Employment Cases Dealing with Discrimination On the Basis of Diabetes∗

Last update: June 19, 2008 Federal Court Cases 1. Bentivegna v. Department of Labor, 694 F.2d 619 (9th Cir. 1982)

(refusal to hire applicant for building repair position) required all job applicants to show “control” of diabetes by having blood sugar readings consistently below a threshold over a given period of time. What little evidence plaintiff presented of his blood sugar levels showed them to be above the city’s cut-off. Plaintiff’s status as a “handicapped person” under the Rehabilitation Act was “not disputed.” Court held that city could not apply its blanket blood sugar requirements to all jobs because it had made now showing that it was supported by “business necessity” for all jobs.

2. Harper v. General Dynamics Corp., 117 L.R.R.M. (BNA) 3197 (S.D. Cal. 1984)

(discharge of plumber) Defendant discharged plaintiff for allegedly sleeping on the job. Plaintiff asserted that defendant was aware that he had diabetes and that at the time of the incident, plaintiff momentarily blacked out because of an “insulin imbalance.” Defendant argued that the plaintiff’s state court action was preempted by Labor Management Relations Act. Court held that plaintiff’s suit was not preempted by LMRA.

3. Pannell v. Wanke Panel Co., 618 F. Supp. 41 (D. Or. 1985)

(discharge of warehouse person who operated machinery) Employer, who discharged warehouse person after making several efforts to accommodate his diabetes, did so in response to uncontrollable behavior that resulted from his diabetes. Court held employee discharged not for disability, but for “uncontrollable behavior” resulting from his disability that could not be reasonably accommodated.

4. Brown v. County of Genesee, 37 F.E.P. Cases (BNA) 1595 (W.D. Mich. 1985) ∗ Cases in bold involve, in whole or in part, the issue of whether the plaintiff qualifies for coverage under the Americans with Disabilities Act or the Rehabilitation Act of 1973 in light of the Sutton trilogy: Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999); Murphy v. United Parcel Service, 572 U.S. 516 (1999); Albertson’s Inc. v. Kirkingberg, 527 U.S. 555 (1999).

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(hiring jail security guard candidate) Jail matron applicant who had diabetes was “handicapped” within meaning of Rehabilitation Act: “Clearly, the fact that plaintiff’s diabetic condition caused her to fail the [pre-employment physical] examination indicates that the impairment was treated as one that substantially limited a major life activity, working.”

5. Gaston v. State of Illinois Tollway Authority, No. 85 C 1272, 1985 WL 1733

(N.D. Ill. June 7, 1985)

(discharge of lightweight equipment operator) Plaintiff alleged discrimination under Title VII and various constitutional provisions based on his race and his alleged disability of diabetes. Employer asserted that the complaint did not contain a short and concise statement of the plaintiff’s claims. Court held that the error of the EEOC in failing to refer plaintiff’s charge to the Attorney General did not cause prejudice to employer. Motion to dismiss was denied and plaintiff was granted leave to amend.

6. Davis v. Meese, 692 F. Supp. 505 (E.D. Pa. 1988), aff’d mem., 865 F.2d 592 (3d

Cir. 1989)

(failure to hire special agent candidate with type 1 diabetes) Court found that a person with insulin-dependent diabetes “is clearly a ‘handicapped person’ within the meaning of the Rehabilitation Act.” Court sustained FBI’s policy against employing persons with insulin-dependent diabetes as special agents or investigative specialists on “otherwise qualified” grounds without individualized assessment.

7. Serrapica v. City of New York, 708 F. Supp. 64 (S.D.N.Y. 1989)

(hiring city sanitation worker candidate with type 1 diabetes for job requiring truck driving) “Plaintiff’s diabetes constitutes a handicap under the [Rehabilitation Act].” Court concluded that plaintiff was not “otherwise qualified” for appointment as city sanitation worker after individualized assessment.

8. Brown v. Holiday Stationstores, Inc., 723 F. Supp. 396 (D. Minn. 1989)

(commercial truck driver with type 1 diabetes) Plaintiff was suspended from over-the-road truck driving duties when it was determined that he had diabetes requiring insulin for control. Neither Labor Management Relations Act nor Motor Carrier Safety Act preempted handicap discrimination claim filed under Minnesota Human Rights Act.

9. Dowden v. Tisch, 729 F. Supp. 1137 (E.D. Tex. 1989)

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(discharged Postal Service mail carrier) Employee who never notified Postal Service of any ailment other than diabetes and arthritis prior to his termination, who never sought accommodation of his alleged disabilities, and who refused to obey supervisor’s orders was not “otherwise qualified” within the meaning of the Rehabilitation Act.

10. Newsome v. Brady, No. 91 C 2166, 1991 WL 202612 (N.D. Ill. 1991)

(promotion of Customs Service administration officer) Plaintiff alleged that employer discriminated against her when it did not select her for a training class and promotion, on basis of race, age and handicap (diabetes). Defendant conceded that diabetes qualified as a physical impairment, but did not substantially limit the employee. Court held that plaintiff failed to establish that she had a disability.

11. Wood v. Omaha School District, 784 F. Supp. 1441, (D. Neb. 1992)

(discharged school van drivers with type 2 diabetes) School bus drivers with insulin-using diabetes were “handicapped” under Rehabilitation Act. “Handicap” disposition not disputed on appeal; remanding “reasonable accommodation” disposition. Aff’d, 25 F.3d 667 (8th Cir. 1994). Reasonable accommodations not possible for insulin-using person driving school buses or vans; therefore, employee not otherwise qualified.

12. Barth v. Gelb, 761 F. Supp. 830 (D.D.C. 1991) aff’d, 2 F.3d 1180 (D.C. Cir.

1993)

(hiring type 1 candidate for Foreign Service Specialist) Person with insulin dependent diabetes who applied for job with Voice of America as Foreign Service Specialist was “handicapped individual” under Rehabilitation Act. Agency’s failure to waive medical clearance requirement did not violate Act’s “reasonable accommodation” mandate.

13. Jones v. Grindstaff, Inc., 1993 WL 498957 (E.D. Tenn. 1993)

(Discharge of finance manager for auto dealership) Employee brought suit charging defendant with violating the American with Disabilities Act (ADA) by failing to make an attempt to accommodate his diabetes and by terminating him while he was suffering from an illness resulting from his disability. Court granted summary judgment for defendant finding there was no evidence in the record that diabetes was a factor in the defendant’s decision to discharge.

14. Chandler v. City of Dallas, 2 F.3d 1385, cert denied, 511 U.S. 1911 (1994) (5th

Cir. 1993)

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(discharge of primary driver with type 1 diabetes) Court holds: (1) insulin-dependent diabetes not a disability per se, and employee failed to prove disability; and (2) person with insulin-dependent diabetes is not otherwise qualified. Relies on DOT blanket exclusion.

15. Bombrys v. City of Toledo, 849 F. Supp. 1210 (N.D. Ohio 1993)

(failure to hire police officer candidate with type 1 diabetes) Parties stipulated that diabetes is a disability. Court holds that an “individualized assessment is absolutely necessary” and that blanket exclusion is not legal. Distinguishes Davis v. Meese. This decision contains an excellent explanation of diabetes.

16. Sarsycki v. UPS, 862 F. Supp. 336 (W.D. Okla. 1994)

(package car driver with type 1 diabetes) Court holds: (1) insulin-dependent diabetes a disability under the Americans with Disabilities Act (ADA); and (2) person is “otherwise qualified” with reasonable accommodation that “food be within reach.” Builds on Bombrys v. City of Toledo. Distinguishes Chandler v. City of Dallas.

17. Lane v. Pena, 867 F. Supp. 1050 (D.D.C. 1994), aff’d, 518 U.S. 187 (1996)

(reinstatement of student with type 1 diabetes to U.S. Merchant Marine Academy) Disenrollment of a student who was diagnosed with diabetes while a student violated § 504 of the Rehabilitation Act. Academy must provide reasonable accommodation to such a student. Academy cannot disenroll such a student based solely on his diabetes without “an individualized inquiry.”

18. Coghlan v. H.J. Heinze Co., 851 F. Supp. 808 (N.D. Tex. 1994)

(discharge of regional manager of grocery specialty sales with type 1 diabetes) Court denies defendant’s motion for summary judgment. Court holds EEOC interpretive guideline contrary to ADA and that insulin-dependent diabetes is not a per se disability under the ADA. Plaintiff creates question of fact with affidavits concerning whether worker’s diabetes substantially limits major life activities.

19. Rosenblum v. Colorado Dep’t. of Health, 878 F. Supp. 1404 (D. Colo. 1994)

(discharge of staff assistant with type 1 diabetes) Court denied employee’s motion for summary judgment. “Numerous courts have recognized that diabetes may substantially limit a major life activity”; therefore, question of fact regarding this particular person. “Diabetes may substantially affect more than the plaintiff’s ability to work.”

20. Daugherty v. City of El Paso, 56 F.3d 695 (5th Cirl. 1995), 516 U.S. 1172 (1996)

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(Discharge of public bus driver with type 1 diabetes) Court of Appeals reversed jury verdict awarding compensatory damages. “[W]e believe we are bound by Chandler…we hold that, as a matter of law, a driver with insulin-dependent diabetes…presents a genuine substantial risk that he could injure himself or others.” Under ADA, such a person is not a qualified individual with a disability for the position of bus driver.

21. Siefken v. Village of Arlington Heights, 65 F.3d 664 (7th Cir. 1995)

(discharge of probationary police officer with type 1 diabetes) There is no claim under ADA if employee fails “to control a controllable disability” (diabetes) and thereby meet “the employer’s legitimate job expectations.” Holding based on employee’s “failure to alertly and accurately keep [himself] functional and monitor [his] disease.”

22. Turco v. Hoechst Celanese Corp., 906 F. Supp. 1120 (S.D. Tex. 1995), aff’d, 101

F.2d 1090 (5th Cir. 1996)

(discharge of chemical process operator with type 1 diabetes) Court affirms granting of summary judgment for employer. Court concludes employee not qualified under ADA because he could not perform essential duties required of job and “safety concerns presented by severity and volatility of his diabetes.” Follows Chandler v. City of Dallas and Daugherty v. City of El Paso calling person with diabetes “a walking time bomb” and “woe unto the employer who places an employee in that position.”

23. Cannon v. Clark, 883 F. Supp. 718 (S.D. Fla. 1995)

(discharge of worker at tax collector’s office with type 1 diabetes) Court denies defendant’s Motion to Dismiss finding plaintiff has stated a claim under the ADA when she stated that she is “forced to rely on medical assistance to perform major life activities and to survive” and that she would “lapse into a coma without insulin.”

24. Christopher v. Laidlaw Transit Inc., 899 F. Supp. 1224 (S.D.N.Y. 1995)

(discharge of school bus driver with type 1 diabetes) Court grant’s employer’s Motion to Dismiss, holding that the employee was not qualified to drive a bus because of DOT regulations. The parties agreed that the employee was a “handicapped individual” under the ADA, but disagreed on whether he was qualified and if accommodation was necessary. Court determined that he was not qualified and the employer did not need to reasonably accommodate him.

25. Deckert v. City of Ulysses, 1995 U.S. Dist. LEXIS 14526 (D. Kan. 1995)

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Court granted summary judgment to defendant on ADA claim of police officer with diabetes. Court rejects EEOC guidance suggesting that diabetes is a per se disability, and holds that plaintiff must present evidence that his diabetes limits a major life activity. Since plaintiff presented no such evidence (relying exclusively on the EEOC guidance), and since medical records and his testimony showed that his diabetes did not affect his work, the court held he had not proved he had a disability. Also, the court held that he was terminated for on-the-job misconduct, and there was no evidence that his diabetes played any role in his termination.

26. Pater v. Deringer Mfg. Co., 1995 U.S. Dist. LEXIS 12942 (N.D. Ill. 1995)

One of two plaintiffs claimed that she was terminated because defendant employer did not want to pay medical costs associated with her husband’s diabetes. The court, accepting EEOC guidance, held that diabetes is a disability because a person with diabetes would lose consciousness without insulin. The court granted summary judgment because the plaintiff was terminated for legitimate business reasons.

27. Equal Employment Opportunity Commission v. Chrysler Corp., 917 F. Supp.

1164 (E.D. Mich. 1996), rev’d per curiam, 172 F.3d 48 (6th Cir. 1998)

(failure to hire electrician with type 2 diabetes) Court holds that blanket exclusion of people with type 2 diabetes violates ADA. Type 2 diabetes is a “disability” within ADA (actions of prospective employer on how to treat applicant important). Determination of “direct threat” under ADA must be based on an individualized assessment.

28. Schluter v. Industrial Coils, Inc., 928 F. Supp. 1437 (W.D. Wis. 1996)

(discharge of supervisor in finishing department with type 1 diabetes) Court holds that employee was not disabled under ADA and grants employer Motion for Summary Judgment. Court evaluates whether a person is disabled with diabetes in her treated condition, i.e., taking insulin.

29. Moore v. City of Overland Park, 950 F. Supp. 1081 (D. Kan. 1996)

(failure to hire person with type 1 diabetes into a new position requiring field work) Type 1 diabetes must be evaluated in treated condition and therefore plaintiff does not have a disability because there is no substantial limitation on any major life activity.

30. Gilday v. Mecosta County, 124 F.3d 760 (6th Cir. 1997)

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(discharge of EMT with type 1 diabetes) Court reverses trial court decision granting employer motion for summary judgment. Court decides that whether a disability exists should be determined without taking into account mitigating measures, i.e., taking insulin. Court follows EEOC interpretive guideline at 29 CFR § 1630 App 1630.2(h).

31. Gonsalves v. J.F. Fredericks Tool Co., Inc., 964 F. Supp. 616 (D. Conn. 1997)

(discharge of a gauge technician with type 2 diabetes from a manufacturing plant) Court denies employer’s motion for summary judgment finding there was a genuine issue of material fact as to whether the employee was entitled to protection under the ADA. Court determined, based on an affidavit from the employee, that he was disabled, and that his disability substantially limited major life activities. Court relied on Turco v. Hoechst Celanese Corp. and Coghlan v. H.J. Heinz Co.

32. DiPol v. New York City Transit Authority, 999 F. Supp. 309 (E.D.N.Y. 1998)

Summary judgment granted in favor of plaintiff, a Power Distributor Maintainer, who, after working for defendant for 40 years while having diabetes, was placed on a no-work status and then on restricted duty after defendant learned of his diabetes. Defendant’s restrictions on plaintiff show that it perceived plaintiff as substantially limited in the major life activity of working. Plaintiff’s work record, in contrast to defendant’s speculation, demonstrates that he was qualified for the job and did not pose a direct threat to others.

33. Arnold v. UPS, 136 F.3d 854 (1st Cir. 1998)

(failure to hire as truck mechanic person with type 1 diabetes) Court reverses summary judgment for employer. Court holds that the clear legislative intent behind ADA protects diabetes. “Arnold’s diabetes makes him just the type of person the ADA was designed to protect.” Congress intended courts to evaluate a disability based on underlying medical condition without considering insulin use. Also outlines EEOC and DOJ support for this conclusion.

34. Erjavac v. Holy Family Health Plus, 13 F. Supp 2d. 737 (N.D. Ill. 1998)

(failure to accommodate managed care specialist with type 1 diabetes by providing better bathroom access) Court relies on and follows Arnold in denying employer’s motion for summary judgment. Erjavac’s diabetes is a disability in both its treated and untreated condition. Good discussion about how diabetes affects major life activities.

35. Baert v. Euclid Beverage, Ltd., 149 F.3d 626 (7th Cir. 1998)

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Reversing the district court’s grant of summary judgment in favor of defendant, the Seventh Circuit finds jury questions exist as to whether: 1) plaintiff, a person with insulin-treated diabetes, has a disability; 2) plaintiff is qualified to perform the duties of a “Helper” or “Warehouseman,” as opposed to the duties of commercial truck driver (which requires a commercial driver’s license); and 3) defendant failed to reasonably accommodate plaintiff by not transferring him to another position for which he is qualified.

36. Burroughs v. Springfield, 163 F.3d 505 (8th Cir. 1998)

Affirming district court’s grant of summary judgment in favor of defendant, the Eighth Circuit finds that plaintiff, a person with diabetes (insulin/oral medication usage unknown), did not establish an Americans with Disabilities Act claim because plaintiff was able to perform his position as a policeman with no accommodation (according to his physician), but plaintiff failed to control his diabetes. The Eighth Circuit follows the reasoning from Siefken v. Village of Arlington Heights, stating that it “only hold[s] that when an employee knows that he is afflicted with a disability, needs no accommodation from his employer, and fails to meet the employer’s legitimate job expectations, due to his failure to control a controllable disability he cannot state a cause of action under the ADA.”

37. Slane v. Mariah Boats, Inc., 164 F.3d 1065 (7th Cir. 1999), cert. denied, 527

U.S. 1005 (1999)

Affirming the district court’s grant of judgment as a matter of law in favor of defendant on Americans with Disabilities Act claim and jury’s verdict in favor of plaintiff on Illinois Workers’ Compensation Act claim, the Seventh Circuit finds that plaintiff, a person with diabetes (insulin/oral medication usage unknown), presented sufficient evidence to show that defendant’s reason for termination of plaintiff (failure to take a drug test) was pretext. Court notes that defendant fired plaintiff on the day plaintiff went into the hospital without even investigating as to why plaintiff refused to take a random drug test. Additionally, defendant gave the test on an excessively hot day when plaintiff was suffering from “heat-related symptoms.” Court reasons that this evidence in conjunction with the fact that defendant “knew any increase in health benefits claims would cause the company’s insurance premiums to go up,” provided sufficient evidence for the jury to find in favor of the plaintiff.

38. Williams v. Boeing Co., 165 F.3d 54 (9th Cir. 1999)

Affirming the district court’s grant of summary judgment in favor of the defendant, the Ninth Circuit finds that plaintiff, a person with diabetes (insulin/oral medication usage unknown), failed to present any discriminatory reason for his termination. Rather, plaintiff’s inappropriate behavior in violation

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of company policy was the reason he was terminated. Court notes that defendant even offered plaintiff reasonable accommodation and plaintiff rejected it.

39. Burke v. Royal Ins. Co., 39 F. Supp 2d. 251 (E.D.N.Y. 1999)

Summary judgment granted in favor of defendant. Plaintiff, a person with insulin-treated diabetes, was terminated on the day he returned to work after a diabetes-related toe amputation. Court finds that plaintiff must be determined to be disabled under the ADA in an untreated condition. However, even though disabled under the ADA, the plaintiff failed to provide any evidence that the reason for his discharge was a pretext.

40. Berg v. Norand Corp., 169 F.3d 1140 (8th Cir.), cert. denied, 120 S. Ct. 174

(1999)

Affirming the district court’s grant of summary judgment in favor of defendant, the Eighth Circuit finds that plaintiff, a person with non insulin-treated diabetes, is not precluded from performing a broad range of jobs, therefore she is not substantially limited in her ability to work and is not covered by the Americans with Disabilities Act or the Iowa Civil Rights Act. Plaintiff worked 70-80 hours per week until she was diagnosed with diabetes. Thereafter, her doctor restricted plaintiff to a 40-50 hour workweek. The court held that being limited to working 40-50 hours per week was not a substantial limitation in the major life activity of working. The court also noted that plaintiff started her own tax and accounting practice and became the chief financial officer of a construction company subsequent to her termination. Additionally, court refuses to hear plaintiff’s new “perceived as” argument on appeal.

41. Graham v. Connie’s Inc., 1999 U.S. App. LEXIS 5401 (9th Cir. 1999)

Affirming the district court’s summary judgment in favor of defendant, the Ninth Circuit finds that defendant terminated plaintiff, a person with insulin-treated diabetes, because plaintiff did not have a valid Class A driver’s license, nor was plaintiff qualified to have such a license without a medical waiver. Court ruled that defendant’s failure to realize that plaintiff could have applied for a waiver has no bearing. At the time of termination, plaintiff was not “qualified” for his job.

42. Duncan v. Sacramento, 1999 U.S. App. LEXIS 5916 (9th Cir. 1999)

Affirming the district court’s grant of summary judgment, the Ninth Circuit finds that plaintiff, a person with diabetes (insulin/oral medication usage unknown) continuously behaved inappropriately at work. Due to this inappropriate behavior defendant terminated plaintiff. Court notes that plaintiff’s poor job performance predated his diabetes diagnosis and was totally unrelated, therefore

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plaintiff could not establish that he was “otherwise qualified” to perform his job as a parking enforcement officer.

43. Cupola v. Central Can Co., 1999 U.S. Dist. LEXIS 4775 (N.D. Ill. 1999)

Plaintiff, a person with insulin-treated diabetes, does not survive summary judgment on his Americans with Disabilities Act claim but does survive summary judgment on his Age Discrimination in Employment Act claim. Court states the plaintiff presented no evidence to show that defendant knew plaintiff even had diabetes at the time plaintiff was terminated. Additionally, the court states that “there is nothing which would suggest that plaintiff was substantially limited in one or more of the major life activities.” Defendant presented sufficient evidence that it terminated plaintiff because of an economic down-sizing effort.

44. Espinal v. Northwest Airlines, Inc., 1999 U.S. App. LEXIS 8250 (9th Cir. 1999)

Affirming the jury’s verdict in favor of defendant, the Ninth Circuit finds that defendant acted under the premise that plaintiff, a person with diabetes (insulin/oral medication usage unknown), was only suffering from the short-term effects of a new diabetes diagnosis. Court reasons that since defendant knew that the effects experienced by plaintiff were short-term, defendant did not regard plaintiff as substantially limited in the long term, and thus the court’s jury instructions regarding plaintiff’s short-term condition were acceptable. Additionally, the court found no error with court’s direct threat affirmative defense instruction.

45. Gonzales v. New Braunfels, 176 F.3d 834 (5th Cir. 1999)

Affirming the district court’s grant of summary judgment in favor of the defendant, the Fifth Circuit finds that defendant did not discriminate against plaintiff, a person with insulin-treated diabetes and diabetic neuropathy, by forcing him to retire early. Plaintiff failed fire arms and driving examinations due to a lack of dexterity in his limbs because of his diabetic neuropathy and consequently is not “otherwise qualified” to perform the essential functions of a commissioned police officer. Additionally, the court reasons that defendant did not fail to reasonably accommodate plaintiff by not placing him in an evidence technician position because this position requires that the candidate be a commissioned officer certified to use a firearm and drive a police vehicle.

46. Buie v. BFGoodrich Textile Chems., Inc., 60 F. Supp 2d. 522, 18019 (W.D.N.C.

1999)

Plaintiff, a person with diabetes (insulin/oral medication usage unknown) and a kidney disorder fell asleep while working due to his medication and thus violated company policy. Plaintiff does not survive defendant’s motion to dismiss where

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court finds that “misconduct may be punished by discharge, regardless of whether the conduct was a result of a disability.”

47. Williams v. H.N.S. Management Co., 56 F. Supp. 2d 215 (D. Conn. 1999)

Plaintiff, who has type 2 diabetes that is treated by oral medication, did not survive defendant’s motion for summary judgment. Plaintiff, a bus driver, needed to urinate frequently because of his diabetes, and he was disciplined and ultimately resigned after a passenger observed him urinating into a cup while on the bus. The only major life activity he claimed was limited was his ability to work, and the court held that his need to urinate frequently did not substantially limit his ability to work. The court reasoned that plaintiff’s “condition restricts him from only a narrow set of jobs in his profession as a driver where restrooms are not frequently accessible.” Plaintiff’s 1983, age discrimination and common law wrongful termination claims were also dismissed.

48. Atkins v. USF Dugan, Inc., 106 F. Supp. 2nd 799 (M.D.N.C. 1999).

Defendant’s motion to dismiss granted against plaintiff who has coronary artery disease, hypertension, and diabetes. Plaintiff was terminated while recovering from bypass surgery; he asserted that he was disabled while recovering for the surgery but that he would have been able to return to work without restrictions a month after he was terminated. The court found that plaintiff had, at most, asserted “a temporary condition of limited duration” which as a matter of law could not constitute a disability under the ADA. Plaintiff survives motion to dismiss on “regarded as” claim with major life activity of working, based on statements by his supervisor that he was too old and sick to handle the stress of his job and should retire..

49. Kapche v. San Antonio, No. SA-95-CA-1215-EP (W.D. Tex. 1999).

Plaintiff, who has type 1 diabetes and is seeking position as a police officer, survives motion for summary judgment on major life activity of caring for oneself, but loses on major life activity of eating.

50. Kapche v. San Antonio, 176 F.3d 840 (5th Cir. 1999).

Vacating the district court’s grant of summary judgment in favor of defendant on issue of whether plaintiff’s diabetes creates a direct threat to safety, the Fifth Circuit remands case for a “determination of whether today there exists new or improved technology…that could now permit insulin dependent diabetic drivers in general, and Kapche in particular, to operate a vehicle safely.” Court also instructs that if the district court finds that such medical technology does exist, defendant must conduct “individual assessment” of plaintiff, a person with insulin-treated diabetes, to determine whether he is qualified to perform the essential functions of a police cadet.

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Note: Subsequent decision at 5th Circuit at #118.

51. Morris v. Dempsey Inc., Inc., 1999 U.S. Dist. LEXIS 18042 (N.D. Ill. 1999)

Plaintiff, who has diabetes (insulin/oral medication usage unknown), survives motion to dismiss on “regarded as” prong despite claim that he improperly pled that prong. Plaintiff did not claim that he currently had a disability. Significantly, the court noted that the reference to diabetes in Sutton is dicta, that a plaintiff may claim to be both substantially limited in a major life activity and able to do a job, and that a plaintiff may claim to have both a disability and be "regarded as" having one.

52. Petrosky v. New York State DMV, 72 F. Supp 2d. 39 (N.D.N.Y. 1999)

Plaintiff, a person with insulin-treated diabetes, survives motion for summary judgment on issues of whether she was otherwise qualified for position of Motor Vehicle Investigator. Defendant does not challenge plaintiff’s coverage under the ADA or state anti-discrimination law. However, in dicta, court describes Sutton as “questioning when and if diabetes qualifies as a disability.”

53. Winters v. ADAP, Inc., 76 F. Supp 2d. 89 (D. Mass. 1999)

Plaintiff, who has type 2 diabetes, survives motion for summary judgment under Massachusetts’s anti-discrimination law. While court does not directly address Sutton issue, decision states that in order to survive summary judgment plaintiff must provide evidence that she is a qualified individual with a disability within the applicable statute.

54. Harris v. Challenger Motor Freight, Inc., 1999 U.S. Dist. LEXIS 21177 (N.D.

Ohio 1999)

Summary judgment granted to defendant against plaintiff, who has type 2 diabetes and uses insulin. Plaintiff, who worked as a driver manager for a trucking company, asked to work only day shifts based on his doctor’s recommendation. He was terminated when defendant failed to find a day shift position. The court stated it was undisputed that plaintiff’s diabetes did not limit any major life activities when properly controlled. Plaintiff was advised not to rotate shifts and told that he had to adhere to a strict schedule for meals and insulin, but the court found this insufficient to demonstrate a substantial limitation. Plaintiff’s race discrimination and retaliation claims were also dismissed.

55. Rule v. Missouri Gaming Co., Inc., 11 Am. Disabilities Cas. (BNA) 561, 1999

U.S. Dist. LEXIS 22438 (W.D. Mo. 1999)

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Plaintiff, a person with type 2 diabetes (insulin/oral medication usage unknown), survives summary judgment on “regarded as” claim where court finds that a jury question exists as to whether defendant regarded plaintiff as substantially limited in his ability to work as a security guard or professions requiring similar amounts of physical activity. Summary judgment granted in favor of defendant on whether plaintiff has a disability. Court finds that plaintiff’s diabetes does not substantially limit plaintiff in any major life activity.

56. Nordwall v. Sears, Roebuck & Co., 99 C 8424 (2001), appeal docketed, No. 01-

1691 (7th Cir. 2001)

Pre-Lawson case granting defendant’s summary judgment motion holding that plaintiff, who has insulin-treated diabetes, did not establish that diabetes substantially limits her capability to work or care for herself. The court reasons that plaintiff’s employment with defendant, even through periods of illness, contradicts the assertion that she is substantially limited in the major life activity of working. Despite the fact that plaintiff’s diabetes requires her to have a low stress, “structured workday”, the court finds that plaintiff’s evidence merely suggests that she was unable to work under the stress of her last two supervisors, not that she is unable to perform a broad class of jobs. Court also reasons that since plaintiff tests her blood sugar and administers insulin herself, plaintiff is not substantially limited in caring for herself.

57. Heimback v. Lehigh Valley Plastics, Inc., 10 Am. Disabilities Cas. (BNA)

209, 2000 U.S. Dist. LEXIS 55. 2000 WL 14871 (E.D. Pa. 2000)

Plaintiff, who had diabetes, cirrhosis of the liver, and chronic kidney dysfunction, survived a motion to dismiss. Plaintiff had asked her employer to accommodate her by allowing her to work in a sitting position or to take occasional breaks to relieve swelling in her extremities caused by standing. The court found that she was substantially limited in the major life activity of standing.

58. Cardona v. United Parcel Serv., 79 F. Supp. 2d 35 (D.P.R. 2000)

Plaintiff, a person with insulin-treated diabetes, survives summary judgement on retaliation claim where court finds that a jury question exists as to whether defendant retaliated against plaintiff when plaintiff, due to his diabetes, requested a permanent position other than that of commercial driver. Nonetheless, plaintiff does not survive summary judgment on claim of discriminatory termination because plaintiff failed to offer sufficient evidence that defendant’s non-discriminatory reason for termination (because plaintiff lied about having diabetes during his medical examinations) was mere pretext.

59. Williamson v. Int’l Paper Co., 85 F. Supp 2d. 1184 (S.D. Ala. 2000)

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Summary judgment granted to defendant on issue of whether plaintiff has an actual disability. Plaintiff, who has type 2 diabetes treated with insulin and neuropathy, claimed that he was harassed by his co-workers and forced to test his blood glucose in the plant’s medical office rather than in the break room or at other locations in the plant. The court interpreted his allegations to assert that he was substantially limited in the major life activities of walking and working, and determined that he had not created a genuine issue of fact on either claim. He claimed that he could not walk more than a mile, could not run, and sometimes needed to get rides because of his difficulty walking. However, the court found that these allegations were not supported by medical testimony, which showed only that he experienced occasional burning and tingling sensations in his extremities and was never prescribed any treatment other than to improve his blood glucose control. Even if true, these restrictions in his ability to walk could not be considered substantially limiting. As to the major life activity of working, plaintiff did not allege and could not prove that he was limited in his ability to perform his own job, much less a broad range or class of jobs. Plaintiff’s other alleged limitations (difficulty sleeping, restricted diet, and the like) were lacking in detail and unsupported by evidence other than his own conclusory allegations.

60. Williamson v. Int’l Paper Co., 85 F. Supp 2d. 1199 (S.D. Ala. 2000)

Summary judgment granted to defendant against plaintiff, who has insulin-treated diabetes, on issue of whether defendant regarded plaintiff as being substantially limited in his ability to work or walk. Court focused on fact that defendant continued to employ plaintiff after learning of his diabetes and finding that plaintiff’s difficulty in walking was intermittent and mild.

61. Coleman v. Georgia Power Co., 81 F. Supp 2d. 1365 (N.D. Ga. 2000)

Summary judgment granted to defendant against plaintiff who has obesity and diabetes. Plaintiff did not claim that he was discriminated against because of diabetes, rather, focus of case is on obesity. However, in a footnote discussing diabetes, court states that plaintiff failed to claim that his diabetes cannot be controlled by either diet or medication, and that it appears to be currently so controlled.

62. Arena v. AGIP USA, Inc., 2000 U.S. Dist. LEXIS 2578 (S.D.N.Y. 2000)

Plaintiff, who has insulin-treated diabetes, survives motion for summary judgment where court focuses on derogatory comments about plaintiff’s medical condition.

63. Zenaty-Paulson v. McLane/Sunwest Inc., 11 Am. Disabilities Cas. (BNA)

893, 2000 U.S. Dist. LEXIS 20408 (D. Ariz. 2000)

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Plaintiff, who has insulin-treated diabetes, survives motion to dismiss where court finds question of fact exists as to whether defendant regarded plaintiff as substantially limited in her ability to work. Defendant’s misperception that plaintiff’s insulin reactions were seizures, combined with defendant’s erroneous assumption that plaintiff’s license was suspended because of these reactions, demonstrates that defendant may have believed plaintiff to be substantially limited in her ability to do any work requiring driving. Court grants dismissal of all of plaintiff’s other claims.

