BAER, Senior District Judge:
Larry Rohr appeals the district court's grant of summary judgment in favor of his former employer, Salt River Project Agricultural Improvement and Power District ("Salt River"). Rohr, who is an insulin-dependent type 2 diabetic, brought suit for employment discrimination in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101, et seq. Because the district court erred in concluding that Rohr was neither "disabled" nor a "qualified individual" under the ADA, we vacate the district court's order of summary judgment and remand for further proceedings consistent with this opinion.
At the outset, we note that on September 25, 2008, while this decision was pending, the ADA Amendments Act of 2008 ("ADAAA") was signed into law in order "[t]o restore the intent and protections of the Americans with Disabilities Act of 1990." Pub.L. No. 110-325, 122 Stat. 3553 (2008). In the ADAAA, Congress emphasizes that when it enacted the ADA in 1990, it "intended that the Act `provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities' and provide broad coverage." Id. § 2(a)(1), 122 Stat. at 3553 (emphasis added). The ADAAA rejects the Supreme Court's interpretation of the term "disability" in Sutton v. United Air Lines, Inc., 527 U.S. 471, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999), and Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002), and thereby expands the class of individuals who are entitled to protection under the ADA. Id. § 2(b), 122 Stat. at 3553. Indeed, Congress signifies that as a result of these Supreme Court cases, "lower courts have incorrectly found in individual cases that people with a range of substantially limiting impairments are not people with disabilities." Id. § 2(a)(5), 122 Stat. at 3553.
Although the ADAAA, if applicable, would provide additional support for Rohr's claims in this case, we hold that, even under our pre-ADAAA case law, Rohr provided sufficient evidence that he was a "qualified individual" with a "disability" under the ADA to survive summary judgment. We therefore need not decide whether the ADAAA, which took effect on January 1, 2009, applies retroactively to Rohr's claims.
A. Rohr's Job at Salt River
From May 1981 to June 14, 2004, Rohr worked as a welding metallurgy specialist in the Plant Technical Support Group at Salt River, which provides utility services to homes in Arizona.
As a metallurgy specialist, Rohr was primarily responsible for overseeing all aspects of Salt River's welding procedures, maintaining Salt River's welding manual, training all welding personnel, reviewing and auditing the work of subcontractors, ensuring that all welding procedures complied with applicable codes and specifications, advising Salt River on the purchase of new welding equipment, and counseling less experienced welders.
The Plant Technical Support Group was rarely required to travel, but occasionally, when outages occurred, i.e., when one of Salt River's generators stopped producing power, "borrowed hands" were requested.
B. Rohr's Diabetes Diagnosis
Rohr was diagnosed as an insulin-dependent type 2 diabetic in 2000. From that time, the medical necessities of insulin injections, medicine, blood tests and a strict diet have been fixtures of his daily life.
Within a few years of the onset of his diabetes, Rohr's medical condition affected his position at Salt River in two respects. First, pursuant to Occupational Health and Safety Administration ("OSHA") guidelines, Salt River required all employees who might be required to use a respirator, which included the Plant Technical Support Group, to obtain and renew a respirator certification annually; this necessitated a yearly medical evaluation. Although Rohr had successfully renewed his respirator medical certification for at least ten years, in 2003 Salt River's Health Services Department refused to administer the breathilator portion of the test to Rohr because of his high blood pressure, which was related to his diabetes.
Second, in August 2003 Rohr learned that he would be assigned to work on what promised to be a five- or six-week project to repair an outage at Salt River's Navajo Generating Station in Page, Arizona.
His letter explained that while his diabetes had been first diagnosed in 2000, he had likely had the disease for a much longer time. It was not until recently, however, that diabetes significantly affected his work and personal life.
As accommodations for the efforts required to control his diabetes, Rohr requested that he not be required to drive for more than three or four hours at a time, engage in strenuous activities, work more than an eight- or nine-hour shift, work in extreme heat, climb scaffolding or ladders, work around moving machinery, or go on overnight out-of-town travel.
C. Rohr's Permanent Work Restrictions
A nurse at Salt River's Employee Health Services Department received Rohr's letter and instructed Rohr's supervisors to refrain from sending him on out-of-town travel, including the outage at the Navajo Generating Station, until he could obtain his doctor's opinion.
About a week later, a doctor employed by Salt River, Dr. Timothy Woehl, examined Rohr and prepared a list of permanent work restrictions:
About five months later, on February 19, 2004, Dr. Woehl reexamined Rohr and reported to Rohr's supervisor that the recommended permanent restrictions remained unchanged. He stated that "[i]t remains my opinion that Mr. Rohr is physically able to perform the essential functions of his job with the accommodations as outlined."
