The full case caption appears at the end of this opinion.
Kanne, Circuit Judge. Staceen Sinkler suffersfrom a “specific phobia” involving the operationof an automobile. Her condition makes her unableto drive anywhere unfamiliar to her, and on atleast two occasions, her phobia forced heremployer, Midwest Property Management LimitedPartnership (“Midwest”), to make alternate travelarrangements so she could perform her job asregional sales manager. Midwest ultimatelydischarged Sinkler. Sinkler filed suit againstMidwest, alleging that Midwest discharged herbecause of her phobia and failed to makereasonable accommodations for her condition, inviolation of the Americans with Disabilities Act(“ADA”). Midwest moved for summary judgment, arguing thatSinkler was not a qualified individual with adisability within the meaning of the ADA becauseSinkler’s specific phobia did not substantiallylimit her major life activity of working. Thedistrict court granted Midwest’s motion. Sinklerappeals, and we affirm. I. History Staceen Sinkler’s specific phobia causes herintense anxiety, distress, avoidance and feelingsof derealization when she must drive in anunfamiliar area. Because of these “spontaneouspanic attacks,” Sinkler’s condition requires herto take alternate forms of transportation or totravel as a passenger on trips from her home inKenosha, Wisconsin, to such nearby cities asMilwaukee or Chicago. Sinkler has always had afear of driving. Sinkler’s physician Dr. V. K.Sharma diagnosed her condition in 1983 as a”phobia” and in 1986 as “spontaneous panicattacks.” Her phobia always has hindered herability to secure employment that would requireher to drive outside of Kenosha. Sinkler’s fear of driving has not stymied herability to work within Kenosha. In fact, she hasworked within the city for more than thirtyyears. She has held sales jobs for manyemployers, serving as a sales representative fora nursing home and as salesmanager/representative for Best Western inKenosha. Her previous employers knew about herfear of driving and did not require her to driveoutside of the city. However, she has been forcedto decline promotions when non-local travel wouldhave been required. In July 1997, Sinkler was hired by Midwest towork at its Illinois Beach Resort hotel, locatedin Zion, Illinois. At the time Sinkler was hired,neither she nor Midwest had determined whatduties she would be required to perform.Therefore, Midwest never provided Sinkler with adescription of the job of sales manager, theposition she ultimately assumed. When she beganwork, Sinkler found that one of herresponsibilities would be to travel throughoutIllinois. Concerned about her ability to marketthe hotel throughout the state, she told hersupervisor Geri Patterson that she “had a problemdriving” and that she might need help to “workthat out.” Patterson told Sinkler that they would”work together for a while,” so that Sinklercould grow comfortable with the area that shewould be required to service. Shortly thereafter, the hotel’s general manager,Steve Waak, asked Sinkler to travel to Chicago ona sales trip. Sinkler informed Waak that shewould be unable to make this drive, and heapproved her request to take a train instead.Later that year, Patterson asked Sinkler totravel with her to Springfield, Illinois, on abusiness trip. Sinkler asked Patterson to driveon this trip because Sinkler felt that she wouldbe unable to drive that distance. Pattersonindicated that she was willing to drive them bothto Springfield, but Sinkler did not make thetrip. She was not required to travel toSpringfield because Waak decided that she neededto remain at the hotel for other reasons. In November 1997, Drew Lombardo, a limitedpartner in Midwest and director of the corporateentity that was Midwest’s general partner, askedRenee Shrewsbury to visit the hotel and touncover and report any problems that existedthere. During her week stay at the hotel,Shrewsbury and Sinkler spoke once or twice aboutwhether Sinkler could take a business trip toSpringfield. Sinkler told Shrewsbury that she wasafraid to drive to Springfield and asked if shewould be permitted to fly there. Shrewsbury toldher that Lombardo would not pay for her to fly.Later that week, Patterson, Midwest comptrollerCheryl Overton, Shrewsbury and Sinkler met for abrainstorming session. During the meeting,Sinkler again told Shrewsbury that she was unableto drive to Springfield because she was “reallyhandicapped with that.” She told Shrewsbury thatif she and Patterson traveled together andSinkler grew familiar with the route, then shemight subsequently be able to make the trip byherself. Shrewsbury reported the details of theseconversations to Lombardo, who remarked that healso had heard that Sinkler was afraid to drive. In late November, with Patterson’s permission,Sinkler engaged in competitive shopping ofsurrounding hotels. The purposes of this activitywere to acquire referral business and todetermine the rates these hotels offered and