Adams v. Rice

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 11, 2008 Decided July 18, 2008

No. 07-5101

KATHY E. ADAMS,
APPELLANT

v.

CONDOLEEZZA RICE, SECRETARY OF STATE,
APPELLEE

Appeal from the United States District Court
for the District of Columbia
(No. 05cv00941)

Ellen K. Renaud argued the cause for appellant. With her
on the briefs was David H. Shapiro. Richard L. Swick entered
an appearance.

Daniel B. Kohrman and Melvin Radowitz were on the
brief for amici curiae American Association of Retired
Persons and American Cancer Society in support of appellant.

John C. Truong, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Jeffrey A.
Taylor, U.S. Attorney, and R. Craig Lawrence, Assistant U.S.
Attorney.
 2
Before: HENDERSON, TATEL, and KAVANAUGH, Circuit
Judges.

Opinion for the Court filed by Circuit Judge TATEL.

Dissenting opinion filed by Circuit Judge HENDERSON.

TATEL, Circuit Judge: Appellant Kathy Adams, a
candidate for the United States Foreign Service, passed the
required entrance examinations and received a medical
clearance, only to learn thereafter that she had been diagnosed
with stage-one breast cancer. Upon hearing the news, the
State Department, expressing concern that many of its
overseas posts lack the follow-up care it believed Adams
required, revoked her medical clearance, disqualifying her
from the Foreign Service. Adams sued under the
Rehabilitation Act of 1973, which prohibits federal agencies
from discriminating in employment against disabled
individuals—including those with a “record of” a disability,
29 U.S.C. § 705(20)(B)(ii). In her complaint, she alleged that
her surgical treatment rendered her cancer-free and able to
work anywhere in the world without requiring specialized
follow-up care. Without allowing discovery, the district court
granted summary judgment to the State Department,
concluding among other things that Adams had no record of a
disability as defined in the statute. For the reasons set forth in
this opinion, we reverse.

I.
Viewed in the light most favorable to Adams, the
evidence tells the following story. See Czekalski v. Peters,
475 F.3d 360, 363 (D.C. Cir. 2007) (explaining standard of
review on summary judgment).
 3
The Foreign Service, an arm of the State Department,
requires its officers to be “available to serve in assignments
throughout the world,” 22 U.S.C. § 3901(a)(4), and frequently
assigns junior Foreign Service officers to overseas locations
that—due to factors such as “unreliable air service, poor or
non-existent medical facilities, and unreliable postal or other
delivery systems”—are considered “hardship posts.” John M.
O’Keefe Decl. ¶ 3; see generally Taylor v. Rice, 451 F.3d
898, 900-01 (D.C. Cir. 2006) (explaining Foreign Service
hiring requirements and assignment procedures). Candidates
who pass the Foreign Service’s rigorous written and oral
examinations receive conditional offers of employment,
requiring, among other things, that they “receive a medical
examination and be issued a medical clearance.” 3 U.S. DEP’T
OF STATE, FOREIGN AFFAIRS MANUAL (“FAM”) § 1931.1(b)
(2002); see also 22 C.F.R § 11.1 (establishing Foreign
Service testing and application procedures). The State
Department’s Office of Medical Services (“MED”) performs
the required medical examinations and issues “Class 1”
clearances to examinees “who have no identifiable medical
conditions that would limit assignment abroad.” 3 FAM §
1931.3-1(1). The State Department refers to Class 1-
approved candidates as “worldwide available.” Taylor, 451
F.3d at 901. Those failing to obtain such clearances
automatically receive “Class 5” clearances, 3 FAM §
1931.1(b), meaning they “have a medical condition which is
incapacitating or for which necessary specialized medical
care is best obtained in the United States,” id. § 1931.3-1(3).
Because individuals with Class 5 clearances are deemed
unable to serve safely outside the United States, they are
declined appointments to the Foreign Service unless they
request and receive an administrative waiver of the medical
standards for employment. Such waivers result in a “Class 2”
clearance, meaning the applicant “can be treated adequately at
some but not all posts outside the United States.” Bruce L.
 4
Cole Decl. ¶ 7; see also 3 FAM § 1931.3-1(2). Rarely
granted, waivers are issued on the basis of factors such as the
extent of worldwide availability and extraordinary skills
possessed by the applicant.

Appellant Kathy Adams applied to the Foreign Service
and by April 2003 had passed both the written and oral
examinations. In July, after undergoing the required medical
screening, Adams learned that she had received a Class 1
unlimited medical clearance for worldwide assignment. In
mid-August, however, Adams was diagnosed with stage-one
breast cancer.

After discussing treatment options with her physicians,
Adams elected to undergo a mastectomy and simultaneous
reconstructive surgery, reasoning that it “would provide the
best option for me to be able to resume my normal life
activities.” Adams Decl. ¶ 10. The surgery took place in
mid-September. According to Adams, after the procedure she
“could not work at all” for three weeks, “was unable to
perform household chores for several weeks,” and “was
unable to care for [her]self properly and . . . drive for about
two weeks.” Id. ¶ 12. Two months later, as part of her breast
cancer treatment, Adams had her ovaries and fallopian tubes
removed, a procedure necessitating an additional week of
recovery.

As Adams grappled with her medical diagnosis and
treatment, the State Department continued processing her
application. In late September it sent Adams her final
security clearance indicating that she was “eligible for
appointment to the Foreign Service” and had “been added to
the Consular register of those awaiting appointment.” Letter
from Patricia Evans, Human Resources Specialist, Bd. of
Exam’rs for the Foreign Serv. to Kathy Adams (Sept. 25,
 5
2003). After receiving this letter on October 2, Adams
learned from State Department human resources official
Patricia Evans that she was ranked seventh out of 200
consular candidates due to her high score on the Foreign
Service Examination. Evans told Adams that “barring some
unforeseeable catastrophe,” she would receive an
appointment to the Foreign Service beginning in January
2004. Adams Decl. ¶ 15; Patricia Evans Decl. at 2.

The next day, Adams told the State Department about her
breast cancer diagnosis. Upon learning this information,
MED nurse Rebecca Forsman asked Adams for a “typed
summary report from your primary treating physician” that
included pathology reports, blood-work results, a summary of
care, and a “[t]reatment plan detailing the type and frequency
of follow-up care/monitoring needed.” Email from Rebecca
Forsman to Kathy Adams (Oct. 10, 2003). Forsman warned
Adams “that there is a significant possibility that we will not
be able to re-issue a Class One (worldwide available) medical
clearance in the near future,” but assured her that “once all of
the MD documentation has been received, the providers here
will review this carefully.” Id. In a telephone conversation,
Adams recalls, “Ms. Forsman remarked that it would be in
my best interest to remain in the United States . . . after an
occurrence of breast cancer, rather than to join the Foreign
Service and live outside the U.S.” Adams Decl. ¶ 24.

Responding to the State Department’s request for
information, Adams had her primary physician, Doctor Mark
A. O’Rourke, send a letter to the State Department explaining
that she had been successfully treated for early stage breast
cancer and was “in completed remission with an excellent
prognosis.” Letter from Dr. Mark A. O’Rourke 1 (Nov. 19,
2003). According to Dr. O’Rourke, Adams was “cancer-
free,” had “no job limitations whatsoever,” could “undertake
 6
a full schedule of work, travel, and vigorous sports,” and was
“entirely able to work overseas for long periods of time.” Id.
at 1-2. As for follow-up care, Adams needed one pill per day
of Tamoxifen (an anti-estrogen drug), an annual mammogram
(recommended for all women Adams’s age), and—crucially
for this case—a “clinical breast exam at 6-month intervals for
the next 5 years.” Id. at 1. Adams, he concluded, “is a
remarkable individual with excellent health, high energy,
determination, and enthusiasm. I can say with complete
confidence that this history of breast cancer will not slow her
down one bit at all.” Id. at 2.

After reviewing the submitted materials, MED informed
Adams in mid-December that she was no longer “worldwide
available” and issued her a Class 5 clearance. Explaining this
decision, MED Director Laurence Brown later stated that
Adams “disclosed to MED . . . that she had been diagnosed
with Stage 1 breast cancer and had undergone an operation in
August 2003,” and that “[o]n that basis, MED determined that
she was not eligible for service worldwide.” Brown Decl. ¶
14. Specifically, MED based its decision on its conclusion
that “the Department could not guarantee . . . [Adams] access
to the required medical follow-up and surveillance for her
condition . . . at all overseas assignments” since only 53% of
all Foreign Service posts had “surgeons and/or oncologists”
available to perform a semi-annual breast exam. Id. ¶ 18.
Echoing this rationale, MED nurse Forsman explained that
“[t]he problem was that [Adams] needed to be seen every six
months for follow-up care (preferably by a specialist).”
Forsman Decl. at 3.

Attempting to salvage her candidacy, Adams sought an
administrative waiver from MED. In support, Dr. O’Rourke
sent another letter emphatically endorsing Adams’s ability to
work “anywhere in the world for prolonged periods of time.”
 7
Letter from Dr. Mark A. O’Rourke to Dep’t of State Bd. of
Exam’rs for the Foreign Serv. ¶ 7 (Jan. 12, 2004). The letter
also clarified that “any competent physician [could] perform
[Adams]’s examinations; an oncologist or other specialist is
not required,” and that a nurse practitioner “would be
competent to perform” the bi-annual breast exams “if a
physician were not conveniently available.” Id. ¶¶ 9, 14; see
also O’Rourke Supp. Decl. ¶ 5. Another oncologist, Doctor
Kimberly Blackwell of Duke University Breast Cancer
Center, concurred with Dr. O’Rourke’s assessment of
Adams’s follow-up care needs.

