Storey, Shirley v. City of Chicago ( 2008 )


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  •                       NONPRECEDENTIAL DISPOSITION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 February 13, 2008*
    Decided February 13, 2008
    Before
    Hon. JOEL M. FLAUM, Circuit Judge
    Hon. TERENCE T. EVANS, Circuit Judge
    Hon. ANN CLAIRE WILLIAMS, Circuit Judge
    No. 07-1815
    SHIRLEY STOREY,                                 Appeal from the United States District
    Plaintiff-Appellant,                       Court for the Northern District of
    Illinois, Eastern Division
    v.
    No. 04 C 7352
    CITY OF CHICAGO,
    Defendant-Appellee.                        Amy J. St. Eve,
    Judge.
    ORDER
    Shirley Storey sued her employer, the City of Chicago, alleging violation of
    the Americans with Disabilities Act, 
    42 U.S.C. §§ 12101-12213
    . The district court
    awarded summary judgment to the City and Storey appeals. We affirm.
    *
    After an examination of the briefs and the record, we have concluded that oral
    argument is unnecessary. Thus, the appeal is submitted on the briefs and the record.
    See FED. R. APP. P. 34(a)(2).
    No. 07-1815                                                                    Page 2
    The following facts are undisputed. Beginning in 1997, Storey worked for the
    Chicago Police Department (CPD) as a civilian file clerk in the Juvenile Advocacy
    Section. Her job duties included typing “juvenile summary cards,”—about 8½ by 5½
    inches in size—making corresponding folders, and filing the cards and folders. In
    December 2003 CPD computerized the information stored on the cards, thus
    eliminating a substantial portion of Storey’s job duties. Storey’s immediate
    supervisor, Maria Sierra, instructed Storey and two other file clerks to begin filing
    “missing persons control cards,” a task previously performed by another clerk who
    had recently retired. Storey believed that filing the missing persons cards was not
    her job, and it hurt her fingers and neck because these cards were significantly
    smaller—only 3 by 4 inches—than the juvenile summary cards.
    In July 2004 Storey complained to Sierra and Sierra’s supervisor, Kevin
    Fahey, about filing the smaller cards. Later that month Storey saw a doctor who
    wrote to Fahey that filing the smaller cards aggravated Storey’s thyroid condition,
    which caused her pain in her neck and inflamed the sheath surrounding the tendon
    of her right middle finger. Fahey advised Storey either to do her job or take sick
    days and medical leave until she could. Storey also complained about Fahey to a
    personnel department employee who told Storey that she would be found a new job.
    Storey then used sick and vacation days as well as medical leave until September
    2004 when she called to say she was ready to return to work.
    After Storey obtained a written release from her doctor, she returned to work
    in the Juvenile Advocacy Section. Sierra then gave Storey more missing persons
    cards to file. But rather than filing them, Storey put them in her desk. The next
    day, Fahey and Mary Conley, a personnel officer, told Storey that she had to do her
    work. Conley alleged in her affidavit that during the meeting Storey stared at
    Fahey in an intimidating way and said something under her breath that she refused
    to repeat.
    The following Monday, Storey arrived at her office, but she refused to work,
    and simply sat at her desk wearing sunglasses and headphones. On top of a stack of
    missing persons cards, Storey put a small piece of paper stating, “I am not to do any
    work in this unit until I am released by my doctor,” and she handed the stack of cards
    back to Sierra. Fahey had Storey removed from the office because she was not
    working and her presence was disruptive. Based on Storey’s behavior in the three
    days she had been back at work, Conley requested that Storey be required to pass a
    “fitness for duty evaluation” before returning to work again. The request was
    approved and Storey went back on medical leave. While on leave, a psychologist
    examined Storey as part of the evaluation and determined that she was not fit to
    No. 07-1815                                                                      Page 3
    return because of her anger, resentment, depression, and anxiety. Although Storey
    requested reinstatement, she was not permitted to return to work.
    Storey testified that she was disabled as a result of painful and swollen fingers
    and neck and that she experienced these symptoms from June 2004 to July or
    August 2004. Storey also testified that she had trouble cooking because her hand
    hurt and had trouble sleeping because of pain on one side of her neck. However, the
    only work-related task that Storey testified she could not perform was filing missing
    persons cards. Furthermore, Storey testified that she did not think that she was
    discriminated against at work because she was regarded as disabled. The district
    court awarded summary judgment to the City, holding that Storey was not disabled
    within the meaning of the ADA. Although Storey’s amended complaint alleged both
    discrimination and harassment in violation of the ADA, her appeal raises only the
    issue of discrimination. We review the district court’s grant of summary judgment de
    novo. Squibb v. Mem’l Med. Ctr., 
    497 F.3d 775
    , 780 (7th Cir. 2007).
    Storey alleged that the City discriminated against her both by treating her
    less favorably because of her disability and by failing to accommodate her disability
    by not assigning her tasks that did not include filing missing persons cards. We first
    consider whether Storey is disabled under the ADA. If she is not, neither claim can
    proceed; disability is the first element of both claims. See Cassimy v. Bd. of Educ. of
    the Rockford Pub. Schs., Dist. # 205, 
    461 F.3d 932
    , 935-36 (7th Cir. 2006) (collecting
    authority). Storey must demonstrate that she is disabled in one of three ways: by
    showing that she has a physical or mental impairment that substantially limits a
    major life activity, that there is a record of such impairment, or that the City regards
    her as having such an impairment. See 
    42 U.S.C. § 12102
    (2)(A)-(C); Sutton v. United
    Air Lines, 
    527 U.S. 471
    , 478 (1999); Kampmier v. Emeritus Corp., 
    472 F.3d 930
    , 937
    (7th Cir. 2007). We consider the three possibilities in reverse order.
    First, Storey admitted at her deposition that she did not believe that she was
    discriminated against on account of a perceived disability. Storey testified: “I don’t
    think [Fahey] treated me a certain way because I had a disability. I think he treated
    me a certain way because I was African American.”2 When asked, “Do you think that
    they ever discriminated against you because they believed you had a disability?”
    Storey responded “No.” Perceived disability is therefore not at issue here. Second,
    Storey presented no evidence that she had a record of disability. Storey directs us to
    2
    Storey’s initial charge presented to the Equal Employment Opportunity
    Commission alleged race discrimination, but Storey’s amended complaint alleged
    discrimination on the sole basis of her disability.
    No. 07-1815                                                                      Page 4
    the letter from her doctor diagnosing her conditions, but his diagnoses do not say
    whether her conditions rose to the level of a substantial limitation on a major life
    activity, which is a necessary requirement under this definition of disabled. See
    Rooney v. Koch Air, LLC, 
    410 F.3d 376
    , 381 (7th Cir. 2005).
    We therefore turn to whether Storey’s other evidence demonstrates that her
    impairments substantially limited a major life activity. To make this determination,
    we look to “the nature and severity of the impairment, the duration and expected
    duration of the impairment and the permanent or long term impact or the expected
    permanent or long term impact of or resulting from the impairment.” Kampmier,
    
