Reference no: EM133045334

Gogos v. AMS Mechanical Systems, 737 F.3d 1170 (7th Cir. 2013)

In one of the first appellate court cases substantively to apply the ADA Amendments Act in an employment discrimination case, the Seventh Circuit offers helpful definitive language. In this case, the plaintiff, an individual with high blood pressure, was terminated from his position. The Seventh Circuit reversed and remanded the district court's order granting summary judgment and discussed the EEOC's regulatory language, episodic conditions, mitigating measures, and short-term conditions.

Specifically, the Seventh Circuit held that, even if the plaintiff's blood pressure spike and vision loss manifested themselves in an episodic way, episodic conditions are now covered by the ADA. It also found that short-term disabilities can be covered by the ADA, citing the appendix to the EEOC regulations. The Seventh Circuit held that the plaintiff's blood pressure spike and intermittent blindness could substantially limit two of his major bodily functions, eyesight and circulatory function. Finally, the Seventh Circuit explained that courts must disregard the ameliorative effects of mitigating measures when determining whether an individual has a disability under the ADA, and, thus, the ameliorative effects of the plaintiff's blood pressure medication must be disregarded.

Gogos, a pipe welder with forty-five years experience, has taken medication to reduce his elevated blood pressure for more than eight years. He began working for AMS in December 2012 as a welder and pipe-fitter. The next month, his blood pressure spiked to "very high," and he experienced intermittent vision loss (sometimes for a few minutes at a time). Shortly after reporting to work on January 30, 2013, Gogos discovered that his right eye was red, and he requested and received from his supervisor leave to seek immediate medical treatment for his blood pressure and ocular conditions. As Gogos left the work site, he saw his general foreman and told him that he was going to the hospital because "my health is not very good lately." The foreman immediately fired him

A claim for relief under Title I of the ADA, 42 U.S.C. § 12112(a), requires Gogos to allege facts showing that "(1) he is 'disabled'; (2) he is qualified to perform the essential function of the job either with or without reasonable accommodation; and (3) he suffered an adverse employment action because of his disability."221 E.E.O.C. v. Lee's Log Cabin, Inc.; Dargis v. Sheahan. Since Gogos was discharged after January 1, 2009, the 2008 amendments to the ADA, which expanded the Act's coverage, apply to his claim.

Gogos alleged sufficient facts plausibly showing that he is disabled. The ADA defines "disability" as "(A) a physical or mental impairment that substantially limits one or more major life activities . . .; (B) a record of such an impairment; or (C) being regarded as having such an impairment. . . ." 42 U.S.C. § 12102(1). Under the 2008 amendments, a person with an impairment that substantially limits a major life activity, or a record of one, is disabled, even if the impairment is "transitory and minor" (defined as lasting six months or less). Likewise, "[a]n impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active."222 42 U.S.C. § 12102(4)(D).

Based on these provisions, Gogos's episode of a blood-pressure spike and vision loss are covered disabilities. He attributes both problems to his longstanding blood-pressure condition, and the ADA's implementing regulation lists hypertension as an example of an "impairment[] that may be episodic." Under the 2008 amendments, "[t]he fact that the periods during which an episodic impairment is active and substantially limits a major life activity may be brief or occur infrequently is no longer relevant to determining whether the impairment substantially limits a major life activity."223 29 C.F.R. Pt. 1630, App. at Section 1630.2(j)(1)(vii). Instead, the relevant issue is whether, despite their short duration in this case, Gogos's higher-than-usual blood pressure and vision loss substantially page 766impaired a major life activity when they occurred. Construing the complaint generously and drawing reasonable inferences in Gogos's favor, we conclude that they did. Gogos alleges that his episode of "very high" blood pressure and intermittent blindness substantially impaired two major life activities: his circulatory function and eyesight. Accordingly, he has alleged a covered disability.

Moreover, Gogos's alleged chronic blood-pressure condition-for which he has taken medication for more than eight years-could also qualify as a disability. The amended ADA provides that when "determin[ing] whether an impairment substantially limits a major life activity[,] the ameliorative effects of mitigating measures such as . . . medication"224 are not relevant. The interpreting regulation explains the new law by way of an example directly on point here: "[S]omeone who began taking medication for hypertension before experiencing substantial limitations related to the impairment would still be an individual with a disability if, without the medication, he or she would now be substantially limited in functions of the cardiovascular or circulatory system."225 29 C.F.R. Pt. 1630, App. at Section 1630.2(j)(1)(vi). Thus, even if Gogos had not experienced the episode of elevated blood pressure and vision loss, he could qualify as disabled due to his chronic blood-pressure condition.

Gogos alleges facts sufficient to satisfy the remaining elements necessary to state a claim for relief under Title I of the ADA. He alleges that he had forty-five years of experience as a pipe welder and that he worked for AMS as a welder and pipe fitter for more than a month before he was fired; thus, he adequately pleads that he was qualified to perform the essential functions of his job. Peters v. City of Mauston. And he alleges that he suffered an adverse employment action because of his disability: he asserts that immediately after he reported his medical conditions to his foreman at AMS, the foreman fired him.

We VACATE the dismissal and REMAND for further proceedings consistent with this opinion. On remand the district court should consider Gogos's application to proceed in forma pauperis and, in light of his limited education and English fluency, his request for counsel.

Case Questions

Are episodic conditions covered by the ADAAA? Would they have been covered if Gogos had experienced high blood pressure before 2008?

Does it matter whether Gogos's condition can be treated with medicine? If there is effective treatment available for a disability, is that person still protected under the ADAAA?

Was Gogos otherwise qualified for his job? Was he eligible to state a claim for relief? What form of relief might Gogos's employer offer? Can you imagine a situation in which Gogos would not be eligible for relief?