FILED

NOT FOR PUBLICATION

FEB 27 2018

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHELE BAKER, No. 16-55961

Plaintiff-Appellant, D.C. No. 3:14-cv-00800-JM-JMA v.

ROMAN CATHOLIC ARCHDIOCESE MEMORANDUM*

OF SAN DIEGO; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Southern District of California Jeffrey T. Miller, District Judge, Presiding

Argued and Submitted February 12, 2018 Pasadena, California

Before: BERZON and BYBEE, Circuit Judges, and WOODCOCK,** District Judge.

Michele Baker appeals from the district court’s grant of summary judgment

to her former employer, the Roman Catholic Bishop of San Diego (“RCBSD”), on

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable John A. Woodcock, Jr., United States District Judge for the district of Maine, sitting by designation. her disparate treatment claim under the Americans with Disabilities Act (“ADA”).

42 U.S.C. § 12112(a). She contends that the district court applied an incorrect

definition of disability, and that it did not properly consider various pieces of

circumstantial evidence in its summary judgment ruling. We agree and reverse.

1. The district court concluded that Baker did not have a disability protected

by the ADA. The court reasoned, “There is simply no evidence that RCBSD, or

even Plaintiff’s treating physicians believed, or even considered, that Plaintiff was

disabled and could not engage in major life activities . . . .” This conclusion rests

on an erroneous legal standard.

Under the ADA Amendments Act of 2008 (“ADAAA”), a plaintiff is

“regarded as having . . . an impairment,” and thus disabled, if “he or she has been

subjected to an action prohibited . . . because of an actual or perceived physical or

mental impairment whether or not the impairment limits or is perceived to limit a

major life activity.” 42 U.S.C. § 12102(3)(A) (emphasis added). The ADAAA

thus clarified that employers need not regard someone as being substantially

limited in any major life activity to regard them as disabled, “thereby expand[ing]

the class of individuals who are entitled to protection under the ADA.” Rohr v.

Salt River Project Agric. Improvement & Power Dist., 555 F.3d 850, 853 (9th Cir.

2009).

2 Here, there is evidence in the summary judgment record that the principal

Michael Deely: (1) knew that Baker had suffered a concussion at the end of

August, because she had told him via email; (2) knew that Baker continued to

suffer from dizziness and headaches after the concussion, because Baker said she

told him that when she ran into him every week or two; (3) was concerned about

Baker’s health immediately after the concussion, because he expressed that

concern to her; and (4) according to both Baker and Deely, asked about Baker’s

health when he saw her from time to time. This evidence could be interpreted by a

jury as demonstrating that Deely “regarded” Baker as having post-concussion

headaches and dizziness throughout the relevant time period. 42 U.S.C.

§ 12102(3)(A).

Further, having headaches and dizziness for months following a concussion

could be interpreted by an employer as a “physiological disorder or condition . . .

affecting . . . neurological” systems, 29 C.F.R. § 1630.2(h)(1), and thus an

impairment. The parties thus have a triable dispute as to whether RCBSD regarded

Baker as disabled.

2. The district court next concluded that Baker had failed to identify

disputed material facts that would, if proven at trial, establish her prima facie case

and prove that RCBSD’s neutral reasons were pretextual. See Curley v. City of N.

3 Las Vegas, 772 F.3d 629, 632 (9th Cir. 2014) (applying the burden-shifting

framework of McDonnell Douglas to ADA disparate treatment claims); accord

Snead v. Metro. Prop. & Cas. Ins. Co., 237 F.3d 1080, 1093-94 (9th Cir. 2001).

We do not agree. Baker presented sufficient evidence that, if believed, would both

establish a prima facie case of disparate treatment and raise a triable issue as to

whether RCBSD’s neutral reasons were pretextual.

First, Baker produced evidence that she had received mixed performance

reviews for twelve years without any warning that RCBSD would not renew her

teaching contract absent improvement. Her 2013 performance review was similar

in tone to—and, in fourteen of seventeen “areas of growth” identified in 2009, an

improvement on—past reviews, yet, five months after she suffered a concussion,

her contract was not renewed. See Villiarimo v. Aloha Island Air, Inc., 281 F.3d

1054, 1065 (9th Cir. 2002) (“[I]n some cases, causation can be inferred from

timing alone,” although “timing alone will not show causation in all cases.”).

Second, Baker noted that RCBSD did not have documentation of any

student, parent, or teacher complaints, although Deely and two other administrators

relied on such complaints in depositions and declarations as a critical reason for

her termination. See McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1123 (9th Cir.

2004) (determining that the “absence of any documentation” was “sufficient” to

4 support an inference of pretext). Third, she noted that RCBSD did not provide her

with any verbal or written warnings concerning the conduct for which it did not

renew her contract, and it did not otherwise attempt to discipline her, despite mixed

evidence in the record as to RCBSD’s discipline policies. See Earl v. Nielsen

Media Research, Inc., 658 F.3d 1108, 1117 (9th Cir. 2011) (“A plaintiff may also

raise a triable issue of pretext through evidence that an employer’s deviation from

established policy or practice,” including formal and informal disciplinary policies,

“worked to her disadvantage.”). And, fourth, Baker provided declarations from

two former RCBSD teachers who said their contracts were not renewed after they

developed mobility impairments. See Sprint/United Mgmt. Co. v. Mendelsohn, 552

U.S. 379, 388 (2008) (holding that other employees’ testimony that they were

discriminated against is not “per se admissible or per se inadmissible,” but its

relevance “is fact based and depends on many factors, including how closely

related the evidence is to the plaintiff’s circumstances and theory of the case”).

Combined with other inferences that a jury might draw from Baker’s 2013

performance evaluation—particularly, from Deely’s conflicting reasons for the

timing of the evaluation; the lack of dates and times on the evaluation; and the fact

that this was, apparently, the first evaluation of Baker done by a principal rather

5 than an assistant administrator—this evidence was sufficient to raise a triable issue

of pretext.

We thus reverse the district court’s grant of summary judgment to RCBSD

and remand for further proceedings.

REVERSED and REMANDED.

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