Kirkingburg v. Albertson's, Inc.

• Decision Date: 01 July 1998
• Docket Number: No. 96-35002,96-35002
• Citation: 143 F.3d 1228
• Parties: 8 A.D. Cases 180, 12 NDLR P 196, 98 Cal. Daily Op. Serv. 3544, 98 Cal. Daily Op. Serv. 5203, 98 Daily Journal D.A.R. 4874, 98 Daily Journal D.A.R. 7309 Hallie KIRKINGBURG, Plaintiff-Appellant, v. ALBERTSON'S, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1228

143 F.3d 1228

8 A.D. Cases 180, 12 NDLR P 196, 98

Cal. Daily Op. Serv. 3544,

98 Cal. Daily Op. Serv. 5203,

98 Daily Journal D.A.R. 4874,

98 Daily Journal D.A.R. 7309

Hallie KIRKINGBURG, Plaintiff-Appellant, v. ALBERTSON'S, INC., Defendant-Appellee.

No. 96-35002.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 8, 1997.

Decided May 11, 1998.

As Amended July 1, 1998.

Scott N. Hunt (argued), Richard C. Busse, Busse & Hunt, Portland, Oregon, for the plaintiff-appellant.

Corbett Gordon, Portland, Oregon, for the defendant-appellee.

Appeal from the United States District Court for the District of Oregon; Owen M. Panner, District Judge, Presiding. D.C. No. CV-95-549-PA.

Before: GOODWIN, REINHARDT, and RYMER, Circuit Judges.

REINHARDT, Circuit Judge:

Hallie Kirkingburg, a monocular-visioned truck driver, filed an action in district court alleging that his employer, Albertson's, Inc. discriminated against him on account of his visual disability in violation of the Americans with Disabilities Act ("ADA" or "the Act"). 42 U.S.C. § 12112(a) (1994). Albertson's moved for summary judgment, arguing that Kirkingburg had not established a prima facie case under the ADA. The district court agreed with Albertson's and granted summary judgment in its favor. Kirkingburg appeals. We hold that the granting of summary judgment to Albertson's was erroneous.

The Facts

Since 1979, Hallie Kirkingburg has been driving commercial trucks. His driving record is impeccable--he has been in only one accident, which was determined to be not his fault, and he has received no citations for moving violations. In 1990, Albertson's hired Kirkingburg as a driver at its distribution center in Portland, Oregon. Prior to starting work for Albertson's, Kirkingburg was examined by a physician who certified that his vision met the requirements established under Department of Transportation ("DOT") regulations. ¹ Kirkingburg also performed well on a 16-mile road test that Albertson's administered before it offered him the job. Following the road test, Albertson's transportation manager stated that "It is my considered opinion that [t]his driver possesses superior driving skill to operate safely the type of commercial vehicles listed above." Several months into the job, Kirkingburg was again examined by a physician and his vision was recertified. ² Notwithstanding these medical certifications, the visual acuity of Kirkingburg's left eye is, and has been since birth, rated 20/200, well below what the general DOT regulations require. The poor vision in his left eye is caused by amblyopia, a condition commonly referred to as "lazy eye," which cannot be corrected. His right eye, however, has a visual acuity rating of 20/20 (with corrective lenses). In short, Kirkingburg's vision is monocular.

In late 1991, after he had been on the job for over a year, Kirkingburg suffered a nondriving, work-related injury when he fell from a truck. As a result of the accident, he did not return to work for almost a year. Albertson's policies require employees who are resuming work after a long-term absence to secure recertification under the DOT standards, and in November 1992, Kirkingburg's vision was again examined. This time, the examining physician correctly determined that the vision in Kirkingburg's left eye was 20/200. Accordingly, the doctor refused to certify him under the DOT regulations and informed Albertson's of these findings.

When Kirkingburg was denied DOT certification, he applied for a waiver of the regular vision requirements under the Federal Highway Administration's ("FHWA") vision waiver program, which was instituted in order to bring DOT's standards into compliance with the ADA without sacrificing highway safety. The establishment of this program fulfilled Congress's expectation that DOT would revise its safety regulations in order to end unfounded discrimination against drivers with visual disabilities. See generally Rauenhorst v. United States Dep't of Transp., Fed. Highway Admin., 95 F.3d 715 (8th Cir.1996) (detailing the history of the FHWA vision waiver program). Under the program, FHWA makes vision waivers available to certain experienced commercial truck drivers who have clean driving records.

