Lopez v. Pacific Maritime Ass'n

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SANTIAGO LOPEZ,  No. 09-55698

Plaintiff-Appellant, D.C. No.

v. 2:06-cv-04154-GW-

PACIFIC MARITIME ASSOCIATION, JTL

Defendant-Appellee, ORDER

and AMENDING

INTERNATIONAL LONGSHORE AND  OPINION AND

DENYING

WAREHOUSE UNION; and PETITION FOR

INTERNATIONAL LONGSHORE AND REHEARING AND

WAREHOUSE UNION LOCAL 13, PETITION FOR

Defendants. REHEARING EN

BANC AND

AMENDED

 OPINION

Appeal from the United States District Court

for the Central District of California

George H. Wu, District Judge, Presiding

Argued and Submitted

November 1, 2010—Pasadena, California

Filed March 2, 2011

Amended September 21, 2011

Before: Harry Pregerson, Kenneth F. Ripple,* and

Susan P. Graber, Circuit Judges.

*The Honorable Kenneth F. Ripple, Senior United States Circuit Judge

for the Seventh Circuit, sitting by designation.

17883

17884 LOPEZ v. PACIFIC MARITIME ASSOCIATION

Opinion by Judge Graber;

Partial Concurrence and Partial Dissent by Judge Pregerson

17886 LOPEZ v. PACIFIC MARITIME ASSOCIATION

COUNSEL

Andrea L. Cook, Andrea Cook & Associates, Long Beach,

California, for the plaintiff-appellant.

Jason M. Steele, Morgan, Lewis & Bockius LLP, Los Ange-

les, California, for the defendant-appellee.

Daniel T. Vail, U.S. Equal Employment Opportunity Com-

mission, Washington, D.C.; Claudia Center, The Legal Aid

Society—Employment Law Center, San Francisco, Califor-

nia; and Peter Blanck, Burton Blatt Institute, Syracuse Uni-

versity, Syracuse, New York, for the amici curiae.

ORDER

The opinion filed March 2, 2011, is replaced by the

amended opinion filed concurrently with this order.

With these amendments, Judges Ripple and Graber have

voted to deny the petition for panel rehearing, and Judge Pre-

gerson has voted to grant it. Judge Graber has voted to deny

the petition for rehearing en banc, and Judge Ripple has so

recommended. Judge Pregerson has voted to grant it.

LOPEZ v. PACIFIC MARITIME ASSOCIATION 17887

The full court has been advised of the petition for rehearing

en banc, and no judge of the court has requested a vote on it.

The petition for panel rehearing and petition for rehearing

en banc are DENIED. No further petitions for rehearing will

be accepted.

OPINION

GRABER, Circuit Judge:

Plaintiff Santiago Lopez appeals from the entry of sum-

mary judgment in favor of Defendant Pacific Maritime Asso-

ciation on Plaintiff’s claims for disparate treatment and

disparate impact under the federal Americans with Disabili-

ties Act of 1990 (“ADA”) and the state Fair Employment and

Housing Act (“FEHA”). On de novo review, Doran v. 7-

Eleven, Inc., 524 F.3d 1034, 1047 (9th Cir. 2008), we affirm.

I. Background1

Defendant represents the shipping lines, stevedore compa-

nies, and terminal operators that run the ports along the west

coast of the United States. As the collective bargaining agent

and payroll administrator of those employers, Defendant

enforces the policies that govern the hiring of longshore

workers who work along the west coast. One of those policies

is a “one-strike rule,” which eliminates from consideration

any applicant who tests positive for drug or alcohol use during

the pre-employment screening process. Defendant notifies its

applicants at least seven days in advance of administering the

drug test. Failing the drug test, even once, disqualifies an

applicant permanently from future employment.

1

Because this case comes to us after the entry of summary judgment for

Defendant, we state the facts in the light most favorable to Plaintiff. Dark

v. Curry County, 451 F.3d 1078, 1082 n.2 (9th Cir. 2006).

