MCALINDIN v COUNTY OF SAN DIEGO, 9756787o
U.S. 9th Circuit Court of Appeals
MCALINDIN v COUNTY OF SAN DIEGO
9756787o
RICHARD MCALINDIN,Plaintiff-Appellant,No. 97-56787v.D.C. No.COUNTY OF SAN DIEGO;CV-94-01453-JTM/RBBRUDOLPH TAMAYO; EDWARDBAKER; GABRIEL RODRIGUEZ; ORDER AND AMENDEDDOES, one through 50, OPINIONinclusive,Defendants-Appellees.
Appeal from the United States District Courtfor the Southern District of CaliforniaJeffrey T. Miller, District Judge, PresidingArgued and SubmittedJune 10, 1999--Pasadena, CaliforniaFiled September 16, 1999Amended January 18, 2000Before: Dorothy W. Nelson, Stephen Reinhardt, andStephen S. Trott, Circuit Judges.Opinion by Judge D.W. Nelson; Partial Concurrence andPartial Dissent by Judge Trott
_____________________________COUNSEL Dennis M. Grady, Grady & Associates, San Diego, Califor-nia, for the plaintiff-appellant.Lloyd M. Harmon and William H. Songer, Office of theCounty Counsel, San Diego, California, for the defendants-appellees.
_____________________________ORDER The opinion filed September 16, 1999 is hereby amendedas follows:At Slip Op. 11836, headnote [13], lines 11-16, delete"Thus, the sleep disorder and sexual dysfunction merely helpto establish that the impairment (panic disorder after treat-ment) affects a major life activity; they are not relevant to thereasonable accommodation discussion, however, whichfocuses on the post-treatment panic disorder's manifestationsin the workplace and the employer's response to them".At Slip Op. 11836, headnote [13], lines 21-24, replace "Thetwo inquiries become related only to the extent that the dis-ability may impact the employer's ability to craft a reasonableaccommodation for the employee" with "The two inquiries--namely, whether McAlindin is disabled and what constitutesreasonable accommodation for that disability--only intersectto the extent that McAlindin's disability manifests itself in theworkplace".Judge D.W. Nelson voted to deny the petition for rehearingand recommended rejection of the suggestion for rehearing enbanc. Judge Reinhardt voted to deny the petition for rehearingand to reject the suggestion for rehearing en banc. Judge Trottvoted to grant the petition for rehearing and to grant the sug-gestion for rehearing en banc. The full court was advised ofthe suggestion for rehearing en banc and no active judgerequested a vote on whether to rehear the matter en banc. Fed.R. App. P. 35.The petition for rehearing is denied and the suggestion forrehearing en banc is rejected.
_____________________________OPINION D.W. NELSON, Circuit Judge:OVERVIEWRichard McAlindin, who has been diagnosed as sufferingfrom anxiety disorders, panic disorders, and somatoformdisorders,1 appeals the district court's grant of summary judg-ment on his Americans with Disabilities Act ("ADA") claim.McAlindin also appeals the district court's grant of summaryjudgment on his claim that the County of San Diego ("theCounty") retaliated against him for asserting his rights underthe ADA. We hold that sleeping, engaging in sexual relations,and interacting with others are "major life activities" underthe ADA, and that McAlindin has raised a triable issue as towhether he is substantially limited in a major life activity. Wereverse the grant of summary judgment on the ADA claimand remand for further proceedings. However, we affirm thedistrict court's grant of summary judgment on the retaliationclaim.FACTUAL AND PROCEDURAL BACKGROUND2 McAlindin began working for the County's Housing andCommunity Development Department as a systems analyst inSeptember 1983. Several doctors have concluded thatMcAlindin suffers from anxiety disorders, panic disorders,and somatoform disorders. He has received treatment, includ-ing psychotherapy and a number of medications, such asXanax, Buspar, and Paxil. McAlindin explained his conditionin his declaration, which stated the following: I have been diagnosed with anxiety disorders, including panic disorders and somatoform disorders . . . . Despite the medications [I take], I continue to experience symptoms so severe that at least once a month, I am completely incapacitated, and forced to lie down. Symptoms include dizziness, lightheaded- ness, narrowed vision, and strange sensations in my head, and my arms and legs. As a result of the medi- cations, I experience impotence. In addition, since 1989, I have frequently been unable to sleep and have had severe insomnia. The medication has helped with this, but I still experience problems with sleeping. Without the medication, my symptoms return. If I do not take my medication, I am unable to function. The frequency and severity of the symp- toms increases to the point where I cannot take care of myself. My condition interferes with my ability to see and hear and speak. The sense of anxiety, with- out medication, is so overwhelming, that I am unable to do anything. I am essentially "paralyzed."McAlindin received a "provisional promotion" in early1989, which brought new, very stressful duties. In June 1989,McAlindin complained about a vendor's misconduct, yet hissupervisors disregarded his complaints. According toMcAlindin's supervisor, McAlindin became agitated andstarted shouting in an accusatory manner during the meeting.Soon thereafter, McAlindin sought and was granted leave dueto "work stress." He obtained workers compensation for thestress.In May 1992, McAlindin again took leave for stress-relateddisability. He submitted medical documents from his physi-cian requesting that his leave be extended, and the Countycomplied. When it became clear that McAlindin's leavewould extend beyond a year, the County informed his attor-ney that his status would no longer be designated as "leavewithout pay with right to return." Pursuant to the