               FOR PUBLICATION

 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT


DANNY SNAPP,                             No. 15-35410
                Plaintiff-Appellant,
                                           D.C. No.
                v.                      3:10-cv-05577-
                                             RBL
UNITED TRANSPORTATION UNION,
                     Defendant,
                                          OPINION
               and

BURLINGTON NORTHERN SANTA FE
RAILWAY COMPANY,
             Defendant-Appellee.



     Appeal from the United States District Court
       for the Western District of Washington
     Ronald B. Leighton, District Judge, Presiding

      Argued and Submitted November 8, 2017
                 Portland, Oregon

                 Filed May 11, 2018
2                   SNAPP V. BNSF RAILWAY

Before: Ferdinand F. Fernandez, William A. Fletcher, and
          Michael J. Melloy, * Circuit Judges.

                    Opinion by Judge Melloy


                           SUMMARY **


                  Employment Discrimination

    The panel affirmed the district court’s judgment, after a
jury trial, in favor of Burlington Northern Santa Fe Railway
Co., the defendant in an action alleging a failure to
accommodate under the Americans with Disabilities Act.

    The panel held that the ADA treats the failure to provide
a reasonable accommodation for a disability as an act of
discrimination if the employee is a “qualified individual,”
the employer receives adequate notice, and a reasonable
accommodation is available that would not place an undue
hardship on the operation of the employer’s business.
Notifying an employer of a need for an accommodation
triggers a duty to engage in an “interactive process.” If an
employer receives notice and fails to engage in the
interactive process, the employer will face liability if a
reasonable accommodation would have been possible. If an
employer fails to engage in good faith in the interactive
process, the burden at the summary-judgment phase shifts to


    *
      The Honorable Michael J. Melloy, United States Circuit Judge for
the U.S. Court of Appeals for the Eighth Circuit, sitting by designation.
    **
       This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
                 SNAPP V. BNSF RAILWAY                       3

the employer to prove the unavailability of a reasonable
accommodation.

    In an earlier appeal, a prior panel reversed the district
court’s summary judgment in favor of BNSF and stated:
“there is a genuine dispute over whether BNSF engaged in
good faith in a required interactive process, and failure to do
so would constitute discrimination under the ADA.” The
panel concluded that this statement was not law of the case,
but rather a less-than-complete statement of law.

    The panel held that at trial, unlike at the summary
judgment phase, the burden of proof does not shift, and the
plaintiff bears the burden of proving that the employer could
have made a reasonable accommodation that would have
enabled the plaintiff to perform the essential functions of the
job. The panel rejected the argument that the plaintiff has
only a burden of production, rather than a burden of proof.
Accordingly, the district court’s jury instructions were
correct.

    Affirming the district court’s denial of the plaintiff’s
motion for judgment as a matter of law, and agreeing with
the Tenth Circuit, the panel held that BNSF was not bound
by admissions made in a deposition of a corporate designee
for BNSF pursuant to Fed. R. Civ. P. 30(b)(6), such that the
jury should not have been allowed to consider other
evidence.
4                SNAPP V. BNSF RAILWAY

                        COUNSEL

Stephen L. Brischetto (argued), Law Offices of Stephen L.
Brischetto, Portland, Oregon, for Plaintiffs-Appellants.

Britenae M. Pierce (argued), Shannon J. Lawless and James
M. Shaker, Ryan Swanson & Cleveland, PLLC, Seattle,
Washington, for Defendant-Appellee.


                         OPINION

MELLOY, Circuit Judge:

     Plaintiff Danny Snapp brought this action against the
United Transportation Union (the “Union”) and his former
employer, Burlington Northern Santa Fe Railway Company
(“BNSF”), alleging a failure to accommodate under the
Americans with Disabilities Act (“ADA”). A jury returned
a defense verdict, and Snapp appeals. At trial, the parties
disputed whether Snapp had requested an accommodation.
In addition, the parties disagreed as to whether and how the
jury instructions should address the “interactive process,”
i.e., the statutorily required collaborative effort for
identifying an employee’s abilities and an employer’s
possibly reasonable accommodations. Snapp argues the
district court improperly rejected a proposed instruction that
would have imposed liability on BNSF merely for failing to
engage in the interactive process, regardless of the
availability of a reasonable accommodation. Snapp also
argues the district court improperly rejected a proposed jury
instruction that would have described his overall burden of
proof as a mere burden of production rather than as an
ultimate burden of persuasion. Finally, Snapp argues the
district court erred by refusing to treat statements by BNSF’s
                 SNAPP V. BNSF RAILWAY                    5

Federal Rule of Civil Procedure 30(b)(6) corporate
representative as binding admissions. We find no error and
affirm the judgment of the district court.

                      I. Background

    Snapp worked for BNSF from 1971 through 1999. He
rose through the ranks, becoming a Division Trainmaster in
1986. Due to tiredness and low energy, he went to a doctor
in 1994. He was diagnosed with sleep apnea and had
surgeries in 1996 and 1998 in unsuccessful attempts to
correct his condition.

    In 1999, BNSF received a report from Snapp’s
physician. Snapp’s supervisor told Snapp he did not believe
Snapp could work in a safe manner. In 1999, Snapp took a
“fitness for duty” evaluation, was determined to be totally
disabled, and went on short-term disability leave. He
applied for long-term disability benefits through CIGNA,
the third-party administrator for BNSF’s disability plan. In
February 2000, BNSF’s medical director told Snapp that
CIGNA had approved Snapp’s claim for disability benefits
and that, should CIGNA later find him ineligible, he should
contact BNSF’s medical director to plan a “return to work.”
Snapp began a period of long-term disability leave and
received payments from CIGNA.

    In 2005, CIGNA requested a sleep study to verify
Snapp’s continuing disability. When Snapp arrived at a
clinic for the study, the clinic asked him to sign a release
accepting personal financial responsibility for the test. He
refused and did not complete the study. In November 2005,
CIGNA terminated Snapp’s disability benefits citing an
absence of evidence of continuing disability.
6                 SNAPP V. BNSF RAILWAY

    At that time, Snapp did not request an accommodation or
apply to return to work. Rather, he appealed CIGNA’s
denial of benefits, filed complaints with governmental
entities, and copied BNSF on his appeal letter. CIGNA
notified BNSF in November 2007 that it had denied Snapp’s
appeal and Snapp was no longer eligible for long-term
disability.

