Appeal from the United States District Courtfor the Northern District of CaliforniaJoan S. Brennan, Magistrate Judge, PresidingArgued and SubmittedDecember 10, 1998--San Francisco, CaliforniaFiled January 28, 1999Before: Betty B. Fletcher, Warren J. Ferguson andDavid R. Thompson, Circuit Judges.Opinion by Judge Thompson
_____________________________COUNSEL Claudia Center, The Employment Law Center, San Francisco,California, for the plaintiff-appellant.David F. Faustman, Faustman, Carlton, DiSante & Freuden-berger, San Francisco, California, for the defendants-appellees.Jodi B. Danis, Equal Employment Opportunity Commission,Washington, D.C., for the amicus curiae.
_____________________________OPINION THOMPSON, Circuit Judge:Vera L. Nunes ("Nunes") appeals the district court's sum-mary judgment in favor of Wal-Mart Stores ("Wal-Mart") inher action under the Americans with Disabilities Act, 42U.S.C. S 12101 et seq. ("ADA"). Nunes contends the districtcourt erred in concluding that she was not a "qualified indi-vidual with a disability" under the ADA. In addition, Nunesargues the district court erred in determining that she posed a"direct threat" to others because of her disability. We havejurisdiction pursuant to 28 U.S.C. S 1291, and we reverse.BACKGROUNDIn early 1994, Nunes became a regular sales associate forWal-Mart. Wal-Mart's benefits included short-term medicalleaves of absence for up to one year. For many years prior toher employment at Wal-Mart, Nunes suffered from a faintingdisorder that caused episodes during which she lost con-sciousness. These "syncopal episodes" varied in frequency,and in late 1995 were diagnosed as being stress-related.Nunes had the first syncopal episode while working forWal-Mart in March 1994. After Nunes suffered two episodesin April (one at work), she went out on medical leave until theend of July. Nunes returned to work and worked without inci-dent for six months, but then had two more syncopal episodesat work in February 1995. No injuries to Nunes or anyone elseoccurred because of the incidents at work, and Nunes wasable to continue working subject to a 15-pound lifting restric-tion. On March 3, 1995, however, Nunes fainted while walk-ing to the break room, breaking her glasses and cutting hereyebrow.With the encouragement of Wal-Mart, Nunes began anextended medical leave of absence on March 3, 1995, fordiagnosis and treatment of her condition. In applying for Cali-fornia temporary disability benefits ("SDI"), Nunes and herdoctor certified that Nunes was incapable of performing her"regular or customary work." Nunes's physician listed March7, 1995, as the day her disability commenced and May 1,1995, as an estimated date when she could return to work.After May 1, various doctors provided Wal-Mart with doc-umentary proof of Nunes's illness, indicating her continuinginability to return to work because she was still suffering fromfainting episodes. One doctor's certification stated that Nuneswould be unable to return to work until November 15, 1995.Another doctor certified that Nunes would be unable to workfrom August 1, 1995, until December 1, 1995.During October 1995, Nunes was hospitalized and learnedstress-reduction exercises to help control her disorder. Sometime before October 27, 1995, while Nunes was in the hospi-tal, a Wal-Mart personnel manager tried to phone her, butfound her phone line disconnected. The manager learned thatNunes was in the hospital, but did not try to contact her there.Contrary to Wal-Mart's policy, the personnel manager did notsend Nunes a certified letter inquiring about her status andgiving her three days to respond before final termination.Instead, the store manager terminated Nunes on October 27,1995.The manager later told Nunes she had been terminatedbecause of her failure to submit leave of absence forms andbecause Wal-Mart needed someone to fill her position duringthe holidays. Nunes had her last syncopal episode in Decem-ber 1995. She became a cashier at McDonald's beginning inApril 1996 and has remained in that position ever since with-out any fainting incidents.In her complaint, Nunes alleged twelve causes of action,including claims under the ADA, the Family and MedicalLeave Act, the California Family Rights Act, the CaliforniaFair Employment and Housing Act, as well as state tortclaims. The district court granted summary judgment in favorof Wal-Mart on all claims. In this appeal, however, Nuneslimits the issues to the district court's summary judgment onher ADA claim.DISCUSSIONA. Standard of ReviewWe review de novo a grant of summary judgment. SeeSummers v. A. Teichert & Son, Inc., 127 F.3d 1150, 1152 (9thCir. 1997). Viewing the evidence in the light most favorableto the nonmoving party, we must determine whether there isa genuine issue of material fact and whether the district courtcorrectly applied the relevant substantive law. See id.B. Qualified Individual with a Disability under the ADAThe district court determined that Nunes was not a quali-fied individual with a disability under the ADA. It did so onthe alternate grounds that (1) her statements in her applicationfor SDI benefits precluded a recovery on her ADA claim and(2) her doctors had certified in connection with her SDI appli-cation that Nunes could not perform the essential functions ofher job on the date she was terminated. We conclude the courterred on both grounds.[1] The ADA prohibits an employer from discriminating"against a qualified individual with a disability because of thedisability." 