                                                                           FILED
                           NOT FOR PUBLICATION                              NOV 23 2009

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



SUSAN HEATON,                                    No. 08-55874

             Plaintiff - Appellant,              D.C. No. 3:06-cv-01403-J-NLS

  v.
                                                 MEMORANDUM *
PRUDENTIAL INSURANCE
COMPANY OF AMERICA; et al.,

             Defendants - Appellees.



                   Appeal from the United States District Court
                      for the Southern District of California
                  Napoleon A. Jones, Jr., District Judge, Presiding

                      Argued and Submitted October 5, 2009
                              Pasadena, California

Before: HALL, W. FLETCHER and CLIFTON, Circuit Judges.

       Susan Heaton appeals the district court’s order granting defendants’ motion

for summary judgment. Because the record manifests a genuine factual dispute

about whether Heaton became totally disabled while she was a full-time Isis




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
employee, summary judgment was improper. We vacate the judgment below and

remand for further proceedings.

      Heaton’s eligibility for benefits turns on whether she met her long-term

disability plan’s definition of “total disability” while she was a full-time Isis

employee covered by the plan.

      A factual dispute over the extent of Heaton’s disability arose before

Heaton’s last day of full-time employment at Isis on April 27, 2000, when she was

indisputably a “Covered Person” under the plan. Prudential and Isis do not dispute

that Heaton continued to work at her own occupation through April 27, 2000.

      Whether Heaton met the plan’s definition of “total disability” before April

27, 2000 depends on whether, before that date, she was “not able to perform, for

wage or profit, the material and substantial duties of [her] occupation” because of

her disability. Heaton submitted evidence that the usual requirements of her

position included ten to twelve hours of work per day, with computer and

handwriting tasks for more than eight hours per day; that her doctors imposed

substantial restrictions on her activities that left her well short of being able to meet

these requirements; and that two doctors believed that she was disabled or

otherwise unable to perform her “regular work” while she was a full-time




                                            2
employee at Isis. That was more than enough to establish a genuine issue of

material fact.

      Defendants would, in effect, require a negative productivity report, a poor

job performance evaluation, or a memo regarding the quality of Heaton’s work to

establish total disability. They argue that Isis provided accommodations to allow

Heaton to remain in her job and did not evaluate her poorly because of her physical

limitations. But that does not conclusively establish that she was not “totally

disabled.” That a sympathetic employer might make such accommodations or

tolerate an individual’s limitations for at least some period of time does not prove

that the employee was in fact able to perform “the material and substantial duties

of [her] occupation.” A reasonable jury could find, through its own comparison of

medical restrictions and the usual requirements of the employee’s job, that the

employee was simply not physically capable of performing the tasks her job

required at the relevant time. An employer’s failure to come to that same

conclusion—or to bother to register its dissatisfaction in the form of a negative

performance review—would not conclusively undermine such a reasonable jury

determination.

      VACATED and REMANDED.




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