SELECTED 9th CIRCUIT COURT OF APPEALS ADA/504 CASES
Cases highlited in blue are linked to the actual decision in Findlaw

Bates v. United Parcel Service, Inc., 465 F.3d 1069 (10/2006) This case concerns whether United Parcel Service (UPS) may categorically exclude individuals from employment positions as "package-car drivers" because they cannot pass a United States Department of Transportation (DOT) hearing standard that does not apply to the vehicles in question. A class of UPS employees and applicants unable to pass the DOT hearing standard We hold that when plaintiffs challenge an employer's use of a safety-based qualification standard, they need not, independently of that challenge, establish generally that they can perform the essential function of doing the job safely. They are, however, required to show they are "qualified" in the sense that they satisfy prerequisites for the position, including safety-related prerequisites, not connected to the challenged criterion. Once plaintiffs have so demonstrated, and have also shown that the qualification standard "screen[s] out or tend[s] to screen out an individual with a disability or a class of individuals with disabilities," § 12112(b)(6), the burden shifts to the defendant to establish that the challenged qualification standard is job-related and consistent with business necessity. We affirm the district court's factual finding that UPS failed to carry its burden and its legal conclusion that UPS therefore violated the ADA. We also affirm the district court's injunction and its order denying UPS's motion to decertify the class.

Pickern v. Pier 1 Imports (U.S.), Inc., 457 F.3d 963 (7/2006) the district court held that the Appellees had no obligation under Title III of the Americans with Disabilities Act ("ADA") to build an access ramp to the Pier 1 Imports store ("the Store") over land owned and operated by the City of Chico. The district court also decided that it need not address allegations of additional ADA violations because Pickern's pleadings did not provide sufficient notice of those allegations and because Pickern submitted the expert report supporting those allegations after the deadline contained in the court's scheduling order. We affirm.

Dark v. Curry County, 451 F.3d 1078 (7/2006) we must conclude that the County's defense suffers from the very same defect that foreclosed summary judgment on the "qualified individual" issue.  As we have already determined, there remains a genuine question of material fact as to whether a reasonable accommodation—such as temporary reassignment or the use of medical leave—could have eliminated the need for application of the "seizure-free" requirement resulting in Dark's termination. The County has not met its burden and is therefore not entitled to the defense on summary judgment.

Josephs v. Pacific Bell, 432 F.3d 1006 (12/2005) Josephs claimed that PacBell regarded him as suffering from a mental illness that might result in future acts of violence. While it is true, as PacBell argues, that the California court's determination of legal insanity does not necessarily mean that Josephs suffered from a mental impairment covered by the ADA, the jury considered more than Josephs' criminal record and court documents. It heard evidence that PacBell employees considered Josephs unemployable because he had spent time in a "mental ward" and might "go off" on a customer. It considered newspaper reports that PacBell reviewed and discussed during the grievance proceedings, which included statements that Josephs was a "mentally disordered offender" who had been under psychiatric care. The jury read Josephs' autobiography, as had PacBell employees, which detailed his mental instability before his stay in the mental hospital. Thus, the jury had ample evidence to support its finding that PacBell regarded Josephs as having a mental impairment covered by the ADA.

Arc of Washington State Inc. v. Braddock, 427 F.3d 615 (10/2005) We navigate once again the murky waters between two statutory bodies: Medicaid and the Americans with Disabilities Act (ADA). Specifically, we examine whether a state violates the ADA when it limits the number of people that can participate in a Medicaid waiver program providing disabled persons with alternatives to institutionalization. We do not hold that the forced expansion of a state's Medicaid waiver program can never be a reasonable modification required by the ADA. What we do hold is that, in this case, Washington has demonstrated it has a "comprehensive, effectively working plan," Olmstead, 527 U.S. at 605, and that its commitment to deinstitutionalization is "genuine, comprehensive and reasonable," Sanchez, 416 F.3d at 1067. Washington's HCBS program (1) is sizeable, with a cap that has increased substantially over the past two decades; (2) is full; (3) is available to all Medicaid-eligible disabled persons as slots become available, based only on their mentalhealth needs and position on the waiting list; (4) has already significantly reduced the size of the state's institutionalized population; and (5) has experienced budget growth in line with, or exceeding, other state agencies. Under such circumstances, forcing the state to apply for an increase in its Medicaid waiver program cap constitutes a fundamental alteration, and is not required by the ADA.

Head v. Glacier Northwest Incorporated, 413 F.3d 1053 (7/2005) We conclude that Head has alleged sufficient evidence to demonstrate a substantial impairment in the established major life activities of sleeping, interacting with others, and thinking. Moreover, Head has alleged sufficient evidence of a substantial impairment regarding reading and we conclude that reading is a major life activity. Therefore, we reverse the district court and remand for a determination on the merits of Head's claims based on disability and record of disability. The district court properly excluded lay witness testimony because it would not have been helpful to the jury. Finally, we adopt a "motivating factor" standard for causation in the ADA context and conclude that the use of "because of" and "because" instructions in this case was prejudicial. Therefore, we vacate the jury verdict and remand for further proceedings

Lutz v. Glendale Union High School, 403 F.3d 1061 (4/2005) Lutz, a longtime teacher and assistant principal at schools in Glendale Union High School District, sued Glendale in Arizona state court, claiming she was fired in violation of the Americans with Disabilities Act ("ADA"). Glendale removed the case to the United States District Court for the District of Arizona, where it successfully moved for summary judgment on the issue whether Lutz is substantially limited in a major life activity and therefore disabled. We reversed, finding a triable issue as to whether she is substantially limited in the major life activity of walking.

