Daniel Fredricksen v. United Parcel Service Co.

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-2060
D ANIEL L. F REDRICKSEN,
Plaintiff-Appellant,
v.
U NITED P ARCEL S ERVICE, C O .,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 06 C 2285—Virginia M. Kendall, Judge.
A RGUED F EBRUARY 18, 2009—D ECIDED S EPTEMBER 8, 2009
Before R OVNER, E VANS, and T INDER, Circuit Judges.
R OVNER, Circuit Judge. Daniel Fredricksen sued his
employer, United Parcel Service (“UPS”), claiming that
the company discriminated and retaliated against him
in violation of the Americans with Disabilities Act
(“ADA”), 42 U.S.C. §§ 12101-12213. The district court
concluded that Fredricksen, who suffers from leukemia,
had not set forth sufficient evidence from which a jury
could conclude that he is “disabled” for purposes of the
ADA or that he suffered an adverse employment action,
2 No. 08-2060
and the court therefore granted summary judgment
for UPS on all claims. We affirm the judgment.
I. BACKGROUND
Fredricksen began working for UPS in 1992 as an
aircraft mechanic at the company’s O’Hare Airport
facility in Chicago, Illinois (“O’Hare gateway”). The events
relevant to Fredricksen’s claims occurred between
early 2004 and May 2006, when he worked the afternoon
shift at the O’Hare gateway. Although the parties differ
about the precise duties of afternoon-shift mechanics,
they agree that those mechanics are generally responsible
for inspecting outbound aircraft and preparing them
to depart on time. The terms and conditions of Fredrick-
sen’s employment were governed by a collective-bargain-
ing agreement between UPS and the International Brother-
hood of Teamsters Local 2727.
Fredricksen, who served as an elected union steward
during this period, had a history of conflict with manage-
ment. Although Scott Crane, one of Fredricksen’s super-
visors, had once commended his attention to detail as
being comparable to that of a brain surgeon, the two
men had a contentious relationship. Even before he was
diagnosed with leukemia, Fredricksen had filed several
internal grievances against Crane both for himself and on
behalf of other mechanics at the O’Hare gateway. Several
of Fredricksen’s co-workers testified that working condi-
tions at the gateway were tense across the board, and
one recalled that there had “always been some friction”
between management and “any one, if not all of us.” Even
after Fredricksen allegedly became disabled by his leuke-
No. 08-2060 3
mia, it was this general tension, not his illness, that
Fredricksen cited when he lodged a complaint via UPS’s
employee hotline about the “hostile working environ-
ment” for all mechanics at the O’Hare gateway.
Fredricksen first learned that he might have leukemia
in February 2004 when a blood test during a routine
physical revealed signs of the disease. An official
diagnosis—chronic lymphocytic leukemia—was not made
until December 2004, and in March 2005 a specialist in-
formed Fredricksen that his leukemia was in stage 0,
the lowest-risk stage.
The parties disagree about when UPS management first
became aware of Fredricksen’s condition. During his
deposition, Fredricksen testified that in May 2004, three
months after his blood work first showed signs of cancer,
he told Crane that he might have leukemia and that his
doctor had advised him to avoid stressful situations.
According to Fredricksen, Crane was sympathetic: he
revealed that his previous wife had died of cancer and
asked Fredricksen to let him know if there was anything
he could do to help. Fredricksen also recalled that he
told two other mechanics, Dave Horning and Paul
Suchecki, about his possible leukemia around the
same time. Fredricksen added that he shared the final
diagnosis with Crane and supervisor Essey Kinfe in
January 2005, the month after he received confirmation.
But other testimony submitted at summary judgment
contradicts Fredricksen’s version of events. Crane testified
that he first learned of Fredricksen’s illness from another
mechanic in January 2005. Afterward, said Crane, he
approached Fredricksen in the company break room,
4 No. 08-2060
acknowledged that he had heard about the diagnosis,
and “wished him well.” Kinfe similarly testified that he
first learned about the condition in early 2005 when
Crane told him that Fredricksen would be calling in late
or taking days off for treatment of “some medical is-
sues” and instructed Kinfe to “not hold that against
him.” Fredricksen’s co-workers, Horning and Suchecki,
also testified that Fredricksen did not tell them about
his condition until early 2005. Fredricksen’s interview
with an investigator from the Equal Employment Oppor-
tunity Commission supports this version of events: he
told the investigator that he had been diagnosed with
leukemia in December 2004 and had first informed man-
agement in January 2005.
