Nunes v. Wal-Mart Stores, Inc.

• Decision Date: 28 January 1999
• Docket Number: No. 97-17147,WAL-MART,97-17147
• Citation: 164 F.3d 1243
• Parties: 8 A.D. Cases 1813, 14 NDLR P 137, 99 Cal. Daily Op. Serv. 791, 99 Daily Journal D.A.R. 953 Vera L. NUNES, Plaintiff-Appellant, v.STORES, INC.; Mike Black; Rita Silva, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1243

164 F.3d 1243

8 A.D. Cases 1813, 14 NDLR P 137, 99

Cal. Daily Op. Serv. 791,

99 Daily Journal D.A.R. 953

Vera L. NUNES, Plaintiff-Appellant, v. WAL-MART STORES, INC.; Mike Black; Rita Silva, Defendants-Appellees.

No. 97-17147.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 10, 1998.

Decided Jan. 28, 1999.

Claudia Center, The Employment Law Center, San Francisco, California, for the plaintiff-appellant.

David F. Faustman, Faustman, Carlton, DiSante & Freudenberger, San Francisco, California, for the defendants-appellees.

Appeal from the United States District Court for the Northern District of California; Joan S. Brennan, Magistrate Judge, Presiding. D.C. No. CV-96-03342-JSB.

Before: FLETCHER, FERGUSON and THOMPSON, Circuit Judges.

DAVID R. THOMPSON, Circuit Judge:

Vera L. Nunes ("Nunes") appeals the district court's summary judgment in favor of Wal-Mart Stores ("Wal-Mart") in her action under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA"). Nunes contends the district court erred in concluding that she was not a "qualified individual with a disability" under the ADA. In addition, Nunes argues the district court erred in determining that she posed a "direct threat" to others because of her disability. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse.

BACKGROUND

In early 1994, Nunes became a regular sales associate for Wal-Mart. Wal-Mart's benefits included short-term medical leaves of absence for up to one year. For many years prior to her employment at Wal-Mart, Nunes suffered from a fainting disorder that caused episodes during which she lost consciousness. These "syncopal episodes" varied in frequency, and in late 1995 were diagnosed as being stress-related.

Nunes had the first syncopal episode while working for Wal-Mart in March 1994. After Nunes suffered two episodes in April (one at work), she went out on medical leave until the end of July. Nunes returned to work and worked without incident for six months, but then had two more syncopal episodes at work in February 1995. No injuries to Nunes or anyone else occurred because of the incidents at work, and Nunes was able to continue working subject to a 15-pound lifting restriction. On March 3, 1995, however, Nunes fainted while walking to the break room, breaking her glasses and cutting her eyebrow.

With the encouragement of Wal-Mart, Nunes began an extended medical leave of absence on March 3, 1995, for diagnosis and treatment of her condition. In applying for California temporary disability benefits ("SDI"), Nunes and her doctor certified that Nunes was incapable of performing her "regular or customary work." Nunes's physician listed March 7, 1995, as the day her disability commenced and May 1, 1995, as an estimated date when she could return to work.

After May 1, various doctors provided Wal-Mart with documentary proof of Nunes's illness, indicating her continuing inability to return to work because she was still suffering from fainting episodes. One doctor's certification stated that Nunes would be unable to return to work until November 15, 1995. Another doctor certified that Nunes would be unable to work from August 1, 1995, until December 1, 1995.

During October 1995, Nunes was hospitalized and learned stress-reduction exercises to help control her disorder. Some time before October 27, 1995, while Nunes was in the The manager later told Nunes she had been terminated because of her failure to submit leave of absence forms and because Wal-Mart needed someone to fill her position during the holidays. Nunes had her last syncopal episode in December 1995. She became a cashier at McDonald's beginning in April 1996 and has remained in that position ever since without any fainting incidents.

hospital, a Wal-Mart personnel manager tried to phone her, but found her phone line disconnected. The manager learned that Nunes was in the hospital, but did not try to contact her there. Contrary to Wal-Mart's policy, the personnel manager did not send Nunes a certified letter inquiring about her status and giving her three days to respond before final termination. Instead, the store manager terminated Nunes on October 27, 1995.

In her complaint, Nunes alleged twelve causes of action, including claims under the ADA, the Family and Medical Leave Act, the California Family Rights Act, the California Fair Employment and Housing Act, as well as state tort claims. The district court granted summary judgment in favor of Wal-Mart on all claims. In this appeal, however, Nunes limits the issues to the district court's summary judgment on her ADA claim.

