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FALLACARO v. RICHARDSON

June 6, 1997

BETSY JOLENE FALLACARO, Plaintiff,
v.
MARGARET RICHARDSON, COMMISSIONER, and INTERNAL REVENUE SERVICE, Defendants.



The opinion of the court was delivered by: FRIEDMAN

 This case raises the interesting issue of whether a person whose uncorrected vision is so impaired as to render her legally blind and yet who, with contact lenses, has 20/20 vision, is disabled under the Rehabilitation Act. Plaintiff, who is currently employed as a Revenue Officer with the Internal Revenue Service, was denied a promotion to the job of Special Agent because of her uncorrected eyesight. She brings this action against the IRS under the Rehabilitation Act, 29 U.S.C. § 701 et seq. *fn1"

 I. BACKGROUND

 The following facts are undisputed. Ms. Fallacaro applied for the job of Special Agent, a species of criminal investigator, and was placed on the Best Qualified List ("BQL"). Defs.' Response to Pl.'s Statement of Fact P 5. Plaintiff's uncorrected vision is 20/600 in both eyes. See Letter from Gary Kjome, O.D. (July 31, 1993), Pl.'s Cross Mot., Ex. A at 45. She wears contact lenses which correct her vision to 20/20. The uncorrected vision requirement for a Special Agent is 20/200, and the corrected vision requirement is 20/20 in one eye and 20/30 in the other eye. See U.S. Office of Personnel Qualifications Standards Handbook at IV-B-227 (July 1993), Pl.'s Cross Mot., Ex. B.

 In August 1993, the IRS learned that plaintiff's uncorrected vision did not meet the agency's requirements. Another individual was offered the position of Special Agent which he declined. *fn2" The position was reannounced and "plaintiff was not considered [for it], on account of safety concerns, given her uncorrected vision status which thus rendered her otherwise unqualified for the position." Defs.' Statement of Undisputed Fact P 9. On August 31, 1993, plaintiff filed a request for a waiver of the uncorrected vision standard which was denied on April 28, 1994. Pl.'s Statement of Undisputed Fact P 11; Defs.' Response to Pl.'s Statement of Undisputed Fact P 11; Declaration of Darlene R. Berthod ("Berthod Decl.") P 8-9 (Apr. 4, 1996). Nearly two years later, the IRS revisited the waiver issue, met with plaintiff, but ultimately denied her request for a waiver. See Berthod Decl. PP 11-13; Memo for File, attachment to Declaration of Melanie Willford ("Willford Decl.") (Mar. 29, 1996) (reflecting notes taken at May 16, 1995 meeting).

 There is a factual dispute over the nature of the denial of plaintiff's waiver request. Plaintiff characterizes the IRS as having a blanket "no waiver" policy, while defendants contend that the IRS made an individualized determination that plaintiff was unqualified based on safety concerns because of her vision. Defendants admit that plaintiff continues to be denied consideration for a position as Special Agent because her vision does not meet the Service's uncorrected vision standard. Pl.'s Statement of Fact P 12; Defs.' Response to Pl.'s Statement of Fact P 12. The IRS also states that it "considers plaintiff medically ineligible" for the job although not "handicapped." Defs.' Mot. to Dismiss at 3 n.2.

 Defendants have moved to dismiss, arguing that the Court lacks subject matter jurisdiction because plaintiff's vision is completely correctable and she therefore is not a "handicapped individual" within the meaning of the Rehabilitation Act. Defendants also argue that the IRS did not regard plaintiff as handicapped. Plaintiff has moved for partial summary judgment on all issues except damages.

 II. THE REHABILITATION ACT

 
any person who (i) has a physical or mental impairment which substantially limits one or more of such person's major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment.

 29 U.S.C. § 706(8)(B). *fn3" "Major life activities" are defined by regulation as "functions, such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. §§ 1613.702(c), 1630.2(i).

 In order to establish a prima facie case of discrimination under the Act, a plaintiff must show (1) that plaintiff is an individual with a disability within the meaning of the Act, (2) that plaintiff is otherwise qualified for the job, and (3) that plaintiff was adversely treated or denied the benefits of her position solely because of her handicap. Chandler v. City of Dallas, 2 F.3d 1385, 1390 (5th Cir. 1993), cert. denied, 511 U.S. 1011, 114 S. Ct. 1386, 128 L. Ed. 2d 61 (1994). The inquiry into whether a person is disabled is an individualized one and must be determined on a case-by-case basis. Forrisi v. Bowen, 794 F.2d 931, 933 (4th Cir. 1986).

 In order to qualify as a person with a disability, plaintiff must show both that she is "impaired" and that the impairment "substantially limits a major life activity." At the risk of belaboring the obvious, not all impairments are substantially limiting. EEOC regulations state that "many impairments do not impact an individual's life to the degree that they constitute disabling impairments." 29 C.F.R. pt. 1630 App. § 1630(2)(j). Furthermore, "the inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working." 29 C.F.R. § 1630.2(1)(ii); see Hamm v. Runyon, 51 F.3d 721, 726 (7th Cir. 1995); Heilweil v. Mount Sinai Hospital, 32 F.3d 718, 723 (2d Cir. 1994) ("An impairment that disqualifies a person from only a narrow range of jobs is not considered a substantially limiting one," so that an employee with asthma who was discharged because she could no longer work in the basement was not disabled), cert. denied, 513 U.S. 1147, 130 L. Ed. 2d 1063, 115 S. Ct. 1095 (1995). *fn4"

 The line between an "impairment" and a "disability" is not always easy to draw, but courts have generally found that the statutory insistence that a "major life activity" be "substantially impaired" excludes from the coverage of the Act those impairments that do not actually alter a person's general quality of life or ability to function. This is so even though the impairment may have led to a discrete adverse employment consequence. In an oft-cited opinion, the Fourth Circuit described the Rehabilitation Act as providing protection for those who suffer from severe disabilities and not commonplace or minor impairments:

 
The Rehabilitation Act assures that truly disabled, but genuinely capable, individuals will not face discrimination in employment because of stereotypes about the insurmountability of their handicaps. It would debase this high purpose if the statutory protections available to those truly handicapped could be claimed by anyone whose disability was minor and whose relative severity of impairment was widely shared. Indeed, the very concept of an impairment implies a characteristic that is not ...

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