Petition for Writ of Certiorari — Delgado v. Certified Certified Grocers Grocers Midwest, Inc. (No. 08-360)

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os ' Supreme Court, U.S.

} FILED

Noe, No. 08- AY, 1.8 2008

In THE OFFICE OF THE CLERK

Supreme Court of the fihites Sites

RICARDO DELGADO,

Petitioner,

CERTIFIED GROCERS MIDWEST,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED StaTES Court oF APPEALS

FOR THE SEVENTH CIRCUIT

sien

PETITION FOR A WRIT OF CERTIORARI

RONALD J. BROIDA

Counsel of Record

: JOSEPH K. NICHELE

BROIDA AND ASSOCIATES, LTD.

1250 East Diehl Road

Suite 108

Naperville, Illinois 60563

(630) 245-1515

Attorneys for Petitioner

218256 ce

COUNSEL PRESS

(800) 274-3321 * (800) 359-6859

QUESTIONS PRESENTED FOR REVIEW

{. In holding that Ricardo Delgado was not disabled,

or regarded as disabled, in the major life activity of

working, did the United States Court of Appeals for the

Seventh Circuit, as well as other Circuit Courts of

Appeals, misinterpret the Americans With Disabilities

Act?

II. In finding that Ricardo Delgado was not

disabled, or regarded as disabled, in the major life

activity of working, did the United States Court of

Appeals for the Seventh Circuit err in failing to follow

precedent from this Court and case law from other

jurisdictions, and by finding that there were no genuine

issues of material fact pending a trial by jury?

TABLE OF CONTENTS

Questions Presented for Review ..............

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Table of Cited Authorities ...................

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Reasons for Granting the Petition ............

A. The ADA and the Court’s Jurisprudence

Regarding Title I of the ADA...........

B. This Court’s Guidance is Required. .....

C. The Delgado Decision is Contrary to This

Court’s Precedent and other Circuit

Decisions, and There are Genuine Issues

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TABLE OF APPENDICES

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Appendix A — Order Of The United States

Court Of Appeals For The Seventh Circuit

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Appendix B — Memorandum Opinion Of The

United States District Court For The

Northern District Of Illinois, Eastern Division

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TABLE OF CITED AUTHORITIES

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CASES:

Bailey v. Georgia-Pacific Corp.,

wae Fd TiGe (ist Cir, ZOUZ) .. ww. ec eecceee 15

Best v. Shell Oil Co.,

UOT Foe On (ite Ole 1997)... 6. oc cece ese. 20

Broussard v. University of California,

192 F.6d 1262 (9th Cir. 1909) .........ccc0e. 16

Cochrum v. Old Ben Coal Company,

102 F.3d 908 (7th Cir. 1996) ................ 21

Contreras v. Suncast Corp.,

237 F.3d 756 (7th Cir. 2001) ............ 17, 21, 22

Davoll v. Webb,

194 F:3d 1116 (10th Cir. 1999) .............. 11

DePaoli v. Abbott Lab.,

140 F'3d 668 (7th Cir. 1998) ................ 20

Duncan v. Washington Metropolitan Area

Transit Authority, —

240 F.3d 1110 (D.C. Cir. 2001) ............. 15, 16

EEOC v. R.J. Gallagher Co.,

181 F.3d 646 (Gth Cir, 1999) .............0.. 1]

Cited Authorities

Page

Everette v. Runyon,

911 F Supp. 180 (E.D.N.C. 1995) ........... 18

Mondzelewski v. Pathmark Stores, Inc.,

162 F3d 778 (3d Cir. 1998) ....... oO rewrr eT 20

Muller v. Costello,

re ee re te Ges ROSE) oon 5 cc ce cccecess 11

Mullins v. Crowell,

228 F:3d 1305 (11th Cir. 2000) .............. 11

Murphy v. United Parcel Services, Inc.,

S27 U.S. SIG GSee) ........... aoueases 13, 14

Ross v. Campbell Soup Co.,

Be See PPE OE GE IL) nn cc ec ceesnes 18

Rossbach v. City of Miami,

371 F.3d 1354 (lith Cir. 2004) ............. 14, 16

Sinkler v. Midwest Prop. Mgt. Ltd. Partn.,

pe eee 11

Sutton v. United Airlines,

2 Bs a 2 eee 12, 13, 14

Taylor v. Nimock’s Oil Co.,

SiG Fee OB COCR GA BOe) .. wwe ee ccc cece. 16

Cited Authorities

Page

Toyota Motor Mfg., Kentucky, Inc. v. Williams,

gee a er ee 13, 14, 22

Wellington v. Lyon County School Dist.,

187 F.3d 1160 (Oth Cir, 1999) ............06. 20

STATUTES AND REGULATIONS:

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Cited Authorities

Page

LAW REVIEWS AND PERIODICALS:

Jill C. Anderson, Just Semantics: The Lost

Readings of the Americans with Disability

Ma TET SAE Lids re koe se cence. 8

Ruther Colker, The Americans With Disabilities

Act: A Windfall for Defendants, 34 Harv.

CRAG Dike: FORV DOCS) ae ci cece cctenoen 15

Michael Waterstone. The Untold Story of the

Rest of the American’s with Disability Act,

GG Vand. 1s. REV TOOT (08) occ ccc ecccesse 14-15

OPINIONS BELOW

The decision of the United States Court of Appeals

for the Seventh Circuit affirming the United States

District Court for the Northern District of Illinois’ order

granting summary judgment, is an unpublished decision:

Delgado v. Certified Grocers Midwest, No. 07-314 (7th

Cir. June 23, 2008). It may be found in Appendix A. The

order and opinion of the District Court of the Northern

District of Illinois, Delgado v. Certified Grocers Midwest,

No. 06 C 2107 (N.D. Ill. August 16, 2007), may be found

in Appendix B.

STATEMENT OF JURISDICTION

On July 23, 2008, the United States Court of Appeals

for the Seventh Circuit affirmed the order of the United

States District Court for the Northern District of Illinois

granting summary judgment in favor of Certified

Grocers Midwest (“Certified”) against Ricardo Delgado

(“Delgado”), who did not file a Petition for Rehearing.

This case involves federal questions regarding the

Americans With Disabilities Act, and Delgado seeks to

appeal the Seventh Circuit’s order pursuant to 28 U.S.C.

§ 1254.

STATUTE INVOLVED

Applicable Provisions of Americans

with Disabilities Act of 1990

42 U.S.C. § 12102, titled “Definitions,” states:

As used in this chapter:

(1) Auxiliary aids and services

The term “auxiliary aids and services” includes—

(A) qualified interpreters or other -

effective methods of making aurally

delivered materials available to

individuals with hearing impairments;

(B) qualified readers, taped texts, or

other effective methods of making

visually delivered materials available to

individuals with visual impairments;

equipment or devices; and

(D) other similar services and actions.

(2) Disability

The term “disability” means, with respect to

an individual—

(A) a physical or mental impairment

that substantially limits one or more of

the major life activities of such individual;

(B) a record of such an impairment; or

impairment.

(3) State

The term “State” means each of the several

States, the District of Columbia, the

Commonwealth of Puerto Rico, Guam,

American Samoa, the Virgin Islands, the Trust

Territory of the Pacific Islands, and the

Commonwealth of the Northern Mariana

Islands.

STATEMENT OF THE CASE

Delgado is a forty-one year old male who has only a

6" grade education. (Delgado Dep. pg. 78; Delgado’s

deposition was attached to Certified’s Motion for

Summary Judgment). Delgado is currently unemployed,

although he is attending school in order to obtain his

GED and is continually searching for jobs. (Delgado

Dep. pg. 41-43). He currently lives with his wife and two

children, one of whom is a minor. (Delgado Dep. pg. 22).

