Cathy A. Fiscus v. WAL-MART STORES, INC. d/b/a SAM'S WHOLESALE CLUB 6678 On Appeal from the United…

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PRECEDENTIAL
UNITED STATES COURT OF
APPEALS
FOR THE THIRD CIRCUIT
No. 03-2513
CATHY A. FISCUS,
APPELLANT
v.
WAL-MART STORES, INC.
d/b/a SAM'S WHOLESALE CLUB
#6678
On Appeal from the United States
District Court
for the Western District of Pennsylvania
(Dist. Ct. No. 01-cv-00836)
District Judge: Honorable Gary L.
Lancaster
Argued January 23, 2004
Before: ALITO and CHERTOFF,
Circuit Judges, and
DEBEVOISE,* Senior District Judge.
(Filed: October 5, 2004)
SAMUEL J. CORDES (Argued)
Ogg, Cordes, Murphy & Ignelzi
245 Fort Pitt Boulevard
Pittsburgh, PA 15222
Counsel for Appellant
BRADLEY A. SCHUTJER (Argued)
2157 Market Street
Camp Hill, PA 17011
Counsel for Appellee
ERIC S. DREIBAND
General Counsel
CAROLYN L. WHEELER
Acting Associate General Counsel
LORRAINE C. DAVIS
Assistant General Counsel
DANIEL T. VAIL (Argued)
1801 L Street, N.W.
Washington, DC 20507
Counsel for Amicus Appellant
Equal Employment Opportunity
Commission
OPINION OF THE COURT
CHERTOFF, Circuit Judge.
Appellant Cathy A. Fiscus, who
was an employee at appellee Wal-Mart,
suffered from end-stage renal disease from
* Honorable Dickinson R.
Debevoise, Senior United States District
Judge for the District of New Jersey,
sitting by designation.

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1998 until she received a kidney transplant
in September 1999. End-stage renal
disease means near-total kidney failure.
From 1998 until September 1999,
therefore, Fiscus was required to undergo
time-consuming and uncomfortable
dialysis treatments to cleanse and
eliminate waste from her blood.
Fiscus sought a reasonable
accommodation from her employer during
the period of her dialysis. Wal-Mart
declined. As a consequence, she was
placed on leave, which expired before the
recuperation period from her kidney
transplant.
Fiscus sued under the Americans
with Disabilities Act. Wal-Mart asserted
that her kidney failure was not a covered
disability, arguing that the inability to
cleanse one’s own blood and eliminate
body waste does not amount to the
limitation of a major life activity under the
statute. The District Court agreed with
Wal-Mart. We do not. Because we
conclude that a physical impairment that
limits an individual’s ability to cleanse and
eliminate body waste does impair a major
life activity, we will reverse the judgment
of the District Court in favor of Wal-Mart.
I.
From October 1986 through March
2000, Cathy A. Fiscus served as an
employee of Wal-Mart Stores, Inc.,
working at the company’s Sam’s
Warehouse Club Store in Pittsburgh,
Pennsylvania. During her twelve-year
tenure at the store, Fiscus was assigned to
a number of different departments,
including paper goods, housewares, hard
lines, grocery, and bakery. Fiscus was
responsible for lifting and stocking goods
in the aisles. In the fall of 1997, Fiscus
was placed in the bakery department and
was eventually assigned to the night-shift
bakery-wrapper position.
In November of 1995, Fiscus was
diagnosed with renal (kidney) failure.
Over the next few years, her condition
deteriorated, and in July 1998, she was
diagnosed as having end-stage renal
disease, the condition of total or near-total
permanent kidney failure. Fiscus had
dialysis treatment from July 1998 through
September 1999. For the first half of her
treatment, from July 1998 through
December 1998, Fiscus underwent
hemodialysis, a process by which the
blood is cleansed mechanically. Fiscus
spent four to six hours, three times a week,
hooked to a machine to have her blood
cleansed. Throughout the course of her
hemodialysis treatment, she continued to
work in her overnight position at Sam’s
Warehouse Club.
Because of complications
associated with hemodialysis, Fiscus
changed her treatment to peritoneal
dialysis in mid-December 1998. This
regimen required Fiscus to administer the
forty-five minute dialysis process to
herself every four to six hours each day.
At the start of her treatment, Fiscus was
allowed to perform the dialysis at her
work premises.

