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DENNIS PATTERSON, Plaintiff-Appellant, v. ILLINOIS
DEPARTMENT OF CORRECTIONS, Defendant-Appellee.
No. 01-3456
UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT
37 Fed. Appx. 801; 2002 U.S.
App. Lexis 12012
June 13, 2002, Decided
NOTICE:
RULES OF THE SEVENTH CIRCUIT
COURT OF APPEALS MAY LIMIT CITATION TO UNPUBLISHED OPINIONS. PLEASE REFER TO
THE RULES OF THE UNITED STATES COURT OF APPEALS FOR THIS CIRCUIT.
Dennis Patterson worked as a
correctional officer for the Illinois Department of Corrections (IDOC) at Hill
Correctional Center in Galesburg, Illinois. In 1995 Patterson refused to
undergo a mandatory tuberculosis test, and IDOC fired him. Patterson
subsequently brought this action under section 504 of the Rehabilitation Act of
1973, 29 U.S.C. § 794, alleging that IDOC discriminated against him based on
disability. The district court granted IDOC's motion for summary judgment, and
Patterson appeals. We affirm.
I.
Background
Dennis Patterson began working
for IDOC in 1990. As part of a pre-employment medical assessment, he underwent
a tuberculosis skin test. Patterson's results were negative, and he suffered no
adverse reaction to the test.
In 1992, as part of an annual screening,
Patterson took a tuberculosis skin test
[*802] called a "Mantoux test." n1 Patterson's results were negative,
but, shortly after the test was administered, he experienced weakness,
dizziness, disorientation, aches in the arm and shoulder, and labored
breathing. He was taken to the emergency room. Medical personnel assumed that
Patterson's episode was related to the Mantoux test, even though Patterson's
symptoms were not typical of an allergic reaction. Medical records reveal that
Patterson had a slightly low glucose level on the day he was tested.
At the annual screening in 1993, Patterson
stated on a health questionnaire that he had reacted positively to a prior
tuberculosis skin test. After speaking with health care personnel, however,
Patterson changed his questionnaire response to state that he had suffered an
allergic reaction to the test. Patterson's personal physician advised him not
to take the Mantoux test again. In 1993 and 1994, therefore, Patterson
submitted chest x-rays in lieu of undergoing the Mantoux test. Patterson's
chest x-rays during those years did not reveal active tuberculosis, but showed
some "chronic fibrotic changes" n2 in both lungs.
In April 1995, IDOC required
Mantoux testing for all employees who had not previously tested positive.
Patterson refused a direct order by Assistant Warden Dillman to submit to the
Mantoux test and was suspended from work for ten days. Patterson filed a
grievance with his union, which arranged for him to be seen by an independent
medical professional at IDOC's expense.
Patterson was subsequently examined by Dr.
Donald Graham, a specialist in infectious diseases, who concluded that Patterson
would not likely suffer adverse reactions to future Mantoux tests. Dr. Graham
stated that Patterson's symptoms were more characteristic of a
"hyperventilation reaction" than an allergic reaction. Dr. Graham did
recommend, however, that any future Mantoux test be administered in a hospital
setting with a Heparin lock. n3 He also acknowledged several alternatives to
the Mantoux test, including a tine test or a prophylactic course of Isoniazid,
ordinarily prescribed to those who test positive for tuberculosis exposure.
Serial chest x-rays would be a last resort, Dr. Graham noted, because x-rays
can detect active tuberculosis but not exposure to or early onset of the
disease.
After reviewing Dr. Graham's
report, IDOC demanded that Patterson take the Mantoux test or be fired.
Patterson refused and, in a written "request for accommodation" that
he hand delivered to Warden Jerry Gilmore, asked IDOC to accept a chest x-ray
in lieu of the Mantoux test. According to Patterson, Warden Gilmore responded
by calling Patterson "a kind of a troublemaker" and asserting that
"people like [Patterson] cause a lot of problems." IDOC subsequently
dismissed Patterson for refusing to submit to the Mantoux test.
[*803] Patterson filed suit in district
court, alleging that the condition that caused his adverse reaction to the 1992
tuberculosis test was a disability and that, by firing him, IDOC discriminated
against him in violation of section 504 of the Rehabilitation Act of 1973, 29
U.S.C. § 794, and the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101
et seq.
