In the
United States Court of Appeals
For the Seventh Circuit

No. 99-1209

RODNEY WAYNE SPATH,

Plaintiff-Appellant,

v.

HAYES WHEELS INTERNATIONAL-INDIANA,
INCORPORATED,

Defendant-Appellee.



Appeal from the United States District Court
for the Northern District of Indiana, Fort Wayne Division.
No. 1:98-CV-0045--William C. Lee, Chief Judge.


Argued September 15, 1999--Decided May 1, 2000



      Before CUDAHY, COFFEY, and EASTERBROOK, Circuit
Judges.

      COFFEY, Circuit Judge. From 1987 to 1997, Rodney
Spath was a production worker for the Hayes
Wheels International-Indiana, Incorporated (Hayes
Wheels or employer) facility in Huntington,
Indiana. On March 11, 1997, Hayes Wheels
terminated Spath’s employment because Spath filed
a false worker’s compensation claim. Thereafter,
Spath filed suit against Hayes Wheels in the
Northern District of Indiana, alleging that Hayes
Wheels terminated him, not because he filed a
false worker’s compensation claim, but because of
his epileptic disorder, in violation of the
Americans with Disabilities Act (ADA), 42 U.S.C.
sec.sec. 12101-12213./1 The trial judge
concluded that Spath failed to establish a prima
facie case of disability discrimination and
granted Hayes Wheels’ motion for summary
judgment. We affirm.

I.   BACKGROUND

A.  Spath’s Disabilities
      During his tenure at Hayes Wheels, Spath
suffered at least eight epileptic seizures at his
place of employment, and he concedes that Hayes
Wheels accommodated his epileptic condition for
nine years by transferring him to positions which
involved less contact with machinery and
routinely permitting him to return to work after
receiving a physician’s release. This all
changed, according to Spath, after he had a
seizure while on the job and was conveyed to a
hospital on August 7, 1996. After this seizure,
Spath received a release from the emergency room
physician and attempted to report back to work
the same day. But his employer refused to accept
the emergency room physician’s release and,
insisted upon a release from Spath’s personal
physician, Dr. Matthew. On August 8, 1998, Spath
provided a release from his personal physician,
and again Hayes Wheels refused to accept this
release; on this occasion Hayes Wheels demanded
a release from Spath’s neurologist, Dr.
Stevens./2 After Spath became aware that he
would be unable to obtain an appointment for a
consultation and examination with Dr. Stevens
prior to October 14, 1996, he negotiated with his
employer to permit him to return to work earlier.
On August 18, 1996, Hayes Wheels permitted Spath
to return to work, but refused to allow him to
work any overtime until such time as he presented
a release from his neurologist./3

      Spath also argued, in support of his contention
that his employer no longer wished to accommodate
his disability, that Hayes Wheels restricted his
overtime after a seizure on December 5, 1996,
without any medical opinion stating that it was
necessary. After Spath suffered the seizure on
December 5, 1996, Spath’s supervisor Mike Johnson
restricted Spath from working any overtime hours
in the future, explaining in an internal
memorandum:

      Due   to the seizure that was experienced the
other day   by Rodney Spath, I am restricting
Rodney to   a maximum working day of no more than
8.5 hours   until further notice.

      I believe that most of the occurrences we see
here in the plant seem to come when Rodney is
working overtime. I must act on this to protect
Rodney’s safety.

The significance of this action, Spath argues,
lies in the fact that his employer does not
impose work limitations unless ordered by a
physician, and Spath did not see a physician for
the December 5th seizure.

B.   Spath’s Termination

      On January 4, 1997, Spath was working in the
Heat Treat Department of Hayes Wheels with fellow
employees Mike Shockome and John Helblig when he
allegedly tripped, fell backwards onto the burn
oven, and injured his back; this injury was not
associated with his epileptic disorder. After
determining that Spath was injured, Shockome and
Helblig paged the department supervisor Richard
Guenin. When Guenin arrived, he interviewed
Spath, who informed Guenin that he was sweeping,
tripped, and fell onto the burn oven. Based on
this information, Guenin completed the
"Supervisor’s First Report of Injury," writing:
"Rod tripped on paint line hinges on a skid and
fell into [the] burn off oven." Guenin read Spath
what he had written on the Report. Spath then
reviewed the Report himself, and signed it.
Afterwards, Spath went to the hospital for
treatment of his injuries.

