Alvin Emory v. ASTRAZENECA PHARMACEUTICALS LP Appeal from the United States District Court for the…

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-4751
ALVIN EMORY,
Appellant
v.
ASTRAZENECA PHARMACEUTICALS LP
Appeal from the United States District Court
for the District of Delaware
(D.C. Civil No. 02-cv-01466)
District Judge: Honorable Joseph J. Farnan, Jr.
Argued November 29, 2004
Before: RENDELL, ALDISERT, and MAGILL*, Circuit Judges.
(Filed March 11, 2005)
*The Honorable Frank J. Magill, Senior Judge, U. S. Court of
Appeals for the Eighth Circuit, sitting by designation.

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Barbara H. Stratton (ARGUED)
Knepper & Stratton
1228 North King Street
Wilmington, Delaware 19801
Attorney for Appellant
Susan R. Oxford (ARGUED)
Equal Employment Opportunity Commission
1801 L Street, N.W.
Washington, D.C. 20507
Attorney for the Amicus - Appellant
Edward S. Mazurek (ARGUED)
Kevin A. Ormerod
1701 Market Street
Philadelphia, Pennsylvania 19103
Attorneys for Appellee
OPINION OF THE COURT
RENDELL, Circuit Judge.
Alvin “Rob” Emory brought suit against his longtime
employer, AstraZeneca Pharmaceuticals LP (“AstraZeneca”),
alleging disability discrimination in the form of failure to
promote and failure to provide reasonable accommodations in
violation of the Americans with Disabilities Act (“ADA”), 42
U.S.C. § 12101 et seq. Moving for summary judgment,
AstraZeneca urged that Emory’s substantive claims of

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3
discrimination need not be addressed because Emory, as a
threshold matter, was not “disabled” under the ADA. The
District Court agreed and granted AstraZeneca’s motion on that
basis. We disagree. Because a proper analysis of Emory’s
claims shows that he has established, at the very least, a genuine
issue of fact as to his impairments’ substantially limiting effect
on his ability to perform manual tasks and learn, we will reverse
and remand the District Court’s grant of summary judgment in
favor of AstraZeneca.
I. BACKGROUND
A. Facts
Emory, who was born with cerebral palsy, has worked as
a custodian at AstraZeneca (and its predecessor companies) for
more than 27 years. He is the only employee at the Newark,
Delaware plant, his assigned facility, who commenced working
as a custodian and still holds that position more than 25 years
later. During the course of his employment, Emory has applied
for several permanent higher-paying jobs with AstraZeneca, but
claims that, without accommodation, he “has not been qualified
for any of them because of his physical and mental
impairments.” Appellant’s Brief at 12.
Among the physical impairments Emory endures as a
result of his cerebral palsy are permanent partial paralysis on his
right side, and a right hand, arm and leg he describes as
“deformed.” Dr. Stephen Rodgers, M.D., a Board Certified
Independent Medical Examiner and Occupational and Pain
Management Specialist, recently evaluated Emory and found

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that “the percentages of permanent impairment are right upper
extremity - 50% [and] right lower extremity - 25%.” Rodgers
Rep. of Mar. 9, 2003 at A865.
As a child, Emory was treated at the Crippled Children
Program of the Alfred I. duPont Institute of the Nemours
Foundation, where he received physical, occupational, and
speech therapy. The records reflect that Emory used hand
splints, as well as corrective shoes and braces throughout much
of his childhood. As a schoolboy, his evaluating physician
concluded that Emory “has difficulty with bilateral dressing
skills such as lacing. On activities requiring unilateral skills, he
is slow but can work independently. He is able to remove his
clothing with a minimum of assistance but he is unable to put
them on independently.” Functional Eval. at A1028.
Though cerebral palsy left Emory with some use of his
right side, he cannot lift anything heavy, or open and close his
right thumb, which interferes with activities that involve the use
of both hands as well those requiring right-handed gripping or
dexterity. As a result, Emory cannot tie his shoes or a tie, roll
his sleeves, close buttons, or put on a belt. In addition, among
other tasks, he is unable to cut his fingernails or toenails, screw
the top on a toothpaste tube, cut his own meat, open a jar, pull
heavy dishes and pans in or out of the oven, change diapers,
carry his children up the stairs, hold a pen or pencil in his right
hand, or perform certain basic household chores and repairs.
To deal with the effects of these limitations, Emory
continued to receive treatment at Nemours into adulthood,
where he often discussed his employment and the obstacles

