HEAD v. GLACIER NORTHWEST INC., 413 F.3d 1053 (9th Cir. 2005)
Matthew HEAD, Plaintiff-Appellant, v. GLACIER NORTHWEST, INCORPORATED, a Washington corporation, Defendant-Appellee.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted December 8, 2004.
Filed July 6, 2005.
Scott N. Hunt, Busse & Hunt, Portland, OR, for the
William T. Grimm, Davis Grimm Payne & Marra, Seattle, WA, for
Appeal from the United States District Court for the District
of Oregon; Malcolm F. Marsh, District Judge, Presiding. D.C. No.
Before: T.G. NELSON and RAWLINSON, Circuit Judges; and
SCHWARZER,[fn*] Senior District Judge.
[fn*] The Honorable William W. Schwarzer, Senior United States
District Judge for the Northern District of California, sitting
SCHWARZER, Senior District Judge.
Matthew Head appeals the district court's grant of partial
summary judgment in his action against his former employer,
Glacier Northwest ("Glacier"), on his claims for disability
discrimination under the Americans with Disabilities Act ("ADA")
and Oregon state law on the basis of disability and record of
disability. Head also appeals the district court's exclusion of
lay opinion testimony during the trial on his perceived
disability and retaliation claims. Finally, Head challenges the
district court's jury instructions requiring him to demonstrate
that Glacier discriminated against him "because of" his perceived
disability and retaliated against him "because" of his request
for an accommodation. We have jurisdiction pursuant to
28 U.S.C. Ã‚Â§ 1291. We reverse the grant of summary judgment, affirm the
exclusion of lay opinion testimony, vacate the jury
verdict, and remand for further proceedings consistent with this
I. FACTS AND PROCEDURAL HISTORY
On June 29, 2001, Glacier, Matthew Head's employer, terminated
him after he got a loader he was operating stuck in the mud. The
loader had to be extracted by another piece of equipment. In
terminating Head, Glacier cited damage to the loader in violation
of an equipment abuse policy issued in 2000. It was undisputed
that Head had received this policy.
In early 2001, prior to his termination, Head was diagnosed
with depression or bipolar disorder. Head informed Glacier of
this diagnosis. At the time of his diagnosis, Head worked
graveyard shift as a barge offloader. Head subsequently missed
almost two months of work because of his disability. Head
requested, and was granted, a Family Medical Leave of Absence for
this time period. Although Head returned to work in May 2001, his
doctors restricted him from working more than 12 hours per day or
48 hours per week. The doctors also limited Head to working only
the day shift.
After his termination, Head filed numerous claims in federal
district court. Of relevance to this appeal were Head's claims
under the ADA and Oregon law for disability discrimination based
on Head's disability, record of disability, or perceived
disability, and for retaliation for requesting an accommodation.
Glacier moved for summary judgment. In opposition to Glacier's
motion, Head did not submit medical or comparative evidence in
support of his claims, but did submit numerous affidavits and
other evidence. Ultimately, the district court granted partial
summary judgment in favor of Glacier on Head's discrimination
claims based on disability and a record of disability. The court
reasoned that Head had failed to demonstrate a genuine issue of
material fact regarding substantial impairment because he did not
present any medical or comparative evidence to support his claims
that his disability substantially impaired any major life
The remainder of Head's claims, for (1) discrimination under
the ADA and Oregon law for perceived disability, and (2)
retaliation under the ADA and Oregon law for requesting an
accommodation, went to trial. The rest of the issues on appeal
relate to facts that occurred during the trial.
During the trial, Head's counsel asked a lay witness the
following question about the incident with the loader that
preceded Head's termination: "Was there anything about the
position where Mr. Head was stuck or the location of the loader
in the material it was stuck in that caused you to believe that
he had violated the equipment abuse policy?" Glacier's counsel
objected. The district court sustained the objection based on its
earlier decision that lay opinion testimony regarding whether
Head's getting the loader stuck constituted equipment abuse would
not be allowed. The district court believed that such testimony
should not be allowed under Federal Rule of Evidence 701.
Accordingly, the witness did not answer counsel's question.
As the trial neared its conclusion, the court and parties
discussed the jury instructions. Of primary concern was whether
to give a single-motive "because of" instruction or a
mixed-motive "motivating factor" instruction for Head's state and
ADA-based discrimination and retaliation claims. Relying on
Costa v. Desert Palace, Inc.,[fn1] a Title VII case, the
district court concluded that single-motive "because of"
instructions were appropriate.[fn2] The jury
instruction for disability discrimination therefore required Head
to prove that Glacier terminated him "because of" his perceived
disability. The jury instruction for retaliation due to a request
for accommodation therefore required Head to prove that Glacier
discharged him solely "because" he requested a reasonable
accommodation. The jury returned a verdict in favor of Glacier.
Head now appeals the district court's partial grant of summary
judgment, the district court's exclusion of lay witness testimony
regarding whether he violated the equipment abuse policy, and the
jury instructions. Head argues that the district court erred by
requiring medical and comparative evidence to substantiate the
substantial impairment of major life activities at the summary
judgment stage. We agree and reverse and remand as to this issue.
