Peters, Robert v. City of Mauston ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-1178
ROBERT PETERS,
Plaintiff-Appellant,
v.
CITY OF MAUSTON,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 01-C-247-C—Barbara B. Crabb, Chief Judge.
____________
ARGUED SEPTEMBER 18, 2002—DECIDED NOVEMBER 20, 2002
____________
Before BAUER, MANION, and ROVNER, Circuit Judges.
BAUER, Circuit Judge. Plaintiff Robert Peters (“Peters”)
brought an action for disability discrimination pursuant
to the Rehabilitation Act of 1973 against his employer,
the City of Mauston, Wisconsin (“the City”), when the City
terminated Peters after he suffered a work-related injury.
Assuming, solely for the purpose of summary judgment,
that the City regarded Peters as disabled, the district court
granted summary judgment in favor of the City. Specifi-
cally, the court found that Peters’ requested accommoda-
tion was unreasonable because it eliminated an essential
function of his job as an Operator. Peters appeals the dis-
trict court’s determination that heavy lifting was an essen-
tial function of his job as well as the district court’s find-
2 No. 02-1178
ing that his proposed accommodation was unreasonable.
We affirm.
BACKGROUND
A. Peters’ Employment History with the City
Peters began his employment with the City of Mauston,
Wisconsin, in March 1968 upon his graduation from high
school. He worked for the City for approximately nine
years before he quit to work in construction. Peters then
returned to his employment with the City as an Operator
in 1978 and remained in that position until his termination
on March 15, 1995.
The City has two job classifications relevant to Peters’
case: Operator and Laborer. As an Operator, Peters’ duties
included using various construction equipment as well as
being able to perform all duties assigned to Laborers. A
Laborer performs a wide range of construction tasks, in-
cluding the lifting of heavy objects. Laborers, however, are
not authorized to use the construction equipment, as oper-
ation of the equipment is left solely to the Operators, who
are generally in charge on the worksite. According to the
City, the job of an Operator is relatively unpredictable and
includes such duties as: excavating trenches for replace-
ment or repair of existing water, wastewater, and storm
water mains and laterals; removing snow and ice accu-
mulations from streets and sidewalks; trimming trees and
cutting brush; and performing maintenance on equipment.
During the three years prior to his termination Peters
suffered two work-related injuries to his shoulders. The
first injury occurred to his right shoulder in 1992, and
after surgery in August 1992, he returned to work in the
late fall of 1993. In early 1994, Peters injured his left
shoulder when he was thrown against the windshield
of his truck while plowing snow. He underwent surgery
No. 02-1178 3
for this injury as well and missed work from June 1994
through March 1995, when he was terminated.
While Dr. Thomas G. Hoeft provided Peters’ medical care
following his second injury, the City’s workers’ compensa-
tion insurer sent Peters to Dr. Ronald C. Rudy for an
independent medical evaluation on September 1, 1994.
Dr. Rudy’s report indicated that Peters could return to
work after one month and with no restrictions follow-
ing Peters’ completion of physical therapy. On October 6,
1994, however, Dr. Hoeft recommended that Peters re-
turn to light duty with restrictions prohibiting Peters from
lifting over thirty pounds, repetitive shoveling, and over-
head use of the left hand.
On November 17, 1994, Peters met with his supervisor,
Patrick Giesendorfer, the Director of Public Works, to dis-
cuss his ability to return to work and the conflicting doc-
tors’ reports. Giesendorfer informed Peters that he needed
to secure a release from Dr. Hoeft because Dr. Hoeft was
Peters’ personal physician and had indicated that Peters
still had some work restrictions. Peters told Giesendorfer
that he had been working hard during his time off by
painting three rooms and varnishing the floors in his
house, cleaning out his garage, and building deer stands.
On November 21, 1994, Devin Willi, the City Administra-
tor, wrote to both Peters and Dr. Hoeft requesting that
Peters undergo a functional capacity evaluation, which
would determine Peters’ work capabilities and restrictions,
and that Peters secure a work release from Dr. Hoeft. Dr.
