Opposition Brief — Martini v. Boeing Co.

anne MM

FILED

MAR 1 200!

No. 00-1221

OFMCS @F TE AR

In The

Supreme Court of the United States

LUC MARTINI

Petitioner,

THE BOEING COMPANY,

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

*

RESPONDENT’S BRIEF IN OPPOSITION

TO PETITION FOR A WRIT OF CERTIORARI

+

Russe_t L. PerisHo

Counsel of Record

Perkins Cort LLP

1201 Third Avenue

Seattle, WA 98101-3099

(206) 583-8888

Attorneys for Respondent

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

In Cleveland v. Policy Management Systems Corp.,

526 U.S. 795, 807 (1999), this Court stated: “When faced

with a plaintiff’s previous sworn statement asserting

‘total disability’ or the like; the court should require an

explanation of any apparent inconsistency with the neces-

sary elements of an ADA claim. To defeat summary judg-

ment, that explanation must be sufficient to warrant a

reasonable juror’s concluding that, assuming the truth of,

or the plaintiff’s good faith belief in, the earlier state-

ment, the plaintiff could nonetheless ‘perform the essen-

tial functions’ of her job, with or without ‘reasonable

accommodation.’ ” The question presented is:

Whether the Ninth Circuit Court of Appeals

properly upheld summary judgment pursuant

to Cleveland because Martini was unable to rec-

oncile his repeated representations of total dis-

ability with the requirements of a prima facie

case under the Americans with Disabilities Act

of 1990, 42 U.S.C. § 12101 and the Washington

Law Against Discrimination, RCW 49.60 et seq.

il

STATEMENT PURSUANT TO SUPREME COURT

RULE 29.6

The Boeing Company has no parent companies, sub-

sidiaries (except for wholly owned subsidiaries), or affili-

ates that have issued shares to the public.

iii

TABLE OF CONTENTS

ee 6 Be yy i

STATEMENT PURSUANT TO SUPREME COURT

ES ere ree ee ae li

OEEEEEED MPO WEPEIT EEE co ccccccccccdcccvcnscccecess 1

l. STATEMENT OF THE CASE ...............00. 1

i EPC Sip nadsccdsscccedsveddec 1

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C. THE DISTRICT COURT AND THE NINTH

CIRCUIT COURT OF APPEALS CON-

CLUDED THAT BOEING WAS ENTITLED

TO SUMMARY JUDGMENT ON MAR-

SRM 4 46's heaeecsebcteraccneeses 6

Il. REASONS FOR DENYING THE PETITION.... 7

A. THE PETITION DOES NOT MEET THE

HIGH STANDARD FOR A GRANT OF

CERTIORARI BECAUSE THIS COURT HAS

ALREADY DIRECTLY ADDRESSED THE

ISSUE AT BAR IN CLEVELAND V. POLICY

MANAGEMENT SYSTEMS CORP.......... 8

B. REVIEW BY THIS COURT IS NOT WAR-

RANTED BECAUSE THE NINTH CIRCUIT

COURT OF APPEALS CORRECTLY

APPLIED CLEVELAND IN AFFIRMING

SUMMARY JUDGMENT IN FAVOR OF

SA ee eer ree ene 11

_— RN

iV

TABLE OF CONTENTS - Continued

Page

C. THE ISSUE OF WHETHER THE NINTH

CIRCUIT PROPERLY DECLINED TO CER-

TIFY THE STATE LAW ISSUE INVOLVED

FAILS TO OFFER A COMPELLING REA-

SON TO GRANT CERTIORARI AS

REQUIRED BY SUPREME COURT RULE 10

Sls. SS 654605 6.66 bOS4SANS eae eneedehaes 22

Vv

TABLE OF AUTHORITIES

Page

CasEs

Cleveland v. Policy Management Systems Corp.,

— Bik @, frp eer res passim

Coleman v. Quaker Oats Co., 232 F.3d 1271 (9th

Gk: MEE 622 cbcahasendscncasabetecenl eee 14

Fell v. Spokane Transit Authority, 128 Wn.2d 618,

:@ + GBs. | | ee Gu EEE a ae ey 15

Graver Mfg. Co. v. Linde Co., 336 U.S. 271 (1949) ....18

Houston v. Hill, 482 U.S. 451 (1987)................. 19

In re Complaint of McLinn, 744 F.2d 677 (9th Cir.

1984), cert. denied, 488 U.S. 925 (1988)............ 22

Johnson v. Oregon, 141 F.3d 1361 (1998).......... 16, 17

Kees v. Wallenstein, 161 F.3d 1196 (9th Cir. 1998) ....15

Kennedy v. Applause, Inc., 90 F.3d 1477 (9th Cir.

