Ridgely v. Montgomery County

DEBORAH S. EYLER, Judge. The Circuit Court for Montgomery County granted summary judgment in favor of Montgomery County, the appellee, in an employment discrimination action based on disability brought by Donald Ridgely, the appellant. The appellant poses five questions for our review, which we have consolidated into one: Was the circuit court’s decision to grant summary judgment legally incorrect? 1 For the following reasons, we answer “no” to this question and shall affirm the judgment of the circuit court. ²¹⁹ FACTS AND PROCEEDINGS On October 6, 1980, the appellant was hired as a firefighter by the Montgomery County Department of Fire and Rescue Services (“the Department”). He was promoted several times and in 1990 attained the rank of Fire/Rescue Captain.

The appellant’s duties as a captain included supervising shifts at the fire station, responding to fire and rescue incidents, assuming command of fire/rescue personnel at the incident scene, supervising fire investigations, repairing or overseeing repairs to the station, conducting employee training and evaluations, driving rescue vehicles, and providing administrative support to the Department. The position required periods of strenuous physical effort, such as scaling ladders while carrying 60 to 65 pounds of equipment, operating heavy equipment, and being exposed to extreme environments. The Department requires firefighters to undergo annual medical examinations to ascertain their fitness for duty. The examinations are performed by doctors employed by Montgomery County’s Fire and Rescue Occupational Medical Services (“OMS”).

Upon performing a fitness examination, the examining doctor completes a “Health Status Report,” which states whether the employee can perform full duties. The report discloses whether the employee has any medical impairments. The doctor indicates by boxes on the report any work restrictions he considers appropriate. The report is submitted to the Department, which makes the final decision about fitness and work restrictions.

Ordinarily, the Department accepts the recommendations of OMS. In February of 1997, the appellant began falling asleep during the day. He would fall asleep while driving, while performing sedentary activities, and once while driving his riding lawn mower. A few months later, the appellant noticed that his knees would buckle and his eyes would flutter when he laughed.

He discussed these problems with his personal physician, who recommended sleep studies. A sleep study conducted in the fall of 1997 revealed that the appellant had ²²⁰ narcolepsy. He was then referred to a neurologist, Dr. Marc Raphaelson, for additional care. The appellant did not notify anyone at the Department of his condition or these developments.

In February of 1998, Dr. Raphaelson diagnosed the appellant with narcolepsy and related cataplexy and prescribed several medications. 2 The appellant immediately reported his diagnosis and the medications to the Department. He also gave the Department a “Medical Evaluation of Work Status Form” signed by Dr. Raphaelson. It stated that the appellant was qualified “to work in FULL DUTY status, without physical restriction.” On April 13, 1998, the appellant returned to Dr. Raphaelson for re-evaluation. He reported that his cataplexy had worsened, particularly when he played tennis or laughed, and that he required more medicine to remain awake.

Dr. Raphaelson adjusted the appellant’s medications. In his office note, Dr. Raphaelson wrote that the diagnosis was “narcolepsy with cataplexy that is poorly controlled.” The appellant saw Dr. Raphaelson for follow up on May 19. He reported that his cataplexy had significantly improved since his last visit, and that his knees did not buckle when he laughed. However, he felt “somewhat sleepy when driving to work.” In his office note, Dr. Raphaelson wrote that the appellant’s narcolepsy with cataplexy was “well-controlled.” On November 16, the appellant reported to Dr. Raphaelson that he often had difficulty driving to work due to sleepiness, and that his eyes fluttered and his knees buckled when he laughed.

If he found a movie “tremendously funny” he would “literally become paralyzed.” He was not bothered by sleepi ²²¹ ness or by cataplexy at work, however. Dr. Raphaelson adjusted the appellant’s medications. In his office note, he wrote that the appellant’s condition was “under better but incompléte control.” The appellant’s next visit to Dr. Raphaelson was about a year later, on November 23, 1999. He reported that he continued to have cataplexy with a vigorous laugh.

