KELLY v. BOEING COMPANY (2021)

United States Court of Appeals, Ninth Circuit.2021-03-05No. No. 19-35788

Summary · law.co

Holding. The appellate court affirmed the district court's summary judgment in favor of Boeing, finding no evidence supporting Kelly's claims of failure to accommodate under disability law, discrimination, retaliation, or wrongful discharge based on family leave.

Michael Kelly, a Boeing machinist with celiac disease and gout that caused urination difficulties, was terminated in January 2017 after two test administrators witnessed him attempting to tamper with a urine sample during a drug test. Kelly had signed a Last Chance Agreement in 2015 agreeing to unannounced drug and alcohol testing, with tampering being grounds for dismissal. Kelly appealed the district court's summary judgment, bringing claims under disability discrimination statutes, retaliation laws, and family leave protections.

The appellate court found no evidence supporting any of Kelly's claims. Regarding disability accommodation, Kelly had successfully completed fifteen prior drug tests and only requested accommodation after the testing had commenced and tampering was observed—too late and under circumstances suggesting the request was pretextual. Boeing had a policy accommodating urination difficulties by referring employees to physicians if they could not produce a sample within three hours, but this policy had not yet been triggered when the tampering was reported. On discrimination and retaliation claims, Boeing presented the legitimate, non-discriminatory reason for termination: witness reports of tampering, which was explicitly prohibited under the Last Chance Agreement. Kelly provided no evidence that this reason was pretextual or that knowledge of his intent to take family leave influenced the termination decision.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether Kelly was entitled to reasonable accommodation under the ADA for difficulty urinating
Whether Kelly established discrimination claims under the ADA using the burden-shifting framework
Whether temporal proximity alone could establish a prima facie retaliation case
Whether Kelly demonstrated that FMLA leave was a negative factor in the termination decision

Procedural posture

Kelly appealed the district court's grant of summary judgment in favor of Boeing regarding his claims under the ADA, Oregon Rehabilitation Act, Title VII, FMLA, Oregon Family Leave Act, and for wrongful discharge.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM **

Appellant Michael Kelly (“Kelly”) appeals the district courts summary judgment in favor of Appellee The Boeing Company (“Boeing”). We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

Boeing employed Kelly as a machinist from February 2011 to January 2017. Relevant to this appeal, Kelly was diagnosed with celiac disease in or around 2010 and suffered from gout a number of years prior to 2017. Due to these medical conditions, Kelly has difficulty urinating. In September 2015, Kelly entered into a “Last Chance Agreement” with Boeing wherein Kelly agreed to be subject to unannounced drug and alcohol testing for three years. The Last Chance Agreement provided that a “refusal to test,” which included “tampering or otherwise invalidating by any means ․ or failure to cooperate in any part of the testing process,” would be grounds for termination. On approximately January 12, 2017, Boeing terminated Kelly for attempting to tamper with a urine sample.

1. There is no evidence supporting Kellys failure to accommodate claims under the American with Disabilities Act (“ADA”) and the Oregon Rehabilitation Act (“ORA”).

“The ADA treats the failure to provide a reasonable accommodation as an act of discrimination if the employee is a ‘qualified individual,’ the employer receives adequate notice, and a reasonable accommodation is available that would not place an undue hardship on the operation of the employers business.” Snapp v. United Trans. Union, 889 F.3d 1088, 1095 (9th Cir. 2018), cert. denied sub nom. Snapp v. Burlington N. Santa Fe Ry. Co., ––– U.S. ––––, 139 S. Ct. 817, 202 L.Ed.2d 577 (2019). Prior to January 12, 2017, Kelly had successfully completed fifteen unannounced urine tests. On January 12, 2017, for the first time, Kelly requested an accommodation—to be taken to a physician because he was having difficulty urinating—after drug testing had commenced and after engaging in behavior which led test administrators to believe that Kelly was attempting to tamper with the urine sample. Even if Kellys request for an accommodation under these circumstances were adequate notice, there is no dispute that Boeing had an accommodation in place for an inability to urinate. Under Boeings policies, Kelly would have been taken to a physician, if he could not urinate within three hours of the last collection attempt. Kelly was not taken to a physician because three hours had not passed when the first test administrator reported witnessing Kelly attempting to tamper with the urine sample. Kelly does not put forth any evidence demonstrating otherwise.

2. There is also no evidence supporting Kellys discrimination claims. ADA discrimination claims are analyzed under the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Mayo v. PCC Structurals, Inc., 795 F.3d 941, 944 (9th Cir. 2015). Assuming Kelly established a prima facie case of discrimination, Boeing provided a legitimate nondiscriminatory reason for terminating Kelly—two test administrators reported witnessing Kelly tamper with the urine test. Tampering with a urine sample was grounds for termination under the Last Chance Agreement. Kelly did not put forth any direct or circumstantial evidence demonstrating that Boeings nondiscriminatory reason was pretextual. See Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1062 (9th Cir. 2002).

3. Kellys retaliation claims similarly fail. “A prima facie case of retaliation requires a plaintiff to show: (1) involvement in a protected activity, (2) an adverse employment action and (3) a causal link between the two.” Coons v. Secy of U.S. Dept. of Treasury, 383 F.3d 879, 887 (9th Cir. 2004). Even if Kelly established a minimal prima facie case based on temporal proximity, temporal proximity alone is insufficient evidence of pretext in light of the substantial evidence that Boeing received reports that Kelly attempted to tamper with the urine sample. See Hashimoto v. Dalton, 118 F.3d 671, 680 (9th Cir. 1997).

4. Next, there is no evidence supporting Kellys claims under the Family and Medical Leave Act (“FMLA”) and the Oregon Family Leave Act (“OFLA”).

It was Kellys burden to demonstrate that FMLA leave was a negative factor in the decision to terminate him. See Bachelder v. Am. W. Airlines, Inc., 259 F.3d 1112, 1125 (9th Cir. 2001) (“[The employee] need only prove by a preponderance of the evidence that her taking of FMLA-protected leave constituted a negative factor in the decision to terminate her.”). According to Kelly, he notified Supervisor Mark MacKinnon of his intent to take FMLA leave before his shift began on January 11, 2017. However, Boeing presented evidence that MacKinnon retired from Boeing five years prior to the date at issue. In any event, even if Kelly notified a supervisor of his intent to take leave, there is no evidence that the decisionmaker in Kellys termination had any knowledge of Kellys intent to take leave. The only evidence in the record is that the decisionmaker terminated Kelly after two test administrators reported that Kelly was attempting to tamper with a urine test.

5. For the reasons discussed above, there is also no evidence showing that Kellys protected activity, FMLA or OFLA leave, was a “substantial factor” in Boeings motivation to terminate Kelly such as to support a wrongful discharge claim. See Sheppard v. David Evans & Assoc., 694 F.3d 1045, 1051 (9th Cir. 2012) (“[A] plaintiff must establish a causal connection between a protected activity and the discharge. A causal connection requires a showing that the employees protected activity was a substantial factor in the motivation to discharge the employee.” (internal quotations omitted) (citation omitted)).

Affirmed.

FOOTNOTES

. Claims under the ORA are evaluated using the same legal standard as the federal ADA. Snead v. Metropolitan Property & Cas. Ins. Co., 237 F.3d 1080, 1087 (9th Cir. 2001). Accordingly, we discuss the ADA and ORA claims together.

. OFLA claims are construed “to the extent possible in a manner that is consistent with any similar provisions of the federal” FMLA. Or. Rev. Stat. § 659A.186(2). Accordingly, we discuss the FMLA and OFLA claims together.