Delgado was employed as a warehouse picker at

Certified from August 31, 2000 until April 15, 2005, at

which time his employment was terminated. (Delgado

Dep. pg. 45; Delgado Dep. pg. 248 and 249). Delgado

was fired after he was placed on permanent work

restrictions by his physicians as a result of injuries he

suffered while working at Certified. (Delgado Dep.

pg. 253-254).

Delgado began his employment at Certified in the

summer of 2000 as a temporary employee. (Delgado Dep.

pg. 45-46). On August 31, 2000, Delgado was hired as a

full time warehouse picker at Certified. (Delgado Dep.

pg. 45-46). Delgado’s duties as a warehouse picker

included filling customer orders by picking up at the

different locations in the warehouse all products a

customer had purchased from different locations in the

warehouse and preparing the customer’s order for

delivery. ( Delgado Dep. at pg. 48).

On November 1, 2001, Deigado injured his shoulder

at work and an ambulance was required to transport

him to the hospital. (Delgado Dep. pg. 67, 88). Because

of the injury he suffered at work, Delgado was told to

take a leave of absence, which he did from November

21, 2001 to December 18, 2001. (Delgado Dep. pg. 192-

193). Delgado’s injury also forced him to work “light

duty” from December 18, 2001 to February 12, 2002.

(Delgado Dep. pg. 192-193).

Delgado’s injury forced him to take another leave

of absence from February 13, 2002 to October 13, 2002.

(Delgado Dep. pg. 143). During that time, Delgado

continued to seek treatment from his physicians.

(Delgado Dep. pg. 143). Delgado returned to work on

October 14, 2002 after being released by Dr. Saeed to

full duty work with no restrictions. (Delgado Dep. pg.

199-201).

On June 11, 2003, Delgado re-injured his shoulder

while working at Certified. (Delgado Dep. pg. 212-213).

Even with that injury, Delgado attempted to continue

working, and remained on full duty without restrictions

until August 21, 2003. (Delgado Dep. pg. 215). On

August 21, 2003, Delgado’s physician, Dr. Hadesman,

placed him on light duty with restrictions. (Delgado Dep.

pg. 217-218). The restrictions included lifting no more

than 50 pounds from waist to floor, lifting no more than

25 pounds from waist to shoulder and lifting no more

than 10 pounds overhead. (Delgado Dep. pg. 217-218).

On January 26, 2004, after consulting with Dr.

Hadesman and Dr. Visotsky, his surgeon, Delgado had

surgery on his shoulder to treat the injuries he sustained

while working at Certified. (Delgado Dep. pg. 228-229).

Because of the surgery, Delgado was forced to take a

leave of absence from January 26, 2004 through May

18, 2004. (Delgado Dep. pg. 228-229). On May 18, 2004,

Delgado returned to work with restrictions, and was

placed on light duty work while he continued to

physically recover. (Delgado Dep. pg. 230).

Delgado continued to follow up with Dr. Visotsky,

who changed his lifting restrictions on June 11, 2004 to

no more than 100 pounds, but no overhead lifting.

(Delgado Dep. pg. 131). On October 8, 2004, Dr. Visotsky

determined that Delgado had achieved maximum

medical improvement. (Delgado Dep. pg. 232-234). As a

result of his physician’s determination, Delgado was

placed on permanent restrictions consisting of no

overhead lifting and no frontal plain lifting over 50

pounds. (Delgado Dep. pg. 232-234). In November, 2004,

Delgado noticed numbness, tingling and swelling in his

arms, and he sought treatment from Dr. Visotsky.

(Delgado Dep. pg. 242). Dr. Visotsky diagnosed Delgado

with Carpel Tunnel Syndrome, and he was placed on a

leave of absence. (Delgado Dep. pg. 243). From

November, 2004, through April, 2005, Delgado continued

to follow up with Dr. Visotsky, Dr. Hadesman, and Dr.

Spencer, all of whom recommended that Delgado be

permanently restricted to lifting limitations. (Delgado

Dep. pg 243-246).

Delgado tried to return to work in April of 2005.

(Delgado Dep. pg. 248). At this time, Delgado presented

to Certified a note from Dr. Spencer that his lifting

restrictions were permanent. (Delgado Dep. pg. 248).

Because of his permanent medical restrictions, Certified

sent Delgado home on April 15, 2005, effectively firing

him. (Delgado Dep. pg. 248). Under company policy, light

duty employees are terminated after Certified receives

notification from a physician that an employee has a

permanent medical restriction. (Traub Dep. pg. 248).

Delgado was instructed by Dominic Rosey, his union

steward, not to file a grievance but to hire a lawyer.

(Delgado Dep. pg. 254).

Since being fired, Delgado has applied for hundreds

of jobs and attended several job fairs. (Plaintiff’s

Statement of Material Facts, Ex. G). Because of

Delgado’s lack of education and medical restrictions, he

has had severe difficulties finding employment for

manual labor jobs, which are the only jobs for which he

is qualified. Delgado has been forced to conceal his

medical history, and Delgado’s vocational rehabilitation

advisor, Mr. Vocacio, told Delgado that he should not

mention his work restrictions when he applies for work.

(Delgado Dep. pg. 121-122). He has also been denied

employment, presumably because of his restrictions.

(Delgado Dep. pg. 87-88).

Delgado is currently unemployed as he cannot find

employment because of his physical limitations. (Delgado

Dep. pg. 42-43). Delgado cannot do household chores,

such as cooking, sweeping, vacuuming, making beds and

washing dishes by hand. (Delgado Dep. pg. 44). He is

also limited to playing only card games, checkers and

drawing with his children, as he cannot engage in sports

or other physical activities. (Delgado Dep. pg. 45)..

Delgado filed a charge of discrimination with the

Equal Employment Opportunity Commission (“EEOC”)

on December 29, 2005. Upon receiving a Right to Sue

Letter, Delgado filed this lawsuit in the United States

District Court for the Northern District of Illinois.

(Complaint, U.S. District Court Docketing No. 1).

Delgado alleged that he was terminated because of his

disability in violation of the Americans with Disabilities

Act. Because the case involved a federal statute, the

District Court had jurisdiction pursuant to 28 U.S.C.

§1331. On August 16, 2007, the District Court granted

Certified’s Motion for Summary Judgment.

Delgado timely filed a Notice of Appeal in the Court

of Appeals for the Seventh Circuit. (Notice of Appeal,

U.S. District Court Docketing No. 54). On June 17, 2008,

oral argument presented and on June 23, 2008, the

Seventh Circuit affirmed the District Court’s order. The

Seventh Circuit reasoned that Delgado had not

established that he is disabled in the life activity of

working, or that he was “regarded as” disabled in the

major life activity of working. Delgado did not file a

Petition for Rehearing.

REASONS FOR GRANTING THE PETITION

Only 18 years after its passage, the Americans With

Disabilities Act of 1990 (“ADA”), 42 U.S. §§ 12101-12213,

is on the verge of extinction. Disability advocates and

commentators alike agree that the ADA has lost much

of its force. Jill C. Anderson, Just Semantics: The Lost

Readings of the Americans with Disability Act, 117

YALE L.J. 992 (2008). Because of decisions of lower

courts, plaintiffs, such as Delgado, are often forced to

focus almost exclusively on whether or not they have an

“impairment” that “substantially limits a major life

activity.”

