NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 26 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
MICHAEL A. REHFELDT, No. 23-15240
Plaintiff-Appellant, D.C. No. 1:20-cv-00181-KJM
v. MEMORANDUM* U.S. DEPARTMENT OF HOMELAND SECURITY; ALEJANDRO N. MAYORKAS, Secretary of Homeland Security (substituted for former Acting Secretary of Homeland Security Chad Wolf, pursuant to FRCP 25(d)),
Defendants-Appellees,
and
CHAD F. WOLF,
Defendant.
Appeal from the United States District Court for the District of Hawaii Kenneth J. Mansfield, Magistrate Judge, Presiding
Argued and Submitted February 14, 2024 University of Hawaii Manoa
Before: PAEZ, M. SMITH, and KOH, Circuit Judges.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Michael Rehfeldt appeals the district court’s order granting summary
judgment in favor of the Department of Homeland Security and Alejandro
Mayorkas (collectively, “Defendants”). We have jurisdiction pursuant to 28 U.S.C.
§ 1291. Because the parties are familiar with the facts, we do not recount them
here, except as necessary to provide context to our ruling. We affirm in part and
reverse in part.
1. The district court did not abuse its discretion by deeming Defendants’
statement of undisputed facts admitted for purposes of summary judgment. The
District Court’s Local Rule 56.1(g) provides that “material facts set forth in the
movant’s concise statement will be deemed admitted unless controverted by a
separate concise statement of the opposing party.” Local Rules of Practice for the
United States District Court for the District of Hawaii (Aug. 26, 2019). Local rules
have the “force of law” and are binding upon the parties and the court. Martel v.
County of Los Angeles, 21 F.3d 940, 946–47 (9th Cir. 1994). Rehfeldt admits that
he failed to controvert almost all of Defendants’ factual assertions. The district
court thus did not abuse its discretion by following its own rules and deeming
Defendants’ factual statements admitted.
2. Even treating Defendants’ statements of fact as admitted, however, the
district court erred in granting Defendants summary judgment on Rehfeldt’s Count
II for violation of the Rehabilitation Act, 29 U.S.C. § 701, et seq.
2 Under the Act, “[o]nce an employee requests an accommodation . . . , the
employer must engage in an interactive process with the employee to determine the
appropriate reasonable accommodation.” U.S. E.E.O.C. v. UPS Supply Chain Sols.,
620 F.3d 1103, 1110 (9th Cir. 2010) (quoting Zivkovic v. S. Cal. Edison Co., 302
F.3d 1080, 1089 (9th Cir. 2002)).1 This 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.” Id. (quoting Zivkovic,
302 F.3d at 1089). Rehfeldt asserts that at least three genuine disputes of material
fact exist as to whether Defendants engaged in this interactive process in good
faith, specifically with respect to: (1) his request to work remotely; (2) his request
under the Voluntary Leave Transfer Program (“VLTP”); and (3) his relocation to
the Annex. We consider each in turn.
First, Rehfeldt has failed to raise a genuine dispute of material fact regarding
whether Defendants improperly rejected his request for remote work because the
evidence, even viewed in the light most favorable to Rehfeldt, shows that
Defendants engaged in the interactive process in response to this request. Indeed,
although a request to work remotely can in some cases be considered reasonable,
1 “In determining whether a federal agency has violated the Rehabilitation Act, the standards under Title I of the Americans with Disabilities Act (‘ADA’) apply.” McLean v. Runyon, 222 F.3d 1150, 1153 (9th Cir. 2000) (citation omitted).
3 see Humphrey v. Mem’l Hosps. Ass’n, 239 F.3d 1128, 1137 (9th Cir. 2001),
Defendants indicated that implementing such a request would pose an “undue
burden” given that Rehfeldt’s job required handling sensitive information. More
importantly, Defendants offered Rehfeldt at least one practical alternative,
specifically that he take various forms of leave, which this court has considered a
reasonable accommodation under the Act. See id. at 1136. Defendants thus
satisfied their obligation, and the district court properly granted summary judgment
on this issue.
Second, Rehfeldt has raised a genuine dispute of material fact regarding
whether his VLTP request would have constituted a reasonable accommodation.
