In the
United States Court of Appeals
For the Seventh Circuit

No. 99-2431

Kent Furnish,

Plaintiff-Appellant,

v.

SVI Systems, Incorporated,

Defendant-Appellee.

Appeal from the United States District Court
for the Central District of Illinois.
No. 96 C 1581--Joe B. McDade, Chief Judge.

Argued September 10, 2001--Decided October 22, 2001



  Before Posner, Kanne, and Evans, Circuit
Judges.

  Kanne, Circuit Judge. Plaintiff, Kent
Furnish, brought a suit against his ex-
employer, alleging violations of the
Americans with Disabilities Act ("ADA").
42 U.S.C. sec. 12101. Defendant, SVI
Systems, terminated plaintiff’s
employment on July 25, 1996, for the
stated reason of "unsatisfactory work
performance." Plaintiff alleges that he
was terminated because he suffered from
cirrhosis caused by chronic Hepatitis B.
The district court granted summary
judgment in favor of defendant on the
grounds that plaintiff failed to show
that he was disabled under the ADA. We
agree with the district court’s
conclusion that plaintiff was not
disabled, and therefore affirm.

I.   History

  Defendant SVI Systems ("SVI"), based in
Peoria, Illinois, provides real time
video services to hotels and motels in
the eastern and midwestern portions of
the United States. SVI salespeople enter
into contracts with individual hotels and
motels, and then SVI technicians go on-
site to install the equipment in the
facility. After installation, SVI
monitors the equipment from its offices
in Peoria.
  In January, 1995, plaintiff accepted a
position with SVI as Director of
Technical Operations. Plaintiff was 44
years old with 23 years’ experience in
the cable television and transmission
systems industry and had a degree
inelectrical engineering. Plaintiff was
responsible for pre-installation
technical work and for installing SVI’s
video systems in hotels. Plaintiff was
also responsible for hiring and training
new installers. In September, 1995, Eric
Goldberg, plaintiff’s supervisor, gave
plaintiff a favorable job performance
review. Goldberg further recommended that
plaintiff receive a 4% raise, rather than
the 3% raise that most employees
received.

  On August 29, 1995, gastroenterologist
Dr. Ben Dolin diagnosed plaintiff with
chronic Hepatitis B. Dr. Dolin later took
a biopsy of plaintiff’s liver, and, on
January 9, 1996, a pathologist analyzed
the tissue sample and concluded that
plaintiff suffered from chronic Hepatitis
B and severe septal fibrosis suggestive
of liver disease. Hepatitis B damages
liver cells so that there are fewer cells
to perform the liver’s detoxification
function and to produce glucose. Fibrosis
is liver scarring, which affects the
liver’s ability to perform its blood
filtering function.

  On January 26, 1996, plaintiff began
treating his disease with the drug
Interferon. The Interferon treatment
caused plaintiff to experience flu-like
symptoms such as fatigue, nausea, and
achiness. By May, 1996, Dr. Dolin
concluded that the Interferon treatment
was not working and referred plaintiff to
the University of Iowa Medical School for
treatment. On June 17, 1996, plaintiff
was seen by Dr. Douglas LaBreque, a
professor of Internal Medicine and
Director of Liver Services at the
University of Iowa Medical School. Blood
tests taken by Dr. LaBreque that day
detected liver enzymes that indicated
that plaintiff’s liver was functioning
normally. Dr. LaBreque testified at his
deposition that as of June, 1996,
plaintiff’s liver functioning was
"adequate," meaning that he had enough
normal liver cells "to do the job." Dr.
LaBreque placed plaintiff on an
experimental drug called Lamivudae, and
by December, 1997, plaintiff’s liver
disease was dormant.

  In January, 1996, soon after he was
diagnosed with Hepatitis B, plaintiff met
with his new supervisor, Don Decker, and
with Beth Salmon, SVI’s president.
Plaintiff informed them about his disease
and warned them that in the coming
months, he may suffer from a failure to
sleep, nausea, mood swings, and
irritability because of the disease and
its treatment. He also explained to them
that these same symptoms may require him
to miss some work. Soon thereafter,
plaintiff’s wife, a registered nurse,
also informed Salmon that plaintiff may
need to miss some work in the future
because of his flu-like symptoms and
because of doctor appointments. She also
told Salmon that she was worried that
plaintiff would be unable to travel. At
his deposition, however, Dr. LaBreque
testified that plaintiff was not under
any work or travel restrictions.

