In the
United States Court of Appeals
For the Seventh Circuit

No. 00-4326

DOREE STEIN,

Plaintiff-Appellant,

v.

JOHN ASHCROFT, United States Attorney
General, and IMMIGRATION AND NATURALIZATION SERVICE,

Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 C 2393--Blanche M. Manning, Judge.

Argued November 5, 2001--Decided March 21, 2002


  Before COFFEY, ROVNER and EVANS, Circuit
Judges.

  COFFEY, Circuit Judge. Plaintiff-
Appellant Doree Stein is employed by the
Immigration and Naturalization Service
(INS) Chicago District Office as a
District Adjudication Officer (DAO).
Stein brought suit against her employer
alleging that the defendants failed to
accommodate her disability in violation
of the Rehabilitation Act of 1973, 29
U.S.C. sec. 794a. The district court
granted the defendants’ motion for
summary judgment, and Stein appeals. We
affirm.

BACKGROUND

  Stein began employment with the INS
Chicago District Office as a DAO in 1988.
Her primary job responsibilities were
interviewing applicants for United States
citizenship and generating reports of
those interviews, assisting applicants in
the completion of the necessary forms, as
well as processing completed
applications. Stein’s duties were
primarily performed in her office at INS,
but at times she would travel beyond the
confines of the office (to places such as
community centers, libraries, and
churches) anywhere from one to five days
per week to conduct "outreach"
assignments. While working outside the
office, Stein taught applicants about the
procedure of becoming a U.S. citizen and
conducted interviews. The outreach
program required Stein to engage in
moderate physical exertion not required
in the office, such as standing for long
periods, transporting and carrying boxes
of files and office supplies, and setting
up folding tables and chairs.

  In May 1994, Stein was diagnosed as
suffering from chronic upper left
extremity pain and "myofacial pain
syndrome,"/1 as the cumulative result
of several injuries (including a car
accident and an incident in which Stein
was physically attacked). Stein claims
that this medical problem made it
difficult for her to fully extend her
left arm and to lift and carry heavy
objects, including the boxes she
transported to and from outreach
assignments. In June 1994, Stein’s
treating physician sent a letter to the
INS recommending that Stein "not do as
much heavy lifting as she had been
previously," but added that it was
otherwise "acceptable that she goes out
into the field for her work." In a
subsequent letter to Stein’s employer
dated October 13, 1994, Stein’s doctor
amended his recommendation, stating that
Stein was "released to sedentary
employment . . . . She should not have
duties that call her to perform
repetitive motions of her left hand more
than 33% of the time. She will need to
have computer arm rests and
equipmentsufficient to minimize the
quantity of her typing (i.e. efficient
word processing software)." An
occupational therapist was brought in to
evaluate Stein’s work station at INS and
made recommendations intending to
minimize the stress placed on the left
side of her body. Furthermore, it was
suggested that she use a properly
adjusted "ergonomic" chair with proper
posture, and that she position frequently
used items in her work area more
efficiently. In December 1994, Stein’s
doctor prescribed the use of a computer
"set up in an ergonomically correct
position" so as to "decrease the chance
of overload to her neck, shoulder, arm,
wrist and hand structures."

  A month later, in January 1995, Stein’s
supervisor advised her that she would no
longer be assigned to "outreach" duties.
The supervisor explained that the work
responsibilities and schedules of other
INS employees did not make it feasible
for someone to be available to assist
Stein with transporting, carrying and
lifting boxes of files. Additionally,
Stein was informed that INS did not want
her to risk further injury by attempting
to lift heavy files, move and assemble
furniture, or spend long periods sitting
in non-adjustable chairs. In spite of the
removal of outreach assignments from her
duties, Stein’s salary, title, and other
job responsibilities remained the same.
Stein continued to report to work every
day and perform the duties required of a
DAO.

  In March 1995, Stein filed a complaint
with the Equal Employment Opportunities
Commission (EEOC) alleging that the
removal of her outreach duties amounted
to discrimination on the basis of a
disability. While the EEOC’s
investigation was in progress, the INS
requested a current medical evaluation of
Stein’s condition, and in April 1996 her
physician wrote to INS that Stein was
"physically able to perform the duties as
a DAO," and was "able to work at a work
site for a scheduled eight hour period of
time, five days per week." The report
further noted that the doctor had not
seen Stein for a period of eleven months
for any treatment or evaluation, and that
it was his "impression that she had been
back to work full time without any
restrictions in terms of light duty at a
desk."

