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 

ORDER

Before: WALLACE and CALLAHAN, Circuit Judges, and SELNA,*

District Judge.

The Court grants Defendant-Appellee R.C. Willey Home Furnishing’s

Petition for Panel Rehearing . 

The Court amends the first sentence in the second full paragraph, page 2 of

its Memorandum as follows: “Here, neither 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.”

The Court is simultaneously issuing an amended Memorandum. 

All other relief is denied.

FILED

DEC 19 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

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

California, sitting by designation.
NOT FOR PUBLICATION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, CLERK

U.S. COURT OF APPEALS
2 16-16677 

district court granted 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 favor 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 to perform his or her job or the safety of other employees.

Nev. Rev. Stat. § 613.333(1)(b).

Here, neither 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. However,

genuine disputes 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 genuine 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 pain 
3 16-16677 

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

tolerate. Moreover, if O’Brien was performing only a light duty position and was 

not available to drive, there is a genuine dispute as to whether his alcohol use 

adversely affected the safety of other employees because a reasonable jury could 

conclude that managing paperwork and handling delivery calls, 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 disability. 42 U.S.C. § 12112(a). The McDonnell Douglas burden-shifting

 

1 The district court’s determination that a Nevada Department of Administration 

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. Furthermore, 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 discrimination.
5 16-16677 

However, R.C. Willey articulated 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 

violation 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. Even though the district 

court found that 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 claim. 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 retaliatory 

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 terminated 
6 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’ compensation claim was at most a motivating 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 dispute 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’Brien 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 (9th 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 PlaintiffAppellant 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, whether R.C. Willey violated O’Brien’s civil rights for purposes of his 

Americans with Disabilities Act (“ADA”) and retaliatory discharge claims requires 

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 injury

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, CLERK

U.S. COURT OF APPEALS
2

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 discharge 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) suffered an adverse 

employment action because of [his] disability.” Snead v. Metro. Prop. & Cas. Ins. 

Co., 237 F.3d 1080, 1087 (9th 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 breathalyzer test was likely inconsistent with federal law. Federal 

regulations provide that “[a] driver shall only be tested for alcohol while the driver 
3

is performing safety-sensitive functions, just before the driver is to perform safetysensitive functions, or just after the driver has ceased performing such functions.”1

 

49 C.F.R. § 382.305(m) (emphasis added). 

O’Brien argues 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 supervisors 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 ineligible to “perform[] safety-sensitive functions” in his “light 

duty” position, then it is at best unclear why R.C. Willey administered the 

breathalyzer test when doing so appears to be inconsistent with federal law. A jury 

could reasonably 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” include 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.” 

Allum v. Valley Bank of Nev., 970 P.2d 1062, 1066 (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 not
5

[d]ischarge 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 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, “neither 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 remains whether his use of 

alcohol “adversely affected his ability to perform his job or the safety of other 

employees.” I agree that because 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, agree 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 company’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 has 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). Indeed, the record is bereft of evidence 

supporting a necessary element of a § 613.333(b)(1) claim: that O’Brien was 
6

terminated for “engag[ing] in the lawful use” of alcohol “during [his] nonworking 

hours.” 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 

summary judgment to R.C. Willey on the § 613.333 claim.

I respectfully dissent.