Snead v. Metropolitan Property & Casualty Insurance Company

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

EMILY SNEAD,
Plaintiff-Appellant,
No. 99-35071
v.
D.C. No.
METROPOLITAN PROPERTY &

98-163 GMK
CASUALTY INSURANCE COMPANY, a
Delaware Corporation; JAMES OPINION
MCINTOSH,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Oregon
Garr M. King, District Judge, Presiding

Argued and Submitted
May 4, 2000--Portland, Oregon

Filed January 23, 2001

Before: Donald P. Lay,* A. Wallace Tashima, and
M. Margaret McKeown, Circuit Judges.

Opinion by Judge Tashima; Dissent by Judge Lay

_________________________________________________________________

*The Honorable Donald P. Lay, Senior United States Circuit Judge for
the Eighth Circuit, sitting by designation.

985

COUNSEL

Scott N. Hunt, Esq., Busse & Hunt, Portland, Oregon, for the
plaintiff-appellant.

989
Andrew M. Altschul, Esq., Stoel Rives, Portland, Oregon, for
the defendants-appellees.

_________________________________________________________________

OPINION

TASHIMA, Circuit Judge:

The underlying question we must decide in this employ-
ment discrimination case arising under Oregon law is whether
plaintiff Emily Snead ("Snead") adduced sufficient evidence
to survive her employer's, Metropolitan Property and Casu-
alty Insurance Company's ("Met"), motion for summary judg-
ment. We must first decide, however, the threshold question
of whether this action is governed by Oregon's special sum-
mary judgment procedure applicable to employment discrimi-
nation cases or by federal summary judgment rules and
procedures.

I. BACKGROUND

Met is engaged in the sale of home and auto insurance
through agents known as Property and Casualty Specialists
("PCS"). These agents, in turn, report to Market Development
Managers ("MDM"). Each MDM is responsible for managing
15 to 20 PCS agents. In the Portland market, Met originally
hired two MDMs: Snead and Bill Todd. Both reported to
James McIntosh, Vice President of the PCS organization.
While Snead handled the "Portland North" territory, Todd
was assigned to the "Portland South" territory. By 1993,
Snead and Todd together managed 33 PCS agents.

In early 1995, Snead was being stalked by one of Met's for-
mer employees. She claimed that through the use of the mail
and telephone, that former employee harassed and threatened
her. She also claims that Met handled the matter poorly,
offered little help, and even made light of the situation.1 As
_________________________________________________________________
1 It is undisputed, however, that Met paid to have caller ID installed on
her office telephone, installed a security system in her office, paid a body-

990
a result, she claimed that she suffered emotional distress,
which was diagnosed as "Post-Traumatic Stress Disorder and
Depression."

After being so diagnosed, Snead sought and was granted a
three-month leave of absence, which included a salary contin-
uation under Met's short-term disability program. Snead ulti-
mately extended her request to six months, which was also
approved. When Met received Snead's request for an exten-
sion, Todd was assigned responsibility for Snead's territory.
For administrative convenience, this change was reflected on
paper by combining Portland North and Portland South into
one market. Although Gary Max, a PCS employee, filled in
for Snead, no one was ever hired to replace Snead.

After her short-term disability leave expired, Snead did not
return to work. Instead, she went on long-term disability
leave. In mid-1996, more than a year after Snead first went on
disability leave, Met sent her a letter stating that her long-term
disability benefits would end in December 1996, unless she
provided medical documentation that she was still disabled.
The decision to terminate her long-term disability benefits
was partially based on the opinion of Dr. Robert Slack, a
_________________________________________________________________
guard, and allowed her to bring a concealed handgun to work. Also, once
the stalker was identified as a former employee (David James) whom
Snead had terminated, Met not only paid for Snead's defense in a lawsuit
brought by James against Met and Snead, but also paid to prosecute
Snead's counterclaim, which resulted in a restraining order against James
and a money settlement to Snead. Coincidentally, the James lawsuit was
settled exactly as Snead began her disability leave in March 1995. Never-
theless, Snead filed a lawsuit against Met in September 1995, claiming
intentional infliction of severe emotional distress and reckless infliction of
emotional distress. Snead alleged that Met failed to take appropriate action
in response to the stalking and death threats that she suffered. The district
court dismissed Snead's suit against Met, which was affirmed by the Ninth
Circuit. See Snead v. Metropolitan Prop. & Cas. Ins. Co., 909 F. Supp.
775 (D. Or. 1996), aff'd, 116 F.3d 486 (9th Cir. 1997) (Table), 1997 WL
345606.

991
Board certified psychiatrist, who opined that, given the stalk-
ing incident, "[h]er refusal to return to work is understand-
able," but that she could still function in other work settings.
Snead failed to provide the requested additional information,
and thus her disability benefits ended on December 31, 1996.
She subsequently faxed McIntosh a medical release stating
that she could return to work without any restrictions on Feb-
ruary 24, 1997.

Snead expected to be reinstated in her old position. Met's
Resources Handbook for Managers states that: "An employee
returning from disability will be placed in the job they occu-
pied prior to the disability. An employee returning from a
leave of absence may be placed in the same job occupied
before the leave of absence or in a reasonably equivalent posi-
tion at the same salary and rate of pay." But, while Snead was
on leave, the staff of Met's Portland office decreased from 33
employees in 1993 to 10 in January 1997. Consequently, Met
no longer needed two MDMs in the Portland market (or in
any market in the United States). As a result, in mid-January
1997, McIntosh called Snead to tell her that her MDM posi-
tion no longer existed and to discuss her future in the com-
pany. Snead and McIntosh disagree about what was said in
that conversation. According to Snead, they discussed the
possibility that Snead could be moved to another job (local or
otherwise), but that she needed specifics about the job and the
compensation. On the other hand, McIntosh testified that
Snead indicated to him that she was not mobile and did not
want to be a PCS agent.

