Rohr v. Salt River Project ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LARRY ROHR, 
Plaintiff-Appellant,
v. No. 06-16527
SALT RIVER PROJECT AGRICULTURAL  D.C. No.
CV-04-03015-FJM
IMPROVEMENT AND POWER DISTRICT,
a political subdivision of the State OPINION
of Arizona,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Arizona
Frederick J. Martone, District Judge, Presiding
Argued and Submitted
July 15, 2008—San Francisco, California
Filed February 13, 2009
Before: Richard A. Paez and Marsha S. Berzon, Circuit
Judges, and Harold Baer, Jr.,* Senior District Judge.
Opinion by Judge Baer
*The Honorable Harold Baer, Jr., United States Senior District Judge
for the Southern District of New York, sitting by designation.
1813
1816 ROHR v. SALT RIVER PROJECT
COUNSEL
Linda D. Skon, Law Office of Linda D. Skon, Mesa, Arizona,
for the plaintiff-appellant.
John J. Egberg, Esq., Jennings, Strauss & Salmon, P.L.C.,
Phoenix, Arizona, for the defendant-appellee.
OPINION
BAER, Senior District Judge:
Larry Rohr appeals the district court’s grant of summary
judgment in favor of his former employer, Salt River Project
Agricultural Improvement and Power District (“Salt River”).
Rohr, who is an insulin-dependent type 2 diabetic, brought
suit for employment discrimination in violation of the Ameri-
cans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101, et
ROHR v. SALT RIVER PROJECT 1817
seq. Because the district court erred in concluding that Rohr
was neither “disabled” nor a “qualified individual” under the
ADA, we vacate the district court’s order of summary judg-
ment and remand for further proceedings consistent with this
opinion.
At the outset, we note that on September 25, 2008, while
this decision was pending, the ADA Amendments Act of
2008 (“ADAAA”) was signed into law in order “[t]o restore
the intent and protections of the Americans with Disabilities
Act of 1990.” Pub. L. No. 110-325, 122 Stat. 3553 (2008). In
the ADAAA, Congress emphasizes that when it enacted the
ADA in 1990, it “intended that the Act ‘provide a clear and
comprehensive national mandate for the elimination of dis-
crimination against individuals with disabilities’ and provide
broad coverage.” Id. § 2(a)(1), 122 Stat. at 3553 (emphasis
added). The ADAAA rejects the Supreme Court’s interpreta-
tion of the term “disability” in Sutton v. United Air Lines,
Inc., 527 U.S. 471 (1999), and Toyota Motor Manufacturing,
Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), and thereby
expands the class of individuals who are entitled to protection
under the ADA. Id. § 2(b), 122 Stat. at 3553. Indeed, Con-
gress signifies that as a result of these Supreme Court cases,
“lower courts have incorrectly found in individual cases that
people with a range of substantially limiting impairments are
not people with disabilities.” Id. § 2(a)(5), 122 Stat. at 3553.
Although the ADAAA, if applicable, would provide addi-
tional support for Rohr’s claims in this case, we hold that,
even under our pre-ADAAA case law, Rohr provided suffi-
cient evidence that he was a “qualified individual” with a
“disability” under the ADA to survive summary judgment.
We therefore need not decide whether the ADAAA, which
took effect on January 1, 2009, applies retroactively to Rohr’s
claims.
1818 ROHR v. SALT RIVER PROJECT
I. BACKGROUND
A. Rohr’s Job at Salt River
From May 1981 to June 14, 2004, Rohr worked as a weld-
ing metallurgy specialist in the Plant Technical Support
Group at Salt River, which provides utility services to homes
in Arizona. [ER 2, 3.] The Plant Technical Support Group
was composed of specialists in various fields, including weld-
ing metallurgy, turbines, boilers and cathodic protection, as
well as the quality assurance staff. [ER 16.] The group’s
objective was to address problems that Salt River’s power
plants could not solve on their own. [ER 16.] For example, if
a power plant requested a new welding procedure, the special-
ists in the Plant Technical Support Group would design it.
[ER 17.] The Plant Technical Support Group performed
audits, reviewed paperwork on the plants to determine
whether any applicable code had been violated and responded
to third-party inspections. Rohr characterizes the group’s
work as mostly “engineering-type support.” [ER 17-18.]
As a metallurgy specialist, Rohr was primarily responsible
for overseeing all aspects of Salt River’s welding procedures,
maintaining Salt River’s welding manual, training all welding
personnel, reviewing and auditing the work of subcontractors,
ensuring that all welding procedures complied with applicable
codes and specifications, advising Salt River on the purchase
of new welding equipment, and counseling less experienced
welders. [ER 17-19, 61.] While he often traveled to individual
power plants to perform inspections and to train welders,
engineers and welding inspectors [ER 19], he claims that the
majority of his work was in an office environment. [ER 17-
18, 105.]