FOUN i a éan0nn baad hihisaks citadel 14, 15

Lehman v. Lycoming County Children’s Services,

Oe Ab ROE 606640 6on vachcAckaen antennae 9, 19

Martini v. The Boeing Co., 88 Wn. App. 442, 945

P.2d 248 (1997), afft’d, 137 Wn.2d 357, 971 P.2d

OD CINE si RSENS Oat bo Oka bea passim

McDonnell Douglas Corp. v. Green, 411 U.S. 792

TUE Sch Checker dere ie ee ee 10, 14

Texas Dep’t of Community Affairs v. Burdine, 450

18 Se fe | | PEN gEE EERE RED RT 14

United States v. Johnson, 268 U.S. 220 (1925)........ 18

vi

TABLE OF AUTHORITIES - Continued

Page

RULES

Federal Rule of Civil Procedure 56.................. 19

Supreme Court Rule 10 .....cccccsscccsssccccccsceses 7

Washington Rule of Appellate Procedure 16.16(a) .... 19

Washington Superior Court Civil Rule 56(c)......... 19

CopEs

y fat | AE 8 PPrrererrrerire erry rece ree

Se Sas Oe SD o's ccccccccsacedsedesaseanaaien 14

Americans with Disabilities Act of 1990, 42 U.S.C.

EE 00 cseddseccdcesssassuaeseesesesaseacuvanen 1

GS Pe Bot). PPP rrr yer Pero rr or: 1, 14

Social Security Act, 42 U.S.C. § 422(c), 423(e)(1)..... 10

Washington Law Against Discrimination, RCW

MD.GO OF BOG oo cccccccscccccscceccseccccccsoscscsose 1

8p! |: PPerrrrrrrrrT rr re ripe ere 19

ae GPUS 06 606.00000000066eneesadannupanunees 1, 21

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STATUTES INVOLVED

This case involves the Americans with Disabilities

Act of 1990, 42 U.S.C. § 12101 (the “ADA”) and the

Washington Law Against Discrimination, RCW 49.60 et

seq. (the “WLAD”), and, in particular, plaintiff's burden

of proving that he is a “qualified individual with a dis-

ability,” that is, a person “who, with or without reason-

able accommodation, can perform the essential

functions” of his job. 42 U.S.C. § 12111(8); RCW 49.60.180.

Il. STATEMENT OF THE CASE

A. INTRODUCTION

Martini’s petition reflects a selective - and often mis-

leading — recitation of the facts. The bottom line is quite

simple: the Ninth Circuit properly upheld the entry of

summary judgment to The Boeing Company (“Boeing”)

pursuant to this Court’s decision in Cleveland v. Policy

Management Systems Corp. because Martini was unable

to reconcile repeated and ongoing representations of total

disability with his burden of proving he was qualified for

the position sought.

B. RELEVANT FACTS

1. Petitioner Has Been Receiving Disability

Benefits From the Social Security Adminis-

tration Since 1991.

Petitioner was employed by Boeing until the summer

of 1990, when he resigned from his job. On December 12,

1990, petitioner applied for social security disability ben-

efits (hereinafter, “SSD benefits”), claiming he had a dis-

abling condition that prevented him from working. SER

192-99, 209.1 Petitioner made the following representa-

tions (among others) in his application for SSD benefits:

I became unable to work because of my dis-

abling condition on July-16, 1990.2 I am still

disabled.

I agree to notify the social security administra-

tion if:

— my medical condition improves so that I

would be able to work, even though I have

not yet returned to work.

I know that anyone who makes or causes to be

made a false statement or representation of

material fact in an application or for use in

determining a right to payment under the Social

Security Act commits a crime punishable under

federal law by fine, imprisonment or both. I

affirm that all information I have given in con-

nection with this claim is true. —

SER 192-99.

1 Citations to the factual record below are abbreviated as

“CR” for Clerk’s Record, “ER” for Excerpts of Record, and

“SER” for Supplemental Excerpts of Record.

2 As the Social Security Administration (“SSA”) made clear

to Martini after he submitted his application, SSD benefits are

available only to individuals who are “unable to do any

substantial gainful work due to a medical condition. .. . ” SER

250.

On February 11, 1991, the SSA sent petitioner a letter

informing him that his application for SSA benefits had

been denied. SER 249-51. The letter explained petitioner’s

right to request reconsideration of the decision and fur-

ther explained what petitioner needed to prove in order

to obtain SSD benefits:

To be considered disabled, a person must be

unable to do any substantial gainful work due to a

medical condition which has lasted or is

expected to last for at least 12 months in a row.

