Antonio Alamillo v. Bnsf Railway Co. ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANTONIO ALAMILLO, No. 15-56091
Plaintiff-Appellant,
D.C. No.
v. 2:14-cv-08753-SJO-SS
BNSF RAILWAY COMPANY,
Defendant-Appellee. OPINION
Appeal from the United States District Court
For the Central District of California
S. James Otero, District Judge, Presiding
Argued and Submitted April 7, 2017
Pasadena, California
Filed August 25, 2017
Before: Milan D. Smith, Jr. and N.R. Smith, Circuit
Judges, and Gary Feinerman, District Judge. *
Opinion by Judge Feinerman
*
The Honorable Gary Feinerman, United States District Judge for
the Northern District of Illinois, sitting by designation.
2 ALAMILLO V. BNSF RAILWAY CO.
SUMMARY **
California’s Fair Employment and Housing Act
The panel affirmed the district court’s summary
judgment in favor of BNSF Railway Company in a former
employee’s action alleging that BNSF terminated him from
his job as a locomotive engineer in violation of the California
Fair Employment and Housing Act (“FEHA”).
The panel held that the appellant failed to establish that
BNSF discriminated against him base on his disability –
obstructive sleep apnea (OSA) – under FEHA. The panel
applied the three-step burden-shifting test in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973), and held that
appellant’s claim failed at the first step – establishing a prima
facie case of discrimination – because the record contained
no evidence that appellant’s OSA was a substantial
motivating reason for BNSF’s decision to terminate him.
The panel also held that even if appellant had made a prima
facie case of discrimination, his claim would fail at the third
step because appellant had not offered evidence that BNSF’s
stated reason – appellant’s history of attendance violations –
was either false or pretextual. The panel concluded that
BNSF did not engage in unlawful discrimination by
declining to alter appellant’s disciplinary outcome,
termination, based on his OSA diagnosis.
The panel held that BNSF did not violate its reasonable
accommodation duty under FEHA. The panel rejected
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
ALAMILLO V. BNSF RAILWAY CO. 3
appellant’s claim that BNSF failed to engage in the
interactive process after his attendance violations had
already occurred, because no reasonable accommodation
could have cured his prior absenteeism at that point.
COUNSEL
Robert M. Kitson (argued), The Myers Law Group A.P.C.,
Rancho Cucamonga, California, for Plaintiff-Appellant.
Ronald Wayne Novotny (argued) and Ann K. Smith,
Atkinson Andelson Loya Ruud & Romo, Cerritos,
California, for Defendant-Appellee.
OPINION
FEINERMAN, District Judge:
Plaintiff-Appellant Antonio Alamillo filed this suit
against Defendant-Appellee BNSF Railway Company
(BNSF), claiming that it terminated him from his job as a
locomotive engineer in violation of the California Fair
Employment and Housing Act (FEHA), Cal. Gov. Code
§ 12940 et seq. The district court granted summary
judgment to BNSF, and we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In 2012, Alamillo worked as a locomotive engineer for
BNSF. Due to his seniority, he had the choice to work either
(1) a five-day-per-week schedule with regular hours or
(2) on the “extra board,” which requires employees to come
to work only when called. Alamillo chose to work on the
4 ALAMILLO V. BNSF RAILWAY CO.
extra board from January 2012 through June 2012. If an
extra board employee failed to answer or respond to three
phone calls from BNSF within a single 15-minute period, the
employee would be deemed to have “missed a call” and
marked as absent for the day. BNSF’s attendance policy
provided that a fifth missed call during any twelve-month
period “may result in dismissal.”
Alamillo missed a call on ten dates in 2012: January 28,
January 29, January 31, March 16, March 18, March 20,
April 23, May 13, May 21, and June 16. He chose to receive
“Alternative Handling” for the three January missed calls,
which meant that he received additional training instead of
discipline. After his next four missed calls, Alamillo
received a 10-day suspension and a 20-day suspension. At
that point, Richard Dennison, the superintendent of the
terminal where Alamillo worked, advised him to get a
landline or a pager (he had given BNSF only a cell phone
number) to ensure that he would not miss another call.
Alamillo did not give BNSF a pager or landline phone
number; he was having an affair at the time, and he did not
want BNSF to call a landline number because there were
occasions when he left the house to see his girlfriend when
his wife thought he was at work. Nor did Alamillo (1) seek
transfer to a five-day-per-week job; (2) set his alarm for 5:00
a.m., the most common time for BNSF to call, like he had
done when he previously worked on the extra board; (3) ask
his wife to wake him up if his mobile phone rang while he
was sleeping; or (4) check the electronic job board to see the
jobs for which he could be called the next day. Sure enough,
he missed three more calls.
