25-Pound lifting restriction not a disability

A registered nurse hurt her back on the job, and was in and out on leave over the next five years. Her doctor finally returned her to work with a lifting restriction. The hospital previously had accommodated her injury by modifying her schedule and assigning her to a light-duty position. However, when it was informed that the restrictions on her ability to lift were permanent, the hospital determined that she could not provide total patient care and placed her on a leave of absence. She applied for another position, but her application for the job was rejected. She currently is employed in a sales position at a health care equipment company.

The Ninth Circuit Court of Appeals held that the nurse was not a qualified individual with a disability, because she was not substantially limited in her major life activities. Since she was able to do a broad range of jobs, the Court held, she was not disabled under the Americans with Disabilities Act.

In assessing whether Thompson is so limited, we are in territory well-charted by our colleagues in other circuits. A number of courts have held that lifting restrictions similar to Thompson's are not substantially limiting, and we agree. See Williams v. Channel Master Satellite Sys., Inc., 101 F.3d 346, 349 (4th Cir. 1996) (declaring, as a matter of law, that a 25-pound lifting limitation "does not constitute a significant restriction on one's ability to lift, work, or perform any other major life activity"), cert. denied, 117 S. Ct. 1844 (1997). see also Aucutt v. Six Flags Over Mid-America, Inc., 85 F.3d 1311, 1319 (8th Cir. 1996) (holding that a 25-pound lifting restriction did not substantially limit any major life activities); Ray v. Glidden Co., 85 F.3d 227, 229 (5th Cir. 1996) (concluding, where a plaintiff could lift and reach as long as he avoided heavy lifting, that he was not substantially impaired).

We further conclude that Thompson has not raised a genuine issue of fact as to whether her injury curtails her general ability to work. To establish a substantial limitation, Thompson must demonstrate that she is "significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities." 29 C.F.R. 1630.2(j) (3)(i). The inability to perform one particular job does not constitute such a limitation. Id.

Furthermore, we reject Thompson's assertion that Holy Family "regarded" her as substantially limited in her ability to lift or work. See 42 U.S.C. 12102(2)(C). "As with real impairments, . . . a perceived impairment must be substantially limiting and significant." Gordon v. E.L. Hamm & Assocs., Inc., 100 F.3d 907, 913 (11th Cir. 1996). Even if Holy Family believed that Thompson was incapable of lifting 25 pounds, it does not follow that the hospital regarded her as disabled. We noted previously that a 25-pound restriction does not amount to a substantial limitation on the ability to lift. See Williams, 101 F.3d at 349.

Thompson also points to affidavits by her supervisors noting her inability to perform the duties required in a position of total patient care. However, an employer's decision to terminate an employee "based upon the physical restrictions imposed by [her] doctor . . . does not indicate that [the employer] regarded [her] as having a substantially limiting impairment." Wooten, 58 F.3d at 386. The evidence does not establish that the hospital viewed Thompson as precluded from performing a broad class of jobs.[FOOTNOTE 3] Indeed, Thompson was made aware of another job opportunity at the hospital, and Holy Family submitted a counselor's affidavit enumerating several possible jobs in the nursing industry. See Gordon, 100 F.3d at 913 (determining that, in the context of perceived disabilities, a significant impairment is one that the employer views as foreclosing the type of employment involved); Ray, 85 F.3d at 229-30 (although an employee was terminated because his medical condition prevented him from performing his job as a lift truck operator, there was no evidence that his employer regarded him as incapable of performing another job); Welsh v. City of Tulsa, Okla., 977 F.2d 1415, 1419 (10th Cir. 1992) ("[A]n impairment that an employer perceives as limiting an individual's ability to perform only one job is not a handicap under the [Rehabilitation] Act.").

THOMPSON v. HOLY FAMILY HOSPITAL, a division of DOMINICAN HEALTH SERVICES,
___F4th___, 97 CDOS 6497 (9th Cir., August 15, 1997)

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