Adkins v. Cabell Huntington Hospital, Inc.

Filing 113

MEMORANDUM OPINION AND ORDER denying 55 Plaintiff's MOTION for Partial Summary Judgment; granting 57 Defendant's MOTION for Summary Judgment. Signed by Judge Robert C. Chambers on 9/23/2011. (cc: attys; any unrepresented party) (skm)

IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION

JESSICA ADKINS,
Plaintiff,
v.

CIVIL ACTION NO. 3:10-0814

CABELL HUNTINGTON HOSPITAL, INC.
a West Virginia Corporation,
Defendant.
MEMORANDUM OPINION AND ORDER

Pending before the Court are the Plaintiff’s Motion for Partial Summary Judgment on Issues
of Liability (Docket No. 55) and the Defendant’s Motion for Summary Judgment (Docket No. 57).
The Court considered the motions, the responses, the replies, and heard argument on the motions
by counsel at the September 12, 2011 pretrial conference. For the reasons explained below,
Plaintiff’s motion (Docket No. 55) is DENIED, Defendant’s motion (Docket No. 57) is
GRANTED.
I
BACKGROUND
Because the Court is granting the Defendant’s motion for summary judgment, the facts are
viewed in the light most favorable to the nonmoving party, the Plaintiff.
Jessica Adkins, the Plaintiff, was hired by Cabell Huntington Hospital, the Defendant, in
June 1998 as a nurse extern. In May of 2006, Ms. Adkins began working in the position of Assistant
Director of Nursing (“ADON”) in the main hospital facility. In the Spring of 2007, the Plaintiff

began experiencing asthma and allergy related symptoms. She took a period of time off work in the
Summer of 2007 and found that her symptoms got better. Immediately upon her return to work, her
symptoms returned. The Plaintiff generally worked one week on and one week off. She continued
to experience symptoms, and noticed that the symptoms would clear up after being out of the main
hospital building for a few days. In October of 2007, Ms. Adkins sought treatment from Doctor
Jeffrey Shaw for her symptoms. As a part of his examination, Doctor Shaw ordered skin allergy and
breathing tests. After the physical examination and the additional tests, the Doctor diagnosed Ms.
Adkins with occupational asthma and determined that the trigger for Ms. Adkins’ occupational
asthma was the main hospital facility. On November 14, 2007, Dr. Shaw advised Ms. Adkins not
to return to work in the main hospital facility.
At this point, the parties disagree as to whether the hospital was informed about the
Plaintiff’s impairment and whether the communications between the parties were sufficient to
trigger the interactive process of accommodation required by the ADA. The preceding facts
regarding Ms. Adkins symptoms and impairment, however, are not in dispute and are the basis for
the Court’s decision.
II
STANDARD OF REVIEW
To obtain summary judgment, the moving party must show that there is no genuine issue as
to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ.
P. 56(a). In considering a motion for summary judgment, the Court will not “weigh the evidence
and determine the truth of the matter[.]” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
Instead, the Court will draw any permissible inference from the underlying facts in the light most

-2-

favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S.
574, 587-88 (1986).
Although the Court will view all underlying facts and inferences in the light most favorable
to the nonmoving party, the nonmoving party nonetheless must offer some “concrete evidence from
which a reasonable juror could return a verdict in his [or her] favor[.]” Anderson, 477 U.S. at 256.
Summary judgment is appropriate when the nonmoving party has the burden of proof on an essential
element of his or her case and does not make, after adequate time for discovery, a showing sufficient
to establish that element. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The nonmoving
party must satisfy this burden of proof by offering more than a mere “scintilla of evidence” in
support of his or her position. Anderson, 477 U.S. at 252.

III
DISCUSSION
A. Plaintiff does not have a disability within the meaning of the ADA
The Plaintiff alleges that her occupational asthma is a disability under the ADA. In order
to establish her claim, Ms. Adkins must prove that her asthma is a physical impairment which
substantially limits her major life activity of breathing. The Supreme Court has set forth a three step
process to be used in applying the definition of disability under the ADA. See Bragdon v. Abbott,
524 U.S. 624, 631 (1998). First, the Court determines whether the Plaintiff suffered from a physical
or mental impairment. See id. Second, the Court identifies the major life activity on which the
Plaintiff relies and determines whether it constitutes a major life activity under the ADA. Finally,
the Court analyzes whether the Plaintiff’s impairment substantially limited the major life activity.
See id. at 639.
-3-

It is not disputed that the Plaintiff’s occupational asthma is a physical impairment or that
breathing is a major life activity under the ADA.1 Only the third step, whether Ms. Adkins
impairment substantially limits her breathing, is in dispute. However, because Plaintiff’s
occupational asthma is triggered only in the main hospital building and because she has shown no
evidence that her condition is triggered in any way outside of Cabell Huntington Hospital’s main
hospital building, the Plaintiff’s occupational asthma does not substantially limit her major life
activity of breathing.
As the Supreme Court has noted in Toyota Motor Manufacturing, Inc. v. Williams, 534 U.S.
184 (2002), for impairments whose symptoms vary widely from person to person, a diagnosis alone
does not indicate whether the individual has a disability within the meaning of the ADA.2 In such
situations, an individual assessment of impairment is necessary. Id. at 198. The relevant regulations
state:
(1) The term substantially limits means:
(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 major life activity as
compared to the condition, manner, or duration under which the average
person in the general population can perform that same major life activity.
(2) The following factors should be considered in determining whether an
individual is substantially limited in a major life activity:

