her relationship with her husband and her children and that it "impacted" her life. (Pl.'s Decl. PP 47-48.) Plaintiff's sweeping statements are insufficient to create a genuine issue of material fact. That Williams' threats affected Plaintiff does not necessarily mean that they led to psychological problems that, in turn, substantially limited her major life activities.
Plaintiff's husband, Dan Muller, makes two statements of note in his declaration, neither of which raises an issue of material fact. First, he states that "beginning in June 1993, my wife was placed on heavy doses of prescribed medication. Her condition impaired her vision, prevented her from driving, and substantially impaired her ability to take care of our three (3) children. She was sleeping nearly seventeen (17) hours per day." (Dan Muller Decl. P 3.) Mr. Muller's statement, however, does not contradict Dr. Brickman's statement in his September 15, 1993 report that he took Plaintiff off her medication in September 1993. In other words, Plaintiff might have suffered side effects from medication in the summer of 1993, but there is no indication that the side effects of the medication stayed with Plaintiff after September 1993. Second, Mr. Muller states in an oblique and conclusory manner that his marital relations with his wife have suffered. (Dan Muller Decl. P 4.) Mr. Muller does not state the cause of the decline in his marital relations, nor does he say when the Mullers' marital relations first were "affected substantially." Plaintiff also fails to point to any authority or to offer any analysis suggesting that loss of consortium is a "disability" as contemplated by the ADA.
The declaration of Jane Amsler, Ph.D., also fails to raise a genuine issue of material fact. First, Amsler states that "it does appear that ANNE MULLER suffered from extreme anxiety and depression as a consequence of the events on the job in April of 1993." (Amsler Decl. P 3 (emphasis added).) In addition, Amsler suggests, though she does not state as a matter of fact, that at least for some period of time, Plaintiff could not take care of herself or her children. (Amsler Decl. P 4.) Amsler does not state how long Plaintiff's anxiety and depression lasted, nor does she say anything to contradict Dr. Brickman's September 15, 1993 assessment that Plaintiff's psychological problems had declined by mid-September and that Plaintiff had begun to put her life back together. Amsler states that Plaintiff now is afraid to go out at night and adds that Plaintiff's "residual and definitely limiting anxiety affects her daily functioning now." (Amsler Decl. P 7.) Amsler fails to make any specific statements about whether Plaintiff's anxiety substantially limited her ability to engage in major life activities. Amsler also fails to offer any insight into Plaintiff's condition in late 1993 or early 1994, the time surrounding Plaintiff's vocational rehabilitation and ultimate termination by Defendant.
Finally, Dr. Brickman's August 20, 1993 report does not indicate that Plaintiff had a permanent or even long-term impairment that substantially limited her ability to work. Dr. Brickman speculates in the August 20, 1993 report that plaintiff might need "a different job placement, conceivably even some other sort of employment where she no longer had to deal with the public." (Pl.'s Notice of Lodgment Ex. 4 at 1). Dr. Brickman, however, states in the August 20, 1993 report that Plaintiff remained "Temporarily Totally Psychiatrically Disabled" and recommends that she be continued on disability for two more weeks.
Plaintiff's psychiatric disability became permanent and stationary less than one month later, and at that time Dr. Brickman found that Plaintiff's impairment did not substantially limit her ability to hold down a job requiring contact with the public. Dr. Brickman's August 20, 1993 report does not create a genuine issue of material fact because it does not suggest anything about the severity of Plaintiff's impairment once it became permanent and stationary.
Plaintiff's reliance on the August 20, 1993 report is like a person who suffered a broken leg relying on an x-ray of the fractured bone one week after the doctor placed it in a cast to show that he was disabled.
The evidence on which Plaintiff relies suffers from two shortcomings. First, the evidence regarding the diagnosis of Plaintiff's psychological problems comes from the period before her condition became permanent and stationary. As a result, the evidence fails to dispute Defendant's evidence showing that Plaintiff's psychological impairment was of limited duration and did not substantially limit a major life activity. Second, the statements on which Plaintiff relies to show a substantial limitation on a major life activity do not say anything about Plaintiff's ability or inability to engage in any particular major life activity. That the Williams incident "impacted" Plaintiff's life is insufficient to show a disability under the ADA.