The Plant Technical Support Group was rarely required to
travel, but occasionally, when outages occurred, i.e., when
one of Salt River’s generators stopped producing power, “bor-
rowed hands” were requested. [ER 20.] Over the course of
ROHR v. SALT RIVER PROJECT 1819
twenty-three years Rohr worked as a “borrowed hand” at a
power station about a dozen times. The parties dispute
whether this support role was an “essential function” of
Rohr’s position. [ER 18, 21.] During an outage, the work of
a specialist, such as Rohr, could require ten to twelve hours
per day in the field, seven days a week. Rohr claims, without
contradiction, that he had not been assigned to such out-of-
town field work since at least 2001 and that major outages
had become increasingly infrequent over the last several years.1
[ER 18.]
B. Rohr’s Diabetes Diagnosis
Rohr was diagnosed as an insulin-dependent type 2 diabetic
in 2000. From that time, the medical necessities of insulin
injections, medicine, blood tests and a strict diet have been
fixtures of his daily life.2 [ER 3, 47, 89.] As a result of his
diabetes, Rohr suffers from chronic high blood pressure, dete-
riorating vision and occasional loss of feeling in his hands and
1
However, the record indicates that on or shortly before June 11, 2003,
Rohr’s supervisor told him that he needed to come to the office “always
prepared to go out in the field at a moment’s notice.” [ER 64.]
2
Type 2 diabetes “[r]esults from insulin resistance (a condition in which
the body fails to properly use insulin), combined with relative insulin defi-
ciency.” American Diabetes Association, All About Diabetes,
www.diabetes.org/about-diabetes.jsp. Type 1 diabetes, sometimes referred
to as juvenile diabetes, results from the body’s failure to produce insulin
at all. “Insulin is a hormone that is needed to convert sugar, starches and
other food into energy needed for daily life.” In the United States, approxi-
mately 23.6 million children and adults, or 7.8% of the population, have
type 1 or 2 diabetes. While type 2 diabetes, unlike type 1, is frequently
perceived as controllable without insulin injections, some type 2 diabetics,
like Rohr, do require insulin. Whether type 1 or 2, “[d]iabetes is associated
with an increased risk for a number of serious, sometimes life-threatening
complications,” including heart disease, stroke, high blood pressure, blind-
ness, kidney disease, nervous system disease, amputations, dental disease,
complications of pregnancy and sexual dysfunction. American Diabetes
Association, Complications of Diabetes in the United States,
http://www.diabetes.org/diabetes-statistics/complications.jsp.
1820 ROHR v. SALT RIVER PROJECT
feet. [ER 47, 89.] He tires more quickly than he did before the
onset of the disease, especially when he drives for long peri-
ods of time or is exposed to heat for some length of time. [ER
65.]
Within a few years of the onset of his diabetes, Rohr’s
medical condition affected his position at Salt River in two
respects. First, pursuant to Occupational Health and Safety
Administration (“OSHA”) guidelines, Salt River required all
employees who might be required to use a respirator, which
included the Plant Technical Support Group, to obtain and
renew a respirator certification annually; this necessitated a
yearly medical evaluation. Although Rohr had successfully
renewed his respirator medical certification for at least ten
years, in 2003 Salt River’s Health Services Department
refused to administer the breathilator portion of the test to
Rohr because of his high blood pressure, which was related
to his diabetes. [ER 29-30, 63, 89, 120.] When Rohr returned
on a different day, the Health Services Department again
refused to administer the test because his blood pressure was
too high. [ER 31.] As a result, Rohr could not complete the
medical evaluation and was unable to renew his respirator
certification. [ER 30.] Salt River offered no alternative test by
which Rohr could complete the respirator certification
requirement.
Second, in August 2003 Rohr learned that he would be
assigned to work on what promised to be a five- or six-week
project to repair an outage at Salt River’s Navajo Generating
Station in Page, Arizona. [ER 35.] This was the first time in
several years that he had been asked to help as a “borrowed
hand” in the field. [ER 24.] The assignment prompted him to
write his supervisors a letter requesting certain accommoda-
tions due to his disease. [ER 37, 65, 79, 89.]
His letter explained that while his diabetes had been first
diagnosed in 2000, he had likely had the disease for a much
longer time. It was not until recently, however, that diabetes
ROHR v. SALT RIVER PROJECT 1821
significantly affected his work and personal life. [ER 65.]
Now, his condition was deteriorating: despite daily insulin
injections, medication and stringent diet, his vision had
decreased, his hands and feet sometimes felt numb, and
exhaustion made him sick rather than simply tired. Sometimes
he felt sick for no apparent reason. [ER 65.] He had to follow
a “very demanding regimen” to manage his diabetes. In addi-
tion to daily injections of insulin, he had to test his blood
sugar three to four times a day, could not eat large meals or
skip meals and needed to snack on something every few
hours. [ER 65.] During travel he had to find a way to keep his
insulin refrigerated or chilled. Changes in the length of his
work day greatly affected his treatment routine. [ER 65.]
Because his condition was deteriorating, his doctor had dou-
bled the strength of his medication and increased the units of
insulin that he took each day. [ER 89.] He told his supervisor
that his treatment had become his first priority and he had to
schedule “everything else” in his life around it. [ER 89.]
