In the

United States Court of Appeals

For the Seventh Circuit

No. 00-1364

THOMAS M. MATTICE, M.D.,

Plaintiff-Appellant,

v.

MEMORIAL HOSPITAL OF 

SOUTH BEND, INC.

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Indiana, South Bend Division.

No. 98 C 303--Robert L. Miller, Jr., Judge.

ARGUED February 22, 2001--DECIDED MAY 7, 2001

 Before BAUER, COFFEY, and MANION, Circuit

Judges.

 MANION, Circuit Judge. Dr. Thomas

Mattice worked for Memorial Hospital in

South Bend, Indiana as an

anesthesiologist until he went on leave

for depression and panic disorder.

Mattice claims that after he returned to

work, Memorial discriminated against him

based on his disability, and he sued

under the ADA. The district court

dismissed his complaint for failure to

state a claim. Mattice appeals. We

reverse and remand for further

proceedings.

Background/1

 Dr. Mattice began working as an

anesthesiologist for Memorial Hospital in

July 1991. In January 1995, he was

hospitalized for about a week due to

panic disorder and major depression, but

he returned to work after being placed on

various medications. However, Dr. Mattice

had problems with side effects from the

medications and took a medical leave of

absence from May to August 1995. After

that leave of absence, he was released to

return to work without restrictions, but

Memorial required a second opinion. After

Dr. Mattice provided one, Memorial let

him return to work, but subjected him to

more rigorous and critical observation.
 In September 1996, a patient at Memorial

died in the operating room while Dr.

Mattice was performing the anesthesia

care for the patient. Memorial

immediately suspended him, but a peerreview panel recommended that he be

allowed to return to work. Memorial

refused to lift the suspension, so Dr.

Mattice complained to the Memorial Board

of Trustees. The Trustees revoked his

suspension, but conditioned his return to

work on monitoring and testing relating

to his mental health history. Memorial

later terminated Dr. Mattice, although it

is unclear from the amended complaint

exactly what happened. In any event, Dr.

Mattice filed a charge of disability

discrimination with the EEOC against

Memorial, and after receiving a Right to

Sue letter, he sued Memorial Hospital in

federal district court under the ADA; he

also alleged several pendent state

claims./2 

 Memorial moved to dismiss Dr. Mattice’s

ADA claim, arguing that he failed to

state a claim under the ADA. The

district court agreed based on the

Supreme Court’s recently rendered

decision in Sutton v. United Airlines,

Inc., 119 S.Ct. 2139 (1999). However,

because this decision was handed down

after Dr. Mattice had filed his

complaint, the district court granted him

leave to amend the complaint. Dr. Mattice

filed an amended complaint, but the

district court concluded that his new

allegations were still insufficient under

Sutton, and accordingly it dismissed his

ADA claim. The district court then

refused to exercise jurisdiction over Dr.

Mattice’s pendent state law claims. Dr.

Mattice appeals.

Analysis

 "A complaint should be dismissed only

where it appears beyond a doubt that

plaintiff can prove no set of facts that

would entitle [him] to relief." Homeyer

v. Stanley Tulchin Assoc., Inc., 91 F.3d

959, 961 (7th Cir. 1996). Because Dr.

Mattice seeks to state a claim under the

ADA, in order to determine whether the

district court erred in dismissing his

complaint, we begin with the statute. The

ADA provides that an employer shall not

"discriminate against a qualified

individual with a disability." 42 U.S.C.
sec. 12112(a). A "qualified individual

with a disability" is defined as "an

individual with a disability who, with or

without reasonable accommodation, can

perform the essential functions of the

employment position that such individual

holds or desires." 42 U.S.C. sec.

12111(8). The ADA further defines

"disabled" as someone who: 

(a) Has a physical or mental impairment

that substantially limits one or more of

the major life activities of such

individual; 

(b) has a record of such impairment; or

(c) is regarded as having such an

impairment.

