                                       PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT
                  __________

                      No. 19-1403
                      __________

               WILLIAM ESHLEMAN,
                           Appellant

                           v.

            PATRICK INDUSTRIES, INC.

                    ______________

     On Appeal from the United States District Court
        for the Eastern District of Pennsylvania
               (D.C. No. 5-17-cv-004427)
        District Judge: Hon. Jeffrey L. Schmehl
                    ______________

              Argued September 26, 2019

Before: SMITH, Chief Judge, McKEE, and PHIPPS Circuit
                        Judges

             (Opinion filed: May 29, 2020)
Samuel A. Dion      [Argued]
Dion & Goldberger
1845 Walnut Street
Suite 1199
Philadelphia, PA 19103
              Counsel for Appellant

Kenneth D. Kleinman
Stevens & Lee
1818 Market Street
29th Floor
Philadelphia, PA 19103

Theresa M. Zechman        [Argued]
Stevens & Lee
51 South Duke Street
P.O. Box 1594
Lancaster, PA 17602
             Counsel for Appellee

                         __________

                OPINION OF THE COURT
                      __________

McKEE, Circuit Judge

       William Eshleman appeals the District Court’s grant of
Patrick Industries’ Rule 12(b)(6) motion to dismiss the suit
Eshleman filed after Patrick Industries fired him. Eshleman
claimed that Patrick Industries regarded him as disabled in
violation of the Americans with Disabilities Act of 1990 (the




                              2
ADA) 1 because he took two months of medical leave for a
lung biopsy procedure and two vacation days for an upper
respiratory infection. The District Court held that the ADA
did not cover Eshleman’s “regarded as” claim because his
impairment lasted less than six months and was therefore
“transitory and minor.” As we explain in more detail below,
because the District Court did not conduct an independent
analysis into whether Eshleman’s impairment was minor,
apart from whether it was transitory, we will reverse and
remand for further proceedings.

                           I.    BACKGROUND
    A. Facts
       According to the First Amended Complaint, 2
Eshleman started working as a truck driver for Patrick
Industries in July 2013. 3 Between October 14, 2015 and
December 14, 2015, Eshleman took medical leave to undergo
surgery to remove a nodule from his left lung. 4 He told his
supervisor that the nodule had to be removed and tested for
cancer. 5 After two months of medical leave, Eshleman
returned to work in his full capacity, without restrictions. 6
However, about six weeks later, Eshleman suffered a severe

1
  42 U.S.C. § 12101 et seq.
2
  Bell Atl. Corp. v. Twombly, 550 U.S. 544, 572 (2007) (“[A]
judge ruling on a defendant's motion to dismiss a complaint
‘must accept as true all of the factual allegations contained in
the complaint.’”) (quoting Swierkiewicz v. Sorema N.A., 534
U.S. 506, 508, n. 1 (2002)).
3
  A26.
4
  A27.
5
  Id.
6
  Id.




                               3
respiratory infection lasting from January 27, 2016 until
January 31, 2016. 7 His supervisor approved two vacation
days during this time. 8 With his physician’s approval,
Eshleman returned to work in his full capacity on February 1,
2016. 9 At the end of his shift on his second day back, Patrick
Industries fired him. 10
        The Superintendent where Eshleman worked told
Eshleman he was terminated due to “performance issues.” 11
However, Eshleman reminded the Superintendent that his
performance review from early January 2016 had been
excellent, with all 4.5’s and one five out of a possible five in
each category evaluated. 12 Thereafter, the Superintendent
claimed that Eshleman was fired because he had not called
out sick during his recent leave for the upper respiratory
infection. 13 Later, Eshleman learned that the reason for his
termination had been changed yet again and the employer was
claiming he had been fired for “behavioral issues.” 14
        As we noted at the outset, Eshleman sued Patrick
Industries alleging that the real reason for his termination was
that he was regarded as disabled in violation of the ADA and
that the shifting reasons for his termination were merely a
pretext for illegal disability discrimination. 15 According to

7
  Id.
8
  Id. January 30 and 31 may not have not counted as workdays
as they fell on a Saturday and Sunday.
9
  Id.
10
   Id.
11
   Id.
12
   Id.
13
   Id.
14
   A28.
15
   Id.