County'sregulations, individuals may not remain on disability leave"with right to return" for more than a year.During McAlindin's leave, he repeatedly requested throughhis attorney a transfer to a different job as a "reasonableaccommodation" required by the ADA. McAlindin explainedthat several of his doctors had advised that he not return to hisprevious work setting because the negative associations therewould impede his recovery. The County responded by offer-ing to place his name on the transfer list but made it clear thatit would not make any special efforts to ensure a transfer. Inaddition, the County said that it preferred to explore ways ofaccommodating McAlindin in his present position. Based onhis familiarity with the County, McAlindin states that "thereare a number of positions for systems analysts [in otherdepartments] and that vacancies occur with some frequency,because of transfers, and attrition." The County does not dis-pute this. The County maintains an unranked transfer list,which departments can utilize if they wish when they havevacancies. The County's policy is to require employees toarrange their own transfers.In July 1993, the County required McAlindin to undergo anexamination by a County-retained psychiatrist to evaluate hisability to return to work. Dr. Reiss confirmed the diagnosis ofanxiety and panic disorders. Dr. Reiss also found thatMcAlindin required more aggressive medications and psycho-therapy in order to return to his position. Dr. Reiss concludedthat, with the proper treatment, McAlindin could return to hisjob in three to six weeks. After receiving Dr. Reiss' evalua-tion, the County told McAlindin that he had to obtain therequired treatment and return to his job within two months, orelse he would lose any likelihood of working for the Countyagain.When he returned from his second disability leave,McAlindin felt that the way he was treated by his supervisorschanged drastically. McAlindin was given a written warningby his supervisor for sleeping at work, although he informedhis supervisor that his doctor had prescribed medications thatmade him drowsy. McAlindin also complained about notreceiving adequate training to help him adapt to the changingtechnologies in the department when he returned from hisleave of a year and a half. McAlindin alleged that the othersystems analyst in his department, Floyd Garrett, had beensent to off-site training, which McAlindin had been denied.Garrett countered that he had not received off-site trainingand had been trained exclusively through an on-site computertutorial and on-the-job-training. County officials testified thatthe County relies almost exclusively on the computer tutorialfor training.McAlindin sued the County and his supervisors for disabil-ity discrimination in violation of the ADA, 42 U.S.C. S 12101et seq., and the California Fair Employment and Housing Act("FEHA"), Cal. Gov. Code S 12940 et seq., and for age dis-crimination and retaliation under FEHA. On December 5,1995, the district court granted in part and denied in part theCounty's motion for summary judgment. The court grantedsummary judgment on McAlindin's disability claim, holdingthat he lacked a "disability" within the meaning of the ADA.The court also dismissed McAlindin's state law claims for ageand disability discrimination, from which McAlindin does notappeal. The district court expressed doubt that most ofMcAlindin's retaliation allegations could survive summaryjudgment. Nonetheless, because McAlindin asked to amendhis complaint to add new factual allegations of retaliationregarding a recent suspension, the district court denied sum-mary judgment on the retaliation claim.On September 12, 1997, the district court granted summaryjudgment on most of the alleged instances of retaliation dis-cussed in the 1995 order: (a) the denial of a transfer; (b) therevocation of McAlindin's "right to return;" (c) the County'srequirement that McAlindin return to his former job; (d) thefailure to provide necessary training; (e) the written warningfor sleeping; and (f) general harassment/failure to accommo-date.Regarding McAlindin's remaining retaliation allegations,however, the district court denied summary judgment. Thecourt found that there were factual disputes regarding a sus-pension and some negative evaluations that McAlindinreceived. Although McAlindin could have gone to trial onthese issues, he chose to dismiss this part of his retaliationclaim. On September 29, 1997, the district court entered finaljudgment, permitting McAlindin to appeal the grant of sum-mary judgment on his disability and retaliation claims.McAlindin timely appealed. At the time of oral argument,McAlindin remained employed by the County in his same job.STANDARD OF REVIEWWe review a grant of summary judgment de novo. SeeBradley v. Harcourt Brace and Co., 104 F.3d 267, 269 (9thCir. 1996) (citing Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9thCir. 1996)). "We must determine, viewing the evidence in thelight most favorable to the non-moving party, whether thereare any genuine issues of material fact and whether the districtcourt correctly applied the relevant substantive law." Id.DISCUSSIONI. DISABILITY.A. Major life activities[1] The ADA, which prohibits discrimination against a"qualified individual with a disability," 42 U.S.C. S 12112(a),defines "disability" in part as "a physical or mental impair-ment that substantially limits one or more of the major lifeactivities of such individual." Id. S 12102(2)(A).3 In enactingthe ADA, Congress chose to protect individuals who havemental impairments as well as those with physical impair-ments. See Criado v. IBM Corp., 145 F.3d 437, 443 (1st Cir.1998); Holihan v. Lucky Stores, Inc., 87 F.3d 362, 365 n.3(9th Cir. 1996); 29 C.F.R. S 1630.2(h)(2) (listing "emotionalor mental illness" as an impairment). To be disabled underthis definition, therefore, McAlindin must show an impair-ment that affects one or more major life activities. See 42U.S.C. S 12112(a) (West Supp. 1999).Although the district court accepted McAlindin's claim thathis anxiety disorder constituted an impairment, it determinedthat McAlindin was not substantially limited in any major lifeactivities.4 The district court summarily dismissed most ofMcAlindin's asserted major life activities and focused on themajor life activity of working.5 We thus analyze major lifeactivities here in order to establish whether in addition tobeing impaired, McAlindin raises a genuine issue of materialfact as to whether he is disabled for the purposes of the ADA.