  In March, 1996, after plaintiff told his
supervisor that his health prevented him
from traveling to locations far from
Peoria in order to complete
installations, Decker responded that
plaintiff was to do whatever was
necessary to complete the jobs. That same
month, Decker reprimanded plaintiff for
missing a scheduled meeting with an
installer. Plaintiff claimed that he
missed the meeting because he had vomited
and had to go home to rest.

  When Decker became plaintiff’s
supervisor in January, 1996, SVI had
hundreds of outstanding installations
that needed completion. In order to
complete these installations, Decker
wanted the installers to complete twelve
installations per week. By June 1, 1996,
plaintiff had fallen behind on these
installations, and, by that time, SVI had
contracted with hundreds of additional
properties for installations. Because he
had fallen behind on these installations,
on July 1, 1996, plaintiff was directed
to focus solely on pre-installation
technical work and was relieved of his
duties with respect to installations.

  Plaintiff was fired on July 25, 1996.
Decker prepared a memorandum
memorializing the reasons for plaintiff’s
discharge, stating that he was being
fired for "unsatisfactory work
performance." This memorandum listed
problems with plaintiff’s work
performance including: frequent installa
tion failures, failure to reprimand
employees or establish controls that
would make them accountable, and
plaintiff’s weak communication skills and
lack of organization. Further, the
memorandum gave three rationales for
plaintiff’s termination: 1) plaintiff’s
current responsibilities did not justify
his salary; 2) there were no additional
responsibilities that plaintiff had shown
an ability to assume; and 3) defendant
was not willing to offer plaintiff a
reduced salary that matched the duties he
was performing. At that time there were
still properties that awaited technical
attention from plaintiff. Plaintiff
admitted that he did not meet Decker’s
new installation goals, but claimed that
the goals were unreasonable, and that his
failure to meet the goals resulted from
incorrect advance work done by others and
from misinformation concerning the
installation sites.

  On December 18, 1996, plaintiff brought
a lawsuit alleging, inter alia,
discrimination on the basis of a
disability./1 He brought suit under the
ADA, which prohibits discrimination in
employment of a "qualified individual
with a disability." 42 U.S.C. sec.
12112(a). On May 17, 1999, the district
court entered an order granting summary
judgment in favor of SVI. The order
concluded that plaintiff was not disabled
under the ADA because his disease did not
substantially limit a major life
activity.

II.    Analysis

A.    Standard of Review

  We review a grant of summary judgment de
novo, viewing all of the facts, and
drawing all reasonable inferences
therefrom, in favor of the nonmoving
party. See Cent. States, Southeast and
Southwest Areas Pension Fund v. White,
258 F.3d 636, 639 (7th Cir. 2001).
Summary judgment should be granted 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 a judgment as a
matter of law." Cengr v. Fusibond Piping
Sys., Inc., 135 F.3d 445, 450 (7th Cir.
1998) (quoting Fed. R. Civ. P. 56(c)).

B. Was Plaintiff a "Qualified
Individual with a Disability?"

  The ADA prohibits an employer from
"discriminat[ing] against a qualified
individual with a disability because of
the disability." 42 U.S.C. sec. 12112(a).
A "qualified individual with a
disability" is "an individual with a
disability who, with or without
reasonable accommodation, can perform the
essential functions of the employment
position . . . ." Id. sec. 12111(8).
Further, a "disability" means "a physical
or mental impairment that substantially
limits one or more of the major life
activities of such individual."/2 Id.
sec. 12102(2)(A). Thus, to prevail on his
ADA claim, plaintiff must show that (1)
he is "disabled"; (2) he is qualified to
perform the essential function of the job
either with or without reasonable
accommodation; and (3) he suffered an
adverse employment action because of his
disability. See Moore v. J.B. Hunt
Transp., Inc., 221 F.3d 944, 950 (7th
Cir. 2000).

  The Supreme Court has devised a three-
part test for determining whether a
plaintiff is "disabled" under 42 U.S.C.
sec. 12102(2)(A), thereby satisfying the
first prong of an ADA discrimination
claim. See Bragdon v. Abbott, 524 U.S.
624, 631, 118 S. Ct. 2196, 141 L. Ed. 2d
540 (1998). First, we determine whether
plaintiff suffered from a physical or
mental impairment. See id. If so, we then
determine whether the major life activity
claimed by plaintiff constituted a major
life activity under the ADA. See id. at
637. Finally, we analyze whether
plaintiff’s impairment substantially
limited the major life activity. See id.
at 639.

