Sara Hamilton v. Glaxosmithkline, LLC

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SARA HAMILTON,
Plaintiff-Appellant,
v.
GLAXOSMITHKLINE, LLC,
Defendant-Appellee.
No. 19-35973
D.C. No. 9:18-cv-00054-DLC
MEMORANDUM*
Appeal from the United States District Court
for the District of Montana
Dana L. Christensen, District Judge, Presiding
Submitted February 2, 2021**
Seattle, Washington
Before: GRABER, McKEOWN, and PAEZ, Circuit Judges.
Plaintiff Sara Hamilton appeals the entry of summary judgment for
Defendant GlaxoSmithKline, LLC on all of her claims. Reviewing de novo, King
v. County of Los Angeles, 885 F.3d 548, 556 (9th Cir. 2018), we affirm.
1. The proposed medical examination was job-related and consistent with
FILED
FEB 10 2021
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 panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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business necessity and therefore did not violate the Americans with Disabilities
Act or the Montana Human Rights Act. Yin v. California, 95 F.3d 864, 867–68
(9th Cir. 1996). But in any case, the examination was not in fact mandatory, as
Plaintiff suffered no adverse employment action due to her refusal to participate.
Accordingly, the district court did not err by granting summary judgment in favor
of Defendant on Plaintiff’s claims that she was subjected to an unlawful medical
examination.
2. Plaintiff’s requested accommodations—a new manager or an outside
mediator—were not "reasonable" given the factual context of her position within
the company. US Airways, Inc. v. Barnett, 535 U.S. 391, 401 (2002). Defendant
communicated extensively with Plaintiff and offered her a practical alternative:
internal counseling and mediation. Humphrey v. Mem’l Hosps. Ass’n, 239 F.3d
1128, 1138–39 (9th Cir. 2001). Other accommodations likely would have been
futile; Plaintiff conceded that she would not have entertained alternative
accommodations because what she wanted was a new manager. Defendant’s
efforts reflect a good faith engagement in the interactive process. See Zivkovic v.
S. Cal. Edison Co., 302 F.3d 1080, 1089 (9th Cir. 2002) ("The interactive process
requires: (1) direct communication between the employer and employee to explore
in good faith the possible accommodations; (2) consideration of the employee’s
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request; and (3) offering an accommodation that is reasonable and effective.").
3. The district court did not err by entering summary judgment in
Defendant’s favor on Plaintiff’s discriminatory termination claims. Plaintiff was
not a "qualified individual able to perform the essential functions of the job" given
her violation of Defendant’s attendance policy. Samper v. Providence St. Vincent
Med. Ctr., 675 F.3d 1233, 1237–38 (9th Cir. 2012). And Defendant had not failed
to accommodate Plaintiff because it offered her a reasonable accommodation under
the circumstances: internal mediation. Humphrey, 239 F.3d at 1139.
4. There is no "specific and substantial" evidence of pretext to support
Plaintiff’s retaliation claims. Bergene v. Salt River Project Agric. Improvement &
Power Dist., 272 F.3d 1136, 1142 (9th Cir. 2001). The record evidence fails to
show that "a discriminatory reason more likely motivated [Defendant] or . . . that
[Defendant’s] proffered explanation is unworthy of credence." Villiarimo v. Aloha
Island Air, Inc., 281 F.3d 1054, 1062 (9th Cir. 2002) (internal quotation marks
omitted). Therefore, the district court did not err by entering judgment on
Plaintiff’s claim that, after she filed her claims with the Montana Human Rights
Bureau, Defendant retaliated by terminating her employment for violation of the
attendance policy.
AFFIRMED.
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