FILED
NOT FOR PUBLICATION OCT 21 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
THOMAS J. HIGLEY, No. 08-17205
Plaintiff - Appellant, D.C. No. 3:06-cv-00412-ECR-
RAM
v.
RICK’S FLOOR COVERING, INC., MEMORANDUM *
Defendant - Appellee.
Appeal from the United States District Court
for the District of Nevada
Edward C. Reed, Senior District Judge, Presiding
Argued and Submitted October 6, 2010
San Francisco, California
Before: HUG, RYMER and N.R. SMITH, Circuit Judges.
Thomas J. Higley appeals the district court’s summary judgment in favor of
Rick’s Floor Covering, Inc. regarding his discrimination claim under the
Americans with Disabilities Act (ADA). The court held that Higley had not
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
produced sufficient evidence to show that he was disabled as defined by the ADA.
We have jurisdiction under 28 U.S.C. § 1291. We affirm.
Higley’s complaint alleged that he was limited in the daily life activities of
“walking, bending, sitting, standing, and being pain free.” However, Higley
produced no evidence concerning limitations on walking or bending. Further, on
appeal Higley does not argue that being pain free is a major life activity.
Therefore, we review only whether his ability to sit and stand were substantially
limited.
To bring a successful ADA discrimination claim, a plaintiff must first prove
that he is disabled as defined by the ADA. See Braunling v. Countrywide Home
Loans, Inc., 220 F.3d 1154, 1156 (9th Cir. 2000). A disability is “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) (2006). A substantial limitation
means one is “[s]ignificantly restricted as to the condition, manner or duration
under which an individual can perform a particular major life activity as compared
to the . . . average person in the general population . . . .” 29
C.F.R. § 1630.2(j)(1)(ii). Because we hold that Higley failed to meet his burden of
proof that his limitation was substantial, we decline to address whether Higley had
a physical impairment or whether sitting and standing are major life activities.
2
“A ‘substantial limitation’ is not a mere difference in an ability to perform a
particular act;” the limitation must in fact be substantial. Thornton v. McClatchy
Newspapers, Inc., 261 F.3d 789, 797 (9th Cir. 2001). This inquiry must consider
whether a person is still substantially limited after the impairment is corrected or
mitigated by medication or other measures. Sutton v. United Air Lines, Inc., 527
U.S. 471, 482-83 (1999), abrogated by ADA Amendments Act of 2008 Pub. L.
No. 110-325, 122 Stat. 3555.1 In determining whether a limitation is substantial,
we consider the nature and severity of the impairment, its duration, and the
permanent or long term impact of the impairment. 29 C.F.R. § 1630.2(j)(2). We
address each of these in turn.
1. As to the nature and severity of the impairment, Higley failed to produce
evidence sufficient for a jury to determine that he was substantially limited
compared to the average person. Higley’s only evidence was his own vague
deposition testimony that he has “a hard time sitting for long periods” and “barely
can stand for a long time.” He never explained what a long time was, or whether
he was constantly limited or only limited when his back was out. Higley therefore
1
This court has held that the ADA Amendments Act is effective only
prospectively, therefore, Sutton is still controlling in this case. Becerril v. Pima
County Assessor’s Office, 587 F.3d 1162, 1164 (9th Cir. 2009).
3
offers no authority or evidence on which to base a finding that his restrictions are
significant restrictions compared to the average person. A mere limitation, without
more, is insufficient.
2. As to the duration of Higley’s impairment, the record evidences that
Higley’s back condition is a chronic condition (a herniated disk). When the
claimed impairment is a chronic condition, we consider the specific manifestations
of the disease relative to the major life activity, rather than the duration of the
disease itself. See Fraser v. Goodale, 342 F.3d 1032, 1040-41 (9th Cir. 2003).
The instances when Higley’s back “goes out” requiring treatment are infrequent2
and brief in duration. Weekly injury reports never show Higley as injured for more
than one week at a time. The reported injuries were months apart, and he only
received treatment by his chiropractor once between July 2004 and September
2005.
Although Higley’s back condition was permanent, evidence shows only an
occasional impairment and that treatment alleviated the pain; with treatment his
impairment was temporary—after “a few days” or “sometimes up to a week or so”
2
Although Higley claimed that, based on his chiropractor’s records, he was
injured 21 times at Rick’s, he offered no detail about these injuries. He did not
indicate which of these injuries were sustained during the relevant period (July
2004–September 2005) as opposed to a previous period of employment. The
chiropractic records submitted do not document 21 injuries in this period.
4
Higley would be “out of pain and back to being [himself].” He could “just put a
back brace on and continue working.” Even when his back was out, medication
was successful in controlling the pain and allowing him to continue to work.
Under Sutton, we must consider Higley’s impairment as mitigated by medical
treatment. 527 U.S. at 482-83. The evidence strongly suggests that he was not, in
fact, substantially limited in his ability to sit or stand.
3. As to the permanent or long term impact of the impairment, any impact
occurred nearly a year after his employment with Rick’s. Therefore, that evidence
has limited relevance to determining the severity of his limitation while employed
at Rick’s.
AFFIRMED.
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