17888 LOPEZ v. PACIFIC MARITIME ASSOCIATION

Plaintiff wants to be a longshoreman. He first applied in

1997 at the port in Long Beach, California. At that time, how-

ever, Plaintiff suffered from an addiction to drugs and alco-

hol. When Defendant administered its standard drug test,

Plaintiff tested positive for marijuana. Defendant therefore

disqualified Plaintiff from further consideration under the

one-strike rule.

In late 2002, Plaintiff recognized the deleterious effects on

his health that his addictions had caused. He became clean

and sober and, in 2004, reapplied to be a longshoreman.

Because of the one-strike rule, Defendant rejected Plaintiff’s

application. At that time, Defendant did not know of Plain-

tiff’s earlier addiction. Plaintiff attempted to appeal, but

Defendant never entertains appeals from disqualifications

arising from positive drug tests.

Plaintiff then filed this action, claiming that Defendant vio-

lated the ADA and the FEHA by discriminating against him

on the basis of his protected status as a rehabilitated drug

addict. See 42 U.S.C. §§ 12112(a), 12114(b)(1) (expressly

protecting from employment discrimination any person who

has “been rehabilitated successfully and is no longer engaging

in [illegal drug use]”); Cal. Gov’t Code § 12926(l) (incorpo-

rating by reference any protection in the ADA not expressly

incorporated into the FEHA). The district court granted sum-

mary judgment to Defendant. Plaintiff timely appeals.

II. Plaintiff’s Disparate Treatment Claim

[1] In support of his disparate treatment claim, Plaintiff

makes three arguments. He first argues that the one-strike rule

facially discriminates against recovering or recovered drug

addicts. We disagree. The rule eliminates all candidates who

test positive for drug use, whether they test positive because

of a disabling drug addiction or because of an untimely deci-

sion to try drugs for the first time, recreationally, on the day

before the drug test. Conversely, the rule allows a drug-

LOPEZ v. PACIFIC MARITIME ASSOCIATION 17889

addicted applicant who happens to be sober at the time of the

drug test to complete pre-employment processing success-

fully. Here, for example, had Plaintiff applied for the first

time in 2004, he would qualify for employment despite his

status as a recovering addict. The triggering event for pur-

poses of the one-strike rule is a failed drug test, not an appli-

cant’s drug addiction.

[2] The Supreme Court’s opinion in Raytheon Co. v. Her-

nandez, 540 U.S. 44 (2003), supports our view of the one-

strike rule. There, the Court held that an employer’s policy

not to rehire workers who lost their jobs due to drug-related

misconduct constituted a “neutral,” “legitimate, [and] nondis-

criminatory reason for refusing to rehire” the aggrieved

employee. Id. at 53. The Court disapproved of the argument

that, because the employee’s misconduct related to his drug

addiction, the employer’s refusal to rehire him on account of

that misconduct violated the ADA. Id. at 54 n.6. The ADA

prohibits employment decisions made because of a person’s

qualifying disability, not decisions made because of factors

merely related to a person’s disability. See Hazen Paper Co.

v. Biggins, 507 U.S. 604, 611 (1993) (holding that an employ-

er’s decision “wholly motivated by factors other than age”

does not constitute age discrimination, even if “the motivating

factor is correlated with age”).

Second, Plaintiff alleges that Defendant adopted the one-

strike rule intentionally to exclude recovering and recovered

drug addicts from its work force. The record belies that alle-

gation. Before the adoption of the one-strike rule, the long-

shore industry suffered numerous serious accidents and

injuries, including several fatalities. Defendant attributed

those accidents in part to a culture that accepted the use of

drugs and alcohol in the workplace. Defendant thought that it

could reduce such accidents by eliminating applicants who

might be more likely to use drugs or alcohol at work.

With the support of the union that represented the long-

shore workers, Defendant began administering drug tests to

17890 LOPEZ v. PACIFIC MARITIME ASSOCIATION

new applicants. Defendant decided to make the disqualifica-

tion of applicants who tested positive permanent because it

thought that applicants who could not abstain from using an

illegal drug, even after receiving advance notice of an upcom-

ing drug test, showed less responsibility and less interest in

the job than applicants who passed the drug test. Thus, Defen-

dant’s reasons for rejecting applicants who test positive did

not include a calculation that an applicant might test positive

because of a drug addiction, rather than because of recre-

ational use.