He complained of side effects from the medications. Dr. Raphaelson adjusted the appellant’s medications and noted that the appellant’s condition was “improved.” The appellant next saw Dr. Raphaelson on June 12, 2000. He reported that he was continuing to experience cataplexy upon laughing very hard. He would have to hold onto a pole or a wall when that happened to maintain his balance.

He complained of side effects from the medications and of anxiety. Dr. Raphaelson adjusted the appellant’s medications. In his office note, Dr. Raphaelson stated that the appellant’s narcolepsy with cataplexy was “improved on current treatment.” In a follow-up appointment on June 26, the appellant complained to Dr. Raphaelson that he was “collapsing constantly.” Dr. Raphaelson again adjusted the appellant’s medications. By April 18, 2001, when the appellant returned to Dr. Raphaelson, his condition was “essentially stable.” He reported that his knees still got weak when he laughed, but he did not collapse.

Dr. Raphaelson recommended that he continue his current medications. In a follow-up visit on August 7, 2001, the appellant reported that his cataplexy was mild, and worse when he laughed. He continued to suffer from anxiety. Dr. Raphaelson adjusted his medications.

On October 30, 2001, the appellant reported to Dr. Raphael-son that he was falling asleep while doing paperwork and that his cataplexy was “still there, not real, real bad.” Dr. Raphaelson concluded that the appellant’s condition was “stable at moderately improved level,” and again adjusted his medications. ²²² On February 6, 2002, the appellant reported to Dr. Raphael-son that his condition was “stable or improved” and that it did not “affect him at work.” In 1998, 1999, 2000, and 2001, while under Dr. Raphaelson’s care, the appellant passed his annual fitness examinations. On April 6, 2002, Dr. Francis J. Von Feldt, an employee of OMS, performed the appellant’s annual fitness examination for that year. This was the first time Dr. Von Feldt performed the appellant’s annual examination. After performing the examination, Dr. Von Feldt submitted an inquiry to Dr. Raphaelson for more detailed information about the appellant’s condition.

Specifically, Dr. Von Feldt asked Dr. Raphaelson to provide a summary report of the appellant’s narcolepsy and related cataplexy and to make recommendations about medical work restrictions. Dr. Von Feldt completed a “Health Status Report,” placing the appellant on no duty status pending receipt of Dr. Raphaelson’s report. Dr. Raphaelson prepared a summary report dated April 15, 2002. On April 24, the appellant met with Dr. Von Feldt and gave him Dr. Raphaelson’s summary report.

In it, Dr. Raphaelson recommended no work restrictions. Dr. Raphaelson described the appellant’s condition as follows: He has responded well to medication treatment for narcolepsy. ... [The appellant] has had occasional episodes when his knees would buckle, lasting for 10-15 seconds, associated with episodes of laughing or other stimuli. These events, at their peak, occurred up to six or seven times per week, and have diminished greatly during appropriate medication treatment. Over the last three months, for example, the patient has had approximately one similar episode, and it did not occur while working.

Since starting treatment in 1998, the patient has had no episodes when he was unable to perform job-related duties. [The appellant] has some leeway in use of his medications for narcolepsy, and he takes higher doses of medicines ²²³ during very long work shifts. There have been no episodes of sleep initiation interfering with work or leisure. Dr. Raphaelson also suggested that the County perform a “maintenance of wakefulness test,” to document the appellant’s ability to stay awake, providing the County had a policy in place "with guidelines for study interpretation. 3 On May 1, Dr. Von Feldt performed a follow-up examination of the appellant and filled out a “Health Status Report.” Dr. Von Feldt concluded that the appellant should remain on no duty status. Dr. Douglas Robinson, another physician at OMS, attended the examination.

