                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       NOV 14 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

ROSS MICKEALSON,                                No.    18-35827

                Plaintiff-Appellant,            D.C. No. 1:16-cv-00075-SPW

 v.
                                                MEMORANDUM*
CUMMINS, INC.,

                Defendant-Appellee.

                   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.
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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