In the
United States Court of Appeals
For the Seventh Circuit

No. 99-1582

Staceen M. Sinkler,

Plaintiff-Appellant,

v.

Midwest Property Management
Limited Partnership,

Defendant-Appellee.



Appeal from the United States District Court
for 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, Circuit
Judges.

      Kanne, Circuit Judge. Staceen Sinkler suffers
from a "specific phobia" involving the operation
of an automobile. Her condition makes her unable
to drive anywhere unfamiliar to her, and on at
least two occasions, her phobia forced her
employer, Midwest Property Management Limited
Partnership ("Midwest"), to make alternate travel
arrangements so she could perform her job as
regional sales manager. Midwest ultimately
discharged Sinkler. Sinkler filed suit against
Midwest, alleging that Midwest discharged her
because of her phobia and failed to make
reasonable accommodations for her condition, in
violation of the Americans with Disabilities Act
("ADA").

      Midwest moved for summary judgment, arguing that
Sinkler was not a qualified individual with a
disability within the meaning of the ADA because
Sinkler’s specific phobia did not substantially
limit her major life activity of working. The
district court granted Midwest’s motion. Sinkler
appeals, and we affirm.

I.   History

      Staceen Sinkler’s specific phobia causes her
intense anxiety, distress, avoidance and feelings
of derealization when she must drive in an
unfamiliar area. Because of these "spontaneous
panic attacks," Sinkler’s condition requires her
to take alternate forms of transportation or to
travel as a passenger on trips from her home in
Kenosha, Wisconsin, to such nearby cities as
Milwaukee or Chicago. Sinkler has always had a
fear of driving. Sinkler’s physician Dr. V. K.
Sharma diagnosed her condition in 1983 as a
"phobia" and in 1986 as "spontaneous panic
attacks." Her phobia always has hindered her
ability to secure employment that would require
her to drive outside of Kenosha.

      Sinkler’s fear of driving has not stymied her
ability to work within Kenosha. In fact, she has
worked within the city for more than thirty
years. She has held sales jobs for many
employers, serving as a sales representative for
a nursing home and as sales
manager/representative for Best Western in
Kenosha. Her previous employers knew about her
fear of driving and did not require her to drive
outside of the city. However, she has been forced
to decline promotions when non-local travel would
have been required.

      In July 1997, Sinkler was hired by Midwest to
work at its Illinois Beach Resort hotel, located
in Zion, Illinois. At the time Sinkler was hired,
neither she nor Midwest had determined what
duties she would be required to perform.
Therefore, Midwest never provided Sinkler with a
description of the job of sales manager, the
position she ultimately assumed. When she began
work, Sinkler found that one of her
responsibilities would be to travel throughout
Illinois. Concerned about her ability to market
the hotel throughout the state, she told her
supervisor Geri Patterson that she "had a problem
driving" and that she might need help to "work
that out." Patterson told Sinkler that they would
"work together for a while," so that Sinkler
could grow comfortable with the area that she
would be required to service.

      Shortly thereafter, the hotel’s general manager,
Steve Waak, asked Sinkler to travel to Chicago on
a sales trip. Sinkler informed Waak that she
would be unable to make this drive, and he
approved her request to take a train instead.
Later that year, Patterson asked Sinkler to
travel with her to Springfield, Illinois, on a
business trip. Sinkler asked Patterson to drive
on this trip because Sinkler felt that she would
be unable to drive that distance. Patterson
indicated that she was willing to drive them both
to Springfield, but Sinkler did not make the
trip. She was not required to travel to
Springfield because Waak decided that she needed
to remain at the hotel for other reasons.

      In November 1997, Drew Lombardo, a limited
partner in Midwest and director of the corporate
entity that was Midwest’s general partner, asked
Renee Shrewsbury to visit the hotel and to
uncover and report any problems that existed
there. During her week stay at the hotel,
Shrewsbury and Sinkler spoke once or twice about
whether Sinkler could take a business trip to
Springfield. Sinkler told Shrewsbury that she was
afraid to drive to Springfield and asked if she
would be permitted to fly there. Shrewsbury told
her that Lombardo would not pay for her to fly.
Later that week, Patterson, Midwest comptroller
Cheryl Overton, Shrewsbury and Sinkler met for a
brainstorming session. During the meeting,
Sinkler again told Shrewsbury that she was unable
to drive to Springfield because she was "really
handicapped with that." She told Shrewsbury that
if she and Patterson traveled together and
Sinkler grew familiar with the route, then she
might subsequently be able to make the trip by
herself. Shrewsbury reported the details of these
conversations to Lombardo, who remarked that he
also had heard that Sinkler was afraid to drive.

