A woman who was asthmatic and especially sensitive to cigarette smoke worked in a “no-smoking” area of open cubicles about 60 feet away from the smoking area.  She went on medical leave without pay in March 1990 and filed suit under 42 U.S.C. sec. 1983 and the Rehabilitation Act of 1973 seeking $200,000 in compensatory damages, back pay and reinstatement in a smoke-free environment.  The trial judge (E.D. Va.] granted the defendant’s motion for summary judgment on the section 1983 claim, found that the plaintiff was not handicapped and that the employer had made “reasonable accommodations” for any handicap that might have existed.  The worker appealed, claiming that she was denied due process and equal protection.  On January 13, 1994, a panel of the Fourth Circuit U.S. Court of Appeals affirmed the trial court’s orders, ruling that Gupton was not an “individual with handicaps.”  The court ruled that she did not have an impairment that substantially limits one of her major life activities, i.e., working, because “she presented no evidence that her allergy foreclosed her generally from obtaining jobs in her field.”  On February 8, 1994, the plaintiff’s petition for a rehearing was rejected by the Fourth Circuit U.S. Court of Appeals.  On May 9, 1994, Gupton appealed the decision to the U.S. Supreme Court, arguing that the Fourth Circuit’s ruling contradicts Congress’ stated intent when it enacted the Rehabilitation Act.  The U.S. Supreme Court denied certiorari, at 513 U.S. 810, 130 L.Ed.2d 17, 115 S. Ct. 59 (1994).

14 F.3d 203, 9.1 TPLR 2.24, 2 AD Cases 1672, 62 USLW 2441, 1994 U.S. App. LEXIS 514, No. 92-1319, (4th Cir. 1994).