## Facts

- Herman Nunies worked for HIE Holdings, Inc. as a five-gallon water delivery driver, performing physically demanding loading and delivery tasks.
- Nunies injured his shoulder and experienced pain that he claimed made the delivery job too physically demanding.
- Nunies requested a transfer to a part-time warehouse position that was less physical; the transfer was initially approved.
- After Nunies informed HIE about his shoulder injury and pain, HIE rescinded the transfer request within two days and Nunies was forced to resign.
- Nunies alleged HIE took adverse action because of his shoulder impairment, asserting both “regarded as” disability discrimination and actual disability discrimination under the ADA, along with claims under Hawaii law.
- HIE asserted non-discriminatory reasons for denying the transfer, including alleged lack of availability of the part-time warehouse position; Nunies pointed to evidence suggesting HIE misrepresented the position’s availability.

## Issues

1. Under the ADA Amendments Act, what must a plaintiff show to establish a “regarded as” disability, and did Nunies produce sufficient evidence to survive summary judgment?
2. Did Nunies present sufficient evidence that his shoulder impairment substantially limited a major life activity to create a triable issue of fact on actual disability?
3. Does Hawaii’s workers’ compensation exclusivity provision, Haw. Rev. Stat. § 378-35, bar ADA claims based on disability discrimination?

## Decision

- The Ninth Circuit affirmed in part, reversed in part, and remanded.
- The court reversed summary judgment on the ADA “regarded as” claim because the district court applied an incorrect, pre-ADAAA standard and the record permitted an inference that HIE acted because of an actual or perceived impairment.
- The court reversed summary judgment on the ADA actual-disability theory, holding that there was a factual dispute whether Nunies’s shoulder injury substantially limited major life activities such as lifting and working.
- The court affirmed that Haw. Rev. Stat. § 378-35 did not bar Nunies’s ADA claims.

## Legal Principles

- After the ADAAA, a “regarded as” claim requires showing the employee suffered an adverse action because of an actual or perceived physical or mental impairment, whether or not the impairment limits or is perceived to limit a major life activity.
- Requiring proof that the employer believed the employee was substantially limited in a major life activity reflects a pre-ADAAA standard and is legal error.
- For actual disability, whether an impairment substantially limits major life activities (including lifting and working) can present a triable fact issue that should not be resolved on summary judgment when supported by record evidence.
- Temporal proximity between disclosure of an impairment and adverse action, combined with evidence suggesting the employer’s stated reason may be false, can support an inference of discriminatory motive and pretext.
- State workers’ compensation exclusivity provisions do not preclude federal ADA causes of action.

## Conclusion

The Ninth Circuit held that the district court used the wrong legal test for ADAAA “regarded as” disability and that the record also created a factual dispute on actual disability, requiring reversal of summary judgment on the ADA discrimination claims while leaving intact the ruling that Hawaii’s workers’ compensation exclusivity statute does not bar ADA relief.


Nunies v. HIE Holdings, Inc., 908 F.3d 428 (9th Cir. 2018)