Sunny Anthony v. Trax International Corp. ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SUNNY ANTHONY, an Arizona No. 18-15662
resident,
Plaintiff-Appellant, D.C. No.
2:16-cv-02602-
v. ESW
TRAX INTERNATIONAL
CORPORATION, a Nevada OPINION
corporation,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Arizona
Eileen S. Willett, Magistrate Judge, Presiding
Argued and Submitted November 15, 2019
San Francisco, California
Filed April 17, 2020
Before: Kim McLane Wardlaw, William A. Fletcher,
and Richard Linn, * Circuit Judges.
Opinion by Judge Wardlaw
*
The Honorable Richard Linn, United States Circuit Judge for the
U.S. Court of Appeals for the Federal Circuit, sitting by designation.
2 ANTHONY V. TRAX INT’L
SUMMARY **
Employment Discrimination
The panel affirmed the district court’s grant of summary
judgment in favor of the employer in a disability
discrimination action under Title I of the Americans with
Disabilities Act.
After plaintiff filed suit, alleging that her employer
terminated her from her position as a technical writer
because of her disability, the employer learned that, contrary
to her representation on her employment application,
plaintiff lacked the bachelor’s degree required of all
technical writers under the employer’s government contract.
Under the two-step qualified individual test promulgated by
the EEOC and embedded in the court’s precedent, an
individual who fails to satisfy the job prerequisites cannot be
considered “qualified” under the ADA unless she shows that
the prerequisite is itself discriminatory in effect.
Disagreeing with the Seventh Circuit and agreeing with
other circuits, the panel held that a limitation on the use of
after-acquired evidence, applicable under McKennon v.
Nashville Banner Publishing Co., 513 U.S. 352 (1995), to an
employer attempting to excuse its discriminatory conduct
under the Age Discrimination in Employment Act, does not
extend to evidence used to show that an ADA plaintiff is not
a qualified individual, as required to establish a prima facie
case of disability discrimination. Further, the employer had
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
ANTHONY V. TRAX INT’L 3
no obligation to engage in the interactive process to identify
and implement reasonable accommodations.
COUNSEL
Michael Zoldan (argued), Zoldan Law Group, Scottsdale,
Arizona, for Plaintiff-Appellant.
Scott A. Hagen (argued) and D. Zachary Wiseman, Ray
Quinney & Nebeker P.C., Salt Lake City, Utah, for
Defendant-Appellee.
Barbara L. Sloan (argued), Attorney; Anne Noel Occhialino,
Acting Assistant General Counsel; Jennifer S. Goldstein,
Associate General Counsel; James L. Lee, Deputy General
Counsel; U.S. Equal Employment Opportunity Commission,
Office of General Counsel, Washington, D.C.; for Amicus
Curiae.
James R. Sigel (argued), Morrison & Foerster LLP, San
Francisco, California; Joseph R. Palmore and Bryan J.
Leitch, Morrison & Foerster LLP, Washington, D.C.; Daryl
L. Joseffer and Michael B. Schon, U.S. Chamber Litigation
Center, Washington, D.C.; for Amicus Curiae Chamber of
Commerce of the United States of America.
4 ANTHONY V. TRAX INT’L
OPINION
WARDLAW, Circuit Judge:
Sunny Anthony appeals the grant of summary judgment
in favor of TRAX International Corporation (TRAX) in her
action alleging disability discrimination under the
Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq.
(ADA). 1 The ADA prohibits discrimination against “a
qualified individual on the basis of disability.” Id. at
§ 12112(a). Here, TRAX terminated Anthony from her
position as a Technical Writer—a position that by virtue of
a third-party contract required a bachelor’s degree in
English, journalism, or a related field—allegedly due to an
inability or unwillingness to accommodate her disability.
TRAX discovered during the course of this litigation that
Anthony lacked the requisite degree. We must decide under
these circumstances whether such “after-acquired evidence”
that an employee does not satisfy the prerequisites for the
position, including educational background, renders the
employee ineligible for relief under the ADA.
I.
TRAX, a contractor for the Department of the Army,
hired Anthony as a “Technical Writer I” in April 2010.
