Appeal from the United States District Court for the District of Arizona Frederick J. Martone, District Judge, Presiding D.C. No. CV-04-03015-FJM.
The opinion of the court was delivered by: Baer, Senior District Judge
Argued and Submitted July 15, 2008 -- San Francisco, California
Before: Richard A. Paez and Marsha S. Berzon, Circuit Judges, and Harold Baer, Jr.,*fn1 Senior District Judge.
Larry Rohr appeals the district court's grant of summary judgment in favor of his former employer, Salt River Project Agricultural Improvement and Power District ("Salt River"). Rohr, who is an insulin-dependent type 2 diabetic, brought suit for employment discrimination in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101, et seq. Because the district court erred in concluding that Rohr was neither "disabled" nor a "qualified individual" under the ADA, we vacate the district court's order of summary judgment and remand for further proceedings consistent with this opinion.
At the outset, we note that on September 25, 2008, while this decision was pending, the ADA Amendments Act of 2008 ("ADAAA") was signed into law in order "[t]o restore the intent and protections of the Americans with Disabilities Act of 1990." Pub. L. No. 110-325, 122 Stat. 3553 (2008). In the ADAAA, Congress emphasizes that when it enacted the ADA in 1990, it "intended that the Act 'provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities' and provide broad coverage." Id. § 2(a)(1), 122 Stat. at 3553 (emphasis added). The ADAAA rejects the Supreme Court's interpretation of the term "disability" in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999), and Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), and thereby expands the class of individuals who are entitled to protection under the ADA. Id. § 2(b), 122 Stat. at 3553. Indeed, Congress signifies that as a result of these Supreme Court cases, "lower courts have incorrectly found in individual cases that people with a range of substantially limiting impairments are not people with disabilities." Id. § 2(a)(5), 122 Stat. at 3553.
Although the ADAAA, if applicable, would provide additional support for Rohr's claims in this case, we hold that, even under our pre-ADAAA case law, Rohr provided sufficient evidence that he was a "qualified individual" with a "disability" under the ADA to survive summary judgment. We therefore need not decide whether the ADAAA, which took effect on January 1, 2009, applies retroactively to Rohr's claims.
A. Rohr's Job at Salt River
From May 1981 to June 14, 2004, Rohr worked as a welding metallurgy specialist in the Plant Technical Support Group at Salt River, which provides utility services to homes in Arizona. [ER 2, 3.] The Plant Technical Support Group was composed of specialists in various fields, including welding metallurgy, turbines, boilers and cathodic protection, as well as the quality assurance staff. [ER 16.] The group's objective was to address problems that Salt River's power plants could not solve on their own. [ER 16.] For example, if a power plant requested a new welding procedure, the specialists in the Plant Technical Support Group would design it. [ER 17.] The Plant Technical Support Group performed audits, reviewed paperwork on the plants to determine whether any applicable code had been violated and responded to third-party inspections. Rohr characterizes the group's work as mostly "engineering-type support." [ER 17-18.]
As a metallurgy specialist, Rohr was primarily responsible for overseeing all aspects of Salt River's welding procedures, maintaining Salt River's welding manual, training all welding personnel, reviewing and auditing the work of subcontractors, ensuring that all welding procedures complied with applicable codes and specifications, advising Salt River on the purchase of new welding equipment, and counseling less experienced welders. [ER 17-19, 61.] While he often traveled to individual power plants to perform inspections and to train welders, engineers and welding inspectors [ER 19], he claims that the majority of his work was in an office environment. [ER 17-18, 105.]
The Plant Technical Support Group was rarely required to travel, but occasionally, when outages occurred, i.e., when one of Salt River's generators stopped producing power, "bor-rowed hands" were requested. [ER 20.] Over the course of twenty-three years Rohr worked as a "borrowed hand" at a power station about a dozen times. The parties dispute whether this support role was an "essential function" of Rohr's position. [ER 18, 21.] During an outage, the work of a specialist, such as Rohr, could require ten to twelve hours per day in the field, seven days a week. Rohr claims, without contradiction, that he had not been assigned to such out-of-town field work since at least 2001 and that major outages had become increasingly infrequent over the last several years.*fn2
B. Rohr's Diabetes Diagnosis
Rohr was diagnosed as an insulin-dependent type 2 diabetic in 2000. From that time, the medical necessities of insulin injections, medicine, blood tests and a strict diet have been fixtures of his daily life.*fn3 [ER 3, 47, 89.] As a result of his diabetes, Rohr suffers from chronic high blood pressure, deteriorating vision and occasional loss of feeling in his hands and feet. [ER 47, 89.] He tires more quickly than he did before the onset of the disease, especially when he drives for long periods of time or is exposed to heat for some length of time. [ER 65.]
