In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-2338

SCOTT E. SCHEERER,

Plaintiff-Appellant,

v.

JOHN POTTER, Postmaster General,

United States Postal Service,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 04-C-0611-S—John C. Shabaz, Judge.

____________

ARGUED JANUARY 5, 2006—DECIDED APRIL 10, 2006

____________

Before FLAUM, Chief Judge, and ROVNER and WILLIAMS,

Circuit Judges.

WILLIAMS, Circuit Judge. Plaintiff-Appellant Scott

Scheerer filed suit against the United States Postal Service,

claiming that it failed to reasonably accommodate his

suffering from diabetic symptoms by refusing to hire a

replacement clerk in a timely fashion. Granting summary

judgment in favor of the Postal Service, the district court

ruled that Scheerer could not establish as a matter of law

that he was disabled under the Rehabilitation Act, 29

U.S.C. § 794 (2000). We affirm.
2 No. 05-2338

I. BACKGROUND

In 1993, Scheerer became the full-time postmaster in

a small post office located in Wonewoc, Wisconsin. At

that time, he had the assistance of a clerk who worked

approximately thirty hours per week. In 1998, the public hours of the post office were reduced and the clerk’s

hours were also reduced to approximately fifteen hours

per week. In July 2002, the clerk transferred to another

location, leaving Scheerer to work alone in the post office.

The timing of the clerk’s transfer could not have been

worse for Scheerer because his Type 2 diabetes, which had

been first diagnosed in 1993, began to worsen progressively

throughout the years 2002 and 2003. For instance, during

April 2002, Scheerer developed a diabetic ulcer on his left

foot as a result of neuropathy in sections of his left foot (this

diabetic ulcer healed in August 2002). In addition, throughout 2002, Scheerer’s physician showed increasing concern

for his weight condition and recommended significant

dietary changes. At the end of 2002, Scheerer’s condition

had worsened, and he began insulin injections (two times

per day) for the first time.

On December 9, 2002, Scheerer notified his supervisor,

Janet Bieschke, that he was diabetic and that he was

experiencing deteriorating health. He also requested

additional help at work. (In fact, Scheerer had protested the

potential loss of a clerk for many months, although his

initial protest was not tethered to his health condition, but

rather the increased work responsibilities he would likely

face.) The Postal Service refused Scheerer’s December 9,

2002 request for a replacement clerk.

On January 13, 2003, Scheerer contacted the Postal

Service’s Equal Opportunity office for pre-complaint

counseling (the governing statute required Scheerer to seek

such counseling within forty-five days of an adverse

employment “event”). During this time, Scheerer’s symp-
No. 05-2338 3

toms worsened, and around February 20, 2003, he developed diabetic ulcers on both feet. Scheerer continued his

demands for a replacement clerk. On March 5, 2003, he

wrote to Bieschke requesting a replacement clerk; he then

followed up this request with another letter on March 15,

2003, which made similar requests and this time included

photographs of his diabetic ulcers. Bieschke did not respond

to these letters.

On March 21, 2003, Scheerer’s physician provided a

medical restriction that limited Scheerer’s workday to a

maximum of four hours. Scheerer forwarded this medical restriction to Bieschke. This letter prompted the

desired response: four days later, on March 25, 2003,

Bieschke authorized a replacement clerk, effective April 5,

2003.

On April 21, 2003, Scheerer filed a formal complaint with

the Postal Service’s Equal Opportunity office, which then

led to the present suit. On March 4, 2005, the district court

granted summary judgment in favor of the Postal Service,

holding that Scheerer could not establish that he was

disabled under the Rehabilitation Act because he could not

show that he was severely limited in any major life activities, such as walking, sleeping, eating, and sexual reproduction. This appeal followed.