Hoeft did not respond to Willi’s letter of November 21. On
both December 28, 1994, and February 20, 1995, Willi again
wrote to Dr. Hoeft seeking confirmation of Peters’ status
and the scheduled functional capacity evaluation. Dr. Hoeft
did not immediately reply to either request. On February,
21, 1995, Willi wrote to Peters and informed him that it
was his (Peters’) responsibility to secure the report and
release from Dr. Hoeft.
4 No. 02-1178
Dr. Hoeft finally forwarded the results of Peters’ func-
tional capacity evaluation to Willi on February 22, 1995.
The report indicated that during an eight-hour work day,
Peters could work with the following restrictions: 1) that he
could never lift or carry anything in excess of fifty pounds;
2) that he could occasionally (11-30% of the day) lift or carry
between twenty-one and fifty pounds; 3) that he could fre-
quently (31-70% of the day) lift or carry between eleven
and twenty pounds; 4) that he could continuously (71-100%
of the day) lift or carry between one and ten pounds; and 5)
that he could occasionally (11-30% of the day) shovel. Dr.
Hoeft also determined that during an eight-hour work day
Peters could use his left arm and shoulder continuously for
only two hours and for no more than six hours total. The
report indicated that these restrictions were permanent
and that Peters fell into a “medium demand” job classifica-
tion. Finally, Dr. Hoeft stated that if Peters “were likely
to have additional demands placed on him, and in an
unpredictable way, he might be better served by seeking
a different occupation.”
On February 28, 1995, Willi and Giesendorfer discussed
the report with Peters. At this meeting, Peters expressed
his interest in returning to work as well as his concern
about performing some of the job’s functions. Willi then
took Dr. Hoeft’s report and a summary of the February 28
meeting to the City’s Personnel Committee, which directed
Willi to meet with Peters again and discuss every element
of Peters’ job description to determine Peters’ view on
performing each task, including any accommodations that
could be made.
Pursuant to this direction, Peters, Willi, and Giesendorfer
met again on March 13, 1995. At this meeting Willi went
through the job descriptions for Operators and Laborers
line by line and asked Peters whether there were any
accommodations that could be made to help him perform
his job. Peters responded by saying either that he could
No. 02-1178 5
do the work and saw no problem, or that he was uncertain
and would only know if he tried to do the work. Peters
apparently had trouble understanding the concept of ac-
commodation and was not aware that Dr. Hoeft listed
his work restrictions as permanent. When asked specifi-
cally about those restrictions, Peters said he thought his
shoulder would get better over time, but that if the lifting
required by the job became too heavy, someone would
probably have to help him. According to Peters, he tried
to indicate that he wanted to “try and see” whether he
could do the job by returning to work.
Willi reported the results of the meeting to the City’s
Common Council on March 14, 1995. The Council re-
viewed Dr. Hoeft’s functional capacity report, Willi’s re-
port of the interview with Peters on March 13, and the
list of duties for Peters’ job. The Council determined that
Peters could not “safely, reasonably, and effectively” per-
form the duties of an Operator in light of the permanent
lifting restrictions placed upon Peters by his doctor. The
Council based this decision upon its assessment that
Peters’ job required lifting, carrying, and extensive use of
his shoulder.
Following that meeting, Willi informed Peters that the
City decided to terminate his employment on March 15,
1995. Because there were no other vacancies in the City
at that time, the Council did not consider whether Peters
could perform any other job within the City. The Council,
likewise, did not consider whether Peters could perform
any type of job outside of the City and did not discuss
with him his ability to find work elsewhere. Peters, how-
ever, indicated that he did not feel physically limited by
his shoulder and believed that he could do the work.
After his termination, Peters found various jobs in con-
struction and as a truck driver. This work required him to
do heavy lifting and carrying, all of which he was able
6 No. 02-1178
to complete without limitation. Interestingly, on Febru-
ary 13, 1996, Dr. Hoeft revised Peters’ functional capacity
evaluation and lifted the permanent lifting restrictions
entirely. Peters claims that Dr. Hoeft never actually eval-
uated him for the initial functional capacity evaluation
but relied only upon the reports of nonphysician staff
to form his conclusions.
