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Nunies v. HIE Holdings, Inc.

United States Court of Appeals, Ninth Circuit

September 17, 2018

Herman N. Nunies, Plaintiff-Appellant,
HIE Holdings, Inc., Defendant-Appellee.

          Argued and Submitted June 12, 2018 Honolulu, Hawaii

          Appeal from the United States District Court No. CV 15-0116 KSC for the District of Hawaii Kevin S. Chang, Magistrate Judge, Presiding

          Charles H. Brower (argued), Honolulu, Hawaii, for Plaintiff-Appellant.

          Marguerite S. N. Fujie (argued) and Lisa W. Cataldo, McCorriston Miller Mukai MacKinnon LLP, Honolulu, Hawaii, for Defendant-Appellee.

          Susan R. Oxford (argued), Attorney; Ann Noel Occhialino, Acting Assistant General Counsel; Jennifer S. Goldstein, Associate General Counsel; James L. Lee, Deputy General Counsel; Equal Employment Opportunity Commission, Washington, D.C.; for Amicus Curiae Equal Employment Opportunity Commission.

          Before: A. Wallace Tashima, William A. Fletcher, and Andrew D. Hurwitz, Circuit Judges.


         Employment Discrimination

         The panel affirmed in part and reversed in part the district court's summary judgment in favor of the defendant in an employment discrimination action under the Americans with Disabilities Act.

         The panel held that, under the ADA Amendments Act, the scope of the ADA's "regarded-as" definition of disability was expanded. Prior to the ADAAA, to sustain a regarded-as claim, the plaintiff had to provide evidence that the employer subjectively believed the plaintiff was substantially limited in a major life activity. Under the ADAAA, however, the plaintiff must show that he has been subjected to a prohibited action "because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity." Applying the correct law, and viewing the evidence in the light most favorable to the non-moving party, the panel concluded that the plaintiff established a genuine issue of material fact as to whether his employer regarded him as having a disability.

         The panel held that the district court further erred in concluding that the plaintiff did not meet the "physical" definition of disability under the ADA, which requires a showing that the plaintiff has a physical impairment that substantially limits one or more major life activities. The panel concluded that there was at least a dispute about whether the plaintiff's shoulder injury substantially limited the life activities of working and lifting.

         The panel reversed the district court's dismissal of both the ADA claims and plaintiff's state law discrimination claim. The panel affirmed the district court's ruling that Haw. Rev. Stat. § 378-35, which provides an exclusive remedy for certain claims arising from a workplace injury, did not bar the ADA claims. The panel remanded the case to the district court for further proceedings.



         In 2008, Congress enacted the ADA Amendments Act ("ADAAA"), which broadened the definition of disability under the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101 et seq. As relevant to this appeal, the ADAAA expanded the scope of the ADA's "regarded-as" definition of disability. We have not opined on this issue in the ten years since the ADAAA was enacted and some district courts have mistakenly continued to apply the narrower pre-ADAAA definition of regarded-as disability. We now write to clarify this issue.

         Plaintiff-appellant Herman Nunies was a delivery driver for HIE Holdings, Inc. ("HIE"). Nunies claims that he injured his shoulder and wanted to transfer to a part-time, less-physical warehouse job. The requested transfer was approved and all set to go through until Nunies told HIE about his shoulder injury. Two days after Nunies allegedly informed HIE about his injury, the company rejected his transfer request and forced him to resign. Nunies brought a disability discrimination suit against HIE under the ADA and state law, arguing that HIE terminated him because of his shoulder injury. HIE moved for summary judgment, which the district court granted.

         Applying the standard set forth in the ADAAA, we hold that the district court erred in concluding, as a matter of law, that Nunies was not regarded-as disabled. The district court further erred in concluding that Nunies did not meet the "physical" definition of disability under the ADA. We reverse and remand.


         1. Factual Background

         HIE is in the business of the purchase, sale, and distribution of food products for residential and commercial use. Nunies was a five-gallon delivery driver for the company in Kauai. His primary duties included operating HIE's company vehicle; loading, unloading, and delivering five-gallon water bottles; and occasionally assisting in the warehouse. The position required lifting and carrying a minimum of 50 pounds and other physical tasks.

         Sometime in mid-June 2013, Nunies wanted to transfer from his full-time delivery driver position to a part-time warehouse position. The parties dispute the motivation for this switch. Nunies attributes his desire to switch to the pain he had developed in his left shoulder. HIE - through a supervisor, Victor Watabu - contends that Nunies wanted to transfer so that he could focus on his independent side-business. To effectuate the transfer, Nunies found a part-time warehouse employee, Sidney Aguinaldo, to swap positions.

         Watabu contacted HIE's Honolulu office because that office needed to approve the Nunies-Aguinaldo swap. According to Watabu, the Honolulu office "tentatively" approved the switch pending resolution of some pay and duties questions. Nunies asserts that on June 14, 2013, Watabu told him that the switch had been approved.

         Next, Nunies states that on June 17, 2013, he notified his operations manager and Watabu that he was having shoulder pain. HIE disputes that it was aware of Nunies' shoulder injury. However, on a later-filed "Employer's Report of Industrial Injury," an HIE HR official noted that Nunies first reported the injury on June 17.

         The parties agree that on June 19, Watabu told Nunies that HIE would not extend the part-time warehouse position to him and that Nunies' last day would be July 3. Nunies argues that there were no discussions after June 14 about reaching an agreement until, on June 19, Watabu said "[y]ou gotta resign" because "[y]our job no longer exists because of budget cuts."[1] HIE's termination report, dated June 27, 2013, states that the "type" of Nunies' separation was "resignation," and that the reason for the separation was that the "part-time position [was] not available." However, on June 24, 2013, Watabu emailed his HIE colleagues, on an email chain about Nunies' last day of employment, and asked, "can you scan a copy for a job opening for a part-time warehouseman ad[?]" Nunies saw an ad for the position in the newspaper on June 26, 2013, one day before HIE completed Nunies' termination report.

         On June 20, the day after HIE informed Nunies that he would not get the part-time position, Nunies went to a doctor for his shoulder pain and procured a note stating that he should not work until being reevaluated on July 5. Therefore, although the last day that Nunies actually worked was June 19, he was still technically employed until July 3. After his doctor's visit, Nunies filled out a Workers' Compensation Accident Report and sent the report to HIE on June 27. The report notes that Nunies first reported the injury on June 17 and that the "injury is from lifting five gal bottles over a period of 5 years." In HIE's Report of Industrial Injury, it also states that Nunies reported the injury on June 17, but notes that Nunies "advised [his] supervisor that he will not be able to work full time due to increased jobs from his landscaping business." In describing the cause and nature of the injury, the Employer's Report states ...

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