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Around the time she started
peritoneal dialysis, Fiscus suffered a fall at
work and was absent from work for a
short period of time. In January 1999,
Fiscus returned to work and was removed
from her position as a baker/wrapper after
she indicated in a company form that she
was not able to perform functions without
reasonable accommodation.1 When the
store manager proposed that Fiscus take a
day shift position, such as a “Greeter,”
Fiscus requested that she be able to
perform dialysis on Wal-Mart’s premises.
This request for accommodation was
denied, and Fiscus was informed that there
were no available positions for her.
Instead, the store manager advised her to
take disability leave, which she did.
In September of 1999, Fiscus
underwent a kidney transplant and was
unable to work for five and a half months,
until March 30, 2000. On March 15,
2000, Wal-Mart fired Fiscus because she
had been unable to return to work within
a year.2
Fiscus filed a charge with the Equal
Employment Opportunity Commission
( “ E E O C ” ) a l l e g i n g d i s a b i l i t y
discrimination and later filed suit in
District Court. Fiscus alleged in her
complaint that she suffered from renal
disease and that “renal disease is a
disability within the ADA as it is [a]
physical impairment that substantially
limits major life activities.” App. at 10.
Fiscus also claimed that Wal-Mart
removed her from her baker/wrapper
position because of disability, failed to
accommodate her disability, and
terminated her because of her disability.
App. at 11.
Wal-Mart filed a motion for
summary judgment, arguing that Fiscus
was not “significantly limited in a major
life activity.” Fiscus countered by
asserting that she was substantially limited
in the major life activity of “processing
body waste and cleaning her blood” and
that “complete failure of [her] kidneys
substantially limits her ability to perform
the major life activities of eliminating
body waste; of cleaning her blood; and of
caring for herself.”
I n h i s R e p o r t a n d
Recommendation, the Magistrate Judge
recommended that Wal-Mart’s motion for
summary judgment be granted. She
concluded that “[t]he activities of
processing bodily waste and cleansing
blood do not comport with the definition
of ‘major life activity’ under the ADA”
and that these activities were “kidney
function[s],” which were not a major life
activity under the ADA. The Magistrate
Judge also concluded that Fiscus had not
identified other “major life activities” that
1 Fiscus claims that the manager
removed her as a baker/wrapper after she
had informed him that she would need
assistance with tasks that involved heavier
lifting.
2 Wal-Mart had a policy of
allowing employees to take only up to one
year of medical leave.

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were substantially limited by her renal
disease.
The District Court adopted the
Magistrate Judge’s Report and
Recommendation in its entirety and
granted summary judgment for Wal-Mart.
We exercise plenary review over a grant
of summary judgment. Northview
Motors, Inc. v. Chrysler Motors Corp.,
227 F.3d 78, 87-88 (3d Cir. 2000).
II.
The ADA mandates that covered
businesses provide “reasonable
accommodations to the known physical or
mental limitations of an otherwise
qualified individual with a disability . . . .”
42 U.S.C. § 12112(b)(5)(A). A qualified
individual with a disability under the
statute is someone with a disability who
“ w i t h o r w i t h ou t r e a s o n a b le
accommodation” can perform the essential
functions of a particular job. 42 U.S.C. §
12111(8). Disability, in turn, is defined as
“a physical or mental impairment that
substantially limits one or more of the
major life activities of the individual.”
U.S.C. § 12102(2). Thus, to establish a
statutorily protected disability, the
employee must show that she has an
impairment; identify the life activity that
she claims is limited by the impairment;
and prove that the limitation is substantial.
Bragdon v. Abbott, 524 U.S. 624, 631
(1998).
In this case, there is no dispute that
end-stage renal disease, with which Fiscus
was afflicted during 1998 and 1999 (until
her transplant), is a physical impairment.
The kidneys are vital organs that clean the
blood and help eliminate bodily waste.
Kidney failure is incurable; it requires
either regular dialysis—mechanical blood
cleansing—or a transplant. But Wal-Mart
argues, and the District Court agreed, that
cleansing the blood and processing bodily
waste do not constitute a “major life
activity” within the meaning of the ADA.
The District Court stated that Fiscus’s
allegation that she could not cleanse her
blood and process waste without
mechanical assistance was simply another
way of stating that she was “substantially
limited in the major life activity of kidney
function.” Magistrate Op. 10. The Court
reasoned that impairment of an organ does
not in itself constitute a limitation on a life
activity. So, the District Court concluded,
to succeed, Fiscus would have to show
that the inability to cleanse blood limited
her in doing something else that would be
described as a life activity.
The District Court erred in its point
of departure. Fiscus does not allege that
her disease limited her in the life activity
of “kidney function.” She contends that
she was limited in the major life activities
of cleansing her blood and processing
waste. Appellant Br. at 15. By re-
characterizing Fiscus’s claim as an
allegation “that she is substantially limited
in the major life activity of kidney
function,” the District Court simply
assumed away her argument. Fiscus’s
position is clear: Absence of kidney
function was the impairment; the