On May 6, 2002, Dr. Von Feldt sent a memorandum to Dr. Robinson about the appellant’s condition. He described the appellant’s symptoms, noting that he had “severe somnolence since February, 1997,” and had experienced episodes of cataplexy six to seven times per week in the form of knee buckling lasting ten to fifteen seconds at a time. Dr. Von Feldt further stated that the appellant took his medication “variably, based on subject considerations, not precisely as prescribed.” Dr. Von Feldt felt these symptoms “represented] a well-documented, proximate threat to self, coworkers and the public.” Dr. Von Feldt also noted in his May 6 memorandum that the appellant’s symptoms implicated the National Fire Protection Association 1582, Standard on Medical Requirements for Fire Fighters and Information for Fire Department Physicians (“NFPA Standard”). Under paragraph 3-13.3(b) of that standard, the appellant’s condition was a “Category B Medical Condition,” analogous to a “seizure disorder.” 4 Dr. Von Feldt ²²⁴ concluded on that basis that the appellant should not be allowed to operate County vehicles or work on scaffolding, ladders, roofs, or any other unprotected areas above ground or floor level.

On May 8, Dr. Von Feldt again wrote to Dr. Robinson, to report the substance of a discussion he had had with Dr. Raphaelson about the appellant’s suitability for full duty. Dr. Raphaelson had recommended that the County compile work reports, solicited from other employees, and that he perform a maintenance of wakefulness test on the appellant. On May 14, Dr. Von Feldt performed another examination of the appellant and completed a “Health Status Report,” in which he recommended that the appellant be placed on light duty status. On that status, the appellant would be restricted from working at above floor level heights and from operating County vehicles.

The appellant began working on light duty status at the end of May 2002. He received his regular pay. On May 21, Dr. Raphaelson completed a “Medical Evaluation of Work Status” form for the appellant, stating that he was qualified to work on full duty status. On July 11, Dr. Robinson wrote to Roger Strock, Chief of the Department, recommending that the appellant remain on light duty status.

Dr. Robinson opined that the appellant’s chronic medical condition was “not acceptable” under the NFPA Standard. On September 23, at the request of the Department, Dr. Robinson wrote to the appellant to summarize his reasons for rendering a final determination of “not acceptable.” Dr. Robinson explained: I have determined that your cataplexy, which is not fully controlled despite the use of several prescription medications and regular follow-up visits with your neurologist, ²²⁵ poses a significant and immediate threat to you, your fellow fire-and-rescue members and the public being served during fire and rescue operations. Your cataplexy is of an unpredictable nature. An attack can occur at any time.

Sudden loss of control of your muscles for even a few seconds can be disastrous during the rapid, physically demanding pace of fire-and-rescue operations. (Emphasis in original.) Dr. Robinson gave two hypothetical situations in which the appellant’s condition could be dangerous: 1) You are involved in an aerial rescue on a ladder seventy feet from ground level, carrying a victim down to safety. Your legs buckle due to your cataplexy, causing both you and the victim to fall to your deaths. 2) You are driving any of the forty ton-plus emergency vehicles in operation. You lose control of your legs due to your cataplexy and, so, lose control of the emergency vehicle.

This unpredictable circumstance involving a forty ton-plus emergency vehicle out of control causes significant injury or death to you and to members of your fire-and-rescue team and the public. On October 30, Chief Strock wrote to the appellant informing him that, in light of OMS’s recommendation, “you are no longer medically qualified to perform your job as a Fire/Rescue Captain.” Chief Strock continued: [I]t is necessary to inform you that you cannot continue working in a position for which you are not qualified. Several options are available to employees who are medically unfit to perform the job for which they were hired. Such employees can apply for service-connected disability retirement or non-service-connected disability retirement.

Employees can also resign, apply for an early or normal retirement (if eligible), or seek alternative placement in a different County job that they are medically able to perform .... Your position as a Fire/Reseue Captain is vital to the delivery of fire and rescue services to the public. The need and demand for those services requires that the incumbent ²²⁶ of the position be medically able to perform. Therefore, if you do not diligently pursue one of the aforementioned options within the time periods specified herein, [the Department] will begin the process to terminate your employment.

