In the
United States Court of Appeals
For the Seventh Circuit

Nos. 01-3379 and 01-3699

George S. Szmaj,

Plaintiff-Appellant,

v.

American Telephone & Telegraph Company,

Defendant-Appellee.

Appeals from the United States District Court
for the Central District of Illinois.
No. 99 C 1353--Joe B. McDade, Chief Judge.

Argued April 19, 2002--Decided May 28, 2002



  Before Bauer, Posner, and Easterbrook,
Circuit Judges.

  Posner, Circuit Judge. The plaintiff
brought suit under the Americans with
Disabilities Act and is appealing from
the grant of judgment as a matter of law
to the defendant, his former employer,
after a jury rendered a verdict for the
plaintiff. The plaintiff has an
unpleasant physical ailment known as
congenital nystagmus, which makes it
difficult for him to focus his eyes. The
condition prevents him from holding a job
in which he has to spend more than
50percent of his time reading. A long-
term employee of AT&T, he several years
ago applied for a job in the company that
required him to read a computer screen
for at least 80 percent of the workday.
This was too much for him. He contends,
and for purposes of the appeal we accept,
that the company made no effort to
accommodate his condition by giving him a
job that would require less reading. And
the Act does impose a duty of
accommodation. But he has put the cart
before the horse. The duty of
accommodation arises only if the employee
is determined to have a disability within
the meaning of the Act, e.g., Hoffman v.
Caterpillar, Inc., 256 F.3d 568, 572 (7th
Cir. 2001); Bombard v. Fort Wayne
Newspapers, Inc., 92 F.3d 560, 563 (7th
Cir. 1996); Gelabert-Ladenheim v.
American Airlines, Inc., 252 F.3d 54, 59
and n. 5 (1st Cir. 2001); Swain v.
Hillsborough County School Board, 146
F.3d 855, 858 (11th Cir. 1998), and we
agree with the district judge that no
jury could reasonably find that the
plaintiff did have such a disability.

  A disability is a condition that
substantially prevents a person from
engaging in one of the major activities
of life, such as walking, seeing, or
reproduction. Bragdon v. Abbott, 524 U.S.
624, 639 (1998); Furnish v. SVI Systems,
Inc., 270 F.3d 445, 449 (7th Cir. 2001);
Nielsen v. Moroni Feed Co., 162 F.3d 604,
610 n. 11 (10th Cir. 1998). We can
imagine, though with some difficulty, a
society of bookworms in which a person
unable to read more than 50 percent of
the time would be deemed unable to engage
in a major activity of life. That is not
our society. To be unable to read all day
long is a misfortune for someone who
loves to read or who wants to hold a job
(a judgeship for example!) that requires
continuous reading, but the ability to
read all day long is not a major life
activity. There is case authority that to
have enough vision to be able to read a
significant part of the day is such an
activity, see Bartlett v. New York State
Board of Law Examiners, 226 F.3d 69, 80-
82 (2d Cir. 2000); Gonzalez v. National
Board of Medical Examiners, 225 F.3d 620,
626 (6th Cir. 2000), though also
authority against, see Hileman v. City of
Dallas, 115 F.3d 352, 355 n. 4 (5th Cir.
1997) (weak authority, however, because
there is no discussion of the point, only
a conclusion), but that much vision the
plaintiff has. True, he cannot read at
all without some discomfort, because his
difficulty in focusing is continuous; but
discomfort and disability are not
synonyms. Weiler v. Household Finance
Corp., 101 F.3d 519, 526-27 (7th Cir.
1996); Taylor v. Pathmark Stores, Inc.,
177 F.3d 180, 187 (3d Cir. 1999); cf.
Stuckey v. Sullivan, 881 F.2d 506, 509
(7th Cir. 1989); Craig v. Apfel, 212 F.3d
433, 436 (8th Cir. 2000). Otherwise a
very large fraction of the work force
would be disabled.

  We can imagine a person who though
disabled within the meaning of the Act is
by heroic efforts able to work even
without an accommodation, and we agree
that such a person should not be
penalized by being deemed not to be
disabled and so not entitled to an
accommodation when he finally seeks one.
Cf. Jones v. Shalala, 21 F.3d 191, 192-93
(7th Cir. 1994); Kelley v. Callahan, 133
F.3d 583, 588 (8th Cir. 1998); Cline v.
Sullivan, 939 F.2d 560, 565-66 (8th Cir.
1991). This plaintiff’s discomfort
clearly is not that excruciating; else he
would not have worked so many years in
jobs that required him to spend a
substantial amount of his workday
reading. See Roth v. Lutheran General
Hospital, 57 F.3d 1446, 1455 (7th Cir.
1995); Cooper v. Olin Corp., 246 F.3d
1083, 1088 (8th Cir. 2001).

  But, argues the plaintiff, even if he
has no case, the district court was wrong
to grant the defendant judgment as a
matter of law, because the defendant
failed to renew its motion for judgment
as a matter of law at the close of all
the evidence, that is, after the
defendant had put in its own evidence.
The defendant had filed the motion at the
close of the plaintiff’s case and the
judge had taken it under advisement. Only
after the jury brought in a verdict for
the plaintiff did the defendant renew the
motion, and that was, of course, after,
not at the close of, all the evidence.

