Rooney, Daniel P. v. Koch Air, LLC ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-3862
DANIEL P. ROONEY,
Plaintiff-Appellant,
v.
KOCH AIR, LLC,
Defendant-Appellee.
____________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. IP IP01-1228-C-M/S—Larry J. McKinney, Chief Judge.
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ARGUED SEPTEMBER 14, 2004—DECIDED JUNE 6, 2005
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Before EASTERBROOK, MANION, and WOOD, Circuit Judges.
WOOD, Circuit Judge. Shortly after he began working for
Koch Air, LLC, Daniel Rooney injured his back. Five years
later, he injured it again. These injuries limited Rooney’s
ability to do his job; unable to reach a satisfactory arrange-
ment with the company, he eventually resigned. In
August 2001, Rooney sued Koch Air under the Americans
with Disability Act (ADA), 42 U.S.C. §§ 12101, et seq., and
Indiana state law, claiming that Koch Air had discriminated
against him and constructively discharged him on account
of his disability. He also alleged that Koch Air retaliated
against him in violation of Indiana law for his act of filing
2 No. 03-3862
a worker’s compensation claim. The case comes to us after
the district court granted Koch Air’s motion for summary
judgment, finding that Rooney had failed to submit evidence
showing that a similarly situated nondisabled employee had
been treated more favorably than he was. While this may be
so, we affirm for a more fundamental reason: he has not
shown that he is disabled for purposes of the ADA.
I
In January 1994, Rooney began working in the Customer
Assurance Department of Koch Air, a distributor of heating
and air conditioning products. A few months later, Koch Air
promoted him to the position of Manager of that depart-
ment. This position required Rooney to provide customers
with technical and warranty support. Often he could do this
by telephone, but he also had to make occasional trips to job
sites, where he would frequently need to access crawl
spaces, bend, kneel, lift, and work at unprotected heights.
In April 1994, only a few months after he was hired,
Rooney suffered an injury to his head, neck, and back that
required him to undergo a C-4 vertebrectomy and an inner
body fusion. After the surgery, he took a three-month leave
of absence from work. In August of that same year, Rooney
received a work clearance from the Indiana Center for
Rehabilitation Medicine that listed several work restrictions.
Notably, he was told to avoid crawl spaces and attics, to
alternate sitting with 15-30 minutes of standing and walk-
ing, and to avoid unprotected heights and repeated bending.
In 1995, Koch Air demoted Rooney to Assistant Customer
Assurance Manager, the position he held until he resigned.
David Boone, Rooney’s supervisor from 1996 until February
of 2000, testified that “because of Danny’s disabilities and
restrictions, he was made the ‘inside’ person.” In other
words, Koch Air placed Rooney in the lower job because of
his work restrictions. As an Assistant Customer Assurance
No. 03-3862 3
Manager, Rooney’s duties included addressing customer
satisfaction, training end-user customers, and troubleshoot-
ing problems with customers’ heating and air conditioning
units. William Sircy, Rooney’s manager after Boone resigned,
testified that Assistant Customer Assurance Mangers are
also required to make job-site visits, and on the site they
“must be able to lift, bend, enter crawl spaces, kneel, squat,
and climb stairs and ladders.”
Unfortunately, Rooney suffered a second back injury in
July 1999. This injury occurred while Rooney was working
at Koch Air, when he reached for a lower file cabinet drawer.
About eight months later, Rooney underwent a second
round of back surgery. After about a month’s recovery, he
returned to work at Koch Air. Rooney filed a worker’s com-
pensation claim for this injury.
After Rooney returned again to full-time work in May 2000,
he refused to perform any job-site visits with the exception
of two: one on May 8, 2000, and the other on July 31, 2000.
His refusal forced Sircy to do all of the job-site visits.
