Dennis Henneman v. Kitsap County ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 29 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DENNIS HENNEMAN, No. 18-35691
Plaintiff-Appellant, D.C. No. 3:17-cv-05066-RBL
v.
MEMORANDUM*
KITSAP COUNTY, a Municipal
corporation,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Argued and Submitted July 11, 2019
Seattle, Washington
Before: BOGGS,** BERZON, and WATFORD, Circuit Judges.
Dennis Henneman appeals from the district court’s grant of summary
judgment for Henneman’s former employer, Kitsap County. We affirm.
1. The record does not support Henneman’s argument that Kitsap County
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Danny J. Boggs, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
improperly failed, under the Americans with Disabilities Act (“ADA) or the
Washington State Law Against Discrimination (“WLAD”), to accommodate the
leave request that Henneman made on December 23, 2014. Employers have “an
affirmative obligation” to accommodate a disabled employee by “tak[ing] those
steps reasonably necessary to enable the employee to perform his or her job.” Doe
v. Boeing, 121 Wash. 2d 8, 18 (Wash. 1993). Here, the County fully
accommodated Henneman. Rather than insist that he return to work, as Henneman
alleges, the County told Henneman that he could ask his psychologist to request
additional leave; Henneman did, but he only asked for a short extension. When
Henneman returned to work, he did so with the express permission of his
psychologist and with a “light duty” accommodation.1
2. The district court also correctly granted summary judgment on
Henneman’s accommodation claim as that claim relates to the County’s decision
not to reinstate him. “[T]he duty to accommodate is a continuing duty that is not
exhausted by one effort.” Humphrey v. Mem’l Hosps. Ass’n, 239 F.3d 1128, 1138
(9th Cir. 2001) (citation and internal quotation marks omitted). But here, as
discussed, the County did accommodate Henneman, until he requested that the
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Henneman argues that the light-duty work assigned to him was
inappropriate because he might have needed to respond to an emergency, but he
offers no evidence that he actually had to do so, or that the possibility that he might
someday have to do so affected his ability to do his assigned tasks.
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County reinstate him. By that time, however, Hennaman had already submitted his
retirement notice, and the County had accepted it. Reinstating Henneman would
have required the County “to alter the fundamental nature of the job” to
accommodate him. Pulcino v. Fed. Express, 141 Wash. 2d 629, 644 (Wash. 2000),
overruled in part on other grounds by McClarty v. Totem Elec., 157 Wash. 2d 214
(2006). If reinstated, Henneman could have retired or resigned again under similar
circumstances. As reliability, stability, and trustworthiness are basic job
requirements for corrections officers, accommodation by reinstatement after
voluntary retirement was not required by the ADA or the WLAD.
3. Henneman’s argument that the district court erred in granting summary
judgment on his discrimination claim also falls short.
Summary judgment on a discrimination claim under the WLAD is
appropriate if no “reasonable judge or jury could find [the employee’s] disability
was a substantial factor motivating [the employer’s] adverse actions.” Riehl v.
Foodmaker, 152 Wash. 2d 138, 149 (Wash. 2004) (emphasis omitted), abrogated
in part on other grounds by Mikkelsen v. Pub. Util. Dist. No. 1 of Kittitas Cty., 189
Wash. 2d 516 (2017) (en banc). Henneman did not provide direct evidence of
discrimination, so the three-part McDonnell Douglas framework governs his
discrimination claim. See Scrivener v. Clark Coll., 181 Wash. 2d 439, 446 (Wash.
2014).
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We conclude that Henneman failed to meet his burden at the third step of
McDonnell Douglas—“to produce sufficient evidence that Defendant's alleged
nondiscriminatory reason for [the employment action] was a pretext.” Id. at 446
(quoting Hume v. Am. Disposal Co., 124 Wash. 2d 656, 667 (Wash. 1994)). The
County’s alleged nondiscriminatory reason for not reinstating Henneman was that
it could no longer be certain of Henneman’s dedication to his job after he had
presented what appeared to his supervisors to be his considered decision to retire.
Henneman’s only evidence that this was pretext are his supervisors’ statements
voicing this concern, combined with their knowledge of his recent mental-health
issues. Henneman does not provide comparator evidence showing that the County
reinstated non-disabled employees who had retired or resigned. See Mikkelsen, 189
Wash. 2d at 520, 526–32 (noting that comparator evidence is not required but does
have evidentiary force). And his supervisors’ statements, on their face and given
the circumstances, expressed their valid concerns about Henneman’s resolve. See
Riehl, 152 Wash. 2d at 150-153 (noting a variety of circumstantial evidence
supporting a discrimination claim).
