Fraser v. Goodale

• Citation: 342 F.3d 1032
• Decision Date: 08 September 2003
• Docket Number: No. 01-36018.,01-36018.
• Parties: Rebecca Ann FRASER, Plaintiff-Appellant, v. Carol GOODALE; Jeff Erwin; Terri McKinnis; United States Bancorp, a federal insured banking corporation; United States Bank National Assoc., a federal insured banking corporation, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

342 F.3d 1032

Rebecca Ann FRASER, Plaintiff-Appellant, v. Carol GOODALE; Jeff Erwin; Terri McKinnis; United States Bancorp, a federal insured banking corporation; United States Bank National Assoc., a federal insured banking corporation, Defendants-Appellees.

No. 01-36018.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 7, 2003 — Portland, Oregon.

Filed September 8, 2003.

COPYRIGHT MATERIAL OMITTED

Craig A. Crispin, Crispin & Associates, Portland, Oregon, for the plaintiff-appellant.

Janine C. Blatt, Jeffrey J. Druckman, Bruckman & Associates, Portland, Oregon, for the defendants-appellees.

Daniel B. Kohrman, AARP Foundation Litigation, Washington, D.C., for the amicus.

Carl G. Kiss, Portland, Oregon, for the amicus American Diabetes Association.

Appeal from the United States District Court for the District of Oregon; Robert E. Jones, District Judge, Presiding. D.C. No. CV-00-00543-JO.

Before: DONALD P. LAY,^* J. CLIFFORD WALLACE, and RICHARD C. TALLMAN, Circuit Judges.

Opinion by Judge WALLACE; Dissent by Judge TALLMAN

OPINION

WALLACE, Senior Circuit Judge:

Fraser sued her former employer, United States Bancorp (Bank) under the Americans with Disabilities Act (ADA) and Or. Rev.Stat. § 659.436, contending the Bank discriminated against her because of her diabetes. She appeals from the Bank's summary judgement, arguing the district court erred in concluding that she failed to demonstrate a genuine issue of material fact as to whether her diabetes substantially limited her ability to eat, care for herself, think, and communicate. The district court had jurisdiction under 28 U.S.C. §§ 1331 and 1367. We have jurisdiction over this timely filed appeal pursuant to 28 U.S.C. § 1291. We affirm in part and reverse and remand in part.

I

Fraser suffers from type I insulin-dependent diabetes with recurring acidosis complicated by pulmonary impairment. Her diabetes is severe and life-threatening. Her diabetes is "brittle," meaning that her blood sugar levels are very difficult to control because her glucose levels tend to swing fairly quickly high or low. Her physician, Dr. Lockwood, explained that at the time of the Bank's allegedly unlawful conduct, her diabetes required four or more daily blood sugar tests (which each take several minutes to complete), and multiple injections of varying amounts and types of insulin or glucagon. The amount or type of insulin she needs depends on how much she ate, how active she was that day, her blood pressure, kidney function, infections, circulation, etc. This requires her to monitor carefully her day's diet, activities, and other similar factors. If she fails, she will find herself in a life-threatening situation. Unlike the average person, Fraser states that if she gets a scrape, "it can lead to gangrene in nothing flat because of the severity of [her] diabetes." In short, viewing the evidence in a light most favorable to Fraser, Fraser suffers from a very onerous and life-threatening form of diabetes.

Beginning in June 1998, Fraser worked as a Senior Account Specialist for the Bank. In mid-November of 1998, Fraser's supervisor, Jeff Erwin, notified Fraser that she may not eat at her desk. Later, Fraser recorded her blood sugar as "dangerously low 46." Her normal range is typically between 80 and 180. Minutes later, she became disoriented as her blood sugar dropped further to 34. She had food in her desk, but because of Erwin's earlier admonition, she first explained to him her immediate situation and sought his permission before eating. Erwin told her to come back when she had an intelligent question to ask. Fraser became even more disoriented and her memory was so impaired that she could not remember how to use the telephone. She purchased candy from a vending machine, but her glucagon levels were so low that the candy did not help enough. She again sought Erwin's permission to do something about her current situation, but to no avail. Fraser eventually passed out in the lobby of the Bank building. With her husband's and a co-worker's assistance, she finally arrived home and injected glucagon until her blood sugar came back to a normal level.

In November 1998, Fraser wrote to Erwin's supervisor, Joe Ledbetter, complaining about Erwin's actions. Ledbetter indicated that he was investigating her complaint. Ledbetter assured Fraser that Erwin "would be dealt with," but so far as Fraser is aware, Erwin was never disciplined. On March 12, 1999, the Bank terminated her employment. Fraser brought this action, alleging that from November 20, 1998, through March 3, 1999, she was subjected to retaliation for filing her complaint, including harassment, a change of assignment, a change of workstation, increased scrutiny, failure to pay benefits, threats to sue, contrived poor performance evaluations, and a host of other employment actions. Fraser sued for failure to make reasonable accommodations, 42 U.S.C. § 12111(9), retaliation for exercising her rights, Id. § 12203(b), discriminatory discharge, Id. § 12112(a), disability discrimination under state law, Or.Rev.Stat. § 659.436, and intentional infliction of emotional distress.

