The opinion
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HERMAN N. NUNIES, No. 16-16494
Plaintiff-Appellant,
DC No.
v. CV 15-0116 KSC
HIE HOLDINGS, INC.,
Defendant-Appellee. OPINION
Appeal from the United States District Court
for the District of Hawaii
Kevin S. Chang, Magistrate Judge, Presiding
Argued and Submitted June 12, 2018
Honolulu, Hawaii
Filed September 17, 2018
Before: A. Wallace Tashima, William A. Fletcher,
and Andrew D. Hurwitz, Circuit Judges.
Opinion by Judge Tashima
2 NUNIES V. HIE HOLDINGS
SUMMARY*
Employment Discrimination
The panel affirmed in part and reversed in part the district
court’s summary judgment in favor of the defendant in an
employment discrimination action under the Americans with
Disabilities Act.
The panel held that, under the ADA Amendments Act, the
scope of the ADA’s “regarded-as” definition of disability was
expanded. Prior to the ADAAA, to sustain a regarded-as
claim, the plaintiff had to provide evidence that the employer
subjectively believed the plaintiff was substantially limited in
a major life activity. Under the ADAAA, however, the
plaintiff must show that he has been subjected to a prohibited
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.” Applying the correct
law, and viewing the evidence in the light most favorable to
the non-moving party, the panel concluded that the plaintiff
established a genuine issue of material fact as to whether his
employer regarded him as having a disability.
The panel held that the district court further erred in
concluding that the plaintiff did not meet the “physical”
definition of disability under the ADA, which requires a
showing that the plaintiff has a physical impairment that
substantially limits one or more major life activities. The
panel concluded that there was at least a dispute about
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
NUNIES V. HIE HOLDINGS 3
whether the plaintiff’s shoulder injury substantially limited
the life activities of working and lifting.
The panel reversed the district court’s dismissal of both
the ADA claims and plaintiff’s state law discrimination
claim. The panel affirmed the district court’s ruling that
Haw. Rev. Stat. § 378-35, which provides an exclusive
remedy for certain claims arising from a workplace injury,
did not bar the ADA claims. The panel remanded the case to
the district court for further proceedings.
COUNSEL
Charles H. Brower (argued), Honolulu, Hawaii, for Plaintiff-
Appellant.
Marguerite S. N. Fujie (argued) and Lisa W. Cataldo,
McCorriston Miller Mukai MacKinnon LLP, Honolulu,
Hawaii, for Defendant-Appellee.
Susan R. Oxford (argued), Attorney; Ann Noel Occhialino,
Acting Assistant General Counsel; Jennifer S. Goldstein,
Associate General Counsel; James L. Lee, Deputy General
Counsel; Equal Employment Opportunity Commission,
Washington, D.C.; for Amicus Curiae Equal Employment
Opportunity Commission.
4 NUNIES V. HIE HOLDINGS
OPINION
TASHIMA, Circuit Judge:
In 2008, Congress enacted the ADA Amendments Act
(“ADAAA”), which broadened the definition of disability
under the Americans with Disabilities Act (“ADA”),
42 U.S.C. §§ 12101 et seq. As relevant to this appeal, the
ADAAA expanded the scope of the ADA’s “regarded-as”
definition of disability. We have not opined on this issue
in the ten years since the ADAAA was enacted and some
district courts have mistakenly continued to apply the
narrower pre-ADAAA definition of regarded-as disability.
We now write to clarify this issue.
Plaintiff-appellant Herman Nunies was a delivery driver
for HIE Holdings, Inc. (“HIE”). Nunies claims that he
injured his shoulder and wanted to transfer to a part-time,
less-physical warehouse job. The requested transfer was
approved and all set to go through until Nunies told HIE
about his shoulder injury. Two days after Nunies allegedly
informed HIE about his injury, the company rejected his
transfer request and forced him to resign. Nunies brought a
disability discrimination suit against HIE under the ADA and
state law, arguing that HIE terminated him because of his
shoulder injury. HIE moved for summary judgment, which
the district court granted.
Applying the standard set forth in the ADAAA, we hold
that the district court erred in concluding, as a matter of law,
that Nunies was not regarded-as disabled. The district court
further erred in concluding that Nunies did not meet the
“physical” definition of disability under the ADA. We
reverse and remand.