42 U.S.C. S 12112(a). Thus, to state a prima faciecase under the ADA, Nunes must show that (1) she is a dis-abled person within the meaning of the ADA; (2) she is aqualified individual, meaning she can perform the essentialfunctions of her job; and (3) Wal-Mart terminated her becauseof her disability. See Kennedy v. Applause, 90 F.3d 1477,1481 (9th Cir. 1996).[2] The ADA further defines the second prong of the primafacie case, "qualified individual with a disability," as an"individual with a disability who, with or without reasonableaccommodation, can perform the essential functions of theemployment position that such individual holds or desires."42 U.S.C. S 12111(8); see also 29 C.F.R. S 1630.2(m).[3] Relying on Kennedy, the district court held that "Nunesmust be precluded from claiming that she was `qualified'under the ADA because she made inconsistent remarks whenshe applied for and received state disability insurancebenefits." Kennedy does not dictate this conclusion. Kennedyapplied traditional summary judgment principles in consider-ing the statements the plaintiff made seeking state disabilitybenefits. Kennedy, 90 F.3d at 1477. Indeed, we have joinedthe majority of circuits in holding that "neither application fornor receipt of disability benefits automatically bars a claimantfrom establishing that she is a qualified person with a disabil-ity under the ADA." Johnson v. Oregon, 141 F.3d 1361, 1367(9th Cir. 1998) (emphasis in original). Thus, the district courterred in determining that, because Nunes applied for SDI ben-efits, she was precluded from claiming she was a qualifiedindividual under the ADA.[4] The district court also erred in determining that Nuneswas totally disabled on the date of her termination. It is undis-puted that, during the period of Nunes's medical leave leadingup to her termination, her doctors continued to state that shewas incapacitated and unable to return to work. Relying onthese certifications during this period, the district court con-cluded that Nunes was totally disabled and therefore unquali-fied under the ADA.[5] By focusing on Nunes's disability during the period ofher medical leave, however, the district court misapplied theADA's "qualified individual" requirement. The ADA requiresthat Nunes be able to perform the essential functions of herjob "with or without reasonable accommodation. " 42 U.S.C.S 12111(8). Unpaid medical leave may be a reasonableaccommodation under the ADA. See 29 C.F.R. Part 1630,Appendix (discussing S 1630.2(O)). Even an extended medi-cal leave, or an extension of an existing leave period, may bea reasonable accommodation if it does not pose an unduehardship on the employer. See 42 U.S.C.S 12111(9), (10);Norris v. Allied-Sysco Food Servs., Inc., 948 F. Supp. 1418,1438 (N.D. Cal. 1996). If Nunes's medical leave was a rea-sonable accommodation, then her inability to work during theleave period would not automatically render her unqualified.[6] Determining whether a proposed accommodation (med-ical leave in this case) is reasonable, including whether itimposes an undue hardship on the employer, requires a fact-specific, individualized inquiry. See Hall v. U.S. Postal Serv.,857 F.2d 1073, 1080 (6th Cir. 1988) (reversing grant of sum-mary judgment in a Rehabilitation Act claim). In the summaryjudgment context, a court should weigh the risks and alterna-tives, including possible hardships on the employer, to deter-mine whether a genuine issue of material fact exists as to thereasonableness of the accommodation. See, e.g., Barnett v.U.S. Air, Inc., 157 F.3d 744, 752 (9th Cir. 1998); Willis v.Conopco, Inc., 108 F.3d 282, 285 (11th Cir. 1997) (bothaffirming summary judgment because the plaintiff failed toraise material issue that the requested accommodation wasreasonable).The record indicates that Nunes was a good employee whohad received "above average" performance ratings. She wentout on medical leave with the blessing of Wal-Mart, whosestated benefits policy included unpaid medical leave of up toone year. Throughout the leave period, Nunes submitted doc-tors' certifications to Wal-Mart indicating that she would beunable to work until November or December 1995. When shewas terminated in October 1995, she had been on medicalleave for seven months and was learning stress reductiontechniques to control her symptoms.[7] Nunes has raised a genuine issue of material fact as towhether her medical leave, projected to extend to Novemberor December 1995, was a reasonable accommodation. Anissue of fact also exists as to whether the accommodationsought would impose an undue hardship on Wal-Mart.Weighing against Wal-Mart on these issues are its stated ben-efits policy that eligible employees could take up to one yearof unpaid medical leave, and its regular practice as a largeretailer of hiring temporary help during the holiday season.We conclude that genuine issues of material fact exist per-taining to Nunes's qualified status under the ADA.C. Direct Threat Defense[8] Even though Nunes raised genuine issues of materialfact as to her qualified status, summary judgment would stillbe appropriate under the ADA if Nunes posed "a direct threatto the health or safety of other individuals in the workplace."42 U.S.C. S 12113(b). Because this is an affirmative defense,Wal-Mart bears the burden of proving that Nunes is a directthreat. See Rizzo v. Children's World Learning Ctrs., Inc., 84F.3d 758, 764 (5th Cir. 1996); Equal Employment Opportu-nity Comm'n v. Union Pacific Railroad, 6 F. Supp. 2d 1135,1138 (D. Idaho 1998).[9] The ADA defines "direct threat " as "a significant riskto the health or safety of others that cannot be eliminated byreasonable accommodation." 42 U.S.C. S 12111(3). In regula-tions interpreting the "direct threat" issue, the Equal Employ-ment Opportunity Commission ("EEOC") has stated thatdirect threat "means a significant risk of substantial harm tothe health or safety of the individual or others that cannot beeliminated or reduced by reasonable accommodation. " 29C.F.R. S 1630.2(r).1To protect disabled individuals from discrimination basedon prejudice, stereotypes, or unfounded fear, the SupremeCourt has required an individualized direct threat inquiry thatrelies on the best current medical or other objective evidence.See Bragdon v. Abbott, 118 S. Ct. 2196, 2210 (1998); Arline,
480 U.S. at 287