On March 16, 2004, Rohr's supervisors and the Salt River Labor Relations Department told Rohr that his work restrictions were preventing him from performing the essential functions of his job, such as overnight travel to assist as a borrowed hand during outages and travel to conduct inspections and trainings. They presented Rohr with three options: (1) remain in his position for up to ninety days while he pursued another position within Salt River that would be consistent with his work restrictions; (2) apply for disability benefits; or (3) take early retirement. Rohr was given until June 14, 2004 to make his choice.
D. Rohr Requests Removal of Travel Restriction
Rohr then wrote to his doctor, Dr. Dippe, stating that he did not believe his medical condition prevented him from doing any travel and that Salt River had misinterpreted the doctor's recommendation to mean that he should refrain from
Nearly a week later, Dr. Woehl informed Rohr's supervisors that, despite Dr. Dippe's note, he was not in favor of lifting the travel restriction unless Dr. Dippe could produce medical documentation and an explanation as to why Rohr could now travel, since Rohr had pled his case against out-of-town overnight travel at great length. Dr. Woehl indicated he was concerned that Rohr was trying to manipulate Dr. Dippe and Salt River to remove his travel restriction "for other than medically necessary reasons."
Several weeks later, in a letter dated May 20, 2004, Dr. Woehl asked Dr. Dippe to explain how Rohr's medical condition had materially changed, so that he now could travel safely out of town and overnight.
Rohr claims that he would have been able to travel to power plants to perform inspections or conduct trainings, as these activities did not conflict with his restrictions, and that Salt River should have permitted him to do so. His restrictions, however, did not permit him to travel to work as a "borrowed hand" during plant outages, as this type of assignment involved climbing, hot and hazardous environments and long hours.
On June 14, 2004, Rohr informed Salt River that he chose the option of applying for disability benefits. He began a leave of absence the next day, and the day thereafter filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"), alleging that Salt River discriminated against him on the basis of both age and disability.
In December 2004 Rohr filed suit in federal court.
We review de novo the district court's grant of summary judgment. 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
The ADA prohibits employers from "discriminat[ing] against a qualified individual with a disability," 42 U.S.C. § 12112(a), and requires employers to provide "reasonable accommodations to the known physical or mental limitations of an otherwise qualified [employee] with a disability," id. § 12112(b)(5)(A). The district court held that Rohr was not entitled to ADA protections because he failed to raise a material issue of fact concerning whether he had a "disability" within the meaning of the ADA, and because his inability to complete the respirator certification test rendered him unqualified for his position. We disagree with both holdings.
The ADA defines "disability," in pertinent part, as "a physical or mental impairment that substantially limits one or more of the major life activities of such individual." 42 U.S.C. § 12102(2). Diabetes is a "physical impairment" because it affects the digestive, hemic and endocrine systems, and eating is a "major life activity."
1. Rohr's Insulin-Dependent Diabetes May Qualify As a Disability
To determine whether an insulin-dependent type 2 diabetic like Rohr is substantially limited in his eating, we must compare "the condition, manner or duration under which he can [eat] as compared to the condition, manner or duration under which the average person in the general population can [eat]." Fraser, 342 F.3d at 1040 (internal quotation marks omitted). The fact that a plaintiff "simply differs from the average person in how she performs a major life activity is patently insufficient for a substantial limitation." Id. (emphasis in original). Rather, in deciding whether the impairment is substantially limiting, courts "must consider the nature and severity of the [plaintiff's] impairment, the duration or expected duration of the impairment, as well as the permanent or long term impact of the impairment." Id. at 1038 (internal citations omitted).
At the summary judgment stage, "precedent does not require comparative
Finally, we must consider not only whether the symptoms of Rohr's diabetes substantially limit one of his major life activities, but also whether his efforts to mitigate the disease constitute a substantial limitation. The Supreme Court directed in Sutton that "if a person is taking measures to correct for, or mitigate, a physical or mental impairment, the effects of those measures—both positive and negative—must be taken into account when judging whether that person is `substantially limited' in a major life activity and thus `disabled' under the Act." 527 U.S. at 482, 119 S.Ct. 2139. We therefore consider the effectiveness, side effects and burdens of a plaintiff's mitigating measures. Id. at 482-84, 119 S.Ct. 2139.
We conclude that Rohr has raised a genuine issue of material fact as to whether his diabetes substantially limits his life activity of eating. The record is replete with statements, both by Rohr and his doctors, that to manage his disease Rohr is required to strictly monitor what, and when, he eats. Rohr stated that these restrictions constrain him every day, "whether it's a workday, a weekend or a holiday."
The district court oversimplified Rohr's condition when it opined that "if he stays on his medicines and watches what and when he eats the only limitation on his activities are the work-related restrictions recommended by his physicians."
