Kamat Damani v. Simer SP, Inc., et al
Filing
Filed Nonprecedential Disposition PER CURIAM. AFFIRMED. Joel M. Flaum, Circuit Judge; Daniel A. Manion, Circuit Judge and Ann Claire Williams, Circuit Judge. [6754574-1] [6754574] [15-1669]
Case: 15-1669
Document: 38
Filed: 06/01/2016
Pages: 3
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 6, 2016*
Decided June 1, 2016
Before
JOEL M. FLAUM, Circuit Judge
DANIEL A. MANION, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 15‐1669
KAMAT M. DAMANI,
Plaintiff‐Appellant,
v.
SIMER SP, INC., et al.,
Defendants‐Appellees.
Appeal from the United States District
Court for the Northern District of Illinois,
Eastern Division.
No. 12 C 9862
Rebecca R. Pallmeyer,
Judge.
O R D E R
Kamat Damani appeals a judgment entered upon a jury verdict for his former
employer, the owners of a Subway franchise, in this suit under the Americans with
Disabilities Act, 42 U.S.C. §§ 12102, 12112. He also challenges the grant of summary
judgment against him on his claim of defamation under Illinois law. We affirm.
* After examining the briefs and record, we have concluded that oral argument is
unnecessary. Thus the appeal is submitted on the briefs and record. See FED. R. APP. P.
34(a)(2)(C).
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Damani sued Simer SP, Inc., Pinakin Patel, and Shilpa Patel, alleging that he was
fired in 2012 from their Subway franchise because of his disability (mental health
issues). He had worked as a food preparer for nearly half a year. He asserted violations
of the Fair Labor Standards Act, see 29 U.S.C. §§ 201–219, the Illinois Wage Payment and
Collection Act, see 820 ILCS 115/1, the Americans with Disabilities Act, see 42 U.S.C.
§§ 12102, 12112, and defamation under Illinois law. According to Damani, the
defendants refused to pay him for excess hours worked as well as bonuses that he was
promised for increasing the franchise’s profits. He adds that he was falsely accused of
stealing $100 from the cash register and that he was told that he was fired because other
workers thought he was disabled and were afraid of his disability. He also says he was
told by two employees that a sign posted in the restaurant stated that he was fired for
stealing.
Shortly before the lawsuit proceeded to trial, he accepted an offer of judgment
under Federal Rule of Civil Procedure 68 for his FLSA and IWPCA claims. Soon
thereafter, the district court granted summary judgment for the defendants on his
defamation claim, explaining that he had offered “no non‐hearsay evidence” that the
sign calling him a thief existed or that the defendants made any defamatory statements.
Damani’s disability discrimination claim proceeded to trial. Damani testified that
he told his manager about his mental health issues at the beginning of his employment,
when he was struggling to complete the online training. The defendants presented
testimony from the manager and two other employees, all who asserted that they never
knew about Damani’s mental health issues. According to one of the employees, Damani
told him that he was taking pain medication for his back but had not hinted at any
mental health issues. These witnesses also disputed Damani’s contention that he was
fired; they said that Damani had quit.
At two points during the trial, the judge allowed the jurors to send her questions
for the witnesses. After Damani’s testimony, the judge received one question asking
about Damani’s diagnosis. She also received a second question seeking clarification of a
lawyer’s reference to another lawsuit. At a sidebar the judge determined that the
question about Damani’s diagnosis was irrelevant—a point on which counsel agreed—
and that the reference to another lawsuit was a miscommunication. The jury returned a
verdict for the defendants. The district court then denied Damani’s subsequent, pro se
motion for a new trial under Federal Rule of Civil Procedure 59.
Damani’s brief on appeal is difficult to parse, but we can discern three
arguments. First he generally challenges the grant of summary judgment on his
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defamation claim. But the district court correctly concluded that Damani offered no
evidence that the defendants made defamatory statements about him. As the court
explained, his statement about his colleagues’ viewing of the sign at Subway that
labeled him a thief was inadmissible hearsay. See Cody v. Harris, 409 F.3d 853, 858–60
(7th Cir. 2005); Haywood v. Lucent Techs., Inc., 323 F.3d 524, 533 (7th Cir. 2003).
Damani also argues that the judge should have answered the two questions
posed by the jurors. The judge properly declined to answer the first question about
Damani’s diagnosis. For any claim under the ADA, medical evidence of a diagnosis is
not required to prove disability. See EEOC v. AutoZone, Inc., 630 F.3d 635, 643–44
(7th Cir. 2010); Fredricksen v. United Parcel Serv., Co., 581 F.3d 516, 521 (7th Cir. 2009). To
show that he was disabled under the “regarded as” prong, Damani needed to prove
that his employer believed he had an impairment that substantially hindered his ability
to work, but the impairment did not actually so limit him. See Miller v. Illinois Dep’t of
Transp., 643 F.3d 190, 195–97 (7th Cir. 2011); Nese v. Julian Nordic Constr. Co., 405 F.3d
638, 642–43 (7th Cir. 2005). For the second question about a previous lawsuit, the judge
did respond that the reference to a prior lawsuit was a miscommunication, and Damani
does not suggest how that response was insufficient.
Finally, Damani asserts that he wanted all of his claims to proceed to trial and
that his recruited lawyers should not have accepted the Rule 68 offer of judgment for
the claims about his unpaid wages. But he waived those arguments by not developing
them and by raising them for the first time only in his reply brief. See Frey v. EPA, 751
F.3d 461, 466 n.2 (7th Cir. 2014); Seitz v. City of Elgin, 719 F.3d 654, 656 n.3 (7th Cir. 2013).
AFFIRMED.
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