No. 03-2513
            _________________________________________

              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT
            _________________________________________

CATHY A. FISCUS,

          Plaintiff-Appellant,
                              
     v.

WAL-MART STORES, INC., d/b/a SAM'S WHOLESALE CLUB #6678,

          Defendant-Appellee.
          ______________________________________________

        On Appeal from the United States District Court
            for the Western District of Pennsylvania
          ______________________________________________

   Brief of the U.S. Equal Employment Opportunity Commission
as Amicus Curiae Supporting Plaintiff-Appellant Seeking Reversal 
 of Grant of Defendant-Appellee's Motion for Summary Judgment 
         ______________________________________________

ERIC S. DREIBAND
General Counsel

CAROLYN L. WHEELER
Acting Associate General Counsel
                                   U.S. EQUAL EMPLOYMENT 
LORRAINE C. DAVIS                    OPPORTUNITY COMMISSION
Assistant General Counsel               Office of General Counsel
                                   1801 L Street, N.W., 7th Floor
DANIEL T. VAIL                     Washington, D.C.  20507
Attorney                           (202) 663-4571

                       TABLE OF CONTENTS
                                
Table of Authorities . . . . . . . . . . . . . . . . . . . . . ii

Statement of Interest. . . . . . . . . . . . . . . . . . . . . .1

Statement of the Issues. . . . . . . . . . . . . . . . . . . . .1

Statement of the Case. . . . . . . . . . . . . . . . . . . . . .1

Summary of Argument. . . . . . . . . . . . . . . . . . . . . . .6

Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . .7

A.   The District Court Erred in Failing to Recognize that 
     "Eliminating Waste" Is a Major Life Activity under the ADA.7

B.   The District Court Erred in Imposing a Heightened ADA 
     Pleading Standard by Requiring Fiscus to Plead Specific 
     Major Life Activities in Her Complaint. . . . . . . . . . 14

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Certificate of Compliance with Rule 32(a). . . . . . . . . . . 22

Certificate of Service . . . . . . . . . . . . . . . . . . . . 23                     
			TABLE OF AUTHORITIES 

                             Cases 

Bragdon v. Abbott, 524 U.S. 624 (1998) . . . . . . . . . . . . . . . 9, 10

Conley v. Gibson, 355 U.S. 41 (1957) . . . . . . . . . . . . . . . .15, 16

Cruz v. Northwest Airlines, Inc., No. CIV.A.01-CV-2167, 
   2002 WL 31375730 (E.D. Pa. Oct. 18, 2002) . . . . . . . . . . . . . .18

Doe v. County of Centre, Pa., 242 F.3d 437 (3d Cir. 2001). . . . . . . .13

EEOC v. Browning Ferris, Inc., No. 99-2413, 2000 WL 1039469 
   (4th Cir. July 28, 2000). . . . . . . . . . . . . . . . . . . . . . .17

EEOC v. Browning Ferris, Inc., 262 F. Supp. 2d 577 (D. Md. 2002) . . . . . . 12

EEOC v. J.H. Routh Packing Co., 246 F.3d 850 (6th Cir. 2001) . . . . . .17

EEOC v. Renaissance, No. 02 C 50370, 2003 WL 1129220 
   (N.D. Ill. Mar. 13, 2003) . . . . . . . . . . . . . . . . . . . . . .18

Erjavac v. Holy Family Health Plus, 13 F. Supp. 2d 737 (N.D. Ill. 1998). . . . . .12

Fraser v. Goodale, No. 01-36018, 2003 WL 22072079 
   (9th Cir. Sept. 8, 2003). . . . . . . . . . . . . . . . . . . . . . .13

Fraser v. United States Bancorp, 168 F. Supp. 2d 1188 (D. Or. 2001). . . . . . . .13

Furnish v. SVI Systems, Inc., 270 F.3d 445 (7th Cir. 2001) . . . . . . .13

Gagliardo v. Connaught Labs., Inc., 311 F.3d 565 (3d Cir. 2002). . . . . 8

Gilbert v. Frank, 949 F.2d 637 (2d Cir. 1991). . . . . . . . . . . . . . 4

Lane v. Harborside Healthcare-Westwood Rehab. & Nursing Ctr., 
   No. Civ. 01-050-JD, 2002 WL 1674184 (D.N.H. July 16, 2002). . . . . .12
Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 
   507 U.S. 163 (1993) . . . . . . . . . . . . . . . . . . . . . . . . .15

