NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 15 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANNA MARKOWITZ, an individual, No. 16-56083
Plaintiff-Appellant, D.C. No.
8:15-cv-01367-AG-DFM
v.
UNITED PARCEL SERVICE, INC., an MEMORANDUM*
Ohio corporation and DOE, 1 - 50 inclusive,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Andrew J. Guilford, District Judge, Presiding
Submitted February 13, 2018**
Pasadena, California
Before: McKEOWN and WARDLAW, Circuit Judges, and QUIST,*** District
Judge.
Anna Markowitz appeals the district court’s grant of summary judgment in
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Gordon J. Quist, United States District Judge for the
Western District of Michigan, sitting by designation.
favor of United Parcel Service (“UPS”), regarding her claims for disability
discrimination, failure to accommodate, and failure to engage in the interactive
process under the California Fair Employment and Housing Act (“FEHA”), and for
wrongful termination. See Cal. Gov’t Code § 12940. Because the parties are
familiar with the facts, we do not recite them here. We have jurisdiction under 28
U.S.C. § 1291. We affirm.
We review de novo a district court’s grant of summary judgment. Branch
Banking & Tr. Co. v. D.M.S.I., LLC, 871 F.3d 751, 759 (9th Cir. 2017).
Markowitz fails to raise a triable issue for disability discrimination under
FEHA. See Arteaga v. Brink’s, Inc., 163 Cal. App. 4th 327, 344–45 (2008).
FEHA “does not prohibit an employer from . . . discharging an employee with a
physical or mental disability . . . if the employee . . . is unable to perform [his or
her] essential duties even with reasonable accommodations.” Cal. Govt. Code §
12940(a)(1); see also Green v. State, 42 Cal. 4th 254, 262 (2007).
The opinions of three doctors, as well as Markowitz’s own testimony,
establish that she could not work at all relevant times. From April 2013 to May
2014, Markowitz took nearly thirteen months of leave. Throughout this period,
medical professionals and Markowitz herself indicated she was completely unable
to work. For example, Dr. Sandhya Gudapati concluded Markowitz was unable to
work repeatedly throughout the time period from July 25, 2013 to July 3, 2014.
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Dr. David Brendel concluded that Markowitz was “totally and temporarily disabled
due to work-related psychological stress and strain secondary-to-work related
injuries” during his examinations beginning on May 20, 2014.
Markowitz’s disability discrimination claim is also precluded by judicial
estoppel. See Drain v. Betz Labs., Inc., 69 Cal. App. 4th 950, 959 (1999). During
workers’ compensation proceedings, Markowitz asserted that she could not work.
Based in part on that assertion, Markowitz was awarded a payout of $26,000. Her
claim now that she was able to work during the relevant time period “flatly
contradicts both her prior sworn statements and the medical evidence,” and
therefore fails to create a genuine issue of fact for trial. See Kennedy v. Applause,
Inc., 90 F.3d 1477, 1481 (9th Cir. 1996).
Markowitz’s failure to accommodate claim is unavailing because she was
not a qualified individual and UPS did not fail to accommodate her disability. See
Cuiellette v. City of L.A., 194 Cal. App. 4th 757, 766 (2011). Markowitz failed to
request other forms of accommodation beyond leave. Employers are not required
to provide indefinite leaves of absence. 2 Cal. Code Regs. 11068(c); see Dark v.
Curry Cty., 451 F.3d 1078, 1090 (9th Cir. 2006). And while apparently not raised
below, Markowitz’s argument on appeal that UPS failed to accommodate her
request for a transfer fails because UPS responded by providing her a new shift
working with a different management team.
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Markowitz’s failure to engage in the interactive process claim likewise fails.
Markowitz was responsible to “identify [her] disability and resulting limitations,”
and to “suggest the reasonable accommodations” she sought. Scotch v. Art Inst. of
California-Orange Cty., Inc., 173 Cal. App. 4th 986, 1013 (2009) (citation and
internal quotation marks omitted). UPS did engage with Markowitz, granting her
multiple extensions for her leave of absence. UPS had no obligation to take further
steps to come up with reasonable accommodations until Markowitz gave some
indication that she would be able to return to work in any capacity.
Finally, Markowitz’s claims for wrongful termination in violation of public
policy fail for the same reasons that her underlying claims for disability
discrimination and failure to engage in the interactive process under FEHA fail.
Hanson v. Lucky Stores, Inc., 74 Cal. App. 4th 215, 229–30 (1999).
AFFIRMED.
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