WELLINGTON v LYON COUNTY, 9717366
U.S. 9th Circuit Court of Appeals
WELLINGTON v LYON COUNTY
9717366
MICHAEL WELLINGTON, anindividual,Plaintiff-Appellant,v.No. 97-17366THE LYON COUNTY SCHOOLD.C. No.DISTRICT, a Lyon CountyCV-95-00588-ECRSubdivision; THE LYON COUNTYOPINIONBOARD OF TRUSTEES, a LyonCounty Subdivision; NATLOMMORI, an individual; DOES I-X,Defendants-Appellees.
Appeal from the United States District Courtfor the District of NevadaEdward C. Reed, Jr., District Judge, PresidingArgued and SubmittedFebruary 10, 1999--San Francisco, CaliforniaFiled August 23, 1999Before: Phyllis A. Kravitch,1 Stephen Reinhardt, andThomas G. Nelson, Circuit Judges.Opinion by Judge T.G. NelsonSUMMARY
______________________COUNSEL Carl F. Hylin and John N. Schroeder, Reno, Nevada, for theplaintiff-appellant.Michael A. Nivinskus and C. Robert Cox, Walther, Key,Maupin, Oats, Cox, Klaich & LeGoy, Reno, Nevada, for thedefendants-appellees.
_____________________________OPINION T.G. NELSON, Circuit Judge:Michael Wellington appeals the district court's grant ofsummary judgment in favor of the Lyon County School Dis-trict ("School District") on his claim that the School Districtviolated the Americans With Disabilities Act of 1990 (the"ADA"), 42 U.S.C. SS 12101-12231, when it terminated hisemployment. We have jurisdiction under 28 U.S.C.S 1291.We reverse.I.Wellington was hired to perform maintenance for theSchool District in 1989. In August 1992, he developed carpaltunnel syndrome due to the repeated motion with tools andpulling on his wrists that he encountered in his maintenanceposition. The carpal tunnel syndrome caused pain, weaknessand numbness in Wellington's hands, arms and shoulders. InSeptember 1992, Wellington went on worker's compensationleave under the Nevada State Industrial Insurance System("SIIS").For the first few months Wellington was on leave, he regu-larly golfed and bowled. Wellington's doctor then advisedhim to not participate in these activities, and Wellingtonstopped. In January 1993, Wellington underwent surgery toalleviate his condition, and in March 1993, he was released byhis doctor to return to work.By August 1993, Wellington's symptoms returned, and heagain went on SIIS leave. While on leave the second time, hewas examined by Dr. Christensen who determined that evenwith additional surgery, Wellington would be permanentlylimited to "lighter type activities." Dr. Christensen prescribedlimitations on the lifting activity Wellington could engage inat work as follows: "occasional" (i.e. 1% to 33% of an eight hour work day) lifting of 20 pounds; "frequent" (i.e. 34% to 66% of an eight hour work day) lifting of 10 pounds; avoid highly repetitive activities.In accordance with these limitations, when Wellingtonreturned to work for the School District in the spring of 1994,he was assigned to fill temporary light duty positions. Wel-lington was initially assigned a "mail run" job as a courier,and was later assigned to assist in setting up a school districtsafety program.On June 21, 1994, SIIS wrote a letter to the School Districtinforming the School District that, in view of the limitationsprescribed by Dr. Christensen, Wellington would not be "ableto return to [his prior] job unless it is modified." SIIS alsoinformed the School District that if it could not provide anappropriate position for a person of Wellington's physicallimitations, Wellington would need to be trained for a newjob. SIIS gave the School District thirty days to notify SIIS ofits intent to offer Wellington an appropriate position.The Lyon County Board of School Trustees ("Board") metin a closed session on July 12, 1994, to discuss whether Wel-lington's job with the safety program should be made into apermanent position. At this meeting, School District superin-tendent Nat Lommori briefly explained Wellington's historyand the notice from SIIS stating: We are down to the fish or cut bait time with [Wel- lington]. We have gotten the notice that we can either offer him a job that meets his essential func- tions as [SIIS] calls it, or we can have him go away and we will pay for retraining and all of those things in his future until he is permanently employed some- where else.Lommori also mentioned that there were some concernssurrounding Wellington's claim of a disability, explaining: Let me tell you, we've questioned [his injury caused by carpel tunnel syndrome]. Anyhow, what we can do is I guess we have two options--one we can keep the man and put him in that kind of job he is working now, kind of a light duty position. . . . Then all of the training and everything else will still be on us but at least we would get the benefit of that. The only prob- lem I have, and I've discussed this with [Welling- ton], is over this last two year period of time he has had two major times off. His first time off we had some problems because he was bowling and playing golf. We're not doctors, but we are telling you perception-wise you're killing yourself with your fellow employees when you're out there doing these kinds of activities and out with that kind of an injury.Lommori acknowledged to the Board that there were cer-tain benefits, as well as drawbacks, to having Wellington filla safety position: [T]here are some positives to that because[Welling- ton] has knowledge of construction trades and he could