In the
United States Court of Appeals
For the Seventh Circuit

No. 99-4294

Arlie Leonberger,

Plaintiff-Appellant,

v.

Martin Marietta Materials, Inc.,

Defendant-Appellee.



Appeal from the United States District Court
for the Southern District of Illinois.
No. 98-CV-4313-JPG--J. Phil Gilbert, Judge.


Argued June 5, 2000--Decided October 26, 2000



  Before Easterbrook, Diane P. Wood, and Evans, Circuit
Judges.

  Diane P. Wood, Circuit Judge. Arlie Leonberger
suffers from sleep apnea, a serious disorder that
causes a person to stop breathing for brief
periods of time while asleep; the oxygen
deprivation that results disrupts the person’s
normal sleep cycle, leaving the individual very
tired and with a tendency to fall asleep during
the day. Beginning in 1967, Leonberger had a job
working in a rock quarry that was eventually
owned by the defendant, Martin Marietta
Materials, Inc. (Martin). Martin became concerned
about Leonberger’s tendency to "nod off" on the
job after it received complaints to that effect.
After efforts to obtain medical treatment failed
(for reasons we detail below), Martin fired him.
Leonberger sued under the Americans with
Disabilities Act ("ADA"), 42 U.S.C. sec.sec.
12101 et seq., but the district court granted
summary judgment for Martin. We agree that
Leonberger has not pointed to any triable issue
of fact and is not entitled to judgment. We
therefore affirm.

I

  The principal job Leonberger performed for
Martin was that of "yard load operator," which
required him to operate heavy machinery used to
load trucks with rock and aggregate for shipment.
On occasion, he also performed certain welding
duties. His direct supervisor was Bill Austin,
who reported to the quarry manager, Mose Frailey.

  At some point, Frailey began to observe
Leonberger sleeping on the job. Leonberger
objected to that characterization of his
behavior, claiming instead that he simply chose
to "nod off" at times when there was nothing to
do because he was waiting for more trucks to
arrive. He told Frailey that he could stay awake
if he kept busy. It was then that Frailey
assigned Leonberger the welding duties, but the
experiment was not successful. A co-worker
reported to Frailey that Leonberger was sleeping
again, this time while on welding duty. Other
complaints about Leonberger’s sleeping also
reached Frailey and Austin.

  In addition to his job at Martin, Leonberger
ran a small fishing business at which he bought
and sold fish. He spent three or four hours a day
there. At other times in his life, Leonberger had
held jobs such as farming, truck driving,
maintenance work, and auto repair.

  Concerned about Leonberger’s persistent "nodding
off," Frailey and Austin went to the fishing
store in September 1997 to discuss the situation
with him. They suggested that he take a leave of
absence so that he could get his sleeping problem
treated, and Frailey volunteered to help him find
an appropriate doctor. Frailey also informed
Leonberger that under Martin’s medical leave
policy, Leonberger would have up to six months of
leave time available to him. Leonberger signed an
acknowledgement form, and on September 15, 1997,
he filled out a written request to take the leave
of absence.

  True to his word, Frailey put Leonberger in
touch with a Dr. Iyer, who began treating
Leonberger’s condition. Dr. Iyer told Leonberger
that one treatment option involved surgery, but
Leonberger refused to consider that. An earlier
effort to use some type of machine to assist in
his night-time breathing had also failed.
Leonberger remained under Dr. Iyer’s care,
nevertheless. After four months of his leave had
gone by, Frailey spoke with him and reminded him
that his medical leave would expire in March
1998. Martin sent him a letter on February 2,
1998, that specified March 5, 1998, as the final
day for his medical benefits. March 5 came and
went, and on March 13, after Leonberger had
failed to return to work with a doctor’s release,
Martin terminated him. Also on March 13, Martin
received a note from Dr. Iyer stating that
Leonberger had a "significant sleep problem" that
had "not improved with treatment," and that the
problem was "interfering with his ability to
work."

