UNITED STATES C OUR T OF APPEALS
FOR THE NINTH C IR C U IT
STEVEN O’ B R IEN,

Pla intiff-Appe lla

nt,

v. R .C . W ILLEY HOM E FUR NISHINGS,
De fe nda nt-Appe lle e
. No. 16-16677

D.C

. No. 2:15-c v-00329-R C J-C W H

OR DER

B e fore : W A LLAC E a nd C ALLAHAN, C irc uit Judge s , a n d SELNA, * Distric t Judge

. The C ourt gra

nts De fe n da

nt-Appe lle e R .C . W ille y

Hom e Furnishing’ s Pe tition for Pa

ne l R e he a ring . The C ourt a

m e nds the first se nte n c e in the se c ond full pa ra gra ph, pa ge 2 of its M e m ora ndum

a s follows: “ He re , ne ithe r pa rty dispute s tha

t R .C . W i lle y disc ha rge d O’ B rie n be c a

use he pre s e nte d for work with a .067% blood a l c ohol le ve l a s a re sult of the la

wful use of a lc ohol outside R .C

. W ille y ’ s pre m ise s during his nonworking hours.” The C ourt is sim

ulta ne ously issuing a

n a m e nde d M e m o ra ndum

. All othe r re lie f is de nie d. 

# FIL ED

DEC 19 2018
M OLLY C. DW Y ER, CLERK U

. S. CO URT O F APPEALS

* The Honorable J ames V. Selna, United States District J udg e for the Central District of California, sitting by

desig nation.NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

STEVEN O’ BRIEN,

Plaintiff

- Appellant,

v. R.C. WILLEY HOME FURNISHINGS,

Defendant

- Appellee. No. 16

- 16677
D.C. No. 2:15

- cv - 00329

- RCJ

- CWH

AMENDED MEMORANDUM *

Appeal from the United States District Court for the District of Nevada Robert Clive Jones, District Judge, Presiding Argued and Submitted March 12, 2018 San Francisco, California Before: WALLACE and CALLAHAN, Circuit Judges, and SELNA, ** District Judge. Plaintiff

- Appellant Steven O’Brien (“O’Brien”) appeals from the judgment of the district court in which : (1) the district court denied O’Brien’s motion for partial summary judgement on his Nev. Rev. Stat. § 613.333 claim ; and (2) the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The Honorable James V. Selna, United States District Judge for the Central District of California, sitting by designation. 

# FILED

DEC 19 2018 MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL S2 16

- 16677

dist rict court grant ed summary judgment in favor of Defendant

- Appellee R.C. Willey Home Furnishings (“R.C. Willey”) on all claims. We have jurisdiction under 28 U.S.C . § 1291, and we affirm in part, reverse in part , and remand.
1. We reverse the district court’s grant of summary judgment in fav or of R.C. Willey on the Nev. Rev. Stat. § 613.333 claim. Under Nevada law, it is unlawful for an employer to: Discharge or otherwise discriminate against any employee concerning the employee’s compensation, terms, conditions or privileges of employment, because the employee engages in the lawful use in this state of any product outside the premises of the employer during the employee’s nonworking hours, if that use does not adversely affect the employee’s ability t o perform his or her job or the safety of other employees.
Ne v. Rev. Stat. § 613.333(1)(b). Here, n either party disputes that R.C. Willey discharged O’Brien because he presented for work with a .067 % blood alcohol level as a result of th e lawful use of al cohol outside R.C. Willey ’s premises during his nonworking hours. However, genuine dispute s remain regarding whether O’Brien’s use of alcohol adversely affected his ability to perform his job or the safety of other employees. Specifically, there is a gen uine dispute of material fact regarding whether O’Brien was actually available to drive on September 25 , 2013, given that he had been placed on light duty, was required to work at a pay rate substantially below what he was paid as a commercial driver, was prescribed narcotic and opioid pain3 16

- 16677

medications, and was medically restricted from sitting for longer than he could tolerate

. Moreover, if O’Brien was p erforming only a light duty position and was not available to drive, there is a genuine dispute as to w hether his alcohol use adversely affected the safety of other employees because a reasonable jury could conclude that managing paperwork and handling delivery cal ls, even while intoxicated, did not pose a safety risk to other employees

