EEOC & Keane v. Sears, Roebuck & Co. (7th Cir.) Reply brief Feb. 25, 2005 No. 04-2493 (Consolidated with No. 04-2222) __________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT __________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, and JUDITH KEANE, Plaintiff-Intervenor, v. SEARS, ROEBUCK & CO., Defendant-Appellee. __________________________________________________ On Appeal from the United States District Court for the Northern District of Illinois, Eastern Division Hon. Charles R. Norgle, Sr., Judge ________________________________________________________ REPLY BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT ________________________________________________________ ERIC S. DREIBAND EQUAL EMPLOYMENT General Counsel OPPORTUNITY COMMISSION Office of General Counsel CAROLYN L. WHEELER 1801 L Street, NW, Room 7034 Acting Associate General Counsel Washington, DC 20507 (202) 663-4055 GAIL S. COLEMAN Attorney TABLE OF CONTENTS Table of Authorities . . . . . . . . . . . . . . . . . . . . . ii Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 A. This Court now recognizes that Toyota Motor Manufacturing, Kentucky, Inc. v. Willams is consistent with the EEOC's regulations . . . . . . . .3 B. Sears seeks to treat this Court's decision in Keane I as a mere advisory opinion . . . . . . . . . .5 C. Sears ignores or misstates evidence from which a reasonable jury could find for the plaintiffs . . . .6 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Addendum Certificate of Service TABLE OF AUTHORITIES Ammons v. Aramark Unif. Servs., Inc., 368 F.3d 809 (7th Cir. 2004) . . . . . . . . . . . . . . .9 Anderson v. Liberty Lobby, Inc., 474 U.S. 242 (1986) . . . . . .7 EEOC v. Sears, Roebuck & Co. ("Keane I"), 233 F.3d 432 (7th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . .5 Gile v. United Airlines, Inc., 213 F.3d 365 (7th Cir. 2000) . .9 Hendricks-Robinson v. Excel Corp., 154 F.3d 685 (7th Cir. 1998) 10 Kupstas v. City of Greenwood, ___ F.3d ___, No. 04-2081, 2005 WL 352428 (7th Cir. Feb. 15, 2005) . . . . . . . . .3-5 Payne v. Pauley, 337 F.3d 767 (7th Cir. 2003) . . . . . . . . .6 Planned Parenthood Ass'n v. Kempiners, 700 F.2d 1115 (7th Cir. 1983) . . . . . . . . . . . . . . .6 Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184 (2002) . . . . . . . . . . . . . . . . . . .2-5 No. 04-2493 (Consolidated with No. 04-2222) __________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT __________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, and JUDITH KEANE, Plaintiff-Intervenor, v. SEARS, ROEBUCK & CO., Defendant-Appellee. __________________________________________________ On Appeal from the United States District Court for the Northern District of Illinois, Eastern Division Hon. Charles R. Norgle, Sr., Judge ________________________________________________________ REPLY BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT ________________________________________________________ ARGUMENT In its opening brief, the EEOC urged this Court to reverse the district court's award of summary judgment to Sears. The EEOC argued that this Court's limited remand in Keane I did not permit the district court to entertain another summary judgment motion regarding the question of whether Keane was disabled. EEOC Br. at 32. The EEOC further argued that there had been no intervening change in the law that would permit the district court to revisit this issue. Id. at 27-32. The EEOC concluded that whether or not there had been a change in the law, a reasonable jury could find that Keane was disabled and that Sears had violated its obligations to her under the Americans with Disabilities Act ("ADA"). Id. at 33- 49. In its responsive brief, Sears argues that the district court correctly reopened the question of Keane's disability. Sears argues, first, that the Supreme Court's opinion in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), changed the standard for proving a "substantial limitation" under the ADA. Sears Br. at 13-14. Sears also argues that the district court properly invited new submissions regarding Keane's disability in order to address the concerns articulated by this Court. Id. at 12-13. Finally, Sears argues that Keane was not disabled and, even if she was, that there is no material dispute of fact regarding its compliance with the ADA. Id. at 14-26. For the reasons stated here and in the EEOC's opening brief, the EEOC asks this Court to reject Sears' arguments and to reverse the district court's judgment. A. This Court now recognizes that Toyota Motor Manufacturing, Kentucky, Inc. v. Willams is consistent with the EEOC's regulations. After the parties filed opening briefs in this case, this Court issued an opinion strongly favoring the EEOC's interpretation of Toyota. See EEOC Br. at 27-32 (interpreting Toyota consistently with EEOC regulations that define "substantially limited" as meaning "significantly restricted"). In Kupstas v. City of Greenwood, ___ F.3d ___, No. 04-2081, 2005 WL 352428 (7th Cir. Feb. 15, 2005) (reproduced in addendum), this Court considered whether the plaintiff