THOMPSON, Senior Circuit Judge:
Charles W. Gribben appeals the district court's judgment in favor of his employer United Parcel Service ("UPS") in his action alleging disability discrimination and retaliation in violation of the Americans with Disabilities Act ("ADA"). Gribben, who suffers from congestive heart failure and cardiomyopathy, requested and was denied accommodations for certain limitations imposed by his cardiologist. The district court granted summary judgment in favor of UPS on the discrimination claim and a jury returned a verdict in favor of UPS on the retaliation claim. We have jurisdiction under 28 U.S.C. § 1291. We affirm the jury verdict in favor of UPS on the retaliation claim, reverse the district court's summary judgment in favor of UPS on the disability claim, and remand that claim to the district court for further proceedings.
In 1982, Gribben commenced employment with UPS and since 1998 worked as a UPS shifter driver. Shifter drivers use vehicles to transfer trailers among various sites. Gribben was generally assigned to an air-conditioned vehicle but, due to business demands, UPS could not guarantee that he would always have an air-conditioned vehicle.
In June 2000, Gribben was diagnosed with dilated cardiomyopathy and paroxysmal arterial fibrillation. He has substantial limitations as a result of this condition. He testified that he becomes light-headed, has difficulty concentrating and breathing, has chest pain when undertaking activities in extreme heat for extended periods of time, and has similar symptoms when lifting weight over 50 pounds. Gribben was told by his cardiologist not to engage in certain activities for more than 20 minutes at a time in temperatures above 90 degrees Fahrenheit.
Due to his medical condition, and pursuant to the ADA, Gribben requested that UPS provide him with an air-conditioned vehicle. UPS denied his request for this accommodation. Beginning in June 2002, Gribben took an unpaid leave of absence.
In June 2003, Gribben returned to work at UPS. Although UPS had denied Gribben's request for accommodation, UPS nonetheless provided him with an air-conditioned vehicle for every workday from June 2003 until March 31, 2004. On March 31, 2004, when UPS failed to provide an air-conditioned vehicle for Gribben to use, he refused to work. He was then discharged by UPS. UPS contends that Gribben was discharged for gross insubordination, while Gribben asserts that he was discharged in retaliation for the EEOC charge.
On April 1, 2004, following his termination, Gribben filed a second charge with the EEOC, alleging retaliation in violation of the ADA. The EEOC investigated that charge and issued a second favorable cause finding. After obtaining the requisite Notice of Right to Sue, Gribben filed suit.
The district court granted summary judgment in favor of UPS on Gribben's claim of ADA discrimination; the retaliation claim went to trial. In response to a motion in limine, the district court ruled that Gribben had not specifically pled facts pertaining to his contentions concerning fitness for duty and forced unpaid medical leave as part of his retaliation claim and refused to allow the jury to consider those matters. Consequently, the only issue left for the jury to decide was whether Gribben's March 31, 2004 termination was in retaliation for Gribben having filed his first charge of discrimination with the EEOC.
The jury rendered its verdict in favor of UPS and the district court entered judgment accordingly. Gribben timely filed a Motion for New Trial raising claims of error regarding the trial court's summary judgment and its rulings on UPS's motion in limine and on evidentiary and jury instruction matters. That motion was denied. Gribben now appeals the district court's summary judgment in favor of UPS on his ADA discrimination claim, and the district court's denial of his motion for a new trial on his retaliation claim.
A. ADA Claim
We review de novo a grant of summary judgment. See Summers v. A. Teichert & Son, Inc., 127 F.3d 1150, 1152 (9th Cir.1997). Viewing the evidence in the light most favorable to the nonmoving party, we must determine whether there is a genuine issue of material fact and whether the district court correctly applied the relevant substantive law. See id.
The ADA prohibits discrimination against a qualified individual with a disability in regard to terms, conditions and privileges of employment. 42 U.S.C. § 12112(a). The ADA defines "disability" as "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12102(2).
