Head v. Glacier Northwest, Inc.

• Decision Date: 06 July 2005
• Docket Number: No. 03-35567.,03-35567.
• Citation: 413 F.3d 1053
• Parties: Matthew HEAD, Plaintiff-Appellant, v. GLACIER NORTHWEST, INCORPORATED, a Washington corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

413 F.3d 1053

Matthew HEAD, Plaintiff-Appellant, v. GLACIER NORTHWEST, INCORPORATED, a Washington corporation, Defendant-Appellee.

No. 03-35567.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 8, 2004.

Filed July 6, 2005.

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Scott N. Hunt, Busse & Hunt, Portland, OR, for the plaintiff-appellant.

William T. Grimm, Davis Grimm Payne & Marra, Seattle, WA, for the defendant-appellee.

Appeal from the United States District Court for the District of Oregon; Malcolm F. Marsh, District Judge, Presiding. D.C. No. CV-02-00373-MA.

Before: T.G. NELSON and RAWLINSON, Circuit Judges; and SCHWARZER,^* Senior District Judge.

SCHWARZER, Senior District Judge.

Matthew Head appeals the district court's grant of partial summary judgment in his action against his former employer, Glacier Northwest ("Glacier"), on his claims for disability discrimination under the Americans with Disabilities Act ("ADA") and Oregon state law on the basis of disability and record of disability. Head also appeals the district court's exclusion of lay opinion testimony during the trial on his perceived disability and retaliation claims. Finally, Head challenges the district court's jury instructions requiring him to demonstrate that Glacier discriminated against him "because of" his perceived disability and retaliated against him "because" of his request for an accommodation. We have jurisdiction pursuant to 28 U.S.C. § 1291. We reverse the grant of summary judgment, affirm the exclusion of lay opinion testimony, vacate the jury verdict, and remand for further proceedings consistent with this opinion.

I. FACTS AND PROCEDURAL HISTORY

On June 29, 2001, Glacier, Matthew Head's employer, terminated him after he got a loader he was operating stuck in the mud. The loader had to be extracted by another piece of equipment. In terminating Head, Glacier cited damage to the loader in violation of an equipment abuse policy issued in 2000. It was undisputed that Head had received this policy.

In early 2001, prior to his termination, Head was diagnosed with depression or bipolar disorder. Head informed Glacier of this diagnosis. At the time of his diagnosis, Head worked graveyard shift as a barge offloader. Head subsequently missed almost two months of work because of his disability. Head requested, and was granted, a Family Medical Leave of Absence for this time period. Although Head returned to work in May 2001, his doctors restricted him from working more than 12 hours per day or 48 hours per week. The doctors also limited Head to working only the day shift.

After his termination, Head filed numerous claims in federal district court. Of relevance to this appeal were Head's claims under the ADA and Oregon law for disability discrimination based on Head's disability, record of disability, or perceived disability, and for retaliation for requesting an accommodation. Glacier moved for summary judgment. In opposition to Glacier's motion, Head did not submit medical or comparative evidence in support of his claims, but did submit numerous affidavits and other evidence. Ultimately, the district court granted partial summary judgment in favor of Glacier on Head's discrimination claims based on disability and a record of disability. The court reasoned that Head had failed to demonstrate a genuine issue of material fact regarding substantial impairment because he did not present any medical or comparative evidence to support his claims that his disability substantially impaired any major life activities.

The remainder of Head's claims, for (1) discrimination under the ADA and Oregon law for perceived disability, and (2) retaliation under the ADA and Oregon law for requesting an accommodation, went to trial. The rest of the issues on appeal relate to facts that occurred during the trial.

During the trial, Head's counsel asked a lay witness the following question about the incident with the loader that preceded Head's termination: "Was there anything about the position where Mr. Head was stuck or the location of the loader in the material it was stuck in that caused you to believe that he had violated the equipment abuse policy?" Glacier's counsel objected. The district court sustained the objection based on its earlier decision that lay opinion testimony regarding whether Head's getting the loader stuck constituted equipment abuse would not be allowed. The district court believed that such testimony should not be allowed under Federal Rule of Evidence 701. Accordingly, the witness did not answer counsel's question.

