In Gribben v. United Parcel Service, (— F.3d —, 2008 WL 2405680, C.A.9 (Ariz.), June 16, 2008), the United States Court of Appeals for the Ninth Circuit considered whether a claim of disability discrimination under the Americans with Disabilities Act (“ADA”) requires comparative evidence of the average person’s abilities in order to establish the claimant’s disability at the summary judgment stage. The court concluded that a claimant is not required to provide such comparative evidence at the summary judgment stage. The court also considered a number of evidentiary rulings made by the district court in connection with a trial based on a retaliation claim under the ADA and found no reversible error in the trial proceedings.
Charles Gribben (“Gribben”) began working at United Parcel Service (“UPS”) in 1982, and specifically since 1998 as a shifter driver. In June 2000, Gribben was diagnosed with a heart condition and as a result has substantial limitations. Gribben’s cardiologist told him not to do certain activities for more than twenty minutes in temperatures above 90 degrees Fahrenheit. As a result, Gribben requested UPS guarantee him an air-conditioned vehicle, but his request was denied. In June 2002, Gribben took an unpaid leave of absence. Around November 15, 2002, Gribben filed a charge of discrimination and retaliation under the ADA with the Equal Employment Opportunity Commission (“EEOC”). In June 2003, Gribben returned to work and despite his denied request, was provided with an air-conditioned vehicle until March 31, 2004, when an air-conditioned vehicle was no longer provided. As a result, Gribben refused to work and was discharged. On March 17, 2004, the EEOC issued a favorable cause finding. Following his termination, Gribben filed a second charge of retaliation under the ADA on April 1, 2004 and received another favorable cause finding from the EEOC and eventually filed suit.
The district court granted summary judgment in favor of UPS on the discrimination claim, but the retaliation claim went to trial. As a result of a judicial finding, the jury was only allowed to consider if Gribben’s March 31, 2004 termination was in retaliation for his first charge of discrimination filed with the EEOC. The jury found in favor of UPS on the retaliation claim. Gribben filed a motion for a new trial and was denied. Gribben appealed the trial court’s summary judgment in favor of UPS on his discrimination claim, and the district court’s denial of his motion for a new trial on his retaliation claim.
“[T]he ADA prohibits discrimination against a qualified individual with a disability in regard to terms, conditions and privileges of employment.” 42 U.S.C. § 12112(a). Specifically, “the ADA defines ‘disability’ as ‘(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual.” 42 U.S.C. § 121002(2). To determine if Gribben’s heart condition is a disability the court considered: (1) if his condition was physical, (2) if his impaired activities were major life activities and (3) if his impairment substantially limited him from performing the identified major life activities. Bragdon v. Abbot, 524 U.S. 624 (1998). UPS conceded the first two elements, but argued that Gribben’s impairment did not “substantially limit” him from performing any major life activity.
The Code of Federal Regulations defines “substantially limits” in two ways: (1) either that person cannot perform major life activities as a person in the general population; or (2) that person is significantly restricted as to the condition, manner or duration in performing a particular life activity compared to an average person in the general population. 29 C.F.R. § 1630.2(j)(1) (2006). Further, the Code provides that whether someone is substantially limited in a major life activity is determined using the following factors: “i) the nature and severity of the impairment; ii) the duration or expected duration of the impairment; and iii) the permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment.” 29 C.F.R. § 1630.2(j)(2) (2006).
The district court concluded that Gribben’s disability was not “substantially limiting ‘on its face’ because he was able to perform the major life activities at issue,” despite the fact that he could not “perform them for more than 20 minutes in temperatures over 90 degrees.” Further, in granting UPS’s motion for summary judgment, the district court found that Gribben had not included the evidence of the abilities of an average person in the general population performing outdoor activities in the Phoenix summer. The Ninth Circuit Court of Appeals disagreed.
First, the court noted that Gribben was not required to include such comparative evidence to the average person’s abilities because “a plaintiff’s testimony may suffice to establish a genuine issue of material fact.” Head v. Glacier Northwest, Inc., 413 F.3d 1053 (9th Cir. 2005). Thus, Gribben’s testimony of his impairment was sufficient to survive summary judgment. Next, the court examined the record to review the deposition testimony of Gribben and Gribben’s cardiologist. Based on this evidence, the court concluded that the district court erred in granting UPS’s motion for summary judgment, being satisfied that the elements of the code were met.
Finally, the court considered a number of evidentiary rulings made by the district court for an abuse of discretion. Though the court did agree with Gribben on one of his challenges to the evidentiary rulings of the district court, the court determined that the error was not prejudicial.
Consequently, the court affirmed the jury verdict for UPS on the retaliation claim, but reversed the summary judgment in favor of UPS on the disability claim. The disability claim was remanded to the district court for further proceedings.