 |
 |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|
|
|
|
MacLean v. State8/2/1999
ide answers to straightforward, uncomplicated questions during her sworn deposition," id. at 724, nor does her affidavit "differ so drastically from her prior deposition testimony" that it should be ignored. Id. at 723. Finally, there is no indication here that MacLean's affidavit is a "sham" designed solely to avoid summary judgment. Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir. 1991). Accordingly, we decline the state's invitation to disregard the affidavit.
B. Disability Claim
The ADA prohibits certain employers from discriminating "against a qualified individual with a disability because of the disability of such individual in regard to . . . discharge of employees . . . and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a); see also § 12111(2). Section 12102(2) of the ADA defines "disability" 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."
A discrimination claim under the ADA requires proof that the plaintiff: (1) is disabled within the meaning of the ADA; (2) is qualified to perform the essential functions of the job with or without reasonable accommodation; and (3) was discriminated against or terminated by the employer because of the disability. Cooper v. Neiman Marcus Group, 125 F.3d 786 (9th Cir. 1997). The state does not dispute prong (2) and does not argue prong (3), which encompasses an employer's failure to provide reasonable accommodation for a disability of which it has notice. 42 U.S.C. § 12112(b)(5)(A); EEOC Regulations to Implement The ADA (EEOC Regulations), 29 C.F.R. § 1630.9 (West, WESTLAW through June 15, 1999; 64 FR 32106); Hendler v. Intelecom USA, Inc., 963 F. Supp. 200 (E.D.N.Y. 1997). Rather, the state only challenges the first part of the test, contending that MacLean "was not disabled during her employment at Education" because " er condition did not substantially limit any major life activity." MacLean's "sick building syndrome," the state argues, only limited her "in performing her job in the Education building," and any adverse health conditions "she experienced during her employment at Education were limited to the time she spent in [that] building."
According to MacLean, the facts support a finding of disability under subsections (A) and/or (C) of 42 U.S.C. § 12102(2). A plaintiff must establish three elements to prove a "disability" under subsection (A): (1) "physical or mental impairment"; (2) "substantially limits"; and (3) "major life activities." See Bragdon v. Abbott, 524 U.S. 624, 118 S. Ct. 2196, 141 L. Ed. 2d 540 (1998); Thompson v. Holy Family Hosp., 121 F.3d 537 (9th Cir. 1997). The EEOC Regulations, 29 C.F.R. §§ 1630.2(h) through (j), define those elements as follows: a "physical impairment" includes " ny physiological disorder, or condition . . . affecting one or more of the following body systems: . . . respiratory (including speech organs) . . . "; 29 C.F.R. § 1630.2(h)(1); "substantially limits" means, inter alia, " nable to perform a major life activity that the average person in the general population can perform," or " ignificantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity"; id. § 1630.2(j)(l)(i) and (ii); and " ajor ife ctivities means functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking,
Page 1 2 3 4 5 6 7 8 9 10 Arizona Employee Leasing Services
Employee Leasing Services
|
| |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|