64. Denney v. Mosey Mfg. Co., Inc., 2000 U.S. Dist. LEXIS 7203 (S.D. Ind. 2000)

Plaintiff with insulin-treated diabetes does not survive summary judgment because no evidence was offered that he was forced to terminate employment because of defendant’s harsh working conditions. However, the opinion includes excellent dicta concerning the limits of Sutton. The court states that “[t]he legislative history of the ADA clearly shows that Congress intended that persons with diabetes be protected by the ADA.” Further, the court rejects a reading of Sutton that would allow an employer to prevent an employee from using effective corrective measures on the job (such as checking blood sugar levels, eating, and administering insulin) and then claim that its actions were beyond the reach of the ADA because the employee does not have a “disability.”

65. McLean-Nur v. Dep’t of Transp. of New York, 2000 U.S. Dist. LEXIS 3495

(S.D.N.Y. 2000)

Plaintiff, a person with diabetes (insulin/oral medication usage unknown), degenerative joint disease, carpal tunnel syndrome, shoulder injury, spinal stenois, and sleep apnea, does not survive summary judgment where court finds that plaintiff did not present sufficient evidence to establish a prima facie case of discrimination. The evidence illustrates that plaintiff did not do a satisfactory job and, even though defendant reasonably accommodated plaintiff’s medical impairments, plaintiff was still unable to perform the essential functions of a highway repairer.

66. Schaefer v. State Insurance Fund, 207 F.3d 139 (2d Cir. 2000)

Plaintiff, who has type 2 diabetes, had defeated defendant’s motion for summary judgement pre-Sutton with trail court finding that disability should be assessed pre-mitigation. Plaintiff then prevailed on merits and case was pending on appeal when Sutton was issued. Defendant sought reversal based on plaintiff’s condition post-mitigation. Second Circuit remanded case to district court to allow plaintiff to submit evidence that she is disabled post-mitigation and has a record of and is regarded as having a disability.

67. Medlock v. City of St. Charles, 89 F. Supp 2d. 1079 (E.D. Mo. 2000)

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Defendant’s motion to dismiss denied where court finds that plaintiff sufficiently alleges that, as a result of her diabetes, she is substantially limited in the major life activities of sitting and seeing. Plaintiff experienced blurred vision (due to fatigue) and numbness and swelling if she was forced to sit for long periods. Although plaintiff did not allege specific facts showing how the major life activities of sitting or seeing were substantially limited, her allegations were sufficient to raise an issue of fact as to whether she was disabled.

68. Needle v. Alling & Cory, Inc., 88 F. Supp 2d. 100 (W.D.N.Y. 2000)

Although court finds that plaintiff, who as a result of diabetes had toes on one foot and the heel of the other foot amputated and has vision problems, is substantially limited in his ability to walk, summary judgment is granted to defendant based upon plaintiff’s failure to be qualified to perform the job of warehouse associate. The court found that the plaintiff was unable to establish that he was otherwise qualified to perform the essential function of the job (which required heavy lifting and other physical effort) and there were no other vacant positions left for which he was qualified.

69. Vaughn v. Nationsbank Corp., 137 F. Sup. 2d 1317 (N.D. Ga. 2000)

Summary judgment granted to defendant where plaintiff, who has diabetes and renal disease, was not qualified for his position because of his sporadic and unpredictable absenteeism. When plaintiff was also diagnosed with end stage renal disease, he took a five-month leave of absence. He failed to come back to work for four months after the official leave ended, did not explain his additional absence, and continued to be tardy or absent without warning or explanation. Court did find that plaintiff had a disability under the ADA because he was substantially limited in his ability to perform his job on at least two days per week when he was scheduled for dialysis.

70. Shields v. Robinson-Van Vuren Assocs., Inc., 11 Am. Disabilities Cas. (BNA)

566, 2000 U.S. Dist. LEXIS 6234 (S.D.N.Y. 2000)

Defendant’s motion for summary judgment granted when plaintiff, who has diabetes controlled by diet and exercise, did not assert in his complaint that he is substantially limited in any major life activity, denied being so limited in his deposition, and only made this claim in an affidavit submitted in opposition to defendant’s dispositive motion. Plaintiff’s affidavit is rejected as it contradicts his own prior testimony, but court goes on to note that plaintiff is not substantially limited in his ability to eat or work. In addition, defendant never regarded plaintiff as being disabled because defendant was simply enforcing federally mandated requirements concerning air traffic controllers.

71. Whitney v. Sweetwater Sound, Inc., 2000 U.S. Dist. LEXIS 20548 (S.D. Ind.

2000)

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Defendant’s motion for summary judgment granted where plaintiff, who has insulin-treated diabetes, leg impairment, and brain cyst, claimed that – with regard to the major life activity of working – his diabetes “was just a matter of normal upkeep.” Consequently, the court found that plaintiff’s conditions, individually and collectively, did not substantially limit him in the major life activity of working. District court also finds the fact that defendant allowed plaintiff to continue to work until he found another job demonstrates that defendant did not regard plaintiff as disabled.

72. Kells v. Sinclair Buick-GMC Truck, Inc., 210 F.3d 827 (8th Cir. 2000).

Reversing district court’s grant of summary judgment in favor of defendant, the Eighth Circuit finds that a jury question exists as to whether plaintiff’s transfer and defendant’s denial of reasonable accommodation of plaintiff were motivated by discriminatory animus toward plaintiff’s disability. (Defendant did not dispute that plaintiff, a person with insulin-treated diabetes and muscular dystrophy, is substantially limited in his ability to walk.)

73. Sutherland v. New York State Dep’t. of Law, 2000 U.S. App. LEXIS 12484 (2d Cir. 2000).

Affirming district court’s grant of summary judgment in favor of defendant, the Second Circuit finds that plaintiff, a person with insulin-treated diabetes, failed to establish a prima facie case of discrimination because plaintiff’s work for defendant was substandard, thus rendering plaintiff unqualified for his position. Additionally, defendants offered ample evidence of a nondiscriminatory reason for termination and plaintiff offered no evidence that defendant’s reason was pretextual.

74. Epstein v. Kalvin-Miller Int’l, Inc., 100 F. Supp. 2d 222 (S.D.N.Y. 2000)

Plaintiff, a person with type 2 diabetes and heart disease, loses on summary judgment on ADA claim, but survives summary judgment on state anti-discrimination law claim. The court finds that “walking’ is a major life activity, but that plaintiff is not significantly restricted in his ability to walk, and that the ability “to undertake any other form of strenuous activity” is not a major life activity. Plaintiff does, however, meet the significantly broader definition of disability under New York law.

75. McKinney v. New Process Gear Div., 2000 WL 976902 (N.D.N.Y. July 10,

2000) Defendant’s motion for summary judgment granted where court finds plaintiff, who had diabetes and several other diseases, resigned voluntarily or, in the alternative, that plaintiff was terminated for cause for failing to

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show up for work. Further, court finds if a party is terminated without the employer’s knowledge of any disability, there can be no ADA violation. Court assumes without deciding that plaintiff had a disability, but in dicta notes that while plaintiff’s medical condition may have prevented him from working during the time he stopped taking his medication, this fact, standing alone, is not sufficient to establish he had a disability within the meaning of the ADA

76. Kohler v. Fairfield Board of Education, 3:98CV1810 (D. Conn. 2000)

Plaintiff, a person with insulin-treated diabetes, survives summary judgment. The court reasons that the fact that plaintiff had a continuous of history of satisfactory employment with defendant until she became ill presents sufficient evidence to establish a genuine issue of material fact as to whether the defendant “regarded” plaintiff as disabled and whether defendant retaliated against plaintiff for complaining about defendant’s allegedly discriminatory behavior.

77. Equal Employment Opportunity Comm’n and Keane v. Sears, Roebuck & Co.,

233 F.3d 432 (7th Cir. 2000)

Reversing in part district court’s grant of summary judgment in favor of defendant, the Seventh Circuit holds that the testimony of plaintiff, a person with non-insulin treated diabetes, and her doctor regarding plaintiff’s use of a cane and her inability to walk more than a single city block presents sufficient evidence to establish a jury question as to whether plaintiff’s neuropathy substantially limits her ability to walk. With regard to whether a condition that manifests itself episodically can constitute a disability, the court states, “[t]hat neuropathy manifests itself in a predictable yet intermittent pattern does not preclude a finding that one suffering from the condition can be termed disabled.” Plaintiff claimed she was constructively discharged because she was denied a reasonable accommodation that would have shortened the distances she needed to walk and because she was required to change her work schedule. Case was reversed on the reasonable accommodation claim but affirmed on the constructive discharge claim. [Note: Subsequent 7th Circuit decision at #190.]

78. Price v. Dolphin Services, Inc., 2000 U.S. Dist. LEXIS 19515, 2000 WL

1789962 (E.D. La 2000) Plaintiff, who has insulin-treated diabetes, survives defendant’s motion for summary judgment on issue of whether defendant regarded plaintiff as having a disability and issue of whether plaintiff was terminated because of this perceived disability. Court finds defendant’s admission that it relied upon the two “seizures” plaintiff had at work as the rationale for failing to recall plaintiff from a layoff as establishing material issues of fact on both of these issues.

79. Davis v. Rockford Springs Co., 2000 U.S. Dist. LEXIS 18131 (N.D. Ill. 2000)

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Defendant’s motion for summary judgment granted against plaintiff who did not prove that defendant’s stated reasons for his termination were merely pretext for discrimination. However, district court adopts the reasoning of Equal Employment Opportunity Comm’n v. Sears, Roebuck & Co., 233 F. 3d 432 (7th Cir. 2000) to determine that summary judgment is inappropriate on the issue of whether plaintiff, who has diabetes and a heart condition, is substantially limited in the major life activity of walking where plaintiff stated that he was limited from walking further than a city block or two and was required to elevate his legs.

80. Gragg v. NYS Dep’t of Envtl. Conservation, 2000 U.S. Dist. LEXIS 19607

(N.D.N.Y. 2000)

Plaintiff, who has diabetes (treated by insulin pump therapy) and epilepsy, survives defendant’s motion to dismiss on issue of whether plaintiff is an “otherwise qualified individual” for a spill response position that involves driving. Court finds that plaintiff presents sufficient facts to infer that defendant discriminated against plaintiff by failing to conduct an individualized assessment of plaintiff’s ability to perform the “spill response” position. Court relies on Kapche to find that it is no longer true as a matter of law that employees with diabetes are unsafe in driving jobs.

81. Hernandez v. Wilsonart Int’l, Inc., 2000 U.S. Dist. LEXIS 19270, 14 Fla. L.

Weekly Fed. D 77 (S.D. Fla. 2000)

Plaintiff, a person with type 1 diabetes and renal failure, does not survive summary judgment on issue of whether he was an “otherwise qualified individual.” Court finds that because plaintiff could not drive a forklift due to frequent dizzy spells, stand for more than 3 hours, or lift heavy material, he therefore could not perform the essential functions of a warehouseman.

82. Rowe v. Marley Co., 233 F.3d 825 (4th Cir. 2000)

Affirming district court’s grant of summary judgment in favor of defendant, the Fourth Circuit finds that plaintiff, a person with insulin-treated diabetes and end-stage renal failure who underwent a kidney and pancreas transplant, fails to present evidence that demonstrates that defendant’s reason for terminating plaintiffs, a reorganizational reduction in force, was pretextual.

83. Deibele v. USF Reddaway, Inc., 2000 U.S. Dist. LEXIS 215, 2000 WL 968813

(D. Or. 2000)

Defendant’s motion for summary judgment granted against plaintiff with type 2 diabetes on ADA and state law claims where plaintiff refused to participate in the accommodation process and failed to produce evidence that she was substantially

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limited her ability to work (the only major life activity raised). Plaintiff asserted that she was unable to work at night, but demonstrated that this was not a substantial limitation on her employability when she accepted a swing shift job with another employer before resigning her position with defendant.

84. Gray v. Sears, Roebuck & Co., Inc., 131 F. Supp 2d. 895 (S.D. Tex. 2001)

Defendant’s summary judgment motion granted where district court finds that plaintiff, who has type 2 diabetes (type of medication use unknown), failed to demonstrate that taking medicine for his diabetes and the need to avoid strenuous activity substantially limit any major life activity. Plaintiff also failed to establish that defendant subjected him to any adverse employment action when defendant placed plaintiff in a different store requiring a longer commute.

85. Simms v. City of New York, 106 F. Supp. 2d 398 (E.D.N.Y. 2001)

Court grants in part and denies in part plaintiff’s motion for summary judgment finding that plaintiff, who has insulin-treated diabetes, is regarded as substantially limited in his ability to work because he is prohibited, due to departmental regulation regarding his diabetes, from performing more than one type of job within the fire department. Court finds that maintaining one’s blood sugar level is not a major life activity. Defendant also took adverse employment action against plaintiff by placing him on light duty thus cutting down his chances for overtime and other benefits that accompany a full firefighter position. Court reasons that a question of fact exists as to whether plaintiff is “otherwise qualified” for a full firefighter position or whether he is a “direct threat” to the safety of himself and others. A question of fact also exists as to whether defendant conducted a sufficient evaluation of plaintiff’s particular circumstance to determine whether or not he is “otherwise qualified.” The same questions of fact bar summary judgment of plaintiff’s state disability claim.

86. Mack v. Strauss, 134 F. Supp. 2d 103 (D.D.C. 2001)

Although plaintiff, a recent kidney/pancreas transplant patient with insulin-treated diabetes, survived defendant’s motion to dismiss, court grants defendant’s summary judgment motion finding that plaintiff failed to demonstrate that defendant regarded him as having a disability. Court holds that simply because defendant followed plaintiff’s doctor’s instructions does not mean that defendant regarded plaintiff as disabled. The fact that defendant increased plaintiff’s responsibilities and treated him like every other employee further illustrates that defendant did not believe plaintiff is substantially limited in a major life activity. Plaintiff did not attempt to establish that he has a disability, but rather only plead the “regarded as” claim.

87. Johnson v. Penske Truck Leasing Co., 2001 U.S. Dist. LEXIS 2771 (E.D. La.

2001)

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Defendant’s summary judgment motion granted where court finds no evidence that plaintiff’s type 2 diabetes kept him from holding a broad class of jobs and thus he was not substantially limited in the major life activity of working. Plaintiff’s evidence also fails to show that defendant regarded plaintiff as disabled merely because defendant preferred that plaintiff, a bus mechanic, take oral medication rather than insulin so that plaintiff could retain a commercial driver’s license. Court finds that plaintiff’s inexplicable failure to notify defendant that he could not get to work due to an insulin reaction violated plaintiff’s “last chance” agreement with defendant, an agreement developed because of plaintiff’s long history of unexcused absenteeism. Consequently, defendant fired plaintiff for not calling in rather than for being absent due to his diabetes.

88. Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001)

Reversing the district court’s grant of summary judgment in favor of defendant, the Seventh Circuit finds that jury questions exist with regard to whether plaintiff, who has insulin-treated diabetes, is substantially limited in the major life activity of eating and whether he has a record of a disability. Court spells out in detail how plaintiff must carefully monitor his blood sugar, insulin dosages, and eating habits. Court distinguishes this case from Sutton, noting that plaintiff’s control and maintenance of his diabetes involves much more effort than simply putting on a pair of corrective lenses. “Lawson cannot simply eat when and where he wants to, or exert himself without concern for the effect the exertion will have on his glucose levels . . . [Instead, he] must always concern himself with the availability of food, the timing of when he eats, and the type and quantity of food he eats.” The court goes on to explain that “[t]he evidence shows that, every day of his life, Mr. Lawson must deal with the concern that the insulin he injects to treat his illness will itself bring about debilitating symptoms that can only be ameliorated by immediately eating certain foods.” Court also finds that the fact that plaintiff received Social Security disability benefits for a dozen years raises a jury question as to whether he has a “record of” a disability.

89. Rivera v. Apple Indus. Corp., 148 F. Supp.2d 202 (E.D.N.Y. 2001)

Summary judgment granted in favor of defendant where court finds that plaintiff, a person with insulin-treated diabetes and poor vision, does not have a disability where plaintiff asserts that “with insulin injections and proper diet, he can control his diabetes and prevent diabetic attacks.” Plaintiff also does not have a “record of” a disability where record is based on the same impairment that the court finds does not constitute a disability. Plaintiff did not request any accommodation for his impairments. Court reasons that even if plaintiff were to allege that his poor vision substantially limits his ability to see, plaintiff would not be able to perform the essential functions of a security guard. Court also notes the inconsistency between plaintiff’s assertion that he could perform his job in spite of his

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impairments and his assertion to the Social Security Administration that he was completely disabled upon his leaving his position with defendant.

90. Lutz v. Glendale Union High School, 8 Fed. Appx. 720 (9th Cir. 2001)

Reversing the district court’s grant of summary judgment in favor of defendant, the Ninth Circuit finds plaintiff, who has insulin-treated diabetes, has set forth evidence that would adequately support a verdict that her “uncontrolled,” “brittle” diabetes substantially limits her ability to walk because of the affect of physical exertion upon her blood glucose levels.

91. Jones v. Baltimore County, 2001 U.S. Dist. LEXIS 7064 (D. Md. 2001)

Summary judgment granted to defendant against plaintiff with heart disease and diabetes (insulin/oral medication usage unknown). Court finds that defendant was not obliged to accommodate plaintiff’s twenty-five pound lifting restriction because the ability to lift twenty-five pounds is an essential function of a “Storekeeper II.” Furthermore, court finds plaintiff is not substantially limited in his ability to work because he is able to perform several other categories of clerical positions as is evidenced by his obtaining a new job that is analogous to his old one with defendant. Court reasons that defendant’s encouragement of plaintiff to apply for other clerical positions within the County demonstrates that defendant did not regard plaintiff as disabled.

92. LaCorte v. O’Neill, 139 F. Supp. 2d 45, 2001 U.S. Dist. LEXIS 3812 (D.D.C.

2001)

Plaintiff, who has insulin-treated diabetes, survives summary judgment on Rehabilitation Act claim where court finds questions of fact exist as to whether: (1) plaintiff’s diabetes would prevent him from executing essential functions of a Secret Service agent, (2) reasonable accommodation would permit plaintiff to perform the essential functions of a secret service agent, (3) plaintiff is asking for accommodations that would cause undue hardship to defendant; and (4) plaintiff can sustain a constant state of readiness as is required of a Secret Service agent.

93. Bever v. Titan Wheel Int’l, Inc., 6 Fed. Appx. 401 (7th Cir. 2001)

Affirming the district court’s denial of defendant’s motion for judgment as a matter of law or for new trial, the Seventh Circuit finds that plaintiff, a person with insulin-treated diabetes, heart problems and a prosthetic leg, presented sufficient evidence to prevail on his claim of failure to provide reasonable accommodation. Court states that there is a question of fact as to whether defendant informed plaintiff that the post-amputation position he was assigned to was merely temporary. Furthermore, evidence that plaintiff successfully worked in that position for more than one year, in conjunction with plaintiff’s expert

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testimony, could lead a reasonable jury to find that defendant’s explanation for firing plaintiff was pretextual.

94. Epstein v. Kalvin-Miller Int’l, Inc., 139 F. Supp. 2d 469, 2001 U.S. Dist. LEXIS

4705 (S.D.N.Y. 2001)

Plaintiff, a person who has coronary artery disease, hypertensive and therosclerotic heart disease, and type 2 diabetes, lost on summary judgment on ADA claim, but survived summary judgment on state disability discrimination claim and eventually won at trial. Court denies defendant’s motion for new trial and remittitur and finds that plaintiff presented sufficient evidence for the jury to infer that defendant illegally discriminated against plaintiff when defendant hired an employee “to beef up the department” for fear that plaintiff “was going to die” following a cardiac incident. Defendant’s subsequent reduction in force, which resulted in plaintiff being fired, presented a jury question of whether defendant’s alleged reorganization of the company was really just pretext for discriminating against plaintiff because of his disabilities. (see case 73)

95. Montgomery v. Alcoa, Inc., 11 Fed. Appx. 471 (6th Cir. 2001)

Affirming district court’s grant of summary judgment in favor of defendant, the Sixth Circuit finds that plaintiff, a person with insulin-treated diabetes, never notified defendant that he was limited by his diabetes, nor did plaintiff request any accommodation to leave work to take insulin injections. Consequently, defendant’s dismissal of plaintiff for extreme absenteeism is justified.

96. Cash v. Smith, 231 F.3d 1301 (11th Cir. 2000)

Summary judgment granted to defendant against plaintiff who has type 2 diabetes, mitral valve prolapse, migraine headaches, depression, high blood pressure, a seizure disorder, and had a brain tumor removed. Plaintiff did not specify a major life activity in which she was substantially limited. The court found that she was not substantially limited in any major life activity, noting that the fact that defendant employed her as a typesetter for eight years showed that she was not substantially limited in the activity of working. The court also found that plaintiff was not "regarded as" being disabled under the ADA. The fact that the defendant would not permit her to drive the company car did not show that defendant regarded her as being substantially limited in the activity of working. There is very little discussion of diabetes in this opinion.

97. Smith v. Allstate Insurance Corp., 2001 U.S. Dist. LEXIS 13963 (N.D. Ill.

2001) Summary judgment granted to defendant against plaintiff, who has diabetes (insulin use unknown) and who was transferred to another position in the company. At the time of the transfer, plaintiff’s manger had suggested that

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plaintiff’s diabetes might interfere with her duties in her current position and that the new job was less stressful than her current one. Court finds the fact that defendant offered plaintiff another position in the company demonstrates that it did not perceived plaintiff as substantially limited in the major life activity of working.

98. Dyrek v. Garvey, 2001 U.S. Dist. Lexis 13603 (N.D. Ill. 2001) aff’d 334 F.3d 590 (7th Cir. 2003)

Summary judgment granted to defendant administrator of the Federal Aviation Administration (FAA) against plaintiff who was removed from his position as an Air Traffic Controller Specialist when he began to use insulin. Court finds that plaintiff failed to provide the information required by the FAA’s protocol for individual assessment of air traffic controllers who use insulin, despite repeated requests for such information over a two-year period. Although court finds that the issue of whether plaintiff has a disability was not properly before the court, court notes insulin-dependent people with diabetes can be substantially limited in the major life activity of eating (citing Lawson). Note: Decision on appeal at # 144 .

99. Kinzer v. Fabyanske, Westra & Hart, P.A., 2001 U.S. Dist. LEXIS 17537 (D.

Minn. 2001)

Partial summary judgment granted to defendant law firm against plaintiff, an associate who was first diagnosed with type 2 and then type 1 diabetes. Court finds that plaintiff did not have a disability because he “eat[s] regular food, exercises vigorously and regularly, his sleep disturbances do not – by his own testimony – interfere with his ability to maintain the hectic lifestyle of a litigation attorney, and his need to monitor his blood glucose levels are an inconvenience rather than a limitation.” Nor is plaintiff regarded as having a disability despite various alleged comments about his ability to perform his work, as these comments did not constitute evidence that plaintiff was substantially limited in his ability to perform a broad class of jobs or any other major life activity.

100. Fraser v. United States Bancorp, 168 F. Supp. 2d. 1188 (D. Or. 2001) rev'd 342 F.3d 1032 (9th Cir. 2003)

Summary judgment granted to defendant against plaintiff with type 1 diabetes. Plaintiff had been told by her supervisor that she could not eat at her desk and, that same day, had a dangerously low blood glucose level resulting in her becoming unconscious. Plaintiff was subsequently terminated while she was on leave to obtain an insulin pump. Court found that, despite evidence that included medical testimony that plaintiff’s blood glucose levels tend to swing high and low fairly rapidly and that she “suffered a diabetic coma and since then, has been rated permanently partially disabled by the Social Security Administration and receives

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benefits” plaintiff was not substantially limited in the major life activities of caring for herself, performing manual tasks, walking, seeing, talking, breathing learning, or working. Court further holds that the ability to metabolize food is not a major life activity. Defendant argued that plaintiff’s disability, if any, was a result of her failure to take proper care of herself, an argument that, while not specifically ruled on by the court, seems to have influenced the decision. Note: Decision on appeal at # 149.

101. Sepulveda v. Glickman, 167 F. Supp. 2d 186 (D. P.R. 2001)

Summary judgment granted to defendant against plaintiff with type 2 diabetes and renal insufficiency where court finds that plaintiff has not established that he is substantially limited and has not identified a major life activity. Court reviews various post-Sutton diabetes cases concluding the issue of when and under what conditions diabetes can be considered a disability under the ADA and Rehabilitation Act is “a matter of degree.” Here, court finds plaintiff doesn’t meet the standard where his only evidence is that his diabetes “requires medication, a fixed meal schedule, timely snack breaks, and the opportunity to the bathroom very frequently during the work day.”

102. Equal Employment Opportunity Commission and Tevrucht v. United Parcel

Service, Inc., No. 4:99-cv-21 (E.D. Tenn. 2001)

Summary judgement granted to defendant against plaintiff with insulin-treated diabetes who sought to maintain a driving position at UPS. Court finds that because plaintiff monitors his blood sugar level, takes insulin, and regulates his diet, he is not substantially limited in any major life activity; and he is not regarded as disabled where defendant relied upon Department of Transportation (DOT) regulations. Court determines that medical evidence about plaintiff condition, coupled with the collective bargaining agreement’s seniority provisions, and the lack of vehicles under the DOT weight limit at the facility where plaintiff worked, establish that plaintiff is not “otherwise qualified” for position and preclude defendant from having to accommodate plaintiff’s need to drive vehicles only under a certain weight as required by DOT regulations.

103. Equal Employment Opportunity Commission and Landers v. Wal-Mart Stores, Inc., 2001 U.S. Dist. LEXIS 23027 (W.D.N.Y. 2001)

Plaintiff, who has type 1 diabetes, defeats summary judgment motion on issue of whether he has a disability where case revolves around defendant’s policy regarding lunch breaks and, in particular, actions taken by a supervisor to deny plaintiff a lunch break. Plaintiff presented medical testimony demonstrating that his diabetes would limit his major life activities if is not controlled by, among other things, eating when necessary. “Passing out due to diabetic imbalances significantly impairs major life activities such as walking, seeing, hearing,

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breathing, and working. Thus, the evidence in the record relating to the incident in which [plaintiff] passed out at work because of his diabetic condition is sufficient to raise questions of fact as to whether or not [plaintiff’s] condition was sufficiently under control, even considering other ameliorative measures, so that it did not limit any of his major life activities.” Summary judgment denied on both ADA and New York Human Rights Law claims with court noting broader scope of state law.

104. Hutton v. Elf Atochem North America, 273 F.3d 884 (9th Cir. 2001)

Court of Appeals holds that plaintiff who has type 1 diabetes and who experienced a number of “diabetic episodes” at work and outside of work, including losing consciousness, created a direct threat to others in his position as a chlorine finishing operator. Court focuses evidence of potential for a catastrophic event as the result of plaintiff’s work with chlorine and thus on the severity and scale of potential harm to other.

105. Carruth v. Continental General Tire, Inc., 2001 U.S. Dist. LEXIS 22368

(S.D. Ill. 2001)

Defendant’s motion for judgment notwithstanding the verdict, for a new trial, and for an order or remittitur denied where plaintiff, who has diabetes, prevailed at trial on his claims under the ADA and Family and Medical Leave Act. Relying heavily on the 7th Circuit’s decisions in Lawson and EEOC v. Sears, court finds jury was provided sufficient evidence to support the finding that plaintiff was substantially limited in his ability to work as evidenced by diabetes-related absences for 21 days during a 6 month period.

106. Beaulieu v. Northrop Grumman Corp., 23 Fed. Appx. 811 (9th Cir. 2001)

Defendant was entitled to summary judgment on plaintiff’s failure to accommodate claim because plaintiff (who has type 2 diabetes and uses oral medication) failed to establish that he has a disability. Court finds that plaintiff’s diabetes did not substantially limit the major life activity of eating because plaintiff did not demonstrate that he was unable to eat or that his eating was significantly restricted, comparing the situation to that presented in Lawson. (See decision below, Beaulieu v. Northrop Grumman Corp, 165 F. Supp. 2d 1135; 2000 U.S. Dist. LEXIS 21435 (D. Hawaii 2000)). In a concurrence, Judge Berzon would not reach the issue of whether plaintiff is substantially impaired in a major life activity, stating that the 9th Circuit has never decided whether the necessity of people with diabetes strictly controlling their eating and dietary habits can constitute a substantial limitation in a major life activity. She further states that the facts in Lawson do not seem to be meaningfully distinguishable from this case.

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107. Equal Employment Opportunity Commission v. Murray, Inc., 175 F. Supp. 2d 1053 (M.D. Tenn. 2001)

Summary judgment granted to defendant on claim that individual employee with insulin-treated diabetes was covered by the ADA where EEOC did not claim that employee had a disability, was regarded as having a disability, or had a record of a disability. Summary judgment denied on pattern or practice claim where defendant did not establish that its policy that precluded anyone with insulin-dependent diabetes (and various other medical conditions) from operating forklifts was job-related and consistent with business necessity. Court specifically rejects defendant’s reliance as a matter of law on Department of Transportation regulations concerning commercial motor vehicles where forklifts are not covered by these regulations. “Defendant must establish that these medical conditions always cause specific physical or mental limitations that prevent the individuals from operating forklifts safely. Otherwise, the defendant is engaging in precisely the type of behavior that the ADA was designed to prevent: making employment decisions based on generalized assumptions about physical and mental impairments without determining the individual capabilities of each employee with the specific impairment.” Court also finds direct threat analysis inapplicable because defendant did not engage in an individualized assessment.

108. Hadley v. Wal-Mart Stores, 2001 U.S. Dist LEXIS 22174 (D. Ore. 2001)

Court denies defendant employer’s motion for summary judgment on failure to accommodate and retaliation/termination claims. Plaintiff had type 2 diabetes treated with oral medication and worked as a cashier but was later transferred to a stockroom position (a transfer he requested because he was having difficulty concentrating because of his diabetes) and then terminated, allegedly for sexual harassment. was a terminated cashier. Defendant seems to have conceded that plaintiff had a disability within the meaning of the ADA. Defendant did argue that he was not qualified to be a cashier because he was inaccurate, but the court held that factual issues remained because kept him as a cashier despite these inaccuracies until he requested to be transferred, and because no evidence was presented as to how much inaccuracy defendant tolerated in other employees. . The court held that The court held that issues of fact existed as to his accommodation claim because he alleged that he did not get meal breaks when he needed them and other employees were hostile when he asked for permission to take needed breaks. Also, defendant may have failed to engage in the interactive process because it may have been sufficiently on notice of his disability (based on a doctor’s note) and may have unreasonably delayed in transferring him out of a cashier position. Finally, his retaliation claim (based mainly on the fact of his termination after requesting accommodations) survived despite defendant’s claim that he was terminated for sexual harassment because of factual questions about the thoroughness of defendant’s investigation of the accusation and whether it followed policy by firing him. The court also dismissed plaintiff’s state common

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law wrongful discharge claims because the ADA and Oregon disability discrimination law provide an adequate remedy.

109. Nawrot v. CPC Int’l., 277 F.3d 896 (7th Cir. 2002)

Seventh Circuit, reversing grant of summary judgment of defendant, found plaintiff, a person with insulin-treated diabetes, "has sufficiently demonstrated that his diabetes substantially limits his ability to think and to care for himself, which are both major life activities." Plaintiff argued that he was not allowed to mitigate his diabetes at work because his employer refused to let him take breaks to check his blood glucose and then take appropriate action. The district court held that defendant’s actions did not matter because if plaintiff’s disability was mitigated before he walked in the factory door that was how he should be evaluated. The Seventh Circuit did not directly address this reasoning by the lower court, but did state that the Supreme Court's ruling in Sutton "is not, however, license for courts to meander into 'would, could, or should-have' land. We consider only the measures actually taken and the consequences that actually follow. [citing Sutton] Those who discriminate take their victims as they find them." Note: Case on remand at # 139.

110. Young v. Chicago Transit Auth., 189 F. Supp. 2d 780 (N.D. Ill. 2002)

Summary judgment granted to defendant when plaintiff, who has type 2 diabetes and uses oral medication, presented no evidence to support his allegation that he had a disability or that defendant was aware of any limitation on his ability to work

111. Pouliot v. Town of Fairfield, 184 F.Supp.2d 38 (D. Me. 2002) Motion to dismiss granted against plaintiff who asserts he has diabetes, depression, Bipolar II disorder, and Post Traumatic Stress Disorder, but fails to specify which health problem he claims as a disability or point to any major life activity that any of these conditions substantially limit. Plaintiff also fails to establish that he was qualified for the position of police chief. Motion to dismiss denied on claim of improper disclosure of medical records.

