Nicholas Conlan v. Costco ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 26 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NICHOLAS CONLAN, No. 21-35517
Plaintiff-Appellant, D.C. No. 6:18-cv-00094-JTJ
v.
MEMORANDUM*
COSTCO WHOLESALE CORPORATION,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Montana
John T. Johnston, Magistrate Judge, Presiding
Argued and Submitted August 9, 2022
Seattle, Washington
Before: CHRISTEN, LEE, and FORREST, Circuit Judges.
Nicholas Conlan sued his former employer, Costco, for failing to
accommodate his alleged disability by not allowing him to bring his dog, Teddy, to
Costco’s warehouse and for discriminating and retaliating against him.1 He appeals
(1) the district court’s order granting in part Costco’s motion in limine, which
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
1
The parties dispute whether Teddy is a service dog or an emotional support dog,
but that question does not affect our analysis of Conlan’s claims.
prohibited Conlan from raising an additional claim under the Montana Human
Rights Act (MHRA), Mont. Code. Ann. §§ 49-2-101 et seq., and (2) the district
court’s dismissal after a bench trial of his claims under the Americans with
Disabilities Act (ADA), 42 U.S.C. §§ 12101 et seq., and the MHRA. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
Though we normally review a district court’s ruling on a motion in limine for
an abuse of discretion, Desire, LLC v. Manna Textiles, Inc., 986 F.3d 1253, 1259
(9th Cir. 2021), we review the district court’s ruling on Costco’s motion in limine
de novo because it was “a dispositive ruling akin to a dismissal under Fed. R. Civ.
P. 12(b)(6),” Dubner v. City and Cty. of San Francisco, 266 F.3d 959, 968 (9th Cir.
2001). “In reviewing a judgment following a bench trial, [we] review[] the district
court’s findings of fact for clear error and its legal conclusions de novo.” Id. at 964.
1. Conlan sought to bring an MHRA claim against Costco arising from his
visit as a customer to Costco’s tire shop in March 2017: He brought along his dog,
Teddy, to the tire shop but one of the employees insisted that the dog must stay
outside (the “Tire Shop Claim”). Under Montana Law, Conlan is barred from
bringing the Tire Shop Claim because he did not first exhaust his administrative
remedies before the Montana Human Rights Bureau (MHRB). See Borges v.
Missoula Cty. Sheriff’s Office, 415 P.3d 976, 981 (Mont. 2018) (“A party claiming
discrimination may not file a claim in district court without first obtaining an
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adjudication of that claim by the [M]HRB.”); see Mont. Code. Ann. §§
49-2-504(7)(b)(ii), -512(1).
Conlan argues that Costco waived its exhaustion argument. But even
assuming Costco’s exhaustion argument can be waived, Conlan has presented no
evidence that Costco knew that he intended to bring the Tire Shop Claim and
unreasonably delayed in bringing its motion in limine. See Edwards v. Cascade
Cty., 212 P.3d 289, 295 (Mont. 2009) (“[T]he party asserting waiver must
demonstrate the other party’s knowledge of the existing right, acts inconsistent with
that right, and resulting prejudice to the party asserting waiver.”). As such, we affirm
the district court's order granting in part Costco’s motion in limine.
2. We affirm the district court’s judgment dismissing Conlan’s ADA and
MHRA claims.2
Conlan argues that Costco failed to engage in the interactive process in good
faith because Costco ended the interactive process when Conlan refused to authorize
a third-party accommodation consultant to contact his medical provider. See Garcia
v. Salvation Army, 918 F.3d 997, 1010 (9th Cir. 2019) (“An ‘interactive process’ is
required upon a request for an accommodation.”) (citation omitted). But Costco
ended the interactive process because Conlan’s primary care provider released him
2
The MHRA is modeled after the ADA, and Montana looks to federal law in
interpreting the MHRA. Pannoni v. Bd. of Trs., 90 P.3d 438, 444 (Mont. 2004).
3
to return to work without restrictions. See id. (“A doctor’s release to work without
restrictions” ends the employer’s duty to engage in further interactive process.).3
Conlan next argues that Costco failed to (1) show that allowance of an
accommodation in the form of a service dog would cause undue hardship, and (2)
proffer any alternative accommodations. See id. at 1009–10 (An employer must
accommodate an employee’s “known physical or mental limitations” unless the
“employer can demonstrate that the accommodation would impose an undue
hardship.” (quoting U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 396 (2002))). But
an employer that rejects an employee’s requested accommodation must show “undue
hardship” or offer “alternative accommodations” only if the employer was required
to provide an accommodation in the first place. Id. Costco was not required to
provide any accommodation because Conlan was cleared to work without
restrictions. Id.Lastly, Conlan argues that Costco’s proffered reason for firing him—that he
violated Costco’s leave of absence policy—was pretextual, and that the true reason
was Conlan’s disability and request for a service dog accommodation. See Smith v.
Clark Cty. Sch. Dist., 727 F.3d 950, 955 (9th Cir. 2013) (To state a prima facie case
3
Conlan argues that his primary care provider’s note was ambiguous about whether
he could return to work, and that Costco should have conferred with the provider.
The district court did not clearly err in finding that the note was not ambiguous and
that it authorized his return.
4
of employment discrimination and retaliation, the employee must show, among other
things, that he “was discriminated against because of [his] disability.”). The district
court did not clearly err in finding that Conlan was terminated for violating Costco’s
leave of absence policy. Conlan thus failed to state a prima facie case for
employment discrimination and retaliation. See Garcia, 918 F.3d at 1009–10
(holding that an employer may lawfully terminate an employee who is cleared to
work without restrictions but fails to return in violation of the employer’s leave of
absence policy).
AFFIRMED.
5