Peter Bukiri v. Loretta Lynch , 648 F. App'x 729 ( 2016 )

FILED
NOT FOR PUBLICATION
APR 19 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PETER G. BUKIRI, No. 15-56524
Plaintiff - Appellant, D.C. No. 8:15-cv-00894-JLS-DFM
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General;
DEPARTMENT OF JUSTICE; BUREAU
OF ALCOHOL, TOBACCO, FIREARMS
AND EXPLOSIVES,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California, Santa Ana
David O. Carter, District Judge, Presiding
Argued and Submitted April 5, 2016
Pasadena, California
Before: FARRIS, Circuit Judge, TYMKOVICH, Chief Judge,** and M. SMITH,
Circuit Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Timothy M. Tymkovich, Chief Judge for the Tenth
Circuit Court of Appeals, sitting by designation.
Peter Bukiri appeals the district court’s denial of his request for a
preliminary injunction. The district court concluded Bukiri was not likely to
succeed on the merits of his discrimination claim against the United States
Attorney General, the Department of Justice, and the Bureau of Alcohol, Tobacco,
Firearms and Explosives under the Rehabilitation Act, 29 U.S.C. §§ 701–797b.
Exercising jurisdiction under 28 U.S.C. § 1292(a)(1), we AFFIRM.
ATF hired Bukiri in 2010 for a position at its headquarters in Washington,
D.C. Shortly after starting, Bukiri requested a hardship transfer to California so he
could care for his wife, who suffers from disabilities relating to an auto accident.
These disabilities arose before Bukiri began working for ATF. ATF granted
Bukiri’s request, and Bukiri served in several positions in California. But in
August 2014, ATF informed Bukiri it was transferring him back to its D.C.
headquarters because of agency staffing needs. Bukiri filed a second hardship
transfer request to remain in California. ATF denied his request and, after two
extensions, he transferred to D.C. Bukiri then commenced internal agency
proceedings challenging the transfer, which are ongoing.
Bukiri also filed a complaint for a preliminary injunction with the district
court. The basis for Bukiri’s complaint is that ATF violated the Rehabilitation Act
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by transferring him because of his wife’s disabilities. That is, the disability
dictating the discrimination alleged here is not Bukiri’s, but his wife’s.
To obtain a preliminary injunction, among other things, Bukiri was required
to show he is likely to succeed on the merits of his claim. Winter v. Nat. Res. Def.
Council, Inc., 555 U.S. 7, 20 (2008). We review the district court’s denial of
Bukiri’s request for a preliminary injunction for abuse of discretion. DISH
Network Corp. v. F.C.C., 653 F.3d 771, 776 (9th Cir. 2011).
The Rehabilitation Act provides the exclusive remedy for federal employees
alleging disability discrimination, see Johnston v. Horne, 875 F.2d 1415, 1420 (9th
Cir. 1989), abrogated on other grounds by Irwin v. Dep’t of Veterans Affairs, 498
U.S. 89, 111 (1990), and incorporates the employment-related standards of Titles I
and V of the Americans with Disabilities Act (ADA). 29 U.S.C. § 791(f); 29
C.F.R. § 1614.203. The ADA extends to discrimination by association, which
includes “excluding or otherwise denying equal jobs or benefits to a qualified
individual because of the known disability of an individual with whom the
qualified individual is known to have a relationship or association.” 42 U.S.C.
3
§ 12112(b)(4).1
The only evidence Bukiri offers to show ATF discriminated against him is
that the agency denied his second hardship transfer request partly because of the
preexisting nature of his wife’s disabilities. ATF’s hardship transfer policy
provides accommodations for employees experiencing certain hardships. But the
policy expressly excludes hardships that arose prior to an employee’s tenure with
1
We recognize that the standard for proving an associational discrimination
claim is an open question in this circuit, and that other circuits have endorsed
varying views. Compare Den Hartog v. Wasatch Academy, 129 F.3d 1076, 1085
(10th Cir. 1997) (adopting standard that focuses on whether “the adverse
employment action occurred under circumstances raising a reasonable inference
that the disability of the relative or associate was a determining factor in the
employer’s decision” (emphasis added)) with Larimer v. Int’l Bus. Machines
Corp., 370 F.3d 698, 700–02 (7th Cir. 2004) (adopting standard that requires
plaintiff to show his or her case falls within one of three categories of cases
encompassing intended scope of associational discrimination subsection). We also
recognize that after the Supreme Court’s decisions in Gross v. FBL Financial
Services, Inc., 557 U.S. 167 (2009) and University of Texas Southwestern Medical
Center v. Nassar, 133 S. Ct. 2517 (2013), circuits have retreated from the
motivating factor standard of causation in ADA cases, which we first endorsed in
Head v. Glacier Northwest, Inc., 413 F.3d 1053 (9th Cir. 2005). See Gentry v. E.
W. Partners Club Mgmt. Co., — F.3d —, 2016 WL 851673 (4th Cir. Mar. 4,
2016); Palmquist v. Shinseki, 689 F.3d 66 (1st Cir. 2012); Lewis v. Humboldt
Acquisition Corp., 681 F.3d 312 (6th Cir. 2012) (en banc); Serwatka v. Rockwell
Automation, Inc., 591 F.3d 957 (7th Cir. 2010). See also Pulczinski v. Trinity
Structural Towers, Inc., 691 F.3d 996, 1002 (8th Cir. 2012); Doe v. Bd. of Cty.
Comm’rs of Payne Cty., 613 F. App’x 743, 747 n.3 (10th Cir. 2015);
Wesley–Dickson v. Warwick Valley Cent. Sch. Dist., 586 F. App’x 739, 745 n.3 (2d
Cir. 2014). Although this issue presents an interesting legal question, the pertinent
standard is not outcome determinative in this appeal. Bukiri cannot satisfy any of
the potential standards.
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the agency. Bukiri argues ATF’s refusal to grant him relief under the policy
because his wife’s disabilities were preexisting shows that his transfer was
predicated on a discriminatory motive. This reasoning lacks merit. ATF’s denial
of a hardship accommodation has no bearing on its motive for the transfer itself.
And, in any event, the evidence actually supports ATF’s explanation that it was
motivated strictly by agency staffing needs. The district court did not err in finding
that Bukiri was not entitled to a preliminary injunction because his evidence failed
to establish a likelihood of success on the merits.
We therefore AFFIRM the district court.
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