Scheerer, Scott E. v. Potter, James E. ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-2338
SCOTT E. SCHEERER,
Plaintiff-Appellant,
v.
JOHN POTTER, Postmaster General,
United States Postal Service,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 04-C-0611-S—John C. Shabaz, Judge.
____________
ARGUED JANUARY 5, 2006—DECIDED APRIL 10, 2006
____________
Before FLAUM, Chief Judge, and ROVNER and WILLIAMS,
Circuit Judges.
WILLIAMS, Circuit Judge. Plaintiff-Appellant Scott
Scheerer filed suit against the United States Postal Service,
claiming that it failed to reasonably accommodate his
suffering from diabetic symptoms by refusing to hire a
replacement clerk in a timely fashion. Granting summary
judgment in favor of the Postal Service, the district court
ruled that Scheerer could not establish as a matter of law
that he was disabled under the Rehabilitation Act, 29
U.S.C. § 794 (2000). We affirm.
2 No. 05-2338
I. BACKGROUND
In 1993, Scheerer became the full-time postmaster in
a small post office located in Wonewoc, Wisconsin. At
that time, he had the assistance of a clerk who worked
approximately thirty hours per week. In 1998, the pub-
lic hours of the post office were reduced and the clerk’s
hours were also reduced to approximately fifteen hours
per week. In July 2002, the clerk transferred to another
location, leaving Scheerer to work alone in the post office.
The timing of the clerk’s transfer could not have been
worse for Scheerer because his Type 2 diabetes, which had
been first diagnosed in 1993, began to worsen progressively
throughout the years 2002 and 2003. For instance, during
April 2002, Scheerer developed a diabetic ulcer on his left
foot as a result of neuropathy in sections of his left foot (this
diabetic ulcer healed in August 2002). In addition, through-
out 2002, Scheerer’s physician showed increasing concern
for his weight condition and recommended significant
dietary changes. At the end of 2002, Scheerer’s condition
had worsened, and he began insulin injections (two times
per day) for the first time.
On December 9, 2002, Scheerer notified his supervisor,
Janet Bieschke, that he was diabetic and that he was
experiencing deteriorating health. He also requested
additional help at work. (In fact, Scheerer had protested the
potential loss of a clerk for many months, although his
initial protest was not tethered to his health condition, but
rather the increased work responsibilities he would likely
face.) The Postal Service refused Scheerer’s December 9,
2002 request for a replacement clerk.
On January 13, 2003, Scheerer contacted the Postal
Service’s Equal Opportunity office for pre-complaint
counseling (the governing statute required Scheerer to seek
such counseling within forty-five days of an adverse
employment “event”). During this time, Scheerer’s symp-
No. 05-2338 3
toms worsened, and around February 20, 2003, he devel-
oped diabetic ulcers on both feet. Scheerer continued his
demands for a replacement clerk. On March 5, 2003, he
wrote to Bieschke requesting a replacement clerk; he then
followed up this request with another letter on March 15,
2003, which made similar requests and this time included
photographs of his diabetic ulcers. Bieschke did not respond
to these letters.
On March 21, 2003, Scheerer’s physician provided a
medical restriction that limited Scheerer’s workday to a
maximum of four hours. Scheerer forwarded this med-
ical restriction to Bieschke. This letter prompted the
desired response: four days later, on March 25, 2003,
Bieschke authorized a replacement clerk, effective April 5,
2003.
On April 21, 2003, Scheerer filed a formal complaint with
the Postal Service’s Equal Opportunity office, which then
led to the present suit. On March 4, 2005, the district court
granted summary judgment in favor of the Postal Service,
holding that Scheerer could not establish that he was
disabled under the Rehabilitation Act because he could not
show that he was severely limited in any major life activi-
ties, such as walking, sleeping, eating, and sexual reproduc-
tion. This appeal followed.
