A “published” decision issued recently by a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit found that an employee fired for repeated attendance policy violations – which he later attributed to obstructive sleep apnea (OSA) – could not proceed with a lawsuit alleging unlawful disability discrimination, failure to accommodate, and failure to engage in the reasonable accommodation “interactive process” under California state law.
Applying an analysis consistent with that applied to claims brought under the federal Americans with Disabilities Act (ADA), the appeals court concluded in Alamillo v. BNSF Railway Co., No. 15-56091 (9th Cir. Aug. 25, 2017), that because the plaintiff’s infractions, and the resulting decision to take disciplinary action, occurred prior to his employer having any knowledge of his disability, his eventual discharge was not “because of disability.”
The Ninth Circuit also affirmed dismissal of the plaintiff’s failure to accommodate claim, observing that his employer made several exceptions to its attendance policy along the way which plaintiff still failed to follow. According to the court, an employer’s duty to provide reasonable accommodations “does not include excusing a failure to control a controllable disability or giving an employee a ‘second chance’ to control the disability in the future.”
A copy of the Ninth Circuit’s decision in Alamillo is available here.
Members of the Center for Workplace Compliance (CWC) can read more here.