Emily Snead v. Metropolitan Property & Casualty Insurance Company, a Delaware Corporation James McIntosh

1080 by changing simply Act] All Writs remedy criminal aas querela audita motions”); on their 2241 to 1651 number is that plain “what is questionable, cases is 1054, Reno, 1055 Moore a defendant to enable simply

it cannot lie of. (9th curiam) Cir.1999) (concluding (per com- motion without file a section to inadequate or ineffective § not mo- 2255 is such that governing rules with the plying prisoner’s particular tions”). merely sister circuits because our agree with We barred), may proeedurally prisoner § 2255 motion a federal conclude that — cert, U.S. —, by denied, 120 S.Ct. or sentence a conviction challenge (2000).4 writ of audita for a L.Ed.2d 1115 petition way of challenge cognizable when that querela cognizable are claims Valdez’s Because case, because, § 2255 conviction vacate his § motion to in a postconvic- fill in the “gap” is no there sentence, querela of audita the writ remedies. tion district court him. The not available petition. his denied properly therefore Moreover, reject Valdez’s available querela is that audita contention AFFIRMED. he is the fact that due to in his case in a raising his claims precluded of the by provisions those

§ 2255 motion Penalty Death Effective

Antiterrorism and I, 104-132, § tit. Pub.L.

Act (codified (AEDPA) 1214, 1220 110 Stat. SNEAD, Plaintiff-Appellant, Emily §§ 2255 and at 28 U.S.C. part relevant rights prisoner of a 2244), limit A or successive motion.3 file a second & CA- PROPERTY METROPOLITAN con valid may not circumvent prisoner COMPANY, a INSURANCE SUALTY attacks on collateral limitations gressional McIn- Corporation; James Delaware very those limitations by asserting Defendants-Appellees. tosh, postconviction in the remedies gap create a No. 99-35071. common law by the must be filled Appeals, States Court United 869; Kimberlin, 675 F.2d at writs. See Ninth Circuit. Davenport, re also In see Cir.1998) that, if (concluding even 4,May Argued and Submitted AEDPA foreclosed the limitations 23, 2001 Jan. Filed by §§ 2241 and 2255 use of 28 U.S.C. “it would be senseless prisoners, federal Congress permitted them

suppose that [by way of door through the closed

pass Indeed, AEDPA, conclude although we do not here pro- by amended 3. Section gap for audita be a can never there vides: fill, point out that AEDPA’s querela we do must be cer- motion A second or successive suspension of by panel to a do not amount provided in section tified as limitations writ, appeals to con- appropriate Turpin, court of U.S. Felker v. (1996), tain— 135 L.Ed.2d that, (1) if newly evidence discovered "gap filling” § its own 2255 contains light proven and viewed prisoners to allows provision, which whole, sufficient to be establish as a would circumstances, file, habeas cor- proper no convincing evidence that by clear and § 2241 if 28 U.S.C. pus petitions under would have factfinder found reasonable ineffective. inadequate or is otherwise offense; or guilty of the movant Hood, Lorentsen law, (2) of constitutional a new rule Cir.2000). re- to cases on collateral made retroactive Court, previ- thaLwas Supreme view the ously unavailable. Hunt, Hunt, Busse & Esq., N. Scott Portland, plaintiff-appel- for the Oregon, lant. Rives, Altschul, Esq., Stoel M.

Andrew defendants-ap- Portland, for the Oregon, pellees. TASHIMA, and LAY,*

Before: McKEOWN, Judges. Circuit TASHIMA; Dissent Judge Opinion LAY by Judge TASHIMA, Judge: Circuit de- we must question underlying The discrimination employment in this cide law is wheth- arising under ease (“Snead”) ad- Emily Snead er to survive duced sufficient Property Metropolitan employer’s, (“Met”), Company’s Casualty Insurance We summary judgment. for motion however, decide, the threshold first must gov- action is question summary judg- special by Oregon’s erned applicable procedure ment sum- by federal cases or discrimination procedures. rules mary judgment * sitting by designation. Lay, P. Senior United Donald Honorable Circuit, Eighth Judge for the Circuit States

