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Cases highlited in blue are linked to the actual decision in Findlaw

Return to Selected Americans With Disabilities Act/504 Cases Court's Index

Ligas ex rel. Foster v. Maram, --- F.3d --- (2/2007) The appellants are the representatives of a number of developmentally disabled people who were worried that they might have been unwilling members of a proposed class in a lawsuit filed under the Americans with Disabilities Act. Fearing that the remedy  being sought by the plaintiffs was contrary to their wishes, they sought to intervene. The plaintiffs and defendants opposed the intervention, and the district court denied the petition. The intervenors appeal that decision, and we affirm.

Kampmier v. Emeritus Corp., 472 F.3d 930 (1/ 2007) Because Kampmier has not offered evidence that she is disabled within the meaning of the ADA, her ADA failure to accommodate and retaliation claims are without merit.

Timmons v. General Motors Corp., 469 F.3d 1122 (12/2006) Dock Timmons (“Timmons”), who suffers from multiple sclerosis, sued General Motors (“GM”) for violating the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., after GM involuntarily placed him on disability leave. The district court awarded summary judgment to GM and Timmons appeals. He claims the district court applied the wrong legal test to his case and the evidence establishes a material factual dispute regarding GM’s reason for placing him on disability leave. We affirm.

Cassimy v. Board of Educ. of Rockford Public Schools, Dist. #??205, 461 F.3d 932 (9/2006) Here, the record shows that Cassimy told members of the Board that he was being treated for depression and anxiety, and that the Board received medical records indicating that he was being treated for these conditions. What it does not show, however, was that the Board “held exaggerated views about the seriousness of his illness.” Ogborn, 305 F.3d at 768. To the contrary, Brown testified that he was aware that Cassimy suffered from depression and anxiety and had sought medical help for this problem, but that “at no time was the doctor characterizing Mr. Cassimy as disabled, only that there was an illness.” We conclude, in light of all this, that the facts in the light most favorable to Cassimy do not show that he either had a disability for ADA purposes, or that the Board regarded him as having a disability. This finding is enough to support the district court’s decision to grant summary judgment in the Board’s favor on both the discrimination claim and the failure-to-accommodate claim. Cassimy is unable to show that only he, among a group of otherwise similarly situated employees, was treated adversely by the Board; he has no other direct or circumstantial evidence of retaliation; and he offers no evidence that would support a finding that the Board’s stated reasons were pretextual. The district court therefore correctly granted summary judgment for the Board on the retaliation claim also.

Yindee v. CCH Inc., 458 F.3d 599 August 11, 2006 Because no evidence in the record would allow a reasonable jury to find that Yindee’s vertigo is an aspect of her genuine disability (infertility), she does not have a sound claim of disability discrimination under the ADA. (This means that we need not decide whether a medical condition or symptom associated with a disability must be accommodated independently, when the associated condition is not serious enough to be a disability on its own.) Yindee has not created a material dispute about the pretext question, so CCH is entitled to prevail as a matter of law.

Scheerer v. Potter, 443 F.3d 916 (4/2006)the district court held that Scheerer could not establish that he suffered a substantial limitation in major  ife activities, such as walking, eating, sleeping, or sexual reproduction. The record does not indicate otherwise. Although there can be no doubt that Scheerer suffered from pain and significant inconvenience from his progressively worsening diabetic condition, he does not point to enough evidence in the record to show that he was prevented from performing, or was otherwise severely restricted in, any major life activities. During the pertinent time period, Scheerer did not experience many of the more severe symptoms of diabetes, including severe hypoglycemia, seizures, or loss of consciousness. This suggests that his diabetes had not yet worsened to such a stage where it severely restricted his major life activities.

Johnson v. ExxonMobil Corp., 426 F.3d 887 (10/ 2005) Unlike Cleveland, where the plaintiff's argued that she made consistent statements in her ADA claim and the SSDI application, Johnson merely argues that he was mistaken in his SSDI application.As this court has noted, Cleveland does not stand for the proposition that defendants should be allowed to explain why they gave false statements on their SSDI applications, which is essentially what Johnson seeks to do here. See Opsteen v. Keller Structures, Inc., 408 F.3d 390, 392 (7th Cir. 2005) ("[C]ontradictions are unacceptable: a person who applied for disability benefits must live with the factual representations made to obtain them, and if these show inability to do the job then an ADA claim my be rejected without further inquiry.").

E.E.O.C. v. Sears, Roebuck & Co.,417 F.3d 789 (8/2005) Our task has not been to determine whether Keane was disabled when she worked at Sears, whether Sears was aware of her disability, whether Sears reasonably accommodated Keane's disability, or which party caused the breakdown of the interactive process. Rather, we have merely concluded that there is sufficient evidence to allow each of these questions to be presented to a jury. Accordingly, we REVERSE the entry of summary judgment in favor of defendant-appellee Sears and REMAND for proceedings consistent with this opinion.

Darnell v. Thermafiber, Inc., 417 F.3d 657 (7/2005) We conclude that Thermafiber produced sufficient evidence for the district court to conclude as a matter of law that Darnell's uncontrolled diabetes made him a direct threat to his own safety and that of his co-workers, his relatively brief work history notwithstanding. As a final matter, Darnell argues that Thermafiber failed to consider making reasonable accommodations for his disability, such as allowing him to take additional food and water breaks. This is inaccurate. Dr. McCann assumed that Thermafiber would afford such opportunities in rendering his assessment. McCann Dep. at 32. Moreover, it was Darnell's longstanding failure to exercise good judgment in 10 No. 04-2170 treating his diabetes and taking care of himself that was the very reason Thermafiber deemed him unsafe.

Jackson v. City of Chicago, 414 F.3d 806, (7/2005.)  In sum, on the record before us, we must conclude that Ms. Jackson is not a person with a disability who, subject to reasonable accommodation, can perform the essential functions of the police officer position. It is clear that being able to carry a firearm safely is an essential function of the police officer position; it is equally clear that, due to her fibromyalgia, Ms. Jackson is not capable of handling safely a weapon. Furthermore, to the extent that Ms. Jackson is claiming that the City has abandoned its obligation to find her a position working for the City outside of the Chicago Police Department, we must conclude that Ms. Jackson failed to engage in the interactive process.

Wisconsin Community Services, Inc. v. City of Milwaukee, Wisconsin, 413 F.3d 642 (6/2005) Much of the testimony before the Board of Zoning Appeals evinced antipathy to a mental-health clinic that would include many released convicts among its clientele. That some witnesses exemplified the "not in my back yard" approach does not necessarily mean that the Board took that (forbidden) view, but it did refer to community opposition as one reason for its decision. This implies that if WCS or some other organization had proposed to use the same building to perform checkups for a HMO or provide outpatient kidney dialysis, the Board might well have said yes. Such a difference in treatment would be discriminatory, and WCS would be entitled to relief under federal law. Whether the Board acted with discriminatory intent is a question of fact whose resolution belongs in the first instance to the district court. See Pullman-Standard v. Swint, 456 U.S. 273, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982). The court may need to take additional evidence on this subject, rather than limit consideration to the record made before the Board, as it has done so far.The parties have devoted considerable energy to debating whether the proposed accommodation is reasonable, if one is required in order to overcome intentional discrimination or disparate impact. It is. See Oconomowoc Residential Programs, Inc. v. Milwaukee, 300 F.3d 775 (7th Cir.2002). Milwaukee is barking up the wrong tree in arguing that federal judges must "defer" to local zoning codes when deciding what accommodations are reasonable. Federal statutes supersede state and local rules; the question whether an accommodation is required is one of federal law, though the extent to which a proposed accommodation would disrupt state policy must weigh in the balance, as Barnett and its predecessors show. See also, e.g., Ansonia Board of Education v. Philbrook, 479 U.S. 60, 67-69, 107 S.Ct. 367, 93 L.Ed.2d 305 (1986) (discussing accommodation under Title VII of the Civil Rights Act of 1964); Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84, 97 S.Ct. 2264, 53 L.Ed.2d 113 (1977) (same). Our difficulty with the district court's resolution concerns the initial question whether WCS is entitled to any accommodation, and that is the issue on which the parties now should concentrate their attention

Karraker v. Rent-A-Center, Inc., 411 F.3d 831 (6/2005) We accept Dr. Koransky's contention that a high score on the Pa scale does not necessarily mean that the person has paranoid personality disorder. But it also seems likely that a person who does, in fact, have paranoid personality disorder, and is therefore protected under the ADA, would register a high score on the Pa scale. And that high score could end up costing the applicant any chance of a promotion. Because it is designed, at least in part, to reveal mental illness and has the effect of hurting the employment prospects of one with a mental disability, we think the MMPI is best categorized as a medical examination. And even though the MMPI was only a part (albeit a significant part) of a battery of tests administered to employees looking to advance, its use, we conclude, violated the ADA.

Rooney v. Koch Air, LLC, 410 F.3d 376 (6/2005) the district court granted Koch Air's motion for summary judgment, finding that Rooney had failed to submit evidence showing that a similarly situated nondisabled employee had been treated more favorably than he was. While this may be so, we affirm for a more fundamental reason: he has not shown that he is disabled for purposes of the ADA.

Opsteen v. Keller Structures, Inc., 408 F.3d 390 (5/2005) Keller could not accommodate a permanent disability with part-time employment for a few months, though it went beyond what Pals required by putting Opsteen on six months' leave to see whether improvement was likely, and not letting him go until it had medical opinions that he would remain totally disabled after that period. Nor could Keller be expected to let Opsteen work a few hours a day; part-time work is an accommodation suited to physical weakness, and hours lengthen as strength returns. Mental shortcomings would have made every hour on the job dangerous to Opsteen and his co-workers, so he has not suggested a part-time job as an option.

Hammel v. Eau Galle Cheese Factory, 407 F.3d 852 (5/2005) an employer is entitled to conclude that termination is warranted solely on the basis of the employee's patent inability to perform his job in manner that meets the essential requirements of that position. This is true even if, after further inquiry, an employer determines that the employee's inability to perform the job "is due entirely to a disability." Matthews, 128 F.3d at 1195; see also Palmer, 117 F.3d at 352; Miller, 107 F.3d at 484-85. Either way, an employer is only in violation of the ADA if a terminated employee can establish that reasonable accommodations exist that would have enabled that person to perform the essential functions of his or her job. See Miller, 107 F.3d at 485-86. As demonstrated below, Hammel failed to put forth any such accommodations and thus cannot prevail.

