Finical v. Collections Unlimited, Inc.

• Decision Date: 19 August 1999
• Docket Number: No. Civ97-1649-PHX-ROS.,Civ97-1649-PHX-ROS.
• Citation: 65 F.Supp.2d 1032
• Parties: Deborah FINICAL, Plaintiff, v. COLLECTIONS UNLIMITED, INC., an Arizona corporation, Defendant.
• Court: U.S. District Court — District of Arizona

65 F.Supp.2d 1032

Deborah FINICAL, Plaintiff, v. COLLECTIONS UNLIMITED, INC., an Arizona corporation, Defendant.

No. Civ97-1649-PHX-ROS.

United States District Court, D. Arizona.

August 19, 1999.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Richard Moreno Martinez, Law Offices of Richard M. Martinez, Tucson, AZ, for Deborah Finical, plaintiff.

Richard K. Mahrle, Karen Gillen, Gammage & Burnham PLC, Phoenix, AZ, for Collections Unlimited, Inc., defendant.

ORDER

SILVER, District Judge.

Plaintiff Deborah Finical, an individual with a hearing impairment, filed a Complaint on August 5, 1997 and an Amended Complaint on August 8, 1997 alleging claims under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. Plaintiff worked for Defendant Collections Unlimited as a telephone collector. In her Amended Complaint, interpreted with reference to two documents attached thereto and incorporated therein — her EEOC charge and the EEOC's determination — Plaintiff claims that Defendant terminated her due to her hearing impairment. Pending before the Court is Defendant's Motion for Summary Judgment on this claim.

In the Amended Complaint, Plaintiff further claims that Defendant terminated her in retaliation for her acts of requesting a reasonable accommodation and complaining when the requests were denied. As Plaintiff indicates, Defendant's Motion does not address this claim. At the hearing on the summary judgment motion on August 2, 1999, Defendant explains that it did not request summary judgment on the retaliation claim because Plaintiff, in setting forth the claim, cites 42 U.S.C. § 12112, a provision requiring the preliminary determination that the claimant is a qualified individual with a disability. The Court is uncertain whether Defendant believed the claim to be invalid because Plaintiff cited the incorrect statute or whether Defendant believed the claim was defeated by the argument that Plaintiff is not a qualified individual with a disability. As will be discussed in detail below, the Court concludes that the incorrect citation did not render the claim invalid. The Court further concludes that providing Defendant an opportunity to file a summary judgment motion on the claim would be futile because Plaintiff has set forth sufficient admissible evidence to create genuine issues of material fact with respect to this claim.

DISCUSSION

A motion for summary judgment may be granted if the evidence shows "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). To defeat the motion, the non-moving party must show that there are genuine factual issues "that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). The Court views the evidence in the light most favorable to the nonmoving party and draws any reasonable inferences in the nonmoving party's favor. Warren v. City of Carlsbad, 58 F.3d 439, 443 (9th Cir. 1995), cert. denied, 516 U.S. 1171, 116 S.Ct. 1261, 134 L.Ed.2d 209 (1996).

I. Claim of Termination Due to Hearing Impairment

To survive a motion for summary judgment on her claim of termination due to her hearing impairment, Plaintiff must establish a genuine issue of material fact regarding the following elements: (1) she has a disability as defined by the ADA; (2) she can perform essential job functions either with or without a reasonable accommodation; and (3) she was terminated because of her disability. Kennedy v. Applause, 90 F.3d 1477, 1481 (9th Cir.1996) (internal quotation omitted). Defendant argues that Plaintiff has failed to offer evidence sufficient for a reasonable jury to conclude that she has satisfied the first and third elements set forth. The Court will consider each in turn.

A. Does Plaintiff Have a "Disability" as Defined by the ADA?

The ADA proscribes "discriminat[ion] against a qualified individual with a disability because of the disability of such individual in regard to ... discharge." 42 U.S.C. § 12112(a). Defendant argues that Plaintiff does not have a disability as defined by the ADA. The statute defines the term "disability" as:

(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;

(B) a record of such impairment; or

(C) being regarded as having such an impairment.

42 U.S.C. § 12102(2). Defendant does not dispute that Plaintiff's hearing loss is a "physical ... impairment" or that hearing is a "major life activit[y]." Id. Rather, Defendant argues that Plaintiff's impairment, evaluated in light of the mitigating measures she employs, is not one that "substantially limits" her hearing. Id.