thequality of service the competition provided.Around this time, Sinkler also believed that shewould be more efficient if she had access to acomputer. Sinkler arranged with an acquaintanceto have an unused computer owned by the hotelprogrammed for her use. In return, Sinklertreated the programmer to dinner at the hotel.Patterson authorized both the idea of setting upthe computer and the idea of giving theprogrammer a free dinner. Nonetheless, Lombardowas unhappy with the decision to install newsoftware on the computer. On November 26, 1997, Sinkler participated in aconference call with Lombardo, Shrewsbury andothers. During the call, Sinkler referred to theconference call as a “waste of time,” and thisinfuriated Lombardo. Immediately after theconference call, he decided to fire Sinkler. OnDecember 4, Sinkler entered her office and foundLombardo there holding her personal belongings.Lombardo told her that he was firing her andblamed the firing on her “lying” to him byfailing to tell him that she was handicapped.Lombardo also justified the firing on hisdispleasure with the decision to swap softwareinstallation for a free dinner at the hotel, hisbelief that her job did not require competitiveshopping and on undocumented conflicts betweenSinkler and her co-workers. After her termination, Sinkler obtained a part-time sales position at Sears in Kenosha. Thisposition did not require her to drive inunfamiliar areas. Sinkler filed a complaintagainst Midwest in federal district court,alleging that Midwest had discriminated againsther by basing her termination on her conditionand by refusing to make accommodations that wouldallow her to work despite her condition. Midwestfiled a motion for summary judgment, seekingdismissal on the ground that Sinkler was not aqualified individual with a disability within themeaning of the ADA. Sinkler replied to thismotion, and both parties supplemented theirmotions with affidavits. The district court granted Midwest’s motion forsummary judgment. The court observed that bothparties had stipulated to Sinkler’s impairmentbut found that this impairment did notsubstantially limit Sinkler’s ability to work.The court based this finding on Sinkler’s thirtyyears of prior work experience. Challenging thedistrict court’s characterization of the majorlife activity that her condition impaired,Sinkler asks us to reverse the district court’sgrant of summary judgment. II. Analysis A. Standard of Review We review de novo the district court’s grant ofsummary judgment, drawing our own conclusions oflaw and fact from the record before us. SeeFeldman v. American Memorial Life Ins. Co., 196F.3d 783, 789 (7th Cir. 1999). Summary judgmentis proper when “the pleadings, depositions,answers to interrogatories, and admissions onfile, together with the affidavits, if any, showthere is no genuine issue as to any material factand that the moving party is entitled to ajudgment as a matter of law.” Fed. R. Civ. P.56(c); see also Celotex Corp. v. Catrett, 477U.S. 317, 322-23 (1986). In determining whetherthere exists any genuine issue of material fact,we must construe all facts in the light mostfavorable to the non-moving party and draw allreasonable and justifiable inferences in favor ofthat party. See Anderson v. Liberty Lobby, Inc.,477 U.S. 242, 255 (1986). “A genuine issue fortrial exists only when a reasonable jury couldfind for the party opposing the motion based onthe record as a whole.” Pipitone v. UnitedStates, 180 F.3d 859, 861 (7th Cir. 1999)(citation omitted). B. Sinkler’s Disability The ADA prohibits employer discriminationagainst an employee on the basis of a disability.42 U.S.C. sec. 12112(a). However, to make a primafacie case for discrimination, Sinkler mustdemonstrate that her condition qualifies as adisability within the meaning of the ADA. SeeFeldman, 196 F.3d at 789. The statute definesdisability as: (A) a physical or mental impairment thatsubstantially limits one or more of the majorlife activities of such individual; (B) a record of such impairment; or (C) being regarded as having such an impairment. 42 U.S.C. sec. 12102(2). If Sinkler’s conditiondoes not rise to the level of a disability asdefined by the act, then she cannot recover evenif Midwest terminated her expressly because ofher condition. See Skorup v. Modern Door Corp.,153 F.3d 512, 514 (7th Cir. 1998). Moreover, ifSinkler’s condition fails to fall within thedefinition of impairment set forth in sec.12102(2)(A), she cannot assert that Midwestterminated her because she had a record of thatcondition. See Davidson v. Midelfort Clinic,Ltd., 133 F.3d 499, 510 n. 7 (7th Cir. 1998)(“What 12102(2)(B) requires is not simply adiagnosis, but a record reflecting the kind ofimpairment that would impose a substantiallimitation on one or more of the plaintiff’smajor life activities.”); 29 C.F.R. sec.1630.2(k). In Bragdon v. Abbott, 524 U.S. 624, 118 S.Ct.2196, 2202 (1998), the Supreme Court identifieda three-step test to determine if a physical ormental condition met subsection (A) of thedefinition of disability. First, we mustdetermine whether the condition claimed was aphysical or mental impairment. See id. Second,”we identify the life activity upon which[Sinkler] relies . . . and determine whether itconstitutes a major life activity under the ADA.”Id. Third, we determine whether the impairmentsubstantially limited this major life activity.See id. Midwest concedes that Sinkler’s drivingphobia constitutes an impairment, so we focus onthe substance of Sinkler’s complaint, which isthat her impairment substantially limits a majorlife activity. 