Jacalyn Thornton v. McClatchy Newspapers, Inc.

261 F.3d 789, 2001 Cal. Daily Op. Serv. 7063, 2001 Daily Journal DAR 8693, 12 Am. Disabilities Cas. (BNA) 211, 2001 U.S. App. LEXIS 18372, 2001 WL 914019

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 15, 2001
• Docket: 99-15857
• Status: Published

Opinions

MICHAEL DALY HAWKINS, Circuit Judge:

Jacalyn Thornton, a former part-time reporter for The Fresno Bee (an unincorporated division of McClatchy Newspapers, Inc. (“McClatchy”)), appeals the district court’s grant of summary judgment in favor of McClatchy on Thornton’s claims under the Americans with Disabilities Act (“ADA”) and the California Fair Employment and Housing Act (“FEHA”). Thornton alleges that McClatchy failed to accommodate her workplace injury, which required prophylactic keyboarding and handwriting restrictions limiting the amount of time she engaged in such activities each day.

We conclude that the district court properly granted summary judgment for McClatchy on the ground that Thornton presented no genuine issue of material fact showing that she was disabled within the meaning of the ADA. We also affirm the district court’s denial of Thornton’s motion to amend her complaint. We vacate summary judgment on Thornton’s FEHA claims and remand for reconsideration in light of a recent enactment by the California legislature.

Facts and Procedural Background

Thornton began her career with The Fresno Bee in 1973. She worked in various positions until 1989, when she took a part-time position as a reporter in the Features Department. This job required that Thornton interview sources and write both short and in-depth stories. In fulfilling her duties, Thornton spent about a third of her time “keyboarding,” that is, using the keyboard of her computer.

In 1994 and 1995, Thornton filed workers’ compensation claims alleging injury to her neck for work-related repetitive stress disorder. In 1995, The Fresno Bee’s doctor, Rhea Wong (“Dr. Wong”), restricted Thornton’s work hours, and in 1996 another doctor reported that Thornton’s injury was permanent and stationary. McClatchy made various accommodations for Thornton during this time period, including workstation adjustments, new chairs, modified work schedules, and a gym membership.

Thornton filed another workers’ compensation claim in 1996, alleging injuries to her arm, shoulder and wrist. Thornton contended that doctors diagnosed this condition as myofascial pain syndrome which, in turn, caused thoracic outlet syndrome symptoms. In February of 1997, Dr. Wong recommended that Thornton stop work completely and undergo intensive physical therapy. McClatchy granted Thornton an extended leave of absence.

In June of 1997, Dr. Wong released Thornton to return to work under the following restrictions: (1) continuous keyboard use limited to 30 minutes per day; (2) continuous handwriting limited to 5 minutes per day; (3) intermittent keyboard use limited to 60 minutes per day; and (4) intermittent handwriting limited to 60 minutes per day. Dr. Wong also concluded that, based on these restrictions, Thornton was not able to perform her job as a part-time features reporter.

Despite these restrictions on keyboarding and handwriting, Thornton was able to perform a wide range of daily tasks. On a July 25, 1997 Social Security disability application, Thornton stated that she continued to walk two miles each morning, prepare two to three meals a day for herself and her family, shop for' groceries, and make beds. Thornton could drive with a pillow supporting her arm.

During June of 1997, The Fresno Bee considered various options for accommodating Thornton, including voice recognition technology and reassignment to different positions. However, it concluded that none of these options were viable, and that Thornton’s physical conditions rendered her unable to perform the job of reporter.

On July 10, 1997, the Fresno Bee’s Human Resources Department issued a “Personnel Action Request” to terminate Thornton as of August 16, 1997. Thornton then wrote a letter to the paper’s executive editor, Keith Moyer, asking him to reconsider this decision. McClatchy contends that the Fresno Bee decided not to complete Thornton’s termination, and that it still views her as on leave. Thornton contends that she was never informed of this decision. In the meantime, Thornton sought alternate employment, including teaching journalism at Fresno State.

