Michael Kelly v. Boeing Company ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 5 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL KELLY, No. 19-35788
Plaintiff-Appellant, D.C. No. 3:18-cv-00659-SI
v.
MEMORANDUM*
THE BOEING COMPANY,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Oregon
Michael H. Simon, District Judge, Presiding
Argued and Submitted October 6, 2020
Portland, Oregon
Before: PAEZ and RAWLINSON, Circuit Judges, and PREGERSON,** District
Judge.
Appellant Michael Kelly (“Kelly”) appeals the district court’s summary
judgment in favor of Appellee The Boeing Company (“Boeing”). We have
jurisdiction under 28 U.S.C. § 1291 and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Dean D. Pregerson, United States District Judge for
the Central District of California, sitting by designation.
Boeing employed Kelly as a machinist from February 2011 to January 2017.
Relevant to this appeal, Kelly was diagnosed with celiac disease in or around 2010
and suffered from gout a number of years prior to 2017. Due to these medical
conditions, Kelly has difficulty urinating. In September 2015, Kelly entered into a
“Last Chance Agreement” with Boeing wherein Kelly agreed to be subject to
unannounced drug and alcohol testing for three years. The Last Chance
Agreement provided that a “refusal to test,” which included “tampering or
otherwise invalidating by any means . . . or failure to cooperate in any part of the
testing process,” would be grounds for termination. On approximately January 12,
2017, Boeing terminated Kelly for attempting to tamper with a urine sample.
1. There is no evidence supporting Kelly’s failure to accommodate claims
under the American with Disabilities Act (“ADA”) and the Oregon Rehabilitation
Act (“ORA”).1 “The ADA treats the failure to provide a reasonable
accommodation as an act of discrimination if the employee is a ‘qualified
individual,’ the employer receives adequate notice, and a reasonable
accommodation is available that would not place an undue hardship on the
operation of the employer’s business.” Snapp v. United Trans. Union, 889 F.3d
1088, 1095 (9th Cir. 2018), cert. denied sub nom. Snapp v. Burlington N. Santa Fe
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Claims under the ORA are evaluated using the same legal standard as the federal
ADA. Snead v. Metropolitan Property & Cas. Ins. Co., 237 F.3d 1080, 1087 (9th
Cir. 2001). Accordingly, we discuss the ADA and ORA claims together.
2
Ry. Co., 139 S. Ct. 817 (2019). Prior to January 12, 2017, Kelly had successfully
completed fifteen unannounced urine tests. On January 12, 2017, for the first time,
Kelly requested an accommodation—to be taken to a physician because he was
having difficulty urinating—after drug testing had commenced and after engaging
in behavior which led test administrators to believe that Kelly was attempting to
tamper with the urine sample. Even if Kelly’s request for an accommodation
under these circumstances were adequate notice, there is no dispute that Boeing
had an accommodation in place for an inability to urinate. Under Boeing’s
policies, Kelly would have been taken to a physician, if he could not urinate within
three hours of the last collection attempt. Kelly was not taken to a physician
because three hours had not passed when the first test administrator reported
witnessing Kelly attempting to tamper with the urine sample. Kelly does not put
forth any evidence demonstrating otherwise.
2. There is also no evidence supporting Kelly’s discrimination claims.
ADA discrimination claims are analyzed under the burden-shifting framework set
forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). See
Mayo v. PCC Structurals, Inc., 795 F.3d 941, 944 (9th Cir. 2015). Assuming
Kelly established a prima facie case of discrimination, Boeing provided a
legitimate nondiscriminatory reason for terminating Kelly—two test administrators
reported witnessing Kelly tamper with the urine test. Tampering with a urine
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sample was grounds for termination under the Last Chance Agreement. Kelly did
not put forth any direct or circumstantial evidence demonstrating that Boeing’s
nondiscriminatory reason was pretextual. See Villiarimo v. Aloha Island Air, Inc.,
281 F.3d 1054, 1062 (9th Cir. 2002).
3. Kelly’s retaliation claims similarly fail. “A prima facie case of retaliation
requires a plaintiff to show: (1) involvement in a protected activity, (2) an adverse
employment action and (3) a causal link between the two.” Coons v. Sec’y of U.S.
Dept. of Treasury, 383 F.3d 879, 887 (9th Cir. 2004). Even if Kelly established a
minimal prima facie case based on temporal proximity, temporal proximity alone
is insufficient evidence of pretext in light of the substantial evidence that Boeing
received reports that Kelly attempted to tamper with the urine sample. See
Hashimoto v. Dalton, 118 F.3d 671, 680 (9th Cir. 1997).
4. Next, there is no evidence supporting Kelly’s claims under the Family
and Medical Leave Act (“FMLA”) and the Oregon Family Leave Act (“OFLA”).2
It was Kelly’s burden to demonstrate that FMLA leave was a negative factor in the
decision to terminate him. See Bachelder v. Am. W. Airlines, Inc., 259 F.3d 1112,
1125 (9th Cir. 2001) (“[The employee] need only prove by a preponderance of the
evidence that her taking of FMLA-protected leave constituted a negative factor in
2
OFLA claims are construed “to the extent possible in a manner that is consistent
with any similar provisions of the federal” FMLA. Or. Rev. Stat. § 659A.186(2).
Accordingly, we discuss the FMLA and OFLA claims together.
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the decision to terminate her.”). According to Kelly, he notified Supervisor Mark
MacKinnon of his intent to take FMLA leave before his shift began on January 11,
2017. However, Boeing presented evidence that MacKinnon retired from Boeing
five years prior to the date at issue. In any event, even if Kelly notified a
supervisor of his intent to take leave, there is no evidence that the decisionmaker in
Kelly’s termination had any knowledge of Kelly’s intent to take leave. The only
evidence in the record is that the decisionmaker terminated Kelly after two test
administrators reported that Kelly was attempting to tamper with a urine test.
5. For the reasons discussed above, there is also no evidence showing that
Kelly’s protected activity, FMLA or OFLA leave, was a “substantial factor” in
Boeing’s motivation to terminate Kelly such as to support a wrongful discharge
claim. See Sheppard v. David Evans & Assoc., 694 F.3d 1045, 1051 (9th Cir.
2012) (“[A] plaintiff must establish a causal connection between a protected
activity and the discharge. A causal connection requires a showing that the
employee’s protected activity was a substantial factor in the motivation to
discharge the employee.” (internal quotations omitted) (citation omitted)).
Affirmed.
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