Petition for Writ of Certiorari — Connolly v. Entex Information Services, Inc.

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011345 wR 7 20

No. OFFICE OF THE CLERK

IN THE SUPREME COURT OF THE UNITED STATES

JOSEPH A. CONNOLLY, Iil,

Petitioner,

Vv.

Entex Information Services, Inc.,

Respondent.

On a Petition for a Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

Stephen L. Brischetto

OSB #78156

Counsel of Record

520 S. W. Yamhill St.,

Suite 500

Portland, Oregon 97204

503-223-5814

Counsel for Petitioner

QUESTIONS PRESENTED FOR REVIEW

This case arises under the Americans with

Disabilities Act (“ADA”) and Oregon’s statutes prohibiting

discrimination against people with disabilities (“Oregon's

Statutes”). The case presents the following questions

regarding proof of claims under the ADA:

l. In a disability discrimination case brought

under the ADA, does a mentally disabled plaintiff create a

triable issue of fact defeating summary judgment through

evidence that satisfies the test this Court set forth in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and

Reeves v. Sanderson Plumbing Products, Inc. , 530 U.S. 133

(2000)?

Y I In a disability discrimination case brought

under the ADA, does a mentally disabled plaintiff's proof

that his employer failed to engage in an ‘interactive

process’ to arrive at a reasonable accommodation, as

required by 29 C.F.R. 1630.1(0)(3), create a triable issue of

fact sufficient to defeat a summary judgment motion?

Under Oregon's Statutes, this case presents the

following question:

3. Should the Ninth Circuit have followed the

precedent of Oregon’s Supreme Court to determine

whether the evidence submitted was sufficient to

withstand summary judgment to the claims brought under

Oregon’s Statutes?

<3

PARTIES TO THE PROCEEDING

The caption to the case contaiins the names of all

the parties to this proceeding.

TABLE OF CONTENTS

OPINIONS AND ORDERS ENTERED IN THIS CASE ....--- ]

BASIS FOR JURISDICTION OF SUPREME COURT ....---- 2

RULES AND STATUTES INVOLVED IN CASE .....--++++: 2

STATEMENT OF CASE ....----secrssessssrsse 2

Facts Relevant to Petition .....---++ssrrrrrrserren 2

Proceedings Below ....-----eeererrrrrsrss 8

DISCUSSION ...ccccccccccccccscccccsscsscseceeees 10

l.

A mentally disabled plaintiff seeking relief for

intentional discrimination under the ADA should not

be required to meet a more stringent standard of

proof to defeat a motion for summary judgment

than the standard imposed upon other victims of

discrimination under McDonnell Douglas Corp v

Green, 411 US 792 (1973) and Reeves v Sanderson

Plumbing Products, Inc., 530 US 133 (2000) ..... 11

Plaintiff's evidence that defendant failed to engage

in the interactive process required by 29 C.F.R

1630.1(c)(3) is sufficient to create a triable issue of

fact in a claim brought under the ADA ...ccccees 18

The Ninth Circuit failed to follow the precedent of

the Oregon Supreme Court on what is required to

withstand summary judgment on a claim under

Oregon’s Statutes, instead applying federal

EEE oc cucccecdecccsncessseeasocessoss 26

CONCLUSION

v

TABLE OF CITED AUTHORITIES

FEDERAL CASES

Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1116 (9th Cir. 2000)

ncbaacucddbenedordsacawoessnewsatweeneannesueseeen 24

Bultemmeyer v. Fort Wayne Community Schools, 100 F.3d

y ihe, .e B, | wewrrrrerrrrrryrrrrer re Ty 21, 22

Fjellestad v. Pizza Hut of America, Inc., 188 F.3d 944, 952

«to BS) Peperrererrrrr Tr Te Tre 23

Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 427

(RGD ccccdkadcsdendsndennscedenvesnaewenceewas 28, 29

Guaranty Trust Co. v. York, 326 U.S. 99 (1945) ......... 28

Hanna v. Plumer, 380 U.S. 460, 468 (1965) ............ 29

Kvorjak v. State of Maine, 259 F.3d 48 (Ist Cir. 2001) .... 20,

21

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) .. i,

10, 12-14

Mengine v. Runyon, 114 F.3d 415 (3rd Cir. 1997) ....... 22

Messick v. Horizon Industries Inc., 62 F.3d 1227 aos Cir.

| rr rrr rrr Ter rrr rT re rry rey er ort 28

Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133

CRED sctnnckessodkdsduseebsedensesuadnes i, 11, 15, 16

Rehling v. City of Chicago, 207 F.3d 1009, 1016 (7th Cir.

| PPPPerrrrrrerrr yy TT rye: rer rear 21, 22

vi

Snead v. Metropolitan Property & Casualty Ins. Co., 237 F.3d

SGSP CRG SOUND cccccvcccccnsadcsasasseesnceues 28

St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993) ... 15

Taylor v. Phoenixville School District, 174 F.3d 142, 163 (3d

+h PPT eee 22

Texas Department of Community Affairs v. Burdine, 450

US. DEP USRSE) cccccccccvescssstsussesenscnseuaues 15

United States Postal Service v. Aikens, 460 U.S. 711 or

United States v. Mead, 533 U.S. 218 (2001) ............ 20

Willis v. Conopco, Inc., 108 F.3d 282, 285 (11th Cir. 1997) i.

STATE CASES

City of Portland v. Bureau of Labor and Industries, 298 Or.

