Ninth Circuit Affirms Summary Judgment for BNSF Railway Company in FEHA Case

BNSF Railway Company recently obtained a decisive victory in the Ninth Circuit Court of Appeals, with the Court affirming a grant of summary judgment in its favor on an employee’s FEHA claim. The case, Alamillo v. BNSF Railway Co., was decided August 25, 2017, and underscores the importance of the three-step burden-shifting analysis for employment discrimination cases set forth by the Supreme Court in McDonnel Douglas Corp. v. Green.  In Alamillo, not only was the plaintiff unable to establish a prima facie case of discrimination, the court found that even if he had been able to do so he had presented no evidence that the employer’s stated non-discriminatory reasons for its employment actions were pretextual.   The case is interesting because Alamillo, an “extra board” or on-call locomotive engineer, was subjected to discipline for missing calls to work before he obtained a diagnosis of obstructive sleep apnea, which he then claimed explained his failure to hear and answer his employer’s calls to his cell phone. The district court granted summary judgment to BNSF, concluding that BNSF could not have discriminated against Alamillo based on his disability at a time when Alamillo had no diagnosis. The Ninth Circuit agreed, pointing out that the FEHA prohibits employers from taking adverse employment actions against an employee because of…