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UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CAROLYN HUMPHREY,
No. 98-15404
Plaintiff-Appellant,
D.C. No.
v. CV-96-06025-REC
MEMORIAL HOSPITALS ASSOCIATION,
OPINION
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Robert E. Coyle, District Judge, Presiding
Argued and Submitted
February 10, 1999--San Francisco, California
Submission vacated December 8, 1999
Resubmitted February 7, 2001
Filed February 13, 2001
Before: Phyllis A. Kravitch,1 Stephen Reinhardt, and
Thomas G. Nelson, Circuit Judges.
Opinion by Judge Reinhardt
_________________________________________________________________
1 The Honorable Phyllis A. Kravitch, Senior Judge, United States Court
of Appeals for the Eleventh Circuit, sitting by designation.
COUNSEL
Jerry Budin, Modesto, California, for the plaintiff-appellant.
John Edward Fischer, James Francis Curran, and Rhonda
Canby of Diepenbrock, Wulff, Plant, and Hannegan LLP,
Sacramento, California, for the defendant-appellee.
_________________________________________________________________
OPINION
REINHARDT, Circuit Judge:
Carolyn Humphrey brought suit against her former
employer, Memorial Hospitals Association (MHA), under the
Americans with Disabilities Act (ADA) and its California
counterpart, the Fair Employment and Housing Act (FEHA)
for failure to reasonably accommodate her disability and
wrongful termination. We reverse the district court's grant of
summary judgment in favor of MHA.
I. BACKGROUND
Humphrey worked for MHA as a medical transcriptionist
from 1986 until her termination in 1995. At the time of her
termination, she was earning approximately $11.00 per hour.
Throughout her employment at MHA, Humphrey's transcrip-
1908
tion performance was excellent and consistently exceeded
MHA's standards for speed, accuracy, and productivity.
In 1989, Humphrey began to experience problems getting
to work on time, or at all. She engaged in a series of obsessive
rituals that hindered her ability to arrive at work on time. She
felt compelled to rinse her hair for up to an hour, and if, after
brushing her hair, it didn't "feel right," she would return to
the shower to wash it again. This process of washing and pre-
paring her hair could take up to three hours. She would also
feel compelled to dress very slowly, to repeatedly check and
recheck for papers she needed, and to pull out strands of her
hair and examine them closely because she felt as though
something was crawling on her scalp. She testified that these
obsessive thoughts and rituals made it very difficult to get to
work on time. Once she realized that she was late, she would
panic and become embarrassed, making it even more difficult
for her to leave her house and get to work.
Due to Humphrey's difficulties with tardiness and absen-
teeism, MHA gave her a "Level I" disciplinary warning in
June 1994. This warning required her to call her supervisor
before the time she was due to be at work if she was going
to be late or absent. Humphrey's mental obsessions and pecu-
liar rituals only grew worse after the warning, and her atten-
dance record did not improve; nor did her call-in rate. In
December 1994, she received a "Level III" warning, which
documented four tardy days and one unreported absence over
a two week period.
When MHA gave Humphrey the Level III warning, she
was told that she was expected to schedule and keep counsel-
ing appointments with the Employee Assistance Program
(EAP). This counseling consisted of "tips," helpful hints such
as getting up earlier and laying out clothes the night before.
Humphrey found this somewhat helpful and attended several
sessions, but her efforts to follow the "tips " were not particu-
larly successful. After watching an episode of the Oprah Win-
1909
frey show devoted to attention deficit disorder, Humphrey
began to suspect that her debilitating symptoms and inability
to get to work on time might be related to a medical condi-
tion. In May, 1995, she asked MHA's EAP nurse, Elizabeth
Pierson, if she could see a psychiatrist for an evaluation. Pier-
son agreed, and set up an appointment for a diagnostic evalua-
tion and psychological testing with Dr. John Jacisin. MHA
paid for the consultation through its EAP program.
Humphrey first saw Dr. Jacisin on May 12, 1995. Dr. Jaci-
sin diagnosed her with obsessive compulsive disorder (OCD).2
He sent a letter explaining that diagnosis to Pierson on May
18, 1995, telling her that Humphrey's OCD "is directly con-
tributing to her problems with lateness." In addition, the letter
stated:
I believe that we can treat this, although, the treat-
ment may take a while. I do believe that she would
qualify under the Americans with Disability Act,
although, I would like to see her continue to work,
but if it is proving to be a major personnel problem,
she may have to take some time off until we can get
the symptoms better under control.
Humphrey sought treatment from Dr. Jacisin and from a psy-
chologist, Dr. Litynsky. Dr. Litynsky, like Dr. Jacisin, diag-
nosed Humphrey with OCD and concluded that it was
probable that the OCD caused her absenteeism and tardiness.
