NOT FOR PUBLICATION FILED
NOV 7 2016
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LETICIA CEJA-CORONA, No. 14-16654
Plaintiff - Appellant, D.C. No. 1:12-cv-01703-AWI-
SAB
v.
CVS PHARMACY, INC., MEMORANDUM*
Defendant - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, District Judge, Presiding
Submitted October 17, 2016**
San Francisco, California
Before: GRABER and MURGUIA, Circuit Judges, and BENNETT,*** District
Judge.
*
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. Fed. R. App. P. 34(a)(2).
Plaintiff Leticia Ceja-Corona timely appeals the judgment in favor of
Defendant CVS Pharmacies, Inc. (“CVS”). Ceja-Corona brought several claims
under California’s Fair Employment and Housing Act (“FEHA”), and two non-
FEHA claims for wrongful termination and unfair competition, both under
California law. Jurisdiction was premised on diversity. Reviewing de novo the
grant of summary judgment, Weiner v. San Diego Cty., 210 F.3d 1025, 1028 (9th
Cir. 2000), we affirm.
1. A FEHA claim for disability discrimination requires a plaintiff to establish
qualification for statutory protection. Green v. State, 165 P.3d 118, 123 (Cal.
2007). To do so the employee must demonstrate the ability to perform the essential
functions of the job with (or without) a reasonable accommodation. Id. at 119.
Reasonable accommodations can include restructuring current responsibilities—if
essential functions are not eliminated. Nealy v. City of Santa Monica, 234 Cal.
App. 4th 359, 375 (2015). Reasonable accommodations can also include
reassignment to another vacant position—if such a position exists. See Cleveland v.
Policy Mgmt. Sys. Corp., 526 U.S. 795, 803 (1999). Ceja-Corona cannot
demonstrate that a reasonable accommodation was available. She has admitted that
she could not perform the responsibilities of the position that she last held, or of
***
The Honorable Mark W. Bennett, United States District Judge for the
District of Iowa, sitting by designation.
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the other positions that she had held. She has also failed to point to any specific
vacant position to which she could have been reassigned. Ceja-Corona failed to
identify facts sufficient to survive summary judgment. Fairbank v. Wunderman
Cato Johnson, 212 F.3d 528, 531 (9th Cir. 2000). Absent a genuine issue for trial
on the fact of a reasonable accommodation, Ceja-Corona’s claim for disability
discrimination fails. Green v. State, 165 P.3d 118, 126 (Cal. 2007)
2. A FEHA claim for failure to accommodate requires a plaintiff to
demonstrate, among other things, that a reasonable accommodation existed. See
Nadaf-Rahrov v. Neiman Marcus Grp., Inc., 166 Cal. App. 4th 952, 975 (2008).
Ceja-Corona’s claim for failure to accommodate fails because she cannot make this
demonstration.
3. California courts recognize that employees may have access to less
information than their employers about vacant positions, and that this lack of
access can pose a challenge for an employee during the interactive process. Scotch
v. Art Inst. of Cal.-Orange Cty., Inc., 173 Cal. App. 4th 986, 1018 (2009).
Nonetheless, litigation allows an employee to correct that imbalance through
discovery. Nealy, 234 Cal. App. 4th at 379. Employees bringing a claim for a
failure to engage in the interactive process are therefore required to show that a
reasonable accommodation existed, at least by the summary judgment stage. Id.
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Ceja-Corona cannot establish that a reasonable accommodation existed, so this
claim fails.
4. A FEHA claim for failure to prevent discrimination requires a plaintiff to
demonstrate, among other things, that discrimination occurred. See Trujillo v. N.
Cty. Transit Dist., 63 Cal. App. 4th 280, 286, 288–89 (1998) (holding that there is
no failure to prevent discrimination if discrimination did not occur). Ceja-Corona
cannot establish that a reasonable accommodation existed and thus cannot establish
discrimination occurred in violation of FEHA. Her claim for failure to prevent
discrimination therefore fails.
5. Assuming without deciding that Ceja-Corona made out a prima facie case of
retaliation, CVS offered a legitimate, non-retaliatory reason for terminating Ceja-
Corona: no reasonable accommodation existed. Ceja-Corona then bore the burden
to establish intentional retaliation or to show that CVS’ reason was pretextual.
Scotch, 173 Cal. App. 4th at 1021. Her retaliation claim fails because she did not
meet this burden.
6. Ceja-Corona’s wrongful termination claim requires a predicate violation of
FEHA. Stevenson v. Superior Court, 941 P.2d 1157, 1158, 1171–72 (Cal. 1997);
see also Esberg v. Union Oil Co., 47 P.3d 1069, 1071 (Cal. 2002). Ceja-Corona’s
unfair competition claim also requires a predicate violation of FEHA. See Bothwell
v. Abbott Labs., Inc. (In re The Vaccine Cases), 134 Cal. App. 4th 438, 457 (2005).
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Ceja-Corona cannot prevail on either claim because she did not establish a
violation of FEHA.
AFFIRMED.
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