Stein v. Ashcroft, 00-4326.

• Citation: 284 F.3d 721
• Decision Date: 21 March 2002
• Docket Number: No. 00-4326.,00-4326.
• Parties: Doree STEIN, Plaintiff-Appellant, v. John ASHCROFT, United States Attorney General, and Immigration and Naturalization Service, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

284 F.3d 721

Doree STEIN, Plaintiff-Appellant, v. John ASHCROFT, United States Attorney General, and Immigration and Naturalization Service, Defendants-Appellees.

No. 00-4326.

United States Court of Appeals, Seventh Circuit.

Argued November 5, 2001.

Decided March 21, 2002.

COPYRIGHT MATERIAL OMITTED

George C. Pontikes, argued, Pontikes & Associates, Chicago, IL, for Plaintiff-Appellant.

Edward J. Messina, argued, Office of the United States Attorney, Chicago, IL, for Defendants-Appellees.

Before COFFEY, ROVNER and EVANS, Circuit Judges.

COFFEY, Circuit Judge.

Plaintiff-Appellant Doree Stein is employed by the Immigration and Naturalization Service (INS) Chicago District Office as a District Adjudication Officer (DAO). Stein brought suit against her employer alleging that the defendants failed to accommodate her disability in violation of the Rehabilitation Act of 1973, 29 U.S.C. § 794a. The district court granted the defendants' motion for summary judgment, and Stein appeals. We affirm.

BACKGROUND

Stein began employment with the INS Chicago District Office as a DAO in 1988. Her primary job responsibilities were interviewing applicants for United States citizenship and generating reports of those interviews, assisting applicants in the completion of the necessary forms, as well as processing completed applications. Stein's duties were primarily performed in her office at INS, but at times she would travel beyond the confines of the office (to places such as community centers, libraries, and churches) anywhere from one to five days per week to conduct "outreach" assignments. While working outside the office, Stein taught applicants about the procedure of becoming a U.S. citizen and conducted interviews. The outreach program required Stein to engage in moderate physical exertion not required in the office, such as standing for long periods, transporting and carrying boxes of files and office supplies, and setting up folding tables and chairs.

In May 1994, Stein was diagnosed as suffering from chronic upper left extremity pain and "myofacial pain syndrome,"¹ as the cumulative result of several injuries (including a car accident and an incident in which Stein was physically attacked). Stein claims that this medical problem made it difficult for her to fully extend her left arm and to lift and carry heavy objects, including the boxes she transported to and from outreach assignments. In June 1994, Stein's treating physician sent a letter to the INS recommending that Stein "not do as much heavy lifting as she had been previously," but added that it was otherwise "acceptable that she goes out into the field for her work." In a subsequent letter to Stein's employer dated October 13, 1994, Stein's doctor amended his recommendation, stating that Stein was "released to sedentary employment.... She should not have duties that call her to perform repetitive motions of her left hand more than 33% of the time. She will need to have computer arm rests and equipment sufficient to minimize the quantity of her typing (i.e. efficient word processing software)." An occupational therapist was brought in to evaluate Stein's work station at INS and made recommendations intending to minimize the stress placed on the left side of her body. Furthermore, it was suggested that she use a properly adjusted "ergonomic" chair with proper posture, and that she position frequently used items in her work area more efficiently. In December 1994, Stein's doctor prescribed the use of a computer "set up in an ergonomically correct position" so as to "decrease the chance of overload to her neck, shoulder, arm, wrist and hand structures."

A month later, in January 1995, Stein's supervisor advised her that she would no longer be assigned to "outreach" duties. The supervisor explained that the work responsibilities and schedules of other INS employees did not make it feasible for someone to be available to assist Stein with transporting, carrying and lifting boxes of files. Additionally, Stein was informed that INS did not want her to risk further injury by attempting to lift heavy files, move and assemble furniture, or spend long periods sitting in non-adjustable chairs. In spite of the removal of outreach assignments from her duties, Stein's salary, title, and other job responsibilities remained the same. Stein continued to report to work every day and perform the duties required of a DAO.