MED denied the waiver request. Despite Dr. O’Rourke’s
assurance that Adams required no medical specialists to
provide any of her follow-up care, the MED doctor who
denied the waiver confirmed that in MED’s view only “53%
of all Foreign Service posts have the professional and
technological support required in this case.” Memorandum
from Emil Von Arx III, Medical Advisor to Employee
Review Comm. (Mar. 23, 2004). Left holding a Class 5
medical clearance, Adams was denied entry into the Foreign
Service.

Adams filed an Equal Employment Opportunity (EEO)
complaint in July 2004 claiming discrimination on the basis
of a physical disability, namely her history of “Stage 1 breast
cancer.” Formal Compl. of Discrimination (July 22, 2004).
According to her complaint, Adams had “resumed all
physical activities,” and “require[d] only one extra check-up
per year for four more years and tamoxifen,” a drug that
thanks to its long shelf life could be “readily store[d] at post.”
Id. The EEOC initiated an investigation, but after Adams
filed suit in the U.S. District Court for the District of
Columbia in May 2005, the Commission dismissed Adams’s
administrative complaint and terminated the EEO process.
 8
See 29 C.F.R. § 1614.107(a)(3) (instructing EEOC to dismiss
complaint when complainant has filed a civil action in federal
district court more than 180 days after filing administrative
complaint).

In her amended complaint, Adams alleges that the
Department discriminated against her because of a disability,
i.e., breast cancer. The State Department responded with a
motion to dismiss, or in the alternative, for summary
judgment. Noting that “[n]o discovery has taken place, but
both parties have submitted declarations and other forms of
documentary evidence to support their positions,” the district
court treated the Department’s motion as one for summary
judgment and granted it. Adams v. Rice, 484 F. Supp. 2d 15,
19 (D.D.C. 2007). Although the district court found the State
Department’s “refusal to accept the recommendations of
[Adams]’s physicians or otherwise accommodate her minor
medical needs . . . both callous and unreasonable,” it
nonetheless concluded that Adams had failed to show she had
a disability as defined in the Act. Id. at 23-24.

Adams now appeals, and the American Cancer Society
and AARP filed an amicus brief on her behalf. We review
the district court’s ruling de novo, drawing all reasonable
inferences from the evidence in Adams’s favor and without
making credibility determinations or weighing the evidence.
See Czekalski, 475 F.3d at 362-63.

II.
Rehabilitation Act section 501 prohibits federal agencies
from engaging in employment discrimination against disabled
individuals. 29 U.S.C. § 791(b); see also Taylor, 451 F.3d at
905 & n.11 (explaining that section 501(b) provides a private
cause of action for claims alleging employment
discrimination); 22 U.S.C. § 3905(e)(4) (expressly applying
 9
section 501’s prohibition on “discrimination on the basis of
handicapping condition” to the Foreign Service). This
deceptively simple injunction against disability discrimination
implicates an interlocking web of statutory definitions. First,
although the Act includes no definition of “discrimination,” it
instructs courts to use the same standards employed in cases
arising under the Americans with Disabilities Act (ADA). 29
U.S.C. § 791(g); see also Breen v. Dep’t of Transp., 282 F.3d
839, 841 (D.C. Cir. 2002) (applying ADA employment
discrimination standards to Rehabilitation Act claim).
Adams’s claim therefore incorporates ADA section 102,
which provides that “[n]o covered entity shall discriminate
against a qualified individual with a disability because of the
disability of such individual in regard to job application
procedures, the hiring, advancement, or discharge of
employees, employee compensation, job training, and other
terms, conditions, and privileges of employment.” 42 U.S.C.
§ 12112(a). The ADA also includes within the definition of
“discriminate” the failure to “mak[e] reasonable
accommodations to the known physical or mental limitations
of an otherwise qualified individual with a disability who is
an applicant or employee, unless [the employer] can
demonstrate that the accommodation would impose an undue
hardship.” Id. § 12112(b)(5)(A); see also 29 C.F.R. §
1630.9(a).

Here, Adams alleges that the State Department denied
her employment because of her status as a cancer survivor.
She seeks no accommodation of any sort—indeed, her entire
case rests on the proposition that she is “fit as a fiddle,”
Adams Decl. ¶ 47, and perfectly able to serve anywhere in the
world no matter the conditions without requiring the services
of medical specialists for follow-up care. See Pl.’s Mem. in
Opp’n to Def.’s 2d Mot. to Dismiss or for Summ. J. 33 (“Ms.
 10
Adams needs no accommodation to perform the duties of a
foreign service officer.”).

“Disability” is another term of art under the statute that
carries a specific meaning. An individual is disabled under
the Rehabilitation Act only if she can show that she (1) “has a
physical or mental impairment which substantially limits one
or more . . . major life activities,” (2) “has a record of such an
impairment,” or (3) “is regarded as having such an
impairment.” 29 U.S.C. § 705(20)(B). In other words, as the
Supreme Court explained when interpreting nearly identical
language in the ADA, “to fall within this definition one must
have an actual disability . . . , have a record of a disability
. . . , or be regarded as having one.” Sutton v. United Air
Lines, Inc., 527 U.S. 471, 478 (1999). Adams argues that she
meets all three definitions, and we will examine each in turn.

Before doing so, we observe that all three disability
definitions include a reference—central to this case—to a
substantial limitation on a major life activity. To qualify as
disabled, Adams must therefore do more than show that she
has, had, or was regarded as having an impairment of some
sort. Rather, she must show that her alleged impairment is,
was, or was believed to be one that “substantially limits one
or more . . . major life activities.” 29 U.S.C. § 705(20)(B). In
other words, the impairment must be one whose “severity is
such” that it qualifies under the statutory definition. H.R.
REP. NO. 101-485, pt. 2, at 52 (1990) (internal quotation
marks omitted) (explaining definition of the term “disability”
for purposes of the ADA); see also Toyota Motor Mfg. v.
Williams, 534 U.S. 184, 195 (2002) (“Merely having an
impairment does not make one disabled for purposes of the
[Act]. Claimants also need to demonstrate that the
impairment limits a major life activity.”). The Act nowhere
defines the phrase “major life activity,” but the Supreme
 11
Court has explained that “the word ‘major’ denotes
comparative importance and suggests that the touchstone for
determining an activity’s inclusion under the statutory rubric
is its significance.” Bragdon v. Abbott, 524 U.S. 624, 638
(1998) (alteration and internal quotation marks omitted); see
also Toyota, 534 U.S. at 197 (“‘Major’ in the phrase ‘major
life activities’ means important.”). Accordingly, while “such
basic abilities as walking, seeing, and hearing” easily qualify,
Toyota, 534 U.S. at 197; see also Desmond v. Mukasey, No.
07-5139, Slip op. at 15-19 (D.C. Cir. 2008) (recognizing
sleeping as a major life activity), activities that lack “central
importance to most people’s daily lives” will not satisfy the
statute, Toyota, 534 U.S. at 198; see also Singh v. George
Washington Univ. Sch. of Med., 508 F.3d 1097, 1104 (D.C.
Cir. 2007) (holding that test-taking is not a major life activity
under the ADA). For reasons explained in greater detail
below, see infra Part III, when the employee alleges pure
discrimination on the basis of a disability the claimed
limitation need have nothing to do with the employee’s ability
to work. By contrast, when an employee seeks a workplace
accommodation, the “accommodation must be related to the
limitation that rendered the person disabled.” Nuzum v.
Ozark Auto. Distribs., Inc., 432 F.3d 839, 848 (8th Cir. 2005).
The reason is this: as the ADA’s legislative history makes
clear, the substantial limitation and major life activity
requirements act as statutory filters distinguishing those
suffering from relatively serious impairments from those with
“minor, trivial impairment[s].” H.R. REP. NO. 101-485, pt. 2,
at 52 (explaining that under the ADA a person with “a simple
infected finger is not impaired in a major life activity”).
Accordingly, if Adams can show that her impairment
substantially limited an activity qualifying as a “major life
activity” under the Act—work-related or not—then she
qualifies as disabled under the statute.
 12
With this framework in mind, we turn to the sole issue
before us: whether Adams qualifies as disabled under one or
more of the Act’s three disability definitions. Because we can
easily dispose of Adams’s arguments under two of those
definitions, we address them first.

