Keith Powers v. Usf Holland, Incorp

In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2363
KEITH POWERS ,
Plaintiff-Appellant,
v.
USF HOLLAND , INC .,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 07 CV 246— Joseph S. Van Bokkelen, Judge.
A RGUED M ARCH 31, 2011—D ECIDED D ECEMBER 15, 2011
Before CUDAHY , POSNER , and MANION , Circuit Judges.
MANION , Circuit Judge. Keith Powers injured his
back while working for USF Holland, Inc., but following
a worker’s compensation leave, he successfully
returned to work as a long-haul truck driver and
worked without incident for two years. As the birth
of his child neared, Powers asked to switch from
his long-haul driver assignment to a city driver route.
After the switch, Powers began having problems with
his back and asked to switch back, but the collective
2 No. 10-2363
bargaining agreement did not allow for another change
within a year, so Holland denied Powers’s request.
Powers then took a medical leave of absence, but
later sought to return to work, again as a long-haul
driver, presenting Holland with a medical release
which limited him to “road driver work” and “limited
dock work.” Holland would not allow Powers to
return, saying both that it needed clarification on
his medical restrictions and that he could not return to
work as a truck driver unless he received a medical
release without restrictions.
Powers then sued Holland, alleging Holland violated
the Americans with Disabilities Act by enforcing a
100% healed policy, by discriminating against him,
and by failing to provide him with a reasonable accom-
modation. Specifically, Powers claimed that he is dis-
abled because his back injury rendered him sub-
stantially limited in the major life activity of working.
In addition, he claimed that Holland discriminated
against him and refused to accommodate his
disability by refusing to allow him to return to work
as a long-haul road driver with certain medical restric-
tions. The district court granted Holland summary
judgment and Powers appeals.
We conclude that Powers is not substantially limited
in the major life activity of working because he is
capable of long-haul driving. At most, the record
merely shows that Powers is unable to work as a
city driver because it involves short hauls and dock
No. 10-2363 3
work that requires him to frequently load and unload
cargo using a forklift or other lift mechanisms.
Therefore, Powers is not disabled within the meaning
of the ADA, and accordingly his claims cannot succeed.
We affirm.
I.
Powers began working in the spring of 1999 as a
truck driver for Holland. Holland is a freight transporta-
tion company which operates terminals throughout
the United States, including the one in South Bend,
Indiana, where Powers worked. Drivers working out
of Holland’s South Bend terminal are classified as
either city drivers or road drivers. City drivers
make short hauls and remain within a one-hundred-
mile radius of the South Bend terminal and also perform
dock work, primarily the loading of freight into and
out of the trucks with a forklift. Road drivers make
long hauls and may also load and unload freight.
However, since they drive longer distances across
state lines, they spend most of their time driving
and have substantially less dock work.
In January 2002, Powers injured his back after driving
a company truck over a rough patch of road. He was
off work and received worker’s compensation benefits
for about five months before Holland required him
to submit to an independent medical examination. Dr.
Marshall Matz examined Powers and concluded that
he was “capable of resuming his usual gainful employ-
4 No. 10-2363
ment activity without limitations or restriction.” Based
on Dr. Matz’s assessment of Powers, Holland ceased
Powers’s worker’s compensation benefits effective
May 23, 2002.
Powers returned to work as a road driver in June
2002 and worked for two years without issue. But
in March 2004, Powers requested a switch to a city
driver position because his wife was pregnant and
due to give birth in August, and because his ailing
father needed help with his farming business. Holland
granted Powers’s request to work as a city driver. After
the switch, Powers experienced difficulty sitting in
and getting in and out of the forklift to do the sub-
stantial dock work required of city drivers. As a result,
he had problems getting out of bed and bending over.
Only one month after making the switch, Powers asked
to be placed back in the road driver position. But
under the governing collective bargaining agreement,
drivers were only allowed one transfer per twelve-
month period and accordingly Holland denied Powers’s
request.
