231 F.3d 360 (7th Cir. 2000)
Leon Szymanski, Plaintiff-Appellant,v.Rite-Way Lawn Maintenance Co., Inc., Defendant-Appellee.
No. 99-4334
In the  United States Court of Appeals  For the Seventh Circuit
Argued September 25, 2000Decided November 2, 2000

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.  No. 98 C 0033--Edward A. Bobrick, Magistrate Judge.
Before Flaum, Chief Judge, and Easterbrook and Diane  P. Wood, Circuit Judges.
Flaum, Chief Judge.


1
Leon Szymanski, a double  amputee, brought suit under the Americans with  Disabilities Act, 42 U.S.C. sec. 12101 et seq.,  alleging that Rite-Way Lawn Maintenance Company,  Inc. ("Rite-Way"), unlawfully terminated  Szymanski's employment with the company after its  discovery of his impairment. Rite-Way filed a  motion for summary judgment, based on its  contention that Szymanski had never been hired by  the company, and hence could not have been  wrongfully terminated. The magistrate judge for  the district court granted summary judgment to  Rite-Way, finding that Szymanski had failed to  provide sufficient evidence to defeat the motion.  Szymanski now appeals, arguing that the district  court predetermined the factual dispute as to  whether Szymanski had been hired and  inappropriately granted summary judgment. For the  reasons stated herein, we reverse and remand.

I.  BACKGROUND

2
In 1973, as a result of a train accident,  surgeons were forced to amputate the lower  portion of Leon Szymanski's right foot as well as  the lower part of his left leg below the knee.  While Szymanski's mobility is limited, today,  with the assistance of artificial limbs and  custom made shoes, he walks without a limp.  Szymanski is a registered landscape architect  with the State of Illinois, who from December  1989 through May 1996, including all times  relevant to this case, was employed by Seeco  Consultants, Inc. ("Seeco").


3
In March 1993, Rite-Way, a lawn maintenance and  landscape design company run by William and  Carolyn Yorkman, placed an advertisement in the  Chicago Tribune seeking a landscape  designer/estimator. Szymanski responded to the  advertisement and at some point during the month,  interviewed for the available position. It is at  that point in the time line--late March of 1993--  when considerable discrepancies between the  parties' respective accounts of the facts begin  to appear.


4
For his part, Szymanski claims that the  interview, which took place on or about March 23,  1993 resulted in his being hired by the  defendant. He alleges that Rite-Way requested he  report for his first day of work on March 31 at  noon. According to the plaintiff, on the morning  of the 31st he went to Seeco for the purpose of  resigning from the company. However, unable to  locate his supervisor, Szymanski departed for his  noon start-time at Rite-Way without ever  resigning.


5
Perhaps the only relevant fact surrounding March  31 that is not in dispute in this case is that  Szymanski did in fact accompany William Yorkman  on a sales call. According to Szymanski, while on  this first work assignment, William Yorkman  noticed that one of Szymanski's feet appeared  larger than the other. When Yorkman questioned  Szymanski as to why his foot was swollen, the  plaintiff responded that his foot was not  swollen, but rather that he was a double amputee  wearing a prosthetic device. Szymanski recounts  that, at that point, William Yorkman told him to  contact Carolyn Yorkman later that evening.  Szymanski concluded his work, which included  going on sales calls unaccompanied by Yorkman.  That evening, when Szymanski telephoned Carolyn  Yorkman, he claims he was told to return to work  at 9 a.m. the following morning. However,  approximately fifteen minutes later, Szymanski  received another phone call from Carolyn Yorkman  informing him that his employment had been  terminated.