On January 21, 1997, McIntosh sent Michael Dineen, a
Human Resources representative, an e-mail about his conver-
sation with Snead, stating:

I told her that the PCS program has undergone major
changes and that there is not a MDM position avail-
able in Portland at this time. I did inform her that
there might be a MDM position in another market

992
and asked her if she is mobile. She informed me that
she is not. She also has no intentions of becoming a
PCS. She basically expected a comparable position
at the same salary rate, with bonuses, AND be able
to work out of her home. I again stated that we have
no desire to grow the market to require additional man-
agement.2

McIntosh and Bill Moore, Vice President of Sales, also dis-
cussed Snead's position and the need to eliminate one of the
Portland MDMs. According to Snead, however, this was the
first time that McIntosh discussed that need with Moore (his
superior) who until the time of Snead's call, had expected her
to return to her old position.3 Nonetheless, Moore agreed with
McIntosh's decision to reduce the number of MDMs in the
Portland market.

On February 14, 1997, McIntosh wrote to Snead to confirm
their earlier conversation and to confirm that the position that
she held as MDM was determined to be "excess."4 The letter
stated that Snead could explore a PCS agent position super-
vised by Todd. Snead would be paid an unspecified "base sal-
ary as well as commission." McIntosh's letter also stated that
as of February 24, 1997, her status as an "excess employee"
made her eligible for "an enhanced separation allowance."5
_________________________________________________________________
2 Snead testified that following their various conversations, McIntosh
never gave her the specific information she requested regarding other posi-
tions and that he seemed "disinterested." She also testified that Dineen
was "condescending" and "demeaning."
3 Yet, in a March 21, 1997, letter, Met's counsel stated that "the decision
[to eliminate Snead's position] was made in July 1995, while Ms. Snead
was on long term disability leave, to manage the Portland market with
only one MDM." Although this representation somewhat contradicts
Moore's statements, it is consistent with the administrative change that
combined the Portland North and Portland South territories into one mar-
ket.
4 "Excess" is Met's internal term indicating that the position would be
eliminated.
5 The district court noted that"[o]n February 24, 1997, Met put Snead
back on its payroll while discussions continued about possible positions."

993
Snead's attorney responded on February 20, 1997, stating that
Snead was not interested in a demotion to a PCS agent posi-
tion. Consequently, on March 19, 1997, the Director of
Human Resources wrote to Snead to inform her that her dis-
continuance would be processed effective March 31, 1997,
unless Snead communicated to Met that she was interested in
a PCS agent position or in relocating. Pending a response, the
Human Resources Department drafted a "Job Related Turn-
around Document" on March 19, 1997, listing March 31 as
the effective date of Snead's termination.

On March 31, 1997, Snead's attorney requested further
information regarding the specifics of the PCS agent position.
Upon receipt of the request for information, however, Met's
attorney stated that "[b]y the time [he ] received [Snead's
attorney's] letter of March 31, 1997 it was too late to forward
it to [Met] for receipt the same day." Accordingly, Snead's
termination took place as scheduled on March 31, 1997. Less
than two months later, Met wrote Todd and all the PCS agents
in Portland to inform them that they would be laid off as the
result of a decision to close the Portland office. Met ulti-
mately terminated Todd in August 1997. There is still one
PCS agent in Portland who reports to a MDM in Seattle.

As a result of her termination, Snead commenced this state
law disability discrimination case in Oregon state court,
claiming violation of S 659.436 of the Oregon Revised Stat-
utes. The case was timely removed to federal court on the
basis of diversity of citizenship jurisdiction. The district court
granted defendants' motion for summary judgment because
Snead failed to establish that she was terminated because of
her disability. Snead timely appeals from the judgment. We
have jurisdiction under 28 U.S.C. S 1291, and we affirm.

II. STANDARD OF REVIEW

We review the district court's grant of summary judgment
de novo. See Botosan v. Paul McNally Realty, 216 F.3d 827,

994
830 (9th Cir. 2000). In so doing, we apply the same standard
used by the district court under Federal Rule of Civil Proce-
dure 56(c)--namely, viewing the evidence in the light most
favorable to the non-moving party, we must decide whether
there are any genuine issues of material fact and whether the
district court correctly applied the relevant substantive law.
See Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (en
banc).

III. DISCUSSION

A. The Prima Facie Case

[1] Section 659.436 provides that"[i]t is an unlawful
employment practice for any employer to . . . discharge from
employment . . . an otherwise qualified person [because such
person] is a disabled person." Or. Rev. Stat.S 659.436 (1999).
The standard for establishing a prima facie case of discrimina-
tion under Oregon law is identical to that used in federal law.
See Henderson v. Jantzen, Inc., 719 P.2d 1322, 1323-24 (Or.
Ct. App. 1986); see also Or. Rev. Stat.S 659.449 (providing
that Oregon's discrimination laws "shall be construed to the
extent possible in a manner that is consistent with any similar
provision of the federal Americans with Disabilities Act of
1990 [`ADA'], as amended"). Snead alleges that she was ter-
minated because of her disability. Therefore, to establish a
prima facie case of discrimination under the ADA she must
show that she: (1) is disabled; (2) is qualified; and (3) suffered
an adverse employment action because of her disability. See
Sanders v. Arneson Prods., Inc., 91 F.3d 1351, 1353 (9th Cir.
1996). It is undisputed that Snead was qualified for the job.
What is disputed, however, is whether she was disabled and
whether she was terminated because of her disability.6
_________________________________________________________________
6 We are puzzled by the dissent's insistence that this is a reasonable
accommodation/interactive process case despite its recognition that
"Snead did not ask Met to alter her job in a way that would accommodate
her disability. Snead was prepared to return to her MDM position without

995
1. Disability

[2] Under Oregon law, a "disabled person" is defined as a
person who: (1) "has a physical or mental impairment which
substantially limits one or more major life activities;" (2) "has
a record of such an impairment;" or (3) "is regarded as having
such an impairment." Or. Rev. Stat. S 659.400(1).

a. Physical or Mental Impairment

Under the Oregon regulations, "physical and mental
impairments" include "any mental or psychological disorder,
such as mental retardation, organic brain syndrome, emotional
or mental illness, and specific learning disabilities." Or.
Admin. R. 839-006-0205(3) (2000). Within the statutory
scheme, "substantially limits" means that"[t]he impairment
renders the person unable to perform a major life activity that
the average person in the general population can perform."7
Or. Rev. Stat. S 659.400(2)(d)(A). The definition of "major
life activity" includes employment. Id.S 659.400(2)(a).

