Case Information
*1 Before E ASTERBROOK , Chief Judge , and F LAUM and W OOD , Circuit Judges.
W OOD , Circuit Judge.
In May 2007, David Feldman was working as a tractor operator on the day shift at a manufacturing facility then owned by Olin Corpora- tion. Because of Feldman’s medical problems with fibromyalgia and sleep apnea, his doctors had advised him to work regular day positions, without rotation and overtime. This was possible until Olin realigned its work force, causing Feldman’s position to change from one limited to daytime work to one that required rotation among day, evening, and night shifts. Although he tried to work under the new regime for a few weeks, Feldman found that his fatigue and pain made it impos- sible for him to do so. When he presented Olin with a mеdical restriction from the shift rotation, Olin promptly laid him off. It did not place him in a different position, because (it asserted) no other posi- tions were available that did not require overtime or flex- time. Over the course of the next several months, Olin continued to refuse to place Feldman in another spot, maintaining that either flex-time or overtime were essential functions for everything that was available. Finally, a straight-day position came open in Decem- ber 2007; Feldman successfully bid for it. Since then, Feldman has continued working at the plant.
Feldman brought this suit alleging that the defen- dants’ failure to offer а reasonable accommodation in the form of a straight-day shift, without overtime, violated the Americans with Disabilities Act (ADA), 42 U.S.C. § 12111 et seq . He also argued that once he returned to work, Olin retaliated against him for having filed discrimination complaints with various state and federal agencies. Feldman also brought claims under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq ., and state law retaliation claims, but those are not at issue on this appeal.
The district court granted summary judgment in the defendants’ favor, dismissing all of Feldman’s claims. We conclude, however, that this was error. Feldman can prevail if the trier of fact resolves two genuinely disputed points in his favor: first, whether he is “dis- abled” under the ADA, and second, whether he is “quali- fied” to work in certain positions given his overtime restriction. Feldman’s retaliation claims, in contrast, were properly dismissed for lack of evidence that the adverse employment actions were caused by any protected conduct. Finally, both parties on appeal have discussed sanctions. As we explain below, Feldman’s attorneys failed to file a timely notice of appeal from the order awarding sanctions against them, and so we lack jurisdiction to consider it. Feldman’s appeal from the сourt’s denial of his own motion for sanctions is, however, properly before us, and we conclude that the district court rejected it too hastily. We thus remand that issue to the district court for further con- sideration.
I
The account of the facts that follows presents them in the light most favorable to Feldman, who was the party opposing summary judgment. See, e.g., Lagestee- Mulder, Inc. v. Consolidated Ins. Co. , 682 F.3d 1054, 1056 (7th Cir. 2012). In general, our review is de novo.
Since 1974 Feldman has worked at the metal manu- facturing facility in East Alton, Illinois, in a variety of production and manual labor positions. Until Novem- ber 2007, this was the brass division of Olin. In Novem- ber 2007, defendant Global Brass & Cоpper, Inc., a Dela- ware corporation, acquired that division. It now operates the same facility under the name Olin Brass, but the true entity is GBC Metals, LLC, whose sole member is Global Brass. Unless the context requires otherwise, as it does when we come to the question of sanctions, we refer to both defendants as Olin.
For many years Feldman typically worked the swing shift (or “flex-time”), which required him to work day, afternoon, and midnight rotating shifts along with some overtime. Things changed when, in 2002, Feldman was diagnosed with fibromyalgia. According to Feldman’s rheumatologist, Dr. Tanphaichitr, as well as his general practitioner, Dr. Green, Feldman experiences significant pain, sporadic sleeping patterns, insomnia, and extreme fatigue as a result of the fibromyalgia. Working the swing shift was exacerbating these symptoms, and so toward the end of 2004, Dr. Green recommended that Feldman switch to a “straight-time” schedule. An em- ployee on a straight-time shift is assigned a daytime shift of eight hours, without rotation to afternoons and nights. Dr. Green recommended this schedule for Feldman because it would allow him to have a more stable sleep cycle, which in turn would help to reduce pain and fatigue. Following his doctor’s advice, Feldman bid on and obtained a straight-day tractor-operator posi- tion in January 2005. In February 2005, Feldman sub- mitted a no-overtime medical restriction. Olin agreed to honor this restriction after consulting with Dr. Green. Feldman has also since been diagnosed with obstructive sleep apnea. During a sleep study conducted in 2007, Feldman’s sleep efficiency (that is, the amount of time he actually slept) was rated as “very poor at 48%.”
