Valerie Hoppman v. Liberty Mutual Insurance Company

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
VALERIE HOPPMAN,
Plaintiff-Appellant,
v.
LIBERTY MUTUAL INSURANCE
COMPANY,
Defendant-Appellee.
No. 18-35368
D.C. No. 3:17-cv-00402-BR
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
Argued and Submitted June 3, 2019
Portland, Oregon
Before: MURGUIA and HURWITZ, Circuit Judges, and ZIPPS,** District Judge.
Valerie Hoppman sued her employer, Liberty Mutual Insurance Company
(LMIC), for allegedly failing to accommodate her disability under the Americans
with Disabilities Act (ADA), 42 U.S.C. § 12112(a), and Oregon Public
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Jennifer G. Zipps, United States District Judge for the
District of Arizona, sitting by designation.
FILED
AUG 12 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Accommodation Act, Or. Rev. Stat. § 659A.112. The district court granted summary
judgment for LMIC, concluding Hoppman was not disabled because she was able to
work at least 40 hours a week, although unable to work overtime. We affirm the
summary judgment, but on an alternative ground. See Gulf USA Corp. v. Fed. Ins.
Co., 259 F.3d 1049, 1060 n.13 (9th Cir. 2001) (“[W]e may affirm summary
judgment on an alternative ground to that given by the district court if the record
fairly supports the alternative ground.”). Assuming that Hoppman was disabled,
LMIC was entitled to judgment because there is no dispute that Hoppman failed to
engage in a good faith interactive process with her employer.
1. To prevail on a failure-to-accommodate claim under the ADA, a plaintiff
must establish as a threshold matter that she has a disability, defined as “a physical
or mental impairment that substantially limits one or more major life activities[.]”
42 U.S.C. § 12102 (1)(A); Samper v. Providence St. Vincent Med. Ctr., 675 F.3d
1233, 1237 (9th Cir. 2012). The district court cited several circuit decisions to
support the conclusion that an employee is not substantially limited as a matter of
law if she is capable of working at least 40 hours a week. Congress amended the
ADA in 2008, however, to make it easier for plaintiffs to establish the existence of
a substantially limiting impairment—even for a plaintiff claiming a substantial
limitation on her ability to work. § 2 (a)(4)-(6) Pub. L. No. 110-325, 122 Stat. 3553;
Weaving v. City of Hillsboro, 763 F.3d 1106, 1112 (9th Cir. 2014). Now, “[t]he

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primary object of attention in cases brought under the ADA should be whether
covered entities have complied with their obligations and whether discrimination has
occurred,” rather than “whether an individual’s impairment substantially limits a
major life activity.” 29 C.F.R. § 1630.2 (j)(1)(iii). Determining whether an
impairment is substantially limiting “requires an individualized assessment.” Id. §
1630.2 (j)(1)(iv). The district court did not consider the effect of the 2008
amendments. We therefore decline to affirm the district court’s conclusion that
Hoppman was not disabled because she was able to work at least 40 hours a week.
2. We nonetheless affirm the district court’s grant of summary judgment on
the alternative basis, fully briefed below, that Hoppman failed to engage in a good
faith interactive process with LMIC. The ADA requires an employee to engage in
a good faith interactive process with her employer to identify appropriate
accommodations, in part because “the employee holds essential information for the
assessment of the type of reasonable accommodation which would be most
effective.” Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1113–15 (9th Cir. 2000) (en
banc), vacated on other grounds, 535 U.S. 391 (2002). The obligation to engage in
a good faith interactive process is ongoing and extends beyond an initial effort to
communicate. See Humphrey v. Mem’l Hosps. Ass’n, 239 F.3d 1128, 1138 (9th Cir.
2001).

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3. When Hoppman first requested an accommodation from LMIC, she had
already been granted short-term disability leave and was pursuing long-term
disability leave. While on leave, she sent monthly emails to her supervisor
confirming that her doctor had not yet cleared her to return to work. Hoppman did
not suggest during this period that if she were provided with an accommodation, she
would be able to return. And, after Hoppman’s request for long-term leave had been
denied, and her short-term disability leave had expired, Hoppman stopped
communicating with LMIC entirely—despite LMIC’s explicit request that she
“[p]lease notify us when you are able to return to work,” and despite a subsequent
note from her doctor clearing her. LMIC did not terminate Hoppman’s position until
the following year. We therefore conclude that there is no genuine issue of material
fact that Hoppman failed to engage in a good faith interactive process.
AFFIRMED.

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