# Petition for Writ of Certiorari — Glendale Union High School District v. Lutz

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2001
- **Citation:** 534 U.S. 890

## Text

In The
SUPREME COURT OF THE UNITED STATES

GLENDALE UNION HIGH SCHOOL DISTRICT,
Petitioner,
V.
CLAUDETTE LUTZ,

Respondent.

On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

CHARLES L. FINE
LITTLER MENDELSON, P.C.
Camelback Esplanade
2425 E. Camelback Road
Suite 900
Phoenix, Arizona 85016
(602) 474-3600

Counsel for Petitioner

—_—---—

QUESTIONS PRESENTED FOR REVIEW

Whether a determination that an individual is
substantially limited in a major life activity may be based
solely on evidence of the degree of the impairment following
the individual’s termination from employment that was not
available to the employer at the time the adverse
employment action was taken.

Whether an individual attempting to establish that she
was substantially limited in a major life activity must offer
evidence that she was significantly restricted in the activity
as compared to an average person in the general population.

PARTIES TO THE PROCEEDINGS BELOW

Claudette Lutz, Respondent herein, filed the
underlying civil actions in this matter.

Petitioner is not a publicly held company. Petitioner
does not have a parent corporation.

Petitioner Glendale Union High School District No.
205 (hereinafter referred to as “Petitioner” or “Glendale’’)
respectfully requests that a writ of certiorari be issued to
review the judgment of the United States Court of Appeals
for the Ninth Circuit.

TABLE OF CONTENTS

Page
QUESTION PRESENTED FOR REVIEW ...................... i
PARTIES TO THE PROCEEDINGS BELOW............... ii
CITATION OF THE UNOFFICIAL REPORTS
OF OPINIONS AND ORDERS .....0..0.......c0cccccccccee eee eeeeees l
i ssiniibinuasion 1
STATEMENT OF JURISDICTION ......0...00..00000000000000000.. 1
STATUTORY PROVISIONS INVOLVED ..................... 2
ee MU TIES GIT ccccccccccccsecscescaccccscccnessesosecnes 2
i a samamauenunininens 2
TT cad ccirsaeiensentnicantneeneesecctnodettions 5
Existence Of Jurisdiction Below ............................ 6
THE COURT OF APPEALS' DECISION
CONFLICTS WITH THE DECISIONS OF
OTHER COURTS OF APPEALS ON AN
IMPORTANT QUESTION OF FEDERAL LAW .......... 6
THE COURT OF APPEALS' DECISION
EFFECTIVELY DECIDED AN IMPORTANT
QUESTION OF FEDERAL LAW INA
MANNER IN CONFLICT WITH SEVERAL
SSNS REI os Ne 13
I ueemiabinus 18

APPENDICES

APPENDIX A
Opinion, United States Court of Appeals for the
I ctbrsicescssscbittciiaseusaieciilscaiphaiaa iaeaieieiiileinabeekiies la

APPENDIX C
Relevant Statutory Provisions .................sssccesssceeeeeeeees 23a

TABLE OF AUTHORITIES

Federal Cases
Page(s)
Pritchard v. Southern Co. Serv., 92 F.3d 1130, 1133
SN i ciiiiiioctidnenibaistcateanae meee reeks 7
EEOC V. Sears Roebuck & Co., 233 F.3d 432, 438
I I i isvoientiteiceeceicaeae Mes eo oie 7

Kocsis v. Multi-Care Management, Inc., 97 F.3d 876, 884
age, AUR SRD ee en OREN CT ORATOR Site OP 7,9

Burch v. Coca-Cola Co., 119 F.3d 305, 315
PG aii es oe 7,8

Kalekiristos v. CTS Hotel Management Corp., 958 F. Supp.
OE a Barr ikiaiaihictadstssectiniasastiniasnstchaciineiisabiibisdiindiasnbsiabs 8,9

Eber v. Harris County Hosp. Dist., 130 F. Supp. 2d 847,
PE A BUN, UE Bisanitlicinsdihinssiilaisaliiasipialigiatiatdnitcaniasshchbiiinla 8

Fagan v. United Int'l Ins., 128 F. Supp. 2d 182
READE Es Bi eientiidbincinikticiiisiithinanaidibaibaiininniicleaienitilie 8,9

