Ross Mickealson v. Cummins, Inc.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROSS MICKEALSON,
Plaintiff-Appellant,
v.
CUMMINS, INC.,
Defendant-Appellee.
No. 18-35827
D.C. No. 1:16-cv-00075-SPW
MEMORANDUM*
Appeal from the United States District Court
for the District of Montana
Susan P. Watters, District Judge, Presiding
Argued and Submitted October 24, 2019
Portland, Oregon
Before: FARRIS, BEA, and CHRISTEN, Circuit Judges.
Appellant Ross Mickealson appeals the district court’s grant of summary
judgment in favor of Cummins, Inc., his former employer, on his wrongful
termination, disability discrimination, and failure to accommodate claims under the
Americans with Disabilities Act (“ADA”), Montana’s Human Rights Act
(“MHRA”), and Montana’s Wrongful Discharge from Employment Act (“WDEA”).
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
NOV 14 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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We have jurisdiction under 28 U.S.C. § 1291. Reviewing the district court’s grant
of summary judgment de novo and viewing the facts in the light most favorable to
Mickealson as the nonmoving party, we AFFIRM.
1. Montana’s WDEA provides that a discharge is “wrongful” if it “was
not for good cause and the employee had completed the employer’s probationary
period of employment.” Mont. Code Ann. § 39-2-904. An employer has “good
cause” if it has a “legitimate business reason” for discharging the employee. Id.
§ 39-2-903(5). A “legitimate business reason” is one that is not “false, whimsical,
arbitrary or capricious” and has “some logical relationship to the needs of the
business.” Buck v. Billings Mont. Chevrolet, Inc., 811 P.2d 537, 540 (Mont. 1991).
An employer’s reason for discharge is not “good cause” if it “is a pretext and not the
honest reason for the discharge.” Arnold v. Yellowstone Mtn. Club, LLC, 100 P.3d
137, 141 (Mont. 2004) (quoting Mysse v. Martens, 926 P.2d 765, 770 (Mont. 1996)).
Mickealson’s failure to communicate with his supervisor as instructed
qualifies as insubordination that provided Cummins with a “legitimate business
reason” to terminate his employment. There is no triable issue of fact as to whether
Mickealson was insubordinate or whether Cummins’s decision to label
Mickealson’s behavior as insubordinate was arbitrary and capricious or unrelated to
the needs of Cummins’s business. Mickealson presented no evidence that Cummins
applied its employment policy unequally, arbitrarily or capriciously. See Johnson v.

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Costco Wholesale, 152 P.3d 727, 734 (Mont. 2007). Nor has Mickealson presented
evidence that creates an issue of fact as to whether Cummins’s stated reason for
terminating Mickealson was a pretext for discriminating against Mickealson because
he had a disability, requested accommodations, had an upcoming surgery, or filed a
complaint against his supervisor.1
Because Cummins had good cause for terminating Mickealson’s employment,
the district court properly granted Cummins’s motion for summary judgment on
Mickealson’s Montana WDEA wrongful termination claim. See, e.g., Mysse, 926
P.2d at 771 (finding employer had good cause to terminate employee because she
refused to perform her job duties).
2. The ADA2 prohibits an employer from discriminating “against a
qualified individual on the basis of disability.” 42 U.S.C. § 12112(a). Thus, to
establish a prima facie case for disability discrimination under the ADA, a plaintiff
must show that: (1) he is disabled, (2) he is qualified to perform the essential
functions of his position, and (3) he suffered an adverse employment action because
1 While Mickealson has disputed the truth of many factual assertions made by his
supervisors and the internal complaint investigator, such disputes do not render
summary judgment inappropriate where there are facts not in dispute that provide
“good cause” for terminating Mickealson’s employment. See Becker v. Rosebud
Operating Servs., 191 P.3d 435 (Mont. 2008).
2 Because “the MHRA is closely modeled after federal anti-discrimination statutes
such as the ADA,” Pannoni v. Bd. of Trs., 90 P.3d 438, 444 (Mont. 2004), we
analyze Mickealson’s ADA and MHRA claims together.

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of his disability. See Hutton v. Elf Atochem N. Am., Inc., 273 F.3d 884, 891 (9th Cir.
2001); Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1246 (9th Cir. 1999); see also
McDonald v. Dep’t of Envtl. Quality, 214 P.3d 749, 758 (Mont. 2009). To withstand
a motion for summary judgment on an ADA claim, a plaintiff must either provide
sufficient direct evidence of an employer’s discriminatory intent, or give rise to an
inference of discrimination by satisfying the burden-shifting test from McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). See Cordova v. State Farm Ins. Cos.,
124 F.3d 1145, 1148 (9th Cir. 1997).
Here, Cummins articulated a legitimate, nondiscriminatory reason
for Mickealson’s termination by presenting evidence that Mickealson was
terminated because he was insubordinate, not because of his disability. Because
Mickealson failed to present direct evidence or evidence that gives rise to an
inference that his disability was a cause for his termination to rebut this legitimate
justification, the district court properly granted summary judgment in favor of
Cummins on Mickealson’s disability discrimination claims.
3. The ADA requires employers to make “reasonable accommodations to
the known physical or mental limitations of an otherwise qualified individual with
a disability.” 42 U.S.C. § 12112(b)(5)(A). Because Mickealson cannot show that he
suffered an adverse employment action because of his disability, his reasonable
accommodation claim also fails.

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AFFIRMED.

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