FILED
NOT FOR PUBLICATION MAY 11 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KAREN THOMAS, an individual, No. 09-56940
Plaintiff - Appellant, D.C. No. 2:09-cv-00474-RGK-E
v.
MEMORANDUM*
FEDERAL EXPRESS CORPORATION, a
corporation, DBA Fedex Express,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Argued and Submitted May 2, 2011
Pasadena, California
Before: PREGERSON, FISHER, and BERZON, Circuit Judges.
Karen Thomas appeals the district court’s grant of summary judgment
dismissing various claims she brought against her former employer, the Federal
Express Corporation. We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1. Thomas has not raised a triable issue of fact supporting her claim that
Federal Express failed reasonably to accommodate her disability in violation of
Cal. Gov. Code § 12940(m). She adduced no evidence that she was capable of
performing the essential functions of any job at Federal Express, even with
reasonable accommodation. See, e.g., Scotch v. Art Inst. of Cal.-Orange Cnty.,
Inc., 93 Cal. Rptr. 3d 338, 358 (Cal. Ct. App. 2009).
Bennett’s expert report does not establish a triable issue of fact on this claim,
because it neither explains how Thomas could have performed the essential
functions of any job, nor does it indicate how any position could have been
modified to accommodate Thomas’s disability. Thomas advances no other
evidence refuting Federal Express’s assertions that it was unable to reassign her to
a vacant position given the severity of her disability-related work restrictions. See
Raine v. City of Burbank, 37 Cal. Rptr. 3d 899, 904 (Cal. Ct. App. 2006) (“A
reassignment, however, is not required if there is no vacant position for which the
employee is qualified.” (quotations omitted)).
Federal Express also did not fail reasonably to accommodate Thomas’s
disability by not holding open the jobs for which Thomas applied longer than it
did. Thomas was not released to work when she expressed interest in those
positions, and she provided no indication of when she might be released.
-2-
Moreover, Federal Express adduces evidence that once she submitted her
disability-related work restrictions, they were incompatible with those positions.
Thomas offers no explanation for why that conclusion is not true.
Nor was it a violation for Federal Express not to extend the 30-month
medical leave period. According to the medical documentation provided by Dr.
Capen, Thomas’s disability was permanent. Thomas has not advanced any
evidence on the basis of which Federal Express reasonably could have inferred her
work restrictions would be modified, and nothing suggests that extending the leave
period could have helped her find a suitable position. See Hanson v. Lucky Stores,
Inc., 87 Cal. Rptr. 2d 487, 494 (Cal. Ct. App. 1999) (“[A]n employer is not
required to offer an accommodation that is likely to be futile because, even with
accommodation, the employee could not safely and efficiently perform the
essential functions of the job.” (quotation omitted)).
Because Federal Express had no reason to think Thomas’s restrictions would
be modified, it was not required to assign Thomas to temporary light-duty work, as
employers are not obligated to transform temporary light-duty assignments into
permanent positions. See Raine, 37 Cal. Rptr. 3d at 908.
2. Thomas also has not raised a genuine issue of material fact as to whether
Federal Express failed “to engage in a timely, good faith, interactive process” to
-3-
determine if any reasonable accommodation could be made. See Cal. Gov. Code
§ 12940(n).
Federal Express actively assisted Thomas in seeking a suitable position, but
its efforts were hampered by Thomas’s delays in obtaining medical documentation
releasing her to work. Federal Express continued to assist Thomas once she
provided her disability-related work restrictions, but neither party was able to
identify a vacant position Thomas could perform, even with reasonable
accommodation. Because Federal Express was not to blame for any breakdown in
the interactive process, it is not liable. See Dep’t of Fair Emp’t & Hous. v. Lucent
Techs., Inc., --- F.3d ----, 2011 WL 1549232, at *7 (9th Cir. Apr. 26, 2011).
Robbins’s expert report is not to the contrary. The evidence establishes that
once aware of Thomas’s restrictions, Federal Express engaged in the very process
Robbins recommended.
3. Because Thomas adduced no evidence that she could perform the
essential functions of any job at Federal Express, even with reasonable
accommodation, her claim of disability discrimination fails as well. See Green v.
State, 165 P.3d 118, 123 (Cal. 2007) (“[I]n order to establish that a defendant
employer has discriminated on the basis of disability in violation of the FEHA, the
-4-
plaintiff employee bears the burden of proving he or she was able to do the job,
with or without reasonable accommodation.”).
4. As Thomas does not have a viable discrimination claim, her claim that
Federal Express failed to take all reasonable steps to prevent discrimination, in
violation of Cal. Gov. Code § 12940(k), also fails. See Dep’t of Fair Emp’t, ---
F.3d ----, 2011 WL 1549232, at *12 (citing Trujillo v. N. Cnty. Transit Dist., 73
Cal. Rptr. 2d 596, 602 (Cal. Ct. App. 1998)).
5. Finally, because there are no genuine issues of material fact remaining as
to any of Thomas’s other claims, the district court properly granted summary
judgment in favor of Federal Express on Thomas’s claim that she was wrongfully
terminated in violation of public policy. See id.
AFFIRMED
-5-