In the

United States Court of Appeals

For the Seventh Circuit

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No. 03-3862

DANIEL P. ROONEY,

Plaintiff-Appellant,

v.

KOCH AIR, LLC,

Defendant-Appellee.

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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 arrangement 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 department. 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 walking, 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 troubleshooting 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 compensation 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 perform 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 functional 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 reprimand 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 perform 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-tosue letter, he brought this action in federal court in August

2001.

Discovery followed in due course. Critically for our purposes, Rooney testified at his deposition that after his surgery

in March 2000, he was able to perform all major life activities 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 process, 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 functions 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 employment 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 purposes 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 activities 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). Importantly, 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 “substantially 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 activities. 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 subject 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 individuals 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 experience 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 attempted 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 employers 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 afteracquired 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 company 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 discharged 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 resignation 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 constructive 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