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Uhl v. Zalk Josephs Fabricators

August 21, 1997




Appeal from the United States District Court for the Western District of Wisconsin. No. 95 C 0399 Barbara B. Crabb, Judge.

Before POSNER, Chief Judge, and CUMMINGS and EVANS, Circuit Judges.

EVANS, Circuit Judge.

Argued April 9, 1997

Decided AUGUST 21, 1997

A jury found that Zalk Josephs Fabricators, Inc., a Stoughton, Wisconsin, firm which fabricates structural steel for buildings, demoted one of its employees, 57-year-old Wayne Uhl, because of his age. But Uhl claims that age was not the only reason why Zalk demoted him--he says the company also violated the Americans With Disabilities Act, 42 U.S.C. sec. 21101 et seq. The jury, however, didn't hear about the ADA claim because the district judge gave it the boot on summary judgment. It is that decision we review today on Uhl's appeal.

Zalk hired Uhl back in 1976 to work as a foreman. In 1988 Uhl became shop superintendent, and soon after that he was promoted again to plant manager, responsible for production, delivery schedules, and supervision of foremen. In the early 1990's Uhl's supervisor was David Sailing, who once worked for Uhl as a welder but then was promoted to the higher position of production manager. Sailing reported to Jerry Renz and Lou Gurthet, Zalk's vice-president and president. Through 1992, Uhl received satisfactory job performance evaluations from Sailing. In 1990, for instance, Sailing rated Uhl's performance as a 2.5 on a scale of 1 (high) to 5 (low).

In early February 1992 Uhl was ill and sweating excessively while on the job. Seeing Uhl looking poorly, Sailing told another employee "I should just fire [Uhl], because he is just not doing his job." A few days later Uhl was diagnosed as having diabetes. After the diagnosis, Sailing told Uhl about a diabetic friend whose limb had to be amputated and who was "really screwed up" because of it.

Uhl's diabetes, from what we can see, did not impair his ability to perform his job duties. In January 1993, though, Uhl received a poor evaluation from Sailing--a 3.88 rating. After Uhl complained that the evaluation was unfair, Sailing reconsidered and improved the rating slightly. Six months later Sailing gave Uhl an evaluation noting "much improved" work performance, with a rating similar to the one he had back in 1990. On January 21, 1994, however, Uhl was demoted back to foreman, resulting in a $3,000 pay cut. The demotion occurred at the behest of Sailing, who complained to Renz and Gurthet about a lack of productivity, which Sailing attributed to Uhl's poor management. After Uhl's demotion, Sailing absorbed Uhl's job duties in addition to his own.

In June of 1995, Uhl filed a complaint alleging violations of both the ADA and the Age Discrimination in Employment Act, 29 U.S.C. sec. 621 et seq. In regard to the ADA claim, Uhl asserted that he was demoted either because of his diabetes or because Zalk perceived his diabetes to be a disability. In October 1995 Zalk filed an offer of judgment for $50,000 which Uhl, unwisely in hindsight, rejected. Zalk then moved for partial summary judgment on the ADA claim, arguing that Uhl could prove no causal connection between his demotion and his diabetes. District Judge Barbara Crabb granted the motion and denied Uhl's motion for reconsideration. In her written decision on the motion for reconsideration, the judge indicated that Uhl improperly labeled and presented as "new evidence" information from deposition transcripts that he could have brought to her attention prior to the summary judgment decision. The judge also concluded, however, that the tardy evidence made no difference in her decision.

At the end of a 1996 trial on the age discrimination claim the jury found Zalk liable, but the damages on that claim, both past and future, turned out (due to a stipulation) to be only $21,744. Because he recovered less than the offer of judgment (which Judge Crabb, over objection, found to be valid), Uhl had to pay Zalk's costs from the date of the offer.

Uhl appeals only the grant of partial summary judgment dismissing his ADA claim, but before we move to the issue we must address a preliminary matter regarding Uhl's appellate briefs. Zalk filed a motion to strike certain portions of Uhl's initial brief, claiming it relies on deposition testimony not presented to Judge Crabb prior to her summary judgment decision. Uhl refers to the deposition testimony of Deborah Lynch, Willard Reck, and three other co-workers. Our review of Uhl's filings in the district court (we note that Uhl changed attorneys after the trial) confirms that the referenced testimony of Lynch and Reck was not brought to Judge Crabb's attention until the motion for reconsideration, which was too late. As the judge indicated, Uhl knew about this evidence long before filing his summary judgment response brief, making the information from the depositions untimely. Moreover, much of the other testimony Uhl relies on now was not presented to the district court at all.

Uhl contends that he filed full deposition transcripts with the district court, so the now-referenced testimony is part of the record on appeal and we can consider it. Not so fast. We think it important to emphasize the proper presentation of evidence to the district court and to us. And here, Uhl provides a good example of what not to do.

None of the deposition testimony now mentioned was addressed in his brief in response to Zalk's November 1995 summary judgment motion. Although the earliest transcripts were filed in January 1996, which was prior to Judge Crabb's decision, they nevertheless were filed 6 weeks after Uhl's response brief and over a month after Zalk's reply; others, such as the Lynch deposition transcript, were filed after the summary judgment decision itself. Needless to say, a district judge isn't obligated to consider untimely presented evidence, and neither are we. In addition, relying simply on the fact that he filed the full transcripts with the clerk, Uhl never pointed out to the district judge the pertinent portions of testimony until the motion for reconsideration, and even then he didn't discuss all that he relies on now. Uhl bore the burden of identifying specific evidence so Zalk could respond and the court could determine whether a material issue of fact existed. The district court was not obligated to scour the record looking for factual disputes; the judge was not required to sift through every transcript Uhl filed to find testimony to back up his case. See Flaherty v. Gas Research Institute, 31 F.3d 451, 453 (7th Cir. 1994); Waldridge v. American Hoechst Corp., 24 F.3d 918, 922 (7th Cir. 1994); see also Fed. R. Civ. P. 56(e) (nonmovant's response "must set forth specific facts showing that there is a genuine issue for trial" (emphasis added)). The motion to strike is granted. Now to the issue that is properly before us.

The ADA prohibits discrimination against a "qualified individual with a disability because of the disability." 42 U.S.C. sec. 12112(a). Like other discrimination suits, ADA cases can be established by direct evidence or through the "McDonnell Douglas" indirect method of proof. See McDonnell Douglas Corp. v. Green, 411 ...

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