Wellington v. Lyon County School Dist.

• Decision Date: 23 August 1999
• Docket Number: I-,D,No. 97-17366,97-17366
• Citation: 187 F.3d 1150
• Parties: (9th Cir. 1999) MICHAEL WELLINGTON, an individual, Plaintiff-Appellant, v. THE LYON COUNTY SCHOOL DISTRICT, a Lyon County Subdivision; THE LYON COUNTY BOARD OF TRUSTEES, a Lyon County Subdivision; NAT LOMMORI, an individual; DOESefendants-Appellees
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1150

187 F.3d 1150 (9th Cir. 1999)

MICHAEL WELLINGTON, an individual, Plaintiff-Appellant, v. THE LYON COUNTY SCHOOL DISTRICT, a Lyon County Subdivision; THE LYON COUNTY BOARD OF TRUSTEES, a Lyon County Subdivision; NAT LOMMORI, an individual; DOES I-X, Defendants-Appellees.

No. 97-17366

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted February 10, 1999

Filed August 23, 1999

Carl F. Hylin and John N. Schroeder, Reno, Nevada, for the plaintiff-appellant.

Michael A. Nivinskus and C. Robert Cox, Walther, Key, Maupin, Oats, Cox, Klaich & LeGoy, Reno, Nevada, for the defendants-appellees.

Appeal from the United States District Court for the District of Nevada Edward C. Reed, Jr., District Judge, Presiding. D.C. No. CV-95-00588-ECR.

Before: Phyllis A. Kravitch,¹ Stephen Reinhardt, and Thomas G. Nelson, Circuit Judges.

Opinion by Judge T.G. Nelson

OPINION

T.G. NELSON, Circuit Judge:

Michael Wellington appeals the district court's grant of summary judgment in favor of the Lyon County School District ("School District") on his claim that the School District violated the Americans With Disabilities Act of 1990 (the "ADA"), 42 U.S.C. SS 12101-12231, when it terminated his employment. We have jurisdiction under 28 U.S.C.S 1291. We reverse.

I.

Wellington was hired to perform maintenance for the School District in 1989. In August 1992, he developed carpal tunnel syndrome due to the repeated motion with tools and pulling on his wrists that he encountered in his maintenance position. The carpal tunnel syndrome caused pain, weakness and numbness in Wellington's hands, arms and shoulders. In September 1992, Wellington went on worker's compensation leave under the Nevada State Industrial Insurance System ("SIIS").

For the first few months Wellington was on leave, he regularly golfed and bowled. Wellington's doctor then advised him to not participate in these activities, and Wellington stopped. In January 1993, Wellington underwent surgery to alleviate his condition, and in March 1993, he was released by his doctor to return to work.

By August 1993, Wellington's symptoms returned, and he again went on SIIS leave. While on leave the second time, he was examined by Dr. Christensen who determined that even with additional surgery, Wellington would be permanently limited to "lighter type activities." Dr. Christensen prescribed limitations on the lifting activity Wellington could engage in at work as follows:

"occasional" (i.e. 1% to 33% of an eight hour work day) lifting of 20 pounds; "frequent" (i.e. 34% to 66% of an eight hour work day) lifting of 10 pounds; avoid highly repetitive activities.

In accordance with these limitations, when Wellington returned to work for the School District in the spring of 1994, he was assigned to fill temporary light duty positions. Wellington was initially assigned a "mail run" job as a courier, and was later assigned to assist in setting up a school district safety program.

On June 21, 1994, SIIS wrote a letter to the School District informing the School District that, in view of the limitations prescribed by Dr. Christensen, Wellington would not be "able to return to [his prior] job unless it is modified." SIIS also informed the School District that if it could not provide an appropriate position for a person of Wellington's physical limitations, Wellington would need to be trained for a new job. SIIS gave the School District thirty days to notify SIIS of its intent to offer Wellington an appropriate position.

The Lyon County Board of School Trustees ("Board") met in a closed session on July 12, 1994, to discuss whether Wellington's job with the safety program should be made into a permanent position. At this meeting, School District superintendent Nat Lommori briefly explained Wellington's history and the notice from SIIS stating:

We are down to the fish or cut bait time with [Wellington]. We have gotten the notice that we can either offer him a job that meets his essential functions as [SIIS] calls it, or we can have him go away and we will pay for retraining and all of those things in his future until he is permanently employed some where else.