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consequence was the impact on the
activity of blood cleansing and body waste
processing. Thus, it was incorrect for the
District Court to conflate the two, and to
interpret Fiscus’s contention as nothing
more than claiming a limitation on the life
activity of kidney functions.
That leads to the question—are
cleansing and eliminating waste from the
blood a major life activity? To be sure,
these are normally internal body functions
which are not volitional—i.e., which occur
automatically. But that does not mean that
they may not be considered a major life
activity. Even internalized and
autonomous body activities may qualify as
major life activities within the meaning of
the ADA.
The ADA itself does not
comprehensively define the meaning of
“major life activity,” but it does
specifically direct that the statute be
construed so that it meets the standards set
forth in the Rehabilitation Act of 1973, 29
U.S.C. § 790 et seq., and the regulations
issued thereunder. 42 U.S.C. § 12201(a).
Regulations under the Rehabilitation Act
furnish a representative—but not
exhaustive—list of functions that should
be deemed major life activities. These
include, “caring for one’s self, performing
manual tasks, walking, seeing, hearing,
speaking, breathing, learning, and
working.” 45 C.F.R. § 84.3(j)(2)(ii); 28
C.F.R. § 41.31(b)(2)(1997).
These major life activities are
conceptually distinct from the physical
impairments that gives rise to them. But
they also do not necessarily involve
externally visible or volitional behavior.
Breathing, for example, is largely
involuntary. Thinking—which this Court
has held constitutes a major life activity,
Gagliardo v. Connaught Lab., Inc., 311
F.3d 565, 569 (3d Cir. 2002); Taylor v.
Phoenixville Sch. Dist., 184 F.3d 296, 307
(3d Cir. 1999)—is largely internal and
invisible, although the effects of thought
(or its absence) are externally manifested.
Indeed, “thinking” well illustrates that the
distinction between the physical
impairment and the affected life activity is
often fine, indeed. For example, a
chemical imbalance in the brain can affect
thinking. One may view that impairment
as characteristic of brain damage but also
as a limitation on mental ability and
thought. How one characterizes the
difference depends on whether one looks
to the chemistry of the brain or to the
thinking activity of the mind.
Furthermore, in Bragdon v. Abbott,
the Supreme Court expressly rejected the
claim that a major life activity is limited to
“those aspects of a person’s life which
have a public, economic, or daily
character.” 524 U.S. at 638. Relying on
the “breadth of the term” major life
activity, id., the Court held that HIV
infection (as a physical impairment)
substantially limited the major life activity
of “reproduction,” not because it
physically prevented pregnancy, but
because the infection deterred the plaintiff
from seeking to become pregnant.