[2] According to the EEOC, major life activities include"functions such as caring for oneself, performing manualtasks, walking, seeing, hearing, speaking, breathing, learning,and working." Id. S 1630.2(i). 6 "[T]he first question iswhether an individual is substantially limited in a major lifeactivity other than working (e.g., sleeping, concentrating, car-ing for oneself)." Equal Employment Opportunity Commis-sion, EEOC Enforcement Guidance on the Americans withDisabilities Act and Psychiatric Disabilities 3 (March 25,1997) [hereinafter EEOC on Psychiatric Disabilities]. Weconclude that the other activities--specifically, sleeping,engaging in sexual relations, and interacting with others--asserted by McAlindin are "major life activities " within themeaning of the ADA, and thus we need not address the dis-trict court's conclusion that he was not substantially limitedin his ability to work. See Taylor v. Phoenixville Sch. Dist.,174 F.3d 142, 152 (3d Cir. 1999). Whether McAlindin facedsubstantial limitations in his ability to work is irrelevant towhether his limitations in other major life activities qualifyhim as disabled for ADA purposes.The ADA does not define "major life activity." SeeBragdon v. Abbott, 118 S. Ct. 2196, 2205 (1998). However,"the plain meaning of the word major denotes comparativeimportance and suggest[s] that the touchstone for determiningan activity's inclusion under the statutory rubric is itssignificance." Id. (internal quotation marks omitted). TheBragdon Court noted that the term "major life activity" isvery broad and includes activities that are private in character.See id. (rejecting attempt to confine major life activities to"those with a public, economic, or daily aspect"). A major lifeactivity also must be "a basic activity that the average personin the general population can perform with little or nodifficulty." Pack v. Kmart Corp., 166 F.3d 1300, 1305 (10thCir. 1999). All of the major life activities that are relevanthere -- engaging in sexual relations, sleeping, and interactingwith others -- meet this requirement for the purposes of sur-viving disposition on summary judgment. The district courtgave no reason why these activities are not significant in thelife of the average person, like walking, speaking, and learn-ing.1. Sexual RelationsIn Bragdon, which was decided after the district courtgranted summary judgment, the Supreme Court stronglyimplied that engaging in sexual relations, like reproduction, isa major life activity. See 118 S. Ct. at 2205 (holding that"[r]eproduction falls well within the phrase`major life activ-ity' because "[r]eproduction and the sexual dynamics sur-rounding it are central to the life process itself"). Other courtshave reached the same conclusion. See, e.g., Anderson v. GusMayor Boston Store, 924 F. Supp. 763, 775 n.24 (E.D. Tex.1996) (AIDS impairs the major life activity of "engag[ing] inintimate sexual relationships"); Doe v. District of Columbia,796 F. Supp. 559, 568 (D. D.C. 1992) ("sexual contact" is amajor life activity under the Rehabilitation Act, the ADA'sprecursor).[3] We conclude that engaging in sexual relations, just likeprocreation, is a major life activity. The number of peoplewho engage in sexual relations is plainly larger than the num-ber who choose to have children. Moreover, according to thereasoning employed by the Fifth Circuit with respect to work-ing as a major life activity, sexuality is important in how "wedefine ourselves and how we are perceived by others " and isa fundamental part of how we bond in intimate relationships.EEOC v. R.J. Gallagher Co., 1999 WL 499571, at *7 (5thCir. July 15, 1999).72. Sleeping[4] Common sense suggests that sleeping is also a majoractivity in the lives of most people. A person who gets therecommended eight hours of sleep a day spends one-third ofeach 24-hour day sleeping. Moreover, sleeping is indispens-able to the maintenance of personal health. Therefore, we jointhe Second and Tenth Circuits in holding that sleeping is amajor life activity. See Pack, 166 F.3d at 1305; Colwell v.Suffolk County Police Dept., 158 F.3d 635, 643 (2d Cir.1998); see also Criado, 145 F.3d at 442 (suggesting that sleepis a major life activity).3. Interacting with Others[5] The record indicates that McAlindin may be limited ina third major life activity, interacting with others. Becauseinteracting with others is an essential, regular function, likewalking and breathing, it easily falls within the definition of"major life activity." See Criado, 145 F.3d at 442 (plaintiff'smental impairment "substantially limited her ability to work,sleep, and relate to others"); Sherback v. Wright AutomotiveGroup, 987 F. Supp. 433, 438 (W.D. Pa. 1997); EEOC onPsychiatric Disabilities at 3. A court in another circuit, how-ever, suggested that the "ability to get along with others" wastoo vague to be a major life activity, yet assumed that it wasa major life activity for the purposes of its decision. Soileauv. Guilford of Maine, Inc., 105 F.3d 12, 15 (1st Cir. 1997).8We see nothing in the statutory text that makes vaguenessthe test for determining what is a major life activity. We donot think that any vagueness in the term rises to the level ofmaking it unworkable as a major life activity. In any event,interacting with others is no more vague than "caring foroneself," which has been widely recognized as a major lifeactivity. See, e.g., Bragdon, 118 S. Ct. at 2205 (citing 45C.F.R. S 84.3(j)(2)(ii)); Cehrs v. Northeast Ohio Alzheimer'sResearch Ctr., 155 F.3d 775, 781 (6th Cir. 1998); see alsoDutcher v. Ingalls Shipbuilding, 53 F.3d 723, 726 (5th Cir.1995) (defining caring for oneself as including everythingfrom driving and grooming to feeding oneself and cleaningone's home).