Homeyer v. Stanley Tulchin Associates, Inc.

• Citation: 91 F.3d 959
• Decision Date: 31 July 1996
• Docket Number: No. 95-3977,95-3977
• Parties: 5 A.D. Cases 1198, 18 A.D.D. 409, 8 NDLR P 264 Patricia E. HOMEYER, Plaintiff-Appellant, v. STANLEY TULCHIN ASSOCIATES, INC. and Alan Fox, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 959

91 F.3d 959

5 A.D. Cases 1198, 18 A.D.D. 409, 8

NDLR P 264

Patricia E. HOMEYER, Plaintiff-Appellant, v. STANLEY TULCHIN ASSOCIATES, INC. and Alan Fox, Defendants-Appellees.

No. 95-3977.

United States Court of Appeals, Seventh Circuit.

Argued May 23, 1996.

Decided July 31, 1996.

Susan Connor (argued), Chicago, IL, Nicholas C. Zagotta, Chicago, IL, for Patricia E. Homeyer.

Carl S. Tominberg, Joseph M. Gagliardo, Jeffrey S. Fowler (argued), Laner, Muchin, Dombrow, Becker, Levin & Tominberg, Chicago, IL, for Stanley Tulchin Associates, Incorporated, and Alan Fox.

Barry Levenstam, Joel J. Africk, James B. Sowerby, Jenner & Block, Chicago, IL, for Amicus Curiae American Lung Association of Metropolitan Chicago.

Mark A. Gottlieb, Tobacco Liability Project, School of Law, Boston, MA, for Amicus Curiae Tobacco Liability Project.

Before COFFEY, FLAUM, and EASTERBROOK, Circuit Judges.

FLAUM, Circuit Judge.

Plaintiff Patricia Homeyer brought suit against her former employer, Stanley Tulchin Associates, Inc. ("STA"), claiming she was fired in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12201 et seq. Homeyer alleged that she suffered from chronic severe allergic rhinitis and sinusitis and that her condition was aggravated by the environmental tobacco smoke ("ETS") at STA's office. She claimed that after requesting an accommodation from STA several times for her "disability," she was terminated. The district court found that Homeyer could plead no facts demonstrating she was "disabled" within the meaning of the ADA and thus dismissed her claim. We reverse and remand.

I.

When reviewing a motion to dismiss for failure to state a claim, we must accept as true the factual allegations of the complaint and draw all reasonable inferences in the plaintiff's favor. Lashbrook v. Oerkfitz, 65 F.3d 1339, 1343 (7th Cir.1995). In March of 1991, STA hired Homeyer as a typist in its Des Plaines, Illinois office. Because several of her co-workers were allowed to smoke in the office, Homeyer was continuously exposed to ETS. Additionally, the building's poor ventilation system caused the ETS to "linger[ ] in the air throughout the day." Homeyer suffers from chronic severe allergic rhinitis and sinusitis, which impair her ability to breathe normally. The ETS at work aggravated her condition, and she "experienced breathing difficulties on a routine basis."

In June of 1992, Homeyer informed STA of her respiratory condition and of the fact that the ETS in the building exacerbated her breathing difficulties. She requested a reasonable accommodation for her "disability" and suggested "some specific possibilities." STA refused her request, instead advising her to seek employment elsewhere. After several more requests elicited the same answer, Homeyer filed an ADA claim with the EEOC and an Illinois Workers' Compensation claim. In August of 1993, with no accommodation forthcoming, Homeyer sought a doctor-prescribed medical leave from STA (until a smoke-free environment could be provided). STA denied her request, and she was terminated.

Following her termination, Homeyer filed this suit, alleging discrimination and retaliation under the ADA and also asserting several state law claims. STA moved to dismiss the complaint, claiming Homeyer could not establish the threshold requirement that she suffered from a "disability" as defined by the ADA. The district court agreed and dismissed the action. The court found that Homeyer could not claim that her "sensitivity to ETS" substantially impaired her ability to find employment as a typist generally. It therefore concluded that Homeyer's major life activity of working was not substantially limited and she was not disabled or entitled to protection under the ADA.

II.

We review a district court's grant of a motion to dismiss de novo. City Nat'l Bank of Florida v. Checkers, Simon & Rosner, 32 F.3d 277, 281 (7th Cir.1994). A claim should be dismissed only where it appears beyond a doubt that plaintiff can prove no set of facts that would entitle her to relief. Lashbrook, 65 F.3d at 1343.