Thornton filed this action on September 15, 1997, in Fresno County Superior Court. Thornton’s complaint alleged that McClatchy violated the ADA and FEHA by terminating her on the basis of her disability. McClatchy removed the case to federal court on the basis of federal question jurisdiction. Thornton failed to make a timely request for a jury trial.

Thornton first moved to amend her complaint on June 22, 1998, seeking to add claims for defamation, wrongful termination in violation of public policy and retaliation. In addition, she sought to add three individual defendants. The magistrate judge denied this motion, finding that the proposed claims were futile and that the motion had been filed in bad faith. Specifically, he found “evidence of an improper purpose behind [Thornton’s] desire to amend her complaint, namely, to attempt to regain her right to a jury trial on some cause of action.”

Shortly thereafter, the California Supreme Court decided City of Moorpark v. Superior Court, 18 Cal.4th 1143, 77 Cal.Rptr.2d 445, 959 P.2d 752 (Cal.1998). Moorpark held that employees who were discriminated against on the basis of workplace injuries are not limited to workers’ compensation remedies, but can also file FEHA and common-law wrongful discharge claims. On the basis of this decision, Thornton asked the district court to reconsider the magistrate’s denial of her motion to amend. Thornton reasoned that Moorpark undermined the magistrate’s findings of futility as to the wrongful termination in violation of public policy claim. The district court concluded that although the magistrate had improperly held that Thornton’s wrongful termination claim was futile, there was “sufficient evidence in the record to support the ... finding that [Thornton had] acted in bad faith in seeking to amend her Complaint for the purpose of ‘undoing’ her jury waiver.”

Thornton then filed a second motion for leave to amend, seeking again to include a claim for wrongful termination in violation of California’s public policy against injured worker discrimination. The magistrate denied this motion, finding that although Thornton’s proposed amendment was not futile, it was nonetheless filed in bad faith and with undue delay, with resulting prejudice to the defendant. He reiterated, “The conclusion appears almost inescapable ... that the primary, if not sole, motive for plaintiffs motion to amend herein is to regain a trial by jury on at least some of her claims and/or to defeat defendant’s already filed motion for summary judgment.”

The district court affirmed the magistrate’s decision in all respects, finding that Thornton’s proffered reasons for delay were “nonsensical,” and that there was a sufficient showing of prejudice to the defendant. Likewise, the district court found sufficient evidence to uphold the magistrate’s finding of bad faith.

McClatchy then moved for summary judgment, arguing that Thornton could not show: (1) that she was disabled; (2) that she was a qualified individual with a disability; (8) that a reasonable accommodation existed; (4) a right to punitive damages under the ADA and FEHA; and (5) a right to compensatory damages under the ADA.

The district court granted the motion for summary judgment, concluding that Thornton was not disabled under either the ADA or FEHA and that, although Thornton had some moderate difficulties, they did not rise to the level of “substantial limitations” required by the ADA. Accordingly, the court did not reach any of the other issues raised in the summary judgment motion.

Thornton now appeals the grant of summary judgment as well as the denial of the motion for leave to amend her complaint.

Analysis

I. The Disability Claims

We review grants of summary judgment de novo. Weiner v. San Diego County, 210 F.3d 1025, 1028 (9th Cir.2000). Summary judgment is appropriate if there is no genuine issue of material fact. Fed. R.Civ.P. 56.

A. Disability under the ADA

A plaintiff in an ADA case bears the burden of proving disability within the meaning of the ADA. Thompson v. Holy Family Hosp., 121 F.3d 537, 539 (9th Cir.1997). A “disabled” employee under the ADA is one who: (1) has a “physical or mental impairment that substantially limits one or more of the major life activities of such individual”; (2) has a “record of such an impairment”; or (3) is “regarded as having such an impairment.” 42 U.S.C. § 12102(2). Thornton contends that she satisfies the first and third of these requirements.

