Number range CHAPTER **IN THE UNITED STATES DISTRICT COURT**

**FOR THE SOUTHERN DISTRICT OF ALABAMA**

**NORTHERN DIVISION**

**BETHANY KARR,** )

)

**Plaintiff,** )

)

**v.** ) **CASE NO. 00-578-L**

)

**WAL-MART STORES, INC.** )

)

> )

**Defendant.** )

**[Memorandum of Law of United States as *Amicus Curiae*]{.underline}**

The United States of America as [amicus]{.underline}
[curiae]{.underline} hereby submits this brief to this Honorable Court.
Based upon its review and analysis of the undisputed material facts in
this action, and the application of the law to those facts, the United
States urges this Court to deny the Motion for Summary Judgment of
Defendant Wal-Mart Stores, Inc. ("Wal-Mart" or "Defendant"). Plaintiff
Bethany Karr ("Karr" or "Plaintiff") has presented sufficient evidence
to demonstrate that a genuine issue of material fact exists as to
whether she is a person with a disability within the meaning of the
Americans with Disabilities Act of 1990, 42 U.S.C. § 12181
[et]{.underline} [seq]{.underline}., and its implementing regulations,
28 C.F.R. Part 36, and facts material to the claims and defenses in this
action are genuinely in dispute.

# I. INTEREST OF THE UNITED STATES

This case involves the interpretation of Title III of the Americans with
Disabilities Act of 1990, 42 U.S.C. § 12181 [et]{.underline}
[seq]{.underline}. ("ADA"), which prohibits discrimination "on the basis
of disability in the full and equal enjoyment of the goods, services,
facilities, privileges, advantages, or accommodations" offered by a
place of public accommodation. 42 U.S.C. § 12182(a) [et]{.underline}
[seq.]{.underline}; 28 C.F.R. § 36.201(a). The United States Department
of Justice (the "Department") is the federal agency with primary
responsibility for the enforcement of Title III of the ADA, 42 U.S.C. §
12188(b); 28 C.F.R. §§ 36.502-504. In addition, the Department is the
agency directed by Congress to promulgate Title III's implementing
regulations. 42 U.S.C. § 12186(b).

Because of its responsibility for enforcing Title III of the ADA, the
federal government has an interest in ensuring that this statute and the
regulations promulgated to implement it are properly and consistently
applied and construed. This Court's ruling on the correct interpretation
of Title III and the relevant regulations in this case will have
widespread impact for persons with Tourette Syndrome who wish to achieve
equal opportunity to participate in mainstream society in the United
States. Given the Department's expertise with regard to the legal issues
before this Court, the government believes its views regarding the
provisions of Title III of the ADA will be of assistance.

# II. STATEMENT OF THE ISSUE

In this brief, the United States will address the issue of whether
Plaintiff has presented sufficient evidence to create a genuine issue of
material fact as to whether she is a person with a disability within the
meaning of Title III of the ADA.

# III. STANDARD FOR SUMMARY JUDGMENT

On a motion for summary judgment, the court is to construe the evidence
and factual inferences arising therefrom in the light most favorable to
the nonmoving party. [See]{.underline} [Adickes v. S.H. Kress & Co., 398
U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)]{.underline}.
Summary judgment can be entered on a claim only if it is shown \"that
there is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.\" Fed.R.Civ.P. 56(c).
As the Supreme Court has explained the summary judgment standard:

\[T\]he plain language of Rule 56(c) mandates the entry of summary
judgment, after adequate time for discovery and upon motion, against a
party who fails to make a showing sufficient to establish the existence
of an element essential to that party\'s case, and on which that party
will bear the burden of proof at trial. In such a situation, there can
be no \'genuine issue as to any material fact,\' since a complete
failure of proof concerning an essential element of the nonmoving
party\'s case necessarily renders all other facts immaterial.

[Celotex Corp. v. Catrett]{.underline}, 477 U.S. 317, 322-23, 106 S. Ct.
2548, 91 L.Ed.2d 265 (1986) ([citing]{.underline} Fed.R.Civ.P. 56(c)).
The United States submits that, as set forth below, Plaintiff has made a
showing sufficient to demonstrate the existence of a genuine issue of
material fact as to whether she is a person with a disability within the
meaning of the ADA.