Finding that state of affairs problematic, Koch Air ordered
Rooney to undergo a functional capacity evaluation. The
results of the evaluation indicated that Rooney could per-
form all the functions required for job-site visits, including
being able to bend partially, squat, kneel frequently, and
crawl occasionally. On July 11, 2000, Suzanne Pursell, the
Operations Manager at Koch Air, sent Rooney an email
after receiving the functional capacity evaluation report. In
the email she reported that Koch Air was “pleased the
FCE’s [functional capacity evaluation] report indicated that
you could climb ladders on a limited basis, enter crawl spaces
on a limited basis, drive to customer sites and training
locations and perform other duties temporarily removed
from you [sic] job requirements.” She went on to explain
that the position of an Assistant Customer Assurance
Manager included the responsibility to travel to job sites to
provide technical assistance to dealers in “trouble shooting
4 No. 03-3862
of equipment on performance issues.” The email also
notified Rooney that his personal doctor, Dr. Peter Hall,
should review a copy of the report and “if he disagrees with
anything on this report he will need to send us his concerns
in writing.”
Dr. Hall responded in a brief letter dated July 18, 2000,
that acknowledged that he had reviewed the functional
capacity evaluation report. He commented that, in his
opinion, Rooney had reached “maximum medical recovery”
and that he estimated Rooney had a permanent partial
impairment of 20% of his body. In a second letter from
Dr. Hall dated August 8, 2000, which Rooney submitted for
his worker’s compensation claim, Dr. Hall indicated that
Rooney should not bend, but that he agreed with the func-
tional capacity report that Rooney could “occasionally kneel,
crawl, climb ladders and stairs.”
These letters set the stage for Rooney’s resignation. On
September 11, 2000, Sircy issued Rooney a written repri-
mand for disregarding his instructions to deliver a check for
training materials to Radio Shack. Rooney received an
employment counseling session as a result of this incident.
The next day, Rooney failed to report to work. Pursell called
Rooney and told him that he would need to submit a doctor’s
note for his absence. On either September 12 or 13, Rooney
gave Pursell a signed note announcing his refusal to per-
form any further job-site visits. In the note, Rooney wrote
that he was “not mentally or physically comfortable enough
at this time to put [himself] into a situation, which could
cause further damage.” On September 13, Rooney returned
to work and Pursell issued him a final written warning for
his failure to provide a doctor’s excuse for his absence.
Nevertheless, at the same time, in light of Rooney’s stated
position that he could no longer perform job-site visits, Koch
Air offered Rooney a new position that did not include that
task. On the negative side, the new position came with an
hourly rate of pay that was less than what Rooney had been
No. 03-3862 5
earning as an Assistant Customer Assurance Manager.
Rooney rejected the offer and resigned from Koch Air on
September 15, 2000. Shortly thereafter, he filed a complaint
with the Equal Employment Opportunity Commission
(EEOC) and two months later, after receiving his right-to-
sue letter, he brought this action in federal court in August
2001.
Discovery followed in due course. Critically for our pur-
poses, Rooney testified at his deposition that after his surgery
in March 2000, he was able to perform all major life activ-
ities such as sleeping, bathing, dressing himself unassisted,
exercising, and performing basic household tasks. While he
continued to experience some pain and discomfort while
performing some tasks and was not able to perform some
activities to the extent that he would have liked, he never
testified that he was unable to perform any major life
activities.
After discovery, Koch Air moved for summary judgment.
The district court found that Rooney had not identified a
similarly situated but nondisabled employee who was treated
more favorably and thus granted summary judgment for
Koch Air on all of Rooney’s ADA claims. It then dismissed
without prejudice Rooney’s remaining state law claims.
II
We review a district court’s grant of summary judgment
de novo, construing all facts and drawing all reasonable
inferences from those facts in favor of the non-moving party.
Koszola v. Bd. of Educ. of Chi., 385 F.3d 1104, 1107 (7th
Cir. 2004).
The ADA protects “qualified individuals with a disability”
from discrimination in their employment, the hiring pro-
cess, or promotions. 42 U.S.C. § 12112(a); see also Hoffman
v. Caterpillar, Inc., 256 F.3d 568, 571-72 (7th Cir. 2001).
6 No. 03-3862
The statute defines a “qualified individual with a disability”
as “an individual with a disability who, with or without
reasonable accommodation, can perform the essential func-
tions of the employment position that such individual holds
or desires.” 42 U.S.C. § 12111(8). Because Rooney lacked
direct evidence of discriminatory motive or intent, he relied
on the familiar burden-shifting method outlined in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), in
pursuing his claims. Id. at 802; see also DeLuca v. Winer
Indus., Inc., 53 F.3d 793, 797 (7th Cir. 1995). He therefore
must satisfy the four requirements for a prima facie case by
submitting evidence at the summary judgment stage that,
if believed, would show that: (1) he is disabled within the
meaning of the ADA; (2) he was meeting his employer’s
legitimate employment expectations; (3) he suffered an
adverse employment action; and (4) similarly situated
employees received more favorable treatment. Amadio v.