I. BACKGROUND one market. Although Max, Gary a PCS employee, Snead, filled no one was Met engaged in the sale of home and ever hired replace Snead. auto through insurance agents known as (“PCS”). Property and Casualty Specialists After her short-term disability leave ex- turn, These agents, report to Market pired, Snead did not return to work. In- (“MDM”). Development Managers Each stead, she went long-term on disability MDM responsible managing 15 to 20 mid-1996, leave. In more than year agents. PCS market, the Portland Met after Snead first leave, went disability hired two originally MDMs: Snead Met sent her a letter stating that her long- Bill Both reported Todd. to James McIn- term disability benefits would end in De- tosh, Vice President organiza- of the PCS cember unless provided medical tion. While Snead handled the “Portland documentation that she was still disabled. territory, North” Todd was assigned to the The decision to terminate her long-term “Portland South” territory. By disability benefits was partially based on Snead and Todd together managed 33 PCS the opinion Slack, of Dr. Robert a Board agents. certified psychiatrist, that, who opined giv- In early being Snead was stalked en stalking incident, “[h]er refusal by one of Met’s former employees. She return to work understandable,” but claimed that through the use of the mail that she could still function other work and telephone, that former ha- settings. Snead provide failed to the re- rassed and threatened her. She also quested information, additional and thus claims that Met handled the matter poorly, her disability benefits ended on December help, offered little and even made light of 31, 1996. She subsequently faxed McIn- result, the situation.1 As a she claimed tosh a medical release stating that she that she distress, suffered emotional which could return to work without restric- was diagnosed as “Post-Traumatic Stress 24,1997. tions February on Disorder Depression.” and expected Snead be to in reinstated her being After diagnosed, so Snead sought old position. Met’s Resources Handbook and was granted a three-month leave of for Managers that: states “An employee absence, which a salary included continua- returning from disability will be in placed tion under Met’s short-term disability job they occupied prior to the disabili- program. Snead ultimately extended her ty. employee An returning from a request months, six leave of to which was ap- also may absence proved. placed be in job When Met same received Snead’s re- quest extension, occupied for an before the leave in Todd was absence or assigned responsibility reasonably equivalent territory. position Snead’s For convenience, administrative same salary But, and change pay.” rate of while was reflected on paper by leave, combining Snead was on the staff of Met’s Portland North and Portland South into Portland office employ- decreased from 33 however, undisputed, 1. It is paid that Met began to her disability leave in March 1995. have caller ID installed on her tele- Nevertheless, office Snead against filed a lawsuit phone, a security system installed in of- her September Met claiming in intentional fice, paid bodyguard, and allowed to her infliction of severe emotional distress and bring Also, handgun concealed to work. reckless infliction of emotional distress. once the stalker was identified as a former alleged Snead that appro- Met failed to take (David James) whom had Snead priate in response stalking action to and terminated, only paid Met not for Snead’s death threats that suffered. The she district brought defense by in lawsuit against James Met, against court dismissed Snead’s suit Snead, Met paid but prosecute and also to by which was affirmed the Ninth Circuit. See counterclaim, Snead’s which resulted in a Metropolitan Prop. Snead & Cas. Ins. restraining against order money James and a (D.Or.1996), F.Supp. aff'd, Coincidentall)', settlement to Snead. 1997) (Table), Cir. WL James exactly lawsuit was settled as Snead (his supe- with Moore that need discussed Conse- January 1997. in10 1993 to ees call, had rior) of Snead’s the time until MDMs who two needed longer noMet quently, position.3 old to her to return (or market her expected in any market Portland with McIn- result, Nonetheless, agreed in mid- States). Moore aAs United to number called Snead reduce the to McIntosh January tosh’s decision longer no position MDM that her market. the Portland tell MDMs in in the her future discuss and to existed 14, 1997, wrote McIntosh February On disagree McIntosh and Snead company. conversa- their earlier confirm to to Snead that conversation. said what about position that that the to confirm tion Snead, discussed they According be determined MDM was as she held be moved could Snead that possibility Snead that stated The letter “excess.”4 otherwise), (local but job another super- agent position a PCS explore could job about specifics needed she paid would be Todd. Snead vised hand, McIn- the other On compensation. as salary as well com- “base unspecified himto indicated that Snead testified tosh also stated letter McIntosh’s mission.” not want and did not mobile she was her status February that as of agent. a PCS to be eligible made her employee” an “excess Mi- 21, 1997, sent McIntosh January On allowance.”5 separation enhanced “an repre- Dineen, Human Resources chael February responded attorney Snead’s conversation sentative, his e-mail about was not inter- Snead 20, 1997, stating that Snead, stating: agent posi- to a PCS in a demotion ested has program the PCS told her I 19, 1997, on March Consequently, tion. there and that major changes undergone wrote Resources of Human Director in Port- available position MDM not a discontinu- inform her Snead inform her I did time. at this land effective March processed be would ance an- be a MDM might there communicated unless Snead her if she asked market other in a PCS interested Met that she is me that informed She mobile. Pending relocating. or in agent position of be- intentions has no also not. She Depart- Resources Human response, basically expected She coming a PCS. Turnaround Related a “Job ment drafted salary same at the position comparable 1997, 19, listing on March Document” bonuses, able to work AND be rate, with date of Snead’s as the effective March 31 that we again I stated her home. out of termination. grow market no desire have management.2 1997, attorney 31, additional Snead’s require On March regarding information further requested Moore, Presi- Bill Vice and McIntosh position. agent PCS of the specifies posi- Sales, Snead’s also discussed dent of for informa- request receipt of Upon one to eliminate the need tion and however, attorney stated tion, Met’s Snead, how- According to MDMs. Portland attor- [Snead’s received [he] time “[b]y the time that McIntosh ever, the first this was statements, it Moore's contradicts somewhat following various their 2. Snead testified change conversations, administrative gave with the her never is consistent McIntosh regarding and requested Port- Portland North information that combined specific "disinter- that he seemed positions and into market. other territories one land South Dineen was also testified She ested.” "demeaning.” "condescending” indicating term internal is Met’s 4. "Excess” would be eliminated. that the letter, Yet, coun- Met’s a March eliminate [to "the decision sel stated that February ”[o]n noted that court 5. The district July was made position] Snead’s 24, 1997, payroll on its put back Met Snead disability long was on term Ms. while Snead possible about continued discussions while leave, with market manage the Portland positions.” Although representation only one MDM.” ney’s] letter of March 1997 it was too III. DISCUSSION late to forward [Met] receipt A. The Prima Facie Case day.”

