Kupstas, Rodney v. City of Greenwood ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-2081
RODNEY KUPSTAS,
Plaintiff-Appellant,
v.
CITY OF GREENWOOD,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 02 C 1163—Richard L. Young, Judge.
____________
ARGUED DECEMBER 3, 2004—DECIDED FEBRUARY 15, 2005
____________
Before FLAUM, Chief Judge, and EASTERBROOK and
WILLIAMS, Circuit Judges.
FLAUM, Chief Judge. Plaintiff-appellant Rodney Kupstas
filed suit alleging that defendant-appellee City of Green-
wood violated the Americans with Disabilities Act (“ADA”),
42 U.S.C. § 12101 et seq., in terminating his employment.
Following the district court’s grant of summary judgment in
favor of Greenwood, Kupstas appealed. For the reasons
stated herein, we affirm.
I. Background
In 1992, Greenwood hired Kupstas to be a “truck driver/
laborer” in its street department. According to the city’s
“Position Description,” truck driver/laborers must be able to
2 No. 04-2081
perform a wide rage of duties, including: operating various
trucks, equipment, and hand tools in maintaining city
streets and clearing them of snow and debris; hauling and
spreading road materials; and periodically repairing streets
and alleys, including shoveling and spreading road patching
materials. In addition, the position requires the “ability to
physically perform assigned duties including . . . stand-
ing/walking for long periods, lifting/carrying objects weigh-
ing over 50 pounds, shoveling, [and] raking.” During Green-
wood’s heavy leaf season, which typically lasts from mid-
October through mid-December, crews of truck
driver/laborers collect leaves that residents have raked from
their yards. Crew members drive a truck from house to
house, rake the piles of leaves toward the truck, and use a
suction device to draw the leaves into the truck.
After seven years on the job, Kupstas injured his back.
Although he was able to continue working on temporary
light duty, his condition did not improve, and in June 2000,
he underwent outpatient surgery for a herniated disc.
Following the surgery, he remained on light duty until his
doctor released him for full duty in October 2000.
In early 2001, Kupstas complained to his family doctor,
Dr. Qualls, about continuing back pain. On May 25, 2001,
Dr. Qualls wrote a letter stating that Kupstas should
not shovel or rake, and should not lift more than 40 pounds,
describing these restrictions as “permanent.” Kupstas gave
this letter to Greenwood Street Superintendent Greg Owens
who assigned Kupstas to tasks that allowed him to follow
Dr. Qualls’s restrictions. On August 9, 2001, at the direction
of Owens and Human Resources Director Carolyn Gaier,
Kupstas saw the city’s doctor, Dr. Poplin, who told Kupstas
that he should either go back to his doctor and have the
restrictions lifted or find another job. Dr. Poplin told Gaier
that Dr. Qualls’s restrictions were not appropriate but that
he could not remove the restrictions ordered by another
doctor. During subsequent meetings with Owens and Gaier,
No. 04-2081 3
Kupstas said that he could not think of anything that the
city could do to accommodate his restrictions. Owens and
Gaier made it clear to Kupstas that his job was in jeopardy.
Shortly after seeing Dr. Poplin, Kupstas returned to Dr.
Qualls for a reevaluation. On August 18, 2001, Dr. Qualls
sent a letter to the city, stating: “[Kupstas] is to remain on a
55-60 pound lifting restriction for the foreseeable future. He
is also limited to no more than 2 hours of continuous
shoveling or raking and no more than 4 hours of shoveling
or raking per day.” Thereafter, Gaier and Owens concluded
that, although Kupstas could lift the required weight for the
truck driver/laborer position, the raking restriction disqual-
ified him. On her own initiative, Gaier contacted other city
departments to ask about possible positions for Kupstas.
After finding none for which he was qualified, Owens and
Gaier terminated Kupstas’s employment on August 21,
2001, before the start of leaf season. Kupstas filed this suit,
alleging that Greenwood had violated the ADA. He now
appeals the district court’s grant of the city’s motion for
summary judgment.
II. Discussion
Summary judgment is appropriate if the evidence pre-
sented by the parties “show[s] that there is no genuine issue
as to any material fact and the moving party is entitled to
a judgment as a matter of law.” Fed. R. Civ. P. 56(c). We
review de novo a district court’s grant of summary judg-
ment, drawing all reasonable inferences in favor of the
nonmoving party. Peters v. City of Mauston, 311 F.3d 835,
842 (7th Cir. 2002).
Kupstas alleges that Greenwood discharged him in
violation of the ADA, under which “[n]o covered entity shall
discriminate against a qualified individual with a disability
4 No. 04-2081
because of the disability.” 42 U.S.C. § 12112(a). The Act
defines a “qualified individual with a disability” as “an
individual with a disability who, with or without reasonable
accommodation, can perform the essential functions of the
employment position that such individual holds or desires.”
