                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       NOV 21 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

STEPHAN DICOMITIS,                              No.    17-35948

                Plaintiff-Appellant,            D.C. No. 9:16-cv-00094-DLC

 v.
                                                MEMORANDUM*
UNITED PARCEL SERVICE, INC.,

                Defendant-Appellee.

                   Appeal from the United States District Court
                           for the District of Montana
                   Dana L. Christensen, Chief Judge, Presiding

                          Submitted November 9, 2018**
                                Portland, Oregon

Before: TALLMAN and IKUTA, Circuit Judges, and BOUGH,*** District Judge.

      Stephan Dicomitis (“Dicomitis”) appeals the district court’s grant of

summary judgment in favor of United Parcel Service, Inc. (“UPS”) on his



      *
             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).
      ***
            The Honorable Stephen R. Bough, United States District Judge for the
Western District of Missouri, sitting by designation.
wrongful termination and failure to accommodate claims under the Americans with

Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq., and the Montana Human

Rights Act (“MHRA”), Mont. Code Ann. §§ 49-2-101 et seq.1 We have

jurisdiction under 28 U.S.C. § 1291. 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.

      To prevail on his claims, Dicomitis bears the burden of demonstrating he is a

“qualified individual.” Weyer v. Twentieth Century Fox Film Corp., 198 F.3d

1104, 1108 (9th Cir. 2000) (“An ADA plaintiff bears the burden of proving that

she is a ‘qualified individual with a disability[.]’”). A qualified individual is

defined as “an individual who, with or without reasonable accommodation, can

perform the essential functions of the employment position that such individual

holds or desires.” 42 U.S.C. § 12111(8). A reasonable accommodation may

include “reassignment to a vacant position.” 42 U.S.C. § 12111(9)(B).

      Dicomitis failed to show he is a qualified individual. Dicomitis represented

to the Social Security Administration (“SSA”) that he is disabled and unable to

work. Weyer, 198 F.3d at 1108 (“A totally disabled person who cannot ‘perform

the essential functions of the employment position’ with or without reasonable


1
 We analyze the ADA and MHRA claims together. Pannoni v. Bd. of Trustees, 90
P.3d 438, 444 (Mont. 2004) (“[T]he MHRA is closely modeled after federal anti-
discrimination statutes such as the ADA[.]”).

                                           2                                        17-35948
accommodations thus cannot be a ‘qualified individual.’”). Dicomitis has received

disability benefits since 2008, and continues to receive such benefits. Dicomitis

did not provide an adequate explanation for his prior representation of disability to

the SSA, and his current assertion that he is a qualified individual. Cleveland v.

Policy Mgmt. Sys. Corp., 526 U.S. 795, 806–07 (1999).

      Dicomitis is not a qualified individual for the additional reason that he failed

to request a reasonable accommodation at or near the time of his termination.

Dark v. Curry Cty., 451 F.3d 1078, 1088 (9th Cir. 2006) (“[Plaintiff] has the

burden of showing the existence of a reasonable accommodation that would have

enabled him to perform the essential functions of an available job.”). As a result,

the district court correctly found Dicomitis not qualified because he failed to show

that he requested, and could have performed, a vacant UPS position at or near the

time of his termination. U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 401–02

(2002) (recognizing that a plaintiff must “show that an ‘accommodation’ seems

reasonable on its face”); Dark, 451 F.3d at 1089.

      The district court also properly dismissed Dicomitis’s accommodation

claims as time barred and unexhausted. See Mont. Code Ann. § 49-2-501(4)(a)-

(b); Mont. Code. Ann. § 49-2-512(3).

      AFFIRMED.




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