                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                         FILED
                            FOR THE NINTH CIRCUIT                            JUL 06 2011

                                                                        MOLLY C. DWYER, CLERK
HEIDI M. COÈ,                                    No. 10-35729            U.S . CO U RT OF AP PE A LS




              Plaintiff - Appellant,             D.C. No. 6:09-cv-06059-HO

  v.
                                                 MEMORANDUM *
WAL-MART STORES INC., a Delaware
foreign business corporation, DBA Wal-
Mart,

              Defendant - Appellee.


                    Appeal from the United States District Court
                             for the District of Oregon
                    Michael R. Hogan, District Judge, Presiding

                        Argued and Submitted June 10, 2011
                                 Portland, Oregon

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

       Plaintiff-Appellant Heidi Cox ('Cox') appeals from the district court's order

granting summary judgment to Wal-Mart Stores Inc. ('Wal-Mart') on her claims

of discrimination in violation of the Americans with Disabilities Act ('ADA'),

retaliation in violation of Oregon's Worµers' Compensation Law ('OWCL'), and


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
failure to reinstate in violation of the Family and Medical Leave Act ('FMLA')

and the Oregon Family Leave Act ('OFLA'). We have jurisdiction pursuant to 28

U.S.C. y 1291, and we review de novo the district court's grant of summary

judgment, 'viewing all evidence in the light most favorable to the nonmoving

party.' Kraus v. Presidio Trust Facilities Div./Residential Mgmt. Branch, 572

F.3d 1039, 1042 (9th Cir. 2009) (internal quotation marµs and citations omitted).

We reverse and remand.

1.    The district court granted Wal-Mart summary judgment on Cox's ADA

claim because (a) she was not a 'qualified individual' under the statute; and (b)

even if she were a 'qualified individual,' Wal-Mart met its burden to engage in an

interactive process of accommodation. We disagree with both conclusions.

      The ADA requires that covered employers maµe 'reasonable

accommodations to . . . an otherwise qualified individual with a disability.' 42

U.S.C. y 12112(b)(5)(A). A 'qualified individual' is 'an individual with a

disability who, with or without reasonable accommodation, can perform the

essential functions of the employment position.' 42 U.S.C. y 12111(8). 'Essential

functions' are 'fundamental job duties . . . not includ[ing] the marginal functions

of the position.' Bates v. United Parcel Service, Inc., 511 F.3d 974, 989 (9th Cir.

2007) (en banc) (internal quotation marµs and citation omitted). We require that


                                          2
'an employer who disputes the plaintiff's claim that he can perform the essential

functions must put forth evidence establishing those functions.' Id. at 991

(quoting EEOC v. Wal-Mart, 477 F.3d 561, 568 (8th Cir. 2007)) (internal quotation

marµs omitted).

      Here, Cox offered evidence that she was able to perform the essential

functions of her job with accommodations. In May 2007, when Cox returned to

worµ after her fall, Wal-Mart afforded her several accommodations. In July 2007,

Cox received an evaluation from Wal-Mart which stated that her performance

'meets expectations.' Wal-Mart argues, however, and the district court agreed,

that Cox's statements to the Social Security Administration ('SSA') negate her

assertion that she is a 'qualified individual.' Much liµe the plaintiff in Cleveland

v. Policy Management Systems Corporation, 526 U.S. 795, 807 (1999), Cox

explained that these statements did not taµe into account what she was capable of

doing with accommodations, only without. As it was in Cleveland, this

explanation is sufficient to defeat Wal-Mart's motion for summary judgment. Id.

Moreover, Wal-Mart has not put forth any evidence establishing the essential

functions of Cox's position. We therefore reverse the district court insofar as it

found that Cox was not a qualified individual.




                                          3
      In addition, we disagree with the district court's conclusion that, even if Cox

is a qualified individual, Wal-Mart is entitled to summary judgment on Cox's ADA

claim because it fulfilled its obligation to engage in the interactive process of

accommodation. Once a qualified individual requests an accommodation, an

employer is required to 'engage in an interactive process with [her] to determine

the appropriate reasonable accommodation.' Zivµovic v. S. Cal. Edison Co., 302

F.3d 1080, 1089 (9th Cir. 2002). The interactive process requires '(1) direct

communication between the employer and employee to explore in good faith the

possible accommodations; (2) consideration of the employee's request; and (3)

offering an accommodation that is reasonable and effective.' EEOC v. UPS

Supply Chain Solutions, 620 F.3d 1103, 1110 (9th Cir. 2010) (quoting Zivµovic,

302 F.3d at 1089) (internal quotation marµs omitted).

      Here, considering the facts in the light most favorable to Cox, Wal-Mart

failed to engage in the interactive process in good faith. No one told Cox that she

submitted her May 2008 leave of absence request on the wrong form. When Cox

requested an extension on a five-day deadline for returning additional leave

paperworµ in May 2008--because of a court subpoena--Wal-Mart rejected the

request. A reasonable jury could conclude from this evidence that Wal-Mart did

not engage in the interactive accommodation process in good faith. Therefore, Cox


                                           4
has raised a genuine issue of material fact precluding summary judgment on this

issue. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

2.    The district court found that Wal-Mart was entitled to summary judgment on

Cox's OWCL retaliation claim because she did not establish any causal

relationship between her inquiry into whether her injury might be covered under

OWCL and her termination. We disagree.

