                                                                              FILED
                           NOT FOR PUBLICATION
                                                                                JUL 2 2020
                    UNITED STATES COURT OF APPEALS                         MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


JORGE ROSALES,                                   No.   19-15574

              Plaintiff-Appellant,               D.C. No.
                                                 2:17-cv-03117-JCM-GWF
 v.

BELLAGIO, LLC,                                   MEMORANDUM*

              Defendant-Appellee.


                    Appeal from the United States District Court
                             for the District of Nevada
                     James C. Mahan, District Judge, Presiding

                        Argued and Submitted June 10, 2020
                             San Francisco, California

Before: THOMAS, Chief Judge, and SCHROEDER and BUMATAY, Circuit
Judges.

      Jorge Rosales appeals the district court’s grant of summary judgment to

Bellagio, LLC on Rosales’ claim that Bellagio violated the Americans with

Disability Act (ADA) when it terminated Rosales from his job as a room service




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
food server. Because the district court applied the wrong legal standard when

evaluating Rosales’ ADA claim, we reverse and remand.

      Rosales initially filed a complaint in Nevada state court alleging, inter alia,

discrimination in violation of the ADA for failure to provide a reasonable

accommodation. Bellagio removed the case to federal court and then moved for

summary judgment. In its motion, Bellagio contended that Rosales admitted that

he could not perform his essential job functions with a reasonable accommodation,

and that Bellagio complied with the ADA by engaging in the interactive process in

good faith in reaching that conclusion. In response, Rosales argued that he could

perform the essential job functions, and that Bellagio reached its conclusion that he

could not do so prior to any discussion with Rosales, which violates ADA’s

interactive process requirement. The parties thus briefed the case to the district

court on the issue of reasonable accommodation and whether the employer had

engaged in the required interactive process.

      The district court granted summary judgment to Bellagio. The district court

decided the case on the issue of disparate treatment, and, applying the McDonnell

Douglas burden-shifting framework, held that Rosales failed to raise a triable issue

of material fact as to pretext. It granted summary judgment for Bellagio. At the

same time, however, the district court ruled that Bellagio had not engaged in the


                                           2
interactive process in good faith, and that the record allowed the court to infer that

there was a reasonable accommodation that would allow Rosales to work as a

server. The Court’s decision to grant summary judgment thus does not appear to

be internally consistent. See Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1113 (9th

Cir. 2000) (en banc), vacated on other grounds sub. nom., 535 U.S. 391 (2002)

(“[E]mployers, who fail to engage in the interactive process in good faith, face

liability . . . if a reasonable accommodation would have been possible. . . . [A]n

employer cannot prevail at the summary judgment state if there is a genuine

dispute as to whether the employer engaged in good faith in the interactive

process.”). It also does not appear to be congruent with the arguments of the

parties. Rosales appealed, contending that the district court applied the wrong

legal standard. We agree. We therefore reverse and remand for proper resolution

of Rosales’ ADA failure to accommodate claim.

      REVERSED AND REMANDED.




                                           3
                                                                       FILED
Rosales v. Bellagio, No. 19-15574                                       JUL 2 2020
                                                                   MOLLY C. DWYER, CLERK
BUMATAY, Circuit Judge, dissenting:                                  U.S. COURT OF APPEALS


      I agree with the majority: the district court applied the wrong legal standard

to Bellagio’s motion for summary judgment. But that doesn’t end our inquiry.

When reviewing a grant of summary judgment, we may affirm on any basis

supported by the record—even when the district court errs in the first instance. USA

Petroleum Co. v. Atl. Richfield Co., 13 F.3d 1276, 1279 (9th Cir. 1994). Applying

the appropriate standard for a failure-to-accommodate claim leads Rosales’s case to

the same dead end: Bellagio is entitled to summary judgment.

                                         I.