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In some instances Emory undertook to train for a new1
position, but never actually had the opportunity to assume the
job. For example, with respect to the Material Inspector job
(1988), Emory’s personnel records recount a meeting between
Emory and Human Resources Director Jay Hampel during
which Emory discussed freely certain difficulties he was facing
training for his new position. According to Mr. Hampel,
“Because of this, Rob and I concluded that it would be best to
discontinue training.” Personnel File Aug. 15, 1988 at A1110.
5
faced there. For example, as memorialized by a therapist, he
recounted his attempt at promotion in late 1983:
Rob stated that he understood his limitations in his trunk,
hip, and forearm rotation were responsible for the
difficulties he was experiencing at his last attempt at job
promotion. He knew he could not do the work, but had
refused to give up during the trial period (he spent five
days training for a new position but was denied the job).
He said he fatigued considerably during each two hours
of continuous lifting and rotating, resulting in decreased
coordination, slowness, carelessness, forgetfulness,
tripping, and fine motor incoordination.
duPont 12/1/83 Eval. at A1034. The therapist concluded that
“[i]t was clear that his difficulty was with shoulder, forearm and
wrist rotations as well as trunk and hip rotations which were
impairing his ability to perform the task at the speed required.”
Id. at A1035. In all, Emory bid unsuccessfully for
approximately ten internal promotions over a 12-year period.1

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In many instances, his unaccommodated physical inabilities and
limitations rendered him incapable of performing the jobs he
sought.
In addition to these physical inabilities, Emory also
experiences mental limitations stemming from his cerebral
palsy. As a result, he was placed in Special Education classes
from an early age. He ultimately obtained a diploma from this
track; though, as a tenth grade student, Emory’s word
recognition and math skills were at a second grade level. In
1972, also while a tenth grader, Emory registered a Full Scale
I.Q. score of 72; in 1994, he registered a score of 86; and most
recently, in 2003, Emory scored a Full Scale I.Q. of 77, placing
him in the borderline range of intellectual performance and in
the 6th percentile of the general population. On a 2003
Hopkins Verbal Learning Test, Emory showed a deficient
learning curve. Additional tests administered in 2003 revealed
that in reading, arithmetic and spelling, Emory tested at or
below 99 out of 100 adults in his age group. Id. at 878.
As have his physical impairments, Emory claims that
such mental limitations have hindered his advancement at
AstraZeneca. Rather than reading test questions for himself, he
needs to have the questions read aloud for him. Even verbal
instructions often leave Emory confused. His quest to attain a
Mechanic position at AstraZeneca is illustrative. In 1985,
Emory first sought a Mechanic position but was unable to pass
the required Bennett Mechanical Comprehensive test. He failed

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not only that year, but time and again – in 1986, 1987, 1998,
and 1999. Mechanic Test Scores at A1149. In 1995, a doctor
on Emory’s behalf requested that he receive tutoring for the
exam, that the exam be taken orally and extra time allotted.
AstraZeneca complied with only the second request to take the
exam out loud. But even with oral recitation of the questions,
Emory again failed.
Emory cannot learn new skills from a training manual,
rather, he must learn via a “hands-on” or combination visual
and verbal approach, but still at a pace substantially slower than
his colleagues. As observed of Emory by an occupational
therapist at the Nemours Foundation:
Visual figure ground is moderately to severely impaired;
praxis (motor planning), math computations, size and
number estimations (e.g., he cannot determine if 25
bottles of a certain size fit into a specific box even after
repeated trials), reading skills, visual memory, and
auditory processing also seem below expectations, Rob
frequently does not hear what is being said to him;
several times he began speaking before the therapist
finished talking and then did not respond to questions
asked.
duPont 8/23/83 Eval. at A1043. Therefore, even a combined
verbal and “hands-on” approach does not guarantee Emory a
successful learning experience.
Notwithstanding the frequent professional frustrations
wrought by his limitations, Emory has, since adolescence,