The condition must be severe enough to keep a

person from working not only in his or her

usual job, but in any other substantial gainful

work.

Id. (emphasis supplied). Petitioner filed a request for

reconsideration, stating that his condition had worsened

in numerous respects since his initial application. SER

223-25, 226-34.

In the spring of 1991, the SSA engaged Dr. Harvey

Ries, a psychiatrist, to perform an independent medical

examination of petitioner. SER 262-63, 88-89, 101. Dr. Ries

diagnosed a major depressive disorder and a number of

physical impairments, and he concluded that petitioner

was “totally disabled,” i.e., unable to engage in gainful

employment, and had been so since the summer of 1990.

SER 275-77, 101-02, 132-33. After receiving Dr. Ries’s eval-

uation, the SSA determined on July 16, 1991, that peti-

tioner was indeed “disabled,” i.e., incapable of gainful

employment, and that he was entitled to SSD benefits of

$1052 per month. SER 244-48. Petitioner has been receiv-

ing SSD benefits continuously since that time, and his

monthly benefit at the time of his appeal to the Ninth

Circuit was $1208. SER 200-01, 203. Petitioner has made

no representations, and the record is devoid of any evi-

dence, that he has ceased receiving SSD benefits.

2. Petitioner Has Also Applied for and Been

Receiving Benefits From Boeing’s Long-

Term Disability Plan.

On May 21, 1991, petitioner applied for benefits

under Boeing’s long-term disability (“LTD”) plan. SER

8-27. The LTD plan pays benefits to participants who are

“totally disabled.” SER 28-78. The plan defines “totally

disabled” as (1) during the first two years of a period of

disability, the employee is “unable . . . to perform the

duties of [his] own occupation or other appropriate work

made available” and (2) thereafter, the employee is

“unable . . . to work at any reasonable occupation.” Id.

(emphasis supplied).

Petitioner represented on his LTD application that he

was “totally disabled and unable to work.” SER 18. When

asked on the application when he would be able to return

to work, petitioner wrote: “NO.” Id. The application

warned petitioner that making any false or misleading

statement on the application might constitute a crime. Id.

Petitioner’s application for LTD benefits was

approved in August 1991, and his benefits were back-

dated to January 17, 1991. SER 25. At the time of his

appeal to the Ninth Circuit, petitioner continued to

receive monthly LTD benefits of $1,229. SER 201-02.

3. After Seeking Employment with Boeing in

February 1996, Petitioner Testified During a

Workers’ Compensation Proceeding That

He Is Incapable of Gainful Employment.

After resigning from Boeing, petitioner applied for

workers’ compensation benefits, ultimately claiming that

a shoulder strain he experienced while lifting a piece of

luggage during a business trip aggravated his other

impairments — mental and physical — to the point where

he became “incapable of performing employment.” SER

148-49. On August 20, 1996, a judge of the Board of

Industrial Insurance Appeals (the “Board”) held a hear-

ing to determine, among other things, whether petitioner

“was capable of performing or obtaining gainful employ-

ment [from] August 21, 1990 to November 16, 1995, and

from there forward.” SER 147. During this hearing, Mar-

tini testified that he became totally disabled in the sum-

mer of 1990 and that he has been unable to work since

that time:

Q Have you ever worked at all after [your last

date of employment with Boeing in 1990]?

A No, I have not.

0

Have you been able to work after that date?

>

No, I have not.

Q_ Did the shoulder injury have an affect on the

psychiatric condition or did it manifest it?

A Yes, it was the causative thing that pushed

me over the edge from being employed suc-

cessfully to being totally disabled.

SER 143-44 (emphasis added). Significantly, petitioner’s

testimony at this hearing occurred six months after he

wrote his letter seeking employment at Boeing. Martini’s phy-

sician, Dr. Ries, concurred with Martini’s statements that

he became unable to work starting in the summer of 1990

and remained incapable of employment through, and as

of the hearing date. SER 101-02, 111-17, 133-34.5

C. THE DISTRICT COURT AND THE NINTH

CIRCUIT COURT OF APPEALS CONCLUDED

THAT BOEING WAS ENTITLED TO SUM-

MARY JUDGMENT ON MARTINI’S CLAIMS.

In February 1996, while still pursuing his workers’

compensation claim, petitioner wrote a letter to Boeing

expressing an interest in four positions. Martini was not

hired, and he filed this lawsuit on March 18, 1997.

