Nannette G. Hummel v. Maricopa County Adult Probation Department

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NANNETTE G. HUMMEL,

Plaintiff-Appellant,

v.

MARICOPA COUNTY ADULT
PROBATION DEPARTMENT,

Defendant-Appellee.

No. 19-16008

D.C. No. 2:16-cv-04381-JJT

MEMORANDUM
*

Appeal from the United States District Court
for the District of Arizona
John Joseph Tuchi, District Judge, Presiding

Submitted April 1, 2020
**

Pasadena, California

Before: WARDLAW, MURGUIA, and MILLER, Circuit Judges.

Nannette Hummel (“Hummel”) appeals the district court’s summary
judgment in favor of Maricopa County Adult Probation Department (“APD”) in
her employment action under the Americans with Disabilities Act (“ADA”). We

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED

APR 8 2020

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

2
review de novo a grant of summary judgment. Summers v. A. Teichert & Son, Inc.,
127 F.3d 1150, 1152 (9th Cir. 1997). We have jurisdiction under 28 U.S.C. §
1291, and we reverse and remand to the district court for further proceedings
consistent with this memorandum.
The ADA prohibits an employer from discriminating “against a qualified
individual on the basis of disability.” 42 U.S.C. § 12112. The ADA defines a
“qualified individual” as an “individual who, with or without reasonable
accommodation, can perform the essential functions of the employment position
that such individual holds or desires.” 42 U.S.C. § 12111(8) (emphasis added); see
also 29 C.F.R. § 1630.2(m).
Contrary to the district court’s conclusion, Hummel is not precluded from
being a “qualified individual” simply because she was unable to perform essential
functions of her position at the time of her termination. See Nunes v. Wal-Mart
Stores, Inc., 164 F.3d 1243, 1247 (9th Cir. 1999); Humphrey v. Mem’l Hosps.
Ass’n, 239 F.3d 1128, 1135 (9th Cir. 2001). In fact, a reasonable accommodation
may take the form of an extended leave of absence that will, in the future, enable
an individual to perform her essential job duties. Nunes, 164 F.3d at 1247;
Humphrey, 239 F.3d at 1135–36. It appears the district court erroneously failed to
consider whether Hummel’s leave extension request was a reasonable
accommodation that would enable her to perform the essential functions of her

3
position.
To avoid summary judgment in favor of his or her employer, an employee
need only show that an “‘accommodation’ seems reasonable on its face, i.e.,
ordinarily or in the run of cases.” U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 401
(2002). “Once the plaintiff has made this showing, the defendant/employer then
must show special (typically case-specific) circumstances that demonstrate undue
hardship in the particular circumstances.” Id. at 402. Importantly, the ADA “does
not require an employee to show that a leave of absence is certain or even likely to
be successful to prove that it is a reasonable accommodation,” and an employee
only needs “to satisfy the minimal requirement that a leave of absence could
plausibly have enabled [her] adequately to perform her job.” Humphrey, 239 F.3d
at 1136.
Viewing the evidence in the light most favorable to Hummel, there is a
genuine dispute of material fact regarding whether her requested accommodation
of an extension of her leave would have enabled her to perform the essential duties
of her job. The district court therefore erred in granting summary judgment on the
ground that Hummel was not a “qualified individual” without first determining if
there was a triable issue as to whether her requested extension of leave was a
reasonable accommodation. On remand, the district court may address in the first
instance whether there is a triable issue regarding whether Hummel’s additional

4
leave request would have posed an “undue hardship” for APD.
REVERSED AND REMANDED.