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consistently endeavored to challenge himself and to participate
in various civic and community activities. Though he could
not lift a gurney, climb a ladder to rescue someone, operate a
fire hose without assistance, or “mask-up” on his own, Emory
became a volunteer firefighter as a teenager. He explained that
the fire company “didn’t want to see a person that was willing
to try fail. And they let me do what I was capable of doing.
Then I would ask for extra help as I needed.” Emory Dep. at
A163-A164. Emory also joined the Shriners but, physically
limited in his ability to march in sync with other members,
instead developed a character incorporating his own
impairments known as “Stumbles the Clown” who performs
with the Shriners’ Circus.
As an adult, Emory has volunteered to join a team
responsible for mediating local disputes at the Center for Justice
in Wilmington, Delaware; he described the disputes as
concerning “family, friends . . . [and] neighbors.” Id. at A193.
And, most recently, Emory, who was hired to perform part-time
cleaning work for the Newark Temple, formed “Rob’s Cleaning
Service.” He and his partner share cleaning duties and, besides
the temple, have one other contract.
Despite undertaking various other commitments, Emory
remained undeterred in his pursuit to advance at AstraZeneca.
After numerous failed attempts at advancement, in 1999, he
assumed a temporary role as acting Second Shift Supervisor
following the promotion of another employee. That assignment
lasted almost two years – Emory claims that, during that two
year period, he was frequently criticized for math errors,
spelling and grammar mistakes, and the length of time it took

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him to complete administrative tasks. When he asked his
supervisors if he could use a calculator to add and subtract
overtime and work hours (and offered to buy it himself), he was
refused on the ground that it would embarrass him “because
everyone should know basic subtraction and adding.” Emory
Dep. at A232. One of these same supervisors routinely referred
to Emory as “Rainman” in reference to the autistic character in
the movie by the same name.
Yet still, in an effort to improve his performance in the
Second Shift Supervisor position, Emory approached HR
Director Hampel and asked for an assessment at Sylvan
Learning Center. He was refused. He later asked for and
received from AstraZeneca a block of time for Easter Seals
computer training. His instructor at Easter Seals, Phyllis
Gourdin, issued a report to AstraZeneca with recommendations
that voice-activated software be installed on Emory’s computer
and that additional instruction on grammar, spelling and writing
be afforded. No action was taken on these recommendations.
Following a reorganization of the Maintenance Department in
2001, Emory, who believed he was the “heir-apparent” to the
job after having performed it for close to two years, was passed
over for the permanent Second Shift Supervisor position.
Emory filed a joint Charge of Discrimination with the
Delaware Department of Labor (“DDOL”) and the Equal
Employment Opportunity Commission (“EEOC”), alleging
violations of the ADA and Delaware Handicapped Persons Act,
19 Del.C. § 720 et seq. The DDOL investigated the charge and
found that Emory was a qualified individual with a disability
under both federal and state law. Emory later filed a complaint

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As we discuss infra at footnote 6, Emory also claimed he2
could establish “disability” through his “record of impairment.”
42 U.S.C. § 12102(2)(B).
10
in the District Court alleging discrimination in the form of
failure to promote and failure to provide reasonable
accommodations; he claimed that he was disabled under the
meaning of the ADA because his impairment(s) have
substantially limited him in the major life activities of walking,
learning, and performing manual tasks.2
B. District Court Proceedings
In the District Court, AstraZeneca sought summary
judgment against Emory. Though AstraZeneca had not
contested Emory’s status as a qualified individual with a
disability before the DDOL, AstraZeneca took the position
before the District Court that Emory’s limitations were not
substantially limiting so as to render him “disabled” under the
ADA. AstraZeneca denied that Emory’s evidence of
impairment even presented a question for the jury.
The District Court determined, as a matter of law, that
Emory was not “disabled” for purposes of the ADA and granted
AstraZeneca summary judgment on this basis. Specifically, the
Court found that the manifestations of Emory’s cerebral palsy
did not limit him in the major life activities of performing

