of the ADA
under the ‘regarded as’ prong of the statute.”
Clearly, Dyke’s monocular vision is not actually substan-
tially limiting. Dyke testified that the condition prevented
him only from driving at night, working on roofs, holding
his head straight when looking left to right, and participat-
ing in various recreational activities. Dyke may neverthe-
less prevail by showing O’Neal perceived his impairment to
be substantially limiting in a major life activity. Dyke
contends O’Neal mistakenly believed his lack of an eye
substantially limited his ability to see, a major life activity
under the ADA. See 29 C.F.R. § 1630.2(i). Judge Cosbey,
without the benefit of the Supreme Court’s decision in
Toyota, held, “the fact that O’Neal requires all regular
employees to have vision in both eyes raises an inference
that O’Neal believes that a monocular individual is substan-
tially limited in seeing.” After Toyota, the Ninth Circuit, in
E.E.O.C. v. United Parcel Service, Inc., 306 F.3d 794 (9th
Cir. 2002), addressed the issue of monocularity in con-
nection with a “regarded as” discrimination claim. The
Ninth Circuit held that a company’s institution of vision
standards alone was insufficient to show that it regarded
those individuals who were unable to meet the standards as
substantially limited in their overall ability to see in their
everyday lives. Id. at 806. We agree with this assessment.
While vision standards alone may not be sufficient evidence
No. 01-2821 9
to support a finding of “regarded as” discrimination, Dyke
was never given a vision test by O’Neal. Therefore, we must
determine whether O’Neal perceived Dyke to be substan-
tially limited in his ability to see because of his complete
lack of a left eye. O’Neal asserts the only inference that can
be drawn from the record is that O’Neal perceived Dyke to
be unable to pass its vision test and, therefore, ineligible to
work at its warehouse. However, there is evidence in the
record which could support a reasonable inference that
O’Neal believed Dyke’s lack of an eye substantially limited
his ability to see. As previously noted, O’Neal did not even
administer the vision test to Dyke. O’Neal’s human re-
sources office in Birmingham did not inquire at any time as
to the specifics of Dyke’s condition. Harter’s initial reaction
upon seeing that Dyke had only one eye was that “it looked
odd” and she “wanted to know what was wrong, or was
there a problem.” However, Harter did not inquire as to the
specifics of Dyke’s vision. A reasonable jury could infer that
O’Neal regarded Dyke’s monocular vision as a substantially
limiting impairment.
In order to prevail, Dyke must also show that he is
qualified to perform the essential functions of the tempo-
rary job, either with or without reasonable accommodation.
Judge Cosbey held the fact Dyke was receiving disability
benefits did not automatically estop him from claiming he
was a qualified individual under the ADA. However, Judge
Cosbey, relying on Cleveland v. Policy Management Systems
Corp., 526 U.S. 795 (1999), and Feldman v. American
Memorial Life Insurance Co., 196 F.3d 783 (7th Cir. 1999),
determined that Dyke was estopped from asserting he was
qualified because of the statements he made to the Social
Security Administration in his October 24, 1998 Report of
Continuing Disability.
We agree with Judge Cosbey’s conclusion that Dyke
cannot show he was a qualified individual under the ADA,
10 No. 01-2821
but we base our decision on grounds other than estoppel. In
response to questioning at oral argument, counsel for Dyke
asserted vision in both eyes was not a requirement for the
temporary position. He based this assertion on the fact that
Dyke had been performing the temporary job for over two
weeks despite his monocular vision. The record evidence,
however, is to the contrary. Both Harter and Shawn Smith
stated temporary employees who have been working at
O’Neal for more than thirty days are required to pass the
testing battery established for permanent employees. Dyke
concedes that, if O’Neal learned during the thirty-day
period before testing was conducted that a temporary
employee could not meet O’Neal’s standards, the worker’s
assignment would be canceled. The fact that O’Neal, as a
cost-cutting measure, does not test temporary employees
until they have been at the plant for thirty days does
not mean that the established standards do not apply to
temporary positions. Indeed, the evidence supports an
inference that the standards do indeed apply to temporary
positions, because a temporary employee’s assignment is
canceled if O’Neal discovers during the initial thirty-day
period that the employee is not able to meet the established
standards. Furthermore, there is nothing in the record to
indicate an employee’s status changes from temporary after
the tests are administered at thirty days. Nor does Dyke’s
successful performance of the temporary job for two weeks
alter O’Neal’s job requirements. There is unchallenged
expert testimony that O’Neal’s vision requirements were
“both reasonable and appropriate for the job classification
and work environment.” O’Neal’s expert stated, “The vision
standards are necessary for the job performance and job
safety of the workers in the warehouse. . . . Workers who do
not meet these vision standards are likely to have difficulty
performing their jobs and are at a high risk of injuring
themselves and their co-workers.” Dyke points to no evi-
dence to contradict this testimony.
No. 01-2821 11
Similarly, Dyke has presented no evidence to show he
would have been able to pass O’Neal’s vision test, and
O’Neal’s expert reported that an individual needs vision in
both eyes to meet O’Neal’s vision standards. Because
Dyke’s monocular vision prevents him from meeting
O’Neal’s vision standards, we need not address the effects
of his NRSD. Dyke cannot show he was able to perform the
essential functions of the temporary position, and Judge
Cosbey appropriately granted O’Neal’s motion for summary
judgment on this claim.
The grant of summary judgment in favor of O’Neal is
AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-5-03