The district court found that
Patterson's sensitivity to the Mantoux test did not qualify as an actual
disability under either the Rehabilitation Act or the ADA. The court
reasoned that an allergy to a tuberculosis skin test did not substantially
limit Patterson's ability to function as a correctional officer or preclude him
from working in a class of jobs or a broad range of jobs in various classes.
The court therefore dismissed the Rehabilitation Act and ADA claims that relied
upon a theory of actual discrimination. Patterson's remaining ADA claims were
dismissed on Eleventh Amendment sovereign immunity grounds. The court also
struck Patterson's punitive damages request, finding that section 504 of the Rehabilitation Act did not allow
such a remedy. The court concluded, however, that Patterson's allegations were
sufficient to support his claims that he was disabled because he had a
"record of" and a "perceived" disability. Patterson,
therefore, was allowed to proceed under the Rehabilitation Act based on the
theory that IDOC discriminated against him because of his record of disability
and its perception that he was disabled.
After further discovery and briefing, IDOC moved for summary judgment on
Patterson's remaining Rehabilitation Act claims, and the district court entered
judgment in IDOC's favor. The court ruled that, because Patterson's sensitivity
to the Mantoux test was not an actual disability, Patterson's adverse reaction
to the test did not constitute a record of a disability. The court further
noted that Patterson continued to work without restrictions for years after
suffering the adverse reaction. Accordingly, the court concluded, a reasonable
jury could not find that IDOC considered Patterson to be disabled.
II.
Analysis
We
review a district court's grant of summary judgment de novo, drawing all
inferences in the light most favorable to the party opposing summary judgment.
Winfrey v. City of Chicago, 259 F.3d 610, 614 (7th Cir. 2001). Summary judgment
is appropriate only if the record reflects no genuine issue of material fact,
and the moving party is entitled to judgment as a matter of law. Id.
Patterson submits that his dismissal from IDOC constituted
discrimination on the basis of disability in violation of section 504 of the
Rehabilitation Act. To merit relief under the Rehabilitation Act, Patterson
must first establish that he is an individual with a disability. See Stanley v. Litscher, 213 F.3d 340, 344
(7th Cir. 2000). For the purposes of the Rehabilitation Act, an
"individual with a disability" is "any person who (i) has a
physical or mental impairment which substantially limits one or more of such
person's major life activities; (ii) has a record of such an impairment; or
(iii) is regarded as having such an impairment." 29 U.S.C. § 705 (20)(B);
see also Sanchez v. Henderson, 188 F.3d 740, 744 (7th Cir. 1999). Patterson
does not challenge the district court's finding that he meets neither of the
test's first two prongs.
Instead, Patterson zeroes in on the test's third prong and argues that
he established disability by presenting evidence that IDOC "regarded"
him as impaired, and terminated him on that basis. A plaintiff may demonstrate
that an employer regarded or perceived him as impaired [*804] by showing that
"1) a covered entity mistakenly believes that a person has a physical
impairment that substantially limits one or more major life activities, or 2) a
covered entity mistakenly believes that an actual, nonlimiting impairment
substantially limits one or more major life activities." Sutton v. United
Airlines, 527 U.S. 471, 489, 144 L. Ed. 2d 450, 119 S. Ct. 2139 (1999). Relying
on the second approach, Patterson argues that his "actual, nonlimiting
impairment" is his sensitivity to the Mantoux test. To prevail on this argument, then, Patterson
must establish IDOC's belief that his sensitivity to the Mantoux test impaired
his ability to perform the major life activity of working.
Patterson
suggests that IDOC terminated him based on fear of contagion and analogizes his
case to School Board of Nassau County v. Arline, 480 U.S. 273, 94 L. Ed. 2d
307, 107 S. Ct. 1123 (1987). In Arline, the Supreme Court held that a
schoolteacher afflicted with contagious tuberculosis was a
"handicapped individual"
within the meaning of the Rehabilitation Act, prohibiting discrimination
against handicapped individuals solely by reason of their handicap. Id. at 284-85, 288. In reaching this
conclusion, the Court found that the teacher's recurrent tuberculosis
constituted a disability, and the school board's fear that her tuberculosis was
contagious, by itself, was not sufficient reason to terminate her. Patterson's
situation is not at all comparable to Arline because, unlike Arline, Patterson does not suffer from an
actual disability. While
Arline's chronic tuberculosis was severe enough to require hospitalization,
nothing in the record suggests that Patterson ever suffered tuberculosis or
even experienced a positive reaction to a tuberculosis test.
