Craig Steffen v. Patrick R. Donahoe

In the

United States Court of Appeals

For the Seventh Circuit

No. 11-2664

C RAIG S TEFFEN,

Plaintiff-Appellant,

v.

P ATRICK R. D ONAHOE,

Postmaster General, et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 09-C-120—Aaron E. Goodstein, Magistrate Judge.

A RGUED F EBRUARY 15, 2012—D ECIDED M ARCH 21, 2012

Before P OSNER, F LAUM, and M ANION, Circuit Judges.

F LAUM, Circuit Judge. Craig Steffen was a part-time

employee of the United States Postal Service (“USPS”)

from 1987 to 2006. Due to a back injury, however, Steffen

worked only one week in the last three years of his tenure

with the USPS. The USPS claims that Steffen did not

properly apply for leave during those three years, nor did

he submit the proper paperwork to substantiate that he

2 No. 11-2664

was, in fact, injured. Nonetheless, the USPS agreed to

allow him to return to his job, provided that he did not

have any restrictions on his ability to work. In the

event that he was limited in his capacity to perform his

job, USPS agreed that he could file for disability retirement.

Upon evaluation, Steffen’s physician placed restrictions

on his work activity. Steffen did not file for disability

retirement. The USPS, therefore, fired him.

Steffen claims that his termination constitutes dis-

ability discrimination under the Rehabilitation Act of

1973 (the “Rehab Act”) and the Americans with Disabil-

ities Act (the “ADA”). Defendants—the Postmaster

General and the USPS—filed a motion for summary

judgment, arguing that Steffen is not “disabled” under

the Rehab Act and the ADA, and, thus, has no claim

under those statutes. The district court agreed with the

defendants and dismissed Steffen’s claim. We affirm

the judgment of the district court.

I. Background

A. Factual Background

Craig Steffen was a part-time mail handler for the

USPS in Milwaukee from 1987 until his termination in

2006. For the last three of those years, however, he did not

actually work. In 1998, Steffen suffered an injury to his

back while on the job. He took two weeks off to recover,

ultimately returning to “light-duty” work until May 2003.

At that time, Steffen reinjured himself at work. Except for

No. 11-2664 3

one week in July 2003, he did not return to work for

the USPS at any point leading up to his termination on

January 10, 2006.

During the two-and-a-half years that Steffen was not

working, his supervisor, Charles Spahn, repeatedly

attempted to get him either to return to work or to pro-

duce documentation regarding his injury. Spahn con-

tacted Steffen’s union, but his efforts were unsuccessful.

In January 2005, Spahn wrote Steffen a letter stating that

he would be fired on February 11, 2005 for being absent

without leave, for failing to maintain a regular schedule,

and for failing to follow instructions regarding any pos-

sible leave for which he was eligible. Steffen responded

by contacting his union, which filed a grievance on his

behalf. In October 2005, Steffen entered a pre-arbitration

settlement agreement (the “Settlement Agreement”)

with the USPS. The Settlement Agreement included the

following language:

Grievant will be returned to duty provided he suc-

cessfully meets all medical requirements for his posi-

tion. Grievant has a scheduled appointment the

first week in November 2005 with his physician.

Grievant must contact the Milwaukee Postal

Medical Unit for a FFD if it is determined by his

physican that he may return to full duty. He must

make contact with the Postal Medical Unit by Novem-

ber 11, 2005, for a FFD. He must cooperate with all

recommendations by the Postal Medical Unit.

The parties agree that Craig Steffen will apply for

disability retirement if he is unable to return to full

4 No. 11-2664

duty after his determination from his physician in

November. He must submit his application for disabil-

ity retirement within 30 days of his physician’s find-

ings. If he fails to apply for disability retirement

within the 30 days or if the disability retirement is

disapproved he must resign from the Postal Service

within 15 days of the determination.

Steffen’s union representative did not explain the Settle-

ment Agreement to him. As he understood the Settlement

Agreement, the term “full duty” meant that he was to

return to the light-duty job that he performed from 1998

through 2003. Emma Hughes, the USPS representative

involved in the Settlement Agreement, intended the

term “full duty” to mean that Steffen could not return

to work with any restrictions on his performance or

requiring accommodations.