As accommodations for the efforts required to control his
diabetes, Rohr requested that he not be required to drive for
more than three or four hours at a time, engage in strenuous
activities, work more than an eight- or nine-hour shift, work
in extreme heat, climb scaffolding or ladders, work around
moving machinery, or go on overnight out-of-town travel.
[ER 90.] These accommodations were necessary, he asserted,
because he otherwise would become exhausted, overheated,
weak or dizzy due to his diabetes, and travel could exacerbate
his condition because it made it difficult to follow his diet and
treatment regimen. [ER 89.]
C. Rohr’s Permanent Work Restrictions
A nurse at Salt River’s Employee Health Services Depart-
ment received Rohr’s letter and instructed Rohr’s supervisors
to refrain from sending him on out-of-town travel, including
the outage at the Navajo Generating Station, until he could
obtain his doctor’s opinion. [ER 39, 66.] Rohr met with his
1822 ROHR v. SALT RIVER PROJECT
doctor, Dr. Stephen Dippe. In a note dated August 27, 2003,
Dr. Dippe recommended that Rohr “not be given overnight
out-of-town assignments and that he avoid becoming over
exhausted such as working more than 9 hours a day or being
exposed to extreme heat.” [ER 67.]
About a week later, a doctor employed by Salt River, Dr.
Timothy Woehl, examined Rohr and prepared a list of perma-
nent work restrictions:
1) No rotating shift work.
2) A workday limited to 9 hours per day.
3) Limitation on thermal stress avoiding prolonged
work in high temperature poorly ventilated work
areas with preference to prolonged work in climate-
controlled environments only [sic].
4) No heavy exertional activities . . . .
5) No working from unprotected heights and no
unprotected climbing.
6) He should be required to carry with him an
immediate source of sugar such as a sugar tablet dur-
ing working hours.
[ER 97.] Dr. Woehl disagreed with the restriction on over-
night out-of-town travel recommended by Dr. Dippe because
he believed it was not travel itself that posed problems but
rather the nature of the work that Rohr was asked to do during
overnight travel assignments. [SER 4.] Nevertheless, Salt
River implemented all the requested accommodations, includ-
ing the travel restriction.
About five months later, on February 19, 2004, Dr. Woehl
reexamined Rohr and reported to Rohr’s supervisor that the
ROHR v. SALT RIVER PROJECT 1823
recommended permanent restrictions remained unchanged.
He stated that “[i]t remains my opinion that Mr. Rohr is phys-
ically able to perform the essential functions of his job with
the accommodations as outlined.” [ER 103.] On March 3,
2004, Rohr’s supervisors asked Dr. Woehl to clarify whether
the travel restriction was still in effect, and Dr. Woehl
responded that Rohr should continue to refrain from overnight
travel, even though Dr. Woehl had previously thought that
this restriction was unnecessary. [SER 5.]
On March 16, 2004, Rohr’s supervisors and the Salt River
Labor Relations Department told Rohr that his work restric-
tions were preventing him from performing the essential func-
tions of his job, such as overnight travel to assist as a
borrowed hand during outages and travel to conduct inspec-
tions and trainings. They presented Rohr with three options:
(1) remain in his position for up to ninety days while he pur-
sued another position within Salt River that would be consis-
tent with his work restrictions; (2) apply for disability
benefits; or (3) take early retirement. Rohr was given until
June 14, 2004 to make his choice. [SER 2; ER 69, 76.]
D. Rohr Requests Removal of Travel Restriction
Rohr then wrote to his doctor, Dr. Dippe, stating that he did
not believe his medical condition prevented him from doing
any travel and that Salt River had misinterpreted the doctor’s
recommendation to mean that he should refrain from all
travel. [SER 25.] On April 23, 2004, Dr. Dippe stated that in
his opinion, “it is no longer necessary to restrict patient Larry
Rohr regarding any travel that may be associated with his job
assignments (including overnight stays for multiple days),
providing he adheres to the other restrictions currently
imposed on him.” [ER 68.]
Nearly a week later, Dr. Woehl informed Rohr’s supervi-
sors that, despite Dr. Dippe’s note, he was not in favor of lift-
ing the travel restriction unless Dr. Dippe could produce
1824 ROHR v. SALT RIVER PROJECT
medical documentation and an explanation as to why Rohr
could now travel, since Rohr had pled his case against out-of-
town overnight travel at great length. Dr. Woehl indicated he
was concerned that Rohr was trying to manipulate Dr. Dippe
and Salt River to remove his travel restriction “for other than
medically necessary reasons.” [SER 5.]
Several weeks later, in a letter dated May 20, 2004, Dr.
Woehl asked Dr. Dippe to explain how Rohr’s medical condi-
tion had materially changed, so that he now could travel
safely out of town and overnight. [SER 5.] In a letter dated
June 8, 2004, Dr. Dippe explained that even though Rohr had
to take Actos, Metformin, glipizide and insulin to manage his
diabetes and required ongoing care from a cardiologist, Rohr
had been “fairly stable for quite some time” and did not
appear to be at risk for hypoglycemia. [SER 13.] Dr. Dippe
indicated that overnight travel would pose no problem so long
as Rohr could monitor his sugar level, take his insulin and
medication, maintain his diet and avoid hazardous work.