[3] In Oregon, stress and depression can be considered
mental impairments. See Wheeler v. Marathon Printing, Inc.,
974 P.2d 207, 212-13 (Or. Ct. App. 1998). The same is true
_________________________________________________________________
any modifications to the job as it was before she went on leave. In other
words, she simply asked Met for her old job back. " Slip op. at 1012. As
we recently noted in Barnett v. U.S. Air, Inc. , 228 F.3d 1105, 1112 (9th
Cir. 2000) (en banc), "[t]he interactive process is triggered either by a
request for accommodation by a disabled employee or by the employer's
recognition of the need for such an accommodation. " Here, neither party
has raised reasonable accommodation as an issue and both have treated
this as a disparate treatment case.
7 A second definition of "substantially limits" is that "[t]he impairment
significantly restricts the condition, manner or duration under which an
individual can perform a particular major life activity as compared to the
condition, manner or duration under which the average person in the gen-
eral population can perform the same major life activity." Or. Rev. Stat.
S 659.400(2)(d)(B).

996
under the ADA. In Holihan v. Lucky Stores, Inc. , 87 F.3d 362,
365 n.3 (9th Cir. 1996), this court explained that "stress and
depression could be covered by the ADA. An EEOC Techni-
cal Assistance Manual on the ADA provides that " `stress"
and "depression" are conditions that may or may not be con-
sidered impairments, depending on whether these conditions
result from a documented physiological or mental disorder.' "
Id. (quoting EEOC Technical Assistance Manual on the
Employment Provisions (Title I) of the Americans With Dis-
abilities Act S 2.1(a)(i), at II-3 (1992)); see Mustafa v. Clark
County Sch. Dist., 157 F.3d 1169, 1174-75 (9th Cir. 1998)
(per curiam) (finding that plaintiff could be substantially lim-
ited in his ability to work because he suffered from depres-
sion, post-traumatic stress disorder, and panic attacks).8

[4] In the case at bench, the evidence relating to Snead's
condition is sufficient to raise an issue of fact that she suf-
fered from a documented physiological or mental disorder.
First, her own physician wrote that her stress and depression
rendered her "medically" disabled. Furthermore, an indepen-
dent medical examiner, Dr. Charles Bellville, found that
Snead suffered from "Post-Traumatic Stress Disorder and
Depression."

b. Substantially Limiting

[5] Because we conclude that Snead has raised an issue of
fact as to whether she has a recognized impairment, we now
_________________________________________________________________
8 At least four other circuits agree that depression can constitute a mental
impairment under the ADA. See Krocka v. City of Chicago, 203 F.3d 507,
512 (7th Cir. 2000) ("Because [employee's] severe depression is a medical
condition diagnosed by a health professional, it qualifies as an impairment
under the ADA."); Criado v. IBM Corp., 145 F.3d 437, 442 (1st Cir. 1998)
("depression and anxiety compounded by Attention Deficit Disorder sub-
stantially limited plaintiff's ability to work"); Prichard v. Southern Co.
Servs., 92 F.3d 1130, 1132 (11th Cir. 1996) ("[d]epression has been held
to constitute a mental impairment"); Doe v. Region 13 Mental Health-
Mental Retardation Comm'n, 704 F.2d 1402, 1408 (5th Cir. 1983) (same).

997
examine the extent to which it was substantially limiting. The
Oregon Court of Appeals has stated that its "opinion in
Quinn[ v. Southern Pac. Transp. Co., 711 P.2d 139 (Or. Ct.
App. 1985)] makes it clear that `employment,' as used in [Or.
Rev. Stat. S] 659.400(2)(a), does not mean employment in
general." Winnett v. City of Portland, 847 P.2d 902, 907 (Or.
Ct. App. 1993) (" `A person, for example, who has obtained
a graduate degree in chemistry, and is then turned down for
a chemist's job because of an impairment, is not likely to be
heartened by the news that he can still be a streetcar conduc-
tor, an attorney or a forest ranger.' " (quoting E.E. Black, Ltd.
v. Marshall, 497 F. Supp. 1088, 1099 (D. Haw. 1980)). The
court also rejected, however, the notion that " `employment'
meant . . . `the employment of one's choice with[a particular
employer].' " Id. (quoting E.E. Black, 497 F. Supp. at 1099).
Rather, the court chose a sensible compromise and found that
an impairment is substantially limiting if it substantially limits
the performance of the work involved. See id. ("We are . . .
persuaded that the meaning of the term `employment' in [Or.
Rev. Stat. S] 659.400(2)(a) is not at either end of the spec-
trum."). Here, the work involved is that of sales manager.

[6] Snead has at least raised a genuine issue of material fact
that she was limited in her ability to perform the work
involved. Her doctor wrote that she needed leave because she
was "medically disabled by stress and depression, " not that
she was limited only from doing her MDM job at Met. Fur-
ther, Snead's leave of absence was not temporary, and it even
had to be extended. As a result, she did not work at all for
nearly two years. Cf. Hardie v. Legacy Health Sys., 6 P.3d
531, 540 (Or. Ct. App. 2000) (" `Short term physical or men-
tal impairments leaving no residual disability or impairment
are not disabilities.' ") (quoting Or. Admin. R. 839-06-240(1)
(1996))).

It is not fatal that Dr. Robert Slack, a Board certified psy-
chiatrist, opined that, given the stalking incident,"[h]er
refusal to return to work is understandable," but that she could

998
still function in other work settings. Even if Snead could
return to work two years into her recovery, the record still
shows that she had been "medically disabled" and had even
been suicidal. Therefore, there is a genuine issue of fact about
whether Snead's mental condition had prevented her from
working as a sales manager, at least while she was on disabil-
ity leave. See Or. Rev. Stat. S 659.400(2)(d)(A).

c. Record of Impairment

[7] Under Oregon law, Snead would have "a record of such
impairment" if she "has a history of . . . such an impairment."
Marconi v. Guaradian Mgmt. Corp., 945 P.2d 86, 89 n.1 (Or.
Ct. Ap. 1997) (quoting Or. Rev. Stat. S 659.400(2)(b)). The
ADA definition is virtually identical. See 29 C.F.R.
S 1630.2(k) (2000) (stating that a person has a record of an
impairment if that person "has a history of . . . a mental or
physical impairment that substantially limits one or more
major life activities"); see Burch v. Coca-Cola Co., 119 F.3d
305, 321 (5th Cir. 1997). The many physicians' notes and var-
ious letters in the record, combined with Snead's prolonged
leave, create at least a genuine issue of fact regarding a record
of Snead's impairment. See Prichard, 92 F.3d at 1134 (paid
and unpaid disability leave establish evidence of a record of
being impaired).