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The District Court also held that Emory was not substantially3
limited in the major life activity of walking, a conclusion which
we will not disturb on appeal. See Kelly v. Drexel University,
94 F.3d 102, 108 (3d Cir. 1996) (finding that plaintiff who
fractured his hip, leaving him with a noticeable limp and who
was diagnosed with severe post-traumatic degenerative joint
disease of the right hip, was not substantially limited in life
activity of walking).
11
manual tasks or learning. With respect to the performance of3
manual tasks, the District Court stated, “Although Mr. Emory
has some limitations in his ability to grip, carry and manipulate
objects and needs assistance in accomplishing some household
chores, childcare duties, and activities involving his right side,
his limitations are not substantial or severe.” Dist. Ct. Op. at
A9. The court found significant evidence regarding Emory’s
civic endeavors – his ability to “perform as a clown, counsel
families as a mediator, and assist his community as a
firefighter.” Id. It noted that “while he may perform some of
his daily activities in an unconventional manner as a result of
his impairments, he is not substantially limited in his ability to
perform those activities.” Id.
As to learning, the District Court noted that Emory does
indeed have “learning impairments,” id. at A10, and is “limited
in his literacy and computational skills,” id., but determined that
those impairments could not be considered substantially
limiting, again, primarily because of the challenges Emory was
courageous enough to undertake and, in some instances,
overcome. “The record indicates that Mr. Emory graduated

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from high school and updated his computer skills through
occupational training. Mr. Emory passed the certification
requirements to become both a family mediator and a fireman,
and he has consistently earned positive performance evaluations
during his 26 years of employment with AstraZeneca.” Dist. Ct.
Op. at A10.
II. ANALYSIS
A. Standard of Review
The District Court had jurisdiction pursuant to 28 U.S.C.
§ 1343, and we have jurisdiction under 28 U.S.C. § 1291. Our
review of a district court’s grant of summary judgment is
plenary, and we apply the same standard that the District Court
should have applied. See Abramson v. William Paterson Coll.
of N.J., 260 F.3d 265, 276 (3d Cir. 2001). Summary judgment
is appropriate when there are no genuine issues of material fact
and, viewing the evidence in the light most favorable to the
non-moving party, the moving party is entitled to judgment as a
matter of law. See Fed. R. Civ. P. 56(c); Celotex Corp. v.
Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986);
Abramson, 260 F.3d at 276.
B. Applicable Law
The ADA prohibits discrimination against qualified
individuals who suffer a “disability.” The statute defines
“disability,” in part, as “a physical or mental impairment that
substantially limits one or more of the major life activities of
such individual.” 42 U.S.C. § 12102(2)(A). The parties here

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agree that cerebral palsy is an impairment. And, Emory has
identified those major life activities in which he claims to be
substantially limited, which include the performance of manual
tasks and learning. AstraZeneca, however, denies that Emory’s
limitations are substantial.
Though “[s]ubstantially in the phrase substantially limits
suggests considerable or to a large degree,” Toyota Motor Mfg.,
Ky., Inc. v. Williams, 534 U.S. 184, 197 (2002), the Supreme
Court has made clear that “[t]he Act addresses substantial
limitations on major life activities, not utter inabilities,”
Bragdon v. Abbott, 524 U.S. 624, 641, 141 L. Ed. 2d 540, 118
S. Ct. 2196 (1998) (emphasis added). See also Fiscus v. Wal-
Mart Stores, Inc., 385 F.3d 378 (3d Cir. 2004) (“We also read
the Supreme Court to hold that a substantial limitation of a
major life activity does not mean impossibility or even great
physical difficulty; rather, substantial limitation is weighed in
a broad, practical sense.”). When evaluating substantial
limitation, courts must consider a plaintiff’s ability to
compensate for his disability through mitigating measures,
Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555, 565-67, 119 S.
Ct. 2162, 144 L. Ed. 2d 518 (1999), but the essence of the
inquiry regards comparing the conditions, manner, or duration
under which the average person in the general population can
perform the major life activity at issue with those under which
an impaired plaintiff must perform, Taylor v. Phoenixville Sch.
Dist., 184 F.3d 296, 307 (3d Cir. 1999).