[6] Recognizing interacting with others as a major lifeactivity of course does not mean that any cantankerous personwill be deemed substantially limited in a major life activity.Mere trouble getting along with coworkers is not sufficient toshow a substantial limitation. See EEOC on PsychiatricDisabilities at 5. Here, there are clinical findings indicatingthat one of the effects of McAlindin's mental illness is a pat-tern of withdrawal from public places and family members.[7] In addition, the limitation must be severe or, in otherwords, substantial when compared to the ability of "the aver-age person in the general population." 29 C.F.R.S 1630.2(j)(1)(i); see also id. S 1630.2(j)(2)(i) (courts mustconsider the "severity" of the impairment). We hold that aplaintiff must show that his "relations with others were char-acterized on a regular basis by severe problems, for example,consistently high levels of hostility, social withdrawal, or fail-ure to communicate when necessary." EEOC on PsychiatricDisabilities at 5.4. McAlindin's Evidence of Impairment[8] The medical evidence in the record demonstrates a gen-uine issue of material fact as to whether McAlindin is sub-stantially limited in these three activities. First, McAlindinstated in his declaration that he is impotent as a result of themedications he must take. There appears to be no other recordevidence regarding his ability to engage in sexual relations.McAlindin's statement is sufficient to raise a genuine issue ofmaterial fact.[9] Second, McAlindin stated in his declaration that he hadexperienced great difficulty sleeping at night. In addition, ashis doctor explained in a letter to his supervisor, McAlindin'snumerous medications disrupted his normal sleep patterns andcaused him to be drowsy at work. Although the record indi-cates that the sleep medication has helped McAlindin's abilityto rest at night somewhat, his declaration states that his diffi-culty sleeping has persisted to some extent. This evidenceraises a genuine issue of material fact regarding McAlindin'ssleeping.Third, several of the doctors who evaluated McAlindindocumented his difficulty interacting with others. A review ofthe various medical evaluations indicates that, following hispanic attack in 1992, McAlindin became increasingly with-drawn and his ability to deal with people and stress was seri-ously diminished. For instance, Dr. Sandweiss concluded thatMcAlindin "is anxious all of the time . .. . He has a fear reac-tion and feels that he has to constrict outside activities andstay away from crowds, shopping centers and any disagree-ment with his wife. He's around the house most of the time,at least 20 hours per day . . . ." (emphasis in original). Dr.Reiss likewise noted that McAlindin was barely functional,"avoid[ing] activities, for fear that they will make him feelmore anxious" and stated that anxiety had a paralyzing effecton him. Consequently, "[McAlindin's] social activities areconfined to his family. He is not involved in any groups orpolitical or religious affiliations."[10] These evaluations suggest that McAlindin suffers froma total inability to communicate at times, in addition to a moresubtle impairment in engaging in meaningful discussion. Hisalleged "fear reaction" and "communicative paralysis" aresufficiently severe to raise a genuine issue of material factabout his ability to interact with others. Therefore, summaryjudgment would be inappropriate on this issue.Finally, we note that an intervening Supreme Court deci-sion alters the standard by which we view McAlindin's claim.In Sutton, the Supreme Court held that "the determination ofwhether an individual is disabled should be made with refer-ence to measures . . . that mitigate the individual'simpairment." 119 S. Ct. at 2143. The petitioners in Suttonclaimed that they were disabled because of poor eyesight.With eyeglasses, their corrected vision was "20/20 or better."Id. (internal quotation marks omitted). As a result, theSupreme Court affirmed the dismissal of their complaint forfailure to state an ADA claim. See id.The Supreme Court recognized, however, that in somecases the use of medication may not eradicate the effects ofillness, and a disability may remain either due to symptomsof the condition itself which persist despite the effects of med-ication, or as a result of the medication's side-effects. SeeSutton, 119 S. Ct. at 2149. In his declaration, McAlindinstated that he was describing how his condition affected him"[d]espite the medications." The record reflects the existenceof a genuine issue of material fact as to whether even withmedication and other treatment, McAlindin's mental impair-ment substantially limits his major life activities discussedabove.9 Thus, while the ultimate disability determination inthis case may be more complex than in cases not involvingmitigating treatment, the facts alleged by McAlindin, if true,bring his case within the category described in Sutton.B. Reasonable AccommodationHaving established a genuine issue of material fact withrespect to the existence of a disability, we turn to the issue ofreasonable accommodation. The ADA definition of discrimi-nation includes "not making reasonable accommodations tothe known physical and mental limitations of an otherwisequalified individual with a disability . . . unless such coveredentity can demonstrate that the accommodation would imposean undue hardship on the operation of the business of suchcovered entity." 