In the

United States Court of Appeals

For the Seventh Circuit

No. 07-3183

FRANK BRUNKER,

Plaintiff-Appellant,

v.

SCHWAN’S HOME SERVICE, INC.,

Defendant-Appellee.

Appeal from the United States District Court 

for the Northern District of Indiana, Hammond Division. 

No. 2:04 CV 478—James T. Moody, Judge.

ARGUED SEPTEMBER 16, 2008—DECIDED OCTOBER 22, 2009

Before CUDAHY, FLAUM, and ROVNER, Circuit Judges.

ROVNER, Circuit Judge. Frank Brunker sued Schwan’s

Home Service, Inc., his former employer, for disability

discrimination and failure to accommodate in violation

of the Americans with Disabilities Act (“ADA”), 42 U.S.C.

§§ 12101 et seq. On appeal he challenges the district

court’s grant of summary judgment for Schwan’s, in

which the court determined that Brunker was not disabled. He also challenges earlier rulings denying his
2 No. 07-3183

motions to compel discovery and imposing sanctions on

him for filing those motions. We reverse the grant of

summary judgment, reverse the denial of a motion to

compel, and vacate the award of sanctions.

I.

Schwan’s, a home-delivery food service, hired Brunker

in November 2002 as a Route Manager for its Valparaiso

Depot. As a Route Manager, Brunker sold and delivered

frozen food and other company products to customers. In

February 2003, Brunker started to experience shaking in

his hands, slurred speech, dizziness, lightheadedness, and

headaches. These symptoms occurred once or twice

every day in February and made it difficult for him to

write, walk, speak, and drive. The dizziness lasted up to

four hours each day. Brunker’s doctor performed an

MRI and told him that he might suffer from multiple

sclerosis. Brunker then gave Schwan’s a note from his

doctor requesting that he avoid driving until the cause of

his dizziness was diagnosed. Schwan’s responded by

placing Brunker on disability leave.

Brunker’s doctor wrote another note two months later,

releasing him to return to light-duty work. He was still

restricted from driving, so Schwan’s assigned another

employee to drive with him on his route. The following

month Brunker returned to work without any restrictions

and drove his route on his own, completing it just as

quickly as he had in the past. Within four months of

Brunker resuming his driving, Brunker told Chuck Ramey,
No. 07-3183 3

his then-supervisor, that he wanted to go to the Mayo

Clinic for additional tests and treatment. Around the

same time, Ramey wrote up Brunker for failing to run a

rescheduled route. 

On September 8, the day before Brunker left for the

clinic, Ramey wrote up Brunker again, this time for

writing a check with insufficient funds to a fellow employee; depositing a post-dated check from a customer

earlier than instructed; and failing to adhere to Schwan’s

dress code. Ramey also insisted that Brunker’s route

books needed to be in order before he left. At the clinic,

Brunker was diagnosed with multiple sclerosis, but his

doctor noted that his dizziness episodes, previously a

daily occurrence, had diminished in frequency. Brunker

also told the doctor that his writing difficulty was now just

“variable” and his speech slurred only when he was

fatigued. 

During the time Brunker was away at the Mayo Clinic,

Ramey drove Brunker’s route. Ramey claimed that

Brunker had not been servicing hundreds of his customers and had falsified his daily records. When Brunker

returned two weeks later, after being diagnosed with

multiple sclerosis, Ramey fired him, citing “unsatisfactory

performance” and “unable to perform essential job functions” on the termination form. He backdated the termination to September 9, the day Brunker left for the clinic

and before his diagnosis of multiple sclerosis.

As discovery in the district court proceeded, Brunker

sought to compel numerous discovery requests: Schwan’s

financial information; its anti-discrimination training;
4 No. 07-3183

The magistrate judge accepted this argument, but it is

1

incorrect. An employer accused of discrimination cannot limit

discovery simply by restricting during litigation its stated

reasons for an adverse action. After all, the true reason behind

the action is the very heart of the case, and Brunker presented

evidence that Schwan’s may have asserted reasons for firing him

other than the one it relied on during litigation. An employer’s

shifting explanations are evidence that its stated reasons did not

truly motivate the adverse action and that an impermissible one

actually did. Rudin v. Lincoln Land Cmty. Coll., 420 F.3d 712, 726

(7th Cir. 2005) (“[T]he factfinder’s disbelief of the reasons put

forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the

elements of the prima facie case, suffice to show intentional

discrimination.”) (citation omitted); Appelbaum v. Milwaukee

Metro. Sewerage Dist., 340 F.3d 573, 579 (7th Cir. 2003) (same);

Krchnavy v. Limagrain Genetics Corp., 294 F.3d 871, 876-77 (7th

(continued...)