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We have, in the past, noted that “[b]ecause the ADA does not4
define many of the pertinent terms, we are guided by the
Regulations issued by the Equal Employment Opportunity
Commission to implement Title I of the Act.” Deane v. Pocono
Med. Ctr., 142 F.3d 138, 143 n.4 (3d Cir. 1998) (en banc) (citing
42 U.S.C. § 12116 (requiring the EEOC to implement said
Regulations)).
14
The EEOC’s interpretive guidelines echo, and expound4
upon, these precepts:
(1) The term substantially limits means:
(i) Unable to perform a major life activity that the
average person in the general population can perform; or
(ii) Significantly restricted as to the condition, manner or
duration under which an individual can perform a
particular major life activity as compared to the
condition, manner, or duration under which the average
person in the general population can perform that same
major life activity.
29 C.F.R. § 1630.2(j)(1). The EEOC guidelines further counsel
that the following factors should be considered in determining
whether an individual is substantially limited:
(i) The nature and severity of the impairment;
(ii) The duration or expected duration of the impairment;

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While the EEOC concludes by focusing on Emory’s right to5
a jury determination, its brief is replete with categorical
assertions that Emory is substantially limited in his ability to
engage in various major life activities, thus rendering him
“disabled” as a matter of law. The amicus brief contains myriad
statements of fact and law demonstrating that the ADA’s
definition of “disability” must include Emory, who suffers
obvious and severe restrictions, if it is to protect anyone at all.
15
and
(iii) The permanent or long term impact, or the expected
permanent or long term impact of or resulting from the
impairment.
29 C.F.R. § 1630.2(j)(2).
It bears noting that the EEOC has filed a 31-page amicus
curiae brief in this case imploring us to recognize that
conscientious application of the law demands reversal of the
District Court’s conclusion that Emory has not adduced
sufficient evidence to raise a genuine issue of fact regarding his
status as “disabled” under the ADA. We agree with the5
EEOC’s contention that to affirm this conclusion in the face of
ample evidence concerning the substantial impact Emory’s
impairments have on his ability to perform routine functions of
daily life would deprive victims of the ability to challenge
discriminatory acts, and thereby undermine the ADA’s purpose.
The statute was passed because Congress found “the continuing
existence of unfair and unnecessary discrimination and prejudice

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denies people with disabilities the opportunity to compete on an
equal basis and to pursue those opportunities for which our free
society is justifiably famous,” 42 U.S.C. § 12101(a)(9), not in
order to provide piecemeal protection to only those with the
most tragic or obvious impairments.
C. Discussion
1. Performing Manual Tasks
The District Court’s focus on what Emory has managed
to achieve misses the mark. While evidence of tasks he has
mastered might seem to serve as a natural counterpoint when
evaluating disability, the paramount inquiry remains – does
Emory “have an impairment that prevents or severely restricts
[him] from doing activities that are of central importance to
most people’s daily lives”? Toyota, 534 U.S. at 197. If so,
then he is substantially limited in the performance of manual
tasks and has established disability under the ADA.
The record is replete with references to the severe
restrictions imposed by Emory’s impairments. Emory has been,
since childhood, either unable to perform, or only able to
perform with significant difficulty, a range of manual tasks
central to daily life. Physically, Emory suffers from weakness
and partial paralysis in his right arm. He lacks grip, strength
and dexterity in his right hand which, as detailed by physicians
and therapists, has seriously affected his ability to perform
without accommodation manual tasks required for promotion at