was substantially limited in the major life activity of working and therefore disabled under the ADA. The Court cited Toyota in observing that "[t]he term 'substantially limits,' like the other terms within the ADA, is 'interpreted strictly to create a demanding standard for qualifying as disabled.'" Id. at *3 (quoting Toyota, 534 U.S. at 197). Immediately after making this reference to Toyota, the Court turned to the EEOC's regulations for guidance. The Court said: "In the context of working, the Equal Employment Opportunity Commission . . . has interpreted 'substantially limits' to mean 'significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes . . . .'" Id. (quoting 29 C.F.R.  1630.2(j)(3)(i)) (emphasis added). Noting that "the Supreme Court has reserved judgment on the weight generally to be accorded the EEOC's interpretation of ADA terms," this Court nevertheless analyzed the case pursuant to the regulations. Id. Contrary to Sears' claim that the Supreme Court essentially overruled the EEOC's regulations by requiring plaintiffs to demonstrate a "severe" restriction instead of a "significant" limitation, Sears Br. at 13-14, the Supreme Court actually said: "Because both parties accept the EEOC regulations as reasonable, we assume without deciding that they are . . . ." Toyota, 534 U.S. at 194. But see Sears Br. at 13-14 (criticizing "the EEOC's unfounded assertion . . . that the Court in Toyota 'specifically assumed the validity of the EEOC's regulations'"). Given that the Toyota Court "assume[d] without deciding" that the EEOC's regulations are reasonable, Toyota, 534 U.S. at 194, it makes no sense for Sears to claim that the opinion simultaneously overruled them. Surely the Supreme Court would not have overruled the EEOC's regulations after saying, "we have no occasion to decide what level of deference, if any, [the regulations] are due." Id. Sears' brief also ignores the fact that virtually every court of appeals to consider the issue has agreed that, in using the word "severely," Toyota did not impose a new, more stringent standard on an ADA plaintiff seeking to show a "substantial limitation." See EEOC Br. at 29-31 (citing cases). In Kupstas, this Court has now joined that majority trend. Because Toyota did not impose a new, heightened standard, it did not justify the district court in reopening summary judgment on the question of whether Keane was disabled. B. Sears seeks to treat this Court's decision in Keane I as a mere advisory opinion. In Keane I, this Court pointed to "disputes regarding the severity of Keane's condition, along with absences in the record regarding facts that would have assisted in the resolution of those disputes," to reverse the district court's summary judgment award holding that Keane was not disabled as a matter of law. 233 F.3d 432, 439 (7th Cir. 2000). Sears now claims, misleadingly, that "[w]ithin the scope of remand, the district court ordered the parties to present evidence to address the concerns articulated by this Court." Sears Br. at 10. Sears' statement distorts what actually happened. Contrary to Sears' implication, the parties did not submit new evidence to fill the gaps in the record identified in Keane I. Instead, they simply filed supplemental statements of facts citing to pages in the existing record. (See R.104- 12, supplemental submissions regarding renewed summary judgment motion). In essence, Sears used this Court's opinion in Keane I as an outline for what its initial summary judgment motion should have looked like, and then resubmitted its same motion with new and improved language. If parties who lose on appeal are permitted to reopen identical questions on remand, there is nothing to stop them from reopening the same motions two, three, or even ten times. Appellate decisions will not resolve disputes; they will merely serve as expert legal advice on the best ways to frame an argument. Cf. Planned Parenthood Ass'n v. Kempiners, 700 F.2d 1115, 1135 (7th Cir. 1983) (per curiam) (Eschbach, J., writing separately) ("it is not this court's role on appeal . . . to provide plaintiff with an advisory opinion on how a federal judge would draft its complaint and then remand the case to permit plaintiff to parrot the words of the script drafted by such an illustrious legal advisor"). Neither the law nor the facts changed between the time of Sears' first and second motions for summary judgment. Accordingly, the holding of Keane I that the record reveals a genuine issue of material fact must stand. C. Sears ignores or misstates evidence from which a reasonable jury could find for the plaintiffs. Sears neglects to mention that, in reviewing an award of summary judgment, this Court must view all evidence in the light most favorable to the plaintiffs and must make all reasonable inferences in their favor. Compare Sears Br. at 11 with Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003) (reiterating the familiar summary judgment standard). A reasonable jury might agree with Sears' view of the record evidence, but then again it might not. Because a reasonable