Arc of Wash. State Inc. v. Braddock, 403 F.3d 641 (3/2005) The Arc of Washington State, Inc., and three developmentally disabled individuals (collectively Arc) appeal the grant of partial summary judgment against them, decertification of a class, and dismissal of their action against the Washington State Department of Social and Health Services, and others, (collectively DSHS). Arc claims that the district court committed numerous errors, including a ruling against Arc on the claim that Title II of the Americans with Disabilities Act of 1990, Pub. L. No. 101-336, 104 Stat. 327 (more particularly, 42 U.S.C. § 12132) is violated by a restriction on the number of people who can participate in the special Medicaid waiver program that provides for alternatives other than institutionalization for developmentally disabled people. 42 U.S.C. § 1396n(c). We affirm on the ADA issue

Leonel v. American Airlines, Inc. 400 F.3d 702 (3/2005) American interviewed them at its Dallas, Texas, headquarters and then issued them conditional offers of employment, contingent upon passing both background   checks and medical examinations. Rather than wait for the background checks, American immediately sent the appellants to its on-site medical department for medical examinations, where they were required to fill out medical history questionnaires and give blood samples. None of them disclosed his HIV-positive status or related medications. Thereafter, alerted by the appellants' blood test results, American discovered their HIV-positive status and rescinded their job offers, citing their failure to disclose information during their medical examinations. The appellants, all California residents, now challenge American's medical inquiries and examinations as prohibited by the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. (1999), and California's Fair Employment and Housing Act ("FEHA"), Cal. Gov't Code § 12900 et seq. (1999). They argue that American could not require them to disclose their personal medical information so early in the application process — before the company had completed its background checks such that the medical examination would be the only remaining contingency — and thus their nondisclosures could not be used to disqualify them. They further contend that American violated their rights to privacy under the California Constitution by conducting complete blood count tests ("CBC"s) on their blood samples without notifying them or obtaining their consent. The district court had diversity jurisdiction over the appellants' individual suits; it consolidated the actions and granted American's motion for summary judgment on all claims. We have jurisdiction over the consolidated appeals under 28 U.S.C. § 1291. We hold that the appellants have raised material issues of fact as to all appealed claims except Fusco's claim of intentional infliction of emotional distress.

Butler v. Adams, 397 F.3d 1181 (2/2005) Earl Butler appeals the dismissal of his action under the American with Disabilities Act (the ADA) against California prison officials for failure to exhaust his administrative remedies as required by the Prison Litigation Reform Act of 1996, 42 U.S.C. § 1997e(a) (the PLRA). Holding that Butler complied with the grievance procedure afforded him by the state for ADA complaints, we reverse and remand.

Beentjes v. Placer County Air Pollution Control Dist., 397 F.3d 775 (2/2005) the District challenges the district court's ruling on theground that the court failed to recognize the District's unique status as an enforcement agency under California's implementation plan for the federal Clean Air Act. In failing to do so, the District argues that the court misapplied the Mitchell/Belanger five-factor test. We have jurisdiction over this interlocutory appeal under the "collateral order doctrine," see Savage v. Glendale Union High Sch., 343 F.3d 1036, 1040 (9th Cir. 2003), and we affirm. We hold that the District is not an arm of the state and therefore is not entitled to sovereign immunity under the Eleventh Amendment

Pardi v. Kaiser Permanente Hosp., Inc., 389 F.3d 840 (11/2004) We conclude that Pardi has made a prima facie showing cognizable as a cause of action under the ADA. At the present stage of the litigation, Kaiser has not offered a "legitimate, non-retaliatory explanation for" its post-Settlement Agreement conduct, thus relieving Pardi from having "to show that [Kaiser]'s explanation is merely a pretext for impermissible retaliation." Winarto v. Toshiba Am. Elecs. Components, Inc., 274 F.3d 1276, 1284 (9th Cir. 2001). We must next consider whether the district court was correct to decide that Kaiser's report to the RCB and participation in the RCB's official investigation into Pardi's case were protected by the state litigation privilege. This question requires us to determine whether a state litigation privilege may be raised as a defense to actions alleged to violate federal civil rights laws. We conclude that the same rationale applies to claims under the ADA. Our holding accords with the decision of the Seventh Circuit in Steffes v. Stepan Co., 144 F.3d 1070, 1074 (7th Cir. 1998). Steffes held the district court erred when it applied a state litigation privilege to bar federal retaliation claims made pursuant to Title VII and the ADA, stating, "[A] state absolute litigation privilege purporting to confer immunity from suit cannot defeat a federal cause of action." Id. Consequently, we hold that Kaiser was not entitled to claim the protection of California Civil Code § 47(b) as a shield from liability for retaliatory acts committed after the settlement.

McGary v. City of Portland, 386 F.3d 1259 (10/2004) We hold that McGary adequately stated a claim under Title II of the ADA when he alleged that the City failed to reasonably accommodate his disability by denying him additional time to participate in the nuisance abatement program without incurring charges. The "benefit" McGary sought in this case was to be allowed sufficient time to comply with the City's code enforcement activities in a manner consistent with his disability. In reversing the district court's dismissal we also recognize that McGary's claim raises some novel issues within this circuit with regard to the extent of a public agency's obligation to accommodate an individual's disabilities in its enforcement of municipal codes. However, the fact that McGary's claim does not fall within the four corners of our prior case law does not justify dismissal under Rule 12(b)(6). On the contrary, Rule 12(b)(6) dismissals "are especially disfavored in cases where the complaint sets forth a novel legal theory that can best be assessed after factual development." Baker v. Cuomo, 58 F.3d 814, 818-19 (2d Cir.), cert. denied sub nom., Pataki v. Baker, 516 U.S. 980, 116 S.Ct. 488, 133 L.Ed.2d 415 (1995), vacated in part on other grounds, 85 F.3d 919 (2d Cir.1996) (en banc). As we have previously observed, " '[t]he court should be especially reluctant to dismiss on the basis of the pleadings when the asserted theory of liability is novel or extreme, since it is important that new legal theories be explored and assayed in the light of actual facts rather than a pleader's suppositions.' "

Christopher S. ex rel. Rita S. v. Stanislaus County Office of Educ, 384 F.3d 1205 (10/2004) Three autistic children (the "Students") who are part of a special education program in Stanislaus County, California, filed an action against the county and local educational authorities ("LEAs") alleging that the policy of providing a shorter school day to autistic students constitutes discrimination in violation of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12101-12213, section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and California anti-discrimination statutes. The district court dismissed the action for failure to exhaust administrative remedies under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400-1485, because the Students had not sought a due process hearing from the State of California. On appeal, the Students argue that the district court erred in dismissing their action for lack of jurisdiction, because they sufficiently exhausted their administrative remedies by pursuing a complaint resolution procedure ("CRP") to completion. We agree, and reverse the district court's dismissal of the case.

