The opinion of the court was delivered by: Lamberth, District Judge.
MEMORANDUM OPINION AND ORDER
Plaintiff Mary Boone, an applicant for a Special Agent position with
the Federal Bureau of Investigation (FBI), was denied a position as a
Special Agent because she suffers from asthma. She has filed suit claiming
that the denial of her application was a violation of her rights under
the Rehabilitation Act, 29 U.S.C. § 701 et seq. The defendant has
filed a motion for summary judgment and a motion to strike plaintiff's
expert witnesses. For the reasons stated below, the Court grants the
defendant's motion for summary judgment, and denies as moot her motion to
strike the plaintiff's expert witnesses.
Ms. Boone applied for a position as a special agent with the FBI in
November 1995 and received a conditional offer of employment in February
1996. One of the conditions of employment was the satisfactory completion
of a pre-employment physical examination.
That examination was performed in November of 1996 by Dr. Ruby, a
contract doctor with the FBI. The physician determined that Ms. Boone was
medically qualified to serve as a Special Agent. However, Ms. Boone
stated on a "Standard Form 88" filled out during this visit that she was
taking medicine for asthma, and had been hospitalized as a result of
severe asthmatic episodes three times, in November 1995, Spring 1994 and
Spring 1985. See Defendant's Memorandum, Ex. 3.
Upon receipt of the Form 88, the FBI's Health Care Unit (HCPU)
determined that further information was needed to evaluate Ms. Boone's
physical fitness for service as an FBI agent. The HCPU sent a "Pulmonary
Questionnaire" to Ms. Boone and asked her to have a physician of her
choice complete ft. On this form, her physician, Dr. Wynn indicated that
the triggers for Ms. Boone's asthma attacks were cold air, cats, smoke,
allergies, and viral illness. See Defendant's Memorandum, Ex. 8. Dr. Wynn
also indicated that Ms. Boone had suffered two or three severe asthma
attacks in 1995 and had been hospitalized twice that year. Based on this
questionnaire, the reviewing physician, Dr. Scott, recommended that Ms.
Boone be medically disqualified from the Special Agent position.
After going through a set of administrative reviews, the news that she
had been deemed unqualified for the Special Agent position reached Ms.
Boone. She then looked at the Pulmonary Questionnaire again and
determined that there were some erroneous answers. She was allowed to
submit additional materials from Dr. Wynn and from a pulmonary
specialist, Dr. McCabe. After submitting this supplemental material, she
was determined to be physically unfit for service as an FBI Special Agent
by another FBI doctor, Dr. Joyce.
After an internal EEO process, Ms. Boone filed this suit on January
The Rehabilitation Act provides that "[n]o otherwise qualified
individual with a disability . . . shall, solely by reason of her or his
disability, be . . . subjected to discrimination under any program or
activity . . . conducted by any Executive agency . . . ."
29 U.S.C. § 794. The term "individual with a disability" is defined
by 29 U.S.C. § 705 (20)(B) to mean "any person who . . . has a
physical or mental impairment which substantially limits one or more of
the person's major life activities . . . ."
Defendant argues that Ms. Boone's asthma is not a disability under this
definition. See Defendant's Memorandum at 12. The Supreme Court,
interpreting similar language in the Americans with Disabilities Act
(ADA) held that when considering whether an impairment is a disability
under the ADA the impairment should be considered in its corrected
state. See Sutton, 527 U.S. 471, 482, 119 S.Ct. 2139, 144 L.Ed.2d 450
(1999). Because the ADA's language focuses on the individual nature of
the impairment, the Court reasoned that the inquiry centers on how the
impairment affects the life of the particular individual in question. See
id. The Court found two provisions of the ADA which led it to the result
that an impairment should be considered in its corrected state. First,
the Court found that the language in the ADA that the inquiry is with
regard to the "major life activities of such individual" shows that the
inquiry is focused on the individual, not on the impairment alone. See
Sutton, 527 U.S. at 483, 119 S.Ct. 2139. The Rehabilitation Act's
language is very close to the ADA's language; it states that an
impairment is a disability when it limits "one or more of such person's
major life activities." 29 U.S.C. § 705 (20)(B). Since the language
between the two statutes is very similar, this is strongly suggestive
that the Supreme Court's reasoning in Sutton applies to the
Rehabilitation Act as well.