      Before Spath left the plant on the day of his
injury, Guenin gave him a blank "Employee’s
Incident Report." Spath took this form home with
him in order that his wife might assist him in
completing it. On his next day of work, January
6, 1997, Spath submitted the signed Employee’s
Incident Report on which he wrote: "I was
sweeping the floor and triped [sic] over a broken
edge of duning and fell into the Age Oven hitting
my back." Based on this Employee’s Incident
Report, Hayes Wheels filed a worker’s
compensation claim on Spath’s behalf.

      Approximately two months after Spath’s accident,
employee Ted Johnson informed Hayes Wheels’
Safety Manager, Wayne Desai, that Spath was
injured while engaged in horseplay. Desai then
interviewed Shockome and Helblig who confirmed
Johnson’s story, explaining that Spath was
injured while attempting to catch a ball of duct
tape that Helblig threw to him. Both Helblig and
Shockome signed written statements which read:

On January 4, 1997, Rodney Spath, John Helblig,
and Mike Shockome were back in the heat treat
area. During their scheduled work time back
there, they started throwing a ball of duct tape
to each other. On one of the throws that John
sent to Rodney, it went higher than Rodney could
catch. Rodney tried to run back and catch the
ball and tripped over his own feet and fell
backwards onto the age oven.

After interviewing a total of five individuals,
each of whom confirmed that Spath was injured
while engaged in horseplay, Desai interviewed
Spath. Despite the evidence to the contrary,
Spath stuck to his original explanation: that he
was sweeping when he injured his back. Desai
confronted Spath with the statements of Shockome
and Helblig, but Spath continued to deny that he
was engaged in horseplay at the time he was
injured.

      Desai provided the results of his investigation
to Rachel Wust, a Human Resources Specialist.
Wust testified that, based on the statements of
Shockome and Helblig, she believed that Spath was
injured while playing with the duct tape ball and
not while sweeping. Thus, she was convinced that
Spath’s claim that he was injured while sweeping
was less than truthful. Wust concluded that Spath
had violated Plant Rule 5 by filing a false
report, and that he ought to be terminated for
that violation./4 Wust then consulted with Rick
Guernsey, the Plant Manager, and Rick Uecker,
another Human Resource Specialist, who both
concurred with her decision to terminate Spath.

      Because of Spath’s violation of Plant Rule 5,
Wust placed Spath on suspension without pay
beginning February 27, 1997, and scheduled a
termination meeting for March 11, 1997, to
present Spath with "the results of the
investigation and the action that the company had
to take based on that information." Wust, Desai,
Uecker, Guernsey, Spath, and his wife, Linda,
attended. At the meeting, Wust informed Spath
that his employment was being terminated
effective immediately for providing false
information concerning his injury.

C.    Spath’s Lawsuit

      On February 4, 1998, Spath filed suit against
his employer in the Northern District of Indiana,
alleging disability discrimination under the ADA,
age discrimination under the ADEA, and state law
retaliation. On October 26, 1998, Hayes Wheels
filed a motion for summary judgment, arguing that
Spath failed to present sufficient evidence from
which a rational trier of fact could reasonably
infer that his employer fired him either because
of his disability or because of his age. On
December 29, 1998, the trial judge agreed with
Hayes Wheels and granted the defendant summary
judgment. Spath appeals.

II.    ISSUE

      On appeal, Spath argues that the trial court
erred in granting summary judgment to his
employer because there are genuine issues of
material fact regarding whether Hayes Wheels
treated him differently from other employees
because of his disability./5

III.    ANALYSIS

A.    Standard of Review

      We review the trial court’s grant of summary
judgment de novo. See Jovanovic v. In-Sink-Erator
Div. of Emerson Elec. Co., 201 F.3d 894, 898 (7th
Cir. 2000). Summary judgment is appropriate when
the pleadings, depositions, answers to
interrogatories, admissions, and affidavits, if
any, demonstrate that there are no genuine issues
of material fact and the movant is entitled to
judgment as a matter of law. See Fed. R. Civ. P.
56(c). In determining whether a genuine issue of
material fact exists, we construe all facts in
the light most favorable to the party opposing
the motion and draw all justifiable inferences in
favor of that party. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). However,
the mere existence of an alleged factual dispute
between the parties is not sufficient to defeat
a motion for summary judgment. See id. at 252. In
this case, Spath is required to demonstrate that
there exists a genuine issue of triable fact and
that there is evidence on which a jury could
reasonably find for him. See Wollin v. Gondert,
192 F.3d 616, 620 (7th Cir. 1999).