    472 F.3d at 937
    ; see also 
    29 C.F.R. § 1630.2
    (j)(2)(i)-(iii).
    Storey first argues that she is substantially limited in her ability to sleep. We
    have held that sleeping is a major life activity, Scheerer v. Potter, 
    443 F.3d 916
    , 920
    (7th Cir. 2006), but to rise to the level of a disability the limitation must be severe
    and prolonged, Burks v. Wis. Dep’t of Transp., 
    464 F.3d 744
    , 757 (7th Cir. 2006).
    Storey testified that she had trouble sleeping on one side as a result of her neck pain,
    but she also testified that the pain subsided shortly after she stopped filing missing
    persons cards. “[T]emporary, non-chronic impairments of short duration, with little
    or no long term or permanent impact, are usually not disabilities.” 29 C.F.R. Pt.
    1630, App., § 1630.2(j). Moreover, we have held that to demonstrate a substantial
    limitation in sleeping, a plaintiff must either put forth evidence that her purported
    disability restricts her waking functions, or she must otherwise support her
    contentions with more evidence than personal assertions. See Squibb, 
    497 F.3d at 784
    . As Storey has done neither, she has failed to demonstrate that her problem
    sleeping is a substantial limitation.
    Storey next argues that she has difficulty cooking as a result of the pain in her
    right middle finger. We have never held cooking to be a major life activity, although
    it may be one of several activities that collectively constitute caring for oneself. See
    
    29 C.F.R. § 1630.2
    (i); Squibb, 
    497 F.3d at 784
    . But a substantial limitation in
    cooking—no matter how severe—will not rise to the level of a substantial limitation
    in caring for oneself absent evidence of limitations in other areas of caring for
    oneself. See 
    id.
     As Storey has not suggested that she is substantially limited in
    caring for herself in any other capacity, we must conclude that she has not
    demonstrated that she is substantially limited in that major life activity.
    Because Storey has failed to establish that she is disabled within the meaning
    of the ADA, we AFFIRM the judgment of the district court.