Pamela Hanson v. Caterpillar, Incor , 688 F.3d 816 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-3292
P AMELA S. H ANSON,
Plaintiff-Appellant,
v.
C ATERPILLAR, INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 09 CV 4809—James B. Zagel, Judge.
A RGUED M ARCH 29, 2012—D ECIDED A UGUST 3, 2012
Before K ANNE, R OVNER, and W ILLIAMS, Circuit Judges.
K ANNE, Circuit Judge. Pamela Hanson brought this
action alleging that her employer, Caterpillar, Inc., fired
her in violation of the Americans with Disabilities Act
(ADA), 42 U.S.C. § 12101 et seq. The district court granted
summary judgment for Caterpillar, reasoning that
Hanson was not a “qualified individual with a disabil-
ity” as defined by the ADA. We affirm.
2 No. 11-3292
I. B ACKGROUND
On October 11, 2004, Caterpillar hired Pamela Hanson
as a supplemental assembler for its manufacturing plant
in Aurora, Illinois. Under the plant’s collective bar-
gaining agreement, supplemental employees work forty
hours per week on a temporary but indefinite basis.
They are not entitled to seniority rights and benefits in
the same way as full-time employees. Practically speaking,
this means that supplemental employees are last in line
for job reassignments, which are generally awarded
based on seniority. As an assembler on the 980-tractor
line, Hanson attached steering shafts, hydraulic hoses,
toolboxes, and side panels to the tractor cab. These tasks
required Hanson to climb onto the tractor, enter and
exit tight spaces, turn her head and neck from side-to-
side, and carry and install equipment weighing between
five and fifteen pounds. Hanson conceded that some
of these tasks were physically demanding.
Just two weeks into her stint as an assembler, Hanson
injured her neck while installing a hydraulic hose.
Hanson did not seek medical attention nor did she im-
mediately report her injury to plant management.
Rather, Hanson claims that a union representative cau-
tioned that reporting her injury to a supervisor could
result in termination. Despite the warning, Hanson
finally disclosed her injury to management on Decem-
ber 3, 2004, five weeks after the injury. That same day,
Hanson visited Dr. William Roggenkamp, the com-
pany’s full-time physician. During the examination,
Dr. Roggenkamp ordered x-rays, which revealed marked
No. 11-3292 3
spurring between her fourth and fifth cervical vertebrae
and arthritis in the front of her neck. She was then
given over-the-counter pain medicine, referred to onsite
physical therapy, and placed on the following medical
restrictions: (1) no lifting over ten pounds; (2) no
pushing or pulling over ten pounds with either arm; (3)
no rotating or bending her neck; and (4) no overhead
work. Because of these restrictions, both Al Kitterman,
Hanson’s supervisor, and Dee Sheffer, Move Coordinator,1
agreed to temporarily place Hanson on light-duty
work, filing papers in the location of the plant known
as “the cage.” Hanson apparently performed this work
without pain.
Hanson visited Dr. Roggenkamp again on December 6
and 7. Although Hanson suggested that she was feeling
better, Dr. Roggenkamp noted that her neck pain
persisted when she bent forward to read and at night.
Based on this evaluation, Dr. Roggenkamp diagnosed
Hanson with acute cervical syndrome with significant
calcification between the fourth and fifth vertebrae.
He then referred Hanson to Dr. Thomas McGivney, a
local spine specialist. On December 9, Dr. McGivney
examined Hanson and recommended a regimen of
physical therapy and a set of slightly less onerous
medical restrictions than those imposed by Dr. Rog-
genkamp (the two differences being that Hanson was
1
As Move Coordinator, Sheffer was charged with deter-
mining whether Hanson’s medical restrictions permitted her
to work in another position at the plant.
4 No. 11-3292
restricted from lifting more than twenty pounds and
she was not restricted from rotating or bending her
neck). Despite learning of Dr. McGivney’s relaxed re-
strictions, Dr. Roggenkamp nonetheless kept his restric-
tions in place after noting only limited improvement
during subsequent examinations on December 13, 21,
and January 3.
On January 4, Hanson returned to Dr. McGivney’s
office. Dr. McGivney reaffirmed the medical restrictions
he had previously suggested. The next day, Dr. Rog-
genkamp, after conferring with Dr. McGivney, agreed
to reduce Hanson’s restrictions such that she was now
only restricted from lifting anything heavier than
twenty pounds.
Hanson’s temporary position in “the cage” ended, and
on January 19, she was transferred to a sub-assembly
group responsible for putting bolts in washers and screws
inside of caps. The parties dispute whether this new
position was temporary. Sometime after January 24,
Hanson returned to the 980-tractor assembly line in a
different and less demanding position than which she
was initially hired. Again, the parties dispute whether
this position was temporary. In the meantime, Hanson
continued periodic treatment with Dr. Roggenkamp,
but the only substantive change during those visits was
Dr. Roggenkamp’s decision to restrict Hanson from
working more than forty hours per week.
