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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 Courtâs grant of
Patrick Industriesâ 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 Eshlemanâs âregarded asâ claim because his
impairment lasted less than six months and was therefore
âtransitory and minor.â As we explain in more detail below,
because the District Court did not conduct an independent
analysis into whether Eshlemanâs 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) (â[A]
judge ruling on a defendant's motion to dismiss a complaint
âmust accept as true all of the factual allegations contained in
the complaint.ââ) (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 physicianâs 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 âperformance issues.â 11
However, Eshleman reminded the Superintendent that his
performance review from early January 2016 had been
excellent, with all 4.5âs 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 âbehavioral issues.â 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
âperceived 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.â 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 âwas
unreliable, a liability, and unable to perform a wide range of
jobs.â 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: â(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.â 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 Depât, 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
âa physical or mental impairment that substantially limits one
or moreâ of their âmajor life activitiesâ; (2) have âa record of
such an impairmentâ; or (3) are âregarded as having such an
impairment.â 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 âregarded asâ claim if s/he
âestablishes 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.â 21 An
employer regards a person as disabled when it
âmisinterpret[s] information about an employeeâs limitations
to conclude that the employee is incapable of performingâ his
or her job requirements. 22 The ADA includes âregarded asâ
claims because being perceived as disabled âmay prove just
as disablingâ to a person as another type of physical or mental
impairment. 23
However, the ADA limits âregarded asâ claims by
excluding âimpairments that are transitory and minor.â 24
Accordingly, if the perceived disability is âtransitory and
minor,â a plaintiff cannot state a âregarded asâ 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 âtransitoryâ as âan impairment
with an actual or expected duration of 6 months or less,â but
does not define âminor.â 26 The District Court concluded that
the face of Eshlemanâs complaint fell within this exception
and therefore dismissed his suit under Federal Rule of Civil
Procedure 12(b)(6).
The District Court relied on âthe temporal proximity
between Mr. Eshlemanâs medical absences and his
terminationâŚto support an inference that Patrick Industries
regarded [him] as disabledâ and concluded that Eshleman
sufficiently pled a âregarded asâ 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 â[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) (âWhile 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
complaintâ) (internal citations omitted). Following the
EEOCâs lead, our caselaw has sometimes described the
limitation on âtransitory and minorâ impairments as an
âaffirmative defense.â 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.â 28
The Amended Complaint included additional
information about the nature and purpose of Eshlemanâs
medical leave but did not negate the transitory and minor
exception. Accordingly, the District Court granted Patrick
Industriesâ motion to dismiss the First Amended Complaint. 29
In doing so, it reiterated that Eshleman had pled a plausible
âregarded asâ claim. However, relying upon our decision in
Budhun v. Reading Hospital and Medical Center, 30 the
District Court held that Eshlemanâs alleged impairment was
objectively transitory and minor because âthe actual or
expected durationâŚlasted less than six months.â 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
impairmentâlung surgery to remove a nodule and test it for
cancerâwas 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 Eshlemanâs ADA
claim pursuant to 28 U.S.C. § 1331. Pursuant to 28 U.S.C. §
1291, we exercise plenary review of the District Courtâs grant
of a motion dismiss. See Finkelman v. Nat. Football League,
877 F.3d 504, 510 (3d Cir. 2017); Pearson v. Secây Depât 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 perceivedâdescribed in Eshlemanâs complaint as
âcontinuing medical issuesââwas transitory and minor. 34
We agree that the issue of whether an impairment is âminorâ
is a separate and distinct inquiry from whether it is
âtransitory.â We will therefore reverse and remand to the
District Court to consider whether Eshlemanâs 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 âa short and
plain statement of the claim showing the pleader is entitled to
relief.â 35 However, the complaint âmust contain sufficient
factual matter, accepted as true, to âstate a claim to relief that
is plausible on its face.ââ 36 A claim is plausible when the facts
alleged âallow[] the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.â 37
As noted earlier, the District Court held that Eshleman
pled sufficient facts to state a âregarded asâ claim under the
ADA. That determination is not challenged on appeal;
therefore, we address only whether Eshlemanâs 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
impairmentsâsurgery to remove a nodule from his lung and
a severe upper respiratory infectionâwere transitory because
they lasted less than six months, he argues that the District
Court was nonetheless required to separately evaluate
whether his impairment was âminor.â We agree.
