                            NONPRECEDENTIAL DISPOSITION
                             To be cited only in accordance with 
                                      Fed. R. App. P. 32.1




              United States Court of Appeals
                                     For the Seventh Circuit
                                     Chicago, Illinois 60604

                                   Submitted March 12, 2008*
                                    Decided March 14, 2008

                                             Before

                               WILLIAM J. BAUER, Circuit Judge

                               DANIEL A. MANION, Circuit Judge

                               MICHAEL S. KANNE, Circuit Judge

No. 07-3359

BEVERLY ROBINSON,                                     Appeal from the United States District Court
     Plaintiff-Appellant,                             for the Northern District of Illinois, Eastern
                                                      Division.
       v.
                                                      No. 05 C 4258
MORGAN STANLEY & CO.
INCORPORATED and DFS SERVICES                         Wayne R. Andersen,
LLC,                                                  Judge.
     Defendants-Appellees.

                                           ORDER

         Beverly Robinson claims that her former employer, Discover Financial Services,
discriminated against her in violation of the Americans with Disabilities Act by failing to
accommodate her allergy to perfumes and fragrances. See 42 U.S.C. § 12112(a), (b)(5)(A). The
district court granted summary judgment to Discover. We affirm the judgment because
Robinson does not have a disability as defined by the ADA.




       *
        After  an  examination  of  the  briefs  and  the  record,  we  have  concluded  that  oral
argument is unnecessary.  Thus, the appeal is submitted on the briefs and the record.  FED. R.
APP. P. 34(a)(2).
No. 07‐3359                                                                                Page 2

        We recount the evidence in the light most favorable to Robinson. See Steen v. Myers,
486 F.3d 1017, 1018 (7th Cir. 2007). Robinson suffers from a sensitivity to perfumes and
fragrances. In the past she has experienced migraines, congestion, heart palpitations, a sore
throat, and hives that she attributes to exposure. She also reports that exposure can hinder her
concentration, her memory, and, sometimes, her ability to walk, see, and talk. The symptoms
can last for as little as a few minutes or as much as a week, depending on the degree of exposure.
While working at Discover, Robinson experienced several episodes severe enough to make her
fear that she would stop breathing, but each time she was able to swallow a Benedryl to alleviate
the symptoms. Robinson is healthy except for this condition. If she walks away from the irritant
after exposure, she can mitigate the severity of the symptoms. By her account, however,
Robinson cannot fully control her sensitivity to perfumes and fragrances unless she remains
home at all times and lives “in a bubble.”

         Robinson’s treating physician, Lisa Abrams, has never diagnosed Robinson as allergic to
perfumes and fragrances. And because she is not an allergist, neither has Dr. Abrams performed
any tests to verify that Robinson actually is sensitive to perfumes and fragrances. Indeed, in the
last ten years, no doctor has tested Robinson for allergies to perfumes and fragrances.
Dr. Abrams’s knowledge of Robinson’s condition is based entirely on their conversations.
Dr. Abrams has treated Robinson’s symptoms with antihistamines, nasal steroids, and
decongestants, but never with allergy shots. According to Dr. Abrams, an allergic reaction
would restrict Robinson’s ability to breath through her nose but not her mouth, and typically
would not increase her heart rate. And while theoretically a reaction could close her throat, “it
hasn’t been demonstrated.” Dr. Abrams believes that an allergy could cause Robinson to suffer
migraines and lose focus but would not immobilize her. And, says Dr. Abrams, it would take
four to six hours of consistent exposure to incapacitate Robinson for a day or more. Only if a
reaction precipitated a sinus infection would Robinson be incapacitated for three days or more.

        From October 2000 until her termination in August 2004, Robinson was an internal
auditor for Discover, which during Robinson’s employment was a unit of Morgan Stanley.
When she started her job, Robinson informally told her supervisor that a previous employer had
accommodated her sensitivity to perfumes and fragrances. The supervisor said that she could not
prohibit other employees from wearing perfumes and fragrances. But when Robinson’s work
area was refurbished in 2002, she was seated in a location that minimized her exposure to
perfumes and fragrances. Robinson also was allowed to use an alternate rental-car service that
provided fragrance-free vehicles. These changes improved the situation for a time.

        Not until August 2003 did Robinson first inform Human Resources of her condition. An
HR employee, Tony Cavaliero, requested that Robinson get her doctor to complete a medical
certification, which Dr. Abrams did. Dr. Abrams conveyed that Robinson has an “extremely
high sensitivity to perfume and other fragrances” but did not suffer from a serious medical
condition as defined by the Family and Medical Leave Act. See 29 U.S.C.A. § 2611(11); 29
C.F.R. § 825.114(a)(2). Dr. Abrams did not answer questions asking when the “disability” had
been diagnosed, or what regimen of continuing medical treatment Robinson required.
Dr. Abrams certified that Robinson could perform any kind of work and did not require a
No. 07‐3359                                                                                 Page 3

reduced or intermittent schedule. Dr. Abrams did not respond to a question asking if Robinson
was under any work restriction, but according to Robinson that is because Cavaliero told her that
Dr. Abrams could skip that question since she would be contacted directly by a doctor hired by
Discover. That physician, Dr. Miller, was told by Dr. Abrams in September 2003 that Robinson
should avoid perfumes and fragrances. But Dr. Abrams also told Miller that her opinion had not
been substantiated by any clinical tests, and that only an allergist could clarify the source of
Robinson’s symptoms.

