Ricardo Delgado v. Certified Grocers Midwest, Inc.

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued June 11, 2008
Decided June 23, 2008
Before
DANIEL A. MANION, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 07‐3140
RICARDO DELGADO,
Plaintiff‐Appellant,
v.
CERTIFIED GROCERS MIDWEST, INC.
Defendant‐Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern
Division.
No. 06 C 2107
Charles P. Kocoras,
Judge.
O R D E R
Ricardo Delgado sued Certified Grocers Midwest (Certified) alleging discrimination
on the basis of a disability in violation of the Americans With Disabilities Act of 1990
(ADA), 42 U.S.C. §§ 12101‐12213, when he was fired after being injured on the job. The
district court granted the defendant’s motion for summary judgment. Because Delgado has
failed to show that he is disabled under ADA, we affirm.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance
with Fed. R. App. P. 32.1

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Delgado, who is 41 years old and has a sixth‐grade education, began working as a
“warehouse picker” at Certified in August 2000. This job required that Delgado work in
refrigerated areas of the warehouse, and his job duties included manually lifting and
carrying items between 1 and 100 pounds taken from bins located 5 inches to 6 feet off the
floor. Throughout Delgado’s employment, he was a member of a local union and was
subject to the collective bargaining agreement between the union and Certified. In
November 2001 Delgado injured his shoulder at work and was taken to the hospital by
ambulance. Over the next 3 ½ years, Certified provided him with several leaves of absence
and at other times allowed him to work in “light‐duty” jobs. Light‐duty jobs are temporary
jobs created by an employee’s supervisor to provide meaningful work within an employee’s
restrictions during the employee’s rehabilitation period. When Delgado first returned to
work, he performed a light‐duty job for 8 weeks, but when that period ended in February
2002, instead of returning to his regular job he again took a leave of absence because of his
injury. This time Delgado did not return to work until 8 months later, when his physician
gave him clearance to work without restrictions.
In June 2003 Delgado reinjured his shoulder at work. Nevertheless, over the next
two months he continued to work without restrictions while he sought treatment from
doctors. In August 2003, however, Delgado’s physician again limited him to light‐duty
work with lifting restrictions for three months. In January 2004 Delgado had surgery on his
shoulder and took another leave of absence until May 2004, when he returned to light duty
for 7 months. During this light‐duty period, Delgado’s physician reduced his medical
restrictions, allowing him lift 100 pounds so long as he did not lift objects above his head.
Delgado continued to perform light‐duty work until November 2004, when Certified placed
him on a leave of absence after his physician diagnosed him with Carpal Tunnel Syndrome.
Soon thereafter, Delgado’s physician determined that his injuries would not improve and
imposed permanent restrictions that limited him to lifting no more than 50 pounds on
occasion and frequently lifting or carrying no more than 25 pounds. Delgado’s physician
also instructed him to avoid working in chilled environments.
Delgado attempted to return to work in April 2005 and gave Certified a note from
his doctor documenting his permanent restrictions. Because Delgado could no longer
perform his duties as a warehouse picker, Certified fired him. Delgado did not request that
Certified provide him with accommodations that would permit him to do his job, nor did
he apply for any other jobs at Certified.
Certified did not have any permanent jobs under the jurisdiction of Delgado’s local
bargaining unit that he could perform with his physical limitations, and the union does not
allow employees to shift outside of their local unit. Since leaving his job at Certified,
Delgado has had only one job, which Certified helped him find by providing him with

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No. 07‐3140 Page 3
vocational training, but he left that job because he was not paid on time and because he was
required to work beyond his restrictions. His vocational counselor advised him not to
mention his work restrictions in job applications and suggested that Delgado discuss his
injury in interviews instead. Delgado has received several job offers since then, including
an offer to be a forklift driver and two offers to be a baggage handler. But in each case,
Delgado failed to notify his would‐be employers of his work restrictions. Furthermore, he
did not show up for work because he presumed that the jobs would require labor outside
his work restrictions.
Delgado then timely filed suit against Certified, alleging that it fired him to avoid its
obligation under the ADA to accommodate his disabilities. Certified moved for summary
judgment. As part of his response to Certified’s motion, Delgado submitted two unusual
exhibits. First, he submitted an affidavit from his attorney (he had a different attorney on
appeal) describing her “admittedly highly unscientific” internet job search to determine if
Delgado’s work restrictions significantly hindered his ability to find work, although she did
not appear to draw any conclusions from her “study.” Appended to this affidavit were 50
pages of internet search results and job descriptions. In addition, Delgado submitted over
150 pages of job applications, fax cover sheets, drug test forms, and response letters from
employers, presumably meant to illustrate the extent of his thwarted job search after leaving
Certified.
The district court granted Certified’s motion for summary judgment. The court
found that Delgado had not presented evidence that his physical impairments excluded him
from a broad class of jobs and that he therefore was not disabled under the ADA. The
court reasoned that Delgado’s job offers contradicted his “bare assertions” that his work
restrictions prevented him from seeking employment. Moreover, the court noted that
Delgado had provided no evidence suggesting that he was ever turned down for a job
based on his work restrictions. The court next rejected trial counsel’s affidavit as
inadmissible scientific evidence under Federal Rule of Evidence 702. The court also found
that Delgado had presented no evidence that Certified regarded him as disabled and
observed that Certified’s actions did not evidence a general belief that Delgado was unable
to work at a broad class of jobs. The court concluded that because Delgado admitted that
his restrictions precluded him from performing the essential functions of his job—and that
no accommodation exists that would allow him to perform those functions—he is not a
“qualified individual” under the ADA.
On appeal Delgado argues that he was terminated because he was disabled, that
Certified regarded him as disabled, and that Certified could have accommodated his
disability by transferring him to a different position. To avoid summary judgment, Delgado
must show that there is a genuine issue of material fact regarding whether he is a “qualified