42 U.S.C. S 12112(b)(5)(A). McAlindinalleges that the County denied him a "reasonableaccommodation" in violation of the ADA when it failed totransfer him to another job, failed to give him necessary train-ing, and disciplined him for sleeping that was caused by hismedications.Although the district court did not address whetherMcAlindin's requested accommodations were "reasonable,"the County urges us to affirm on the ground that McAlindin'srequested accommodations were unreasonable. See UnitedStates v. Lewis County, 175 F.3d 671, 679 (9th Cir. 1999)(citation omitted) (panel may affirm on any ground supportedby the record). In its brief, the County repeatedly asserts thatthe fact that it treated McAlindin like all other employeesmeans that it complied with the ADA.[11] However, the County misapprehends the ADA'srequirement of reasonable accommodation. The issue is notwhether McAlindin received the same treatment as everyoneelse did, but whether the employer took reasonable steps toaccommodate his limitations in ways that would not imposeundue hardship on the County. See 42 U.S.C.S 12112(b)(5)(A) (West Supp. 1999). Here, the County doesnot present evidence that an undue hardship would result fromtransferring McAlindin, finding a way of accommodating hisdrowsiness due to the medication, or providing him with addi-tional training outside of the office environment. Given thisomission, we cannot conclude that those activities would haveimposed an undue burden on the County. Indeed, the evidencesuggests the contrary.[12] The essence of the concept of reasonable accommoda-tion is that, in certain instances, employers must make specialadjustments to their policies for individuals with disabilities.See Shapiro v. Cadman Towers, Inc., 51 F.3d 328, 334-35 (2dCir. 1995) (rejecting argument that reasonable accommoda-tion "requires only equal treatment"). The ADA places a"duty to accommodate" on employers in order to remove bar-riers that could impede the ability of qualified individualswith disabilities to perform their jobs. Criado , 145 F.3d at445. Moreover, this is a " `continuing' " duty that is " `notexhausted by one effort'." Id. (quoting Ralph v. LucentTechs., Inc., 135 F.3d 166, 172 (1st Cir. 1998)).[13] In addition, we note that once McAlindin is viewed asdisabled, the major life activities affected by the impairmentare relevant only to the extent that they affect the type ofaccommodation that may be necessary and whether theemployer has provided a reasonable accommodation. Theexistence of a genuine issue of material fact regarding disabil-ity and of one regarding reasonable accommodation requireseparate inquiries. In the reasonable accommodation analysis,we focus on the impairment as relevant to the workplace andthus on whether the employer is making reasonable accom-modations. Cf. Bragdon v. Abbott, 118 S. Ct. 2196, 2204-07(1998) (discussing the ability to reproduce as the major lifeactivity at issue with respect to HIV even though the discrimi-nation involved refusal to provide medical care that was in noway connected to reproduction). The two inquiries--namely,whether McAlindin is disabled and what constitutes reason-able accommodation for that disability--only intersect to theextent that McAlindin's disability manifests itself in the work-place.[14] The fact that the County generally requires employeesto arrange their own transfers or disciplines all employeeswho sleep at work thus does not end the inquiry. Instead, theissue is whether a particular accommodation would be bur-densome to the employer. According to the statutory lan-guage, the presumption is that the accommodation is required"unless [the employer] can demonstrate that the accommoda-tion would impose an undue hardship." 42 U.S.C.S 12112(b)(5)(A) (emphasis added).[15] Consequently, we cannot affirm on the ground thatMcAlindin's requested accommodations are unreasonablebecause the County has presented no evidence indicating thatarranging a transfer, for example, would impose an "unduehardship." The ADA specifically states that " `reasonableaccommodation' may include . . . job restructuring, part-timeor modified work schedules, [and] reassignment to a vacantposition." Id. S 12111(9)(B).This conclusion is reinforced by evidence suggesting thatMcAlindin's request was not unduly burdensome. McAlindinasserts that "vacancies occur with some frequency, because oftransfers, and attrition." The County has not disputed thisclaim. It has not alleged an absence of available vacant posi-tions that McAlindin can perform. Nor has it explained whereMcAlindin is on the transfer list or why, years after hebrought suit, McAlindin has not been offered a transfer. Thereis no evidence that deviating from its transfer policy wouldcreate an "undue hardship" for the County.