Head argues that the district court improperly excluded the lay
witness testimony. We disagree and affirm as to this issue.
Finally, Head argues that the district court erred by giving
"because of" and "because" jury instructions rather than
"motivating factor" instructions. We agree, vacate the jury
verdict, and remand as to this issue.
II. SUMMARY JUDGMENT
We review the district court's grant of summary judgment de
novo.[fn3] We only review "`evidence available to the
[district] court at the time the motion was made.'"[fn4] The
facts must be viewed in the light most favorable to
We hold that Ninth Circuit precedent does not require
comparative or medical evidence to establish a genuine issue of
material fact regarding the impairment of a major life activity
at the summary judgment stage. Rather, our precedent supports the
principle that a plaintiff's testimony may suffice to establish a
genuine issue of material fact. McAlindin v. County of San
Diego[fn6] and Fraser v. Goodale are illustrative.
In McAlindin, we discussed medical evidence, but did not
explicitly or otherwise require it.[fn7] In fact, we held
that a statement in a declaration by McAlindin alone sufficed to
raise a genuine issue of material fact regarding the impairment
of a major life activity: his ability to engage in sexual
relations.[fn8] Additionally, McAlindin's declaration played
a central role in our holding that sufficient evidence supported
the existence of a genuine issue of
material fact as to his sleeping claim.[fn9] Finally,
although we discussed doctors' evaluations of McAlindin's
inability to interact with others, we held that "[h]is alleged
`fear reaction' and `communicative paralysis' are sufficiently
severe to raise a genuine issue of material fact about his
ability to interact with others."[fn10] Granted, this holding
regarding the inability to interact with others relied more on
medical testimony than did our conclusions regarding the other
two major life activities, but we did not require medical
Fraser also did not require medical or comparative evidence
at the summary judgment stage. In Fraser, a diabetic argued
that her diabetes substantially limited the major life activities
of eating, caring for herself, and thinking and
communicating.[fn11] After determining that under certain
circumstances eating is a major life activity, we held that
Fraser's presentation of evidence about her demanding and highly
difficult treatment regimen precluded a grant of summary
judgment.[fn12] The evidence on which we relied consisted
primarily of Fraser's testimony regarding her dietary regime. We
also considered some medical testimony that even if Fraser
perfectly followed her regime she could still have complications;
however, we placed no emphasis on this medical
testimony.[fn13] Thus, Fraser indicates that medical
testimony may be helpful, but it is not required.
Additionally, in rejecting Fraser's claim that she was
substantially limited in caring for herself and thinking and
communicating, we faulted the quantity of the evidence presented,
not the nature of it.[fn14] We concluded that although
Fraser's statements showed the effects on these life activities,
there was insufficient "evidence that she is so unsuccessful in
monitoring her blood sugar levels that she is substantially
limited in [these major life activities]."[fn15] Accordingly,
Fraser supports the principle that a plaintiff's testimony may
suffice to establish a genuine issue of material fact.
Consequently, it follows that comparative or medical evidence at
the summary judgment stage is not required. We hasten to add that
our holding in no way impugns our longstanding precedent that
conclusory declarations are insufficient to raise a question of
material fact.[fn16] To survive summary judgment, an
affidavit supporting the existence of a disability must not be
merely self-serving and must contain sufficient detail to convey
the existence of an impairment.[fn17]
Because we conclude that plaintiffs need not supply comparative
or medical evidence if they provide other adequate evidence, we
must now determine whether Head provided adequate evidence in
this case. Thus, to determine whether the grant of summary
judgment was appropriate, we review Head's alleged impairment of
each major life activity.[fn18] 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, we conclude that
reading is a major life activity, and that
Head has alleged sufficient evidence of a substantial impairment
regarding reading.[fn19] Accordingly, we reverse the grant of
summary judgment as to each claimed major life activity.
Sleeping is a major life activity.[fn20] Head's declaration
alleging great difficulty sleeping at night, with some
improvement when using sleep medication, suffices to raise a
genuine issue of material fact.[fn21] He explained that:
[even] after getting on medication my sleeping
improved but I still periodically had serious
problems. I would pass out for a while immediately
after getting home from work. But I would not get a
full night's sleep, and then after I woke up I had
great difficulty going to sleep when it was time to
go to bed for the night. This went on for months.
Even with the medication I usually was only able to
sleep five or six hours a night, compared to the
seven to nine hours a night I slept prior to my
diagnosis. I was drowsy during the day due to the
medications and lack of sleep. Some nights even with
the help of medications I could not get to sleep for
hours or even at all.
Under McAlindin, this is sufficient evidence to preclude
summary judgment.[fn22] Accordingly, Head has alleged
sufficient evidence to demonstrate a substantial impairment in
the major life activity of sleeping.