        After that Robinson continued to complain to Cavaliero about exposure, mostly from
perfumes and colognes worn by coworkers. Robinson singled out one employee whose cologne
she did not like, and he was told by management to stop wearing it. In October 2003 Cavaliero
told Robinson to solicit ideas from Dr. Abrams about how Discover might alleviate her
symptoms. Robinson did not do so. In December 2003 Cavaliero asked her to provide an
updated medical certification. Robinson did not do that either. She had no further contact with
HR until after February 2004, when she wrote a memorandum to management saying she had
uncovered irregularities in the auditing department. An investigation ensued, and the company
ultimately concluded that no action was warranted. The following month when Robinson
mentioned her alleged condition to members of the investigative team, the vice president for HR,
Kerry Piercy, sent Robinson an e-mail with an attached medical certification form. Robinson did
not return it. In May, though, she complained to HR that her manager, Vesela Zlateva, was
wearing perfume to retaliate for the February memorandum. Piercy asked Zlateva to refrain
from wearing perfume.

         On August 6, 2004, Zlateva sent Robinson a memorandum outlining the numerous steps
Discover had taken since February 2002 to address her inability to meet deadlines, deliver audit
results, interact with coworkers, and accept feedback from supervisors, and warned her of the
possibility of a prompt termination. Five days later Robinson again complained to Piercy about
exposure to perfumes and fragrances. Piercy responded by e-mail on August 13 reminding
Robinson that in March she had asked for but never received an updated medical certification,
which Robinson needed to supply. After meeting with Robinson in person, Piercy sent Robinson
a follow-up e-mail on August 18 informing her of the steps she could take to reduce her exposure
to irritants while Discover awaited the return of her updated medical certification. Still
Robinson did not return the form. Meanwhile, one of Robinson’s supervisors sent an e-mail to
all employees in her department requesting consideration for employees with sensitivities to
perfumes.

        Robinson was fired on August 24. When informed of that decision, she produced a
second medical certification that Dr. Abrams had signed on August 17. This time Dr. Abrams
said that Robinson was experiencing severe “allergic” reactions to perfumes and fragrances and
that her condition constituted a serious health condition as defined by the FMLA. Dr. Abrams
related that Robinson needed to avoid perfumes and fragrances, and could not work if an allergic
reaction occurred. But Dr. Abrams also stated that Robinson did not require an intermittent or
reduced work schedule. Dr. Abrams later explained during this litigation that Robinson had
suffered from sinus infections with increasing frequency after the first medical certification, and
No. 07‐3359                                                                                   Page 4

that is why on the second form the doctor had characterized her as having a serious health
condition. But Dr. Abrams also acknowledged that she could not say whether Robinson’s sinus
infections had resulted from exposure to perfumes and fragrances.
        At summary judgment the district court assumed that Robinson is impaired by a
sensitivity to perfumes and fragrances. But the court also concluded that Robinson could not
establish that this sensitivity constitutes a “disability” within the meaning of the ADA, or that
Discover thought it was. The court added that, in any event, because Discover provided special
seating assignments and a fragrance-free rental car, informed specific employees to cease
wearing perfumes and fragrances, and sent an e-mail to Robinson’s department requesting
consideration for her sensitivities, it had done what it could to accommodate her impairment.
We review these conclusions de novo. See Squibb v. Mem’l Med. Ctr., 497 F.3d 775, 780 (7th
Cir. 2007). To survive summary judgment, Robinson had to produce evidence from which a
reasonable jury could conclude that Discover failed to accommodate an actual or assumed
disability. See EEOC v. Sears, Roebuck & Co., 417 F.3d 789, 797 (7th Cir. 2005); Nese v. Julian
Nordic Constr. Co., 405 F.3d 638, 641 (7th Cir. 2005). Summary judgment was appropriate in
this case because Robinson produced no evidence that her symptoms actually stem from
exposure to perfumes and fragrances, or that her alleged condition is or was regarded by
Discover as a disability within the meaning of the ADA.