Anthony had a history of post-traumatic stress disorder and
related anxiety and depression. Her condition worsened,
requiring her to miss periods of work. As a result, Anthony
applied for and obtained leave under the Family and Medical
Leave Act (FMLA) in April 2012. Anthony’s physician
1
Anthony does not appeal the dismissal of her claim for retaliation.
ANTHONY V. TRAX INT’L 5
estimated that her condition would likely continue until May
30, 2012.
On June 1, 2012, Anthony asked to work from home, but
TRAX denied her request. TRAX’s Benefits Coordinator
extended the time of her FMLA leave for thirty days, but
notified Anthony that she would be fired unless she provided
a “full work release,” a doctor’s clearance for return to work
with no restrictions, by the time her leave expired on July 26,
2012. Because Anthony never submitted a full work release,
TRAX terminated her employment effective July 30, 2012.
According to TRAX’s then-Manager of Human Resources,
Anthony would have been eligible for rehire in
administrative support positions that were open at the time.
Soon after she was fired, Anthony filed this suit for
disability discrimination under the ADA, alleging that
TRAX terminated her because of her disability and that it
failed to engage in the statutorily required interactive process
to find her a reasonable accommodation for employment.
During litigation of this action, TRAX learned that Anthony
lacked the bachelor’s degree required of all Technical
Writers, contrary to her representation on her employment
application. The bachelor’s degree prerequisite is not
subjective, unrelated to the job, or open to exception: under
TRAX’s government contract, it may bill for Technical
Writer work only if the employee in question has a
bachelor’s degree.
The parties cross-moved for summary judgment. The
district court entered judgment in favor of TRAX, reasoning
that, in light of the after-acquired evidence that Anthony
lacked the required bachelor’s degree when she was
terminated, she was not a “qualified individual” within the
protection of the ADA. The district court did not address
6 ANTHONY V. TRAX INT’L
Anthony’s argument that TRAX failed to engage in the
interactive process to identify reasonable accommodations.
II.
We have jurisdiction pursuant to 28 U.S.C. § 1291. “We
review the district court’s grant of summary judgment de
novo, viewing the evidence and drawing all reasonable
inferences in the light most favorable to the non-moving
party.” Cohen v. City of Culver City, 754 F.3d 690, 694 (9th
Cir. 2014) (citing Szajer v. City of Los Angeles, 632 F.3d
607, 610 (9th Cir. 2011)). “We must determine whether
there are any genuine issues of material fact and whether the
district court correctly applied the relevant substantive law.”
Id. (citing Del. Valley Surgical Supply Inc. v. Johnson &
Johnson, 523 F.3d 1116, 1119 (9th Cir. 2008)).
III.
A.
Title I of the ADA provides:
No covered entity shall discriminate against
a qualified individual on the basis of
disability in regard to job application
procedures, the hiring, advancement, or
discharge of employees, employee
compensation, job training, and other terms,
conditions, and privileges of employment.
42 U.S.C. § 12112(a). The text of § 12112(a) thus protects
only “qualified individuals” from employment disability
discrimination. Weyer v. Twentieth Century Fox Film Corp.,
198 F.3d 1104, 1112 (9th Cir. 2000); Id. at 1108 (“The plain
language of the [ADA] thus allows only those who are
ANTHONY V. TRAX INT’L 7
‘qualified individuals’ to bring suit.”). Accordingly,
Anthony carries the initial burden of establishing that she is
a qualified individual as part of her prima facie disability
discrimination case. Hutton v. Elf Atochem N. Am., Inc.,
273 F.3d 884, 891 (9th Cir. 2001); see Bates v. United
Parcel Serv., Inc., 511 F.3d 974, 988 (9th Cir. 2007) (en
banc) (“[U]nder the ADA, an employee bears the ultimate
burden of proving that [she] is . . . a qualified individual with
a disability . . . .” (internal quotation marks omitted)).
Section 12111(8) of the ADA explicitly defines a
“qualified individual” as “an individual who, with or without
reasonable accommodation, can perform the essential
functions of the employment position that such individual
holds or desires.” 42 U.S.C. § 12111(8).