. We also affirm the district court’s denial of O’Brien’s motion for partial summary judgment on the Nev. Rev. Stat. § 613.333 claim. 1 Accordingly, the action is remanded to the district court for further proceedings consistent with this decision.
2. We affirm the district court’s summary judgment in favor of R.C. Willey on O’Brien’s Americans With Disabilities Act (“ADA”) claim. The ADA makes it unlawful to discharge a person with a qualifying disability on account of that disa bility. 42 U.S.C. § 12 112(a). The McDonnell Douglas burden

- shifting

1 T he district court’s determination that a Nevada Department of Adm inistration Appeals Officer’s findings were entitled to preclusive effect was erroneous because issue preclusion is inapplicable when the burden of persuasion shifts between the parties in two proceedings. See Dias v. Elique , 436 F.3d 1125, 1129 (9th Cir. 2006); Restatement (Second) of Judgments § 28, Westlaw (database updated June 2018); 18 Charles Alan Wright, et al., Federal Practice & Procedure § 4422 (3d ed.), Westlaw (database updated Apr. 2017). Nevertheless, this error is not grounds for reversal because the court narrowly construed the findings such that they did not entitle O’Brien to partial summary judgment on the § 613.333 claim.4 16

- 16677

analysis applies to disability discrimination claims under the ADA. See Snead v. Metro. Prop. & Cas. Ins. Co. , 237 F.3d 1080, 1093 (9th Cir. 2001). Under McDonnell Douglas , a plaintiff must first establish a prima facie case of discrimination. See McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802 (1973). Once a plaintiff establishes a prima facie case, the burden shifts to the employer to provide a legitimate, non

- discriminatory reason for the discharge. See id. If the employer does so, the burden shifts back to the employee to show that the employer’s proffered reason was a pretext for discrimination. See id. at 804 ; Snead , 247 F.3d at 1093. To establish a prima facie case of discrimination under the ADA, O’Brien must show that he “(1) is disabled; (2) is qualified; and (3) suffered an adverse employment action because of [his] disability.” Snead , 237 F.3d at 1087

. The parties do not dispute that O’Brien is a disabled person within the meaning of the ADA or that he is qualified to perform his job. Further more , causation may be inferred from timing alone where an employee is terminated shortly after his employer discovers that he is disabled. See Davis v. Team Elec. Co. , 520 F.3d 1080, 1094 (9th Cir. 2008)

. Because O’Brien was terminated shortly after the date that he was injured , the temporal proximity between his injury and his termination supports an inference of causation. Therefore, we conclude that O’Brien established a prima facie case of dis crimination.5 16

- 16677

However, R.C. Willey articulat ed a legitimate, nondiscriminatory reason for O’Brien’s termination by presenting evidence that O’Brien was terminated because of the results of the breathalyzer tests he took on September 25, 2013, and his violat ion of R.C. Willey’s alcohol policy. Because O’Brien failed to present sufficient evidence of pretext to rebut this legitimate justification, his ADA claim fails at the third stage of the McDonnell Douglas analysis. E ven though the district court found t hat O’Brien’s claim failed at the prima facie case stage of the McDonnell Douglas analysis , we nevertheless affirm on this alternative ground.
3. We affirm the district court’s summary judgment in favor of R.C. Willey on O’Brien’s retaliatory discharge cla im. Nevada recognizes a “narrow” exception to the at

- will employment doctrine, which provides that “retaliatory discharge by an employer stemming from the filing of a workmen’s compensation claim by an injured employee is actionable in tort.” Hansen v. Harrah’s , 675 P.2d 394, 397 (Nev. 1984) . Under this exception, “a plaintiff must demonstrate that his protected conduct was the proximate cause of his discharge.” Allum v. Valley Bank of Nev. , 970 P.2d 1062, 1066 (Nev. 1998) (emphasis omitted)

. A retali atory discharge claim cannot be based upon a mixed motives theory. Id. Here, O’Brien has not demonstrated that his filing of a workers’ compensation claim was the proximate cause of his discharge. Instead, the evidence indicates that there is no genuine dispute that R.C. Willey terminated6 16

- 16677

O’Brien, at least in part, for violating the company’s alcohol policy. Because O’Brien cannot maintain a retaliatory discharge claim where the filing of a workers’ c ompensation claim was at most a mo tivating factor, see id. , R.C. Willey was entitled to summary judgment. Accordingly, we affirm the district court’s summary judgment in favor of R.C. Willey on the retaliatory discharge claim