In this case, there is no issue that Delgado’s

shoulder injuries are physical impairments. Rather, the

primary issue is whether Delgado’s impairments

substantially limited him in a major life activity. This

boils down to the question of whether or not Delgado

was disabled. Since a plaintiff’s primary focus must

necessarily be on showing that he or she is disabled,

plaintiffs are deflected from focusing on the primary evil

intended to be remedied by the ADA: an employer’s

discrimination. Lower courts have also made it almost

impossible for individuals to establish that they fall

within the “regard as” prong of the ADA’s definition of

disability. A combination of these factors create a barrier

to judicial relief which is almost impossible for plaintiffs

to overcome. As a result, the ADA as the acclaimed

protector against employment discrimination has little

(if any) force or effect.

In its few “ADA decisions”, this Court has only had

to speak in generalities about the major life activity of

working. The lower courts have therefore been more or

less free to establish standards that make it almost

impossible for a plaintiff to prove he or she was disabled.

This Court’s guidance is required to effectuate the

intent of the ADA. Congress has already begun to act

to correct judicial misinterpretations of the ADA which

have narrowed the class of individuals who are

considered disabled. On June 25, 2008, the United States

House of Representatives overwhelmingly passed the

ADA Amendments Act (H.R. 3195).

Further, in affirming the order of the District Court

to grant Certified’s Motion for Summary Judgment, the

Seventh Circuit acted contrary to case law from other

circuits, and contrary to its own precedent, and most

importantly contrary to precedent from this Court.

There was sufficient evidence presented by Delgado to

establish genuine issues of material fact, and the

District Court’s and Seventh Circuit’s decisions should

be reversed.

For these reasons, Delgado requests the Court grant

his Petition for a Writ of Certiorari.

A. The ADAand the Court’s Jurisprudence Regarding

Title I of the ADA.

Title I of the ADA prohibits discrimination by

covered entities, including private employers, against

qualified individuals with a disability. Specifically, the

ADA states that no covered employer “shall discriminate

against a qualified individual with a disability because

of the disability of such individual in regard to job

application procedures, the hiring, advancement, or

discharge of employees, employee compensation, job

training, and other terms, conditions, and privileges of

employment.” 42 U.S.C. § 12112(a). A “qualified

individual with a disability” is identified 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).

The ADA defines a “disability” as:

(A) a physical or mental impairment that

substantially limits one or more of the major

life activities of such individual;

(B) arecord of such an impairment; or

impairment. 42 U.S.C. § 12102(2).

Although this Court has not yet “officially”

recognized working as a major life activity (it has

accepted without deciding that working is major life

activity), every court of appeals that has considered the

issue has done so. Mullins v. Crowell, 228 F.3d 1305,

1313 (11th Cir. 2000); Sinkler v. Midwest Prop. Mgt. Ltd.

Partn., 209 F.3d 678, 684 n. 1 (7th Cir. 2000); EEOC v.

R.J. Gallagher Co., 181 F.3d 645, 654-55 (5th Cir. 1999);

Davoll v. Webb, 194 F.3d 1116, 1134 (10th Cir. 1999);

Muller v. Costello, 187 F.3d 298, 312 (2d Cir. 1999).

The EEOC has also determined that working is a

“major life activity.” 29 CFR § 1630.2(i). The EEOC has

defined being impaired in one’s ability to work as being

“significantly restricted in the ability to perform either

a class of job or a broad range of jobs in various classes

as compared to the average person having comparable

training, skills, and abilities.” According to the EEOC,

to establish a “class” or “broad range” of jobs, the

following factors should be considered: the geographical

area to which the individual has reasonable access, and

the number and types of jobs utilizing similar training,

knowledge, skills, or abilities, within the geographical

area from which the individual is also disqualified.

29 C.ER. § 1630.2(j)(3)(ii).

The “Interpretive Guidance” accompanying

29 C.ER. § 1630.2 offers examples of impairments that

the EEOC believes fit statutory requirements. These

examples include an individual who has a back condition

that prevents the individual from performing any heavy

labor job as being substantially limited in the major life

activity of working. This would be so even if the

individual were able to perform jobs in another class.

Delgado’s lifting restrictions follow the same pattern as

this example.

It is within this framevvork that the Court decided

Sutton v. United Airlines, 527 U.S. 471 (1999). In Sutton,

the plaintiffs, severely myopic twin sisters, contended that

United Airlines mistakenly believed that their physical

impairment, their visual acuity, substantially limited them

in the major life activity of working. /d. at 475-476.

The Court did not need to decide whether the term

“major life activity” includes working because both

parties accepted that working was included in the term

“major life activities.” Jd. at 492. The Court held when

the major life activity under consideration is that of

working, the statutory phrase “substantially limits”

requires, at-a minimum, that the plaintiffs allege they

are unable to work in a broad class of jobs. Jd. at 492-

493. The Court quoted the EEOC’s standard for what

“substantially limits” means when applied to the major

life activity of working: “significantly restricted in the

ability to perform either a class of job or a broad range

of jobs in various classes as compared to the average

person having comparable training, skills, and abilities.”

Id. at 491

According to the Court, if jobs utilizing an

individual’s skills are available, one is not precluded from

a substantial class of jobs. 7d. at 492. The Court also

held that because the plaintiffs only alleged that the

defendant “regarded” their poor vision as precluding

them from holding the position as a “global airline pilot,”

the plaintiffs failed to adequately allege that their

poor eyesight is “regarded as” an impairment that

substantially limits them in the major activity of working.

Id. at 493.

In Murphy v. United Parcel Services, Inc., 527 U.S.

516 (1999), the Court ruled that the plaintiff failed to

demonstrate that there is a genuine issue of material

fact as to whether he is regarded as disabled. Jd. at 524.

According to the Court, the plaintiff was fired from his

position as a UPS mechanic because he had a physical

impairment, hypertension, that was viewed as

preventing him from obtaining health certification.

Id. at 519-520. The Court held that at most the plaintiff

only showed that he was regarded as unable to perform

the job of a mechanic. /d. at 524. According to the Court,

because plaintiff failed to show that he was regarded as

unable to perform a class of jobs, he was, as a matter of

law, unable to prove that he was regarded as

substantially limited in the major life activity of working.

Td.

In Toyota Motor Mfg., Kentucky, Inc. v. Williams,

534 U.S. 184 (2002), the Court held that the “class of

jobs analysis” articulated in Sutton should not apply

outside the context of the major life activity of working.

Id. at 200. Specifically, the Court held that when

addressing the major life activity of performing manual

tasks, the central inquiry must be whether a plaintiff is

unable to perform a variety of tasks central to people’s

daily lives, not whether a plaintiff is unable to perform

the tasks associated with her specific job. Jd.

B. This Court’s Guidance is Required.

The lower courts have made it exceedingly difficult

for individuals to establish that they are substantially

limited in the major life activity of working. There is

now an almost impossible standard of proof for disabled

individuals, like Delgado, who have suffered adverse

employment actions but cannot establish that they are

substantially limited in any major life activity other than

working. Although Delgado can perform most “life

activities,” because his physical impairments, limited

education and experience, he cannot work.

Actually, the Court has yet to really rule on whether

proof that one cannot perform the essential functions

of a job (or is perceived by an employer as being unable

to do so) is sufficient to establish a substantial limitation

in working. In Sutton, Murphy, and Williams, the

Court assumed the regulations interpreting the term

“substantially limits” were reasonable and applied the

EEOC’s “broad range of jobs” standard under

§ 12102(2)(a) and (c) of the ADA’s definition of disability.

