NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL A. REHFELDT, 

Plaintiff-Appellant, 

v. 

U.S. DEPARTMENT OF HOMELAND 

SECURITY; ALEJANDRO N. 

MAYORKAS, Secretary of Homeland 

Security (substituted for former Acting 

Secretary of Homeland Security Chad Wolf, 

pursuant to FRCP 25(d)), 

Defendants-Appellees, 

and 

CHAD F. WOLF, 

Defendant.

No. 23-15240 

D.C. No. 1:20-cv-00181-KJM 

MEMORANDUM*

Appeal from the United States District Court

for the District of Hawaii

Kenneth J. Mansfield, Magistrate Judge, Presiding

Argued and Submitted February 14, 2024

University of Hawaii Manoa

Before: PAEZ, M. SMITH, and KOH, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

FILED

MAR 26 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2

Michael Rehfeldt appeals the district court’s order granting summary 

judgment in favor of the Department of Homeland Security and Alejandro 

Mayorkas (collectively, “Defendants”). We have jurisdiction pursuant to 28 U.S.C. 

§ 1291. Because the parties are familiar with the facts, we do not recount them 

here, except as necessary to provide context to our ruling. We affirm in part and 

reverse in part. 

1. The district court did not abuse its discretion by deeming Defendants’

statement of undisputed facts admitted for purposes of summary judgment. The 

District Court’s Local Rule 56.1(g) provides that “material facts set forth in the 

movant’s concise statement will be deemed admitted unless controverted by a 

separate concise statement of the opposing party.” Local Rules of Practice for the 

United States District Court for the District of Hawaii (Aug. 26, 2019). Local rules 

have the “force of law” and are binding upon the parties and the court. Martel v. 

County of Los Angeles, 21 F.3d 940, 946–47 (9th Cir. 1994). Rehfeldt admits that 

he failed to controvert almost all of Defendants’ factual assertions. The district 

court thus did not abuse its discretion by following its own rules and deeming 

Defendants’ factual statements admitted.

2. Even treating Defendants’ statements of fact as admitted, however, the 

district court erred in granting Defendants summary judgment on Rehfeldt’s Count 

II for violation of the Rehabilitation Act, 29 U.S.C. § 701, et seq. 
3

Under the Act, “[o]nce an employee requests an accommodation . . . , the 

employer must engage in an interactive process with the employee to determine the 

appropriate reasonable accommodation.” U.S. E.E.O.C. v. UPS Supply Chain Sols., 

620 F.3d 1103, 1110 (9th Cir. 2010) (quoting Zivkovic v. S. Cal. Edison Co., 302 

F.3d 1080, 1089 (9th Cir. 2002)).1 This interactive process “requires: (1) direct 

communication between the employer and employee to explore in good faith the 

possible accommodations; (2) consideration of the employee’s request; and (3) 

offering an accommodation that is reasonable and effective.” Id. (quoting Zivkovic, 

302 F.3d at 1089). Rehfeldt asserts that at least three genuine disputes of material 

fact exist as to whether Defendants engaged in this interactive process in good 

faith, specifically with respect to: (1) his request to work remotely; (2) his request 

under the Voluntary Leave Transfer Program (“VLTP”); and (3) his relocation to 

the Annex. We consider each in turn. 

First, Rehfeldt has failed to raise a genuine dispute of material fact regarding 

whether Defendants improperly rejected his request for remote work because the 

evidence, even viewed in the light most favorable to Rehfeldt, shows that 

Defendants engaged in the interactive process in response to this request. Indeed, 

although a request to work remotely can in some cases be considered reasonable, 

1

“In determining whether a federal agency has violated the Rehabilitation 

Act, the standards under Title I of the Americans with Disabilities Act (‘ADA’) 

apply.” McLean v. Runyon, 222 F.3d 1150, 1153 (9th Cir. 2000) (citation omitted). 
4

see Humphrey v. Mem’l Hosps. Ass’n, 239 F.3d 1128, 1137 (9th Cir. 2001), 

Defendants indicated that implementing such a request would pose an “undue 

burden” given that Rehfeldt’s job required handling sensitive information. More

importantly, Defendants offered Rehfeldt at least one practical alternative, 

specifically that he take various forms of leave, which this court has considered a 

reasonable accommodation under the Act. See id. at 1136. Defendants thus 

satisfied their obligation, and the district court properly granted summary judgment 

on this issue.

Second, Rehfeldt has raised a genuine dispute of material fact regarding

whether his VLTP request would have constituted a reasonable accommodation. 

As part of the interactive process, the employee has the initial burden of showing 

that a reasonable accommodation is possible. See Buckingham v. United States, 

998 F.2d 735, 740 (9th Cir. 1993). Once the employee has done so, the employer 

cannot “avoid reasonable accommodation absent a showing of undue hardship.” 

Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1113 (9th Cir. 2000), vacated on other 

grounds sub nom. US Airways, Inc. v. Barnett, 535 U.S. 391 (2002). 

Defendants argue that Rehfeldt was ineligible for VLTP on the basis that he 

had not yet exhausted his other leave sources at the time of his application. But 

Rehfeldt has presented evidence that such a requirement was not consistently 

enforced. Thus, a genuine dispute of material fact exists as to whether VLTP 
5

would have constituted a reasonable accommodation that Defendants were 

required to consider. UPS Supply Chain Sols., 620 F.3d 1103 (quoting Zivkovic, 

302 F.3d at 1089). Summary judgment was therefore improper. 

Finally, Rehfeldt has raised a genuine dispute of material fact regarding

whether his relocation to the Annex was an effective accommodation. Under the 

Act, “[a]n appropriate reasonable accommodation must be effective.” Barnett, 228 

F.3d at 1115; see also UPS Supply Chain Sols., 620 F.3d at 1110 (“Ineffective 

modifications . . . are not accommodations.”). And though the interactive process 

required by the Act “does not require an employer to be clairvoyant regarding the 

effectiveness of a modification,” UPS Supply Chain Sols., 620 F.3d at 1112, an 

employee need only show that their employer “was aware or should have been 

aware that the modification it offered . . . was not effective,” id. at 1114 (emphasis 

added). 

Although Rehfeldt failed to dispute Defendants’ statement that “[w]hile 

working out of the Annex, [he] never informed management that his asthma 

worsened,” Rehfeldt has nonetheless presented evidence from which a reasonable 

trier of fact could find that Defendants should have been aware that his relocation 

to the Annex was an ineffective accommodation. As we said in UPS Supply Chain 

Sols., “[w]here . . . there is a disputed issue of fact regarding whether the 

modifications the employer selected were effective, and where the trier of fact 
6

could reasonably conclude that the employer was aware or should have been aware 

that those modifications were not effective, summary judgment is not appropriate.”

620 F.3d at 1114. That is the situation here, and summary judgment on that issue 

was therefore improper.

In short, Rehfeldt has presented evidence that Defendants “foreclosed at 

least one potentially reasonable accommodation” by denying his VLTP 

application, Barnett, 228 F.3d at 1117, and failed to offer “an accommodation that 

[was] reasonable and effective” by relocating him to the Annex, UPS Supply Chain 

Sols., 620 F.3d at 1111. Viewing all evidence in the light most favorable to 

Rehfeldt, a reasonable trier of fact could determine that Defendants did not engage 

in the interactive process in good faith. For these reasons, summary judgment was 

not warranted. See Barnett, 228 F.3d at 1116.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

Each side shall bear their own costs on appeal.