Peters eventually filed a grievance over his termination,
which was heard on August 6, 1998. On March 7, 2000, an
arbitrator found that the City lacked “just cause” under
its collective bargaining agreement for terminating Peters.
The arbitrator reinstated Peters to his job as an Operator
with the City but did not award back pay. In deciding not
to award back pay, the arbitrator noted that it was
Peters’ own doctor who imposed the erroneous lifting re-
strictions and that, as a result, Peters must bear the
wage loss. Peters resumed his job as an Operator shortly
after the arbitrator issued his decision and, as far as the
record reflects, has since performed the job satisfactorily.
B. The District Court’s Grant of Summary Judg-
ment for the City
On March 8, 2001, Peters initiated the instant case
against the City in state court under the Rehabilitation
Act of 1973 (“Rehab Act”), 29 U.S.C. § 794(a), in order to
recover back pay. The Rehab Act prohibits a federal
grant recipient from discriminating against a “qualified
individual with a disability” solely by reason of his or her
disability. Peters initially alleged that the City failed to
reasonably accommodate him prior to terminating his
employment and that the City discriminated against him
in terminating his employment. The City removed the case
to federal court on September 27, 2001, and filed a mo-
tion for summary judgment.
No. 02-1178 7
In its motion, the City argued that Peters was not
disabled as defined under the Rehab Act, that it did not
fail to reasonably accommodate Peters, and that it did
not discriminate against Peters when it terminated his
employment. Peters responded that he had a “record of” a
disability and that the City “regarded him as disabled” in
the major life activities of lifting and working, and he
again argued that the City discriminated against him by
failing to reasonably accommodate him and by terminat-
ing his employment. The district court, however, found
that Peters failed to advance any supporting argument
on the latter discrimination argument and did not ad-
dress that claim.
The district court granted the City’s motion for sum-
mary judgment on December 20, 2001, holding that Peters
was not actually disabled and that he did not have a rec-
ord of a disability. The court assumed, solely for the pur-
pose of summary judgment, that the City may have re-
garded Peters as disabled because Peters’ supervisor may
have known of his condition and may have believed that
it affected his ability to work in general. Thus, the court
treated Peters as though he fell within the scope of the
Rehab Act.
In granting summary judgment for the City, the district
court held that heavy lifting constituted an essential
function of an Operator’s job and that Peters did not
request a reasonable accommodation when he said that
others may have to help him lift heavy objects. The court
did not discuss whether Peters’ proposed “try and see”
accommodation would be reasonable, whereby Peters
would try to do his job without exceeding his lifting re-
strictions or receiving help from others. The district court
entered summary judgment in favor of the City on De-
cember 21, 2001, and Peters timely filed this appeal.
8 No. 02-1178
ANALYSIS
A. Standard of Review
We review the district court’s grant of summary judg-
ment de novo drawing all reasonable inferences in favor
of the nonmoving party. Bombard v. Fort Wayne Newspa-
pers, Inc., 92 F.3d 560, 562 (7th Cir. 1996). In deciding an
appeal, this Court may affirm the grant of summary
judgment on grounds different from that of the district
court. The alternative grounds, however, must have ade-
quate support in the record and the law. Id.
B. Whether Peters Was “Disabled” Under the Reha-
bilitation Act
The Rehabilitation Act of 1973 protects a “qualified
individual with a disability” from discrimination solely
because of the person’s disability by any program receiv-
ing federal financial assistance. 29 U.S.C. § 794(a) (2002).
The Rehab Act defines an “individual with a disability” as
one who: 1) has a physical or mental impairment that
substantially limits one or more major life activities; 2)
has a record of such an impairment; or 3) is regarded as
having such an impairment by the person’s employer. 29
U.S.C. § 705(20)(B) (2002). This Court looks to the stan-
dards applied under the Americans with Disabilities Act
of 1990 (ADA), 42 U.S.C. § 12111 et seq., to determine
whether a violation of the Rehab Act occurs in the em-
ployment context. 29 U.S.C. § 794(d); Vande Zande v.
