Court: Court of Appeals for the Ninth Circuit; August 25, 2017; Federal Appellate Court
Plaintiff-Appellant Antonio Alamillo sued Defendant-Appellee BNSF Railway Company, alleging wrongful termination in violation of the California Fair Employment and Housing Act (FEHA) after being dismissed from his position as a locomotive engineer. The district court granted BNSF summary judgment, which was upheld on appeal.
In 2012, Alamillo opted for an 'extra board' schedule, which required him to respond to calls from BNSF for work. A failure to respond to three calls within 15 minutes resulted in being marked absent. Alamillo missed calls on ten occasions, opting for 'Alternative Handling' for three January calls, which led to additional training rather than discipline. Following subsequent missed calls, he received a 10-day suspension and later a 20-day suspension. BNSF's superintendent advised him to secure a landline or pager to avoid missing calls; however, Alamillo did not comply due to personal reasons.
Alamillo continued to miss calls and began suspecting a medical issue. After meeting with BNSF management to discuss a possible sleep disorder, he was advised to follow procedures to bid for a regular schedule. He later switched to a set schedule, successfully arriving on time. After undergoing a sleep study, he was diagnosed with obstructive sleep apnea and provided BNSF with medical documentation. Hearings regarding his missed calls were held in August following his diagnosis. BNSF’s disciplinary process involved an investigation-hearing, especially where dismissal was a potential outcome.
Alamillo presented his obstructive sleep apnea (OSA) diagnosis during hearings and provided Dr. Saketkhoo’s opinion indicating that not responding to a ringing phone falls within typical OSA symptoms. However, no medical expert linked his missed calls on May 21 and June 16 to his OSA. BNSF's Director of Labor Relations, Andrea Smith, reviewed relevant materials and recommended a 30-day suspension for the May 13 missed call, with dismissal for the subsequent calls. This recommendation was approved by BNSF officer Kirschinger, and Alamillo was informed of his dismissal on September 18. Alamillo's union appealed, resulting in his reinstatement. He subsequently filed a wrongful termination lawsuit against BNSF, alleging discrimination based on his disability, failure to accommodate, and lack of an interactive process regarding his disability accommodations, in violation of the Fair Employment and Housing Act (FEHA).
The district court granted BNSF summary judgment, determining that Alamillo's attendance issues occurred prior to his disability diagnosis and any accommodation request. Under FEHA, it is unlawful to discharge an employee due to a physical disability unless they cannot perform essential duties even with reasonable accommodations. To establish a prima facie case of discrimination, a plaintiff must demonstrate: (1) a disability, (2) qualification for the job, and (3) adverse employment action due to the disability. The burden-shifting framework from McDonnell Douglas applies, requiring the plaintiff to initially show a prima facie case, after which the employer must provide a legitimate reason for the adverse action. Alamillo's claim faltered at the first step, as there was no evidence that his OSA significantly influenced BNSF’s termination decision. Both parties acknowledged that BNSF was unaware of Alamillo's disability during the disciplinary process, and Alamillo conceded that his disability was not considered in the termination decision. Even if a prima facie case were established, the claim would fail at the third step of the McDonnell Douglas test.
BNSF dismissed Alamillo due to recurrent absenteeism, asserting he failed to provide evidence that this reason was false or discriminatory. Alamillo's argument relies on emails where Smith recommended his dismissal for missed calls, mentioning his disability only in relation to one missed call. Although Alamillo claimed his sleep apnea caused him to miss calls, he did not seek assistance until facing dismissal, which weakened his argument. Smith acknowledged the possibility of sleep apnea affecting Alamillo's phone alerts but did not change her decision, indicating that BNSF's reason for termination was sincere.
Alamillo cited Humphrey v. Memorial Hospitals Association to argue that his sleep apnea should be considered in relation to his absenteeism. However, the court found that there was no reasonable causal link between Alamillo's obstructive sleep apnea (OSA) and his attendance violations, contrasting with Humphrey's case where her behavior directly stemmed from her obsessive-compulsive disorder (OCD). Alamillo did not provide medical evidence that directly connected his OSA to the specific missed calls, leading to the conclusion that BNSF's termination decision was not discriminatory.
Alamillo's case differs from the plaintiff in Humphrey as he had multiple options to mitigate his attendance issues related to his OSA, such as changing his work hours or ensuring he could be contacted. His OSA contributed to his attendance violations, but primarily due to his own negligence, which means BNSF did not unlawfully discriminate against him by not adjusting his disciplinary outcomes. Under the Fair Employment and Housing Act (FEHA), employers must make reasonable accommodations for known disabilities and engage in a good faith interactive process with employees regarding such accommodations. However, reasonable accommodations do not include forgiving past misconduct or providing a 'second chance' for future control of a disability. Alamillo's request for BNSF to adjust his schedule and not terminate him for previous issues does not constitute valid reasonable accommodation claims, as BNSF had already accommodated his request for regular hours, and the other requests are not recognized under California law. His interactive process claim also fails because he did not identify a reasonable accommodation that could have addressed his prior absenteeism, which precludes liability under FEHA for not engaging in the process. Consequently, the district court's judgment is affirmed, with Alamillo responsible for the costs of the appeal.