[SER 13.]
Rohr claims that he would have been able to travel to
power plants to perform inspections or conduct trainings, as
these activities did not conflict with his restrictions, and that
Salt River should have permitted him to do so. His restric-
tions, however, did not permit him to travel to work as a “bor-
rowed hand” during plant outages, as this type of assignment
involved climbing, hot and hazardous environments and long
hours. [ER 107.] He asserts that Salt River could have
assigned someone else to do such “borrowed hand” work
instead of him, as the work involved being a “helper” to carry
equipment, record data, and the like, and anyone could have
done it. [ER 107.]
On June 14, 2004, Rohr informed Salt River that he chose
the option of applying for disability benefits. He began a
leave of absence the next day, and the day thereafter filed a
charge of discrimination with the Equal Employment Oppor-
ROHR v. SALT RIVER PROJECT 1825
tunity Commission (“EEOC”), alleging that Salt River dis-
criminated against him on the basis of both age and disability.
[ER 13, 69.] Salt River informed him that his job protection
rights, i.e., the period during which his job could not be filled
on a regular basis, expired on December 15, 2004. [ER 113.]
In December 2004 Rohr filed suit in federal court.3 [ER 1-
11, 105, 119.] On July 14, 2006, in an unpublished order, the
district court granted summary judgment in favor of Salt
River. Rohr timely appeals.
II. ANALYSIS
We review de novo the district court’s grant of summary
judgment. Viewing the evidence in the light most favorable to
the nonmoving party, we must determine whether there is a
genuine issue of material fact and whether the district court
correctly applied the relevant substantive law. See Gribben v.
United Parcel Service, Inc., 528 F.3d 1166, 1169 (9th Cir.
2008) (citing Summers v. A. Teichert & Son, Inc., 127 F.3d
1150, 1152 (9th Cir. 1997)).
The ADA prohibits employers from “discriminat[ing]
against a qualified individual with a disability,” 42 U.S.C.
§ 12112(a), and requires employers to provide “reasonable
accommodations to the known physical or mental limitations
of an otherwise qualified [employee] with a disability,” id.
§ 12112(b)(5)(A). The district court held that Rohr was not
entitled to ADA protections because he failed to raise a mate-
rial issue of fact concerning whether he had a “disability”
within the meaning of the ADA, and because his inability to
complete the respirator certification test rendered him unqual-
ified for his position. We disagree with both holdings.
3
In addition to his ADA claim, Rohr also brought a claim for employ-
ment discrimination in violation of the Age Discrimination in Employ-
ment Act, 29 U.S.C. §§ 621, et seq., but voluntarily withdrew that claim
prior to the district court’s disposition.
1826 ROHR v. SALT RIVER PROJECT
A. “Disability”
[1] The ADA defines “disability,” in pertinent part, as “a
physical or mental impairment that substantially limits one or
more of the major life activities of such individual.” 42 U.S.C.
§ 12102(2). Diabetes is a “physical impairment” because it
affects the digestive, hemic and endocrine systems, and eating
is a “major life activity.”4 Fraser v. Goodale, 342 F.3d 1032,
1038-40 (9th Cir. 2003). Whether Rohr’s diabetes substan-
tially limits his eating is an “individualized inquiry.” See
Fraser, 342 F.3d at 1039. Once an impairment is found, the
issue is whether Rohr’s diabetes substantially limits his activ-
ity of eating. We find that the district court erred in conclud-
ing that it did not.
1. Rohr’s Insulin-Dependent Diabetes May Qualify As
a Disability
[2] To determine whether an insulin-dependent type 2 dia-
betic like Rohr is substantially limited in his eating, we must
compare “the condition, manner or duration under which he
can [eat] as compared to the condition, manner or duration
under which the average person in the general population can
[eat].” Fraser, 342 F.3d at 1040 (internal quotation marks
omitted). The fact that a plaintiff “simply differs from the
average person in how she performs a major life activity is
patently insufficient for a substantial limitation.” Id. (empha-
sis in original). Rather, in deciding whether the impairment is
substantially limiting, courts “must consider the nature and
severity of the [plaintiff’s] impairment, the duration or
expected duration of the impairment, as well as the permanent
4
Under the applicable federal regulations, major life activities also
include functions “such as caring for oneself, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and working.” 29
C.F.R. § 1630.2(i); 29 C.F.R. § 1630.2(i). A “major life activity” must be
of “comparative importance” and “central to the life process itself,” and
need not have a public, economic or daily character. See Fraser, 342 F.3d
at 1039 (quoting Bragdon v. Abbott, 524 U.S. 624, 638 (1998)).
ROHR v. SALT RIVER PROJECT 1827
or long term impact of the impairment.” Id. at 1038 (internal
citations omitted).5 Rohr must show that his diabetes signifi-
cantly restricts his eating. Id.
At the summary judgment stage, “precedent does not
require comparative or medical evidence to establish a genu-
ine issue of material fact regarding the impairment of a major
life activity . . . . Rather, . . . a plaintiff’s testimony may suf-
fice to establish a genuine issue of material fact.” Head v.