same Accordingly, Snead’s termi- nation place took as scheduled on March Section provides 659.436 31,1997. later, Less than two months Met is an “[i]t employment unlawful practice wrote Todd and all agents the PCS in for any employer to ... discharge from Portland to inform they them would employment an otherwise qualified be laid off as the result of a decision to person [because person] is a disabled close the Portland office. Met ultimately person.” (1999). § Or.Rev.Stat. 659.436 terminated Todd in August 1997. There is The standard for establishing prima facie still one agent PCS in Portland who re- case of discrimination under law is ports to a MDM in Seattle. identical to that used in federal law. See As a termination, result of her Snead Jantzen, Henderson v. 79 Or.App. commenced this state law dis- disability 719 P.2d .(1986); 1323-24 see crimination case in Oregon court, § also Or.Rev.Stat. 659.449 (providing that claiming § violation of 659.436 of Ore- Oregon’s discrimination laws “shall be con gon Revised Statutes. The case was time- strued to the extent possible in a manner ly removed to federal court on the basis of that is consistent similar provi diversity of jurisdiction. citizenship sion of the federal Americans with Disabil district granted court defendants’ motion [‘ADA’], amended”). ities Act of 1990 for summary judgment because Snead alleges that Snead she was terminated be failed to establish that she was terminated cause of her disability. Therefore, to es because of disability. Snead timely tablish a facie case of discrimination appeals judgment. from the We jur- have under the ADA she must show that she: isdiction under 28 U.S.C. (1) (2) disabled; (3) qualified; affirm. suffered an adverse action be cause of her disability. See Sanders v. II. STANDARD OF REVIEW Prods., Inc., Ameson We review the district grant court’s (9th Cir.1996). It is undisputed that summary judgnent de novo. See Boto was qualified Snead job. for the What is san v. McNally Paul Realty, 216 F.3d however, disputed, is whether she was dis (9th Cir.2000). In so doing, we apply abled and whether she was terminated be the same standard by the used district cause of disability.6 court under Federal Rule of Civil Proce dure 56(c)-namely, viewing the Disability 1. light the most favorable to the non-moving party, we must decide whether law, there are Oregon Under person” “disabled any genuine issues of material fact and (1) is defined as a person who: “has whether the district court correctly applied physical or mental impairment which sub- the relevant law. substantive Lopez stantially limits one or major more life Smith, Cir.2000) (2) 1131 activities;” “has a record of such an (en banc). (3) impairment;” or regarded “is having as puzzled 6. We by are Air, Inc., dissent’s insistence noted in Barnett v. U.S. is a this reasonable (9th Cir.2000) (en banc), accommodation/in- 1112 "[l]he process despite teractive that case its recognition process triggered interactive by a either did “Snead not ask Met job to alter her in request by for accommodation a disabled em- way that would disability. accommodate her ployee by recognition or the employer’s prepared Snead was return to her MDM Here, need such an accommodation.” without job modifications to the party neither has raised reasonable accommo- as it before she on went leave. In other dation as an issue and both have treated this words, simply she job asked Met for her old disparate as a treatment case. Slip op. back.” As we recently 1096. curiam) (find- Cir.1998) (per 1174-75 Or.Rev.Stat. impairment.” an such 659.400(1). substantially lim- could be ing § ability work he suf- ited his because Impairment Physical or Mental

a. depression, post-traumatic fered from attacks).8 disorder, panic stress and “physical Oregon regulations, Under “any include impairments” mental bench, In case at the evidence disorder, as psychological or mental relating condition is sufficient to Snead’s retardation, syn- brain organic mental an of fact that she suffered raise issue illness, and drome, or mental emotional or mental physiological from documented Admin. Or. specific learning disabilities.” First, physician own wrote disorder. (2000). 839-006-0205(8) Within R. depression rendered that her stress scheme, “substantially limits” statutory Furthermore, “medically” disabled. impairment renders that “[t]he means examiner, Dr. medical independent major ac- life person perform unable to Bellville, found that Snead suf Charles average person gener- tivity fered “Post-Traumatic Stress Disor perform.”7 al can Or.Rev.Stat. population Depression.” der 659.400(2)(d)(A). “ma- § definition of The Id. jor employment. activity” life includes Substantially Limiting b. 659.400(2)(a). § we conclude that Snead Because depression In stress and Oregon, fact has raised an issue of as to impairments. can considered mental be recognized impairment, has a now Printing, Marathon See Wheeler v. to which it was sub examine the extent 974 P.2d 212-13 Or.App. limiting. stantially The Court of (1998). ADA. is true under the same “opinion Appeals has stated its Stores, Inc., Lucky F.3d Holihan v. Quinn Transp. Pac. Southern (9th Cir.1996), court n. (1985)] it Or.App. 711 P.2d 139 makes and depression that “stress explained as ‘employment,’ clear that used [Or. ADA. An EEOC could be covered 659.400(2)(a), § not Rev.Stat. does mean ] on ADA Technical Manual Assistance City general.” Winnett ‘depression’ are provides that ‘stress’ and Portland, P.2d OrApp. or not may may conditions that be consid of (“ (1993) person, example, ‘A who impairments, depending on whether ered degree in graduate has obtained a chemis a documented conditions result from these try, and is then turned down for chem Id. or mental disorder.” physiological job impairment, of an ist’s because (quoting Technical Assistance Man EEOC I) by the that he (Title likely to be heartened news ual Provisions Employment conductor, an attor can still be streetcar Act of the Americans With Disabilities ”) 2.1(a)®, (1992)); E.E. ney ranger.’ (quoting or a forest at II—3 see Mustafa Dist., 1169, Black, Marshall, F.Supp. Ltd. v. County Clark Sch. [employee's] depression "substantially limits" severe is a medical A second definition of impairment significantly re- diagnosed by professional, "[t]he is that condition a health condition, un- stricts manner duration qualifies impairment perform partic- der which an individual can ADA.”); Corp., 145 F.3d Criado IBM major activity compared as ular life (1st Cir.1998) anxiety ("depression 442 condition, under which manner duration compounded by Deficit Disorder Attention average person general population plaintiff's ability substantially limited major activity.” perform same life can Services, work”); Pritchard v. Southern Co. 92 659.400(2)(d)(B). § Or.Rev.Stat. Cir.1996) (11th ("[depres- 1132 to constitute a mental sion has been held agree 8. that de- At least four other circuits Region impairment”); 13 Mental Doe impairment pression constitute a mental can Comm'n, 704 F.2d Health-Mental Retardation City Chicago, under ADA.See Krocka of (5th Cir.1983) (same). Cir.2000) ("Because (D.Haw.1980)). Mgmt. The court also re- Marconi v. Guardian Corp., 149 “ however, jected, ‘employ- (1997) the notion that Or.App. 945 P.2d 89 n. 1 meant ... ‘the of 659.400(2)(b)). ment’ one’s § (quoting Or.Rev.Stat. ” Id. particular employer].’ [a choice with ADA The definition virtually is identical. 1099). Black, F.Supp. E.E. at (quoting 1630.2(k) (2000) § See C.F.R. (stating Rather, the court chose a sensible compro- a person that has a impair record of an an impairment mise and found that is sub- if person ment that history “has a of if stantially limits limiting substantially mental or physical impairment that sub the work involved. See performance of stantially limits one major or more life (“We persuaded id. are ... that activities”); see Burch v. Coca-Cola meaning ‘employment’ of the term in [Or. Cir.1997). 659.400(2)(a) § Rev.Stat. is not at either ] many physicians’ notes and various letters Here, spectrum.”). end of the the work record, in the pro combined with Snead’s manager. involved is that of sales leave, longed create at least genuine of fact regarding issue a record of Snead’s at genuine Snead has least raised a Pritchard, impairment. See 92 F.3d at fact that issue of material she was limited (paid unpaid disability leave es ability work perform her involved. being tablish evidence a record of im Her that needed doctor wrote she leave paired). “medically because she was disabled not that depression,” stress she was conclusion, In the evidence that shows only job MDM at doing limited from genuine Snead has established a issue of Further, Met. Snead’s leave absence material fact that has she a record of temporary,