In keeping with the Settlement Agreement, Steffen

visited his physician, as well as a second physician

in December 2005. His physicians cleared him to return

to work, but imposed several permanent restrictions on

his abilities. The first physician told Steffen to avoid

lifting, pushing, and pulling more than 25 pounds; stand-

ing for more than two hours at a time; and repetitively

bending, stooping, climbing, reaching, and twisting. He

also encouraged Steffen to alternate between sitting and

standing. The second physician agreed. In response to

these restrictions, the USPS physician determined that

Steffen was unfit for “full duty,” interpreting “full duty”

to mean no restrictions. Steffen did not file for disability

retirement, nor did he resign. He was terminated on

No. 11-2664 5

January 10, 2006, based on his violation of the Settlement

Agreement.

B. Procedural Background

Steffen filed a grievance in arbitration against the

USPS, claiming discrimination based on disability. His

claim was dismissed when the arbitrator determined

that the matter was not subject to arbitration. Steffen

then filed a complaint with the Equal Employment Op-

portunity Commission (the “EEOC”). After a three-year

investigation, the EEOC found that no discrimination

took place when Steffen was fired. Finally, Steffen filed

a disability discrimination suit pro se in federal court on

February 5, 2009. He eventually obtained counsel.

Steffen filed a Complaint, followed by an Amended

Complaint, followed by a Second Amended Complaint.

The defendants did not contest the filing of the Second

Amended Complaint on the condition that Steffen stipu-

lated to the fact that he was not legally disabled.

This stipulation limited him to the claim that he was

discriminated against because he was “regarded as”

disabled by the USPS. Steffen obliged. Steffen argued that

the USPS regarded him as being disabled and fired him

based on this perceived disability, in violation of the Rehab

Act.1 He requested both damages and reinstatement.

1

Because the USPS is an agency of the federal government

and not a private employer, Steffen’s claims are brought under

(continued...)

6 No. 11-2664

After discovery, the defendants moved for summary

judgment, and Steffen moved for partial summary judg-

ment. Steffen argued that the USPS’ entrance into the

Settlement Agreement constituted a per se violation of

the Rehab Act since it had a “100% healed” clause. In

response, the defendants maintained that they did not

regard Steffen as being disabled, but also argued that

even if Steffen established a prima facie case of discrimina-

tion, they had a non-discriminatory reason to fire him.

Specifically, the defendants argued that they fired

Steffen due to his attendance record and failure to

comply with the Settlement Agreement.

The district court granted the defendants’ motion for

summary judgment. First, it held that the Congress’

amendments to the ADA that took effect in 2009 (the

“Amendments”) did not apply to Steffen’s claim as he

contended. Steffen was fired before the Amendments

were passed, and, the district court ruled, the Amend-

ments are not retroactive. Prior to the Amendments, an

employee was “regarded as” having a disability if his

employer believed that he had an impairment that “sub-

stantially limit[ed] one or more major life activities.” 45

1

(...continued)

the Rehab Act, PL 93-112, 87 Stat. 355, and not the ADA. This

Court, however, “looks to the standards applied under the . . .

ADA to determine whether a violation of the Rehab Act

occurs in the employment context.” Peters v. City of Mauston,

311 F.3d 835, 842 (7th Cir. 2002) (internal citations omitted);

29 U.S.C. § 794(d). Thus, we refer to the Rehab Act and the

ADA interchangeably.

No. 11-2664 7

C.F.R. § 84.3 (2001). After the Amendments took effect, an

employee could be “regarded as” having a disability as

long as an employer believed that employee to be im-

paired, whether or not that perceived impairment sub-

stantially limited a major life activity. 42 U.S.C. § 12102.

Applying the pre-Amendments standard, the district

court concluded that the USPS knew of Steffen’s back

injury, but did not consider that impairment to substan-

tially limit a major life activity. In reaching this decision,

the district court found that Steffen’s limitations, such

as his inability to lift more than 25 pounds, have not

been considered substantial limitations on major life

activities in past cases. The district court also found

that the USPS did not believe that his doctors’ recom-

mendations understated the extent of his limitations.

Accordingly, the USPS did not regard Steffen as having

a disability for the purposes of the Rehab Act, and he

could not suffer discrimination for being “disabled.”

