California Law Review Volume 90|Issue 6 Article 4 December 2002 Why Courts Cannot Deny ADA Protection to Plaintiffs Who Do Not Use Available Mitigating Measures for Their Impairments Sarah Shaw Follow this and additional works at:https://scholarship.law.berkeley.edu/californialawreview Recommended Citation Sarah Shaw,Why Courts Cannot Deny ADA Protection to Plaintiffs Who Do Not Use Available Mitigating Measures for Their Impairments, 90 Calif. L. Rev. 1981 (2002). Link to publisher version (DOI) https://doi.org/10.15779/Z380Q6G This Article is brought to you for free and open access by the California Law Review at Berkeley Law Scholarship Repository. It has been accepted for inclusion in California Law Review by an authorized administrator of Berkeley Law Scholarship Repository. For more information, please contact [email protected]. Why Courts Cannot Deny ADA Protection to Plaintiffs Who Do Not Use Available Mitigating Measures for Their Impairments Sarah Shawt TABLE OF CONTENTS Introduction ............................................................................................ 1983 I. Legal Background: The Americans with Disabilities Act .............. 1988 A. Definition of "Disability". ........................................................ 1990 B. Definition of "Qualified Individual" ........................................ 1993 C. Exceptions to the Employer's Duty of Reasonable A ccom m odation ...............................1.9.95....................................... II. Emergence and Persistence of the "Failure to Control a Controllable Disability" Doctrine ................................................... 1997 A . Before Sutton ............................................................................ 1997 1. Cases Implicating Causation and Qualification ................. 1998 2. Cases Implicating the Disability Definition ....................... 2002 B. Analysis of Sutton and Its Implications for Lower Courts ....... 2004 1. Speculation Regarding the Effectiveness of Treatment ..... 2008 2. Speculation Regarding the Side Effects of Treatment ....... 2010 3. Speculation Regarding the Plaintiff s Ability to Comply w ith Treatm ent ................................................................... 2012 C. After Sutton: The Ongoing Denial of ADA Coverage to Nonmitigating Plaintiffs ........................................................... 2013 1. The Continued Role of Speculation in the "Disability" D eterm ination ..................................................................... 2013 Copyright () 2002 California Law Review, Inc. California Law Review, Inc. (CLR) is a California nonprofit corporation. CLR and the authors are solely responsible for the content of their publications. f J.D., School of Law, University of California, Berkeley (Boalt Hall), 2002; B.S., Tufts University, 1994. I wish to thank Califomia Lmv Review editors Heather Rosmarin and Sam Weinstein for their valuable assistance with this Comment. Early drafts also benefited significantly from the suggestions offered by Professor Linda Krieger. Any mistakes are, of course, my own. I would also like to thank other California Lmv Review members and editors who helped prepare this Comment for publication, including Sarah Abbott, Jason Bezis, Jennifer Conners, Sarah Cunningham, Lisa Delehunt, Nick Dierman, Mara Krongard, Donna Maeda, Matt McDermott, and Heather Weaver. Finally, special thanks to Jeffery Eddings, Zoe Lampros, and Stan Shaw for their assistance and support throughout this project. 1981 1982 CALIFORNIA LAW REVIEW [Vol. 90:1981 2. Reliance on a Broad Interpretation of Siefken .........20.1.6........ 3. The Prohibition on Speculation as a New Justification for Denying ADA Protection ....................20.1.7....................... III. Analysis of the Statute's Language, History, and Structure ......2.01.8.... A . Congressional Intent ............................2.01.9................................... B. Existing Law Is Sufficient to Protect the Interests of Employers and Employees Who Decide to Mitigate .......2.0.2.0...... 1. Restrictions and Exemptions that Protect the Interests of Em ployers ..............................2.0.21...................................... a. The "Qualified Individual with a Disability" Requirem ent ............................2.0.21................................... b. The "Direct Threat" Provision ................2.0.2.2.................. c. Misconduct that Severs the Causal Link Between Disability and Discrimination .................2.02.3................... 2. Individuals Who Mitigate Their Impairments Are Protected by the "Record of' and "Regarded as" D efinitions ................................20.2.5........................................ IV. Critique of Proposals that Courts Should Evaluate the Reasonableness of a Plaintiff's Decision Not to Mitigate .......2.0.27...... A. Balancing the Plaintiff s Burden of Mitigation Against the Employer's Burden of Accommodation ...............2.0.2.7................. B. Insertion of an Employee-Focused Reasonableness Test into the Statute's Reasonable Accommodation Requirement... 2030 1. The Proposed Reasonableness Test ................2.03.0.................. 2. Courts' Lack of Statutory Authority to Implement an Employee-Focused Reasonableness Test ............2.0.33............. 3. Considerations Weighing Against Congressional Enactment of the Proposed Reasonableness Test .......2.0.39...... a. Problems with Second-Guessing the Personal Medical Decisions of Disabled Individuals ........2.04.0....... b. Inappropriateness of the Tort Doctrine of Avoidable Consequences in the ADA Context .............2.04.3.............. c. Line-drawing Problems and the Failure of "Easy" Cases to Justify the Proposed Rule .............2.0.4.3.............. C onclusion ........................................2.04.5................................................... 2002) THE ADA AND NONMITIGATING PLAINTIFFS 1983 Why Courts Cannot Deny ADA Protection to Plaintiffs Who Do Not Use Available Mitigating Measures for Their Impairments Sarah Shaw Congress intended the Americans with Disabilities Act ("ADA ') to provide strong standards for addressing and eliminating discrimination against individuals with disabilities.M any commentators have concluded, however, that the federal courts are undermining the goals of the ADA by too narrowly construing membership in the statute's protected class. One example of this trend is courts' hostile treatment of ADA plaintiffs who do not use medications or devices that might alleviate their impairments ("nonmitigating plaintiffs'). Numerous district and appellate decisions have held or suggested that nonmitigatingp laintiffs are not protected by the ADA. In addition, some commentators have proposed that courts should evaluate the reasonablenesso f a plaintiffs decision not to use miti- gating measures; they argue that it is unfair to burden an employer with the cost of accommodating a disability that continues to exist only because an employee unreasonably refuses to mitigate it. Contrary to the views of these courts and commentators, however, this Comment will show that nonmitigatingp laintiffs are entitled to ADA protection from employment discrimination.I t argues that the statute's language, history, and structure, as well as Supreme Court precedent, demonstrate that courts cannot deny ADA protection based on a plaintiff's nonuse of available mitigating measures. It also presents several considerations that weigh against any fitture congressionale nactment that would tie ADA protection to the rea- sonableness ofaplaintif'sd ecision not to mitigate an impairment. INTRODUCTION The Americans with Disabilities Act (the "ADA" or "Act") forbids most employers from discriminating against a "qualified individual with a 1984 CALIFORNIA LAW REVIEW [Vol. 90:1981 disability" on the basis of that individual's disability.' Many commentators have concluded, however, that the federal courts are undermining the goals of the ADA by too narrowly construing membership in the statute's pro- tected class.2 This Comment focuses on courts' hostile treatment of ADA plaintiffs who do not use medications or devices that might alleviate their impairments ("nonmitigating plaintiffs"). Courts have been particularly hostile to nonmitigating plaintiffs. Numerous district and appellate deci- sions have held or suggested that nonmitigating plaintiffs are not covered by the ADA.3 This Comment will show that, to the contrary, nonmitigating plaintiffs are entitled to ADA protection from employment discrimination. There are many reasons why an ADA plaintiff might not use available mitigating measures. A plaintiff might refuse such measures because they have serious side effects or because the treatment will require a lifestyle change that the plaintiff is unwilling to make. Alternatively, the symptoms of a plaintiffs disability might make it difficult to comply with prescribed treatment. For example, individuals suffering from schizophrenia may for- get to take their medication because the disorder causes disorganized think- ing.4 In other situations, plaintiffs may have subjective fears about treatment, such as a strong fear of surgery, which lead them to resist avail- able corrective measures. As this Comment will demonstrate, the statute does not provide a ba- sis for excluding nonmitigating plaintiffs from ADA protection. Further, there is compelling evidence that Congress intended nonmitigating plain- tiffs to fall within the scope of the ADA. Courts denying protection to nonmitigating plaintiffs thus have been unable to ground their decisions in the language or legislative history of the ADA. Instead, these courts have 1. 