Actual Disability
Adams’s first claim—that the State Department
discriminated against her on the basis of “a physical or mental
impairment which substantially limits one or more . . . major
life activities,” 29 U.S.C. § 705(20)(B)(i)—fails for an
obvious reason: Adams’s breast cancer—her only claimed
impairment—was gone by the time the State Department
made its allegedly discriminatory employment decisions. As
the government points out, Adams’s illness had been fully
treated by November 2003, at which point her doctors
pronounced her “cancer-free” and “in completed remission.”
Letter from Dr. Mark A. O’Rourke 1 (Nov. 19, 2003). She
thus had no physical impairment either in December 2003
(when the State Department revoked her Class 1 medical
clearance) or in March 2004 (when MED denied her waiver
request). Dr. O’Rourke made the same point, explaining that
Adams “does not have an active illness or condition” but must
remain vigilant given her “history of breast cancer” in order
to “detect a return of her cancer.” O’Rourke Decl. ¶¶ 12-13
(emphases added). Accordingly, the State Department could
not have discriminated against Adams “solely by reason of
her . . . disability,” 29 U.S.C. § 794(a), given that her
“impairment” had already been eradicated. At oral argument,
Adams’s counsel suggested that the risk of cancer recurrence
could itself constitute a physical impairment, but because
Adams never made that allegation in the district court, see
Adams, 484 F. Supp. 2d at 20 n.2, we will not consider it
here. See Flynn v. Comm’r, 269 F.3d 1064, 1068-69 (D.C.
Cir. 2001) (noting that, absent exceptional circumstances,
 13
arguments not made to the district court are forfeited). And
given that Adams had no impairment at the time the allegedly
discriminatory actions took place, we need not decide
whether she was substantially limited in a major life activity
for purposes of the actual disability definition.

“Regarded as” Having a Disability
An individual is “regarded as” disabled if her employer
“mistakenly believes that [the] person has a physical
impairment that substantially limits one or more major life
activities” or “mistakenly believes that an actual, nonlimiting
impairment substantially limits one or more major life
activities.” Sutton, 527 U.S. at 489. Although many circuits
have recognized working as a major life activity, see, e.g.,
Bartlett v. N.Y. State Bd. of Law Exam’rs, 226 F.3d 69, 80 (2d
Cir. 2000); EEOC v. R. J. Gallagher Co., 181 F.3d 645, 654
(5th Cir. 1999), both the Supreme Court and this court have
scrupulously avoided deciding whether working constitutes a
major life activity for purposes of the Act. See Sutton, 527
U.S. at 492; Gasser v. District of Columbia, 442 F.3d 758,
763 n.7 (D.C. Cir. 2006) (noting “the difficulties the issue
presents” (internal quotation marks omitted)). Instead, for
purposes of analysis, we have assumed without deciding that
working qualifies. See Duncan v. WMATA, 240 F.3d 1110,
1114 n.1 (D.C. Cir. 2001) (en banc).

Doing the same here, we reject Adams’s claim. “[T]o be
regarded as substantially limited in the major life activity of
working, one must be regarded as precluded from more than a
particular job.” Murphy v. United Parcel Serv., Inc., 527 U.S.
516, 523 (1999). Adams must therefore present enough
evidence to persuade a reasonable jury that the State
Department viewed her as “precluded from more than one
type of job, a specialized job, or a particular job of choice.”
Sutton, 527 U.S. at 492. She failed to carry this burden.
 14
Nothing in the record reveals that the State Department
believed Adams was unable to hold any position other than
that of Foreign Service officer—and even then, the
Department thought her unable to serve only at certain
“hardship posts” overseas. Adams argues that by denying her
a Class 1 medical clearance the State Department revealed
that it regarded her as unable to hold a host of other
government jobs requiring similar clearances, but such an
interpretation would mean that every Foreign Service
candidate denied a Class 1 medical clearance would be
disabled under the Rehabilitation Act. See Thompson v. Rice,
422 F. Supp. 2d 158, 175-76 (D.D.C. 2006). We decline to
adopt such a broad reading of the statute.

“Record of” a Disability
Seeking to “make clearer that the [Act’s] coverage . . .
extends to persons who have recovered—in whole or in
part—from a handicapping condition, such as a mental or
neurological illness, a heart attack, or cancer,” S. REP. NO. 93-
1297, at 38-39 (1974), Congress amended the Rehabilitation
Act in 1974 to cover not only those individuals with
impairments that substantially limit a major life activity, but
also those having “a record of such an impairment,” Pub. L.
No. 93-516, § 111, 88 Stat. 1617, 1619 (now codified at 29
U.S.C. § 705(20)(B)(ii)) (emphasis added). The “record of”
definition was tailor-made for plaintiffs who, like Adams,
claim they once suffered from a physical or mental
impairment that substantially limited a major life activity,
recovered from the impairment, but nonetheless faced
employment discrimination because of it. See 29 C.F.R. pt.
1630, app. § 1630.2(k) (explaining that the “record of”
definition “protects former cancer patients from
discrimination based on their prior medical history”).
 15
Our dissenting colleague seems to adopt a narrow
reading of the term “record,” suggesting that it refers only to
tangible documentation of the plaintiff’s impairment. See
Dissenting Op. 6-7. But Department of Health and Human
Services (HHS) regulations interpreting the Rehabilitation
Act—which the Supreme Court has called a “particular[ly]
significan[t]” source of guidance, Toyota, 534 U.S. at 195;
Bragdon, 524 U.S. at 632—define the phrase “has a record of
such an impairment” more broadly, namely “has a history of,
or has been misclassified as having, a mental or physical
impairment that substantially limits one or more major life
activities,” 45 C.F.R. § 84.3(j)(2)(iii) (emphasis added).
Thus, although “record of” disability claims will often
involve tangible documents of some kind, such as medical
reports or employment forms detailing a previous medical
condition, plaintiffs may satisfy the “record of” definition
simply by showing that they “ha[ve] a history of” a qualifying
impairment. Id. And just as a plaintiff may not qualify as
disabled or regarded as disabled based on an illness alone—
even a serious illness like cancer—evidence of a prior illness,
without more, is insufficient to show a record of disability.
Because the Act protects individuals having a “record of such
an impairment,” Adams must show that her alleged
impairment “substantially limit[ed] one or more . . . major life
activities.” 29 U.S.C. § 705(20)(B) (emphasis added); see
Gallagher, 181 F.3d at 655 (“[I]t is not enough for [a] . . .
plaintiff to simply show that he has a record of a cancer
diagnosis; in order to establish the existence of a “disability” .
. . there must be a record of an impairment that substantially
limits one or more of the . . . plaintiff’s major life activities.”).

Our inquiry under the “record of” definition therefore
follows a three-step process. First, we ask if Adams has a
history of a mental or physical impairment. If so, we ask
whether the impairment limited an activity qualifying as a
 16
major life activity under the Act. Finally, if both the
impairment and activity pass muster under the statute, we ask
whether the alleged limitation was substantial. We consider
each of these issues in turn.

Here it is undisputed both that Adams has a history of
breast cancer and that breast cancer qualifies as a “physical
impairment” under the Act. Indeed, commentary
accompanying the HHS regulations expressly names “cancer”
as part of a “representative list of disorders and conditions
constituting physical impairments.” Bragdon, 524 U.S. at
633 (quoting 42 Fed. Reg. 22,676, 22,685 (1977)); see also
45 C.F.R § 84.3(j)(2)(i) (defining “impairment” as “any
physiological disorder or condition, cosmetic disfigurement,
or anatomical loss affecting one or more of the following
body systems: neurological; musculoskeletal; special sense
organs; respiratory, including speech organs; cardiovascular;
reproductive, digestive, genito-urinary; hemic and lymphatic;
skin; and endocrine”). And because the government nowhere
argues that breast cancer fails to qualify as an “impairment”
under the Act, we will not belabor the point.

Having found that Adams has a history of an impairment,
we next determine whether that impairment has limited any of
her major life activities. Adams argues that it has in two
ways. First, she contends that after her various surgeries—
which required brief hospital stays—she “was unable to care
for herself and unable to work.” Appellant’s Opening Br. 39.
Under Toyota, however, “the impairment’s impact must . . .
be permanent or long term.” 534 U.S. at 198; see also
Haynes v. Williams, 392 F.3d 478, 483 & n.4 (D.C. Cir.
2004). Here, the evidence shows that Adams’s difficulty
caring for herself, working, performing household chores, and
driving lasted for only several weeks following her surgeries.
Assuming any or all of these activities qualify as major life
 17
activities under the Act, we agree with the district court that
because Adams’s “recovery times . . . consisted only of
several weeks,” they were “hardly enough to qualify as . . .
permanent or long-term.” Adams, 484 F. Supp. 2d at 22; see
also Sutton v. Lader, 185 F.3d 1203, 1209 (11th Cir. 1999)
(“A temporary inability to work while recuperating from
surgery is not . . . a permanent or long-term impairment and
does not constitute evidence of a disability covered by the
Act.”).

Adams’s second argument is that her cancer substantially
limited her in the major life activity of engaging in sexual
relations. Adams alleges that although she remains cancer-
free, has an “excellent prognosis,” no longer requires ongoing
cancer treatment, and “has no particular limits on her work
activities,” she remains “limited in the major life activity of
sexual contact and romantic intimacy.” Am. Compl. ¶ 12.
According to Adams, her cancer treatment left a “residual
effect . . . that may never resolve”—one that is “psychological
in nature.” Adams Decl. ¶ 48. She explains:

Like many breast cancer survivors, whether by
virtue of my discomfort with the way my body
looks, loss of sensation after my surgeries, my
deep-seated fear that prospective suitors will
reject me because of my history of cancer, loss
of a breast, and current physical appearance, or
the side effects of medication that causes loss
of libido, I now find that the prospect of dating
and developing an intimate relationship is just
too painful and frightening. While I have
overcome the physical disease, my ability to
enter into romantic relationships has been
crippled indefinitely and perhaps permanently.
 18
Id. ¶ 49.