Marinelli v. City of Erie, Pa., 216 F.3d 354 (3d Cir. 2000). . . . . . . 7

Mazza v. Bratton, 108 F. Supp. 2d 167 (E.D.N.Y. 2000),
   aff'd, 2001 WL 363513 (2d Cir.), cert. denied, 534 U.S. 887 (2001). . . . . . .12

Menkowitz v. Pottstown Mem'l Med. Ctr., 154 F.3d 113 (3d Cir. 1998). . . . . .16, 19

Mondzelewski v. Pathmark Stores, Inc., 162 F.3d 778 (3d Cir. 1998) . . . . . .8

Poindexter v. Atchison, Topeka & Santa Fe Ry. Co., 168 F.3d 1228 
   (10th Cir. 1999). . . . . . . . . . . . . . . . . . . . . . .14, 17, 19

Pryor v. Nat'l Collegiate Athletic Ass'n, 288 F.3d 548 (3d Cir. 2002). . . . . . .16

Reese v. Am. Food Serv., No. CIV.A.99-1741, 2000 WL 1470212 
   (E.D. Pa. Sept. 29, 2000) . . . . . . . . . . . . . . . . . . . . . .13

Rinehimer v. Cemcolift, Inc., 292 F.3d 375 (3d Cir. 2002). . . . . . . .10

Rivera v. Orange County Sch. Board, No. 6:98CV1153ORL3ABL19, 
   2000 WL 33176009 (M.D. Fla. May 2, 2000). . . . . . . . . . . . . . .12

Ryan v. Grae & Rybicki, P.C., 135 F.3d 867 (2d Cir. 1998). . . . . . . .11

Sacay v. Research Found. of City Univ., 193 F. Supp. 2d 611 
   (E.D.N.Y. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . .12

Stanley v. White Swan, Inc., No. CIV-00-1291-F, 2002 WL 32061753 
   (W.D. Okla. Sept. 26, 2002) . . . . . . . . . . . . . . . . . . . 11-12

Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002) . . . . . . . .16, 18, 19

Taylor v. Pathmark Stores, Inc., 177 F.3d 180 (3d Cir. 1999) . . . . . . 8

Taylor v. Phoenixville Sch. Dist., 184 F.3d 296 (3d Cir. 1999) . . . . . 8
Tice v. Centre Area Transp. Auth., 247 F.3d 506 (3d Cir. 2001) . . . . . 7

Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184 (2002). . . . 9, 10

Vaughn v. Nationsbank Corp., 137 F. Supp. 2d 1317 (N.D. Ga. 2000). . . . . . 10

Williams v. Hallmark Cards, Inc., No. 00-3199, 2001 WL 617821 
   (10th Cir. June 5, 2001). . . . . . . . . . . . . . . . . . . . . . .12

Wilson v. Int'l Bhd. of Teamsters, Chauffeurs, and Warehousemen, 
   47 F. Supp. 2d 8 (D.D.C. 1999). . . . . . . . . . . . . . . . . . . .20

Workman v. Frito-Lay, Inc., 165 F.3d 460 (6th Cir. 1999) . . . . . . . .12
                                
                                
                    Statutes and Regulations

Americans with Disabilities Act, 42 U.S.C.  12101- 12117 . . . . . . . 1

29 C.F.R.  1630.2(i). . . . . . . . . . . . . . . . . . . . . . . . .7, 8


                             Rules
                                
Fed. R. Civ. P. 8. . . . . . . . . . . . . . . . . . . . . . . . . . . .17

Fed. R. Civ. P. 8(a)(2). . . . . . . . . . . . . . . . . . . . . . .15, 16

Fed. R. Civ. P. 12(e). . . . . . . . . . . . . . . . . . . . . . . .17, 18

Fed. R. App. P. 32(a)(5) . . . . . . . . . . . . . . . . . . . . . . . .22

Fed. R. App. P. 32(a)(6) . . . . . . . . . . . . . . . . . . . . . . . .22

Fed. R. App. P. 32(a)(7)(B). . . . . . . . . . . . . . . . . . . . . . .22

Fed. R. App. P. 32(a)(7)(B)(iii) . . . . . . . . . . . . . . . . . . . .22

                      Legislative History

S. Rep. No. 101-116 (1989) . . . . . . . . . . . . . . . . . . . . . . . 7

H. Rep. No. 101-485 (1989) . . . . . . . . . . . . . . . . . . . . . . . 7


                         Miscellaneous 

App. to Part 1630, Interpretive Guidance on Title I of the Americans with
Disabilities Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

EEOC Compl. Man.  6,883 (CCH) (Mar. 1995), also available at
http://www.eeoc.gov/docs/902cm.html (last modified Feb. 1, 2000) . . . . . . .8