jury might agree with the plaintiffs and not with Sears, this case must be remanded for trial. As discussed in the EEOC's opening brief, a reasonable jury could conclude that Keane was disabled when she worked for Sears. EEOC Br. at 33-39. Although Sears makes much of Keane's testimony that she could perform the essential functions of her position without trouble, Sears Br. at 23-24, it ignores her enormous difficulty in getting to and from her work site. See EEOC Br. at 5-7. Sears seems to challenge Keane's credibility when it says, "There is absolutely no evidence that anyone at Sears ever observed [Keane holding onto walls to support herself as she tried to leave the building at the end of the day] or that she ever informed Sears management or even her own doctors that this ever occurred." Sears Br. at 16-17. As the Supreme Court has instructed, however, credibility is an issue for a jury and not for summary judgment. Anderson v. Liberty Lobby, Inc., 474 U.S. 242, 254 (1986). A reasonable jury could also conclude that Keane properly notified Sears of her disability and her need for accommodations. See EEOC Br. at 39-43. Contrary to Sears' contention that Keane did not clearly or repeatedly tell Sears about her neuropathy, Sears Br. at 18 n.7, Keane submitted two separate doctor's notes one in December 1994 and one in April 1995 that each mentioned neuropathy. EEOC Br., App. at A-28 to A-29. Additionally, she repeatedly told management personnel that she was having trouble walking, that her leg was becoming numb, and that she was having trouble leaving the building. EEOC Br. at 40. Sears disingenuously claims that it "did not have any reason to make further inquiry [into the extent of Keane's disability] because Keane did not make Sears aware that she needed anything more than what had already been done." Sears Br. at 20. In fact, however, Sears knew for eight months that Keane sought permission to use the shortcut through the shoe storeroom. EEOC Br. at 43-44. A reasonable jury could infer that it was precisely because Keane wanted to use the shortcut, and because Sears knew that she sometimes used it without permission, that Sears posted an employee outside the shortcut door and prevented her from entering. See id. at 15-16. A reasonable jury could also conclude that Sears, rather than Keane, was responsible for the breakdown of the interactive accommodation process. See EEOC Br. at 43-47. Sears attempts to portray Allen's request for a second doctor's note on a Sears form as a good faith effort to determine what Sears could do for Keane. Sears Br. at 24. However, the record shows that Allen never told Keane that the first note was deficient, and he never asked for more details about her impairment or her need for accommodations. EEOC Br. at 45-46. Although Keane was initially optimistic about Allen's response, (R.67-4, Vol. II, ex. 16, Keane Dep. at 295), her optimism quickly turned to frustration when, shortly after his conversation with her, Allen posted an employee in front of the shortcut door to prevent Keane from entering. Id. at 204. Keane testified that Sears' response to her many requests for help "was just a constant putting off, as if [my] request [wasn't] important and we'll get to it when we get to it." Id. at 371. Sears now claims that it "believed it had met the restrictions from Keane's doctors." Sears Br. at 19. Its unilateral assessment of Keane's needs, however, falls far short of the interactive accommodation process that the ADA requires. See Gile v. United Airlines, Inc., 213 F.3d 365, 373 (7th Cir. 2000) (employer must engage with employee to determine reasonable accommodation); Hendricks- Robinson v. Excel Corp., 154 F.3d 685, 693 (7th Cir. 1998) (same). Sears had a duty to check with Keane and see whether she agreed that her problem had been solved. A reasonable jury could find that Sears had already rendered the interactive accommodation process a farce long before Keane quit. Finally, a reasonable jury could reject Sears' claim that it provided reasonable accommodations. Remarkably, Sears seeks credit for providing temporary and inadequate accommodations notwithstanding the fact that it ultimately rescinded them. Sears Br. at 20-24. While it is true that Klisiak briefly permitted Keane to eat in the lingerie stockroom, Sears Br. at 21, it is also true that one day Klisiak yelled at her subordinates, including Keane, that due to a rodent problem, no one would be permitted to eat in the stockroom any longer. EEOC Br. at 9-10. Klisiak admitted that she did not tell Keane that this prohibition did not apply to Keane. (R.67-4, Vol. III, ex. 18, Klisiak Dep. at 91.) Keane did continue to eat snacks (but not lunch) in the storeroom, EEOC Br. at 10, but Sears can hardly claim credit for providing the accommodation when Keane took it upon herself to violate Sears' rule. Moreover, although Klisiak gave Keane temporary and unofficial permission to use the shortcut through the shoe storeroom, the shoe department manager yelled at Keane when she caught her using the shortcut, and Allen ultimately posted