      In late November, with Patterson’s permission,
Sinkler engaged in competitive shopping of
surrounding hotels. The purposes of this activity
were to acquire referral business and to
determine the rates these hotels offered and the
quality of service the competition provided.
Around this time, Sinkler also believed that she
would be more efficient if she had access to a
computer. Sinkler arranged with an acquaintance
to have an unused computer owned by the hotel
programmed for her use. In return, Sinkler
treated the programmer to dinner at the hotel.
Patterson authorized both the idea of setting up
the computer and the idea of giving the
programmer a free dinner. Nonetheless, Lombardo
was unhappy with the decision to install new
software on the computer.

      On November 26, 1997, Sinkler participated in a
conference call with Lombardo, Shrewsbury and
others. During the call, Sinkler referred to the
conference call as a "waste of time," and this
infuriated Lombardo. Immediately after the
conference call, he decided to fire Sinkler. On
December 4, Sinkler entered her office and found
Lombardo there holding her personal belongings.
Lombardo told her that he was firing her and
blamed the firing on her "lying" to him by
failing to tell him that she was handicapped.
Lombardo also justified the firing on his
displeasure with the decision to swap software
installation for a free dinner at the hotel, his
belief that her job did not require competitive
shopping and on undocumented conflicts between
Sinkler and her co-workers.

      After her termination, Sinkler obtained a part-
time sales position at Sears in Kenosha. This
position did not require her to drive in
unfamiliar areas. Sinkler filed a complaint
against Midwest in federal district court,
alleging that Midwest had discriminated against
her by basing her termination on her condition
and by refusing to make accommodations that would
allow her to work despite her condition. Midwest
filed a motion for summary judgment, seeking
dismissal on the ground that Sinkler was not a
qualified individual with a disability within the
meaning of the ADA. Sinkler replied to this
motion, and both parties supplemented their
motions with affidavits.

      The district court granted Midwest’s motion for
summary judgment. The court observed that both
parties had stipulated to Sinkler’s impairment
but found that this impairment did not
substantially limit Sinkler’s ability to work.
The court based this finding on Sinkler’s thirty
years of prior work experience. Challenging the
district court’s characterization of the major
life activity that her condition impaired,
Sinkler asks us to reverse the district court’s
grant of summary judgment.

II.    Analysis

A.    Standard of Review

      We review de novo the district court’s grant of
summary judgment, drawing our own conclusions of
law and fact from the record before us. See
Feldman v. American Memorial Life Ins. Co., 196
F.3d 783, 789 (7th Cir. 1999). Summary judgment
is proper when "the pleadings, depositions,
answers to interrogatories, and admissions on
file, together with the affidavits, if any, show
there is no genuine issue as to any material fact
and that the moving party is entitled to a
judgment as a matter of law." Fed. R. Civ. P.
56(c); see also Celotex Corp. v. Catrett, 477
U.S. 317, 322-23 (1986). In determining whether
there exists any genuine issue of material fact,
we must construe all facts in the light most
favorable to the non-moving party and draw all
reasonable and justifiable inferences in favor of
that party. See Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). "A genuine issue for
trial exists only when a reasonable jury could
find for the party opposing the motion based on
the record as a whole." Pipitone v. United
States, 180 F.3d 859, 861 (7th Cir. 1999)
(citation omitted).
B.   Sinkler’s Disability

      The ADA prohibits employer discrimination
against an employee on the basis of a disability.
42 U.S.C. sec. 12112(a). However, to make a prima
facie case for discrimination, Sinkler must
demonstrate that her condition qualifies as a
disability within the meaning of the ADA. See
Feldman, 196 F.3d at 789. The statute defines
disability as:

(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 impairment; or

(C) being regarded as having such an impairment.