Nese v. Julian Nordic Const. Co., 405 F.3d 638 (4/2005) There simply is no evidence in this record that under this standard Nordic perceived Nese as disabled. In fact, Nese was hired even though he told Julian that he could not drive at that time because he had suffered a seizure. Also, as an aside, we will mention that the same person who hired Nese is the one who fired him. In that situation, we have said that it is unlikely that discrimination is involved. The conclusion is based on a common-sense psychological assumption, that "[i]t hardly makes sense to hire workers from a group one dislikes (thereby incurring the psychological costs of associating with them), only to fire them once they are on the job."

Takle v. University of Wisconsin Hosp. and Clinics Authority, 402 F.3d 768 (3/2005) The district judge dismissed the suit on the hospital's motion, ruling that the hospital is an arm of the State of Wisconsin and is therefore immune from suit in federal court unless it has consented to be sued there, which it has not. Title I of the ADA does not abrogate state sovereign immunity. In a case such as this, in which a privatized "independent" entity for which the state bears no financial responsibility is being sued over its personnel policies, which are entirely within its discretion, the fact that the suit can have no adverse effect on the state's finances is highly relevant. The grant of the motion to dismiss is REVERSED and the case REMANDED

Kupstas v. City of Greenwood, 398 F.3d 609 (2/2005) None of Kupstas's attempts to describe his perceived raking/shoveling impairment as more serious than it first appears have created a triable issue. Kupstas has failed to present sufficient evidence from which a reasonable jury could conclude that Greenwood regarded him as having an impairment that rendered him unable to work in a class or broad range of jobs. At most, Kupstas can show that Greenwood regarded him as unable to work in a specific job, the truck driver/laborer position. This belief cannot be the basis of an ADA violation.

Mannie v. Potter, 394 F.3d 977 (1/2005) Mannie has failed to demonstrate that the behavior of her co-workers and supervisors altered a term or condition of her employment. In Silk, we held that a police officer who experienced direct verbal abuse and threats of  violence did not establish a hostile work environment because the harassment did not materially alter the conditions of his employment. Id. at 808. Mannie likewise has submitted no evidence that could establish that she experienced a tangible employment action or that she was unable  to perform her job because of the conduct of her supervisors and co-workers. Mannie has not substantiated her claim that she suffered an adverse employment action, and she has also failed to identify similarly situated employees who did not file EEOC charges and were treated more favorably. Thus summary judgment was appropriate under either method of proving retaliation.

Branham v. Snow, 392 F.3d 896 (12/2004) On the record in this case, a reasonable trier of fact could find that Mr. Branham is qualified for the position of criminal investigator. Therefore, we must conclude that the IRS is not entitled to summary judgment on the question of Mr. Branham's qualifications. See Anderson, 477 U.S. at 248 ("summary judgment will not lie . . . if the evidence is such that a reasonable jury could return a verdict for the nonmoving party"). Mr. Branham has raised a genuine issue of material fact as to whether he can perform the essential functions of the position of criminal investigator without becoming a threat to the safety of himself or others. On this record, the agency has not established otherwise. For the reasons set forth in this opinion, the judgment of the district court is reversed and the case is remanded for proceedings consistent with this opinion. Mr. Branham may recover his costs in this court. REVERSED and REMANDED

Hunt-Golliday v. Metropolitan Water Reclamation Dist. of Greater Chicago, 390 F.3d 1032 (12/2004) Even if Hunt-Golliday could prove that the District terminated her employment in 2002 for discriminatory reasons, she would not be entitled to relief. Her termination was proper because, although carried out in 2002, the decision to terminate was made and authorized by the Civil Service Board in 1995. Extensive judicial review of that decision has occurred, and it has been deemed legitimate. The district court's dismissal of this case under Rule 12(b)(6) is AFFIRMED

Stepney v. Naperville School Dist. 203, 392 F.3d 236 (12/2004) Because the ADA's enforcement provision expressly incorporates § 2000e-5 of Title VII, claims for discrimination under the ADA also must be filed within 300 days "after the alleged unlawful employment practice occurred." 42 U.S.C. § 2000e-5(e)(1), incorporated by 42 U.S.C. § 12117(a). Stepney has not demonstrated that he filed a timely EEOC charge or that there is any genuine issue of material fact regarding accrual. Stepney's EEOC charge, filed more than 600 days after the accrual of his claims, was untimely and that untimeliness bars the present action.

Cigan v. Chippewa Falls School Dist., 388 F.3d 331 (11/2004) Cigan's line of argument supposes that an employer offers accommodation only if it thinks that the employee suffers from a substantial limitation in a major life activity. The "only if" is vital; if employers accommodate for other reasons, then the fact of accommodation does not support an inference that a given employer must have regarded a given employee as disabled. Cigan does not try to justify the "only if" clause, and it would not be a sound inference. Decent managers try to help employees cope with declining health without knowing or caring whether they fit the definition in some federal statute. Managers also may respond to state laws, local regulations, collective bargaining agreements, and other norms that go beyond federal law. These may create legal entitlements or practical expectations without implying anything about "disability" under the ADA. Cigan offers no reason to conclude that the principal at her school knew, supposed, or cared anything about the effect of her conditions on "major life activities" when providing breaks, chairs, and other assistance to continue teaching. Because the record would not permit a reasonable trier of fact to conclude that the school district regarded Cigan as "disabled," we need not decide whether the ADA requires an employer to accommodate the demands of a person who is regarded as disabled but lacks an actual disability.

Radaszewski ex rel. Radaszewski v. Maram 383 F.3d 599 (9/2004) Eric's mother, Donna Radaszewski, filed this suit against the Director of the IDPA (the "Director") on Eric's behalf, contending that the IDPA's failure to fully fund athome, private-duty nursing for Eric amounts to disability discrimination in violation of section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (the "Rehabilitation Act"), and Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12132 (the "ADA"), in that Illinois is refusing to provide the medical services that Eric requires in order to remain in the most community-integrated setting appropriate for his needs, which is his home. The district court entered judgment on the pleadings in favor of the Director, reasoning that the ADA claim against the Director was barred by the Eleventh Amendment and that the Rehabilitation Act claim failed as a matter of law because in-home nursing care is not a service that Illinois currently provides to any adult individual. We reverse and remand for further proceedings.

Larimer v. International Business Machines Corp., 370 F.3d 698 (6/2004) Plaintiff was a new hire and the uncontradicted evidence, described at length in the district court's opinion and unnecessary to repeat here, demonstrated that he failed to obtain an adequate understanding of the product that he had been hired to sell (Lotus software) and as a result was unable to convince prospective customers that the product was the answer to their needs. He was especially poor at convincing them to buy the various ancillary services that are an important part of the revenue of many software producers, including IBM. His discharge had nothing to do with the expense incurred by IBM with respect to his daughters.

Ammons v. Aramark Uniform Services, Inc., 368 F.3d 809 (5/2004) We find no support, and Ammons has offered none, for the conclusion that an interactive process must include an employee's counsel or other persons including a rehabilitation counselor. Although there may be cases where an attorney or a vocational expert would be of considerable assistance in the interactive process, there is no requirement that an attorney and/or vocational expert need to participate. The ADA envisions no more than "a flexible, interactive process by which the employer and employee determine the appropriate reasonable accommodation." Rehling v. City of Chicago, 207 F.3d 1009, 1015 (7th Cir. 2000). Such an interactive process occurred here. The undisputed facts establish that Ammons was incapable of performing the essential functions of his job with or without reasonable accommodations. Finally, we conclude that Aramark engaged in the required interactive process. For these, and the foregoing reasons, we affirm.

Hoffman v. Caterpillar, Inc., 368 F.3d 709 (5/2004) Shirley Hoffman, who is missing her left arm below the elbow, brought this employment discrimination case under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA"). Hoffman alleged that her employer, Caterpillar, Inc., engaged in unlawful disparate treatment by refusing to train her to operate a high-speed document scanner. The case proceeded to trial and on February 6, 2003, the jury returned a verdict for Caterpillar. Hoffman now appeals, challenging myriad rulings, the jury instructions, and the denial of Hoffman's  motion to disqualify Judge McDade under 28 U.S.C. § 144. We affirm

Buie v. Quad/Graphics, Inc., 366 F.3d 496, (4/2004) An employer's decision to punish the instigator of a violent, or nearly-violent, episode more severely than it treats his victim is evidence of rationality, not pretext. Buie has not rebutted Quad/Graphics' nondiscriminatory reasons for first suspending and later discharging him. We affirm summary judgment as to Buie's claim under the ADA because he fails to create an issue of material fact under either the direct or indirect methods.

Foley v. City of Lafayette 359 F.3d 925 (3/2004) Robert Foley alleges that the City of Lafayette violated the Americans with Disabilities Act ("ADA") and the Rehabilitation Act of 1973 by failing to provide adequate egress from the city-owned train-station platform. The district court, relying on 49 C.F.R. § 37.161, concluded that the inoperable elevators and snow-covered ramp that prevented Foley from an easy exit from the platform were non-actionable isolated or temporary conditions as a matter of law. Because we agree with the district court's conclusion, we affirm the grant of summary judgment to the City of Lafayette.

Kramer v. Banc of America Securities, LLC, 355 F.3d 961 (1/ 2004) Colleen Kramer sued her former employer, Banc of America Securities, LLC ("BOA"), for, among other things, retaliatory discharge in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.  (the "ADA"). After a bench trial, the district court found in favor of BOA. On appeal we must determine whether compensatory and punitive damages are available as a remedy for a retaliation claim against an employer under the ADA. We affirm the district court's decision to deny consideration of compensatory and punitive damages, and its decision to conduct the trial in this case without a jury.

