Adams v. Rice

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 11, 2008 Decided July 18, 2008

No. 07-5101

KATHY E. ADAMS,

APPELLANT

v.

CONDOLEEZZA RICE, SECRETARY OF STATE,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 05cv00941)

Ellen K. Renaud argued the cause for appellant. With her

on the briefs was David H. Shapiro. Richard L. Swick entered

an appearance.

Daniel B. Kohrman and Melvin Radowitz were on the

brief for amici curiae American Association of Retired

Persons and American Cancer Society in support of appellant.

John C. Truong, Assistant U.S. Attorney, argued the

cause for appellee. With him on the brief were Jeffrey A.

Taylor, U.S. Attorney, and R. Craig Lawrence, Assistant U.S.

Attorney.

2

Before: HENDERSON, TATEL, and KAVANAUGH, Circuit

Judges.

Opinion for the Court filed by Circuit Judge TATEL.

Dissenting opinion filed by Circuit Judge HENDERSON.

TATEL, Circuit Judge: Appellant Kathy Adams, a

candidate for the United States Foreign Service, passed the

required entrance examinations and received a medical

clearance, only to learn thereafter that she had been diagnosed

with stage-one breast cancer. Upon hearing the news, the

State Department, expressing concern that many of its

overseas posts lack the follow-up care it believed Adams

required, revoked her medical clearance, disqualifying her

from the Foreign Service. Adams sued under the

Rehabilitation Act of 1973, which prohibits federal agencies

from discriminating in employment against disabled

individuals—including those with a “record of” a disability,

29 U.S.C. § 705(20)(B)(ii). In her complaint, she alleged that

her surgical treatment rendered her cancer-free and able to

work anywhere in the world without requiring specialized

follow-up care. Without allowing discovery, the district court

granted summary judgment to the State Department,

concluding among other things that Adams had no record of a

disability as defined in the statute. For the reasons set forth in

this opinion, we reverse.

I.

Viewed in the light most favorable to Adams, the

evidence tells the following story. See Czekalski v. Peters,

475 F.3d 360, 363 (D.C. Cir. 2007) (explaining standard of

review on summary judgment).

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The Foreign Service, an arm of the State Department,

requires its officers to be “available to serve in assignments

throughout the world,” 22 U.S.C. § 3901(a)(4), and frequently

assigns junior Foreign Service officers to overseas locations

that—due to factors such as “unreliable air service, poor or

non-existent medical facilities, and unreliable postal or other

delivery systems”—are considered “hardship posts.” John M.

O’Keefe Decl. ¶ 3; see generally Taylor v. Rice, 451 F.3d

898, 900-01 (D.C. Cir. 2006) (explaining Foreign Service

hiring requirements and assignment procedures). Candidates

who pass the Foreign Service’s rigorous written and oral

examinations receive conditional offers of employment,

requiring, among other things, that they “receive a medical

examination and be issued a medical clearance.” 3 U.S. DEP’T

OF STATE, FOREIGN AFFAIRS MANUAL (“FAM”) § 1931.1(b)

(2002); see also 22 C.F.R § 11.1 (establishing Foreign

Service testing and application procedures). The State

Department’s Office of Medical Services (“MED”) performs

the required medical examinations and issues “Class 1”

clearances to examinees “who have no identifiable medical

conditions that would limit assignment abroad.” 3 FAM §

1931.3-1(1). The State Department refers to Class 1-

approved candidates as “worldwide available.” Taylor, 451

F.3d at 901. Those failing to obtain such clearances

automatically receive “Class 5” clearances, 3 FAM §

1931.1(b), meaning they “have a medical condition which is

incapacitating or for which necessary specialized medical

care is best obtained in the United States,” id. § 1931.3-1(3).

Because individuals with Class 5 clearances are deemed

unable to serve safely outside the United States, they are

declined appointments to the Foreign Service unless they

request and receive an administrative waiver of the medical

standards for employment. Such waivers result in a “Class 2”

clearance, meaning the applicant “can be treated adequately at

some but not all posts outside the United States.” Bruce L.

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Cole Decl. ¶ 7; see also 3 FAM § 1931.3-1(2). Rarely

granted, waivers are issued on the basis of factors such as the

extent of worldwide availability and extraordinary skills

possessed by the applicant.

Appellant Kathy Adams applied to the Foreign Service

and by April 2003 had passed both the written and oral

examinations. In July, after undergoing the required medical

screening, Adams learned that she had received a Class 1

unlimited medical clearance for worldwide assignment. In

mid-August, however, Adams was diagnosed with stage-one

breast cancer.

After discussing treatment options with her physicians,

Adams elected to undergo a mastectomy and simultaneous

reconstructive surgery, reasoning that it “would provide the

best option for me to be able to resume my normal life

activities.” Adams Decl. ¶ 10. The surgery took place in

mid-September. According to Adams, after the procedure she

“could not work at all” for three weeks, “was unable to

perform household chores for several weeks,” and “was

unable to care for [her]self properly and . . . drive for about

two weeks.” Id. ¶ 12. Two months later, as part of her breast

cancer treatment, Adams had her ovaries and fallopian tubes

removed, a procedure necessitating an additional week of

recovery.

As Adams grappled with her medical diagnosis and

treatment, the State Department continued processing her

application. In late September it sent Adams her final

security clearance indicating that she was “eligible for

appointment to the Foreign Service” and had “been added to

the Consular register of those awaiting appointment.” Letter

from Patricia Evans, Human Resources Specialist, Bd. of

Exam’rs for the Foreign Serv. to Kathy Adams (Sept. 25,

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2003). After receiving this letter on October 2, Adams

learned from State Department human resources official

Patricia Evans that she was ranked seventh out of 200

consular candidates due to her high score on the Foreign

Service Examination. Evans told Adams that “barring some

unforeseeable catastrophe,” she would receive an

appointment to the Foreign Service beginning in January

2004. Adams Decl. ¶ 15; Patricia Evans Decl. at 2.

The next day, Adams told the State Department about her

breast cancer diagnosis. Upon learning this information,

MED nurse Rebecca Forsman asked Adams for a “typed

summary report from your primary treating physician” that

included pathology reports, blood-work results, a summary of

care, and a “[t]reatment plan detailing the type and frequency

of follow-up care/monitoring needed.” Email from Rebecca

Forsman to Kathy Adams (Oct. 10, 2003). Forsman warned

Adams “that there is a significant possibility that we will not

be able to re-issue a Class One (worldwide available) medical

clearance in the near future,” but assured her that “once all of

the MD documentation has been received, the providers here

will review this carefully.” Id. In a telephone conversation,

Adams recalls, “Ms. Forsman remarked that it would be in

my best interest to remain in the United States . . . after an

occurrence of breast cancer, rather than to join the Foreign

Service and live outside the U.S.” Adams Decl. ¶ 24.

Responding to the State Department’s request for

information, Adams had her primary physician, Doctor Mark

A. O’Rourke, send a letter to the State Department explaining

that she had been successfully treated for early stage breast

cancer and was “in completed remission with an excellent

prognosis.” Letter from Dr. Mark A. O’Rourke 1 (Nov. 19,

2003). According to Dr. O’Rourke, Adams was “cancer-

free,” had “no job limitations whatsoever,” could “undertake

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a full schedule of work, travel, and vigorous sports,” and was

“entirely able to work overseas for long periods of time.” Id.

at 1-2. As for follow-up care, Adams needed one pill per day

of Tamoxifen (an anti-estrogen drug), an annual mammogram

(recommended for all women Adams’s age), and—crucially

for this case—a “clinical breast exam at 6-month intervals for

the next 5 years.” Id. at 1. Adams, he concluded, “is a

remarkable individual with excellent health, high energy,

determination, and enthusiasm. I can say with complete

confidence that this history of breast cancer will not slow her

down one bit at all.” Id. at 2.

After reviewing the submitted materials, MED informed

Adams in mid-December that she was no longer “worldwide

available” and issued her a Class 5 clearance. Explaining this

decision, MED Director Laurence Brown later stated that

Adams “disclosed to MED . . . that she had been diagnosed

with Stage 1 breast cancer and had undergone an operation in

August 2003,” and that “[o]n that basis, MED determined that

she was not eligible for service worldwide.” Brown Decl. ¶

14. Specifically, MED based its decision on its conclusion

that “the Department could not guarantee . . . [Adams] access

to the required medical follow-up and surveillance for her

condition . . . at all overseas assignments” since only 53% of

all Foreign Service posts had “surgeons and/or oncologists”

available to perform a semi-annual breast exam. Id. ¶ 18.

Echoing this rationale, MED nurse Forsman explained that

“[t]he problem was that [Adams] needed to be seen every six

months for follow-up care (preferably by a specialist).”

Forsman Decl. at 3.

Attempting to salvage her candidacy, Adams sought an

administrative waiver from MED. In support, Dr. O’Rourke

sent another letter emphatically endorsing Adams’s ability to

work “anywhere in the world for prolonged periods of time.”

