FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHARLES W. GRIBBEN,  No. 06-15964

Plaintiff-Appellant, D.C. No.

v.  CV-04-2814-PHXUNITED PARCEL SERVICE, INC.,

FJM

Defendant-Appellee. OPINION 

Appeal from the United States District Court

for the District of Arizona

Frederick J. Martone, District Judge, Presiding

Argued and Submitted

February 12, 2008—San Francisco, California

Filed June 16, 2008

Before: William C. Canby, Jr., David R. Thompson, and

Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Thompson

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COUNSEL

Daniel Bonnet, Phoenix, Arizona, for the plaintiff-appellant.

David T. Barton, Phoenix, Arizona, for the defendantappellee.

OPINION

THOMPSON, Senior Circuit Judge: 

Charles W. Gribben appeals the district court’s judgment in

favor of his employer United Parcel Service (“UPS”) in his

action alleging disability discrimination and retaliation in violation of the Americans with Disabilities Act (“ADA”). Gribben, who suffers from congestive heart failure and

cardiomyopathy, requested and was denied accommodations

for certain limitations imposed by his cardiologist. The district court granted summary judgment in favor of UPS on the

discrimination claim and a jury returned a verdict in favor of

UPS on the retaliation claim. We have jurisdiction under 28

U.S.C. § 1291. We affirm the jury verdict in favor of UPS on

the retaliation claim, reverse the district court’s summary

judgment in favor of UPS on the disability claim, and remand

that claim to the district court for further proceedings.

I. Background

In 1982, Gribben commenced employment with UPS and

since 1998 worked as a UPS shifter driver. Shifter drivers use

GRIBBEN v. UNITED PARCEL SERVICE 6941
vehicles to transfer trailers among various sites. Gribben was

generally assigned to an air-conditioned vehicle but, due to

business demands, UPS could not guarantee that he would

always have an air-conditioned vehicle. 

In June 2000, Gribben was diagnosed with dilated cardiomyopathy and paroxysmal arterial fibrillation. He has substantial limitations as a result of this condition. He testified

that he becomes light-headed, has difficulty concentrating and

breathing, has chest pain when undertaking activities in

extreme heat for extended periods of time, and has similar

symptoms when lifting weight over 50 pounds. Gribben was

told by his cardiologist not to engage in certain activities for

more than 20 minutes at a time in temperatures above 90

degrees Fahrenheit. 

Due to his medical condition, and pursuant to the ADA,

Gribben requested that UPS provide him with an airconditioned vehicle. UPS denied his request for this accommodation. Beginning in June 2002, Gribben took an unpaid

leave of absence. On or about November 15, 2002, Gribben

filed a charge of discrimination and retaliation with the

EEOC, alleging that he was both discriminated and retaliated

against on the basis of his disability. The EEOC conducted an

investigation and issued a favorable cause finding by way of

a Letter of Determination dated March 17, 2004. 

In June 2003, Gribben returned to work at UPS. Although

UPS had denied Gribben’s request for accommodation, UPS

nonetheless provided him with an air-conditioned vehicle for

every workday from June 2003 until March 31, 2004. On

March 31, 2004, when UPS failed to provide an airconditioned vehicle for Gribben to use, he refused to work.

He was then discharged by UPS. UPS contends that Gribben

was discharged for gross insubordination, while Gribben

asserts that he was discharged in retaliation for the EEOC

charge. 

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On April 1, 2004, following his termination, Gribben filed

a second charge with the EEOC, alleging retaliation in violation of the ADA. The EEOC investigated that charge and

issued a second favorable cause finding. After obtaining the

requisite Notice of Right to Sue, Gribben filed suit. 

The district court granted summary judgment in favor of

UPS on Gribben’s claim of ADA discrimination; the retaliation claim went to trial. In response to a motion in limine, the

district court ruled that Gribben had not specifically pled facts

pertaining to his contentions concerning fitness for duty and

forced unpaid medical leave as part of his retaliation claim

and refused to allow the jury to consider those matters. Consequently, the only issue left for the jury to decide was

whether Gribben’s March 31, 2004 termination was in retaliation for Gribben having filed his first charge of discrimination

with the EEOC. 

The jury rendered its verdict in favor of UPS and the district court entered judgment accordingly. Gribben timely filed

a Motion for New Trial raising claims of error regarding the

trial court’s summary judgment and its rulings on UPS’s

motion in limine and on evidentiary and jury instruction matters. That motion was denied. Gribben now appeals the district court’s summary judgment in favor of UPS on his ADA

discrimination claim, and the district court’s denial of his

motion for a new trial on his retaliation claim. 

II. Discussion

A. ADA Claim

We review de novo a grant of summary judgment. See

Summers v. A. Teichert & Son, Inc., 127 F.3d 1150, 1152 (9th

Cir. 1997). Viewing the evidence in the light most favorable

to the nonmoving party, we must determine whether there is

a genuine issue of material fact and whether the district court

correctly applied the relevant substantive law. See id.

