NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TAYLER BAYER, 

Plaintiff-Appellant, 

 v. 

NEIMAN MARCUS GROUP, INC., 

Defendant-Appellee.

No. 19-16282 

D.C. No. 3:13-cv-04487-TSH 

MEMORANDUM*

Appeal from the United States District Court

for the Northern District of California

Thomas S. Hixon, Magistrate Judge, Presiding

Argued and Submitted October 14, 2020

San Francisco, California

Before: McKEOWN and NGUYEN, Circuit Judges, and WHALEY,** District 

Judge.

Tayler Bayer appeals the district court’s judgment following a bench trial in 

favor of Neiman Marcus Group, Inc. on his claim under § 503(b) of the Americans 

with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq. We have jurisdiction 

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

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Robert H. Whaley, United States District Judge for the 

Eastern District of Washington, sitting by designation.

FILED

JAN 26 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

under 28 U.S.C. § 1291. Reviewing the district court’s conclusions of law and 

mixed questions of law and fact de novo, OneBeacon Ins. Co. v. Haas Indus., Inc., 

634 F.3d 1092, 1096 (9th Cir. 2011), we reverse and remand.

1. As a preliminary matter, the parties dispute the standard1that applies to 

§ 503(b), which provides that “[i]t shall be unlawful to coerce, intimidate, threaten, 

or interfere” with any individual in the “exercise or enjoyment” of ADA rights. 42 

U.S.C. § 12203(b). Although in Brown v. City of Tucson, we appear to treat 

§ 503(b) “interference” differently from § 503(a) “retaliation,” we did not resolve 

the precise legal standard that applied because the employer’s conduct in Brown 

clearly violated the plain statutory language. 336 F.3d 1181, 1191-93 (9th Cir. 

2003). We take the same approach here because Bayer presented sufficient 

evidence to prevail on his § 503(b) claim regardless of which legal standard 

applies.

2. After Bayer returned to work from medical leave, Neiman Marcus denied 

1 Relying on the plain language of the statute and analogizing to the National Labor 

Relations Act and the Family and Medical Leave Act, Bayer argues that any 

conduct that “tends to chill” the exercise of ADA rights violates the statute. See 

Brown v. City of Tucson, 336 F.3d 1181, 1190-93 (9th Cir. 2003) (exploring the 

same argument, declining to impose the burden-shifting framework of McDonnell 

Douglas Corp. v. Green, 411 U.S. 792 (1973), and ruling that the employee 

survived summary judgment on a § 503(b) claim by alleging a “distinct and 

palpable injury” because § 503(b)’s plain language prohibits an employer from 

threatening an employee to forgo statutorily protected accommodations). On the 

other hand, Neiman Marcus argues that § 503(b) requires a showing of a causal 

link between the protected conduct and the adverse action.
3 

his request to modify his work schedule to accommodate his ADA-qualifying 

medical condition. Shortly thereafter, Bayer filed an administrative charge with 

the Equal Employment Opportunity Commission (“EEOC”), charging Neiman 

Marcus with an ADA violation for its failure to accommodate his work schedule 

request. The same day, Neiman Marcus presented Bayer with a mandatory 

arbitration agreement.2

The arbitration materials emphasized, and Neiman Marcus reiterated, that 

the agreement was not optional: Bayer had to choose between ending his 

employment by July 14, 2007 or, he was told, being bound by the agreement 

thereafter. The “choice” presented by Neiman Marcus was a false dilemma. As 

we held in 2014, Bayer’s continued employment did not constitute implied consent 

to arbitrate because he repeatedly refused to sign the agreement-related forms and 

therefore was not bound by the agreement. Bayer v. Neiman Marcus Holdings, 

Inc., 582 F. App’x 711, 713-14 (9th Cir. 2014). Nor was the agreement a run-ofthe-mill arbitration document that simply channeled disputes to another forum, as 

Neiman Marcus maintains. The California Court of Appeal has found the 

agreement unconscionable.3 Among other troubling terms, the agreement 

2 The parties agree that the arbitration agreement, which was sent to all at-will 

employees, was not a direct response to Bayer’s accommodation request. 

3 Pinela v. Neiman Marcus Group, Inc., 238 Cal. App. 4th 227, 250-51 (2015) 

(detailing “multiple unconscionable aspects” of the agreement under California 
4 

mandated arbitration for administrative charges already filed and purported to 

change statutes of limitation. Neiman Marcus also reserved for itself the power to 

amend, modify, or revoke the agreement terms at any time, with thirty days’ notice 

to the employee.

Bayer reasonably believed that his consent to the agreement would imperil

his EEOC charge, and by extension his ability to receive an ADA accommodation.

He repeatedly refused to sign the agreement-related forms and filed a second 

EEOC charge asserting Neiman Marcus interfered with his rights in violation of 

ADA § 503(b) by pressuring him to choose between his ADA rights and his job. 

As the district court found, Bayer “felt intense pressure and coercion” in the leadup 

to the agreement’s effective date “and beyond.” Bayer testified it was one of the 

most stressful times of his life, and he had to take antidepressants and a sleep aid.

The district court’s factual findings are more than sufficient to establish a claim 

under § 503(b) because, like the employee in Brown, Bayer suffered “direct harm” 

such as “giving up . . . ADA rights, or some other injury which resulted from . . . 

refusal to give up . . . rights, or from the [interference] itself.” 336 F.3d at 1193 

(citing Bachelder v. Am. W. Airlines, Inc., 259 F.3d 1112, 1124 (9th Cir. 2001)).

law); cf. Peleg v. Neiman Marcus Group, Inc., 204 Cal. App. 4th 1425, 1448-50, 

1467 (2012) (finding the agreement illusory under Texas law, because among other 

flaws, the agreement permitted Neiman Marcus to modify its terms unilaterally 

upon thirty days’ notice).
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We do not suggest that § 503(b) bars “any [employer] action whatsoever that 

in any way hinders” employees’ ADA rights. Brown, 336 F.3d at 1193. But we 

hold that an employer interferes with ADA rights when it knowingly compels an 

employee with pending EEOC charges to a false choice to either resign or consent

to an unconscionable arbitration agreement, which specifically targets ADA rights.

Accordingly, we reverse the judgment of the district court and remand with 

direction to enter judgment in favor of Bayer.

REVERSED and REMANDED.