Plaintiff falls especially short in her efforts to show a substantial limitation on her ability to work. Plaintiff has not pointed to any evidence showing that her psychological impairments prevented her from holding a job in the same class as the one she held at the Auto Club before her termination. That Plaintiff did not want to return to the insurance industry does not demonstrate that her impairments met the standard for "disability" under the ADA. Plaintiff has offered no information about the availability in her area of claims adjuster jobs or other jobs requiring similar skills, training, and ability.
In short, Plaintiff has failed to point to evidence suggesting the existence of any genuine issue of material fact about whether she had an actual disability under § 12102(2)(A).
2. Plaintiff's "regarded-as" theory of disability
Plaintiff argues in her Opposition that even if she was not actually disabled, she was "disabled" under § 12102(2)(C) of the ADA because Defendant regarded her as having a disability. According to the EEOC, "The legislative history of the ADA indicates that Congress intended [the regarded-as] part of the definition to protect people from a range of discriminatory actions based on 'myths, fears and stereotypes' about disability, which occur even when a person does not have a substantially limited impairment." 1 EEOC Technical Assistance Manual § 2.2(a), reprinted in ADA Manual (BNA) § 90:0512 (1992). Plaintiff has presented no evidence to show that Defendant regarded plaintiff as a person with a disability based on myths, fears, or stereotypes.
Plaintiff argues that Defendant's efforts to accommodate Plaintiff's security concerns demonstrate that Defendant considered Plaintiff disabled. Plaintiff's argument is without merit. Federal courts repeatedly have held that an employer's decision to accommodate an employee or to place the employee on limited duty do not establish a "regarded as" claim under the ADA. For example, in Thompson v. City of Arlington, 838 F. Supp. 1137, 1152 (N.D. Tex. 1993), the court found that "the mere fact that [the defendant] has put [the plaintiff] on restricted duty until it satisfies itself that she is qualified to return to regular duty does not suggest that [the defendant] regards her as having an impairment of the kind contemplated by the ADA." In Forrisi v. Bowen, 794 F.2d 931 (4th Cir. 1986), a Rehabilitation Act case, the court affirmed summary judgment for the defendant. In Forrissi, the plaintiff argued that the defendant regarded him as handicapped because of his acrophobia (fear of heights). The Fourth Circuit, however, found that the plaintiff had presented no evidence to suggest that the defendant ever doubted plaintiff's ability to work in his chosen field; rather, defendant merely thought plaintiff unfit to work as a utility systems repairman above certain altitudes in its plant. Id. at 935.
The District of New Hampshire concluded in a persuasive opinion that the proper test for a "regarded as" claim is "whether the impairment, as perceived, would affect the individual's ability to find work across the spectrum of same or similar jobs." Partlow v. Runyon, 826 F. Supp. 40, 44 (D.N.H. 1993). In Partlow, the court found that the plaintiff had failed to show that the Postal Service considered his back injury a handicap under the Rehabilitation Act:
At most, plaintiff has established that defendant regarded him as unable to satisfy the requirements of a particular mechanic's position due to his particular back problems. This does not render him handicapped under, nor does it entitle him to protection of the Act.
Id. at 46.
In the case at hand, Plaintiff has failed to point to any evidence suggesting that Defendant considered her disabled under the ADA. Defendant's efforts to accommodate Plaintiff's safety concerns and ultimately to help her find employment outside the Auto Club do not suggest that Plaintiff has a valid "regarded as" claim. Plaintiff's workers' compensation attorney and a representative of Defendant agreed that Plaintiff should receive vocational training after Dr. Brickman stated that Plaintiff could not return to her job at the Auto Club. By its actions, Defendant never conceded that Plaintiff was unfit for work as a claims adjuster or that Plaintiff's impairment, as perceived by Defendant, would preclude her from obtaining employment consistent with her training and experience. Instead, all of the evidence before this Court shows that Defendant's efforts at accommodation were responses to Plaintiff's own concerns about her safety and her wishes to enter a new line of work.
In short, Plaintiff has failed to raise a genuine issue of material fact about whether Defendant regarded her as disabled under the ADA.