At some point after his final missed call on June 16,
Alamillo began to suspect that he was experiencing a
medical problem. At a June 19, 2012 meeting with BNSF
ALAMILLO V. BNSF RAILWAY CO. 5
California Division General Manager Mark Kirschinger,
Alamillo mentioned that he intended to undergo testing for a
possible sleep disorder. Alamillo asked Kirschinger if he
could switch to a job with set hours; Kirschinger told him to
follow the usual procedures to bid on a regular five-day-per-
week work schedule, but added that the disciplinary process
for his previous missed calls would proceed. Alamillo then
switched to a regular schedule and was able to wake up to
his alarm clock and arrive at work on time every day.
Alamillo completed a sleep study on July 29 and was
diagnosed with obstructive sleep apnea (OSA) by Dr.
Kiumars Saketkhoo on August 16. He was prescribed a
Continuous Positive Airway Pressure (CPAP) machine, and
his symptoms immediately improved. On or about August
18, Alamillo provided Dennison with a report from Dr.
Saketkhoo with his diagnosis.
BNSF often handles employee discipline by holding an
investigation hearing to determine whether a violation
occurred. Where, as here, dismissal is a possible sanction,
the transcript of the hearing is sent to BNSF’s Labor
Relations Department for review. Alamillo’s hearings for
the May 13, May 21, and June 16 missed calls occurred on
August 22. Alamillo discussed his OSA diagnosis at the
hearings and submitted Dr. Saketkhoo’s medical opinion
that not being awakened by a ringing phone is “well within
the array of symptoms” of OSA. However, no medical
professional opined that the May 21 and June 16 missed calls
actually were caused by his OSA.
BNSF Director of Labor Relations Andrea Smith
reviewed Alamillo’s employee transcript, the hearing
transcripts, and the hearing exhibits before rendering her
opinion that Alamillo should be given a 30-day suspension
for the May 13 missed call and be dismissed for the May 21
6 ALAMILLO V. BNSF RAILWAY CO.
and June 16 missed calls. Kirschinger, the BNSF officer
responsible for making the final decision, approved the
dismissal. Alamillo was told on September 18 that he was
being dismissed for the May 21 and June 16 missed calls.
Alamillo’s union appealed his dismissal and prevailed, and
he was reinstated to service.
Alamillo filed this suit against BNSF for wrongful
termination in violation of public policy, based on
underlying violations of the FEHA. He claims that BNSF
discriminated against him on the basis of his disability, failed
to accommodate his disability, and failed to engage in an
interactive process with him to determine a reasonable
accommodation for his disability. See Cal. Gov. Code
§§ 12940(a), (m)(1), (n). The district court granted summary
judgment to BNSF, reasoning that BNSF could not have
violated the FEHA because Alamillo’s attendance violations
took place before he was diagnosed with a disability and
before any accommodation was requested. See Alamillo v.
BNSF Ry. Co., No. CV 14-08753 SJO (SSx), 2015 WL
11004494 (C.D. Cal. June 16, 2015).
DISCUSSION
I. Disability Discrimination Claim
The FEHA makes it unlawful “[f]or an employer,
because of the … physical disability … of any person, … to
discharge the person from employment,” unless the
employee “is unable to perform his or her essential duties
even with reasonable accommodations.” Cal. Gov. Code
§§ 12940(a), (a)(2). “A prima facie case for discrimination
on grounds of physical disability under the FEHA requires
[the] plaintiff to show: (1) he suffers from a disability; (2) he
is otherwise qualified to do his job; and, (3) he was subjected
to adverse employment action because of his disability.”
ALAMILLO V. BNSF RAILWAY CO. 7
Faust v. Cal. Portland Cement Co., 58 Cal. Rptr. 3d 729, 745
(Cal. Ct. App. 2007) (internal quotation marks omitted).
“[A]n employer has treated an employee differently
‘because of’ a disability when the disability is a substantial
motivating reason for the employer’s decision to subject the
employee to an adverse employment action.” Wallace v.
Cty. of Stanislaus, 199 Cal. Rptr. 3d 462, 475 (Cal. Ct. App.
2016); see also Harris v. City of Santa Monica, 294 P.3d 49,
66 (Cal. 2013) (same). For purposes of FEHA claims,
California has adopted the three-step burden-shifting test
established in McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973), such that:
On a motion for summary judgment … the
plaintiff bears the burden of establishing a
prima facie case of discrimination based
upon physical disability, and the burden then
shifts to the employer to offer a legitimate,
nondiscriminatory reason for the adverse
employment action. Once the employer has
done so the plaintiff must offer evidence that
the employer’s stated reason is either false or
pretextual, or evidence that the employer
acted with discriminatory animus, or
evidence of each which would permit a
reasonable trier of fact to conclude the
employer intentionally discriminated.
