Craig Steffen v. Patrick R. Donahoe , 680 F.3d 738 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2664
C RAIG S TEFFEN,
Plaintiff-Appellant,
v.
P ATRICK R. D ONAHOE,
Postmaster General, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 09-C-120—Aaron E. Goodstein, Magistrate Judge.
A RGUED F EBRUARY 15, 2012—D ECIDED M ARCH 21, 2012
Before P OSNER, F LAUM, and M ANION, Circuit Judges.
F LAUM, Circuit Judge. Craig Steffen was a part-time
employee of the United States Postal Service (“USPS”)
from 1987 to 2006. Due to a back injury, however, Steffen
worked only one week in the last three years of his tenure
with the USPS. The USPS claims that Steffen did not
properly apply for leave during those three years, nor did
he submit the proper paperwork to substantiate that he
2 No. 11-2664
was, in fact, injured. Nonetheless, the USPS agreed to
allow him to return to his job, provided that he did not
have any restrictions on his ability to work. In the
event that he was limited in his capacity to perform his
job, USPS agreed that he could file for disability retirement.
Upon evaluation, Steffen’s physician placed restrictions
on his work activity. Steffen did not file for disability
retirement. The USPS, therefore, fired him.
Steffen claims that his termination constitutes dis-
ability discrimination under the Rehabilitation Act of
1973 (the “Rehab Act”) and the Americans with Disabil-
ities Act (the “ADA”). Defendants—the Postmaster
General and the USPS—filed a motion for summary
judgment, arguing that Steffen is not “disabled” under
the Rehab Act and the ADA, and, thus, has no claim
under those statutes. The district court agreed with the
defendants and dismissed Steffen’s claim. We affirm
the judgment of the district court.
I. Background
A. Factual Background
Craig Steffen was a part-time mail handler for the
USPS in Milwaukee from 1987 until his termination in
2006. For the last three of those years, however, he did not
actually work. In 1998, Steffen suffered an injury to his
back while on the job. He took two weeks off to recover,
ultimately returning to “light-duty” work until May 2003.
At that time, Steffen reinjured himself at work. Except for
No. 11-2664 3
one week in July 2003, he did not return to work for
the USPS at any point leading up to his termination on
January 10, 2006.
During the two-and-a-half years that Steffen was not
working, his supervisor, Charles Spahn, repeatedly
attempted to get him either to return to work or to pro-
duce documentation regarding his injury. Spahn con-
tacted Steffen’s union, but his efforts were unsuccessful.
In January 2005, Spahn wrote Steffen a letter stating that
he would be fired on February 11, 2005 for being absent
without leave, for failing to maintain a regular schedule,
and for failing to follow instructions regarding any pos-
sible leave for which he was eligible. Steffen responded
by contacting his union, which filed a grievance on his
behalf. In October 2005, Steffen entered a pre-arbitration
settlement agreement (the “Settlement Agreement”)
with the USPS. The Settlement Agreement included the
following language:
Grievant will be returned to duty provided he suc-
cessfully meets all medical requirements for his posi-
tion. Grievant has a scheduled appointment the
first week in November 2005 with his physician.
Grievant must contact the Milwaukee Postal
Medical Unit for a FFD if it is determined by his
physican that he may return to full duty. He must
make contact with the Postal Medical Unit by Novem-
ber 11, 2005, for a FFD. He must cooperate with all
recommendations by the Postal Medical Unit.
The parties agree that Craig Steffen will apply for
disability retirement if he is unable to return to full
4 No. 11-2664
duty after his determination from his physician in
November. He must submit his application for disabil-
ity retirement within 30 days of his physician’s find-
ings. If he fails to apply for disability retirement
within the 30 days or if the disability retirement is
disapproved he must resign from the Postal Service
within 15 days of the determination.
Steffen’s union representative did not explain the Settle-
ment Agreement to him. As he understood the Settlement
Agreement, the term “full duty” meant that he was to
return to the light-duty job that he performed from 1998
through 2003. Emma Hughes, the USPS representative
involved in the Settlement Agreement, intended the
term “full duty” to mean that Steffen could not return
to work with any restrictions on his performance or
requiring accommodations.
