Hammel, Paul S. v. Eau Galle Cheese ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 03-3578 & 03-3687
PAUL S. HAMMEL,
Plaintiff-Appellant, Cross-Appellee,
v.
EAU GALLE CHEESE FACTORY,
Defendant-Appellee, Cross-Appellant.
____________
Appeals from the United States District Court
for the Western District of Wisconsin
No. 02-C-0405-C—Barbara B. Crabb, Chief Judge.
____________
ARGUED APRIL 1, 2004—DECIDED MAY 11, 2005
____________
Before FLAUM, Chief Judge, and COFFEY and EVANS,
Circuit Judges.
COFFEY, Circuit Judge. Paul Hammel, who had previ-
ously been adjudged legally blind, began his employment as
a general laborer at the Eau Galle Cheese Factory (“EGC”),
in Durand, Wisconsin, on January 8, 2000, and was dis-
charged just three weeks later, on January 27, 2000.
Shortly thereafter Hammel sued EGC claiming he was
unlawfully terminated on the basis of his disability, in
violation of the Americans with Disabilities Act (“ADA”), 42
2 Nos. 03-3578 & 03-3687
U.S.C. §§ 12111 et seq. After a bench trial, the district court
ruled that Hammel was not a “qualified individual” within
the meaning of the ADA and entered judgment as a matter
of law in EGC’s favor. Hammel v. Eau Galle Cheese Factory,
No. 02-C-0405-C, 2003 U.S. Dist. LEXIS 11380, at *2 (W.D.
Wis. June 26, 2003). We affirm.
I. Background
Hammel suffers from congenital glaucoma in both eyes,1
is without any sight in his right eye, retains only gun-barrel
vision2 in his left eye and thus is considered legally blind.
1
Congenital glaucoma is a disease, present from birth, “associated
with abnormal pressure inside the eye, which eventually causes
damage to the optic nerve and permanent loss of vision.”
EyeMDLink.com, Congenital Glaucoma, at http://
www.eyemdlink.com/Condition.asp?ConditionID=2#c (last updated
Nov. 1, 2004).
2
“Gun-barrel vision,” more commonly known as “tunnel vision,”
is a condition commonly associated with advanced glaucomatous
optic nerve damage and is characterized by a severe constriction
in a person’s visual field. DORLAND’S ILLUSTRATED MEDICAL
DICTIONARY, available at http://www.mercksource.com/pp/us/
cns/cns_hl_dorlands.jspzQzpgzEzzSzppdocszSzuszSzcommonzS
zdorlandszSzdorlandzSzdmd_v_10zPzhtm; see Mid-America Eye
Center, Glaucoma, at http://www.midamericaeye.com/surgeries/
glaucoma.html (last updated April 15, 2004). A person who suffers
from gun-barrel vision “views the world as though s(he) were
looking at the world through a tube.” THE JKL MEDICAL DICTIO-
NARY, available at http://www.jklcompany.com/a.html (last
updated May 21, 2001). However, “when due to organic causes
such as glaucoma . . . the [vision] field expands at increasing dis-
tance.” Mid-America Eye Center, Glaucoma, at http://
www.midamericaeye.com/surgeries/glaucoma.html (last updated
April 15, 2004). In Hammel’s case, he described having “no peri-
(continued...)
Nos. 03-3578 & 03-3687 3
Id. at *3. To help compensate for his loss of vision, Hammel
has received training at vocational schools in the use of
adaptive workplace techniques, and with this training has
been able to secure work performing various jobs on a
temporary basis.
In January 2000, Hammel applied for a position as a gen-
eral laborer with the defendant, Eau Galle Cheese Factory
in Durand, Wisconsin, and was granted an interview with
EGC’s business manager, Ron Hemmy. Id. at *5. During the
interview Hammel related that he suffered from glaucoma
and advised his interviewer of the limitations caused by his
disability. Id. After having the job’s requirements explained
to him, Hammel assured Hemmy that he would be able to
perform the necessary tasks without any special accommo-
dation. Hemmy agreed to hire him on a trial basis and
informed him that his employment would be conditional
and subject to “a probationary period of 90 days.” Id. at *6.
That same day Hammel was given a tour of the factory and
a list of his duties and introduced to his supervisor, John
Anibas. He was also introduced to a number of his co-
workers who in turn demonstrated what his essential duties
would be and put him to work.
A. Hammel’s Job Performance
The general laborers at EGC, such as Hammel, convert
cheese curds into the hard Italian cheeses that EGC pro-
duces, and while doing so they are required to perform a
variety of tasks at EGC’s factory in two separate work
2
(...continued)
pheral vision beyond the 20 degree corridor in front of his left
eye . . . [but the] visual field in front of his left eye is greater the
further away he is from an object.”
4 Nos. 03-3578 & 03-3687
areas; the “make room” and the “brine room.”3 The employees
are expected to perform the tasks assigned in a rapid and
efficient manner, while working in close quarters side-by-
side.
According to his supervisors, John Anibas, Dan Simpson,
and Doug Smith, Hammel had problems performing many
of his duties from day one. For example, they explained
that, as part of his duties, Hammel was expected to mold
cheese curds into “cheese wheels,” and to “turn” or “flip” the
wheels in a manner that would ensure that the final prod-
uct would have a uniform finish. On a number of occasions
Hammel failed to properly perform this task, resulting in a
defective and unsaleable product. During the production
process, part of Hammel’s job, like his co-workers, was to
remove the cheese wheels from the brine tanks and stack
them uniformly on drying racks, but on many occasions he
failed to place the cheese wheels properly on the racks, thus
allowing the soft, still pliable wheels of cheese to hang over
the edge causing a portion of the product to be wasted and
drop to the floor. In addition, the cheese wheels had to be
stamped with the production date in order that they could
be tracked in case of contamination. Anibas noted that
Hammel “did not always stamp each cheese” as was
instructed, either stamping the cheese illegibly or failing to
properly apply the stamp to the finished product. Id.Another example of Hammel’s lack of attention or aptitude
was evidenced in his repeated difficulty stacking the cheese
in a manner so as to prevent them from being damaged by
tipping over and falling off the pallet and/or causing a safety
hazard. Furthermore his supervisors related that Hammel
failed to “keep the stacks of cheese wheels level,” resulting
in unbalanced pallets that posed the risk of toppling over.
Id. Anibas observed that, in general, Hammel also “worked
3
For a more detailed description of the duties of a general laborer
at EGC, see Hammel, 2003 U.S. Dist. LEXIS 11380, at *6-7.