was not and it even had to be disability-and thus is considered disabled result, at extended. As a she did not work Therefore, § 659.400. under years. all nearly two Hardie Cf. law, it is necessary not for Snead to also Legacy Sys., Or.App. Health currently establish that is im- either she (2000)(“ P.3d term physical ‘Short paired or she regarded having that is impairments leaving or mental no residual impairment. See Or.Rev.Stat. disability or impairment are disabili 659.400(1). § ”) R. (quoting ties.’ Or. Admin. 839-06- 240(1) (1996)). Employment 2. Adverse Be- Action Disability Slack, cause of Her

It is not fatal that Dr. Robert that, psychiatrist, opined Board certified beyond challenge per It is incident, given stalking refusal “[h]er son’s termination is considered an adverse understandable,” return work but employment action and defendants do not could function in still other work argue dispute, otherwise. What is how Even if Snead settings. could return ever, is that adverse action years recovery, work two into her the rec- disability. taken because Snead’s ord still shows that she had been “medical- Oregon, permits an infer “[e]vidence ly had disabled” and even been suicidal. ence discrimination” sufficient for a Therefore, genuine there issue of fact to make facie ease about whether Snead’s mental condition against she was discriminated because of working had prevented her as a sales Henderson, disability. See 719 P.2d manager, at least while she was on disabili- ty leave. Or.Rev.Stat. 659.400(2)(d)(A). Here, met her Snead has burden “permits providing evidence which c. Impairment Record of Although inference of Id. discrimination.” evidence, strong conflicting not informa law, Oregon Under Snead would of regarding timing tion the need to impairment” have “a record of such if she ... infer- history impairment.” position “has a of such an eliminate Snead’s creates an 1090 (1996). Thus, 2211, 659 L.Ed.2d 135 a S.Ct. have been disability may her that ence doctrine, courts federal the Erie According “[u]nder decision. Met’s