As part of the interactive process, the employee has the initial burden of showing
that a reasonable accommodation is possible. See Buckingham v. United States,
998 F.2d 735, 740 (9th Cir. 1993). Once the employee has done so, the employer
cannot “avoid reasonable accommodation absent a showing of undue hardship.”
Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1113 (9th Cir. 2000), vacated on other
grounds sub nom. US Airways, Inc. v. Barnett, 535 U.S. 391 (2002).
Defendants argue that Rehfeldt was ineligible for VLTP on the basis that he
had not yet exhausted his other leave sources at the time of his application. But
Rehfeldt has presented evidence that such a requirement was not consistently
enforced. Thus, a genuine dispute of material fact exists as to whether VLTP
4 would have constituted a reasonable accommodation that Defendants were
required to consider. UPS Supply Chain Sols., 620 F.3d 1103 (quoting Zivkovic,
302 F.3d at 1089). Summary judgment was therefore improper.
Finally, Rehfeldt has raised a genuine dispute of material fact regarding
whether his relocation to the Annex was an effective accommodation. Under the
Act, “[a]n appropriate reasonable accommodation must be effective.” Barnett, 228
F.3d at 1115; see also UPS Supply Chain Sols., 620 F.3d at 1110 (“Ineffective
modifications . . . are not accommodations.”). And though the interactive process
required by the Act “does not require an employer to be clairvoyant regarding the
effectiveness of a modification,” UPS Supply Chain Sols., 620 F.3d at 1112, an
employee need only show that their employer “was aware or should have been
aware that the modification it offered . . . was not effective,” id. at 1114 (emphasis
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 26 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
MICHAEL A. REHFELDT, No. 23-15240
Plaintiff-Appellant, D.C. No. 1:20-cv-00181-KJM
v. MEMORANDUM* U.S. DEPARTMENT OF HOMELAND SECURITY; ALEJANDRO N. MAYORKAS, Secretary of Homeland Security (substituted for former Acting Secretary of Homeland Security Chad Wolf, pursuant to FRCP 25(d)),
Defendants-Appellees,
and
CHAD F. WOLF,
Defendant.
Appeal from the United States District Court for the District of Hawaii Kenneth J. Mansfield, Magistrate Judge, Presiding
Argued and Submitted February 14, 2024 University of Hawaii Manoa
Before: PAEZ, M. SMITH, and KOH, Circuit Judges.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Michael Rehfeldt appeals the district court’s order granting summary
judgment in favor of the Department of Homeland Security and Alejandro
Mayorkas (collectively, “Defendants”). We have jurisdiction pursuant to 28 U.S.C.
§ 1291. Because the parties are familiar with the facts, we do not recount them
here, except as necessary to provide context to our ruling. We affirm in part and
reverse in part.
1. The district court did not abuse its discretion by deeming Defendants’
statement of undisputed facts admitted for purposes of summary judgment. The
District Court’s Local Rule 56.1(g) provides that “material facts set forth in the
movant’s concise statement will be deemed admitted unless controverted by a
separate concise statement of the opposing party.” Local Rules of Practice for the
United States District Court for the District of Hawaii (Aug. 26, 2019). Local rules
have the “force of law” and are binding upon the parties and the court. Martel v.
County of Los Angeles, 21 F.3d 940, 946–47 (9th Cir. 1994). Rehfeldt admits that
he failed to controvert almost all of Defendants’ factual assertions. The district
court thus did not abuse its discretion by following its own rules and deeming
Defendants’ factual statements admitted.
2. Even treating Defendants’ statements of fact as admitted, however, the
district court erred in granting Defendants summary judgment on Rehfeldt’s Count
II for violation of the Rehabilitation Act, 29 U.S.C. § 701, et seq.
2 Under the Act, “[o]nce an employee requests an accommodation . . . , the
employer must engage in an interactive process with the employee to determine the
appropriate reasonable accommodation.” U.S. E.E.O.C. v. UPS Supply Chain Sols.,
620 F.3d 1103, 1110 (9th Cir. 2010) (quoting Zivkovic v. S. Cal. Edison Co., 302
F.3d 1080, 1089 (9th Cir. 2002)).1 This 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.” Id. (quoting Zivkovic,
302 F.3d at 1089). Rehfeldt asserts that at least three genuine disputes of material
fact exist as to whether Defendants engaged in this interactive process in good
faith, specifically with respect to: (1) his request to work remotely; (2) his request
under the Voluntary Leave Transfer Program (“VLTP”); and (3) his relocation to
the Annex. We consider each in turn.