2 James Wm. Moore et al., Moore's Federal Practice (3d ed. 1999) . . . . . . 15

The American Heritage Dictionary of the English Language (4th ed. 2000). . . . . .11

Webster's New World College Dictionary (4th ed. 1999). . . . . . . . . .11

Random House Webster's Unabridged Dictionary (2d ed. 1998) . . . . . . .11
                                
                              STATEMENT OF INTEREST
     The U.S. Equal Employment Opportunity Commission ("EEOC" or the
"Commission") is charged by Congress with enforcing Title I of the Americans with
Disabilities Act of 1990 (the "ADA"), as amended, 42 U.S.C.  12101 - 12117.  The
district court decision at issue incorrectly construed a critical ADA statutory term and erroneously imposed a heightened ADA pleading standard.  Because we believe a failure to rectify these legal errors will adversely affect EEOC's ADA enforcement efforts, we offer our views to the Court.

                     STATEMENT OF THE ISSUES
     1.   Whether the District Court Erred in Failing to Recognize That
          "Eliminating Waste" from the Body Is a Major Life Activity under the
          ADA

     2.   Whether the District Court Erred in Requiring Plaintiff to Plead the
          Specific Major Life Activity of "Caring for Oneself" in Her ADA
          Complaint

     EEOC takes no position on any other issue raised in this appeal.
                     STATEMENT OF THE CASE
     Plaintiff Cathy A. Fiscus ("Plaintiff" or "Fiscus") worked in a Wal-Mart/Sam's Warehouse Club ("Wal-Mart") from 1986 through 2000.  App. at 298  1.  At all relevant times, she worked the night shift as a baker/wrapper.  Id.  She was diagnosed in July 1998 with end-stage renal disease, a condition of total or near-total and permanent kidney failure.  App. at 299  2, 295  6.  With this condition, her kidneys were no longer able to cleanse the blood at a level necessary for daily life.  App. at 306. Fiscus had to undergo dialysis or receive a kidney transplant to avoid death from the accumulation of waste products in her body.   App. at 295  6. In December 1998, Fiscus began peritoneal dialysis.  App. at 295  11.  In this procedure, which Fiscus performed herself, the lining of the abdomen filters wastes from the blood.  App. at 312.  A tube was inserted into Fiscus's abdomen, and she would siphon a cleansing solution from a bag hanging outside her body through the tube and into the peritoneal cavity surrounding the stomach.  The cleansing solution would remain in her abdomen for four to six hours.  Fiscus would then drain the soiled solution back through the tube into an empty bag and replace it with fresh fluid.  This exchanging of soiled fluid for fresh cleansing solution took approximately 20 to 45 minutes, and had to be repeated every four to six hours, every day.  App. at 43-46, 312.

     During a typical night shift, Fiscus would perform one peritoneal dialysis
treatment in the workplace restroom after waiting until all other employees were out on the workplace floor (so she could perform the treatment in private).  App. at 136. Around the time she started peritoneal dialysis, however, she suffered a fall at work. App. at 324.  She was absent from work for a short period as a result.  App. at 299  5. When she returned in January 1999, Fiscus told her manager that she would sometimesneed help with one or two baker/wrapper job duties that required heavier lifting.  App.at 92.  The manager told Fiscus that if she could not perform all the functions of her baker/wrapper job without assistance, she would have to be removed from this night shift position.  App. at 88.  He offered to reassign her to one or more day shift jobs.  App. at 89.  Fiscus then informed her manager that if she worked during the day, she would need a clean and private area in which to perform her peritoneal dialysis.  Id. The manager denied this specific request and ultimately told her that she could take disability leave until she "got her health back."  App. at 90, 93. 

     In September 1999, while Fiscus was still out on disability leave, she had a
kidney transplant.  App. at 299  10.  This rendered her unable to work until the end of March 2000.  Id.  In early March 2000, however, Wal-Mart fired Fiscus for failing to return to work after being out on medical leave for more than a year (an apparent Wal-Mart policy).   App. at 300  11.

     Fiscus consequently filed a charge with EEOC alleging disability discrimination, and later filed this lawsuit.  App. at 8  2.  In her complaint, Fiscus alleged that she suffered from "Renal Disease," and that "Renal Disease is a disability within the ADA as it is [a] physical impairment that substantially limits major life activities."  App. at 10  19-20.  She also claimed that Wal-Mart removed her from the baker/wrapper night shift job because of her disability, failed to accommodate her disability, and terminated her because of her disability.  App. at 11  24-26. 