Flannery v. Recording Industry Ass'n of America, 354 F.3d 632 (1/2004) the district court granted RIAA's motion to dismiss as to all counts and entered judgment in RIAA's favor. The district court held the discriminatory discharge claims (Counts I and III) were time-barred, and the retaliation claims (Counts II and IV) were not actionable because retaliation connected to an independent contractor relationship does not have the requisite nexus to an employment relationship. Mr. Flannery timely appealed both of these holdings. Because we are in respectful disagreement with the determinations of the district court, we must reverse its judgment and remand the case for further proceedings.

Tockes v. Air-Land Transport Services, Inc., 343 F.3d 895 (9/2003) Allowing this suit to go forward would merely discourage employers from giving a chance for employment to workers who have some degree of disability. Loading and driving a flatbed truck is strenuous work, and so a partially disabled person would be bound to have an above-average probability of failing at it. If the probability materializes, as it may or may not have done in this case (remember that we don't know which hand Tockes used in fastening the load), and the company blames both itself and the partial disability for the failure, there is no reason to ascribe a discriminatory motive to the employer.

Shott v. Rush-Presbyterian-St. Luke's Medical Center, 338 F.3d 736 (8/2003)  In sum, we find that the district court did not abuse its discretion in refusing to reduce the attorney's fees award based on the rejection of a settlement offer early in the litigation, nor do we find an abuse of discretion in awarding of prejudgment interest. As to these two issues, the ruling of the district court is AFFIRMED. We, however, also conclude that Shott should not receive attorney's fees and costs for the first trial, although she may be compensated for work done in preparation for that trial. The district court's grant of attorney's fees for the first trial is REVERSED

Dyrek v. Garvey, 334 F.3d 590 (6/2003)  Viewed in the light most favorable to Dyrek, there is no evidence from which a reasonable trier of fact could conclude the FAA's proffered reason for Dyrek;s termination was pretextual. The district court's grant of summary judgment is AFFIRMED.

Byrne v. Avon Products, Inc., 328 F.3d 379 (5/2003) Time off may be an apt accommodation for intermittent conditions. Someone with arthritis or lupus may be able to do a given job even if, for brief periods, the inflammation is so painful that the person must stay home. See Haschmann v. Time Warner Entertainment Co., 151 F.3d 591 (7th Cir. 1998). Cf. Pals v. Schepel Buick & GMC Truck, Inc., 220 F.3d 495, 498 (7th Cir. 2000) (part-time work may accommodate a person recovering from a medical problem). But Byrne did not want a few days off or a part-time position; his only proposed accommodation is not working for an extended time, which as far as the ADA is concerned confesses that he was not a "qualified individual" in late 1998. "The rather common-sense idea is that if one is not able to be at work, one cannot be a qualified individual." Waggoner v. Olin Corp., 169 F.3d 481, 482 (7th Cir. 1999). Spotty attendance by itself may show lack of qualification. See EEOC v. Yellow Freight System, Inc., 253 F.3d 943 (7th Cir. 2001) (en banc). Inability to work for a multi-month period removes a person from the class protected by the ADA.

Dyke v. O'Neal Steel, Inc. 327 F.3d 628, (5/2003) Dyke has presented no evidence to show he would have been able to pass O'Neal's vision test, and O'Neal's expert reported that an individual needs vision in both eyes to meet O'Neal's vision standards. Because Dyke's monocular vision prevents him from meeting O'Neal's vision standards, we need not address the effects of his NRSD. Dyke cannot show he was able to perform the essential functions of the temporary position, and Judge Cosbey appropriately granted O'Neal's motion for summary judgment on this claim. The grant of summary judgment in favor of O'Neal is AFFIRMED.

Good Shepherd Manor Foundation, Inc. v. City of Momence, 323 F.3d 557, (5/2003)

Rauen v. U.S. Tobacco Mfg. Ltd. Partnership, 319 F.3d 891, (2/2003)  This case involves Beverly Rauen's claim under the Americans with Disabilities Act ("ADA") that her employer, United States Tobacco ("UST"), discriminated against her by failing to provide a reasonable accommodation for her disability. The district court granted UST's summary judgment motion, holding that Rauen was not entitled to an accommodation because, although she was disabled, she could perform the essential functions of her job without any accommodation. For the reasons set forth in the following opinion, we affirm the district court's decision.

Peters v. City of Mauston, 311 F.3d 835 (11/2002)  Assuming, solely for the purpose of summary judgment, that the City regarded Peters as disabled, the district court granted summary judgment in favor of the City. Specifically, the court found that Peters' requested accommodation was unreasonable because it eliminated an essential function of his job as an Operator. Peters appeals the district court's determination that heavy lifting was an essential function of his job as well as the district court's finding that his proposed accommodation was unreasonable. We affirm.

Mack v. Great Dane Trailers, 308 F.3d 776 (10/2002)  We agree with Great Dane that, on the ADA claim, there was insufficient evidence from which a jury could reasonably find that Great Dane regarded Mack as substantially limited in any major life activity and that the district court erred in denying Great Dane's motion for judgment as a matter of law.

Ogborn v. United Food and Commercial Workers Union, Local No. 881, 305 F.3d 763 (9/2002) merely having an impairment, such as depression, does not make an individual disabled under the statute. A claimant must also demonstrate that the im-pairment limits a major life activity—in Ogborn's case the activity of working. See 42 U.S.C. § 12102(2)(A); Toyota Mfg., 122 S. Ct. at 690; Sutton v. United Air Lines,Nos. 00-3779 & 01-1546 7 Inc., 527 U.S. 471, 482-83 (1999). Here Ogborn has not identified any evidence that depression limited his ability to work before his suspension and subsequent visit to Dr. Clark in August 1997; indeed, Ogborn testified at his deposition that when he went to see Dr. Clark he thought that he could still perform his job. Likewise, he has failed to point to any evidence that he could not work after October 23, when he certified that he could work.  Ogborn responds that even if his depression did not amount to an actual disability, the ADA still protects him because he was "regarded as" having a disability by officials at Local 881. See 42 U.S.C. § 12102(2)(C); Dvorak v. Mostardi Platt Assocs., Inc., 289 F.3d 479, 483-84 (7th Cir. 2002). That contention is also unpersuasive, however, because Ogborn has not presented evidence that union personnel held exaggerated views about the seriousness of his illness.

Watson v. Lithonia Lighting, 304 F.3d 749 (9/2002)  We conclude that the ADA does not require an employer that sets aside a pool of positions for recovering employees to make those positions available indefinitely to an employee whose recovery has run its course without re-storing that worker to her original healthy state. A person is "otherwise qualified" within the meaning of the ADA only if she can perform one of the regular jobs (with or without an accommodation). Watson cannot perform any assembly-line job at Lithonia; what she wants is a different job, comprising a subset of the assemblyline tasks, rather than an accommodation in the performance of one of Lithonia's existing assembly-line jobs (all of which entail all tasks). Because the ADA does not require employers to create new positions, the judgment of the district court is AFFIRMED.

Mays v. Principi, 301 F.3d 866 (9/2002)  the VA did accommodate the plaintiff's disability, and the accommodation was reasonable. The clerical position to which it reassigned her gave her the same net after-tax salary as she had earned as a nurse though with fewer fringe benefits and, because it did not draw on her nursing skills, fewer career advantages. It was not a perfect substitute. But an employer is not required to provide the accommodation for a disabled employee that is ideal from the employee's standpoint, only one that is reasonable in terms of costs and benefits. See Oconomowoc Residential Programs, Inc. v. City of Milwaukee, 2002 WL 1811325, at *7-8 (7th Cir. Aug. 8, 2002); Hoffman v. Caterpillar, Inc., 256 F.3d 568, 577 (7th Cir. 2001); Vande Zande v. Wisconsin Dept. of Administration, 44 F.3d 538, 542-43 (7th Cir. 1995); Reed v. LePage Bakeries, Inc., 244 F.3d 254, 259-60 (1st Cir. 2001); Gaul v. Lucent Technologies, Inc., 134 F.3d 576, 580-81 (3d Cir. 1998); Monette v. Electronic Data Systems Corp., 90 F.3d 1173, 1183 and n. 10 (6th Cir. 1996); Borkowski v. Valley Central School District, 63 F.3d 131, 138 (2d Cir. 1995).

Oconomowoc Residential Programs v. City of Milwaukee, 300 F.3d 775 (8/2002) After the City of Milwaukee (City) denied Oconomowoc Residential Programs, Inc. (ORP) a zoning variance to operate a community living facility in the City, ORP sued the City for violations of the Fair Housing Amendments Act (FHAA) and the Americans with Disabilities Act (ADA). The district court granted Oconomowoc's and plaintiff-intervenors' motion for partial summary judgment and denied the City's motion for summary judgment. The City appeals, and we affirm.

O'Neal v. City of New Albany, 293 F.3d 998 (6/2002) Kenneth O'Neal sued the City of New Albany, Indiana, its police merit commission, and the local police pension board for racial discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. §§ 1981 and 1983, and for violating the Americans with Disabilities Act (ADA), 42 U.S.C. § 12112(d). The magistrate judge, handling the case with the parties' consent, granted summary judgment for the de-fendants on all counts. We affirm the judgment with respect to O'Neal's ADA claim, but because O'Neal is entitled to a trial on his race discrimination claims, we vacate in part and remand the case to the district court for further pro-ceedings.

Szmaj v. American Tel. & Tel. Co., 291 F.3d 955 (5/2002)  The plaintiff brought suit under the Americans with Disabilities Act and is appealing from the grant of judgment as a matter of law to the defendant, his former employer, after a jury rendered a verdict for the plaintiff. The plaintiff has an unpleasant physical ailment known as congenital nystagmus, which makes it difficult for him to focus his eyes. The condition prevents him from holding a job in which he has to spend more than 50percent of his time reading. A long- term employee of AT&T, he several years ago applied for a job in the company that required him to read a computer screen for at least 80 percent of the workday. This was too much for him. He contends, and for purposes of the appeal we accept, that the company made no effort to accommodate his condition by giving him a job that would require less reading. And the Act does impose a duty of accommodation. But he has put the cart before the horse. The duty of accommodation arises only if the employee is determined to have a disability within the meaning of the Act, e.g., Hoffman v. Caterpillar, Inc., 256 F.3d 568, 572 (7th Cir. 2001); Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 563 (7th Cir. 1996); Gelabert-Ladenheim v. American Airlines, Inc., 252 F.3d 54, 59 and n. 5 (1st Cir. 2001); Swain v. Hillsborough County School Board, 146 F.3d 855, 858 (11th Cir. 1998), and we agree with the district judge that no jury could reasonably find that the plaintiff did have such a disability.