42 U.S.C. § 12112 (Title I) (1994); id § 12132 (Title II). The ADA is divided into five titles. Title I and Title II address discrimination in the employment context. For a description of which employers are covered by the Act, see infra notes 26-27 and accompanying text. 2. See, e.g., Chai R. Feldblum, Definition of Disability Under Federal Anti-Discrimination Law: What Happened? Why? And What Can We Do About It?, 21 BERKELEY J. EMP. & LAB. L. 91, 139-60 (2000); Linda Hamilton Krieger, Foreword-Backlash Against the ADA: Interdisciplinary Perspectives and Implications for Social Justice Strategies, 21 BERKELEY J. ENIP. & LAB. L. 1, 7-8 (2000); see also Lisa Eichhom, Applying the ADA to Mitigating Measures Cases: A Choice of Statutory Evils, 31 ARIZ. ST. L.J. 1071, 1071 (1999); Steven S. Locke, The Incredible Shrinking Protected Class: Redefining the Scope of Disability Under the Americans with DisabilitiesA ct, 68 U. COLO. L. REV. 107, 108-09 (1997). 3. See infra Part II (discussing Burroughs v. Springfield, 163 F.3d 505 (8th Cir. 1998); Van Stan v. Fancy Colours & Co., 125 F.3d 563 (7th Cir. 1997); Siefken v. Village of Arlington Heights, 65 F.3d 664 (7th Cir. 1995); Brookins v. Indianapolis Power & Light Co., 90 F. Supp. 2d 993 (S.D. Ind. 2000); Tangires v. Johns Hopkins Hosp., 79 F. Supp. 2d 587 (D. Md. 2000); Bowers v. Multimedia Cablevision, Inc., No. CIV.A.96-1298, 1998 WL 856074 (D. Kan. Nov. 3, 1998); Testerman v. Chrysler Corp., No. CIV.A.95-240, 1997 WL 820934 (D. Del. Dec. 30, 1997); Pangalos v. Prudential Ins. Co. of Am., No. 96-0167, 1996 WL 612469 (E.D. Pa. Oct. 15, 1996)). 4. See infra text accompanying notes 197-00. 2002] THE ADA AND NONMTIGATING PLAINTIFFS 1985 fashioned a novel "failure to control a controllable disability" doctrine5 to express their distaste for ADA plaintiffs who have not, in their view, en- gaged in appropriate self-help before requesting special accommodations from their employers. Not only is this doctrine inconsistent with the lan- guage and legislative history of the statute, it conflicts with the Supreme Court's view of how eligibility for ADA coverage should be determined. While the recent Supreme Court case of Sutton v. United Air Lines, Inc.6 did not directly address the issue of nonmitigating plaintiffs, its rea- soning provides an analytical framework that courts must heed.7 The Sutton Court resolved a circuit split regarding the proper way to evaluate the dis- abilities of individuals who voluntarily use mitigating measures such as medications or corrective devices ("mitigating plaintiffs"). In Sutton, the plaintiffs, who suffered from severe visual myopia, asserted that they had a "disability" within the meaning of the ADA even though their vision was 20/20 or better when they wore lenses. In addressing this issue, the Court emphasized that the ADA requires an individualized inquiry into whether a person has an eligible disability and that evaluating the eligibility of miti- gating plaintiffs based on their "uncorrected or unmitigated state" conflicts with this mandated individual inquiry.8 The Court reasoned that if courts and employers were permitted to "speculate" about the unmitigated condi- tion of plaintiffs who currently use mitigating measures, they would often be forced to "make a disability determination based on general information about how an uncorrected impairment usually affects individuals, rather than on the individual's actual condition."9 For this and other reasons, the Court held that the determination of ADA coverage must be based on a plaintiff's present condition, taking into account drugs or devices that a plaintiff uses to mitigate the effects of her impairment." Under Sutton, courts may find that an ADA plaintiff who successfully uses such mitigat- ing measures is no longer sufficiently impaired to qualify for ADA protec- tion."1 The reasoning of the Sutton Court has important implications for nonmitigation cases. Significantly, for a court to conclude that a nonmitigating plaintiff would not be disabled if she used available 5. The quoted phrase first appeared in the holding of Sieficen, 65 F.3d at 667, and has been repeated by some other courts that denied ADA coverage to plaintiffs who did not use available mitigating measures. See, e.g., Burroughs, 163 F.3d at 509 (adopting the language of the Siejken holding as its own holding); Brookins, 90 F. Supp. 2d at 1006 (quoting the Sielken holding). 6. 527 U.S.4 71 (1999). 