     At the close of discovery, Wal-Mart moved for summary judgment, arguing
primarily that Fiscus was not "significantly limited in a major life activity."  R.23 at 7. In her principal brief opposing summary judgment, Fiscus asserted that she was substantially limited in the major life activity of "processing body waste and cleaning her blood."  R.27 at 9.  She cited case law concluding that end-stage renal failure had a substantial limitation on the major life activity of "caring for oneself," as well.  Id. at 11.  In a sur-reply brief, Fiscus similarly asserted that the "complete failure of [her] kidneys substantially limits her ability to perform the major life activities of eliminating body waste; of cleaning her blood; and of caring for herself."  R.33 at 1.  "Eliminating
one's body waste, and cleaning one's own blood cannot be anything other than major
life activities," Fiscus claimed.  Id.  Further, she contended, "[e]ven if not itself a major life activity, the inability to process body waste and cleanse blood substantially limits the major life activity of caring for oneself."  Id. at 3.
     Unpersuaded, U.S. magistrate judge Ila Jeanne Sensenich (the "magistrate
judge") recommended that Wal-Mart's summary judgment motion be granted.  R. 34
at 1.  The magistrate judge found that "[t]he activities of processing bodily waste and cleansing blood do not comport with the definition of major life activity' under the ADA."  Id. at 8.  The magistrate judge recharacterized these two activities as "kidney function," and then went on to find that "kidney function" itself was not a major life activity under the ADA.  Id. at 10-11.
     Despite clear references to the contrary in Fiscus's main and sur-reply briefs opposing summary judgment, the magistrate judge also found that Fiscus had not asserted any other specifically identified activity as a major life activity that was substantially limited by her renal disease, and had chosen instead "to assert kidney function as the sole affected major life activity."  Id. at 12.  For example, the magistrate judge said, Fiscus "has not asserted caring for oneself' as the major life activity impacted by her renal disease, but rather has chosen to focus on the elimination of bodily wastes and cleansing of the blood."  Id. at 15.  Thus, the magistrate judge concluded, Fiscus failed to state a claim under the ADA, "as she has failed to identify a major life activity in which her physical impairment has substantially limited her." 
Id. (emphasis added).
     The district court, Gary L. Lancaster, U.S. District Judge presiding, adopted the magistrate judge's opinion in its entirety and granted summary judgment for Wal-Mart. R. 37 at 2.  In doing so, the district court acknowledged that Fiscus had cited case law suggesting that end-stage renal failure had a substantial limitation on the major life activity of caring for oneself.  Id. at 1-2.  Nevertheless, the district court found, "a brief is not a pleading and a reference to a case in a brief does not raise an alternative claim, which is done by amending the complaint."  Id. at 2.  Thus, the district court decided
summary judgment for Wal-Mart was appropriate.  Id.

                       SUMMARY OF ARGUMENT
     The district court erred in failing to recognize that "eliminating waste" is a majorlife activity within the meaning of the ADA.  Under a proper analysis, the district court should have concluded that Fiscus's assertion of a substantial limitation in eliminating waste was adequate to withstand Wal-Mart's motion for summary judgment.  Its failure to reach this conclusion was legal error.
     The district court also erred in refusing to consider whether Fiscus was
substantially limited in "caring for herself."  The district court reasoned that Fiscus should have included this purported major life activity in her complaint, instead of raising it for the first time in her opposition to summary judgment.  Such a rule requiring an ADA plaintiff to plead specific major life activities in her complaint  is contrary to established notice pleading principles and recent Supreme Court (and other) case law.  The district court's decision to hold Fiscus to this heightened pleading standard was legal error.
                            ARGUMENT
A.   The District Court Erred in Failing to Recognize that "Eliminating Waste"
     Is a Major Life Activity under the ADA