[16] On the contrary, it appears that transferring McAlindindue to his anxiety disorder would not unduly disrupt otheremployees' expectations because the County's transfer list isunranked and transfers are distributed in an ad hoc manner atthe discretion of the hiring department. Cf. Shapiro, 51 F.3dat 336 (noting that "[t]he extent to which a`reasonableaccommodation' for a handicapped individual can burden ortake away rights or privileges enjoyed by the non-handicapped persons is an important question of firstimpression"). Finally, whether a particular accommodation isreasonable often "turns on the facts of the case." Criado, 145F.3d at 443. This is certainly not a case in which the factsclearly demonstrate an undue burden, thereby making sum-mary judgment appropriate. Given the lack of evidenceoffered by the County and the relatively unburdensome natureof the requested accommodation, we find that McAlindinraised a triable issue of fact. We thus reject the County's argu-ment that we should affirm on this ground.10II. RETALIATION.[17] In order to establish a prima facie case on his FEHAretaliation claim, McAlindin must demonstrate that (1) "heengaged in a protected activity," (2) "his employer subjectedhim to adverse employment action," and (3) "there is a causallink between the protected activity and the employer'saction." Strother v. Southern Cal. Permanente Med. Group,79 F.3d 859, 868 (9th Cir. 1996) (quoting Flait v. N. Ameri-can Watch Corp., 3 Cal. App. 4th 467, 476 (Ct. App. 1992)).Next, the County is obligated to provide a legitimate, nondis-criminatory reason for its actions. See id. McAlindin thenmust respond with "specific, substantial evidence of pretext."Bradley, 104 F.3d 267 at 270 (internal quotation marks omit-ted). We affirm the district court's grant of summary judg-ment on the retaliation claim because McAlindin failed toestablish a prima facie case.The allegedly retaliatory conduct asserted by McAlindinand considered by the district court in its 1995 order11 was thefollowing: (1) his co-workers ignored him; the County (2)failed to provide necessary training when he returned fromdisability leave; (3) failed to transfer him to a different job;(4) failed to extend his employment status as "leave withoutpay with right to return;" and (5) reprimanded him for sleep-ing on the job.It is undisputed that by vigorously asserting his rights underthe ADA, as well as other state and federal discriminationlaws, McAlindin engaged in protected activity and establishedthe first element of a prima facie case. The County claims,however, that McAlindin has not established the second ele-ment. Relying on cases from other circuits holding that anemployer's conduct must constitute a demotion or be simi-larly severe, the County contends that McAlindin has not suf-fered an "adverse employment action." The County is correctthat McAlindin's sense of isolation is not actionable. SeeStrother, 79 F.3d at 869 ("Mere ostracism in the workplace isnot enough to show an adverse employment decision." (cita-tion omitted)).12 In addition, the County's refusal to extendMcAlindin's "right to return" beyond a year, which was dic-tated by its leave policy, was not an adverse employmentaction. Given that the County permitted McAlindin to returnto his job and informally assured him all along that it wouldrespect his rights under the ADA, we see no harm that consti-tuted an adverse action.The remaining incidents, however, do qualify as adverseemployment actions. We have previously rejected the Coun-ty's argument that adverse actions must be severe."[A plain-tiff] need not show that she was fired, demoted, or sufferedsome financial loss . . . ." Bouman v. Block , 940 F.2d 1211,1229 (9th Cir. 1991). In Bouman, we held that if a transfer toa "position was not made available to [plaintiff] because ofher involvement in protected activities," then she suffered anadverse employment decision. Id.[18] Nonetheless, McAlindin's retaliation claim ultimatelyfails because he has not established the third element of aprima facie retaliation claim: that the adverse actions occurredbecause of his protected activities. See Strother, 79 F.3d at868. The undisputed evidence shows that all of the adverseactions occurred because the County followed universally-applied policies, and not because McAlindin was targeted forunfavorable treatment on account of his protected activities.We address each of McAlindin's retaliation claims below.McAlindin was not targeted for unfavorable treatmentbecause of his protected activities; to the contrary, he wastreated like all other employees. Although the ADA imposesa different standard by virtue of the duty to make reasonableaccommodations, see supra, under FEHA, McAlindin mustshow that he was targeted for adverse treatment.McAlindin attempts to establish adverse treatment in fourways. First, McAlindin claims that the County denied him theopportunity to attend an off-site training seminar in the Natu-ral computer language. The evidence indicates that theCounty expects its employees to learn Natural from a com-puter tutorial that they can use at work. The only other Sys-tems Analyst learned Natural exclusively through the tutorialand on-the-job training. The County's expectation thatMcAlindin do the same is not evidence of retaliation.McAlindin's only response is that a County employee's state-ment that the County "has been able to rely almost exclusivelyon [the tutorial] and project assignments for our analysts tobecome proficient in Natural," indicates that some analystshave received additional training. But even if that is the case,there is no evidence that the additional training included fund-ing off-site seminars or that any such opportunities were dis-tributed in a discriminatory manner. The possibility that someanalyst may have attended a seminar at some point in timedoes not entitle McAlindin to do the same.Second, the County's failure to arrange a transfer is not evi-dence of retaliation. The evidence shows that the County'spolicy is to place the onus for arranging transfers on individ-ual employees and the departments to which they wish totransfer. In response to a letter from McAlindin's lawyerrequesting a