_________________________________________________________________
2 Individuals with obsessive compulsive disorder experience obsessions
or compulsions or both. See American Psychiatric Ass'n, Diagnostic and
Statistical Manual of Mental Disorders 417 (4th ed. 1994). Obsessions are
recurring or persistent thoughts, images, or impulses that, rather than
being voluntarily produced, seem to invade a person's consciousness
despite his attempts to ignore, suppress, or control them. See id. at 418.
Compulsions are urges or impulses to commit repetitive acts that are
apparently meaningless, stereotyped, or ritualistic. See id. The disorder
was recently made famous by Jack Nicholson's Oscar-winning portrayal
of a man with OCD in the 1998 film As Good As it Gets.
1910
Humphrey had difficulty paying for the necessary services,
however, because her insurance did not cover the treatment.
In addition, due to the severe symptoms of her ailment, Hum-
phrey had great difficulty showing up for appointments. Both
doctors considered her inconsistency in treatment in 1995 and
1996 to be the result of the disorder as well as her financial
problems.3
On June 7, 1995, Humphrey met with Pierson and Hum-
phrey's supervisor, Carol Evans-Bowlsby, to review Dr. Jaci-
sin's letter. What happened at this meeting is disputed. MHA
contends that Humphrey rejected the leave of absence alluded
to in the doctor's letter. Humphrey says that she was never
offered a leave of absence and never rejected one. Instead, she
testified that "they asked if I would like to keep working. And
I said yes." She did not remember anyone using the term
"leave of absence." (As it turns out, this factual dispute is not
material to our ruling on appeal.)
Humphrey did want to try to keep working, if possible, and
Pierson told her that she could have an "accommodation" that
would allow her to do so. Pierson suggested, as an accommo-
dation, that Humphrey have a friend or family member drive
her to work every day. Humphrey said that this suggestion
would not be feasible. Pierson next offered a flexible start-
time arrangement in which Humphrey could begin work any
time within a 24 hour period on days on which she was sched-
uled to work. Pierson asked her to think about whether this
would help her and whether any other accommodation would
be desirable, and asked her to submit any additional requests
for accommodation in writing. A few days later, Humphrey
sent Pierson a letter accepting the flexible start time arrange-
_________________________________________________________________
3 Dr. Litynsky testified, "[h]er obsessive compulsive disorder was cer-
tainly the primary factor in her inability to appear for most of her missed
sessions with me. If the same set of events were occurring while she was
employed, I would believe that it was very likely a major factor in her
nonappearance at work."
1911
ment, and saying that she "would still do my best to be at my
work station at the earliest possible hour."
Nevertheless, Humphrey continued to miss work. It is dis-
puted whether Humphrey's supervisor warned her about her
conduct during the remainder of that summer. It is undis-
puted, however, that no one from MHA broached the subject
of modifying the accommodation during that period. On Sep-
tember 18, 1995, Humphrey, upset about her continuing prob-
lems, sent Pierson an e-mail message asking for a new
accommodation because the then-current one seemed to be
failing:
Dear Liz:
It has now been a few months since I sent you a
memo regarding how my disability would best be
accommodated as far as my job performance. I have
since come to the conclusion that I would be able to
put in considerable more hours [sic] and be much
more productive if I were able to work from my
home as a lot of other transcriptionists are doing. . . .
I think this would be the ideal way to accommodate
my diagnosed disability.
MHA allows certain medical transcriptionists to work out of
their homes. Dr. Jacisin was not asked by anyone at MHA for
his opinion on the work-at-home request. After Humphrey's
termination, Jacisin said that working at home "might accom-
modate some of her work issues" but might be "anti-
therapeutic." He testified, in his deposition in this lawsuit, that
he felt working at home was an accommodation which would
have been worth trying because it was necessary for Hum-
phrey to earn money and increase her self-confidence.
In any event, Humphrey's request was summarily denied.
In an e-mail message, Pierson denied her request for work-at-
home accommodation on the ground of Humphrey's disci-
plinary warnings for tardiness and absenteeism. Pierson did
1912
not suggest an alternative accommodation or indicate that
MHA would be receptive to reassessing its arrangements to
accommodate Humphrey in light of the apparent failure of the
flexible work schedule arrangement. Instead, she wrote:
It is departmental policy that if you are involved in
any disciplinary action you are ineligible to be a
home based transcriptionist as per the AT HOME
ARRANGEMENT FOR TRANSCRIPTIONISTS.
Since you are currently involved in the discipline
process, you are ineligible for being based at home.
During our 6/7/95 meeting, you requested to be
accommodated for your disability by having a flexi-
ble start time, stating that you would have no prob-
lems staying for a full shift once you arrived. You
were given this flexible start time accommodation
which continues to remain in effect. As for your pro-
ductivity, your manager indicated that you consis-
tently meet your hourly productivity requirements
when you are at work.