# IV. APPLICABLE STATUTORY AND REGULATORY SCHEME

The ADA defines a "disability" as "(A) a physical or mental impairment
that substantially limits one or more of the major life activities of
such individual; (B) a record of such impairment; or (C) being regarded
as having such an impairment." 42 U.S.C. § 12102(2); 28 C.F.R. § 36.104.
"Physical or mental impairment" is defined as "any mental or
psychological disorder such as \... emotional or mental illness." 28
C.F.R. § 36.104. "Major life activities" include, but are not limited
to, "functions such as caring for one's self, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and working."
[Id.]{.underline} Furthermore, "\[a\] person is considered an individual
with a disability \... when the individual's important life activities
are restricted as to the conditions, manner, or duration under which
they can be performed in comparison to most people." 28 C.F.R. Part 36,
App. B. § 36.104.

# V. FACTUAL BACKGROUND

Plaintiff Karr is a twenty-four (24) year old adult resident citizen of
the State of Alabama. Complaint ¶ 4. Karr was diagnosed with a severe
form of Tourette Syndrome ("TS") and Obsessive Compulsive Disorder
("OCD") when she was approximately twelve (12) years old. Plaintiff's
Exhibit ("Pl.'s Ex.") No. 25 at 1, ¶ 2. TS is an inherited, neurological
disorder characterized by repeated and involuntary body movements and
uncontrollable vocal sounds. National Institute of Neurological
Disorders and Stroke "Tourette Syndrome Fact Sheet" ("TS Fact Sheet"),
http://www.ninds.nih.gov/health_and_medical/pubs/tourette_syndrome.htm.
Karr also exhibits one of the most socially stigmatizing symptoms of TS
called coprolalia, the involuntary outburst of obscene words or socially
inappropriate and derogatory remarks. [Id.]{.underline} Karr's
coprolalia manifests itself through her involuntary use of the words
"fuck," "nigger," "shit," and "bitch." Deposition of Bethany Karr ("Karr
Dep.") at 28--29. Karr's involuntary outbursts, such as the ones
presented in this case, are especially pronounced because of her
echolalia, which is characterized by a compulsive repetition of words.
An ordinary observer might recognize that Karr's vocal tics are
unintentional and involuntary behavior because they are uttered in a
louder tone and different vocal pitch than normal conversational speech.
TS Fact Sheet,
http://www.ninds.nih.gov/health_and_medical/pubs/tourette_syndrome.htm.
In addition, Karr experiences other symptoms of TS such as exhopraxia,
which causes her to repeat words and phrases that she hears,
innerpraxia, which occasionally causes her to make profane gestures with
the middle fingers of her hands, and motor tics which cause marked
extreme movements of her face, arms, and legs. Pl.'s Ex. No. 21 and No.
1 at 31, lns. 34-36. Karr's vocal and motor tics are virtually constant.
[Id.]{.underline} at 2, ¶ 3 and ¶ 5.

Karr also suffers from Obsessive Compulsive Disorder ("OCD"), which is
an associated behavior of TS which causes Karr to feel that something
must be done over and over again and in a particular way. Karr Dep. at
32. For instance, her OCD causes Karr to do things like count money or
lock doors over and over again. [Id.]{.underline}, lns. 10-14. In
addition, Karr's OCD causes her to experience repetitive unwanted and
bothersome thoughts. Combined with TS, OCD has led to her decreased
ability to concentrate for sustained periods of time, as well as her
inability to maintain normal sleep patterns. Physicians have attempted
to treat Karr's TS and OCD with numerous medications without success.
Pl.'s Ex. No. 21 at 1, ¶ 6; Pl.'s Ex. No. 23 at 1, ¶ 1; Pl.'s Ex. No. 25
at 1, ¶ 4. In fact, as she's grown older her symptoms have only
worsened. Pl.'s Ex. No. 21 at 1 ¶ 2; Karr Dep. at 31, ln. 4.

