                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           FEB 19 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


MELANIE RINCON,                                  No. 13-16845

              Plaintiff - Appellant,             D.C. No. 3:12-cv-04158- MEJ

 v.
                                                 MEMORANDUM*
AMERICAN FEDERATION OF STATE,
COUNTY AND MUNICIPAL
EMPLOYEES,

              Defendants - Appellees.


                   Appeal from the United States District Court
                      for the Northern District of California
                  Maria-Elena James, Magistrate Judge, Presiding

                    Argued and Submitted November 19, 2015
                            San Francisco, California

Before: MELLOY,** IKUTA, and HURWITZ, Circuit Judges.

      Melanie Rincon worked as an organizer for AFSCME. She received three

separate extended leaves of absence of twelve months, six months, and fifteen months


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable Michael J. Melloy, Senior Circuit Judge for the U.S.
Court of Appeals for the Eighth Circuit, sitting by designation.
due, initially, to a work-related injury and, later, to “chronic fatigue syndrome,

fibromyalgia, recurrent migraine headaches, insomnia, and hypertension.”       Rincon

remained in paid status during the third leave period due to a leave-share program. Her

third leave period ended when AFSCME terminated her employment.



      Rincon sued, alleging ADA and FMLA claims, similar state-law claims, and

state and federal discrimination, retaliation, and overtime-pay claims. The district

court granted summary judgment against the FMLA and related state claims,

concluding AFSCME went far out of its way to provide leave time substantially

exceeding anything required by law or by Rincon’s collective bargaining agreement.

We agree with the district court and find that Rincon’s FMLA claims and wrongful

termination claim are wholly without merit and that no reasonable jury could find

otherwise.



      The district court granted summary judgment against Rincon on the ADA and

related state-law claims, holding there was no genuine issue of material fact that

Rincon was not a qualified individual because she could not perform an “essential

function” of her job with or without reasonable accommodation, namely, working

extended hours and six to seven day weeks. Like the district court, we find no


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genuine issue of material fact regarding Rincon’s status as a “qualified individual.”

Johnson v. Bd. of Trs. of Boundary Cnty. Sch. Dist. No. 101, 666 F.3d 561, 564 (9th

Cir. 2011). According to Rincon’s own description of her position, and the position’s

express list of requirements, the essential functions included substantial travel and

work hours in excess of her claimed abilities. Rincon’s evidence that other organizers

received limited accommodations does not change the essential functions analysis,

because those accommodations were either temporary or consistent with extended

hour shifts. Nor does evidence that AFSCME left Rincon’s position open pending her

potential return succeed in creating a genuine dispute of material fact.



      The district court granted summary judgment against Rincon on the

discrimination claim as derivative of the ADA and FMLA claims. The district court

also granted summary judgment against Rincon on the retaliation claim finding a lack

of evidence of pretext because AFSCME had forecast repeatedly its intent to terminate

Rincon’s extended leave. In fact, there was no evidence to suggest pretext other than

arguably suspicious timing. And, although “[t]emporal proximity between protected

activity and an adverse employment action can by itself constitute sufficient

circumstantial evidence of retaliation in some cases,” Bell v. Clackamas Cnty., 341

F.3d 858, 865 (9th Cir. 2003), it does not suffice in all cases. Rather, like any


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circumstantial evidence, evidence of retaliation must be “‘specific’ and ‘substantial.’”

Winarto v. Toshiba Am. Elec. Components, Inc., 274 F.3d 1276, 1284 (9th Cir. 2001)

(quoting Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1222 (9th Cir. 1998)). Here,

we agree with the district court that no reasonable jury could find the temporal

proximity in this case, when viewed against the record as a whole, sufficient to return

a verdict in Rincon’s favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986) (stating a “dispute about a material fact is ‘genuine,’ . . . if the evidence is such

that a reasonable jury could return a verdict for the nonmoving party”); Pavoni v.

Chrysler Grp., LLC, 789 F.3d 1095, 1098 (9th Cir. 2015) (same).



       Finally, the district court granted summary judgment on the overtime-pay

claims, holding Rincon’s position was exempt because she exercised discretion and

independent judgment. We agree with the district court that no genuine issue of

material fact exists as to this issue. Rincon exercised judgment and discretion as she

traveled and met with prospective union members, assessed individuals for potential

unionization, and served as an AFSCME liaison assisting with organizing efforts. See

29 U.S.C. § 213(a)(1) (administrative-employee exemption); 29 C.F.R.

§ 541.200(a)(3) (administrative-employee exception may apply to employees who,




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among other things, exercise “discretion and independent judgment with respect to

matters of significance”).



      AFFIRMED.




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