    Also in November 2007, Snapp wrote to BNSF
demanding reinstatement of his disability payments,
demanding reimbursement for overpayment of life-
insurance premiums, and threatening to sue BNSF. He
called to follow up on the letter. He did not ask to return to
employment in either the letter or the call.

     On January 2, 2008, BNSF representative Lori Emery
sent Snapp a letter telling him that, in accordance with the
BNSF Long-Term Disability Plan, he had sixty days to
secure a position with BNSF or he would be dismissed. The
letter stated, “BNSF is under no obligation to provide you
with a salaried position if you are released to return to work
by your physician.” Emery invited Snapp to contact her
directly and copied Dane Freshour, BNSF’s Regional
Director of Human Resources.

    On January 6, 2008, Snapp wrote back a letter addressing
primarily the denial of disability benefits and attaching
several documents. Snapp’s letter stated, “Your letter does
nothing to address my letter dated November 10, 2007! . . .
I was in hopes that BNSF Railway would assist me in my
endeavor with CIGNA . . . . For several years I have
attempted to get BNSF Railway to correct the ongoing
malicious administration of the Disability contract(s) . . . .”
Snapp also stated he would “more than welcome your offer
to return to BNSF employment without discrimination of my
situation . . . .” He attached to his letter several pages related
                   SNAPP V. BNSF RAILWAY                         7

to the CIGNA policy regarding CIGNA’s payment for
rehabilitation and reasonable accommodation costs. He also
attached a doctor’s note dated April 2007 in which the doctor
stated, “I do not feel . . . it is safe for you to return to work.”
In the alternative, Snapp asked for “[a] continued and on
going Long Term Disability leave of Absence until this is
presented in a court of law regarding CIGNA discontinued
benefits through malicious administration and breach of the
BNSF . . . Welfare Plan.”

    Emery wrote to Snapp on January 10. She confirmed
receipt of his November 2007 and January 2008 letters and
reported having resolved the life-insurance-premium
overpayment issue, stating a refund check was on its way.
Regarding disability benefits, she reiterated that CIGNA was
solely responsible for plan administration and he should deal
with CIGNA directly. In doing so, she referenced a 2006
communication from BNSF to Snapp’s attorney conveying
the same information. Emery reported that BNSF was
standing by the sixty-day window to secure employment,
cited a website for accessing current openings, and identified
Freshour as the human resources representative for Snapp’s
geographic region.

    Snapp neither visited the website nor contacted
Freshour. Before the end of the sixty-day period, however,
Snapp contacted the Union to ask about his seniority for a
yardmaster position. The Union told him he lacked the
requisite seniority. Notwithstanding this information, he
sent a letter dated February 28, 2008, to a BNSF facility in
Vancouver, Washington, seeking to displace a senior
yardmaster for a position and asking for an immediate
ninety-day medical leave beginning March 2 “to finalize
medical testing with the slight possibility of surgery for
correction of my long and existing condition.” Snapp
8                SNAPP V. BNSF RAILWAY

attached to his February 28 letter a note from a Veterans
Affairs neurologist who stated:

       Thank you for your recent correspondence
       and request for clarification of my
       recommendations from January 14, 2008. As
       I stated previously, light-duty work can be
       considered after treatment is further
       optimized (oral appliance therapy) but the
       following restrictions would need to apply:
       daytime work only (no shift work);
       restriction to 8 hours of duty at the maximum
       (no mandated overtime)[;] and no working
       with heavy equipment. An office job that
       didn’t involve any activity during which time
       if you [fell] asleep you could cause injury to
       yourself or other[s] is what I would
       recommend.

(Emphasis added).

    BNSF checked with the Union regarding Snapp’s
seniority and discovered he lacked the requisite seniority.
Because the sixty-day window had expired, BNSF
terminated his employment. Snapp challenged the Union’s
determination, and the Union explained he had not been a
member since 1982. Snapp continued to communicate with
BNSF through at least Spring 2009, seeking to exercise
seniority rights for a brakeman position. BNSF directed him
to the company website to apply for open positions. Snapp
then pursued a claim against BNSF through the Public Law
Board concerning his attempted exercise of seniority rights.
The Board ruled in favor of BNSF. Snapp did not apply for
any positions with BNSF other than the Vancouver
                   SNAPP V. BNSF RAILWAY                           9

yardmaster job in 2008 and the brakemaster job in 2009 (his
post-termination attempt).

    Snapp sued BNSF in August 2010 alleging a failure to
provide a reasonable accommodation. BNSF moved for and
was granted summary judgment. The Ninth Circuit
reversed, finding a genuine dispute of material fact as to
whether Snapp requested an accommodation so as to trigger
BNSF’s duty to engage in the interactive process. Snapp v.
United Transp. Union, 547 F. App’x 824, 826 (9th Cir.
2013) (unpublished memorandum disposition). On remand,
BNSF and Snapp each moved for summary judgment. The
district court denied the motions. As relevant to the present
appeal, Snapp argued that, in a Federal Rule of Civil
Procedure Rule 30(b)(6) corporate-designee deposition,
Freshour admitted Snapp had requested an accommodation
and also admitted BNSF failed to engage in the interactive
process in response to the request.