      The Americans with Disabilities Act prohibits employment discrimination

“on the basis of disability.” 42 U.S.C. § 12112(a). Prohibited discrimination

includes a failure to make “reasonable accommodations” for “an otherwise qualified

individual with a disability.” 42 U.S.C. § 12112(b); see Dunlap v. Liberty Natural

Prods., Inc., 878 F.3d 794, 798 (9th Cir. 2017). To prevail on his failure-to-

accommodate claim, Rosales bears the burden of showing that he is a qualified

individual able to perform the essential functions of the job with or without a

reasonable accommodation. Dark v. Curry Cnty., 451 F.3d 1078, 1086 (9th Cir.

2006).




                                         1
      Rosales undoubtedly finds himself in an unfortunate situation, unable to work

after 18 years of loyal service to Bellagio because of an injury he sustained while

working. But the ADA requires only reasonable accommodations; it does not

require employers to make fundamental changes to the tasks required by the job. At

summary judgment, Bellagio has demonstrated that Rosales could not perform the

essential functions of his job, and that there was no accommodation available to

change that fact.

      After his injury, Rosales was subject to permanent restrictions from his doctor.

Rosales couldn’t lift more than 36 pounds and needed to avoid “repetitive

movements of the neck and . . . reaching overhead on the right side.” Yet the

essential functions of Rosales’s job required exactly this. For example, the job

description for food servers like Rosales indicates that flexibility, kneeling, and

reaching were essential functions of the job. Servers also had to carry hot boxes that

weighed approximately 36 pounds, apparently while empty.             Rosales himself

testified that his job demanded a lot of neck movement and that there were various

parts of the job he could no longer do. 1 Put simply, there’s no genuine dispute that

Rosales could no longer do the essential functions of the job.


1
  Rosales conceded he could not do all the “side work”—the work food servers did
between delivering orders to customers, such as cleaning and resupplying the
kitchen. For example, Rosales admitted he could not frequently carry a gallon of
milk or juice from the refrigerator, and that he couldn’t unstack and set up tables. In


                                          2
      Rosales contends that he could perform the essential functions of the job—all

he needed was an accommodation. Yet Rosales can’t show that any reasonable

accommodation was available that would’ve enabled him to do the job. See Dark,

451 F.3d at 1088 (recognizing that at summary judgment an employee must identify

the existence of an accommodation that at least seems reasonable on its face).

During his meeting with Bellagio, and throughout these proceedings, Rosales has

suggested a single possible accommodation: being allowed to just do “light work,”

meaning handling “[c]offee orders, regular orders, amenities, which are very light.”

Thus, Rosales was asking for a permanent “modified/light work” version of his job,

in which his coworkers would be expected to pick up the slack. Bellagio was under

no obligation to create such a light-duty position where none exists. Id. at 1089

(“The ADA does not require an employer to exempt an employee from performing

essential functions or to reallocate essential functions to other employees.”); Samper

v. Providence St. Vincent Med. Ctr., 675 F.3d 1233, 1240 (9th Cir. 2012) (asking to

be exempt from essential functions is not a reasonable accommodation). Rosales

basically wanted to limit his duties to delivering coffee, chocolates, flowers, and




fact, the only side work that Rosales indicated he could do was cleaning the beverage
area. It is undisputed that this “side work” is an essential function of the job.

                                          3
other “light stuff.” It is undisputed that the essential functions of the job include

much more. 2

                                          II.

      Rosales argues that Bellagio failed to engage in a good-faith interactive

process. The district court agreed, relying on the fact that Bellagio decided no

accommodation existed before meeting with Rosales. Without more, I am doubtful

this constitutes a failure to engage in a good-faith interactive process.3 Even so,

regardless of its participation in a good-faith interactive process, Bellagio can be

held liable only if a reasonable accommodation was actually available and denied to

Rosales. Snapp v. United Transportation Union, 889 F.3d 1088, 1095 (9th Cir.

