Madeline Van Wagenen v. Kirstjen Nielsen

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 23, 2019
• Docket: 17-56700
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 23 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MADELINE VAN WAGENEN, No. 17-56700

Plaintiff-Appellant, D.C. No. 8:15-cv-00344-CJC-DFM

v. MEMORANDUM* KIRSTJEN NIELSEN, Secretary, Department of Homeland Security,

Defendant-Appellee.

Appeal from the United States District Court for the Central District of California Cormac J. Carney, District Judge, Presiding

Submitted January 15, 2019**

Before: TROTT, TALLMAN, and CALLAHAN, Circuit Judges.

Madeline Van Wagenen appeals pro se from the district court’s summary

judgment in her employment action alleging violations of the Rehabilitation Act

(“RA”) and Title VII. We have jurisdiction under 28 U.S.C. § 1291. We review

de novo, Hawn v. Exec. Jet Mgmt., Inc., 615 F.3d 1151, 1155 (9th Cir. 2010), and

* 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). we affirm.

The district court properly granted summary judgment on Van Wagenen’s

disability discrimination and failure-to-accommodate claims under the RA because

Van Wagenen failed to raise a genuine dispute of material fact as to whether

shecould perform the essential functions of her job as an asylum officer. See

Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002) (to succeed on a RA

disability discrimination claim, plaintiff must be a “qualified individual”); Weyer v.

Twentieth Century Fox Film Corp., 198 F.3d 1104, 1112 (9th Cir. 2000) (a

“qualified individual” is an employee who “must be able to perform the essential

functions of employment at the time that one is discriminated against in order to

bring suit”); Buckingham v. United States, 998 F.2d 735, 739-41 (9th Cir. 1993)

(under the RA, an employer has an affirmative obligation to provide reasonable

accommodations to qualified individuals with disabilities); see also Coons v. Sec’y

of U.S. Dep’t of Treasury, 383 F.3d 879, 884 (9th Cir. 2004) (standards for

evaluating discrimination claim under RA).

The district court properly granted summary judgment on Van Wagenen’s

Title VII retaliation claim because Van Wagenen failed to raise a genuine dispute

of material fact as to whether defendant’s proffered legitimate, non-retaliatory

reasons for terminating Van Wagenen’s employment were pretextual. See Surrell

v. Cal. Water Serv. Co., 518 F.3d 1097, 1108 (9th Cir. 2008) (elements of a

2 17-56700 retaliation claim under Title VII); Stegall v. Citadel Broad. Co., 350 F.3d 1061,

1066, 1069-70 (9th Cir. 2004) (circumstantial evidence of pretext must be specific

and substantial).

The district court properly granted summary judgment on Van Wagenen’s

claim under the Family and Medical Leave Act (“FMLA”) because Van Wagenen

does not have a private right of action as a federal employee with more than twelve

months of service. See Russell v. U.S. Dep’t of the Army, 191 F.3d 1016, 1018-19

(9th Cir. 1999) (no private right of action under the FMLA for federal employees

with more than twelve months of service).

We do not consider matters not specifically and distinctly raised in the

opening brief, or arguments and allegations raised for the first time on appeal. See

Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009). We do not consider

documents not presented to the district court. See United States v. Elias, 921 F.2d

870, 874 (9th Cir. 1990) (“Documents or facts not presented to the district court

are not part of the record on appeal.”).

Van Wagenen’s motion to supplement the record (Docket Entry No. 9) is

denied.

AFFIRMED.

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