B. Interacting with Others
Interacting with others is a major life activity.[fn23] To
demonstrate a substantial impairment in the ability to interact
with others, Head "must show that his `relations with others were
characterized on a regular basis by severe problems, for example,
consistently high levels of hostility, social withdrawal, or
failure to communicate when necessary.'"[fn24] At the summary
judgment stage, an "alleged `fear reaction' and `communicative
paralysis' are sufficient to raise a genuine issue of material
fact about [Head's] ability to interact with others."[fn25]
In McAlindin, the testimony of doctors established that
McAlindin was always anxious. This led McAlindin "to constrict
outside activities and stay away from crowds, shopping centers
and any disagreement with his wife."[fn26] He was around the
house at least 20 hours a day and confined his social activities
to his family.[fn27] We emphasized that this occurred "all of
In this case, Head's affidavit alleges that he avoids crowds,
stores, large family gatherings, and even doctor's appointments.
Furthermore, Head would not leave the house most weekends before
he was fired, and after he was fired he would not leave the house
for weeks on end. Head even avoided telephone interaction unless
"there were serious consequences" for not responding to phone
calls. Head has not alleged that this behavior occurs all the
time, but rather that it occurs "many times" or "most" of the
time. Thus, Head has stated facts slightly less severe than those
found sufficient in McAlindin.[fn29] Nonetheless, he has
still alleged sufficient facts to show a "substantial limitation"
and to avoid summary judgment.[fn30] Accordingly, Head has
alleged sufficient evidence to demonstrate a substantial
impairment in the major life activity of interacting with others.
Thinking is a major life activity.[fn31] Fraser instructs
that the inability to think three times in five months does not
constitute a substantial limitation of the ability to
think.[fn32] However, Head has alleged a much more persistent
problem with his ability to think than that found insufficient in
Fraser.[fn33] Head's affidavit states the following
regarding the ability to think:
My bipolar disorder and/or depression greatly
affected my short-term memory and ability to
concentrate both before and after I was hospitalized.
I could not stay focused on something for more than
brief periods. I did not have much of a short-term
memory at all. I had to be repeatedly reminded of
appointments, or tasks I had to do. . . . If I looked
at written material for too long things just got
jumbled in my mind and I would have to stop. I could
not sit and focus on an entire television show. In
the fall of 2001 I quit school because of my
inability to focus or concentrate adequately.
Taken in the light most favorable to Head, these statements
indicate that his ability to think was almost constantly impaired
at some level. Accordingly, Head has alleged sufficient evidence
to demonstrate a substantial impairment in the major life
activity of thinking.
At least one court of appeals has held that reading is a major
life activity.[fn35] We have not previously addressed whether
reading is a major life activity. We now recognize that reading
is a major life activity.
"Federal regulations describe major life activities as
including functions `such as caring for oneself, walking, seeing,
hearing, speaking, breathing, learning, and working.'"[fn36]
We have recognized that the "illustrative list of major life
activities requires the activity only to be of `comparative
importance' and `central to the life process itself,' and it need
not have a public, economic, or daily character."[fn37] To be
a major life activity, the activity
need not be essential to survival, but rather "of central
importance to most people's daily lives."[fn38]
The ability to read is necessary in many instances to perform
major life activities such as caring for oneself, learning, and
working. As such, it is of central importance to most people's
daily lives. To be sure, a person will not die merely because he
or she cannot read, but that is not the standard. The fact that
reading is of comparative importance, and that it is central to
most people's daily lives, establishes that reading is a major
life activity.[fn39] Consequently, we hold that reading is a
major life activity. Accordingly, to survive summary judgment on
his reading claim, Head had to allege sufficient facts to
establish a substantial impairment of his ability to
In his affidavit, Head alleged that "[r]eading was especially
difficult. I basically did not read for more than three to five
minutes at a time. If I looked at written material for too long
things just got jumbled in my mind and I would have to stop."
Taking these allegations in the light most favorable to Head, it
appears that his ability to read was substantially impaired by an
inability to read more than a few minutes at a time. Accordingly,
Head has alleged sufficient evidence to demonstrate a substantial
impairment in the major life activity of reading.
We hold that Ninth Circuit precedent does not require
comparative or medical evidence to establish a genuine issue of
material fact regarding the impairment of a major life activity
at the summary judgment stage. Under the facts of this case, Head
has made the minimal showing necessary to survive summary
judgment on his claims for substantial impairment of the major
life activities of sleeping, interacting with others, thinking,
and reading. Accordingly, we reverse the district court and
remand for a determination on the merits of Head's claims based
on disability and record of disability.
