NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAY 20 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

THOMAS MONTGOMERY, husband; No. 20-15327 MYSHELL MOLINA, wife, D.C. No. 4:17-cv-00201-RM Plaintiffs-Appellants,

v. MEMORANDUM*

UNION PACIFIC RAILROAD

COMPANY,

Defendant-Appellee.

Appeal from the United States District Court for the District of Arizona Rosemary Márquez, District Judge, Presiding

Argued and Submitted May 3, 2021 Portland, Oregon

Before: W. FLETCHER, BEA, and FRIEDLAND, Circuit Judges.

Plaintiff Thomas Montgomery applied for a train crew position with

Defendant Union Pacific Railroad Company (“Union Pacific”). He received a

conditional job offer, but that offer was rescinded after Union Pacific learned of a

brain aneurism he had suffered years prior. Montgomery and his wife, Myshell

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Molina (collectively, “Plaintiffs”), sued Union Pacific, alleging that it had

maintained an unlawful screening policy in violation of the Americans with

Disabilities Act (“ADA”), 42 U.S.C. § 12112(a), (b)(6).1 The case went to trial,

but after the jury failed to reach a verdict, the district court declared a mistrial and

granted Union Pacific’s renewed motion for judgment as a matter of law

(“JMOL”). The court concluded that Plaintiffs had failed to put forth any evidence

that Montgomery could perform the essential functions of the train crew position.

Plaintiffs timely appealed. We have jurisdiction under 28 U.S.C. § 1291, and we

affirm.

Union Pacific is entitled to JMOL because Montgomery cannot establish

that he is a “qualified individual” for purposes of the ADA.2 Unrebutted evidence

demonstrated that having had zero work-related safety violations in the two years

prior to applying was a prerequisite for the train crew position. See Bates v. United

Parcel Serv., 511 F.3d 974, 990 (9th Cir. 2007) (en banc) (accepting that having a

1 Plaintiffs asserted other claims but dismissed them before trial. 2 Plaintiffs contend that, pursuant to the ADA Amendments Act of 2008 (“ADAAA”), Pub. L. No. 110-325, 122 Stat. 3553 (2008), an ADA plaintiff bringing an unlawful screening claim under 42 U.S.C. § 12112(b)(6) need not prove that he is a qualified individual. But Plaintiffs cannot point to a single case adopting this interpretation of the ADAAA, and we see no evidence that Congress intended to alter the “qualified individual” requirement through the ADAAA. See 42 U.S.C. § 12112(a) (“No covered entity shall discriminate against a qualified individual on the basis of disability . . . .” (emphasis added)). Accordingly, we reject Plaintiffs’ novel interpretation of the ADAAA.

2 “clean driving record by UPS’s local standards” was a valid job prerequisite for

purposes of determining whether ADA plaintiffs were qualified). Yet shortly

before applying for the train crew position, Montgomery caused a train car

derailment at BNSF Railway, his prior employer, by “fail[ing] to switch safely and

efficiently.” Moreover, one year prior to the derailment, Montgomery had been

fired from his job at Gale Insulation. Montgomery repeatedly lied about both

events to obtain his conditional job offer from Union Pacific. The record

established that, had Montgomery disclosed the derailment and his termination

from Gale Insulation, he would have been deemed unqualified by Union Pacific,

and his application would have been rejected outright.

The district court erred by bifurcating trial and excluding this evidence from

the jury at the liability phase. Even though Union Pacific discovered the

derailment and Montgomery’s termination after it had already revoked

Montgomery’s conditional job offer, the company nonetheless was entitled to rely

on this after-acquired evidence to show that Montgomery was not qualified for the

position. See Anthony v. Trax Int’l Corp., 955 F.3d 1123, 1131 (9th Cir. 2020)

(“[A]fter-acquired evidence remains available . . . to show that an individual is not

qualified under the ADA.”). That said, a remand for further proceedings would be

futile because the end result would necessarily be the same. Cf. Chinnock v.

Turnage, 995 F.2d 889, 893 (9th Cir. 1993) (holding that remand “would be

3 pointless” because plaintiff could not prove he was entitled to benefits as a matter

of law); Am. Postal Workers Union AFL-CIO v. U.S. Postal Serv., 682 F.2d 1280,

1285 (9th Cir. 1982) (concluding that “remand would be futile” because the facts

of the case support only one conclusion). The after-acquired evidence leaves no

room for doubt that Montgomery was unqualified as a matter of law.3

AFFIRMED.

3 Legal Aid at Work, the AIDS Legal Referral Panel, the Arizona Center for Disability Law, Disability Rights Advocates, Disability Rights Education and Defense Fund, Disability Rights Legal Center, and Impact Fund moved for leave to file an amicus brief. See Dkt. Nos. 15, 16. That motion is hereby granted.

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