Poindexter v. Atchison, Topeka and Santa Fe Railway Co.

• Decision Date: 24 February 1999
• Docket Number: No. 97-3273,97-3273
• Citation: 168 F.3d 1228
• Parties: 14 NDLR P 222, 1999 CJ C.A.R. 1692 Linda L. POINDEXTER, Plaintiff-Appellee, v. ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1228

168 F.3d 1228

14 NDLR P 222, 1999 CJ C.A.R. 1692

Linda L. POINDEXTER, Plaintiff-Appellee, v. ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, Defendant-Appellant.

No. 97-3273.

United States Court of Appeals, Tenth Circuit.

Feb. 24, 1999.

Margaret S. Garvey, Freeborn & Peters, Denver, Colorado, appearing for Appellant.

Mark C. Beam-Ward, Hill, Beam-Ward & Kruse, Overland Park, Kansas, appearing for Appellee.

Before TACHA, McWILLIAMS, and LUCERO, Circuit Judges.

TACHA, Circuit Judge.

This action stems from plaintiff's claim that her employer, The Atchison, Topeka and Santa Fe Railway Company ("Santa Fe"), violated the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., when it refused to transfer her to Kansas City after she developed a panic disorder that prevented her from traveling the highways between her home in Kansas City and her workplace in Topeka. The case proceeded to trial, and the jury returned a verdict in favor of Ms. Poindexter. After denying Santa Fe's motion for judgment as a matter of law, or, in the alternative, a new trial, the trial court entered a final judgment in accordance with the jury verdict. Defendant appeals, and we take jurisdiction under 28 U.S.C. § 1291. We reverse and remand for a new trial.

Background

Ms. Poindexter began her employment with Santa Fe on June 3, 1974, in its Kansas City, Kansas office, where she worked until June 1993. Pursuant to a system-wide reorganization in which Santa Fe consolidated its customer quality and support functions, Ms. Poindexter accepted a transfer to Topeka. Ms. Poindexter had the option of actually moving from Kansas City to Topeka or simply accepting relocation funds. She chose to accept the relocation compensation and commute, typically car pooling with other Santa Fe employees.

In October 1993, plaintiff experienced a panic attack while returning from a vacation in Arkansas with her sister. A second panic attack occurred while driving the carpool group to Topeka in early November 1993. At her request, the others in the group took over all driving responsibilities. Shortly thereafter, Ms. Poindexter went on medical leave of absence and remained in that status throughout the trial.

After taking the medical leave of absence, Ms. Poindexter sought a transfer to Santa Fe's Kansas City office because of her condition. Santa Fe denied her transfer request. Ms. Poindexter asserts that this violates the ADA as a discriminatory refusal to reasonably accommodate her disability.

Discussion

The ADA prohibits employers from discriminating "against a qualified individual with a disability because of the disability of such individual." 42 U.S.C. § 12112(a). A qualified individual with a disability is one "who, with or without reasonable accommodation, can perform the essential functions of the employment position." 42 U.S.C. § 12111(8). Therefore, to establish a viable claim under the ADA, a plaintiff must prove by a preponderance of the evidence that (1) she has a disability; (2) she is qualified for the position; and (3) her employer discriminated against her because of her disability. See Sutton v. United Air Lines, Inc., 130 F.3d 893, 897 (10th Cir.1997), cert. granted, 67 U.S.L.W. 3433 (U.S. Jan. 8, 1999) (No. 97-1943); Siemon v. AT&T Corp., 117 F.3d 1173, 1175 (10th Cir.1997). Because we reverse based upon the "disability" prong, we do not address the two latter elements.

"Disability" under the ADA is a term of art. The statute defines it as:

(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;

(B) a record of such an impairment; or

(C) being regarded as having such an impairment.

42 U.S.C. § 12102(2). The Supreme Court in Bragdon v. Abbott, 524 U.S. 624, 118 S.Ct. 2196, 2202, 141 L.Ed.2d 540 (1998), recently announced, "consideration of subsection (A) of the definition proceeds in three steps." First, the court must determine whether the plaintiff has an impairment. See id. Second, the court must identify the life activity upon which the plaintiff relies and determine whether it constitutes a major life activity under the ADA. See id. Third, "tying the two statutory phrases together, [the court] ask[s] whether the impairment substantially limited the major life activity." Id. Thus, the Court in Bragdon makes clear that whether a claimed affliction constitutes an impairment under the ADA and whether the identified endeavor constitutes a major life activity are determinations of law for the court to decide. It follows that a plaintiff must specifically plead or prove at trial the impairments and the major life activities he or she asserts are at issue. See id. at 2205 ("[I]t may seem legalistic to circumscribe our discussion to the activity of reproduction. We have little doubt that had different parties brought the suit they would have maintained that an HIV infection imposes substantial limitations on other major life activities.").

