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MacLean v. State8/2/1999
ered entity entertain misperceptions about the individual--it must believe either that one has a substantially limiting impairment that one does not have or that one has a substantially limiting impairment when, in fact, the impairment is not so limiting." Sutton, 1999 WL 407488 at *12. See also Murphy v. United Parcel Service, Inc., ___ U.S. ___, 119 S. Ct. 2133, ___ L. Ed. 2d ___ (1999).
The record is devoid of facts to establish a prima facie claim under either of those two theories. MacLean's counsel conceded as much at oral argument. Contrary to the bald assertion in her brief that " he evidence was overwhelming that was regarded as having a disability (whether or not she actually had one)," the record supports no such finding or inference. Rather, the record reveals that both Bowman and Jackson, at best, were skeptical of MacLean's air quality complaints and health-related claims and certainly did not "regard" her as having a physical impairment that substantially limited any of her major life activities. 42 U.S.C. § 12102(2)(C). That the Department ultimately relocated MacLean to a different building does not alter that Conclusion. See Colwell v. Suffolk County Police Dep't, 158 F.3d 635 (2d Cir. 1998) (providing accommodation does not concede disability); cf. Capitano v. State, 178 Ariz. 599, 603, 875 P.2d 832, 836 (App. 1993) (that employer found employee "categorically unfit for a particular job" does not necessarily establish that employer "regarded" employee as having impairment under Federal Rehabilitation Act, 29 U.S.C. § 706(8)(B) (now § 705(20)(B)). Accordingly, the trial court properly granted summary judgment in favor of the state on the subsection (C) claim.
C. Retaliation Claim
The ADA prohibits retaliation against employees who exercise their rights under the ADA. 42 U.S.C. § 12203(a).() A prima facie case of retaliation under the ADA requires proof that (1) plaintiff engaged in protected activity; (2) she suffered an adverse employment action; and (3) a causal connection existed between the two. Barnett v. U.S. Air, Inc., 157 F.3d 744 (9th Cir. 1998); Krouse v. American Sterilizer Co., 126 F.3d 494 (3d Cir. 1997). The state contends MacLean's "retaliation claim fails on all three elements." Analysis of ADA retaliation claims parallels the analytical framework employed for retaliation claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a). Krouse; Soileau v. Guilford of Maine, Inc., 105 F.3d 12 (1st Cir. 1997). Although the evidence by no means clearly establishes retaliation here, we find it sufficient to defeat summary judgment.
Contrary to the state's argument, MacLean's repeated requests for accommodation, supported by her doctor's June 22, 1995 letter that she mentioned to Bowman in June and submitted to the Department in October, constituted protected activity. See, e.g., Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1136 (8th Cir. 1999) (deaf plaintiff's requests for telecommunications device "were protected communications"); Soileau, 105 F.3d at 16 (although plaintiff "did not literally oppose any act or practice, but simply requested an accommodation, which was given[,] t would seem anomalous . . . to think Congress intended no retaliation protection for employees who request a reasonable accommodation unless they also file a formal charge"); Barker v. International Paper Co., 993 F. Supp. 10, 16 (D. Me. 1998) ("requesting an accommodation for a disability constitutes a protected activity under the ADA"); Garza v. Abbott Lab., 940 F. Supp. 1227, 1244 (N.D. Ill. 1996) (plaintiff who "engaged in statutorily protected expression by requesting accommodation for her disability" and thereafter denied access to re
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