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Snapp v. United Transportation Union

United States Court of Appeals, Ninth Circuit

May 11, 2018

Danny Snapp, Plaintiff-Appellant,
v.
United Transportation Union, Defendant, and Burlington Northern Santa Fe Railway Company, Defendant-Appellee.

          Argued and Submitted November 8, 2017

          Appeal from the United States District Court for the Western District of Washington No. 3:10-cv-05577-RBL Ronald B. Leighton, District Judge, Presiding

          Stephen L. Brischetto (argued), Law Offices of Stephen L. Brischetto, Portland, Oregon, for Plaintiffs-Appellants.

          Britenae M. Pierce (argued), Shannon J. Lawless and James M. Shaker, Ryan Swanson & Cleveland, PLLC, Seattle, Washington, for Defendant-Appellee.

          Before: Ferdinand F. Fernandez, William A. Fletcher, and Michael J. Melloy, [*] Circuit Judges.

         SUMMARY[**]

         Employment Discrimination

         The panel affirmed the district court's judgment, after a jury trial, in favor of Burlington Northern Santa Fe Railway Co., the defendant in an action alleging a failure to accommodate under the Americans with Disabilities Act.

         The panel held that the ADA treats the failure to provide a reasonable accommodation for a disability 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 employer's business. Notifying an employer of a need for an accommodation triggers a duty to engage in an "interactive process." If an employer receives notice and fails to engage in the interactive process, the employer will face liability if a reasonable accommodation would have been possible. If an employer fails to engage in good faith in the interactive process, the burden at the summary-judgment phase shifts to the employer to prove the unavailability of a reasonable accommodation.

         In an earlier appeal, a prior panel reversed the district court's summary judgment in favor of BNSF and stated: "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." The panel concluded that this statement was not law of the case, but rather a less-than-complete statement of law.

         The panel held that at trial, unlike at the summary judgment phase, the burden of proof does not shift, and the plaintiff bears the burden of proving that the employer could have made a reasonable accommodation that would have enabled the plaintiff to perform the essential functions of the job. The panel rejected the argument that the plaintiff has only a burden of production, rather than a burden of proof. Accordingly, the district court's jury instructions were correct.

         Affirming the district court's denial of the plaintiff's motion for judgment as a matter of law, and agreeing with the Tenth Circuit, the panel held that BNSF was not bound by admissions made in a deposition of a corporate designee for BNSF pursuant to Fed.R.Civ.P. 30(b)(6), such that the jury should not have been allowed to consider other evidence.

          OPINION

          MELLOY, Circuit Judge:

         Plaintiff Danny Snapp brought this action against the United Transportation Union (the "Union") and his former employer, Burlington Northern Santa Fe Railway Company ("BNSF"), alleging a failure to accommodate under the Americans with Disabilities Act ("ADA"). A jury returned a defense verdict, and Snapp appeals. At trial, the parties disputed whether Snapp had requested an accommodation. In addition, the parties disagreed as to whether and how the jury instructions should address the "interactive process, " i.e., the statutorily required collaborative effort for identifying an employee's abilities and an employer's possibly reasonable accommodations. Snapp argues the district court improperly rejected a proposed instruction that would have imposed liability on BNSF merely for failing to engage in the interactive process, regardless of the availability of a reasonable accommodation. Snapp also argues the district court improperly rejected a proposed jury instruction that would have described his overall burden of proof as a mere burden of production rather than as an ultimate burden of persuasion. Finally, Snapp argues the district court erred by refusing to treat statements by BNSF's Federal Rule of Civil Procedure 30(b)(6) corporate representative as binding admissions. We find no error and affirm the judgment of the district court.

         I. Background

         Snapp worked for BNSF from 1971 through 1999. He rose through the ranks, becoming a Division Trainmaster in 1986. Due to tiredness and low energy, he went to a doctor in 1994. He was diagnosed with sleep apnea and had surgeries in 1996 and 1998 in unsuccessful attempts to correct his condition.

         In 1999, BNSF received a report from Snapp's physician. Snapp's supervisor told Snapp he did not believe Snapp could work in a safe manner. In 1999, Snapp took a "fitness for duty" evaluation, was determined to be totally disabled, and went on short-term disability leave. He applied for long-term disability benefits through CIGNA, the third-party administrator for BNSF's disability plan. In February 2000, BNSF's medical director told Snapp that CIGNA had approved Snapp's claim for disability benefits and that, should CIGNA later find him ineligible, he should contact BNSF's medical director to plan a "return to work." Snapp began a period of long-term disability leave and received payments from CIGNA.

         In 2005, CIGNA requested a sleep study to verify Snapp's continuing disability. When Snapp arrived at a clinic for the study, the clinic asked him to sign a release accepting personal financial responsibility for the test. He refused and did not complete the study. In November 2005, CIGNA terminated Snapp's disability benefits citing an absence of evidence of continuing disability.