and several personnel files (for route managers with light

duty work, for route managers who were disciplined for

dress-code or route-book violations, for his last and prior

supervisors, for a terminated route manager (Barry

Dwyer), and for a disabled route manager (Mike

Devereaux)). He also requested that his former supervisor,

Zoltan Szabo, who had accused Brunker of dishonesty,

reveal the dishonest conduct that had led to his own

termination. Schwan’s opposed most of this discovery and

contended that because Schwan’s would rely only on

Brunker’s failure to service customers as the reason it

fired him, other discipline that Brunker and his coworkers received was irrelevant. It agreed, however, to 1
No. 07-3183 5

(...continued) 1

Cir. 2002) (same); O’Neal v. City of New Albany, 293 F.3d 998,

1006 (7th Cir. 2002) (same); Stalter v. Wal-Mart Stores, Inc., 195

F.3d 285, 291 (7th Cir. 1999) (same).

produce the personnel files of the route managers that

Ramey supervised. 

The magistrate judge denied Brunker’s motion to

compel on the grounds of irrelevancy and overbreadth.

He then sanctioned Brunker in the amount of $4,423 for

making those requests. Later, in response to Brunker’s

motion for reconsideration, the magistrate judge ordered

Schwan’s to produce records in the personnel file of one

of Brunker’s former supervisors who had participated in

the termination, but refused to order production of any

other requested materials.

Schwan’s next moved for summary judgment, and

Brunker responded that Schwan’s was precluded from

making arguments about facts on which it had refused

discovery. Specifically, he argued that Schwan’s had

refused to produce personnel files relating to employee

discipline, but then Schwan’s discussed all the disciplinary action against Brunker (beyond his alleged

failure to service customers). Schwan’s also relied on the

personnel files of Dwyer and Devereaux after refusing to

produce those files. Brunker moved for the district court

to strike those arguments—as the magistrate judge suggested he do if Schwan’s used these materials—and

presented what evidence was available to him to argue

that Schwan’s had not disciplined other employees for
6 No. 07-3183

similar misconduct. But the court denied the motion to

strike as moot, reasoning that a jury could not find

Brunker disabled because he was not substantially

limited in a major life activity but rather was only “intermittently or temporarily impaired.” It therefore granted

Schwan’s motion for summary judgment.

II.

A. Summary Judgment

Brunker contends that he presented sufficient evidence

to demonstrate that he is substantially limited in a major

life activity. We review de novo a district court’s grant

of summary judgment, viewing the evidence in the

light most favorable to the nonmoving party. Healy v. City

of Chicago, 450 F.3d 732, 738 (7th Cir. 2006). To survive

summary judgment on his reasonable-accommodation

claim, Brunker must offer evidence that he is a qualified

individual with a disability; that Schwan’s was aware of

his disability; and that Schwan’s failed to reasonably

accommodate the disability. See Mobley v. Allstate Ins. Co.,

531 F.3d 539, 545 (7th Cir. 2008). For his disparate-treatment claim, he must offer evidence that he suffered an

adverse employment action; and that his disability was

a determining factor behind the adverse action. Germano

v. Int’l Profit Ass’n, Inc., 544 F.3d 798, 806 (7th Cir.

2008). Thus, both claims require that Brunker be “disabled.” 

We begin our review by examining whether Brunker

has provided sufficient evidence to create an genuine

issue on whether he is disabled. Brunker is “disabled”
No. 07-3183 7

under the ADA if he has an impairment that substantially

limits a major life activity or if he is “regarded as” such.

See 42 U.S.C. § 12102; Bodenstab v. County of Cook, 569

F.3d 651, 656 (7th Cir. 2009). An impairment is a

disability only when its impact is permanent or long term,

29 C.F.R. § 1630.2(j)(2)(iii); Kampmier v. Emeritus Corp., 472

F.3d 930, 937 (7th Cir. 2007). Examples of “intermittent”

impairments, which are not disabilities, include a broken

leg, appendicitis, or isolated bouts of depression. Ogborn

v. United Food & Commercial Workers Union, Local No. 881,

305 F.3d 763, 767 (7th Cir. 2002) (collecting cases). Although Brunker suffers from multiple sclerosis, that fact

alone does not prove that he is disabled under the ADA.

Rather, we must consider the specific facts of Brunker’s

case. See Burnett v. LFW Inc., 472 F.3d 471, 483 (7th Cir.

2006). 