an employee outside the door to prevent Keane from entering. EEOC Br. at 14-16. A reasonable jury could conclude that these were not the actions of an employer intent on providing a disabled employee with reasonable accommodations. CONCLUSION As described more fully in the EEOC's opening brief, the district court erred in granting summary judgment to Sears. The court should not have revisited the question of whether Keane was disabled a question that this Court had already held should be decided at trial because Toyota did not change the governing law and the parties introduced no new facts into the record. Genuine issues of material fact also preclude summary judgment on alternate grounds. For the reasons stated above and in the EEOC's opening brief, this Court should reverse the award of summary judgment. Respectfully submitted, ERIC S. DREIBAND General Counsel CAROLYN L. WHEELER Acting Associate General Counsel _________________________________ GAIL S. COLEMAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, NW, Room 7034 Washington, DC 20507 (202) 663-4055 Addendum Only the Westlaw citation is currently available. United States Court of Appeals, Seventh Circuit. Rodney KUPSTAS, Plaintiff-Appellant, v. CITY OF GREENWOOD, Defendant-Appellee. No. 04-2081. ARGUED Dec. 3, 2004. DECIDED Feb. 15, 2005. Background: Former employee brought action alleging that city violated Americans with Disabilities Act (ADA) in terminating his employment. The United States District Court for the Southern District of Indiana, Richard L. Young, J., entered summary judgment in favor of city, and employee appealed. Holding: The Court of Appeals, Flaum, Chief Judge, held that city did not regard employee as disabled due to lifting and raking restrictions. Affirmed. [1] Civil Rights 1218(6) 78k1218(6) Most Cited Cases In order to establish disability discrimination case under "regarded as" prong of ADA, employer must believe, rightly or wrongly, that employee has impairment that substantially limits one or more major life activities. Americans with Disabilities Act of 1990,  3(2), 42 U.S.C.A.  12102(2). [2] Civil Rights 1218(6) 78k1218(6) Most Cited Cases Employer's decision to terminate employee because of restrictions imposed by physician does not violate ADA unless employer believes that restrictions constituted or revealed impairment limiting enough to be "disability" within meaning of ADA. Americans with Disabilities Act of 1990,  3(2), 42 U.S.C.A.  12102(2). [3] Civil Rights 1019(2) 78k1019(2) Most Cited Cases Term "substantially limits," as used in ADA, is interpreted strictly to create demanding standard for qualifying as disabled. Americans with Disabilities Act of 1990,  3(2), 42 U.S.C.A.  12102(2); 29 C.F.R.  1630.2(j)(3)(i). [4] Civil Rights 1218(2) 78k1218(2) Most Cited Cases If working is determined to be major life activity under the ADA, claimant will be required to show inability to work in broad range of jobs. Americans with Disabilities Act of 1990,  3(2), 42 U.S.C.A.  12102(2). [5] Civil Rights 1218(6) 78k1218(6) Most Cited Cases Plaintiff asserting ADA claim based on allegation that employer regarded him as being substantially limited in major life activity of working can never satisfy his burden by showing only that his employer believed that he could not perform specific job. Americans with Disabilities Act of 1990,  3(2), 42 U.S.C.A.  12102(2); 29 C.F.R.  1630.2(j)(3)(i). [6] Civil Rights 1218(6) 78k1218(6) Most Cited Cases Employer did not regard employee as disabled due to lifting and raking restrictions imposed because of his back condition, and thus employee's termination did not violate ADA, even though employer believed that employee could not perform essential functions of his truck driver/laborer position, absent evidence as to class or range of jobs for which he otherwise was qualified, and from which employer perceived him to be excluded. Americans with Disabilities Act of 1990,  3(2), 42 U.S.C.A.  12102(2); 29 C.F.R.  1630.2(j)(3)(i). Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 02 C 1163--Richard L. Young, Judge. Amy Ficklin Debrota, Young Riley Dudley & Debrota, Indianapolis, IN, for Plaintiff-Appellant. James S. Stephenson, Stephenson, Daly, Morow & Kurnik, Indianapolis, IN, for Defendant-Appellee. Before FLAUM, Chief Judge, and EASTERBROOK and WILLIAMS, Circuit Judges. FLAUM, Chief J. *1 Plaintiff-appellant Rodney Kupstas filed suit alleging that defendant-appellee City of Greenwood violated the Americans with Disabilities Act ("ADA"), 42 U.S.C.  12101 et seq., in terminating his employment. Following the district court's grant of summary judgment in favor of Greenwood, Kupstas appealed. For the reasons stated herein, we affirm. I. Background In 1992, Greenwood hired Kupstas to be a "truck driver/laborer" in its street department. According to the city's "Position Description," truck driver/laborers must be able to perform a wide rage of duties, including: operating various trucks, equipment, and hand tools in maintaining city streets and clearing them of snow and debris; hauling and spreading