The plaintiff, an asthmatic, brought a lawsuit under the Rehabilitation Act of 1973, 29 U.S.C. secs. 791 and 794, alleging that her employer, the Department of Transportation, failed to accommodate her condition and failed to prevent a hostile working environment by allowing other employees to smoke in the air traffic control tower where she worked.  DeCastro alleged that she suffered seven asthma attacks, triggered by exposure to secondhand smoke, between April 2003 and January 2006.  None of the attacks required overnight hospitalization.  The district court granted summary judgment to the defendant, ruling that DeCastro’s asthma was not a disability within the meaning of the Rehabilitation Act.  The seven incidents “pose a hardship for plaintiff and indicate that she is, to some extent, limited as compared to an average person, they are not substantial enough to bring plaintiff within the purview of the Rehabilitation Act.”  This is so because “plaintiff’s discrete, intermittent, and relatively short exacerbations of symptoms do not impose a substantial limitation on any life activity.”

2009 WL 1067030 (E.D. N.Y. 2009).