As some circuit courts of appeals have recognized, the

Court has only spoken in “generalities” about these

issues, and there is no “final word.” Rossbach v. City of

Miami, 371 F.3d 1354, 1360 (11th Cir. 2004).

Without the Court’s specific pronouncement, lower

courts have improperly required plaintiffs to meet a

heavy, and in realty impossible, burden to demonstrate

that their physical and mental impairments substantially

limit their ability to work. ADA plaintiffs lose Title I

cases the vast majority of the time. Michael Waterstone.

The Untold Story of the Rest of the American’s with

Disability Act, 58 Vanp. L. Rev 1807, 1812-1813

(2005)(citing statistics that defendants prevail 94% of

the time in Title I cases). One commentator notes that

only plaintiffs in prisoner civil rights cases fare worse

than ADA plaintiffs. Ruther Colker, The Americans With

Disabilities Act: A Windfall for Defendants, 34 Harv.

C.R.-C.L.L. Rev. 99, 100 (1999).

ADA plaintiffs face many obstacles. Most lower

courts have ruled against plaintiffs claiming a

substantial limitation in working, finding that the

individuals were not sufficiently restricted from

performing a broad range of jobs. In making these

rulings, the courts of appeals seem to recognize that

the burden placed on plaintiffs is “weighty” and

constitutes an “ambitious” task. Bailey v. Georgia-

Pacific Corp., 306 F.3d 1162, 1168 (1st Cir. 2002). Why

should that be? Why shouldn’t the proper intent of the

ADA be recognized?

Another example: in Duncan v. Washington

Metropolitan Area Transit Authority, 240 F.3d 1110

(D.C. Cir. 2001), the Court of Appeals for the District of

Columbia Circuit held that in order to prove substantial

limitation in working, plaintiffs must produce some

evidence of the number and types jobs in their local job

market. Jd. at 1115-1116. The plaintiff presented

evidence to confirm a substantial limitation through

expert medical testimony that the plaintiff’s back

condition and lifting restriction were permanent. Jd. The

plaintiff also presented evidence of his age, limited skills,

limited education and limited experience and of his

inability to find comparable employment after his

discharge. /d. at 1115. In holding that the plaintiff was

not disabled, the Duncan court found that the evidence

tells nothing “about the number and types of jobs in

the Washington, D.C. area for which Duncan is qualified

and which are therefore available to him.” /d.

In Rossbach v. City of Miami, 371 F.3d 1354 (11th

Cir. 2004), the Court of Appeals for the Eleventh Circuit

ruled that five police officers who sustained various

injuries while performing their jobs were not

substantially limited in working. The Rossbach court

ruled that the job of a police officer is “too narrow” a

range of jobs to constitute a “class of jobs.” Jd. at 1361.

Thus, according to the Rossbach court, the plaintiff and

his fellow officers failed to show that each was disabled

under the ADA. /d. at 1361-1362. One might wonder

about the common sense of that analysis.

In Taylor v. Nimock’s Oil Co., 214 F.3d 957 (8th

Cir.2000), the Court of Appeals for the Eight Circuit

concluded a former cashier with a 40 hour week and 10

pound carry limit did not establish disability because

she “presented no evidence to create a genuine issue of

material fact about whether she could perform a class

of jobs with her restrictions.” /d. at 961-962.

In Broussard v. University of California, 192 F.3d

1252 (9th Cir. 1999), the Court of Appeals for the Ninth

Circuit found no genuine issue of material fact

and dismissed a vocational expert’s findings as

“conclusory” because the expert failed to take the

plaintiff’s vocational abilities in to account and had not

compared the jobs she could do before or after her

impairment. /d. at 1257-1258.

In Contreras v. Suncast Corp., 237 F.3d 756 (7th Cir.

2001),the Court of Appeals of the Seventh Circuit

rejected the argument that because the plaintiff could

not lift more than 45 pounds, was unable to engage in

strenuous work and was unable to drive a forklift, he

was restricted in his ability to work. /d. at 763. The

Contreras court believed that the plaintiff presented “no

evidence” of disability. Jd.

Several stern trends are evident from the lower

court decisions. Medical and vocational expert testimony

is almost always necessary to demonstrate a significant

restriction 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, whoever that might be.

Also, the standards imposed by lower courts do not

take into account that the ability to perform comparable

jobs may depend upon the extent to which other

employers have the same or similar conditions, practices

and restrictions as does the defendant employer, and

upon the other employers’ willingness (or unwillingness)

to make necessary accommodations to a plaintiff’s

condition. This kind of evidence is obviously difficult and

often impossible for a plaintiff to obtain.

Further, even if plaintiffs can marshal significant

demographic data and other evidence establishing that

they are unable to work in a “class of jobs” or a “broad

range of jobs” (which most often they cannot), they

must also establish that, at least with a reasonable

accommodation, they are still “qualified” to perform the

job in question. Aren’t the two requirements in conflict?

One district court has perceptively suggested that

proving that one is substantially limited in working and

simultaneously was qualified for the particular job is

impossible. Everette v. Runyon, 911 F. Supp. 180, 183-

184 (E.D.N.C. 1995).

Under the “regarded as” prong (§ 12102(2)(c), which

was intended to be a “catchall,” some courts of appeals

have correctly recognized that these cases are

extraordinarily difficult because the question is almost

entirely in the employer’s state of mind. Ross v.

Campbell Soup Co., 237 F.3d 701, 709 (6th Cir. 2001).

Even the Delgado court said plaintiffs must show that

not only that his or her employer regarded him or her

disabled, but also that the employer regarded the

plaintiff as precluded from a broad class of jobs.

(Appendix A, pg. 10a). This leaves plaintiffs, such as

Delgado, at a insurmountable disadvantage. Employers

do not regularly consider other jobs for their employees

to perform, and rarely can direct evidence of such

considerations be found. Employers can simply argue

that they had no opinion as to whether the plaintiff could

perform a variety of jobs, and what can a plaintiff do

about that? If an employer fires an employee because

of a disability, how can it deny that it regarded him or

her as being disabled? Requiring a plaintiff to prove that

the employer regarded him as disabled as to a “broad

class of job” essentially forecloses any recovery under

§ 12102(2)(c). -

This case is a prime example of all of these

difficulties, and shows the need for this Court’s direction

in order to give proper effect to the intent of the ADA.

Delgado has little education (6th Grade), and his work

experience has been limited to manual labor type jobs.

The only work Delgado knows how to do involves manual

labor and heavy lifting, which he can no longer do

because of his physical impairment. Because of the lower

court’s and the Seventh Circuit’s decisions, -Delgado

faces an almost insurmountable task in proving that he

was “disabled”, let alone discriminated against (a stated

purpose of the ADA).

Such harsh burdens of proof prevent disabled

plaintiffs, such as Delgado, from having their “day in

court,” and excessively discourage the filing ADA

lawsuits. To prevent such a result, which is clearly

against the intent of the ADA, this Court should

establish more reasonable and realistic burdens of proof

and restore balance to the use and application of the

ADA.

By reason of the above and forgoing, the Court

should grant Delgado’s Petition for Writ of Certiorari.

C. The Delgado Decision is Contrary to This Court’s

Precedent and other Circuit Decisions, and There

are Genuine Issues of Material Fact.

There have been some cases in which plaintiffs have

prevailed on their claims of substantial limitations in

working. These usually involve employees who have

worked for a long time in one job, have limited education

or skills, or live in an area where employment

opportunities are limited. The evidence is clear that

Delgado has limited education and skills which should

have precluded summary judgment from being entered

against him.

