Barnett v. U.S. Air, Inc., 96-16669

Citation228 F.3d 1105
Decision Date04 October 2000
Docket NumberNo. 96-16669,96-16669
Parties(9th Cir. 2000) ROBERT BARNETT, Plaintiff-Appellant, v. U.S. AIR, INC., Defendant-Appellee
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Richard L. Davis (on brief), Menlo Park, California, Robert W. Rychlik, Palm Desert, California for the plaintiff-appellant

Raymond W. Thomas, Los Angeles, for the defendant appellee.

Susan L.P. Starr, (argued), Julie L. Gantz (on brief), Washington, D.C., for the amicus curiae.

Appeal from the United States District Court for the Northern District of California; D. Lowell Jensen, District Judge, Presiding. D.C. No.CV-94-03874-DLJ

Before: Procter Hug, Jr., Chief Judge, Mary M. Schroeder, Betty B. Fletcher, Harry Pregerson, Diarmuid F. O'Scannlain, Stephen S. Trott, Andrew J. Kleinfeld, A. Wallace Tashima, Sidney R. Thomas, Raymond C. Fisher, Ronald M. Gould, Circuit Judges.

Opinion by Judge FLETCHER; RONALD M.GOULD, Circuit Judge, with whom Circuit

Judge Thomas joins, Concurring; O'Scannlain, Circuit Judge, with whom Circuit Judges Trott and Kleinfeld join, Dissenting; Trott, Circuit Judge, with whom Circuit Judges O'Scannlain and Kleinfeld join, Dissenting

B. FLETCHER, Circuit Judge:

Robert Barnett brought suit under the Americans with Disabilities Act (ADA) and he appeals the district court's dismissal on summary judgment of his claims. Barnett, who suffered a serious back injury while on the job, argues that U.S. Air discriminated against him by denying him accommodation, by failing to engage in the interactive process and by retaliating against him for filing charges with the Equal Employment Opportunity Commission (EEOC). This appeal raises several issues of first impression in this circuit, including the nature and scope of an employer's obligation to engage in the interactive process, whether reassignment is a reasonable accommodation in the context of a seniority system and the appropriate standard for evaluating retaliation claims under the ADA. We reverse the district court's grant of summary judgment in favor of U.S. Air on all claims except for the retaliation claim and we remand for trial.


Robert Barnett worked for ten years as a customer service agent for U.S. Air and its predecessor, Pacific Southwest Airlines. In 1990, Barnett injured his back while working in a cargo position for U.S. Air at San Francisco International Airport. After returning from disability leave, Barnett found that he could not perform all of the physical requirements of handling freight. Barnett used his seniority to transfer into the company's mail room.

In March and August of 1992, Barnett's doctor and chiropractor both recommended that he avoid heavy lifting and excessive bending, twisting, turning, pushing and pulling, and prolonged standing or sitting. The doctor concluded that Barnett could perform the job requirements of the swing-shift mailroom position. Barnett learned in August of 1992 that two employees with greater seniority planned to exercise their seniority right to transfer to the mailroom. Once bumped, Barnett's seniority would have limited him to transferring to jobs in the cargo area. Barnett wrote to his station manager, Robert Benson, on August 31, 1992 and requested that he be allowed to stay in the mailroom as a reasonable accommodation under the ADA.

U.S. Air did not respond to Barnett for five months but allowed him to remain in the mailroom for the period while the company was evaluating his claims. On January 20, 1993, Benson, acting on behalf of U.S. Air, informed Barnett that he would be removed from the mailroom and placed on job injury leave. There was no substantive discussion of Barnett's accommodation request. Following the meeting, Barnett sent Benson a second letter suggesting two alternative means of accommodating his disability. Barnett proposed either that U.S. Air provide him with special lifting equipment in the cargo facility or that the cargo job be restructured so that he would do only warehouse office work.