Leicht v. Hawaiian Airlines Inc., 77 F. Supp. 2d 1134
CEPA, FO TE ccinicisiniccspsiionestieniesttl aidiscnecttlaiicsboniaiiist. 8

Lance v. University of Tennessee, 60 F. Supp. 2d 773, 776
RAs, HAMM, BORO Mis sncinscncnsissicncipsDhalsaiiigelstianhietlkesabnidsdiladastianidieca 8

Meekison v. Voinovich, 17 F. Supp. 2d 725, 730
ED. CO TD sciisin sic dasiceittethinpnteeiiitiidisdtciiartctaiayipicnanichtasss 8

Adams v. Rochester Gen. Hosp., 977 F. Supp. 226, 232
CRIES, CI vicincidouinsbagiaet canes 8

Boren v. Wolverine Tube, Inc., 966 F. Supp. 457
GR A: BIG Pacccevenscnnscnnrnsssncctsnininibieinteiahiiceateniainninianainiipheind 8

Dikcis v. Nalco Chemical Co., 974 F. Supp. 669, 673-674
ee BR eT 8

Parker v. Metropolitan Life, Ins. Co., 875 F. Supp. 1321,
SD CUP a. UR: EOI exectecerenenseieninnsininniieeniiligpilabbcibapibensain 8

Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) ... 12, 14

Gonzales v. National Bd. Of Med. Exam'rs, 225 F.3d

CIO F* Ch. TD iasciiesistniinicctlcecincmibiteailadite ait ia 14
Albertsons, Inc. v. Kirkingburg, 525 U.S. 555 (1999)......... 14
Doyal v. Oklahoma Heart, Inc., 213 F.3d 492, 497

C00” Gls: SII enctitstesienatdieede 14
Soileau v. Guilford of Maine, Inc., 105 F.3d 12, 16

(2 Gl, 10D inicinicinnninialae eens 14
Maynard v. Pneumatic Products Corp., 233 F.3d 1344

ChE Cn: I a acticsinnsseanicatieaiaeaeincere 14
Moore v. J.B. Hunt Transp., Inc., 221 F.3d 944

CFP ie, Fe itiitcinvtitimeiinaiacea eee ee 15
Kelly v. Drexel University, 94 F.3d 102, 105

(Fe, CI encectiicerceaeee 15

Penny v. United Parcel Serv., 128 F.3d 408, 415

Pe Si dhddcdiititae 16
Talk v. Delta Air Lines Inc., 165 F.3d 1021, 1025
gk aOR By RROD otc ne eee bere tee 16
Colwell v. Suffolk County Police Dept., 158 F.3d 635,

GAA (08 Clr, 190) scan csencasnnnseensoorensonrnesernneeensnesnnssnste 16

Statutes and Rules
GE ULEE: 6 GIN haiti itlcceiesiscscscntirtnttines 2
29 C.F.R. pt. 1630 app., § 1630.2(j) .....ccceccseessees 2,13, 14n.4
ee Aa ORG TONE To oO 5
I Aeiibiesticeciseleciteisnsinieitttinercicineaet 5
ea RSET MR TO 6
ne es RET RA RO AEE TRON EIR 6
Ie Bi ihaicichechietainsiecsiosceietietaieeaiion 13
I Fi ieieiinssnkitcccncietcetinaces 13, 14.5
vii

CITATION OF THE UNOFFICIAL
REPORTS OF OPINIONS AND ORDERS

Neither the judgment of the Ninth Circuit Court of
Appeals nor the ruling by the limited States District Court
for the District of Arizona are officially cited or published.
Their citations are:

Court of Appeals No. 99-17410
District Court No. CV-98-01076-EHC

OPINIONS BELOW

The opinion of the United States Court of Appeals for
the Ninth Circuit is reported as Claudette Lutz v. Glendale

Union High School District No. 205, et al., No. 99-17410

and is set forth in Appendix A.

The opinion of the United States District Court for
the District of Arizona in Claudette Lutz v. Glendale Union

High School District No. 205, et al., D.C. No. CV-98-01076,
which was reviewed by the Court of Appeal is unpublished

and set forth in Appendix B.
STATEMENT OF JURISDICTION

The judgment of the United States Court of Appeals
for the Ninth Circuit was entered on April 20, 2001.