    At trial, Snapp repeatedly addressed the issue of BNSF’s
duty to engage in the interactive process. Snapp requested
jury instructions that the district court rejected. In particular,
Snapp sought an instruction that would have relieved him
entirely of showing the availability of a reasonable
accommodation. He sought to impose liability on BNSF
simply for failing to engage in the interactive process unless
BNSF could prove an affirmative defense, which he argued
BNSF had waived. 1 In doing so, Snapp characterized the
    1
      With his proposed instruction, which referenced “an affirmative
defense,” Snapp submitted a note to the court, stating:

            Defendant has raised no affirmative defense that
        no reasonable accommodation was possible, that
        reasonable accommodation would pose an undue
        hardship or that plaintiff’s employment posed a direct
10                SNAPP V. BNSF RAILWAY

unavailability of a reasonable accommodation as an
affirmative defense. Further, and regardless of BNSF’s
participation in an interactive process, Snapp sought an
instruction that would have described Snapp’s burden of
proof as to the availability of a reasonable accommodation
in terms equivalent to a slight burden of production. The
instructions as actually given to the jury placed the burden
of proof on Snapp as to all issues other than the statutory
defense of “undue hardship,” which the instructions placed
on BNSF. The district court did not give the jury an
instruction regarding the duty to engage in the interactive
process. The instructions the district court gave were based
on the Ninth Circuit Model Instructions.

    Snapp moved at the end of trial for judgment as a matter
of law, reasserting the arguments from his unsuccessful
summary judgment motion. The district court denied the
motion, and the jury returned a verdict for BNSF.

                           II. Analysis

    Snapp alleges the district court erred in formulating the
jury instructions and in denying the motion for judgment as
a matter of law. Snapp also seeks review of the denial of his
motion for summary judgment. Post-trial, however, a denial
of summary judgment generally is not separately reviewable.
See Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236,
1243 (9th Cir. 2014). In any event, we address issues raised
in that motion to the extent Snapp reasserted his arguments
in his later motion for judgment as a matter of law. See id.




       threat of harm. Plaintiff objects to trying any of these
       untimely affirmative defenses at this late date.
                  SNAPP V. BNSF RAILWAY                      11

    The parties agree de novo review applies to the denial of
the motion for judgment as a matter of law. The parties
disagree as to the standard of review we are to apply to the
alleged instructional error. “A district court’s formulation of
the jury instructions is reviewed for ‘abuse of discretion.’ If,
however, ‘the instructions are challenged as a misstatement
of the law, they are then reviewed de novo.’” Duran v. City
of Maywood, 221 F.3d 1127, 1130 (9th Cir. 2000) (per
curiam) (quoting Gilbrook v. City of Westminster, 177 F.3d
839, 860 (9th Cir. 1999) (internal citation omitted)). In this
instance, we conclude de novo review applies because an
improper allocation of the burden of proof or an improper
articulation of the elements of a cause of action necessarily
would be errors at law.

           A. ADA Interactive Process, Generally

    The ADA treats the failure to provide a reasonable
accommodation as an act of discrimination if the employee
is a “qualified individual,” the employer receives adequate
notice, and a reasonable accommodation is available that
would not place an undue hardship on the operation of the
employer’s business. 42 U.S.C. § 12112(b)(5)(A) (“[T]he
term ‘discriminate against a qualified individual on the basis
of    disability’    includes—not        making     reasonable
accommodations to the known physical or mental limitations
of an otherwise qualified individual with a disability who is
an applicant or employee, unless such covered entity can
demonstrate that the accommodation would impose an
undue hardship on the operation of the business of such
covered entity[.]”). The statute itself places on the employer
the burden to demonstrate an undue hardship. Id.

    The Ninth Circuit has held that notifying an employer of
a need for an accommodation triggers a duty to engage in an
“interactive process” through which the employer and
12               SNAPP V. BNSF RAILWAY

employee can come to understand the employee’s abilities
and limitations, the employer’s needs for various positions,
and a possible middle ground for accommodating the
employee. See Barnett v. U.S. Air, Inc., 228 F.3d 1105,
1111–16 (9th Cir. 2000) (en banc), vacated on other grounds
sub nom., US Airways, Inc. v. Barnett, 535 U.S. 391, 406
(2002). In Barnett, the Ninth Circuit held that if an employer
receives notice and fails to engage in the interactive process
in good faith, the employer will face liability “if a
reasonable accommodation would have been possible.”
Barnett, 228 F.3d at 1116 (emphasis added). In other words,
there exists no stand-alone claim for failing to engage in the
interactive process. Rather, discrimination results from
denying an available and reasonable accommodation.

     Recognizing the importance of the interactive process,
the Ninth Circuit also held that if an employer fails to engage
in good faith in the interactive process, the burden at the
summary-judgment phase shifts to the employer to prove the
unavailability of a reasonable accommodation. See Morton
v. United Parcel Serv., Inc., 272 F.3d 1249, 1256 (9th Cir.
2001), overruled on other grounds, Bates v. United Parcel
Serv., Inc., 511 F.3d 974, 995 (9th Cir. 2007) (en banc);
Barnett, 228 F.3d at 1116 (“We hold that employers, who
fail to engage in the interactive process in good faith, face
liability for the remedies imposed by the statute if a
reasonable accommodation would have been possible. We
further hold that an employer cannot prevail at the summary
judgment stage if there is a genuine dispute as to whether the
employer engaged in good faith in the interactive process.”).
The rationale for shifting this burden arises from EEOC
regulations and the ADA’s legislative history that
characterize the interactive process as at the heart of the
accommodation process. See Barnett, 228 F.3d at 1110–16.
                 SNAPP V. BNSF RAILWAY                      13

    Barnett and Morton were summary-judgment cases. No
Ninth Circuit case has actually held that the shifted burden
as to the availability of a reasonable accommodation carries
over into trial and must be expressed in jury instructions. In
Morton, however, the court used expansive language that
Snapp relies upon to argue that this burden shifting should
apply at trial. See, 272 F.3d at 1256 (“The question whether
this failure should be excused because there would in any
event have been no reasonable accommodation available is
one as to which the employer, not the employee, should bear
the burden of persuasion throughout the litigation.”
(emphasis added)). The main question in the present appeal
turns on whether the burden shifting announced in Barnett
and Morton applies also at trial or should be cabined to the
summary-judgment context.          Snapp also presents an
argument concerning the “law of the case” based on the
memorandum disposition in the first appeal, a more general
challenge to the jury instructions, and an argument
concerning testimony from a corporate-designee deponent.
We address these arguments below.

