In the

United States Court of Appeals

For the Seventh Circuit

No. 07-3914

MICHAEL GERMANO,

Plaintiff-Appellant,

v.

INTERNATIONAL PROFIT ASSOCIATION, INC.,

INTEGRATED BUSINESS ANALYSIS, INC., and

INTERNATIONAL TAX ADVISORS, INC.,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 06 C 5638—George W. Lindberg, Judge.

ARGUED JUNE 4, 2008—DECIDED SEPTEMBER 12, 2008

Before BAUER, WOOD, and WILLIAMS, Circuit Judges.

WOOD, Circuit Judge. 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
2 No. 07-3914

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.

I

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 unim-
No. 07-3914 3

paired 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 http://clerccenter.gallaudet.edu/pRODUCTS/

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 partyopponent, which are nonhearsay under FED. R. EVID.
4 No. 07-3914

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.

II

A

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 sum-
No. 07-3914 5

mary 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 court—indeed, it was

ITA that was the first to raise it, in its reply brief on

summary judgment.
6 No. 07-3914

B

No court of appeals has yet addressed the admissibility

of a communications assistant’s transmitted statements in

a TRS conversation. We find, and the parties appear to

agree, that the best guidance comes from cases dealing

with foreign language interpreters.

Almost a century ago, in Lee v. United States, 198 F. 596,

601 (7th Cir. 1912), this court upheld the admission of Mr.

Poy’s statements, as reported by the immigration inspector

who interviewed him, despite the fact that Poy was

speaking through a Chinese interpreter and the interpreter

did not testify about the contents of the interview. We

noted that

the law is well settled in favor of admissibility without

the necessity of even calling the interpreter. When a

conversation taken place between a person whose

declaration is admissible in evidence and another, and

they call in or assent to the use of an interpreter in

order to enable them to speak with each other, each

one adopts a mode of inter-communication in which

they necessarily assume that the interpreter is trustworthy, and which makes his language presumptively

their own.

Id. at 601. Although the interpreter, who did not testify

about the substance of the statements, did aver that he

translated correctly, this fact was not central to the reasoning in Lee. To the contrary, we explicitly noted that

there is no need for the interpreter to testify at all. To

reinforce the point, we excerpted the entire (admittedly

brief) opinion in Commonwealth v. Vose, 32 N.E. 355 (Mass.
No. 07-3914 7

1892), in which the translated statements were admitted

against the defendant in a criminal trial, where the French

translator did not testify at all and was not a professional

interpreter. The Supreme Judicial Court of Massachusetts

observed that, in a conversation where parties must

communicate through an interpreter,

[e]ach acts upon the theory that the interpretation is

correct. Each impliedly agrees that his language

may be received through the interpreter. If nothing

appears to show that their respective relations to the

interpreter differ, they may be said to constitute

him their joint agent to do for both that in which

they have a joint interest. They wish to communicate

with each other, they choose a mode of communication, they enter into conversation, and the words of

the interpreter, which are their necessary medium of

communication, are adopted by both, and made a

part of their conversation as much as those which fall

from their own lips. They cannot complain if the

language of the interpreter is taken as their own by

any one who is interested in the conversation. Interpretation under such circumstances is prima facie to

be deemed correct. . . . The fact that a conversation

was had through an interpreter affects the weight, but

not the competency, of the evidence.

Id. at 355.

The only qualification that Vose suggested was that the

presumption of correctness of the translation may be

overcome by evidence that the interpreter had a special

relationship with one of the parties that would indicate
8 No. 07-3914

a motive to translate falsely. In that situation, the interpreter cannot fairly be assumed to be the “joint agent” of

the parties. See id.

This is consistent with the position taken by our sister

circuits. Some circuits presume the admissibility of translated statements that are otherwise admissible unless

there is a showing of unreliability or a motive to mislead.

See United States v. Da Silva, 725 F.2d 828, 832 (2d Cir.

1983); United States v. Beltran, 761 F.2d 1, 9 (1st Cir. 1985);

United States v. Alvarez, 755 F.2d 830, 859-60 (11th Cir.

1985). Other circuits employ a four-factor test to check for

likely bias or unreliability on a case-by-case basis. See

United States v. Nazemian, 948 F.2d 522, 527 (9th Cir. 1991);

United States v. Martinez-Gaytan, 213 F.3d 890, 892 (5th Cir.

2000). Such courts consider: “[1] which party supplied

the interpreter, [2] whether the interpreter had any

motive to mislead or distort, [3] the interpreter’s qualifications and language skill, and [4] whether actions taken

subsequent to the conversation were consistent with the

statements as translated.” Nazemian, 948 F.3d at 527

(enumeration added).

In Germano’s case, the CA served as “no more than a

language conduit” between Germano and Sage. See Da

Silva, 725 F.2d at 832 (internal quotation marks omitted).