                               4
Eshleman, Patrick Industries fired him because they
“perceived that [Eshleman] suffered from [a] long-term or
chronic medical condition which would affect his attendance
in the future, like it had in the immediate past, due to what
they perceived as continuing medical issues.” 16 He claims
that Patrick Industries, based solely on his recent record of
medical issues and the resulting nine-and-a-half weeks of
work that he missed in a fifteen week period because of his
lung biopsy and respiratory infection, concluded that he “was
unreliable, a liability, and unable to perform a wide range of
jobs.” 17

    B. The ADA
       The Americans with Disabilities Act of 1990 prohibits
covered entities from discriminating against qualified
employees based on their disabilities. 18 To state a claim
under the ADA, a plaintiff must demonstrate: “(1) [s/]he is a
disabled person within the meaning of the ADA; (2) [s/]he is
otherwise qualified to perform the essential functions of the
job, with or without reasonable accommodations by the
employer; and (3) [s/]he has suffered an otherwise adverse
employment decision as a result of discrimination.” 19 For the
purposes of the ADA, plaintiffs are disabled if they: (1) have

16
   Id.
17
   Id.
18
   42 U.S.C. § 12112; see also Williams v. Phila. Hous. Auth.
Police Dep’t, 380 F.3d 751, 755 (3d Cir. 2004), superseded
on other grounds by statute, ADA Amendments Act of 2008,
Pub. L. No. 110-325, § 6, 122 Stat. 3553, 3558.
19
   Taylor v. Phoenixville School Dist., 184 F.3d 296, 306 (3d
Cir. 1999) (citing Gaul v. Lucent Technologies, Inc., 134 F.3d
576, 580 (3d Cir. 1998)).




                              5
“a physical or mental impairment that substantially limits one
or more” of their “major life activities”; (2) have “a record of
such an impairment”; or (3) are “regarded as having such an
impairment.” 20
        Eshleman claims that Patrick Industries fired him
because the company regarded him as disabled in violation of
42 U.S.C. § 12102(1)(C) based on his medically required
absences. A plaintiff states a “regarded as” claim if s/he
“establishes that he or she has been subjected to an action
prohibited under [the ADA] because of an actual or perceived
physical or mental impairment whether or not the impairment
limits or is perceived to limit a major life activity.” 21 An
employer regards a person as disabled when it
“misinterpret[s] information about an employee’s limitations
to conclude that the employee is incapable of performing” his
or her job requirements. 22 The ADA includes “regarded as”
claims because being perceived as disabled “may prove just
as disabling” to a person as another type of physical or mental
impairment. 23
        However, the ADA limits “regarded as” claims by
excluding “impairments that are transitory and minor.” 24
Accordingly, if the perceived disability is “transitory and
minor,” a plaintiff cannot state a “regarded as” discrimination




20
   42 U.S.C. § 12102(1).
21
   42 U.S.C. § 12102(3)(A).
22
   Ross v. Kraft Foods N. Am., Inc., 347 F. Supp 2d. 200, 204
(E.D. Pa. 2004) (citing Rinehimer v. Cemocolift, Inc., 292 F.3d
375, 381 (3d Cir. 2002)).
23
   Williams, 380 F.3d at 774.
24
   42 U.S.C. § 12102(3)(B).




                               6
claim. 25 The ADA defines “transitory” as “an impairment
with an actual or expected duration of 6 months or less,” but
does not define “minor.” 26 The District Court concluded that
the face of Eshleman’s complaint fell within this exception
and therefore dismissed his suit under Federal Rule of Civil
Procedure 12(b)(6).
        The District Court relied on “the temporal proximity
between Mr. Eshleman’s medical absences and his
termination…to support an inference that Patrick Industries
regarded [him] as disabled” and concluded that Eshleman
sufficiently pled a “regarded as” claim under the ADA. 27
Nevertheless, the court dismissed the complaint with leave to
amend for failure to state a claim because the court held that
the “[c]omplaint lacks any proof that his surgery and severe




25
   A22. See also Budhun v. Reading Hosp. and Med. Ctr., 765
F.3d 245, 259 (3d Cir. 2014) (“While ordinarily a party may
not raise affirmative defenses at the motion to dismiss stage, it
may do so if the defense is apparent on the face of the
complaint”) (internal citations omitted). Following the
EEOC’s lead, our caselaw has sometimes described the
limitation on “transitory and minor” impairments as an
“affirmative defense.” Id. (citing 29 C.F.R. § 1630.15(f)). We
think this is imperfect shorthand, since the statutory text
demands a non-transitory or non-minor perceived impairment
for regarded-as claims. Put differently, a regarded-as plaintiff
alleging a transitory and minor impairment has failed to state a
legally sufficient claim, even if the employer does not include
a transitory and minor defense in its Answer.
26
   42 U.S.C. § 12102(3)(B).
27
   A25.