On May 7, 2007, Olin implemented a “job curtailment,” which involved realigning or reducing several positions. As part of that process, it changed one tractor-operator position from straight days to a rotating shift. Because Feldman was the lеast senior of the straight-day tractor operators, he was the one moved into the new job. Feldman tried to follow the rotating schedule for two weeks, but he was unable to do so because of his physical condition. On May 21, 2007, Feldman submitted a new doctor’s note restricting him from flex-time shifts; relying on that, he asked to be assigned to a straight-day shift. Olin told Feldman that there were no available straight-day positions, and Feldman was laid off that day.
On June 11, 2007, Feldman filed a Charge of Discrim- ination with the Illinois Department of Human Rights, alleging disability and age discrimination. On June 20, 2007, Olin held a reasonable accommodation meeting. It sent a Positiоn Statement to the Illinois Department of Human Rights in response to the discrimination charge, stating that it had considered Feldman for a variety of positions but could not place him given his restrictions. Olin also sent Feldman’s doctor, Dr. Green, questions about his medical restrictions, and Dr. Green responded that Feldman’s “fibromyalgia and obstructive sleep apnea cause significant symptoms in terms of physical pain and excessive sedation,” and that a day shift would allow Feldman to “have a reduc- tion in pain and reduction in daytime somnolence so that he would be able to perform the functions of his job.” Olin did not аt that time offer Feldman alternative em- ployment, and so Feldman remained on layoff status.
For the most part, Feldman did not work during the remainder of 2007, although he submitted several unsuc- cessful bids for open positions. In December 2007, how- ever, he bid on and was awarded a position working straight days as a tractor operator.
Feldman brought this suit against Olin Corporation, Global Brass, and Olin Brass, on March 4, 2009, alleging that the defendants had committed age and disability discrimination in violation of the ADEA and ADA by failing to accommodate his disability between May and December of 2007. He also included a claim for retaliation. The district court granted summary judg- ment to the defendants on all claims; Feldman has ap- pealed only from the adverse rulings on the ADA and retaliation claims.
II
To succeed on a claim under the ADA, a plaintiff must show: “1) that she is disabled; 2) that she is otherwise qualified to perform the essential functions of the job with or without reasonable accommodation; and 3) that the employer took an adverse job action against her because of her disability or failed to make a reasonable accommodation.” Stevens v. Illinois Dep’t of Transp ., 210 F.3d 732, 736 (7th Cir. 2000). Feldman argues that Olin failed to make a reasonable accommodation when it did 7 not offer him an available position after he alerted the company to his flex-time and overtime restrictions.
The district court concluded, after looking at the sum- mary judgment record, that Feldman could not show that he was disabled; it therefore saw no need to address the other ADA requirements. In our view, how- ever, when the record is viewed in the light most favorable to Feldman, there is a dispute of material fact on that threshold issue. In addition, we conclude that a dispute of material fact exists with respect to Feldman’s qualification to perform available positions. There is no dispute that Olin failed to offer Fеldman those positions as a reasonable accommodation, and so we take that as established.
A
An individual is “disabled” under the ADA if he (1) has an actual disability that substantially limits one or more major life activities, (2) has a “record of” such an impairment, or (3) his employer regards him as having such an impairment. Powers v. USF Holland, Inc ., 667 F.3d 815, 819 (7th Cir. 2011) (citing 42 U.S.C. § 12102(2) (2006)). Feldman argues that he is disabled because [1]
of substantial limitations in his ability to sleep, a major *8 8
life activity. See Scheerer v. Potter , 443 F.3d 918, 919 (7th Cir. 2006); E.E.O.C. v. Chevron Phillips Chem. Co. , 570 F.3d 606, 616 (5th Cir. 2009) (“Every circuit that has addressed the issue has concluded that sleeping is a major life activity.”). In the alternative, Feldman asserts that a jury could find that Olin regarded him as being substantially limited in his ability to work, also a major life activity, see Powers , 667 F.3d at 817. Feldman alleges that the latter argument is supported by the fact that Olin had a “100% healed policy.” We address each of these in turn.