Barnett filed formal charges of discrimination with the EEOC in February of 1993. On March 4, 1993, Barnett received a letter from U.S. Air's Vice President of Human Resources denying Barnett's alternative requests for accommodation but informing him that he could bid for any job within his restrictions. There is no evidence that Barnett was qualified, without reasonable accommodation, for any other position in San Francisco or elsewhere in the U.S. Air system. Barnett made no subsequent bids for any other position. In August of 1994, the EEOC issued a formal determination that there was reason to believe that U.S. Air had discriminated against Barnett by denying him reasonable accommodation under the ADA.

After Barnett filed suit, the district court granted U.S. Air's motion for summary judgment for all claims except Barnett's claim that U.S. Air discriminated by not participating in the interactive process. Upon receiving supplementary briefing, the district court granted summary judgment to U.S. Air on that claim as well. Barnett, in his appeal, argues that U.S. Air violated the ADA by failing to engage in the interactive process, by failing to reassign him to the mail room, by failing to provide other reasonable accommodation and by retaliating against him.


We review de novo the district court's grant of summary judgment. Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir. 1996). In determining whether there are any genuine issues of material fact, we must view the evidence in the light most favorable to the nonmoving party. Id.

Barnett claims that U.S. Air had an obligation to engage in an interactive process to identify possible reasonable accommodations. Barnett further asserts that U.S. Air's failure to engage in this process gives rise to liability under the ADA. The district court concluded that an employer is liable for failing to engage in the interactive process but that U.S. Air had sufficiently engaged in the interactive process to avoid such liability.

Although disabled Americans have played prominent roles in our nation's history, from the founders of our Constitution to our longest serving President, they have also faced a long history of exclusion. Congress, in the opening section of the ADA, recognized that some "43,000,000 Americans have one or more physical or mental disabilities" and that:

individuals with disabilities are a discrete and insular minority who have been faced with restrictions and limitations, subjected to a history of purposeful unequal treatment, and relegated to a position of political powerlessness in our society, based on characteristics that are beyond the control of such individuals and resulting from stereotypic assumptions not truly indicative of the individual ability of such individuals to participate in, and contribute to, society;

42 U.S.C. S 12101(a)(7).

The ADA was designed to end the exclusion of people with disabilities from the workplace and from other realms of social life. As President George Bush explained upon signing the ADA:

Today, we're here to rejoice in and celebrate another `Independence Day,' one that is long overdue. With today's signing of the landmark Americans for [sic] Disabilities Act, every man, woman, and child with a disability can now pass through once closed doors into a bright new era of equality, independence and freedom. Today's legislation brings us closer to that day when no Americans will ever again be deprived of their basic guarantees of life, liberty, and the pursuit of happiness.

President George Bush, "Remarks on Signing the Americans with Disabilities Act of 1990," (July 26, 1990), reprinted in Bernard D. Reams, Jr., et. al., eds., Disability Law in the United States: A Legislative History of the Americans with Disabilities Act of 1990, Public Law 101-336, Vol. I, Document No. 9 (1992).

In introducing the ADA, Senator Harkin called the statute "a broad and remedial bill of rights for individuals with disabilities. It is their emancipation proclamation. " 135 Cong. Rec. S 4984 (May 9, 1989)(statement of Sen. Harkin) reprinted in Disability Law, Vol. VI, Document No. 36. Citing a nationwide poll, Senator Harkin pointed out that sixty-six percent of working-age disabled persons who are not working, or some 8.2 million persons, want to have a job and that eighty-two percent of people with disabilities would give up their government benefits in favor of full-time employment. Id. at S 4985. Thus, the workplace protections of the ADA are central to the Act's goals of assuring "equality of opportunity, full participation, independent living, and economic self-sufficiency" for people with disabilities. 42 U.S.C. S 12101(a)(8).

Title I of the ADA insures full opportunities for people with disabilities in the workplace by requiring reasonable accommodation of employees' disabilities by their employers. The ADA prohibits employers from discriminating against a disabled employee1 by "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity. " 42 U.S.C. S 12112(b)(5)(A). The ADA defines a "qualified individual with a disability" as "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. S 12111(8).

U.S. Air argues that Barnett is not covered under the ADA because he was not "qualified" for the cargo position due to his disability. If Barnett could perform the essential functions of the cargo position "with or without reasonable accommodation" he would be qualified under the ADA....

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