     The ADA does not define "major life activity."  However, the Commission has
described "major life activities" as "those basic activities that the average person in the general population can perform with little or no difficulty."  App. to Part 1630, Interpretive Guidance on Title I of the Americans with Disabilities Act, at  1630.2(i); cf. Marinelli v. City of Erie, Pa., 216 F.3d 354, 361 (3d Cir. 2000) (quoting this definition with apparent approval).  Commission regulations provide an illustrative list of activities that fall into this category.  These include "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working."  29 C.F.R.  1630.2(i); see also S. Rep. No. 101-116, at 22 (1989) (listing the activities included in 29 C.F.R.  1630.2(i)); H.R. Rep. No. 101-485,
pt. 3, at 28 (1990) (listing the activities included in 29 C.F.R.  1630.2(i)); and Tice v. Centre Area Transp. Auth., 247 F.3d 506, 512 (3d Cir. 2001) (referencing this regulatory list of major life activities with apparent approval).  
     This regulatory list is not exhaustive, however.  See App. to Part 1630,
Interpretive Guidance on Title I of the Americans with Disabilities Act, at  1630.2(i).  According to the Commission, other physical activities such as sitting, standing, lifting, and reaching  should also be included.  See id.; see also Mondzelewski v. Pathmark Stores, Inc., 162 F.3d 778, 783 n.2 (3d Cir. 1998) (citing this EEOC interpretive guidance with apparent approval, and agreeing that these additional activities should also be included); cf. Taylor v. Pathmark Stores, Inc., 177 F.3d 180, 185 (3d Cir. 1999) (noting that "EEOC regulations provide, and no one here contests, that . . . standing [is a] major life activit[y]").  The Commission has also opined that mental and emotional processes such as thinking, concentrating, and interacting with
others are major life activities, as well.  See EEOC Compl. Man.  902:  Definition of the Term "Disability," EEOC Compl. Man.  6,883, at  902.3(b) (CCH) (Mar. 1995), also available at http://www.eeoc.gov/docs/902cm.html (last modified Feb. 1, 2000); cf. Gagliardo v. Connaught Labs., Inc., 311 F.3d 565, 569 (3d Cir. 2002) (holding that concentrating and remembering "more generally, cognitive function" are major life activities); and Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 307 (3d Cir. 1999) (finding that thinking is a major life activity).
     In Bragdon v. Abbott, 524 U.S. 624, 638 (1998), the U.S. Supreme Court held
that human reproduction also should be included on the list of ADA major life
activities.  In explaining why, the Court reasoned that "[t]he plain meaning of the word major' denotes comparative importance' and suggest[s] that the touchstone for determining an activity's inclusion under the statutory rubric is its significance.'"  Id. at 638 (internal citations omitted); see also Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 197 (2002) (agreeing that "major" in the phrase "major life activities" means "important").  "Nothing," the Bragdon Court said, "suggests that activities without a public, economic, or daily dimension may somehow be regarded as so unimportant or insignificant as to fall outside the meaning of the word major.'" 
Bragdon, 524 U.S. at 638.  Indeed, the Court declared, "[t]he breadth of the term
confounds the attempt to limit its construction in this manner."  Id.
      The Bragdon Court pointed out that the relevant regulations, "[r]ather than
enunciating a general principle for determining what is and is not a major life activity," instead "provide a representative list" that is illustrative, but not exhaustive.  Bragdon, 524 U.S. at 638-39.  The Court then concluded that these rules "support the inclusion of reproduction as a major life activity, since reproduction could not be regarded as any less important than working and learning [activities included on the regulatory list]." Id. at 639.  In fact, the Court said, "[r]eproduction and the sexual dynamics surrounding
it are central to the life process itself."  Id. at 638; see also Toyota, 534 U.S. at 197 (where the Supreme Court more recently pronounced that the phrase "major life activities" refers to "those activities that are of central importance to daily life"); cf. Rinehimer v. Cemcolift, Inc., 292 F.3d 375, 380 n.1 (3d Cir. 2002) (citing Toyota for this proposition).
     To summarize, a "major life activity" must first and foremost be a basic mental or physical activity.  It must be something the average person in the general population can perform with little or no difficulty.  And it must be something relatively significant because it is central to the life process itself or of central importance to daily life.  In her summary judgment briefs, Fiscus argued she was substantially limited in "processing body waste and cleaning her blood" and "eliminating body waste."  The district court treated these as one in the same, and recharacterized the combined activities as "kidney function."  The district court then concluded that kidney function was not a major life activity under the ADA.  However, as noted, in addition to identifying "processing body waste and cleaning her blood," Fiscus's asserted major life activities included the process of eliminating waste from the body.  In reformulating Fiscus's allegations, the district court either ignored this activity altogether, or simply
