# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued June 11, 2008

Decided June 23, 2008

Before

DANIEL A. MANION, Circuit Judge

ILANA DIAMOND ROVNER, Circuit Judge

JOHN DANIEL TINDER, Circuit Judge

No. 07

‐ 3140

RICARDO DELGADO,

Plaintiff

‐ Appellant

,

v.

CERTIFIED GROCERS MIDWEST, INC.

Defendant

‐ Appellee

. Appeal from the United States District Court

for the Northern District of Illinois, Eastern

Division.

No. 06 C 2107

Charles P. Kocoras,

Judge.

O R D E R

Ricardo Delgado sued Certified Grocers Midwest (Certified) alleging discrimination

on the basis of a disability in violation of the Americans With Disabilities Act of 1990

(ADA), 42 U.S.C. §§ 12101

‐ 12213, when he was fired after being injured on the job. The

district court granted the defendant’s motion for summary judgment. Because Delgado has

failed to show that he is disabled under ADA, we affirm. NONPRECEDENTIAL DISPOSITION

To be cited only in accordance

with Fed. R. App. P. 32.1No. 07

‐ 3140 Page 2

Delgado, who is 41 years old and has a sixth

‐ grade education, began working as a

“warehouse picker” at Certified in August 2000. This job required that Delgado work in

refrigerated areas of the warehouse, and his job duties included manually lifting and

carrying items between 1 and 100 pounds taken from bins located 5 inches to 6 feet off the

floor. Throughout Delgado’s employment, he was a member of a local union and was

subject to the collective bargaining agreement between the union and Certified. In

November 2001 Delgado injured his shoulder at work and was taken to the hospital by

ambulance. Over the next 3 1⁄2 years, Certified provided him with several leaves of absence

and at other times allowed him to work in “light

‐ duty” jobs. Light

‐ duty jobs are temporary

jobs created by an employee’s supervisor to provide meaningful work within an employee’s

restrictions during the employee’s rehabilitation period. When Delgado first returned to

work, he performed a light

‐ duty job for 8 weeks, but when that period ended in February

2002, instead of returning to his regular job he again took a leave of absence because of his

injury. This time Delgado did not return to work until 8 months later, when his physician

gave him clearance to work without restrictions.

In June 2003 Delgado reinjured his shoulder at work. Nevertheless, over the next

two months he continued to work without restrictions while he sought treatment from

doctors. In August 2003, however, Delgado’s physician again limited him to light

‐ duty

work with lifting restrictions for three months. In January 2004 Delgado had surgery on his

shoulder and took another leave of absence until May 2004, when he returned to light duty

for 7 months. During this light

‐ duty period, Delgado’s physician reduced his medical

restrictions, allowing him lift 100 pounds so long as he did not lift objects above his head.

Delgado continued to perform light

‐ duty work until November 2004, when Certified placed

him on a leave of absence after his physician diagnosed him with Carpal Tunnel Syndrome.

Soon thereafter, Delgado’s physician determined that his injuries would not improve and

imposed permanent restrictions that limited him to lifting no more than 50 pounds on

occasion and frequently lifting or carrying no more than 25 pounds. Delgado’s physician

also instructed him to avoid working in chilled environments.

Delgado attempted to return to work in April 2005 and gave Certified a note from

his doctor documenting his permanent restrictions. Because Delgado could no longer

perform his duties as a warehouse picker, Certified fired him. Delgado did not request that

Certified provide him with accommodations that would permit him to do his job, nor did

he apply for any other jobs at Certified.

Certified did not have any permanent jobs under the jurisdiction of Delgado’s local

bargaining unit that he could perform with his physical limitations, and the union does not

allow employees to shift outside of their local unit. Since leaving his job at Certified,

Delgado has had only one job, which Certified helped him find by providing him withNo. 07

‐ 3140 Page 3

vocational training, but he left that job because he was not paid on time and because he was

required to work beyond his restrictions. His vocational counselor advised him not to

mention his work restrictions in job applications and suggested that Delgado discuss his

injury in interviews instead. Delgado has received several job offers since then, including

an offer to be a forklift driver and two offers to be a baggage handler. But in each case,

Delgado failed to notify his would

‐ be employers of his work restrictions. Furthermore, he

did not show up for work because he presumed that the jobs would require labor outside

his work restrictions.