road materials; and periodically repairing streets and alleys, including shoveling and spreading road patching materials. In addition, the position requires the "ability to physically perform assigned duties including ... standing/walking for long periods, lifting/carrying objects weighing over 50 pounds, shoveling, [and] raking." During Greenwood's heavy leaf season, which typically lasts from mid-October through mid-December, crews of truck driver/laborers collect leaves that residents have raked from their yards. Crew members drive a truck from house to house, rake the piles of leaves toward the truck, and use a suction device to draw the leaves into the truck. After seven years on the job, Kupstas injured his back. Although he was able to continue working on temporary light duty, his condition did not improve, and in June 2000, he underwent outpatient surgery for a herniated disc. Following the surgery, he remained on light duty until his doctor released him for full duty in October 2000. In early 2001, Kupstas complained to his family doctor, Dr. Qualls, about continuing back pain. On May 25, 2001, Dr. Qualls wrote a letter stating that Kupstas should not shovel or rake, and should not lift more than 40 pounds, describing these restrictions as "permanent." Kupstas gave this letter to Greenwood Street Superintendent Greg Owens who assigned Kupstas to tasks that allowed him to follow Dr. Qualls's restrictions. On August 9, 2001, at the direction of Owens and Human Resources Director Carolyn Gaier, Kupstas saw the city's doctor, Dr. Poplin, who told Kupstas that he should either go back to his doctor and have the restrictions lifted or find another job. Dr. Poplin told Gaier that Dr. Qualls's restrictions were not appropriate but that he could not remove the restrictions ordered by another doctor. During subsequent meetings with Owens and Gaier, Kupstas said that he could not think of anything that the city could do to accommodate his restrictions. Owens and Gaier made it clear to Kupstas that his job was in jeopardy. Shortly after seeing Dr. Poplin, Kupstas returned to Dr. Qualls for a reevaluation. On August 18, 2001, Dr. Qualls sent a letter to the city, stating: "[Kupstas] is to remain on a 55-60 pound lifting restriction for the foreseeable future. He is also limited to no more than 2 hours of continuous shoveling or raking and no more than 4 hours of shoveling or raking per day." Thereafter, Gaier and Owens concluded that, although Kupstas could lift the required weight for the truck driver/laborer position, the raking restriction disqualified him. On her own initiative, Gaier contacted other city departments to ask about possible positions for Kupstas. After finding none for which he was qualified, Owens and Gaier terminated Kupstas's employment on August 21, 2001, before the start of leaf season. Kupstas filed this suit, alleging that Greenwood had violated the ADA. He now appeals the district court's grant of the city's motion for summary judgment. II. Discussion *2 Summary judgment is appropriate if the evidence presented by the parties "show[s] that there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). We review de novo a district court's grant of summary judgment, drawing all reasonable inferences in favor of the nonmoving party. Peters v. City of Mauston, 311 F.3d 835, 842 (7th Cir.2002). Kupstas alleges that Greenwood discharged him in violation of the ADA, under which "[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability." 42 U.S.C.  12112(a). The Act defines a "qualified individual with a disability" as "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires."  12111(8). A plaintiff seeking to avoid summary judgment must demonstrate that there is at least a genuine issue of material fact as to whether he is disabled, whether he can perform the essential functions of the position, and whether he has suffered an adverse employment action because of his disability. Dyke v. O'Neal Steel, Inc., 327 F.3d 628, 631 (7th Cir.2003). Neither party disputes that the termination of Kupstas's employment was an adverse employment action. In granting Greenwood's motion for summary judgment, the district court held that an issue of fact remained regarding whether Kupstas was disabled under the ADA, but that Kupstas could not show that he was able to perform the essential functions of the truck driver/laborer position. We disagree with the district court as to the first issue and find that the evidence presented cannot support the conclusion that Kupstas was disabled under the Act. Therefore, we need not reach the second issue regarding Kupstas's ability to perform the essential functions of the job. See Peters, 311 F.3d at 842 ("In deciding an appeal, this Court may affirm the grant of summary judgment on grounds different from that of the district court" if the grounds "have adequate support in the record and the law."). [1] The ADA provides the following definition of "disability": (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 an impairment; or (C) being regarded as having such an impairment. 