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IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

NO. 97-17147

~~

VERAL. " E s ,

Plaintiff- Appellant,

V.

WALMART STORES, INC.; MME BLACK; RITA SILVA,

Defendant-Appellees.

Appeal eom the Judgment of the United States District Court for the

Northern District of California HONORABLE JOAN S. BRENNAN

United States Magistrate NO. CV-96-03342-JSB

\

APPELLANT'S OPENING BRIEF

Claudia Center THEEMPLOYMENTLAWCENTER A Project of the LEGAL AID SOCIETY

OF S A N FRANCISCO 1663 Mission Street, Suite 400 San Francisco, CA 94103 (4 15) 864-8848 (voice) (415) 864-3273 (TDD) (415) 864-8199 (fax)

TABLE OF CONTENTS

I

Page No.

I

TABLE OF AUTHORITIES ........................................................................................... v

INTRODUCTION ......................................................................................................... 1

STATEMENT OF JURISDICTION ................................................................................ 2

I

; ISSUES PRESENTED FOR REVIEW ........................................................................... 3

NATURE OF THE CASE ............................................................................................... 4

STATEMENT OF THE FACTS ..................................................................................... 4

PROCEEDINGS AND DISPOSITION BELOW .......................................................... 10

STANDARD OF REVIEW ........................................................................................... 10

SUMMARY OF ARGUMENT ..................................................................................... 1 1

I. MS. " E S WAS QUALIFIED ................................................ 12

II. MS. " E S DID NOT POSE A "DIRECT THREAT." ............ 12

III. MS. " E S ' APPLICATION FOR AND RECEIPT OF STATE DISABILITY INSURANCE (SDI) IS CONSISTENT WITH HER CLAIMS UNDER THE ADA ................................. 14

IV. MS. " E S ' TERMINATION WAS BASED ON HER DISABILITY AND NEED FOR ACCOMMODATION.. ........... 15

ARGUMENT ................................................................................................................ 16

I. EVIDENCE SUFFICIENT TO CREATE A TRIABLE ISSUE OF FACT INDICATES THAT PLAINTIFF VER4 L. " E S WAS AND IS A QUALIFIED INDIVIDUAL WITH A DISABILITY ............ 16

A. The Trial Court Failed to Properly Analyze Ms. Nunes' Claims of Disability-Based DiscnrmnaQon. .............................................................. 17 . . . .

'~ 1

B.

C.

D.

By Failing to Recognize an Unpaid Leave of Absence as a Reasonable Accommodation, the District Court Erred in Its Determination That Appellant Nunes Was Not “Otherwise Qualified.”. ................................................................... -19

Ms. Nunes’ Successfbl Work History Demonstrates Her Ability to Perform the Job of Cashier at Wal-Mart. ......................................... .21

PlainWs Leave of Absence Did Not Pose an Undue Hardship Upon Wal-Mart, and Was In Fact Expressly Permitted By Its Personnel Policies. ....................................................................... .2 1

1. Defendant Wal-Mart’s Own Personnel Policies Expressly Permitted Leaves of Absence ofUp to One Year in Len gth................. 22

2. PlainWs Leave of Absence Did Not Impose an Undue Burden Because the Evidence Shows that Wal-Mart Was Able to Ensure Adequate Holiday Coverage through Temporary Employees. .......... .24

II. THE EVIDENCE BEFORE THE DISTRICT COURT WAS INSUFFICIENT TO SHOW THAT PLAINTIFF “ E S POSED A DIRECT THREAT TO HERSELF OR OTHERS BECAUSE OF HER FAINTING SPELLS. ............................................ 25

A. Federal Law Requires an Individualized and Objective Inquiry to Support a Determination of Direct Threat. ..................................................... 26

B. In Terminating Ms. Nunes, Wal-Mart Stores Relied on a Store Manager’s Unsubstantiated and Subjective Assumptions.. ...................................... .28

., ll

t

C. Ms. Nunes’ Fainting Spells at Work, Prior to Her Treatment and Recovery, Do Not Justify a Summary Determination of Direct Threat. ................. 31

D. The Risk of Future Harm Was Highly Speculative ................................................ 32

1. The Deposition Testimony of Ms. Nunes’ Treating Physician, Cited by the District Court, Does Not Support a Finding of Direct Threat ............................................. 32

2. The Relatively Minor Nature of the Potential Hann Weighs Against a Direct Threat Defense. .......................................... 36

III. EVIDENCE I N THE RECORD INDICATES THAT THE REMAINING REASONS OFFERED BY THE DEFENDANTS TO JUSTIFY PLAINTIFF’S TERMINATION ARE PRETEWAL. ..................................................................................... 3 8

1. The Plaintif€ Was Not in Fact Terminated Because She Failed to Submit a Particular Wal-Mart Form. ...............................................,..39

2. The Plaintiff Was Not in Fact Terminated Because She Could Not Be Reached by the Defendants. ........................................................ .4 1

3. The Record Shows That the Defendants Terminated Ms. Nunes on the Basis of Her Disability and Her Need for Accommodation. .... .43

N. “ E S ’ APPLICATION FOR AND RECEIPT OF STATE DISABILITY I ” C E (SDI) BENEFITS IS ENTIRELY CONSISTENT WITH HER CLAIM OF BEING A “QUALIFIED INDIVIDUAL WITH A DISABILITY’ UNDER THE ADA. ............ .45

A.

B.

C.

D.

E.

Being “Disabled” for Purposes California’s State Disability Insurance Program is Consistent with Being a ‘‘QllBllfied Individual” Under the ADA. 46 ............................................................

The District Court’s Reliance on This Court’s Ruling in Kennedy v. Applause Was in Error. ............... .48

1 .State Disability Insurance is Distinct From Social Security .......................................... .49

2. A Determination of “Disability” for the Purposes of State Disability Insurance is Based on Standards that Are Entirely Distinct From Those Used by the Social Security Administration and Other Long- Term Disability Insurance Plans. ......................... 50

This Circuit’s Ruling in Risetto v. Plumbers and Steamfitters Local 343 Does Not Require a Different Result. 53 ............................................................

The Majority of Circuits and the EEOC Have Recognized that Representations Made for the Purposes of Disability Benefits Should Never Not as an Absolute Bar to Claims Under the ADA.............................................................................. 54

The Granting of Summary Judgment Against Plaintif€Nunes on the Basis of Her Application for and Receipt of SDI Benefits Undermines the Act’s Purpose of Promoting the Full Integration of Individuals with Disabilities Into the Workplace. .......... -5 8

CONCLUSION.. ........................................................................................................... 6 1

iv

TABLE OF AUTHORITIES

American Fed. of Gov’t Employees, Local S I v. Baker, 677 F. Supp. 636 (N.D. Cal. 1987) ..........................................................23

Anderson v. Liberty Lobby, 477 U.S. 242, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986) ...............................................,ll

Anderson v. Little League Bareball, 794 F. Supp. 342 (D. Ariz. 1992) .................................................................................27, 18

Anzalone v. Allstate Ins. Co., 1995 U.S. Dist. LEXIS 1272 (E.D. La. 1995) .......................................................................................56

August v. Oflees Unlimited, Inc., 981 F.2d 576 (1st Cir. 1992) .....................................................................:.............SO, 51

Bentivegna v. U. S. Dep’t of Labor, 694 F.2d 619 (9th Cir. 1992) ........................................................................................ 32

Blanton v. Inco Alloys Int’l, 123 F.3d 916 (6th Cir. 1997) .......................... 55 I

Buckingham v. United States, 998 F.2d 735 (9th Cir. 1993) ....................... 20

Chalk v. U.S. District Court, 840 F.2d 701 (9th Cir. 1988) ......................... 27

champ v. Mruyland, 884 F. Supp. 991 (D.Md. 1995) ................................. 36 1 I I I Chevron, U.S.A. v. Nat’l Resources Defense Council, 467 US. 837,

81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984) ................................................20

Cleveland v. Policy Management Systems, 120 F.3d 5 13 (5th Cir. 1997) ..........................................................................................56

Devlin v. Ariz. Youth Soccer Assoc., No. CIV-95-745 TUC ACM, 1996 U.S. Dist. LEXIS 12368 (D. Ariz. Feb. 8, 1996) ............................. 26

V

I

Federal Cases (cont'd.) Page@)

D'Aprile v. Fleet Services Corp., 92 F.3d 1 (1st Cir. 1996) ........................ 51

Daugherty v. City of El Paso, 56 F.3d 695 (5th Cir. 1995) .......................... 36

Dush v. Appleton Electric Company, 124 F.3d 957 (8th Cir. 1997) ...... 51,56

E.E.O.C. v. AIC See. Investigations, Ltd., 55 F.3d 1276 (7th Cir. 1995) ...................................................................................34, 56

E.E.O.C. v. Amego, 110 F.3d 135 (1st Cir. 1997) ......................................36

E.E. 0. C. v. Texas Bus Lines, 923 F. Supp. 965 (S.D. Tex. 1996) .....................................................................................36

Fredenburg v. Contra Costa Cty, No. C-96-3 136-VRW, 1997 U.S. Dist. LEXIS 5564 (N.D. Cal. Apr. 18,1997) appealpled, No. 97-15885 (May 16, 1997, 9th Cir.) ....................,.....................................................49

GiLhuly v. Consolidated Rail Corp., No. 95-CV-75 17 1-DT, 1997 U.S. Dist. LEXIS 13454 (E.D. Mich. May 10, 1997) .....................................................................55

Harrison v. Delaware, No. 95-406-SLR, 1996 U.S. Dist LEXIS 20541 (D. Del. Dec. 30, 1996) ......................................................

Hunt v. Longs Drug Stores, No. C-94-4 1 16-CAL (N.D. Cal. Sept. 10, 1997), appealjYed, No. 97-17003 (9th Cir. Oct. 8, 1997) ............................................................................. 50

Johnson v. Peralta Community CoLlege Dist., No. C-94-4255 MMC (PJH), 1997 U.S. LEXIS 14005 (N.D. Cal. Apr. 28, 1997) ..................................

Kacher v. Houston Community College System, 974 F. Supp. 615 (S.D. Tex. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .47

vi

.

Federal Cases (cont'd.) Page@)

Kennedy v . Applause. 90 F.3d 1477 (9th Cir . 1996) ............................p ass&

Kohnke v . Delta Airlines. 932 F . Supp . 1110 (N.D. Ill . 1996) ..................... 26

Krouse v . American Sterilizer Company. 126 F.3d 494 (3rd cir . 1997) ........................................................................................ 57

Lam v . Univ . ofHawaii. 40 F.3d 1551 (9th Cir . 1994) .................... 11. 38. 42

Lucero v . Hart. 915 F.2d 1367 (9th Cir . 1990) ........................................... 20

Mantolete v . Bolger. 767 F.2d 1416 (9th Cir . 1985) ............................. 16. 28

Martinson v . Kinrrey Shoe Corp., 104 F.3d 683 (4th Cir . 1997) .................. 37

McCreaty v . Libbey.Owens.Ford, No . 97.1571. 1997 U.S. App . LEXIS 35652 (7th Cir . Dec . 18. 1997) ................................... 55

McKennon v . Nashville Banner Publishing Co., 513 U.S. 352. 115 S . Ct . 878 (1995) .............................................................................. 59

McNemar v . Disney Stores. 91 F.3d 610 (3d Cir . 1996). cert . denied, 117 S . Ct . 958. 136 L . Ed . 2d 845 (1997) .................... 51. 57

Miller v . U S . Bancorp., 926 F . Supp . 994 @ . Or . 1996) ........................... 50

Mohamed v . Marriott Int .l. Inc., 944 F . Supp . 277 (S.D.N.Y. 1996) ..........................................................................56, 59, 60

. . ............................. Moses v Am. Nonwovens. 97 F.3d 44.6 (11th Cir 1996) 37

Nisperos v . Buck. 720 F . Supp . 1424 (N.D. Cal . 1989) ............................... 21

Norris v . Allied-Sysco FoodServ., Inc., 948 F . Supp . 1418 (N.D. Cal . 1996) ...................................................................20, 47, 53, 59

W h e a v . Hopper. 126 F.3d 1323 (11th Cir . 1997) ............................. 34. 35

vii

Federal Cases (cont’d.) P W s )

Overton v. Reilly, 977 F.2d 1190 (7th Cir. 1992) ........................................ 58

Parish v. Consolidated Engineering Lab, No. C 96-4213 MMC, 1997 U.S. Dist. LEXIS 15879 (N.D. Cal. Oct. 6, 1997) .......................... 47

Pressman v. Brigham Medical Group Found, Inc., 919 F. Supp. 516 (D. Mass. 1996) ........................................................... 56

Ransom v. Ariz. Bd of Regents, No. CIV 95-821 TUC-ACM, 1997 U.S. Dist. LEXIS 20080, at $18 0. Ariz. Oct. 22, 1997 ...... 18,22,23

Reynolds v. Brock, 815 F.2d 571 (9th Cir. 1987) .................................. 16, 28

Reynoldi v. Dole, No. C-94-7012-W (JSB), 1990 U.S. Dist. LEXIS 10259,57 Fair Empl. Prac. Cas. (BNA) 1848 (Aug. 1, 1990) ...................................................................................17, 24

Rissetto v. Plumbers and SteamJitters Local 343, 94 F.3d 597 (9th Cir. 1996) ............................................................................. 36, 52, 53

Rose v. WeLLs Fargo & Co., 902 F.2d 1417 (9th Cir. 1990) ........................ 53

Sarsy& v. United Parcel Service, 862 F. Supp. 336 (W.D. Okla. 1994) ..................................................................................36

............................ Schmidr v. Safeway, 864 F. Supp. 991 @. Or. 1994) 20,31

Sch. Bd of Nassau Cty. v. Arline, 480 US. 273, 107 S. Ct. 1123, 94 L. Ed. 2d 307 (1987) .......................................................................... 22

Sischo-Nownejad v. Merced Community CoIIege Dist., 934 F.2d 1104 (9th Cir. 1991). ..................................................................