       Oregon law provides that it is unlawful 'for an employer to discriminate

against a worµer because the worµer has . . . invoµed . . . the procedures provided

for in' OWCL. Or. Rev. Stat. y 659A.040(1). To establish a prima facie case of a

y 659A.040(1) violation, a plaintiff must show that (1) she invoµed the worµers'

compensation system; (2) that she was discriminated against, and (3) that the

employer discriminated against her because she invoµed the worµers'

compensation system. Kirµwood v. Western Hyway Oil Co., 129 P.3d 726, 729

(Or. Ct. App. 2006). A plaintiff may rely on circumstantial evidence in

establishing her prima facie case. See Herbert v. Altimeter, Inc., 218 P.3d 542, 548

(Or. Ct. App. 2009).

      Here, considering the facts in the light most favorable to Cox, Wal-Mart

terminated her between seven and ten months after she invoµed her OWCL rights.

Cox has offered evidence that during those intervening months, Wal-Mart


                                          5
disciplined her unjustifiably on three occasions, and refused to accommodate her,

even though before Cox invoµed her rights, Wal-Mart found her performance

acceptable and gave her accommodations. A reasonable jury could infer from this

evidence that Cox's termination was causally linµed to her invocation of her

OWCL rights. See Kirµwood, 129 P.3d at 728-29 (concluding that defendant was

not entitled to summary judgment on plaintiff's OWCL retaliation claim for lacµ of

causation where nearly three years passed between the plaintiff's invocation of

rights and termination, and the plaintiff admitted that some of his employer's

disciplinary measures against him after his invocation were legitimate). Because

there are material triable issues of fact, Wal-Mart is not entitled to summary

judgment on Cox's OWCL retaliation claim.

3.    The district court found that Wal-Mart was entitled to summary judgment on

Cox's FMLA/OFLA failure to reinstate claim because it found that she did not

seeµ and Wal-Mart did not deny reinstatement. Again, we disagree.

      We recently explained that '[t]he right to reinstatement [under the FMLA]. .

. is the linchpin of the entitlement theory.' Sanders v. City of Newport, --- F.3d

----, 2011 WL 905998, *5 (9th Cir. 2011) (internal quotation marµs omitted).

Construing the evidence in Cox's favor, the record does not support the district

court's conclusion that Cox never sought reinstatement. In mid-April 2008, when


                                          6
Cox's FMLA leave was nearly exhausted, she met with a Wal-Mart human

resources employee. According to that employee, '[Cox] had expressed wanting

to come bacµ to worµ'; 'She wanted to come bacµ.' This evidence creates a

factual question as to whether Cox sought reinstatement and whether Wal-Mart

interfered with her FMLA entitlement to it. Thus, Wal-Mart is not entitled to

summary judgment on this claim.

      REVERSED and REMANDED.




                                         7
                                                                                FILED
Cox v. Wal-Mart, No. 10-35729                                                     JUL 06 2011

                                                                             MOLLY C. DWYER, CLERK
GOULD, J., dissenting in part:                                                U.S . CO U RT OF AP PE A LS




         I concur in Parts I and III, but I respectfully dissent from Part II. The

majority taµes the logical fallacy of post hoc ergo propter hoc to new heights. I

cannot agree that Cox, by showing only that she was disciplined and terminated

after she asµed about worµers' compensation, has raised a genuine issue of fact

about a causal linµ between her invocation of the system and her termination.

Because Cox has not met her prima facie burden under Oregon law, I would affirm

the district court's grant of summary judgment for Wal-Mart on the retaliation

claim.

         To prevail on a retaliation claim under Oregon Revised Statute section

659A.040(1), Cox must show that Wal-Mart discriminated against her because she

invoµed the worµers' compensation system. While it is true that 'in some cases,

causation can be inferred from timing alone where an adverse employment action

follows on the heels of protected activity,' such an inference only arises when 'the

termination . . . occurred fairly soon after the employee's protected expression.'

Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1065 (9th Cir. 2002) (internal

quotation marµs and citation omitted) (collecting cases and noting that periods as

short as four months were 'too long' to support the causal inference). Here, Cox

was terminated more than seven months after she invoµed the worµers'
compensation system. That fact, without more, does not support an inference of

retaliatory motive.

      Moreover, under our established precedent, even assuming Cox met her

prima facie burden, that is not the end of the inquiry. See McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802 (1973) (holding that the burden shifts to the

employer 'to articulate some legitimate, nondiscriminatory reason for the

employee's rejection.').1 If the employer supplies a legitimate, nondiscriminatory

reason for its actions, the burden shifts to the plaintiff, who must then show that the

reason provided by the employer was pretext for an impermissible reason. Id. at

804. Wal-Mart provided legitimate reasons for its disciplinary steps, but Cox did

not adduce any evidence that Wal-Mart's stated reasons were pretextual. Instead,

Cox alleges that the discipline she received was unfair; but a bare allegation falls

short of establishing retaliation. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.

1989) ('A summary judgment motion cannot be defeated by relying solely on

conclusory allegations unsupported by factual data.').

      I respectfully dissent as to Part II.




      1
              We have held that 'the McDonnell Douglas burden-shifting scheme is
federal procedural law' and that it applies to claims brought under Oregon Revised
Statute section 659A. Snead v. Metro. Prop. & Cas. Ins. Co., 237 F.3d 1080, 1092
(9th Cir. 2001).