         B. Jury Instructions—Interactive Process

                     i. Law of the Case

    Snapp requested an instruction that would have
provided, “If plaintiff proves defendant failed to initiate the
interactive process or to participate in good faith in the
interactive process, your verdict should be for plaintiff
[unless defendant proves an affirmative defense.]”
Plaintiff’s Proposed Inst. No. 27. Snapp then characterized
“reasonable accommodation,” “undue hardship,” and “direct
threat of harm” as affirmative defenses and argued BNSF
waived all of these defenses. Through this request, including
his labeling of “reasonable accommodation” as an
affirmative defense that BNSF allegedly had waived, Snapp
14               SNAPP V. BNSF RAILWAY

sought in the alternative (1) direct liability on BNSF for
failing to engage in the interactive process, and (2) an
instruction that would have applied burden shifting as a
remedy for BNSF’s alleged failure to engage (i.e., would
have imposed on BNSF a burden to prove the unavailability
of a reasonable accommodation).

     Snapp argues that his exact proposed instruction was
proper because, in the memorandum disposition from the
first appeal in this case, the Ninth Circuit stated,
“Consequently, there is a genuine dispute over whether
BNSF engaged in good faith in a required interactive
process, and failure to do so would constitute discrimination
under the ADA.” Snapp, 547 F. App’x at 826. According
to Snapp, this statement constitutes “the law of the case”
such that the district court was bound to use his proposed
instruction.

    “[U]nder [the] ‘law of the case’ doctrine, one panel of an
appellate court will not as a general rule reconsider questions
which another panel has decided on a prior appeal in the
same case.” Thomas v. Bible, 983 F.2d 152, 154 (9th Cir.
1993) (quoting Merritt v. Mackey, 932 F.2d 1317, 1320 (9th
Cir. 1991)). But, “[f]or the doctrine to apply, the issue in
question must have been ‘decided either expressly or by
necessary implication in [the] previous disposition.’” Id.
(quoting Milgard Tempering, Inc. v. Selas Corp. of Am.,
902 F.2d 703, 715 (9th Cir. 1990)). Here, we find no
indication that the prior panel intended the quoted statement
to serve as a full statement of the law or that the quoted
statement was necessary for resolution of the appeal. That
panel was reviewing a grant of summary judgment and did
not purport to articulate instructions for trial. Moreover, as
explained below, a denial of summary judgment is
appropriate where there has been a failure to engage in the
                  SNAPP V. BNSF RAILWAY                      15

interactive process. See Morton, 272 F.3d at 1256; Barnett,
228 F.3d at 1116. The prior panel’s statement, therefore, is
not the law of the case. Rather it is merely a less-than-
complete statement of law commensurate in scope with the
matter actually before that court, namely, a motion for
summary judgment that did not actually present the
opportunity to expand upon Morton and Barnett in the
context of a trial. We reject Snapp’s attempt to invoke the
law of the case doctrine based upon this short, conclusory
statement from the memorandum disposition.

    A party’s failure to submit a proper articulation of the
law in a proposed jury instruction, however, does not relieve
the trial court of the duty to properly set forth the law in the
actual instructions. See Merrick v. Paul Revere Life Ins.,
500 F.3d 1007, 1017 (9th Cir. 2007). And, the use of model
instructions does not preclude reversal. See Hunter v.
County of Sacramento, 652 F.3d 1225, 1232 (9th Cir. 2011)
(“We have also recognized that a district court’s ‘use of a
model jury instruction does not preclude a finding of error.’”
(quoting Dang v. Cross, 422 F.3d 800, 805 (9th Cir. 2005))).
Moreover, other contested instructions in this case involved
disputes as to the proper articulation of the burden of proof.
As such, notwithstanding our rejection of Snapp’s “law of
the case” challenge, it remains necessary to address the
instructions.

        ii. Barnett and Morton Holdings and Dicta

    In Barnett, on appeal from a grant of summary judgment,
the Ninth Circuit recognized the employer’s duty to engage
in the interactive process. The court first reviewed the ADA,
legislative history, and EEOC guidelines for conducting the
interactive process. Recognizing the inherent informational
imbalance between employers and employees and the
16              SNAPP V. BNSF RAILWAY

employer’s superior knowledge regarding              possible
alternative positions, the court concluded:

       To put the entire burden for finding a
       reasonable accommodation on the disabled
       employee or, effectively, to exempt the
       employer from the process of identifying
       reasonable accommodations, conflicts with
       the goals of the ADA. The interactive
       process is at the heart of the ADA’s process
       and essential to accomplishing its goals. It is
       the primary vehicle for identifying and
       achieving effective adjustments which allow
       disabled employees to continue working
       without placing an “undue burden” on
       employers. Employees do not have at their
       disposal     the    extensive     information
       concerning possible alternative positions or
       possible accommodations which employers
       have. Putting the entire burden on the
       employee to identify a reasonable
       accommodation risks shutting out many
       workers simply because they do not have the
       superior knowledge of the workplace that the
       employer has.

Barnett, 228 F.3d at 1113. The court then “turn[ed] to the
consequences for employers who fail to engage in the
interactive process in good faith.” Id. at 1115. The court
noted that the employee typically will have proposed some
accommodation, but that “[t]he range of possible reasonable
accommodations, for purposes of establishing liability for
failure to accommodate, can extend beyond those proposed.”
Id.       Based upon this multiplicity of possible
accommodations and the need to deter uncooperative
                 SNAPP V. BNSF RAILWAY                      17

employers, the court concluded “an employer cannot prevail
at the summary judgment stage if there is a genuine dispute
as to whether the employer engaged in good faith in the
interactive process.” Id. at 1116. Nevertheless, the court
unequivocally stated that liability does not arise in the
absence of an available reasonable accommodation. Id.
(“We hold that employers, who fail to engage in the
interactive process in good faith, face liability for the
remedies imposed by the statute if a reasonable
accommodation would have been possible.”); see also id. at
1115 (“Most circuits have held that liability ensues for
failure to engage in the interactive process when a
reasonable accommodation would otherwise have been
possible.”).