Smith v. DovenmuehLe Mortgage, 859 F. Supp. 1138 (N.D. Ill. 1994) .........................................................................................

Stone v. Mount Vernon, 118 F.3d 92 (2d Cir. 1997) ................................... 22

... wll

P

Federal Cases (cont’d.) Page@)

(M.D. Ala. June 13, 1997) .................................................................... $7, 55 Sumner v. Michelin North America, 966 F. Supp. 1567

Swanks v. Washington Met. Area Transit Auth., 116 F.3d 582 @.C. Cir. 1997) ......................................................................................56

Talavera v. School Bd. of Palm Beach, 129 F.3d 1214 (11th Cir. 1997) .........................................................................................

lluco v. Hoechst C e h s e Corp., 101 F.3d 1090 (5th Cir. 1990) ............... 36

United States v. City and County of Denver, 943 F. Supp. 1304 @. Colo. 1996) ........................................................................... 18, 22, 23

Voytek v. Regents of the Univ. of Cal., No. C-92-3465-EFL9 1994 U.S. Dist. LEXIS 12453,5 h e r . Disabilities Cas. (BNA) 1255,5N.D.L.R. 7343 (N.D. Cal. Aug. 25, 1994), a f d , 77 F.3d 491 (9th Cir. 1996), cert. denied, - U.S. - 117 S. Ct. 172, 136 L. Ed. 2d 113 (U.S. 1996) ........................................ 17

Wallis v. J.R. Simplot Co., 26 F.3d 885 (9th Ck. 1994) .............................. 38

Warren v. City of Carlsbad, 58 F.3d 439 (9th Cir. 1996), cert. denied, 116 S. Ct. 1261 (1996) ............................... 10

Washington v. Garrett, 10 F.3d 1421 (9th Cir. 1993) ........................... 38, 42

Weigel v. Target Stores, 122 F.3d 461 (7th Cir. 1997) ................................ 55

mitbeck v. yital Signs, 116 F.3d 588 @.C. Cir. 1997) .............................. 56

Wood v. County ofAlameda, No. C-94-1557-TE6 1995 U.S. Dist. LEXIS 17514,5 h e r . Disabilities Cas. (BNA) 173, 7 N.D.L.R. 7 254 (N.D. Cal. 1995) .................................................. 23

ix

State Cases

Jansen v . Food Circus Supemuzrkets. 110 N.J. 363 A.2d 682 (N.J. 1987) ........................................................................ 28. 36

Prilliman v . UnitedAir Lines. 53 Cal.App.4t.h 935 (1997) ......................... 47

Federal Statutes

Americans with Disabilities Act of 1990 (ADA). 42 U.S.C. 6 12101 et seq ................................................................................... p assim

12101(a)(4), (8) .................................................................................... 58 6 12101@)(2) .......................................................................................... 59 6 12111(3) .................................................................................. 22,25, 53

6 12111(10)(r3) ....................................................................................... 22 6 12112(a) ................................................................................... 18,21, 34 6 121120) .............................................................................................. 18

6 12113@)(5)(a) ...................................................................................... 25

6 12111(8) ............................................................................................... 17

6 12113(b) .............................................................................................. 25

0 12117(a) ............................................................................................... 59 6 12205 ...................................................................................................... 3

28 U.S.C. 6 1291 .......................................................................................... 3 28 U.S.C. 6 1331 .......................................................................................... 2 28 U.S.C. 6 1367 .......................................................................................... 2 2s U.S.C. 6 2201 .......................................................................................... 2 2s U.S.C. 6 2202 ......................................................................................... 2 29 U.S.C. 6 2617 (a)(2) ................................................................................ 2 29 U.S.C.$ 2617 (a)(3) ............................................................................... 3

42 U.S.C. 6 416(i) ............................................................................... 15. 49 42 U.S.C. 8 1382(a)(3)@3) ................................................................... 15. 49

Family and Medical Leave Act of 1993 (FMLA). 29 U.S.C. 0 2601 et seq ....................................................................................... 2. 49

Federal Rule of Civil Procedure 56 ................................................................ 2

Federal Remlations and Guidance P a g W

29 C.F.R. 6 1630.2(r) ..................................................................... 22, 32, 36 29 C.F.R. 6 1630.2(p) .................................................................... 25, 26, 27

29 C.F.R. Part 1630, App., 0 1630.2(r). .................................................... 27

EEOC Order 915.002, Compliance Manual, 6 902, Definition of the Term “Disability” (Mar. 14, 1997) ...................................................................... 44

EEOC Notice No. 915.002, Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities (Mar. 25, 1997) ...................... 19

EEOC Notice No. 915.002, Enforcement Guidance on the Effect of Representations Made in Applications for Benefits on the Determination of Whether a Person is a “Qualiiied Individual with a Disability” Under the Americans with Disabilities Act of 1990 (Feb. 12, 1997) ...................... 54, 58

EEOC, A Technical Assistance Manual on the Employment Provisions (Title I) of the Americans with Disabilities Act, $ (Jan. 1992) ................................ .19

State Statutes

California’s Fair Employment and Housing Act (FEW), 5 12900 et seq. ............................................................................................ 0 12965(b) 394

Cal. Code of Civ. Proc. 5 1021.5 ................................................................ 3

Cal. Unemp. Ins. Code $1265 ........................................................................................................ 6 $ 2601 .................................................................................................. 2, 50 6 2626(a) ........................................................................................... 14, 46

. 0 2626(b) .............................................................................................. ..46 6 2629 ...................................................................................................... 46 6 2653 ................................................................................................ 14, 49 6 2656 ...................................................................................................... 47

LePislative History H.R. Rep. No. 485 (11), lOlst Cong., 2d Sess., (1990) ................................ 18

S . Rep. No. 116, lOlst Cong., 1st Sess. (1989) .......................................... 18

xi

INTRODUCTION

This case is about reasonable accommodation under the Americans with

Disabilities Act of 1990. Specifically, this is a case about the right of an

employee with a disability to take an unpaid leave of absence for treatment and

recovery. This accommodation is recognized by federal courts as well as by the

Equal Employment Opportunity Commission, the federal agency charged with

enforcing the ADA. In fact, medical Ieaves of absence are widely avdable

under the personnel policies of many major companies, including the defendant

and appellee Wal-Mart Stores. Access to a reasonable accommodation leave is

often critical for those indviduals who work while coping with chronic or

episodx condtions.

Appellant Vera Nunes was a sales associate for Wal-Mart. She

successfly performed her job duties, which included cashiering and some

stocking. She is also an individual with a dsability. She has depression and a

related fainting disorder. In early 1995, while employed by Wal-Mart Stores,

Ms. Nunes experienced a recurrence of her disability, and went out on a leave of

absence. The purpose of this medical leave was to enable Ms. Nunes to obtain

treatment, to stabilize and control her condtion, and to recover such that she

could return to work.

In addition to being expressly permitted under Wal-Mart’s own policies,

this leave was also a reasonable accommodation under the Americans with

Disabilities Act of 1990. In fact, Ms. Nunes did recover, and her fainting

disorder was under control by December of 1995, well within the one-year cut-

off date prescribed by Wal-Mart’s own policies. Before Ms. Nunes could return

to work, however, she was terminated.

The defendants showed no “undue hardship” justlfjlng this employment

action, and in fact admitted their regular reliance upon temporary employees to

fulfill the store’s staf6ng needs. Despite defendants’ lack of a business

justification (or objective evidence supporting a “direct threat” defense), the

district court granted summary judgment to the defendants. This appeal

followed.

STATEMENT OF JURISDICTION

Jurisdiction in the &strict court was founded on 28 U.S.C. $6 1331,2201,

2202 and 29 U.S.C. 6 2617 (a)(2). PlaintifT brought this suit under the

Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. 6 12101 et seq., and

under the F d y and Medical Leave Act of 1993 (FMLA), 29 U.S.C. 6 2601 et

seq. Supplemental jurisdiction over the related state law claims under the

doctrine of pendent jurisdiction was pursuant to 28 U.S.C. 6 1367. Defendants’

motion for summary judgment under Fed. R. Civ. P. 56 was granted on

Appeflant’s Opening Brief Page 2

September 24,1997. Final judgment in this matter, disposing of all claims

against all parties, was entered on October 6,1997. Plaintiff‘s notice of appeal

was filed on November 4,1997. Appellate jurisdiction is established under 28

U.S.C. 0 1291. PlaintiE seeks attorneys fees for this appeal under 42 U.S.C. 0

12205,29 U.S.C. 0 2617 (a)(3), Cal. Gov’t Code 6 12965(b), Cal. Code of

Civ. Proc. 5 1021.5, and other provisions.

ISSUES PRESENTED FOR REVIEW

1. Whether the District Court erred in finding that plainWNunes was

not a “qualified individual with a disability” under the Americans with

Disabilities Act because she was on a leave of absence for treatment and

recovery on the day she was terminated.

2. Whether the District Court erred in finding that plaintdfNunes

could not be a “qualified individual with a disability” under the Americans with

Disabilities Act because she applied for and received State Disability Insurance

(SDI) benefits during her leave of absence for treatment and recovery.

3. Whether the District Court erred in &ding that plaintiffNunes

posed a “direct threat” to the health and safety of herself and others because of

her disability.

Page 3

NATURE OF THE CASE

Plaintiff Vera L. Nunes was a sales associates at Wal-Mart Stores and is

an individd with a disability. She brought suit in federal district court,

Northern District of California, alleging that her termination from employment

violated the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. 6 12101

et seq. and various state laws, including California’s Fair Employment &

Housing Act (FEHA), Cal. Gov’t Code 6 12900 et seq. This appeal challenges

the district court’s granting of summary judgment for the defendant W a l - m .

STATEMENT OF THE FACTS

Vera L. Nunes was hired as a sales associate by Wal-Mart Stores in

Ukiah, California on November 6, 1993. Bcerpts of Record, hereinafter

“E.R.” 24, 116.1 She is also an individual with a disability and a record of

disabiiity. She has a seizure disorder as well as depression. [E.R. 24-30, 141-

143,189-195.1 These conditions are chronic and episodic, and when active

substantially limit several of Ms. Nunes’ major life activities, including standing

and, at times, working. F.R. 24-30, 189-195.1 As a result of her seizure

disorder, Ms Nunes has experienced “syncopal episodes” causing her to black

out or faint. E.R. 14 1-1 43 .] “ S ~ ~ C O ” means di7Jnness. Syncopal episodes are

~IZZY spells or fainting episodes.

Appellant’s Opening Brief Page 4

On February 11,1994, Ms. Nunes received her 9O-day review fiom Wd-

Mart. She was rated as “Exceeds Requirements” on nine areas, and as ‘‘Meets

Expectations” on seven areas. [E.R. 116.1 Her overall performance was

described as follows: “Vera continues to grow and exhibit an attitude congruent

with Wal-Mart values. Vera is task oriented and strives for customer oriented

results.” [E.R. 116.1 Ms. Nunes loved her job as a cashier at Wal-Mart. FB. 24 .]

Upon the successfid completion of her first 90 days, Ms. Nunes became a

regular associate, eligible for Wal-Mart benefits. [E.R. 162.1 Under Wal-Mart’s

express policies, “regular associates are eligible for a medical leave of absence

of up to one year.” [E.R. 13 1 .] According to the Associate Benefits Book, ‘‘The

length of a medical leave is determined by the attending physician’s statement

but may not exceed one year unless the associate is on a Workers’

Compensation related medical leave and state law requires the leave be

extended.” [E.R. 127.1 Wal-Mart’s policy of granting employees unpaid leaves

of absence of up to one year in length is repeated throughout its publications.’

See Personal Choice, The Benefits Book (Jan. 1994), E.R. 131 (“When it is medically necessary to be off work due to an illness, injury, or disability . . . regular associates are eligible for a medical leave of absence of up to one year”); California Associates Handbook, E.R. 168 (“The maximum length of time on a leave of absence is one year”); Associate Handbook, E.R. 175 (“Eligible fidl- time associates receive the following benefits: . . . Leave of Absence”); Personal


Indeed, Rita Silva, the personnel manager for the Ukiah store, confirmed that

leaves up to one year are “routinely” granted with documentation. [E.R. 92.12

In early 1994, Ms. Nunes’ disability became more active as a result of

several stressful life events, including the death of her father. [E.R. 25.1 To

obtain treatment and to recover, Ms. Nunes took a leave of absence from April

12, 1994, to July 23, 1994. F.R. 24-25.] Defendant Wal-Mart Stores was able

to staff its Ukiah store despite Ms. Nunes’ leave of absence.