3 In addition to receiving disability-related benefits from

three separate sources, Martini has also received front pay

damages from Boeing for the same period of time for which he

now seeks to recover. Martini initiated a separate lawsuit in

state court in 1993, claiming, among other things, that Boeing

forced him to quit his job. Martini presented testimony and

argument that he was entitled to damages because he was

totally unable to work. Despite significant disagreement as to

the cause and extent of his disability, a jury verdict was returned

in favor of Martini in October 1995. Martini v. The Boeing

Company, 137 Wn.2d 357, 362, 971 P.2d 45 (1999). Martini

recovered a front pay award of $480,932 based on the amount of

money he would have earned at his former Boeing job from the

date of his resignation through retirement age, less what he

would have earned if he had sought employment outside of

Boeing. Id.

On April 21, 1998, Judge Weinberg agreed with Boe-

ing that Martini’s medical evidence raised no genuine

issue of material fact with respect to his inability to

perform the essential functions of the job, with or without

accommodation, and recommended that the District

Court grant Boeing’s summary judgment motion, which

it did on June 2, 1998. Appendix to Certiorari Petition

(“Pet. App.”) at pp. 23a-33a.

Martini subsequently appealed, and on September

21, 2000 the Ninth Circuit Court of Appeals upheld the

district court’s grant of summary judgment to Boeing.

The Ninth Circuit concluded that based on all the evi-

dence, “Martini fails to sufficiently explain the inconsis-

tency between his assertions of total disability and his

discrimination claim to require submission to a jury,

therefore we affirm.” Pet. App. at pp. la-2a. Martini filed

a petition for rehearing, which was denied by order dated

October 31, 2000.

II. REASONS FOR DENYING THE PETITION

This case does not present a new legal issue, a split

among the circuits, a mis-application of Supreme Court

precedent, or any other compelling justification for grant-

ing certiorari as required by Supreme Court Rule 10. Less

than two years ago, this Court directly addressed the

issue presented by petitioner in Cleveland, and the Ninth

Circuit correctly applied that precedent to decide this

case. Instead of presenting a plausible justification for

certiorari, the Petition represents nothing more than an

attempt to gain a third rehearing on the merits in the

hopes of finally receiving a favorable result.

A. THE PETITION DOES NOT MEET THE HIGH

STANDARD FOR A GRANT OF CERTIORARI

BECAUSE THIS COURT HAS ALREADY

DIRECTLY ADDRESSED THE ISSUE AT BAR

IN CLEVELAND v. POLICY MANAGEMENT

SYSTEMS CORP.

1. Cleveland Held that Summary Judgment Is

Appropriate When an ADA Plaintiff Is

Unable to Reconcile Apparently Inconsis-

tent Representations of Total Disability

with the Requirements of a Prima Facie

Case Under the ADA.

This Court directly considered the underlying issue

in this case in Cleveland v. Policy Management Systems

Corp., 526 U.S. 795 (1999). In a unanimous decision, this

Court held that prior representations of total disability

will not automatically bar a disability discrimination

claim, nor erect a presumption against the plaintiff.

Instead, the plaintiff’s representations are relevant evi-

dence that will lead to summary judgment if the plaintiff

fails to provide a sufficient, reasonable explanation that

reconciles the prior statements of inability to work with

the plaintiff's burden of proving he is capable of working.

As stated by this Court:

[A] plaintiff’s sworn assertion in an application

for disability benefits that she is, for example,

‘unable to work’ will appear to negate an essen-

tial element of her ADA case - at least if she

does not offer a sufficient explanation. For that

reason, we hold that an ADA plaintiff cannot

simply ignore the apparent contradiction that

arises out of the earlier . . . disability claim.

Rather, she must proffer a sufficient explanation.

To defeat summary judgment, that explanation

must be sufficient to warrant a reasonable

juror’s concluding that, assuming the truth of,

or the plaintiff’s good faith belief in, the earlier

statement, the plaintiff could nonetheless ‘per-

form the essential functions’ of. [the] job, with or

without accommodation.

Cleveland, 526 U.S. at 806-07. The issue presented by

Cleveland, whether summary judgment is appropriate

when an ADA plaintiff fails to reconcile representations

of total disability with his burden of aemonstrating that

he is qualified under the ADA, is precisely the issue

presented in this case. Pet. App. at pp. la-2a, 29a. Because

this Court has already directly addressed this issue, a

grant of certiorari is inappropriate. See, e.g., Lehman v.

Lycoming County Children’s Services, 458 U.S. 502, 507

(1982) (explaining that certiorari may be appropriate

where the issue before the Court “is a question of impor-

tance not heretofore considered by this Court, and one

over which the Circuits are divided”).

