Chapter § 3-2 § 1630.2. Definitions

• Jurisdiction: United States

3-2 § 1630.2. Definitions

(a) Commission means the Equal Employment Opportunity Commission established by section 705 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-4).

3-2:1 Comments

3-2:1.1 Defendants Continue to File Rule 12(b)(6) Motions Despite the Expansion of the ADA

Despite the expansion of the ADA through the 2008 amendments, defendants continue to file Rule 12(b)(6) motions pursuant to Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) and argue there is not a disability. These motions do not do well.

• Rico v. Xcel Energy, Inc., 893 F. Supp. 2d 1165 (D.N.M. 2012) (court denied motion where plaintiff could not climb utility poles, was told not to lift over sixty pounds, and was told by his physician to apply for long-term disability benefits; defendant argued that pre-amendments case law applied; court rejects arguments holding that the legislative history to the amendments wiped away this argument).

Also recall that to survive a motion to dismiss under Rule 12(b)(6), a plaintiff is not required to establish a prima facie case or to mechanically recite the elements of an ADA claim.

• Perry v. Dillon's Bus Serv., No. ELH-16-3207, 2017 U.S. Dist. LEXIS 89466 (D. Md. June 9, 2017) (noting that prima facie case in the employment law context is an evidentiary standard, not a pleading requirement; plaintiff need only put forth sufficient facts to state a claim for relief that is plausible on its face).

Other courts are in accord in denying Rule 12(b)(6) motions.

• Harty v. City of Sanford, No. 6:11-cv-1041-Orl-31KRS, 2012 WL 3243282 (M.D. Fla. August 8, 2012) (amendments were designed to cover impairments that were previously excluded).
• Lapier v. Prince George's County Md., No. 10-CV-2851 AW, 2012 WL 1552780 (D. Md. April 27, 2012) (denying 12(b)(6) where plaintiff alleged her blood disorder caused decreased oxygen flow).
• Johnson v. Farmers Ins. Exch., No. CIV-11-963-C, 2012 WL 95387 (W.D. Okla. January 12, 2012) (motion denied where plaintiff pled that she had sleep apnea).
• Coffman v. Robert J. Young Co., No. 3:10-1052, 2011 WL 2416745 (M.D. Tenn. June 14, 2011) (lifting restrictions and limited range of motion sufficient to plead disability).

Lifting restrictions will make up an increasing number of claims, and the weight restriction can be minimal. Very minimal.

• Mills v. Temple Univ., 869 F. Supp. 2d 609 (E.D. Pa. 2012) (finding a three-pound lifting restriction sufficient to establish genuine issue of fact as to disability and to survive summary judgment).
• Farina v. Branford Bd. of Educ., No. 3:09-CV-49, 2010 WL 3829160 (D. Conn. Sept. 23, 2010), aff'd., 456 F. App'x 13 (2d Cir. 2011) (noting that even a relatively minor lifting restriction can be a disability post-2008 amendments).

3-2:1.2 Some Temporary Conditions May Qualify for Protected Disability Status

Heatherly v. Portillo's Hot Dogs, Inc., 958 F. Supp. 2d 913 (N.D. Ill. 2013) (plaintiff suffered complications from a high-risk pregnancy, resulting in being placed on light duty, an inability to work more than six to eight hours a day, and an inability to lift heavy objects; court rejects the defendant's argument that her condition does not "substantially limit" a major life activity because her restrictions are only temporary; court relies upon language in regulations that impairments lasting or expected to last less than six months can still be a disability).

The following case is excellent for plaintiff's lawyers on the issue of duration and also to negate the defendant's argument that a plaintiff is not covered by the ADA because she can engage in a variety of activities.

Eastman v. Research Pharms., Inc., No. 12-2170, 2013 WL 3949236 (E.D. Pa. Aug. 1, 2013) (plaintiff suffered from chronic back pain for several years yet testified that she was able to drive and work, but her impairment made these tasks more difficult compared to most people; the court notes that the focus must be on limitations and their effect on the individual, not on what outcomes the individual can achieve).

3-2:1.3 Courts Consider the Duration of an Impairment in Determining Actual Disability Status

Nonetheless, courts are drawing the line with transitory, non-chronic conditions. Recall that the six-month "transitory" part of the "transitory and minor" part of the regulations applies only to the "regarded as" prong, not the actual disability prong. Still, courts consider the duration of an impairment in determining actual disability status.