  Plaintiff suffers from cirrhosis caused
by chronic Hepatitis B. Dr. Dolin
testified at his deposition that
cirrhosis "is significant scarring [of
the liver] to the point where it
compromises the liver." This reduced
liver functioning affects the ability of
plaintiff’s body to eliminate toxins and
maintain appropriate glucose levels.
Therefore, we agree with the district
court’s conclusion that plaintiff
suffered from a physical impairment. See,
e.g., Lawson v. CSX Transp., Inc., 245
F.3d 916, 923 (7th Cir. 2001) (holding
plaintiff’s insulin-dependent diabetes
was a physical impairment because it
affected "many of the organ systems in
his body").

  Plaintiff’s ADA claim fails, however,
because his alleged major life activity
is not a major life activity under the
ADA. On appeal, plaintiff alleges that
his Hepatitis B impairment affected the
major life activity of "liver function."
The Equal Employment Opportunity
Commission Regulations interpreting the
ADA ("ADA regulations") describe major
life activities as activities such as
"caring for oneself, performing manual
tasks, walking, seeing, hearing,
speaking, breathing, learning, and
working." 29 C.F.R. sec. 1630.2(i). While
this list is intended to be illustrative,
rather than exhaustive, see Sinkler v.
Midwest Property Management Limited
Partnership, 209 F.3d 678, 684 (7th Cir.
2000), "liver function" bears little
resemblance to the major life activities
enunciated in the ADA regulations.

  The Supreme Court’s decision in Bragdon,
524 U.S. at 637-38, clarifies what type
of activities constitute major life
activities under the ADA. In that case,
the plaintiff, who had the HIV virus,
brought an ADA claim against a dentist
who refused to treat her in his office.
See id. at 629. The plaintiff claimed
that her HIV infection substantially lim
ited the major life activity of
reproduction. See id. at 637. The Court
concluded that reproduction was a major
life activity for ADA purposes. See id.
at 638. Citing regulations that were
nearly identical to the ADA regulations,
the Court reasoned that reproduction was
a major life activity because it was
"central to the life process." Id. In
other words, "the touchstone for
determining an activity’s inclusion under
the statutory rubric is its
significance." Id. (citation omitted).

  This court has interpreted Bragdon to
mean that a major life activity is
something that is "integral to one’s
daily existence." Lawson, 245 F.3d at
923. Using this standard, this court has
held that "eating constitutes a major
life activity for purposes of the ADA."
Id. (quotation omitted). Similarly, we
have held that working can be a major
life activity. See, e.g., Skorup v.
Modern Door Corp., 153 F.3d 512, 514 (7th
Cir. 1998). Although liver function is
"integral to one’s daily existence" in
that one needs a healthy liver to remove
toxins from the blood, liver function is
not "integral to one’s daily existence"
under Bragdon and its progeny. The
alleged major life activity here--liver
function--is a characteristic of the
impairment, much as a decline in white
blood cells is a characteristic of the
HIV virus. See Bragdon, 524 U.S. at 635.
However, in Bragdon, the Court did not
hinge its conclusion that the plaintiff
was disabled on a characteristic of her
impairment. For example, the Court did
not focus on the fact that her "blood
health" was impacted. Rather, the Court
evaluated the impairment’s impact on her
ability to reproduce. The activities that
have been held to be major life
activities under the ADA (e.g., eating,
working, reproducing) are not the impair
ments’ characteristics--they are
activities that have been impacted
because of the plaintiffs’ impairments.
Therefore, we reject the notion that
"liver function" is a major life activity
under the ADA.

  Plaintiff’s argument misses that
essential link. He argues that Hepatitis
B should be a disability because it is a
chronic illness that affects the
functioning of a major organ. However,
under the ADA, even a serious illness
such as Hepati tis B does not equate with
a disability. Only when the impact of the
illness substantially limits a major life
activity--such as working--is an
individual considered disabled within the
meaning of the ADA.

  Plaintiff, however, has never asserted
"working"--or any other activity--as
being substantially limited. Liver
function is the only alleged "major life
activity" that this court can consider,
as it was the only one articulated by
plaintiff. See Bragdon, 524 U.S. at 638.
In that case, the Court noted that a
party who had the HIV virus could have
alleged that the infection imposed
substantial limitations on a number of
major life activities other than
reproduction. Id. at 637. However,
because "the case ha[d] been treated as
one in which reproduction was the major
life activity limited by the impairment,"
the Court "circumscribe[d] [their]
discussion to the activity of
reproduction." Id. at 637-38. Similarly,
although a party could theoretically
allege a number of major life activities
that were substantially limited by
Hepatitis B and cirrhosis, plaintiff
chose to hinge his case on liver function
being a major life activity. As it is not
a major life activity under the ADA,
plaintiff is not disabled and cannot
prevail on his ADA claim.

