The Honorable Gershwin A. Drain, United States District Judge for the Eastern… v. Victor Community Support Services, Inc.

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NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 15-15862
D.C. No. 2:11-cv-03182-TLN
MEMORANDUM
Appeal from the United States District Court
for the Eastern District of California
Troy L. Nunley, District Judge, Presiding
Argued and Submitted April 18, 2017
San Francisco, California
Before: RAWLINSON and SCHROEDER, Circuit Judges, and DRAIN,** District
Judge.
After a bench trial, the district court found that Mary Phillips (“Appellant”
 This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Gershwin A. Drain, United States District Judge for the
Eastern District of Michigan, sitting by designation.
MARY PHILLIPS,
Plaintiff - Appellant,
v.
VICTOR COMMUNITY SUPPORT
SERVICES, INC.,
Defendant - Appellee.
FILED
JUL 3 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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or “Ms. Phillips”) failed to show by a preponderance of the evidence that Victor
Community Support Services (“Appellee” or “VCSS”) discriminated against her
in violation of the Americans with Disabilities Act (“ADA”). Ms. Phillips appeals
the district court’s judgment. We have jurisdiction under 28 U.S.C. § 1291. We
affirm.
In examining the district court’s decision after a bench trial, we review the
district court’s findings of fact for clear error and its conclusions of law de novo.
Brazil Quality Stones, Inc. v. Chertoff, 531 F.3d 1063, 1067 (9th Cir. 2008).
Here, the Appellant concedes that the district court’s findings of facts are not
clearly erroneous.
1. The district court properly concluded that Ms. Phillips failed to meet her
burden and show that VCSS failed to reasonably accommodate Ms. Phillips due
to her disability. “Once an employer becomes aware of the need for
accommodation, that employer has a mandatory obligation under the ADA to
engage in an interactive process with the employee to identify and implement
appropriate reasonable accommodations.” Humphrey v. Mem’l Hosps. Ass’n, 239
F.3d 1128, 1137 (9th Cir. 2001) (internal citations and quotations omitted).
Although the ADA places a continuing duty to accommodate on the employer,
the interactive process requires “direct communication between the employer and

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employee to explore in good faith the possible accommodations.” U.S. EEOC v.
UPS Supply Chain Solutions, 620 F.3d 1103, 1110 (9th Cir. 2010). Here, the
record supports the district court’s findings with regard to the break-down in the
interactive process that resulted from the Appellant’s inadequate effort and lack
of communication. Therefore, the district court did not err in finding that VCSS
reasonably accommodated Ms. Phillips.
2. The district court properly concluded that Ms. Phillips failed to meet her
burden and show that her disability was a motiving factor in her termination.
“[T]he ADA outlaws adverse employment decisions motivated, even in part, by
animus based on a plaintiff’s disability or request for an accommodation—a
motivating factor standard.” Head v. Glacier Nw. Inc., 413 F.3d 1053, 1065 (9th
Cir. 2005) (abrogated on other grounds by Unit. Of Tex. Sw. Med. Ctr. v. Nassar,
133 S. Ct. 2517, 2533 (2013)) (emphasis added).
The district court’s findings properly documented how, at every juncture
where the Appellant received an adverse employment action, VCSS had a
legitimate basis for its actions. For example, prior to her demotion, Ms. Phillips
violated VCSS procedure on two occasions. Prior to her termination, Ms. Phillips
informed VCSS that she could not perform her scheduled duties because her
license had not been renewed.

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Additionally, when an issue of credibility arose during trial, the court
credited the testimony of VCSS’s supervisor and discounted Ms. Phillips’
testimony. We give due regard to the trial court’s opportunity to judge the
witnesses’ credibility. See FED. R. CIV. P. 52.
Therefore, the Appellant has failed to meet her burden and show by a
preponderance of the evidence that VCSS’s adverse employee decisions were
motivated by animus.
3. The district court properly concluded that Ms. Phillips failed to meet her
burden and demonstrate that VCSS retaliated against her for engaging in
protected activity. “To establish a prima facie case of retaliation under the ADA,
an employee must show that: (1) he or she engaged in a protected activity; (2)
suffered an adverse employment action; and (3) there was a causal link between
the two.” Pardi v. Kaiser Found. Hosps., 389 F.3d 840, 849 (9th Cir. 2004). In
this case, Ms. Phillips failed to establish a causal link between her protected
activity and the adverse employment actions she suffered. Ms. Phillips’
violations of VCSS procedure and failure to timely renew her license—facts that
Ms. Phillips omits from her argument—create intervening causes that disrupt
any inferences of a direct causal link. Therefore, Ms. Phillips failed to
sufficiently establish her retaliation claim.

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For the preceding reasons, the trial court properly entered judgment in favor
of the Defendant-Appellee.
AFFIRMED.

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