1. Substantial Limitation of Major Life Activities

On appeal, Thornton argues that she is substantially limited in the major life activities of “working” and “performing manual tasks.” Whether a person is disabled under the ADA is an “individualized inquiry.” Sutton v. United Air Lines, Inc., 527 U.S. 471, 483, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999).

a. Working

Pursuant to EEOC regulations, “working” is a major life activity. To be substantially limited in “working,” an individual must be

significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.

29 C.F.R. § 1630.2(j)(3)(i). Courts should consider the geographical area to which the individual has reasonable access, and the “number and type of jobs utilizing similar training, knowledge, skills or abilities, within that geographical area, from which the individual is also disqualified.” 29 C.F.R. § 1630.2(j)(3)(ii)(A), (B).¹ As the Supreme Court has explained, “If jobs utilizing an individual’s skills (but perhaps not his or her unique talents) are available, one is not precluded from a substantial class of jobs.” Sutton, 527 U.S. at 492, 119 S.Ct. 2139.

In this case, the district court concluded that “reporting does not constitute a sufficiently broad class of jobs to satisfy the substantial limitation requirement of the ADA.” Moreover, Thornton had “not provided sufficiently specific, admissible evidence as to what jobs [required keyboarding and notetaking] or which she would be precluded from, among other matters.”

Under the law of our circuit, a plaintiff must present specific evidence about relevant labor markets to defeat summary judgment on a claim of substantial limitation of “working.”² In Thompson v. Holy Family Hosp., 121 F.3d 537 (9th Cir.1997), an employee brought suit under the ADA, contending that she was terminated from her position as a registered nurse on the basis of her disabling back and neck strain. The district court granted summary judgment on the ground that the plaintiff had failed to raise a genuine issue of material fact as to whether she was disabled. Id. at 539. We affirmed, noting that the plaintiff pointed to “no evidence that the restrictions on her ability to perform total patient care preclude her from engaging in an entire class of jobs.” Id. at 540. Nor had she offered “the information relevant to this particularized determination.” Id. We pointed out that our decision was in accord with that of other circuits and concluded that “Thompson’s conclusory allegations are insufficient to withstand the motion for summary judgment.” Id.

We reached a similar result in Broussard v. Univ. of Cal., 192 F.3d 1252 (9th Cir.1999). In Broussard, the plaintiff alleged that her carpal tunnel syndrome substantially limited her major life activity of working. She presented an affidavit from a vocational rehabilitation specialist, who determined that she was limited to working in the sedentary to light category of jobs. The district court granted summary judgment in favor of the defendant. We again affirmed, concluding that the affidavit was not competent evidence to demonstrate a genuine issue of material fact. Id. at 1258. To defeat a motion for summary judgment, we held, the plaintiff “needed to identify what requirements posed by the class of ... jobs ... were problematic in light of the limitations ... imposed on her.” Id. at 1259 (quoting Davidson v. Midelfort Clinic, Ltd., 133 F.3d 499, 507 (7th Cir.1998)) (internal quotation marks omitted).³

These decisions control the present dispute over Thornton’s limitations as to “working.” McClatchy presented evidence of Thornton’s level of education, her acceptance into the teaching pool at Fresno State, and her work as a freelance journalist during this litigation, which all suggest that she is not substantially limited in the major life activity of working. Thornton, however, failed to present evidence of the jobs from which she was precluded and of the relevant labor markets for that class of jobs. Because Thornton presented no evidence on these issues, the district court properly concluded that she had failed to present a triable issue of material fact.

Thornton argues that our decision in Wellington v. Lyon County Sch. Dist., 187 F.3d 1150 (9th Cir.1999), relieves her of the burden of coming forward with such evidence. In Wellington, a school janitor who developed carpal tunnel syndrome presented evidence that his education was limited to a high school degree, and that his work experience was limited to manufacturing, construction, heavy maintenance, and plumbing. Id. at 1155. He also presented medical evidence that he was permanently unable to perform work involving “metal fabrication, welding, ... heavy activities, carpentry, ... the use of a variety of tools to do maintenance and repairs.” Id. (alteration in original).