Patterson also contends that
IDOC's mandatory Mantoux testing is an impermissible "blanket policy"
or "100% rule", which, in the context of disability law, means that
the testing is automatically and improperly required of all disabled workers
without any individualized assessment. See, e.g., Hutchinson v. United Parcel
Serv., 883 F. Supp. 379, 396-97 (N.D. Iowa 1995) (impermissible policy
summarily prohibited all injured employees from returning to work until they were "100%
healed"); Sarsycki v. United Parcel Serv., 862 F. Supp. 336, 341-42 (W.D.
Okla. 1994) (impermissible policy prohibited all insulin dependent diabetics
from working as drivers without individualized assessment of their qualifications).
IDOC's tuberculosis testing requirement is a blanket policy, Patterson asserts,
because it requires all employees to take the Mantoux test and does not allow
the alternative of chest x-rays for individuals like himself who have reacted
adversely to the test in the past. In all the cases that Patterson cites to
support his "blanket policy" claim, however, the policy at issue was
applied only to a group of workers already identified as disabled. Hutchinson,
883 F. Supp. at 396-97; Sarsycki, 862 F. Supp. at 341-42. In other words, the
"blanket" did not cover all employees, but only those employees who
were disabled. See Henderson v.
Ardco, 247 F.3d 645, 653 (6th Cir. 2001) ("All courts that have examined
the question . . . agree that a 100% rule is impermissible as to a disabled
person--but one must first be disabled."). The tuberculosis testing
requirement to which Patterson objects applies to all correctional officers at
Hill Correctional Center--not only those identified as disabled--and therefore
does not constitute an impermissible blanket policy.
As
further evidence that IDOC perceived him as disabled, Patterson points to an
exchange in which Warden Gilmore called him a "troublemaker" and made
a reference to "people like [Patterson]." According to Patterson,
such comments can be interpreted only as disparaging statements [*805] about
the class of "individual[s] with a disability presenting a request for
accommodation." Nothing in the terms "troublemaker" or
"people like [Patterson]"
suggests that Warden Gilmore, or IDOC, believed Patterson to be
disabled, however. Patterson has presented no other evidence upon which to
conclude that IDOC believed him to be disabled and acted with discriminatory
intent in firing him.
At
oral argument, Patterson proposed yet another basis for concluding that IDOC
discriminated against him--that IDOC rigidly applied its Mantoux testing
requirement to him but relaxed it for another employee. Marlene Guthrie, the
Health Care Administrator for Hill Correctional Center, had tested positive for
tuberculosis in the past, and, as a result, was not required to take the
Mantoux test. According to Patterson, that Guthrie's positive reaction exempted
her from the test--while his adverse reaction did not--demonstrates that IDOC subjected him to discrimination. But Patterson did not
present this theory in the district court, nor did he brief it on appeal, and
we therefore do not consider it. See Washington v. Indiana High School Athletic
Ass'n, Inc., 181 F.3d 840, 843 n.4 (7th Cir. 1999).
Because Patterson is not disabled and IDOC does not perceive him to be, his case falls outside the scope of the Rehabilitation Act. Summary judgment was appropriate, and we need not reach the issue of punitive damages.
AFFIRMED.
FOOTNOTES:
n1 Several tests for
tuberculosis are available: the Mantoux test; other skin tests which, like the
Mantoux test, use a purified protein derivative (PPD); and the tine test, which
involves puncturing the skin with a four-pronged apparatus. The Mantoux test is
considered the most accurate testing method for tuberculosis. CLINICAL
LABORATORY TESTS 616 (Fandek et. al. eds., 1995). The exact type of
tuberculosis skin test administered to Patterson when he first joined IDOC in
1990 is unknown.
n2 Fibroid tissue forms in
an organ as a reparative or reactive process and can have many different causes. Stedman's Medical Dictionary 671
(27th ed. 1999).
n3 Heparin is an
anti-coagulant, which prevents blood clotting.