Injured Employee Gets a Jury Trial After His Employer Denies Previously Approved Transfer and Requests a Resignation.

Category: Client Update
Date: Dec 3, 2018 06:53 PM

The U.S. Court of Appeals for the Ninth Circuit found that an employee presented enough evidence to survive summary judgment and have his case heard by a jury. 

Herman Nunies was a delivery driver for HIE Holdings, Inc. (“HIE”).  His job duties included operating a vehicle, loading and unloading five-gallon water bottles, and carrying and lifting heavy items.  Nunies allegedly requested, and was approved to be transferred to a part-time warehouse positon, but HIE denied his request and forced him to resign after he reported that he had incurred a shoulder injury.  Nunies sued, claiming that HIE had discriminated against him in violation of the ADA, because of a perceived physical disability. 

To prevail on his claim of disability discrimination, Nunies was required to present evidence that he was regarded as having a physical impairment (as defined in the ADA), that he was qualified for the part-time position, and that HIE denied him the transfer and forced him to resign because of the impairment.

An individual is protected by the ADA if the individual is “regarded as” having a physical impairment. 

An individual meets the requirement of “being regarded as having such an impairment” if the individual establishes that he or she has been subjected to an action prohibited [by the ADA] because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.

The parties disputed whether HIE “regarded” Nunies as an individual with a disability due to his shoulder injury.  The trial court granted summary judgment in favor of HIE and dismissed Nunies’ claims.   

On Nunies’ appeal, the Ninth Circuit applied the employee-friendly summary judgment standard that requires a court to view the evidence in the light most favorable to Nunies and reversed summary judgement. 

The Ninth Circuit was persuaded by Nunies’ evidence that: on June 14th, a supervisor told Nunies that his transfer to a part-time position had been approved; three days later, Nunies informed his supervisor and manager that he injured his shoulder; and two days after learning of the injury, HIE informed Nunies that he could not transfer to a part-time position but must resign due to budget cuts.  There was also evidence that on June 26th, HIE posted an opening for a part-time warehouse position.  On June 27th, one day after posting the position, HIE’s termination report listed Nunies as having “resigned.”  Thereafter, Nunies was diagnosed with a partial tear of his left shoulder.  HIE presented evidence that Nunies requested transfer to a part-time position to have more time to focus on his side business.

Viewing this evidence favorably to Nunies, the court noted that a jury could reasonably conclude that HIE misrepresented that the part-time warehouse position was no longer available.  A jury could also reasonably find that HIE forced Nunies to resign because of his shoulder injury given that Nunies’ request to transfer to a part-time position was approved, and then rescinded shortly after Nunies reported his injury.  Finally, the court noted that under the ADA, an employee need not prove that the employer subjectively believes the employee is substantially limited in a major life activity in order to be protected by the ADA.  The trial court was wrong to require Nunies to do so. Thus, the Ninth Circuit reversed the trial court’s decision granting summary judgment for HIE and allowed Nunies to try his claims to a jury.

Nunies v. HIE Holdings, 908 F.3d 428 (9th Cir. 2018).

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