The district court further reasoned that the USPS’

requirement that Steffen be 100% healed before he return

to work—codified in the “full duty” provision of the

Settlement Agreement—violated the Rehab Act.2 How-

ever, the district court held, as Steffen was not covered

by the Rehab Act, he did not have standing to challenge

2

The court reasoned that a “100% healed” policy prevents

an employer from individually assessing each employee as to

whether his impairment prevents him from completing his

job. Since such individualized evaluation is requried by

the ADA, the district court concluded that a “100% healed”

policy constitutes a per se violation of the law.

8 No. 11-2664

the USPS’ failure to engage in an individualized assess-

ment. Steffen appeals the judgment of the district court.

II. Discussion

We review a district court’s grant of summary judg-

ment de novo, construing all facts in favor of the

non-moving party—in this case, Steffen. Kupstas v. City

of Greenwood, 398 F.3d 609, 611 (7th Cir. 2005). Summary

judgment is appropriate “if the movant shows that there

is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” FED. R.

C IV. P. 56(a); Kupstas, 398 F.3d at 611. In other words, if “a

rational trier of fact could not find for [Steffen],” then the

district court did not err in granting summary judgment.

Rogers v. City of Chicago, 320 F.3d 748, 752 (7th Cir. 2003).

Steffen argues that sufficient evidence existed for a

reasonable jury to find that the USPS regarded him as

disabled at the time of his firing, thereby allowing him

to bring a claim under the Rehab Act. Steffen also argues

that the “100% healed” requirement thrust upon him

by the USPS was a per se violation of the Rehab Act.

Steffen does not appeal the district court’s denial of his

summary judgment motion. Rather, he asks us to reverse

the district court’s grant of summary judgment for the

defendants and to remand the case for trial.

A violation of the ADA or the Rehab Act occurs when

a covered entity “discriminate[s] against a qualified

individual on the basis of disability in regard to job

application procedures, the hiring, advancement, or

No. 11-2664 9

discharge of employees, employee compensation, job

training, and other terms, conditions, and privileges of

employment.” ADA, 42 U.S.C. § 12112(a); see also Garg v.

Potter, 521 F.3d 731, 736 (7th Cir. 2008) (“The [ADA] and

Rehabilitation Act prohibit an employer from discrim-

inating against a qualified individual with a disability

because of the disability.”) (internal quotation marks and

citations omitted).

As an initial matter, Steffen must show that he is dis-

abled as defined by the Rehab Act, the ADA, and the

relevant regulations.3 Under the ADA, disability means:

“(1) [a] physical or mental impairment that substantially

limits one or more of the major life activities of such

individual; (2) [a] record of such an impairment; or

(3) [b]eing regarded as having such an impairment.”

29 C.F.R. § 1630.2(g) (2007); see also Kotwica v. Rose Packing

Co., Inc., 637 F.3d 744, 748 (7th Cir. 2011).4

According to the parties’ stipulation, Steffen dropped

any claim that he qualified for protection under the

Rehab Act on the basis of actual disability. Nor does he

argue that there is a record of his disability. He, thus,

3

Congress has not granted the EEOC the authority to interpret

the ADA. See Winsley v. Cook County, 563 F.3d 598, 604 n.2

(7th Cir. 2009). Nonetheless, both parties cite the EEOC’s

regulations, see 29 C.F.R. § 1630.2., and we, in turn, examine

them as instructive guidance.

4

For an explanation of why the 2001 version of the EEOC’s

regulations are cited rather than the current regulations, see

infra Part II.A.

10 No. 11-2664

hinges his claim for protection under the ADA and Rehab

Act on the fact that the USPS regarded him as being

disabled under the ADA. The district court, he con-

tends, erred in concluding otherwise.

A. ADA Amendments

Before analyzing whether the district court erred in its

assessment, we must first address Steffen’s argument

that the 2009 Amendments to the ADA apply to his case,

as they directly implicate the standard for determining

whether an employee is “regarded as” disabled by his

employer. Prior to the Amendments, an employee was

not “regarded as” disabled by his employer unless his

employer believed he satisfied the definition of “disabled”

under the ADA. See Sutton v. United Air Lines, Inc., 527

U.S. 471, 489 (1999); 29 C.F.R. § 1630.2(l)(2007). Thus, an

employee believed to have an impairment was not “re-

garded as” disabled unless his employer believed that

impairment substantially limited the employee in a

major life activity. Id. The Amendments changed this

standard, decreeing that “[a]n individual meets the re-

quirement of ‘being regarded as having such an impair-

ment’ if the individual establishes that he or she has

been subjected to an action prohibited under this chapter

because of an actual or perceived physical or mental

impairment whether or not the impairment limits or is

perceived to limit a major life activity.” 42 U.S.C. § 12102.