Nos. 03-3578 & 03-3687 5
too slowly at his tasks to keep up with the speed of [the]
cheese production” line. Id. at *9.
Aside from a general lack of aptitude and/or ability,
Hammel also was known to exhibit a poor attitude and per-
form many of his tasks carelessly and without regard for his
safety or that of his co-workers. Indeed, Simpson “thought
the plaintiff seemed eager to work during his first week but
seemed to lose interest during the second week, when he
spent more time talking with his co-workers and taking
breaks than doing his job.” Simpson stated that he observed
Hammel literally slamming “cheese rounds down on the
work table,” a dangerous act which “pos[ed] a risk to other
workers who were at the same table [considering] [t]he
wheels weigh about 30 pounds or more and could inflict
injury if they landed on someone’s hand or foot.” Id. at *10.
On another occasion, an employee watched Hammel drive
an electrically powered pallet jack bearing a pallet of fin-
ished cheese wheels into the wall, causing the wheels of
cheese to fall off.4 Id. at *12. His supervisors on occasion
expressed concern and fear that Hammel might be seriously
injured by tripping over hoses that were strategically
positioned on the factory floor to wash away excess brine. In
addition, Simpson frequently observed Hammel banging
into the factory machinery (e.g., hitting his head on the
press rack) and Hammel even made a point of showing him
bruises on his legs that were presumably a result of
4
In the words of a co-worker who observed the incident: “[H]e
was driving the electric pallet jack, and all of a sudden the doors
[to the adjoining room] went whoop, and they come [sic] slamming
open . . . and he come [sic] out, spun a circle and slammed right
into the wall. And half of the [cheese wheels] fell off . . . . he didn’t
act like it was a very big deal at all. We just picked the [cheese
wheels] up . . . . [h]e just shrugged it off, laughed it off . . . . I’ve
never seen anybody ram a wall like that in my life. I mean, he hit
the wall at full bore.”
6 Nos. 03-3578 & 03-3687
Hammel’s bumping into things. Id. at *10. Furthermore, in
disregard for his safety, Hammel repeatedly placed his hands
not only on top of but also inside the grinding machine
when using the apparatus,5 even after having been ordered
by Simpson to cease and desist from such a practice.
Eventually Simpson was forced to prohibit Hammel from
operating the grinding machine after EGC’s owner, John
Buhlman “saw [Hammel] putting his hands on top and told
Simpson not to [allow him to] operate the grinder anymore.”
Id. at *10-11. When told by Simpson that “he could no
longer operate the grinder, [Hammel] acted disgusted with
Simpson.” Id.Hammel’s run-in with Simpson was not the only time he
demonstrated a propensity for arrogance and insubordina-
tion. Hammel also continued to make personal phone calls
on company time in spite of the fact that he had been fre-
quently told by Anibas not to do so and also “walked away
from his post whenever he wanted to go outside for a cigar-
ette.” On one occasion Hammel went so far as to taunt
Smith after he (Hammel) had been reprimanded for taking
an unauthorized break by mocking him and, “in an offensive
tone . . . [saying] ‘Here I am Dougie, Dougie, what do you
want me to do now?’ ” Id. at *9. Particularly telling is
Hammel’s coworkers description of him as a “slacker” with
a poor attitude.
Hammel’s supervisors initially used remedial measures
in an attempt to address his mounting performance prob-
lems. They warned Hammel that he needed to be more care-
ful, instructed him to speed up or slow down when perform-
ing certain tasks that the job demanded, as well as time
and again ordering him to stop taking unauthorized work
breaks. In an attempt to accommodate Hammel and
5
Which was used to grind and recycle cheese rinds discarded
during processing.
Nos. 03-3578 & 03-3687 7
believing that he could more efficiently operate in the fac-
tory atmosphere, Anibas arranged for Hammel to work in
the make room on a regular basis, “despite the fact that
[EGC’s] practice was to rotate the general laborers between
the make room and the brine room.” Id. However, even with
this accommodation, Hammel’s work performance failed to
improve and his supervisors eventually decided they had to
meet with Hemmy to relay their concerns. Specifically, they
informed Hemmy of Hammel’s work problems, such as his
insubordination, poor attitude and work ethic, and related
their concerns about his carelessness. After discussing the
matter, Hemmy decided that the only course of action
remaining was to terminate him. Hemmy later met with
Hammel and informed him that he was being discharged
due to his limited vision and the fact that it “interfered ‘to
some extent’ with his work and caused [management] con-
cern for his safety and the safety of his coworkers.” Id. at
*13.
B. Hammel’s ADA Claims
In July 2002, Hammel responded to his termination by
filing suit against EGC under the ADA, alleging in his
complaint that EGC intentionally discriminated against
him in discharging him on the basis of his disability and
failing to afford him reasonable accommodations. EGC, in
their answer, denied discharging Hammel “because of” his
disability, and instead claimed that he was let go because
of his insubordination, consistent carelessness, poor work
attitude/ethic, and “concerns for his safety and the safety of
other employees.” In addition, EGC claimed that they had
been unable to work out any reasonable accommodations for
Hammel, but did not challenge Hammel’s allegation that he
is disabled within the meaning of the ADA.
Following discovery, Hammel and EGC each filed motions
for summary judgment. After considering the respective
8 Nos. 03-3578 & 03-3687
submissions and arguments, the court granted summary
judgment to Hammel in part on April 15, 2003, concluding
that Hammel had produced sufficient evidence to demon-
strate that his employer was motivated to discharge him
because of his disability, based on a statement from EGC’s
owner, Buhlman, in his deposition. See id. at *19-20.6 In
spite of the fact that the trial judge determined that Hammel
was discharged because of his disability, the judge found
that there was a genuine factual dispute as to whether
Hammel was a “qualified individual” under the ADA, and
reserved that issue for trial, along with the ultimate
question of whether EGC’s termination of Hammel was in
violation of the ADA.
On June 6, 2003, EGC filed a motion under Fed. R. Civ. P.
59(e), requesting that the district court reconsider its
earlier partial summary judgment order in favor of the
plaintiff in which the court found that it was undisputed
that Hammel was terminated “because of” his disability.