Glacier Northwest Inc., 413 F.3d 1053, 1058 (9th Cir. 2005).
However, “[t]o survive summary judgment, an affidavit sup-
porting the existence of a disability must not be merely self-
serving and must contain sufficient detail to convey the exis-
tence of an impairment.” Id. at 1059.
[3] Finally, we must consider not only whether the symp-
toms of Rohr’s diabetes substantially limit one of his major
life activities, but also whether his efforts to mitigate the dis-
ease constitute a substantial limitation. The Supreme Court
directed in Sutton that “if a person is taking measures to cor-
rect for, or mitigate, a physical or mental impairment, the
effects of those measures—both positive and negative—must
be taken into account when judging whether that person is
‘substantially limited’ in a major life activity and thus ‘dis-
abled’ under the Act.” 527 U.S. at 482. We therefore consider
the effectiveness, side effects and burdens of a plaintiff’s miti-
gating measures. Id. at 482-84.
[4] We conclude that Rohr has raised a genuine issue of
material fact as to whether his diabetes substantially limits his
5
The Supreme Court has made clear that the substantial limitation
inquiry is not limited to the effects of the impairment in the workplace.
See Toyota, 534 U.S. at 200-01. Rather, the proper inquiry is whether the
physical impairment substantially limits the claimed major life activity in
daily life. Put another way, “[w]hether [a plaintiff] faced substantial limi-
tations in his ability to work is irrelevant to whether his limitations in
other major life activities qualify him as disabled for ADA purposes.”
McAlindin v. County of San Diego, 192 F.3d 1226, 1233 (9th Cir.1999).
1828 ROHR v. SALT RIVER PROJECT
life activity of eating. The record is replete with statements,
both by Rohr and his doctors, that to manage his disease Rohr
is required to strictly monitor what, and when, he eats. Rohr
stated that these restrictions constrain him every day,
“whether it’s a workday, a weekend or a holiday.” [ER 65.]
He cannot eat large meals or skip meals, and must eat a snack
every few hours. [ER 65.] He must schedule each day’s blood
tests, medications and food intake. [ER 89.] He “sometimes
become[s] weak and dizzy without warning,” and only when
he eats something do these sensations quickly subside. [ER
90.] If he fails to follow his diet regimen for more than a meal
or two, his blood sugar rises to a level that aggravates his dis-
ease. [ER 89.] While Rohr and his wife “used to schedule fre-
quent trips during vacation time to go to Rocky Point or to
visit family in Utah,” they no longer do so because it is
increasingly difficult for him to follow his diet during travel.
[ER 90.] Rohr stated that overall, “[c]ontrolling diabetes is
like being on a chemical roller coaster.”6 [ER 106.]
[5] The district court oversimplified Rohr’s condition when
it opined that “if he stays on his medicines and watches what
and when he eats the only limitation on his activities are the
work-related restrictions recommended by his physicians.”
[ER 124.] While it may seem easy to take a pill or shot of
6
Rohr’s dietary regimen is consistent with that recommended by the
American Diabetes Association for type 2 diabetics. Type 2 diabetics must
carefully plan their meals because it is important for them to eat at the
same time every day and ensure that they have the same proportion of fats,
proteins and carbohydrates. See American Diabetes Association website,
at www.diabetes.org. The complications of type 2 diabetes require imme-
diate care and, if left untreated, can cause seizures and coma; they include
high blood sugar (hyperglycemia), low blood sugar (hypoglycemia),
increased ketones (which cause loss of appetite, nausea, vomiting, fever
and stomach pain), heart and blood vessel disease, nerve damage, kidney
damage, eye damage, foot damage, skin and mouth conditions, osteoporo-
sis and Alzheimer’s disease. See id. Any perception that only type 1 diabe-
tes is “serious,” while type 2 is not, is misplaced. Dr. Dippe testified in
his deposition that both type 1 and type 2 diabetes can be “very serious.”
[SER 16.]
ROHR v. SALT RIVER PROJECT 1829
insulin, the reality of diabetes, a chronic and incurable dis-
ease, is not so simple. For people like Rohr, who must treat
their diabetes with insulin, the failure to take insulin will
result in severe problems and eventually death. See American
Diabetes Association Position Statement: Insulin Administra-
tion, Diabetes Care 27:S106-107 (2004). Insulin injections
themselves can be dangerous. Rohr stated in his deposition
that it is difficult to determine how much insulin to take, as
the necessary amount varies depending on the food and activ-
ity level. [ER 47-49, 65.] Generally, food raises blood glu-
cose levels while exercise and insulin reduce them. But other
factors play a role, too (e.g., mental stress, illness and injury).
To obtain the appropriate balance, Rohr must test his blood
glucose levels through a finger stick test numerous times a
day, and adjust insulin, food and activity level according to
the results. [ER 47-49, 65.]
[6] If daily insulin injections alone more or less stabilized
Rohr’s blood sugar levels, such that any limitation imposed
on his diet would be minor, then Rohr’s major life activity of
eating might not be substantially limited. See, e.g., Ingles v.