II. ANALYSIS

To establish a prima facie case under the Rehabilitation Act, Scheerer must show that he: (1) suffers from a

substantial limitation of a major life activity (i.e., he is

disabled under the terms of the statute); (2) is otherwise

qualified to perform the essential functions of his job, with

or without reasonable accommodation; and (3) has suffered an adverse employment decision because of the

disability. Peters v. City of Mauston, 311 F.3d 835, 842 (7th

Cir. 2002). Because of the similarity between the prima
4 No. 05-2338

1 The parties dispute whether the pertinent time period for

determining whether Scheerer was disabled should be frozen at

January 13, 2003, when Scheerer initially requested pre-complaint processing, or should continue forward until April 5, 2003,

when the Postal Service provided a replacement clerk. Because it does not alter our analysis, we will assume—without

deciding—that our analysis should include the time period up

until April 5, 2003.

facie requirements under Rehabilitation Act and the

Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12111

et seq. (2000), we look to our case law under the ADA to

determine whether a plaintiff has established his prima

facie burden. Id.

The dispositive issue in this appeal is whether Scheerer

can establish that he was disabled by providing sufficient

evidence that he suffered from a substantial limitation of a

major life activity. The crucial inquiry for purposes of this

appeal is whether Scheerer’s “limitation is substantial or

considerable in light of what most people do in their daily

lives, and whether the impairment’s effect is permanent or

long term.” EEOC & Keane v. Sears, Roebuck & Co., 417

F.3d 789, 801 (7th Cir. 2005). To meet this requirement,

Scheerer must be able to show that during the pertinent

time period1

 he was either prevented or severely restricted

from such major daily tasks, such as walking, eating,

sleeping, or sexual reproduction. Toyota Motor Mfg., KY,

Inc. v. Williams, 534 U.S. 184, 195-99 (2002); Bragdon v.

Abbott, 524 U.S. 624, 637-38 (1998). This is a high standard

to meet. See id. To survive summary judgment, the plaintiff

must provide specific facts establishing that there is a

genuine issue of material fact as to whether he is substantially limited in a major life activity. Id. Specific facts are

required; conclusory allegations will not do. Moore v. J.B.

Hunt Transp., Inc., 221 F.3d 944, 951-52 (7th Cir. 2000).
No. 05-2338 5

This court has held that diabetic status, per se, does

not qualify a plaintiff as disabled under the ADA. Nawrot

v. CPC Int’l, 277 F.3d 896, 904 (7th Cir. 2002). Instead,

we look to the individual impairments suffered by the

diabetic individual to examine whether he meets the high

threshold of establishing a genuine issue of material fact as

to substantial limitation. Id. For instance, in Lawson v.

CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001), we held

that a plaintiff who suffered from severe Type 1 (insulin

dependent) diabetes and who was on a diet that severely

restricted the types of foods he could eat, such that “dire

and immediate consequences” would follow if he failed

to maintain the strict dietary regimen, could be considered disabled under the ADA. Id. at 924. In Nawrot, we

held that a plaintiff who could not completely control his

blood sugar level, and, as a result, suffered from “unpredictable hypoglycemic episodes, of such extreme consequence

that death is a very real and significant risk,” as well as

possible impaired ability to think coherently and loss of

consciousness or cognitive ability, could establish disability

under the ADA. Nawrot, 277 F.3d at 905. In Branham v.

Snow, 392 F.3d 896 (7th Cir. 2004), we held that a diabetic

who was “significantly restricted as to the manner in which

he can eat” had established a genuine issue of material fact

as to whether he was disabled under the Rehabilitation Act.

Id. at 903.

Here, the district court held that Scheerer could not

establish that he suffered a substantial limitation in major

life activities, such as walking, eating, sleeping, or sexual

reproduction. The record does not indicate otherwise.

Although there can be no doubt that Scheerer suffered from

pain and significant inconvenience from his progressively

worsening diabetic condition, he does not point to enough

evidence in the record to show that he was prevented from

performing, or was otherwise severely restricted in, any

major life activities. During the pertinent time period,
6 No. 05-2338

Scheerer did not experience many of the more severe

symptoms of diabetes, including severe hypoglycemia,

seizures, or loss of consciousness. This suggests that his

diabetes had not yet worsened to such a stage where it

severely restricted his major life activities.