Steffen concedes that our case law prevents him from

arguing that the Amendments apply to his case. See

Fredricksen v. United Parcel Serv., Co., 581 F.3d 516, 521 n.1

No. 11-2664 11

(7th Cir. 2009) (“Congress did not express its intent for

[the Amendments] to apply retroactively, and so we look

to the law in place prior to the amendments.”). He none-

theless cites a district court case from the District of

Columbia for the proposition that the Amendments

revealed Congress’ true intent when it originally passed

the ADA. He urges us to follow that court and treat the

Amendments as persuasive authority in interpreting the

old version of the ADA. As the district court in this case

rightly pointed out, however, Steffen simply repackages

a retroactivity argument repeatedly rejected by this

Court, see, e.g., Gratzl v. Office of Chief Judges of 12th, 18th,

19th, and 22nd Judicial Circuits, 601 F.3d 674, 679 n.3

(7th Cir. 2010), and we cannot accede to his request with-

out shirking our obligation to “cite, quote, and apply

the ADA as it stood before the amendments.” EEOC v.

Autozone, Inc., 630 F.3d 635, 639 n.2 (7th Cir. 2010).

Steffen secondly argues that even if the Amendments

are not applied to his entire case, they should apply to

his requests for future relief. Specifically, he requests

that we follow the Amendments when considering in-

junctive relief in the form of his reinstatement. He directs

us to Jenkins v. National Board of Medical Examiners, an

unpublished opinion in which the Sixth Circuit held

that the Amendments are appropriately applied when

prospective relief is sought. No. 08-5371, 2009 WL 331638,

at *2 (6th Cir. Feb. 11, 2009). In Jenkins, a third-year med-

ical student sought more time on his medical boards as

an accommodation for his reading disorder. Id. at *1. The

Sixth Circuit explained that “[w]hen the intervening

statute authorizes or affects the propriety of prospective

12 No. 11-2664

relief, application of the new provision is not retroactive.”

Id. (quoting Landsgraf v. USI Film Products, 511 U.S. 244, 273

(1994)). Thus, the Sixth Circuit evaluated the plaintiff’s

claim under the new ADA. Steffen argues that the same

principle should apply to his requests for prospective

relief.

Assuming arguendo we follow the Sixth Circuit’s

application of the Amendments, Jenkins is inapt in this

case. In Jenkins, the plaintiff filed his case before the

Amendments were passed, but the alleged violation of

the ADA did not occur until after Congress amended

the statute. Id. at *1. The plaintiff knew that he had an

impending exam and wanted to secure an accommoda-

tion before the test occurred. Id. The law in effect at the

time of the relevant conduct—the denial of an accom-

modation during the examination—was the amended

version of the ADA. Id. Indeed, the Sixth Circuit recog-

nized this timing as distinguishing the case from cases

in which “actions giving rise to the litigation occurred

before the effective date of the amendments.” Id. at *2.

Unlike in Jenkins, the allegedly violative actions in this

case transpired before the effective date of the Amend-

ments. The fact that Steffen asked to be reinstated for

the USPS’ past transgressions does alter the fact that he

is complaining of allegedly illegal behavior that took

place in 2006: he does not ask this court for injunctive

relief. Accord Geiger v. Pfizer, Inc., No. 2:06-CV-636, 2009

WL 973545, at *2 (S.D. Ohio Apr. 10, 2009). The old

version of the ADA controls this case.

No. 11-2664 13

B. “Regarded As”

The applicable version of the ADA requires an

employer to believe that an employee is substantially

limited in a major life activity in order for that employee

to be “regarded as” disabled under the ADA. 29

C.F.R. § 1630.2(l); Sutton, 527 U.S. at 489. An employer so

regards his employee if: “(1) [the employer] mistakenly

believes that [the employee] has a physical impairment

that substantially limits one or more major life activities,

or (2) [the employer] mistakenly believes that an actual,

nonlimiting impairment substantially limits one or more

major life activities.” Sutton, 527 U.S. at 489 (emphasis

added). Importantly, however, the fact that an em-

ployer offers an employee an accommodation does not

necessarily prove that the employer believed the

employee suffered a substantial limitation in a major life

activity. Kupstas, 398 F.3d at 614. To succeed under the

“regarded as” prong, a plaintiff must establish an

accepted major life activity under the ADA and prove

that his employer believed him to be substantially

limited in that major life activity.