A plaintiff claiming disability on the basis of sleep
problems must show that his “limitations on sleeping . . .
are sufficiently ‘prolonged, severe and long-term’ to
warrant classification as a disability.”
Squibb v. Memorial
Med. Ctr
.,
Olin relies on these cases to argue that Feldman’s claim, too, should fail. But Feldman’s case does not suffer from the same defect. He presented significant evidence of severe sleep problems resulting from sleep apnea and fibromyalgia, including medical evidence from his treating physicians and the results of a sleep study. He did not rely solely on his own say-so, although his deposition testimony and the records he kept from 2005 to 2007 documenting his sleeping difficulties bol- stered the medical evidence.
The district court nonetheless granted summary judg- ment for Olin beсause it thought that some facts in the record cast doubt on the severity of Feldman’s sleeping limitations. It noted that (1) Feldman’s sleep quality is better if he uses a CPAP machine (a mask that delivers continuous positive airway pressure), (2) Feldman’s doctor said that he could work 40 hours a week of straight-time shifts, and (3) Feldman is able to drive and engage in some recreational activities. Perhaps these pieces of evidence do cut in Olin’s favor; they suggest that Feldman’s sleeping problems might not be a “disabil- ity” for ADA purposes because they are easily remedied or do not significantly affect his daytime functions. The questiоn, however, is not whether there was some evidence in the record favoring Olin; it is whether there was anything on the other side of the scale.
The answer to the latter question is yes. First, it is not clear that the CPAP machine actually helps Feldman, even if it theoretically ought to. Feldman testified that it was difficult to wear the mask at night and thus the machine did not work as effectively as possible. A jury could conclude that even with a CPAP machine, Feldman would have significant sleeping problems. Second, although Feldman’s doctor advised he could *10 10
work 40 hours a week, he emphasized that this was only if Feldman was not assigned to work flex-timе. The doctor believed that Feldman’s sleeping problems were substantial enough to make a change in schedule neces- sary. The fact that Feldman could have worked in some capacity during the day cannot be enough to over- come Feldman’s other medical evidence of sleeping problems. To hold otherwise would be akin to saying “that no one is disabled under the ADA unless the person is unable to work,” which would “render all the provisions in the ADA governing reasonable accom- modations at work entirely empty of meaning.” Taylor v. Phoenixville Sch. Dist ., 184 F.3d 296, 311 (3d Cir. 1999). Finally, even though some evidence indicates that Feldman is able to do things like go to movies and attend church, other evidence shows that Feldman has significantly reduced his social activities because of his pain and sleeping difficulties.
On this record, we cannot conclude as a matter of law that Feldman is not disabled. The evidence supporting Feldman’s claim is sufficient to create a genu- ine dispute of material fact that he was disabled by a substantial, severe, and long-term limitation on his ability to sleep.
Feldman’s alternative argument that he is disabled
because Olin regarded him as substantially limited in
his ability to work is another matter. In order for
Feldman to satisfy the “regarded as” theory of ADA
disability, there must be evidence that Olin believed
Feldman was “limited in [his] ability to perform not merely
one particular job but a class or broad range of jobs.”
Hanson v. Caterpillar, Inc.
, ___ F.3d ___,
Even taking into account Olin’s alleged “100% healed
policy,” our analysis does not change. As we explained
in
Powers
, “[w]ithout some evidence that the employer
actually viewed the . . . individual as unable to work
for other employers in a class of jobs or a broad
range of jobs, a 100% healed policy merely shows that
this
employer’s preference is to hire someone without
any impairments. Under the ADA that would not be a
violation unless the individual is actually disabled.”
