FILED
NOT FOR PUBLICATION
FEB 22 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HILYALE MAKOR, an individual, No. 15-55602
Plaintiff-Appellant, D.C. No.
5:14-cv-00671-VAP-SP
v.
BURLINGTON NORTHERN SANTA FE MEMORANDUM*
RAILWAY COMPANY, a Delaware
corporation,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, Chief Judge, Presiding
Argued and Submitted February 8, 2017
Pasadena, California
Before: SCHROEDER, DAVIS,** and MURGUIA, Circuit Judges.
In July 2012, Hilyale Makor, who worked as a train master for Burlington
Northern Santa Fe Railway Company (“BNSF”) in San Bernardino, California,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Andre M. Davis, United States Circuit Judge for the
U.S. Court of Appeals for the Fourth Circuit, sitting by designation.
was diagnosed with situational anxiety. Makor took medical leave from July 20,
2012 until his return on March 17, 2013. Throughout that time period, Makor’s
physicians sent BNSF a series of notes extending Makor’s medical leave without
indicating when Makor might resume work; in fact, the final two notes stated that
Makor was “totally incapacitated” and did not provide a definite return date.
On October 17, 2012, BNSF acted pursuant to its company policy and
replaced Makor while he remained out on paid leave. Once Makor’s leave benefits
expired, BNSF afforded him 60 days to find a new position with the company.
When Makor failed to do so, BNSF terminated him according to its company
policy. Makor filed suit against BNSF, alleging six claims under California’s Fair
Employment and Housing Act (“FEHA”). The district court granted summary
judgment in favor of BNSF on all six claims. We affirm.
We review a district court’s grant of summary judgment de novo.
Entrepreneur Media v. Smith, 279 F.3d 1135, 1139–40 (9th Cir. 2002).
1. The district court did not err in granting summary judgment on Makor’s
claims alleging failure to accommodate and failure to engage in the interactive
process. See Cal. Gov’t Code §§ 12940(m), (n). To prevail on both of these claims,
a plaintiff must demonstrate that a reasonable accommodation was available.
Swanson v. Morongo Unified Sch. Dist., 181 Cal. Rptr. 3d 553, 566 (Ct. App.
2
2014) (holding that a plaintiff must show the availability of reasonable
accommodation to prevail on a failure-to-accommodate claim); Nadaf-Rahrov v.
Neiman Marcus Grp., Inc., 83 Cal. Rptr. 3d 190, 214 (Ct. App. 2008) (“[A]n
employer may be held liable for failing to engage in the good faith interactive
process only if a reasonable accommodation was available.”). Makor argues that
BNSF could have accommodated him by providing job protection for the duration
of his leave or by reassigning him upon his return to work.
a. Job-protected leave for a fixed period can be an accommodation, but
indefinite leave is not reasonable as a matter of law. Hanson v. Lucky Stores, Inc.,
87 Cal. Rptr. 2d 487, 494 (Ct. App. 1999). “[T]he mere fact that a medical leave
has been repeatedly extended does not necessarily establish that it would continue
indefinitely. In some circumstances, an employer may need to consult directly with
the employee’s physician to determine the employee’s medical restrictions and
prognosis for improvement or recovery.” Nadaf-Rahrov, 83 Cal. Rptr. 3d at 222.
Here, even if BNSF had inquired into Makor’s situation before replacing him, it is
unclear what such an inquiry would have revealed. The evidence shows that
Makor’s physicians did not provide any concrete return dates and continued to
describe him as “totally incapacitated” between October 2012 and March 2013.
Makor has not provided any evidence that the duration of his leave would
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somehow have been more concrete if BNSF had only contacted his physicians.
Therefore, Makor has failed to show that job-protected leave was available as a
reasonable accommodation.
b. Under the FEHA implementing regulations, reassignment is available
to accommodate a returning employee who suffers from the lingering effects of a
disability. See Cal. Code Regs. tit. 2, §§ 11068(d)(1), (g). Here, Makor was not
entitled to reassignment because he returned to work without restrictions, and he
has not provided any evidence that he continued to experience residual limitations
related to his situational anxiety. Therefore, Makor has failed to show that
reassignment was available as a reasonable accommodation.
2. The district court did not err in granting summary judgment on Makor’s
claims alleging disability discrimination and retaliation. See Cal. Gov’t Code §§
12940(a), (h). Both of these claims are analyzed under the McDonnell Douglas
burden-shifting framework, which proceeds in three steps: (1) the plaintiff must
establish a prima facie case of discrimination or retaliation; (2) the employer must
then articulate a legitimate, nondiscriminatory reason for the adverse employment
action; and (3) the plaintiff must show that the employer’s stated reason is
pretextual. Yanowitz v. L’Oreal USA, Inc., 116 P.3d 1123, 1130 (Cal. 2005).
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Even assuming Makor established a prima facie case of discrimination or
retaliation, his claims fail at the second and third steps of the McDonnell Douglas
analysis. Turning to the second step, BNSF has articulated a nondiscriminatory
reason by presenting evidence that it terminated Makor pursuant to a pre-existing,
neutral policy. Raytheon Co. v. Hernandez, 540 U.S. 44, 55, (2003) (“If petitioner
did indeed apply a neutral, generally applicable no-rehire policy in rejecting
respondent’s application, petitioner’s decision not to rehire respondent can, in no
way, be said to have been motivated by respondent’s disability.”). As to the third
step, Makor has not presented any evidence of pretext.
3. The district court did not err in granting summary judgment on Makor’s
claim alleging failure to prevent discrimination. See Cal. Gov’t Code § 12940(k).
“[C]ourts have required a finding of actual discrimination or harassment under
FEHA before a plaintiff may prevail under section 12940(k).” Carter v. California
Dep’t of Veterans Affairs, 135 P.3d 637, 645 n.4 (Cal. 2006). Makor has not
prevailed on his discrimination or harassment claims under FEHA.
4. The district court did not err in granting summary judgment on Makor’s
claim alleging wrongful discharge because Makor has not shown that he was
discharged in violation of FEHA.
AFFIRMED.
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