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AstraZeneca. As he cannot perform activities that require him
to grasp and hold with two hands, he is also unable to perform
a number of more personal manual tasks involving dressing,
eating and maintaining personal hygiene. These limitations
have interfered with Emory’s ability to care for his children and
prevent him from performing many ordinary household tasks
central to the lives of most people.
So, while the District Court stressed that Emory could
“operate a cleaning business, perform as a clown, counsel
families as a mediator, and assist his community as a
firefighter,” it ignored evidence that Emory cannot tie his shoes
or necktie, open a jar, cut his nails, perform various household
chores and repairs, remove heavy dishes from the oven, change
a diaper, carry his children up the stairs, or cut his own meat
with a knife and fork. These latter activities, which are but a
few examples demonstrative of how very manually impaired
Emory is, are “of central importance to people’s daily lives,”
and Emory is either completely without ability or severely
restricted in his ability to perform them.
The crux of the inquiry lies in comparing the way in
which Emory is able to perform activities, if at all, with the way
in which an average member of the general population performs
the same activities. An average person, for example, thinks
nothing of getting dressed, whether or not the task includes
buttons, zippers, laces or sleeves. For Emory, the act of
dressing presents huge hurdles, some of which he can overcome
through accommodations or the help of another person, and
many of which he cannot. “That [a plaintiff], through sheer
force of will, learned accommodations, and careful planning, is

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able to perform a wide variety of activities despite his physical
impairments does not mean that those activities are not
substantially more difficult for him than they would be for an
unimpaired individual.” Ordahl v. Forward Tech. Indus., Inc.,
301 F. Supp. 2d 1022, 1028-29 (D. Minn. 2004). What a
plaintiff confronts, not overcomes, is the measure of substantial
limitation under the ADA.
Here too, AstraZeneca has offered evidence of Emory’s
force of will, perseverance, and some learned accommodations;
however, the fact that Emory has been able to become a
productive member of society by having a family, working, and
serving his community does not negate the significant disability-
related obstacles he has overcome to achieve, nor does it
undermine his inability, or significantly restricted ability, to
learn and perform numerous manual tasks of central importance
to daily life.
Moreover, while it is the standard announced in Toyota
and interpreted by the EEOC that drives our analysis of a
plaintiff’s claims under the ADA, the statute also requires that
alleged disabilities be evaluated “with respect to an individual,”
42 U.S.C. § 12102(2). We are mindful of the extraordinarily
fact-intensive nature of the inquiry; even if two different
plaintiffs alleging substantial limitations suffer from the same
impairment, the nuances of its effect on their daily lives will
invariably manifest themselves in distinct ways. Case law in
this area is therefore useful primarily in setting helpful
benchmarks by which a court can gauge the severity of a
plaintiff’s impairments. But where we have seen physical
handicaps of the same nature as those suffered by Emory, courts

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have more often than not denied summary judgment. See Gillen
v. Fallon Ambulance Svc., 283 F.3d 11, 22 (1st Cir. 2002)
(reversing the district court’s determination as a matter of law
that the plaintiff EMT-applicant with one functioning arm, who
demonstrated courage and perseverance, was not substantially
limited in lifting); Luttrell v. Certified Grocers Midwest, Inc.,
Civil Action No. 02-8881, 2003 U.S. Dist. LEXIS 21520, at *7
(N.D. Ill. Dec. 1, 2003) (holding a genuine issue of material fact
exists as to whether plaintiff with “mild” cerebral palsy
resulting in deformed left hand is disabled under the ADA);
Ordahl, 301 F. Supp. 2d at 1028-29 (holding plaintiff, whose
use of a prosthetic hand affected his ability to bathe, dress, eat,
grasp, and perform actions requiring manual dexterity, had
successfully made out prima facie case under the ADA).
A rational factfinder could reasonably conclude that,
when compared to an average individual in the general
population, Emory is substantially limited in his ability to
perform manual tasks. Therefore, Emory has established a
genuine issue of fact as to his entitlement to protection under
the ADA.
2. Learning
The District Court concluded that Emory’s “learning
impairments” should not be considered substantially limiting
because “the record indicates that Mr. Emory graduated from
high school and updated his computer skills through
occupational training, [passing] the certification requirements
to become both a family mediator and a fireman, and . . .
consistently earn[ing] positive performance evaluations during

