Raymond D. WRIGHT, Plaintiff-Appellant, v. ILLINOIS DEPARTMENT OF CORRECTIONS, Defendant-Appellee, 204 F.3d 727

RIPPLE, Circuit Judge. Raymond Wright brought this action against the Illinois Department of Corrections (“the Department”). He alleged that the Department violated the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., by refusing to hire him because of his disability. The district court granted

summary judgment for the Department, and Mr. Wright appeals. For the reasons set forth in this opinion, we affirm the judgment of the district court. I BACKGROUND A. Facts In August 1994, Raymond Wright applied for a position as a correctional officer with the Illinois Department of Corrections. On his application, he checked a box indicating that he was a veteran with a service-connected disability. On August 12, 1994, Mr. Wright went through the screening process required- of all applicants, including two written examinations, a five-step physical agility test, and an interview. Mr.

Wright passed the written and physical tests “with flying colors.” R. 27 at7. Mr. Wright told his interviewers that he had an ankle problem and might not be able to do prolonged running. The interviewers told him that passing the physical agility test meant he was more than qualified to handle all physical aspects of the job and that he could obtain a “waiver” from any prolonged running that might be required at the correctional officer training Academy. Because Mr.

Wright successfully proceeded through the screening process and the Department’s further evaluation of his application, he was placed on the Department’s list of persons eligible for employment. On March 29, 1995, the Robinson Correctional Center (“Robinson”) gave Mr. Wright an offer of employment that was conditional on his successful completion of a drug test and a medical exam. On April 21, he reported to Robinson for an orientation session. Mr. Wright informed the orientation leaders that he had a disability that prevented him from standing, sitting, or walking for any length of time.

When one of the other new recruits inquired about the “night life” in Springfield (where the training Academy is located), the orientation leaders stated that the evening hours would be occupied with various training exercises, including marching. Mr. Wright then threw his right arm in the air and said, “cha-ching, I’m outta there.” R.27, Ex. 5. When the orientation leaders asked what he meant, he reiterated that he had a standing, sitting,and walking disability. He also stated that his screening interviewers had told him that he would not have to do prolonged running at the Academy.

The orientation leaders then said he would need a note from his doctor to be exempt from prolonged running. At the conclusion of the orientation, Mr. Wright and the other candidates were instructed to report to Robinson on April 25 for the physical exam. Mr. Wright alleges that, when he returned home after orientation on April 21, he received a phone call from Lynnette Jones of the Department’s Personnel Office stating that the Department had “overlooked” his “disability” and that he would not be hired because of it. R.27 at 4. Mr.

Wright alleges that he then called Illinois State Representative Chuck Hart-ke’s office, which in turn made a call to the Department. This second call resulted in the Department’s scheduling Mr. Wright for a special medical exam. On April 24, Personnel Representative Carolyn Ochs wrote a memorandum to Administrative Assistant Charles Williams regarding “Pending COT Hire — Raymond Wright.” R.27, Ex.5. The memo informed Williams that, on April 21, Mr.

Wright had inquired whether paperwork was needed for his medical disability, that his application indicated he was a veteran with a service-connected disability, and that he stated that he could not stand, sit, or walk for any length of time. On April 27, Lynnette Jones wrote a letter to Dr. Quigg confirming a pre-em-ployment physical exam scheduled for Mr. Wright for May 3, 1995, at 10:30 a.m. The letter stated that Mr. Wright had applied to become a correctional officer and that, due to an ankle injury, he had restrictions on standing, sitting, and walking that would prevent him from marching.

Jones included with the letter a description of the six-week training regimen for correctional officers and asked Dr. Quigg to determine whether Mr. Wright would be capable of performing the duties required of a correctional officer. The Department contacted Mr. Wright by phone and by mail to notify him of his May 3 appointment with Dr. Quigg. On May 3, Mr. Wright arrived late for his appointment at Dr. Quigg’s office because he had spent the day attending to preparations for his upcoming wedding. The parties dispute whether he was an hour or two and a half hours late. In any event, Dr.

Quigg refused to see him and told him to contact the Department to reschedule. The next day, Mr. Wright contacted the Department and was told by Rick Dunbar that another exam would be scheduled but that he would miss the May 8 starting date and would have to wait until the next entering class. Mr. Dunbar later called Mr. Wright to inform him that he was being removed from the eligibility list, and Mr. Wright received a letter to the same effect at the end of May. B. Holding of the District Court The district court granted

summary judgment for the Department. The court first held that Mr. Wright had not established that he was disabled within the meaning of the ADA because he neither produced evidence that his ankle injury was an impairment that substantially limited a major life activity nor adequately demonstrated that he was regarded as having such an impairment. The court also rejected Mr. Wright’s contention that the Department discriminated against him because of his disability by scheduling him for a special appointment with Dr. Quigg rather than giving him the same routine physical exam that the other candidates received.