In keeping with the Settlement Agreement, Steffen
visited his physician, as well as a second physician
in December 2005. His physicians cleared him to return
to work, but imposed several permanent restrictions on
his abilities. The first physician told Steffen to avoid
lifting, pushing, and pulling more than 25 pounds; stand-
ing for more than two hours at a time; and repetitively
bending, stooping, climbing, reaching, and twisting. He
also encouraged Steffen to alternate between sitting and
standing. The second physician agreed. In response to
these restrictions, the USPS physician determined that
Steffen was unfit for “full duty,” interpreting “full duty”
to mean no restrictions. Steffen did not file for disability
retirement, nor did he resign. He was terminated on
No. 11-2664 5
January 10, 2006, based on his violation of the Settlement
Agreement.
B. Procedural Background
Steffen filed a grievance in arbitration against the
USPS, claiming discrimination based on disability. His
claim was dismissed when the arbitrator determined
that the matter was not subject to arbitration. Steffen
then filed a complaint with the Equal Employment Op-
portunity Commission (the “EEOC”). After a three-year
investigation, the EEOC found that no discrimination
took place when Steffen was fired. Finally, Steffen filed
a disability discrimination suit pro se in federal court on
February 5, 2009. He eventually obtained counsel.
Steffen filed a Complaint, followed by an Amended
Complaint, followed by a Second Amended Complaint.
The defendants did not contest the filing of the Second
Amended Complaint on the condition that Steffen stipu-
lated to the fact that he was not legally disabled.
This stipulation limited him to the claim that he was
discriminated against because he was “regarded as”
disabled by the USPS. Steffen obliged. Steffen argued that
the USPS regarded him as being disabled and fired him
based on this perceived disability, in violation of the Rehab
Act.1 He requested both damages and reinstatement.
1
Because the USPS is an agency of the federal government
and not a private employer, Steffen’s claims are brought under
(continued...)
6 No. 11-2664
After discovery, the defendants moved for summary
judgment, and Steffen moved for partial summary judg-
ment. Steffen argued that the USPS’ entrance into the
Settlement Agreement constituted a per se violation of
the Rehab Act since it had a “100% healed” clause. In
response, the defendants maintained that they did not
regard Steffen as being disabled, but also argued that
even if Steffen established a prima facie case of discrimina-
tion, they had a non-discriminatory reason to fire him.
Specifically, the defendants argued that they fired
Steffen due to his attendance record and failure to
comply with the Settlement Agreement.
The district court granted the defendants’ motion for
summary judgment. First, it held that the Congress’
amendments to the ADA that took effect in 2009 (the
“Amendments”) did not apply to Steffen’s claim as he
contended. Steffen was fired before the Amendments
were passed, and, the district court ruled, the Amend-
ments are not retroactive. Prior to the Amendments, an
employee was “regarded as” having a disability if his
employer believed that he had an impairment that “sub-
stantially limit[ed] one or more major life activities.” 45
1
(...continued)
the Rehab Act, PL 93-112, 87 Stat. 355, and not the ADA. This
Court, however, “looks to the standards applied under the . . .
ADA to determine whether a violation of the Rehab Act
occurs in the employment context.” Peters v. City of Mauston,
311 F.3d 835, 842 (7th Cir. 2002) (internal citations omitted);
29 U.S.C. § 794(d). Thus, we refer to the Rehab Act and the
ADA interchangeably.
No. 11-2664 7
C.F.R. § 84.3 (2001). After the Amendments took effect, an
employee could be “regarded as” having a disability as
long as an employer believed that employee to be im-
paired, whether or not that perceived impairment sub-
stantially limited a major life activity. 42 U.S.C. § 12102.
Applying the pre-Amendments standard, the district
court concluded that the USPS knew of Steffen’s back
injury, but did not consider that impairment to substan-
tially limit a major life activity. In reaching this decision,
the district court found that Steffen’s limitations, such
as his inability to lift more than 25 pounds, have not
been considered substantial limitations on major life
activities in past cases. The district court also found
that the USPS did not believe that his doctors’ recom-
mendations understated the extent of his limitations.
Accordingly, the USPS did not regard Steffen as having
a disability for the purposes of the Rehab Act, and he
could not suffer discrimination for being “disabled.”