Neiman Marcus Group, 974 F. Supp. 996, 1001-02 (S.D. Tex.
1997) (holding that diabetic plaintiff who was merely required
to maintain a “normal, good, healthy diet” was not substan-
tially limited; plaintiff’s condition was substantially con-
trolled with oral medication, and he did not have to take
insulin). However, Rohr has alleged substantial limitations on
his eating in spite of his medicine and insulin. He must snack
regularly, plan his daily schedule around his diet, avoid skip-
ping meals and eat immediately when he feels dizzy or light-
headed. The general population does not have to “snack on
something every few hours” to regulate sugar intake; more-
over, the general population is not medically required to plan
daily schedules around a dietary regimen. [ER 65.] Straying
from a diet for more than one or two meals is not a cause for
medical concern for most people, and skipping a meal, or eat-
ing a large one, does not expose them to the risk of fainting.7
7
Salt River attempts to distinguish Rohr from the plaintiffs with type 1
diabetes in Fraser and Lawson v. CSX Transp., Inc., 245 F.3d 916, 923-
1830 ROHR v. SALT RIVER PROJECT
It is simply no answer to say that “if he strictly controls his
diet” he is not substantially limited; for Rohr, the effort
required to control his diet is itself substantially limiting.
[7] In short, Rohr has raised a genuine issue of material fact
as to whether he is “significantly restricted as to the condition,
manner or duration” in which he can eat, compared to the
general population. See Fraser, 342 F.3d at 1038-40. Indeed,
this court and others have found a sufficient showing of a sub-
stantial limitation on considerably less evidence than Rohr has
presented. See, e.g., Head, 413 F.3d at 1058; Gonsalves v.
J.F. Fredericks Tool Co., Inc., 964 F. Supp. 616, 621 (D.
Conn. 1997) (plaintiff’s statement that he had difficulty sleep-
ing and eating was “sufficient to permit a finding that his dia-
betes substantially limited a major life activity.”). Therefore,
a genuine issue of fact exists as to whether Rohr has a disabil-
ity, and summary judgment should not have been granted.
2. The Americans with Disabilities Act Amendments
Act of 2008
On September 25, 2008, two months after the parties’ oral
argument before this court, President George W. Bush signed
into law the ADAAA, which significantly expands the scope
of the term “disability” under the ADA. The ADAAA became
effective on January 1, 2009, and Congress did not indicate
that it may be applied retrospectively. Because we have
reached our conclusions separate and apart from the ADAAA,
we need not determine whether the amendment has retroac-
24 (7th Cir. 2001). Salt River claims that type 1 diabetes is harder to con-
trol than Rohr’s type 2 diabetes. [Appellee Br. 32-35.] This argument is
beside the point, since the substantial limitation inquiry focuses on the
plaintiff’s condition as compared to the general population, not other dia-
betics. See Fraser, 342 F.3d at 1040. Moreover, unlike some type 2 dia-
betics, Rohr must take insulin daily, and a failure to follow his strict diet
regimen would endanger his health, like the type 1 diabetics in Fraser and
Lawson.
ROHR v. SALT RIVER PROJECT 1831
tive effect. Nevertheless, because the ADAAA sheds light on
Congress’ original intent when it enacted the ADA, a brief
discussion of the amendment is appropriate.
a. ADAAA Calls for Broad Construction of
“Disability”
The ADAAA explicitly rejects several Supreme Court deci-
sions that defined “disability” more narrowly than many of
the ADA’s original Congressional proponents had intended.
See H.R. Rep. No. 110-730, at 5 (2008) (H. Comm. on Educ.
& Labor). Beginning in January 2009, “disability” was to be
broadly construed and coverage will apply to the “maximum
extent” permitted by the ADA and the ADAAA. 122 Stat. at
3553.
The ADAAA explains that “[w]hile [in enacting the ADA]
Congress expected that the definition of disability under the
ADA would be interpreted consistently with how courts had
applied the definition of a handicapped individual under the
Rehabilitation Act of 1973, that expectation has not been ful-
filled.” Further, “the holdings of the Supreme Court in Sutton
v. United Air Lines, Inc., 527 U.S. 471 (1999) and its compan-
ion cases have narrowed the broad scope of protection
intended to be afforded by the ADA, thus eliminating protec-
tion for many individuals whom Congress intended to pro-
tect.” 122 Stat. at 3553.
b. ADAAA Alters Supreme Court’s Standards for
“Disability”
The ADAAA clarifies Congress’s intent with respect to the
term “disability” in three major ways that could affect
whether ADA protections are extended to persons with diabe-
tes. First, the law makes clear that eating is a major life activ-
ity under the Act.8 122 Stat. at 3555. Second, the ADAAA
8
We recognized in 2003 that eating qualifies as such a major life activ-
ity. Fraser, 342 F.3d at 1040.