That same year, on October 5, 1994, Ms. Nunes received her one-year

review. She was given a raise and rated “above standard,” the highest rating

available. [E.R. 117-1 19.13 Her supervisor wrote:

Vera works very hard at serving our customers. She will go out of her way to ensure that our customers leave our store satisfied.

Choice, The Benefits Book (Jan. 1993), E.R. 184 (“Wal-Mart’s maximum Leave of Absence is 12 months”); Black Depo. Testimony, E.R. 104 (leave “can be up to a year”).

There is a disputed issue of material fact as to what constitutes sufficient medical documentation for a leave of absence. Ms. Nunes contends that doctor’s notes indicating her condition were suflicient and acceptable to the defendants. [E.R. 25-27.] The defendants contend that a specific Wal-Mart form, entitled “Leave of Absence,” was required. [E.R. 92,244.1

Performance, attendance and conduct must be rated satisfactory or above for a Wal-Mart associate to be eligible for an increase. California Associates Handbook, E.R. 165; see also E.R. 173 (“increases are based on performance”).


During her leave of absence, Ms. Nunes submitted medical documentation

to Wal-Mart Stores providing the most current, anticipated return-to-work date.

[E.R. 120-125,204.1 On or or about August 1, 1995, Ms. Nunes submitted a

doctor’s certification providing a December 1, 1995 return-to-work date. P.R.

205; see also E.R. 206,236.1 This documentation was accepted by Wal-Mart

Stores without objection. The defendants concede that they had access to all of

the medical documentation, including the certification indicating a December 1,

1995 return-to-work date, prior to Ms. Nunes’ termination. [E.R. 83-85, 102-

104; see also Court Record, hereinafter “C.R.,” No. 3 1, p. 7.1

In fact, the December 1, 1995 date was an accurate estimate. By

November and December of 1995, Ms. Nunes’ disorder was substantially

improved. First, in October of 1995, during a stay at the UCSF hospital, Ms.

Nunes learned breathing exercises that assisted her in controlling her episodes.

[E.R. 27-28,31-37.1 Second, in December of 1995, Ms. Nunes remembers

taking medication that she believes has fiuther assisted her in controlling the

episodes. [E.R. 44-45.] A single episode on December 9, 1995 is the last

episode that Ms. Nunes could recall at the time of her deposition on March 11,

1997. [E.R. 29,45, 145, 150.1

In short, by December of 1995, Ms. Nunes had recovered, and her fainting

disorder was under control, all well within the one-year cut-off date prescribed


[Vera] keeps customers flowing through her lines so more people can purchase merchandise.

[Vera] works with fellow cashiers, CSMs; and management team on opportunities . . . to keep our customers satisfied.

Vera has good initiative when things are slow to keep productive and get things done. . . .

[Vera] follows Wal-Mart policies so that her area is clean and efficient. [She] generates ideas on how to make system work better.

[E.R. 117-1 19.1 The evaluation encourages Ms. Nunes to develop her evident

leadership abilities: “Step up and be a leader at the fiont. You [are] a given

leader with your knowledge and experience. Help CSMs empower the cashiers

to get maximum productivity. BE THE LEADER YOU ARE A.S.A.P.” [E.R.

117-1 19.1

In early 1995, during a five-week period of time, Ms. Nunes’ seizure

condition recurred, and she experienced three episodes at work. E.R. 189-195.

During the last of these episodes, on March 3,1995, she fell on the ground. Her

glasses broke and cut her face on her left eyebrow. She went to the emergency

room for stitches and was released the same day. [E.R. 25-26,201-202.1 She

went out on a leave of absence for diagnosis, treatment and recovery. W.R. 25-

26.1

Customer service managers.


by Wal-Mart’s own policies. Unfortunately, Ms. Nunes was not permitted to

reap the benefit of her leave of absence. On or about October 27, 1995, store

manager Mike Black decided to terminate Ms. Nunes.’ [E.R. 13,52.] Mi.

Black testified that he decided to terminate because the leave had “gone on so

long,” and that Ms. Nunes was “an endangennent to herself.” P.R. 99, 109-

112,114.1 He also testdied that he terminated Ms. Nunes because she did not

submit the correct Wal-Mart form, and because he wanted to hire for the

holidays. F.R. 99, 104-105.1

On or about October 30, 1995, after learning from Black that Nunes was

to be terminated, store personnel manager Rita Silva filled out Ms. Nunes’ “Exit

Interview” form, marking “due to health” as the reason for the termination.

E.R. 70-71, 132.1 Subsequently, after consulting with Wal-Mart’s legal

department, Silva crossed out that reason, and stated “Other” with the

explanation, “cannot hold position during x-mas season.” [E.R. 71-73, 132.1 A

sentence initially written in the “Explanation of Termination’’ section is also

crossed out and cannot be read. E.R. 132.1

’ At the very time of her termination, &om October 23 through October 26, 1995, Ms. Nunes was in the UCSF hospital learning stress reduction exercises to control her seizures. Her attending physician later testified in deposition and by declaration that Ms. Nunes made s i d c a n t progress through this treatment. E.R. 35-37,245-259.1


PROCEEDINGS AND DISPOSITION BELOW

This case was filed in District Court, Northern District of Califo- on

September 11,1996. The parties agreed to have the case heard by a magistrate,

and the case was assigned to Magistrate Judge Joan S. Brennan. After close of

discovery, the defendants filed a motion for sllmmary judgment on August 7,

1997, seeking dismissal of plaintiffs cla.inu. Plaintiff filed her opposition on

August 20,1997. Defendants' reply was filed 0x1 August 28,1997. On

September 24, Magistrate Judge Brennan granted defendants' motion for

summary judgment. Judgment was entered on October 2, 1997. PlainWs

request for leave to file a motion for reconsideration was denied on October 16,

1997.

STANDARD OF REVIEW

An appellate court reviews a grant of summary judgment de novo.

Warren v. City of Carlsbad, 58 F.3d 439,441 (9th Cir. 19961, cert. denied, 116

S. Ct. 1261 (1996). The appellate court must determine, viewing the evidence in

the light most favorable to the nonmoving party, whether there are any genuine

issue of material fact and whether the district court properly applied the relevant

substantive law. Id

Summary judgment may be granted "when the pleadings, depositions,

answers to interrogatories, and ariminissions on fle, together with the affidavits,

Appellant's Opening Brief Page 10

if any, show that there is no genuine issue as to any material fact and that the

moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).

At the summary judgment stage, the district court is not to weigh the evidence or

determine the truth of the matter, but should only decide whether there is a

genuine issue for trial. Anderson v. Liberty Lobby, 477 U.S. 242,249 (1986).

This Circuit requires “very little evidence to survive summary judgment in a

discrimination case, because the ultimate question is one that can only be

resolved through a ‘searching inquiry’ - one that is most appropriately

conducted by the factfinder, upon a fidl record.” Lam v. Univ. of Haw., 40 F.3,

155 1, 1564 (9th Cir. 1994), citing Sischo-Nownejad v. Merced Community

CoZZege Dist., 934 F.2d 1104, 11 11 (9th Cir. 1991).

SUMMARY OF ARGUMENT

The district court ruled that Vera L. Nunes was not a quahfied individual

with a disability under the Americans with Disabilities Act. Although the court

found that Ms. Nunes had a disabdity, it concluded that she was not “qualified,,”

and dismissed her claims under the Act. [E.R. 21.1 The trial court failed to

properly analyze Ms. Nunes’ claims under governing law, and its ruling was in

error.


I. MS. NUNES WAS QUALIFIED.

The court ruled that Ms. Nunes was not qualified because on the of

her termination, she remained on an unpaid medical leave and was at that

moment unable to perform the essential hc t ions of her position. [E.R. 18-19.]

This reasoning overlooks the basic principle that a ‘‘qualified individual‘’ is one

who, with or without accommodation, can perform the job. 42 U.S.C. 6

121 l(8). In this case, the reasonable accommodation Ms. Nunes needed was an

unpaid leave of absence for treatment and recovery. Such an accommodation is

recognized by federal courts as well as the Equal Employment Opportunity

Commission.

Further, under Supreme Court precedent, an employer cannot deny a

disabled employee any employment options that are reasonably avadable under

its own policies. Wal-Mart’s own policies allowed for an unpaid medical leave

of up to one year. In the case of Ms. Nunes, she was not permitted this option.

Nor can the defendants show that Ms. Nunes’ leave imposed an undue hardship.

Temporary workers are regularly used by Wal-Mart to fulfill staffing needs.

11. MS. NUNES DID NOT POSE A “DIRECT THREAT.”

The trial court further court ruled that Ms. Nunes was not qllalified

because Wal-Mart had a “legitimate fear that plainawas a ‘direct threat’ to the

safety of herself and others.” E.R. 19.1 While Ms. Nunes did have several


fainting spells at work, her condition prior to treatment cannot be the basis ofa

“direct threat” defense. The entire purpose of the reasonable accommodation - the unpaid medical leave - was to stabilize Ms. Nunes’ disability. And indeed,

Ms. Nunes did recover through the treatment she received during her unpaid

leave. Moreover, the potential medical effects of falling to the ground &om a

standing position, in an environment fiee from heavy machinery, are relatively

minor.

To bolster their direct threat defense, the defendants attempt to

sensationalize and exaggerate the degree of harm threatened by Ns. Nunes’

fainting spells. The defendants offer a speculative scenario in which Ms. Nunes

is holding a heaw object over her head while fainting, and thereby drops this

object on herself or another standing nearby. Ms. Nunes was a cashier in a non-

industrial setting. She was not responsible for holding heavy objects over her

head. Nor was she was responsible for driving a vehicle or operating dangeous

equipment.

To protect against h& stereotypes and unfounded fear, governing law

requires an objective and individualized analysis to support a “direct threat”

defense. Although a sigmficant risk of substantial harm is required, the court

instead accepted the defendant’s speculation, concluding that “it was possible


that Nunes could have hurt herself or others if she suffered an attack while

canylng something heavy.” [E.R. 20.1

IIL MS. “ES’ APPLICATION FOR AND RECEIPT OF STATE DISABILITY INSURANCE (SDI) IS CONSISTENT WITH HER CLAIMS UNDER THE ADA.

The court ruled that Ms. Nunes was barred from pursuing her claims under

the Act because she applied for and received State Disability Insurance (SDI).

[E.R. 20.1 In fact, the SDI program is entirely consistent with the taking of an

unpaid leave of absence as a reasonable accommodation. A person with a mental

or physical condition causing a temporary inability to perform her regular or

customary work is “disabled” for the purposes of SDI. Cal. Unemp. Ins. Code

6 6 2626,2653. As these and other provisions make clear, the program is

designed to provide temporary wage replacement to employees like Ms. Nunes

who are taking employer-approved leaves of absence. Accordingly, Wal-Mart’s

own policies instruct its California employees who are “temporanly disabled due

to illness or injury” and want to know more about “financial relief” to make a

claim under the state program. [E.R. 180.1

This Circuit’s opinion in Kennedy v. Applause, 90 F.3d 1477 (9th Cir.

1996) is inapposite. The plaintiff in Kennedy applied for benefits administered

by the federal Social Security Administration. To quaMy for SSA benefits,

individuals must show an inability “to engage in any substantial g d activity”


due to a physical or mental impairment which is expected to last longer than one

year. 42 U.S.C. $6 4160, 1382(a)(3)@). Ms. Nunes never filed for Social

Security benefits; she filed for State Disability Insurance, a program with an

entirely distinct and more narrow determination of disability.

Further, the ruling by this Circuit in Kennedy was made without the

benefit of guidance issued by the Equal Employment Opportunity Commission

regarding the impact of representations made for disability benefits on ADA

claims. According to the Commission, such representations “are never an

absolute bar” to a finding that the individual is a qualified individual under the

ADA.

IV. MS. NUNES’ TERMINATION WAS BASED ON HER DISABILITY AND NEED FOR ACCOMMODATION.

In dismissing plaintifFs claims, the district court ignored s i w c a n t

evidence that Wal-Mart Stores terminated Ms. Nunes on the basis of her

disability and need for accommodation. For example, in filling out Ms. Nunes’

“Exit Interview” fonn, the store personnel manager marked “due to health” as

the reason for termination. Only after speaking to legal counsel for all of Wal-

Mart’s California stores did she cross out that reason and replace it with “other,”

with the explanation, “cannot hold position during x-mas season.” [E.R. 70-73,

132.7

Appellant’s Opening Brief Page I5

Further, statements made by the Ukiah Store Manager and by the Wal-

Mart Review Board indicate that the defendants required that Ms. Nunes be

“completely cured” before she would be permitted to return to work. Such a

requirement violates the ADA, which requires the employment and

accommodation of qualified individuals with chronic disabilities. Where, as

here, the plaintiff has created a genuine factual issue as to the employer’s

discriminatory intent, surmnary judgment should be reversed.