However, the “Equal Employment Opportunity
Commission (‘EEOC’), the agency to which Congress
delegated authority to implement Title I of the ADA, has
promulgated a regulation expanding this definition.”
Johnson v. Bd. of Trustees of Boundary Cty. Sch. Dist. No.
101, 666 F.3d 561, 564–65 (9th Cir. 2011) (internal citations
omitted) (citing 56 Fed. Reg. 35,726, 35,735 (July 26,
1991)). The EEOC promulgated 29 C.F.R. § 1630.2(m) to
further elaborate upon the meaning of the term “qualified.”
That subsection sets forth a two-step inquiry for determining
whether the individual is qualified. We first determine
whether the individual satisfies the prerequisites of the job;
more specifically, whether “the individual satisfies the
requisite skill, experience, education and other job-related
requirements of the employment position such individual
holds or desires.” At step two, we determine whether, “with
or without reasonable accommodation,” the individual is
able to “perform the essential functions of such position.”
29 C.F.R. § 1630.2(m).
8 ANTHONY V. TRAX INT’L
The EEOC has also issued Interpretive Guidance on Title
I of the Americans with Disabilities Act that further
expounds on the definition of qualified individual. See
29 C.F.R. pt. 1630, app. to § 1630.2(m). At the first step,
this guidance asks us to “determine if the individual satisfies
the prerequisites for the position, such as possessing the
appropriate educational background, employment
experience, skills, licenses, etc.” Id. We then go on to step
two to “determine whether or not the individual can perform
the essential functions of the position held or desired, with
or without reasonable accommodation.” Id.
B.
At no time did Anthony satisfy the prerequisites step of
the qualified individual element of an ADA prima facie case;
it is undisputed that she never possessed the requisite
bachelor’s degree, and it is undisputed that, pursuant to
TRAX’s government contract, the bachelor’s degree was an
actual requirement of the Technical Writer position that
could not be satisfied by any functional equivalent.
However, Anthony, and the EEOC as amicus, argue that
because her lack of a bachelor’s degree was “after-acquired
evidence”—evidence discovered well after the
discriminatory adverse employment action—at most it
should be used to limit liability.
1.
Amicus EEOC perplexingly argues that we should
disregard its regulation and interpretive guidance and revert
to the plain language of 42 U.S.C. § 12111, which defines
“qualified individual” as one who can perform the essential
functions of the employment position such individual holds
or desires. According to the EEOC, 29 C.F.R. § 1630.2(m)
does not require all plaintiffs challenging disability-based
ANTHONY V. TRAX INT’L 9
discriminatory conduct to show they satisfy the job’s
prerequisites in order to bring suit under the ADA. It argues
that because Anthony’s lack of a bachelor’s degree was
irrelevant to the decision to terminate her employment,
Anthony can establish a prima-facie case of disability
discrimination and withstand summary judgment with
evidence that she can perform the essential job functions—
“the standard for qualification that Congress expressly set
forth in the statute.”
The EEOC is not seeking deference under Auer v.
Robbins, 519 U.S. 452 (1997), for the interpretation of
29 C.F.R. § 1630.2(m) that it advances in this litigation, see
Dkt. 47, and so we need not determine whether the
regulation is ambiguous. Likewise, we decline to determine
whether the statute is ambiguous or capable of an
interpretation in accord with the EEOC’s position. Instead,
as we must, we adhere to our precedent that has adopted the
job prerequisites inquiry described in the EEOC’s
regulations as a mandatory step in the “qualified individual”
determination.
In Bates, we explained that, under the ADA and the
EEOC’s regulations, “[q]ualification for a position is a two-
step inquiry,” beginning with “whether the individual
satisfies the ‘requisite skill, experience, education and other
job-related requirements’ of the position.” 511 F.3d at 990
(quoting 29 C.F.R. § 1630.2(m)). The package-car driver
position at issue in Bates “require[d] an applicant to meet
[the employer’s] threshold seniority requirements . . . ,
complete an application, be at least twenty-one years of age,
possess a valid driver’s license, and have a clean driving
record by [the employer’s] local standards.” Id. at 990.