DISCUSSION

A. Standard of Review

We review de novo a grant of summary judgment. See Summers v. A. Teichert & Son, Inc., 127 F.3d 1150, 1152 (9th Cir.1997). Viewing the evidence in the light most favorable to the nonmoving party, we must determine whether there is a genuine issue of material fact and whether the district court correctly applied the relevant substantive law. See id.

B. Qualified Individual with a Disability under the ADA

The district court determined that Nunes was not a qualified individual with a disability under the ADA. It did so on the alternate grounds that (1) her statements in her application for SDI benefits precluded a recovery on her ADA claim and (2) her doctors had certified in connection with her SDI application that Nunes could not perform the essential functions of her job on the date she was terminated. We conclude the court erred on both grounds.

The ADA prohibits an employer from discriminating "against a qualified individual with a disability because of the disability." 42 U.S.C. § 12112(a). Thus, to state a prima facie case under the ADA, Nunes must show that (1) she is a disabled person within the meaning of the ADA; (2) she is a qualified individual, meaning she can perform the essential functions of her job; and (3) Wal-Mart terminated her because of her disability. See Kennedy v. Applause, 90 F.3d 1477, 1481 (9th Cir.1996).

The ADA further defines the second prong of the prima facie case, "qualified individual with a disability," as an "individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8); see also 29 C.F.R. § 1630.2(m).

Relying on Kennedy, the district court held that "Nunes must be precluded from claiming that she was 'qualified' under the ADA because she made inconsistent remarks when she applied for and received state disability insurance benefits." Kennedy does not dictate this conclusion. Kennedy applied traditional summary judgment principles in considering the statements the plaintiff made seeking state disability benefits. Kennedy, 90 F.3d at 1477. Indeed, we have joined the majority of circuits in holding that "neither application for nor receipt of disability benefits automatically bars a claimant from establishing that she is a qualified person with a disability under the ADA." Johnson v. Oregon, 141 F.3d 1361, 1367 (9th Cir.1998) (emphasis in original). Thus, the district court erred in determining that, because Nunes applied for SDI benefits, she was precluded from claiming she was a qualified individual under the ADA.

The district court also erred in determining that Nunes was totally disabled on the date of her termination. It is undisputed that, during the period of Nunes's medical leave leading up to her termination, her doctors continued to state that she was incapacitated and unable to return to work. Relying on these certifications during this period, the By focusing on Nunes's disability during the period of her medical leave, however, the district court misapplied the ADA's "qualified individual" requirement. The ADA requires that Nunes be able to perform the essential functions of her job "with or without reasonable accommodation." 42 U.S.C. § 12111(8). Unpaid medical leave may be a reasonable accommodation under the ADA. See 29 C.F.R. Part 1630, Appendix (discussing § 1630.2(o)). Even an extended medical leave, or an extension of an existing leave period, may be a reasonable accommodation if it does not pose an undue hardship on the employer. See 42 U.S.C. § 12111(9), (10); Norris v. Allied-Sysco Food Servs., Inc., 948 F.Supp. 1418, 1438 (N.D.Cal.1996). If Nunes's medical leave was a reasonable accommodation, then her inability to work during the leave period would not automatically render her unqualified.

district court concluded that Nunes was totally disabled and therefore unqualified under the ADA.

Determining whether a proposed accommodation (medical leave in this case) is reasonable, including whether it imposes an undue hardship on the employer, requires a fact-specific, individualized inquiry. See Hall v. U.S. Postal Serv., 857 F.2d 1073, 1080 (6th Cir.1988) (reversing grant of summary judgment in a Rehabilitation Act claim). In the summary judgment context, a court should weigh the risks and alternatives, including possible hardships on the employer, to determine whether a genuine issue of material fact exists as to the reasonableness of the accommodation. See, e.g., Barnett v. U.S. Air, Inc., 157 F.3d 744, 752 (9th Cir.1998); Willis v. Conopco, Inc., 108 F.3d 282, 285 (11th Cir.1997) (both affirming summary judgment because the plaintiff failed to raise material issue that the requested accommodation was reasonable).

The record indicates that Nunes was a good employee who had received "above average" performance ratings. She went out on medical leave with the blessing of Wal-Mart, whose stated benefits policy included unpaid medical leave of up to one year. Throughout the leave period, Nunes submitted doctors' certifications to Wal-Mart indicating that she would be unable to work until November or December 1995. When she was terminated in October 1995, she had been on medical leave for seven months and...