; 29 C.F.R. S 1630.2(r). Specific factors to beconsidered include (1) the duration of risk, (2) the nature andseverity of the potential harm, (3) the likelihood that thepotential harm will occur, and (4) the imminence of the poten-tial harm. See Arline,
480 U.S. at 287
; 29 C.F.R. S 1630.2(r).[10] In evaluating a direct threat defense, a court shouldfirst consider whether the employer has demonstrated that theemployee cannot perform the job without a significant risk ofharm. See 29 C.F.R. S 1630.2(r); Mantolete v. Bolger, 767F.2d 1416, 1422 (9th Cir. 1985) (reversing district court'sdecision that a Rehabilitation Act claimant with epilepsywould pose a direct threat if she were employed as a lettersorting operator).2 If the court determines that such a risk isposed, then it must ask whether the employer can make a rea-sonable accommodation, without undue hardship to theemployer, so that the employee can perform her job withoutsuch risk. See Mantolete, 767 F.2d at 1423. Such an analysisnecessarily requires the employer to gather "substantialinformation" about the employee's work history and medicalstatus, and disallows reliance on subjective evaluations by theemployer. Id. at 1422; see also Bragdon, 118 S. Ct. at 2210.The district court determined that Nunes posed a directthreat to the customers of Wal-Mart. The court based this con-clusion on three factors: (1) Nunes's prior syncopal episodesat work, including one where she required stitches to her eye-brow; (2) the manager's "legitimate fear" that Nunes was adirect threat to others; and (3) Nunes's doctor's depositiontestimony taken two years after the termination decision thatit was "possible" that Nunes could hurt herself or others if shesuffered an attack while carrying something heavy over herhead.[11] Wal-Mart did not present any evidence about Nunes'smedical condition at the time she was terminated. The deposi-tion testimony of Nunes's doctor, taken two years after thetermination decision was made, obviously was not availableto Wal-Mart at the time Nunes was terminated. Moreover, thistestimony does not support the conclusion that Nunes poseda significant risk to others. The doctor testified that any riskof harm posed by Nunes was "extremely unlikely. " Defensecounsel then asked the doctor if Nunes would pose a risk toothers if she carried something heavy over her head, fainted,and dropped the item onto someone else. The doctor answeredthat such a scenario was "possible" but "very unlikely." Suchtestimony does not establish significant risk as a matter oflaw. At most, it raises a genuine issue of material fact as toNunes's risk of harm to others.[12] Moreover, the record contains no evidence that Wal-Mart considered any at-work accommodations to reduce therisks it feared. For example, even though Wal-Mart fearedthat Nunes might drop a heavy item lifted over her head, thereis no evidence that Wal-Mart considered an accommodationto avoid such lifting. Given Nunes's job duties as a cashier,such an accommodation seems feasible. See Mantolete, 767F.2d at 1423 (court should consider whether employer couldhave made reasonable accommodation that would have elimi-nated or reduced the direct threat of harm); see also 42 U.S.C.S 12111(3).CONCLUSION[13] Nunes has raised genuine issues of material fact con-cerning whether the medical leave she sought was a reason-able accommodation that would have permitted her toperform the duties of her job without imposing an undue hard-ship on her employer, and without a direct threat of injury toothers. Summary judgment dismissing Nunes's ADA claimwas therefore inappropriate. That judgment is reversed, andthis case is remanded to the district court for further proceed-ings.REVERSED AND REMANDED. the end
___________________________FOOTNOTES 1 The ADA mentions only threats to others, whereas the EEOC regula-tions expand the term "direct threat" to include threats to the disabled per-son herself. We have not yet ruled on whether the direct threat defenseincludes threats to one's self and decline to do so in the present casebecause the issue was not addressed in the district court and has not beenproperly presented in this appeal. We note, however, that two courts inother circuits have considered this issue and have reached different results.Compare Kohnke v. Delta Airlines, 932 F. Supp. 1110, 1111 (N.D. Ill.1996) (holding that expansion of the ADA to encompass threats to self is"untenable" because the ADA mentions only threats to others), withMoses v. American Nonwovens, Inc., 97 F.3d 446, 447 (11th Cir. 1996)(holding that direct threat under the ADA includes threats to self).2 Interpretations of the ADA are guided by Rehabilitation Act precedent.See Yin v. California, 95 F.3d 864, 867 (9th Cir. 1996), cert. denied, 117S. Ct. 955 (1997).