Indeed, the term “language conduit” is an even better

description of a CA than of a foreign language interpreter.

Unlike an interpreter, a CA does not need to select the

best word to convey a particular meaning (for example,

should the English word “know” be translated in French

as “savoir” or “connaître”?). The CA simply reads out the
No. 07-3914 9

English words from the text she sees, and then types in

the English words from the voice she hears. Voice-recognition computers may some day replace the human CAs

altogether, at which point there will be no technological

difference between telephonic communications among

hearing persons and those involving persons with impaired hearing. Currently, however, we have the human

system. ITA has pointed to no evidence that would undermine the presumption of admissibility of the CA’s transmitted statements, as a closer look at TRS communications shows.

First, Germano did not supply the CA. It was the independent TRS service, which operates under detailed

federal regulations, that automatically connected Germano

to a randomly selected operator to facilitate the TRS

conversation. See 47 C.F.R. § 64.603; http://www.fcc.gov/

cgb/consumerfacts/711.html.

Second, the CA had no motive to mislead or distort. ITA

does not assert that the CA had any prior relationship

with either party (and the chances of this are vanishingly

low), nor that the CA had any motive to transmit statements inaccurately. Federal regulations require the CA

to transmit statements verbatim and in real time, thus

greatly reducing the chance of even unintentional distortion. See 47 C.F.R. § 64.604(a)(1)(vii), (a)(2)(ii). (We are

reminded of the advertisements that a large company

furnishing cellular telephone service has run from time

to time, in which a man says over and over again “can

you hear me now?” Far too many conventional telephone calls are marred by static or broken signals that
10 No. 07-3914

distort the message that reaches the listener. Those flaws

go to the weight of the evidence, not to its admissibility.)

Third, the CA’s qualifications and language skills are

prescribed by federal regulations. CAs must “be sufficiently trained to effectively meet the specialized communications needs of individuals with hearing and speech

disabilities.” 47 C.F.R. § 64.604(a)(1)(i). They “must have

competent skills in typing, grammar, [and] spelling” and

“must possess clear and articulate voice communications.”

47 C.F.R. § 64.604(a)(1)(ii). In addition, “CAs must provide

a typing speed of a minimum of 60 words per minute”

and the regulations require the TRS provider to administer “oral-to-type tests of CA speed.” 47 C.F.R.

§ 64.604(a)(1)(iii). These qualifications, mandated by law,

provide more assurance of reliable transmission than

is often the case with lay foreign language interpreters.

Thus, even if it may be harder for one to say of CAs that

the parties implicitly agreed to use them as an intermediary, the strong assurances of reliability that the regulations

provide for the CAs support our treating them as solely a

“language conduit.”

The Equal Employment Opportunity Commission, in

its amicus curiae brief supporting Germano, stresses the

fact that the governing regulations explicitly prohibit a

CA “from intentionally altering a relayed conversation,”

and the regulations require that operators “relay all

conversations verbatim unless the relay user specifically

requests summarization.” 47 C.F.R. § 64.604(a)(2)(ii).

The Commission also notes that it would have been

impossible for Germano to have acquired any record of
No. 07-3914 11

his conversation with Sage (even assuming he could

identify which of many CAs assisted him on that day),

because CAs are prohibited from “[k]eeping records of the

content of any conversation beyond the duration of the

call.” 47 C.F.R. § 64.604(a)(2)(i). Regulations also forbid

CAs from “disclosing the content of any relayed conversation,” except as required by section 705 of the Communications Act, which authorizes the divulging of

conversations only pursuant to subpoena or “on demand

of other lawful authority.” 47 U.S.C. § 605(a)(5)-(6); 47

C.F.R. § 64.604(a)(2)(i). It is not at all certain that the

statutory exception encompasses discovery in civil litigation, and even if it did, it would be close to impossible

for a CA to recall a single conversation from several

years ago purely from memory.

Finally, it is telling that the actions ITA took after the

conversation were consistent with the transmitted statements. Six days after the TRS conversation, Sage emailed

Germano to notify him that ITA was not interested in pursuing employment for him. Germano inquired whether

the withdrawal of the invitation to interview was related

to his deafness. Sage did not respond with surprise at the

premise of the question (that an interview was in fact

offered), nor did he clarify any alleged misunderstanding.

Indeed, he never refuted in any way Germano’s assertion that Sage offered Germano an interview during the

June 15 TRS conversation. The only action “inconsistent”

with the interview invitation was ITA’s failure eventually

to interview him, and that event can be explained plausibly

as the result of discrimination on the part of other

decisionmakers at ITA, who learned of Germano’s disability and only then withdrew the invitation.
12 No. 07-3914

Naturally, a finder of fact would not be compelled to

find discrimination once ITA submits its evidence of the

TRS conversation and the basis for its hiring decision. The

reliability analysis of the CA’s transmitted statements

is simply a threshold inquiry to establish its admissibility.