EGC argued that evidence developed after the entry of the
summary judgment order in favor of Hammel would
“establish that [Hammel] was not terminated as a result of
his disability; [or] in the alternative was not terminated
solely as a result of his disability.” Defendant’s Trial Brief
and Brief in Support of Motion for Partial Reconsideration,
p. 3. Accordingly, EGC sought to proffer evidence of
Hammel’s reckless behavior, refusal to follow job directions
and poor attitude in order to establish that even if discrimi-
natory intent had entered into the decision, Hammel would
6
In his deposition testimony, Buhlman was asked why EGC
did not specifically discuss any safety issues with Hammel before
discharging him. Dep. of John Buhlman, at 23-24. In response,
Buhlman stated, “I don’t know what good it would have done.” Id.Buhlman was then asked, “And why do you say that sir?” Id.Buhlman answered, “Well I can’t make him see. And that was the
problem.” Id.Nos. 03-3578 & 03-3687 9
have been discharged due to his poor behavior alone and
without regard to his vision problems. The trial judge denied
EGC’s motion on two separate grounds: (1) because it was
untimely as filed, i.e., it was filed only “two working days
before the start of the trial”; and (2) because it “rested on
evidence that should have been developed before [EGC] filed
its motion for summary judgment.” “Summary judgment is
not a dress rehearsal or practice run; it ‘is the put up or
shut up moment in a lawsuit, when a party must show what
evidence it has that would convince a trier of fact to accept
its version of the events.’ ” Id. (quoting Schacht v. Wisconsin
Dept. Of Corr., 175 F.3d 497, 504 (7th Cir. 1999)).
Following the denial of EGC’s Rule 59 motion, a two-day
bench trial commenced. During the proceedings Hammel
offered testimony concerning his perception of his work
performance at EGC. Hammel stated that he felt physically
capable of working as a general laborer at the cheese
factory, and that none of his supervisors informed him of
any problems with his job performance. However, Hammel
did admit on cross-examination that he had been warned
that he needed to be more careful when stacking and
stamping the cheese wheels, and was told in no uncertain
terms not to continue making personal phone calls on work
time. Hammel, in support of his claims, also presented a
vocational expert, Richard Davis, as a witness who proposed
various accommodations that he believed EGC could have
implemented that would have allowed Hammel to perform
the essential functions of his job.
In response, EGC’s owner, Buhlman, business manager
Hemmy, and several of his supervisors and employees con-
tradicted Hammel’s testimony during the defense’s case-in-
chief by relating Hammel’s record of insubordination, poor
work attitude, reckless, careless and unsafe work habits,
10 Nos. 03-3578 & 03-3687
and overall deficiencies in his work performance.7 Specifi-
cally, Hammel’s co-workers recounted their concerns over
Hammel’s failure to perform his job with the requisite care
for their safety as well as his own. Robert Pelke testified that
Hammel frequently ran into other people and equipment
and that he acted in a reckless manner, especially when he
was using the trimming knife, and went on to state that he
had spoken with Anibas prior to Hammel’s termination
concerning Hammel’s “recklessness and carelessness.” Id.Steven Seller, another co-worker, stated that Hammel was
usually “careless when he brought the soft cheese wheels to
the work tables and tended to throw them down on the
table,” that he had “heard other employees complain about
[Hammel] and his performance and [the] risks he posed,”
and opined that Hammel’s carelessness in the factory “was
[not] related to his visual impairment.” Id. at *12. Another
general laborer, Joseph Sabelko, testified that he attempted
to assist Hammel with his performance problems, but
whenever he attempted to explain how to properly perform
a procedure, “such as trimming cheese, [Hammel] would
turn away and refuse either to listen or to change his
procedure.” Id.
EGC also introduced evidence of Hammel’s checkered em-
ployment history; details Hammel omitted when he filed a
less than accurate and truthful work application upon
seeking employment at the company. EGC’s proffered
evidence established that Hammel in his application had:
(a) failed to account for a gap in his employment history
while he was in an addiction program; (b) falsely claimed
that a job he held at Sears was full-time while in reality it
was part-time employment; and (c) listed his job at the
Ability Building Center as lasting eleven months, when in
fact he had worked there only six months. Id. at *16. The
7
See supra at pp. 3-6.
Nos. 03-3578 & 03-3687 11
defense also demonstrated that Hammel had, for obvious
reasons, omitted a previous employer from his work history,
Schlosser Lumber in Durand, Wisconsin; a job he held
shortly before starting at EGC and left “after being criti-
cized for not working and for failing to follow directions.” Id.
at *15. Hammel’s supervisor at Schlosser, Michael Berger,
testified that he found it difficult to work with him, and
recounted that he repeatedly explained to Hammel how to
perform his duties, but Hammel refused to cooperate. Id. at
*16. For example, Berger explained that Hammel “was
supposed to pile certain size boards in certain piles [but]
failed to do [so] properly,” and that when he was forced to
criticize Hammel’s performance, Hammel became “upset.”
Id. On one such occasion, Berger stated that Hammel
“pulled out his false eye, showed it to Berger and told him,
“ ‘You can’t fire me, I’m disabled. I’ll sue you.’ ” Id. at *16-
17.
Following the close of testimony, both parties moved for
judgment as a matter of law pursuant to Fed. R. Civ. P. 52(a).
The trial judge, after considering the evidence and the law
applicable thereto, granted EGC’s motion concluding that
Hammel had failed to demonstrate that he was capable of
“perform[ing] the essential tasks of the job in a way that met
[EGC’s] reasonable expectations,” “with or without reasonable
accommodation,” and thus was not a “qualified individual”
with a disability as defined by the ADA. Id. at *21-22
(emphasis added). In reaching this conclusion, the court rea-
soned that Hammel’s “difficulties with work that were not
the result of his poor vision but were related to his poor
attitude, his carelessness and his unwillingness to accept
criticism and take direction,” and the danger he posed to his
own safety as well as that of his fellow employees provided
evidence of his inability to perform the job. Id. at *20-21
(emphasis added). Judge Crabb went on to state that
“[e]ven if [Hammel] had been physically capable of perform-
ing the essential tasks of his job he was not a qualified
12 Nos. 03-3578 & 03-3687
individual under the ADA because of his unwillingness
to make the adaptations, take the care or exert the effort
necessary to allow him to perform the essential elements of
the job.” Id. at *2. Accordingly, the court specifically con-
cluded that EGC was not guilty of discrimination “against
[Hammel] by firing him because it believed his disability
prevented him from performing his job,” and furthermore
found that “although [EGC] failed to carry out its obligation
to discuss possible accommodations with [Hammel, he]
failed to show that there were any accommodations [his
employer] could have made that would have enabled him to
perform adequately. Without such a showing, the defendant
is not liable for its failure to broach the issue of accommoda-
tions despite its knowledge of [Hammel’s] disability.” Id.