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Letter from Dr. Mark A. O’Rourke to Dep’t of State Bd. of

Exam’rs for the Foreign Serv. ¶ 7 (Jan. 12, 2004). The letter

also clarified that “any competent physician [could] perform

[Adams]’s examinations; an oncologist or other specialist is

not required,” and that a nurse practitioner “would be

competent to perform” the bi-annual breast exams “if a

physician were not conveniently available.” Id. ¶¶ 9, 14; see

also O’Rourke Supp. Decl. ¶ 5. Another oncologist, Doctor

Kimberly Blackwell of Duke University Breast Cancer

Center, concurred with Dr. O’Rourke’s assessment of

Adams’s follow-up care needs.

MED denied the waiver request. Despite Dr. O’Rourke’s

assurance that Adams required no medical specialists to

provide any of her follow-up care, the MED doctor who

denied the waiver confirmed that in MED’s view only “53%

of all Foreign Service posts have the professional and

technological support required in this case.” Memorandum

from Emil Von Arx III, Medical Advisor to Employee

Review Comm. (Mar. 23, 2004). Left holding a Class 5

medical clearance, Adams was denied entry into the Foreign

Service.

Adams filed an Equal Employment Opportunity (EEO)

complaint in July 2004 claiming discrimination on the basis

of a physical disability, namely her history of “Stage 1 breast

cancer.” Formal Compl. of Discrimination (July 22, 2004).

According to her complaint, Adams had “resumed all

physical activities,” and “require[d] only one extra check-up

per year for four more years and tamoxifen,” a drug that

thanks to its long shelf life could be “readily store[d] at post.”

Id. The EEOC initiated an investigation, but after Adams

filed suit in the U.S. District Court for the District of

Columbia in May 2005, the Commission dismissed Adams’s

administrative complaint and terminated the EEO process.

8

See 29 C.F.R. § 1614.107(a)(3) (instructing EEOC to dismiss

complaint when complainant has filed a civil action in federal

district court more than 180 days after filing administrative

complaint).

In her amended complaint, Adams alleges that the

Department discriminated against her because of a disability,

i.e., breast cancer. The State Department responded with a

motion to dismiss, or in the alternative, for summary

judgment. Noting that “[n]o discovery has taken place, but

both parties have submitted declarations and other forms of

documentary evidence to support their positions,” the district

court treated the Department’s motion as one for summary

judgment and granted it. Adams v. Rice, 484 F. Supp. 2d 15,

19 (D.D.C. 2007). Although the district court found the State

Department’s “refusal to accept the recommendations of

[Adams]’s physicians or otherwise accommodate her minor

medical needs . . . both callous and unreasonable,” it

nonetheless concluded that Adams had failed to show she had

a disability as defined in the Act. Id. at 23-24.

Adams now appeals, and the American Cancer Society

and AARP filed an amicus brief on her behalf. We review

the district court’s ruling de novo, drawing all reasonable

inferences from the evidence in Adams’s favor and without

making credibility determinations or weighing the evidence.

See Czekalski, 475 F.3d at 362-63.

II.

Rehabilitation Act section 501 prohibits federal agencies

from engaging in employment discrimination against disabled

individuals. 29 U.S.C. § 791(b); see also Taylor, 451 F.3d at

905 & n.11 (explaining that section 501(b) provides a private

cause of action for claims alleging employment

discrimination); 22 U.S.C. § 3905(e)(4) (expressly applying

9

section 501’s prohibition on “discrimination on the basis of

handicapping condition” to the Foreign Service). This

deceptively simple injunction against disability discrimination

implicates an interlocking web of statutory definitions. First,

although the Act includes no definition of “discrimination,” it

instructs courts to use the same standards employed in cases

arising under the Americans with Disabilities Act (ADA). 29

U.S.C. § 791(g); see also Breen v. Dep’t of Transp., 282 F.3d

839, 841 (D.C. Cir. 2002) (applying ADA employment

discrimination standards to Rehabilitation Act claim).

Adams’s claim therefore incorporates ADA section 102,

which provides that “[n]o covered entity shall discriminate

against a qualified individual with a disability because of the

disability of such individual in regard to job application

procedures, the hiring, advancement, or discharge of

employees, employee compensation, job training, and other

terms, conditions, and privileges of employment.” 42 U.S.C.

§ 12112(a). The ADA also includes within the definition of

“discriminate” the failure to “mak[e] reasonable

accommodations to the known physical or mental limitations

of an otherwise qualified individual with a disability who is

an applicant or employee, unless [the employer] can

demonstrate that the accommodation would impose an undue

hardship.” Id. § 12112(b)(5)(A); see also 29 C.F.R. §

1630.9(a).

Here, Adams alleges that the State Department denied

her employment because of her status as a cancer survivor.

She seeks no accommodation of any sort—indeed, her entire

case rests on the proposition that she is “fit as a fiddle,”

Adams Decl. ¶ 47, and perfectly able to serve anywhere in the

world no matter the conditions without requiring the services

of medical specialists for follow-up care. See Pl.’s Mem. in

Opp’n to Def.’s 2d Mot. to Dismiss or for Summ. J. 33 (“Ms.

10

Adams needs no accommodation to perform the duties of a

foreign service officer.”).

“Disability” is another term of art under the statute that

carries a specific meaning. An individual is disabled under

the Rehabilitation Act only if she can show that she (1) “has a

physical or mental impairment which substantially limits one

or more . . . major life activities,” (2) “has a record of such an

impairment,” or (3) “is regarded as having such an

impairment.” 29 U.S.C. § 705(20)(B). In other words, as the

Supreme Court explained when interpreting nearly identical

language in the ADA, “to fall within this definition one must

have an actual disability . . . , have a record of a disability

. . . , or be regarded as having one.” Sutton v. United Air

Lines, Inc., 527 U.S. 471, 478 (1999). Adams argues that she

meets all three definitions, and we will examine each in turn.

Before doing so, we observe that all three disability

definitions include a reference—central to this case—to a

substantial limitation on a major life activity. To qualify as

disabled, Adams must therefore do more than show that she

has, had, or was regarded as having an impairment of some

sort. Rather, she must show that her alleged impairment is,

was, or was believed to be one that “substantially limits one

or more . . . major life activities.” 29 U.S.C. § 705(20)(B). In

other words, the impairment must be one whose “severity is

such” that it qualifies under the statutory definition. H.R.

REP. NO. 101-485, pt. 2, at 52 (1990) (internal quotation

marks omitted) (explaining definition of the term “disability”

for purposes of the ADA); see also Toyota Motor Mfg. v.

Williams, 534 U.S. 184, 195 (2002) (“Merely having an

impairment does not make one disabled for purposes of the

[Act]. Claimants also need to demonstrate that the

impairment limits a major life activity.”). The Act nowhere

defines the phrase “major life activity,” but the Supreme

11

Court has explained that “the word ‘major’ denotes

comparative importance and suggests that the touchstone for

determining an activity’s inclusion under the statutory rubric

is its significance.” Bragdon v. Abbott, 524 U.S. 624, 638

(1998) (alteration and internal quotation marks omitted); see

also Toyota, 534 U.S. at 197 (“‘Major’ in the phrase ‘major

life activities’ means important.”). Accordingly, while “such

basic abilities as walking, seeing, and hearing” easily qualify,

Toyota, 534 U.S. at 197; see also Desmond v. Mukasey, No.

07-5139, Slip op. at 15-19 (D.C. Cir. 2008) (recognizing

sleeping as a major life activity), activities that lack “central

importance to most people’s daily lives” will not satisfy the

statute, Toyota, 534 U.S. at 198; see also Singh v. George

Washington Univ. Sch. of Med., 508 F.3d 1097, 1104 (D.C.

Cir. 2007) (holding that test-taking is not a major life activity

under the ADA). For reasons explained in greater detail

below, see infra Part III, when the employee alleges pure

discrimination on the basis of a disability the claimed

limitation need have nothing to do with the employee’s ability

to work. By contrast, when an employee seeks a workplace

accommodation, the “accommodation must be related to the

limitation that rendered the person disabled.” Nuzum v.

Ozark Auto. Distribs., Inc., 432 F.3d 839, 848 (8th Cir. 2005).

The reason is this: as the ADA’s legislative history makes

clear, the substantial limitation and major life activity

requirements act as statutory filters distinguishing those

suffering from relatively serious impairments from those with

“minor, trivial impairment[s].” H.R. REP. NO. 101-485, pt. 2,

at 52 (explaining that under the ADA a person with “a simple

infected finger is not impaired in a major life activity”).

Accordingly, if Adams can show that her impairment

substantially limited an activity qualifying as a “major life

activity” under the Act—work-related or not—then she

qualifies as disabled under the statute.

12

With this framework in mind, we turn to the sole issue

before us: whether Adams qualifies as disabled under one or

more of the Act’s three disability definitions. Because we can

easily dispose of Adams’s arguments under two of those

definitions, we address them first.

Actual Disability

Adams’s first claim—that the State Department

discriminated against her on the basis of “a physical or mental

impairment which substantially limits one or more . . . major

life activities,” 29 U.S.C. § 705(20)(B)(i)—fails for an

obvious reason: Adams’s breast cancer—her only claimed

impairment—was gone by the time the State Department

made its allegedly discriminatory employment decisions. As

the government points out, Adams’s illness had been fully

treated by November 2003, at which point her doctors

pronounced her “cancer-free” and “in completed remission.”