ARGUMENT

L EVIDENCE SUFFICIENT TO CREATE A TRIABLE ISSUE OF FACT INDICATES THAT PLAINTIFF VERA L. NUNES WAS AND IS A QUALIFIED INDIVIDUAL WITH A DISABILITY.

Ms. Nunes is an individual with disabilities, including a seizure disorder.

See Reynolh v. Brock, 815 F.2d 571,573 (9th Cir. 1987) (seizure disorder of

epilepsy is a handicap); Mmtolete v. Bolger, 767 F.2d 1416, 1421-23 (9th Cir.

1985) (same); E.R. 21. She is also qualified to perform the job of cashier for

defendant Wal-Mart Stores, with accommodation, and is thereby entitled to the

protections of the Americans with Disabilities Act (ADA).

A. The Trial Court Failed to Properly Analyze Ms. Nun-’ Claims of Disability-Based Discrimination.

The ADA sets out a detaded fiamework for analyzing claims of disability-

based discrimination. The fiamework is as follows: First, there is the question


of whether the disabled employee is “qualified.” A “qualified individual” is one

who, with or without reasonable accommodation, can perform the job. 42

U.S.C. 6 121 1 l(8) In other words, whether an individual is “qualified” under

the Act includes the question of whether an accommodation may enable the

employee to perform the essential functions of the position.6 Congress’ inclusion

of the right to reasonable accommodation is the cornerstone of the Act’s attempt

to assist individuals like plahtZFNunes - those whose disabilities may impede,

though not M y foreclose, their ability to work.7 In this case, the reasonable

accommodation was the leave of absence itself.

See, e.g., Voytek v. Regents of the Univ. of Cal., No. C-92-3465-m, 1994 U.S. Dist. LEXIS 12453,5 h e r . Disabilities Cas. (BNA) 1255,5 N.D.L.R. 7 343 (N.D. Cal. Aug. 25,1994)’ af fd , 77 F.3d 491 (9th Cir. 1996), cert. denied, 117 S. Ct. 172 (U.S. 1996) (“the next step in the ‘otherwise qualified’ inquiry is for the court to evaluate . . . whether the employer could reasonably accommodate the employee . . .. [Tlhe Court must consider whether reasonable accommodation could have been made . . . to aid Mr. Voytek in performing these essential functions.”); Reynolds v. Dole, No. C-94-7012-VW (JSB), 1990 U.S. Dist. LEXIS 10259, at *67 n.7, 57 Fair Empl. hac. Cas. (BNA) 1848 (N.D. Cal. Aug. 1, 1990) (“the definition of a qualified handicapped person encompasses an individual who can perform a job’s function with reasonable accommodation”); Wal-Mart Stores Matrix of Essential Job Functions, E.R. 196 (“To be considered qualified for a particular position, an individual with a disability must be able to perform the essential functions either unaided or with the assistance of a reasonable accommodation.”).

types of reasonable accommodations for individuals with various types of disabilities is essential to accomplishing the critical goal of this legislation - to allow individuals with disabilities to be part of the economic mainstream of our society.” House Comm. on Education and Labor, H.R. Rep. No. 4 8 5 0 , lOlst

As the ADA’s legislative history emphasizes, “the provision of various


The second question is whether the employer discriminated against the

“qualified individual.” Under the Act, it is unlawfbl to deny reasonable

accommodation to a qualified employee, or to terminate her on the basis of her

disability and need for accommodation. 42 U.S.C. 6 121 12(a), @)(5). Here,

plaintifF alleges that she was denied accommodation and terminated on the basis .

of her disability and need for accommodation. [E.R. 268,269.1

The exception to this provision is where the employer can show that the

accommodation - in this case the leave of absence - imposed an “undue

hardship.” 42 U.S.C. 6 121 12(a), @)(5). Central to this third question is

whether the accommodation requires sigdicant dEcUlty or expense. Ransom

v. Ariz. Bd of Regents, No. CIV 95-821 TUC-ACM, 1997 U.S. Dist. LEXIS

20080, at * 18 (D. Ariz. Oct. 22, 1997), quoting United States v. City and County

of Denver, 943 F. Supp. 1304, 131 1 (D. Colo. 1996). In this case, Wal-Mart’s

express personnel policies permitted unpaid medical leaves of absence of up to

one year in length for employees with and without disabilities; however, this

option was not afforded the plainfl.

Cong., 2d Sess., reprinted in 1990 U.S. Code Cong. and Admin. News 303,310 (1990), page 34; Senate Comm. on Labor and Human Resources, S . Rep. No. 116, lOlst Cong., 1st Sess. (1989), page 10.


In granting defendants’ motion for summary judgment, the trial court

failed to follow the carell fimework set out by the ADA. By focusing on

whether Nunes was “able to perform the essential functions of her job on the

date of her termination,” E.R. 18, the court omitted reasonable accommodation

f?om its analysis of whether Ms. Nunes was qualified under the Act.

B. By Failing to Recognize an Unpaid Leave of Absence as a Reasonable Accommodation, the District Court Erred in Its Determination That Appellant Nunes Was Not “Otherwise Qualified.”

An unpaid leave of absence for treatment or recovery may be a reasonable

accommodation. See EEOC Notice No. 915.002, Enforcement Guidance on the

Americans with Disabilities Act and Psychiatric Disabilities (Mar. 25,1997), p.

24, question 24 (leave of absence may be reasonable accommodation); EEOC, A

Technical Assistance M a n d on the Employment Provisions (Title I) of the

Americans with Disabilities Act, 6 3.5 (Jan. 1992) (“Accommodations may

include . . . pennitting use of accrued paid leave or unpaid leave for necessary

Norris v. Allied-Sysco FoodServ., Inc., 948 F. Supp. 1418, 1438

(N.D. Cal. 1996) (same); Schmidt v. Safeway, 864 F. Supp. 991,996-97 @. Or.

8 It is well settled that “considerable weight should be accorded to an executive department’s construction of a statutory scheme it is entrusted to administer.” Chevron, U.S.A. v. Nat’l Resources Defense Council, 467 US. 837,844 (1984).


1994) (granting summary judgment in favor of the plaintiff on the issue of

whether his leave to seek rehabilitation for alcohol problem was a reasonable

accommodation); see also Buckingham v. United States, 998 F.2d 735, 740 (9th

Cir. 1993) (this Circuit has “approved of or recommended a wide range of

strategies for the reasonable accommodation of handicapped employees”) (citing

Lucero v. Hart, 915 F.2d 1367 (9th Cir. 1990)). Indeed, where an employee had

an alcohol problem that was evident at work, a “leave of absence to undergo

treatment was an obvious accommodation” Schmidt, 864 F. Supp. at 997

(emphasis added).

The court erred in its ruling that Nunes could not assert that she is

“otherwise qualified” because she was not able to perform the essential functions

of her position on the day she was terminated. [E.R. 18. J Ms. Nunes was

qualified, with the accommodation of an unpaid medical leave. The trial court’s

reasoning defeats the very purpose of such a leave.

C. Ms. Nunes’ Successful Work History Demonstrates Her AbiIity to Perform the Job of Cashier at Wal-Mart.

On October 10, 1994, approximately one year after she began her

employment with Wal-Mart, Ms. Nunes received an “above standard”

employment evaluation, the highest rating avadable. E.R. 117-1 19.1 As in

Nisperos v. Buck, 720 F. Supp. 1424 (N.D. Cal. 1989), plainWs “favorable


performance evaluation demonstrates that [she] was quaMed to perform the

activities which [her] position . . . demanded.” Id at 1428. Ms. Nunes received

high praise for her performance, and was a competent and devoted employee.

[E.R. 24-30, 116-1 19.1

Furthennore, shortly after her termination fi-om Wal-Mart, Ms. Nunes

obtained a similar employment position, as a cashier at McDonalds. She re-

in that position to the present. [E.R. 145.1 This subsequent employment history

M e r demonstrates Ms. Nunes’ status as a “qualified indviduai with a

disability.”

D. Plaintiffs Leave of Absence Did Not Pose an Undue Hardship Upon Wal-Mart, and Was In Fact Expressly Permitted By Its Personnel Policies.

The failure to make reasonable accommodations to an otherwise qualified

individual with a disability constitutes unlawful discrimination, unless the

employer can demonstrate that the accommodation would impose an undue

hardship. 42 U.S.C. 6 121 12(5)(A). “Under the ADA, ‘undue hardship’ is ‘an

action requiring s i d c a n t difficulty or expense. ”’ Ransom, supra. at * 18,

quoting United States v. City and County of Denver, 943 F. Supp. 1304, 13 11

@. Colo. 1996). Whether an accommodation would cause undue hardship is

determined after considering a number of statutory and regulatory factors,

includmg the nature and cost of the accommodation needed, the financial


6

resources of the covered entity, the type of operations of the covered entity, md

other factors. 42 U.S.C. 6 121 1 l(lO)(B); 29 C.F.R. 6 1630.2(p). “‘Undue’

hardship, like ‘reasonable’ accommodation, is a relational term: the costs that

the employer must assume are measured in relation to the benefits of the

accommodation, including societal benefits of reducing dependency and

nonproductivity.” Ransom, supra., at * 1 1, citing Stone v. Mount Vernon, 118

F.3d 92,98-100 (2d Cir. 1997). The record shows that plaintiff‘s leave of

absence did not impose an undue burden on defendant Wal-Mart.

1. Defendant Wal-Mart’s Own Personnel Policies Expresslv Permitted Leaves of Absence of Up to One Year in Length.

‘‘Employers have an afknative obligation to make a reasonable

accommodation for a handicapped employee. . . . [Tlhey cannot deny an

employee alternative employment opportunities reasonably available under the

employer’s exrstingpolicies.” Sch. Bd. of Nassau Cy . v. Arline, 480 US. 273,

288 n.19 (1987) (emphasis added); see also Am. Fed. of Gov ’t Employees, Local

51 v. Baker, 677 F. Supp. 636 (N.D. Cal. 1987) (same); Wood v. County of

Alameda, No. C-94-1557-TEH, 1995 U.S. Dist. LEXIS 17514, at **34-35,5

h e r . Disabilities Cas. (BNA) 173,7 N.D.L.R. 7 254 (question of fact as to

whether reassignment was reasonable accommodation where plainm offered


evidence that department regularly transfers county employees) (motion for

summary judgment denied).

Indeed, ‘’while equality of treatment is the ultimate question in any

discrimination, the ADA is a comprehensive congressional scheme to end

employment discrimination on the basis of disability, and includes the

requirement of reasonable accommodation to level the playing field between

workers with disabilities and workers without.” Ransom, supra. at $9.

Accordingly, this requirement must require “something more” than the employer

provides to all of its employees. Id (violation of ADA where defendants

required disabled employees seeking transfers as reasonable accommodation to

compete with all other applicants) (summary judgment for plaint@; see also

City and County of Denver, 943 F. Supp. at 13 10 (“Ifreassignment is only

required where a reassignment policy already exists for all employees, there

would be no need for the ADA to provide that it be available for people with

disabilities.”).

In this case, Ms. Nunes was only seeking an option avadable under Wal-

Mart’s own personnel policies; she sought nothing “more.” Wal-Mart’s

The defendants noted that whether a leave of absence were extended up &a one year by the company, or was terminated prior to one year, was in the discretion of the store manager, apparently arguing that Ms. Nunes was therefore not entitled to a full year. [See E.R. 104. J Such discretion, assuming it to be the


policies expressly permit leaves of absence of up to one year in length. Under

these policies, acknowledged by the defendants to be in effect at the time of Ms.

Nunes’ employment, E.R. 92, 104, the leave of absence Ms. Nunes required for

treatment and recovery was reasonably available.

2. Plaintiffs Leave of Absence Did Not Impose an Undue Burden Because the Evidence Shows that Wal-Mart Was Able to Ensure Adequate Holiday Coverage throunh Temporarv Emplovees.

An employer must present “credible evidence” to support an undue

hardship defense. Reynolds v. Dole, No. C-94-7012-VW (JSB), 1990 U.S. Dist.

LEXIS 10259, at Y1,57 Fair Empl. Prac. Cas. (BNA) 1848 (N.D. Cal. Aug. 1,

1990). Defendants’ argument that they were approaching the holidays, were “in

the process of hiring a full contingency of employees for the holiday season,” and

“Nunes’ position needed to be Nled,” C.R. No. 31, p. 7, is not credible. There

is no evidence in the record to indicate that Ms. Nunes’ leave of absence

somehow prevented Wal-Mart, one of the largest retail chains in the world, from

hiring temporary staff to ensure adequate holiday coverage for its Ukiah store.

Temporary workers are regularly used by Wal-Mart to fblf3.I staffing needs.

[E.R. 175.1 According to the defendants’ own verified interrogatories, “[alt the

case, certainly cannot be exercised in a manner to deny reasonable accommodation to or to otherwise discriminate against qualified individuals with disabdities.


