Fiscus v. Wal Mart Stores Inc

• Court: Court of Appeals for the Third Circuit
• Decided: October 5, 2004
• Docket: 03-2513
• Status: Published

Opinion

Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit

10-5-2004

Fiscus v. Wal Mart Stores Inc Precedential or Non-Precedential: Precedential

Docket No. 03-2513

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Recommended Citation "Fiscus v. Wal Mart Stores Inc" (2004). 2004 Decisions. Paper 178. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/178

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UNITED STATES COURT OF SAMUEL J. CORDES (Argued) APPEALS Ogg, Cordes, Murphy & Ignelzi FOR THE THIRD CIRCUIT 245 Fort Pitt Boulevard Pittsburgh, PA 15222

No. 03-2513 Counsel for Appellant

BRADLEY A. SCHUTJER (Argued) CATHY A. FISCUS, 2157 Market Street Camp Hill, PA 17011 APPELLANT Counsel for Appellee v. ERIC S. DREIBAND WAL-MART STORES, INC. General Counsel d/b/a SAM'S WHOLESALE CLUB #6678 CAROLYN L. WHEELER Acting Associate General Counsel On Appeal from the United States District Court LORRAINE C. DAVIS for the Western District of Pennsylvania Assistant General Counsel (Dist. Ct. No. 01-cv-00836) District Judge: Honorable Gary L. DANIEL T. VAIL (Argued) Lancaster 1801 L Street, N.W. Washington, DC 20507

Argued January 23, 2004 Counsel for Amicus Appellant Equal Employment Opportunity Before: ALITO and CHERTOFF, Commission Circuit Judges, and DEBEVOISE,* Senior District Judge. OPINION OF THE COURT

CHERTOFF, Circuit Judge. * Honorable Dickinson R. Debevoise, Senior United States District Appellant Cathy A. Fiscus, who Judge for the District of New Jersey, was an employee at appellee Wal-Mart, sitting by designation. suffered from end-stage renal disease from

1 1998 until she received a kidney transplant tenure at the store, Fiscus was assigned to in September 1999. End-stage renal a number of different departments, disease means near-total kidney failure. including paper goods, housewares, hard From 1998 until September 1999, lines, grocery, and bakery. Fiscus was therefore, Fiscus was required to undergo responsible for lifting and stocking goods time-consuming and uncomfortable in the aisles. In the fall of 1997, Fiscus dialysis treatments to cleanse and was placed in the bakery department and eliminate waste from her blood. was eventually assigned to the night-shift bakery-wrapper position. Fiscus sought a reasonable accommodation from her employer during In November of 1995, Fiscus was the period of her dialysis. Wal-Mart diagnosed with renal (kidney) failure. declined. As a consequence, she was Over the next few years, her condition placed on leave, which expired before the deteriorated, and in July 1998, she was recuperation period from her kidney diagnosed as having end-stage renal transplant. disease, the condition of total or near-total permanent kidney failure. Fiscus had Fiscus sued under the Americans dialysis treatment from July 1998 through with Disabilities Act. Wal-Mart asserted September 1999. For the first half of her that her kidney failure was not a covered treatment, from July 1998 through disability, arguing that the inability to December 1998, Fiscus underwent cleanse one’s own blood and eliminate hemodialysis, a process by which the body waste does not amount to the blood is cleansed mechanically. Fiscus limitation of a major life activity under the spent four to six hours, three times a week, statute. The District Court agreed with hooked to a machine to have her blood Wal-Mart. We do not. Because we cleansed. Throughout the course of her conclude that a physical impairment that hemodialysis treatment, she continued to limits an individual’s ability to cleanse and work in her overnight position at Sam’s eliminate body waste does impair a major Warehouse Club. life activity, we will reverse the judgment of the District Court in favor of Wal-Mart. Because of complications associated with hemodialysis, Fiscus I. changed her treatment to peritoneal dialysis in mid-December 1998. This From October 1986 through March regimen required Fiscus to administer the 2000, Cathy A. Fiscus served as an forty-five minute dialysis process to employee of Wal-Mart Stores, Inc., herself every four to six hours each day. working at the company’s Sam’s At the start of her treatment, Fiscus was Warehouse Club Store in Pittsburgh, allowed to perform the dialysis at her Pennsylvania. During her twelve-year work premises.