Applying the two-step qualified individual test, we first
ensured that the plaintiff met each of these prerequisites
10 ANTHONY V. TRAX INT’L
before even considering whether the plaintiff could perform
the job’s essential functions. Id.
We reaffirmed our adoption of the “two-step
qualification inquiry” in Johnson: “We have previously
adopted the EEOC’s two-step inquiry as the test for whether
an individual is qualified within the meaning of the ADA.”
666 F.3d at 565 (citing Bates, 511 F.3d at 990); see also
Samper v. Providence St. Vincent Med. Ctr., 675 F.3d 1233,
1237 (9th Cir. 2012) (applying the EEOC’s two-step test as
adopted in Bates). 2 Thus, “an individual who fails to satisfy
the job prerequisites cannot be considered ‘qualified’ within
the meaning of the ADA unless she shows that the
prerequisite is itself discriminatory in effect.” Johnson,
666 F.3d at 567.
Anthony cites no authority interpreting the EEOC’s
regulations differently.
2.
In a related argument, Anthony contends that courts
applying the two-step qualified individual test are limited to
the facts known to the employer at the time of the challenged
employment decision. As support, she takes out of context
2
Other circuits have likewise adopted the EEOC’s two-step inquiry
as the test to determine whether a person is a “qualified individual”
within the meaning of the ADA. See Criado v. IBM Corp., 145 F.3d 437,
443 (1st Cir. 1998); McBride v. BIC Consumer Prods. Mfg. Co.,
583 F.3d 92, 98 (2d. Cir. 2009); Deane v. Pocono Med. Ctr., 142 F.3d
138, 145 (3d Cir. 1998) (en banc); Foreman v. Babcock & Wilcox Co.,
117 F.3d 800, 810 n.14 (5th Cir. 1997); Branham v. Snow, 392 F.3d 896,
904 (7th Cir. 2004); Benson v. Nw. Airlines, Inc., 62 F.3d 1108, 1111–
12 (8th Cir. 1995); Tate v. Farmland Indus., Inc., 268 F.3d 989, 992–93
(10th Cir. 2001); Jarvela v. Crete Carrier Corp., 776 F.3d 822, 828–29
(11th Cir. 2015).
ANTHONY V. TRAX INT’L 11
a portion of the interpretive guidance in 29 C.F.R.
§ 1630(m).
The EEOC has issued guidance as to when the
determination as to whether an individual is qualified is to
be made:
The determination of whether an individual
with a disability is qualified is to be made at
the time of the employment decision. This
determination should be based on the
capabilities of the individual with a disability
at the time of the employment decision, and
should not be based on speculation that the
employee may become unable in the future or
may cause increased health insurance
premiums or workers compensation costs.
29 C.F.R. pt. 1630, app. to § 1630.2(m) (emphasis added).
This guidance clarifies that an employee must show she was
qualified at the time of the adverse employment action,
rather than at some earlier or later time. It does not limit the
qualification determination to the facts known to the
employer at the time of the challenged employment action.
And for good reason—an employer’s subjective knowledge
has no bearing on the “skill, experience, education and other
job-related [qualifications],” 29 C.F.R. § 1630.2(m), that a
person in fact possesses.
3.
Anthony argues that McKennon v. Nashville Banner
Publishing Co., 513 U.S. 352 (1995), precludes the use of
after-acquired evidence to demonstrate that she is
unqualified for failing to satisfy the prerequisites prong. But
McKennon was a case in which the defendant conceded it
12 ANTHONY V. TRAX INT’L
had unlawfully discriminated against the plaintiff on the
basis of age and was attempting to use after-acquired
evidence of wrongdoing to assert that the plaintiff would
have been fired anyway and to excuse its discriminatory
conduct. 513 U.S. at 355–56. This is what the Supreme
Court held impermissible, even as it allowed the evidence as
relevant to the remedies available to the plaintiff. Id. at 356,
360.