The district court further reasoned that the USPS’
requirement that Steffen be 100% healed before he return
to work—codified in the “full duty” provision of the
Settlement Agreement—violated the Rehab Act.2 How-
ever, the district court held, as Steffen was not covered
by the Rehab Act, he did not have standing to challenge
2
The court reasoned that a “100% healed” policy prevents
an employer from individually assessing each employee as to
whether his impairment prevents him from completing his
job. Since such individualized evaluation is requried by
the ADA, the district court concluded that a “100% healed”
policy constitutes a per se violation of the law.
8 No. 11-2664
the USPS’ failure to engage in an individualized assess-
ment. Steffen appeals the judgment of the district court.
II. Discussion
We review a district court’s grant of summary judg-
ment de novo, construing all facts in favor of the
non-moving party—in this case, Steffen. Kupstas v. City
of Greenwood, 398 F.3d 609, 611 (7th Cir. 2005). Summary
judgment is appropriate “if 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.
C IV. P. 56(a); Kupstas, 398 F.3d at 611. In other words, if “a
rational trier of fact could not find for [Steffen],” then the
district court did not err in granting summary judgment.
Rogers v. City of Chicago, 320 F.3d 748, 752 (7th Cir. 2003).
Steffen argues that sufficient evidence existed for a
reasonable jury to find that the USPS regarded him as
disabled at the time of his firing, thereby allowing him
to bring a claim under the Rehab Act. Steffen also argues
that the “100% healed” requirement thrust upon him
by the USPS was a per se violation of the Rehab Act.
Steffen does not appeal the district court’s denial of his
summary judgment motion. Rather, he asks us to reverse
the district court’s grant of summary judgment for the
defendants and to remand the case for trial.
A violation of the ADA or the Rehab Act occurs when
a covered entity “discriminate[s] against a qualified
individual on the basis of disability in regard to job
application procedures, the hiring, advancement, or
No. 11-2664 9
discharge of employees, employee compensation, job
training, and other terms, conditions, and privileges of
employment.” ADA, 42 U.S.C. § 12112(a); see also Garg v.
Potter, 521 F.3d 731, 736 (7th Cir. 2008) (“The [ADA] and
Rehabilitation Act prohibit an employer from discrim-
inating against a qualified individual with a disability
because of the disability.”) (internal quotation marks and
citations omitted).
As an initial matter, Steffen must show that he is dis-
abled as defined by the Rehab Act, the ADA, and the
relevant regulations.3 Under the ADA, disability means:
“(1) [a] physical or mental impairment that substantially
limits one or more of the major life activities of such
individual; (2) [a] record of such an impairment; or
(3) [b]eing regarded as having such an impairment.”
29 C.F.R. § 1630.2(g) (2007); see also Kotwica v. Rose Packing
Co., Inc., 637 F.3d 744, 748 (7th Cir. 2011).4
According to the parties’ stipulation, Steffen dropped
any claim that he qualified for protection under the
Rehab Act on the basis of actual disability. Nor does he
argue that there is a record of his disability. He, thus,
3
Congress has not granted the EEOC the authority to interpret
the ADA. See Winsley v. Cook County, 563 F.3d 598, 604 n.2
(7th Cir. 2009). Nonetheless, both parties cite the EEOC’s
regulations, see 29 C.F.R. § 1630.2., and we, in turn, examine
them as instructive guidance.
4
For an explanation of why the 2001 version of the EEOC’s
regulations are cited rather than the current regulations, see
infra Part II.A.
10 No. 11-2664
hinges his claim for protection under the ADA and Rehab
Act on the fact that the USPS regarded him as being
disabled under the ADA. The district court, he con-
tends, erred in concluding otherwise.
A. ADA Amendments
Before analyzing whether the district court erred in its
assessment, we must first address Steffen’s argument
that the 2009 Amendments to the ADA apply to his case,
as they directly implicate the standard for determining
whether an employee is “regarded as” disabled by his
employer. Prior to the Amendments, an employee was
not “regarded as” disabled by his employer unless his
employer believed he satisfied the definition of “disabled”
under the ADA. See Sutton v. United Air Lines, Inc., 527
U.S. 471, 489 (1999); 29 C.F.R. § 1630.2(l)(2007). Thus, an
employee believed to have an impairment was not “re-
garded as” disabled unless his employer believed that
impairment substantially limited the employee in a
major life activity. Id. The Amendments changed this
standard, decreeing that “[a]n individual meets the re-
quirement of ‘being regarded as having such an impair-
ment’ if the individual establishes that he or she has
been subjected to an action prohibited under this chapter
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.