2 Around the time she started discrimination and later filed suit in peritoneal dialysis, Fiscus suffered a fall at District Court. Fiscus alleged in her work and was absent from work for a complaint that she suffered from renal short period of time. In January 1999, disease and that “renal disease is a Fiscus returned to work and was removed disability within the ADA as it is [a] from her position as a baker/wrapper after physical impairment that substantially she indicated in a company form that she limits major life activities.” App. at 10. was not able to perform functions without Fiscus also claimed that Wal-Mart reasonable accommodation.1 When the removed her from her baker/wrapper store manager proposed that Fiscus take a position because of disability, failed to day shift position, such as a “Greeter,” accommodate her disability, and Fiscus requested that she be able to terminated her because of her disability. perform dialysis on Wal-Mart’s premises. App. at 11. This request for accommodation was denied, and Fiscus was informed that there Wal-Mart filed a motion for were no available positions for her. summary judgment, arguing that Fiscus Instead, the store manager advised her to was not “significantly limited in a major take disability leave, which she did. life activity.” Fiscus countered by asserting that she was substantially limited In September of 1999, Fiscus in the major life activity of “processing underwent a kidney transplant and was body waste and cleaning her blood” and unable to work for five and a half months, that “complete failure of [her] kidneys until March 30, 2000. On March 15, substantially limits her ability to perform 2000, Wal-Mart fired Fiscus because she the major life activities of eliminating had been unable to return to work within body waste; of cleaning her blood; and of a year.2 caring for herself.”

Fiscus filed a charge with the Equal In his Report and Employment Opportunity Commission Recommendation, the Magistrate Judge (“EEOC”) alleging disab ility recommended that Wal-Mart’s motion for summary judgment be granted. She 1 concluded that “[t]he activities of Fiscus claims that the manager processing bodily waste and cleansing removed her as a baker/wrapper after she blood do not comport with the definition had informed him that she would need of ‘major life activity’ under the ADA” assistance with tasks that involved heavier and that these activities were “kidney lifting. function[s],” which were not a major life 2 Wal-Mart had a policy of activity under the ADA. The Magistrate allowing employees to take only up to one Judge also concluded that Fiscus had not year of medical leave. identified other “major life activities” that

3 were substantially limited by her renal was afflicted during 1998 and 1999 (until disease. her transplant), is a physical impairment. The kidneys are vital organs that clean the The District Court adopted the blood and help eliminate bodily waste. Magistrate Judge’s Report and Kidney failure is incurable; it requires Recommendation in its entirety and either regular dialysis—mechanical blood granted summary judgment for Wal-Mart. cleansing—or a transplant. But Wal-Mart We exercise plenary review over a grant argues, and the District Court agreed, that of summary judgment. Northview cleansing the blood and processing bodily Motors, Inc. v. Chrysler Motors Corp., waste do not constitute a “major life 227 F.3d 78, 87-88 (3d Cir. 2000). activity” within the meaning of the ADA. The District Court stated that Fiscus’s II. allegation that she could not cleanse her blood and process waste without The ADA mandates that covered mechanical assistance was simply another businesses pr o v i d e “ re a s o n a b le way of stating that she was “substantially accommodations to the known physical or limited in the major life activity of kidney mental limitations of an otherwise function.” Magistrate Op. 10. The Court qualified individual with a disability . . . .” reasoned that impairment of an organ does 42 U.S.C. § 12112(b)(5)(A). A qualified not in itself constitute a limitation on a life individual with a disability under the activity. So, the District Court concluded, statute is someone with a disability who to succeed, Fiscus would have to show “with or withou t r e asonable that the inability to cleanse blood limited accommodation” can perform the essential her in doing something else that would be functions of a particular job. 42 U.S.C. § described as a life activity. 12111(8). Disability, in turn, is defined as “a physical or mental impairment that The District Court erred in its point substantially limits one or more of the of departure. Fiscus does not allege that major life activities of the individual.” her disease limited her in the life activity U.S.C. § 12102(2). Thus, to establish a of “kidney function.” She contends that statutorily protected disability, the she was limited in the major life activities employee must show that she has an of cleansing her blood and processing impairment; identify the life activity that waste. Appellant Br. at 15. By re- she claims is limited by the impairment; characterizing Fiscus’s claim as an and prove that the limitation is substantial. allegation “that she is substantially limited Bragdon v. Abbott, 524 U.S. 624, 631 in the major life activity of kidney (1998). function,” the District Court simply assumed away her argument. Fiscus’s In this case, there is no dispute that position is clear: Absence of kidney end-stage renal disease, with which Fiscus function was the impairment; the