If daily insulin injections alone more or less stabilized Rohr's blood sugar levels, such that any limitation imposed on his diet would be minor, then Rohr's major life activity of eating might not be substantially limited. See, e.g., Ingles v. Neiman Marcus Group, 974 F.Supp. 996, 1001-02 (S.D.Tex.1997) (holding that diabetic plaintiff who was merely required to maintain a "normal, good, healthy diet" was not substantially limited; plaintiff's condition was substantially controlled with oral medication, and he did not have to take insulin). However, Rohr has alleged substantial limitations on his eating in spite of his medicine and insulin. He must snack regularly, plan his daily schedule around his diet, avoid skipping meals and eat immediately when he feels dizzy or light-headed. The general population does not have to "snack on something every few hours" to regulate sugar intake; moreover, the general population is not medically required to plan daily schedules around a dietary regimen.
In short, Rohr has raised a genuine issue of material fact as to whether he is "significantly restricted as to the condition, manner or duration" in which he can eat, compared to the general population. See Fraser, 342 F.3d at 1038-40. Indeed, this court and others have found a sufficient showing of a substantial limitation on considerably less evidence than Rohr has presented. See, e.g., Head, 413 F.3d at 1058; Gonsalves v. J.F. Fredericks Tool Co., Inc., 964 F.Supp. 616, 621 (D.Conn.1997) (plaintiff's statement that he had difficulty sleeping and eating was "sufficient to permit a finding that his diabetes substantially limited a major life activity."). Therefore, a genuine issue of fact exists as to whether Rohr has a disability, and summary judgment should not have been granted.
2. The Americans with Disabilities Act Amendments Act of 2008
On September 25, 2008, two months after the parties' oral argument before this
a. ADAAA Calls for Broad Construction of "Disability"
The ADAAA explicitly rejects several Supreme Court decisions that defined "disability" more narrowly than many of the ADA's original Congressional proponents had intended. See H.R.Rep. No. 110-730, at 5 (2008) (H. Comm. on Educ. & Labor). Beginning in January 2009, "disability" was to be broadly construed and coverage will apply to the "maximum extent" permitted by the ADA and the ADAAA. 122 Stat. at 3553.
The ADAAA explains that "[w]hile [in enacting the ADA] Congress expected that the definition of disability under the ADA would be interpreted consistently with how courts had applied the definition of a handicapped individual under the Rehabilitation Act of 1973, that expectation has not been fulfilled." Further, "the holdings of the Supreme Court in Sutton v. United Air Lines, Inc., 527 U.S. 471, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999) and its companion cases have narrowed the broad scope of protection intended to be afforded by the ADA, thus eliminating protection for many individuals whom Congress intended to protect." 122 Stat. at 3553.
b. ADAAA Alters Supreme Court's Standards for "Disability"
The ADAAA clarifies Congress's intent with respect to the term "disability" in three major ways that could affect whether ADA protections are extended to persons with diabetes. First, the law makes clear that eating is a major life activity under the Act.
Third, and perhaps most significantly, the ADAAA rejects the requirement enunciated in Sutton that whether an impairment substantially limits a major life activity is to be determined with reference to mitigating measures. Id. The ADAAA makes explicit that the "substantially limits" inquiry "shall be made without regard to the ameliorative effects of mitigating measures such as ... medication, medical supplies, equipment, or appliances ...; use of assistive technology; reasonable accommodations or auxiliary aids or services; or learned behavioral or adaptive neurological modifications."
While we decide this case under the ADA, and not the ADAAA, the original congressional intent as expressed in the amendment bolsters our conclusions.
B. "Qualified Individual"
To state a claim of discrimination under the ADA, a plaintiff must establish that he or she is a "qualified individual." See 42 U.S.C. § 12112(a). The ADA defines a "qualified individual," in pertinent part, as "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position. ..." 42 U.S.C. § 12111(8). The individual must also "satisf[y] the requisite skill, experience, education and other job-related requirements of the position." Bates v. United Parcel Service, Inc., 511 F.3d 974, 990 (9th Cir. 2007) (en banc). The district court concluded that Rohr was not qualified for his position as a welding metallurgy specialist because beginning in 2003 he did not obtain the required annual respirator certification. We disagree.
1. Respirator Certification Test
Rohr argues that the respirator certification test was itself discriminatory. The ADA defines "discriminate," inter alia, as
42 U.S.C. § 12112(b)(6) (emphasis added).
It is undisputed that the respirator certification test "screen[ed] out" Rohr due to his high blood pressure, which was a complication of his diabetes. The district court held, however, that the test was not discriminatory because it was "job-related" and "consistent with business necessity."