Pierson's comment regarding Humphrey's productivity at
work was typical of Humphrey's performance evaluations,
which recognized her high level of competence but were tar-
nished by the problems caused by her disability. For example,
in her annual performance review completed on September
26, 1995-- approximately two weeks before she was termi-
nated -- Humphrey exceeded expectations in minutes typed
per shift and in errors per 130 lines checked. She was one of
the only transcriptionists who could accurately transcribe the
comments of a particular group of physicians. Her review
noted that this was "a very difficult task as the majority of
physicians speak with very pronounced accents. You have
done this very well as you have learned the accents and have
become familiar with the styles." She was regarded as very
cordial, considerate, honest, and tactful.
1913
Humphrey's evaluation indicates that were it not for her
ailment, she would have been a model employee. The only
negative ratings she received were in relation to the problems
caused by the interference of her symptoms and the accom-
modation of flexible start time.4 Her evaluation stated that her
recent unscheduled absences were "unacceptable, " and
advised that correcting her attendance problem was "a major
goal for the upcoming year." During a meeting with her
supervisor, Julie Vieira, to discuss her evaluation, Humphrey
again raised the issue of working at home, but was told that
she would have to be free of attendance problems for a year
before she could be considered for an at-home transcriptionist
position. Neither Humphrey nor her supervisor suggested a
medical leave of absence at this meeting.
Humphrey was absent two more times, and on October 10,
1995, Vieira fired her. MHA's stated reason for the termina-
tion was Humphrey's history of tardiness and absenteeism.
Humphrey testified that after learning of her termination, she
went across the hall to Pierson's office and asked if she might
take a leave of absence instead of lose her job, but that Pier-
son refused and told her that she had had her chance at
accommodation. Pierson denies that Humphrey requested a
leave of absence on the day of her discharge. MHA concedes
that it would have granted the request if Humphrey had asked
for a leave of absence prior to her termination, as MHA had
a policy of permitting medical leaves of absence to employees
with disabilities.
On September 6, 1996, Humphrey brought suit against
MHA for violation of the ADA and the FEHA.5 The district
_________________________________________________________________
4 For example, she was criticized because she was "not able to learn and
transcribe Pathology because of your inconsistent work hours. You are
scheduled to start work at 10:00 a.m. but do not come to work before 4:00
p.m. which is after the deadline FOR Pathology." However, at this time
Humphrey had been given permission to arrive at work after 4:00 p.m. in
accordance with the flexible start-time accommodation.
5 Humphrey also brought claims for violation of the Family and Medical
Leave Act, 29 U.S.C. SS 2601-2654, and the California Family Rights
Act, Cal. Govt. Code S 12945.2. However, Humphrey does not appeal the
adverse judgment on those claims.
1914
court granted MHA's motion for summary judgment on the
theory that MHA had satisfied its duty to reasonably accom-
modate Humphrey's disability. The district court found it
"dispositive . . . that Plaintiff was initially offered a leave of
absence and rejected it, and then failed to request a leave of
absence subsequently." Humphrey appeals the judgment
entered in favor of MHA.
II. DISCUSSION
[1] Humphrey contends that MHA violated the ADA and
the FEHA by failing to reasonably accommodate her disabil-
ity and by terminating her because of that disability. The ADA6
provides that "[n]o covered entity shall discriminate against a
qualified individual with a disability because of the disability
. . . ." 42 U.S.C. S12112(a). Title I of the ADA insures full
opportunities for people with disabilities in the workplace by
requiring reasonable accommodation of employees' disabili-
ties by their employers. Under the ADA, the term "discrimi-
nate" is defined as including "not making reasonable
accommodations to the known physical or mental limitations
of an otherwise qualified individual with a disability who is
an applicant or employee, unless such covered entity can
demonstrate that the accommodation would impose an undue
hardship on the operation of the business of such covered
entity." 42 U.S.C. S12112(b)(5)(A). To prevail on a claim of
unlawful discharge under the ADA, the plaintiff must estab-
lish that he is a qualified individual with a disability and that
the employer terminated him because of his disability. Cooper
v. Neiman Marcus Group, 125 F.3d 786, 790 (1997). The
ADA defines a "qualified individual with a disability" as "an
_________________________________________________________________
6 Because the FEHA provisions relating to disability discrimination are
based on the ADA, decisions interpreting federal anti-discrimination laws
are relevant in interpreting the FEHA's similar provisions. See Brundage
v. Hahn, 57 Cal. App. 4th 228, 235 (Cal. Ct. App. 1997). We analyze
Humphrey's state and federal disability claims together, relying on federal
authority in the absence of contrary or differing state law. See id.
1915
individual with a disability who, with or without reasonable
accommodation, can perform the essential functions of the
employment position that such individual holds or desires."
