Gribben v. UPS ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHARLES W. GRIBBEN,  No. 06-15964
Plaintiff-Appellant, D.C. No.
v.  CV-04-2814-PHX-
UNITED PARCEL SERVICE, INC., FJM
Defendant-Appellee.
 OPINION
Appeal from the United States District Court
for the District of Arizona
Frederick J. Martone, District Judge, Presiding
Argued and Submitted
February 12, 2008—San Francisco, California
Filed June 16, 2008
Before: William C. Canby, Jr., David R. Thompson, and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Thompson
6939
GRIBBEN v. UNITED PARCEL SERVICE 6941
COUNSEL
Daniel Bonnet, Phoenix, Arizona, for the plaintiff-appellant.
David T. Barton, Phoenix, Arizona, for the defendant-
appellee.
OPINION
THOMPSON, Senior Circuit Judge:
Charles W. Gribben appeals the district court’s judgment in
favor of his employer United Parcel Service (“UPS”) in his
action alleging disability discrimination and retaliation in vio-
lation of the Americans with Disabilities Act (“ADA”). Grib-
ben, who suffers from congestive heart failure and
cardiomyopathy, requested and was denied accommodations
for certain limitations imposed by his cardiologist. The dis-
trict court granted summary judgment in favor of UPS on the
discrimination claim and a jury returned a verdict in favor of
UPS on the retaliation claim. We have jurisdiction under 28
U.S.C. § 1291. We affirm the jury verdict in favor of UPS on
the retaliation claim, reverse the district court’s summary
judgment in favor of UPS on the disability claim, and remand
that claim to the district court for further proceedings.
I. Background
In 1982, Gribben commenced employment with UPS and
since 1998 worked as a UPS shifter driver. Shifter drivers use
6942 GRIBBEN v. UNITED PARCEL SERVICE
vehicles to transfer trailers among various sites. Gribben was
generally assigned to an air-conditioned vehicle but, due to
business demands, UPS could not guarantee that he would
always have an air-conditioned vehicle.
In June 2000, Gribben was diagnosed with dilated cardio-
myopathy and paroxysmal arterial fibrillation. He has sub-
stantial limitations as a result of this condition. He testified
that he becomes light-headed, has difficulty concentrating and
breathing, has chest pain when undertaking activities in
extreme heat for extended periods of time, and has similar
symptoms when lifting weight over 50 pounds. Gribben was
told by his cardiologist not to engage in certain activities for
more than 20 minutes at a time in temperatures above 90
degrees Fahrenheit.
Due to his medical condition, and pursuant to the ADA,
Gribben requested that UPS provide him with an air-
conditioned vehicle. UPS denied his request for this accom-
modation. Beginning in June 2002, Gribben took an unpaid
leave of absence. On or about November 15, 2002, Gribben
filed a charge of discrimination and retaliation with the
EEOC, alleging that he was both discriminated and retaliated
against on the basis of his disability. The EEOC conducted an
investigation and issued a favorable cause finding by way of
a Letter of Determination dated March 17, 2004.
In June 2003, Gribben returned to work at UPS. Although
UPS had denied Gribben’s request for accommodation, UPS
nonetheless provided him with an air-conditioned vehicle for
every workday from June 2003 until March 31, 2004. On
March 31, 2004, when UPS failed to provide an air-
conditioned vehicle for Gribben to use, he refused to work.
He was then discharged by UPS. UPS contends that Gribben
was discharged for gross insubordination, while Gribben
asserts that he was discharged in retaliation for the EEOC
charge.
GRIBBEN v. UNITED PARCEL SERVICE 6943
On April 1, 2004, following his termination, Gribben filed
a second charge with the EEOC, alleging retaliation in viola-
tion of the ADA. The EEOC investigated that charge and
issued a second favorable cause finding. After obtaining the
requisite Notice of Right to Sue, Gribben filed suit.
The district court granted summary judgment in favor of
UPS on Gribben’s claim of ADA discrimination; the retalia-
tion claim went to trial. In response to a motion in limine, the
district court ruled that Gribben had not specifically pled facts
pertaining to his contentions concerning fitness for duty and
forced unpaid medical leave as part of his retaliation claim
and refused to allow the jury to consider those matters. Con-
sequently, the only issue left for the jury to decide was
whether Gribben’s March 31, 2004 termination was in retalia-
tion for Gribben having filed his first charge of discrimination
with the EEOC.
The jury rendered its verdict in favor of UPS and the dis-
trict court entered judgment accordingly. Gribben timely filed
a Motion for New Trial raising claims of error regarding the
trial court’s summary judgment and its rulings on UPS’s
motion in limine and on evidentiary and jury instruction mat-
ters. That motion was denied. Gribben now appeals the dis-
trict court’s summary judgment in favor of UPS on his ADA
discrimination claim, and the district court’s denial of his
motion for a new trial on his retaliation claim.