7. See infra Part II.B (discussing the Sutton case and its implications for nonmitigating plaintiffs). 8. 527 U.S. at 483. 9. Id. 10. Id.a t482. 11. Id.a t 488 (concluding that the plaintiffs did not qualify for ADA protection because their use of corrective lenses rendered them functionally identical to individuals who had perfect vision). 1986 CALIFORNIA LA W REVIEW [Vol. 90:1981 mitigating measures, the court would have to engage in speculation. For example, the court would have to speculate that treatment would be effec- tive for the particular plaintiff, that the side effects of the treatment would not be disabling for the particular plaintiff, and that the symptoms of the particular plaintiff's disability would not prevent her from complying with treatment. As Sutton made clear, the ADA prohibits such speculation be- cause it would require courts to evaluate a particular plaintiff based on the characteristics of a group of people with similar impairments rather than as an individual, thereby contradicting the individualized inquiry mandated by the statute.'2 Thus, Sutton implies that if a plaintiff does not use mitigating measures, her impairment must be evaluated in its present unmitigated state (as opposed to a hypothetical mitigated state). An obvious corollary is that lower courts should not deny ADA coverage based on a belief that a nonmitigating plaintiff would not be disabled if she used available mitigat- ing measures. Since Sutton was decided, at least one district court has correctly ap- plied its logic and refused to engage in a speculative analysis of whether a plaintiff would have qualified for ADA protection had she used a hearing aid.3 However, other courts have continued to deny ADA protection based on an individual's failure to use allegedly appropriate mitigating meas- ures. 4 In addition to critiquing these court decisions, this Comment refutes the main arguments and proposals that have been advanced by commenta- tors who would deny ADA protection to nonmitigating plaintiffs. These commentators seem determined to craft a legal rationale for penalizing an ADA plaintiff who has not engaged in the allegedly requisite amount of self-help before seeking help from society. One set of commentators has explicitly used Sutton's prohibition on speculation as a new justification for denying ADA coverage to plaintiffs who do not mitigate their disabili- ties. They suggest that a plaintiff who does not follow her prescribed treatment regimen should be summarily denied ADA protection if her functioning in a properly mitigated state cannot be evaluated without speculation.5 Another set of commentators has relied on Sutton to support a new balancing test in ADA cases. Under this test, if the burden of reason- able accommodation on the employer outweighs the burden of mitigation on the plaintiff, then the employer should be relieved of its duty of 12. Id. at 482-83. 13. See Finical v. Collections Unlimited, Inc., 65 F. Supp. 2d 1032, 1037-38 (D. Ariz. 1999). 14. See infra Part II.C.1-2 (discussing Tangires v. Johns Hopkins Hosp., 79 F. Supp. 2d 587 (D. Md. 2000) and Brookins v. Indianapolis Power & Light Co., 90 F. Supp. 2d 993 (S.D. Ind. 2000)). 15. See infra Part II.C.3 (discussing the proposal set forth in Perry Meadows & Richard A. Bales, Using MitigatingM easures to DetermineD isability Under the Americans with DisabilitiesA ct, 45 S.D. L. REv. 33, 54-55 (2000)). 2002] THE ADA AND NONMITIGATING PLAINTIFFS 1987 accommodation. 6 Yet another proposal, which was published before Sutton but is still influential, would require courts to apply an employee- focused "reasonableness" test.7 Under this approach, an accommodation is not "reasonable" if an individual with a disability does not take steps "that an ordinarily prudent person would take under the circumstances in an effort to better his condition."'8 The persistence with which courts and commentators seek to deny ADA protection to individuals who do not use available mitigating meas- ures is alarming for several reasons. First, the willingness of many of these courts and commentators to speculate about a plaintiffs functioning in a hypothetical mitigated state arguably reflects the very "stereotypic assumptions" that the ADA was intended to combat.'9 By purporting to know that a treatment will be effective in the plaintiff s particular case, that it will not lead to disabling side effects, and that the plaintiff will be capa- ble of complying with the prescribed treatment, these courts and commen- tators oversimplify the situations of individuals with disabilities. Further, they discount the legitimacy of subjective fears that might motivate an in- dividual to decline available treatment. This dismissive attitude reinforces the view