• Bush v. Donahoe, 964 F. Supp. 2d 401 (W.D. Pa. 2013) (court considers transitory nature of plaintiff's sprain of her ankle/foot where she was required to wear a foot brace for several months; in granting summary judgment to the employer on actual disability prong, court notes that plaintiff cited to no limitations that flowed from the impairment and that she drove to and from work by taking off the boot and performed her duties at work).
• Poper v. SCA Americas, Inc., No. 10-3201, 2012 WL 3288111 (E.D. Pa. Aug. 13, 2012) (no actual disability where plaintiff pled that he had a long history of back problems and treatment but failed to present evidence of impairments; court further holds that plaintiff's deposition testimony was insufficient to establish a disability given uncontroverted medical evidence showing no impairments).
• Kaller v. Riley Riper Hollin & Colagreco, 850 F. Supp. 2d 502, 513 (E.D. Pa. 2012) (plaintiff had difficulty recovering from surgery; court dismisses claim, holding that evidence of difficulty in "performing acts" such as moving and driving because of cast on his knee is not an actual disability; dismissal was in context of a Rule 12(b)(6) motion).
• Gray v. Wal-Mart Stores, Inc., No. 7:10-CV-171-BR, 2011 WL 1831780 (E.D. N.C. May 12, 2011) (dismissal where plaintiff's complaint listed awful sounding conditions (hypertension, bowel problems, exacerbation of left shoulder injury, terrible back injury) but failed to allege any details as to how these conditions affected her; "Plaintiff describes her condition with so few details that the court cannot infer whether the activity limited by plaintiff's impairment is a major life activity or whether plaintiff's impairment substantially limits a major life activity. Thus, plaintiff has alleged no facts from which the court can conclude that she has the requisite disability to qualify for relief.").
• Clay v. Campbell County Sheriff's Office, No. 6:12-cv-0006, 2013 WL 3245153 (W.D. Va. June 26, 2013) (granting Rule 12(b)(6) where plaintiff alleges that kidney stones was his disability; court agrees that the kidney stones were of such severity that they substantially limited the major life function of working, but he failed to allege that the condition was episodic or chronic; even under the more lenient standard of the 2008 amendments, disability cannot be based upon a temporary, one-time attack that was resolved in two weeks; court agrees with argument advanced by defendant that to hold otherwise would mean that anyone who became ill and had to miss work for a period of time would suffer from a "disability" under the ADA).

A 2016 case from a district court in the Fifth Circuit adheres to this line of cases and applies prior Fifth Circuit law.

• Clark v. Boyd Tunica, Inc., No. 3:14-cv-00204-MPM-JMV, 2016 WL 853529 (N.D. Miss. Mar. 1, 2016) (no disability because of broken foot; court notes that the nature and severity of broken foot was not of a particularly egregious or debilitating nature and course of treatment was standard).

Not all courts agree. A significant case from the Fourth Circuit bears reading.

• Summers v. Altarum Institute, Corp., 740 F.3d 325 (4th Cir. 2014) (employee fell fracturing his left leg and right ankle, rendering him unable to walk for several months; in reversing trial court's summary judgment for the employee, appeals court held that it was a jury question—contrary to trial court's determination—as to whether the impairments were transitory (no disability) or severe (a disability)).
• Gogos v. AMS Mechanical Systems Inc., 737 F.3d 1170 (7th Cir. 2013) (Seventh Circuit looked at temporary language in the regulations and holds that district court erred in granting summary judgment to employer when district court found that a spike in blood pressure was temporary and thus there was no covered disability; moreover, appeals court held that because his condition was chronic, it would be covered disability).

In 2018, a district court in the Northeast adhered to the reasoning in Summers in a case in which the plaintiff suffered from a knee injury, as well as a shoulder injury.

• Taylor v. FedEx Ground Package Sys., Inc., No. 3:16-CV-402 (JCH), 2018 U.S. Dist. LEXIS 41411 (D. Conn. Feb. 26, 2018) (court adheres to Summers in light of the post-ADA amendments; in this case, plaintiff's impairments lasted almost one year; and, in an important holding, the court rejected the argument that there was no protected disability because plaintiff went to work doing physical labor for company after working for defendant; court notes that work performed was less physical than that at FedEx, and it was, therefore, consistent with his limitations on lifting and standing).

While courts in Texas have not relied upon Summers, at least one court in the Western District has arrived at the same result.

• Mesa v. City of San Antonio, No. SA-17-CV-654-XR, 2018 U.S. Dist. LEXIS 138896 (W.D. Tex. Aug. 16, 2018) (employee suffers a shoulder separation and takes eight days to recover; while he obtains full release, employer refuses his return to work; court denied Rule 12(b)(6) on both the "actual" prong and "regarded as" prong; as to first, court holds that under Cannon v. Jacobs Field Servs. N. Am., 813 F.3d 586 (5th Cir. 2016), lifting and reaching are major life activities and plaintiff's injury, arguably, substantially impaired his ability to perform those functions; as to "regarded as" court holds that the amendments make clear that employer need only

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