Dvorak v. Mostardi Platt Associates, Inc., 289 F.3d 479 (5/2002)  Kevin Dvorak was employed by Mostardi Platt Associates, Inc. (Mostardi-Platt) from 1989 until the spring of 1997. Throughout those years, he suffered from arthritis. Dvorak's arthritic pains would come in flare-ups; there were periods during which he was able to function quite well, and other times when his mobility was significantly restricted. In 1997, during one of the flare-ups, Dvorak missed work for a substantial number of days. Shortly thereafter, he was terminated. Believing that he lost his job because of his physical disability, he filed suit against Mostardi-Platt, alleging that he had been terminated in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. sec. 12101 et seq. The district court entered summary judgment in favor of Mostardi-Platt. Although it found that Dvorak was an individual with a disability as defined by 42 U.S.C. sec. 12102(2) and that genuine issues of fact existed as to whether he was qualified to perform his job with or without a reasonable accommodation, it concluded that he was terminated for reasons unrelated to his disability, and therefore had no claim under the ADA. We affirm.

Lewis v. Holsum of Fort Wayne, Inc., 278 F.3d 706 (1/2002)  Rebecca Lewis filed a pro se complaint in the District Court for the Northern District of Indiana alleging that Holsum of Fort Wayne, Inc., discriminated against her on the basis of her race, disability, and sex and that she was terminated from her employment with Holsum in retaliation for filing a claim with the Equal Employment Opportunity Commission ("EEOC") in violation of both the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. 12201 et seq., and Title VII of the Civil Rights Act of 1964. The district court granted Lewis leave to amend her complaint. Lewis added an additional theory of recovery asserting that she was denied medical leave and terminated in violation of the Family Medical Leave Act ("FMLA"), 29 U.S.C. sec. 2601 et seq. The district court granted summary judgment in favor of Holsum. Lewis now appeals. Because this court finds that the district court correctly entered summary judgment in favor of Holsum, we affirm.

Nawrot v. CPC Intern, 277 F.3d 896 (1/2002)  Ralph Nawrot sued his former employer, CPC International ("Bestfoods"), claiming that Bestfoods failed to accommodate reasonably his disability and discriminated against him because of his disability during his employment, and that his discharge was the product of age and disability discrimination and retaliation for seeking accommodation. In granting summary judgment to Bestfoods, the district court held that Nawrot could not show that he was a qualified individual with a disability under the Americans with Disabilities Act ("ADA") and that he had failed to show that Bestfoods' proffered legitimate, nondiscriminatory reasons for his termination were a pretext for discrimination. Nawrot asks us to reverse the decision of the district court. We do so in part. We affirm on pretext, but reverse on disability, finding that Nawrot has sufficiently demonstrated that he is a qualified individual with a disability under the ADA. We remand for the district court to resolve whatever remains of Nawrot's reasonable accommodation and disability-based discrimination claims in light of our decision.

DeVito v. Chicago Park Dist., 270 F.3d 532 (11/2001)  This is a suit under the Americans with Disabilities Act charging that the plaintiff's employer failed to accommodate his disability. After a bench trial, the district judge found that the plaintiff was physically inca-pable of working full time, even with an accommodation, and therefore was not within the Act's protections. We think the judge was right, and that in any event the plaintiff's claim is barred by the doctrine of estoppel.

Furnish v. SVI Systems, Inc., 270 F.3d 445 (10/2001)  Plaintiff, Kent Furnish, brought a suit against his ex- employer, alleging violations of the Americans with Disabilities Act ("ADA"). 42 U.S.C. sec. 12101. Defendant, SVI Systems, terminated plaintiff's employment on July 25, 1996, for the stated reason of "unsatisfactory work performance." Plaintiff alleges that he was terminated because he suffered from cirrhosis caused by chronic Hepatitis B. The district court granted summary judgment in favor of defendant on the grounds that plaintiff failed to show that he was disabled under the ADA. We agree with the district court's conclusion that plaintiff was not disabled, and therefore affirm.

Morgan v. Joint Admin. Bd., Retirement Plan of Pillsbury Co. and American federation of Grain Millers, AFL-CIO-CLC, 268 F.3d 456 (10/2001) 

Frazier v. Delco Electronics Corp., 263 F.3d 663 (8/2001)  The ADA defines disability as the impairment of a major life activity, such as walking, seeing, and reproduction. 42 U.S.C. sec. 12102(2)(A); Bragdon v. Abbott, 524 U.S. 624, 638-39 (1998); Amadio v. Ford Motor Co., 238 F.3d 919, 925 (7th Cir. 2001). Frazier does not have a disability in that sense. She is perfectly healthy. She can do anything that any normal person can do--except work in proximity to Bester Spears. Working in proximity to Bester Spears is not a major life activity.

Dadian v. Village of Wilmette, 269 F.3d 831 (10/2001)  the Village argues that the Dadians failed to prove that: 1) they were disabled, 2) the Village did notreasonably accommodate their disabilities, and 3) the Village intentionally discriminated against them because of their disabilities. The Village also contends that the jury instructions improperly placed the burden of proof on the Village as to whether Mrs. Dadian posed a direct threat to the safety of others, and that various evidentiary rulings at trial were improper. We address and reject each argument in turn

Lee v. City of Salem, Ind., 259 F.3d 667 (8/2001)  After Jimmy Dale Lee suffered a back injury that left him unable to perform heavy physical labor, the City of Salem, Indiana ("Salem" or the "city") discharged him from his position as sexton of the city's cemetery. Lee sued the city pursuant to the Americans with Disabilities Act ("ADA"), 42 U.S.C. sec. 12101, contending that he remained able to perform his work with or without accommodation. A jury found in his favor and awarded him damages. In the interim between his discharge and the trial, however, Lee had sought and obtained disability benefits, asserting in his application that he was unable to perform his past work as a sexton. When queried about the discrepancy at trial, Lee explained that although he was, in fact, able to perform his work, he had applied for benefits and claimed an inability to work because his disability had been "hammered into [his] head" and "[he] believed that was the only thing to do, sign up for disability." R. 126 at 64-65. As a matter of law, we find that explanation insuffi cient to satisfy the criteria established by Cleveland v. Policy Mgmnt. Sys. Corp., 526 U.S. 795, 119 S. Ct. 1597 (1999), and Feldman v. American Mem. Life Ins. Co., 196 F.3d 783 (7th Cir. 1999), and therefore reverse the judgment entered in Lee's favor.

Winfrey v. City of Chicago, 259 F.3d 610 (7/2001)

Pugh v. City of Attica, Indiana, 259 F.3d 619 (7/2001)  Clyde Pugh brought an ADA discrimination claim and a retaliatory discharge claim under 42 U.S.C. sec. 1983 against the City of Attica, Indiana, and the Attica Board of Works (collectively "the City")./1 The City filed a motion for summary judgment. The district court granted judgment to the City. The court held that Mr. Pugh failed to demonstrate that the City's proffered reason for his discharge was a pretext, as required to succeed on the ADA claim. The court also rejected Mr. Pugh's Section 1983 retaliatory discharge claim because he did not establish the requisite causal connection between his protected First Amendment activity and his termination. Mr. Pugh now appeals the district court's judgment on both claims. For the reasons set forth in the following opinion, we affirm the judgment of the district court.

Hoffman v. Caterpiller, Inc., 256 F.3d 568 (7/2001)  Shirley Hoffman, who was born without a left arm below the elbow, brought suit alleging that Caterpillar, Inc. unlawfully discriminated against her by failing to provide training on two machines in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. sec. 12101 et seq./1 Hoffman alleged both disparate treatment and failure to accommodate claims with respect to the first machine, the high speed scanner, while she only alleged disparate treatment with respect to the second, the main console. Caterpillar moved for summary judgment and the district court granted the motion. For the reasons stated herein, we affirm in part but vacate the district court's grant of summary judgment for Caterpillar on Hoffman's disparate treatment claim with respect to the high-speed scanner.

Emerson v. Northern States Power Co., 256 F.3d 506 (6/2001) Loretta Emerson/1 sued her former employer, Northern States Power Company ("NSP") for firing her in violation of the Americans with Disabilities Act ("ADA") 42 U.S.C. sec. 12101 et seq. The district court granted summary judgment in favor of NSP on the ground that Emerson was not a qualified individual. We affirm.

E.E.O.C. v. Yellow Freight System, Inc., 253 F.3d 943 (6/2001)  On May 4, 1998, the Equal Employment Opportunity Commission (EEOC) filed a single count complaint in the Northern District of Illinois against the Defendant-Appellee Yellow Freight System, Inc., alleging violations of the Americans with Disabilities Act based on Michael Nicosia's, an employee of Yellow Freight, HIV/AIDS disability./1 Specifically, the EEOC alleged that Yellow Freight terminated Nicosia because of his AIDS related cancer and in retaliation for Nicosia's filing of a complaint with the EEOC. Upon the defendant's motion, the district court granted summary judgment in favor of Yellow Freight. We affirm.

Williams v. United Ins. Co. of America, 253 F.3d 280 (6/2001)  The burden that would be placed on employers if disabled persons could demand special training to fit them for new jobs would be excessive and is not envisaged or required by the Act. The duty of reasonable accommodation may require the employer to reconfigure the workplace to enable a disabled worker to cope with her disability, but it does not require the employer to reconfigure the disabled worker

Kersting v. Wal-Mart Stores, Inc., 250 F.3d 1109 (5/2001)  James Kersting sued his current employer, Wal-Mart Stores, Inc., alleging that Wal-Mart violated the Americans with Disabilities Act ("ADA") by discriminating against him because of his disability, and then by retaliating against him for complaining about such discrimination. Wal-Mart moved for summary judgment. The district court granted the motion, concluding that Kersting failed to show that he suffered a materially adverse employment action. Kersting appeals. We affirm.