Delgado then timely filed suit against Certified, alleging that it fired him to avoid its

obligation under the ADA to accommodate his disabilities. Certified moved for summary

judgment. As part of his response to Certified’s motion, Delgado submitted two unusual

exhibits. First, he submitted an affidavit from his attorney (he had a different attorney on

appeal) describing her “admittedly highly unscientific” internet job search to determine if

Delgado’s work restrictions significantly hindered his ability to find work, although she did

not appear to draw any conclusions from her “study.” Appended to this affidavit were 50

pages of internet search results and job descriptions. In addition, Delgado submitted over

150 pages of job applications, fax cover sheets, drug test forms, and response letters from

employers, presumably meant to illustrate the extent of his thwarted job search after leaving

Certified.

The district court granted Certified’s motion for summary judgment. The court

found that Delgado had not presented evidence that his physical impairments excluded him

from a broad class of jobs and that he therefore was not disabled under the ADA. The

court reasoned that Delgado’s job offers contradicted his “bare assertions” that his work

restrictions prevented him from seeking employment. Moreover, the court noted that

Delgado had provided no evidence suggesting that he was ever turned down for a job

based on his work restrictions. The court next rejected trial counsel’s affidavit as

inadmissible scientific evidence under Federal Rule of Evidence 702. The court also found

that Delgado had presented no evidence that Certified regarded him as disabled and

observed that Certified’s actions did not evidence a general belief that Delgado was unable

to work at a broad class of jobs. The court concluded that because Delgado admitted that

his restrictions precluded him from performing the essential functions of his job—and that

no accommodation exists that would allow him to perform those functions—he is not a

“qualified individual” under the ADA.

On appeal Delgado argues that he was terminated because he was disabled, that

Certified regarded him as disabled, and that Certified could have accommodated his

disability by transferring him to a different position. To avoid summary judgment, Delgado

must show that there is a genuine issue of material fact regarding whether he is a “qualifiedNo. 07

‐ 3140 Page 4

individual with a disability” under the ADA. See Kupstas v. City of Greenwood

, 398 F.3d 609,

611 (7th Cir. 2005). According to the ADA, a disability is “‘(A) a physical or mental

impairment that substantially limits one or more of the major life activities of [the]

individual; (B) a record of such impairment; or (C) being regarded as having such an

impairment.’” Squibb v. Mem’l Med. Ctr.

, 497 F.3d 775, 781 (7th Cir. 2007) (brackets in

original) (quoting 42 U.S.C. § 12102(2)). In short, Delgado must present evidence that he

was disabled under one or more of these definitions and that he was qualified to perform

the essential functions of his job with or without reasonable accommodations. See id.; see

also EEOC v. Sears, Roebuck & Co.

, 417 F.3d at 789, 796

‐ 97 (7th Cir. 2005).

Delgado argues that there is a genuine issue of material fact regarding whether his

injury “substantially limits” the major life activity of being able to work. Delgado contends

that he “is obviously precluded from virtually any heavy or manual labor job” based on his

work restrictions and claims that his job options are limited because of his age and

education. Delgado maintains that the classified advertisements, cover letters, drug tests,

and job applications that he submitted were evidence of his restricted ability to perform a

broad class of jobs because “presumably” his lack of job offers was a result of his physical

impairments. The job offers that he did receive are of no consequence, Delgado argues,

because he was “forced to conceal his injuries in order to attempt to obtain employment, as

recommended by his vocational counselor,” and so his potential employers were unaware

of his work restrictions.

