Petition for Writ of Certiorari — United States Bancorp v. Fraser

No. __ 031041 JAN 1° 2004

OFFICE OF THE CLEAK

IN THE

Supreme Court of the Anited States

UNITED STATES BANCORP, a federal insured banking

corporation; UNITED STATES BANK NATIONAL ASSOC.,

a federal insured banking corporation,

Petitioners,

REBECCA ANN FRASER,

Respondent.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

JANINE C. BLATT

Counsel of Record

JEFFREY J. DRUCKMAN

DRUCKMAN & ASSOCIATES, P.C.

222 S.W. Columbia Street, Suite 1670

Portland, Oregon 97201

(503) 241-5033

Attorneys for Petitioners

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 — WASHINGTON, D.C. 20001

QUESTION PRESENTED

The Americans with Disabilities Act (“ADA”), 42 U.S.C.

§ 12101 et seg, provides protection for employees whose

impairments “substantially limit” one or more major life

activities. Several circuit courts of appeal recently have held

that “eating” is a major life activity under the ADA, but have

failed to analyze properly what the meaning of eating as an

activity is.

The question presented is whether a diabetic plaintiff who

is able to engage in the physical act of eating; i.e. ingesting,

chewing, and swallowing food, can establish that she is

substantially limited in the major life activity of eating.

(1)

—

ii

STATEMENT PURSUANT TO RULE 29.6

Petitioner U.S. Bancorp states that it has no corporate

parents and that no prblicly held company owns 10% or more

of its stock.

Petitioner U.S. Bank National Association states that it is a

wholly owned subsidiary of USB Holdings, Inc., which is a

wholly owned subsidiary of U.S. Bancorp.

TABLE OF CONTENTS

a

STATEMENT PURSUANT TO RULE 29.6................

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STATUTORY PROVISIONS AND REGULATIONS

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REASONS FOR GRANTING THE WRIT ..................

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APPENDICES

APPENDIX A—Opinion of the United States Court

of Appeals for the Ninth Circuit Dated and Decided

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APPENDIX B—Opinion and Order of the United

States District Court for the District of Oregon

Dated and Decided September 28, 2001 ...................

APPENDIX C—Order of the United States Court of

Appeals for the Ninth Circuit Dated and Filed

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23a

_—

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TABLE OF CITED AUTHORITIES

CASES Page

Branham v. O'Neill, 2003 U.S. Dist. LEXIS

Beate PUB GBD, WOE, FINS vices vccsseccosinivesncensasees 8

Furnish v. SVI Systems, 270 F.3d 445 (7th Cir.

EP ilicievisnchaiccciaendbinbeate ea tatsnitsieciaaaiebian nates 8

Kammueller v. Loomis, Fargo & Co., 285 F.

Supp. 2d 1200 (D. Minn. 2003)............ccceeee 9

Land v. Baptist Medical Center, 164 F.3d 423

A, nee es ee ROE 3, 6,9

Lawson v. CSX Transportation, Inc., 245 F.3d

OM PO Wl BED cercotharaticesssasstintiintascscesdagtns 6

Sutton V. United Air Lines, Inc., 527 U.S. 471,

Pe ae SA Re CR iiasccisoptisunvnesscmeinesneenannees Oe

Toyota Motor Manufacturing Kentucky, Inc. v.

Williams, 534 U.S. 184, 122 S. Ct. 681 (2002). 8

REGULATIONS

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29 C.F.R. § 1630.2(j)(1) (ii) cesseescsessssesssessseesseesnees 6

29 C.F.R. § 1630.2 (j)(1) ccesseccseccssescssessseessessseessees 2

U.S. CODE

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82 UBC. § UQU82 Ga) occ ccsccscscscvccorcssnessrecreesnecavsees 2

IN THE

Supreme Court of the Anited States

No.

UNITED STATES BANCORP, a federal insured banking

corporation; UNITED STATES BANK NATIONAL ASSOC.,

a federal insured banking corporation,

Petitioners,

V.

REBECCA ANN FRASER,

Respondent.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

Petitioners respectfully petition for a writ of certiorari to

review the judgment of the United States Court of Appeals

for the Ninth Circuit in this case.

OPINIONS BELOW

The district court’s opinion (per Jones, D.J.) granting

petitioners’ summary judgment motion (Appendix (“App’’) B,

23a-35a) is published at 168 F. Supp. 2d 1188. The court of

appeals’ opinion (per Wallace, J., joined by Lay, J., dissent by

Tallman, J.), affirming in part and reversing in part (App. A,

la-22a), is published at 342 F.3d 1032. The court of appeals’

order denying rehearing and rehearing en banc (App. C, 36a)

is not published.

2

STATEMENT OF JURISDICTION

The court of appeals entered its opinion and order on

September 8, 2003, and denied rehearing and rehearing en

banc on October 20, 2003. Petitioners invoke this court’s

jurisdiction under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS AND

REGULATIONS INVOLVED ~

42 U.S.C. § 12112 (a) provides that “No 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. § 12102(2)(A) says that “[t]he

term ‘disability’ means * * * a physical or mental impairment

that substantially limits one or more of the major life

activities of such individual.” 29 C.F.R. § 1630.2(i) states

that “Major Life Activities means functions such as caring for

oneself, performing manual tasks, walking, seeing, hearing,

speaking, breathing, learning, and working.” 29 C.F.R.

§ 1630.2 (j)(i) provides that “[t]he term substantially limits

means: (i) Unable to perform a major life activity that the

average person in the general population can perform; or

(ii) Significantly restricted as to the condition, manner or

duration under which an individual can perform a particular

major life activity as compared to the condition, manner, or

duration under which the average person in the general

population can perform that same major life activity.”

STATEMENT OF THE CASE

This case involves the meaning of “eating” as an emerging

major life activity under the Americans with Disabilities Act

(‘ADA”). The district court held that a diabetic plaintiff

failed to establish a substantial limitation on the major life

3

activity of eating, among other major life activities, by offer-

ing “generalities and speculation concerning how she might

have been affected if her blood glucose level was not well-

controlled.” 168 F. Supp. 2d at 1194 (emphasis in original).

In a decision by a split panel, the court of appeals reversed

this part of the district court’s judgment, holding that a

diabetic plaintiff can establish a substantial limitation on the

major life activity of eating by showing that she would suffer

serious complications from the failure to follow a sensible,

physician-prescribed diet, monitor blood sugar levels, and

administer insulin. Judge Tallman dissented from this part of

the panel’s decision, noting:

“It]o ‘eat’ means ‘to take in through the mouth as

food: ingest, chew, swallow in turn.” Webster's New

Collegiate Dictionary 355 (1979). ‘Nothing in_ this

record suggests that [plaintiff] has any difficulty

ingesting food, chewing food, or swallowing food. It

follows that she is not substantially limited in the major

life activity of eating.” 342 F.3d at 1045.

The Ninth Circuit’s holding merits immediate review

because it conflicts with Sutton v. United Air Lines, Inc., 527

U.S. 471, 119 S. Ct. 2139 (1999) and Land v. Baptist Medical

Center, 164 F.3d 423 (8th Cir. 1999), and because the

meaning of “eating” as an emerging major life activity under

the ADA is an important question of federal law that should

be settled by this Court to prevent inconsistent application

among the circuit courts of appeal.

Respondent (“Fraser”) is an insulin dependent diabetic.

Fraser does not suffer from any of the severe complications of

diabetes, such as kidney failure, blindness, loss of limbs due

to circulation problems, or vascular cardiac disease. Fraser

can work full-time, walk, see, exercise, think, communicate,

and care for herself and her children. As an insulin dependent

diabetic, she must monitor her blood glucose levels and inject

insulin three to four times per day prior to eating meals. This

4

process takes no more than five minutes Or a total of 20

minutes each day. Fraser also must eat a healthful, nutritious

diet. Her diet is restricted only by her physician’s recom-

mendation that she avoid simple carbohydrates such as sugary

cereals. Fraser’s physician recommends that she eat three

meals and a few healthy snacks each day, depending on her

activity and insulin levels. Her diabetes does not restrict her

ability to engage in the act of eating. To the contrary, Fraser

is required to eat regularly and she presented no evidence that

she could not do so. Her dietary restrictions are not severe.

Fraser herself testified that she can basically consume

anything she wants, including alcohol and candy. Fraser's

physician testified that when Fraser adheres to her diet

and treatment program, she can control her blood sugar

levels. When her blood sugar levels are within acceptable

limits, Fraser’s ability to perform major life activities is

unaffected. Fraser testified that she generally adhered to her

treatment program.

Petitioners moved for summary judgment on the grounds

that Fraser is not disabled because her diabetes does not

substantially limit a major life activity. Opposing the motion,

Fraser asserted substantial limitations in nine major life

activities when her blood sugar levels are too high or too low:

caring for herself; eating; metabolizing food; sleeping;

learning; seeing; standing; walking; and performing manual

tasks. Fraser failed, however, to provide the district court

with specific evidence of the frequency of excessively high or

low blood sugar levels and the limitations she actually

experienced when these conditions occurred. Indeed, Fraser

failed to produce a single medical opinion that her diabetes

substantially limited a major life activity. Granting peti-

tioners’ summary judgment, the district court noted:

“In response to the bank’s motion, plaintiff offers

generalities and speculation concerning how she might

have been affected if her blood glucose level was not

5

well-controlled, but has failed to produce specific,

admissible evidence that she was, in fact, substantially

limited during the relevant period of time. While it

appears from the evidence that diabetes has an adverse

effect on plaintiff, no evidence demonstrates or even

suggests that diabetes substantially limited her ability to

care for herself, perform manual tasks, walk, see, talk,

breathe, learn, work, or engage in similar activities.”