42 U.S.C.  12102(2). Kupstas concedes that at the time of his discharge he did not have an actual impairment that substantially limited a major life activity. He contends only that he was regarded as having such an impairment. [FN1] Under the "regarded as" prong, the employer must believe, rightly or wrongly, that the employee has an impairment that substantially limits one or more of the major life activities. Cigan v. Chippewa Falls Sch. Dist., 388 F.3d 331, 335 (7th Cir.2004). Kupstas alleges that Greenwood regarded him as substantially limited in performing the major life activity of working. The Supreme Court has voiced some reservations, and expressly reserved judgment, about whether working can be a major life activity under the ADA. See Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 200, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002). We have stated that it can, see Peters, 311 F.3d at 843 ("To be sure, working constitutes a major life activity under the ADA and the Rehab Act."), and neither party asks us to reconsider. *3 [2] Kupstas's primary argument is that he was fired because of the restrictions imposed by Dr. Qualls and not because of an actual inability to perform his job. Such an employment decision would not violate the ADA, however, unless Greenwood believed that the restrictions imposed by Dr. Qualls constituted or revealed an impairment limiting enough to be a "disability within the meaning of the Act." Tockes v. Air-Land Transp. Servs., Inc., 343 F.3d 895, 896 (7th Cir.2003) (emphasis in original). "[I]f the condition that is the subject of the employer's belief is not substantially limiting, and the employer does not believe that it is, then there is no violation of the ADA under the 'regarded as' prong of the statute." Mack v. Great Dane Trailers, 308 F.3d 776, 782 (7th Cir.2002). In other words, unless the city believed that Kupstas had an impairment that substantially limited his ability to perform the major life activity of working, then the city's actions based on a mistaken belief as to Kupstas's abilities do not violate the Act. [3][4][5] The term "substantially limits," like the other terms within the ADA, is "interpreted strictly to create a demanding standard for qualifying as disabled." Toyota, 534 U.S. at 197. In the context of working, the Equal Employment Opportunity Commission ("EEOC") has interpreted "substantially limits" to mean "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." 29 C.F.R.  1630.2(j)(3)(i). It has further indicated that a plaintiff relying on the major life activity of working must present "evidence of general employment demographics and/or of recognized occupational classifications that indicate the approximate number of jobs (e.g., 'few,' 'many,' 'most') from which an individual would be excluded because of an impairment." 29 C.F.R. Pt. 1630, App.  1630.2(j). Although the Supreme Court has reserved judgment on the weight generally to be accorded the EEOC's interpretation of ADA terms, it has held that if working is determined to be a major life activity under the ADA, a claimant will be required to show "an inability to work in a broad range of jobs." Toyota, 534 U.S. at 194, 200 (internal quotations omitted). We have concluded that, except in "rare cases in which the [plaintiff's] impairments are so severe that [his] substantial foreclosure from the job market is obvious," he must present "some evidence of the number and types of other jobs" in the geographic region, from which he would be excluded because of his perceived impairments. EEOC v. Rockwell Int'l Corp., 243 F.3d 1012, 1017- 18 (7th Cir.2001). The impairments must "substantially limit employment generally," Stein v. Ashcroft, 284 F.3d 721, 725 (7th Cir.2002), not merely preclude an employee from performing "either a particular specialized job or a narrow range of jobs." 29 C.F.R. Pt. 1630, App.  1630.2(j). A plaintiff can never satisfy his burden by showing only that his employer believed that he could not perform a specific job. Toyota, 534 U.S. at 200; Peters, 311 F.3d at 843. *4 In Rockwell, an employer required all applicants for positions at its plant to undergo a "nerve conduction test." 243 F.3d at 1014. Those who failed the test were denied a job because the employer viewed them as having an enhanced likelihood of developing "cumulative trauma disorders such as carpal tunnel syndrome." Id. at 1014-15. The EEOC, on behalf of the rejected applicants, claimed that the employer regarded the applicants as disabled. Id. We held that the case could not go to the jury without at least some evidence that the impairment allegedly perceived by the employer would substantially limit the applicants' "ability to meet the requirements of other jobs." Id. at 1018. [6] The evidence presented in this case supports only the conclusion that Greenwood believed that Kupstas was unable to rake or shovel for more than 2 hours continuously or 4 hours in a day and could lift no more than 55-60 pounds. Kupstas admits that, after the modification from 50 to 55-60 pounds, the city no longer