go around to all of our schools and help them understand where we have some unsafe conditions and such and how we can improve that. That would be playground equipment, all those kinds of things, bleachers and such. The negative part of this, though, is I think that he is going to have a problem with some of his fellow employees in the district because there have been several of them that think he's milked the system and he kind of hurt himself in their eyes and he would have to overcome that. I've talked to him about that--if we even consider [him] that would be a problem.When asked whether the Board would be creating a job tofind a position for Wellington, Lommori replied:"This is cre-ating a job. One way or the other we are creating a job. Butit's one job that we need to have done in this district rightnow."Another administrator, Mary Goodman, mentioned otherbenefits to hiring Wellington for the safety position, stating: His attitude has been very good since he has been back and he's really done a lot of research finding out exactly what OSHA requirements are and what not, and he is becoming quite knowledgeable already in what we need to do and he has somewhat of a rap- port with the OSHA representatives.A member of the Board also expressed his support for Wel-lington, stating that despite the appearance that "he was milk-ing the system," Wellington is a loyal employee. I do believe [Wellington ] will give you 110% and as I understand it a lot of what was happening was the doctors telling him you can't go to work, but do what you want to do. I think he made a mistake by bowling and golfing. I agree with you wholeheartedly, but by the same token he was told not to go to work. The point I am trying to make is I like [Wellington]. When he was working full time he was a dedicated employee.Another member of the Board also expressed his approvalfor hiring Wellington for the safety position, stating: "If yougo along with a program like this what you do is you do tendto spend an equal amount of money in training, but youreceive a loyal employee. I don't think our chances of losingare very good. Our chances of winning are very good."Despite all of the positive considerations expressed forplacing Wellington in a permanent safety position, at least oneBoard member expressed reservations, asking: "What's thepossibility of setting a precedent for another employee todecide, `well, I'll get myself a cushy job.' "At the end of the meeting, the Board had failed to reach aconsensus on whether to hire Wellington for a permanentsafety position, and the matter appears to have been left in thehands of Lommori. Lommori ultimately decided not to offerWellington a permanent position in the safety program, andWellington's employment with the School District was termi-nated on July 20, 1994.2On July 26, 1994, the Board held another meeting where itfollowed up on Wellington's case. At this meeting, Lommorireported: After a week of deliberation in my office -- of lis- tening to several folks, I decided it would be best for the entire district not to offer the position and have [Wellington] go into SIIS and get into the rehab/ retraining program. It appeared that there was enough concern with our other folks already in the district. I don't want to put a pebble in everybody's shoe and have them get a blister over this whole thing when I think things are going pretty well in the district. I just don't want to upset the apple cart.In August 1994, Wellington filed a complaint with theNevada Equal Rights Commission. After receiving a right tosue letter, he filed a complaint in district court alleging thatthe School District violated the ADA when it terminated hisemployment. The district court granted summary judgment infavor of the School District. Wellington timely appeals.II.A grant of summary judgment is reviewed de novo .Margolis v. Ryan, 140 F.3d 850, 852 (9th Cir. 1998). Sum-mary judgment is proper only if, viewing the evidence in thelight most favorable to the party opposing the motion, thecourt finds that no genuine issue of material fact exists, andthat the movant is entitled to judgment as a matter of law. SeeThompson v. Holy Family Hosp., 121 F.3d 537, 539 (9th Cir.1997). A genuine issue of material fact exists if "the evidenceis such that a reasonable jury could return a verdict for thenonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S.242, 248 (1986).III.[1] To survive a motion for summary judgment on his ADAclaim, Wellington must be able to show sufficient facts tomeet his burden of production of evidence on each element ofthe prima facie case. See Willis v. Pacific Maritime Ass'n, 162F.3d 561, 565 (9th Cir. 1998). Specifically, Wellington mustshow: (1) that he was disabled within the meaning of theADA; (2) that he was "qualified," meaning he was able toperform the essential functions of the job at issue, with orwithout a reasonable accommodation; and (3) that theemployer terminated him because of his disability. See id. Itis undisputed that Wellington was terminated because of hisphysical limitations. Therefore, the only questions are (1)whether he was "disabled" due to his physical limitations, and(2) whether he was "qualified."A. "Disability" Under the ADA[2] Wellington must first demonstrate that he is disabledwithin the meaning of the ADA. The ADA defines"disability" as including "a physical or mental impairmentthat substantially limits one or more of the major life activitiesof [an] individual." 