NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JAN 27 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
NANCY WALRAVEN, No. 08-16496
Plaintiff - Appellant, D.C. No. 2:06-cv-00864-FJM
v.
MEMORANDUM *
TIMOTHY G. GEITHNER, Secretary of
The Department of the Treasury,
Defendant - Appellee,
v.
MICHAEL L. BUESGENS,
Plaintiff - Intervenor.
Appeal from the United States District Court
for the District of Arizona
Frederick J. Martone, District Judge, Presiding
Submitted January 11, 2010**
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes that this case is suitable for
decision without oral argument. See Fed. R. App. P. 34(a)(2).
Before: WALLACE, HUG and CLIFTON, Circuit Judges.
Nancy Walraven appeals from the district court’s grant of summary
judgment for the Secretary of the Treasury (“defendant”) on Walraven’s claim of
discrimination based on her disability under the Rehabilitation Act of 1973, 29
U.S.C. § 791 et seq. 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), and we
affirm.1
The district court properly granted defendant’s summary judgment motion
because Walraven failed to establish a prima facie case of discrimination under the
Rehabilitation Act. To state a prima facie case under the Rehabilitation Act, a
plaintiff must demonstrate that (1) she is a person with a disability, (2) who is
otherwise qualified for the position, and (3) suffered discrimination because of her
disability. Id. To demonstrate she is “qualified” for the position, a plaintiff must
show she is able to perform the essential functions of the position at the time of the
discrimination with or without reasonable accommodation. Dark v. Curry County,
451 F.3d 1078, 1086 (9th Cir. 2006); Vinson v. Thomas, 288 F.3d 1145, 1152 n.7
1
Walraven makes a statement in her opening brief that a Title VII claim for
discrimination based on sexual orientation should not have been dismissed. To the
extent that this constitutes an appeal, it is denied because no argument is presented
on this issue. See Miller v. Fairchild Indus., Inc., 797 F.2d 727, 738 (9th Cir.
1986).
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(9th Cir. 2002); Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1112
(9th Cir. 2000).
Walraven failed to establish a prima facie case because she did not
demonstrate that she was a qualified individual who could perform the essential
functions of her position as a Tax Resolution Representative. According to the
government’s job description and her supervisor’s testimony, Walraven’s position
required direct contact with the public and this was an essential function of her
employment. The undisputed medical evidence established that Walraven’s mental
health conditions made her unsuited for direct contact with the public. Because the
uncontroverted evidence established that Walraven was unable to hold a position
requiring direct contact with the public, and an essential function of her job
required direct contact with the public, the district court did not err in finding that
she could not perform the essential functions of her employment position and
therefore was not a qualified individual under the Rehabilitation Act. See Kaplan
v. City of North Las Vegas, 323 F.3d 1226, 1230-31 (9th Cir. 2003) (holding that
the plaintiff was not a “qualified individual” where the medical evidence showed
that the plaintiff could not perform the essential functions of the employment
position); Weyer, 198 F.3d at 1108-09 (stating a qualified individual must be able
to perform the essential functions of the job).
Page 3 of 4
Walraven claims that she could have performed the essential functions of her
job with reasonable accommodation, but she fails to reconcile this claim with her
contradictory assertion of total disability before the Merit Systems Protection
Board, which granted her disability retirement benefits. To defeat summary
judgment, Walraven would have had to offer an explanation “sufficient to warrant
a reasonable juror’s concluding that, assuming the truth of, or the plaintiff’s good-
faith belief in, the earlier statement, the plaintiff could nonetheless ‘perform the
essential functions’ of her job, with or without ‘reasonable accommodation.’” See
Cleveland v. Policy Management Sys. Corp., 526 U.S. 795, 807 (1999).
The district court therefore did not err in entering summary judgment in
defendant’s favor.
AFFIRMED.
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