§ 12111(8). A plaintiff seeking to avoid summary judgment
must demonstrate that there is at least a genuine issue of
material fact as to whether he is disabled, whether he can
perform the essential functions of the position, and whether
he has suffered an adverse employment action because of
his disability. Dyke v. O’Neal Steel, Inc., 327 F.3d 628, 631
(7th Cir. 2003).
Neither party disputes that the termination of Kupstas’s
employment was an adverse employment action. In grant-
ing Greenwood’s motion for summary judgment, the district
court held that an issue of fact remained regarding whether
Kupstas was disabled under the ADA, but that Kupstas
could not show that he was able to perform the essential
functions of the truck driver/laborer position. We disagree
with the district court as to the first issue and find that the
evidence presented cannot support the conclusion that
Kupstas was disabled under the Act. Therefore, we need not
reach the second issue regarding Kupstas’s ability to
perform the essential functions of the job. See Peters, 311
F.3d at 842 (“In deciding an appeal, this Court may affirm
the grant of summary judgment on grounds different from
that of the district court” if the grounds “have adequate
support in the record and the law.”).
The ADA provides the following definition of “disability”:
(A) a physical or mental impairment that substantially
limits one or more of the major life activities of [the]
individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment.
42 U.S.C. § 12102(2). Kupstas concedes that at the time
No. 04-2081 5
of his discharge he did not have an actual impairment that
substantially limited a major life activity. He contends only
that he was regarded as having such an impairment.1
Under the “regarded as” prong, the employer must believe,
rightly or wrongly, that the employee has an impair-
ment that substantially limits one or more of the major
life activities. Cigan v. Chippewa Falls Sch. Dist., 388
F.3d 331, 335 (7th Cir. 2004). Kupstas alleges that Green-
wood regarded him as substantially limited in perform-
ing the major life activity of working. The Supreme Court
has voiced some reservations, and expressly reserved
judgment, about whether working can be a major life
activity under the ADA. See Toyota Motor Mfg., Ky., Inc.
v. Williams, 534 U.S. 184, 200 (2002). We have stated
that it can, see Peters, 311 F.3d at 843 (“To be sure, working
constitutes a major life activity under the ADA and the
Rehab Act.”), and neither party asks us to reconsider.
Kupstas’s primary argument is that he was fired because
of the restrictions imposed by Dr. Qualls and not because of
an actual inability to perform his job. Such an employment
decision would not violate the ADA, however, unless
Greenwood believed that the restrictions imposed by Dr.
Qualls constituted or revealed an impairment limiting
enough to be a “disability within the meaning of the Act.”
Tockes v. Air-Land Transp. Servs., Inc., 343 F.3d 895, 896
(7th Cir. 2003) (emphasis in original). “[I]f the condition
1
Kupstas briefly mentions that he also had a record of impair-
ment. The district court expressly declined to consider the second
prong of the definition of “disability,” however, because Kupstas
“provided no argument” on the issue. Because he does not chal-
lenge the district court’s ruling or contend that he has presented
sufficient evidence to make a prima facie showing that he had
a record of impairment, we do not consider the issue. See Tyler
v. Runyon, 70 F.3d 458, 465 (7th Cir. 1995) (“[I]f an appellant fails
to make a minimally complete and comprehensible argument for
each of his claims, he loses regardless of the merits of those claims
as they might have appeared on a fuller presentation.”).
6 No. 04-2081
that is the subject of the employer’s belief is not substan-
tially limiting, and the employer does not believe that it
is, then there is no violation of the ADA under the ‘regarded
as’ prong of the statute.” Mack v. Great Dane Trailers, 308
F.3d 776, 782 (7th Cir. 2002). In other words, unless the
city believed that Kupstas had an impairment that substan-
tially limited his ability to perform the major life activity of
working, then the city’s actions based on a mistaken belief
as to Kupstas’s abilities do not violate the Act.
The term “substantially limits,” like the other terms
within the ADA, is “interpreted strictly to create a demand-
ing standard for qualifying as disabled.” Toyota, 534 U.S. at
197. In the context of working, the Equal Employment
Opportunity Commission (“EEOC”) has interpreted “sub-
stantially limits” to mean “significantly restricted in the
ability to perform either a class of jobs or a broad range of
jobs in various classes as compared to the average person
having comparable training, skills and abilities.” 29 C.F.R.