[3] In short, nothing about the history of the one-strike rule

leads us to conclude that Defendant adopted the rule with a

discriminatory purpose. The ADA and the FEHA protect peo-

ple who are recovering or who have recovered from a drug

addiction; they do not protect people who are using illegal

drugs when they apply for a job. It was lawful for Defendant

to eliminate applicants who were using drugs when they

applied to be longshore workers. It was likewise lawful for

Defendant to disqualify those applicants permanently. Noth-

ing in the record suggests that Defendant targeted or

attempted to target recovered drug addicts, as distinct from

recreational users.

[4] Finally, Plaintiff argues that the district court improp-

erly granted summary judgment because Defendant learned of

Plaintiff’s drug addiction shortly after disqualifying him. We

fail to see how Plaintiff’s attempt to inform Defendant of his

status after Defendant disqualified him has any bearing on

whether Defendant decided to disqualify Plaintiff because of

his protected status. See Raytheon, 540 U.S. at 54 n.7 (“If [the

employer] were truly unaware that . . . a disability existed, it

would be impossible for her hiring decision to have been

based, even in part, on [the employee’s] disability. And, if no

part of the hiring decision turned on [the employee’s] status

as disabled, he cannot, ipso facto, have been subject to dispa-

rate treatment.”); Brundage v. Hahn, 66 Cal. Rptr. 2d 830,

836 (Ct. App. 1997) (affirming summary judgment on an

LOPEZ v. PACIFIC MARITIME ASSOCIATION 17891

employee’s ADA and FEHA disparate treatment claims

because the employer could not have discriminated on the

basis of a disability of which it did not know).

Plaintiff attempts to rely on our opinion in Hernandez v.

Hughes Missile Systems Co., 362 F.3d 564 (9th Cir. 2004), to

show that he has raised a genuine issue of material fact with

respect to his disparate treatment claim. But the facts in Her-

nandez clearly distinguish it from the circumstances here. In

Hernandez, an employer fired an employee for failing to pass

his drug test. Id. at 566. The employee later became sober and

reapplied. Unlike in this case, the employee included with his

new application a letter from his Alcoholics Anonymous

sponsor that informed the employer of the employee’s “steady

and consistent progress in his recovery from [his] disease.” Id.

That piece of evidence was crucial because, even though the

employer claimed that it had not read the letter, a reasonable

juror could have found that it did. Id. at 566-67. Conse-

quently, we reversed summary judgment because “a reason-

able jury could determine that [the employer] refused to re-

hire [the employee] because of his past record of addiction

and not because of a company rule barring re-hire of previ-

ously terminated employees.” Id. at 570.

[5] Plaintiff has no such evidence. His letter informing

Defendant of his drug addiction came only after Defendant’s

decision to disqualify him from further processing. Accord-

ingly, Plaintiff’s disparate treatment claim fails because there

is no evidence in this record that Defendant disqualified him

because of his protected status.

III. Plaintiff’s Disparate Impact Claim

Plaintiff’s disparate impact claim also fails. He argues that

the one-strike rule disparately affects recovering drug addicts

by eliminating anyone who previously tested positive for drug

use. But he offers only the bald assertion that this result must

be so. We disagree because, as we have noted, the rule does

17892 LOPEZ v. PACIFIC MARITIME ASSOCIATION

not necessarily screen out recovering drug addicts dispropor-

tionately.

