NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 2 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARILYN GLADLE, No. 16-56073
Plaintiff-Appellant, D.C. No. 2:15-cv-00057-CAS-FFM
v.
MEMORANDUM**
DAVID J. SHULKIN*, U.S. Department of
Veterans Affairs,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Christina A. Snyder, District Judge, Presiding
Submitted October 23, 2017***
Before: LEAVY, WATFORD, and FRIEDLAND, Circuit Judges.
Marilyn Gladle appeals pro se from the district court’s judgment dismissing
her action alleging violations of the Rehabilitation Act of 1973. We have
*
David J. Shulkin has been substituted for his predecessor, Robert
McDonald, as Secretary of Veterans Affairs under Fed. R. App. P. 43(c)(2).
**
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).
jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal for failure to
state a claim under Federal Rule of Civil Procedure 12(b)(6). Barker v. Riverside
Cty. Office of Educ., 584 F.3d 821, 824 (9th Cir. 2009). We affirm in part, reverse
in part, and remand.
The district court properly dismissed Gladle’s retaliation claim because
Gladle failed to allege facts sufficient to identify the individuals who engaged in
the alleged adverse employment actions or show that those individuals were aware
of her protected activities. See Coons v. Sec’y of U.S. Dep’t of Treasury, 383 F.3d
879, 887 (9th Cir. 2004) (setting forth elements for a retaliation claim under the
Rehabilitation Act).
The district court properly dismissed Gladle’s harassment claim because
Gladle failed to allege facts sufficient to state any cognizable claim. See Hebbe v.
Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010) (although pro se pleadings are to be
liberally construed, a plaintiff must still present factual allegations sufficient to
state a plausible claim for relief).
The district court dismissed Gladle’s denial of reasonable accommodation
claim because Gladle failed to allege that participation in the emergency drill was
related to the essential functions of her job. However, Gladle’s allegations that she
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asked the employer if there was anything she could do other than get under her
desk and that the employer refused to consider alternatives are sufficient to show
that Gladle requested a reasonable accommodation for her disability and the
employer refused to participate in the interactive process. See Vinson v. Thomas,
288 F.3d 1145, 1154 (9th Cir. 2002) (setting forth elements for a reasonable
accommodation claim under the Rehabilitation Act); Buckingham v. United States,
998 F.2d 735, 740 n.3 (9th Cir. 1993) (“[W]e have found nothing in the
[Rehabilitation] Act or its legislative history to indicate that Congress intended to
limit the employer’s duty of reasonable accommodation to the facilitation of
employment tasks.”). We therefore reverse the dismissal of Gladle’s reasonable
accommodation claim regarding the emergency drill and remand for further
proceedings on this claim.
We reject as meritless Gladle’s contentions regarding the dismissal of her
retaliation and harassment claims in her prior complaints.
We reject as unsupported by the record Gladle’s contentions that the district
court converted the motion to dismiss into a motion for summary judgment,
violated her due process rights, or denied her access to the courts.
Gladle’s request to strike defendant’s answering brief, set forth in her
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opening brief, is denied.
The parties shall bear their own costs on appeal.
AFFIRMED in part, REVERSED in part, and REMANDED.
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