The jurisdiction of this Court is invoked under Title
28 of the United States Code, section 1254(1), and Rule 13
of the Supreme Court of the United States.

STATUTORY PROVISIONS INVOLVED

The relevant provisions of the Americans With
Disabilities Act [42 U.S.C. § 12101 et seq.] (hereinafter
“ADA”) are set forth in Appendix C.

The relevant provisions of the Equal Employment
Opportunity Commission (hereinafter “EEOC’”) interpretive
guidelines for the ADA [29 C.F.R. pt. 1630 app., §
1630.2(j)] are set forth in Appendix C.

STATEMENT OF THE CASE
STATEMENT OF FACTS

Respondent Claudette Lutz (hereinafter
“Respondent”) is a former employee of Glendale, a public
school system with nine high schools in the cities of
Glendale and Phoenix, Arizona. Respondent was one of the
assistant principals at Thunderbird High School (hereinafter
“Thunderbird”). Respondent alleges that Glendale violated
the Americans With Disabilities Act (“ADA”) by
terminating her employment.

Glendale had employed Respondent since 1972 and
since 1983 she had been an Assistant Principal at different
high schools. Her most recent assignment was the Assistant
Principal of Student Services at Thunderbird. Her immediate
supervisor was the school’s Principal, Jennifer Johnson
(hereinafter “Johnson”). Respondent disliked and did not get
along with Johnson. She also did not get along with various
counselors and administrators. There was rancor between
Respondent and Johnson and had been for the last couple of
years Respondent worked at Thunderbird. Because of her
strained relationships with Johnson and other personnel,
Respondent began to feel work-related stress.

The Superintendent, James Kieffer (hereinafter
“Kieffer”) and the Assistant Superintendents were aware of
the rancor and rifts between Respondent and Johnson and
between Respondent and certain personnel, which were
negatively affecting her effectiveness. | Respondent’s
problems with Johnson caused Kieffer to meet with
Respondent in early May 1997. Prior thereto, in April 1997,
Respondent submitted a written request to Superintendent
Kieffer for a promotion to a principalship. Because of the
situation at Thunderbird, and the conclusions that
Respondent’s relationship with Johnson was irreparable and
she was no longer effective, Respondent was scheduled for
reassignment. She was scheduled to transfer to Washington
High School.

Respondent had been afflicted with diabetes for a
number of years. Her diabetic condition was known to
Johnson and District administrators. Her diabetic condition
had not, however, affected her ability to perform the
necessary duties, functions and responsibilities of the job.
Respondent had never claimed that the diabetes kept her
from doing her job nor asked to be given an accommodation
to do her job. To the contrary, Respondent had not missed a
day of work in over six months. In addition, Respondent had
applied for a promotion to another position in another
school, which proved to Kieffer that she was fully able to
perform her job and her diabetic condition would not have
any application.

In her June 4, 1997 meeting with Kieffer regarding
her transfer, Respondent became angry and proceeded to
argue with him. She stated that the reassignment could cause
a worsening of her diabetes and asked that the reassignment
be rescinded. After arguing and asking to stay at
Thunderbird, she said she had only one year left before she
was eligible for retirement. In response, Kieffer offered her

3

a teaching position for the time until her retirement, which
she rejected. With regard to accommodation, it was pointed
out that due to her dislike of and problems with her principal
and other Thunderbird personnel, the transfer to Washington
was for her betterment.

After accepting the fact that the transfer would go
forward, Respondent was given a set of directives to follow.
Respondent violated these instructions and directives.
Shortly thereafter, at a meeting of all the faculty and
administrators for Thunderbird, Respondent spoke before the
assemblage and said, among other things, that the transfer to
Washington was one of the worst things that had ever
happened to her. She said:

I had a friend who was killed in
Vietnam; I was diagnosed with spina
bifida so I could not have children; I
saw my father in a body bag; and now
this transfer to Washington. I wish
instead of throwing a football [at the
Superintendent], I wish I had thrown a
hand grenade.!