112. Kennebrew v. N.Y. City Housing Auth., No. 01 CIV 1654, 2002 WL 265120 (S.D.N.Y. Feb. 26, 2002)

Summary judgment granted to defendant against plaintiff, who had gestational diabetes, where disability claim is based upon pregnancy. Pregnancy itself does not constitute a disability and rarely will pregnancy-related complications rise to the level of disability. Court notes that plaintiff has not presented evidence that her gestational diabetes was other than a short-term condition or that it was

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substantial enough to constitute a disability under federal or state disability discrimination laws.

113. Cruz v. Northwest Airlines, Inc., 2002 U.S. Dist. Lexis 22507 (E.D. Pa. 2002) Plaintiff’s conditional offer of employment as a flight attendant was withdrawn because he has diabetes. Defendant’s motion to dismiss granted where plaintiff fails to make any averment that his diabetes substantially limits him in any major life activity or that defendant regards plaintiff’s impairment as substantially limiting. Complaint dismissed without prejudice. Note: Subsequent decision at # 127

114. Anyan v. New York Life Inc., 192 F. Supp. 2d 228 (S.D.N.Y. 2002) aff’d

Anyan v. Nelson, 68 Fed. Appx. 260 (2d Cir. 2003)

Summary judgment granted to defendant against plaintiff who has type 2 diabetes controlled with oral medication. Court determined plaintiff, who sold insurance, was not an employee of defendant as a matter of law. In addition, court found plaintiff did not have a disability under the ADA where plaintiff claimed only that he could not “operate on full speed” and required more time to travel because of the need to stop at bathrooms more frequently. Plaintiff also inferred that at some point his medication did start to “control everything.” Court noted that while some people with diabetes “may be significantly limited in their life activities even with medication, plaintiff has provided no evidence from which a reasonable jury could find that he falls into that category.” Court found that plaintiff met broader definition of disability under New York law, because his diabetes is demonstrable by medically accepted techniques. Court ultimately determined that plaintiff did not present sufficient evidence that his termination was the result of his diabetes and there was no evidence from which a jury could infer that plaintiff requested a reasonable accommodation.

Note: summary affirmance by Second Circuit in an unpublished decision.

115. Edlund v. St. Anthony Med. Ctr., 2002 WL 596358, 2002 U.S. Dist LEXIS 7248 (N.D. Ill. April 15, 2002)

Summary judgment granted against plaintiff who has numerous medical conditions, including diabetes. Defendant asserted plaintiff was discharged due to points plaintiff accrued for absences and various other disciplinary actions. Court rejected plaintiff’s assertion that defendant agreed to excuse any absences of hers so long as she told her supervisor it was related to her diabetes and that she had authorized defendant to obtain her medical records. Court found that no rational employer would take it upon itself to check medical records involving a chronic disease like diabetes.

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116. Orr v. Wal-Mart Stores, Inc., 297 F.3d 720 (8th Cir. 2002)

Eighth Circuit upholds grant of summary judgment against plaintiff with type 1 diabetes finding plaintiff did not have a disability under the ADA. Plaintiff, a pharmacist, was discharged for taking a lunch break to eat. Plaintiff argued the lunch break was necessary to control his diabetes, citing hypoglycemia he had experienced on the job as a result of delay in eating lunch. Court found arguments about how failure to properly manage plaintiff’s diabetes would incapacitate him to be arguments about how his impairment “might, could, or would” limit him that could not be considered in light of Sutton. Court rejected without specific discussion plaintiff’s claim that he was substantially limited in his ability to see, speak, type, read, and walk and refused to evaluate plaintiff’s claim that he was substantially limited in eating, finding that it wasn’t properly raised in the court below. Dissent argues that the major life activity of eating was properly raised before the appellate court and that the evidence created genuine issues of material fact on the questions of disability and reasonable accommodation.

117. Equal Employment Opportunity Commission v. Northwest Airlines, Inc., 216 F. Supp. 2d 935 (D. Minn. 2002)

EEOC sued the defendant airline, claiming that its blanket policy of barring insulin-treated people with diabetes and people with epilepsy from holding cleaner or equipment service employee positions violated the ADA. Court denied the defendant's motion to dismiss, holding that the EEOC was not required to demonstrate that the requirements of Rule 23 had been met in order to pursue a class action nor must it conduct an individual review of each applicant to access whether each has a disability and is qualified for the job in question.

118. Kapche v City of San Antonio, 304 F.3d 493 (5th Cir. 2002)

Kapche was rejected for the position of police officer with the City of San Antonio solely because he has insulin-treated diabetes. District court granted summary judgment for city based upon the Fifth Circuit’s decisions in Chandler v. City of Dallas, 2 F.3rd 1385 (5th Cir. 1993), cert. denied, 511 U.S. 1011 (1994) and Daugherty v. City of El Paso, 56 F.3rd 695 (5th Cir. 1995) cert. denied, 516 U.S. 1172 (1996) two decisions permitting blanket bans barring anyone with insulin treated diabetes from any position involving driving. The court in Chandler, however, found that such a prohibition might in the future become medically unnecessary. In Kapche I, 176 F.3rd 840 (5thCir. 1999), the Fifth Circuit remanded the case for a “determination of whether today there exists new or improved technology . . . that could now permit insulin dependent diabetic drivers in general, and Kapche in particular, to operate a vehicle safely” and, if so, the district court should conduct an individual assessment of Kapche’s abilities. On remand, district court refused to make this determination, holding that Chandler and Daugherty were controlling law at the time Kapche applied, and

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again granted summary judgment to San Antonio. Kapche appealed. In this decision, Kapche II, the appellate court vacates the district court decision. Pointing to four Supreme Court cases since Chandler, the court states that an individualized assessment of the applicant’s ability to safely perform the essential functions of a given position is mandated by the ADA, thus prohibiting any blanket bans involving diabetes. The case is remanded for the district court to determine whether, under an individualized assessment, Kapche could perform the essential functions of a San Antonio police officer. Note: prior 5th Circuit decision at #50

119. Stedman v. Bizmart, Inc., 219 F. Supp. 2d 1212 (N.D. Ala. 2002)

Defendant’s motion for summary judgment granted against plaintiff who is a liver transplant recipient and has type 2 diabetes. Relying heavily on Toyota Motor Manufacturing v. Williams, 534 U.S. 184 (2002), court found that plaintiff could not make out a prima facie case under the ADA because (1) he had not produced any evidence that his diabetes impeded his activities outside of the workplace, and (2) he had testified that he believed he could perform the job of receiving clerk, and thus his impairment only precluded him from performing his particular job as an industrial engineer. Further, the court observed that the employee's only evidence that his employer regarded him as disabled was his supervisor's comment to the employee that "he didn't want to be responsible for affecting someone's health," but he did not explain how this proved that his employer regarded him as disabled under the ADA. Finally, employer agreed to transfer the employee to the receiving clerk position three weeks before he quit his job and court found plaintiff offered no objective basis for his assertion that he was forced to resign.

120. Pouliot v. Town of Fairfield, 226 F.Supp.2d 233 (D. Me. 2002)

Summary judgment granted to defendant. Plaintiff former chief of police contended that the defendant failed to accommodate his diabetes and bipolar disorder by postponing a disciplinary hearing, and that defendant wrongfully disclosed confidential information concerning his medical conditions. Court held that plaintiff failed to provide evidence that he was significantly restricted in his ability to sleep, and thus he did not have a disability within the meaning of the ADA. Court further found plaintiff’s wrongful disclosure claim failed because the medical information was not obtained as a result of an “employer inquiry” and because he could show no injury in fact.

121. Bell v. Owens-Illinois, Inc., 14 Am. Disabilities Cas. 648, 2002 U.S. Dist. LEXIS

26481 (W.D. Pa. 2002)

Court denies defendant employer’s motion for summary judgment. Plaintiff employee with diabetes provided defendant with a physician’s letter indicating

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that it would be in plaintiff’s “best interests” to work a regular shift (instead of alternating shifts) to decrease hypoglycemic risks. Defendant transferred plaintiff to a day shift position at a lower salary level, and later agreed to provide plaintiff with regular break times to eat. Plaintiff later retired and sued, claiming failure to accommodate and constructive discharge. There were genuine issues of fact as to whether defendant accommodated plaintiff’s disability, as plaintiff claimed that the agreement to provide him with regular break times was not enforced, and claimed that he should have been allowed to retain his prior salary and seniority status when he transferred to the new position. Although violating an existing seniority system is generally not a reasonable accommodation, factual issues as to plaintiff’s proper seniority status precluded summary judgment on this issue. Court also rejects defendant’s judicial estoppel argument based on plaintiff’s application for disability benefits, because it found that plaintiff claimed he could have done his job with accommodations and, therefore, there was no conflict between his statements during litigation and those made in the benefits application. The court granted summary judgment as to plaintiff’s ADEA claims and denied it as to plaintiff’s ERISA claims. In a related case, Bell v. Glass, Molders, Potters, Plastics and Allied Workers International Union, 2002 U.S. Dist. LEXIS 27703 (W. D. Pa. 2002), the court granted summary judgment on plaintiff’s claim arising out of the same factual situation against his union for breaching its duty of fair representation. Plaintiff claimed the union breached its duty by failing to act when the employer violated the collective bargaining agreement by failing to accommodate the plaintiff, and by failing to pursue a grievance on his behalf. The court found no evidence that the union’s actions were motivated by plaintiff’s disability, and granted summary judgment.

122. .Jordan v. Stanziola, 2002 U.S. Dist. LEXIS 27334 (M.D. Pa. 2002) aff’d at

2004 U.S. App. LEXIS 8736 (3d Cir. 2004)

Court granted summary judgment against plaintiff police officer with diabetes and back problems, holding that he did not have a disability under the ADA. Plaintiff was terminated following a history of discipline problems and back problems that placed him under medical restrictions. He sued, raising a claim under the ADA as well as various other statutory and constitutional violations. The court held that his diabetes did not constitute a disability because he presented no evidence as to how it affected his daily activities; he simply tried to rely on his diagnosis of diabetes standing alone. The court also held that his back injury was not a disability and the defendants did not regard him as disabled. The appeals court adopted the district court’s reasoning without further comment.

123. Nordwall v. Sears Roebuck & Co., 46 Fed. Appx. 364 (7th Cir. 2002)

Seventh Circuit affirms lower court grant of summary judgment against employee with type 1 diabetes, finding that she is not substantially limited in either working

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or caring for herself. Court reasons that Nordwall provided no evidence that she was substantially limited in working where she had performed her job successfully for many years and testified she felt qualified for the approximately twenty-four jobs she applied to prior to her termination. Rather, she was only unable to perform her job when it became highly stressful, which the court found did not establish a substantial limitation for purposes of the ADA. Applying the reasoning in Toyota v. Williams, 534 U.S. 184 (2002) to the major life activity of caring for oneself, the court focused on Nordwall’s ability to perform everyday personal hygiene and household tasks in finding she was not substantially limited. The court discounted the blackouts and dizziness that she experienced numerous times as fleeting, although acknowledging that if severe and/or frequent enough they might impose substantial limitations. [Note court ignored Nordwall’s arguments about her need to carefully balance food, exercise, and medication in order to avoid severe hypoglycemia and the impact of this balancing process on caring for herself.]

124. Keller v. The McGraw-Hill Companies, Inc., 2002 U.S. Dist. LEXIS 16887

(S.D.N.Y. Sept. 10, 2002) Summary judgment granted to defendant against plaintiff who has type 1 diabetes

with neuropathy, nephropathy, and retinopathy. Court ruled that plaintiff’s state law claims failed because he did not bring his claim for failure to accommodate in a timely manner and he was unable to perform his job without accommodation at the time he brought his constructive discharge claim, as required by state law. Local law did provide for accommodations, but the court found it did not require employer to permit plaintiff to work part time at home as requested. Further, court found plaintiff could not have performed his work even with the requested accommodations.

125. Breece v. Americare Living Centers, 2002 U.S. Dist. LEXIS 18147 (S.D. Ind.

September 25, 2002) Defendant’s motion for summary judgment defeated. Plaintiff has numerous

medical conditions including diabetes, peripheral neuropathy, and coronary artery disease. During a transition period between owners, plaintiff asked to use an electric cart due to difficulty in walking. The cart was suggested by his health care providers and would have been supplied by the Veteran’s Administration. In response, defendant questioned plaintiff’s ability to do the job and he was the only employee not retained by new company. Court found that plaintiff had demonstrated that he could perform the essential functions of maintenance supervision and employer never seriously attempted to determine whether the employee was a qualified individual. Further, plaintiff creates issues of material fact as to whether his medical condition was a motivating factor in defendant’s decision not to hire him.

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126. Munoz v. Western Resources, Inc., 225 F.Supp.2d 1265, 2002 WL 31175522, 2002 U.S. Dist. LEXIS 18614 (D. Kan. Sept. 26, 2002)

Court grants defendant’s motion for summary judgment. Plaintiff claimed that his

diabetes prevented him from working a rotating shift, but court found that the letter from plaintiff’s doctor did not support this position. Court further reasoned that even if plaintiff’s diabetes substantially limited his ability to work a rotating shift, this was not sufficient to show that he was substantially limited in his ability to work in a class or broad range of jobs. Court also found plaintiff failed to establish that an accommodation was necessary.

127. Cruz v. Northwest Airlines, Inc., 13 Am. Disabilities Cas. (BNA) 1425, 2002

U.S. Dist. LEXIS 20092 (E. D. Pa. 2002)

Plaintiff’s conditional offer of employment as a flight attendant was withdrawn because he has diabetes. Reversing a prior decision, defendant’s motion to dismiss denied where court found that, as a result of Supreme Court’s decision in Swierkiewicz v. Sorema, 534 U.S. 596 (2002), plaintiff’s pleadings were sufficient to survive dismissal on actual disability. Court found plaintiff’s averment that he has a disability can reasonably be interpreted as alleging that he is substantially limited in a major life activity. Plaintiff also survives motion to dismiss on regarded as prong where he claims that defendant perceived him “as being substantially limited in one or more major life activities, such as, by way of example and not limitation, eating and traveling.” Note: Prior decision at #113

128. Salim v. MGM Grand Detroit, LLC, 231 F.Supp.2d 577 (E.D. Mich. 2002)

Summary judgment granted to defendant where plaintiff, who has diabetes, asserted that she was substantially limited in the major life activities of doing housework, working and walking. Plaintiff admitted she did not stop doing housework until after she was terminated and that, before her termination, her life was “pretty normal”. Plaintiff did not identify a broad class of jobs she was unable to perform, and did not describe her walking impairment at all in the record. Prior to her discharge, plaintiff’s requests to change to the day shift in response to symptoms of stomach cramps, sweating, and diarrhea – experienced as often as three or four times a shift while on night shift – had been denied. Plaintiff also failed to show that employer’s asserted reason for firing her, the fact that she submitted an altered return to work form, was a pretext for discrimination. (Note: Decision on appeal at #173.)

129. Equal Employment Opportunity Commission and Armstrong v. Northwest

Airlines, Inc. 246 F. Supp. 2d 916, (W.D. Tenn. 2002)

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Defendant's motion for summary judgment defeated. Armstrong was rejected for a position as an Equipment Service Employee based upon his type 1 diabetes. Court finds that Armstrong does not have a disability where he has not shown that his diabetes substantially limits his ability to eat or care for himself, based in large part on Armstrong's assertions that his diabetes care is not burdensome and that he has never experienced symptoms of low blood sugar beyond weakness and trembling. However, summary judgment is rejected on the issue of whether defendant regarded Armstrong as substantially limited in the major life activity of working where defendant's doctor stated that Armstrong's poorly control diabetes prevented him from operating heavy equipment and working at unprotected heights, and such restrictions would disqualify Armstrong from a broad class of jobs. Court relies on plaintiff’s history of performing similar jobs without problem to reject defendant's request for summary judgment on the issue of whether Armstrong was qualified for the job in question. Further, the fact that defendant's doctor never personally examined Armstrong, did not examine his complete medical records, and did not consult with his treating physicians provides sufficient evidence that defendant did not conduct the required individualized assessment of plaintiff's ability to do the job in question.

130. Equal Employment Opportunity Commission v. Dillon Cos., 310 F.3d 1271 (10th

Cir. 2002)

Court enforces EEOC subpoena for employment records regarding claim for failure to reasonably accommodate under ADA. Court finds that an ADA accommodation that violates a seniority-based promotion scheme is not automatically “unreasonable”. Court also notes that assigning an employee to a lower-grade position is a reasonable accommodation only when there are no vacant equivalent positions

131. Thompson v. Eaton Corp., 2002 U.S. Dist. LEXIS 26381 (W.D. Wisc. 2002)

Court grants employer’s motion for summary judgment. Court reasons that the employee failed to present evidence that his type 2 diabetes is a disability: the employee’s one-time five week hospitalization is too short and the plaintiff’s occasional hypoglycemic reactions were not severe enough because he recovered from each reaction within an hour, and there was no evidence that his symptoms of dizziness, weakness, or difficulty concentrating were “severe". Court reaches this conclusion even though plaintiff experienced at least four hypoglycemic reactions in a sixteen-month period, three of which were at work and one of which led to his failing a test that resulted in his discharge.

132. Carlson v. Rent-A-Center, 237 F. Supp. 2d 114,(D. Me. 2002)

Summary judgement granted to defendant where plaintiff, proceeding pro se, claimed that his diabetes was completely controlled by medications except for its affect on his ability to walk. Plaintiff had two infections (one of which resulted in gangrene) and could not walk more than a mile on a good day and a half-mile on

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a bad day. Court found these limits are not severe when measured against the walking abilities of the average person in the general population and that the infections were not severe or enduring. Court further found plaintiff did not have a record of a disability nor was he regarded as having a disability even though he was terminated upon defendant's receipt of a note from plaintiff's doctor asserting that plaintiff needed to be on permanent light because, duty due to diabetes-related complications, he was physically unable to do the tasks in his job as redefined by the new owner.

133. Williams v. City of London, 252 F.Supp.2d 388 (E.D. Kent. 2003)

Court grants summary judgment for employer that terminated employee with diabetes and heart disease. Court declines to do Sutton-analysis of ADA claim because plaintiff did not present evidence rebutting city’s posited non-discriminatory reason for termination. Court notes that the City employed plaintiff for seven years, and that plaintiff had diabetes the entire time – suggesting that if the City wanted to fire plaintiff because of his diabetes it would have done so long ago.

134. Equal Employment Opportunity Commission v. J.B. Hunt Transp., 321 F.3rd 69 (2d Cir. 2003)

Appellate court affirms summary judgment for long-distance trucking company. EEOC brought suit against trucking company with blanket ban on hiring drivers who took certain medications that it claimed might inhibit driving skills (including diabetes-related drugs). Court held that employer did not perceive ineligible job applicants as limited in any major life activity, bur rather only as unable to perform the task of driving fright-carrying tractor trailer trucks over long distances for extended periods of time, and that this did not constitute a class of jobs nor a broad range of jobs.

135. United States v. Miss. Dep’t of Pub. Safety, 321 F.3rd 495 (5th Cir. 2003)

(State Highway trooper trainee terminated because of his diabetes) Appellate court overrules district court’s 11th Amendment dismissal of claims holding that, even if the individual employee cannot bring suit for monetary damages, the United States government can bring suit to enforce an individual employee's rights granted under the ADA. Furthermore, the ADA’s regulation of employment is proper under Commerce Clause jurisprudence.

[affirming district court opinion reported at 159 F. Supp. 2d 374 (S.D. Miss. 2001); see opinion on remand at #157 below]

136. Thompson v. Catenary Coal Co., 2003 U.S. Dist. LEXIS 20304 (S.D. W.Va.

2003)

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(failure to hire worker with insulin treated diabetes as preparation plant operator) Summary judgment granted to employer because plaintiff did not have a disability. The complaint only referred specifically to state disability discrimination law (which mirrors the ADA), but since it made general reference to federal law the court also analyzes the claim under the ADA. The court held the plaintiff presented no credible evidence that he had a substantial limitation of any major life activity under Sutton. Plaintiff had reported on his application that diabetes had had no effect on his work history. Plaintiff tried to claim he was disabled in the major life activities of lifting and working (because of a 50 pound lifting restriction), but the court rejected this argument because it was based only on plaintiff’s testimony, not a physician’s opinion and in any case was not a substantial limitation. Furthermore, the court concludes that the employer didn’t regard plaintiff as disabled and acted for legitimate, nondiscriminatory business reasons. Defendant claimed it failed to hire plaintiff because it miscounted the number of new positions and plaintiff offered no evidence that this reason was pretextual, and in any event defendant hired a number of other applicants with diabetes.

137. Bushman v. Electrolux Home Products, 2003 U.S. Dist. LEXIS 4507 (N.D.

Iowa 2003)

Court grants summary judgment for employer against laid-off factory employee based on finding that plaintiff he had a "mild form" of diabetes because it did not require injection of insulin or a regimen of exercise and because plaintiff conceded that timely administration of medication leaves him no different than any other non-disabled individual. This conclusion was reached even though plaintiff had two toes amputated as a result of his diabetes and it was his inability to wear the prescribed footwear that led to his layoff.

138. Millage v. City of Sioux City, 258 F. Supp. 2d 976 (N.D. Iowa 2003)

(city bus driver placed on leave of absence because of his insulin-treated diabetes) Court denies summary judgment for employer. Court holds that, after Sutton, ADA claims require an individualized inquiry of whether the employee has a disability and whether the employee can perform the essential functions of the job (favorably citing Kapche). The City cannot rely on a “blanket exclusion,” even if the City voluntarily adheres to federal regulations that might bar its employee from driving buses interstate. Here, a reasonable jury could find that the employee can perform all the essential functions of driving a bus where the employee has had only one severe diabetic reaction on the job and his medical records and driving safety records indicate he can safely control his diabetes. Further, there must be an individual, fact-based assessment of what is actually required to do the job in question and there is an issue of fact as to whether the employee needed to meet federal standards for intrastate driving where only two of twenty-one bus routes required crossing state lines. The court further denies summary judgment for employer on the issue of whether

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employee can be estopped from arguing he is disabled under the ADA because he has applied for long-term disability benefits. The court suggests there might not be an inconsistency because, if the city prevails in this case, the finding of facts would make the employee eligible for such benefits.

139. Nawrot v. CPC International, 259 F. Supp 2d 716 (N.D. Ill. 2003)

On remand, trial court holds that actions for reasonable accommodation claims under the ADA do not require an adverse employment action. (Here, Nawrot was terminated for reasons previously found to be unrelated to his diabetes.) Court also holds that a failure to accommodate claim is not automatically precluded when the employee is able to perform essential job functions without the accommodation. The court explains, “To hold that a person with potentially life threatening diabetes is not entitled to accommodations so that he may monitor his blood sugar levels would force diabetics like Nawrot to choose between working while risking physical harm and death, or unemployment. The ADA was created to prohibit placing disabled persons in this position.” Note: Court of appeals decision leading to remand at #109.

140. Betton v. Yellow Transp., Inc. 2003 U.S. Dist LEXIS 8682 (E.D. Tenn. 2003)

Court denies plaintiff’s motion for summary judgment as to wrongful failure to hire under ADA because plaintiff did not demonstrate that his diabetes, in its corrected state, substantially limited any particular major life activity and because defendant is found to be justified in requiring a commercial driver's license for the tasks performed by dock workers at this particular facility.

141. Gourgy v. Metro Nashville Airport Authority, 61 Fed. Appx. 958 (6th Cir.

2003)

(airport employee discharged after making diabetes-related shift change request) Court upholds summary judgment in favor of employer regarding failure to accommodate claim under ADA because employee’s doctor testified that employee’s diabetes did not substantially limit him in any major life activity and employee presented no evidence to contradict the doctor’s testimony. Plaintiff's claim also fails because he did not show that defendant's stated reason for discharging him, proving misleading information on his employment application, was pretextual.

142. Bugg-Barber v. Randstad, 271 F.Supp.2d 120 (D. D.C. 2003)

Court denies summary judgment on defendant's claim that plaintiff with type 1 diabetes does not have a disability finding that plaintiff's diabetes "substantially affects her abilities to perform manual tasks when it is wildly out of kilter." However, court grants summary judgment for defendant on failure to accommodate claim. Employee was fired after two related instances of

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confronting and threatening her supervisor. Employee attributed her behavior to unstable blood sugar levels (she subsequently spent 9 days in the hospital). Employee claims she was wrongfully discharged because her employer needed to accommodate this diabetes-related behavior. Court holds that employer did not violate the ADA because employee did not make a request for reasonable accommodation for such behavior prior to its occurrence. The court noted that the employer had made other requested accommodations for this employee (i.e. time to check blood sugar, special snack breaks).

143. Smith v. District of Columbia, 271 F.Supp.2d 165 (D. D.C. 2003)

Court denies employer’s motion for summary judgment. Court finds that the employee, a mental health specialist with type 2 diabetes, shoulder and back injuries, and a respiratory infection, may be substantially limited in the major life activity of walking. Employee requested an accommodation of not making house calls to her patients' houses. Judge relies heavily on a single detailed letter from employee’s physician regarding the employee’s limited ability to walk. In this letter, the physician utilizes Sutton-like “major life activity” language.

[see subsequent opinion at #151] 144. Dyrek v. Garvey, 334 F.3d 590 (7th Cir. 2003)

Affirming lower court's grant of summary judgment to defendant administrator of the Federal Aviation Administration (FAA) against plaintiff who was removed from his position as an Air Traffic Controller Specialist when he began to use insulin and ultimately terminated. Court holds plaintiff is not able to establish pretext where he failed to provide the information required by the FAA’s protocol for individual assessment of air traffic controllers who use insulin, despite numerous requests for specific information over several years. Further, courts finds that although later submission may indicate plaintiff's diabetes was under control at one point in the long process that led to his discharge, there is nothing to demonstrate stable control over a period of time. Plaintiff also failed to provide sufficient evidence that there were available positions that he was qualified for at the relevant time. Note: Decision below at # 98.

145. Harewood v. Beth Israel Med. Ctr., 2003 U.S. Dist. LEXIS 10002 (S.D.N.Y.

2003)

Court grants in part defendant’s 12(b)(6) motion to dismiss ADA wrongful termination and retaliation claims by plaintiff, a dietary aide with diabetes and heart problems. Plaintiff did not properly plead that she has a disability under the ADA because she failed to identify any major life activities limited by her conditions, and did not plead any facts that any major life activity was substantially limited. She did adequately plead that she has a disability under

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state law, which does not require that an impairment be substantially limiting. She also adequately pled that she was regarded as disabled because of a statement that her employer told her to go on permanent disability rather than return to work. Finally, she properly pled facts to show that she may have been qualified for her job, despite defendant’s claim that she lacked proper certification, because defendant continued to employ her for a significant period of time despite her lack of certification.

146. Darst v. Vencor Nursing Ctrs., 2003 U.S. Dist. LEXIS 14829 (S.D. Ind. 2003)

(Registered Nurse with “brittle” diabetes terminated for excessive absences) Court grants employer’s motion for summary judgment, finding that employee with insulin-treated diabetes is not disabled under the ADA because, although she is limited in major life activities (including eating), she is not substantially limited due to the effectiveness of her treatment regimen. Court reached this conclusion despite the fact that plaintiff has had numerous serious episodes of hypoglycemia including two at work (one requiring an ambulance) as well as neuropathy and fertility problems. Court also finds that plaintiff did not bear her burden of proving that the employer regarded her as disabled where she failed to identify which major life activity/activities employer regarded her as substantially limited in performing. Court finds persuasive the fact that the employer had notice of employee’s diabetes from time of hiring, but did not take adverse action against the employee until she missed multiple days of work (although at least some of this missed time was directly tied to plaintiff's diabetes).

147. White v. Coyne International Enterprises Corp., 2003 U.S. Dist. LEXIS 15347

(N.D. Ohio 2003)

Summary judgement granted to defendant that terminated plaintiff after he informed a supervisor that he was having the symptoms of a diabetic episode at work and needed to go home. Court held that under Ohio law -- which tracks the ADA -- no reasonable jury could find that employee was substantially limited in the major life activity of working where his episodic conditions of sudden-onset blood sugar spikes were not permanent or long term and where plaintiff had not attempted to prove that he is significantly restricted in his ability to perform either a class of jobs or a broad range of jobs. Court also interprets Sutton to require a plaintiff to take available mitigating measures, thus ruling that plaintiff isn't substantially limited because he admitted that he failed to consistently take medication for his diabetes or control his diet. Court also rejected the proposed major life activity of being able to function in stressful circumstances. Court accepts defendant's reason for discharge, that plaintiff constantly argued with management and was involved in a "prolonged, outrageous, and insubordinate tirade directed at two supervisors" and finds that plaintiff did not seek an accommodation from defendant.

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148. McCusker v. Lakeview Rehab Ctr, 2003 U.S. Dist. LEXIS 16340 (D. N.H. 2003)

Court denies employer’s motion to dismiss claim of rehabilitation trainer who was discharged "because of his diabetes and the safety factors that are involved in hypoglycemic episodes . . . " Court rejects defendant's argument that plaintiff does not have a disability, finding that plaintiff's numerous on-the-job hypoglycemic episodes are evidence that his type-1 diabetes substantially limits him in one or more major life activities (including seeing, hearing, speaking, and performing manual tasks). Court also reject employer's argument that plaintiff is not qualified within the meaning of the ADA because he is a threat to himself and others, finding that the specific incidents of on-the-job hypoglycemia listed in the Complaint do not, in and of themselves, establish that defense.

149. Fraser v. Goodale, 342 F.3d 1032 (9th Cir. 2003)

(discharge of office worker; failure to accommodate) Court reverses lower court to deny summary judgment to employer on issue of whether plaintiff with type 1 diabetes has a disability under ADA. Employee passed out after supervisor would not let employee eat at her desk to raise low blood sugar. She was fired upon complaining about the employer’s lack of accommodation. Court uses individualized inquiry to determine that employee was substantially limited in the major life activity of eating due to intense treatment regimen. Court construes Sutton to require consideration of employee’s actual state – and not the hypothetical effectiveness of her treatment regimen. Court finds that "[s]imply having the means to control an illness does not make controlling the illness easy." Court also rejects the employer's contention that plaintiff would not have been substantially limited had she taken some particular action (in this case carrying food and diabetes supplies with her in a backpack) noting the "injustice" of such a notion where it was the employer that prohibited plaintiff from managing her diabetes in the workplace. . In contrast, court affirms summary judgment that employee is not substantially limited in caring for herself, thinking, and communicating. Court reasons that her intense treatment regimen does not limit these activities, and that three severe insulin reactions over the course of a year that did limit these activities were not frequent enough to be “substantial.” Note: Decision below at # 100.

150. Howard v. DaimlerChrysler Corp., 290 F. Supp. 2d 784 (E.D. Mich. 2003)

(termination of Area Manager at manufacturing plant with diabetes) Summary judgment and motion to dismiss granted to defendant when plaintiff attempted to bring a wrongful-discharge ADA claim (and race and age discrimination claims) after entering into a settlement agreement releasing such claims. Plaintiff claimed

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that he was discriminated against after returning from medical leave he took to care for his diabetes, but the details of this discrimination are not discussed in the opinion. Court relies on basic contract law to find that plaintiff knowingly and voluntarily entered into the settlement agreement, which is therefore enforceable.

151. Smith v. District of Columbia, 295 F. Supp. 2d 53 (D. D.C. 2003) Court denies defendant’s supplemental motion for summary judgment on grounds

that plaintiff’s statement of total and permanent disability on an application for loan cancellation judicially estops her from arguing that she is qualified under the ADA. Court holds that, since the loan cancellation application was denied and plaintiff never received any benefit from her statement of disability, she is not barred from now asserting that she is qualified under the ADA. [note: prior opinion at #143; appellate opinion reversing later grant of summary judgment on procedural grounds at 430 F. 3d 450 (D. C. Cir. 2005)]

152. Acosta v. Northrop Grumman, 2003 U.S. Dist. LEXIS 21653 (E.D. La. 2003)

Pro se plaintiff, who suffered from type 2 diabetes and a number of complications and was terminated from a position as a grinder at a shipyard, brought claims under the ADA as well as various other labor laws. Court grants defendant’s motion to dismiss plaintiff’s “failure to accommodate” claims because plaintiff claimed he was totally disabled on his application for social security benefits, and was in fact adjudicated totally disabled. Plaintiff’s disability benefits application established that he couldn’t meet the essential physical demands of his job as a grinder operating machinery "in spite of his disability” because his treating physician indicated that he was permanently disqualified from performing those duties. For the same reason, plaintiff was not “qualified” under the ADA because he could not perform the essential functions of his job, even with accommodations.