II

  Originally, Leonberger’s complaint alleged only
that Martin had failed to accommodate his
disability, in violation of the ADA. After Martin
filed a motion for summary judgment on that
theory, the district court granted Leonberger
permission to amend his complaint. The amended
complaint abandoned the accommodation claim and
substituted a claim that Martin had discriminated
against him by terminating him because of his
disability. He also tried to argue, through his
materials on Martin’s new summary judgment motion
directed to the discrimination claim, that Martin
had discriminated against him by "forcing" him to
take the medical leave. On appeal he has fleshed
out that theory as well. This latter theory seems
to be a sort of constructive discharge notion: by
compelling Leonberger to go on medical leave,
Martin ensured his eventual discharge.
(Presumably this theory also entails the claim
that Martin knew that the doctor would be
unsuccessful at curing the sleep apnea, and thus
had simply set Leonberger up for a negative
medical note at the end of the leave.)

  The parties have sparred over the question
whether Leonberger’s alternative theory of
constructive discharge was properly before the
district court and thus properly before us.
Martin urges that it is not, while Leonberger
points out that it was, if nothing else,
litigated by consent because he addressed it
fully in his response to the motion for summary
judgment, and Martin presented its arguments on
this point in its reply. The mere fact that
Leonberger had not spelled out this aspect of his
termination theory in the pleadings did not
preclude him from supporting his discharge theory
with this evidence at the summary judgment stage.
We therefore consider both aspects of his
argument here.

  On the merits, the only disputed issue was
whether Leonberger could show that he was a
qualified individual with a disability, as that
concept is defined in 42 U.S.C. sec. 12102(2).
Because the parties were proceeding under the
burden-shifting method of proof established in
McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973), this point logically might have been
considered at the prima facie case stage, element
one of which requires the plaintiff to show that
he is in the protected class. Perhaps in an
effort to avoid a protracted dispute over the
question whether Leonberger’s qualifications had
to be assessed without considering his sleep
disorder, or perhaps because it was just more
straightforward, the district court chose to
assume that Leonberger had satisfied the prima
facie case and it asked instead whether
Leonberger had any evidence to show that Martin’s
asserted reason for firing him was a pretext.

  Martin said that it fired Leonberger because
(1) he failed to report to work before the
expiration of his medical leave with a doctor’s
release, and (2) he failed to request an
extension of his leave time before the first
period expired. Leonberger presented some
evidence that might have rebutted the second
reason, since there was nothing in the medical
benefits plan that indicated that extensions were
possible. But he offered nothing to counter the
first point, and we frankly find it hard to
imagine what he could have said. Looking either
at the moment when Martin placed him on the leave
of absence or the moment when it fired him, it is
undisputed that Leonberger had been observed
either "sleeping" or "nodding off" on the job,
including while the front loader was in
operation. Martin took the position that it did
not want to incur the risks posed by having a
sleepy employee operate such a large and
potentially dangerous piece of equipment. We
often say that we do not, and cannot, impose our
own ideas of prudent business management on
employers; we can assess only the question
whether an employer has taken an action for a
forbidden reason. See e.g., Robin v. ESPO Eng’g
Corp., 200 F.3d 1081, 1091 (7th Cir. 2000). But
Martin hardly needs the benefit of that rule,
since an employee who is less than fully alert
could harm himself and others if he is operating
a front loader, or many other kinds of heavy
industrial equipment.

  We add for the sake of completeness that
Leonberger himself testified that he chose to nod
off, in an effort to refute the idea that his
sleeping disorder was causing him to do so. But
it is hard to see how that claim advances his
case. Martin had no reason to care why Leonberger
was sleeping; it just didn’t want people who were
groggy for any reason operating its machines. If
anything, this tends to reinforce Martin’s
position that its action was a response to
Leonberger’s performance of the job and was not
a product of discriminatory animus.

 The judgment of the district court is Affirmed.
