Fox v. Delta Airlines, Inc.

33 F. App'x 842

Opinion

MEMORANDUM

Footnotes

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Patricia Fox appeals the district court’s grant of summary judgment in favor of Delta Airlines in Fox’s action under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., and California state law. We affirm.

Fox is not “disabled” under the ADA because her lifting restrictions do not substantially limit the major life activities of performing manual tasks, Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 122 S.Ct. 681, 690, 151 L.Ed.2d 615 (2002); Thompson v. Holy Family Hosp., 121 F.3d 537, 539 (9th Cir.1997) (25 pound lifting restriction does not substantially limit a major life activity), or working. Sutton v. United Air Lines, Inc., 527 U.S. 471, 492, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999). Delta did not regard her as disabled because it offered her her old position back and informed her of other job openings within the company. Thompson, 121 F.3d at 541. Because Fox is not “disabled” under the ADA, we need not decide whether she is a “qualified individual” or whether she has suffered discrimination on the basis of her disability. Kees v. Wallenstein, 161 F.3d 1196, 1199 (9th Cir.1998).

We decline to consider Fox’s claim that she was wrongfully terminated in violation of California public policy because Fox did not raise this claim before the district court. Mabe v. San Bernardino County, Dep’t of Pub. Soc. Servs., 237 F.3d 1101, 1112 (9th Cir.2001). Additionally, Fox submitted no evidence that she was terminated.

Fox’s claims for intentional and negligent infliction of emotional distress are preempted by the California Workers’ Compensation Act because they are based on conduct normally occurring in the workplace. Cole v. Fair Oaks Fire Protection Dist., 43 Cal.3d 148, 233 Cal.Rptr. 308, 729 P.2d 743, 750 (Cal.1987). Fox put forth no evidence that she suffered injury discrimination of the type or degree found to be outside the realm of workers’ com pensation preemption in Fretland v. County of Humboldt, 69 Cal.App.4th 1478, 82 Cal.Rptr.2d 359, 368 (Ct.App.1999).

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.