1. Major Life Activity

The EEOC regulations interpreting the ADA list as

major life activities “caring for oneself, performing man-

ual tasks, walking, seeing, hearing, speaking, breathing,

learning, and working.” 29 C.F.R. § 1630.2(i) (2007). This

list has not been interpreted as being exclusive, see

Winsley v. Cook County, 563 F.3d 598, 603 (7th Cir. 2009),

but, prior to the Amendments, courts were careful not

14 No. 11-2664

to refer to life activities as being major unless they were

“of central importance to daily life.” Toyota Motor Mfg. v.

Williams, 534 U.S. 184, 197 (2002); see also Winsley, 563

F.3d at 603 (“[T]he listed activities are so important to

everyday life that almost anyone would consider himself

limited in a material way if he could not perform them.”).

Notably, Steffen, in his brief, does not expressly

identify the major life activity in which he is allegedly

limited. In his Second Amended Complaint, how-

ever, he claims that he was limited in the “major life

activities of engaging in motor skills, including repetitive

bending, stooping, climbing, reaching and twisting.” He

also claims that he was limited to lifting no more than

25 pounds, that he could not stand for more than 2 hours,

and that he needed to alternate between sitting and

standing. Steffen also implies that he would not have

been able to return to “full duty” work, suggesting that he

may have been asserting a substantial limitation in the

major life activity of working. Assuming arguendo that

Steffen has not waived his proposed major life activities

by omitting them from his brief, he has not proven that,

for any activities that qualified as major life activities

prior to the Amendments, the USPS regarded him as

substantially limited in his ability to perform them.5

5

We note that with respect to the major life activities Steffen

identifies in his Second Amended Complaint, if they qualify

as major life activities at all, Steffen was not substantially

limited as defined by the ADA and Rehab Acts. That is, the

USPS’ beliefs aside, he was not legally handicapped. This

Circuit’s pre-Amendment jurisprudence clearly indicated that

(continued...)

No. 11-2664 15

5

(...continued)

an inability to lift 25 pounds was not a substantial limitation

on a major life activity. See, e.g., id. (inability to lift 35 pounds

was not a substantial limitation); Squibb v. Mem’l Med. Ctr.,

497 F.3d 775, 782 (7th Cir. 2007) (inability to lift 25-30 pounds

not a substantial limitation); Mays v. Principi, 301 F.3d 866,

870 (7th Cir. 2002) (expressing doubt that an inability to lift

10 pounds could be considered a substantial limitation). As

with lifting, this Circuit’s pre-Amendment precedent did not

explicitly comment on bending as a major life activity. In light

of the standard established in Toyota, however, we do not

think that bending is central to one’s daily life. 534 U.S. at 197.

Furthermore, Steffen is precluded only from engaging in

bending, stooping, climbing, reaching and twisting repetitively,

fostering doubts not only about whether repetitive bending,

independent of bending, is a major life activity, but also

about whether the inability to perform these movements

repetitively is a substantial limitation on the acts. This Court,

in Williams v. Excel Foundry & Machine, Incorporated, recognized

standing as a major life activity. 489 F.3d 309, 311 (7th Cir. 2007).

In Williams, however, we rejected as a substantial limitation

the inability to stand for 30 to 40 minutes—a hindrance much

greater than Steffen’s inability to stand for over two hours.

Finally, Steffen does not qualify as substantially limited in the

major life activity of working. To be substantially limited in

one’s ability to work, one must be significantly restricted in

the ability to perform more than just a single job or the particu-

lar job that one held before he acquired a disability. 29

C.F.R. § 1630.2(3)(I). Steffen was not precluded from performing

a broad range or an entire class of jobs. In fact, the USPS

provided an accommodation for Steffen based on the same

injury he had when he was fired for the several years prior to

(continued...)

