Metropolitan News-Enterprise


Wednesday, October 4, 2023


Page 1


Ninth Circuit:

United Airlines Might Be Liable Based on Face-Mask Edict


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals has reversed a summary judgment in favor of United Airlines in an action for disability discrimination brought by a former baggage-handler at Los Angeles International Airport who was unable to wear a face mask during the pandemic for health reasons.

Ex-employee Robert Bezzina brought suit under California’s Fair Employment and Housing Act (“FEHA”) and United removed it to the District Court for the Central District of California based on diversity of citizenship.

A three-judge Ninth Circuit panel said in a memorandum opinion, filed Monday, that it’s up to a jury to decide whether, in light of local, state, and federal orders and pronouncements—which the opinion terms “Guidance”—it was reasonable for United not to allow Bezzina to wear a face-shield with a drape, rather than a mask, instead placing him on an unpaid leave of absence.

A comparison of what the panel portrays the trial judge as having said with what actually appears in his ruling creates a question as to whether he was wrongfully maligned.

The panel was comprised of Judge Danielle J. Forrest, Senior Circuit Judge A. Wallace Tashima, and District Court Judge Kathleen Cardone of the Western District of Texas, sitting by designation.

District Court’s Decision

District Court Judge John F. Walter of the Central District of California on Feb. 24, 2022, ruled that United’s no-exception mask policy was reasonable, explaining:

“In this case, Plaintiff is unable to establish a prima facie case of disability’ discrimination because he cannot demonstrate that he is able to perform the essential duties of his position without endangering himself or others. It is undisputed that Plaintiff s position requires that he wear a mask in order to protect his own health and safety of those around him. Plaintiff is unable to wear a mask due to his disability, and is therefore not a qualified individual within the meaning of FEHA. As a result, Plaintiff has failed to establish a triable issue of fact as his disability discrimination claim and United’s Motion is granted with respect to that claim.”

He added “that United has demonstrated that it has a legitimate and nondiscriminatory basis for its mask policy—the protection of its employees and customers from the highly contagious, air-borne virus, COVID-19.”

Walter also found Bezzina’s other claims to lack merit, including his insistence that United failed to provide a “reasonable accommodation.” Walter said:

“[T]he Court concludes that under the circumstances of this case, the accommodation offered to Plaintiff—extended leave without pay until he is able to return to work without having to wear a mask and the opportunity to apply for other positions—was reasonable.”

Ninth Circuit Opinion

The Ninth Circuit opinion declares:

“[W]e hold that a reasonable jury could find that Bezzina was able to perform the essential functions of his job without endangering the health or safety of others, if permitted to wear a face shield with a drape, instead of a face mask. To be sure, the Guidance required that people wear masks while traveling or working in airports. And it consistently explained that the purpose of masking was to protect the health and safety of the mask-wearer and those around them by reducing the spread of COVID-19 through respiratory droplets. It also consistently indicated that face shields are not as effective as masks at preventing the spread of COVID-19.”

It continues:

“At the same time, however, the Guidance uniformly provided exemptions from its mask mandates, particularly for people with disabilities. And both the federal Centers for Disease Control and Prevention and the California Department of Public Health specifically described a face shield with a drape or hood as the recommended alternative to masks, in cases where an exemption was warranted. In sum, the Guidance suggests both that face shields are less safe than masks, while also suggesting that they are a reasonably safe alternative for people like Bezzina who have disabilities that prevent them from wearing a face mask. Weighing this competing evidence is for the fact finder at trial.”

Addressing Bezzina’s claim that he was not afforded a “reasonable accommodation,” as legally required where feasible, the opinion says that in light of the conclusion that there is a triable issue as to whether the plaintiff could work, consistent with safety, wearing a face-shield, the question on whether placing him “on unpaid leave was an accommodation, or instead, an actionable adverse action, turns on that same, unresolved fact dispute.”

The opinion notes that Walter’s grant summary of judgment on four other claims “relied almost entirely on its flawed analysis of the discrimination claim,” saying that this calls for reversal of summary judgment as to all of the six claims.

Criticism of Walter

Although the opinion says that it is for a jury to determine reasonableness of United’s posture in light of official “Guidance,” it criticizes Walter for supposedly himself ignoring such “Guidance.”

The opinion says that the judge “deferred to United’s ‘reasonable business decision to require every employee wear a face mask without exception,’ and expressly declined to consider whether that decision was consistent with the objective evidence available.” It adds that he “erred by finding that the orders and guidance promulgated by federal, state, and local public health authorities contained in the summary judgment record (the ‘Guidance’) were ‘not germane’ to [his] analysis.”

However, Walter’s decision does take note of “Guidance.” He recited that the federal Center for Disease Control (“CDC”) “based on studies, determined that face masks ‘are a simple barrier to help prevent respiratory droplets from reaching others,’ ” adding:

“The CDC advises that ‘masks should completely cover the nose and mouth and fit snugly against the sides of the face without gaps.’ The CDC has expressly stated that it does not recommend face shields as a substitute for masks because ‘face shields are not as effective at protecting you or the people around you from respiratory droplets.” This is because face shields have ‘large gaps below and alongside the face, where your respiratory droplets may escape and reach others around you and will not protect you from respiratory droplets from others.’ ”

He declared that “United has remained vigilant in complying with local, state, and federal guidance and requirements concerning COVID-19,” citing various orders and pronouncements and notes that “United consulted with experts at the Cleveland Clinic to obtain guidance on the airline’s policies and procedures concerning mandatory face coverings.”

‘Not Germane’

His use of the words “not germane” did not come in the context of disavowing any need on his part to resort to “Guidance” in reaching his decision. Walter said:

“Plaintiff also argues that United’s decision not to allow him to wear a face shield in lieu of a mask was unreasonable and thus evidence of discriminatory intent. Plaintiff’s argument is based on the same set of federal, state and local orders and regulations relied upon by United in support of its Motion. These mandates generally suggest that face shields may be an acceptable substitute when a person is unable to wear a face mask. Contrary to Plaintiff’s contention, however, none of these mandates ‘allowed’ or ‘required’ United to permit him to work without a face mask. Plaintiff’s employer, United, is the entity responsible for making that decision, and in this case, United made the reasonable business decision to require every employee wear a face mask without exception. See Giles v. Sprouts Farmers Market, Inc., 2021 WL 2072379 at 6 (public health documents’ references to mask exceptions for those who have problems breathing not germane to business decision weighing risk of infection).”

 The case is Bezzina v. United Airlines, Inc., 22-55293.


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