Phiffer v. Columbia River Correctional Institute, 384 F.3d 791 (9/2004) Our precedent clearly commands the conclusion that the State is not entitled to Eleventh Amendment immunity under Title II of the ADA. See, e.g., Dare v. California, 191 F.3d 1167, 1175 (9th Cir. 1999); Clark, 123 F.3d at 1270. And, although the State makes a valiant attempt to persuade us that the Supreme Court's decision in Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001), requires us to revisit our precedent, we have already done so and have already rejected the State's claims. See Hason v. Med. Bd. of Cal., 279 F.3d 1167, 1171, reh'g en banc denied 294 F.3d 1166 (9th Cir. 2002), and cert. dismissed 2003 WL 1792116 (U.S. April 7, 2003) (No. 02-479); Thomas v. Nakatani, 309 F.3d 1203, 1209 (9th Cir. 2002) (stating that Hason reaffirmed Clark's and Dare's holding that Congress abrogated sovereign immunity under Title II); Lovell v. Chandler, 303 F.3d 1039, 1050-51 (9th Cir. 2002) (same). We decline further review of our settled precedent. Likewise, our precedent is clear that the State waived its Eleventh Amendment immunity under Section 504 of the Rehabilitation Act by accepting federal funds.

Coons v. Secretary of U.S. Dept. of Treasury, 383 F.3d 879 (9/2004) Appellant Peter Coons was demoted by his employer, the Internal Revenue Service ("IRS"). He alleges that he was demoted in violation of his rights under the Rehabilitation Act for discrimination because of a disability and for requesting reasonable accommodations relating to his disability. Finally, Coons alleges that the IRS demoted him in retaliation for making disclosures protected by the Whistleblower Protection Act ("WPA"), in violation of the Civil Service Reform Act. We hold that the district court correctly found that Coons is not disabled within the meaning of the Rehabilitation Act and that he did not make out a prima facie case for retaliation. However, because Coons made disclosures that are protected under the Whistleblower Protection Act, we reverse in part the district court's grant of summary judgment.

Wong v. Regents of University of California, 379 F.3d 1097 (9/2004) Andrew H.K. Wong alleges that the University of California discriminated against him in violation of the Americans with Disabilities Act ("ADA") and the Rehabilitation Act when it denied his request for learning disability accommodations and subsequently dismissed him for failure to meet the academic requirements of the medical school at the University's Davis campus. The district court granted the University's motion for summary judgment, concluding that Wong failed to present a triable issue of material fact as to whether he was "disabled" and thus legally entitled to special accommodations under those Acts. We admire Wong's determination and his efforts to overcome his impairment, and we can understand his disappointment at not being able to achieve this ambition. As the Supreme Court held in Toyota, however, "[m]erely having an impairment does not make one disabled for purposes of the ADA." 534 U.S. at 195, 122 S.Ct. 681. By the demanding standards of the Acts, Wong is not substantially limited in a major life activity, so he does not qualify for the special protections the Acts provide for someone who is "disabled." AFFIRMED.

Disabled Rights Action Committee v. Las Vegas Events, Inc., 375 F.3d 861 (7/2004) The central question in this Americans with Disabilities Act (ADA) suit is whether the two private entities that stage the National Finals Rodeo at a publicly-owned arena in Las Vegas "operate" the arena during the Rodeo, and so are responsible for assuring compliance with the ADA's public accommodation physical accessibility requirements. The district court thought not. Also at issue is whether the suit can proceed without the participation of the University and Community College System of Nevada (University System), the owner of the arena. The district court ruled that under Rule 19 of the Federal Rules of Civil Procedure, it cannot. We conclude that under the circumstances here, the private groups staging the Rodeo did "operate" the publicly-owned facility during the Rodeo and so can be sued under Title III of the ADA for failure to make a place of public accommodation accessible for disabled individuals. We further conclude that University System is not a necessary party under Rule 19.

Luong v. Circuit City Stores, Inc., 368 F.3d 1109 (5/ 2004) The petition claims that the arbitrator manifestly disregarded Toyota Motor Mfg., Inc. v. Williams, 534 U.S. 184 (2002), in ruling that Circuit City did not violate his rights under the Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213 (ADA). He argues that the allegation of manifest disregard of federal law raises a federal question. We agree that it does, and that the district court had subject matter jurisdiction over Luong's petition. However, the petition fails because the arbitrator did not manifestly disregard Toyota. Accordingly, we affirm.

Lentini v. California Center for the Arts, Escondido, 370 F.3d 837 (5/2004) Plaintiff was denied entrance with her srvioce dog to events by defendant because her dog had barked at two previous events. Plaintiff sued under Title III of the ADA and Californis anti-discrimination act. Court found for plaintiff and awarded damages under Caliofornios act against two of defendant's employees.

Fortyune v. American Multi-Cinema, Inc., 364 F.3d 1075 (4/ 2004) At issue is whether Fortyune had standing to, and in fact did, establish a viable claim of discrimination under the Americans with Disabilities Act ("ADA"). We must also decide whether the district court's injunction requiring AMC to ensure that wheelchair-bound patrons be permitted to sit beside their companions affords such patrons preferential treatment or runs afoul of the specificity requirements set forth in Federal Rule of Civil Procedure 65(d). As explained more fully below, we conclude that Fortyune properly brought and established a claim under the ADA and that the district court's injunction is both nondiscriminatory and adequately specific. We, therefore, affirm the district court's order granting the Fortyunes summary judgment and injunctive relief.

Hernandez v. Hughes Missile Systems Co., 362 F.3d 564 (3/2004) we conclude that Hernandez has presented sufficient evidence from which a reasonable jury could determine that Raytheon refused to re-hire him because of his past record of addiction and not because of a company rule barring re-hire of previously terminated employees.

Rodde v. Bonta, 357 F.3d 988 (2/2004) plaintiffs demonstrated that if the County closes Rancho, it will reduce, and in some instances eliminate, necessary medical services for disabled Medi-Cal patients while continuing to provide the medical care required and sought by Medi-Cal recipients without disabilities. The district court relied on the correct legal standards and its factual findings are supported by the record.Therefore, the district court did not abuse its discretion in concluding that closing Rancho without continuing to provide medically necessary services to disabled individuals elsewhere would constitute discrimination on the basis of disability.