This circuit has yet to decide whether sexual relations
constitutes a major life activity for purposes of the Act.
Arguing that it does, Adams relies on the Supreme Court’s
holding in Bragdon v. Abbott that human reproduction
qualifies as a major life activity, see 524 U.S. at 638, and the
government’s brief presents no argument to the contrary.
Based on the statute’s text, the Supreme Court’s reasoning in
Bragdon, and a hefty dose of common sense, we hold that
engaging in sexual relations qualifies as a major life activity
under the Act.

Beginning with the statute, we can easily conclude
without resorting to the dictionary that engaging in sexual
relations clearly amounts to an “activity” in any sense of that
word. As for the word “major,” the Supreme Court has
explained that “the touchstone for determining an activity’s
inclusion under the statutory rubric is its significance.” Id.
(internal quotation marks omitted). At the risk of stating the
obvious, sex is unquestionably a significant human activity,
one our species has been engaging in at least since the biblical
injunction to “be fruitful and multiply.” Genesis 1:28. As a
basic physiological act practiced regularly by a vast portion of
the population, a cornerstone of family and marital life, a
conduit to emotional and spiritual fulfillment, and a crucial
element in intimate relationships, sex easily qualifies as a
“major” life activity.

Bragdon supports this self-evident conclusion. There the
Supreme Court held that asymptomatic HIV constitutes a
disability under the ADA because it is a physical impairment
that substantially limits the major life activity of reproduction.
524 U.S. at 637-41. Our holding follows directly from
Bragdon. In concluding that reproduction meets the statutory
 19
definition, the Bragdon Court explained that “[r]eproduction
and the sexual dynamics surrounding it are central to the life
process itself.” Id. at 638 (emphasis added). Furthermore,
Bragdon explains that one of the ways in which HIV limits
reproduction is by creating a risk that an infected individual
will transmit the disease to another while engaging in sexual
contact. See id. at 639. Finally, the Court placed special
emphasis on an opinion issued by the Justice Department’s
Office of Legal Counsel (OLC) stating that “‘[t]he life
activity of engaging in sexual relations is threatened and
probably substantially limited by the contagiousness of the
virus.’” Id. at 643 (quoting Application of Section 504 of the
Rehabilitation Act to HIV-Infected Individuals, 12 Op. Off.
Legal Counsel 264, 274 (1988)). It bears mentioning that
when Congress passed the ADA—a statute directly patterned
on the Rehabilitation Act—it considered this same OLC
opinion, explaining that HIV-infected individuals qualify as
disabled “because of a substantial limitation to procreation
and intimate sexual relationships.” H.R. REP. NO. 101-485,
pt. 2, at 52 (emphasis added); see also S. REP. NO. 101-116, at
22 (1989) (citing OLC opinion).

Based on this reasoning, many courts, including district
courts in this circuit, have read Bragdon to imply that
engaging in sexual relations qualifies as a major life activity.
See, e.g., McAlindin v. County of San Diego, 192 F.3d 1226,
1234 (9th Cir. 1999); Norden v. Samper, 503 F. Supp. 2d 130,
151 (D.D.C. 2007); Sussle v. Sirina Prot. Sys. Corp., 269 F.
Supp. 2d 285, 298-99 (S.D.N.Y. 2003); Powell v. City of
Pittsfield, 221 F. Supp. 2d 119, 146 (D. Mass. 2002). And in
his separate Bragdon opinion, Chief Justice Rehnquist took a
similarly pragmatic view of the Court’s holding:

Calling reproduction a major life activity is
somewhat inartful. Reproduction is not an
 20
activity at all, but a process. One could be
described as breathing, walking, or performing
manual tasks, but a human being (as opposed
to a copier machine or a gremlin) would never
be described as reproducing. I assume that in
using the term reproduction . . . the Court [is]
referring to the numerous discrete activities
that comprise the reproductive process . . . .

524 U.S. at 659 n.2 (Rehnquist, C.J., concurring in the
judgment in part and dissenting in part). Thus, whether
Bragdon explicitly recognizes sexual relations as a major life
activity or merely strongly suggests as much, we have little
difficultly concluding that sexual relations is a major life
activity under the Act.

Having decided that engaging in sexual relations
qualifies as a major life activity, we next determine whether
Adams has sufficiently alleged a substantial limitation on that
activity. This is an individualized inquiry that focuses on
Adams’s own experience. See Toyota, 534 U.S. at 198
(requiring plaintiffs “to prove a disability by offering
evidence that the extent of the limitation . . . in terms of their
own experience . . . is substantial” (internal quotation marks
omitted) (second omission in original)). Moreover, “if a
person is taking measures to correct for, or mitigate, a
physical or mental impairment, the effects of those
measures—both positive and negative—must be taken into
account when judging whether that person is ‘substantially
limited’ in a major life activity and thus ‘disabled’ under the
Act.” Sutton, 527 U.S. at 482 (emphasis added).
Accordingly, in determining whether Adams’s breast cancer
substantially limited her in a major life activity, “[w]e must
consider the actual effects of [her] impairment and the side
effects of [her] treatment.” Gallagher, 181 F.3d at 654.
 21
Finally, in determining the substantiality of a claimed
limitation, we may consider: (1) “[t]he nature and severity of
the impairment;” (2) “[t]he duration or expected duration of
the impairment;” and (3) “[t]he permanent or long term
impact, or the expected permanent or long term impact of or
resulting from the impairment.” 29 C.F.R. § 1630.2(j)(2)
(EEOC regulations interpreting the ADA); cf. Toyota, 534
U.S. at 194 (assuming without deciding that EEOC
regulations are reasonable and declining to decide what
deference, if any, they are due).

According to Adams, her breast cancer treatment
rendered her completely unable to engage in sexual relations.
Due to the scarring from her mastectomy and breast
reconstruction, her overall post-surgery physical appearance,
lack of physical sensation, loss of libido accompanying her
medication, or some combination of those factors, she claims
that her “ability to enter into romantic relationships has been
crippled indefinitely and perhaps permanently.” Adams Decl.
¶ 49. The government nowhere challenges Adams’s assertion
that she was substantially limited in her ability to engage in
sexual relations or that this limitation was anything but a
direct result of her cancer treatment. By failing to do so, the
government has effectively conceded—at least for summary
judgment purposes—that Adams’s claimed impairment did,
in fact, substantially limit her in a major life activity. See
Bragdon, 524 U.S. at 641 (noting that “[t]estimony from
[plaintiff] that her HIV infection controlled her decision not
to have a child [was] unchallenged” and therefore taken as
true “[i]n the context of reviewing summary judgment”). Of
course, a jury hearing Adams’s testimony on this point could
well decide otherwise. But at this stage of the litigation,
Adams’s breast cancer qualifies as a disability because it
amounted to a physical impairment that substantially limited
her in the major life activity of sexual relations.
 22
The dissent disagrees, finding Adams’s characterization
of her substantial limitation insufficient for lack of “evidence
that her impairment substantially limited her in a major life
activity at any time before the alleged discriminatory acts in
December 2003 and March 2004.” Dissenting Op. 2. This
argument fails for two reasons. First, the government never
raised it, and we therefore “have no occasion to reach [it] in
this case.” Bell v. Wolfish, 441 U.S. 520, 532 n.13 (1979);
see also United States ex rel. Totten v. Bombardier Corp., 380
F.3d 488, 497 (D.C. Cir. 2004) (“Ordinarily, arguments that
parties do not make on appeal are deemed to have been
waived.”). Second, even were we to consider the argument,
our standard of review on summary judgment requires us to
view the evidence in Adams’s favor, drawing all reasonable
inferences from her statements. See Woodruff v. Peters, 482
F.3d 521, 526 (D.C. Cir. 2007). Although Adams could have
stated with greater precision when her sexual limitation first
arose, we think it reasonable to conclude that her alleged
inability to engage in sexual relations began in September
2003 when Adams had her right breast removed and began
taking tamoxifen—the two treatment methods driving her
alleged sexual limitation. Given that Adams’s limitation
flowed directly from her post-surgery cosmetic disfigurement
and drug regimen, it makes no sense to infer, as the dissent
does, that the limitation first arose well into—or long after—
her course of treatment. See Dissenting Op. at 2, 13 n.11.
Accordingly, although we agree with the dissent that Adams
must have “a record of an impairment that substantially limits
one or more of the . . . plaintiff’s major life activities,” id. at 5
(quoting Gallagher, 181 F.3d at 655), we, unlike the dissent,
believe that Adams has made the requisite showing.

In a footnote, our dissenting colleague offers a second
argument not made by the government, namely that the Act
offers Adams no protection because “the impairment—
 23
cancer—and the claimed limitation—fear of sexual activity—
never coincided.” Id. at 12 n.11. In the dissent’s view,
Adams could thus find no refuge in the Act even if she had
expressly stated that her sexual limitation commenced
immediately following her mastectomy and before the State
Department’s alleged discriminatory acts. This interpretation
renders the Rehabilitation Act a Catch-22 for cancer survivors
like Adams: when impaired, she had no limitation, and when
substantially limited, she’d been cured of her impairment.
Not only does this approach render the Rehabilitation Act a
mirage for claimants like Adams, but it ignores Sutton’s
instruction that when identifying substantial limitations under
the Act, courts must take into account “both positive and
negative” effects of treatment measures. 527 U.S. at 482.
The dissent’s approach would exclude from the Act’s
coverage cancer patients who experienced few limitations on
their life activities until they began the often grueling process
of surgery, radiation, and/or chemotherapy. This seems an
odd result for a remedial statute designed in no small part to
protect cancer survivors from employment discrimination.
See S. REP. NO. 93-1297, at 38-39.