In Mondzelewski v. Pathmark Stores, Inc., 162 F:3d

778 (3d Cir. 1998), the Court of Appeals for the Third

Circuit ruled a supermarket employee, who had a sixth-

grade education (same as Delgado) and had worked as

a meat cutter for 35 years, could proceed with an ADA

claim that a back injury substantially limited his ability

to work.

In Wellington v. Lyon County School Dist., 187 F.3d

1150 (9th Cir. 1999), the Court of Appeals for the Ninth

Circuit held that despite presenting no expert

testimony or “other evidence”in considering the

plaintiff’s “training, skills and abilities,” there existed a

question of fact as to whether he is “significantly

restricted in the ability to perform work in a class of

jobs,” specifically, construction, maintenance and

plumbing, and whether he is “disabled” within the

meaning of the ADA. /d. at 1154. The plaintiff had a

high school education, and his work experience included

only construction, maintenance and plumbing jobs. /d.

Further, the Court of Appeals for the Seventh Circuit

ignored its own DePaoli v. Abbott Lab., 140 F.3d 668 (7th

Cir. 1998)(determining that the plaintiff had presented

sufficient evidence through her physicians that she was

precluded from a “class”of jobs, assembly line work in

the Chicago economy because she could not perform

repetitive motions with her hand); Best v. Shell Oil Co.,

107 F.3d 544, 548 (7th Cir. 1997)(holding that a

reasonable trier of fact could have determined that the

plaintiff’s knee condition substantially limited his ability

to work as a truck driver, despite no evidence showing

how many truck driving jobs require the ability to

operate a truck with a clutch or how often the particular

configuration of the seat and clutch oceurs); and

Cochrum v. Old Ben Coal Company, 102 F.3d 908, 911

(7th Cir. 1996)(holding that a reasonable trier of fact

could have concluded that a shoulder injury that

interfered with heavy lifting, pulling or pushing was a

disability disqualifying plaintiff from broad class of

“heavy labor” jobs).

Because of his work restrictions, Delgado is

obviously precluded from any heavy or manual labor job.

Delgado is limited to this type of employment because

of his age, his limited education and the fact that he had

been engaged in physizal labor for his entire working

career. Delgado has a 6th grade education, and his

employment experience is limited to jobs that are similar

in skill level to the position he held at Certified.

Delgado’s physical impairments restrict him from a

broad class of jobs involving heavy labor; Delgado

cannot perform a “class” of jobs in the Chicago economy

as a result of his disability.

A jury could reasonably conclude, based on the

evidence and their own collective experience, that

Delgado could not preform a broad class of jobs. It is

not or should not be necessary for a vocational expert

prepare a report or testify for the purpose of

establishing that a class of jobs require the ability to lift

25 pounds, and this Court has never established a per

se rule requiring such testimony.

The Delgado court also relied (almost as a matter of

law) on Contreras v. Suncast Corp. in affirming the

District Court’s decision. The Delgado court stated that

Contreras “held that a forklift operator who was unable

~ 22

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.” (Appendix A, pg. 8a). By relying on Contreras to

find that Delgado’s restrictions were not as broad as the

plaintiff’s restrictions in Contreras, is it not clear that the

Delgado court did not conduct the individualized inquiry

required by this Court? This Court has repeatedly stated

that an individualized assessment of an impairment is

necessary when determining whether an individual is

disabled. Toyota Motor Mfg., Kentucky, Inc., 534 U.S. at

199. Such an individualized assessment was not performed

by the District Court nor the Seventh Circuit.

A jury could reasonably conclude, based on the

evidence and their own collective experience, that Delgado

could not preform a broad class of jobs. By considering

the job advertisements presented by Delgado and by using

common knowledge about these types of jobs, a jury could

reasonably believe Deigado to be excluded from these jobs,

and in turn, the major life activity of working. The evidence

is there and a jury could conclude that Delgado would be

excluded from a class of jobs due to his lack of qualifications

and low lifting restrictions.

Delgado presented more than “mere proof” that his

impairments prevented him from performing a particular

job for Certified. There is evidence that because of his

injuries and restrictions, Delgado is excluded from an

entire “class” of jobs giving rise to a genuine issue of

material fact as to whether his impairment “substantially

limits” a major life activity.

The Delgado court’s decision was contrary to

existing precedent, and against the manifest weight of

the evidence. There are genuine issues of material fact

that require resolution by a jury and this Court should

grant his Petition for a Writ of Certiorari.

CONCLUSION

Based on the above and foregoing, this Court should

grant Delgado’s Petition for a Writ of Certiorari, and.

allow Delgado to appeal the decision of the United States

Court of Appeals for the Seventh Circuit.

Respectfully submitted,

RONALD J. BROIDA

Counsel of Record

JOSEPH K. NICHELE

BROIDA AND ASSOCIATES, LTD.

1250 East Diehl Road

Suite 108

Naperville, Illinois 60563

(630) 245-1515

Attorneys for Petitioner

APPENDIX

APPENDIX A — ORDER OF THE UNITED STATES

COURT OF APPEALS FOR THE SEVENTH CIRCUIT

DECIDED JUNE 23, 2008

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,

CERTIFIED GROCERS MIDWEST, INC.,

Defendant-Appellee.

ORDER

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

Appendix A

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.

Delgado, who is 4! 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

Appendix A

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

Appendix A

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 with 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

Appendix A

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

“pare 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

Appendix A

must show that there is a genuine issue of material fact

regarding whether he is a “qualified 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.8d 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

Appendix A

“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)()). The injury must limit employment

generally, not merely preclude an employee from a

particular job or a narrow range of jobs. Jd. 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.” Jd. 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

Appendix A

jobs might be available to him, are sufficient to show

that he is precluded from performing any manual labor

jobs. In DePaoli, 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

Appendix A

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. Jd. 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

10a

Appendix A

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.

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. /d. at 614-15; Toyota

Motor Mfg., Ky., Inc. v. Williams, 5384 U.S. 184, 200,

122 S.Ct. 681, 151 L.Ed.2d 615 (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’ ”

lla

Appendix A

of the job that he has or desires. Sears, Roebuck & Co.,

417 F3d 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.’ ” Jd. 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 F3d 806, 8138 (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

12a

Appendix A

employees to remain on light duty as long as they were

reasonably expected to fully recuperate. The record also

shows that no 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).' 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.

i. 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.

13a

APPENDIX B — MEMORANDUM OPINION OF

THE UNITED STATES DISTRICT COURT FOR

THE NORTHERN DISTRICT OF ILLINOIS,

EASTERN DIVISION AUGUST 16, 2007

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

06 C 2107

RICARDO DELGADO,

Plaintiff,

VS.

CERTIFIED GROCERS MIDWEST,

Defendant.

MEMORANDUM OPINION

CHARLES P KOCORAS, District Judge.

This matter comes before the Court on Defendant

Certified Grocers Midwest’s (“Certified Grocers”)

motion for summary judgment. For the following

reasons, Summary judgment is granted in favor of

Certified Grocers.

14a

Appendix B

BACKGROUND

In assembling the recitation of material facts

relevant to our decision, we have disregarded any alleged

facts or purported denials that are unsupported by the

record or do not comply with Local Rule 56.1. See Brasic

v. Heinemann’s Inc., 121 F.3d 281, 284 (7th Cir.1997).

Plaintiff Ricardo Delgado was hired by Certified

Grocers in the summer of 2000 as a temporary employee.