“Plaintiff also proposes that the effect of diabetes on

her endocrine system function and ability to metabolize

food qualifies as a substantial limitation on a ‘major life

activity.’ In the absence of a statute, administrative rule,

or Ninth Circuit precedent supporting such a theory, |

decline to accept that in crafting the language of the

ADA, Congress intended the functioning of a person’s

internal bodily systems, without more, to qualify as a

‘major life activity.” 168 F. Supp. 2d at 1194 (emphasis

in original).

Fraser appealed, limiting the major life activities at issue

on appeal to eating, caring for herself, and thinking and

communicating. The Ninth Circuit affirmed the district court

judgment on Fraser’s claims that her diabetes substantially

limits her ability to care for herself or to think and

communicate. The Ninth Circuit reversed with respect to the

major life activity of eating in an opinion noteworthy for its

fundamental inconsistency with Sutton. In so doing, it

established this legal principle: an ADA plaintiff who has no

difficulty eating, but who must eat regular, healthy meals and

follow a typical diabetic treatment program, is substantially

limited in the major life activity of eating because if she

failed to follow this treatment program, she would suffer

temporary, but potentially dire, complications. The holding

has serious implications for future ADA cases. Indeed, the

Ninth Circuit suggests that peanut allergies might qualify as a

disability under the ADA. 342 F.3d at 1040.

6

The Ninth Circuit’s decision goes astray by focusing on

possible, temporary consequences should Fraser hypotheti-

cally not have access to food and the potential in general for

all insulin-dependent diabetics to have temporary insulin

| reactions despite adherence to their treatment programs. 342

F.3d at 1041-42. The Seventh Circuit Court of Appeals made

the same analytical error in Lawson v. CSX Transportation,

Inc., 245 F.3d 916 (7th Cir. 2001), upon which the panel

majority relies. This approach is incorrect under the ADA. It

is the activity of eating that must be substantially limited by

Fraser’s diabetes, not the functioning of her internal bodily

systems should she fail to eat or the potential in general for

diabetics to suffer insulin reactions despite adherence to their

treatment programs. See 29 C.F.R. § 1630.2G)((1) (ii) (sub-

stantially limited means that the person must be significantly

restricted in the condition, manner, or duration of the

performance of the activity at issue). None of the hypo-

thetical, generalized consequences relied on by the panel

majority has anything to do with Fraser’s physical ability to

eat food. Dissenting from this part of the majority’s decision,

Judge Tallman correctly focused on the performance of the

activity of eating; it involves ingesting, chewing, and

swallowing food. 342 F.3d at 1045. As Judge Tallman

correctly concluded, Fraser has no difficulty doing any of

these things.

On September 22, 2003, petitioners’ petitioned for rehear-

ing and rehearing en banc. On October 20, 2003, the Ninth

Circuit denied rehearing. This petition for writ of certiorari

followed.

REASONS FOR GRANTING THE WRIT

The petition should be granted because the Ninth Circuit’s

decision conflicts with this Court’s decision in Sutton and the

Eighth Circuit’s decision in Land v. Baptist Medical Center,

164 F.3d 423 (8th Cir. 1999), creating the potential for

inconsistent application among the circuit courts of appeal.

7

In Sutton, this Court held that mitigating measures must be

taken into consideration when determining “whether the

limitations an individual with an impairment actually faces

are in fact substantially limiting.” 527 U.S. at 488. Sutton

requires ADA plaintiffs to provide specific evidence of how

their impairment limits their daily activities. The decision

conflicts with Sutton in two important ways. First, the

decision, as a practical matter, confers disability status on all

insulin dependent diabetics. The Ninth Circuit reached its

conclusion in part by focusing on the potential and

hypothetical consequences of Fraser’s failure to eat or to

follow her treatment regimen. 342 F.3d at 1041-42. Fraser's

diet and treatment program is indistinguishable from that

generally prescribed for all insulin-dependent diabetics and

all insulin-dependent diabetics risk severe consequences if

they fail to follow their programs. Holding all diabetics to be

disabled under the ADA based on what could happen should

the diabetic fail to do as medically directed is the exact result

that Sutton instructed lower courts to avoid:

“(T]he approach adopted vy the agency guidelines—

that persons are to be evaluated in their hypothetical

uncorrected state—-is an impermissible interpretation of

the ADA.” /d. at 482.

* * *

“For instance, under this view, courts would almost

certainly find all diabetics to be disabled, because if they

failed to monitor their blood sugar levels and administer

insulin, they would almost certainly be substantially

limited in one or more major life activities. A diabetic

whose illness does not impair his or her daily activities

would therefore be considered disabled simply because

he or she has diabetes. * * * This is contrary to both the

letter and spirit of the ADA.” 527 U.S. at 483-84.

Second, the Ninth Circuit erred in eschewing the indi-

vidualized inquiry mandated by Sutton by focusing on the

——————

| |

general risk that diabetics who follow their programs may

have temporary insulin reactions:

“The definition of disability also requires that

disabilities be evaluated ‘with respect to an individual’

and be determined based on whether an impairment

substantially limits the ‘major life activities of such

individual.’ § 12102(2). Thus, whether a person has a

disability under the ADA is an individualized inquiry.”

Id. at 483 (other citations omitted).

Most significant, none of the temporary, albeit potentially

dire, consequences identified by the Ninth Circuit bears any

relation to Fraser’s physical ability to engage in the activity of

eating. Judge Tallman’s dissenting approach to the meaning

of eating is the correct analysis under Sutton. Sutton requires

courts to focus on activity limitations and not the functioning

of internal bodily organs characteristic of the particular

impairment. /d. at 486-87. The Ninth Circuit should have

examined actual limitations on this plaintiff's doing of the

major life activity, not the potential consequences of a

hypothetical failure to eat or follow a prescribed treatment

program. See also Toyota Motor Manufacturing Kentucky,

Inc. v. Williams, 534 U.S. 184, 122 S. Ct. 681, 692 (2002) (it

is the doing of an activity of central importance that must be

severely restricted). The inability of Fraser’s internal bodily

systems to regulate blood sugar levels and metabolize food

without insulin injections is a functional characteristic of her

diabetes; it is not an activity under the ADA. See Furnish v.

SVI Systems, 270 F.3d 445, 449-50 (7th Cir. 2001) (impaired

liver function is not an activity under the ADA; it is a

characteristic of the underlying impairment); Branham v.

O'Neill, 2003 U.S. Dist. LEXIS 22201 *18 (S.D. Ind. 2003)

(food metabolization is not an activity under the ADA).

Applying the analysis required by Sutton, there is no evidence

in the record to suggest that Fraser cannot engage in, or is

significantly restricted in, the physical act of eating.

a

9

The Eighth Circuit Court of Appeals has adopted an

approach to the definition of eating consistent with Judge

Tallman’s dissent. In Land v. Baptist Medical Center, 164

F.3d 423 (8th Cir. 1999), the court declined to find a

substantial limitation on eating where a plaintiff with a severe

and potentially life threatening peanut allergy failed to

present evidence of a physical inability to consume food. The

Land plaintiff was unable to eat certain foods without risk of

death. Like Fraser, the Land plaintiff had to have medicine

readily available in the event she suffered a potentially life

threatening reaction. However, nothing in the record

suggested that the plaintiff's “physical ability to eat is in any

way restricted.” Jd. at 425; see also Kammueller v. Loomis,

Fargo & Co., 285 F. Supp. 2d 1200 (D. Minn. 2003) (holding

that plaintiff's end stage renal failure is not a substantial

limitation on eating because plaintiff's physical ability to eat

is not restricted). As in Land, there is no evidence in the

record that Fraser’s physical ability to eat food is restricted in

any significant manner. In direct conflict with Land, the

panel majority suggests that under the functional analytical

framework it has adopted, a peanut allergy could qualify as a

disability under the ADA. 342 F.3d at 1040. Review should

be granted to prevent circuit courts of appeal from applying

inconsistent interpretations of eating as a major life activity

under the ADA.

The emergent major life activity of eating should not serve

as the residual method through which all insulin-dependent

diabetics who are unable to show a substantial limitation of

any other major life activity, and whose daily activities are

otherwise unaffected, are able to establish a disability under

the ADA. Nor should it provide a vehicle for persons with

food allergies or dietary restrictions to qualify themselves as

disabled under the ADA. Review by this Court is needed to

avoid this result.

10

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

JANINE C. BLATT

Counsel of Record

JEFFREY J. DRUCKMAN

DRUCKMAN & ASSOCIATES, P.C.

