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Recent U.S. Supreme Court decisions clarifying portions of the Americans with Disabilities Act have led a New York Southern District judge to reconsider his earlier ruling and dismiss a claim brought under the ADA. Senior Judge Peter K. Leisure, now obligated to reconsider a plaintiff’s medical condition “as treated” when determining whether he could be considered disabled under the Act, said the Supreme Court’s analysis compelled him to rule for the defendant corporation in Epstein v. Kalvin-Miller International, Inc., 96 Civ. 8158. In January 1999, Leisure rejected Kalvin-Miller’s motion to dismiss claims brought under the ADA and the New York Human Rights Law by Allen Epstein, who had charged that he was fired because he suffered from heart disease and diabetes. Finding that “material issues of fact still existed as to the defendant’s state of mind in firing Mr. Epstein,” Leisure said in the 1999 ruling that Epstein’s conditions sufficed to meet the first prong of establishing a prima facie case under the ADA, i.e., that he was disabled. At the time, Leisure wrote that “even as medically treated, plaintiff’s heart disease limits plaintiff’s ability to engage in the major life activity of walking and to undertake other forms of strenuous activity.” As for Epstein’s diabetes, he said the “failure by the plaintiff to take the necessary medication would have a significant adverse effect on plaintiff’s health and could prove fatal.” Under the then-prevailing standard for determining a disability, Leisure said he was to consider the effect these conditions would have on Epstein “absent medication.” LANDSCAPE CHANGED The company renewed the motion to dismiss after the Supreme Court decided three cases last year — Albertson, Inc. v. Kirkingburg, 527 U.S. 555 (1999); Murphy v. United Parcel Service, 527 U.S. 516 (1999); and Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999). And upon “careful review,” of those decisions, Leisure said the landscape had changed enough to effect Epstein’s claim. Quoting Sutton, he said, that “if a person is taking measures to correct for, or mitigate, a physical or mental impairment, the effects of those measures — both positive and negative — must be taken into account when judging whether that person is ‘substantially limited’ in a major life activity and thus ‘disabled’ under the Act.” “This court must now consider whether either of plaintiff’s medical conditions, IN ITS TREATED STATE, substantially limits one or more of plaintiff’s major life activities,” he said. “Viewing the facts in a light most favorable to plaintiff, the court finds that neither plaintiff’s diabetes nor his heart disease, as treated, substantially limits a major life activity.” Epstein had presented no evidence, he said, that, as treated, either condition would affect his ability to walk. As for his diabetes, Epstein conceded in a deposition that it did not affect his ability to work. Leisure said that Epstein’s heart disease presented a different issue. While, even if treated, it might limit his ability to walk, the real question was whether or not it “substantially limited,” his ability to walk in routine circumstances. Finding that the deposition of Epstein, and the statement of his treating physician, failed to establish a substantial limitation, Leisure said the claim must fail. BROADER STATE LAW But Leisure rejected Kalvin-Miller’s motion to dismiss on the claim under New York’s human rights law, finding that Epstein had stated a prima facie case under that statute’s broader definition of disability. Because a prima facie case can be stated under the New York law by either showing that a person was replaced by someone who did not have their alleged disability or by producing direct evidence of discriminatory conduct, he said “factual issues remain as to defendant’s motive for terminating the plaintiff.” Jeffrey M. Bernbach and Jason Bernbach represented Epstein. Roy W. Gerke, formerly of Clifton, Budd & DeMaria, represented Kalvin-Miller International, Inc.

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