In Berry v. T-Mobile USA, Inc., No. 05-1533, 2007 U.S. App. LEXIS 15258 (10th Cir. June 27, 2007), the Tenth Circuit rejected the employee's argument that her employer's knowledge of her MS and suggestion that she apply for, and subsequent approval of, FMLA leave is evidence that T-Mobile considered Berry to be disabled within the meaning of the Americans with Disabilities Act ("ADA").
The ADA defines "disability" as (1) a physical or mental impairment that substantially limits one or more of the major life activities of an individual; (2) a record of such impairment; or (3) being regarded as having such an impairment. 42 USC 12102(2).
EEOC regulations provide three ways an individual may be "regarded as having a disability": (1) the individual may have an impairment that is not substantially limiting but is perceived by the defendant as constituting a substantially limiting impairment; (2) the individual may have an impairment that is substantially limiting only because of the attitudes of others toward the impairment; and (3) the individual may have no impairment at all but is regarded by the defendant has having a substantially limiting impairment. 29 CFR 1630.2(l).
The Tenth Circuit reasoned that the leave provisions of the FMLA are "wholly distinct from the statutory definition of "disability." While there may be some parallels between the ADA and FMLA, "applicable regulations explicitly state that ADA's 'disability' and the FMLA's 'serious health condition' are different concepts and must be analyzed separately. Given the very different focus of the two statutory protections, Kavanah's suggestion to apply for FMLA leave and T-Mobile's approval of Berry's application does not demonstrate an issue of fact as to whether Berry was considered disabled under the ADA. Consequently, Berry failed to present an case of discrimination under the ADA."
Comment: The decision of the Tenth Circuit is in line with decisions issued by the Sixth, Eighth, and Eleventh Circuits on this point. Without more, employer awareness of an employee's FMLA covered condition coupled with the suggestion that the employee apply for, and the employer approval of, FMLA leave does not constitute evidence that the employer "regarded" the employee as disabled within the meaning of the ADA.
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