                                                                           FILED
                              NOT FOR PUBLICATION                           DEC 14 2010

                                                                       MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                     U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT

LENORA HUMPHREY-BAKER,                            No. 08-57066

                Plaintiff - Appellant,            D.C. No. 5:07-cv-01093-VAP-JCR

  v.
                                                  MEMORANDUM *
UNITED AIRLINES INC. and DOES 1 -
20,

                Defendants - Appellees.



                     Appeal from the United States District Court
                         for the Central District of California
                     Virginia A. Phillips, District Judge, Presiding

                       Argued and Submitted November 1, 2010
                                Pasadena, California

Before: PREGERSON, RIPPLE,** and GRABER, Circuit Judges.

       Plaintiff Lenora Humphrey-Baker appeals from the summary judgment

entered in favor of Defendant United Airlines Inc. in this diversity case brought

under California’s Fair Employment and Housing Act ("FEHA"). Defendant


            *
         This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       **
        The Honorable Kenneth F. Ripple, Senior United States Circuit Judge for
the Seventh Circuit, sitting by designation.
terminated Plaintiff’s employment after concluding that her disability prevented

her from performing the essential tasks of her job as a customer service

representative, even with a reasonable accommodation. See Green v. State, 165

P.3d 118, 119 (Cal. 2007) (holding that the FEHA protects only employees with a

disability who can perform the essential duties of the job with reasonable

accommodation). On de novo review, Wallis v. J.R. Simplot Co., 26 F.3d 885, 888

(9th Cir. 1994), we reverse and remand.

      Plaintiff testified that her essential duties as a customer service

representative included working at the ticket counter and the gate area only. She

claims that she received no training in how to work at the loading ramp or in the

baggage area, and only occasionally assisted in those areas. Defendant, however,

contends that all four potential job assignments were essential duties of a customer

service representative at the time of Plaintiff’s termination. This dispute creates a

genuine issue of material fact regarding which duties were essential to the

customer service representative position at the time of Plaintiff’s termination.

      Furthermore, the district court erred by refusing to consider the May 8, 2006,

report from Dr. Thorardson, which released Plaintiff to work as of June 13, 2006,

with "no restrictions." If a person can perform the essential duties of a job without

an accommodation, a fortiori she can perform those duties with an accommodation.


                                           2
Viewed in the light most favorable to Plaintiff, the release creates a genuine issue

of material fact as to whether Plaintiff could perform the essential duties of her job

with a reasonable accommodation at the time of her termination.

      Finally, the district court did not abuse its discretion by holding that Plaintiff

is judicially estopped from asserting that she can work without an accommodation.

Johnson v. Oregon, 141 F.3d 1361, 1368–69 (9th Cir. 1998). On remand, the trier

of fact must decide whether Plaintiff could perform the essential duties of her job

with a reasonable accommodation at the time of her termination.

      REVERSED and REMANDED.




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