42 U.S.C. sec. 12102(2). If Sinkler’s condition
does not rise to the level of a disability as
defined by the act, then she cannot recover even
if Midwest terminated her expressly because of
her condition. See Skorup v. Modern Door Corp.,
153 F.3d 512, 514 (7th Cir. 1998). Moreover, if
Sinkler’s condition fails to fall within the
definition of impairment set forth in sec.
12102(2)(A), she cannot assert that Midwest
terminated her because she had a record of that
condition. See Davidson v. Midelfort Clinic,
Ltd., 133 F.3d 499, 510 n. 7 (7th Cir. 1998)
("What 12102(2)(B) requires is not simply a
diagnosis, but a record reflecting the kind of
impairment that would impose a substantial
limitation on one or more of the plaintiff’s
major 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 identified
a three-step test to determine if a physical or
mental condition met subsection (A) of the
definition of disability. First, we must
determine whether the condition claimed was a
physical or mental impairment. See id. Second,
"we identify the life activity upon which
[Sinkler] relies . . . and determine whether it
constitutes a major life activity under the ADA."
Id. Third, we determine whether the impairment
substantially limited this major life activity.
See id. Midwest concedes that Sinkler’s driving
phobia constitutes an impairment, so we focus on
the substance of Sinkler’s complaint, which is
that her impairment substantially limits a major
life activity.

1.   Major Life Activity

      Applying the second step of the Bragdon test,
we isolate the major life activity affected by
Sinkler’s impairment. An ADA claimant must
specify which major life activity has been
limited; only those grounds specifically raised
will be considered on appeal. See Bragdon, 118
S.Ct. at 2205 (restricting analysis of whether
HIV is an ADA disability to its limitation of
reproduction because "the case has been treated
as one in which reproduction was the major life
activity limited by the impairment," and "[i]t is
our practice to decide cases on the grounds
raised"). Equal Employment Opportunity Commission
regulations interpreting the ADA define "major
life activities" by providing a list that
includes "functions such as caring for oneself,
performing manual tasks, walking, seeing,
hearing, speaking, breathing, learning, and
working." 29 C.F.R. sec. 1630.2(i).

      Rather than "enunciating a general principle for
determining what is and is not a major life
activity," the ADA regulations provide "a
representative list," which is intended to be
"illustrative, not exhaustive." Bragdon, 118
S.Ct. at 2205. When analyzing whether an unlisted
activity constitutes a major life activity, "the
touchstone for determining an activity’s
inclusion under the statutory rubric is its
significance." Id. (internal citation omitted).
According to this standard, we consider unlisted
activities in contrast to listed activities to
determine whether the unlisted activity has equal
"significance." One standard by which
significance has been judged is whether "the
average person in the general population can
perform [the activity] with little or no
difficulty." Pack v. Kmart Corp., 166 F.3d 1300,
1305 (10th Cir. 1999). However, when considering
an activity’s significance, we ask whether an
activity is significant within the meaning of the
ADA, not whether it is significant to a
particular person. See Colwell v. Suffolk County
Police Dep’t, 158 F.3d 635, 642 (2d Cir. 1998).

      In her memorandum in opposition to Midwest’s
motion for summary judgment, Sinkler identified
"working" as the major life activity that her
impairment affected. She stated that her
"disability has created a major impact on her
ability to work over the years because she can
only hold jobs which will not require her to
drive in unfamiliar places." Accordingly, the
district court analyzed whether her impairment
substantially limited her ability to work. The
court found no substantial limitation and granted
Midwest’s motion for summary judgment. On appeal,
Sinkler claims that the district court
misunderstood which major life activity her
impairment limited. She now argues that her
phobia limits her major life functions of
"getting to and from her work assignments, . . .
thinking, concentrating, and basic personal
mobility."

      Sinkler has never before raised the issues that
her phobia affects her ability to think,
concentrate or limit her "basic personal
mobility," so Sinkler has waived these claims.
See Hoeller v. Eaton Corp., 149 F.3d 621, 625
(7th Cir. 1998). In support of her contention
that commuting to and from work is a major life
activity, Sinkler cites dicta from other circuits
that extol the importance of timeliness to work
performance. See Lyons v. Legal Aid Soc’y, 68
F.3d 1512, 1516 (2d Cir. 1995) (noting that "an
essential aspect of many jobs is the ability to
appear at work regularly and on time"); Carr v.
Reno, 23 F.3d 525, 530 (D.C. Cir. 1994) ("[A]n
essential function of any government job is an
ability to appear for work."). These statements
were made in the context of an ADA reasonable
accommodation analysis rather than ADA major life
activity analysis, and for this reason, they
provide little insight into whether commuting
should be considered an independent major life
activity. However, to the extent that such
statements are relevant, they suggest that
getting to and from work is important to
performance at work, but they do not suggest that
driving to work assignments is one of the "basic
functions of life." Knapp v. Northwestern Univ.,
101 F.3d 473, 479 (7th Cir. 1996). Because
working is a major life activity,/1 we
understand that, as a matter of law, the average
person must be able to get to and from work.
Nonetheless, in comparison with the major life
activity of working, or with any of the other
listed activities, we do not find commuting
equally significant. "Getting to and from work
assignments" is not a major life activity.
Rather, this task is either a sub-species of the
activity of "working" or of "driving."