B
Feldman has shown that a dispute of fact exists on the question whether he is disabled, but to survive sum- mary judgment he must also show that he is a “qualified individual,” i.e. , that he is “an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8). Olin argues that Feldman cannot meet this requirement because overtime and rotating shifts — exactly the job demands from which Feldman needed to be excused — are “essential functions” of the job.
We generally defer to an employer’s determination of
the essential functions of a job. See
Lloyd v. Swifty Transp.,
Inc
.,
Feldman points to several straight-time positions that were open during his seven month lay-off that he believes Olin should have reassigned him to, including two straight-time shifts in the bag house and four adjustor positions. Olin retorts that all of these required overtime as an essential function of the job. Once again, however, we cannot resolve this in Olin’s favor at the summary judgment stage, because the evidence on each of these points is mixed. Notably, Olin сoncedes that overtime is not listed as a required job feature in the written job descriptions. Olin counters that it should not have to list a requirement that is required by all of its jobs, but Feldman points to evidence of some jobs that do specifically list mandatory overtime as a requirement in their written descriptions. Feldman has also furnished data indicating that overtime is rarely worked by bag house operators. On the other hand, Olin argues that the consequences of exempting bag house workers from overtime would be dire, as fires some- times break out that require all essential personnel to work until the fires are put out, evеn if that requires overtime. There is evidence, in short, going both ways, and so we cannot conclude that overtime was an essential function of the bag house or adjustor positions. See D’Angelo , 422 F.3d at 1232-33 (evidence that em- ployees rarely performed a task created a genuine issue of material fact regarding whether the task was essential).
Olin also argued that Feldman could not have obtained the bag house positions because he needed to bid on the vacant positions, and because he was not entitled to bump junior employees currently holding those positions. (These arguments do not appear to apply to the adjustor positions, for which Olin relies solely on the overtime defense.) But Olin has failed to press these points on appeal and they are thus waived. Even if they were not, we do not think the evidence is so clear that these positions were unavailable to Feldman that summary judgment would be appropri- ate. For instance, the evidence suggests that Olin treated Feldman as being on “curtailment,” a status that gave Feldman the right under the applicable collective bargaining agreement to bump junior employees. Even when employment practices genеrally require bidding before being awarded a position, we have held that employers may be required to bypass procedural require- ments like bidding in order to meet their obligations under the ADA of providing reasonable accommodations. See, e.g. , Gile v. United Airlines, Inc. , 213 F.3d 365, 374 (7th Cir. 2000). Feldman’s alleged failure to bid on certain open positions is thus not dispositive.
Olin’s argument that flex-time was an essential func- tion of certain positions (such as the tractor-operator positions) is stronger than its argument with respect to overtime. Flex-time was mentioned in the written job descriptions, and there is no evidence that truck drivers who are in flex-time рositions actually work straight shifts instead. But we need not resolve this one way or the other because we find that Feldman has presented enough evidence to establish a genuine dispute of material fact about his qualification to work available straight-time positions, and Olin did not offer him those positions. This is enough to withstand summary judg- ment on his ADA claim.
III
Feldman also appeals the district court dismissal of his retaliation claim. To prevail on this theory, a plaintiff must show that he engaged in statutorily pro- tected activity (such as filing a charge of discrimination), that he suffered a materially adverse employment actiоn, and that there is a causal link between the two. Chapin v. Fort-Rohr Motors, Inc ., 621 F.3d 673, 677 (7th Cir. 2010). Feldman alleges that he engaged in statutorily protected activity by filing a charge of discrimination with the Illinois Department of Human Rights alleging disability and age discrimination in September 2006 and again in June 2007, and in August 2007 by filing a discrimination charge with the EEOC. He asserts that Olin retaliated against him by refusing to rehire him, by assigning him to physically demanding work upon his return in December 2007, and by suspending him for minor misconduct in May 2008.
We agree with the district court that Feldman cannot
succeed on his retaliation case because there is no
genuine dispute over causation. The evidence regarding
Olin’s refusal to rehire Feldman (until December 2007)
suggests that Olin was strictly applying its overtime
and flex-time requirements, not that Olin was retaliating
against Feldman for filing charges of discrimination.