The audience was shocked by her statement and it
immediately received notoriety throughout the District,
including Washington High School. Her conduct amounted
to gross insubordination.

Kieffer asked Respondent to meet with him and
explain her actions. She defended each of her actions
(refusal to carryout the directives and the statement to the
assemblage) as being reactions to a negative employment

' The “football” statement was a reference to a “Faculty Farce” that took
place in March 1997 in which Respondent, as part of a skit, threw a
football at Kieffer who was seated in the audience.

4

transaction. She made no meaningful attempt to apologize
for her actions or conduct. She again requested, however, to
have the transfer rescinded until she could stabilize her
diabetic condition. Kieffer again offered her the opportunity
to teach or to be reassigned as an administrator at the North
Annex, a very easy job, at the same salary and until she was
eligible for retirement. Respondent rejected these offers. As
a result, June 13, 1997 was her last day of work. On August
19-20, 1997, a termination hearing was held pursuant to the
termination and hearing procedures set forth in the Arizona
statutes, A.R.S. § 15-339, et seq. After hearing testimony
and evidence, which included Respondent’s presentation of
testimony, evidence and medical documentation about her
diabetic condition, the Glendale Board of Education voted
unanimously to terminate her.

PROCEEDINGS BELOW

This case involves an action filed by Respondent, in
Superior Court of Maricopa County on May 12, 1998.
Glendale removed this action to the United States District
Court for the District of Arizona on June 24, 1998, on the
basis of federal question jurisdiction pursuant to Title 28,
United States Code, section 1331.

On September 23, 1999, the District Court granted
Glendale’s motion for summary judgment. The District
Court dismissed Respondent’s state tort and contract claims,
§ 1983 claim and her ADA claim. With respect to her ADA
claim, the District Court found that Respondent had failed to
establish that she is a qualified individual with a disability
within the meaning of the ADA. See Appendix C.
Specifically, the District Court concluded that there was no
evidence that Respondent had a substantially limiting
impairment.

A timely Notice of Appeal from the Judgment of the
District Court was filed by Respondent on or about October
22, 1999. However, Respondent did not challenge on appeal
the District Court’s decision insofar as it dismissed her state
tort and contract claims and her § 1983 claim. The only
ruling that Respondent appealed was the dismissal of her
ADA claim.

On April 20, 2001, the Court of Appeals issued its
Memorandum decision reversing the District Court. See
Appendix A. The Court of Appeals concluded that the
District Court erred in finding, as a matter of law, that
Respondent is not a qualified individual with a disability
within the meaning of the ADA. Specifically, the Court of
Appeals found that there is a triable issue of fact as to
whether Respondent is substantially limited in the major life
activity of walking.

EXISTENCE OF JURISDICTION BELOW

The District Court had jurisdiction over the federal
claims alleged by Respondent’s Complaint hereinbelow
under Title 28, United States Code, sections 1331, 1441(b)
and 1446. The Court of Appeals had appellate jurisdiction
under Title 28, United States Code, section 1291.

THE COURT OF APPEALS’ DECISION CONFLICTS
WITH THE DECISIONS OF OTHER COURTS OF
APPEALS ON AN IMPORTANT QUESTION OF
FEDERAL LAW.

This petition for a writ of certiorari should be granted
because the Ninth Circuit Court of Appeals’ Opinion
conflicts with the decisions of other courts of appeals
concerning the proper time frame for measuring whether an
individual is substantially limited in a major life activity.

6

CL ee ee Ee TE Og ee ee Se oe -

The Eleventh, Seventh, Sixth and Fifth Circuit Courts of
Appeals, as well as many district courts, have held that when
measuring an impairment to determine whether it is
substantially limiting, courts must focus on evidence of the
impairment prior to the date on which the employee
requested an accommodation. The time-period is restricted
so that only evidence that would have been available to the
employer at the time it made the adverse employment action
is considered. The Ninth Circuit Court of Appeals, on the
other hand, based its decision that Respondent has a
substantially limiting impairment on evidence regarding the
degree to which Respondent was impaired over a year after
she had been removed from working. By doing so, the
Appellate Court has created a conflict with the Eleventh,
Seventh, Sixth and Fifth Circuit Courts of Appeals as to
whether such post-termination (or post-adverse action)
evidence may serve as the basis for a court’s ruling even
though the employer itself would not have had the benefit of
such evidence.