of the disabled individual as a deviant, despite the fact that medi- cal evidence suggests that irrational noncompliance with medical treatment regimens is commonplace in the general population.2" In sum, this Comment will demonstrate that an ADA plaintiff s claim cannot and should not fail solely because she has declined available miti- gating measures. The next section (Part I) presents relevant legal back- ground on the ADA. Part II begins by tracing the development of the "failure to control a controllable disability" doctrine prior to Sutton. It then explains Sutton's prohibition on speculation and presents empirical evi- dence to show that a court cannot evaluate a plaintiffs impairment in a 16. See infra Part IV.A (discussing the proposal set forth in Debra Burke & Malcolm Abel, Ameliorating Medication and ADA Protection: Use It and Lose It or Refuse It and Lose It, 38 Ai. Bus. L.J. 785, 813-17 (2001)). 17. See infra Part IV.B (discussing the proposal advanced in Lisa E. Key, Voluntary Disabilities and the ADA: A Reasonable Interpretation of "Reasonable Accommodations", 48 HASTINGS L.J. 75, 96-103 (1996)). Although published before Sutton, this proposal is still influential because several post- Sutton commentators have made similar suggestions. See, e.g., Burke & Abel, supra note 16, at 813 (including the reasonableness of an employee's decision not to use mitigating measures as a factor in their balancing test); Stephanie A. Fishman, Individuals with Disabilities but Without Mitigating Measures, 46 WAYNE L. REv. 2013, 2033-41 (2000) (contending that a nonmitigating plaintiff is not protected by the ADA unless she can provide a substantial justification for not using available corrective measures). In addition, some might argue that Key's proposal sidesteps the implications of Sutton by focusing on the concept of reasonable accommodation rather than the definition of disability, and by limiting the amount of speculation involved according to the vell-established parameters of the doctrine of avoidable consequences. 18. Key, supran ote 17, at 99. 19. 42 U.S.C. § 12101(a)(7) (1994). 20. See infra text accompanying notes 201-04. 1988 CALIFORNIA LA W REVIEW [Vol. 90:1981 hypothetical mitigated state without engaging in speculation. Finally, Part II demonstrates how subsequent courts and commentators have miscon- strued, ignored or sidestepped Sutton to continue to deny ADA claims based on a plaintiff's nonuse of mitigating measures. To buttress the Sutton analysis, Part III first analyzes the Act's language and history to show that there is no statutory justification for denying an ADA plaintiffs claim solely because she did not use available mitigating measures. Part III then demonstrates that there is no need for a "failure to control a controllable disability" doctrine since the ADA already provides courts with multiple tools to protect the interests of employers. Part III also explains that ADA coverage of nonmitigating plaintiffs need not affect a disabled individual's incentives to mitigate her condition because individuals who successfully use mitigating measures can still receive ADA protection after Sutton. Part IV discusses and refutes several proposals advanced by commentators that would change the law by incorporating the "reasonableness" of a plaintiff's decision not to use mitigating measures into the statute's concept of "reasonable accommodation." I LEGAL BACKGROUND: THE AMERICANS WITH DISABILITIES ACT The ADA was intended "to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities."2 It reflects congressional acknowledgement that "historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem."2 In enacting the ADA, Congress recognized that discrimination against the disabled not only takes the form of "outright intentional exclusion," but that the effects of "architectural, transportation, and communication barriers" designed to cater to the needs of the non-disabled majority can also be discriminatory. 3 The Act states that "the Nation's proper goals regarding individuals with disabilities are to assure equality of opportunity, full participation, independent living, and economic self-sufficiency."24 21. 42 U.S.C. § 12101(b)(2) (1994). This is one of the four purposes of the Act that is expressly stated in its opening section. 22. Id. § 12101(a)(2). This is one of the nine congressional findings presented in the opening section of the Act. 23. Id. § 12101(a)(5). See also John M. Vande Walle, Comment, In the Eye of the Beholder: Issues of Distributive and Corrective Justice in the ADA 's Employment Protectionf or Persons Regarded as Disabled, 73 CHi.-KENT L. REV. 897, 929 (1998) (discussing the legislative history of the ADA). 24. 