4 consequence was the impact on the impairments that gives rise to them. But activity of blood cleansing and body waste they also do not necessarily involve processing. Thus, it was incorrect for the externally visible or volitional behavior. District Court to conflate the two, and to Breathing, for example, is largely interpret Fiscus’s contention as nothing involuntary. Thinking—which this Court more than claiming a limitation on the life has held constitutes a major life activity, activity of kidney functions. Gagliardo v. Connaught Lab., Inc., 311 F.3d 565, 569 (3d Cir. 2002); Taylor v. That leads to the question—are Phoenixville Sch. Dist., 184 F.3d 296, 307 cleansing and eliminating waste from the (3d Cir. 1999)—is largely internal and blood a major life activity? To be sure, invisible, although the effects of thought these are normally internal body functions (or its absence) are externally manifested. which are not volitional—i.e., which occur Indeed, “thinking” well illustrates that the automatically. But that does not mean that distinction between the physical they may not be considered a major life impairment and the affected life activity is activity. Even internalized and often fine, indeed. For example, a autonomous body activities may qualify as chemical imbalance in the brain can affect major life activities within the meaning of thinking. One may view that impairment the ADA. as characteristic of brain damage but also as a limitation on mental ability and The ADA itself does not thought. How one characterizes the comprehensively define the meaning of difference depends on whether one looks “major life activity,” but it does to the chemistry of the brain or to the specifically direct that the statute be thinking activity of the mind. construed so that it meets the standards set forth in the Rehabilitation Act of 1973, 29 Furthermore, in Bragdon v. Abbott, U.S.C. § 790 et seq., and the regulations the Supreme Court expressly rejected the issued thereunder. 42 U.S.C. § 12201(a). claim that a major life activity is limited to Regulations under the Rehabilitation Act “those aspects of a person’s life which furnish a representative—but not have a public, economic, or daily exhaustive—list of functions that should character.” 524 U.S. at 638. Relying on be deemed major life activities. These the “breadth of the term” major life include, “caring for one’s self, performing activity, id., the Court held that HIV manual tasks, walking, seeing, hearing, infection (as a physical impairment) speaking, breathing, learning, and substantially limited the major life activity working.” 45 C.F.R. § 84.3(j)(2)(ii); 28 of “reproduction,” not because it C.F.R. § 41.31(b)(2)(1997). physically prevented pregnancy, but because the infection deterred the plaintiff These major life activities are from seeking to become pregnant. conceptually distinct from the physical