Steffen concedes that our case law prevents him from
arguing that the Amendments apply to his case. See
Fredricksen v. United Parcel Serv., Co., 581 F.3d 516, 521 n.1
No. 11-2664 11
(7th Cir. 2009) (“Congress did not express its intent for
[the Amendments] to apply retroactively, and so we look
to the law in place prior to the amendments.”). He none-
theless cites a district court case from the District of
Columbia for the proposition that the Amendments
revealed Congress’ true intent when it originally passed
the ADA. He urges us to follow that court and treat the
Amendments as persuasive authority in interpreting the
old version of the ADA. As the district court in this case
rightly pointed out, however, Steffen simply repackages
a retroactivity argument repeatedly rejected by this
Court, see, e.g., Gratzl v. Office of Chief Judges of 12th, 18th,
19th, and 22nd Judicial Circuits, 601 F.3d 674, 679 n.3
(7th Cir. 2010), and we cannot accede to his request with-
out shirking our obligation to “cite, quote, and apply
the ADA as it stood before the amendments.” EEOC v.
Autozone, Inc., 630 F.3d 635, 639 n.2 (7th Cir. 2010).
Steffen secondly argues that even if the Amendments
are not applied to his entire case, they should apply to
his requests for future relief. Specifically, he requests
that we follow the Amendments when considering in-
junctive relief in the form of his reinstatement. He directs
us to Jenkins v. National Board of Medical Examiners, an
unpublished opinion in which the Sixth Circuit held
that the Amendments are appropriately applied when
prospective relief is sought. No. 08-5371, 2009 WL 331638,
at *2 (6th Cir. Feb. 11, 2009). In Jenkins, a third-year med-
ical student sought more time on his medical boards as
an accommodation for his reading disorder. Id. at *1. The
Sixth Circuit explained that “[w]hen the intervening
statute authorizes or affects the propriety of prospective
12 No. 11-2664
relief, application of the new provision is not retroactive.”
Id. (quoting Landsgraf v. USI Film Products, 511 U.S. 244, 273
(1994)). Thus, the Sixth Circuit evaluated the plaintiff’s
claim under the new ADA. Steffen argues that the same
principle should apply to his requests for prospective
relief.
Assuming arguendo we follow the Sixth Circuit’s
application of the Amendments, Jenkins is inapt in this
case. In Jenkins, the plaintiff filed his case before the
Amendments were passed, but the alleged violation of
the ADA did not occur until after Congress amended
the statute. Id. at *1. The plaintiff knew that he had an
impending exam and wanted to secure an accommoda-
tion before the test occurred. Id. The law in effect at the
time of the relevant conduct—the denial of an accom-
modation during the examination—was the amended
version of the ADA. Id. Indeed, the Sixth Circuit recog-
nized this timing as distinguishing the case from cases
in which “actions giving rise to the litigation occurred
before the effective date of the amendments.” Id. at *2.
Unlike in Jenkins, the allegedly violative actions in this
case transpired before the effective date of the Amend-
ments. The fact that Steffen asked to be reinstated for
the USPS’ past transgressions does alter the fact that he
is complaining of allegedly illegal behavior that took
place in 2006: he does not ask this court for injunctive
relief. Accord Geiger v. Pfizer, Inc., No. 2:06-CV-636, 2009
WL 973545, at *2 (S.D. Ohio Apr. 10, 2009). The old
version of the ADA controls this case.
