Hopkins, Glenn J. v. Godfather's Pizza , 141 F. App'x 473 ( 2005 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted June 8, 20051
Decided July 13, 2005
Before
Hon. RICHARD D. CUDAHY, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 04-4172
GLENN JOSEPH HOPKINS, Appeal from the United States
Plaintiff-Appellant, District Court for the Central
District of Illinois
v.
No. CV-02-3206
GODFATHER’S PIZZA, INC., and
BETH WRIGHT, Jeanne E. Scott, Judge.
Defendants-Appellees.
ORDER
In this appeal, Glenn Joseph Hopkins claims that the district court abused
its discretion in denying his motion for relief from summary judgment with respect
to his claims of discrimination and retaliation under the Americans with
Disabilities Act (ADA). We affirm.
1
After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
No. 04-4172 Page 2
I
Glen Hopkins began his employment as a part-time delivery driver for
Godfather’s Pizza on January 19, 2001. At the time, Godfather’s Pizza was aware
that Hopkins has a neuromuscular condition that limits his ability to lift and bend,
and Godfather’s Pizza indicated it would accommodate his disability. In addition to
delivering pizzas, Hopkins also was required to perform a variety of other tasks
including mopping and scrubbing floors, performing general cleaning, washing
dishes, folding boxes and helping with the trash. If Hopkins was unable to perform
any assigned task due to his disability, he generally sought – and Godfather’s Pizza
generally approved – an appropriate accommodation. For example, he was excused
from taking out the trash when it involved heavy lifting, and he was excused from
cleaning the walls when it required balancing on a ladder. Hopkins has no
complaints about his work environment through May 10, 2001.
On May 10, 2001, Hopkins severely burned his left hand in a non-work-
related incident. He was excused from his dish washing duties on May 10-11 due to
his injury, but was instructed by Store Manager Beth Wright to wash dishes on
May 12. Wright again demanded that Hopkins wash dishes on May 17, 2001. The
record is unclear as to whether Hopkins would be a dishwasher only on that date or
if Wright intended the switch to be permanent. Hopkins was concerned that his
now infected hand would not allow him to physically manage a permanent transfer
to the dishwasher position. Hopkins unsuccessfully attempted to discuss his
concern about the dishwasher position with Wright on May 17.
While washing dishes on May 17, Hopkins’ infected hand began to bleed. An
assistant store manager advised Hopkins to leave work and seek medical attention.
On May 18, Hopkins returned to work with a doctor’s note. However, Wright
informed him that he was fired for abandoning his job the previous day. Later that
day, Hopkins protested his termination to Therese Piersee, Director of Human
Resources at Godfather’s Pizza’s corporate office. Piersee immediately overruled
Wright’s decision and instructed Hopkins to return to work as a delivery driver as
soon as he received his doctor’s clearance to work again.
By June 6, 2001, Hopkins’ hand had healed sufficiently that his doctor
cleared him to work. Hopkins returned to work on June 11 and worked 17.57 hours
for the week of June 11 to June 17, 2001. He worked 9.05 hours for the week of
June 18 to June 24, 2001. Hopkins asserts that he was only scheduled to work
eight hours for the week of June 25 to July 1, 2001. Prior to his injury, Hopkins’
work hours had fluctuated from a low of 7.18 hours during the week of March 26 to
April 1, 2001 to a high of 24.87 hours for the week of February 26 to March 4, 2001.
Overall, he averaged 18.47 hours per week. Godfather’s Pizza explained that
Hopkins’ work hours fluctuated based on the store’s sales projections.
No. 04-4172 Page 3
Hopkins complained to Wright about the reduction in his scheduled hours
and told her he needed to work more hours to pay off an outstanding traffic ticket
or risk losing his driver’s license. When he complained to the Godfather’s Pizza’s
Human Resources Department, he was informed that work schedules were within
the discretion of the store manager. Believing that he would never work a
sufficient number of hours at Godfather’s Pizza, Hopkins submitted his voluntary
resignation to Piersee on June 24, 2001. Hopkins then sent a letter of complaint to
the Illinois Department of Human Rights (“IDHR”) on June 25, 2001, alleging that
Godfather’s Pizza had retaliated against him for complaining about his working
conditions and his brief termination. He filed a formal charge with the IDHR on
July 17, 2001.
Hopkins initiated the present action in the United States District Court for
the Central District of Illinois on August 13, 2002, alleging that Godfather’s Pizza,
Inc. and Beth Wright had discriminated against him based on his physical
disability and retaliated against him for complaining about his working conditions
in violation of the Americans with Disabilities Act (ADA). The district court
entered an order on August 20, 2004 granting defendants’ motion for summary
judgment and denied Hopkins’ cross motion for summary judgment. On September
10, Hopkins filed a Rule 60(b)(6) motion requesting relief from summary judgment.
The district court entered an order denying this motion on November 16, 2004.
Hopkins now appeals the district court’s denial of his motion requesting relief from
summary judgment.
II
The district court appeared to be unsure whether Hopkins’ motion for relief
should be analyzed under Federal Rule of Civil Procedure 59(e) or 60(b). Both
Rules provide for relief from judgment on various grounds, but the more lenient
Rule 59(e) applies only to motions filed within 10 days of the judgment at issue.
