In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3640
T ERESA K OTWICA,
Plaintiff-Appellant,
v.
R OSE P ACKING C OMPANY, INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 07 C 05262—Joan Humphrey Lefkow, Judge.
A RGUED O CTOBER 19, 2010—D ECIDED M ARCH 22, 2011
Before C UDAHY and R OVNER, Circuit Judges, and
A DELMAN, District Judge.1
C UDAHY, Circuit Judge. On March 13, 2006, Rose Packing
Company, Inc. fired Teresa Kotwica, a general laborer in
its meat packing plant, because it believed that her newly-
imposed medical restrictions made it impossible for her
1
The Honorable Lynn S. Adelman, District Judge for the
Eastern District of Wisconsin, sitting by designation.
2 No. 09-3640
to perform her job duties. Kotwica sued Rose Packing,
alleging that its decision to fire her violated the American
with Disabilities Act’s (ADA) anti-discrimination provi-
sions. The district court granted summary judgment
against Kotwica, finding that she had failed to present
sufficient evidence establishing that she qualified for
protection under the ADA. We affirm.
I. Background
In 1996, Teresa Kotwica began working as a general
laborer at Rose Packing Company, Inc., an Illinois corpora-
tion that operates a meat packing facility on Chicago’s
South Side. Rose Packing employs several hundred indi-
viduals as general laborers at its plant. All of the general
laborers are members of the United Food and Com-
mercial Workers International Union, Local 1546, and
the terms of the general laborers’ employment is set
forth in a collective bargaining agreement that the
Union negotiated with Rose Packing. In accordance with
this agreement, general laborers perform a number of
functions at the plant and are regularly rotated through
various positions within different departments. The
work performed by the general laborers includes tasks
involved in the boning, curing, processing, smoking,
packing, cooking and shipping of various meat products.
In accordance with the terms of the collective bargaining
agreement, Rose Packing requires all of its general
laborers to rotate through all of these tasks. The company
has provided two justifications for its rotation policy:
(1) the company needs to be able to shift laborers to
No. 09-3640 3
various positions to compensate for fluctuations in the
types of tasks it needs performed and (2) the rotation
helps minimize the risks posed by repetitive motion
workplace injuries.
During the period of time relevant to Kotwica’s
claim, Rose Packing had a return to work policy that, on
its face, strictly prohibited individuals who suffered non-
work-related injuries from returning to work if their
injuries left them with any medical restrictions. Under
this policy, only individuals with full medical releases
from their medical providers were permitted to return
to their positions. At some point subsequent to Kotwica’s
termination, Rose Packing amended its return to work
policy. The company’s new policy no longer distin-
guishes between personal and work-related injuries
and states that it will attempt to accommodate all em-
ployees’ injury-related restrictions.
Toward the end of 2005, Kotwica’s doctor recom-
mended that she have a total hip replacement. Shortly
thereafter Kotwica notified Rose Packing that she would
be undergoing surgery and that she would be taking
twelve weeks of leave in order to recuperate. Linda
Madlener, Rose Packing’s in-house nurse, told Kotwica
in November of 2005 that the company was expecting
her to return to work without any medical restrictions
at the end of her twelve-week leave. Even if Madlener
had not provided Kotwica with this notification, the
record suggests that Kotwica would have known of Rose
Packing’s return to work policy, as Rose Packing had
previously required her to obtain a full medical release
4 No. 09-3640
after she had taken a leave of absence related to a
personal injury.
Kotwica underwent hip replacement surgery on Decem-
ber 1, 2005, and, approximately twelve weeks later, at-
tempted to return to her general laborer position. At
the beginning of February of 2006, Rose Packing received
a return to work authorization letter prepared by
Kotwica’s physician that indicated that Kotwica would
be unable to perform a number of physical activities that
were involved in the performance of a general laborer’s
duties. Rose Packing communicated with Kotwica’s
doctor and informed him that any permanent restrictions
would prevent Kotwica from being able to return to
work. The physician revised his authorization letter,
which then indicated that Kotwica was permanently
restricted from “heavy lifting, squatting, crawling or
climbing” and that she could not lift more than twenty-
five pounds.
Because Kotwica had not provided Rose Packing with
an authorization letter that conformed with its policy,
Rose Packing requested that she meet with the com-
pany’s in-house physician for an alternative assessment
of her capabilities. On March 13, 2006, Kotwica met with
Dr. Joseph Laluya, the company’s doctor, who per-
formed a return to work physical evaluation. One part
of this evaluation required returning general laborers to
show that they could lift at least fifty pounds, a task
that Kotwica could not perform without violating her
personal physician’s orders. Laluya deferred to Kotwica’s
physician’s orders and did not ask Kotwica to complete
No. 09-3640 5
this task. In his post-examination report, he indicated
that Kotwica could not complete the physical ability test
and that he was not clearing her to return to work. Later
that day, Rose Packing notified Kotwica that she was
being terminated in accordance with the company’s
return to work policy.
