FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANTONIO ALAMILLO,

Plaintiff-Appellant,

v.

BNSF RAILWAY COMPANY,

Defendant-Appellee.

No. 15-56091

D.C. No.

2:14-cv-08753-SJO-SS

OPINION

Appeal from the United States District Court

For the Central District of California

S. James Otero, District Judge, Presiding

Argued and Submitted April 7, 2017

Pasadena, California

Filed August 25, 2017

Before: Milan D. Smith, Jr. and N.R. Smith, Circuit 

Judges, and Gary Feinerman, District Judge.*

Opinion by Judge Feinerman

 * The Honorable Gary Feinerman, United States District Judge for 

the Northern District of Illinois, sitting by designation.
2 ALAMILLO V. BNSF RAILWAY CO.

SUMMARY**

California’s Fair Employment and Housing Act

The panel affirmed the district court’s summary 

judgment in favor of BNSF Railway Company in a former 

employee’s action alleging that BNSF terminated him from 

his job as a locomotive engineer in violation of the California 

Fair Employment and Housing Act (“FEHA”).

The panel held that the appellant failed to establish that 

BNSF discriminated against him base on his disability –

obstructive sleep apnea (OSA) – under FEHA. The panel 

applied the three-step burden-shifting test in McDonnell 

Douglas Corp. v. Green, 411 U.S. 792 (1973), and held that 

appellant’s claim failed at the first step – establishing a prima 

facie case of discrimination – because the record contained 

no evidence that appellant’s OSA was a substantial 

motivating reason for BNSF’s decision to terminate him. 

The panel also held that even if appellant had made a prima 

facie case of discrimination, his claim would fail at the third 

step because appellant had not offered evidence that BNSF’s 

stated reason – appellant’s history of attendance violations –

was either false or pretextual. The panel concluded that 

BNSF did not engage in unlawful discrimination by 

declining to alter appellant’s disciplinary outcome, 

termination, based on his OSA diagnosis.

The panel held that BNSF did not violate its reasonable 

accommodation duty under FEHA. The panel rejected 

 ** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
ALAMILLO V. BNSF RAILWAY CO. 3

appellant’s claim that BNSF failed to engage in the 

interactive process after his attendance violations had 

already occurred, because no reasonable accommodation 

could have cured his prior absenteeism at that point. 

COUNSEL

Robert M. Kitson (argued), The Myers Law Group A.P.C.,

Rancho Cucamonga, California, for Plaintiff-Appellant.

Ronald Wayne Novotny (argued) and Ann K. Smith,

Atkinson Andelson Loya Ruud & Romo, Cerritos, 

California, for Defendant-Appellee.

OPINION

FEINERMAN, District Judge:

Plaintiff-Appellant Antonio Alamillo filed this suit 

against Defendant-Appellee BNSF Railway Company 

(BNSF), claiming that it terminated him from his job as a 

locomotive engineer in violation of the California Fair 

Employment and Housing Act (FEHA), Cal. Gov. Code 

§ 12940 et seq. The district court granted summary 

judgment to BNSF, and we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In 2012, Alamillo worked as a locomotive engineer for 

BNSF. Due to his seniority, he had the choice to work either 

(1) a five-day-per-week schedule with regular hours or 

(2) on the “extra board,” which requires employees to come 

to work only when called. Alamillo chose to work on the 
4 ALAMILLO V. BNSF RAILWAY CO.

extra board from January 2012 through June 2012. If an 

extra board employee failed to answer or respond to three 

phone calls from BNSF within a single 15-minute period, the 

employee would be deemed to have “missed a call” and 

marked as absent for the day. BNSF’s attendance policy 

provided that a fifth missed call during any twelve-month 

period “may result in dismissal.”