In August 2004, Powers’s supervisor reprimanded him
for working slowly and after Powers explained that
he was working as fast as he could with his back bother-
ing him, Powers was told he would be subject to disci-
plinary action if he continued to work while experienc-
ing pain. Powers left work that day and on August
29, 2004, Powers’s physician, Dr. Magill, recommended
that Powers discontinue work until further no-
No. 10-2363 5
tice. Holland then placed Powers on unpaid medical
leave. A year and a half later, on December 12, 2005,
Powers showed up at the Holland South Bend
terminal and requested to return to work. He brought
with him a release obtained from Dr. Magill,
which provided that Powers could return to work
on January 3, 2006, with the following restrictions:
“(1) limit hours of dock work; (2) avoid dock plates
as much as possible; (3) tractor needs to be supplied with
air seat, suspension, cab, and (4) road driver work only.”
Powers acknowledged that he helped Dr. Magill
write these restrictions.
The supervisor on duty when Powers arrived at
the South Bend terminal sent him to the Wipperman
Occupational Health center for a return to work
and fitness for duty examination, where on December
13, 2005, Dr. Bergin evaluated Powers. Dr. Bergin
told Powers that she needed to review his
medical records, but before she received the records,
Holland’s Human Resources Manager, Stacey
VandeVusse, learned of Powers’s request to return
to work and reviewed the restrictions noted by
Dr. Magill. VandeVusse told Dr. Bergin that the return-
to-work physical was premature. According to
Dr. Bergin, she also indicated that Powers could
not return to work until he was released without restric-
tions. On December 21, 2005, Kurt Kopczynski, the South
Bend Terminal Manager, also relayed to Powers Hol-
land’s position that he would not be able to return
to work with restrictions.
6 No. 10-2363
VandeVusse later contacted Powers and told him
that Holland needed additional information on the
restrictions. Specifically, VandeVusse noted that
all drivers performed dock work and that Holland
needed clarification concerning what “limited hours of
dock work” meant, especially in light of its
apparent conflict with the statement “road driver
work only.” VandeVusse then asked Powers to complete
a “Request for Accommodation” form and to return it
to her by February 2006. She also provided a job analysis
worksheet for the city driver position.
On January 30, 2006, Powers wrote to VandeVusse,
informing her that his physician’s office “does not
do that type of examination,” and that if Holland re-
quired him to have a physician complete the “Request
for Accommodation” form, it would have to
schedule and pay for the medical examination and
pay Powers his current hourly wage rate for the
time spent attending the medical examination.
Powers also requested additional time to submit
the required paperwork. In response, VandeVusse
told Powers that he could have another month to com-
plete the paperwork and explained that he did not need
another examination— he simply needed to have his
physician provide clarification regarding the limitations
by completing the form. Powers never returned the
completed Request for Accommodation form to Holland,
but contends that Holland was not truly seeking clarifi-
cation given its statements that he needed a full release
to return to work. Powers attempted to return to work
No. 10-2363 7
again as a road driver in May 2007, but Kopczynski
refused his request and reiterated that Powers would not
be allowed to return to work until he had no medical
restrictions. Powers currently remains on unpaid medi-
cal leave of absence from Holland.
Powers eventually sued Holland alleging Holland had
violated the ADA by enforcing a 100% healed policy, by
discriminating against him, and by failing to provide
him with a reasonable accommodation. Powers
also alleged state law claims of negligent infliction of
emotional distress and retaliatory discharge.
Holland moved for summary judgment on all of
Powers’s claims. The district court initially granted
Holland’s motion in part and denied it in part. Specifi-
cally, the district court concluded that Powers was
not “disabled” within the meaning of the ADA and
therefore that Holland was entitled to summary judg-
ment on Powers’s disparate treatment and reasonable
accommodation claims. However, the court deter-
mined that Powers had presented sufficient
evidence that Holland had applied a 100% healed policy
to him and thus that Holland was not entitled to sum-
mary judgment on Powers’s per se discrimination
claim. The district court also granted Holland summary
judgment on Powers’s state law claims. Holland moved
for reconsideration on the 100% healed policy claim,
noting that because Powers was not disabled within
the meaning of the ADA, he could not present a per
se discrimination claim. The district court agreed and
8 No. 10-2363
then granted Holland summary judgment on this sole
remaining claim. Powers appeals.