As the trial neared its conclusion, the court and parties discussed the jury instructions. Of primary concern was whether to give a single-motive "because of" instruction or a mixed-motive "motivating factor" instruction for Head's state and ADA-based discrimination and retaliation claims. Relying on Costa v. Desert Palace, Inc.,¹ a Title VII case, the district court concluded that single-motive "because of" instructions were appropriate.² The jury instruction for disability discrimination therefore required Head to prove that Glacier terminated him "because of" his perceived disability. The jury instruction for retaliation due to a request for accommodation therefore required Head to prove that Glacier discharged him solely "because" he requested a reasonable accommodation. The jury returned a verdict in favor of Glacier.

Head now appeals the district court's partial grant of summary judgment, the district court's exclusion of lay witness testimony regarding whether he violated the equipment abuse policy, and the jury instructions. Head argues that the district court erred by requiring medical and comparative evidence to substantiate the substantial impairment of major life activities at the summary judgment stage. We agree and reverse and remand as to this issue. Head argues that the district court improperly excluded the lay witness testimony. We disagree and affirm as to this issue. Finally, Head argues that the district court erred by giving "because of" and "because" jury instructions rather than "motivating factor" instructions. We agree, vacate the jury verdict, and remand as to this issue.

II. SUMMARY JUDGMENT

We review the district court's grant of summary judgment de novo.³ We only review "`evidence available to the [district] court at the time the motion was made.'"⁴ The facts must be viewed in the light most favorable to Head.⁵

We hold that Ninth Circuit precedent does not require comparative or medical evidence to establish a genuine issue of material fact regarding the impairment of a major life activity at the summary judgment stage. Rather, our precedent supports the principle that a plaintiff's testimony may suffice to establish a genuine issue of material fact. McAlindin v. County of San Diego⁶ and Fraser v. Goodale are illustrative.

In McAlindin, we discussed medical evidence, but did not explicitly or otherwise require it.⁷ In fact, we held that a statement in a declaration by McAlindin alone sufficed to raise a genuine issue of material fact regarding the impairment of a major life activity: his ability to engage in sexual relations.⁸ Additionally, McAlindin's declaration played a central role in our holding that sufficient evidence supported the existence of a genuine issue of material fact as to his sleeping claim.⁹ Finally, although we discussed doctors' evaluations of McAlindin's inability to interact with others, we held that "[h]is alleged `fear reaction' and `communicative paralysis' are sufficiently severe to raise a genuine issue of material fact about his ability to interact with others."¹⁰ Granted, this holding regarding the inability to interact with others relied more on medical testimony than did our conclusions regarding the other two major life activities, but we did not require medical testimony.

Fraser also did not require medical or comparative evidence at the summary judgment stage. In Fraser, a diabetic argued that her diabetes substantially limited the major life activities of eating, caring for herself, and thinking and communicating.¹¹ After determining that under certain circumstances eating is a major life activity, we held that Fraser's presentation of evidence about her demanding and highly difficult treatment regimen precluded a grant of summary judgment.¹² The evidence on which we relied consisted primarily of Fraser's testimony regarding her dietary regime. We also considered some medical testimony that even if Fraser perfectly followed her regime she could still have complications; however, we placed no emphasis on this medical testimony.¹³ Thus, Fraser indicates that medical testimony may be helpful, but it is not required.

Additionally, in rejecting Fraser's claim that she was substantially limited in caring for herself and thinking and communicating, we faulted the quantity of the evidence presented, not the nature of it.¹⁴ We concluded that although Fraser's statements showed the effects on these life activities, there was insufficient "evidence that she is so unsuccessful in monitoring her blood sugar levels that she is substantially limited in [these major life activities]."¹⁵ Accordingly, Fraser supports the principle that a plaintiff's testimony may suffice to establish a genuine issue of material fact. Consequently, it follows that comparative or medical evidence at the summary judgment stage is not required. We hasten to add that our holding in no way impugns our longstanding precedent that conclusory declarations are insufficient to raise a question of material fact.¹⁶ To survive summary judgment, an affidavit supporting the existence of a disability must not be merely self-serving and must contain sufficient detail to convey the existence of an impairment.¹⁷

Because we conclude that plaintiffs need not supply comparative or medical evidence if they provide other adequate evidence, we must...