Faust, 58 Cal. Rptr. 3d at 745.
Alamillo’s claim fails at the first step—establishing a
prima facie case—because the summary judgment record
contains no evidence that his OSA was “a substantial
motivating reason for” BNSF’s decision to terminate him.
Wallace, 199 Cal. Rptr. 3d at 475. Indeed, the parties appear
8 ALAMILLO V. BNSF RAILWAY CO.
to agree that Alamillo’s OSA made no difference whatsoever
to BNSF’s disciplinary outcome. BNSF did not know that
Alamillo was disabled when the decision to initiate
disciplinary proceedings was made, and Alamillo concedes
that BNSF “disregarded” his disability when it decided to
terminate him.
Even if Alamillo had made a prima facie case of
discrimination, his claim would fail at the third step of the
McDonnell Douglas test. BNSF asserts that it dismissed
Alamillo because of his recurrent absenteeism, and Alamillo
has not “offer[ed] evidence that the employer’s stated reason
is either false or pretextual, or evidence that the employer
acted with discriminatory animus, or evidence of each which
would permit a reasonable trier of fact to conclude the
employer intentionally discriminated.” Faust, 58 Cal. Rptr.
3d at 745. Alamillo’s pretext argument is based entirely on
emails in which Smith recommended that Alamillo be
dismissed for his May 21 and June 16 missed calls and
Kirschinger agreed with the recommendation. The sole
reference in those emails to Alamillo’s disability appears in
Smith’s discussion of the June 16 missed call: “Mr. Alamillo
entered documentation to support his argument that he has
sleep apnea; this was allegedly the reason he did not hear his
phone ring. While certain arbitrators could be sympathetic,
he did not seek assistance until after he faced dismissal (this
would be his second dismissal), which is arguably too late.”
In other words, Smith considered the possibility that sleep
apnea may have prevented Alamillo from hearing his phone
and refused to change her decision on that basis. That is not
evidence “which would permit a reasonable trier of fact to
conclude the employer intentionally discriminated.” Id. To
the contrary, it reinforces the conclusion that BNSF’s
articulated nondiscriminatory reason for firing Alamillo—
ALAMILLO V. BNSF RAILWAY CO. 9
his history of attendance violations, which culminated in the
May 21 and June 16 missed calls—was sincere.
To support a different result, Alamillo cites Humphrey v.
Memorial Hospitals Association, 239 F.3d 1128 (9th Cir.
2001), in which we observed that “[f]or purposes of the
ADA [Americans with Disabilities Act], … conduct
resulting from a disability is considered to be part of the
disability, rather than a separate basis for termination.” Id.
at 1139–40. (Alamillo did not bring an ADA claim, but
ADA decisions are “relevant” in interpreting the FEHA.
Brundage v. Hahn, 66 Cal. Rptr. 2d 830, 835 (Cal. Ct. App.
1997) (citing cases).) The plaintiff in Humphrey, who
suffered from obsessive compulsive disorder (OCD), was
terminated—purportedly for absenteeism—after she began
engaging in ritualistic behavior that made her late for work.
Humphrey, 239 F.3d at 1130, 1139; see also id. at 1135
(“[T]he process of washing and brushing her hair alone
could take several hours, and she at times would prepare for
work from eight o’clock in the morning until five or six
o’clock in the evening.”). We reversed the district court’s
grant of summary judgment to the defendant employer
because “a jury could reasonably find the requisite causal
link between a disability of OCD and Humphrey’s
absenteeism and conclude that [the employer] fired
Humphrey because of her disability.” Id. at 1140. Alamillo
argues by analogy that a jury could find that same connection
between his OSA and his absenteeism to support the
conclusion that BNSF fired him because of his disability.
Alamillo’s reliance on Humphrey is unavailing because,
on the record before us, no reasonable jury could find “the
requisite causal link” between Alamillo’s OSA and his
attendance violations. In Humphrey, the plaintiff’s
absenteeism was the direct result of her OCD. See id. at
10 ALAMILLO V. BNSF RAILWAY CO.
1132 (“Humphrey’s evaluation indicates that were it not for
her ailment, she would have been a model employee.”).
Moreover, months before her final set of absences,
Humphrey presented her employer with medical evidence
that her absenteeism directly resulted from her OCD. Id. at
1131 (describing a doctor’s letter stating that Humphrey’s
OCD “is directly contributing to her problems with
lateness”).
