In the
United States Court of Appeals
For the Seventh Circuit

No. 00-1364

THOMAS M. MATTICE, M.D.,

Plaintiff-Appellant,

v.

MEMORIAL HOSPITAL OF
SOUTH BEND, INC.

Defendant-Appellee.

Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 98 C 303--Robert L. Miller, Jr., Judge.

ARGUED February 22, 2001--DECIDED MAY 7, 2001


  Before BAUER, COFFEY, and MANION, Circuit
Judges.

  MANION, Circuit Judge. Dr. Thomas
Mattice worked for Memorial Hospital in
South Bend, Indiana as an
anesthesiologist until he went on leave
for depression and panic disorder.
Mattice claims that after he returned to
work, Memorial discriminated against him
based on his disability, and he sued
under the ADA. The district court
dismissed his complaint for failure to
state a claim. Mattice appeals. We
reverse and remand for further
proceedings.

Background/1

  Dr. Mattice began working as an
anesthesiologist for Memorial Hospital in
July 1991. In January 1995, he was
hospitalized for about a week due to
panic disorder and major depression, but
he returned to work after being placed on
various medications. However, Dr. Mattice
had problems with side effects from the
medications and took a medical leave of
absence from May to August 1995. After
that leave of absence, he was released to
return to work without restrictions, but
Memorial required a second opinion. After
Dr. Mattice provided one, Memorial let
him return to work, but subjected him to
more rigorous and critical observation.
  In September 1996, a patient at Memorial
died in the operating room while Dr.
Mattice was performing the anesthesia
care for the patient. Memorial
immediately suspended him, but a peer-
review panel recommended that he be
allowed to return to work. Memorial
refused to lift the suspension, so Dr.
Mattice complained to the Memorial Board
of Trustees. The Trustees revoked his
suspension, but conditioned his return to
work on monitoring and testing relating
to his mental health history. Memorial
later terminated Dr. Mattice, although it
is unclear from the amended complaint
exactly what happened. In any event, Dr.
Mattice filed a charge of disability
discrimination with the EEOC against
Memorial, and after receiving a Right to
Sue letter, he sued Memorial Hospital in
federal district court under the ADA; he
also alleged several pendent state
claims./2

  Memorial moved to dismiss Dr. Mattice’s
ADA claim, arguing that he failed to
state a claim under the ADA. The
district court agreed based on the
Supreme Court’s recently rendered
decision in Sutton v. United Airlines,
Inc., 119 S.Ct. 2139 (1999). However,
because this decision was handed down
after Dr. Mattice had filed his
complaint, the district court granted him
leave to amend the complaint. Dr. Mattice
filed an amended complaint, but the
district court concluded that his new
allegations were still insufficient under
Sutton, and accordingly it dismissed his
ADA claim. The district court then
refused to exercise jurisdiction over Dr.
Mattice’s pendent state law claims. Dr.
Mattice appeals.

Analysis

  "A complaint should be dismissed only
where it appears beyond a doubt that
plaintiff can prove no set of facts that
would entitle [him] to relief." Homeyer
v. Stanley Tulchin Assoc., Inc., 91 F.3d
959, 961 (7th Cir. 1996). Because Dr.
Mattice seeks to state a claim under the
ADA, in order to determine whether the
district court erred in dismissing his
complaint, we begin with the statute. The
ADA provides that an employer shall not
"discriminate against a qualified
individual with a disability." 42 U.S.C.
sec. 12112(a). A "qualified individual
with a disability" is defined as "an
individual with a disability who, with or
without reasonable accommodation, can
perform the essential functions of the
employment position that such individual
holds or desires." 42 U.S.C. sec.
12111(8). The ADA further defines
"disabled" as someone who:

(a) Has a physical or mental impairment
that substantially limits one or more of
the major life activities of such
individual;

(b)   has a record of such impairment; or

(c) is regarded as having such an
impairment.