006, GED PBR IS CIGD cv ccccccvccsncdsavecesacs 26, 27

FEDERAL STATUTES

BO UBL. 9 TGSG ccccocseccsccsscedecssuabaceseuuue 2

BO USC, GEREe GSES oo cc ceccvdiecéindeesusneseuee 10

GRUB. GUE a ccctcnccavcessccanavecasaewe 2,11

GRUBA GIMGTE cccccccckccccececsessauvewssneu 11

CRUSE. GURTER ccccccivectccdesseceeweeuses 11,16

ADA, 2 USL. GIMN17 2... .csccscccccccccccscsceess 10

RUE cicacatssccacnessnusvisxcsesestiaeys 10

| ie: MND. cil licsccncactuausuevesdenvlenoransse 10

| STATE STATUTES

CN IIB vais cca sce ccncviasessdeneuncsiecsuy: 2

CR COND ook cide scons scsccassanvssnsens 10, 27

FEDERAL REGULATIONS

III iio cass ceninscivcadacinensaven 19, 24

QO CFR. 1690.10 S) ........ecceececccscesceeees i, 18

|

)

l

IN THE SUPREME COURT OF THE UNITED STATES

JOSEPH A. CONNOLLY, Ill, Petitioner

v.

ENTEX INFORMATION SERVICES, INC.,

Respondents

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Joseph A. Connolly, lll, respectfully petitions for a

writ of certiorari to review the judgment and opinion of the

United States Court of Appeals for the Ninth Circuit in this

case.

OPINIONS AND ORDERS ENTERED IN THIS CASE

The United States District Court for the District of

Oregon entered an Opinion and an Order on May 19, 2000,

granting defendant’s summary judgment motion against

plaintiff's complaint. Copies of that Opinion and Order are

included in the Appendix. The Ninth Circuit Court of

Appeals entered a Decree of the Court and a Memorandum

opinion on December 13, 2001, affirming the District Court.

The Memorandum was not reported. Copies of that

Decree and Memorandum are included in the Appendix.

2

The Ninth Circuit also denied plaintiff's Petition for

Rehearing En Banc by Order dated January 31, 2002, a copy

of which is included in the Appendix.

BASIS FOR JURISDICTION OF SUPREME COURT

The Decree of the Ninth Circuit was entered on

December 13, 2001. The Order denying plaintiff's Petition

for Rehearing En Banc was entered on January 31, 2002.

This Court has jurisdiction over this appeal pursuant to 28

U.S.C. § 1254 (1).

RULES AND STATUTES INVOLVED IN CASE

The Americans with Disabilities Act (“ADA”) is

found at 42 U.S.C. § 12101 et seq. Relevant portions of the

ADA are included in the Appendix. Oregon’s Statutes

prohibiting discrimination against individuals with

disabilities are found at O.R.S. 659.400 et seq. Relevant

portions of Oregon’s Statutes are included in the Appendix.

STATEMENT OF CASE

Facts Relevant to Petition

Petitioner Connolly went to work for Respondent

Entex Information Services, Inc. (“Entex”) on September

28, 1996 in Entex’s Intel Division. Entex hired Connolly

subject to a 120-day probationary period which he

successfully completed in January of 1997. Before he

went to work at Entex, Connolly successfully completed a

tour of duty with the United States Navy. He had also

succeeded at computer jobs, including receiving a

commendation from one employer for his abilities.

ee

3

Connolly started out in Entex’s “WinWin” team,

upgrading programs on Intel’s computers. All of the

positions on the WinWin team were temporary so that

Connolly eventually had to transfer to another job at Entex.

After completing his probationary period, Connolly

requested a transfer to a Desktop Support position,

repairing computer problems and assisting Intel users.

Connolly was in good standing with Entex at this time, and

when he transferred, managers of the Desktop Support

program interviewed him, discussed his technical

knowledge with him, and determined he was qualified for

the new job.

Connolly is a mentally disabled person. His

disabilities include Attention Deficit Disorder (“ADD”),

Attention Deficit with Hyperactivity Disorder (“ADHD”),

depression, and Asperger’s Syndrome, a form of autism.

When Connolly first went to work at Entex, Connolly filled

out an Entex form, indicating that he was a person with a

disability. Connolly wanted to alert Entex that he was

disabled and might need accommodation. The purpose of

that form is so that Entex can consider individuals under its

Affirmative Action Program. Connolly was never

considered for that program. Despite his disabilities,

Connolly had been meeting Entex’s expectations until he

transferred to Desktop Support. Entex did not discuss with

Connolly the fact that he was disabled when he applied for

the Desktop Support position nor did Entex discuss with

Connolly whether the Desktop Support position was

appropriate for someone with his disabilities. If they had,

Connolly would have explained the nature of his

disabilities. On reflection, Entex management has

conceded that they probably would not have hired

Connolly if they had known of his disabilities.

In February of 1997, about one month after Connolly

4

transferred into Desktop Support, the subject of closing a

specific number of “tickets” came up for the first time. At

that time the subject was presented as a motivational or

aspirational goal of twenty tickets per week. In early April

Connolly’s Campus Manager told Connolly that he was not

closing twenty tickets a week -— the “expected number”.

His managers told him his work was good but that he

needed to close more tickets. At that time, Connolly told

his managers that he was disabled and needed

accommodation. They agreed to meet with him weekly to

discuss how he was doing. They did not follow through

with that agreement.