5 The decision in Bragdon teaches Second, the Court in Bragdon several useful lessons in construing the required no showing that reproduction or ADA. First, it undercuts any dispositive the decision to reproduce was a recurrent conceptual difference for ADA purposes or daily feature of life for someone in between internal, largely autonomous plaintiff’s position. The dissent correctly physical activities on the one hand, and observed that unlike the regulatory external, largely volitional physical examples of major life activities such as activities on the other. In Bragdon, the breathing, walking and seeing, Court found that reproduction satisfied the reproduction is not (usually) “repetitively statutory definition of major life activity performed and essential in the day-to-day because “[r]eproduction and the sexual existence of a normally functioning dynamics surrounding it are central to the individual.” 524 U.S. at 660. But the life process itself.” 524 U.S. at 638. Yet majority opinion rejected any such test. reproduction in itself, as the dissent The Court found it sufficient that pointed out, is not an external process. reproduction—although generally not 524 U.S. at 658-59 & n.2. That is to say, routine—was comparable in importance to after the (normally) volitional act of life activities such as working and conception, reproduction for the woman learning. The touchstone is not publicity largely takes place autonomously and or frequency, but importance to the life of internally until birth. And while the individual. pregnancy can be debilitating for some women, many others can pursue their daily Third, the Bragdon Court found routines with little limitation or handicap. that insofar as the risk of perinatal An impairment of the ability or transmission of HIV deterred the plaintiff willingness to reproduce, moreover, would from voluntarily seeking to become not necessarily impinge on the woman’s pregnant, HIV constituted a substantial ability to engage in nonreproductive limitation on plaintiff’s life activity of (protected) sexual relations or the raising reproduction. Importantly, the HIV of an adopted child. Despite these facts, infection did not make it physically the Bragdon majority treated reproduction impossible for the plaintiff to conceive, by itself as a major life activity, without gestate, and give birth. And, the Court the need to demonstrate any impact that also assumed that the risk of transmission pregnancy might have on some other during pregnancy was considerably less volitional or external activity, such as than fifty-fifty, perhaps as low as eight working, walking, etc., and without regard percent. Nevertheless, the Court to the plaintiff’s continued ability to concluded that an HIV-positive woman’s engage in at least some sexual behavior decision to avoid even that risk meant that and raise children. Compare 524 U.S. at HIV imposed a substantial limitation on 660-61 (Rehnquist, C.J., dissenting). reproduction. The Court thus held that a limitation need not rise to the level of

6 “utter inabilit[y].” 524 U.S. at 641. It incompatible with a finding of substantial need not even be based entirely on limitation of a major life activity. physical constraints; in Bragdon, the Court based its finding of substantial limitation Under Bragdon, the touchstone of in part on the legal and economic a major life activity is its importance or consequences that forseeably ensue if an significance. An activity which is “central HIV-infected mother becomes pregnant. to the life process,” 524 U.S. at 638, What matters is a broad practical expressly meets that test. By that standard, assessment of whether an individual’s processing and eliminating waste from the ability to pursue the major life activity is blood qualifies as a major life activity limited by the physical impairment or because, in their absence, death results. In condition from which he or she suffers. this respect, waste elimination is comparable to other life-sustaining We distill from Bragdon, therefore, activities such as breathing, eating, or the following: A major life activity need drinking, all of which have been held to be not constitute volitional or public major life activities within the statute. behavior; it need not be an activity that is See, e.g., 29 C.F.R. § 1630.2(i); Lawson performed regularly or frequently; but it v. CSX Transp., Inc., 245 F.3d 916, 923 does have to have importance to human (7th Cir. 2001) (eating); Amir v. St. Louis life comparable to that of activities listed Univ., 184 F.3d 1017, 1027 (8th Cir. in the regulatory examples. We also read 1999) (eating, drinking, and learning). the Supreme Court to hold that a Our own court has held under Title II of substantial limitation of a major life the ADA that “digestion” is a major life activity does not mean impossibility or activity. Doe v. County of Ctr., 242 F.3d even great physical difficulty; rather, 437, 447 (3d Cir. 2001). And the Sixth substantial limitation is weighed in a Circuit has expressly held that waste broad, practical sense, and may include elimination—i.e., controlling one’s non-physical factors. bowels—can be a major life activity. Workman v. Frito-Lay, Inc., 165 F.3d 460, With these teachings in mind, we 467 (6th Cir. 1999); see also Gilbert v. disagree with the District Court’s Frank, 949 F.2d 637, 641 (2d Cir. 1991) conclusion that impaired elimination of (assuming that kidney failure that limits waste and blood cleansing are nothing removal of waste without dialysis more than characteristics of kidney failure. substantially limits ability to care for one’s Rather, they are the effect of kidney failure self). in the same way that impaired thinking is In reaching its conclusion that the effect of organic brain disease. And blood cleansing and waste elimination are the fact that the effect of kidney failure is not a major life activity, the District Court felt on an internal autonomous organic relied on two other decisions. One was activity is, under Bragdon, not Furnish v. SVI Systems, Inc., 270 F.3d