Letter from Dr. Mark A. O’Rourke 1 (Nov. 19, 2003). She

thus had no physical impairment either in December 2003

(when the State Department revoked her Class 1 medical

clearance) or in March 2004 (when MED denied her waiver

request). Dr. O’Rourke made the same point, explaining that

Adams “does not have an active illness or condition” but must

remain vigilant given her “history of breast cancer” in order

to “detect a return of her cancer.” O’Rourke Decl. ¶¶ 12-13

(emphases added). Accordingly, the State Department could

not have discriminated against Adams “solely by reason of

her . . . disability,” 29 U.S.C. § 794(a), given that her

“impairment” had already been eradicated. At oral argument,

Adams’s counsel suggested that the risk of cancer recurrence

could itself constitute a physical impairment, but because

Adams never made that allegation in the district court, see

Adams, 484 F. Supp. 2d at 20 n.2, we will not consider it

here. See Flynn v. Comm’r, 269 F.3d 1064, 1068-69 (D.C.

Cir. 2001) (noting that, absent exceptional circumstances,

13

arguments not made to the district court are forfeited). And

given that Adams had no impairment at the time the allegedly

discriminatory actions took place, we need not decide

whether she was substantially limited in a major life activity

for purposes of the actual disability definition.

“Regarded as” Having a Disability

An individual is “regarded as” disabled if her employer

“mistakenly believes that [the] person has a physical

impairment that substantially limits one or more major life

activities” or “mistakenly believes that an actual, nonlimiting

impairment substantially limits one or more major life

activities.” Sutton, 527 U.S. at 489. Although many circuits

have recognized working as a major life activity, see, e.g.,

Bartlett v. N.Y. State Bd. of Law Exam’rs, 226 F.3d 69, 80 (2d

Cir. 2000); EEOC v. R. J. Gallagher Co., 181 F.3d 645, 654

(5th Cir. 1999), both the Supreme Court and this court have

scrupulously avoided deciding whether working constitutes a

major life activity for purposes of the Act. See Sutton, 527

U.S. at 492; Gasser v. District of Columbia, 442 F.3d 758,

763 n.7 (D.C. Cir. 2006) (noting “the difficulties the issue

presents” (internal quotation marks omitted)). Instead, for

purposes of analysis, we have assumed without deciding that

working qualifies. See Duncan v. WMATA, 240 F.3d 1110,

1114 n.1 (D.C. Cir. 2001) (en banc).

Doing the same here, we reject Adams’s claim. “[T]o be

regarded as substantially limited in the major life activity of

working, one must be regarded as precluded from more than a

particular job.” Murphy v. United Parcel Serv., Inc., 527 U.S.

516, 523 (1999). Adams must therefore present enough

evidence to persuade a reasonable jury that the State

Department viewed her as “precluded from more than one

type of job, a specialized job, or a particular job of choice.”

Sutton, 527 U.S. at 492. She failed to carry this burden.

14

Nothing in the record reveals that the State Department

believed Adams was unable to hold any position other than

that of Foreign Service officer—and even then, the

Department thought her unable to serve only at certain

“hardship posts” overseas. Adams argues that by denying her

a Class 1 medical clearance the State Department revealed

that it regarded her as unable to hold a host of other

government jobs requiring similar clearances, but such an

interpretation would mean that every Foreign Service

candidate denied a Class 1 medical clearance would be

disabled under the Rehabilitation Act. See Thompson v. Rice,

422 F. Supp. 2d 158, 175-76 (D.D.C. 2006). We decline to

adopt such a broad reading of the statute.

“Record of” a Disability

Seeking to “make clearer that the [Act’s] coverage . . .

extends to persons who have recovered—in whole or in

part—from a handicapping condition, such as a mental or

neurological illness, a heart attack, or cancer,” S. REP. NO. 93-

1297, at 38-39 (1974), Congress amended the Rehabilitation

Act in 1974 to cover not only those individuals with

impairments that substantially limit a major life activity, but

also those having “a record of such an impairment,” Pub. L.

No. 93-516, § 111, 88 Stat. 1617, 1619 (now codified at 29

U.S.C. § 705(20)(B)(ii)) (emphasis added). The “record of”

definition was tailor-made for plaintiffs who, like Adams,

claim they once suffered from a physical or mental

impairment that substantially limited a major life activity,

recovered from the impairment, but nonetheless faced

employment discrimination because of it. See 29 C.F.R. pt.

1630, app. § 1630.2(k) (explaining that the “record of”

definition “protects former cancer patients from

discrimination based on their prior medical history”).

15

Our dissenting colleague seems to adopt a narrow

reading of the term “record,” suggesting that it refers only to

tangible documentation of the plaintiff’s impairment. See

Dissenting Op. 6-7. But Department of Health and Human

Services (HHS) regulations interpreting the Rehabilitation

Act—which the Supreme Court has called a “particular[ly]

significan[t]” source of guidance, Toyota, 534 U.S. at 195;

Bragdon, 524 U.S. at 632—define the phrase “has a record of

such an impairment” more broadly, namely “has a history of,

or has been misclassified as having, a mental or physical

impairment that substantially limits one or more major life

activities,” 45 C.F.R. § 84.3(j)(2)(iii) (emphasis added).

Thus, although “record of” disability claims will often

involve tangible documents of some kind, such as medical

reports or employment forms detailing a previous medical

condition, plaintiffs may satisfy the “record of” definition

simply by showing that they “ha[ve] a history of” a qualifying

impairment. Id. And just as a plaintiff may not qualify as

disabled or regarded as disabled based on an illness alone—

even a serious illness like cancer—evidence of a prior illness,

without more, is insufficient to show a record of disability.

Because the Act protects individuals having a “record of such

an impairment,” Adams must show that her alleged

impairment “substantially limit[ed] one or more . . . major life

activities.” 29 U.S.C. § 705(20)(B) (emphasis added); see

Gallagher, 181 F.3d at 655 (“[I]t is not enough for [a] . . .

plaintiff to simply show that he has a record of a cancer

diagnosis; in order to establish the existence of a “disability” .

. . there must be a record of an impairment that substantially

limits one or more of the . . . plaintiff’s major life activities.”).

Our inquiry under the “record of” definition therefore

follows a three-step process. First, we ask if Adams has a

history of a mental or physical impairment. If so, we ask

whether the impairment limited an activity qualifying as a

16

major life activity under the Act. Finally, if both the

impairment and activity pass muster under the statute, we ask

whether the alleged limitation was substantial. We consider

each of these issues in turn.

Here it is undisputed both that Adams has a history of

breast cancer and that breast cancer qualifies as a “physical

impairment” under the Act. Indeed, commentary

accompanying the HHS regulations expressly names “cancer”

as part of a “representative list of disorders and conditions

constituting physical impairments.” Bragdon, 524 U.S. at

633 (quoting 42 Fed. Reg. 22,676, 22,685 (1977)); see also

45 C.F.R § 84.3(j)(2)(i) (defining “impairment” as “any

physiological disorder or condition, cosmetic disfigurement,

or anatomical loss affecting one or more of the following

body systems: neurological; musculoskeletal; special sense

organs; respiratory, including speech organs; cardiovascular;

reproductive, digestive, genito-urinary; hemic and lymphatic;

skin; and endocrine”). And because the government nowhere

argues that breast cancer fails to qualify as an “impairment”

under the Act, we will not belabor the point.

Having found that Adams has a history of an impairment,

we next determine whether that impairment has limited any of

her major life activities. Adams argues that it has in two

ways. First, she contends that after her various surgeries—

which required brief hospital stays—she “was unable to care

for herself and unable to work.” Appellant’s Opening Br. 39.

Under Toyota, however, “the impairment’s impact must . . .

be permanent or long term.” 534 U.S. at 198; see also

Haynes v. Williams, 392 F.3d 478, 483 & n.4 (D.C. Cir.

2004). Here, the evidence shows that Adams’s difficulty

caring for herself, working, performing household chores, and

driving lasted for only several weeks following her surgeries.

Assuming any or all of these activities qualify as major life

17

activities under the Act, we agree with the district court that

because Adams’s “recovery times . . . consisted only of

several weeks,” they were “hardly enough to qualify as . . .

permanent or long-term.” Adams, 484 F. Supp. 2d at 22; see

also Sutton v. Lader, 185 F.3d 1203, 1209 (11th Cir. 1999)

(“A temporary inability to work while recuperating from

surgery is not . . . a permanent or long-term impairment and

does not constitute evidence of a disability covered by the

Act.”).

Adams’s second argument is that her cancer substantially

limited her in the major life activity of engaging in sexual

relations. Adams alleges that although she remains cancer-

free, has an “excellent prognosis,” no longer requires ongoing

cancer treatment, and “has no particular limits on her work

activities,” she remains “limited in the major life activity of

sexual contact and romantic intimacy.” Am. Compl. ¶ 12.

According to Adams, her cancer treatment left a “residual

effect . . . that may never resolve”—one that is “psychological

in nature.” Adams Decl. ¶ 48. She explains:

Like many breast cancer survivors, whether by

virtue of my discomfort with the way my body

looks, loss of sensation after my surgeries, my

deep-seated fear that prospective suitors will

reject me because of my history of cancer, loss

of a breast, and current physical appearance, or

the side effects of medication that causes loss

of libido, I now find that the prospect of dating

and developing an intimate relationship is just

too painful and frightening. While I have

overcome the physical disease, my ability to

enter into romantic relationships has been

crippled indefinitely and perhaps permanently.

