FILED
NOT FOR PUBLICATION NOV 05 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANNY SNAPP, No. 12-35714
Plaintiff - Appellant, D.C. No. 3:10-cv-05577-RBL
v.
MEMORANDUM*
UNITED TRANSPORTATION UNION,
Defendant,
And
BURLINGTON NORTHERN & SANTA
FE RAILWAY COMPANY,
Defendant - Appellee.
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Argued and Submitted October 10, 2013
Seattle, Washington
Before: TASHIMA, GRABER, and MURGUIA, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Danny Snapp appeals from the district court’s grant of summary judgment to
Burlington Northern Santa Fe Railway (“BNSF”) on his discrimination claim
under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12112, and
related Washington state law claim for wrongful discharge. We reverse and
remand for further proceedings.
Once a disabled employee has given an employer “notification of [his]
disability and the desire for accommodation,” Vinson v. Thomas, 288 F.3d 1145,
1154 (9th Cir. 2002) (citing Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1114 (9th Cir.
2000) (en banc), vacated on other grounds, 535 U.S. 391 (2002)), “there is a
mandatory obligation to engage in an informal interactive process ‘to clarify what
the individual needs and identify the appropriate accommodation.’” Id. (quoting
Barnett, 228 F.3d at 1112). “[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.
Prior to being terminated by BNSF for failure to secure a new position with
the company following an extended disability leave, Snapp had sent BNSF a job
application letter and a letter from his physician that referred to his ongoing
disability and to his need for accommodations to perform certain tasks. While the
purpose of the letter may be unclear, it would not be unreasonable for a fact-finder
to determine that the letter was a notification of his disability and desire for
accommodation, which may have included reassignment to an appropriate position.
42 U.S.C. § 12111(9)(B). Such a request would have obligated BNSF to engage in
an interactive process with Snapp. Consequently, there is a genuine dispute over
whether BNSF engaged in good faith in a required interactive process, and failure
to do so would constitute discrimination under the ADA. 42 U.S.C. § 12112(b)(5);
29 C.F.R. § 1630.2(o)(3). It was not possible to grant summary judgment to BNSF
based on the conclusion that “BNSF did not terminate Snapp because of his
disability” where there was a dispute over whether Snapp’s termination resulted
from BNSF’s failure to engage in a mandatory interactive process.
Similarly, the district court erred in granting summary judgment to BNSF on
Snapp’s wrongful discharge claim because BNSF offered a “justification . . . for
Snapp’s termination [that] is completely divorced from any possible public policy
at issue.” Terminating an employee because of his disability would “jeopardize the
public policy against discrimination.” Becker v. Cashman, 114 P.3d 1210, 1215
(Wash. Ct. App. 2005) (citing Wash. Rev. Code § 49.60.180). Because there is a
genuine dispute over whether Snapp’s termination occurred as a result of BNSF’s
failure to respond appropriately to requested disability accommodations, summary
judgment was not available to BNSF on this record.
REVERSED and REMANDED.