JERRY W. NEUFELD, Jr., an individual v. WINCO HOLDINGS, INC., DBA Winco Foods, an Idaho corporation

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JERRY W. NEUFELD, Jr., an individual,
Plaintiff-Appellant,
v.
WINCO HOLDINGS, INC., DBA Winco
Foods, an Idaho corporation,
Defendant-Appellee.
No. 16-15578
D.C. No.
1:14-cv-01505-DAD-JLT
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Kimberly J. Mueller, District Judge, Presiding
Argued and Submitted October 13, 2017
San Francisco, California
Before: TASHIMA and BYBEE, Circuit Judges, and LEITMAN,** District Judge.
Appellant Jerry Neufeld, Jr. worked as a cashier at a grocery store operated
by Appellee WinCo Holdings, Inc. Neufeld suffered from anxiety, and his
condition prevented him from coming to work on a regular and predictable basis.
FILED
OCT 20 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Matthew Frederick Leitman, United States District
Judge for the Eastern District of Michigan, sitting by designation.

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WinCo ultimately terminated his employment because he missed several days of
work and failed to submit a doctor’s note confirming that those absences were
caused by his anxiety.1 Neufeld then brought this action in which he alleges that
both his termination and WinCo’s conduct preceding the termination violated the
California Fair Employment and Housing Act, Cal. Gov’t Code § 12900 et seq.,
and California common law.
The district court held that Neufeld could not prevail on his FEHA claims
because regular and predictable attendance was an essential function of his job, and
he could not perform that function with or without a reasonable accommodation.
The court further held that Neufeld’s common law claim for wrongful termination
failed because it was derivative of his FEHA claims. We agree and affirm the
district court’s judgment.
The FEHA provides that “[i]t is an unlawful employment practice, unless
based upon a bona fide occupational qualification . . . [f]or an employer . . .
because of mental disability . . . to discharge [a] person from employment . . . .”
Cal. Gov’t Code § 12940(a). However, the FEHA “does not prohibit an employer
from . . . discharging an employee with a physical or mental disability . . . where
the employee, because of his or her physical or mental disability, is unable to
1 This termination was in accordance with WinCo’s progressive discipline
policy.
2

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perform his or her essential duties even with reasonable accommodations . . . .” Id.
§ 12940(a)(1). To state a “prima facie case of disability discrimination under
FEHA,” an employee must “show he or she (1) suffered from a disability, (2) was
otherwise qualified to do his or her job, and (3) was subjected to adverse
employment action because of the disability.” Nealy v. City of Santa Monica, 234
Cal. App. 4th 359, 378 (2015) (citation omitted).
The second element of the prima facie case is at issue in this appeal. To
satisfy that element – i.e., to demonstrate that he or she is a “qualified individual” –
an employee must show that he or she “is able to perform the essential functions of
his or her job, with or without reasonable accommodation.” Id. “‘Essential
functions means the fundamental job duties of the employment position the
individual with a disability holds or desires.’” Id. at 373 (quoting Cal. Gov’t Code
§ 12926(f)).
We agree with the district court that regular and predictable attendance was
an essential function of Neufeld’s employment as a WinCo cashier. Indeed,
“[e]xcept in the unusual case where an employee can effectively perform all work-
related duties at home, an employee who does not come to work cannot perform
any of his job functions, essential or otherwise.” Samper v. Providence St. Vincent
Med. Ctr., 675 F.3d 1233, 1239 (9th Cir. 2012) (citations and quotations omitted).
3

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Neufeld could not perform his primary job function – operating a WinCo cash
register – at home, and he has otherwise failed to establish that this is an “unusual
case” in which regular and predictable attendance is not an essential job function.
Nor did Neufeld demonstrate that he could perform his cashier
responsibilities with a reasonable accommodation. As the district court correctly
held, Neufeld’s proposed accommodations were not reasonable because they
would have exempted him from one or more of the essential functions of his
position.
Because Neufeld was not “otherwise qualified” to work as a WinCo cashier,
WinCo was entitled to summary judgment on Neufeld’s FEHA disability
discrimination claim and his derivative common law claim for wrongful
termination. Likewise, WinCo was entitled to summary judgment on Neufeld’s
remaining FEHA claims because he failed to show that he could perform the
essential functions of his position with a reasonable accommodation. Accordingly,
we AFFIRM the judgment of the district court in WinCo’s favor.
4

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Neufeld, Jr. v. Winco Holdings, Inc., 16-15578
LEITMAN, District Judge, dissenting:
I respectfully dissent. I believe that the correspondence from WinCo to
Neufeld dated June 29, 2012, and February 13, 2013, created a material factual
dispute as to whether Neufeld could perform the essential functions of his job as a
cashier with a reasonable accommodation. I would vacate the judgment of the
district court and remand for further proceedings.
FILED
OCT 20 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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