factor substantive apply state diversity sitting in Jan- to Snead spoke McIntosh, he when Id. at law.” procedural no federal there was law and that 1997, her he told uary Plumer, Yet, 2211; v. see Hanna 427, in Portland. 116 S.Ct. available MDM 1136, 14 465, 460, his S.Ct. been 85 if it had asked U.S. 380 was when Moore Tomp- (1965); call R.R. Co. of Snead’s Erie point until L.Ed.2d 8 up intention 817, an- 64, 78, 82 he S.Ct. old 58 position, kins, her her to 304 U.S. return Further, the Su- (1938). had been. As it stated that L.Ed. swered attorney 1997, however, Met’s of a 21, court, “[classification letter preme March deci- “the Erie attorney, states ‘procedural’ for or to Snead’s law as ‘substantive’ position] challenging Snead’s en- eliminate [to sion is sometimes purposes was on 1995, Ms. Snead 427, while July made at 518 U.S. Gasperini, deavor.” leave, manage disability term long those times. of is one 2211. This S.Ct. MDM”- only one with market Portland guidance, not are without We testimony. contradicting Moore’s thereby us in this assist In order however. conclusion, of termi- timing Snead’s “pro endeavor, Court has Supreme history disability nation, with coupled test.” determination’ an ‘outcome pounded Met, provide with communications and her test, the follow first ask we Id. Under issue genuine to raise sufficient “ af significantly it ‘[D]oes ing question: of element as to third fact of material for a federal litigation of a the result fect of discrimination. facie case prima a law of disregard court our have us end would Snead upon the action controlling an be would argues She point. at this analysis in State parties same by the claim same summary ” judg not entitled Met Co. Guaranty Trust (quoting Id. court?’ a defen because, to defeat in order ment 1464, 109, 65 S.Ct. York, 326 U.S. judgment, summary motion dant’s (1945)). Additionally, whether L.Ed. in em law judgment summary of the outcome disregard would affect that an em only requires cases ployment twin by ‘the guided be action “must case facie adduce ployee/plaintiff of discouragement rule: Erie of the aims Henderson, 719 of discrimination. inequita of and avoidance forum-shopping 1324; ” P.2d at Callan of Confederation Gasperi laws.’ administration ble Adm’rs, 717 P.2d Or.App. Or. Sch. (1996) ni, S.Ct. at 518 U.S. (1986). Met, the ot n. 3 Hanna, 85 S.Ct. 380 U.S. (quoting r court should hand, this argues he apply 1136). should not Accordingly, we set analysis burden-shifting follow favor a decision “produce as to test so Douglas Corp. in McDonnell forth one rule unless of the state application ing 802-04, Green, 411 U.S. Cham will be furthered.” aims of these (1973). rule Which L.Ed.2d 668 154, 159 Giampapa, berlain v. nature of on the depends apply we Cir.2000). (3rd rule. principles, by these Guided Facie Beyond the Prima Case: B. Oregon’s question whether address Burden-Shifting rule is outcome determi only” facie “prima Governs Procedural Law ‘application Federal “Would this sense: native important so have [standard] jurisdiction diversity “Federal of one both fortunes upon the effect adju for the forum an alternative provides would [apply] it failure to litigants that but it does rights, of state-created dication citizens against [unfairly discriminate generation rules carry state, likely to cause be or] forum v. Center Gasperini law.” substantive court’?” the federal to choose Humanities, 518 U.S. 1091 Gasperini, 428, 518 U.S. at 116 S.Ct. 2211 See Gasperini, 428, 518 at U.S. 116 S.Ct. Hanna, (quoting 9, 380 at U.S. 468 n. 85 2211. Although one speculate, could 1136) (alterations S.Ct. in the original). If example, filing in an Oregon court law is indeed outcome determina- may be advantageous dis- tive in light aims, of these we must then plaintiffs crimination because a higher per- decide overriding federal inter- centage of such claims go trial, would justifies ” est application of law. federal See neither of the “twins aims of Erie truly is Byrd v. Blue Ridge Rural Elec. Coop., implicated. Hanna, 468, 380 U.S. 85 525, 537-39, 893, 356 U.S. 78 S.Ct. 2 S.Ct. 1136. The identical pro- outcomes (1958).9 L.Ed.2d 953 duced through the state and sys- federal tems make it improbable that increased a. The Oregon Rule Is Not forum-shopping will Likewise, occur. be- Outcome Determinative cause no significant advantage would ulti- Utilization of sum mately be gained by filing state, mary judgment rule-as opposed to the opposed court, to federal unlikely three-part Douglas analysis-is McDonnell litigants will encounter significantly differ- not outcome only determinative. sig ent results under the regimes. two There- nificant difference between the state and fore, that, we conclude in light of Erie’s regimes federal when case that fails aims, twin application of the Oregon sum- one of the Douglas McDonnell components mary judgment rule in employment dis- will be dismissed. example, For a plaintiff crimination cases would not be outcome whose case could not survive summary determinative if applied by federal courts judgment on the third Douglas McDonnell sitting diversity. component in court for lack of evi dence only would delay the inevitable b. Overriding Federal Interests proceeding in where, state court on the Additionally, record, overriding same federal in nonsuit JNOV would be require terests application in order at the of close of the plaintiffs federal law in case. case, this case. Byrd, either See 537, court would 356 ultimately U.S. at 78 apply law, the same S.Ct. 893. Making substantive employ prima facie showing reasoning, same produce of employment same discrimination is not an result. Only timing of the case’s dis onerous burden. See Douglas, McDonnell missal (along with expense the added of 802, 411 1817; U.S. at Chuang v. trial) bringing the case to would differ. Davis, University Trustees, Cal. Bd. of 1115, (9th Cir.2000) 225 (“The F.3d 1124 Furthermore, the application of the Ore- gon requisite degree proof scheme cases necessary not fur- to es would ther either of tablish a prima Erie’s aims: facie .twin discour- case Title ...VII agement of forum-shopping summary judgment avoidance is minimal and does of inequitable administration of the laws. not even need to rise to the of a level 9. No square!}' circuit has Co., 696, decided Raytheon whether a (1st 164 F.3d 699 Cir. application state’s 1999) (Massachusetts); alternative to the King v. J. Herbert Douglas McDonnell burden-shifting scheme is Hosp., (4th Thomas Mem’l F.3d “procedural” 1998) or “substantive” (West Minnesota, under the Erie Virginia); Cir. Lee v. Commerce, doctrine. Corp., Bourbon Kmart Dep’t (8th 157 F.3d (7th Cir.2000) (Posner, J., F.3d 1998) (Minnesota); con- Cir. Nichols v. Gro Lewis because, curring). cases, cer, This is so (5th Cir.1998) most (Lou 138 F.3d 565-66 evidentiary judgment isiana); at summary scheme Astrospace, Olson General Elec. identical under (3d both state and Cir.1996) (New federal law. F.3d Jersey); See, Woodward, e.g., Perry F.3d Pierce v. Commonwealth Ins. Life 1999) (New Mexico); 1141-42 Cir. 1994) Nor- 802 n. 8 Cir. (Kentucky). But see, ville v. Bourbon, Staten Island Hosp., (Posner, Univ. J., 223 F.3d at 474 (2d 1999) (New York); Cir. ("Illinois Carpenter v. concurring) rejected expressly appli Ass’n, Federal Nat’l Mortgage cation of Douglas the McDonnell to Illinois (D.C.Cir.1999) (District Columbia); retaliatory cases”). Mullin discharge