Ukiah Wal-Mart, ‘seasonal’ or ‘holiday’ workers are hired each year to

accommodate the increase in patronage during the holiday season.” [E.R. 238.1

Ms. Nunes was a cashier for Wal-Mart Stores, Inc. Her position required

110 special skills or training, and consisted of duties which can be performed by a

significant number of individuals in the labor pool. Holiday coverage through

temporary staffbg was no undue hardship, but a simple task for a sophisticated

d e r .

IL THE EVIDENCE BEFORE THE DISTRICT COURT WAS INSUFFICIENT TO SHOW THAT PLAINTIFF NUNES POSED A DIRECT THREAT TO HERSELF OR OTHERS BECAUSE OF HER FAINTING SPELLS.

The ADA provides that it may be a defense to a claim of employment

discrimination for the employer to apply “a requirement that an individual shall

not pose a direct threat to the health or safety of other individuals in the

workplace.” 42 U.S. C. 6 12113(b). The term “direct threat” is defined in the

statute as “a significant risk to the health or safety of others that cannot be

eliminated by reasonable accommodation. ” 42 U.S.C. $121 1 l(3); see also 29

C.F.R. $ 1630.2(r) (direct threat “means a significant risk of substantial harm to


I the health or safety of the individual or others that cannot be eliminated or

reduced by reasonable accommodation”). lo

A. Federal Law Requires an Individualized and Objective Inquiry to Support a Determination of Direct Threat.

“The determination that an individual poses a ‘direct threat’ shall be made

on an individualized assessment of the individual’s present ability to safely

perform the essential functions of the job.” 29 C.F.R. 6 1630.2(r). “[TI he

factors to be considered include: (1) The duration of the risk; (2) The nature and

severity of the potential harm; (3) The likelihood that the potential harm will

occur; and (4) The imminence of the potential harm.’’ 29 C.F.R. 6 1630.2(r)

(citing A r l k ) ; see also Arline, 480 U.S. 273 at 287 (1987) (listing factors).

“The assessment shall be based on a reasonable medical judgment that

relies on the most current medical knowledge andor the best available objective

evidence.” 29 C.F.R. 6 1630.2(r); see also Chaui- v. U.S. District Court, 840

F.2d 701,705 (9th Cir. 1988) (“[flindings regarding these factors should be

lo At least one district has ruled that the EEOC’s interpretation of ‘‘direct threat, ” expanding the defense to include harm to self, is “untenable, ” and that “direct threat” applies only to others. Kohnke v. Delta Airlines, 932 F. Supp. 11 10 (N.D. Ill. 1996); see also Devlin v. Ariz. Youth Soccer Assoc., No. CIV- 95-745 TUC ACM, 1996 U.S. Dist. LEXIS 12368 (D. Ark. Feb. 8,1996) ( d e c h g to decide whether defendants may offer “threat to self” defense).


based ‘on reasonable medical judgments given the state of medical knowledge’”).

The inquiry “must rely on objective, factual evidence - not on subjective

perceptions, irrational fears, patronizing attitudes, or stereotypes - about the

nature or effect of a particular disability, or of disability generally.” 29 C.F.R.

Part 1630, App., 0 1630.2(r). “Relevant evidence may include input from the

individual with a disability, the experience of the individual with a disability in

previous similar positions, and the opinions of medical doctors . . .” Id

As the Supreme Court has stated, “[aln individualized inquiry is essential if

the law is to achieve its goal of protecting disabled individuals from

discrimination based on prejudice, stereotypes, or unfounded fear. ” Arline, 480

U.S. at 287 (1987); see also Anderson v. Little League Baseball, 794 F. Supp.

342 @. Ark. 1992). A heightened inquiry is essential to prevent discrimination

against individuals with certain disabilities historically associated with fear and

stigma, including epilepsy, seizure disorders, H I V / A I D S , and mental health

conditions. “A review of the history of epilepsy provides a salient example that

fear, rather than the handicap itself, is the major impetus for discrimination

against persons with epilepsy.” Arline, 480 U.S. at 286 11.13.”

l 1

grand mal, convulsive seizures often associated with the tenns “seifllre” or “epilepsy.” F.R. 27.1 The term “epilepsy” may also be used as a descriptive

Ms. Nunes does not have a neurological condition, and has never had the


B. InTe mhating Ms. Nunes, Wal-Mart Stores Relied on a Store Manager’s Unsubstantiated and Subjective Assumptions.

A determination of direct threat “cannot be based merely on an employer’s

subjective evaluation . . ..” Mmolete v. Bolger, 767 F.2d 1416, 1422 (9th Cir.

1985). In this case, as in Anderson, 794 F. Supp. 342 @. Ariz. 1992), “[tlhere

is no indication in the pleadings [or] affidavits presented by the parties that

defendants conducted an individualized assessment and determined plaintiff poses

a direct threat to the health and safety of others. In fact, there is no indication

that defendants undertook any type of inquiry to ascertain ‘the nature, duration

and severity of the risk’ posed by plaintiff; ‘the probability that the potential

injury will actually occur;’ or ‘whether reasonable modifications . . . will mitigate

the risk’ allegedly posed by plaintiff.” Id at 345.

Instead, the record shows that store manager Mike Black did not base his

decision to tenninate Ms. Nunes on any objective medical evidence. Neither

Black nor anyone on his behalf ever spoke to any of Ms. Nunes’ health care

~~

term to include any disorder in which the individual experiences brief attacks of altered consciousness, motor activity, or sensory phenomena. Janson v. Food Circus Supermarkets, 110 N.J. 363,368,541 A.2d 682,684 (1987). “The term ‘epilepsy’ itself evokes stereotypical fears that perpetuate discrimination against its victims in all aspects of life, including employment.” Id “The unemployment rate among fully employable epileptics is more than two times the national average. The underemployment rate for epileptics is perhaps higher still.” R e p ~ h V. Brock, 815 F.2d 571,547 (9th Cir. 1987).


1 .- providers. Further, Mr. Black apparently did not closely review the medical

documents provided by Ms. Nunes, but merely looked briefly at her file:

Q. Did you ever instruct anyone to talk to Vera’s doctor or one of Vera’s doctors, any of Vera’s doctors, about whether or not she was going to be able to come back to work?

Did you ever personally talk to one of Vera’s doctors? A. No, Ididnot. Q. A. No, I did not. . . . Q.

A.

Have you sought medical advice about Vera’s condition that leads you to that conclusion [that she’s an “endangerment to herself’l? Just the notes that - you know, when I got no exact return date, everythrng kept getting extended. And I would like to clanfjl on the notes. I did not see every personal note on there. I don’t know if that’s what you got out of what I said earlier, but I have not seen these notes; just the pile.

[E.R. 111,114.1

The record further indicates that Mr. Black decided to terminate Ms.

Nunes on the basis of his own stereotyped ideas. “She’s an endangerment to

herself,” Mr. Black stated in deposition. [E.R. 114.1 Mr. Black further

concluded, with no basis in any objective medical evidence, that Ms. Nunes

would never recover or return to work.

A. We had to look at her specific case, because we didn’t know whether she was or was not coming back. Obviously she was not.

[E.R. 103 (emphasis added).]


6

. .

Q.

A.

Q.

A.

[E-R

Q.

A. Q. A. Q* A.

[E.R.

Were you concerned at the time you made the decision to te- her that she just basically wasn’t going to be able to come back? That’s what I was gathering at the time, yes, the doctor’s continued notes that I was hearing about coming in, that she was not coming back. From what you could tell, her sickness was just going on and on. IS that right? It was ~oing. on and on. Exactlv.

110 (emphasis added).]

Sounds like you felt you didn’t have any choice but to terminate her at that point. I iust felt she was not going to be better. You didn’t think she was going to be able to come back to work? I did not think she was going. to be able to. Just too sick with whatever it was. Is that right? Yes.

112 (emphasis added).]

As a result of M i Black’s subjective conclusion that Ms. Nunes would

not recover, plaintif€ was terminated prematurely, and thereby denied the benefit

of her leave of absence as a reasonable accommodation under the ADA, and as

an option under Wal-Mart’s own policies, which expressly pennits such leaves

to extend as long as one year. By accepting this layperson’s subjective

conclusion, the district court erred.

C. Ms. Nunes’ Fainting Spells at Work, Prior to Her Treatment and Recovery, Do Not Justify a Summary Determination of Direct Threat.

In support of its hd ing of “direct threat,” the district court noted that Ms.

Nunes experienced several fainting spells at work. [E.R. at 19.1 In fact, it is true


- that Ms. Nunes experienced five episodes at work. During the last such episode,

Ms. Nunes fell on the ground, her glasses cut her eyebrow, and she required

stitches. [E.R. 25.1 She was discharged from the emergency room the same

day. E.R.202.1

While these episodes did occur, whatever their magnitude, the defendants

cannot base their direct threat defense upon plaintiffs condition prior to

I remrz t . The plain language of the statute specifies that direct threat is a risk

“that cannot be eliminated by reasonable accommodation.” 42 U.S.C.

§12111(3). On March 3, 1995, the same day as her injury, Ms. Nunes began an

unpaid leave of absence in order to seek out the treatment she needed to recover,

and to stabilize and control her condition with medication, breathing exercises,

and other therapies.

An employer may not terminate if the purportedly disqualifying condition

can be controlled with reasonable accommodation. In Schmidt, 846 F. Supp. 991

(D. Or. 1994), a district court in this Circuit refused to dismiss ADA claim8

brought by a driver with alcoholism who sought a leave of absence for treatment:

The employer would have to first give the employee a reasonable opportunity to obtain treatment for the condition before terminating him. A comparable situation would be a driver who develops high blood pressure that can be controlled with medication. The employer cannot terminate the employee because he is temporarily unqualified if that condition can be alleviated through reasonable accommodation.

Appellant’s Opening Brief Page 3 1

t

Id at 998. Accordingly, any assessment of whether the plaintiff posed a “direct

threat” must be evaluated Mer the effects of any treatment received while on

leave. I d at999.

In fact, Ms. Nunes’ condition did improve while on leave, to the point &

she has not had a seizure since December of 1995, and she is able to successfully

work at McDonalds doing cashiering work. [E.R. 145.1

D. The Risk of Future Harm Was Highly Speculative.

This Circuit has cautioned that “[alny qualification based on the r ; k 0:

future injury must be examined with special care if the Rehabilitation Act is not to

be circumvented easily, since almost all handicapped persons are at greater risk

from work-related injuries. ” Bentivegna v. U. S. Dep ’t of M o r , 694 F.2d 619,

622 (9th Cir. 1992) (risk of infection and poor healing insufficient to disqualify

diabetic with high blood sugar). The EEOC also notes that a “slightly increased

risk” is not enough. “The risk can only be considered when it poses a significant

risk, i.e., high probability, of substantial harm; a speculative or remote risk is

insufficent. 29 C.F.R. Pt. 1630, App., 1630.2(r).


In this case, the medical evidence cited by the defendants and the district

court to support the "direct threat" defense brings speculation to new levels. In a

deposition taken almost two years after Ms. Nunes' termination, treating

physician Dr. John Walker testified about a hypothetical period of time between

October 26 and November 13, 1995 during which Ms. Nunes may or may not

have w two seizures:12

A. Q* A. Q- A. Q.

\

A.

Q. A.

A. Q.

If you knew on October 26th that she was going to have two seizures between the 26th and the 13% would you have said she could go back to work? Yes. Even though she could have a seizure that could cause injury to herselfl Yes. And even though it would be a seizure that might cause injury to others? It was extremely unlikely being the work that she did. How did you h o w the work that she did, whether it would effect others? She described to me the work that she did at Wal-Mart, stocking shelves occasionally, I believe. Running a register. - - She could hurt herself if she were carrying something heaw above her head and fainted, correct? That's correct. She could drop that on someone else and hurt them, too, correct? That's Dossible. Possible Yes. Verv unlikelv. But Dossible.

l2 The record only shows that there was a period of time starting as early as November 1995 and ending December 9, 1995, during which Ms. Nunes had 1 to 3 episodes, including the last one she ever had on December 9, 1995. F.R. 45-48 .]


P.R. 255-256.1

h other words, the risk during this nebulous period, in the days before her last

episode, is that Ms. Nunes might have a seizure while c@g something heavy

over her head and then drop this heavy object on herself or another. No

evidence in the record shows that Ms. Nunes (or any other cashier at Wal-Mart)

was required to or ever did cany heavy objects over her head. Any such

requirement could easily be modified to alleviate this risk.13 However, reasonable

accommodation - whether a leave of absence or a lifting restriction - was never

considered by the district court in weighmg defendant’s direct threat defense.

Courts have rejected such speculative hypotheticals as the basis for a

“direct threat” defense. In Onishea v. Hopper, 126 F.3d 1323 (11th Cir. 1997),

prisoners with HIV challenged their exclusion from various prison programs. In

reversing the district court’s s u ~ l l ~ ~ ~ a r y ruling that the prisoners were

“unqualified,” the appellate court rejected several “fanciful hypotheticals”

“Even for employees who do pose a direct threat, an employer must make reasonable accommodation.” 42 U.S.C. 6 121 13(a). The ADA defines ‘reasonable accommodation’ to include restructuring a job, such as by removing non-essential functions from the job.” E.E.O.C. v. AIC Sec. Investigations, Ltd, 55 F.3d 1276, 1284 (7th Cir. 1995). There is evidence that Ms. Nunes had a 15- pound lifting restriction. P.R. 148, 199.1 Such a n accommodation would presumably eliminate the heavy-object-over-the-head-whiie-having-a-seizure risk.