When a plaintiff claims that he is “substantially limited” in the major life activity of

working, he must show that he 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.’” Kupstas

, 398 F.3d at 612 (quoting 29

C.F.R. § 1630.2(j)(3)(i)). The injury must limit employment generally, not merely preclude

an employee from a particular job or a narrow range of jobs. Id. at 613. In general, a

claimant must present “some evidence of the number and types of other jobs in the

geographical region, from which he would be excluded because of his perceived

impairments.” Id. at 613 (internal quotation marks and citation omitted). The requirement

to show evidence of general employment demographics, however, is not a per se rule, and

in rare cases claimants’ “impairments are so severe that their substantial foreclosure from

the job market is obvious.” EEOC v. Rockwell Int’l Corp.

, 243 F.3d 1012, 1017 (7th Cir. 2001).

Delgado cites DePaoli v. Abbott Labs.

, 140 F.3d 668 (7th Cir. 1998), Best v. Shell Oil Co.

,

107 F.3d 544 (7th Cir. 1997), and Cochrum v. Old Ben Coal Co.

, 102 F.3d 908 (7th Cir. 1996), to

support his contention that this case is one of those rare cases in which his physical

limitations alone, without any further evidence of what jobs might be available to him, are

sufficient to show that he is precluded from performing any manual labor jobs. In DePaoli

,No. 07

‐ 3140 Page 5

we concluded that an assembly line worker who could not perform repetitive motions with

her right hand because she had tendinitis could establish that she was disabled because this

impairment alone was evidence that she could not perform any assembly line work.

DePaoli

, 140 F.3d at 673. In Best, we held that evidence of a truck driver’s knee injury, which

precluded him from driving, was sufficient to overcome summary judgment on the

question whether he was disabled under the ADA. Best, 107 F.3d at 548. And in Cochrum

,

we held that a coal miner’s shoulder injury, which prevented him from performing

overhead work, heavy lifting or pulling, and pushing out from his body, might preclude

him from performing a broad range of jobs and that “given the breadth of his physician’s

physical restrictions, a reasonable jury could conclude that Cochrum’s shoulder impairment

does substantially limit his ability to work.” Cochrum, 102 F.3d at 911.

Delgado’s restrictions, however, are not nearly as broad as those of the plaintiffs in

DePaoli

, Best, and Cochrum. More importantly, his impairments are not so severe that his

“substantial foreclosure” from the job market is obvious. Delgado is significantly more able

than the plaintiffs in the cases he cites because he can continue to lift up to 50 pounds on

occasion and up to 25 pounds continuously. In Contreras v. Suncast Corp.

, 237 F.3d 756, 763

(7th Cir. 2001), we held that a forklift operator who was unable to lift more than 45 pounds,

unable to engage in strenuous work, and unable to drive a forklift for more than four hours

a day had not “presented evidence that even hints at the notion that he is precluded from a

broad class of jobs.” In that case, we specifically distinguished DePaoli

, Best, and Cochrum,

observing that the “breadth of the restrictions placed on plaintiffs and their doctors’

recommendations concerning how their respective injuries would affect their ability to

obtain other employment” far exceeded the restriction placed on Contreras. Id

. at 763 n.5.

Delgado’s inability to lift more than 50 pounds does not support his assertion that he is

“obviously precluded from virtually any heavy or manual labor job, ”particularly given the

dearth of evidence documenting the requirements of typical manual

‐ labor jobs. See Peters v.

City of Mauston

, 311 F.3d 835, 844 (7th Cir. 2005); see also Squibb, 497 F.3d at 783.