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No. 07‐3140 Page 4
individual with a disability” under the ADA. See Kupstas v. City of Greenwood, 398 F.3d 609,
611 (7th Cir. 2005). According to the ADA, a disability is “‘(A) a physical or mental
impairment that substantially limits one or more of the major life activities of [the]
individual; (B) a record of such impairment; or (C) being regarded as having such an
impairment.’” Squibb v. Mem’l Med. Ctr., 497 F.3d 775, 781 (7th Cir. 2007) (brackets in
original) (quoting 42 U.S.C. § 12102(2)). In short, Delgado must present evidence that he
was disabled under one or more of these definitions and that he was qualified to perform
the essential functions of his job with or without reasonable accommodations. See id.; see
also EEOC v. Sears, Roebuck & Co., 417 F.3d at 789, 796‐97 (7th Cir. 2005).
Delgado argues that there is a genuine issue of material fact regarding whether his
injury “substantially limits” the major life activity of being able to work. Delgado contends
that he “is obviously precluded from virtually any heavy or manual labor job” based on his
work restrictions and claims that his job options are limited because of his age and
education. Delgado maintains that the classified advertisements, cover letters, drug tests,
and job applications that he submitted were evidence of his restricted ability to perform a
broad class of jobs because “presumably” his lack of job offers was a result of his physical
impairments. The job offers that he did receive are of no consequence, Delgado argues,
because he was “forced to conceal his injuries in order to attempt to obtain employment, as
recommended by his vocational counselor,” and so his potential employers were unaware
of his work restrictions.
When a plaintiff claims that he is “substantially limited” in the major life activity of
working, he must show that he is “‘significantly restricted in the ability to perform either a
class of jobs or a broad range of jobs in various classes as compared to the average person
having comparable training, skills, and abilities.’” Kupstas, 398 F.3d at 612 (quoting 29
C.F.R. § 1630.2(j)(3)(i)). The injury must limit employment generally, not merely preclude
an employee from a particular job or a narrow range of jobs. Id. at 613. In general, a
claimant must present “some evidence of the number and types of other jobs in the
geographical region, from which he would be excluded because of his perceived
impairments.” Id. at 613 (internal quotation marks and citation omitted). The requirement
to show evidence of general employment demographics, however, is not a per se rule, and
in rare cases claimants’ “impairments are so severe that their substantial foreclosure from
the job market is obvious.” EEOC v. Rockwell Int’l Corp., 243 F.3d 1012, 1017 (7th Cir. 2001).
Delgado cites DePaoli v. Abbott Labs., 140 F.3d 668 (7th Cir. 1998), Best v. Shell Oil Co.,
107 F.3d 544 (7th Cir. 1997), and Cochrum v. Old Ben Coal Co., 102 F.3d 908 (7th Cir. 1996), to
support his contention that this case is one of those rare cases in which his physical
limitations alone, without any further evidence of what jobs might be available to him, are
sufficient to show that he is precluded from performing any manual labor jobs. In DePaoli,