16 No. 11-2664

2. Substantially Limited

The EEOC’s regulations interpreting the ADA, define

“substantially limits” as:

Unable to perform a major life activity that the average

person in the general population can perform; or . . .

[s]ignificantly restricted as to the condition, manner

or duration under which an individual can perform

a particular major life activity as compared to the

condition, manner, or duration under which the

average person in the general population can

perform that same major life activity.

29 C.F.R. § 1630.2(j)(1) (2007); see also Contreras v. Suncast

Corp., 237 F.3d 756, 765 (7th Cir. 2001). The regulations

further provide that in determining whether someone

is substantially limited in a major life activity, one

should consider the following factors: “(i) [t]he

nature and severity of the impairment; (ii) [t]he duration

or expected duration of the impairment; and (iii)

[t]he permanent or long term impact, or the ex-

pected permanent or long term impact of or resulting

from the impairment.” 29 C.F.R. § 1630.2(j)(2) (2007).

Steffen contends that the USPS regarded him as sub-

stantially limited in a major life activity because, in a

single line from the deposition of the USPS representa-

tive that signed the Settlement Agreement, the USPS

5

(...continued)

his three-year absence, indicating that he could perform

other jobs for the USPS.

No. 11-2664 17

representative stated that she believed that Steffen

was receiving an accommodations for a disability. The

following is an excerpt of Emma Hughes’ deposition:

Q: What accommodations do you recall that he re-

ceived prior to going on AWOL?

A: I’m not sure what his duties involved, but he did

not do the full duties of his position prior to—of his

position. I’m not sure what his duties were, but they

were not full.

Q: At the time that you negotiated this agreement

then, Exhibit No. 11, did you believe that Mr. Steffen

was receiving accommodations for a disability that

he had acquired through an on-the-job injury?

A: No.

Q: Okay. Did you believe that he was receiving ac-

commodations for a disability that he had acquired

through an off-the-job injury?

A: Yes.

Steffen argues that Hughes admitted she believed that

Steffen “was receiving accommodations for a disability,”

so, he maintains, the USPS must have “regarded [him] as”

disabled. For further support, Steffen underscores that

Hughes discussed her understanding of when the

USPS was required to offer accommodations to disabled

employees, both illustrating her familiarity with the

ADA and indicating that she must have known what

“disability” meant under the ADA. When she affirma-

tively answered the final question quoted above, he

posits, she knew that disability meant “substantial limita-

18 No. 11-2664

tion on a major life activity.” Consequently, he argues,

her answer must be read as “Yes. I believed that

Steffen was receiving accommodations for a substantial

limitation on a major life activity. I believed that he

was disabled.”

Setting aside the fact that Hughes’ understanding of

the ADA’s accommodations requirements was incorrect,

there are several reasons why this single line in her dep-

osition is insufficient to prove that the USPS regarded

Steffen as being substantially limited in a major life

activity. First, many impairments that are con-

sidered “disabilities” under the term’s colloquial meaning

are not “disabilities” for the purposes of the ADA and

the Rehab Act, see, e.g., Desmond v. Mukasey, 530 F.3d

944, 952 (D.C. Cir. 2008), and nothing about the context

of Hughes’ deposition suggests that either she or her

questioner was referring to the strict definition of “disa-

bility” found in the ADA.

Moreover, the question eliciting Hughes’ allegedly

damning answer centered on whether Steffen had

received accommodations in the past and whether

those accommodations were the result of an on-the-job

or off-the-job injury. The fact that Steffen previously

received an accommodation–or that Hughes believed

he had—does not prove that she believed that he

suffered a substantial limitation in a major life activity.

See Kupstas, 398 F.3d at 614. The question did not

prompt her to contemplate whether Steffen’s impair-

ments rose to the level of a substantial limitation on a

major life activity, and Steffen’s suggestions that she

entertained this line of analysis strain credulity.

No. 11-2664 19

Finally, Hughes’ deposition affirmatively suggests

that she did not consider Steffen disabled under the

ADA, or, at the very least, that she did not know either

way. She stated, for example, that she did not know the

extent of his injuries; that she believed his union repre-

sentative had told her that he would be able to return

to full duty; that she did not believe that it would be

impossible to return to work; and that she did not know

the seriousness of his injuries. Her testimony does not

indicate that the USPS mistakenly believed that Steffen

suffered from an impairment he did not have, nor does

it suggest that the USPS mistakenly believed that the

impairments he did have were more limiting than

his doctors had expressed. See Sutton, 527 U.S. at 489.