In construing the ADA provisions, the Supreme Court has looked beyond the statutory language to the regulations interpreting both the ADA and the Rehabilitation Act of 1973. See Bragdon, 524 U.S. at ----, 118 S.Ct. at 2202-05; see also 42 U.S.C. § 12201 (noting that courts should not construe the ADA to apply lesser standards than those in the Rehabilitation Act and its regulations). These regulations prove particularly helpful in defining what constitutes an impairment or major life activity under the ADA.

When the Department of Health and Human Services issued regulations defining impairment under the ADA, it adopted the Rehabilitation Act regulations without change. See 29 C.F.R. pt. 1630, app. at 347. A physical or mental impairment is:

(1) Any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine; or

(2) Any mental or physical disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.

29 C.F.R. § 1630.2(h) (1998). Although this definition is not meant as a comprehensive enumeration, the commentary accompanying the Rehabilitation Act regulations "contains a representative list of disorders and conditions constituting physical impairments, including 'such diseases and conditions as orthopedic, visual, speech, and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, mental retardation, emotional illness, and ... drug addiction and alcoholism.' " Bragdon, 524 U.S. at ----, 118 S.Ct. at 2202 (quoting 42 Fed.Reg. 22685 (1977), reprinted in 45 C.F.R. pt. 84, app. A at 334 (1997)).

The ADA and Rehabilitation Act regulations also assist courts in determining whether a particular endeavor may properly be considered a major life activity. "Rather than enunciating a general principle for determining what is and is not a major life activity, [these] regulations instead provide a representative list, defining [the] term to include 'functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.' " Bragdon, 524 U.S. at ----, 118 S.Ct. at 2205 (quoting 45 C.F.R. § 84.3(j)(2)(ii) (1997); 28 C.F.R. § 41.31(b)(2) (1997)); see also 29 C.F.R. § 1630.2(i) (1998). As the Department of Health and Human Services asserts, "This list is not exhaustive. For example, other major life activities include, but are not limited to, sitting, standing, lifting, and reaching." 29 C.F.R. pt. 1630, app. at 347 (1998). Finally, if the asserted major life activity is not one of the examples listed above, under the plain meaning of the word "major," the " 'touchstone for determining an activity's inclusion under the statutory rubric is its significance.' " See Bragdon, 524 U.S. at ----, 118 S.Ct. at 2205 (quoting Abbott v. Bragdon, 107 F.3d 934, 940 (1st Cir.1997)). For example, this court in Pack v. Kmart Corp., 166 F.3d 1300, 1302 (10th Cir.1999) recently recognized that sleeping, although not enumerated in the regulations, constitutes a major life activity, while concentration does not. The court asserted, "In deciding whether a particular activity is a 'major life activity,' we ask whether the activity is significant within the meaning of the ADA." Pack v. Kmart Corp., 1999 WL 51882, at * 3. We then held

that sleeping is a major life activity, but concentration is not. Sleeping is a basic activity that the average person in the general population can perform with little or no difficulty.... However, concentration is not itself a major life activity. Concentration may be a significant and necessary component of a major life activity, such as working, learning, or speaking, but it is not an 'activity' itself."

See Pack, at 1303-04.

In this case, the court neither found nor precisely articulated an impairment and major life activity that the impairment may have affected. Instead, the district court erred in submitting these legal questions to the jury. Thus, we cannot discern upon which possible major life activity the jury rendered its verdict. The jury had no guidance as to which endeavors it could properly consider as major life activities in reaching its decision. ¹ The court's lack of articulation likely resulted from the fact that neither the court nor the parties had the guidance provided by the Supreme Court in Bragdon. Plaintiff may have also failed to properly plead or prove with particularity the major life activity her asserted panic disorder affected, thereby contributing to the district court's error. The Supreme Court in Bragdon made clear that the court, in making determinations of law and formulating jury instructions, is to analyze only the major...