                                                                                        FILED
                           NOT FOR PUBLICATION                                          JUL 07 2016
                                                                                  MOLLY C. DWYER, CL
                                                                                    U.S. COURT OF APPEA
                    UNITED STATES COURT OF APPEALS

                            FOR THE NINTH CIRCUIT


TIMOTHY SHEPARD,                                 14-16447

              Plaintiff-Appellant,               D.C. No. 3:12-cv-00554-HDM-
                                                 VPC

  v.
                                                 MEMORANDUM*

ERIC K. SHINSEKI, Secretary,
Department of Veterans Affairs;
EDWARD RUSSELL, in his official
capacity; ALAN BITTLER, in his official
capacity,

              Defendants-Appellees.


                 Appeal from the United States District Court
                         for the District of Nevada,
              Howard D. McKibben, Senior District Judge, Presiding

                              Submitted July 5, 2016**
                              San Francisco, California



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: SILVERMAN and NGUYEN, Circuit Judges, and GARBIS, Senior
District Judge.***

      Timothy Shephard appeals the decision of the district court granting

summary judgment to the secretary of the Department of Veterans Affairs (“VA”).1

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

      Shepard, a VA employee who suffers from cognitive disabilities, was

transferred between departments2 when his job was eliminated. He contends that

the VA’s denial of his request to be transferred back to his original job constituted

failure to provide a reasonable accommodation in violation of the Rehabilitation

Act, 29 U.S.C. § 791. The district court granted summary judgment to the VA,

finding that the sole accommodation demanded by Shepard was not, as a matter of

law, a “reasonable” accommodation.

      Reviewing the district court’s decision de novo and viewing the evidence in

the light most favorable to Shepard, see McIndoe v. Huntington Ingalls Inc., 817

F.3d 1170, 1173 (9th Cir. 2016), we find no genuine issues of material fact and

find that Shephard’s prior position no longer existed. Because the “reasonable

accommodation” requirement does not require an employer to create a new job for
        ***
              The Honorable Marvin J. Garbis, Senior United States District Judge
for the District of Maryland, sitting by designation.
       1
         Robert McDonald has been automatically substituted as defendant for Eric
Shinseki pursuant to Fed. R. Civ. P. 25(d).
       2
         The transfer occurred before the VA was aware of Shepard’s disability.
the disabled employee, see Wellington v. Lyon Cnty. Sch. Dist., 187 F.3d 1150,

1155 (9th Cir. 1999), the VA was not required to recreate Shepard’s old job to

accommodate his disability. Therefore, in denying Shepard’s request for

reinstatement to his old position, the VA did not deny Shepard a reasonable

accommodation, and the district court properly granted summary judgment.3

      AFFIRMED.




      3
        Because the requested accommodation was not “reasonable,” we need not
reach the question of whether such an accommodation would impose “undue
hardship” on the VA. See U.S. Airways v. Barnett, 535 U.S. 391, 402 (2002)
(“Once the plaintiff has [shown that a particular accommodation would be
reasonable], the defendant/employer then must show special (typically
case-specific) circumstances that demonstrate undue hardship in the particular
circumstances.” (emphasis added)).
                                          3