     The court made no comments purporting to address
burdens of proof at trial. Nor did the court suggest it was
contemplating the complexities that would arise from such
an instructional issue at trial. In fact, these complexities
militate strongly against taking Barnett out of context and
extending its holding to trial. As a practical matter, the jury
would need instructions asking if the employer participated
in the interactive process in good faith. Then, the jury would
need alternative instructions telling them how to allocate the
burden of proof if they found an employer had failed to
engage in good faith, and as a contingency, how to allocate
the burden if the employer did engage in the interactive
process. All the while, the court would need to ensure the
jury did not impose liability on the employer simply for
failing to engage—the risk of prejudicial juror confusion
would be high. District judges dealing with motions for
summary judgment, with the benefit of briefing, are well-
equipped to cut through such thickets. It is less clear such
complexity is appropriate for jury instructions. In fact,
courts often reject attempts to charge jurors with
18               SNAPP V. BNSF RAILWAY

complicated burden-shifting frameworks, asking jurors,
instead, to weigh in on the ultimate question of
discrimination. Cf. Sanghvi v. City of Claremont, 328 F.3d
532, 539 (9th Cir. 2003) (critiquing in another context “the
use of legalistic language and the complexities of burden
shifting” and concluding “the only question that should go
to the jury is the ultimate question of discrimination”).

    Moreover, if the burden were shifted at trial, and if the
employer failed to meet the burden, the net effect might be
liability without identification of an accommodation. This
outcome alone would seem to contradict Barnett. And it
would place the jury in the difficult situation of assessing
damages for a failure-to-accommodate claim with nothing
but speculation to guide the analysis of damages. See
Yonemoto v. McDonald, 114 F. Supp. 3d 1067, 1115–18 (D.
Haw. 2015) (refusing to extend burden shifting to trial and
identifying damages issue), aff’d sub nom., Yonemoto v.
Shulkin, Nos. 15-16769 & 16-16076, 2018 WL 896723 (9th
Cir. Feb. 15, 2018) (unpublished memorandum disposition).
The summary judgment context for Barnett, the absence of
discussion of trial issues, and the obvious complexities that
would arise all strongly suggest that the burden shifting
should be limited to summary judgment.

    Then, in Morton, applying and interpreting Barnett to
review a summary judgment, the court stated:

       It is the employer’s responsibility, through
       participation in the interactive process, to
       assist       in     identifying      possible
       accommodations. Here, UPS does not argue
       that it did engage in good faith in the
       interactive process. The question whether
       this failure should be excused because there
       would in any event have been no reasonable
                SNAPP V. BNSF RAILWAY                    19

       accommodation available is one as to which
       the employer, not the employee, should bear
       the burden of persuasion throughout the
       litigation.

272 F.3d at 1256 (first emphasis in original, citation and
footnote omitted). This language, seemingly purporting to
reach beyond summary judgment, was more expansive than
what was said in Barnett and was unnecessary for resolution
of the appeal in Morton. Regardless, in an accompanying
footnote, the court continued its discussion:

       Barnett can be read as holding that an
       employer who has not engaged in the
       interactive process is not entitled to summary
       judgment no matter what the evidence on
       summary judgment shows concerning the
       actual availability of a reasonable
       accommodation. It is odd, however, to delay
       until trial an issue that is fact dependent, if
       proof of the relevant facts—here, the facts
       pertinent to proving that a relevant
       accommodation was available—will be
       necessary at trial. We therefore understand
       Barnett as holding, instead, that the task of
       proving the negative—that no reasonable
       accommodation was available—rests with an
       offending employer throughout the litigation,
       and that, given the difficulty of proving such
       a negative, it is not likely that an employer
       will be able to establish on summary
       judgment the absence of a disputed fact as to
       this question.
20               SNAPP V. BNSF RAILWAY

Id. at 1256 n.7. In making these comments, however, the
court in Morton did not acknowledge or address the
complexities that might arise at trial.

    Most recently, in Yonemoto, a district court in our circuit
analyzed this issue in the context of a bench trial and
concluded the shifted burden does not carry over from
summary judgment to trial. See Yonemoto, 114 F. Supp. 3d
at 1115–18. In doing so, the court in Yonemoto identified
the expansive language from Morton as dicta and found that
a consensus of “virtually every other circuit” did not employ
such burden shifting. Id. at 1117. Moreover, Yonemoto
concluded the concerns that justified the summary judgment
rule in Barnett were lessened at trial. We agree.

     Yonemoto characterized the Morton court’s comments
about burdens at trial as dicta not only due to the limited
summary-judgment context in which they were made, but
also because they were “made casually . . . without any
discussion, let alone analysis, of the possible alternatives at
trial.” Yonemoto, 114 F. Supp. 3d at 1117. Given the
complexities and risk of prejudice, “it appear[ed] very
unlikely that the Morton panel intended, without a much
fuller analysis, to establish a burden-shifting rule at odds
with virtually every other circuit.” Id. (applying the Ninth
Circuit’s analysis for identifying dicta as set forth in United
States v. Johnson, 256 F.3d 895, 915–16 (9th Cir. 2001) (en
banc) (Kozinski, J. concurring)).

    In this regard, Yonemoto correctly noted that several
circuits strongly support the view that a failure to engage
does not require a shifted burden at trial. In fact, many
circuits do not relieve the plaintiff of the burden even at
summary judgment. See, e.g., Stern v. St. Anthony’s Health
Ctr., 788 F.3d 276, 293 (7th Cir. 2015) (“But regardless of
the state of the record, an employer’s failure ‘to engage in
                  SNAPP V. BNSF RAILWAY                      21