II. ANALYSIS
To establish a prima facie case under the Rehabilita-
tion Act, Scheerer must show that he: (1) suffers from a
substantial limitation of a major life activity (i.e., he is
disabled under the terms of the statute); (2) is otherwise
qualified to perform the essential functions of his job, with
or without reasonable accommodation; and (3) has suf-
fered an adverse employment decision because of the
disability. Peters v. City of Mauston, 311 F.3d 835, 842 (7th
Cir. 2002). Because of the similarity between the prima
4 No. 05-2338
facie requirements under Rehabilitation Act and the
Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12111et seq. (2000), we look to our case law under the ADA to
determine whether a plaintiff has established his prima
facie burden. Id.The dispositive issue in this appeal is whether Scheerer
can establish that he was disabled by providing sufficient
evidence that he suffered from a substantial limitation of a
major life activity. The crucial inquiry for purposes of this
appeal is whether Scheerer’s “limitation is substantial or
considerable in light of what most people do in their daily
lives, and whether the impairment’s effect is permanent or
long term.” EEOC & Keane v. Sears, Roebuck & Co., 417
F.3d 789, 801 (7th Cir. 2005). To meet this requirement,
Scheerer must be able to show that during the pertinent
time period1 he was either prevented or severely restricted
from such major daily tasks, such as walking, eating,
sleeping, or sexual reproduction. Toyota Motor Mfg., KY,
Inc. v. Williams, 534 U.S. 184, 195-99 (2002); Bragdon v.
Abbott, 524 U.S. 624, 637-38 (1998). This is a high standard
to meet. See id. To survive summary judgment, the plaintiff
must provide specific facts establishing that there is a
genuine issue of material fact as to whether he is substan-
tially limited in a major life activity. Id. Specific facts are
required; conclusory allegations will not do. Moore v. J.B.
Hunt Transp., Inc., 221 F.3d 944, 951-52 (7th Cir. 2000).
1
The parties dispute whether the pertinent time period for
determining whether Scheerer was disabled should be frozen at
January 13, 2003, when Scheerer initially requested pre-com-
plaint processing, or should continue forward until April 5, 2003,
when the Postal Service provided a replacement clerk. Be-
cause it does not alter our analysis, we will assume—without
deciding—that our analysis should include the time period up
until April 5, 2003.
No. 05-2338 5
This court has held that diabetic status, per se, does
not qualify a plaintiff as disabled under the ADA. Nawrot
v. CPC Int’l, 277 F.3d 896, 904 (7th Cir. 2002). Instead,
we look to the individual impairments suffered by the
diabetic individual to examine whether he meets the high
threshold of establishing a genuine issue of material fact as
to substantial limitation. Id. For instance, in Lawson v.
CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001), we held
that a plaintiff who suffered from severe Type 1 (insulin
dependent) diabetes and who was on a diet that severely
restricted the types of foods he could eat, such that “dire
and immediate consequences” would follow if he failed
to maintain the strict dietary regimen, could be con-
sidered disabled under the ADA. Id. at 924. In Nawrot, we
held that a plaintiff who could not completely control his
blood sugar level, and, as a result, suffered from “unpredict-
able hypoglycemic episodes, of such extreme consequence
that death is a very real and significant risk,” as well as
possible impaired ability to think coherently and loss of
consciousness or cognitive ability, could establish disability
under the ADA. Nawrot, 277 F.3d at 905. In Branham v.
Snow, 392 F.3d 896 (7th Cir. 2004), we held that a diabetic
who was “significantly restricted as to the manner in which
he can eat” had established a genuine issue of material fact
as to whether he was disabled under the Rehabilitation Act.
Id. at 903.
Here, the district court held that Scheerer could not
establish that he suffered a substantial limitation in major
life activities, such as walking, eating, sleeping, or sexual
reproduction. The record does not indicate otherwise.
Although there can be no doubt that Scheerer suffered from
pain and significant inconvenience from his progressively
worsening diabetic condition, he does not point to enough
evidence in the record to show that he was prevented from
performing, or was otherwise severely restricted in, any
major life activities. During the pertinent time period,
6 No. 05-2338
Scheerer did not experience many of the more severe
symptoms of diabetes, including severe hypoglycemia,
seizures, or loss of consciousness. This suggests that his
diabetes had not yet worsened to such a stage where it
severely restricted his major life activities.