Fredricksen does not contend that anyone at UPS ever
made any comment, discriminatory or otherwise, about
his leukemia. Instead, he recites six workplace incidents
beginning in May 2004 which he labels “a course of
hostile, abusive, and harassing conduct because of his
actual or perceived disability.” First, in late May—just
days after Fredricksen says he revealed the preliminary
diagnosis to Crane—Crane reprimanded him for ex-
ceeding the prescribed requirements for inspecting out-
bound aircraft. Crane apparently believed that Fredricksen
was performing excessively detailed inspections, and
when Fredricksen used a magnifying glass to inspect
cracks on an aircraft engine in June 2004, Crane repri-
manded him again and then barred him indefinitely from
inspecting the departing airplanes. From that point for-
ward, Fredricksen testified, he was mostly “relegated to
performing back room filing duties.” He admitted, how-
ever, that he still performed maintenance jobs and certain
No. 08-2060 5
technical tasks when needed, and he did not deny the
company’s contention that he continued to perform all
of his other job responsibilities including troubleshooting,
replacing aircraft components, ordering parts, and
fueling aircrafts. Fredricksen did not suffer any loss of
pay as a result of the restriction.
Another alleged instance of harassment began on July 6,
2005, when Fredricksen and another mechanic were
asked to work overtime on an engine test run, which they
initially were told would take no more than two hours.
As the expiration of the two hours approached, the men
learned that the aircraft would not be ready for
another four hours. Fredricksen, fatigued from the long
day, clocked out 30 minutes later without first receiving
permission. After a “fact-finding hearing,” Fredricksen
was placed on a “working suspension” for failing to
work that evening as directed. As the name of the sanc-
tion suggests, Fredricksen continued to work during his
“suspension” and did not suffer any loss of pay as a result.
The other four incidents were of similar character. On
one occasion, Fredricksen was reprimanded for vio-
lating UPS policy by failing to sign an aircraft logbook,
even though the mistake, according to Fredricksen and
the other mechanics to testify, was a technicality
frequently overlooked and seldom punished. Another
time he was reprimanded and subjected to a “fact-finding
hearing” when a technical publication he was charged
with maintaining went missing, but the hearing did not
result in any further discipline. On a third occasion,
Fredricksen was involuntarily assigned to temporary
duty in Lansing, Michigan. The brief temporary assign-
6 No. 08-2060
ment was authorized by Fredricksen’s union contract
with UPS. Fredricksen nonetheless viewed the incident
as harassment because before assigning the position to
him, UPS kept the assignment open to volunteers for
only six days, instead of the seven days Fredricksen says
the labor agreement required. And, finally, Fredricksen
was directed to take a UPS recertification test without
advance notice and then issued a written warning for
not passing on the first attempt.
Fredricksen also sought two ADA accommodations
during the two years at issue. First, although the labor
agreement dictated that employees take “option” days—a
type of vacation—in weekly blocks, Fredricksen wanted
permission to take his days one at a time for
medical reasons. When he submitted the request, UPS
promptly sent him standardized forms for his physician
to complete, but Fredricksen objected to the forms
because he believed they requested excessive informa-
tion and were intentionally drafted to disqualify em-
ployees from ADA protection. UPS declined to alter the
forms, and when Fredricksen failed to return them, the
company informed him that it considered his request
withdrawn.
The other request was made in early April 2006, when
Fredricksen asked to be reassigned to a vacant aircraft-
mechanic position in Tucson, Arizona. Fredricksen ex-
plained in his request that he thought the weather in
Tucson would make him less susceptible to catching colds
or contracting pneumonia as a result of his leukemia.