State of Wis. Dept. of Admin., 44 F.3d 538, 542 (7th Cir.
1995). Under the ADA, a “qualified individual with a
disability” is one who, with or without reasonable accom-
modation, can perform the essential functions of the job.
42 U.S.C. § 12111(8) (2002).
In order to determine whether Peters falls within the
statutory meaning of “disabled,” we begin by noting that
No. 02-1178 9
Peters concedes that he did not suffer from an actual
physical or mental impairment that substantially lim-
ited a major life activity and that he did not have a “rec-
ord of” such a disability. So, the issue before this Court
is whether the City regarded him as disabled under
§ 705(20)(B)(3).
Under the “regarded as” prong, a plaintiff may prove
he is disabled by showing that either: 1) the employer
mistakenly believes the employee has a physical impair-
ment that substantially limits a major life activity; or 2)
the employer mistakenly believes that an actual, non-lim-
iting impairment substantially limits a major life activ-
ity. Amadio v. Ford Motor Co., 238 F.3d 919, 925 (7th
Cir. 2001) (citing Sutton v. United Air Lines, Inc., 527 U.S.
471, 489 (1999)); see also 29 C.F.R. § 1630.2(l). In other
words, the employer “must believe either that one has
a substantially limiting impairment that one does not
have or that one has a substantially limiting impairment
when, in fact, the impairment is not so limiting.” Sutton v.
United Air Lines, Inc., 527 U.S. 471, 489 (1999); see also
Moore v. J.B. Hunt Transp., Inc., 221 F.3d 944, 954 (7th
Cir. 2000).
Though Peters initially argued that the City regarded
him as substantially limited in the major life activities of
lifting and working, he abandoned the lifting argument
at oral argument before this Court. Thus, he now argues
only that the City regarded him as disabled in the major
life activity of working. To be sure, working constitutes
a major life activity under the ADA and the Rehab Act.
Amadio, 238 F.3d at 925; Moore, 221 F.3d at 953. Thus,
the question is whether Peters demonstrated that the
City believed his shoulder injury substantially limited his
ability to work in general.
To be substantially limited in general, a person must
be “either unable to perform a major life function, or [be]
10 No. 02-1178
significantly restricted in the duration, manner, or condi-
tion under which the [person] can perform a particular
major life activity, as compared to the average person in
the general population.” Contreras v. Suncast Corp., 237
F.3d 756, 762 (7th Cir. 2001). With respect to working, the
person must be significantly restricted in the ability to
perform a class or broad range of jobs. The determination
of whether or not one is substantially limited in working
is an individualized one, and we will consider the num-
ber and type of jobs from which a person is disqualified,
the geographical area to which the person has reasonable
access, and the individual’s job expectations and train-
ing. Moore, 221 F.3d at 953.
It is clear, however, that an employer does not regard
a person as disabled simply by finding that the person
cannot perform a particular job. Byrne v. Bd. of Educ.,
Sch. Of West Allis–West Milwaukee, 979 F.2d 560, 567 (7th
Cir. 1992). Likewise, we previously declined to hold that
a perception of disability arises solely from the employ-
er’s termination of the plaintiff because an impairment
prohibits the employee from performing the job according
to the employer’s standards. Moore, 221 F.3d at 954. A
terminated employee must present some evidence “ ‘of
general employment demographics and/or of recognized
occupational classifications that indicate the approximate
number of jobs . . . from which an individual would be
excluded because of an impairment.’ ” EEOC v. Rockwell
Int’l Corp., 243 F.3d 1012, 1017 (7th Cir. 2001).