For instance, Scheerer cannot establish that he was
severely restricted in walking or standing. Although
Scheerer relied on a cumbersome protective boot for a
period of time because of his diabetic ulcers and experienced
intermittent episodes of significant neuropathy, he nonethe-
less was generally able to walk and stand during the
pertinent time period. Indeed, he conceded that he routinely
completed all of his work duties during his eight-hour shift,
and these duties appear to have included significant periods
of standing or walking, although the record is admittedly
somewhat underdeveloped on the exact nature of his job
duties with respect to standing and walking. In any event,
although Scheerer reported to the Postal Service that he
“could hardly stand” at the end of his shift, there is nothing
in the record indicating that his physicians determined that
prior to March 25, 2003, (when he received a medical
restriction) he was severely limited in his ability to stand or
walk. Cf. Keane, 417 F.3d at 802 (holding that a reasonable
jury could find that a plaintiff’s neuropathy, which pre-
vented the plaintiff from walking more than one city block,
was a substantial limitation compared to the walking that
most people do daily). In addition, once Scheerer’s condition
progressed further, such that he received a medical restric-
tion limiting his workday to four hours, the Postal Service
immediately approved a replacement clerk, who was
at work within ten days of Scheerer’s notification of his
limited workday.
In a similar vein, Scheerer did not present evidence
showing that his dietary restrictions were sufficiently
severe to rise to the level of a substantial limitation. That
is, the predominant purpose of his dietary restrictions
No. 05-2338 7
was to lose weight—as millions of other non-disabled
individuals seek to do—rather than to control rapid fluctua-
tions of his blood sugar levels that could lead to immediate
and dire consequences. Moreover, his diet followed the
general contours of the diets of most individuals seeking to
lose weight. Thus, there is nothing in the record tending to
show that his dietary restrictions were of the type of severe
dietary restrictions that if not followed would lead to “dire
and immediate consequences,” or alternatively, were so
unusually restrictive that they could impose a substantial
limitation on the major life activity of eating. Cf. Lawson,
245 F.3d at 924.
Scheerer’s evidence pertaining to severe restrictions in his
ability to sleep is also insufficient. Scheerer’s evidence on
sleeping difficulties establishes, at most, intermittent
disrupted sleep, but it cannot establish the type of pro-
longed, severe and long-term sleep difficulties that can
amount to a substantial limitation in the major life activity
of sleeping.2 Pack v. Kmart Corp., 166 F.3d 1300, 1306 (10th
Cir. 1999) (holding that intermittent or treatable sleep
2
Scheerer also refers to his psychological condition, which carries
a diagnosis of “adjustment disorder with mixed emo-
tional features.” He does not spell out precisely how this condition
results in a substantial limitation in a major life activity, aside
from references to sleep disruption, which, as noted above, are not
intrusive enough to qualify as a disability under the statute.
Adjustment disorders are, by diagnostic classification, short-term
psychological responses to life stressors, typically lasting less than
six months. See AM. PSYCHIATRIC ASS’N, DIAGNOSTIC AND STATISTI-
CAL MANUAL OF MENTAL DISORDERS 309.40 (4th ed. 1994).
Scheerer does not argue that his psychological condition, standing
alone, amounts to a disability under the ADA, and, under the
circumstances here, it surely could not. Cf., e.g., Bultemeyer v.
Fort Wayne Cmty. Sch., 100 F.3d 1281, 1284, 1287 (7th Cir. 1996)
(holding that plaintiff with a history of paranoid schizophrenia
and bipolar disorder was disabled under the ADA).
8 No. 05-2338
difficulties that resulted from major depression did not
substantially limit the major life activity of sleep).
Finally, Scheerer’s evidence pertaining to a substantial
limitation in sexual reproduction is insufficient. Scheerer
complains of reduced sexual drive and difficulty in ob-
taining erections; he must rely on injections to sustain
an erection. His complaint is limited reduced sexual
activity, untethered to impairments in sexual reproduction.