In carving out âtransitory and minorâ impairments
from âregarded asâ claims, the ADA specifically defines
âtransitoryâ as âan impairment with an actual or expected
duration of 6 months or less.â 38 The ADA does not, however,
apply this definition to minor. While the statute is silent on
the meaning of âminor,â 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: âTo establish this defense, a covered entity
must demonstrate that the impairment is both âtransitoryâ and
âminor.â Whether the impairment at issue is or would be
âtransitory and minorâ is to be determined objectively.â 40
The regulations, like the statute, define âtransitoryâ as
âlasting or expected to last six months or lessâ but similarly
do not extend this definition to âminor.â 41 In addition, the
regulations refer to the time limitation as â[t]he six-month
âtransitoryâ part of the âtransitory and minorâ exception,â
making absolutely clear the distinction between âtransitoryâ
and âminor.â 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. (âFor purposes of this section, âtransitoryâ is defined as
lasting or expected to last six months or less.â).
42
29 C.F.R. § 1630.2 (j)(ix).
10
that âtransitoryâ is just one part of the two prong âtransitory
and minorâ exception.
The Equal Employment Opportunity Commissionâs
interpretive guidance provides further justification for treating
transitory and minor as separate and distinct components of
the âtransitory and minorâ exception. 43 The EEOC once again
states that the âtransitory and minorâ exception requires a
showing that the impairment is both transitory and minor, and
clarifies that the six-month time limit applies only to the
âtransitoryâ 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
âregarded asâ 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) (â[The ADA] explains that an
individual cannot be âregarded as having such an impairmentâ
if the impairment is both transitory (defined by the ADAAA as
lasting or expected to last less than six months) and minor.â).
In another section, the EEOC explains that âthe regulations
provide an exception to coverage under the âregarded asâ 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.â Id. at App. § 1630.2(I).
45
Id.
11
According to the EEOC, the minor back injury lasting longer
than six months is not âtransitory and minorâ because it meets
only the âminorâ 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 âtransitory
and minorâ exception.
Finally, excluding only impairments that are both
transitory and minor is consistent with Congressâ 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 âregarded asâ claims
under the ADA âCongress did not expect or intend that this
would be a difficult standard to meet.â 47 The Report further
explains that the âtransitory and minorâ exception was
intended to weed out only âclaims at the lowest end of the
spectrum of severity,â such as âcommon ailments like the
cold or flu,â and that the exception âshould be construed
narrowly.â 48 Treating transitory and minor as separate and
distinct elements is therefore consistent with the intent to
afford broad coverage under the âregarded asâ provision.
The District Court relied heavily on our decision in
Budhun to justify dismissing Eshlemanâs claim. However, the
District Courtâs analysis improperly conflated âtransitoryâ
and âminorâ by mechanically applying the six-month
limitation for âtransitoryâ claims to the definition of
46
H.R. Rep. No. 110â730 pt. 2, at 5 (2008) (âThe purpose of
[the ADAA] is to restore protection for the broad range of
individuals with disabilities as originally envisioned by
Congressâ).
47
Id. at 17.
48
Id. at 18.
12
âminor.â 49 In Budhun, we held that an employeeâs 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 âânot
as fast as [she] used to . . .ââ 52 Her treating physician initially
estimated that Budhunâs âperiod of incapacity [would be]
â08/02/10 â 08/16/10ââ or fourteen days. 53 Thus, on its face,
given Budhunâs own account of her injury and request for
leave and her physicianâs 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, âa
broken bone in her hand and nothing more,â 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 (â[T]he actual or expected duration of Mr. Eshlemanâs
impairment lasted less than six months making it transitory and
minor.â); Resp. Br. at 9 (âTransitory and minor impairments
are defined as those with an expected duration of six months or
less.â).
50
Budhun, 765 F.3d at 259-60.
51
Id. at 248.
52
Id.
54
Id. at 249.
54
Id. at 259-60.