In that same month Connolly requested a transfer to

open positions which did not have a ticket count. His

managers refused even to consider a transfer. Instead,

Entex chose to deal with Connolly in the disciplinary

system. Entex management testified that Connolly could

not be considered for a transfer since Entex had identified

him as having performance problems.

During the next months until Connolly was

terminated, he was considered for only one transfer, back

to the WinWin team. There were two problems with the

proposed transfer. First, the transfer was to a group

different than Connolly had worked with originally and

where he had been successful. After he consulted with the

supervisor of that group, Connolly determined that the job

would not be suitable for his disabilities, and advised Entex

management of that decision. The job was not installation

or repair of computers. The job was primarily gathering

information. Second, all the WinWin jobs were temporary,

and, in fact, ended within months of the proposed transfer.

From the time Connolly was put into discipline until

he was fired, his performance came under intense scrutiny

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5

in every way. Rather than encouraging the communication

process Connolly had requested, Entex began looking for a

way to terminate him. Entex management referred how to

handle Connolly to human resources with the comment,

“We squashed his request for a transfer so far right now.”

The response was to hold Connolly accountable for the

requirements of the job and

document when he doesn’t meet those

requirements. Manage up or manage out.

Since he has not suggested any specific

accommodation, there seems to be nothing

we can give consideration to change.

One of Connolly’s co-workers was assigned to monitor

Connolly’s activities surreptitiously, something that had not

been done with any other employee.

About the same time, Connolly learned his Manager

was being replaced. He asked three times for an

opportunity to discuss with the new Manager his

disabilities and how they might be accommodated so that

he could meet the standard he was told everyone else was

meeting. The new Manager did not respond to Connolly’s

requests. Instead, the first time Connolly met the new

Manager was when he was called to the Manager’s office

on June 24, 1997 and given a Letter of Concern Regarding

Your Performance. The Letter documented six asserted

problem areas, including the failure to close twenty tickets

a week. He was told that if he did not correct the problem

areas he would be disciplined “up to and including

termination.”

Connolly contacted his Human Resources

representative and asked for a meeting to see how he

could deal with these problem areas, in light of the fact

6

that his communications with Entex management were

becoming very threatening to him. The Human Resources

representative forwarded his request to Entex

management and responded that he should follow the

recommendations in the Letter of Concern. Connolly next

sent his managers information about the ADA and ADD. No

one discussed the information with Connolly.

On July 21, 1997 Connolly presented an Intensive

Task Recovery Plan which set forth an eight-week process

to try to achieve the ticket closing requirement. The

cornerstones of Connolly’s Plan were repetition and

weekly meetings with management with positive and

negative input. Entex responded on July 25, 1997 with a

Final Written Warning and a modified version of the Plan,

reducing the time period to four weeks and leaving little

room for repetition. In addition to the Plan which Entex

proposed, Entex offered Connolly only the following items:

a “checklist” and binder to use to take notes and track

data; a reduction in the number of tickets given to Connolly

at one time from four or five to one or two; and instruction

in the use of software to make a report.

The so-called requirement that Connolly close

twenty tickets a week became a hard and fast rule that

Connolly was never able to achieve. However, what Entex

managers did not tell Connolly was that while they were

holding him to this inflexible standard, that standard did

not apply to other employees, none of whom were

disabled. For his part, Connolly did not know how many

tickets his co-workers were closing. When that

information became available in discovery, it appeared that

virtually no technician closed twenty tickets a week

throughout the relevant time period. During the calendar

year of 1997, there were 274 technicians working at Entex.

Only four of those 274 technicians closed an average of

7

twenty tickets per. week for the entire year, and 169

technicians closed fewer tickets than Connolly.

During July and August of 1997, there were eight

technicians in Connolly’s work group, including Connolly,

who were supposedly subject to the twenty ticket

requirement. None of those technicians closed an average

of twenty tickets per week. One technician closed

between eighteen and twenty tickets per week. Every

other technician closed fewer than twelve tickets per

week. According to Connolly’s testimony, none of these

technicians was fired. Furthermore, according to

documents which Entex produced, there were not even

sufficient tickets available for the technicians in Connoily’s

work group to close twenty per person per week.

At summary judgment, Entex disputed all these

facts through affidavits of its management, maintaining that

“certain” people were subject to the ticket closing

requirement and that other technicians were disciplined

for failing to close sufficient tickets. However, Entex was

unable to explain who was subject to the “requirement”

and who was not. Furthermore, the evidence which Entex

provided by affidavit was contrary to deposition testimony

that everyone at the job site had production requirements

of eighteen to twenty tickets per week. The evidence was

also contrary to the deposition testimony of Connolly’s lead

that Connolly was the only person put on discipline and

was the only person management said was not pulling his

weight.

As to the qualitative issues which Entex

documented, Connolly disputed many of the specifics of

alleged missed work or missed meetings. Furthermore,

Connolly’s management agreed that Connolly received no

complaints from customers about his work even though all

8

other technicians generated complaints from time to time.

Furthermore, Connolly presented evidence from his

therapist that Connolly’s performance during the summer

of 1997 did not demonstrate what Connolly was capable of

doing because the pressure to which he was being

subjected was causing him to sink into depression and into

a worsening emotional condition.

The harder Connolly tried to obtain accommodation

so that he could meet Entex’ “requirements,” the more

difficult his work environment became. He told his lead he

had ADD. His lead’s response was that ADD was “bullshit.”