The record here is entirely different. Alamillo has
adduced no evidence that OSA caused the particular missed
calls at issue. His physician stated only that not being
awakened by a ringing phone falls “within the array of
symptoms” of OSA, not that there was direct causation in
Alamillo’s case. Moreover, unlike the plaintiff in
Humphrey, Alamillo easily could have taken steps that
would have allowed him to appear for work despite his
disability: exercising his option to work a job with regular
hours; checking the electronic job board every day; setting
his alarm for 5:00 a.m.; asking his wife to wake him up if his
phone rang while he was sleeping; or providing BNSF with
a landline or pager number to use as a back-up if he did not
answer his cell phone. Thus, Alamillo’s OSA may have
been a contributing factor to his attendance violations, but
only due to his own non-OSA-related carelessness and
inattention. BNSF therefore did not engage in unlawful
discrimination by declining to alter Alamillo’s disciplinary
outcome based on his OSA diagnosis.
II. Reasonable Accommodation and Interactive
Process Claims
In addition to prohibiting discrimination based on
disability, the FEHA makes it unlawful for an employer to
“fail to make reasonable accommodation for the known
physical … disability of an … employee,” Cal. Gov. Code
ALAMILLO V. BNSF RAILWAY CO. 11
§ 12940(m)(1), or to “fail to engage in a timely, good faith,
interactive process with the employee … to determine
effective reasonable accommodations, if any, in response to
a request for reasonable accommodation by an employee or
applicant with a known physical … disability or known
medical condition,” Cal. Gov. Code § 12940(n).
“Reasonable accommodation” is defined as “a modification
or adjustment to the workplace that enables the employee to
perform the essential functions of the job held or desired.”
Scotch v. Art Inst. of Cal.-Orange Cty., Inc., 93 Cal. Rptr. 3d
338, 358 (Cal. Ct. App. 2009) (quotation marks omitted); see
also Cal. Gov. Code § 12926(p) (providing examples of
“reasonable accommodation”). “‘Reasonable
accommodation’ does not include excusing a failure to
control a controllable disability or giving an employee a
‘second chance’ to control the disability in the future.” Wills
v. Superior Court, 125 Cal. Rptr. 3d 1, 20 n.4 (Cal. Ct. App.
2011) (quotation marks omitted); see also Brundage, 66 Cal.
Rptr. 2d at 838.
Alamillo argues that BNSF violated its reasonable
accommodation duty because it failed to do any of these
three things after his final missed call but before the
termination decision was made: “(1) change [Alamillo] to a
constant work schedule, (2) [choose] the non-mandatory
termination option in light of the circumstances, and
(3) [offer] leniency in light of the circumstances.”
The first proposed accommodation does not give rise to
a reasonable accommodation claim because BNSF actually
made that accommodation, switching Alamillo, at his
request, to a job with regular hours. The second and third
proposed accommodations—essentially, that BNSF not
terminate him for prior misconduct—do not qualify as
reasonable accommodations under California law. As noted
12 ALAMILLO V. BNSF RAILWAY CO.
above, “a ‘second chance’ to control the disability in the
future” is not a reasonable accommodation. Wills, 125 Cal.
Rptr. 3d at 20 n.4; see also Brundage, 66 Cal. Rptr. 2d at
838; EEOC, Enforcement Guidance: Reasonable
Accommodation and Undue Hardship Under the Americans
with Disabilities Act (EEOC ADA Enforcement Guidance),
available at 2002 WL 31994335, at *25 (“Since reasonable
accommodation is always prospective, an employer is not
required to excuse past misconduct even if it is the result of
the individual’s disability.”); cf. Atkins v. City of Los
Angeles, 214 Cal. Rptr. 3d 113, 134 & n.7, 139 (Cal. Ct. App.
2017) (citing the EEOC ADA Enforcement Guidance in
interpreting the FEHA’s reasonable accommodation
requirement). Alamillo’s reasonable accommodation claim
is therefore meritless.
The interactive process claim fails for similar reasons.
“To prevail on a claim … for failure to engage in the
interactive process, an employee must identify a reasonable
accommodation that would have been available at the time
the interactive process should have occurred.” Scotch,
93 Cal. Rptr. 3d at 365. The FEHA does not impose liability
for failure to engage in the interactive process when no
reasonable accommodation is possible. Nadaf-Rahrov v.
Neiman Marcus Grp., Inc., 83 Cal. Rptr. 3d 190, 216 (Cal.
Ct. App. 2008). Alamillo maintains that BNSF failed to
engage in the interactive process after his attendance
violations had already occurred, but no reasonable
accommodation could have cured his prior absenteeism at
that point. It necessarily follows that no reasonable jury
could find in Alamillo’s favor on the interactive process
claim.
ALAMILLO V. BNSF RAILWAY CO. 13
CONCLUSION
For the foregoing reasons, the district court’s judgment
is AFFIRMED. Appellant shall bear costs on appeal. Fed.
R. App. P. 39(a)(2).