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 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,
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 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.
Powers began working in the spring of 1999 as a truck driver for Holland. Holland is a freight transportation 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 employment 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 substantial 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 bothering him, Powers was told he would be subject to disciplinary action if he continued to work while experiencing pain. Powers left work that day and on August 29, 2004, Powers's physician, Dr. Magill, recommended that Powers discontinue work until further notice. Holland then
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 restrictions. On December 21, 2005, Kurt Kopczynski, the South Bend Terminal Manager, also relayed to Powers Holland's position that he would not be able to return to work with restrictions.
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 required 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 complete 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 clarification given its statements that he needed a full release to return to work. Powers attempted to return to work 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 medical 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
On appeal, Powers argues that the district court erred in granting Holland summary judgment on his ADA claims.
Before the district court, Powers presented three types of ADA claims: disparate treatment, failure to accommodate, and per se discrimination based on Holland's 100% healed policy.
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." Appellant 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 argument regarding
To be substantially limited in the major life activity of working means that a claimant is "significantly restricted 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
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 substantially limited in the major life activity of working.
Best, though, is readily distinguishable from the case before us. In Best, the plaintiff's condition made it painful 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 Evaluation 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 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 limitation 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 jobs that require a significant amount of dock work.
This case thus compares more closely with Baulos v. Roadway Express, Inc., 139 F.3d 1147
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 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 Metropolitan 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 significant 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 that Powers'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
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 Greenwood, 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.
Powers responds that Holland's 100% healed policy itself establishes that it regarded Powers as disabled.
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. Passenger 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 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 Schneider 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 impairments
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 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 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.
Powers did not present sufficient evidence of an impairment 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 prevented him from performing one specific job for Holland—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 discrimination, and reasonable accommodation claims fail and Holland is entitled to summary judgment. We AFFIRM.