On another occasion the lead told Connolly to get off his

“high horse” or he would slap Connolly. Another employee

testified that he considered Connolly lazy even though he

acknowledged that laziness is a stereotype used for people

with learning disabilities. Connolly’s requests to meet

were ignored for up to thirty days.

During this entire time, Connolly tried to find a way

to propose his own accommodation. His therapist

contacted Human Resources to propose accommodations

which could have helped Connolly achieve the supposed

“requirements” of his job, including performing a work site

analysis and working with Connolly as a job coach. After

his first conversation with Human Resources, the

therapist’s calls and letters were ignored.

On August 14, 1997, Entex fired Connolly.

Proceedings Below

Petitioner filed his Complaint, in propria persona, in

the United States District Court for the District of Oregon on

January 21, 1999, alleging two claims for relief against

Entex Information Services, Inc., based on the ADA and on

9

Oregon’s statutes prohibiting discrimination against

disabled individuals. Entex filed its Answer and Affirmative

Defenses on April 14, 1999, denying the substance of

Connolly’s claims and asserting a number of affirmative

defenses. The only affirmative defenses at issue in this

appeal are Entex’s assertions that Connolly was not able to

perform the essential functions of his position with or

without reasonable accommodation, that all of Entex’s

actions were taken in good faith, and that all of Entex’s

actions were without malice, ill will or reckless

indifference to Connolly.

Entex filed a Motion for Summary Judgment on

December 16, 1999. The District Court granted that motion

on May 19, 2000. The basis for the District Court’s decision

was:

Because Connolly (1) has failed to

identify any reasonable accommodation that

would have allowed him to perform the

essential functions of a Senior Customer

Engineer in a Desktop Support position, and

(2) opted not to take the reassignment to the

WinWin position offered by Entex, he is not

a qualified individual with a disability under

the ADA or Oregon law and summary

judgment is appropriate.

App. at p. Ila.

Connolly appealed the District Court’s decision to

the United States Court of Appeals for the Ninth Circuit on

June 14, 2000. The Ninth Circuit entered an unpublished

Memorandum and Decree affirming the District Court on

December 13, 2001, reasoning:

10

Connolly argues that Entex failed to

provide reasonable accommodation

because it failed to enter the interactive

process with him, but Connolly does not

show that Entex did not make a good faith

effort to provide a reasonable

accommodation.

**z* 2%

Oregon Revised Statutes § 659.449

provides that Oregon law is to be construed

consistently with the federal ADA. Since we

have found that Entex did not violate the

federal ADA, a similar finding follows as to

Connolly’s claims under the Oregon statute.

App. at pp. 18a, 19a.

The District Court had subject matter jurisdiction

over plaintiff's federal claim pursuant to the ADA, 42 U.S.C.

§12117 et seq. and pursuant to 28 U.S.C. §1331 and 42

U.S.C. §1983. The District Court had supplemental ~-

jurisdiction over plaintiff's state law claim pursuant to 28

U.S.C. §1367 (a).

DISCUSSION

1. A mentally disabled plaintiff seeking relief

™ for intentional discrimination under the

ADA should not be required to meet a

more stringent standard of proof to defeat

a motion for summary judgment than the

standard imposed upon other victims of

d tion under McDonnell las

Corp vo Green, 411 792 (1973) and

Reeves v Sanderson Plumbing Products,

sn siete

11

Inc., 530 US 133 (2000).

The ADA prohibits discrimination against individuals

with disabilities as follows:

No covered entity shall discriminate

against a qualified individual with a disability

because of the disability of such individual in

regard to job application procedures, the

hiring, advancement, or discharge of

employees, employee compensation, job

training, and other terms, conditions, and

privileges of employment.

42 U.S.C. § 12112 (1).

Congress passed the ADA because Congress

determined that “some 43,000,000 Americans have one or

more physical or mental disabilities, and this number is

increasing...” 42 U.S.C. § 12101 (a) (1). One central

purpose of the ADA is “to provide clear, strong, consistent,

enforceable standards addressing discrimination against

individuals with disabilities.” 42 U.S.C. § 12101 (b)(2).

A “qualified individual with a disability” is defined

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. § 12111 (8). Reasonable accommodation, in

relevant part, is defined as:

12

job restructuring, part-time or modified work

schedules, reassignment to a vacant

position, . . . training materials or policies,

the provision of qualified readers or

interpreters, and other similar

accommodations for individuals with

disabilities.

This Court has never determined what are the

prima facie elements of a claim under the ADA. - However,

the statue itself suggests that a claimant under the ADA

must offer evidence:

- that the claimant is a qualified

individual with a disability;

- that the claimant was able to perform

the essential job functions of the

claimant’s employment, with or

without accommodation; and

- that the claimant was discriminated

against because of the claimant’s

disability.

This Court has articulated standards in its case law

for proving discrimination claims in the context of race, age

and gender, but this Court has not decided whether those

standards apply in an ADA claim. In McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973), this Court considered

the “order and allocation of proof in a private non-class

action challenging employment discrimination” and noted

the importance of the Fact Finder’s job and the evidentiary

problems for a claimant in a discrimination case. In that

case, the plaintiff alleged that his employer had

discriminated against him on the basis of his race. The

13

District Court dismissed his discrimination claims, and the

Eighth Circuit reversed that decision.