In McKennon, the plaintiff sued for discrimination under
the Age Discrimination in Employment Act (ADEA), which
makes it unlawful “to discharge any individual . . . because
of [her] age,” 29 U.S.C. § 623(a)(1). McKennon held that
permitting “after-acquired evidence of wrongdoing that
would have resulted in termination [to] operate[], in every
instance, to bar all relief for an earlier violation of the
[ADEA]” would be contrary to the deterrence and
compensation objectives behind the ADEA and other
statutes within that statutory scheme. McKennon, 513 U.S.
at 358. Although the ADEA and the ADA are part of the
same “statutory scheme to protect employees in the
workplace,” McKennon, 513 U.S. at 357, the ADA expressly
limits its protection to qualified individuals. The ADEA, in
contrast, has no qualified individual element. Compare
42 U.S.C. § 12112(a) (“No covered entity shall discriminate
against a qualified individual on the basis of disability. . . .”
(emphasis added)) with 29 U.S.C. § 623(a) (“It shall be
unlawful for an employer . . . to . . . discriminate against any
individual . . . .” (emphasis added)).
Moreover, the employer in McKennon did not attempt to
use after-acquired evidence to rebut the plaintiff’s prima
facie case. It instead argued that after-acquired evidence
could provide a retroactive, legitimate justification for the
employee’s admittedly discriminatory discharge. Id. at 355–
 ANTHONY V. TRAX INT’L 13
56. The Supreme Court disagreed that after-acquired
evidence of a nondiscriminatory basis for firing could be
used to avoid liability. The Court reasoned that the employer
“could not have been motivated by knowledge it did not
have” and therefore “[could not] now claim that the
employee was fired for the nondiscriminatory reason” that it
discovered only after-the-fact. Id. at 360. It defies logic to
say that an employee was terminated for a reason that the
employer was not even aware of at the time.
The same is not true of the qualification inquiry. An
employer’s ignorance cannot create a credential where there
is none. Here, Anthony lacked a bachelor’s degree at the
time she was terminated regardless of whether TRAX was
aware of this fact. Furthermore, under the burden-shifting
standard applicable to ADA claims at summary judgment,
we reach the question addressed in McKennon—whether
there was a legitimate, nondiscriminatory reason for the
plaintiff’s discharge—only after Anthony establishes her
prima facie case, including the qualified individual element.
See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973); Snead v. Metro. Prop. & Cas. Ins. Co., 237 F.3d
1080, 1093 (9th Cir. 2001) (applying the McDonnell
Douglas framework to ADA discrimination cases).
Consistent with McKennon, we previously held that,
“[a]lthough it is questionable whether [an employer] could
justify [a challenged employment decision] . . . based on
evidence obtained after its decision [was made], the
admissibility of post-decision evidence is not necessarily
forbidden for all purposes.” Mantolete v. Bolger, 767 F.2d
1416, 1424 (9th Cir. 1985) (citation omitted). For example,
a defendant employer sued under the Rehabilitation Act may
use after-acquired evidence “to rebut [an applicant’s] claim
that she was qualified for the position, but . . . [not] to
14 ANTHONY V. TRAX INT’L
enlarge the basis upon which the employer relied to reject
the [applicant] at the time that decision was made.” Id. It
follows that an employer may likewise use after-acquired
evidence to rebut an employee’s claim that she is a qualified
individual under the ADA. See Zukle v. Regents of Univ. of
Cal., 166 F.3d 1041, 1045 n.11 (9th Cir. 1999) (“[C]ourts
routinely look to Rehabilitation Act case law to interpret the
rights and obligations created by the ADA.”); Collings v.
Longview Fibre Co., 63 F.3d 828, 832 n.3 (9th Cir. 1995)
(“The legislative history of the ADA indicates that Congress
intended judicial interpretation of the Rehabilitation Act be
incorporated by reference when interpreting the ADA.”).
Notably, our holding in Mantolete is consistent with that
later reached by the Supreme Court in McKennon: both
opinions conclude that after-acquired evidence of an
employee’s wrongdoing cannot be used to establish an
alternative motivation for a challenged employment action.
See McKennon, 513 U.S. at 360.
In sum, McKennon held that after-acquired evidence
cannot establish a superseding, non-discriminatory
justification for an employer’s challenged actions. But as we
held in Mantolete, after-acquired evidence remains available
for other purposes, including to show that an individual is
not qualified under the ADA.
i.