Lommori also mentioned that there were some concerns surrounding Wellington's claim of a disability, explaining:

Let me tell you, we've questioned [his injury caused by carpel tunnel syndrome]. Anyhow, what we can do is I guess we have two options--one we can keep the man and put him in that kind of job he is working now, kind of a light duty position. . . . Then all of the training and everything else will still be on us but at least we would get the benefit of that. The only prob lem I have, and I've discussed this with [Welling ton], is over this last two year period of time he has had two major times off. His first time off we had some problems because he was bowling and playing golf. We're not doctors, but we are telling you perception-wise you're killing yourself with your fellow employees when you're out there doing these kinds of activities and out with that kind of an injury.

Lommori acknowledged to the Board that there were certain benefits, as well as drawbacks, to having Wellington fill a safety position:

[T]here are some positives to that because [Welling ton] has knowledge of construction trades and he could go around to all of our schools and help them understand where we have some unsafe conditions and such and how we can improve that. That would be playground equipment, all those kinds of things, bleachers and such. The negative part of this, though, is I think that he is going to have a problem with some of his fellow employees in the district because there have been several of them that think he's milked the system and he kind of hurt himself in their eyes and he would have to overcome that. I've talked to him about that--if we even consider [him] that would be a problem.

When asked whether the Board would be creating a job to find a position for Wellington, Lommori replied:"This is creating a job. One way or the other we are creating a job. But it's one job that we need to have done in this district right now."

Another administrator, Mary Goodman, mentioned other benefits to hiring Wellington for the safety position, stating:

His attitude has been very good since he has been back and he's really done a lot of research finding out exactly what OSHA requirements are and what not, and he is becoming quite knowledgeable already in what we need to do and he has somewhat of a rap port with the OSHA representatives.

A member of the Board also expressed his support for Wellington, stating that despite the appearance that "he was milking the system," Wellington is a loyal employee. I do believe [Wellington ] will give you 110% and as I understand it a lot of what was happening was the doctors telling him you can't go to work, but do what you want to do. I think he made a mistake by bowling and golfing. I agree with you wholeheartedly, but by the same token he was told not to go to work. The point I am trying to make is I like [Wellington]. When he was working full time he was a dedicated employee.

Another member of the Board also expressed his approval for hiring Wellington for the safety position, stating: "If you go along with a program like this what you do is you do tend to spend an equal amount of money in training, but you receive a loyal employee. I don't think our chances of losing are very good. Our chances of winning are very good."

Despite all of the positive considerations expressed for placing Wellington in a permanent safety position, at least one Board member expressed reservations, asking: "What's the possibility of setting a precedent for another employee to decide, `well, I'll get myself a cushy job.' "

At the end of the meeting, the Board had failed to reach a consensus on whether to hire Wellington for a permanent safety position, and the matter appears to have been left in the hands of Lommori. Lommori ultimately decided not to offer Wellington a permanent position in the safety program, and Wellington's employment with the School District was terminated on July 20, 1994.)²

On July 26, 1994, the Board held another meeting where it followed up on Wellington's case. At this meeting, Lommori reported:

After a week of deliberation in my office of listening to several folks, I decided it would be best for the entire district not to offer the position and have [Wellington] go into SIIS and get into the rehab/ retraining program. It appeared that there was enough concern with our other folks already in the district. I don't want to put a pebble in everybody's shoe and have them get a blister over this whole thing when I think things are going pretty well in the district. I just don't want to upset the apple cart.

In August 1994, Wellington filed a complaint with the Nevada Equal Rights Commission. After receiving a right to sue letter, he filed a complaint in district court alleging that the School District violated the ADA when it terminated his employment. The district court granted summary judgment in favor of the School District. Wellington timely appeals.

II.

A grant of summary judgment is reviewed de novo . Margolis v. Ryan, 140 F.3d 850, 852 (9th Cir. 1998). Summary judgment is proper only if, viewing the evidence in the light most favorable to the party opposing the motion, the court finds that no genuine issue of material fact exists, and that the movant is entitled to judgment as a matter of law. See Thompson v. Holy Family Hosp., 121 F.3d 537, 539 (9th Cir. 1997). A genuine issue of material fact exists if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

III.

To survive a motion for summary judgment on his ADA claim, Wellington must be able to show sufficient facts to meet his burden of production of evidence on each element of the prima facie...