NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KEN KACHUR, 

Plaintiff-Appellant, 

 v. 

NAV-LVH, LLC, DBA Westgate Las Vegas 

Resort & Casino, a Nevada Limited Liability 

Company, 

Defendant-Appellee.

No. 19-16251 

D.C. No. 

2:16-cv-02899-JAD-CWH 

MEMORANDUM*

Appeal from the United States District Court

for the District of Nevada

Jennifer A. Dorsey, District Judge, Presiding

Submitted June 1, 2020**

Seattle, Washington

Before: GOULD, BEA, and MURGUIA, Circuit Judges.

Kenneth Kachur (“Kachur”) appeals the district court’s summary judgment 

in favor of NAV-LVH, LLC (“Westgate”) in his employment action under the 

Americans with Disabilities Act (“ADA”) and the Age Discrimination in 

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

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

FILED

JUN 8 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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Employment Act (“ADEA”). We review de novo a grant of summary judgment. 

Summers v. A. Teichert & Son, Inc., 127 F.3d 1150, 1152 (9th Cir. 1997). We have 

jurisdiction under 28 U.S.C. § 1291. We reverse in part, affirm in part, and remand 

to the district court for further proceedings consistent with this memorandum.

1. As to Kachur’s ADA claim, the central issue is whether his request for

an extension of his unpaid medical leave was a reasonable accommodation under 

the statute. We have held that “[e]ven an extended medical leave, or an extension 

of an existing leave period, may be a reasonable accommodation if it does not pose 

an undue hardship on the employer.” Nunes v. Wal-Mart Stores, Inc., 164 F.3d 

1243, 1247 (9th Cir. 1999) (emphases added). We have never recognized a per se 

rule that extended leave could never constitute a reasonable accommodation. In 

fact, we have consistently held that “whether a proposed accommodation . . . is 

reasonable . . . requires a fact-specific, individualized inquiry.” Id. 

To avoid summary judgment in favor of his employer, an employee need 

only show that an “‘accommodation’ seems reasonable on its face, i.e., ordinarily 

or in the run of cases.” U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 401 (2002). 

“Once the plaintiff has made this showing, the defendant/employer then must show 

special (typically case-specific) circumstances that demonstrate undue hardship in 

the particular circumstances.” Id. at 402.

Here, the record is clear that Kachur underwent knee surgery and that he 
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kept Westgate abreast of his recovery progress on a monthly basis after he 

exhausted his Family and Medical Leave Act leave. At the time of his termination, 

Kachur had requested an additional four weeks of leave (on top of sixteen weeks 

previously granted). The record also indicates that Kachur’s “[e]stimate[d] 

treatment schedule” would involve “monthly appointments for 3-4 visits.” 

Kachur’s physician also provided deposition testimony regarding the 

indeterminacy of the healing process following knee surgery. 

Critically, the ADA “does not require an employee to show that a leave of 

absence is certain or even likely to be successful to prove that it is a reasonable 

accommodation,” and an employee only needs “to satisfy the minimal requirement 

that a leave of absence could plausibly have enabled [him] adequately to perform 

[his] job.” Humphrey v. Mem’l Hosps. Ass’n, 239 F.3d 1128, 1136 (9th Cir. 2001)

(emphasis added).

Accordingly, the district court erred when it granted summary judgment to 

Westgate. It concluded, as a matter of law, that Kachur’s requested 

accommodation was unreasonable because he “was unable to give Westgate any 

indication [sic] how long the leave would be”—in other words, because he was 

unable to provide any assurance as to the end date of his leave. As noted above, 

we have never recognized an accommodation that fails to provide a date certain for 
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returning to work as per se unreasonable. See id.; Nunes, 164 F.3d at 1247.1 

Viewing the above evidence in the light most favorable to Kachur, there appears to 

be a genuine dispute of material fact regarding whether his request for an extension 

of his unpaid leave was a reasonable accommodation. See Nunes, 164 F.3d at 

1247. The updates he provided to Westgate as to his recovery progress can be 

easily understood as estimates of his expected return to work. And a request of an 

additional four weeks of leave “seems reasonable on its face.” Barnett, 535 U.S. at

401.