On September 28, 2007, Kotwica filed a single-count
complaint alleging that Rose Packing violated the Ameri-
cans with Disabilities Act by firing her due to her
medical restrictions. On November 3, 2008, the parties
filed cross-motions for summary judgment. On Septem-
ber 25, 2009, the district court granted Rose Packing’s
request for summary judgment, finding that Kotwica
had not established that she qualified for protection
under the ADA. Kotwica filed a timely appeal from the
district court’s judgment.
II. Discussion
Kotwica’s suit against Rose Packing presents a single,
relatively straightforward disability discrimination claim.
She claims that Rose Packing ran afoul of the ADA when
it relied on her physical limitations as grounds for
refusing to let her return to work after her hip replace-
ment surgery. She states that her post-surgery medical
restrictions would not have prevented her from being
able to perform a general laborer’s essential duties and
argues that, even if her restrictions might have hindered
her ability to do certain tasks, Rose Packing failed to
meet its obligation to reasonably accommodate her lim-
itations. On appeal, Kotwica contends that, at a mini-
6 No. 09-3640
mum, she presented the district court with evidence
sufficient to create genuine issues of fact and asks us to
reverse the district court’s grant of summary judgment.
We review a district court’s grant of summary judg-
ment under the de novo standard, Narducci v. Moore,
572 F.3d 313, 318 (7th Cir. 2009), examining the record
in the light most favorable to the non-moving party,
Trade Fin. Partners, LLC v. AAR Corp., 573 F.3d 401, 406
(7th Cir. 2009). In order to establish a prima facie case
of failure to accommodate in accordance with the ADA, “a
plaintiff must show that: (1) she is a qualified individual
with a disability; (2) the employer was aware of her
disability; and (3) the employer failed to reasonably
accommodate the disability.” EEOC v. Sears, Roebuck &
Co., 417 F.3d 789, 797 (7th Cir. 2005). To survive a
motion for summary judgment, a plaintiff must present
the court with evidence that, if believed by a trier of fact,
would establish all three elements of her claim. Ekstrand
v. Sch. Dist. of Somerset, 583 F.3d 972, 975 (7th Cir. 2009).
The district court based its grant of summary judg-
ment against Kotwica’s claim on its finding that she had
failed to produce evidence sufficient to create a genuine
factual dispute as to the first element of her prima
facie case, i.e., that she is a qualified individual with
a disability. Given this, our review is focused on evalu-
ating whether the district court’s decision was ade-
quately supported by the record, taking into account all
of the evidence submitted by the parties as well as ap-
plicable precedents and statutory provisions.
No. 09-3640 7
The version of the ADA that was in effect when Kotwica
was terminated 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.” 42 U.S.C. § 12111(8)
(amended 2009). It further specifies that an individual
has a disability if she possesses “(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(1). Given these
definitions, it is clear that an individual qualifies for
protection under the ADA only if she (1) is a qualified
individual with a disability and (2) is able to perform the
essential functions of the relevant employment position.
Kupstas v. City of Greenwood, 398 F.3d 609, 611 (7th Cir.
2005); Amadio v. Ford Motor Co., 238 F.3d 919, 925-27 (7th
Cir. 2001). Because we find that the district court was
correct in finding that Kotwica failed to satisfy the first
part of this test, our discussion focuses exclusively on
this issue.
The ADA provides three ways in which a person can
be considered a qualified individual with a disability.
42 U.S.C. § 12102(1). Because Kotwica has consistently
maintained that her hip problems did not actually
impair her ability to engage in the major life activity of
working, we do not have to consider whether she is
a qualified individual with a disability under subsec-
tion (A) of 42 U.S.C. § 12102(1). This leaves us to consider
whether Kotwica produced evidence sufficient to create
8 No. 09-3640
a genuine factual dispute over whether she qualifies
because she had a “record of” impairment, 42 U.S.C.
§ 12102(1)(B), or because Rose Packing “regarded [her]
as having” an impairment, 42 U.S.C. § 12102(1)(C). If
Kotwica cannot establish that she is a qualified individual
with a disability, then her claim automatically fails, as
she bears the burden of showing that she falls within
the scope of the ADA’s anti-discrimination provisions.
See Squibb v. Mem’l Med. Ctr., 497 F.3d 775, 786 (7th Cir.
2007).
Kotwica failed to show that she has a record of being
impaired from being able to perform any major life activ-
ity. In order for an individual to qualify as disabled
under subsection (B) of 42 U.S.C. § 12102(1), she must
have “a history of . . . a mental or physical impairment
that substantially limits one or more major life activ-
ities.” 29 C.F.R. § 1630.2(k). While Kotwica did present the
court with various documents establishing that she had
hip problems for an extended period of time prior to
surgery, the district court was correct to conclude that
this evidence did not satisfy her burden. In order to
survive Rose Packing’s motion for summary judgment,
Kotwica needed to produce evidence indicating that
her hip problems substantially limited her ability to
engage in a major life activity. Not only did Kotwica’s
evidence fail to establish this point, but other evidence
before the court established that the opposite was true.