II.
On appeal, Powers argues that the district court
erred in granting Holland summary judgment on
his ADA claims.1 Summary judgment is appropriate
if there is “no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(a). We review the district court’s
decision on summary judgment de novo, viewing
the evidence in the light most favorable to Pow-
ers. Wackett v. City of Beaver Dam, Wis., 642 F.3d 578, 581
(7th Cir. 2011).
Before the district court, Powers presented three types
of ADA claims: disparate treatment, failure to accommo-
date, and per se discrimination based on Holland’s
100% healed policy.2 To maintain any of these three
claims, though, Powers must be disabled within
the meaning of the ADA. Miller v. Ill. Dept. of Trans.,
1
Powers does not challenge the district court’s ruling on his
state law claims.
2
On appeal, Powers attempts to also argue a retaliation claim,
but his EEOC charge did not include a retaliation claim, nor did
he argue such a claim before the district court, and therefore he
has waived any such claim. Hottenroth v. Village of Slinger,
388 F.3d 1015, 1033 (7th Cir. 2004).
No. 10-2363 9
643 F.3d 190, 195 (7th Cir. 2011); see also Henderson
v. Ardco, Inc., 247 F.3d 645, 653 (6th Cir. 2001)
(stating that all courts “agree that a 100% rule is imper-
missible as to a disabled person— but one must first be
disabled”). Merely having a physical injury or a
medical condition is not enough. Burnett v. LFW, Inc.,
472 F.3d 471, 483 (7th Cir. 2006); Christian v. St.
Anthony Medical Center, Inc., 117 F.3d 1051, 1053 (7th
Cir. 1997). Rather, to be disabled within the meaning
of the ADA, the plaintiff must have “(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) [be] re-
garded as having such an impairment.” 42 U.S.C.
§ 12102(2) (2006).
On appeal, Powers argues that he is disabled under
both the first and third prongs— in other words, that he
has both an actual physical limitation in the major
life activity of working and that Holland has regarded
him as having such an impairment. In addition to
the major life activity of working, Powers also
makes passing reference on appeal to the major
life activities of “lifting, sitting, and/or bending.” Appel-
lant Brief at 28. But in opposing Holland’s summary
judgment motion before the district court, Powers
merely argued that he was substantially limited in
the major life activity of working. Therefore, any argu-
ment regarding these other activities is waived.
Fredricksen v. United Parcel Serv., Co., 581 F.3d 516,
521 (7th Cir. 2009). Moreover, even assuming Powers
10 No. 10-2363
had not waived the argument, the record is in-
sufficient to show that Powers’s back injury substantially
limited his ability to lift, sit, or bend. The interpretive
regulations define “substantially limits” as
“[s]ignificantly restricted as to the condition, manner
or duration under which an individual can perform
a particular major life activity as compared to
the condition, manner, or duration under which
an average person in the general population can
perform the same major life activity.” 29 C.F.R.
§ 1630.2(j)(1)(ii). In this case, the record shows
that Powers engaged in many activities requiring lifting,
sitting and bending. Specifically, Powers testified that
he didn’t have any trouble lying flat or walking, that
he could perform most household chores and
bathe himself, and that he could sit comfortably in
a chair for at least two hours. Powers also testified
that he was presently employed as a warehouse
foreman for his father’s agricultural company where
he had been performing work that was more physically
demanding than the work he would be doing at Hol-
land, and which included cleaning out bins, running
equipment, and driving trucks. The evidence thus
does not show that Powers was substantially more
limited than the average person in lifting, sitting
or bending. See, e.g., Moore v. J.B. Hunt Transport, Inc.,
221 F.3d 944, 951 (7th Cir. 2000) (holding that the plain-
tiff did not present sufficient evidence that
arthritis substantially limited his ability to walk
when compared with the general population based
No. 10-2363 11
on the plaintiff’s testimony concerning his activities).
Accordingly, our focus is solely on whether Powers is
(or was viewed by Holland) as substantially limited
in the major life activity of working.