42 U.S.C. S 12102(2)(A). Wellingtonargues that his physical impairment resulting from carpal tun-nel syndrome qualifies as a disability pursuant to the ADAbecause it substantially limits his ability to engage in themajor life activity of working.[3] To show a substantial limitation on his ability to work,Wellington must show that he is "significantly restricted inthe ability to perform either a class of jobs or a broad rangeof jobs in various classes as compared to the average personhaving comparable training, skills and abilities. " 29 C.F.R.S 1630.2(j)(3)(i). "The inability to perform a single, particularjob does not constitute a substantial limitation in the majorlife activity of working." Id.In Thompson, the plaintiff, a registered nurse, was perma-nently restricted "from lifting more than 25 pounds on a con-tinuous basis, more than 50 pounds twice a day, and morethan 100 pounds once a day." See 121 F.3d at 539. Due to therestrictions on her lifting, the plaintiff could not perform herjob of providing total patient care and was therefore termi-nated from her employment. Although we recognized that lift-ing was a "major life activity," we held that the plaintiff'slifting restrictions were not, in and of themselves,"substanti-ally limiting" within the meaning of the ADA. See id. at 539-40.As to the extent to which these lifting restrictions curtailedthe plaintiff's ability to engage in the "major life activity" ofworking, we held that the plaintiff had failed to establish thatthe limitation on her general ability to work was "substantial."See id. at 540. Thompson points to no evidence that the restric- tions on her ability to perform total patient care pre- clude her from engaging in an entire class of jobs. Nor does she offer the information relevant to this particularized determination. The only evidence in the record addressing Thompson's experience and opportunities is the affidavit of a vocational rehabili- tation counselor that was submitted by the hospital. After stating his belief that total patient care is not an appropriate assignment for an individual with a 25- pound exertional limitation, the counselor notes that Thompson would be qualified for a number of the positions available to registered nurses in the[local] labor market. Thompson has not countered this sug- gestion with evidence of a significant decline in her ability to obtain employment. Indeed, while no lon- ger performing total patient care, she currently is employed in the health care industry.Id. (citations omitted).[4] In the present case, the evidence indicates that Welling-ton's education is limited to a high school degree with sometrade school certification, and his work experience is limitedto manufacturing, construction, heavy maintenance andplumbing. No expert or other evidence has been presented tosuggest that there are jobs available in the labor market forwhich a person having "comparable training, skills andabilities" to Wellington would be qualified. To the contrary,the undisputed evidence from Wellington's doctor is thatWellington is permanently unable to perform work involving"metal fabrication, welding, . . . heavy activities, carpentry,. . . the use of a variety of tools to do maintenance and repairs,et cetera." Furthermore, Wellington's testimony establishesthat he had to quit a job performing even light plumbingbecause he "was in too much pain to even continue."3[5] These facts suggest that Wellington may be precludedfrom working in any capacity involving construction, mainte-nance or even light plumbing. Considering Wellington's"training, skills and abilities," there exists a question of factas to whether he is "significantly restricted in the ability toperform work in a class of jobs"--construction, maintenanceand plumbing--and whether he is thus "disabled " within themeaning of the ADA. See 42 U.S.C. S 12102(2); 29 C.F.R.S 1630.2(j).B. "Qualified" Under the ADA[6] If Wellington is able to demonstrate that he is"disabled" within the meaning of the ADA, he must nextshow that he is "qualified." See Willis , 162 F.3d at 565. A"qualified" individual is "an individual with a disability who,with or without reasonable accommodation, can perform theessential functions of the employment position that such indi-vidual holds or desires." 42 U.S.C. S 12111(8). The districtcourt held that Wellington failed to demonstrate that he was"qualified" to perform the essential functions of the mainte-nance position, and Wellington does not appeal that decision.Wellington contends, however, that placing him in a perma-nent position in the safety program would have been a reason-able accommodation.[7] A "reasonable accommodation " under the ADA mayinclude "job restructuring . . . reassignment to a vacant posi-tion . . . and other similar accommodations." 42 U.S.C.12111(9). A "reasonable accommodation" has not, however,been held to include creation of a new job. To the contrary,we have recently held that the ADA does not impose a dutyto create a new position to accommodate a disabled employee.See Willis v. Pacific Maritime Ass'n, 162 F.3d 561, 567 (9thCir. 