          At that time, Snapp did not request an accommodation or apply to return to work. Rather, he appealed CIGNA's denial of benefits, filed complaints with governmental entities, and copied BNSF on his appeal letter. CIGNA notified BNSF in November 2007 that it had denied Snapp's appeal and Snapp was no longer eligible for long-term disability.

         Also in November 2007, Snapp wrote to BNSF demanding reinstatement of his disability payments, demanding reimbursement for overpayment of life-insurance premiums, and threatening to sue BNSF. He called to follow up on the letter. He did not ask to return to employment in either the letter or the call.

         On January 2, 2008, BNSF representative Lori Emery sent Snapp a letter telling him that, in accordance with the BNSF Long-Term Disability Plan, he had sixty days to secure a position with BNSF or he would be dismissed. The letter stated, "BNSF is under no obligation to provide you with a salaried position if you are released to return to work by your physician." Emery invited Snapp to contact her directly and copied Dane Freshour, BNSF's Regional Director of Human Resources.

         On January 6, 2008, Snapp wrote back a letter addressing primarily the denial of disability benefits and attaching several documents. Snapp's letter stated, "Your letter does nothing to address my letter dated November 10, 2007! . . . I was in hopes that BNSF Railway would assist me in my endeavor with CIGNA . . . . For several years I have attempted to get BNSF Railway to correct the ongoing malicious administration of the Disability contract(s) . . . ." Snapp also stated he would "more than welcome your offer to return to BNSF employment without discrimination of my situation . . . ." He attached to his letter several pages related to the CIGNA policy regarding CIGNA's payment for rehabilitation and reasonable accommodation costs. He also attached a doctor's note dated April 2007 in which the doctor stated, "I do not feel . . . it is safe for you to return to work." In the alternative, Snapp asked for "[a] continued and on going Long Term Disability leave of Absence until this is presented in a court of law regarding CIGNA discontinued benefits through malicious administration and breach of the BNSF . . . Welfare Plan."

         Emery wrote to Snapp on January 10. She confirmed receipt of his November 2007 and January 2008 letters and reported having resolved the life-insurance-premium overpayment issue, stating a refund check was on its way. Regarding disability benefits, she reiterated that CIGNA was solely responsible for plan administration and he should deal with CIGNA directly. In doing so, she referenced a 2006 communication from BNSF to Snapp's attorney conveying the same information. Emery reported that BNSF was standing by the sixty-day window to secure employment, cited a website for accessing current openings, and identified Freshour as the human resources representative for Snapp's geographic region.

         Snapp neither visited the website nor contacted Freshour. Before the end of the sixty-day period, however, Snapp contacted the Union to ask about his seniority for a yardmaster position. The Union told him he lacked the requisite seniority. Notwithstanding this information, he sent a letter dated February 28, 2008, to a BNSF facility in Vancouver, Washington, seeking to displace a senior yardmaster for a position and asking for an immediate ninety-day medical leave beginning March 2 "to finalize medical testing with the slight possibility of surgery for correction of my long and existing condition." Snapp attached to his February 28 letter a note from a Veterans Affairs neurologist who stated:

Thank you for your recent correspondence and request for clarification of my recommendations from January 14, 2008. As I stated previously, light-duty work can be considered after treatment is further optimized (oral appliance therapy) but the following restrictions would need to apply: daytime work only (no shift work); restriction to 8 hours of duty at the maximum (no mandated overtime)[;] and no working with heavy equipment. An office job that didn't involve any activity during which time if you [fell] asleep you could cause injury to yourself or other[s] is what I would recommend.

(Emphasis added).

         BNSF checked with the Union regarding Snapp's seniority and discovered he lacked the requisite seniority. Because the sixty-day window had expired, BNSF terminated his employment. Snapp challenged the Union's determination, and the Union explained he had not been a member since 1982. Snapp continued to communicate with BNSF through at least Spring 2009, seeking to exercise seniority rights for a brakeman position. BNSF directed him to the company website to apply for open positions. Snapp then pursued a claim against BNSF through the Public Law Board concerning his attempted exercise of seniority rights. The Board ruled in favor of BNSF. Snapp did not apply for any positions with BNSF other than the Vancouver yardmaster job in 2008 and the brakemaster job in 2009 (his post-termination attempt).

         Snapp sued BNSF in August 2010 alleging a failure to provide a reasonable accommodation. BNSF moved for and was granted summary judgment. The Ninth Circuit reversed, finding a genuine dispute of material fact as to whether Snapp requested an accommodation so as to trigger BNSF's duty to engage in the interactive process. Snapp v. United Transp. Union, 547 Fed.Appx. 824, 826 (9th Cir. 2013) (unpublished memorandum disposition). On remand, BNSF and Snapp each moved for summary judgment. The district court denied the motions. As relevant to the present appeal, Snapp argued that, in a Federal Rule of Civil Procedure Rule 30(b)(6) ...


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