Herman N. Nunies, Plaintiff-Appellant,
HIE Holdings, Inc., Defendant-Appellee.
and Submitted June 12, 2018 Honolulu, Hawaii
from the United States District Court No. CV 15-0116 KSC for
the District of Hawaii Kevin S. Chang, Magistrate Judge,
Charles H. Brower (argued), Honolulu, Hawaii, for
Marguerite S. N. Fujie (argued) and Lisa W. Cataldo,
McCorriston Miller Mukai MacKinnon LLP, Honolulu, Hawaii, for
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.
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
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.
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
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.
TASHIMA, CIRCUIT JUDGE.
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
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
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.
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.
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.
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.
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.
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." 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.
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 ...