  Rule 50(b) of the Federal Rules of Civil
Procedure implies (no stronger word is
possible) that a motion for judgment as a
matter of law must indeed be renewed at
the close of all the evidence if the
moving party wants to obtain such relief
should the jury bring in a verdict
against him. Noting that we had not in
the past "applied this rule rigidly,"
Downs v. Volkswagen of America, Inc., 41
F.3d 1132, 1139-40 (7th Cir. 1994), held
that renewing the motion at the close of
all the evidence was indeed a
prerequisite to obtaining a post-verdict
judgment as a matter of law, even if
there was no prejudice to the opposing
party from failing to renew. See also
Mathieu v. Gopher News Co., 273 F.3d 769,
776-77 (8th Cir. 2001). We based this
conclusion on the recent decision of the
civil-rules committee to "retain the
requirement that a motion for judgment be
made prior to the close of the trial,
subject to renewal after a jury verdict
has been rendered." Committee Note on
1991 Amendment to Fed. R. Civ. P. 50. But
neither the rule nor the note discusses
the consequences of failure to comply
strictly with the rule.

  We repeated the holding of Downs in
Umpleby v. Potter & Brumfield, Inc., 69
F.3d 209, 212 (7th Cir. 1995), and Mid-
America Tablewares, Inc. v. Mogi Trading
Co., 100 F.3d 1353, 1364 (7th Cir. 1996).
Most of the other circuits, even in their
post-1991 decisions, have taken a more
forgiving view of harmless violations of
the renewal requirement. See Giles v.
General Electric Co., 245 F.3d 474, 481-
83 (5th Cir. 2001); Taylor Publishing Co.
v. Jostens, Inc., 216 F.3d 465, 472-73
(5th Cir. 2000); Pahuta v. Massey-
Ferguson, Inc., 170 F.3d 125, 129 (2d
Cir. 1999); Alcatel USA Inc. v. DGI
Technologies, Inc., 166 F.3d 772, 781
(5th Cir. 1999); Singer v. Dungan, 45
F.3d 823, 829 (4th Cir. 1995); Keisling
v. Ser-Jobs for Progress, Inc., 19 F.3d
755, 759 (1st Cir. 1994); Lightning Lube,
Inc. v. Witco Corp., 4 F.3d 1153, 1173-74
(3d Cir. 1993); Riverview Investments,
Inc. v. Ottawa Community Improvement
Corp., 899 F.2d 474, 477-78 (6th Cir.
1990); Herrington v. County of Sonoma,
834 F.2d 1488, 1500 (9th Cir. 1987);
Karns v. Emerson Electric Co., 817 F.2d
1452, 1456 (10th Cir. 1987); Ebker v. Tan
Jay Int’l, Ltd., 739 F.2d 812, 824 & n.
14 (2d Cir. 1984) (Friendly, J.). The
Eighth and (possibly) Eleventh Circuits
are with us. Mathieu v. Gopher News Co.,
supra, 273 F.3d at 776-77; Redd v. City
of Phenix City, 934 F.2d 1211, 1214 (11th
Cir. 1991).

  The reason for requiring renewal is that
if a motion for judgment as a matter of
law is made at the close of the
plaintiff’s case and denied and not
renewed at the close of the defendant’s
case, the plaintiff may assume that the
denial was the end of the matter, while
if the defendant shows by renewing the
motion that the denial was not the end of
the matter, the plaintiff may ask and may
receive permission from the judge to put
on some additional evidence to show that
there is a jury issue. This
rationalecollapses when, as in this case
but not in our previous cases, the judge
takes the original motion under
advisement; for then the plaintiff knows
at the end of the trial that the question
whether the defendant is entitled to
judgment as a matter of law is a live
one. There is no mousetrapping of the
plaintiff in such a case; neither the
language of Rule 50(b) nor the committee
note suggests that renewal of the motion
is required in that circumstance; and
requiring a party to file a motion before
a previous identical motion has been
ruled on is wasteful. The case law
overwhelmingly denies that failure to
renew in this circumstance is
inexcusable. See, e.g., Taylor Publishing
Co. v. Jostens, Inc., supra, 216 F.3d at
472-73; Singer v. Dungan, supra, 45 F.3d
at 828-29; Lightning Lube, Inc. v. Witco
Corp., supra, 4 F.3d at 1173-74; Ebker v.
Tan Jay Int’l, Ltd., supra, 739 F.2d at
821-24; Borher v. Hanes Corp., 715 F.2d
213, 216-17 (5th Cir. 1983); see also 9
Moore’s Federal Practice sec. 50.40[2]
(3d ed. 1997). We called the Eleventh
Circuit a "possible" outlier because,
while it has strong language about
interpreting the rule strictly ("we are
presented with a particularly clear and
mechanical rule of law; the City did not
comply and the district judge may not
waive [sic] his magic wand dismissing a
procedural requirement as a
technicality," Redd v. City of Phenix
City, supra, 934 F.2d 1211, 1214), it has
not had an occasion to decide whether
there might be an exception for the case
in which the motion filed before the case
went to the jury was taken under
advisement by the judge rather than
denied immediately. To treat the failure
to renew in those circumstances as
inexcusable would ordain redundancy and
create a trap for the unwary, of which
the law contains a sufficient number as
is to keep us entertained. We therefore
do not interpret the Downs lines of cases
to bar the grant of judgment in such a
case.

Affirmed.