153. Tesh v. United States Postal Serv., 349 F.3d 1270 (10th Cir. 2003)

Court affirms judgment for defendant on discharged employee’s accommodation and termination claims. Plaintiff had some form of diabetes, but his alleged disability was a knee injury, and it is unclear whether this injury was related to diabetes. Plaintiff’s termination claim was rejected because he offered no credible evidence that USPS’ legitimate reason for firing him (dishonest conduct in filling out workers compensation forms) was pretext for discrimination. Plaintiff’s accommodation claims were rejected because (1) defendant provided him with the special type of chair he requested; (2) the employer was in the process of evaluating the employee’s request for closer parking when he was terminated for dishonesty; and (3) plaintiff offered no evidence that he made a supervisor aware of his physician’s recommendation that he only work day shifts (which in any event was connected to hypertension and diabetes, not to his knee injury)..

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154. Branham v. O’Neill, 2003 U.S. Dist. LEXIS 22201 (S.D. Ind. 2003)

Defendant’s motion for summary judgment granted against plaintiff IRS agent who was denied promotion to Special Agent position because he has type 1 diabetes. Court doesn’t reach defendant’s “direct threat” defense because it rules plaintiff is not protected by the Rehabilitation Act. Court finds that plaintiff is not substantially limited in the major life activities of eating and caring for oneself where he successfully manages a burdensome treatment regimen that “nonetheless allows him considerable freedom in his schedule and activities.” Court makes repeated comparisons to Lawson (see #88) and Nawrot (see #109 & #139), and distinguishes the present case based upon this plaintiff’s ability to control his diabetes substantially better than the plaintiffs in those cases. Therefore, while the court acknowledges that this plaintiff’s treatment regimen is just as burdensome as in Lawson and Nawrot, the court nonetheless concludes that this plaintiff isn’t “substantially limited,” and doesn’t receive the same ADA protection. Plaintiff is not regarded as having a disability where defendant’s doctor testified that plaintiff could possibly perform other federal law enforcement positions. [Note: Decision on appeal at #180.]

155. Collado v. UPS, 2003 U.S. Dist. Lexis 27689 (S. D. Fla. 2003)

Following a verdict at trial in plaintiff’s favor, court granted defendant’s motion for judgment as a matter of law. Plaintiff, who has diabetes treated with insulin, worked as a driver until he was removed from his position for failing to meet Department of Transportation (DOT) physical requirements for commercial drivers because he used insulin. He continued to work in other positions for UPS, but sued claiming his removal violated the ADA. The court held that he did not have a disability under the ADA. The court noted that plaintiff failed at trial to identify which major life activities were limited by his diabetes, and only in response to post-trial motions raised limitations on working and eating. Plaintiff had testified that his diabetes did not limit his activities, that he led a normal and active life, and that he was able to drive safely. Plaintiff was not substantially limited in working simply because he was unable to work as a commercial driver, and was not substantially limited in eating because the only limitations he experienced were the need to check his blood glucose levels several times a day and to watch what he ate. The court distinguished Lawson v. CSX Transportation (#88) on the grounds that the plaintiff in Lawson had great difficulty controlling his blood glucose levels and had experienced multiple complications from diabetes. The court also rejected plaintiff’s claim that he was regarded as disabled, because defendant merely perceived him as unable to drive commercial vehicles. [Note: decision on appeal at #188]

156. Parker v. Port Authority of Allegheny County, 90 Fed. Appx. 600 (3d Cir

2004)

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Court affirms summary judgment for defendant employer who terminated plaintiff bus driver with diabetes. After several instances of poor job performance during her first two weeks of work (such as driving the incorrect route and missing stops), plaintiff complained that she did not feel well on account of her diabetes and went home. Defendant requested that plaintiff produce a physician’s approval in order to return to work. When plaintiff failed to do so, she was terminated on account of poor job performance and excessive absenteeism. Plaintiff conceded that her diabetes was controlled and did not limit a major life activity and therefore did not have an actual disability, but instead claimed the defendant regarded her as disabled in the major life activity of working. The court rejected her evidence that she was regarded as disabled, which consisted of one statement by an HR employee that she couldn’t handle the stress of the job and the fact that defendant required her to provide medical documentation before she could return to work; these facts proved, at most, that defendant perceived her as possibly incapable of holding a particular job.

157. U.S. v. Miss. Dep’t of Pub. Safety, 309 F. Supp. 2d 837 (S.D. Miss. 2004) [see prior opinion at #135 above]

Court denies summary judgment for defendant employer regarding both failure to accommodate and wrongful discharge claims. Plaintiff, who had insulin-dependent diabetes, was a cadet at the state training school for highway patrol officers. Plaintiff claimed that on several occasions during the first few days of training he was denied access to food he said he needed, and was instead supplied with alternative small snacks. Defendant later discharged plaintiff after plaintiff instigated an altercation with a superior. Plaintiff claims that this altercation resulted from low blood sugar due to defendant’s failure to accommodate his need for food. The court held that issues of fact existed as to whether plaintiff made a sufficient request for an accommodation by asking several superiors for additional food, and as to whether the response of the superiors in providing small snacks was an adequate accommodation. Court also held that, while employers usually do not violate the ADA by discharging an employee for misconduct related to his disability, this case is different because there is a material issue as to whether plaintiff’s disability-related misconduct occurred because of defendant’s failure to accommodate.

158. Pineda v. UPS, 360 F. 3d 483 (5th Cir. 2004)

Plaintiff employee had filed a disability discrimination charge against defendant for delaying plaintiff’s return to work from a ten-month disability leave related to his diabetes. During his leave, plaintiff testified against defendant in another discrimination suit. After his return to work he was terminated, allegedly for threatening co-workers. Court reverses trial court judgment in favor of plaintiff and grants summary judgment for defendant employer. Court held that, under Texas law, the employee must show that, "but for" the alleged discrimination, he

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would not have been fired (instead of showing merely that discrimination was a “motivating factor” in his termination). In this case, plaintiff did not carry his burden because he failed to rebut defendant’s evidence that he was terminated due to allegations that the plaintiff made threats against his co-workers. [This opinion supersedes an earlier panel opinion which had affirmed the trial court’s judgment and which can be found at 353 F.3d 414].

159. Holopirek v. Kennedy & Coe, 303 F. Supp. 2d 1223 (D. Kan. 2004) Court denied summary judgment for employer on wrongful termination claim of employee responsible for sales and marketing at accounting firm. Plaintiff was fired less than two weeks after disclosing to her supervisor that she had diabetes and needed some time off for medical reasons. Defendant claimed that the termination was for business reasons (the employee’s skills were no longer needed and her remote work location was no longer working). However, the court held that plaintiff had presented sufficient evidence to suggest that this reason was pretext for discrimination. Defendant’s account of when and how the termination decision was made was contradicted by the account of one of the managers involved in the termination decision, and there was no contemporaneous evidence that the termination decision was made prior to defendant learning of plaintiff’s diabetes. Defendant also claimed that plaintiff was not a person with a disability. Plaintiff did not claim that she was disabled but rather claimed that defendant regarded her as disabled in working. Plaintiff survived summary judgment on this claim based on the timing of the termination decision and a comment made by her supervisor (“You don’t have to tell me what diabetes is like, my dad has it.”) that suggested that defendant might have feared the effect of diabetes on her job performance.

160. Arrington v. Southwestern Bell Telephone Co., 93 Fed. Appx. 593 (5th Cir.

2004)

Court affirmed judgment for defendant employer regarding charges of wrongful termination and retaliation against plaintiff employee because of his diabetes. Plaintiff was diagnosed with diabetes in 1986 and over the next 12 years had a history of low productivity and customer complaints about his attitude, appearance and performance. He was terminated in 1996 but returned to work pursuant to a mediation agreement with the EEOC, and was terminated a second time in 1998. Court held that plaintiff failed to prove that his diabetes substantially limited any major life activity. He did not specifically name any activity that was limited but relied on his diagnosis of diabetes alone and presented no evidence of how his diabetes affected him personally. Even assuming that plaintiff claimed he was disabled in the activity of working, plaintiff’s evidence at best showed that he was incapable of performing certain specific jobs. In addition, plaintiff’s retaliation claim failed because plaintiff did not present any evidence contradicting the defendant’s well-documented assertion

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that his termination was motivated by poor job performance. His subjective belief that he was treated less favorably than other employees and that the complaints against him were fabricated was insufficient.

161. Morales-Pabon v. Morovis Community Health Ctr., 310 F. Supp. 2d 411 (D.

P.R. 2004)

Court granted 12(b)(6) dismissal to defendant employer re wrongful discharge of plaintiff employee with type 2 diabetes. Defendant had not raised the issue of whether plaintiff was substantially limited in a major life activity, but the court raised it sua sponte and found that plaintiff was not limited. Court held that (1) plaintiff failed to identify any major life activities that might be limited by his diabetes and depression; (2) the diabetic symptoms the plaintiff did plead (constant thirst, urination, foot pain, etc.) do not rise to the level of a substantial limitation; and (3) plaintiff’s claim in his pleadings that he was qualified and his diabetes did not affect his ability to work established that he was not disabled.

162. McCoy v. Orleans Parish Sch. Bd., 2004 U.S. Dist. LEXIS 6629 (E.D. La. 2004)

Court denied summary judgment for plaintiff (school principal with diabetes). Plaintiff requested medical leave to treat her diabetes and hypertension based on her doctor’s orders. Prior to her request for leave, plaintiff had been placed on an “intensive assistance program” by her supervisor because of her excessive absenteeism and her school’s very low performance. While she was on leave, she was removed from her position and transferred to another school in a less demanding position. Plaintiff alleged that defendant employer violated the Family & Medical Leave Act by failing to reinstate her to the same (or similar) position she held prior to taking the leave. Court held summary judgment inappropriate because defendant pled sufficient facts to create a material issue as to whether plaintiff was demoted for poor job performance.

163. Brenneman v. Medcentral Health Sys., 366 F. 3d 412 (6th Cir. 2004)

Court affirmed summary judgment for defendant employer. Plaintiff employee with type 1 diabetes claimed he was wrongfully terminated after missing work due to diabetes-related health complications. Plaintiff, who had a history of attendance problems for various injuries and illnesses, missed work due to a hypoglycemic episode, and this absence triggered termination under the employer’s progressive discipline policy. Plaintiff did not inform his supervisors that the absence was related to diabetes until after the termination. Court rejected the ADA claim because plaintiff never informed defendant that his attendance problems were related to diabetes and, even if he had, plaintiff’s excessive absenteeism (mostly unrelated to diabetes) was employer’s legitimate, nondiscriminatory reason for terminating plaintiff and made it impossible for him to meet the basic requirements for continued employment. Furthermore, court held that defendant did not violate the Family & Medical Leave Act because

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plaintiff did not provide adequate notice of his need to utilize FMLA leave within a reasonable time after taking the leave.

164. Mohr v. Hoover Co., 97 Fed. Appx. 620 (6th Cir. 2004)

Court affirmed summary judgment for defendant on claims of plaintiff employee with type 2 diabetes who drove a forklift in defendant’s warehouse. Defendant conducted a medical review of all individuals with diabetes who were permitted to drive forklifts. The company doctor determined that plaintiff should not drive a forklift because she had had several hypoglycemic episodes at work, and had a history of hypoglycemic episodes off the job, including passing out and becoming lost while driving home. Plaintiff applied for other available jobs and was transferred to a new position. Plaintiff conceded that she could perform her daily activities in spite of her diabetes and only argued that she was disabled in the major life activity of working. Court held that plaintiff was not limited in working because she presented no evidence that her diabetes prevented her from performing more than one job (operating a forklift), and such a narrow restriction doesn’t amount to a “substantial limitation” on working. The appeals court did not address the district court’s finding that plaintiff was not qualified for her old job, and also affirmed dismissal of plaintiff’s claims that she suffered gender discrimination and suffered retaliation for OSHA complaints.

165. Sabbrese v. Lowe's Home Ctrs., Inc., 320 F. Supp. 2d 311 (W.D. Pa. 2004) Court denied defendant’s motion for summary judgment on FMLA interference

and retaliation claims by plaintiff with type 2 diabetes. Defendant knew of plaintiff’s diabetes and generally permitted him to take breaks when needed to eat or check his blood sugar level. However, when plaintiff left for lunch without following proper procedures because he had been delayed in taking his lunch break and his blood sugar was very low, he was disciplined and soon after terminated. Plaintiff brought retaliation claims under the FMLA, ADA and state law based on the written reprimand and the termination, and also a claim for interference with FMLA leave. The court denied the summary judgment motion on everything except the retaliation claim based on the written reprimand (holding that this reprimand was not an adverse employment action). The court rejected defendant's argument that plaintiff's lunch break could not count as intermittent FMLA leave because all employees get lunch breaks; the court held that a lunch break for a person with diabetes who needs to eat because of low blood sugar can qualify as intermittent FMLA leave. Furthermore, the court held that a plaintiff stated a claim for FMLA interference when he was given a disciplinary warning for taking his lunch break at an unscheduled time to address a low-blood-sugar emergency because the warning “chilled” the plaintiff from exercising his FMLA rights in the future. It also held that there was enough evidence of pretext for a jury question on whether he was terminated in retaliation for taking FMLA leave, and that compensatory and punitive damages and jury trials are not available for retaliation claims under the ADA.

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166. Claveria v. Field Museum of Natural History, 2004 U.S. Dist. LEXIS

10856 (N.D. Ill. 2004) Summary judgment granted to defendant employer where employee with type 2

diabetes alleged wrongful termination under the ADA. Plaintiff applied for a transfer to another position after his job as a museum security guard was eliminated but was told there were no available positions for which he qualified. (Later, after his work restrictions were lifted, he applied for and received another position at the museum; the lawsuit concerns the interim period.) Plaintiff sued, alleging failure to transfer in violation of the ADEA and ADA. He alleged that the employer regarded him as substantially limited in standing and getting along with others. The court held he had not met his burden of proof as to either life activity. At most, he alleged that he was perceived as unable to stand for long periods of up to 8 hours a day because of his diabetes, and was perceived as being limited in being able to get along with others because of mood swings caused by fluctuations in blood sugar levels. The Court noted that the “substantial limitation” test, after Toyota Motor Manufacturing Inc. v. Williams, 534 U.S. 184 (2002), focuses on limitations on the ability to perform a major life activity in daily life, not in a particular job. Here, the limitations the employer perceived related only to performing the specific job of security guard (inability to stand for 8 hours and to greet members of the public cordially in a museum setting). These allegations were not sufficient to establish that plaintiff was perceived as disabled. Plaintiff’s ADEA claims were also dismissed, as were the claims of a second plaintiff who did not have diabetes.

167. Hamburger v. CAE/Simuflite Training Int'l, Inc., 2004 U.S. Dist. LEXIS

11215 (N.D. Tex. 2004) Summary judgment granted to defendant employer on plaintiff’s wrongful

termination claim under the ADA. Plaintiff has type 2 diabetes that he controlled with diet and exercise (no oral medications or insulin). When cutbacks in defendant’s business became necessary, plaintiff was offered a transfer to another position but was required to make a decision on the spot; when he refused because he needed to talk to his doctor about his work restrictions, he was terminated. Plaintiff claimed he was limited in working and performing manual tasks, and the only work restriction he had was that he could not work an erratic schedule. The court found he was not disabled because he had not presented evidence that he could not do more than one job, and wasn't disabled in performing manual tasks under Toyota Motor Manufacturing Inc. v. Williams, 534 U.S. 184 (2002). Furthermore, even if the plaintiff was disabled, he presented no evidence to contradict the employers claim that he was terminated for failure to immediately accept the new position, and not because he had diabetes.

168. Bearley v. Friendly’s Ice Cream Corp., 322 F. Supp. 2d 563 (M.D. Pa. 2004)

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Court granted defendant’s motion for summary judgment on claims under ADA and FMLA by terminated employee. Plaintiff, who has diabetes and Charcot joint disease, worked as a bookkeeper in one of defendant’s restaurants. While she was on FMLA leave for surgery to have a toe removed because of her diabetes, many of her bookkeeping functions were automated and, as a result, fewer bookkeeper hours were needed. When plaintiff returned from leave she was offered a full time schedule that included some bookkeeping hours and some hours as a food preparer and hostess. She refused the offered position and was terminated, and later brought suit alleging ADA and FMLA violations. On the ADA claim, the court held that plaintiff was substantially limited in walking and standing because she could not walk more than 100 feet without resting, and could not stand for more than 60 seconds without resting. However, her failure to accommodate claim failed because she never requested any accommodations and therefore did not participate in the interactive process. Her ADA termination and FMLA claims failed because her previous position was eliminated for reasons unrelated to her disability (a previously planned automation of bookkeeping functions), and her bookkeeping hours would have been reduced even if she had not taken leave. The court held evidence that not all bookkeeping positions were eliminated at the same time, and some remained even after plaintiff returned from leave, was not sufficient to show defendant’s reason for not reinstating plaintiff was pretextual.

169. Bonner v. The Home Depot, 323 F. Supp. 2d 1250 (S.D. Ala. 2004) Court granted summary judgment to defendant on an ADA termination claim

brought by plaintiff who worked as a salesman at Home Depot. Plaintiff claimed that his diabetes limited his ability to stand for long periods of time, and could no longer do the essential functions of his job (which the court held included being able to stand for long periods of time). He claimed he was substantially limited in working, and the court found that he was not, since all he couldn't do was to stand for hours at a time without having any opportunity to sit down on a regular basis. The opinion also said that his diabetes limited his ability to stand, but it does not address standing or walking as major life activities. The court held that his diabetes was not a per se disability, and that plaintiff was not substantially limited in working because he had applied for car salesman positions after being terminated. Since plaintiff was qualified to sell cars, his diabetes “do[es] not prevent him from working any salesperson's job, [but] just the salesperson's job at a large volume warehouse-style environment where the employee must be on his feet for long periods of time.” The court held that such a specific limitation was not “substantial” under the ADA.

170. Burrell v. Cummins Great Plains, Inc., 324 F. Supp. 2d 1000 (S.D. Iowa

2004) Court granted summary judgment for defendant on ADA wrongful-termination

claim. Plaintiff, who has type 1 diabetes, was terminated after having a number

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of low blood glucose episodes at work that required help from others (including several car accidents). He claimed that the need to take insulin and monitor his blood sugar were substantially limiting, but did not present any evidence about how his activities were actually limited (or even clearly state what activities were limited). Instead, he argued that he should be considered disabled because plaintiffs in cases like Lawson (#88) and Nawrot (#109) were found to be disabled. The court disagreed because plaintiffs in those cases had presented significant evidence of their limitations. The court held that “the limitations [plaintiff] is currently afflicted with - insulin dependence, constant blood sugars monitoring, and erratic changes during [low blood sugar] episodes - are certainly inconvenient and personally troublesome, but they do not rise to the level of a substantial limitation of a major life activity.” The court also held that plaintiff was not limited by the possible future complications of his diabetes because he was not currently suffering those complications. Finally, the court held that plaintiff was not regarded as disabled, but was merely regarded as failing to control a controllable condition. The court relied on evidence that plaintiff had failed to eat properly and test his sugars regularly on the job. He argued that he was substantially limited in his ability to work, but the evidence showed that he was capable of working in a broad range of jobs.

171. Chmiel v. Opto Technology, Inc., 2004 U.S. Dist. Lexis 13435 (N.D. Ill. 2004)

Court granted summary judgment for defendant on ADA termination claim. Plaintiff had diabetes, cataracts, a brain tumor, and other impairments. Plaintiff worked as a quality assurance manager and was allegedly fired for failing to meet performance expectations, and sued under the ADEA and the ADA. He conceded that none of his impairments actually substantially limited him, and instead argued that he was regarded as disabled. The court found no evidence that defendant knew of plaintiff’s diabetes, and so could not have regarded plaintiff as disabled on that basis. Also, plaintiff was not regarded as disabled by defendant simply because defendant knew he had been denied long term disability benefits or because defendant was concerned about insurance costs. Plaintiff’s ADEA claims were also rejected.

172. Price v. Washington Hospital Center, 321 F. Supp. 2d 38 (D. D.C. 2004)

Court denied defendant’s motion for summary judgment as to plaintiff’s disability discrimination claim. Plaintiff has hypertension, diabetes and end stage renal failure. After several hospitalizations, she requested and was granted medical leave to lower her blood pressure and begin dialysis. While she was on leave, her position was eliminated as part of a reduction in force, and she was terminated. Her lawsuit alleged violations of District of Columbia disability discrimination and medical leave laws, as well as the FMLA. The court held that she had raised a triable issue of fact as to whether she was disabled based on her high blood pressure, her need for dialysis on a regular basis, and her hospitalizations. The court also held she had raised a triable issue as to whether

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the elimination of her position as part of a reduction in force was pretext for disability discrimination, based on negative comments her supervisor had made about her need for leave as well as the temporal proximity of the decision to eliminate her position to her request for leave. The court granted summary judgment as to her medical leave claims because she had failed to properly allege a violation of either the FMLA or D.C. law.

173. Salim v. MGM Grand Detroit, 106 Fed. Appx. 454 (6th Cir. 2004) Court upheld summary judgment for employer that terminated employee with

insulin-treated diabetes who worked as a blackjack dealer at defendant’s casino. Plaintiff used diet, exercise and insulin to manage her diabetes. Although plaintiff did not have any difficulties with her diabetes outside of work, when she was assigned to work the late shift (8 p.m. to 4 a.m.) she had several hypoglycemic episodes on the job. Plaintiff made several requests to change shifts, but defendant denied these requests and eventually terminated her. The district court granted summary judgment, and the appeals court affirmed, holding that plaintiff had not shown she was substantially limited in any major life activities. She had not presented any evidence of how her condition limited her ability to perform housework or to walk, and she was not limited in her ability to work or think because she had never experienced problems outside of the workplace. She also claimed that she was substantially limited in her ability to care for herself, but the court rejected this argument and her reliance on Nawrot (#109, above). The court distinguished Nawrot on its facts, noting that this plaintiff never alleged that she had to check her blood glucose, had no long term complications, and showed no likelihood of severe hypoglycemia so long as she was not working at night.

174. Raffaele v. City of New York, 2004 U.S. Dist. LEXIS 17786 (E.D.N.Y. 2004) Court granted summary judgment for employer on claim that it failed to

accommodate plaintiff, a fire inspector for the city. Plaintiff has type 2 diabetes, treated with medications but not insulin, as well as other medical conditions. He had difficulty walking for long distances and requested several accommodations to minimize walking, including a transfer to another location, a parking space, and use of a department vehicle. Court holds that plaintiff is not substantially limited in the activities of walking and breathing, because he was only unable to walk for extended distances and because his breathing capacity was within normal limits. The court also held that, even if plaintiff were disabled, his accommodation requests were unreasonable and he failed to demonstrate how such accommodations were related to his impairments.

175. Rodriguez v. ConAgra Grocery Products, 2004 U.S. Dist. LEXIS 18812 (N.D.

Tex. 2004) Court granted summary judgment for employer who failed to hire an applicant

with diabetes. Job offer to plaintiff was withdrawn after the doctor conducting a

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preemployment physical determined, based on a urine glucose test and the plaintiff’s inability to remember what medications he was taking, that the plaintiff’s diabetes was “uncontrolled”. Court first held that plaintiff had raised a genuine issue of fact as to whether defendant regarded him as substantially limited in the ability to work because defendant’s HR manager appeared to believe he was unable to work at any jobs in the factory. However, the court held that plaintiff has no claim under Texas state anti-discrimination law (similar to the ADA) if he fails to control an otherwise controllable condition, and defendant had presented evidence that plaintiff had failed to control his condition. Plaintiff’s evidence that he was controlling his diabetes was rejected because the doctors who so testified had not viewed any test results from the time period in question (because no tests were done). Court held that defendant did not refuse to hire plaintiff because he had diabetes, but rather because it suspected he was not controlling his diabetes. The court notes that an employer’s belief that an applicant was not controlling an otherwise controllable disease, even if mistaken, cannot form the basis for a “regarded as disabled” claim. [Note: appellate opinion at #200]

176. Miller v. Terramite Corp., 114 Fed. Appx. 536 (4th Cir. 2004)

Court affirms grant of summary judgment to employer on plaintiff’s discrimination claims. Plaintiff has diabetes, depression and a knee injury, and was terminated by defendant during a reduction in force. He raised claims of age and disability discrimination under West Virginia state law; the case was removed to federal court because he also raised an ERISA claim. The trial court granted summary judgment on the disability discrimination claim, holding that plaintiff had failed to introduce any evidence that either his diabetes or his depression substantially limited a major life activity. The appeals court affirmed without further analysis. Plaintiff’s other claims were also dismissed.

177. Mikruk v. U.S. Postal Service, 115 Fed. Appx. 580 (3rd Cir. 2004) Court affirms summary judgment for defendant on former employee’s

discrimination claim. The employee, who has type 1 diabetes which the opinion describes as “brittle”, had worked for the post office but refused to return to work after he his work schedule was changed. He sued the postal service for failing to accommodate his disability. In the district court, plaintiff claimed only that he was substantially limited in the major life activity of working. The court granted summary judgment because the plaintiff failed to present any evidence to support this claim. On appeal, plaintiff did not challenge the court’s decision that he was not substantially limited in working, but instead argued that he was substantially limited in the major life activity of eating. The court of appeals refused to address this issue because it was not presented to the lower court, and affirmed the judgment.

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178. Vore v. Colonial Manor Nursing Ctr., 2004 U.S. Dist. LEXIS 20888 (N.D. Tex 2004)

Court denied summary judgment to employer on certain of plaintiff’s ADA claims. Plaintiff worked for defendant as a nurse and has insulin-dependent diabetes which resulted in numerous complications, including a toe ulcer. For a time, defendant accommodated plaintiff’s need for time off and for primarily administrative duties, but later his supervisors began requiring him to work “floor” duty with increasing frequency, despite knowing this would aggravate his toe ulcer and even after he presented a doctor’s letter requesting that he perform his duties in a wheelchair. Eventually plaintiff’s toe had to be surgically amputated, and he was placed on medical leave and later terminated. Plaintiff claimed that defendant failed to accommodate him, terminated him, and harassed him because of his disability, and denied him benefits to which he was entitled under ERISA. The court rejected defendant’s argument that plaintiff was not entitled to accommodation because he had failed to provide medical proof of the need for his requested accommodation. The court noted that defendant had failed to engage in the interactive process and held that plaintiff need not provide medical documentation to begin that process where the employer is aware of the nature of the employee’s disability and the need for some type of accommodation is “obvious”. Summary judgment was therefore denied as to the accommodation claim, and also as to the harassment claim, which defendant failed to address in its motion. However, summary judgment was granted as to plaintiff’s termination claim. Because plaintiff applied for and received social security disability benefits after his toe was amputated, he was totally disabled at that point and not able to perform the job. Also, summary judgment was granted as to the ERISA claim.

179. Compton v. HPI Acquisitions Co., 2004 U.S. Dist. Lexis 27701 (E.D. Tenn.

2004) Court denied employer’s motion for summary judgment as to employee’s ADA

and FMLA claims. Plaintiff has insulin-dependent diabetes along with a number of complications. After a brief hospitalization to treat unspecified complications, plaintiff inquired about the possibility of going on long term disability, but ultimately decided to keep working. Approximately two weeks later, just after he had submitted a request for a short-term medical leave, he was terminated after the employer’s investigation of alleged misconduct. He filed suit claiming discharge in violation of the ADA and FMLA, as well as ADEA and state disability benefits claims. The court held that plaintiff’s doctor’s medical opinion that plaintiff could perform the essential functions of the job was sufficient to create a triable issue of fact as to that issue, despite plaintiff’s own deposition testimony and his application for SSI benefits. Plaintiff also was able to raise a triable issue of fact as to whether defendant’s asserted reasons for his termination were pretexts for discrimination, based on the close temporal proximity between the termination and his hospitalization and request for medical leave, and based

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on his submission of evidence as to whether the allegations against him were false. The court denied summary judgment on the FMLA claim because there was an issue of fact as to whether plaintiff was terminated before or after he requested leave. The court rejected plaintiff’s ADEA and state disability benefits claims.

180. Branham v. Snow, 392 F. 3d 896 (7th Cir. 2004)

Court reverses summary judgment granted to defendant employer (the IRS) regarding Rehabilitation Act claim for failure to promote plaintiff, who has type 1 diabetes, from an office position to a Special Agent field position. The trial court had ruled that plaintiff was not substantially limited in any major life activity because his diabetes was well controlled and he was able to take care of himself. The appeals court held that plaintiff had established a triable issue of fact as to whether he was substantially limited in the major life activity of eating because, even though plaintiff controlled his diabetes well and had not experienced severe hypoglycemia or hyperglycemia, a jury could conclude that the mitigating measure used by the plaintiff to control his diabetes (insulin) caused side effects that substantially limits the activity of eating. The foods, amount, and times at which plaintiff could eat were largely dictated by his diabetes and his current blood glucose readings, and plaintiff was required to adjust his diet to take into account his activities, stress level, illness, and other factors. However, the court did agree with defendant that plaintiff was not regarded as disabled because there was no evidence that defendant did anything more than regard him as unable to do a particular job. The court also rejected defendant’s argument that plaintiff was not otherwise qualified for the position because he would pose a safety risk. The court held that defendant bore the burden of proof on its claim that plaintiff would pose a safety risk, and that defendant had not met that burden. The court examined the four factors which are part of the direct threat analysis, and concluded that plaintiff raised a material issue of fact by presenting medical testimony that he could work long and irregular hours, respond to emergencies, and perform the other essential functions of the position in spite of his diabetes. .Plaintiff’s medical testimony suggested that he had never suffered severe hypoglycemia, his intensive treatment regimen minimized the risk of its occurrence, and that his quantified risk of suffering severe hypoglycemia was very low (2% per year). [Note: prior decision at #154.]

181. Waters v. Genesis Health Ventures, 2004 U.S. Dist. LEXIS 25604 (E.D. Pa.

2004) Court granted summary judgment to defendant on plaintiff’s claim for disability discrimination. Plaintiff was terminated from her position as a nurse and sued, claiming age, race and disability discrimination. In her complaint, she asserted that her disability was chronic fatigue syndrome, which limited her ability to work. However, in responding to defendant’s motion for summary judgment, plaintiff conceded that her chronic fatigue syndrome was not disabling and

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alleged for the first time that her claim for discrimination was based on Charcot’s foot disease and diabetic neuropathy, which limited her ability to walk. The court held that, despite the liberal rules of notice pleading, plaintiffs in disability discrimination actions are required to identify the nature of their disabilities. The court held that here, where defendant did not have notice that plaintiff was basing her disability claim on Charcot’s foot disease and neuropathy (even though these conditions were mentioned in plaintiff’s medical reports) and had focused on chronic fatigue syndrome in its motion for summary judgment, it would be unfair to allow plaintiff to change the nature of her claim so late in the proceedings. Summary judgment was denied as to plaintiff’s race discrimination and retaliation claims.

182. Williams v. Pinkerton’s Inc., 2005 U.S. Dist. LEXIS 1066 (D. Minn. 2005)

Court granted summary judgment to employer on plaintiff’s claim of disability discrimination under the Minnesota Human Rights Act. Plaintiff worked as an account supervisor for a security company and was terminated when his supervisors became aware that he was tolerating and encouraging payroll practices that violated company policy and were possibly fraudulent. Defendant did not argue that plaintiff was not disabled, but argued that he was not terminated because of his diabetes. Plaintiff attempted to argue that because defendant knew of his diabetes and because he had been told by a co-worker that a supervisor was “out to get his job”, that he could establish a causal connection between his termination and his diabetes, but the court disagreed. The court held that plaintiff had produced no evidence that company officials were motivated to terminate him by his diabetes other than his own speculation. The court also rejected plaintiff’s ERISA claim.

183. Cain v. Potter, 2005 U.S. Dist. LEXIS 4091 (W.D. Tex. 2005)

Court granted summary judgment to employer, finding that employee did not have a disability. Pro se plaintiff worked for the Postal Service and sued after he was prevented from working temporarily on several occasions because of medical restrictions. Plaintiff injured his foot (it is not clear whether this injury was related to diabetes) and was placed on standing, walking and lifting restrictions by his doctor. The court found that these restrictions (no standing or walking for more than one hour, no walking on un uneven surfaces, no lifting more than 30 pounds) were not substantially limiting. Plaintiff had stated at his deposition that these medical restrictions accurately reflected his limitations at the time in question, so the court rejected his claim that he was in fact more severely restricted. The court also held plaintiff’s diabetes was not a disability; although diabetes may have become disabling later, plaintiff had admitted that it did not cause any significant problems at the time in question. The court also rejected plaintiff’s claims to be substantially limited in caring for himself and in mental activities because plaintiff introduced no evidence to support these claims, and rejected plaintiff’s retaliation claim.