13


constructed by the district ~ 0 u r t . l ~ Chastizing the district court for its

“willingness to hypothesize,” the Eleventh Circuit held that “the district court

erroneously required appellants to disprove all conceivable (and even fanciful)

risks of transmission, and that this ruling requires remand for application of the

proper standard.” Id at 1334.

Here, too, the defendants’ evidence of direct threat was highly speculative,

and consisted of the following “Imiikely coincidence of possibilities” : (1) that

Ms. Nunes might be holding a heavy object over her head - despite an absence

of evidence that lifting heavy objects above her head was among her habits or job

duties; (2) that Ms. Nunes might have, concurrently, a fainting spell; (3) that Ms.

N u n s might thereby drop the heavy object; and (4) that the heavy object might

then drop on Ms. Nunes or - assuming someone was standing near Ms. Nun=

during this heavy object lifting period - on another person. As in Onisha, “[i]t

is exactly this kind of speculation” that the law prohibits. Id

l4 In one ‘‘unlikely coincidence of possibilities,” the district court had hypothesized that transmission of HIV might occur as follows: (1) an automobile accident wounds an HIV-positive inmate and a guard, drawing blood; (2) the guard is incapacitated; and (3) the HIV-positive inmate “with contempt for that officer” might attempt transmission. Onishea v. Hopper, 126 F.3d 1323, 1334 (IlthCir. 1997).


2. Relativelv W r Nature of the PO- We- irect Threat Defense.

In evaluating a direct threat defense, the “nature and severity of the

potential harm” is an important factor. 29 C.F.R. 0 1630.2(r); A r b , 480 U.S.

at 273. “The Mure to distinguish between the risk of a fbture seizure and that

of future injury is crucial. The assumption that every epileptic who suffers a

seizure is a danger to himself or others reflects the prejudice that the Law seeks

to prevent.” Jansen, 110 N.J. 363,377,541 A.2d 682, 689 (N.J. 1987).

This is not a case in which the plaintiff was required to operate dangmus

equipment or to drive a vehi~le.’~ Ms. Nunes was not responsible for

safeguarding the public or for administering critical health care to third par tie^.'^

lS See Rizzo v. Children’s World Leaming Center, 84 F.3d 758 (5th Cir. 1996) (teacher’s aid with hearing impairment responsible for driving children did not pose direct threat); Sarsycki v. United Parcel Service, 862 F. Supp. 336 (W.D. Okla. 1994) (driver with controlled, insulindependent diabetes did not pose direct threat); E.E. 0. C. v. Texas Bus Lines, 923 F. Supp. 965 (S.D. Tex. 1996) (obese applicant seeking position as van driver did not pose direct threat) (summary judgment granted plaintiff); Daugheny v. City of El Paso, 56 F.3d 695 (5th Cir. 1995) (bus driver with insulindependent diabetes posed direct threat); Zhrco v. Hoechst Celanese Corp., 101 F.3d 1090 (5th Cir. 1990) (diabetic operator required to work with complicated machinery and dangerous chemicals posed direct threat).

See champ v. Maryland, 884 F. Supp. 991,999 @. Md. 1995) (police officer without use of one arm posed direct threat where he was unable to drive under emergency circumstances, shoot firearm with two hands, or make forcible arrest); E.E.O.C. v. Amego, 110 F.3d 135, 144-46 (1st Cir. 1997) (therapist who


The potential medical effects of falling to the ground from a standing position, in

an environment free from heavy machinery, are relatively min0r.l’ Compare,

e.g., Moses v. Am. Nonwovens, 97 F.3d 446 (11th Cir. 1996) (product inspector

with epilepsy working near fast-moving press rollers and exposed, 350”

machinery posed direct threat to self where no accommodation to eliminatP.

hazards possible); Jansen, 110 N.J. 363,541 A.2d 682 (N.J. 1987) (question of

fact as to whether meat cutter with epilepsy posed direct threat). No court bas

ever held that fainting on the job in a non-industrial setting is so dangerous that it

poses a direct threat under the ADA.”

mishandled medications posed direct threat to clients where potential harm of administering wrong medication is obvious and extreme); see also AIC Sec. Investigations, Ltd, 55 F.3d 1276 (7th Cir. 1995) (upholding jury’s verdict in favor of security guard with brain cancer where defendants argued direct threat).

l7

comment. According to the defendants, “Nunes suffered severe lacerations to her le3 eye.” [C.R., No. 31, p. 4.1 In fact, Ms. Nunes eyebrow was cut, requiring stitches. The evidence cited by the defendants to support its version is explicit in describing Ms. Nunes’s cut eyebrow. [E.R. 201 .]

The defendants’ characterization of the March 3, 1995 incident bears

l8 The Fourth Circuit’s decision in MartinSon v. Kinney Shoe C o p , 104 F.3d 683 (4th Cir. 1997), does not counsel a different result. In that case, the court found that providing store security was an “essential function” of the plaintiff’s position, and that because the plaintiff was unable to ensure store security during his seizure episodes, which lasted five to ten minutes, he was no, quahfied for the position. Id at 687. The appellate court emphasized the narrow nature of its ruling: “Martinson may well be qualified for a range of other jobs, including iobs in retail sales, so long as store security did not depend exclusively


111. EVIDENCE IN THE RECORD INDICATES THAT THE

JUSTIFY PLAINTIFF’S TERMINATION ARE PRETEXTUa REMAINING REASONS OFFERED BY THE DEFENDANTS TO

“If a plaintiff succeeds in raising a genuine issue regarding the authenticity

of the employer’s stated motive, summary judgment is inappropriate, because it

is for the trier of fact to decide which story is to be believed.” Washington v.

Garrett, 10 F.3d 1421,1433 (9th Cir. 1993). In this case, the defendants have

offered several pretextual justifkations for terminating Ms. Nunes. However, the

evidence shows that these reasons were not the basis for Ms. Nunes’

termination. In fact, direct evidence shows that discrimination motivated Wal-

Mart’s actions. Where the plainmhas created a genuine factual issue as to the

employer’s discriminatory intent, summary judgment should be reversed. Lam,

40 F.3d 1551, 1559 (9th Cir. 1994), citing Wallis v. J.R Simplot Co., 26 F.3d

885,892 (9th Cir. 1994).

1. The Plaintiff Was Not in Fact Terminated Because She Failed to Submit a Particular Wal-Mart Form.

In the proceedings below, the defendants argued that the last Wal-Mart

“Leave of Absence” form submitted by Ms. Nunes was on June 13, 1995, and

was therefore out-of-date at the time of her termination. According to the

~

upon Martinson’s vigilence.” Id (emphasis added). There is no evidence in this record that Wal-Mart’s store security depended upon Ms. Nunes.


t

defendants, Ms. Nunes was not f5ed because of her disability, but because of her

failure to submit a current Wal-Mart “Leave of Absence” form. [E.R. 244.1

In fact, the record shows that the material information requested by this

particular fonn was included in subsequent and up-to-date medical

documentation submitted by Ms. Nunes, and accepted by Wal-Mart without

objection. The record further shows that Ms. Nunes was not required to submit

the “Leave of Absence” form during her 1994 leave of absence nor thoughout

her 1995 leave, and that medical documentation containing the relevant

information was suEcient until her termination. [E.R. 25, 120-125.]1g

Specrfically, on June 12,1995, Nunes submitted a doctor’s note indicating

that her leave would extend three more weeks. F.R. 125.1 Ms. Nunes

submitted this note in person to personnel manager Rita Silva, who &d not

l9 The defendants’ reliance upon doctor’s notes containing the material information is consistent with Wal-Mart publications. In the Benefits Book, Wal-Mart provides the following instruction: “All requests for Medical Leave of Absence are to be accompanied by a doctor’s statement giving the nature of the medical condition, when you should be off work and an anticipated date as to when you could be expected to return to work.” [E.R. 186.1 The California Associates Handbook states: “All medical leaves require a medical note from the treating physician or other licensed health care practitioner which states that the associate is disabled and unable to perform a spec& job or unable to return to work” [E.R. 168.1 Ms. Nunes’ medical documents, whether or not contained on a particular Wal-Mart form labelled “Leave of Absence,” complied with these requirements.


object to the form of the documentation. F.R. 26-27.] “Silva never told Dunes

that she] needed to use a Wal-Mart form to extend [her] leave.” E.R. 27.1

A subsequent note extended Ms. Nunes’ leave to August 14,1995. P.R. 1

204.1 Further, on or about August 1,1995, well before the expiration of this

doctor’s note, Ms. Nunes submitted a doctor’s certification indicating a

December 1, 1995 return-to-work date. [E.R. 27,205.1 The subsequent pieces

of documentation were accepted without objection. In fact, the December 1,

1995 date included on the medical documentation accepted by Wal-Mart was an

accurate estimate. E.R. 27-29,3 1-37,4445, 145, 150.1 Prior to plaintiff‘s

termination, the defendants had access to and reviewed the medical

documentation indicating the December return date prior to plainWs

termination. F.R. 102-104, C.R. No. 31,pp. 7, 12.1

Plaintiff‘s medlcal documentation was current, contained the material

information requested by Wal-Mart’s “Leave of Absence” form, indicated an

accurate return-to-work date, and was accepted by defendant Wal-Mart without

objection. This constitutes sufficient evidence to create a triable issue of

material fact that plaintifE‘s failure to submit a particular form was not the true

reason for her termination, but was pretext.


2. The Plaintiff Was Not in Fact Terminated Because She Could Not Be Reached by the Defendants.

In the proceedings below, the defendants also argued that they terminated

Ms. Nunes because she failed to provide them with her new telephone number.

The record shows that this was not the true reason for terminating plainm. After

personnel manager Rita Silva was unable to reach plaintiff using the old number,

but before the defendants decided to terminate, Ms. Silva also tried the number

for Ms. Nunes’ mother, and in fact reached Ms. Nunes’ mother. [E.R. 56.1 Ms.

Nunes’ mother told Silva that Ms. Nunes was in the hospital. [E.R. 53.1

However, Silva did not ask any of the following questions: What is Ms. Nunes’

current phone number? Which hospital is Ms. Nunes at? What is the phone

number of the hospital? When is Ms. Nunes expected to check out of the

hospital? What is the number for Ms. Nunes’ doctor? Had she asked any of

these questions, Silva could have spoken with Ms. Nunes within minutes or a

couple of days; Ms. Nunes checked out of the hospital on October 26,1995.

Further, although there was no immediate need to change Ms. Nunes

employment status, the defendants never sent Ms. Nunes a letter instructing her

to contact them. [E.R. 64-68.I2O Sending such a letter to employees on leave

2o

sent to her prior address. [E.R. 27.1 Ms. Nunes had arranged to have her mail forwarded, and received all mad


i

was Wal-Mart Stores policy. [E.R. 61-63.] Similarly, the defendants faded to

take advantage of Ms. Nunes’ frequent visits to Wal-Mart to make any

inquiries2’ - there is evidence that plaintif€ visited the store three times in

October 1995, and twice during the first half of November 1995. [E.R. 27-29.]

That defendants could have reached Ms. Nunes, but did not, creates a triable

issue of fact as to whether the defendants terminated her because she “could not

be located,” or whether this is pretext for unlawful discrimination.

3. The Record Shows That the Defendants Terminated Ms. Nunes on the Basis of Her Disability and Her Need for Accommodation.

This Circuit has held that evidence of impermissible bias on the part of

those participating in the decisionmaking process precludes summary judgment.

21

documentation was current and accurate. The need to hire temporary employees to ensure adequate holiday staf€ing was not impeded by Ms. Nunes’ leave status in late October. Indeed, the defendants admitted that thirteen seasonal employees were hired in November and December of 1995, including seven seasonal cashiers, well after the moments in late October during which Ms. Silva could not reach Nunes by telephone. [E.R. 239.1 Moreover, as Wal-Mart’s own policies explain, even if there were an impediment to holiday coverage, the store could have filled Ms. Nunes’ “spot” for the holidays with a seasonal employee, returning Nunes upon her clearance to that or another cashiering spot left vacant. [E.R. 128, 168.1 This Circuit has reversed summary judgment where the legitimate, nondiscriminatory reason - a reorganization for fiscal reasons - would not result in more efficiency or decreased personnel expenditures. Washington v. Garrett, 10 F.3d 1421 (1994). The employment action in this case was similarly unrelated to the reasons proferred.

It is not clear why immediate contact was required. The medlcal


In Lam v. Univ. of Hawaii, the plaintiff challenged the defendants’ failure to hire

her for a director position, claiming sex and race discrimination. In opposing

summary judgment, the plaint3 offered the deposition of a professor, who

testified that the head of the appointments committee was biased toward women

aflcl Asians. 40 F.3d at 1560. This Circuit reversed the district court’s granting

of summary judgment, holding that the “evidence is, as a matter of law, sufEcient

to preclude the award of summary judgment for defendant.” Id.