The limited out-of-circuit authority on the breadth of the
Supreme Court’s holding in McKennon is either in accord or
unpersuasive.
Rooney v. Koch Air, LLC, 410 F.3d 376 (7th Cir. 2005),
on which amicus EEOC relies, is unpersuasive. In Rooney,
the plaintiff alleged that his employer had constructively
discharged him because of his disability, in violation of the
ANTHONY V. TRAX INT’L 15
ADA. Id. at 378. The defendant learned during discovery
that the plaintiff did not have a valid driver’s license, which
necessarily meant that he could not satisfy all of the
prerequisites of his job. Id. at 382. The Seventh Circuit did
not “place any weight” on this after-acquired evidence in
concluding that Rooney was not a qualified individual. Id.
at 378, 382. According to the Seventh Circuit, McKennon
held that “after-acquired evidence . . . does not bar all relief,”
and the Seventh Circuit could “see no distinction for this
purpose between an age discrimination claim like the one in
McKennon and an ADA claim.” Id. at 382. This conclusion
overlooks the distinction between the use of after-acquired
evidence to negate an element of a plaintiff’s prima facie
case and its use to establish a nondiscriminatory motive for
the adverse employment action. It is also in some tension
with other Seventh Circuit precedent. See Teahan v. Metro-
North Commuter R.R. Co., 80 F.3d 50, 55 (7th Cir. 1996)
(holding that “the rule announced in McKennon ha[d] no
application” in a Rehabilitation Act case in which the
employer offered after-acquired evidence not “to present an
alternative, ‘legitimate’ motive for dismissing [an
employee]” but to show why he was not otherwise
qualified).
Bowers v. National Collegiate Athletic Association,
475 F.3d 524 (3d Cir. 2007), another out-of-circuit case on
which Anthony relies, provides no support for her position.
Bowers addressed whether the National Collegiate Athletic
Association (NCAA) and two universities discriminated
against a high school student because of his learning
disability by deeming him a “nonqualifer”—meaning he did
not meet the NCAA’s initial eligibility requirements—and
ceasing recruitment efforts. Id. at 530, 536. During the
discovery process, the defendants learned that Bowers had
abused drugs. They moved for summary judgment on the
16 ANTHONY V. TRAX INT’L
basis that his drug abuse rendered him a nonqualifier and that
he therefore was not a qualified individual under the ADA.
Id. at 533–34.
The Third Circuit held that the evidence of drug abuse
did not render Bowers an unqualified individual not because
the evidence of his drug use was acquired after the alleged
discriminatory action but because the drug use itself
occurred after, and as a result of, the alleged discriminatory
action. Id. at 537. At the time the discriminatory action
occurred there was no evidence of drug use; it was only after
Bowers was deemed ineligible for athletic recruiting that
Bowers plunged into addiction and depression. His
subsequent drug use had no bearing on whether Bowers was
qualified at the time the athletic recruiters deemed him
ineligible, or whether they did so on a discriminatory basis.
Separately, the Third Circuit reasoned that, under
McKennon, the defendants could not claim “that Bowers was
deemed a nonqualifier because of his drug abuse.” Id. Here,
in contrast, Anthony lacked a bachelor’s degree when the
alleged discrimination occurred, and TRAX does not argue
that this was the reason for her termination.
In circumstances far more similar to Anthony’s, the
Third Circuit deemed McKennon inapplicable. See
McNemar v. Disney Store, Inc., 91 F.3d 610 (3d Cir. 1996),
abrogated on other grounds by Cleveland v. Policy Mgmt.
Sys. Corp., 526 U.S. 795 (1999). In McNemar, the plaintiff
sued his employer under the ADA, alleging that he was fired
because of a disability. Id. at 616. After he was fired, the
plaintiff applied for state and federal disability benefits. Id.
at 615. In those applications, the plaintiff represented under
penalty of perjury that he became totally disabled and unable
to work on a date falling at least five weeks before he was
fired. Id. In other words, the plaintiff admitted that he was
ANTHONY V. TRAX INT’L 17
not a “qualified individual” at the time he was terminated.
