NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUN 8 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

KEN KACHUR, No. 19-16251

Plaintiff-Appellant, D.C. No. 2:16-cv-02899-JAD-CWH v.

NAV-LVH, LLC, DBA Westgate Las Vegas MEMORANDUM* Resort & Casino, a Nevada Limited Liability Company,

Defendant-Appellee.

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). 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

2 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

3 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.”

4 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,

5 902 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.

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