42 U.S.C. sec. 12102(2).

 While Dr. Mattice does not claim that he

currently "has a physical or mental

impairment that substantially limits one

or more . . . major life activities," as

noted above, an individual is disabled

under the ADA if they have "a record of

such impairment" or are "regarded as

having such an impairment." In this case,

in his complaint, Dr. Mattice alleged a

disability under these latter two

definitions. Specifically, he alleged

that Memorial Hospital regarded him as

having a substantial impairment "in the

major life activit[y] of cognitive

thinking . . . ." Additionally, he

alleged that he "has a history of a

significant impairment of major life

activities of sleeping, eating, thinking,

and caring for himself in addition to

other life activities significantly

impaired by the existence of and care and

treatment for panic disorder, severe

depression and suicidal ideation." These

allegations are sufficient to state a

claim under the ADA. See, e.g., Homeyer,

91 F.3d at 961 (holding that under

liberal federal notice pleading

standards, plaintiff sufficiently pleaded

ADA claim by alleging that she suffered

from chronic severe allergic rhinitis and

sinusitis which substantially impaired

her ability to breathe); Duda, 133 F.3d

at 1059 (holding that plaintiff

sufficiently pleaded a claim under the

ADA by alleging that he suffered from a

psychiatric illness and was diagnosed as

a manic depressive and that the

defendant-employer was aware of that
diagnosis and regarded him as disabled

and substantially limited in major life

activities).

 Memorial claims otherwise, relying on

Sutton. In Sutton, two sisters sued

United Airlines under the ADA after

United Airlines refused to hire them as

global airline pilots based on their poor

(uncorrected) eyesight. The plaintiffs

alleged in their complaint that United

mistakenly believed that their physical

impairments substantially limited them in

the major life activity of working. The

Supreme Court held that the district

court had properly dismissed the sisters’

complaint, concluding that the plaintiffs

could not state a claim under the ADA

because "[w]hen the major life activity

under consideration is that of working,

the statutory phrase ’substantially

limits’ requires, at a minimum, that

plaintiffs allege they are unable to work

in a broad class of jobs." Id. at 2151.

Because "global airline pilot" is not a

"broad class of job," but is rather a

very specialized position for a limited

group of pilots, the Supreme Court held

that the sisters were not "disabled"

within the meaning of the ADA. For

instance, they could still be qualified

as regional pilots or pilot instructors.

 Memorial contends that Dr. Mattice, like

the Sutton sisters, is merely unable to

work as an anesthesiologist, and because

that is not a "broad class of jobs," he

is not disabled under the ADA. Had Dr.

Mattice alleged that Memorial regarded

him as limited in the major life activity

of working, we would agree with this

analysis, but he did not; rather, he

alleged that Memorial regarded him as

limited in the major life activity of

"cognitive thinking." This distinguishes

his case from Sutton, and significantly

so, because in reaching its decision in

Sutton the Supreme Court explicitly

noted: "Petitioners do not make the

obvious argument that they are regarded

due to their impairments as substantially

limited in the major life activity of

seeing. They contend only that respondent

mistakenly believes their physical

impairments substantially limit them in

the major life activity of working."

Sutton, 119 S.Ct. at 2150. This language

demonstrates that the Supreme Court’s

holding that to be disabled the plaintiff

must allege the inability to work in a
"broad class of jobs" was limited to the

specific allegation at issue in that

case--the major life activity of working

as a global airline pilot./3 In this

case, because Dr. Mattice alleged that

Memorial regarded him as limited in a

different major life activity--that of

cognitive thinking--Sutton is

inapplicable. See, e.g., Homeyer, 91 F.3d

at 962 (holding that district court erred

in dismissing ADA complaint where

plaintiff alleged both a substantial

limitation in the major life activity of

working and the major life activity of

breathing).

 Memorial argues in response that while

Dr. Mattice alleged that Memorial

believed him to be significantly impaired

in the major life activity of cognitive

thought, "that was really a claim that he

was mistakenly believed to be

substantially limited [in] the major life

activity of working." We rejected a

similar attempt to recast the plaintiff’s

complaint in Homeyer. In that case, the

plaintiff had alleged that she was

substantially impaired in her ability to

breathe and in her ability to work. This

court held that the district court had

improperly ignored the "ability to

breathe" allegation, focusing solely on

the life activity of working. Id. at 962.

