                                                                           FILED
                            NOT FOR PUBLICATION
                                                                           AUG 16 2016
                     UNITED STATES COURT OF APPEALS                     MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


LARRY R. DAWSON,                                 No.   12-16789

               Plaintiff-Appellant,              D.C. No. 2:11-cv-00420-NVW

 v.
                                                 MEMORANDUM*
AKAL SECURITY INCORPORATED,

               Defendant-Appellee.


                    Appeal from the United States District Court
                             for the District of Arizona
                      Neil V. Wake, District Judge, Presiding

                            Submitted August 11, 2016**
                              San Francisco, California

Before: GRABER and McKEOWN, Circuit Judges, and PETERSON,*** District
Judge.




         *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
         **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
         ***
             The Honorable Rosanna Malouf Peterson, United States District Judge
for the Eastern District of Washington, sitting by designation.
      Larry Dawson appeals the district court’s award of summary judgment in

favor of AKAL Security, Inc., on his claims for discrimination and retaliation

under the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101 et

seq. Reviewing the district court’s order de novo, Humphrey v. Mem. Hosps.

Ass’n, 239 F.3d 1128, 1133-34 (9th Cir. 2001), we reverse and remand because

Dawson presented a triable issue of fact whether AKAL’s decision to place

Dawson on unpaid leave while it delayed the interactive process for two months

violated the ADA.

      The district court first erred by excluding two of Dawson’s exhibits. The

first—a letter from the Equal Employment Opportunity Commission finding that

there was “reasonable cause to believe that there is a violation of the ADA in that

[AKAL] denied [Dawson] a reasonable accommodation and retaliated against

[Dawson] by placing him on administrative leave”—was a self-authenticating

document. Fed. R. Evid. 902(1). The second—a medical release from Dawson’s

physician—appeared genuine on its face. See Fed. R. Evid. 901(b) (providing a

non-exhuastive list of means to establish authenticity); see also Las Vegas Sands,

LLC v. Nehme, 632 F.3d 526, 533 (9th Cir. 2011) (“Under Rule 901(b)(4),

‘documents could be authenticated by review of their contents if they appear to be

sufficiently genuine.’” (ellipses omitted) (quoting Orr v. Bank of Am., NT, 285


                                          2
F.3d 764, 778 n.24 (9th Cir. 2002)). Neither error was harmless because the

exhibits both support an inference that the decision to place Dawson on unpaid

leave for two months was based on Dawson’s disability and his request for an

accommodation.

      AKAL’s decision to place Dawson on unpaid leave from June 9, 2009,

through July 31, 2009, while it conducted the interactive process could constitute a

failure to engage in the interactive process, Humphrey, 239 F.3d at 1137-38,

discrimination, Snead v. Metro. Prop. & Cas. Ins. Co., 237 F.3d 1080, 1087 (9th

Cir. 2001), and retaliation for requesting an accommodation, Brown v. City of

Tucson, 336 F.3d 1181, 1187 (9th Cir. 2003). AKAL’s contractual obligation to

conduct a fitness for duty evaluation does provide a “legitimate, nondiscriminatory

reason” for placing Dawson on paid leave, Raytheon Co. v. Hernandez, 540 U.S.

44, 49 n.3 (2003), but AKAL offered no reason for its decision to change

Dawson’s status from paid to unpaid leave and to leave Dawson in that status for

almost two months—an action that contradicts the terms of AKAL’s contract with

U.S. Customs and Immigration Enforcement. The fact that unpaid leave may be a

reasonable accommodation when it is requested “does not mean that it cannot also

be an adverse action, particularly where the employee is placed on unpaid leave

involuntarily.” Steenmeyer v. Boeing Co., 92 F. Supp. 3d 1024, 1031 (W.D. Wash.


                                          3
2015). The excluded exhibits, along with the other facts in the case, including that

Dawson was told days before the change to unpaid leave to work or be fired,

further give rise to an inference that the adverse employment action was causally

related to Dawson’s request for an accommodation of his disability. Brown, 336

F.3d at 1187.

      REVERSED AND REMANDED.




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