William Eshleman v. Patrick Industries Inc

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

__________

No. 19-1403

__________

WILLIAM ESHLEMAN,

Appellant

v.

PATRICK INDUSTRIES, INC.

______________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 5-17-cv-004427)

District Judge: Hon. Jeffrey L. Schmehl

______________

Argued September 26, 2019

Before: SMITH, Chief Judge, McKEE, and PHIPPS Circuit

Judges

(Opinion filed: May 29, 2020)

Samuel A. Dion [Argued]

Dion & Goldberger

1845 Walnut Street

Suite 1199

Philadelphia, PA 19103

Counsel for Appellant

Kenneth D. Kleinman

Stevens & Lee

1818 Market Street

29th Floor

Philadelphia, PA 19103

Theresa M. Zechman [Argued]

Stevens & Lee

51 South Duke Street

P.O. Box 1594

Lancaster, PA 17602

Counsel for Appellee

__________

OPINION OF THE COURT

__________

McKEE, Circuit Judge

William Eshleman appeals the District Court’s grant of

Patrick Industries’ Rule 12(b)(6) motion to dismiss the suit

Eshleman filed after Patrick Industries fired him. Eshleman

claimed that Patrick Industries regarded him as disabled in

violation of the Americans with Disabilities Act of 1990 (the

2

ADA) 1 because he took two months of medical leave for a

lung biopsy procedure and two vacation days for an upper

respiratory infection. The District Court held that the ADA

did not cover Eshleman’s “regarded as” claim because his

impairment lasted less than six months and was therefore

“transitory and minor.” As we explain in more detail below,

because the District Court did not conduct an independent

analysis into whether Eshleman’s impairment was minor,

apart from whether it was transitory, we will reverse and

remand for further proceedings.

I. BACKGROUND

A. Facts

According to the First Amended Complaint, 2

Eshleman started working as a truck driver for Patrick

Industries in July 2013. 3 Between October 14, 2015 and

December 14, 2015, Eshleman took medical leave to undergo

surgery to remove a nodule from his left lung. 4 He told his

supervisor that the nodule had to be removed and tested for

cancer. 5 After two months of medical leave, Eshleman

returned to work in his full capacity, without restrictions. 6

However, about six weeks later, Eshleman suffered a severe

1

42 U.S.C. § 12101 et seq.

2

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 572 (2007) (“[A]

judge ruling on a defendant's motion to dismiss a complaint

‘must accept as true all of the factual allegations contained in

the complaint.’”) (quoting Swierkiewicz v. Sorema N.A., 534

U.S. 506, 508, n. 1 (2002)).

3

A26.

4

A27.

5

Id.

6

Id.

3

respiratory infection lasting from January 27, 2016 until

January 31, 2016. 7 His supervisor approved two vacation

days during this time. 8 With his physician’s approval,

Eshleman returned to work in his full capacity on February 1,

2016. 9 At the end of his shift on his second day back, Patrick

Industries fired him. 10

The Superintendent where Eshleman worked told

Eshleman he was terminated due to “performance issues.” 11

However, Eshleman reminded the Superintendent that his

performance review from early January 2016 had been

excellent, with all 4.5’s and one five out of a possible five in

each category evaluated. 12 Thereafter, the Superintendent

claimed that Eshleman was fired because he had not called

out sick during his recent leave for the upper respiratory

infection. 13 Later, Eshleman learned that the reason for his

termination had been changed yet again and the employer was

claiming he had been fired for “behavioral issues.” 14

As we noted at the outset, Eshleman sued Patrick

Industries alleging that the real reason for his termination was

that he was regarded as disabled in violation of the ADA and

that the shifting reasons for his termination were merely a

pretext for illegal disability discrimination. 15 According to

7

Id.

8

Id. January 30 and 31 may not have not counted as workdays

as they fell on a Saturday and Sunday.

9

Id.

10

Id.

11

Id.

12

Id.

13

Id.

14

A28.

15

Id.