transfer, the County offered to place McAlindinon the transfer list just like any other employee and said thatit would send him a transfer form.Finally, McAlindin has offered no evidence to show thatthe County targeted him for retaliatory treatment by citinghim for sleeping. The County policy forbids sleeping at work,and McAlindin's snoring apparently disrupted the work of hisco-workers. McAlindin does not contend, in the part of hisFEHA claim that is on appeal, that he was disciplined becauseof a disability in violation of the portion of the Act that pro-scribes discrimination; rather, he asserts, without any eviden-tiary support, that he was disciplined in retaliation for hisprotests against the alleged discriminatory treatment. Weaffirm the district court's grant of summary judgment on theretaliation claim.CONCLUSIONWe therefore REVERSE the district court's grant of sum-mary judgment on the ADA claim and AFFIRM the grant ofsummary judgment on the retaliation claim.
_____________________________TROTT, Circuit Judge, concurring in part and dissenting inpart:Although I agree with the majority that McAlindin's retali-ation claim fails as a matter of law, I respectfully disagreewith the majority's conclusion that the rest of his case has anymerit.First, the majority claims for McAlindin a disability --"interacting with others" -- that he does not claim for him-self. Although the evidence strongly suggests that in fact hehas a problem "interacting with others," McAlindin does notidentify this plight as a mental or physical impairment thatsubstantially limits one or more of his major life activities.Instead, McAlindin describes the disability upon which hegrounds this lawsuit as a "generalized anxiety disorder orpanic disorder," or an "anxiety/panic/somatoform disorder."At best, the suggestion that he cannot get along with othersmay be a symptom or a consequence of a disability, but nota disability per se.Notwithstanding McAlindin's own description of hisalleged disability, the majority inappropriately reaches out toplead for him a case he has not pleaded for himself. We havenot had briefing or adequate argument on the tricky issue ofwhether "interacting with others" qua interacting with otherscould be a recognizable disability under this statute, yet wedecide this non-issue anyway, warning everybody that simplybeing "cantankerous" -- whatever the legal or scientificdescription of that is -- won't be enough.Ordinarily, we won't hear on appeal a past-posted claim notmade in the district court, but here, we decide an explosiveissue never discretely raised by McAlindin anywhere. More-over, not only do we serendipitously create a mischievousPandora's box, but we then open it with a flourish and inviteinto federal court all but the "cantankerous" to sue thoseemployers with whom they cannot get along. Employersbeware, now you may have an obligation at the risk of beingsued to accommodate someone who does not possess the abil-ity to "get along with others." Not only is this "disability"vague, but it's bizarre, ominous, and wholly outside of thegroup of serious disabilities Congress intended to cover withthis statute. Does this opinion suggest that a person's foultemperament may no longer be a reason to deny that persona job?Second, the doctors evaluating McAlindin do not paint apicture of a man with a cognizable disability. Dr. Sandweiss,a treating physician, calls his impairment "slight tomoderate," and this opinion was rendered before he began hismedication. Dr. Rabiner says McAlindin is able to work. Dr.Reiss says that McAlindin is not disabled and requires noaccommodation to return to work; and not one of the doctorsclaims that his condition is substantially limiting.Third, I fail to see any causal connection whatsoever withMcAlindin's alleged sexual disfunction and the job he wants,the job he has, or the adverse employment actions he allegeshe suffered. Is the employer supposed to accommodate hisimpotence?Fourth, McAlindin's proffered evidence fails utterly toshow that he suffered an "adverse employment action." Thedefendants never denied him a transfer; they exercised theirright to try keeping him in the same position first, remainingopen to the idea that a transfer might be in order. Moreover,there do not appear to have been any consequences followingthe reprimand for sleeping when he was supposed to be work-ing, a chastisement for which the employer can hardly beblamed. His request for accommodation seems to be a requestthat he be allowed to sleep when he is supposed to be work-ing. Furthermore, the record reflects that McAlindin got thesame training everyone else did; and the record is signifi-cantly devoid of information that he needed special trainingdue to his disability. I would affirm on the ground thatMcAlindin, failed to go beyond mere allegations, and to dem-onstrate that he suffered an "adverse employment action." Inaddition, the employer proffered irrefutably appropriate rea-sons for everything it did.McAlindin describes himself, in what amounts to a self-serving diagnosis, as "essentially paralyzed." He says that themedication does not solve his work problems because "atleast once a month, I am completely incapacitated and forcedto lie down. The medication creates dizziness, lightheaded-ness, narrowed vision, and strange sensations in my head, andmy arms and legs." If he is correct, I do not see how on earthsuch symptoms could be accommodated by his employer.McAlindin, who still works for the County, has never indi-cated how a transfer would help him perform the essentialfunctions of the work he wishes to pursue, but more impor-tantly, the employer did nothing to interfere with his right totransfer, telling him only that the request was "premature."