Despite Chief Strock’s letter, the appellant was not forced to retire, and continued working on light duty status. On November 6, the appellant returned to Dr. Raphaelson for a follow-up visit. Dr. Raphaelson noted that the appellant’s narcolepsy with related cataplexy was “subjectively stable and improved since May.” 5 In the meantime, the appellant retained counsel. On November 12, he wrote to Dr. Raphaelson, asking him to give his lawyer a complete report of his condition and a signed copy of a “Medical Evaluation of Work Status” form stating he is able to return to full duty status.

The appellant instructed Dr. Raphaelson to state in his report that the appellant’s knees only buckled when he laughed hysterically, that he had only experienced one episode of cataplexy in the past ten months while on medication, and that the duration of the episode was only one second. Dr. Raphaelson responded by report dated November 13, 2002, opining that he did not consider the appellant “to be a significant risk to his health or safety,” and that he was not aware of any limitations “preventing [him] from performing a position of fire/rescue captain.” On November 20, Dr. Raphaelson completed a “Medical Evaluation of Work Status” form, stating that the appellant was qualified to work in full duty status. The next day, November 21, 2002, the appellant filed a “Charge of Discrimination” with the Montgomery County ²²⁷ Office of Human Rights. He alleged discrimination by the County in placing him on light duty status.

On February 7, 2003, in the Circuit Court for Montgomery County, the appellant filed suit against the County, alleging disability discrimination, in violation of Article 1, Chapter 27 of the Montgomery County Code (2001 ed.) (“MCC”). Specifically, he alleged that the County was “regarding [him] as ... disabled]” because of his narcolepsy and related cataplexy, and was unlawfully discriminating against him on that basis. 6 He asked for back and front pay, compensatory damages, costs, attorney’s fees, and reinstatement as a Fire/Rescue Captain on full duty status. He demanded a jury trial. The County filed a timely answer.

In the meantime, on February 13, Dr. Von Feldt wrote to the appellant, stating he wanted to give the appellant “every opportunity to establish that [he could] safely perform all duties of [a] firefighter,” and noting that Dr. Raphaelson had certified the appellant for full duty, but further stating that the neurologists’s records “clearly document both cataplexy and sleep problems.” Dr. Von Feldt asked the appellant to have Dr. Raphaelson answer several questions, including whether the appellant’s condition was “substantially controlled” and if the appellant was capable of working at heights and operating heavy vehicles. 7 Two months later, on May 6, the appellant returned to Dr. Raphaelson for a follow-up appointment. Dr. Raphaelson ²²⁸ noted that the appellant’s narcolepsy with cataplexy was “well-controlled” and that the appellant “continue[d] to do well.” On July 2, Dr. Raphaelson wrote a letter to Dr. Craig Thorne, an independent contractor working for OMS, stating that the appellant was “capable of safe operation of heavy vehicles” and “capable of safe performance of duty while working at heights.” On July 8, Dr. Raphaelson spoke to Dr. Thorne, telling him that the appellant’s symptoms were “rare and mild episodes of knee buckling only’ and that he believed the appellant was not significantly at risk of harm, even with full firefighter duties. The next day, Dr. Thorne performed a “follow-up medical evaluation” of the appellant. Dr. Thorne concluded that the appellant’s narcolepsy and related cataplexy were “well-controlled.” He reported the following recommendations: 1. [The appellant] appears not to be at significant risk with regard to his well-controlled narcolepsy and cataplexy.

Although I cannot fully guarantee his safety, because of his current level of control and his only infrequent symptoms of knee buckling on occasion, provoked by laugher, and no indication that this affects his ability to perform his essential job functions, I would recommend that he is medically fit for full duty. 2. However, I would also recommend that he report to the clinic: 1. Immediately for any symptoms of alteration in level of consciousness and/or any loss of motor control, so that his personal safety in his job (and the safety of others) can be addressed, and 2. Any changes in his medications (to ensure no adverse side effects that may interfere with job performance). 3.

