GAMBINI v. TOTAL RENAL CARE, INC.
The Ninth Circuit Court of Appeals today released an opinion in GAMBINI v. TOTAL RENAL CARE, INC., No. 05-35209, a federal appeal. The panel consisted of Alfred T. Goodwin and Alex Kozinski, Circuit Judges, and Milton I. Shadur, Senior District Judge.
SHADUR, Senior District Judge:
Stephanie Gambini (”Gambini”) appeals the district court’s denial of her renewed motion, alternatively seeking judgment . . .
After review of (a) the petition for rehearing filed by appellee Total Renal Care Inc. d/b/a DaVita, Inc. (”DaVita”), coupled with its motion to withdraw a portion of our opinion and to certify a question to the Washington Supreme Court, and (b) the motion by Washington Retail Association for leave to file a brief amicus curiae in support of that petition and motion, we:
1. deny DaVita’s petition for rehearing and its accompanying motion; 2. grant leave to file the amicus curiae brief; and 3. amend our opinion filed on March 8, 2007, slip op. 2685, by inserting the following two paragraphs at page 2697, after line 6 and immediately above the caption “Failure To Offer Instruction on `Direct Threat’ Defense”:
In its petition for rehearing, which has been joined by an amicus brief, DaVita argues that “[n]either the Riehl nor Humphrey Courts state or imply that arguably disabled employees are entitled to absolute protection regardless of their transgressions against the employer, let alone more protection than would be afforded a non-disabled employee for the same misconduct.” But the law often does provide more protection for individuals with disabilities. Unlike other types of discrimination where identical treatment is the gold standard, identical treatment is often not equal treatment with respect to disability discrimination–see, e.g., Holland v. Boeing Co., 583 P.2d 621, 623 (Wash. 1978) (en banc) (”Identical treatment may be a source of discrimination in the case of the handicapped, whereas different treatment may eliminate discrimination against the . . .