In conclusion, the evidence shows that Snead has estab-
lished a genuine issue of material fact that she has a record of
disability--and thus is considered disabled underS 659.400.
Therefore, under Oregon law, it is not necessary for Snead to
also establish either that she is currently impaired or that she
is regarded as having that impairment. See Or. Rev. Stat.
S 659.400(1).

2. Adverse Employment Action Because of Her
Disability

[8] It is beyond challenge that a person's termination is
considered an adverse employment action and defendants do

999
not argue otherwise. What is in dispute, however, is whether
that adverse action was taken because of Snead's disability.
In Oregon, "[e]vidence that permits an inference of discrimi-
nation" is sufficient for a plaintiff to make a prima facie case
that she was discriminated against because of her disability.
See Henderson, 719 P.2d at 1324.

[9] Here, Snead has met her burden of providing evidence
which "permits an inference of discrimination. " Id. Although
not strong evidence, conflicting information regarding the
timing of the need to eliminate Snead's position creates an
inference that her disability may have been a factor in Met's
decision. According to McIntosh, when he spoke to Snead in
January 1997, he told her that there was no MDM position
available in Portland. Yet, when Moore was asked if it had
been his intention up until the point of Snead's call to return
her to her old position, he answered that it had been. Further,
a March 21, 1997, letter from Met's attorney to Snead's attor-
ney, states that "the decision [to eliminate Snead's position]
was made in July 1995, while Ms. Snead was on long term
disability leave, to manage the Portland market with only one
MDM"--thereby contradicting Moore's testimony. In conclu-
sion, the timing of Snead's termination, coupled with her dis-
ability history and her communications with Met, provide
sufficient evidence to raise a genuine issue of material fact as
to the third element of her prima facie case of discrimination.

Snead would have us end our analysis at this point. She
argues that Met was not entitled to summary judgment
because, in order to defeat a defendant's motion for summary
judgment, Oregon summary judgment law in employment
cases requires only that an employee/plaintiff adduce a prima
facie case of discrimination. See Henderson, 719 P.2d at
1324; Callan v. Confederation of Or. Sch. Adm'rs , 717 P.2d
1252, 1254 n.3 (Ct. App. Or. 1986). Met, on the other hand,
argues that this court should follow the burden-shifting analy-
sis set forth in McDonnell Douglas Corp. v. Green, 411 U.S.

1000
792, 802-04 (1973). Which rule we apply depends on the
nature of the federal rule.

B. Beyond the Prima Facie Case: Burden-Shifting

1. Federal Procedural Law Governs

[10] "Federal diversity jurisdiction provides an alternative
forum for the adjudication of state-created rights, but it does
not carry with it generation of rules of substantive law."
Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 426
(1996). Thus, "[u]nder the Erie doctrine, federal courts sitting
in diversity apply state substantive law and federal procedural
law." Id. at 427; see Hanna v. Plumer , 380 U.S. 460, 465
(1965); Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). As
stated by the Supreme court, however, "[c]lassification of a
law as `substantive' or `procedural' for Erie purposes is
sometimes a challenging endeavor." Gasperini , 518 U.S. at
427. This is one of those times.

[11] We are not without guidance, however. In order to
assist us in this endeavor, the Supreme Court has "pro-
pounded an `outcome determination' test." Id. Under that test,
we first ask the following question: " `[D]oes it significantly
affect the result of a litigation for a federal court to disregard
a law of a state that would be controlling in an action upon
the same claim by the same parties in a State court?' " Id.
(quoting Guaranty Trust Co. v. York, 326 U.S. 99, 109
(1945)). Additionally, whether such disregard would affect
the outcome of an action "must be guided by `the twin aims
of the Erie rule: discouragement of forum-shopping and
avoidance of inequitable administration of the laws.' "
Gasperini, 518 U.S. at 428 (1996) (quoting Hanna, 380 U.S.
at 468). Accordingly, we should not apply this test so as to
"produce a decision favoring application of the state rule
unless one of these aims will be furthered." Chamberlain v.
Giampapa, 210 F.3d 154, 159 (3rd Cir. 2000).

1001
Guided by these principles, we address the question
whether Oregon's "prima facie only" rule is outcome determi-
native in this sense: "Would `application of the [standard] . . .
have so important an effect upon the fortunes of one or both
of the litigants that failure to [apply] it would [unfairly dis-
criminate against citizens of the forum state, or ] be likely to
cause a plaintiff to choose the federal court'?" Gasperini, 518
U.S. at 428 (quoting Hanna, 380 U.S. at 468 n.9) (alterations
in the original). If the state law is indeed outcome determina-
tive in light of these aims, we must then decide whether an
overriding federal interest justifies application of federal law.
See Byrd v. Blue Ridge Rural Elec. Coop., Inc., 356 U.S. 525,
537-39 (1958).9