. 4. Finally, the dissent agrees that there is a genuine disput e regarding O’Brien’s availability to drive and on that basis concludes that the result for the ADA and retaliatory discharge claims should be different. Dissent 1

– 4. However, even if R.C. Willey was mistaken about O’Brien’s availability to drive and O’B rien was tested as a result of this mistake, this error does not vitiate the legitimacy of the grounds for his termination. Demonstrating that an employer’s legitimate, non

- discriminatory reason for termination was based on a mistake does not show pretext

. See Dep’t of Fair Emp’t & Hous. v. Lucent Techs., Inc. , 642 F.3d 728, 746 (9 th Cir. 2011); U.S. E.E.O.C. v. Republic Servs., Inc. , 640 F. Supp. 2d 1267, 1313

– 14 (D. Nev. 2009); McKinney v. Am. Airlines, Inc. , 641 F. Supp. 2d 962, 973 (C.D. Cal. 2009).
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. Each party shall bear their own costs.1 O ’ Brien v. R.C. Willey Home Furnishings , No. 16
- 16677 Callahan, J., dissenting in part : I agree with the majority that issue preclusion does not apply to Plaintiff

Appellant Steven O ’ Brien ’ s claim brought under Nev. Rev. Stat. § 613.333 , and
that the district court properly denied O ’ Brien ’ s motion for partial summary judgment on the § 613.333 claim

. I respectfully dissent , however, from the
remainder of the majority ’ s decision affirming in part and reversing in part the
district court ’ s grant of summary judgment to Defendant

- Appellee R.C. Willey Home Furnishings

. First, w hether R.C. Willey violated O ’ Brien ’ s civil rights for purposes of his Americans with Disabilities Act (“ ADA ”) and retaliatory discharge claims req uires determining, as an initial matter, whether O ’ Brien was available to drive on September 25, 2013 . The majority acknowledges this is a disputed issue of
material fact given O ’ Brien ’ s “ light duty ” status and prescribed narcotic and opioid medications. It also finds that a tight temporal nexus between O ’ Brien ’ s injur y and the date of his termination “ supports an inference of causation

. ” Yet the majority incongruously concludes that R.C. Willey articulated a legitimate, nondiscriminatory, non - pretextual reason for terminating O ’ Brien: his violation of R.C. Willey ’ s policy against having a blood alcohol level above .04% while on duty

. 

# FILED

DEC 19 2018 MOLLY C. DWYER, CLER K

U.S. COURT OF APPEAL S2 Second, the majority reverses on an issue where it should affirm . The majority holds that O ’ Brien states an actionable claim under Nev. Rev. Stat. § 613.333 because it finds O ’ Brien was terminated for his off

- duty drinking

. Not so. As the majority accurately states in the context of O ’ Brien ’ s ADA and retaliatory d ischarge claims, O ’ Brien was terminated when he violated R.C. Willey ’ s policy while at work.
I. The Americans With Disabilities Act and Retaliatory Discharge Claims A prima facie case of discrimination under the ADA requires a plaintiff to show that he “(1) is disabled; (2) is qualified; and (3) suf fered an adverse employment action because of [his] disability. ” Snead v. Metro. Prop. & Cas. Ins.
Co. , 237 F.3d 1080, 1087 (9 th Cir. 2001). I agree with my colleagues that O ’ Brien
establishes a prima facie case of discrimination for the reasons stated by the majority. Where I part ways is on whether R.C. Willey rebuts that showing. The

answer to that question hinges on the resolution of a disputed issue of material
fact

— O ’ Brien ’ s availability to drive in his post

- injury, “ light duty ” position

. O ’ Brien ’ s availability to drive bears directly on whether R.C. Willey ’ s averred justification for his termination was pretextual. If O ’ Brien could not have been dispatched to operate a commercial vehicle, then R.C. Willey ’ s administration of the breathaly zer test was likely inconsistent with federal law

. Federal regulations provide that “[ a] driver shall only be tested for alcohol while the driver3 is performing safety

- sensitive functions, just before the driver is to perform safety

sensitive functions, or just after the driver has ceased performing such functions. ” 1 49 C.F.R. § 382.305(m) (emphasis added)

. O ’ Brien a rgues he was unavailable to drive a commercial truck

— and thus ineligible to “ perform[] safety

- sensitive functions ”

— after R.C. Willey placed him

on “ light duty ” status because he was prescribed pain medications that , by law , barred him from operating commercial vehicles. He also contends that R.C. Willey knew he was medically restricted from operating such vehicles. Moreover , it is undisputed O ’ Brien told his supervisor s that he had been drinking at night to help with his pain, and that they administered a breathalyzer test to him in the morning , thereby increasing the likelihood the test results would be positive

. If O ’ Brien is
correct that he was in eligible to “ perform[] safety

- sensitive functions ” in his “ light duty ” position , then it is at best unclear why R.C. Willey administered the
breathal yzer test when doing so appears to be inconsistent with federal law . A jury
could rea sonably conclude that, under the circumstances, testing O ’ Brien and then firing him for failing the breathalyzer test was a pretext for an ulterior motive.