II. Discussion
A. ADA Claim
We review de novo a grant of summary judgment. See
Summers v. A. Teichert & Son, Inc., 127 F.3d 1150, 1152 (9th
Cir. 1997). 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 applied the relevant substantive law. See id.6944 GRIBBEN v. UNITED PARCEL SERVICE
[1] The 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). 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; (B) a record of such an impairment; or (C)
being regarded as having such an impairment.” 42 U.S.C.
§ 12102(2).
[2] Whether Gribben’s heart condition constituted a disabil-
ity under the ADA involves three inquiries: (1) whether Grib-
ben’s condition was a physical impairment; (2) whether the
life activities from which he was impaired (e.g., walking)
amounted to major life activities; and (3) whether Gribben’s
impairment substantially limited him from performing the
identified major life activities. Bragdon v. Abbott, 524 U.S.
624, 631 (1998).
Gribben argues that there is substantial evidence in the
record that he was disabled within the meaning of the ADA
due to substantial limitations on a number of major life activi-
ties including, but not limited to, walking. UPS concedes that
Gribben’s heart condition is a physical impairment, and that
the life activities limited by his heart condition, including
walking, amount to “major life activities.” UPS, however,
argues that Gribben’s impairment did not “substantially limit”
him from performing any major life activity.
“Substantially limits” is defined as:
i) Unable to perform a major life activity that the
average person in the general population can per-
form; or
ii) Significantly restricted as to the condition, man-
ner or duration under which an individual can per-
form a particular major life activity as compared to
the condition, manner, or duration under which the
GRIBBEN v. UNITED PARCEL SERVICE 6945
average person in the general population can per-
form that same major life activity.
29 C.F.R. § 1630.2(j)(1) (2006).
The regulations further provide that whether someone is
substantially limited in a major life activity is to be examined
using such factors as:
i) The nature and severity of the impairment;
ii) The duration or expected duration of the impair-
ment; and
iii) The permanent or long term impact, or the
expected permanent or long term impact of or result-
ing from the impairment.
29 C.F.R. § 1630.2(j)(2) (2006).
The district court considered Gribben’s claim under this
framework and determined that his disability was not substan-
tially limiting “on its face” because he was able to perform
the major life activities at issue.1 The district court granted
summary judgment in favor of UPS because Gribben “failed
to submit any evidence as to the abilities of an average person
in the general population to participate in outdoor activities in
the Phoenix summer.” Gribben argues that the district court
erred in reaching this conclusion because he was not required
to submit such comparative evidence. We agree.
[3] Gribben’s testimony alone regarding the significance of
his impairment is sufficient to create a genuine issue of mate-
rial fact at the summary judgment stage. See Head v. Glacier
Nw., Inc., 413 F.3d 1053, 1058 (9th Cir. 2005) (“[O]ur prece-
1
He could not, however, perform them for more than 20 minutes in tem-
peratures over 90 degrees.
6946 GRIBBEN v. UNITED PARCEL SERVICE
dent supports the principle that a plaintiff’s testimony may
suffice to establish a genuine issue of material fact.”). As a
result, Gribben was not required to submit the comparative
evidence the district court required. Id. (“Ninth Circuit prece-
dent does not require comparative or medical evidence to
establish a genuine issue of material fact regarding the impair-
ment of a major life activity at the summary judgment stage.”).2
[4] To determine whether the grant of summary judgment
was appropriate, we must review the evidence of Gribben’s
alleged impairment. Id. at 1059. Gribben’s cardiologist testi-
fied at his deposition that Gribben had nonischemic cardio-
myopathy, and that when Gribben worked in the extremes of
heat, he experienced shortness of breath, weakness and chest
pain. The cardiologist also testified that Gribben could not do
any heavy lifting or exertion for prolonged periods of time.
Gribben asserted that as a result of this disability, he experi-
enced “labored breathing,” that he could not “be in heat for
extended periods of time,” and that he experienced dizziness,
fatigue and difficulty concentrating. He testified at his deposi-
tion that he experienced labored breathing when he was anx-
ious and when he exerted himself too much and in the heat.
2
UPS’s reliance on Wong v. Regents of the University of California is
misplaced. 410 F.3d 1052 (9th Cir. 2005). In Wong, the plaintiff had a
learning impairment, which he claimed constituted a “disability” under the
ADA. Id. at 1055. We focused on the particular facts of that case in asking
“whether a person who has achieved considerable academic success,
beyond the attainment of most people or of the average person, can none-
theless be found to be ‘substantially limited’ in reading and learning.” Id.After reviewing the evidence, we concluded that such a finding was “im-
plausible.” Id. at 1065. “Because the factual context made implausible [the
plaintiff’s] contention that he was disabled in the activity of ‘learning’ as
compared to most people, he was required to come forward with more
persuasive evidence than otherwise would be necessary to show that there
is a genuine issue for trial.” Id. at 1066 (citations and internal quotation
marks omitted) (emphasis added). We concluded that Wong failed to meet
this heightened evidentiary burden. Id. Nothing in the present case, by
contrast, makes a disability finding implausible and necessitates a higher
evidentiary burden.