He should continue to follow-up with his treating neurologist. I would recommend a twice-yearly evaluation and a letter from the neurologist attesting to the stability of his symptoms and his work capability. (Emphasis in original.) On August 1, Dr. Von Feldt wrote to Thomas Carr, the new Chief of the Department, stating that he had found the ²²⁹ appellant to be “Medically Acceptable with Qualifications.” Dr. Von Feldt recommended a transition period of three months, during which the appellant would avoid working at heights and driving County vehicles. The appellant returned to full duty status on October 5, 2003.

As part of discovery, the appellant, Dr. Robinson, Dr. Raphaelson, and Dr. Von Feldt, among others, were deposed in January and February of 2004. The County moved for summary judgment on March 5, 2004, on the ground that, on the undisputed material facts, the appellant could not show he was regarded as disabled by the County. Specifically, the County argued that the appellant was not regarded as disabled because the County 1) placed him in another position; and 2) only regarded him as unable to work in one job — that of firefighter — and not as unable to engage in the major life activity of working. The County asserted further that it was justified in maintaining high fitness standards for its firefighters, as necessary to protect the public, and that it had acted prudently to assess whether, by continuing in his position at full duty, the appellant was posing a direct threat to himself or others. 8 The appellant filed a timely opposition to the County’s motion and request for a hearing.

In his supporting memorandum of law, he argued that he had satisfied the prima facie case for discrimination. He argued that he could present evidence to establish that: (1) the County regarded him as substantially limited in the major life activities of working, maintaining consciousness, maintaining motor control, and maintaining balance, due to his narcolepsy, and cataplexy, and hence regarded him as disabled; 2) he was qualified for his position and was not a direct threat because he had not experienced any incidents of cataplexy or narcolepsy while on ²³⁰ the job; and 3) he was prohibited from serving in the position of Fire/Rescue Captain due to his narcolepsy and cataplexy. 9 The County filed a reply memorandum. It argued that maintaining motor control, maintaining consciousness, and maintaining balance are not major life activities within the meaning of disability law. Alternatively, even if these activities are major life activities, the County did not regard the appellant’s narcolepsy and cataplexy as substantially limiting them.

The County also asserted that firefighting is not a class of jobs, and thus the appellant could not prove he was regarded as being substantially limited in the major life activity of working. A hearing on the County’s motion was held on May 6, 2004. At the conclusion of the hearing, the court found that there were no material facts in dispute and that the County was entitled to judgment as a matter of law. The court issued a brief written order granting summary judgment on May 11, 2004.

The appellant noted a timely appeal. STANDARD OF REVIEW We review a circuit court’s decision to grant summary judgment de novo, as it is a purely legal decision. Livesay v. Baltimore County, 384 Md. 1, 9 , 862 A.2d 33 (2004); Nesbit v. Govt. Employees Ins.

Co., 382 Md. 65, 72 , 854 A.2d 879 (2004). We determine whether the circuit court properly concluded that there was no dispute of material fact, and if so, whether the circuit court’s decision that the moving party was entitled ²³¹ to summary judgment was legally correct. See Md. Rule 2-501(f); Johnson v. Mayor and City Council of Baltimore City, 387 Md. 1, 5 , 874 A.2d 489 (2005); Coroneos v. Montgomery County, 161 Md.App. 411, 422 , 869 A.2d 410 (2005). DISCUSSION (a) An iteration of the law of disability discrimination is necessary before we discuss the issues on appeal.