the required [interactive] process . . . need not be considered
if the employee fails to present evidence sufficient to reach
the jury on the question of whether she was able to perform
the essential functions of her job with an accommodation.’”
(alterations in original) (quoting Basden v. Prof’l Transp.,
Inc., 714 F.3d 1034, 1039 (7th Cir. 2013))); EEOC v. Ford
Motor Co., 782 F.3d 753, 766 (6th Cir. 2015) (noting that if
an employee fails to create a jury question as to a reasonable
accommodation, the employer will not be liable “[e]ven if
[the employer] did not put sufficient effort into the
‘interactive process’ of finding an accommodation”); Jacobs
v. N.C. Admin. Office of the Courts, 780 F.3d 562, 581 (4th
Cir. 2015) (“However, an employer will not be liable for
failure to engage in the interactive process if the employee
ultimately fails to demonstrate the existence of a reasonable
accommodation that would allow her to perform the
essential functions of the position.”); Jones v. Nationwide
Life Ins., 696 F.3d 78, 91 (1st Cir. 2012) (addressing an
employer’s alleged failure to engage in the interactive
process and concluding: “It was [the employee’s] burden ‘to
proffer accommodations that were reasonable under the
circumstances[.]’” (quoting Jones v. Walgreen Co., 679 F.3d
9, 19 n.6 (1st Cir. 2012))); Hennagir v. Utah Dep’t of Corr.,
587 F.3d 1255, 1265 (10th Cir. 2009) (“Even if [an
employer] fail[s] to fulfill its interactive obligations to help
secure a [reasonable accommodation], [the employee] will
not be entitled to recovery unless [s]he can also show that a
reasonable accommodation was possible . . . .” (alterations
in original) (quoting Smith v. Midland Brake, Inc., 180 F.3d
1154, 1174 (10th Cir. 1999) (en banc))); McBride v. BIC
Consumer Prods. Mfg. Co., 583 F.3d 92, 101 (2d Cir. 2009)
(“The employer’s failure to engage in such an interactive
process, however, does not relieve a plaintiff of her burden
of demonstrating, following discovery, that some
accommodation of her disability was possible.”). Further,
22               SNAPP V. BNSF RAILWAY

Snapp cites no cases in which a court has held such a burden
shifting should occur at trial.

    We believe the general consensus identified in Yonemoto
is consistent with Barnett and with the text of the ADA itself.
Barnett recognized that, as a practical matter, an employer’s
failure to engage in the interactive process limits the
employee’s access to information about what types of
accommodations might have been possible.                  This
informational imbalance, in part, drove the court in Barnett
to fashion the burden-shifting “consequence” for employers
who fail to engage. Id. at 1115. This remedial burden
shifting, however, is a departure from the generally
understood apportionment of burdens of proof to plaintiffs.
It also is a departure from the ADA itself which does not
place the burden of disproving a reasonable accommodation
on the employer, but rather, expressly places the burden on
the employer to prove only the affirmative defense of “undue
hardship.” 42 U.S.C. § 12112(b)(5)(A).               Moreover,
employees may possess informational advantages in certain
respects. Barnett, 228 F.3d at 1113 (“While employers have
superior knowledge regarding the range of possible positions
and can more easily perform analyses regarding the
‘essential functions’ of each, employees generally know
more about their own capabilities and limitations.”). As
such, even without judicially created consequences, the
negative effects of a failure to engage are not entirely one-
sided.

    Snapp’s argument in the present case, in practical terms,
asserts that Barnett’s burden shifting at summary judgment
is an insufficient consequence for an employer’s failure to
engage. Snapp’s argument is not unappealing. Still, the
informational imbalances that prevail pre-lawsuit (when the
interactive process should be taking place) are likely to be
                     SNAPP V. BNSF RAILWAY                            23

greatly diminished after full discovery and after the
opportunity to present evidence for resolution of factual
questions. See Yonemoto, 114 F. Supp. 3d at 1116 (“Further,
the plaintiff is in the best position to know his limitations,
and by trial the plaintiff has had the benefit of full discovery
such that he should be able to identify a specific reasonable
accommodation he was denied.”). We therefore conclude it
is neither appropriate nor necessary to extend the Barnett
and Morton burden-shifting framework to trial. The
“consequence” of the denial of summary judgment is not a
meaningless gesture, and when weighed against the
confusion and complexity likely to arise at trial, burden
shifting is best confined to summary judgment. 2


     2
       We also note that Snapp only indirectly requested a burden-shifting
instruction based on Barnett; he actually requested an imposition of
liability as the direct consequence for BNSF’s alleged failure to engage
and argued “reasonable accommodation” was an affirmative defense that
BNSF had waived. The statute itself is clear, however, that the
employer’s affirmative defense of “undue hardship” is a concept separate
and distinct from the question of whether an otherwise reasonable
accommodation exists. See 42 U.S.C. § 12112(b)(5)(A) (requiring
reasonable accommodation “unless such covered entity can demonstrate
that the accommodation would impose an undue hardship on the
operation of the business of such covered entity”). As such, Snapp did
not propose instructions that would have addressed the complexities
identified in Yonemoto. Even on appeal, Snapp fails to address
completely how a jury actually should be instructed if the jury also must
decide whether an employer failed to engage. In the alternative, Snapp
appears to argue that the district court, at a minimum, should have used
an instruction proffered by BNSF, or some unidentified instruction, that
would have notified the jury of the employer’s duty to engage in the
interactive process. The instruction BNSF proffered as to this point
stated:

             When the employee requests a reasonable
         accommodation, the employer has an obligation to
24                  SNAPP V. BNSF RAILWAY

     C. Burden of Production or Burden of Persuasion

    A separate and more straightforward instructional issue
on appeal relates to the district court’s general
characterization of the burden of proof. Snapp’s argument
as to this issue stands alone, apart from any proposed burden
shifting due to BNSF’s alleged failure to engage in the
interactive process. With this argument, Snapp asserts that
the instructions given by the district court simply misstated
as a burden of proof what he believes should have been
characterized as a mere burden of production.

    The actual instructions submitted to the jury stated:
“[T]he plaintiff has the burden of proving the following
elements by a preponderance of the evidence,” Inst. No. 10;
“To establish the defendant’s duty to provide a reasonable
accommodation, the plaintiff must prove, by a
preponderance of the evidence . . . the employer could have
made a reasonable accommodation that would have enabled
the employee to perform the essential functions of the job,”
Inst. No. 13; and, “The Defendant asserts the affirmative
defense of undue hardship . . . . The defendant has the


        engage in an interactive process with the employee to
        identify and implement appropriate reasonable
        accommodations. An employer is not required to
        engage in a futile interactive process. If no reasonable
        accommodation exists that would allow an employee
        to do his job, an employer cannot be liable for failure
        to engage in the interactive process.