Allen v. Pacific Bell, 348 F.3d 1113 (11/2003) When Allen did not appear for a keyboard test, he lost all further rights to additional accommodation under Pacific Bell's policies and the collective bargaining agreement. Allen claimed that he did not take the test because he feared that he would fail it as he had done twice before. Even if Allen had not passed this test for a third time, however, the company's search for an alternative job would have continued. Because Allen failed to cooperate in the job-search process, we cannot say that Pacific Bell failed to fulfill its interactive duty.

Savage v. Glendale Union High School, Dist. No. 205, Maricopa County, 343 F.3d 1036 (9/2003) This appeal presents the question of whether an Arizona high school district is an arm of the state entitled to Eleventh Amendment immunity from suit in federal court for alleged violations of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101 & 12203 et seq., and the Rehabilitation Act ("RA"), 29 U.S.C. § 794 et seq. We hold that it is not, and affirm the district court.

Fraser v. Goodale, 342 F.3d 1032 (9/2003) In sum, Fraser presented a genuine issue of material fact that her diabetes significantly limits her major life activity of eating. We reverse and remand the district court's disability summary judgment as to this major life activity together with its retaliation counterpart. We affirm the district court's summary judgment as to the major life activities of caring for herself, thinking, and communicating.

Oregon Paralyzed Veterans of America v. Regal Cinemas, Inc. 339 F.3d 1126 (8/2003) In the theaters at issue in this case, wheelchair-bound movie theater patrons must sit in seats that are objectively uncomfortable, requiring them to crane their necks and twist their bodies in order to see the screen, while non-disabled patrons have a wide range of comfortable viewing locations from which to choose. We find it simply inconceivable that this arrangement could constitute "full and equal enjoyment" of movie theater services by disabled patrons. Yet, in rejecting DOJ's interpretation, this is precisely what the district court in this case held: No matter where in the theater the seats are, and no matter how sharp the viewing angle, so long as there is no physical object standing between the disabled patron and the screen, DOJ is not free to interpret its own regulation as requiring anything more. [4] We hold that DOJ's interpretation of "lines of sight comparable to those for members of the general public" in § 4.33.3 to require a viewing angle for wheelchair seating within the range of angles offered to the general public in the stadium-style seats is valid and entitled to deference. Accordingly, the judgment of the district court is reversed, and the case is remanded with instructions to enter summary judgment in favor of the plaintiffs on their ADA claim.

Brown v. City of Tucson, 336 F.3d 1181 (7/2003)  We are sensitive to the Department's contention that too broad a reading of the ADA's interference provision, when viewed in light of the employer's obligation under the Act to "make a reasonable effort to determine the appropriate accommodation" for a disabled employee, 29 C.F.R. Pt. 1630, App. § 1630.9, has the potential to confront employers with potentially conflicting obligations. While we reiterate our belief that action whatsoever that in any way hinders a member of a protected class," Babin, 18 F.3d at 347, we note that the facts in the instant case reveal that Brown already had been granted her accommodation - viz., no night-time call-out duty - by the time Holliday took the actions of which Brown complains. Furthermore, we fail to see how ordering an employee to forego her accommodation or face adverse employment consequences can reasonably be interpreted as part of a "reasonable effort to determine the appropriate accommodation." we conclude, first, that Brown has failed to raise a triable issue of fact with respect to her retaliation claim and, second, that Brown has raised a triable issue of material fact with respect to her interference claim

Echazabal v. Chevron USA, Inc., 336 F.3d 1023 (7/2003) In this action under the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. ("ADA"), we held in an earlier opinion that the "direct threat" defense provided by 42 U.S.C. § 12113 in an ADA discrimination action does not include threats to the employee's own health. Echazabal v. Chevron U.S.A., Inc., 226 F.3d 1063, 1070 (9th Cir. 2000). In Chevron U.S.A. Inc. v. Echazabal, 122 S. Ct. 2045 (2002) ("Echazabal"), the Supreme Court reversed and remanded, holding that the direct threat defense includes threats to an employee's own health. It also held the EEOC's direct threat regulation, 29 C.F.R. § 1630.15(b)(2) (defining the defense to include threats to the employee), to be valid. Id. In light of Echazabal, the only remaining issue on remand is whether Chevron has met the requirements for assertion of the direct threat defense. Specifically, we must decide whether Chevron based its decision upon " `a reasonable medical judgment that relies on the most current medical knowledge and/or the best available objective evidence,' and upon an expressly `individualized assessment of the individual's present ability to safely perform the essential functions of the job,' reached after considering, among other things, the imminence of the risk and the severity of the harm portended." Echazabal, 122 S. Ct. at 2053 (quoting 29 C.F.R. § 1630.2(r) (2001)). We conclude that, on summary judgment, material issues of fact remain; therefore, the district court erred in granting summary judgment to Chevron. We reverse and remand for further proceedings.

Lopez v. Johnson, 333 F.3d 959 (6/2003) Bernard Lopez appeals the district court's summary judgment in favor of the Secretary of Navy on his disability discrimination action for compensatory damages under section 501 of the Rehabilitation Act of 1973 (RHA), 29 U.S.C. § 791. Lopez, whose employer provided computer services as a contractor for the Navy at Puget Sound Naval Shipyard (PSNS), challenges the court's conclusion that there was no evidence that he was a federal employee within the meaning of section 501 when PSNS denied him a handicap parking permit. We affirm.

Cherosky v. Henderson, 330 F.3d 1243 (6/2003) Last year, in National Railway Passenger Corp. v. Morgan, 536 U.S. 101 (2002), the Supreme Court substantially limited the continuing violations doctrine in the context of employment discrimination actions. The Court held that Title VII "precludes recovery for discrete acts of discrimination that occur outside the statutory time period" for filing claims. Id. at 117. In this case, we consider the impact of Morgan on employment decisions that occurred outside of the limitations period, but were made pursuant to an allegedly discriminatory policy that remained in effect during the limitations period. We conclude that Morgan precludes recovery under these circumstances.

