Julia Taylor v. Renown Health

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JULIA TAYLOR,
Plaintiff-Appellant,
v.
RENOWN HEALTH,
Defendant-Appellee.
No. 15-15096
D.C. No.
3:13-cv-00185-RCJ-WGC
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, District Judge, Presiding
Submitted December 14, 2016**
San Francisco, California
Before: HAWKINS, BERZON, and MURGUIA, Circuit Judges.
Julia Taylor appeals the district court’s grant of summary judgment in her
suit against prospective employer Renown Health (Renown), in which she alleged
Renown violated the Americans with Disabilities Act (ADA) by rescinding a
FILED
JAN 10 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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conditional job offer after obtaining the results of a pre-employment medical exam.
Reviewing the district court’s summary judgment order de novo, we affirm. See
Leonel v. Am. Airlines, Inc., 400 F.3d 702, 708 (9th Cir. 2005).
1. “To sustain a claim under the ADA, [Taylor] must show that (1) [s]he
is ‘disabled’ within the meaning of the Act; (2) [s]he is a ‘qualified individual’
within the meaning of the Act; and (3) [s]he was terminated because of h[er]
disability.” Kaplan v. City of N. Las Vegas, 323 F.3d 1226, 1229 (9th Cir. 2003).
There are three ways to be “disabled” under the ADA, including “being
regarded as [disabled].” See Weaving v. City of Hillsboro, 763 F.3d 1106, 1111
(9th Cir. 2014), cert. denied sub nom. Weaving v. City of Hillsboro, Or., 135 S. Ct.
1500, 191 L. Ed. 2d 431 (2015). The “regarded as” disabled category requires only
that Taylor was subjected to a prohibited action on the basis of an actual or
perceived physical or mental impairment, whether or not that impairment was an
actual or perceived disability. 42 U.S.C. § 12102(3)(A).
To satisfy the “qualified individual” prong in a “regarded as” disabled case,
Taylor must make a prima facie showing that she was able to perform the essential
functions of the job without accommodation. See Kaplan, 323 F.3d at 1230.
“[T]here is no duty to accommodate an employee in an ‘as regarded’ case.” Id. at
1233.
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Renown decided not to hire Taylor for a Certified Nursing Assistant (CNA)
position in its telemetry unit on the basis of a physical impairment noted in
Taylor’s pre-employment medical evaluation. Thus, Taylor made a prima facie
showing that she was “regarded as” disabled by Renown.
However, Taylor did not present evidence that she could perform the
essential functions of the CNA job without accommodation. The CNA job
description and declarations from employees in the telemetry unit established that
lifting more than fifty pounds and lifting above shoulder-level were essential job
functions, as telemetry CNAs must ambulate overweight and obese patients several
times a day. Evidence from Taylor’s other CNA jobs demonstrated those positions
rarely required the type of lifting that was routine at Renown, and generally
indicated Taylor’s difficulty with completing heavy lifting tasks when they did
arise. Additionally, Taylor admitted that she had a condition that restricts her
ability (1) to lift; (2) to lift over 50 pounds; and (3) to lift her left arm above
shoulder-level.
We accordingly affirm the district court’s grant of summary judgment to
Renown as to whether Taylor was unable to perform the essential lifting functions
at Renown without accommodations.
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2. In addition to barring intentional discrimination, the ADA “prohibit[s]
medical examinations and inquiries until after the employer has made a ‘real’ job
offer to an applicant.” Leonel, 400 F.3d at 708. Here, the physical examination was
a “medical evaluation” under the statute. See Indergard v. Georgia-Pac. Corp.,
582 F.3d 1049, 1054 (9th Cir. 2009) (noting that range of motion and muscle
strength tests—which were conducted as part of Taylor’s physical—are considered
medical examinations under the Equal Employment Opportunity Commission’s
guidance).
“[P]laintiffs need not prove that they are qualified individuals with a
disability in order to bring claims challenging the scope of medical examinations
under the ADA.” Fredenburg v. Contra Costa Cty. Dep’t of Health, 172 F.3d
1176, 1182 (9th Cir. 1999). But “Congress’ role in identifying and elevating
intangible harms does not mean that a plaintiff automatically satisfies the [Article
III] injury-in-fact requirement whenever a statute grants a person a statutory right
and purports to authorize that person to sue to vindicate that right. Article III
standing requires a concrete injury even in the context of a statutory violation.”
Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1549, 194 L. Ed. 2d 635 (2016).
Here, Taylor has not demonstrated a concrete injury from the timing of the
medical exam. The sequenced evaluation requirements of 42 U.S.C. § 12112(d)(2)
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protect against two types of injuries: first, injuries arising out of a lack of clarity
regarding “whether [applicants] were ‘rejected because of disability, or because of
insufficient skills or experience or a bad report from a reference;’” and secondly,
injuries to those who wish to keep information about “hidden medical conditions”
private until “they have been assured that as long as they can perform the job’s
essential tasks, they will be hired.” Leonel, 400 F.3d at 709 (quoting Equal
Employment Opportunity Commission, ADA Enforcement Guidance:
Preemployment Disability-Related Questions and Medical Examinations, 1
(1995)).
Renown did not dictate the order in which the further checks would be
carried out after the conditional job offer; it specified the immediate scheduling of
the medical examination, not the timing of the examination. And Renown did make
perfectly clear that Taylor’s shoulder impairment was the reason the employer
rescinded the conditional job offer. Consequently, neither the conditional privacy,
nor the notice, injuries protected against by the statute occurred. Because Taylor
failed to establish a concrete injury from voluntarily scheduling the examination
and answering medical inquiries before Renown completed all other pre-
employment evaluations, she has no standing to bring a claim under 42 U.S.C. §
12112(d).
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AFFIRMED.
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