  Even if liver function served as a major
life activity under the ADA, plaintiff’s
claim would fail because he cannot prove
that his disease "substantially limited"
the functioning of his liver. The ADA
regulations state that a person is
"substantially limited" by an impairment
if that person is either "’[u]nable to
perform a major life activity’ or
is’significantly restricted as to the
condition, manner or duration’ under
which the individual can perform the
major life activity as compared to the
average person in the general
population." Skorup, 153 F.3d at 514
(quoting 29 C.F.R. sec. 1630.2(j)(1)).
Thus, the analysis for determining
whether a person’s impairment
substantially limits a major life
activity has three facets: 1) the nature
and severity of the impairment; 2) the
duration of the impairment; and 3) the
permanent or long-term impact resulting
from the impairment. See Davidson v.
Midelfort Clinic, Ltd., 133 F.3d 499, 506
n.3 (7th Cir. 1998) (citing 29 C.F.R.
sec. 1630.2(j)(2)). The district court
relied on the deposition testimony of
Drs. LaBreque and Dolin to conclude that
plaintiff’s liver function was not
substantially limited. Dr. LaBreque
testified that as of June, 1996, one
month before plaintiff was fired, his
"liver function was right on the
borderline, if you will, but it was--it
was adequate." Dr. Dolin testified that
as of June, 1997, plaintiff’s "liver
function tests [were] absolutely normal."

  The record reveals that plaintiff’s
liver function was not substantially
limited. To summarize plaintiff’s
relevant medical history, Dr. Dolin
prescribed Interferon treatment in
January, 1996, but by May, 1996, Dr.
Dolin concluded that the treatment was
not working. In June, 1996, he referred
plaintiff to Dr. LaBreque, who concluded
that plaintiff’s liver function was
"adequate." Although plaintiff suffered
from some fatigue due to his disease, Dr.
LaBreque placed no work or travel
restrictions on plaintiff. In fact,
plaintiff only missed 12 hours of work
during the entire year in 1996, and there
was no evidence demonstrating that
plaintiff ever suffered from restrictions
on his ability to care for himself or
perform manual tasks./3 Dr. LaBreque
placed plaintiff on the drug Lamivudae,
and by June, 1997, tests revealed that
plaintiff’s liver function was
"absolutely normal." Plaintiff ceased
taking Lamivudae in December, 1997, at
which time his virus was completely
dormant.

  Looking at the three factors--the nature
and severity of the impairment, its
duration, and the long-term effects--it
is clear that plaintiff’s disease did not
substantially limit his liver function.
In evaluating the effect of plaintiff’s
impairment on his liver function, "we
must examine the plaintiff’s condition as
it exist[ed] after corrective or
mitigating measures used to combat the
impairment" were taken. Lawson, 245 F.3d
at 924. At the time of plaintiff’s
termination, Dr. LaBreque considered
plaintiff’s liver function to be
"adequate" enough "to do the job." As Dr.
LaBreque stated in his deposition: "if
you’ve got cirrhosis, [plaintiff is]
doing as well as you can do with
cirrhosis." The duration of plaintiff’s
impairment also militates against finding
that his liver function was substantially
impaired. After treating his disease with
Lamivudae, plaintiff’s liver disease
became dormant. Finally, plaintiff may
not suffer long-term effects from his
liver disease. Dr. Dolin testified that
in June, 1997, plaintiff’s liver function
tests were "absolutely normal" with "no
evidence of liver failure." Therefore,
plaintiff’s Hepatitis B and cirrhosis did
not substantially limit his liver
function.

III.   Conclusion

  Because of the foregoing, we AFFIRM the
district court’s grant of summary
judgment in favor of defendant on the
grounds that plaintiff was not disabled
under the ADA.

FOOTNOTES

/1 Plaintiff also alleged violations of the Employee
Retirement and Income Security Act ("ERISA"). 29
U.S.C. sec. 1132(a)(1)(b). However, the alleged
ERISA violations are not at issue on this appeal.

/2 The ADA also defines "disabled" as "a record of
such impairment" or "being regarded as having
such impairment." 42 U.S.C. sec.sec. 12102(2)(B)
and (C). On appeal, plaintiff relies solely on
the definition under 42 U.S.C. sec. 12102(2)(A)
as the basis for his ADA claim.

/3 It should be noted, once again, that plaintiff
never asserted "working" as his major life activ-
ity.
