Equal Employment Opportunity Commission v. Midwest Regional Medical Center LLC

Filing 150

ORDER denying 130 Defendant's Motion to Reconsider Order Based on Newly Discovered Evidence (as more fully set out in order). Signed by Honorable Vicki Miles-LaGrange on 8/18/2014. (ks)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
Plaintiff,
v.
MIDWEST REGIONAL MEDICAL
CENTER, LLC.,
Defendant.

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Case No. CIV-13-789-M

ORDER
Before the Court is Defendant’s Motion to Reconsider Order Based on Newly Discovered
Evidence, filed August 8, 2014. On August 15, 2014, plaintiff Equal Employment Opportunity
Commission (“EEOC”) filed its response. Based upon the parties’ submissions, the Court makes
its determination.
I.

Background
On August 7, 2014, this Court entered an Order [docket no. 123] granting summary

judgment to the EEOC on its claim that Janice Withers (“Withers”) 1 was a person with a
disability as defined by the Americans with Disabilities Act (“ADA”)2. Specifically, the Court
found that Withers was a person with a disability under prong two of the definition of disability
in the ADA. This finding was based on the fact that Withers had a record of a physical
impairment (skin cancer) that substantially limited one or more of her major life activities
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Janice Withers is the charging party on whose behalf the EEOC is bringing this suit.
Disability is defined in the ADA as:
(A) a physical or mental impairment that substantially limits one or
more major life activities of such individual (“prong one”);
(B) a record of such an impairment (“prong two”); or
(C) being regarded as having such an impairment (“prong three”).
42 U.S.C. § 12102(1)(A)(B)(C).
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(normal cell growth). Defendant Midwest Regional Medical Center, LLC. (“MRMC”), pursuant
to Federal Rules of Civil Procedure 54(b), (59)(e), and 60(b), now moves this Court to
reconsider/amend/alter its Order entered August 7, 2014. MRMC specifically asserts that the
grounds for reconsideration are “newly discovered evidence not previously available that reveals
new information regarding Withers’ alleged disability and any substantial limitation on a major
life activity.” MRMC’s Mot. to Recons. at 1. MRMC requests this Court “deny the Plaintiff’s
Motion for Partial Summary Judgment as to the disability of Janice Withers under the second
prong of disability (“record of”) as defined by the Americans with Disabilities Act (“ADA”).” Id.
II.

Discussion
“Grounds warranting a motion to reconsider include (1) an intervening change in the

controlling law, (2) new evidence previously unavailable, and (3) the need to correct error or
prevent manifest injustice.” Servants of the Paraclete v. John Does I-XVI, 204 F.3d 1005, 1012
(10th Cir. 2000). A motion to reconsider is appropriate “where the court has misapprehended the
facts, a party’s position, or the controlling law” but is not appropriate “to revisit issues already
addressed or advance arguments that could have been raised in prior briefing.” Id.
MRMC contends that newly acquired evidence from Dr. Craig Abbott 3, Withers’ skin
cancer physician, shows that “a genuine issue of material fact exists on the question of whether
Withers had a condition that substantially limited a major life activity.” MRMC’s Mot. to
Recons. at 3. MRMC relies on the Tenth Circuit case Doebele v. Sprint/United Mgmt. Co., 342
F.3d 1117 (10th Cir. 2003), “where the [Tenth] [Circuit] found that there was no ‘record of
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On August 6, 2014, both parties conducted a video deposition of Dr. Abbott. During the
deposition, Dr. Abbott identified a document Janice Withers would have received prior to
receiving her skin cancer treatment. These documents were previously unavailable to either
party. The document provides skin cancer patients with information regarding radiation
treatment including advantages to receiving radiation treatments.
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disability’ for a temporary condition that did not affect work or other life activities.” MRMC’s
Mot. to Recons. at 5. The Tenth Circuit in Doebele articulated the standard of review in
determining when a physical or mental impairment is substantially limiting under the ADA as:
(i) Unable to perform a major life activity that the average person
in the general population can perform; or
(ii) Significantly restricted as to the condition, manner or duration
under which an individual can perform a particular life activity as
compared to the condition, manner, or duration under which the
average person in the general population can perform the same
major life activity.
Doebele, 342 F.3d at 1130. The Doebele court goes on to state:
In making this determination we consider three factors: (1) the
nature and severity of the impairment; (2) the duration or expected
duration of the impairment; (3) the permanent or long term impact
or the expected permanent or long term impact of or resulting from
the impairment.
Id.
The EEOC contends that the ruling in Doebele was prior to the Americans with
Disabilities Act Amendments Act of 2008 (“ADAAA”)4 and is not relevant to the instant case.
The ADAAA specifically overturned two United States Supreme Court cases Sutton v. United
Air Lines, Inc. 527 U.S. 471 (1999) and Toyota Motor Mfg., Ky., Inc., v. Williams, 534 U.S. 184
(2002). In Toyota, the Court held:
[T]he terms substantially and major in the definition of disability
need to be interpreted strictly to create a demanding standard for
qualifying as disabled under the ADA, and that to be substantially
limited in performing a major life activity under the ADA, an
individual must have an impairment that prevents or severely
restricts the individual from doing activities that are of central
importance to most people’s daily lives.
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The ADAAA was signed into law on September 25, 2008, and became effective
January 1, 2009. The ADAAA sought to broaden the scope of the ADA, as Congress had
originally intended.
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29 C.F.R. § 1630 App. (internal quotations omitted) (citing Toyota, 534 U.S. at 197-198). In
enacting the ADAAA Congress found that:
(5) the holding of the Supreme Court in Toyota Motor
Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002)
further narrowed the broad scope of protection intended to be
afforded by the ADA;
(6) as a result . . . lower courts have incorrectly found in individual
cases that people with a range of substantially limiting
impairments are not people with disabilities;
(7) in particular, the Supreme Court, in the case of Toyota Motor
Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002),
interpreted the term “substantially limits” to require a greater
degree of limitation than was intended by Congress; and
(8) Congress finds that the current Equal Employment Opportunity
Commission ADA regulations defining the term “substantially
limits” as “significantly restricted” are inconsistent with
congressional intent, by expressing too high a standard.
Americans with Disabilities Act Amendments Act of 2008, Pub. L. No. 110–325, §2(a)(5)-(8),
122 Stat. 3553 (2009). As a result of Congress’ actions in the ADAAA, the Court finds that
Doebele is not relevant to the instant case. Specifically, the Court finds that the standard of
review articulated in Doebele for determining if a physical impairment substantially limited a
major life activity came from Pack v. Kmart Corp., 166 F.3d 1300, 1305 (10th Cir. 1999). Pack
quoted the standard of review directly from Sutton and 29 C.F.R. § 1630.2(j)(1). The ADAAA
overturned Sutton and amended 29 C.F.R. § 1630.2(j)(1) to now state:
An impairment is a disability within the meaning of this section if
it substantially limits the ability of an individual to perform a
major life activity as compared to most people in the general
population. An impairment need not prevent, or significantly or
severely restrict, the individual from performing a major life
activity in order to be considered substantially limiting.
Nonetheless, not every impairment will constitute a disability
within the meaning of this section.