At a February 7 appointment, Dr. Roggenkamp
noted Hanson’s improved condition, but he was
troubled by her inability to fully tip her head forward
No. 11-3292 5
and backward. Dr. Roggenkamp’s observations were
similar to those recently made by Dr. McGivney. Be-
cause Hanson had now been symptomatic for four
months, Dr. Roggenkamp believed that she would
be unable to return to regular assembly work.
Dr. Roggenkamp then advised Hanson that she could
no longer receive physical-therapy treatment at Cater-
pillar because her condition was no longer considered
work-related. Instead, Dr. Roggenkamp recommended
Hanson consult Rezin Orthopedics for further treat-
ment. Later that day, Dr. Roggenkamp sent an email to
plant management, stating that Hanson’s progress
had plateaued and that her medical restrictions would
continue indefinitely. After considering Dr. Roggenkamp’s
email, Labor Relations Representative Douglas Howell
terminated Hanson’s employment on February 10, 2005.
Howell concluded that Hanson was unable to perform
the assembly position for which she was hired within
her medical restrictions, and similarly, there were no
permanent positions available within her restrictions.
The company left open the possibility for Hanson’s
return if a suitable position became available.
On February 23, Dr. Kevin Draxinger of Rezin Orthope-
dics examined Hanson. Although Dr. Draxinger be-
lieved that Hanson risked a herniated disk and other
associated pain if she continued working, he otherwise
believed that she could return to work without restric-
tion. Even after learning of Dr. Draxinger’s conclusion
at a March 9 appointment, Dr. Roggenkamp noted her
continued limitation in bending her neck forward.
Dr. Roggenkamp then extended Hanson’s medical re-
6 No. 11-3292
strictions indefinitely. On April 20, Hanson sought
yet another opinion. Dr. Alexander Ghanayem exa-
mined Hanson and determined that she was fit to re-
sume working.
After obtaining an Equal Employment Opportunity
Commission right-to-sue letter, Hanson filed suit
against Caterpillar on August 6, 2009, alleging that the
company unlawfully terminated her in violation of the
ADA. Following discovery, the district court granted
summary judgment for Caterpillar, reasoning that
Hanson was not a “qualified individual with a disabil-
ity.” Hanson filed this timely appeal.
II. A NALYSIS
We review grants of summary judgment de novo,
viewing the record in the light most favorable to
Hanson and drawing all reasonable inferences in her
favor. Draper v. Martin, 664 F.3d 1110, 1113 (7th Cir.
2011). Summary judgment is appropriate when “the
movant shows that 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 must
affirm a grant of summary judgment if Hanson cannot
establish an element of her ADA claim on which she
would bear the burden of proof at trial. Harney v.
Speedway SuperAmerica, LLC, 526 F.3d 1099, 1104 (7th
Cir. 2008).
The ADA is designed, in part, to combat employment
discrimination against individuals with disabilities. To
No. 11-3292 7
that end, the Act prohibits discrimination against a
“qualified individual with a disability.” 42 U.S.C.
§ 12112(a).2 The Act defines “disability” as “(A) a physical
or mental impairment that substantially limits one or
more of the major life activities of such individual; (B) a
record of such an impairment; or (C) being regarded
as having such an impairment.” Id. § 12102(2) (as
amended § 12102(1)). On appeal, Hanson alleges only
that Caterpillar regarded her as having a physical im-
pairment that limits her in the major life activity of work-
ing. See Peters v. City of Mauston, 311 F.3d 835, 843 (7th
Cir. 2002) (finding that working constitutes such a
major life activity).
To satisfy the “regarded as” prong, Hanson must
offer evidence that Caterpillar believed, rightly or wrongly,
that her impairment substantially limited her ability to
work. 29 C.F.R. § 1630.2(l); Powers v. USF Holland, Inc.,
667 F.3d 815, 823 (7th Cir. 2011). Notably, Hanson’s
evidence must also show that Caterpillar subjectively
“regarded [her] as limited in [her] ability to perform
not merely one particular job but a class or broad range
of jobs.” Miller v. Ill. Dep’t of Transp., 643 F.3d 190, 195
(7th Cir. 2011); see also Kupstas v. City of Greenwood, 398
F.3d 609, 613 (7th Cir. 2005) (“The impairments must
substantially limit employment generally, not merely
2
The ADA was amended effective January 1, 2009. Because
Caterpillar’s alleged ADA violations predate these amend-
ments, the pre-amendment version of the ADA governs.
See Fredricksen v. UPS, Co., 581 F.3d 516, 521 n.1 (7th Cir. 2009).