A. Initially, we observe that Plaintiff has litigated his dis-

parate impact claim from start to finish on the familiar theory

taken from discrimination claims brought under Title VII, 42

U.S.C. §§ 2000e to 2000e-4. In Plaintiff’s opposition to

Defendant’s motion for summary judgment, for example, he

told the district court that, “[i]n order to state a prima facie

case of disparate impact discrimination, the Plaintiff must

show that employment practices that are facially neutral fall

more harshly on one group than another and cannot be justi-

fied by business necessity.” He cited two Title VII cases, Wat-

son v. Fort Worth Bank & Trust, 487 U.S. 977 (1988), and

Griggs v. Duke Power Co., 401 U.S. 424 (1971). His opening

brief to us restated the same principle, again citing Watson as

controlling precedent. The district court concluded from that

argument that Plaintiff intended to prove his disparate impact

claim through the usual method of proving “disparate impact”

as set out in Title VII cases. We did, too.

In a petition for rehearing filed after our original opinion

issued, however, Plaintiff changed his theory. With support

from several amici curiae,2 Plaintiff now argues that we erred

by using Title VII cases to guide our analysis, because dispa-

rate impact claims under the ADA require a different

2

Those amici are the U.S. Equal Employment Opportunity Commission,

the American Association of People with Disabilities, the American Dia-

betes Association, the Association on Higher Education and Disability, the

Disability Independence Group, the Disability Rights Advocates, the Dis-

ability Rights Education and Defense Fund, Inc., the Disability Rights

Legal Center, the Drug Policy Alliance, the Epilepsy Foundation of Amer-

ica, John A. Lancaster, Judge David L. Bazelon Center for Mental Health

Law, the Legal Aid Society—Employment Law Center, the National Dis-

ability Rights Network, the National Employment Lawyers Association,

the National Federation of the Blind, the National Health Law Program,

the New York Branch of the International Dyslexia Association, and the

Swords to Plowshares: Veterans Rights Organization.

LOPEZ v. PACIFIC MARITIME ASSOCIATION 17893

approach. Specifically, § 12112(b)(6) of the ADA makes

unlawful any “selection criteria that screen out or tend to

screen out an individual with a disability or a class of individ-

uals with disabilities unless . . . consistent with business

necessity.” Applying § 12112(b)(6) here, Plaintiff argues, he

need not make a “formal statistical showing” of a disparate

impact because the one-strike rule tends to screen out recov-

ered drug addicts, whether it does so in fact or not.

Plaintiff plainly waived his new theory, and we therefore

do not address it on the merits.3 To allow Plaintiff to make

this argument now, after the case has been litigated, appealed,

briefed, submitted, and decided, would deprive us of the assis-

tance of our colleague below and would deprive Defendant of

the opportunity to meet Plaintiff’s new argument in the proper

course. For those reasons, we adhere to the twin requirements

that a litigant must argue clearly all of his theories of relief,

both in the district court and in his opening brief, to preserve

those theories on appeal. Alameda Books, Inc. v. City of Los

Angeles, 631 F.3d 1031, 1044 (9th Cir. 2011); United States

v. City of Arcata, 629 F.3d 986, 992 (9th Cir. 2010). Because

Plaintiff failed to raise this new argument in either of those

places, he has waived it. We emphasize that we express no

view on what application, if any, § 12112(b)(6) would have

to the facts of this case. That question is not before us.

[6] B. To create a genuine issue of fact under the theory

that Plaintiff chose to pursue, Plaintiff must have produced

evidence from which a fact-finder reasonably could conclude

that the one-strike rule results in fewer recovered drug addicts

in Defendant’s employ, as compared to the number of quali-

fied recovered drug addicts in the relevant labor market. See

3

We respectfully disagree with our dissenting colleague’s assertion that

Plaintiff argued in his opening brief that § 12112(b)(6) applies. Plaintiff

cited the statute only once, as part of a generic overview of the statutory

framework; his actual argument neither cited § 12112(b)(6) nor encom-

passed, even without citation, the argument he now wishes he had made.

17894 LOPEZ v. PACIFIC MARITIME ASSOCIATION

Hazelwood Sch. Dist. v. United States, 433 U.S. 299, 308

(1977) (comparing the racial composition of the employer’s

work force to the racial composition of the qualified work

force in the relevant labor market). The record contains nei-

ther statistical nor anecdotal evidence to that effect.