Mattice v. Memorial Hosp. of South Bend, Inc., 249 F.3d 682 (5/2001)  Dr. Thomas Mattice worked for Memorial Hospital in South Bend, Indiana as an anesthesiologist until he went on leave for depression and panic disorder. Mattice claims that after he returned to work, Memorial discriminated against him based on his disability, and he sued under the ADA. The district court dismissed his complaint for failure to state a claim. Mattice appeals. We reverse and remand for further proceedings.

Tyler v. Ispat Inland Inc., 245 F.3d 969 (4/2001)

Lawson v. CSX Transp., Inc., 245 F.3d 916 (3/2001)  John Lawson, Sr. filed a claim against CSX Transportation, Inc. ("CSX") under the Americans With Disabilities Act ("ADA" or "the Act"). He alleged that CSX had discriminated against him because of a disability when it refused to hire him as a trainee for a train conductor position. The district court held that Mr. Lawson had presented insufficient evidence for a jury to find that his Type I insulin-dependent diabetes constituted a disability within ADA coverage, or that CSX refused to hire him because of his disability. Because we believe that the district court did not analyze properly whether Mr. Lawson is entitled to the protections of the Act and therefore failed to assess properly the evidence of record, we must reverse the judgment of the district court and remand the case for proceedings consistent with this opinion.

E.E.O.C. v. Rockwell Intern. Corp., 243 F.3d 1012 (3/2001)

Basith v. Cook County, 241 F.3d 919 (3/2001) . Abuzaffer Basith sued Cook County, his employer, for discriminating against him in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. sec. 12112(a), and for retaliation in violation of Title VII, 42 U.S.C. sec. 2000e. The district court granted summary judgment for Cook County on both claims. Basith appeals. We affirm.

Amadio v. Ford Motor Co., 238 F.3d 919 (2/2001)  Thomas Amadio was an hourly employee on the assembly line at Ford Motor Company's Chicago Assembly Plant from June 9, 1986, to March 8, 1995, the date of his termination by Ford Motor Company (Ford). In the three years prior to his termination, Amadio suffered from a variety of ailments that led him to take a total of approximately 70 weeks of sick leave. Because Amadio allegedly failed to fully comply with Ford's sick leave policy, Ford terminated Amadio's employment. Following his termination, Amadio filed this suit against Ford under the Americans with Disabilities Act (ADA), 42 U.S.C. sec.sec. 12101-12213, claiming that Ford discriminated against him because of his disability or, in the alternative, because it regarded him as having a disability. The district court granted summary judgment in favor of Ford. We affirm.

Ozlowski v. Henderson, 237 F.3d 837 (1/2001)  Arthur Ozlowski sued his former employer, William Henderson, the Postmaster General of the United States, alleging that the United States Postal Service had failed to accommodate his disabilities in violation of the Rehabilitation Act of 1973, 29 U.S.C. sec. 791, et seq. The Postal Service filed a motion for summary judgment and Ozlowski filed a cross- motion for partial summary judgment. The district court granted the Postal Service's motion and denied Ozlowski's cross-motion. Ozlowski appealed to this court, and we affirm.

Pernice v. City of Chicago, 237 F.3d 783 (1/2001)  Whether or not his alleged disability of drug addiction created a wholly involuntary need to possess drugs, Pernice made a conscious choice to actually possess drugs. We therefore have little trouble separating his misconduct from his alleged disability. The City may punish Pernice for the former without violating any legal protections he may possess because of the latter.

Contreras v. Suncast Corp., 23 F.3d 756 (1/2001)  Antonio Contreras was injured in a forklift accident while employed by Suncast. After repeated violations of Suncast's safety protocols, work attendance policies, and acts of insubordination, Contreras was dismissed by the company. Contreras thereafter filed suit alleging a multitude of claims, primarily revolving around the assertion that Suncast had discriminated against him in violation of both Title VII of the Civil Rights Act of 1964, and the Americans with Disabilities Act ("ADA"). The district court granted Suncast summary judgment on all of Contreras's claims, denied Contreras's cross-motion for partial summary judgment and dismissed Contreras's remaining state law claims. The court also awarded Suncast a partial bill of costs. Contreras now appeals both the summary judgment determinations as well as the award of costs. For the reasons stated herein, we affirm.

Jay v. Intermet Wagner Inc., 233 F.3d 1014 (12/2000)  Jack Jay worked for Intermet Wagner, Inc. as a millwright, repairing and maintaining equipment, most of which was accessible only by climbing ladders and stairs. In 1992, Jay tore his Achilles tendon, an injury that, according to his treating physicians, permanently precluded him from jobs involving climbing. When Jay requested to be reinstated as a millwright, Wagner refused. Rather, Wagner placed Jay on extended medical layoff until an appropriate position became available 20 months later. Jay sued Wagner under the Americans with Disabilities Act ("ADA"). The district court granted summary judgment to Wagner because it found that Wagner reasonably accommodated Jay. We affirm.

Hansen v. Henderson, 233 F.3d 521 (11/2000)   Hansen, a mail carrier working out of the Glenview, Illinois post office, sued the Postal Service for failure to accommodate his disability, in violation of the Rehabilitation Act, 29 U.S.C. sec.sec. 701 et seq. A bench trial resulted in a judgment for the defendant.   Having credited Slickenmeyer's testimony that there were no vacancies in jobs that Hansen could perform, the district judge could not have gone on to find that Hansen had rebutted this testimony by inventing a job that he could have performed for the Postal Service. That is not proper rebuttal. The judgment in favor of the defendant must therefore be Affirmed.

E.E.O.C. v. Sears, Roebuck & Co., 233 F.3d 432 (11/2000)   The Equal Employment Opportunity Commission ("EEOC") filed suit under the Americans with Disabilities Act ("ADA"), 42 U.S.C. sec. 12101 et seq., alleging that Sears, Roebuck & Co. ("Sears"), engaged in unlawful employment discrimination against Judith Keane. The court granted leave to Keane to intervene in this matter and file an amended complaint. In addition to the EEOC's claim that Sears failed to reasonably accommodate Keane's disability, Keane asserts in her complaint that she has been constructively discharged from her job with Sears. The district court granted summary judgment for Sears on both claims, based largely on its determination that Keane was not considered disabled under the terms of the ADA.  We Affirm the district court's grant of summary judgment to the defendant on plaintiff's and intervenor's claim for constructive discharge; we Reverse the district court's grant of summary judgment in favor of the defendant on plaintiff's and intervenor's claim for failure to reasonably accommodate a disability under the ADA; and we Remand this case to the district court for further proceedings consistent with this opinion.

Leonberger v. Martin Marietta Materials, Inc., 231 F.3d 396 (10/2000)  Arlie Leonberger suffers from sleep apnea, a serious disorder that causes a person to stop breathing for brief periods of time while asleep; the oxygen deprivation that results disrupts the person's normal sleep cycle, leaving the individual very tired and with a tendency to fall asleep during the day. Beginning in 1967, Leonberger had a job working in a rock quarry that was eventually owned by the defendant, Martin Marietta Materials, Inc. (Martin). Martin became concerned about Leonberger's tendency to "nod off" on the job after it received complaints to that effect. After efforts to obtain medical treatment failed (for reasons we detail below), Martin fired him. Leonberger sued under the Americans with Disabilities Act ("ADA"), 42 U.S.C. sec.sec. 12101 et seq., but the district court granted summary judgment for Martin. We agree that Leonberger has not pointed to any triable issue of fact and is not entitled to judgment. We therefore affirm.

Webb v. Clyde L. Choate Mental Health and Development Center, 230 F.3d 991 (10/2000)  Jeffrey Webb appeals from the district court's entry of summary judgment in favor of Clyde L. Choate Mental Health and Development Center ("Choate"), on cross motions, on his claim that Choate failed to reasonably accommodate his disability and terminated his employment in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. sec. 12101 et seq. Webb contends that the district court erred in finding that he was not a "qualified individual with a disability" within the meaning of the ADA, that he was provided with reasonable accommodations to perform the essential functions of his job, and that he was not discharged because of his disability. On appeal, Choate disputes our jurisdiction over this appeal. For the reasons set forth below, we find that we have jurisdiction over this appeal, and affirm the district court's grant of summary judgment for Choate.

Bekker v. Humana Health Plan, Inc., 229 F.3d 662 (9/2000) Dr. Stephanie Bekker worked as a physician for Humana Health Plan, Inc. ("Humana") until Humana discharged her because it had received numerous reports that Dr. Bekker had smelled of alcohol and had exhibited other signs of alcohol use when seeing her patients. After her discharge, Dr. Bekker filed this action against Humana; she alleged that Humana discriminated against her on account of her perceived disability of alcoholism in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. sec. 12101 et seq. The district court granted summary judgment for Humana. For the reasons set forth in the following opinion, we affirm the judgment of the district court.

E.E.O.C. v. Humiston-Keeling, Inc., 227 F.3d 1024 (2000)  There is enough doubt on this record about the superiority of the office jobs for which Houser applies to make us prefer to rest decision on the alternative ground that the ADA does not require an employer to reassign a disabled employee to a job for which there is a better applicant, provided it's the employer's consistent and honest policy to hire the best applicant for the particular job in question rather than the first qualified applicant.

McPhaul v. Board of Com'rs of Madison County, 226 F.3d 558 (2000)  McPhaul presents no medical evidence to show that her performance deficiencies at either job were due to her alleged disability of fibromyalgia.

Moore v. J.B. Hunt Transport, Inc., 221 F.3d 944 (2000)  From the evidence Hunt had in its possession at the time of Mr. Moore's termination, the assessment of Dr. Hamilton and the NIOSH test results, Hunt "had no reason to regard [Mr. Moore] as disabled and gave no indication that it did." Harrington, 122 F.3d at 461. In light of Mr. Moore's inability to tolerate cold, damp conditions, Hunt simply determined that Mr. Moore could no longer perform the range instructor position. Because Hunt did not perceive Mr. Moore as precluded from a wide range of jobs, but only that of range instructor, Mr. Moore is not disabled for purposes of the ADA.

