KINDSCHI v. FEDERAL EXPRESS CORPORATION (2019)

MEMORANDUM **

Jennifer Lee Kindschi appeals from the district court’s grant of summary judgment in favor of Federal Express Corporation (FedEx) in her Americans with Disabilities Act of 1990 ¹ (ADA) action against FedEx. We reverse and remand.

Kindschi argues that FedEx improperly terminated her because it was required to accommodate a disability that resulted in her tardy arrival at work on a number of occasions. FedEx asserts that the evidence is insufficient to support a finding that it had notice that Kindschi needed an accommodation.² The district court agreed with FedEx; we do not.

We have carefully reviewed the record and are satisfied that based upon the evidence, a reasonable fact-finder could determine ³ that FedEx knew or had reason to know ⁴ that Kindschi did need a reasonable accommodation regarding its tardiness policies.⁵ In fact, the evidence can support a determination that Kindschi told her supervisors about her underlying condition and asked for what amounted to accommodation due to the effect of that condition on her ability to arrive at the workplace precisely on time.⁶

REVERSED and REMANDED for further proceedings. Costs are to be taxed against FedEx.

FOOTNOTES

1.   Pub. L. No. 101–336, 104 Stat. 327 (codified as amended in scattered sections of 42 and 47 U.S.C.).

2.   FedEx does not dispute that Kindschi was disabled, that she was qualified to perform the essential functions of her job, and that she suffered an adverse employment action.

3.   See Celotex Corp. v. Catrett, 477 U.S. 317, 322–25, 106 S. Ct. 2548, 2552–54, 91 L. Ed. 2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–52, 255, 106 S. Ct. 2505, 2510–12, 2514, 91 L. Ed. 2d 202 (1986); Humphrey v. Mem’l Hosps. Ass’n, 239 F.3d 1128, 1133 (9th Cir. 2001).

4.   See Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1112 (9th Cir. 2000) (en banc), vacated on other grounds sub. nom. U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 122 S. Ct. 1516, 152 L. Ed. 2d 589 (2002); see also U.S. Airways, 535 U.S. at 407, 122 S. Ct. at 1526 (Stevens, J. concurring); Snapp v. United Transp. Union, 889 F.3d 1088, 1095 (9th Cir. 2018); Humphrey, 239 F.3d at 1137–38.

5.   See Humphrey, 239 F.3d at 1137. We note that conduct (here, tardiness) resulting from a disability (here, underlying depression and anxiety) “is considered to be part of the disability.” Id. at 1139–40; see also Gambini v. Total Renal Care, Inc., 486 F.3d 1087, 1093 (9th Cir. 2007).

6.   FedEx’s suggestion that Kindschi’s prior statement (that she was treated just like other employees) should judicially estop her from making the present claim is not persuasive. The district court appears to have believed that summary judgment was proper because FedEx's policy regarding timeliness was applied to Kindschi in the same manner as to other employees. This was error. By definition, the ADA is designed to accord those with disabilities different (accommodated) treatment. See U.S. Airways, 535 U.S. at 397–98, 122 S. Ct. at 1521; McAlindin v. County of San Diego, 192 F.3d 1226, 1237 (9th Cir. 1999), amended, 201 F.3d 1211, 1211 (9th Cir. 2000). Judicial estoppel does not apply. See Williams v. Boeing Co., 517 F.3d 1120, 1134 (9th Cir. 2008).