42 U.S.C. S 12111(8). A "disability" is "a physical or mental
impairment that substantially limits one or more of the major
life activities of such individual."7 42 U.S.C. S12102(2)(a).
In ADA cases, as in all appeals, we review a grant of sum-
mary judgment de novo. McAlindin v. County of San Diego,
192 F.3d 1226, 1232 (9th Cir.), amended 201 F.3d 1211, and
cert. denied, 120 S.Ct. 2689 (2000).
A. QUALIFIED INDIVIDUAL WITH A DISABILITY
Because the district court granted summary judgment to
MHA on the ground that it reasonably accommodated Hum-
phrey, the court did not address whether Humphrey is a quali-
fied individual with a disability. However, MHA asks us to
uphold the judgment on the alternate ground that Humphrey
is not disabled and that she is not a "qualified individual" for
purposes of the ADA. Because we reject MHA's reasonable
accommodation argument, we consider its alternate ground
here.
Most of the issues relating to Humphrey's status as a quali-
fied individual with a disability are legal. The primary factual
dispute arises out of an equivocal report and declaration by
defense expert Dr. Weissman. The report raises some question
regarding the testimony of Drs. Jacisin and Litynsky that
Humphrey suffered from OCD and that her condition caused
her attendance problems. Dr. Weissman declares that
although Humphrey may have suffered from OCD with psy-
chotic features while employed by MHA, it is also possible
_________________________________________________________________
7 The statute's definition also includes "having a record of such an
impairment," 42 U.S.C. S12102(2)(B), or "being regarded as having such
an impairment," 42 U.S.C. S 12102(2)(C). Humphrey argues only that she
has an actual impairment under S12102(2)(A).
1916
that she was suffering from brief psychotic delusional epi-
sodes rather than OCD. He continues in his report:"It is a
mistake to assume that the only explanation for her tardiness
(or of anyone's) was obsessive compulsive disorder. There
are lots of other problems that can result in chronic tardiness.
And alternate sources of stress were operating in 1994 in Ms.
Humphrey's life." If, as Dr. Weissman suggests, Humphrey's
difficulties getting to work may not have stemmed from OCD
but may have been attributable to other "problems," it is pos-
sible that Humphrey might not be a qualified individual with
a disability under the ADA. Because Humphrey does not seek
summary judgment, we need not determine whether the con-
clusory and somewhat ambiguous statements of Dr. Weiss-
man are sufficient to create a triable issue of fact as to
whether she is a qualified individual with a disability (OCD
or otherwise). Rather, for purposes of this appeal, we will
assume without deciding that MHA has presented sufficient
evidence to survive summary judgment on this point.
MHA also argues that Humphrey is not disabled for pur-
poses of the ADA because she is not substantially limited in
one or more of her major life activities. The EEOC regula-
tions provide that "caring for oneself" is a major life activity.
29 C.F.R. S 1630.2(i). According to the EEOC,"[a]n impair-
ment substantially limits an individual's ability to care for
him/herself if, due to the impairment, an individual is signifi-
cantly restricted as compared to the average person in the gen-
eral population in performing basic activities such as getting
up in the morning, bathing, dressing, and preparing and
obtaining food." EEOC Enforcement Guidance: Psychiatric
Disabilities and the ADA, FEP (BNA) 405:7461, at 7467
(March 25, 1997) [hereinafter EEOC Enforcement Guidance
on Psychiatric Disabilities].8
_________________________________________________________________
8 By contrast, the legislative definition of a "mental disability" in the
FEHA does not require that the disability substantially limit a major life
activity, but merely that it "limit" a major life activity. See Cal. Govt.
Code S 12926(1). Because a triable issue of fact exists as to whether Hum-
phrey is disabled under the ADA, a fortiori an issue of fact also exists as
to whether she is disabled under the FEHA.
1917
[2] The facts are undisputed with regard to Humphrey's
ability to care for herself.9 The testimony of Humphrey and
Dr. Jacisin, her mental health provider, reflects that it took
Humphrey significantly more time than the average person to
accomplish the basic tasks of washing and dressing. Accord-
ing to Humphrey, the process of washing and brushing her
hair alone could take several hours, and she at times would
prepare for work from eight o'clock in the morning until five
or six o'clock in the evening. Dr. Jacisin testified that, on one
OCD screening test, she was rated as taking three times as
long as most people to shower, wash her hands, dress, and
handle or cook food. MHA argues that even if Humphrey's
ritualistic behaviors caused her to take more time to complete
basic activities than the average person, she is not disabled
under the ADA because her OCD did not prevent her from
accomplishing those activities. As the Supreme Court has
noted, however, "[t]he [Americans with Disabilities] Act
addresses substantial limitations on major life activities, not
utter inabilities." Bragdon v. Abbott, 524 U.S. 624, 641
(1998). An impairment "substantially limits" one's ability to
carry out a major life activity if, because of the impairment,
the individual is "[s]ignificantly restricted as to the condition,
manner, or duration under which an individual can perform a
major life activity as compared to the condition, manner, or
duration under which the average person in the general popu-
lation can perform that same major life activity. " 29 C.F.R.