Having left the sufficiency of Adams’s claims
unchallenged, the government’s only argument boils down to
this: an employer cannot be held liable for discrimination
based on a record of a disability unless it knows not only
about the employee’s alleged history of a physical or mental
impairment, but also how that impairment substantially
limited a major life activity. As the government sees it,
because Adams had not told the State Department—at the
time it revoked her medical clearance—that her cancer
limited her ability to engage in sexual relations, it cannot be
held responsible for any alleged discrimination. Far from
constituting a “spectacular red herring,” Dissenting Op. 8, this
is the sum total of the government’s argument before this
 24
court. For her part, Adams, again relying on Bragdon, rejects
the view “that an employer is permitted to discriminate
against a person with a disability so long as it is unaware of
how the employee meets the definition of disability.”
Appellant’s Opening Br. 34. Finding no support for the
government’s interpretation in the statute or the case law
interpreting it, we agree with Adams.

Once again, Bragdon provides helpful guidance. There
an individual infected with HIV visited a dentist. Aware of
the patient’s HIV status, the dentist performed an examination
but upon discovering a cavity, refused to fill it in his office.
Bragdon, 524 U.S. at 628-29. The patient sued under the
ADA, alleging that the dentist had denied her equal access to
a public accommodation on the basis of a disability. See 42
U.S.C. § 12182(a) (prohibiting discrimination on the basis of
disability by any person operating a place of public
accommodation). After holding that the plaintiff’s HIV
qualified as a disability under the ADA, the Supreme Court
concluded that “no triable issue of fact impedes a ruling on
the question of statutory coverage.” Bragdon, 524 U.S. at
641. Notably the Court said nothing about whether the
dentist knew or cared that the plaintiff was limited in the
major life activity of reproduction—and that limitation had
nothing to do with the dentist’s refusal to treat the plaintiff—
yet the Court concluded that the dentist could be found liable
just the same. For the Court, it was enough that (1) the
dentist knew the plaintiff had a physical impairment (HIV),
(2) the impairment did, in fact, substantially limit a major life
activity, and (3) the dentist denied treatment because of the
plaintiff’s impairment. The same analysis applies here.
Viewed in the light most favorable to Adams, the record
shows (1) the State Department knew Adams had a record of
an impairment (breast cancer), (2) the impairment did, in fact,
substantially limit a major life activity, and (3) the State
 25
Department denied Adams employment because of her cancer
history. True, Bragdon involved the ADA’s “actual
disability” definition, as the plaintiff had the impairment at
the time she was refused treatment, but we see no principled
reason why the same logic should not apply when the alleged
discrimination is based on a history of a qualifying disease
rather than on its present manifestation.

Even though Adams relies heavily on Bragdon, the
government’s brief never mentions the case. Instead, it relies
on two cases from this circuit, Crandall v. Paralyzed
Veterans of America, 146 F.3d 894 (D.C. Cir. 1998), and
Department of State v. Coombs, 482 F.3d 577 (D.C. Cir.
2007). But neither of those cases stands for the proposition
that an employer must know in what way the employee’s
impairment limits a major life activity in order to be held
liable for disability discrimination. For example, in Crandall
we held that a plaintiff’s Rehabilitation Act claim failed
because “he never told anyone” about his alleged impairment,
i.e., “that he had been diagnosed with or treated for bipolar
disorder or any other psychiatric disorder,” 146 F.3d at 895,
and we explained that to be held liable for disability
discrimination an employer needs “awareness of the disability
itself, and not merely an awareness of some deficiency in the
employee’s performance that might be a product of an
unknown disability,” id. at 897. In Coombs, a Foreign
Service officer challenged a negative performance evaluation
and subsequent termination decision by the Foreign Service’s
Performance Standards Board. 482 F.3d at 578. After that
decision was made, the employee submitted an affidavit from
a psychiatrist alleging that he had various mental disorders.
We held that no Rehabilitation Act discrimination claim could
lie because, as was true in Crandall, the defendant employer
had no knowledge of any alleged impairment when it made
the challenged decision. Indeed, we explained—in language
 26
relied on by the government—that the plaintiff must show
“that the employer knew or had reason to know about the
employee’s alleged impairment when it made an adverse
employment decision.” Id. at 579 (emphasis added). Note
the use of the word “impairment” rather than “limitation.”
Neither Crandall nor Coombs holds that an employer must
know anything more than the employee’s impairment to be
held liable for discrimination. Indeed, the question we face
here—whether the employer must know about the employee’s
particular limitation—was not before the court in either of
those cases.

The district court cited two additional cases when
rejecting Adams’s “record of” claim—cases also cited in the
government’s brief: Colwell v. Suffolk County Police
Department, 158 F.3d 635 (2d Cir. 1998), and Hilburn v.
Murata Electronics North America, Inc., 181 F.3d 1220 (11th
Cir. 1999). Neither case supports the government’s position.
In Colwell, the plaintiff claimed that a previous cerebral
hemorrhage, which caused him to be hospitalized for thirty
days, constituted a record of an impairment that substantially
limited a major life activity. 158 F.3d at 645. The Second
Circuit disagreed, explaining that although the plaintiff’s
“hospitalization is certainly a record of an impairment, and
the hemorrhage was certainly an impairment,” the plaintiff
failed “to show that the impairment for which he was
hospitalized was imposing a substantial limitation on one or
more of his major life activities.” Id. at 646. The court then
recounted the plaintiff’s evidence, concluding that none of it
demonstrated a substantial limitation on any major life
activity. Id. (noting that the “only evidence of the extent of
the impairment caused by [plaintiff]’s hemorrhage” was a
brief hospital stay, six months recovery at home, and several
months of light duty upon his return to work). We agree with
the government—and the Colwell court—that a record of
 27
temporary hospitalization, without more, is insufficient to
prove a disability. But more to the point, nothing in Colwell
suggests that the record presented to the employer had to
include information detailing the plaintiff’s substantial
limitation; the question was whether the record before the
court established that the statutory standard had been met.
Similarly, in Hilburn the Eleventh Circuit explained that “the
record-of-impairment standard is satisfied only if [plaintiff]
actually suffered a physical impairment that substantially
limited one or more . . . major life activities.” 181 F.3d at
1229. There, the plaintiff presented no evidence to the court
that her claimed impairment, heart disease, had in fact limited
any of her major life activities. See id. Here, by contrast,
Adams not only has shown that the State Department was
aware of her breast cancer history, but also has furnished
uncontroverted evidence that the impairment did, in fact,
substantially limit her ability to engage in sexual relations.
We find this sufficient under the Act’s “record of” definition.
Just as in Bragdon, whether the State Department knew the
precise details of her limitation is neither here nor there.

EEOC guidance interpreting the ADA’s “record of”
regulations supports this conclusion—indeed, it seems to go
further. According to the guidance, “[t]he impairment
indicated in the record must be an impairment that would
substantially limit one or more of the individual’s major life
activities.” 29 C.F.R. pt. 1630, app. § 1630.2(k) (emphasis
added). And cancer, the guidance suggests, is a paradigmatic
example of just such an impairment. See id. (“[T]his
provision protects former cancer patients from discrimination
based on their prior medical history.”).

Moreover, the government’s proposed knowledge
requirement conflicts with other aspects of federal hiring
procedures. According to HHS regulations interpreting the
 28
Rehabilitation Act, federal employers “may not make
preemployment inquir[ies] of an applicant as to . . . the nature
or severity of a handicap.” 45 C.F.R. § 84.14(a). Although
this prohibition does not extend to “an applicant’s ability to
perform job-related functions,” id., no one suggests that
engaging in sexual relations has anything to do with serving
as a Foreign Service officer. Thus, under the government’s
view, Adams’s claim fails because the State Department
lacked knowledge of a fact that it was legally barred from
asking about. That makes no sense at all.

For a similar reason, we reject the government’s
jurisdictional argument that Adams failed to exhaust her
administrative remedies by omitting a reference to her sexual
limitation on her formal EEO complaint. No such disclosure
was necessary. A complainant need only file a signed
statement with the agency that is “sufficiently precise to
identify the aggrieved individual and the agency and to
describe generally the action(s) or practice(s) that form the
basis of the complaint.” 29 C.F.R. § 1614.106(c) (emphasis
added). Under this standard, Adams’s complaint sufficed.
Indeed, the EEO “Formal Complaint of Discrimination” form
simply asked Adams, “Why do you believe you were
discriminated against?” and to “[e]xplain specifically how
you were discriminated against (treated differently from other
employees or applicants) because of your physical
disabilities.” Nothing on the form asked how her impairment
substantially limited a major life activity, and for good
reason: given that employees often file administrative
complaints without the aid of counsel, it would frustrate the
statute’s aim to expect employees not only to explain in their
complaints the allegedly discriminatory action they suffered,
but also to list the precise way in which they satisfy the
Rehabilitation Act’s definitional section in 29 U.S.C. §
705(20)(B). Here, Adams alleged that the State Department
 29
denied her employment because she once had stage-one
breast cancer. That suffices for administrative exhaustion
purposes. Cf. Shehadeh v. Chesapeake & Potomac Tel. Co.
of Md., 595 F.2d 711, 727 (D.C. Cir. 1978) (noting in a Title
VII case that “complaints to the Commission are to be
construed liberally since very commonly they are framed by
persons unschooled in technical pleading”).