1998) ("In order for reassignment to a vacant position tobe reasonable, an existing position must be vacant: there is noduty to create a new position for the disabled employee.").[8] While the School District did not have a duty to createa new position to accommodate Wellington's physical limita-tions, the record reveals a question of fact as to whether thesafety position had already been created prior to terminationof Wellington's employment. A job description for the posi-tion of "Safety Aide" was drafted, superintendent Lommoriwas authorized by the Board of Trustees to hire someone forthat position, and Lommori testified in his deposition that theBoard "did allow the position but it [was Lommori's]decision" whether or not to offer it to Wellington. In fact,when asked in his deposition whether a light duty safety aidejob was created, Lommori responded: "Position was created."Comments made in the closed Board meetings also suggestthat such a position may have been created. After Lommoriexplained to the Board the option of permanently placingWellington in a safety position, one Board member asked:"Are you creating a job to do this?" Lommori responded,"This is creating a job. One way or another we are creatinga job. But it's a job that we need to have done in this districtright now."In a subsequent Board meeting, Lommori reported: We talked about the position of a Safety person at the last meeting. Essentially the Board gave me the authorization to make that decision -- to create the job or not . . . . I decided it would be best for the entire district not to offer the position and have [Wellington] go to SIIS and get into a rehab/ retraining program.After his report, one member of the Board asked: The question I have on that is now are we going to go ahead and look for someone for that position or are we going to handle this? We literally made a position there, didn't we?Lommori acknowledged the importance of the proposedsafety position by affirmatively responding: Oh, I think we are eventually going to find a person for that position because it is an important position. It is not a program that's going to go away. We have to have a safety program and I think that we've done a lot of work and [Wellington] did a lot of good work. I told him that I was pleased with the work he did. I'm going to try to go for a much lesser paid position.[9] The transcripts of these Board meetings and Lommori'sdeposition raise an issue of fact as to whether the safety posi-tion may have already been created prior to Wellington's ter-mination. Although there is some evidence suggesting acontrary conclusion, when viewing the evidence in the lightmost favorable to Wellington, there is sufficient evidence thata reasonable jury could conclude that a permanent safety posi-tion was created prior to Wellington's termination. Moreover,if a permanent safety position was created, issues of fact existas to whether Wellington was "qualified" for the position andthus whether it would have been a reasonable accommodationto reassign Wellington to that position. See 42 U.S.C.12111(9).Finally, Wellington might establish at trial that although thesafety position was not actually created, the reason that theSchool District did not follow through on its initial decisionto do so was Wellington's disabled status and the fearedadverse reaction of his fellow employees. This too, if proven,could provide a basis for a reasonable jury's concluding thatthe School District failed to make a reasonable accommoda-tion.IV.Viewing the evidence in the light most favorable to Wel-lington, genuine issues of material fact exist concerning Wel-lington's ADA claim. First, considering Wellington's"training, skills and abilities," there exists a question of factas to whether he has a "physical . . . impairment that substan-tially limits" his ability to work, and thus, whether he is dis-abled within the meaning of the ADA. Second, the recordpresents a genuine issue of material fact as to whether a per-manent safety position had been created and, if such a posi-tion had been created, whether Wellington was "qualified" forthe position, and thus, whether it would have been a reason-able accommodation to reassign Wellington to that position.In sum, based on the record, a reasonable jury could deter-mine that Wellington was disabled and that the School Dis-trict failed to reasonably accommodate his disability solelybecause it did not want to provide a "cushy job " to someoneperceived by other employees as having "milked the system."REVERSED AND REMANDED. the end
___________________________FOOTNOTES 1 Honorable Phyllis A. Kravitch, Senior Circuit Judge for the EleventhCircuit United States Court of Appeals, sitting by designation.2 At one point, Lommori was apparently very close to offering Welling-ton the position, evidenced by the fact that a letter, dated July 14, 1994,informing SIIS of the decision to hire Wellington for the position wasdrafted. This letter was, however, never mailed. In his deposition, Lom-mori admitted that he was close to offering Wellington the position, butthen changed his mind. The safety position has apparently never beenfilled.3 After his employment with the School District was terminated, Wel-lington obtained employment in a light plumbing position. Wellingtonstated in his deposition that he eventually quit this position because he"was in too much pain to even continue."