Id. at 618 (“[A] person unable to work is not intended to be,
and is not, covered by the ADA.”). The district court granted
summary judgment in favor of the employer, reasoning that
the plaintiff was judicially estopped from contending that he
is a qualified individual under the ADA in light of these
representations. Id. at 616, 618–19.
On appeal, amicus EEOC raised the precise argument it
asserts in this case: that McNemar’s disability applications
were “after-acquired evidence” with “no bearing on the
prima facie issue of McNemar’s status as a qualified
individual with a disability.” Id. at 620–21. The Third
Circuit rebuffed the EEOC’s argument: “[T]he EEOC wants
to mix apples—a plaintiff’s prima facie case—with
oranges—a defendant’s non-discriminatory-reason.” Id.
According to the Third Circuit, McKennon’s holding did not
apply to the plaintiff’s prima facie case. Id. “[T]he EEOC’s
assertion that ‘[a] plaintiff’s claim cannot be defeated by an
issue of qualifications that has nothing to do with the
employer’s motivation for the adverse action’ becomes
irrelevant . . . because that assertion has to do with [the
employer’s] putative pretext for firing McNemar, which is
not a proper concern for the court unless McNemar first has
established a prima facie case that he was qualified for the
job.” Id. (footnote omitted).
The Fifth and Sixth Circuits have similarly interpreted
McKennon as precluding only the use of after-acquired
evidence to show a legitimate, nondiscriminatory basis for
the adverse action.
In McConathy v. Dr. Pepper/Seven Up Corporation, the
Fifth Circuit reviewed the dismissal of an employee’s ADA
claim “on the basis of judicial estoppel, in that the
information given in [her social security] application was
18 ANTHONY V. TRAX INT’L
inconsistent with her claims.” 131 F.3d 558, 561 (5th Cir.
1998) (per curiam). The plaintiff argued that her social
security application was after-acquired evidence that could
not be used to bar relief. Id. at 563. The Fifth Circuit
disagreed, reasoning that the after-acquired evidence was
being used “in relation to [her] job qualifications, a matter
which has nothing to do with the motivation behind her
employer’s action.” Id.
The Sixth Circuit made a similar distinction in the
context of a discrimination claim under the FMLA,
29 U.S.C. § 2612. Bauer v. Varity Dayton-Walther Corp.,
118 F.3d 1109, 1112 (6th Cir. 1997). In Bauer, the Sixth
Circuit held that McKennon permits relying on after-
acquired evidence to determine that the plaintiff did not have
a “serious health condition,” and that he therefore did not
qualify for protection under the FMLA. Id. According to
the Sixth Circuit, McKennon held that after-acquired
evidence was irrelevant for the purpose of establishing “the
employer’s motive for the discharge.” Id. Whether a
plaintiff can “establish the objective existence of a serious
health condition” is unrelated to motive. Id. Therefore,
McKennon had no application. Id. McKennon likewise has
no application to the objective qualified individual inquiry,
a matter which has nothing to do with TRAX’s motivation
for firing her.
ii.
Allowing employers to use after-acquired evidence to
show that an ADA plaintiff is not a qualified individual will
not usher in the parade of horribles Anthony conjures.
Anthony argues the rule we adopt here will lead employers
to scour a plaintiff’s employment history for even the most
minor of missing qualifications in an effort to avoid liability
for discrimination. But employers sued for discrimination
ANTHONY V. TRAX INT’L 19
already have reason to hunt for such disqualifiers since, at
the very least, McKennon permits the use of after-acquired
evidence to limit damages. See McKennon, 513 U.S. at 360–
63. And employers are unlikely to purposefully expose
themselves to significant liability on the off-chance that they
might discover some obscure, missing qualification during
the already costly discovery process. Moreover, employers
will not be able to invent new requirements to avoid liability,
since the employer must actually require the ostensibly
missing qualification at the time of the allegedly
discriminatory action. 3 In contrast, accepting Anthony’s
argument would extend coverage to those who do not in fact
satisfy a job’s prerequisites—including those who
successfully deceived their employer as to their
qualifications. Such an outcome would be at odds with
Congress’s express decision to limit the ADA’s protections
to qualified individuals.