III.
It seems to us that what’s driving the government’s
argument is basic confusion over the various ways in which a
person can suffer discrimination under the Act. An
employer’s knowledge of an employee’s limitation—as
opposed to her impairment—is certainly relevant when the
disabled employee requests a workplace accommodation. As
discussed above, in such cases the accommodation sought
must relate to the limitation at issue. See McAlindin, 192 F.3d
at 1237 (“[T]he major life activities affected by the
impairment are relevant only to the extent that they affect the
type of accommodation that may be necessary and whether
the employer has provided a reasonable accommodation.”);
Taylor v. Principal Fin. Group, Inc., 93 F.3d 155, 164 (5th
Cir. 1996) (“This distinction is important because the ADA
requires employers to reasonably accommodate limitations,
not disabilities.”). But in pure discrimination cases like
Adams’s, an employer’s knowledge of the precise limitation
at issue is irrelevant; so long as the employee can show that
her impairment ultimately clears the statutory hurdle for a
disability—i.e., it substantially limited a major life activity—
the employer will be liable if it takes adverse action against
her based on that impairment.

Consider the following hypothetical. Suppose a
telephone receptionist takes a leave of absence from work
because he’s experiencing headaches only to discover that he
 30
has a malignant brain tumor. The tumor is surgically
removed, rendering the employee cancer-free. As a result of
the treatment, however, the employee experiences significant
hearing loss. Now suppose the employer learns about the
tumor—but has no idea about the hearing loss—and informs
the employee he’s not welcome back at work because he had
cancer. Is that illegal discrimination under the Act? Of
course it is. In such situations it makes no difference whether
an employer has precise knowledge of an employee’s
substantial limitation; as in Bragdon, it is enough for the
employer to know about the impairment. Cf. Blackwell v.
Dep’t of Treasury, 830 F.2d 1183, 1183-84 (D.C. Cir. 1987)
(stating that the Rehabilitation Act does not require
complainants to provide employers with “precise notice of a
handicap”). If, however, the hypothetical telephone
receptionist sought an accommodation from his employer so
that he could return to work, the employer would obviously
need to know about the employee’s claimed hearing
limitation. The upshot is this: if an employer discriminates
against an employee on the basis of a physical or mental
impairment, or the record thereof, and if the impairment in
fact qualifies as a “disability” under the Act, i.e., it
substantially limits or once limited a major life activity, then
the employer may be vulnerable to a charge of employment
discrimination.

This conclusion makes sense because creating a
knowledge requirement in situations involving pure
discrimination would shield the most ignorant, irrational, and
prejudiced employers—precisely the kinds of employers
Congress intended the Act to reach. Under the government’s
theory, an employer could lawfully fire an employee solely
for revealing that she had recovered from ovarian cancer after
undergoing a hysterectomy, so long as the employer didn’t
know the effect such treatment has on reproduction. A better
 31
informed employer, however, would suffer the full
consequences of his decision. Congress could not have
intended ignorance to act as a safe harbor. Moreover, in the
government’s view, to preserve a claim under either the
Rehabilitation Act or the ADA, cancer survivors would have
to announce to employers, “Yes, I once had cancer, and it
substantially limited me in the following major life
activities.” Absent such disclosure, the employer could
discriminate at will simply because he didn’t like having
cancer survivors around the office, or because he harbored
“the irrational fear that they might be contagious.” Sch. Bd.
of Nassau County v. Arline, 480 U.S. 273, 284 (1987). As
amici point out in their brief, Congress enacted the
Rehabilitation Act and the ADA to forbid such blatantly
discriminatory actions, intending to protect cancer survivors
who qualify as disabled under the statute from employment
discrimination based on myths, fears, and stereotypes about
the disease.

IV.
In sum, because Adams has provided sufficient evidence
showing that she has a record of an impairment that
substantially limited her in a major life activity, and because
the government nowhere contested any of the evidence
Adams offered in support of her disabled status, we reverse
the district court’s grant of summary judgment to the State
Department and remand for proceedings consistent with this
opinion.

So ordered.
 KAREN LECRAFT HENDERSON, Circuit Judge, dissenting:
My colleagues and I agree that the only way Kathy Adams
(Adams) survives summary judgment in favor of the U.S.
Department of State (Department) on her Rehabilitation Act
claim is under 29 U.S.C. § 705(20)(B)(ii), the “record of
impairment” definition of “disability.”1 Applying the well-
settled standard set forth in Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986), I am convinced that Adams “has failed to make
a sufficient showing on an essential element of her case.”
Accordingly, I believe the district court correctly granted
summary judgment to the Department and I respectfully
dissent.2

1
The Rehabilitation Act of 1973 (Rehabilitation Act or Act)
defines “individual with a disability” as
“any person who—
(i) has a physical or mental impairment which
substantially limits one or more of such person’s
major life activities;
(ii) has a record of such an impairment; or
(iii) is regarded as having such an impairment.
Id. § 705(20)(B). Adams has no claim under section 705(20)(B)(i)
(“first prong”) because her physical impairment—Stage one breast
cancer—was “cured” by her mastectomy and she does not meet
section 705(20)(B)(iii) (“third prong”) under Gasser v. District of
Columbia, 442 F.3d 758 (D.C. Cir. 2006); see also Duncan v.
Washington Metro. Area Transit Auth., 240 F.3d 1110 (D.C. Cir.
2001) (en banc). Her remaining claim is her “record of impairment”
(“second prong”) claim.
2
In light of my dissent from the “record of impairment” holding,
I would not reach the question, as yet unanswered in this Circuit,
whether sexual activity constitutes a major life activity under the
statutory definition. In asserting that such a limitation exists, the
majority relies on Bragdon v. Abbott, 524 U.S. 624 (1998), in which
the United States Supreme Court held only that “reproduction” is a
 2

To be an “individual with a disability” under the second
prong of section 705(20)(B), Adams must “ha[ve] a record of
such an impairment.” “Such an impairment” refers to the first
prong, that is, an “impairment which substantially limits one or
more . . . major life activities,” 29 U.S.C. § 705(20)(B)(i). See
Webster’s Third New Int’l Dictionary 2283 (1993) (defining
“such” as “having a quality already or just specified”). Thus,
there must be a record, or a history, showing that at some time
before the alleged discrimination Adams had a disability under
the first prong. See Heisler v. Metro. Council, 339 F.3d 622,
630 (8th Cir. 2003) (“To have a record of an impairment, an
employee must ‘ha[ve] a history of . . . a mental or physical
impairment that substantially limits one or more major life
activities.’ ” (quoting 29 C.F.R. § 1630.2(k) (alteration in
Heisler))). While it is undisputed that she had an
impairment—breast cancer—during the fall of 2003, she offered
no evidence that her impairment substantially limited her in a
major life activity at any time before the alleged discriminatory
acts in December 2003 and March 2004.3 Instead, Adams relied
on allegations made long after the fact. In her amended
complaint, filed some 15 months after the Department reduced
her medical clearance, Adams asserted for the first time that she
“is . . . limited in the major life activity of sexual contact and
romantic intimacy” and “[t]his limitation may be due to a
variety of physical and psychological effects of cancer

major life activity. See 424 U.S. at 638-39. The Bragdon Court did
not address whether sexual activity outside of the reproduction context
qualifies as Adams claims.
3
Because the inquiry focuses on “such person’s major life
activities,” 29 U.S.C. § 705(20)(B)(i) (emphasis added), it does not
suffice that a record of breast cancer can substantially limit a major
life activity. Instead, Adams must demonstrate that at the time of the
alleged discrimination she had such a record.
 3

treatment.” Adams v. Rice, No. 05-941, Am. Compl. ¶ 12
(D.D.C. filed March 9, 2005) (emphasis added).4 She elaborated
somewhat in a subsequent declaration:
Like many breast cancer survivors, whether by virtue of
my discomfort with the way my body looks, loss of
sensation after my surgeries, my deepseated fear that
prospective suitors will reject me because of my history
of cancer, loss of a breast, and current physical
appearance, or the side effects of medication that causes
loss of libido, I now find the prospect of dating and
developing an intimate relationship just too painful and
frightening.
Nov. 26, 2005 Decl. of Kathy E. Adams ¶ 49 (emphasis added).
In both statements, Adams described only a current (2005)
limitation, using a present tense verb and the adverb “now.” She
has never asserted that the limitation (and thus her disability)
existed before the alleged discrimination. In the absence of any
record—documentary, or otherwise—of a qualifying
impairment when she was allegedly discriminated against, the
second prong was not satisfied and therefore Adams was not as
a matter of law an “individual with a disability” protected under
the Act. That the second prong requires a record that manifests
both a physical or mental impairment and its substantial
limitation on a major life activity is reinforced by decisions from
other circuits.

