Lytes v. Dc Water and Sewer Authority

• Citation: 572 F.3d 936
• Decision Date: 21 July 2009
• Docket Number: No. 08-7002.,08-7002.
• Parties: Floyd E. LYTES, Appellant v. DC WATER AND SEWER AUTHORITY, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

572 F.3d 936

Floyd E. LYTES, Appellant v. DC WATER AND SEWER AUTHORITY, Appellee.

No. 08-7002.

United States Court of Appeals, District of Columbia Circuit.

Argued February 10, 2009.

Decided July 21, 2009.

Appeal from the United States District Court for the District of Columbia (No. 05cv00402).

Jeannine M. Kenney, Student Counsel, argued the cause as amicus curiae in support of appellant. With her on the briefs were Steven H. Goldblatt, appointed by the court, Charlotte Garden, Supervising Attorney, and Daniel R. Kahan, Student Counsel.

Floyd E. Lytes, pro se, was on the brief for appellant.

Lesley A. Pate argued the cause for appellee. With her on the brief were Robert G. Ames and Trevor S. Blake.

Before: GINSBURG, TATEL, and BROWN, Circuit Judges.

Opinion for the Court filed by Circuit Judge GINSBURG.

GINSBURG, Circuit Judge:

Floyd E. Lytes sued his former employer, the District of Columbia Water and Sewer Authority, a/k/a WASA, alleging it refused to accommodate his disability and then terminated his employment, in violation of the Americans with Disabilities Act of 1990(ADA). The district court granted summary judgment to the Authority because it concluded no reasonable jury could find Lytes was disabled when the alleged discrimination occurred. While Lytes's appeal was pending, the ADA Amendments Act of 2008 became law. We hold the Amendments do not apply retroactively and, applying the pre-Amendments ADA, affirm the judgment of the district court because, based upon record evidence, no reasonable jury could find Lytes was disabled when he was refused accommodation and discharged.

I. Background

The pre-Amendments ADA protected a "qualified individual with a disability" from discrimination in the "terms, conditions, and privileges of employment," 42 U.S.C. § 12112(a) (2000), including an employer's refusal to "mak[e] reasonable accommodations" for an individual's disability, id. § 12112(b)(5)(A). As relevant here, an individual was disabled if he had "a physical or mental impairment that substantially limit[ed] [him in] one or more ... major life activities [MLAs]," i.e., was actually disabled, or if he was "regarded as having such an impairment." Id. § 12102(2)(A) & (C).

In May 2000, Lytes, a plant operator, injured his back while at work. He was diagnosed with chronic degenerative disc disease and underwent corrective surgery. Lytes stopped working around December 2000, at which time he began receiving workers' compensation. Two months later he had a heart attack and underwent angioplasty, followed in June 2002 by spinal fusion surgery designed to relieve pain in his back and legs.

A physician who twice examined Lytes at the request of the Authority's workers' compensation insurance carrier disagreed with Lytes's orthopedic surgeon, Dr. James Tozzi, regarding Lytes's physical capabilities. Accordingly, the WASA asked Dr. Tozzi to authorize a functional capacity evaluation (FCE). The FCE was done in February 2003 and indicated Lytes had "mild restricted standing and walking tolerances" and limitations in "squatting, bending, ladder climbing, and overhead reaching." These functional deficits placed Lytes "at the sedentary-light physical demand level with ... a workplace tolerance of 8 hours."

Dr. Tozzi noted progressive improvement in Lytes's condition after the FCE. In September 2003 he upgraded Lytes to light duty with limitations imposed "primarily to avoid recurrent injury" to Lytes's spine. The next day Lytes met with the Authority's risk manager, who told him light duty was unavailable and encouraged him to continue to collect workers' compensation, which he did.

In a December 2003 letter the WASA informed Lytes he was medically disqualified from returning as a plant operator and had 60 days to find a suitable position at the Authority. When Lytes was unable to do so, the WASA terminated his employment in a March 2004 letter. Lytes filed a charge of disability discrimination, which the Equal Employment Opportunity Commission dismissed. Thereafter Lytes, who was then represented by counsel, sued the Authority, claiming violations of the ADA, several other statutes, and the WASA's collective bargaining agreement, and requested retrospective relief, including compensatory damages and back pay.

Only Lytes's ADA claim is at issue in this appeal. In the district court the Authority moved for summary judgment on that claim, arguing no reasonable jury could find Lytes was disabled when he was refused accommodation and discharged. Lytes focused his response upon the argument that the Authority's risk manager perceived him to be disabled, but also alleged, without pointing to any evidence in the record, he was actually disabled because of restrictions on bending, "carry[ing] heavy weights," reaching and twisting, and mowing the lawn "for long periods." The district court rejected Lytes's "`perceived disability' theory" and held the work restriction and limitations on household chores could not support a finding that Lytes was actually disabled. See 527 F.Supp.2d 52, 59-62 (2007).