                               7
upper respiratory infection were anything but transitory and
minor.” 28
       The Amended Complaint included additional
information about the nature and purpose of Eshleman’s
medical leave but did not negate the transitory and minor
exception. Accordingly, the District Court granted Patrick
Industries’ motion to dismiss the First Amended Complaint. 29
In doing so, it reiterated that Eshleman had pled a plausible
“regarded as” claim. However, relying upon our decision in
Budhun v. Reading Hospital and Medical Center, 30 the
District Court held that Eshleman’s alleged impairment was
objectively transitory and minor because “the actual or
expected duration…lasted less than six months.” 31 This
appeal followed. 32

                     II.    DISCUSSION
        Eshleman argues that the District Court committed two
errors in dismissing his complaint. He alleges that the
District Court failed to consider whether his actual
impairment—lung surgery to remove a nodule and test it for
cancer—was non-minor. 33 He also claims the District Court

28
   Id.
29
   A6.
30
   765 F.3d 245 (3d Cir. 2014).
31
   A14.
32
   The District Court had jurisdiction over Eshleman’s ADA
claim pursuant to 28 U.S.C. § 1331. Pursuant to 28 U.S.C. §
1291, we exercise plenary review of the District Court’s grant
of a motion dismiss. See Finkelman v. Nat. Football League,
877 F.3d 504, 510 (3d Cir. 2017); Pearson v. Sec’y Dep’t of
Corr., 775 F.3d 598, 601 (3d Cir. 2015).
33
   Pet. Br. at 6.




                              8
failed to address whether the impairment that Patrick
Industries perceived—described in Eshleman’s complaint as
“continuing medical issues”—was transitory and minor. 34
We agree that the issue of whether an impairment is “minor”
is a separate and distinct inquiry from whether it is
“transitory.” We will therefore reverse and remand to the
District Court to consider whether Eshleman’s impairment is
minor based upon the allegations in his complaint.

    A. Pleading Standard
        At the motion to dismiss stage, before the plaintiff has
had the benefit of discovery, all that is required is “a short and
plain statement of the claim showing the pleader is entitled to
relief.” 35 However, the complaint “must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that
is plausible on its face.’” 36 A claim is plausible when the facts
alleged “allow[] the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” 37
        As noted earlier, the District Court held that Eshleman
pled sufficient facts to state a “regarded as” claim under the
ADA. That determination is not challenged on appeal;
therefore, we address only whether Eshleman’s complaint
sufficiently alleges a regarded-as impairment that is not
transitory and minor.




34
   Id. at 7.
35
   Fed. R. Civ. P. 8(a)(2).
36
   Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 554, 570 (2007)).
37
   Id.; see also Burtch v. Milberg Factors, 662 F.3d 212, 220-
21 (3d Cir. 2011).




                                9
    B. Transitory and Minor
        While Eshleman concedes that his actual
impairments—surgery to remove a nodule from his lung and
a severe upper respiratory infection—were transitory because
they lasted less than six months, he argues that the District
Court was nonetheless required to separately evaluate
whether his impairment was “minor.” We agree.
        In carving out “transitory and minor” impairments
from “regarded as” claims, the ADA specifically defines
“transitory” as “an impairment with an actual or expected
duration of 6 months or less.” 38 The ADA does not, however,
apply this definition to minor. While the statute is silent on
the meaning of “minor,” the ADA regulations clearly state
that an employer must establish that the perceived impairment
is objectively both transitory and minor. 39 29 C.F.R. §
1630.15(f) states: “To establish this defense, a covered entity
must demonstrate that the impairment is both ‘transitory’ and
‘minor.’ Whether the impairment at issue is or would be
‘transitory and minor’ is to be determined objectively.” 40
        The regulations, like the statute, define “transitory” as
“lasting or expected to last six months or less” but similarly
do not extend this definition to “minor.” 41 In addition, the
regulations refer to the time limitation as “[t]he six-month
‘transitory’ part of the ‘transitory and minor’ exception,”
making absolutely clear the distinction between “transitory”
and “minor.” 42 It is therefore clear under the ADA regulations

38
   42 U.S.C. § 12102(3)(B).
39
   29 C.F.R. § 1630.15(f).
40
   Id. (emphasis added).
41
   Id. (“For purposes of this section, ‘transitory’ is defined as
lasting or expected to last six months or less.”).
42
   29 C.F.R. § 1630.2 (j)(ix).