This Court considered how to allocate the burden of

proof and how that burden shifts upon a plaintiff's making

a prima facie case:

The complainant in a Title VIl trial

must carry the initial burden under the

statue of establishing a prima facie case of

racial discrimination. This may be done by

showing (i) that he belongs to a racial

minority; (ii) that he applied and was

qualified for a job for which the employer

was seeking applicants; (iii) that, despite his

qualifications, he was rejected; and (iv) that,

after his rejection, the position remained

open and the employer continued to seek

applicants from persons of complainant's

qualifications.

Id. at 802. This Court determined that plaintiff had met his

initial burden of proof, and noted, “The burden then must

shift to the employer to articulate some legitimate,

nondiscriminatory reason for the employee’s rejection.” /d.

Finally, this Court said that the reason proffered by the

employer should be examined:

Petitioner’s reason for rejection thus suffices

to meet the prima facie case, but the inquiry

must not end here. ... On remand,

respondent must . . . be afforded a fair

_opportunity to show that petitioner’s stated

reason for respondent’s rejection was in fact

pretext.

14

Id. at 804.

This Court examined the shifting burden of proof

again in United States Postal Service v. Aikens, 460 U.S. 711

(1983), another case involving racial discrimination, and

noted the importance of the fact finder’s job and the

difficulty for a claimant to prove discrimination:

All courts have recognized that the

question facing triers of fact in

discrimination cases is both sensitive and

difficult. The prohibitions against

discrimination contained in the Civil Rights

Act of 1964 reflect an important national

policy. There will seldom be “eyewitness”

testimony as to the employer’s mental

processes. But none of this means that the

trial courts or reviewing courts should treat

discrimination differently from other ultimate

questions of fact.

Id. at 716. Aikens, as quoted above, suggests that the

analysis set out in McDonnell Douglas should apply

generally to cases of discrimination. Therefore, the

requirements which a claimant under the ADA must meet

should be no more or less stringent than those

requirements in any other case, given the fact that much

must be inferred from circumstantial evidence. This is

particularly true since the ADA, unlike race and sex

discrimination statutes, imposes an affirmative duty to

provide reasonable accommodation to the disabled

population, in addition to a duty not to discriminate against

the disabled.

In St. Mary’s Honor Center v. Hicks, 509 U.S. 502

(1993), this Court expanded on the McDonnell Douglas

15

reasoning and heid:

The factfinder’s disbelief of the reasons put

forward by the defendant (particularly if

disbelief is accompanied by a suspicion of

mendacity) may, together with the elements

of the prima facie case, suffice to show

intentional discrimination. Thus rejection of

the defendant’s proffered reasons, will

permit the trier of fact to infer the ultimate

fact of intentional discrimination.

Id. at 511 (racial discrimination)(italics in original). In that

case, therefore, this Court allowed an inference of a

discriminatory mental state from proof that the employer's

proffered reason was a pretext.

Finally, in its most recent discussion of the order

and allocation of proof in a discrimination case, this Court

reaffirmed its decision that “it is permissible for the trier of

fact to infer the ultimate fact of discrimination from the

falsity of the employer’s explanation.” Reeves v. Sanderson

Plumbing Products, Inc., 530 U.S. 133 (2000) (age

discrimination):

Thus, a plaintiff's prima facie case,

combined with sufficient evidence to find

that the employer’s asserted justification is

false, may permit the trier of fact to conclude

that the employer unlawfully discriminated.

Id. at 148. See also, Texas Department of Community

Affairs v. Burdine, 450 U.S. 248 (1981) (gender

discrimination). In Reeves, this Court also stressed that in

reviewing the record, “the court must draw all reasonable

inferences in favor of the nonmoving party, and [the court]

16

may not make credibility determinations or weigh the

evidence.” Reeves, supra, at 150.

As this Court suggested in Aikens, the McDonnell

Douglas allocation of burden of proof should apply to a

claim brought under the ADA. However, unlike claimants

in race, gender and age discrimination cases, a claimant in

an ADA claim also has the right to reasonable

accommodation under the ADA. 42 U.S.C. § 12112

(b)(5)(A). Therefore, in the context of summary judgment

in an ADA claim, the following principles should apply:

- The claimant should have the burden

of raising an issue of fact as to each

element of the ADA claim, including

raising facts as to whether the

employee could have performed the

job or another available job with or

without reasonable accommodation;

: The burden should then shift to the

employer to establish facts

supporting a valid, non-discriminatory

motive for the adverse employment

action;

- The claimant should then have the

opportunity to demonstrate that the

employer’s proffered reason is

pretextual; and

- Evidence raising an issue of fact as to

whether the employer’s reason was

pretextual should be sufficient to

infer a discriminatory intent on the

part of the employer.

17

In this case, neither the District Court nor the Ninth

Circuit ever determined whether plaintiff's evidence was

legally sufficient to state a prima facie case of

discrimination under McDonnell Douglas nor whether

plaintiff's evidence created an issue of fact on the issue of

pretext. Had either the District Court or the Ninth Circuit

applied the McDonnell Douglas test, plaintiff's evidence

was plainly sufficient both to state a prima facie case of

discrimination and to create an issue of fact as to pretext.

Plaintiff's evidence was:

Plaintiff suffers from ADD, depression and

Ausberger’s Syndrome. Defendant did not

dispute that plaintiff's impairments are

sufficient to make him a person with a

disability under the ADA

Plaintiff successfully performed the WinWin

position, passed probation after 120 days

and became a regular employee.

Plaintiff's therapist gave expert testimony

that plaintiff was capable of performing the

Desk Top Support position with reasonable

accommodation.

