In the
United States Court of Appeals
For the Seventh Circuit

No. 99-4334

Leon Szymanski,

Plaintiff-Appellant,

v.

Rite-Way Lawn Maintenance Co., Inc.,

Defendant-Appellee.



Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 C 0033--Edward A. Bobrick, Magistrate Judge.


Argued September 25, 2000--Decided November 2, 2000



      Before Flaum, Chief Judge, and Easterbrook and Diane
P. Wood, Circuit Judges.

      Flaum, Chief Judge. 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

      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").

      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.

      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.

      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.

      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.

      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
A. Predetermination of the Summary Judgment Motion

      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.

      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

      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).
      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).

      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.

      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.

      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.

      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.

      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

      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.



/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.