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The decision in Bragdon teaches
several useful lessons in construing the
ADA. First, it undercuts any dispositive
conceptual difference for ADA purposes
between internal, largely autonomous
physical activities on the one hand, and
external, largely volitional physical
activities on the other. In Bragdon, the
Court found that reproduction satisfied the
statutory definition of major life activity
because “[r]eproduction and the sexual
dynamics surrounding it are central to the
life process itself.” 524 U.S. at 638. Yet
reproduction in itself, as the dissent
pointed out, is not an external process.
524 U.S. at 658-59 & n.2. That is to say,
after the (normally) volitional act of
conception, reproduction for the woman
largely takes place autonomously and
internally until birth. And while
pregnancy can be debilitating for some
women, many others can pursue their daily
routines with little limitation or handicap.
An impairment of the ability or
willingness to reproduce, moreover, would
not necessarily impinge on the woman’s
ability to engage in nonreproductive
(protected) sexual relations or the raising
of an adopted child. Despite these facts,
the Bragdon majority treated reproduction
by itself as a major life activity, without
the need to demonstrate any impact that
pregnancy might have on some other
volitional or external activity, such as
working, walking, etc., and without regard
to the plaintiff’s continued ability to
engage in at least some sexual behavior
and raise children. Compare 524 U.S. at
660-61 (Rehnquist, C.J., dissenting).
Second, the Court in Bragdon
required no showing that reproduction or
the decision to reproduce was a recurrent
or daily feature of life for someone in
plaintiff’s position. The dissent correctly
observed that unlike the regulatory
examples of major life activities such as
breathing, walking and seeing,
reproduction is not (usually) “repetitively
performed and essential in the day-to-day
existence of a normally functioning
individual.” 524 U.S. at 660. But the
majority opinion rejected any such test.
The Court found it sufficient that
reproduction—although generally not
routine—was comparable in importance to
life activities such as working and
learning. The touchstone is not publicity
or frequency, but importance to the life of
the individual.
Third, the Bragdon Court found
that insofar as the risk of perinatal
transmission of HIV deterred the plaintiff
from voluntarily seeking to become
pregnant, HIV constituted a substantial
limitation on plaintiff’s life activity of
reproduction. Importantly, the HIV
infection did not make it physically
impossible for the plaintiff to conceive,
gestate, and give birth. And, the Court
also assumed that the risk of transmission
during pregnancy was considerably less
than fifty-fifty, perhaps as low as eight
percent. Nevertheless, the Court
concluded that an HIV-positive woman’s
decision to avoid even that risk meant that
HIV imposed a substantial limitation on
reproduction. The Court thus held that a
limitation need not rise to the level of

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“utter inabilit[y].” 524 U.S. at 641. It
need not even be based entirely on
physical constraints; in Bragdon, the Court
based its finding of substantial limitation
in part on the legal and economic
consequences that forseeably ensue if an
HIV-infected mother becomes pregnant.
What matters is a broad practical
assessment of whether an individual’s
ability to pursue the major life activity is
limited by the physical impairment or
condition from which he or she suffers.
We distill from Bragdon, therefore,
the following: A major life activity need
not constitute volitional or public
behavior; it need not be an activity that is
performed regularly or frequently; but it
does have to have importance to human
life comparable to that of activities listed
in the regulatory examples. 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, and may include
non-physical factors.
With these teachings in mind, we
disagree with the District Court’s
conclusion that impaired elimination of
waste and blood cleansing are nothing
more than characteristics of kidney failure.
Rather, they are the effect of kidney failure
in the same way that impaired thinking is
the effect of organic brain disease. And
the fact that the effect of kidney failure is
felt on an internal autonomous organic
activity is, under Bragdon, not
incompatible with a finding of substantial
limitation of a major life activity.
Under Bragdon, the touchstone of
a major life activity is its importance or
significance. An activity which is “central
to the life process,” 524 U.S. at 638,
expressly meets that test. By that standard,
processing and eliminating waste from the
blood qualifies as a major life activity
because, in their absence, death results. In
this respect, waste elimination is
comparable to other life-sustaining
activities such as breathing, eating, or
drinking, all of which have been held to be
major life activities within the statute.
See, e.g., 29 C.F.R. § 1630.2(i); Lawson
v. CSX Transp., Inc., 245 F.3d 916, 923
(7th Cir. 2001) (eating); Amir v. St. Louis
Univ., 184 F.3d 1017, 1027 (8th Cir.
1999) (eating, drinking, and learning).
Our own court has held under Title II of
the ADA that “digestion” is a major life
activity. Doe v. County of Ctr., 242 F.3d
437, 447 (3d Cir. 2001). And the Sixth
Circuit has expressly held that waste
elimination—i.e., controlling one’s
bowels—can be a major life activity.
Workman v. Frito-Lay, Inc., 165 F.3d 460,
467 (6th Cir. 1999); see also Gilbert v.
Frank, 949 F.2d 637, 641 (2d Cir. 1991)
(assuming that kidney failure that limits
removal of waste without dialysis
substantially limits ability to care for one’s
self).
In reaching its conclusion that
blood cleansing and waste elimination are
not a major life activity, the District Court
relied on two other decisions. One was
Furnish v. SVI Systems, Inc., 270 F.3d