1. Major Life Activity Applying the second step of the Bragdon test,we isolate the major life activity affected bySinkler’s impairment. An ADA claimant mustspecify which major life activity has beenlimited; only those grounds specifically raisedwill be considered on appeal. See Bragdon, 118S.Ct. at 2205 (restricting analysis of whetherHIV is an ADA disability to its limitation ofreproduction because “the case has been treatedas one in which reproduction was the major lifeactivity limited by the impairment,” and “[i]t isour practice to decide cases on the groundsraised”). Equal Employment Opportunity Commissionregulations interpreting the ADA define “majorlife activities” by providing a list thatincludes “functions such as caring for oneself,performing manual tasks, walking, seeing,hearing, speaking, breathing, learning, andworking.” 29 C.F.R. sec. 1630.2(i). Rather than “enunciating a general principle fordetermining what is and is not a major lifeactivity,” the ADA regulations provide “arepresentative list,” which is intended to be”illustrative, not exhaustive.” Bragdon, 118S.Ct. at 2205. When analyzing whether an unlistedactivity constitutes a major life activity, “thetouchstone for determining an activity’sinclusion under the statutory rubric is itssignificance.” Id. (internal citation omitted).According to this standard, we consider unlistedactivities in contrast to listed activities todetermine whether the unlisted activity has equal”significance.” One standard by whichsignificance has been judged is whether “theaverage person in the general population canperform [the activity] with little or nodifficulty.” Pack v. Kmart Corp., 166 F.3d 1300,1305 (10th Cir. 1999). However, when consideringan activity’s significance, we ask whether anactivity is significant within the meaning of theADA, not whether it is significant to aparticular person. See Colwell v. Suffolk CountyPolice Dep’t, 158 F.3d 635, 642 (2d Cir. 1998). In her memorandum in opposition to Midwest’smotion for summary judgment, Sinkler identified”working” as the major life activity that herimpairment affected. She stated that her”disability has created a major impact on herability to work over the years because she canonly hold jobs which will not require her todrive in unfamiliar places.” Accordingly, thedistrict court analyzed whether her impairmentsubstantially limited her ability to work. Thecourt found no substantial limitation and grantedMidwest’s motion for summary judgment. On appeal,Sinkler claims that the district courtmisunderstood which major life activity herimpairment limited. She now argues that herphobia limits her major life functions of”getting to and from her work assignments, . . .thinking, concentrating, and basic personalmobility.” Sinkler has never before raised the issues thather phobia affects her ability to think,concentrate or limit her “basic personalmobility,” so Sinkler has waived these claims.See Hoeller v. Eaton Corp., 149 F.3d 621, 625(7th Cir. 1998). In support of her contentionthat commuting to and from work is a major lifeactivity, Sinkler cites dicta from other circuitsthat extol the importance of timeliness to workperformance. See Lyons v. Legal Aid Soc’y, 68F.3d 1512, 1516 (2d Cir. 1995) (noting that “anessential aspect of many jobs is the ability toappear at work regularly and on time”); Carr v.Reno, 23 F.3d 525, 530 (D.C. Cir. 1994) (“[A]nessential function of any government job is anability to appear for work.”). These statementswere made in the context of an ADA reasonableaccommodation analysis rather than ADA major lifeactivity analysis, and for this reason, theyprovide little insight into whether commutingshould be considered an independent major lifeactivity. However, to the extent that suchstatements are relevant, they suggest thatgetting to and from work is important toperformance at work, but they do not suggest thatdriving to work assignments is one of the “basicfunctions of life.” Knapp v. Northwestern Univ.,101 F.3d 473, 479 (7th Cir. 1996). Becauseworking is a major life activity, [FOOTNOTE 1]