4
Adams, herself a lawyer, made no mention of the alleged sexual
limitation in her EEOC complaint or her original district court
complaint. In fact, in her EEOC complaint dated July 22,
2004—several months after the alleged discrimination occurred—she
affirmatively declared that she had “resumed all physical activities,”
making no exception for sexual activities. Formal Compl. of
Discrimination 1 (emphasis added).
 4

In EEOC v. R.J. Gallagher Co., 181 F.3d 645 (5th Cir.
1999), the Fifth Circuit recognized that under the definition of
“disability” in the Americans with Disabilities Act (ADA), 42
U.S.C. § 12102(2)(A), which tracks almost verbatim the
Rehabilitation Act’s definition of “individual with a disability,”5
the historical record must indicate both an impairment and a
major life activity limitation. The Gallagher court relied on the
Supreme Court’s decision in Sutton v. United States, 527 U.S.
471 (1999) (Sutton), in which the Court held that neither of two
severely myopic sisters, who had been rejected for positions as
commercial airline pilots, had a disability under the ADA. The
Court explained that, although each sister had an impairment
(severe myopia), the impairment did not limit a major life
activity at the time they claimed they were discriminated against
because each sister’s vision was by then normal (or better) with
corrective lenses. Citing Sutton, the Gallagher court rejected a
portion of the EEOC interpretive guidance promulgated in 1991
stating that the record of impairment prong “ ‘protects former
cancer patients from discrimination based on their prior medical
history’ ” 181 F.3d at 655 (quoting 29 C.F.R. pt. 1630, App.
§ 1630.2(k)) (interpreting statutory phrase “record of such
impairment”). The court explained:

5
The ADA definition of “disability” provides:
The term “disability” means, with respect to an
individual—
(A) a physical or mental impairment that
substantially limits one or more of the major life
activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment.
42 U.S.C. § 12102(2).
 5

This broad position obviously cannot be the rule in the
wake of Sutton, which emphasizes both the ADA’s
requirement of individualized inquiry and a focus on the
actual effects of the impairment. In other words, it is not
enough for an ADA plaintiff to simply show that he has
a record of a cancer diagnosis; in order to establish the
existence of a “disability” under § 12102(2)(B), there
must be a record of an impairment that substantially
limits one or more of the ADA plaintiff’s major life
activities.
Id. (emphasis added). Here, as in Gallagher, there was a record
of cancer but no record of any substantial limitation it produced.
Even more on point is the Second Circuit’s decision in
Colwell v. Suffolk County Police Department, 158 F.3d 635 (2d
Cir. 1998). In Colwell, three police officers asserted they had
been passed over for promotion on account of the lingering
effects of past injuries, claiming they were disabled under all
three prongs of the ADA definition. The Second Circuit first
rejected the plaintiffs’ impairment claims under the first prong
because they failed to produce “evidence sufficient to show that
the limitation [each] suffered with respect to a major life activity
was substantial.” 158 F.3d at 645. The court then addressed the
plaintiffs’ record of impairment claims and rejected them as
well, quoting language from the same EEOC interpretive
guidance discussed in Gallagher.6 The interpretive language the

6
The EEOC interpretive guidance on the record of impairment
prong states in pertinent part:
The second part of the definition provides that an
individual with a record of an impairment that substantially
limits a major life activity is an individual with a disability.
The intent of this provision, in part, is to ensure that people
are not discriminated against because of a history of
disability. For example, this provision protects former
 6

Colwell court discussed states: “This part of the definition is
satisfied if a record relied on by an employer indicates that the
individual has or has had a substantially limiting impairment.”
29 C.F.R. pt. 1630, App. § 1630.2(k) (emphases added).
Relying on this language, the court rejected the plaintiffs’
contention that their personnel records “show[ed] a history of a
substantially limiting impairment” because “the records of
impairment that each plaintiff showed involved no greater
degree of limitation of major life activities than the continuing
impairments they showed.” 158 F.3d at 645. In the Second
Circuit’s view, the personnel records were inadequate to
establish a “record” of a qualifying impairment under the second
prong because they manifested only an impairment and not a
resulting major life activity limitation.
Like the plaintiffs in Colwell, Adams has pointed to a record
existing at the time of the alleged discrimination that identified
an impairment but none that even suggested a resulting
substantial limitation. To the contrary, the record in late 2003
to early 2004 painted a rosy picture of Adams’s condition,
indicating she had made a full recovery. See, e.g., 12/9/03
Letter from Adams to State Dep’t Office of Med. Servs.
(reporting after doctor visit: “Everything is fine.”); 11/19/03
Letter from Dr. Mark A. O’Rourke to State Dep’t (“At this time,

cancer patients from discrimination based on their prior
medical history. * * * This part of the definition is satisfied
if a record relied on by an employer indicates that the
individual has or has had a substantially limiting
impairment. The impairment indicated in the record must
be an impairment that would substantially limit one or more
of the individual’s major life activities. There are many
types of records that could potentially contain this
information, including but not limited to, education,
medical, or employment records.
29 C.F.R. pt. 1630, App. § 1630.2(k).
 7

Kathy has no job limitations whatsoever. She is cancer-free and
is able to undertake a full schedule of work, travel, and vigorous
sports, as she had already enjoyed. . . . I can say with complete
confidence that this history of breast cancer will not slow her
down one bit at all.”); 1/12/04 Letter from Dr. Mark A.
O’Rourke to State Dep’t Bd. of Exam’rs for Foreign Serv. (“She
has fully recovered from her surgeries . . . She remains cancer-
free. . . . Kathy’s post-cancer status is in no way incapacitating.
She has no performance limitations whatsoever on her ability to
work, travel, or engage in the vigorous sports she enjoys . . . .”).
Given that she had no record of a qualifying impairment when
the Department reduced her medical clearance and denied her a
waiver, she could not then be an individual with a disability
under 29 U.S.C. § 705(20)(B) so as to be protected by the Act.
In asserting otherwise, the majority does precisely what the Fifth
Circuit in Gallagher proscribed as contrary to Sutton, namely,
finding that a person has a disability based on a record of a
cancer diagnosis but without a record of a resulting substantial
limitation. See Gallagher, 181 F.3d at 655. The majority’s
holding similarly conflicts with the Second Circuit’s conclusion
in Colwell, 158 F.3d at 645.
Most recently, the Eleventh Circuit decided a first prong
Rehabilitation Act claim that is nonetheless strikingly similar to
Adams’s. In Garrett v. University of Alabama, Birmingham,
507 F.3d 1306, 1315 (11th Cir. 2007), the plaintiff, who was
also diagnosed with breast cancer, underwent two surgeries, a
course of radiation and chemotherapy treatments between
August 1994 and June 1995. She returned to work in July 1995
and on July 21, 1995, her supervisor allegedly demoted her on
account of her cancer. Garrett’s limitations included “caring for
herself, performing manual tasks, lifting, and working.” Id. at
1310. The Eleventh Circuit affirmed the grant of summary
judgment to the defendant, rejecting the plaintiff’s reliance “not
only upon the status of her impairments and limitations prior to
[demotion] but also [her] misplace[d] . . . reliance upon her
 8

condition years after . . . .” Id. at 1312. Adams’s reliance on her
belated claim of a sexual limitation in 2005 is equally
misplaced—and fatal to her case. In accepting her claim as a
sort of nunc pro tunc allegation, the majority directly clashes
with the Eleventh Circuit’s holding in Garrett.7 As the Eleventh
Circuit correctly stated: “The Rehabilitation Act does not
protect employees who become disabled after the discriminatory
act, but protects those employees who were disabled at the time
of the discriminatory act.” 507 F.3d at 1315.
Additionally, the majority’s focus on notice in this case is a
spectacular red herring. See maj. op. 23-28, 29-31. Notice is
not an issue because Adams did not have the requisite record of
which the Department could have had notice when it reduced
Adams’s medical clearance. Nonetheless, given the support for
such a requirement in the case law, I cannot let pass
unchallenged the majority’s dicta rejecting a notice requirement.
The Rehabilitation Act imposes liability only if the employer
discriminates against the applicant “solely by reason of her or
his disability,” 29 U.S.C. 794(a). In Crandall v. Paralyzed
Veterans of America, 146 F.3d 894 (D.C. Cir. 1998), we made
clear that the quoted language requires that the employer be on
notice of the claimed “disability,” that is, on notice of both the
impairment and the resulting limitation that together constitute
the disability.8 See § 705(20)(B)(i). In Crandall, the plaintiff