See United States v. Deutsch, 981 F.2d 299, 301 (7th Cir. 1992). Hopkins’ initial
motion for relief was filed within this 10-day period, but it was not signed until the
eleventh day. However, nothing turns on the specific choice of rule. We review the
district court’s decision for an abuse of discretion – and Hopkins’ claim for relief
must fail – under either rule. See Romo v. Gulf Stream Coach, Inc., 250 F.3d 1119,
1121 n.3 (7th Cir. 2001).2
2
We note at the outset that Hopkins does not appear to include Beth Wright
as an individual defendant-appellee in his brief, nor does he contest the district
court’s ruling that Wright, as an individual supervisor, cannot be liable for
discrimination or retaliation under the ADA. But whether or not Hopkins intended
to exclude Wright from the current appeal, we pause to note that the district court’s
ruling on this score was correct, Silk v. City of Chi., 194 F.3d 788, 797 n.5 (7th Cir.
1999), and we will consider Godfather’s Pizza as the sole appellee.
No. 04-4172 Page 4
Hopkins’ appeal alleges that the district court abused its discretion when it
held that he had not made out a prima facie case of discrimination or retaliation
under the ADA. To sustain either claim, Hopkins must demonstrate that he has
suffered an adverse employment action. See Dvorak v. Mostardi Platt Assocs., Inc.,
289 F.3d 479, 483 (7th Cir. 2002) (ADA discrimination claim); Pugh v. City of
Attica, Ind., 259 F.3d 619, 630 n.9 (7th Cir. 2001) (ADA retaliation claim). An
adverse employment action is broadly defined as a “materially adverse change in
the terms and conditions of employment.” Cerros v. Steel Techs., Inc., 288 F.3d
1040, 1044 (7th Cir. 2002). However, Hopkins’ momentary termination and
immediate reinstatement on May 18, 2001 did not alter the terms and conditions of
his employment for ADA purposes. In fact the internal corporate appeals process
functioned exactly as it was supposed to, reversing Hopkins’ termination on the
same day that it occurred. Likewise, we cannot say that the district court abused
its discretion in determining that the reduction in Hopkins’ hours was not an
adverse employment action. Throughout the period covered by this appeal,
Hopkins’ hours of work were within the range of hours he typically worked in a
week. In addition, he was still scheduled to work more hours than any other part-
time delivery driver when he submitted his voluntary resignation. The district
court did not abuse its discretion in determining that Hopkins has suffered no
adverse employment action, and on this basis alone his discrimination and
retaliation claims must fail.
Further, any discrimination claim based on Hopkins’ injured hand fails for
the additional reason that his hand injury does not qualify as a disability under the
ADA. An impairment only rises to the level of a disability when its “impact [is]
permanent or long term.” Toyota Motor Mfg., Ky, Inc. v. Williams, 534 U.S. 184,
198 (2002). “Intermittent, episodic impairments are not disabilities, the standard
example being a broken leg.” Vande Zande v. State of Wis. Dep’t of Admin., 44 F.3d
538, 544 (7th Cir. 1995). Since Hopkins’ injured hand healed sufficiently for him to
return to work within a month, its impact was neither permanent nor long-term.
The district court did not abuse its discretion by concluding that these injuries do
not constitute a disability under the ADA.
Hopkins attempts to revive his claims by asserting that he was under duress
when he agreed to wash dishes on May 12, 2001, and that his resulting infected
hand, absence from work and lost pay constitute an adverse employment action.
This is a dubious argument even on its own terms, but in any event Hopkins has
waived it by not raising it before the district court. See Anderson v. Flexel, Inc., 47
F.3d 243, 247 (7th Cir. 1995) (“[P]ost-judgment motions cannot be used to raise
arguments or legal theories that could have been and should have been brought
before judgment.”); Bordelon v. Chicago Sch. Reform Bd. of Trs., 233 F.3d 524, 529
(7th Cir. 2000) (Rule 59(e) “does not allow a party to introduce new evidence or
advance arguments that could and should have been presented to the district court
prior to the judgment”).
No. 04-4172 Page 5
Hopkins also contends that the district court abused its discretion by
excluding his letter to the IDHR as evidence supporting his retaliation claim. The
district court excluded the IDHR letter because it failed to satisfy the Rule 56(e)
requirement that supporting affidavits be sworn or certified. Fed. R. Civ. P. 56(e);
Scott v. Edinburg, 346 F.3d 752, 760 n.7 (7th Cir. 2003). Hopkins himself
acknowledges that the letter to the IDHR was neither sworn nor certified, and thus
the district court’s exclusion of the letter was not an abuse of discretion.
Finally, Hopkins contends that the district court’s violated his due process
rights when it failed to appoint counsel to represent him. Hopkins asserts that
appointed counsel was necessary because of his limitations resulting from a mental
impairment. However, this due process claim was not presented to the district
court. We will not consider issues and arguments raised for the first time on
appeal. Republic Tobacco Co. v. N. Atl. Trading Co., 381 F.3d 717, 728 (7th Cir.
2004).
III
For the foregoing reasons, we AFFIRM the district court’s denial of Hopkins’
motion for relief from judgment.