18

Id. ¶ 49.

This circuit has yet to decide whether sexual relations

constitutes a major life activity for purposes of the Act.

Arguing that it does, Adams relies on the Supreme Court’s

holding in Bragdon v. Abbott that human reproduction

qualifies as a major life activity, see 524 U.S. at 638, and the

government’s brief presents no argument to the contrary.

Based on the statute’s text, the Supreme Court’s reasoning in

Bragdon, and a hefty dose of common sense, we hold that

engaging in sexual relations qualifies as a major life activity

under the Act.

Beginning with the statute, we can easily conclude

without resorting to the dictionary that engaging in sexual

relations clearly amounts to an “activity” in any sense of that

word. As for the word “major,” the Supreme Court has

explained that “the touchstone for determining an activity’s

inclusion under the statutory rubric is its significance.” Id.

(internal quotation marks omitted). At the risk of stating the

obvious, sex is unquestionably a significant human activity,

one our species has been engaging in at least since the biblical

injunction to “be fruitful and multiply.” Genesis 1:28. As a

basic physiological act practiced regularly by a vast portion of

the population, a cornerstone of family and marital life, a

conduit to emotional and spiritual fulfillment, and a crucial

element in intimate relationships, sex easily qualifies as a

“major” life activity.

Bragdon supports this self-evident conclusion. There the

Supreme Court held that asymptomatic HIV constitutes a

disability under the ADA because it is a physical impairment

that substantially limits the major life activity of reproduction.

524 U.S. at 637-41. Our holding follows directly from

Bragdon. In concluding that reproduction meets the statutory

19

definition, the Bragdon Court explained that “[r]eproduction

and the sexual dynamics surrounding it are central to the life

process itself.” Id. at 638 (emphasis added). Furthermore,

Bragdon explains that one of the ways in which HIV limits

reproduction is by creating a risk that an infected individual

will transmit the disease to another while engaging in sexual

contact. See id. at 639. Finally, the Court placed special

emphasis on an opinion issued by the Justice Department’s

Office of Legal Counsel (OLC) stating that “‘[t]he life

activity of engaging in sexual relations is threatened and

probably substantially limited by the contagiousness of the

virus.’” Id. at 643 (quoting Application of Section 504 of the

Rehabilitation Act to HIV-Infected Individuals, 12 Op. Off.

Legal Counsel 264, 274 (1988)). It bears mentioning that

when Congress passed the ADA—a statute directly patterned

on the Rehabilitation Act—it considered this same OLC

opinion, explaining that HIV-infected individuals qualify as

disabled “because of a substantial limitation to procreation

and intimate sexual relationships.” H.R. REP. NO. 101-485,

pt. 2, at 52 (emphasis added); see also S. REP. NO. 101-116, at

22 (1989) (citing OLC opinion).

Based on this reasoning, many courts, including district

courts in this circuit, have read Bragdon to imply that

engaging in sexual relations qualifies as a major life activity.

See, e.g., McAlindin v. County of San Diego, 192 F.3d 1226,

1234 (9th Cir. 1999); Norden v. Samper, 503 F. Supp. 2d 130,

151 (D.D.C. 2007); Sussle v. Sirina Prot. Sys. Corp., 269 F.

Supp. 2d 285, 298-99 (S.D.N.Y. 2003); Powell v. City of

Pittsfield, 221 F. Supp. 2d 119, 146 (D. Mass. 2002). And in

his separate Bragdon opinion, Chief Justice Rehnquist took a

similarly pragmatic view of the Court’s holding:

Calling reproduction a major life activity is

somewhat inartful. Reproduction is not an

20

activity at all, but a process. One could be

described as breathing, walking, or performing

manual tasks, but a human being (as opposed

to a copier machine or a gremlin) would never

be described as reproducing. I assume that in

using the term reproduction . . . the Court [is]

referring to the numerous discrete activities

that comprise the reproductive process . . . .

524 U.S. at 659 n.2 (Rehnquist, C.J., concurring in the

judgment in part and dissenting in part). Thus, whether

Bragdon explicitly recognizes sexual relations as a major life

activity or merely strongly suggests as much, we have little

difficultly concluding that sexual relations is a major life

activity under the Act.

Having decided that engaging in sexual relations

qualifies as a major life activity, we next determine whether

Adams has sufficiently alleged a substantial limitation on that

activity. This is an individualized inquiry that focuses on

Adams’s own experience. See Toyota, 534 U.S. at 198

(requiring plaintiffs “to prove a disability by offering

evidence that the extent of the limitation . . . in terms of their

own experience . . . is substantial” (internal quotation marks

omitted) (second omission in original)). Moreover, “if a

person is taking measures to correct for, or mitigate, a

physical or mental impairment, the effects of those

measures—both positive and negative—must be taken into

account when judging whether that person is ‘substantially

limited’ in a major life activity and thus ‘disabled’ under the

Act.” Sutton, 527 U.S. at 482 (emphasis added).

Accordingly, in determining whether Adams’s breast cancer

substantially limited her in a major life activity, “[w]e must

consider the actual effects of [her] impairment and the side

effects of [her] treatment.” Gallagher, 181 F.3d at 654.

21

Finally, in determining the substantiality of a claimed

limitation, we may consider: (1) “[t]he nature and severity of

the impairment;” (2) “[t]he duration or expected duration of

the impairment;” and (3) “[t]he 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)

(EEOC regulations interpreting the ADA); cf. Toyota, 534

U.S. at 194 (assuming without deciding that EEOC

regulations are reasonable and declining to decide what

deference, if any, they are due).

According to Adams, her breast cancer treatment

rendered her completely unable to engage in sexual relations.

Due to the scarring from her mastectomy and breast

reconstruction, her overall post-surgery physical appearance,

lack of physical sensation, loss of libido accompanying her

medication, or some combination of those factors, she claims

that her “ability to enter into romantic relationships has been

crippled indefinitely and perhaps permanently.” Adams Decl.

¶ 49. The government nowhere challenges Adams’s assertion

that she was substantially limited in her ability to engage in

sexual relations or that this limitation was anything but a

direct result of her cancer treatment. By failing to do so, the

government has effectively conceded—at least for summary

judgment purposes—that Adams’s claimed impairment did,

in fact, substantially limit her in a major life activity. See

Bragdon, 524 U.S. at 641 (noting that “[t]estimony from

[plaintiff] that her HIV infection controlled her decision not

to have a child [was] unchallenged” and therefore taken as

true “[i]n the context of reviewing summary judgment”). Of

course, a jury hearing Adams’s testimony on this point could

well decide otherwise. But at this stage of the litigation,

Adams’s breast cancer qualifies as a disability because it

amounted to a physical impairment that substantially limited

her in the major life activity of sexual relations.

22

The dissent disagrees, finding Adams’s characterization

of her substantial limitation insufficient for lack of “evidence

that her impairment substantially limited her in a major life

activity at any time before the alleged discriminatory acts in

December 2003 and March 2004.” Dissenting Op. 2. This

argument fails for two reasons. First, the government never

raised it, and we therefore “have no occasion to reach [it] in

this case.” Bell v. Wolfish, 441 U.S. 520, 532 n.13 (1979);

see also United States ex rel. Totten v. Bombardier Corp., 380

F.3d 488, 497 (D.C. Cir. 2004) (“Ordinarily, arguments that

parties do not make on appeal are deemed to have been

waived.”). Second, even were we to consider the argument,

our standard of review on summary judgment requires us to

view the evidence in Adams’s favor, drawing all reasonable

inferences from her statements. See Woodruff v. Peters, 482

F.3d 521, 526 (D.C. Cir. 2007). Although Adams could have

stated with greater precision when her sexual limitation first

arose, we think it reasonable to conclude that her alleged

inability to engage in sexual relations began in September

2003 when Adams had her right breast removed and began

taking tamoxifen—the two treatment methods driving her

alleged sexual limitation. Given that Adams’s limitation

flowed directly from her post-surgery cosmetic disfigurement

and drug regimen, it makes no sense to infer, as the dissent

does, that the limitation first arose well into—or long after—

her course of treatment. See Dissenting Op. at 2, 13 n.11.

Accordingly, although we agree with the dissent that Adams

must have “a record of an impairment that substantially limits

one or more of the . . . plaintiff’s major life activities,” id. at 5

(quoting Gallagher, 181 F.3d at 655), we, unlike the dissent,

believe that Adams has made the requisite showing.

In a footnote, our dissenting colleague offers a second

argument not made by the government, namely that the Act

offers Adams no protection because “the impairment—

23

cancer—and the claimed limitation—fear of sexual activity—

never coincided.” Id. at 12 n.11. In the dissent’s view,

Adams could thus find no refuge in the Act even if she had

expressly stated that her sexual limitation commenced

immediately following her mastectomy and before the State

Department’s alleged discriminatory acts. This interpretation

renders the Rehabilitation Act a Catch-22 for cancer survivors

like Adams: when impaired, she had no limitation, and when

substantially limited, she’d been cured of her impairment.

Not only does this approach render the Rehabilitation Act a

mirage for claimants like Adams, but it ignores Sutton’s

instruction that when identifying substantial limitations under

the Act, courts must take into account “both positive and

negative” effects of treatment measures. 527 U.S. at 482.