A. “Actually Disabled”
To be substantially limited in the major life activity
of working means that a claimant is “significantly re-
stricted 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 3 .” 29 C.F.R. § 1630.2(j)(3)(I). A class of jobs
includes “the number and types of jobs utilizing similar
training, knowledge, skills or abilities, within
[the employee’s] geographical area, . . . .” 29 C.F.R.
§ 1630.2(j)(3)(ii)(B). A broad range of jobs includes
“the number and types of other jobs not utilizing
similar training, knowledge, skills or abilities within
that geographical area.” 29 C.F.R. § 1630.2(j)(3)(ii)(C).
Powers contends that the specific limitations noted by
Dr. Magill establish his inability to work as a truck driver
and that this is a class of jobs, and that as such he is
3
While this circuit and the EEOC have concluded that
“working” is a major life activity, the Supreme Court has
reserved judgment on that question. See E.E.O.C. v. Schneider
Nat., Inc., 481 F.3d 507, 511 (7th Cir. 2007) (citing Sutton v.
United Air Lines, Inc., 527 U.S. 471, 491 (1999)).
12 No. 10-2363
substantially limited in the major life activity of working.4
In support of his position, Powers relies on Best v. Shell
Oil Co., 107 F.3d 544 (7th Cir. 1997). In Best, this court
held that “truck driver” was a class of jobs and that the
plaintiff presented sufficient evidence such that a “reason-
able trier of fact could conclude that [the plaintiff’s]
bad knee substantially limited his ability to work as a truck
driver.” Id. at 548.
Best, though, is readily distinguishable from the case
before us. In Best, the plaintiff’s condition made it pain-
ful to bend his “knee more than 90 degrees inward toward
his body,” rendering him unable to drive most of the trucks
in the defendant’s fleet. Id. at 545. One of the defendant’s
own doctors concluded that the plaintiff “would have
difficulty maintaining this position at this time” and
should “consider alternative work duties on a fulltime basis
for the future.” Id. at 548. And a Driver Performance Evalua-
tion of Best concluded that the plaintiff “was not safe
and should not be driving.” Id. Based on this evidence,
the Best court concluded that “a reasonable trier of
fact could find that Best’s bad knee substantially
limited his ability to work as a truck driver.” Id.Conversely, the evidence in this case is insufficient to
show that Powers is unable to drive trucks. Powers’s
4
Powers does not argue that he is limited in a broad range of
jobs, nor would such an argument succeed given that Powers is
working in another job which, as Powers himself testified, is
more physically challenging than the work he would be doing
at Holland.
No. 10-2363 13
restrictions— i.e., “limit hours of dock work” and “avoid
dock plates as much as possible” — relate to dock work and
not truck driving, and we have already held that “forklift
operation” was not alone “broad enough to constitute
a class of jobs.” Contreras v. Suncast Corp., 237 F.3d 756,
763 (7th Cir. 2001). Powers’s third restriction, that
the “tractor needs to be supplied with air seat, suspension,
cab,” is also insufficient to show that Powers would
be barred from driving trucks because, as Powers testified
in his deposition, the trucks Holland supplies already
meet those requirements. This fact again contrasts
sharply with Best, where the evidence was the opposite:
the plaintiff in that case could not operate most of
the trucks in the defendant’s fleet, indicating that he would
face the same difficulty with other employers. Finally,
the fourth “restriction,” rather than establishing a limita-
tion on truck driving, established that Powers is able
to operate trucks, stating “road driver work only.”
Powers also did not present any evidence that his
infirmities prevent him from other truck driving jobs
or that most other truck driving jobs required dock work.
In fact, the evidence is to the contrary: When asked in
his deposition: “If you were able to find a job that was
a line haul position only, kinda like the one you had
back at Roadway, where you really didn’t have to do any
dock work, do you believe that you would be able
to physically perform that job?” Powers answered
“yes.” Thus, the evidence cannot support the
conclusion that Powers is unable to work in the class of
jobs as a truck driver; at best, the evidence shows only
that Powers would not be able to perform truck driving
14 No. 10-2363
jobs that require a significant amount of dock work.5
However, “[i]t is now well-established that an inability
to perform a particular job for a particular employer is
not sufficient to establish a substantial limitation on
the ability to work; rather, the impairment must substan-
tially limit employment generally.” Homeyer v.