222 S.W. Columbia Street, Suite 1670

Portland, Oregon 97201

(503) 241-5033

Attorneys for Petitioners

APPENDICES

la

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

[Filed September 8, 2003]

No. 01-36018

D.C. No. CV-00-00543-JO

REBECCA ANN FRASER,

Plaintiff-Appellant,

V.

CAROL GOODALE; JEFF ERWIN; TERRI MCKINNIS; UNITED

STATES BANCORP, a federal insured banking corporation;

UNITED STATES BANK NATIONAL ASSOC., a federal insured

banking corporation,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Oregon

Robert E. Jones, District Judge, Presiding

Argued and Submitted

May 7, 2003—Portland, Oregon

Before: Donald P. Lay, J. Clifford Wallace, and Richard

C. Tallman, Circuit Judges. .

* Honorable Donald P. Lay, Senior United States Circuit Judge for the Eighth

Circuit, sitting by designation.

2a

OPINION

WALLACE, Senior Circuit Judge:

Fraser‘sued her former employer, United States Bancorp

(Bank) under the Americans with Disabilities Act (ADA) and

Or. Rev. Stat. § 659.436, contending the Bank discriminated

against her because of her diabetes. She appeals from the

Bank’s summary judgement, arguing the district court erred

in concluding that she failed to demonstrate a genuine issue

of material fact as to whether her diabetes substantially

limited her ability to eat, care for herself, think, and

communicate. The district court had jurisdiction under 28

U.S.C. §§ 1331 and 1367. We have jurisdiction over this

timely filed appeal pursuant to 28 U.S.C. § 1291. We affirm

in part and reverse and remand in part.

I

Fraser suffers from type I insulin-dependent diabetes with

recurring acidosis complicated by pulmonary impairment.

Her diabetes is severe and life-threatening. Her diabetes is

“brittle,” meaning that her blood sugar levels are very

difficult to control because her glucose levels tend to swing

fairly quickly high or low. Her physician, Dr. Lockwood,

explained that at the time of the Bank’s allegedly unlawful

conduct, her diabetes required four or more daily blood sugar

tests (which each take several minutes to complete), and

multiple injections of varying amounts and types of insulin or

glucagon. The amount or type of insulin she needs depends

on how much she ate, how active she was that day, her blood

pressure, kidney function, infections, circulation, etc. This

requires her to monitor carefully her day’s diet, activities, and

other similar factors. If she fails, she will find herself in a life-

threatening situation. Unlike the average person, Fraser states

that if she gets a scrape, “it can lead to gangrene in nothing

flat because of the severity of [her] diabetes.” In short,

Ee a |

3a

viewing the evidence in a light most favorable to Fraser,

Fraser suffers from a very onerous and life-threatening form

of diabetes.

Beginning in June 1998, Fraser worked as a Senior

Account Specialist for the Bank. In mid-November of 1998,

Fraser’s supervisor, Jeff Erwin, notified Fraser that she may

not eat at her desk. Later, Fraser recorded her blood sugar as

“dangerously low 46.” Her normal range is typically between

80 and 180. Minutes later, she became disoriented as her

blood sugar dropped further to 34. She had food in her desk,

but because of Erwin’s earlier admonition, she first explained

to him her immediate situation and sought his permission

before eating. Erwin told her to come back when she had an

intelligent question to ask. Fraser became even more

disoriented and her memory was so impaired that she could

not remember how to use the telephone. She purchased candy

from a vending machine, but her glucagon levels were so low

that the candy did not help enough. She again sought Erwin’s

permission to do something about her current situation, but to

no avail. Fraser eventually passed out in the lobby of the

Bank building. With her husband’s and a co-worker’s

assistance, she finally arrived home and injected glucagon

until her blood sugar came back to a normal level.

In November 1998, Fraser wrote to Erwin’s supervisor, Joe

Ledbetter, complaining about Erwin’s actions. Ledbetter

indicated that he was investigating her complaint. Ledbetter

assured Fraser that Erwin “would be dealt with,” but so far as

Fraser is aware, Erwin was never disciplined. On March 12,

1999, the Bank terminated her employment. Fraser brought

this action, alleging that from November 20, 1998, through

March 3, 1999, she was subjected to retaliation for filing her

complaint, including harassment, a change of assignment, a

change of workstation, increased scrutiny, failure to pay

benefits, threats to sue, contrived poor performance evalua-

tions, and a host of other employment actions. Fraser sued

4a

for failure to make reasonable accommodations, 42 U.S.C.

§ 12111(9), retaliation for exercising her rights, /d.

§ 12203(b), discriminatory discharge, Id. § 12112(a), dis-

ability discrimination under state law, Or. Rev. Stat.

§ 659.436, and intentional infliction of emotional distress.

The Bank moved for summary judgment on all claims.

Fraser voluntarily withdrew her emotional distress claim. The

Bank argued that Fraser did not present a genuine issue of

material fact as to whether she was disabled under the ADA.

The district court agreed, concluding that Fraser gave only

“generalities and speculation concerning how she might have

been affected if her blood glucose level was not well

controlled, but has failed to produce specific, admissible

evidence that she was, in fact, substantially limited during the

relevant period of time.” Fraser v. U.S. Bancorp, 168 F.

Supp. 2d 1188, 1194 (D.Or. 2001). Fraser appeals, contend-

ing that she was disabled. She argues that even if she was not

disabled, her retaliation claim may proceed because she has a

good faith belief that she is disabled.

I].

We must first assure ourselves that we do not erroneously

rely on evidence outside the summary judgment record. In

reviewing a summary judgment, “we are limited to the . . .

evidence available to the court at the time the motion was

made.” Hopkins v. Dow Corning Corp., 33 F.3d 1116, 1121

(9th Cir. 1994); Schneider v. County of San Diego, 28 F.3d

89, 92 (9th Cir. 1994).

The Bank argues that Fraser cites to material outside the

summary judgment record, namely, pages 10 and 99 of Dr.

Lockwood’s deposition, and pages 67 and 159 her own depo-

sition. We have not found these pages in the summary

judgment record, and therefore do not consider them in our

review.

a

5a

The Bank further argues that Fraser’s claim that she is a

brittle diabetic cannot be considered on appeal because it is

based on an excerpt to her deposition which the Bank

contends is not part of the record. The district court

concluded that Fraser demonstrated sufficient evidence on the

summary judgment record that she. is a_ brittle diabetic.

Fraser, 168 F.Supp.2d at 1191.

In her deposition, Fraser relied on her diary, which was

attached to her deposition. The contents of the diary, if

admissible, may be relied upon in the summary judgment

proceeding. Fed. R. Civ. P. 56(e); Orr v. Bank of Am., 285

F.3d 764, 773 (9th Cir. 2002) (“A trial court can [ ] consider

[only] admissible evidence in ruling on a motion for summary

judgment.”). The Bank argues that because the diary is

inadmissible hearsay, she may not rely on it to create a

genuine issue of material fact. The Bank asked the district

court to strike the diary from the record, but the district court

did not rule on this request.

Fraser argues that the Bank’s request to strike was not a

proper formal motion to strike under the local rules for the

District of Oregon. Fraser would have us conclude that the

Bank waived its hearsay objection to the diary. However, the

Bank’s objection was clear, specific, and timely made to the

district court in its reply motion for summary judgment. The

Bank’s evidentiary objection was preserved. Pfingston v.

Ronan Eng'g Co., 284 F.3d 999, 1003 (9th Cir. 2002) (“In

order to preserve a hearsay objection, a party must either

move to strike the affidavit or otherwise lodge an objection

with the district court’); Perez v. Volvo Car Co., 247 F.3d

303, 314-15 (1st Cir. 2001) (formal motions to strike unnec-

essary to preserve an argument that an affidavit failed Rule

56(e)’s requirements).

iia:

6a

Nonetheless, we need not decide whether the diary itself is

admissible. It would be sufficient if the contents of the diary

are admissible at trial, even if the diary itself may be

inadmissible. At the summary judgment stage, we do not

focus on the admissibility of the evidence’s form. We instead

focus on the admissibility of its contents. Block v. City of Los

Angeles, 253 F.3d 410, 418-19 (9th Cir. 2001) (“To survive

summary judgment, a party does not necessarily have to

produce evidence in a form that would be admissible at trial,

as long as the party satisfies the requirements of Federal

Rules of Civil Procedure 56.”); Fed. Deposit Ins.\ Corp. v.

N.H. Ins. Co., 953 F.2d 478, 485 (9th Cir. 1991) (“the

nonmoving party need not produce evidence in a form that

would be admissible at trial in order to avoid smmary

judgment.”) (internal quotation marks and citation omitted).

The contents of the diary are mere recitations of \events

within Fraser’s personal knowledge and, depending on the

circumstances, could be admitted into evidence at trial in a

variety of ways. Fraser could testify to all the relevant

portions of the diary from her personal knowledge. Fed. R.

Evid. 602. If she forgets the exact dates or the details of the

event, she may be able to use the diary to refresh her

recollection. Fed. R. Evid. 612. Indeed, even inadmissible

evidence may be used to refresh a witness’s recollection.

United States v. Frederick, 78 F.3d 1370, 1376 (9th Cir.