Under the labor agreement, Fredricksen could also com-
pete for the post based on seniority, and he submitted
No. 08-2060 7
a bid. That bid was promptly accepted, and UPS thus
informed him that it considered his accommodation
request moot. Fredricksen started his new position in
Tucson in May 2006, just after he filed this lawsuit at the
end of April. At his deposition nine months later,
Fredricksen reported that in Tucson he was allowed to
perform aircraft inspections and had no complaints
about management.
II. ANALYSIS
We review the district court’s grant of summary judg-
ment de novo, construing all facts and reasonable infer-
ences in favor of Fredricksen, the opposing party. See
Winsley v. Cook County, 563 F.3d 598, 602 (7th Cir. 2009).
We will affirm if the evidence at summary judgment
establishes that there is no genuine issue of material fact
and that UPS is entitled to judgment as a matter of law.
See Lloyd v. Swifty Transp., Inc., 552 F.3d 594, 600 (7th Cir.
2009).
The ADA 1 prohibits discrimination against a “qualified
individual with a disability because of the disability of
1
Significant changes to the ADA took effect on January 1, 2009,
after this appeal was filed. See ADA Amendments Act of 2008,
Pub. L. No. 110-325, 122 Stat. 3553 (2008). Congress did not
express its intent for these changes to apply retroactively, and
so we look to the law in place prior to the amendments. See Lytes
v. DC Water & Sewer Auth., 572 F.3d 936, 939-42 (D.C. Cir.
2009); Winsley, 563 F.3d at 600 n.1; EEOC v. Agro Distrib., LLC,
555 F.3d 462, 469 n.8 (5th Cir. 2009).
8 No. 08-2060
such individual.” 42 U.S.C. § 12112(a) (2006). Though
undoubtedly a serious medical condition, leukemia is
not, per se, a “disability” for purposes of the ADA. See
Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555, 566-67 (1999)
(explaining that determination of disability is based not
on diagnosis of impairment but on effect of impair-
ment); Nese v. Julian Nordic Constr. Co., 405 F.3d 638, 642-
43 (7th Cir. 2005) (“A medical condition . . . by itself does
not constitute a disability under the statute.”). Rather,
an individual with leukemia, or any other illness,
qualifies as “disabled” under the ADA only if (1) he
has a physical or mental impairment that substan-
tially limits one or more major life activities; (2) he has
a record of such an impairment; or (3) his employer
regards him as having such an impairment. See 42
U.S.C. § 12102(2); Squibb v. Mem’l Med. Ctr., 497 F.3d
775, 781 (7th Cir. 2007). Fredricksen asserts that he is
“disabled” under the first and third categories; thus to
survive summary judgment he was required, as an
initial matter, to present evidence from which a rea-
sonable factfinder could conclude that he is substantially
limited in a major life activity or that UPS regarded him
as such.
We first consider whether Fredricksen presented suffi-
cient evidence to demonstrate that he suffered from an
actual impairment that substantially limited him in a
major life activity. Although Fredricksen asserts in this
court that he is substantially limited in breathing,
walking, eating, speaking, and working, he developed
only his arguments as to walking and breathing before
No. 08-2060 9
the district court, so any argument as to the other
activities is waived.2
With regard to walking, Fredricksen testified at his
deposition that since mid-2005 he has not been able to
walk for “the same period of time or in the same way” as
a “normal individual” because of muscle and joint
fatigue caused by his leukemia. He did not elaborate,
however, except to say that at times climbing one flight
of stairs makes him feel as though he “just walked up the
side of a mountain,” that sometimes he gets tired
just walking the aisles of a grocery store, and that he
would not have the stamina to walk continuously from
an airport drop-off point to a departure gate. And when
asked if he could walk a mile, Fredricksen said only,
“I don’t know. I haven’t tried.” Fredricksen conceded,
though, that at all times he was able to perform the es-
sential functions of his job as an aircraft mechanic (which
include walking, standing, bending, stooping, climbing,
and crawling for the duration of an 8- or 10-hour work-
day), that he never missed work because of difficulty
walking, that he never sought any type of assistive device
or other treatment for the problem, and that no physician
had ever directed him to restrict his walking. Dr. Kouchis,
Fredricksen’s personal physician and the only doctor
to offer an opinion on the issue, testified that he did not
believe Fredricksen’s ability to walk was substantially
2
Fredricksen also argued in the district court that he was
substantially limited in the major life activity of procreating,
but he has not raised that argument on appeal.
