Wehave found nolegal authority requiring each and every element of a multi-faceted state remedial act to offer equal or greater benefits underall circumstances over a similar federal law in orderto avoid a preemption finding. Rather than dissecting the fee provision as did Hubbard, when Section 55's role and purpose within the CDPA is considered,it represents precisely the kind of state law authorized by 42 U.S.C, section 12201(b)-a law where “the potential available remedies would be greater than those available under the ADA....” (Appen. to 29 C.F.R. § 1630.1, subds.

Rather than dissecting the fee provision as did Hubbard. when Section 55's role and purpose within the CDPAis considered, it represents precisely the kind ofstate law au- thorized by 42 U.S.C. section 12201(b)--a law where "the potential available remedies would be greater than those available under the ADA...." (Appen. to 29 C.F.R. § 1630.1, subds.

More importantly, a plaintiff who is only “regarded as” disabled is not entitled to any accommodations. 42 U.S.C. §12201(h) (employer “need not provide reasonable accommodation…to an individual who meets the definition of disability in section 12102(1) solely under subparagraph (C) of such section”); Kiniropoulos v. Northampton Cty. Child Welfare Serv., 606 F. App'x 639, 642 (3d Cir. 2015) (Plaintiff “was not entitled to a reasonable accommodation because he alleges that he was ‘regarded as’ having an impairment…”).

Individuals who are simply “regarded as” disabled are not entitled to Case 2:15-cv-01935-GMS Document 80 Filed 01/10/17 Page 8 of 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -9- accommodation. 42 U.S.C. § 12201(h); see also, 29 C.F.R. §§ 1630.2(o)(4) and 1630.

Compare, e.g., JetBlue, 2011 WL 3359730, at *13-15 (dismis- sing as field-preempted Unruh and CDPA claims based on alleged inaccessibility of airline website and check-in kiosks, which were “pervasively regulated” by “detailed, comprehensive, national regulation, based on Federal statute” as “part of a broad, complex regulatory scheme” that included “rules [that] provide specific steps to be taken” as to airline websites and kiosks). It is further notable that, unlike the ADA, which allows states to adopt remedies, rights, and procedures offering greater protection for those with disabilities than the ADA affords, see 42 U.S.C. § 12201(b), neither Section 713, nor any other relevant provision of the Federal Com- munications Act, provides such a “savings clause.” While the presence of a savings clause that preserves states’ rights tends to preclude federal preemption, the converse also is true – the absence of such a savings clause, as is the case with Section 713, underscores the intended federal supremacy and the absence of state power to establish closed captioning requirements.5 4 See generally CVAA § 201(e)(1) (47 U.S.C. note).

1 Plaintiff includes both a failure to accommodate claim and a claim based on termination, but a person is not entitled to a reasonable accommodation if he is only “regarded as” being disabled. 42 U.S.C. § 12201(h). 2 Although Defendant quotes the First Amended Complaint as the operative text for this motion, Defendant notes that the initial complaint Worthington filed in this Court alleges only that he sought a “brief” medical leave of absence.

Armstrong v. Burdette Tomlin 2 Plaintiff includes both a failure to accommodate claim and a claim based on termination, but a person is not entitled to a reasonable accommodation if he is only “regarded as” being disabled. 42 U.S.C. § 12201(h). Case 2:17-cv-01360-MMB Document 7-1 Filed 05/24/17 Page 9 of 18 10 Mem'l Hosp., 438 F.3d 240, 246 (3d Cir. 2006) (applying New Jersey law that is interpreted in accord with the ADA).

Plaintiff is not a qualified individual with a disability under the ADA because 6 Under the ADAAA, if Plaintiff is merely perceived as disabled, but has no actual disability, UPS is not required to provide Plaintiff with a reasonable accommodation. See 42 U.S.C. § 12201(h) and 29 C.F.R. §§1630.2(o)(4) and 1630.

…………….…7, 45 Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq........................8, 24, 40, 43 Texas Commission on Human Rights Act ("TCHRA")…………………………………………19 Texas Labor Code § 21.051…………………………………………………………………….…7 29 U.S.C. § 623(a)……………………………………………………………….………………45 42 U.S.C. §§ 12101-12117, 12201-12213…………………………………………………….…24 42 U.S.C. §12111(3)…………………………………………………………………….….……27 42 U.S.C. §12112(d)(4)(A)(1994)………………………………………………………….……24 42 U.S.C. § 12112(b)(5)(A)………………………………………………………………….24, 40 Other Authorities EEOC Enforcement Guidance: Disability-Related Inquiries and Medical Examination of Employees Under the Americans with Disabilities Act at www. www.eeoc.gov/policy/docs/guidance-inquiries

Case 1:16-cv-01038-LJV Document 9-1 Filed 03/16/17 Page 12 of 20 12 The ADAAA, however, expressly excludes claims by a plaintiff who is “regarded as disabled” for alleged denial of reasonable accommodations. 42 U.S.C. § 12201(h) (a covered entity need not provide a reasonable accommodation to an individual who meets the definition of disability solely under the “regarded as” disabled provision). See also Hernandez v. Int’l Shoppes, LLC, 100 F.Supp.3d 232, 251 (E.D.N.Y. 2015) (citations omitted) (employers do not need to reasonably accommodate individuals who do not have an actual disability); Graham v. Three Vill.