1996); United States v. Weller, 238 F.3d 1215, 1221 (10th

Cir. 2001); United States v. Muhammad, 120 F.3d 688, 699

(7th Cir. 1997). If the diary fails to refresh her recollection,

she might still be able to read the diary into evidence as a

recorded recollection under Fed. R. Evid. 803(5). |

Because the diary’s contents could be presented in an

admissible form at trial, we may consider the diary’ s contents

in the Bank’s summary judgment motion. Accord Hughes v.

United States, 953 F.2d 531, 543 (9th Cir. 1992) (litigation

adviser’s affidavit may be considered on summary judgment

Ta

despite hearsay and best evidence rule objections; the facts

underlying the affidavit are of the type that would be

admissible as evidence even though the affidavit itself might

not be admissible); J.F. Feeser, Inc. v. Serv-A-Portion, Inc.,

909 F.2d 1524, 1542 (3d Cir. 1990) (hearsay evidence

produced in an affidavit may be considered on summary

judgment if the declarant could later present the evidence

through direct testimony); Williams v. Borough of W.

Chester, 891 F.2d 458, 465 n.12 (3d Cir. 1989) (“hearsay

evidence produced in an affidavit opposing summary judg-

ment may be considered if the out of court deciarant could

later present that evidence through direct testimony, i.e. in a

form that would be admissible at trial.””) (internal quotation

marks omitted).

In holding that the contents of the diary may be considered

at the summary judgment stage, we make no ruling on the

admissibility of the diary. We leave this determination to the

district court if Fraser seeks to admit the diary itself into

evidence.

IIT.

Moving to the merits, we consider Fraser’s claims that the

Bank failed to make reasonable accommodations, in violation

of 42 U.S.C. § 12111(9), retaliated against her for exercising

her rights, in violation of 42 U.S.C. § 12203(b), wrongfully

terminated her employment, in violation of 42 U.S.C. §

12112(a), and discriminated against her based on_ her

disability, in violation of Or. Rev. Stat. § 659.436. “TWe

interpret Or. Rev. Stat. § 659.436 consistently with the

ADA.” Hutton v. Elf Atochem N. Am., 273 F.3d 884, 891 n.1

(9th Cir. 2001). The district court held that Fraser is not

disabled under the ADA, and therefore dismissed her federal

and state discrimination claims, and dismissed her action.

Fraser’s argument on appeal is that she demonstrated a

genuine issue of material fact as to whether she is disabled

under the ADA. We review the district court’s summary

a

8a

judgment de novo, and we view the facts in a light most

favorable to Fraser. Kaplan v. City of N. Las Vegas, 323 F.3d

1226, 1229 (9th Cir. 2003).

A.

The ADA defines a disability as:

(A) a physical or mental impairment that substantially

limits one or more of the major life activities of such

individual;

(B) arecord of such an impairment; or

(C) being regarded as having such an impairment.

42 U.S.C. § 12102(2). Like the parties to this appeal, we

consider only subsection (A). Our consideration involves

three inquiries: (1) we determine whether Fraser’s diabetes is

a physical impairment, (2) we identify the life activity on

which Fraser relies, and we determine whether this activity is

a major life activity, and (3) we determine whether the

impairment substantially limits the major life activity.

Bragdon v. Abbott, 524 U.S. 624, 631 (1998).

(1).

We have little difficulty in concluding that diabetes is a

“physical impairment” under the ADA. While the persuasive

authority of Equal Employment Opportunity Commission

(EEOC) regulations such as 28 C.F.R. § 1630.2 remains

unclear, we give weight ‘to the federal regulations defining

“disability” under the pre-ADA Rehabilitation Act of 1973

such as 45 C.F.R. § 84.3. Toyota Motor Mfg., Ky. Inc.

v. Williams, 534 U.S.184, 194 (2002); Bragdon, 524 USS.

at 632. Like the parties, we assume without deciding that the

EEOC regulations are reasonable. See EEOC v. United Parcel

Serv., Inc., 306 F.3d 794, 801 n.4 (9th Cir. 2002) (similarly

assuming the reasonableness of the EEOC regulations on the

definition of disability), Under 45 C.F.R. § 84.3(j)(2)(i), a

9a

“physical impairment” is any physiological condition affect-

ing the neurological, musculoskeletal, respiratory, cardio-

vascular, reproductive, digestive, genitourinary, hemic and

lymphatic, skin, endocrine, or special sense organs. Diabetes

is a physical impairment under the ADA because it is a

physical condition affecting the digestive, hemic, and

endocrine systems. See Bragdon, 524 U.S. at 637 (asymp-

tomatic HIV is a physical impairment because it causes

immediate abnormalities in a person’s blood). Also, EEOC

regulations specifically include diabetes in the definition

of a physical impairment. 24 C.F.R. § 9.103; 28 C.F.R.

§ 41.31(b)(1); 28 C.F.R. § 35.104; 29 C.F.R. § 34.2.

(2).

Turning to inquiry 2, Fraser is substantially limited by her

impairment if she is unable to perform or is significantly

restricted in a major life activity. 29 C.F.R. § 1630.2()(1).

Major life activities include caring for oneself, performing

manual tasks, walking, seeing, hearing, speaking, breathing,

learning, and working. 45 C.F.R. § 84.3(j)(2)(ii). In deciding

whether Fraser’s impairment is substantially limiting, we

must consider the nature and severity of the final impairment,

29 C.F.R. § 1630.2(j)(2)(i), the duration or expected dura-

tion of the impairment, id. § 1630.2(j)(2)(ii), as well as the

permanent or long term impact of the impairment. /d.

§ 1630.2(4)(2)(i1).

All this must be analyzed in conjunction with the

mitigating measures Fraser adopts. Sutton v. United Air Lines,

527 U.S. 471, 482 (1999). In Sutton, twin sisters with severe

myopia contended they were discriminated against by an

airline. Jd. at 475-76. The twins wore corrective lenses which

gave them vision of 20/20 or better. /d. at 475. The Supreme

Court held that the twins were not disabled. /d. at 488-89. The

disability determination does not depend upon hypotheticals

such as what the twins would face if they did not wear

10a

glasses. /d. at 482. Instead, the disability determination

“depends on whether the limitations an individual with an

impairment actually faces are in fact substantially limiting.”

Id. at 488. In Fraser’s case, we consider both artificial

mitigating measures, such as insulin injections and other

drugs, as well as natural mitigating measures, such as the

body’s natural response to cope with physical impairments.

Albertsons, Inc. v. Kirkingburg, 527 U.S. 555, 566 (1999).

Not all mitigating measures cure a person of an underlying

impairment. We therefore review the effectiveness of the

mitigating measure at preventing or ameliorating the under-

lying impairment. Further, the effectiveness of a mitigating

measure is not always static. Like Fraser, a person could be

just as faithful to a treatment regimen, and yet be more

impaired at some times than at others.

Nor should we overlook the side effects of the mitigating

measure, as these can also be impairing. See Murphy v.

United Parcel Serv., Inc., 527 U.S. 516, 521 (1999) (negative

side effects of hypertension medication might substantially

limit a major life activity, but not reaching the issue because

the petitioner did not seek certiorari on this question); Sutton,

527 U.S. at 488 (observing that petitioners concede that they

“do not argue that the use of corrective lenses in itself

demonstrates a substantially limiting impairment”).

We must also consider the burden of the mitigating

‘measure, as this bears directly upon the impact of the

underlying physical impairment. For instance, the burden of

following a healthy diet is slight, whereas the brittle

diabetic’s burden of a perpetual treatment regime demanding

a careful balance of blood sugar, food intake, and activity

levels is greater. Lawson v. CSX Transp., Inc., 245 F.3d 916,

924 (7th Cir. 2001) (comparing simple dietary restrictions to

what the insulin dependent diabetic plaintiff must endure).

lla

In sum, before determining whether a person’s impairment

is substantially limiting, we look at the nature, severity, dura-

tion, and impact of the impairment. 29 C.F.R. § 1630.2()(2)

(i)-(iii). Under Sutton, we consider the mitigat-ing measures

the person uses, their effectiveness, their side effects and their

burdens. This analysis requires a_ sensitive, fact-based

analysis that knows no bright lines. We do not decide whether

every diabetic is disabled, and we do not decide whether

every severely obese person is not disabled. Instead,

“(w]hether a person is disabled under the ADA is an indi-

vidualized inquiry.” Thornton v. McClatchy Newspapers,

Inc., 261 F.3d 789, 794 (9th Cir. 2002); but see Albertsons,

527 U.S. at 566 (recognizing some impairments might

constitute a per se disability).

Whether eating is a major life activity under the ADA is a

question of first impression in our Circuit. Each of our sister

circuits confronted with this question have concluded that

eating is a major life activity. Lawson, 245 F.3d at 923-24

(7th Cir. 2001) (diabetes); Forest City Da Dalv Hous., Inc. v.

Town of N. Hempstead, 175 F.3d 144, 44, 151 (2d Cir. 1999)

(dicta in case involving an assisted living facility); Land v.

Baptist Med. Ctr., 164 F.3d 423, 424 (8th Cir. 1999) (peanut

allergy).

Federal regulations describe major life activities as in-

cluding functions “such as caring for oneself, walking, see-

ing, hearing, speaking, breathing, learning, and working.”

