BNSF Railway Company recently obtained a decisive victory in the Ninth Circuit Court of Appeals, with the Court affirming a grant of summary judgment in its favor on an employee’s FEHA claim. The case, Alamillo v. BNSF Railway Co., was decided August 25, 2017, and underscores the importance of the three-step burden-shifting analysis for employment discrimination cases set forth by the Supreme Court in McDonnel Douglas Corp. v. Green.  In Alamillo, not only was the plaintiff unable to establish a prima facie case of discrimination, the court found that even if he had been able to do so he had presented no evidence that the employer’s stated non-discriminatory reasons for its employment actions were pretextual.

The case is interesting because Alamillo, an “extra board” or on-call locomotive engineer, was subjected to discipline for missing calls to work before he obtained a diagnosis of obstructive sleep apnea, which he then claimed explained his failure to hear and answer his employer’s calls to his cell phone. The district court granted summary judgment to BNSF, concluding that BNSF could not have discriminated against Alamillo based on his disability at a time when Alamillo had no diagnosis. The Ninth Circuit agreed, pointing out that the FEHA prohibits employers from taking adverse employment actions against an employee because of the person’s disability. Where neither Alamillo nor BNSF knew that Alamillo had obstructive sleep apnea, Alamillo could not establish a prima facie case of discrimination based on this alleged disability.

The court went on to address the third prong of the McDonnel Douglas test, which requires an employee who has established a prima facie case, and has received a non-discriminatory reason for the employer’s adverse employment action, to present evidence from which a jury could conclude the employer’s stated reason was pretextual. In this case, BNSF presented evidence that it disciplined and ultimately dismissed Alamillo because he repeatedly missed calls to report to work. Alamillo was unable to show this stated reason for his dismissal was untrue, or present any evidence that the true reason for his dismissal was discriminatory in nature. The court also observed that Alamillo could not show that his obstructive sleep apnea actually caused his attendance problems. Alamillo could have provided his employer with a land-line and/or pager number as backup if he did not answer his cell phone, set his alarm for 5:00 am when BNSF would typically call, checked the electronic job board every day, or simply requested a transfer to a normal five-days-per week schedule with regular hours. All of these alternatives were within Alamillo’s control, and the court held that BNSF had no duty to provide a “reasonable accommodation” of “excusing a failure to control a controllable disability….”

This case is a good example of all the avenues open to an employer to defend itself against a discrimination claim, and the importance of addressing each and every prong of the McDonnel Douglas burden-shifting analysis on summary judgment. One simply never knows on which prong the court may choose to hang its hat.