Broussard v. University of CA.

• Decision Date: 10 March 1999
• Docket Number: No. 97-17389,97-17389
• Citation: 192 F.3d 1252
• Parties: (9th Cir. 1999) JOCELYN BROUSSARD, Plaintiff-Appellant, v. UNIVERSITY OF CALIFORNIA, AT BERKELEY, Defendant-Appellee, OFFICE OF LABORATORY ANIMAL CARE, Defendant-Appellee
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1252

192 F.3d 1252 (9th Cir. 1999)

JOCELYN BROUSSARD, Plaintiff-Appellant, v. UNIVERSITY OF CALIFORNIA, AT BERKELEY, Defendant-Appellee, OFFICE OF LABORATORY ANIMAL CARE, Defendant-Appellee.

No. 97-17389

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted March 10, 1999--San Francisco, California

Filed September 20, 1999

Todd M. Schneider, Schneider & McCormac, San Francisco, California, for the plaintiff-appellant.

Kenneth L. Kann, Pahl & Gosselin, San Francisco, California, for the defendant-appellee.

Laurence Paradis and Sid Wolinsky, Disability Rights Advocates, Oakland, California, for the amicus curiae.

Appeal from the United States District Court for the Northern District of California; William H. Orrick, Jr., District Judge, Presiding. D.C. No. CV-96-01864-WHO.

Before: Herbert Y. C. Choy and A. Wallace Tashima, Circuit Judges, and Jane A. Restani,^* Judge, United States Court of International Trade.

Opinion by Judge Restani

RESTANI, Judge:

Appellant Jocelyn Broussard ("Broussard") appeals the judgment of the United States District Court for the Northern District of California granting the University of California at Berkeley ("the University") summary judgment dismissing Broussard's claim against the University under the Americans with Disabilities Act ("ADA"). Broussard claims that the district court erred in determining that she was not disabled within the meaning of the ADA, and that the district court erred in deciding that there were no genuine issues of material fact regarding whether she could perform the essential functions of her job, with or without reasonable accommodation. Amicus curiae, Disability Rights Advocates, filed a brief in support of Broussard's claim. We have jurisdiction pursuant to 28 U.S.C. S 1291 (1994) and we affirm the district court's grant of summary judgment in favor of appellee.

I. BACKGROUND

Jocelyn Broussard was an animal technician in the Office of Laboratory Animal Care ("OLAC"), which is responsible for the daily care of research animals at the Berkeley campus. When Broussard began working at OLAC in 1986, she took care of a variety of animals, and in 1991, she began working with transgenic mice.

Transgenic mice are mice that are genetically altered to have various immune deficiencies, and must be cared for according to a rigid protocol in order to ensure their health. All the care of the transgenic mice must be carried out undera "biohood," an air filtration system which prevents germs from entering into contact with the mice. The animal technician caring for these mice must work at a rapid pace to minimize the time the mice spend under the biohood. Unlike other animals at OLAC, the transgenic mice must be given water manually, because there is no automatic watering system under the biohood.

In September of 1992, Broussard began experiencing pain in her right wrist, and attributed this to the constant stoppering and unstoppering of water bottles. Broussard was diagnosed with carpal tunnel syndrome ("CTS"), and her doctor advised her to wear splints on her wrists to alleviate the pain, and to limit the time she spent stoppering and unstoppering water bottles to one-hour intervals. Broussard claims OLAC allowed her to work with animals other than the transgenic mice in 1992, and that she spent extra time working in the washroom and on the computer.

From December 1992 to February 1993, Broussard was unable to work because of a non-work related disability. The pain in her wrist continued in 1993. Her physician found that Broussard needed temporary restrictions which affected her ability to lift and reach, and OLAC temporarily accommodated these restrictions.

In March 1993, Broussard's hand specialist, Dr. J. Hsieh, further limited her work, requiring that she spend no more than fifty percent of her day working with the cages and the water bottles. OLAC had to assign half of her workload with the transgenic mice to another technician. Broussard ceased working in August 1993, due to the pain in her wrist. She underwent surgery on her wrist in December 1993. She was on temporary disability status until June 29, 1994, when her treating physician, Dr. Massem, released her to work with a variety of restrictions. Broussard claims that OLAC would not accommodate these restrictions.

