FILED
NOT FOR PUBLICATION DEC 14 2009
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
FABIAN VAKSMAN, No. 08-35771
Plaintiff - Appellant, D.C. No. 2:07-cv-00225-FVS
v.
MEMORANDUM *
MICHAEL B. DONLEY, Secretary,
Department of the Air Force,
Defendant - Appellee.
Appeal from the United States District Court
for the Eastern District of Washington
Fred L. Van Sickle, District Judge, Presiding
Submitted November 17, 2009 **
Before: ALARCÓN, TROTT, and TASHIMA, Circuit Judges.
Fabian Vaksman appeals pro se from the district court’s summary judgment
for defendant in his action under the Rehabilitation Act, 29 U.S.C. § 791, et seq.,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
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alleging that he was unlawfully terminated based on his disability. We have
jurisdiction under 28 U.S.C. § 1291. We review de novo. Walton v. U.S. Marshals
Serv., 492 F.3d 998, 1005 (9th Cir. 2007). We affirm.
The district court properly concluded that Vaksman failed to demonstrate
that he was “otherwise qualified” for his job because the record shows that he did
not receive a passing score in a required course, and he did not request any
accommodation until after his employment was terminated. See id. (“To state a
prima facie case under the Rehabilitation Act, a plaintiff must demonstrate that (1)
[he] is a person with a disability, (2) who is otherwise qualified for employment,
and (3) suffered discrimination because of [his] disability.”); Lucero v. Hart, 915
F.2d 1367, 1372 (9th Cir. 1990) (“An individual is not ‘otherwise qualified’ if [he]
cannot perform the essential functions of [his] job.”); Brown v. Lucky Stores, Inc.,
246 F.3d 1182, 1188 (9th Cir. 2001) (concluding that employer was under no
affirmative obligation to provide an accommodation for employee who never
requested an accommodation).
Vaksman’s remaining contentions are unpersuasive.
Vaksman’s motion to expedite is denied as moot.
AFFIRMED.
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