Hirmiz v. New Harrison Hotel Corp., No. 16-3915 (7th Cir. 2017)

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Hirmiz, a Travelodge Hotel front‐desk clerk, was fired after being caught on video sleeping in the lobby while a fight broke out among guests. He sued under the Americans with Disabilities Act, 42 U.S.C. 12101, claiming that his employer had failed to accommodate a condition caused by long‐term exposure to high levels of electromagnetic voltage at the hotel; had discriminated against him because of his disorder; and had fired him in retaliation for his having complained about the hotel’s voltage levels to OSHA. OSHA found the electromagnetic voltage levels to be normal. The Seventh Circuit affirmed summary judgment in favor of the hotel. Hirmiz failed to present evidence that he is disabled for purposes of the ADA, that he engaged in any protected activity before his termination, or that his OSHA complaint played any role in his termination. The court noted debate in the medical community over whether sensitivity to electromagnetic voltage is a physical disorder or a psychological one and that Hirmiz did not try to prove that he has a “record” of an impairment or that he was “regarded as having” one by his employer. Hirmiz neither sought an accommodation, nor filed his EEOC discrimination charge before he was fired.

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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 16 3915 GEORGE D. HIRMIZ, Plaintiff Appellant, v. NEW HARRISON HOTEL CORP., d/b/a TRAVELODGE HOTEL CHICAGO, Defendant Appellee. ____________________ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 15 C 6874 — Amy J. St. Eve, Judge. ____________________ SUBMITTED MARCH 27, 2017— DECIDED APRIL 6, 2017 ____________________ Before POSNER, SYKES, and HAMILTON, Circuit Judges. POSNER, Circuit Judge. George Hirmiz, a front desk clerk at a Travelodge Hotel, was fired after being caught on video sleeping in the hotel lobby while a fight broke out among several guests. He sued the hotel under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., claiming that his employer had failed to accommodate a malady that he had 2 No. 16 3915 contracted as a result of long term exposure to high levels of electromagnetic voltage at the hotel; had discriminated against him because of his disorder; and finally had fired him in retaliation for his having complained about the ho tel’s voltage levels to the Occupational Safety and Health Administration. The district court granted summary judg ment in favor of the hotel on the ground that Hirmiz had failed to present evidence that he is disabled within the meaning of the Americans with Disabilities Act, that he’d engaged in any protected activity before his termination (an essential element of his ADA retaliation claim), or that the complaint he’d filed with OSHA had played any role in his termination. There is debate in the medical community over whether sensitivity to electromagnetic voltage is a physical disorder or a psychological one. See, e.g., Caitlin Dewey, “Are ‘WiFi Allergies’ a Real Thing? A Quick Guide to Electromagnetic Hypersensitivity,” Washington Post (Aug. 31, 2015), www. washingtonpost.com/news/the intersect/wp/2015/08/31/are wifi allergies a real thing a quick guide to electromagnetic hypersensitivity. If it is psychological, the symptoms might not constitute a disorder that would entitle Hirmiz to the protections of the Americans with Disabilities Act. A great deal of psychological distress is trivial—fear of black cats, for example. And indeed the district court found that Hirmiz had provided no evidence—medical or otherwise—that he suffers from any “impairment” that “substantially limits” any of his “major life activities,” as required to prove the ex istence of a disability under the Americans with Disabilities Act. 42 U.S.C. § 12102(1)–(2); Carothers v. County of Cook, 808 F.3d 1140, 1147–48 (7th Cir. 2015). Nor did he even try to prove that he fits either of the other definitions of “disabil No. 16 3915 3 ity” in the ADA—that he has a “record” of such an impair ment or that he was “regarded as having” one by his em ployer. See 42 U.S.C. § 12102(1). As for his claim that his discharge was retaliatory, the district judge found that he’d engaged in no activity shield ed from employer discipline by the ADA. Although the stat ute protects employees who suffer retaliation after seeking an accommodation by their employer, or filing a complaint of discrimination on account of a disability, Preddie v. Bar tholomew Consolidated School Corp., 799 F.3d 806, 814–15 (7th Cir. 2015), Hirmiz had neither sought an accommodation, nor filed his discrimination charge with the EEOC, until af ter he was fired. Nor had he shown any causal link between his OSHA complaint and his termination—and furthermore OSHA had found the hotel’s electromagnetic voltage levels to be normal and the hotel had provided valid reasons, unre lated to Hirmiz’s alleged disability, for firing him (such as sleeping on the job). See Reid v. Neighborhood Assistance Corp. of America, 749 F.3d 581, 586–90 (7th Cir. 2014). He has tried to give us new evidence regarding his medi cal condition, including disciplinary records in his personnel file that he complains are false and communications with agencies or persons (including the FBI, the Illinois Depart ment of Human Rights, and the Governor of Illinois) which or whom he claims he contacted about his complaints against the hotel. No luck; new evidence may not be pre sented on appeal. Packer v. Trustees of Indiana University School of Medicine, 800 F.3d 843, 849 (7th Cir. 2015). The judgment of the district court is AFFIRMED.

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