Pals v. Schepel Buick & GMC Truck, Inc., 220 F.3d 495 (2000)

Conley v. Village of Bedford Park, 215 F.3d 703 (2000)  He claimed that his employer, the Village of Bedford Park (the "Village"), had discriminated against him on the basis of his disability; Mr. Conley is a recovering alcoholic. The district court granted summary judgment for the Village. For the reasons set forth in the following opinion, we affirm the judgment of the district court.

Gile v. United Airlines, Inc., 213 F.3d 365 (2000)  Punitive damages depend not on the egregiousness of the defendant's misconduct, or its callousness in denying reasonable accommodation, but instead run from a culpable state of mind regarding whether that denial of accommodation violates federal law. See Kolstad, 119 S.Ct. at 2124; see also Deters v. Equifax Credit Info. Servs., 202 F.3d 1262, 1269 (10th Cir. 2000). United's failure to accommodate Gile's disability amounted to negligence because it misunderstood Gile's difficulties, did not regard her condition a disability and neglected to pursue Gile in developing an alternative accommodation. Although United wrongly believed that Gile was not disabled under the ADA and did not adequately address her accommodation request, United did not exhibit the requisite reckless state of mind regarding whether its treatment of Gile violated the ADA. The district court should have granted United's motion for judgment as a matter of law regarding punitive damages, and we will reverse the award of punitive damages, leaving Gile with a judgment for $200,000 in compensatory damages.

Walker v. Snyder, 213 F.3d 344 (2000)  In the wake of Kimel v. Florida Board of Regents, 120 S. Ct. 631 (2000), we have held that sec.5 does not afford Congress the authority to enact Title I of the ADA. Erickson v. Board of Governors for Northeastern Illinois University, 207 F.3d 945 (7th Cir. 2000); Stevens v. Illinois Department of Transportation, No. 98-3550 (7th Cir. Apr. 11, 2000). Our opinion in Erickson reserved questions concerning other titles of the ADA, which potentially have different scope. But Walker's claim falls squarely within both Erickson's and Stevens's reasoning, for those cases concluded that Title I of the ADA cannot be based on sec.5 to the extent that it requires accommodation of disabilities (rather than simply requiring the state to disregard disabilities) and to the extent that it forbids a state to take account of disabilities that are rationally related to permissible objects of public action. Walker wants Illinois to accommodate rather than ignore his disability.

Bay v. Cassens Transport Co., 212 F.3d 969 (2000)  Bay alleges that the district court erred in concluding that he was required to exhaust his administrative remedies before pursuing judicial relief. For the reasons stated below, we affirm the decision of the district court.

Spath v. Hayes Wheels Intern.-Indiana, Inc., 211 F.3d 392 (2000)  Because Spath has failed to present any evidence of discriminatory intent, we hold that he has failed to establish a prima facie case of disability discrimination.

Lenker v. Methodist Hosp., 210 F.3d 792 (2000)  Stephen Lenker sued his employer, Methodist Hospital, under the Americans With Disabilities Act, for failing to accommodate him. Lenker, a nurse, suffered from multiple sclerosis ("MS"). After his doctor issued a lifting restriction for him, the hospital removed him from his job as a nurse because the hospital considered lifting to be an essential part of the job that could not be reasonably accommodated. A jury found in favor of the hospital and Lenker appeals. We affirm.

Stevens v. Illinois Dept. of Trans., 210 F.3d 732 (2000) Passage of the ADA was not a proper exercise of Congress's authority under Section 5 of the Fourteenth Amendment. Therefore, the ADA does not abrogate the States' Eleventh Amendment immunity, and IDOT, as a department of the State of Illinois, cannot be sued without its consent in federal court for a violation of the ADA. We conclude that the district court did not have subject matter jurisdiction to hear this case. We Vacate the district court's entry of judgment in favor of the defendant and Dismiss this case for lack of subject matter jurisdiction.

Sinkler v. Midwest Property Management Ltd. Partnership, 209 F.3d 678 (2000)  Staceen Sinkler suffers from a "specific phobia" involving the operation of an automobile. Her condition makes her unable to drive anywhere unfamiliar to her, and on at least two occasions, her phobia forced her employer, Midwest Property Management Limited Partnership ("Midwest"), to make alternate travel arrangements so she could perform her job as regional sales manager. Midwest ultimately discharged Sinkler. Sinkler filed suit against Midwest, alleging that Midwest discharged her because of her phobia and failed to make reasonable accommodations for her condition, in violation of the Americans with Disabilities Act ("ADA"). Midwest moved for summary judgment, arguing that Sinkler was not a qualified individual with a disability within the meaning of the ADA because Sinkler's specific phobia did not substantially limit her major life activity of working. The district court granted Midwest's motion. Sinkler appeals, and we affirm.

Rehling v. City of Chicago, 207 F.3d 1009 (2000)  We hold that the district court properly granted partial summary judgment to the City on Rehling's reasonable accommodation claim, and that the district court did not commit an abuse of discretion by admitting evidence of the position in the Alternative Response Unit at the trial on disparate treatment. In addition, we hold that the district court's exclusion of evidence based on the attorney-client privilege was not clearly erroneous. Accordingly, we AFFIRM the decision of the district court.

Krocka v. City of Chicago, 203 F.3d 507 (2000)  For the reasons stated above, we Affirm the district court's grant of summary judgment to the Defendants on the issue of whether CPD regarded Krocka as disabled. We also Affirm the district court's denial of Krocka's request for a new trial, the district court's dismissal of Krocka's state law IIED claim, and the district court's denial of Krocka's request for attorney's fees.

Wright v. Illinois Dept. of Corrections, 204 F.3d 727 (2000)  Because Mr. Wright has failed to demonstrate that the Department regarded him as being substantially impaired in a major life activity,/4 he has not shown that he is disabled as defined in the ADA and cannot establish this prerequisite for claiming disability discrimination under the ADA. We therefore must affirm the district court's grant of summary judgment to the Department.

Robin v. Espo. Engineering Corp., 200 F.3d 1081 (2000) 

Jovanovic v. In-Sink-Erator Div. of Emerson Elec. Co., 201 F.3d 894 (2000)  The record before us supports the trial court's conclusion that regular and timely attendance is an essential function of the tool and die maker position at ISE. It also supports the court's conclusion that Jovanovic could not perform that function of his job. Further, because there is no evidence that Jovanovic ever requested an accommodation, nor that any reasonable accommodation would have enabled him to perform his job, the district court's conclusion that Jovanovic is not a qualified individual with a disability was not in error. Therefore, the trial judge's grant of summary judgment to ISE on Jovanovic's ADA claims was proper.

Schneiker v. Fortis Ins. Co., 200 F.3d 1055 (2000)  After her discharge, Susan A. Schneiker filed this action against her former employer, Fortis Insurance Company ("Fortis"), for violating the Americans with Disabilities Act (the "ADA"). In her complaint, Ms. Schneiker alleged that Fortis failed to accommodate her alcoholism and severe depression and discharged her because of these impairments. The district court granted summary judgment for Fortis; Ms. Schneiker now appeals. For the reasons set forth in this opinion, we affirm the judgment of the district court.

Cable v. Ivy Tech State College, 200 F.3d 467 (1999)

Doe v. Mutual of Omaha Ins. Co., 179 F.3d 557 (1999)

Green v. National Steel Corp., Midwest Div., 197 F.3d 894 (1999)  We hold that the district court's grant of summary judgment to National was proper. Green's failure to accommodate claim is barred because she omitted any mention of it from her EEOC complaint, and her disparate treatment claim fails because nothing in the record is sufficient to demonstrate that National did not honestly believe that Green had manipulated her personnel records.

Vollmert v. Wisconsin Dept. of Transp., 197 F.3d 292 (1999)  Therefore, the transfer to a position that did not involve the same opportunities for advancement was not a reasonable accommodation. Moreover, the training that was provided was not sufficiently designed to address the needs posed by Vollmert's disability. The Department was aware of Vollmert's dyslexia and learning disabilities since at least August 1994, and was specifically made aware of the need for specialized training by Dr. Woodard's letter in early 1995. Moreover, Vollmert explicitly requested a tutor trained in learning disabilities in April 1995, and Schutz indicated that such a trainer likely was available free of charge through the Division of Vocational Rehabilitation. The Department nevertheless failed to provide training geared toward her disability throughout that time. The Department may have been well-meaning in its efforts, but its attempts to accommodate her were not reasonable because they were not tailored to address the problems posed by her disability.

Gorbitz v. Corville, Inc., 196 F.3d 879 (1999)  Corvilla moved for summary judgment, arguing that Gorbitz failed to establish a prima facie case of discrimination because she did not establish that she had a disability as defined by the ADA. Gorbitz asserted that Corvilla management perceived her as disabled because they knew that she was being seen by various doctors. The district court found that Gorbitz established a prima facie case of discrimination under the ADA, but concluded that she failed to establish Corvilla's reasons for terminating her was pretextual. Accordingly, the court granted summary judgment in favor of Corvilla. We affirm.

Feldman v. American Memorial Life Ins. Co., 196 F.3d 783 (1999) To avoid summary judgment under Cleveland, a plaintiff must resolve the apparent inconsistency with an explanation which warrants a reasonable juror's conclusion that the plaintiff could perform the essential functions of her job, with or without reasonable accommodation, even assuming the truth of the earlier statement. Cleveland, 119 S.Ct. at 1604. Although we have already explained that contradictions between SSDI and ADA attestations might be explicable, and thus a plaintiff is entitled to account for such inconsistencies, we will not assume that such a contradiction can be resolved in the absence of direct explanation. The Court in Cleveland insisted that "[w]hen faced with a plaintiff's previous sworn statement asserting 'total disability' or the like, the court should require an explanation of any apparent inconsistency with the necessary elements of an ADA claim." Id. Unlike the plaintiff in Cleveland, Feldman failed to offer any explanation for the contradiction between her SSDI and ADA statements. We therefore will affirm the district court's grant of summary judgment

Silk v. City of Chicago, 194 F.3d 788 (1999)

Pond v. Michelin North America, Inc., 183 F.3d 592 (1999)  The central question in this case is whether the "reasonable accommodation" requirement under the Americans with Disabilities Act ("ADA"), 42 U.S.C. sec. 12101 et seq., requires an employer to transfer an employee to an occupied position that the disabled employee has a right to acquire under the provisions of a collective bargaining agreement. The district court concluded the ADA contains no such requirement and granted summary judgment for defendant Michelin North America, Inc. ("Michelin"). We affirm.