Stanley Tulchin Assoc., Inc., 91 F.3d 959, 961 (7th Cir. 1996).
This case thus compares more closely with Baulos
v. Roadway Express, Inc., 139 F.3d 1147 (7th Cir. 1998).
In Baulos, Baulos and Schneider sued Roadway Express
claiming they were disabled because they were substan-
tially limited in the major life activity of working and
that Roadway failed to accommodate their disabilities
in violation of the ADA. This court held that the
plaintiffs were not disabled within the meaning of
the ADA because their impairments only prevented
them from performing a specific job for Roadway, labeled
“sleeper duty” truck driving. A “sleeper duty” truck driver
worked with a partner and while one person drove, the
5
In arguing that he is limited in the major life activity of
working, Powers also relies on the deposition testimony
provided by Dr. Ghanayem in Powers’s worker’s compensation
case against Holland. Powers’s reliance on Dr. Ghanayem’s
testimony, however, is misplaced. Dr. Ghanayem examined
Powers in October 2004—more than a year before Powers
received a medical release from Dr. Magill. Dr. Magill’s more
current release concludes that Powers can drive a truck, with the
four restrictions noted above, and Powers cannot establish
otherwise by relying on the older medical opinion provided by
Dr. Ghanayem.
No. 10-2363 15
other would sleep for five to eight hours in an
adjacent sleeper cab of the truck. Id. at 1149. Both plaintiffs
suffered medical problems when working on sleeper
duty (limited sleep disorder and related problems),
which made them unsafe to drive. Both unsuccessfully
sought reassignment to single-man trucks.6 Id. at 1150.
This court held that Baulos and Schneider were not dis-
abled within the meaning of the ADA because
their inability to drive sleeper trucks did not “disqualify
them from a similar class of truck driving jobs that do
not include sleeper duty.” Id. at 1153. In reaching
this conclusion, the Baulos court distinguished Best,
noting that in Best, the plaintiff presented sufficient
evidence from which a jury could find that the
plaintiff would “face the same clutch and seat problems
in many truck driving positions (class of jobs).” Id. at
1152. But “[u]nlike in Best, Roadway and the doctors
that it relied on have not indicated that plaintiffs would
experience the same disqualification in other truck driving
positions.” Id. Thus, in Baulos we concluded that the
employer was entitled to summary judgment because
the plaintiffs did not establish that they were substantially
limited in the major life activity of working.
Accordingly, while Best makes clear that truck driving
is a class of jobs, Baulos clarifies that to prevail on a
claim that he is substantially impaired in the major
life activity of working, a plaintiff must present evidence
6
Because of the union’s seniority scheme, Roadway could not
exempt the plaintiffs from all sleeper duty. Id. at 1149-50.
16 No. 10-2363
that, if believed, would support the conclusion that he is
unable to work as a truck driver in general. Merely
being unable to work as a specific type of truck driver,
or for a specific employer, is not enough. Our sister
circuits agree and have likewise held that a plaintiff is
not disabled merely because he cannot perform a
specific truck-driving job. See McLain v. Andersen Corp.,
567 F.3d 956, 968 (8th Cir. 2009); Collado v. United
Parcel Serv., Co., 419 F.3d 1143, 1157 (11th Cir. 2005);
Wood v. Crown Redi-Mix, Inc., 339 F.3d 682, 686 (8th
Cir. 2003); EEOC v. J.B. Hunt Transp., Inc., 321 F.3d 69, 76-
77 (2d Cir. 2003); Black v. Roadway Express, Inc., 297
F.3d 445, 454 (6th Cir. 2002); Duncan v. Washington Metro-
politan Area Transit Authority, 240 F.3d 1110, 1115 (D.C. Cir.
2001); Marinelli v. City of Erie, PA, 216 F.3d 354, 366 (3d Cir.
