Becky Becceril v. Pima County Assessor's Office ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BECKY BECERRIL,  No. 08-17070
Plaintiff-Appellant,
v.  D.C. No.
4:04-cv-00725-JMR
PIMA COUNTY ASSESSOR’S OFFICE,
OPINION
Defendant-Appellee.

Appeal from the United States District Court
for the District of Arizona
John M. Roll, Chief District Judge, Presiding
Argued and Submitted
November 3, 2009—San Francisco, California
Filed November 25, 2009
Before: Betty B. Fletcher, William C. Canby, Jr., and
Susan P. Graber, Circuit Judges.
Per Curiam Opinion
15611
BECERRIL v. PIMA COUNTY ASSESSOR’S 15613
COUNSEL
Richard M. Martinez (argued), Law Office of Richard M.
Martinez, Tucson, Arizona, for the plaintiff-appellant.
Stacey Roseberry (argued), Pima County Attorney’s Office,
Tucson, Arizona, for Defendant-Appellee.
OPINION
PER CURIAM:
Plaintiff Becky Becerril, an employee of the Pima County
Assessor’s Office (“Office”), appeals from an order granting
summary judgment to the Office. Reviewing the order de
novo, viewing the facts in the light most favorable to Becerril,
15614 BECERRIL v. PIMA COUNTY ASSESSOR’S
and drawing all reasonable inferences in her favor, we con-
clude that there is no genuine issue of material fact for trial.
See Hernandez v. Hughes Missile Sys. Co., 362 F.3d 564, 568
(9th Cir. 2004). We therefore affirm the district court.
Becerril, who has a temporomandibular disorder (“TMD”),
worked in the Office’s mobile home section until December
2003, at which time the Pima County Assessor, Richard
Lyons, decided to reassign her to the Office’s public service
section. The record suggests that the public service section
can be stressful, and that Becerril’s TMD is aggravated by
stress. Becerril requested a transfer out of the public service
section as a reasonable accommodation under the Americans
with Disabilities Act (“ADA”). Her request was denied. She
currently works full-time in the Office’s audit section.
After her request for a reasonable accommodation was
denied, Becerril filed suit under the ADA, claiming that the
Office had discriminated against her by reassigning her
because of her disability and by refusing to engage in the
ADA’s “interactive process” after she had requested a reason-
able accommodation. The district court dismissed these
claims on summary judgment.
1. Discriminatory Reassignment Claim
[1] We assume without deciding that Becerril has stated a
prima facie case of discriminatory reassignment under the
ADA. The Office, however, has articulated several legitimate,
nondiscriminatory reasons for the reassignment, and thus to
survive summary judgment Becerril must raise a genuine
issue of material fact as to whether those reasons are pretexts
for discrimination. Costa v. Desert Palace, Inc., 299 F.3d 838,
855 (9th Cir. 2002) (en banc), aff’d, 539 U.S. 90 (2003).
[2] We conclude that Becerril has failed to raise a genuine
issue of material fact on this issue. There is no evidence that
Lyons reassigned Becerril because her coworkers in the pub-
BECERRIL v. PIMA COUNTY ASSESSOR’S 15615
lic service section complained about accommodations she
received for her TMD; the complaints Lyons received were
about Becerril’s alleged misconduct. The fact that Lyons
never publicly articulated his concerns about the alleged mis-
conduct also fails to raise a genuine issue, for
“[c]ircumstantial evidence of pretext must be specific and
substantial.” Bergene v. Salt River Project Agric. Improve-
ment & Power Dist., 272 F.3d 1136, 1142 (9th Cir. 2001). His
failure to investigate the allegations also does not show pre-
text, since Lyons was concerned with the “morale problem”
the allegations created and not the allegations themselves.
Finally, Becerril’s disbelief of Lyons’s explanations for the
reassignment cannot create a genuine issue of fact on pretext,
because there is no evidence to substantiate her disbelief. See
Schuler v. Chronicle Broad. Co., 793 F.2d 1010, 1011 (9th
Cir. 1986) (purely “subjective personal judgments do not raise
a genuine issue of material fact”). Consequently, the district
court did not err in granting summary judgment on Becerril’s
discriminatory reassignment claim.
2. Reasonable Accommodation Claim
[3] To be entitled to the interactive process that leads to a
reasonable accommodation, an employee must have a “dis-
ability” within the meaning of the ADA. See 42 U.S.C.
§ 12112(b)(5)(A) (2007). While the ADA recognizes three
different ways in which one can have a disability, see id.§ 12102(2)(A)-(C), Becerril claims only that she has “a physi-
cal or mental impairment that substantially limits one or more
. . . major life activities,” id. § 12102(2)(A). We conclude that
Becerril has not raised a triable issue on whether her TMD
substantially limits her in speaking, eating, seeing, sleeping,
and thinking and concentrating.
[4] As an initial matter, we do not agree with Becerril that
the ADA Amendments Act of 2008, Pub. L. No. 110-325, 122
Stat. 3553 (“ADAAA”), which alters the ADA’s definition of
“disability,” applies retroactively. We do not apply statutes
15616 BECERRIL v. PIMA COUNTY ASSESSOR’S
retroactively “absent clear congressional intent favoring such
a result.” Landgraf v. USI Film Prods., 511 U.S. 244, 280
(1994). The ADAAA does not show clear retroactive intent,
providing instead that “[t]his Act and the amendments made
by this Act shall become effective on January 1, 2009.”
ADAAA § 8, 122 Stat. at 3559 (emphasis added). Following
our sister circuits, we conclude that the ADAAA does not
apply retroactively. See Lytes v. DC Water & Sewer Auth.,
572 F.3d 936, 941 (D.C. Cir. 2009) (examining the statute and
concluding that “the delayed effective date in the ADAAA . . .
admits of only one explanation: The Congress intended the
statute to have prospective only effect”); accord Fredricksen
v. United Parcel Serv. Co., 581 F.3d 516, 521 n.1 (7th Cir.
2009); Milholland v. Sumner County Bd. of Educ., 569 F.3d
562, 565-67 (6th Cir. 2009); EEOC v. Agro Distrib., LLC,
555 F.3d 462, 469 n.8 (5th Cir. 2009).
[5] Becerril is not substantially limited in speaking because
she is limited only in talking constantly, for a long time, and
under stress. See Coons v. Sec’y of U.S. Dep’t of Treasury,
383 F.3d 879, 885 (9th Cir. 2004). She is not substantially
limited in eating because eating hard foods is not “of central
importance to daily life,” Toyota Motor Mfg., Ky., Inc. v. Wil-
liams, 534 U.S. 184, 197 (2002), and an inability to eat hard
foods is not substantially limiting. See Frank v. United Air-
lines, Inc., 216 F.3d 845, 848, 856-57 (9th Cir. 2000). She has
produced no evidence besides conclusory assertions on how
her impairment substantially limits her seeing or sleeping.
And though her pain and grogginess limited her thinking and
concentrating at times when she was working, Becerril has
not raised a genuine issue of material fact on whether her
intermittent symptoms substantially limited her ability to
think and concentrate not just at work but outside of work as
well. See Toyota Motor, 534 U.S. at 200-01. We conclude,
then, that the district court did not err by granting the Office
summary judgment on Becerril’s reasonable accommodation
claim.
AFFIRMED.