The Court also found that the use of the present indicative verb form
in the phrase `substantially limits' in the ADA strongly suggests that
the determination whether an impairment is a disability requires a
consideration of the impairment in its corrected state. See id. at 482,
119 S.Ct. 2139. The Court found that "[a] `disability' exists only where
an impairment `substantially limits' a major life activity, not where it
`might', `could', or `would' be substantially limiting if mitigating
measures were not taken." Id. The relevant portion of the Rehabilitation
Act uses the identical terms in the present indicative verb form.
29 U.S.C. § 705 (20)(B)(i). Both of the Supreme Court's textual
arguments about the meaning of the ADA apply with equal force to the text
of the Rehabilitation Act. In addition, the Rehabilitation Act contains
express language that it should be interpreted in accordance with the
ADA. See 29 U.S.C. § 794 (d). For these reasons, the Court finds that
an impairment for the purposes of the Rehabilitation Act must be
considered in its corrected state when determining if it is a disability
under the Act. The Court considers Ms. Boone's asthma in its corrected
state when considering whether it is a disability for the purposes of the
When considered in its corrected state, Ms. Boone's asthma is not a
disability. To be a disability, an impairment must "substantially limit
one or more of such person's major life activities." 29 U.S.C. § 705
(20)(B)(i). The plaintiff has said that she takes medication for her
asthma and that "the medication controls the asthma symptoms."
Defendant's Memorandum, Ex. 17 at 53. She also said that her asthma is
"pretty well under control." Id. at 61. The plaintiff has also said that
she is extremely physically fit, despite her asthma, and is able to
complete the physical fitness test given by the FBI Academy. See
Defendant's Memorandum. Ex. 9 at 5. Ms. Boone is only disadvantaged by
her allergy by not being allowed to be an FBI
Special Agent.*fn1 However, as the Supreme Court has held, merely being
unable to work in one job is not sufficient to qualify as "substantially
impaired". See Murphy v. United Parcel Service, 527 U.S. 516, 523, 119
S.Ct. 2133, 144 L.Ed.2d 484 (1999). Plaintiff has not applied for another
position at the FBI, so she has only been deemed unqualified for the
position of Special Agent. See Defendant's Memorandum, Ex. 17 at 50.
Plaintiff is, in fact, currently employed in the law enforcement field as
a deputy sheriff See id. Ex. 17 at 4. For these reasons, because the only
effect on her life from her asthma is that she cannot become an FBI
Special Agent, and because that is only one job, the Court holds that she
does not have a disability.
The plaintiff has also argued that the FBI viewed her asthma as an
disability even if it is not one. See Plaintiff's Opposition at 14. The
inquiry with this question is whether the FBI perceived Ms. Boone's
asthma as a substantial limit on "one or more of [her] major life
activities." One of the FBI physicians who reviewed Ms. Boone's medical
records found that she was not medically qualified because "[i]n the
event that an asthma attack occurred simultaneously with a personal
confrontation, I believe a special agent would be impaired and
therefore, not be able to defend themself [sic] or others with their
usual abilities." Defendant's Memorandum, Ex. 15 Dr. Joyce Deposition at
53. The FBI expressed this concern about the possibility of Ms. Boone
suffering an asthma attack simultaneously with activities that involve
physical confrontation in other places in the record as well. See, e.g.,
Defendant's Memorandum Ex. 7 at 34 (concern about her participation in
"[s]earches, arrests, [and] fugitive apprehensions"); Ex. 10 at 2 ("Ms.
Boone could experience an acute asthma attack ...