                           NOT FOR PUBLICATION                            FILED
                    UNITED STATES COURT OF APPEALS                        APR 26 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

LIDIA G. JABLONSKI,                             No.    17-15494

                Plaintiff-Appellant,            D.C. No.
                                                2:13-cv-01510-JAD-VCF
 v.

WALMART INC.,                                   MEMORANDUM*

                Defendant-Appellee.

                   Appeal from the United States District Court
                             for the District of Nevada
                   Jennifer A. Dorsey, District Judge, Presiding

                            Submitted April 13, 2018**
                             San Francisco, California

Before: KLEINFELD, W. FLETCHER, and TALLMAN, Circuit Judges.

      Plaintiff-Appellant Lidia Jablonski appeals the district court’s grant of

summary judgment in favor of Defendant-Appellee WalMart Stores, Inc. on her

claims under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12111 et

seq., and Nevada state law. We have jurisdiction pursuant to 28 U.S.C. § 1291.


      *
             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).
After reviewing the district court’s grant of summary judgment de novo, Smith v.

Clark Cty. Sch. Dist., 727 F.3d 950, 954 (9th Cir. 2013), we affirm.

      1.        Even assuming that Jablonski made out a prima facie case of

disability discrimination, her ADA discrimination claim fails. WalMart articulated

a non-discriminatory rationale for firing Jablonski: after she returned from about

twenty weeks of leave and her Temporary Alternate Duty (TAD) period ended, she

refused to take the only vacant position in the store. See Godwin v. Hunt Wesson,

Inc., 150 F.3d 1217, 1220 (9th Cir. 1998). Jablonski failed to carry her burden of

showing that this rationale was a pretext for discrimination. See id. Her

supervisor’s assertion that Jablonski was “no longer job protected” was a factual

statement regarding the provisions of WalMart’s written leave policy, not direct

evidence that “proves the fact [of discriminatory animus] without inference or

presumption.” See id. at 1221. Therefore, Jablonski was required to present

“specific and substantial” indirect evidence of pretext, see id. at 1222, which she

failed to do.

      2.        WalMart attempted to accommodate Jablonski and adequately

engaged in the interactive process. See 29 C.F.R. § 1630.2(o)(3); Zivkovic v. S.

Cal. Edison Co., 302 F.3d 1080, 1089 (9th Cir. 2002). Jablonski filed leave

requests and submitted medical records to WalMart. WalMart officials

corresponded with her about her leave, granted multiple leave requests, and spoke


                                           2
to her about her future position. WalMart offered Jablonski several

accommodations: personal leave when she ran out of FMLA leave, a ninety-day

TAD position that accommodated her medical restrictions, and eventually a

permanent cashier position—which she rejected. Jablonski argues that WalMart

should have transferred her to another store. But she did not ask to be transferred

at the time, and she has not presented any evidence that there were vacant positions

for which she was qualified at other stores. Therefore, she has not met her burden

of “showing the existence of a reasonable accommodation that would have enabled

[her] to perform the essential functions of an available job.” See Dark v. Curry

Cty., 451 F.3d 1078, 1088 (9th Cir. 2006).

      3.     Nor has Jablonski made out a prima facie case of ADA retaliation1

because she has not linked her termination to any protected activity. See 42 U.S.C.

§ 12203(a); Pardi v. Kaiser Found. Hosps., 389 F.3d 840, 849 (9th Cir. 2004).

Notifying WalMart of her return to Maximum Medical Improvement was part of

the process of Jablonski returning to work, not a pursuit of her rights under the

ADA. See Pardi, 389 F.3d at 850. There also is no evidence that Jablonski

complained of discriminatory treatment on the basis of her disability or otherwise



1
  Jablonski initially styled this as a “coercion” claim, but the district court
(correctly, in our view) construed it as a retaliation claim. Jablonski did not object
to that recharacterization on appeal, so we have also analyzed it as an ADA
retaliation claim.

                                          3
attempted to vindicate her ADA rights before she was fired.

      Even if Jablonski had made out a prima facie case, her retaliation claim

would fail for the same reason her discrimination claim fails: WalMart articulated

a non-retaliatory reason for firing her, and she failed to offer any evidence that its

rationale was pretextual. See id. at 849. The fact that WalMart ended Jablonski’s

TAD period when it did is hardly evidence of retaliation, given that TAD

assignments are limited to a maximum of ninety days. And Jablonski’s

supervisor’s comment about Jablonski not being “job protected” is not evidence of

retaliatory intent any more than it is evidence of discriminatory intent.

      4.     Jablonski’s state-law tortious-discharge claim fails because she has

not raised a genuine issue of material fact regarding whether her filing of a

worker’s compensation claim was “the proximate cause” of her termination. See

Allum v. Valley Bank of Nev., 970 P.2d 1062, 1066 (Nev. 1998). WalMart retained

Jablonski for ten months after she filed a worker’s compensation claim, and it

would have continued her employment had she accepted the cashier position.

Furthermore, WalMart presented evidence that it fired her for a non-retaliatory

reason, and “recovery for retaliatory discharge under [Nevada] law may not be had

upon a ‘mixed motives’ theory.” See id.

      Costs are awarded to the Appellees.

      AFFIRMED.


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