Plaintiff did present to the district court an affidavit from

a forensic economist. The economist concluded that Plaintiff

had a viable disparate impact claim4 because, after

“[c]omparing the selection rate of the whole population [of

longshore worker applicants] (48%) versus the population of

the ‘protected group’ (0%),” she found it “evident that [the

one-strike rule] is in violation of the 80% Rule.” See 29

C.F.R. § 1607.4(D) (“A selection rate for any race, sex, or

ethnic group which is less than [80%] of the rate for the group

with the highest rate will generally be regarded by the Federal

enforcement agencies as evidence of adverse impact, while a

greater than [80%] rate will generally not be regarded by Fed-

eral enforcement agencies as evidence of adverse impact.”).

[7] Although the economist did not define the “protected

group,” she appears to have made the same mistake as Plain-

tiff. The correctly defined “protected group” for purposes of

the ADA and the FEHA is recovered drug addicts. It does not

matter whether such individuals applied to Defendant previ-

ously. If the number of recovered addicts in Defendant’s

workforce roughly reflects the number of recovered addicts in

the relevant labor market, then Defendant has not broken the

law under Plaintiff’s theory. By defining the “protected

group” as the number of recovered drug addicts who previ-

ously applied to Defendant and were rejected because they

failed a drug test, Plaintiff and his expert assume their own

conclusion. Although Defendant will never hire those people

4

We assume, without deciding, that the economist’s affidavit includes

some admissible evidence, while noting that it contains a legal conclusion.

See Sullivan v. Dollar Tree Stores, Inc., 623 F.3d 770, 777 (9th Cir. 2010)

(“Pure legal conclusions are not admissible as factual findings.”).

LOPEZ v. PACIFIC MARITIME ASSOCIATION 17895

and thus their selection rate always will be zero, we still do

not know how many recovered drug addicts Defendant hires

versus how many recovered drug addicts it turns away, nor do

we know how many of those turned away are not drug

addicts, recovering or otherwise.

[8] Plaintiff complains that our standard places an unfair

burden on him because he has no way to know how many

recovering or recovered drug addicts Defendant has disquali-

fied. Neither can he determine the proportion of recovering or

recovered drug addicts in the relevant labor market because,

he argues, state law prevents him from inquiring into a per-

son’s history of drug abuse. We recognize the challenge

involved in bringing a disparate impact claim of this kind, but

both logic and precedent require him to produce some evi-

dence that tends to show that the one-strike rule excludes

recovering or recovered drug addicts disproportionately.

Plaintiff introduced no such evidence. At the summary judg-

ment stage, a party no longer can rely on allegations alone,

however plausible they may be. Berger v. City of Seattle, 569

F.3d 1029, 1077-78 (9th Cir. 2009) (en banc). Because the

record contains no evidence supporting an essential element

of Plaintiff’s disparate impact claim, we must affirm the sum-

mary judgment on that claim.

IV. Conclusion

We recognize that the one-strike rule imposes a harsh pen-

alty on applicants who test positive for drug use. As Defen-

dant candidly concedes, many people question the rule’s

reasonableness in light of the fact that many people who use

drugs later rehabilitate themselves, as Plaintiff exemplifies.

But unreasonable rules do not necessarily violate the ADA or

the FEHA. Because Plaintiff failed to establish that Defendant

intentionally discriminated against him on the basis of his

protected status or that the one-strike rule disparately affects

recovered drug addicts, we affirm the summary judgment in

favor of Defendant.

17896 LOPEZ v. PACIFIC MARITIME ASSOCIATION

AFFIRMED.

PREGERSON, Circuit Judge, concurring in part and dissent-

ing in part:

I agree with the majority’s conclusion that the district court

did not err in granting summary judgment to Defendant on

Lopez’s disparate treatment claim. But, I disagree with the

majority’s decision to foreclose Lopez’s disparate impact

claim, and I would allow that claim to proceed for the follow-

ing reasons.