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his 26 years of employment with AstraZeneca.” Dist. Ct. Op.
at A10. However, again, “The key question is not whether a
handicapped person accomplishes [his] goals, but whether [he]
encounters significant handicap-related obstacles in doing so.”
Gillen, 283 F.3d at 22. Further, when compared to others, his
learning impairments are clearly severe.
Emory presented evidence in the record that he
completed high school, but on a special education track; during
his sophomore year of high school he was reading at a second-
grade level. He has had his I.Q. tested three times, with the
highest score registering in the mid-eighties (the two other
scored registered in the seventies), falling into the borderline
range of intellectual functioning. Emory’s limitations interfere
with his ability to read and process information, as well as basic
math skills or the filling out of paperwork. Emory can complete
exams only if given orally, and even then, requires additional
time – this seems to be a result of both his own difficulty with
reading and his inability to express himself in writing.
Experience has proven that Emory is incapable of learning as do
other employees, through manuals or brief instruction or
training. Diagnostic tests administered over a span of years
establish that Emory’s math, reading and cognitive skills are far
below those possessed by average persons in the general
population – test results reveal poor calculation and
computational abilities, literacy skills which place him in the
bottom of the first percentile according to one test, and a
deficient learning curve.
These manifestations of Emory’s mental impairment are
significant. The “nature and severity,” 29 C.F.R. §

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1630.2(j)(2)(i), of Emory’s learning impairments are such that
he cannot intake or process basic information the way average
individuals do, often unconsciously. And, the “expected
duration” of these impairments is no less than “permanent.” 29
C.F.R. § 1630.2(j)(2)(ii) & (iii). The fact that he is able,
through an often laborious combination of non-traditional
methodologies, to learn certain skills does not obscure the
substantial limitations imposed by his impairments on his ability
to learn. Indeed, it only highlights the fact that Emory is
“[s]ignificantly restricted as to the condition, manner or
duration under which [he] can perform a particular major life
activity as compared to the condition, manner or duration under
which the average person in the general population can perform
that same major life activity.” 29 C.F.R. § 1630.2(j)(1)(ii).
Again, the Supreme Court has stressed that “[w]hen significant
limitations result from the impairment, the definition is met even
if the difficulties are not insurmountable.” Bragdon, 524 U.S.
at 641. Mentally, Emory is unable to engage in the most basic
and essential methods of learning – reading written materials
and following oral instruction. At the very least Emory has
adduced evidence sufficient to create a genuine issue of fact as
to whether he is substantially limited, as compared to an average
member of the population, in the major life activity of learning.
See Farrington v. Bath Iron Works Corp., Civil Action No. 01-
274, 2003 U.S. Dist. LEXIS 1938, at *38 (D. Me. Feb. 7, 2003)
(holding employer not entitled to summary judgment because
evidence that employee tested in the 5th to 10th percentile for
reading skills, displayed a preference for simple, repetitive jobs,
and had great difficulty learning certain tasks, was sufficient to
raise question of fact as to his substantially limited ability to
learn).

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Because we conclude that Emory, based on his presentation6
of evidence that he is substantially limited in performing manual
tasks and learning, is entitled to have a jury apply the relevant
law and determine his “disability” status under the ADA, we
need not address Emory’s contention that he can establish
“disability” through a “record of impairment.” 42 U.S.C. §
12102(2)(B).
22
III. CONCLUSION
When evaluating claims brought under the ADA, “the
focus is not on whether the individual has the courage to
participate in the major life activity despite [his] impairment,
but, rather, on whether [he] faces significant obstacles when
[he] does so.” Gillen, 283 F.3d at 22. Without question, Rob
Emory has proffered ample evidence as to the barriers erected
by his impairments. Under both the EEOC guidelines and the
Supreme Court’s articulation of “substantial limitation” in
Toyota, Emory has created a genuine issue of fact as to whether
he is disabled in the major life activities of performing manual
tasks and learning.6
The order of the District Court will be reversed and
remanded for further proceedings consistent with this opinion.

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