1092 ... discriminato- proof of in evidence.”) presentation (quoting the of preponderance ” (quoting Id. at 2106 885, cases.’ ry-treatment 26 F.3d Simplot J.R. Wallis 2742) 506,113 S.Ct. sit- at Cir.1994)). courts U.S. Mary’s, If 509 (9th federal St. 889 follow compelled original). the diversity were in (ellipsis ting every case Henderson, nearly and Callan our however, deci- Snead, that argues filed discrimination employment of Inc., Industries v. Horizon Messick sion in trial, an providing go to would Oregon law Cir.1995), mandates the 1227 courts’ district on the burden increased In Mes- Oregon rule. the of application bur- This dockets. trial already crowded to resolve sick, asked were we an pay price high too den granted be should summary judgment if all three identical be that would outcome Oregon and dis- on federal the defendants ap- components were Douglas McDonnell 1229. After at Id. claims. crimination stage rath- summary judgment at the plied judgment summary of grant holding that trial. than at er federal plaintiffs on the defendants for the is an system Furthermore, federal “[t]he plaintiff because erroneous claim was jus- administering system independent to raise evidence sufficient presented had its properly invoke who litigants tice case facie prima as to her an issue of fact of characteristic An essential jurisdiction. that Ore- recognized we pretext, as to and which, in civil manner system the to adduce required plaintiff only gon law trial actions, it distributes common-law case order prima facie of Byrd, jury.” judge and between functions at id. summary judgment. defeat policy The S.Ct. 893. U.S. analysis, Therefore, further without of state-created enforcement uniform of “es- because we indicated every “cannot in obligations rights and of discrimina- case facie tablished rule-not a state with compliance exact case claim], judg- summary the federal tion [on obligations-which rights up with bound Age Discrimination allocating on of ment system the federal disrupts Id. inappropriate.” Id. at also jury.” judge and Act was claim between functions 537-38, S.Ct. 893. however, not, bind does language This Messick, analyzed never we In here. us Considerations c. Other in federal Oregon rule of the application McDonnell Our conclusion above, as- Rather, we stated as court. federal burden-shifting scheme Douglas previ- had did, we and because sumed Supreme comports law procedural pretext fact issue of ously found In St. pronouncements. own Court’s claim, engage did not we federal on the Hicks, U.S. Center Mary’s Honor law. See analysis under state separate L.Ed.2d 113 S.Ct. because, deciding short, id. McDon “the (1993), stated the Court motion on summary judgment procedural ais presumption Douglas nell favor, also neces- plaintiffs in the claim an order device, only to establish designed the same claim in the state sarily decided Id. (emphasis production.” proof and of application regarding discussion way, any Although this statement original). to the law summary judgment Oregon’s deci ultimate to the Court’s essential dicta-the law claim plaintiffs view Court’s sion, probative it is Further, already been decided. had issue has reiterated Court subject. considered itself never Court has “this case. subsequent one in at least view holdings] silentio prior sub [by bound Plumbing Prod v. Sanderson In Reeves brings the finally case subsequent when ucts, 530 U.S. Burbank-Glendale- us.” before issue (2000), stated the Court L.Ed.2d City Bur- Auth. Airport Pasadena subsequent deci Douglas “McDonnell Cir.1998) bank, allocation have ‘established sions State Michigan Dep’t (quoting Will an order for production burden Police, 4,109 n. 491 U.S. S.Ct. claims the employee’s reliance on dis- (1989) (brackets in 105 L.Ed.2d 45 ability in having taken added) (internal original; ellipsis quotation action,”10 analysis the developed in omitted)). marks This subse- Douglas McDonnell for suits under Title now, quent question Until the of case. VII of the Civil Act Rights of 1964 ap- apply whether we should the McDonnell plies.11 Mustafa, 157 F.3d at 1175-76 burden-shifting Douglas scheme state (citing Teahan v. Metro-North Commuter question. law claims was an open Accord- Co., (2d R.R. 951 F.2d 514-16 Cir. ingly, we need not follow Messick’s as- 1991)). sumption. Here, Met unqualifiedly has stat Our conclusion also consistent with ed that Snead’s condition nothing had circuit on of application law the federal do with Met’s elimination of position. summary judgment diversity procedures Thus, under Mustafa, Snead “bears the Gasaway cases. Northwestern burden at trial showing of that [Met’s] (9th Co., Mut. Ins. 26 F.3d Life reason ... for termination pretextu (“In Cir.1994) cases, diversity procedural 1176; al.” Id. at see also Collings Long to summary judgment issues related are view Fibre 63 F.3d Cir. law.”); by controlled Caesar Elec. 1995) (“Unless [plaintiff] can show that Andrews, Inc. v. n. 3 explanation [defendant’s] for [plaintiffs] (9th Cir.1990) (“under doctrine, the Erie discharge was a pretext disability for dis governs procedural aspects federal law the crimination, [she ... presented no has] summary case”); of judgment diversity triable ADA.”); issue under the Smith v. Fairbank Wunderman Cato John- cf. Barton, (9th Cir.1990) son, Cir.2000) 530-32 diversity case, in a (holding, (holding that district that the employer once offers a court reconsidering did not err in legitimate, nondiscriminatory reason for summary court’s denial of judgment before the discharge, and that reason disclaims removal, which was contended to be law of any reliance on disability, the the burden case, the because summary “the California shifts to the to demonstrate that judgment standard under [Cal.Civ.Proc. the articulated reason is a pretext dis § 437c Code] is different relevant re- discrimination). ability spects from the standard under Fed. Therefore, summary on judg necessarily assuming R.Civ.P. 56” and ment, we must determine whether Snead removal). applied federal rule after We provided support sufficient evidence to must, therefore, examine the ten- finding pretext. In so doing, plain the dered summary judgment beyond on the tiff of persuasion. retains burden In prima facie case' in accordance with ’ words, other Douglas burden-shifting McDonnell mod- the opportunity ha[s] now el. proffered demonstrate reason Analysis 2. Pretext employ- was not true reason for the ment merges decision. This burden now ADA, Under an em when persuading the ultimate burden of ployee establishes a facie case of the court that been victim she has disability, discrimination of a because may employer provides intentional discrimination. She non-discriminato ry discharge reason which directly per- “dis- succeed this either hand, employer undisputed On other if the 11. It provided ac- is also that Met knowledges disability reliance legitimate non-discriminatory reason for decision, employer bears the termination-namely, Snead's the elimination showing disability burden of is rele- part of her of a in force. reduction job’s Mustafa, requirements. vant to the F.3d at 1176. Snead, thereby negating discriminatory similar manner as that a