Even when viewed in the light most favorable to

Brunker, his impairments are not sufficient to show that he

is disabled. In May 2003 his physician allowed him to

return to work without any restriction at all. Once he

returned, he drove the same route by himself and completed it just as quickly as he had in the past. In addition,

during Brunker’s stay at the Mayo Clinic, the doctor

noted that his dizziness episodes, previously a daily

occurrence, were occurring less frequently. Brunker

also told the doctor that his writing difficulty was “variable” and his speech slurred “at times when he is

tired.” Accordingly, we agree with the district court’s

conclusion that the evidence in this record shows only

“intermittent” difficulties rather than a substantial limitation on a major life activity.
8 No. 07-3183

But Brunker’s evidence was sufficient to show that

Schwan’s regarded Brunker as disabled. Under a “regarded

as” theory, the plaintiff must demonstrate either that

(1) the employer mistakenly believes that the employee

has an impairment that substantially limits a major life

activity, or (2) the employer mistakenly believes that an

existing impairment, which is not actually limiting, does

substantially limit a major life activity. Nese v. Julian Nordic

Constr. Co., 405 F.3d 638, 641 (7th Cir. 2005). Major life

activities covered by the ADA include “functions such

as caring for [one’s self], performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and

working.” 29 C.F.R. § 1630.2(i); E.E.O.C. v. Lee’s Log

Cabin, Inc., 546 F.3d 438, 442 (7th Cir. 2008). 

The record contains adequate evidence to support a

theory that Schwan’s regarded Brunker as being disabled

in the major life activities of walking, caring for himself,

and speaking. For example, the day before he left for the

Mayo Clinic, Schwan’s issued Brunker multiple “corrective action reports,” including a dress-code violation,

suggesting that Schwan’s did not believe that Brunker

was able to care for himself because of his apparent

condition. Furthermore, Schwan’s disciplined him even

though other employees were not cited for similar violations. As for Schwan’s motive for firing Brunker, Schwan’s

fired Brunker immediately after he returned from treatment, but Schwan’s backdated the termination notice to

before he left for the clinic, evidently hoping to avoid the

impression that his apparent condition influenced

Schwan’s decision to terminate him. These facts are
No. 07-3183 9

sufficient to create a triable question as to whether

Schwan’s regarded Brunker as disabled when it fired him.

Because we find a genuine issue as to whether Schwan’s

regarded Brunker as disabled, we must remand the

disability-discrimination claim for further proceedings.

But we see no triable case that Schwan’s failed to accommodate his impairment. See Mobley, 531 F.3d at 545.

Brunker asserts that Schwan’s could have given him a

light-duty position rather than what it actually provided:

short-term disability leave and, later on, a second driver

to help with his routes. But Schwan’s was not required

to provide Brunker’s “ideal” accommodation, only that

which is reasonable. See Mays v. Principi, 301 F.3d 866, 872

(7th Cir. 2002). Brunker never requested a light-duty

position after his doctor released him to work without

any restrictions. Even if he made the request, Schwan’s

provided options that effectively accommodated his

limitations. See Mobley, 531 F.3d at 546-47. The district court

did not address the accommodation question, but we

may reach it “so long as that ground was adequately

addressed in the district court and the nonmoving party

had an opportunity to contest the issue.” Cardoso v. Robert

Bosch Corp., 427 F.3d 429, 432 (7th Cir. 2005). We therefore

uphold the court’s grant of summary judgment on

Brunker’s reasonable-accommodation claim.

B. Discovery Requests

Brunker first argues that he was entitled to Schwan’s

financial records and the files of employees who requested

light-duty work, because those records may have refuted
10 No. 07-3183

any claim by Schwan’s that an accommodation would be

an undue hardship. See 42 U.S.C. § 12111(10). Although

this information was once relevant, it no longer has any

bearing on the case. Undue hardship is relevant only

to the reasonable-accommodation claim, see 42 U.S.C.

§ 12111(10). As we affirm the grant of summary judgment

on that claim, Brunker was not prejudiced by the denial

of this information. 

Brunker next asserts that the magistrate judge erred in

denying his motion to compel his former supervisor,

Zoltan Szabo, who had accused Brunker of dishonesty,

to explain what dishonest conduct resulted in Szabo’s

own discharge from Schwan’s. Brunker contends that the

information is a specific instance of Szabo’s character

for truthfulness. FED. R. EVID. 608(b). We agree. Under

federal law,“specific instances of the conduct of a

witness, . . . in the discretion of the court, if probative of

truthfulness or untruthfulness, can be inquired into on

cross-examination” concerning the witness’s “character

for truthfulness or untruthfulness.” FED. R. EVID. 608(b);

Price v. Thurmer, 514 F.3d 729, 731 (7th Cir. 2008). Even if,

as Schwan’s argues, Szabo did not participate in

Brunker’s termination, he was a potential witness for

Schwan’s, and Brunker was entitled to the information

to prepare for possible cross-examination. Accordingly,

we reverse the denial of his motion to compel Szabo’s

answer. See, e.g., Young v. James Green Mgmt, Inc., 327

F.3d 616, 626-27 (7th Cir. 2003).

