                                                                              FILED
                             NOT FOR PUBLICATION                              DEC 18 2013

                                                                          MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                              FOR THE NINTH CIRCUIT


LAURA MARTINEZ,                                  No. 12-15477

                Plaintiff - Appellant,           D.C. No. 2:09-cv-01354-RLH-RJJ

  v.
                                                 MEMORANDUM*
ERIC K. SHINSEKI, Secretary
Department of Veteran Affairs,

                Defendant - Appellee.


                     Appeal from the United States District Court
                              for the District of Nevada
                    Roger L. Hunt, Senior District Judge, Presiding

                     Submitted December 6, 2013**
                       San Francisco, California
Before: TROTT and MURGUIA, Circuit Judges, and EZRA, 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 David A. Ezra, District Judge for the U.S. District
Court for the Western District of Texas, sitting by designation.
      The record conclusively demonstrates that Martinez was terminated not

because of her disability, but because she refused to respond to multiple

appropriate requests by the Veterans Administration’s Occupational Health Unit to

register for e-QIP. Moreover, as the EEOC said, “[W]e note that petitioner does

not dispute that she did not comply with the agency’s request for additional

information” regarding her request to be relieved of her e-QIP duties. Even when

confronted with a Notice of Proposed Removal, she did not respond as requested.

      Accordingly, because these facts were undisputed, summary judgment was

proper with respect to her claim of unlawful discrimination. See Humphrey v.

Mem’l Hosps. Ass’n, 239 F.3d 1128, 1133 (9th Cir. 2001) (“[T]he plaintiff must

establish that [s]he is . . . ‘an individual with a disability who, with or without

reasonable accommodation, can perform the essential functions of the employment

position that such individual holds or desires.’” (quoting 42 U.S.C. § 12111(8)).

      Martinez’s assertions of retaliation are equally devoid of any factual support.

      AFFIRMED.




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