The dissent’s approach would exclude from the Act’s

coverage cancer patients who experienced few limitations on

their life activities until they began the often grueling process

of surgery, radiation, and/or chemotherapy. This seems an

odd result for a remedial statute designed in no small part to

protect cancer survivors from employment discrimination.

See S. REP. NO. 93-1297, at 38-39.

Having left the sufficiency of Adams’s claims

unchallenged, the government’s only argument boils down to

this: an employer cannot be held liable for discrimination

based on a record of a disability unless it knows not only

about the employee’s alleged history of a physical or mental

impairment, but also how that impairment substantially

limited a major life activity. As the government sees it,

because Adams had not told the State Department—at the

time it revoked her medical clearance—that her cancer

limited her ability to engage in sexual relations, it cannot be

held responsible for any alleged discrimination. Far from

constituting a “spectacular red herring,” Dissenting Op. 8, this

is the sum total of the government’s argument before this

24

court. For her part, Adams, again relying on Bragdon, rejects

the view “that an employer is permitted to discriminate

against a person with a disability so long as it is unaware of

how the employee meets the definition of disability.”

Appellant’s Opening Br. 34. Finding no support for the

government’s interpretation in the statute or the case law

interpreting it, we agree with Adams.

Once again, Bragdon provides helpful guidance. There

an individual infected with HIV visited a dentist. Aware of

the patient’s HIV status, the dentist performed an examination

but upon discovering a cavity, refused to fill it in his office.

Bragdon, 524 U.S. at 628-29. The patient sued under the

ADA, alleging that the dentist had denied her equal access to

a public accommodation on the basis of a disability. See 42

U.S.C. § 12182(a) (prohibiting discrimination on the basis of

disability by any person operating a place of public

accommodation). After holding that the plaintiff’s HIV

qualified as a disability under the ADA, the Supreme Court

concluded that “no triable issue of fact impedes a ruling on

the question of statutory coverage.” Bragdon, 524 U.S. at

641. Notably the Court said nothing about whether the

dentist knew or cared that the plaintiff was limited in the

major life activity of reproduction—and that limitation had

nothing to do with the dentist’s refusal to treat the plaintiff—

yet the Court concluded that the dentist could be found liable

just the same. For the Court, it was enough that (1) the

dentist knew the plaintiff had a physical impairment (HIV),

(2) the impairment did, in fact, substantially limit a major life

activity, and (3) the dentist denied treatment because of the

plaintiff’s impairment. The same analysis applies here.

Viewed in the light most favorable to Adams, the record

shows (1) the State Department knew Adams had a record of

an impairment (breast cancer), (2) the impairment did, in fact,

substantially limit a major life activity, and (3) the State

25

Department denied Adams employment because of her cancer

history. True, Bragdon involved the ADA’s “actual

disability” definition, as the plaintiff had the impairment at

the time she was refused treatment, but we see no principled

reason why the same logic should not apply when the alleged

discrimination is based on a history of a qualifying disease

rather than on its present manifestation.

Even though Adams relies heavily on Bragdon, the

government’s brief never mentions the case. Instead, it relies

on two cases from this circuit, Crandall v. Paralyzed

Veterans of America, 146 F.3d 894 (D.C. Cir. 1998), and

Department of State v. Coombs, 482 F.3d 577 (D.C. Cir.

2007). But neither of those cases stands for the proposition

that an employer must know in what way the employee’s

impairment limits a major life activity in order to be held

liable for disability discrimination. For example, in Crandall

we held that a plaintiff’s Rehabilitation Act claim failed

because “he never told anyone” about his alleged impairment,

i.e., “that he had been diagnosed with or treated for bipolar

disorder or any other psychiatric disorder,” 146 F.3d at 895,

and we explained that to be held liable for disability

discrimination an employer needs “awareness of the disability

itself, and not merely an awareness of some deficiency in the

employee’s performance that might be a product of an

unknown disability,” id. at 897. In Coombs, a Foreign

Service officer challenged a negative performance evaluation

and subsequent termination decision by the Foreign Service’s

Performance Standards Board. 482 F.3d at 578. After that

decision was made, the employee submitted an affidavit from

a psychiatrist alleging that he had various mental disorders.

We held that no Rehabilitation Act discrimination claim could

lie because, as was true in Crandall, the defendant employer

had no knowledge of any alleged impairment when it made

the challenged decision. Indeed, we explained—in language

26

relied on by the government—that the plaintiff must show

“that the employer knew or had reason to know about the

employee’s alleged impairment when it made an adverse

employment decision.” Id. at 579 (emphasis added). Note

the use of the word “impairment” rather than “limitation.”

Neither Crandall nor Coombs holds that an employer must

know anything more than the employee’s impairment to be

held liable for discrimination. Indeed, the question we face

here—whether the employer must know about the employee’s

particular limitation—was not before the court in either of

those cases.

The district court cited two additional cases when

rejecting Adams’s “record of” claim—cases also cited in the

government’s brief: Colwell v. Suffolk County Police

Department, 158 F.3d 635 (2d Cir. 1998), and Hilburn v.

Murata Electronics North America, Inc., 181 F.3d 1220 (11th

Cir. 1999). Neither case supports the government’s position.

In Colwell, the plaintiff claimed that a previous cerebral

hemorrhage, which caused him to be hospitalized for thirty

days, constituted a record of an impairment that substantially

limited a major life activity. 158 F.3d at 645. The Second

Circuit disagreed, explaining that although the plaintiff’s

“hospitalization is certainly a record of an impairment, and

the hemorrhage was certainly an impairment,” the plaintiff

failed “to show that the impairment for which he was

hospitalized was imposing a substantial limitation on one or

more of his major life activities.” Id. at 646. The court then

recounted the plaintiff’s evidence, concluding that none of it

demonstrated a substantial limitation on any major life

activity. Id. (noting that the “only evidence of the extent of

the impairment caused by [plaintiff]’s hemorrhage” was a

brief hospital stay, six months recovery at home, and several

months of light duty upon his return to work). We agree with

the government—and the Colwell court—that a record of

27

temporary hospitalization, without more, is insufficient to

prove a disability. But more to the point, nothing in Colwell

suggests that the record presented to the employer had to

include information detailing the plaintiff’s substantial

limitation; the question was whether the record before the

court established that the statutory standard had been met.

Similarly, in Hilburn the Eleventh Circuit explained that “the

record-of-impairment standard is satisfied only if [plaintiff]

actually suffered a physical impairment that substantially

limited one or more . . . major life activities.” 181 F.3d at

1229. There, the plaintiff presented no evidence to the court

that her claimed impairment, heart disease, had in fact limited

any of her major life activities. See id. Here, by contrast,

Adams not only has shown that the State Department was

aware of her breast cancer history, but also has furnished

uncontroverted evidence that the impairment did, in fact,

substantially limit her ability to engage in sexual relations.

We find this sufficient under the Act’s “record of” definition.

Just as in Bragdon, whether the State Department knew the

precise details of her limitation is neither here nor there.

EEOC guidance interpreting the ADA’s “record of”

regulations supports this conclusion—indeed, it seems to go

further. According to the guidance, “[t]he impairment

indicated in the record must be an impairment that would

substantially limit one or more of the individual’s major life

activities.” 29 C.F.R. pt. 1630, app. § 1630.2(k) (emphasis

added). And cancer, the guidance suggests, is a paradigmatic

example of just such an impairment. See id. (“[T]his

provision protects former cancer patients from discrimination

based on their prior medical history.”).

Moreover, the government’s proposed knowledge

requirement conflicts with other aspects of federal hiring

procedures. According to HHS regulations interpreting the

28

Rehabilitation Act, federal employers “may not make

preemployment inquir[ies] of an applicant as to . . . the nature

or severity of a handicap.” 45 C.F.R. § 84.14(a). Although

this prohibition does not extend to “an applicant’s ability to

perform job-related functions,” id., no one suggests that

engaging in sexual relations has anything to do with serving

as a Foreign Service officer. Thus, under the government’s

view, Adams’s claim fails because the State Department

lacked knowledge of a fact that it was legally barred from

asking about. That makes no sense at all.

For a similar reason, we reject the government’s

jurisdictional argument that Adams failed to exhaust her

administrative remedies by omitting a reference to her sexual

limitation on her formal EEO complaint. No such disclosure

was necessary. A complainant need only file a signed

statement with the agency that is “sufficiently precise to

identify the aggrieved individual and the agency and to

describe generally the action(s) or practice(s) that form the

basis of the complaint.” 29 C.F.R. § 1614.106(c) (emphasis

added). Under this standard, Adams’s complaint sufficed.

Indeed, the EEO “Formal Complaint of Discrimination” form

simply asked Adams, “Why do you believe you were

discriminated against?” and to “[e]xplain specifically how

you were discriminated against (treated differently from other

employees or applicants) because of your physical

disabilities.” Nothing on the form asked how her impairment

substantially limited a major life activity, and for good

reason: given that employees often file administrative

complaints without the aid of counsel, it would frustrate the

statute’s aim to expect employees not only to explain in their

complaints the allegedly discriminatory action they suffered,

but also to list the precise way in which they satisfy the

Rehabilitation Act’s definitional section in 29 U.S.C. §

705(20)(B). Here, Adams alleged that the State Department

29

denied her employment because she once had stage-one

breast cancer. That suffices for administrative exhaustion

purposes. Cf. Shehadeh v. Chesapeake & Potomac Tel. Co.

of Md., 595 F.2d 711, 727 (D.C. Cir. 1978) (noting in a Title

VII case that “complaints to the Commission are to be

construed liberally since very commonly they are framed by

persons unschooled in technical pleading”).