Miranda B. v. Kitzhaber, 328 F.3d 1181 (5/2003)  Moreover, before the ADA was enacted, other circuits had determined that Ex parte Young suits were permissible for violations of Title VI and Section 504. See, e.g., Brennan, 834 F.2d at 1253-54 (Section 504 claim can proceed under Ex parte Young). Because Congress is presumed to know the law and to have incorporated judicial interpretations when adopting a preexisting remedial scheme, Cannon v. Univ. of Chi., 441 U.S. 677, 697 (1979); Lorillard v. Pons, 434 U.S. 575, 580-81 (1978), we cannot conclude that Congress intended Ex parte Young not to be applicable for violations of Title II or Section 504.  Here, there is no doubt that the relief sought is prospective injunctive relief only, and the State acknowledges as much. Because Miranda B.'s claims "do[ ] not impose upon the State 'a monetary loss resulting from a past breach of a legal duty on the part of the defendant state officials,' " she may proceed under Ex parte Young. Verizon, 535 U.S. at 646 (emphasis omitted) (quoting Edelman v. Jordan, 415 U.S. 651, 668 (1974)).

Townsend v. Quasim, 328 F.3d 511, (5/2003) Levi Townsend, as representative for a certified class of disabled Medicaid recipients residing in Washington state, appeals a district court's grant of summary judgment in favor of the Secretary ("the Secretary") of the State of Washington's Department of Social and Health Services ("DSHS"). Mr. Townsend contends that the state's use of community-based services to provide essential long term care to some disabled Medicaid recipients but not others violates Title II of the Americans with Disabilities Act ("ADA") and a Department of Justice regulation implementing the ADA and mandating that public entities administer and deliver government services to qualified disabled persons in "the most integrated setting" possible. See 42 U.S.C.§ 12132; 28 C.F.R. § 35.130(d). Because we find that the Secretary's refusal to offer community-based in-home nursing services to some disabled persons may violate the ADA, we reverse the district court's grant of summary judgment for the Secretary. In consideration of the Secretary's arguments that extending eligibility for in-home nursing services to all the state's disabled Medicaid recipients may fundamentally alter the state's Medicaid program, not addressed by the district court, we remand this case for further factual findings and development of the record.

Kaplan v. City of North Las Vegas, 323 F.3d 1226, (4/2003) Plaintiff-Appellant Frederick Kaplan was a peace officer employed by the Defendant-Appellee City of North Las Vegas (City). After being injured in a training exercise, Kaplan could not hold a gun or grasp objects with his right hand. When Kaplan's pain continued after therapy sessions, Kaplan's slow recovery was attributed to rheumatoid arthritis, a conclusion later determined to be a misdiagnosis. Based on this misdiagnosis, the City believed Kaplan's injury was permanent. The City fired Kaplan. Kaplan filed suit under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101, against the City.The complaint alleged that the City discriminated against Kaplan by terminating him from his peace officer position because of a disability, rheumatoid arthritis. Having carefully considered the arguments for and against entitling "regarded as" plaintiffs to reasonable accommodations, we recognize that it is not an easy question because of the language of the statute, but we hold that there is no duty to accommodate an employee in an "as regarded" case. Because Kaplan is not actually disabled, the City did not have a duty to accommodate him. Kaplan could not perform the essential functions of the deputy marshal position and the City did not have a duty to accommodate him. The ADA therefore does not entitle Kaplan to relief. The district court correctly granted summary judgment to the City.

Wells v. Clackamas Gastroenterology Associates, P.C. 271 F.3d 903 (11/2001) Court reversed district court's decision that Clackamas physician/shareholders were more like partners in the corporation and therefore the corporation failed to meet the 15 employee threshhold to be considered an employer under the ADA. Case will be heard by the Supreme Court.

E.E.O.C. v. United Parcel Service, Inc., 306 F.3d 794 (9/2002)  Even if UPS believed that Francis, Ligas and Hogya could not safely drive its package trucks, it does not follow that it regarded them as disabled unless it regarded their vision impairment as substantially limiting their overall ability to see for daily living. See Thompson, 121 F.3d at 541 (as 25-pound weight restriction does not amount to a substantial limitation on the ability to lift, the fact that the hospital believed employee was incapable of lifting 25 pounds did mean that it regarded her as disabled). [7] Given the district court's familiarity with the evidence, and the possible need for additional input from the parties, it is in a far better position than we to make this determination. Accordingly, we remand for findings and conclusions as to whether UPS regarded Francis, Ligas or Hogya as having a limiting, but not substantially limiting, vision impairment on the one hand, or on the other hand, incorrectly regarded them as having an impairment that substantially and significantly limits their overall seeing for purposes of daily life.

Lovell v. Chandler, 303 F.3d 1039 (9/2002) By categorically excluding all disabled persons from QUEST, the State had knowledge of its own facially discriminatory conduct and notice of the effects of its conduct on Lovell, Delmendo, and similarly situated disabled people. In so discriminating, and in failing to alleviate the impact of this discrimination on the disabled who remained without any coverage, the State acted with at least deliberate indifference.  Accordingly, regardless of the State's asserted long-term motivations or competing interests, we conclude that the State's facial exclusion of the disabled from QUEST entitles Lovell and Delmendo to compensatory damages as a matter of law.

Zivkovic v. Southern California Edison Co., 302 F.3d 1080 (9/2002)  Because the district court failed to make complete factual findings, we vacate the district court's judgment and remand with the instruction that the district court make clear findings in accordance with Rule 52(a) and specifically determine, in light of those findings, whether Edison: (1) appropriately engaged in the interactive process; (2) offered a reasonable accommodation; and/or (3) discriminated against Zivkovic by not hiring him. See Norris, 900 F.2d at 1332. The district court's procedural rulings are affirmed.

Bird v. Lewis & Clark College, 303 F.3d 1015 (3/2002)  Arwen Bird ("Bird") appeals the judgment in favor of Lewis & Clark College and a number of school administrators (collectively, "the College"). Bird alleges, among other claims, that the College discriminated against her on the basis of disability, in violation of the Rehabilitation Act ("Rehab Act"), 29 U.S.C. § 794 et seq., and Title III of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12181 et seq. We have jurisdiction pursuant to 28 U.S.C. § 1291, and affirm

Barden v. City of Sacremento, 292 F.3d 1073 (6/2002) We must decide whether public sidewalks in the City of Sacramento are a service, program, or activity of the City within the meaning of Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12132, or § 504 of the Rehabilitation Act, 29 U.S.C. § 794. We hold that they are and, accordingly, that the sidewalks are subject to program accessibility regulations promulgated in furtherance of these statutes.  We therefore reverse the order of the district court and remand for further proceedings.