By August, Certified Grocers had offered him a regular

full-time position as a Warehouse Picker in the

Perishables Department, a union position that was

governed by a collective bargaining contract. In this

position, Delgado was responsible for filling orders in

the dairy, freezer, produce, and meat sections of the

department, all of which are refrigerated and/or cold.

In order to fill orders, Delgado had to lift items weighing

between 1 and 100 pounds, from bins anywhere from 5

inches to 6 feet off the floor, and then place those items

on a pallet and shrink-wrap the pallet.

Delgado first injured his shoulder at work on

November 1, 2001. Certified provided Delgado with an

eight-week leave of absence and two months of light

duty upon his return. Delgado was told by his union

stewards that the collective bargaining agreement

provided for only two months of light duty, after which

an employee would be sent home until he received a full

release. Certified provided Delgado with another leave

of absence from February 13 to October 13, 2002, during

which Delgado received benefits, health insurance, and

15a

Appendix B

temporary total disability benefits. Delgado returned

to work on full duty with no restrictions on October 14,

2002.

On June 11, 2003, Delgado re-injured his shoulder

but remained on full duty without restrictions until

August 21, 2003, when his doctor placed him on light

duty with certain lifting restrictions. Certified provided

light duty work for Delgado within his restrictions

through October 20, 2003, amounting to more than eight

weeks of light duty.

Delgado had surgery on his shoulder on January

26, 2004, following which Certified provided him with a

leave of absence until May 18, 2004, along with benefits,

health insurance, and temporary total disability benefits.

On May 18, 2004, Delgado returned to work with

restrictions, and Certified Grocers provided him with

light duty consistent with those restrictions. Ultimately,

on October 8, 2004, Delgado’s doctor determined he had

reached “maximum medical improvement” and placed

him on permanent restrictions consisting of no overhead

lifting and no frontal plane lifting over 50 pounds.

Certified provided him with light duty consistent with

his restrictions through November 17, 2004. In

November, Delgado noticed numbness, tingling, and

swelling in his arm. His doctor diagnosed him with carpal

tunnel syndrome unrelated to his shoulder injury and

placed him on a leave of absence. Delgado saw several

other doctors in February and April 2605, who advised

him not to lift more than 50 pounds, lift overhead, carry

more than 25 pounds, or work in refrigerated

environments. These restrictions have never been lifted.

l6a

Appendix B

Delgado attempted to return to work in April 2005,

but because of his permanent medical restrictions,

Certified Grocers determined that Delgado was not

eligible to continue working in his bargaining unit job

and sent him home on April 15, 2005. Once Certified

Grocers determined that Delgado couid no longer

perform the job of Warehouse Picker, they provided him

with vocational rehabilitation. Plaintiff never requested

an accommodation, filed a grievance, or applied for any

other openings at Certified Grocers.

Since his termination, Delgado has applied for jobs

and attended job fairs. He has been offered several jobs

but has not accepted those offers. From March 30 to

May 19, 2006, Delgado worked for Adecco as a mover.

He quit this job because he claims that Adecco required

him to do work outside of his lifting restrictions and did

not pay him in a timely fashion. Delgado filed a charge

with the Illinois Department of Labor and was ultimately

able to recover his back pay. Delgado claims that it is

very difficult for him to find jobs on account. of his 6th

grade education; his job experience, which is limited to

jobs requiring lifting; and his medical restrictions.

However, he has been offered several jobs and has not

accepted those jobs. All were either within his work

restrictions or he did not inquire as to what the lifting

and carrying requirements of the job would be.

Delgado is currently unemployed, attending school

in order to obtain his GED, and searching for jobs. He

lives with his wife and two children, one of whom is a

minor. He cares for his minor child, getting him ready

17a

Appendix B

for school, preparing lunch, overseeing his activities and

attending his basketball games and other events. He

can take care of himself and walks to keep in shape. In

addition, he does household chores such as cleaning the

table, loading the dishwasher, driving his children places,

and playing with his children. Occasionally, he does the

grocery shopping. He carries a backpack filled with

schoolbooks to school but does not know if the bag

weighs more than 25 pounds. His injury prevents him

from doing maintenance work on the rental properties

that he owns.’

1. In his deposition, Delgado testified that he does not

know how to cook and does not own a vacuum cleaner. He

testified that he does not sweep, make beds, or wash dishes but

did not attribute these choices to his injury. When asked if there

was anything he was unable to do now, either professionally or

personally, that he had been able to do prior to his injury, he

answered, “I don’t know .” In his post-deposition affidavit,

Delgado claims that he does not do mary household chores

including vacuuming, sweeping, doing laundry, making beds,

and grocery shopping because such activities require lifting

and reaching that aggravates his shoulder injury and causes

him pain. A party cannot create an issue of fact in order to avoid

summary judgment by contradicting his own prior testimony.

Darnell v. Target Stores, Inc., 16 F.3d 174, 177 (7th Cir.1994).

Delgado’s affidavit directly contradicts his deposition testimony

and accordingly, we cannot credit these portions of his affidavit.

Delgado does not supply any explanation for the difference

between his deposition and his affidavit, and there is no

indication from his deposition testimony that he was confused

as to the questions he was being asked in the deposition and

therefore did not clearly explain himself. Piscione vu Ernst &

Young, L.L.P, 171 F.3d 527, 532-33 (7th Cir.1999).

18a

Appendix B

Delgado filed a charge of discrimination with the

Equal Employment Opportunity Commission (“EEOC”)

on December 29, 2005”, and upon receiving his right to

sue letter, brought this suit, alleging that he was

terminated on account of his disability in violation of the

Americans with Disabilities Act of 1990, 42 U.S.C.

§ 12101 et seq. (“ADA”). At the close of discovery,

Certified Grocers filed the instant summary judgment

motion.

LEGAL STANDARD

Summary judgment is appropriate only when “the

pleadings, depositions, answers to interrogatories,

admissions on file, together with the affidavits, if any,

show that there is no genuine issue as to any material

fact and that the moving party is entitled to a judgment

as a matter of law.” Fed.R.Civ.P 56(c). The moving party

bears the burden of demonstrating the absence of a

genuine issue of material fact by specific citation to the

record, at which time the burden shifts to the non-

moving party to set forth specific facts showing that

there is a genuine issue of fact for trial. Fed.R.Civ.P.

56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct.

2. Certified Grocers filed a motion to dismiss based upon

the alleged untimeliness of Delgado’s EEOC charge, which we

denied, holding that under the circumstances, an analysis of

whether or not the EEOC charge was timely filed could not be

adjudicated in a Fed.R.Civ.P. 12(b)(6) motion. Certified Grocers

has not continued to protest the timeliness of the EEOC charge,

so we presume that the charge was timely filed on December

29, 2005, as Delgado alleges.

19a

Appendix B

2548, 91 L.Ed.2d 265 (1986). A “genuine issue” in the

context of a motion for summary judgment is not simply a

“metaphysical doubt as to the material facts,” Matsushita

Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,

586, 106 S.Ct. 1848, 89 L.Ed.2d 538 (1986); rather, “(a]

genuine issue exists when the evidence is such that a

reasonable jury could find for the non-movant.” Buscaglia

v. United States, 25 F.3d 530, 534 (7th Cir.1994). At

summary judgment, we construe all facts and draw all

inferences from the record in favor of the non-moving party.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106

S.Ct. 2505, 91 L.Ed.2d 202 (1986).