believed it not to be encompassed within the definition of major life activity.  Either way, the court erred.
     Had the district court properly analyzed Fiscus's claim, it would have concluded that the elimination of waste is a major life activity.  It obviously is an activity.  See, e.g., The American Heritage Dictionary of the English Language 17-18 (4th ed. 2000) (defining "activity" in part as "a physiological process"); Webster's New World College Dictionary 14 (4th ed. 1999) (defining "activity" in part as "a normal function of the body or mind"); and Random House Webster's Unabridged Dictionary 20 (2d ed. 1998) (defining "activity" in part as a "normal mental or bodily power, function, or process").  It is also precisely the type of basic activity that the average person in the general population can perform with relative ease.  And it, like reproduction, is as important as "central to the life process" as other relatively significant activities
such as working and learning.
     Numerous courts have indicated that eliminating waste from the body should
indeed be deemed a major life activity.  See, e.g., Ryan v. Grae & Rybicki, P.C., 135 F.3d 867, 871 (2d Cir. 1998) (assuming without deciding that the ability to control one's elimination of waste is a major life activity); Stanley v. White Swan, Inc., No. CIV-00-1291-F, 2002 WL 32061753, at *4, *7 (W.D. Okla. Sept. 26, 2002) (assuming that the elimination of bodily waste is a major life activity); Sacay v. Research Found. of City Univ., 193 F. Supp. 2d 611, 627 (E.D.N.Y. 2002) (assuming that the ability to control elimination of waste is a major life activity); Mazza v. Bratton, 108 F. Supp. 2d 167, 174 (E.D.N.Y. 2000) (finding that controlling elimination of wastes is a major life activity), aff'd, 2001 WL 363513 (2d Cir.), cert. denied, 534 U.S. 887 (2001); Rivera v. Orange County Sch. Bd., No. 6:98CV1153ORL3ABL19, 2000 WL 33176009, at *6 (M.D. Fla. May 2, 2000) (assuming that the ability to eliminate bodily waste is a
major life activity); Erjavac v. Holy Family Health Plus, 13 F. Supp. 2d 737, 747
(N.D. Ill. 1998) (concluding that the elimination of waste is a major life activity); see also Williams v. Hallmark Cards, Inc., No. 00-3199, 2001 WL 617821, at **2 (10th Cir. June 5, 2001) (assuming that the ability to urinate is a major life activity); Workman v. Frito-Lay, Inc., 165 F.3d 460, 467 (6th Cir. 1999) (finding that the jury could have decided that controlling one's bowels is a major life activity); EEOC v. Browning Ferris, Inc., 262 F. Supp. 2d 577, 583-84 (D. Md. 2002) (concluding that moving one's bowels is a major life activity); Lane v. Harborside Healthcare- Westwood Rehab. & Nursing Ctr., No. Civ. 01-050-JD, 2002 WL 1674184, at *7 (D.N.H. July 16, 2002) (finding that the ability to control one's "bladder and bowel" are major life activities); Reese v. Am. Food Serv., No. CIV.A.99-1741, 2000 WL 1470212, at *7 (E.D. Pa. Sept. 29, 2000) (assuming that urinating is a major life activity).  We are aware of no contrary decision in this circuit.  Cf. Doe v. County of Centre, Pa., 242 F.3d 437, 447 (3d Cir. 2001) (a case brought under Title II of the ADA, stating (albeit without analysis) that digestion is a major life activity).
     To support its conclusion, the district court cited Furnish v. SVI Systems, Inc., 270 F.3d 445, 449-50 (7th Cir. 2001) (holding that "liver function" is merely a characteristic of the physical impairment at issue (cirrhosis of the liver), rather than an activity that has been affected by the impairment), and Fraser v. United States Bancorp, 168 F. Supp. 2d 1188, 1194 (D. Or. 2001) (declining to "accept that in crafting the language of the ADA, Congress intended the functioning of a person's internal bodily systems, without more, to qualify as a major life activity'").  These cases are, of course, distinguishable from this case in that the process of eliminating waste asserted by Fiscus is not merely a characteristic of an impairment or solely an internal bodily process.  Rather, it is an activity affected by her impairment.
     Given the clear import of the ADA, as construed by the Commission's
regulations and guidance and the case law, including pertinent Supreme Court
authority, we submit that the district court's refusal to recognize eliminating waste from the body as a major life activity was an error of law.  Cf. Poindexter v. Atchison, Topeka & Santa Fe Ry. Co., 168 F.3d 1228, 1230 (10th Cir. 1999) (instructing that "Bragdon makes clear that whether a claimed affliction constitutes an impairment under the ADA and whether the identified endeavor constitutes a major life activity are determinations of law for the court to decide").  Because this legal error formed the basis for the entry of summary judgment against Fiscus, and because Fiscus adduced sufficient evidence of a substantial limitation in eliminating waste to withstand
summary judgment, that judgment should be reversed.
B.   The District Court Erred in Imposing a Heightened ADA Pleading
     Standard by Requiring Fiscus to Plead Specific Major Life Activities in
     Her Complaint