a. The Oregon Rule Is Not Outcome Determinative

[12] Utilization of the Oregon summary judgment rule--as
opposed to the three-part McDonnell Douglas analysis--is
not outcome determinative. The only significant difference
between the state and federal regimes is when a case that fails
_________________________________________________________________
9 No circuit has squarely decided whether a state's application of an
alternative to the McDonnell Douglas burden-shifting scheme is "proce-
dural" or "substantive" under the Erie doctrine. See Bourbon v. K-Mart
Corp., 223 F.3d 469, 474 (7th Cir. 2000) (Posner, J., concurring). This is
so because, in most cases, the evidentiary scheme at summary judgment
is identical under both state and federal law. See, e.g., Perry v. Woodward,
199 F.3d 1126, 1141-42 (10th Cir. 1999) (New Mexico); Norville v. Staten
Island Univ. Hosp., 196 F.3d 89, 95 (2d Cir. 1999) (New York); Carpen-
ter v. Federal Nat'l Mortgage Ass'n, 165 F.3d 69, 72 (D.C. Cir. 1999)
(District of Columbia); Mullin v. Raytheon Co. , 164 F.3d 696, 699 (1st
Cir. 1999) (Massachusetts); King v. Herbert J. Thomas Mem'l Hosp., 159
F.3d 192, 198 (4th Cir. 1998) (West Virginia); Lee v. Minnesota, Dep't of
Commerce, 157 F.3d 1130, 1133 (8th Cir. 1998) (Minnesota); Nichols v.
Lewis Grocer, 138 F.3d 563, 565-66 (5th Cir. 1998) (Louisiana); Olson v.
General Elec. Astrospace, 101 F.3d 947, 956 (3d Cir. 1996) (New Jersey);
Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796, 802 n.8 (6th Cir.
1994) (Kentucky)). But see, Bourbon , 223 F.3d at 474 (Posner, J., concur-
ring) ("Illinois expressly rejected application of the McDonnell Douglas
to Illinois retaliatory discharge cases").

1002
one of the McDonnell Douglas components will be dismissed.
For example, a plaintiff whose case could not survive sum-
mary judgment on the third McDonnell Douglas component
in federal court for lack of evidence would only delay the
inevitable by proceeding in state court where, on the same
record, a nonsuit or JNOV would be in order at the close of
the plaintiff's case. In either case, the court would ultimately
apply the same substantive law, employ the same reasoning,
and produce the same result. Only the timing of the case's dis-
missal (along with the added expense of bringing the case to
trial) would differ.

[13] Furthermore, the application of the Oregon scheme in
such cases would not further either of Erie's twin aims: dis-
couragement of forum-shopping and avoidance of inequitable
administration of the laws. See Gasperini, 518 U.S. at 428.
Although one could speculate, for example, that filing in an
Oregon court may be advantageous to employment discrimi-
nation plaintiffs because a higher percentage of such claims
would go to trial, neither of the "twins aims of Erie" is truly
implicated. Hanna, 380 U.S. at 468. The identical outcomes
produced through the state and federal systems make it
improbable that increased forum-shopping will occur. Like-
wise, because no significant advantage would ultimately be
gained by filing in state, as opposed to federal court, it is
unlikely that litigants will encounter significantly different
results under the two regimes. Therefore, we conclude that, in
light of Erie's twin aims, application of the Oregon summary
judgment rule in employment discrimination cases would not
be outcome determinative if applied by federal courts sitting
in diversity.

b. Overriding Federal Interests

Additionally, overriding federal interests require applica-
tion of federal law in this case. See Byrd, 356 U.S. at 537.
Making a prima facie showing of employment discrimination
is not an onerous burden. See McDonnell Douglas , 411 U.S.

1003
at 802; Chuang v. University of Cal. Davis, Bd. of Trustees,
225 F.3d 1115, 1124 (9th Cir. 2000) ("The requisite degree of
proof necessary to establish a prima facie case for Title VII
. . . on summary judgment is minimal and does not even need
to rise to the level of a preponderance of the evidence.")
(quoting Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir.
1994))). If federal courts sitting in diversity were compelled
to follow Callan and Henderson, nearly every case of
employment discrimination filed under Oregon law would go
to trial, providing an increased burden on the district courts'
already crowded trial dockets. This burden is too high a price
to pay for an outcome that would be identical if all three
McDonnell Douglas components were applied at the sum-
mary judgment stage rather than at trial.

Furthermore, "[t]he federal system is an independent sys-
tem for administering justice to litigants who properly invoke
its jurisdiction. An essential characteristic of that system is the
manner in which, in civil common-law actions, it distributes
trial functions between judge and jury." Byrd , 356 U.S. at
537. The policy of uniform enforcement of state-created
rights and obligations "cannot in every case exact compliance
with a state rule--not bound up with rights and obligations--
which disrupts the federal system of allocating functions
between judge and jury." Id. at 537-38.

c. Other Considerations

Our conclusion that the McDonnell Douglas burden-
shifting scheme is federal procedural law comports with the
Supreme Court's own pronouncements. In St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 521 (1993), the Court stated
that "the McDonnell Douglas presumption is a procedural
device, designed only to establish an order of proof and pro-
duction." Id. (emphasis in the original). Although this state-
ment was not essential to the Court's ultimate decision, it is
probative of the Court's view on this subject. The Court has
reiterated such view in at least one subsequent case. In Reeves

1004
v. Sanderson Plumbing Products, Inc., 120 S.Ct. 2097 (2000),
the Court stated that "McDonnell Douglas and subsequent
decisions have `established an allocation of the burden of pro-
duction and an order for the presentation of proof in . . .
discriminatory-treatment cases.' " Id. at 2106 (quoting St.
Mary's, 509 U.S. at 506) (ellipsis in the original).

Snead, however, argues that our decision in Messick v.
Horizon Industries Inc., 62 F.3d 1227 (9th Cir. 1995), man-
dates the application of the Oregon rule. In Messick, we were
asked to resolve whether summary judgment should be
granted to the defendants on federal and Oregon discrimina-
tion claims. Id. at 1229. After holding that a grant of summary
judgment for the defendants on the plaintiff's federal claim
was erroneous because the plaintiff had presented sufficient
evidence to raise an issue of fact as to her prima facie case
and as to pretext, we recognized that Oregon law only
required a plaintiff to adduce evidence of a prima facie case
in order to defeat summary judgment. See id. at 1232. There-
fore, without further analysis, we indicated that because the
plaintiff "established a prima facie case of discrimination [on
the federal claim], summary judgment on the Oregon Age
Discrimination Act claim was also inappropriate. " Id.