2000).
Here, at best Powers has shown only that he cannot
work as a truck driver in positions requiring signi-
ficant dock work. In fact, the evidence was that Powers
worked as a long-haul driver for two years without
any problems and that his problems arose only after
he transferred to city driver work. In short, there is
no evidence in the record th at Pow ers’s
impairment prevents him from working as a truck
driver in general. And it is Powers’s burden to present
such evidence. DePaoli v. Abbott Lab., 140 F.3d 668, 672
(7th Cir. 1998). Accordingly, based on this record,
we cannot conclude that Powers is actually impaired in
the major life activity of working.
No. 10-2363 17
B. “Regarded As” Disabled
Alternatively, Powers maintains that even if he does
not have an actual substantial impairment in the major life
activity of working, Holland regarded him as having such
an impairment. Under the “regarded as” prong,
the employer must believe, rightly or wrongly, that
the employee has an impairment that substantially limits
one or more major life activities. Kupstas v. City of Green-
wood, 398 F.3d 609, 612 (7th Cir. 2005). Under the
“regarded as” theory of disability, then, Powers must
show that Holland believed he was substantially limited
in his ability to perform the major life activity of working.7
7
Congress changed these standards when it enacted the ADA
Amendments Act of 2008 (“ADAAA”). Under the ADAAA, a
person may be “regarded as” disabled “because of an actual or
perceived physical or mental impairment whether or not the
impairment limits or is perceived to limit a major life activity.”
42 U.S.C. § 12102(3). The amendments, however, did not take
effect until January 1, 2009, so we apply the law in effect at the
time of the alleged violations. Fredricksen, 581 F.3d at 521
n.1. Moreover, even if the ADAAA did govern, Powers’s
claim would still be doomed because the ADAAA clarified that
an individual “regarded as” disabled (as opposed to actually
disabled) is not entitled to a “reasonable accommodation.”
42 U.S.C. 12201(h). (This court had left that question open
under the ADA. See Cigan v. Chippewa Falls School Dist., 388
F.3d 331, 335 (7th Cir. 2004).) And Powers’s ADA claims
all presume that Holland would be required to accommodate
him in some way, i.e., by transferring him to a different job
or limiting the amount of dock work he must perform.
(continued...)
18 No. 10-2363
Id. And to be regarded as substantially limited in the
ability to work, Powers needed to present some evidence
that Holland “regarded him as limited in his ability to
perform not merely one particular job but a class or broad
range of jobs.” Miller, 643 F.3d at 195. But there is no
such evidence in the record; rather, the evidence merely
shows that Holland would not allow Powers to return
to work as a city driver, either based on his ambiguous
work restrictions or because Holland required Powers to
be released without restrictions, i.e., its 100% healed
policy.8
Powers responds that Holland’s 100% healed policy
itself establishes that it regarded Powers as disabled.9 In
7
(...continued)
Therefore Powers would fare no better under the ADAAA.
8
Holland claims that it did not have a 100% healed policy, but
as noted above, there was evidence that VandeVusse told Dr.
Bergin that Powers would not be returned to work until he was
released without restrictions. And Kurt Kopczynski, the South
Bend Terminal Manager, also relayed this information to
Powers, telling him he would not be able to return to work with
restrictions. Additionally, Neil London, Holland’s Labor
Relations Manager, testified in his deposition that Holland’s
policy was that you “cannot return to work from an on-the-job
injury without full release to return to work.” Thus, as the
district court concluded, Powers presented sufficient evidence
that Holland applied a 100% healed policy.
9
In arguing that Holland regarded him as disabled, Powers
also relies on the deposition testimony provided by Dr.
(continued...)
No. 10-2363 19
support of his position, Powers cites decisions from
other circuits which have held that a “100% healed”
policy could be sufficient to establish that an employer
“regarded” the plaintiff as substantially limited in
the major life activity of working. See, e.g., Jones v.