S 1630.2(j). An individual who has a physical or mental
impairment that causes him to take inordinately more time
than others to complete a major life activity is substantially
limited as to that activity under the ADA. There is no dispute
on the record before us that Humphrey falls within that cate-
_________________________________________________________________
9 We need not address whether Humphrey is substantially limited in
working. See McAlindin, 192 F.3d at 1233; EEOC Enforcement Guidance
on Psychiatric Disabilities, at 7463 ("The first question is whether an indi-
vidual is substantially limited in a major life activity other than working
(e.g. sleeping, concentrating, caring for oneself). Working should be ana-
lyzed only if no other major life activity is substantially limited by an
impairment.").
1918
gory. Accordingly, in determining whether Humphrey is dis-
abled for purposes of the ADA, the question is not whether
she is substantially limited in her ability to care for herself,
but whether she had OCD, and, if so, whether her OCD was
the cause of her limitation.
[3] MHA next argues that Humphrey was not "qualified"
for the medical transcriptionist position within the meaning of
the ADA. A qualified individual is "an individual with a dis-
ability who, with or without reasonable accommodation, can
perform the essential functions of the employment position
that such individual holds or desires." 42 U.S.C.S12111(8).
It is undisputed that Humphrey had the skills, training, and
experience to transcribe medical records. MHA contends that
Humphrey's inability to show up for work and to notify her
employer when she would be absent renders her not otherwise
qualified under the ADA10 because regular and predictable
attendance is an essential function of the position. 11 However,
Humphrey is a "qualified individual" under the ADA so long
as she is able to perform the essential functions of her job
"with or without reasonable accommodation." 42 U.S.C.
S12111(8). Either of two potential reasonable accommoda-
tions might have made it possible for Humphrey to perform
the essential functions of her job: granting her a leave of
absence or allowing her to become a "home-based transcrip-
tionist."
_________________________________________________________________
10 MHA also argues that Humphrey's inability to perform her job duties
extended beyond her attendance difficulties. However, the only negative
comments on her evaluations are related to attendance. For example, she
was unable to learn and transcribe pathology because she was unable to
arrive at work consistently before the pathology department's four o'clock
deadline. Her poor scores for attendance and attendance-related activities
and policies resulted in a "below average" overall rating.
11 Humphrey concedes that regular and predictable job performance is
an essential function of the MHA medical transcriptionist position. We
note that although excessive or unscheduled absences may prevent an
employee from performing the essential functions of his job and thereby
render him not otherwise qualified for purposes of the ADA, regular and
predictable attendance is not per se an essential function of all jobs.
1919
A leave of absence for medical treatment may be a reason-
able accommodation under the ADA. See 29 C.F.R. 1630 app.
S1630.2(o). We have held that where a leave of absence
would reasonably accommodate an employee's disability and
permit him, upon his return, to perform the essential functions
of the job, that employee is otherwise qualified under the
ADA. See Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243,
1247 (9th Cir. 1999).
[4] MHA contends that Humphrey is not otherwise quali-
fied because the results of the leave of absence were specula-
tive. However, the ADA does not require an employee to
show that a leave of absence is certain or even likely to be
successful to prove that it is a reasonable accommodation. In
Kimbro v. Atlantic Richfield Co., 889 F.2d 869 (9th Cir.),
cert. denied, 498 U.S. 814 (1990), we held that a leave of
absence was a reasonable accommodation for an employee
whose cluster migraine headaches, a condition for which there
was no specific treatment program, caused him sporadically
to miss work.12 We noted that
[w]hile it is altogether possible that Kimbro's
migraine episodes may have recurred upon his return
to work following a leave of absence, such a possi-
bility does not foreclose a finding of liability for fail-
ure to accommodate Kimbro's migraines . . . . As
long as a reasonable accommodation available to the
employer could have plausibly enabled a handi-
capped employee to adequately perform his job, an
employer is liable for failing to attempt that accom-
modation.
_________________________________________________________________
12 Kimbro involved the Washington state handicap laws, which are simi-
lar to the ADA and the FEHA. See Schmidt v. Safeway, Inc., 864 F.Supp.
991, 996 (D.Or. 1994); Prilliman v. United Air Lines, Inc., 53 Cal. App.
4th 935, 949 n.3 (Cal. Ct. App. 1997); see also Sanders v. Arnesan Prod.
Inc., 91 F.3d 1351, 1354 (9th Cir.), cert. denied, 520 U.S. 1116 (1997)
(relying on Kimbro when construing the ADA).