1832 ROHR v. SALT RIVER PROJECT
states that the standard articulated in Toyota—that “substan-
tially limits” means “prevents or severely restricts”—“has
created an inappropriately high level of limitation necessary
to obtain coverage under the ADA.” 122 Stat. at 3554. In this
respect, Congress has decided that the current EEOC regula-
tions, which define the term “substantially limits” as “signifi-
cantly restricted,” require a greater degree of limitation than
the 1990 Congress had intended, and has instructed the EEOC
to revise its definition. Id.
[8] Third, and perhaps most significantly, the ADAAA
rejects the requirement enunciated in Sutton that whether an
impairment substantially limits a major life activity is to be
determined with reference to mitigating measures. Id. The
ADAAA makes explicit that the “substantially limits” inquiry
“shall be made without regard to the ameliorative effects of
mitigating measures such as . . . medication, medical supplies,
equipment, or appliances . . . ; use of assistive technology;
reasonable accommodations or auxiliary aids or services; or
learned behavioral or adaptive neurological modifications.”9
Id. at 3556. Impairments are to be evaluated in their unmiti-
gated state, so that, for example, diabetes will be assessed in
terms of its limitations on major life activities when the dia-
betic does not take insulin injections or medicine and does not
require behavioral adaptations such as a strict diet.10 See H.R.
Rep. No. 110-730, at 8.
9
The only excepted mitigating measures are ordinary eyeglasses or con-
tact lenses, which must be considered in determining whether an impair-
ment substantially limits a major life activity.
10
The American Diabetes Association has heralded the ADAAA as
“mak[ing] it clear that Congress intends for people with conditions such
as diabetes to be covered by the law and protected from discrimination on
the basis of their diabetes.” American Diabetes Association, Americans
with Disabilities Act Amendments Act and Diabetes, www.diabetes.org/
advocacy-and-legalresources/discrimination/employment/americans-with-
disabilities-act-amendments-act-and-diabetes.jsp#5.
ROHR v. SALT RIVER PROJECT 1833
[9] While we decide this case under the ADA, and not the
ADAAA, the original congressional intent as expressed in the
amendment bolsters our conclusions.
B. “Qualified Individual”
To state a claim of discrimination under the ADA, a plain-
tiff must establish that he or she is a “qualified individual.”
See 42 U.S.C. § 12112(a). The ADA defines a “qualified indi-
vidual,” in pertinent part, as “an individual with a disability
who, with or without reasonable accommodation, can perform
the essential functions of the employment position . . . .” 42
U.S.C. § 12111(8). The individual must also “satisf[y] the
requisite skill, experience, education and other job-related
requirements of the position.” Bates v. United Parcel Service,
Inc., 511 F.3d 974, 990 (9th Cir. 2007) (en banc). The district
court concluded that Rohr was not qualified for his position
as a welding metallurgy specialist because beginning in 2003
he did not obtain the required annual respirator certification.
We disagree.
1. Respirator Certification Test
Rohr argues that the respirator certification test was itself
discriminatory. The ADA defines “discriminate,” inter alia,
as
using qualification standards, employment tests or
other selection criteria that screen out or tend to
screen out an individual with a disability . . . unless
the standard, test or other selection criteria, as used
by the covered entity, is shown to be job-related for
the position in question and is consistent with busi-
ness necessity.
42 U.S.C. § 12112(b)(6) (emphasis added).
It is undisputed that the respirator certification test “scr-
een[ed] out” Rohr due to his high blood pressure, which was
1834 ROHR v. SALT RIVER PROJECT
a complication of his diabetes. The district court held, how-
ever, that the test was not discriminatory because it was “job-
related” and “consistent with business necessity.”
Once an employee shows that a qualification standard tends
to screen out an individual with a disability, the employer
shoulders the burden of proving that the challenged standard
is job-related and consistent with business necessity. See
Bates, 511 F.3d at 993.
Salt River asserts that its respirator certification test,
including the breathilator test, was a business necessity
because it is mandated by OSHA. However, OSHA’s require-
ments are not so specific. OSHA obliges an employer to pro-
vide respirators “when such equipment is necessary to protect
the health of the employee.” 29 C.F.R. § 1910.134(a)(2). Fur-
ther, the employer must establish and maintain a written “res-
piratory protection program” that includes, inter alia,
“[m]edical evaluations of employees required to use respira-
tors.” 29 C.F.R. § 1910.134(c)(1)(ii). OSHA’s regulations do
not specify the content of such medical evaluations, how often
the evaluations should be conducted, the appropriate tests for
determining whether an employee should be certified, or any
blood-pressure requirements.
[10] This is not a case where an employer merely imple-
mented the medical certification program required by a fed-
eral agency. Cf. Shields v. Robinson-Van Vuren Assocs., No.
98 Civ. 8785, 2000 WL 565191, at *1 (S.D.N.Y. May 8,
2000). Rather, OSHA’s regulations were sufficiently broad to
allow Salt River the discretion to determine how, and how
often, it would evaluate its employees’ ability to use a respira-
tor. As such, there is a genuine issue of fact whether Salt
River could have provided reasonable accommodations to
enable Rohr to complete the test. Indeed, the ADA provides
that “[t]he prohibition against discrimination . . . shall include
medical examinations and inquiries.” 42 U.S.C. § 12112(d).