8 No. 11-3292
preclude an employee from performing either a par-
ticular specialized job or a narrow range of jobs.” (quota-
tion marks and citation omitted)). Here, it is undisputed
that Caterpillar subjectively believed Hanson had a
serious neck condition. Thus, the sole issue for our
review is whether Caterpillar subjectively regarded her
neck injury as preventing her from performing a broad
range of jobs.
Hanson relies heavily on our decision in Miller.
There, the plaintiff was a bridge-crew employee who
had a long-standing fear of heights—acrophobia—which
his coworkers usually accommodated. 643 F.3d at 192-
93. That is, Miller would often seek out tasks he could
perform from the ground. If he was assigned a
task that triggered his acrophobia, a coworker was
usually willing to trade tasks. Id. at 193. This informal
arrangement lasted about four years, until his em-
ployer compelled him to perform a task that triggered
his condition. Id. Miller suffered a panic attack related
to this incident, and he was fired not long thereafter. Id.
at 193-94. We reversed the district court’s grant of sum-
mary judgment for the defendant, in part by finding
that his employer regarded Miller’s acrophobia as
limiting his ability to perform a wide variety of jobs—
including those jobs that he had successfully performed
in the past. Id. at 197.
The facts here are markedly different than those pre-
sented in Miller. Unlike the Illinois Department of Trans-
portation, Caterpillar willingly placed Hanson in three
temporary positions within her prescribed medical re-
No. 11-3292 9
strictions: she spent time working in “the cage,” on a sub-
assembly line, and even back on the 980-tractor line.
Meanwhile, Miller was terminated even though he ap-
peared capable of performing any number of tasks that
did not implicate his acrophobia. Caterpillar’s willing-
ness to place Hanson in other jobs within her medical
restrictions clearly belies the claim that the company
subjectively regarded her as unable to perform a broad
class of jobs. It also makes Hanson’s analogy to Miller
unavailing.
Hanson also points to a handful of evidence
suggesting that Caterpillar violated the “regarded as”
prong. First, Hanson argues that Dr. Roggenkamp’s
medical restrictions were so severe as to prevent her
from doing almost any job, including computer work.
Dr. Roggenkamp also supposedly told Hanson that her
medical restrictions would continue indefinitely and
that she would not be able to perform any job. This evi-
dence is not as helpful as Hanson hopes. Even if
Dr. Roggenkamp were the individual that fired
her—he did not, Howell fired her—Dr. Roggenkamp’s
hyperbole about Hanson’s capabilities was proven
untrue when Caterpillar placed her in three different
positions. The company and relevant decision makers
believed that Hanson could perform a wide variety of
jobs that did not interfere with her condition, including
clerical work and light-duty manual labor. In con-
trast, Hanson was only prevented from performing
a narrow range of jobs that required demanding
physical labor. Dr. Roggenkamp’s role in this litigation
10 No. 11-3292
only proves that Caterpillar believed Hanson was im-
paired, not that she was so impaired as to be unable to
perform a variety of jobs.
The second piece of evidence Hanson marshals before
us is a statement made by Floyd Braddy, an Environ-
mental Health and Safety Associate at Caterpillar,
uttered more than one month after Hanson was fired.
Because Hanson was eligible for rehire, Braddy con-
sidered her for a position operating a parflange ma-
chine. Braddy ultimately determined that Hanson’s
medical restrictions precluded her from operating the
machine, but he also said that “with [Hanson’s] assigned
medical restrictions I would be hard pressed to find
her capable of doing about any job in the shop.” Hanson
claims that this is evidence that Caterpillar regarded her
as unfit to perform a broad class of jobs. We disagree.
First, the district court below was rightly skeptical of
the claim that Braddy’s post-termination statement some-
how illuminates Caterpillar’s subjective beliefs at the
time of her termination. See, e.g., Bilow v. Much Shelist
Freed Denenberg Ament & Rubenstein, P.C., 96 F. Supp. 2d
763, 772 (N.D. Ill. 2000). More than that, Braddy’s state-
ment is wholly outside of the complaint—Hanson alleged
that she was fired for being regarded as disabled, not
that she was discriminated against in any decision to
rehire her. Finally, Braddy’s comment unconvincingly
contradicts the undisputed evidence that Caterpillar
placed Hanson in a variety of positions within her
medical restrictions, including a “shop” position on the
980-tractor line.
No. 11-3292 11
Ultimately, Hanson cannot overcome the evidence
showing that Caterpillar placed her in three different
positions, all within her medical restrictions. Because
Caterpillar did not regard her as impaired as to a broad
range of jobs, we find that Hanson was not a “qualified
individual with a disability.”
III. C ONCLUSION
For the foregoing reasons, we A FFIRM the district
court’s grant of summary judgment in favor of Caterpillar.
8-3-12