On appeal, Hammel argues that the court erred when it
found his employer did not discriminate against him in
violation of the ADA when terminating his employment and
failing to provide accommodations for his disability.
Hammel also contends that the court made several eviden-
tiary errors that entitle him to a new trial. EGC cross-ap-
peals, arguing that the court erroneously granted summary
judgment to Hammel on the issue of whether EGC was
motivated to terminate Hammel because of his disability.
II. Analysis
A. Hammel’s Discriminatory-Discharge Claim
Since the defendant received the benefits of a complete
bench trial and judgment our review is conducted pursuant
to Fed. R. Civ. P. 52(a) “under which ‘findings of fact shall
not be set aside unless clearly erroneous, and due regard
shall be given to the opportunity of the trial court to judge
the credibility of the witnesses.’ ” Cerros v. Steel Techs., Inc.,
288 F.3d 1040, 1044 (7th Cir. 2002) (quoting Anderson v.
Bessemer City, 470 U.S. 564, 573 (1985)). “[T]he question
[of] whether intentional discrimination occurred itself calls
Nos. 03-3578 & 03-3687 13
for a finding of fact, and thus the district court’s decision on
that point must be assessed under the clear error stand-
ard.” Id. (citing Pullman-Standard v. Swint, 456 U.S. 273,
287 (1982)). We review the trial judge’s legal conclusions de
novo. Id.
1. The District Court’s Consideration of “Non-
Disability-Related Evidence”
Hammel argues that the district court erred when it
considered evidence of his poor attitude, careless behavior
and deficient work performance in concluding that he was
not a “qualified individual” capable of performing the job’s
“essential functions.” Hammel claims that this so-called
“non-disability-related evidence” of an individual’s inability
to perform up to an employer’s expectations should not fac-
tor into the determination of whether or not an individual
is a “qualified individual with a disability.” We disagree.
The protections of the ADA extend only to “qualified
individuals” with a disability. Basith v. Cook County, 241
F.3d 919, 927 (7th Cir. 2001). When determining whether
a person is a “qualified individual” under the ADA, courts
undertake a two-part inquiry and consider whether, at the
time of the termination decision, the employee: 1) satisfies
the employer’s legitimate selection criterion for the job; and
2) is capable of performing the job’s “essential functions”
with or without reasonable accommodation from an em-
ployer. Id.; Bay v. Cassens Transp. Co., 212 F.3d 969, 974
(7th Cir. 2000). Put differently, the ADA is designed to
prevent discrimination against disabled persons who are
otherwise qualified for a job, but as a result of a disability
are unable perform the job’s essential functions without
reasonable accommodations. 29 C.F.R. Part 1630 Appendix
§ 1630.9; see also Matthews v. Commonwealth Edison Co.,
128 F.3d 1194, 1195 (7th Cir. 1997). However, the ADA does
not shelter disabled individuals from adverse employment
14 Nos. 03-3578 & 03-3687
actions if the individual, for reasons unrelated to his disability
(such as a poor work ethic, carelessness, bad attitude, insub-
ordination or unprofessional demeanor), is not qualified for
the job or is unable to perform the job’s essential functions
or fulfill the requirements of the position as prescribed by
the employer or “fails to meet his employer’s expectations.”
See, e.g., Williams v. United Ins. Co. of America, 253 F.3d
280, 282 (7th Cir. 2001); Tyler v. Ispat Inland Co., 245 F.3d
969, 972 (7th Cir. 2001); McPhaul v. Bd. of Comm’rs, 226
F.3d 558, 563-64 (7th Cir. 2000); Gorbitz v. Corvilla, Inc.,
196 F.3d 879, 882 (7th Cir. 1999); DePaoli v. Abbott Lab.,
140 F.3d 668, 674 (7th Cir. 1998); Leffel v. Valley Fin. Serv.,
113 F.3d 787, 794-95 (7th Cir. 1997); Siefken v. Vill. of
Arlington Heights, 65 F.3d 664, 667 (7th Cir. 1995).
EGC, as an employer, is certainly entitled to expect its
workers, disabled or otherwise, to use care and caution in
the workplace and to adhere to factory-wide safety policies
and requirements, as well as directives. See EEOC v. Exxon
Corp., 203 F.3d 871, 875 (5th Cir. 2000); EEOC v. Amego,
Inc., 110 F.3d 135, 143 (1st Cir. 1997). As noted above,
Hammel was often careless, such as when he slammed the
30-pound cheese forms on his work table posing a risk of
injury to someone’s hand or foot, bumped into his co-workers
and spilled brine on them, crashed a pallet of cheese wheels
into a wall while operating a pallet jack, and stuck his
hands in a cheese grinder after being repeatedly warned of
the danger. This pattern of hazardous and reckless behavior
jeopardized Hammel’s safety, as well as that of his fellow
workers. The fact that Hammel repeatedly saw fit to
disregard the safety and operational rules at EGC, which
were enacted to protect the workers from the dangers of
suffering injuries inherent in a busy, fast-moving factory
setting is obviously eminently relevant to a determination
of whether he can measure up to the requirements of his
position. See Exxon Corp., 203 F.3d at 875.
Nos. 03-3578 & 03-3687 15
The ADA also does not require that EGC, or any employer,
condone or accept irresponsible behavior from an employee
who, like Hammel, despite repeated warnings failed to
follow or comply with company rules and policies and con-
tinued to make personal phone calls on work time and take
unauthorized cigarette breaks. Nor does it protect an em-
ployee who is insubordinate and refuses to obey and accept
direct orders from his supervisors—including but not
limited to instructing him to get back to work in addition to
creating a direct safety hazard to himself and fellow
colleagues. See Reed v. LePage Bakeries, Inc., 244 F.3d 254,
262 (1st Cir. 2002). Moreover, the ADA provides no protec-
tion for a disabled worker who, like Hammel, for reasons
unrelated to his disability performs in such an unsatisfac-
tory manner (whether it be for reasons of carelessness,
insubordination or obstinance) that he fails to keep up with
the production pace and abide by the quality-control
standards that EGC has established as a benchmark for all
its employees. See Hoffman v. Caterpillar, Inc., 256 F.3d
568, 573 (7th Cir. 2001); Hedberg v. Indiana Bell Tel. Co.,
47 F.3d 928 (7th Cir. 1995); Mason v. Avaya
Communications, Inc., 357 F.3d 1114, 1121 (10th Cir. 2004);
Calef v. Gillette Co., 322 F.3d 75, 86 n.8 (1st Cir. 2003). We
are convinced that the court did not commit error when it
considered evidence of Hammel’s careless behavior, poor
attitude, insubordination, and deficient work performance
when considering whether he was a qualified individual
within the meaning the ADA.8
8
Given our discussion on this issue, we need not address
Hammel’s related argument that evidence of his poor attitude,
careless behavior and deficient work performance was relevant
only to an inquiry into EGC’s reasons for terminating him. As we
have discussed, consideration of this evidence was proper as part
of the court’s inquiry into whether he was capable of performing
the essential functions of the job in manner that met EGC’s
legitimate business expectations.
