Forrisi v. Bowen
| Decision Date | 25 June 1986 |
| Docket Number | No. 85-2317,85-2317 |
| Parties | 41 Fair Empl.Prac.Cas. 190, 40 Empl. Prac. Dec. P 36,307, 55 USLW 2028, 1 A.D. Cases 921 Louis P. FORRISI, Appellant, v. Otis R. BOWEN, Appellee. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Louis L. Lesesne, Jr. (Gillespie & Lesesne, Charlotte, N.C., on brief) for appellant.
Timothy M. White, Dept. of Health and Human Services, Washington, D.C. (Kenneth W. McAllister, U.S. Atty., Harry L. Hobgood, Asst. U.S. Atty., Greensboro, N.C., on brief) for appellee.
Before WIDENER and WILKINSON, Circuit Judges, and MICHAEL, United States District Judge for the Western District of Virginia, sitting by designation.
The sole question is whether the plaintiff, fired because of his fear of heights, may claim the protection of the Rehabilitation Act of 1973, 29 U.S.C. Sec. 701 et seq. We conclude that plaintiff's acrophobia is not a handicap for which he may claim relief from discrimination, and we affirm the summary judgment in favor of defendant.
The Department of Health and Human Services hired Louis P. Forrisi in February 1983 as a utility systems repairer and operator in the Office of Facilities Engineering of the National Institute of Environmental Health Services (NIEHS). The job description requires that the occupant be able to climb stairways and ladders both for emergencies and for routine maintenance. During an introductory tour of the plant at Research Triangle Park, North Carolina, Forrisi told his supervisor that he could not climb to certain heights. Management officials responded that Forrisi therefore could not satisfy the requirements of his job. Forrisi insisted that he could do the necessary work, particularly if the employer would make some adjustments to accommodate his fears. In April 1983, HHS informed Forrisi that it had terminated his appointment because he was "medically unable to perform the full range of the duties of [his] position." Forrisi charged that the decision constituted illegal discrimination against a handicapped person, and, after exhausting the available administrative remedies, brought this lawsuit under Sec. 505 of the Rehabilitation Act of 1973, 29 U.S.C. Sec. 794a.
To succeed in his claim, Forrisi must first establish that he is a handicapped person within reach of the statute. The Rehabilitation Act of 1973, as amended, defines the term "handicapped individual" at 29 U.S.C. Sec. 706(7)(B) as "any person who (i) has a physical or mental impairment which substantially limits one or more of such person's major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment." The district court correctly held that plaintiff failed to satisfy this threshold test.
The question of who is a handicapped person under the Act is best suited to a E. E. Black, Ltd. v. Marshall, 497 F.Supp. 1088, 1100 (D.Hawaii 1980), as courts assess the effects of various impairments upon varied individuals. The definitional task cannot be accomplished merely through abstract lists and categories of impairments. The inquiry is, of necessity, an individualized one--whether the particular impairment constitutes for the particular person a significant barrier to employment. Relevant to the inquiry are "the number and type of jobs from which the impaired individual is disqualified, the geographical area to which the individual has reasonable access, and the individual's job expectations and training." Jasany v. United States Postal Service, 755 F.2d 1244, 1249 (6th Cir.1985).
The statutory language, requiring a substantial limitation of a major life activity emphasizes that the impairment must be a significant one. It was open to Congress to omit these limiting adjectives, but Congress did not do so. Tudyman v. United Airlines, 608 F.Supp. 739, 745 (C.D.Cal.1984). The Rehabilitation Act assures that truly disabled, but genuinely capable, individuals will not face discrimination in employment because of stereotypes about the insurmountability of their handicaps. It would debase this high purpose if the statutory protections available to those truly handicapped could be claimed by anyone whose disability was minor and whose relative severity of impairment was widely shared. Indeed, the very concept of an impairment implies a characteristic that is not commonplace and that poses for the particular individual a more general disadvantage in his or her search for satisfactory employment. Jasany v. United States Postal Service, 755 F.2d at 1249.
Forrisi does not maintain that his acrophobia substantially limits his major life activities or that he has a history of an impairment that so limits him. To the contrary, he reported in deposition testimony that "My fear of heights never affected my life at all on any job or anything" and that Cf. Jasany v. United States Postal Service, 755 F.2d at 1250 ().
Forrisi argues instead that Sec. 706(7)(B)(iii) extends to his situation because, though not in fact a handicapped individual, he was perceived as being so. HHS, he claims, regarded him as having an impairment that substantially limited one of his major life activities. The Equal Employment Opportunity Commission, which is responsible for federal employers' compliance with the Rehabilitation Act, has issued regulations that define "is regarded as having an impairment" to mean
(1) has a physical or mental impairment that does not substantially limit major life activities but is treated by an employer as constituting such a limitation; (2) has a physical or mental impairment that substantially limits major life activities only as a result of the attitude of an employer toward such impairment; (3) or has none of the impairments defined in (b) of this section but is treated by an employer as having...
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