DISCUSSION

Delgado complains that Certified Grocers terminated

him rather than accommodate his disability in violation of

the ADA. The ADA prohibits employment discrimination

against a qualified individual with a disability because of

the disability of that individuai. 42 U.S.C. § 12112(a).

Discrimination includes “nct making reasonable

accommodations to the known physical or mental

limitations of an otherwise qualified individual with a

disability who is an applicant or employee” unless the

employer “can demonstrate that the accommodation would

impose an undue hardship on the operation of the

business.” 42 U.S.C. § 12112(b)(5)(A). In addition,

discrimination includes “denying employment

opportunities to an . . . employee who is an otherwise

qualified individual with a disability, if such denial is based

on the need of such covered entity to make reasonable

accommodation to the physical or mental impairments of

the employee or applicant.” 42 U.S.C. § 12122(b) (5)(B).

20a

Appendix B

The ADA’s remedies are available only for

discrimination against “qualified individual{s] with a

disability.” 42 U.S.C. § 12122(a); Sutton v. United Air

Lines, Inc., 527 U.S. 471, 119 S.Ct. 2139, 144 L.Ed.2d

450 (1999). In other words, if Delgado is not disabled

within the meaning of the ADA, he may not recover

under the statute. Williams v. Excel Foundry &

Machine, Inc., 489 F.3d 309, 311 (7th Cir.2007). Delgado

can prove that he is disabled under the ADA by

establishing that: 1) he has a physical or mental

impairment that substantially limits one or more major

life activities; 2) he has a record of such impairment, or

3) he is regarded as having such an impairment by his

employer. 42 U.S.C. § 12102(2)(A); see Kampmier v.

Emeritus Corp. ., 472 F.3d 930, 937 (7th Cir.2007). An

analysis of whether or not an individual is disabled under

the ADA is made on a case-by-case basis. Jd. at 938;

Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S.

184, 198, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002). Delgado

claims that his lifting restrictions “substantially limit”

his major life activity of working, that Certified Grocers

regarded him as being disabled, and that he is otherwise

a qualified individual. We examine each of his claims in

turn.

2la

Appendix B

A. Impairment That “Substantially Limits” a

Major Life Activity

Delgado claims that his shoulder injury and the

restrictions it necessitates substantially limits him in the

major life activity of working. Delgado’s physicians have

restricted him to lifting no more than 50 pounds, to

carrying no more than 25 pounds, and from doing any

overhead lifting or work in cold or refrigerated areas.

As the Supreme Court has explained, “merely

having an impairment does not make one disabled for

purposes of the ADA.” Toyota Motor, 534 U.S. at 195.

The requirement that the disability, to be recognized

as such, must “substantially limit” a major life activity

is a “demanding” standard. /d. at 197; Scheerer v. Potter,

443 F.3d 916, 919 (7th Cir.2006). A disability that

“substantially limits” a major life activity is one that

either leaves the individual unable to perform or

significantly restricts the individual from performing a

major life activity that the average person in the general

population can perform. Kampmier, 472 F.3d at 937; see

also Toyota Motor, 534 U.S. at 198; 29 CFR 1630.2(j)()(i)-

(ii). The nature of the limitation is considered “in light

of that which most people do in their daily lives, not with

reference to a specific job.” E.L.0.C. v. Sears, Roebuck

& Co., 417 F.3d 789, 801 (7th Cir.2005); see also Toyota

Motor, 534 U.S. at 201.

An individual who claims that he is substantially

limited in the major life activity of working must show

that his condition restricts him in his ability to perform

22a

Appendix B

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.” 29 C.FR. § 1630(j)(3)(1);

Kupstas v. City of Greenwood, 289 F.3d 609, 612 (7th

Cir.2005). The Supreme Court has emphasized that,

assuming working can be considered a major life activity

at all, a claimant must show “an inability to work in a

‘broad range of jobs,’ rather than a specific job.” Toyota

Motor, 534 U.S. at 200; E.F.0.C. v. Schneider Nat., Inc.,

481 F.8d 507, 511 (7th Cir.2007). The Seventh Circuit

requires that a plaintiff claiming an inability to work in

a broad range or class of jobs must demonstrate that

his impairment “substantially limits” employment

generally, rather than simply precluding him from

performing a “particular specialized job or a narrow

range of jobs.” /d. (internal citations omitted). To do so,

a plaintiff must present evidence of the number and type

of jobs in his geographical area from which he would be

excluded as a result of his impairment. Jd.; 29 C.F-R.

§ 1630.2(j); E.£.0.C. v. Rockwell Intern. Corp., 243 F.3d

1012, 1017 (7th Cir.2001).

Delgado asks us to conclude that his lack of success

in job hunting is due to his work restrictions, claiming

that employers are generally unwilling to hire someone

with work restrictions. While Delgado has not been inun

with job offers, he offers no evidence that he was turned

down from a job because of his work restrictions.

Delgado has appended a significant volume of papers

to his response to Certified Grocers’ summary judgment

motion in support of his claim. These papers consist of

fax cover sheets to various employers (only some of

23a

Appendix B

which contain any indication of the position for

which Delgado applied), an offer of employment from

DoubleTree Hotels as a Housekeeping Houseperson,

several rejection letters, job advertisements, forms

notifying Delgado that he had been selected to be

interviewed, and Delgado’s own notes from his job

search. There is no information from which we could

determine the number of jobs for which Delgado applied,

whether he was qualified for the jobs for which he was

applying, or the outcome of many of his applications.

Delgado’s job history since his termination also

contradicts his bare assertion that his work restrictions

have prevented him from obtaining employment. He has

undergone vocational training, and through the

vocational agency, obtained a job as a mover at Adecco.

After he quit the job at Adecco, he has been offered at

least two other positions—one as a forklift driver (a

position he believed Certified Grocers should have

transferred him to in order to accommodate his work

restrictions) and one as a baggage handler. He did not

accept either of these positions. It is inconsistent to claim

both that one is substantially limited in the major life

activity of working and yet at the same time accept

another job and receive job offers for two more jobs.

See Moore v. J.B. Hunt Transport, Inc., 221 F3d 944,

953 (7th Cir.2000); Heimann v. Roadway Express, Inc.,

228 F.'Supp.2d. 886 (N.D.I11.2002).

Furthermore, he has provided no evidence that his

inability to lift objects weighing more than 50 pounds,

carry more than 25 pounds, or lift overhead means that

24a

Appendix B

he is excluded from a broad class of jobs available to a

person of his skills and education. He has failed to

provide the required evidence of the number and type

of jobs in his geographical area from which he would be

excluded as a result of his impairment. See 29 C.FR.

§ 1630.2); Rockwell Intern. Corp., 243 F.3d at 1017.

Apparently in an attempt to address this evidentiary

requirement, Delgado’s counsel proffered to this court

an “admittedly unscientific” study that she conducted

on the Internet, arguing that Delgado could not afford

to hire a vocational expert.’® This “study” consisted of

counsel performing a job search on the website

Manpower.com, searching for jobs that she considered

Delgado eligible to apply for considering his experience

and skills, and then eliminating the jobs that required

lifting. Counsel deemed Delgado qualified by virtue of

his skills and experience for only 37 of the 444 jobs posted

and then, after eliminating jobs requiring lifting,

concluded that he was qualified only to perform 17 out

of those 37 jobs. Counsel admits that she is not an expert

but claims that the “study” was an effort to demonstrate

that Delgado was barred from a wide range of jobs.