B.   Spath’s Disparate Treatment Claim

      The ADA makes it unlawful to "discriminate
against a qualified individual with a disability
because of the disability." 42 U.S.C. sec.
12112(a). To establish a claim of discrimination
under the ADA, a plaintiff must demonstrate:
"’(1) that [he was] disabled within the meaning
of the ADA, (2) that [his] work performance met
[his] employer’s legitimate expectations, (3)
that [he] was discharged, and (4) that the
circumstances surrounding [his] . . . discharge
indicate that it is more likely than not that
[his] disability was the reason for these adverse
actions.’" Patterson v. Chicago Ass’n for
Retarded Citizens, 150 F.3d 719, 725 (7th Cir.
1998) (quoting Leffel v. Valley Fin. Servs., 113
F.3d 787, 794 (7th Cir. 1997)).

1. Hayes Wheels’ Different Treatment of Helblig,
a Non-Disabled Employee

      Initially, Spath argues that Hayes Wheels did
not terminate Helblig,/6 a non-disabled
employee, who also violated Plant Rule 5 by
submitting false information concerning Spath’s
injury. Spath uses this fact to argue that his
employer treated a similarly situated, non-
disabled employee better than it treated him, and
that we should therefore conclude that his
employer terminated him because of his
disability. See Troupe v. May Dep’t Stores, Co.,
20 F.3d 734, 736 (7th Cir. 1994).

      It is true that Helblig worked with Spath on
the day Spath was injured and told Guenin, at the
time of the initial investigation, that Spath was
injured when he was sweeping. However, it is also
the case that Helblig, unlike Spath, recanted his
original story after Desai questioned him a
second time; Helblig admitted to Desai that he
and Spath were engaged in horseplay and it was
that which led to Spath’s accident. After Helblig
informed Desai that his earlier version of events
surrounding Spath’s injury was false, Desai
prepared a statement, which Helblig signed, in
which Helblig again admitted that he had lied to
Guenin during the initial investigation of
Spath’s injury. In contrast, Spath never told any
of the investigators of his accident that he was
engaged in horseplay until halfway through his
termination meeting.

      Spath’s argument that he and Helblig are
similarly situated is misplaced. "It is
fundamental that to make a comparison of a
discrimination plaintiff’s treatment to that of
non-[disabled] employees, the plaintiff must show
that the ’comparables’ are similarly situated in
all respects." Mitchell v. Toledo Hosp., 964 F.2d
577, 583 (7th Cir. 1992) (emphasis in original).

      In our opinion, when reviewing the respective
employee histories of Spath and Helblig, it is
obvious that they are not similarly situated
employees in all respects. Although both
employees initially furnished false information
to Guenin, the similarities between them end
there. Although Helblig also originally gave a
false version of events concerning the accident
to Guenin, he later rescinded his false statement
both by telling Desai the truth and by signing a
statement containing an accurate recitation of
the facts concerning the accident. Spath, on the
other hand, persisted in giving false statements
regarding the cause of the accident and his
injury until the zero hour, when he finally
admitted he was engaged in horseplay at his
termination meeting. Furthermore, Spath, unlike
Helblig, on two separate occasions falsified
written company documents, the Supervisor’s First
Report of Injury and the Employee Incident
Report. In short, Spath and Helblig did not
engage in conduct of "comparable seriousness."
See id. We hold that Helblig and Spath are not
similarly situated employees and, therefore, no
discriminatory intent can be inferred from the
fact that Hayes Wheels did not terminate Helblig.
See Kaniff v. Allstate Ins. Co., 121 F.3d 258,
263 (7th Cir. 1997); Mitchell, 964 F.2d at 583 &
n.5.