NUNIES V. HIE HOLDINGS 5
BACKGROUND
1. Factual Background
HIE is in the business of the purchase, sale, and
distribution of food products for residential and commercial
use. Nunies was a five-gallon delivery driver for the
company in Kauai. His primary duties included operating
HIE’s company vehicle; loading, unloading, and delivering
five-gallon water bottles; and occasionally assisting in the
warehouse. The position required lifting and carrying a
minimum of 50 pounds and other physical tasks.
Sometime in mid-June 2013, Nunies wanted to transfer
from his full-time delivery driver position to a part-time
warehouse position. The parties dispute the motivation for
this switch. Nunies attributes his desire to switch to the pain
he had developed in his left shoulder. HIE – through a
supervisor, Victor Watabu – contends that Nunies wanted to
transfer so that he could focus on his independent side-
business. To effectuate the transfer, Nunies found a part-time
warehouse employee, Sidney Aguinaldo, to swap positions.
Watabu contacted HIE’s Honolulu office because that
office needed to approve the Nunies-Aguinaldo swap.
According to Watabu, the Honolulu office “tentatively”
approved the switch pending resolution of some pay and
duties questions. Nunies asserts that on June 14, 2013,
Watabu told him that the switch had been approved.
Next, Nunies states that on June 17, 2013, he notified his
operations manager and Watabu that he was having shoulder
pain. HIE disputes that it was aware of Nunies’ shoulder
injury. However, on a later-filed “Employer’s Report of
6 NUNIES V. HIE HOLDINGS
Industrial Injury,” an HIE HR official noted that Nunies first
reported the injury on June 17.
The parties agree that on June 19, Watabu told Nunies
that HIE would not extend the part-time warehouse position
to him and that Nunies’ last day would be July 3. Nunies
argues that there were no discussions after June 14 about
reaching an agreement until, on June 19, Watabu said “[y]ou
gotta resign” because “[y]our job no longer exists because of
budget cuts.”1 HIE’s termination report, dated June 27, 2013,
states that the “type” of Nunies’ separation was “resignation,”
and that the reason for the separation was that the “part-time
position [was] not available.” However, on June 24, 2013,
Watabu emailed his HIE colleagues, on an email chain about
Nunies’ last day of employment, and asked, “can you scan a
copy for a job opening for a part-time warehouseman ad[?]”
Nunies saw an ad for the position in the newspaper on June
26, 2013, one day before HIE completed Nunies’ termination
report.
On June 20, the day after HIE informed Nunies that he
would not get the part-time position, Nunies went to a doctor
for his shoulder pain and procured a note stating that he
should not work until being reevaluated on July 5. Therefore,
although the last day that Nunies actually worked was June
19, he was still technically employed until July 3. After his
doctor’s visit, Nunies filled out a Workers’ Compensation
Accident Report and sent the report to HIE on June 27. The
1
HIE argues that between June 14 and June 19, Watabu and Nunies
discussed the terms of the switch and that Nunies wanted his same hourly
rate in the new position. Watabu declares that the Honolulu office would
not give Nunies the same hourly rate as his delivery driver wage, and as
such, they would not extend the position to Nunies.
NUNIES V. HIE HOLDINGS 7
report notes that Nunies first reported the injury on June 17
and that the “injury is from lifting five gal bottles over a
period of 5 years.” In HIE’s Report of Industrial Injury, it
also states that Nunies reported the injury on June 17, but
notes that Nunies “advised [his] supervisor that he will not be
able to work full time due to increased jobs from his
landscaping business.” In describing the cause and nature of
the injury, the Employer’s Report states “[a]lleged left
shoulder and both wrist[s]” injuries and “[n]othing noted as
specific incident for injury. Alleging possible cumulative
trauma from doing the job for 5 years. No recent missed time
up to date of filing.”
Following an MRI on July 29, 2013, Nunies was
diagnosed with supraspinatus tendinitis/partial tear of his left
shoulder. By September 2014, medical reports concluded
that the injury had been resolved.