1 See also 49 C.F.R. § 382.107 (defining a “ safety

- sensitive function ” as a period in which a driver “ is actually performing, ready to perform, or immediately available to perform any safety

- sensitive functions ”); 49 C.F.R. § 382.107 (“[ s]afety

- sensitive functions ” i nclude time spent “ waiting to be dispatched, unless the driver has been relieved from duty by the employer ”).4 O ’ Brien ’ s retaliatory discharge claim turns on the same disputed fact . As the majority recognizes, Nevada law prohibits terminating an employee for filing a workers ’ compensation claim

— something O ’ Brien did fourteen days after he was injured. Hansen v. Harrah ’ s , 675 P.2d 394, 397 (Nev. 1984)

. “[ A] plaintiff must demonstrate that his protected conduct was the proximate cause of his discharge. ”
A llum v. Valley Bank of Nev. , 970 P.2d 1062, 106 6 (Nev. 1998) (emphasis in original)

. The majority concludes that “ O ’ Brien ’ s termination was based solely on the results of the breathalyzer tests and his violation of R .C. Willey ’ s alcohol policy, ”
and not on his workers ’ compensation claim stemming from his injury. But, as with O ’ Brien ’ s ADA claim, determining whether O ’ Brien ’ s injury and subsequent claim was the proximate cause of his termination runs through an inquiry into
O ’ Brien ’ s availability to drive. Accordingly , I would reverse the district court and deny summary judgment to R.C. Willey on his ADA and retaliatory discharge claims.
II. The Nev. Rev. Stat. § 613.333 Claim Nevada law bars an employer from terminating an employee for the employee ’ s lawful off

- duty, off

- premises activities. Nev. Rev. Stat. § 613.333(1)(b). Section 613.333(1)(b) provides that an employer may not5 [d]ischarge o r otherwise discriminate against any employee concerning the employee ’ s compensation, terms, conditions or privileges of employment, because the employee engages in the lawful use in this state of any product outside the premises of the employer during th e employee ’ s nonworking hours, if that use does not adversely affect the employee ’ s ability to perform his or her job or the safety of other employees. The majority holds that O ’ Brien defeats summary judgment on his § 613.333 claim because, it finds, “ ne ither party disputes that R.C. Willey discharged O ’ Brien because he presented for work with a .067% blood alcohol level as a result of the lawful use of alcohol outside R.C. Willey ’ s premises during his nonworking hours ,” and because a genuine dispute rema ins whether his use of
alcohol “ adversely affected his ability to perform his job or the safety of other employees. ” I agree that b ecause it is disputed whether O ’ Brien was available to drive, it is unclear whether his alcohol consumption impaired anyone ’ s safety.
I do not , however, ag ree that O ’ Brien was terminated for his off

- duty drinking. Rather , both O ’ Brien and R.C. Willey are in accord that O ’ Brien was terminated for violating the c ompan y ’ s policy against arriving at work with a blood alcohol level above

. 04% , not for his off

- duty drinking

. R.C. Willey is emphatic on this point, and O ’ Brien h as acknowledged it, alleging that he was terminated “ due to the results of the September 25, 2013 Breathalyzer tests .” Pls. Mot. for Partial
Summ. J. at 4 (Dist. Ct. Dkt. No. 25). I ndeed , the record is bereft of evidence supporting a necessary element of a § 613.333 (b)(1) claim : that O ’ Brien was6 terminated fo r “ engag[ing] in the lawful use ” of alcohol “ during [his] nonworking
h ours. ” Put another way, O ’ Brien proffers no evidence showing that R.C. Willey
terminated him for lawfully drinking off

- duty rather than for being at work with alcohol in his system. Accordingly, I would affirm the district court ’ s grant of

s ummary judgment to R.C. Willey on the § 613.333 claim. I respectfully dissent.