III. TRIAL ERROR
A. Lay Opinion Testimony
We review evidentiary rulings for abuse of
discretion.[fn41] We cannot reverse the district court's
exclusion of lay witness testimony regarding equipment abuse
unless we have a definite and firm conviction that the district
court committed a clear error of judgment[fn42] and the error
A lay witness may give opinions that are: "(a) rationally based
on the perception of the witness, [and] (b) helpful to a clear
understanding of the witness'[s] testimony or the determination
of a fact in issue. . . ."[fn44] In this case, Head argues
that the district court abused its discretion by not allowing one
of his witnesses to answer the following question: "Was there
anything about the position where Mr. Head was stuck or the
location of the loader in the material it was stuck in that
caused you to believe that he had violated the equipment abuse
Assuming arguendo that the witness had personal knowledge about
whether getting the loader stuck was likely to have resulted from
equipment abuse, it is unclear how
the witness's opinion about that would have been helpful to the
jury in this case. The jury was fully capable of comparing the
incident involving the loader with the standards in the equipment
abuse policy and drawing its own conclusion. Accordingly, we
conclude that the district judge properly sustained the objection
to the question because an answer would not have been helpful to
"the determination of a fact in issue."[fn45]
B. Jury Instructions
Head alleges that the district court erred in giving a "because
of" or "because" instruction as to four of his claims: (1) the
state discrimination claim; (2) the ADA discrimination claim; (3)
the state retaliation claim; and (4) the ADA retaliation claim.
To decide these claims, we must determine the causal standard for
each claim and whether the jury instructions appropriately
reflected that standard. At its core, the causation standard is a
legal question; thus, we review it de novo.[fn46] We review
the district court's formulation of jury instructions for abuse
of discretion,[fn47] but error in jury instructions does not
require reversal if the error was "more probably than not
As to the state retaliation claim, the causal standard for
retaliation claims under Oregon Revised Statute Ã‚Â§ 659A.109 is
whether "the unlawful motive was a substantial and impermissible
factor in the discharge decision."[fn49] As to the remaining
jury instruction claims, we must determine what standard for
causation the ADA requires and how to explain that standard to a
jury.[fn50] We hold that the ADA causation standard is a
motivating factor standard.[fn51] Furthermore, we hold that
the use of the "because of" instruction was prejudicial in this
case. The analysis below first explains how we determined this
causation standard, then explains why the jury instruction in
this case should have used the "motivating factor" language, and
then why the instruction given was prejudicial.
1. ADA's standard of causation
Causation analysis under the ADA is really a question of
whether the ADA's use of the causal language "because
reason of,"[fn53] and "because"[fn54] means that
discriminatory and retaliatory conduct is proscribed only if it
was solely because of, solely by reason of, or solely
because an employee was disabled or requested an accommodation.
Although the Ninth Circuit has not answered this question, seven
of our sister circuits have held that the ADA causation standard
does not require a showing of sole cause.[fn55] The Eleventh
Circuit in McNely v. Ocala Star-Banner Corp., an ADA case,
thoroughly analyzed this question.
The McNely court analyzed the statutory language,[fn56]
legislative history,[fn57] and Supreme Court precedent
interpreting "because of" in Title VII cases.[fn58] It
explained that "the `because of' component of the ADA liability
standard imposes no more restrictive standard than the ordinary,
everyday meaning of the words would be understood to imply. In
everyday usage, `because of conveys the idea of a factor that
made a difference in the outcome."[fn59]
The McNely court noted that the ADA liability provisions do
not contain the word "solely" or any similar terms. It explained
that, given the absence of that term from the statute, "unless we
can discern a very good reason to read the restrictive term
`solely' into two statutory provisions where it is not found,
this is a simple case."[fn60] The court declined to import
the "solely" restriction from the Rehabilitation Act, explaining
that "[a] liability standard that tolerates decisions that would
not have been made in the absence of discrimination, but were
nonetheless influenced by at least one other factor, does little
to `eliminate' discrimination; instead, it indulges
it."[fn61] Thus, the court concluded that importing the term
"solely" would undermine the very purpose of the ADA: "`the
elimination of discrimination against individuals with
Thus, on the basis of the plain language of the ADA, and with
the support of seven other circuits, we conclude that "solely" is
not the appropriate causal standard under any of the ADA's
liability provisions. The next question is what that proper
standard is. We conclude that a motivating factor standard is the
appropriate standard for causation in the ADA context for the
reasons discussed below.
We agree with our sister circuits that a "motivating factor"
standard is most consistent with the plain language of the
statute and the purposes of the ADA.[fn63] Moreover, the
"motivating factor" standard comports with our existing
precedent.[fn64] For example, in Hernandez we characterized
the burden as proving that "disability actually played a role
in the employer's decisionmaking process and had a determinative
influence on the outcome."[fn65] Similarly, in Snead we
stated the causal requirement as demonstrating to the trier of
fact that "a discriminatory reason more likely motivated the
employer."[fn66] Therefore, we hold that the ADA outlaws
adverse employment decisions motivated, even in part, by animus
based on a plaintiff's disability or request for an accommodation
Ã¢â‚¬â€ a motivating factor standard. Our next inquiry is how jury
instructions must reflect this causation standard.
2. Jury instructions required under the ADA
Costa explicates the proper approach to formulating jury
instructions in an ADA case:
Once at the trial stage, the plaintiff is required to
put forward evidence of discrimination "because of" a
protected characteristic. After hearing both parties'
evidence, the district court must decide what legal
conclusions the evidence could reasonably support and
instruct the jury accordingly.[fn67]
The Costa court laid out two alternatives for the trial
judge. This approach reflects the fact that although the statute
uses "because of" language, the ADA plaintiff need not show more
than that impermissible motives were a "motivating factor" in any
adverse action. The approach also reflects the fact that the
evidence in a particular case may not suggest more than
one possible reason for the challenged action.