III.

It seems to us that what’s driving the government’s

argument is basic confusion over the various ways in which a

person can suffer discrimination under the Act. An

employer’s knowledge of an employee’s limitation—as

opposed to her impairment—is certainly relevant when the

disabled employee requests a workplace accommodation. As

discussed above, in such cases the accommodation sought

must relate to the limitation at issue. See McAlindin, 192 F.3d

at 1237 (“[T]he major life activities affected by the

impairment are relevant only to the extent that they affect the

type of accommodation that may be necessary and whether

the employer has provided a reasonable accommodation.”);

Taylor v. Principal Fin. Group, Inc., 93 F.3d 155, 164 (5th

Cir. 1996) (“This distinction is important because the ADA

requires employers to reasonably accommodate limitations,

not disabilities.”). But in pure discrimination cases like

Adams’s, an employer’s knowledge of the precise limitation

at issue is irrelevant; so long as the employee can show that

her impairment ultimately clears the statutory hurdle for a

disability—i.e., it substantially limited a major life activity—

the employer will be liable if it takes adverse action against

her based on that impairment.

Consider the following hypothetical. Suppose a

telephone receptionist takes a leave of absence from work

because he’s experiencing headaches only to discover that he

30

has a malignant brain tumor. The tumor is surgically

removed, rendering the employee cancer-free. As a result of

the treatment, however, the employee experiences significant

hearing loss. Now suppose the employer learns about the

tumor—but has no idea about the hearing loss—and informs

the employee he’s not welcome back at work because he had

cancer. Is that illegal discrimination under the Act? Of

course it is. In such situations it makes no difference whether

an employer has precise knowledge of an employee’s

substantial limitation; as in Bragdon, it is enough for the

employer to know about the impairment. Cf. Blackwell v.

Dep’t of Treasury, 830 F.2d 1183, 1183-84 (D.C. Cir. 1987)

(stating that the Rehabilitation Act does not require

complainants to provide employers with “precise notice of a

handicap”). If, however, the hypothetical telephone

receptionist sought an accommodation from his employer so

that he could return to work, the employer would obviously

need to know about the employee’s claimed hearing

limitation. The upshot is this: if an employer discriminates

against an employee on the basis of a physical or mental

impairment, or the record thereof, and if the impairment in

fact qualifies as a “disability” under the Act, i.e., it

substantially limits or once limited a major life activity, then

the employer may be vulnerable to a charge of employment

discrimination.

This conclusion makes sense because creating a

knowledge requirement in situations involving pure

discrimination would shield the most ignorant, irrational, and

prejudiced employers—precisely the kinds of employers

Congress intended the Act to reach. Under the government’s

theory, an employer could lawfully fire an employee solely

for revealing that she had recovered from ovarian cancer after

undergoing a hysterectomy, so long as the employer didn’t

know the effect such treatment has on reproduction. A better

31

informed employer, however, would suffer the full

consequences of his decision. Congress could not have

intended ignorance to act as a safe harbor. Moreover, in the

government’s view, to preserve a claim under either the

Rehabilitation Act or the ADA, cancer survivors would have

to announce to employers, “Yes, I once had cancer, and it

substantially limited me in the following major life

activities.” Absent such disclosure, the employer could

discriminate at will simply because he didn’t like having

cancer survivors around the office, or because he harbored

“the irrational fear that they might be contagious.” Sch. Bd.

of Nassau County v. Arline, 480 U.S. 273, 284 (1987). As

amici point out in their brief, Congress enacted the

Rehabilitation Act and the ADA to forbid such blatantly

discriminatory actions, intending to protect cancer survivors

who qualify as disabled under the statute from employment

discrimination based on myths, fears, and stereotypes about

the disease.

IV.

In sum, because Adams has provided sufficient evidence

showing that she has a record of an impairment that

substantially limited her in a major life activity, and because

the government nowhere contested any of the evidence

Adams offered in support of her disabled status, we reverse

the district court’s grant of summary judgment to the State

Department and remand for proceedings consistent with this

opinion.

So ordered.

KAREN LECRAFT HENDERSON, Circuit Judge, dissenting:

My colleagues and I agree that the only way Kathy Adams

(Adams) survives summary judgment in favor of the U.S.

Department of State (Department) on her Rehabilitation Act

claim is under 29 U.S.C. § 705(20)(B)(ii), the “record of

impairment” definition of “disability.”1 Applying the well-

settled standard set forth in Celotex Corp. v. Catrett, 477 U.S.

317, 323 (1986), I am convinced that Adams “has failed to make

a sufficient showing on an essential element of her case.”

Accordingly, I believe the district court correctly granted

summary judgment to the Department and I respectfully

dissent.2

1

The Rehabilitation Act of 1973 (Rehabilitation Act or Act)

defines “individual with a disability” as

“any person who—

(i) has a physical or mental impairment which

substantially limits one or more of such person’s

major life activities;

(ii) has a record of such an impairment; or

(iii) is regarded as having such an impairment.

Id. § 705(20)(B). Adams has no claim under section 705(20)(B)(i)

(“first prong”) because her physical impairment—Stage one breast

cancer—was “cured” by her mastectomy and she does not meet

section 705(20)(B)(iii) (“third prong”) under Gasser v. District of

Columbia, 442 F.3d 758 (D.C. Cir. 2006); see also Duncan v.

Washington Metro. Area Transit Auth., 240 F.3d 1110 (D.C. Cir.

2001) (en banc). Her remaining claim is her “record of impairment”

(“second prong”) claim.

2

In light of my dissent from the “record of impairment” holding,

I would not reach the question, as yet unanswered in this Circuit,

whether sexual activity constitutes a major life activity under the

statutory definition. In asserting that such a limitation exists, the

majority relies on Bragdon v. Abbott, 524 U.S. 624 (1998), in which

the United States Supreme Court held only that “reproduction” is a

2

To be an “individual with a disability” under the second

prong of section 705(20)(B), Adams must “ha[ve] a record of

such an impairment.” “Such an impairment” refers to the first

prong, that is, an “impairment which substantially limits one or

more . . . major life activities,” 29 U.S.C. § 705(20)(B)(i). See

Webster’s Third New Int’l Dictionary 2283 (1993) (defining

“such” as “having a quality already or just specified”). Thus,

there must be a record, or a history, showing that at some time

before the alleged discrimination Adams had a disability under

the first prong. See Heisler v. Metro. Council, 339 F.3d 622,

630 (8th Cir. 2003) (“To have a record of an impairment, an

employee must ‘ha[ve] a history of . . . a mental or physical

impairment that substantially limits one or more major life

activities.’ ” (quoting 29 C.F.R. § 1630.2(k) (alteration in

Heisler))). While it is undisputed that she had an

impairment—breast cancer—during the fall of 2003, she offered

no evidence that her impairment substantially limited her in a

major life activity at any time before the alleged discriminatory

acts in December 2003 and March 2004.3 Instead, Adams relied

on allegations made long after the fact. In her amended

complaint, filed some 15 months after the Department reduced

her medical clearance, Adams asserted for the first time that she

“is . . . limited in the major life activity of sexual contact and

romantic intimacy” and “[t]his limitation may be due to a

variety of physical and psychological effects of cancer

major life activity. See 424 U.S. at 638-39. The Bragdon Court did

not address whether sexual activity outside of the reproduction context

qualifies as Adams claims.

3

Because the inquiry focuses on “such person’s major life

activities,” 29 U.S.C. § 705(20)(B)(i) (emphasis added), it does not

suffice that a record of breast cancer can substantially limit a major

life activity. Instead, Adams must demonstrate that at the time of the

alleged discrimination she had such a record.

3

treatment.” Adams v. Rice, No. 05-941, Am. Compl. ¶ 12

(D.D.C. filed March 9, 2005) (emphasis added).4 She elaborated

somewhat in a subsequent declaration:

Like many breast cancer survivors, whether by virtue of

my discomfort with the way my body looks, loss of

sensation after my surgeries, my deepseated fear that

prospective suitors will reject me because of my history

of cancer, loss of a breast, and current physical

appearance, or the side effects of medication that causes

loss of libido, I now find the prospect of dating and

developing an intimate relationship just too painful and

frightening.

Nov. 26, 2005 Decl. of Kathy E. Adams ¶ 49 (emphasis added).

In both statements, Adams described only a current (2005)

limitation, using a present tense verb and the adverb “now.” She

has never asserted that the limitation (and thus her disability)

existed before the alleged discrimination. In the absence of any

record—documentary, or otherwise—of a qualifying

impairment when she was allegedly discriminated against, the

second prong was not satisfied and therefore Adams was not as

a matter of law an “individual with a disability” protected under

the Act. That the second prong requires a record that manifests

both a physical or mental impairment and its substantial

limitation on a major life activity is reinforced by decisions from

other circuits.