This alone may be fatal to his claim because this court has
not recognized lowered sexual drive or impotence as the
types of disruptions than can amount to a disability under
the ADA or the Rehabilitation Act. See Contreras v. Suncast
Corp., 237 F.3d 756, 764 n.6 (7th Cir. 2001). In Contreras,
we recognized that severe limitations in the ability to
engage in sexual activity for the purposes of reproduction
(such as when an HIV-positive individual refrains from
sexual activity because of fear of transmission to an off-
spring) could amount to an impairment of a major life
activity in certain circumstances. Id. at 764, citing Bragdon
v. Abbott, 524 U.S. 624, 638-39 (1998). But in Contreras we
specifically distinguished that type of scenario from one in
which the plaintiff is merely complaining of “a change in the
frequency” with which he “can engage in intercourse,”
without showing “any significant impact on his ability to
reproduce.” Id. Thus, the type of impairment that Scheerer
raises here—namely, reduction in sexual desire and erectile
dysfunction—does not significantly limit his capacity to
reproduce, and therefore is not likely to be a substantial
limitation in the major life activity of reproduction. See id;
cf. Bragdon, 524 U.S. 624.
In addition, even if this court were to recognize that the
impairments in sexual activity that Scheerer addresses,
irrespective of their impact on reproductive ability, could
amount to a substantial limitation in a major life activity,
Scheerer does not present enough evidence that he is
substantially limited in these areas. That is, he concedes
No. 05-2338 9
that he is still able to engage in sexual activity, although it
requires limited medical assistance. And nothing in
the record indicates the type of medical or psychological
conditions that necessarily render his lowered sexual
drive a long-term, much less permanent, circumstance.3
(Even if he could provide such evidence, Scheerer fails to
explain in what fashion the Postal Service could reasonably
accommodate his diabetes in the context of symptoms of
sexual dysfunction.)
As a final note, Scheerer repeatedly argues that the
district court erred in not considering the progressive
and deteriorating nature of his disease to determine
whether he was disabled. But taken to its logical conclusion,
Scheerer’s argument here would result in any individual
with a progressive disease being designated as disabled at
any point in time, merely because of the likely progressive
nature of the impairment. The clear problem with this
proposal is that it necessarily requires employees, employ-
ers, administrative bodies, and, inevitably, courts to
speculate and predict on the likely future course of a
progressive disease. Cf. Bragdon, 524 U.S. at 637 (holding
that asymptomatic HIV could be a physical impairment that
substantially limits the major life activity of reproduction
because its effects are immediate on reproductive decisions).
Given the wide variety of potential outcomes across individ-
uals, particularly when considered in tandem with potential
treatments, possible interventions, and general individual
differences in response to progressive diseases, this is
plainly an unworkable solution. Instead, the better course
(and one mandated by the statute) is to require an individ-
3
As noted above, Scheerer’s psychological condition is not a
severe or long-term psychological disorder, and, as a result, its
effect on Scheerer’s sexual drive is necessarily neither severe
nor long-term.
10 No. 05-2338
ual to meet the requirements of disability at the time he
seeks protections under the Rehabilitation Act.
The discussion above is not intended to minimize the
significant suffering and pain experienced by the plain-
tiff here. There can be no doubt that he has experienced
numerous difficulties that have impacted his life, and,
indeed, in August 2003 he suffered an amputation of his
right foot (several months after the Postal Service had
reasonably accommodated him).4 The Rehabilitation Act,
however, requires a significantly higher level of impairment
than Scheerer (fortunately) can show during the pertinent
time period, and, as a result, summary judgment was
appropriate in this case.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s
grant of summary judgment in favor of the defendant.
4
At oral argument, Scheerer’s counsel raised, for the first time,
the argument that Scheerer’s subsequent amputation may
have been related to the Postal Service’s failure to reasonably
accommodate Scheerer in a more timely fashion. Setting aside the
likely waiver of these issues, because we hold that Scheerer could
not establish that he was disabled, we need not reach
the threshold issue of whether Scheerer’s request for a replace-
ment clerk was a reasonable request, or, assuming it was,
whether the Postal Service’s response was adequate under the
statute.
No. 05-2338 11
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-10-06