concurring in part and dissenting in part.
I agree with the majority’s conclusion that Arrowhead’s termination of Umble did not, in itself, constitute a violation of the ADA..However, I would hold that Umble has adequately raised the claim that Arrowhead failed to accommodate her disability in January 1996 when it threatened her with termination for attendance difficulties which it knew were caused by her migraine headaches. In her opposition to the defendants’ motion for summary judgment/cross-motion for partial summary judgment, Umble argued that Arrowhead violated the ADA in part because “it refused [her] request for a modified work schedule,” and discussed at length the reprimands threatening termination if her absenteeism continued as well as the evidence that Arrowhead was aware that her attendance problems were caused by her migraines. Umble renewed these arguments in her briefs on appeal. Although her complaint is inartfully pled, the defendants had adequate notice from Umble’s summary judgment papers that Arrowhead’s actions in January 1996 regarding her absenteeism difficulties, as well as the events leading up to her termination in September, were at issue; indeed, in the statement of facts in opposition to the motion for summary judgment, Umble devotes as much space to the discipline for absenteeism as to the termination decision. I would therefore hold that Umble has adequately raised this claim, and that Arrowhead failed to engage in the ADA-mandated interactive process in January 1996 when it threatened Umble with termination without attempting to explore with her possible accommodations for her *758migraine condition. Barnett v. U.S. Air, 228 F.3d 1105, 1114 (9th Cir.2000) (en banc), cert. granted, — U.S. -, 121 S.Ct. 1600, 149 L.Ed.2d 4678 (2001). Whether or not, for purposes of damages, Umble’s termination was a consequence of that alleged violation is an issue I also believe to have been properly preserved. Accordingly, I would reverse the grant of summary judgment.
I recognize that the majority’s statement that Umble failed to assert an independent ground for liability with respect to the January meeting is not without merit. I would, however, give a more generous, dare I say liberal, reading to the papers filed by a civil rights plaintiff and am most reluctant to forfeit what appears to be a valid disability claim because of perceived inadequacies in the pleadings or motions papers. Indeed, I do not think it was necessary to do so in this case.