Whether Gribben's heart condition constituted a disability under the ADA involves three inquiries: (1) whether Gribben's condition was a physical impairment; (2) whether the life activities from which he was impaired (e.g., walking) amounted to major life activities; and (3) whether Gribben's impairment substantially limited him from performing the identified major life activities. Bragdon v. Abbott, 524 U.S. 624, 631, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998).
"Substantially limits" is defined as:
29 C.F.R. § 1630.2(j)(1) (2006).
The regulations further provide that whether someone is substantially limited in a major life activity is to be examined using such factors as:
29 C.F.R. § 1630.2(j)(2) (2006).
The district court considered Gribben's claim under this framework and determined that his disability was not substantially limiting "on its face" because he was able to perform the major life activities at issue.
Gribben's testimony alone regarding the significance of his impairment is sufficient to create a genuine issue of material fact at the summary judgment stage. See Head v. Glacier Nw., Inc., 413 F.3d 1053, 1058 (9th Cir.2005) ("[O]ur precedent supports the principle that a plaintiff's testimony may suffice to establish a genuine issue of material fact."). As a result, Gribben was not required to submit the comparative evidence the district court required. Id. ("Ninth Circuit precedent does not require comparative or medical evidence to establish a genuine issue of material fact regarding the impairment of a major life activity at the summary judgment stage.").
There was sufficient evidence in the record at the summary judgment proceeding to establish a genuine issue of material fact as to whether Gribben's impairment was substantial and limited his ability to perform regular daily activities including breathing, thinking and physical activities in temperatures of 90 degrees or more. Accordingly, the district court erred in determining at summary judgment that Gribben was not disabled within the meaning of the ADA.
B. Retaliation Claim
Gribben appeals certain evidentiary rulings made during the jury trial of his retaliation claim. We review evidentiary rulings for an abuse of discretion. See Tritchler v. County of Lake, 358 F.3d 1150, 1155 (9th Cir.2004). Gribben contends that he was denied the opportunity to elicit testimony about UPS's failure to personally speak to his treating physician about his accommodation request. This argument was not presented to the district court, and therefore it has been waived.
Gribben contends the district court erred in excluding the testimony of Charles Rahill which he offered "strictly for impeachment purposes" and as to which he would have agreed to a limiting instruction. The evidence was excluded on the ground that Gribben had failed to disclose it in pretrial discovery. We agree
We conclude that the error in excluding Rahill's testimony was not prejudicial. Jerry Dalzell, a UPS labor relations manager, was the person who made the decision to terminate Gribben. Although the excluded testimony which Rahill would have given may have evidenced Dalzell's knowledge of findings by the EEOC, it would not have contradicted Dalzell's testimony. As a result, the district court's error was not prejudicial. See Geurin v. Winston Indus., Inc., 316 F.3d 879, 882 (9th Cir.2002).
Other excluded evidence would have established that a conversation took place between Dalzell and another UPS manager, Steve Stevens. However, Dalzell did not deny that this conversation took place—only that he did not recall it. The exclusion of this evidence was insufficient to taint the jury's verdict. See McEuin, 328 F.3d at 1032; Geurin, 316 F.3d at 882.
Gribben argues the district court should have admitted UPS's prior consent decree with the EEOC, which UPS agreed to in 2001 as part of a "no-fault" settlement. The district court excluded the consent decree on the ground that its probative value was outweighed by its potential for prejudice. Gribben has provided no argument on appeal that would establish that the district court erred in this ruling. In any event, the district court did not abuse its discretion in refusing to admit the consent decree because it was irrelevant and would have been unduly prejudicial, confusing, and misleading. See Fed. R.Evid. 402, 403.
Finally, we conclude that the district court did not err in refusing to give the jury a punitive damages instruction. The jury determined that the evidence was insufficient to establish a claim for retaliation. This determination supports the district court's decision that the same evidence was insufficient to warrant an instruction on punitive damages. See Altera Corp. v. Clear Logic, Inc., 424 F.3d 1079, 1087 (9th Cir.2005) (error in instructing the jury does not require reversal if harmless). A punitive damages instruction may, however, be warranted in connection with Gribben's disability discrimination claim which we remand to the district court. We express no opinion on that.
The parties shall bear their own costs on appeal.