weunderstand that, as a matter of law, the averageperson must be able to get to and from work.Nonetheless, in comparison with the major lifeactivity of working, or with any of the otherlisted activities, we do not find commutingequally significant. “Getting to and from workassignments” is not a major life activity.Rather, this task is either a sub-species of theactivity of “working” or of “driving.” Although the Second Circuit has concluded thatdriving is not the type of endeavor that may becharacterized as a major life activity, seeColwell, 158 F.3d at 643, we need not reach thatissue. We believe that the major life activitythat Sinkler describes has not changed. Instead,she has merely attempted to re-characterize theactivity of “working” as a narrower activity of”getting to and from work assignments” in thehope that we will reach a more favorabledetermination of the extent to which herimpairment limits this activity. We conclude that”working” is the major life activity that Sinklerclaims her impairment limits, and we willevaluate her claim of substantial limitation fromthis perspective. 2. Substantial Limitation The final step of the Bragdon test is todetermine whether Sinkler’s impairment set asubstantial limit on her major life activity ofworking. See Bragdon, 118 S.Ct. at 2202. Thedistrict court found that because Sinkler wasable to hold a broad range of other jobs, herinability to perform jobs that required travel tounfamiliar areas did not constitute a substantiallimitation on her ability to work. Sinklercontends that the district court erred becauseher impairment constituted a significant barrierfor her personal employment possibilities. In the context of the major life activity ofworking, “‘[s]ubstantially limits’ means that aperson is either ‘[u]nable to perform a majorlife activity’ or is ‘significantly restricted asto the condition, manner or duration’ under whichthe individual can perform the major lifeactivity as compared to the average person in thegeneral population.” Skorup, 153 F.3d at 514(quoting 29 C.F.R. sec. 1630.2(j)(1)). However,”an inability to perform a particular job for aparticular employer” is insufficient to establishsubstantial limitation. Byrne v. Board of Educ.,979 F.2d 560, 565 (7th Cir. 1992). Instead, “theimpairment must substantially limit employmentgenerally.” Id. While we note that substantiallimitation must be mea-sured by consideringSinkler’s particular impairment to determinewhether it constituted a significant barrier toher employment, taking her unique circumstancesinto account, see id., Sinkler has the burden ofpresenting evidence to identify how herimpairment limited an entire class or broad rangeof jobs. See Skorup, 153 F.3d at 515. Sinkler has made two claims that demonstrateways in which her phobia limits her ability towork: she was forced to turn down a promotionthat would have required her regularly to driveto Milwaukee, and her phobia was the basis forher discharge from Midwest. Even viewed in thelight most favorable to her, these facts do notshow that Sinkler’s phobia substantially limitedher ability to work. The fact that Sinkler hasbeen forced to decline promotions that wouldrequire her to travel regularly outside of her”comfort zone” suggests that Sinkler’simpairment, when viewed in a light most favorableto Sinkler, restricts her from holding any jobthat would require her regularly to travel by carto areas unfamiliar to her. Assuming as we mustthat her termination from Midwest was based onher impairment, this fact also indicates that herimpairment restricts her from taking sales jobsthat require frequent travel by car to unfamiliarareas. Although many sales jobs require businesstravel to unfamiliar areas, we do not believethat these jobs amount to a broad enough class toconstitute a substantial limitation. Many facts in the record demonstrate that abroad range of jobs remain open to Sinkler. Asthe district court noted, Sinkler was employedfor thirty years in the Kenosha area prior toworking for Midwest, and she has produced noevidence that she was impeded by her impairmentin the performance of those jobs. Sinkler wasable to find a job in sales after she wasdischarged by Midwest, and Sinkler presents noevidence of any limitation on her performance inthat job. In addition, although Sinkler may beunable to accept employment that requires her todrive outside of the Kenosha area, she presentsno evidence that she is unable to work for anemployer located outside the Kenosha area.Sinkler’s impairment does not prevent her fromworking for any employer which is easilyaccessible by public transportation or car-pool.This class of employers includes the large numberof companies located in the Chicago and Milwaukeemetropolitan areas. Finally, certain factsindicate that Sinkler’s fear of unfamiliar placescan be overcome. Sinkler told Midwest that if shecould act as a passenger on trips to Springfield,then she might feel more comfortable with makingthe trip by herself. This indicates thatSinkler’s impairment does not limit her fromworking for employers who require driving toplaces outside of her comfort zone, as long asSinkler is first allowed to travel with otheremployees and become familiar with the trips shemust make. Sinkler did not provide the district court withsufficient evidence to conclude that hercondition precludes her from taking any broadrange of jobs, such as all sales jobs. For thisreason, we find that her impairment does notsubstantially limit her major life activity ofworking and does not meet the definition of adisability under sec. 12102(2)(A). 