  In January 1998, the EEOC issued a
decision finding that Stein had not been
discriminated against on the basis of a
physical disability. Stein filed this
action alleging that the INS’ decision to
discontinue her outreach duties
constituted a failure to accommodate her
physical disability in violation of the
Rehabilitation Act of 1973, 29 U.S.C.
sec. 794a. The district court granted the
defendants’ motion for summary judgment
on the ground that Stein had failed to
present evidence sufficient to establish
that she was "disabled" within the
meaning of the Rehabilitation Act. Stein
appeals.

DISCUSSION

  The issue on appeal is whether the
district court properly awarded summary
judgment to the defendants on the grounds
that Stein was not "disabled" within the
meaning of the Rehabilitation Act of
1973. The district court’s grant of
summary judgment is reviewed de novo.
Sinai Hospital v. Shalala, 196 F.3d 703,
707 (7th Cir. 1999).

  Section 505 of the Rehabilitation Act
provides a private right of action for
federal employees alleging employment-
related discrimination on the basis of a
disability. Hamm v. Runyon, 51 F.3d 721,
724 (7th Cir. 1995); 29 U.S.C. sec. 794a.
To succeed on a claim under the
Rehabilitation Act, a plaintiff "must
meet the threshold burden of establishing
that he is ’disabled’ within the meaning
of the statute." Roth v. Lutheran General
Hospital, 57 F.3d 1446, 1454 (7th Cir.
1995).

  For purposes of the Rehabilitation Act,
a person is "disabled" if he or she "has
a physical or mental impairment which
substantially limits one or more of such
person’s major life activities." Hamm, 51
F.3d at 724; 29 U.S.C. sec. 706(8)(B).
Major life activities are defined as
"functions, such as caring for oneself,
performing manual tasks, walking, seeing,
hearing, speaking, breathing, learning
and working." Roth, 57 F.3d at 1454; 29
C.F.R. sec. 1613.702(c).

  The parties agree that Stein has a
"physical impairment," but disagree as to
whether the impairment "substantially
limits a major life activity." Stein
argues that the district court erred in
concluding that her impairment does not
substantially limit her major life
activity of working, or substantially
limit major life activities other than
work.


  1.   The Major Life Activity of Working.

  When the major life activity under
consideration is that of working, a
plaintiff must demonstrate that "she was
significantly restricted in the ability
to perform either a class of jobs or a
broad range of jobs in various classes as
compared to the average person having
comparable training, skills and
abilities." Davidson v. Midelfort Clinic,
Ltd., 133 F.3d 499, 506 (7th Cir. 1998);
see also Sutton v. United Airlines, Inc.,
527 U.S. 471, 491 (1999) (a plaintiff
must show, "at a minimum," that she is
"unable to work in a broad class of
jobs.") Further, "[t]he inability to
perform a single, particular job does not
constitute a substantial limitation in
the major life activity of working."
Sutton, 527 U.S. at 491, quoting 29
C.F.R. sec. 1630.2(j)(3)(i). In other
words, "the impairment must substantially
limit employment generally." Contreras v.
Suncast Corp., 237 F.3d 756, 762 (7th
Cir. 2001)./2

  Stein’s argument concerning the major
life activity of working reflects a
misconception of the applicable legal
standards, which her appellate brief
fails to cite or address. Stein contends
that her removal from outreach duties re
sulted in lost opportunities for overtime
pay, the "loss of merits points necessary
for promotion," and a limitation on her
ability to socialize and exchange ideas
with her fellow DAOs. These allegations,
even if true, do not fulfill Stein’s
burden to demonstrate that her impairment
substantially limits her ability to work.
We will not search the record in an
attempt to make Stein’s arguments for
her. See Tyler v. Runyon, 70 F.3d 458,
465 (7th Cir. 1995) ("[I]f an appellant
fails to make a minimally complete and
comprehensible argument for each of his
claims, he [or she] loses regardless of
the merits of those claims as they might
have appeared on a fuller
presentation.").

  Stein has failed to present any evidence
in support of the theory that her
physical impairment precludes her from
working in a broad class of jobs.
Further, she does not dispute the
district court’s finding that she
continues to hold the same position with
INS that she held prior to the onset of
her physical impairment, with the same
title, salary, and general duties (other
than outreach) of a DAO. Stein’s
inability to lift and carry heavy boxes
of files to the extent necessary to
perform her duties outside the office
does not rise to the level of a
restriction on her ability to work in a
broad class of jobs. Contreras v. Suncast
Corp., 237 F.3d 756, 763 (7th Cir. 2001)
(holding that the existence of a
physician-imposed lifting restriction is
insufficient to establish that an
individual is precluded from working in
the "broad class of jobs" necessary to
establish the existence of a disability).
A plaintiff’s inability to perform "one
narrow job for one employer" is
insufficient to establish a disability.
Davidson, 133 F.3d at 506. We are
convinced that the district court
properly concluded that Stein has failed
to meet her burden to demonstrate that
her physical impairment substantially
limits her major life activity of
working, or that she is regarded as
having such a limitation. While Stein’s
impairment may preclude her from lifting
and carrying heavy objects on outreach
assignments, this is but one single
aspect of her duties, and does not
overcome her demonstrated ability to
successfully perform the numerous other
tasks required of her job.