suading the court light likely any showing pretext. the em- motivated reason more true, evidence, as we have although it is indirectly by showing ployer or above, is un- explanation noted that there are some inconsis- proffered employer’s as to the tim- worthy of credence. tencies in Met’s statements ing of to eliminate Snead’s its decision Bur Community Dept. Texas Affairs are MDM those inconsistencies position, dine, 450 U.S. not so as to show that Met’s reason great (1981) (citing McDonnell L.Ed.2d has pretextual. Consequently, Snead 804-05, at 93 S.Ct. 411 U.S. Douglas, a of material genuine failed to raise issue 1817). fact that Met’s nondiscriminato- legitimate, are approaches two “These pretex- ry for her termination was reason exclusive; kinds a two combination tual. to es may in some cases serve of evidence summary make pretext tablish so Against Employee Action C. Chuang, judgment improper.” brought against Snead also claim Furthermore, making at 1127. 659.030(l)(g) §of for violation McIntosh have necessarily does not showing, Snead “any person, makes it unlawful for which additional, independent evi to introduce or employer employee whether an Reeves, 120 dence of discrimination. See aid, incite, abet, compel or coerce the do- 2109; Chuang, 225 F.3d at S.Ct. ing of under any of acts forbidden recently Supreme “As reaffirm Court §§ to 659.5454or to 659.400 [Or.Rev.Stat. ] ed, disparate treatment can sur attempt to do Snead failed so.” Because summary judgment producing vive without genuine issue of material fact to raise a any beyond evidence of discrimination legitimate, nondiscriminatory that Met’s case, constituting facie if that prima h[er] pretextual, her termination was reason for genuine issue of material evidence raises abetting” claim “aiding against regarding employer’s fact the truth of the also fails. McIntosh Reeves, Id. proffered (citing reasons.” 2108). S.Ct. at IV. CONCLUSION suf Although provided Snead has entertaining hold that when We support an ficient evidence to inference summary judgment employ motions discrimination, has met her bur and thus arising ment cases discrimination case, den on her facie that evidence law, sitting diversity federal courts genuine issue of not sufficient raise a Douglas must bur apply McDonnell fact regarding material the truth of Met’s procedur den-shifting scheme as nondiscriminatory or proffered reasons here, Applying al rule. scheme likely discriminatory that a reason more that, although conclude she has made out her position. motivated Met to eliminate case, failed to raise prima facie Snead has Burdine, 450 U.S. at 101 S.Ct. of material fact that Met’s genuine issue contrary, pre 1089. On the pretextual. reason for her termination was prof sented Snead reinforces Met’s Accordingly, we affirm the district court’s justification. example, fered For Snead’s grant summary judgment favor of than months evidence shows less two defendants. eliminated, the position after was Snead’s AFFIRMED. also other Portland MDM confirms that eliminated. This evidence LAY, Dissenting: Judge, Circuit Met’s business decision to reduce its work I dissent. The issue before respectfully independent Oregon force Oregon disability interpreting also us is one disability. This evidence Snead’s law is to “be con- similarly Oregon statute. shows that at least one other (Todd) possible in a in manner was treated strued to extent situated that is consistent with similar provi See Erie R.R. Co. v. Tompkins, 304 U.S. sions of the federal Americans with Dis 58 S.Ct. 82 L.Ed. (1938); abilities Act.”1 Or.Rev.Stat. 659.449. Byrd v. Ridge Blue Rural Elec. Coop., However, appellate spe courts Inc., 356 U.S. 2 L.Ed.2d cifically reject the federal burden-shifting (1958). case, I am not aware of scheme applied by the majority in this any federal policy such as those discussed Jantzen, ease.2 See Henderson v. 79 in the majority opinion which should over 1322, 1323-24 Or.App. (1986). 719 P.2d ride application of the Oregon law in a (“A plaintiffs prima facie case employ [for diversity case. ment discrimination] does not disappear Furthermore, applying McDonnell merely because a defendant asserts a non Douglas principles to the facts of this case discriminatory reason may which may seems to be a complete non sequitur. This fact.”). not persuade the trier of Because is not a disparate treatment case of the the two different, statutes are this case sort which the McDonnell Douglas burden present does not an issue of whether the proof designed is to govern. Snead state or federal burden of proof should be does not contend that other employees applied. It seems axiomatic that in apply who were similarly situated were treated ing the Oregon statute we need to apply favorably more than her. Snead simply Oregon law which interprets that statute. claims that she has disability but is still words, In other it is incongruous for qualified to work with or without accom- federal court to prima dismiss a facie case modation. made under the Oregon disability statute Thus, on a even Oregon based if the proof parallels burden of law paradigm de ADA, signed the for disparate the of facts treatment case do cases fit not brought under a within the totally different McDonnell statutory Douglas framework. Rather, scheme. See Bultemeyer v. Fort the Wayne language of the ADA sets the Schools, Community threshold 1283- must Snead meet order to (7th Cir.1996). Byrd Erie and both defeat summary judgment. Snead must teach us that simply exchange (1) court (2) establish that disabled; she is she is rooms, law, not in deciding diversity qualified cases. to perform the essential functions Notably, 1. the statutory language of the plaintiff]” Ore- the in violation of Title VII. Texas gon phrased law is differently much than that Dept, Community Burdine, v. of Affairs of the ADA.The law states that is 248, 253, "[i]t U.S. 101 S.Ct. L.Ed.2d an unlawful employment practice for em- (1981). Accordingly, once a makes a ployer discharge to ... employment case, prima facie the burden shifts to the qualified person otherwise [because employer "to legitimate, articulate some non- person] is a person.” disabled Or.Rev.Stat. discriminatory allegedly reason” its dis- 659.436(1) (1999). § The ADAstates that an criminatory actions. Douglas, McDonnell employer “shall against [not] discriminate U.S. 93 S.Ct. 1817. If the em- qualified individual with a disability because so, ployer does disap- facie case disability of the of such in regard individual pears employee and the then must show that discharge to ... employees.” 42 U.S.C. employer's proffered pretext reasons were 12112(a). § for discrimination. See id. at 1817. 2. Douglas The McDonnell burden-shifting contrast, ADA analysis designed pro- was applied "to by the majority was fash- clear, consistent, strong, vide by ioned the Supreme enforceable analyze Court to claims brought standards” to under eliminate Title VII Rights Civil discrimination Act against of Green, See disabled Douglas McDonnell individuals. U.S.C. Corp. 12101(b)(2). 792, 802-06, such, § 411 U.S. As disparate unless S.Ct. (1973). 