Though this Court declined in EEOC v. Rockwell Inter-
national Corp. to adopt a per se rule that a plaintiff can-
not prevail without qualitative evidence of the local job
market, we still require that at least some such evidence
be presented. Davidson v. Midelfort Clinic, Ltd., 133 F.3d
499, 507 (7th Cir. 1998) (“This is not an onerous require-
ment, but it does require at least some evidence from
which one might infer that [the plaintiff] faced ‘significant
No. 02-1178 11
restrictions’ in [his] ability to meet the requirements of
other jobs”); see also Rockwell Int’l, 243 F.3d at 1018.
We have already held that a person is not disabled
where the plaintiff’s evidence that he was substantially
limited in working consisted of a physician-imposed forty-
five pound lifting restriction and a prohibition against
“strenuous work” or driving a forklift for more than four
hours a day. Contreras, 237 F.3d at 763. The Contreras
Court noted that such evidence did not “even [hint] at
the notion that [the plaintiff] is precluded from a broad
class of jobs.” Id.
In the case at bar, Peters in no way presented evidence
that he was substantially limited in his ability to work
or that the City regarded him as such. In fact, Peters
fully demonstrated that he was still able to work. First,
Peters continually told City officials that he did not feel
limited by his shoulder. He informed his supervisor, Pat-
rick Giesendorfer, that he painted three rooms and var-
nished the floors in his house, cleaned out his garage, and
built deer stands during his time off from June 1994
through March 1995.
Second, Peters only presented evidence of his physician-
imposed restrictions, which are hardly distinguishable
from those in Contreras. To begin, Peters’ physician im-
posed a fifty pound lifting prohibition, and Contreras’ doc-
tor imposed a forty-five pound prohibition. Dr. Hoeft cate-
gorized Peters’ ability to lift various weights throughout
the day, whereas Contreras’ physician prohibited him
from engaging in “strenuous work.” Based on Peters’ per-
manent restrictions, it is apparent that for most of the
working day Peters could not engage in strenuous lifting.
At most, he could shovel or carry between twenty-one
and fifty pounds for only thirty percent of the day, and
he could carry between eleven and twenty pounds for a
maximum of seventy percent of the day. Furthermore,
12 No. 02-1178
Peters’ permanent restrictions limited the use of his left
arm and shoulder to a total of six hours in an eight-hour
work day.
Peters argues that Dr. Hoeft’s report, upon which the City
relied, classified him in a “medium demand” job category
and that this classification is evidence that he was pre-
cluded from all “heavy demand” labor jobs. Peters, how-
ever, provides no evidence to distinguish between so-called
medium and heavy demand labor jobs. He simply as-
serts that the Operator’s position is a heavy demand job
and, therefore, that Dr. Hoeft’s evaluation precluded him
from it and similar jobs. Peters, however, did not indicate
what those similar jobs might be. Without supporting
evidence, we do not find Peters’ argument persuasive.
The City also demonstrated that it never considered
whether Peters was able to complete another job within
the City because there were none vacant at the time it
terminated him. Likewise, the City’s Common Council
never considered whether Peters could perform another
job outside of the City. The City relied upon Peters’ own
physician-imposed, permanent restrictions in evaluating
whether he could safely perform the job of an Operator
and concluded that he could not. While Dr. Hoeft ulti-
mately lifted those restrictions, at the time the City con-
sidered Peters’ ability to do the job those lifting restric-
tions were classified as permanent. We cannot say that
the City regarded Peters as substantially limited in his
ability to work when it knew of his work during June
1994 through March 1995 and never considered his fit-
ness for a job other than that of Operator.
Finally, Peters demonstrated to this Court that he was
clearly capable of working after being terminated by the
City. In fact, Peters found various jobs in construction and
as a truck driver following his termination. This work
required heavy lifting and carrying, all of which he was
able to complete without limitation.
No. 02-1178 13
While the district court assumed for summary judgment
purposes that the City may have regarded Peters as dis-
abled, we hold that Peters does not fall within the mean-
ing of “disabled” under the Rehab Act because he was
not substantially limited in the major life activity of
working despite his shoulder injury. The City did not re-
gard Peters as disabled, and the district court correctly
entered summary judgment in favor of the City.