6
Not surprisingly, Rite-Way offers a very  different version of the events. Rite-Way argues  that Szymanski was unqualified for the position  and thus never hired. Rite-Way does not dispute  that the plaintiff accompanied William Yorkman on  a sales call. However, Rite-Way maintains that  the sales call was not part of any employment  agreement, but merely a portion of an interview  process. In support of its position that  Szymanski was not hired, Rite-Way offers that  while it requires all employees, prior to  commencing their employment, to complete a  variety of forms, including an employment  application Form W-4 and Form I-9, Szymanski was  never required to fill out any such forms.  Additionally, while Rite-Way requires that all  employees complete a weekly time sheet reflecting  any time that they have worked, Szymanski never  was asked to nor did fill out any such sheet.  Finally, Rite-Way points to inconsistencies in  Szymanski's testimony regarding whether it was  William or Carolyn Yorkman who actually hired him  as well as his dates of employment with Seeco as  indicative that Szymanski was never hired by  Rite-Way.


7
Szymanski brought suit against Rite-Way,  alleging that the company had violated the ADA by  discharging Szymanski because of his disability  and subjecting him to unequal terms and  conditions of employment because of his  disability. On July 16, 1999, the parties  appeared before the magistrate judge on Rite-  Way's motion to be granted leave to file a  summary judgment motion. The defendant believed  that, in-line with the then recent Supreme Court  decisions of Sutton v. United Airlines, Inc., 527  U.S. 471 (1999), and Murphy v. United Parcel  Serv., Inc., 527 U.S. 516 (1999), Szymanski would  not be considered disabled. In the course of the  conference, the court stated that it believed  Szymanski would be considered disabled, and that  a more appropriate subject for a summary judgment  motion would be whether the plaintiff had been  employed by Rite-Way. Following the conference,  Rite-Way moved for summary judgment, arguing that  it had never hired the plaintiff. The district  court granted summary judgment to Rite-Way,  finding that Szymanski had not met his burden in  opposing the motion. Specifically, the court  stated that Szymanski's unsupported assertion  that he was hired, coupled with contradictions in  his testimony, was insufficient to defeat  defendant's motion. Szymanski now appeals arguing  that a genuine issue of material fact did exist  as to whether he was hired.

II.  DISCUSSION

8
A. Predetermination of the Summary Judgment Motion


9
Szymanski's first contention on appeal is that  the district court "predetermined that a ruling  would be given in favor of Defendant-Appellee,  even prior [to] the motion for summary judgment  being filed." Szymanski bases this argument on  statements made by the court to the defense  during the July 16, 1999 conference. At that  conference, the defendant had sought permission  to file a summary judgment motion in which it  would claim that under the recent Supreme Court  decisions requiring that courts factor in the use  of any mitigating device in the determination as  to whether an individual is considered disabled  under the ADA, Szymanski would not be considered  disabled. The court disagreed, stating that while  it was not prejudging the case, it believed that  "if there is a successful motion for summary  judgment pending, it's one that goes to the basic  facts of this case and is outside the recent  rulings by the Supreme Court." In addition, the  court noted that though it did not know how such  a motion would "work out," it believed that a  motion for summary judgment based on the issue of  whether Szymanski had been employed was a more  realistic approach.


10
We need not use much ink to dispose of this  claim. We find that plaintiff's failure to  address this issue below (during the four and one  half months between the time of the conference  and the decision granting summary judgment),  either by seeking a recusal because of bias under  28 U.S.C. sec. 144, or moving to disqualify under  28 U.S.C. sec. 455, has resulted in waiver. See  In re Muller, 851 F.2d 916, 918-19 (7th Cir.  1988) (failure of a party to raise objection to  remarks made by the district court during a  preliminary hearing, until after an unfavorable  ruling was rendered, results in waiver).1

B. Summary Judgment

11
Szymanski's second argument on appeal is that  an issue of material fact exists regarding his  employment status that should have precluded the  granting of summary judgment.2 In reviewing a  district court's grant of summary judgment, we  assess the record de novo and reach our own  conclusions of law or fact as they flow from the  record before us. Miranda v. Wisconsin Power &  Light Co., 91 F.3d 1011, 1014 (7th Cir. 1996).  This plenary review of the evidence requires that  we employ the standard prescribed in Rule 56(c)  of the Federal Rules of Civil Procedure, and  determine that summary judgment is appropriate  "if the pleadings, depositions, answers to  interrogatories, and admissions on file, together  with the affidavits, if any, show that there is  no genuine issue as to any material fact and that  the moving party is entitled to judgment as a  matter of law." Simply put, Rule 56(c) mandates  an approach in which summary judgment is proper  only if there is no reasonably contestable issue  of fact that is potentially outcome-  determinative. Wallace v. SMC Pneumatics, Inc.,  103 F.3d 1394, 1396 (7th Cir. 1997).


