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A woman who lost her job after she suffered kidney failure has the right to sue under the Americans with Disabilities Act because “cleansing the blood and processing bodily waste” qualifies as a “major life activity” under the ADA, the 3rd U.S. Circuit Court of Appeals has ruled. In its nine-page opinion in Fiscus v. Wal-Mart Stores Inc., a unanimous three-judge panel found that a lower court erred in dismissing the suit on the grounds that impairment of an organ does not, in itself, constitute a limitation on a life activity. “We disagree with the district court’s conclusion that impaired elimination of waste and blood cleansing are nothing more than characteristics of kidney failure,” 3rd Circuit Judge Michael Chertoff wrote. “Rather, they are the effect of kidney failure in the same way that impaired thinking is the effect of organic brain disease,” Chertoff wrote in an opinion joined by 3rd Circuit Judge Samuel A. Alito Jr. and visiting Senior U.S. District Judge Dickinson R. Debevoise of the District of New Jersey. Significantly, Chertoff found that “the fact that the effect of kidney failure is felt on an internal autonomous organic activity is … not incompatible with a finding of substantial limitation of a major life activity.” The ruling revives a suit brought by Cathy A. Fiscus, a former employee of the Wal-Mart subsidiary Sam’s Warehouse Club store in Pittsburgh. According to court papers, Fiscus had worked for Sam’s Club for nearly a decade when she was diagnosed with kidney failure in November 1995. Over the next few years, her condition deteriorated, and in July 1998, she was diagnosed as having end-stage renal disease, or near-total permanent kidney failure. When Fiscus first began in-hospital dialysis treatments three times per week, she continued to work her overnight shift. Due to medical complications, Fiscus later began administering the dialysis process herself every four to six hours. At first she was allowed to perform the dialysis at her work premises. But after a fall left her unable to continue working in the store’s bakery department, Fiscus claims she was offered a job as a “greeter,” but was told she would no longer be granted the accommodation of performing the dialysis in the store. Instead, the suit says, the store manager advised Fiscus to take disability leave, which she did. In September 1999, Fiscus underwent a kidney transplant and was unable to return to work until March 30, 2000. On March 15, 2000, Wal-Mart fired Fiscus because she had been unable to return to work within a year. After Fiscus filed suit under the ADA, Wal-Mart’s lawyer, Bradley A. Schutjer, moved for summary judgment, arguing that she was not “significantly limited in a major life activity.” Fiscus’ lawyer, Samuel J. Cordes of Ogg Cordes Murphy & Ignelzi in Pittsburgh, argued that Fiscus was substantially limited in the major life activities of “processing body waste and cleaning her blood” and “caring for herself.” U.S. District Judge Gary L. Lancaster of the Western District of Pennsylvania sided with Wal-Mart, finding that while end-stage renal disease is a “physical impairment,” the case failed because cleansing the blood and processing bodily waste do not constitute a “major life activity” within the meaning of the ADA. Lancaster adopted the recommendation of U.S. Magistrate Judge Ila Jeanne Sensenich who found that Fiscus’ allegation that she could not cleanse her blood and process waste without mechanical assistance was simply another way of stating that she was “substantially limited in the major life activity of kidney function.” Impairment of an organ, Lancaster found, does not in itself constitute a limitation on a life activity. As a result, Lancaster concluded that, to succeed, Fiscus would have to show that the inability to cleanse blood limited her in doing something else that would be described as a life activity. Now the 3rd Circuit has ruled that Lancaster “erred in [his] point of departure.” Chertoff found that Fiscus never alleged that her disease limited her in the life activity of “kidney function,” but instead had claimed that she was limited in the major life activities of cleansing her blood and processing waste. “By recharacterizing Fiscus’s claim as an allegation ‘that she is substantially limited in the major life activity of kidney function,’ the district court simply assumed away her argument,” Chertoff wrote. Kidney failure was “the impairment,” Chertoff found, while “the consequence” was the impact on the activity of blood cleansing and body waste processing. “It was incorrect for the district court to conflate the two, and to interpret Fiscus’s contention as nothing more than claiming a limitation on the life activity of kidney functions,” Chertoff wrote. Although the ADA does not comprehensively define the meaning of “major life activity,” Chertoff found that they are “conceptually distinct from the physical impairments that give rise to them.” And a major life activity need not involve “externally visible or volitional behavior,” Chertoff found. Courts have held that breathing is a major life activity even though it is “largely involuntary,” Chertoff noted, and the 3rd Circuit has held that thinking also qualifies even though it is “largely internal and invisible.” Chertoff found that the U.S. Supreme Court’s 1998 decision in Bragdon v. Abbott called for a broad interpretation of the term major life activity by holding that a plaintiff who was HIV-positive but had no symptoms of AIDS was substantially impaired in the activity of reproduction. The Bragdon decision, Chertoff said, “teaches several useful lessons in construing the ADA. First, it undercuts any dispositive conceptual difference for ADA purposes between internal, largely autonomous physical activities on the one hand, and external, largely volitional physical activities on the other.” The justices, he said, “found it sufficient that reproduction — although generally not routine — was comparable in importance to life activities such as working and learning.” The lesson of Bragdon, Chertoff found, is that the “touchstone” for deciding what qualifies as a major life activity “is not publicity or frequency, but importance to the life of the individual.” Under that standard, Chertoff found, the act of processing and eliminating waste from the blood qualifies as a major life activity “because, in their absence, death results.” Chertoff also rejected Wal-Mart’s argument that even if cleansing blood was a major life activity, Fiscus’ dialysis treatments fully mitigated the impact of her kidney disease, so that there was no longer a substantial limitation in performing that activity. Wal-Mart cited the U.S. Supreme Court’s 1999 decision in Sutton v. United Airlines Inc. in which the justices held that courts must assess the limitation on a major life activity in light of any corrective measures plaintiff uses to mitigate her impairment. The Sutton decision rejected the claims of visually impaired pilots who were denied jobs due to their need for corrective eyewear. The court concluded that the plaintiffs were not “disabled” because the eyewear had mitigated their impairments. But Chertoff found that the Sutton reasoning didn’t necessarily apply to dialysis because “any evaluation of the mitigating effects of corrective measures must also consider side-effects or other collateral limitations caused by those corrective measures.” In Fiscus’ case, Chertoff found, “the limitations caused by her kidney failure must be weighed in light of her ability to conduct … dialysis but with due regard for any side-effects or residual effects.” The evidence, Chertoff said, showed that dialysis involves “time-consuming and cumbersome processes, requiring specialized equipment and limiting Fiscus’ mobility and other aspects of daily living.” On remand, Chertoff said, Lancaster “should consider whether dialysis eliminated any substantial limitation on the major life activities of cleansing blood and caring for one’s self, bearing in mind collateral and side-effects.”

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