Feldman points to nothing suggesting that Olin’s failure
to put him back to work before December 2007 had any-
thing to do with his charges of discrimination. Although
the evidence does indicate that Feldman was assigned
unpleasant tasks upon his return to work, such as the
coil-miller job, this task was performed by others as
well. There is no evidence that Feldman’s assignment to
the coil-miller job was punitive or involved anything
more than what the job typically required. See
Nagle v.
Village of Calumet Park
,
IV
Our final task is to address the appeals of various sanctions matters. The night before the district court was to hear oral argument on the summary judgment motions, one of the defendants in this case, Global Brass, filed a motion for sanctions against Feldman pursu- ant to Rule 11. Global Brass argued that Feldman had failed to conduct a proper investigation before filing his complaint against it, had failed to dismiss Global Brass after Global Brass offered evidеnce that it never employed Feldman and never employed more than 10 people (and so was not covered by the ADA), and that Feldman failed to omit Global Brass from his amended complaint. Feldman, in turn, filed a motion for Rule 11 sanctions against Global Brass, on the basis that Global Brass’s motion for sanctions was for the improper purpose of harassing counsel and because Global Brass failed to give him 21 days’ notice of its intent to seek sanctions, as required by Rule 11(c)(2). See Matrix IV, Inc. v. American Nat’l Bank & Trust Co. of Chicago , 649 F.3d 539 (7th Cir. 2011) (“This 21-day window gives the offending party a ‘safe harbor’ within which to with- draw or correct the offending pleading.”).
On November 29, 2010, the district court granted
Global Brass’s motion for sanctions; it relied on both
Rule 11 and its inherent powers. It reserved judgment
on the amount of attorney’s fees it would impose. The
court denied Feldman’s motion for sanctions. Several
months later, on February 22, 2011, the court awarded
attorney’s fees of $1,475, to Global Brass to be paid by
Feldman’s attorneys. Feldman’s attorneys seek to have
those fees reversed, and Feldman argues that his own
sanctions motion was improperly rejected. We review
the grant or denial of a motion for sanctions for abuse
of discretion.
Bilharz v. First Interstate Bank of Wisconsin
,
1
We are sympathetic to Feldman’s contention that the district court abused its discretion by imposing sanctions. Global Brass admits that it never gave Feldman advance notice as required under Rule 11(c)(1). Notice plays a central part in the Rule 11 process, as the 1993 Committee Note emphasizes. Subdivisions (b) and (c), ¶ 13. That alone should have led to the dismissal of the motion. And it is our impression that Global Brass’s argument on the merits for sanctions was flimsy. Sanctions would have been appropriate only if Feldman had no legal basis or evidentiary support for keeping Global Brass in the case as a defendant, or was doing so for an improper purpose. But Feldman’s lawyers hаd good reason to think that Global Brass was a proper defendant. There was evidence in the record including pay stub records, job postings, and a letter from defen- dant’s counsel identifying Global Brass as Feldman’s employer, all suggesting that Global Brass might have been the entity employing Feldman. The confusion about the precise relationship among the three corporate defendants persists in this court, exacerbated by the defendants’ failure to follow another procedural rule — this time, Federal Rule of Appellate Procedure 26.1, which requires parties to submit a Corporate Disclosure State- ment. The defendants failed to comply with that rule, and their carelessness has needlessly complicated both our review for conflicts and our substantive evaluation of this part of the case.
As it happens, however, we have no jurisdiction to
address this issue, because Feldman’s attorney failed to
file a timely notice of appeal from the district court’s
final decision on sanctions. Feldman filed a notice of
appeal from the November 29, 2010, grant of the motion
for sanctions, but that order was nonfinal, because it
explicitly reserved the calculation of fees. When thе
fees were ultimately imposed by the court’s order of
February 22, 2011, Feldman failed to file a notice of
appeal. This defect was brought to Feldman’s attention
during the course of briefing in this case. His attorneys
tried to salvage the appeal, raising several arguments
and filing a late notice on August 3, 2011. We dismissed
that appeal as untimely. See
Feldman v. Olin Corp.
,
et al.
