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Germano v. International Profit Association

September 12, 2008


Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 06 C 5638-George W. Lindberg, Judge.

The opinion of the court was delivered by: Wood, Circuit Judge


Before BAUER, WOOD, and WILLIAMS, Circuit Judges.

Michael Germano is a man with a severe hearing impairment who applied for a tax advisor position with Defendant International Tax Advisors, Inc. ("ITA"). Believing that ITA rejected him for the position because of his disability, he filed suit against ITA in district court under the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12111-17 (2000). He also named as defendants other corporate entities involved in ITA's recruiting and hiring process; we refer to them collectively as ITA. The district court granted summary judgment in favor of the defendants, relying exclusively on its conclusion that the key evidence submitted by Germano in opposition to summary judgment was inadmissible hearsay. As we explain below, this was wrong. Once we restore his evidence to the picture, Germano has raised triable issues of fact with respect to each element of his discrimination claim. We therefore reverse the judgment of the district court and remand for further proceedings.


As usual, in deciding whether summary judgment is appropriate, we review the court's conclusions of law de novo and accept the facts in the light most favorable to the nonmoving party, drawing all reasonable inferences in his favor. Lapka v. Chertoff, 517 F.3d 974, 980-81 (7th Cir. 2008). The central question here is whether the district court should have excluded on hearsay grounds the evidence that Germano proffered; if so, the judgment for ITA stands, but if not, then summary judgment was inappropriate.

In opposing the defendants' motion for summary judgment, Germano relied in part on statements made by Ron Sage, an agent of ITA, during a telephone call between Sage and Germano. The wrinkle is this: Germano is deaf, and he thus must use a telecommunications relay service ("TRS") to communicate to persons with unimpaired hearing over the phone. To place a call, Germano uses a text telephone to send to the TRS the phone number of the party he wishes to reach. The TRS connects Germano to the first available operator, referred to in the industry as a communications assistant ("CA"), who dials the party's number over an ordinary telephone line. When Germano wants to say something to the person he called, he sends the message in text to the CA, who reads it verbatim to that person over the phone. (People with severe hearing impairments often also have difficulty speaking aloud in a way that is fully understandable to others. See, e.g., "A First Language: Whose Choice Is It?" Gallaudet Univ. Laurent Clerc National Deaf Educ. Center, at Sharing-Ideas/afirst/emphasis.html (last visited Aug. 25, 2008). Especially given the distortions of telephone lines, such a person might prefer to send his outgoing messages in text, as well as to receive his incoming messages in text.) When the person responds, the CA types the response verbatim in real time and sends that text to Germano. Communication proceeds back and forth in this way.

The district court held that Germano's deposition testimony about the content of the conversation that was conducted using the TRS between Sage and himself was inadmissible hearsay. If Sage and Germano had spoken to each other over an ordinary phone line as two hearing persons would have done, Germano could testify about Sage's remarks with no hearsay problems because Sage's statements would constitute admissions of a party-opponent,which are non-hearsay under FED. R. EVID. 801(d)(2)(D). The district court determined, however, that the only statements Germano perceived were those of the CA, and it found that the CA's statements were inadmissible hearsay. Whether this was correct is the question of law that is at the center of this appeal.



ITA begins with a familiar procedural argument: it asserts that Germano failed to raise this argument in the district court, and thus he cannot assert it here. We conclude that Germano did not forfeit the point. FED. R. EVID. 103 specifies how one should object to an erroneous ruling either admitting or excluding evidence. If the district court admits the contested evidence, the opponent must make a timely objection or motion to strike, "stating the specific ground of objection, if the specific ground was not apparent from the context[.]" Rule 103(a)(1). If, on the other hand, the district court excludes evidence that the party believes should have come in, then the only requirement is that "the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked." Rule 103(a)(2). In either event, the court's evidentiary ruling cannot be deemed erroneous unless it affected the substantial right of the objecting party-as it surely did for Germano.

We are satisfied that Germano's offer of proof, which he included in his response to ITA's motion for summary judgment, was enough to comply with Rule 103(a)(2). ITA argued in reply to Germano's brief that Germano's testimony about the TRS conversation was inadmissible hearsay. Germano had no further opportunity to litigate the evidentiary question at that point. He did, however, attempt to present his arguments on admissibility in his motion for reconsideration. In denying that motion, the district court commented that, because Germano made a motion to supplement the record with some signature pages after ITA filed its reply, he could also have petitioned the court for permission to brief the hearsay issue that ITA had raised. Perhaps so, but there is no provision giving a right to this kind of extra briefing in the Federal Rules of Civil Procedure or the Northern District of Illinois's local rules. The court's suggestion was also inconsistent with the thrust of Rule 103(a), which relieves a party from the need to reiterate its objection or offer of proof repeatedly. Germano was entitled to, and did, raise his argument in the motion for reconsideration. In our view, that was enough.

In light of the fact that we apply de novo review to the grant of summary judgment as well as to the resolution of the legal issue whether a particular statement constitutes hearsay, there is no institutional reason not to reach the merits of Germano's appeal. There is also no fairness problem, because ITA had the opportunity to address the issue before the district ...

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