After 18 years of driving for UPS, Charles Gribben was diagnosed with congestive heart failure and cardiomyopathy.? ?He asked UPS to afford him accommodations ?for ?limitations ?imposed ?by ?his cardiologist, which included an air-conditioned truck.?? Although UPS usually gave him an air- conditioned? truck,? it? refused? to? guarantee? him one. ?After he filed an EEOC charge, the EEOC issued a favorable cause finding. ?Then, when he was not given an air-conditioned truck he refused to work, and UPS fired him allegedly for insubordination.? ?The EEOC issued a second favorable cause finding, and Gribben sued UPS under the ADA.? The trial court granted summary judgment for UPS on the discrimination claim holding that Gribben was able to perform the major life activities at issue and that he ?failed to submit evidence of the abilities of the average person in the general population to participate in outdoor activities in the Phoenix summer.??? At trial? the? jury? found? for ?UPS.?? ?On? appeal,? the Ninth?? Circuit?? upheld?? the?? jury?? verdict?? on retaliation ?but ?reversed? summary ?judgment ?on the ?discrimination ?claim? holding ?that ?Gribben was not required to supply comparative evidence about the average person and that the testimony of Gribben and his cardiologist created an issue of fact for the jury. ?They testified that when he worked in ?the extremes of heat? he experienced shortness? of? breath,? weakness,? and? chest? pain, and could not engage in any heavy lifting or exertion for prolonged periods.?? The Court found no reason to reverse the jury?s verdict. ?Gribben

  1. United Parcel Service, Inc., 528 F.3d 1166 (9th Cir. 2008) (Canby, Thompson, Smith).

Employee Must Prove Either that She was ?Qualified? or ?Eligible? for the Position in Question to Establish Prima Facie Case of Promotion Discrimination

The?? plaintiff?? was?? a?? federal?? employee?? who claimed denial of a promotion and an extension of a work detail because of age and retaliation. The district court granted summary judgment to the agency. ?The Ninth Circuit court affirmed on the discrimination claim and reversed on the retaliation claim.? ?The panel held that the employee failed to show he had the requisite knowledge and experience to be promoted to the position? at ?issue. ?The ?denial ?of? the ?work ?detail claim was untimely.?? The district court had held that federal employees could not bring retaliation claims under the ADEA.? ?The Supreme Court rejected this argument in Gomez-Perez v. Potter,128 S. Ct. 1931 (2008). ?Whitman v. Mineta, No.05-36231 (9th Cir. 9/2/08) (D.W. Nelson, Tashima, Fisher).