        The ADA defines a disability as an impairment that prevents or significantly restricts an
individual from performing a major life activity that the average person can perform. See 42
U.S.C. § 12102(2); Williams v. Excel Foundry & Mach., Inc., 489 F.3d 309, 311 (7th Cir. 2007).
This standard was designed to be demanding. See Toyota Motor Mfg., Ky., Inc., v. Williams, 534
U.S. 184, 197 (2002). A permanent condition is not disabling simply because infrequent flare-
ups may produce severe symptoms; the question is whether the condition, not the occasional
flare-up, is disabling. See Moore v. J.B. Hunt Transp., Inc., 221 F.3d 944, 952 (7th Cir. 2000);
EEOC v. Sears, Roebuck & Co., 233 F.3d 432, 440 n.4 (7th Cir. 2000). We are less likely to find
an individual disabled if she can easily take medicine to ameliorate the condition. See Sutton v.
United Airlines, Inc., 527 U.S. 471, 482 (1999); Moore, 221 F.3d at 952 n.4.

        Here we have virtually no medical evidence with which to assess Robinson’s alleged
condition. Dr. Abrams’s opinions were based entirely on her conversations with Robinson, and
though Dr. Abrams told Robinson that she needed to consult an allergist, Robinson never
obtained an evaluation. Thus, all this record shows is that Robinson has experienced symptoms
she attributes to an allergy or sensitivity that apparently no doctor has tried to substantiate. See
Stein v. Ashcroft, 284 F.3d 721, 726 (7th Cir. 2002) (holding that summary judgment for
defendant was properly granted where plaintiff claiming violation of Rehabilitation Act had
failed to produce medical records or evaluations to substantiate her belief that previously
diagnosed impairment was causing specific physical symptoms).

       Even if Robinson does have an allergy or severe sensitivity to perfumes and fragrances,
she cannot establish that her impairment is a disability under the ADA definition. Robinson
admitted that she functions normally when she is not exposed to perfume. And the typical
exposure leads only to symptoms that resemble those of an uncomfortable cold, which does not
No. 07‐3359                                                                                  Page 5

substantially impair a major life activity. Even Robinson’s most severe attacks have not
impaired a major life activity. Robinson insists that her condition interferes with breathing,
which is a major life activity. See Squibb, 497 F.3d at 781 n.3. But Dr. Abrams testified that
Robinson can always breath through her mouth, even when her nasal passages become
congested, and a jury could not reasonably conclude that the resulting discomfort qualifies as a
substantial limitation on her ability to breath. See Ammons-Lewis v. Metro. Water Reclamation
Dist. Of Greater Chi., 2004 WL 2453835, at 3 (N.D. Ill. 2004). Robinson, moreover,
acknowledged that she can take medication to alleviate her worst symptoms, and the worst
attacks—“several” during her four years’ employment at Discover—were too infrequent to have
elevated her condition to a disability. See Moore, 221 F.3d at 952. Other circuits that have
considered similar issues have held that a peanut allergy does not substantially impair the
breathing of an otherwise healthy person, see Land v. Baptist Med. Ctr., 164 F.3d 423, 424-25
(8th Cir. 1999), and that a condition which reduced a plaintiff’s lung capacity by 50% was not
evidence of a substantial impairment, see Robinson v. Global Marine Drilling Co. 101 F.3d 35,
37 n.2 (5th Cir. 1996). Cf. Albert v. Smith’s Food & Drug Ctrs., Inc., 356 F.3d 1242, 1250-51
(10th Cir. 2004) (denying summary judgment where plaintiff’s asthma was triggered by cigarette
smoke, pollen, mold, dust, pets, paint, perfumes, certain foods, chemicals, cold air, or stress, and
restricted her breathing all the time).

         Finally, a jury could not reasonably find that Discover “regarded” Robinson as disabled
even if she is not. See 42 U.S.C. § 12102(2); Nese, 405 F.3d at 641. Robinson points out that
she told management of her condition, and that Dr. Abrams told Dr. Miller that she should avoid
perfumes and fragrances. But the company’s awareness of her complaints does not mean that
Discover considered her disabled. Discover did not even receive confirmation that Robinson
suffers from an allergy or sensitivity to perfumes and fragrances; Miller asked for confirmation
and was told by Dr. Abrams that she could not give it because she had not tested—and was not
qualified to test—Robinson. See Rooney v. Koch Air, L.L.C., 410 F.3d 376, 381 (2005).
Discover repeatedly asked Robinson for medical clarification of her condition. What Discover
knew is that, at most, Dr. Abrams had represented without objective testing that Robinson was
extremely sensitive to perfumes and fragrances and should avoid them. Dr. Abrams had never
tried to verify her “diagnosis” or to pin down the specific irritants causing Robinson’s
symptoms. Nor had Dr. Abrams offered any opinion concerning the extent to which Robinson
needed to be isolated “in a bubble” from her coworkers. Indeed, Robinson’s failure to provide
medical documentation to Discover would be fatal to her claim even if she was disabled; if a
disabled employee’s condition is unclear, the employee must provide medical clarification of the
accommodations required in response to the employer’s request. Sears, 417 F.3d at 804; Steffes
v. Stepan Co., 144 F.3d 1070, 1072-73 (7th Cir. 1998).

       We have examined Robinson’s other objections to the grant of summary judgment, and
none has merit. Accordingly, the judgment is AFFIRMED.