UPS, Inc., 502 F.3d 1176, 1188-89 (10th Cir. 2007); Johnson
v. Paradise Valley Unified Sch. Dist., 251 F.3d 1222, 1226
(9th Cir. 2001); Henderson, 247 F.3d at 653. This circuit
has yet to specifically address that question, but these
holdings seem inconsistent with the Supreme Court’s
conclusion that “an employer is free to decide that physical
characteristics or medical conditions that do not rise to
the level of an impairment — such as one’s height, build,
or singing voice — are preferable to others, just as it is free
to decide that some limiting, but not substantially limiting,
impairments make individuals less than ideally suited for
a job.” Sutton v. United Air Lines, Inc., 527 U.S. 471, 490-
91 (1999). In other words, a particular impairment may
disqualify a person for a specific job that the employer
needs to fill. Without some evidence that the employer
9
(...continued)
Ghanayem in Powers’s worker’s compensation case against
Holland. But as noted above, Dr. Ghanayem examined Powers
more than a year before Powers showed up at Holland’s
terminal with a medical release from Dr. Magill. Additionally,
there is no evidence that the decision-makers in this case knew
anything about Dr. Ghanayem’s deposition testimony. There-
fore, Dr. Ghanayem’s opinion cannot create a reasonable
inference that Holland regarded Powers as substantially limited
in the major life activity of working.
20 No. 10-2363
actually viewed the impaired (but not disabled) individual
as unable to work for other employers in a class of jobs
or a broad range of jobs, a 100% healed policy merely
shows that this employer’s preference is to hire someone
without any impairments. Under the ADA that would
not be a violation unless the individual is actually disabled.
Id. See also Christian, 117 F.3d at 1053 (“The Act is not a
general protection of medically afflicted persons. . . . [I]f
the employer discriminates against them on account
of their being (or being believed by him to be) ill,
even permanently ill, but not disabled, there is no viola-
tion.”).
From a business perspective, a 100% healed policy
would likely be a disadvantage economically because
an employer would be losing someone who might be
the best person for the job. Also, if the impairment
were such that the employee is actually disabled, then
the employer might be subject to per se liability under
the ADA. See Hendricks-Robinson v. Excel Corp., 154
F.3d 685, 698 (7th Cir. 1998); McGregor v. Nat’l R.R. Passen-
ger Corp., 187 F.3d 1113, 1116 (9th Cir. 1999); Henderson, 247
F.3d at 653. (The risk of such a policy is even greater (if not
absolute) now that the ADAAA has changed the definition
of “regarded as” disabled.) On the other hand, an employer
in the trucking industry might decide that it does not want
to risk one of its drivers causing an injury and creating tort
liability. This later reasoning is consistent with Holland’s
Labor Relations Manager’s testimony that it has adopted
this 100% healed policy because “they are in a safety
sensitive industry.” We said in E.E.O.C. v. Schneider Nat.,
Inc., 481 F.3d 507 (7th Cir. 2007), that there is nothing
No. 10-2363 21
illegal about being more risk-averse than others in the
industry and that the defendant “is entitled to determine
how much risk is too great for it to be willing to take.”
Id. at 510. In that case, the employer would not allow a
truck driver with neurocardiogenic syncope to return
to work and the employee claimed an actual or perceived
disability in the major life activity of working. Id.We reasoned that the impairment did not substantially
limit the plaintiff in the major life activity of working
and that the evidence was insufficient to show that Schnei-
der regarded the plaintiff as limited in the major
life activity of working. We reasoned that “there [was]
no evidence that Schneider considers neurocardiogenic
syncope to impair any ‘life activity’ other than driving
a truck for Schneider, and perhaps for some other
truck companies (we do not know whether there are any)
that like Schneider have safety standards higher than the
minimum required by the federal government.” Id. at 511.
We concluded “that is too esoteric a capability to be judged
a ‘major’ life activity.” Id. Similarly, in this case, there is
no evidence that Holland considered Powers’s impair-
ments as affecting any life activity other than working as a
city driver for Holland. Under Schneider, that is not enough.