The record in this case likewise includes direct evidence that the

defendants terminated Ms. Nunes on the basis of her disability. The “Exit

Interview” form initially filled out by Rita Silva stated “due to health” as the

reason for Ms. Nunes’ termination. Only after Silva consulted with legal counsel

did she change the form to state, “cannot hold position for x-mas season.”

Further, both store manager Mike Black and the Wal-Mart Review Board

expressed a bias against employing Ms. Nunes because of her chronic and

episodic condition. After analyzing Ms. Nunes’s March 3,1995 accident, the

Wal-Mart Review Board stated as follows: “Associate fainted on her way back

to the time clock. Vera is out on an indefinite medical leave. Will not be back

until problem is completely solved. Associate should not be allowed back in

store until condition is permanentlv taken care of.” P.R. 129 (emphasis

added).] Store manager Mike Black similarly testdied, under oath, that the


c

Review Board statement represented his “policy” for individuals out on a ‘‘major

medical” leave, and that “when someone’s out on a leave of absence on that

condition that she had, I would not have let them back untd they were completely

healed.” [E.R. 1 14 .I2 In other words, a “complete solution” to Nunes’ chronic and episodic

condition was a precondition to her return to work. Such a rule on its face

violates the Americans with Disabilities Act, which requires the employment and

accommodation of qualified individuals with disabilities, including individuals

with chronic and episodic disabilities. See EEOC Order 915.002, Compliance

Manual, 6 902, Definition of the Term “Disability” (Mar. 14, 1997), p. 34

(“Chronic conditions that are substantially limiting when active, and conditions

with a high likelhood of recurrence in substantially lirmting forms, . . . are

disabilities.”).

22

requiring a “cure.” In arguing that Ms. Nunes was not able to return to work, counsel noted that Ms. Nunes letter from Dr. Walker “did not rule out the possibility of continued seizures.” [C.R. No. 31, p.8.1 The medical problem “was not finally solved until January of 1996.” [C.R., No. 31, p.8.1 “[Slhe was not finally ‘cured’ untd January of 1996.” [C.R. No. 31, p. 12.1 In deposition, defendants’ counsel queried, “so is it fair to say that in November of ‘95 your blackout problem hadn’t been solved yet?” [E.R. 45.1

The arguments made by defendants’ counsel mirror Wal-Mart’s position


This record casts significant doubt upon the already dubious

“nondiscriminatory” reasons for terminating Ms. Nunes. Because the evidence

shows disability-based discrimination, this Court should reverse the district

court’s granting of summaxy judgment.

IV. NUNES’ APPLICATION FOR AND RECEIPT OF STATE DISABILITY INSURANCE (SDI) BENEFITS IS ENTIRELY CONSISTENT WITH HER CLAIM OF BEING A “QUALIFIED INDIVIDUAL WITH A DISABILITY” UNDER THE ADA.

The district court ruled that because plaintBNunes applied for and

received State Disability Insurance (SDI) benefits, she is “precluded fkom

claiming that she was simultaneously ‘q-ed’ under federal law.” [E.R. 20,

21.1 In fact, the narrow determination of “di~ability’~ made for the purposes of

State Disability Insurance is entirely consistent with being a “qualified”

individual on a reasonable accommodation, unpaid leave of absence.

The Ninth Circuit has never ruled that applying for or receiving State

Disability Insurance (SDI) renders an individual “u.nqualified,” and thereby

entirely unprotected by the ADA. Such a ruling would unecessarily eviscerate

the right to an unpaid leave as an accommodation for those without substantial

independent resources. Penalizing employees with dlsabdities fiom asserting

their right to a reasonable accommodation leave is contrary to the purposes of

the Americans with Disabilities Act.


1 i

A. Being ”Disabled” for Purposes California’s State Disability Insurance Program is Consistent with Being a “Qualified Individual’’ Under the ADA.

California’s SDI program protects individuals against loss of wages when

they are unable to perform their regular jobs due to a physical or mental

condition. Cal. Unemp. Ins. Code 6 2626(a). The statute specifies that for the

purposes of the SDI program, “disability” includes rllness, injury, pregnancy,

childbirth, and rehabilitation for acute alcoholism or drug-induced illness.

Section 2626(b). The nature of SDI “disability” obviously includes temporary

conditions. Accordingly, benefits are limited to one year. Cal. Unemp. Ins.

Code 6 2653.

It is apparent that the structure of this program is designed to include the

provision of temporary wage replacement to employees during employer-

approved leaves of absence; it is nowhere limited to individuals who have

severed their relationships with their employers. To the contrary, the program

has special d e s regarding the calculation of benefits in situations where the

employee continues to receive compensation (e.g. payments from employer-

provided short-term disabrlity insurance) from the employer. Cal. Unempl. Code

6 2656; see also $ 6 1265,2629.

Indeed, sigmficant numbers of individuals who apply for and receive SDI

are nut severing their relationships with their employers, and are instead taking a


1

leave because of a temporary period of incapacity, such as pregnancy, surgery,

or m y number of episodic conditions, and in fact return to their jobs after the end

of their leave. For just this reason, Wal-Mart’s own policies direct its California

employees who are “temporanly disabled due to illness or injury” and want to

h o w more about “financial relief’ to contact the State Disability Insurance

program. F.R. 180.1 See Sumner v. Micheiin N. Am., 966 F. Supp. 1567 (M.D.

Ala. 1997) (that plaintiffs employer encouraged him to apply for retirement

benefits d t a t e s against barring ADA claim).

The fact that Ms. Nunes received SDI during an unpaid, reasonable

accommodation leave does not extinguish her status as a “qualified individual.”

As in Norris v. Allied-Sysco Food Services, Inc. , there is no ‘‘irreconcilable

inconsistency” between the two positions. Norris, 948 F. Supp. 1418 (N.D. Cd.

1996), appealfiled, No. 97-16716 (filed Sept. 5, 1997) (assigned to ADR)

(application for long-tern disabdity insurance benefits not inconsistent with

plainms claim that she subsequently recovered and was qualdied to return to

work); see also Parish v. Consolidated Engineering Lab, No. C 96-4213 MMC,

1997 U.S. Dist. LEXIS 15879 (N.D. Cal. Oct. 6, 1997) (receipt of State

Disability Benefits not inconsistent with claim that health improved while on

leave); Prilliman v. United Air Lines, 53 Cal.App.4th 935 (hlar. 25, 1997)

(receipt of disability benefits does not extinguish failure-to-transfer claim)


\

(summary judgment reversed); Kacher v. Houston Community College System,

974 F. Supp. 615 (S.D. Tex. 1997) (receipt of insurance benefits during period of

incapacity not inconsistent with subsequent ability to work).

B. The District Court’s Reliance on This Court’s Ruling in Kennedy v. Applause Was in Error.

In a0irmmg summary judgment in Kennedy v. Applause, 90 F.3d 1477,

1481 (9th Cir. 1996), this Circuit caremy considered the entire record,

including plaintiff‘s representations of being completely disabled for a l l work-

related purposes in her applications for Social Security Administration (SSA)

benefits, and her doctor’s deposition testimony of her total disability. In finding

no genuine issue of material fact, this Circuit cautioned that it was not applying

judicial estoppel. Kennedy, 90 F.3d 1477, 1481 n.3 (9th Cir. 1996).

In relying upon Kennedy, 90 F.3d 1477 (9th Cir. 1996), the trial court

failed to carefully examine the record of case. Speclfically, the hstnct court

failed to recognize key distinctions between representations made to California’s

Empioyment Development Department (EDD) for the purposes of State

Disability Insurance (SDI), and representations that would be made to the Social

Security Administration (SSA) and other entities administering disability-based

benefits. The piaintdFin Kennedy had filed for benefits fiom the Social Security


Administration, as well as fiom the EDD. The plaintiff in this case filed oni’y for

State Disability Insurance; she never filed for Social Security benefits.

1. State Disability Insurance is Distinct From Social Security.

The federal Social Security Adrmnistration, through the Social Security

Disability Insurance (SSDI) and Supplemental Security Income (SSI) programs,

provides disability payments to individuals who are unable “to engage in any

substantial gainful activity by reason of any medically detenninable physical or

mental impairment which. . . can be expected to last for a continuous period of

not less than 12 months.” See 42 U.S.C. 6 416(i). Under the SSDI and SSI

programs, an individual seeking benefits must show not only an inability to

perform his or her previous work, but also an inability “considering his age,

education and work experience, [to] engage in any other kind of substantial

gainful work which exists in the national economy.” 42 U.S.C. 6 1382(a)(3)(B).

California’s SDI program is entirely distinct from the disability programs

administered by the Social Security Anmlnistration. SDI is an employee-fhded

program that provides temporary wage replacement, up to one year, to

individuals who are, because of a physical or mental condition, “unable to

perform [their] regular or customary work.” Cal. Unemp. Ins. Code $6 2601,

2626,2653. No case in this Circuit has ever held that simply applying for State

Disability Insurance (or an equivalent short-tern disabdity benefit) estops a


plainttfRkom pursuing a claim of discrimination under the Americans with

Disabilities Act. Cf: Fredenburg v. Contra Costa Cty, No. C-96-3 136-vRw

(N.D. Cal. Apr. 18, 1997), appealfiled, No. 97-15885 (May 16, 1997,gth ck.);

Hunt v. Longs Drug Stores, No. C-94-4 1 16-CAL (N.D. Cal. Sept. 10, 19971,

appealflled, No. 97-17003 (Oct. 8, 1997,gth Cir.).

2. A Determination of “Disability” for the Purposes of State DisabiIiW Insurance is Based on Standards that Are Entirelv Distinct From Those Used bv the Social Securitv Administration and Other Long- Term Disability Insurance Plans.

The cases in this Circuit deeming ADA plaintiff. barred by their own

representations made for the purposes of disability benefits base their

conclusions upon the sling for Social Security benefits, or other long-term

benefits with entirely different standards for a determination of disability than

those used by Cahfornia’s Employment Development Department in

adrmrustering SDI. Kennedy, 90 F.3d 1477 (9th Cir. 1996) (plaintrffestopped

where she represented she was “completely disabled for all work-related

purposes” to SSA); Miller v. US. Bancorp., 926 F. Supp. 994 (D. Or. 1996),

appealfized, No. 96-35678 (9th Cir. June 14, 1996) (plaintiff estopped where

she applied for and received benefits fiom SSA and from employer’s long-tern

disabhty insurance requiring “continuous inability to engage in any gainfui


employment for which you are or may become qualified by education, training Or

experience7?. Cases kom other circuits are similarly inapp0site.2~

In Kennedy, this Circuit relied in part on the First Circuit’s decision in I

August v. Ofices Unlimited, Inc., 981 F.2d 576 (1st Cir. 1992). In August, the

plaintSwas found not to be a qualified individual under the ADA where he had

certified that he was totally and continuously disabled. August, 981 F.2d at 579,

581 (summary judgment appropriate where ‘‘the record [was] fatally bereft of

any indication that August possessed the ability to perform his job”).

Subsequently, in D ‘Aprile v. Fleet Services Corp. , 92 F.3d 1 (1 st Cir. 1996), the

First Circuit recognized that its decision in August is not dispositive in all cases

in which an ADA plaintif€ has received any disability-based benefit. Rather,

“August stands for a much narrower proposition” that a plahtB‘s ability to

23 See August v. Ofices Unlimited, Inc., 981 F.2d 576 (1st Cir. 1992) (plaintif€ attested to being “totally and continuously disabled,” defined to mean “unable to engage in any occupation,” or ‘’unable to perform substantially all the material acts of an occupation which €us age, training, experience, and physical condition would suit him for”); McNemar v. n e Disney Stores, Inc., 91 F.3d 610 (3d Cir. 1996) (plaintdTapplied for SSA benefits and loan deferments, c e m g that he was “totally and permanently disabled’); Dush v. Appleton Electric Company, 124 F.3d 957 (8th Cir. 1997) (plainejudged “totally disabled” by worker’s compensation court, and alleged in ADA complaint that defendant’s conduct resulted in her “complete, total and permanent disability).


work, with reasonable accommodation if necessary, is an element of a disability

discrimination claim. Id at 5.

Accordingly, where the definition of “disabled” for the purposes of the

short-term disability policy at issue was relatively narrow, the First Circuit

declined to bar plainWs ADA claims. Id at 4-5.24 Indeed, since the plaintiff‘s

application for disability benefits “sheds no light on how [she] would have fared

if the accommodation had been made,” the determination of “disabled” under the

policy was deemed “entirely consistent7’ with the plahtif€‘s claims of

discrimination and failure to accommodate under the Americans with Disabilities

Act. Id at5.

C. This Circuit’s Ruling in Rketto v. Plumbers and Steamfitters Locd 343 Does Not Require a Different Result.

In Rissetto v. PIumbers and Steamfitters Local 343, 94 F.3d 597 (9th Cir.

1996), this Circuit applied the doctrine ofjudxial estoppel after considering the

impact of a representation of “total disability” upon aprima facie case of age

24

considered by the First Circuit in D ’Aprzle - ‘’unable to perform the material duties of hisher job for the entire regularly scheduled work week as the result of an dlness or injury” - is sirmlficantly more narrow than the definitions used by the SSA as well as most long-tenn disability policies. It is also remarkably analogous to the definition of disability employed by CaMornia’s Employment Development Department in admmistering SDI.