Hernandez v. Hughes Missle Systems Co., 292 F.3d 1038 (6/2002)  In sum, we hold that Hernandez has made a prima facie case of discrimination on the basis of a disability. He has presented sufficient evidence from which a jury could conclude that he was "qualified" for the position he sought in 1994 and that his application was rejected because of his record of drug addiction. Additionally, we hold that a policy that serves to bar the re-employment of a drug addict despite his successful rehabilitation violates the ADA. Therefore, Hughes's unwritten policy that it will not rehire employees who left the company due to violations of personal conduct rules violates the ADA, as applied to employees with the disability of drug addiction who were terminated for illegal drug use in the workplace but are now rehabilitated. Accordingly, summary judgment was improper. We reverse and remand for proceedings consistent with this opinion.

Thornton v. McClatchy Newspapers, Inc., 292 F.3d 1045 (6/2002) We concede that Thornton's life has been diminished by her inability to engage in continuous keyboarding or hand-writing. But diminished is different from "substantially limited," at least as understood by Congress and the Supreme Court. For this reason, our earlier judgment — that the district court's grant of summary judgment on Thornton's ADA claims should be affirmed — was correct.

Vinson v. Thomas, 288 F.3d 1145 (5/2002) Court held that by its acceptance of federal Rehabilitation Act funds, the State
waived its Eleventh Amendment immunity as to Vinson's claim under section 504 of the Rehabilitation Act.

Thompson v. Davis, 282 F.3d 780 (3/2002) The district court dismissed the complaint for failure to state a claim on the ground that
the ADA does not apply to the substantive decision-making process of parole proceedings. Circuit court concluded that there is no
categorical rule excluding parole decisions from the scope of the ADA, and reversed the ruling of the district court and remanded for
further proceedings.

Hason v. Medical Bd. of California, 279 F.3d 1167 (2/2002) Dr. Michael J. Hason appeals the dismissal of his pro se complaint alleging discrimination based on disability in violation of the United States Constitution and Title II of the Americans with Disabilities Act ["ADA"]. We have jurisdiction pursuant to 28 U.S.C. § 1291. For the reasons that follow we reverse and remand.

Hutton v. Elf Atochem North America, Inc., 273 F.3d 884 (11/2001)  The key question in this case is whether Title II of the Americans With Disabilities Act of 1990 (ADA or Act), 42 U.S.C. §§ 12132- 12134 (1994), requires a state's long-term disability plan to provide equal benefits for mental and physical disabilities. We hold that it does not.

Morton v. United Parcel Service, Inc., 272 F.3d 1249 (11/2001)  The district court erred in holding that the collective bargaining agreement barred Morton's requested accommodation. The court also erred in granting summary judgment to UPS in the face of conflicting evidence as to the logistical and safety-related reasons UPS offered for not hiring Morton.

Long v. Coast Resorts, Inc., 267 F.3d 918 (10/2001)  This appeal was timely filed. The magistrate judge's ruling that the non-compliance of the bathroom doors in the"standard" rooms does not require injunctive relief is REVERSED and the issue is REMANDED for issuance of such injunctive relief. The magistrate judge's ruling that the pool cabanas comply with the ADA is AFFIRMED. The magistrate judge's ruling that the elevated employee work areas inside the slot change kiosks do not violate the ADA is REVERSED and the issue is REMANDED for issuance of proper injunctive relief. The magistrate judge's ruling that the slot change kiosk counters are not in violation of the ADA is REVERSED and the issue is REMANDED for issuance of proper injunctive relief. The magistrate judge's ruling that the seating at the bars in the "pit" area violates the ADA is VACATED and the issue is remanded for a factual determination pursuant to this opinion. The magistrate judge's ruling that plaintiffs did not allege injury sufficient to survive summary judgment on a claim under the Nevada ADA is AFFIRMED. Finally, the award of attorney's fees is VACATED and fees will be recalculated after proper disposition of the remanded issues.

Cripe v. City of San Jose, 261 F.3d 877 (8/2001)  We conclude that the district court erred in granting summary judgment for the City. Assuming the facts are as the plaintiffs have presented them, as we must when reviewing the summary judgment order in favor of the City, we conclude that the plaintiffs are not categorically unable to perform the essential functions of the "specialized assignments" they seek, even though they may be unable to make forcible arrests and subdue suspects. They are, rather, for purposes of this appeal, "qualified individual[s] with . . . disabilit[ies]." Accordingly, the ADA prohibits discrimination against them on the basis of their disabilities, in the absence of a valid "business necessity defense." No evidence that would support such a defense has been offered here. In addition, if the facts are as the plaintiffs have presented them, then the City's policies also unlawfully deny them the opportunity to advance to the rank of sergeant. Finally, the district court erred in ruling for the City on the FEHA claim. Accordingly, we REVERSE and REMAND for proceedings consistent with this opinion.

Duvall v. County of Kitsap, 260 F.3d 1124 (8/2001) In sum, genuine issues of material fact exist as to whether Botta, Razey, Richardson, and the County intentionally dis-criminated against Duvall in violation of the ADA and the Rehabilitation Act, and also violated the anti-discrimination provisions of the WLAD... In sum, genuine issues of material fact exist as to whether Botta, Razey, Richardson, and the County intentionally dis-criminated against Duvall in violation of the ADA and the Rehabilitation Act, and also violated the anti-discrimination provisions of the WLAD...

Thornton v. McClatchy Newspapers, Inc., 261 F.3d 789 (8/2001)  We concede that Thornton's life has been diminished by her inability to engage in continuous keyboarding or handwriting. But diminished is different from "substantially limited," at least as understood by Congress and the Supreme Court. For this reason, our earlier judgment --- that the district court's grant of summary judgment on Thornton's ADA claims should be affirmed --- was correct.

