                                                                             FILED
                            NOT FOR PUBLICATION                               DEC 05 2011

                                                                          MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



MIKE WELLINGTON,                                  No. 10-36176

              Plaintiff - Appellant,              D.C. No. 6:09-cv-06063-AA

  v.
                                                  MEMORANDUM *
LANE COUNTY; et al.,

              Defendants - Appellees.



                   Appeal from the United States District Court
                            for the District of Oregon
                   Ann L. Aiken, Chief District Judge, Presiding

                     Argued and Submitted November 16, 2011
                                Portland, Oregon

Before: FISHER, PAEZ, and CLIFTON, Circuit Judges.

       Mike Wellington (“Wellington”) appeals the district court’s order granting

summary judgment to Lane County, Robert Rockstroh (“Rockstroh”), and William

Fleenor (“Fleenor”) on his claims for deprivation of a protected liberty interest in

violation of the Fourteenth Amendment, failure to reinstate in violation of the



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Family Medical Leave Act (“FMLA”) and Oregon Family Leave Act (“OFLA”),

and discrimination in violation of the Americans with Disabilities Act (“ADA”)

and Oregon disability discrimination law. We affirm the district court’s summary

judgment on Wellington’s § 1983 claim, and vacate and remand with respect to the

remaining claims.

      The district court properly concluded that Fleenor, Rockstroh, and Lane

County were entitled to summary judgment on Wellington’s § 1983 claim. A

liberty interest is implicated only if a contested public disclosure impugns an

individual’s reputation for honesty or morality. Guzman v. Shewry, 552 F.3d 941,

955 (9th Cir. 2009). Even assuming the statements made by Fleenor and

Rockstroh were inaccurate or disclosed to the public, such pronouncements did not

give rise to a protected liberty interest because they could not be reasonably

construed as involving charges of dishonesty or moral turpitude. FDIC v.

Henderson, 940 F.2d 465, 477 (9th Cir. 1991). To the extent Wellington continues

to assert this claim against Lane County on appeal, his claim fails because he did

not identify a policy or custom that resulted in any injury to his reputation. Monell

v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978).

       The district court erred in granting summary judgment on Wellington’s

FMLA and OFLA interference claims on the basis that he failed to show that any


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adverse employment action was motivated by the exercise of his statutory rights.

We recently explained that an employer’s intent is not relevant to a determination

of liability for purposes of FMLA, and consequently OFLA, interference claims.

Sanders v. City of Newport, 657 F.3d 772, 778 (9th Cir. 2011); see also Or. Rev.

Stat. § 659A.186(2) (OFLA “shall be construed to the extent possible in a manner

that is consistent with any similar provisions of” FMLA).

      Moreover, triable issues preclude the entry of summary judgment on

Wellington’s FMLA and OFLA claims.1 Genuine issues of material fact exist as to

whether he returned to the same, or an equivalent, position. Although Wellington

retained the same pay, benefits, and job title, Lane County reassigned him to a

different work location, eliminated his supervisory authority, and modified his

managerial responsibilities. See 29 C.F.R. § 825.215(a). Genuine issues of

material fact also exist as to whether Lane County would have reduced

Wellington’s job responsibilities and ultimately terminated his employment

regardless of whether he took protected leave, particularly in light of the temporal

proximity between his return from medical leave and these alleged adverse

employment actions. See 29 C.F.R. § 825.216(a); Or. Rev. Stat. § 659A.171(1);



      1
             Wellington does not challenge the district court’s summary judgment
dismissal of his OFLA retaliation claim on appeal.

                                          3
see also Passantino v. Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493,

507 (9th Cir. 2000).

      We also disagree with the district court’s conclusion that Wellington failed

to establish a prima facie case of disability discrimination under the ADA or its

state law counterpart because he did not present evidence of discrimination on the

basis of disability. Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1246 (9th Cir.

1999) (identifying the elements of a prima facie case under the ADA). We have

recognized that a plaintiff’s burden at the prima facie stage is not onerous, Hawn v.

Exec. Jet Mgmt., Inc., 615 F.3d 1151, 1158 (9th Cir. 2010), and the necessary

evidence is minimal, Chuang v. Univ. of Cal. Davis, Bd. of Trustees, 225 F.3d

1115, 1124 (9th Cir. 2000). Although Wellington did not disclose his precise

medical condition, Lane County was aware that he had taken leave to undergo

serious medical treatment. Drawing all permissible inferences in Wellington’s

favor, a reasonable jury could conclude that the Lane County Human Resources

director’s concern about Wellington’s health and well-being impacted the ensuing

employment actions taken by Lane County – specifically, modifications in his job

responsibilities and then his termination.

      Wellington has also raised genuine issues of material fact as to whether Lane

County’s explanation for its employment actions – mainly, staff dissatisfaction,


                                             4
potential workplace disruption, and budget constraints – were merely a pretext for

discrimination. Snead v. Metro. Prop. & Cas. Ins. Co., 237 F.3d 1080, 1093 (9th

Cir. 2001). The County officials’ knowledge that Wellington’s health necessitated

significant medical treatment, the Human Resources director’s statements and

inquiries regarding Wellington’s health, and the temporal proximity between his

return from receiving medical treatment and the employment actions taken by Lane

County preclude summary judgment on Wellington’s ADA and Oregon disability

discrimination claims.

      AFFIRMED in part, VACATED in part and REMANDED. Wellington

shall recover his costs on appeal.




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