The definition of “disabled” contained in the disability insurance policy


discrimination. As with Kennedy, the determination of “disability” at issue in

Rissetto is entirely distinguishable from the determination at issue in the context

of SDI - the plaintiff claimed a “total disability” and a “total inability to work”

in her application for workers compensation. 94 F.3d at 600,605; compare

Norris v. Allied-Sysco Food Services, 948 F. Supp. at 1146 (distinguishing

Rissetto) .

Moreover, the plaintiff in Rissetto alleged age discrimination - she did not

claim a failure to accommodate or any other form of disability-based

discrimination. Accordingly, the viability of Rissetto’s claims turned on whether

she was ‘‘performing her job in a satisfactory manner,” an element of the prima

facie case for age discrimination. Id at 600, citing Rose v. Wells Fargo & Co.,

902 F.2d 1417 (9th Cir. 1990). This requirement on its face excludes any

reference to reasonable accommodations, such as part-time scheduhg or an

unpaid leave of absence. It is also distinct from the prima facie requirements of

the ADA, for which a plaintdTmust show she is an “otherwise qualified

individual with a disability” - a person who is able to perform the essentd

functions of the job, with or without reasonable accommodation. 42 U.S.C. 6

121 1 l(8). The district court’s reliance on Rissetfo was in error.


D. The Majority of Circuits and the EEOC Have Recognized that Representations Made for the Purposes of Disability Benefits Should Never Not as an Absolute Bar to Claims Under the ADA.

Subsequent to the Ninth Circuit’s d i n g s in Kennedy v. Applause, 90 F.3d I 1477 (9th Cir. 1996) and Rissetto, 94 F.3d 597 (9th Cir. 1996), the Equal

Employment Opportunity Commission issue6 guidance on the effect of

representations made in connection with an application for disability benefits

upon claims under the ADA. EEOC Notice NO. 915.002, Enforcement Guidance

on the Effect of Representations Made in Applications for Benefits on the

Determination of Whether a Person is a “Qualified Individual with a Disability‘’

Under the Americans with Disabilities Act of 1990 (Feb. 12, 1997). The EEOC I is the federal agency charged with enforcing the Americans with Disabilities Act.

“This Court is required to give the EEOC’s interpretation of this issue some

t deference.” Johnson v. Peralta Community College Dist., supra., at * 5 (N.D.

1 Cal. Apr. 28, 1997).

According to the Commission, such representations “are never an absolute

bar to a finding that a person is a ‘qualified individual with a disability’ for

purposes of the ADA.” EEOC Enforcement Guidance (Feb. 12, 1997), 6 II.A.

The Commission has recognized that “an individual should not necessdy be

estopped fiom riling an ADA claim simply because he or she also applied for

disability benefits, because the standard for ‘qualified individual with a


i

disability’ under the ADA is different than the standard for disability used in

1 awarding benefits under many disability benefits programs.” Johnson v. Peralta

Community College Dist., supra., at *5 (N.D. Cal. Apr. 28, 1997) (granting

summary judgment on other grounds).

Citing the EEOC’s recent guidance and reasoning, the majority of circuits

have recognized that a determination of disability by the SSA or another benefits

administration does not bar an ADA claim, precisely because the SSA does not

take into account reasonable accommodation. Blanton v. Inco Alloys Znt ’I, 123

F.3d 916 (6th Cir. 1997) (rejection ofjudicial estoppel and reversal of summary

judgment); Gilhuly v. Consolidated Rail Corp., No. 95-CV-75 17 1-DT, 1997

U.S. Dist. LEXIS 13454, at *23 (E.D. Mich. May 10, 1997) (no judicial estoppel

where employer failed to engage in interactive, reasonable accommodation

process); McCreary v. Libbey-mens-Ford, No. 97-1 57 1, 1997 WL 7766 18 (7th

Cir. Dec. 18, 1997); Weigel v. Target Stores, 122 F.3d 461 (7th Cir. 1997)

(citing ‘‘fimdaxnental merences between the SSA’s definition of disability and

the ADA’s definition of ‘qualified individual with a disability”’); Talavera v.

School B d ofpalm Beach, 129 F.3d 1214,

$19 (1 lth Cir. 1997) (“We agree with the majority of our sister circuits that a

certdication of total disability on an SSD application is not inherently

inconsistent with being a ‘quaEed individual with a disability’ under the


1997 U.S. App. LEXIS 33311, at

ADA”); Swnner, 966 F. Supp. 1567 (M.D. Ala. 1997) (“the simple fact that

Sumner claimed he was disabled under the Social Security Act and p e w e n f l y

and totally disabled under Alabama’s Worker’s Compensation Act is not

necessarily inconsistent with his claim for relief under the ADA”) (granting

summary judgment on other grounds); Whitbeck v. Vital Signs, 116 F.3d 588,

591 @.C. Cir. 1997) (application for benefits did not bar ADA claim where

employer indicated unwillingness to accommodate); Swanks v. Washington Met.

Area Transit Auth., 116 F.3d 582,586 (D.C. Ck. 1997) (Social Security

disability determinations take no account of reasonable accommodation - the

critical ADA issue”); cJ Dush v. Appleton Elec. Co., 124 F.3d 957 (8th Cir.

1997) (summary judgment on record as a whole where state worker’s

compensation considered shorter shifts in determining that plainm was “totally

disabled”); Cleveland v. Policy Management Sys., 120 F.3d 513 (5th Cir. 1997)

(“Thus, a person may be unable to do any work which exists in the national

economy even though he can work with a reasonable accommodation. In those

instances, the person is both a person with a ‘disability’ under the SSA and a

‘qualrfied individual with a disability’ under the ADA.”) (affhmng summary

judgment on the entire record).25

25

(S.D.N.Y. 1996) (criticizing “uncritical application of judicial estoppel”); See also Mohamed v. Marriott Int ’1, Inc., 944 F. Supp. 277,280-84


Even the Third Circuit - the first to apply judicial estoppel against an

ADA plaintif€ on the basis of representations made for the purposes of Social

Security Administration benefits, McNemar v. Disney Stores, 91 F.3d 610 (3d

Cir. 1996), cert. denied 117 S. Ct. 958,136 L. Ed. 2d 845 (1997) - has cited

the new EEOC guidelines and Swanks with approval. In a recent opinion, a

Third Circuit panel conceded that “McNemar has been the object of considerable

criticism. Some of this criticism might be well-founded.” Krouse v. Am.

Sterilizer Co., 126 F.3d 494, - n.3-4 (3rd Cir. 1997) (citing arguments against

judicial estoppel in lengthy footnote, but deciding judicial estoppel not at issue in

retaliation claim, and declining by 2-1 vote to reverse McNemar under the

particular facts); see also Harrison v. Delaware, No. 95-406-SI& 1996 U.S.

Dist E X I S 20541 (D. Del. Dec. 30,1996) (plaintiffnot barred where no bad

faith and application for disability pension filed after employer’s failure to

respond to accommodation request).

As in these recent cases, the disability benefit at issue here take no

account of reasonable accommodation. Being “disabled” for the purposes of

Pressman v. Brigham Medical Group Found. , Inc., 9 19 F. Supp. 5 16 @. Mass. 1996) (genuine issue of fact as to whether “total disability” for the purposes of disability insurance “means that [plains unable to perform the essential functions of the practice of medicine”); Anzalone v. Allstate Ins. Co., 1995 US. Dist. LEXIS 1272 (E.D. La. 1995) (no summary judgment where plaintifFcould


SDI is entirely consistent with being a “ q d e d individual, with or without

reasonable accommodatioq” under the ADA.

E. The Granting of Summary Judgment Against Plaintiff Nunes on the Basis of Her Application for and Receipt of SDI Benefits Undermines the Act’s Purpose of Promoting the Full Integration of Individuals with Disabilities Into the Workplace.

‘The ADA is a sweeping civil rights law designed ‘to provide a clear and

comprehensive national mandate for the elimination of discrimination against

individuals with disabilities.”’ EEOC Enforcement Guidance (Feb. 12,1997), p.

4. In enacting the ADA, Congress found that “individuals who have experienced

discrimination on the basis of disability have often had no legal resourse to

redress such discrimination,” and that “the Nation’s proper goals regarding

individuals with disabilities are to assure equality of opportunity, f3.l

participation, independent living, and economic self-sufficiency. . ..’, 42 U.S.C.

§ 12101(a)(4), (8).

Given the compelling public policies underlying the enactment of the

Americans with Disabilities Act, it is clear that the narrow representations made

by plaintiffNunes in her application for State Disabrlity Insurance (SDI) should

not act to bar her ADA claims. The district court’s ruling would permit even a

g d t y employer to go free, thus undermining the enforcement objectives of the

~~

perform job with accommodation), a f d , 74 F.3d 1236 (5th Cir. 1995); Overton


I

Act. “[Alpplying estoppel in the circumstances here could undermine the policy

goals of the ADA. . . The ADA’s overriding purpose of encouraging the

disabled to seek employment would be thwarted by application of judicial

estoppel in the circumstances of this case.”Mohamed, 944 F. Supp. at 283-84 I I (S.D.N.Y. 1996).

I Legal action by individuals with disabilities who have been denied 1

employment opportunities is essential to enforcing the Act. See 42 U.S.C. 6

121 17(a) (incorporating enforcement procedures of Title VII). Indeed, it is the

purpose of the Act to provide “clear, strong, consistent, enforceable standards

addressing discrimination against individuals with dsabilities.” 42 U.S.C. 6

12101@)(2). As the United States Supreme Court stated in an unanimous

opinion, “[tlhe private litigant in Title VII not only redresses hs own injury but

also vindicates the important congressional policy against discriminatory

employment practices.” McKennon v. Nashville Banner Publishing Co., 5 13

U.S. 352, 115 S. Ct. 878, 884 (1995).

Further, “given the serious financial constraints that an ill or injured

employee often may face, it is not clear that it would be equitable to place the

employee in the position of choosing between applying for disability benefits or

filing an ADA lawsuit that may not be resolved for years.” Norris, 948 F. Supp.

v. Reilly, 971 F.2d 1190 (7th Cir. 1992).


at 1448. “Defendant’s position would place plaintiff in the untenable position of

choosing between his right to seek disability benefits and his right to seek

redress for an alleged violation of the ADA” Smith V . Dovenmuehle Mortgage,

859 F. Supp. 1138,1142 (N.D. Ill. 1994). Barring the plahtif€“would

undermine the legislative policy of providing the disabled with both protection

against destitution and a genuine opportunity to participate M y in the job

market.” Mohamed v. Marriott Int ’I, Inc., 944 F. Supp. at 284.

CONCLUSION

For all the reasons stated herein, the judgment of the district court should

be reversed, and this case remanded for firher proceedings.

Dated: January28, 1998 Respecmy submitted,

EMPLOYMENTLAW CENTER A Project of the LEGAL AID

SOCIETY OF S A N f /-

By: [ :,<% Claudia Center Attorney for Plaintiff-Appellant, V E R A L . ” E S


CERTIFICATE OF COMPLIANCE

Pursuant to Ninth Circuit Rule 32(e)(4), the undersigned certifies that this

brief is of proportionately spaced type of 14 points and does not exceed 14,000

words.

_ .

STATEMENT OF RELATED CASES

The undersigned is aware of the following pending cases before this Court

that raise the issue of judicial estoppel, or a showing of "qualified" under the

Americans with Disabilities Act, in the context of applications for or receipt of

California's State Disability Insurance (SDI) benefits: Hunt v. Longs Dmg, No.

97-17003 (filed 9th Cir. Oct. 8, 1997) (undersigned is co-counsel); Fredenburg

v. Contra Costa Cty., No. 97-15885 (filed May 16, 1997) (undersigned has filed

an amicus brief); Norris v. AIIies Sysco FoodServices, Inc., No. 97-16716 (filed

Sept. 5,1997) (assigned to ADR). See also Miller v. US. Bancorp, et al., NO.

96-35678 (filed June 14,1996) (raising same issue in the context of disability \

benefits other than SDI

By: Clauda Center Attorney for Plaintiff-Appellant, VERAL."ES


CERTIFICATE OF SERVICE

I declare that I am over the age of 18 years and am not a party to the

within action. My business address is 1663 Mission Street, Suite 400, San

Francisco, California, 94 103;

that on January 28,1998, I caused to be served two copies of the

following document entitled:

APPELLANT'S OPENING BRIEF

and one copy of the following document entitled:

APPELLANT'S EXCERPTS OF RECORD

by placing true and correct copies thereof in a sealed envelope with postage fully prepaid in the United States Mail at San Francisco, California addressed as follows:

David F. Faustman Jodie Jones Faustman, Carlton, DiSante & Freundenberger 388 Market Street, Suite 920 San Francisco, CA 941 11 (2 copies)

I declare under penalty of perjury that the foregoing is true and correct.

Executed this 28 day of J a n u a ~ ~ , 1998 at San Francisco, California.

Ana E. Flores

\

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