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Precedential or Non-Precedential: Precedential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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PRECEDENTIAL (Filed: October 5, 2004)
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
9