                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              JAN 27 2010

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

NANCY WALRAVEN,                                  No. 08-16496

             Plaintiff - Appellant,              D.C. No. 2:06-cv-00864-FJM

  v.
                                                 MEMORANDUM *
TIMOTHY G. GEITHNER, Secretary of
The Department of the Treasury,

             Defendant - Appellee,

  v.

MICHAEL L. BUESGENS,

             Plaintiff - Intervenor.


                   Appeal from the United States District Court
                            for the District of Arizona
                  Frederick J. Martone, District Judge, Presiding

                           Submitted January 11, 2010**
                             San Francisco, California



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes that this case is suitable for
decision without oral argument. See Fed. R. App. P. 34(a)(2).
Before: WALLACE, HUG and CLIFTON, Circuit Judges.

      Nancy Walraven appeals from the district court’s grant of summary

judgment for the Secretary of the Treasury (“defendant”) on Walraven’s claim of

discrimination based on her disability under the Rehabilitation Act of 1973, 29

U.S.C. § 791 et seq. We have jurisdiction under 28 U.S.C. § 1291. We review de

novo, Walton v. U.S. Marshals Serv., 492 F.3d 998, 1005 (9th Cir. 2007), and we

affirm.1

      The district court properly granted defendant’s summary judgment motion

because Walraven failed to establish a prima facie case of discrimination under the

Rehabilitation Act. To state a prima facie case under the Rehabilitation Act, a

plaintiff must demonstrate that (1) she is a person with a disability, (2) who is

otherwise qualified for the position, and (3) suffered discrimination because of her

disability. Id. To demonstrate she is “qualified” for the position, a plaintiff must

show she is able to perform the essential functions of the position at the time of the

discrimination with or without reasonable accommodation. Dark v. Curry County,

451 F.3d 1078, 1086 (9th Cir. 2006); Vinson v. Thomas, 288 F.3d 1145, 1152 n.7

      1
         Walraven makes a statement in her opening brief that a Title VII claim for
discrimination based on sexual orientation should not have been dismissed. To the
extent that this constitutes an appeal, it is denied because no argument is presented
on this issue. See Miller v. Fairchild Indus., Inc., 797 F.2d 727, 738 (9th Cir.
1986).

                                     Page 2 of 4
(9th Cir. 2002); Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1112

(9th Cir. 2000).

       Walraven failed to establish a prima facie case because she did not

demonstrate that she was a qualified individual who could perform the essential

functions of her position as a Tax Resolution Representative. According to the

government’s job description and her supervisor’s testimony, Walraven’s position

required direct contact with the public and this was an essential function of her

employment. The undisputed medical evidence established that Walraven’s mental

health conditions made her unsuited for direct contact with the public. Because the

uncontroverted evidence established that Walraven was unable to hold a position

requiring direct contact with the public, and an essential function of her job

required direct contact with the public, the district court did not err in finding that

she could not perform the essential functions of her employment position and

therefore was not a qualified individual under the Rehabilitation Act. See Kaplan

v. City of North Las Vegas, 323 F.3d 1226, 1230-31 (9th Cir. 2003) (holding that

the plaintiff was not a “qualified individual” where the medical evidence showed

that the plaintiff could not perform the essential functions of the employment

position); Weyer, 198 F.3d at 1108-09 (stating a qualified individual must be able

to perform the essential functions of the job).


                                      Page 3 of 4
      Walraven claims that she could have performed the essential functions of her

job with reasonable accommodation, but she fails to reconcile this claim with her

contradictory assertion of total disability before the Merit Systems Protection

Board, which granted her disability retirement benefits. To defeat summary

judgment, Walraven would have had to offer an explanation “sufficient to warrant

a reasonable juror’s concluding that, assuming the truth of, or the plaintiff’s good-

faith belief in, the earlier statement, the plaintiff could nonetheless ‘perform the

essential functions’ of her job, with or without ‘reasonable accommodation.’” See

Cleveland v. Policy Management Sys. Corp., 526 U.S. 795, 807 (1999).

      The district court therefore did not err in entering summary judgment in

defendant’s favor.

      AFFIRMED.




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