Under the first alternative in Costa, if the judge determines
that the only reasonable conclusion the jury could reach is that
discriminatory animus is the sole reason for the challenged
action or that discrimination played no role in the decision, the
jury should be instructed to determine whether the challenged
action was taken "because of" the prohibited reason.[fn68]
The second alternative applies in a case in which the evidence
could support a finding that discrimination is one of two or more
reasons for the challenged decision, at least one of which may be
legitimate. In that case the jury should be instructed to
determine whether the discriminatory reason was "a motivating
factor" in the challenged action.[fn69]
At issue in this case regarding Head's discrimination claims
was why Glacier fired him Ã¢â‚¬â€ whether it did so because he violated
the equipment policy, because Glacier perceived him as being
disabled, or because of some combination of the two. At issue
regarding Head's retaliation claims was whether Glacier fired him
because he violated the equipment policy, because he requested a
reasonable accommodation, or because of some combination of the
two. There was evidence to support a conclusion that each of
these reasons had a role in Head's discharge.
Thus, a jury could have found that Head was fired for violating
the equipment abuse policy, because of his perceived disability,
or for both reasons. It was error therefore for the court to
refuse to give the requested mixed-motive instruction.
The district court's use of "because of" and "because" jury
instructions in this case "does not require reversal if the error
was `more probably than not harmless.'"[fn70] The harmless
error standard requires error to be proven harmless more probably
than not,[fn71] which in practical effect means that an error
is prejudicial unless evidence more probably than not proves
As noted, a jury could have found that Head was fired for
violating the equipment abuse policy, because of his perceived
disability, or both. Under the correct causation standard, the
second or third of these findings should have meant liability for
Glacier. But the "because of" instruction given could have
allowed a jury to conclude that Head needed to show sole
causation and thus to deny liability for Glacier even though the
jury had found that both reasons played a role in motivating
Glacier's discharge of Head. Thus, the instructions given
improperly favored Glacier.
The record contains no indication that the jury's verdict was
more likely based on the finding that Glacier's action was based
solely on Head's performance. Thus, it is not possible to
conclude that the error in instructions was more likely than not
harmless to Head. Because the instructional error cannot be shown
to be harmless, we vacate the jury verdict.
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
REVERSED and REMANDED in part, AFFIRMED in part. Each
party shall bear its own costs on appeal.
[fn1] 299 F.3d 838 (9th Cir. 2002), aff'd, 539 U.S. 90,
123 S.Ct. 2148, 156 L.Ed.2d 84 (2003).
[fn2] Id. Costa states that:
If, based on the evidence, the trial court determines
that the only reasonable conclusion a jury could
reach is that discriminatory animus is the sole
cause for the challenged employment action or that
discrimination played no role at all in the
employer's decisionmaking, then the jury should be
instructed to determine whether the challenged action
was taken "because of" the prohibited reason.
. . .
In contrast, in cases in which the evidence could
support a finding that discrimination is one of two
or more reasons for the challenged decision, at least
one of which may be legitimate, the jury should be
instructed to determine . . . whether the
discriminatory reason was "a motivating factor" in
the challenged action.
Costa, 299 F.3d at 856-57 (emphasis in original). The district
court was correct in assuming that Costa applies to ADA
actions. See infra Part III.B.2.
[fn3] Fraser v. Goodale, 342 F.3d 1032, 1037 (9th Cir. 2003),
cert. denied, 541 U.S. 937, 124 S.Ct. 1663, 158 L.Ed.2d 358
[fn4] Id. at 1036 (quoting Hopkins v. Dow Corning Corp.,
33 F.3d 1116, 1121 (9th Cir. 1994)) (parallel citation omitted).
[fn5] Id. at 1037.
[fn6] 192 F.3d 1226 (9th Cir. 1999).
[fn7] See McAlindin, 192 F.3d at 1235-36.
[fn8] Id. at 1235.
[fn9] See id.
[fn10] Id. at 1235-36.
[fn11] Fraser, 342 F.3d at 1041.
[fn12] See id. at 1042.
[fn13] Id. at 1041-42.
[fn14] Id. at 1043-44.
[fn15] Id. at 1043 (emphasis added).
[fn16] See FTC v. Publ'g Clearing House, Inc., 104 F.3d 1168,
1171 (9th Cir. 1997).
[fn18] Fraser, 342 F.3d at 1040-44.
[fn19] Head also argues that he is substantially impaired in the
major life activities of caring for himself and concentrating.
However, we decline to consider these additional major life
activities because Head did not raise them before the district
court. See Pfingston v. Ronan Eng'g Co., 284 F.3d 999, 1003-04
(9th Cir. 2002).
[fn20] McAlindin, 192 F.3d at 1230.
[fn21] See id. at 1235.