___________________________FOOTNOTES 1 A somatoform disorder is a "condition marked by the presence ofsymptoms suggesting a physical disease but without physical changes orphysiological mechanisms that might account for the symptoms. In addi-tion, there must be evidence, or a strong suggestion, that the symptomshave a psychogenic or psychologic origin." J.E. Schmidt, 5 Attorney'sDictionary of Medicine and Word Finder at S-206 (1999).2 We recite the facts in the light most favorable to McAlindin, the non-moving party.3 The definition of disability also encompasses those who have a "recordof such an impairment" or are "regarded as having such an impairment."42 U.S.C. S 12102(2). Because we reverse the grant of summary judgmentbased on McAlindin's claim that he is actually disabled, we do not addresswhether he falls within these alternative definitions of disability.4 The County has not disputed that McAlindin meets the other statutoryrequirements of (1) having an "impairment" and (2) being a "qualifiedindividual," meaning he can perform the "essential functions" of his job.42 U.S.C. S 12111(8).5 We note that thirteen medical professionals examined McAlindin overa period of years, and all (even those retained by the government) con-cluded that McAlindin has a mental impairment. Four specifically recom-mended that McAlindin not return to his previous work setting because itwould exacerbate his condition. Many discussed McAlindin's condition insome depth.6 The Supreme Court recently called into question whether the EEOChas the authority to issue regulations implementing the ADA. See Suttonv. United Air Lines, Inc., _______ U.S. _______, 119 S. Ct. 2139, 1245-46 (1999).But see id. at 2161-62 (Breyer, J., dissenting) (arguing that the EEOC hasthis authority). The Court, however, ultimately declined to resolve thisissue. See id. at 2546; see also Murphy v. United Parcel Serv., Inc., _______U.S. _______, 119 S. Ct. 2133, 2138 (1999) (assuming that EEOC regulationsare valid and applying them). Because the Supreme Court has not resolvedthis issue and the parties in the present case have not raised it, we continueto look to the EEOC regulations and interpretive commentary for guid-ance.7 In Runnebaum v. Nationsbank , 123 F.3d 156, 170-71 (4th Cir. 1997)(en banc), the Fourth Circuit expressed doubt over whether engaging insexual relations is a major life activity, yet assumed that it was. The courtprovided no reasoning to support its skepticism. We think the SupremeCourt's analysis in Bragdon resolved the doubt raised by the Runnebaumcourt.8 The court acknowledged that "a more narrowly defined concept goingto essential attributes of human communication could, in a particular set-ting, be understood to be a major life activity. " Soileau, 105 F.3d at 15.9 McAlindin produced evidence that he continued to be impaired despitemedication with respect to at least two of the three of the major life activi-ties in which he claims to experience difficulty: sexual relations and sleep-ing. Given that the Supreme Court's clarification came after the districtcourt's determination, McAlindin also should be given the opportunity todemonstrate at trial that his inability to interact with others continues topersist despite the medication.10 We also reject the County's contention that the EEOC commentary,29 C.F.R. S 1630 (App.), precludes transferring McAlindin. Even if theCounty's erroneous construction of this commentary were correct, itwould not control because it would conflict with the clear language of thestatute, which permits job transfers. See 42 U.S.C. S 12111(9).11 In his briefs, McAlindin alludes to additional incidents of retaliation.Because McAlindin chose to dismiss the part of his retaliation claim thatwas based on these incidents in order to create appellate jurisdiction, wedo not consider these incidents.12 We note that McAlindin has not presented evidence of any specificinstances of harassment. He complains only of a very general sense of iso-lation in the workplace.