Ninth Circuit Court of Appeals Holds That Forgiving Past Misconduct Is Not a Reasonable Accommodation


In the recent case of Alamillo v. BNSF Railway Co., _ F.3d. _, 2017 WL 3648514 (August 25, 2017), the Plaintiff-Appellant Antonio Alamillo filed suit against Defendant-Appellee BNSF Railway Company (BNSF), claiming that it had terminated him from his job as a locomotive engineer in violation of the California Fair Employment and Housing Act (FEHA), Cal. Gov. Code § 12940 et seq. Alamillo specifically contended that he was discriminated against because of his alleged disability, “obstructive sleep apnea” (OSA), because that condition allegedly caused him to miss six calls to work over a three-month period which resulted in his termination. He also contended that BNSF failed to reasonably accommodate his OSA by excusing the past missed calls once it learned of his condition.

The Railway’s conduct rules provided that an employee could be dismissed for five missed calls in a twelve-month period. After his fourth missed call occurred in May 2012, he was asked to attend an “investigation” hearing before a carrier and rail union representative as provided under his union contract, and was subsequently asked to attend separate investigations resulting from his missed calls in late May and June 2012. Only after his last missed call did he seek a medical opinion regarding his condition, and a doctor issued a preliminary diagnosis in August 2012 that Alamillo’s failure to hear his phone was within the “array of symptoms of OSA.” Alamillo then used this “diagnosis” as a means of attempting to ward off his termination at the investigations that were conducted just after the diagnosis was received.

The district court granted summary judgment to BNSF, and the Ninth Circuit Court of Appeals affirmed. With respect to the discrimination claim, the Ninth Circuit held that there was no evidence that BNSF’s decision to terminate Alamillo was motivated by his alleged disability, and that insufficient evidence existed that the alleged condition caused his missed calls. Instead, the court concluded that the missed calls may have been caused by a number of “non-OSA factors,” such as failing to install a landline instead of relying on his cell phone to wake him up every day, refusing to ask his wife to wake him when his phone rang, or not using his union seniority to bid on a job with regular hours instead of continuing to work in a position with an irregular schedule.

Even more significantly, however, in the first published decision on the issue, the Ninth Circuit held that exercising leniency by excusing an employee’s past misconduct is not a reasonable accommodation under FEHA. Citing the EEOC Reasonable Accommodation Guidance, the court stated that because reasonable accommodation is “always prospective, an employer is not required to excuse past misconduct even if it is a result of an individual’s disability.” The court also rejected Alamillo’s claim that BNSF failed to engage in the interactive process after his attendance violations had already occurred, because no reasonable accommodation could have cured his prior absenteeism at that point. It is these holdings that the case is likely to be cited for the most in the future, and which will provide the greatest benefit to employers faced with similar dilemmas of whether to fire employees who present evidence of an alleged disability at the time of termination.

BNSF was represented throughout by AALRR attorneys Ronald Novotny and Ann Smith.



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