,
Despite their earlier lack of success, Feldman’s attor-
neys are now asking us to treat the first notice of
appeal filed by Feldman from the November order as
effective on the date in February the fees were imposed.
This is possible, they contend, undеr Federal Rule of
Appellate Procedure 4(a)(2). But they are mistaken.
FRAP 4(a)(2) permits courts to treat a notice of appeal
filed after a court announces a decision or order, but
does not formally enter final judgment, as filed on the
date of the entry of the judgment or order. But this rule
applies “only when a district court announces a deci-
sion that would be appealable if immediately followed
by the entry of judgment.”
FirsTier Mortgage Co. v.
Investors Mortgage Ins. Co.
, 498 U.S. 269, 276 (1991). The
Supreme Court has specifically said that Rule 4(a)(2)
does not “permit[] a notice of appeal from a clearly inter-
locutory decision — such as a discovery ruling or a sanc-
tion order under Rule 11 of the Federal Rules of Civil
Procedure — to serve as a notice of appeal from the
final judgment” because “[a] belief that such a decision
is a final judgment would not be reasonable.”
Id
.; see
also
Carter v. Ashland, Inc
.,
We note that one other jurisdictional defect dooms this appeal. As we explained in our earlier rejection of the attorneys’ late attempt to appeal the fees, the district court ordered Feldman’s attorneys to pay the fees in its February order, not Feldman, thereby “relieving the plaintiff of the obligation imposed by the previous or- der.” 673 F.3d at 516. Thus, even if we were somehow to find the early notice of appeal to be effective at a later date, any issue Feldman might have had with those fees is now moot. Feldman’s attorneys were the only parties who could aрpeal a fee award imposed against them, but they did not file an appeal from the November order and their attempt to file an appeal from the February order was far too late. We therefore find that we have no jurisdiction to review the award of attorney’s fees to Global Brass. 21
We do, however, have jurisdiction to consider the
district court’s denial of Feldman’s own motion for sanc-
tions against Global Brass, because Feldman filed a
timely notice of appeal from that order. We review a
district court’s denial of a motion for sanctions for
abuse of discretion.
Matrix IV, Inc.
,
The only explanation the district court offered for its rejection of Feldman’s motion for sanctions was that “Mr. Feldman’s claims against Global Brass and Copper were groundless.” We think that goes too far. As noted above, Feldman offered evidence showing that he had a good faith basis to keep Global Brass in the case, given the confusion about Global Brass’s relationship to Feldman and the exact corporate identity of his em- ployer during the relevant time. Cf. Tucker v. Williams , 682 F.3d 654, 662 (7th Cir. 2012) (finding a sanctions award to be an abuse of discretion when there was no evidence the party had acted in bad faith). Global Brass was hardly a model litigant, given the fact that it filed its motion for sanctions on the eve of oral argument and failed to follow the safe-harbor provisions of Rule 11. That alone, we recognize, would probably not warrant sanctions: lawyers file untimely motions all the time, and the normal response from the judge is simply to deny them and move on. But here the judge seems to have accepted Global Brass’s position that Feldman never should have sued it on the merits. That conclusion — if indeed our guess about the district court’s thinking is correct — is much more troublesome, given the evi- dence we mentioned earlier.
“Although our review of a denial of sanctions is
limited, the denial of sanctions with no explanation may
constitute an abuse of discretion.”
Ross v. City of
Waukegan
,
* * *
In summary, we R EVERSE the district court’s grant of summary judgment in Olin’s favor on Feldman’s ADA claim (and thus V ACATE the associated entry of costs of $13,035.20 imposed against the losing party), A FFIRM summary judgment for Olin on Feldman’s retaliation claim, D ISMISS the appeal from the award of sanctions in favor of Global Brass for want of jurisdiction, and R EVERSE the denial of Feldman’s motion for sanctions. The case is R EMANDED for further proceedings con- sistent with this opinion.
8-27-12
Notes
[1] Although this definition changed with the 2009 amend-
ments to the ADA, the amendment was not retroactive and
the parties agree that Feldman’s claim is controlled by the
earlier definition. See
Fredricksen v. United Parcel Serv., Co.
,