The Bank moved for summary judgment on all claims. Fraser voluntarily withdrew her emotional distress claim. The Bank argued that Fraser did not present a genuine issue of material fact as to whether she was disabled under the ADA. The district court agreed, concluding that Fraser gave only "generalities and speculation concerning how she might have been affected if her blood glucose level was not well-controlled, but has failed to produce specific, admissible evidence that she was, in fact, substantially limited during the relevant period of time." Fraser v. U.S. Bancorp, 168 F.Supp.2d 1188, 1194 (D.Or.2001). Fraser appeals, contending that she was disabled. She argues that even if she was not disabled, her retaliation claim may proceed because she has a good faith belief that she is disabled.

II.

We must first assure ourselves that we do not erroneously rely on evidence outside the summary judgment record. In reviewing a summary judgment, "we are limited to the ... evidence available to the court at the time the motion was made." Hopkins v. Dow Corning Corp., 33 F.3d 1116, 1121 (9th Cir.1994); Schneider v. County of San Diego, 28 F.3d 89, 92 (9th Cir.1994).

The Bank argues that Fraser cites to material outside the summary judgment record, namely, pages 10 and 99 of Dr. Lockwood's deposition, and pages 67 and 159 her own deposition. We have not found these pages in the summary judgment record, and therefore do not consider them in our review.

The Bank further argues that Fraser's claim that she is a brittle diabetic cannot be considered on appeal because it is based on an excerpt to her deposition which the Bank contends is not part of the record. The district court concluded that Fraser demonstrated sufficient evidence on the summary judgment record that she is a brittle diabetic. Fraser, 168 F.Supp.2d at 1191.

In her deposition, Fraser relied on her diary, which was attached to her deposition. The contents of the diary, if admissible, may be relied upon in the summary judgment proceeding. Fed.R.Civ.P. 56(e); Orr v. Bank of Am., 285 F.3d 764, 773 (9th Cir.2002) ("A trial court can [] consider [only] admissible evidence in ruling on a motion for summary judgment."). The Bank argues that because the diary is inadmissible hearsay, she may not rely on it to create a genuine issue of material fact. The Bank asked the district court to strike the diary from the record, but the district court did not rule on this request.

Fraser argues that the Bank's request to strike was not a proper formal motion to strike under the local rules for the District of Oregon. Fraser would have us conclude that the Bank waived its hearsay objection to the diary. However, the Bank's objection was clear, specific, and timely made to the district court in its reply motion for summary judgment. The Bank's evidentiary objection was preserved. Pfingston v. Ronan Eng'g Co., 284 F.3d 999, 1003 (9th Cir.2002) ("In order to preserve a hearsay objection, a party must either move to strike the affidavit or otherwise lodge an objection with the district court"); Perez v. Volvo Car Corp., 247 F.3d 303, 314-15 (1st Cir.2001) (formal motions to strike unnecessary to preserve an argument that an affidavit failed Rule 56(e)'s requirements).

Nonetheless, we need not decide whether the diary itself is admissible. It would be sufficient if the contents of the diary are admissible at trial, even if the diary itself may be inadmissible. At the summary judgment stage, we do not focus on the admissibility of the evidence's form. We instead focus on the admissibility of its contents. Block v. City of Los Angeles, 253 F.3d 410, 418-19 (9th Cir.2001) ("To survive summary judgment, a party does not necessarily have to produce evidence in a form that would be admissible at trial, as long as the party satisfies the requirements of Federal Rules of Civil Procedure 56."); Fed. Deposit Ins. Corp. v. N.H. Ins. Co., 953 F.2d 478, 485 (9th Cir.1991) ("the nonmoving party need not produce evidence in a form that would be admissible at trial in order to avoid summary judgment.") (internal quotation marks and citation omitted).

The contents of the diary are mere recitations of events within Fraser's personal knowledge and, depending on the circumstances, could be admitted into evidence at trial in a variety of ways. Fraser could testify to all the relevant portions of the diary from her personal knowledge. Fed. R.Evid. 602. If she forgets the exact dates or the details of the event, she may be able to use the diary to refresh her recollection. Fed.R.Evid. 612. Indeed, even inadmissible evidence may be used to refresh a witness's recollection. United States v. Frederick, 78 F.3d 1370, 1376 (9th Cir.1996); United States v. Weller, 238 F.3d 1215, 1221 (10th Cir.2001); United States...