Jodie Kelley v. amazon.com ( 2016 )

FILED
NOT FOR PUBLICATION JUN 13 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JODIE M. KELLEY, No. 13-36114
Plaintiff - Appellant, D.C. No. 2:12-cv-05132-TOR
v. MEMORANDUM*
AMAZON.COM, INC., a Delaware
corporation; AMZN WACS, INC,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of Washington
Thomas O. Rice, Chief District Judge, Presiding
Argued and Submitted April 7, 2016
Seattle, Washington
Before: GILMAN,** RAWLINSON, and CALLAHAN, Circuit Judges.
In 2006, Jodie M. Kelley joined AMZN WACS, Inc., a subsidiary of
Amazon.com, Inc. (collectively, Amazon) as a Customer Service Associate (CSA)
in Kennewick, Washington. CSAs are responsible for fielding questions from
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Ronald Lee Gilman, Senior Circuit Judge for the United
States Court of Appeals for the Sixth Circuit, sitting by designation.
Amazon’s customers and resolving their complaints. During her employment with
Amazon, Kelley was afflicted with endometriosis and migraine headaches, which
produced numerous painful symptoms. Kelley took intermittent periods of medical
leave as a result of these conditions. Her job performance began to deteriorate in
2010. This was measured by her Expressed Dissatisfaction Rate (EDR), which
was derived from customer surveys. After several unsuccessful attempts to remedy
her deficiencies, Amazon fired Kelley in March 2011.
Kelley subsequently filed the instant action against Amazon in the district
court, alleging that her termination violated the Americans with Disabilities Act
(ADA), the Washington Law Against Discrimination (WLAD), and the Family and
Medical Leave Act (FMLA). In November 2013, the district court granted
summary judgment in favor of Amazon. This appeal followed.
Kelley first raises failure-to-accommodate claims under both the ADA and
the WLAD. Among other requirements, success on such claims requires a plaintiff
to prove that (1) she gave notice to her employer concerning her disability and its
corresponding limitations, and (2) she is qualified to perform the essential
functions of the job with or without reasonable accommodation. Humphrey v.
Mem’l Hosps. Ass’n, 239 F.3d 1128, 1133–37 (9th Cir. 2001); Riehl v. Foodmaker,
Inc., 94 P.3d 930, 934 (Wash. 2004) (en banc).
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Even assuming without deciding that Kelley raised a jury issue regarding the
notice element—which would normally trigger an “interactive process” to identify
potential accommodations, see Humphrey, 239 F.3d at 1137—her failure-to-
accommodate claims still fail because she did not raise a jury issue regarding
whether she was qualified. “A job function may be considered essential . . . [if] the
reason the position exists is to perform that function.” 29 C.F.R.
§ 1630.2(n)(2)–(2)(i). That customer service is the reason for the existence of the
CSA position is obvious. And the EDR is simply an objective measure that
Amazon used to evaluate whether CSAs were providing adequate customer
service.
The record demonstrates that Kelley failed to create a jury issue regarding
whether she can deliver adequate customer service with or without a reasonable
accommodation. Over the course of at least eight months, she regularly failed to
meet the EDR standard required for her team even after repeated attempts by
Amazon personnel to improve her performance.
A reasonable trier of fact has no basis to conclude that any of the
accommodations suggested by Kelley are reasonable. One suggestion was to
transfer her to another CSA position. But the record does not indicate the
availability of any positions for which Kelley was qualified, either when she was
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fired or “within a reasonable period” thereafter. See Dark v. Curry County, 451
F.3d 1078, 1089–90 (9th Cir. 2006).
Another suggestion was that Kelley could have been granted a leave of
absence. But Kelley produced no medical evidence indicating that the impairments
preventing her from performing the essential functions of a CSA are treatable. See
id. at 1088; Humphrey, 239 F.3d at 1131. The opinion of Kelley’s doctor does not
include the possibility that her “tone of voice,” which Kelley argues is responsible
for her performance deficiencies, could be remedied through medical treatment
that would require a leave of absence.
Nor did Kelley produce evidence that she was receiving treatment for the
symptoms that prevented her from performing the essential functions of her job.
See Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1247 (9th Cir. 1999). Kelley
argues for the first time in her reply brief that a leave of absence might have
remedied her tonal shortcomings by allowing her an opportunity for another round
of hormone shots, but there is no indication in the record that her prior treatment
required a leave of absence. Any argument that Kelley could perform the essential
functions of a CSA after a leave of absence is therefore speculative rather than
plausible. See Humphrey, 239 F.3d at 1136.
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Kelley’s final suggestion is that Amazon could have consulted with her
doctor. Although this is a potential method of discovering a reasonable
accommodation, it is not a reasonable accommodation in and of itself.
Kelley’s disparate-treatment claims also fail for the reasons identified above
because a necessary element of such claims requires that the plaintiff be qualified
to do her job. See Humphrey, 239 F.3d at 1133; Riehl, 94 P.3d at 936.
Finally, Kelley argues that a genuine dispute of material fact exists regarding
her FMLA-interference claim. Proximity between the use of FMLA leave and an
employee’s discharge can be sufficient to send an FMLA-interference claim to a
jury under some circumstances. See Manatt v. Bank of Am., NA, 339 F.3d 792, 802
(9th Cir. 2003). But Kelley’s extensive and freely granted utilization of FMLA
leave on an average of eight days per month during 2009 and 2010 belies any
reasonable inference that her five uses of leave in the month prior to her discharge
impacted Amazon’s decision to fire her. See Kimbro v. Atl. Richfield Co., 889 F.2d
869, 878 (9th Cir. 1989).
For all of the above reasons, WE AFFIRM.
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