2018) (“[T]here exists no stand-alone claim for failing to engage in the interactive

process. Rather, discrimination results from denying an available and reasonable

accommodation.”). As explained above, Bellagio has shown that no reasonable


2
  Even if a light-duty position was a reasonable accommodation, Rosales admitted
that he can’t even perform the “light work.” For example, in discussing the neck
movements required by the job, Rosales plainly stated: “even after my surgery, doing
the light work, I don’t think that would help me. I think that would actually hurt
me[.]” Likewise, he testified that he “started wondering” during his meeting with
Bellagio whether he “can do some of the light work.” He also testified that he wasn’t
able to sit through a GED course because his “neck would start hurting a lot.”
Accordingly, it’s clear that Rosales can’t do the job even if he was entitled to just do
the “light work.”
3
  We’ve previously rejected this as a basis for finding a lack of good faith because
“the law affords employers the ability to have some internal discussion.” Dep’t of
Fair Emp’t & Hous. v. Lucent Techs., Inc., 642 F.3d 728, 743 n.15 (9th Cir. 2011)
(analyzing claim under similar California antidiscrimination law).

                                           4
accommodation existed as a matter of law. Accordingly, it’s entitled to summary

judgment.

      The majority cites Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1113 (9th Cir.

2000) (en banc), vacated sub. nom., 535 U.S. 391 (2002), to suggest that “[a]n

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.” But

Barnett was vacated and is no longer good law. See Durning v. Citibank, N.A., 950

F.2d 1419, 1424 n.2 (9th Cir. 1991) (“A decision may be reversed on other grounds,

but a decision that has been vacated has no precedential authority whatsoever.”).

      Our decisions now hold that an employer may still prevail on a summary

judgment motion—despite a genuine dispute as to good-faith participation in the

interactive process—if the employer proves no reasonable accommodation is

available. See Morton v. United Parcel Serv., Inc., 272 F.3d 1249, 1256 n.7 (9th

Cir. 2001), overruled on other grounds by Bates v. United Parcel Serv., Inc., 511

F.3d 974 (9th Cir. 2007); Dark, 451 F.3d at 1088 (recognizing that even where the

employer failed to engage in the interactive process, summary judgment remains

available to an employer who can show that “there would in any event have been no

reasonable accommodation available”) (simplified). 4 This is for good reason. A


4
 Although this court recently repeated Barnett’s questionable line in Anthony v.
Trax Int’l Corp., 955 F.3d 1123, 1134 (9th Cir. 2020), that statement was “not


                                         5
contrary holding would run afoul of the “plain language of [Rule 56, which]

mandates the entry of summary judgment . . . against a party who fails to make a

showing sufficient to establish the existence of an element essential to that party’s

case, and on which that party will bear the burden of proof at trial.” Celotex Corp.

v. Catrett, 477 U.S. 317, 322 (1986). The ADA does not impose liability for a failure

to engage in an interactive process (a phrase found nowhere in the statute)—but only

for a failure to accommodate. Snapp, 889 F.3d at 1095. Resuscitating the now-

defunct Barnett rule would “require more than a little judicial adventurism, and look

a good deal more like amending a law than interpreting one.” Comcast Corp. v.

Nat’l Ass’n of African Am.-Owned Media, 140 S. Ct. 1009, 1017 (2020).

                                        III.

      I understand the majority’s approach in remanding here. The district court

applied the wrong legal standard, so sending the case back is reasonable. But nearly

20 years ago, we observed that “the resources of the federal judiciary, and this

Circuit especially, are strained to the breaking point.” Doi v. Halekulani Corp., 276

F.3d 1131, 1141 (9th Cir. 2002). No doubt this strain on our resources has only

gotten worse since. Because Rosales can’t show any reasonable accommodation




necessary to the decision and thus [has] no binding or precedential impact[.]” Exp.
Grp. v. Reef Indus., Inc., 54 F.3d 1466, 1472 (9th Cir. 1995).

                                         6
exists here, I see no reason to remand this case for the district court to merely reenter

summary judgment for Bellagio.

      Accordingly, I respectfully dissent.




                                           7