12
In resolving a motion for summary judgment, we  will neither come to a conclusion on factual  disputes nor weigh conflicting evidence. Miranda,  91 F.3d at 1014. Rather, we will limit our  analysis of the record to deciding the  aforementioned question of whether a genuine  issue of material fact exists for trial. Id. Such  an issue exists if "[t]here is sufficient  evidence favoring the nonmoving party for a jury  to return a verdict for that party." Anderson v.  Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). In  reaching a conclusion as to the presence of a  genuine issue of material fact, we must view the  evidence and draw all inferences in a way most  favorable to the nonmoving party. Tolentino v.  Friedman, 46 F.3d 645, 649 (7th Cir. 1995).  However, this is not to suggest that a nonmoving  party can survive summary judgment with merely a  scintilla of evidence supporting its position.  Essex v. United Parcel Serv. Inc., 111 F.3d 1304,  1308 (7th Cir. 1997). "[A] party will be  successful in opposing summary judgment only when  they present definite, competent evidence to  rebut the motion." Smith v. Severn, 129 F.3d 419,  427 (7th Cir. 1997) (citations and internal  quotation marks omitted).


13
Applying the standard set forth above, we  believe Szymanski's employment status with Rite-  Way constitutes a disputed issue of material  fact. In determining to the contrary, the  district court stated that Szymanski's  unsupported assertions that he was hired are not  enough to defeat a motion for summary judgment.  The court cited United States v. Torres, 142 F.3d  962, 968 (7th Cir. 1998), for the proposition  that "[s]elf serving affidavits without factual  support in the record will not defeat a motion  for summary judgment." While we do not suggest  that statement is incorrect, we find it  inapplicable in this instance. In Torres, this  court examined a situation where, in response to  credible evidence, defendants repeatedly altered  their testimony in order to create disputed facts  and defeat summary judgment. In contrast, in this  case, both parties rely on affidavits and  deposition testimony as paramount support for  their positions. Szymanski's statement that he  was told by Rite-Way that he was hired is most  surely a self-serving assertion, unsupported by  other sources. However, despite Rite-Way's  contention to the contrary, its proffers are no  less self-serving, and no more supported in the  record. Specifically, Rite-Way argues that the  facts contradict Szymanski's claim that he was  hired, in that Szymanski did not fill out  employment forms and time sheets on his first  day. While Szymanski did not fill out said forms,  the only proof that a new employee was required  to complete that paperwork immediately upon  beginning employment at Rite-Way comes from  unsupported verbal assertions by the Yorkmans.  Where the moving party's version of material  facts is supported solely by self-serving  assertions, self-serving assertions to the  contrary by the nonmoving party may be sufficient  to create a credibility dispute which is best  resolved at trial. As such, we find that the  evidence produced by Szymanski is not  insufficient, in this instance, to defeat a  summary judgment motion.


14
Though we believe Szymanski's declaration that  he was hired could preclude summary judgment,  that does not dispose of the issue. If Rite-Way  could provide proper additional evidence to show  that Szymanski was never hired, then Szymanski's  assertion to the contrary would not, by itself,  "carry the day." Our de novo review requires that  we examine the record as a whole in order to  determine whether Szymanski's employment status  was in dispute. In granting summary judgment, the  court stated that certain factual discrepancies  undercut the plaintiff's position and lent  credence to the defendant's position. The court  believed that these factors, in the absence of  supporting evidence from Szymanski, created a  record in which there was no dispute as to  Szymanski's employment status. While we do not  suggest that these "discrepancies" assist  Szymanski's case, we do believe that they are not  sufficiently damning so as to negate the dispute  the conflicting affidavits create.


