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                           NOT FOR PUBLICATION                              JUN 13 2016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

                            FOR THE NINTH CIRCUIT

JODIE M. KELLEY,                              No. 13-36114

             Plaintiff - Appellant,           D.C. No. 2:12-cv-05132-TOR

 v.                                           MEMORANDUM*

AMAZON.COM, INC., a Delaware
corporation; AMZN WACS, INC,

             Defendants - Appellees.


                   Appeal from the United States District Court
                      for the Eastern District of Washington
                  Thomas O. Rice, Chief District Judge, Presiding

                        Argued and Submitted April 7, 2016
                               Seattle, Washington

Before: GILMAN,** RAWLINSON, and CALLAHAN, Circuit Judges.

      In 2006, Jodie M. Kelley joined AMZN WACS, Inc., a subsidiary of

Amazon.com, Inc. (collectively, Amazon) as a Customer Service Associate (CSA)

in Kennewick, Washington. CSAs are responsible for fielding questions from


      *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      **
        The Honorable Ronald Lee Gilman, Senior Circuit Judge for the United
States Court of Appeals for the Sixth Circuit, sitting by designation.
Amazon’s customers and resolving their complaints. During her employment with

Amazon, Kelley was afflicted with endometriosis and migraine headaches, which

produced numerous painful symptoms. Kelley took intermittent periods of medical

leave as a result of these conditions. Her job performance began to deteriorate in

2010. This was measured by her Expressed Dissatisfaction Rate (EDR), which

was derived from customer surveys. After several unsuccessful attempts to remedy

her deficiencies, Amazon fired Kelley in March 2011.

      Kelley subsequently filed the instant action against Amazon in the district

court, alleging that her termination violated the Americans with Disabilities Act

(ADA), the Washington Law Against Discrimination (WLAD), and the Family and

Medical Leave Act (FMLA).        In November 2013, the district court granted

summary judgment in favor of Amazon. This appeal followed.

      Kelley first raises failure-to-accommodate claims under both the ADA and

the WLAD. Among other requirements, success on such claims requires a plaintiff

to prove that (1) she gave notice to her employer concerning her disability and its

corresponding limitations, and (2) she is qualified to perform the essential

functions of the job with or without reasonable accommodation. Humphrey v.

Mem’l Hosps. Ass’n, 239 F.3d 1128, 1133–37 (9th Cir. 2001); Riehl v. Foodmaker,

Inc., 94 P.3d 930, 934 (Wash. 2004) (en banc).
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      Even assuming without deciding that Kelley raised a jury issue regarding the

notice element—which would normally trigger an “interactive process” to identify

potential accommodations, see Humphrey, 239 F.3d at 1137—her failure-to-

accommodate claims still fail because she did not raise a jury issue regarding

whether she was qualified. “A job function may be considered essential . . . [if] the

reason the position exists is to perform that function.”                 29 C.F.R.

§ 1630.2(n)(2)–(2)(i). That customer service is the reason for the existence of the

CSA position is obvious.     And the EDR is simply an objective measure that

Amazon used to evaluate whether CSAs were providing adequate customer

service.

      The record demonstrates that Kelley failed to create a jury issue regarding

whether she can deliver adequate customer service with or without a reasonable

accommodation. Over the course of at least eight months, she regularly failed to

meet the EDR standard required for her team even after repeated attempts by

Amazon personnel to improve her performance.

      A reasonable trier of fact has no basis to conclude that any of the

accommodations suggested by Kelley are reasonable.          One suggestion was to

transfer her to another CSA position.       But the record does not indicate the

availability of any positions for which Kelley was qualified, either when she was
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fired or “within a reasonable period” thereafter. See Dark v. Curry County, 451

F.3d 1078, 1089–90 (9th Cir. 2006).

      Another suggestion was that Kelley could have been granted a leave of

absence. But Kelley produced no medical evidence indicating that the impairments

preventing her from performing the essential functions of a CSA are treatable. See

id. at 1088; Humphrey, 239 F.3d at 1131. The opinion of Kelley’s doctor does not

include the possibility that her “tone of voice,” which Kelley argues is responsible

for her performance deficiencies, could be remedied through medical treatment

that would require a leave of absence.

      Nor did Kelley produce evidence that she was receiving treatment for the

symptoms that prevented her from performing the essential functions of her job.

See Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1247 (9th Cir. 1999). Kelley

argues for the first time in her reply brief that a leave of absence might have

remedied her tonal shortcomings by allowing her an opportunity for another round

of hormone shots, but there is no indication in the record that her prior treatment

required a leave of absence. Any argument that Kelley could perform the essential

functions of a CSA after a leave of absence is therefore speculative rather than

plausible. See Humphrey, 239 F.3d at 1136.



                                           -4-
      Kelley’s final suggestion is that Amazon could have consulted with her

doctor.   Although this is a potential method of discovering a reasonable

accommodation, it is not a reasonable accommodation in and of itself.

      Kelley’s disparate-treatment claims also fail for the reasons identified above

because a necessary element of such claims requires that the plaintiff be qualified

to do her job. See Humphrey, 239 F.3d at 1133; Riehl, 94 P.3d at 936.

      Finally, Kelley argues that a genuine dispute of material fact exists regarding

her FMLA-interference claim. Proximity between the use of FMLA leave and an

employee’s discharge can be sufficient to send an FMLA-interference claim to a

jury under some circumstances. See Manatt v. Bank of Am., NA, 339 F.3d 792, 802

(9th Cir. 2003). But Kelley’s extensive and freely granted utilization of FMLA

leave on an average of eight days per month during 2009 and 2010 belies any

reasonable inference that her five uses of leave in the month prior to her discharge

impacted Amazon’s decision to fire her. See Kimbro v. Atl. Richfield Co., 889 F.2d

869, 878 (9th Cir. 1989).

      For all of the above reasons, WE AFFIRM.




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