**VI. ARGUMENT**

Plaintiff has produced evidence sufficient to create a genuine question
of material fact as to whether, as a result of her TS and OCD, she is a
person with a disability who is substantially limited in the major life
activities of interacting with others and working.[^1] The term
\"disability\" with respect to an individual is defined under the ADA as
"a physical or mental impairment that substantially limits one or more
of the major life activities of such individual." 42 U.S.C. §
12102(2)(a); 28 C.F.R. § 36.104.[^2] The Supreme Court has articulated a
three-step inquiry for determining whether an impairment substantially
limits a major life activity so as to constitute a disability under the
ADA. [See]{.underline} [Bragdon v. Abbott]{.underline}, 524 U.S. 624,
631, 118 S. Ct. 2196, 2202, 141 L.Ed.2d 540 (1998). First, the court
must ascertain whether plaintiff has a physical or mental
\"impairment.\" Next, the court must identify whether any "major life
activities" are impacted by that impairment. Finally, the court must
determine whether the impairment \"substantially limits\" any major life
activity. [Id.]{.underline}

Applying this standard to Plaintiff's TS and OCD, Plaintiff has an
impairment that substantially limits a major life activity. The phrase
"physical or mental impairment" includes any "physiological disorder or
condition" that affects the neurological system or "any mental or
psychological disorder such as \... emotional or mental illness." 28
C.F.R. § 36.104. Tourette Syndrome is a neurological impairment
characterized by motor and verbal tics and coprolalia. [Purcell v.
Pennsylvania Dep't of Corrs.]{.underline}, 1998 WL 10236 (E.D. Pa.
1998). It is undisputed that Plaintiff's TS and OCD are impairments
within the meaning of the ADA. [See]{.underline} Defendant's Brief in
Support of Motion for Summary Judgment ("Def.'s Br.") at 9.

The next inquiry is whether Plaintiff's impairment substantially limits
a major life activity. Although not exhaustive, Title III's implementing
regulations describe "major life activities" as "functions such as
caring for one's self, performing manual tasks, walking, seeing,
hearing, speaking, breathing, learning, and working." 28 C.F.R. §
36.104. In addition, the Equal Employment Opportunity Commission's
[Enforcement Guidance on the Americans with Disabilities Act and
Psychiatric Disabilities]{.underline} 5 (March 25, 1997) lists
"interacting with others" as a major life activity. Plaintiff alleges
that, among other things, she is substantially limited in the major life
activities of interacting with others and working. Courts addressing the
issue of whether a person who has TS and OCD should be considered a
person with a disability within the meaning of the ADA have held that a
trier of fact could reasonably conclude that an individual who has these
conditions is in fact disabled. For instance, in [Purcell]{.underline},
1998 WL 10236 at \*8, the court held that the plaintiff who, like Karr,
had TS and OCD, was substantially limited in the major life activity of
interacting with others as a result of his inability to communicate with
others for extended periods of time.[^3] In light of the evidence
presented in this case of the extreme symptoms and uncontrollable nature
of Karr's TS and OCD, a genuine issue of material fact exists as to
whether she is a person with a disability.

> A. **A genuine issue of material fact exists as to whether Plaintiff
> is substantially limited in the major life activity of interacting
> with others**

Interacting with others is a major life activity within the meaning of
the ADA. For instance, in [McAlindin v. County of San
Diego]{.underline}, 192 F.3d 1226, 1234 (9^th^ Cir. Sept. 16, 1999,
amended Jan. 18, 2000), [cert.]{.underline} [denied]{.underline}, U. S.
, 120 S. Ct. 2689, 147 L. Ed. 2d 961 (2000), the plaintiff had been
diagnosed with anxiety, panic, and somatoform disorders that caused him
to withdraw from family members and public places. The Ninth Circuit
reasoned that "because interacting with others is an essential, regular
function, like walking and breathing, it easily falls within the
definition of 'major life activity.'" The court qualified its holding,
explaining that "\[r\]ecognizing interacting with others as a major life
activity of course does not mean that any cantankerous person will be
deemed substantially limited in a major life activity. Mere trouble
getting along with coworkers is not sufficient to show a substantial
limitation." [Id.]{.underline} The factors that the court considered to
be determinative of McAlindin's limitation were clinical findings
indicating a pattern of withdrawal from public places and social
settings, as well as the severity of the limitation "when compared to
the ability of 'the average person in the general population.'"
[Id.]{.underline} (citations omitted).[^4] Furthermore, the court held
that "a plaintiff must show that his 'relations with others were
characterized on a regular basis by severe problems, for example,
consistently high levels of hostility, social withdrawal, or failure to
communicate when necessary.'" [Id.]{.underline} [quoting]{.underline}
[EEOC Enforcement Guidance on the Americans with Disabilities Act and
Psychiatric Disabilities]{.underline} 5 (March 25, 1997).