2. Procedural Background
Nunies brought suit on April 6, 2015, alleging that HIE
violated the ADA and Hawaii’s employment discrimination
law, Haw. Rev. Stat. (“HRS”) § 378-2, by discriminating
against him because of his disability. HIE moved for
summary judgment on all claims, arguing that: (1) Nunies’
suit was barred under HRS § 378-352; and (2) Nunies could
2
HRS § 378-35 states:
If the department of labor and industrial relations finds,
after a hearing, that an employer has unlawfully
suspended, discharged or discriminated against an
employee in violation of section 378-32, the department
may order the reinstatement, or reinstatement to the
prior position, as the case may be, of the employee with
8 NUNIES V. HIE HOLDINGS
not establish a prima facie case of disability discrimination
because he was not “disabled,” not a “qualified individual,”
and did not suffer an “adverse employment action.” The
district court granted HIE summary judgment on all of
Nunies’ claims.
First, the district court rejected HIE’s argument that
Nunies’ claims were barred by state law because Nunies did
not assert a cause of action under HRS § 378-32, the claim
that HRS § 378-35 bars.
Second, the district court concluded that Nunies did not
have a “disability” under the ADA. Even though Nunies only
argued in his briefs that HIE regarded him as having a
disability, the district court also considered whether he had a
“physical,” or a “record” disability. As to physical disability,
the district court concluded that Nunies had not established
that his shoulder injury “substantially limited” any “major life
activity.” The district court also found that Nunies did not
establish a record of impairment. Finally, the district court
concluded that Nunies had not established that HIE regarded
him as having a disability because Nunies did not come
forward with any evidence that HIE subjectively believed that
Nunies was substantially limited in a major life activity.
Nunies timely appealed.
or without backpay or may order the payment of
backpay without any such reinstatement.
NUNIES V. HIE HOLDINGS 9
STANDARD OF REVIEW
This court reviews an order granting summary judgment
de novo. United States v. Washington, 853 F.3d 946, 961–62
(9th Cir. 2017).
DISCUSSION
1. Waiver
HIE argues that we should not consider Nunies’ regarded-
as disability claim because he did not adequately argue it in
his opening brief on appeal or his physical disability claim
because he did not raise it below. We reject HIE’s arguments
and reach the merits on both theories of disability.
First, although Nunies’ regarded-as argument in his
opening brief is sparse, he does home in on the key issue of
whether he was required to “show that a major life activity
was substantially limited,” or that HIE perceived as much.
Therefore, Nunies “specifically and distinctly” raised the
issue for this court. See Entm’t Research Grp., Inc. v.
Genesis Creative Grp., Inc., 122 F.3d 1211, 1217 (9th Cir.
1997) (quoting Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir.
1994)).
As to the “physical” disability argument, HIE is correct
that Nunies did not address the issue in his opposition to the
motion for summary judgment. Nonetheless, Nunies raised
the argument at the hearing on the motion by contending that
he could not work or lift, both of which are “major life
activities” relevant to the definition of physical disability. In
response to this argument, the district court asked “[s]o is this
a – regarded as having an impairment ADA claim?” to which
10 NUNIES V. HIE HOLDINGS
Nunies’s counsel responded (1) “our position is that as soon
as he told them he had that pain in the shoulder, things
changed, and suddenly he was out the door,” and (2) “in
addition to that our argument is that yes, in fact he does have
an ADA-covered disability which we said they considered in
changing their mind about him taking the warehouse
position.” (Emphasis added). Thus, Nunies suggested that he
was raising two distinct arguments. And, the district court’s
order suggests that the court interpreted Nunies’ argument as
implicating both the physical and regarded-as prongs of
disability because it addressed both.
Even if Nunies did not raise the issue, we may consider it
if “the issue presented is purely one of law and either does not
depend on the factual record developed below, or the
pertinent record has been fully developed[.]” See Bolker v.
Comm’r, 760 F.2d 1039, 1042 (9th Cir. 1985). Whether
Nunies has come forward with sufficient evidence to defeat
summary judgment is a question of law, the district court
developed the issue, and the parties briefed it on appeal;
therefore, we opt to reach whether the district court erred in
concluding that Nunies did not have a disability under the
physical prong of the definition.