The appellant alleges that he was discriminated against on the basis of a disability, in violation of Article 1, Chapter 27 of MCC. MCC section 27-19(a) provides, in relevant part, that, “because of the .. . disability of a qualified individual, or because of any reason that would not have been asserted but for the ... disability,” an employer 10 may not: (A) fail or refuse to hire, fail to accept the services of, discharge any individual, or otherwise discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment; or (B) limit, segregate, or classify employees in any way that would deprive or tend to affect adversely any individual’s employment opportunities or status as an employee. The MCC also defines “disability” as “a physical or mental impairment that substantially limits one or more of an individual’s major life activities, a record of having such an impairment, being associated with an individual with a disability, or being regarded as having such an impairment.” MCC § 27-6(c). 11 ²³² Moreover, Chapter 27 of the MCC is modeled after the Americans with Disabilities Act (“ADA”), which is codified at 42 U.S.C. § 12101 et seq. 12 See MCC § 27-1 (b) (“The prohibitions in this article are substantially similar, but not necessarily identical, to prohibitions in federal and state law.”); Cohen v. Montgomery County Dept. of Health and Human Services, 149 Md.App. 578, 591 , 817 A.2d 915 (2003) (relying on decisions interpreting the ADA to interpret provisions of Montgomery County’s discrimination law). The ADA definitions of “disability” and “qualified individual with a disability” are almost identical to definitions of those terms under the MCC.

See 42 U.S.C. §§ 12102 (2), 12111(8). Indeed, both parties agree that we can look to federal decisions interpreting the ADA for guidance in interpreting the MCC. The prima facie case for disability discrimination is three-pronged. An individual must show: (1) he has a disability within the meaning of the MCC (or ADA); (2) notwithstanding the disability, he was otherwise qualified for the employment or benefit, with or without “reasonable accommodation” 13 ; and (3) he was excluded from the employment or benefit solely on the basis of his disability.

E.g. Martinson v. Kinney Shoe Corp., 104 F.3d 683, 686 (4th Cir.1997); Doe v. Univ. of Maryland Med. Sys. Corp., 50 F.3d 1261, 1264-65 (4th Cir.1995). 14 ²³³ In Bragdon v. Abbott, 524 U.S. 624 , 118 S.Ct. 2196 , 141 L.Ed.2d 540 (1998), the Supreme Court articulated a three-step analysis for evaluating the first prong of the prima facie case for disability discrimination.

The first consideration under the analysis is whether the plaintiff has a physical or mental impairment. 524 U.S. at 631 , 118 S.Ct. 2196 . Second, the court must identify a major life activity that might be limited by the impairment. Id. Finally, the court must consider whether the impairment .substantially limits that major life activity.

Id. A “physical or mental impairment” under the MCC is “(A) any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive, digestive, genito-uninary; hemic and lymphatic; skin; and endocrine; or (B) any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.” MCC § 27 — 6(c). In the instant case, it is undisputed that the appellant’s narcolepsy and cataplexy constitute “impairments” within the meaning of the MCC. ²³⁴ The term “major life activities” also has been defined by the MCC. 15 See MCC § 27-6(r). The term refers to “those activities that are of central importance to daily life,” Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184, 197 , 122 S.Ct. 681 , 151 L.Ed.2d 615 (2002), that “ ‘the average person in the general population can perform with little or no difficulty.’ ” Rohan v. Networks Presentations LLC, 375 F.3d 266, 274 (4th Cir.2004) (quoting Pack v. Kmart Corp., 166 F.3d 1300, 1305 (10th Cir.1999)).

Major life activities include, but are not limited to, the following functions: “caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” MCC § 27-6(r); Toyota, supra, 534 U.S. at 195 , 122 S.Ct. 681 (citing 45 C.F.R. § 84.3 (j)(2)(ii)); Bragdon, supra, 524 U.S. at 638-39 , 118 S.Ct. 2196 . In the instant case, the appellant has identified the following as major life activities affected by his impairments: working; maintaining consciousness; maintaining motor control; and maintaining balance. 16 The third step in the analysis is to determine whether the impairment substantially limits the asserted major life activities. Neither the ADA nor the MCC has defined the term “substantially limits.” However, the Equal Employment Opportunity Commission (“EEOC”) 17 has codified regulations ²³⁵ interpreting the term “substantially limits” as, inter alia, “[u]nable to perform a major life activity that the average person in the general population can perform”; or “[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)(l)(ii); Sutton, supra, 527 U.S. at 480, 119 S.Ct. 2139 (citing favorably these regulations); Colwell v. Suffolk County Police Dept., 158 F.3d 635, 643 (2nd Cir.1998) (same). Moreover, the Supreme Court has explained that an impairment that “interfere[s] in only a minor way with the performance of [a major life activity]” does not “qualify[ ] as [a] disability].” Toyota, supra, 534 U.S. at 197 , 122 S.Ct. 681 .

