                                                                              FILED
                           NOT FOR PUBLICATION                                NOV 05 2013

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



                            FOR THE NINTH CIRCUIT


DANNY SNAPP,                                     No. 12-35714

              Plaintiff - Appellant,             D.C. No. 3:10-cv-05577-RBL

  v.
                                                 MEMORANDUM*
UNITED TRANSPORTATION UNION,

              Defendant,

  And

BURLINGTON NORTHERN & SANTA
FE RAILWAY COMPANY,

              Defendant - Appellee.


                   Appeal from the United States District Court
                     for the Western District of Washington
                   Ronald B. Leighton, District Judge, Presiding

                     Argued and Submitted October 10, 2013
                              Seattle, Washington

Before: TASHIMA, GRABER, and MURGUIA, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Danny Snapp appeals from the district court’s grant of summary judgment to

Burlington Northern Santa Fe Railway (“BNSF”) on his discrimination claim

under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12112, and

related Washington state law claim for wrongful discharge. We reverse and

remand for further proceedings.

      Once a disabled employee has given an employer “notification of [his]

disability and the desire for accommodation,” Vinson v. Thomas, 288 F.3d 1145,

1154 (9th Cir. 2002) (citing Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1114 (9th Cir.

2000) (en banc), vacated on other grounds, 535 U.S. 391 (2002)), “there is a

mandatory obligation to engage in an informal interactive process ‘to clarify what

the individual needs and identify the appropriate accommodation.’” Id. (quoting

Barnett, 228 F.3d at 1112). “[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.” Barnett, 228 F.3d at 1116.

      Prior to being terminated by BNSF for failure to secure a new position with

the company following an extended disability leave, Snapp had sent BNSF a job

application letter and a letter from his physician that referred to his ongoing

disability and to his need for accommodations to perform certain tasks. While the

purpose of the letter may be unclear, it would not be unreasonable for a fact-finder

to determine that the letter was a notification of his disability and desire for
accommodation, which may have included reassignment to an appropriate position.

42 U.S.C. § 12111(9)(B). Such a request would have obligated BNSF to engage in

an interactive process with Snapp. Consequently, there is a genuine dispute over

whether BNSF engaged in good faith in a required interactive process, and failure

to do so would constitute discrimination under the ADA. 42 U.S.C. § 12112(b)(5);

29 C.F.R. § 1630.2(o)(3). It was not possible to grant summary judgment to BNSF

based on the conclusion that “BNSF did not terminate Snapp because of his

disability” where there was a dispute over whether Snapp’s termination resulted

from BNSF’s failure to engage in a mandatory interactive process.

      Similarly, the district court erred in granting summary judgment to BNSF on

Snapp’s wrongful discharge claim because BNSF offered a “justification . . . for

Snapp’s termination [that] is completely divorced from any possible public policy

at issue.” Terminating an employee because of his disability would “jeopardize the

public policy against discrimination.” Becker v. Cashman, 114 P.3d 1210, 1215

(Wash. Ct. App. 2005) (citing Wash. Rev. Code § 49.60.180). Because there is a

genuine dispute over whether Snapp’s termination occurred as a result of BNSF’s

failure to respond appropriately to requested disability accommodations, summary

judgment was not available to BNSF on this record.

      REVERSED and REMANDED.