4

Eshleman, Patrick Industries fired him because they

“perceived that [Eshleman] suffered from [a] long-term or

chronic medical condition which would affect his attendance

in the future, like it had in the immediate past, due to what

they perceived as continuing medical issues.” 16 He claims

that Patrick Industries, based solely on his recent record of

medical issues and the resulting nine-and-a-half weeks of

work that he missed in a fifteen week period because of his

lung biopsy and respiratory infection, concluded that he “was

unreliable, a liability, and unable to perform a wide range of

jobs.” 17

B. The ADA

The Americans with Disabilities Act of 1990 prohibits

covered entities from discriminating against qualified

employees based on their disabilities. 18 To state a claim

under the ADA, a plaintiff must demonstrate: “(1) [s/]he is a

disabled person within the meaning of the ADA; (2) [s/]he is

otherwise qualified to perform the essential functions of the

job, with or without reasonable accommodations by the

employer; and (3) [s/]he has suffered an otherwise adverse

employment decision as a result of discrimination.” 19 For the

purposes of the ADA, plaintiffs are disabled if they: (1) have

16

Id.

17

Id.

18

42 U.S.C. § 12112; see also Williams v. Phila. Hous. Auth.

Police Dep’t, 380 F.3d 751, 755 (3d Cir. 2004), superseded

on other grounds by statute, ADA Amendments Act of 2008,

Pub. L. No. 110-325, § 6, 122 Stat. 3553, 3558.

19

Taylor v. Phoenixville School Dist., 184 F.3d 296, 306 (3d

Cir. 1999) (citing Gaul v. Lucent Technologies, Inc., 134 F.3d

576, 580 (3d Cir. 1998)).

5

“a physical or mental impairment that substantially limits one

or more” of their “major life activities”; (2) have “a record of

such an impairment”; or (3) are “regarded as having such an

impairment.” 20

Eshleman claims that Patrick Industries fired him

because the company regarded him as disabled in violation of

42 U.S.C. § 12102(1)(C) based on his medically required

absences. A plaintiff states a “regarded as” claim if s/he

“establishes that he or she has been subjected to an action

prohibited under [the ADA] because of an actual or perceived

physical or mental impairment whether or not the impairment

limits or is perceived to limit a major life activity.” 21 An

employer regards a person as disabled when it

“misinterpret[s] information about an employee’s limitations

to conclude that the employee is incapable of performing” his

or her job requirements. 22 The ADA includes “regarded as”

claims because being perceived as disabled “may prove just

as disabling” to a person as another type of physical or mental

impairment. 23

However, the ADA limits “regarded as” claims by

excluding “impairments that are transitory and minor.” 24

Accordingly, if the perceived disability is “transitory and

minor,” a plaintiff cannot state a “regarded as” discrimination

20

42 U.S.C. § 12102(1).

21

42 U.S.C. § 12102(3)(A).

22

Ross v. Kraft Foods N. Am., Inc., 347 F. Supp 2d. 200, 204

(E.D. Pa. 2004) (citing Rinehimer v. Cemocolift, Inc., 292 F.3d

375, 381 (3d Cir. 2002)).

23

Williams, 380 F.3d at 774.

24

42 U.S.C. § 12102(3)(B).

6

claim. 25 The ADA defines “transitory” as “an impairment

with an actual or expected duration of 6 months or less,” but

does not define “minor.” 26 The District Court concluded that

the face of Eshleman’s complaint fell within this exception

and therefore dismissed his suit under Federal Rule of Civil

Procedure 12(b)(6).

The District Court relied on “the temporal proximity

between Mr. Eshleman’s medical absences and his

termination…to support an inference that Patrick Industries

regarded [him] as disabled” and concluded that Eshleman

sufficiently pled a “regarded as” claim under the ADA. 27

Nevertheless, the court dismissed the complaint with leave to

amend for failure to state a claim because the court held that

the “[c]omplaint lacks any proof that his surgery and severe

25

A22. See also Budhun v. Reading Hosp. and Med. Ctr., 765

F.3d 245, 259 (3d Cir. 2014) (“While ordinarily a party may

not raise affirmative defenses at the motion to dismiss stage, it

may do so if the defense is apparent on the face of the

complaint”) (internal citations omitted). Following the

EEOC’s lead, our caselaw has sometimes described the

limitation on “transitory and minor” impairments as an

“affirmative defense.” Id. (citing 29 C.F.R. § 1630.15(f)). We

think this is imperfect shorthand, since the statutory text

demands a non-transitory or non-minor perceived impairment

for regarded-as claims. Put differently, a regarded-as plaintiff

alleging a transitory and minor impairment has failed to state a

legally sufficient claim, even if the employer does not include

a transitory and minor defense in its Answer.

26

42 U.S.C. § 12102(3)(B).

27

A25.