Cf. Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555, 565, 119 S.Ct. 2162 , 144 L.Ed.2d 518 (1999) (explaining that a “mere difference” cannot amount to a “significant restriction]” and thus cannot satisfy the ... interpretation of “substantially limits”). 18 ²³⁶ In determining whether an impairment is “substantially limiting,” the EEOC and the Supreme Court have suggested that the following factors are to be considered: “[t]he nature and severity of the impairment; [t]he duration or expected duration of the impairment; and [t]he permanent or long-term impact, or the expected permanent or long-term impact of or resulting from the impairment.” Toyota, supra, 584 U.S. at 196, 122 S.Ct. 681 (quoting 29 C.F.R. § 1630.2 (j)(2)(i)-(iii)); see also Colwell, supra, 158 F.3d at 643 . In the case at bar, the appellant argues that he meets the first prong of the prima facie case for disability discrimination — that he has a disability within the meaning of the MCC — because the County “regarded [him] as” disabled. Under the MCC, an individual can show that he was “regarded as” having a disability in one of three ways.

See 45 C.F.R. § 84.3 (j)(2)(iv). In the instant case, the appellant has chosen the first of these three ways: that he is “regarded as” having a disability because the County mistakenly believed that an actual physical or mental impairment of the appellant’s substantially limits one or more of his major life activities. Id. See also Sutton, supra, 527 U.S. at 489, 119 S.Ct. 2139 (noting that one way an individual can satisfy the “regarded as” definition of disability under the ADA is by showing that the covered entity “mistakenly believes that [he] has a physical impairment that substantially limits one or more major life activities”); Bragdon, supra, 524 U.S. at 631 , 118 S.Ct. 2196 .

It is important to bear in mind that the MCC and the ADA were designed to “ ‘assure[ ] that truly disabled, but genuinely capable, individuals will not face discrimination in employment because of stereotypes about the insurmountability of their handicaps.’ ” Halperin, supra, 128 F.3d at 200 (quoting Forrisi v. Bowen, 794 F.2d 931, 934 (4th Cir.1986), which interpreted the Rehabilitation Act, on which the ADA is based). Accordingly, “if the statutory protections available to those truly handicapped could be claimed by anyone whose disability was minor and whose relative severity of impairment was ²³⁷ widely shared[,]” the purpose of the ADA and MCC would be frustrated. Forrisi, supra, 794 F.2d at 934 . The caselaw setting forth the requirements for satisfying the “regarded as” prong of a disability discrimination claim, discussed above, adhere to and reflect this purpose.

Indeed, the prima facie case is designed to distinguish between a situation in which an individual is in fact being “regarded as disabled within the meaning of the ADA” and a situation in which an employer has merely deemed an individual “unqualified for a particular job because of a limiting physical [or mental] impairment,” as the latter is not actionable under the ADA. Schuler v. SuperValu, Inc., 336 F.3d 702, 705-06 (8th Cir.2003) (internal quotation marks omitted). On these two different situations, the Supreme Court has explained: By its terms, the ADA allows employers to prefer some physical attributes over others and to establish physical criteria. An employer runs afoul of the ADA when it makes employment decisions based on a physical or mental impairment, real or imagined, that is regarded as substantially limiting a major life activity.