Disparate Impact Claim

Under § 12112(b)(6) of the Americans with Disabilities Act

(“ADA”), it is unlawful for employers to institute any “selec-

tion criteria that screen out or tend to screen out an individual

with a disability or a class of individuals with disabilities

unless . . . consistent with business necessity.” 42 U.S.C.

§ 12112(b)(6). Lopez contends that lifetime employment bans

for drug test failures are per se violations of the ADA because

they invariably exclude certain protected individuals from

employment based on past behavior related to their disability.1

Employers may not reject an applicant because the applicant

was previously addicted to drugs. See Hernandez v. Hughes

Missile Sys. Co., 362 F.3d 564, 568 (9th Cir. 2004). Yet

Lopez contends that this is exactly what the Pacific Maritime

Association’s lifetime hiring ban does. In support of his dispa-

rate impact claim, Lopez offered expert testimony that drug

addicts are disproportionately affected by the lifetime

employment ban. In addition, Lopez showed that at least

1

This is distinct from either current drug use or workplace misconduct,

both of which employers may lawfully penalize. See, e.g., Amy L. Hen-

nen, Protecting Addicts in the Employment Arena: Charting a Course

Toward Tolerance, 15 Law & Ineq. 157, 172-74 (1997).

LOPEZ v. PACIFIC MARITIME ASSOCIATION 17897

twenty-seven individuals were subjected to the ban during

roughly the same period he was. Because the identities of

those individuals are protected, the court does not know

which, if any, of them were drug addicts rather than casual

users, or which of the addicts, if any, were later rehabilitated.

It is clear, however, that a significant number of individuals

were impacted by the lifetime employment ban. It is also rea-

sonable to infer that at least some of those individuals, like

Lopez, were at one time addicted to drugs, but after participat-

ing in a drug rehabilitation program, were able to overcome

their addiction. Viewing the evidence in the light most favor-

able to the Plaintiff, and making all reasonable inferences in

his favor, Snead v. Metro. Prop. & Cas. Ins. Co., 237 F.3d

1080, 1087 (9th Cir. 2001), Lopez has put forward sufficient

evidence to establish a prima facie case of adverse impact on

the protected class.

Moreover, the district court erred in requiring statistical

evidence to support Lopez’s disparate impact claim under the

ADA. While statistical evidence is generally required to show

disparate impact in, for example, age discrimination cases2

and discrimination cases under Title VII of the Civil Rights

Act, 42 U.S.C. § 2000e et seq., such evidence is not required

for similar claims under the ADA:

It is not necessary to make statistical comparisons

between a group of people with disabilities and peo-

ple who are not disabled to show that a person with

a disability is screened out by a selection standard.

Disabilities vary so much that it is difficult, if not

impossible, to make general determinations about

the effect of various standards, criteria and proce-

dures on “people with disabilities.” Often, there may

be little or no statistical data to measure the impact

of a procedure on any “class” of people with a par-

2

See Pottenger v. Potlatch Corp., 329 F.3d 740, 749 (9th Cir. 2003).

17898 LOPEZ v. PACIFIC MARITIME ASSOCIATION

ticular disability compared to people without disabil-

ities.

Barbara T. Lindemann & Paul Grossman, Employment Dis-

crimination Law 953 (C. Geoffrey Weirich ed., 4th ed. 2007)

(quoting EEOC, Technical Assistance Manual § 4.3 (1992)).

Furthermore, it is manifestly unreasonable to require statis-

tical data regarding the number of recovering addicts either

hired by an employer or screened out by a drug test. Recover-

ing addicts are unlikely to identify themselves to employers,

or to a plaintiff’s investigator in a lawsuit such as this, even

if asked. One of the primary limitations suffered by individu-

als recovering from addiction is the continuing stigma associ-

ated with their prior drug and alcohol use.3 It is not an

accident that nearly every 12-step support group includes the

word “anonymous” in its name. Thus, statistical evidence on

recovering addicts is, as a practical matter, rarely available. It

follows that if we are to give effect to the ADA’s express pro-

tection of individuals recovering from drug and alcohol addic-

tion, we must, at the summary judgment stage, liberally

construe any evidence suggesting an adverse impact on those

individuals.