Regarding Holland’s 100% healed policy, in addition to
the Supreme Court’s reasoning in Sutton and this court’s
precedent in Schneider and Baulos, we find the Tenth
Circuit’s reasoning in Dillon v. Mountain Coal Co., LLC, 569
F.3d 1215 (10th Cir. 2009), more consistent with the facts of
this case. In Dillon, the employer had a 100% healed (no
restrictions) policy and its application prevented the
plaintiff from returning to work in the defendant’s coal
22 No. 10-2363
mine. Id. at 1219. The plaintiff argued that the employer
thus regarded him as disabled in the major life activity of
working, either in a “class of jobs” (mining jobs) or in a
“broad range of jobs.” Id. at 1220. The Tenth Circuit
rejected this argument because the plaintiff had not
presented any evidence concerning “the number and types
of jobs utilizing similar training, knowledge, skill or
abilities” in the geographic area, as the EEOC regulations
require. Id. Without such evidence, the court reasoned that
“[t]he policy, however, only speaks to whether Mountain
Coal regarded [the plaintiff] as substantially limited in his
ability to work at West Elk Mine.” Id. The court then
concluded that “while a jury could infer that Mountain
Coal considered [the plaintiff] as substantially limited in
his ability to work at West Elk Mine, there was no evidence
that Mountain Coal regarded him as substantially limited
in his ability to work outside of West Elk Mine, or that the
jobs within the mine could properly be characterized as a
‘class of jobs’ or a ‘broad range of jobs.’ ” Id.Similarly, in this case, Powers has not presented any
evidence that Holland viewed him as limited in his ability
to work for an employer other than Holland, nor has
Powers shown that the jobs at Holland constituted a “class
of jobs” or a “broad range of jobs.” While truck driving in
general is a broad class of jobs, the two truck driving jobs
at Holland, especially city driving, require dock work. This
condition significantly narrows the type of truck driving
needed, compared to the general classification of truck
driving. Cf. Baulos, 139 F.3d at 1152-53. Or at least based on
this record, we cannot conclude that Holland’s two truck-
driving positions constitute a class of jobs: Like Dillon, the
No. 10-2363 23
record is devoid of any evidence addressing the number of
truck driving jobs available (or unavailable) to Powers. At
best then, Holland’s 100% healed policy, like the policy in
Dillon, only shows that Holland regarded Powers as
substantially limited in his ability to work as a truck driver
for Holland. That is not enough for Powers to qualify as
disabled under the “regarded as” prong of the ADA.
In sum, it was Powers’s burden to come forward with
evidence that could satisfy his ultimate burden of showing
an ADA-recognized disability. DePaoli, 140 F.3d at 672.
Powers has not done so, though, and without evidence that
he is disabled, as defined by the ADA, Powers cannot
succeed on a disparate treatment, per se discrimination, or
reasonable accommodation claim. Accordingly, Holland is
entitled to summary judgment on all of Powers’s ADA
claims.10
10
Powers is still on leave from Holland and, as Holland’s
attorney confirmed at oral argument, Powers could still submit
a doctor’s report and seek to return to work —Holland just needs
clarification on his limitations. Powers intimates that he never
attempted to have a doctor clarify his restrictions because it
would be futile, since Holland told him that he needed to be
released without restrictions, i.e., 100% healed. During this
litigation, though, Holland maintained that it does not apply a
100% healed policy, and under the ADAAA, which would now
apply, it would be risky for Holland to apply such a policy.
And a reverse course by Holland now might also be evidence
of retaliation or pretext. Thus, should Powers truly wish
to return to work, he need only obtain the clarification Holland
requested.
24 No. 10-2363
III.
Powers did not present sufficient evidence of an impair-
ment that substantially limited his ability to perform the
major life activity of working, nor did he present evidence
from which a jury could reasonably conclude that Holland
perceived him as having such an impairment. Rather, at
best, the evidence shows that Powers’s infirmities pre-
vented him from performing one specific job for Hol-
land —city driver. That is insufficient to qualify as disabled
under the ADA. Because Powers is not disabled within the
meaning of the ADA, his discrimination, per se discrimina-
tion, and reasonable accommodation claims fail and
Holland is entitled to summary judgment. We A FFIRM .
12-15-11