We reversed the district court’s grant of summary judgment, holding that “[t]hese facts suggest that Wellington may be precluded from working in any capacity involving construction, maintenance or even light plumbing. Considering Wellington’s ‘training, skills and abilities,’ there existed] a question of fact as to whether he is ‘significantly restricted in the ability to perform work in a class of jobs.’ ” Id.

Wellington also stated that “[n]o expert or other evidence has been presented to suggest that there are jobs available in the labor market for which a person having comparable training, skills and ability to Wellington would be qualified.” Id. (internal quotation marks omitted). However, we did not say that the plaintiff was relieved from presenting evidence about jobs in the relevant labor markets. We merely noted that the defendant had not done so. Wellington involved unrebutted medical evidence about the various types of jobs from which the plaintiff was permanently restricted. Here there was no such evidence of restriction, and, unlike the defendant in Wellington, McClatchy presented evidence that Thornton was capable of securing other jobs.

Summary judgment for McClatchy on the substantial limitation on working claim was therefore appropriate.

b. Manual Tasks

Thornton also contends that she is “substantially limited” in the major life activity of “manual tasks.” The district court noted that Thornton could perform “a broad range of manual tasks, including cooking, caring for herself, grocery shopping and light housework.” As such, her inability “to perform a narrow range of activities ... does not constitute a ‘substantial limitation’ on performing manual tasks.” We agree.

Although we have not previously considered this issue directly, we conclude that the district court’s decision is well-supported by statutory language and by the decisions of other circuits. A “substantial limitation” is not a mere difference in an ability to perform a particular act. Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555, 565, 119 S.Ct. 2162, 144 L.Ed.2d 518 (1999). The ADA is concerned only “with limitations that are in fact substantial.” Id. That Thornton could perform certain manual tasks for only a limited period of time does not present a triable issue that she was “substantially limited” in a broad range of manual tasks.

In Chanda v. Engelhard/ICC, 234 F.3d 1219 (11th Cir.2000), the plaintiff suffered from tendinitis and was restricted from certain tasks, such as typing and cutting foamboard, for extensive periods of time. Id. at 1223. The court concluded that the employer was entitled to summary judgment, since the plaintiff had not demonstrated a substantial limitation of the major life activity of performing manual tasks:

[Wjhile Chanda’s tendinitis constitutes a physical impairment, his deposition testimony and that of his doctors fails to establish a genuine issue as to any substantial limitation. Chanda acknowledged an ability to assist his spouse with household activities, to dress and feed himself, and to drive an automobile. He acknowledged his ability to attend school and take four classes, all of which required the taking of notes.... In light of Chanda’s ability to use his hand for the purposes acknowledged in his testimony, we conclude that his tendinitis was not the statutorily required substantial limitation on his ability to perform manual tasks.

Id. at 1222-23 (footnote omitted).

Similarly, in Ouzts v. USAir, Inc., Civ. A. No. 94-625, 1996 WL 578514 (W.D.Pa. July 26, 1996), aff'd, 118 F.3d 1577 (3d Cir.1997), the court granted summary judgment to an employer on the ground that a plaintiff with carpal tunnel syndrome could not establish a “substantial limitation” of manual tasks, since she was able to perform most ordinary life activities.⁴

In this case, Thornton was able to perform a wide range of manual tasks, including grocery shopping, driving, making beds, doing laundry, and dressing herself. Her inability to type and write for extended periods of time is not sufficient to outweigh the large number of manual tasks that she can perform. The ADA requires a “substantial limitation” in performing manual tasks,⁵ and the district court properly concluded that Thornton did not present a triable issue of material fact as to this point.