[fn22] See McAlindin, 192 F.3d at 1235.
[fn23] Id. at 1230.
[fn24] Id. at 1235 (quoting Equal Employment Opportunity
Commission, EEOC Enforcement Guidance on the Americans with
Disabilities Act and Psychiatric Disabilities 5 (March 25,
[fn25] Id. at 1235-36.
[fn26] Id. at 1235.
[fn29] Id. at 1235-36.
[fn30] See Fraser, 342 F.3d at 1043.
[fn31] Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 307 (3d
Cir. 1999); see Fraser, 342 F.3d at 1044 (recognizing that
"thinking and communicating" is a major life activity).
[fn32] Fraser, 342 F.3d at 1044.
[fn33] See id.
[fn34] Although this claim is arguably a subset of Head's
thinking claim, because he alleged it separately in the district
court, we discuss it separately.
[fn35] Bartlett v. N.Y. State Bd. of Law Examiners,
226 F.3d 69, 80 (2d Cir. 2000).
[fn36] Fraser, 342 F.3d at 1039 (quoting
45 C.F.R. Ã‚Â§ 84.3(j)(2)(ii); citing 29 C.F.R. Ã‚Â§ 1630.2(i)) (emphasis
[fn37] Id. at 1039-40 (quoting Bragdon v. Abbott,
524 U.S. 624, 638, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998)).
[fn38] See id. at 1040.
[fn39] See id. at 1039-40.
[fn40] See id. at 1043-44.
[fn41] See Tritchler v. County of Lake, 358 F.3d 1150, 1155
(9th Cir. 2004).
[fn42] See SEC v. Coldicutt, 258 F.3d 939, 941 (9th Cir.
[fn43] See Tritchler, 358 F.3d at 1155.
[fn44] FED. R. EVID. 701.
[fn46] Costa, 299 F.3d at 858.
[fn47] Tritchler, 358 F.3d at 1154.
[fn48] Mockler v. Multnomah County, 140 F.3d 808, 812 (9th Cir.
1998) (citing Coursen v. A.H. Robins Co., 764 F.2d 1329, 1337
(9th Cir. 1985)).
[fn49] McPhail v. Milwaukie Lumber Co., 165 Or. App. 596,
999 P.2d 1144, 1149 (2000). Unlike the Oregon state disability claim,
retaliation claims under Oregon Revised Statute Ã‚Â§ 659A.109 are
not within the sections to be construed in accordance with the
ADA. See OR. REV. STAT. Ã‚Â§ 659A.139 (stating "ORS 659A.112 to
659A.139" are construed in accordance with the ADA).
[fn50] The causal standard under Oregon Revised Statute Ã‚Â§
659A.112 (Employment discrimination against disabled persons),
"shall be construed to the extent possible in a manner that is
consistent with any similar provisions of the [ADA]." OR. REV.
STAT. Ã‚Â§ 659A.139. Consequently, our decision regarding causation
under the ADA resolves the determination of causation for a
discrimination claim under Oregon law.
[fn51] We hold that the ADA "motivating factor" standard for
retaliation claims is a similar standard to Oregon's "substantial
and impermissible factor" causation standard. See McPhail,
999 P.2d at 1149. Accordingly, the discussion below regarding the
required jury instruction and prejudice in sections III.B.2 and 3
applies to the Oregon state law retaliation claim as well as the
[fn52] 42 U.S.C. Ã‚Â§ 12112(a). Title I applies to the private
sector and states that: "No covered entity shall discriminate
against a qualified individual with a disability because of the
disability of such individual in regard to job application
procedures, the hiring, advancement, or discharge of employees,
employee compensation, job training, and other terms, conditions,
and privileges of employment." Id. (emphasis added).
[fn53] 42 U.S.C. Ã‚Â§ 12132. Title II applies to the public sector
and states that: "Subject to the provisions of this subchapter,
no qualified individual with a disability shall, by reason of
such disability, be excluded from participation in or be denied
the benefits of the services, programs, or activities of a public
entity, or be subjected to discrimination by any such entity."
Id. (emphasis added).
[fn54] 42 U.S.C. Ã‚Â§ 12203(a). Title IV of the ADA precludes
retaliation against employees who seek to enforce their statutory
rights under the ADA. McNely v. Ocala Star-Banner Corp.,
99 F.3d 1068, 1073 (11th Cir. 1996). Title IV states that: "No
person shall discriminate against any individual because such
individual has opposed any act or practice made unlawful by this
chapter or because such individual made a charge, testified,
assisted, or participated in any manner in an investigation,
proceeding, or hearing under this chapter." 42 U.S.C. Ã‚Â§ 12203(a)
[fn55] Parker v. Columbia Pictures Indus., 204 F.3d 326, 337
(2d Cir. 2000); Baird ex rel. Baird v. Rose, 192 F.3d 462, 470
(4th Cir. 1999); Foster v. Arthur Andersen, LLP, 168 F.3d 1029,
1033-34 (7th Cir. 1999); McNely, 99 F.3d at 1076; Katz v. City
Metal Co., 87 F.3d 26, 33 (1st Cir. 1996); Buchanan v. City of
San Antonio, 85 F.3d 196, 200 (5th Cir. 1996); Pedigo v. P.A.M.