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184. Wilson v. MVM, Inc., 2005 U.S. Dist. LEXIS 9849 (E.D. Pa. 2005)

Court grants summary judgment in favor of contractor which employed plaintiffs to provide security at federal courthouse under the direction of the U.S. Marshals Service. Three plaintiffs who were working as security officers at the courthouse, one of whom has diabetes (type and insulin usage unknown) and cardiovascular disease, filed suit after they were medically disqualified by doctors working for the Marshals Service and, as a result, terminated by the contractor. The plaintiff with diabetes was disqualified because high blood glucose values and A1C results led the doctor to describe his diabetes as “uncontrolled.” According to the court, his diabetes was controlled with medication and thus under Sutton v. United Air Lines could not constitute an actual disability. The court rejected plaintiff’s regarded as claim because there was no evidence that either the contractor or the Marshals Service regarded him as anything more than unable to perform a particular job. The court also rejected plaintiff’s claims that the Marshals Service and the federal government were liable for the contractor’s actions in terminating the plaintiffs. [Note: decision on appeal at #241].

185. Walz v. Marquis Corp., 2005 U.S. Dist. Lexis 43613 (D. Or. 2005)

Court granted summary judgment to defendant on plaintiff’s ADA claim. Plaintiff, who has type 2 diabetes and uses insulin, worked in defendant’s manufacturing plant. He had a number of hypoglycemic episodes while on the job, resulting in disorientation and requiring assistance in treatment, and while driving off the job he had an episode that caused a head-on collision. The employer moved him to several different positions to minimize his exposure to power tools and dangerous situations, and ultimately terminated him. Plaintiff sued claiming violations of the ADA and state law; plaintiff did not claim to have an actual disability but only alleged that he had a record of a disability and was regarded as having a disability. The court held that plaintiff’s diagnosis of diabetes and records kept about his hypoglycemia did not constitute a record of a disability. The court then held that plaintiff was not regarded as disabled because the employer did not hold any incorrect perceptions of plaintiff’s diabetes; it merely believed, as he did, that his diabetes could be controlled sufficiently to prevent hypoglycemia and that he was not doing so. The court also rejected arguments that plaintiff was regarded as substantially limited in working because defendant would not permit him to do any jobs in its manufacturing plant..

186. Dorsey v. City of Chicago, 2005 U.S. Dist. LEXIS 11348 (N.D. Ill. 2005) Court granted summary judgment to defendant city on ADA termination claim. Plaintiff has diabetes which caused her to develop cardiovascular disease. She worked as an administrative clerk for the city and received excellent performance evaluations until she suffered a heart attack followed by several embolic strokes which caused significant short term memory loss. She attempted to return to

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work, but over the next two years her performance declined substantially. The city attempted to reassign her to a position as a court file clerk, but she was unable to physically perform the duties of that position. The court found that she could not make out a prima facie case of discrimination because she was not qualified to perform the essential functions of the administrative clerk position. Her performance problems documented by the city (inaccuracies in data entry, inability to use computer systems despite extensive training, etc) and her doctor’s opinion demonstrated that she could not perform the job’s duties. By her own admission, she could not perform the court file clerk position because of its physical requirements. She suggested accommodations that would have allowed her to perform both positions, but the court concluded that it was mere speculation that these accommodations would be effective and that they were unreasonable as they would require reassignment of essential job functions.

187. Darnell v. Thermafiber, Inc., 417 F. 3d 657 (7th Cir. 2005)

Court affirmed summary judgment to defendant against plaintiff who was not hired for a laborer position in defendant’s manufacturing plant because of his diabetes. Defendant withdrew conditional job offer after doctor who conducted pre-employment medical examination determined that plaintiff’s diabetes was “uncontrolled” based on the results of a urine glucose test and patient’s failure to seek regular medical treatment. District court granted summary judgment, holding that defendant had reasonably relied on doctor’s medical opinion and plaintiff posed a direct threat, and appeals court affirmed. Court held that doctor’s opinion was reasonable based on uncontroverted expert testimony that plaintiff’s diabetes was “uncontrolled” and that plaintiff did not receive regular medical treatment. Court also held that plaintiff’s “uncontrolled” diabetes rendered him a direct threat, based on plaintiff’s failure to rebut defendant’s expert medical evidence that fluctuations in blood glucose levels could cause short-term complications such as confusion and unconsciousness and based on the heat and dangerous conditions present at defendant’s manufacturing plant.

188. Collado v. UPS., 419 F. 3d 1143 (11th Cir. 2005)

Court affirmed judgment entered for defendant on post-trial motion overturning jury verdict in favor of plaintiff. .Plaintiff was employed as a full-time delivery driver at UPS when he was diagnosed with insulin-dependent diabetes. He continued to drive for several years while on insulin because he was issued a DOT certification in error, but when UPS discovered this error he was no longer allowed to drive larger, DOT-regulated vehicles and was placed in various other positions with UPS that required some non-driving work and some work driving smaller, non-regulated vehicles. Ultimately he was required to qualify under the UPS diabetes protocol and, once he did, he was again permitted to drive non-regulated vehicles as part of his job. He filed an EEOC charge and later sued, alleging that UPS discriminated against him by denying him driving work and retaliated against him by requiring him to qualify under the diabetes protocol.

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After the trial court denied defendant’s motion for summary judgment and its motion for a directed verdict during trial, the jury returned a verdict for plaintiff. The court, on defendant’s post-trial motion, overturned the verdict, holding that plaintiff had failed to introduce adequate evidence either to show that he had a disability or that defendant’s actions were retaliatory. The appeals court affirmed the judgment of the trial court on both counts. First, the court held that the issue of whether plaintiff had a disability could properly be raised on a post-trial motion, even though it was an element of plaintiff’s prima facie case and had already been the subject of an unsuccessful motion during trial. Then the court held that plaintiff’s evidence was insufficient to show he had a disability. Plaintiff relied on his own testimony that he had to watch what he ate and avoid many sugars, and did not rely on medical testimony. The court held that these allegations were similar to the kinds of dietary restrictions that many people faced and did not show that plaintiff was substantially limited in his ability to eat. Finally, the court held that there was no evidence that UPS’ actions in requiring plaintiff to qualify under the protocol were retaliatory, as they were motivated by legitimate safety concerns.

189. Shultz v. Potter., 142 Fed. Appx. 598 (3rd Cir. 2005) Court affirmed summary judgment on plaintiff’s claim of disability discrimination against the U.S. Postal Service. Plaintiff asserted that her diabetes substantially limited her ability to eat, but the court held, with little analysis, that she had not introduced sufficient evidence to raise a genuine issue of fact on this issue. The court held that her allegations that her diabetes required her to watch what she ate, consume sugar when her blood glucose levels were low, and take insulin when those levels were high were insufficient to survive summary judgment. The court noted that she had only been hospitalized for diabetes three times in fifteen years. She was also not a qualified individual with a disability because she had refused the employer’s reasonable accommodation of allowing her to test her blood glucose in alternative locations. The court also rejected plaintiff’s retaliation claim, holding that the two actions she complained of were not retaliatory because one occurred before her charge of discrimination and the other was based on documented misconduct. .

190. Equal Employment Opportunity Comm’n and Keane v. Sears, Roebuck & Co.,

417 F. 3d 789 (7th Cir. 2005)

Court reverses grant of summary judgment to employer on claim that it failed to accommodate employee, who has type 2 diabetes and peripheral neuropathy. After remand from appellate court in earlier case (see #77), district court had granted summary judgment a second time, holding that Toyota Motor Manufacturing v. Williams, 534 U.S. 184 (2002), required that plaintiff meet a higher standard to show that she had a disability than that used by the appellate court in its earlier opinion. The appellate court held that Toyota had not in fact altered the statutorily mandated inquiry into disability, nor did it require plaintiffs

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to meet a higher standard than had been in effect previously. The court also reversed as to the other alternative bases on which the district court had granted summary judgment. Sears had not reasonably accommodated plaintiff’s disability because the accommodations it attempted to rely on were either ineffective in allowing her to access the workplace or were not consistently provided to her. Sears was sufficiently aware of plaintiff’s disability to trigger its obligation to engage in the interactive process even though plaintiff had not provided all details about her medical condition at the beginning of the process, and plaintiff did not cause a breakdown in the interactive process by quitting because evidence suggested that Sears’ actions had caused the process to break down before that point, causing plaintiff to resign. [Note: Prior 7th Circuit decision at #77.]

191. Preble v. Transport Displays, Inc., 2005 U.S. Dist. Lexis 18701 (D. Mass. 2005)

Court granted employer summary judgment on employee’s disability discrimination claim because employee failed to show that his diabetes limited a major life activity. Plaintiff, who has diabetes and a heart condition, was allegedly dismissed because of repeated infractions while driving a company vehicle, and brought suit alleging discrimination. The court held that although he alleged that his diabetes required him to try to avoid certain foods and to check his blood glucose daily, plaintiff had not alleged that his diabetes limited any major life activity, and the facts he had alleged did not support an inference that any major life activity was limited. The court also rejected plaintiff’s age discrimination and retaliation claims.

192. Nagel v. Sykes Enterprises, 383 F. Supp. 2d 1180 (D. N.D. 2005)

Court denied in part employer’s summary judgment motion on claim that employer failed to reasonably accommodate employee’s disability. Plaintiff, who is legally blind due to diabetes, requested various accommodations in her job as a customer service representative, including computer software and hardware, a reader, and reassignment to other positions, and filed suit when her requests were denied and she was terminated. The court held that she had raised an issue of fact as to whether the hardware and software she requested were reasonable accommodations, despite her failure to submit requested medical evidence, because these accommodations had been effective for other legally blind employees. However, the court held that her other requested accommodations were unreasonable under the facts of the case, and also dismissed a separate claim regarding the employer’s failure to give her proper layoff notice.

193. Rutschke v. Northwest Airlines, 2005 U.S. Dist. Lexis 18725 (D. Minn. 2005)

Court rejected claims of employee with diabetes who retired from his position as an aircraft mechanic. Plaintiff had failed to establish a claim of constructive discharge based on disability discrimination because he had chosen to retire after

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carefully considering his options and after being transferred away from the supervisor who had allegedly harassed him because of his diabetes. The employee’s hostile work environment claim was rejected because, while the supervisor and some coworkers had allegedly been insensitive and had singled him out for criticism, this did not rise to the level of harassment required for a hostile work environment claim. The court also held that the employer did not interfere with plaintiff’s intermittent FMLA leave because the employer was entitled to seek clarification of an ambiguous doctor’s FMLA certification, and rejected plaintiff’s retaliation claim.

194. Jimenez v. Potter., 2005 U.S. Dist. Lexis 21241 (W.D. Tex. 2005)

Court granted employer summary judgment on employee’s disability discrimination claim under Rehabilitation Act because employee failed to show that he was substantially limited in a major life activity. Plaintiff, who has diabetes and an anxiety disorder, claimed he was improperly disciplined for workplace conduct. He alleged that his major life activities were limited because he had blurry vision related to his diabetes, was limited in performing manual tasks, and had other limitations related to his anxiety disorder. The court held that he had failed to show that any major life activities were limited because he continued to do his job, could perform many manual tasks, and continued to drive and participate in his children’s sporting activities. The court also rejected plaintiff’s claims of discrimination based on age and national origin. (Note: Decision on appeal at #235).

195. Burden v. Southwestern Bell Telephone Co.., 2005 U.S. Dist. Lexis 22202

(N.D. Tex. 2005)

Court granted summary judgment on employee’s disability discrimination claim. Plaintiff, who has insulin-dependent diabetes, had experienced several episodes of severe hypoglycemia on the job over a period of seven years, including one involving a traffic accident. In 2001, he signed an agreement with his employer permitting him certain on-the-job accommodations to treat his diabetes and requiring him to have regular medical supervision of his condition. In 2003, he had another severe hypoglycemic episode on the job, and was subsequently removed from his driving position and ultimately terminated. The court first held that he did not have a disability under the ADA. He alleged only that he was regarded as substantially limited in the major life activity of working, and the court held that his exclusion from driving jobs did not constitute a perception that he was unable to do a broad range or class of jobs. Moreover, the court held that he was not qualified for the position and was a safety threat because of his history of severe hypoglycemia. [Note: decision on appeal at #217]

196. Lochridge v. City of Winston-Salem, 388 F. Supp. 2d 618 (M.D. N.C. 2005)

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Magistrate judge recommended that court grant summary judgment to employer on employee’s claims of failure to accommodate and wrongful termination. Plaintiff is a computer programmer with diabetes, allergies, depression and an anxiety disorder. Over a period of several years her conditions caused her to miss extensive amounts of work. After she had exhausted her FMLA leave and her poor attendance had caused her work performance to deteriorate, the city suspended her and ultimately terminated her. The magistrate judge found that plaintiff did not have a disability within the meaning of the ADA Because she did not identify any major life activities that were limited by her conditions and she testified that her conditions, including diabetes, did not limit her. Also, plaintiff’s claims failed because she presented no evidence that she needed a reasonable accommodation and she was not meeting the employer’s reasonable performance expectations when she was terminated. Finally, her FMLA claim was rejected because her request for additional FMLA leave was filed only after she was suspended.

197. Bivins v. Gonzales, 2005 U.S. Dist. Lexis 26114 (D. Md. 2005)

Court granted summary judgment against plaintiff who worked as personnel specialist for FBI. Plaintiff has what she described as “borderline diabetes” which she claimed impacted her work performance. She requested a transfer to another position and a new supervisor and filed suit after the transfer request was denied. The court found that she had not produced any evidence that she had a disability within the meaning of the Rehabilitation Act. She alleged only that she was substantially limited in the major life activity of working, and in explaining her limitations referred only to her inability to perform the functions of one particular job. Since she had no evidence that she could not perform a broad range or class of jobs, and in fact had requested a transfer to another position within the same class of jobs, she could not establish that she was disabled. The court also rejected her age discrimination and retaliation claims.

198. Hicks v. Novartis Pharmaceuticals Corp., 457 F. Supp. 2d 814 (S. D. Ohio

2005)

Court denied defendant’s motion for summary judgment on plaintiff’s claim that she was treated unfairly, given additional job responsibilities, and ultimately terminated because of her diabetes and other disabilities. Plaintiff was diagnosed with diabetes in 2001 and also had a number of other impairments. After being assigned a new supervisor and after taking FMLA leave for a hand injury, she allegedly received hostile treatment from this supervisor, including being required to make more sales calls than other sales consultants and not having any allowances made for her medical conditions. The supervisor also made several statements such as “How can we keep you well?” and “Sometimes you have to work when you're sick.” Plaintiff alleged that she was terminated because of her supervisor’s complaints about her performance despite the fact that she was meeting her sales goals. The court did not directly address plaintiff’s actual

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disability claim, but found that she had raised a triable issue of fact as to whether the defendant regarded her as substantially limited in the major life activity of working. The court also denied summary judgment on plaintiff’s age, gender and FMLA claims, but granted summary judgment on her claim for discharge in violation of public policy.

199. McCabe v. City of Minneapolis, 2005 U.S. Dist. Lexis 27930 (D. Minn. 2005)

Court grants defendant’s motion for summary judgment on plaintiff receptionist’s disability discrimination claim. Defendant claimed that plaintiff was terminated because of her poor work performance and her absenteeism. Plaintiff did not allege that she was actually disabled, only that defendant regarded her as disabled because it transferred her mail delivery duties to other employees after she complained that her diabetes made delivering mail difficult. The court held that plaintiff could not prove that she had a disability. At most, defendant regarded her as unable to deliver mail, and this restriction on the ability to perform particular job duties did not amount to a substantial limitation in the ability to work. The court also dismissed plaintiff’s race discrimination and hostile work environment claims.

200. Rodriguez v. ConAgra Grocery Products, 436 F. 3d 468 (5th Cir. 2006)

Court reversed district court’s grant of summary judgment against plaintiff with type 2 diabetes. Plaintiff went to work in a utility laborer position at defendant’s Ranch Style Beans plant and soon afterward was offered a permanent position contingent on passing a medical examination performed by a doctor under contract to defendant. The doctor found plaintiff unqualified for the position based solely on the results of a urine glucose test and on the fact plaintiff could not remember what medications he was taking. The district court had found that plaintiff was ineligible for protection under state law analogous to the ADA because he had “failed to control a controllable condition.” However, the appeals court reversed this judgment and concluded that plaintiff was entitled to partial summary judgment as to liability. The court rejected the district court’s reasoning about plaintiff’s failure to control his condition, holding that even if this could be a valid rationale for rejecting an ADA claim in the actual disability context (a question it declined to answer), this reasoning had no application in the “regarded as” context since the focus in such cases was on the employer’s beliefs. The court also found that plaintiff had presented sufficient evidence to prove as a matter of law that defendant regarded him as substantially limited in working. In particular, the court pointed to statements by both the doctor and defendant’s human resources manager that indicated stereotypical beliefs about diabetes and suggested that plaintiff could not do any job involving manual labor safely. The court also pointed to interrogatory answers where defendant admitted that plaintiff was not qualified to do any job in its manufacturing plant. Finally, the court held that it was immaterial whether defendant believed plaintiff’s diabetes was controlled, since defendant had clearly rescinded the conditional job offer because

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of plaintiff’s diabetes. Therefore, defendant’s motives for rescinding the job offer and the fact that it hired other people with diabetes were immaterial. The court granted partial summary judgment to plaintiff and remanded for a determination of plaintiff’s damages. [Note: district court opinion at #175]

201. McPherson v. Federal Express Corp., 2005 U.S. Dist. Lexis 28775 (W. D.

Tenn. 2005)

Court grants defendant’s motion for summary judgment on plaintiff’s disability discrimination claim. Plaintiff has type 2 diabetes and worked as a manager for FedEx. He had difficulty keeping his blood glucose levels under control and in August 2001 he went on medical leave to attempt to better control his diabetes. While on medical leave, he was terminated for failing to submit needed documentation of his need for medical leave and because FedEx discovered he was working a second job and believed he was abusing the medical leave policy. He filed suit, alleging that he was terminated because of his disability. The court held that he had failed to establish that he had a disability within the meaning of the ADA. He claimed that he was substantially limited in eating, caring for himself, and seeing, and that FedEx regarded him as substantially limited in working. However, the court said he had failed to introduce evidence of any actual substantial limitations he experienced. He did not introduce any evidence of any eating restrictions placed on him by his doctor, nor any evidence of how his diabetes specifically affected his own ability to eat. Likewise, he had introduced evidence that his diabetes caused him vision problems, but he did not introduce any evidence that these problems were substantial, and they improved over time as his blood glucose control improved. Finally, plaintiff’s regarded as working claim was rejected because it was based on FedEx’s belief that he could not drive a truck because of his diabetes. Even if FedEx did believe this, this only showed that it regarded him as unable to perform a particular job, rather than a broad range or class of jobs. [note: opinion on appeal at #259]

202. Fyall v. ATC Vancom of S.C., L.P., 2005 U.S. Dist. Lexis 44411 (D. S.C. 2005)

Court granted summary judgment to defendant who employed plaintiff as a supervisor for local bus system. Plaintiff, who has diabetes treated with insulin, was laid off during a reduction in force, despite having more seniority than a supervisor who was retained. He alleged that the manager who made the decision to terminate him said that he was being fired because he could not drive a bus due to his use of insulin. In fact, supervisors in his position were not required to drive buses. He was offered a lower paid dispatcher position but refused and was terminated. He said that he did not have a disability under the ADA but alleged that his employer regarded him as substantially limited in working. The court rejected this argument because, even if true, his supervisor’s statements only established that the employer regarded him as unable to drive a bus, and this was insufficient to establish a substantial limitation in working. The court also relied

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on the fact that defendant offered plaintiff another position with the company to support its decision that plaintiff was not regarded as limited in working.

203. Wise v. Akal Security, Inc., 2005 U.S. Dist. Lexis 35241 (W. D. Tex. 2005)

Court grants plaintiff’s motion to dismiss defendant employer’s counterclaim. Plaintiff, who worked for Akal Security Inc., a private contractor that supplied Court Security Officers (CSO)s to the U.S. Marshals Service (USMS), was dismissed from his job as a CSO based on a medical evaluation by a USMS physician that he was unfit for duty because of his diabetes. (USMS standards for new hires disqualified anyone with diabetes with an A1C test result of over 8; plaintiff, who has type 2 diabetes and takes only oral medications that cannot cause hypoglycemia, had an A1C of 8.8). When plaintiff brought suit against both Akal and the USMS alleging disability discrimination, Akal raised a counterclaim alleging that its collective bargaining agreement authorized its actions and barred plaintiff from bringing suit and seeking a declaratory judgment that the suit was groundless and an award of attorneys’ fees. Defendant relied on a provision in its collective bargaining agreement that authorized it to terminate employees found by the USMS to be unfit for duty and barring any claims by the employee or the union for any such termination. THe court rejected this argument, noting that waivers of prospective ADA rights in a collective bargaining agreement are invalid as against public policy and holding that an employer may not discriminate through its contractual relationship with a union. The court analogized this case to cases such as Rodriguez v. ConAgra Grocery Products (#200) which have held that an employer may not shield itself from liability by contracting out medical evaluations and assessments to private health care professionals.

204. Johnson v. Washington Gas Light Co., 404 F. Supp. 2d 179 (D. D.C. 2005)

Court grants defendant’s motion for summary judgment dismissing plaintiff’s disability discrimination claim. Plaintiff, who has diabetes and uses insulin, was removed from his position as a meter reader following his diagnosis because, according to his employer, he could no longer perform the essential functions of the position because of his diabetes. Ultimately Je was terminated when he could not find other work with defendant. After filing an EEOC charge, he entered into a settlement agreement in which he agreed not to file a lawsuit if defendant agreed to assist him in obtaining long term disability benefits. The agreement gave plaintiff the option to refile his EEOC charge within 15 days if disability benefits were denied. Although plaintiff was initially denied long term benefits, he did not refile his EEOC charge within the required time frame, and he was ultimately awarded disability benefits. After he filed suit, defendant moved for summary judgment, arguing that the prior settlement agreement barred the lawsuit. Plaintiff failed to oppose the summary judgment motion, and the court granted it, finding that plaintiff was bound by the settlement agreement and had received the benefit promised in the agreement.

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205. Strolberg v. Akal Security Inc., 2005 U.S. Dist. Lexis 35373 (D. Idaho 2005)

Court dismisses claims of two plaintiffs with diabetes who were medically disqualified and terminated from positions as court security officers based on guidelines and medical evaluations of the U.S. Marshals Service. The case involved a number of individuals with various disabilities who had been medically disqualified. After finding that the individuals were joint employees of the USMS and Akal (a private security company under contract to provide court security officer services), the court held that none of the plaintiffs could prove that they had been regarded as disabled (plaintiffs did not raise actual disability claims). The decision that the individuals could not perform the functions of a court security officer was not evidence that the U.S. Marshals Service perceived them as substantially limited in a broad range or class of jobs so as to be substantially limited in working. As to the two individuals with diabetes, the court held, relying on Fraser v. Goodale (#149), that plaintiffs could not establish that they were substantially limited in the ability to care for themselves based solely on limitations they experienced during infrequent episodes of hypoglycemia or hyperglycemia. Plaintiffs did not assert they were regarded as limited in any other major life activities, and so their claims were dismissed.

206. Allen v. Rocklin, 2005 U.S. Dist. Lexis 40545 (D. Or. 2005)

Court grants defendant’s motion for summary judgment against employee with diabetes. Plaintiff, who had previously exhausted her available medical leave due to diabetes-related surgery, was allowed to take additional personal leave when she needed additional emergency surgery. However, several months later and before her scheduled return date, her position was eliminated for what the employer asserted where business reasons. There was no dispute that plaintiff was a qualified individual with a disability, but the court held that plaintiff had presented no evidence that her disability or her need for leave, rather than the employer’s stated business reasons, motivated the decision to eliminate her position. Her contention that defendant had eliminated the position because of plaintiff’s need for medical leave was merely speculation, unsupported by evidence.

207. Downs v. AOL Time Warner, Inc., 2006 U.S. Dist. Lexis 4848 (S.D. Ohio

2006)

Court denies summary judgment motion of employer against plaintiff with type 2 diabetes who was terminated from his position as a computer room operator. Plaintiff, who has type 2 diabetes and takes oral medications, was transferred from the first shift to the third shift, and as a result experienced difficulties controlling his blood glucose levels that led to attendance problems. Plaintiff requested a transfer to first shift, and supported his request with a letter from his doctor, but was subsequently terminated for submitting an inaccurate timesheet

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(which he alleged happened because he was experiencing hyperglycemia). The court first found that plaintiff had established an issue of fact as to whether he was substantially limited in the major life activity of eating. He submitted evidence showing that he needed to eat at specified times to keep his blood glucose under control, and that working the third shift made this difficult. The court held this evidence was sufficient to survive summary judgment, and stated that evidence that plaintiff did not adequately control his diabetes outside of working hours, while potentially relevant, did not entitle the employer to summary judgment. The court then held that a reasonable factfinder could conclude that the employer’s reasons for terminating plaintiff were pretextual, since concerns about his health had b3een raised by his supervisors previously and the employer failed to investigate his explanation for the inaccurate timesheet. Finally, the court held that plaintiff survived summary judgment on his failure to accommodate claim, rejecting defendant’s argument that plaintiff’s request for a shift change was not job related because he could adequately control his diabetes by following his doctor’s recommendations when not at work; plaintiff’s attendance problems supported a claim that his shift assignment was in fact causing him problems at work.

208. McCarty v. Adrian Steel Co,, 2006 U.S. Dist. Lexis 5372 (E. D. Mich. 2006)

Court denied employer’s motion for summary judgment against plaintiff, an individual with type 2 diabetes. Plaintiff, who had recently taken FMLA leave after his initial diagnosis, took a voluntary layoff for a month because of a slowdown in business. Before the end of the month, he was called back to work but was unreachable because he was on vacation. When he returned to work several days later he was terminated, allegedly due to being unavailable for work and due to prior attendance problems. He sued alleging violations of both the ADA and FMLA. The court first found that his diabetes did not qualify as a disability, because his doctor testified that it was under control at the time of his termination and because he testified at his deposition that he was not disabled and could do his job. It is not clear what, if any, major life activities he alleged were limited by his diabetes. However, the court found that he had raised a genuine issue of fact as to whether his employer regarded him as disabled, based on statements that suggested that the employer was worried about his possible need for kidney testing in the future and its desire to get rid of employees who had high numbers of absences. The court found that plaintiff had introduced sufficient evidence to rebut the defendant’s asserted legitimate nondiscriminatory reason for terminating him (his failure to report for work and attendance problems) by showing the temporal proximity of his diabetes diagnosis and the fact that his prior attendance problems were nearly a year old. For similar reasons, the court found that he survived summary judgment on his FMLA claim.

209. Rehrs v. Iams Co,, 2006 U.S. Dist. Lexis 6301 (D. Neb. 2006)

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Court granted defendant’s motion for summary judgment against plaintiff employee. Plaintiff has diabetes and had requested to work a straight day shift, rather than r otating shifts, in order to better control his blood glucose levels. The court found that plaintiff had raised a genuine issue of material fact as to whether his diabetes qualified as a disability by substantially limiting him in eating. This holding was based on his own testimony about the need to carefully monitor his food intake and his activities to maintain his blood glucose levels, and based on the complications he experienced (retinopathy and heart disease, among others). However, the court found that working rotating shifts was an essential function of all positions in the plant where plaintiff worked, because it was the employer’s established practice to require employees to rotate between shifts as part of work teams; the court disregarded as irrelevant plaintiff’s evidence that the work could have been performed by employees working straight shifts. Therefore, plaintiff was not entitled to a reasonable accommodation that would have altered the essential functions of his position. [note: opinion on appeal at #254 below]

210. Teachout v. New York City Dept. of Education, 2006 U.S. Dist. Lexis 7405

(S.D.N.Y. 2006) Court granted defendant’s motion for summary judgment as to plaintiff’s disability discrimination claims. Plaintiff, a special education teacher, has diabetes and dyslexia and is HIV positive. He alleged that after he made accommodation requests (to have a classroom near a bathroom and to have a consistent lunch time) he was verbally abused, given unsatisfactory performance reviews, and ultimately terminated. The court found that his diabetes did not constitute a disability. It held that he had failed to produce sufficient evidence that his diabetes limited his ability to eat, alleging only that he needed to watch what he ate and eat smaller meals. He also alleged that his ability to eliminate waste was substantially limited by incontinence caused by his diabetes. The court, while assuming that elimination of waste could be a major life activity, held that plaintiff’s evidence showed that his incontinence was only a minor inconvenience rather than a substantial limitation. The court did hold that plaintiff’s HIV status was a disability, but found no evidence that the accommodation he requested related to HIV (time off for medical appointments) had ever been denied. Finally, the court denied summary judgment as to plaintiff’s retaliation claim.

211. Smith v. United States Marshals Service, 2006 U.S. Dist. Lexis 7597 (D. Vt.

2006) Court granted summary judgment to defendant against plaintiff with type 2 diabetes who was disqualified from a position as a U. S. Marshal because of an A1C of 8.9 and evidence of peripheral neuropathy. Court found that there was no evidence that plaintiff was disabled. The defendant’s disqualification of plaintiff from a court security officer job did not indicate that he was substantially limited

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in working or that defendant perceived him to be so; it simply indicated that defendant had concerns about his ability to perform a particular job based on individualized facts about his diabetes. The court did not consider any major life activities other than working, nor did it question the medical basis for the defendant’s finding that plaintiff was medically unqualified. Accordingly, plaintiff was not protected by the ADA and summary judgment was granted.

212. Katoch v. Mediq/PRN Life Support Servs, 2006 U.S. Dist. Lexis 8059 (E. D.

Mo. 2006) Court granted defendant’s motion for summary judgment against plaintiff with diabetes who was terminated after an altercation with another employee. Plaintiff raised numerous claims, including a claim that he was harassed and subjected to a hostile work environment because of his diabetes under state law. Specifically, plaintiff alleged that his supervisor and co-workers criticized him for taking breaks to treat his diabetes and for being slow at work when he was experiencing hypoglycemia. The court held that plaintiff had failed to show that he was a member of the class protected by the statute because he had failed to show that his diabetes substantially limited any major life activity. He had failed to specify which major life activities were limited or how his diabetes affected him; in fact, he did not respond to defendant’s summary judgment argument on this point. Also, the court held that even if plaintiff was a person with a disability the conduct he complained of did not rise to the level of a hostile work environment or harassment.

213. Izzi v. UPS, 2005 U.S. Dist. Lexis 40748 (D. R.I. 2005)

Magistrate judge recommended (and district court accepted) that defendant’s motion for summary judgment on plaintiff’s disparate treatment and reasonable accommodation claims be denied. Plaintiff has type 2 diabetes, and worked as a full time package car driver until he was removed from that position by UPS when he began to take insulin and could no longer obtain a DOT card to drive vehicles larger than 10,000 pounds. Plaintiff sued under Rhode island law, claiming that UPS could have accommodated him by allowing him to drive vehicles smaller than 10,000 pounds. The court first held that plaintiff’s state law discrimination claims were not preempted by federal labor law because resolving plaintiff’s claims would not require the court to interpret the terms of the collective bargaining agreement governing plaintiff’s employment. The court then held that UPS had failed to show as a matter of law that plaintiff’s proposed accommodations (driving smaller vehicles either in a fixed-route or “cover” driving capacity) would violate seniority rules, would be per se unreasonable, or require the creation of a new driving position. In reaching this conclusion, the court relied on evidence that UPS had instituted a “diabetes protocol” to accommodate individuals with diabetes in driving positions and had successfully accommodated other drivers with diabetes in the past, and on UPS failure to

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provide specific evidence on whether such accommodations would be possible in plaintiff’s geographic location.

214. Wolhart v. Genuine Parts Co., 2006 U.S. Dist. Lexis 15574 (D. Minn. 2006)

Court granted summary judgment to employer who terminated an employee who has type 2 diabetes treated with oral medications, as well as a back injury. The employer claimed that it terminated plaintiff from his position as a delivery driver for an auto parts supply company because of excessive absenteeism. Plaintiff sued under federal and state law, alleging that he was terminated because of his diabetes and other conditions. The court dismissed his ADA claim because he failed to file a charge with the EEOC. As to his state law claim, the court held that he had failed to introduce sufficient evidence that any of his conditions were disabilities under the law. The court held that the evidence showed that his diabetes was under control with oral medications at the relevant time, and the plaintiff failed to specify how his diabetes impacted his major life activities. The court also held that his back injury was not a disability, and dismissed his claims for common law wrongful termination and retaliation for filing a workers compensation claim.