2. Hayes Wheels’ Allegedly Different
Investigations for Non-Disabled Employees

      Spath next attempts to establish discriminatory
intent from his employers’ comparatively more
lenient investigations of non-disabled employees
accused of falsifying company records in
violation of Plant Rule 5. Spath argues that the
court "erred in not allowing discriminatory
inferences to be drawn from these investigations
which were without purpose, clandestine and
scripted for Spath and purposeful and open for
non-affected employees." Spath, however, offers
no more than bare accusations in his brief that
Hayes Wheels engaged in different methods of
investigation for disabled and non-disabled
employees. As we have repeatedly stated, "[i]t is
not this court’s responsibility to research and
construct the parties’ arguments." United States
v. Lanzotti, 205 F.3d 951, 957 (7th Cir. 2000).
Where, as here, a party fails to develop the
factual basis of a claim on appeal and, instead,
merely draws and relies upon bare conclusions,
the argument is deemed waived. See Bonds v.
Coca-Cola Company, 806 F.2d 1324, 1328 (7th Cir.
1986) (citing Morgan v. South Bend Community
School Corp., 797 F.2d 471, 480 (7th Cir. 1986));
see e.g., Gagan v. American Cablevision, Inc., 77
F.3d 951, 965 (7th Cir. 1996) (failure to cite
any factual or legal basis for an argument waives
it); Bratton v. Roadway Package Sys., Inc., 77
F.3d 168, 173 n.1 (7th Cir. 1996) (argument that
is not developed in any meaningful way is
waived); Freeman United Coal Mining Co. v. Office
of Workers’ Compensation Programs, Benefits
Review Bd., 957 F.2d 302, 305 (7th Cir. 1992)
(there is "no obligation to consider an issue
that is merely raised [on appeal], but not
developed, in a party’s brief"); United States v.
Haddon, 927 F.2d 942, 956 (7th Cir. 1991) ("A
skeletal ’argument’, really nothing more than an
assertion, does not preserve a claim [for
appellate review]."); United States v. Berkowitz,
927 F.2d 1376, 1384 (7th Cir. 1991) ("We
repeatedly have made clear that perfunctory and
undeveloped arguments . . . are waived . . . .").
Consequently, we need not address this argument
any further.

3. Hayes Wheels’ Refusal to Allow Spath to Return
to Work and Its Reduction of Spath’s Overtime
Hours

      Finally, Spath attempts to establish
discriminatory intent from, what he argues are,
changes in Hayes Wheels’ medical release policy.
First, Spath contends that although Hayes Wheels
had routinely allowed Spath to return to work
after his seizures during his first nine years
with the company with a release from any
physician, it ceased doing so after his seizure
on August 7, 1996. After this seizure, Hayes
Wheels refused to accept a release from either
the emergency room physician on duty when Spath
appeared for treatment/7 or from Spath’s regular
physician, Dr. Matthew. Instead, Hayes Wheels
told Spath that he could not return to work until
he got a release from his neurologist, Dr.
Stevens. Spath argues that this conduct was
contrary to Hayes Wheels’ medical release
practice because, according to him, other
employees on medical leave, who do not have a
seizure disorder, were uniformly allowed to
return to work upon presenting a release from any
physician.

      Second, Spath argues that in a separate
departure from its medical release policy, Hayes
Wheels reduced Spath’s overtime after his seizure
on December 5, 1996, despite the fact that it had
not imposed work restrictions, which were not
physician-approved, on him in the past.

      Spath’s allegations that Hayes Wheels’ changes
in its medical release policy should constitute
evidence of discriminatory intent are
unconvincing because the undisputed evidence in
this case established that Hayes Wheels had a
nine-year history of accommodating Spath’s
epileptic condition and his repeated seizures. It
is apparent that his employer was concerned with
Spath’s safety and wanted to make sure that Spath
was fit to return to work after his August 1996
seizure. In order to ensure this, Hayes Wheels,
on this occasion, requested that Spath submit a
medical release from a neurological specialist,
specially qualified to evaluate epileptic
disorders, rather than from a general practice
physician. Furthermore, although Spath was unable
to schedule an appointment with his neurologist
for several weeks, Hayes Wheels again
accommodated Spath and allowed him to return to
work in the interim. In an internal memorandum
Hayes Wheels explained its decision to allow
Spath to return to work without a release from a
neurologist: "Rodney has been set up to see a
specialist. A neurologist on Sept. 15th. He has
pleaded with us to be able to come back to work.
We have agreed to let him return but on day shift
and on special projects where we can keep a close
eye on him . . . until he can return to your
shift with a clean bill of health." Consistent
with its internal memorandum, Hayes Wheels
allowed Spath to return to work full time, even
changing his shift schedule, after the
neurologist examined Spath and recommended that
he "only work first shift." We are of the opinion
that the decision to require a release from a
neurologist was justified, especially in this
litigious society where Spath and/or other
employees may have been injured as a result of
one of Spath’s seizures after his return to work.
Furthermore, Hayes Wheels had, as even Spath
concedes, accommodated Spath’s seizures for over
nine years. Consequently, we refuse to infer any
discriminatory intent from Hayes Wheels’ decision
to request additional medical testing. Cf. Porter
v. United States Alumoweld Co., 125 F.3d 243,
245-46 (4th Cir. 1997).
       Similarly, Hayes Wheels’ restriction of Spath’s
overtime was justified because Spath’s
supervisors observed that most of Spath’s
seizures occurred when he was working overtime.
Thus, it was logical to believe that restricting
Spath’s overtime would, in all probability,
reduce his fatigue factor and thus the number of
seizures, as well as better ensure Spath’s safety
and the safety of his fellow employees. When
combined with Hayes Wheels’ long history of
accommodating Spath, we refuse to hold that the
restriction of his overtime evinces any
discriminatory intent. Cf. Howard v. Navistar
Int’l Transp. Corp., 904 F. Supp. 922, 930-31
(E.D. Wis. 1995), aff’d, 107 F.3d 13 (7th Cir.
1997).