Plaintiff offers nothing more than a minor factual

difference between the two cases to support his argument

that this Court’s holding in Cleveland is inapplicable:

Martini was a job applicant, whereas the Cleveland plain-

tiff was a current employee when the alleged wrongful

conduct occurred. Petition for Writ of Certiorari (“Peti-

tion”) at p. 13. Whether a disability discrimination plain-

tiff was a job applicant or an employee seeking to

continue his employment is not relevant to the real issue

in both cases, whether the plaintiff can prove he is quali-

fied for the position despite his own representations of

10

total disability. All discrimination plaintiffs, regardless of

whether they were current employees or job applicants,

must prove that they were qualified for the position in

question to survive summary judgment. E.g., McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973); Mar-

tini v. The Boeing Co., 88 Wn. App. 442, 451, 945 P.2d 248

(1997), aff'd, 137 Wn.2d 357, 971 P.2d 45 (1999). Martini’s

attempt to recharacterize the applicable issue and distin-

guish the clear holding in Cleveland is therefore unper-

suasive.

2. The Court in Cleveland Directly Considered

the Trial Work Period Regulations and

Underlying Policy in Reaching Its Holding.

Petitioner argues that a grant of certiorari is appro-

priate because “Supreme Court precedent . . . does not

address the relationship between the related purposes of

the ADA and the SSA to return disabled persons to

work.” Petition at pp. 11-12. This argument represents a

blatant misrepresentation of precedent to manufacture a

new legal issue where none exists. Petitioner ignores the

fact that this Court in Cleveland expressly considered the

interaction between the SSA and the ADA. The existence

of and the policy underlying the trial work period regula-

tions were factors in the Court’s decision not to impose a

per se bar or a presumption against ADA plaintiffs who

had applied for disability benefits. Cleveland, 526 U.S. at

805 (citing 42 U.S.C. § 422(c), 423(e)(1); 20 C.F.R.

§ 404.1592 (1998)). Instead, after carefully considering the

interaction between the SSA and the ADA, the Court

concluded that summary judgment is appropriate if an

—

11

ADA plaintiff is unable to sufficiently explain his own

assertions of total disability.

B. REVIEW BY THIS COURT IS NOT WAR-

RANTED BECAUSE THE NINTH CIRCUIT

COURT OF APPEALS CORRECTLY APPLIED

CLEVELAND IN AFFIRMING SUMMARY

JUDGMENT IN FAVOR OF BOEING.

Petitioner contends that the Ninth Circuit misapplied

this Court’s holding in Cleveland by applying “a com-

plete bar to employment for persons wishing to leave

disability.” Petition at p. 14. This assertion is unsupported

by the record. Even a cursory reading of the Ninth Cir-

cuit’s opinion demonstrates that it did not apply a “com-

plete bar” to Martini’s claims. Instead, after carefully

considering the facts of this case in light of the Cleveland

holding, the Ninth Circuit concluded that summary judg-

ment was appropriately entered because Martini “fail[ed]

to sufficiently explain the inconsistency between his

assertions of total disability and his discrimination

claim. ...” Pet. App. at pp. 1la-2a.

1. Martini Failed to Offer a Sufficient Expla-

nation for His Repeated Representations of

Total Disability and Was Therefore Unable

to Demonstrate that He Was Qualified

Under the ADA.

Summary judgment was appropriate in this case

under the Cleveland standard. Martini swore in several

forums that he was totally disabled, and his most recent

statement — in the course of his workers’ compensation

12

claim — was an unqualified representation, under oath, that

he is “totally disabled.” Pet. App. at p. 72a.

The Ninth Circuit properly considered the timing of

Martini’s representations as required by Cleveland and

found that the timing was particularly compelling: “It is

hard to imagine a stronger and more definitive represen-

tation of total disability than Martini’s testimony [in

August 1996] that he was totally disabled for a six year

period which included the date of his Boeing applica-

tion.” Pet. App. at p. 4a; Cleveland, 526 U.S. 805. Mar-

tini’s subsequent unsupported argument that his physical

condition had improved when he applied to work at

Boeing is fatally undermined by his own unqualified

statements of total disability.

Furthermore, Martini made ongoing representations

in several fora, including to the SSA, that he was incapa-

ble of working and accepted benefits for years based on

those representations. Unlike the plaintiff in Cleveland,

Martini never notified the SSA that he was able to work

as required by SSA regulations. This fact is especially

telling given that Martini made a sworn promise to notify

the agency when he became able to work. SER 192-99. His

failure to do so is not surprising in light of the fact that

the record is devoid of any evidence that Martini worked

at all, or even applied for a single other position, during

the entire six years of his professed total disability. Pet.