On remand, in view of the correct substantive law outlined above, the 

district court must determine whether there are genuine issues of material fact 

related to whether Kachur’s request for an extension of his unpaid leave was a 

reasonable accommodation. The district court may also address in the first 

instance whether Kachur’s additional leave request would have posed an “undue 

hardship” on Westgate. See Humphrey, 239 F.3d at 1136 n.14 (“[A]n employer 

need not make a[] [reasonable] accommodation . . . if it poses an undue 

hardship.”); see also 42 U.S.C. § 12112(b)(5)(A) (defining, in part, discrimination 

1 The closest we have come to endorsing the district court’s conclusion is a 

passing, tentative statement in Dark v. Curry County, 451 F.3d 1078 (9th Cir. 

2006). There, we stated that “recovery time of unspecified duration may not be a 

reasonable accommodation (primarily where the employee will not be able to 

return to his former position and cannot state when and under what conditions he 

could return to work at all).” Id. at 1090 (emphases added). We did not declare 

that “recovery time of unspecified duration is not a reasonable accommodation.”
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against a qualified individual on the basis of a disability as “not making reasonable 

accommodations . . . unless [an employer] can demonstrate that the 

accommodation would impose an undue hardship on the operation of the 

business[.]”).

2. As to Kachur’s ADEA claim, the district court rightly concluded that 

at the third step of the McDonnell Douglas framework, Kachur failed to raise a 

genuine factual question as to whether Westgate’s proffered reason for the 

termination (i.e., failure to return from a leave of absence) was pretextual. In 

support of this claim, Kachur presented to the district court two spreadsheets with 

statistics that purport to demonstrate that Westgate intentionally discriminated 

against Kachur because of his age. One spreadsheet lists security officers hired by 

Westgate after October 2015 (when Kachur was terminated). The second 

spreadsheet lists security officers terminated by Westgate after March 2015.

The statistics presented by Kachur are insufficient in themselves to create a 

triable issue of fact of intent to discriminate. “To establish a prima facie case [(at 

step one of the McDonnell Douglas framework)] based solely on statistics, let 

alone raise a triable issue of fact regarding pretext [(at step three of the McDonnell 

Douglas framework)], the statistics ‘must show a stark pattern of discrimination 

unexplainable on grounds other than age.’” Coleman v. Quaker Oats Co., 232 

F.3d 1271, 1283 (9th Cir. 2000) (emphasis added) (quoting Rose v. Wells Fargo, 
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902 F.2d 1417, 1423 (9th Cir. 1990)).

The district court noted that Kachur’s own deposition testimony 

acknowledged that some of the terminations were due to structural changes in 

Westgate’s security department. This is confirmed by the second spreadsheet, 

which lists “Reorganization” as the termination reason for six of the eleven 

individuals to which Kachur points. The ages of these six individuals ranged from

forty-three to sixty-eight years old and they held management positions. 

Accordingly, “[a] great proportion of job displacement occurred at the 

management level” because Westgate chose to reorganize the department. Rose, 

902 F.2d at 1423. The “statistical disparity . . . is explained by the fact older 

persons tend to occupy these key management positions.” Id. 

The evidence Kachur presented does not show a “stark pattern of 

discrimination unexplainable on grounds other than age.” Coleman, 232 F.3d at

1283 (quoting Rose, 902 F.2d at 1423). Even when looking at the statistics in the 

light most favorable to Kachur, no reasonable juror could conclude—on the basis 

of statistics that do not account for obvious factors such as the elimination of 

management positions during a reorganization—that Westgate intentionally 

discriminated against him because of his age. Id. at 1288.

Each party shall bear its own costs on appeal.

REVERSED in part; AFFIRMED in part; and REMANDED.