215. Scheerer v. Potter, 443 F. 3d 916 (7th Cir. 2006)

Court affirms grant of summary judgment to employer on claim that it failed to accommodate plaintiff’s diabetes. Plaintiff, who has type 2 diabetes and uses insulin, asked for an assistant to help with his duties as postmaster in a small post office. His requests were ignored for several months before an assistant was provided. The court found that he failed to raise an issue of fact as to whether he is substantially limited in any activities. He alleged limitations in standing, walking, eating, and sleeping. As to walking and standing, the court held that his limitations were not substantial at the time he was denied accommodation (although his toe subsequently had to be amputated). With regard to eating, the court held his eating restrictions were only focused on losing weight, and he had never had severe hypoglycemia or serious complications, and therefore were not significant enough to be substantially limiting.

216. Davis v. Ozarks Electric Cooperative, 2006 U.S. Dist. Lexis 21835 (W. D. Ark.

2006) Court denied summary judgment on plaintiff’s disability discrimination claim. Plaintiff, who worked for an electric utility, asked to be relieved from being “on call” after hours for a period of time (possibly six months or more) following her diagnosis of type 2 diabetes. Defendant refused this request and terminated her. The court held that plaintiff did not have an actual disability because the only limitations her doctor placed on her because of diabetes were a restriction from driving after working overtime, when she was likely to be tired, and because this restriction was only expected to last until she got her diabetes under control. It is

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not clear what major life activities plaintiff asserted were actually limited by her diabetes. However, the court held that plaintiff had raised an issue of fact as to whether defendant regarded her as disabled because the individuals who made the decision to terminate her believed “that, because plaintiff had diabetes, she was ‘out of control,’ she might pass out at any time, or that ‘I don't know what all’ could happen.” Based on these statements, and on evidence that these fears were unfounded, the court held that a jury could conclude that defendant believed she could not work safely and was therefore substantially limited in working. The court finally held that defendant had failed to prove as a matter of law that being “on call” was an essential function of plaintiff’s position.

217. Burden v. Southwestern Bell Telephone Co.., 183 Fed. Appx. 414 (5th Cir. 2006)

Court affirms grant of summary judgment to defendant on discrimination claim. Plaintiff, who has insulin-dependent diabetes, experienced multiple episodes of severe hypoglycemia on the job, including one involving a traffic accident. He was terminated after a severe hypoglycemic episode on the job and being unable to find any positions in the company that did not involve driving. The lower court granted summary judgment on the grounds that he did not have a disability and that he was not qualified for his job. The appeals court affirmed on the issue of qualification. It held that the employer acted reasonably in determining that he was not qualified to drive a company vehicle based on his prior episodes of hypoglycemia. The court did not find it necessary to address the lower court’s holding as to whether the plaintiff had a disability.

218. Aguirre-Rodriguez v. Little Caesars, 431 F. Supp. 2d 205 (D. P.R. 2006)

Court grants summary judgment against plaintiff, who resigned after he was reprimanded and required to undergo retraining for violating company policies. Plaintiff, who has diabetes treated with insulin, worked as an assistant manager for a restaurant. Although company policy prohibited employees from opening the back door of the restaurant after dark and from allowing non-employees behind the counter or in the back areas of thee restaurant, plaintiff’s wife frequently came to the restaurant to give plaintiff food and insulin, and on some occasions was allowed to come behind the counter to give plaintiff his insulin, or enter through the back door to do so, even though plaintiff was capable of administering insulin himself. Even though plaintiff knew about these company policies, he never requested any accommodations related to his diabetes. When his superiors learned of these incidents, he was reprimanded and ordered to attend retraining; soon afterward he resigned. The court assumed, without deciding, that plaintiff had a disability, but held that defendant took its actions not because plaintiff had diabetes but because plaintiff engaged in multiple violations of company policies. Plaintiff presented no evidence to suggest that this reason was a pretext for discrimination.

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219. EEOC v. Carter-Jones Lumber Co., 2006 U.S. Dist. Lexis 33903 (N. D. Ohio 2006)

Court denied defendant’s motions for summary judgment against plaintiff, who alleged he was discharged from his position and later not rehired as a result of his need for dialysis resulting from end-stage renal failure brought on by his diabetes. While providing few details about its reasoning and stating that it was a close case, the court found that plaintiff had put forward sufficient evidence to survive summary judgment on the issue of whether he was unlawfully discharged because of his end-stage renal failure. The court also rejected defendant’s argument that plaintiff’s receipt of SSDI benefits precluded a finding that he was qualified, saying that plaintiff had come forward with enough evidence to explain the difference between his benefits application and the claims in this lawsuit. Finally, the court denied a separate summary judgment motion on the issue of whether plaintiff has a disability, finding that case law upholding end-stage renal failure as substantially limiting major life activities precluded summary judgment on this issue.

220. Rowden v. International Paper Co., 2006 U.S. Dist. Lexis 34947 (E. D. Ark.

2006) Court granted summary judgment for employer against plaintiff, who has diabetes and hypertension. Plaintiff, who takes medication for his diabetes (the opinion is not clear on whether this includes insulin), filed suit alleging race, age, sex and disability discrimination. His claims appear to have been based on a number of incidents of alleged harassment at work, largely based on his race, as well as certain changes made to his vacation and seniority status; it is not clear how any of these actions related to his diabetes. The court noted that because of his diabetes he must “occasionally stretch his legs, check his blood sugar, and regulate his diet.” Without analysis, the court rejected plaintiff’s ADA claim, stating that he had produced insufficient evidence that his diabetes and hypertension substantially limited any major life activities. The court also rejected plaintiff’s race, age and sex discrimination claims.

221. Barreto v. Continental Express, Inc., 2006 U.S. Dist. Lexis 41391 (S. D. Tex.

2006)

Court granted summary judgment in favor of trucking company against plaintiff who has type 2 diabetes. Plaintiff worked as a commercial driver for defendant until, while on the road, he was admitted to a hospital with very high blood glucose levels. It was later discovered that he had suffered a stroke, and because of this he was required to be re-evaluated by a physician to renew his Department of Transportation (DOT) medical certification. He was unable to be recertified because DOT regulations forbid driving commercial vehicles within one year after a stroke, and when his FMLA leave was exhausted he was terminated. In his suit he did not allege that he was actually disabled by his diabetes and stroke, only

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that his employer regarded him as substantially limited in working. The court held there was no evidence that his employer regarded him as anything more than unable to get a DOT card, and this was insufficient as a matter of law to establish a “regarded as” claim.

222. Rohr v. Salt River Project Agricultural Improvement & Power District,, 2006

U.S. Dist. Lexis 48984 (D. Ariz. 2006) Court granted summary judgment against plaintiff with diabetes, who worked at defendant’s power plants until he was terminated because his doctor placed him on work restrictions including no overnight or out of town work, no work days longer than nine hours, and no exposure to extreme heat. Plaintiff sued, and defendant moved for summary judgment claiming that plaintiff’s diabetes was not a disability. The court acknowledged that diabetes had been found to be a disability substantially limiting the major life activity of eating in certain cases, but said that plaintiff had failed to meet his burden here. In his brief plaintiff discussed the effects of diabetes generally, but did not discuss specifically its effect on him, and did not identify any restrictions on his major life activities other than his work restrictions, which did not demonstrate a substantial limitation in eating (the major life activity plaintiff claimed to be limited in). Also, plaintiff admitted that if he took his medication and watched what and when he ate he has no limitations on his activities other than his work restrictions. Finally, the court held that plaintiff was not qualified for the job because he had failed to obtain proper annual certification in operating a respirator, which was an essential job function.

223. Cox v. Carrier Sales & Distrib., 2006 U.S. Dist. Lexis 49705 (E. D. Tenn.

2006) Court granted summary judgment to employer after plaintiff sued, claiming her termination violated various federal and state statutes. Plaintiff has diabetes and uses insulin, and also has hypertension and is morbidly obese. She was terminated from her position as an administrative assistant, allegedly because of attitude problems and because office changes eliminated her position. The court concluded that her ADA and state disability discrimination claims failed because plaintiff’s diabetes, hypertension and obesity did not substantially limit any major life activities. Plaintiff argued that her activities of walking, working, sitting and bending were substantially limited; plaintiff did not assert, nor did the court address, eating as a major life activity. Plaintiff stated that she could “pretty much” lead a normal life if she controlled her diet and took insulin. She asserted that her diabetes caused her to need to urinate frequently and to be absent from work frequently, both of which limited her ability to work, but the court held these limitations were not substantial. The court also found that her limitations in walking, sitting and bending were not substantial, and rejected her other federal and state law claims for race and age discrimination, hostile work environment, and intentional infliction of emotional distress.

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224. Tropiano v. Pennsylvania State Police, 2006 U.S. Dist. Lexis 50312 (E. D. Pa.

2006) Court granted in part and denied in part defendants’ motion to dismiss plaintiff’s claims under 42 U.S.C. § 1983 for employment discrimination. Plaintiff received a conditional offer of employment as a state police officer cadet, but that offer was withdrawn when it was discovered he has type 1 diabetes, despite a letter from his doctor saying that he was in good control and could perform any job. Plaintiff filed suit against the state and several state officials alleging violations of section 504 of the Rehabilitation Act and section 1983; the 504 claims were not directly at issue in the motion to dismiss. The court dismissed 1983 claims against the state police commissioner because the complaint failed to allege sufficient facts to show that he was involved in the decision or policy at issue, and also dismissed 1983 claims based on violations of the due process clause and privileges and immunities clause. However, the court held that a 1983 claim could be premised on a violation of section 504, and that plaintiff had sufficiently alleged such a violation by alleging, at minimum, that state officials regarded him as disabled and failed to perform an individualized assessment of his condition. Moreover, the need for an individualized assessment was clearly established in federal law and therefore state officials were not entitled to qualified immunity.

225. Brion v. Adrian Steel Co., 2006 U.S. Dist. Lexis 51466 (E.D. Mich. 2006)

Court denied summary judgment to employer on plaintiff’s disability discrimination claims. Plaintiff, who has diabetes and irritable bowel syndrome, sued after being terminated allegedly for poor performance and absenteeism. In analyzing plaintiff’s claims under the ADA and state antidiscrimination law, the court found that she had produced sufficient evidence that her conditions could be disabilities. First, the court rejected the employer’s argument that the major life activity at issue must be related to the plaintiff’s ability to perform the job, noting that the question of whether an individual has a disability is generally evaluated with respect to activities of daily living, not those connected to a particular job. The court then held that plaintiff’s evidence that her diabetes caused her to have difficulty seeing the vision chart at her doctor’s office and on one occasion had rendered her unable to eat for five days were sufficient to raise a triable issue of fact as to whether she was disabled. The court also found that plaintiff’s irritable bowel syndrome could constitute a disability, rejected summary judgment on her FMLA retaliation and ERISA claims, and dismissed her FMLA interference claim.

226. Varatharajan v. Parkdale Pharmaceuticals, Inc., 2006 U.S. Dist. Lexis 61002

(E.D. Mich. 2006) Court granted defendant’s motion for summary judgment on plaintiff’s claim for disability discrimination. Plaintiff, who has type 2 diabetes, claims that she was

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not accommodated with a fixed work schedule and a limited, eight-hour workday after she was diagnosed. The court held that she could not prove that she was an individual with a disability. She claimed that her major life activities of eating and sleeping were limited by her need to eat and sleep on a regular schedule to control her diabetes, but she provided no further information about the limitations her diabetes caused. The court held that this assertion was insignificant and was in effect an attempt to rely on her diagnosis of diabetes alone to prove disability. Plaintiff also claimed that she was regarded as disabled because of defendant’s hostility to her need for accommodations, but provided no evidentiary or legal support for this argument. Finally, the court granted in part and denied in part summary judgment on plaintiff’s claims for national origin discrimination.

227. Bryant v. Dollar General Corp, 2006 U.S. Dist. Lexis 62815 (M.D. Tenn. 2006)

Court grants summary judgment to defendant on plaintiff’s claims under the ADA> Plaintiff, who has diabetes, high blood pressure and a heart condition, was terminated from her job as a computer programmer, allegedly for poor performance and inappropriate conduct. She filed suit claiming that the employer terminated her because it believed she could not do her job because of her medical conditions and thus perceived her as disabled in the major life activity of working. The court held that she could not establish a prima facie case because the only evidence of her employer’s perceptions related to her ability to perform her particular job. She introduced no evidence about her employer’s perceptions of her ability to do other jobs, and the court found this to be fatal to her claim because she was only perceived as unable to do a particular job. She did not claim she was limited in any major life activities other than working. The court permitted her FMLA retaliation claim to go to trial..

228. Chasse v. Computer Sciences Corp., 453 F. Supp. 2d 503 (D. Conn. 2006)

District court granted employer’s motion for summary judgment against employee who has diabetes and Charcot foot disease. After breaking her ankle, plaintiff had to take medical leave for a year because her diabetes complications and other health problems complicated her recovery. When she sought to return to work, she was told that her position had been eliminated as part of a reduction in force. She sued, claiming that her termination was a pretext for discrimination. The court first found that she had a disability within the meaning of the ADA, because her ongoing foot and ankle problems substantially limited her ability to walk (she could not stand or walk for more than 30 minutes without rest). However, the court found that she could not perform the essential functions of her job because, at the time her one year of allowable leave under the company’s policies ended, her doctor still had not cleared her to return to work and stated that she was “totally disabled”. The court also found that she had produced no evidence that the company’s decision to eliminate her position was a pretext for discrimination rather than a decision made for objective business reasons unrelated to disability.

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229. Amick v. Visiting Nurse & Hospice Home, 2006 U.S. Dist. Lexis 76326 (N. D.

Ind. 2006) Court denied employer’s motion for summary judgment on employee’s claim that her employer’s failure to accommodate her diabetes led to her termination. Plaintiff, whose position as a medical social worker required her to drive to appointments at clients’ homes, experienced severe hypoglycemia while on a client visit. Her employer subsequently restricted her from driving and ultimately terminated her when her physician could not provide assurances that such an incident could not happen again. The court first held that plaintiff had raised an issue of fact as to whether she was substantially limited in eating, analogizing this case to Branham v. Snow (#180, above). The court also held the, and held that a jury question existed as to whether the employer regarded her as disabled because of its decision to restrict her from driving and the concerns that led to that decision. Next, the court found that a question of fact existed as to whether plaintiff was qualified for the position. Stating that defendant’s safety concerns should be evaluated using direct threat analysis, the court found the evidence mixed on this point given that plaintiff maintained good control of her diabetes and her doctor thought that she could drive safely if she checked her blood glucose every fifteen minutes. Finally, the court held that plaintiff had raised a genuine issue of fact on her accommodation claim, ruling that there was evidence her doctor had sufficiently requested an accommodation and that this accommodation (checking blood glucose every fifteen minutes while driving) was reasonable, and that she could proceed with her retaliation claim..

230. Davenport v. Idaho Dept. of Envtl. Qualify, 469 F. Supp. 2d 861 (D. Idaho

2006) Court granted in part and denied in part defendant’s motion for summary judgment. Plaintiff has type 1 diabetes, As a result of a medical examination conducted when plaintiff was hired as a remediation scientist, defendant placed several work restrictions on plaintiff, including no driving of state vehicles, no work alone, and no work at heights or in confined spaces. Plaintiff claimed he was given little to do and then later terminated when his performance was judged to be unsatisfactory. The court first rejected defendant’s argument that plaintiff was not a person with a disability. The court analogized this case to Branham v. Snow (#180, above) and held that although plaintiff had never experienced severe hypoglycemia, he was required to carefully monitor his food intake, insulin doses and physical activity, and was not free to eat whatever and whenever he wished. The court rejected defendant’s attempt to rely on Scheerer v. Potter (#215, above) because, unlike Scheerer, plaintiff’s limitations on his ability to eat were due to the need to control blood glucose levels, not merely to a general need to lose weight. The court then found that the imposition of plaintiff’s medical restrictions constituted an adverse employment action because they hampered his ability to successfully perform and retain his job. The court then found that his

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subsequent demotion or termination did not give rise to a disability discrimination claim because he failed to rebut defendant’s legitimate nondiscriminatory reason (poor performance). (This conclusion was overturned on reconsideration; see #248 below). The court dismissed plaintiff’s failure to accommodate claim because he admitted that he did not require any accommodations to perform his job other than the removal of the work restrictions placed on him by his employer. Finally, the court dismissed plaintiff’s money damages claims under the ADA because of 11th Amendment immunity.

231. Herman v. Kvaerner of Philadelphia Shipyard, Inc., 461 F. Supp. 2d 332 (E.

D. Pa. 2006) Court granted in part and denied in part defendant’s motion for summary judgment against plaintiff who has diabetes treated with insulin. Plaintiff claimed he was denied a reasonable accommodation and terminated due to his diabetes. Plaintiff claimed he was substantially limited in the major life activities of eating, thinking and secreting insulin, and the court first held that he had produced sufficient evidence to raise a fact question on whether he was disabled based on evidence of the symptoms he experienced even when he took insulin as prescribed. His deposition testimony that diabetes did not limit his ability to work did not contradict his later affidavit regarding limitations on other activities. The court then found there was evidence that defendant’s reason for terminating plaintiff (a reduction in force) was pretextual. As to plaintiff’s accommodation claim, the court rejected defendant’s argument that plaintiff had never requested an accommodation, holding that there was evidence defendant knew plaintiff had diabetes and needed to leave work at a certain time each day to inject insulin and eat. Finally, the court held that plaintiff could not prove he was regarded as disabled based only on evidence that defendant viewed him as unable to work overtime.

232. Bynum v. MVM, Inc., 462 F. Supp. 2d 9 (D. D.C. 2006)

Court denied defendant’s motion for summary judgment. Plaintiff, who has diabetes, heart disease and coronary artery disease, was hired as a court security officer (CSO) but was later terminated after defendant received medical information from plaintiff’s doctor that his diabetes and hypertension were not adequately controlled. Defendant did not contest that plaintiff had a disability, but argued that plaintiff was not qualified to perform a CSO job because of the safety risk posed by his medical conditions. The court found that plaintiff had raised a genuine issue of fact as to whether he was qualified for the job based on evidence that he had performed the job safely and well over a period of months and had never had any problems on the job due to his medical condition. The court also denied summary judgment on plaintiff’s race discrimination claim.

233. Kothe v. Coninental Teves Inc., 461 F. Supp. 2d 466 (W. D. Va. 1006)

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Court granted summary judgment to defendant on plaintiff engineer’s discrimination claim. Plaintiff has diabetes and had one foot and all five toes on the other foot amputated, uses a prosthesis, and also had fractures his legs on several occasions. Plaintiff was terminated based on an investigation that showed he was accepting kickbacks in exchange for steering business to his father’s company and was bribing other employees to assist him in doing so. The court found that plaintiff had not shown that he had a disability because his allegations that he was substantially limited in walking and standing were not sufficient. The evidence showed only that he could not wear steel-toed boots on the job and had at one time been restricted from prolonged periods of standing. The court found this insufficient and rejected plaintiff’s testimony that he had difficulty standing and walking in many situations because he had not presented medical evidence that these difficulties were present prior to his termination. Finally, the court held that even if plaintiff did have a disability, he had presented no evidence to show that his termination for suspected fraud was a pretext for discrimination.

234. Beier v. Hoffmaster Co., 2006 U.S. Dist. Lexis 85110 (E. D. Wis. 2006)

Court granted summary judgment against plaintiff who claimed that his migraine headaches, type 2 diabetes (treated with insulin), hypertension and other conditions prevented him from working overtime. Plaintiff alleged that his diabetes required him to eat regular meals and snacks, but that his employer did not permit him to take extra breaks, making his diabetes more difficult to control. The parties focused their arguments on whether plaintiff was substantially limited in working, and the court focused its analysis on whether the inability to work overtime rendered plaintiff disabled. The court found that plaintiff’s ability to work a 40-hour workweek precluded a finding that he was substantially limited in working. It rejected plaintiff’s arguments related to his diabetes because it felt the only limitation that resulted from plaintiff’s difficulty in controlling his diabetes was the inability to work overtime. The court also rejected plaintiff’s claim that he was substantially limited in certain other major life activities, primarily as a result of his migraines, as conclusory and unsupported by evidence.

235. Jimenez v. Potter., 211 Fed. Appx. 289 (5th Cir. 2006)

Court affirms grant of summary judgment to employer on employee’s disability discrimination claim under Rehabilitation Act because employee failed to show that he was substantially limited in working. Plaintiff, who has diabetes, an anxiety disorder, and several other ailments, claimed he was improperly disciplined for workplace conduct. The only major life activity he claimed to be limited in on appeal was working. However, the court found that his record of sixteen years of employment with the employer, including promotions and pay increases, negated any inference that his conditions impaired his ability to work. The employee’s doctor testified that the employee’s impairments affected his major life activities, but did not believe he was limited in his ability to go to work. (Note: district court decision at #194).

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236. Heron v. Potter, 2006 U.S. Dist. Lexis 93308 (D. Del. 2006)

Court denies defendant’s motion for summary judgment against plaintiff who has type 1 diabetes and hypertension. Plaintiff, who worked for the Postal Service, requested that he be assigned to work on the day shift as an accommodation based on medical opinion that working the evening or night shifts would exacerbate his diabetes and hypertension. When the Postal Service failed to accommodate him, he filed suit, and defendant moved for summary judgment arguing that plaintiff did not have a disability and was not qualified for the positions he sought. The court denied the motion, holding that, since summary judgment is generally inappropriate in ADA employment cases, plaintiff had raised a genuine issue of material fact as to whether he had a disability and whether he was qualified. Summary judgment was also denied as to plaintiff’s Title VII claim.

237. Gagen v. Continental Cas. Co., 2007 U.S. Dist. Lexis 42 (N.D. Ill. 2007)

Court grants defendant’s motion for summary judgment against plaintiff who worked as a risk management consultant. While hospitalized for another condition, plaintiff was diagnosed with type 2 diabetes. A few months later, he was terminated as part of a reduction in force. He filed suit, raising claims of age and disability discrimination and interference with FMLA rights. The court found that he had not proven that he was substantially limited in any major life activities. He was not substantially limited in eating because his eating restrictions were primarily for the purpose of losing weight. The court relied on the facts that he controlled his diabetes through diet and medication and that he was able to return to work and perform his job duties after his diagnosis as evidence that his diabetes did not “severely” restrict him from performing any major life activities. His age discrimination and FMLA claims were also dismissed.

238. Countryman v. Nordstrom, Inc., 2007 U.S. Dist. Lexis 1503 (D. Minn. 2007)

Court denied defendant’s motion for summary judgment on plaintiff’s failure to accommodate and constructive discharge claims. Plaintiff was working as a sales representative in defendant’s store when she was diagnosed with type 1 diabetes. Over the next several months, she had difficulty establishing her proper insulin regimen and experienced hypoglycemia and hyperglycemia roughly once a week, including some at work. Defendant allowed her breaks and schedule modifications to treat her diabetes; but when other employees complained she was criticized and disciplined for taking excessive breaks, and ultimately quit when her supervisor declined to recommend her transfer to another department so she would not have to work alone. The court found she could survive summary judgment on whether she had a disability. Her need to watch what she ate, test her blood glucose frequently, and take immediate corrective action if needed, coupled with her regular hypoglycemia, was enough to establish a substantial

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limitation in various major life activities, including eating. Also, she survived summary judgment on her constructive discharged claim. Forcing a person with diabetes to avoid taking needed breaks and thus risk serious health consequences could create an intolerable work environment sufficient for constructive discharge. Finally, her failure to accommodate claim survived because there was evidence the accommodations defendant claimed to provide were not effective.

239. Brannon v. Luco Mop Co., 2007 U.S. Dist. Lexis 3636 (E. D. Mo. 2007)

Court granted defendant’s motion for summary judgment against plaintiff, who worked as a packer at defendant’s plant. Plaintiff has diabetes, and because of multiple foot surgeries and other problems she missed significant amounts of work. She was terminated because of her absenteeism and because of her alleged decline in performance. The court held that she had established a genuine issue of fact as to whether she was substantially limited in walking because of testimony that she could only walk a few blocks without needing to stop and rest to return feeling to her feet. However, the court found she was not substantially limited in standing, sleeping or eating. With regard to eating, the court said that her testimony that she could only eat sugary foods in limited quantities was insufficient, as this was merely a dietary restriction. The court then found that her reasonable accommodation claim failed because she was unable to perform the job with or without reasonable accommodation. Her poor attendance rendered her unable to perform the job without accommodation, and the accommodations she suggested were either ineffective or unreasonable. [note: opinion on appeal at #281]

240. Jacob v. Didlake Corp., 2007 U.S. Dist. Lexis 4095 (D. Md. 2007)

Court granted in part and denied in part defendant’s motion for summary judgment against plaintiff who was terminated from her position as a receptionist. Plaintiff has muscular dystrophy, diabetes and cognitive impairments. She was hired through defendant, a staffing agency, as a receptionist at a federal office building. She was terminated due to a number of performance problems, including her difficulty performing certain assigned tasks involving walking and physical labor. She sued under a county ordinance that prohibited disability discrimination, which uses the same substantive standards as the ADA; defendant conceded she was disabled. The court dismissed her failure to accommodate claim, holding that defendant had made sufficient efforts to accommodate her in performing the physical aspects of her job. Her hostile work environment claim was also dismissed; she claimed, among other things, that her supervisor (a federal employee) became very upset when she took breaks to treat her diabetes. Although the treatment plaintiff received could be sufficiently hostile to support a claim, there was no evidence defendant knew of that conduct. Finally, the court denied summary judgment on plaintiff’s wrongful discharge claim, because defendant considered plaintiff’s inability to do certain physical tasks, which may not have been essential job functions, in making its termination decision.

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241. Wilson v. MVM, Inc., 475 F. 3d 166 (3rd Cir. 2007)

Court affirms district court’s grant of summary judgment in favor of federal government and of contractor that employed plaintiffs to provide security at federal courthouse under the direction of the U.S. Marshals Service. Three plaintiffs, one of whom has diabetes and cardiovascular disease, were terminated from their positions as security officers after they were medically disqualified by the Marshals Service. The court first held that plaintiffs’ claims against the federal government under the Rehabilitation Act were barred because plaintiffs had failed to exhaust administrative remedies, and rejected the claim that the contractor had denied plaintiffs due process. As to the ADA claim against the contractor, the court held that the medical conditions of all three plaintiffs were controlled with mitigating measures and thus under Sutton v. United Air Lines could not constitute an actual disability. The court affirmed the lower court’s finding that plaintiffs were not regarded as disabled because the private company did not perceive them as disabled in any way and would have continued to employ them but for the Marshals Service decision to medically disqualify them. [Note: prior decision at #184].

242. Davis v. Great Southern Wood Preserving, Inc., 2007 U.S. Dist. Lexis 7855 (S.

D. Ala. 2007) Court granted summary judgment against truck driver who had diabetes, hypertension, degenerative disc disease and other ailments. When defendant learned that plaintiff was taking medication that could make him drowsy and thus could not drive long haul routes, it temporarily suspended him while it determined how long he could safely drive. Before it could return him to work (with an accommodation of driving only routes less than 250 miles), his DOT medical certification expired, and the doctor hired by the company to evaluate him refused to recertify him (for reasons that are not clear). Because he did not have a DOT medical card, he was terminated. Plaintiff alleged race and disability discrimination, but failed to respond to defendant’s summary judgment motion. The court found that he was not disabled because he had not introduced evidence of any limitations caused by any of his conditions (other than the inability to drive commercial truck routes over 250 miles). Even if he were disabled, the court held he was not qualified for the job once he lost his DOT certification.

243. Brady v. Potter, 476 F. Supp. 2d 745 (N. D. Ohio 2007)

Court granted summary judgment to U. S. Postal Service against plaintiff, who has type 1 diabetes. Plaintiff worked as a mail distribution clerk and had several episodes of hypoglycemia while at work, one of which required 911 to be called. She requested intermittent FMLA leave after each of these incidents, but the USPS denied these requests because it did not believe her medical documentation was sufficient. She alleged that she was terminated in retaliation for her requests

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for FMLA leave and for her activity in pursuing an EEOC charge of discrimination. The court held that she did not have a disability within the meaning of the ADA, focusing primarily on the fact that she was generally able to maintain a good attendance record at her job. Despite the fact that she had to receive insulin through an insulin pump and was required to strictly control her diet and check her blood glucose levels regularly, and despite the effect that stress, heat, and other factors had on her blood glucose levels, the court held, with little analysis, that she had failed to prove that she was substantially limited in any major life activity. The court also held that she was not regarded as disabled, since she in fact claimed that the USPS underestimated the effect of her condition when it denied her FMLA leave. Finally, her FMLA claims were rejected because she had failed to submit the proper documentation to support her requests for leave. [Note: opinion on appeal at #284.]

244. Owens v. Quality Hyundai, 2007 U.S. Dist. Lexis 10455 (N. D. Ill. 2007)

Court granted summary judgment against plaintiff who worked as a salesperson for defendant. Plaintiff requested medical leave to undergo eye surgery to correct eye problems that resulted from his diabetes. Plaintiff claimed that during his medical leave (during which he underwent multiple eye surgeries) he communicated with his employer and was never told that his position was in jeopardy, but when he attempted to return to work nearly one year after beginning his leave, he was told that all sales positions were filled and he would not be able to return to work. Defendant did not dispute that plaintiff had a disability under the ADA. The court held that plaintiff had raised a genuine issue of fact as to whether he was qualified for the job, because the evidence suggested that he was not in fact terminated until the date he attempted to return to work, at which time he had been cleared by a doctor to return. However, the court held that plaintiff could not rebut defendant’s legitimate nondiscriminatory reason for his termination—that there were no open positions. Also, the court rejected plaintiff’s reasonable accommodation claim, holding that a request for an indefinite medical leave was unreasonable as a matter of law and that defendant had no duty to keep a position open for plaintiff for nearly a year.

245. Toam v. Verizon, 2007 U.S. Dist. Lexis 12032 (N. D. Ind. 2007)

Summary judgment granted against plaintiff, who has type 1 diabetes and applied for a position as a cable splicer with defendant. Plaintiff received a conditional offer of employment, but during the required medical screening his A1C was 11.5 and, on this basis, the physician conducting the evaluation opined that he could not safely perform the job. Plaintiff claimed that defendant regarded him as disabled in working, but the court rejected this claim because plaintiff had submitted no evidence that defendant viewed him as unable to perform any jobs beyond that for which he applied, since it had done no more than rely on the opinion of its physician. Although plaintiff had previously asserted that his diabetes did not actually limit him in any way, in opposition to the summary

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judgment motion he attempted to argue that he was actually substantially limited in eating. The court rejected this argument as well because it was not supported by any medical testimony, and was only supported by plaintiff’s “self-supporting” affidavit testimony. Finally, the court rejected plaintiff’s claim that defendant had breached an enforceable contract by revoking his conditional offer of employment.

246. Miller v. Verizon Communications, 474 F. Supp. 2d 187 (D. Mass. 2007)

Court denied summary judgment on plaintiff’s claims of disability discrimination and retaliation under the ADA and state law. Plaintiff, who has diabetes, worked as a customer service representative for defendant until she was fired for excessive absenteeism. The court found that she had introduced sufficient evidence to survive defendant’s motion to dismiss regarding whether she was substantially limited in eating. This evidence included her need to modify her diet and limit sugar intake, her need to totally avoid a number of foods, and references in her medical records to stomach pains and other problems related to eating. The court specifically held that she did not need to present medical evidence about her eating restrictions, as the connection between diabetes and eating restrictions is well understood in the general population. The court rejected defendant’s argument that her diabetes was not limiting in its mitigated state because her eating restrictions and other problems were present even when she was taking mitigating measures. The court did, however, find that she was not substantially limited in sleeping or basic mobility because she had failed to introduce any medical evidence about her restrictions. Having found that plaintiff had a disability, the court held that defendant had failed to prove that attendance was an essential function of her job, based on evidence that defendant’s attendance requirements were flexible, and held that plaintiff’s suggested accommodations (a modified or part-time work schedule) may have been reasonable. Finally, the court denied summary judgment on plaintiff’s retaliation claim, finding sufficient evidence that plaintiff may have been fired in retaliation for requesting accommodations.

247. Robinson v. St. Mary’s Health Care Sys., 2007 U.S. Dist. Lexis 15803 (M. D.

Ga. 2007) Court granted summary judgment against plaintiff, who has sleep apnea, type 2 diabetes, hypertension and back pain. Plaintiff worked as an EMT for defendant; while on the job, he became disoriented and semi-conscious, and had to be taken to the emergency room. Plaintiff was terminated when he admitted that he had been taking prescription narcotics on the job at the time of this incident without informing his supervisor, in violation of defendant’s drug and alcohol policy. He claimed that his medical conditions substantially limited his ability to work, bend, lift and sleep. However, the court found that he had failed to produce any evidence that his diabetes, back pain and hypertension had any impact on his major life activities. With respect to diabetes, the court relied on evidence that

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plaintiff’s diabetes had only interfered with his ability to work on four occasions. Plaintiff was also not regarded as disabled because there was no evidence that defendant’s decisionmakers knew of his disabilities when they terminated him. The court did find plaintiff had raised an issue of fact as to whether his sleep apnea substantially limited his ability to sleep. However, the court granted summary judgment because there was no evidence that plaintiff had been fired because of his disability rather than because he had violated the defendant’s alcohol and drug policy.