                               10
that “transitory” is just one part of the two prong “transitory
and minor” exception.
        The Equal Employment Opportunity Commission’s
interpretive guidance provides further justification for treating
transitory and minor as separate and distinct components of
the “transitory and minor” exception. 43 The EEOC once again
states that the “transitory and minor” exception requires a
showing that the impairment is both transitory and minor, and
clarifies that the six-month time limit applies only to the
“transitory” prong of the exception. 44 Furthermore, the EEOC
provides the following illustration distinguishing between
transitory and minor impairments:

       For example, an individual who is denied a promotion
       because he has a minor back injury would be
       “regarded as” an individual with a disability if the back
       impairment lasted or was expected to last more than
       six months. Although minor, the impairment is not
       transitory. 45


43
    Interpretive Guidance on Title I of the Americans with
Disabilities Act, 29 C.F.R. Pt. 1630, App. (2016).
44
    Id. at App. § 1630.15(f) (“[The ADA] explains that an
individual cannot be ‘regarded as having such an impairment’
if the impairment is both transitory (defined by the ADAAA as
lasting or expected to last less than six months) and minor.”).
In another section, the EEOC explains that “the regulations
provide an exception to coverage under the ‘regarded as’ prong
where the impairment on which a prohibited action is based is
both transitory (having an actual or expected duration of six
months or less) and minor.” Id. at App. § 1630.2(I).
45
   Id.




                               11
According to the EEOC, the minor back injury lasting longer
than six months is not “transitory and minor” because it meets
only the “minor” prong of the exception but is not transitory.
The converse must also be true; an impairment that is
transitory because it lasts less than six months but is
objectively non-minor must also fall outside the “transitory
and minor” exception.
        Finally, excluding only impairments that are both
transitory and minor is consistent with Congress’ intent to
expand ADA coverage through the ADA Amendments Act of
2008. 46 As the House Judiciary Committee Report on the
ADAAA explains, when including “regarded as” claims
under the ADA “Congress did not expect or intend that this
would be a difficult standard to meet.” 47 The Report further
explains that the “transitory and minor” exception was
intended to weed out only “claims at the lowest end of the
spectrum of severity,” such as “common ailments like the
cold or flu,” and that the exception “should be construed
narrowly.” 48 Treating transitory and minor as separate and
distinct elements is therefore consistent with the intent to
afford broad coverage under the “regarded as” provision.
        The District Court relied heavily on our decision in
Budhun to justify dismissing Eshleman’s claim. However, the
District Court’s analysis improperly conflated “transitory”
and “minor” by mechanically applying the six-month
limitation for “transitory” claims to the definition of

46
   H.R. Rep. No. 110–730 pt. 2, at 5 (2008) (“The purpose of
[the ADAA] is to restore protection for the broad range of
individuals with disabilities as originally envisioned by
Congress”).
47
   Id. at 17.
48
   Id. at 18.




                             12
“minor.” 49 In Budhun, we held that an employee’s broken
pinky finger, which resulted in her losing the use of three
fingers for two months, was objectively transitory and
minor. 50 Budhun broke the bone connecting her wrist to her
pinky finger and that finger was taped to her adjoining ring
and middle fingers in order to stabilize it. 51 Despite her
broken finger, Budhun insisted that she could nevertheless
still perform her primary work function of typing, just “‘not
as fast as [she] used to . . .’” 52 Her treating physician initially
estimated that Budhun’s “period of incapacity [would be]
‘08/02/10 – 08/16/10’” or fourteen days. 53 Thus, on its face,
given Budhun’s own account of her injury and request for
leave and her physician’s initial estimate of the amount of
time required for full recovery and return to work with no
restrictions, her injury could fairly be deemed to be both
transitory and minor.
        Budhun alleged, and her employer perceived, “a
broken bone in her hand and nothing more,” and Budhun
conceded the lost use of her fingers was only temporary. 54
Thus, the temporary nature of a broken pinky finger served as
a proxy for the lack of severity. Although our discussion in
Budhun could be read as suggesting any impairment with an

49
   A14 (“[T]he actual or expected duration of Mr. Eshleman’s
impairment lasted less than six months making it transitory and
minor.”); Resp. Br. at 9 (“Transitory and minor impairments
are defined as those with an expected duration of six months or
less.”).
50
   Budhun, 765 F.3d at 259-60.
51
   Id. at 248.
52
   Id.
54
   Id. at 249.
54
   Id. at 259-60.