I do not suggest that we now determine whether lifetime

employment bans resulting from a positive drug test necessar-

ily violate the ADA. It is clear, though, that where such a test

is mandated by an employer who exercises singular control

over an industry spanning the whole west coast of the United

States, the potential impact of the policy is broad and perva-

sive. I would allow Lopez’s case to proceed to determine

whether Pacific Maritime Association’s lifetime employment

ban in fact has an adverse impact on recovering addicts.

Accordingly, I dissent from the majority’s affirmance of the

3

See Brief of the Betty Ford Center et al., as Amici Curiae Supporting

Respondent, Raytheon v. Hernandez, 540 U.S. 44 (2003) (No. 02-749),

2003 WL 21649671 at *21-22.

LOPEZ v. PACIFIC MARITIME ASSOCIATION 17899

district court’s grant of summary judgment in favor of Pacific

Maritime Association on the disparate impact claim.

Waiver of Lopez’s § 12112(b)(6) Claim

The majority concludes that Lopez has waived his disparate

impact claim under § 12112(b)(6) of the ADA, which, again,

makes unlawful any employment “selection criteria that

screen out or tend to screen out an individual with a disability

or a class of individuals with disabilities unless . . . consistent

with business necessity.” According to the majority, Lopez

failed to raise this argument prior to filing his petition for

rehearing, after the original opinion in this case issued. In the

majority’s view, Lopez intended to prove his disparate impact

claim through the more common method of proving disparate

impact set out in Title VII discrimination cases. I disagree

with the majority that Lopez has waived his disparate impact

claim under § 12112(b)(6) of the ADA for failure to raise it

until his petition for rehearing.

First, Lopez expressly cited to and quoted § 12112(b)(6) in

multiple portions of his appellate and district court briefs. For

example, in Lopez’s opening appellate brief, he argued that

“Title I of the ADA . . . is broad in scope . . . and expressly

prohibits employers from ‘using qualification standards,

employment tests or other selection criteria that screen out or

tend to screen out an individual with a disability . . . .’ ”

Lopez further argued that the “one-strike/automatic lifetime

ban rule is a per se violation of the ADA” and that “[u]nder

the ADA, an employer ‘discriminates’ against an otherwise

qualified individual with a disability ‘if the employer uses . . .

employment tests or other selection criteria that screen out or

tend to screen out an individual with a disability.’ ”

Lopez made similar arguments to the district court, belying

the majority’s contention that Lopez has “deprive[d] us of the

assistance of our colleague below and [has] deprived Defen-

dant of the opportunity to meet [Lopez’s] new argument in the

17900 LOPEZ v. PACIFIC MARITIME ASSOCIATION

proper course.” For example, Lopez argued that the ADA pro-

hibits “[p]ractices which tend to ‘screen out’ applicants with

disabilities.” Plaintiff’s Supplemental Memorandum of Points

and Authorities re: Motions for Summary Judgment at 6,

Lopez v. Pac. Mar. Ass’n et al., No. 2:06-cv-04154-GW-JTL

(C.D. Cal. Jan. 18, 2008), ECF No. 82 (citing § 12112(b)(6)).

Lopez further argued that Congress was “express in [its] pro-

hibition that employers may not deny work opportunities to

individuals no longer engaged in drug use.” Id. (citing

§ 12114(b)(1)). Pacific Maritime Association filed responses

to Lopez’s briefs, and the district court had an opportunity to

consider both parties’ arguments. See, e.g., Defendants’ Sup-

plemental Brief in Support of Motion For Summary Judg-

ment, Lopez v. Pac. Mar. Ass’n et al., No. 2:06-cv-04154-

GW-JTL (C.D. Cal. Feb. 7, 2008), ECF No. 90. Although the

district court ultimately ruled in favor of Pacific Maritime

Association, the district court expressly recognized in its deci-

sion that § 12112(b)[(6)] of the ADA prohibits employers

from using employment criteria that “screen out or tend to

screen out an individual with a disability.” Lopez v. Pac. Mar.