     The district court refused to consider Fiscus's argument on summary judgment
that she was substantially limited in "caring for herself," noting that she did not plead this particular major life activity in her complaint.  In so ruling, the district court violated basic tenets of federal notice pleading, as consistently and recently interpreted in Supreme Court case law. 
     Fiscus's case was clearly governed by the Federal Rules of Civil Procedure and thus by its simplified scheme of "notice" pleading.  "The intent of the liberal notice pleading system is to ensure that claims are determined on their merits rather than through missteps in pleading."  2 James Wm. Moore et al., Moore's Federal Practice  8.04[1], at 8-23 (3d ed. 1999).  Thus, Federal Rule of Civil Procedure 8(a)(2), which sets out the general rules of pleading, "is fashioned in the interest of fair and reasonable notice, not technicality."  Id. at 8-24.  It requires only that a complaint contain "a short
and plain statement of the claim showing that the pleader is entitled to relief . . . ."  Fed.R. Civ. P. 8(a)(2).  Under Rule 8(a)(2), the complaint "does not have to set out in detailthe facts on which the claim for relief is based, but must [merely] provide a statement sufficient to put the opposing party on notice of the claim."  2 Moore et al., supra,  8.04[1], at 8-22.  In general, as long as this relatively low threshold is met, a complaint cannot be dismissed for failing to state a claim.  
     In Conley v. Gibson, 355 U.S. 41 (1957), for instance, the U.S. Supreme Court
refused to dismiss a complaint for failing to "set forth specific facts to support its general allegations of discrimination" and found that the complaint at issue "adequately set forth a claim and gave the respondents fair notice of its basis."  Id. at 47-48; see also Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168 (1993) (reiterating that the "Federal Rules of Civil Procedure do not
require a claimant to set out in detail the facts upon which he bases his claim'")
(quoting Conley, 355 U.S. at 47).  This liberal pleading standard was recently
reaffirmed by the Supreme Court in Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002). There, the Court, citing Conley, held that given the notice pleading nature of the Federal Rules of Civil Procedure (and Rule 8(a)(2) in particular), a plaintiff filing an employment discrimination complaint does not have to plead facts sufficient to make out a prima facie case to survive a motion to dismiss.  Id. at 515; see also Pryor v. Nat'l Collegiate Athletic Ass'n, 288 F.3d 548, 564 (3d Cir. 2002) (citing Swierkiewicz, Conley, and Rule 8(a)(2), and noting that a complaint for intentional discrimination under Title VI of the Civil Rights Act of 1964 need not contain a "detailed recitation of the proof that will in the end establish" a right to relief).
     Given this liberal notice pleading practice, several circuit courts including, most importantly, this one have recognized that an ADA complaint does not have to articulate the particular major life activities substantially limited by the plaintiff's disabling impairment to survive a motion to dismiss.  In Menkowitz v. Pottstown Memorial Medical Center, 154 F.3d 113 (3d Cir. 1998), for example, a plaintiff's complaint stated merely that his disability was "a disorder recognized as a disability under the' ADA."  Id. at 117 n.2.  Responding to a defense invitation to dismiss the complaint for failing to state a claim (because the complaint did not more precisely detail the disability in question), the Third Circuit ruled that "this allegation, which we must accept as true, [is] sufficient to meet the notice pleading requirements of Fed. R. Civ. P. 8 with respect to his disability."  Id.  Other circuits also have adopted this
approach and have refused to require plaintiffs to specify major life activities at the pleading stage.  See, e.g., EEOC v. J.H. Routh Packing Co., 246 F.3d 850, 852, 854-55 (6th Cir. 2001) (holding that "so long as the complaint notifies the defendant of the claimed impairment, the substantially limited major life activity need not be specifically identified in the pleading" and explaining that if a complaint is so vague that a party cannot reasonably be required to frame a responsive pleading, the party may always move for a more definite statement under Federal Rule of Civil Procedure 12(e); ultimately finding that the complaint at issue, which stated an aggrieved individual was
a "qualified individual with a disability (epilepsy or seizure disorder)," met "these liberal requirements, and the district court erred in demanding more"); Poindexter, 168 F.3d at 1232 (emphasizing that "to state a claim under the ADA, a plaintiff must articulate with precision the impairment alleged and the major life activity affected by that impairment," but observing that this "does not in any way change the federal notice pleading requirements"; stating that a "plaintiff has the option of clarifying his or her position at the pleading stage or waiting until trial to prove with particularity the impairment and major life activity he or she asserts are at issue") (emphasis added); EEOC v. Browning Ferris, Inc., No. 99-2413, 2000 WL 1039469, at **3 (4th Cir. July 28, 2000) (finding that a complaint stating that a plaintiff was terminated based on the
employer's "perception that she was disabled" was "sufficient to meet notice pleading
requirements").
     This principle has been interpreted in recent district court ADA cases to confirm once again that a plaintiff in an ADA complaint need not detail the precise major life activity limited by the impairment.  See, e.g., Cruz v. Northwest Airlines, Inc., No. CIV.A.01-CV-2167, 2002 WL 31375730, at *2 (E.D. Pa. Oct. 18, 2002) (complaint was sufficient, in light of Swierkiewicz, even though it did not allege with particularity either the impairment or the major life activity at issue, and stated merely that the plaintiff was a "qualified individual with a disability; since the "ADA defines disability as being substantially limited in a major life activity, a reasonable interpretation of Plaintiff's bare bone averment that he has a disability is that Plaintiff is also alleging
that he is substantially limited in a major life activity"); EEOC v. Renaissance, No. 02 C 50370, 2003 WL 1129220, at * 1 (N.D. Ill. Mar. 13, 2003) (complaint gave the defendant fair notice of the nature of the claim by merely stating that the plaintiff was "a qualified individual with a disability, mild mental retardation"; if defendant "believes it is essential to know what major life activity is substantially impaired by [plaintiff's] retardation in order to file an answer, it can seek a more definite statement under [Federal Rule of Civil Procedure] 12(e)").
     In this case, Fiscus's complaint complied with these notice pleading principles. It alleged that she had "Renal Disease," and that "Renal Disease is a disability within the ADA as it is [a] physical impairment that substantially limits major life activities."  App. at 10   19, 20.  After Menkowitz and Swierkiewicz, this statement was clearly
sufficient in the Third Circuit to plead Fiscus's ADA claim, and to ensure that the complaint would have survived any motion to dismiss.  Fiscus was free to argue in opposition to Wal-Mart's motion for summary judgment that she was substantially
limited in the major life activity of caring for herself.  Cf. Poindexter, 168 F.3d at 1232 (explaining that a "plaintiff has the option of clarifying his or her position at the pleading stage or waiting until trial to prove with particularity the impairment and major life activity he or she asserts are at issue").  Nevertheless, when Fiscus did attempt to assert that she was substantially limited in "caring for herself," the district court refused to entertain the issue, faulting her for failing to list this major life activity in her complaint and for raising it for the first time in opposition to summary judgment. 
Thus, the district court imposed just the sort of heightened ADA pleading standard
numerous courts have rejected before Swierkiewicz and since.  In doing so, the district
court erred.
                           CONCLUSION
     For the reasons articulated above, the Commission believes the district court
wrongly failed to find that "eliminating waste" is a major life activity under the ADA. 
The district court's opinion granting Wal-Mart's motion for summary judgment on this
ground should be reversed.  The district court also wrongly faulted Fiscus for not  pleading the additional major life activity of "caring for oneself" in her complaint.