16 Nos. 03-3578 & 03-3687
2. The Court’s “Qualified Individual” Analysis
Hammel next asserts that the court erred in determining
that there were no reasonable accommodations that EGC
could have implemented that would have allowed him to
perform the “essential functions” of his job at the cheese
factory. As noted above, “[u]nder the ADA, the employer
avoids all liability if the plaintiff would have been fired
because incapable of performing the essential functions of
the job, and the burden of proof on the issue of capability is
not on the employer but on the plaintiff.” Miller v. Illinois
Dep’t of Corr., 107 F.3d 483, 484 (7th Cir. 1997) (emphasis
added). This is because the “provisions of the ADA relating
to employment protect only a ‘qualified individual,’ 42 U.S.C.
§ 12112; that is one who with or without a reasonable
accommodation by the employer can perform the essential
functions of the job.” Id. at 485. Thus, it is Hammel’s burden
to “supply evidence sufficient [that would] allow a jury” to
conclude that reasonable accommodations could or should
have been fashioned that would have allowed him to per-
form the duties of a general laborer in a manner that would
meet or exceed EGC’s legitimate expectations and satisfy the
essential functions of that position. McPhaul, 226 F.3d at
563 (emphasis added).
i. Hammel’s Job Performance Problems Unrelated
to His Disability
At the outset, we note that throughout the course of his
employment Hammel displayed a number of most troubling
work habits that had nothing to do with his disability.
Hammel repeatedly took unauthorized work breaks and
engaged in making personal telephone calls on work time.
In addition, without permission Hammel would walk out-
side the factory for cigarette breaks while he was on duty.
Hammel also exhibited insubordinate, arrogant and obsti-
nate behavior—unrelated to his vision impairment—when
Nos. 03-3578 & 03-3687 17
he mocked Smith after being told to get back to work
following another unauthorized cigarette break as well as
when he refused to cease and desist operating the cheese
grinder after he was reprimanded for repeatedly placing his
hands on and inside of the dangerous machinery while in
operation. The disregard Hammel exhibited for the direct
orders he was given and his demonstrated lack of respect
for his supervisor’s directions evince a troubled, confused
and unsuitable employee, not a disabled one. Many of the
reckless acts Hammel was guilty of committing in the fac-
tory bore no connection to his vision disability, but rather
to his insubordinate makeup and nature. For example,
Hammel negligently operated an electric pallet jack, which
on at least one occasion crashed into a wall, ruining a pallet
of cheese wheels (which Hammel shrugged off and laughed
about immediately after the incident). In addition, Hammel
had a tendency to slam the 30-pound cheese wheels onto the
work table, rather than carefully place them as instructed;
a practice which distracted and endangered his fellow
employees and damaged the cheese product. Hammel cannot
reasonably claim that such irresponsible and reckless
conduct was the result of his diminished sight. These were
serious employment infractions and no employer should be
required to accept much less ignore or condone this type of
irresponsible conduct simply because the employee acting
out also happens to be suffering from a disability within the
meaning of the ADA.
Due to Hammel’s careless attitude and inability to per-
form the tasks assigned to him, EGC was certainly justified
in discharging him based solely on his behavior and attitude,
without regard to his disability. However, unfortunately for
EGC, the company made Hammel’s disability an issue and
without doubt spurred this litigation when, in an attempt
to protect him from the real truth of his discharge, they
informed Hammel that he was being terminated, not
because he was an undesirable employee with serious at-
18 Nos. 03-3578 & 03-3687
titudinal problems, but because his vision impairment “in-
terfered ‘to some extent’ with his work and caused [EGC]
concern for his own safety and the safety of his coworkers,”
a mistake Buhlman acknowledged in deposition testimony
prior to trial. Id. at *19. The district court reasoned that
these statements were sufficient to demonstrate that EGC
had discharged Hammel because of his disability. However,
notwithstanding this determination, the judge ruled post-
trial that the reasons EGC had given when terminating
Hammel were irrelevant because Hammel failed at trial to
demonstrate that he was capable of performing the essential
functions of the job in manner that met EGC’s legitimate
business expectations, with or without accommodation. We
agree.
Hammel has not argued, nor could he argue that the
improper motivations of the decision makers at EGC alone
entitle him to relief pursuant to the ADA. For it is well
established that “[u]nder the ADA, the employer avoids all
liability if the plaintiff would have been fired because in-
capable of performing the essential functions of the job.”
Miller, 107 F.3d at 484 (emphasis added). Employment de-
cisions motivated by an improper or discriminatory animus
are violative of the ADA, but however improper, the ADA
only protects “qualified individuals”; those who can perform
the essential functions of their job with or without reason-
able accommodations. Id. at 485. Thus, it is Hammel’s
burden to establish either: (a) that he could perform the
essential functions of his job without accommodation; or (b)
that reasonable accommodations were available and could
have been implemented to allow him to perform the essen-
tial functions of his job.
ii. Hammel’s Inability to Perform the Job without
Accommodation
Hammel had significant difficulties while attempting to
perform the essential duties of a general laborer at the
Nos. 03-3578 & 03-3687 19
cheese factory. Further demonstrating Hammel’s inability
to perform the functions of his job in anywhere near a work-
manlike manner was his inability to properly stamp the
cheese wheels, and his likewise incapability of correctly
forming, stacking, transporting the finished cheese product,
and/or flipping the product, all essential to EGC’s business.
