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MacLean v. State8/2/1999
breathing, learning, and working." Id. § 1630.2(i).()
The United States Supreme Court recently stated that the phrase "substantially limits" in subsection (A) "requir that a person be presently--not potentially or hypothetically-- substantially limited in order to demonstrate a disability." Sutton v. United Air Lines, Inc., No. 97-1943, 1999 WL 407488, at *8 (U.S. June 22, 1999). Thus, "the substantial limitations [must] actually and presently exist." Id. at *7. In addition, the Court noted that " he ADA does not define 'substantially limits,' but 'substantially' suggests 'considerable' or 'specified to a large degree.'" Id. at *13, quoting Webster's Third New International Dictionary 2280 (1976). According to the EEOC Regulations, relevant factors in considering whether an impairment substantially limits a major life activity include: "(i) he nature and severity of the impairment; (ii) he duration or expected duration of the impairment; and (iii) he permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment." 29 C.F.R. § 1630.2(j)(2)(i) through (iii).
Although portions of the record certainly support the state's contentions, conflicting evidence in the record and reasonable inferences therefrom preclude summary judgment. The state's view of the facts relating to MacLean's disability claim is too narrow. The record as a whole reveals sufficient evidence, including not only her own affidavit but also Dr. Shelton's, to raise a genuine issue of material fact as to whether she had a "disability" within the meaning of 42 U.S.C. § 12102(2)(A) during her employment with the Department. As the Supreme Court noted in Sutton, "whether a person has a disability under the ADA is an individualized inquiry." Sutton, 1999 WL 407488, at *8. That inquiry often involves factual questions for the trier of fact. See, e.g., Braverman v. Penobscot Shoe Co., 859 F. Supp. 596 (D. Me. 1994).
"Asthma is a physiological disorder that affects the respiratory system, therefore it qualifies as a physical impairment." Horvath v. Savage Mfg., Inc., 18 F. Supp. 2d 1296, 1299 (D. Utah 1998) (footnote omitted). The state does not contend otherwise. Contrary to its argument, however, the record does not support summary judgment on the issue of whether MacLean's impairment "substantially limit one or more of major life activities." 42 U.S.C. § 12102(2)(A). Here, as in Horvath, MacLean "has presented a genuine issue of material disputed fact whether asthma substantially impaired breathing," which obviously is a major life activity.() 18 F. Supp. 2d at 1302. See also Hendler (disputed material facts as to whether plaintiff's asthma substantially limited major life activity of breathing precluded summary judgment); Geuss v. Pfizer, Inc., 971 F. Supp. 164, 170 (E.D. Pa. 1996) (sufficient evidence in record to show that plaintiff's "ability to breathe is significantly restricted in condition, manner, and duration in comparison to the average person in the population").
We reach a different Conclusion, however, with respect to MacLean's claim that the Department allegedly "regarded as having such an impairment," pursuant to 42 U.S.C. § 12102(2)(C). See also 29 C.F.R. § 1630.2(g)(3). As the Court explained in Sutton:
"There are two apparent ways in which individuals may fall within this statutory definition: (1) a covered entity mistakenly believes that a person has a physical impairment that substantially limits one or more major life activities, or (2) a covered entity mistakenly believes that an actual, nonlimiting impairment substantially limits one or more major life activities. In both cases, it is necessary that a cov
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