No. 11-2664 13
B. “Regarded As”
The applicable version of the ADA requires an
employer to believe that an employee is substantially
limited in a major life activity in order for that employee
to be “regarded as” disabled under the ADA. 29
C.F.R. § 1630.2(l); Sutton, 527 U.S. at 489. An employer so
regards his employee if: “(1) [the employer] mistakenly
believes that [the employee] has a physical impairment
that substantially limits one or more major life activities,
or (2) [the employer] mistakenly believes that an actual,
nonlimiting impairment substantially limits one or more
major life activities.” Sutton, 527 U.S. at 489 (emphasis
added). Importantly, however, the fact that an em-
ployer offers an employee an accommodation does not
necessarily prove that the employer believed the
employee suffered a substantial limitation in a major life
activity. Kupstas, 398 F.3d at 614. To succeed under the
“regarded as” prong, a plaintiff must establish an
accepted major life activity under the ADA and prove
that his employer believed him to be substantially
limited in that major life activity.
1. Major Life Activity
The EEOC regulations interpreting the ADA list as
major life activities “caring for oneself, performing man-
ual tasks, walking, seeing, hearing, speaking, breathing,
learning, and working.” 29 C.F.R. § 1630.2(i) (2007). This
list has not been interpreted as being exclusive, see
Winsley v. Cook County, 563 F.3d 598, 603 (7th Cir. 2009),
but, prior to the Amendments, courts were careful not
14 No. 11-2664
to refer to life activities as being major unless they were
“of central importance to daily life.” Toyota Motor Mfg. v.
Williams, 534 U.S. 184, 197 (2002); see also Winsley, 563
F.3d at 603 (“[T]he listed activities are so important to
everyday life that almost anyone would consider himself
limited in a material way if he could not perform them.”).
Notably, Steffen, in his brief, does not expressly
identify the major life activity in which he is allegedly
limited. In his Second Amended Complaint, how-
ever, he claims that he was limited in the “major life
activities of engaging in motor skills, including repetitive
bending, stooping, climbing, reaching and twisting.” He
also claims that he was limited to lifting no more than
25 pounds, that he could not stand for more than 2 hours,
and that he needed to alternate between sitting and
standing. Steffen also implies that he would not have
been able to return to “full duty” work, suggesting that he
may have been asserting a substantial limitation in the
major life activity of working. Assuming arguendo that
Steffen has not waived his proposed major life activities
by omitting them from his brief, he has not proven that,
for any activities that qualified as major life activities
prior to the Amendments, the USPS regarded him as
substantially limited in his ability to perform them.5
5
We note that with respect to the major life activities Steffen
identifies in his Second Amended Complaint, if they qualify
as major life activities at all, Steffen was not substantially
limited as defined by the ADA and Rehab Acts. That is, the
USPS’ beliefs aside, he was not legally handicapped. This
Circuit’s pre-Amendment jurisprudence clearly indicated that
(continued...)
No. 11-2664 15
5
(...continued)
an inability to lift 25 pounds was not a substantial limitation
on a major life activity. See, e.g., id. (inability to lift 35 pounds
was not a substantial limitation); Squibb v. Mem’l Med. Ctr.,
497 F.3d 775, 782 (7th Cir. 2007) (inability to lift 25-30 pounds
not a substantial limitation); Mays v. Principi, 301 F.3d 866,
870 (7th Cir. 2002) (expressing doubt that an inability to lift
10 pounds could be considered a substantial limitation). As
with lifting, this Circuit’s pre-Amendment precedent did not
explicitly comment on bending as a major life activity. In light
of the standard established in Toyota, however, we do not
think that bending is central to one’s daily life. 534 U.S. at 197.
Furthermore, Steffen is precluded only from engaging in
bending, stooping, climbing, reaching and twisting repetitively,
fostering doubts not only about whether repetitive bending,
independent of bending, is a major life activity, but also
about whether the inability to perform these movements
repetitively is a substantial limitation on the acts. This Court,
in Williams v. Excel Foundry & Machine, Incorporated, recognized
standing as a major life activity. 489 F.3d 309, 311 (7th Cir. 2007).
In Williams, however, we rejected as a substantial limitation
the inability to stand for 30 to 40 minutes—a hindrance much
greater than Steffen’s inability to stand for over two hours.
Finally, Steffen does not qualify as substantially limited in the
major life activity of working. To be substantially limited in
one’s ability to work, one must be significantly restricted in
the ability to perform more than just a single job or the particu-
lar job that one held before he acquired a disability. 29
C.F.R. § 1630.2(3)(I). Steffen was not precluded from performing
a broad range or an entire class of jobs. In fact, the USPS
provided an accommodation for Steffen based on the same
injury he had when he was fired for the several years prior to
(continued...)
