Michelle Livingston v. FRED MEYER STORES, INC., an Ohio corporation

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHELLE LIVINGSTON,
Plaintiff - Appellant,
v.
FRED MEYER STORES, INC., an Ohio
corporation,
Defendant - Appellee.
No. 08-35597
D.C. No. 3:06-CV-01825-HA
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Ancer L. Haggerty, Senior District Judge, Presiding
Argued and Submitted July 15, 2010
Portland, Oregon
Before: GOODWIN, PREGERSON, and WARDLAW, Circuit Judges.
Michelle Livingston (“Livingston”) sued defendant Fred Meyer Stores in
federal district court, alleging disability discrimination and retaliation under the
Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12110, et seq., and Oregon
FILED
JUL 21 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Rev. Stat. ch. 659A.100, et seq. Livingston worked for Fred Meyer Stores as a
wine steward from April 2005 until November 2006. Livingston suffers from a
vision impairment that affects her ability to safely drive and walk outside after
dark. In the fall of 2005, Livingston’s supervisor granted Livingston’s request to
work a modified schedule during the fall and winter months so that she could
minimize driving after dark. In the fall of 2006, however, Fred Meyer Stores
denied Livingston’s request for a modified schedule, even though the store had not
experienced any hardship the previous year when Livingston was permitted to
work under a modified schedule. In fact, Livingston was credited with increasing
wine sales and improving the store’s ranking when she worked under the modified
schedule. When Livingston refused to work her scheduled shift, Fred Meyer fired
her.
The district court granted summary judgment in favor of Fred Meyer Stores
on all of Livingston’s claims. The district court determined that Livingston did not
have a disability under the ADA because her vision impairment did not
substantially limit any major life activity. In the alternative, the district court
concluded that Fred Meyer Stores had a legitimate, non-discriminatory reason for
firing Livingston. We have jurisdiction under 28 U.S.C. § 1291, and we reverse.
I. Disability

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1 We need not reach Livingston’s alternative arguments that her vision
impairment substantially limits her major life activities of walking, driving,
working, and transportation.
3
The district court held that Livingston did not have a disability under the
ADA because her vision impairment did not substantially limit any major life
activity. We disagree. Livingston has raised a genuine issue of material fact that
she has a disability under the ADA because she is substantially limited in the major
life activity of “seeing.” 1
It is beyond dispute that “seeing” is a major life activity. See 29 C.F.R.
§ 1630.2(i); see also E.E.O.C. v. United Parcel Serv., Inc., 306 F.3d 794, 801 (9th
Cir. 2002) (“There is no question . . . that ‘seeing’ is a major life activity.”). A
person’s ability to see is “substantially limited” if she is “[s]ignificantly restricted
as to the condition, manner or duration under which [she] can [see] as compared to
. . . the average person.” 29 C.F.R. § 1630.2(j)(1). Livingston’s impairment
prevents her from safely driving, walking, or leaving her house alone at night.
Because an average person could safely drive, walk, and leave her house at night,
Livingston is substantially limited in the major life activity of seeing. See, e.g.,
Colwell v. Rite Aid Corp., 602 F.3d 495, 502 (3d Cir. 2010) (holding that a
reasonable jury could find that plaintiff with monocular blindness was substantially
limited in her ability to see because she could not drive at night); Capobianco v.

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New York, 422 F.3d 47, 58-59 (2d Cir. 2005) (holding that plaintiff’s permanent,
uncorrectable night blindness substantially limited his major life activity of seeing
because he could not safely drive, walk, run, ride a bicycle, or engage in outdoor
nighttime activities unless he was in the most familiar and well-lit surroundings).
Accordingly, Livingston has raised a triable issue of fact that she has a disability
under the ADA.
II. Reasonable Accommodation
An employer has an affirmative duty to provide reasonable accommodations
to individuals with disabilities. 42 U.S.C. § 12112(b)(5)(A); 29 C.F.R. §
1630.9(a). Although reasonable accommodations include modified work
schedules, 42 U.S.C. § 12111(9)(B); 29 C.F.R. § 1630.2(o)(2)(ii), the district court
held that Fred Meyer Stores was not obligated to grant Livingston’s request for a
modified schedule because the duty to accommodate does not extend to “commute-
related limitations.” We disagree.
We have recognized that an employer has a duty to accommodate an
employee’s limitations in getting to and from work. See Humphrey v. Memorial
Hospitals Ass’n, 239 F.3d 1128, 1135 (9th Cir. 2001) (holding that employer had a
duty to accommodate employee with obsessive compulsive disorder, which
interfered with her ability to get to work on time, or at all, but did not affect her

