Swart v. Premier Parks Corp., 10th Cir. (2004)
Swart v. Premier Parks Corp., 10th Cir. (2004)
Swart v. Premier Parks Corp., 10th Cir. (2004)
FEB 19 2004
PATRICK FISHER
Clerk
PATRICIA D. SWART,
Plaintiff-Appellant,
v.
PREMIER PARKS CORPORATION;
SIX FLAGS ELITCH GARDENS,
No. 03-1048
(D.C. No. 00-D-2105)
(D. Colo.)
Defendants-Appellees.
ORDER AND JUDGMENT
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal.
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Plaintiff Patricia Swart appeals from a jury verdict rendered in favor of her
former employer, Premier Parks and Six Flags Elitch Gardens (Elitch) on her suit
alleging Elitch discharged her because of her disability, in violation of the
Americans with Disabilities Act, 42 U.S.C. 12101 to 12213 (ADA). She
challenges the district courts instruction to the jury regarding the impairments
she claimed and the major life activities affected by those impairments. We have
jurisdiction under 28 U.S.C. 1291, and we affirm.
I.
Plaintiff was hired in 1996 by Elitch, an amusement park, as a seasonal
employee. As such, she was laid off at the end of each park season, usually
October, and rehired at the start of the next. At the end of the 1998 season,
however, she was accepted for a position in Elitchs corporate loss prevention
department. She began work in October 1998 and worked there year-round until
her termination in October 1999. Plaintiff believed her new job was a permanent,
year-round position; Elitch contended at trial that the position was seasonal.
In May 1999, plaintiff was diagnosed with breast cancer and immediately
underwent a left radical mastectomy. She then underwent chemotherapy and
radiation treatments, which led to side effects of extreme fatigue, recurrent
headaches, nausea, vomiting, low blood counts, and anemia. She could not fully
lift her left arm and suffered insomnia. She missed time from work due to her
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chemotherapy and radiation treatments and the resultant fatigue and other side
effects, and she was often unable to work a full forty-hour work week.
In October 1999, Elitch ordered all non-essential seasonal personnel to be
laid off. Plaintiffs supervisor retained one seasonal employee and a newly hired
employee, but laid off plaintiff. Plaintiff contended she was selected for
termination because of her breast cancer and related disabilities. Elitch contended
she was terminated because she was a non-essential, seasonal employee. Two
years later, plaintiff underwent further surgery and lost her right breast.
II.
The ADA prohibits employment discrimination on the basis of an
employees disability.
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Imaging of Colo. , 248 F.3d 1249, 1257 n.4 (10th Cir. 2001) (considering only
impairments suffered prior to the adverse employment action).
The remainder of plaintiffs requested addition (the resultant impact upon
her ability to engage in reproductive and sexual activities), more accurately
describes a major life activity. Merely having an impairment does not make
one disabled for purposes of the ADA. Claimants also need to demonstrate
that the impairment limits a major life activity.
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Inc. v. Williams , 534 U.S. 184, 195 (2002). Major life activities . . . refers to
those activities that are of central importance to daily life.
Id. at 197.
Neither the district court nor Elitch questioned the premise that the ability
to reproduce or to engage in sexual conduct constitute major life activities.
See Bradgon v. Abbott , 524 U.S. 624, 638 (1998) (holding that [r]eproduction
and the sexual dynamics surrounding it are central to the life process itself.).
Rather, the district court ruled that there was no testimony, medical or otherwise,
that plaintiffs breast cancer or loss of a breast had interfered with her ability to
reproduce or engage in sexual activities. Aplt. App., Vol. VI at 696, 697, 701,
707-08.
It is insufficient for individuals attempting to prove disability status
under this test to merely submit evidence of a medical diagnosis of
an impairment. Instead, the ADA requires [claimants to offer]
evidence that the extent of the limitation caused by their impairment
in terms of their own experience is substantial. That the [ADA]
defines disability with respect to an individual, 42 U.S.C.
12102(2), makes clear that Congress intended the existence of
a disability to be determined in such a case-by-case manner.
Toyota , 534 U.S. at 198 (quotations and citations omitted).
It is this test that plaintiff fails. After carefully reviewing the record, we
conclude that plaintiff fails to meet the high threshold of demonstrating that the
district court abused its discretion in declining to issue the requested instruction.
We agree with the district court that there was no evidence showing that
plaintiffs impairments interfered with any of the additional life activities she
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Control , 165 F.3d 767, 776 (10th Cir. 1999) ([w]hen a court rules as a matter of
law that a party introduced insufficient evidence to warrant the jurys
consideration of a claim, it is perfectly within the courts discretion to decline to
instruct the jury on the matter.). The only evidence at all related to reproduction
was plaintiffs testimony that she is of child-bearing age, and that breasts were
important for child-rearing and sexual contact. Aplt. App., Vol. V at 640.
Plaintiff did not testify that she was unable to reproduce or was restricted or
impaired in any way in her ability to become pregnant or bear a child, nor was
there any medical evidence to this effect. Further, plaintiff did not testify that she
had experienced any difficulties in her ability to engage in sexual conduct.
Plaintiffs counsel argued to the district court that ones ability to be
sexually active or to breast feed a child would be impaired by the loss of a breast,
but hypothetical arguments of counsel are insufficient. The ADA requires
plaintiff to be presentlynot potentially or hypotheticallysubstantially limited
[in a major life activity] in order to demonstrate a disability.
Sutton v. United
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, 182
F. Supp. 2d 1148, 1155 (D. N.M. 2001) (finding breast cancer interfered with
plaintiffs sexual conduct and reproduction based on unrefuted evidence her
medications made sexual intercourse painful), with
Dist. , 199 F. Supp. 2d 949, 960 (E.D. Mo. 2002) (finding breast cancer did not
substantially interfere with reproduction and sexual conduct where plaintiff made
only conclusory allegations). On the record developed in this case, we find no
error in the district courts rejection of these requested additions to the jury
instructions.
Plaintiff also contends the district court erred in rejecting her requested
instruction that suffering migraines for years constitutes an impairment. Aplt.
Br. at 11. Plaintiff testified that she began suffering from migraine headaches
during her chemotherapy treatments and that she can have as many as three or
four migraine headaches a week. Aplt. App., Vol. III at 275. She does take
medication for her migraines, and she testified it relieves the symptoms of her
migraine headaches all but two or three times a month.
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Id. at 275-77.
(N.D. Ind. 1995); Carlson v. InaCom Corp. , 885 F. Supp. 1314, 1320 (D. Neb.
1995); Dutton v. Johnson County Bd. of County Commrs
(D. Kan. 1994). Plaintiffs testimony does show some level of impairment, but
neither her testimony nor any medical evidence in the record characterize
plaintiffs migraines as causing significant functional impairment. Plaintiff did
state that some of her migraines can be so debilitating that she cannot get out of
bed and is sick to her stomach. She did not describe, however, any life activities
affected by her migraines. She testified only that she had to leave work at Elitch
early one day because of a migraine headache. Aplt. App., Vol. III at 276.
Thus, plaintiffs testimony does not show her migraines limit her ability
to engage in work or any other major life activity.
see also Agee v. Northwest Airlines, Inc.
(E.D. Mich. 2001) (holding plaintiffs migraines not a disability under the ADA
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because evidence showed migraines did not substantially limit his major life
activities). In order for the court to conclude that plaintiffs migraines
substantially limited her major life activity of working, she would have to show
that her migraines render her unable to work in a broad class of jobs.
Sutton ,
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