      Although the Second Circuit has concluded that
driving is not the type of endeavor that may be
characterized as a major life activity, see
Colwell, 158 F.3d at 643, we need not reach that
issue. We believe that the major life activity
that Sinkler describes has not changed. Instead,
she has merely attempted to re-characterize the
activity of "working" as a narrower activity of
"getting to and from work assignments" in the
hope that we will reach a more favorable
determination of the extent to which her
impairment limits this activity. We conclude that
"working" is the major life activity that Sinkler
claims her impairment limits, and we will
evaluate her claim of substantial limitation from
this perspective.

2.   Substantial Limitation
      The final step of the Bragdon test is to
determine whether Sinkler’s impairment set a
substantial limit on her major life activity of
working. See Bragdon, 118 S.Ct. at 2202. The
district court found that because Sinkler was
able to hold a broad range of other jobs, her
inability to perform jobs that required travel to
unfamiliar areas did not constitute a substantial
limitation on her ability to work. Sinkler
contends that the district court erred because
her impairment constituted a significant barrier
for her personal employment possibilities.

      In the context of the major life activity of
working, "’[s]ubstantially limits’ means that a
person is either ’[u]nable to perform a major
life activity’ or is ’significantly restricted as
to the condition, manner or duration’ under which
the individual can perform the major life
activity as compared to the average person in the
general 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 a
particular employer" is insufficient to establish
substantial limitation. Byrne v. Board of Educ.,
979 F.2d 560, 565 (7th Cir. 1992). Instead, "the
impairment must substantially limit employment
generally." Id. While we note that substantial
limitation must be mea-sured by considering
Sinkler’s particular impairment to determine
whether it constituted a significant barrier to
her employment, taking her unique circumstances
into account, see id., Sinkler has the burden of
presenting evidence to identify how her
impairment limited an entire class or broad range
of jobs. See Skorup, 153 F.3d at 515.

      Sinkler has made two claims that demonstrate
ways in which her phobia limits her ability to
work: she was forced to turn down a promotion
that would have required her regularly to drive
to Milwaukee, and her phobia was the basis for
her discharge from Midwest. Even viewed in the
light most favorable to her, these facts do not
show that Sinkler’s phobia substantially limited
her ability to work. The fact that Sinkler has
been forced to decline promotions that would
require her to travel regularly outside of her
"comfort zone" suggests that Sinkler’s
impairment, when viewed in a light most favorable
to Sinkler, restricts her from holding any job
that would require her regularly to travel by car
to areas unfamiliar to her. Assuming as we must
that her termination from Midwest was based on
her impairment, this fact also indicates that her
impairment restricts her from taking sales jobs
that require frequent travel by car to unfamiliar
areas. Although many sales jobs require business
travel to unfamiliar areas, we do not believe
that these jobs amount to a broad enough class to
constitute a substantial limitation.

      Many facts in the record demonstrate that a
broad range of jobs remain open to Sinkler. As
the district court noted, Sinkler was employed
for thirty years in the Kenosha area prior to
working for Midwest, and she has produced no
evidence that she was impeded by her impairment
in the performance of those jobs. Sinkler was
able to find a job in sales after she was
discharged by Midwest, and Sinkler presents no
evidence of any limitation on her performance in
that job. In addition, although Sinkler may be
unable to accept employment that requires her to
drive outside of the Kenosha area, she presents
no evidence that she is unable to work for an
employer located outside the Kenosha area.
Sinkler’s impairment does not prevent her from
working for any employer which is easily
accessible by public transportation or car-pool.
This class of employers includes the large number
of companies located in the Chicago and Milwaukee
metropolitan areas. Finally, certain facts
indicate that Sinkler’s fear of unfamiliar places
can be overcome. Sinkler told Midwest that if she
could act as a passenger on trips to Springfield,
then she might feel more comfortable with making
the trip by herself. This indicates that
Sinkler’s impairment does not limit her from
working for employers who require driving to
places outside of her comfort zone, as long as
Sinkler is first allowed to travel with other
employees and become familiar with the trips she
must make.