Alamillo missed a call on ten dates in 2012: January 28, 

January 29, January 31, March 16, March 18, March 20, 

April 23, May 13, May 21, and June 16. He chose to receive 

“Alternative Handling” for the three January missed calls, 

which meant that he received additional training instead of 

discipline. After his next four missed calls, Alamillo 

received a 10-day suspension and a 20-day suspension. At 

that point, Richard Dennison, the superintendent of the 

terminal where Alamillo worked, advised him to get a 

landline or a pager (he had given BNSF only a cell phone 

number) to ensure that he would not miss another call.

Alamillo did not give BNSF a pager or landline phone 

number; he was having an affair at the time, and he did not 

want BNSF to call a landline number because there were 

occasions when he left the house to see his girlfriend when 

his wife thought he was at work. Nor did Alamillo (1) seek 

transfer to a five-day-per-week job; (2) set his alarm for 5:00 

a.m., the most common time for BNSF to call, like he had 

done when he previously worked on the extra board; (3) ask 

his wife to wake him up if his mobile phone rang while he 

was sleeping; or (4) check the electronic job board to see the 

jobs for which he could be called the next day. Sure enough, 

he missed three more calls.

At some point after his final missed call on June 16, 

Alamillo began to suspect that he was experiencing a 

medical problem. At a June 19, 2012 meeting with BNSF 
ALAMILLO V. BNSF RAILWAY CO. 5

California Division General Manager Mark Kirschinger, 

Alamillo mentioned that he intended to undergo testing for a 

possible sleep disorder. Alamillo asked Kirschinger if he 

could switch to a job with set hours; Kirschinger told him to 

follow the usual procedures to bid on a regular five-day-perweek work schedule, but added that the disciplinary process 

for his previous missed calls would proceed. Alamillo then 

switched to a regular schedule and was able to wake up to 

his alarm clock and arrive at work on time every day.

Alamillo completed a sleep study on July 29 and was 

diagnosed with obstructive sleep apnea (OSA) by Dr. 

Kiumars Saketkhoo on August 16. He was prescribed a 

Continuous Positive Airway Pressure (CPAP) machine, and 

his symptoms immediately improved. On or about August 

18, Alamillo provided Dennison with a report from Dr. 

Saketkhoo with his diagnosis.

BNSF often handles employee discipline by holding an 

investigation hearing to determine whether a violation 

occurred. Where, as here, dismissal is a possible sanction, 

the transcript of the hearing is sent to BNSF’s Labor 

Relations Department for review. Alamillo’s hearings for 

the May 13, May 21, and June 16 missed calls occurred on 

August 22. Alamillo discussed his OSA diagnosis at the 

hearings and submitted Dr. Saketkhoo’s medical opinion 

that not being awakened by a ringing phone is “well within 

the array of symptoms” of OSA. However, no medical 

professional opined that the May 21 and June 16 missed calls 

actually were caused by his OSA.

BNSF Director of Labor Relations Andrea Smith 

reviewed Alamillo’s employee transcript, the hearing 

transcripts, and the hearing exhibits before rendering her 

opinion that Alamillo should be given a 30-day suspension 

for the May 13 missed call and be dismissed for the May 21 
6 ALAMILLO V. BNSF RAILWAY CO.

and June 16 missed calls. Kirschinger, the BNSF officer 

responsible for making the final decision, approved the 

dismissal. Alamillo was told on September 18 that he was 

being dismissed for the May 21 and June 16 missed calls. 

Alamillo’s union appealed his dismissal and prevailed, and 

he was reinstated to service.

Alamillo filed this suit against BNSF for wrongful 

termination in violation of public policy, based on 

underlying violations of the FEHA. He claims that BNSF 

discriminated against him on the basis of his disability, failed 

to accommodate his disability, and failed to engage in an 

interactive process with him to determine a reasonable 

accommodation for his disability. See Cal. Gov. Code 

§§ 12940(a), (m)(1), (n). The district court granted summary 

judgment to BNSF, reasoning that BNSF could not have 

violated the FEHA because Alamillo’s attendance violations 

took place before he was diagnosed with a disability and 

before any accommodation was requested. See Alamillo v. 