Murphy v. ITT Educational Services, Inc., 176 F.3d 934 (1999)  However, Cozad, in assessing plaintiff's attendance record, could and did reasonably decide as a matter of good business judgment, even considering plaintiff to be otherwise qualified, that plaintiff's attendance habits might not sufficiently adjust to the strict requirements of the outside sales representative position, and, in any event, did not merit the promotion. The Institute did not need to knowingly assume the risk of getting itself into a similar "erratic absences" situation like that from which the employer escaped in Waggoner.   The district court gave all plaintiff's claims careful consideration before granting the Institute summary judgment. A genuine issue of material fact requires more than a showing of "some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586 (citations omitted). It cannot be said in the circumstances of this case that the record taken as a whole could possibly lead a rational trier of fact to find some genuine factual issue for trial. See id. at 587 (citation omitted). We find no fault with the district court's entry of summary judgment for the Institute in declining to substitute its business judgment for the nondiscriminatory business judgment of the Institute.

Koshinski v. Decatur Foundry, Inc., 177 F.3d 599 (1999)  Koshinski wanted to go back to work despite the pain and the harm he would cause himself-- understandable, given that the foundry paid him twice the hourly wage he was able to earn from subsequent employers. He argues that the foundry should have allowed him to go back to work even if it meant that he would suffer considerable pain and cause his condition to worsen. That a person may cause a direct threat to himself, he argues, is of no consequence under the ADA. Kohnke v. Delta Airlines, Inc., 932 F. Supp. 1110, 1111-12 (N.D. Ill. 1996), in which the district court held that the "direct threat" language in the ADA refers to direct threats to other individuals, not to the disabled person himself, supports his position. But see 29 C.F.R. sec. 1630.2(r) ("Direct Threat means a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.") (emphasis added). The "direct threat" issue arises, however, only after an ADA plaintiff has made out a prima facie case, as an employer's defense to the challenged adverse employment decision. See 42 U.S.C. sec. 12113(b). Because Koshinski cannot show that he was entitled to protection under the ADA, we do not reach the question of whether the foundry had a valid defense for refusing to reinstate him.

Sanchez v. Henderson, 188 F.3d 740 (1999)  Sanchez does not allege that Holman mis- perceived him as limited generally in the work he could perform for the USPS, see Johnson v. American Chamber of Commerce Publications, 108 F.3d 818 (7th Cir. 1997) (holding that impairment need not actually be substantially limiting so long as it is perceived by employer to be), and it is undisputed that Holman knew Sanchez could perform other tasks like sorting mail or answering telephones. See Baulos v. Roadway Express, Inc., 139 F.3d 1147, 1151 (7th Cir. 1998). If, as Sanchez implicitly concedes, his inability to resume letter carrying does not amount to a substantial impairment under the Act, the USPS's accurate perception of that same inability would not trigger the Act's protections; the plaintiff must be regarded as having a substantial impairment, not just any impairment. See Hamm v. Runyon, 51 F.3d 721, 724 (7th Cir. 1995) (citing 29 C.F.R. sec.1613.702(e)); see also Chandler v. City of Dallas, 2 F.3d 1385 (5th Cir. 1993) (employer's belief that employee is unable to perform one task safely does not by itself establish that employer regarded employee as having substantial limitation of his ability to work in general so as to render employee "disabled" under Rehabilitation Act); Welsh v. City of Tulsa, 977 F.2d 1415, 1417-18 (10th Cir. 1992) (holding that an impairment that an employer regards as limiting an individual's ability to perform only one job is not a handicap under the Rehabilitation Act)./2 Sanchez has simply not shown that the USPS regarded him as substantially impaired, and he has thus failed to establish a disability under the Act. Baulos, 139 F.3d at 1152; see Christian v. St. Anthony Med. Ctr., Inc., 117 F.3d 1051, 1053 (7th Cir. 1997); Hamm, 51 F.3d at 725. We therefore agree with the district court that the USPS is entitled to summary judgment on this claim.

Waggoner v. Olin Corp., 169 F.3d 481 (1999).  We said in Haschmann that a business "was not obligated to tolerate erratic, unreliable attendance or to provide an accommodation which would impose an undue hardship on the business." At 601. Waggoner did not indicate that she was requesting a leave so that she would have time to refine the dosage of her medication so that she could return to work on a regular basis. All she said on the subject at her discharge hearing was, "I just want to know if I'm employed here or not." She simply wanted to miss work whenever she felt she needed to and apparently for so long as she felt she needed to. As a matter of law, that request in this context was not reasonable, and accordingly the judgment of the district court is AFFIRMED

Foster v. Anderson,   168 F.3d 1029   (1999)  we focus on Foster's specific allegations. She points to Jones' inquiry, upon seeing Foster's hand splint, of whether Foster had carpal tunnel syndrome. Foster told her "no," she had tendinitis. A month later (the day before Foster was terminated) when she arrived late for work, Foster presented a doctor's recommendation that she be placed on light typing duty. Foster cites these incidents as reasons why Andersen reacted to her disability and fired her. The district court considered these facts in conjunction with Andersen's longstanding complaints about Foster's performance. It also considered Foster's admission that she was on final warning status and had recently been warned that a single misstep would result in termination. Despite these warnings, Foster readily admits that she was late for work and that she violated Andersen's policies by failing to inform Andersen of her tardiness within thirty minutes of her scheduled start time. Considering all of the evidence, the district court reasonably found that Foster failed to create a triable issue concerning whether her request for an accommodation was a factor that motivated Andersen to terminate her. In short, the court determined that her termination did not occur "because of" her disability

Chapa v. Adams,   F.3d   (1999)  The "otherwise qualified" phrase, which also appears in the ADA, supplied the foundation of our conclusion in Palmer that, although paranoia is a "disability," a person whose disability disposes him to violent outbursts is not "otherwise qualified" for employment; an employer need not "accommodate" the disability by hiring guards to watch its workforce. Just so here. Rush Anchor was entitled to establish a program for mild-mannered drug abusers, and people who threaten to kill their supervisors are not "qualified" for such a program even if their threats are hollow. Substance-abuse programs often try to help participants control their anger; an inability to deal with participants whose anger is out of control would send the wrong message to others. Chapa had for some time been insistent that he did not have to follow the program's rules--that he knew better than Fletcher how to deal with his problems. Fletcher was legally entitled to treat the threat as the last straw, and to conclude that Chapa was no longer qualified for the Rush Anchor program.

Duncan v. State Dept. of Health & Family Services, 166 F.3d 980 (1999).  We agree with the district court that Duncan failed to present evidence that would have justified a jury's finding that he was perceived to suffer from a "disability" within the meaning of the two laws. Furthermore, even if Duncan's propensity to lose his temper counted as a statutory disability, our decision in Palmer v. Circuit Court of Cook County, 117 F.3d 351 (7th Cir. 1997), suggests that the ADA and Rehabilitation Act claims would founder on the qualifications requirement. We therefore have no occasion to reach the defendants' alternative arguments in support of the judgment, including their assertion that Duncan could prevail only if he could show that his perceived disability was the sole reason he was terminated as opposed to a "but for" cause.

Flowers v. Komatsu Min. Systems, Inc., 165 F.3d 554 (1999).  For a number of reasons, we find that to award back pay to Flowers for the entire period from his termination to the trial was an abuse of discretion. Clearly, there are times when Flowers could not work, with or without an accommodation. The most obvious is the time following his surgery (a lumbar laminectomy and spinal fusion) in May 1994. Flowers' own physician, Dr. Patrick Tracy, while he testified that at some point Flowers could have returned to work, did not indicate that Flowers was able to work as of October 1994, apparently the last time he saw him. In addition, there were other surgeries as well. These events must be considered in fashioning a proper back-pay award. Also guiding the court's discretion, as part of the evidence, should be the fact that Flowers received disability benefits from the Social Security Administration. The court can consider statements made on the applications for benefits and doctors' representations in support of the applications, keeping in mind that the ultimate issue is whether during the relevant period of time for which back pay is sought Flowers could have performed his duties at Komatsu, with or without an accommodation. By way of illustration only, after these factors are considered, it may be that the judge would find that Flowers was able to work at Komatsu for, say, 20 of the 40- plus months between his discharge and the trial. He would, of course, then be entitled to back pay for only those 20 months.

Baert v. Euclid Beverage, Ltd., 149 F.3d 626 (1998).  Gary Baert, a truck driver who lost his job when he was diagnosed with insulin-dependent diabetes, sued his employer under the Americans With Disabilities Act for failing to reasonably accommodate him. The district court granted summary judgment in favor of the defendant, finding that Baert was not a "qualified individual" as defined by the ADA. Although we agree that Baert was no longer qualified for his job as a truck driver due to federal and state laws which prohibited him from holding a commercial driver's license, we reverse because he may have been a qualified individual with respect to other positions which the employer could have offered as a reasonable accommodation.

Talanda v. KFC Nat. Management Co., 140 F.3d 1090 (1998).  Mr. Talanda has failed to demonstrate the reasonableness of his belief that Overly's demand was evidence that she regarded and treated Bellson as having an impairment which limited Bellson's major life activity of working. Indeed, the record does not show that Mr. Talanda tried to ascertain, in any reasonable way, whether Overly's order violated the ADA. Nor did Mr. Talanda inform Overly or Malloy that he was refusing to move Bellson in order to protect her from Overly's discriminatory activity. Therefore, KFC's firing of Mr. Talanda for his refusal to move Bellson was not a discriminatory act against Mr. Talanda and was not protected under the ADA.

Baulos v. Roadway Exp., Inc., 139 F.3d 1147 (1998).  Plaintiffs neither had an impairment that substantially limited their ability to perform the major life activity of working nor were regarded as having such an impairment by Roadway. The record does not support a finding that plaintiffs' impairment of driving sleeper trucks would disqualify them from most other truck driving positions (class of jobs). Baulos and Schneider were merely unable to perform the particular position at Roadway that entailed driving sleeper trucks. Additionally, the majority of truck drivers assigned to sleeper duty had difficulty getting sufficient rest, as would most members of the general public. Having reached this determination we need not consider the additional grounds suggested by Roadway for affirming the judgment of the district court.