In order to obtain a vision waiver under the FHWA program, the applicant, among other things, is required to establish that he has three years of recent experience driving a commercial vehicle without (1) license suspension or revocation, (2) involvement in a reportable accident in which the applicant received a citation for a moving violation, and (3) more than two convictions for any other moving violation in a commercial vehicle. 57 Fed.Reg. 31,458 (1992). In addition, the applicant is required to present proof from an optometrist certifying that his visual deficiency has not worsened since his last examination, that the vision in one eye at least is correctable to 20/40, and that he is "able to perform the driving tasks required to operate a commercial motor vehicle." Id. at 31,460. In other words, DOT will waive its regular vision requirements for commercial vehicle drivers, such as Kirkingburg, who have monocular vision, are able to drive well despite that disability, and have good driving records.

Kirkingburg informed Albertson's that he had applied for a waiver under the program, but Albertson's explained that it would not accept a waiver because it had a policy of employing only drivers who "meet or exceed the minimum DOT standards." Consequently, Albertson's fired Kirkingburg from his position as a truck driver. Several months later, when Kirkingburg informed Albertson's that he had in fact obtained a vision waiver, Albertson's once again refused to accept it and declined to reconsider his termination. Kirkingburg brought suit, alleging that Albertson's discriminated against him in violation of the ADA.

DISCUSSION

The Americans with Disabilities Act

When Congress enacted the Americans with Disabilities Act in 1990, it sought to eliminate the barriers that prevent disabled individuals from becoming fully participating members in all aspects of their communities, particularly in the area of employment. In furtherance of Congress's expansively stated goal of equality, the Act prohibits covered employers from engaging in employment practices that discriminate against individuals with disabilities. Specifically, the ADA prohibits employers from discriminating "against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a) (1994). The ADA contemplates that a person with a disability will be evaluated on the basis of his individual capabilities, not on the basis of society's biases or an employer's preconceptions.

In this case, Kirkingburg claims that his employer violated the ADA by firing him because of his visual disability. In order to survive a motion for summary judgment, Kirkingburg must demonstrate a genuine issue of material fact regarding: (1) whether he is a disabled person within the meaning of the ADA; (2) whether he is otherwise qualified for the position, that is, whether he is able to perform the essential functions of the job, with or without reasonable accommodation; and (3) whether the employer terminated him because of his disability. Kennedy v. Applause, Inc., 90 F.3d 1477, 1481 (9th Cir.1996). Albertson's contends that Kirkingburg is not entitled to relief under the ADA because he is neither disabled nor an otherwise qualified individual. We examine whether Albertson's has established that it is entitled to summary judgment with respect

to these two elements of Kirkingburg's ADA claim. ³

1. Disabled

Albertson's first contends that Kirkingburg failed to raise a genuine issue of fact regarding whether he is disabled within the meaning of the ADA. We disagree with Albertson's argument that anything short of "legal blindness" in both eyes is insufficient to establish a disability under the ADA--it is clear that a person who is blind or practically blind in one eye is disabled within the meaning of the Act.

In determining what constitutes a disability under the ADA, we are guided by the definition of the term in the statute, which states that a "disability" is:

(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). The implementing regulations further clarify the statutory definition of a disability. Under the regulations, an impairment is substantially limiting if it "significantly restricts as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity." 29 C.F.R. § 1630.2(j)(1)(ii) (1993) (emphasis added). Major life activities include "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." Id. at § 1630.2(i) (emphasis added). In addition, the regulations enumerate the following factors that should be considered in determining whether an individual is substantially limited in a major life activity: "(1) the nature and severity of the impairment; (2) the duration or expected duration of the impairment; and (3) the permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment." Id. at § 1630.2(j)(2).

Kirkingburg has presented uncontroverted evidence showing that he suffers from amblyopia, a condition resulting in his being almost totally blind in...