                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            JUL 14 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


PAUL ZINTER,                                     No. 14-35287

              Plaintiff - Appellant,             D.C. No. 3:12-cv-02272-MO

 v.
                                                 MEMORANDUM*
PORTLAND STATE UNIVERSITY,

              Defendant - Appellee.


                  Appeal from the United States District Court
                           for the District of Oregon
               Michael W. Mosman, Chief District Judge, Presiding

                              Submitted July 7, 2016**
                                 Portland, Oregon

Before: BEA, and OWENS, Circuit Judges, and BURNS,*** 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 this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
            The Honorable Larry A. Burns, United States District Judge for the
Southern District of California, sitting by designation.
      Paul Zinter (“Zinter”) appeals from the district court’s order granting

summary judgment in favor of Portland State University (“PSU”). We have

jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

      1. The district court did not err in granting summary judgment in favor of

PSU on Zinter’s failure to accommodate claim. To establish a prima facie case of

disability discrimination under the ADA, a plaintiff must prove that: (1) he is

disabled, (2) he is qualified, and (3) he suffered an adverse employment action

because of his disability. See Snead v. Metro. Prop. & Cas. Ins. Co., 237 F.3d

1080, 1087 (9th Cir. 2001). Assuming arguendo that Zinter has shown a triable

issue of fact on the first two prongs, Zinter has not shown that there is a triable

issue of fact that he suffered an adverse employment action because of his

disability. Zinter does not dispute that he overstated his hours on his time sheet in

July. And Zinter’s own deposition testimony proves that even if Zinter could not

remember what hours he worked due to his multiple sclerosis (“MS”), he did know

that he was unsure of what hours he worked in July, yet he still certified the time

sheet as accurate. This dishonesty is why Zinter was fired.

      2. To the extent that it is a separate claim, the district court did not err in

granting summary judgment in favor of PSU on Zinter’s claim that PSU failed to

engage in an interactive process with Zinter to determine if there was a reasonable


                                            2
accommodation for him. See Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1089

(9th Cir. 2002). The record undisputedly shows that PSU was actively engaged

with Zinter from the beginning to determine whether his misconduct was related to

his disability, and whether there was any reasonable accommodation that could

have been made. This is not a case where PSU simply terminated Zinter upon

discovering his misconduct without any dialogue at all.

      3. The district court did not err in granting summary judgment in favor of

PSU on Zinter’s state law invasion of privacy claim. See Mauri v. Smith, 324 Or.

476, 483-84 (1996). The undisputed facts show that Zinter provided his medical

information in the form of correspondence from his healthcare providers to PSU at

his pre-dismissal hearing. Zinter’s own deposition testimony shows that Zinter

wanted and expected PSU to contact his healthcare providers to discuss Zinter’s

medical issues. Thus, there was no actionable intrusion into Zinter’s private affairs

that a reasonable person would find highly offensive. See id. at 484.

      AFFIRMED.




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