See supra pp. 3-6. This is not to mention the risk of injury
that Hammel posed to his co-workers by spilling brine,
tripping over hoses, and bumping into presses, walls, and
fellow workers, some of which were undoubtedly caused by
his patent carelessness. See id. Whether Hammel had
problems performing his duties at EGC resulting from his
disability or poor attitude is unimportant; however, what is
germane, and is apparent from the record, is the fact that
Hammel was unable to perform the essential functions of
his job and meet the expectations of his employer.
We agree with the trial judge’s conclusion that “it is ir-
relevant . . . whether it was [Hammel’s] vision impairment
or his refusal to take the proper care that caused him to
bump into his co-workers or the equipment, to run pallets
into the wall, or fail to turn and stack the cheese properly or
to slam the cheese down on the table . . . [for] [w]hatever the
cause he has demonstrated his inability to perform the
essential tasks of the job . . . [and is] not a qualified indi-
vidual within the meaning of the [ADA].” Hammel, 2003
U.S. Dist. LEXIS 11380, at *22-24 (emphasis added). As
this court has made clear on a number of occasions, when
the evidence demonstrates that an employee is incapable of
performing the job, the employer need not isolate the disa-
bility-related causes for an employee’s inferior performance
from problems that stem from a poor attitude, insubordina-
tion, carelessness, or outright disregard for the safety of him-
self and his co-workers. See, e.g., Waggoner v. Olin Corp., 169
F.3d 481, 484-85 (7th Cir. 1999); Palmer v. Circuit Court,
117 F.3d 351, 352 (7th Cir. 1997); Siefken, 65 F.3d at 667.
Instead, an employer is entitled to conclude that termi-
20 Nos. 03-3578 & 03-3687
nation is warranted solely on the basis of the employee’s
patent inability to perform his job in manner that meets the
essential requirements of that position. This is true even if,
after further inquiry, an employer determines that the
employee’s inability to perform the job “is due entirely to a
disability.” Matthews, 128 F.3d at 1195; see also Palmer, 117
F.3d at 352; Miller, 107 F.3d at 484-85. Either way, an
employer is only in violation of the ADA if a terminated em-
ployee can establish that reasonable accommodations exist
that would have enabled that person to perform the essential
functions of his or her job. See Miller, 107 F.3d at 485-86. As
demonstrated below, Hammel failed to put forth any such
accommodations and thus cannot prevail.
iii. Hammel’s Failure to Demonstrate Reasonable
Accommodations
At trial Hammel’s vocational expert, Richard Davis, recom-
mended that EGC could have implemented some question-
able “accommodations” that he believed would have enabled
Hammel to perform the essential functions of a general
laborer. Among these proposed “accommodations” were four
that involved Hammel’s use of “adaptive techniques” that
he had previously been trained to utilize during periods of
training at “Blind Incorporated” (a vocational training
school) prior to his employment at EGC such as using: 1) a
“feel” technique to help him properly stack the cheese
wheels; 2) a “flipping” technique to ensure that the cheese
wheels were flipped and turned correctly; 3) a “foot-shuf-
fling” technique to avoid tripping; and 4) a technique which
had him intentionally bump into and feel objects in order to
understand physical space. However, Hammel needed no
“accommodation” from EGC to make use of these adaptive
techniques.
“Reasonable accommodations” under the ADA are defined
in part as “modifications or adjustments to the work envi-
ronment [by the employer]. . . that enable a[n] . . . individual
Nos. 03-3578 & 03-3687 21
with a disability to perform the essential functions” of a po-
sition. 29 C.F.R. § 1630.2(o) (emphasis added). These “adap-
tive techniques” are skills and know-how that Hammel stated
that he had been trained to incorporate into his work
routine prior to his employment with EGC. They are not
“modifications or adjustments to the work environment [by
the employer]. . . that enable” him to perform the job’s
essential functions. Instead, Hammel’s proposed “adaptive
techniques” were nothing more than “modifications” or
“adjustments” to his own work performance that he was
expected to utilize without prodding or “accommodation”
from his employer. Cf. Sutton v. United Air Lines, Inc., 527
U.S. 471, 482 (1999) (“[I]f a person is taking measures to
correct for, or mitigate, a physical or mental impairment, the
effects of those measures . . . must be taken into account
when judging [a disability].”); Seifken, 65 F.3d at 667. Thus,
we agree with the trial judge’s determination that these
“adaptive techniques” were not “reasonable accommoda-
tions” within the meaning of the ADA.
Davis proposed additional accommodations that, in his
opinion, EGC supposedly could have undertaken to facil-
itate Hammel’s performance of some of the job’s essential
functions. Among these “proposed accommodations,”9 Davis
suggested that Hammel could learn to stamp the cheese
wheels correctly by having a “co-worker check on [his]
9
Davis also proposed that EGC could provide Hammel with
formal job training, even though EGC does not and has not in the
past provided any of its new employees with any different training
than Hammel received when he started the job. As stated infra,
this is not a reasonable accommodation under the ADA, as the
ADA “does not require employers to offer special training to
disabled employees.” Williams, 253 F.3d at 282. In addition, Davis
suggested EGC could allow Hammel to use a manual rather than
an electric pallet jack to move the pallets of cheese wheels. This
proposed accommodation does not account for potential slow-
downs in the production pace Hammel’s use of a manual pallet
jack could cause. See Hoffman, 256 F.3d at 573.
22 Nos. 03-3578 & 03-3687
stamping and teach him how to hold the stamp to make
sure that it printed.” Hammel, 2003 U.S. Dist. LEXIS 11380,
at *15. As the trial judge properly determined, this is not a
reasonable accommodation under the ADA. 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 his job. Id. at *26 (citing Peters v.
City of Mauston, 311 F.3d 835, 845-46 (7th Cir. 2002)). To
be sure, the ADA does not require an employer to accommo-
date a disabled employee by making special, individualized
training or supervision available in order to shepherd that
employee through what is an essential and legitimate
requirement of the job. Williams, 253 F.3d at 282 (“the
employer is not required to give the disabled employee
preferential treatment, as by giving her a job for which
another employee is better qualified, or by waving his
normal requirements for the job in question”); Sieberns v.
Wal-Mart Stores, Inc., 125 F.3d 1019, 1022 (7th Cir. 1997).
In this regard, let us make clear that the ADA “is not an
affirmative action statute in the sense of requiring an
employer to give preferential treatment to a disabled
employee merely on account of the employee’s disability,”
see Williams, 253 F.3d at 282, although it does provide
disabled persons an opportunity to work assuming accom-
modations exist which allow them to perform a job as would
any other employee. Accommodations which require special
dispensations and preferential treatment are not reasonable
under the ADA, thus Davis’s recommendation that Hammel
be given special training and provided with a person to
“check” up on him does not qualify as a reasonable accom-
modation.
