Louis V. Nese v. JULIAN NORDIC CONSTRUCTION COMPANY and ADMINISTAFF

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-2576
L OUIS V. N ESE ,
Plaintiff-Appellant,
v.
J ULIAN N ORDIC C ONSTRUCTION
C OMPANY and A DMINISTAFF ,
Defendants-Appellees.
____________
Appeal from the United States District Court for
the Northern District of Illinois, Eastern Division.
No. 02 C 5839—John W. Darrah, Judge.
____________
A RGUED F EBRUARY 8, 2005—D ECIDED A PRIL 27, 2005
____________
Before R IPPLE , E VANS , and W ILLIAMS , Circuit Judges.
E VANS , Circuit Judge. Louis Nese claims that his em-
ployer violated the Americans with Disabilities Act, 42 U.S.C.
§ 12101 (ADA), by reducing his wages and then terminating
him because of its incorrect perception that he had a
disability. The district court granted summary judgment for
the employer and Nese appeals.
Nese, who is now in his forties, began having epileptic
seizures when he was 15 years old. He has taken prescrip-

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2 No. 04-2576
tion medication to control his seizures for about 27 years.
He experiences no side effects from the medication and has
regularly worked as a carpenter for various employers,
including Handy Andy and Builders Square. He has also
run a company of his own, though it apparently was not
profitable. The defendant, Julian and Nordic Industries,
Inc. (that’s the name we find in one brief—the other says
Nordic Construction Services, Inc.), which we will refer to
as Nordic, is a general contractor providing commercial and
residential services and fire and water damage restoration.
Administaff is a professional personnel management
company, providing services to Nordic.
Prior to Nese’s employment with Nordic and while he ran
his own business, he was a member of the Downers Grove
(Illinois) Chamber of Commerce and of a business network-
ing group called the Lodge. Only one construction contrac-
tor was allowed to be a member of the Lodge. Nese held
that membership. Also, though, Tom Julian, the owner of
Nordic, was a member of the Lodge in his capacity not as a
contractor, but as the owner of a cleaning service. The two
men were acquainted and, in fact, it appears that Julian
was instrumental in obtaining Nese’s membership in the
Lodge. The two men also assisted each other in generating
business.
In August 2000, Julian hired Nese to work for Nordic on
a 90-day trial basis. Nese informed Julian that he did not
have a driver’s license at that time because he had suffered
a seizure. Nevertheless, Julian hired him and provided
another employee to drive Nese to work until he was able
to regain his driver’s license. Nese’s hourly rate of pay was
$22.50 per hour.
However, in February 2001, Nese’s hourly rate was re-
duced to $18.00 per hour. The controversy between the par-
ties arises at this point. The wage rate was changed either
because Nese’s work pace was not up to the standard of the

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No. 04-2576 3
other carpenters or because other workers were making less
and the disparity was causing a problem. There is a con-
troversy also over whether any Nordic employee had talked
to Nese about problems with his work. When Nese’s hourly
rate was decreased, Julian completed an employee status
change form which, at that time, did not contain any
comments regarding the pace of his work. At some time,
however, the form was amended and a comment was added
that Nese’s “[w]ork pace is not to standards of peers.”
As to the pace of his work, Nese contends that it “may not
have been exactly” like that of the other workers, but it was
comparable. His supervisor, Gary Boerma, asked Nese and
other carpenters to pick up the pace. Then in September
2001, Boerma completed a performance evaluation of Nese.
The evaluation, in its present form, has a section covered
with “white-out.” Nese says the white-out was not there
when he first saw the evaluation. Boerma says it was and
that it covered a comment that another Nordic employee
found unprofessional. The original comment was, “Louis has
worked for himself for a long time and has apparently never
had to shift gears.” After that comment was covered,
Boerma wrote, “He needs to complete assigned task within
acceptable time frame, also needs to learn new tasks and
methods.” A month later, Nese was given a raise to $18.50
per hour.
Then in November 2001, Nordic received a letter from a
legal advocacy group acting on Nese’s behalf. The letter
accused Nordic of possible discriminatory acts relating to
the company’s treatment of Nese. In January 2002, Nese
was transferred to the side of Nordic’s business which did
insurance repair work. Julian completed an employee status
change form that documented the transfer. On the form,
Julian wrote, “Pace of work is still a problem—smaller jobs
will be better suited to gauge pace.” A few weeks later, Nese
was placed on temporary layoff due to lack of work. By
October, Nese apparently felt that he had been fired.

