Susan Heaton v. Prudential Insurance Company of America;

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SUSAN HEATON,
Plaintiff - Appellant,
v.
PRUDENTIAL INSURANCE
COMPANY OF AMERICA; et al.,
Defendants - Appellees.
No. 08-55874
D.C. No. 3:06-cv-01403-J-NLS
MEMORANDUM *
Appeal from the United States District Court
for the Southern District of California
Napoleon A. Jones, Jr., District Judge, Presiding
Argued and Submitted October 5, 2009
Pasadena, California
Before: HALL, W. FLETCHER and CLIFTON, Circuit Judges.
Susan Heaton appeals the district court’s order granting defendants’ motion
for summary judgment. Because the record manifests a genuine factual dispute
about whether Heaton became totally disabled while she was a full-time Isis
FILED
NOV 23 2009
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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employee, summary judgment was improper. We vacate the judgment below and
remand for further proceedings.
Heaton’s eligibility for benefits turns on whether she met her long-term
disability plan’s definition of “total disability” while she was a full-time Isis
employee covered by the plan.
A factual dispute over the extent of Heaton’s disability arose before
Heaton’s last day of full-time employment at Isis on April 27, 2000, when she was
indisputably a “Covered Person” under the plan. Prudential and Isis do not dispute
that Heaton continued to work at her own occupation through April 27, 2000.
Whether Heaton met the plan’s definition of “total disability” before April
27, 2000 depends on whether, before that date, she was “not able to perform, for
wage or profit, the material and substantial duties of [her] occupation” because of
her disability. Heaton submitted evidence that the usual requirements of her
position included ten to twelve hours of work per day, with computer and
handwriting tasks for more than eight hours per day; that her doctors imposed
substantial restrictions on her activities that left her well short of being able to meet
these requirements; and that two doctors believed that she was disabled or
otherwise unable to perform her “regular work” while she was a full-time

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employee at Isis. That was more than enough to establish a genuine issue of
material fact.
Defendants would, in effect, require a negative productivity report, a poor
job performance evaluation, or a memo regarding the quality of Heaton’s work to
establish total disability. They argue that Isis provided accommodations to allow
Heaton to remain in her job and did not evaluate her poorly because of her physical
limitations. But that does not conclusively establish that she was not “totally
disabled.” That a sympathetic employer might make such accommodations or
tolerate an individual’s limitations for at least some period of time does not prove
that the employee was in fact able to perform “the material and substantial duties
of [her] occupation.” A reasonable jury could find, through its own comparison of
medical restrictions and the usual requirements of the employee’s job, that the
employee was simply not physically capable of performing the tasks her job
required at the relevant time. An employer’s failure to come to that same
conclusion—or to bother to register its dissatisfaction in the form of a negative
performance review—would not conclusively undermine such a reasonable jury
determination.
VACATED and REMANDED.

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