Unpublished Disposition, 934 F.2d 324 (9th Cir. 1986)

No. 90-15492.

United States Court of Appeals, Ninth Circuit.

Before ALARCON and RYMER, Circuit Judges, and McDONALD, District Judge.^* 

MEMORANDUM^** 

Dereck Feemster appeals the district court's summary judgment in favor of Hughes Aircraft in his action for wrongful termination in violation of Arizona's public policy forbidding handicap discrimination and requiring reasonable accommodation, as established in the Arizona Civil Rights Act (ACRA), Ariz.Rev.Stat. Sec. 41-1461 et. seq., and the Tucson City Code. Feemster suffers from an organic brain disorder which causes him to have a relative deficiency in verbal skills, attentional difficulties, problems with cognitive reasoning, and difficulties with long and short term memory.

He began work for Hughes Aircraft in July 1985 as a senior assembly operator. On August 7, 1986, Feemster requested eight days vacation leave. Dave Pierce, his supervisor, helped him fill out the application, which was approved. On August 25, 1986, Feemster was transferred to a new position, with a new supervisor. Prior to leaving his department, Pierce told Feemster that he would need to submit a new vacation request to his new supervisor, Russ Ballinger. Feemster's subsequent request was approved, but the vacation dates on the original form were changed from September 13 through 24 to September 15 through 19.

When Feemster failed to call in or report to work on September 22, 23, or 24, Ballinger told his supervisor who in turn notified the labor representative. The labor representative agreed that termination was appropriate under a provision of the Collective Bargaining Agreement (CBA) which provided for discharge when an employee fails to report to work on three consecutive days. Hughes then fired Feemster.

Instead of grieving his termination under the grievance and arbitration clauses of the CBA, Feemster filed a complaint of handicap discrimination with the Department of Labor's Office of Federal Contract Compliance Programs (OFCCP). It found that " [Feemster's] impairment was known by his supervisors but that it did not interfere with his ability to perform his work or to assimilate training.... At least one (1) of [his] supervisors made informal accommodations for [his] disability by carefully explaining oral and written directives ... and by assisting [Feemster] in filling out forms and processing administrative employment functions such as applying for leave." OFCCP Notification of Results of Investigation, p 5.

Feemster then brought this wrongful termination suit in state court and Hughes removed on the basis of diversity. After discovery, Hughes moved for summary judgment on the grounds that Feemster is not "handicapped" within the meaning of Arizona law; he failed to notify Hughes of his impairment as required under Ariz.Rev.Stat. Sec. 41-1463(F) (5); it lacked discriminatory animus because the persons who made the discharge decision did not know of Feemster's handicap; the Tucson City Code is not a source of public policy; Feemster's claim is preempted by Sec. 301 of the Labor Management Relations Act, 29 U.S.C. § 185(a); and the claim is time barred. The district court based its ruling on all grounds but preemption.

For purposes of this appeal we assume that Feemster is handicapped, his wrongful discharge claim is a tort based on public policy inhering in the Arizona Civil Rights Act but that he need not adhere to the procedural prerequisites for pursuing a claim under the Act, the gravamen of his claim is failure to accommodate, and that his claim is not time-barred. Nevertheless, we affirm the summary judgment, because Feemster has failed to raise a triable issue of fact as to whether his discharge was on account of Hughes's failure to accommodate his handicap.

Feemster concedes that he bears the burden of proving that Hughes knew of his handicap and failed to make reasonable accommodation for it. As such, he must come forward with specific facts showing there is a genuine issue for trial as to Hughes's knowledge. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).

The OFCCP Report is Feemster's only evidence on the point. We assume that the Report is admissible, see Plummer v. Western Int'l Hotels Co., 656 F.2d 502, 505 (9th Cir. 1981), and that knowledge of any one supervisor could be imputed to Hughes, see Kimbro v. Atlantic Richfield Co., 889 F.2d 869, 877 (9th Cir. 1989), cert. denied, 111 S. Ct. 53 (1990); Martinez v. Lucky Stores, Inc., 18 Ariz.App. 412, 502 P.2d 1089, 1091 (1972) (employee statements "imputable to Lucky Stores under well-established agency principles"). However, the Report's "findings" are merely conclusory, without factual or evidentiary support. For this reason, the fact that its investigation "revealed that the complainant's impairment was known by his supervisors" and that " [a]t least one (1) of the complainant's supervisors made informal accommodations for the complainant's disability" is not significantly probative. That leaves declarations by Hughes's management and supervisors disclaiming knowledge of Feemster's disability substantially uncontroverted. Under these circumstances summary judgment was appropriately granted. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).

Both parties requested attorney's fees for this appeal under Ariz.Rev.Stat. Sec. 12-341.01 and Sec. 41-1481(J). Section 41-1481(J) is inapplicable, as it applies to parties who prevail in actions involving claims for relief under the ACRA. See Broomfield v. Lundell, 159 Ariz. 349, 767 P.2d 697, 705 (App.1988). Section 12-341.01 provides for the discretionary award of reasonable attorney's fees in "any contested action arising out of a contract, express or implied." We decline to award fees, as Feemster's appeal appropriately raised a number of substantial issues.

AFFIRMED.