                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             JAN 10 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


JULIA TAYLOR,                                    No.   15-15096

              Plaintiff-Appellant,               D.C. No.
                                                 3:13-cv-00185-RCJ-WGC
 v.

RENOWN HEALTH,                                   MEMORANDUM*

              Defendant-Appellee.


                    Appeal from the United States District Court
                             for the District of Nevada
                    Robert Clive Jones, District Judge, Presiding

                          Submitted December 14, 2016**
                             San Francisco, California

Before: HAWKINS, BERZON, and MURGUIA, Circuit Judges.

      Julia Taylor appeals the district court’s grant of summary judgment in her

suit against prospective employer Renown Health (Renown), in which she alleged

Renown violated the Americans with Disabilities Act (ADA) by rescinding a


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
conditional job offer after obtaining the results of a pre-employment medical exam.

Reviewing the district court’s summary judgment order de novo, we affirm. See

Leonel v. Am. Airlines, Inc., 400 F.3d 702, 708 (9th Cir. 2005).

        1.    “To sustain a claim under the ADA, [Taylor] must show that (1) [s]he

is ‘disabled’ within the meaning of the Act; (2) [s]he is a ‘qualified individual’

within the meaning of the Act; and (3) [s]he was terminated because of h[er]

disability.” Kaplan v. City of N. Las Vegas, 323 F.3d 1226, 1229 (9th Cir. 2003).

        There are three ways to be “disabled” under the ADA, including “being

regarded as [disabled].” See Weaving v. City of Hillsboro, 763 F.3d 1106, 1111

(9th Cir. 2014), cert. denied sub nom. Weaving v. City of Hillsboro, Or., 135 S. Ct.

1500, 191 L. Ed. 2d 431 (2015). The “regarded as” disabled category requires only

that Taylor was subjected to a prohibited action on the basis of an actual or

perceived physical or mental impairment, whether or not that impairment was an

actual or perceived disability. 42 U.S.C. § 12102(3)(A).

        To satisfy the “qualified individual” prong in a “regarded as” disabled case,

Taylor must make a prima facie showing that she was able to perform the essential

functions of the job without accommodation. See Kaplan, 323 F.3d at 1230.

“[T]here is no duty to accommodate an employee in an ‘as regarded’ case.” Id. at

1233.


                                           2
       Renown decided not to hire Taylor for a Certified Nursing Assistant (CNA)

position in its telemetry unit on the basis of a physical impairment noted in

Taylor’s pre-employment medical evaluation. Thus, Taylor made a prima facie

showing that she was “regarded as” disabled by Renown.

       However, Taylor did not present evidence that she could perform the

essential functions of the CNA job without accommodation. The CNA job

description and declarations from employees in the telemetry unit established that

lifting more than fifty pounds and lifting above shoulder-level were essential job

functions, as telemetry CNAs must ambulate overweight and obese patients several

times a day. Evidence from Taylor’s other CNA jobs demonstrated those positions

rarely required the type of lifting that was routine at Renown, and generally

indicated Taylor’s difficulty with completing heavy lifting tasks when they did

arise. Additionally, Taylor admitted that she had a condition that restricts her

ability (1) to lift; (2) to lift over 50 pounds; and (3) to lift her left arm above

shoulder-level.

       We accordingly affirm the district court’s grant of summary judgment to

Renown as to whether Taylor was unable to perform the essential lifting functions

at Renown without accommodations.




                                             3
      2.     In addition to barring intentional discrimination, the ADA “prohibit[s]

medical examinations and inquiries until after the employer has made a ‘real’ job

offer to an applicant.” Leonel, 400 F.3d at 708. Here, the physical examination was

a “medical evaluation” under the statute. See Indergard v. Georgia-Pac. Corp.,

582 F.3d 1049, 1054 (9th Cir. 2009) (noting that range of motion and muscle

strength tests—which were conducted as part of Taylor’s physical—are considered

medical examinations under the Equal Employment Opportunity Commission’s

guidance).

      “[P]laintiffs need not prove that they are qualified individuals with a

disability in order to bring claims challenging the scope of medical examinations

under the ADA.” Fredenburg v. Contra Costa Cty. Dep’t of Health, 172 F.3d

1176, 1182 (9th Cir. 1999). But “Congress’ role in identifying and elevating

intangible harms does not mean that a plaintiff automatically satisfies the [Article

III] injury-in-fact requirement whenever a statute grants a person a statutory right

and purports to authorize that person to sue to vindicate that right. Article III

standing requires a concrete injury even in the context of a statutory violation.”

Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1549, 194 L. Ed. 2d 635 (2016).

      Here, Taylor has not demonstrated a concrete injury from the timing of the

medical exam. The sequenced evaluation requirements of 42 U.S.C. § 12112(d)(2)


                                           4
protect against two types of injuries: first, injuries arising out of a lack of clarity

regarding “whether [applicants] were ‘rejected because of disability, or because of

insufficient skills or experience or a bad report from a reference;’” and secondly,

injuries to those who wish to keep information about “hidden medical conditions”

private until “they have been assured that as long as they can perform the job’s

essential tasks, they will be hired.” Leonel, 400 F.3d at 709 (quoting Equal

Employment Opportunity Commission, ADA Enforcement Guidance:

Preemployment Disability-Related Questions and Medical Examinations, 1

(1995)).

       Renown did not dictate the order in which the further checks would be

carried out after the conditional job offer; it specified the immediate scheduling of

the medical examination, not the timing of the examination. And Renown did make

perfectly clear that Taylor’s shoulder impairment was the reason the employer

rescinded the conditional job offer. Consequently, neither the conditional privacy,

nor the notice, injuries protected against by the statute occurred. Because Taylor

failed to establish a concrete injury from voluntarily scheduling the examination

and answering medical inquiries before Renown completed all other pre-

employment evaluations, she has no standing to bring a claim under 42 U.S.C. §

12112(d).


                                             5
AFFIRMED.




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