S.D. Tex.: Under ADAAA, Plaintiff With Relapsing Remitting Multiple Sclerosis Overcomes Summary Judgment on Disability Question

Last week, in Carbaugh v. Unisoft International, Inc., 2011 WL 5553724 (S.D. Tex., Nov. 15, 2011), Judge Sim Lake concluded that a plaintiff with "relapsing remitting multiple sclerosis," which flared up approximately four times per year, requiring the plaintiff to receive treatment at home for a week each time, presented sufficient evidence to overcome summary judgment on the question whether he had a disability under the ADA. In this case involving post-ADA-Amendments-Act conduct, Judge Lake relied on the ADAAA's provision that "[a]n impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.” 42 U.S.C. § 12102(4)(D).  This issue would likely have gone the other way under pre-ADAAA law, as a number of cases cited by the defendant in this case demonstrate.  Nonetheless, Judge Lake granted summary judgment for the defendant; Judge Law concluded that the plaintiff had failed to present sufficient evidence to create a triable issue that he was discriminated against or denied accommodation.