This language does not, however, bind us here. In Messick,
we never analyzed application of the Oregon rule in federal
court. Rather, as stated above, we assumed it did, and because
we had previously found an issue of fact as to pretext on the
federal claim, we did not engage in a separate analysis under
state law. See id. In short, because, by deciding the summary
judgment motion on the federal claim in the plaintiff's favor,
we also necessarily decided the state claim in the same way,
any discussion regarding application of Oregon's summary
judgment law to the plaintiff's state law claim was dicta--the
issue had already been decided. Further, "this Court has never
considered itself bound [by prior sub silentio holdings] when
a subsequent case finally brings the . . . issue before us."
Burbank-Glendale-Pasadena Airport Auth. v. City of Bur-

1005
bank, 136 F.3d 1360, 1363 (9th Cir. 1998) (quoting Will v.
Michigan Dep't of State Police, 491 U.S. 58, 64 n.4 (1989)
(brackets in the original; ellipsis added) (internal quotation
marks omitted)). This is such a subsequent case. Until now,
the question of whether we should apply the McDonnell
Douglas burden-shifting scheme to state law claims was an
open question. Accordingly, we need not follow Messick's
assumption.

Our conclusion is also consistent with circuit law on the
application of federal summary judgment procedures in diver-
sity cases. See Gasaway v. Northwestern Mut. Life Ins. Co.,
26 F.3d 957, 960 (9th Cir. 1994) ("In diversity cases, proce-
dural issues related to summary judgment are controlled by
federal law."); Caesar Elec. Inc. v. Andrews , 905 F.2d 287,
289 n.3 (9th Cir. 1990) ("under the Erie doctrine, federal law
governs the procedural aspects of summary judgment in a
diversity case"); cf. Fairbank v. Wunderman Cato Johnson,
212 F.3d 528, 530-32 (9th Cir. 2000) (holding, in a diversity
case, that district court did not err in reconsidering state
court's denial of summary judgment before removal, which
was contended to be law of the case, because "the California
summary judgment standard under [Cal. Civ. Proc. Code]
S 437c is different in relevant respects from the standard
under Fed. R. Civ. P. 56" and necessarily assuming that fed-
eral rule applied after removal). We must, therefore, examine
the evidence tendered on summary judgment beyond the
prima facie case in accordance with McDonnell Douglas'
burden-shifting model.

2. Pretext Analysis

Under the ADA, when an employee establishes a prima
facie case of discrimination because of a disability, and the
employer provides a non-discriminatory reason for that dis-
charge which "disclaims any reliance on the employee's dis-
ability in having taken the employment action," 10 the analysis
_________________________________________________________________
10 On the other hand, if the employer acknowledges reliance on the dis-
ability in the employment decision, the employer bears the burden of

1006
developed in McDonnell Douglas for suits under Title VII of
the Civil Rights Act of 1964 applies.11 Mustafa, 157 F.3d at
1175-76 (citing Teahan v. Metro-North Commuter R.R. Co.,
951 F.2d 511, 514-16 (2d Cir. 1991)).

[14] Here, Met has unqualifiedly stated that Snead's condi-
tion had nothing to do with Met's elimination of her position.
Thus, under Mustafa, Snead "bears the burden at trial of
showing that [Met's] reason for . . . termination was pretextu-
al." Id. at 1176; see also Collings v. Longview Fibre Co., 63
F.3d 828, 833 (9th Cir. 1995) ("Unless [plaintiff] can show
that [defendant's] explanation for [plaintiff's] discharge was
a pretext for disability discrimination, [she has ] . . . presented
no triable issue under the ADA."); Smith v. Barton, 914 F.2d
1330, 1340 (9th Cir. 1990) (holding that once the employer
offers a legitimate, nondiscriminatory reason for the dis-
charge, and that reason disclaims any reliance on the disabil-
ity, the burden shifts to the employee to demonstrate that the
articulated reason is a pretext for disability discrimination).

Therefore, on summary judgment, we must determine
whether Snead provided sufficient evidence to support a find-
ing of pretext. In so doing, the plaintiff retains the burden of
persuasion. In other words,

she now . . . ha[s] the opportunity to demonstrate
that the proffered reason was not the true reason for
the employment decision. This burden now merges
with the ultimate burden of persuading the court that
she has been the victim of intentional discrimination.
She may succeed in this either directly by persuading
_________________________________________________________________
showing that the disability is relevant to the job's requirements. Mustafa,
157 F.3d at 1176.
11 It is also undisputed that Met provided a legitimate non-discriminatory
reason for Snead's termination--namely, the elimination of her position
as part of a reduction in force.

1007
the court that a discriminatory reason more likely
motivated the employer or indirectly by showing that
the employer's proffered explanation is unworthy of
credence.

Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 256
(1981) (citing McDonnell Douglas, 411 U.S. at 804-05).

"These two approaches are not exclusive; a combination of
the two kinds of evidence may in some cases serve to estab-
lish pretext so as to make summary judgment improper."
Chuang, 225 F.3d at 1127. Furthermore, in making such
showing, Snead does not necessarily have to introduce addi-
tional, independent evidence of discrimination. See Reeves,
120 S.Ct. at 2109; Chuang, 225 F.3d at 1127."As the
Supreme Court recently reaffirmed, a disparate treatment
plaintiff can survive summary judgment without producing
any evidence of discrimination beyond that constituting h[er]
prima facie case, if that evidence raises a genuine issue of
material fact regarding the truth of the employer's proffered
reasons." Id. (citing Reeves, 120 S.Ct. at 2108).

[15] Although Snead has provided sufficient evidence to
support an inference of discrimination, and thus has met her
burden on her prima facie case, that evidence is not sufficient
to raise a genuine issue of material fact regarding the truth of
Met's proffered nondiscriminatory reasons or that a discrimi-
natory reason more likely motivated Met to eliminate her
position. See Burdine, 450 U.S. at 256. On the contrary, the
evidence presented by Snead reinforces Met's proffered justi-
fication. For example, Snead's evidence shows that less than
two months after Snead's position was eliminated, the other
Portland MDM position was also eliminated. This evidence
confirms that Met's business decision to reduce its work force
in Oregon was independent of Snead's disability. This evi-
dence also shows that at least one other similarly situated
employee (Todd) was treated in a similar manner as Snead,
thereby negating any showing of pretext. In light of this evi-

1008
dence, although it is true, as we have noted above, that there
are some inconsistencies in Met's statements as to the timing
of its decision to eliminate Snead's MDM position, those
inconsistencies are not so great as to show that Met's reason
was pretextual. Consequently, Snead has failed to raise a gen-
uine issue of material fact that Met's legitimate, nondiscrimi-
natory reason for her termination was pretextual.