42 U.S.C. sec. 12102(2).

  While Dr. Mattice does not claim that he
currently "has a physical or mental
impairment that substantially limits one
or more . . . major life activities," as
noted above, an individual is disabled
under the ADA if they have "a record of
such impairment" or are "regarded as
having such an impairment." In this case,
in his complaint, Dr. Mattice alleged a
disability under these latter two
definitions. Specifically, he alleged
that Memorial Hospital regarded him as
having a substantial impairment "in the
major life activit[y] of cognitive
thinking . . . ." Additionally, he
alleged that he "has a history of a
significant impairment of major life
activities of sleeping, eating, thinking,
and caring for himself in addition to
other life activities significantly
impaired by the existence of and care and
treatment for panic disorder, severe
depression and suicidal ideation." These
allegations are sufficient to state a
claim under the ADA. See, e.g., Homeyer,
91 F.3d at 961 (holding that under
liberal federal notice pleading
standards, plaintiff sufficiently pleaded
ADA claim by alleging that she suffered
from chronic severe allergic rhinitis and
sinusitis which substantially impaired
her ability to breathe); Duda, 133 F.3d
at 1059 (holding that plaintiff
sufficiently pleaded a claim under the
ADA by alleging that he suffered from a
psychiatric illness and was diagnosed as
a manic depressive and that the
defendant-employer was aware of that
diagnosis and regarded him as disabled
and substantially limited in major life
activities).

  Memorial claims otherwise, relying on
Sutton. In Sutton, two sisters sued
United Airlines under the ADA after
United Airlines refused to hire them as
global airline pilots based on their poor
(uncorrected) eyesight. The plaintiffs
alleged in their complaint that United
mistakenly believed that their physical
impairments substantially limited them in
the major life activity of working. The
Supreme Court held that the district
court had properly dismissed the sisters’
complaint, concluding that the plaintiffs
could not state a claim under the ADA
because "[w]hen the major life activity
under consideration is that of working,
the statutory phrase ’substantially
limits’ requires, at a minimum, that
plaintiffs allege they are unable to work
in a broad class of jobs." Id. at 2151.
Because "global airline pilot" is not a
"broad class of job," but is rather a
very specialized position for a limited
group of pilots, the Supreme Court held
that the sisters were not "disabled"
within the meaning of the ADA. For
instance, they could still be qualified
as regional pilots or pilot instructors.

  Memorial contends that Dr. Mattice, like
the Sutton sisters, is merely unable to
work as an anesthesiologist, and because
that is not a "broad class of jobs," he
is not disabled under the ADA. Had Dr.
Mattice alleged that Memorial regarded
him as limited in the major life activity
of working, we would agree with this
analysis, but he did not; rather, he
alleged that Memorial regarded him as
limited in the major life activity of
"cognitive thinking." This distinguishes
his case from Sutton, and significantly
so, because in reaching its decision in
Sutton the Supreme Court explicitly
noted: "Petitioners do not make the
obvious argument that they are regarded
due to their impairments as substantially
limited in the major life activity of
seeing. They contend only that respondent
mistakenly believes their physical
impairments substantially limit them in
the major life activity of working."
Sutton, 119 S.Ct. at 2150. This language
demonstrates that the Supreme Court’s
holding that to be disabled the plaintiff
must allege the inability to work in a
"broad class of jobs" was limited to the
specific allegation at issue in that
case--the major life activity of working
as a global airline pilot./3 In this
case, because Dr. Mattice alleged that
Memorial regarded him as limited in a
different major life activity--that of
cognitive thinking--Sutton is
inapplicable. See, e.g., Homeyer, 91 F.3d
at 962 (holding that district court erred
in dismissing ADA complaint where
plaintiff alleged both a substantial
limitation in the major life activity of
working and the major life activity of
breathing).

