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A newspaper reporter whose repetitive stress injuries have left her unable to use a computer keyboard isn’t “substantially limited” in major life activities under the Americans With Disabilities Act, the 9th U.S. Circuit Court of Appeals ruled Wednesday. The 2-1 majority said Fresno Bee reporter Jacalyn Thornton didn’t meet her burden of showing she was limited in her ability to work or perform manual labor. “In this case, Thornton was able to perform a wide range of manual tasks, including grocery shopping, driving, making beds, doing laundry and dressing herself,” wrote Judge Michael Daly Hawkins in Thornton v. McClatchy Newspapers, 01 C.D.O.S. 7070. “Her inability to type and write for extended periods of time is not sufficient to outweigh the large number of manual tasks that she can perform.” Judge Alex Kozinski concurred. In a dissent, Judge Marsha Berzon said the majority’s ruling ignores the reality that computers and the ability to type and write are essential skills in the modern world. “It should not be necessary to prove that the ability to use one’s arms and hands to produce, by computer (or by handwriting), written communications and records is a manual skill of enormous importance in our literate and technological society,” Berzon wrote. Thornton may still get her day in court. The case will proceed on claims filed under the California Fair Employment and Housing Act. An amendment that went into effect in January reduced the standard from showing that a plaintiff suffered “substantial limitation” as required under federal law to a more expansive standard of simply “limitation.” The judges unanimously remanded that portion of the case to the district court to determine whether the amended state law can be applied retroactively to the facts of this case. Thornton’s dispute with McClatchy Newspapers, her employer for 24 years, began in 1994 when she filed worker’s compensation claims alleging repetitive stress injuries. The company made accommodations, including workstation adjustments, new chairs, modified work schedules and a gym membership. She filed additional claims several years later when her condition worsened and the company granted her an extended leave. In 1997, the company contemplated voice recognition technology and reassignment as alternatives but ultimately concluded they were not viable. Thornton received a letter terminating her. Thornton filed her discrimination suit the same year, alleging that McClatchy violated the ADA and California’s Fair Employment and Housing Act. The district court granted summary judgment for McClatchy on the ground that Thornton didn’t show she was disabled within the meaning of the ADA. Thornton contended that McClatchy regarded her as disabled, as evidenced by the company’s extensive accommodation of her limitations. But Wednesday’s majority maintained that Thornton’s work restrictions did not rise to the level of “substantial limitation.” Hawkins said that McClatchy presented evidence that Thornton could find alternative work as a teacher or free-lancer, and also that she was still able to perform many manual tasks. As for the employer’s steps to accommodate her, Hawkins said they should not be taken as proof she was disabled. Kathryn Morrison, a partner with Seyfarth, Shaw, Fairweather & Geraldson in San Francisco, praised the majority for saying a decision to accommodate shouldn’t be seen as proof of disability. “Otherwise, that would create a Catch-22 for employers where they’re damned if they do, damned if they don’t accommodate.” In her dissent, Berzon noted that computers today are used to do everything, from sending letters to paying bills, and are present in many school and work environments. She pointed to a 1997 report that about half of all Americans use computers at work. “The fact that using a computer is so essential to modern life that teaching that skill universally has become embedded in our national educational policy must inform our understanding of the ADA’s disability definition,” she said. Walter Whelan, Thornton’s Fresno, Calif.-based lawyer, criticized the majority’s restrictive reading of the ADA. “If you have a person who is substantially impaired in certain manual acts such as communicating in written form,” he said, “then that should be enough of a showing that that person is substantially limited.”

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