1

Were she to rely on the major life activity of working, the Plaintiff’s claim would similarly
fail. Under Sutton v. United Airlines, Inc., 527 U.S. 471 (1999), a plaintiff must show a limitation
in “a broad class of jobs” in order to sustain an ADA claim based on the major life activity of
working. Id. at 491.
2

Both Sutton and Toyota were superseded by the ADA Amendments Act of 2008, Pub. L.
No. 110-345 § 3406, which took effect on January 1, 2009. This cause of action arose before the
effective date of the 2008 Amendments and therefore, Sutton, Toyota, and the cases that apply them
are all applicable.
-4-

(i) The nature and severity of the impairment;
(ii) The duration or expected duration of the impairment; and
(iii) The 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). Cabell Huntington Hospital does not contest that Adkins has a physical
impairment, but rather argues that Adkins has failed to raise a genuine issue of material fact
about whether her asthma substantially limits her major life activity of breathing. An
examination of the evidence in light of the above factors confirms the Defendant’s position.
Taking all of the Plaintiff’s assertions as true, the nature of her symptoms are transient.
They last no longer than the time spent inside the main hospital plus some period of recovery
after leaving the building. The plaintiff experiences her symptoms only at this particular
workplace and not in any other workplaces or public places. Her symptoms do not affect any of
her daily activities or limit her breathing in any manner or location outside of Cabell
Huntington’s main hospital facility. There is no expected permanent or long term impact since
the Plaintiff experienced symptoms only when she was in the facility. Plaintiff’s occupational
asthma affects her breathing only in one particular building, and she has not alleged that it is
triggered in any other buildings or facilities. Indeed, Plaintiff specifically alleges that she is not
impaired when she is in other facilities and she now works in another health care facility without
difficulty.
Plaintiff relies on Albert v. Smith’s Food & Drug Centers, Inc., 356 F.3d 1242 (10th Cir.
2004) for the proposition that asthma is an impairment which substantially limits the major life
activity of breathing. In Albert, however, the Plaintiff’s asthma required her to avoid a wide
variety of everyday activities and could be triggered by a large number of very common
substances. Conversely, Ms. Adkins’ occupational asthma requires her only to avoid her place
-5-

of employment and, by her own admission, its symptoms rapidly abate as she spends time
outside of the main hospital facility.
A partial survey of asthma-related ADA claims from around the country confirms the
Court’s decision. In Reidman v. John Hewitt & Assoc., No. 2:00-cv-00251 2001 WL 506864
(D. Me. 2001), the district court dismissed an asthma-based ADA claim where the plaintiff had
severe asthma attacks in and out of the workplace. The court concluded that her attacks were
manageable, that her condition was effectively controlled with an inhaler, and that her asthma
did not constitute a substantial limitation on the major life activity of breathing. Id. Similarly, in
Muller v. Costello, 187 F.3d 298 (2d Cir. 1999), the Second Circuit Court of Appeals found that
a state corrections officer whose symptoms were manifested only at work had failed to show
sufficient evidence of a substantial limitation on the major life activity of breathing. The Muller
court emphasized the lack of evidence of “off-the job” impairment. Id. at 314. In Nugent v.
Rogosin Institute, 105 F. Supp.2d 106 (E.D.N.Y. 2000), the district court dismissed a very
similar claim, holding that, “an asthmatic condition which only prevents [the] plaintiff from
working at one job, or a narrow category of jobs, is not a qualifying disability under the ADA. .
.” Id. at 113 (citing Muller v. Costello, 187 F.3d 298 (2d. Cir. 1999)). On the same grounds, the
district court in Saunders v. Baltimore County, Maryland, 163 F. Supp.2d 564 (D. Md. 2001)
dismissed under Fed. R. Civ. P. 12(b)(6), a complaint filed by an asthmatic plaintiff who failed
to allege difficulty breathing outside of his current work environment. Id. at 569.
Based on the foregoing discussion, the plaintiff’s occupational asthma does not qualify as
a disability under the ADA.
B. Plaintiff is not a qualified individual within the meaning of the ADA.

-6-

The ADA protects “qualified individual[s]” from discrimination. 42 U.S.C. § 12112(a)
(2007). A qualified individual is, at minimum, “an individual with a disability. . .” 42 U.S.C. §
12111(8) (2007). In other words, in order to be qualified, an individual must have a disability as
defined in the sections of the ADA discussed above. Ms. Adkins does not have a disability as
defined by the ADA and therefore is not a qualified individual under that statute.

IV
CONCLUSION

For the reasons stated above, the Plaintiff’s Motion for Partial Summary Judgment on the
Issue of Liability (Docket No. 55) is DENIED and Defendant’s Motion for Summary Judgment
(Docket No. 57) is GRANTED.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented parties.

ENTER:

September 23, 2011

ROBERT C. CHAMBERS
UNITED STATES DISTRICT JUDGE

-7-