BNSF Ry. Co., No. CV 14-08753 SJO (SSx), 2015 WL 

11004494 (C.D. Cal. June 16, 2015).

DISCUSSION

I. Disability Discrimination Claim

The FEHA makes it unlawful “[f]or an employer, 

because of the ... physical disability ... of any person, ... to 

discharge the person from employment,” unless the 

employee “is unable to perform his or her essential duties 

even with reasonable accommodations.” Cal. Gov. Code 

§§ 12940(a), (a)(2). “A prima facie case for discrimination 

on grounds of physical disability under the FEHA requires 

[the] plaintiff to show: (1) he suffers from a disability; (2) he 

is otherwise qualified to do his job; and, (3) he was subjected 

to adverse employment action because of his disability.” 
ALAMILLO V. BNSF RAILWAY CO. 7

Faust v. Cal. Portland Cement Co., 58 Cal. Rptr. 3d 729, 745 

(Cal. Ct. App. 2007) (internal quotation marks omitted). 

“[A]n employer has treated an employee differently 

‘because of’ a disability when the disability is a substantial 

motivating reason for the employer’s decision to subject the 

employee to an adverse employment action.” Wallace v. 

Cty. of Stanislaus, 199 Cal. Rptr. 3d 462, 475 (Cal. Ct. App. 

2016); see also Harris v. City of Santa Monica, 294 P.3d 49, 

66 (Cal. 2013) (same). For purposes of FEHA claims, 

California has adopted the three-step burden-shifting test 

established in McDonnell Douglas Corp. v. Green, 411 U.S. 

792 (1973), such that:

On a motion for summary judgment ... the 

plaintiff bears the burden of establishing a 

prima facie case of discrimination based 

upon physical disability, and the burden then 

shifts to the employer to offer a legitimate, 

nondiscriminatory reason for the adverse 

employment action. Once the employer has 

done so the plaintiff must offer evidence that 

the employer’s stated reason is either false or 

pretextual, or evidence that the employer 

acted with discriminatory animus, or 

evidence of each which would permit a 

reasonable trier of fact to conclude the 

employer intentionally discriminated.

Faust, 58 Cal. Rptr. 3d at 745.

Alamillo’s claim fails at the first step—establishing a 

prima facie case—because the summary judgment record 

contains no evidence that his OSA was “a substantial 

motivating reason for” BNSF’s decision to terminate him. 

Wallace, 199 Cal. Rptr. 3d at 475. Indeed, the parties appear 
8 ALAMILLO V. BNSF RAILWAY CO.

to agree that Alamillo’s OSA made no difference whatsoever 

to BNSF’s disciplinary outcome. BNSF did not know that 

Alamillo was disabled when the decision to initiate 

disciplinary proceedings was made, and Alamillo concedes 

that BNSF “disregarded” his disability when it decided to 

terminate him.

Even if Alamillo had made a prima facie case of 

discrimination, his claim would fail at the third step of the 

McDonnell Douglas test. BNSF asserts that it dismissed 

Alamillo because of his recurrent absenteeism, and Alamillo 

has not “offer[ed] evidence that the employer’s stated reason 

is either false or pretextual, or evidence that the employer 

acted with discriminatory animus, or evidence of each which 

would permit a reasonable trier of fact to conclude the 

employer intentionally discriminated.” Faust, 58 Cal. Rptr. 

3d at 745. Alamillo’s pretext argument is based entirely on 

emails in which Smith recommended that Alamillo be 

dismissed for his May 21 and June 16 missed calls and 

Kirschinger agreed with the recommendation. The sole 

reference in those emails to Alamillo’s disability appears in 

Smith’s discussion of the June 16 missed call: “Mr. Alamillo 

entered documentation to support his argument that he has 

sleep apnea; this was allegedly the reason he did not hear his 

phone ring. While certain arbitrators could be sympathetic, 

he did not seek assistance until after he faced dismissal (this 

would be his second dismissal), which is arguably too late.” 

