Nicholas Conlan v. Costco

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 26, 2022
• Docket: 21-35517
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 26 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

NICHOLAS CONLAN, No. 21-35517

Plaintiff-Appellant, D.C. No. 6:18-cv-00094-JTJ

v. MEMORANDUM* COSTCO WHOLESALE CORPORATION,

Defendant-Appellee.

Appeal from the United States District Court for the District of Montana John T. Johnston, Magistrate Judge, Presiding

Argued and Submitted August 9, 2022 Seattle, Washington

Before: CHRISTEN, LEE, and FORREST, Circuit Judges.

Nicholas Conlan sued his former employer, Costco, for failing to

accommodate his alleged disability by not allowing him to bring his dog, Teddy, to

Costco’s warehouse and for discriminating and retaliating against him.1 He appeals

(1) the district court’s order granting in part Costco’s motion in limine, which

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 1 The parties dispute whether Teddy is a service dog or an emotional support dog, but that question does not affect our analysis of Conlan’s claims. prohibited Conlan from raising an additional claim under the Montana Human

Rights Act (MHRA), Mont. Code. Ann. §§ 49-2-101 et seq., and (2) the district

court’s dismissal after a bench trial of his claims under the Americans with

Disabilities Act (ADA), 42 U.S.C. §§ 12101 et seq., and the MHRA. We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

Though we normally review a district court’s ruling on a motion in limine for

an abuse of discretion, Desire, LLC v. Manna Textiles, Inc., 986 F.3d 1253, 1259

(9th Cir. 2021), we review the district court’s ruling on Costco’s motion in limine

de novo because it was “a dispositive ruling akin to a dismissal under Fed. R. Civ.

P. 12(b)(6),” Dubner v. City and Cty. of San Francisco, 266 F.3d 959, 968 (9th Cir.

2001). “In reviewing a judgment following a bench trial, [we] review[] the district

court’s findings of fact for clear error and its legal conclusions de novo.” Id. at 964.

1. Conlan sought to bring an MHRA claim against Costco arising from his

visit as a customer to Costco’s tire shop in March 2017: He brought along his dog,

Teddy, to the tire shop but one of the employees insisted that the dog must stay

outside (the “Tire Shop Claim”). Under Montana Law, Conlan is barred from

bringing the Tire Shop Claim because he did not first exhaust his administrative

remedies before the Montana Human Rights Bureau (MHRB). See Borges v.

Missoula Cty. Sheriff’s Office, 415 P.3d 976, 981 (Mont. 2018) (“A party claiming

discrimination may not file a claim in district court without first obtaining an

2 adjudication of that claim by the [M]HRB.”); see Mont. Code. Ann. §§

49-2-504(7)(b)(ii), -512(1).

Conlan argues that Costco waived its exhaustion argument. But even

assuming Costco’s exhaustion argument can be waived, Conlan has presented no

evidence that Costco knew that he intended to bring the Tire Shop Claim and

unreasonably delayed in bringing its motion in limine. See Edwards v. Cascade

Cty., 212 P.3d 289, 295 (Mont. 2009) (“[T]he party asserting waiver must

demonstrate the other party’s knowledge of the existing right, acts inconsistent with

that right, and resulting prejudice to the party asserting waiver.”). As such, we affirm

the district court's order granting in part Costco’s motion in limine.

2. We affirm the district court’s judgment dismissing Conlan’s ADA and

MHRA claims.2

Conlan argues that Costco failed to engage in the interactive process in good

faith because Costco ended the interactive process when Conlan refused to authorize

a third-party accommodation consultant to contact his medical provider. See Garcia

v. Salvation Army, 918 F.3d 997, 1010 (9th Cir. 2019) (“An ‘interactive process’ is

required upon a request for an accommodation.”) (citation omitted). But Costco

ended the interactive process because Conlan’s primary care provider released him

2 The MHRA is modeled after the ADA, and Montana looks to federal law in interpreting the MHRA. Pannoni v. Bd. of Trs., 90 P.3d 438, 444 (Mont. 2004).

3 to return to work without restrictions. See id. (“A doctor’s release to work without

restrictions” ends the employer’s duty to engage in further interactive process.).3

Conlan next argues that Costco failed to (1) show that allowance of an

accommodation in the form of a service dog would cause undue hardship, and (2)

proffer any alternative accommodations. See id. at 1009–10 (An employer must

accommodate an employee’s “known physical or mental limitations” unless the

“employer can demonstrate that the accommodation would impose an undue

hardship.” (quoting U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 396 (2002))). But

an employer that rejects an employee’s requested accommodation must show “undue

hardship” or offer “alternative accommodations” only if the employer was required

to provide an accommodation in the first place. Id. Costco was not required to

provide any accommodation because Conlan was cleared to work without

restrictions. Id.

Lastly, Conlan argues that Costco’s proffered reason for firing him—that he

violated Costco’s leave of absence policy—was pretextual, and that the true reason

was Conlan’s disability and request for a service dog accommodation. See Smith v.

Clark Cty. Sch. Dist., 727 F.3d 950, 955 (9th Cir. 2013) (To state a prima facie case

3 Conlan argues that his primary care provider’s note was ambiguous about whether he could return to work, and that Costco should have conferred with the provider. The district court did not clearly err in finding that the note was not ambiguous and that it authorized his return.

4 of employment discrimination and retaliation, the employee must show, among other

things, that he “was discriminated against because of [his] disability.”). The district

court did not clearly err in finding that Conlan was terminated for violating Costco’s

leave of absence policy. Conlan thus failed to state a prima facie case for

employment discrimination and retaliation. See Garcia, 918 F.3d at 1009–10

(holding that an employer may lawfully terminate an employee who is cleared to

work without restrictions but fails to return in violation of the employer’s leave of

absence policy).

AFFIRMED.