1920
Id. at 879. The statements in Dr. Jacisin's letter that Hum-
phrey's condition was treatable and that "she may have to
take some time off until we can get the symptoms better under
control" are sufficient to satisfy the minimal requirement that
a leave of absence could plausibly have enabled Humphrey
adequately to perform her job.13 We discuss in Section C
below MHA's contention that it was not required to offer
Humphrey a leave of absence or other accommodation unless
she specifically requested it.14
[5] There is another reasonable accommodation that could
also serve to render Humphrey a "qualified individual." There
is at least a triable issue of fact as to whether Humphrey
would have been able to perform the essential duties of her
job with the accommodation of a work-at-home position.
Working at home is a reasonable accommodation when the
essential functions of the position can be performed at home
and a work-at-home arrangement would not cause undue
hardship for the employer. EEOC Enforcement Guidance:
Reasonable Accommodation and Undue Hardship Under the
Americans with Disabilities Act, FEP (BNA) 405:7601, at
7626 (March 1, 1999) [hereinafter EEOC Enforcement Guid-
ance on Reasonable Accommodation].15 Humphrey does not
_________________________________________________________________
13 Of course, the requirement to grant a leave where there are plausible
reasons to believe that it would accommodate the employee's disability
can not be repeatedly invoked, thus permitting an unqualified employee to
avoid termination by requesting a leave of absence each time he is about
to be fired. As we noted in Kimbro, the fact that a prior leave was granted
and was unsuccessful may be a relevant consideration in determining
whether additional leave would be a reasonable accommodation. Kimbro,
889 F.2d at 879 n.10.
14 We also note that an employer need not make an accommodation,
including granting a leave of absence, if it poses an undue hardship. 42
U.S.C. S 12112(b)(5)(A). However, MHA makes no such contention here.
15 Courts have taken differing approaches toward working at home as an
accommodation. Compare Vande Zande v. Wisconsin Dept. of Admin., 44
F.3d 538, 544-45 (7th Cir. 1995) (holding that an employer is not required
to allow disabled workers to work at home except in extraordinary circum-
1921
dispute that regular and predictable performance of the job is
an essential part of the transcriptionist position because many
of the medical records must be transcribed within twenty-four
hours, and frequent and unscheduled absences would prevent
the department from meeting its deadlines. However, physical
attendance at the MHA offices is not an essential job duty; in
fact, the record makes it clear that MHA permits some of its
medical transcriptionists to work at home.
[6] MHA denied Humphrey's application for a work-at-
home position because of her disciplinary record, which con-
sisted of Level I and Level III warnings for tardiness and
absenteeism prior to her diagnosis of OCD. It would be incon-
sistent with the purposes of the ADA to permit an employer
to deny an otherwise reasonable accommodation because of
past disciplinary action taken due to the disability sought to
be accommodated. Thus, Humphrey's disciplinary record
does not constitute an appropriate basis for denying her a
work-at-home accommodation.
Although Dr. Jacisin was less optimistic about Humphrey's
working at home than he was about a leave of absence, Hum-
phrey has submitted sufficient evidence to raise an issue of
fact as to whether she could perform the job with the accom-
modation of a work-at-home position. She testified that her
ailment interfered primarily with her ability to leave her house
in the morning. Dr. Jacisin stated that working at home
"might accommodate some of her work issues," and later tes-
tified that he felt working at home would have been worth try-
ing because "her OCD really didn't interfere necessarily with
her ability to do the work, that is to actually do the typing and
_________________________________________________________________
stances), with Langon v. Department of Health and Human Servs., 959
F.2d 1053, 1060-61 (D.C. Cir. 1992) (holding that an employer must con-
sider requested accommodation of working at home), cited with approval
in Buckingham v. United States, 998 F.2d 735, 740 (9th Cir. 1993). We
see no reason not to follow the approach taken by the EEOC in its
Enforcement Guidance.
1922
transcription." A reasonable jury could conclude that if Hum-
phrey was relieved of the stress of having to leave the house,
she could perform her transcriptionist duties and thus was
"qualified" under the ADA.
[7] Accordingly, we hold that MHA is not entitled to sum-
mary judgment on the issue of whether Humphrey is a "quali-
fied individual with a disability" for purposes of the ADA.
B. BREAKDOWN OF THE INTERACTIVE PROCESS
[8] The remaining question with respect to the duty to
accommodate is a purely a legal one: was MHA obligated to
suggest a leave of absence or to explore other alternatives in
response to Humphrey's request for a work-at-home position,
or was it Humphrey's burden to make an express request for
a leave of absence before she was terminated? We conclude,
as a matter of law, that (assuming Humphrey was a qualified
individual with a disability) MHA had an affirmative duty
under the ADA to explore further methods of accommodation
before terminating Humphrey.
