Carmen Melone v. Paul Evert’s Rv Country, Inc.

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
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NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CARMEN MELONE,
Plaintiff - Appellant,
v.
PAUL EVERT’S RV COUNTRY, INC.,
Defendant - Appellee.
No. 10-17730
D.C. No. 2:08-cv-00868-GWF
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
George W. Foley, Magistrate Judge, Presiding
Argued and Submitted October 12, 2011
San Francisco, California
Before: B. FLETCHER, REINHARDT, and TASHIMA, Circuit Judges.
Carmen Melone sued his former employer, Paul Evert’s RV Country, Inc.,
(“Paul Evert’s”) alleging that his employment was terminated in violation of the
Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq. Melone
FILED
OCT 26 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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underwent a radical prostatectomy to treat his prostate cancer and subsequently had
difficulty walking and standing. After a four-day trial, the jury reached a verdict
for Melone. The district court subsequently granted judgment as a matter of law in
favor of Paul Evert’s. The district court concluded that Melone failed to present
sufficient evidence that he was substantially limited in the major life activities of
walking and standing and therefore was not disabled under the ADA. Melone
appeals. We have jurisdiction under 28 U.S.C. § 1291.
We review a grant of judgment as a matter of law de novo. Costa v. Desert
Palace, Inc., 299 F.3d 838, 859 (9th Cir. 2002) (en banc). “A jury’s verdict must
be upheld if it is supported by substantial evidence.” Johnson v. Paradise Valley
Unified Sch. Dist., 251 F.3d 1222, 1227 (9th Cir. 2001). “Substantial evidence is
evidence adequate to support the jury’s conclusion, even if it is also possible to
draw a contrary conclusion from the same evidence.” Id.
Melone testified about numerous occasions on which he had difficulties
walking and standing. He stated more than once that he “had problems” walking
and standing and that walking was painful. “Although the evidence was far from
overwhelming and the jury was not compelled to conclude” that Melone was
disabled “neither can it be said that the jury’s conclusion to that effect was
unsupported by substantial evidence.” Id. at 1229.

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1 The Americans with Disabilities Amendment Act (ADAA) overturns
Toyota. See Pub. L. No. 110-325, 122 Stat. 3553 (2008), codified at 42 U.S.C. §
12101 et seq. The ADAA took effect on January 1, 2009. Id. The ADAA does
not apply retroactively. Becerril v. Pima Cnty. Assessor’s Office, 587 F.3d 1162,
1164 (9th Cir. 2009) (per curiam). The ADAA therefore does not apply to this
case.
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Melone’s testimony focused on his difficulties walking and standing at
work. The plaintiff in an ADA case generally cannot rely on evidence that he was
restricted in performing activities only related to his job. Toyota Motor Mfg., Ky.,
Inc. v. Williams, 534 U.S. 184, 201–02 (2002). 1 Melone’s testimony, however,
was sufficient for a reasonable jury to infer that Melone’s cancer significantly
restricted the manner and duration of his walking outside of work as compared
with the average person in the general population. See 29 C.F.R. § 1630.2(j)(1)
(2007).
REVERSED and REMANDED for entry of judgment in favor of Plaintiff-
Appellant Melone in accordance with the jury verdict and the district court’s
rulings on back pay and front pay.

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