      Sinkler did not provide the district court with
sufficient evidence to conclude that her
condition precludes her from taking any broad
range of jobs, such as all sales jobs. For this
reason, we find that her impairment does not
substantially limit her major life activity of
working and does not meet the definition of a
disability under sec. 12102(2)(A).

3.   Perception of Disability

      Sinkler also argues both that her record of
impairment led to her discharge, under sec.
12102(2)(B), and that Midwest discharged her
because it perceived that she was disabled within
the meaning of the ADA, under sec. 12102 (2)(C).
Sinkler provides no evidence that the record of
her impairment had any effect on her discharge,
so we find no error in the district court’s grant
of summary judgment as to the sec. 12102(2)(B)
claim. However, Sinkler claims that Drew
Lombardo, the CEO of Midwest, told her that she
was being fired because she had lied by not
informing him that she was "handicapped."
Lombardo apparently felt that Sinkler’s
impairment constituted a handicap to her ability
to perform the tasks required as regional sales
manager, one of which appears to be frequent
travel to unfamiliar areas.

      To prevail on the sec. 12102(2)(C) claim that
she was discriminated against by Midwest because
it believed she was disabled, Sinkler must show
that Midwest believed that she was unable to work
in a particular class or broad range of jobs as
required in the definition of disability under
sec. 12102(2)(A). See Skorup, 153 F.3d at 515.
Because we have found that Sinkler’s specific
phobia is not an impairment that substantially
limits her ability to work, to defeat Midwest’s
motion for summary judgment Sinkler must show
that Midwest believed her phobia limited the
class of jobs that Sinkler could perform more
broadly than her phobia actually limited her.
Sinkler provides no evidence to demonstrate that
Midwest believed that she was "disabled" within
the definition of the ADA or that it believed her
impairment would limit her ability to work at a
broad range of jobs.

      Sinkler claims that the evidence suggests that
Midwest believed her unable to drive to and from
work at all. Her testimony about Lombardo’s
statements does show, when viewed most favorably
for the plaintiff, that Midwest fired her because
of her impairment, that is her fear of driving to
unfamiliar places. However, the evidence that she
provides does not support the inference that
Midwest believed her unable to commute to work
generally. The hotel was located in Zion,
Illinois, which is some eight miles from Kenosha,
Wisconsin, but Midwest required Sinkler to drive
from Kenosha to Zion to go to work. From these
facts, we infer that Midwest knew that Sinkler
drove every day to work. Because Midwest did not
indicate that a history of tardiness or
absenteeism was a basis for Sinkler’s
termination, we infer that Midwest found no
problems with Sinkler’s regular commute, only
with her ability to drive to unfamiliar areas.
Sinkler has presented no other evidence from
which we reasonably may infer that Midwest
believed Sinkler was incapable of driving at all.
Her evidence only demonstrates that Midwest felt
that she was incapable of performing the driving
to unfamiliar areas which was required of a
regional sales manager. We find that Midwest did
not perceive Sinkler as having an impairment
which would substantially limit her ability to
perform any broad range of jobs.



III.   Conclusion
      We find that the district court did not err in
determining that Sinkler claimed "working" to be
the major life activity that her specific driving
phobia substantially limited. We find no error in
the district court’s conclusion that Sinkler’s
specific phobia did not substantially limit her
ability to work or in its conclusion that Midwest
did not perceive Sinkler to be disabled. For
these reasons, Sinkler’s condition does not meet
the definition of disability under the ADA. The
district court’s grant of summary judgment is

AFFIRMED.



/1 We note that the Supreme Court has recently
expressed concern even over whether "working"
should be considered a major life activity
because of the inherent circularity of a claim
made on this basis. See Sutton v. United Air
Lines, 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 Court
definitively excludes working as a major life
activity, we will follow the precedent of this
circuit and regard "working" as a major life
activity. See Skorup, 153 F.3d at 514-15; Weiler
v. Household Fin. Corp., 101 F.3d 519, 524-25
(7th Cir. 1996).