                                13
“actual or expected duration of six months or less” is
necessarily “transitory and minor,” the discussion must be
viewed in the context of Budhun’s objectively non-serious
pinky injury, as well as the allegedly short recovery time.
Accordingly, Budhun should not be interpreted as imposing a
rigid six-month-or-more requirement on establishing
“regarded as” claims.
        Consequently, the District Court erred by not
considering whether Eshelman’s impairment was objectively
minor separately from whether it was transitory. The term
“minor” is not defined in statute, and instead of formulating a
broad definition of that term, courts have approached the
issue on a case-by-case basis. Here, the District Court should
have considered such factors as the symptoms and severity of
the impairment, the type of treatment required, the risk
involved, and whether any kind of surgical intervention is
anticipated or necessary—as well as the nature and scope of
any post-operative care. A broken pinky finger, treated with a
splint, is hardly comparable to surgically removing a lung
nodule. The latter involves surgery on a vital organ (which is,
by definition, an invasive procedure) and all the risks and
post-operative care this inevitably entails. And that is true
even if the impairment has an anticipated recovery time of
two months and is therefore “transitory.” Because even
minimally invasive lung surgery is still thoracic surgery, more
than likely requiring inpatient care, it is plausible that
Eshleman’s lung surgery was non-minor.
        Moreover, Eshleman’s case is further distinguishable
from Budhun, because there it was “abundantly clear that [the
employer] considered Budhun to have a broken bone in her
hand and nothing more.” 55 In contrast, Eshleman alleges that

55
     Id. at 259.




                              14
Patrick Industries perceived his recent medical issues to
signify an on-going health condition. 56 We noted in Budhun
that “[n]owhere in the complaint does Budhun allege that [her
employer] thought her injury was anything other than a
broken fifth metacarpal.” 57 Eshleman’s complaint, on the
other hand, alleges that it was the lung surgery coupled with a
severe respiratory infection – close-in-time ailments affecting
the same system of the body – that led to his employer to
perceive him as disabled. That situation is unlike the
employer in Budhun, who thought the employee would be
fully recovered in less than two months. 58 We therefore
disagree with the District Court’s contention that “nowhere
does Mr. Eshleman plead Patrick Industries understood his
impairment to be anything other than a one-time surgery . .
.” 59 Eshleman’s complaint contains plausible allegations that
Patrick Industries regarded his series of recent medically-
related absences as signs of a continuing medical condition
that essentially rendered him damaged goods and therefore
unemployable. The District Court failed to evaluate whether




56
   A28.
57
   Budhun, 765 F.3d at 260.
58
   In disagreeing with this statement, we do not suggest that
“a one-time surgery” is inevitably minor. The severity of the
underlying disability cannot depend upon the frequency of the
required surgical intervention. We do not need expert
testimony to appreciate that a very serious medical condition
may nevertheless require only a single surgical procedure.
Organ transplants are, perhaps, the best example of this.
59
   A13.




                              15
Eshleman’s perceived chronic medical condition, distinct
from his lung surgery, was objectively transitory and minor. 60
        Patrick Industries points to several instances where
district courts have found that impairments allegedly similar
to Eshleman’s lung surgery were “transitory and minor,” none
of which we find persuasive. 61 Not only are these unreported
and mainly out-of-Circuit cases not binding on this Court,
they also largely fail to make distinct findings about whether
the impairments are both “transitory” and “minor.” 62 In

60
   See 29 C.F.R. Pt. 1630, App. at § 1630.2(I) (2016) (“[A]n
employer that terminated an employee with an objectively
‘transitory and minor’ hand wound, mistakenly believing it to
be symptomatic of HIV infection, will nevertheless have
‘regarded’ the employee as an individual with a disability,
since the covered entity took a prohibited employment action
based on a perceived impairment (HIV infection) that is not
‘transitory and minor.’); see also H.R. Rep. No. 110–730 Pt. 2,
at 17 (2008) (“This third, ‘regarded as,’ prong was meant to
express Congress’s understanding that unfounded concerns,
mistaken beliefs, fear, or prejudice about disabilities are just as
disabling as actual impairments and its corresponding desire to
prohibit discrimination founded on such concerns or fears.”).
61
   Resp. Br. at 19-20.
62
   Bachir v. Suburban Collection Imported Cars, LLC, No.
17-13323, 2018 WL 4637324, at *7 (E.D. Mich. Sept. 27,
2018) (“To qualify as a disability under the regarded-as-
disabled prong of the ADA, a condition must last more than
six months . . . Plaintiff has not alleged, much less produced
evidence sufficient to show, that the mass on his throat
afflicted him for more than six months.”); Santiago v.
Urology Grp. of Princeton, P.A., No. 3:17-CV-4927, 2018
WL 3472629, at *3 (D. N.J. July 19, 2018) (finding that