C. Action Against Employee

Snead also brought a claim against McIntosh for violation
of S 659.030(1)(g) which makes it unlawful for "any person,
whether an employer or an employee to aid, abet, incite, com-
pel or coerce the doing of any of the acts forbidden under . . .
[Or. Rev. Stat. SS] 659.400 to 659.5454 or to attempt to do
so." Because Snead failed to raise a genuine issue of material
fact that Met's legitimate, nondiscriminatory reason for her
termination was pretextual, her "aiding and abetting" claim
against McIntosh also fails.

IV. CONCLUSION

We hold that when entertaining motions for summary judg-
ment in employment discrimination cases arising under state
law, federal courts sitting in diversity must apply the McDon-
nell Douglas burden-shifting scheme as a federal procedural
rule. Applying that scheme here, we conclude that, although
she has made out a prima facie case, Snead has failed to raise
a genuine issue of material fact that Met's reason for her ter-
mination was pretextual. Accordingly, we affirm the district
court's grant of summary judgment in favor of defendants.

AFFIRMED.

_________________________________________________________________

1009
LAY, Circuit Judge, Dissenting:

I respectfully dissent. The issue before us is one interpret-
ing the Oregon disability statute. The Oregon law is to "be
construed to the extent possible in a manner that is consistent
with any similar provisions of the federal Americans with
Disabilities Act."1 Or. Rev. Stat. S 659.449. However, the
Oregon appellate courts specifically reject the federal burden-
shifting scheme applied by the majority in this case.2 See Hen-
derson v. Jantzen, Inc., 719 P.2d 1322, 1323-24 (Or. Ct. App.
1986). ("A plaintiff's prima facie case [for employment dis-
crimination] does not disappear merely because a defendant
asserts a nondiscriminatory reason which may or may not per-
_________________________________________________________________
1 Notably, the statutory language of the Oregon law is phrased much dif-
ferently than that of the ADA. The Oregon law states that "[i]t is an
unlawful employment practice for any employer to . .. discharge from
employment . . . an otherwise qualified person [because such person] is
a disabled person." Or. Rev. Stat. S 659.436(1) (1999). The ADA states
that an employer "shall [not] discriminate against a qualified individual
with a disability because of the disability of such individual in regard to
. . . discharge of employees." 42 U.S.C. S 12112(a).
2 The McDonnell Douglas burden-shifting analysis applied by the major-
ity was fashioned by the Supreme Court to analyze claims brought under
Title VII of the Civil Rights Act of 1964. See McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802-06 (1973). The Court has explained that
"[t]he McDonnell Douglas division of intermediate evidentiary burdens
serves to bring the litigants and the court . . . to[the] ultimate question [of
whether the defendant intentionally discriminated against the plaintiff]" in
violation of Title VII. Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S.
248, 253 (1981). Accordingly, once a plaintiff makes a prima facie case,
the burden shifts to the employer "to articulate some legitimate, nondis-
criminatory reason" for its allegedly discriminatory actions. McDonnell
Douglas, 411 U.S. at 802. If the employer does so, the prima facie case
disappears and the employee must then show that the employer's proffered
reasons were pretext for discrimination. See id. at 804.

In contrast, the ADA was designed "to provide clear, strong, consistent,
enforceable standards" to eliminate discrimination against disabled indi-
viduals. 42 U.S.C. S 12101(b)(2). As such, unless disparate treatment with
others similarly situated is alleged, there is no statutory avenue under the
ADA for an employer to articulate a nondiscriminatory reason for its
actions or for an employee to show that the employer's reason was pretex-
tual.

1010
suade the trier of fact."). Because the two statutes are differ-
ent, this case does not present an issue of whether the state or
federal burden of proof should be applied. It seems axiomatic
that in applying the Oregon statute we need to apply Oregon
law which interprets that statute. In other words, it is incon-
gruous for a federal court to dismiss a prima facie case made
under the Oregon disability statute based on a burden of proof
paradigm designed for disparate treatment cases brought
under a totally different statutory scheme. See Bultemeyer v.
Fort Wayne Cmty. Schls., 100 F.3d 1281, 1283-84 (7th Cir.
1996). Erie and Byrd both teach us that we simply exchange
courtrooms, not law, in deciding diversity cases. See Erie R.R.
Co. v. Tompkins, 304 U.S. 64 (1938); Byrd v. Blue Ridge
Rural Elec. Coop., Inc., 356 U.S. 525 (1958). In this case, I
am not aware of any federal policy such as those discussed in
the majority opinion which should override application of the
Oregon law in a diversity case.

Furthermore, applying McDonnell Douglas principles to
the facts of this case seems to be a complete non sequitur.
This is not a disparate treatment case of the sort which the
McDonnell Douglas burden of proof is designed to govern.
Snead does not contend that other employees who were simi-
larly situated were treated more favorably than her. Snead
simply claims that she has a disability but is still qualified to
work with or without accommodation.

Thus, even if the Oregon law parallels the ADA, the facts
of this case do not fit within the McDonnell Douglas frame-
work. Rather, the language of the ADA sets the threshold
Snead must meet in order to defeat summary judgment. Snead
must establish that (1) she is disabled; (2) she is qualified to
perform the essential functions of the job, either with or with-
out accommodation; and (3) she was terminated by reason of
her disability. See Barnett v. U.S. Air, Inc. , 228 F.3d 1105,
1121 (9th Cir. 2000) (en banc). If the employee cannot show
a genuine issue of material fact on any of the three prongs,
summary judgment is appropriate.

1011
As for the first prong, I agree with that part of the majori-
ty's opinion that finds there is a genuine issue of disputed fact
as to whether Snead is disabled.