Lytes appealed pro se. This court appointed Steven H. Goldblatt, Director of the Appellate Litigation Program at Georgetown University Law Center, as amicus curiae to support his position, and Lytes filed a letter stating he would rely upon the submissions of the amicus.

On September 25, 2008 the Congress enacted the ADA Amendments Act of 2008 (ADAA) in order to "reinstat[e] a broad scope of protection" under the ADA and to "reject" the holdings in Toyota Motor Mfg., Ky. v. Williams, 534 U.S. 184, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002), and Sutton v. United Air Lines, 527 U.S. 471, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999). ADAA § 2(b), Pub.L. No. 110-325, 122 Stat. 3553, 3554. The Congress delayed the effective date of the ADAA to January 1, 2009. Id. § 8, 122 Stat. at 3559.

II. Analysis

Citing the ADAA, the amicus challenges only the district court's holding Lytes was not actually disabled. We review the judgment of the district court de novo, see Taylor v. Small, 350 F.3d 1286, 1290 (D.C.Cir.2003), but consider first whether, as the amicus maintains, the ADAA applies retroactively.

A. Retroactivity

In Landgraf v. USI Film Products, 511 U.S. 244, 280, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), the Supreme Court reaffirmed the judicial presumption against applying a statute that "would impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to [completed] transactions." Landgraf and its sequelae prescribe a process for determining whether a statute applies to past conduct. We first look for an "express command" regarding the temporal reach of the statute, id., or, "in the absence of language as helpful as that," determine whether a "comparably firm conclusion" can be reached upon the basis of the "normal rules of [statutory] construction." Fernandez-Vargas v. Gonzales, 548 U.S. 30, 37, 126 S.Ct. 2422, 165 L.Ed.2d 323 (2006) (quoting Lindh v. Murphy, 521 U.S. 320, 326, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997)). If we cannot reach a firm conclusion, then we turn to judicial default rules, asking whether applying the statute "would have a retroactive consequence in the disfavored sense of `affecting substantive rights, liabilities, or duties [on the basis of] conduct arising before [its] enactment.'" Id. (quoting Landgraf, 511 U.S. at 278, 114 S.Ct. 1483). If applying the statute would have such a disfavored effect then we do not apply it absent clear evidence in the legislative history that the Congress intended retroactive application. See Landgraf, 511 U.S. at 280, 114 S.Ct. 1522; Summers v. U.S. Dep't of Justice, 569 F.3d 500, 504 (D.C.Cir.2009); Koch v. SEC, 177 F.3d 784, 786 n. 3 (9th Cir.1999).

The amicus does not argue the Congress clearly answered the retroactivity question. Instead, he contends the Congress left to the courts the task of distinguishing between provisions of the ADAA that "alter settled law," and therefore are subject to the presumption against retroactivity, and those that merely clarify the law and therefore guide our interpretation of the ADA. See Cookeville Reg'l Med. Ctr. v. Leavitt, 531 F.3d 844, 849 (D.C.Cir.2008); see also Red Lion Broad. Co. v. FCC, 395 U.S. 367, 380-81, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969). Chief among the clarifying provisions, he argues, is § 4 of the ADAA, which newly designates lifting, bending, and working as MLAs and directs us to construe the ADA "in favor of broad coverage of individuals." 122 Stat. at 3555 ("major life activities include, but are not limited to, ... lifting, bending, ... and working").

The Authority argues the Congress, by delaying the effective date of the statute, mandated purely prospective application of the ADAA. See id. § 8, 122 Stat. at 3559 ("This Act and the amendments made by this Act shall become effective on January 1, 2009"). In the alternative the Authority argues the presumption against retroactivity applies because the ADAA changed settled law by repudiating what the Supreme Court described in Toyota as the "demanding standard for qualifying as disabled." 534 U.S. at 197, 122 S.Ct. 681; see ADAA § 2(b)(4), 122 Stat. at 3554 (stating one purpose of ADAA is to overrule Toyota); id. § 4(a), 122 Stat. at 3555 (directing courts to interpret the phrase "`substantially limits' ... consistently with the findings and purposes of the [ADAA]").

We agree with the Authority's principal point: By delaying the effective date of the ADAA, the Congress clearly indicated the statute would apply only from January 1, 2009 forward. If the Congress intended merely to "clarify" the ADA, then its decision to delay the effective date would make no sense; it would needlessly have left the ADA unclear for the more than three months between enactment of the ADAA on September 25, 2008 and its going into effect on January 1, 2009. Nothing on the face of the statute indicates the...