In other words, Smith considered the possibility that sleep 

apnea may have prevented Alamillo from hearing his phone 

and refused to change her decision on that basis. That is not 

evidence “which would permit a reasonable trier of fact to 

conclude the employer intentionally discriminated.” Id. To 

the contrary, it reinforces the conclusion that BNSF’s 

articulated nondiscriminatory reason for firing Alamillo—
ALAMILLO V. BNSF RAILWAY CO. 9

his history of attendance violations, which culminated in the 

May 21 and June 16 missed calls—was sincere.

To support a different result, Alamillo cites Humphrey v. 

Memorial Hospitals Association, 239 F.3d 1128 (9th Cir. 

2001), in which we observed that “[f]or purposes of the 

ADA [Americans with Disabilities Act], ... conduct 

resulting from a disability is considered to be part of the 

disability, rather than a separate basis for termination.” Id. 

at 1139–40. (Alamillo did not bring an ADA claim, but 

ADA decisions are “relevant” in interpreting the FEHA. 

Brundage v. Hahn, 66 Cal. Rptr. 2d 830, 835 (Cal. Ct. App. 

1997) (citing cases).) The plaintiff in Humphrey, who 

suffered from obsessive compulsive disorder (OCD), was 

terminated—purportedly for absenteeism—after she began 

engaging in ritualistic behavior that made her late for work. 

Humphrey, 239 F.3d at 1130, 1139; see also id. at 1135 

(“[T]he 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.”). We reversed the district court’s 

grant of summary judgment to the defendant employer 

because “a jury could reasonably find the requisite causal 

link between a disability of OCD and Humphrey’s 

absenteeism and conclude that [the employer] fired 

Humphrey because of her disability.” Id. at 1140. Alamillo 

argues by analogy that a jury could find that same connection 

between his OSA and his absenteeism to support the 

conclusion that BNSF fired him because of his disability.

Alamillo’s reliance on Humphrey is unavailing because, 

on the record before us, no reasonable jury could find “the 

requisite causal link” between Alamillo’s OSA and his 

attendance violations. In Humphrey, the plaintiff’s 

absenteeism was the direct result of her OCD. See id. at 
10 ALAMILLO V. BNSF RAILWAY CO.

1132 (“Humphrey’s evaluation indicates that were it not for 

her ailment, she would have been a model employee.”). 

Moreover, months before her final set of absences, 

Humphrey presented her employer with medical evidence 

that her absenteeism directly resulted from her OCD. Id. at 

1131 (describing a doctor’s letter stating that Humphrey’s 

OCD “is directly contributing to her problems with 

lateness”).

The record here is entirely different. Alamillo has 

adduced no evidence that OSA caused the particular missed 

calls at issue. His physician stated only that not being 

awakened by a ringing phone falls “within the array of 

symptoms” of OSA, not that there was direct causation in 

Alamillo’s case. Moreover, unlike the plaintiff in 

Humphrey, Alamillo easily could have taken steps that 

would have allowed him to appear for work despite his 

disability: exercising his option to work a job with regular 

hours; checking the electronic job board every day; setting 

his alarm for 5:00 a.m.; asking his wife to wake him up if his 

phone rang while he was sleeping; or providing BNSF with 

a landline or pager number to use as a back-up if he did not 

answer his cell phone. Thus, Alamillo’s OSA may have 

been a contributing factor to his attendance violations, but 

only due to his own non-OSA-related carelessness and 

inattention. BNSF therefore did not engage in unlawful 

discrimination by declining to alter Alamillo’s disciplinary 

outcome based on his OSA diagnosis.