was concerned about his lifting restriction and did not believe that it would limit his ability to work as a truck driver/laborer. Furthermore, even if the city had viewed this as an impairment that prevented Kupstas from performing his duties, we have held that more serious restrictions do not substantially limit one's general ability to work. See, e.g., Peters, 311 F.3d at 844 (finding no substantial limitation to the ability to perform the major life activity of working where an employee was unable to lift more than 50 pounds, shovel for more than 30% of a workday, or use of his shoulder for more than 2 hours continuously or 6 hours in a day); Contreras v. Suncast Corp., 237 F.3d 756, 763 (7th Cir.2001) (finding not even a "hint" that the plaintiff was precluded from a broad class of jobs where he was unable to lift more than 45 pounds, do "strenuous work," or drive a forklift for more than 4 hours in a day). As to the remaining restrictions, Kupstas has offered no evidence of other jobs that would require him to rake or shovel for more than 2 hours continuously or 4 hours in a day. [FN2] In fact, in arguing that he could perform the essential functions of the truck driver/laborer position, Kupstas asserted that even the "rake man" on the leaf crew did not have to rake this much. In Contreras, we held that "forklift operation" was not alone "broad enough to constitute a class of jobs." 237 F.3d at 763. The class of jobs requiring raking or shoveling for more than 2 hours continuously or 4 hours in a day is undeniably narrow and does not, without more, indicate Kupstas's "substantial foreclosure from the job market." Rockwell, 243 F.3d at 1017. As in Rockwell, Kupstas's failure to provide evidence as to a class or range of jobs for which he otherwise was qualified, and from which Greenwood perceived him to be excluded, is fatal to his case. Kupstas makes several assertions in an effort to show that Greenwood believed that his impairment debilitated him in ways other than limiting his raking and shoveling. Each assertion is either unsupported by the evidence or cannot be the basis for an inference that Greenwood regarded him as disabled. *5 Kupstas first argues that Greenwood believed that he was unable to perform any jobs requiring tasks "similar" to raking and shoveling, such as mopping and sweeping. This argument fails because Kupstas has offered no evidence that similar physical abilities are needed to perform these tasks, no evidence of the number of jobs in his geographic area which require mopping or sweeping for more than 2 hours continuously or 4 hours in a day, and most importantly, no evidence that the city believed that his restrictions would prevent him from performing these "similar" tasks. Next, Kupstas argues that Greenwood's insistence that he have his restrictions "lifted" before returning to work shows that Greenwood had a "100% healed rule." He asserts that this in turn shows that the city believed that anyone with physical restrictions is disabled and unable to work. Given Kupstas's admission that the city was no longer concerned about his lifting restriction, no reasonable jury could conclude that the mere fact that Kupstas had work restrictions, or was not 100% healed, was the basis for his termination. Kupstas argues that the city's offer to reasonably accommodate him supports the inference that it did so because it believed he was disabled. We do not assume that "an employer offers accommodation only if it thinks that the employee suffers from a substantial limitation in a major life activity." Cigan, 388 F.3d at 335. Even if a jury could infer that an employer offered an accommodation because of some perceived impairment, the plaintiff still must demonstrate that the perceived impairment is one that would substantially limit a major life activity. As we have discussed throughout this opinion, Kupstas has not offered any evidence to satisfy this burden. Kupstas points to evidence that Owens made no attempt to investigate the actual physical demands of the truck driver/laborer position. He contends that, based on this fact, a jury could infer that Owens had decided that Kupstas was disabled. At most, this evidence shows that Owens believed that Kupstas was not able to preform the duties of the truck driver/laborer position. We already have explained that Kupstas cannot meet his burden by showing that Greenwood believed that he could not perform a specific job. See Toyota, 534 U.S. at 200; Peters, 311 F.3d at 843. Finally, Kupstas notes that, before his discharge, Gaier contacted other city departments to inquire about possible positions for him. There is some dispute about whether Gaier told Kupstas that there were "no jobs that [Kupstas] qualified for within the City" or that there were no available jobs in other departments for which he was qualified. The latter version, advanced by the city, is supported by a conversation with Owens and Gaier that Kupstas secretly recorded, in which Owens explained to Kupstas that he could maintain his seniority if he found another job with the city: I