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Summary Judgment Hurdles (Continued from page 12)


That said, be wary of relying on


“working” as the major life activity. A con- tention that our plaintiff, who arguably can perform her job, is substantially lim- ited in the major life activity of working, is counter-intuitive. Though accepted as a major life activity in Williams v. Channel Master Satellite Systems, Inc.30 Wal-Mart Stores, Inc.,31


and Cline v. a few years later


in Toyota Motor Mfg., Kentucky, Inc. v. Williams,32


the Supreme Court openly


questioned whether working constituted a major life activity. Since Toyota, to the extent the Fourth Circuit will entertain working as a major life activity, it does so only when ruling that the plaintiff has failed to make this showing. See, e.g, Pol- lard v. High’s of Baltimore, Inc.33


Distinguish Plaintiff ’s Major Life Activity as Far More Limited than How Others Perform the Same Major Life Activity


Once you get over the hurdle of iden- (plaintiff,


whose back injury prevented her from sig- nificant lifting and bending in her job, was not substantially limited in the major life activity of working based on her ability to immediately obtain a new job); Rohan v. Networks Presentations, LLC34


(employer’s


removal of actress from its touring theatre company because she could not with- stand the stress of the tour means that it regarded her as limited only in the ability


30 101 F.3d 346 (4th 32 Cir. 1996), cert. denied,


520 U.S. 1240 (1997) 31 144 F.3d at 303


534 U.S. 184, 200, 122 S. Ct. 681, 692 (2002)


33 281 F.3d 462 (4th 827 (2002)


Cir.), cert. denied, 537 U.S. 34 375 F.3d at 277-78 35 429 F.3d 461 (4th


36 29 C.F.R.§1630.2(j)(i)(ii) 37 237 F.3d 349 (4th


Cir. 2005) Cir. 2001)


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38Id. at 352 39Id. at 353


40 375 F.3d at 276 41 434 F.3d at 258


42


Sutton v. United Air Lines, Inc., 527 U.S. 471, 119 S.Ct. 2139 (1999)


Winter 2007


tifying an ADA appropriate major life activity, you encounter the next hurdle of showing that your plaintiff ’s major life activity is substantially limited. The EEOC regulations provide guidance on the meaning of “substantially limited.” Essentially, the plaintiff either cannot perform the major life activity, or as com- pared to the average person in the general population, the plaintiff ’s performance of that major life activity is dramati- cally inferior.36 Lee Corp.,37


Consider EEOC v. Sara wherein the plaintiff, with


epilepsy, experienced seizures in her sleep approximately once or twice per week, causing her shaking, kicking, salivating, and bedwetting. She suffered occasional seizures at work as well. The court found that the major life activity of sleep was not


to perform a particular facet of a particular job, not incapable of working); Taylor v. Federal Express Corp.35


(even if the plaintiff


relied on working as the major life activity to establish his disability, the fact that he was “able to perform the work involved in 1,140 job titles, or over 130,000 jobs in the region,” did not to establish that he was substantially impaired in this major life activity).


substantially impaired, because “[m]any individuals fail to receive a full night of sleep.”38


Her ability to think (entertained


but not subscribed to by the court as a major life activity), similarly was not substantially limited because “many other adults in the general population suffer from a few incidents of forgetfulness a week, and indeed, must write things down in order to remember them.”39


Likewise,


in Rohan v. Networks Presentations, LLC, 40


a plaintiff ’s 30 episodes in a four month


period of hyperventilation, inability to speak, inability to open her eyes, gagging, bodily pain and staring off into space – lasting about 30 minutes each, trig- gered by depression and post-traumatic stress disorder, constituted “intermittent manifestations of an illness,” and any impairments therefore were not substan- tial. In short, the more uncommon, the more severe, and the more prolonged the impairment, the more likely a finding that the major life activity is substantially limited. See, e.g., Heiko v. Colombo Savings Bank, F.S.B.,41


wherein the court deter-


mined that the plaintiff ’s twelve hours of dialysis per week over several years, and his resulting nausea and exhaustion, all to accomplish the task of urination, constituted a substantial limitation in the ability to eliminate waste. Your analysis must take into account


all mitigating measures used to treat the impairment.42


You also need to take into


account any side effects or impairments caused by the mitigating measures, which could assist you in establishing other impairments. An individual with diabetes is not disabled, if his diabetes is controlled by medication. A hard-of-hear- ing individual is not disabled, if she hears with hearing aids. Does this mean that a blind individual is not disabled, if he is assisted by a cane or a seeing eye dog? Or a paraplegic is not disabled, if he ambulates by a wheelchair? Not yet.


Do Not Plead Plaintiff Out of Being Able to Perform the Job


So now, the plaintiff really is disabled.


Keep in mind the ongoing tension be- tween the severity of the disability and the plaintiff ’s ability to perform his job. You must strike a tenuous balance – enabling


(Continued on page 16)


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