Accordingly, an employer is free to decide that physical characteristics or medical conditions that do not rise to the level of an impairment — such as one’s height, build, or singing voice — are preferable to others, just as it is free to decide that some limiting, but not substantially limiting, impairments make individuals less than ideally suited for a job. Sutton, supra, 527 U.S. at 490-91, 119 S.Ct. 2139 (emphasis added). Moreover, when an employer has valid requirements in place that employees must meet and the employer fails to hire or keep an employee who does not meet these requirements, such a situation “does not establish a claim that [the employer] regards [the person who does not meet the requirements] as being substantially limited in [a] major life activity.” Id. at 490, 119 S.Ct. 2139 . To best explain this concept, a discussion of Deas v. River West, L.P., 152 F.3d 471 (5th Cir.1998), is instructive. ²³⁸ Deas applied for a position as an “Addiction Technician” in a substance abuse program. 152 F.3d at 474 .

On a health history questionnaire, she disclosed that she suffered from “epilepsy (fits, seizures)” in the past. Id. She was approved for hire. Within a few weeks on the job, while she was still in the employee orientation program, Deas had a seizure.

Dr. Dixon, the medical doctor of the substance abuse program, witnessed the seizure and described Deas as becoming “verbally unresponsive and seem[ing] to lose awareness of her surroundings for a brief time.” Id. Dr. Dixon noted that the seizure lasted “only a few seconds.” Id. That same day, Dr. Dixon was approached by another employee of the program, who said he saw Deas have a seizure lasting “several minutes,” during which she “appeared to lose all awareness of her surroundings and was verbally uncommunicative.” Id. On this evidence, Dr. Dixon concluded that Deas would not be able to satisfy her duties as an addiction technician and discharged her.

Dr. Dixon told Deas that she was being fired because of her seizures. Deas filed suit against the program, alleging that Dr. Dixon violated the ADA because she regarded Deas as disabled when she discharged her because of the seizures. The United States District Court for the Middle District of Louisiana granted summary judgment for the employer. On appeal, noting that it was uncontested that Deas’s seizures constituted an impairment and that Dr. Dixon had terminated Deas’s employment because of the seizures, the United States Court of Appeals for the Fifth Circuit explained: [T]he question on this appeal boils down to whether Deas produced sufficient evidence for a reasonable trier of fact to find that Dr. Dixon perceived her seizures as constituting a substantially limiting impairment.

In other words, to have made a prima facie showing of disability, Deas must have produced sufficient evidence for a reasonable trier of fact to conclude that Dr. Dixon perceived her as having an ‘impairment’ and that this impairment, if it existed as perceived by ²³⁹ Dr. Dixon, would have substantially limited one or more of Deas’s major life activities. Id. at 476 (internal footnote omitted) (emphasis in original). The court then reviewed Deas’s arguments on this issue. Pertinent to the instant appeal, Deas argued that because Dr. Dixon perceived Deas as suffering from seizures, she also must have regarded her as substantially limited in the major life activities of seeing, hearing, and speaking; accordingly, her discharge was based “solely on [Dr. Dixon’s] perception that[,] in the event of a seizure, [she] would be unable to see, hear, or speak to the patients or other workers[.]” Id. at 479 .

The court noted that Deas offered no other evidence that Dr. Dixon regarded her as substantially limited in the major life activities of seeing, hearing, and speaking. The court found that on this evidence, as a matter of law, Deas did not show that Dr. Dixon regarded her as “ ‘[significantly restricted as to the condition, manner[,] or duration’ ” under which she could see, hear, or speak. Id. at 480 (quoting the definition of “substantially limits” in 29 C.F.R. § 1630.2 (j)(l)). The court explained that Deas’s evidence, at most, showed that, when Deas experienced a seizure, Dr. Dixon perceived her as limited in her ability to see, hear, and speak for “a few seconds,” which was not a “significant restriction” as to the “condition, manner, or duration” under which Deas could “see, hear, and