App. at p. 2a.

Most tellingly, Martini has never taken the position

with the lower courts, or even with this Court, that he is

Dictate tania ia

13

capable of working.* He has never, as required by Cleve-

land, proffered an explanation to reconcile his prior rep-

resentations of total inability to work, with his burden of

proving that he was qualified for the positions he sought

at Boeing. Martini simply argues that he “might” be able

to work and that Boeing should have hired him on a

“trial basis.” Petition at p. 13. Even Martini’s own physi-

cian asserts only that Martini might have succeeded in

“provisional employment.” Pet. App. at p. 61a.5 The ADA

and the Washington Law Against Discrimination

(“WLAD”), however, require proof that a plaintiff is qual-

ified to work. Cleveland, 526 U.S. at 806; Martini, 88 Wn.

App. at 451. The ADA and the WLAD do not require

employers to hire people who are not sure whether they

are qualified for the jobs for which they apply, and they

certainly do not allow such individuals to pursue law-

suits when they are not hired.

The only fact offered by Martini to counter the over-

whelming evidence that he was not qualified when he

applied to work at Boeing is a single employment appli-

cation, to Boeing, during the entire six-year period in

question. Petition at p. 15 (stating that Martini’s job appli-

cation is the “most important evidence” of his ability to

work). Martini’s employment application reflects no more

than his professed interest in a particular position, which

4 This fact alone distinguishes Martini’s claim from the one

in Cleveland and similar cases. In those cases, the plaintiffs

affirmatively asserted, for purposes of their ADA claims, that

they were capable of working. Martini fails even to do that.

5 It is important to note that the physician who made this

statement was Martini’s psychologist, and did not treat his

physical impairments. Pet. App. at p. 59a.

14

is insufficient to defeat a motion for summary judgment

as a matter of law. Cleveland, 526 U.S. 806 (requiring that

ADA plaintiff demonstrate that he or she is qualified to

survive summary judgment); Martini, 88 Wn. App. at 451,

945 P.2d at 253 (under state law a plaintiff cannot proceed

with a disability discrimination claim absent proof that he

was “qualified” to work). The requirements of a prima

facie case under the ADA and the WLAD would be

eviscerated if merely expressing an interest in gaining or

keeping employment were sufficient to survive summary

judgment. Indeed, it is difficult to imagine a single plain-

tiff who would be unable to meet this burden.

2. Because Martini Failed to Present Even a

Prima Facie Case of Disability Discrimina-

tion, Boeing’s Reasons for Not Selecting

Martini Are Irrelevant.

Under well settled Supreme Court and Ninth Circuit

precedent, Martini has the initial obligation to establish

his prima facie case of disparate treatment. McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973); Texas

Dep’t of Community Affairs v. Burdine, 450 U.S. 248,

253-54 (1981); Coleman v. Quaker Oats Co., 232 F.3d 1271,

1296 (9th Cir. 2000). A required element of plaintiff's

prima facie case is that he was a “qualified individual,”

that is 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.” See, e.g., Kennedy v.

Applause, Inc., 90 F.3d 1477, 1480 (9th Cir. 1996) (citing 42

U.S.C. § 12111(8) and 29 C.F.R. § 1630.2(m)). This same

analysis also controls Martini’s discrimination claims

15

arising under the WLAD. Kees v. Wallenstein, 161 F.3d

1196, 1199 (9th Cir. 1998) (“The court decides plaintiffs’

state antidiscrimination claims using the same analysis it

uses to interpret federal antidiscrimination law.”); accord

Fell v. Spokane Transit Authority, 128 Wn.2d 618, 911 P.2d

1319, 1327 (1996) (explaining that the WLAD requires a

plaintiff to prove a prima facie case of disability discrimi-

nation before shifting the burden to the employer to

prove a legitimate non-discriminatory reason for the

employment action).

Martini seems to argue that he should be able to

pursue a disability discrimination claim without proving

that he was qualified to work when he applied to Boeing.

In essence, Martini argues that Boeing is liable for not

considering accommodation, even though Martini has

failed to allege, much less offer evidence to support, that

he was qualified to work. This nonsensical proposition is

diametrically opposed to settled federal and state law.

See, e.g., Kennedy, 90 F.3d 1481-82 (to avoid summary

judgment, a plaintiff is required “to present eviden-

ce... to create at least a genuine issue of material fact on

the question of whether she was a qualified individual”);

RCW 49.60.180 (employer not obligated to hire applicant

who is unable to perform job); WAC 162-22-050 (same).