As we implied a moment ago, ITA will be free to argue

that the trier of fact should not attach great weight to

those transmitted statements. For now, we hold only that

a certified communications assistant, transmitting statements through a telecommunications relay service, does

not add a layer of hearsay, unless the opponent of that

evidence can produce specific evidence of unreliability

or a motive to mislead.

There are strong policy reasons for admitting testimony

about the contents of TRS conversations. Congress mandated the creation of a telecommunications system for

persons with hearing and speech disabilities that is

“functionally equivalent” to those used by nondisabled

persons. 47 U.S.C. § 225. Denying the admissibility of

statements made during a TRS conversation would strip

those with hearing disabilities of a vital source of evidence

available to hearing persons. Deaf persons could not

conduct important day-to-day affairs over the phone,

such as calling the bank or the doctor, with the same

ability to rely on the statements made to them by the

other party that is enjoyed by hearing persons. Such a

result is at odds with Congress’s intent to make disabled persons full and equal participants in society. See 42

U.S.C. § 12101(a)(8).

Thus, we find no sound basis in law, fact, or policy

on which to distinguish the role of communications
No. 07-3914 13

assistants from that of reliable, unbiased foreign

language interpreters. Sage’s statements, which were

conveyed to Germano not solely through the movement of

electrons but also through the CA’s intermediation, are

therefore not hearsay, and the district court erred in

excluding it on this basis.

III

With Germano’s evidence about his conversation with

Sage properly in the record, we must determine whether

he has submitted enough evidence to survive summary

judgment. Germano saw an online job advertisement,

announcing that ITA was seeking applicants for the

position of tax advisor. The posting noted that the minimum education requirement was a master’s degree and

that two to five years of relevant work experience was

desired, listing examples of relevant areas, including tax,

corporate, finance, estate planning, and business advising.

On June 9, 2005, in response to the posting, Germano

emailed Ron Sage, one of two decisionmakers for ITA with

respect to hiring, his resume and cover letter, which

indicated that he had earned a J.D. from Quinnipiac

University School of Law and an L.L.M. from Georgetown

University Law Center, had participated in a tax clinic

for two semesters, and had worked as a claims processor

for two years. (Sage actually works for International

Profit Association, Inc. (“IPA”), but IPA is a management

consulting company to which ITA delegates some of its

administrative and recruiting tasks, and so IPA is an

agent of ITA.)
14 No. 07-3914

On June 10, Sage forwarded Germano’s resume to Tim

Foster (the other decisionmaker) to see if Foster had an

“interest in this individual.” About five days later, Sage

left a voicemail on Germano’s machine asking Germano

to call him so that they could discuss the position of tax

consultant. Germano returned Sage’s call on June 15;

this is the call we described earlier that was handled

through the TRS and the communications assistant. Given

the way the call was conducted, Sage inferred that

Germano had a hearing impairment.

During the June 15 TRS call, Sage invited Germano to

come to Illinois for an interview and told him that his

travel expenses would be covered by ITA. He also told

Germano that he would contact him again with the

time and place of the interview. Afterwards, Sage told

Foster that he had talked with Germano and that the use

of the TRS “would imply that [Germano is] hard of hearing.” During that same conversation, the decision was

made not to hire Germano.

On June 21, Sage emailed Germano and said, “After

further consideration, ITA has elected to pursue other

candidates whose qualifications better fit the needs of the

client base.” The same day, Germano responded by email,

stating, “I would like to inquire why I was offered an

interview on Friday with your company and now it

is being withdrawn. It seemed to me during our conversation on Friday that my qualifications in fact met the

needs of your clients. Does the opportunity to interview

being revoked pertain to my deafness?” Germano went

on to explain what communications arrangements he
No. 07-3914 15

uses to perform daily work, informed Sage of his ability

to speak and read lips, and assured Sage that the “use of

an interpreter really is miniscule in comparison to my

work productivity.” He provided these details “to ensure

that misperceptions were not the source for the interview

opportunity being withdrawn.” Within thirty minutes,

Sage responded by email, as follows: “Honestly, the

decision makers did discuss the topic of your hearing,

but felt this was an obstacle that was not insurmountable. Simply stated, other candidates [sic] experience better

fit the needs of our clients.”

Germano pursued a complaint against ITA with the

Equal Employment Opportunity Commission (“EEOC”).

