9th Cir.;
15-56091

The court of appeals affirmed a judgment. The court held that an employee who was terminated for repeated absenteeism failed to show that he was wrongfully terminated due to his sleep apnea.

Antonio Alamillo worked as a locomotive engineer for BNSF Railway Company. He opted to work on an “on call” schedule that required him to come into work when called. An employee's failure to answer or respond to three BNSF telephone calls within a single 15-minute period would be deemed a “missed call.” Five missed calls over a 12-month period could result on an on-call employee's dismissal. From January through June 2012, Alamillo missed calls on ten occasions. Following the final incident in June, a termination hearing was scheduled for August 22. In July, Alamillo was diagnosed with obstructive sleep apnea (OSA). His physician opined that not being awakened by a ringing phone was “well within the array of symptoms” of OSA. Alamillo submitted his physician's report to BNSF prior to his hearing. The hearing officer concluded that Alamillo should be dismissed. Alamillo sued BNSF for wrongful termination in violation of the Fair Employment and Housing Act (FEHA), arguing that BNSF discriminated against him on the basis of his disability.