§ 1630.2(j)(3)(i). It has further indicated that a plaintiff
relying on the major life activity of working must present
“evidence of general employment demographics and/or of
recognized occupational classifications that indicate the
approximate number of jobs (e.g., ‘few,’ ‘many,’ ‘most’) from
which an individual would be excluded because of an
impairment.” 29 C.F.R. Pt. 1630, App. § 1630.2(j). Although
the Supreme Court has reserved judgment on the weight
generally to be accorded the EEOC’s interpretation of ADA
terms, it has held that if working is determined to be a
major life activity under the ADA, a claimant will be
required to show “an inability to work in a broad range of
jobs.” Toyota, 534 U.S. at 194, 200 (internal quotations
omitted). We have concluded that, except in “rare cases in
which the [plaintiff’s] impairments are so severe that [his]
substantial foreclosure from the job market is obvious,” he
must present “some evidence of the number and types of
other jobs” in the geographic region, from which he would
No. 04-2081 7
be excluded because of his perceived impairments. EEOC v.
Rockwell Int’l Corp., 243 F.3d 1012, 1017-18 (7th Cir. 2001).
The impairments must “substantially limit employment
generally,” Stein v. Ashcroft, 284 F.3d 721, 725 (7th Cir.
2002), not merely preclude an employee from performing
“either a particular specialized job or a narrow range of
jobs.” 29 C.F.R. Pt. 1630, App. § 1630.2(j). A plaintiff can
never satisfy his burden by showing only that his employer
believed that he could not perform a specific job. Toyota,
534 U.S. at 200; Peters, 311 F.3d at 843.
In Rockwell, an employer required all applicants for
positions at its plant to undergo a “nerve conduction test.”
243 F.3d at 1014. Those who failed the test were denied a
job because the employer viewed them as having an en-
hanced likelihood of developing “cumulative trauma
disorders such as carpal tunnel syndrome.” Id. at 1014-15.
The EEOC, on behalf of the rejected applicants, claimed
that the employer regarded the applicants as disabled. Id.We held that the case could not go to the jury without at
least some evidence that the impairment allegedly per-
ceived by the employer would substantially limit the
applicants’ “ability to meet the requirements of other jobs.”
Id. at 1018.
The evidence presented in this case supports only the
conclusion that Greenwood believed that Kupstas was
unable to rake or shovel for more than 2 hours continuously
or 4 hours in a day and could lift no more than 55-60
pounds. Kupstas admits that, after the modification from 50
to 55-60 pounds, the city no longer was concerned about his
lifting restriction and did not believe that it would limit his
ability to work as a truck driver/laborer. Furthermore, even
if the city had viewed this as an impairment that prevented
Kupstas from performing his duties, we have held that
more serious restrictions do not substantially limit one’s
general ability to work. See, e.g., Peters, 311 F.3d at 844(finding no substantial limitation to the ability to perform
8 No. 04-2081
the major life activity of working where an employee was
unable to lift more than 50 pounds, shovel for more than
30% of a workday, or use of his shoulder for more than 2
hours continuously or 6 hours in a day); Contreras v.
Suncast Corp., 237 F.3d 756, 763 (7th Cir. 2001) (finding
not even a “hint” that the plaintiff was precluded from a
broad class of jobs where he was unable to lift more than 45
pounds, do “strenuous work,” or drive a forklift for more
than 4 hours in a day).
As to the remaining restrictions, Kupstas has offered no
evidence of other jobs that would require him to rake or
shovel for more than 2 hours continuously or 4 hours in
a day.2 In fact, in arguing that he could perform the essen-
tial functions of the truck driver/laborer position, Kupstas
asserted that even the “rake man” on the leaf crew did not
have to rake this much. In Contreras, we held that “forklift
operation” was not alone “broad enough to constitute a class
of jobs.” 237 F.3d at 763. The class of jobs requiring raking
or shoveling for more than 2 hours continuously or 4 hours
in a day is undeniably narrow and does not, without more,
2
The district court granted the city’s motion to strike the
following evidence submitted in opposition to Greenwood’s motion
for summary judgment: statements in Kupstas’s affidavit
repeating statements made to him by temporary employment
agencies; a series of affidavits of Christine M. Jackson, a law clerk
for Kupstas’s attorney, stating that she searched various job
listings and found titles which appeared to require the “repetitive
movements of raking and shoveling and similar repetitive
movements including sweeping and digging.” Though Kupstas
contends that the district court’s exclusion of the evidence was
“mistaken,” he does not appeal the ruling or argue that the
district court abused its discretion. See Cooper-Schut v. Visteon
Auto. Sys., 361 F.3d 421, 429 (7th Cir. 2004) (“We review eviden-
tiary rulings for abuse of discretion.”). Accordingly, we do not
review the district court’s ruling or consider the excluded evi-
dence.
No. 04-2081 9
indicate Kupstas’s “substantial foreclosure from the job
market.” Rockwell, 243 F.3d at 1017. As in Rockwell,
Kupstas’s failure to provide evidence as to a class or range
of jobs for which he otherwise was qualified, and from
which Greenwood perceived him to be excluded, is fatal to
his case.