The effects of Karr's TS and OCD on her ability to interact with others
are more severe than those found in [McAlindin]{.underline}. Karr's TS
and OCD are debilitating conditions with respect to their constant
effects on her ability to interact with others. As discussed in Part V.,
[supra]{.underline}, Plaintiff has uncontrollable and nearly constant
motor tics and vocalizations, including profanity, racial slurs, obscene
gestures, and other involuntary actions involving her hands and face.
These symptoms result in a "failure to communicate when necessary," and
severely inhibit her ability to enter into public or social settings.
Pl.'s Ex. No. 16 at ¶ 2. Karr experiences severe anxiety in public
places stemming from her fear of the way in which she will be perceived.
[Id.]{.underline} People who encounter Karr openly mock her, stare at
her, and misperceive her coprolalia and motor tics as a sign of
disrespect or hatred. Pl.'s Ex. No. 16 at ¶ 20, No. 17 at ¶ 15, and No.
13 at 9.

The facts of this case are illustrative of the difficulties Karr faces
as a result of her TS and OCD any time that she attempts to interact
with others who do not understand her disability. Often, people Karr
encounters in public are offended by the symptoms of her disability.
Pl.'s Ex. Nos. 16 at ¶ 20, 17 at ¶ 15, and 13 at ¶¶ 8-9. As a result,
Plaintiff's interactions with others are "characterized on a regular
basis by severe problems" such as "a pattern of withdrawal from

public places." [McAlindin]{.underline}, 192 F.3d at 1235. Karr only
socializes with her roommate and her family because, in her words, "they
accept \[her\] Tourette's Syndrome without berating \[her\]."
Application for Disability Benefits, Daily Activities Questionnaire,
Dec. 1995, Pl.'s Ex. No. 20 at 2, ¶ 16; Pl.'s Ex. No. 16. As in
[McAlindin]{.underline}, clinical findings indicate that Karr's TS and
OCD cause her pattern of withdrawal from public places and social
settings. One doctor who evaluated Plaintiff explained that she has
"near constant coprolalia and vocal tics, and \[that\] it is fairly
obvious as to why \[Plaintiff\] is not only disabled, but unable to be
in public." Pl.'s Ex. No. 21 at 2, ¶ 11. Thus, the severity of the
limitations on Karr's ability to interact with others as compared with
the average person in the general population is evident.

Furthermore, Karr's limitations with respect to interacting with others
are also more severe than those experienced by the plaintiff in
[Purcell]{.underline}. In [Pucell]{.underline}, the court held that a
jury could reasonably find that plaintiff's TS and OCD substantially
limited the major life activity of interacting with others even though
Purcell had the ability to temporarily suppress his verbal and motor
tics while interacting with others. In contrast, Karr's TS and OCD are
so extreme that she is unable to exercise any similar degree of control
over her vocal and motor tics. Pl.'s Ex. No. 25 at 1, ¶¶ 2-3. Defendant
asserts that because people can "understand what Karr is saying," she
can therefore communicate effectively. However, the court in
[Purcell]{.underline} made clear that the plaintiff's ability to
suppress his verbal and motor tics while interacting with others, and as
a result, communicate with others on discrete occasions, did not
disprove the fact that Purcell's TS substantially limited the major life
activity of interacting with others. [Id.]{.underline} at \*7. Further
evidence of the severity of Karr's coprolalia is found in her deposition
transcript which is marked throughout by her use of profanity. The
deposition transcript does not portray the extent to which Karr's motor
tics affect her ability to interact with others. Karr's use of profane
and nonsensical words and sounds, as well as her profound body tics, are
generally viewed as socially unacceptable behavior, thus severely
impairing her ability to interact with others in any public setting.
Therefore, Plaintiff has presented sufficient evidence to demonstrate a
genuine issue of material fact as to whether she is substantially
limited in the major life activity of interacting with others.