In short, Hughes’ deposition does not prove that the

USPS regarded Steffen as disabled.

Steffen fails to prove that he falls within the ambit of

the ADA and Rehab Acts. He did not provide evidence

by which a reasonable jury could conclude that the

USPS regarded him as substantially limited in a major

activity. Thus, Steffen’s claim must fail.

C. Per Se Violation

Notwithstanding Steffen’s inability to prove he was

covered by the ADA or the Rehab Act, he claims that the

Settlement Agreement included a “100% healed” require-

ment, which was a per se violation of the ADA and the

Rehab Act. Steffen argues that the ADA requires em-

ployers to individually assess potential or current em-

ployees to determine whether they are qualified for a

20 No. 11-2664

particular job, with or without an accommodation

despite their disability. See Weigel v. Target Stores, 122

F.3d 461, 466 (7th Cir. 1997) (“[T]he ADA’s ‘qualified

individual’ inquiry . . . necessarily involves an individ-

ualized assessment of the individual and the relevant

position . . . .”). Since a “100% healed” policy pre-

vents individual assessment, it necessarily operates

to exclude disabled people that are qualified to work,

which constitutes a per se violation. See, e.g., Powers v. USF

Holland, Inc., 667 F.3d 815, 819 (7th Cir. 2011) (“[A]ll

courts ‘agree that a 100% rule is impermissible as to a

disabled person . . . .’” (quoting Henderson v. Ardco, Inc.,

247 F.3d 645, 653 (6th Cir. 2001)) (emphasis in original)).

Whether or not Steffen presented enough evidence

to show that the USPS may have a “100% healed”

policy regarding disabled workers, his argument has a

separate, fatal flaw. In order to have standing to sue

an employer for a per se violation of the ADA or Rehab

Act, one still has to meet the definition of “disabled

person” under those statutes. See id. (“[A]ll courts agree

that a 100% rule is impermissible as to a disabled per-

son–but one must first be disabled.”) (internal quotation

marks and citation omitted) (emphasis in original);

Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 688 (7th

Cir. 1998) (noting that the parties did not dispute that

the plaintiff-employees were either disabled or regarded

as disabled before addressing whether a “physical fit-

ness” test was a per se violation of the ADA); Hutchinson

v. United Parcel Serv., Inc., 883 F. Supp. 379, 397-98 (N.D.

Iowa 1995) (holding that a 100% healed requirement is

a per se violation of the ADA, but that plaintiff “[did] not

No. 11-2664 21

have standing, because she [was] not a person with a

disability within the meaning of the ADA”). Steffen

waived any argument that he was actually disabled

under the ADA, does not put forth any argument that

he had a record of being disabled, and failed to

establish that he was regarded as being disabled. Thus,

he lacks standing to bring a per se violation claim

against the USPS.

Although Steffen does not make this argument, it is

worth noting that at least two circuits have suggested

that proof of an employer’s “100% healed” policy can

supply circumstantial evidence that the employer

actually regarded an employee as substantially limited

in the major life activity of work. In particular, a “100%

healed” policy may show that the employer did not

allow the employee to return to work because of the

employee’s impairment. See Jones v. UPS, Inc., 502 F.3d

1176, 1188-89 (10th Cir. 2007); Henderson, 247 F.3d at 653.

We declined to follow the Sixth and Tenth Circuits

in Powers v. USF Holland, Incorporated, where we rea-

soned that an employer is free to be risk averse and

require that its employees are 100% healthy as long as

those employees are not covered by the ADA. 667 F.3d

at 823-24. Our view comports with the Supreme Court’s

pre-Amendments conclusion that “an employer is free

to decide that physical characteristics or medical condi-

tions that do not rise to the level of an impairment–such

as one’s height, build, or singing voice–are preferable

to others, just as it is free to decide that some limiting,

but not substantially limiting, impairments make indi-

viduals less than ideally suited for a job.” Sutton, 527

22 No. 11-2664

U.S. at 490-91. Therefore, Steffen does not have standing

to bring a claim against the USPS for a per se violation

of the ADA.

III. Conclusion

For the foregoing reasons, we A FFIRM the district

court’s grant of summary judgment for the defendants.

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