Tockes, Richard v. Air-Land Transport

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-1794
ROBERT TOCKES,
Plaintiff-Appellant,
v.
AIR-LAND TRANSPORT SERVICES, INC.,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 01-1405—Joe Billy McDade, Chief Judge.
____________
ARGUED AUGUST 6, 2003—DECIDED SEPTEMBER 9, 2003
____________
Before BAUER, POSNER, and KANNE, Circuit Judges.
POSNER, Circuit Judge. Robert Tockes’ suit for disabil-
ity discrimination by his former employer was dismissed on
summary judgment. In 1988 Tockes, who was then in the
Army, had injured his right hand. The nature of the injury
is unclear. The only description comes from Tockes, who
describes it as “a crushing injury” when his hand
was caught between two vehicles, resulting in “permanent
restrictions” on the use of his hand. He does not say what
those restrictions are, but the injury was serious enough
2 No. 03-1794
to induce the Army to award him a 20 percent disability
pension. The injury clearly was not disabling within the
meaning of the Americans with Disabilities Act, however,
as it did not prevent him from working at jobs that require
two hands, such as driving a truck that has not been
adapted for a disabled person. And indeed he was hired
by the defendant as a flatbed-truck driver in 2001 after in-
forming the defendant of his injury and being put through
a full road test and physical examination. One month later
he was fired, after the defendant discovered that he had
used only one hand in fastening a load to the bed of the
truck, in violation of the company’s safety rules; it is ex-
tremely dangerous to fasten a load on a flatbed truck
insecurely. Oddly, there is no indication whether it was
Tockes’ “good,” his left, hand that he was using to fasten the
load.
He contends, and for purposes of the appeal we accept,
that when he was fired the defendant told him the following
three things: he was being fired because of his disability, he
was crippled, and the company was at fault for having hired
a handicapped person. He argues that these statements
show that the company violated the provision of the ADA
that creates a remedy for a worker who suffers an adverse
personnel action because, though he is not disabled within
the meaning of the Act, his employer thinks he is. 42 U.S.C.
§ 12102(2)(C); Sutton v. United Airlines, Inc., 527 U.S. 471,
489-90 (1999); Dyke v. O’Neal Steel, Inc., 327 F.3d 628, 632-33
(7th Cir. 2003). The provision penalizes false beliefs about
disability in an effort to dispel them, on the theory that such
beliefs work to the detriment of the (truly) disabled. Sutton
v. United Airlines, Inc., supra, 527 U.S. at 489-90; Hoffman v.
Caterpillar, Inc., 256 F.3d 568, 573 (7th Cir. 2001). What
defeats Tockes’ suit is that there is no evidence that his
employer harbored the erroneous belief that he was dis-
abled within the meaning of the Act. (Obviously it knew he
No. 03-1794 3
had a disability.) For one thing, had it thought that, it would
have been unlikely to hire him to drive a flatbed truck, at
least without altering the controls so that he would not have
to operate the manual gearshift with his damaged right
hand. A “false belief” case is more plausible when a worker
who was fine when he was hired experiences some illness
or injury that his employer mistakenly considers disabling.
It is true that if Tockes is believed, the defendant called
him “crippled” and “disabled” and “handicapped,” but all
are words with a range of meanings, and do not without
more connote a belief that the individual is under the pro-
tection of the ADA. The Army thought Tockes 20 percent
disabled; obviously this does not mean that the Army
thought he was so far disabled as to fall within the restric-
tive meaning that the ADA assigns to the term. To be dis-
abled within that meaning, Tockes would have had to be
unable to drive without some accommodation to his dis-
ability. Unless the employer mistakenly believes that an
employee has a disability grave enough to be so classified
under the ADA, the employer’s acting on the mistaken
belief does not violate the statute. Wright v. Illinois Dep’t of
Corrections, 204 F.3d 727, 731-32 (7th Cir. 2000); Bailey v.
Georgia-Pacific Co., 306 F.3d 1162, 1169-70 (1st Cir. 2002).
Allowing this suit to go forward would merely discourage
employers from giving a chance for employment to workers
who have some degree of disability. Loading and driving a
flatbed truck is strenuous work, and so a partially disabled
person would be bound to have an above-average probabil-
ity of failing at it. If the probability materializes, as it may or
may not have done in this case (remember that we don’t
know which hand Tockes used in fastening the load), and
the company blames both itself and the partial disability for
the failure, there is no reason to ascribe a discriminatory
motive to the employer.
AFFIRMED.
4 No. 03-1794
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-9-03