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2 Although Livingston’s claim arises under the ADA, while the Buckingham
plaintiff’s claim arose under the Rehabilitation Act, the same standards are used to
determine whether unlawful discrimination has occurred under both Acts. See
Walton v. U.S. Marshals Serv., 492 F.3d 998, 1003 (9th Cir. 2007); see also
McLean v. Runyon, 222 F.3d 1150, 1153 (9th Cir. 2000) (analyzing a
Rehabilitation Act accommodation claim under the same standard as the ADA).
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ability to function effectively as a medical transcriptionist); see also Colwell, 602
F.3d at 506 (holding that “the ADA contemplates that employers may need to
make reasonable shift changes in order to accommodate a disabled employee’s
disability-related difficulties in getting to work”). Moreover, we have held that
“employers are not relieved of their duty to accommodate when employees are
already able to perform the essential functions of the job.” Buckingham v. United
States, 998 F.2d 735, 740 (9th Cir. 1993). 2 Therefore, Fred Meyer Stores had a
duty to accommodate Livingston’s inability to finish her scheduled shift, even
though her disability did not affect her ability to function effectively as a wine
steward.
Livingston’s requested accommodation–a modified schedule that permits her
to work an earlier shift–is reasonable because Fred Meyer did not experience any
hardship when Livingston worked a modified schedule the previous year. In fact,
wine sales increased during that time. Accordingly, Livingston has raised a triable

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issue of fact that Fred Meyer Stores failed to reasonably accommodate her
disability.
III. Interactive Process
Employers are required to engage in an interactive process with employees
to identify and implement appropriate reasonable accommodations. See 29 C.F.R.
§ 1630.2(o)(3). The interactive process is triggered by a request for
accommodation or an employer’s recognition of the need for accommodation. See
Barnett v. U.S. Air, Inc, 228 F.3d 1105, 1112 (9th Cir. 2000) (en banc), vacated on
other grounds by 535 U.S. 391 (2002). Failure to engage in the interactive process
in good faith results in employer liability under the ADA when a reasonable
accommodation would otherwise have been possible. Id. at 1116.
We disagree with the district court’s conclusion that Fred Meyer Stores
satisfied its duty to interact in good faith merely by requesting additional
information. No one at Fred Meyer Stores doubted that Livingston had a vision
impairment and everyone agreed that the store had not experienced any hardship as
a result of Livingston’s modified schedule the previous year. Nevertheless, Fred
Meyer Stores denied Livingston’s request without providing a meaningful dialogue
or explanation of its decision. Accordingly, Livingston has raised a triable issue of
fact that Fred Meyer Stores failed to engage in the interactive process in good faith.

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IV. Unlawful Discharge
“To prevail on a claim of unlawful discharge under the ADA, the plaintiff
must establish that he is a qualified individual with a disability and that the
employer terminated him because of his disability.” Humphrey, 239 F.3d at 1133.
To raise a triable issue of fact that she was terminated because of her disability,
Livingston must show that her disability was a “motivating factor” in the
termination decision. See Head v. Glacier Northwest, Inc., 413 F.3d 1053, 1065
(9th Cir. 2005). Next, Fred Meyer Stores must provide a non-discriminatory
reason for the discharge. Snead, 237 F.3d at 1093. Finally, Livingston has the
burden of proving that the employer’s reason was pretextual. Id. at 1093.
The district court granted summary judgment against Livingston on her
unlawful discharge claim, concluding that Livingston’s refusal to work her
scheduled shift was a legitimate reason for firing her and that Livingston failed to
demonstrate pretext. We disagree. Livingston’s disability interfered with her
ability to finish her scheduled shift during the fall and winter months because she
could not safely drive home after dark. It is well established that conduct resulting
from a disability is considered to be part of the disability, rather than a separate
basis for termination. See Humphrey, 239 F.3d at 1139 (holding that plaintiff
raised a triable issue of fact that she was terminated because of her disability where

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3 Livingston also claims that Fred Meyer Stores retaliated against her for
requesting an accommodation in violation of 42 U.S.C. § 12203(b) and Or. Rev.
Stat. § 659A.109. Because the district court did not address this claim, we remand
for the district court to consider this claim in the first instance.
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her disability caused the absenteeism and tardiness for which she was fired).
Because Livingston has presented evidence that her disability prevented her from
completing her scheduled shift, and that she was fired for this reason, she has
raised a triable issue of material fact that she was terminated because of her
disability.
V. Conclusion
We hold that Livingston raised a triable issue of material fact that she has a
disability and was terminated because of her disability. We also hold that
Livingston has raised a triable issue of material fact that Fred Meyer Stores failed
to reasonably accommodate her and failed to engage in the interactive process in
good faith. We reverse the district court’s order granting summary judgment in
favor of Fred Meyer Stores and remand for proceedings consistent with this
disposition.3
REVERSED AND REMANDED.

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