Once an employee shows that a qualification standard tends to screen out an individual with a disability, the employer shoulders the burden of proving that the challenged standard is job-related and consistent with business necessity. See Bates, 511 F.3d at 993.
Salt River asserts that its respirator certification test, including the breathilator test, was a business necessity because it is mandated by OSHA. However, OSHA's requirements are not so specific. OSHA obliges an employer to provide respirators "when such equipment is necessary to protect the health of the employee." 29 C.F.R. § 1910.134(a)(2). Further, the employer must establish and maintain a written "respiratory protection program" that includes, inter alia, "[m]edical evaluations of employees required to use respirators." 29 C.F.R. § 1910.134(c)(1)(ii). OSHA's
This is not a case where an employer merely implemented the medical certification program required by a federal agency. Cf. Shields v. Robinson-Van Vuren Assocs., No. 98 Civ. 8785, 2000 WL 565191, at *1 (S.D.N.Y. May 8, 2000). Rather, OSHA's regulations were sufficiently broad to allow Salt River the discretion to determine how, and how often, it would evaluate its employees' ability to use a respirator. As such, there is a genuine issue of fact whether Salt River could have provided reasonable accommodations to enable Rohr to complete the test. Indeed, the ADA provides that "[t]he prohibition against discrimination ... shall include medical examinations and inquiries." 42 U.S.C. § 12112(d). Salt River has failed to show the necessity of the particular breathilator test that it used in the evaluation, or the absence of any alternative respiratory evaluation appropriate for individuals with high blood pressure.
Salt River also failed to show that the certification test was related to Rohr's job. "To show `job-relatedness,' an employer must demonstrate that the qualification standard fairly and accurately measures the individual's actual ability to perform the essential functions of the job." Id. at 996. Salt River has failed to show that Rohr carried a respirator, including when he was working in the field during an outage, or that respirators were readily accessible in the areas in which Rohr was assigned to work. Rohr disputes the relevance of the certification and argues that in twenty-three years as a welding specialist, he never had to use a respirator. As the respirator test would be job-related only if there was a possibility that Rohr would have to use a respirator, Salt River has not met its burden with respect to job-relatedness.
Therefore, because Salt River has failed to show that the respirator certification test was job-related and a business necessity, and because the test tended to screen out an individual with diabetes-related high blood pressure, Salt River has not established that it is entitled to summary judgment. See Bates, 511 F.3d at 990 ("[I]t would make little sense to require an ADA plaintiff to show that he meets a qualification standard that he undisputedly cannot meet because of his disability and that forms the very basis of his discrimination challenge.").
2. "Essential Functions" of Rohr's Position
Apart from the respirator certification test, it is undisputed that Rohr met all of Salt River's qualification standards for a welding metallurgy specialist, a position Rohr held for more than twenty years. Whether Rohr was "qualified" for the position, therefore, turns on whether he could perform the essential functions of his position with or without reasonable accommodation.
Rohr has raised a genuine issue of whether he could perform the "essential functions" of his position with accommodation. Essential functions are "fundamental job duties of the employment position ... not including the marginal functions of the position." See Bates, 511 F.3d at 988 (quoting 29 C.F.R. § 1630.2(n)(1)). The ADA requires that in assessing a position's essential functions, "consideration shall be given to the employer's judgment as to what functions of a job are essential," including any written job descriptions prepared "before advertising or interviewing applicants for the job." 42 U.S.C. § 12111(8). Such evidence, however, is not conclusive: "an employer may not turn every condition of employment which it elects to adopt into a job function, let alone an essential job function, merely by including it in a job description." Cripe, 261 F.3d at 887 (quotation marks omitted). Diabetes did not prevent Rohr from performing the bulk of his job, which, as described supra, was mostly office work. The disease did, however, prevent him from participating in out-of-town and overnight field assignments to repair outages. The parties dispute whether such field assignments were an "essential function" of his job, and Salt River's own medical staff stated that he was "physically able to perform the essential functions of his job with the accommodations as outlined."
Therefore, drawing all inferences in favor of Rohr, as we must at this stage of the litigation, there is a genuine issue of fact as to whether Rohr was qualified for his position.
The district court erred in granting summary judgment to Salt River. Rohr presented a genuine issue of material fact that his diabetes substantially limited his major life activity of eating and thus raised a genuine issue as to whether he was "disabled" within the meaning of the ADA. Rohr also raised a genuine issue as to whether he was "qualified" for his position within the meaning of the ADA, since with the exception of the respirator certification requirement, which may itself be found to be discriminatory, he provided sufficient evidence that he satisfied all of Salt River's job-related requirements and could perform the essential functions of his position.
The decision is vacated and remanded to the district court for further proceedings consistent with this opinion.