The second prong of Snead's prima facie case requires a
two-part showing. First, Snead must demonstrate that she
meets the necessary prerequisites for the job. See 42 U.S.C.
S 12111(8); 29 C.F.R. S 1630.2(m); cf. Or. Rev. Stat.
S 659.436(2)(e). Met concedes that Snead is qualified to per-
form the essential functions of the MDM position that she
held prior to her leave of absence. Next, Snead must show
that she can perform the essential functions of the job with or
without reasonable accommodation. See 42 U.S.C.
S 12111(8); 29 C.F.R. S 1630.2(m); cf. Or. Rev. Stat.
S 659.436(2)(e). Unlike many ADA claimants, Snead did not
ask Met to alter her job in a way that would accommodate her
disability. Snead was prepared to return to her MDM position
without any modifications to the job as it was before she went
on leave. In other words, she simply asked Met for her old job
back. At this point she has shown that she is qualified to per-
form the essential functions of the MDM position with or
without accommodation.

However, by the time Snead was prepared to return to
work, Met had for business reasons eliminated her former
MDM position and thus, could not restore her to that job. The
court will not interfere with Met's business judgment to insti-
tute a reduction-in-force unless that action runs afoul of the
law. See National Labor Relations Bd. v. Harrah's Club, 337
F.2d 177, 180 (9th Cir. 1964). Yet this fact in itself is not fatal
to Snead's ability to establish a causal link between her dis-
ability and Met's actions. Snead does not claim a right to the
particular MDM position she formerly held, nor could she
under either federal or Oregon law. See Thompson v. Holy
Family Hosp., 121 F.3d 537, 540 (9th Cir. 1997); Winnett v.
City of Portland, 847 P.2d 902, 907 (Or. Ct. App. 1993). But
assuming Snead can prove that she was disabled, before Met
can terminate her it must try to provide other reasonable

1012
accommodation or employment opportunities. Met did just
that by presenting Snead with three options. First, it offered
her continued employment out of the Seattle office, albeit at
a lesser position than the one she previously held. Second,
Met offered a similar MDM position at a different geographic
location. Finally, because her former position had been elimi-
nated from the company, Met offered Snead a severance
package. In the end, Met terminated Snead when her request
for further information about these alternatives arrived too
late. That excuse belies Met's sincerity in offering Snead con-
tinued employment with the company.3

Assuming that the Oregon disability statute, like the ADA,
recognizes the need for parties to engage in a good-faith inter-
active process to arrive at a reasonable accommodation, then
it seems to me there is a gap in the majority's analysis that
still leaves this matter unresolved.4 As this court has held,
"[t]he interactive process is triggered either by a request for
accommodation by a disabled employee or by the employer's
recognition of the need for such an accommodation. " Barnett,
228 F.3d at 1112. The interactive process is mandatory at this
point and requires "good-faith exploration of possible accom-
_________________________________________________________________
3 "A few hours' tardiness should not be the reason for cutting off the
interactive process and cutting off a person's rights under the ADA."
Bultemeyer, 100 F.3d at 1286.
4 An employer commits unlawful discrimination under the ADA if the
employer does "not mak[e] reasonable accommodations to the known
physical or mental limitations of an otherwise qualified individual with a
disability who is an applicant or employee, unless[the employer] can
demonstrate that the accommodation would impose an undue hardship on
the operation of the business of [the employer]." 42 U.S.C.
S 12112(b)(5)(A); cf. Or. Rev. Stat.S 659.436(2)(e). The ADA's regula-
tions state that: "To determine the appropriate reasonable accommodation
it may be necessary for the [employer] to initiate an informal, interactive
process with the [employee] with a disability in need of the accommoda-
tion. This process should identify the precise limitations resulting from the
disability and potential reasonable accommodations that could overcome
those limitations." 29 C.F.R. S 1630.2(o)(3). See also Taylor v. Phoenix-
ville Sch. Dist., 174 F.3d 142, 156-165 (3d Cir. 1999).

1013
modations between employers and individual employees."
See id. at 1114. It is then the employer's burden to show that
a proposed accommodation will cause undue hardship. See id.
at 1113. Thus, in light of Snead's proof and Met's offer of
accommodation, there is still missing a good-faith interactive
process which should be available to both parties to attempt
to resolve any differences. "Under the foregoing analysis, the
issue of pretext, which is addressed by the McDonnell Doug-
las framework, is subsumed by the issue of reasonable accom-
modation. Once a party shows she suffers from a disability
but is qualified to carry on work with or without accommoda-
tion, the issue becomes whether the employer has entered into
a good-faith interactive process to find a reasonable accom-
modation. The question is whether the accommodation is rea-
sonable and will not cause the employer undue hardship.
Pretext should never be an issue in an ADA analysis. Pretext
relates to an employer's subjective motivation. Reasonable
accommodation relates to an objective analysis of whether
other jobs are available which the employee is qualified to do.

Nevertheless, the elimination of Snead's job, for whatever
reason, does not preclude further inquiry under the ADA. To
survive summary judgment Snead must demonstrate a genu-
ine issue of material fact as to whether the parties engaged in
a good-faith interactive process aimed at reasonable accom-
modation. If no other jobs exist, then the inquiry ends because
it is impossible under the circumstances for an employer to
accommodate the employee. An employer is not required to
undertake undue hardship in accommodating a disabled
employee. See 42 U.S.C. S 12111(10); cf. Kellogg v. Union
Pacific R.R. Co., _______ F.3d _______, No. 00-1893, 2000 WL
1769656, at *5 (8th Cir. Dec. 4, 2000) (recognizing that under
the ADA "an employer is not required to make accommoda-
tions that would subvert other, more qualified applicants for
the job."); Or. Rev. Stat. S 659.436(2)(e). But that is not the
situation here. Met has sought to reasonably accommodate
Snead by offering her various alternatives. By its own actions

1014
Met has shown that these offers for accommodations do not
pose an undue hardship on its business.

Accordingly, I fail to see how the McDonnell Douglas
framework for disparate treatment cases relates in any way to
the facts of the present case. Here, notwithstanding the elimi-
nation of Snead's previous position, Met, at least initially,
made an effort to accommodate her. There is no issue of pre-
text lurking in that. The sole issue that remains is whether Met
and Snead have engaged in a good-faith interactive process to
determine whether reasonable accommodation is feasible.
Without the clarification requested by the plaintiff, it seems
to me that there exists an evidentiary gap that needs to be
filled before this case can be decided.

I would therefore reverse the grant of summary judgment
and remand the case to the district court for further proceed-
ings.

1015