We further rejected the defendant’s

attempt to translate the "ability to

breathe" allegation into a claim of a

limitation on the ability to work, noting

that "[i]t cannot be, however, that every

plaintiff that merely links an existing

disability to the workplace is limited to

an ’ability to work’ analysis, for then

every ’disability’ claim asserted in an

action against an employer would collapse

into an ’ability to work’ analysis." Id.

at 962 n.1. Accordingly, we reject

Memorial’s attempt to reformulate Dr.

Mattice’s "cognitive thinking" allegation

into a claim of a substantial limitation

in the ability to work.

 Moreover, in this case Dr. Mattice also

alleged that he had a "record of

impairment" in the major life activities

of sleeping, eating, thinking and caring

for himself. Because the ADA defines an

individual as "disabled" if they

currently have a substantial limitation

in a "major life activity," or are

regarded as having such a limitation, or

have a record of such a limitation, Dr.
Mattice’s allegation of a record of such

an impairment also states a claim under

the ADA. See, e.g., Duda, 133 F.3d at

1058 n.6 ("’Major life activities’

include such basic functions as ’caring

for oneself, performing manual tasks,

walking, seeing, hearing, speaking,

breathing, learning, and working.’")

(quoting 29 C.F.R. sec. 1630.2(i)).

Therefore, the district court should not

have dismissed Dr. Mattice’s complaint

for failure to state a claim. Because the

district court erroneously dismissed Dr.

Mattice’s federal claim, we also reverse

the district court’s decision not to

exercise jurisdiction over the state

supplemental claims.

 Before closing, we note that this case

is before us on 12(b)(6) dismissal, and

it is on that basis alone that we rule.

It may well be that at the summary

judgment stage, Memorial is able to

present evidence demonstrating that Dr. 

Mattice was not "a qualified individual

with a disability" as defined by the ADA,

or that his alleged impairments were not

"substantial limitations," or that it did

not discriminate against Dr. Mattice, or

that the added scrutiny of Dr. Mattice

was reasonably necessary given his role

as an anesthesiologist. See, e.g., Duda,

133 F.3d at 1060. But at this stage,

dismissal was inappropriate.

Conclusion

 "A complaint should not be dismissed for

failure to state a claim unless it

appears beyond doubt that the plaintiff

can prove no set of facts in support of

his claim which would entitle him to

relief." Conley v. Gibson, 355 U.S. 41,

45-46 (1957). In this case, Dr. Mattice

alleged that he was disabled because

Memorial regarded him as substantially

limited in the major life activity of

cognitive thinking and because he had a

record of impairment in the major life

activities of sleeping, eating, thinking

and caring for himself. Moreover, because

Dr. Mattice did not allege an impairment

in the major life activity of working,

Sutton is inapplicable and Dr. Mattice

was not required to allege that he was

"unable to work in a broad class of

jobs." Therefore, Dr. Mattice’s

allegations are sufficient to state a

claim under the ADA, and the district

court erred in dismissing his complaint.
Therefore we reverse and remand for

further proceedings.

FOOTNOTES

/1 The following facts are gleaned from the

complaint and for purposes of 12(b)(6), we must

assume them to be true. Duda v. Board of Educ.,

133 F.3d 1054, 1055 (7th Cir. 1998).

/2 Dr. Mattice also sued Michiana Anesthesia Care,

Neil Lesh, M.D., and Dean Strycker, M.D., but he

later stipulated to dismiss those defendants with

prejudice. Because those defendants are no longer

involved, we limit our discussion of the facts to

the complaint against Memorial Hospital.

/3 In this case, the EEOC filed an amicus brief

arguing that the district court erroneously

created a heightened pleading standard for ADA

claims by requiring that a plaintiff allege the

inability to work in a broad class of jobs. While

we agree with the EEOC that Sutton did not create

a heightened pleading standard, we note that

under Sutton, a plaintiff can plead himself out

of court by alleging as his disability the inability to work in a limited class of jobs.