Finally, to the extent the EEOC wants us to disregard the
prerequisites step of its two-step inquiry for determining
who is a qualified individual under the ADA, it could
reconsider its own implementing regulations and
interpretive guidance that elaborated upon the statutory
definition of “qualified individual.”
3
As previously mentioned, Anthony does not dispute that a
bachelor’s degree was an actual, mandatory requirement for the
Technical Writer I position. We need not and do not decide the extent
to which McKennon might apply to circumstances in which an ostensible
job prerequisite is not regularly enforced, or a technical requirement like
a degree could be satisfied by the functional equivalent in experience.
20 ANTHONY V. TRAX INT’L
C.
Anthony separately argues that the district court erred in
granting summary judgment because there is a genuine
dispute as to whether TRAX engaged in good faith in the
interactive process. We disagree.
“The ADA prohibits employers from discriminating
against a disabled employee by ‘not making reasonable
accommodations to the known physical or mental limitations
of an otherwise qualified individual with a disability who is
an applicant or employee, unless such covered entity can
demonstrate that the accommodation would impose an
undue hardship on the operation of the business of such
covered entity.’” Barnett v. U.S. Air, Inc., 228 F.3d 1105,
1110–11 (9th Cir. 2000) (en banc) (footnote omitted)
(quoting 42 U.S.C. § 12112(b)(5)(A)), vacated on other
grounds sub nom. US Airways, Inc. v. Barnett, 535 U.S. 391
(2002). From this, we have held that an employer has a
mandatory obligation “to engage in an interactive process
with employees in order to identify and implement
appropriate reasonable accommodations,” which can
include reassignment. Id. at 1111; Dark v. Curry Cty.,
451 F.3d 1078, 1088 (9th Cir. 2006). “[A]n employer cannot
prevail at the summary judgment stage if there is a genuine
dispute as to whether the employer engaged in good faith in
the interactive process.” Barnett, 228 F.3d at 1116.
Importantly, however, an employer is obligated to
engage in the interactive process only if the individual is
“otherwise qualified.” Id. at 1110–11; 42 U.S.C.
§ 12112(b)(5)(A). Anthony argues that she is “otherwise
qualified,” despite her failure to meet the prerequisites for
the Technical Writer position, because she met the
requirements for available reassignment positions.
ANTHONY V. TRAX INT’L 21
We have held that an employee is “otherwise qualified”
if he could perform the essential functions of his job once
provided the reasonable accommodation of reassignment.
See Barnett, 228 F.3d at 1111. We need not “consider
reasonable accommodation in determining whether [an
employee] satisfied the job prerequisites,” however.
Johnson, 666 F.3d at 565 (emphasis added); 29 C.F.R. pt.
1630, app. to § 1630.9 (“[T]he obligation to make reasonable
accommodation is owed only to an individual with a
disability who . . . satisfies all the skill, experience,
education and other job-related selection criteria.”). Thus,
“unless a disabled individual independently satisfies the job
prerequisites, she is not ‘otherwise qualified,’ and the
employer is not obligated to furnish any reasonable
accommodation.” Johnson, 666 F.3d at 565–66.
It is undisputed that Anthony did not satisfy the
prerequisites for the Technical Writer position. Because
Anthony needed to satisfy those requirements without
reasonable accommodation, whether she met the job
prerequisites for available reassignment positions is
irrelevant. Accordingly, she is not “otherwise qualified,”
and TRAX was not obligated to engage in the interactive
process.
IV.
McKennon’s limitation on the use of after-acquired
evidence does not extend to evidence used to show an ADA
plaintiff is not a qualified individual. Under the two-step
qualified individual test promulgated by the EEOC and
embedded in our precedent, “an individual who fails to
satisfy the job prerequisites cannot be considered ‘qualified’
within the meaning of the ADA unless she shows that the
prerequisite is itself discriminatory in effect.” Johnson, 666
F.3d at 567. Because Anthony did not have the requisite
22 ANTHONY V. TRAX INT’L
bachelor’s degree at the time she was terminated, she was
not qualified within the meaning of the ADA, and TRAX
had no obligation to engage in the interactive process.
AFFIRMED.