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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2002
- **Citation:** 535 U.S. 1056

## Text

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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).

4
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4
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&
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29
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_1558%3A1. Public record. Not legal advice.