Lenora Humphrey-Baker v. United Airlines Inc. , 406 F. App'x 117 ( 2010 )

FILED
NOT FOR PUBLICATION DEC 14 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
LENORA HUMPHREY-BAKER, No. 08-57066
Plaintiff - Appellant, D.C. No. 5:07-cv-01093-VAP-JCR
v.
MEMORANDUM *
UNITED AIRLINES INC. and DOES 1 -
20,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, District Judge, Presiding
Argued and Submitted November 1, 2010
Pasadena, California
Before: PREGERSON, RIPPLE,** and GRABER, Circuit Judges.
Plaintiff Lenora Humphrey-Baker appeals from the summary judgment
entered in favor of Defendant United Airlines Inc. in this diversity case brought
under California’s Fair Employment and Housing Act ("FEHA"). Defendant
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Kenneth F. Ripple, Senior United States Circuit Judge for
the Seventh Circuit, sitting by designation.
terminated Plaintiff’s employment after concluding that her disability prevented
her from performing the essential tasks of her job as a customer service
representative, even with a reasonable accommodation. See Green v. State, 165
P.3d 118, 119 (Cal. 2007) (holding that the FEHA protects only employees with a
disability who can perform the essential duties of the job with reasonable
accommodation). On de novo review, Wallis v. J.R. Simplot Co., 26 F.3d 885, 888
(9th Cir. 1994), we reverse and remand.
Plaintiff testified that her essential duties as a customer service
representative included working at the ticket counter and the gate area only. She
claims that she received no training in how to work at the loading ramp or in the
baggage area, and only occasionally assisted in those areas. Defendant, however,
contends that all four potential job assignments were essential duties of a customer
service representative at the time of Plaintiff’s termination. This dispute creates a
genuine issue of material fact regarding which duties were essential to the
customer service representative position at the time of Plaintiff’s termination.
Furthermore, the district court erred by refusing to consider the May 8, 2006,
report from Dr. Thorardson, which released Plaintiff to work as of June 13, 2006,
with "no restrictions." If a person can perform the essential duties of a job without
an accommodation, a fortiori she can perform those duties with an accommodation.
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Viewed in the light most favorable to Plaintiff, the release creates a genuine issue
of material fact as to whether Plaintiff could perform the essential duties of her job
with a reasonable accommodation at the time of her termination.
Finally, the district court did not abuse its discretion by holding that Plaintiff
is judicially estopped from asserting that she can work without an accommodation.
Johnson v. Oregon, 141 F.3d 1361, 1368–69 (9th Cir. 1998). On remand, the trier
of fact must decide whether Plaintiff could perform the essential duties of her job
with a reasonable accommodation at the time of her termination.
REVERSED and REMANDED.
3