Kristi Adams v. County of Maricopa ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 5 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KRISTI ADAMS, No. 20-17299
Plaintiff-Appellant, D.C. No. 2:19-cv-05253-MTL
v.
MEMORANDUM*
COUNTY OF MARICOPA,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
Michael T. Liburdi, District Judge, Presiding
Argued and Submitted November 17, 2021
Phoenix, Arizona
Before: MURGUIA, Chief Judge, CLIFTON, and BRESS, Circuit Judges.
Kristi Adams is a former employee of the County of Maricopa (“County”).
Ms. Adams appeals the district court’s summary judgment in her action against the
County under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et
seq., and the Rehabilitation Act, 29 U.S.C. § 701 et seq. We have jurisdiction
pursuant to 28 U.S.C. § 1291 and review de novo. We affirm.
*
This disposition is not appropriate for publication and is not precedent except as
provided by Ninth Circuit Rule 36-3.
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I. Unlawful Discharge under the Acts
Discrimination claims under both the ADA and Rehabilitation Act are
analyzed using the same standards. See Wong v. Regents of Univ. of Cal., 192 F.3d
807, 822 n.34 (9th Cir. 1999), as amended (Nov. 19, 1999). Where an employer
articulates a “legitimate nondiscriminatory reason” for terminating an employee,
“the plaintiff must produce specific, substantial evidence of pretext” to defeat the
employer’s motion for summary judgment. Wallis v. J.R. Simplot Co., 26 F.3d 885,
889–90 (9th Cir. 1994) (internal quotations and citations omitted).
The County set forth two reasons for terminating Ms. Adams in its intent-to-
terminate letter dated February 4, 2019: (1) Ms. Adams’s discourteous behavior on
August 10, 2018, in violation of the County’s Code of Conduct, and (2) her repeated
discipline for “abusive,” “hostile,” and “discourteous” behavior between May 2003
and January 2018, including a final warning and an additional misconduct incident.
Ms. Adams contends that the County’s reasons are not nondiscriminatory because
“conduct resulting from a disability is considered to be part of the disability, rather
than a separate basis for termination.” See Humphrey v. Mem’l Hosps. Ass’n, 239
F.3d 1128, 1139–40 (9th Cir. 2001); Gambini v. Total Renal Care, Inc., 486 F.3d
1087, 1093 (9th Cir. 2007). Relying on Humphrey and Gambini, Ms. Adams avers
that she “periodically acted out in inappropriate ways” as a result of her disabilities
including bipolar disorder, that an evaluating psychiatrist found that the behaviors
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of individuals with bipolar disorder are “consistent with” the misconduct identified
in the County’s grounds for termination, and that, as a result, Ms. Adams cannot be
fired on the basis of her misconduct.
Ms. Adams’s reliance on Humphrey and Gambini is misplaced. In those
cases, the employer was aware of the employee’s disability, refused
accommodations, and then recast the resulting performance issues as misconduct
warranting termination. See Humphrey, 239 F.3d at 1132, 1140; see also Gambini,
486 F.3d at 1091. But here, Ms. Adams does not argue that the County knew she
was disabled when it set forth its reasons for terminating her. Ms. Adams says she
“informed the County of her disabilities in a February 11, 2019 letter” sent by her
attorney in response to the County’s intent-to-terminate letter. “The ultimate
question in every employment discrimination case involving a claim of disparate
treatment is whether the plaintiff was the victim of intentional discrimination.”
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 153 (2000). The County’s
ignorance of Ms. Adams’s alleged disability means that its reasons for terminating
Ms. Adams were nondiscriminatory in this case. See Raytheon Co. v. Hernandez,
540 U.S. 44, 54 n.7, 55 (2003) (explaining that when an employer is unaware of a
disability, an adverse employment decision cannot have been intentionally
discriminatory).