ROHR v. SALT RIVER PROJECT 1835
[11] Salt River has failed to show the necessity of the par-
ticular breathilator test that it used in the evaluation, or the
absence of any alternative respiratory evaluation appropriate
for individuals with high blood pressure.11 See Bates, 511 F.3d
at 996. Salt River also failed to show that any such alternative
method would impose an undue hardship. See id. Therefore,
there is a genuine issue of material fact regarding all elements
of the business necessity defense.
[12] Salt River also failed to show that the certification test
was related to Rohr’s job. “To show ‘job-relatedness,’ an
employer must demonstrate that the qualification standard
fairly and accurately measures the individual’s actual ability
to perform the essential functions of the job.” Id. at 996. Salt
River has failed to show that Rohr carried a respirator, includ-
ing when he was working in the field during an outage, or that
respirators were readily accessible in the areas in which Rohr
was assigned to work. Rohr disputes the relevance of the cer-
tification and argues that in twenty-three years as a welding
specialist, he never had to use a respirator. As the respirator
test would be job-related only if there was a possibility that
Rohr would have to use a respirator, Salt River has not met
its burden with respect to job-relatedness.
[13] Therefore, because Salt River has failed to show that
the respirator certification test was job-related and a business
necessity, and because the test tended to screen out an indi-
vidual with diabetes-related high blood pressure, Salt River
has not established that it is entitled to summary judgment.
See Bates, 511 F.3d at 990 (“[I]t would make little sense to
require an ADA plaintiff to show that he meets a qualification
11
Rohr aptly notes that he might have been able to take the breathilator
test at a different time of day or after medical treatment, when his blood
pressure might have been lower, or he might have been able to take the
breathilator test with medical supervision and informed consent even if his
blood pressure exceeded Salt River’s threshold. Salt River did not afford
him any of these opportunities.
1836 ROHR v. SALT RIVER PROJECT
standard that he undisputedly cannot meet because of his dis-
ability and that forms the very basis of his discrimination
challenge.”).
2. “Essential Functions” of Rohr’s Position
Apart from the respirator certification test, it is undisputed
that Rohr met all of Salt River’s qualification standards for a
welding metallurgy specialist, a position Rohr held for more
than twenty years. Whether Rohr was “qualified” for the posi-
tion, therefore, turns on whether he could perform the essen-
tial functions of his position with or without reasonable
accommodation. See 42 U.S.C. § 12111(8). Where there is
“conflict in the evidence regarding the essential functions of
[a position], we conclude that there is a factual dispute . . . ,
notwithstanding the job descriptions that [an employer] has
prepared.” Cripe v. City of San Jose, 261 F.3d 877, 888-89
(9th Cir. 2001); see also Turner v. Hershey Chocolate U.S.,
440 F.3d 604, 613 (3d Cir. 2006) (holding that whether an
employee could perform the essential functions of a job with
accommodations was a factual question for the jury).
[14] Rohr has raised a genuine issue of whether he could
perform the “essential functions” of his position with accom-
modation. Essential functions are “fundamental job duties of
the employment position . . . not including the marginal func-
tions of the position.” See Bates, 511 F.3d at 988 (quoting 29
C.F.R. § 1630.2(n)(1)). The ADA requires that in assessing a
position’s essential functions, “consideration shall be given to
the employer’s judgment as to what functions of a job are
essential,” including any written job descriptions prepared
“before advertising or interviewing applicants for the job.” 42
U.S.C. § 12111(8). Such evidence, however, is not conclu-
sive: “an employer may not turn every condition of employ-
ment which it elects to adopt into a job function, let alone an
essential job function, merely by including it in a job descrip-
tion.” Cripe, 261 F.3d at 887 (quotation marks omitted).
ROHR v. SALT RIVER PROJECT 1837
[15] Diabetes did not prevent Rohr from performing the
bulk of his job, which, as described supra, was mostly office
work. The disease did, however, prevent him from participat-
ing in out-of-town and overnight field assignments to repair
outages. The parties dispute whether such field assignments
were an “essential function” of his job, and Salt River’s own
medical staff stated that he was “physically able to perform
the essential functions of his job with the accommodations as
outlined.”
[16] Therefore, drawing all inferences in favor of Rohr, as
we must at this stage of the litigation, there is a genuine issue
of fact as to whether Rohr was qualified for his position.
III. CONCLUSION
The district court erred in granting summary judgment to
Salt River. Rohr presented a genuine issue of material fact
that his diabetes substantially limited his major life activity of
eating and thus raised a genuine issue as to whether he was
“disabled” within the meaning of the ADA. Rohr also raised
a genuine issue as to whether he was “qualified” for his posi-
tion within the meaning of the ADA, since with the exception
of the respirator certification requirement, which may itself be
found to be discriminatory, he provided sufficient evidence
that he satisfied all of Salt River’s job-related requirements
and could perform the essential functions of his position.
The decision is vacated and remanded to the district court
for further proceedings consistent with this opinion.
VACATED AND REMANDED.