In March 1995, Stein filed a complaint with the Equal Employment Opportunities Commission (EEOC) alleging that the removal of her outreach duties amounted to discrimination on the basis of a disability. While the EEOC's investigation was in progress, the INS requested a current medical evaluation of Stein's condition, and in April 1996 her physician wrote to INS that Stein was "physically able to perform the duties as a DAO," and was "able to work at a work site for a scheduled eight hour period of time, five days per week." The report further noted that the doctor had not seen Stein for a period of eleven months for any treatment or evaluation, and that it was his "impression that she had been back to work full time without any restrictions in terms of light duty at a desk."

In January 1998, the EEOC issued a decision finding that Stein had not been discriminated against on the basis of a physical disability. Stein filed this action alleging that the INS' decision to discontinue her outreach duties constituted a failure to accommodate her physical disability in violation of the Rehabilitation Act of 1973, 29 U.S.C. § 794a. The district court granted the defendants' motion for summary judgment on the ground that Stein had failed to present evidence sufficient to establish that she was "disabled" within the meaning of the Rehabilitation Act. Stein appeals.

DISCUSSION

The issue on appeal is whether the district court properly awarded summary judgment to the defendants on the grounds that Stein was not "disabled" within the meaning of the Rehabilitation Act of 1973. The district court's grant of summary judgment is reviewed de novo. Mt. Sinai Hospital v. Shalala, 196 F.3d 703, 707 (7th Cir.1999).

Section 505 of the Rehabilitation Act provides a private right of action for federal employees alleging employment-related discrimination on the basis of a disability. Hamm v. Runyon, 51 F.3d 721, 724 (7th Cir.1995); 29 U.S.C. § 794a. To succeed on a claim under the Rehabilitation Act, a plaintiff "must meet the threshold burden of establishing that he is `disabled' within the meaning of the statute." Roth v. Lutheran General Hospital, 57 F.3d 1446, 1454 (7th Cir.1995).

For purposes of the Rehabilitation Act, a person is "disabled" if he or she "has a physical or mental impairment which substantially limits one or more of such person's major life activities." Hamm, 51 F.3d at 724; 29 U.S.C. § 706(8)(B). Major life activities are defined as "functions, such as caring for oneself, performing manual tasks, walking, seeing, hearing speaking, breathing, learning and working." Roth, 57 F.3d at 1454; 29 C.F.R. § 1613.702(c).

The parties agree that Stein has a "physical impairment," but disagree as to whether the impairment "substantially limits a major life activity." Stein argues that the district court erred in concluding that her impairment does not substantially limit her major life activity of working, or substantially limit major life activities other than work.

1. The Major Life Activity of Working.

When the major life activity under consideration is that of working, a plaintiff must demonstrate that "she was 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." Davidson v. Midelfort Clinic, Ltd., 133 F.3d 499, 506 (7th Cir.1998); see also Sutton v. United Air Lines, Inc., 527 U.S. 471, 491, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999) (a plaintiff must show, "at a minimum," that she is "unable to work in a broad class of jobs.") Further, "[t]he inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working." Sutton, 527 U.S. at 491, 119 S.Ct. 2139, quoting 29 C.F.R. § 1630.2(j)(3)(i). In other words, "the impairment must substantially limit employment generally." Contreras v. Suncast Corp., 237 F.3d 756, 762 (7th Cir.2001).²

Stein's argument concerning the major life activity of working reflects a misconception of the applicable legal standards, which her appellate brief fails to cite or address. Stein contends that her removal from outreach duties resulted in lost opportunities for overtime pay, the "loss of merits points necessary for promotion," and a limitation on her ability to socialize and exchange ideas with her fellow DAOs. These allegations, even if true, do not fulfill Stein's burden to demonstrate that her impairment substantially limits her ability to work. We will not search the record in an attempt to make Stein's arguments for her. Se...