Martini attempts to sidestep his inability to prove a

prima facie case by misstating the issue and misrepre-

senting the facts. He claims that he should prevail

because Boeing erected “barriers of presumptive disabil-

ity” between him and the job he sought, and rejected him

“out of hand because he was on disability.” Petition at pp.

6, 13. The record is devoid of any evidence to support

16

these assertions. Boeing’s reasons for not selecting Mar-

tini were never reached below because they are irrele-

vant. Only once plaintiff has proven his prima facie case

does the burden shift to the employer to provide a legiti-

mate, non-discriminatory reason for the challenged

employment decision. Because Martini failed to prove he

was qualified, an essential element of his prima facie

case, summary judgment was appropriately entered and

upheld pursuant to Cleveland.

3. The Ninth Circuit Properly Considered the

Trial Work Period Regulations and Con-

cluded that Based on Cleveland and Ninth

Circuit Precedent, Martini Was Not a Quali-

fied Individual With a Disability.

Martini argues that a grant of certiorari is appropri-

ate because “the Ninth Circuit decision totally ignored

the need to address and harmonize the trial work period

provisions” with employers’ obligations under the ADA.

Petition at p. 17. Both this Court and the Ninth Circuit

have concluded that the Cleveland test is sufficiently

sensitive to the policies underlying both the SSA and the

ADA. Cleveland, 526 U.S. at 805 (expressly considering

existence of and policy underlying trial work period reg-

ulations); see also Johnson v. Oregon,‘141 F.3d 1361, 1367

n.3, 1369 (1998) (same). The Ninth Circuit fully consid-

ered the decisions and reasoning in Cleveland and John-

son. Pet. App. at pp. 2a-4a. Pursuant to those decisions,

the Ninth Circuit did not apply a per se bar to Martini’s

claim, but allowed him to attempt to explain the inconsis-

tencies in his statements. Id.

17

Other than their role as a factor underlying the Clev-

eland test, the trial work period regulations are irrelevant

here. The regulations obviously presuppose that the ben-

efits recipient is actually capable of working. Instead,

Martini argues that the mere existence of the trial work

period regulations is sufficient to render him a qualified

individual with a disability. Accepting this argument

would lead to the absurd result that all disability discrim-

ination plaintiffs would be deemed qualified for purposes

of the ADA solely because the regulations exist.

As this Court clarified in Cleveland, the SSA policy

encouraging a trial work period is not relevant to the

factual question of whether a given individual is capable

of employment. Cleveland, 526 U.S. at 807; Johnson, 141

F.2d at 1369 (holding that even with the existence of the

SSA’s trial work regulations, an individual’s “prior repre-

sentations may be so strong and definitive that they will

defeat the plaintiff’s prima facie case on traditional sum-

mary judgment grounds.”). Martini’s reference to the trial

work period allowed by the SSA does nothing to dispute

the fact that his prior representations of total disability

are so consistent and pervasive that he cannot prove a

prima facie case of disability discrimination.

4. Certiorari Is Inappropriate Because Peti-

tioner Presents Nothing More than a Dis-

puted Factual Issue.

Instead of offering a legitimate basis for a grant of

certiorari, Martini’s arguments boil down to nothing

more than a disputed issue of fact: whether Martini was

18

qualified for the position he sought. This is not an appro-

priate basis for a grant of certiorari. As this Court has

clearly stated, “We do not grant a certiorari to review

evidence and discuss specific facts.” United States v.

Johnson, 268 U.S. 220, 227 (1925).

It is clearly the function of the lower courts, not the

Supreme Court, to examine the facts and weigh evidence.

The district court and the Ninth Circuit had the full

record before them, and carefully considered the facts

presented in light of applicable precedent. Both courts

reached the same conclusion, that Martini could not

prove a prima facie case of disability discrimination.

Because this Court is typically loathe to grant certiorari

when two courts reach the same conclusion on a factual

matter, certiorari is not warranted in this case. See Graver

Mfg. Co. v. Linde Co., 336 U.S. 271, 275 (1949) (holding

that “a court of law, such as this Court is, rather than a

court for correction of errors in fact finding, cannot

undertake to review concurrent findings of fact by two

courts below in the absence of a very obvious and excep-

tional show of error.”). The Petition presents no evidence

of obvious and exceptional error. Instead, the record

amply demonstrates that Martini was not qualified for

the position sought.

19

C. THE ISSUE OF WHETHER THE NINTH CIR-

CUIT PROPERLY DECLINED TO CERTIFY

THE STATE LAW ISSUE INVOLVED FAILS TO

OFFER A COMPELLING REASON TO GRANT

CERTIORARI AS REQUIRED BY SUPREME

COURT RULE 10.