16 No. 11-2664
2. Substantially Limited
The EEOC’s regulations interpreting the ADA, define
“substantially limits” as:
Unable to perform a major life activity that the average
person in the general population can perform; or . . .
[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 the
average person in the general population can
perform that same major life activity.
29 C.F.R. § 1630.2(j)(1) (2007); see also Contreras v. Suncast
Corp., 237 F.3d 756, 765 (7th Cir. 2001). The regulations
further provide that in determining whether someone
is substantially limited in a major life activity, one
should consider the following factors: “(i) [t]he
nature and severity of the impairment; (ii) [t]he duration
or expected duration of the impairment; and (iii)
[t]he permanent or long term impact, or the ex-
pected permanent or long term impact of or resulting
from the impairment.” 29 C.F.R. § 1630.2(j)(2) (2007).
Steffen contends that the USPS regarded him as sub-
stantially limited in a major life activity because, in a
single line from the deposition of the USPS representa-
tive that signed the Settlement Agreement, the USPS
5
(...continued)
his three-year absence, indicating that he could perform
other jobs for the USPS.
No. 11-2664 17
representative stated that she believed that Steffen
was receiving an accommodations for a disability. The
following is an excerpt of Emma Hughes’ deposition:
Q: What accommodations do you recall that he re-
ceived prior to going on AWOL?
A: I’m not sure what his duties involved, but he did
not do the full duties of his position prior to—of his
position. I’m not sure what his duties were, but they
were not full.
Q: At the time that you negotiated this agreement
then, Exhibit No. 11, did you believe that Mr. Steffen
was receiving accommodations for a disability that
he had acquired through an on-the-job injury?
A: No.
Q: Okay. Did you believe that he was receiving ac-
commodations for a disability that he had acquired
through an off-the-job injury?
A: Yes.
Steffen argues that Hughes admitted she believed that
Steffen “was receiving accommodations for a disability,”
so, he maintains, the USPS must have “regarded [him] as”
disabled. For further support, Steffen underscores that
Hughes discussed her understanding of when the
USPS was required to offer accommodations to disabled
employees, both illustrating her familiarity with the
ADA and indicating that she must have known what
“disability” meant under the ADA. When she affirma-
tively answered the final question quoted above, he
posits, she knew that disability meant “substantial limita-
18 No. 11-2664
tion on a major life activity.” Consequently, he argues,
her answer must be read as “Yes. I believed that
Steffen was receiving accommodations for a substantial
limitation on a major life activity. I believed that he
was disabled.”
Setting aside the fact that Hughes’ understanding of
the ADA’s accommodations requirements was incorrect,
there are several reasons why this single line in her dep-
osition is insufficient to prove that the USPS regarded
Steffen as being substantially limited in a major life
activity. First, many impairments that are con-
sidered “disabilities” under the term’s colloquial meaning
are not “disabilities” for the purposes of the ADA and
the Rehab Act, see, e.g., Desmond v. Mukasey, 530 F.3d
944, 952 (D.C. Cir. 2008), and nothing about the context
of Hughes’ deposition suggests that either she or her
questioner was referring to the strict definition of “disa-
bility” found in the ADA.
Moreover, the question eliciting Hughes’ allegedly
damning answer centered on whether Steffen had
received accommodations in the past and whether
those accommodations were the result of an on-the-job
or off-the-job injury. The fact that Steffen previously
received an accommodation–or that Hughes believed
he had—does not prove that she believed that he
suffered a substantial limitation in a major life activity.
See Kupstas, 398 F.3d at 614. The question did not
prompt her to contemplate whether Steffen’s impair-
ments rose to the level of a substantial limitation on a
major life activity, and Steffen’s suggestions that she
entertained this line of analysis strain credulity.
No. 11-2664 19
Finally, Hughes’ deposition affirmatively suggests
that she did not consider Steffen disabled under the
ADA, or, at the very least, that she did not know either
way. She stated, for example, that she did not know the
extent of his injuries; that she believed his union repre-
sentative had told her that he would be able to return
to full duty; that she did not believe that it would be
impossible to return to work; and that she did not know
the seriousness of his injuries. Her testimony does not
indicate that the USPS mistakenly believed that Steffen
suffered from an impairment he did not have, nor does
it suggest that the USPS mistakenly believed that the
impairments he did have were more limiting than
his doctors had expressed. See Sutton, 527 U.S. at 489.