C. Whether Peters Was a “Qualified Individual
With a Disability”
Even if we were to assume, as the district court did
in awarding summary judgment, that the City regarded
Peters as disabled, Peters’ still does not fit the statutory
definition of a “qualified individual with a disability.”
42 U.S.C. § 12111(8). The first step in determining wheth-
er Peters was a “qualified individual with a disability” re-
quires this Court to determine whether Peters satisfies the
prerequisites of the job, in terms of skills or experience.
If he does, then we must determine whether he can per-
form the essential functions of the job with or without a
reasonable accommodation. Bombard, 92 F.3d at 563. The
City does not argue that Peters was unqualified for the job.
So, the only issue is whether Peters can perform the es-
sential functions of the Operator’s job with or without a
reasonable accommodation.
Peters first argues that the district court improperly
held that the heavy lifting from which Dr. Hoeft restricted
him is an essential function of the Operator’s job. The
City, not surprisingly, asserts that such lifting is an es-
sential function because the Operator must be able to
perform all of the daily operational and construction tasks
assigned to Laborers, which include all kinds of lifting
and carrying. Because we do not second-guess the employ-
er’s judgment as to the essential functions, we affirm the
14 No. 02-1178
district court’s determination that lifting, heavy or other-
wise, is an essential function of the Operator’s job. DePaoli
v. Abbott Labs., 140 F.3d 668, 674 (7th Cir. 1998). Even
Peters admits that heavy lifting is required at times, and
his argument that such lifting is infrequent does not
preclude it from being an essential function of the job.
See Basith v. Cook County, 241 F.3d 919, 929 (7th Cir.
2001) (“an essential function need not encompass the
majority of an employee’s time, or even a significant
quantity of time, to be essential”).
We now turn to Peters’ requested accommodations. Peters
requested two possible accommodations, neither of which
this Court finds reasonable. Peters first requested that
someone else do the heaviest lifting for him if he could
not handle it, which the district court found unreasonable.
We agree and hold that such a request is unreasonable
because it requires another person to perform an essential
function of Peters’ job. See Hansen v. Henderson, 233 F.3d
521, 523-24 (7th Cir. 2000) (stating that an employer
need not create a new job or provide a helper as an ac-
commodation to a disabled employee); Sieberns v. Wal-
Mart Stores, Inc., 125 F.3d 1019, 1022 (7th Cir. 1997) (“to
accommodate him [the employer] would have to hire
someone else to help perform some duties. That clearly
was beyond a reasonable accommodation.”); Cochrum v. Old
Ben Coal Co., 102 F.3d 908, 912 (7th Cir. 1996) (“hiring
a helper to perform the overhead work would mean the
helper would de facto perform [the] job. We cannot agree
that [an employee] would be performing the essential
functions of his job with a helper.”).
Second, though the district court did not address this
issue, we hold that Peters’ proposed “try and see” request
is also unreasonable. Allowing the employee to return
to work to see if he can complete the job is the wrong
test as to whether an accommodation is reasonable. See
Koshinski v. Decatur Foundry, Inc., 177 F.3d 599, 603 (7th
No. 02-1178 15
Cir. 1999). The employer is not obligated to allow the
employee to try the job out in order to determine whether
some yet-to-be requested accommodation may be needed.
While the law gives the disabled employee the right to
perform the job without a reasonable accommodation, the
City determined that Peters could not safely perform the
tasks assigned to an Operator because of his permanent,
physician-imposed lifting restrictions. Given the permanent
nature of those lifting restrictions at that time, we cannot
say that Peters would have been able to complete the job
without a reasonable accommodation. Absent any other
reasonable request for an accommodation, the City need
not incur additional liability to “try and see” whether
Peters can handle the job despite his permanent lifting
restrictions.
Accordingly, we hold that Peters failed to request
any reasonable accommodation and he does not meet
the statutory definition of a “qualified individual with a
disability.” Summary judgment in favor of the City is
appropriate, and we AFFIRM the district court’s decision.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-20-02