10 No. 08-2060
limited and could not remember Fredricksen ever
giving any indication otherwise. Fredricksen sought to
undermine Dr. Kouchis’s testimony by pointing out that
the doctor had treated him just three times and was not
an expert on leukemia, but Fredricksen did not offer up
any other medical opinion on his condition.
Fredricksen’s testimony, which at summary judgment
must be credited, makes clear that his leukemia-related
fatigue impairs his ability to walk to some degree. But
this testimony does not establish that the difficulties
experienced by Fredricksen were sufficiently severe to
rise to the level of a substantial limitation. To qualify as
disabling, a limitation on the ability to walk must be
“permanent or long term, and considerable compared to
the walking most people do in their daily lives.” EEOC v.
Sears, Roebuck & Co., 417 F.3d 789, 802 (7th Cir. 2005).
In Sears, for example, we held that a reasonable fact-
finder could conclude that the plaintiff’s neuropathy
substantially limited her ability to walk because there
was evidence that she could not walk the equivalent of
one city block without losing sensation in her right leg
and both feet, she walked with a cane and at times had
to balance against a wall to avoid falling, and she was
under a doctor’s recommendation to avoid excessive
walking. 417 F.3d at 793-94, 802. Moreover, the plaintiff
presented evidence that within two years of the
allegedly discriminatory acts her condition had deterio-
rated to the point that even walking distances as short
as 20 feet was difficult, demonstrating the enduring
nature of the limitation. Id. at 795, 802. In contrast, we
have held that a plaintiff’s testimony that she walks
No. 08-2060 11
“with difficulty,” without any medical corroboration or
evidence as to time or distance limitations, was insuf-
ficient to survive summary judgment, Squibb, 497 F.3d at
784-85, as was another plaintiff’s evidence that he tempo-
rarily wore a protective boot for diabetic ulcers and
experienced intermittent episodes of neuropathy, Scheerer
v. Potter, 443 F.3d 916, 920 (7th Cir. 2006). With these
benchmarks in mind, we simply cannot conclude that
Fredricksen’s evidence demonstrates anything more
than a moderate limitation on walking. He did not
present any medical evidence to corroborate his self-
assessment of being substantially limited in the ability to
walk (indeed, his own doctor disagreed with that assess-
ment), nor did he present evidence as to the expected
duration of his condition. Although Fredricksen may
occasionally get winded when walking up stairs or grow
tired while grocery shopping, he did not demonstrate
that his ability to walk diverged significantly from that
of the general population.
Fredricksen’s contention that he presented sufficient
evidence from which a factfinder could conclude that he
was substantially limited in the major life activity of
breathing suffers from the same failings. Fredricksen
testified that, beginning in early 2005, he began to have
difficulty breathing; he explained that because of his
enlarged spleen—a symptom of leukemia, he says—he
could not “get a full breath” and“under certain conditions”
was unable “to sustain any exertion in the way that an
average person would be able to.” He opined that his
trouble breathing is exacerbated by his chronic sinusitis
(an inflammation of the sinuses and their linings), a
12 No. 08-2060
condition he says goes “hand in hand” with chronic
lymphocytic leukemia. Fredricksen added that he takes
a prescription asthma and allergy medication to
ameliorate his breathing problems. His evidence on the
subject ends there.
As with walking, we see no basis to conclude from this
evidence that Fredricksen was substantially limited in the
major life activity of breathing. Vague assertions of diffi-
culty performing a major life activity do not create a
genuine issue of material fact, particularly when unac-
companied by any evidence that the limitation is sub-
stantial compared to that of other adults. See Burks v. Wis.
