In the

United States Court of Appeals

For the Seventh Circuit

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No. 04-2576

LOUIS V. NESE,

Plaintiff-Appellant,

v.

JULIAN NORDIC CONSTRUCTION

COMPANY and ADMINISTAFF,

Defendants-Appellees.

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Appeal from the United States District Court for

the Northern District of Illinois, Eastern Division.

No. 02 C 5839—John W. Darrah, Judge.

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ARGUED FEBRUARY 8, 2005—DECIDED APRIL 27, 2005

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Before RIPPLE, EVANS, and WILLIAMS, Circuit Judges.

EVANS, Circuit Judge. Louis Nese claims that his employer 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-
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 networking group called the Lodge. Only one construction contractor 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 reduced to $18.00 per hour. The controversy between the parties arises at this point. The wage rate was changed either

because Nese’s work pace was not up to the standard of the
No. 04-2576 3

other carpenters or because other workers were making less

and the disparity was causing a problem. There is a controversy 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.
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 manner 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 within the meaning of the ADA. His claim is that Nordic perceived 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 because 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 terminated 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
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 employer 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 nondiscriminatory 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 pretextual. 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 “concocted” 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,
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 employer’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 substantially 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 sufficient evidence to support a conclusion by a rational trier

of fact that he was disabled or regarded as disabled within
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 pretextually 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 intended 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.
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 standards 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 substantial 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
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 discrimination 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

AFFIRMED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—4-27-05
10 No. 04-2576