36 L.Ed.2d 668 similarly treatment with The Court others has ex- situated al- is plained leged, Douglas there statutory "[t]he McDonnell no divi- avenue sion of evidentiary intermediate ADA for an employer to burdens articulate nondis- bring litigants serves to criminatory and court ... reason for its actions or for an question to [the] ultimate [of whether the de- employer’s that the show reason intentionally fendant against pretextual. discriminated thus, not restore could MDM accommo- or without job, either not inter- will court job. The by- her (3) was terminated dation; she to insti- judgment business with Met’s fere Barnett disability. See of her reason that action unless (9th a reduction-in-force tute 1105, 1121 F.3d Air, U.S. Labor National law. See afoul of runs banc). employee can- Cir.2000) (en If the Club, Harrah’s Bd. v. Relations fact material issue genuine show a Cir.1964). fact Yet this 177, 180 judg- summary prongs, three any of the es- ability to to Snead's not fatal itself appropriate. isment disability link between a causal tablish agree I with that prong, first As for the not claim Snead does Met’s actions. that finds opinion majority’s of the part position she MDM particular right disputed fact issue genuine is a there either held, she under nor could formerly is disabled. Snead Thompson See Oregon law. or prima facie of Snead’s prong The second 537, 540 Hosp., Family Holy First, showing. two-part requires case Portland, 118 City Cir.1997); Winnett of 907 meets she demonstrate must Snead (1993). But P.2d Or.App. job. necessary prerequisites prove can assuming Snead 12111(8); 29 C.F.R. § 42 U.S.C. terminate disabled, Met can before Or.Rev.Stat. 1630.2(m); § ac- cf. reasonable other try provide must 659.436(2)(e). that Snead Met concedes opportuni- commodation func- the essential perform qualified presenting just did ties. Met she held position that MDM tions First, it offered options. three with Snead Next, Snead absence. leave prior to her of the Se- out continued her the essen- perform that she can show must than position lesser office, at a albeit attle or without job with of the functions Second, tial Met held. previously one she the 42 U.S.C. accommodation. See reasonable at a differ- position similar MDM offered 1630.2(m); § 12111(8); 29 C.F.R. § Finally, because cf. location. geographic ent 659.436(2)(e). many Unlike § Or.Rev.Stat. eliminated been had position former her to claimants, ask Met did not Snead ADA offered Snead Met company, the accom- way end, that would job in a her Met ter- alter In the package. severance pre- disability. Snead for fur- request modate when Snead minated position with- her MDM alternatives to these to return pared about information ther it was job as Met’s to the belies That excuse any late. modifications too out arrived words, other em- continued offering on leave. Snead sincerity went she before job back. company.3 her old for the asked Met with simply ployment is that she shown has point she this At disability the Assuming functions the essential perform qualified need ADA, the recognizes statute, the like ac- without with or the MDM inter- good-faith in a engage parties to for commodation. reasonable to arrive process active me there accommodation, it seems then pre- However, time by the Snead that still majority’s analysis gap is a work, Met had to return pared As this unresolved.4 this matter leaves her former eliminated reasons business the ac- employer] can demonstrate [the should not be tardiness hours’ "A few impose undue hard- an would commodation process interactive cutting off the reason of [the operation of the business ship on the person's rights cutting aoff 12112(b)(5)(A); § 42 U.S.C. employer].” at 1286. cf. Bultemeyer, ADA.” reg- 659.436(2)(e). ADA’s The § Or.Rev.Stat. appro- determine that: "To ulations unlawful discrimina- employer commits 4. An may be accommodation reasonable priate employer does "not if the the ADA tion under an initiate [employer] to necessary for the accommodations reasonable mak[e] informal, process [em- with interactive physical or mental limitations known accom- disability of the in need awith ployee] a disabili- qualified individual otherwise identify process should This modation. employee, unless applicant ty who is held, court has “[t]he process interactive is undue hardship in accommodating a dis- triggered by request either for accom- abled employee. See 42 U.S.C. by modation disabled byor § 12111(10); Kellogg v. Union cf. Pacific employer’s recognition of the need for R.R. Cir. Barnett, such an accommodation.” 228 2000) (recognizing that under the ADA “an F.3d at 1112. The process interactive employer required is not to make accom- mandatory at point requires modations that other, would subvert more “good-faith exploration of possible accom- qualified applicants for job.”); Or.Rev. modations between employers and individ- 659.436(2)(e). Stat. But that is not the ual employees.” See id. at 1114. It is situation here. Met has sought to reason- then employer’s burden to show that a ably accommodate by Snead offering her proposed accommodation will cause undue various By alternatives. its own actions Thus, hardship. id. at 1113. in light Met has shown that offers these for accom- proof Snead’s Met’s offer of accom- modations do not pose an undue hardship modation, there is still missing good- on its business. faith process interactive which should be available to both parties to attempt I Accordingly, fail to see how the resolve differences. Under the fore- McDonnell Douglas framework for dispa- going analysis, the issue of pretext, which rate treatment cases in any relates way to by addressed Douglas McDonnell the facts present Here, case. not- framework, is subsumed the issue of withstanding the elimination of Snead’s reasonable accommodation. Once a party previous position, Met, at initially, least shows she suffers from disability but is made an effort to accommodate her. qualified carry on work with or without There is no issue of pretext lurking in that. accommodation, the issue becomes wheth- The sole issue that remains is whether Met er employer has entered good- into a and Snead have in a engaged good-faith faith process interactive to find a reason- interactive process to determine whether able accommodation. question reasonable accommodation is feasible. accommodation is reasonable Without the clarification requested by will not cause the employer undue plaintiff, it seems to me that hardship. Pretext there exists should never be an is- sue in evidentiary gap ADA analysis. that needs to be filled Pretext relates to an employer’s subjective before this case motivation. can be decided. Reasonable accommodation relates to an I would therefore grant reverse the objective analysis of whether jobs other summary judgment and remand the case are available which quali- to the district court for further proceed- fied to do. ings. Nevertheless, the elimination of Snead’s job, reason, for whatever does preclude

further inquiry under the ADA. To survive

summary judgment Snead must demon- genuine

strate a issue of material fact as to parties

whether the engaged a good-

faith process interactive aimed at reason- able If accommodation. no jobs other ex-

ist, then the inquiry ends because it is

impossible under the circumstances for an

employer to accommodate the employee.

An employer is not required to undertake

precise resulting limitations 1630.2(o)(3). the disabili- C.F.R. Taylor See also ty potential Dist., reasonable accommodations Phoenuville Sch. 156-165 (3d could 1999). overcome those limitations.” 29 Cir.

Case Details

Case Name: Emily Snead v. Metropolitan Property & Casualty Insurance Company, a Delaware Corporation James McIntosh

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jan 23, 2001

Citation: 237 F.3d 1080

Docket Number: 99-35071

Court Abbreviation: 9th Cir.