15
Specifically, the court adopted defendant's  contention that Szymanski's failure to resign  from Seeco prior to beginning employment with  Rite-Way dispelled any notion that Szymanski had  been hired by Rite-Way. We recognize that it  might not be the ordinary course of action for  one to begin work with a new employer without  formally leaving one's previous employment.  However, we cannot concur that Szymanski's  failure to resign from Seeco necessarily means  that he was never hired by Rite-Way. First, it is  altogether common for a person to have more than  one job. Second, Szymanski has provided an  explanation which is at least plausible, in that  he was unable to locate his supervisor on the day  in question in order to resign. Though timetables  do suggest his supervisor was present the morning  Szymanski was seeking him out, that does nothing  to contradict Szymanski's assertion that he was  unable to locate him. In retrospect, that  Szymanski did not resign from Seeco, regardless  of the appropriateness of Rite-Way's actions,  proved beneficial to Szymanski, as he was able to  return the next day to Seeco.


16
Likewise, the defendant has presented certain  inconsistencies in Szymanski's testimony as  evidence that he was never employed by Rite-Way.  In the course of discovery, Szymanski provided  conflicting testimony as to whether he was  actually hired by William or Carolyn Yorkman, as  well as regarding his dates of employment with  Seeco. Defendant points out these inconsistencies  and notes that a plaintiff cannot rely on  conflicting affidavits and deposition testimony  in order to defeat a motion for summary judgment.  See Piscione v. Ernst & Young, L.L.P., 171 F.3d  527, 532 (7th Cir. 1999). While we agree with  that proposition of law, the plaintiff here is  not attempting to rely on inconsistencies in  order to defeat a summary judgment motion. In  fact, it is the defendant here who is attempting  to make use of the inconsistencies in support of  summary judgment. We believe that any  inconsistencies in Szymanski's testimony are best  left to a jury making a credibility  determination, and are not severe enough as to  cast beyond dispute the issue of whether  Szymanski was employed by Seeco.


17
Finally, we note the presence of factors which,  in contrast to Szymanski's failure to resign from  Seeco, seem to support Szymanski's claim that he  was hired by Rite-Way. Neither the record nor  counsel at oral argument have provided this court  with a sufficient explanation as to why Szymanski  went on the sales call with William Yorkman on  March 31. There has been no indication that going  on such a call was a normal interviewing practice  of the company. Furthermore, Rite-Way's  contention that Szymanski was not hired because  he was unqualified for the job seems inconsistent  with having him accompany the owner to solicit  new business. Overall, viewing the evidence in  the light most favorable to the nonmoving party,  namely Szymanski, we believe there is a disputed  issue of material fact regarding Szymanski's  employment status which precludes the grant of  summary judgment. Because the summary judgment  motion presented to the district court did not go  beyond the issue of hiring, we will not examine  the remainder of the claim for discriminatory  termination.

III.  CONCLUSION

18
For the foregoing reasons, we Reverse the  district court's grant of summary judgment in  favor of the defendant and we Remand this case to  the district court for further proceedings  consistent with this opinion.



Notes:


1
 Additionally, we fail to see how the district  court acted inappropriately in this matter. A  perusal of the conference transcript makes clear  that the district court did nothing more than  encourage the defense to brief the issue it felt  relevant. The court may have commented on the  relative strength that it believed each motion  might have. However, those comments cannot be  said to rise to the level of a predetermination.


2
 Szymanski's underlying claim for discriminatory  termination arises under 42 U.S.C. sec. 12112(a)  which provides that: "No covered entity shall  discriminate against a qualified individual with  a disability because of the disability of such  individual in regard to job application  procedures, the hiring, advancement, or discharge  of employees, employee compensation, job  training, and other terms, conditions and  privileges of employment." We recognize that this  statute protects both discriminatory firing as  well as the discriminatory refusal to hire.  However, Szymanski did not advance the argument  that in the alternative, if the court finds that  he was never employed by Rite-Way, that the  company's failure to hire him was in and of  itself a violation of the ADA. Since we will not  address such a cause of action, the district  court's decision regarding Szymanski's employment  status becomes a dispositive issue for  Szymanski's entire case against Rite-Way.