4

Adams, herself a lawyer, made no mention of the alleged sexual

limitation in her EEOC complaint or her original district court

complaint. In fact, in her EEOC complaint dated July 22,

2004—several months after the alleged discrimination occurred—she

affirmatively declared that she had “resumed all physical activities,”

making no exception for sexual activities. Formal Compl. of

Discrimination 1 (emphasis added).

4

In EEOC v. R.J. Gallagher Co., 181 F.3d 645 (5th Cir.

1999), the Fifth Circuit recognized that under the definition of

“disability” in the Americans with Disabilities Act (ADA), 42

U.S.C. § 12102(2)(A), which tracks almost verbatim the

Rehabilitation Act’s definition of “individual with a disability,”5

the historical record must indicate both an impairment and a

major life activity limitation. The Gallagher court relied on the

Supreme Court’s decision in Sutton v. United States, 527 U.S.

471 (1999) (Sutton), in which the Court held that neither of two

severely myopic sisters, who had been rejected for positions as

commercial airline pilots, had a disability under the ADA. The

Court explained that, although each sister had an impairment

(severe myopia), the impairment did not limit a major life

activity at the time they claimed they were discriminated against

because each sister’s vision was by then normal (or better) with

corrective lenses. Citing Sutton, the Gallagher court rejected a

portion of the EEOC interpretive guidance promulgated in 1991

stating that the record of impairment prong “ ‘protects former

cancer patients from discrimination based on their prior medical

history’ ” 181 F.3d at 655 (quoting 29 C.F.R. pt. 1630, App.

§ 1630.2(k)) (interpreting statutory phrase “record of such

impairment”). The court explained:

5

The ADA definition of “disability” provides:

The term “disability” means, with respect to an

individual—

(A) a physical or mental impairment that

substantially limits one or more of the major life

activities of such individual;

(B) a record of such an impairment; or

(C) being regarded as having such an impairment.

42 U.S.C. § 12102(2).

5

This broad position obviously cannot be the rule in the

wake of Sutton, which emphasizes both the ADA’s

requirement of individualized inquiry and a focus on the

actual effects of the impairment. In other words, it is not

enough for an ADA plaintiff to simply show that he has

a record of a cancer diagnosis; in order to establish the

existence of a “disability” under § 12102(2)(B), there

must be a record of an impairment that substantially

limits one or more of the ADA plaintiff’s major life

activities.

Id. (emphasis added). Here, as in Gallagher, there was a record

of cancer but no record of any substantial limitation it produced.

Even more on point is the Second Circuit’s decision in

Colwell v. Suffolk County Police Department, 158 F.3d 635 (2d

Cir. 1998). In Colwell, three police officers asserted they had

been passed over for promotion on account of the lingering

effects of past injuries, claiming they were disabled under all

three prongs of the ADA definition. The Second Circuit first

rejected the plaintiffs’ impairment claims under the first prong

because they failed to produce “evidence sufficient to show that

the limitation [each] suffered with respect to a major life activity

was substantial.” 158 F.3d at 645. The court then addressed the

plaintiffs’ record of impairment claims and rejected them as

well, quoting language from the same EEOC interpretive

guidance discussed in Gallagher.6 The interpretive language the

6

The EEOC interpretive guidance on the record of impairment

prong states in pertinent part:

The second part of the definition provides that an

individual with a record of an impairment that substantially

limits a major life activity is an individual with a disability.

The intent of this provision, in part, is to ensure that people

are not discriminated against because of a history of

disability. For example, this provision protects former

6

Colwell court discussed states: “This part of the definition is

satisfied if a record relied on by an employer indicates that the

individual has or has had a substantially limiting impairment.”

29 C.F.R. pt. 1630, App. § 1630.2(k) (emphases added).

Relying on this language, the court rejected the plaintiffs’

contention that their personnel records “show[ed] a history of a

substantially limiting impairment” because “the records of

impairment that each plaintiff showed involved no greater

degree of limitation of major life activities than the continuing

impairments they showed.” 158 F.3d at 645. In the Second

Circuit’s view, the personnel records were inadequate to

establish a “record” of a qualifying impairment under the second

prong because they manifested only an impairment and not a

resulting major life activity limitation.

Like the plaintiffs in Colwell, Adams has pointed to a record

existing at the time of the alleged discrimination that identified

an impairment but none that even suggested a resulting

substantial limitation. To the contrary, the record in late 2003

to early 2004 painted a rosy picture of Adams’s condition,

indicating she had made a full recovery. See, e.g., 12/9/03

Letter from Adams to State Dep’t Office of Med. Servs.

(reporting after doctor visit: “Everything is fine.”); 11/19/03

Letter from Dr. Mark A. O’Rourke to State Dep’t (“At this time,

cancer patients from discrimination based on their prior

medical history. * * * This part of the definition is satisfied

if a record relied on by an employer indicates that the

individual has or has had a substantially limiting

impairment. The impairment indicated in the record must

be an impairment that would substantially limit one or more

of the individual’s major life activities. There are many

types of records that could potentially contain this

information, including but not limited to, education,

medical, or employment records.

29 C.F.R. pt. 1630, App. § 1630.2(k).

7

Kathy has no job limitations whatsoever. She is cancer-free and

is able to undertake a full schedule of work, travel, and vigorous

sports, as she had already enjoyed. . . . I can say with complete

confidence that this history of breast cancer will not slow her

down one bit at all.”); 1/12/04 Letter from Dr. Mark A.

O’Rourke to State Dep’t Bd. of Exam’rs for Foreign Serv. (“She

has fully recovered from her surgeries . . . She remains cancer-

free. . . . Kathy’s post-cancer status is in no way incapacitating.

She has no performance limitations whatsoever on her ability to

work, travel, or engage in the vigorous sports she enjoys . . . .”).

Given that she had no record of a qualifying impairment when

the Department reduced her medical clearance and denied her a

waiver, she could not then be an individual with a disability

under 29 U.S.C. § 705(20)(B) so as to be protected by the Act.

In asserting otherwise, the majority does precisely what the Fifth

Circuit in Gallagher proscribed as contrary to Sutton, namely,

finding that a person has a disability based on a record of a

cancer diagnosis but without a record of a resulting substantial

limitation. See Gallagher, 181 F.3d at 655. The majority’s

holding similarly conflicts with the Second Circuit’s conclusion

in Colwell, 158 F.3d at 645.

Most recently, the Eleventh Circuit decided a first prong

Rehabilitation Act claim that is nonetheless strikingly similar to

Adams’s. In Garrett v. University of Alabama, Birmingham,

507 F.3d 1306, 1315 (11th Cir. 2007), the plaintiff, who was

also diagnosed with breast cancer, underwent two surgeries, a

course of radiation and chemotherapy treatments between

August 1994 and June 1995. She returned to work in July 1995

and on July 21, 1995, her supervisor allegedly demoted her on

account of her cancer. Garrett’s limitations included “caring for

herself, performing manual tasks, lifting, and working.” Id. at

1310. The Eleventh Circuit affirmed the grant of summary

judgment to the defendant, rejecting the plaintiff’s reliance “not

only upon the status of her impairments and limitations prior to

[demotion] but also [her] misplace[d] . . . reliance upon her

8

condition years after . . . .” Id. at 1312. Adams’s reliance on her

belated claim of a sexual limitation in 2005 is equally

misplaced—and fatal to her case. In accepting her claim as a

sort of nunc pro tunc allegation, the majority directly clashes

with the Eleventh Circuit’s holding in Garrett.7 As the Eleventh

Circuit correctly stated: “The Rehabilitation Act does not

protect employees who become disabled after the discriminatory

act, but protects those employees who were disabled at the time

of the discriminatory act.” 507 F.3d at 1315.

Additionally, the majority’s focus on notice in this case is a

spectacular red herring. See maj. op. 23-28, 29-31. Notice is

not an issue because Adams did not have the requisite record of

which the Department could have had notice when it reduced

Adams’s medical clearance. Nonetheless, given the support for

such a requirement in the case law, I cannot let pass

unchallenged the majority’s dicta rejecting a notice requirement.

The Rehabilitation Act imposes liability only if the employer

discriminates against the applicant “solely by reason of her or

his disability,” 29 U.S.C. 794(a). In Crandall v. Paralyzed

Veterans of America, 146 F.3d 894 (D.C. Cir. 1998), we made

clear that the quoted language requires that the employer be on

notice of the claimed “disability,” that is, on notice of both the

impairment and the resulting limitation that together constitute

the disability.8 See § 705(20)(B)(i). In Crandall, the plaintiff

7

Adams’s 2005 allegations suffer from yet another defect the

Garrett court highlighted. Her amended complaint and her declaration

describe the causal link between her cancer treatment and the alleged

sexual limitation only “in general and vague terms,” 507 F.3d at 1315

(noting “the lack of any objective evidence of the extent of Garrett's

limitations”) (emphasis added). See Am. Compl. ¶ 12 (“may be due

to”); Adams Decl. ¶ 49 (“whether by virtue of”).