Lonberg v. Sanborn Theaters Inc., 259 F.3d 1029 (8/2001)  We must decide whether an architect can be held liable for designing a movie theater which is not in compliance with the Americans with Disabilities Act.  We therefore hold that only an owner, lessee, lessor, or operator of a noncompliant public accommodation can be liable under Title III of the ADA for the "design and construct" discrimination described in § 12183(a). Because it is conceded that STK is not such a person, STK cannot be held liable for the "failure to design and construct" Market Place in a manner compliant with the ADA.10 As a result, we agree that partial summary judgment in favor of STK was appropriate in this case, albeit on a different ground than that asserted by the district court.

Lee v. City of Los Angeles, 250 F.3d 668 (5/2001)   Quite simply, the ADA's broad language brings within its scope " `anything a public entity does.' " Pennsylvania Dep't of Corr. v. Yeskey, 118 F.3d 168, 171 & n.5 (3d Cir. 1997), aff'd 524 U.S. 206 (1998) (quoting 28 C.F.R. Pt. 35, App. A, preamble to ADA regulations). This includes programs or services provided at jails, prisons, and any other " `custodial or correctional institution.' " Id. "[A]lthough `[i]ncarceration itself is hardly a "program" or "activity" to which a disabled person might wish access,' " mental health services and other activities or services undertaken by law enforcement and provided by correctional facilities to those incarcerated are "services, programs, or activities of a public entity" within the meaning of the ADA. Armstrong, 124 F.3d 5568 at 1023-24 (quoting Crawford, 115 F.3d at 483 (internal citation omitted) (alteration in original)); see also Yeskey, 524 U.S. at 209. Certainly, if " `prisoners do not park [their rights against discrimination] at the prison gates,' " Armstrong, 124 F.3d at 1025 (quoting Crawford, 115 F.3d at 486), pretrial detainees do not do so either, see Gorman, 152 F.3d at 913 (holding that wheelchair-bound arrestee has valid claim under ADA where local police "denied him the benefit of post-arrest transportation appropriate in light of his disability"). In the instant action, the district court did not err in dismissing plaintiffs' ADA claim for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). The district court erred, however, when it dismissed the plaintiffs' ADA claim under Rule 12(b)(6) without leave to amend.12 Under our case law, "dismissal without leave to amend is improper unless it is clear, upon de novo review, that the complaint could not be saved by any amendment." Chang, 80 F.3d at 1296; see also Schneider v. California Dep't of Corr., 151 F.3d 1194, 1196 (9th Cir. 1998). Because it is not clear that plaintiffs' ADA claim cannot be saved by amendment, we remand this matter to the district court so that plaintiffs may have the opportunity to amend their ADA claim.

Brown v. Lucky Stores, Inc., 246 F.3d 1182 (4/2001)  This appeal requires us to address the scope of the ADA's so-called "safe harbor" provision, 42 U.S.C.§ 12114(b)(2), which extends the Act's protections to an individual"participating in a supervised rehabilitation program, and .. . no lon-ger engaging in" the illegal use of drugs. We hold that the "safe harbor" provision applies only to employees who have refrained from using drugs for a significant period of time. b We also address the standard to be used in denying costs to a prevailing defendant under the ADA, and hold that such an award is appropriate only if the claim was frivolous, unreasonable or lacking foundation. We affirm in part, reverse in part and remand.

Humphrey v. Memorial Hospitals Ass'n, 239 F.3d 1128 (2/2001) Humphrey has presented sufficient evidence to create
a triable issue of fact as to whether her attendance problems were caused by OCD. In sum, a jury could reasonably find the requisite causal link between a disability of OCD and Humphrey's absenteeism and conclude that MHA fired Humphrey because of her disability.

Snead v, Metropolitan Property & Cas. Ins. Co., 237 F.3d 1080 (1/2001)  We hold that when entertaining motions for summary judgment in employment discrimination cases arising under state law, federal courts sitting in diversity must apply the McDonnell Douglas burden-shifting scheme as a federal procedural rule. Applying that scheme here, we conclude that, although she has made out a prima facie case, Snead has failed to raise a genuine issue of material fact that Met's reason for her termination was pretextual. Accordingly, we affirm the district court's grant of summary judgment in favor of defendants.

Willis v. Pacific Maritime Ass'n, 236 F.3d 1160 (3/2001)  We must consider for the first time whether the Americans with Disabilities Act ("ADA"), 42 U.S.C. SS 12101-12213, requires an employer to violate the seniority provisions of a collective bargaining agreement to accommodate a disabled employee. We affirm because we conclude that such an accommodation would be per se unreasonable where, as here, the collective bargaining agreement contains bona fide senior- ity provisions.

Downey v. Crowley Marine Services, Inc., 236 F.3d 1019 (1/2001)  Crowley's duty to accommodate was triggered by notice that Downey's MS interfered with his ability to perform his job as marine operations engineer. The district court improperly granted Crowley summary judgment on Downey's failure to accommodate claim. Because a genuine issue of material fact remains concerning whether there were jobs available at Crowley which Downey could have performed with or without accommodation, we reverse the district court's grant of summary judgment and remand the case for trial on this issue.

Barnett v. U.S. Air, Inc., 228 F.3d 1105 (10/2000)  Barnett, who suffered a serious back injury while on the job, argues that U.S. Air discriminated against him by denying him accommo- dation, by failing to engage in the interactive process and by retaliating against him for filing charges with the Equal Employment Opportunity Commission (EEOC). This appeal raises several issues of first impression in this circuit, includ- ing the nature and scope of an employer's obligation to engage in the interactive process, whether reassignment is a reasonable accommodation in the context of a seniority sys- tem and the appropriate standard for evaluating retaliation claims under the ADA. We reverse the district court's grant of summary judgment in favor of U.S. Air on all claims except for the retaliation claim and we remand for trial.

Echazabal v. Chevron USA, Inc., 213 F.3d 1098 (2000)  On this appeal, the principal question we consider is whether the "direct threat" defense available to employers under the Americans with Disabilities Act applies to employ- ees, or prospective employees, who pose a direct threat to their own health or safety, but not to the health or safety of other persons in the workplace. We conclude that it does not.

Brauling v. Countrywide Home Loans Inc., 220 F.3d 1154 (2000)  According to Braunling, her computer-related problems were corrected by January 1997. After this date, Braunling's performance was still substandard until her termination in April 1997. A transfer to another supervisor would not have affected this situation and therefore Braunling cannot show that she could perform the essential functions of her position even with the accommodation she suggested to Countrywide.