At the time the parties filed the pending pleadings, the Ninth Circuit had concluded that mitigating measures cannot be considered in determining whether an individual is disabled as defined by the ADA. See Holihan v. Lucky Stores, Inc., 87 F.3d 362, 366 (9th Cir.1996) (citing 29 C.F.R. § 1630.2(h) (App.)), cert. denied, 520 U.S. 1162, 117 S.Ct. 1349, 137 L.Ed.2d 506 (1997). However, after these pleadings were filed, the Supreme Court issued three decisions holding that "the determination of whether an individual is disabled [under the ADA] should be made with reference to measures that mitigate the individual's impairment."¹ Sutton v. United Airlines, Inc. ___ U.S. ___, 119 S.Ct. 2139, 2143, 144 L.Ed.2d 450, ___ (1999). See also Albertsons, Inc. v. Kirkingburg, ___ U.S. ___, 119 S.Ct. 2162, 144 L.Ed.2d 518 (1999); Murphy v. United Parcel Svc., Inc., ___ U.S. ___, 119 S.Ct. 2133, 144 L.Ed.2d 484 (1999).

The factual background of each of these cases illustrates the range of mitigating measures that must be considered. In Sutton, each of the two plaintiffs, who were twin sisters, had uncorrected vision of 20/200 or worse in the right eye and 20/400 or worse in the left eye. ___ U.S. at ___, 119 S.Ct. at 2143. However, with the use of corrective lenses, each had vision of 20/20 or better and therefore could function identically to individuals without a vision impairment. Id. Taking into account the corrective lenses, the Court determined that the plaintiffs' impairment did not substantially limit a major life activity and thus the plaintiffs did not have a disability for purposes of the ADA. Id. at 2149. In Murphy, the plaintiff had extremely high blood pressure of approximately 250/160 when unmedicated. ___ U.S. at ___, 119 S.Ct. at 2136. However, when he took medication, his blood pressure was measured at 160/102 and 164/104. Id. With medication, the plaintiff functioned normally with the exception of limitations on his ability to lift heavy objects. Id. at 2137. Evaluating this plaintiff's condition in light of the corrective measure of blood pressure medication, the Court concluded that his impairment likewise did not substantially limit a major life activity. Thus, the plaintiff was not disabled for purposes of the ADA. Id. at 2137.

The third action, Albertsons, involved a plaintiff with 20/200 vision in one eye, i.e., one who had essentially monocular vision. ___ U.S. at ___ - ___, 119 S.Ct. at 2165-66. The record indicated that the plaintiff's brain had developed methods of compensating for his disability, including "subconscious adjustments to the manner in which he sensed depth and perceived peripheral objects." Id. at 2168-69. Extending the range of mitigating measures that must be considered, the Supreme Court held that, in addition to artificial aids such as corrective devices and medication, courts must consider the individual's physical ability to compensate for the impairment suffered. Id. As a result, the Court reversed a Ninth Circuit decision concluding that monocular vision constitutes a disability per se and held that the plaintiff's ability to make subconscious physical adjustments must be considered before a disability determination can be made. Id.

In the lead case of this trio, Sutton, the Supreme Court set forth three reasons for concluding that mitigating measures must be considered in determining whether individuals are disabled under the ADA. First, the ADA definition of "disability", "a physical or mental impairment that substantially limits one or more of the major life activities" of an individual, appears in the present indicative verb form. Sutton, ___ U.S. at ___, 119 S.Ct. at 2146 (quoting 42 U.S.C. § 12102(2)). According to the Court, "th[is] language is properly read as requiring that a person be presently —not potentially or hypothetically— substantially limited in order to demonstrate a disability." Id. Second, the Court concluded that, by requiring analysis of whether an impairment substantially limits a major life activity "of such individual", the statutory language requires an individualized inquiry rather than an inquiry treating the individual as a member of a group with similar impairments. Id. at 2147 (quoting 42 U.S.C. § 12102(2)). Concomitantly, judging individuals in their uncorrected or unmitigated state runs counter to an individualized inquiry because it requires speculation about how an impairment in its uncorrected state usually affects individuals. Id.

For its third reason, the Supreme Court relied heavily on a finding by Congress that "some 43,000,000 Americans have one or more physical or mental disabilities, and this number is increasing as the population as a whole is growing older." Id. (quoting 42 U.S.C. § 12101(a)(1)). Setting forth statistics obtained from studies conducted by the National Council on Disability, the Court concluded that this figure reflected individuals with functional limitations on their ability to perform certain basic life activities. Id. at 2147-48. In contrast, the Supreme Court noted, definitions of disability based on nonfunctional approaches produced...