133 F.3d 499,
506 (7th Cir. 1998). Second, he can show that he has a record of such
an impairment. See 42 U.S.C. § 12102(2). Third, he can show that the
defendant regarded him as having such an impairment. See
42 U.S.C. § 12102(2); see also Johnson v. American Chamber of
Commerce Publishers Inc., 108 F.3d 818, 819 (7th Cir. 1997) (the ADA
forbids discrimination against a person who is regarded as having an
impairment, even if they in fact are not impaired).
While Stone's Complaint alleges that he can establish a claim under all
three of these disability theories, his memorandum discusses only the
first two. See Def.'s Compl. at ¶ 7; Def.'s Mem. in Opp'n, pp. 8-11.
Thus, the Court will limit its discussion to the these two theories and
deem the third theory abandoned.
Actual Impairment That Substantially Limits One or More Life Activities
Major life activities are "functions such as caring for oneself,
performing manual tasks, walking, seeing, hearing, speaking, breathing,
learning, and working." 29 C.F.R. § 1630.2(1). "Other major life
activities could include lifting, reaching, sitting, or standing." See
Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 726 (5th Cir. 1995).
The only major life activity that Stone identifies in his Complaint is
his ability to work. His memorandum opposing the Defendants' Motion for
Summary Judgment asserts that he is also disabled with respect to walking
and sitting — two other major life activities.*fn2
Stone presents no medical evidence to substantiate any of his
disabilities. He states in his memorandum and his Statement of Additional
Undisputed Facts that he consulted doctors and obtained medical opinions
consonant with his alleged injuries and limitations, but he has opted not
to provide the Court with any medical evidence. Stone's failure to
provide the Court with competent medical evidence dooms his claims since
plaintiffs in ADA cases have "the burden of establishing with medical
evidence the existence of the alleged disability." See Weigert v.
Georgetown University, 120 F. Supp.2d 1, 7 (D.D.C. 2000). Stone tries to
save his claim by submitting his own affidavit and deposition in lieu of
a doctor's report, but this is to no avail. The Seventh Circuit has
pointed out on numerous occasions that "[s]elf-serving affidavits without
factual support in the record will not defeat a motion for summary
judgment." See McPhaul v. Board of Com'rs of Madison County, 226 F.3d 558,
564 (7th Cir. 2000) (quoting Slowiak v. Land O'Lakes, Inc., 987 F.2d 1293,
1295 (7th Cir. 1993). Likewise, "a litigant may not [generally] rely on
self-serving depositions to survive summary judgment." See also Jones v.
Merchants Nat. Bank & Trust Co., 42 F.3d 1054, 1057 (7th Cir. 1994).
Record of Impairment
Because Stone has not included any medical evidence to support his
claim and has not argued that the Defendants regarded him as being
disabled, the only way his claim can survive summary judgment is if he
can establish a record of impairment. See 42 U.S.C. § 12102(2)(B). A
plaintiff establishes a record of impairment by showing that he has "a
history of, or has been misclassified as having, a mental or
impairment that substantially limits one or more major life activities."
See 29 C.F.R. § 1630.2(k).
As with the first theory of disability, a successful claimant under
this theory must provide evidence beyond self-serving affidavits and
depositions. He must, as the ADA regulations state, provide a record of
impairment. Stone does not do this. He provides nothing but his own
affidavit and deposition. This is not enough to survive summary
judgment. See McPhaul, 226 F.3d at 564, Slowiak, 987 F.2d at 1295;
Jones, 42 F.3d at 1057 (7th Cir. 1994). Since Stone cannot establish the
first element of his prima facie case, he cannot establish an ADA claim.
Ergo, Defendants' Motion for Summary Judgment is ALLOWED.
Entered: October 11, 2001
UNITED STATES DISTRICT JUDGE
*fn2 Stone does not explain why he failed to include any reference to
these activities in his memorandum. Ordinarily, a plaintiff who fails to
allege claims in his complaint would be barred from asserting them during
summary judgment. It is only because Stone's assertions about his ability
to walk and sit have no bearing on the Defendants' motion that the C ourt
considers his additional claims.