B.  **A genuine issue of material fact exists as to whether Plaintiff is
    substantially limited in the major life activity of working**

In addition to interacting with others, Plaintiff has presented
sufficient evidence of her substantial limitation in the major life
activity of working to survive summary judgment.

To be considered substantially limited in the major life activity of
working a person must be precluded from performing "'either a class of
jobs or a broad range of jobs in various classes as compared to the
average person having comparable training, skills and abilities.'"
[Williamson v. Int'l Paper Co.]{.underline}, 85, F. Supp. 2d 1184, 1194
(11^th^ Cir. 2000) ([quoting]{.underline} 29 C.F.R. § 1630.2(j)(3)(i)).
"\[W\]hether a plaintiff is substantially limited in the major life
activity of working is determined by comparing his ability to perform
jobs with the ability of a person without physical limitations who has a
comparable education, job skills, and talent." [Mullins v.
Crowell]{.underline}, 228 F.3d 1305, 1314 (11^th^ Cir. 2000). An
analysis of whether an individual is substantially limited in the major
life activity of working may include consideration of:

> the geographical area to which the individual has reasonable access,
> the job from which the individual has been disqualified because of an
> impairment, and the number and types of jobs using and not using
> similar training, knowledge, skills, or abilities within that
> geographical area, from which the individual is also disqualified
> because of the impairment.

[Id.]{.underline} at 1315. Expert vocational evidence is not necessary
to establish that a person is substantially limited in the major life
activity of working. A plaintiff can testify from his or her own job
search experience whether other jobs that he or she could perform were
available in the geographical area. [Mullins]{.underline}, 228 F.3d at
1314 n.8. Furthermore, a plaintiff presents sufficient evidence to
survive a motion for summary judgment on the issue of being
substantially limited in the major life activity of working if he or she
presents medical evidence, such as a physician's opinion, of his or her
inability to work in either a class of jobs or a broad range of jobs in
various classes. [Pritchard v. Southern Co. Servs.]{.underline}, 92 F.3d
1130, 1134 (11^th^ Cir. 1996).

Defendant's contention that working is not a major life activity within
the meaning of the ADA is unfounded. [See]{.underline} Def.'s Br. at 11.
The Eleventh Circuit has specifically addressed this issue, explaining,
"the Supreme Court did not hold \[in [Sutton v. United Air Lines,
Inc.]{.underline}, 572 U.S. 471, 119 S. Ct. 2139, 144 L.Ed.2d 450
(1999),\] that working was not a 'major life activity.' Accordingly, our
precedent treating working as a 'major life activity' is still valid,
and the district court erred by interpreting the \[ADA\] contrary to our
precedent." [Mullins]{.underline}, 228 F.3d at 1313. [See]{.underline}
[also]{.underline} [Reed v. Heil Co.]{.underline}, 206 F.3d 1055, 1061
(11^th^ Cir. 2000) ("A physical or mental impairment qualifies as a
disability under the ADA if it substantially limits a major life
activity, such as working."). Therefore, working is a major life
activity within the meaning of the ADA.

