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 without warning which could
result in sudden and/or subtle incapacitation which would endanger her or
others"); Ex. 11 at 21 (FBI Special Agents "have to be able to . . .
handcuff an individual, to defend oneself in an altercation, being [sic]
able to use physical force").
The record establishes that the FBI was concerned that her asthma would
prevent her from engaging in physical confrontations. The remaining
inquiry is whether physical confrontation is a "major life activity." The
EEOC defines "major life activities" as "functions such as caring for
one's self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working." 29 C.F.R. § 1614.203 (a)(3).
Courts have determined that "major life activities" includes breathing,*fn2
reproduction, reading, speaking, walking, and seeing. See Reeves v.
Johnson Controls World Services, Inc., 140 F.3d 144, 152 (2nd Cir. 1998)
(breathing); Bragdon v. Abbott, 524 U.S. 624, 639, 118 S.Ct. 2196, 141
L.Ed.2d 540 (1998) (reproduction); Bartlett v. New York State Board of
Law Examiners, 226 F.3d 69, 79 (2nd Cir. 2000) (reading); Otting v. J.C.
Penney Co., 223 F.3d 704, 709 (8th Cir. 2000) (speaking, walking and
seeing). While physical confrontation may have
been a major life activity in the Neolithic era, the Court holds that
today, at the dawn of the twenty-first century, physical confrontation
does not rise to that level. Therefore, the FBI did not view Ms. Boone as
substantially impaired with respect to a major life activity.
For the forgoing reasons, the Court GRANTS defendant's motion for
summary judgment. The defendant's motion to strike expert witnesses is
DENIED because it is now moot. This case now stands DISMISSED WITH