FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BECKY BECERRIL, 

No. 08-17070 Plaintiff-Appellant,

D.C. No.

v.  4:04-cv-00725-JMR

PIMA COUNTY ASSESSOR’S OFFICE,

OPINION Defendant-Appellee. 

Appeal from the United States District Court

for the District of Arizona

John M. Roll, Chief District Judge, Presiding

Argued and Submitted

November 3, 2009—San Francisco, California

Filed November 25, 2009

Before: Betty B. Fletcher, William C. Canby, Jr., and

Susan P. Graber, Circuit Judges.

Per Curiam Opinion

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COUNSEL

Richard M. Martinez (argued), Law Office of Richard M.

Martinez, Tucson, Arizona, for the plaintiff-appellant.

Stacey Roseberry (argued), Pima County Attorney’s Office,

Tucson, Arizona, for Defendant-Appellee.

OPINION

PER CURIAM:

Plaintiff Becky Becerril, an employee of the Pima County

Assessor’s Office (“Office”), appeals from an order granting

summary judgment to the Office. Reviewing the order de

novo, viewing the facts in the light most favorable to Becerril,

BECERRIL v. PIMA COUNTY ASSESSOR’S 15613
and drawing all reasonable inferences in her favor, we conclude that there is no genuine issue of material fact for trial.

See Hernandez v. Hughes Missile Sys. Co., 362 F.3d 564, 568

(9th Cir. 2004). We therefore affirm the district court.

Becerril, who has a temporomandibular disorder (“TMD”),

worked in the Office’s mobile home section until December

2003, at which time the Pima County Assessor, Richard

Lyons, decided to reassign her to the Office’s public service

section. The record suggests that the public service section

can be stressful, and that Becerril’s TMD is aggravated by

stress. Becerril requested a transfer out of the public service

section as a reasonable accommodation under the Americans

with Disabilities Act (“ADA”). Her request was denied. She

currently works full-time in the Office’s audit section.

After her request for a reasonable accommodation was

denied, Becerril filed suit under the ADA, claiming that the

Office had discriminated against her by reassigning her

because of her disability and by refusing to engage in the

ADA’s “interactive process” after she had requested a reasonable accommodation. The district court dismissed these

claims on summary judgment.

1. Discriminatory Reassignment Claim

[1] We assume without deciding that Becerril has stated a

prima facie case of discriminatory reassignment under the

ADA. The Office, however, has articulated several legitimate,

nondiscriminatory reasons for the reassignment, and thus to

survive summary judgment Becerril must raise a genuine

issue of material fact as to whether those reasons are pretexts

for discrimination. Costa v. Desert Palace, Inc., 299 F.3d 838,

855 (9th Cir. 2002) (en banc), aff’d, 539 U.S. 90 (2003).

[2] We conclude that Becerril has failed to raise a genuine

issue of material fact on this issue. There is no evidence that

Lyons reassigned Becerril because her coworkers in the pub15614 BECERRIL v. PIMA COUNTY ASSESSOR’S
lic service section complained about accommodations she

received for her TMD; the complaints Lyons received were

about Becerril’s alleged misconduct. The fact that Lyons

never publicly articulated his concerns about the alleged misconduct also fails to raise a genuine issue, for

“[c]ircumstantial evidence of pretext must be specific and

substantial.” Bergene v. Salt River Project Agric. Improvement & Power Dist., 272 F.3d 1136, 1142 (9th Cir. 2001). His

failure to investigate the allegations also does not show pretext, since Lyons was concerned with the “morale problem”

the allegations created and not the allegations themselves.

Finally, Becerril’s disbelief of Lyons’s explanations for the

reassignment cannot create a genuine issue of fact on pretext,

because there is no evidence to substantiate her disbelief. See

Schuler v. Chronicle Broad. Co., 793 F.2d 1010, 1011 (9th

Cir. 1986) (purely “subjective personal judgments do not raise

a genuine issue of material fact”). Consequently, the district

court did not err in granting summary judgment on Becerril’s

discriminatory reassignment claim.

2. Reasonable Accommodation Claim

[3] To be entitled to the interactive process that leads to a

reasonable accommodation, an employee must have a “disability” within the meaning of the ADA. See 42 U.S.C.

§ 12112(b)(5)(A) (2007). While the ADA recognizes three

different ways in which one can have a disability, see id.

§ 12102(2)(A)-(C), Becerril claims only that she has “a physical or mental impairment that substantially limits one or more

. . . major life activities,” id. § 12102(2)(A). We conclude that

Becerril has not raised a triable issue on whether her TMD

substantially limits her in speaking, eating, seeing, sleeping,

and thinking and concentrating.

[4] As an initial matter, we do not agree with Becerril that

the ADA Amendments Act of 2008, Pub. L. No. 110-325, 122

Stat. 3553 (“ADAAA”), which alters the ADA’s definition of

“disability,” applies retroactively. We do not apply statutes

BECERRIL v. PIMA COUNTY ASSESSOR’S 15615
retroactively “absent clear congressional intent favoring such

a result.” Landgraf v. USI Film Prods., 511 U.S. 244, 280

(1994). The ADAAA does not show clear retroactive intent,

providing instead that “[t]his Act and the amendments made

by this Act shall become effective on January 1, 2009.”

ADAAA § 8, 122 Stat. at 3559 (emphasis added). Following

our sister circuits, we conclude that the ADAAA does not

apply retroactively. See Lytes v. DC Water & Sewer Auth.,

572 F.3d 936, 941 (D.C. Cir. 2009) (examining the statute and

concluding that “the delayed effective date in the ADAAA . . .

admits of only one explanation: The Congress intended the

statute to have prospective only effect”); accord Fredricksen

v. United Parcel Serv. Co., 581 F.3d 516, 521 n.1 (7th Cir.

2009); Milholland v. Sumner County Bd. of Educ., 569 F.3d

562, 565-67 (6th Cir. 2009); EEOC v. Agro Distrib., LLC,

555 F.3d 462, 469 n.8 (5th Cir. 2009).

[5] Becerril is not substantially limited in speaking because

she is limited only in talking constantly, for a long time, and

under stress. See Coons v. Sec’y of U.S. Dep’t of Treasury,

383 F.3d 879, 885 (9th Cir. 2004). She is not substantially

limited in eating because eating hard foods is not “of central

importance to daily life,” Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 197 (2002), and an inability to eat hard

foods is not substantially limiting. See Frank v. United Airlines, Inc., 216 F.3d 845, 848, 856-57 (9th Cir. 2000). She has

produced no evidence besides conclusory assertions on how

her impairment substantially limits her seeing or sleeping.

And though her pain and grogginess limited her thinking and

concentrating at times when she was working, Becerril has

not raised a genuine issue of material fact on whether her

intermittent symptoms substantially limited her ability to

think and concentrate not just at work but outside of work as

well. See Toyota Motor, 534 U.S. at 200-01. We conclude,

then, that the district court did not err by granting the Office

summary judgment on Becerril’s reasonable accommodation

claim.

AFFIRMED.

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