Def. Prop. Instr. No. 27. At trial, however, Snapp specifically argued
against the use of this instruction. And, in any event, Snapp does not
articulate how a failure to use BNSF’s instruction or some unidentified
“interactive process” instruction could have caused harm in the absence
of a misallocated burden.
                 SNAPP V. BNSF RAILWAY                     25

burden of proving an affirmative defense by a preponderance
of the evidence.” Inst. No. 14.

   Snapp had requested an instruction that stated:

       With respect to a reasonable accommodation,
       plaintiff has the burden of identifying an
       accommodation that seems reasonable on its
       face. A plaintiff meets this burden by
       identifying a plausible accommodation or a
       method of accommodation that is reasonable
       in a typical case. Once a plaintiff makes this
       showing, defendant bears the burden of
       proving specific circumstances about this
       particular case that demonstrates an undue
       hardship.

Plaintiff’s Proposed Instr. No. 23. And in his argument to
the district court, Snapp repeatedly characterized the
underlying issue of a reasonable accommodation (or the lack
thereof) as an affirmative defense.

    In general, in the summary-judgment context, a burden-
shifting framework applies to the analysis of ADA
reasonable-accommodation claims just as it applies to
myriad other civil-rights claims. See US Airways, 535 U.S.
at 401–02. In US Airways, the Supreme Court identified a
framework adopted by “[m]any of the lower courts” in
which the “plaintiff/employee . . . need only show that an
‘accommodation’ seems reasonable on its face . . . [and then]
the defendant/ employer . . . must show special . . .
circumstances that demonstrate undue hardship.” Id. This
burden of merely identifying a possible accommodation is a
simple burden of production. Importantly, the Court did not
purport to speak as to the parties’ ultimate burdens at trial.
Rather, the Court specifically identified this framework for
26               SNAPP V. BNSF RAILWAY

use “to defeat a defendant/employer’s motion for summary
judgment.” Id. at 401.

   The Ninth Circuit has distinguished expressly the
summary-judgment burden from the plaintiff’s ultimate
burden of proof at trial:

       [The plaintiff/employee] has the burden of
       showing the existence of a reasonable
       accommodation that would have enabled him
       to perform the essential functions of an
       available job. To avoid summary judgment,
       however, [the plaintiff/employee] “need only
       show that an ‘accommodation’ seems
       reasonable on its face, i.e., ordinarily or in
       the run of cases.”

Dark v. Curry County, 451 F.3d 1078, 1088 (9th Cir. 2006)
(quoting US Airways, 535 U.S. at 401–02). This distinction
is consistent with the generally limited use of the familiar
burden-shifting framework of McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802 (1973). Because burden-shifting
frameworks like those articulated in US Airways and
McDonnell Douglas are merely analytical tools for focusing
arguments, they typically fall away at the end of the analysis
and leave the ultimate burden of proof (the burden of
persuasion) on the plaintiff. See, e.g., Costa v. Desert
Palace, Inc., 299 F.3d 838, 855–56 (9th Cir. 2002)
(“Regardless of the method chosen to arrive at trial, it is not
normally appropriate to introduce the McDonnell Douglas
burden-shifting framework to the jury. At that stage, the
framework ‘unnecessarily evade[s] the ultimate question of
discrimination vel non.’” (citations and footnote omitted)),
aff’d, 539 U.S. 90 (2003).
                 SNAPP V. BNSF RAILWAY                     27

     Snapp relies upon US Airways to support his argument
that      the    burden-of-production/burden-of-persuasion
bifurcation carries over into all ADA trials. US Airways,
however, does not support this contention for two reasons.
First, the Court in US Airways was addressing a summary-
judgment ruling, not a trial issue. 535 U.S. at 395. And
second, the Court was not addressing a general question
regarding the allocation of the burden of proof. Rather, in
US Airways, the Supreme Court addressed how a court
should consider the existence of an employer’s otherwise
non-discriminatory seniority-preference system when
assessing a reasonable-accommodation claim. Id. at 395–
96. Far from concluding a plaintiff carries only some
minimal burden at trial, the Court concluded, instead, that a
plaintiff at summary judgment must show “special
circumstances” to justify an accommodation that would
violate a seniority-preference system. Id. at 405–06 (“[W]e
do mean to say that the plaintiff must bear the burden of
showing special circumstances that make an exception from
the seniority system reasonable in the particular case.”). The
Court, therefore, in no manner suggested it was lessening a
burden or shifting more general burden of proof at trial away
from an ADA reasonable-accommodation plaintiff.

   We conclude, based upon Dark, that the district court
properly described Snapp’s burden as a burden of proof and
properly refused Snapp’s requested instruction.

        D. Motion for Judgment as a Matter of Law

    Finally, as a separate matter, Snapp argues that the
district court erroneously denied his motion for judgment as
a matter of law. Specifically, Snapp argues that a corporate
designee for BNSF made binding admissions that should
have resulted in a determination, as a matter of law, that
Snapp requested an accommodation and BNSF failed to
28               SNAPP V. BNSF RAILWAY

engage in the interactive process. We find no error in the
denial of the motion for judgment as a matter of law.

     During discovery, BNSF designated Human Resources
Director Dane Freshour as its Fed. R. Civ. P. 30(b)(6)
corporate representative. During Freshour’s deposition,
counsel for Snapp read isolated sentences from Snapp’s
letters to BNSF and elicited responses from Freshour. Snapp
correctly notes that, in these responses, Freshour appeared to
indicate Snapp had requested a reasonable accommodation
and BNSF had failed to engage in the interactive process.
Snapp argues these statements conclusively bind BNSF.

