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Faidley v. United Parcel Service of America, Inc., No. 16-1073 (8th Cir. May 11, 2018) (en banc); Snapp v. Burlington Northern Santa Fe Railway Co., No. 15-35410 (9th Cir. May 11, 2018)

ADA opinions released in the Eighth and Ninth Circuits today underscore that the burden of proof, ultimately, is always on the employee to show that the employer failed to provide a reasonable accommodation. These serve as a reminder to disabled employees and counsel that when seeking reassignment as an accommodation, it is vital to request the reassignment clearly and to set one's sights realistically.

Faidley v. United Parcel Service of America, Inc., No. 16-1073 (8th Cir. May 11, 2018) (en banc): This case was previously decided by a 2-1 panel, 853 F.3d 447, 33 A.D. Cases 601 (8th Cir. 2017), then vacated for rehearing en banc. A UPS package car delivery driver (Faidley), with multiple physical ailments due to a back injury and a degenerative hip condition, was medically restricted to eight-hour days. UPS generally insisted that drivers be available for overtime work, up to 9.5 hours per day. When the plaintiff informed his station manager of the limitation, he was informed outright that "UPS won't allow anybody to work with a permanent restriction."

Faidley then approached the company to hunt up another possible position that he could perform with his restrictions. He "attended an 'accommodation checklist meeting' with UPS Occupational Health Supervisors Jurgen Rosner and Terra Vellema, and District Human Resources Manager Vince Blood."

Ultimately, certain "positions identified by Faidley - car washer, porter, and preload air-driver inside or hub jobs - were identified as full-time eight-hour jobs for which Faidley was qualified, and he was encouraged to bid on those jobs when available." But either no vacancies occurred in those positions, or else he lacked seniority to successfully bid on them. (Later, his medical restrictions prevented him from filling even these positions.)

Faidley also identified a position as "feeder driver" that still required more than eight-hour days, but was less physically strenuous. Blood wrote on his accommodation worksheet that Faidley "preliminarily appear[ed] capable of performing the essential job functions" of a feeder driver, and there was evidence that feeder driver positions would become open in the near future. This position was not offered, though, supposedly because there were no current vacancies.

The Eighth Circuit affirms the district court's decision that Faidley was not a qualified individual with a disability. The majority holds that UPS established as a matter of law that overtime was an essential function of the job:

"In moving for summary judgment on this issue, UPS explained that overtime is an essential function of the package car driver position because daily package car workloads can increase unpredictably, particularly during the year-end holiday busy season, and drivers encounter unpredictable weather conditions while completing their routes. If a driver is unable to deliver all the packages in his vehicle within eight hours, and is restricted from working overtime, other drivers must be sent to finish the deliveries, or packages will not be timely delivered; either alternative adversely affects UPS's business."

The majority holds that even if Faidley were normally able to perform the job in under eight hours, that did not counteract the occasional days when Faidley would have to work overtime. And although the company could in principle have trained Faidley to perform the job, in anticipation of a future vacancy, "UPS was under no ADA duty to pursue that unlikely accommodation ... rather than pursue the inside full-time positions that Faidley listed in his accommodation checklist and for which he was immediately qualified."

Regarding the feeder driver position, the majority notes that Blood's tentative notation that Faidley was capable of performing the job was only "a preliminary subjective opinion, unsupported by objective evidence, not materially different than the employee's subjective assessment that was insufficient to create a material dispute with his physician's restrictions....," and unable to overcome the substantial objective evidence of the plaintiff's medical restrictions. (A partial dissent by three judges - Judge Murphy, writing for herself, Chief Judge Smith, and Judge Kelly - would have allowed a trial based on the Human Resources manager's 2012 notation.)

Snapp v. Burlington Northern Santa Fe Railway Co., No. 15-35410 (9th Cir. May 11, 2018): This case was also heard by a prior panel at the summary judgment stage, and remanded for trial (547 Fed.Appx. 824 (9th Cir. Nov. 5, 2013)).

Plaintiff Snapp was a Division Trainman who was diagnosed as totally disabled due to sleep apnea. After a period of long-term disability, the company informed him that he had "sixty days to secure a position with BNSF or he would be dismissed." During that period, "Snapp contacted [his] Union to ask about his seniority for a yardmaster position. The Union told him he lacked the requisite seniority."

Snapp nevertheless "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." His doctor provided a letter stating that "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."

Snapp was not reemployed and filed an ADA action charging a failure to reasonably accommodate his disability. BNSF, among other things, argued that Snapp never requested an accommodation. In response, "Snapp argued that, in a Federal Rule of Civil Procedure Rule 30(b)(6) corporate-designee deposition, [the company witness] admitted Snapp had requested an accommodation and also admitted BNSF failed to engage in the interactive process in response to the request." At trial, the jury found for BNSF; the district court judge denied Snapp's motions for summary judgment and judgment as a matter of law.

Snapp argued on appeal that jury was misinstructed on the correct burden of proof in these cases. He "sought an instruction that would have described Snapp's burden of proof as to the availability of a reasonable accommodation in terms equivalent to a slight burden of production." He also argued that once he established that the employer failed to engage in an interactive process, the burden shifted to the employer to show the absence of a reasonable accommodation.

The panel affirms. It reiterates its prior decisions that at the summary judgment stage, if there is evidence that the employer refused to engage in the interactive process, the burden shifts to the defendant to prove the unavailability of a reasonable accommodation. See Barnett v. U.S. Air, Inc., 228 F.3d 1105 (9th Cir. 2000) (en banc), vacated on other grounds sub nom., US Airways, Inc. v. Barnett, 535 U.S. 391 (2002); Morton v. United Parcel Serv., Inc., 272 F.3d 1249 (9th Cir. 2001), overruled on other grounds, Bates v. United Parcel Serv., Inc., 511 F.3d 974 (9th Cir. 2007) (en banc). The panel acknowledges that the Ninth Circuit's burden-shift at summary judgment splits with other circuits that do not shift the burden.

But at trial, the panel holds, the burden remains always on the plaintiff to prove an accommodation. To attempt to instruct the jury as plaintiff suggests, moreover, would be unreasonably complicated:

"As a practical matter, the jury would need instructions asking if the employer participated in the interactive process in good faith. Then, the jury would need alternative instructions telling them how to allocate the burden of proof if they found an employer had failed to engage in good faith, and as a contingency, how to allocate the burden if the employer did engage in the interactive process. All the while, the court would need to ensure the jury did not impose liability on the employer simply for failing to engage-the risk of prejudicial juror confusion would be high."

Such an instruction would also invite the jury to enter a judgment for the plaintiff even if no accommodation were identified, which would be contrary to the ADA. The panel also holds that the jury was correctly charged that the plaintiff bears the burden of proof on reasonable accommodation, not merely a burden of production.

Finally, the panel holds that the defendant could contradict admissions of a designated witness in a Fed. R. Civ. P. 30(b)(6) deposition. A Rule 30(b)(6) deposition is not akin to a judicial admission that cannot be contradicted, holds the court, and the record contained substantial objective evidence supporting BNSF, including "a full history of communications between the parties showing that Snapp communicated repeatedly with BNSF, sought reinstatement of his long-term disability benefits, and accused BNSF, [long-term disability carrier] CIGNA, and his doctors of conspiring against him to deny him benefits. Moreover, two of Snapp's letters included doctor's notes that did not release him to work."

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