Alamillo v. BNSF Railway Co.
869 F.3d 916
9th Cir.2017Background
- Alamillo, a BNSF locomotive engineer working on the extra board in 2012, missed multiple calls under BNSF’s attendance policy that treats five missed calls in 12 months as a potential basis for dismissal.
- He missed ten calls between January and June 2012; earlier missed calls resulted in training and suspensions. Supervisors advised him to provide a landline or pager.
- After the June missed call, Alamillo sought testing and was diagnosed with obstructive sleep apnea (OSA) in August 2012 and began CPAP treatment; he provided BNSF a medical report.
- BNSF held disciplinary hearings for the May 13, May 21, and June 16 missed calls; Labor Relations recommended dismissal for May 21 and June 16 and the final decisionmaker approved dismissal.
- Union appeal reinstated Alamillo, who then sued under FEHA for disability discrimination, failure to accommodate, and failure to engage in the interactive process. The district court granted summary judgment for BNSF; the Ninth Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether termination was because of disability (disability discrimination) | Alamillo: OSA caused his missed calls and thus was a motivating reason for termination | BNSF: Discipline was for pre-diagnosis attendance violations; decisionmakers did not know or rely on disability | Court: No evidence OSA was a substantial motivating reason; claim fails at prima facie step |
| Whether employer’s stated reason was pretext | Alamillo: Emails show decisionmakers knew of OSA and still dismissed, suggesting pretext | BNSF: Emails show consideration of OSA but refusal to excuse prior misconduct; asserted nondiscriminatory reason (absenteeism) is sincere | Court: Emails reinforce nondiscriminatory reason; no evidence of discriminatory animus or pretext |
| Failure to provide reasonable accommodation | Alamillo: BNSF should have (a) switched him to set schedule, (b) chosen non-mandatory termination, or (c) shown leniency | BNSF: It already switched him to a regular schedule; employer not required to excuse past misconduct or give a ‘second chance’ | Court: Switch to regular schedule was provided; excusing past misconduct is not a reasonable accommodation; claim fails |
| Failure to engage in interactive process | Alamillo: BNSF did not timely engage to identify accommodations after last missed call | BNSF: No reasonable accommodation could have remedied past missed calls; interactive process not required where none available | Court: Plaintiff failed to identify an accommodation that could have prevented the prior absences; interactive-process claim fails |
Key Cases Cited
- McDonnell Douglas Corp. v. Green, 411 U.S. 792 (establishes burden-shifting framework for discrimination claims)
- Humphrey v. Memorial Hospitals Ass'n, 239 F.3d 1128 (9th Cir. 2001) (disability-related conduct can be viewed as part of disability for causation analysis)
- Faust v. Cal. Portland Cement Co., 150 Cal.App.4th 864 (elements and burden-shifting analysis for FEHA disability discrimination)
- Wallace v. County of Stanislaus, 245 Cal.App.4th 109 (disability is a motivating reason standard under FEHA)
- Scotch v. Art Inst. of Cal.-Orange Cty., 173 Cal.App.4th 986 (employee must identify reasonable accommodation available when interactive process should have occurred)
- Wills v. Superior Court, 195 Cal.App.4th 143 (reasonable accommodation does not require excusing past misconduct or giving a ‘second chance’)