248. Davenport v. Idaho Dept. of Envtl. Qualify, 2007 U.S. Dist. Lexis 21603 (D.

Idaho 2007) On plaintiff’s motion for reconsideration of order granting in part and denying in part defendant’s motion or summary judgment (see #230 above), court held that its findings relating to plaintiff’s demotion from one position and termination from his subsequent position were erroneous. The court had previously found that plaintiff had not shown a causal link between his diabetes and these adverse employment actions. However, the court now held that plaintiff’s evidence was in fact sufficient to survive summary judgment on these claims. The court relied on evidence that plaintiff’s performance did not become an issue until after work restrictions were placed on him due to his diabetes, that his supervisor expressed fear about his diabetes and reluctance to train him for his new position, and that he was required to take a competency test that no one in his position had ever been required to take. The court held that this evidence was sufficient to show that diabetes could have been a motivating factor in the adverse actions and to raise an issue of fact as to whether defendant’s proffered nondiscriminatory reasons were pretextual.

249. Hughes v. City of Bethlehem, 2007 U.S. Dist. Lexis 22409 (E. D. Pa. 2007)

Court granted summary judgment to defendant against plaintiff who has type 2 diabetes treated with medication and sometimes with insulin. Plaintiff was terminated for dishonesty after she called in sick when she was actually on vacation in Las Vegas and later lied to her employer about whether she had in fact been in Las Vegas. Plaintiff sued alleging discrimination and retaliation under the ADA, as well as gender discrimination and violation of procedural due process. The court found that she did not have a disability under the ADA based on her treating physician’s testimony that he had never placed her on work restrictions because of her diabetes and her diabetes did not result in any limitations on activities of daily living or any functions. In the alternative, the court held that the employer had a legitimate nondiscriminatory reason for the termination (dishonesty) and plaintiff had presented no evidence of pretext. The court also rejected plaintiff’s retaliation claim as there was no evidence she had ever asked for accommodations or engaged in any other protected activity, and rejected her gender discrimination and due process claims as well.

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250. Jackson v. Sunshine Mills, 2007 U.S. Dist. Lexis 24968 (N. D. Miss. 2007) Court grants defendant’s motion for summary judgment. Plaintiff had filed suit, alleging that he was terminated because of his diabetes. After filing his complaint, plaintiff failed to respond to discovery requests, make himself available for deposition, or respond to the summary judgment motion. Consequently, the court granted defendant’s motion to have its requests for admissions deemed admitted. The court then found that, based on these admissions, plaintiff had never informed his supervisors that he had diabetes or requested any accommodations. The court held that, even assuming plaintiff had a disability under the ADA, plaintiff could not show his termination was motivated by his diabetes when he could not show that defendant knew of his diabetes.

251. Daniels v. Chertoff, 2007 U.S. Dist. Lexis 28750 (D. Ariz. 2007)

Court granted defendants’ motion to dismiss against plaintiff, who has diabetes and worked as an airport security screener for the Transportation Security Administration (TSA). Plaintiff alleged that the TSA refused to process his request for a reasonable accommodation and repeatedly required him to undergo unnecessary medical examinations because of his diabetes. Proceeding pro se, plaintiff sued alleging violations of the ADA, the Rehabilitation Act and several other federal statutes. The court dismissed his ADA claim because the ADA does not apply to the federal government. The court also dismissed his Rehabilitation Act claim because the legislation which created the TSA allowed it to create and implement physical standards notwithstanding any other provisions of federal laws. The court held that, because of this language, the TSA was not subject to the Rehabilitation Act with respect to its physical standards for screeners, and thus was not required to accommodate individuals with disabilities

252. White v. Riverview School Dist., 2007 U.S. App. Lexis 9885 (8th Cir. 2007)

Court affirmed grant of summary judgment against plaintiff who worked for school district. After working for several years as a teacher’s aide for a student with a disability, plaintiff transferred to a lunchroom worker/custodian position because the student no longer needed the services of an aide and no other aide positions were available. However, she claimed that the physical demands and working conditions of the new position aggravated her medical conditions and she eventually resigned because she could not perform the job duties. She sued alleging race discrimination and failure to accommodate under the ADA. The court affirmed summary judgment because plaintiff had not shown that she had a disability. Plaintiff stated that her medical conditions included diabetes, hypertension, anemia, arthritis and back pain, but she provided no evidence about these conditions or their effect on her major life activities. The medical evidence in the record showed only that she experienced lower back strain, and she was only restricted from work temporarily. Also, the court found that she could not

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perform the essential functions of her job; the district had unsuccessfully attempted to accommodate her inability to clean bathrooms, work in the hot kitchen and do heavy lifting, but her modified job duties still did not permit her to perform the job. Finally, the court rejected plaintiff’s race discrimination claim.

253. Lewis v. Pennsylvania, 2007 U.S. Dist. Lexis 34470 (W. D. Pa. 2007)

Magistrate judge recommended that court grant in part and deny in part defendant’s motion to dismiss. Plaintiff applied for a position with the Pennsylvania State Police but was disqualified because of his diabetes. The court first held that defendants had failed to prove that venue in the Western District of Pennsylvania was improper, as there was some possibility that plaintiff would be assigned to work in that district. Addressing the motion to dismiss, the court first held that plaintiff’s state law claims must be dismissed because the 11th Amendment barred suits against state officials for violating state law in federal court. The court declined to dismiss plaintiff’s claims for violations of the ADA and the Rehabilitation Act because plaintiff had sufficiently alleged that he had a disability (under the actual disability, record of and regarded as prongs of the definition) by stating that his major life activities were substantially limited by his diabetes and his diabetes was the reason for his disqualification. Finally, the court dismissed plaintiff’s retaliation and reasonable accommodation claims because there were no allegations that he had been retaliated against or that he had ever requested or needed accommodations.

254. Rehrs v. Iams Co., 486 F. 3d 353 (8th Cir. 2007)

Appeals court affirmed lower court’s grant of summary judgment against plaintiff with diabetes. Plaintiff worked as a technician in a manufacturing plan. After the plant was acquired by defendant, a rotating shift schedule was implemented whereby employees were moved from the day to the night shift every two weeks. Plaintiff worked this schedule until he had to go on medical leave after suffering a heart attack. After he returned to work, plaintiff requested that he be allowed to work only the day shift because rotating shifts made his diabetes difficult to manage. The company denied this request, and ultimately plaintiff went on partial and then total disability leave. The appeals court agreed with the lower court that plaintiff was not qualified for the job because working a rotating shift was an essential function. It accepted defendant’s argument that, in its business judgment, it was beneficial to employees to work a rotating shift and improved their opportunities for career advancement. The court rejected as irrelevant plaintiff’s evidence that the plant could operate on a straight shift schedule and had done so in the past, stating that it would not second guess the employer’s business judgment. [note: decision below at #209]

255. Anderson v. State, 2007 U.S. Dist. Lexis 36399 (D. Ariz. 2007)

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Court granted summary judgment against plaintiff, who has diabetes and depression and worked as a child protective services specialist for the state. Plaintiff told her supervisor that the stress of her job and her caseload was interfering with her ability to manage her diabetes, and requested that her caseload be limited to 12 cases (the office average was 35). This request was initially granted, but was ultimately denied by the state as unreasonable. Plaintiff consistently refused over the ensuing months to take more than 12 cases, although her supervisors pressured her to do so and threatened to fire her if she did not take a full workload. Ultimately she took medical leave and resigned after her psychologist found that her depression rendered her incapable of working. She sued claiming the state had violated the Rehabilitation Act by failing to accommodate her and constructively discharging her. Defendant conceded that she had a disability, but argued that she was not qualified to perform her job and suffered no adverse employment action. The court agreed, finding that maintaining an average caseload of 35 cases was an essential function of her position which she was unable to perform, and finding that she was not fired or disciplined for refusing to take additional cases. The court also rejected her gender discrimination, hostile work environment, and retaliation claims.

256. Harb v. Michigan Bell Tel. Co., 2007 U.S. Dist. Lexis 38524 (E. D. Mich.

2007) Court granted defendant’s motion for summary judgment against plaintiff, who worked as a customer service representative and had diabetes, vertigo and depression. She claimed that she was denied accommodations for her attacks of vertigo and for her need to use the restroom frequently due to her diabetes, and was terminated after she took leave to treat her depression. The court found that her diabetes was not a disability under the ADA because the only effect of her diabetes reflected in the record was her need to use the restroom frequently, and she presented no evidence as to how her diabetes substantially limited any major life activities. The court did find that her vertigo and depression could be disabilities, but found that her accommodation claim failed because she never properly requested accommodations and her termination claim failed because she did not return to work at the end of her leave period, even though her leave had been extended and her physician had stated she was medically able to return to work. The court also rejected her FMLA claim because she had used all the FMLA leave she was entitled to.

257. Mawhiney v. Warren Distribution, 2007 U.S. Dist. Lexis 45195 (D. Neb. 2007)

Court granted employer’s motion for summary judgment against employee who has diabetes and back and neck pain. Employee was an accountant who had been informally working shorter hours and taking long lunches to rest his back and treat his diabetes, but believed that he was still adequately performing his job. When his supervisor learned that he had been informally changing his hours, he was required to clear any such “flextime” arrangement with his supervisor in

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advance. When he complained that his supervisor’s actions created a hostile work environment, the president of the company terminated him after an investigation. The court found that he had failed to specifically allege that he was substantially limited in any major life activity and, even if his pleadings could be read to allege a limitation in working, he had failed to present any evidence to support that claim. The court also rejected plaintiff’s age and race discrimination claims and his claim for retaliation.

258. King v. City of Madison, 2007 U.S. Dist. Lexis 50662 (W. D. Wisc. 2007)

In reviewing plaintiff’s motion to proceed in forma pauperis, court found that case was not frivolous or meritless and thus could proceed. Plaintiff had diabetes during her pregnancy (it was not clear whether it was preexisting or gestational) and also experienced severe headaches and dizzy spells. She took medical leave because of her uncontrolled diabetes and headaches, and at the end of her six months of leave she was laid off. She was later deemed medically unqualified to drive a bus (it is not clear for what reason). She claimed that she should have been reassigned to open receptionist and typing jobs with the city, and that the city refused to do so because of its disability layoff policy. The court found that she had stated a claim on which relief could be granted, despite the lack of specificity in her allegations, and allowed the case to go forward, although it denied as premature her motion for appointment of counsel. [Note: see subsequent opinion at #278].

259. McPherson v. Federal Express Corp., 241 Fed. Appx. 277 (6th Cir. 2007)

Court affirms grant of summary judgment to defendant on plaintiff’s disability discrimination claim. Plaintiff has type 2 diabetes treated with insulin and worked as a manager for FedEx. He was terminated while on medical leave, allegedly for failing to submit needed documentation of his need for leave. The district court held that he had failed to establish that he had a disability within the meaning of the ADA, and the 6th Circuit affirmed. The only major life activities the court considered on appeal were seeing and self-care (the court found he had abandoned his argument, raised at the trial court, that he was substantially limited in eating). He failed to submit any evidence that he had permanent eye damage, but showed only that he had had vision problems at one time but that his vision was improving. As for the activity of caring for himself, the court found no substantial limitation despite his need for multiple blood glucose checks and insulin injections each day, finding that he had failed to introduce any evidence showing how these treatment needs impacted his ability to care for himself. [note: prior district court opinion at #201]

260. Vazquez v. Laredo Transit Mgmt., 2007 U.S. Dist. LEXIS 60216 (S. D. Tex.

2007)

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Court granted summary judgment to defendant against plaintiff bus driver, who has type 2 diabetes treated with insulin and oral medications. Plaintiff took leave to recover from a non-work-related injury, and after being out on leave for a year was terminated because his doctor could not predict when he would be able to return to work and said that it might be as long as six months. He sued, alleging disability and age discrimination. The court held that his diabetes did not limit any of the major life activities he claimed were limited (walking, thinking, eating/drinking, caring for himself and working). As to walking, evidence that he had had toes amputated and used special orthopedic shoes was insufficient because his balance was unaffected and he did not limp. As for eating and drinking, the court found that he had only alleged that he needed to monitor his diet to avoid certain foods (such as sugar), and common dietary restrictions are insufficient to show a substantial limitation. He failed to introduce any credible evidence of how his diabetes impacted his ability to think, care for himself, and work. The court also held that plaintiff was not qualified because he was unavailable to work, and that the accommodation he requested (indefinite leave) was unreasonable. Finally, the court rejected his age discrimination claims.

261. Greenberg v. BellSouth Telecommunications, Inc., 498 F. 3d 1258 (11th Cir.

2007) Appeals court affirmed grant of summary judgment against employee who was terminated from his position installing telephone equipment because his weight exceeded the safe load limit f company ladders and other equipment he needed to climb. Plaintiff is morbidly obese and has diabetes, hypertension and hypothyroidism. The appeals court affirmed the lower court finding that plaintiff’s conditions did not substantially limit him in caring for himself or working. Although plaintiff testified that he was limited in caring for himself because of worries that his blood glucose levels might fall, his treating physician testified that his diabetes placed no limitations on his daily activities. There was no evidence that any of his other conditions constituted a substantial limitation, an no evidence that he was prevented from working in a class of jobs or a broad range of jobs.

262. Van v. Miami-Dade County, 509 F. Supp. 2d 1295 (S. D. Fla. 2007)

Court granted summary judgment against plaintiff, who worked as a correctional officer supervising and transporting inmates at county correctional facilities. Plaintiff was diagnosed with type 2 diabetes (not treated with insulin) in 1992, but worked without incident until April 2005, when during a biannual medical examination a county doctor disqualified him from full duty because of a high A1C value. The doctor believed that anyone with an A1C higher than 8.0 was not qualified to work as a correctional officer. Plaintiff submitted documentation from his treating physician that he was fully capable of working, but the county did not change its position. Plaintiff attempted to lower his A1C but ultimately after nearly a year in light duty positions and on leave he resigned. He admitted

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that his diabetes did not actually limit any of his major life activities, but argued that he was regarded as substantially limited in working by the county and its doctor. The court rejected this argument because plaintiff had not presented any evidence that the county believed anything more than that he was unable to do his particular job. It distinguished Rodriguez v. ConAgra Grocery Products (#200, above) because in this case plaintiff was permitted to perform light duty jobs and was not regarded as unable to do any jobs with the defendant. The court also rejected plaintiff’s argument that he could have been accommodated with a permanent light duty position, since it was county policy that no permanent light duty positions existed.

263. Boice v. Southeastern Pa. Transp. Auth., 2007 U.S. Dist. Lexis 74566 (E. D. Pa.

2007)

Court denied employer’s motion for summary judgment against bus maintenance manager with diabetes and a shrapnel wound. Plaintiff alleged that the employer failed to accommodate his disability by denying him a parking space near the building and by transferring him from the day shift to the evening shift, which made controlling his diabetes more difficult. He also claimed that he was terminated because of his race. The court first assumed that he had a disability and as the defendant did not dispute that he was a qualified individual with a disability, the court assumed that he had met his burden on this issue. The employer argued that he had failed to request a reasonable accommodation. The court rejected this argument because he had made informal requests to his supervisor that his parking space and shift be changed, despite the fact that his deposition testimony suggested that he did not consider these changes to be “accommodations”. Therefore the court denied summary judgment on his reasonable accommodation claim. However, it held that his application for veterans and social security benefits as of the date of his termination precluded any award of reinstatement or lost wages, and also dismissed his race discrimination claim.

264. Campbell v. UPS, 2007 U.S. Dist. Lexis 75255 (W. D. Pa. 2007)

Court granted summary judgment against employee, a package car driver with UPS who has diabetes treated with insulin. Plaintiff was removed from his position as a driver because of federal regulations that prevented him from driving vehicles larger than 10,000 pounds. He subsequently applied for and was accepted into UPS’ diabetes protocol, which permits employees with diabetes to drive vehicles smaller than 10,000 pounds, but no routes in smaller trucks were available. After he filed suit, he was returned to his former job when he received a diabetes exemption from the federal government, allowing him to drive larger vehicles. The court found that he did not have a disability because he admitted that when he was taking insulin his diabetes did not limit any major life activities or limit his job performance. Also, UPS did not regard him as disabled merely because it believed he was unable to work as a package car driver, since it offered

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him other part time positions (which he declined). The court also rejected plaintiff’s retaliation claim and his claims against his supervisors.

265. Matricardi v. Astro Shapes, Inc., 2007 U.S. Dist. Lexis 75468 (N. D. Ohio 2007)

Court rejected claim by plaintiff, who has diabetes treated with insulin, that he was terminated because of absences related to his diabetes. Plaintiff had numerous absences over a period of several years (many of them unexcused and not properly called in)). His attendance problems began before his diagnosis, and some of his subsequent absences were not related to diabetes. Pursuant to company policy, he was disciplined for accumulating attendance points, given a last chance agreement, and subsequently terminated when he had further unexcused absences. The court found that attendance was an essential function of plaintiff’s job, even though it was not specifically listed in the job description, and found that plaintiff’s request that his diabetes-related absences be excused was unreasonable because he had already exhausted his entitlement to FMLA leave and his absences were unscheduled and unpredictable. There was no reason to reach the issue of whether plaintiff had a disability, since he was not qualified for the job. The court also rejected his retaliation claim because plaintiff did not request any accommodation until after the termination decision was made.

266. Gillette v. City of Wellston, 2007 U.S. Dist. Lexis 83060 (E. D. Mo. 2007)

Court granted summary judgment against pro se plaintiff, a city maintenance worker who claimed the city failed to promote him and terminated him. Plaintiff, who failed to respond to defendant’s summary judgment motion, admitted at his deposition that diabetes did not affect his job performance in any way and that he had no reason to believe he was fired due to diabetes. Accordingly, the court found he could not prove a prima facie case of discriminatory termination, even assuming that he had a disability. Likewise, plaintiff offered no evidence that he was denied a promotion because of his diabetes, and thus this claim failed as well. Finally, the court rejected plaintiff’s retaliation claim because there was no evidence he had engaged in any protected activity related to his diabetes.

267. Walker v. City of Vicksburg, 2007 U.S. Dist. Lexis 83974 (S. D. Miss. 2007)

Court denied summary judgment against police officer who has type 2 diabetes treated with oral medications (not insulin). Plaintiff experienced several incidents of dizziness and blackouts while driving his patrol car on the night shift. When he went to see his physician, he was temporarily put on medical leave while his medication was adjusted, and subsequently his diabetes stabilized. He requested, based on his physician’s opinion, that he be assigned to the day shift to help better control his diabetes. Shortly after he returned to work (with his day shift request still unresolved), the city learned of his blackouts and suspended him pending the receipt of further medical information. He was returned to work several months later, but he sued claiming that the city discriminated against him by failing to

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accommodate his diabetes through a shift change and suspending him because of diabetes. The city sought summary judgment on the ground that plaintiff did not have a disability. Plaintiff claimed he was substantially limited in eating, caring for himself, and thinking. The court held that he was not substantially limited in eating based merely on evidence of his need to eat at certain times and to control portion sizes; it distinguished other cases finding plaintiffs with diabetes disabled because those plaintiffs used insulin and were subject to more significant blood glucose fluctuations. The court then found that plaintiff had raised a triable issue as to the major life activities or thinking and caring for himself because of the blackouts and dizzy spells he experienced on the job, during which he sometimes woke up in unfamiliar places without knowing how he got there. [Note: Subsequent district court decision at #273.]

268. Leitch v. MVM, Inc., 538 F. Supp. 2d 891 (E. D. Pa. 2007)

Court granted summary judgment to U.S. Marshals Service and private contractor who employed four plaintiffs as court security officers (CSOs) and terminated two of them because the USMS believed they had uncontrolled diabetes (the remaining plaintiffs had other disabilities). The court first held, relying on Wilson v. MVM (#241, above) that plaintiffs had been provided adequate procedural due process by being given an opportunity, prior to their termination, to submit additional medical evidence about their condition. The court then held that plaintiffs’ ADA and Section 504 claims failed because they could not show that they had a disability. Plaintiffs claimed that the USMS regarded them as substantially limited in working because of their medical disqualification, but the court found nothing in the record to show that the USMS regarded them as anything more than unable to perform the specific essential functions of the CSO position. Plaintiffs’ attempts to use testimony of the USMS’ examining doctor to prove they were disabled failed because the doctor confined his opinions to the particular job and did not offer opinions about plaintiffs’ ability to work more generally.

269. Easter v. Transport Service Co., 2007 U.S. Dist. Lexis 88503 (E. D. Tenn.

2007) Court granted trucking company’s motion to dismiss against plaintiff, who has type 2 diabetes. Plaintiff worked as a long-haul truck driver for defendant for over 15 years, and had continued to drive for several years while his diabetes was being treated with diet and oral medications. After he began using insulin, he was still able to obtain DOT medical certification, but when his employer discovered that he was using insulin he was terminated, allegedly because he was no longer qualified to drive in interstate commerce and because he had concealed his insulin use from the company. He later obtained a state waiver allowing him to drive intrastate, but the company refused to rehire him. He sued, claiming the company violated the ADA by terminating him and by failing to accommodate him with an intrastate-only driving job. The court granted the company’s motion to dismiss,

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first finding that he did not have a disability because his inability to drive interstate did not limit him in the major life activity of working, and he did not claim that any other major life activities were limited by his diabetes. He also could not prove that he was regarded as disabled merely by alleging that the company knew of his diabetes and believed he was unable to do his job. Even assuming he had a disability, the court also held that he was unqualified because he could not obtain DOT medical certification, and that his failure to disclose his insulin use represented a legitimate nondiscriminatory reason for his termination. Next, the court held that the company had no duty to accommodate him by giving him only intrastate work, as interstate driving was an essential function of his job, so his failure to accommodate claim failed. The court also rejected his claims under HIPAA, as that statute provided no private right of action, and dismissed his state law claims without prejudice.

270. Jordan v. Mem’l Hermann Southeast Hosp., 2007 U.S. Dist. Lexis 91013 (S. D.

Tex. 2007) Court granted summary judgment to defendant hospital. Plaintiff, who has diabetes, had worked for over 20 years as a hospital security guard when he resigned due to poor relations with his supervisor. He sued, claiming he was constructively discharged and subjected to discrimination and retaliation basedon his age and disability. To support his constructive discharge claim, he argued that his supervisor had made a number of insulting and degrading comments about his age and disability, including comments to other workers about his need to take time off to treat complications of diabetes. However, the court found that his allegations did not rise to the level of a hostile work environment and thus could not support a constructive discharge claim. Accordingly, his discrimination and retaliation claims failed because he had voluntarily resigned and not been constructively discharged.

271. Husinga v. Federal Mogul Ignition Co., 519 F. Supp. 2d 929 (S. D. Iowa 2007)

Court granted summary judgment against plaintiff, who has type 2 diabetes treated with oral medications and worked in defendant’s manufacturing plant. Plaintiff was absent for more than a week due to bronchitis and fluctuations in his blood glucose levels caused by the illness. He was terminated when he failed to apply for a leave of absence within the time period required by the collective bargaining agreement. The court first found that plaintiff could not prove that he had a disability under the ADA. Although the plaintiff had to limit his diet to 1800 calories, could not skip meals, could not consume sugar and had to limit carbohydrate consumption, the court found that these limitations were analogous to dietary restrictions shared by large numbers of people and could not constitute a substantial limitation in eating. Plaintiff’s need to monitor his blood glucose did not impose a substantial limitation because his doctor testified that he need only do so once a week (even though he in fact checked his blood glucose every day). Finally, the fact that plaintiff experienced hyperglycemia and hypoglycemia did

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not show that he had a disability because plaintiff failed to introduce any evidence as to how often he experienced these conditions, and indeed had only experienced one incident of serious hypoglycemia at work. The court distinguished cases like Lawson (#88) and Fraser (#149) because plaintiff does not use insulin and because there was no evidence of the need for such an extensive diabetes monitoring regimen here. The court then found that, even if plaintiff was disabled, his claim failed because the reasons for his termination (failing to follow procedures for requesting a leave of absence) were legitimate and not pretextual, and because he never requested any reasonable accommodations. His FMLA claim was also rejected because he never made a request for leave.

272. Johnston v. Mid-Michigan Med. Ctr., 2008 U.S. Dist. Lexis 1125 (E. D. Mich.

2008)

Court denied defendant’s motion for summary judgment against plaintiff, who had worked as a biomedical equipment technician for 16 years at defendant hospital. During the year prior to his termination, plaintiff experienced five episodes on the job when he was slow to respond and appeared incoherent; all these incidents were treated and did not require medical attention. Plaintiff also had his driver’s license suspended due to a hypoglycemic episode he experienced while driving outside of work hours. His manager documented performance issues related to the speed and accuracy of his equipment repairs and his time management; plaintiff ultimately was terminated based in part on an incident where he had a hypoglycemic episode while performing a repair. He sued, claiming that defendant regarded him as disabled by his diabetes (he did not raise claims of actual disability). The court found that plaintiff had raised a triable issue of fact as to whether the defendant, and specifically his manager, regarded him as disabled. The court noted a tendency of the manager to ascribe all of plaintiff’s alleged performance issues to his diabetes, e-mails the manager sent to human resources expressing concern about plaintiff’s diabetes and its effect on his job, and the fact that plaintiff was terminated without any attempt to medically evaluate his ability to perform his job. The court also noted contradictions between the manager’s statements about plaintiff’s diabetes and his later deposition testimony, when he claimed he never had concerns about plaintiff’s diabetes, as evidence that defendant regarded plaintiff as disabled and also as evidence of pretext to rebut defendant’s legitimate nondiscriminatory reason for his termination (performance problems). The court also denied defendant’s summary judgment motion on plaintiff’s state law claims, for similar reasons.

273. Walker v. City of Vicksburg, 2008 U.S. Dist. Lexis 2173 (S. D. Miss. 2008)

Court granted defendants’ supplemental motion for summary judgment on plaintiff’s ADA claim. Court had previously denied summary judgment on this claim. (For factual background and prior opinion, see #267 above). While not questioning or invalidating its earlier reasoning, the court held that plaintiff could not prove that he had a disability because the blackouts and seizures caused by his

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diabetes ceased after he began taking new medication (Glyburide) and lasted only about three months. The court held that this was not enough time for a limitation to be considered “permanent or long term” for purposes of coverage under the ADA. The court also dismissed claims against the individual defendants because the ADA does not permit individual liability.

274. Finley v. Lake Cumberland Community Action Agency, 2008 U.S. Dist. Lexis

6098 (W. D. Ky. 2008) Court grants summary judgment on plaintiff’s disability discrimination claim. Plaintiff worked as an assistant at a Head Start program, and her duties included driving a bus. When she became unable to drive the bus because she could not meet federal physical requirements (for reasons not stated in the opinion), she was accommodated by being allowed to work as a bus monitor but not being required to drive the bus. Later, her doctor submitted a letter stating that she could neither drive nor ride the bus due to her health problems; since her bus duties were a significant part of her job she was subsequently terminated. The court held that she could not raise a genuine issue of fact as to whether she had a disability under the ADA. Although she had been diagnosed with diabetes and sleep apnea, and had a history of seizures, she did not submit any medical evidence or records and did not identify how her conditions limited any major life activities. She court noted that her inability to drive or ride a bus, by itself, could not constitute a substantial limitation.

275. Berube v. Great Atl. & Pac. Tea Co., 2008 U.S. Dist. Lexis 13442 (D. Conn.

2008) Court granted summary judgment against plaintiff, who has diabetes (type and medication usage unknown) as well as high blood pressure and a history of skin cancer. He worked as a liquor store manager and was transferred to another store and ultimately terminated, allegedly because he failed to use the proper inventory management system required by the company. He filed suit alleging age and disability discrimination, but the court rejected his claim because he offered no evidence that his termination was related to his age or disability. He merely alleged that his supervisors knew of his medical conditions, and speculated that the actions against him were motivated by a desire to avoid medical costs. The court held that such speculation, without concrete evidence, could not give rise to a discrimination claim. The court also dismissed his age discrimination claim and declined to exercise jurisdiction over his state law claims.

276. Wilmington v. SBC, 2008 U.S. Dist. Lexis 15944 (N. D. Ill. 2008)

Court grants summary judgment to defendant telephone company against plaintiff, who has diabetes treated with insulin. Plaintiff was disciplined numerous times for performance problems. She sued alleging sex and disability discrimination, as well as violation of the FMLA. The court assumed that her

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diabetes constituted a disability, but found no evidence that the employer had failed to accommodate the plaintiff’s diabetes. She received extensive leave to care for her diabetes and attend medical appointments, and permitted her to attend insulin pump training during work hours. Plaintiff could not show that she was denied any accommodation which she requested. The court rejected plaintiff’s FMLA claim because, even though two of her applications for FMLA leave were initially rejected, they were subsequently granted and she was not penalized for taking this leave. Her sex discrimination and retaliation claims were also dismissed.

277. Robbins v. WXIX Raycom Media, 2008 U.S. Dist. Lexis 17028 (S. D. Ohio

2008) Court allowed plaintiff to proceed to trial on claim that defendant failed to accommodate her diabetes and retaliated against her for her accommodation requests. Plaintiff worked as a traffic manager for defendant television station. When she was diagnosed with type 2 diabetes (not treated with insulin), she requested that her employer accommodate her disability by reassigning non-essential job functions to other employees so that she could limit her working hours to 45-50 per week. Her supervisor ignored her requests and in fact assigned her additional work, and s he ultimately felt she had no choice but to resign. The court first held that she had raised a genuine issue of fact as to whether she had a disability. The court noted that her diabetes required her to eat three meals a day at scheduled times, did not permit her to miss meals, and required her to constantly monitor her blood glucose levels so that she could respond appropriately and avoid hyperglycemia or hypoglycemia. The court held that she was not required to show that she used insulin or that she had experienced severe hypoglycemia in order to survive summary judgment, and distinguished the effects of her diabetes from the kinds of dietary restrictions faced by much of the general populations because the consequences of failing to take care of her diabetes were much more severe. As to her retaliation claim, the court dismissed her claim under the ADA because her EEOC charge did not contain facts that would lead to an investigation of retaliation, and thus the court lacked jurisdiction. However, her retaliation claim under state law could proceed. On the merits of the retaliation claim, a jury could find that her reasonable accommodation request caused the employer to retaliate by giving her more work, and that this made conditions so intolerable that she was constructively discharged.

278. King v. City of Madison, 2008 U.S. Dist. Lexis 19311 (W. D. Wisc. 2008)

Court granted summary judgment against plaintiff, a city bus driver who has diabetes along with severe migraines. After she was medically disqualified from driving a bus, she sought accommodation by reassignment to another city position, and sued after she was terminated. The court first found that she did not have a disability under the ADA and the Rehabilitation act. The only major life activity she alleged to be limited was working, and the court found that her

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conditions were controlled by medication and she was only limited in her ability to drive a bus, which did not count as a broad range or class of jobs. The court also found that, even if she was disabled, the city had no duty to transfer her to another position, as there were no positions within her unit for which she was qualified and a transfer outside the unit would have violated a collective bargaining agreement. [Note; see #258 for prior opinion denying motion to dismiss]

279. Gaffney v. Dept. of Information Technology and Telecomms., 536 F. Supp. 2d

445 (S. D. N. Y. 2008) Three plaintiffs who were employed by city public cable television station sued alleging race and age discrimination after they were terminated and not rehired as part of a reorganization due to budget cuts. One of them, who has diabetes, also raised a disability discrimination claim under the ADA and state and local law. The court found that this plaintiff could not show that he had a disability under the ADA, because the only evidence presented on the limitations caused by his diabetes was that he fell asleep briefly at work about once every nine to eleven months, sometimes experienced fatigue, and had certain dietary restrictions. The court held that this was not enough to create an issue of fact as to whether he had a disability. However, plaintiff could establish a disability under New York law, which has a more expansive definition of disability than the ADA. The court held that he had established a prima facie case of discrimination as to the refusal to hire him for the new city position, since the city had offered no legitimate nondiscriminatory reason supporting its decision, but that he had produced no evidence that his termination from the old position was a pretext for disability discrimination rather than a decision made based on budget constraints.