3. Counsel explains that Delgado could not afford to hire

an expert to opine as to the state of the labor market and

Delgado’s employment opportunities. This is not an acceptable

excuse for a failure to present evidence, as means exist by which

individuals with demonstrated financial need may appeal to

the court for aid. See 28 U.S.C. § 1915. Furthermore, it does not

excuse the lack of any information concerning the number and

type of jobs available in the region, which this Court presumes

may be available from public records and statistics kept by

federal and state agencies in the course of their business.

25a

Appendix B

This “study” is not admissible as evidence under

Fed.R.Evid. 702. Essentially, counsel offers this “study”

to prove that Delgado is restricted to applying for only

one third of the jobs available to a person of his skills

and experience. The foundation for her opinion is data

gathered and analyzed by her, using criteria and

standards she has developed—essentially, an expert

opinion. Not only did counsel not disclose this “study”

to Certified Grocers in discovery, but she admits that

she is not qualified as a vocational expert and that her

study is generally unscientific. Accordingly, we determine

that this evidence is being offered as scientific evidence,

in the form of statistics, but lacks any foundation at all

which would assist a trier of fact in understanding the

evidence or determining a fact in issue as required for

admissibility under Fed.R.Evid. 702. Therefore,

counsel’s study and her accompanying affidavit are

stricken from the record.

Accordingly, we conclude that Delgado has not

presented evidence that his inability to lift more than

50 pounds, lift overhead, and carry more than 25 pounds

has excluded him from a broad class of jobs. See, e.g.,

Kupstas, 398 F.3d at 613 (employee not disabled within

the meaning of the ADA when he was unable to rake or

shovel for more than 2 hours continuously or 4 hours in

a day and could lift no more than 55-60 pounds);

Contreras v. Suncast Corp., 237 F.3d 756, 763 (7th

Cir.2001) (employee unable to lift in excess of 45 pounds

for a long period of time, unable to engage in strenuous

work, and unable to drive a forklift for more than four

hours a day did not have an ADA-qualifying disability);

26a

Appendix B

see also Williams v. Excel Foundry & Machine, Inc.,

489 F'3d 309, 312 n. 2 (7th Cir.2007); Mays v. Principi,

301 F.3d 866, 870 (7th Cir.2002) (noting that many

Americans are limited in their ability to lift heavy

objects). Therefore, he has not shown that his lifting

restrictions substantially limit him in the major life

activity of working such that he may be considered

disabled under the ADA.

B. “Regarded as Disabled” by Employer

Even though Delgado may not have a disability as

recognized by the ADA, he may show that his employer

regarded him as disabled in order to come within the

protections of the ADA. To show that his employer

regarded him as disabled, he must show that either 1)

the employer mistakenly believed that he has an

impairment that substantially limits a major life activity

or 2) the employer mistakenly believed that an existing

impairment that is not really limiting does substantially

limit a major life activity. Cassimy v. Bd. of Educ. of the

Rockford Public Schools, Dist. # 205, 461 F.3d 932, 937

(7th Cir.2006). Simple awareness does not equate to a

belief of a substantially limiting condition. Jd. As the

Seventh Circuit has explained, “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,

ther there is no violation of the ADA under the

‘regarded as’ prong of the statute.” Jd. at 938 (quoting

Mack v. Great Dane Trailers, 308 F.3d 776, 782 (7th

Cir.2002)).

27a

Appendix B

Certified Grocers argues that it did not regard

Delgado as having a disability that substantially limited

his ability to work, pointing to the vocational training it

offered Delgado as evidence of its faith that Delgado

could find alternate employment. Furthermore,

Certified Grocers argues that it recognized only that

Delgado could not perform a specific job—warehouse

picker—and for that reason Delgado was fired. However,

Delgado claims that Certified Grocers regarded him as

disabled because he was fired pursuant to a policy under

which employees who are deemed permanently

restricted are automatically fired (a policy Delgado

terms a “100% rule”). Delgado cites a Sixth Circuit case,

Henderson v. Ardco, Inc., 247 F.3d 645 (6th Cir.2001),

for the proposition that one may infer, from an

employer’s 100% healed rule, that the empioyer regards

the employee as barred from a broad class of jobs.

Further, Delgado cites Hendricks-Robinson v. Excel

Corp., 154 F.3d 685 (7th Cir.1988) for the proposition that

a 100% healed rule is a violation of the ADA.

Delgado’s arguments are more properly addressed

to his employer’s actions in accommodating him, rather

than to Certified Grocers’ belief concerning the nature

of his impairment. Henricks-Robinson’s analysis of 100%

healed rules simply does not apply to this case, since in

Henricks-Robinson, the parties had stipulated that the

employees were “qualified individuals with disabilities”

under the ADA. Hendricks-Robinson, 154 F.3d at 692.

In that case, the Seventh Circuit expressly noted that

the issue of the employees’ disabilities was not before it

and that its analysis for the purpose of the ADA began

28a

Appendix B

with an examination of the employer’s accommodation

efforts. Jd. Therefore, the court discussed the

employer’s policies in the context of whether or not the

employer failed to accommodate their employees, not

whether or not a 100% healed rule is any reflection upon

the employer’s beliefs concerning their employees’

disabilities. Furthermore, the inference drawn by the

Sixth Circuit in Henderson is equally as inapplicable to

the facts of this case; in Henderson, the plaintiff’s

disabilities, which including restrictions on lifting and

bending, were more extensive, and the stated reason of

the employer in refusing to consider plaintiff for any

position in the factory was more encompassing than the

actions of Certified Grocers in this case. In fact, in

Henderson, the court recognized that “if the employer

had only a set of relatively physically demanding jobs

available and prevented a plaintiff from working these

jobs, the employer would not necessarily be ‘regarding’

the plaintiff as disabled.” Henderson, 247 F.3d at 653

n. 6.

In the Seventh Circuit, the fact that an employer

believes that its employee cannot perform a specific job

is not evidence of a generat belief that the employee is

unable to work in a broad class of jobs. Kupstas, 398

F.3d at 615. At most, the evidence shows that Certified

Grocers believed that Delgado’s lifting restrictions

prevented him from working in their refrigerated

warehouse and that their contract with Delgado’s union

prevented them from transferring him elsewhere in the

company, rather than any belief on their part that

Delgado was incapable of working generally. In fact,

29a

Appendix B

Delgado admits that his permanent restrictions prevent

him from performing the essential functions of his

position as a warehouse picker. Accordingly, we find that

Delgado has not presented any evidence that Certified

Grocers believed he was substantially limited in his

ability to work in a broad class of jobs or that he had a

disability under the ADA.

C. A “Qualified Individual”

The ADA provides protections only for “qualified

individual[s] with a disability,” which is defined in the

statute 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.” An employee who cannot

perform the essential functions of the job, even

with reasonable accommodation, is not a “qualified

individual” under the ADA. Rooney v. Koch Air, LLC,

410 F.3d 376, 382 (7th Cir.2005). Delgado has admitted

that, at the time of his termination, he could not lift the

100 pounds required of a Warehouse Picker, could not

work in cool temperatures in the warehouse, and could

not do the overhead lifting required of a Warehouse

Picker. Thus, regardless of whether or not Delgado’s

impairment rises to the level of a disability as recognized

by the ADA, he is not a “qualified individual” under the

statute because he has conceded that he could not

perform the essential functions of his position and that

there is no accommodation that exists that would help

him to perform the functions of his job. Accordingly, the

protections of the ADA are not available to him.

30a

Appendix B

CONCLUSION

For the foregoing reasons, Certified Grocers’ motion

for summary judgment is granted, and judgment is

entered in its favor.

s/ Charles P Kocoras

United States District Judge

Dated: August 16, 2007

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