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No. 07‐3140 Page 5
we concluded that an assembly line worker who could not perform repetitive motions with
her right hand because she had tendinitis could establish that she was disabled because this
impairment alone was evidence that she could not perform any assembly line work.
DePaoli, 140 F.3d at 673. In Best, we held that evidence of a truck driver’s knee injury, which
precluded him from driving, was sufficient to overcome summary judgment on the
question whether he was disabled under the ADA. Best, 107 F.3d at 548. And in Cochrum,
we held that a coal miner’s shoulder injury, which prevented him from performing
overhead work, heavy lifting or pulling, and pushing out from his body, might preclude
him from performing a broad range of jobs and that “given the breadth of his physician’s
physical restrictions, a reasonable jury could conclude that Cochrum’s shoulder impairment
does substantially limit his ability to work.” Cochrum, 102 F.3d at 911.
Delgado’s restrictions, however, are not nearly as broad as those of the plaintiffs in
DePaoli, Best, and Cochrum. More importantly, his impairments are not so severe that his
“substantial foreclosure” from the job market is obvious. Delgado is significantly more able
than the plaintiffs in the cases he cites because he can continue to lift up to 50 pounds on
occasion and up to 25 pounds continuously. In Contreras v. Suncast Corp., 237 F.3d 756, 763
(7th Cir. 2001), we held that a forklift operator who was unable to lift more than 45 pounds,
unable to engage in strenuous work, and unable to drive a forklift for more than four hours
a day had not “presented evidence that even hints at the notion that he is precluded from a
broad class of jobs.” In that case, we specifically distinguished DePaoli, Best, and Cochrum,
observing that the “breadth of the restrictions placed on plaintiffs and their doctors’
recommendations concerning how their respective injuries would affect their ability to
obtain other employment” far exceeded the restriction placed on Contreras. Id. at 763 n.5.
Delgado’s inability to lift more than 50 pounds does not support his assertion that he is
“obviously precluded from virtually any heavy or manual labor job, ”particularly given the
dearth of evidence documenting the requirements of typical manual‐labor jobs. See Peters v.
City of Mauston, 311 F.3d 835, 844 (7th Cir. 2005); see also Squibb, 497 F.3d at 783.
Delgado’s job search further undermines his claim that he is substantially restricted
from a broad class of jobs. Delgado received several job offers that he chose to disregard
because he presumed that the jobs would exceed his restrictions, although there is no
evidence showing that Delgado’s assumption was correct. Delgado suggests that because
the employers who offered him jobs did not know of his physical impairments, we should
make the negative inference that the many employers who rejected his job applications did
so only because they were aware of his physical impairments. This is nonsensical, purely
speculative, and particularly unpersuasive considering that it was Delgado’s decision not to
inform potential employers of his impairments. Despite scores of pages of exhibits,
Delgado has presented no evidence that his failure to obtain a job was the result of his
injury.

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Delgado also argues that he is disabled under the ADA because Certified regarded
him as disabled. This argument hangs on an even thinner reed. Delgado maintains that the
fact that he was fired after being placed on permanent lifting restrictions is sufficient
evidence that Certified regarded him as disabled. But the evidence in the record shows only
that Certified fired Delgado because he could no longer perform his specific job as a
warehouse picker. It is unclear how the circumstance of Delgado’s termination, in itself,
could be evidence that Certified regarded him as unable to work in a broad class of jobs. See
Kupstas, 398 F.3d at 613. At most, Delgado’s termination demonstrates only that Certified
regarded him as unable to work in the specific job of warehouse picker. Cf. id. at 612. This
is insufficient to show discrimination. Id. at 614‐15; Toyota Motor Mfg., Ky., Inc. v. Williams,
534 U.S. 184, 200 (2002). Delgado has failed to present any other evidence that he was
disabled under the ADA, and thus his claim must fail.
Moreover, even if Delgado were able to demonstrate that he is disabled, he has failed
to show that there is a genuine issue of material fact regarding whether he is a “qualified
individual with a disability” under the ADA. A qualified individual with a disability is
“‘an individual with a disability who, with or without reasonable accommodation, can
perform the essential functions’” of the job that he has or desires. Sears, Roebuck & Co., 417
F.3d at 797 (quoting 42 U.S.C. § 12111(8)). The ADA requires that an employer make
“‘reasonable accommodations’ to a disabled qualified employee’s limitations, unless the
employer can demonstrate that to do so would impose an ‘undue hardship.’” Id. at 802
(quoting 42 U.S.C. § 12112(b)(5)(A)). The burden is on the plaintiff to show that there is a
vacant position for which he is qualified, and only then may we consider whether the
failure to provide an accommodation was caused by a flaw in the interactive process.
Jackson v. City of Chicago, 414 F.3d 806, 813 (7th Cir. 2005).
The parties do not dispute that Delgado’s work restrictions prevented him from
working in the refrigerated warehouse. But Delgado has failed to submit evidence that
there was any reasonable way for Certified to accommodate that restriction, nor does he
point to any available positions for which he was qualified. Delgado maintains that
Certified should have accommodated his disability by transferring him to a permanent
light‐duty position. He contends that the fact that Certified allowed him to perform light‐
duty work for more than eight weeks “calls into question the temporary nature of light duty
work.” Although it is true that Certified permitted Delgado to remain on light duty for
longer than the eight‐week maximum specified in the collective bargaining agreement, this
is not enough to “call into question” the temporary status of light‐duty work, nor should
Certified be punished for maintaining a flexible rehabilitation program. The undisputed
evidence shows that Certified often allowed its employees to remain on light duty as long as
they were reasonably expected to fully recuperate. The record also shows that no

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1 Delgado suggests that the merger of two local unions made jobs available that he
could have worked. There is no evidence in the record, however, suggesting that such a
merger would expand the universe of jobs available to Delgado, that Delgado was qualified
for any jobs covered by the merged bargaining unit, or that any vacancies existed for any
jobs covered by that bargaining unit.
permanent light‐duty positions existed at Certified. The ADA does not require Certified to
create a job for Delgado or permanently assign him to light‐duty work. See Watson v.
Lithonia Lighting, 304 F.3d 749, 752 (7th Cir. 2002). 1 Therefore, Delgado has failed to meet his
burden to show that Certified could have made reasonable accommodations.
Because Delgado has failed to show that he is disabled under the ADA, we AFFIRM
the judgment of the district court.

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