45 C.F.R. § 84.3(j)(2)(ii) (emphasis added); 29 C.F.R.

§ 1630.2(i). This illustrative list of major life activities

requires the activity only to be of “comparative importance”

and “central to the life process itself,” and it need not have a

public, economic, or daily character. Bragdon, 524 U.S. at

638 (holding that reproduction and sexual dynamics are major

life activities); see also Toyota Motor, 534 U.S. at 197. Not

only is eating of comparative importance, but it is integral to

daily existence, Lawson, 245 F.3d at 923, even more so than

a

12a

other activities specifically listed as major life activities. For

instance, one can survive without seeing, hearing, speaking,

or walking. One cannot survive (absent medical technology)

without eating.

However, just because a certain broad activity is of central

importance to most people’s daily lives does not mean that-

every sub-type of the activity is also a major life activity. For

instance, some manual tasks are major life activities, but not

every manual task is a major life activity. Toyota Motor, 534

U.S. at 197, 201 (“the manual tasks unique to any partic-

ular job are not necessarily important parts of most peo-

ple’s lives’).

Like our sister circuits, we hold that, broadly speaking,

eating is a major life activity. However, eating specific types

of foods, or eating specific amounts of food, might or might

not be a major life activity. If a person is impaired only from

eating chocolate cake, he is not limited in a major life activity

because eating chocolate cake is not a major life activity. On

the other hand, peanut allergies might present a unique

situation because so many seemingly innocent foods con-

tain trace amounts of peanuts that could cause severely

adverse reactions.

These issues can be addressed in other cases. As to the type

of eating that Fraser alleges, it is a major life activity and

certainly falls within those activities that are of central

importance to most people’s daily lives. Not only must she

not eat certain foods, but she must carefully assess her blood

sugar before putting anything into her mouth. It is the

physical activity of eating in general that she argues is

impaired, and we agree that this activity is a major life

activity under the ADA.

(3).

With this understanding of Sutton’s limitations and impair-

ment, we are in a place to determine whether her impairment

13a

“substantially limits” the major life activity. The EEOC

regulations explain that a person is “substantially limited” if

she is “[s]ignificantly restricted as to the condition, manner or

duration under which [she] can perform a particular major life

activity as compared to the condition, manner or duration

under which the average person in the general population

can perform that same major life activity.” 29 C.F.R.

§ 1630.2(j)(1)(ii).

The major life activity need not be completely impossible

to perform. For instance, in Bragdon, the Supreme Court held

that a woman suffering from asymptomatic HIV was

substantially limited in the major life activity of reproducing

because she risks infecting the man and her child. 524 U.S.

at 639-41. The Supreme Court recognized that the HIV-

infected woman could still reproduce, but concluded that she

was nonetheless substantially limited. Jd. “The Act addresses

substantial limitations on major life activities, not utter

inabilities.” /d. at 641 (holding that even if there was only an

8% risk of transmitting HIV to the child, HIV is still a

substantial limitation on reproduction).

However, that Fraser simply differs from the average

person in how she performs a major life activity is patently

insufficient for a substantial limitation. Al/bertsons, 527 U.S.

at 565. Similarly, that Fraser merely suffers some limit does

not mean she suffers a substantial limit. EEOC v. United

Parcel Serv. Inc., 306 F.3d 794, 802-03 (9th Cir. 2002). The

Act “concerns itself only with limitations that are in fact

substantial.” Albertsons, 527 U.S. at 565.

Fraser contends that her diabetes substantially interferes

with the major life activities of (a) eating, (b) caring for

herself, and (c) thinking and communicating. We address

each life activity in turn, determining whether it is a major

life activity and whether her impairment substantially limits

the activity.

il

14a

(a).

Though we hold that eating is a major life activity, we do

not thereby invite all those on a diet to bring claims of

disability. Not every impediment to the copious and tasty

diets our waistlines and hearts cannot endure is a substantial

limitation of the major life activity of eating. We must

carefully separate those who have simple dietary restrictions

from those who are truly disabled. At the same time, we must

permit those who are disabled because of severe dietary

restrictions to enjoy the protections of the ADA. Based on tiie

summary judgment record here, we must determine whether

Fraser presented a genuine issue of material fact as to whether

her diabetes and her rigorous treatment regimen substantially

limit the major life activity of eating.

Fraser’s diabetes regimen is perpetual, severely restrictive,

and highly demanding. Fraser must test her sugar several

times daily, each test is painful, and takes close to five

minutes to complete. She must vigilantly monitor what and

how much she eats. She must time her daily shots and meals

so carefully that it is not safe for her to live alone. (She could

end up in the ambulance if she took too long a nap between a

shot and breakfast.) She must always have certain foods

available in case her blood sugar drops or skyrockets. She

must always be able to take time to eat or give herself

injections to balance her blood sugar levels. She cannot put a

morsel of food in her mouth without carefully assessing

whether it will tip her blood sugars out of balance. She cannot

skip or postpone a snack or meal without cautiously studying

her insulin and glucagon levels. She must constantly,

faithfully, and precisely monitor her eating, exercise, blood

sugar, and other health factors, and even this is no guarantee

of success. See Lawson, 245 F.3d at 924-25 (concluding that

similar evidence raised a jury question as to whether diabetes

substantially limited Lawson’s major life activity of eating);

15a

Nawrot v. CPC Internat’l, 277 F.3d 896, 904-05 (7th Cir.

2002) (addressing a brittle diabetic’s substantial limitations

on the major life activity of thinking and caring for himself).

Unlike a person with ordinary dietary restrictions, Fraser

must monitor much more than what and how much she eats.

Unlike a person with ordinary dietary restrictions, she does

not enjoy a forgiving margin of error. While the typical per-

son on a heart-healthy diet will not find himself in the

emergency room if he eats too much at a meal or forgets his

medication for a few hours, Fraser does not enjoy this luxury.

As in Lawson, even when taking insulin, her ability to

“regulate h[er] blood sugar and metabolize food is difficult,

erratic, and substantially limited.” Lawson, 245 F.3d at 924.

Even when followed with utmost skill and faithfulness,

Fraser’s treatment regimen does not completely save her from

the havoc her diabetes wreaks on her ability to eat normally:

Q: [Counsel] mentioned several risks that Miss Fraser

might face. Would those risks be significantly dimin-

ished if she followed a strict regimen of diet, closely

monitoring her blood glucose levels, and properly

administering her insulin?

A: [Dr. Lockwood] To a certain extent, they would be

aggravated by that... [I]f a person is in really what we

call tight control, really good control, where her sugars

are running down in the low hundreds most of the time,

then her margin of error is reduced. So if... she broke

down her car and she couldn’t get food, she would

actually be closer to being in trouble than—than not... .

And so the tight control in one way requires you to be

really much more rigid in terms of your activity, and

your margin of error is less.

16a

Again, Dr. Lockwood explained:

A: the closer you get to good control, the more

problems you’re going to have with reactions. . . . [I]t’s

impossible, since we’re giving, you know, insulin in sort

of an artificial way, we are just trying to guess and—and

anticipate what her needs are going to be. . . . [E]very

meal is a little bit different and every day is slightly

different in activity, even with the best of intentions. So

the diabetic is going to have wider swings, no matter

what they do, than youorl....

(Emphasis added). Dr. Lockwood then clarified further:

there was a study that came out several years ago that

showed improving control with multiple injections and

monitoring a lot reduces the long-term complications.

But that study also shows that when you do that, you

increase the numbers of insulin reactions and hypo-

glycemic reactions. Because as you get down towards

that target, you’re going to have some times when your

blood sugar goes too low.

In short, Fraser presented evidence that the major life activity

of eating is substantially limited because of her demanding

and highly difficult treatment regimen.

In response, the Bank argues that Lawson’s emphasis on

the dire consequences of failing the treatment regimen runs

counter to Sutton’s command not to consider the plaintiff's

hypothetical state. The Bank misreads Lawson. Lawson con-

sidered these consequences because diabetics like Lawson

and Fraser suffer debilitating insulin reactions and significant

limits on their major life activities despite their adherence to

the treatment regimen. Lawson, 245 F.3d at 926. Sutton

requires us to consider Fraser’s actual state. 527 U.S. at 488.

Sutton does not require us to pretend that treatment measures

are completely effective when there is evidence that they

are not.

|

17a

The Bank suggests that if Fraser carried a backpack with

food and insulin shots, then she could control her blood sugar

levels. The Bank contends that having to carry a backpack is

not substantially limiting. This belittles Fraser’s impairment.

Even though she can (and does) carry a backpack, Fraser’s

perpetual, difficult, and multifaceted treatment regimen sub-

stantially limits the major life activity of eating. Accord

Lawson, 245 F.3d at 924-25. Simply having the means to

control an illness does not make controlling the illness easy.