13
âactual or expected duration of six months or lessâ is
necessarily âtransitory and minor,â the discussion must be
viewed in the context of Budhunâs 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
âregarded asâ claims.
Consequently, the District Court erred by not
considering whether Eshelmanâs impairment was objectively
minor separately from whether it was transitory. The term
âminorâ 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 necessaryâas 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 âtransitory.â Because even
minimally invasive lung surgery is still thoracic surgery, more
than likely requiring inpatient care, it is plausible that
Eshlemanâs lung surgery was non-minor.
Moreover, Eshlemanâs case is further distinguishable
from Budhun, because there it was âabundantly clear that [the
employer] considered Budhun to have a broken bone in her
hand and nothing more.â 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 â[n]owhere in the complaint does Budhun allege that [her
employer] thought her injury was anything other than a
broken fifth metacarpal.â 57 Eshlemanâs complaint, on the
other hand, alleges that it was the lung surgery coupled with a
severe respiratory infection â close-in-time ailments affecting
the same system of the body â 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 Courtâs contention that ânowhere
does Mr. Eshleman plead Patrick Industries understood his
impairment to be anything other than a one-time surgery . .
.â 59 Eshlemanâs 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
âa one-time surgeryâ 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
Eshlemanâs 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 Eshlemanâs lung surgery were âtransitory and minor,â 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 âtransitoryâ and âminor.â 62 In
60
See 29 C.F.R. Pt. 1630, App. at § 1630.2(I) (2016) (â[A]n
employer that terminated an employee with an objectively
âtransitory and minorâ hand wound, mistakenly believing it to
be symptomatic of HIV infection, will nevertheless have
âregardedâ 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
âtransitory and minor.â); see also H.R. Rep. No. 110â730 Pt. 2,
at 17 (2008) (âThis third, âregarded as,â prong was meant to
express Congressâs 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.â).
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) (âTo 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.â); 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 âtransitory,â
whereas the statute leaves âminorâ undefined. 63 There, the
Seventh Circuit found that âa heart condition severe enough
to require triple bypass surgeryâ was not on its face both
transitory and minor. 64 Consistent with the language and
fifteen weeks of medical leave for spinal surgery âfalls short
of the six months necessary to show an injury is not
objectively âtransitory and minorâ . . .â); Weisel v. Stericycle
Commc'ns Sols., No. 3:13-CV-3003, 2015 WL 390954, at *10
(M.D. Pa. Jan. 28, 2015) (âPlaintiff's release to return to work
two weeks after surgery is evidence that her condition was
minor and of limited duration.â); 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 âtransitory and minorâ because â[t]here
is no evidence that anyone . . . expected the duration of any
impairment to be more than six months . . . â); 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 âtransitory and minorâ
because plaintiff âhas not offered any evidence to indicate
that the actual or expected duration of his surgery
recuperation was greater than sixth months . . .â).
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 â[t]he regulations and
EEOC guidance indicate that âtransitoryâ and âminorâ are
separate and distinct requirementsâ and holding that â[e]ven
17
intent of the ADA and its implementing regulations, the Court
treated âtransitoryâ and âminorâ as separate and distinct
inquiries required to meet the âtransitory and minorâ
exception to âregarded asâ claims. 65
assuming that [plaintiff]'s perceived shoulder injury was
transitory, [defendant] has not conclusively shown that it was
minorâ 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, â[t]hat does not end the inquiry. . . . as
Defendant must also show that [plaintiffâs] impairment was
minor.â); Davis v. Vermont, Depât of Corr., 868 F. Supp. 2d
313, 327 (D. Vt. 2012) (âIn 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.â); Mayorga v.
Alorica, Inc., No. 12-21578-CIV, 2012 WL 3043021, at *9
(S.D. Fla. July 25, 2012) (declining to dismiss plaintiffâs
claim based on pregnancy complications as âtransitory and
minorâ because whether the impairment âwas âminorâ
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]âs impairment was minor.â).
65
Silk, 795 F.3d at 706-07.
18
Here, especially at the pleading stage, Eshlemanâs
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
Courtâs judgment dismissing Eshlemanâs regarded as claim
under the ADA and remand for further proceedings consistent
with this opinion.
19