Larry Lang, Executive Director of Human Resources for

IPA, told the EEOC that Germano was not hired because

they decided to hire Rick Enriquez, who was more qualified. This story had its holes, however. Enriquez was

offered a job with ITA on June 7 and accepted it on June 9,

almost a week before Germano’s June 15 conversation

with Sage, in which he was invited to interview. ITA hired

tax consultants on a rolling basis; it continued to interview and hire others after withdrawing Germano’s interview offer. The EEOC investigator thought that the evidence presented “substantial credibility challenges to the

Respondent’s version of events and it’s [sic] explanations

for the failure to proceed with Charging Party’s candidacy.” After receiving his right-to-sue letter, Germano

filed suit in district court against the defendants, alleging

discrimination in employment in violation of the ADA.
16 No. 07-3914

IV

To survive summary judgment on an ADA discrimination claim, Germano must raise a triable issue on each

element of the claim. Under the familiar McDonnell

Douglas paradigm, Germano must show (1) that he is

disabled; (2) that he is qualified by education and experience and could perform the essential job functions with

or without reasonable accommodation; (3) that he

suffered an adverse employment action; and (4) that the

circumstances surrounding the adverse action support

the inference that his disability was a determining factor

behind the adverse action. Lawson v. CSX Transp. Inc., 245

F.3d 916 (7th Cir. 2001); see Trujillo v. PacifiCorp, 524 F.3d

1149, 1154 (10th Cir. 2008). (Although this court has

sometimes described the last factor as requiring the

plaintiff to show that discrimination is “more likely

than not,” we have spoken only of an “indication” that

this is so, not a certainty. See Lawson, 245 F.3d at 922. That

is understandable, because if we required a certainty,

then the difference between direct and indirect proof

would be erased. We think it is less confusing to speak, as

the Tenth Circuit does, of evidence supporting an “inference” that discrimination was “a determining factor.” This

evidence might involve, for example, showing that similarly situated people without the same disability were

treated better—a common strategy in indirect proof cases,

though not the only one.)

Defendants do not contest that Germano has satisfied

the first and third elements. Thus, we start by asking

whether Germano has raised a factual question with
No. 07-3914 17

respect to his qualifications and ability to perform the

job with or without reasonable accommodations.

It is beyond dispute that Germano satisfied at least

the education requirements for the job. By submitting

evidence that defendants offered him an interview, for

which they would pay his travel expenses, Germano raises

a triable issue whether he was qualified for the job. ITA

might have concluded that his tax clinic and claims

work were the equivalent of the experience it was

looking for; alternatively, it may have considered work

experience desirable, but not essential. Germano also

points to two Tax Advisors who did not have at least

two years of relevant work experience at the time they

were hired by ITA, and ITA’s admission that it considers

for employment applicants who do not have at least two

years of relevant work experience. A rational jury could

infer that the amount of relevant work experience was

simply a desirable criterion, but not a requirement for

the job, and thus that Germano was qualified for the job.

Germano himself was competent to testify about the

reasonable accommodations that would allow him to

perform the essential functions of the job. In this appeal,

the defendants dispute Germano’s lip reading skills,

the amount of time for which he would need an interpreter, and his estimates of the hourly rate charged by

an interpreter. These issues are material, but they are

contested, and they can be resolved only by the trier of fact.

The remaining element to be examined is the fourth one:

whether circumstances surrounding the adverse action

support the inference that Germano’s disability was a
18 No. 07-3914

determining factor for ITA’s decision abruptly to terminate its interest in hiring him.

Germano raises a triable question by pointing to the

suspicious timing of the withdrawal of the interview

invitation (shortly after the defendants learned of his

disability, with no other new information about him)

together with the defendants’ shifting explanations of

why they did not hire or interview Germano. During the

EEOC investigation, IPA claimed that Germano was not

hired because it chose a superior candidate, Enriquez, for

the position. This explanation later proved to be false,

because Enriquez accepted his position before ITA

invited Germano to interview. Later on, the defendants

asserted that they did not hire Germano because he was

altogether unqualified for the position, as opposed to

merely being less qualified than another specific candidate. They take this position in the face of the contemporaneous evidence that they deemed Germano qualified

enough to offer him an interview at their own expense.

Under the burden-shifting framework of McDonnell

Douglas, once the plaintiff makes out a prima facie case, the

defense may offer a legitimate, nondiscriminatory reason

for having taken the adverse employment action against

the plaintiff. The burden then falls on the plaintiff to

show that the proffered reason is merely a pretext, meaning that the employer itself did not believe its own story.

ITA has offered a legitimate, nondiscriminatory reason

for not pursuing Germano further: it wanted better candidates. Germano, however, has pointed to evidence that

would permit a trier of fact to find ITA’s reason pretextual.
No. 07-3914 19

For the most part, it is the same evidence we have just

reviewed in connection with the fourth element of the

prima facie case, including the circumstances of the interview offer and ITA’s inconsistent explanations for its

actions.

* * *

The judgment of the district court is REVERSED, and the

case is REMANDED for further proceedings consistent

with this opinion. On remand, Circuit Rule 36 shall apply.

9-12-08