Summers v. Teichert & Son, Inc., 96-15690

• Decision Date: 28 October 1997
• Docket Number: No. 96-15690,96-15690
• Citation: 127 F.3d 1150
• Parties: 7 A.D. Cases 830, 24 A.D.D. 737, 11 NDLR P 92, 97 Cal. Daily Op. Serv. 8258, 97 Daily Journal D.A.R. 13,363 Rick SUMMERS, Plaintiff-Appellant, v. A. TEICHERT & SON, INC., a California corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1150

127 F.3d 1150

7 A.D. Cases 830, 24 A.D.D. 737, 11

NDLR P 92,

97 Cal. Daily Op. Serv. 8258,

97 Daily Journal D.A.R. 13,363

Rick SUMMERS, Plaintiff-Appellant, v. A. TEICHERT & SON, INC., a California corporation, Defendant-Appellee.

No. 96-15690.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 6, 1997.

Decided Oct. 28, 1997.

Timothy M. Smith and Evan Eickmeyer, McKinley & Smith, Sacramento, California, for plaintiff-appellant.

Franklin G. Gumpert, Barkett, Gumpert & Reiner, Sacramento, California, for defendant-appellee.

Appeal from the United States District Court for the Eastern District of California; Edward J. Garcia, District Judge, Presiding. D.C. No. CV-94-02146-EJG.

Before: HUG, Chief Judge, CHOY and HAWKINS, Circuit Judges.

CHOY, Circuit Judge:

Plaintiff-appellant Rick Summers appeals the summary judgment granted in favor of defendant-appellee A. Teichert & Son, Inc. The district court found that there are no triable issues of fact as to whether Summers is a qualified person with a disability under the Americans with Disabilities Act, and that in any event, any failure on the part of Teichert to accommodate Summers was justified by business necessity. We have jurisdiction under 28 U.S.C. § 1291. We affirm, although on a different ground from those upon which the district court based its decision.

Factual and Procedural History

Plaintiff-appellant Rick Summers ("Summers") was hired as a truck driver for defendant-appellee A. Teichert & Son, Inc. ("Teichert") in July 1987. Summers' primary job was to drive a flatrack truck. In September 1992, Summers was seriously injured in an accident while driving one of Teichert's trucks. As a result of the accident, Summers was hospitalized for eight days and had to undergo a colostomy. Several months after the accident, Summers underwent a second surgery to reverse the colostomy.

Summers was unable to work for a year because of his injuries. In September 1993, Summers was able to return to any job with Teichert, except driving off-road equipment and working as a construction worker. Accordingly, Summers notified Teichert in September 1993 that he was ready to come back to work. In October 1993, a dispatcher telephoned Summers and asked him to come to work the next day.

For a three-week period in the fall of 1993, Summers worked for Teichert driving a flatrack truck. During the winter of 1993, Teichert experienced the usual winter shutdown due to inclement weather. In late January or early February 1994, Summers came into Teichert's work yard for three weeks without receiving any work. Summers complained to Dan Whitten, one of Teichert's dispatchers, who told Summers that there was no work available.

In May 1994, Summers was assigned to drive a water truck. Water trucks must be driven over rough terrain, often bouncing over dirt mounds. Summers aggravated his lower back condition by driving the water truck. At the end of the day, Summers telephoned his supervisor Mike Queipo and, in tears from the pain, informed Queipo that he did not want to drive a water truck again. The next day, Summers felt that he was physically able to work, though not as a water truck driver.

Between May 1994 and September 1995 Summers was not called in to work, nor was he told that work was available. Summers did not call Teichert and tell the dispatchers that he was able to work, nor did he go to the yard to wait for work. ¹ Whitten and Queipo sent Summers a disability form after the water truck incident in May 1994 and never heard from Summers.

Summers is a member of the Teamsters union. As such, he is bound by a collective bargaining agreement. Under this agreement, drivers with seniority (those hired before a certain date in 1986) must be given work assignments before drivers without seniority are given the opportunity to work. Summers is a non-seniority driver, because he was hired in 1987.