mean anything we can do ... even if another position somewhere else in the city came open ... that didn't have the requirements of this position, you know--at least your seniority and everything would stay intact .... What we were going to even offer you is that if you found a job within--with the city within a 30 day period, I mean we would even- -we would act as if you never left the city.... I mean there were several things we were willing to do because-- just because of your reputation here.... Like I say, you've been a model employee as far as I'm concerned. *6 Assuming arguendo that a reasonable jury could conclude, despite this evidence, that Gaier told Kupstas that the city believed that he was not physically able to perform any job with the city, it does not follow that the city believed that Kupstas's impairments made him unable to perform a broad range of jobs. Kupstas has not presented evidence of the number, nature, or qualifications of other jobs with the city. Thus, there is no evidence that the city employed workers in a broad range of jobs. Kupstas argues that "[t]he mere fact that Gaier looked for jobs in other departments shows that she thought Kupstas'[s] restrictions [a]ffected his ability to do other jobs." If anything, the reverse is true; Gaier's efforts suggest that she believed that Kupstas would be able to perform other city jobs. 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. III. Conclusion The district court's grant of summary judgment in favor of Greenwood is AFFIRMED. FN1. Kupstas briefly mentions that he also had a record of impairment. The district court expressly declined to consider the second prong of the definition of "disability," however, because Kupstas "provided no argument" on the issue. Because he does not challenge the district court's ruling or contend that he has presented sufficient evidence to make a prima facie showing that he had a record of impairment, we do not consider the issue. See Tyler v. Runyon, 70 F.3d 458, 465 (7th Cir.1995) ("[I]f an appellant fails to make a minimally complete and comprehensible argument for each of his claims, he loses regardless of the merits of those claims as they might have appeared on a fuller presentation."). FN2. The district court granted the city's motion to strike the following evidence submitted in opposition to Greenwood's motion for summary judgment: statements in Kupstas's affidavit repeating statements made to him by temporary employment agencies; a series of affidavits of Christine M. Jackson, a law clerk for Kupstas's attorney, stating that she searched various job listings and found titles which appeared to require the "repetitive movements of raking and shoveling and similar repetitive movements including sweeping and digging." Though Kupstas contends that the district court's exclusion of the evidence was "mistaken," he does not appeal the ruling or argue that the district court abused its discretion. See Cooper-Schut v. Visteon Auto. Sys., 361 F.3d 421, 429 (7th Cir.2004) ("We review evidentiary rulings for abuse of discretion."). Accordingly, we do not review the district court's ruling or consider the excluded evidence. 2005 WL 352428 (7th Cir.(Ind.)) END OF DOCUMENT CERTIFICATE OF SERVICE I, Gail S. Coleman, hereby certify that I filed this brief with the Court by sending, via Federal Express, the original plus 15 copies and by uploading a digital version of the brief. I also certify that I served two copies of the brief, as well as a computer disk containing a digital version of the brief, this 25th day of February, 2005, by first- class mail, postage pre-paid, to the following counsel of record: Steven N. Fritzshall Brad J. Pawlowski Fritzshall Law Firm 6584 North Northwest Highway Chicago, IL 60631 Grady B. Murdock, Jr. Mary A. Smigielski Morgan, Lewis & Bockius LLP 77 West Wacker Dr., Floor 6 Chicago, IL 60601 __________________________________ GAIL S. COLEMAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, NW, Room 7034 Washington, DC 20507 (202) 663-4055 __________________________________ 1 Notably, rather than citing directly to record evidence, Sears primarily cites to its own Rule 12(M) statement of “uncontested” material facts. See Sears Br. at 5-10 (repeatedly citing to R.73, Sears’ 12(M) statement). The plaintiffs, however, have contested most of the “facts” in Sears’ 12(M) statement. (R.42, plaintiffs’ 12(N) statement). The EEOC urges this Court to look directly at the record, and not at Sears’ filtered view of the evidence, in deciding whether the record raises genuine issues of material fact. 2 The EEOC cites to this page only because Sears cites to it on page 25 of its appellate brief. This page of Keane’s deposition was not cited to the district court in connection with either of the summary judgment motions and, therefore, should not be considered by this Court on appeal. See Ammons v. Aramark Unif. Servs., Inc., 368 F.3d 809, 818 (7th Cir. 2004) (“A court should not be expected to review a lengthy record for facts that a party could have easily identified with greater particularity.”).