NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUL 06 2011
MOLLY C. DWYER, CLERK
HEIDI M. COÈ, No. 10-35729 U.S . CO U RT OF AP PE A LS
Plaintiff - Appellant, D.C. No. 6:09-cv-06059-HO
v.
MEMORANDUM *
WAL-MART STORES INC., a Delaware
foreign business corporation, DBA Wal-
Mart,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Oregon
Michael R. Hogan, District Judge, Presiding
Argued and Submitted June 10, 2011
Portland, Oregon
Before: FISHER, GOULD, and PAEZ, Circuit Judges.
Plaintiff-Appellant Heidi Cox ('Cox') appeals from the district court's order
granting summary judgment to Wal-Mart Stores Inc. ('Wal-Mart') on her claims
of discrimination in violation of the Americans with Disabilities Act ('ADA'),
retaliation in violation of Oregon's Worµers' Compensation Law ('OWCL'), and
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
failure to reinstate in violation of the Family and Medical Leave Act ('FMLA')
and the Oregon Family Leave Act ('OFLA'). We have jurisdiction pursuant to 28
U.S.C. y 1291, and we review de novo the district court's grant of summary
judgment, 'viewing all evidence in the light most favorable to the nonmoving
party.' Kraus v. Presidio Trust Facilities Div./Residential Mgmt. Branch, 572
F.3d 1039, 1042 (9th Cir. 2009) (internal quotation marµs and citations omitted).
We reverse and remand.
1. The district court granted Wal-Mart summary judgment on Cox's ADA
claim because (a) she was not a 'qualified individual' under the statute; and (b)
even if she were a 'qualified individual,' Wal-Mart met its burden to engage in an
interactive process of accommodation. We disagree with both conclusions.
The ADA requires that covered employers maµe 'reasonable
accommodations to . . . an otherwise qualified individual with a disability.' 42
U.S.C. y 12112(b)(5)(A). A 'qualified individual' is 'an individual with a
disability who, with or without reasonable accommodation, can perform the
essential functions of the employment position.' 42 U.S.C. y 12111(8). 'Essential
functions' are 'fundamental job duties . . . not includ[ing] the marginal functions
of the position.' Bates v. United Parcel Service, Inc., 511 F.3d 974, 989 (9th Cir.
2007) (en banc) (internal quotation marµs and citation omitted). We require that
2
'an employer who disputes the plaintiff's claim that he can perform the essential
functions must put forth evidence establishing those functions.' Id. at 991
(quoting EEOC v. Wal-Mart, 477 F.3d 561, 568 (8th Cir. 2007)) (internal quotation
marµs omitted).
Here, Cox offered evidence that she was able to perform the essential
functions of her job with accommodations. In May 2007, when Cox returned to
worµ after her fall, Wal-Mart afforded her several accommodations. In July 2007,
Cox received an evaluation from Wal-Mart which stated that her performance
'meets expectations.' Wal-Mart argues, however, and the district court agreed,
that Cox's statements to the Social Security Administration ('SSA') negate her
assertion that she is a 'qualified individual.' Much liµe the plaintiff in Cleveland
v. Policy Management Systems Corporation, 526 U.S. 795, 807 (1999), Cox
explained that these statements did not taµe into account what she was capable of
doing with accommodations, only without. As it was in Cleveland, this
explanation is sufficient to defeat Wal-Mart's motion for summary judgment. Id.
Moreover, Wal-Mart has not put forth any evidence establishing the essential
functions of Cox's position. We therefore reverse the district court insofar as it
found that Cox was not a qualified individual.
3
In addition, we disagree with the district court's conclusion that, even if Cox
is a qualified individual, Wal-Mart is entitled to summary judgment on Cox's ADA
claim because it fulfilled its obligation to engage in the interactive process of
accommodation. Once a qualified individual requests an accommodation, an
employer is required to 'engage in an interactive process with [her] to determine
the appropriate reasonable accommodation.' Zivµovic v. S. Cal. Edison Co., 302
F.3d 1080, 1089 (9th Cir. 2002). The interactive process requires '(1) direct
communication between the employer and employee to explore in good faith the
possible accommodations; (2) consideration of the employee's request; and (3)
offering an accommodation that is reasonable and effective.' EEOC v. UPS
Supply Chain Solutions, 620 F.3d 1103, 1110 (9th Cir. 2010) (quoting Zivµovic,
302 F.3d at 1089) (internal quotation marµs omitted).
Here, considering the facts in the light most favorable to Cox, Wal-Mart
failed to engage in the interactive process in good faith. No one told Cox that she
submitted her May 2008 leave of absence request on the wrong form. When Cox
requested an extension on a five-day deadline for returning additional leave
paperworµ in May 2008--because of a court subpoena--Wal-Mart rejected the
request. A reasonable jury could conclude from this evidence that Wal-Mart did
not engage in the interactive accommodation process in good faith. Therefore, Cox
4
has raised a genuine issue of material fact precluding summary judgment on this
issue. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
2. The district court found that Wal-Mart was entitled to summary judgment on
Cox's OWCL retaliation claim because she did not establish any causal
relationship between her inquiry into whether her injury might be covered under
OWCL and her termination. We disagree.