Plaintiff can demonstrate that she is substantially limited in a broad
range of jobs, such as any that require frequent interaction with the
public, and a class of jobs, such as jobs in the service industry. As
Defendant points out in its brief, Plaintiff is a well educated and
intelligent individual who graduated from her high school at the top of
her class and who has completed courses to become a certified nursing
assistant ("CNA"). Def.'s Br. at 18; Karr Dep. at 14, ln. 19 and at 8,
lns. 15-16. Most individuals with Plaintiff's level of education and
training could be expected to have a record of consistent and ongoing
employment. However, despite her education, Plaintiff has been
unemployed and receiving social security disability benefits since 1997.
Furthermore, Karr has held only three (3) jobs since her high school
graduation, none of which she held for more than one (1) year. Karr Dep.
at 15-25. Plaintiff was "let go" from her last job were she worked as a
CNA because of the effects of her TS and OCD. Pl.'s Ex. No. 25 at 1, ¶
2; Karr Dep. at 22, ln. 8; Pl.'s Ex. No. 20 at 3, ¶ 26-27. Plaintiff
stated in her application for social security disability benefits that
the pressures of work make her TS and OCD more severe. Pl.'s Ex. No. 20
at 3, ¶ 26-27.

Karr's physicians' description of her diagnosis and the employment
difficulties that she experienced as a result of her diagnosis is
sufficient evidence to survive a motion for summary judgment on the
issue of whether her impairment substantially limited the major life
activity of working. For instance, in [Pritchard]{.underline}, the
plaintiff, who was diagnosed with depression and dysautonomia, had
symptoms of profound fatigue, lack of interest and energy, difficulty
sleeping, communicating, and concentrating, among other things. 92 F.3d
at 1132. The Eleventh Circuit stated that this evidence "present\[ed\] a
case for a jury to determine whether \[plaintiff\] suffered from those
symptoms \... and whether those symptoms substantially limited a major
life activity." [Id.]{.underline} at 1134. Karr's physician recommended
that she discontinue working because of her "inability to control her
symptoms" and "due to unacceptable side effects" of her medications.
Pl.'s Ex. No. 23. This physician also explained that Plaintiff's motor
and vocal tics are "severe enough to significantly interfere with her
daily activities, including employment." [Id.]{.underline} Her
physicians' attempts at controlling the TS and OCD symptoms through
various medications have been unsuccessful. [Id.]{.underline}; Pl.'s Ex.
No. 21 at 1, ¶ 6.[^5] In fact, her symptoms have only worsened.
[Id.]{.underline} at 1, ¶ 2. As one doctor put it, Karr is incapable of
working or of "self support" because of her "mental and physical
incapacity that has existed on a continuous basis since before her
21^st^ birthday and will not be resolved in the foreseeable future."
Pl.'s Ex. No. 25 at 2, ¶ 8. In light of Karr's record of unemployment,
as well as her physicians' description of the limitations of her
conditions upon her ability to work, Plaintiff has submitted sufficient
evidence to demonstrate that there is a genuine issue of material fact
as to whether she is substantially limited in the major life activity of
working.

**VII. CONCLUSION**

Based on the above, it is clear that a genuine issue of material fact
exists as to whether Plaintiff is a person with a disability within the
meaning of the ADA. Therefore, the United States respectfully requests
that this Honorable Court deny Defendant's Motion for Summary Judgment.

**Dated: December 20, 2001 Respectfully submitted,**

**JOHN ASHCROFT**

**Attorney General**

**of the United States**

**DAVID P. YORK RALPH F. BOYD, JR.**

**United States Attorney Assistant Attorney General**

**Southern District of Alabama Civil Rights Division**

**Riverview Plaza**

**63 Royal Street, Suite 600**

**Mobile, Alabama 36602**

**(334) 441-5845**

**\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_**

> **JOHN L. WODATCH, Chief**

**PHILIP L. BREEN**

**Special Legal Counsel**

**ALLISON J. NICHOL**

**Deputy Chief**

> **M. LUCIA BLACKSHER**
>
> **La. Bar No. 26605**

**Trial Attorney**

> **Disability Rights Section**
>
> **Civil Rights Division**

**U.S. Department of Justice**

**P.O. Box 66738**

**Washington, D.C. 20035-6738**

**(202) 514-1947**

**(202) 307-1197 (facsimile)**

[^1]: ^?^ Although Karr alleges that she is substantially limited in
    several major life activities, [see]{.underline} Plaintiff's
    Opposition to Defendant's Motion for Summary Judgment ("Pl.'s Br.")
    at 15-16 and 21-23, a plaintiff need only demonstrate that his or
    her disability affects one major life activity. 42 U.S.C. §
    12102(2)(A). Therefore, instead of addressing each major life
    activity that is substantially limited by Plaintiff's TS, the United
    States chooses to focus its brief on the major life activities of
    interacting with others and working.