Plaintiff offered both direct and

circumstantial evidence of a discriminatory

motive through evidence that (1) defendant

terminated plaintiff for failing to satisfy a

requirement of closing 20 tickets, where

defendant did not enforce the same

requirement against other similarly situated

employees and there was insufficient work

for plaintiff to satisfy the claimed

requirement; (2) defendant failed to

18

implement its Affirmative Action Program for

disabled persons; (3) defendant’s

supervisors ignored plaintiff's requests for

meetings and failed to follow through with

agreed upon meetings with plaintiff; (4)

defendant’s human resources managers

referred to “squashing” plaintiff's request for

one form of accommodation and (5)

plaintiff's lead worker declared plaintiff's

ADD to be “bullshit” and threatened to slap

plaintiff around.

Under the McDonnell Douglas test, this evidence is

plainly sufficient to create an issue of fact as to intentional

discrimination. There is no reason that a mentally disabled

plaintiff under the ADA should be subject to a more

demanding summary judgment standard than other victims

of discrimination, particularly in light of the fact that the

ADA imposes an affirmative duty to reasonably

accommodate the limitations imposed by plaintiff's mental

disability. In this case, by ignoring the McDonnell Douglas

test, both the District Court and the Ninth Circuit improperly

assumed the role of a trier of disputed facts.

2. Plaintiff's evidence that defendant failed

to initiate the interactive process required

by 29 C.F.R 1630.1(0 is sufficient to

create a triable issue of fact in a claim

b t e

This Court has yet to provide guidance to the District

and Circuit Courts concerning the ADA’s duty to provide

“reasonable accommodation.” Significant questions exist

as to how the parties determine what accommodation is

“reasonable,” how proof of reasonable accommodation fits

into the standards enunciated in McDonnell Douglas and its

19

progeny, and as to whether the “reasonableness” inquiry is

a question of law for the court or a question for fact for the

jury .

In the instant case, the Ninth Circuit focused on

reasonable accommodation in finding that “Connolly does

not show that Entex did not make a good faith effort to

provide a reasonable accommodation” and that “Entex

was not required to give him the reassignment of his

choice. ... Entex satisfied its accommodation obligation by

offering the WinWin position to Connolly.” App. at p. 19a.

Because the Ninth Circuit’s decision focuses on the

determination of only one issue, disregarding whether

Connolly has put forth facts sufficient to establish a prima

facie case, that decision is contrary to the standards which

this Court has established in McDonnell Douglas and its

progeny. In addition, the Ninth Circuit never considered

how Entex’s failure to enter into the interactive process fits

into the McDonnell Douglas analysis.

Connolly has consistently argued that Entex was

required to enter into an interactive process with him and

that Entex’s failure to do so was evidence of discrimination

precluding summary judgment. The source of the

interactive process is 29 C.F.R. 1630.1 (o)(3):

To determine the appropriate

reasonable accommodation it may be

necessary for the covered entity to initiate an

informal, interactive process with the

qualified individual with a disability in need

of the accommodation. This process should

identify the precise limitations resulting from

the disability and potential reasonable

accommodations that could overcome those

lirnitations.

20

Although this Court is not bound by regulations

promulgated by the Equal Employment Opportunities

Commission, this Court has found regulations promulgated

under authority from Congress to be deserving of weight.

See, e.g., United States v. Mead, 533 U.S. 218 (2001)

(treasury regulations).

The circuits are split on whether an employer is

required to enter into an interactive process with a

disabled employee in order to satisfy the employer’s

burden of providing reasonable accommodation and what

the effect is of such a failure. The positions taken by the

various circuits fall generally into two categories although

in some cases, the decisional law of the circuits is not

internally consistent.

Some circuits take the position that the court should

focus on determining whether the accommodation which

was Offered was reasonable. In that analysis, compliance

with an interactive process is one fact among many which

the court must consider in determining whether the

claimant has satisfied the claimant’s burden of producing

evidence. Such an approach, however, has the effect of

substituting the court’s factual determination of

reasonableness for the ultimate factfinder which is

contrary to the direction this Court offered in Aikens.

An example of that approach is the First Circuit.

That circuit has suggested that the need to engage in the

interactive process is decided on a case by case basis.

That circuit’s position is summed up in Koorjak v. State of

Maine, 259 F.3d 48 (1* Cir. 2001). In that case, the First

Circuit reviewed how other circuits had approached the

“interactive process” and stated:

Before delving into the substance of

-21

the accommodation issue, we address

appellant’s contention that the State violated

the ADA by failing to utilize an informal,

interactive process to make an

individualized assessment of his needs and

abilities. ... Courts have construed the

regulation as imposing various levels of

obligation. .. . This court has not taken so

categorical a stand on the interactive

process, preferring instead to resolve the

issue on a case-by-case basis.

Id. at 52. Therefore, the First Circuit rejected any notion

that failure to enter into the interactive process was itself a

violation of the ADA or even necessarily evidence of

discrimination.

This same analysis is present in case law from the

Eleventh and Seventh Circuits. See, Willis v. Conopco, Inc.,

108 F.3d 282, 285 (11" Cir. 1997) (plaintiff must

demonstrate a reasonable accommodation regardless of

defendant's investigation into potential accommodations);

Rehling v. City of Chicago, 207 F.3d 1009, 1016 (7" Cir.