II. Reasonable Accommodation and Interactive 

Process Claims

In addition to prohibiting discrimination based on 

disability, the FEHA makes it unlawful for an employer to 

“fail to make reasonable accommodation for the known 

physical ... disability of an ... employee,” Cal. Gov. Code 
ALAMILLO V. BNSF RAILWAY CO. 11

§ 12940(m)(1), or to “fail to engage in a timely, good faith, 

interactive process with the employee ... to determine 

effective reasonable accommodations, if any, in response to 

a request for reasonable accommodation by an employee or 

applicant with a known physical ... disability or known 

medical condition,” Cal. Gov. Code § 12940(n). 

“Reasonable accommodation” is defined as “a modification 

or adjustment to the workplace that enables the employee to 

perform the essential functions of the job held or desired.” 

Scotch v. Art Inst. of Cal.-Orange Cty., Inc., 93 Cal. Rptr. 3d 

338, 358 (Cal. Ct. App. 2009) (quotation marks omitted); see 

also Cal. Gov. Code § 12926(p) (providing examples of 

“reasonable accommodation”). “‘Reasonable 

accommodation’ does not include excusing a failure to 

control a controllable disability or giving an employee a 

‘second chance’ to control the disability in the future.” Wills 

v. Superior Court, 125 Cal. Rptr. 3d 1, 20 n.4 (Cal. Ct. App. 

2011) (quotation marks omitted); see also Brundage, 66 Cal. 

Rptr. 2d at 838.

Alamillo argues that BNSF violated its reasonable 

accommodation duty because it failed to do any of these 

three things after his final missed call but before the 

termination decision was made: “(1) change [Alamillo] to a 

constant work schedule, (2) [choose] the non-mandatory 

termination option in light of the circumstances, and 

(3) [offer] leniency in light of the circumstances.”

The first proposed accommodation does not give rise to 

a reasonable accommodation claim because BNSF actually 

made that accommodation, switching Alamillo, at his 

request, to a job with regular hours. The second and third 

proposed accommodations—essentially, that BNSF not 

terminate him for prior misconduct—do not qualify as 

reasonable accommodations under California law. As noted 
12 ALAMILLO V. BNSF RAILWAY CO.

above, “a ‘second chance’ to control the disability in the 

future” is not a reasonable accommodation. Wills, 125 Cal. 

Rptr. 3d at 20 n.4; see also Brundage, 66 Cal. Rptr. 2d at 

838; EEOC, Enforcement Guidance: Reasonable 

Accommodation and Undue Hardship Under the Americans 

with Disabilities Act (EEOC ADA Enforcement Guidance), 

available at 2002 WL 31994335, at *25 (“Since reasonable 

accommodation is always prospective, an employer is not 

required to excuse past misconduct even if it is the result of 

the individual’s disability.”); cf. Atkins v. City of Los 

Angeles, 214 Cal. Rptr. 3d 113, 134 & n.7, 139 (Cal. Ct. App. 

2017) (citing the EEOC ADA Enforcement Guidance in 

interpreting the FEHA’s reasonable accommodation 

requirement). Alamillo’s reasonable accommodation claim 

is therefore meritless.

The interactive process claim fails for similar reasons. 

“To prevail on a claim ... for failure to engage in the 

interactive process, an employee must identify a reasonable 

accommodation that would have been available at the time 

the interactive process should have occurred.” Scotch, 

93 Cal. Rptr. 3d at 365. The FEHA does not impose liability 

for failure to engage in the interactive process when no 

reasonable accommodation is possible. Nadaf-Rahrov v. 

Neiman Marcus Grp., Inc., 83 Cal. Rptr. 3d 190, 216 (Cal. 

Ct. App. 2008). Alamillo maintains that BNSF failed to 

engage in the interactive process after his attendance 

violations had already occurred, but no reasonable 

accommodation could have cured his prior absenteeism at 

that point. It necessarily follows that no reasonable jury 

could find in Alamillo’s favor on the interactive process 

claim.
ALAMILLO V. BNSF RAILWAY CO. 13

CONCLUSION

For the foregoing reasons, the district court’s judgment 

is AFFIRMED. Appellant shall bear costs on appeal. Fed. 

R. App. P. 39(a)(2).