                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                           FOR THE NINTH CIRCUIT                              OCT 05 2011

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

CAROL A. GOOS,                                   No. 10-16101

                 Plaintiff - Appellant,          D.C. No. 3:07-cv-06130 CRB

v.
                                                 MEMORANDUM*
SHELL OIL COMPANY, doing business as
SHELL OIL PRODUCTS U.S.,

                 Defendant - Appellee.

                   Appeal from the United States District Court
                     for the Northern District of California
                   Charles R. Breyer, District Judge, Presiding

                     Argued and Submitted September 2, 2011
                            San Francisco, California

Before: BERZON and BYBEE, Circuit Judges, and WHELAN, Senior District

Judge.**

      Appellant Carol Goos appeals the district court’s order granting Appellee

Shell Oil Company’s motion for judgment as a matter of law. Because the



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      **
             The Honorable Thomas J. Whelan, Senior District Judge for the U.S.
District Court for the Southern District of California, sitting by designation.
evidence establishes that no reasonable juror could find in Goos’s favor on either

of her remaining claims, we affirm the district court’s ruling.

                            STANDARD OF REVIEW

      This Court reviews de novo a district court’s grant of a motion for judgment

as a matter of law. Martin v. Cal. Dep’t of Veterans Affairs, 560 F.3d 1042, 1046

(9th Cir. 2009). Judgment as a matter of law is “properly granted only if no

reasonable juror could find in the non-moving party’s favor.” Torres v. City of

Los Angeles, 548 F.3d 1197, 1205 (9th Cir. 2008) (citation omitted).

                                   DISCUSSION

      Goos raises multiple challenges to the district court’s order. First, Goos

argues that dismissal of the entire case was improper because her claims for

discrimination and failure to prevent discrimination had not been resolved. But in

opposing Shell’s summary judgment motion, Goos conceded that these claims

were predicated entirely on the failure to accommodate, failure to engage in the

interactive process, and retaliation claims. The retaliation claim was dismissed on

summary judgment, at which time the court stated that the only remaining claims

were for failure to accommodate and failure to engage in the interactive process.

The failure to accommodate and failure to engage in the interactive process claims




                                          2
were then dismissed at the close of Goos’s case-in-chief. The district court,

therefore, did not err in dismissing the entire lawsuit.

      Next Goos argues that Shell’s motion was procedurally defective because

she was not informed of the deficiencies in her proof and given an opportunity to

correct them. Goos relies on Summers v. Delta Air Lines, Inc., 508 F.3d 923 (9th

Cir. 2007). Because Goos did not raise this issue until her Reply Brief in this

court, the argument was waived. See Arpin v. Santa Clara Valley Transp. Agency,

261 F.3d 912, 919 (9th Cir. 2001) (“[I]ssues which are not specifically and

distinctly argued and raised in a party’s opening brief are waived.”). Additionally,

Summers involved a motion for judgment as a matter of law before the close of

plaintiff’s case-in-chief that was granted on grounds not raised by the moving

party. 508 F.3d at 926. Neither circumstance is present here. Furthermore, Rule

50 is intended to permit a party to introduce additional facts if the facts already in

evidence are insufficient. Goos, however, failed to identify any additional facts

that she would have introduced.

      Third, Goos argues that a reasonable jury could have found that Shell failed

to engage in good faith in the interactive process and failed to accommodate her.

The interactive process requires both the employer and the employee to engage in

good faith in order to “clarify what the individual needs and identify the



                                           3
appropriate accommodation.” Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1112 (9th

Cir. 2000), rev’d on other grounds, 535 U.S. 391 (2002) (quoting Enforcement

Guidance: Reasonable Accommodation and Undue Hardship Under the Americans

with Disabilities Act, EEOC Compliance Manual (CCH), § 902, No. 915.002 (Mar.

1, 1999), at 5440). While the employer’s participation is necessary because it has

“superior knowledge regarding the range of possible positions and can more easily

perform analyses regarding the ‘essential functions’ of each,” the employee’s

participation is equally important because he or she generally knows more about

his or her capabilities, and “holds essential information for the assessment of the

type of reasonable accommodation which would be most effective.” Id. at 1113.

      The evidence introduced during Goos’s case-in-chief establishes that after

receiving notice that she could not work as a result of depression, Shell attempted

to gather information to determine what accommodations were necessary to enable

Goos to return to work. In response, from June 2006 through October 2007, Goos

and her representatives stated that Goos could not return to work because of her

depression. Based on this information, Shell accommodated Goos by providing a

leave of absence for several years. See Surrell v. Cal. Water Serv. Co., 518 F.3d

1097, 1109 (9th Cir. 2008) (providing disability leave is evidence of reasonable

accommodation).



                                          4
      The evidence further establishes that Goos did not participate in good faith

in the interactive process. Goos and her treating psychiatrist, Dr. Peter Brandes,

believed Goos could not return to work as a machinist because of perceived

discrimination in the machine shop. By withholding this information, Goos

prevented Shell from learning that it should consider reassigning Goos. This

problem was then compounded because Goos and her representatives never

informed Shell that she wanted to be reassigned or could return to work if

reassigned.

      Goos argues, however, that after receiving Dr. Carol Fenner’s Independent

Medical Exam (“IME”) report, Shell was obligated to reassign her. But shortly

after Shell obtained the report, Goos sent a strong message that she was not

interested in engaging in the interactive process and wanted to leave Shell. Where

a breakdown in the interactive process occurs, a “court should attempt to isolate the

cause of the breakdown and then assign responsibility so that liability . . . ensues

only where the employer bears responsibility for the breakdown.” Barnett, 228

F.3d at 1115; see also Dep’t of Fair Emp’t & Hous. v. Lucent Techs., Inc., 642

F.3d 728, 743 (9th Cir. 2011) (holding that the employer could not be liable for

failure to engage in the interactive process where the employee caused the

breakdown in that process); cf. Jensen v. Wells Fargo Bank, 102 Cal. Rptr. 2d 55,



                                          5
68 (Ct. App. 2000) (an employee cannot prevail on a FEHA failure-to-

accommodate claim where the evidence establishes that “the employer did

everything in its power to find a reasonable accommodation, but the informal

interactive process broke down because the employee failed to engage in

discussions in good faith”). In this case, a reasonable juror could only conclude

that Goos’s lack of candor, her decision to preclude Dr. Brandes from discussing

the cause of her depression with Shell, her attorney’s June 28, 2007 letter accusing

Shell of prematurely attempting to return Goos to work,1 her attorney’s and

psychiatrist’s silence after receiving the IME report, and her request for a

severance package or disability retirement from Shell caused the breakdown of the

interactive process. Therefore, the district court properly granted Shell’s motion

for judgment as a matter of law.

      The court did not commit prejudicial error when it refused to admit certain

witness testimony. The district also properly granted Shell’s motion for summary

judgment as to Goos’s claims for punitive damages. Finally, the district court did

not err in denying Goos’s motion for partial summary adjudication. Goos’s

remaining arguments lack merit.



      1
       Because Goos attached the June 28, 2007 letter to her complaint with the
California Department of Fair Employment and Housing, the district court properly
admitted the letter into evidence.

                                          6
AFFIRMED.




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