Jorge Rosales v. Bellagio, LLC

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 29, 2022
• Docket: 21-15465
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION JUN 29 2022 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JORGE ROSALES, No. 21-15465

Plaintiff-Appellant, D.C. No. 2:17-cv-03117-JCM-VCF v.

BELLAGIO, LLC, MEMORANDUM*

Defendant-Appellee.

Appeal from the United States District Court for the District of Nevada James C. Mahan, District Judge, Presiding

Submitted June 27, 2022** San Francisco, California

Before: S.R. THOMAS, SCHROEDER, and BUMATAY, Circuit Judges.

Jorge Rosales appeals the district court’s order granting summary judgment

in favor of Bellagio on Rosales’s Americans with Disability Act (ADA) claim for

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). failure to accommodate his disability while employed as a room service food

server.

When his case was previously before this panel, we remanded for the district

court to reconsider the case under the correct standard. See Rosales v. Bellagio,

LLC, 811 F. App’x 438 (9th Cir. 2020). The district court again granted summary

judgment and Rosales again appeals.

The district court ruled that Rosales could not perform the essential

functions of the job. On appeal, Rosales contends that there are triable issues of

fact and that Bellagio did not establish that he could not perform the essential

functions of his employment.

While much is disputed, some things are clear. The room service job

arguably involves three types of duties. Hospitality duties require heavy lifting and

assembly of tables, equipment, and large quantities of food and beverage service

items such as plates and glasses. Rosales agrees that he is not able to do hospitality

work. He maintains, however, that such work is not an essential function, because

he can opt out of it.

A second category of duties involves assembly and delivery of ordinary

room service orders. To the extent these duties involve pushing a table from the

kitchen to the room, Rosales apparently can perform them. To the extent they

2 involve lifting anything heavier than 36 pounds (the weight of an unloaded hot

box) or carrying anything heavier than a gallon of milk, Rosales cannot perform

the duties.

The third catch-all category, called “side work,” is composed of everything

else that needs to be done, ranging from cleaning the kitchen to restocking the

pantry. Rosales maintains that not all side work duties are essential and claims that

he could do enough of the side work duties that he could do the essential aspects of

side work. Rosales’s restrictions include, in addition to those on lifting and

carrying, no repetitive neck movements. Rosales conceded that working as a room

service worker requires a lot of neck movement, and that even if he was allowed to

do only light work, he might injure his neck. Thus, even if not all of the side work

tasks are essential, as he contends, the inability to do repetitive neck movements

prevents him from doing even those side work duties that he concedes are

essential. See Dark v. Curry Cnty., 451 F.3d 1078, 1089 (9th Cir. 2006) (“The

ADA does not require an employer to exempt an employee from performing

essential functions.”).

Given Rosales’ restrictions, he cannot perform enough of the side work tasks

that are essential to performing the job, and thus, is not a “qualified individual”

under the ADA.

AFFIRMED.