GRIBBEN v. UNITED PARCEL SERVICE 6947
Gribben testified that he had labored breathing “on and off all
the time” and that the labored breathing stopped him from
doing work that required too much exertion such as jobs that
require “loading or unloading trailers or sorting” or extended
physical activity such as lifting. He also testified that his heart
condition substantially limits his ability to walk, run, climb,
pull, push, squat, bend, lift and breathe.
[5] There was sufficient evidence in the record at the sum-
mary judgment proceeding to establish a genuine issue of
material fact as to whether Gribben’s impairment was sub-
stantial and limited his ability to perform regular daily activi-
ties including breathing, thinking and physical activities in
temperatures of 90 degrees or more. Accordingly, the district
court erred in determining at summary judgment that Gribben
was not disabled within the meaning of the ADA.
B. Retaliation Claim
Gribben appeals certain evidentiary rulings made during
the jury trial of his retaliation claim. We review evidentiary
rulings for an abuse of discretion. See Tritchler v. County of
Lake, 358 F.3d 1150, 1155 (9th Cir. 2004). Gribben contends
that he was denied the opportunity to elicit testimony about
UPS’s failure to personally speak to his treating physician
about his accommodation request. This argument was not
presented to the district court, and therefore it has been waived.3
See, e.g., Drummond v. City of Anaheim, 343 F.3d 1052, 1058
n.5 (9th Cir. 2003). Gribben also argues that the district court
erred in excluding evidence that the request for an indepen-
dent medical examination and forced medical leave consti-
tuted retaliation for his having requested accommodation
under the ADA. Because Gribben did not assert this claim in
his complaint, the parties’ joint proposed case management
3
In addition, the testimony does not appear to be relevant to Gribben’s
retaliation claim, although it may be relevant to Gribben’s discrimination
claim on remand.
6948 GRIBBEN v. UNITED PARCEL SERVICE
plan, or in his response to UPS’s motion for summary judg-
ment, the district court did not abuse its discretion in exclud-
ing at trial evidence pertaining to the claim. See S.M. v. J.K.,
262 F.3d 914, 917 (9th Cir. 2001), amended by 315 F.3d 1058(2003).
[6] Gribben contends the district court erred in excluding
the testimony of Charles Rahill which he offered “strictly for
impeachment purposes” and as to which he would have
agreed to a limiting instruction. The evidence was excluded
on the ground that Gribben had failed to disclose it in pretrial
discovery. We agree that the district court erred because
impeachment evidence does not have to be revealed in pretrial
disclosures. See Fed. R. Civ. P. 26(a)(1)(A), 26(a)(3). How-
ever, to reverse on the basis of this erroneous evidentiary rul-
ing, the error must be prejudicial. See Tritchler, 358 F.3d at
1155. Prejudice means that, more probably than not, the dis-
trict court’s error tainted the verdict. See McEuin v. Crown
Equip. Corp., 328 F.3d 1028, 1032 (9th Cir. 2003), cert.
denied, 540 U.S. 1160 (2004).
[7] We conclude that the error in excluding Rahill’s testi-
mony was not prejudicial. Jerry Dalzell, a UPS labor relations
manager, was the person who made the decision to terminate
Gribben. Although the excluded testimony which Rahill
would have given may have evidenced Dalzell’s knowledge
of findings by the EEOC, it would not have contradicted Dal-
zell’s testimony. As a result, the district court’s error was not
prejudicial. See Geurin v. Winston Indus., Inc., 316 F.3d 879,
882 (9th Cir. 2002).
Other excluded evidence would have established that a con-
versation took place between Dalzell and another UPS man-
ager, Steve Stevens. However, Dalzell did not deny that this
conversation took place — only that he did not recall it. The
exclusion of this evidence was insufficient to taint the jury’s
verdict. See McEuin, 328 F.3d at 1032; Guerin, 316 F.3d at
892.
GRIBBEN v. UNITED PARCEL SERVICE 6949
[8] Gribben argues the district court should have admitted
UPS’s prior consent decree with the EEOC, which UPS
agreed to in 2001 as part of a “no-fault” settlement. The dis-
trict court excluded the consent decree on the ground that its
probative value was outweighed by its potential for prejudice.
Gribben has provided no argument on appeal that would
establish that the district court erred in this ruling. In any
event, the district court did not abuse its discretion in refusing
to admit the consent decree because it was irrelevant and
would have been unduly prejudicial, confusing, and mislead-
ing. See Fed. R. Evid. 402, 403.
[9] Finally, we conclude that the district court did not err
in refusing to give the jury a punitive damages instruction.
The jury determined that the evidence was insufficient to
establish a claim for retaliation. This determination supports
the district court’s decision that the same evidence was insuf-
ficient to warrant an instruction on punitive damages. See
Altera Corp. v. Clear Logic, Inc., 424 F.3d 1079, 1087 (9th
Cir. 2005) (error in instructing the jury does not require rever-
sal if harmless). A punitive damages instruction may, how-
ever, be warranted in connection with Gribben’s disability
discrimination claim which we remand to the district court.
We express no opinion on that.
The parties shall bear their own costs on appeal.
AFFIRMED IN PART, REVERSED IN PART AND
REMANDED.