2. “Regarded as” Disabled

Thornton finally contends that, even if she is not actually disabled, she was regarded as such by McClatchy. An individual is protected by the ADA if he or she is “regarded as having,” 42 U.S.C. § 12102(2)(C), a “physical or mental impairment that substantially limits one or more of the major life activities of such individual,” 42 U.S.C. § 12102(2)(A). McClatchy must have believed that Thornton either had a substantially limiting impairment that she did not have, or that she had a substantially limiting impairment which, in fact, was not so limiting. Sutton, 527 U.S. at 489, 119 S.Ct. 2139. As with real impairments, “a perceived impairment must be substantially limiting and significant.” Thompson, 121 F.3d at 541 (internal quotation marks omitted).

Thornton offers deposition testimony of McClatchy employees that demonstrates their awareness of Thornton’s keyboarding and handwriting restrictions. McClatchy contends, and the district court agreed, that this evidence did not establish that McClatchy regarded Thornton as substantially limited in any major life activity. We agree. Thornton’s restrictions did not rise to the level of substantial limitation, and there is no specific evidence that McClatchy viewed her as substantially limited. It is true that McClatchy considered a variety of measures to accommodate Thornton’s restrictions. However, when an employer takes steps to accommodate an employee’s restrictions, it is not thereby conceding that the employee is disabled under the ADA or that it regards the employee as disabled. A contrary rule would discourage the amicable resolution of numerous employment disputes and needlessly force parties into expensive and time-consuming litigation. The district court properly decided this issue in McClatehy’s favor.

B. Disability under FEHA

In the proceedings below, Thornton and the district court assumed that the standard for disability under FEHA was the same as under the ADA. After this case had been fully briefed in this court, California enacted a law that states:

The law of this state in the area of disabilities provides protections independent from those in the federal Americans with Disabilities Act of 1990 (Public Law 101-336). Although the federal act provides a floor of protection, this state’s law has always, even prior to passage of the federal act, afforded additional protections [as detailed elsewhere in this act].

Cal. Gov’t Code § 12926.1.

We vacate the district court’s grant of summary judgment on the FEHA claims and remand for further proceedings in light of this recent enactment. We express no view on whether this act alters the district court’s analysis. However, the parties should be allowed to brief the effect, if any, of this act on Thornton’s FEHA claims.⁶

II. Leave to Amend the Plaintiffs Complaint

Thornton also appeals the district court’s affirmation of the magistrate judge’s denial of her second motion for leave to amend her complaint. Thornton sought to add a state-law claim for wrongful termination in violation of public policy. Under Rule 15 of the Federal Rules of Civil Procedure, after responsive pleadings have been filed and in the absence of the adverse party’s written consent, a party may amend its complaint only by leave of the court. Such leave “shall be freely given when justice so requires.” Fed. R.Civ.P. 15. We review the district court’s denial of a request to amend for abuse of discretion. Simon v. Value Behavioral Health, Inc., 208 F.3d 1073, 1084 (9th Cir.2000), cert. denied, 531 U.S. 1104, 121 S.Ct. 843, 148 L.Ed.2d 723 (2001).

Liberality in granting a plaintiff leave to amend “is subject to the qualification that the amendment not cause undue prejudice to the defendant, is not sought in bad faith, and is not futile.” Bowles v. Reade, 198 F.3d 752, 757 (9th Cir.1999). In this case, the magistrate judge found that the plaintiffs motion was unduly delayed, with resulting prejudice to the defendant, and that the motion was filed in bad faith.⁷

The magistrate’s conclusion that Thornton’s motion was filed in bad faith falls within the scope of the magistrate’s discretion. The magistrate specifically referenced the plaintiffs history of dilatory tactics and the doubtful value of the proposed amendment. Both the magistrate judge and the district court supervised these parties over a lengthy period, and their views on this fact-specific issue are entitled to considerable deference. We find no abuse of discretion on this record. See Sorosky v. Burroughs Corp., 826 F.2d 794, 804 (9th Cir.1987).