7

upper respiratory infection were anything but transitory and

minor.” 28

The Amended Complaint included additional

information about the nature and purpose of Eshleman’s

medical leave but did not negate the transitory and minor

exception. Accordingly, the District Court granted Patrick

Industries’ motion to dismiss the First Amended Complaint. 29

In doing so, it reiterated that Eshleman had pled a plausible

“regarded as” claim. However, relying upon our decision in

Budhun v. Reading Hospital and Medical Center, 30 the

District Court held that Eshleman’s alleged impairment was

objectively transitory and minor because “the actual or

expected duration…lasted less than six months.” 31 This

appeal followed. 32

II. DISCUSSION

Eshleman argues that the District Court committed two

errors in dismissing his complaint. He alleges that the

District Court failed to consider whether his actual

impairment—lung surgery to remove a nodule and test it for

cancer—was non-minor. 33 He also claims the District Court

28

Id.

29

A6.

30

765 F.3d 245 (3d Cir. 2014).

31

A14.

32

The District Court had jurisdiction over Eshleman’s ADA

claim pursuant to 28 U.S.C. § 1331. Pursuant to 28 U.S.C. §

1291, we exercise plenary review of the District Court’s grant

of a motion dismiss. See Finkelman v. Nat. Football League,

877 F.3d 504, 510 (3d Cir. 2017); Pearson v. Sec’y Dep’t of

Corr., 775 F.3d 598, 601 (3d Cir. 2015).

33

Pet. Br. at 6.

8

failed to address whether the impairment that Patrick

Industries perceived—described in Eshleman’s complaint as

“continuing medical issues”—was transitory and minor. 34

We agree that the issue of whether an impairment is “minor”

is a separate and distinct inquiry from whether it is

“transitory.” We will therefore reverse and remand to the

District Court to consider whether Eshleman’s impairment is

minor based upon the allegations in his complaint.

A. Pleading Standard

At the motion to dismiss stage, before the plaintiff has

had the benefit of discovery, all that is required is “a short and

plain statement of the claim showing the pleader is entitled to

relief.” 35 However, the complaint “must contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that

is plausible on its face.’” 36 A claim is plausible when the facts

alleged “allow[] the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.” 37

As noted earlier, the District Court held that Eshleman

pled sufficient facts to state a “regarded as” claim under the

ADA. That determination is not challenged on appeal;

therefore, we address only whether Eshleman’s complaint

sufficiently alleges a regarded-as impairment that is not

transitory and minor.

34

Id. at 7.

35

Fed. R. Civ. P. 8(a)(2).

36

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.

Corp. v. Twombly, 550 U.S. 554, 570 (2007)).

37

Id.; see also Burtch v. Milberg Factors, 662 F.3d 212, 220-

21 (3d Cir. 2011).

9

B. Transitory and Minor

While Eshleman concedes that his actual

impairments—surgery to remove a nodule from his lung and

a severe upper respiratory infection—were transitory because

they lasted less than six months, he argues that the District

Court was nonetheless required to separately evaluate

whether his impairment was “minor.” We agree.

In carving out “transitory and minor” impairments

from “regarded as” claims, the ADA specifically defines

“transitory” as “an impairment with an actual or expected

duration of 6 months or less.” 38 The ADA does not, however,

apply this definition to minor. While the statute is silent on

the meaning of “minor,” the ADA regulations clearly state

that an employer must establish that the perceived impairment

is objectively both transitory and minor. 39 29 C.F.R. §

1630.15(f) states: “To establish this defense, a covered entity

must demonstrate that the impairment is both ‘transitory’ and

‘minor.’ Whether the impairment at issue is or would be

‘transitory and minor’ is to be determined objectively.” 40

The regulations, like the statute, define “transitory” as

“lasting or expected to last six months or less” but similarly

do not extend this definition to “minor.” 41 In addition, the

regulations refer to the time limitation as “[t]he six-month

‘transitory’ part of the ‘transitory and minor’ exception,”

making absolutely clear the distinction between “transitory”

and “minor.” 42 It is therefore clear under the ADA regulations

38

42 U.S.C. § 12102(3)(B).

39

29 C.F.R. § 1630.15(f).

40

Id. (emphasis added).

41

Id. (“For purposes of this section, ‘transitory’ is defined as

lasting or expected to last six months or less.”).

42

29 C.F.R. § 1630.2 (j)(ix).

10

that “transitory” is just one part of the two prong “transitory

and minor” exception.