[9] Once an employer becomes aware of the need for
accommodation, that employer has a mandatory obligation
under the ADA to engage in an interactive process with the
employee to identify and implement appropriate reasonable
accommodations. Barnett v. U.S. Air, 228 F.3d 1105, 1114
(9th Cir. 2000). "An appropriate reasonable accommodation
must be effective, in enabling the employee to perform the
duties of the position." Id. at 1115. The interactive process
requires communication and good-faith exploration of possi-
ble accommodations between employers and individual
employees, and neither side can delay or obstruct the process.
Id. at 1114-15; Beck v. University of Wis. Bd. of Regents, 75
F.3d 1130, 1135 (7th Cir. 1996) ("A party that obstructs or
delays the interactive process is not acting in good faith. A
party that fails to communicate, by way of initiation or
response, may also be acting in bad faith."). Employers, who
1923
fail to engage in the interactive process in good faith, face lia-
bility for the remedies imposed by the statute if a reasonable
accommodation would have been possible. Barnett , 228 F.3d
at 1116.
[10] Moreover, we have held that the duty to accommodate
"is a `continuing' duty that is `not exhausted by one effort.' "
McAlindin, 192 F.3d at 1237. The EEOC Enforcement Guid-
ance notes that "an employer must consider each request for
reasonable accommodation," and that "[i]f a reasonable
accommodation turns out to be ineffective and the employee
with a disability remains unable to perform an essential func-
tion, the employer must consider whether there would be an
alternative reasonable accommodation that would not pose an
undue hardship." EEOC Enforcement Guidance on Reason-
able Accommodation, at 7625. Thus, the employer's obliga-
tion to engage in the interactive process extends beyond the
first attempt at accommodation and continues when the
employee asks for a different accommodation or where the
employer is aware that the initial accommodation is failing
and further accommodation is needed. This rule fosters the
framework of cooperative problem-solving contemplated by
the ADA, by encouraging employers to seek to find accom-
modations that really work, and by avoiding the creation of a
perverse incentive for employees to request the most drastic
and burdensome accommodation possible out of fear that a
lesser accommodation might be ineffective.
When MHA received Dr. Jacisin's letter diagnosing Hum-
phrey with OCD, MHA properly initiated the interactive pro-
cess by arranging a meeting to discuss possible
accommodations. Dr. Jacisin's statement "I would like to see
her continue to work, but if it is proving to be a major person-
nel problem, she may have to take some time off until we can
get the symptoms better under control" alerted MHA to the
possibility that any initial arrangement that kept Humphrey on
the job might not be effective and that a leave of absence
might ultimately be necessary to accommodate her disability.
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In fact, it is MHA's position, disputed by Humphrey, that
MHA explicitly offered her a leave at the June 7 meeting, and
that it was Humphrey who decided that flexible scheduling
was the better choice. Even if we assume that Humphrey
turned down the leave of absence in June in favor of a flexible
start-time arrangement, her attempt to perform her job func-
tions by means of a less drastic accommodation does not for-
feit her right to a more substantial one upon the failure of the
initial effort.
[11] By the time of her annual performance review in Sep-
tember, it was abundantly clear to MHA that the flexible start
time accommodation was not succeeding; Humphrey had
accumulated six unreported absences in each of the months of
August and September, and her evaluation stated that her
attendance record was "unacceptable." At this point, MHA
had a duty to explore further arrangements to reasonably
accommodate Humphrey's disability.
[12] Humphrey also realized that the accommodation was
not working, and requested a work at home position. When it
received that request, MHA could have either granted it or
initiated discussions with Humphrey regarding other alterna-
tives.16 Instead, MHA denied her request without suggesting
any alternative solutions, or exploring with her the possibility
of other accommodations. Rather than fulfill its obligation to
engage in a cooperative dialogue with Humphrey, Pierson's e-
mail suggested that the matter was closed: "During our 6/7/95
meeting, you requested to be accommodated for your disabil-
ity by having a flexible start time, stating that you would have
_________________________________________________________________
16 As we have discussed, working at home is a reasonable accommoda-
tion when the essential functions of the position can be performed at home
and a work-at-home arrangement would not cause an undue hardship for
the employer. EEOC Enforcement Guidance on Reasonable Accommoda-
tion, at 7626. Although MHA may have violated the ADA by refusing her
request for a work at home accommodation, we do not reach this issue
because on appeal Humphrey argues only the failure to grant a leave of
absence as a violation of the duty to accommodate.
