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


10-5-2004

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Precedential or Non-Precedential: Precedential

Docket No. 03-2513




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


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                         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

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