The Equal Employment Opportunity Commission’s

interpretive guidance provides further justification for treating

transitory and minor as separate and distinct components of

the “transitory and minor” exception. 43 The EEOC once again

states that the “transitory and minor” exception requires a

showing that the impairment is both transitory and minor, and

clarifies that the six-month time limit applies only to the

“transitory” prong of the exception. 44 Furthermore, the EEOC

provides the following illustration distinguishing between

transitory and minor impairments:

For example, an individual who is denied a promotion

because he has a minor back injury would be

“regarded as” an individual with a disability if the back

impairment lasted or was expected to last more than

six months. Although minor, the impairment is not

transitory. 45

43

Interpretive Guidance on Title I of the Americans with

Disabilities Act, 29 C.F.R. Pt. 1630, App. (2016).

44

Id. at App. § 1630.15(f) (“[The ADA] explains that an

individual cannot be ‘regarded as having such an impairment’

if the impairment is both transitory (defined by the ADAAA as

lasting or expected to last less than six months) and minor.”).

In another section, the EEOC explains that “the regulations

provide an exception to coverage under the ‘regarded as’ prong

where the impairment on which a prohibited action is based is

both transitory (having an actual or expected duration of six

months or less) and minor.” Id. at App. § 1630.2(I).

45

Id.

11

According to the EEOC, the minor back injury lasting longer

than six months is not “transitory and minor” because it meets

only the “minor” prong of the exception but is not transitory.

The converse must also be true; an impairment that is

transitory because it lasts less than six months but is

objectively non-minor must also fall outside the “transitory

and minor” exception.

Finally, excluding only impairments that are both

transitory and minor is consistent with Congress’ intent to

expand ADA coverage through the ADA Amendments Act of

2008. 46 As the House Judiciary Committee Report on the

ADAAA explains, when including “regarded as” claims

under the ADA “Congress did not expect or intend that this

would be a difficult standard to meet.” 47 The Report further

explains that the “transitory and minor” exception was

intended to weed out only “claims at the lowest end of the

spectrum of severity,” such as “common ailments like the

cold or flu,” and that the exception “should be construed

narrowly.” 48 Treating transitory and minor as separate and

distinct elements is therefore consistent with the intent to

afford broad coverage under the “regarded as” provision.

The District Court relied heavily on our decision in

Budhun to justify dismissing Eshleman’s claim. However, the

District Court’s analysis improperly conflated “transitory”

and “minor” by mechanically applying the six-month

limitation for “transitory” claims to the definition of

46

H.R. Rep. No. 110–730 pt. 2, at 5 (2008) (“The purpose of

[the ADAA] is to restore protection for the broad range of

individuals with disabilities as originally envisioned by

Congress”).

47

Id. at 17.

48

Id. at 18.

12

“minor.” 49 In Budhun, we held that an employee’s broken

pinky finger, which resulted in her losing the use of three

fingers for two months, was objectively transitory and

minor. 50 Budhun broke the bone connecting her wrist to her

pinky finger and that finger was taped to her adjoining ring

and middle fingers in order to stabilize it. 51 Despite her

broken finger, Budhun insisted that she could nevertheless

still perform her primary work function of typing, just “‘not

as fast as [she] used to . . .’” 52 Her treating physician initially

estimated that Budhun’s “period of incapacity [would be]

‘08/02/10 – 08/16/10’” or fourteen days. 53 Thus, on its face,

given Budhun’s own account of her injury and request for

leave and her physician’s initial estimate of the amount of

time required for full recovery and return to work with no

restrictions, her injury could fairly be deemed to be both

transitory and minor.

Budhun alleged, and her employer perceived, “a

broken bone in her hand and nothing more,” and Budhun

conceded the lost use of her fingers was only temporary. 54

Thus, the temporary nature of a broken pinky finger served as

a proxy for the lack of severity. Although our discussion in

Budhun could be read as suggesting any impairment with an

49

A14 (“[T]he actual or expected duration of Mr. Eshleman’s

impairment lasted less than six months making it transitory and

minor.”); Resp. Br. at 9 (“Transitory and minor impairments

are defined as those with an expected duration of six months or

less.”).

50

Budhun, 765 F.3d at 259-60.

51

Id. at 248.

52

Id.

54

Id. at 249.

54

Id. at 259-60.

13

“actual or expected duration of six months or less” is

necessarily “transitory and minor,” the discussion must be

viewed in the context of Budhun’s objectively non-serious

pinky injury, as well as the allegedly short recovery time.