In the court’s view, the record plainly showed that the special appointment was scheduled in response to Mr. Wright’s complaints and in an effort to determine how his ankle condition would affect his ability to participate in training and to perform the duties of a correctional officer. Finally, the court held, even if Mr. Wright had established a prima facie case of discrimination, the Department was still entitled to

summary judgment. The Department had articulated a legitimate nondiscriminatory reason for removing Mr. Wright from the eligibility list, and Mr. Wright had presented no evidence that the proffered reason was pretextual. II DISCUSSION A. We review de novo the district court’s decision to grant

summary judgment to the defendant. See Talanda v. KFC Nat’l Management Co., 140 F.3d 1090, 1095 (7th Cir.), cert. denied, — U.S. -, 119 S.Ct. 164, 142 L.Ed.2d 134 (1998). The grant of

summary judgment will be affirmed only if there exists no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Talanda, 140 F.3d at 1095. When determining whether the evidence of record would allow a reasonable jury to return a verdict for the nonmoving party, Mr. Wright, we must review the facts in the light most favorable to Mr. Wright and draw all reasonable inferences in his favor. See Murphy v. ITT Educ. Serve., Inc., 176 F.3d 934, 935 (7th Cir.1999); Talanda, 140 F.3d at 1095. Because issues of intent and credibility are especially crucial in employment discrimination cases, we must apply this

summary judgment standard with added vigor. See Talanda, 140 F.3d at 1095; Vanasco v. National-Louis Univ., 137 F.3d 962, 965 (7th Cir.1998). B. The ADA prohibits employers from discriminating “against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, ... and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). There are two types of disability discrimination claims under the ADA: disparate treatment claims and failure to accommodate claims. See Foster v.

Arthur Andersen, LLP, 168 F.3d 1029, 1032 (7th Cir.1999); Weigel v. Target Stores, 122 F.3d 461, 464 (7th Cir.1997). Mr. Wright advances both types of claims in this case: He alleges that the Department refused to hire him because of his disability and that the Department failed to interact with him regarding a possible accommodation at the training Academy. In order to establish a prima facie case of either disparate treatment or failure to accommodate, a plaintiff must first demonstrate that he has a “disability” within the meaning of the ADA. See Foster, 168 F.3d at 1032; DeLuca v.

Winer Indus., Inc., 53 F.3d 793, 797 (7th Cir.1995). The ADA provides a definition of “disability”: The term “disability” means, with respect to an individual— (

A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (

B) a record of such an impairment; or (

C) being regarded as having such an impairment. 42 U.S.C. § 12102(2). Major life activities include “caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” 29 C.F.R. § 1630.2(i). Mr. Wright does not argue that his ankle injury is an impairment that substantially limits a major life activity or that he has a record of such an impairment. Instead, he relies on the third definition of disability: “being regarded as having” an impairment that substantially limits one or more major life activities.

The regulations promulgated under the ADA provide further guidance on what it means to be “regarded as” having a disability under the ADA: (l)Is regarded as having such an impairment means:

(1) Has a physical or mental impairment that does not substantially limit major life activities but is treated by a covered entity as constituting such limitation;

(2) Has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or

(3) Has none of the impairments defined in paragraphs (h)(1) or (2) of this

section but is treated by a covered entity as having a substantially limiting impairment. 29 C.F.R. § 1630.2(l). The Interpretive Guidance provided in the regulations states: The third part of the [statutory] definition [of “disability”] provides that an individual who is regarded ... as having an impairment that substantially limits a major life activity is an individual with a disability. ... For example, suppose an employee has controlled high blood pressure that is not substantially limiting.

If an employer reassigns the individual to less strenuous work because of unsubstantiated fears that the individual will suffer a heart attack if he or she continues to perform strenuous work, the employer would be regarding the individual as disabled. The rationale for the “regarded as” part of the definition of disability was articulated by the Supreme Court in the context of the Rehabilitation Act of 1973 in School Board of Nassau County v. Arline, 480 U.S. 273, 107 S.Ct. 1123, 94 L.Ed.2d 307 (1987).

The Court noted that, although an individual may have an impairment that does not in fact substantially limit a major life activity, the reaction of others may prove just as disabling. “Such an impairment might not diminish a person’s physical or mental capabilities, but could nevertheless substantially limit that person’s ability to work as a result of the negative reactions of others to the impairment.” 480 U.S. at 283, 107 S.Ct. 1123.

Therefore, if an individual can show that an employer or other covered entity made an employment decision because of a perception of disability based on “myth, fear or stereo type,” the individual will satisfy the “regarded as” part of the definition of disability. If the employer cannot articulate a non-discriminatory reason for the employment action, an inference that the employer is acting on the basis of “myth, fear or stereotype” can be drawn. 29 C.F.R.App. to Pt. 1630, at 350. To demonstrate that the Department regarded him as disabled within the meaning of the ADA, Mr.