Ford Motor Co., 238 F.3d 919, 924 (7th Cir. 2001). If he is
able to prove all four elements, the burden shifts to Koch
Air to identify a non-discriminatory reason for its employ-
ment decision. Id.
Although both the district court and Rooney focused their
attention on the fourth element of the prima facie case, we
think it preferable here to start with the first one: whether
Rooney is “disabled,” in the special sense that the ADA uses
that term. If he is not entitled to protection under this
statute, then there is no need to reach the later parts of the
inquiry.
An individual can prove that she is disabled for ADA pur-
poses in one of three ways: (1) she has a physical or mental
impairment that substantially limits one or more major life
activities; (2) she has a record of such an impairment; or (3)
she is regarded as having such an impairment by her
employer. 42 U.S.C. § 12102(2); Sutton v. United Air Lines,
527 U.S. 471, 478 (1999). Rooney pursued his claims
against Koch Air under all three methods.
No. 03-3862 7
Not all impairments or conditions qualify as a disability
within the meaning of the ADA. Dalton v. Subaru-Isuzu
Auto., 141 F.3d 667, 675 (7th Cir. 1998). To be disabled, an
individual must be so limited in one or more major life ac-
tivities that she is impaired in her ability to “perform the
variety of tasks central to most people’s lives.” Toyota Motor
Mfg., Ky. v. Williams, 534 U.S. 184, 201 (2002). Impor-
tantly, the inability to perform a particular job does not
normally “constitute a substantial limitation in the major
life activity of working.” 29 C.F.R § 1630.2(j)(3)(i); see also
Mack v. Great Dane Trailers, 308 F.3d 776, 780 (7th Cir.
2002) (“An impairment that interferes with work-related
tasks, however, does not necessarily rise to the level of a
disability within the meaning of the ADA.”). This is the test
that we must apply to Rooney’s circumstances.
Rooney testified that from his second injury in July 1999
until his surgery in March 2000, he was unable to shower
unassisted and he experienced pain while performing many
normal tasks. He also testified, however, that after a brief
recovery period following his surgery, he was able to shower
unassisted, perform household chores, exercise, and since
January 2001, play sports with his children. We do not
intend to imply that Rooney’s injuries have not affected his
life and the lives of his family members, but that is not the
question before us. His own testimony leaves no doubt that
he is able to perform the tasks central to most people’s
lives, and this in itself dooms his claim that he is actually
suffering from a disability cognizable under the ADA.
Rooney also failed to demonstrate that he has a record of
a disability. 42 U.S.C. § 12102(2)(B). To succeed under this
theory, Rooney must again show that his impairment “sub-
stantially limits one or more major life activities.” 29 C.F.R.
§ 1630.2(k). Rooney did not submit evidence to this effect.
Koch Air had records of his injuries and surgeries, but as
explained above, these are not evidence that he was
statutorily disabled. Nor do Dr. Hall’s letters indicate that
8 No. 03-3862
Rooney’s impairment substantially limited major life activi-
ties. To the contrary, the records indicate that after his
surgery in 2000, Rooney was able to perform all major life
activities as well as the functions necessary for his job such
as occasional bending, lifting, and crawling.
Finally, Rooney offered no evidence to show that Koch Air
regarded him as disabled for ADA purposes. 42 U.S.C.
§ 12102(2)(C). “A person is ‘regarded as disabled’ when the
employer, rightly or wrongly, believes that she has an
impairment that substantially limits one or more major life
activities.” Cigan v. Chippewa Falls Sch. Dist., 388 F.3d 331,
335 (7th Cir. 2004) (citing Sutton v. United Air Lines, Inc.,
527 U.S. 471, 489 (1999)). If “the condition that is the sub-
ject of the employer’s belief is not substantially limiting,
and the employer does not believe that it is, then there is no
violation of the ADA under the ‘regarded as’ prong of the
statute.” Mack, 308 F.3d at 782. That is the case here. Koch
Air repeatedly communicated that it believed that Rooney
was able to perform all the functions necessary on job-site
visits, especially after it received the functional capacity
evaluation.