Oregon law provides that it is unlawful 'for an employer to discriminate
against a worµer because the worµer has . . . invoµed . . . the procedures provided
for in' OWCL. Or. Rev. Stat. y 659A.040(1). To establish a prima facie case of a
y 659A.040(1) violation, a plaintiff must show that (1) she invoµed the worµers'
compensation system; (2) that she was discriminated against, and (3) that the
employer discriminated against her because she invoµed the worµers'
compensation system. Kirµwood v. Western Hyway Oil Co., 129 P.3d 726, 729
(Or. Ct. App. 2006). A plaintiff may rely on circumstantial evidence in
establishing her prima facie case. See Herbert v. Altimeter, Inc., 218 P.3d 542, 548
(Or. Ct. App. 2009).
Here, considering the facts in the light most favorable to Cox, Wal-Mart
terminated her between seven and ten months after she invoµed her OWCL rights.
Cox has offered evidence that during those intervening months, Wal-Mart
5
disciplined her unjustifiably on three occasions, and refused to accommodate her,
even though before Cox invoµed her rights, Wal-Mart found her performance
acceptable and gave her accommodations. A reasonable jury could infer from this
evidence that Cox's termination was causally linµed to her invocation of her
OWCL rights. See Kirµwood, 129 P.3d at 728-29 (concluding that defendant was
not entitled to summary judgment on plaintiff's OWCL retaliation claim for lacµ of
causation where nearly three years passed between the plaintiff's invocation of
rights and termination, and the plaintiff admitted that some of his employer's
disciplinary measures against him after his invocation were legitimate). Because
there are material triable issues of fact, Wal-Mart is not entitled to summary
judgment on Cox's OWCL retaliation claim.
3. The district court found that Wal-Mart was entitled to summary judgment on
Cox's FMLA/OFLA failure to reinstate claim because it found that she did not
seeµ and Wal-Mart did not deny reinstatement. Again, we disagree.
We recently explained that '[t]he right to reinstatement [under the FMLA]. .
. is the linchpin of the entitlement theory.' Sanders v. City of Newport, --- F.3d
----, 2011 WL 905998, *5 (9th Cir. 2011) (internal quotation marµs omitted).
Construing the evidence in Cox's favor, the record does not support the district
court's conclusion that Cox never sought reinstatement. In mid-April 2008, when
6
Cox's FMLA leave was nearly exhausted, she met with a Wal-Mart human
resources employee. According to that employee, '[Cox] had expressed wanting
to come bacµ to worµ'; 'She wanted to come bacµ.' This evidence creates a
factual question as to whether Cox sought reinstatement and whether Wal-Mart
interfered with her FMLA entitlement to it. Thus, Wal-Mart is not entitled to
summary judgment on this claim.
REVERSED and REMANDED.
7
FILED
Cox v. Wal-Mart, No. 10-35729 JUL 06 2011
MOLLY C. DWYER, CLERK
GOULD, J., dissenting in part: U.S . CO U RT OF AP PE A LS
I concur in Parts I and III, but I respectfully dissent from Part II. The
majority taµes the logical fallacy of post hoc ergo propter hoc to new heights. I
cannot agree that Cox, by showing only that she was disciplined and terminated
after she asµed about worµers' compensation, has raised a genuine issue of fact
about a causal linµ between her invocation of the system and her termination.
Because Cox has not met her prima facie burden under Oregon law, I would affirm
the district court's grant of summary judgment for Wal-Mart on the retaliation
claim.
To prevail on a retaliation claim under Oregon Revised Statute section
659A.040(1), Cox must show that Wal-Mart discriminated against her because she
invoµed the worµers' compensation system. While it is true that 'in some cases,
causation can be inferred from timing alone where an adverse employment action
follows on the heels of protected activity,' such an inference only arises when 'the
termination . . . occurred fairly soon after the employee's protected expression.'
Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1065 (9th Cir. 2002) (internal
quotation marµs and citation omitted) (collecting cases and noting that periods as
short as four months were 'too long' to support the causal inference). Here, Cox
was terminated more than seven months after she invoµed the worµers'
compensation system. That fact, without more, does not support an inference of
retaliatory motive.
Moreover, under our established precedent, even assuming Cox met her
prima facie burden, that is not the end of the inquiry. See McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973) (holding that the burden shifts to the
employer 'to articulate some legitimate, nondiscriminatory reason for the
employee's rejection.').1 If the employer supplies a legitimate, nondiscriminatory
reason for its actions, the burden shifts to the plaintiff, who must then show that the
reason provided by the employer was pretext for an impermissible reason. Id. at
804. Wal-Mart provided legitimate reasons for its disciplinary steps, but Cox did
not adduce any evidence that Wal-Mart's stated reasons were pretextual. Instead,
Cox alleges that the discipline she received was unfair; but a bare allegation falls
short of establishing retaliation. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.
1989) ('A summary judgment motion cannot be defeated by relying solely on
conclusory allegations unsupported by factual data.').
I respectfully dissent as to Part II.
1
We have held that 'the McDonnell Douglas burden-shifting scheme is
federal procedural law' and that it applies to claims brought under Oregon Revised
Statute section 659A. Snead v. Metro. Prop. & Cas. Ins. Co., 237 F.3d 1080, 1092
(9th Cir. 2001).