DOT, 464 F.3d 744, 756-57 (7th Cir. 2006). Fredricksen
makes much of the fact that his sinusitis is “chronic” and
therefore long-term, but he provided no evidence about
the severity of the condition or its specific effects on his
ability to breathe. Given the absence of any evidence
showing that his difficulty breathing was substantial, the
district court was correct to conclude that there was no
genuine factual dispute on the issue. See Scheerer, 443
F.3d at 919.
Because Fredricksen did not present sufficient evidence
that he was substantially limited in a major life activity, his
only hope of meeting the statutory definition of a “quali-
fied individual with a disability” was to demonstrate
that UPS regarded him as disabled. To succeed on his
“regarded as” claim, Fredricksen was required to demon-
strate that UPS was aware of his leukemia and believed
that the condition substantially limited him in a major
life activity. See Nese, 405 F.3d at 643. Fredricksen con-
No. 08-2060 13
tends that UPS regarded him as substantially limited in
the major life activity of working, but this argument
fails for several reasons. Chief among them is that
Fredricksen has never suggested that UPS perceived him
as being unable to perform any job or tasks other than “the
full range of . . . duties” of an aircraft mechanic. It is not
enough that UPS—if Fredricksen is correct—thought
that his leukemia prevented him from performing all of
the duties of the job he held. To the contrary, Fredricksen
could not demonstrate that UPS regarded him as sub-
stantially limited in the major life activity of working
unless he had evidence that the company believed he
was significantly restricted in the ability to perform a
broad range of jobs. See EEOC v. Schneider Nat’l, Inc., 481
F.3d 507, 511 (7th Cir. 2007); Kupstas v. City of Greenwood,
398 F.3d 609, 612-13 (7th Cir. 2005).
At all events, even if we assume that “aircraft mechanic”
encompasses a broad range of jobs, see Schneider, 481
F.3d at 511 (assuming, without deciding, that “the entire
spectrum of truck driving” might qualify as a broad range
of jobs), Fredricksen in fact offered no evidence to
support his speculation that UPS regarded him as sub-
stantially limited in the ability to work as an aircraft
mechanic. Fredricksen first points out that shortly after
revealing his preliminary diagnosis he was accused by
Crane of overinspecting aircrafts and then barred from
inspecting departing planes. Fredricksen says Crane’s
actions suggest that Crane sought to “undermine [him]
and dismantle his responsibilities as a mechanic as soon
as Crane was apprised of his leukemia.” But Fredricksen
has never explained how this evidence proves that
14 No. 08-2060
Crane regarded him as unable to work, and, if anything,
it seems to demonstrate that Crane actually perceived
him as performing unnecessary work beyond the scope
of his mechanic duties. Fredricksen also contends that
his various infractions were sanctioned disproportion-
ately—a pattern of “harassment,” he says—evidencing
that UPS believed he no longer was able to perform the
functions of his position. Again, however, he fails to
explain how this discipline—which notably includes a
“working suspension” for failing to work overtime as
directed—reflects a misperception by UPS that he was
substantially limited in his ability to work. A reasonable
factfinder could not conclude on this record that UPS
regarded Fredricksen as substantially limited in his
ability to work.
Because Fredricksen failed to demonstrate that he had
an impairment which substantially limited a major life
activity or that UPS regarded him as having such an
impairment, no reasonable factfinder could conclude
that he was disabled for purposes of the ADA. Although
this conclusion would not foreclose Fredricksen’s re-
taliation claim, his only mention of retaliation on appeal
is a passing reference in the heading of his opening
brief, and the claim is therefore waived. See Mema v.
Gonzales, 474 F.3d 412, 421 (7th Cir. 2007). Our resolution
of these issues makes it unnecessary to evaluate the
district court’s further conclusion that Fredricksen, dis-
abled or not, failed to produce evidence that he suffered
an adverse employment action that would be actionable
under the ADA.
No. 08-2060 15
III. CONCLUSION
For the foregoing reasons, we A FFIRM the judgment of
the district court.
9-8-09