1. Certification Was Inappropriate Because

this Case Presents No New Issue of State

Law.

As petitioner’s own brief concedes, federal courts

have discretion in determining whether to certify an issue

to a state court. See Lehman Bros. v. Schein, 416 U.S. 386,

391 (1974). Certification is “manifestly inappropriate,”

however, where the case presents no new issue of state

law. Houston v. Hill, 482 U.S. 451, 471 (1987).

Washington law is also clear that certification to the

Washington Supreme Court is appropriate only if the

question at issue “is one which has not been clearly

determined.” Washington Rule of Appellate Procedure

16.16(a); RCW 2.60.020. The Ninth Circuit properly

declined to certify the issue of whether summary judg-

ment was appropriate because the issue before the court

was not an undecided issue of state law. Cleveland and

the Ninth Circuit decisions upon which the district court

and Ninth Circuit relied are based on Federal Rule of

Civil Procedure 56 (“FRCP 56”), which states that sum-

mary judgment shall be granted if the submissions of the

parties “show that there is no genuine issue as to any

material fact.” The parallel Washington standard is identi-

cal to FRCP 56. Washington Superior Court Civil Rule

56(c). Accepting Martini’s argument would mean that

every federal appeal involving summary judgment on a

20

state law claim would result in certification of a question

to state court.

Martini premises his certification arguments on a

false assumption that resolution of his claims turns on

possible differences between state and federal disability

discrimination laws. Martini’s arguments miss the mark,

in part because none of the differences between the ADA

and the WLAD noted by Martini have any relevance to

this case. Petition at p. 19. More importantly, resolution of

the issues in this case turns on whether summary judg-

ment against Martini was appropriate given the absence

of any issue of material fact on whether he was “quali-

fied” to work. Both the ADA and the WLAD require

proof of qualification to work as an element of a plain-

tiff’s prima facie case. Cleveland, 526 U.S. at 806; Martini,

88 Wn. App. at 451. Thus, the Ninth Circuit appropriately

declined to certify the issue to the Washington Supreme

Court because the state law issues involved are well

settled.

2. Martini’s Proposed Questions for Certifica-

tion Misstate the Issues.

Martini attempts to create new issues of state law by

mischaracterizing the issues involved in this case in his

proposed questions for certification. In his first question,

Martini asks whether prior statements of total disability

create a presumption that a plaintiff is not “qualified.”

Petition at pp. 18-19. The Supreme Court has already

decided this question in the negative, and the Ninth

Circuit properly applied Cleveland to the facts of this

case. Accordingly, this question is moot.

21

Martini’s second question asks whether an employer

is required to explore accommodation for any applicant

who states he is unable to work. Petition at p. 19. This

question only begs the real issue before the district and

Ninth Circuit - whether Martini, having failed to allege

or proffer evidence supporting that he was qualified to

work, can proceed with his WLAD failure-to-hire claim. If

Martini is suggesting that an employer must explore

accommodation for a job applicant who is not “qualified”

to work with (or without) accommodation, then the Ninth

Circuit properly declined to certify this issue, because the

answer is in the statute itself. RCW 49.60.180 (employer

not obligated to hire applicant who is unable to perform

job); WAC 162-22-050 (same); see also Martini, 88 Wn.

App. at 451, 945 P.2d at 253 (plaintiff’s prima facie case

must include proof that plaintiff was qualified to work).

Instead of demonstrating the existence of unresolved

issues of state law, Martini’s attempt to obtain certifica-

tion represents blatant tactical forum-shopping. Martini

could have argued to the trial court that his ADA claim

and WLAD claims are somehow different, but he chose

not to. Instead, he waited until the district court ruled

against him, then sought certification for the first time

with the Ninth Circuit to gain another hearing on the

merits in a different forum. The Ninth Circuit clearly

disfavors such manipulation of the certification process:

We believe that particularly compelling reasons

must be shown when certification is requested

for the first time on appeal by a movant who

lost on the issue below. Ordinarily, such a

movant should not be allowed a second chance

at victory when, as here, the district court

22

employed a reasonable interpretation of state

law.

In re Complaint of McLinn, 744 F.2d 677 (9th Cir. 1984)

(declining to certify issue to state court), cert. denied, 488

U.S. 925 (1988). Martini has offered no evidence or appli-

cable precedent to support his claim that the district court

improperly applied state law. In sum, the Ninth Circuit

properly declined certification.

Ill. CONCLUSION

For these reasons, the Petition for a Writ of Certiorari

should be denied.

Perkins Core LLP

By: Russet. L. PERIsHo

Attorney for Respondent