Brunker also asserts that the magistrate judge erred in

denying his motion to compel the production of the
No. 07-3183 11

personnel files of supervisors not involved in his termination and of information about Schwan’s anti-discrimination

training. He argues that this information may reveal a

possible pattern of discrimination and a basis for

punitive damages.

Magistrate judges and district courts have broad discretion to limit a request for the discovery of personnel files,

in order to prevent the dissemination of personal or

confidential information about employees. Balderston v.

Fairbanks Morse Engine Div. of Coltec Indus., 328 F.3d 309,

320 (7th Cir. 2003). The court should consider “the totality

of the circumstances, weighing the value of the material

sought against the burden of providing it,” and taking

into account society’s interest in furthering “the truthseeking function” in the particular case before the court.

Patterson v. Avery Dennison Corp., 281 F.3d 676, 681 (7th Cir.

2002) (citation omitted). Here, the magistrate judge properly found irrelevant the discovery requests regarding

discrimination from supervisors who were not involved

with Brunker’s termination. See Little v. Ill. Dep’t of

Revenue, 369 F.3d 1007, 1012 (7th Cir. 2004) (holding that

evidence of discipline by a supervisor not involved in the

adverse employment decision “sheds no light” on plaintiff’s discrimination claim). The information Brunker

requested about the company’s anti-discrimination training, however, was relevant to the question of punitive

damages. See Lampley v. Onyx Acceptance Corp., 340 F.3d

478, 482 (7th Cir. 2003). Thus, discovery on that point

should have been allowed on this issue. 

Brunker also contests the magistrate judge’s denial of his

motion to compel the production of the personnel files of
12 No. 07-3183

route managers overseen by other supervisors. He cites

Humphries v. CBOCS West, Inc., 474 F.3d 387, 404-05 (7th

Cir. 2007), aff’d, 128 S.Ct. 1951 (2008), for the proposition

that the magistrate judge could have more flexibly

applied the criteria that defines which other employees

are similarly situated. But we see no abuse in the magistrate judge’s examination of the factors for similarly

situated employees: factors such as whether the employees had the same supervisor, were subject to the

same standards, had the same job description, or had

comparable experience, education, and other qualifications. See Warren v. Solo Cup Co., 516 F.3d 627, 630-31 (7th

Cir. 2008). Even in Humphries, the “similarly situated”

employees had the same duties and the same supervisor.

474 F.3d at 406. The magistrate judge appropriately

considered these established factors.

C. Sanctions

Brunker also contests the sanction of fees that the

magistrate judge awarded to Schwan’s because of

Brunker’s motions to compel. We vacate a magistrate

judge’s choice of sanctions only when no reasonable

person would agree that the sanctions were appropriate,

see Maynard v. Nygren, 372 F.3d 890, 893 (7th Cir. 2004). We

must vacate them in this instance because the magistrate

judge unreasonably imposed them in response to

Brunker’s discovery requests. First, we have already ruled

that the magistrate judge improperly denied part of the

requested discovery (regarding Szabo’s dishonesty).

Second, after Brunker asked for reconsideration, the
No. 07-3183 13

magistrate judge himself allowed discovery of the personnel file of the former supervisor involved in the termination. Thus, those requests were not unjustified, and

sanctions would be inappropriate. See FED. R. CIV. P.

37(a)(5)(B). In addition, Brunker’s request for information on whether Schwan’s disciplined other employees

who failed to follow its dress code or to keep accurate

route books was justified because, despite Schwan’s

promise that in its motion for summary judgment it

would not rely on Brunker’s discipline for these offenses,

it did so anyway. Schwan’s responds that it used the

information in its summary judgment motion only to

prove that Brunker was not performing his job satisfactorily. See Squibb v. Mem’l Med. Ctr, 497 F.3d 775, 788 (7th Cir.

2007). But that explanation concedes that the information was relevant to Brunker’s disparate-treatment claim

because it relates to the even-handedness of the company’s

expectations. 

Indeed, Schwan’s went further than merely raising an

issue that it had previously argued was irrelevant. It

faulted Brunker for failing to identify any route manager

who had “similar performance issues” and was treated

more favorably. And Schwan’s also discussed the route

manager (Barry Dwyer) who was terminated for failing

to service customers, despite Schwan’s successful opposition to Brunker’s request for his personnel file. Similarly,

Schwan’s denied the relevancy of the personnel file of

another former employee, Mike Devereaux, but then

used parts of that file in the summary judgment reply.

Through its actions, Schwan’s concedes that the bulk of

Brunker’s requests were substantially justified. We therefore vacate the award of sanctions.
14 No. 07-3183

III.

Accordingly, we AFFIRM in part, VACATE and REVERSE

in part, and REMAND for proceedings consistent with this

opinion. Brunker should be allowed additional discovery

as we have outlined above. Circuit Rule 36 shall apply on

remand.

10-22-09