Transp., Inc., 60 F.3d 1300, 1301 (8th Cir. 1995). But see
Hedrick v. W. Reserve Care Syst., 355 F.3d 444, 454 (6th Cir.
2004) (holding that ADA plaintiff must show that disability was
sole reason for adverse employment action).
[fn56] McNely, 99 F.3d at 1073-74.
[fn57] Id. at 1074-75.
[fn58] Id. at 1075-76.
[fn59] Id. at 1077.
[fn60] Id. at 1073.
[fn61] Id. at 1074.
[fn62] Id. (quoting 42 U.S.C. Ã‚Â§ 12101(b)(1)).
[fn63] Parker, 204 F.3d at 337 (explaining that removal of the
word "solely" from the causation standard of the ADA, the broad
purpose of the ADA, and the causation standards applicable to
Title VII, "suggest  forcefully that Congress intended the
[ADA] to reach beyond the Rehabilitation Act to cover situations
in which discrimination on the basis of disability is one factor,
but not the only factor, motivating an adverse employment
action"); Baird, 192 F.3d at 470; Foster, 168 F.3d at 1033;
Katz, 87 F.3d at 33; Buchanan, 85 F.3d at 200; Pedigo,
60 F.3d at 1301. In McNely, the Eleventh Circuit described the
"because of" standard as conveying in ordinary usage "the idea of
a factor that made a difference in the outcome . . . [____] a
`but-for' liability standard." McNely, 99 F.3d at 1077.
[fn64] See, e.g., Hernandez v. Hughes Missile Sys. Co.,
362 F.3d 564, 568 (9th Cir. 2004); Snead v. Metro. Prop. & Cas. Ins.
Co., 237 F.3d 1080, 1094 (9th Cir. 2001).
[fn65] Hernandez, 362 F.3d at 568 (quoting Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 141, 120 S.Ct. 2097,
147 L.Ed.2d 105 (2000)) (internal alterations and quotation marks
omitted) (emphasis added).
[fn66] Snead, 237 F.3d at 1094 (citing Texas Dep't of Cmty.
Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089,
67 L.Ed.2d 207 (1981)).
[fn67] 299 F.3d at 856. Costa, though a Title VII case, applies
equally in the ADA context. Cf. Hernandez v. Hughes Missile
Systs. Co., 362 F.3d 564, 568 (9th Cir. 2004) (drawing on Title
VII precedent to set out plaintiff's burden in ADA case); Snead
v. Metro. Property & Cas. Ins. Co., 237 F.3d 1080, 1093 (9th
Cir. 2001) (holding that Title VII analysis applies in ADA case).
See also Baird, 192 F.3d at 470 (holding Title VII causation
standard applicable under the ADA); Foster v. Arthur Andersen,
LLP, 168 F.3d 1029, 1033 (7th Cir. 1999) (same).
[fn68] 299 F.3d at 856.
[fn69] Id. at 856-57.
[fn70] Mockler, 140 F.3d at 812.
T.G. NELSON, Circuit Judge, Specially Concurring.
I concur in the judgment and in all of the court's opinion
except Note 2 and Part III.B.2. I disagree with the court's
conclusion that the district court should choose between a
"because of" instruction or a motivating factor instruction in
ADA cases. That conclusion contradicts our holdings in Part
III.B.1 and Part III.B.3. In addition, it inappropriately imports
a Title VII standard that does not apply in the ADA context.
In Part III.B.1 we hold that "the ADA outlaws adverse
employment decisions motivated, even in part, by animus based on
a plaintiff's disability or request for an accommodation Ã¢â‚¬â€ a
motivating factor standard."[fn1] We also clearly state that
"`solely' is not the appropriate causal standard under any of the
ADA's liability provisions."[fn2] Thus, a plaintiff in an ADA
case is never required to show that impermissible animus was the
sole cause of an adverse employment decision. The plaintiff
need only show that such animus at least partially motivated
the employer to make its adverse employment decision.
Consequently, any jury instruction that requires a plaintiff to
show that an impermissible animus solely caused an adverse
employment action misstates the law.
In Part III.B.3 we hold that the district court's use of
"because of" and "because" jury instructions in this case was
prejudicial because a jury may impermissibly infer a "sole"
causation requirement from a "because of" instruction.[fn3]
We recognize that "the `because of' instruction given [by the
district court] could have allowed a jury to conclude that Head
needed to show sole causation and thus to deny liability for
Glacier even though the jury had found that both reasons played a
role in motivating Glacier's discharge of Head."[fn4] Because
the "because of" jury instruction may have caused Head to have to
prove sole causation, it misstated the law.