8

In Crandall, we applied the version of section 794(a) in effect at

the time of the alleged discrimination, which version prohibited

9

was fired for “acts of rudeness” and afterward disclosed to the

employer that he had been diagnosed as suffering from bi-polar

disorder. The district court granted summary judgment to the

employer, holding that “no reasonable factfinder could have

found that [the employer] discriminated on the basis of [the

employee’s] disability, since it had neither actual nor

constructive notice of his disability when it fired him.” 146 F.3d

at 895. We affirmed, declaring quite broadly:

The courts of appeals have overwhelmingly agreed

that for this causal link to be shown the employer must

have acted with an awareness of the disability itself, and

not merely an awareness of some deficiency in the

employee’s performance that might be a product of an

unknown disability. They have so found under both the

Rehabilitation Act itself and the analogous provision of

the [ADA], 42 U.S.C. § 12112(a) (providing that no

employer “shall discriminate against a qualified

individual with a disability because of the disability of

discrimination against an “otherwise qualified handicapped individual

in the United States . . . solely by reason of his handicap,” 29 U.S.C.

§ 794(a) (1992). Although the language was amended in 1992 to

replace “handicap” with “disability,” see Pub. L. No. 102-569,

§ 102(p)(36), 106 Stat. 4344, 4360 (1992), the earlier version defined

“individual with handicaps” in the same way that the current version

defines “individual with a disability.” Compare 29 U.S.C.

§ 706(8)(B) (1992) with 29 U.S.C. § 705(2)(B)(2008).

Notwithstanding we applied the “handicap” version in Crandall, we

used the then-current statutory term “disability” throughout the text of

the opinion in place of the dated “handicap.” Compare 146 F.3d at

896 (quoting statutory prohibitions against discriminating against a

“handicapped individual . . . solely by reason of his handicap”) with

id. at 897 (rejecting argument that “if the poor performance causes

dismissal, then the dismissal was ‘by reason of'’ the disability” so as

to satisfy the statutory prohibition).

10

such qualified individual . . . .”). See, e.g., Taylor v.

Principal Financial Group, Inc., 93 F.3d 155, 163 (5th

Cir. 1996) (“To prove discrimination [under the ADA],

an employee must show that the employer knew of such

employee’s substantial physical or mental limitation.”);

Morisky v. Broward County, 80 F.3d 445, 447-49 (11th

Cir. 1996) (liability under the ADA requires actual or

constructive notice of the disability); Collings v.

Longview Fibre Co., 63 F.3d 828, 834 (9th Cir. 1995)

(assuming plaintiffs had a medically recognizable drug

disability, they could not make out a case under the

ADA where they could not show that employer was

aware of it); Miller v. National Casualty Co., 61 F.3d

627, 629 (8th Cir. 1995) (under ADA, “[b]efore an

employer must make accommodation for the physical or

mental limitation of an employee, the employer must

have knowledge that such a limitation exists.”); Hedberg

v. Indiana Bell Tel. Co., 47 F.3d 928, 932 (7th Cir.1995).

146 F.3d at 896-97 (emphases added). That Crandall and the

decisions it quotes use “disability” and “limitation” rather than

“impairment”—each of which terms has a precise statutory

meaning—manifests that the employer must have notice of both

the impairment and the limitation that make up the disability.

And it is of no consequence that Crandall is a first prong case

because a second prong case must incorporate a first prong

disability. See infra note 11.

To support its contention that an employer need have notice

only of an impairment and not of a limitation (at least if the

limitation does not require accommodation, see maj. op. 29-30),

the majority looks to the Supreme Court’s decision in Bragdon

v. Abbott, 524 U.S. 624 (1998), in which the Court concluded

that a woman infected with the human immunodeficiency virus

(HIV) was disabled under the first prong because her

impairment, HIV, limited her major life activity of reproduction.

11

524 U.S. at 631-48. The majority emphasizes that “the Court

said nothing about whether the dentist knew or cared that the

plaintiff was limited in the major act of reproduction.” Maj. op.

24. The Court’s silence, however, is unremarkable given that

the dentist’s knowledge vel non of the limitation was not one of

the issues the respondent dentist raised in his petition and on

which the court granted certiorari. See Bragdon, 524 U.S.628

(“We granted certiorari to review, first, whether HIV infection

is a disability under the ADA when the infection has not yet

progressed to the so-called symptomatic phase; and, second,

whether the Court of Appeals, in affirming a grant of summary

judgment, cited sufficient material in the record to determine, as

a matter of law, that respondent’s infection with HIV posed no

direct threat to the health and safety of her treating dentist.”)

(emphasis added).9

9

While I have assumed arguendo that sexual activity constitutes

a major life activity, see supra note 2, I note that the Department’s

position is that sexual activity “can” qualify “to the [extent] that

procreation may be implicated.” Oral Arg. at 20:15. But the

Department has nowhere accepted that Adams had that limitation at

the time of the medical clearance denial nor could it inasmuch as at

that point she had not even mentioned the limitation. In fact, Adams’s

counsel, in response to a question about Adams’s failure to so note in

her EEO complaint, said that an immediate limitation resulted from

the treatment. Oral Arg. at 17:15. Adams’s physical impairment,

however, was the breast cancer, not the mastectomy. While I agree

that the Department did not define what precisely the “record” of

impairment must comprise under prong two, we of course are free to

affirm on that ground. See In re Swine Flu Immunization Prods. Liab.

Litig., 880 F.2d 1439, 1444 (D.C. Cir. 1989). Moreover, because the

issue is one of statutory construction, I believe we are obligated to

construe it accurately. See Eldred v. Ashcroft, 255 F.3d 849, 853

(D.C. Cir. 2001) (en banc) (“ ‘When an issue or claim is properly

before the court, the court is not limited to the particular legal theories

advanced by the parties, but rather retains the independent power to

12

In sum, because Adams had no record—documentary, or

otherwise—of a qualifying impairment when the Department

allegedly discriminated against her,10 I would affirm the district

court’s grant of summary judgment on the ground that she was

“unable to demonstrate that she is disabled within the definition

of the Rehabilitation Act.” 484 F. Supp. 2d at 17.11 I therefore

identify and apply the proper construction of governing law.’ ”

(quoting Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991));

U.S. Nat’l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439,

447 (1993) (“[The] court may consider an issue antecedent to and

ultimately dispositive of the dispute before it, even if the parties fail

to identify and brief.” (ellipsis and quotations omitted)).

10

The majority acknowledges that Adams could have described

“with greater precision” when her sexual limitation began but finds it

“reasonable to conclude that [it] began in September 2003,” maj. op.

22, as a result of her “course of treatment.” Id. The reasonableness of

the majority’s conclusion escapes me both in light of the showing

Adams did make of her “full recovery” by December 2003, supra pp.

6-7, and in light of case law rejecting recuperation from surgery as a

qualifying limitation. See, e.g., Garrett, 507 F.3d at 1315 (“ ‘A

temporary inability to work while recuperating from surgery is not . . .

a permanent or long-term impairment and does not constitute evidence

of a disability covered by the Act.’ ” (quoting Sutton v. Lader, 185

F.3d 1203, 1209 (11th Cir. 1999))).

11

Unlike the majority, I believe that Adams’s first prong

deficiency also dooms her second prong claim. Adams failed to

establish a first prong disability because she offered no evidence that

at the time she was allegedly discriminated against, she was

simultaneously both impaired and limited in a major life activity so as

to qualify under the first prong, which applies only to a person who

“has a physical or mental impairment which substantially limits one

or more of [her] major life activities.” (Emphasis added.)

Significantly, each of the first prong’s requirements is expressed in the

present tense, indicating that each must occur simultaneously, that is,

13

respectfully dissent.12

the person must have an impairment and the impairment must limit a

major life activity at the same time. That the tense of the verbs is

significant is clear from the Supreme Court’s Sutton opinion, in which

the Court relied heavily on the statute’s use of “the present indicative

verb form” of “limits,” which the Court interpreted as “requiring that

a person be presently—not potentially or hypothetically—substantially

limited in order to demonstrate a disability.” 527 U.S. at 482. The

verb “has” in the same provision is the same tense as “limits”—the

present indicative. In other words, the plain language of the first

prong requires that a disabled person have an impairment and a

resulting limitation occurring together. In Adams’s case, the

impairment—cancer—and the claimed limitation—fear of sexual

activity—never coincided. Once Adams’s treatment was complete,

she no longer had an impairment because her cancer was gone. See

11/19/03 Letter from Dr. Mark A. O’Rourke to State Dep’t (declaring

Adams “cancer-free”). Nor was Adams disabled under the first prong

before her treatment (when she still had the impairment of cancer)

because she did not then experience the limitation she now claims.

Her sexual limitation arose only after and as a result of her cancer

treatment. See Nov. 26, 2005 Decl. of Kathy E. Adams ¶ 49 and

Adams v. Rice, No. 05-941, Am. Compl. ¶ 12 (both quoted supra pp.

2-3). How long after, we can only guess on this record. See supra pp.

2-3 & note 4. Because Adams never had an impairment that, at the

time she had it, substantially limited a major life activity under the

first prong, she could likewise not have a “record of such an

impairment” under the second prong.

12

It is the timing of this case, I think, that makes it such a bad fit

under the Rehabilitation Act and, consequently, a bad candidate for a

precedent-setting opinion on the requirements of a second prong

claim. There are record indications that, had Adams delayed pursuing

her Foreign Service career somewhat longer than three months post-

op, the Department would have considered her fit for duty. See, e.g.,

Brown Decl. ¶¶ 3, 4; FAQ (JA 104).