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4 No. 04-2576
Following the layoff, Nese worked fixing up a home and
since May 2003 has worked for a company called One Stop
Construction. He admits that he can perform carpentry
work.
The basis of Nese’s appeal is, of course, that in some man-
ner Nordic lowered his wages and then terminated him
because of his disability—epilepsy. He does not claim,
however, that his epilepsy actually makes him disabled with-
in the meaning of the ADA. His claim is that Nordic per-
ceived him as disabled and then made adverse employment
decisions because of that perception.
We review the grant of summary judgment de novo. Silk
v. City of Chicago, 194 F.3d 788 (7th Cir. 1999). Summary
judgment is appropriate if on the record as a whole “there
is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.”
Fed. R. Civ. P. 56(c).
To establish disability discrimination, Nese must show
that he is disabled within the meaning of the ADA, that he
is qualified to perform the essential functions of the job,
either with or without a reasonable accommodation, and
that he suffered from an adverse employment action be-
cause of his disability. Byrne v. Board of Educ., School of
West Allis-West Milwaukee, 979 F.2d 560 (7th Cir. 1992). In
order to establish his prima facie case that he is disabled,
Nese can show either (1) that he has a physical or mental
impairment that substantially limits him in one or more
major life activities; (2) that he has a record of such an
impairment; or (3) that the employer regarded him as having
such an impairment. 42 U.S.C. § 12102(2). If his condition
does not meet one of these categories even if he was termi-
nated because of some medical condition, he is not disabled
within the meaning of the Act. The ADA is not a general
protection for medically afflicted persons. Christian v. St.
Anthony Med. Ctr., Inc., 117 F.3d 1051 (7th Cir. 1997). As

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No. 04-2576 5
we said, Nese is contending not that he is actually disabled,
but that Nordic regarded him as disabled. Under a “regarded
as” claim, a plaintiff must prove that either: (1) the em-
ployer mistakenly believes the employee has a physical
impairment that substantially limits a major life activity;
or (2) the employer mistakenly believes that an actual,
nonlimiting impairment substantially limits a major life
activity. Amadio v. Ford Motor Co., 238 F.3d 919, 925 (7th
Cir. 2001) (citing Sutton v. United Air Lines, Inc., 527 U.S.
471, 489 (1999)); see also 29 C.F.R. § 1630.2(l). In other
words, the employer “must believe either that one has a
substantially limiting impairment that one does not have or
that one has a substantially limiting impairment when, in
fact, the impairment is not so limiting.” Sutton v.
United Air Lines, Inc., 527 U.S. 471, 489 (1999); see also
Peters v. City of Mauston, 311 F.3d 835 (7th Cir. 2002).
If an ADA plaintiff establishes a prima facie case, the
burden shifts to the employer to offer a legitimate nondis-
criminatory reason for the employment decision. If the
employer succeeds, then the burden reverts to the plaintiff
to show that there is a genuine dispute of material fact that
the proffered reason for the employment action is pre-
textual. DeLuca v. Winer Indus., Inc., 53 F.3d 793, 797 (7th
Cir. 1995) (applying the indirect method of proof to ADA
cases).
Perhaps realizing that there is nothing in this record to
show that epilepsy had anything to do with Nordic’s actions,
nor has it limited his ability to work, Nese contends that he
should prevail at the summary judgment stage because
evidence that Nordic was aware of his seizure disorder
should be combined with the evidence that Nordic “con-
cocted” a pretextual justification for the termination—that
is, that his work pace was slow. He sees evidence of pretext
in the fact that the evaluation form has a whited-out
statement. Nese wants us to collapse the requirement for a
prima facie case under McDonnell Douglas Corp. v. Green,

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6 No. 04-2576
411 U.S. 792 (1973), with the requirement that a plaintiff
show that the defendant’s reason for the employment action
was pretextual. Basically, the argument is that if the
company’s reason for the employment action was somehow
less than straightforward, we can draw the conclusion that
the company must necessarily have been acting out of its
perception that Nese was disabled. Nese asks too much.
The source of the argument is a case from the Court of
Appeals for the Sixth Circuit—Ross v. Campbell Soup Co.,
237 F.3d 701, 708 (2001). The court stated:
Because, under the “regarded as” prong, Ross’s prima
facie showing that he is disabled turns upon the em-
ployer’s state of mind and how it thought Ross’s back
condition affected his performance as an employee,
evidence of the employer’s state of mind that would
ordinarily be used to prove motive or discriminatory
intent may also be probative of Ross’s status as a
person with a disability as defined by the ADA. Thus,
evidence that the company created a pretextual reason
for Ross’s firing may tend to prove that it regarded Ross
as a disabled employee.
A later case from the same court may, however, reveal the
limits of the Ross holding. In Cotter v. Ajilon Services, Inc.,
287 F.3d 593 (2002), the court agreed with the Ross panel’s
sympathy for plaintiffs because of the steep challenge they
face in proving that an employer regarded them as substan-
tially limited in their ability to work. However, in upholding
judgment for the employer, the Cotter court distinguished
Ross: “In Ross, there was substantial evidence that the
plaintiff’s medical status significantly influenced his
employer’s decision to terminate him; here, the evidence is
insubstantial, and certainly far less compelling than in
Ross.” The court concluded that Cotter did not offer suf-
ficient evidence to support a conclusion by a rational trier
of fact that he was disabled or regarded as disabled within

