A federal appeals court has reinstated discrimination charges filed by a  delivery driver who was forced to resign shortly after he told his employer he had shoulder pain.

Herman Nunies was a delivery driver for Honolulu-based HIE Holdings Inc., who said he had injured his shoulder and wanted to transfer to a part-time, less-physical warehouse job, according to Monday’s ruling by the 9th U.S. Circuit Court of Appeals in Honolulu in Herman N. Nunies v. HIE Holdings Inc.

He arranged to switch jobs with a warehouse employee. Mr. Nunies said he was told by his supervisor on June 14, 2013, the switch had been approved. On June 17, he notified his supervisor he was having shoulder pain. He was forced to resign on June 19, after being told it was because of budget cuts. On June 26, he saw a newspaper ad for his job.

Mr. Nunies filed suit against HIE in U.S. District Court in Honolulu, charging violation of the Americans with Disabilities Act and state law.  The district court granted HIE summary judgment dismissing the case.

A three-judge appeals court panel unanimously reinstated the discrimination charges. The ruling said under the ADA Amendments Act, a plaintiff must show he has been subjected to a prohibited action “because of an actual or perceived physical or mental impairment, whether or not the impairment limits or is perceived to limit a major life activity.”

Mr. Nunies “established a genuine issue of material fact as to whether HIE regarded him as having a disability,” said the ruling.

“Put simply, there is evidence in the record that everything was going swimmingly for Nunies in terms of transferring to the part-time position until he informed HIE that he had shoulder pain.

“Once HIE learned of the shoulder pain, it rescinded the offer, and forced Nunies to resign. Further, there is evidence that HIE misrepresented to Nunies that the position was no longer available because shortly thereafter the company was looking to hire someone for the same position,” said the ruling.

“From these facts, on summary judgment, it would be reasonable to infer that HIE forced Nunies to resign ‘because of’ his shoulder injury.”

“All in all, considering the broader definition of regarded-as disability under the ADAA, and viewing the evidence in the light most favorable to Nunies, the district court erred in granting of summary judgment to HIE on this issue,” said the decision.

The court also held the district court erred in concluding Mr. Nunies did not meet the physical definition of disability under the ADA, which requires showing he had a physical impairment that substantially limits one or more major life activities.

Mr. Nunies “did identify two major life activities: working and lifting,” said the ruling.  There is “at least a dispute about whether Nunies’ shoulder injury substantially limited those activities. 

“For example, in his deposition, Nunies testified that any time he lifted his arm above chest height — even without an object — he would experience a stabbing pain and numbness,” the ruling said.

The case was remanded for further proceedings.