Ass’n et al., No. 2:06-cv-04154-GW-JTL, Statement of Deci-

sion on Motions for Summary Judgment at 8 (C.D. Cal. Apr.

3, 2009), ECF No. 134 (quoting Raytheon, 540 U.S. at 54).

The district court was clearly aware of Lopez’s § 12112(b)(6)

argument.

Second, although Lopez cited to Watson v. Forth Worth

Bank & Trust, 487 U.S. 977, 994-95 (1988)—a Title VII race

discrimination case—in his opening appellate brief, Lopez did

so merely to outline the basic steps required to establish a

prima facie case of disparate impact. Lopez did not argue that

Title VII discrimination cases (and their attendant statistical

proof requirement) govern the disposition of his case. Rather,

Lopez expressly argued that, in contrast to Title VII discrimi-

nation cases, there is no requirement that plaintiffs offer sta-

tistical evidence of discrimination in disparate impact cases

brought under the ADA. In Lopez’s view, “[t]he District

Court erroneously concluded that statistical evidence was

LOPEZ v. PACIFIC MARITIME ASSOCIATION 17901

‘required’ to state a prima facie case of ‘disparate impact’

. . . . [Pacific Maritime Association’s] lifetime ban on hiring

as applied to rehabilitated drug/alcohol addicts is a per se vio-

lation of the ADA and does not require any statistical evi-

dence to reach that conclusion.”

Lopez continued to press his position in his reply brief,

arguing that, “[t]here is no legal authority . . . supporting the

District Court’s decision that the ‘statistical requirements’ for

[race, age, and gender discrimination] causes of action are

applicable to a case brought by a rehabilitated addict.”4

Moreover, despite the majority’s contention to the contrary,

Lopez expressly argued in district court that statistical evi-

dence was not required in ADA disparate impact cases. See,

e.g., Plaintiff’s Opposition to Defendants’ Motion for Sum-

mary Judgment, or in the Alternative, Summary Adjudication

at 19, Lopez v. Pac. Mar. Ass’n et al., No. 2:06-cv-04154-

GW-JTL (C.D. Cal. Sept. 5, 2007), ECF No. 54; Plaintiff’s

Reply to Defendants’ Opposition to Plaintiff’s Motion for

Summary Judgment, or in the Alternative, Summary Adjudi-

cation at 6, No. 2:06-cv-04154-GW-JTL (C.D. Cal. Sept. 10,

2007), ECF No. 62. The district court disagreed, holding that

“Plaintiff’s argument that he can establish a claim of disparate

impact . . . without proffering relevant statistical evidence

must be rejected.” Lopez, No. 2:06-cv-04154-GW-JTL at 20.

Although I disagree with the district court’s conclusion, it is

clear from the previous statement that the district court had an

opportunity to consider Lopez’s arguments.

4

Lopez’s citation to the statistical evidence discussion in Griggs v. Duke

Power Co., 401 U.S. 424 (1971), is not a concession that a statistical

showing is required to prove his disparate impact claim. Instead, Lopez

emphasized that, although statistical proof is not required in ADA cases

(unlike Title VII discrimination cases), a plaintiff may use statistics to bol-

ster his case. Lopez merely argues that if a plaintiff chooses to proffer sta-

tistical evidence, cases such as Griggs are relevant to the court’s analysis.

17902 LOPEZ v. PACIFIC MARITIME ASSOCIATION

In light of the foregoing, I believe Lopez has sufficiently

argued that he has a disparate impact claim under

§ 12112(b)(6) of the ADA, that Title VII race discrimination

cases do not entirely govern the disposition of his case, and

that statistical evidence is not required in ADA cases such as

this. Moreover, Pacific Maritime Association had an opportu-

nity to respond to Lopez’s arguments in the district court and

on appeal, and the district court reached a reasoned decision

below. I thus cannot agree with the majority’s conclusion that

Lopez has waived his disparate impact claim under

§ 12112(b)(6) of the ADA.