      Moreover, Spath has failed to demonstrate how
the decisions to require a release from a
neurologist or restrict his overtime are causally
related to his termination, which occurred months
later. See Hunt-Golliday v. Metropolitan Water
Reclamation Dist. of Greater Chicago, 104 F.3d
1004, 1014 (7th Cir. 1997) (requiring that a
plaintiff making a claim of discrimination
"establish ’that the protected activity and the
adverse action were not wholly unrelated.’")
(quoting Simmons v. Camden County Bd. of Educ.,
757 F.2d 1187, 1189 (11th Cir. 1985)). Because
Spath has failed to present any evidence of
discriminatory intent, we hold that he has failed
to establish a prima facie case of disability
discrimination.

IV.   CONCLUSION

      We conclude that there is insufficient evidence
for a reasonable jury to find that Hayes Wheels
terminated Spath because of his epileptic
disorder. The decision of the district court to
grant summary judgment to Hayes Wheels is

AFFIRMED.



/1 Spath also alleged age discrimination under the
Age Discrimination in Employment Act (ADEA), 29
U.S.C. sec.sec. 621-34, and state law
retaliation, but Spath has abandoned those claims
on appeal.

/2 A neurologist is an expert in the treatment of
disorders of the nervous system such as epilepsy.
See Dorland’s Illustrated Medical Dictionary,
1130, 566 (28th ed. 1994).

/3 Hayes Wheels offered Spath time off pursuant to
the leave provisions of the Federal Medical Leave
Act, 29 U.S.C. sec.sec. 2601-54, until Spath
could get the release. But Spath, for reasons
unexplained in the record, refused this offer.

/4 Plant Rule 5 provides:

Commission of, or being a party to, the following
acts or related acts, will be sufficient grounds
for disciplinary action that may include
discharge: . . .

5) Falsifying an employment application,
misrepresenting or falsifying a leave of absence,
writing false statements on medical reports or
intentionally giving any false information
relating to employment or benefit application.

/5 Spath also makes a failure to accommodate claim,
see 42 U.S.C. sec. 12112(b)(5)(A), arguing that
his organic brain syndrome, mild mental
retardation, and dependent personality disorder--
disabilities not involved in his disparate
treatment claim--caused him to deny involvement
in the horseplay incident because he sometimes
does not remember what he was doing or what he
might have said in the past. In essence, Spath is
asking this Court to extend the ADA so as to
prevent an employer from terminating an employee
who lies, just because the lying is allegedly
connected to a disability. We are of the opinion
that the ADA does not require this. See generally
Jones v. Am. Postal Workers Union, 192 F.3d 417,
429 (4th Cir. 1999) ("The law is well settled
that the ADA is not violated when an employer
discharges an individual based upon the
employee’s misconduct, even if the misconduct is
related to a disability."). We, therefore,
decline to give any more consideration to this
issue.

/6 Helblig was only given a written warning and
advised that if he was ever caught "horseplaying"
again he "would have time off." Presumably this
means that he would be suspended or fired.

/7 In all probability the emergency room physician
had never seen Spath before, and was in no
position to have a complete knowledge of his past
medical history, including the number of prior
seizures, the severity of them, or if Spath
suffered any residuals as a result of the seizure
episode.