As an independent ground for denial of the motion for leave to amend, the magistrate judge and the district court concluded that Thornton had needlessly delayed the filing of her motion. The magistrate judge pointed to specific evidence in the record to support his finding of undue delay. He noted Thornton’s failure to pursue the proposed claim and that amendment at such a late date in the proceedings would prejudice McClatchy. The district court agreed with Thornton that such prejudice would be “limited,” but was unable to conclude that the magistrate’s decision was clearly erroneous or contrary to law. This decision was well within the discretion of the district court. See Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1161 (9th Cir.1989).

Conclusion

For the reasons explained, we affirm the district court’s grant of summary judgment on Thornton’s ADA claims, vacate and remand the FEHA claims, and affirm the denial of leave to amend the complaint.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED. Each party to bear its own costs on appeal.

1 . In Sutton, the Supreme Court suggested that the EEOC's inclusion of "working” as a major life activity was circular. However, for purposes of that case, the Court assumed, without deciding, that working is a major life activity. 527 U.S. at 492, 119 S.Ct. 2139. In this case, McClatchy does not deny that working is a major life activity. Accordingly, we also assume without deciding that working is a major life activity.

2 . We reject Thornton's request to "take judicial notice that the severe restrictions on keyboarding and handwriting ... would substantially impair any person from working at a variety of clerical jobs.” We conclude that judicial notice would be inappropriate since it would undermine circuit law on an ADA plaintiff's evidentiary responsibilities.

3 . See also Duncan v. Washington Metro. Transit Auth., 240 F.3d 1110 (D.C.Cir.2001) (en banc) C'[W]e hold that the ADA requires a plaintiff ... to produce some evidence of the number and types of jobs in the local employment market in order to show that he is disqualified from a substantial class or broad range of such jobs.”).

4 . The Sixth Circuit has suggested that the manual-tasks inquiry be further subdivided into separate sub-classes of manual tasks. See Williams v. Toyota Motor Mfg., 224 F.3d 840, 843 (6th Cir.2000), cert. granted, - U.S. -, 121 S.Ct. 1600, 149 L.Ed.2d 466 (2001) (No. 00-1089). We doubt that this is the correct approach, but we note that Williams is distinguishable on its facts. The plaintiff in that case suffered impairments to her arm, shoulders, and neck that were so severe that the court concluded they were "analogous to having missing, damaged or deformed limbs.” Id. Thornton’s limitations do not rise to this level of severity.

5 . Of course, Thornton may be, as the dissent argues, substantially limited in handwriting and keyboarding. The issue of whether handwriting and keyboarding constitute major life activities, however, has not been raised on appeal. Thornton argued this point to the district court, but chose not to raise it in her opening brief to this court. The issue is therefore waived. We do not ordinarily "consider matters on appeal that are not specifically and distinctly raised and argued in [the] opening brief.” United States v. Real Prop. Known as 22249 Dolorosa St., 190 F.3d 977, 981 (9th Cir.1999) (internal quotation marks omitted).

Thornton's waiver of this issue limits our analysis to "substantial limitation” of "manual tasks” generally. We therefore must consider the full range of manual tasks that Thornton is able to perform. It is impossible to conclude, on these facts, that Thornton is so limited.

Nothing in our disposition, however, precludes a subsequent plaintiff from asserting that handwriting and keyboarding constitute major life activities and from advancing, in an appropriate case, the arguments now made by the dissent.

6 . Because we base our decision to vacate on the enactment of the California statute, we do not reach McClatchy's motion to strike and its prior argument that Thornton has waived the issue of a separate standard under FEHA. Although Thornton may have waived the argument with respect to the effect of certain state court decisions, she could not have waived the effect of a statute that had not been enacted when the opening brief was filed.

7 . Prior to the decision on this motion, the magistrate judge and the district court both rejected Thornton's previous attempt to amend her complaint. Both found Thornton's motion was filed in bad faith. Thornton does not appeal this decision, so the prior finding of bad faith remains the law of the case.