The majority's approach in Part III.B.2 directly contradicts
the holdings described above. It would require the trial court to
give a "because of" instruction if it "determines that the only
reasonable conclusion the jury could reach is that discriminatory
animus is the sole reason for the challenged action or that
discrimination played no role in the decision."[fn5] As we
hold in Part III.B.3, such an instruction would impermissibly
allow jurors to infer a "sole" causation requirement.[fn6] As
we hold in part III.B.1, a plaintiff is never required to
establish that discriminatory animus solely caused an adverse
employment decision. Thus, the majority's approach contradicts
the rest of its opinion and mandates the use of a jury
instruction the majority has itself found to be
The majority arrives at its internally contradictory opinion
because it imports a standard borrowed from Costa v. Desert
Palace, Inc.,[fn8] a Title VII case, that does not apply in
the ADA context. In Costa, we explained that after hearing all
the evidence, the district court must choose between a "because
of" and "motivating factor" jury instruction.[fn9] It would
choose the former if "the only reasonable conclusion a jury could
reach is that discriminatory animus is the sole cause for the
challenged employment action or that discrimination played no
role at all in the employer's decisionmaking."[fn10] It would
choose the latter if "the evidence could support a finding that
discrimination is one of two or more reasons for the challenged
decision, at least one of which may be legitimate."[fn11]
The choice of jury instructions makes sense in the Title VII
context. However, it does not make sense to transfer Title VII's
approach to the choice of jury instructions in an ADA
case.[fn12] Differences in the language and interpretation of
the two statutes requires a choice of jury instructions in the
Title VII context and only one jury instruction in the ADA
context: a motivating factor instruction. Although Title VII and
the ADA both contain "because of" type language for
liability,[fn13] Title VII contains additional statutory
language about defenses. Most significantly, Title VII allows for
a "same decision" defense in cases in which the plaintiff argues
that discrimination was not the sole motivation of the employer's
adverse action, but only a motivating factor.[fn14] In such
cases, if the jury concludes that the employer would have taken
the same adverse action even without the discriminatory reason,
the employer's liability is severely curtailed.[fn15] Thus, a
plaintiff's decision to establish discrimination as a sole cause
or merely a motivating factor is a significant one in Title VII
cases. Moreover, the language
in Title VII drives Costa's holding that the court must choose
between two alternative jury instructions depending on the
evidence the plaintiff presented.[fn16] There is no similar
language in the ADA. The ADA does not provide for a "same
decision" defense. Neither does it provide any mechanism for the
reduction of damages depending on whether discriminatory animus
motivated the employer's action in whole or in part. Finally, we
hold today that plaintiff's need only ever show that
discrimination is a motivating factor in an ADA case.
Accordingly, the rationale for selecting between jury
instructions in a Title VII case is absent in the ADA
For these reasons, I cannot join in Note 2 and Part III.B.2 of
the majority's opinion. Under our decision, only a "motivating
factor" jury instruction is appropriate in an ADA case.
[fn1] Majority Opinion at 1065.
[fn2] Id. at 1065.
[fn3] Id. at 1066.
[fn4] Id. at 1066.
[fn5] Id. at 1066.
[fn6] See id. at 1066 (acknowledging that a jury may infer a
"sole" causation requirement from a "because of" instruction).
[fn7] See White v. Ford Motor Co., 312 F.3d 998, 1012 (9th Cir.
2002) ("Jury instructions must fairly and adequately cover the
issues presented, must correctly state the law, and must not be
misleading."). Majority Opinion at 1066.
[fn8] 299 F.3d 838 (9th Cir. 2002), aff'd 539 U.S. 90,
123 S.Ct. 2148, 156 L.Ed.2d 84 (2003).
[fn9] Costa, 299 F.3d at 856.
[fn10] Id. (emphasis in original).
[fn11] Id. at 857. Despite these differing jury instructions,
we emphasized that regardless of the instruction given,
plaintiff's ultimate burden under Title VII is to show an adverse
employment decision "because of" discrimination. Id.
[fn12] Many aspects of the Title VII context do transfer to the
ADA context. See, e.g., Snead v. Metro. Prop. & Cas. Ins. Co.,
237 F.3d 1080, 1093 (9th Cir. 2001).
[fn13] See 42 U.S.C. Ã‚Â§Ã‚Â§ 2000e-2, 12112(a), 12132, 12203(a).
[fn14] 42 U.S.C. Ã‚Â§ 2000e-5(g)(2)(B). This section provides:
On a claim in which an individual proves a violation
under section 2000e-2(m) of this title and a
respondent demonstrates that the respondent would
have taken the same action in the absence of the
impermissible motivating factor, the court Ã¢â‚¬â€
(i) may grant declaratory relief, injunctive relief
(except as provided in clause (ii)), and attorney's
fees and costs demonstrated to be directly
attributable only to the pursuit of a claim under
section 2000e-2(m) of this title; and
(ii) shall not award damages or issue an order
requiring any admission, reinstatement, hiring,
promotion, or payment, described in subparagraph (A).
[fn17] Furthermore, in light of the fact that a plaintiff need
only show that discriminatory animus partially motivated the
challenged action, regardless of the evidence actually presented,
it is a waste of scarce judicial resources to require district
courts to make this unnecessary determination in an ADA case.