Deppe v. United Airlines, 217 F.3d 1262 (2000) when considered with the essentially unchallenged permanent and stationary medical limitations, could lead a rational trier of fact to conclude that those responsible for the termination regarded Deppe as sig- nificantly restricted in his ability to perform a broad range of jobs in various classes, as compared to others with compara- ble levels of skill, training, and experience.14 Because the court must draw all inferences in favor of the non-moving party in a summary judgment consideration, and may not make credibility determinations, the grant of summary judg- ment in the instant case was inappropriate.

Frank v. United Airlines, Inc., 216 F.3d 845 (2000)  We affirm the district court's decision granting sum- mary judgment for United on named plaintiffs' individual claims under the ADA and their corresponding claims under FEHA. The district court correctly concluded that none of the named plaintiffs presented evidence to make a prima facie case that their eating disorders "substantially limited" a major life activity and were therefore disabilities within the meaning of the ADA. See Albertsons, Inc. v. Kirkingburg , 119 S. Ct. 2162, 2169 (1999). A major life activity is a function such as "caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. " 29 C.F.R. S 1630.2. While eating disorders can substantially limit major life activities, they have not presented evidence that their eating disorders have that effect.

Botosan v. Paul McNally Realty, 216 F.3d 827 (2000) Appellants argue, inter alia, that Appellee is not entitled to recovery because: (1) he did not provide notice of his ADA claim to a state or local agency charged with administering the relevant civil rights laws before filing suit; (2) McNally Realty assumed all liability for ADA compliance in its lease with the Rustons; (3) he did not prove actual damages; and (4) the ADA is an unconstitutional exercise of Congress' commerce power and unconstitutionally vague. The district court ruled in favor of Appellee on all arguments. We affirm.

Jankey v. Twentieth Century Fox Film Corp, 212 F.3d 1159 (2000)  Title II of the Civil Rights Act, in turn, exempts from coverage any "private club or other establishment not in fact open to the public." 42 U.S.C. S 2000a(e) (emphasis added); see also Clegg v. Cult Awareness Network, 18 F.3d 752, 755 n.3 (1994) ("Only when the facilities are open to the public at large does Title II govern."). Given the plain language of S 12187 and S 2000a(e), we reject Jankey's contention that Title III applies to a facility described in 42 U.S.C. S 12181(7) regardless of whether it is open to the public. Because Jankey does not dispute that the Facilities are "establishment[s] not in fact open to the public " our analysis needs go no farther.

Echazabal v. Chevron USA, Inc., 213 F.3d 1098 (2000)  the principal question we consider is whether the "direct threat" defense available to employers under the Americans with Disabilities Act applies to employ- ees, or prospective employees, who pose a direct threat to their own health or safety, but not to the health or safety of other persons in the workplace. We conclude that it does not.

Harris v. Harris & Hart, Inc., 206 F.3d 838 (2000)  Defendant's request for a medical release as a prerequisite to re-hiring plaintiff, a former employee with a known disability, did not run afoul of the ADA. Neither the letter nor the spirit of the ADA was offended by the request. As a matter of law, defen- dant's actions did not violate the ADA's prohibition on pre- employment medical examinations or inquiries.

Martin v. PGA Tour, Inc., 204 F.3d 994 (2000)  PGA Tour, Inc. ("PGA") appeals from the district court's decision in favor of Casey Martin, a disabled professional golfer, ordering PGA to make an exception to its "walking rule" to allow Martin to ride a golf cart during PGA competi- tions. We conclude that the Americans with Disabilities Act ("ADA") applies to PGA competitions and that allowing Mar- tin to use a cart is a reasonable accommodation that does not fundamentally alter the nature of those events. We therefore affirm the district court's decision.

Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104 (2000)  Olmstead does not speak to insurance classifications such as the one at issue. Olmstead spoke to segregation of the disabled through unwarranted institutional confinement. Applying Olmstead to insurance classifications would conflict with the Court's decisions in Alexander v. Choate80 and Traynor v. Turnage,81 which both endorse distinctions between types of disabilities, and Congress's clear instruction in the insurance safe harbor that the Act was not intended to reach common insurance practices such as underwriting of risks.

Broussard v. University of California at Berkeley, 192 F.3d 1252 (1999)  We conclude that Broussard is not substantially limited in the major life of activity of working, and that she is, thus, not disabled under the terms of the ADA. Therefore, we need not consider the second question of whether Broussard was a qualified individual who could perform the essential functions of her job, with or without reasonable accommodation.

McAlindin v. County  of San Diego, 192 F.3d 1226 (1999)  Richard McAlindin, who has been diagnosed as suffering from anxiety disorders, panic disorders, and somatoform disorders,1 appeals the district court's grant of summary judg- ment on his Americans with Disabilities Act ("ADA") claim. McAlindin also appeals the district court's grant of summary judgment on his claim that the County of San Diego ("the County") retaliated against him for asserting his rights under the ADA. We hold that sleeping, engaging in sexual relations, and interacting with others are "major life activities" under the ADA, and that McAlindin has raised a triable issue as to whether he is substantially limited in a major life activity. We reverse the grant of summary judgment on the ADA claim and remand for further proceedings. However, we affirm the district court's grant of summary judgment on the retaliation claim.

McGregor v. National R.R. Passanger Corp., 187 F.3d 1113 (1999)  We affirm the district court's denial of McGregor's motion for summary judgment. We reverse the district court's grant of summary judgment in favor of Amtrak, and we remand for a determination on the issues whether McGregor was prohib- ited from bidding on an open position, and whether she could have been accommodated had she done so.

Fredenburg v. Contra Costa County Dept. of Health Services, 172 F.3d 1176 (1999)  Fredenburg had applied for and received state temporary disability insurance benefits available to workers who, because of a physical or mental condition, are "unable to perform [their] regular or customary work." Cal. Unemp. Ins. CodeSS 2601, 2626, 2653. The district court held that this fact judicially estopped Fredenburg from establishing that she is a "qualified individual with a disability" under S 12112(a) of the ADA. We conclude that Fredenburg is not judicially estopped, and we accordingly reverse the judgment of the district court.