The following courts have held that in order to
prevail on a claim of disability discrimination, a plaintiff
must prove that she had a substantially limiting impairment
at the time of the discriminatory act. See Pritchard v.
Southern Co. Serv., 92 F.3d 1130, 1133 (11" Cir.), amended
on other grounds on reh’g, 102 F.3d 1118 (11" Cir. 1996),
cert. denied, 520 U.S. 1274 (1997) (court focused its
inquiry on whether there was sufficient evidence that
employee had a substantially limiting impairment “at the
time of her termination”); EEOC v. Sears Roebuck & Co.,
233 F.3d 432, 438, (7" Cir. 2000) (the progression of an
impairment following an individual’s termination from
employment may be viewed as a factor but is not
determinative); Kocsis v. Multi-Care Management, Inc., 97
F.3d 876, 884 (6" Cir. 1996) (in order to recover on an ADA
claim, the plaintiff must first establish as part of her prima

7

facie case that she had a disability “at the time of the
discriminatory act.” (emphasis in original)); Purch v. Coca-
Cola Co., 119 F.3d 305, 315 (5™ Cir. 1997), cert. denied 522
U.S. 1084, 118 S.Ct. 871 (1998) (citing Pritchard, 92 F.3d at
1133) (“[A]n impairment must be substantially limiting ar
the time of the requested accommodation.”) (emphasis in
original); Kalekiristos v. CTS Hotel Management Corp., 958
F. Supp. 641 (D.D.C. 1997), aff'd 132 F.3d 1481 (D.C. Cir.
1997); Eber v. Harris County Hosp. Dist., 130 F. Supp. 2d
847, 858 (S.D. Tex. 2001); Fagan v. United Int'l Ins., 128 F.
Supp. 2d 182 (S.D.N.Y. 2001); Leicht v. Hawaiian Airlines
Inc., 77 F. Supp. 2d 1134 (D.C. Hawaii 1999); Lance v.
University of Tennessee, 60 F. Supp. 2d 773, 776 (E.D.
Tenn. 1999); Meekison v. Voinovich, 17 F. Supp. 2d 725,
730 (S.D. Ohio 1998); Adams v. Rochester Gen. Hosp., 977
F. Supp. 226, 232 (W.D.N.Y. 1997); Boren v. Wolverine
Tube, Inc., 966 F. Supp. 457 (N.D. Miss. 1997); Dikcis v.
Nalco Chem. Co., 974 F. Supp. 669, 673-674 (N.D. Il.
1997); Parker v. Metropolitan Life Ins. Co., 875 F. Supp.
1321, 1326 (W.D. Tenn. 1995). To determine if there was a
substantially limiting impairment at the time of the
discriminatory act, courts necessarily focus on evidence
submitted regarding the degree of the impairment in the
period leading up to the discriminatory act.

In Kocsis, after summarizing a Plaintiff's burden to
establish that a disability existed as of the date of the adverse
employment action, the Sixth Circuit Court of Appeals
reversed the district court’s decision because it had relied on
evidence of the plaintiffs condition following her
termination:

The district court found that [the
plaintiff] could satisfy the “disability”
requirement for purposes of
establishing her prima facie case

8

because she was “presently under a
diagnosis of [multiple sclerosis].” That
premise is erroneous, however,
because [the plaintiff] must establish
that her disability existed at the time
of the discriminatory act.

97 F.3d at 884 n.13 (emphasis in original,
citations omitted).

In Kalekiristos, (a case affirmed by the Court of
Appeals for the District of Columbia) the court held as
follows:

reports about which the defendant had
absolutely no knowledge nor access to
prior to terminating the plaintiff can
not serve as the sole evidentiary basis
of establishing an element of a prima
facie case of disability discrimination.
A person alleging a disability
protected by the ADA has a burden of
establishing with medical evidence the |
existence of the alleged disability, and
presenting documentation during the
term of employment, not following
termination.