Even if Rooney were able to meet his burden of showing
that he is disabled within the meaning of the ADA, his
claim would founder at the second part of the McDonnell
Douglas inquiry, because performing job-site visits is an
essential part of the position of an Assistant Customer
Assurance Manager. The ADA protects only disabled indi-
viduals who can perform the essential functions of their
position. To determine whether a job function is essential,
we look to the employer’s judgment, written job descriptions,
the amount of time spent on the function, and the experi-
ence of those who previously or currently hold the position.
29 C.F.R. § 1630.2(n)(3); Basith v. Cook County, 241 F.3d
919, 927 (7th Cir. 2001). In this case, the job description of
the Assistant Customer Assurance Manager requires her to
“[t]roubleshoot all units, systems, and controls.” Pursell and
No. 03-3862 9
Sircy both testified that this included performing job-site
visits. Moreover, Rooney admitted that job-site visits were
a part of his responsibilities. The fact that Koch Air at-
tempted to ease Rooney’s discomfort immediately after his
injuries by decreasing the number of job-site visits he was
required to perform does not necessarily mean that these
visits were not an essential job function. Facilitating
injured workers’ return to their jobs should not expose em-
ployers to future litigation. In this instance, Koch Air took
the added step of offering Rooney a new position that would
not require him to perform job-site visits, albeit at a lower
rate of pay. Thus, even if Rooney could show that he was
disabled for ADA purposes, his own letter admits that he
could not, or would not, perform an essential function of the
job of Assistant Customer Assurance Manager.
Although Koch Air learned during discovery that Rooney
had not had a valid driver’s license since 1997 as a result of
multiple convictions for driving under the influence, we do
not place any weight on that fact. We know from McKennon
v. Nashville Banner Pub. Co., 513 U.S. 352 (1995), that after-
acquired evidence like this does not bar all relief, although
it can limit recoverable damages. (We see no distinction for
this purpose between an age discrimination claim like the
one in McKennon and an ADA claim.) At a minimum, this
late revelation would have limited any damages Rooney
could recover, because his job required him to drive com-
pany vehicles for job-site visits and customer training
sessions, and Koch Air naturally required employees
driving its vehicles to hold a valid license.
Rooney also alleged that Koch Air constructively dis-
charged him because of his disability. To prevail on a claim
for constructive discharge, an employee must show both
that a hostile work environment existed and “that the abusive
working environment became so intolerable that her resig-
nation qualified as a fitting response.” Pennsylvania State
Police v. Suders, 124 S. Ct. 2342, 2347 (2004); see also
10 No. 03-3862
McPherson v. City of Waukegan, 379 F.3d 430, 440 (7th Cir.
2004) (citing Suders, 124 S. Ct. at 2347). Beyond that,
Rooney had to demonstrate that the constructive discharge
was the result of his disability. EEOC v. Sears, Roebuck &
Co., 233 F.3d 432, 440 (7th Cir. 2000). Although Rooney’s
claim cannot succeed because of our conclusion with respect
to his disability, we note as well that on this record he has
not shown that the conditions of his employment even
approached the intolerable levels normally required in
constructive discharge cases. See Taylor v. Western &
Southern Life Ins. Co., 966 F.2d 1188, 1191 (7th Cir. 1992)
(finding constructive discharge where the employee’s boss
consistently made racial comments and on one occasion
held a gun to his head, took a photo, and later showed it at
a staff meeting while making racial jokes); Brooms v. Regal
Tube Co., 881 F.2d 412, 417 (7th Cir. 1989) (finding con-
structive discharge where the employee’s human resource
manager repeatedly showed her racist pornographic photos
and made threatening comments to her including a threat
to kill her). The record suggests, to the contrary, that Koch
Air made significant efforts to address Rooney’s expressed
concerns, for example by providing two special chairs, a
drafting table, and even offering another position within the
company.
Because we find that Rooney is not disabled for purposes
of the ADA and that he was unable to perform an essential
job function, we do not need to address the district court’s
finding that Rooney failed to identify a similarly situated
employee whom Koch Air treated differently.
III
For these reasons, the decision of the district court is
AFFIRMED.
No. 03-3862 11
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-6-05