3. Perception of Disability Sinkler also argues both that her record ofimpairment led to her discharge, under sec.12102(2)(B), and that Midwest discharged herbecause it perceived that she was disabled withinthe meaning of the ADA, under sec. 12102 (2)(C).Sinkler provides no evidence that the record ofher impairment had any effect on her discharge,so we find no error in the district court’s grantof summary judgment as to the sec. 12102(2)(B)claim. However, Sinkler claims that DrewLombardo, the CEO of Midwest, told her that shewas being fired because she had lied by notinforming him that she was “handicapped.”Lombardo apparently felt that Sinkler’simpairment constituted a handicap to her abilityto perform the tasks required as regional salesmanager, one of which appears to be frequenttravel to unfamiliar areas. To prevail on the sec. 12102(2)(C) claim thatshe was discriminated against by Midwest becauseit believed she was disabled, Sinkler must showthat Midwest believed that she was unable to workin a particular class or broad range of jobs asrequired in the definition of disability undersec. 12102(2)(A). See Skorup, 153 F.3d at 515.Because we have found that Sinkler’s specificphobia is not an impairment that substantiallylimits her ability to work, to defeat Midwest’smotion for summary judgment Sinkler must showthat Midwest believed her phobia limited theclass of jobs that Sinkler could perform morebroadly than her phobia actually limited her.Sinkler provides no evidence to demonstrate thatMidwest believed that she was “disabled” withinthe definition of the ADA or that it believed herimpairment would limit her ability to work at abroad range of jobs. Sinkler claims that the evidence suggests thatMidwest believed her unable to drive to and fromwork at all. Her testimony about Lombardo’sstatements does show, when viewed most favorablyfor the plaintiff, that Midwest fired her becauseof her impairment, that is her fear of driving tounfamiliar places. However, the evidence that sheprovides does not support the inference thatMidwest believed her unable to commute to workgenerally. The hotel was located in Zion,Illinois, which is some eight miles from Kenosha,Wisconsin, but Midwest required Sinkler to drivefrom Kenosha to Zion to go to work. From thesefacts, we infer that Midwest knew that Sinklerdrove every day to work. Because Midwest did notindicate that a history of tardiness orabsenteeism was a basis for Sinkler’stermination, we infer that Midwest found noproblems with Sinkler’s regular commute, onlywith her ability to drive to unfamiliar areas.Sinkler has presented no other evidence fromwhich we reasonably may infer that Midwestbelieved Sinkler was incapable of driving at all.Her evidence only demonstrates that Midwest feltthat she was incapable of performing the drivingto unfamiliar areas which was required of aregional sales manager. We find that Midwest didnot perceive Sinkler as having an impairmentwhich would substantially limit her ability toperform any broad range of jobs. III. Conclusion We find that the district court did not err indetermining that Sinkler claimed “working” to bethe major life activity that her specific drivingphobia substantially limited. We find no error inthe district court’s conclusion that Sinkler’sspecific phobia did not substantially limit herability to work or in its conclusion that Midwestdid not perceive Sinkler to be disabled. Forthese reasons, Sinkler’s condition does not meetthe definition of disability under the ADA. Thedistrict court’s grant of summary judgment is AFFIRMED. FOOTNOTES FN1
We note that the Supreme Court has recentlyexpressed concern even over whether “working”should be considered a major life activitybecause of the inherent circularity of a claimmade on this basis. See Sutton v. United AirLines, Inc., ___ U.S. ___, 119 S.Ct. 2139, 2151(1999); see also Schneiker v. Fortis Ins. Co.,No. 99-1437, 2000 WL 10251, at *6 (7th Cir. Jan.6, 2000). Nonetheless, until the Supreme Courtdefinitively excludes working as a major lifeactivity, we will follow the precedent of thiscircuit and regard “working” as a major lifeactivity. See Skorup, 153 F.3d at 514-15; Weilerv. Household Fin. Corp., 101 F.3d 519, 524-25(7th Cir. 1996).
Sinkler v. Midwest Property Management. Limited Partnership In theUnited States Court of AppealsFor the Seventh Circuit No. 99-1582 Staceen M. Sinkler, Plaintiff-Appellant, v. Midwest Property ManagementLimited Partnership, Defendant-Appellee. Appeal from the United States District Courtfor the Eastern District of Wisconsin. No. 98 C 247–John W. Reynolds, Judge. Argued December 2, 1999–Decided April 6, 2000 Before Ripple, Kanne and Diane P. Wood, CircuitJudges.