The Plaintiff was a special education teacher for a school district in Idaho who suffered from depression and bipolar disorder.? ?Her contract required that she ?maintain the legal qualifications to teach,? which in turn required that she hold a certificate issued by the board of education.? ?In order to renew her certificate, which had expired in September 1, 2007, Plaintiff was required to complete six semester hours of professional development training.?? ?Although she made substantial progress, she was unable to complete the training because of depression.?? ?Plaintiff requested as an accommodation that the Board apply to the state for a provisional authorization to teach without the certificate for the upcoming year. The Board denied the request.

Plaintiff filed suit alleging numerous state causes of action and a violation of the ADA.? ?The Defendant ?removed ?the? case? to ?federal ?court, which granted summary judgment for the Board on all issues.?? The Plaintiff appealed, and the Ninth Circuit affirmed.

The sole issue on appeal was whether the Plaintiff was ?a? ?qualified ?individual ?with ?a? disability? within the meaning of the ADA.? ?The Court acknowledged that a ?qualified individual with a disability? is one ?who satisfies the requisite skills, experience, education and other job related requirements of the employment position such individual ?holds ?or ?desires, ?and ?who, ?with ?or without reasonable accommodation, can perform the essential functions of such position.? ?Citing?29 C.F.R. ? 1630.2(m) (emphasis added).?? The Court ruled that unless a disabled individual independently satisfies the job prerequisites, she is not ?otherwise qualified,? and the employer is not obligated to furnish any reasonable accommodation that would enable her to perform the essential job functions.? ?Because the Plaintiff did not meet the first prong of the test, the Defendant was under no obligation to accommodate.

The EEOC participated as amicus curiae.? ?It argued that its Interpretative Guidance provides that ?selection criteria that are related to an essential function of the job may not be used to exclude an individual with a disability if that individual could satisfy the criteria with the provision of a reasonable accommodation.? 29 C.F.R. Pt. 1630. ?The Court declined to rely upon this provision on the grounds that it pertains to challenges? to? qualification? standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability. ?No such allegation was being made in this case.?? ?In sum, an individual who fails ?to ?satisfy the? job ?prerequisites ?cannot ?be considered ?qualified? within the meaning of the ADA unless she shows that the prerequisite is itself discriminatory in effect. Otherwise, the default rule remains that ?the obligation to make reasonable accommodation is owed only to an individual with a disability who . . . satisfies all the skill, experience, education and other job- related selection criteria.??

Judge Paez concurred in the judgment because the School District did not have the authority to grant the accommodation requested – it only had the authority to petition for provisional authorization. ?He argued that there was no need to reach the question of whether the District had a duty of reasonable accommodation under the ADA? to? apply for provisional? authorization? to rehire the Plaintiff so that she could ultimately renew ?her ?certification.??? ?Moreover, ?Plaintiff would not have been qualified even if the provisional waiver had been granted.

Had the issue been presented, however, Judge Paez would have deferred to the EEOC?s understanding of?? its? ?own? ?Interpretative?? Guideline?? that? ?an employer must provide a reasonable accommodation to a prospective employee if that accommodation would allow the employee to become qualified for the position at issue.

Johnson v. Board of Trustees of the Boundary County School District No. 101,? — F.3d — (9th Cir. 12/8/11) (O?Scannlain. Paez, Kendall (N.D. Ill))