Broussard underwent a work tolerance evaluation in order to determine her abilities in light of her CTS. Timothy Brent, a certified rehabilitation counselor, found that Broussard could work safely in thirty to forty-five minute intervals of "Sedentary to Light manual labor activities." He concluded, however, that she had "moderate to poor potential to carry out her job duties as Animal Technician," because she would need to clean and change animal cages for a sustained two hour period and her "current ability indicates a maximum of 30 to 45 minutes of this particular activity."

Broussard requested that she be transferred out of the transgenic mice suite and that she be allowed to work with animals on the automatic watering system. The University said there were no vacancies in OLAC in June 1994, and that positions which opened in early March 1995 were positions for which Broussard lacked the necessary qualifications. OLAC's chief administrative officer and a University vocational rehabilitation specialist concluded that because all the animal technician positions required repetitive motion, Broussard was unable to perform this work.

On December 7, 1994, Al Perez, a vocational rehabilitation counselor at the University, informed Broussard that she was "medically separated" (i.e. that her employment had been terminated). Broussard's appeal of this decision was denied.

Broussard applied for Social Security benefits and longterm disability benefits under the University of California Retirement Plan ("UCRP"). Broussard was denied the Social Security benefits, but was awarded $479 per month under the UCRP. She continues to receive this benefit.

Broussard filed a complaint before the Equal Employment Opportunity Commission ("EEOC") in 1995, and received a right to sue letter in February 1996. Broussard filed a complaint against the University on May 20, 1996, claiming that the University violated the ADA when she was medically separated.

The University moved for summary judgment in May 1997, and this motion was initially denied. The University filed a motion for reconsideration, and the district court granted this motion on November 21, 1997, after a request for rebriefing on specific issues. The court found that Broussard had failed to raise a genuine issue of material fact as to whether she was disabled under the terms of the ADA, and was not a qualified individual under the Act. The court also found that Broussard was judicially estopped from claiming she was disabled under the terms of the ADA because of the representations she had made regarding her disability in her application for benefits under Social Security and the UCRP. Plaintiff appeals on both grounds.¹

II. STANDARD OF REVIEW

We review a grant of summary judgment de novo . Young v. Anthony's Fish Grottos, Inc., 830 F.2d 993, 996 (9th Cir. 1987). The question of whether the district court properly applied the judicial estoppel doctrine to the facts presented in this case is reviewed for abuse of discretion. See Johnson v. State of Oregon, 141 F.3d 1361, 1364 (9th Cir. 1998) (citation omitted).

III. DISCUSSION

Congress enacted the ADA in 1990 in an effort to eliminate discrimination against individuals with disabilities. See 42 U.S.C. S 12101(b) (1994) (stating general purpose of ADA). The ADA prohibits covered employers from discharging otherwise qualified employees solely because they have a disability. See 42 U.S.C. S 12112(a). To prevail, the plaintiff in an employment termination case must show "(1) that [she] is a disabled person within the meaning of the ADA; (2) that [she] is qualified . . . with or without reasonable accommodation . . . to perform the essential functions of the job; and (3) that the employer terminated [her] because of [her] disability." Kennedy v. Applause, Inc., 90 F.3d 1477, 1481 (9th Cir. 1996) (citation and footnote omitted).

Disability within the meaning of the ADA

The ADA defines an individual with a disability as someone who has "a physical or mental impairment that substantially limits one or more of the major life activities of such individual." 42 U.S.C. S 12102(2)(A). One must have an actual disability to fall within this definition. Sutton v. United Air Lines, Inc., 119 S.Ct. 2139, 2144 (1999). Pursuant to EEOC regulations, "working" constitutes a major life activity. 29 C.F.R. S 1630.2(i) (1999).² The statute does not define the term "substantially limited," but the regulations state that an individual is "substantially limited" from working if she is "significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working." 29 C.F.R. S 1630.2(j)(3)(i).

The regulations further state that additional factors may be considered in order to determine whether or not an individual is substantially limited in the major life activity of working. See 29 C.F.R. S 1630.2(j)(3)(ii). These considerations are:

(A) The geographical area to which the individual has reasonable access;

(B) The job from which the individual has been disqualified because of an impairment, and the number and types of jobs utilizing similar training, knowledge, skills or abilities, within that geographical area, from which the individual is also disqualified because of the impairment (class of jobs) and/or;

(C) The job from which the individual has been disqualified because of an impairment, and the number and types of...