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No. 04-2576 7
the meaning of the ADA. In other words, the court required
some basis to support the leap from evidence of pretext to
a conclusion that disability discrimination must have been
afoot.
The Ross approach was soundly rejected by the Court of
Appeals for the Tenth Circuit in Rakity v. Dillon Companies,
Inc., 302 F.3d 1152, 1165 (2002):
Mr. Rakity interprets Ross to mean the issue of pretex-
tually concealed discrimination and the issue of “regarded
as” disabled should be treated as one and the same.
This proposed modification of the McDonnell Douglas
framework would open the protected class to individuals
who neither have an actual disability nor can even
present triable evidence their employer believed they
have a disability. We do not think the Sixth Circuit in-
tended such an interpretation, and if it did, we decline
to follow it.
Like the Tenth Circuit, we also decline to follow Ross.
An employer is not guilty of discrimination every time it
takes an employment action for one reason, but provides a
different explanation to the employee. For example, perhaps
the employer terminates an employee simply because her
supervisor does not get along with her. That might not be
a reason the employer wants to admit openly, so, instead,
work deficiencies—real or imagined—are cited as the basis
for the action. Even though we could wish such shenanigans
never happened, we suspect they do, and they do not violate
the employment laws unless, for instance, the real reason
the supervisor dislikes the employee is based on some
protected characteristic. That is why the employee must
first establish that she falls into a protected group before
we look at either real reasons or pretextual ones for the
employment action. In other words, to say the employer was
less than perfectly frank does not prove that the employer
acted as it did for discriminatory reasons.

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8 No. 04-2576
We will examine Nese’s claim in the same manner that we
have long examined all such claims. Nese is an epeliptic. A
medical condition, however, by itself does not constitute a
disability under the statute. Toyota Motor Mfg., Ky., Inc. v.
Williams, 534 U.S. 184 (2002); Krocka v. City of Chicago,
203 F.3d 507 (7th Cir. 2000); Moore v. J.B. Hunt Transp.,
Inc., 221 F.3d 944 (7th Cir. 2000). To show that he was
disabled under the ADA, Nese must show that Nordic was
aware of his impairment (which it was) and that Nordic
believed that he was substantially limited in a major life
activity (in this case, working) because of the impairment.
Skorup v. Modern Door Corp., 153 F.3d 512 (7th Cir. 1998).
Nordic must have believed Nese was unable to work in a
particular class or broad range of jobs. With respect to the
major life activity of work, as we noted in Moore, the stand-
ards applicable to an actual disability apply as well to a
perceived disability. Section 12102(2) looks beyond the
plaintiff’s inability to satisfy one employer. To be a substan-
tial limitation on his ability to work, the limitation “must be
one that affects the plaintiff’s ability to perform a class or
range of jobs before it qualifies as a disabling limitation
under the ADA.” Skorup, 153 F.3d at 515. There simply is
no evidence in this record that under this standard Nordic
perceived Nese as disabled. In fact, Nese was hired even
though he told Julian that he could not drive at that time
because he had suffered a seizure. Also, as an aside, we will
mention that the same person who hired Nese is the one who
fired him. In that situation, we have said that it is unlikely
that discrimination is involved. The conclusion is based on
a common-sense psychological assumption, that “[i]t hardly
makes sense to hire workers from a group one dislikes
(thereby incurring the psychological costs of associating
with them), only to fire them once they are on the job.”
[Citations omitted.] Johnson v. Zema Sys. Corp., 170 F.3d
734, 745 (7th Cir. 1999).
Finally, the evidence of pretext is itself thin. The claim is,
in part, that the statement “Louis has worked for himself

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No. 04-2576 9
for a long time and has apparently never had to shift gears”
was covered up and the statement “He needs to complete
assigned task within acceptable time frame, also needs to
learn new tasks and methods” was substituted. We are at
a loss to understand how the former statement reveals dis-
crimination or, in fact, how it is significantly different from
the latter. The comment that Nese had no ability to shift
gears can be interpreted as saying he needed to learn new
tasks, etc. The fact that he worked for himself might also be
seen as a reason that he did not complete tasks in a time
frame acceptable to Nordic. Nothing indicates a belief that
the reason Nese’s work was not quite up to par was that he
was disabled and unable to perform a broad range of jobs.
For these reasons, the judgment of the district court is
A FFIRMED .
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-27-05

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