An ADA plaintiff must suffer from a "disability" as defined in the Act in order to invoke the Act's protection. Hamm v. Runyon, 51 F.3d 721, 724 (7th Cir.1995); Roth v. Lutheran General Hosp., 57 F.3d 1446, 1454 (7th Cir.1995). The ADA defines "disability" as "a physical or mental impairment that substantially limits one or more of the major life activities of [an] individual." 42 U.S.C. § 12102(2)(A). EEOC regulations interpreting the Act define the term "major life activities" to include "functions, such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. at 1630.2(i). "Substantially limits" means that the person is either unable to perform a major life function or is "significantly restricted as to the condition, manner or duration" under which the individual can perform a particular major life function, as compared to the average person in the general population. 29 C.F.R. at 1630.2(j).

The district court recognized that Homeyer's complaint alleged that her physical condition (chronic severe allergic rhinitis and sinusitis) substantially impaired her ability to breathe and that her condition, when aggravated by ETS, substantially limited her ability to work. With these allegations, it would seem that under the liberal federal notice pleading standards, Homeyer sufficiently pled the initial element of an ADA claim, i.e., that she suffers from a "disability" as defined in the Act. Homeyer was not required to plead facts or evidence to support her allegations; she was not even required to include a theory of the case. Her complaint was clear enough to inform STA of her claim. See Daniels v. USS Agri-Chemicals, 965 F.2d 376, 381 (7th Cir.1992); Jackson v. Marion County, 66 F.3d 151, 153 (7th Cir.1995); American Nurses' Ass'n. v. Illinois, 783 F.2d 716, 723 (7th Cir.1986). And Homeyer certainly did not plead any facts demonstrating that she could not state a claim; she did not plead herself out of court. See id. at 724; Jackson, 66 F.3d at 153.

Nonetheless, the district court dismissed Homeyer's claim, concluding that "Homeyer is not a qualified individual with a disability, and accordingly, is not entitled to the protection of the ADA...." The court seemed convinced that although Homeyer's condition may have prevented her from working at STA, there was no set of facts under which Homeyer could prove that "her sensitivity to ETS substantially limits her ability to find employment as a typist generally." Such a showing, the court correctly noted, was necessary for Homeyer to succeed on her claim that she was "disabled" because her ability to work was substantially limited. It is now well-established that "an inability to perform a particular job for a particular employer" is not sufficient to establish a substantial limitation on the ability to work; rather, "the impairment must substantially limit employment generally." See Byrne v. Board of Educ., 979 F.2d 560, 565 (7th Cir.1992); see also Gupton v. Commonwealth of Virginia, 14 F.3d 203, 205 n. 3 (4th Cir.) (collecting cases), cert. denied, 513 U.S. 810, 115 S.Ct. 59, 130 L.Ed.2d 17 (1994); 29 C.F.R. § 1630.2(j)(3)(i). Although we agree with the district court's account of the law under the ADA, we are unable to accept the court's finding at this early stage in the case that Homeyer is not "disabled" for two reasons.

First, the court discussed only why Homeyer could not establish that her major life activity of working was impaired, disregarding her contention that she was "disabled" because her major life activity of breathing was substantially limited by her respiratory condition. This would provide a separate basis for protection under the Act. ¹ It is possible that the district court concluded that Homeyer's chronic severe allergic rhinitis and sinusitis could not (aside from its possible effect on her ability to work) constitute a substantial limitation on the activity of breathing as matter of law. A disability determination, however, should not be based on abstract lists or categories of impairments, as there are varying degrees of impairments as well as varied individuals who suffer from the impairments. See Forrisi v. Bowen, 794 F.2d 931, 933 (4th Cir.1986). In fact, the regulations note that a finding of disability:

is not necessarily based on the name or diagnosis of the impairment the person has, but rather on the effect of that impairment on the life of the individual. Some impairments may be disabling for particular individuals but not for others, depending upon the stage of the disease or disorder, the presence of other impairments that combine to make the impairment disabling or any number of other factors.

29 C.F.R.App. § 1630.2(j). This is why a determination of disability must be made on an individualized, case-by-case basis. See Byrne, 979 F.2d at 565; Roth, 57 F.3d at 1454; Forrisi, 794 F.2d at 933. Whether a substantial limitation upon a major life activity exists depends upon an analysis of 1) the nature and severity of the impairment, 2) the duration of the impairment, and 3) the permanent or long-term impact of the impairment. 29...