Prior to her surgery, Kotwica’s problems were not
serious enough to stop her from working on a regular
basis; indeed, in the years preceding her operation, she
was able to work in the relatively demanding general
No. 09-3640 9
laborer position at Rose Packing’s plant.2 Following her
surgery, Kotwica has claimed that she is in better
physical condition than she was previously and has
admitted to working as a receptionist, office inspector
and quality inspector for other employers. It is clear that
Kotwica’s problems never substantially impaired her
ability to engage in the life activity of working and that
she does not have the type of past record that would
place her within the group of individuals that the ADA
protects. See Sinkler v. Midwest Prop. Mgmt. Ltd. P’ship, 209
F.3d 678, 683 (7th Cir. 2000) (stating that “if [a plaintiff’s]
condition fails to fall within the definition of impairment
set forth in § 12102(1)(A),” it cannot provide the basis
for a claim based on having a record of impairment).
Kotwica has also failed to show that Rose Packing
regarded her as being disabled. A plaintiff seeking to
qualify as disabled under subsection (C) of § 121012(1)
must show that the defendant employer believed that
she suffered from a physical or mental impairment that
substantially impaired her ability to work. Sinkler, 209
F.3d at 686. It is not enough, however, for such a plain-
tiff to prove that the defendant believed that her impair-
ment limited her ability to do a particular job. Rather,
she must show that the defendant thought that her im-
2
Kotwica’s hip problems did prevent her from working at
least once prior to her surgery. However, given the short
duration of this break and the fact that it appears that it was
an isolated incident, this does not provide grounds for
finding that Kotwica has a record of an impairment that
substantially impaired her ability to work.
10 No. 09-3640
pairment was serious enough to affect her ability to
perform a class or range of jobs. Davidson v. Midelfort
Clinic, Ltd., 133 F.3d 499, 510-11 (7th Cir. 1998).
It is undisputed that Rose Packing was aware of
Kotwica’s hip replacement surgery and the limitations
that resulted from it. It is also clear that Rose Packing
knew that Kotwica’s personal doctor had stated that she
could not lift objects greater than 25 pounds and that
Rose Packing considered this to be the type of permanent
medical restriction that would prevent her from being
able to perform the tasks required of general laborers.
These facts alone, however, are not enough to establish
that Rose Packing considered Kotwica to be unable to
work generally. See Fredrickson v. United Parcel Serv., Inc.,
581 F.3d 516, 523-24 (7th Cir. 2009); EEOC v. Schneider, 481
F.3d 507, 510-512 (7th Cir. 2007). In order to meet her
burden, Kotwica needed to produce objective evidence
establishing that Rose Packing considered her restric-
tions to disqualify her from a broad class of jobs.
Unfortunately for Kotwica, all of the evidence pre-
sented to the trial court indicates that Rose Packing did
not take such a dire view of her employment prospects.
At Kotwica’s termination meeting, Rose Packing’s com-
pany nurse stated that Kotwica’s restriction merely pre-
cluded her from working as a general laborer at the plant.
The nurse also noted Kotwica’s computer and language
skills and indicated that she thought Kotwica would be
able to easily find a job after leaving the plant. Both of
these statements indicate that Rose Packing did not
consider Kotwica’s impairments to disqualify her from
No. 09-3640 11
working in a variety of jobs. Especially in light of the fact
that Kotwica has failed to identify any evidence that
unambiguously indicates that Rose Packing viewed her
restrictions as broadly inhibiting her ability to work, these
statements provide adequate grounds to grant summary
judgment against Kotwica on this issue. See Kupstas,
398 F.3d at 614.
Kotwica argues against this conclusion by claiming that
Rose Packing must have viewed her as substantially
impaired from being able to work because it did not
simply exempt her from all of the tasks she could not
perform or, alternatively, because it did not reassign her
to a non-laborer position. Neither of these points, how-
ever, help her cause. First, we have previously held that
the ADA does not impose an obligation on employers
to create a new position, which contains a subset of the
duties performed by those in an existing position, for
individuals with permanent impairments. See Watson v.
Lithonia Lighting, 304 F.3d 749, 752 (7th Cir. 2002).
Second, plaintiffs, when alleging that an employer’s
failure to reassign them violated the ADA’s anti-discrimi-
nation provisions, bear the burden of showing that there
is a vacant position in existence for which they are quali-
fied. Ozlowski v. Henderson, 237 F.3d 837, 840 (7th Cir.
2001); Hansen v. Henderson, 233 F.3d 521, 523 (7th Cir.
2000). Kotwica failed to meet this burden since she
did not present any evidence establishing that there
were vacant positions at Rose Packing at the time of her
termination.
12 No. 09-3640
III. Conclusion
For the reasons stated above, the ruling of the district
court is
A FFIRMED.
3-22-11