192 F.3d 1226 (9th Cir. 1999), 97-56787, McAlindin v County of San Diego

Docket Nº:97-56787
Citation:192 F.3d 1226
Case Date:September 16, 1999
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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192 F.3d 1226 (9th Cir. 1999)




No. 97-56787

United States Court of Appeals, Ninth Circuit

September 16, 1999

Argued and Submitted June 10, 1999

As amended January 18, 2000.

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Dennis M. Grady, Grady & Associates, San Diego, California, for the plaintiff-appellant.

Lloyd M. Harmon and William H. Songer, Office of the County Counsel, San Diego, California, for the defendants-appellees.

Appeal from the United States District Court for the Southern District of California; Jeffrey T. Miller, District Judge, Presiding D.C. No. CV-94-01453-JTM/RBB Petition for rehearing denied. Pasadena, California

Before: Dorothy W. Nelson, Stephen Reinhardt, and Stephen S. Trott, Circuit Judges.

Opinion by Judge D.W. Nelson; Partial Concurrence and Partial Dissent by Judge Trott

D. W. Nelson, Circuit Judge


Richard McAlindin, who has been diagnosed as suffering from anxiety disorders, panic disorders, and somatoform disorders,1 appeals the district court's grant of summary judgment on his Americans with Disabilities Act ("ADA") claim. McAlindin also appeals the district court's grant of summary judgment on his claim that the County of San Diego ("the County") retaliated against him for asserting his rights under the ADA. We hold that sleeping, engaging in sexual relations, and interacting with others are "major life activities" under the ADA, and that McAlindin has raised a triable issue as to whether he is substantially limited in a major life activity. We reverse the grant of summary judgment on the ADA claim and remand for further proceedings. However, we affirm the district court's grant of summary judgment on the retaliation claim.


McAlindin began working for the County's Housing and Community Development Department as a systems analyst in September 1983. Several doctors have concluded that McAlindin suffers from anxiety disorders, panic disorders, and somatoform disorders. He has received treatment, including psychotherapy and a number of medications, such as Xanax, Buspar, and Paxil. McAlindin explained his condition in his declaration, which stated the following:

I have been diagnosed with anxiety disorders, including panic disorders and somatoform disorders.... Despite the medications [I take], I continue to experience symptoms so severe that at least once a month, I am completely incapacitated, and forced to lie down. Symptoms include dizziness, lightheadedness, narrowed vision, and strange sensations in my head, and my arms and legs. As a result of the medications, I experience

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impotence. In addition, since 1989, I have frequently been unable to sleep and have had severe insomnia. The medication has helped with this, but I still experience problems with sleeping. Without the medication, my symptoms return. If I do not take my medication, I am unable to function. The frequency and severity of the symptoms increases to the point where I cannot take care of myself. My condition interferes with my ability to see and hear and speak. The sense of anxiety, without medication, is so overwhelming, that I am unable to do anything. I am essentially "paralyzed."

McAlindin received a "provisional promotion" in early 1989, which brought new, very stressful duties. In June 1989, McAlindin complained about a vendor's misconduct, yet his supervisors disregarded his complaints. According to McAlindin's supervisor, McAlindin became agitated and started shouting in an accusatory manner during the meeting. Soon thereafter, McAlindin sought and was granted leave due to "work stress." He obtained workers compensation for the stress.

In May 1992, McAlindin again took leave for stress-related disability. He submitted medical documents from his physician requesting that his leave be extended, and the County complied. When it became clear that McAlindin's leave would extend beyond a year, the County informed his attorney that his status would no longer be designated as "leave without pay with right to return." Pursuant to the County's regulations, individuals may not remain on disability leave "with right to return" for more than a year.

During McAlindin's leave, he repeatedly requested through his attorney a transfer to a different job as a "reasonable accommodation" required by the ADA. McAlindin explained that several of his doctors had advised that he not return to his previous work setting because the negative associations there would impede his recovery. The County responded by offering to place his name on the transfer list but made it clear that it would not make any special efforts to ensure a transfer. In addition, the County said that it preferred to explore ways of accommodating McAlindin in his present position. Based on his familiarity with the County, McAlindin states that "there are a number of positions for systems analysts [in other departments] and that vacancies occur with some frequency, because of transfers, and attrition." The County does not dispute this. The County maintains an unranked transfer list, which departments can utilize if they wish when they have vacancies. The County's policy is to require employees to arrange their own transfers.

In July 1993, the County required McAlindin to undergo an examination by a County-retained psychiatrist to evaluate his ability to return to work. Dr. Reiss confirmed the diagnosis of anxiety and panic disorders. Dr. Reiss also found that McAlindin required more aggressive medications and psychotherapy in order to return to his position. Dr. Reiss concluded that, with the proper treatment, McAlindin could return to his job in three to six weeks. After receiving Dr. Reiss' evaluation, the County told McAlindin that he had to obtain the required treatment and return to his job within two months, or else he would lose any likelihood of working for the County again.

When he returned from his second disability leave, McAlindin felt that the way he was treated by his supervisors changed drastically. McAlindin was given a written warning by his supervisor for sleeping at work, although he informed his supervisor that his doctor had prescribed medications that made him drowsy. McAlindin also complained about not receiving adequate training to help him adapt to the changing technologies in the department when he returned from his leave of a year and a half. McAlindin alleged that the other systems analyst in his department, Floyd Garrett, had been sent to off-site training, which McAlindin had been denied.

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Garrett countered that he had not received off-site training and had been trained exclusively through an on-site computer tutorial and on-the-job-training. County officials testified that the County relies almost exclusively on the computer tutorial for training.

McAlindin sued the County and his supervisors for disability discrimination in violation of the ADA, 42 U.S.C. S 12101 et seq., and the California Fair Employment and Housing Act ("FEHA"), Cal. Gov. Code S 12940 et seq., and for age discrimination and retaliation under FEHA. On December 5, 1995, the district court granted in part and denied in part the County's motion for summary judgment. The court granted summary judgment on McAlindin's disability claim, holding that he lacked a "disability" within the meaning of the ADA. The court also dismissed McAlindin's state law claims for age and disability discrimination, from which McAlindin does not appeal. The district court expressed doubt that most of McAlindin's retaliation allegations could survive summary judgment. Nonetheless, because McAlindin asked to amend his complaint to add new factual allegations of retaliation regarding a recent suspension, the district court denied summary judgment on the retaliation claim.

On September 12, 1997, the district court granted summary judgment on most of the alleged instances of retaliation discussed in the 1995 order: (a) the denial of a transfer; (b) the revocation of McAlindin's "right to return;" (c) the County's requirement that McAlindin return to his former job; (d) the failure to provide necessary training; (e) the written warning for sleeping; and (f) general harassment/failure to accommodate.

Regarding McAlindin's remaining retaliation allegations, however, the district court denied summary judgment. The court found that there were factual disputes regarding a suspension and some negative evaluations that McAlindin received. Although McAlindin could have gone to trial on these issues, he chose to dismiss this part of his retaliation claim. On September 29, 1997, the district court entered final judgment, permitting McAlindin to appeal the grant of summary judgment on his disability and retaliation claims. McAlindin timely appealed. At the time of oral argument, McAlindin remained employed by the County in his same job.


We review a grant of summary judgment de novo. See Bradley v. Harcourt Brace and Co., 104 F.3d 267, 269 (9th Cir. 1996) (citing Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir. 1996)). "We must determine, viewing the evidence in the light most favorable to the non-moving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law." Id.



A. Major life activities

The ADA, which prohibits discrimination against a "qualified individual with a disability," 42 U.S.C. S...

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