In short, Hughes’ deposition does not prove that the
USPS regarded Steffen as disabled.
Steffen fails to prove that he falls within the ambit of
the ADA and Rehab Acts. He did not provide evidence
by which a reasonable jury could conclude that the
USPS regarded him as substantially limited in a major
activity. Thus, Steffen’s claim must fail.
C. Per Se Violation
Notwithstanding Steffen’s inability to prove he was
covered by the ADA or the Rehab Act, he claims that the
Settlement Agreement included a “100% healed” require-
ment, which was a per se violation of the ADA and the
Rehab Act. Steffen argues that the ADA requires em-
ployers to individually assess potential or current em-
ployees to determine whether they are qualified for a
20 No. 11-2664
particular job, with or without an accommodation
despite their disability. See Weigel v. Target Stores, 122
F.3d 461, 466 (7th Cir. 1997) (“[T]he ADA’s ‘qualified
individual’ inquiry . . . necessarily involves an individ-
ualized assessment of the individual and the relevant
position . . . .”). Since a “100% healed” policy pre-
vents individual assessment, it necessarily operates
to exclude disabled people that are qualified to work,
which constitutes a per se violation. See, e.g., Powers v. USF
Holland, Inc., 667 F.3d 815, 819 (7th Cir. 2011) (“[A]ll
courts ‘agree that a 100% rule is impermissible as to a
disabled person . . . .’” (quoting Henderson v. Ardco, Inc.,
247 F.3d 645, 653 (6th Cir. 2001)) (emphasis in original)).
Whether or not Steffen presented enough evidence
to show that the USPS may have a “100% healed”
policy regarding disabled workers, his argument has a
separate, fatal flaw. In order to have standing to sue
an employer for a per se violation of the ADA or Rehab
Act, one still has to meet the definition of “disabled
person” under those statutes. See id. (“[A]ll courts agree
that a 100% rule is impermissible as to a disabled per-
son–but one must first be disabled.”) (internal quotation
marks and citation omitted) (emphasis in original);
Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 688 (7th
Cir. 1998) (noting that the parties did not dispute that
the plaintiff-employees were either disabled or regarded
as disabled before addressing whether a “physical fit-
ness” test was a per se violation of the ADA); Hutchinson
v. United Parcel Serv., Inc., 883 F. Supp. 379, 397-98 (N.D.
Iowa 1995) (holding that a 100% healed requirement is
a per se violation of the ADA, but that plaintiff “[did] not
No. 11-2664 21
have standing, because she [was] not a person with a
disability within the meaning of the ADA”). Steffen
waived any argument that he was actually disabled
under the ADA, does not put forth any argument that
he had a record of being disabled, and failed to
establish that he was regarded as being disabled. Thus,
he lacks standing to bring a per se violation claim
against the USPS.
Although Steffen does not make this argument, it is
worth noting that at least two circuits have suggested
that proof of an employer’s “100% healed” policy can
supply circumstantial evidence that the employer
actually regarded an employee as substantially limited
in the major life activity of work. In particular, a “100%
healed” policy may show that the employer did not
allow the employee to return to work because of the
employee’s impairment. See Jones v. UPS, Inc., 502 F.3d
1176, 1188-89 (10th Cir. 2007); Henderson, 247 F.3d at 653.
We declined to follow the Sixth and Tenth Circuits
in Powers v. USF Holland, Incorporated, where we rea-
soned that an employer is free to be risk averse and
require that its employees are 100% healthy as long as
those employees are not covered by the ADA. 667 F.3d
at 823-24. Our view comports with the Supreme Court’s
pre-Amendments conclusion that “an employer is free
to decide that physical characteristics or medical condi-
tions 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 indi-
viduals less than ideally suited for a job.” Sutton, 527
22 No. 11-2664
U.S. at 490-91. Therefore, Steffen does not have standing
to bring a claim against the USPS for a per se violation
of the ADA.
III. Conclusion
For the foregoing reasons, we A FFIRM the district
court’s grant of summary judgment for the defendants.
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