7
Adams’s 2005 allegations suffer from yet another defect the
Garrett court highlighted. Her amended complaint and her declaration
describe the causal link between her cancer treatment and the alleged
sexual limitation only “in general and vague terms,” 507 F.3d at 1315
(noting “the lack of any objective evidence of the extent of Garrett's
limitations”) (emphasis added). See Am. Compl. ¶ 12 (“may be due
to”); Adams Decl. ¶ 49 (“whether by virtue of”).
8
In Crandall, we applied the version of section 794(a) in effect at
the time of the alleged discrimination, which version prohibited
 9

was fired for “acts of rudeness” and afterward disclosed to the
employer that he had been diagnosed as suffering from bi-polar
disorder. The district court granted summary judgment to the
employer, holding that “no reasonable factfinder could have
found that [the employer] discriminated on the basis of [the
employee’s] disability, since it had neither actual nor
constructive notice of his disability when it fired him.” 146 F.3d
at 895. We affirmed, declaring quite broadly:
The courts of appeals have overwhelmingly agreed
that for this causal link to be shown the employer must
have acted with an awareness of the disability itself, and
not merely an awareness of some deficiency in the
employee’s performance that might be a product of an
unknown disability. They have so found under both the
Rehabilitation Act itself and the analogous provision of
the [ADA], 42 U.S.C. § 12112(a) (providing that no
employer “shall discriminate against a qualified
individual with a disability because of the disability of

discrimination against an “otherwise qualified handicapped individual
in the United States . . . solely by reason of his handicap,” 29 U.S.C.
§ 794(a) (1992). Although the language was amended in 1992 to
replace “handicap” with “disability,” see Pub. L. No. 102-569,
§ 102(p)(36), 106 Stat. 4344, 4360 (1992), the earlier version defined
“individual with handicaps” in the same way that the current version
defines “individual with a disability.” Compare 29 U.S.C.
§ 706(8)(B) (1992) with 29 U.S.C. § 705(2)(B)(2008).
Notwithstanding we applied the “handicap” version in Crandall, we
used the then-current statutory term “disability” throughout the text of
the opinion in place of the dated “handicap.” Compare 146 F.3d at
896 (quoting statutory prohibitions against discriminating against a
“handicapped individual . . . solely by reason of his handicap”) with
id. at 897 (rejecting argument that “if the poor performance causes
dismissal, then the dismissal was ‘by reason of'’ the disability” so as
to satisfy the statutory prohibition).
 10

such qualified individual . . . .”). See, e.g., Taylor v.
Principal Financial Group, Inc., 93 F.3d 155, 163 (5th
Cir. 1996) (“To prove discrimination [under the ADA],
an employee must show that the employer knew of such
employee’s substantial physical or mental limitation.”);
Morisky v. Broward County, 80 F.3d 445, 447-49 (11th
Cir. 1996) (liability under the ADA requires actual or
constructive notice of the disability); Collings v.
Longview Fibre Co., 63 F.3d 828, 834 (9th Cir. 1995)
(assuming plaintiffs had a medically recognizable drug
disability, they could not make out a case under the
ADA where they could not show that employer was
aware of it); Miller v. National Casualty Co., 61 F.3d
627, 629 (8th Cir. 1995) (under ADA, “[b]efore an
employer must make accommodation for the physical or
mental limitation of an employee, the employer must
have knowledge that such a limitation exists.”); Hedberg
v. Indiana Bell Tel. Co., 47 F.3d 928, 932 (7th Cir.1995).
146 F.3d at 896-97 (emphases added). That Crandall and the
decisions it quotes use “disability” and “limitation” rather than
“impairment”—each of which terms has a precise statutory
meaning—manifests that the employer must have notice of both
the impairment and the limitation that make up the disability.
And it is of no consequence that Crandall is a first prong case
because a second prong case must incorporate a first prong
disability. See infra note 11.
To support its contention that an employer need have notice
only of an impairment and not of a limitation (at least if the
limitation does not require accommodation, see maj. op. 29-30),
the majority looks to the Supreme Court’s decision in Bragdon
v. Abbott, 524 U.S. 624 (1998), in which the Court concluded
that a woman infected with the human immunodeficiency virus
(HIV) was disabled under the first prong because her
impairment, HIV, limited her major life activity of reproduction.
 11

524 U.S. at 631-48. The majority emphasizes that “the Court
said nothing about whether the dentist knew or cared that the
plaintiff was limited in the major act of reproduction.” Maj. op.
24. The Court’s silence, however, is unremarkable given that
the dentist’s knowledge vel non of the limitation was not one of
the issues the respondent dentist raised in his petition and on
which the court granted certiorari. See Bragdon, 524 U.S.628
(“We granted certiorari to review, first, whether HIV infection
is a disability under the ADA when the infection has not yet
progressed to the so-called symptomatic phase; and, second,
whether the Court of Appeals, in affirming a grant of summary
judgment, cited sufficient material in the record to determine, as
a matter of law, that respondent’s infection with HIV posed no
direct threat to the health and safety of her treating dentist.”)
(emphasis added).9

9
While I have assumed arguendo that sexual activity constitutes
a major life activity, see supra note 2, I note that the Department’s
position is that sexual activity “can” qualify “to the [extent] that
procreation may be implicated.” Oral Arg. at 20:15. But the
Department has nowhere accepted that Adams had that limitation at
the time of the medical clearance denial nor could it inasmuch as at
that point she had not even mentioned the limitation. In fact, Adams’s
counsel, in response to a question about Adams’s failure to so note in
her EEO complaint, said that an immediate limitation resulted from
the treatment. Oral Arg. at 17:15. Adams’s physical impairment,
however, was the breast cancer, not the mastectomy. While I agree
that the Department did not define what precisely the “record” of
impairment must comprise under prong two, we of course are free to
affirm on that ground. See In re Swine Flu Immunization Prods. Liab.
Litig., 880 F.2d 1439, 1444 (D.C. Cir. 1989). Moreover, because the
issue is one of statutory construction, I believe we are obligated to
construe it accurately. See Eldred v. Ashcroft, 255 F.3d 849, 853
(D.C. Cir. 2001) (en banc) (“ ‘When an issue or claim is properly
before the court, the court is not limited to the particular legal theories
advanced by the parties, but rather retains the independent power to
 12

In sum, because Adams had no record—documentary, or
otherwise—of a qualifying impairment when the Department
allegedly discriminated against her,10 I would affirm the district
court’s grant of summary judgment on the ground that she was
“unable to demonstrate that she is disabled within the definition
of the Rehabilitation Act.” 484 F. Supp. 2d at 17.11 I therefore

identify and apply the proper construction of governing law.’ ”
(quoting Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991));
U.S. Nat’l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439,
447 (1993) (“[The] court may consider an issue antecedent to and
ultimately dispositive of the dispute before it, even if the parties fail
to identify and brief.” (ellipsis and quotations omitted)).
10
The majority acknowledges that Adams could have described
“with greater precision” when her sexual limitation began but finds it
“reasonable to conclude that [it] began in September 2003,” maj. op.
22, as a result of her “course of treatment.” Id. The reasonableness of
the majority’s conclusion escapes me both in light of the showing
Adams did make of her “full recovery” by December 2003, supra pp.
6-7, and in light of case law rejecting recuperation from surgery as a
qualifying limitation. See, e.g., Garrett, 507 F.3d at 1315 (“ ‘A
temporary inability to work while recuperating from surgery is not . . .
a permanent or long-term impairment and does not constitute evidence
of a disability covered by the Act.’ ” (quoting Sutton v. Lader, 185
F.3d 1203, 1209 (11th Cir. 1999))).
11
Unlike the majority, I believe that Adams’s first prong
deficiency also dooms her second prong claim. Adams failed to
establish a first prong disability because she offered no evidence that
at the time she was allegedly discriminated against, she was
simultaneously both impaired and limited in a major life activity so as
to qualify under the first prong, which applies only to a person who
“has a physical or mental impairment which substantially limits one
or more of [her] major life activities.” (Emphasis added.)
Significantly, each of the first prong’s requirements is expressed in the
present tense, indicating that each must occur simultaneously, that is,
 13

respectfully dissent.12

the person must have an impairment and the impairment must limit a
major life activity at the same time. That the tense of the verbs is
significant is clear from the Supreme Court’s Sutton opinion, in which
the Court relied heavily on the statute’s use of “the present indicative
verb form” of “limits,” which the Court interpreted as “requiring that
a person be presently—not potentially or hypothetically—substantially
limited in order to demonstrate a disability.” 527 U.S. at 482. The
verb “has” in the same provision is the same tense as “limits”—the
present indicative. In other words, the plain language of the first
prong requires that a disabled person have an impairment and a
resulting limitation occurring together. In Adams’s case, the
impairment—cancer—and the claimed limitation—fear of sexual
activity—never coincided. Once Adams’s treatment was complete,
she no longer had an impairment because her cancer was gone. See
11/19/03 Letter from Dr. Mark A. O’Rourke to State Dep’t (declaring
Adams “cancer-free”). Nor was Adams disabled under the first prong
before her treatment (when she still had the impairment of cancer)
because she did not then experience the limitation she now claims.
Her sexual limitation arose only after and as a result of her cancer
treatment. See Nov. 26, 2005 Decl. of Kathy E. Adams ¶ 49 and
Adams v. Rice, No. 05-941, Am. Compl. ¶ 12 (both quoted supra pp.
2-3). How long after, we can only guess on this record. See supra pp.
2-3 & note 4. Because Adams never had an impairment that, at the
time she had it, substantially limited a major life activity under the
first prong, she could likewise not have a “record of such an
impairment” under the second prong.
12
It is the timing of this case, I think, that makes it such a bad fit
under the Rehabilitation Act and, consequently, a bad candidate for a
precedent-setting opinion on the requirements of a second prong
claim. There are record indications that, had Adams delayed pursuing
her Foreign Service career somewhat longer than three months post-
op, the Department would have considered her fit for duty. See, e.g.,
Brown Decl. ¶¶ 3, 4; FAQ (JA 104).