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29 C.F.R. § 1630.2(j)(1)(ii). Accordingly, the Court finds that Doebele is not relevant to
determining the question of whether Withers had a condition that substantially limited a major
life activity.
MRMC also asserts the Court should reconsider its Order based on newly discovered
evidence, a pamphlet from Dr. Abbott, that Withers would have received prior to receiving her
treatments, stating there was “No restrictions on work or activities.” MRMC’s Mot. to Recons. at
5 (citing Ex. 4 Radiation (X-Ray) Therapy pamphlet from Dr. Craig Abbott). The EEOC
contends this newly discovered evidence is not relevant because the major life activity of
Withers that was substantially limited by her skin cancer was not working, but was normal cell
growth. The Court agrees with the EEOC and finds that Congress, when it amended the ADA,
“explicitly defin[ed] ‘major life activities’ to include the operation of ‘major bodily functions.’”
29 C.F.R. 1630. App. As the Court stated in its Order,
Major life activities includes in part:
the operation of major bodily function, including but not limited to,
functions of the immune system, normal cell growth, digestive,
bowel, bladder, neurological, brain, respiratory, circulatory,
endocrine, and reproductive functions.
Court’s August 7, 2014 Order [docket no. 123] (citing 42 U.S.C. § 12102(2)(B))(emphasis
added). Further, “an impairment that substantially limits one major life activity need not
substantially limit other major life activities in order to be considered a substantially limiting
requirement.” 29 C.F.R.§ 1630.2(j)(1)(viii). As a result, the fact that Withers’ skin cancer did not
substantially limit her from working is not determinative in this case.
Lastly, MRMC contends that 29 C.F.R. § 1630.2(j)(3)(ii)(iii) creates a question of fact by
stating that “[g]iven [the] inherent nature, [cancer] as a factual matter, virtually always [will] be
found to impose a substantial limitation on a major life activity.” The Court disagrees with
MRMC’s contention and finds that
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[T]he ADAAA was adopted to specifically address certain
impairments that were not receiving the protection that Congress
intended – cancer, HIV-AIDS, epilepsy, multiple sclerosis,
amputated and partially amputated limbs, post-traumatic stress
disorder, intellectual and developmental disabilities – not minor,
transitory impairments, except if of such a severe nature that one
could not avoid considering them disabilities.
Koller v. Riley Riper Holin Colagreco, 850 F. Supp. 2d 502, 513 (E.D. Pa. 2012) (citing 154
Cong. Rec. H8286 (2008) (statement of Rep. George Miller)) (emphasis added). The EEOC
contends that in an August 8, 2014, deposition, MRMC’s expert witness, Dr. Carl Bogardus,
testified that “at the end of successful treatment, Withers’ cancer would be in remission unless
and until it reoccurred”, thus, as a matter of law Withers was “actually disabled” under the ADA.
EEOC’s Reply at 9. The Court finds that Withers had a history of skin cancer, which
substantially limited her normal cell growth, thus making her an individual with a disability as
defined by the ADA. Accordingly, MRMC has not presented any grounds that would warrant the
Court to reconsider its August 7, 2014 Order, in which it found that the EEOC was entitled to
summary judgment as to its claim that Withers is a person with a disability as defined by the
ADA.
III.

Conclusion
Accordingly, for the reasons set forth above, the Court DENIES Defendant’s Motion to

Reconsider Order Based on Newly Discovered Evidence [docket no. 130].
IT IS SO ORDERED this 18th day of August, 2014.

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