Davis also proposed that Hammel and his fellow EGC
laborers could employ “verbal cues” to avoid bumping into
each other. However, we are of the opinion that it borders
on the absurd to even suggest implementing a measure of
Nos. 03-3578 & 03-3687 23
this nature in a factory setting of this type. The particular
work environment at EGC is excessively noisy and many
employees, out of necessity, are found to wear earplugs
while performing their duties. Because he would be unable
to hear them due to the excessive noise level, it is anti-
thetical and unreasonable to propose that based on verbal
cues Hammel could be prevented from colliding with walls,
equipment and other employees near the production line on
the busy work floor.
What’s more, Hammel’s proffered accommodations ad-
dress only a small portion of EGC’s legitimate concerns with
Hammel’s careless, unacceptable work performance, such as
his inability to legibly stamp the cheese wheels, avoid
collisions with machines and other employees and a myriad
of other problems. More importantly, these proposed mea-
sures do not address Hammel’s inability to perform a
significant number of his essential assignments, duties and
responsibilities at EGC, such as forming, stacking, and flip-
ping the cheeses. In Miller v. Illinois Dept. of Corrections,
this court addressed a similar situation in which a woman
who had suffered injuries in a car accident, resulting in an
almost complete loss of vision, was discharged from her
position as a prison guard. Miller, 107 F.3d at 484. Alleg-
edly, she was told by the warden that she was being fired
because “there was no way a blind person would ever work
in his Prison.” Id. We upheld the district court’s conclusion
that the guard was not a “qualified person” within the mean-
ing of the ADA, regardless of the allegedly distasteful and
irrational motivation behind her termination, because there
was no way that she could perform the essential duties of a
corrections officer. Id. at 485. In coming to this conclusion we
found persuasive evidence that, even with accommodations,
this woman could fulfill only two out of over ten job require-
ments of the position. Id. In turn we rejected her contention
that she should have been allowed to rotate between the two
functions which she could perform because “the reason for
24 Nos. 03-3578 & 03-3687
having multiple able workers who rotate through the
different positions is to be able to respond to unexpected
surges in the demand for particular abilities.” Id. Because
Miller was unable to perform the duties of her position as
a correctional officer and the prison officials could not offer
her reasonable accommodations that would allow her to
fulfill those duties, we held that she was not entitled to the
protections of the ADA. Id.As was the situation in Miller, Hammel and his voca-
tional expert failed to recommend to this court reasonable
accommodations that would allow him to perform the es-
sential duties required for employment as a laborer at EGC.
Id. In addition, Hammel was an insubordinate, reckless,
and thus undesirable employee, and we agree with the trial
judge’s conclusion that “[n]o accommodation would make a
difference for an employee unwilling to exercise care, accept
instruction or take responsibility for getting his work done
properly.” Hammel, 2003 U.S. Dist. LEXIS 11380, at *27
(emphasis added). Also, we agree with the district court’s
conclusion that Hammel is not a “qualified individual” with
a disability under the ADA, and thus is not entitled to the
protections thereof. Basith, 241 F.3d at 927; Bay, 212 F.3d
at 973; DePaoli, 140 F.3d at 674. As Judge Crabb noted,
perhaps “[EGC’s] business manager should have told
[Hammel] exactly why he was being fired rather than try to
sugar coat the news . . . . [but this] failing [does not] make
[EGC] liable to [Hammel] under the ADA.” Hammel, 2003
U.S. Dist. LEXIS 11380, at *28. The district court did not
commit clear error in concluding that EGC did not discrimi-
nate against Hammel because of his disability when it
terminated him.10
10
Because Hammel failed to demonstrate the existence of a rea-
sonable accommodation and because Hammel is not a “qualified
individual” under the ADA, we need not address his argument
(continued...)
Nos. 03-3578 & 03-3687 25
B. Alleged Evidentiary Errors by the District
Court
Hammel also argues that he is entitled to a new trial be-
cause the district court allegedly made evidentiary errors
when: 1) restricting the testimony of his vocational expert;
and 2) admitting for impeachment purposes evidence of a
cash gift he received from his father after leaving EGC and
the testimony of one of his former employers on the subject
of his poor attitude and work ethic. We review alleged evi-
dentiary errors under the abuse of discretion standard, and
will reverse only if the trial judge’s ruling was erroneous and
the error affected the outcome of the case. Cooper-Schut v.
Visteon Auto Sys., 361 F.3d 421, 429 (7th Cir. 2004).
1. Hammel’s Expert Witness Report
Hammel contends that the trial judge improperly re-
stricted the testimony of his vocational expert, Richard
Davis. The judge restricted Davis from testifying to the
opinions set forth in his expert witness report because
Hammel failed to timely disclose the report to EGC prior to
trial as required by Fed. R. Civ. P. 26(a)(2). The court
accordingly limited Davis’s testimony to those assertions
that had been disclosed in a timely-filed affidavit attached
to Hammel’s motion for summary judgment.
10
(...continued)
that EGC should be liable for failing to accommodate his disability
by not engaging in an “interactive process” to determine if any
reasonable accommodations existed. Mays v. Principi, 301 F.3d
866, 871 (7th Cir. 2002); see also Bombard v. Fort Wayne Newspa-
pers, Inc., 92 F.3d 560, 563-64 (7th Cir. 1996). We note only that
EGC did attempt to accommodate Hammel, by shifting his duties
and keeping him exclusively in the “make room.” See Hammel,
2003 U.S. Dist. LEXIS 11380, at *26.
26 Nos. 03-3578 & 03-3687
The Federal Rules of Civil Procedure require that an
expert’s report be disclosed “at least 90 days before the trial
date” in order for a party to make use of the report at trial.
Fed. R. Civ. P. 26(a)(2)(C); Miller v. Pfizer, Inc., 356 F.3d
1326, 1332 (10th Cir. 2004). The sanction for failing to
comply with Rule 26(a)(2)(C) is “automatic and mandatory”
exclusion from trial of the non-disclosed evidence under
Fed. R. Civ. P. 37(c)(1) “unless non-disclosure was justified
or harmless.” Musser v. Gentiva Health Servs., 356 F.3d
751, 758 (7th Cir. 2004). Hammel failed to disclose his ex-
pert witness’s report before trial and thus failed to comply
with Rule 26(a)(2)(C) and has failed to offer any explanation
as to why he did not make the report available to EGC. In
addition, Hammel has failed to offer any argument as to
why his failure to produce the report should be considered
harmless. Accordingly, we are of the opinion that the trial
court’s exclusion of Davis’s testimony as to his opinions on
the report was the proper sanction in light of Hammel’s
failure to comply with Rule 26(a)(2)(C), and based on the
record we also conclude that the court did not abuse its
discretion in imposing this sanction. Musser, 356 F.3d at
758.