Moreover, the backpack defense does not help here. If

Fraser is not substantially limited in a major life activity

~ because she could carry a backpack, then no diabetic is

disabled, since all could carry backpacks. This goes too far

because no employer would have to accommodate diabetics

by letting them use the backpack. The injustice of this

conclusion is best i!iustrated by the facts here: Fraser had

food with her at her desk, but her employer refused to let her

eat it. A backpack of food and insulin shots is nothing but a

heavy accessory in light of an employer's refusal to ac-

commodate. As Dr. Lockwood concluded:

she’s limited . . . by the requirements of—of the con-

dition itself, just to maintain. So if she can’t take a break

to eat, can’t take a break to get her shot, can’t take a

break to test herself, that’s a potential problem.

The Bank also asserts that, unlike Fraser, Lawson suffered

a host of intermediate complications from his diabetes, such

as proliferative diabetic retinopathy, impotence, proteinuria,

and periodic episodes of limited joint mobility syndrome.

Lawson, 245 F.3d at 919. Fraser, on the other hand, suffered

from different ailments, such as adult respiratory distress

syndrome, ulcers, chronic nausea, and diabetic gastroparesis.

This difference is not critical to the Bank’s summary

judgment motion, as it does not demonstrate that Fraser’s

impairment is not substantially limiting. The Seventh Circuit

likewise considered Lawson’s intermediate complications

18a

irrelevant to the disability determination, as it did not detail

whether Lawson’s ailments are serious, and it did not even

mention these ailments as being relevant to the disability

issue. Lawson, 245 F.3d at 924. In fact, after listing only the

evidence that is similar to Fraser’s evidence, the court con-

cluded that “/t/his evidence is sufficient for a jury to find that

Mr. Lawson is substantially limited,” implying that other

evidence was not necessary. /d. (emphasis added).

The Bank contends that Dr. Lockwood testified that as long

as Fraser keeps regular habits and can keep her blood glucose

normal, she would not have any substantial limitations. The

Bank begs the question. The problem with a brittle diabetic is

that it is very difficult to keep her blood glucose normal.

(b).

Fraser next argues that she is significantly limited in caring

for herself. Caring for oneself is a major life activity, 29

C.F.R. § 1630.2(i), but Fraser has not presented evidence that

her diabetes substantially limits her in this activity.

Fraser argues that if her blood sugar levels are too high or

too low, she has difficulty caring for herself. She does not

argue that she is significantly limited in caring for herself

because of her rigorous treatment regimen, which would be

similar to her argument that she is significantly limited in the

major life activity of eating. She instead argues that when she

is unsuccessful in attaining a proper blood sugar level, she

cannot properly care for herself. She describes her past

difficulties in bathing, walking, getting ready for work,

driving, and other such activities.

The problem is that Fraser does not show that these effects

occurred often enough to constitute a substantial limitation.

While there is evidence that Fraser is substantially limited in

eating because of her severe and demanding restrictions, there

is no evidence that she is so unsuccessful in monitoring her

|

19a

blood sugar levels that she is substantially limited in caring

for herself. Accord Orr v. Wal-Mart Stores, Inc., 297 F.3d

720, 724 (8th Cir. 2002). In her brief, she argues that she

presented evidence that in mid-November 1998, in February

of 1999, and twice in March of 1999, she suffered insulin

reactions that severely limited her ability to care for herself.

But being unable to care for oneself four times during a five

month period is not a substantial limitation. She is not

“significantly” restricted in caring for herself as compared to

the average person in the general population. 29 CFR.

§ 1630.2(j)(1)(ii). EEOC v. Sara Lee Corp., 237 F.3d 349,

353 (4th Cir. 2001) (holding that one or two nocturnal

seizures a week and occasional daytime seizures do not

substantially limit plaintiff's ability to care for herself). We

therefore affirm the district court’s conclusion that Fraser

failed to demonstrate a genuine issue of material fact that she

was substantially limited in caring for herself.

(Cc).

Lastly, Fraser argues her diabetes substantially limits her

major life activity of thinking and communicating. Fraser

argued to the district court that her impairment “affects

several major life activities, including . . . learning. . . When

[Fraser’s] blood sugar falls, [she] . . . is unable to concentrate

or communicate effectively... .”

However, her “thinking and communicating” argument

fails for the same reason her “caring for herself’ argument

failed: she demonstrated no genuine issue of material fact that

she is so unsuccessful in maintaining a proper blood sugar

level to limit substantially her life activity of thinking and

communicating. In her brief, she argues that she presented

evidence that she suffered insulin reactions that impaired her

ability to think in November of 1998, in January of 1999, and

in March of 1999. Being unable to think and communicate

three times in a five month period is not a substantial

20a

limitation. The ADA requires Fraser to “be presently—not

potentially or hypothetically—substantially limited to demon-

strate a disability.” Sutton, 527 U.S. at 482. Absent evidence

that Fraser suffers such frequent insulin reactions that she is

substantially limited in the major life activities of thinking

and communicating, we must affirm the district court on

13120 Fraser v. Goodale this issue. We do not rule out the

possibility that a future claimant will be able to present

evidence that she suffers such frequent insulin reactions that,

despite her mitigating measures, she is substantially limited in

these activities.

IV.

The district court granted the Bank summary judgment on

Fraser’s retaliation claims, concluding that Fraser’s claim

failed because she demonstrated no genuine issue of material

fact as to the existence of a disability. Insofar as we hold that

Fraser has presented a material issue of fact.on her diabetes

significantly limiting the major life activity of eating, we

reverse and remand on that claim.

However, we agree with the district court that Fraser has

not presented a genuine issue of material fact as to the major

life activities of caring for herself, thinking, and commu-

nicating. Fraser argues that even if she is not disabled in the

major life activities of caring for self, thinking, and

communicating, she nonetheless has a good faith belief that

she was disabled. She contends that this is sufficient to permit

her retaliation claims to go forward on these major life

activities. We do not decide the merits of her argument

because Fraser failed to preserve this issue.

Fraser did not allege a good faith belief in her disability in

her complaint. She instead alleged only that she was in fact

disabled. When the Bank moved for summary judgment on

all Fraser’s claims, Fraser responded that she was disabled.

2la

At no time did she argue to the district court that even if

she was not disabled, she still had a good faith belief that she

was disabled.

Fraser argues that the Bank did not actually move for

summary judgment on her retaliation claims. This assertion is

contradicted by the Bank’s motion for summary judgment,

which sought judgment as to all Fraser’s claims. On the last

page of its memorandum in support of its motion for

summary judgment, the Bank again clarified that it argued

that because Fraser was not disabled under the ADA, “all four

of her claims for disability discrimination fail.” The Bank

asked again for summary judgment on “all of Fraser’s

claims.” The distfict court also correctly understood the

Bank’s motion, for it expressly granted the Bank summary

judgment on Fraser’s retaliation claim.

No exceptional circumstance justifies Fraser’s failure to

raise this argument in the district court, and so we decline to

address her argument now. Yang v. Cal. Dept. of Social

Servs., 183 F.3d 953, 957-58 (9th Cir. 1999); Jones v. United

States, 121 F.3d 1327, 1332 (9th Cir. 1997); Moran v. Aetna

Life Ins. Co., 872 F.2d 296, 300 (9th Cir. 1989).

¥,

In sum, Fraser presented a genuine issue of material fact

that her diabetes significantly limits her major life activity of

eating. We reverse and remand the district court’s disability

summary judgment as to this major life activity together with

its retaliation counterpart. We affirm the district court’s

summary judgment as to the major life activities of caring for

herself, thinking, and communicating.

AFFIRMED IN PART, REVERSED AND REMANDED

iliac

22a

TALLMAN, Circuit Judge, dissenting in part:

To “eat” means “to take in through the mouth as food:

ingest, chew, and swallow in turn.” Webster's New Collegiate

Dictionary 355 (1979). Nothing in this record suggests that

Rebecca Fraser has any difficulty ingesting food, chewing

food, or swallowing food. It follows that she is not substan-

tially limited in the major life activity of eating, and |

respectfully dissent from that portion of today’s opinion so

holding.

23a

APPENDIX B

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

Civil No. 00-543-JO

REBECCA ANN FRASER,

Plaintiff,

V.

UNITED STATES BANCORP, a federally insured

banking corporation; ET AL.,

Defendants.

September 28, 2001, Decided

OPINION AND ORDER

JONES, Judge:

Plaintiff Rebecca Ann Fraser brings three claims under

the Americans with Disabilities Act (“ADA”), 42 U.S.C.

§ 12101 et seq, and one claim under the parallel state statute,

ORS 659.436, against her former employer, defendant U.S.

Bank National Association (“the bank’), and a common law

claim for intentional infliction of emotional distress against

the bank and three individual defendants.

Defendants now move for summary judgment on all claims

(# 35). In response to the motion, plaintiff agreed to withdraw

her claim for intentional infliction of emotional distress. That

claim and all individual defendants are, therefore, dismissed.

The remainder of the bank’s motion is narrowly focused on

one essential element of plaintiff's ADA claims: whether she

24a

is “disabled” within the meaning of the ADA. Specifically,

the question framed by the pleadings is whether during the

relevant time, plaintiff had an impairment that “substantially

limited a major life activity.” For the reasons explained

below, I conclude that plaintiff has failed to demonstrate the

existence of a genuine issue of material fact as to whether she

was disabled as defined. Consequently, the remainder of the

bank’s motion is granted.

