                                                                              FILED
                           NOT FOR PUBLICATION                                OCT 26 2011

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


CARMEN MELONE,                                   No. 10-17730

              Plaintiff - Appellant,             D.C. No. 2:08-cv-00868-GWF

  v.
                                                 MEMORANDUM*
PAUL EVERT’S RV COUNTRY, INC.,

              Defendant - Appellee.


                   Appeal from the United States District Court
                            for the District of Nevada
                   George W. Foley, Magistrate Judge, Presiding

                     Argued and Submitted October 12, 2011
                            San Francisco, California

Before: B. FLETCHER, REINHARDT, and TASHIMA, Circuit Judges.



       Carmen Melone sued his former employer, Paul Evert’s RV Country, Inc.,

(“Paul Evert’s”) alleging that his employment was terminated in violation of the

Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq. Melone

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
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underwent a radical prostatectomy to treat his prostate cancer and subsequently had

difficulty walking and standing. After a four-day trial, the jury reached a verdict

for Melone. The district court subsequently granted judgment as a matter of law in

favor of Paul Evert’s. The district court concluded that Melone failed to present

sufficient evidence that he was substantially limited in the major life activities of

walking and standing and therefore was not disabled under the ADA. Melone

appeals. We have jurisdiction under 28 U.S.C. § 1291.

      We review a grant of judgment as a matter of law de novo. Costa v. Desert

Palace, Inc., 299 F.3d 838, 859 (9th Cir. 2002) (en banc). “A jury’s verdict must

be upheld if it is supported by substantial evidence.” Johnson v. Paradise Valley

Unified Sch. Dist., 251 F.3d 1222, 1227 (9th Cir. 2001). “Substantial evidence is

evidence adequate to support the jury’s conclusion, even if it is also possible to

draw a contrary conclusion from the same evidence.” Id.

      Melone testified about numerous occasions on which he had difficulties

walking and standing. He stated more than once that he “had problems” walking

and standing and that walking was painful. “Although the evidence was far from

overwhelming and the jury was not compelled to conclude” that Melone was

disabled “neither can it be said that the jury’s conclusion to that effect was

unsupported by substantial evidence.” Id. at 1229.


                                           2
      Melone’s testimony focused on his difficulties walking and standing at

work. The plaintiff in an ADA case generally cannot rely on evidence that he was

restricted in performing activities only related to his job. Toyota Motor Mfg., Ky.,

Inc. v. Williams, 534 U.S. 184, 201–02 (2002).1 Melone’s testimony, however,

was sufficient for a reasonable jury to infer that Melone’s cancer significantly

restricted the manner and duration of his walking outside of work as compared

with the average person in the general population. See 29 C.F.R. § 1630.2(j)(1)

(2007).

      REVERSED and REMANDED for entry of judgment in favor of Plaintiff-

Appellant Melone in accordance with the jury verdict and the district court’s

rulings on back pay and front pay.




      1
        The Americans with Disabilities Amendment Act (ADAA) overturns
Toyota. See Pub. L. No. 110-325, 122 Stat. 3553 (2008), codified at 42 U.S.C. §
12101 et seq. The ADAA took effect on January 1, 2009. Id. The ADAA does
not apply retroactively. Becerril v. Pima Cnty. Assessor’s Office, 587 F.3d 1162,
1164 (9th Cir. 2009) (per curiam). The ADAA therefore does not apply to this
case.

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