                             NOT FOR PUBLICATION                           FILED
                        UNITED STATES COURT OF APPEALS                     JUN 15 2018
                                                                       MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                             FOR THE NINTH CIRCUIT


JANEL BEHLER, a married woman                           No. 16-35643

             Plaintiff-Appellant,                       D.C. No.
                                                        2:14-cv-0386-SMJ
v.

JANSSEN PHARMACEUTICALS, INC,                           MEMORANDUM*
a New Jersey Corporation

             Defendant-Appellee.



                   Appeal from the United States District Court
                       for the Eastern District of Washington
                  Salvador Mendoza, Jr., District Judge, Presiding

                          Argued and Submitted May 7, 2018
                                 Seattle, Washington

Before: GOULD, IKUTA, Circuit Judges, and FREUDENTHAL,** Chief District
Judge

      Janel Behler appeals the district court’s judgment dismissing her action

alleging   disability    discrimination   under   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 Honorable Nancy D. Freudenthal, Chief United States District
Judge for the District of Wyoming, sitting by designation.
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Discrimination. We review de novo a district court’s grant of summary judgment.

Bravo v. City of Santa Maria, 665 F.3d 1076, 1083 (9th Cir. 2011). We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

      Construing the facts in the light most favorable to Behler, she failed to

establish she could perform the essential functions of her job and the district court

properly dismissed Behler’s claim for disability discrimination.       See Davis v.

Microsoft Corp., 70 P.3d 126, 131 (Wash. 2003) (en banc). Behler argues Dr. Van

Wey’s 2016 declaration and the March 2012 letter create an issue of material fact

regarding whether she could perform the essential functions of her job. However,

Van Wey’s 2012 letter only stated Behler planned to return to work and identified

accommodations, but did not provide a date for her return. Shortly after she

submitted the 2012 letter, Van Wey was asked to review an Independent Medical

Evaluation (IME) of Behler. Van Wey expressed her agreement with the IME’s

conclusion that Behler could not return to work until October 2012. Further, in

April 2012, Van Wey’s chart notes stated Behler could not return to work in any

capacity until October 2012.

      In February 2016, Van Wey provided a declaration for the purposes of the

lawsuit. In her declaration, Van Wey stated, “I believed that an effort to return

[Behler] to work in the spring of 2012, with those accommodations [identified in

the 2012 letter,] would have been reasonable, and would have plausibly enabled

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her to perform the essential functions of her job. . . ”. However, Van Wey never

communicated this belief in 2012. Rather, Van Wey’s 2012 statements were clear

and unambiguous. Behler could not return to work in any capacity until October

2012. These clear and unambiguous statements leave no issue of material fact for

the jury on whether Behler could perform the essential functions of her job, with or

without accommodations, in the spring of 2012. Further, even if Van Wey’s 2012

statements were ambiguous, the 2016 declaration provides only a scintilla of

evidence that Behler could plausibly perform the essential functions of her job with

accommodations, had she returned to work in the spring of 2012. See Triton

Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir. 1995) (“[t]he mere

existence of a scintilla of evidence in support of the non-moving party’s position is

not sufficient”). The district court did not err in granting summary judgment.

      Finally, the district court did not err when it did not consider Janssen’s duty

to engage in the interactive process. Janssen did not have a duty to engage in the

interactive process until Behler could perform the essential functions of her job

with or without accommodation. Clarke v. Shoreline Sch. Dist. No. 412, King Cty.,

720 P.2d 793, 803 (Wash. 1986) (en banc). Based on the statements in the IME and

Van Wey’s agreement with the IME, there was no question of fact that in spring

2012, Behler could not perform the essential functions of her job, even with

accommodations. Moreover, even if Van Wey’s declaration is credited, Janssen did

                                         3
not breach a duty under Washington law to accommodate Behler because Janssen

sought information about Behler’s disability and was told that Behler could not

return to work. See Davis, 70 P.3d at 139–40. The district court did not err in

granting summary judgment.

AFFIRMED.




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