  2. Major Life Activities Other than
Working.

  Stein next argues that her physical
impairment has substantially limited
"major life activities" other than
working. She contends that her impairment
has caused "loss of sleep, impaired
sexual relations, inability to
participate in sports, inability to cut
her food and inability to brush her
hair." The only support for the existence
of these physical limitations is Stein’s
own affidavit filed with the court, in
which she merely states in conclusory
fashion that these problems existed,
without any factual support, examples,
details, nor any indication as to whether
the problems are currently extant or
resolved, when, where or how the problems
developed, how severe they were, or how
long they may have lasted. Her affidavit
failed to state whether she has ever been
diagnosed as suffering from these
specific limitations on her functioning
or whether she has ever received medical
treatment for them. Moreover, Stein’s
affidavit refers to these alleged
problems only in the past tense, stating,
"I had trouble sleeping because of [my]
injuries," "My sexual relations were
hindered," and, "After the attack I could
not participate in sports, cut my food,
or brush my hair." Furthermore we note
that Stein has failed to present any
medical records, evaluations or opinions
that support either the past or present
existence of these alleged specific
limitations on her ability to function,
i.e., lost sleep, impaired sexual
relations, inability to participate in
sports, cut food or brush her hair. The
most recent medical evaluation from
Stein’s treating physician contained in
the record states that he had not seen or
treated her for eleven months and assumed
she had returned to work full time, an
eight hour day, five days per week,
without any restrictions in terms of
office work. The report also states that
the doctor was imposing no specific
limitations on her activities.

  Bald and self-serving assertions in
affidavits, unsubstantiated by any
documentation or other testimony, are not
sufficient to create a material issue of
fact as to whether an impairment has
substantially limited a major life
activity. Contreras, 237 F.3d at 764.
Further, the Supreme Court has recently
held that a plaintiff who claims that an
impairment substantially limits the major
life activity of "performing manual
tasks" must present evidence that the
impact of the limitation is "permanent or
long-term," and that "the extent of the
limitation . . . in terms of [the
plaintiff’s] own experience . . . is
substantial." Toyota Motor Manufacturing
Kentucky, Inc. v. Williams, ___ U.S. ___,
2002 WL 15402 (U.S. 2002) (emphasis
added). Stein’s case is without merit in
that she has failed to present any
evidence, medical or otherwise, that her
alleged specific limitations (brushing
hair, cutting food, etc.) are permanent
or long-term (or even currently
existing), and the record contains no
details of her own experience from which
a reasonable fact finder could conclude
that her alleged limitations are
"substantial." It is the plaintiff’s
burden on summary judgment to demonstrate
that he can "come up with evidence to
show he could meet his ultimate burden of
showing [a] . . . recognized disability."
Contreras, 237 F.3d at 763. Because
Stein’s claim that her physical
impairment substantially limits major
life activities "other than working" is
not supported by any evidence in the
record, the district court properly
concluded that Stein failed to meet her
burden of demonstrating that she was
"disabled" within the meaning of the
Rehabilitation Act.

  The judgment of the district court is
AFFIRMED.

FOOTNOTES

/1 Stein’s treating physician testified at his
deposition that "myofacial pain syndrome" is "a
muscle problem where patients have tender and
sore areas over their muscles from using the
muscle repetitively."
/2 These decisions concerned application of the
Americans with Disabilities Act (ADA), but the
ADA’s definition of "disability" was taken "al-
most verbatim" from the Rehabilitation Act, and
"Congress’ repetition of a well-established term
carries the implication that Congress intended
the term to be construed with pre-existing regu-
latory interpretations." Bragdon v. Abbott, 524
U.S. 624, 631 (1998); Toyota Motor Manufacturing,
Kentucky, Inc. v. Williams, ___ U.S. ___, 2002 WL
15402 (U.S. 2002) (using Rehabilitation Act
regulations to interpret the ADA); see also Hamm,
51 F.3d at 725 (using ADA case law to interpret
the Rehabilitation Act).