Within a few years of the onset of his diabetes, Rohr's medical condition affected his position at Salt River in two respects. First, pursuant to Occupational Health and Safety Administration ("OSHA") guidelines, Salt River required all employees who might be required to use a respirator, which included the Plant Technical Support Group, to obtain and renew a respirator certification annually; this necessitated a yearly medical evaluation. Although Rohr had successfully renewed his respirator medical certification for at least ten years, in 2003 Salt River's Health Services Department refused to administer the breathilator portion of the test to Rohr because of his high blood pressure, which was related to his diabetes. [ER 29-30, 63, 89, 120.] When Rohr returned on a different day, the Health Services Department again refused to administer the test because his blood pressure was too high. [ER 31.] As a result, Rohr could not complete the medical evaluation and was unable to renew his respirator certification. [ER 30.] Salt River offered no alternative test by which Rohr could complete the respirator certification requirement.
Second, in August 2003 Rohr learned that he would be assigned to work on what promised to be a five- or six-week project to repair an outage at Salt River's Navajo Generating Station in Page, Arizona. [ER 35.] This was the first time in several years that he had been asked to help as a "borrowed hand" in the field. [ER 24.] The assignment prompted him to write his supervisors a letter requesting certain accommodations due to his disease. [ER 37, 65, 79, 89.]
His letter explained that while his diabetes had been first diagnosed in 2000, he had likely had the disease for a much longer time. It was not until recently, however, that diabetes significantly affected his work and personal life. [ER 65.] Now, his condition was deteriorating: despite daily insulin injections, medication and stringent diet, his vision had decreased, his hands and feet sometimes felt numb, and exhaustion made him sick rather than simply tired. Sometimes he felt sick for no apparent reason. [ER 65.] He had to follow a "very demanding regimen" to manage his diabetes. In addition to daily injections of insulin, he had to test his blood sugar three to four times a day, could not eat large meals or skip meals and needed to snack on something every few hours. [ER 65.] During travel he had to find a way to keep his insulin refrigerated or chilled. Changes in the length of his work day greatly affected his treatment routine. [ER 65.] Because his condition was deteriorating, his doctor had doubled the strength of his medication and increased the units of insulin that he took each day. [ER 89.] He told his supervisor that his treatment had become his first priority and he had to schedule "everything else" in his life around it. [ER 89.]
As accommodations for the efforts required to control his diabetes, Rohr requested that he not be required to drive for more than three or four hours at a time, engage in strenuous activities, work more than an eight- or nine-hour shift, work in extreme heat, climb scaffolding or ladders, work around moving machinery, or go on overnight out-of-town travel. [ER 90.] These accommodations were necessary, he asserted, because he otherwise would become exhausted, overheated, weak or dizzy due to his diabetes, and travel could exacerbate his condition because it made it difficult to follow his diet and treatment regimen. [ER 89.]
C. Rohr's Permanent Work Restrictions
A nurse at Salt River's Employee Health Services Department received Rohr's letter and instructed Rohr's supervisors to refrain from sending him on out-of-town travel, including the outage at the Navajo Generating Station, until he could obtain his doctor's opinion. [ER 39, 66.] Rohr met with his doctor, Dr. Stephen Dippe. In a note dated August 27, 2003, Dr. Dippe recommended that Rohr "not be given overnight out-of-town assignments and that he avoid becoming over exhausted such as working more than 9 hours a day or being exposed to extreme heat." [ER 67.]
About a week later, a doctor employed by Salt River, Dr. Timothy Woehl, examined Rohr and prepared a list of permanent work restrictions:
1) No rotating shift work.
2) A workday limited to 9 ...