                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           DEC 13 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


ARLANDI MUHAMMAD,                                No.   14-35370

              Plaintiff-Appellant,               D.C. No. 2:12-cv-02142-TSZ

 v.
                                                 MEMORANDUM*
SEATTLE POLICE DEPARTMENT and
CITY OF SEATTLE,

              Defendants-Appellees.


                    Appeal from the United States District Court
                      for the Western District of Washington
                     Thomas S. Zilly, District Judge, Presiding

                          Submitted December 8, 2016**
                              Seattle, Washington

Before: McKEOWN, TALLMAN, and CHRISTEN, Circuit Judges.

      The Seattle Police Department (SPD) and City of Seattle terminated Arlandi

Muhammad’s employment as a police officer on the basis of job abandonment.

Muhammad filed suit, alleging violations of the Washington Law Against

      *
             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).
Discrimination (WLAD) and the Family and Medical Leave Act (FMLA). The

district court granted summary judgment to the defendants on all claims. We have

jurisdiction under 28 U.S.C. § 1291. Reviewing de novo, and construing all facts

in the light most favorable to the plaintiff, see Sharpe v. Am. Tel. & Tel. Co., 66

F.3d 1045, 1049 (9th Cir. 1995), we affirm.

      1. Muhammad injured his shoulder while on duty in March 2008. The SPD

put Muhammad on a combination of light duty and paid leave for over two years

following his injury, and gave him a voucher to obtain a modified ballistic vest.

Muhammad maintains that the SPD did not reasonably accommodate his disability

because the SPD: (1) failed to assist Muhammad in obtaining a modified ballistic

vest, and (2) revoked his light-duty assignment in May 2010.

      The “WLAD requires an employer to reasonably accommodate a disabled

employee unless the accommodation would pose an undue hardship.” Frisino v.

Seattle Sch. Dist. No. 1, 249 P.3d 1044, 1049 (Wash. Ct. App. 2011) (citing Wash.

Rev. Code § 49.60.180(2)-(3)). The employee has an obligation to communicate

whether an accommodation is effective because the employer must be able “to

determine whether more is required to discharge its duty.” Id. at 1052. “An

employer’s previously unsuccessful attempts at accommodation do not give rise to




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liability if the employer ultimately provides a reasonable accommodation.” Id. at

1051 (citing Sharpe, 66 F.3d at 1051).

      Muhammad did not request assistance from the safety officer, or otherwise

communicate that he felt ill-equipped to use the voucher, until after the second vest

proved inadequate in November 2009. He does not dispute that the third vest

successfully accommodated his injury. The defendants cannot be held liable for

any previously unsuccessful attempts at accommodation because they ultimately

provided a satisfactory vest. See id. at 1052.

      Muhammad also contends that the SPD failed to accommodate his disability

by revoking his light-duty assignment. He asserts that the SPD did not fulfill its

obligation “to determine whether Mr. Muhammad was qualified for any other

vacant positions.” This argument fails because light duty is not a “vacant”

position; it is a temporary assignment “intended to provide an opportunity for

employees to continue to work as they recover from an injury or illness, for a

limited period of time.” The SPD did not offer any other officers a combination of

paid leave and light duty for more than two years. Because an employer is not

required “to create a new position, to alter the fundamental nature of the job, or

eliminate or reassign essential job functions,” Pulcino v. Fed. Express Corp., 9

P.3d 787, 795 (Wash. 2000) (en banc), overruled in part on other grounds by


                                           3
McClarty v. Totem Elec., 137 P.3d 844 (Wash. 2006), the WLAD did not require

the SPD to grant Muhammad’s specific request to remain on light duty for more

than two years.

      2. Muhammad next argues that the SPD engaged in a “campaign of

retaliation” against him for filing an EEO complaint and notice of his damages

claim. Muhammad argues that the SPD took the following adverse employment

actions against him in violation of the WLAD: (1) provided little to no assistance

in obtaining a modified vest; (2) denied Muhammad “the duration and flexibility of

light duty assignment” given to other officers; (3) ordered Muhammad to don an

inadequate vest, causing reinjury; (4) termination; and (5) denial of Family and

Medical Leave (FML). The defendants do not dispute that termination and denial

of FML qualify as adverse employment actions.

      Muhammad has not alleged facts sufficient to establish a “hostile work

environment . . . amount[ing] to an adverse employment action” with respect to the

other three actions. Kirby v. City of Tacoma, 98 P.3d 827, 833 (Wash. Ct. App.

2004). As explained, the SPD assisted Muhammad in obtaining a custom vest that

accommodated his shoulder injury and did not deny Muhammad the light duty

given to other officers. Moreover, Muhammad requested a meeting with the safety

officer so that the officer could evaluate the vest. Ordering Muhammad to try it on


                                          4
did not create a hostile work environment. See id. Thus, only termination and

denial of FML qualify as adverse employment actions in this case.

        Muhammad failed to prove that the SPD’s legitimate, nondiscriminatory

reasons for terminating him and denying FML were pretextual. See Currier v.

Northland Servs., Inc., 332 P.3d 1006, 1011 (Wash. Ct. App. 2014). Muhammad’s

pattern of absenteeism, and the SPD’s investigation into and discipline for it, began

long before Muhammad filed an EEO complaint or notice of his damages claim.

The parties signed an Action Plan to address Muhammad’s chronic absenteeism in

November 2008, which warned that failure to comply “may result in discipline up

to and including termination.” Muhammad was eventually terminated for job

abandonment because, after receiving several warnings, he exhausted all paid leave

and failed to report to work despite having a medical clearance to return to full

duty.

        The defendants denied Muhammad’s FML application because Muhammad

failed to establish that he suffered from a qualifying medical condition during the

relevant time period: December 6 to 14, 2010. The district court correctly granted

summary judgment on Muhammad’s retaliation claim.

        3. Muhammad argues that judicial estoppel bars the defendants from

asserting that he is ineligible for FMLA protections because the City established


                                          5
more generous eligibility requirements for its FML policy. But the parties agree

that Muhammad did not satisfy the FMLA’s eligibility requirement because he did

not work at least 1,250 hours during the previous twelve-month period. See 29

U.S.C. § 2611(2)(A)(ii). And although Muhammad fulfilled the City’s more

lenient standard, the City did not engage in affirmative misconduct nor did

Muhammad lose any rights to which he was entitled. See Estate of Amaro v. City

of Oakland, 653 F.3d 808, 813 (9th Cir. 2011); Sulit v. Schiltgen, 213 F.3d 449,

454 (9th Cir. 2000). The City denied Muhammad’s application because he failed

to establish that he suffered from a qualifying medical condition. The fact that the

City provided a more generous FML policy does not expand Muhammad’s rights

under the federal statute nor create a federal cause of action. See Dolese v. Office

Depot, Inc., 231 F.3d 202, 203 (5th Cir. 2000) (per curiam). The district court did

not err in rejecting Muhammad’s estoppel argument.

      Each party shall bear its own costs on appeal.

      AFFIRMED.




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