958 F. Supp. at 657.

The district court in Fagan found that the plaintiff
had “produced no evidence that he had anything more than a
temporary ailment at the time of his employment and,
consequently, had not met his burden of proving that his
injury qualified as a disability under the ADA.” 128 F.
Supp. 2d at 185-186. In reaching its finding, the court

9

determined that post-termination medical reports “were
irrelevant as to the issue of whether plaintiff suffered a
disability at the time of his employment.” /d. at 186 n.2.
Likewise, the court determined that evidence of a
handicapped parking permit that was issued seven months
after plaintiff's termination “cannot serve as the basis of [the
plaintiff's] claim to a disability.” Jd.

In the present case, on the other hand, the Ninth
Circuit Court of Appeals relied exclusively on evidence of
Respondent’s impairment after her employment with
Petitioner had ended. First, the Appellate Court relied on an
affidavit of Respondent that she signed on July 31, 1998,
over thirteen months after she was no longer working and
almost one year after her termination and in which she
testified to her condition on the date of signature. The
affidavit states in pertinent part (1.e., the part quoted and
relied on by the Ninth Circuit in its Memorandum decision):

If I work in the yard for any length of
time, I will have a low blood sugar
reaction and my mother whom I live
with has to continually check on me in
the yard to make sure that I have not
passed out. I do very little work
around the house, as vacuuming and
mopping of the home and other
physical activities causes me to have
low blood sugar and therefore I do not
do these activities now more than one
time every couple of months at most.
I am very limited in my ability to do
these things. |

10

a ee ee a ee ee eee ee Mee

Based on this written statement, made in the present tense
and signed almost a year after Respondent was terminated,
the Ninth Circuit Court of Appeals found as follows:

[Respondent’s] own affidavit indicates
that even light physical activity,
including “walking for any distance
[such as to] grocery shopping” and
working around the house, such as
vacuuming, mopping and yard work,
“causes me to have low blood sugar
and therefore I do not do these
activities more than one time every
couple of months at most.”

See Appendix A, page 2. Furthermore, based on
Respondent’s affidavit, the Appellate Court concluded that
“[t]he evidence in the record is sufficient to support a finding
that [Respondent] cannot walk for even a minimal distance
more than one time every couple of months.” See Appendix
A, pages 3-4.

Additionally, the Ninth Circuit stated that the
affidavit of Respondent’s doctor confirms her reported
difficulties with walking. Like Respondent’s affidavit,
however, her doctor’s affidavit was signed nearly ten months
after Respondent’s termination from employment.
Moreover, the affidavit does not even mention the word
walking, let alone state that Respondent had difficulties
walking during the period of her employment. Likewise, the
doctor’s letter used at her termination hearing made no
mention of any difficulty whatsoever about walking.

? This contradicts the 38 pages of medical evidence submitted by
Respondent at her termination hearing. No record expresses her inability
to walk; to the contrary, she underwent a 5-minute, 29-second exercise
treadmill test without any problem in February 1997.

11

Nevertheless, based entirely on such after-the-fact
evidence, the Ninth Circuit held: “This evidence is sufficient
to support a finding that [Respondent] is substantially limited
in the major life activity of walking.”? See Appendix A,
page 3. This finding is against the overwhelming weight of
the evidence in the record for the period of time the
Respondent was working.

By basing its decision on evidence of Respondent’s
condition over a year after she was through working, the
Ninth Circuit Court of Appeals effectively rejected the
decisions of the Eleventh, Seventh, Sixth and Fifth Circuits
that requires a plaintiff to demonstrate the existence of a
substantially limiting impairment at the time of his/her
employment. If the Ninth Circuit had focused its inquiry to
the pre-termination evidence of Respondent’s impairment, it
undoubtedly would have affirmed the district court’s grant of
summary judgment because there is no evidence that
Respondent had a substantially limiting impairment during
the period of her employment.

Now, Respondent calls upon this Court to resolve the
question whether post-termination evidence about which an
employer did not and could not have had knowledge of prior
to terminating the plaintiff can serve as the sole evidentiary
basis for establishing an element of a prima facie case of
disability discrimination. This Court’ decision in Sutton v.
United Air Lines, Inc., 527 U.S. 471 (1999), suggests that it
cannot: “Because the phrase ‘substantially limits’ appears in
the Act in the present indicative verb form, we think the
language is properly read as requiring that a person be

> The Court of Appeals also pointed to the fact that the District Court
noted that Respondent's blood sugar levels “affected her . . . walking”
and her medical records “confirm her reported difficulties with walking.”
See Appendix A, pages 2-3.