The exact procedure by which non-seniority drivers are assigned work by Teichert's dispatchers is unclear from the record. Summers claims that, if work were available for non-seniority employees, they were usually telephoned the night before by one of Teichert's dispatchers and told to come in to work the following day. Teichert claims that occasionally, non-seniority employees would be telephoned the night before, but not very often, because if the driver showed up for work but no work was in fact available, Teichert would have to pay the driver a "show up" fee. Teichert says that therefore non-seniority employees would generally come to the workyard on their own in the morning, without being called, with the hope of being assigned available work. Mike Queipo, one of Teichert's dispatchers, stated that he would telephone a driver when work became available "providing there is not somebody already at our immediate disposal in the office to grab." Dan Whitten, the other dispatcher, stated that "on occasion" he would telephone a driver the night before and ask him to come in. However, "[g]enerally, they [the drivers] will show up in the yard. They'll come in...."

Teichert hired Dan Young and Steve Farrell, both flatrack drivers, after Summers. Both Young and Farrell worked 1,800 hours or more in 1994, whereas Summers worked only 8.5 hours for Teichert in 1994. Teichert worked Young full-time after May of 1994, driving both water and flatrack trucks.

Summers returned to work for Teichert as a flatrack driver in September 1995, and has worked for Teichert consistently since that date. According to Summers, Teichert's dispatchers call him when work is available.

Summers's claim is for the two-year period between August 24, 1993 and September 1995. The district court granted Teichert's motion for summary judgment.

Standard of Review

This court reviews a grant of summary judgment de novo. Jesinger v. Nevada Fed. Credit Union, 24 F.3d 1127, 1130 (9th Cir.1994). The court must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact, and whether the district court correctly applied the relevant substantive law. Id. The court must not weigh the evidence or determine the truth of the matters asserted but must only determine whether there is a genuine issue for trial. Id. at 1131. The district court's grant of summary judgment may be affirmed if it is supported by any ground in the record, whether or not the district court relied upon that ground. Sicor Ltd. v. Cetus Corp., 51 F.3d 848, 860 n. 17 (9th Cir.1995).

According to Fed.R.Civ.P. 56(e), in response to a properly supported motion for summary judgment, the opposing party "must set forth specific facts showing that there is a genuine issue for trial." The inquiry performed by the trial court is whether there exist "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). For an issue to be "genuine," there must be evidence such that a reasonable jury could reach a verdict in favor of the nonmoving party. Id. at 248, 106 S.Ct. at 2511. Therefore, a mere "scintilla" of evidence will not be sufficient to defeat a properly supported motion for summary judgment; rather, the nonmoving party must introduce some "significant probative evidence tending to support the complaint." Id. at 252, 249, 106 S.Ct. at 2510, 2512. Summary judgment may be granted if "the evidence is merely colorable ... or is not significantly probative." Eisenberg v. Insurance Co. of North America, 815 F.2d 1285, 1288 (9th Cir.1987).

Background Law

According to the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12112(a), an employer shall not "discriminate 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." ² A "qualified individual with a disability" is a person "with a disability who with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds." 42 U.S.C. § 12111(8). In the context of the ADA, the term "disability" means: 1) "a physical or mental impairment that substantially limits one or more of the major life activities" of the person; 2) having a "record" of a physical or mental impairment that substantially limits one or more of the major life activities of the person; or 3) "being regarded as having" a physical or mental impairment that substantially limits one or more of the person's major life activities. 42 U.S.C. § 12102(2).

An employer must make "reasonable accommodation to the known physical ... limitations of an otherwise qualified ... employee with a disability, unless [the employer] can demonstrate that the accommodation would impose an undue hardship on the operation of its business." 29 C.F.R. § 1630.9(a). A reasonable accommodation is one that would "enable the [employer's] employee with a...