Neal v. Kraft Foods Global, Inc., 051810 FED9, 09-35412

Docket Nº:09-35412
Party Name:VALEDA NEAL, Plaintiff - Appellant, v. KRAFT FOODS GLOBAL, INC., Defendant-Appellee.
Judge Panel:Before: KLEINFELD, BEA, and IKUTA, Circuit Judges.
Case Date:May 18, 2010
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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VALEDA NEAL, Plaintiff - Appellant,

v.

KRAFT FOODS GLOBAL, INC., Defendant-Appellee.

No. 09-35412

United States Court of Appeals, Ninth Circuit

May 18, 2010

NOT FOR PUBLICATION

Argued and Submitted May 4, 2010 Portland, Oregon.

Appeal from the District Court of Oregon Anna J. Brown, District Judge, Presiding, D.C. No. 3:08-cv-00092-BR

Before: KLEINFELD, BEA, and IKUTA, Circuit Judges.

MEMORANDUM [*]

Valeda Neal ("Neal") appeals from an order granting her employer Kraft Foods Global's ("Kraft") motion for summary judgment on the ground Neal failed to participate in the interactive process with Kraft to ascertain whether she was disabled and, if so, what reasonable accommodation Kraft should provide her. Neal has a back injury that limits her ability to sit, stand, walk, or lift over 25 pounds. After Neal's back injury in 1994 and at Neal's doctor's request, Kraft did not schedule Neal for overtime work (no more than 8 hours per day). In 2004, Kraft sought an update on Neal's physical condition and an explanation of the medical reasons Neal could not work more than 8 hours per day. On the same day, Kraft informed Neal that she should not return to work until she had a full release to work all hours needed. When Kraft did not receive the detailed explanation it requested, Kraft scheduled Neal for an Independent Medical Examination ("IME"), from which the independent doctor reaffirmed Neal's restriction from lifting over 25 pounds, but reported that with regard to overtime, it would increase her pain but not worsen her injury. When Kraft told Neal she could either return to work without an overtime restriction, arrange for a second IME at her own expense, or file for short-term disability, Neal ended discussions with Kraft and did not return to work.

Neal filed the instant action against Kraft in which she alleged Kraft violated Oregon Revised Statutes ("ORS") Chapter 659A because it failed to provide her the "reasonable accommodation" of a "no overtime" work restriction.1 Kraft moved for summary judgment on the grounds Neal was not disabled and had failed to engage in the interactive process. The district court granted summary judgment on the ground Neal failed to engage in the interactive process. See Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1114-15 (9th Cir. 2000) (en banc) (citing Beck v. University of Wis. Bd. of Regents, 75 F.3d 1130, 1135 (7th...

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