  Memorial argues in response that while
Dr. Mattice alleged that Memorial
believed him to be significantly impaired
in the major life activity of cognitive
thought, "that was really a claim that he
was mistakenly believed to be
substantially limited [in] the major life
activity of working." We rejected a
similar attempt to recast the plaintiff’s
complaint in Homeyer. In that case, the
plaintiff had alleged that she was
substantially impaired in her ability to
breathe and in her ability to work. This
court held that the district court had
improperly ignored the "ability to
breathe" allegation, focusing solely on
the life activity of working. Id. at 962.
We further rejected the defendant’s
attempt to translate the "ability to
breathe" allegation into a claim of a
limitation on the ability to work, noting
that "[i]t cannot be, however, that every
plaintiff that merely links an existing
disability to the workplace is limited to
an ’ability to work’ analysis, for then
every ’disability’ claim asserted in an
action against an employer would collapse
into an ’ability to work’ analysis." Id.
at 962 n.1. Accordingly, we reject
Memorial’s attempt to reformulate Dr.
Mattice’s "cognitive thinking" allegation
into a claim of a substantial limitation
in the ability to work.

  Moreover, in this case Dr. Mattice also
alleged that he had a "record of
impairment" in the major life activities
of sleeping, eating, thinking and caring
for himself. Because the ADA defines an
individual as "disabled" if they
currently have a substantial limitation
in a "major life activity," or are
regarded as having such a limitation, or
have a record of such a limitation, Dr.
Mattice’s allegation of a record of such
an impairment also states a claim under
the ADA. See, e.g., Duda, 133 F.3d at
1058 n.6 ("’Major life activities’
include such basic functions as ’caring
for oneself, performing manual tasks,
walking, seeing, hearing, speaking,
breathing, learning, and working.’")
(quoting 29 C.F.R. sec. 1630.2(i)).
Therefore, the district court should not
have dismissed Dr. Mattice’s complaint
for failure to state a claim. Because the
district court erroneously dismissed Dr.
Mattice’s federal claim, we also reverse
the district court’s decision not to
exercise jurisdiction over the state
supplemental claims.

  Before closing, we note that this case
is before us on 12(b)(6) dismissal, and
it is on that basis alone that we rule.
It may well be that at the summary
judgment stage, Memorial is able to
present evidence demonstrating that Dr.
Mattice was not "a qualified individual
with a disability" as defined by the ADA,
or that his alleged impairments were not
"substantial limitations," or that it did
not discriminate against Dr. Mattice, or
that the added scrutiny of Dr. Mattice
was reasonably necessary given his role
as an anesthesiologist. See, e.g., Duda,
133 F.3d at 1060. But at this stage,
dismissal was inappropriate.

Conclusion

  "A complaint should not be dismissed for
failure to state a claim unless it
appears beyond doubt that the plaintiff
can prove no set of facts in support of
his claim which would entitle him to
relief." Conley v. Gibson, 355 U.S. 41,
45-46 (1957). In this case, Dr. Mattice
alleged that he was disabled because
Memorial regarded him as substantially
limited in the major life activity of
cognitive thinking and because he had a
record of impairment in the major life
activities of sleeping, eating, thinking
and caring for himself. Moreover, because
Dr. Mattice did not allege an impairment
in the major life activity of working,
Sutton is inapplicable and Dr. Mattice
was not required to allege that he was
"unable to work in a broad class of
jobs." Therefore, Dr. Mattice’s
allegations are sufficient to state a
claim under the ADA, and the district
court erred in dismissing his complaint.
Therefore we reverse and remand for
further proceedings.

FOOTNOTES

/1 The following facts are gleaned from the
complaint and for purposes of 12(b)(6), we must
assume them to be true. Duda v. Board of Educ.,
133 F.3d 1054, 1055 (7th Cir. 1998).

/2 Dr. Mattice also sued Michiana Anesthesia Care,
Neil Lesh, M.D., and Dean Strycker, M.D., but he
later stipulated to dismiss those defendants with
prejudice. Because those defendants are no longer
involved, we limit our discussion of the facts to
the complaint against Memorial Hospital.

/3 In this case, the EEOC filed an amicus brief
arguing that the district court erroneously
created a heightened pleading standard for ADA
claims by requiring that a plaintiff allege the
inability to work in a broad class of jobs. While
we agree with the EEOC that Sutton did not create
a heightened pleading standard, we note that
under Sutton, a plaintiff can plead himself out
of court by alleging as his disability the in-
ability to work in a limited class of jobs.