12

presently — not potentially or hypothetically — substantially
limited in order to demonstrate a disability.” Jd. at 482.
However, because the Court has not squarely addressed the
issue, Respondent respectfully requests that the Court do so
now. »

THE COURT OF APPEALS’ DECISION
EFFECTIVELY DECIDED AN IMPORTANT
QUESTION OF FEDERAL LAW IN A MANNER IN
CONFLICT WITH SEVERAL CIRCUIT COURTS

In order to be considered a qualified individual with a
disability, a plaintiff must establish that she has a physical or
mental impairment that substantially limits one or more
major life activity. 42 U.S.C. § 12102(2)(A). Although the
ADA does not define “substantially limits”, the EEOC has
issued interpretive guidelines (hereinafter “EEOC
regulations”) that explains the term. 29 C.F.R. pt. 1630 app.,
§ 1630.2(j). The regulations provide that an individual is
substantially limited in a major life activity if she is:

(i) unable to perform a major life
activity that the average person in the
general population can perform; or
(ii) significantly restricted as to the
condition, manner or duration under
which an individual can perform a
major life activity as compared to the
condition, manner or duration under
which the average person in the
general population can perform that
same major life activity.

29 C.F.R. § 1630.2(j).4

* In addition, the regulations provide that the “nature and severity of the
impairment,” the “duration or expected duration of the impairment,” or
13

This Court has pointed out that “[nJo agency...has
been given authority to issue regulations implementing the
general applicable provisions of the ADA.” Sutton, 527 U.S.
at 479. Nevertheless, several United States courts of appeals
have sanctioned courts’ reliance upon — and in some cases
have compelled parties’ compliance with — the EEOC
regulations. See, e.g., Gonzales v. National Bd. Of Med.
Exam’rs, 225 F.3d 620 (6" Cir. 2000) (comparing
appellant’s abilities with abilities of average person in
general population); Doyal v. Oklahoma Heart, Inc., 213
F.3d 492, 497 (10" Cir. 2000)(“Because [appellant]
introduced no evidence suggesting she experienced greater
difficulty than anybody else learning the new computer
system or any other new material, she has failed to
demonstrate that she was significantly restricted in
learning.”); and Soileau v. Guilford of Maine, Inc., 105 F.3d
12, 16 (1 Cir. 1997) (“Impairment is to be measured in
relation to normalcy, or, in any event, to what the average

person does.”’).

Furthermore, several United States courts of appeals
have specifically upheld the requirements set forth in the
EEOC regulations where the major life activity at issue is
walking.” For example, in Maynard v. Pneumatic Products
Corp., 233 F.3d 1344 (11™ Cir. 2000), the appellant argued
that he was substantially limited in the major life activity of
walking because his back injury restricted the duration,
manner or condition under which he could perform the major
life activity. Jd. at 1347. The Eleventh Circuit Court of

“the permanent or long term impact, or the expected permanent of long
term impact of or resulting from the impairment” are to be considered.
29 C.F.R. § 1630.2(j). This Court has adopted this section of the
regulations. Albertsons, Inc. v. Kirkingburg, 525 U.S. 555 (1999).

* The EEOC regulations include walking as a major life activity. 29
C.F.R. § 1630.2(i).

14

Appeals rejected the appellant’s claim, holding: “[t]o sustain
his burden of proof, [appellant] needed to prove that his
ability to walk is significantly restricted as compared to the
average person in the general population. This [appellant]
did not do.” Jd. at 1347-1348. (emphasis in original). The
appellate court defined the crucial role of the regulations as
follows: ;

[T]he claimant must present sufficient
evidence of the significant restriction
before the court may turn the issue
over to the trier of fact. This evidence
must include information regarding
the abilities of the average person in
the general population. [Appellant]
proffered no evidence on this point,
and thus failed to make out a prima
facie case.

Id. at 1349.