Delgado’s job search further undermines his claim that he is substantially restricted

from a broad class of jobs. Delgado received several job offers that he chose to disregard

because he presumed that the jobs would exceed his restrictions, although there is no

evidence showing that Delgado’s assumption was correct. Delgado suggests that because

the employers who offered him jobs did not know of his physical impairments, we should

make the negative inference that the many employers who rejected his job applications did

so only because they were aware of his physical impairments. This is nonsensical, purely

speculative, and particularly unpersuasive considering that it was Delgado’s decision not to

inform potential employers of his impairments. Despite scores of pages of exhibits,

Delgado has presented no evidence that his failure to obtain a job was the result of his

injury.No. 07

‐ 3140 Page 6

Delgado also argues that he is disabled under the ADA because Certified regarded

him as disabled. This argument hangs on an even thinner reed. Delgado maintains that the

fact that he was fired after being placed on permanent lifting restrictions is sufficient

evidence that Certified regarded him as disabled. But the evidence in the record shows only

that Certified fired Delgado because he could no longer perform his specific job as a

warehouse picker. It is unclear how the circumstance of Delgado’s termination, in itself,

could be evidence that Certified regarded him as unable to work in a broad class of jobs. See

Kupstas

, 398 F.3d at 613. At most, Delgado’s termination demonstrates only that Certified

regarded him as unable to work in the specific job of warehouse picker. Cf. id. at 612. This

is insufficient to show discrimination. Id. at 614

‐ 15; Toyota Motor Mfg., Ky., Inc. v. Williams,

534 U.S. 184, 200 (2002). Delgado has failed to present any other evidence that he was

disabled under the ADA, and thus his claim must fail.

Moreover, even if Delgado were able to demonstrate that he is disabled, he has failed

to show that there is a genuine issue of material fact regarding whether he is a “qualified

individual with a disability” under the ADA. A qualified individual with a disability is

“‘an individual with a disability who, with or without reasonable accommodation, can

perform the essential functions’” of the job that he has or desires. Sears, Roebuck & Co.

, 417

F.3d at 797 (quoting 42 U.S.C. § 12111(8)). The ADA requires that an employer make

“‘reasonable accommodations’ to a disabled qualified employee’s limitations, unless the

employer can demonstrate that to do so would impose an ‘undue hardship.’” Id. at 802

(quoting 42 U.S.C. § 12112(b)(5)(A)). The burden is on the plaintiff to show that there is a

vacant position for which he is qualified, and only then may we consider whether the

failure to provide an accommodation was caused by a flaw in the interactive process.

Jackson v. City of Chicago

, 414 F.3d 806, 813 (7th Cir. 2005).

The parties do not dispute that Delgado’s work restrictions prevented him from

working in the refrigerated warehouse. But Delgado has failed to submit evidence that

there was any reasonable way for Certified to accommodate that restriction, nor does he

point to any available positions for which he was qualified. Delgado maintains that

Certified should have accommodated his disability by transferring him to a permanent

light

‐ duty position. He contends that the fact that Certified allowed him to perform light

‐ duty work for more than eight weeks “calls into question the temporary nature of light duty

work.” Although it is true that Certified permitted Delgado to remain on light duty for

longer than the eight

‐ week maximum specified in the collective bargaining agreement, this

is not enough to “call into question” the temporary status of light

‐ duty work, nor should

Certified be punished for maintaining a flexible rehabilitation program. The undisputed

evidence shows that Certified often allowed its employees to remain on light duty as long as

they were reasonably expected to fully recuperate. The record also shows that noNo. 07

‐ 3140 Page 7

1 Delgado suggests that the merger of two local unions made jobs available that he

could have worked. There is no evidence in the record, however, suggesting that such a

merger would expand the universe of jobs available to Delgado, that Delgado was qualified

for any jobs covered by the merged bargaining unit, or that any vacancies existed for any

jobs covered by that bargaining unit. permanent light

‐ duty positions existed at Certified. The ADA does not require Certified to

create a job for Delgado or permanently assign him to light

‐ duty work. See Watson v.

Lithonia Lighting, 304 F.3d 749, 752 (7th Cir. 2002). 1 Therefore, Delgado has failed to meet his

burden to show that Certified could have made reasonable accommodations.

Because Delgado has failed to show that he is disabled under the ADA, we AFFIRM

the judgment of the district court.