2. EGC’s Impeachment Evidence
Hammel next argues that the district court erred in its
decision to admit evidence that EGC failed to disclose prior
to trial: 1) evidence of a cash gift he received after leaving
EGC; and 2) testimony of one of his former employers on
the subject of his poor attitude and work ethic. At trial,
EGC sought to enter both forms of evidence to impeach
statements Hammel made on cross-examination. Hammel
timely objected to admission of the evidence, arguing that
EGC failed to disclose prior to trial that it intended to offer
either evidence of the cash gift or the testimony by Hammel’s
former employer. See Fed. R. Civ. P. 26(a)(3). Finding that
the evidence was intended for impeachment purposes only,
the district court concluded that EGC was not required to
Nos. 03-3578 & 03-3687 27
disclose the evidence prior to trial and properly allowed
EGC to present it.
In accordance with Fed. R. Civ. P. 26 (a)(1)(A) & (3),
evidence offered “solely for impeachment purposes” does not
have to be disclosed prior to trial. See Musser, 356 F.3d at
756; DeBiasio v. Illinois Cent. R.R., 52 F.3d 678, 688 (7th
Cir. 1995).11 EGC offered evidence of a cash gift Hammel
received from his father when exploring the issue of whether
Hammel had received payment from any collateral sources
following his termination which could serve to offset his
request for an award of back pay from EGC.12 See Flowers
v. Komatsu Mining Sys., Inc., 165 F.3d 554, 558 (7th Cir.
1999). Hammel was asked on cross-examination if, after his
termination, he was “given any money even as a gift in
exchange for staying with his father,” and he answered that
he had not. To impeach Hammel’s answer, EGC offered
evidence of the $5,000 cash gift that Hammel received after
caring for his father: a $5,000 check and an accompanying
transaction statement referencing the check and containing
the notation “[t]his money was given to Paul [Hammel] as
[a] gift for taking care of Dad since last Nov.” Evidence of
the cash gift that Hammel received directly contradicted his
statement that he had not received such a gift.
We also conclude that the court did not abuse its discre-
tion when allowing EGC to present testimony from Hammel’s
former employer on the subject of his poor attitude and
work ethic. On cross examination, EGC asked Hammel a
11
Hammel also contends that EGC should have disclosed evidence
of the cash gift in response to a properly propounded discovery
request. See Varga v. Rockwell Int’l Corp., 242 F.3d 693, 697 (6th
Cir. 2001). Hammel, however, failed to produce any such discovery
request during the trial.
12
As a damage remedy, Hammel’s requested back pay from the
time of termination, lost future wages and benefits, and compen-
satory and punitive damages.
28 Nos. 03-3578 & 03-3687
series of questions concerning many aspects of his period of
employment at Schlosser Lumber in Durand, Wisconsin, the
job he held immediately prior to his employment at EGC.
Specifically, Hammel was asked if, while at Schlosser, he: 1)
was told that he was not “doing [his] job correctly”; 2)
“threatened the individuals at Schlosser Lumber with a
disability lawsuit if they fired [him]”; and 3) had walked off
the job and told his supervisor to “go to hell.” Hammel
answered “no” to all three questions. To impeach Hammel’s
answers to these questions, EGC introduced testimony from
Michael Berger, Hammel’s supervisor at Schlosser Lumber.
EGC first queried Berger as to whether he “ever [told] Mr.
Hammel that he had done [his] job incorrectly?” Berger’s
response was: “Yes, I did.” EGC next asked Berger if
Hammel “ever threaten[ed] to sue?” Berger’s answer to this
question was: “Yes, he did . . . . he said ‘I’ll sue you if you
fire me.’ ” Subsequently, EGC inquired as to how “Hammel’s
employment came to an end at Schlosser Lumber?” Berger’s
reply was: “One day he was . . . . more or less standing
there, and I told him, Get working . . . . and he went and got
all pissed off and called me a bunch of names and called me
a lot of things, and he walked off.” Berger’s testimony as to
these matters directly contradicted Hammel’s representa-
tions and suggests a lack of honesty; for Hammel claimed
that, while employed at Schlosser Lumber, he was never
told he was doing his job incorrectly, he never threatened to
file a lawsuit if terminated, and he never walked off the job
in the wake of a profanity-laced tirade. Berger’s testimony
thus served to impeach Hammel’s credibility as a witness.
Accordingly, we hold that the district court did not abuse its
discretion in admitting Berger’s testimony for impeachment
purposes, even though EGC failed to disclose Berger as a
witness before the trial.13 See DeBiasio, 52 F.3d at 688.
13
Hammel contends that EGC violated the spirit of Fed. R. Civ. P.
26 because it “intended to use” Berger’s testimony for purposes
(continued...)
Nos. 03-3578 & 03-3687 29
C. EGC’s Cross Appeal
In their conditional cross-appeal, EGC urges this court to
reverse the trial court’s grant of summary judgment in
Hammel’s favor on the issue of whether Hammel was ter-
minated on the basis of his disability. However, because we
have resolved this case in EGC’s favor, and uphold the trial
court’s subsequent judgment as a matter of law for EGC, we
need not address the cross-appeal. See Mathias v. Accor
Economy Lodging, Inc., 347 F.3d 672, 674 (7th Cir. 2003).
III. Conclusion
The decision of the district court is
AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
13
(...continued)
other than impeachment. Hammel fails to develop any argument
in support of this contention, so we need not address whether
Berger’s testimony was used for both impeachment and substan-
tive purposes, a scenario which may not be covered by the excep-
tion to the discovery requirements of Fed. R. Civ. P. 26 that we
have applied herein. Compare DeBiasio, 52 F.3d at 686 with
Wilson v. AM General Corp., 167 F.3d 1114, 1122 (7th Cir. 1999);
see also Klonoski v. Mahlab, 156 F.3d 255, 270 (1st Cir. 1998).
USCA-02-C-0072—5-11-05