4. The district court correctly granted summary judgment on Henneman’s
retaliation claim. Henneman alleges that the County retaliated against him when it
confiscated his weapon and sent him home and when it refused to reinstate him.
Neither allegation succeeds. Although both of the County’s actions could possibly
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qualify as adverse employment actions, see Jin Zhu v. N. Cent. Educ. Serv. Dist.-
ESD 171, 189 Wash. 2d 607, 613 (Wash. 2017) (holding that refusing to hire gives
rise to a retaliation claim under the WLAD); McAlindin, 192 F.3d at 1238–39
(determining that actions such as refusing to allow an employee to attend a training
session or reprimanding an employee are adverse employment actions), Henneman
provides no evidence “showing that retaliation was a substantial factor motivating”
Kitsap County’s actions, Allison v. Hous. Auth., 118 Wash. 2d 79, 96 (Wash.
1991).
AFFIRMED.
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FILED
Dennis Henneman v. Kitsap County, 18-35691
AUG 29 2019
BERZON, Circuit Judge, dissenting in part: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I concur in the memorandum disposition except with respect to a portion of
Henneman’s accommodation claim and his discrimination claim. Because of errors
made by the district court, I believe the correct course would be to reverse the
district court’s decision on those issues, which would still leave other questions to
be resolved.
1. To the extent that Henneman’s accommodation claim relates to the
County’s decision not to rescind his retirement or reinstate him, I believe the
district court incorrectly granted summary judgment when it found Henneman’s
request per se unreasonable. Only “certain types of requests [for accommodation]
have been found unreasonable as a matter of law.” Pulcino v. Fed. Express, 141
Wash. 2d 629, 644 (Wash. 2000), overruled in part on other grounds by McClarty
v. Totem Elec., 157 Wash. 2d 214 (2006). While unusual, I do not think that
Henneman’s request was unreasonable as a matter of law. Hennaman was still
employed by the County when he made his accommodation request, so the County
could have accommodated him by “mak[ing] special adjustments to” its typical
rescission or retirement policies. McAlindin v. San Diego, 192 F.3d 1226, 1237
(9th Cir. 1999), opinion amended on denial of reh’g, 201 F.3d 1211 (9th Cir.
2000). The County could have allowed Henneman to rescind his retirement and
1
remain in his position; it could also have offered to consider him as a new job
applicant—something the County never appears to have done—perhaps after an
additional leave.1 See Smith v. Clark Cty. Sch. Dist., 727 F.3d 950, 959 (9th Cir.
2013) (explaining that a leave may be a reasonable accommodation because “the
nature of an individual’s disability may change over time” (citation and quotation
marks omitted)). Accommodating Henneman in such a way once would in no way
require the County, as it maintains, to do so repeatedly, should Henneman retire or
resign again under similar circumstances.
2. I also believe the district court was too quick to grant summary judgment
on Henneman’s discrimination claim. As the majority notes, Henneman’s only
evidence that his disability “was a substantial factor motivating” the County’s
decision not to reinstate him are statements made by his supervisors about his
commitment. Riehl v. Foodmaker, 152 Wash. 2d 138, 149 (Wash. 2004),
abrogated in part on other grounds by Mikkelsen v. Pub. Util. Dist. No. 1 of
Kittitas Cty., 189 Wash. 2d 516 (2017) (en banc). But those statements about his
dedication were made because of Henneman’s actions surrounding his retirement,
actions that Henneman argues the County knew to be the result of his depression.
He had previously requested an accommodation from the County, and he
1
Henneman’s psychologist initially suggested that Henneman would be
“likely to experience incapacitation for three-to-six months,” but Henneman
returned to work within three months.
2
mentioned his depression in a letter he sent the County requesting reinstatement.
The County’s concerns over his trustworthiness might therefore reflect a
discomfort with employing a corrections officer suffering from the manifestation
of depressive illness.
3. On remand, other issues pertinent to Henneman’s claims would remain
open—for example, whether, with or without an accommodation, Henneman
remained qualified for employment following his retirement, or whether
accommodating Henneman would place an undue burden on Kitsap County. See
Humphrey v. Mem’l Hosps. Ass’n, 239 F.3d 1128, 1135 (9th Cir. 2001); Pulcino,
141 Wash. 2d at 643–44. I express no opinion as to whether Henneman can
succeed as to those issues, as they were not raised in the County’s summary
judgment motion. As to the district court’s rulings on the reinstatement
accommodation and the discrimination issue, however, I respectfully dissent.
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