Similarly, the EEOC regulations recently played a
pivotal role in a Seventh Circuit decision. Moore v. J.B.
Hunt Transporiation, Inc., 221 F.3d 944 (7" Cir. 2000). In
rejecting the appellant’s claim that his rheumatoid arthritis
substantially limited his ability to walk because it affected
the “rate and pace” of his activities (as opposed to his ability
to perform them), Appellant admitted that he could walk
distances of less than a mile consistently and could even
walk a mile if he paid attention to what he was doing. The
Seventh Circuit rejected his claim, holding: “We do not
believe that these limitations constitute significant
restrictions cn [appellant’s] ability to walk when compared
with the ability of the average person... .” Jd. at 951.

15

Moreover, in Kelly v. Drexel University, 94 F.3d 102,
105 (3™ Cir. 1996), the Third Circuit Court of Appeals
quoted the regulations and then held that “the question
presented is whether [the plaintiff] adduced sufficient
evidence from which a factfinder reasonably could conclude
that the nature and severity of his injury significantly
restricted his ability to walk as compared with an average
person in the general population.” See also Taylor v.
Pathmark Stores, Inc., 177 F.3d 180, 186 (3d Cir. 1999)
(“there was no testimony that [appellant] stands or walks,
during the fifty minutes per hour that he can, with any less
ability than the average person.”’).

Relying on the Third Circuit’s decision in Kelly, the
Sixth Circuit Court of Appeals held that the plaintiff failed to
demonstrate that he is disabled within the meaning of the
ADA and the regulations. Penny v. United Parcel Serv., 128
F.3d 408, 415 (6™ Cir. 1997) (quoting Kelly, 94 F.3d at
105). The appellate court found that “[a]lthough the record
clearly indicates that [plaintiff] suffers an impairment that
affects to some degree his ability to walk, he has not
‘adduced sufficient evidence from which a factfinder
reasonably could conclude that the nature and severity of his
injury significantly restricted his ability to walk as compared
with an average person in the general population.’” Penny,
128 F.3d at 415.

In Talk v. Delta Air Lines Inc., 165 F.3d 1021, 1025
(5" Cir. 1999), the appellant asserted that she walked with a
limp and moved at a significantly lower pace than the
average person. Nevertheless, the Fifth Circuit Court of
Appeals found that “although [appellant] experiences some
impairment to her ability to walk, it.does not rise to the level
of a substantial impairment as required by the ADA.” Jd.

16

In Colwell v. Suffolk County Police Dept., 158 F.3d
635, 644 (2d Cir. 1988), cert. denied, 526 U.S. 1018 (1999),
the Second Circuit Court of Appeals quoted the regulations
and held: “the evidence was insufficient to support the
finding that any of the officers’ impairments were
substantial, particularly when evaluated in light of the first
EEOC factor: ‘the nature and severity of the impairment’ as
compared with the average person’s ability to perform those
activities.” 4

In the present case, on the other hand, Respondent
offered no evidence whatsoever of her ability to walk as
compared to the ability of an average person in the general
population. Respondent’s failure to offer such evidence did
not present the Ninth Circuit Court of Appeals from
overruling the district court’s decision and finding in
Respondent’s favor. Although Petitioner quoted the EEOC
regulations, which call for such comparative evidence, in the
brief it filed with the Appellate Court, the court did not
comment on Respondent’s failure to provide any such
evidence.

Respondent respectfully requests that the Court settle
the question whether courts are bound by the EEOC
regulations defining a substantial limitation in rendering
decisions in ADA cases. Specifically, Respondent seeks this
Court’s guidance as to whether a plaintiff attempting to
establish that he/she is substantially limited in a major life
activity must offer evidence of his/her impairment as
compared to an average person in the general population.

17

CONCLUSION

For the reasons expressed hereinabove, Petitioner
Glendale Union High School District respectfully requests
that its petition for a wnt of certiorari be granted.

Respectfully submitted,

bi Aran.

CHARLES L. FINE

LITTLER MENDELSON, P.C.
Camelback Esplanade

2425 E. Camelback Road, Suite 900
Phoenix, Arizona 85016

(602) 474-3600

Counsel for Petitioner

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_2132%3A1. Public record. Not legal advice.