Kupstas makes several assertions in an effort to show
that Greenwood believed that his impairment debilitated
him in ways other than limiting his raking and shoveling.
Each assertion is either unsupported by the evidence or
cannot be the basis for an inference that Greenwood
regarded him as disabled.
Kupstas first argues that Greenwood believed that he was
unable to perform any jobs requiring tasks “similar” to
raking and shoveling, such as mopping and sweeping. This
argument fails because Kupstas has offered no evidence
that similar physical abilities are needed to perform these
tasks, no evidence of the number of jobs in his geographic
area which require mopping or sweeping for more than 2
hours continuously or 4 hours in a day, and most impor-
tantly, no evidence that the city believed that his restric-
tions would prevent him from performing these “similar”
tasks.
Next, Kupstas argues that Greenwood’s insistence that he
have his restrictions “lifted” before returning to work shows
that Greenwood had a “100% healed rule.” He asserts that
this in turn shows that the city believed that anyone with
physical restrictions is disabled and unable to work. Given
Kupstas’s admission that the city was no longer concerned
about his lifting restriction, no reasonable jury could
conclude that the mere fact that Kupstas had work restric-
tions, or was not 100% healed, was the basis for his termi-
nation.
Kupstas argues that the city’s offer to reasonably accom-
modate him supports the inference that it did so because it
believed he was disabled. We do not assume that “an
10 No. 04-2081
employer offers accommodation only if it thinks that the
employee suffers from a substantial limitation in a major
life activity.” Cigan, 388 F.3d at 335. Even if a jury could
infer that an employer offered an accommodation because
of some perceived impairment, the plaintiff still must
demonstrate that the perceived impairment is one that
would substantially limit a major life activity. As we have
discussed throughout this opinion, Kupstas has not offered
any evidence to satisfy this burden.
Kupstas points to evidence that Owens made no attempt
to investigate the actual physical demands of the truck
driver/laborer position. He contends that, based on this fact,
a jury could infer that Owens had decided that Kupstas was
disabled. At most, this evidence shows that Owens believed
that Kupstas was not able to preform the duties of the truck
driver/laborer position. We already have explained that
Kupstas cannot meet his burden by showing that Green-
wood believed that he could not perform a specific job. See
Toyota, 534 U.S. at 200; Peters, 311 F.3d at 843.
Finally, Kupstas notes that, before his discharge, Gaier
contacted other city departments to inquire about pos-
sible positions for him. There is some dispute about
whether Gaier told Kupstas that there were “no jobs that
[Kupstas] qualified for within the City” or that there
were no available jobs in other departments for which
he was qualified. The latter version, advanced by the city,
is supported by a conversation with Owens and Gaier that
Kupstas secretly recorded, in which Owens explained to
Kupstas that he could maintain his seniority if he found
another job with the city:
I mean anything we can do . . . even if another position
somewhere else in the city came open . . . that didn’t
have the requirements of this position, you know—
at least your seniority and everything would stay intact
. . . . What we were going to even offer you is that if you
No. 04-2081 11
found a job within—with the city within a 30 day
period, I mean we would even—we would act as if you
never left the city. . . . I mean there were several things
we were willing to do because—just because of your
reputation here. . . . Like I say, you’ve been a model
employee as far as I’m concerned.
Assuming arguendo that a reasonable jury could conclude,
despite this evidence, that Gaier told Kupstas that the city
believed that he was not physically able to perform any job
with the city, it does not follow that the city believed that
Kupstas’s impairments made him unable to perform a
broad range of jobs. Kupstas has not presented evidence of
the number, nature, or qualifications of other jobs with the
city. Thus, there is no evidence that the city employed
workers in a broad range of jobs. Kupstas argues that “[t]he
mere fact that Gaier looked for jobs in other departments
shows that she thought Kupstas’[s] restrictions [a]ffected
his ability to do other jobs.” If anything, the reverse is true;
Gaier’s efforts suggest that she believed that Kupstas would
be able to perform other city jobs.
None of Kupstas’s attempts to describe his perceived
raking/shoveling impairment as more serious than it first
appears have created a triable issue. Kupstas has failed
to present sufficient evidence from which a reasonable
jury could conclude that Greenwood regarded him as having
an impairment that rendered him unable to work in a class
or broad range of jobs. At most, Kupstas can show that
Greenwood regarded him as unable to work in a specific job,
the truck driver/laborer position. This belief cannot be the
basis of an ADA violation.
III. Conclusion
The district court’s grant of summary judgment in favor of
Greenwood is AFFIRMED.
12 No. 04-2081
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-15-05