[^2]: ^?^ The United States will only address whether Plaintiff has an
    actual disability under 42 U.S.C. § 12102(2)(A), even though
    Plaintiff has presented evidence on which a jury could reasonably
    find that Defendant "regarded" her as a person with a disability,
    and that she has a "record of" disability under 42 U.S.C. §
    12102(2)(B) and (C). [See]{.underline} Pl.'s Br. at 19-20 and 23-24.

[^3]: ^?^ Although not addressing the major life activities of
    interacting with others or working, [Lanci v. Arthur Andersen,
    LLP]{.underline}, 2000 WL 329226, \*4 (S.D.N.Y. 2000), is another
    case in which the court held that a plaintiff with TS and OCD could
    be considered a person with a disability within the meaning of the
    ADA. In [Lanci]{.underline}, the court determined that the
    plaintiff's "intrusive thoughts," combined with the effects of his
    TS and OCD, "significantly restricted his ability to *think* and
    *concentrate*." (emphasis in original). The court reasoned that
    plaintiff's acute symptoms, although not regular, could be expected
    to reoccur and lasted long enough to fall within the ADA's
    definition of disability. [Id.]{.underline} at \*5.

[^4]: ^?^ Other courts have held that interacting with others is a major
    life activity. [See]{.underline} [Soileau v. Guilford of Maine,
    Inc.]{.underline}, 105 F.3d 12, 15 (1^st^ Cir. 1997) (assumed that
    interacting with others is a major life activity on specific facts,
    but held that particular effects of plaintiff's impairment did
    substantially limit his ability to interact with others); [Steele v.
    Thiokol Corp.]{.underline}, 241 F.3d 1248, 1255 (10^th^ Cir. 2001)
    (same); [Garvey v. Jefferson Smurfit Corp.]{.underline}, 2000 WL
    1586077, \*3 (E.D. Pa. 2000) (finding that a jury could conclude
    that plaintiff with severe form of hypertension was substantially
    limited in major life activity of interacting with others); [Zale v.
    Sikorsky Aircraft Corp.]{.underline}, 2000 WL 306943 (D. Conn. 2000)
    (recognizing the major life activity of interaction with others);
    [Purcell]{.underline}, 1998 WL 10236, \* 8 (ability to communicate
    for extended period of time affected major life activity of
    interacting with others); [Sherback v. Wright Automotive
    Group]{.underline}, 987 F. Supp. 433, 438 (W.D. Penn. 1997)
    (recognizing major life activity of interaction with others).
    [Krocka v. Bransfield]{.underline}, 969 F. Supp. 1073, 1084 (N.D.
    Ill. 1997), [aff'd on other grounds sub nom.]{.underline}, [Krocka
    v. City of Chicago]{.underline}, 203 F.3d 507 (7^th^ Cir. 2000)
    (plaintiff could establish disability under ADA by demonstrating
    that abilities to function generally and to interact with others,
    and therefore to work, were substantially limited).

[^5]: ^?^ The record is replete with evidence of Karr's physician's
    failed attempts at treating or even alleviating her TS and OCD
    symptoms. Pl.'s Ex. No. 21 at 1, ¶ 6 and ¶ 11; Pl.'s Ex. No. 23;
    Pl.'s Ex. No. 25 at 1, ¶ 4 and ¶ 5. In addition, Karr's medical
    records indicate that much of the treatment she received has had
    negative side effects. Karr Dep. at 52, lns. 7-8; Pl.'s Ex.

    No. 18; Pl.'s Ex. No. 16. This evidence clearly contradicts
    Defendant's assertion that Karr's medications and her smoking habit
    should be considered "mitigating measures that bolster Wal-Mart's
    argument that Karr is not substantially limited in any major life
    activity." Def.'s Br. at 13.