STANDARD

Summary judgment should be granted if there are no

genuine issues of material fact and the moving party Is enti-

tled to judgment as a matter of law. Fed. R. Civ. P. 56(c). If

the moving party shows that there are no genuine issues of

material fact, the non-moving party must go beyond the

pleadings and designate facts showing an issue for trial.

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d

265, 106 S. Ct. 2548 (1986). A scintilla of evidence, or

evidence that is merely colorable or not significantly proba-

tive, does not present a genuine issue of material fact. United

Steelworkers of America v. Phelps Dodge, 865 F.2d 1539,

1542 (9th Cir. 1989).

The substantive law governing a claim determines whether

a fact is material. Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); see also

T.W. Elec. Service v. Pacific Elec. Contractors, 809 F.2d 626,

630 (9th Cir. 1987). Reasonable doubts as to the\ existence of

a material factual issue are resolved against the moving party.

T.W. Elec. Service, 809 F.2d at 631. Inferences drawn from

facts are viewed in the light most favorable to the non-

moving party, /d. at 630-31.

25a

FACTUAL BACKGROUND

Because the present motion addresses only the issue of dis-

ability, the parties have not explained the factual background

giving rise to plaintiff's claims in any detail. The First

Amended Complaint (“Complaint”) alleges the following.

Plaintiff alleges that she began employment for the bank on

June 29, 1998, in the position of Senior Account Specialist

for Fastline banking. At that time she informed her employer

that she was diabetic. Shortly thereafter, she was promoted to

Senior Account Specialist.

On November 16, 1998, plaintiff was informed by her

supervisor, Jeff Erwin, that she could not eat at her desk. At

7:30 p.m.' that day plaintiff recorded her blood sugar as

“dangerously low 46 * * *.” A few minutes later, her blood

sugar dropped to 34. She wanted to eat some cookies at her

desk, but first sought clarification from Erwin because of his

“admonition.” Complaint, P 13. Plaintiff approached Erwin,

explained the problem, and asked to eat at her desk. Erwin

“declined to speak with her about her situation and told her to

return to work.” Plaintiff became disoriented, forgot how to

leave the building, again asked Erwin for permission to eat

something, he “responded negatively,” and eventually plain-

tiff “went home and passed out.” Complaint, P 14.

Plaintiff filed a complaint with Erwin’s supervisor, Joe

Ledbetter. On_Novemher 18,1998, Ledbetter asked plaintiff

to meet with him, “indicating that he was investigating [her]

complaint,” but made her sit in his waiting area for seven

hours. Plaintiff alleges that she is “unaware of any discipline

which was given to Mr. Erwin.” Complaint, P 15.

Plaintiff alleges that from November 20, 1998, through

March 3, 1999, she was subjected to retaliation for filing her

complaint “including harassment, a change of assignment, a

' Plaintiff evidently worked a late shift.

26a

change of workstation and increased scrutiny.” Complaint,

P 16 (listing various actions).

In January 1999, plaintiff asked for and was approved to

take a leave of absence to install an insulin pump. Plaintiff

alleges that she called in on each day of her absence, as

required. According to plaintiff, “despite the prearrangement

and the written acceptance of the disability leave, on or about

March 12, 1999, Plaintiff was terminated * * * while she was

in the Diabetic Institute having her insulin pump installed.”

Complaint, PP 17, 18.

DISCUSSION

1. Legal Framework

None of the above factual background is directly at issue in

the present motion. Instead, the motion is limited to the issue

of whether plaintiff's diabetes qualifies as a “disability” under

the ADA and parallel state law. The ADA protects only those

individuals whose impairments “substantially limit” a major

life activity. 42 U.S.C. § 12112(a); 29 C.F.R. § 1630.2(g)(1).

“Substantially limits,” as defined by the regulations, means

the individual either is:

(i) Unable to perform a major life activity that the

average person in the general population can perform; or

(ii) Significantly restricted as to the condition, manner

or duration under which an individual can perform

a particular major life activity as compared to the

condition, manner, or duration under which the average

person in the general population can perform that same

major life activity.

29 C.F.R. § 1630.2(j)(1). “Major life activities” mean func-

tions such as caring for oneself, performing manual tasks,

walking, seeing, hearing, speaking, breathing, learning, and

working.” 29 C.F.R. § 1630.2(i).

27a

In 1999, the United States Supreme Court clarified that

“the determination of whether an individual is disabled

should be made with reference to measures that mitigate the

individual’s impairment * * *.” Sutton v. United Air Lines,

Inc., 527 U.S. 471, 475, 144 L. Ed. 2d 450, 119 S. Ct. 2139

(1999). That ruling rejected the EEOC’s “Interpretive

Guidance,” which stated that “‘the determination of whether

an individual is substantially limited in a major life activity

must be made on a case by case basis, without regard to

mitigating measures such as medicines, or assistive or

prosthetic devices.’” Sutton, 527 U.S. at 480 (quoting 29

. C.F.R. Pt. 163, App. § 1630.2(j)(1998)(superceded to reflect

the Sutton ruling). In rejecting the EEOC’s definition of

disability, the Supreme Court noted that

The agency guidelines’ directive that persons be

judged in their uncorrected or unmitigated state runs

directly counter to the individualized inquiry mandated

by the ADA. The agency approach would often require

courts and employers to speculate about a person’s

condition and would, in many cases, force them to make

a disability determination based on general information

about how an uncorrected impairment usually affects

individuals, rather than on the individual’s actual condi-

tion. For instance, under this view, courts would almost

certainly find all diabetics to be disabled, because if they

failed to monitor their blood sugar levels and administer

insulin, they would almost certainly be substantially

limited in one or more major life activities. A diabetic

whose illness does not impair his or her daily activities

would therefore be considered disabled simply because .

he or she has diabetes. Thus, the guidelines approach

would create a system in which persons often must be

treated as members of a group of people with similar

impairments, rather than as individuals. This is contrary

to both the letter and the spirit of the ADA.

Sutton, 527 U.S. at 483-84 (emphasis added).

28a

Thus, disabilities must be evaluated “‘with respect to an

individual’” and “is an individualized inquiry.” Sutton, 527

U.S. at 483 (quoting Bragdon v. Abbott, 524 U.S. 624, 641-

42, 141 L. Ed. 2d 540, 118 S. Ct. 2196 (1998).

2. Facts Relevant to Present Motion

666

The parties mostly agree on the following facts. Plaintiff

is a Type | (juvenile onset or insulin dependent) diabetic.

Her diabetes is “uncomplicated,” that is, so far she shows

no risk of developing long-term complications such as blind-

ness, vascular cardiac disease, or kidney failure. Defendants’

Memorandum, Deposition of Darrell Lockwood, M.D.

(“Lockwood depo”), pp. 13-14. On the other hand, plaintiff is

what some call a “brittle diabetic” (although her doctor, Dr.

Lockwood does not “personally use that term,” Lockwood

depo, p. 9), that is, her blood glucose level tends to swing

high and low fairly rapidly. In 1992, plaintiff suffered a

diabetic coma and since then, has been rated permanently

partially disabled by the Social Security Administration and

receives benefits.

It appears from the evidence, in particular Dr. Lockwood’s

testimony and chart notes, that historically, plaintiff has had

significant difficulty controlling her blood glucose levels, at

least in part because at times she failed to follow his advice

and drank alcohol, did not exercise, did not monitor her blood

glucose as instructed, and did not use insulin as instructed.

The parties both rely on the following testimony from Dr.

Lockwood concerning the effect of plaintiffs diabetes:

Q. (by defense counsel): Now, if Ms. Fraser had taken

the steps that you outlined to me to have a regular diet,

proper insulin injections, and proper monitoring of her

blood glucose levels, would she have been substantially

limited in any of the following major life activities:

Caring for herself?

A. No.

Q. Performing manual tasks?

29a

A. Well, only to the extent, and this would probably

apply to most of those things, it would have to do

potentially. Depends on the—on the duration of the

activity, for example. In other words, you and I could

skip a meal. You know, the normal person might have a

job—

* * *

A. I’m saying there might be a limit. Potentially, there

might be a manual activity or there might be a require-

ment, let’s say, to be in a meeting or whatever you’re

talking about, that takes you beyond the point where,

you know, you need to test yourself or you need to—or

you need to take your shot or you need to eat.

On the other hand, if she was in a situation where she

had to do a physical activity, you know, significantly

more than she was used to, then that would affect her. Or

conversely, if she were kept from doing—because of one

occupation kept from doing the normal amount of

physical activity, that would affect her.

So that, you know, we sort of differentiate it down.

Could she do virtually any manual task that any other

person like her could do? For now, sure. She at this point

in her life is not limited for that. But could she do it for,

you know, for six hours? Probably not. See what I’m

saying? She can do it—

Q. She can walk.

A. Yeah, she can walk.

Q. Can she see?

A. She can see.

Q. Can she hear?

A. She can hear.

Q. Can she speak?

A. She can speak.

Q. And can she learn?

A. She can learn. Now, learning and speaking and seeing

at least all can be affected if the sugars are high or low.

Q. But if her blood glucose is properly controlled.

A. If it’s normal at this point, she can do all those things.

But what I’m saying is doing those things could poten-

30a

tially affect her ability to keep that sugar normal. So

there is this interaction.