For instance, Scheerer cannot establish that he was

severely restricted in walking or standing. Although

Scheerer relied on a cumbersome protective boot for a

period of time because of his diabetic ulcers and experienced

intermittent episodes of significant neuropathy, he nonetheless was generally able to walk and stand during the

pertinent time period. Indeed, he conceded that he routinely

completed all of his work duties during his eight-hour shift,

and these duties appear to have included significant periods

of standing or walking, although the record is admittedly

somewhat underdeveloped on the exact nature of his job

duties with respect to standing and walking. In any event,

although Scheerer reported to the Postal Service that he

“could hardly stand” at the end of his shift, there is nothing

in the record indicating that his physicians determined that

prior to March 25, 2003, (when he received a medical

restriction) he was severely limited in his ability to stand or

walk. Cf. Keane, 417 F.3d at 802 (holding that a reasonable

jury could find that a plaintiff’s neuropathy, which prevented the plaintiff from walking more than one city block,

was a substantial limitation compared to the walking that

most people do daily). In addition, once Scheerer’s condition

progressed further, such that he received a medical restriction limiting his workday to four hours, the Postal Service

immediately approved a replacement clerk, who was

at work within ten days of Scheerer’s notification of his

limited workday.

In a similar vein, Scheerer did not present evidence

showing that his dietary restrictions were sufficiently

severe to rise to the level of a substantial limitation. That

is, the predominant purpose of his dietary restrictions
No. 05-2338 7

2 Scheerer also refers to his psychological condition, which carries

a diagnosis of “adjustment disorder with mixed emotional features.” He does not spell out precisely how this condition

results in a substantial limitation in a major life activity, aside

from references to sleep disruption, which, as noted above, are not

intrusive enough to qualify as a disability under the statute.

Adjustment disorders are, by diagnostic classification, short-term

psychological responses to life stressors, typically lasting less than

six months. See AM.PSYCHIATRIC ASS’N,DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 309.40 (4th ed. 1994).

Scheerer does not argue that his psychological condition, standing

alone, amounts to a disability under the ADA, and, under the

circumstances here, it surely could not. Cf., e.g., Bultemeyer v.

Fort Wayne Cmty. Sch., 100 F.3d 1281, 1284, 1287 (7th Cir. 1996)

(holding that plaintiff with a history of paranoid schizophrenia

and bipolar disorder was disabled under the ADA).

was to lose weight—as millions of other non-disabled

individuals seek to do—rather than to control rapid fluctuations of his blood sugar levels that could lead to immediate

and dire consequences. Moreover, his diet followed the

general contours of the diets of most individuals seeking to

lose weight. Thus, there is nothing in the record tending to

show that his dietary restrictions were of the type of severe

dietary restrictions that if not followed would lead to “dire

and immediate consequences,” or alternatively, were so

unusually restrictive that they could impose a substantial

limitation on the major life activity of eating. Cf. Lawson,

245 F.3d at 924.

Scheerer’s evidence pertaining to severe restrictions in his

ability to sleep is also insufficient. Scheerer’s evidence on

sleeping difficulties establishes, at most, intermittent

disrupted sleep, but it cannot establish the type of prolonged, severe and long-term sleep difficulties that can

amount to a substantial limitation in the major life activity

of sleeping.2 Pack v. Kmart Corp., 166 F.3d 1300, 1306 (10th

Cir. 1999) (holding that intermittent or treatable sleep
8 No. 05-2338

difficulties that resulted from major depression did not

substantially limit the major life activity of sleep).

Finally, Scheerer’s evidence pertaining to a substantial

limitation in sexual reproduction is insufficient. Scheerer

complains of reduced sexual drive and difficulty in obtaining erections; he must rely on injections to sustain

an erection. His complaint is limited reduced sexual

activity, untethered to impairments in sexual reproduction.