Davidson v. Midelfort Clinic, Ltd., 133 F3d 499 (1998).  The Midelfort Clinic in Eau Claire, Wisconsin terminated Barbara Davidson from her position as a psychotherapist, citing among her principal deficiencies her backlog of dictation. Davidson filed suit under the Americans with Disabilities Act, contending that as a result of Adult Residual Attention Deficit Hyperactivity Disorder ("ADD"), she has a "disability" as the ADA defines that term and that Midelfort refused to reasonably accommodate that disability. See 42 U.S.C. sec. 12112(b)(5)(A). She also claimed that Midelfort discharged her in retaliation for filing a claim of discrimination with the EEOC. See 42 U.S.C. sec.12203(a). The district court entered summary judgment in favor of Midelfort. Because we conclude that Davidson has presented sufficient evidence that she has a "record" of a substantially limiting impairment, we reverse the judgment in part and remand for further proceedings. We otherwise affirm the judgment below on the disability claim for lack of evidence that Davidson presently has a substantially limiting impairment resulting from ADD or that Midelfort regarded her as having such an impairment. Because Davidson has not identified sufficient evidence of a causal link between the filing of her original charge of discrimination and her subsequent termination, we also affirm the entry of summary judgment on the retaliation claim.

Van Stan v. Fancy Colours & Co., 125 F.3d 563 (1997).  Thus, the jury's verdict in favor of Van Stan on his emotional distress claim is not per se inconsistent with its finding that Fancy Colours had not violated the ADA. Contrary to Van Stan's assertions, even if the jury concluded that Fancy Colours had fired Van Stan because he requested that his workload be reduced and that Fancy Colours had lied to him about its reasons for firing him, that would not compel the jury to find in his favor on the ADA claim. Instead, the jury could have concluded that Van Stan failed to establish other elements of his claim. For example, based on the evidence presented at trial, a reasonable jury could have concluded that Van Stan was not disabled within the meaning of the ADA. Both Van Stan and his expert testified that Van Stan's disorder did not affect his ability to perform his duties as a warehouse manager. Likewise, both testified that the disorder did not affect his ability to walk, talk, see, hear, speak or communicate. Thus, a reasonable jury could have concluded that Van Stan's disorder did not substantially limit a major life activity and, hence, that Van Stan was not disabled. Mackie v. Runyon, 804 F. Supp. 1508, 1510-11 (M.D. Fla. 1992) (plaintiff who controlled her bipolar disorder with medication was not handicapped under the Rehabilitation Act because her disorder did not limit her major life activities).

Sieberns v. Wal-Mart Stores, Inc., 125 F.3d 1019 (1997).

Uhl v. Zalk Josephs Fabricators, Inc., 121 F.3d 1133 (1997). The undisputed evidence shows nothing from which a jury could find a causal connection between Uhl's demotion and any perception by Zalk that he was disabled.

Johnson v. American Chamber of Commerce Publishers, Inc., 108 F.3d 818 (1997). Congress could have written the statute so that the presence of some kind of objectively-ascertainable condi- tion serves as a filter. An objective threshold might help the courts to discard implausible claims without the need for costly discovery. Yet no benefit comes free of cost, and a screening device of this kind is not in the package of rights and obligations Congress enacted. If for no reason whatsoever an employer regards a person as dis- abled--if, for example, because of a blunder in reading medical records it imputes to him a heart condition he has never had--and takes adverse action, it has violated the statute unless some other portion of the law affords it a defense. The statute forbids "discrimination against '[a] person who has a record of, or is regarded as having, an impairment [but who] may at present have no actual incapacity at all.' " School Board of Nassau County v. Arline, 480 U.S. 273, 279 (1987), quoting from South- eastern Community College v. Davis, 442 U.S. 397, 405-06 n.6 (1979). Other courts of appeals have said or held that the plaintiff need not establish any actual impairment to found a claim on sec. 1202(2)(C). E.g., Harris v. H&W Contracting Co., 102 F.3d 516, 523 (11th Cir. 1996); MacDonald v. Delta Air Lines, Inc., 94 F.3d 1437, 1443 (10th Cir. 1996); Bridges v. Bossier, 92 F.3d 329, 332 (5th Cir. 1996); Katz v. City Metal Co., 87 F.3d 26, 33 (1st Cir. 1996). Katz reversed a decision similar to the district court's treatment of Johnson's complaint. We do likewise; unlike Johnson, the Americans with Disabilities Act has teeth.

Grzan v. Charter Hosp. of Northwest Indiana, 104 F.3d 116 (1997).  here Grzan alleges only mistreatment by Greer. Grzan complains that she received treatment different from that received by other handicapped persons accepted into Charter's treatment program not because of any institutional policy but because of the aberrant conduct of one of Charter's counselors. In essence, Grzan alleges malpractice. Grzan's complaint fails because section 504 does not provide a federal malpractice tort remedy. Section 504 is materially identical to the Americans With Disabilities Act, 42 U.S.C. sec. sec. 12101 et seq. ("ADA"), which we recently held did not provide a remedy for medical malpractice. See Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir. 1996) ("it would be extremely odd to suppose that disabled persons whose disability is treated negligently have a federal malpractice claim by virtue of the Americans With Disabilities Act, whereas a sick or injured but not disabled person-- a person suffering from an acute viral infection, perhaps, or who has broken his leg, or who has a hernia or an inflamed gall bladder--must be content with the remedy that the state law of medical malpractice provides").

Knapp v. Northwestern University, 101 F.3d 473 (1996).  In closing, we wish to make clear that we are not saying Northwestern's decision necessarily is the right decision. We say only that it is not an illegal one under the Rehabilitation Act. On the same facts, another team physician at another university, reviewing the same medical history, physical evaluation, and medical recommendations, might reasonably decide that Knapp met the physical qualifications for playing on an intercollegiate basketball team. Simply put, all universities need not evaluate risk the same way. What we say in this case is that if substantial evidence supports the decision-maker--here Northwestern-- that decision must be respected

Gile v. United Airlines, Inc., 95 F.3d 492 (1996).  Cheryl Gile sued United Airlines, Inc., alleging that United discriminated against her in violation of the Americans with Disabilities Act when it failed to reassign her to a position on the day or afternoon shift after her disability made her unable to work on the night shift. In discovery, Gile requested documents pertaining to all United job vacancies in the Chicago metropolitan area. The district court limited her request to vacancies for the same position in the department where she had worked and to positions to which she had previously requested transfer. The district court subsequently granted summary judgment in favor of United on the ground that United could not possibly have reasonably accommodated Gile because Gile could not show that there was a suitable vacant position to which United could have transferred her. Gile appeals the discovery order and the grant of summary judgment. Because we find that the district judge imposed an overly narrow restriction on the scope of Gile's document request, we vacate the judgment and remand the case for further discovery

Homeyer v. Applause, Inc., 90 F.3d 1477 (1996).  In the cases primarily relied upon by the district court, the conclusion that the plaintiff's employment was not limited generally was reached only after an analysis of specific evidence on a motion for summary judgment or following a trial. See id. (jury trial); Gupton, 14 F.3d 203 (bench trial); Roth, 57 F.3d 1446 (preliminary injunction hearing); Hamm, 51 F.3d 721 (summary judgment); Daley v. Koch, 892 F.2d 212 (2d Cir. 1989) (summary judgment). Following discovery, we surmise that Homeyer's claim may well be susceptible to a motion for summary judgment on the same grounds. It is our judgment that a motion to dismiss was simply the wrong vehicle for a disability determination in this case. In sum, although we suspect it will be very difficult for Homeyer to establish that her major life function of working is substantially limited, we cannot say beyond a doubt that Homeyer, if given an opportunity to submit evidence, would not be able to support her claim that her ability to find work as a typist generally is substantially limited by her respiratory condition.

Bryant v. Madigan, 84 F.3d 246 (1996).  His complaint is that he was not given special ac- commodation. Unlike the prisoner plaintiffs in Love v. McBride, 896 F. Supp. 808 (N.D. Ind. 1995), or Donnell v. Illinois State Bd. of Education, 829 F. Supp. 1016, 1020 (N.D. Ill. 1993), he is not complaining of being excluded from some prison service, program, or activity, for example an exercise program that his paraplegia would prevent him from taking part in without some modification of the program. He is complaining about incompetent treatment of his paraplegia. The ADA does not create a remedy for medical malpractice.

Roth v. Lutheran General Hosp., 57 F.3d 1446 (1995).  The Rehabilitation Act and the Americans with Disabilities Act are important legislation that seek to integrate dis- abled individuals into the economic and social mainstream, and to ensure that the truly disabled will not face dis- crimination because of stereotypes or their insurmountable impairments. See 29 U.S.C. sec. 701; S. REP. NO. 116, 101st Cong., 1st Sess. 2 (1989). However, there is a clear bright line of demarcation between extending the statutory pro- tection to a truly disabled individual (so that he or she can lead a normal life, see McWright v. Alexander, 982 F.2d 222, 227 (7th Cir. 1992)) and allowing an individual with marginal impairment to use disability laws as bar- gaining chips to gain a competitive advantage. The district court's evaluation that Dr. Roth fell on the wrong side of the line is well-supported in this record, and the district court's ruling under the circumstances cannot be consid- ered clearly erroneous. There is no abuse of discretion. The judgment of the district court denying the plaintiff's request for a preliminary injunction is AFFIRMED

Hamm v. Runyon, 51 F.3d 721 (1995).

Johnson v. Runyon, 47 F.3d 911 (1995).

U.S. v. Village of Palatine, Ill., 37 F.3d 1230 (1994).

McWright v. Alexander, 982 F.2d 222 (1992).

Byrne v. Board of Educ., School of West Allis-West Milwaukee, 979 F.2d 560 (1992).

Carter v. Casa Cent., 849 F.2d 1048 (1988).

Anderson v. University of Wisconsin, 841 F.2d 737 (1988).

Adashunas v. Negley, 626 F.2d 600 (1980).