42 U.S.C. § 12101(a)(8) (1994). This is one of the nine congressional findings presented in the opening section of the Act. 2002] THE ADA AND NONMITIGATING PLAINTIFFS 1989 To achieve its goals, the Act expanded legal protection against em- ployment discrimination for disabled individuals to most public and private employment settings.25 Title I of the ADA covers most employers, includ- ing private employers with more than fifteen employees and public em- ployers such as state and local governments.26 Title II of the ADA generally prohibits disability discrimination by state and local govern- ments, including employment discrimination.' All of the lower court cases that are discussed in this Comment were brought under Title I.21 Therefore, this background section will focus on Title I. Title I of the ADA prohibits covered employers from discriminating against "a qualified individual with a disability" because of the disability of 25. Prior to the enactment of the ADA, the most comprehensive federal legislation prohibiting disability discrimination by employers was the Rehabilitation Act of 1973. See Stephanie Proctor Miller, Comment, Keeping the Promise: The ADA and Employment Discriminationo n the Basis of PsychiatricD isability,8 5 CALIF. L. REv. 701,704 (1997). The Rehabilitation Act only covered federal executive agencies, federal contractors, and entities receiving federal financial assistance. Robert E. Rains, A Pre-History of the Americans with Disabilities Act and Some Initial Thoughts as to its ConstitutionalI mplications, II ST. Louis U. PUB. L. Rev. 185, 190 (1992). The drafters of the ADA and its associated regulations borrowed extensively from the Rehabilitation Act. See Miller, supra, at 708 (noting that ADA terminology such as "qualified individual with a disability," "reasonable accommodation," and "undue hardship" are taken directly from the Rehabilitation Act). For this reason, it is often appropriate to look to Rehabilitation Act regulations and precedent for guidance when interpreting ADA provisions that are substantially similar. See, e.g., Bragdon v. Abbott, 524 U.S. 624, 638-39 (1998) (referring to Rehabilitation Act regulations to decide whether reproduction constitutes a major life activity); Vande Zande v. Wis. Dep't of Admin., 44 F.3d 538, 542 (7th Cir. 1995) (stating that decisions interpreting terms in Rehabilitation Act regulations can be used to determine the meaning of the same terms in the ADA). Congress has expressly provided that the ADA should not be construed to provide lesser standards than those applied under Title V of the Rehabilitation Act and its accompanying regulations. See 42 U.S.C. § 12201(a) (1994). However, it should be noted that there are several respects in which the ADA differs from the Rehabilitation Act, and therefore Rehabilitation Act precedent is not always an appropriate guide. See ZINMER ET. AL., CASES AND MATERIALS ON EMPLOYMENT DISCRIMINATION 741 (5th ed. 2000) (noting that prior to the 1990 Rehabilitation Act amendments, some major differences between the Rehabilitation Act and the ADA were that the Rehabilitation Act did not expressly deny coverage to current users of illegal drugs, that it did not expressly permit employers to discipline employees whose current alcohol use interfered with their job performance, and that it did not expressly mention reassignment to a vacant position as a possible reasonable accommodation). 26. See 42 U.S.C. § 12111(5)(A) (1994). Title I also covers employment agencies, labor organizations, and joint labor-management committees. Id. § 12111(2). The United States and Indian tribes are among the employers excepted from Title I coverage. Id. § 12111(5)(B). 27. See id. §§ 12131-12132. 28. See Burroughs v. Springfield, 163 F.3d 505, 507 (8th Cir. 1998); Van Stan v. Fancy Colours & Co., 125 F.3d 563 (7th Cir. 1997); Siefken v. Village of Arlington Heights, 65 F.3d 664, 666 (7th Cir. 1995); Rose v. Home Depot U.S.A., Inc., 186 F. Supp. 2d 595, 608 (D. Md. 2002); Capizzi v. County of Placer, 135 F. Supp. 2d 1105, 1109 (E.D. Cal. 2001); Hewitt v. Alcan Aluminum Corp., 185 F. Supp. 2d 183, 187 (N.D.N.Y. 2001); Saunders v. Baltimore County, 163 F. Supp. 2d 564, 567 (D. Md. 2001); Tangires v. Johns Hopkins Hosp., 79 F. Supp. 2d 587, 593 (D. Md. 2000); Brookins v. Indianapolis Power & Light Co., 90 F. Supp. 2d 993, 999 (S.D. Ind. 2000); Finical v. Collections Unlimited, Inc., 65 F. Supp. 2d 1032, 1035 (D. Ariz. 1999); Bowers v. Multimedia Cablevision, Inc., No. CIV.A.96-1298, 1998 WL 856074, at *4 (D. Kan. Nov. 3, 1998); Testerman v. Chrysler Corp., No. CIV.A.95-240, 1997 WL 820934, at *7 (D. Del. Dec. 30, 1997); Pangalos v. Prudential Ins. Co. of Am., No. 96-0167, 1996 WL 612469 (E.D. Pa. Oct. 15, 1996).