1925
no problems staying for a full shift once you arrived. You
were given this flexible start time accommodation which con-
tinues to remain in effect." We held in Barnett that an
employer fails to engage in the interactive process as a matter
of law where it rejects the employee's proposed accommoda-
tions by letter and offers no practical alternatives. See Barnett,
228 F.3d at 1116-17. Similarly, MHA's rejection of Hum-
phrey's work-at-home request and its failure to explore with
Humphrey the possibility of other accommodations, once it
was aware that the initial arrangement was not effective, con-
stitutes a violation of its duty regarding the mandatory inter-
active process.
[13] Given MHA's failure to engage in the interactive pro-
cess, liability is appropriate if a reasonable accommodation
without undue hardship to the employer would otherwise have
been possible. See id. at 1117. As we have already discussed,
a leave of absence was a reasonable accommodation for Hum-
phrey's disability.17 Ordinarily, whether an accommodation
would pose an undue hardship on the employer is a factual
question. Here, however, MHA has conceded that granting a
leave of absence would not have posed an undue hardship.
MHA had a policy of granting leaves to disabled employees,
and admits that it would have given Humphrey a leave had
she asked for one at any time before her termination. MHA's
ultimate position, therefore, is simply that Humphrey is not
entitled to a leave of absence because she failed to ask for one
before she was fired. As we have explained, however, MHA
was under a continuing duty to offer a reasonable accommo-
dation. Accordingly, we hold as a matter of law (again,
assuming that Humphrey is a qualified individual with a dis-
ability) that MHA violated the ADA's reasonable accommo-
dation requirement.
_________________________________________________________________
17 See Section IIA supra .
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C. REASON FOR TERMINATION
[14] Unlike a simple failure to accommodate claim, an
unlawful discharge claim requires a showing that the
employer terminated the employee because of his disability.
See Cooper v. Neiman Marcus Group, 125 F.3d 786, 790
(1997). Often the two claims, are, from a practical standpoint,
the same. For the consequence of the failure to accommodate
is, as here, frequently an unlawful termination. In this case,
MHA's stated reason for Humphrey's termination was absen-
teeism and tardiness. For purposes of the ADA, with a few
exceptions,18 conduct resulting from a disability is considered
to be part of the disability, rather than a separate basis for ter-
mination. See Hartog v. Wasatch Academy, 129 F.3d 1076,
1086 (10th Cir. 1997). The link between the disability and ter-
mination is particularly strong where it is the employer's fail-
ure to reasonably accommodate a known disability that leads
_________________________________________________________________
18 The text of the ADA authorizes discharges for misconduct or inade-
quate performance that may be caused by a "disability" in only one cate-
gory of cases--alcoholism and illegal drug use:"[An employer] may hold
an employee who engages in the illegal use of drugs or who is an alcoholic
to the same qualification standards for employment or job performance
and behavior that such entity holds other employees, even if any unsatis-
factory performance or behavior is related to the drug use or alcoholism
of such employee." 42 U.S.C. S 12114(c)(4). In line with this provision,
we have applied a distinction between disability-caused conduct and dis-
ability itself as a cause for termination only in cases involving illegal drug
use or alcoholism. See Newland v. Dalton, 81 F.3d 904, 906 (9th Cir.
1995) (holding that an employer may fire an employee who went on a
"drunken rampage" and attempted to fire an assault rifle at individuals in
a bar); Collings v. Longview Fibre Co., 63 F.3d 828, 832 (9th Cir.), cert.
denied, 516 U.S. 1048 (1996) (employees discharged for drug-related mis-
conduct at the workplace); see also Hartog, 129 F.3d at 1085-88 (review-
ing cases in all circuits and finding that "the disability vs. disability-caused
conduct dichotomy seems to be unique to alcoholism and drugs."). In
Newland, however, we suggested that an additional exception might apply
in the case of "egregious and criminal conduct " regardless of whether the
disability is alcohol- or drug-related. See Newland, 81 F.3d at 906
("Attempting to fire a weapon at individuals is the kind of egregious and
criminal conduct which employees are responsible for regardless of any
disability."). Any such exception would not be applicable to Humphrey's
absences or tardiness.
1927
to discharge for performance inadequacies resulting from that
disability. See Borkowski v. Valley Central Sch. Dist., 63 F.3d
131, 143 (2d Cir. 1995). In Kimbro, for example, we found
that there was a sufficient causal connection between the
employee's disability and termination where the employee
was discharged for excessive absenteeism caused by
migraine-related absences. See Kimbro, 889 F.2d at 875. Sim-
ilarly, Humphrey has presented sufficient evidence to create
a triable issue of fact as to whether her attendance problems
were caused by OCD. In sum, a jury could reasonably find the
requisite causal link between a disability of OCD and Hum-
phrey's absenteeism and conclude that MHA fired Humphrey
because of her disability.
III. CONCLUSION
For the foregoing reasons, the district court's grant of sum-
mary judgment to MHA on Humphrey's ADA and FEHA
claims is hereby REVERSED and the case is REMANDED
for proceedings consistent with this opinion.
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