You know, it might be analogous to ask whether a

nursing mother could do all of those things. A nursing

mother could do all of those things, but not without an

interruption once in a while.

Q. Would you consider a nursing mother to be disabled?

A. No, but she’s limited. She’s going to have to deal

with the reality of her situation. And I think that’s—The

diabetic is, in her case, she’s limited not by the

complication of diabetes, but by the requirements of—of

the condition itself, just to maintain. So if she can’t take

a break to eat, can’t take a break to get her shot, can’t

take a break to test herself, that’s a potential problem.

Lockwood depo, pp. 51-54 (emphasis added).

In March 1999, plaintiff had an insulin pump installed. She

testified that, with the pump, she can lead a normal life except

that she cannot get the pump wet, for example, she must re-

move the pump to water ski. She states that she can consume

what she wants, when she wants, and can consume alcohol.

She can work, and has worked full time since she left the

bank. According to plaintiff, as long as her blood glucose

level is under control and she is not having a bad day, “I don’t

have a tremendous amount of limitations” and “there really

are no limitations on what [I] can do.” Deposition of Rebecca |

Fraser (“Fraser depo”), pp. 47-48. In the year after receiving

the insulin pump up through the deposition, plaintiff

experienced at most only two bad days. Id. at p. 48.

3. The Parties’ Arguments

The bank summarizes its argument in favor of summary

judgment as follows:

Fraser has, over a period of several years, been irre-

sponsible in taking the routine steps that are necessary to

deal with her diabetes. As long as she takes these

measures, she should have no problems. Her diabetes is

3la

uncomplicated. She can lead a perfectly normal, active,

healthy life by following the regimen of regular

monitoring, diet, and exercise.

Defendants’ Memorandum, p. 10. The bank continues:

Fraser’s condition should be examined in its corrected

state. Under this analysis, she is not a disabled person for

two reasons. First, for many years, she failed to take

corrective measures that would very easily have con-

trolled her diabetes. Her failure to do so is her re-

sponsibility and her fault. Had she taken these simple

measures, there is no dispute that she would not have

been substantially limited in any major life activity. She

cannot bootstrap herself into coverage under the ADA

by acting irresponsibly and failing to take the measures

that any similarly situated prudent person would. * * *

Second, Fraser is not disabled because she has ad-

mitted that, with the installation of her insulin pump, she

is perfectly able to function without any limitation. * * *

Defendants’ Memorandum, p. 23. The bank further contends

that even in her unmitigated state and disregarding plaintiff's

poor self-care, she cannot show and has not shown that her

diabetes substantially limited any major life activity.

In response, plaintiff first contends that her condition with

the insulin pump after March 1999, when she was terminated,

is irrelevant. I agree with plaintiff on this point. If the insulin

pump is relevant at all, it would show only that her diabetes

could have been better controlled by use of the pump.

Evidence concerning the insulin pump does not establish,

however, the extent to which her diabetes was controllable

during her short tenure with the bank, at least up through the

last few days of employment. See, e.g., Cash v. Smith, 231

F.3d 1301, 1306 n.5 (11th Cir. 2000)(the employment action

complained of occurred in late April and early May of 1998,

“and we evaluate her disability as manifested at that time”);

Gray v. Sears, Roebuck & Co., 131 F. Supp. 2d 895, 903

32a

(S.D. Tex. 2001) (evidence of substantial limitations caused

by plaintiff's diabetes irrelevant as “disability must be

evaluated as it existed at the time of the alleged adverse

employment decision’”’).

Second, plaintiff argues that the bank has “misappropri-

ated” the Sutton holding. According to plaintiff, when the

Supreme Court said that mitigating measures must be taken

into account in judging whether an individual with an impair-

ment is disabled, the Court did not intend the impairment to

be evaluated in some hypothetical controllable state; rather,

the Court intended the impairment to be evaluated “in light

of the actual (but not hypothetical) controlling measures

employed by plaintiff and her physicians.” Plaintiff's

Opposition, p. 7. Plaintiff thus argues that the impact of her

diabetes in July 1998 through March 1999, the period of her

employment, must be considered in light of the actual

corrective measures in place at that time, which did not

include an insulin pump.

Based on the above, plaintiff makes two arguments. First,

she asserts that the bank has failed to establish that she “acted

in any way voluntarily to avoid reasonable mitigating

treatments or medications.” Plaintiff's Opposition, p. 9 (foot-

note omitted). Instead, according to plaintiff, the evidence

shows that she monitored her blood glucose level a minimum

of four times per day, that her bad eating habits in part

resulted from possible diabetic gastroparesis, and that she

never skipped an insulin injection. Plaintiff states that she has

been “pretty good” about checking her glucose levels, and has

never been openly resistant to Dr. Lockwood’s medical

advice. See generally Plaintiffs Opposition, pp. 9-10.

Second, plaintiff contends that during the relevant time, her

diabetes had a substantial effect on major life activities:

During the fall of 1998, plaintiff experienced frequent

fluctuations in her blood sugar levels exacerbated by

stress on the job, requiring intervention by her treating

33a

physician and others. On several occasions, plaintiff was

unable to wake up in the morning because her blood

sugar had fallen during the night. * * * The substantial

limitations on [plaintiff's] ability to eat, speak, think,

and reason were starkly evident on November 16, 1998

when she was not allowed to finish her lunch at her desk

and suffered a severe episode of low blood sugar. * * *

When [plaintiff's] blood sugar dropped, she went into

hypoglycemia, which directly affected her ability to

think, walk, talk, and communicate.

Plaintiff's Opposition, pp. 10-11 (citations omitted).

4. Analysis

The parties each cite cases from other jurisdictions in

which courts either did or did not find sufficient evidence that

a person with diabetes or some other treatable condition was

“disabled” within the meaning of the ADA. I have reviewed

those cases, but the point remains that the inquiry must be an

individualized one: Diabetes, while no doubt an impairment,

is not a per se disability ° it may render certain individuals

disabled, depending on the facts.

In this case, the bank’s motion rests on the theory that

plaintiff's own behavior caused her diabetes to be out of

control, and that if controlled, her diabetes would not affect

any major life activity as evidenced by her condition after

installation of the insulin pump. The bank also has presented

evidence, in the form of plaintiff's doctor’s testimony and her

own, that mitigated or unmitigated, her diabetes caused no

actual substantial limitation, only a potential limitation, on a

major life activity.

In response to the bank’s motion, plaintiff offers generali-

ties and speculation concerning how she might have been

affected if her blood glucose level was not well-controlled,

but has failed to produce specific, admissible evidence that

she was, in fact, substantially limited during the relevant

period of time. While it appears from the evidence that

34a

diabetes has an adverse effect on plaintiff, no evidence

demonstrates or even suggests that diabetes substantially

limited her ability to care for herself, perform manual tasks,

walk, see, talk, breathe, learn, work, or engage in similar

activities.

Plaintiff also proposes that the effect of diabetes on her

endocrine system function and ability to metabolize food

qualifies as a substantial limitation on a “major life activity.”

In the absence of a statute, administrative rule, or Ninth

Circuit precedent supporting such a theory, | decline to accept

that in crafting the language of the ADA, Congress intended

the functioning of a person’s internal bodily systems, without

more, to qualify as a “major life activity.”

Because the bank has demonstrated the absence of a

genuine issue of material fact, plaintiff was required to come

forward with specific, admissible evidence sufficient to create

4 triable issue of fact as to whether she was disabled during

the relevant time, a critical element of her prima facie case.

Plaintiff has failed to do so. The bank is, therefore, entitled to

summary judgment on plaintiffs disability discrimination

claims.

CONCLUSION

Defendants’ motion for summary judgment (# 35) is

GRANTED with respect to plaintiff's ADA and state law

disability discrimination claims and_ those claims are

dismissed. Based on plaintiff's withdrawal of her claim for

intentional infliction of emotional distress, that claim is

dismissed and the portion of defendant’s motion addressing

that claim is MOOT. Any other pending motions are denied

as moot and this action is dismissed with prejudice.

DATED this 28th day of September, 2001.

/s/ Robert E. Jones

U.S. District Judge

35a

JUDGMENT

Based upon the record,

IT IS ORDERED AND ADJUDGED this action is

dismissed with prejudice.

DATED this 28th day of September, 2001.

/s/ Robert E. Jones

U.S. District Judge

se

36a

APPENDIX C

UNITED STATES COURT OF-APPEALS

FOR THE NINTH CIRCUIT

[Filed Oct. 20, 2003]

No. 01-36018

D.C. No. CV-00-00543-JO

District of Oregon, Portland

REBECCA ANN FRASER,

Plaintiff-Appellant,

V.

CAROL GOODALE, ef al..,

Defendants-Appellees.

ORDER

Before: LAY, WALLACE, and TALLMAN, Circuit

Judges.

Judge Tallman voted to grant Appellees’ en banc petition.

Judge Lay and Judge Wallace recommend rejection of the

| petition for rehearing en banc.

The full court has been advised of the petition for rehearing

en banc and no judge of the court has requested a vote on it.

Fed. R. App. P. 35(b).

The petition for rehearing en banc 1s DENIED.