Kennedy v. Applause, Inc.
| Decision Date | 31 July 1996 |
| Docket Number | 95-55549,Nos. 95-55017,s. 95-55017 |
| Citation | 90 F.3d 1477 |
| Parties | , 5 A.D. Cases 1249, 18 A.D.D. 400, 8 NDLR P 232, 96 Cal. Daily Op. Serv. 5647, 96 Daily Journal D.A.R. 9197 Kathlyn M. KENNEDY, Plaintiff-Appellant, v. APPLAUSE, INC., Defendant-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Michele S. Johnson, Thousand Oaks, California, for plaintiff-appellant.
William S. Waldo and E. Jeffrey Grube, Paul, Hastings, Janofsky & Walker, Los Angeles, California, for defendant-appellee.
Douglas S. McDowell and Ann Elizabeth Reesman, McGuiness & Williams, Washington, DC, for amicus curiae.
Appeals from the United States District Court for the Central District of California, Stephen V. Wilson, District Judge, Presiding. D.C. No. CV-94-05344-SVW(GK).
Before: NOONAN, THOMPSON and HAWKINS, Circuit Judges.
Kathlyn M. Kennedy has Chronic Fatigue Syndrome. Her condition required her to take a three-month medical disability leave from work. One month after she returned to work, her condition again deteriorated and she took another medical leave. Her employer, Applause, Inc., fired her.
Kennedy sued Applause in the district court, alleging that Applause violated the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., when it discharged her because of her disability. The district court granted summary judgment in favor of Applause. It held that Kennedy had failed to establish a necessary element of her prima facie case: that she was qualified to perform her job, with or without reasonable accommodation by her employer. 42 U.S.C. § 12111(8); 29 C.F.R. § 1630.2(m). The district court also awarded Applause attorney fees and costs.
In these consolidated appeals, Kennedy appeals the district court's summary judgment and its award of fees and costs. We have jurisdiction under 28 U.S.C. § 1291 to hear Kennedy's appeal from the district court's summary judgment. We affirm that judgment. We dismiss for lack of jurisdiction Kennedy's appeal from the district court's order granting Applause attorney fees and costs, because Kennedy's notice of appeal from that order was prematurely filed.
Applause manufactures and distributes gift and novelty items. Beginning in October 1990, Kennedy worked for Applause as a sales representative/territory manager. Her job duties entailed personally servicing the Applause accounts in the west San Fernando Valley of Los Angeles.
On August 18, 1992, Kennedy's physician, John E. Lynch, Jr., M.D., diagnosed her as suffering from "Chronic Fatigue Syndrome" and certified her as disabled from work. Kennedy was off work on medical disability leave from August 26, 1992 to November 30, 1992.
Kennedy worked for the next month at her usual job. On January 11, 1993, Dr. Lynch once again concluded she was unable to work and required a medical leave of absence. Later that day Kennedy informed her supervisor at Applause that her doctor had put her back on medical disability because of her Chronic Fatigue Syndrome.
The next day several things happened: Dr. Lynch signed a disability note which was submitted to Applause, stating that Kennedy was disabled from work until at least February 15, 1993; Kennedy signed an application for state disability benefits; and Kennedy's work supervisor, called her at home and informed her that she was fired.
In her complaint in the district court, Kennedy alleged seven causes of action: (1) violation of Title VII of the 1964 Civil Rights Act; (2) violation of the ADA; (3) violation of the California Fair Employment and Housing Act; (4) tortious discharge in violation of public policy; (5) breach of oral contract; (6) breach of implied contract; and (7) breach of the implied covenant of good faith and fair dealing.
The district court began its analysis of Kennedy's ADA claim by noting that Kennedy had the burden of demonstrating that she was a "qualified individual with a disability." The court then turned to the evidence. Kennedy's personal physician found her totally disabled from all work beginning January 11, 1993. In her deposition, Kennedy testified she was able to perform her job. The district court thought this might be enough to create a genuine issue of material fact precluding summary judgment, but there was more. Kennedy had made sworn statements on state disability benefit claim forms and Social Security Administration (SSA) claim forms that she was completely disabled for all work-related purposes.