2000) (claimant’s inability to point to available job as

accommodation defeats claim, and defendants’ failure to

enter into interactive process does not of itself create

liability).

However, the Seventh Circuit has been inconsistent

in how it has approached reasonable accommodation

claims. In Bultemeyer v. Fort Wayne Community Schools,

100 F.3d 1281 (7" Cir. 1996), the Seventh Circuit held that a

case alleging discrimination for failure to provide

reasonable accommodation did not even fall under the

McDonnell Douglas analysis and that the employer's

unwillingness to engage in the interactive process

22

precluded summary judgment in the employer's favor. In

contrast to that decision is Rehling, supra, which put onto

the claimant the burden of proving an available

accommodation.

In Bultemeyer, also, the Seventh Circuit rejected the

notion that the full burden to request reasonable

accommodation fell on the employee, particularly where

the disability was a psychological disability:

But properly participating in the interactive

process means that an employer cannot

expect an employee to read its mind and

know that he or she must specifically say “I

want a reasonable accommodation,”

particularly where the employee has a

mental illness.

Id. at 1285.

The notion that an employer’s failure to enter into

the interactive process may create liability by itself is at the

heart of the decisions of a number of circuits. For

example, in Mengine v. Runyon, 114 F.3d 415 (3™ Cir. 1997),

the Third Circuit endorsed the notion that an employer has

a duty to enter into the interactive process as part of

providing reasonable accommodation. /d. at 420-21. In

the summary judgment context, the Third Circuit has found

that “where there is a genuine dispute about whether the

employer acted in good faith [in the interactive process],

summary judgment will typically be precluded.” Taylor v.

Phoenixville School District, 174 F.3d 142, 163 (3° Cir. 1999).

The Eighth Circuit sees the employer’s failure to

enter into the interactive process as evidence that the

employer is acting in bad faith:

23

We tend to agree with those courts

that hold that there is no per se liability

under the ADA if an employer fails to engage

in an interactive process. .. . [T]he failure of

an employer to engage in an interactive

process to determine whether reasonable

accommodations are possible is prima facie

evidence that the employer may be acting in

bad faith. Under these circumstances, we

feel a factual question exists as to whether

the employer has attempted to provide

reasonable accommodation as required by

the ADA.

Fjellestad v. Pizza Hut of America, Inc., 188 F.3d 944, 952

(8 Cir. 1999).

The Ninth Circuit recently appeared to join the Third

and Eighth Circuits and even suggested that it would be

more deferential to to the interactive process than those

circuits:

employers, who fail to engage in the

interactive process in good faith, face liability

for the remedies imposed by the statute if a

reasonable accommodation would have

been possible. We further hold that an

employer cannot prevail at the summary

judgment stage if there is a genuine dispute

as to whether the employer engaged in good

faith in the interactive process.

Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1116 (9" Cir. 2000).

ironically, however, in the instant case, the Ninth Circuit

focused not on whether plaintiff offered evidence that

defendant failed to initiate the interactive process. Rather,

24

the court focused on whether Connolly identified specific

accommodations, whether the court felt the

accommodations Connolly identified were ‘reasonable’;

and, the court determined that offering Connolly a transfer

of the employer’s choosing was sufficient to avoid liability

under the ADA and to allow summary judgment in favor of

the employer, regardless of the Ninth Circuit’s decision in

Bamett. Therefore, the Ninth Circuit has also

demonstrated inconsistency in its internal decisional law.

Some of the courts which reject liability for failure

to enter into the interactive process focus on the language

in 29 C.F.R. 1630.1 (0)(3) which states that “it may be

necessary” to enter into the interactive process as an

indication that the interactive process is permissive rather

than mandatory. However, reading the regulation so

narrowly undermines the purpose of the ADA to provide

“clear, enforceable standards” to address the issue of

discrimination against the disabled. Furthermore, treating

the interactive process as a suggestion rather than a

requirement has the effect of placing an often-times

impossible burden on a claimant under the ADA. Since

ADA cases invariably arise where the employee has not

succeeded and has not received the accommodation

which the employee wanted, the employee will be in the

position of having to demonstrate that there was an

accommodation which would have worked without ever

actually having received that accommodation and without

going through a process even to identify such an

accommodation.

Connolly agrees that there are probably many

situations in which what is a reasonable accommodation

should be clear or where the employee has made the

determination of what is reasonable accommodation and

did not desire an interactive process. In those cases, the

25

employee could not insist on the interactive process.

However, in many cases, such as the instant case, where

the employee requests the interactive process, requiring

the employer to engage in the interactive process will

relieve the courts of having to determine whether the

accommodations suggested by the employer or the

employee are truly “reasonable.” Courts will only have to

determine whether the parties entered into the interactive

process in good faith.

In the context of a summary judgment motion, the

imposition of a requirement that the parties engage in the

interactive process also conforms with the standards set

out in this Court’s cases. Since Entex stipulated for the

purposes of the summary judgment motion that Connolly

was disabled, applying the McDonnell Douglas analysis,

Connolly had to raise issues of fact as to whether he was a

qualified individual capable of performing his job, or

another job, with or without accommodation, and whether

he was discriminated against by Entex. Connolly satisfied

his burden on the first element by presenting evidence that

the he successfully performed the WinWin job, passed a

probationary period of 120 days and became a regular

employee, by presenting expert testimony that he was

capable of performing the Desk Top Support position with

reasonable accommodation, by presenting

accommodations, including potential job transfers for

which he was not considered, allowing his therapist to act

as ajob coach, and by demonstrating that he asked for

accommodation including the interactive process and

defendant failed to respond. He satisfied his burden as to

the second element by producing evidence that Entex’s

primary asserted reason for firing him — his failure to close

sufficient tickets — was a pretext in that the standard was

not uniformly applied to other employees. In addition,

Connolly produced evidence that Entex’s management

26

refused to enter into the interactive process in order to find

an accommodation that would be reasonable and

effective. The evidence which Connolly submitted should

be sufficient to raise an issue of fact on each prima facie

element of his claim and on the issues of whether Entex’s

reasons were pretext, and on the ultimate question of

discrimination.