                                16
contrast, the Court of Appeals for the Seventh Circuit in Silk
v. Board of Trustees, Moraine Valley Community College
made clear that the limitation on impairments lasting or
expected to last less than six months applies to “transitory,”
whereas the statute leaves “minor” undefined. 63 There, the
Seventh Circuit found that “a heart condition severe enough
to require triple bypass surgery” was not on its face both
transitory and minor. 64 Consistent with the language and


fifteen weeks of medical leave for spinal surgery “falls short
of the six months necessary to show an injury is not
objectively ‘transitory and minor’ . . .”); Weisel v. Stericycle
Commc'ns Sols., No. 3:13-CV-3003, 2015 WL 390954, at *10
(M.D. Pa. Jan. 28, 2015) (“Plaintiff's release to return to work
two weeks after surgery is evidence that her condition was
minor and of limited duration.”); Butler v. Advance/Newhouse
P'ship, No. 6:11-CV-1958-ORL-28GJK, 2013 WL 1233002,
at *8 (M.D. Fla. Mar. 26, 2013) (finding that back surgery
and recovery time is “transitory and minor” because “[t]here
is no evidence that anyone . . . expected the duration of any
impairment to be more than six months . . . ”); Neumann v.
Plastipak Packaging, Inc., No. 1:11-CV-522, 2011 WL
5360705, at *11 (N.D. Ohio Oct. 31, 2011) (finding that
surgery for back and leg pain is “transitory and minor”
because plaintiff “has not offered any evidence to indicate
that the actual or expected duration of his surgery
recuperation was greater than sixth months . . .”).
63
   795 F.3d 698, 706 (7th Cir. 2015).
64
   Id. at 707-08; see also Mesa v. City of San Antonio, No.
SA-17-CV-654-XR, 2018 WL 3946549, at *12, *18 (W.D.
Tex. Aug. 16, 2018) (explaining that “[t]he regulations and
EEOC guidance indicate that ‘transitory’ and ‘minor’ are
separate and distinct requirements” and holding that “[e]ven




                              17
intent of the ADA and its implementing regulations, the Court
treated “transitory” and “minor” as separate and distinct
inquiries required to meet the “transitory and minor”
exception to “regarded as” claims. 65


assuming that [plaintiff]'s perceived shoulder injury was
transitory, [defendant] has not conclusively shown that it was
minor” where the injury required transport to the emergency
room by ambulance, treatment with prescription pain
medications, and injury-related work restrictions on climbing,
reaching, and lifting); Bush v. Donahoe, 964 F. Supp. 2d 401,
422-23 (W.D. Pa. 2013) (evaluating the treatment and
symptoms, ability to perform work duties, and restrictions
and limitations on activity to determine a sprained ankle/foot
is objectively minor because, although a sprained ankle/foot
requiring a walking cast is transitory because it heals in less
than six months, “[t]hat does not end the inquiry. . . . as
Defendant must also show that [plaintiff’s] impairment was
minor.”); Davis v. Vermont, Dep’t of Corr., 868 F. Supp. 2d
313, 327 (D. Vt. 2012) (“In addition, Defendant is unable to
show from the face of the Second Amended Complaint that
the impairment was minor. Accordingly, Defendant at this
stage of the case cannot sustain the defense that the perceived
impairment is both transitory and minor.”); Mayorga v.
Alorica, Inc., No. 12-21578-CIV, 2012 WL 3043021, at *9
(S.D. Fla. July 25, 2012) (declining to dismiss plaintiff’s
claim based on pregnancy complications as “transitory and
minor” because whether the impairment “was ‘minor’
presents a . . . question of fact that is not properly resolved on
a motion to dismiss. It cannot be determined from the face of
the Complaint, nor the record as it currently stands, whether
[plaintiff]’s impairment was minor.”).
65
   Silk, 795 F.3d at 706-07.




                               18
       Here, especially at the pleading stage, Eshleman’s
allegations, which are premised not only on the lung surgery
but also on a close-in-time subsequent ailment affecting the
same system of the body, plausibly plead a non-minor
perceived impairment.

                   III. CONCLUSION
       For the foregoing reasons, we will reverse District
Court’s judgment dismissing Eshleman’s regarded as claim
under the ADA and remand for further proceedings consistent
with this opinion.




                             19