280. Bennett v. Mukasey, 2008 U.S. Dist. Lexis 24194 (D. Alaska 2008)

Court granted summary judgment against plaintiff, who had worked as a U.S. Marshal for 18 years when he was diagnosed with diabetes (treated with insulin). He was removed from his position and required to submit logs of his blood glucose levels for nearly a year before being returned to full duty. He sued, alleging that the Marshals Service discriminated against him by forcing him to stay out on medical leave, despite his treating physician’s opinion that he could perform his job safely, and use up his vacation and sick time. The court dismissed this claim because he had not contacted an EEO counselor within the 45 day time limit. The discriminatory act occurred, at the latest, when his request to return to work was denied in writing, more than eight months before he contacted a counselor. He argued that a discrete act of discrimination occurred when he was required to keep blood glucose logs as a condition of his return to work, which occurred within the 45 day time frame. However, the court held that requiring blood glucose logs does not, by itself, amount to an act of discrimination since it relates to the Marshals’ service job performance standards.

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281. Brannon v. Luco Mop Co., 521 F. 3d 843 (8th Cir. 2008) Court affirmed grant of summary judgment against plaintiff, who worked as a packer at defendant’s plant. Plaintiff has diabetes, and was terminated after missing several months of work due to surgery following a toe infection and because of her alleged decline in performance. The court first held that the district court did not err in refusing to strike portions of the evidence submitted by defendant for failure to comply with local rules. Next, the court held that plaintiff could not establish a prima facie case because she was not qualified for the position due to her extensive absences. The court emphasized that she had missed 40 of the 77 days prior to her termination, and that her return date was unpredictable because her doctor had submitted several letters to the employer delaying her return to work date. Although she requested a reasonable accommodation of additional leave, the court found this was unreasonable as a matter of law and in any event there was no evidence that additional leave would have allowed her to return to performing her duties. [Note: lower court opinion at #239]

282. Bosse v. Chertoff, 2008 U.S. Dist. Lexis 27415 (D. Mont. 2008)

Summary judgment granted against plaintiff, an INS inspector who has type 2 diabetes (treated with medication), depression and gout. He used a large number of sick days (prior to his diabetes diagnosis) and the INS began to suspect that he was committing sick leave abuse, so he was placed on restrictions requiring him to submit medical documentation for any sick leave taken. He failed to comply with these restrictions, and was ultimately terminated for taking unauthorized leave. He sued claiming violations of the Rehabilitation Act for the leave restriction and the termination, but the court held that he had failed to exhaust his administrative remedies for most of his claims because he had not contacted an EEO counselor within the 45 day time limit. Any claims that had been properly exhausted had to be dismissed because plaintiff could not prove he had a disability under the Rehab Act. He submitted no evidence of how his diabetes limited his major life activities, and admitted that his diabetes was well controlled and did not limit his activities. The court also noted evidence that he had exaggerated his symptoms and their impact (though this mostly seemed to relate to his psychiatric condition rather than his diabetes). He also did not have a record of a disability, and the INS did not regard him as disabled (in fact, they suspected that he was not disabled and was malingering). Even if he had a disability, the INS had a legitimate nondiscriminatory reason for his termination (suspected sick leave abuse and failure to follow required procedures for requesting leave), and he submitted no evidence of pretext.

283. Bolin v. Japs-Olson Co., 2008 U.S. Dist. Lexis 29129 (D. Minn. 2008)

Three press operators sued their employer after they were terminated, allegedly for poor performance. One of them, who has type 2 diabetes treated with

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medication, claimed that he was terminated because of his disability, while the other two asserted that they were terminated because of their association with him. All three also brought age discrimination claims and claims under the Fair Labor Standards Act. The court found that the plaintiff with diabetes (who also had congestive heart failure and hypertension) did not have a disability because his diabetes was controlled with diet and medication The court also noted that he was cleared to work without restriction despite his conditions and had been accommodated by the employer (though what accommodations were made for diabetes is unclear). The opinion did not discuss how these conditions affected major life activities. Because this plaintiff did not have a disability, the associational discrimination claims of the other two plaintiffs also failed. The court also granted summary judgment on the FLSA claims but denied summary judgment on the age discrimination claims.

284. Brady v. Potter, 2008 U.S. App. Lexis 8373 (6th Cir. 2008)

Court affirms grant of summary judgment to U. S. Postal Service against plaintiff, who has type 1 diabetes. Plaintiff worked as a mail distribution clerk and had several episodes of hypoglycemia while at work, one of which required an ambulance to be called. She alleged that she was constructively discharged in violation of the Rehabilitation Act and the FMLA. The court held that she did not have a disability, noting that her diabetes placed only “slight” limitations on her because she could regularly attend work. The court also cited her testimony before the EEOC that her diabetes was easily controlled through the use of her insulin pump and “simple precautions” like eating an appropriate diet, exercising, and keeping sodas on hand to treat hypoglycemia. The court rejected her assertion that she was substantially limited in working because she had never been subject to significant work restrictions, and stated that she was not substantially limited in eating because there were no specific restrictions on what she could eat and she was only required to monitor the quantity of what she eats. Next, the court held that she was not regarded as disabled merely because the USPS knew of her disability and required her to obtain medical review before returning to work after an absence. The court also rejected her FMLA claim because she had failed to submit the proper documentation to support her requests for leave. [Note: opinion below at #243.]

285. Torres v. Alltown Bus Services, 2008 U.S. Dist. Lexis 34885 (N. D. Ill. 2008)

Court granted summary judgment, a bus driver who has diabetes and was terminated following an accident, allegedly because the employer believed he had given a false report about the accident. He sued alleging that his termination was the result of discrimination on the basis of age, race, color, national origin, and disability, and also for retaliation and intentional infliction of emotional distress. As to his disability claim, the court held that he had not presented any evidence that he was substantially limited in any major life activities beyond the “vague” allegation that he had diabetes. He failed to provide any evidence about how his

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diabetes impacted his activities, and this was grounds for granting summary judgment. The court also rejected plaintiff’s other federal claims and declined supplemental jurisdiction over his state law claim.

286. Varner v. Nicholson, 2008 U.S. Dist. Lexis 37156 (E. D. Mich. 2008)

Court granted summary judgment against plaintiff, who has diabetes and depression and worked for a Veterans Administration hospital. She was terminated, allegedly for refusal to carry out an order, rude conduct, and unexcused absences. She appealed her termination to the Merit Systems Protection Board, which upheld her termination, and filed suit challenging this decision and also asserting a disability discrimination claim under the Rehabilitation Act. The court first held that she did not have a disability because she was not substantially limited in working (the only major life activity at issue). She had no medical restrictions on her ability to work and had worked at several other jobs in hospitals and nursing homes since her termination. The court also affirmed the MSPB’s determination that her termination was proper.

287. McWilliams v. Latah Sanitation, Inc., 2008 U.S. Dist. Lexis 40555 (D. Idaho

2008)

Court adopts magistrate’s recommendation denying defendant’s motion for summary judgment. Plaintiff, who has diabetes treated with insulin, had a heart attack and missed approximately six weeks of work. Less than two months after he returned to work without restrictions, he was terminated for excessive absenteeism. The court found that his diabetes did not constitute a disability under the ADA because it was controlled with insulin. The court emphasized that plaintiff had testified that his diabetes did not limit his ability to perform tasks at work, and described the symptoms of his diabetes as minor. The court did not specifically address how plaintiff’s diabetes limited any major life activities other than working, and the bulk of the opinion focused on whether his heart condition was a disability. On this question, the court held that while there was no evidence that plaintiff was disabled after he returned to work, primarily because he was not placed under any work restrictions, the court could not decide as a matter of law that plaintiff did not have a disability during the six weeks he was recuperating from the heart attack. The court also held that plaintiff did not have a record of a disability based on his diabetes, since nothing in the medical records suggested that his diabetes substantially limited a major life activity.

288. Verna v. Public Health Trust of Miami-Dade County., 2008 U.S. Dist. Lexis

40602 (S. D. Fla. 2008)

Court granted summary judgment against, plaintiff, who worked as an associate risk manager for a hospital and was terminated as part of a large-scale reduction in force. Plaintiff has type 1 diabetes and experienced complications including

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neuropathy and kidney disease; her neuropathy made it difficult for her to walk distances due to cramping and pain. She sued alleging discrimination based on race, national origin and disability, bringing her disability claims under the Rehabilitation act and Florida state law. The court held that she did not have a disability under either the state law (which used the same definition of disability as the ADA) or the Rehab Act. Here limitations on walking were not so severe as to constitute a disability, even though she had difficulty walking between buildings and experienced pain while walking, because she did not walk with a limp or use a mobility aid. The record was devoid of evidence that would show a substantial limitation in working. The court noted that plaintiff was able to perform daily activities and care for herself, and could “write, drive, … see, hear, speak and communicate”. The court emphasized that plaintiff led an active lifestyle, did not have the outward appearance of a disabled person. Furthermore, she was not regarded as disabled, since there was no evidence about any perceptions about her disability held by defendant or any of its employees. Even if she were disabled, she could not establish a prima facie case because she produced no evidence that her termination was due to her diabetes, and could not rebut the employer’s legitimate non-discriminatory reason (the reduction in force). The court also rejected her other claims.

289. Caspersen v. Monarch Broadcasting, Inc., 2008 U.S. Dist. Lexis 41269 (W. D.

OKla. 2008)

Court granted summary judgment against plaintiff sales representative who has diabetes after he was terminated, allegedly for poor attitude and insubordination. After his termination, plaintiff sued, claiming discrimination based on disability and age. The court held that he could not prove he had a disability within the meaning of the ADA. The court cited several cases finding that individuals with diabetes did not have disabilities, and stated that diabetes did not generally qualify as a disability. The court hen held, without further analysis, that plaintiff had not proved he had a disability. The court also said that plaintiff had produced no evidence that his diabetes was related to his termination, and pointed to evidence that other sales employees of the defendant also had diabetes, and several had higher health care costs than plaintiff did. The court also rejected plaintiff’s age discrimination claim.

290. Keener v. Mansfield, 2008 U.S. Dist. Lexis 43738 (S. D. Ohio 2008)

Court granted summary judgment against plaintiff, who has diabetes, hypertension, hypothyroidism, and several other conditions. Plaintiff worked as a nurse in a Veterans Administration clinic. She filed an EEO complaint and later a pro se lawsuit after she was transferred from one department to another, allegedly as a result of unprofessional conduct toward a physician on staff. Defendant moved for summary judgment on the ground that she could not prove a prima facie case of discrimination, and the court agreed. Because plaintiff failed to respond to the summary judgment motion, she had failed to raise any issues of

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material fact. Even assuming that the allegations in her complaint could be used to respond to summary judgment, she had not alleged that her medical conditions substantially limited any of her major life activities. Plaintiff also failed to show that the transfer was an adverse employment action, or that she was treated less favorably than similarly situated employees because of her medical conditions. Plaintiff’s age discrimination claim was also dismissed.

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State Court Cases 1. Fraser Shipyards, Inc. v. DILHR, 13 FEP Cases (BNA) 1809 (Wis. Cir. Ct. 1976)

(discharge and failure to hire ship welder candidates) Employer violated Wisconsin Fair Employment Act in refusing to hire and in discharging person with diabetes because there was no individualized assessment of the individuals.

2. Devaux v. State of Oregon, 68 Or. App. 322 (Or. Ct. App. 1984)

(failure to hire steward candidate at state penitentiary) Court held plaintiff, who had a record of high blood pressure, diabetes, and being overweight, failed to allege that those physical conditions substantially limited a major life activity, and thus failed to state a claim under applicable state statute. However, second count, in which plaintiff incorporated the allegations of the first count and added an allegation that employer regarded plaintiff as having an impairment that would prevent him from being employed, did state a cause of action under the statute.

3. Kelly v. Town of North Hempstead, 103 A.D.2d 768 (N.Y. App. Div. 1984)

(discharge of office clerk in animal shelter) Evidence failed to establish that diabetes would adversely affect plaintiff’s ability to perform her duties as a clerk or otherwise warrant dismissal from that position.

4. Agnello v. Adolph Coors Co., 689 P.2d 1162 (Colo. Ct. App.), aff’d, 695 P.2d

311 (Colo. Ct. App. 1984)

(failure to hire lab technician with type 1 diabetes) Employee applicant for different work shift filed complaint against employer alleging discrimination because of her diabetes. After physical examination pursuant to an agreement between Civil Rights Commission and employer that any determination as to applicant’s capabilities should be based on physician’s examination, physician recommended that plaintiff not be hired. Court held that Commission did not act arbitrarily or with an improper motive in approving and confirming decision.

5. Smith v. DMV, 163 Cal. App. 3d 321 (Cal. Ct. App. 1984)

(person with type 1 diabetes is eligible for truck/bus driver’s license) Type 1 diabetes should not automatically disqualify a garbage truck driver from obtaining a truck/bus driver’s license. Such persons should be evaluated on a case-by-case basis.

6. Burdick v. Bd. of Retirement, 200 Cal. App. 3d 1248 (Cal. Ct. App. 1988)

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(failure to hire clerk typist with type 1 diabetes) Pre-employment waiver of rights to disability retirement not valid where employee’s pre-employment controlled diabetes was not a job-related impairment. Waiver was an impermissible condition of employment.

7. Spicer v. Martin Brower Co., 177 Ga. App. 197 (Ga. Ct. App. 1985)

(discharge of warehouse employee). Conflicting medical opinions concerning ability of employee to work safely were given in good faith and could be relied on to support discharge for potential safety problem.

8. Kraft v. Bechtel Power Corp., 483 So. 2d 56 (Fla. Dist. Ct. App. 1986)

(failure to hire for job at nuclear power plant). Court, assuming that plaintiff’s diabetes was a “handicap,” held that it was conclusively demonstrated that exclusion of plaintiff from sensitive and dangerous duties at nuclear power plant was based upon fact that his condition rendered him unable to meet bona fide occupational qualification reasonably necessary for performance of particular employment.

9. Jackson v. State, 544 A.2d 291 (Me. 1988)

(failure to hire school bus driver with type 1 diabetes). State’s blanket prohibition on licensing persons with insulin-dependent diabetes as school bus drivers violated Rehabilitation Act. State did not dispute that insulin-dependent diabetes is “handicap” within meaning of Act. Court held plaintiff was “otherwise qualified” after individualized assessment.

10. Shirilla v. City of Detroit, 208 Mich. App. 434 (Mich. Ct. App. 1995)

(failure to hire person with type 1 diabetes for bus driver job) Court affirms summary judgment for the employer. Michigan law was implicitly repealed by the Motorbus Transportation Act to the extent that it incorporated federal regulations placing a blanket prohibition on employment of people with insulin-treated diabetes in motor carrier driving positions. Court refuses to grant any kind of waiver because the individual was well controlled and able to perform the job.

11. Com. Dep’t of Transp. v. Tinsely, 128 Pa. Commw. 594 (Pa. Commw. Ct. 1989)

(revocation of license for school bus driver with type 2 diabetes) Revocation of license of school bus driver with insulin-dependent diabetes violated Rehabilitation Act. State did not contest plaintiff’s status as “handicapped individual.” Court held person was “otherwise qualified” after individualized assessment.

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12. Miller v. Sioux Gateway Fire Dep’t, 497 N.W.2d 838 (Iowa 1993)

(discharge of airport firefighter with type 1 diabetes) Firefighter’s insulin-dependent diabetes was disability within meaning of Iowa Civil Rights Act but could not be reasonably accommodated.

13. Sigurdson v. Bolander, 511 N.W.2d 482 (Minn. Ct. App. 1994), rev’d, 532

N.W.2d 225 (Minn. 1995)

(failure to hire truck mechanic candidate with type 1 diabetes) Court reversed defendant’s summary judgment as to a disability discrimination claim. Court held plaintiff established a prima facie case of disability discrimination both directly and indirectly by showing that his diabetes is a physical impairment that materially limits his major activities.

14. Norwood v. Litwin Engineers & Constructors, Inc., 962 S.W.2d 220 (Tex. App.

1998).

Reversing the trial court’s grant of summary judgment in favor of defendant, the Court of Appeals of Texas finds that jury questions exist as to whether plaintiff, a person with insulin-treated diabetes dealing with various complications, is substantially limited in any major life activity and whether defendant knew that plaintiff had diabetes when defendant terminated him.

15. Leonard v. Metropolitan Life Ins. Co., 318 N.J. Super. 337 (N.J. Super. Ct. App.

Div. 1999)

Reversing trial court’s grant of summary judgment, court finds that plaintiff presented sufficient evidence to establish a hostile work environment claim. Court reasons that just two incidences (if severe enough) of hostile behavior toward plaintiff because of his diabetes present a jury question as to whether such remarks produced a hostile work environment.

16. Riebold v. Eastern Casualty Insurance Co., No. 97-00306, 1999 Mass. Super.

LEXIS 112 (Mass. Super. Ct. 1999)

Plaintiff with insulin-treated diabetes does not survive summary judgment where court finds that plaintiff failed to provide evidence that defendant terminated her because of diabetes rather than because of her poor performance at work.

17. Deschene v. Pinole Point Steel Co., 76 Cal. App. 4th 33, 1999 Cal. App. LEXIS

971 (Cal. Ct. App. 1999)

Plaintiff, who has diabetes, survives motion for summary judgment because a jury could find reasons given for his termination were pretextual. While issue of

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whether plaintiff has a disability under the ADA is not raised, court notes that the paragraph in Sutton about diabetes is dicta.

18. Davis v. Computer Maint. Serv., Inc., 1999 Tenn. App. LEXIS 661 (Tenn. Ct.

App. 1999)

Summary judgment granted to defendant under Tennessee anti-discrimination law that mirrors the ADA. Plaintiff, who has insulin-treated diabetes, did not name a major life activity that is substantially limited by his diabetes and failed to establish a broad class of jobs he was unable to perform under the “regarded as” prong.

19. Seaman Unified Sch. Dist. v. Kansas Comm’n on Human Rights, 990 P.2d 155

(Kan. App. 1999)

Summary judgment granted to employer under Kansas’s anti-discrimination law that mirrors the ADA. Court found that there is no evidence that employee’s type 1 diabetes, viewed in its medicated state, substantially limited the major life activity of working and employee cannot show that he was perceived as unable to perform a broad class of jobs under the “regarded as” prong.

20. Nerenberg v. RICA of Southern Maryland, 131 Md. App. 646 (Md. Ct. Spec. App.

2000)

Affirming the trial court’s grant of summary judgment in favor of the defendant, court finds that plaintiff, the estate of Laura Nerenberg, a person who died from complications of insulin-treated diabetes, failed to present sufficient evidence to establish a prima facie case of discrimination. Plaintiff failed to meet defendant’s legitimate job expectations on several occasions and no reasonable inference of unlawful discrimination can be raised.

21. Rebhan v. Atoll Holdings Inc., 2001 Cal. App. LEXIS 1219 (Cal. Ct. App.

2001)

Court holds that plaintiff, who has type 1 diabetes and experienced numerous insulin reactions at work, including losing consciousness twice, was substantially limited in her ability to work under both the ADA and state law standards. Decision contains an excellent discussion of diabetes, the actions that must be taken to try to minimize the risk of hypoglycemia, and how this makes plaintiff’s participation in various activities far different than people without diabetes. Court finds that if plaintiff lost consciousness she would be limited in working at any unsupervised job. Court further finds defendant regarded plaintiff as being substantially limited in her ability to work based on actions such as disciplining and ultimately firing plaintiff following insulin reactions.

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22. Tinjum v. Atl. Richfield Co., No. 46976-2-I, 109 Wn. App. 203, 2001 Wash. App. LEXIS 2551 (Ct. App. Nov. 19, 2001) Summary judgment denied to plaintiff with insulin-treated diabetes. Plaintiff argued that the defendant corporation violated Washington’s equivalent of ADA when it refused to employ him as a truck driver transporting petroleum within the state because he used insulin. Plaintiff failed to establish as a matter of law that the position only involved intrastate commerce, rather more evidence was needed to make this determination. Court specifically notes that federal regulations involving interstate commerce do not provide an absolute defense for blanket polices that prohibit people who use insulin from driving in intrastate commerce.

23. Muhammad v. New Orleans Police Dep't, 791 So.2d 788 (La. Ct. App. July 11, 2001)

The decision by the Civil Service Commission of New Orleans to dismiss plaintiff, who has diabetes and had undergone coronary artery bypass surgery, was affirmed. Plaintiff, by his own admission, could not perform the essential functions of the job of police officer. Court found that defendant made reasonable accommodations by informing plaintiff that the only job available was as a truck driver, a job plaintiff was unqualified for because of his medications.

24. Grant v. May Dep’t Stores Co., 786 A.2d 580, 2001 WL 1546312 (D.C. Dec. 6,

2001) Summary judgment to defendant affirmed on issue of whether plaintiff, who has insulin-treated diabetes, has a disability under District of Columbia Human Rights (DCHRA). Court found that insulin mitigated plaintiff’s disability such that she was not substantially limited in any major life activities, noting that plaintiff said she felt pretty good, could take care of herself, and did not have problems with her vision or walking. Summary judgment reversed on retaliation claim, finding that failure to establish the existence of a disability is not dispositive on the retaliation claim.

25. Kresge v. Mercado Latino, Inc., 2001 WL 1636841, 2001 Tex. App. LEXIS

8548 (Tex. App. Dec. 20, 2001)

Reversing grant of summary judgment for defendant, court finds that plaintiff, who has diabetes, established that a genuine issue of material fact exists as to whether defendant failed to hire plaintiff because he regarded him as having a disability. Plaintiff’s assertion that defendant told him he was not hired because of a problem with his blood warrants an inference that defendant regarded plaintiff as substantially limited in the major life activity of working, thus precluding summary judgment..

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26. N. Carolina Dept. of Health & Human Services v. Maxwell, 576 S.E.2d 688 (N.C. App. March 4, 2003)

Affirming trial court’s decision that plaintiff with type 1 diabetes was wrongfully

terminated by the N.C. Dept. of Health & Human Services under state law. Employee was terminated for failure to keep up with his caseload. Court held that insulin-dependent diabetes and related vision problems are “handicapping conditions” under the state statute making the employee a “handicapped individual.” Court further found that employee’s failure to keep up with his caseload was directly related to his diabetes-related vision problems and that employer failed to make reasonable accommodations for employee’s disability.

27. Continenza v. Tablack, 2003 Ohio App. LEXIS 6026 (Ohio App. 2003)

Court affirmed summary judgment for defendant against plaintiff, an individual with diabetes and inclusion body myocitis (IBM) who was terminated from his job as a programmer. Since defendant did not dispute that plaintiff’s IBM was a disability, the court did not need to address whether plaintiff’s diabetes constituted a disability. Instead, the court held that plaintiff failed to prove that disability played any part in his termination. He failed to present any evidence that his termination was motivated by his disability other than the temporal link between his request for an accommodation and his termination, and he failed to present any evidence to rebut the employer’s assertion that his performance was inadequate. He claimed he needed an accommodation in order to get into the building at times when the handicapped entrance was closed (which he claimed was necessary to complete his work satisfactorily) but there was conflicting evidence as to whether he could use another entrance and he could have done work at other times or at home. Finally, the evidence that plaintiff offered to show his termination was pretext for disability disc rimination (such as not having enough people on hand to train him) were unrelated to his disability and so could not prove pretext.

28. Gurrola v. The Pep Boys – Manny Moe and Jack of California, 2003 Cal. App.

Unpub. LEXIS 11367 (Cal. Ct. App. 2003)

Court reversed trial court’s grant of summary judgment to defendants. Plaintiff, who had diabetes controlled by insulin, claimed that defendants discriminated against her by failing to allow to take breaks on the job to which she was entitled and which she needed to control her diabetes, resulting in numerous incidents of dangerously low blood sugar. Plaintiff also claimed that defendants terminated her because of her disability. After her termination she applied for state disability benefits and in that application claimed that she was totally disabled and unable to work. Court held that judicial estoppel did not bar plaintiff’s claims because she did not apply for disability benefits for the period during which she worked for defendants, and saying she was totally disabled after she worked there was not inconsistent with her failure to accommodate claim.

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29. Boehlert v. City of Glendale,, 2004 Cal. App. Unpub. LEXIS 7637 (Cal. Ct. App.

2004) Court affirmed grant of summary judgment against plaintiff who claimed his pay

was reduced based on his use of sick leave to care for his diabetes and sleep apnea. The court held that plaintiff was only denied a merit pay bonus for exceptional performance, not regular pay to which he was entitled, and also held that the Civil Service Commission’s finding that he had abused the sick leave system was binding on the court and foreclosed his claim. The court also held that his failure to accommodate claim failed because he had not introduced any evidence that his medical conditions limited his ability to perform his job, and therefore he did not have a disability under state law.

30. Rohland v. St. Cloud Christian School, 2004 Minn. App. LEXIS 1415 (Minn.

Ct. App. 2004)

Court affirmed grant of summary judgment for religious school on terminated teacher’s disability discrimination claim under state law. Plaintiff has diabetes; although the type is not specified, nothing in the opinion suggests that she uses insulin. Defendant argued that plaintiff was terminated for her inability to control her classroom and properly discipline students, rather than her diabetes. Although Minnesota law requires only that an impairment be “materially” limiting rather than substantially limiting, to qualify as a disability, the court held that plaintiff had not met this burden. The only major life activity that plaintiff claimed was limited was the activity of working, and the only evidence she offered to show that she was actually disabled was that she had to take medical leave on occasion, needed assistance in the classroom after she fractured her foot, and had to use magnifying glasses, enlarged print and other modifications in the classroom because of vision problems. The court held that this evidence was insufficient because the need for medical leave or for some assistance in the classroom does not establish that an impairment is materially limiting, and because the plaintiff’s visual impairments were corrected through the modifications she used (which the court considered mitigating measures under Sutton). The court also found that she did not have a record of a disability merely because she had been hospitalized for eye surgery on several occasions, and that she was not regarded as disabled because there was no evidence that defendant perceived her diabetes as limiting her abilities in the classroom. The court also affirmed the denial of summary judgment on plaintiff’s age discrimination claim and held that plaintiff’s claims were not preempted by the First Amendment’s free exercise and establishment clauses.

31. Steen v. Diving Unlimited International, Inc., 2005 Cal. App. Unpub. Lexis 3919

(Cal. Ct. App. 2005)

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Appellate court reversed trial court’s grant of attorney’s fees to prevailing defendant in disability discrimination claim under state law. Plaintiff has diabetes and developed retinopathy. As her retinopathy worsened, she began to have difficulty performing her work as an assembler of diving suits. Despite some attempts to accommodate her by moving her to less demanding positions, she was ultimately terminated for poor performance. The trial court denied summary judgment on her disability discrimination and breach of contract claims. A jury found that plaintiff had a disability but that defendant was not aware of it, thus defeating the disability discrimination claim; the jury also rejected the contract claim. The trial court awarded attorney’s fees based on its belief that there was not substantial evidence to support the jury’s findings. The appellate court reversed this grant of fees, holding that fees can only be granted to a defendant where the litigation is frivolous, unreasonable or groundless. The court held that the fact that the trial court believed there was sufficient evidence for the claims to go to a jury showed that the litigation did not meet this standard.

32. Gee v. Minnesota State Colleges and Universities., 700 N.W. 2d 548 (Minn. Ct.

App. 2005)

Appeals court reversed grant of summary judgment against plaintiff, a college professor who has type 2 diabetes and uses insulin. She was rejected for a tenure track position and denied a contract extension allegedly because of her diabetes. The trial court held that she was not disabled because she had not shown any material limitation on the major life activity of working. Despite the fact that plaintiff had alleged limitations in her ability to walk and see, the court interpreted state law to hold that only limitations on employability counted for purposes of determining whether an individual had a disability. The appeals court reversed this ruling, holding that the prior cases cited by the trial court were based on superseded regulatory language and conflicted with provisions in state and analogous federal law which indicated that limitations other than those on working can be considered. The court remanded the case to the trial court to determine whether plaintiff was materially limited in the major life activities of walking and seeing. Also, the court affirmed the trial court’s grant of summary judgment on plaintiff’s claims under state whistleblower protection law.

33. Elite Marble Co. v. State Labor & Industrial Review Commission., 2006 Wi. App.

Lexis 130 (Wis. Ct. App. 2006)

Appeals court upheld a state administrative agency’s determination that an employer had discriminated against an individual with diabetes by firing him because he appeared to be drunk during an episode of severe hypoglycemia. Several hours into his shift, the individual appeared confused and disoriented and had trouble walking. The individual was fired, even though the employer knew about his diabetes and the possibility of hypoglycemia and no evidence was ever found that he had been drinking. The state administrative agency ruled for the individual largely because it found his account of events to be more credible than

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the employer’s conflicting account and because of evidence that the employer had modified records to support its account. The appeals court upheld these findings, holding that it was within its authority in making credibility determinations about the employer’s witnesses and that substantial evidence supported its findings. The court also upheld the agency’s decision with respect to the amount of back pay, which had been modified by the trial court.

34. Pierson v. Los Angeles Dep’t of Water & Power., 2006 Cal. App. Unpub. Lexis

4768 (Cal. Ct. App. 2006)

Appeals court affirmed a trial court’s decision rejecting employee’s claim that her municipal employer failed to accommodate her disabilities. Employee, who has fibromyalgia, type 2 diabetes, and other conditions, requested that she be permitted to telecommute because of the pain caused by her 65-mile daily commute and its effect on her ability to control her blood glucose levels. The employer denied her request to telecommute because it said her duties as a public relations officer required her presence in the workplace, and as an alternative offered a flexible work schedule and extended breaks as an accommodation. With these accommodations plaintiff continued to work for the employer; her need to take time off for her condition decreased over time, and her blood glucose control improved. The court held that these accommodations were reasonable and effective, based on her continued ability to do the job and her failure to introduce any medical evidence that telecommuting was medically required due to her condition (at most, her medical evidence showed that telecommuting would decrease work-related stress, not that it was necessary). As such, the court was not required to consider whether telecommuting would have been reasonable under the circumstances.

35. Gerow v. City of Saginaw., 2008 Mich. App. Lexis 181 (Mich. Ct. App. 2008)

Court affirmed grant of summary judgment against firefighter who has type 2 diabetes treated with insulin. Plaintiff worked as a firefighter for the city for more than 20 years, but when his use of insulin was discovered he was removed from duty because of the belief of defendant’s physician that he could not safely work as a firefighter, even though he had experienced no problems related to his diabetes and although his treating physician stated that he could safely perform his job, He applied for and received disability retirement, and sued for disability discrimination under state law. The court found that he did not have a disability under that statute. First, plaintiff was not substantially limited in working because he had successfully worked as a plumber following his termination. Also, the court rejected plaintiff’s contention that manufacturing and processing insulin was a major life activity, holding that under Michigan law major life activities had to be behaviors or activities engaged in by the individual rather than biological components. Plaintiff apparently did not claim limitations in any other major life activities. The court noted that it was interpreting state law, not the ADA, and declined to give persuasive weight to federal cases interpreting the ADA.

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36. Mackay v. Four Rivers Packing Co., 179 P. 3d 1064 (Idaho 2008)

Court reversed summary judgment against plaintiff with type 2 diabetes (treated with insulin) who worked as a field agent for a packing company. Plaintiff claimed that he was terminated shortly after he began to use insulin, in violation of an alleged oral ontract that he would have continued employment with defendant until he retired. The court first reversed the lower court’s ruling that the alleged oral contract was invalid because of the statute of frauds. Next, the court held that the trial court erred in dismissing plaintiff’s disability discrimination claim under state law (which is analogous to the ADA). Plaintiff did not claim an acatual disability, bu tclaimed that defendant regarded him as disabled, based on an affidavit from a coworker that he had overheard the company’s general manager say that the plaintiff was too overweight and too sick with diabetes to work for the company. The court held that this statement was direct evidence that the company regarded plaintiff as disabled; although the company denied making this statement, that was an issue of fact to be determined by a jury.

37. De La Torre v. Unified Western Grocers, Inc.., 2008 Cal. App. Unpub. Lexis

1586 (Cal. Ct. App. 2008)

Court affirmed summary judgment against plaintiff, an administrative assistant who had gestational diabetes. During her pregnancy her supervisors became suspicious that she was falsifying her timecards by reporting hours of overtime that were not authorized and that she had not worked. An investigation by the company revealed significant discrepancies between her timecards and the hours she actually worked, and as a result she was terminated. She sued under state law alleging pregnancy discrimination and disability discrimination based on her gestational diabetes. The court assumed that she could establish a prima facie case, but held that she had not raised any facts supporting pretext. She claimed that one supervisor was biased against her because of her need to take time off to care for her pregnancy and gestational diabetes. However, the supervisor’s co moments did not rise to the level of showing discriminatory animus, and the investigation of her timecards began before her diagnosis of gestational diabetes. She was also unable to show any bias or pretext in the way the investigation was carried out.