    Apart from Freshour’s answers to these questions in the
depositions, however, the record contains a full history of
communications between the parties showing that Snapp
communicated repeatedly with BNSF, sought reinstatement
of his long-term disability benefits, and accused BNSF,
CIGNA, and his doctors of conspiring against him to deny
him benefits. Moreover, two of Snapp’s letters included
doctor’s notes that did not release him to work. Rather, the
doctor’s notes stated (1) it would not be safe for Snapp to
return to work, and (2) he might be able to return to work in
the future if treatment is “further optimized.” The sentences
Snapp’s attorney asked Freshour about in the deposition
were taken from these same letters—letters that were long
and dense and primarily addressed Snapp’s grievances about
his terminated disability-insurance payments. At trial, the
BNSF employee who had been communicating with Snapp
through these letters, Emery, testified that she believed
Snapp’s letters were an attempt to reinstate his disability-
insurance benefits. She also testified that she understood a
reference by Snapp to “reasonable accommodation” to be a
reference to CIGNA policy provisions that he had attached
to his letter and that concerned rehabilitation.
                 SNAPP V. BNSF RAILWAY                      29

   Finally, BNSF’s reply letters directed Snapp to review
open positions and contact human resources, neither of
which he did.

     At trial, Freshour was questioned about his deposition
responses. Snapp, therefore, was not limited in his ability to
use the corporate designee’s deposition as evidence. And his
letters were admitted into evidence for the jury to consider.
Taken in the light most favorable to the verdict, the record
amply supports the view that Snapp neither requested an
accommodation nor took advantage of resources that could
have opened the door for the interactive process or a possible
accommodation.

    The only issue meriting discussion as to the motion for
judgment as a matter of law, then, is whether BNSF was
bound by Freshour’s deposition responses such that the jury
should not have been allowed to consider other evidence.
“[A] corporation generally cannot present a theory of the
facts that differs from that articulated by the designated Rule
30(b)(6) representative.” 7 James Wm. Moore et al.,
Moore’s Federal Practice § 30.25[3] (3d ed. 2016)
(emphasis added). As such, “courts have ruled that because
a Rule 30(b)(6) designee testifies on behalf of the entity, the
entity is not allowed to defeat a motion for summary
judgment based on an affidavit that conflicts with its Rule
30(b)(6) deposition or contains information that the Rule
30(b)(6) deponent professed not to know.” Id.

    This general proposition should not be overstated,
however, because it applies only where the purportedly
conflicting evidence truly, and without good reason or
explanation, is in conflict, i.e., where it cannot be deemed as
clarifying or simply providing full context for the Rule
30(b)(6) deposition. See, e.g., MKB Constructors v. Am.
Zurich Ins., 49 F. Supp. 3d 814, 829 n.11 (W.D. Wash. 2014)
30                SNAPP V. BNSF RAILWAY

(“[A] party cannot rebut the testimony of its Rule 30(b)(6)
witness when, as here, the opposing party has relied on the
Rule 30(b)(6) testimony, and there is no adequate
explanation for the rebuttal.”); Hyde v. Stanley Tools, 107 F.
Supp. 2d 992, 993 (E.D. La. 2000) (striking an affidavit that
“directly contradict[ed]” the party’s Rule 30(b)(6)
deposition when the party did not provide a “reasonable
explanation” for the inconsistency), aff’d, 31 F. App’x 151
(5th Cir. 2001) (per curiam). Moreover, it is important to
distinguish between the use of a Rule 30(b)(6) designee’s
comments as to ultimate legal conclusions as contrasted with
statements to establish background facts:

       the testimony of a Rule 30(b)(6) deponent
       does not absolutely bind the corporation in
       the sense of a judicial admission, but rather is
       evidence that, like any other deposition
       testimony, can be contradicted and used for
       impeachment purposes. The Rule 30(b)(6)
       testimony also is not binding against the
       organization in the sense that the testimony
       can     be     corrected,    explained      and
       supplemented, and the entity is not
       “irrevocably” bound to what the fairly
       prepared and candid designated deponent
       happens to remember during the testimony.

7 James Wm. Moore, et al., Moore’s Federal Practice
§ 30.25[3] (3d ed. 2016). “Finally, a Rule 30(b)(6)
deponent’s own interpretation of the facts or legal
conclusions do not bind the entity.” Id.

   The Tenth Circuit recently discussed limitations and
challenges to Rule 30(b)(6) testimony, stating, “the
‘majority of courts to reach the issue . . . treat the testimony
                   SNAPP V. BNSF RAILWAY                        31

of a Rule 30(b)(6) representative as merely an evidentiary
admission, and do not give the testimony conclusive effect.’”
Vehicle Mkt. Research, Inc. v. Mitchell Int’l, Inc., 839 F.3d
1251, 1260 (10th Cir. 2016) (citation omitted); see also
Keepers, Inc. v. City of Milford, 807 F.3d 24, 34 (2d Cir.
2015) (“[The plaintiff] rightly notes that an organization’s
deposition testimony is binding in the sense that whatever its
deponent says can be used against the organization. But
Rule 30(b)(6) testimony is not binding in the sense that it
precludes the deponent from correcting, explaining, or
supplementing its statements.” (footnote and quotation
marks omitted)); A.I. Credit Corp. v. Legion Ins. Co.,
265 F.3d 630, 637 (7th Cir. 2001) (“[T]estimony given at a
Rule 30(b)(6) deposition is evidence which, like any other
deposition testimony, can be contradicted and used for
impeachment purposes.” (quoting Indus. Hard Chrome, Ltd.
v. Hetran, Inc., 92 F. Supp. 2d 786, 791 (N.D. Ill. 2000)));
S. Wine & Spirits of Am., Inc. v. Div. of Alcohol & Tobacco
Control, 731 F.3d 799, 811 (8th Cir. 2013) (“A 30(b)(6)
witness’s legal conclusions are not binding on the party who
designated him, and a designee’s testimony likely does not
bind [its employer] in the sense of a judicial admission.”
(citation omitted)).

    Snapp essentially seeks to take Freshour’s deposition
answers to leading questions examining isolated sentences
from dense letters and use those answers as legal or judicial
admissions as to whether Snapp requested an
accommodation and whether BNSF engaged in the
interactive process. His proposed limitations cut severely
against the jury’s truth-seeking function. The jury was
entitled to, and did, hear the full evidence, see the full letters,
see completely what Snapp communicated to BNSF, and see
what BNSF said in response. The district court did not err
in letting the jury hear evidence to explore and explain the
32               SNAPP V. BNSF RAILWAY

full communications between the parties. As such, the
district court did not err in denying the motion for judgment
as a matter of law.

     AFFIRMED.
