ADA diabetes case finds protected disability based on substantial limitation of major life activity of eating
(I’ve been meaning for over a week to get back to posting some significant Court of Appeals decisions. Unfortunately, to cover them in the manner I prefer can be more time-consuming than posting some of the items I run across in the media. Hopefully, this is the first of several significant cases I’ll be covering this week.)
In Fraser v. U.S. Bancorp (9th Cir. 9/8/03), the plaintiff contended the employer violated the ADA by discriminating against her because of her diabetes. The 9th Circuit reversed summary judgment for the employer on the issue of whether her diabetes was a disability under the ADA.
This case is instructive on several levels. It illustrates well the individualized fact-finding engaged in by the courts in determining whether an individual qualifies for protection under the ADA. It also is an example of outrageously ignorant employer conduct. Finally, there are a couple of procedural tips for attorneys.
The plaintiff’s diabetes
The plaintiff suffered from “type I insulin-dependent diabetes with recurring acidosis complicated by pulmonary impairment,” which the court characterized as “severe and life-threatening,” with blood sugar levels that are very difficult to control.
Treatment entailed four or more daily blood sugar tests and multiple injections of varying amounts and types of insulin or glucagon, depending on factors such as “how much she ate, how active she was that day, her blood pressure, kidney function, infections, circulation, etc.”
Ignorant employer conduct
The plaintiff worked as a Senior Account Specialist for a bank. Her supervisor notified her that she could not eat at her desk. Later, she recorded a “dangerously low” blood sugar level, becoming disoriented as her blood sugar dropped further. She had food in her desk, but because of the supervisor’s earlier admonition, she first explained the situation to him and asked permission to eat. He told her to “come back when she had an intelligent question to ask.” She “became even more disoriented and her memory was so impaired that she could not remember how to use the telephone.” She again unsuccessfully sought the supervisor’s permission to do something, eventually passing out in the bank lobby.
What can I say? That if she had died, an ADA lawsuit wouldn’t have been the worst of the legal problems faced by the Bank and the manager?
Diabetes as an ADA disability
In analyzing this issue consistent with Supreme Court precedent, the court considered mitigating measures such as insulin injections and other drugs, as well as natural mitigating measures, such as the body’s natural response to cope with physical impairments. It also noted that the side effects and burdens of mitigating measures must be taken into account.
The court cautioned that whether an individual is disabled under the ADA is a “fact.based analysis that knows no bright lines. We do not decide whether every diabetic is disabled.”
Considering whether the plaintiff was substantially limited in any major life activity, the court found she was substantially limited in eating. Following decisions from several other circuits, which it cited, the court concluded that eating is a major life activity.
While that conclusion may seem like a big “duhh,” the court cautioned against going too far with it:
“[E]ating specific types of foods, or eating specific amounts of food, might or might not be a major life activity. If a person is impaired only from eating chocolate cake, he is not limited in a major life activity because eating chocolate cake is not a major life activity. On the other hand, peanut allergies might present a unique situation because so many seemingly innocent foods contain trace amounts of peanuts that could cause severely adverse reactions.”
“As to the type of eating that [the plaintiff] alleges, it is a major life activity and certainly falls within those activities that are of central importance to most people’s daily lives. Not only must she not eat certain foods, but she must carefully assess her blood sugar before putting anything into her mouth. It is the physical activity of eating in general that she argues is impaired, and we agree that this activity is a major life activity under the ADA.”
Here’s a gem the court couldn’t resist:
“Though we hold that eating is a major life activity, we do not thereby invite all those on a diet to bring claims of disability. Not every impediment to the copious and tasty diets our waistlines and hearts cannot endure is a substantial limitation of the major life activity of eating. We must carefully separate those who have simple dietary restrictions from those who are truly disabled. At the same time, we must permit those who are disabled because of severe dietary restrictions to enjoy the protections of the ADA.”
The plaintiff had severe dietary restrictions because her “diabetes regimen is perpetual, severely restrictive, and highly demanding. [She] must test her sugar several times daily, each test is painful, and takes close to five minutes to complete. She must vigilantly monitor what and how much she eats. She must time her daily shots and meals so carefully that it is not safe for her to live alone. . . . She must always have certain foods available in case her blood sugar drops or skyrockets. She must always be able to take time to eat or give herself injections to balance her blood sugar levels. She cannot put a morsel of food in her mouth without carefully assessing whether it will tip her blood sugars out of balance. . . . Unlike a person with ordinary dietary restrictions, [she] must monitor much more than what and how much she eats.”
“Unlike a person with ordinary dietary restrictions, she does not enjoy a forgiving margin of error. While the typical person on a heart-healthy diet will not find himself in the emergency room if he eats too much at a meal or forgets his medication for a few hours, [the plaintiff] does not enjoy this luxury.”
Procedural goof – a good argument waived
In the alternative, in support of her retaliation claim, the plaintiff argued that even if she was not actually disabled within the meaning of the ADA, she had a good faith belief that she was (and that she therefore was entitled to the accommodation of being allowed to eat at her desk).
Because one may be protected against retaliation for protesting what one believes in good faith to be discrimination, even if one is wrong, this potentially could have saved her case had court rejected her claim of actual disability.
Unfortunately for her, she failed to preserve this issue because she did not allege a good faith belief in her disability in her complaint, in response to the employer’s summary judgment motion, or at any other time before the District Court, raising it only on appeal, when it was too late.
Procedural goof — evidence not presented in response to summary judgment motion
On appeal, the plaintiff cited to several pages from depositions which she had not cited to the District Court in response to summary judgment motion. This was therefore not in the record on appeal and not considered by the court.
What these two goofs have in common is the failure — which my experience suggests is quite common among employment attorneys — to devote the same degree of time, care, and expertise to the summary judgment process that they devote to the discovery process. Taking the world’s best deposition is of little use if one fails to read it thoroughly and cite it properly at the summary judgment stage. Having a good argument is of no use if one fails to think of it until after losing summary judgment. Unfortunately, summary judgment motions are too often delegated to inexperienced associates and/or handled in haste.
Summary judgment evidence
There was an issue about whether the plaintiff’s diary could be properly considered. The employer argued it could not, because was inadmissible hearsay. The plaintiff responded that the employer’s request to strike was not a proper formal motion to strike, so it waived this objection.
The court rejected both positions. As long as the objection was “clear, specific, and timely” in the employer’s summary judgment reply it did not have to be the subject of a separate motion to strike.
The court did not need to decide whether the diary was admissible, because “at the summary judgment stage, we do not focus on the admissibility of the evidence’s form. We instead focus on the admissibility of its contents.” The plaintiff could have testified to the facts contained in the diary from personal knowledge or used the diary to refresh her recollection, so it was properly considered on summary judgment.
