NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 26 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LIDIA G. JABLONSKI, No. 17-15494
Plaintiff-Appellant, D.C. No.
2:13-cv-01510-JAD-VCF
v.
WALMART INC., MEMORANDUM*
Defendant-Appellee.
Appeal from the United States District Court
for the District of Nevada
Jennifer A. Dorsey, District Judge, Presiding
Submitted April 13, 2018**
San Francisco, California
Before: KLEINFELD, W. FLETCHER, and TALLMAN, Circuit Judges.
Plaintiff-Appellant Lidia Jablonski appeals the district court’s grant of
summary judgment in favor of Defendant-Appellee WalMart Stores, Inc. on her
claims under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12111 et
seq., and Nevada state law. We have jurisdiction pursuant to 28 U.S.C. § 1291.
*
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).
After reviewing the district court’s grant of summary judgment de novo, Smith v.
Clark Cty. Sch. Dist., 727 F.3d 950, 954 (9th Cir. 2013), we affirm.
1. Even assuming that Jablonski made out a prima facie case of
disability discrimination, her ADA discrimination claim fails. WalMart articulated
a non-discriminatory rationale for firing Jablonski: after she returned from about
twenty weeks of leave and her Temporary Alternate Duty (TAD) period ended, she
refused to take the only vacant position in the store. See Godwin v. Hunt Wesson,
Inc., 150 F.3d 1217, 1220 (9th Cir. 1998). Jablonski failed to carry her burden of
showing that this rationale was a pretext for discrimination. See id. Her
supervisor’s assertion that Jablonski was “no longer job protected” was a factual
statement regarding the provisions of WalMart’s written leave policy, not direct
evidence that “proves the fact [of discriminatory animus] without inference or
presumption.” See id. at 1221. Therefore, Jablonski was required to present
“specific and substantial” indirect evidence of pretext, see id. at 1222, which she
failed to do.
2. WalMart attempted to accommodate Jablonski and adequately
engaged in the interactive process. See 29 C.F.R. § 1630.2(o)(3); Zivkovic v. S.
Cal. Edison Co., 302 F.3d 1080, 1089 (9th Cir. 2002). Jablonski filed leave
requests and submitted medical records to WalMart. WalMart officials
corresponded with her about her leave, granted multiple leave requests, and spoke
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to her about her future position. WalMart offered Jablonski several
accommodations: personal leave when she ran out of FMLA leave, a ninety-day
TAD position that accommodated her medical restrictions, and eventually a
permanent cashier position—which she rejected. Jablonski argues that WalMart
should have transferred her to another store. But she did not ask to be transferred
at the time, and she has not presented any evidence that there were vacant positions
for which she was qualified at other stores. Therefore, she has not met her burden
of “showing the existence of a reasonable accommodation that would have enabled
[her] to perform the essential functions of an available job.” See Dark v. Curry
Cty., 451 F.3d 1078, 1088 (9th Cir. 2006).
3. Nor has Jablonski made out a prima facie case of ADA retaliation1
because she has not linked her termination to any protected activity. See 42 U.S.C.
§ 12203(a); Pardi v. Kaiser Found. Hosps., 389 F.3d 840, 849 (9th Cir. 2004).
Notifying WalMart of her return to Maximum Medical Improvement was part of
the process of Jablonski returning to work, not a pursuit of her rights under the
ADA. See Pardi, 389 F.3d at 850. There also is no evidence that Jablonski
complained of discriminatory treatment on the basis of her disability or otherwise
1
Jablonski initially styled this as a “coercion” claim, but the district court
(correctly, in our view) construed it as a retaliation claim. Jablonski did not object
to that recharacterization on appeal, so we have also analyzed it as an ADA
retaliation claim.
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attempted to vindicate her ADA rights before she was fired.
Even if Jablonski had made out a prima facie case, her retaliation claim
would fail for the same reason her discrimination claim fails: WalMart articulated
a non-retaliatory reason for firing her, and she failed to offer any evidence that its
rationale was pretextual. See id. at 849. The fact that WalMart ended Jablonski’s
TAD period when it did is hardly evidence of retaliation, given that TAD
assignments are limited to a maximum of ninety days. And Jablonski’s
supervisor’s comment about Jablonski not being “job protected” is not evidence of
retaliatory intent any more than it is evidence of discriminatory intent.
4. Jablonski’s state-law tortious-discharge claim fails because she has
not raised a genuine issue of material fact regarding whether her filing of a
worker’s compensation claim was “the proximate cause” of her termination. See
Allum v. Valley Bank of Nev., 970 P.2d 1062, 1066 (Nev. 1998). WalMart retained
Jablonski for ten months after she filed a worker’s compensation claim, and it
would have continued her employment had she accepted the cashier position.
Furthermore, WalMart presented evidence that it fired her for a non-retaliatory
reason, and “recovery for retaliatory discharge under [Nevada] law may not be had
upon a ‘mixed motives’ theory.” See id.
Costs are awarded to the Appellees.
AFFIRMED.
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