Citing, inter alia, the First Circuit's opinion in August v. Offices Unlimited, Inc., 981 F.2d 576 (1st Cir.1992), the district court held that Kennedy's deposition testimony that she was capable of working was belied by her detailed and definite sworn statements to the contrary on her disability benefit claim forms. The court also determined that these claim-form statements, together with Dr. Lynch's opinion, established that Kennedy was totally disabled and thus there was no reasonable accommodation Applause could have made which would have enabled her to perform her job. The district court also determined that the accommodation Kennedy requested, a "work-when-able" work schedule, was unreasonable as a matter of law. The court granted Applause's motion for summary judgment on Kennedy's two federal claims and dismissed the remaining state causes of action without prejudice. 1
Applause then moved for an award of attorney fees and costs and Rule 11 sanctions. On February 6, 1995, the district court denied Applause's motion for Rule 11 sanctions, but granted in part and denied in part its motion for attorney fees. The court also granted in part Kennedy's motion to retax costs. The court did not make a final determination at that time of the amount of fees and costs it would award. Instead, it asked both parties for additional submissions.
Before the court entered its final order determining the amount of fees and costs it would award, Kennedy filed a "Notice of Amended Appeal" from the February 6, 1995 order. She filed this on March 8, 1995. The district court filed its final order on March 20, 1995. In that final order the court reduced the clerk's costs award from $6,194.84 to $4,194.84 and granted Applause attorney fees of only $324.58. Kennedy did not file a notice of appeal from the March 20 order.
We consolidated Kennedy's appeal from the district court's summary judgment, which appeal is indisputably timely, with her appeal challenging the court's award of attorney fees and costs, which appeal we conclude is not timely.
The Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq., prohibits an employer from discriminating "against a qualified individual with a disability because of the disability." 42 U.S.C. § 12112(a). Only a "qualified individual with a disability" may state a claim for discrimination. White v. York Int'l Corp., 45 F.3d 357, 360 (10th Cir.1995); Tyndall v. National Educ. Centers, Inc., 31 F.3d 209, 212 (4th Cir.1994); Jackson v. Veterans Administration, 22 F.3d In order to prevail on an employment termination claim under the ADA, a plaintiff must establish:
277, 278 (11th Cir.1994), cert. dismissed, 513 U.S. 1052, 115 S.Ct. 657, 130 L.Ed.2d 560 (1994) (Rehabilitation Act). The ADA defines "qualified individual with a disability" as an "individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8); 29 C.F.R. § 1630.2(m).
(1) that he is a disabled person within the meaning of the ADA; 2 (2)that he is qualified, that is, with or without reasonable accommodation (which he must describe), he is able to perform the essential functions of the job; and (3) that the employer terminated him because of his disability.
White, 45 F.3d at 360-61. A plaintiff bears the burden of demonstrating that she can perform the essential functions of her job with or without reasonable accommodation. Lucero v. Hart, 915 F.2d 1367, 1371 (9th Cir.1990).
Kennedy argues there were genuine issues of material fact as to the essential functions of her job. This argument misses the mark. The district court did not determine what functions of Kennedy's job were essential. It found she was totally disabled and as a result was unable to perform the job no matter what its essential functions were.
In determining that Kennedy was totally disabled from work beginning January 11, 1993, the district court relied on Dr. Lynch's deposition testimony that Kennedy was totally disabled from working either full time or part time beginning January 11, 1993, and on Kennedy's own admissions on her disability benefit claim forms. Although Dr. Lynch later cautioned that he did not see Kennedy a great deal from January 11 through May 4, 1993, his testimony is unequivocal that Kennedy was totally disabled as of January 11.
Kennedy's statements on state disability benefit and Social Security Administration (SSA) claim forms corroborate Dr. Lynch's assessment that she was totally disabled beginning January 11, 1993. On these claim forms, Kennedy represented she was completely disabled for all work-related purposes. Her deposition testimony in this case in support of her ADA claim to the effect that she was not totally disabled is uncorroborated and self-serving. Moreover, this deposition testimony flatly contradicts both her prior sworn statements and the medical evidence. 3 As such, we conclude her deposition testimony does not present "a sufficient disagreement to require submission to a jury." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 2511-12, 91 L.Ed.2d 202 (1986). There is no genuine dispute of the fact that Kennedy was totally disabled from performing her job beginning January 11, 1993.
Kennedy argues that a genuine dispute of material fact as...
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