2. Disability
To set forth a prima facie disability discrimination claim,
a plaintiff must establish that: (1) he is disabled within the
meaning of the ADA; (2) he is qualified (i.e., able to perform
the essential functions of the job with or without reasonable
accommodation); and (3) the employer terminated him
because of his disability. See Snead v. Metro. Prop. & Cas.
Ins. Co., 237 F.3d 1080, 1087 (9th Cir. 2001).
NUNIES V. HIE HOLDINGS 11
“The term ‘disability’ means, with respect to an
individual – (A) a physical or mental impairment that
substantially limits one or more major life activities of such
individual; (B) a record of such an impairment; or (C) being
regarded as having such an impairment.” 42 U.S.C.
§ 12102(1)(A)–(C). The ADA does not define “physical or
mental impairment,” but the Equal Employment Opportunity
Commission’s (“EEOC”) regulations define physical
impairment as “[a]ny physiological disorder or condition . . .
affecting one or more body systems, such as . . .
musculoskeletal . . . .” 29 C.F.R. § 1630.2(h)(1).
The regarded-as and physical prongs of the definition are
at issue on appeal.
A. Regarded-as
Under the ADAAA,
An individual meets the requirement of “being
regarded as having such an impairment” if the
individual establishes that he or she has been
subjected to an action prohibited under this
chapter 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.
12 NUNIES V. HIE HOLDINGS
42 U.S.C. § 12102(3)(A) (emphasis added).3 Prior to the
ADAAA, to sustain a regarded-as claim, the plaintiff had to
“provide evidence that the employer subjectively believe[d]
that the plaintiff [was] substantially limited in a major life
activity.” Walton v. U.S. Marshals Serv., 492 F.3d 998, 1006
(9th Cir. 2007) (relying in part on the interpretation of
regarded-as in Sutton, which the ADAAA explicitly
superceded). See footnote 3, supra.
The ADA excludes individuals from regarded-as coverage
if the impairment is both transitory (i.e., expected to last six
months or less) and minor (which the statute does not define).
42 U.S.C. § 12102(3)(B).
Here, the district court cited the ADAAA definition of
regarded-as, but relied on pre-ADAAA caselaw to hold that
Nunies did not establish coverage. Specifically, the district
court concluded “that Plaintiff has not sustained his burden of
presenting direct evidence that Defendant subjectively
believed that Plaintiff is substantially limited in a major life
activity.” (Emphasis added.) Based on the plain language of
the ADAAA, it was error for the district court to require
Nunies to present evidence that HIE believed that Nunies was
substantially limited in a major life activity.
Applying the correct law, and viewing the evidence in the
light most favorable to the non-moving party, we conclude
3
“The ADAAA rejects the Supreme Court’s interpretation of the term
‘disability’ in Sutton v. United Air Lines, Inc., 527 U.S. 471, 119 S.Ct.
2139, 144 L.Ed.2d 450 (1999), and Toyota Motor Manufacturing,
Kentucky, Inc. v. Williams, 534 U.S. 184, 122 S.Ct. 681, 151 L.Ed.2d 615
(2002), and thereby expands the class of individuals who are entitled to
protection under the ADA.” Rohr v. Salt River Project Agric.
Improvement & Power Dist., 555 F.3d 850, 853 (9th Cir. 2009).
NUNIES V. HIE HOLDINGS 13
that Nunies established a genuine issue of material fact as to
whether HIE regarded him as having a disability. A
reasonable jury could conclude that HIE effectively
terminated Nunies “because of” its knowledge of Nunies’
shoulder injury.
Nunies proffered evidence that Watabu told him that the
transfer to the part-time position was fully approved on June
14. On June 17, Nunies informed Watabu and his operations
manager that he was having shoulder pain. Then, on June 19,
Nunies learned that he would not receive the transfer and that
he had to resign. When Nunies asked why, Watabu told him
that the part-time job no longer existed because of budget
cuts. Nevertheless, because HIE advertised an opening for
the exact same position just days afterwards, it reasonably can
be inferred that the position clearly still existed.