This Court should grant Connolly’s petition in order

to address this issue of allocation of burden of proof in an

ADA claim and to determine how a claimant’s right to

reasonable accommodation and the notion of the

interactive process affect the claimant's burden of proof.

3. The Ninth Circuit failed to follow the

t Oo u ourt

Oo t ulred to withs summa

t on’s

Statutes tead a federal

standards.

The Oregon Supreme Court has determined that a

person claiming discrimination in a state claim need only

present evidence to raise an issue of fact on the claimant’s

prima facie case in order to withstand a motion for

summary judgment. The Court implicitly rejected the

McDonnell Douglas analysis in City of Portland v. Bureau of

Labor and Industries, 298 Or. 104, 690 P.2d 475 (1984),

when it considered the possibility of shifting burdens of

proof in the employment context. The Bureau had made a

factual finding in favor of an employee on a gender

discrimination claim. The Supreme Court considered the

issue on review. The City took the position that the

Bureau’s determination could not be upheld because the

City had adduced evidence of a non-discriminatory

motivation which was uncontroverted. The City also

argued that it could overcome the permissible inference of

27

a discriminatory motive only by establishing an affirmative

defense.

The Supreme Court rejected both of those premises

and determined that the burden of proof to establish a

prima facie case remained on the plaintiff without shifting

to the defendant:

One who merely establishes a prima facie

case and rests does not necessarily win even

if the opponent adduces no evidence

whatsoever and merely relies on a denial of

alleged wrongdoing. The trier of fact may, in

such instance, decline to draw the

permissible inference necessary to establish

liability. Indeed, the trier of fact may

disbelieve the evidence adduced to establish

the fact from which the inferred fact is to be

drawn. In either case, the party with the

burden of persuasion would lose. On the

other hand, were the trier of fact to believe

the evidence adduced to prove the primary

fact and then draw a permissible inference

that establishes the charge, an employer

who rests will lose.

Id. at 114-15. The elements of a prima facie case under the

Oregon Statutes should be the same as they are under the

ADA because Or. Rev. Stat. § 659.449 provides that the

Oregon Statutes “shall be construed to the extent possible”

with similar provisions of the ADA.

The Ninth Circuit has followed the Oregon Supreme

Court’s direction on some occasions. See, €.g., Messick v.

Horizon Industries Inc., 62 F.3d 1227 (9 Cir. 1995). On

other occasions, the Ninth Circuit has not followed that

28

direction. See, e.g., Snead v. Metropolitan Property &

Casualty Ins. Co., 237 F.3d 1080 (9" Cir. 2001).

When faced with a motion for summary judgment,

therefore, a claimant would need only to raise an issue of

fact as to each element of the prima facie case. There

would be no shifting of the burden of proof. Connolly’s

claims under the Oregon statutes were filed under the

federal court’s supplemental jurisdiction. Therefore, the

court should apply state substantive law and federal

procedural law, as it would in a case brought under

diversity jurisdiction. Determining what is substantive law

is, as this Court has noted, “sometimes a challenging

endeavor.” Gasperini v. Center for Humanities, Inc., 518

U.S. 415, 427 (1996). In that case, this Court set forth the

following standards for determining whether a law is

substantive or procedural:

Guaranty Trust Co. v. York, 326 U.S. 99

(1945), an early interpretation of Erie,

propounded an “outcome-determination”

test: “[D]oes it significantly affect the result

of a litigation for a federal court to disregard

a law of a State that would be controlling in

an action upon the same claim by the same

parties in a State court?”... Alater

pathmarking case, qualifying Guaranty Trust,

explained that the “outcome-determination”

test must not be applied mechanically to

sweep in all manner of variations; instead,

its application must be guided by “the twin

aims of the Erie rule: discouragement of

forumshopping and avoidance of inequitable

administration of the laws.” Hanna v.

Plumer, 380 U.S. 460, 468 (1965).

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Gasperini, 518 U.S. at 427-28.

In this case, the difference is outcome

determinative because there is no shifting of the burden of

proof. Therefore, Connolly would have prevailed in the

motion for summary judgment only by raising an issue of

fact as to each element of his claim under the Oregon

Statutes.

The District Court and the Ninth Circuit failed to

follow the precedent of Oregon’s Supreme Court in

deciding Entex’s summary judgment motion under the

Oregon Statutes. This Court should grant Connolly petition

to determine whether the federal burden shifting should be

applied in federal courts to claims of discrimination against

disabled workers under state statutes.

CONCLUSION :

This Court should grant Connolly’s petition to

review these important questions under the ‘ADA and

Oregon’s Statutes.

Respectfully submitted,

Stephen L. Brischetto

Attorney at Law

520 SW Yarmhill St., Suite 500

Portland OR 97204

(503) 223-5814

Attorney for Petitioner