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[1] The ADA prohibits discrimination against a qualified

individual with a disability in regard to terms, conditions and

privileges of employment. 42 U.S.C. § 12112(a). The ADA

defines “disability” as “(A) a physical or mental impairment

that substantially limits one or more of the major life activities

of such individual; (B) a record of such an impairment; or (C)

being regarded as having such an impairment.” 42 U.S.C.

§ 12102(2). 

[2] Whether Gribben’s heart condition constituted a disability under the ADA involves three inquiries: (1) whether Gribben’s condition was a physical impairment; (2) whether the

life activities from which he was impaired (e.g., walking)

amounted to major life activities; and (3) whether Gribben’s

impairment substantially limited him from performing the

identified major life activities. Bragdon v. Abbott, 524 U.S.

624, 631 (1998). 

Gribben argues that there is substantial evidence in the

record that he was disabled within the meaning of the ADA

due to substantial limitations on a number of major life activities including, but not limited to, walking. UPS concedes that

Gribben’s heart condition is a physical impairment, and that

the life activities limited by his heart condition, including

walking, amount to “major life activities.” UPS, however,

argues that Gribben’s impairment did not “substantially limit”

him from performing any major life activity. 

“Substantially limits” is defined as:

i) Unable to perform a major life activity that the

average person in the general population can perform; or 

ii) Significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to

the condition, manner, or duration under which the

6944 GRIBBEN v. UNITED PARCEL SERVICE
average person in the general population can perform that same major life activity. 

29 C.F.R. § 1630.2(j)(1) (2006). 

The regulations further provide that whether someone is

substantially limited in a major life activity is to be examined

using such factors as: 

i) The nature and severity of the impairment; 

ii) The duration or expected duration of the impairment; and 

iii) The permanent or long term impact, or the

expected permanent or long term impact of or resulting from the impairment. 

29 C.F.R. § 1630.2(j)(2) (2006). 

The district court considered Gribben’s claim under this

framework and determined that his disability was not substantially limiting “on its face” because he was able to perform

the major life activities at issue.1 The district court granted

summary judgment in favor of UPS because Gribben “failed

to submit any evidence as to the abilities of an average person

in the general population to participate in outdoor activities in

the Phoenix summer.” Gribben argues that the district court

erred in reaching this conclusion because he was not required

to submit such comparative evidence. We agree. 

[3] Gribben’s testimony alone regarding the significance of

his impairment is sufficient to create a genuine issue of material fact at the summary judgment stage. See Head v. Glacier

Nw., Inc., 413 F.3d 1053, 1058 (9th Cir. 2005) (“[O]ur prece1He could not, however, perform them for more than 20 minutes in temperatures over 90 degrees. 

GRIBBEN v. UNITED PARCEL SERVICE 6945
dent supports the principle that a plaintiff’s testimony may

suffice to establish a genuine issue of material fact.”). As a

result, Gribben was not required to submit the comparative

evidence the district court required. Id. (“Ninth Circuit precedent does not require comparative or medical evidence to

establish a genuine issue of material fact regarding the impairment of a major life activity at the summary judgment stage.”).2

[4] To determine whether the grant of summary judgment

was appropriate, we must review the evidence of Gribben’s

alleged impairment. Id. at 1059. Gribben’s cardiologist testified at his deposition that Gribben had nonischemic cardiomyopathy, and that when Gribben worked in the extremes of

heat, he experienced shortness of breath, weakness and chest

pain. The cardiologist also testified that Gribben could not do

any heavy lifting or exertion for prolonged periods of time.

Gribben asserted that as a result of this disability, he experienced “labored breathing,” that he could not “be in heat for

extended periods of time,” and that he experienced dizziness,

fatigue and difficulty concentrating. He testified at his deposition that he experienced labored breathing when he was anxious and when he exerted himself too much and in the heat.

2UPS’s reliance on Wong v. Regents of the University of California is

misplaced. 410 F.3d 1052 (9th Cir. 2005). In Wong, the plaintiff had a

learning impairment, which he claimed constituted a “disability” under the

ADA. Id. at 1055. We focused on the particular facts of that case in asking

“whether a person who has achieved considerable academic success,

beyond the attainment of most people or of the average person, can nonetheless be found to be ‘substantially limited’ in reading and learning.” Id.

After reviewing the evidence, we concluded that such a finding was “implausible.” Id. at 1065. “Because the factual context made implausible [the

plaintiff’s] contention that he was disabled in the activity of ‘learning’ as

compared to most people, he was required to come forward with more

persuasive evidence than otherwise would be necessary to show that there

is a genuine issue for trial.” Id. at 1066 (citations and internal quotation

marks omitted) (emphasis added). We concluded that Wong failed to meet

this heightened evidentiary burden. Id. Nothing in the present case, by

contrast, makes a disability finding implausible and necessitates a higher

evidentiary burden. 