Put simply, there is evidence in the record that everything
was going swimmingly for Nunies in terms of transferring to
the part-time position until he informed HIE that he had
shoulder pain. Once HIE learned of the shoulder pain, it
rescinded the offer, and forced Nunies to resign. Further,
there is evidence that HIE misrepresented to Nunies that the
position was no longer available because shortly thereafter
the company was looking to hire someone for the same
position. From these facts, on summary judgment, it would
be reasonable to infer that HIE forced Nunies to resign
“because of” his shoulder injury.4 See Ray v. Henderson,
217 F.3d 1234, 1244 (9th Cir. 2000) (stating that causation
may be inferred from timing of events); see also Chuang v.
Univ. of Cal. Davis, Bd. of Trs., 225 F.3d 1115, 1127 (9th Cir.
4
HIE does not contest that a shoulder injury could be a physical
impairment for the purposes of the ADA.
14 NUNIES V. HIE HOLDINGS
2000) (noting that evidence of an employer proffering a
misleading reason supports a finding of intentional
discrimination (citing Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 146–47 (2000))).
HIE’s arguments to the contrary are not convincing.
First, HIE correctly points out that the regarded-as definition
of disability does not apply to “transitory and minor”
impairments. 42 U.S.C. § 12102(3)(B). Citing this
provision, HIE contends that “Nunies’ report of ‘shoulder
pain’ would not be sufficient to convince a reasonable jury
that Nunies had a physical impairment expected to last six
months or longer, or that HIE regarded him as such.”
However, HIE errs by placing the burden on Nunies to show
that his impairment was not transitory or minor. As Amicus
EEOC points out, the “transitory and minor” exception is an
affirmative defense, and “[a]s such, the employer bears the
burden of establishing the defense.” See 29 C.F.R. pt. 1630,
app. § 1630.2(l); id. at § 1630.15(f); see also Hutton v. Elf
Atochem N. Am., Inc., 273 F.3d 884, 893 (9th Cir. 2001)).
HIE offered no evidence to sustain its burden that Nunies’
actual or perceived injury was “transitory and minor.”5
Second, HIE’s attacks on Nunies’ evidence on summary
judgment are irrelevant to the analysis. HIE asserts that
Nunies’ “uncorroborated report of ‘shoulder pain’ is made
more suspect” by an allegedly contradictory statement from
5
In fact, Nunies still had a lifting restriction until September 2014,
more than a year after he left HIE.
NUNIES V. HIE HOLDINGS 15
Nunies. But, Nunies’ statement is not contradictory6 and,
more fundamentally, whether Nunies’ evidence is suspect is
a question for a jury, not one to be resolved on summary
judgment. Likewise, we reject HIE’s contention that its
newspaper advertisement was irrelevant to whether the
company regarded Nunies as disabled. Evidence that HIE
lied to Nunies about the availability of the part-time position
raises the reasonable inference that the company withdrew its
transfer offer to Nunies based on an illicit reason.
Considering that Nunies had informed the company two days
earlier that he was hurt, a reasonable jury could connect those
dots.
All in all, considering the broader definition of regarded-
as disability under the ADAAA, and viewing the evidence in
the light most favorable to Nunies, the district court erred in
granting of summary judgment to HIE on this issue.
B. Physical
To establish a disability under the physical prong of the
definition, a plaintiff must show that he has “a physical . . .
impairment that substantially limits one or more major life
activities.” 42 U.S.C. § 12102(1)(A). “[M]ajor life activities
include, but are not limited to, caring for oneself, performing
manual tasks, seeing, hearing, eating, sleeping, walking,
standing, lifting, bending, speaking, breathing, learning,
6
HIE argues that Nunies’ statement that he did not tell the company
that he was injured at work prior to the June 20 doctor’s appointment is
contradicted by the fact that Nunies argues he had his shoulder injury prior
to his leaving the company. These statements are not contradictory.
Nunies could have told the company that he was injured on June 17, but
not tell them how he thought he was injured until after June 20.
16 NUNIES V. HIE HOLDINGS
reading, concentrating, thinking, communicating, and
working.” Id. § 12102(2)(A). The relevant regulations add
that “substantially limits” should “be construed broadly” and
that “[a]n impairment need not prevent, or significantly or
severely restrict, the individual from performing a major life
activity in order to be considered substantially limiting.”