Wright points to the Department’s response to an interrogatory that asked “whether Defendant considered Plaintiff to be disabled.” R. 27, Ex. 6 at 15. The Department answered “yes” to that interrogatory. Mr. Wright submits that the Department’s interrogatory answer conclusively establishes that the Department regarded him as disabled within the meaning of the ADA, or that at least it creates a genuine issue of triable fact on that issue. We cannot accept this submission. The record is replete with evidence that the Department did not regard or treat Mr.

Wright’s ankle condition as a “disability” as that term is defined by the ADA — that is, an impairment that substantially limits a major life activity. It is undisputed that, at the end of the usual physical agility test, the Department considered Mr. Wright qualified to perform the physical aspects of a correctional officer’s duties. The Department’s records indicate that Mr. Wright, despite his ankle condition, performed successfully in a rigorous five-step physical agility test, which included a step test, a hang grip strength test, a lift and carry test, an agility test, and a push-up test. Mr.

Wright achieved the minimum requirements of each test with room to spare. His interviewers assured him that passing the physical agility tests meant he was more than capable of handling the duties of a correctional officer, the physical aspects of which include patrolling the facility and its perimeter, monitoring inmate activity from a tower while armed with a firearm, conducting inmate, cell, and area searches, and using physical force when necessary. A question arose only when Mr.

Wright raised doubt about his ability to perform the specific physical tasks required of a trainee for the specific job in question. Even then, the Department’s focus was on whether he could perform the duties required of a correctional officer in the Illinois penal system. At first, the Department took Mr. Wright at his word and informed him that, in light of his declaration that he was not up to the physical demands of the training, he would not be hired. The Department then decided to give the case a closer look. In referring Mr.

Wright to a physician for further physical evaluation in light of his protestations about performing physical tasks during training, the Department directed the physician to review a description of the training program and then, after evaluating Mr. Wright, to “indicate if Mr. Wright is capable of performing all of the duties that would be required of a correctional officer.” R. 27, Ex. 5. Although Mr. Wright argues that the Department treated him as disabled by scheduling him for the appointment with Dr. Quigg, we cannot accept this argument. The Department scheduled the appointment only after Mr.

Wright had himself questioned his ability to participate in certain aspects of the training program. When evaluated in this context, the Department’s interrogatory response to the question whether it considered him “disabled” is clearly insufficient to create a triable issue of fact. The regulations provide that to be “regarded as” disabled under the ADA, the individual must have been treated as disabled by the covered entity. See 29 C.F.R. § 1630.2(i)(1) and (3). There is simply nothing in the record from which a reasonable trier of fact could conclude that, at any time, the Department regarded Mr.

Wright as having an impairment that substantially limited a major life activity such as caring for himself or walking. The record does not demonstrate that the Department acted out of “myth, fear or stereotype” when it arranged for the examination by the doctor. 29 C.F.R. App. to Pt. 1630, at 350. To the contrary, the record as a whole shows that the Department’s request was merely an attempt to ascertain the extent of Mr. Wright’s claimed impairment — an impairment the Department had not even considered to be a problem until Mr.

Wright raised the possibility that his earlier injuries might impede him from meeting the specific demands of the particular job for which he was applying. Because Mr. Wright has failed to demonstrate that the Department regarded him as being substantially impaired in a major life activity, he has not shown that he is disabled as defined in the ADA and cannot establish this prerequisite for claiming disabihty discrimination under the ADA. We therefore must affirm the district court’s grant of

summary judgment to the Department. Conclusion For the foregoing reasons, the judgment of the district court is affirmed. Affirmed . In 1989, Mr. Wright was honorably discharged from the United States Marine Corps due to an ankle injury that he sustained while playing volleyball at a Navy weapons station. . The interrogatory further asked: "If the answer is yes, then state when and why Defendant began to consider Plaintiff to be disabled.” The Department answered: “Plaintiff's CMS 100 Employment Application shows he was discharged after an injury on the job from United Technologies Automotive.

The Plaintiff’s Certificate of Release or Discharge from Active Duty documents he was Honorably Discharged due to a Physical Disability with Severance Pay.” R.27, Ex.6 at 15. . The step test required the applicants to step up and down steps at a rate of 96 steps per minute for 3 minutes. The lift and carry test required the applicants to lift a box from the floor and carry it 200 feet without any rest stops longer than 15 seconds. The agility test required the applicants to scramble to their feet, maneuver around cones, and perform squat thrusts under timed conditions. .

We respectfully note that our dissenting colleague addresses only as an afterthought the essential question of whether the record can support the conclusion that the Department regarded Mr. Wright as being substantially impaired in a major life activity. In our view, however, this issue is central to the case and the evidence simply will not support this essential element of a disability claim under the Act. Mr. Wright made it clear to those running the program that, because of the condition of his ankle, he could not participate in the particular training activities established for this particular position.

He therefore was removed from the list of those eligible for this particular job. This action, either directly or by reasonable inference, will not support an allegation that the Department considered Mr. Wright as being substantially impaired in a major life activity.