6946 GRIBBEN v. UNITED PARCEL SERVICE
Gribben testified that he had labored breathing “on and off all

the time” and that the labored breathing stopped him from

doing work that required too much exertion such as jobs that

require “loading or unloading trailers or sorting” or extended

physical activity such as lifting. He also testified that his heart

condition substantially limits his ability to walk, run, climb,

pull, push, squat, bend, lift and breathe. 

[5] There was sufficient evidence in the record at the summary judgment proceeding to establish a genuine issue of

material fact as to whether Gribben’s impairment was substantial and limited his ability to perform regular daily activities including breathing, thinking and physical activities in

temperatures of 90 degrees or more. Accordingly, the district

court erred in determining at summary judgment that Gribben

was not disabled within the meaning of the ADA. 

B. Retaliation Claim

Gribben appeals certain evidentiary rulings made during

the jury trial of his retaliation claim. We review evidentiary

rulings for an abuse of discretion. See Tritchler v. County of

Lake, 358 F.3d 1150, 1155 (9th Cir. 2004). Gribben contends

that he was denied the opportunity to elicit testimony about

UPS’s failure to personally speak to his treating physician

about his accommodation request. This argument was not

presented to the district court, and therefore it has been waived.3

See, e.g., Drummond v. City of Anaheim, 343 F.3d 1052, 1058

n.5 (9th Cir. 2003). Gribben also argues that the district court

erred in excluding evidence that the request for an independent medical examination and forced medical leave constituted retaliation for his having requested accommodation

under the ADA. Because Gribben did not assert this claim in

his complaint, the parties’ joint proposed case management

3

In addition, the testimony does not appear to be relevant to Gribben’s

retaliation claim, although it may be relevant to Gribben’s discrimination

claim on remand. 

GRIBBEN v. UNITED PARCEL SERVICE 6947
plan, or in his response to UPS’s motion for summary judgment, the district court did not abuse its discretion in excluding at trial evidence pertaining to the claim. See S.M. v. J.K.,

262 F.3d 914, 917 (9th Cir. 2001), amended by 315 F.3d 1058

(2003). 

[6] Gribben contends the district court erred in excluding

the testimony of Charles Rahill which he offered “strictly for

impeachment purposes” and as to which he would have

agreed to a limiting instruction. The evidence was excluded

on the ground that Gribben had failed to disclose it in pretrial

discovery. We agree that the district court erred because

impeachment evidence does not have to be revealed in pretrial

disclosures. See Fed. R. Civ. P. 26(a)(1)(A), 26(a)(3). However, to reverse on the basis of this erroneous evidentiary ruling, the error must be prejudicial. See Tritchler, 358 F.3d at

1155. Prejudice means that, more probably than not, the district court’s error tainted the verdict. See McEuin v. Crown

Equip. Corp., 328 F.3d 1028, 1032 (9th Cir. 2003), cert.

denied, 540 U.S. 1160 (2004). 

[7] We conclude that the error in excluding Rahill’s testimony was not prejudicial. Jerry Dalzell, a UPS labor relations

manager, was the person who made the decision to terminate

Gribben. Although the excluded testimony which Rahill

would have given may have evidenced Dalzell’s knowledge

of findings by the EEOC, it would not have contradicted Dalzell’s testimony. As a result, the district court’s error was not

prejudicial. See Geurin v. Winston Indus., Inc., 316 F.3d 879,

882 (9th Cir. 2002). 

Other excluded evidence would have established that a conversation took place between Dalzell and another UPS manager, Steve Stevens. However, Dalzell did not deny that this

conversation took place — only that he did not recall it. The

exclusion of this evidence was insufficient to taint the jury’s

verdict. See McEuin, 328 F.3d at 1032; Guerin, 316 F.3d at

892. 

6948 GRIBBEN v. UNITED PARCEL SERVICE
[8] Gribben argues the district court should have admitted

UPS’s prior consent decree with the EEOC, which UPS

agreed to in 2001 as part of a “no-fault” settlement. The district court excluded the consent decree on the ground that its

probative value was outweighed by its potential for prejudice.

Gribben has provided no argument on appeal that would

establish that the district court erred in this ruling. In any

event, the district court did not abuse its discretion in refusing

to admit the consent decree because it was irrelevant and

would have been unduly prejudicial, confusing, and misleading. See Fed. R. Evid. 402, 403. 

[9] Finally, we conclude that the district court did not err

in refusing to give the jury a punitive damages instruction.

The jury determined that the evidence was insufficient to

establish a claim for retaliation. This determination supports

the district court’s decision that the same evidence was insufficient to warrant an instruction on punitive damages. See

Altera Corp. v. Clear Logic, Inc., 424 F.3d 1079, 1087 (9th

Cir. 2005) (error in instructing the jury does not require reversal if harmless). A punitive damages instruction may, however, be warranted in connection with Gribben’s disability

discrimination claim which we remand to the district court.

We express no opinion on that. 

The parties shall bear their own costs on appeal. 

AFFIRMED IN PART, REVERSED IN PART AND

REMANDED.

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