29 C.F.R. § 1630.2(j)(1)(i) & (ii).
Here, the district court held that Nunies could not
establish a disability under the physical prong because he did
“not identif[y] any major life activities that were affected by
his impairment.” And, even if Nunies had identified a life
activity, the district court concluded that he had not
demonstrated that his shoulder injury substantially limited
any of those activities compared to most people in the general
population.
As mentioned above, however, Nunies did identify two
major life activities: working and lifting. After reviewing the
record, we conclude that there is at least a dispute about
whether Nunies’ shoulder injury substantially limited those
life activities. For example, in his deposition, Nunies
testified that any time he lifted his arm above chest height –
even without an object – he would experience a stabbing pain
and numbness. Further, even in 2014, Nunies still had a
lifting restriction of 25 pounds.
HIE relies, as did the district court, on evidence in the
record that Nunies continued working through the pain to
conclude that he was not substantially limited in his ability to
work. But in order for an impairment to substantially limit a
major life activity it “need not prevent, or significantly or
severely restrict” the activity. Id. § 1630.2(j)(1)(ii). In our
view, a stabbing pain when raising one’s arm above chest
NUNIES V. HIE HOLDINGS 17
height substantially limits the major life activity of lifting and
possibly working. Therefore, we conclude that the district
court also erred in deciding as a matter of law that Nunies did
not meet the “physical” disability definition under 42 U.S.C.
§ 12102(1)(A).
3. State Law Claims
A. Hawaii Discrimination Claim
Nunies alleged a state-law disability discrimination claim
under HRS § 378-2. Because Hawaii applies “the same
framework . . . to claims of discrimination under the ADA . . .
to claims under HRS § 378-2,” the district court dismissed
this claim for the same reasons it dismissed the ADA claims.
See Furukawa v. Honolulu Zoological Soc’y, 936 P.2d 643,
648–49 (Haw. 1997). Because we reverse the dismissal of
the ADA claims, we also reverse the dismissal of the state
law discrimination claim.
B. State Law as a Bar
Finally, HIE asserts that HRS § 378-35 bars Nunies’
claims. We conclude that the district court was correct to
deny HIE summary judgment on this ground.
In support of its argument, HIE cites Takaki v. Allied
Machinery Corp., 951 P.2d 507 (Haw. Ct. App. 1998), but
this case is not as broad as HIE argues. In Takaki, the Hawaii
Intermediate Court of Appeals held that the exclusive remedy
available to an individual claiming unlawful discharge under
HRS § 378-32 for a work-related injury is provided in HRS
§ 378-35. Id. at 514. HIE argues by analogy that HRS § 378-
35 must therefore also bar federal ADA claims, but Takaki
18 NUNIES V. HIE HOLDINGS
says nothing about federal claims.7 HIE’s logic also fails for
the simple reason that there is no indication that a workplace
injury cannot serve as the disability in an ADA claim. In
other words, just because an injury happened at work does
not mean that a plaintiff can only assert a claim under HRS
§ 378-32(a)(2). If Nunies brought a claim under HRS § 378-
32(a)(2), it would be barred, but he did not bring such a claim
– he brought a claim under the ADA. Or, as the district court
articulated it, “Plaintiff’s claims do not fall within the ambit
of HRS §§ 378-32 and 378-35.”
CONCLUSION
The judgment of the district court is AFFIRMED as to the
asserted state-law bar to bringing the ADA claims and the
HRS § 378-2 claim, but otherwise REVERSED, and the case
is REMANDED for further proceedings consistent with this
opinion.8
Nunies is awarded his costs on appeal against HIE.
AFFIRMED in part, REVERSED in part, and
REMANDED.
7
It would be highly unusual if it did. HIE’s argument amounts to a
reverse preemption argument – that state employment discrimination law
can displace the federal ADA.
8
HIE argues that we should affirm the district court’s grant of
summary judgment on the alternative grounds that Nunies did not
establish a prima facie case of discrimination, that HIE had a legitimate
reason for its actions, or that Nunies did not show that HIE’s reason was
pretextual. We decline to reach these issues and leave them for the district
court to consider in the first instance.