7 445 (7th Cir. 2001), in which the court III. held that cirrhosis of the liver did not constitute a substantial limitation on a Fiscus also challenges the ruling of major life activity. Furnish was the District Court rejecting her claim that adjudicated, however, on the express her renal disease substantially limited her theory that the major life activity was ability to care for herself. The District nothing more or less than “liver function.” Court did not contest that under the The plaintiff did not assert that the Rehabilitation Act regulations, caring for impaired liver function actually affected one’s self is explicitly recognized as a waste removal or blood cleansing. Indeed, major life activity. Instead, the District there was every indication that the Court held that Fiscus had not adequately plaintiff’s liver functioned within the alleged in a pleading—i.e., her normal range. Id. at 450. Furnish might complaint—that caring for herself was a serve as a useful precedent if Fiscus were life activity that was substantially limited merely alleging damaged kidneys, but as by her kidney disease. Magistrate Op. at we have seen, her claim goes further to 12. cover an inability to process and eliminate We believe that the District Court waste in the blood. read the complaint too narrowly in holding that Fiscus was not entitled to prove a The District Court also relied on substantial limitation on her ability to care Fraser v. United States Bancorp, 168 F. for herself. Supp. 2d 1188, 1194 (D. Or. 2001). That case declined to find that the effect of Fiscus’s complaint alleges that she diabetes on food metabolization is, suffered from end-stage renal disease and without more, a substantial limitation on a that it substantially limits major life major life activity. That decision was activities. App. at 10. This was sufficient substantially—if not entirely—undercut by to meet the notice pleading requirement its subsequent reversal on appeal. The with respect to Fiscus’s disability under Ninth Circuit disagreed with the District our decision in Menkowitz v. Pottstown Court, and held that a diabetic plaintiff Memorial Medical Center, 154 F.3d 113 could claim a substantial limitation on the (3d Cir. 1998). Accordingly, Fiscus was life activity of eating. Fraser v. Goodale, entitled to establish that her end-stage 342 F.3d 1032, 1039-40 (9th Cir. 2003). renal disease substantially limited her The eventual disposition of Fraser is ability to care for herself. We of course consistent with our decision here. express no opinion on whether she will succeed in doing so. We hold, therefore, that the District Court erred in deciding that elimination of Finally, Wal-Mart argues as an waste from the blood is not a major life alternative ground for dismissal that even activity under the ADA. if cleansing blood was a major life

8 activity, Fiscus’s dialysis treatments fully the major life activities of cleansing blood mitigated the impact of her kidney disease, and caring for one’s self, bearing in mind so that there was no longer a substantial collateral and side-effects. limitation in performing that activity.

Wal-Mart is correct that a court must assess the limitation on a major life activity in light of any corrective measures plaintiff uses to mitigate her impairment. Sutton v. United Airlines, Inc., 527 U.S. 471, 488 (1999); Taylor, 184 F.3d at 302. So, for example, in Sutton the Supreme Court held that a visually impaired plaintiff’s limitations must be considered in light of his use of corrective eyeglasses. 527 U.S. at 488. By the same token, however, any evaluation of the mitigating effects of corrective measures must also consider side-effects or other collateral limitations caused by those corrective measures. Sutton, 527 U.S. at 484; Taylor, 184 F.3d at 308-09. In Fiscus’s case, therefore, the limitations caused by her kidney failure must be weighed in light of her ability to conduct peritoneal dialysis but with due regard for any side- effects or residual effects.

Here, the record certainly supports the view that both hemodialysis and peritoneal dialysis were time-consuming and cumbersome processes, requiring specialized equipment and limiting Fiscus’s mobility and other aspects of daily living. Because the District Court did not address these matters, however, we decline to do so in the first instance on appeal. On remand, the District Court should consider whether dialysis eliminated any substantial limitation on