Jorge Rosales v. Bellagio, LLC

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JORGE ROSALES,
Plaintiff-Appellant,
v.
BELLAGIO, LLC,
Defendant-Appellee.
No. 21-15465
D.C. No.
2:17-cv-03117-JCM-VCF
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Submitted June 27, 2022**
San Francisco, California
Before: S.R. THOMAS, SCHROEDER, and BUMATAY, Circuit Judges.
Jorge Rosales appeals the district court’s order granting summary judgment
in favor of Bellagio on Rosales’s Americans with Disability Act (ADA) claim for
FILED
JUN 29 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

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failure to accommodate his disability while employed as a room service food
server.
When his case was previously before this panel, we remanded for the district
court to reconsider the case under the correct standard. See Rosales v. Bellagio,
LLC, 811 F. App’x 438 (9th Cir. 2020). The district court again granted summary
judgment and Rosales again appeals.
The district court ruled that Rosales could not perform the essential
functions of the job. On appeal, Rosales contends that there are triable issues of
fact and that Bellagio did not establish that he could not perform the essential
functions of his employment.
While much is disputed, some things are clear. The room service job
arguably involves three types of duties. Hospitality duties require heavy lifting and
assembly of tables, equipment, and large quantities of food and beverage service
items such as plates and glasses. Rosales agrees that he is not able to do hospitality
work. He maintains, however, that such work is not an essential function, because
he can opt out of it.
A second category of duties involves assembly and delivery of ordinary
room service orders. To the extent these duties involve pushing a table from the
kitchen to the room, Rosales apparently can perform them. To the extent they
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involve lifting anything heavier than 36 pounds (the weight of an unloaded hot
box) or carrying anything heavier than a gallon of milk, Rosales cannot perform
the duties.
The third catch-all category, called “side work,” is composed of everything
else that needs to be done, ranging from cleaning the kitchen to restocking the
pantry. Rosales maintains that not all side work duties are essential and claims that
he could do enough of the side work duties that he could do the essential aspects of
side work. Rosales’s restrictions include, in addition to those on lifting and
carrying, no repetitive neck movements. Rosales conceded that working as a room
service worker requires a lot of neck movement, and that even if he was allowed to
do only light work, he might injure his neck. Thus, even if not all of the side work
tasks are essential, as he contends, the inability to do repetitive neck movements
prevents him from doing even those side work duties that he concedes are
essential. See Dark v. Curry Cnty., 451 F.3d 1078, 1089 (9th Cir. 2006) (“The
ADA does not require an employer to exempt an employee from performing
essential functions.”).
Given Rosales’ restrictions, he cannot perform enough of the side work tasks
that are essential to performing the job, and thus, is not a “qualified individual”
under the ADA.
AFFIRMED.
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