This alone may be fatal to his claim because this court has

not recognized lowered sexual drive or impotence as the

types of disruptions than can amount to a disability under

the ADA or the Rehabilitation Act. See Contreras v. Suncast

Corp., 237 F.3d 756, 764 n.6 (7th Cir. 2001). In Contreras,

we recognized that severe limitations in the ability to

engage in sexual activity for the purposes of reproduction

(such as when an HIV-positive individual refrains from

sexual activity because of fear of transmission to an offspring) could amount to an impairment of a major life

activity in certain circumstances. Id. at 764, citing Bragdon

v. Abbott, 524 U.S. 624, 638-39 (1998). But in Contreras we

specifically distinguished that type of scenario from one in

which the plaintiff is merely complaining of “a change in the

frequency” with which he “can engage in intercourse,”

without showing “any significant impact on his ability to

reproduce.” Id. Thus, the type of impairment that Scheerer

raises here—namely, reduction in sexual desire and erectile

dysfunction—does not significantly limit his capacity to

reproduce, and therefore is not likely to be a substantial

limitation in the major life activity of reproduction. See id;

cf. Bragdon, 524 U.S. 624.

In addition, even if this court were to recognize that the

impairments in sexual activity that Scheerer addresses,

irrespective of their impact on reproductive ability, could

amount to a substantial limitation in a major life activity,

Scheerer does not present enough evidence that he is

substantially limited in these areas. That is, he concedes
No. 05-2338 9

3 As noted above, Scheerer’s psychological condition is not a

severe or long-term psychological disorder, and, as a result, its

effect on Scheerer’s sexual drive is necessarily neither severe

nor long-term.

that he is still able to engage in sexual activity, although it

requires limited medical assistance. And nothing in

the record indicates the type of medical or psychological

conditions that necessarily render his lowered sexual

drive a long-term, much less permanent, circumstance.3

(Even if he could provide such evidence, Scheerer fails to

explain in what fashion the Postal Service could reasonably

accommodate his diabetes in the context of symptoms of

sexual dysfunction.)

As a final note, Scheerer repeatedly argues that the

district court erred in not considering the progressive

and deteriorating nature of his disease to determine

whether he was disabled. But taken to its logical conclusion,

Scheerer’s argument here would result in any individual

with a progressive disease being designated as disabled at

any point in time, merely because of the likely progressive

nature of the impairment. The clear problem with this

proposal is that it necessarily requires employees, employers, administrative bodies, and, inevitably, courts to

speculate and predict on the likely future course of a

progressive disease. Cf. Bragdon, 524 U.S. at 637 (holding

that asymptomatic HIV could be a physical impairment that

substantially limits the major life activity of reproduction

because its effects are immediate on reproductive decisions).

Given the wide variety of potential outcomes across individuals, particularly when considered in tandem with potential

treatments, possible interventions, and general individual

differences in response to progressive diseases, this is

plainly an unworkable solution. Instead, the better course

(and one mandated by the statute) is to require an individ-
10 No. 05-2338

4 At oral argument, Scheerer’s counsel raised, for the first time,

the argument that Scheerer’s subsequent amputation may

have been related to the Postal Service’s failure to reasonably

accommodate Scheerer in a more timely fashion. Setting aside the

likely waiver of these issues, because we hold that Scheerer could

not establish that he was disabled, we need not reach

the threshold issue of whether Scheerer’s request for a replacement clerk was a reasonable request, or, assuming it was,

whether the Postal Service’s response was adequate under the

statute.

ual to meet the requirements of disability at the time he

seeks protections under the Rehabilitation Act.

The discussion above is not intended to minimize the

significant suffering and pain experienced by the plaintiff here. There can be no doubt that he has experienced

numerous difficulties that have impacted his life, and,

indeed, in August 2003 he suffered an amputation of his

right foot (several months after the Postal Service had

reasonably accommodated him).4

 The Rehabilitation Act,

however, requires a significantly higher level of impairment

than Scheerer (fortunately) can show during the pertinent

time period, and, as a result, summary judgment was

appropriate in this case.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s

grant of summary judgment in favor of the defendant.
No. 05-2338 11

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—4-10-06