First, Rehfeldt has failed to raise a genuine dispute of material fact regarding
whether Defendants improperly rejected his request for remote work because the
evidence, even viewed in the light most favorable to Rehfeldt, shows that
Defendants engaged in the interactive process in response to this request. Indeed,
although a request to work remotely can in some cases be considered reasonable,
1 “In determining whether a federal agency has violated the Rehabilitation Act, the standards under Title I of the Americans with Disabilities Act (‘ADA’) apply.” McLean v. Runyon, 222 F.3d 1150, 1153 (9th Cir. 2000) (citation omitted).
3 see Humphrey v. Mem’l Hosps. Ass’n, 239 F.3d 1128, 1137 (9th Cir. 2001),
Defendants indicated that implementing such a request would pose an “undue
burden” given that Rehfeldt’s job required handling sensitive information. More
importantly, Defendants offered Rehfeldt at least one practical alternative,
specifically that he take various forms of leave, which this court has considered a
reasonable accommodation under the Act. See id. at 1136. Defendants thus
satisfied their obligation, and the district court properly granted summary judgment
on this issue.
Second, Rehfeldt has raised a genuine dispute of material fact regarding
whether his VLTP request would have constituted a reasonable accommodation.
As part of the interactive process, the employee has the initial burden of showing
that a reasonable accommodation is possible. See Buckingham v. United States,
998 F.2d 735, 740 (9th Cir. 1993). Once the employee has done so, the employer
cannot “avoid reasonable accommodation absent a showing of undue hardship.”
Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1113 (9th Cir. 2000), vacated on other
grounds sub nom. US Airways, Inc. v. Barnett, 535 U.S. 391 (2002).
Defendants argue that Rehfeldt was ineligible for VLTP on the basis that he
had not yet exhausted his other leave sources at the time of his application. But
Rehfeldt has presented evidence that such a requirement was not consistently
enforced. Thus, a genuine dispute of material fact exists as to whether VLTP
4 would have constituted a reasonable accommodation that Defendants were
required to consider. UPS Supply Chain Sols., 620 F.3d 1103 (quoting Zivkovic,
302 F.3d at 1089). Summary judgment was therefore improper.
Finally, Rehfeldt has raised a genuine dispute of material fact regarding
whether his relocation to the Annex was an effective accommodation. Under the
Act, “[a]n appropriate reasonable accommodation must be effective.” Barnett, 228
F.3d at 1115; see also UPS Supply Chain Sols., 620 F.3d at 1110 (“Ineffective
modifications . . . are not accommodations.”). And though the interactive process
required by the Act “does not require an employer to be clairvoyant regarding the
effectiveness of a modification,” UPS Supply Chain Sols., 620 F.3d at 1112, an
employee need only show that their employer “was aware or should have been
aware that the modification it offered . . . was not effective,” id. at 1114 (emphasis
added).
Although Rehfeldt failed to dispute Defendants’ statement that “[w]hile
working out of the Annex, [he] never informed management that his asthma
worsened,” Rehfeldt has nonetheless presented evidence from which a reasonable
trier of fact could find that Defendants should have been aware that his relocation
to the Annex was an ineffective accommodation. As we said in UPS Supply Chain
Sols., “[w]here . . . there is a disputed issue of fact regarding whether the
modifications the employer selected were effective, and where the trier of fact
5 could reasonably conclude that the employer was aware or should have been aware
that those modifications were not effective, summary judgment is not appropriate.”
620 F.3d at 1114. That is the situation here, and summary judgment on that issue
was therefore improper.
In short, Rehfeldt has presented evidence that Defendants “foreclosed at
least one potentially reasonable accommodation” by denying his VLTP
application, Barnett, 228 F.3d at 1117, and failed to offer “an accommodation that
[was] reasonable and effective” by relocating him to the Annex, UPS Supply Chain
Sols., 620 F.3d at 1111. Viewing all evidence in the light most favorable to
Rehfeldt, a reasonable trier of fact could determine that Defendants did not engage
in the interactive process in good faith. For these reasons, summary judgment was
not warranted. See Barnett, 228 F.3d at 1116.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Each side shall bear their own costs on appeal.