The essential principle undergirding each of the four
precedents above is that disability is to be evaluated in its
mitigated, rather than untreated state. When the Court first
decided defendants' motion for summary judgment, plaintiff urged
the Court to consider plaintiff in her unmitigated state. The
Court held then that plaintiff was not disabled, and granted
summary judgment in defendants' favor. The Court of Appeals'
remand instructions now require the Court to consider whether, in
her mitigated state, plaintiff suffers from a disability. I hold
once again that she does not.
In an affidavit, plaintiff's treating physician averred that
"Ms. Popko's idiopathic epilepsy has been, and will continue to
be, successfully controlled and treated through the proscription
of activities that disrupt her sleep-wake cycle." (Aff. of Dr.
Jeffrey Tolan, Pl.'s App. of Ex's [Vol. 1], Ex. 5, ¶ 7).
Likewise, Ms. Popko's own affidavit specifies that she has not
had a medically treated grand mal seizure since 1973, and has
only had one other grand mal seizure which took place sometime
between 1975 and 1980. (Pl.'s Aff., Pl.'s App. in Opp. to Defs'
Summ.J.Mot., Ex. 6, ¶ 3). Even when plaintiff does not treat her
epilepsy by getting a regular night's sleep, she experiences at
most, a generalized shakiness in the morning which resolves
itself relatively quickly. (Id.) In view of this evidence, I
find that Ms. Popko is like the plaintiffs in the trilogy of
Supreme Court cases. Because her epileptic seizure activity does
not interfere with major life activities when she treats it by
adhering to her therapeutic sleep regimen, she, like the
plaintiffs in the Supreme Court trilogy, is not disabled under
Plaintiff, in her remand brief, no longer bases her disability
claim on her epilepsy seizure activity itself. She now asserts
that her epilepsy is a disability under the ADA because the
disorder interferes with the major life activity of "sleeping as
it relates to plaintiff's epilepsy." (Doc. 57 at 4.) Plaintiff
appears to make two separate arguments regarding sleeping.
First, plaintiff contends that sleep is a major life activity
and that she is substantially limited in that activity because
she must average seven to eight hours of sleep a night in order
to prevent seizure activity. Specifically, she contends that she
is significantly restricted as to the condition, manner or
duration under which she can perform the major life activity of
sleeping as compared to the average person in the general
population. See 29 C.F.R. § 1630.2(j)(1), (2), infra, at n.
1. Sleep has been recognized as a major life activity. See
McAlindin v. County of San Diego, 192 F.3d 1226, 1234 (9th Cir.
1999); Pack v. Kmart Corp., 166 F.3d 1300, 1305 (10th Cir.
1999); Colwell v. Suffolk County Police Dept., 158 F.3d 635,
643 (2d Cir. 1998). The cases which deal with sleep as a major
life activity are focused on insomniac plaintiffs who cannot
sleep, not on plaintiffs who cannot stay up as late or as often
they might care to. See, e.g., Baulos v. Roadway Exp., Inc.,
139 F.3d 1147 (7th Cir. 1998), Williams v. City of Charlotte,
899 F. Supp. 1484 (W.D.N.C. 1995). Plaintiff does not cite, nor
does research disclose a case which supports the plaintiff's
contention that a requirement of an average of seven to eight
hours of sleep is somehow a substantial limitation of the major
life activity of sleeping. While the argument is an interesting
one, I find it difficult to conclude that the need for seven to
eight hours of sleep, a common enough condition generally, is
Plaintiff's second argument concerns sleep as the treatment for
the epilepsy or epileptic seizure activity. In Sutton, the
Supreme Court said that "if a person is taking measures to
correct for, or mitigate, a physical or mental impairment, the
effects of those measures — both positive and negative — must be
taken into account when judging whether that person is
`substantially limited' in a major life activity and thus
`disabled' under the Act." Sutton, 527 U.S. 471, 119 S.Ct. 2139
at 2146, 144 L.Ed.2d 450. It is undisputed that if plaintiff
averages seven to eight hours of sleep, her epileptic seizure
activity is curtailed. Thus, the corrective measures control the
epilepsy and, consequently, the impairment of the major life
activity of working. See Id. Unlike the plaintiff in Taylor,
the treatment, sleep, effectively and completely controls and
eliminates Ms. Popko's disabling condition. Taylor, 184 F.3d at
307-09. Moreover, the required seven to eight hours of sleep does
not, as in Taylor, produce side effects which are in themselves
Accordingly, plaintiff's arguments fail to raise a genuine
issue of material fact as to either epilepsy or sleep. The latter
subject, sleep, was not mandated by the Court of Appeals, but
since plaintiff raised it before me, I thought it appropriate to
In conclusion, the Court again finds, as a matter of law, that
plaintiff is not, by reason of her idiopathic epilepsy, disabled
within the meaning of the ADA. Plaintiff also urges this Court to
reconsider its holdings regarding plaintiff's right brachial
plexopathy and the issue of retaliation. These issues have been
addressed by the Court in previous Memoranda; they and
plaintiff's "regarded as having" claim pursuant to
42 U.S.C. § 12102(2)(C) are beyond the scope of this remand.
An appropriate Order will follow.
NOW, this __ day of FEBRUARY 2000, upon consideration of
additional case law per the Third Circuit panel's Order of
October 4, 1999, it is hereby ORDERED that:
1. the Court reaffirms its prior determination that
plaintiff is not, by reason of her idiopathic
epilepsy, disabled within the meaning of the ADA;
2. this decision shall be returned to the Third
Circuit panel for determination of the appeal.