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445 (7th Cir. 2001), in which the court
held that cirrhosis of the liver did not
constitute a substantial limitation on a
major life activity. Furnish was
adjudicated, however, on the express
theory that the major life activity was
nothing more or less than “liver function.”
The plaintiff did not assert that the
impaired liver function actually affected
waste removal or blood cleansing. Indeed,
there was every indication that the
plaintiff’s liver functioned within the
normal range. Id. at 450. Furnish might
serve as a useful precedent if Fiscus were
merely alleging damaged kidneys, but as
we have seen, her claim goes further to
cover an inability to process and eliminate
waste in the blood.
The District Court also relied on
Fraser v. United States Bancorp, 168 F.
Supp. 2d 1188, 1194 (D. Or. 2001). That
case declined to find that the effect of
diabetes on food metabolization is,
without more, a substantial limitation on a
major life activity. That decision was
substantially—if not entirely—undercut by
its subsequent reversal on appeal. The
Ninth Circuit disagreed with the District
Court, and held that a diabetic plaintiff
could claim a substantial limitation on the
life activity of eating. Fraser v. Goodale,
342 F.3d 1032, 1039-40 (9th Cir. 2003).
The eventual disposition of Fraser is
consistent with our decision here.
We hold, therefore, that the District
Court erred in deciding that elimination of
waste from the blood is not a major life
activity under the ADA.
III.
Fiscus also challenges the ruling of
the District Court rejecting her claim that
her renal disease substantially limited her
ability to care for herself. The District
Court did not contest that under the
Rehabilitation Act regulations, caring for
one’s self is explicitly recognized as a
major life activity. Instead, the District
Court held that Fiscus had not adequately
alleged in a pleading—i.e., her
complaint—that caring for herself was a
life activity that was substantially limited
by her kidney disease. Magistrate Op. at
12.
We believe that the District Court
read the complaint too narrowly in holding
that Fiscus was not entitled to prove a
substantial limitation on her ability to care
for herself.
Fiscus’s complaint alleges that she
suffered from end-stage renal disease and
that it substantially limits major life
activities. App. at 10. This was sufficient
to meet the notice pleading requirement
with respect to Fiscus’s disability under
our decision in Menkowitz v. Pottstown
Memorial Medical Center, 154 F.3d 113
(3d Cir. 1998). Accordingly, Fiscus was
entitled to establish that her end-stage
renal disease substantially limited her
ability to care for herself. We of course
express no opinion on whether she will
succeed in doing so.
Finally, Wal-Mart argues as an
alternative ground for dismissal that even
if cleansing blood was a major life

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activity, Fiscus’s dialysis treatments fully
mitigated the impact of her kidney disease,
so that there was no longer a substantial
limitation in performing that activity.
Wal-Mart is correct that a court
must assess the limitation on a major life
activity in light of any corrective measures
plaintiff uses to mitigate her impairment.
Sutton v. United Airlines, Inc., 527 U.S.
471, 488 (1999); Taylor, 184 F.3d at 302.
So, for example, in Sutton the Supreme
Court held that a visually impaired
plaintiff’s limitations must be considered
in light of his use of corrective eyeglasses.
527 U.S. at 488. By the same token,
however, any evaluation of the mitigating
effects of corrective measures must also
consider side-effects or other collateral
limitations caused by those corrective
measures. Sutton, 527 U.S. at 484;
Taylor, 184 F.3d at 308-09. In Fiscus’s
case, therefore, the limitations caused by
her kidney failure must be weighed in
light of her ability to conduct peritoneal
dialysis but with due regard for any side-
effects or residual effects.
Here, the record certainly supports
the view that both hemodialysis and
peritoneal dialysis were time-consuming
and cumbersome processes, requiring
specialized equipment and limiting
Fiscus’s mobility and other aspects of
daily living. Because the District Court
did not address these matters, however, we
decline to do so in the first instance on
appeal. On remand, the District Court
should consider whether dialysis
eliminated any substantial limitation on
the major life activities of cleansing blood
and caring for one’s self, bearing in mind
collateral and side-effects.

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