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Moreover, Ms. Adams has not meaningfully alleged that her past history of
misconduct “result[ed] from a disability,” as was the case in Humphrey and
Gambini. See 239 F.3d at 1139–40; see also 486 F.3d at 1091. In Alamillo v. BNSF
Railway Co., we held that a physician’s affidavit stating that certain behaviors fall
within the “array of symptoms” of a disability did not create a genuine factual
dispute as to whether the employee’s termination was discriminatory, absent
evidence that the disability directly caused the plaintiff’s particular misconduct
incidents. 869 F.3d 916, 921 (9th Cir. 2017). We can no sooner conclude that a
report from an evaluating psychiatrist stating that bipolar disorder is “consistent with
. . . outbursts” creates a triable issue as to whether Ms. Adams’s fifteen years of
misconduct were disability-related. Although Ms. Adams claims she “periodically
acted out” because of her disabilities, she has not addressed any of the May 2003 to
January 2018 Code of Conduct violations, much less explained how those behaviors
resulted from her disability. See Nilsson v. City of Mesa, 503 F.3d 947, 952 n.2 (9th
Cir. 2007) (“A conclusory, self-serving affidavit, lacking detailed facts and any
supporting evidence, is insufficient to create a genuine issue of material fact.”
(alteration omitted)) (citing Fed. Trade Comm’n v. Publ’g Clearing House, Inc., 104
F.3d 1168, 1171 (9th Cir. 1997)). The County therefore has provided at least one
nondiscriminatory basis for terminating Ms. Adams: her long history of discourteous
behavior in violation of the County’s Code of Conduct. This basis is unrebutted by
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specific and substantial evidence of pretext, and the County is entitled to summary
judgment on Ms. Adams’s unlawful discharge claims. See Wallis, 26 F.3d at 890.
II. Failure to Accommodate under the Acts
Because the Acts require “reasonable accommodations to the known . . .
limitations” of employees with disabilities, refusing to accommodate an employee
is unlawful if the employer “receives adequate notice.” Snapp v. United Trans.
Union, 889 F.3d 1088, 1095 (9th Cir. 2018) (citing 42 U.S.C. § 12112(b)(5)(A)).
Even assuming that reasonable accommodations were available to prevent
Ms. Adams’s rude or abusive conduct in the future, we conclude that on the
particular facts presented here, the County lacked adequate notice of Ms. Adams’s
limitations and it had no duty to accommodate her. While aware that the County
was investigating her Code of Conduct violations, Ms. Adams expressly denied
having limitations that affect her job performance and declined the option to seek
accommodations. When Ms. Adams finally requested accommodations six months
later, on February 11, 2019, she did so only after learning that the County intended
to terminate her for a valid, nondiscriminatory reason. See Dark v. Curry Cnty., 451
F.3d 1078, 1090 n.9 (9th Cir. 2006) (citations omitted) (distinguishing case where
employee chose to “ignore[] the problem until [it] . . . warranted discharge” and
requested accommodations to obtain a “second chance to change [her] own
behavior”); accord EEOC, Enforcement Guidance: Reasonable Accommodation
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and Undue Hardship Under the Americans with Disabilities Act (“EEOC ADA
Enforcement Guidance”), 2002 WL 31994335, at *25 (2002) (duty to accommodate
applies “except where the punishment for [past misconduct] is termination.”). These
circumstances deprived the County of fair notice of Ms. Adams’s alleged need for
accommodations. See Snapp, 889 F.3d at 1095; see also EEOC ADA Enforcement
Guidance at *5 (recommending that an employee “request a reasonable
accommodation when s/he knows that there is a workplace barrier . . . . [and] before
performance suffers or conduct problems occur”). The County therefore had no duty
to accommodate Ms. Adams and is entitled to summary judgment on her failure-to-
accommodate claim. See Brown v. Lucky Stores, Inc., 246 F.3d 1182, 1188–89 (9th
Cir. 2001).
AFFIRMED.
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