Accordingly, Budhun should not be interpreted as imposing a

rigid six-month-or-more requirement on establishing

“regarded as” claims.

Consequently, the District Court erred by not

considering whether Eshelman’s impairment was objectively

minor separately from whether it was transitory. The term

“minor” is not defined in statute, and instead of formulating a

broad definition of that term, courts have approached the

issue on a case-by-case basis. Here, the District Court should

have considered such factors as the symptoms and severity of

the impairment, the type of treatment required, the risk

involved, and whether any kind of surgical intervention is

anticipated or necessary—as well as the nature and scope of

any post-operative care. A broken pinky finger, treated with a

splint, is hardly comparable to surgically removing a lung

nodule. The latter involves surgery on a vital organ (which is,

by definition, an invasive procedure) and all the risks and

post-operative care this inevitably entails. And that is true

even if the impairment has an anticipated recovery time of

two months and is therefore “transitory.” Because even

minimally invasive lung surgery is still thoracic surgery, more

than likely requiring inpatient care, it is plausible that

Eshleman’s lung surgery was non-minor.

Moreover, Eshleman’s case is further distinguishable

from Budhun, because there it was “abundantly clear that [the

employer] considered Budhun to have a broken bone in her

hand and nothing more.” 55 In contrast, Eshleman alleges that

55

Id. at 259.

14

Patrick Industries perceived his recent medical issues to

signify an on-going health condition. 56 We noted in Budhun

that “[n]owhere in the complaint does Budhun allege that [her

employer] thought her injury was anything other than a

broken fifth metacarpal.” 57 Eshleman’s complaint, on the

other hand, alleges that it was the lung surgery coupled with a

severe respiratory infection – close-in-time ailments affecting

the same system of the body – that led to his employer to

perceive him as disabled. That situation is unlike the

employer in Budhun, who thought the employee would be

fully recovered in less than two months. 58 We therefore

disagree with the District Court’s contention that “nowhere

does Mr. Eshleman plead Patrick Industries understood his

impairment to be anything other than a one-time surgery . .

.” 59 Eshleman’s complaint contains plausible allegations that

Patrick Industries regarded his series of recent medically-

related absences as signs of a continuing medical condition

that essentially rendered him damaged goods and therefore

unemployable. The District Court failed to evaluate whether

56

A28.

57

Budhun, 765 F.3d at 260.

58

In disagreeing with this statement, we do not suggest that

“a one-time surgery” is inevitably minor. The severity of the

underlying disability cannot depend upon the frequency of the

required surgical intervention. We do not need expert

testimony to appreciate that a very serious medical condition

may nevertheless require only a single surgical procedure.

Organ transplants are, perhaps, the best example of this.

59

A13.

15

Eshleman’s perceived chronic medical condition, distinct

from his lung surgery, was objectively transitory and minor. 60

Patrick Industries points to several instances where

district courts have found that impairments allegedly similar

to Eshleman’s lung surgery were “transitory and minor,” none

of which we find persuasive. 61 Not only are these unreported

and mainly out-of-Circuit cases not binding on this Court,

they also largely fail to make distinct findings about whether

the impairments are both “transitory” and “minor.” 62 In

60

See 29 C.F.R. Pt. 1630, App. at § 1630.2(I) (2016) (“[A]n

employer that terminated an employee with an objectively

‘transitory and minor’ hand wound, mistakenly believing it to

be symptomatic of HIV infection, will nevertheless have

‘regarded’ the employee as an individual with a disability,

since the covered entity took a prohibited employment action

based on a perceived impairment (HIV infection) that is not

‘transitory and minor.’); see also H.R. Rep. No. 110–730 Pt. 2,

at 17 (2008) (“This third, ‘regarded as,’ prong was meant to

express Congress’s understanding that unfounded concerns,

mistaken beliefs, fear, or prejudice about disabilities are just as

disabling as actual impairments and its corresponding desire to

prohibit discrimination founded on such concerns or fears.”).

61

Resp. Br. at 19-20.

62

Bachir v. Suburban Collection Imported Cars, LLC, No.

17-13323, 2018 WL 4637324, at *7 (E.D. Mich. Sept. 27,

2018) (“To qualify as a disability under the regarded-as-

disabled prong of the ADA, a condition must last more than

six months . . . Plaintiff has not alleged, much less produced

evidence sufficient to show, that the mass on his throat

afflicted him for more than six months.”); Santiago v.

