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NOT FOR PUBLICATION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;
MICHAEL CIMINO, Chief Probation
Officer, Adult Probation Department,
Superior Court of Arizona in and for
Maricopa County, in his official capacity,
Defendants-Appellees.
No. 21-16548
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 15, 2024**
Before: FERNANDEZ, SILVERMAN, AND N.R. SMITH, Circuit Judges.
Nannette Hummel appeals from the district court’s judgment following a
bench trial addressing her Americans with Disabilities Act (ADA) reasonable
FILED
APR 15 2024
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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accommodation claim alleged against her former employer. We have jurisdiction
pursuant to 28 U.S.C. § 1291. We review the district court’s findings of fact for
clear error and conclusions of law de novo. Zivkovic v. S. Cal. Edison Co., 302
F.3d 1080, 1088 (9th Cir. 2002).
The district court did not abuse its discretion by denying Hummel’s
untimely requests for leave to amend to add damages claims and a new defendant.
Hummel did not establish good cause, in particular diligence, in seeking
amendment. See Johnson v Mammoth Recreations, Inc., 975 F.2d 604, 607-09 (9th
Cir. 1992) (setting forth the clear abuse of discretion standard of review and the
standard for amending after the scheduling order deadline).
Nor did the district court abuse its discretion by allowing defense counsel to
impeach Hummel with undisclosed documents. Consistent with Federal Rule of
Civil Procedure 26(a)(1)(A)(ii), the district court limited the use of the documents
to impeachment. See Gribben v. United Parcel Serv., Inc., 528 F.3d 1166, 1171-72
(9th Cir. 2008) (setting forth the standard of review and explaining that
“impeachment evidence does not have to be revealed in pretrial disclosures”).
Contrary to Hummel’s argument, the lower summary judgment standards for
reasonable accommodation did not apply during the bench trial. Snapp v. United
Transp. Union, 889 F.3d 1088, 1102 (9th Cir. 2018). The district court was not
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required to accept the Equal Employment Opportunity Commission cause
determination as proof of reasonable accommodation at trial. Rather, Hummel had
to establish “the existence of a reasonable accommodation that would have enabled
[her] to perform the essential functions of an available job.” Id. (internal quotation
marks omitted).
The district court did not clearly err by finding that Hummel’s request for
extended or additional leave with an uncertain return date after she had been absent
for seven months was unreasonable. Her employer had reason to believe that she
would not have been physically capable of working as a probation officer by her
requested return date and that the absence would last indefinitely. See Dark v.
Curry Cnty., 451 F.3d 1078, 1090 (9th Cir. 2006) (holding that “recovery time of
unspecified duration may not be reasonable accommodation”). The ADA did not
require that Hummel’s employer “exempt [her] from performing essential
functions” or “reallocate essential functions to other employees.” Id. at 1089.1
In any event, reinstatement was not an available remedy in light of the
district court’s well-supported finding that Hummel’s former employer would fire
her for a lawful reason after her reinstatement. See McKennon v. Nashville Banner
1We do not consider the undue hardship defense, which was waived by
Appellee on appeal.
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Publ’g Co., 513 U.S. 352, 360-62 (1995) (holding that “after-acquired evidence of
the employee’s wrongdoing” generally precludes the remedy of reinstatement if the
employer “would have terminated, and will terminate” the plaintiff for a lawful
reason).
Hummel’s pending motion for a copy of a deposition (Dkt. Entry No. 28) is
DENIED as moot.
AFFIRMED.
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