                                   Respectfully submitted,
                                   ERIC S. DREIBAND
                                   General Counsel
          
                                   CAROLYN L. WHEELER
                                   Acting Associate General Counsel 
          
                                   LORRAINE C. DAVIS 
                                   Assistant General Counsel
          
          
                                   __________________________
                                   DANIEL T. VAIL
                                   Attorney
                                   U.S. EQUAL EMPLOYMENT
                                     OPPORTUNITY COMMISSION
                                   1801 L Street, N.W., 7th Floor     
                                   Washington, D.C.  20507
                                   (202) 663-4571
          

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                                   ____________________________
                                   DANIEL T. VAIL 
                                   Attorney
                                   U.S. EQUAL EMPLOYMENT
                                     OPPORTUNITY COMMISSION
                                   Office of General Counsel
                                   1801 L Street, N.W., 7th Floor
                                   Washington, D.C.  20507       
                              (202) 663-4571


Dated:  September 10, 2003

 CERTIFICATE OF SERVICE
     I certify that on September 10, 2003, I served copies of this brief by mailing
them first-class, postage prepaid, to the following:
Office of the Clerk
United States Court of Appeals for the Third Circuit
21400 U.S. Courthouse
601 Market Street
Philadelphia, PA  19106-1790


Samuel J. Cordes
Ogg, Cordes, Murphy & Ignelzi
245 Fort Pitt Boulevard
Pittsburgh, PA  15222
Attorney for Plaintiff-Appellant


Bradley A. Schutjer
Buchanan Ingersoll
301 Grant Street
One Oxford Centre, 20th Floor
Pittsburgh, PA  15219
Attorney for Defendant-Appellee

                                   
                                   ____________________________
                                   DANIEL T. VAIL 
                                   Attorney
                                   U.S. EQUAL EMPLOYMENT
                                     OPPORTUNITY COMMISSION
                                   Office of General Counsel
                                   1801 L Street, N.W., 7th Floor
                                   Washington, D.C.  20507
                                   (202) 663-4571