Urology Grp. of Princeton, P.A., No. 3:17-CV-4927, 2018

WL 3472629, at *3 (D. N.J. July 19, 2018) (finding that

16

contrast, the Court of Appeals for the Seventh Circuit in Silk

v. Board of Trustees, Moraine Valley Community College

made clear that the limitation on impairments lasting or

expected to last less than six months applies to “transitory,”

whereas the statute leaves “minor” undefined. 63 There, the

Seventh Circuit found that “a heart condition severe enough

to require triple bypass surgery” was not on its face both

transitory and minor. 64 Consistent with the language and

fifteen weeks of medical leave for spinal surgery “falls short

of the six months necessary to show an injury is not

objectively ‘transitory and minor’ . . .”); Weisel v. Stericycle

Commc'ns Sols., No. 3:13-CV-3003, 2015 WL 390954, at *10

(M.D. Pa. Jan. 28, 2015) (“Plaintiff's release to return to work

two weeks after surgery is evidence that her condition was

minor and of limited duration.”); Butler v. Advance/Newhouse

P'ship, No. 6:11-CV-1958-ORL-28GJK, 2013 WL 1233002,

at *8 (M.D. Fla. Mar. 26, 2013) (finding that back surgery

and recovery time is “transitory and minor” because “[t]here

is no evidence that anyone . . . expected the duration of any

impairment to be more than six months . . . ”); Neumann v.

Plastipak Packaging, Inc., No. 1:11-CV-522, 2011 WL

5360705, at *11 (N.D. Ohio Oct. 31, 2011) (finding that

surgery for back and leg pain is “transitory and minor”

because plaintiff “has not offered any evidence to indicate

that the actual or expected duration of his surgery

recuperation was greater than sixth months . . .”).

63

795 F.3d 698, 706 (7th Cir. 2015).

64

Id. at 707-08; see also Mesa v. City of San Antonio, No.

SA-17-CV-654-XR, 2018 WL 3946549, at *12, *18 (W.D.

Tex. Aug. 16, 2018) (explaining that “[t]he regulations and

EEOC guidance indicate that ‘transitory’ and ‘minor’ are

separate and distinct requirements” and holding that “[e]ven

17

intent of the ADA and its implementing regulations, the Court

treated “transitory” and “minor” as separate and distinct

inquiries required to meet the “transitory and minor”

exception to “regarded as” claims. 65

assuming that [plaintiff]'s perceived shoulder injury was

transitory, [defendant] has not conclusively shown that it was

minor” where the injury required transport to the emergency

room by ambulance, treatment with prescription pain

medications, and injury-related work restrictions on climbing,

reaching, and lifting); Bush v. Donahoe, 964 F. Supp. 2d 401,

422-23 (W.D. Pa. 2013) (evaluating the treatment and

symptoms, ability to perform work duties, and restrictions

and limitations on activity to determine a sprained ankle/foot

is objectively minor because, although a sprained ankle/foot

requiring a walking cast is transitory because it heals in less

than six months, “[t]hat does not end the inquiry. . . . as

Defendant must also show that [plaintiff’s] impairment was

minor.”); Davis v. Vermont, Dep’t of Corr., 868 F. Supp. 2d

313, 327 (D. Vt. 2012) (“In addition, Defendant is unable to

show from the face of the Second Amended Complaint that

the impairment was minor. Accordingly, Defendant at this

stage of the case cannot sustain the defense that the perceived

impairment is both transitory and minor.”); Mayorga v.

Alorica, Inc., No. 12-21578-CIV, 2012 WL 3043021, at *9

(S.D. Fla. July 25, 2012) (declining to dismiss plaintiff’s

claim based on pregnancy complications as “transitory and

minor” because whether the impairment “was ‘minor’

presents a . . . question of fact that is not properly resolved on

a motion to dismiss. It cannot be determined from the face of

the Complaint, nor the record as it currently stands, whether

[plaintiff]’s impairment was minor.”).

65

Silk, 795 F.3d at 706-07.

18

Here, especially at the pleading stage, Eshleman’s

allegations, which are premised not only on the lung surgery

but also on a close-in-time subsequent ailment affecting the

same system of the body, plausibly plead a non-minor

perceived impairment.

III. CONCLUSION

For the foregoing reasons, we will reverse District

Court’s judgment dismissing Eshleman’s regarded as claim

under the ADA and remand for further proceedings consistent

with this opinion.

19