                           NOT FOR PUBLICATION                           FILED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

ANNA MARKOWITZ, an individual,                  No.    16-56083

                Plaintiff-Appellant,            D.C. No.
                                                8:15-cv-01367-AG-DFM
 v.

UNITED PARCEL SERVICE, INC., an                 MEMORANDUM*
Ohio corporation and DOE, 1 - 50 inclusive,

                Defendants-Appellees.

                   Appeal from the United States District Court
                      for the Central District of California
                   Andrew J. Guilford, District Judge, Presiding

                          Submitted February 13, 2018**
                              Pasadena, California

Before: McKEOWN and WARDLAW, Circuit Judges, and QUIST,*** District
Judge.

      Anna Markowitz appeals the district court’s grant of summary judgment in



      *
             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 Gordon J. Quist, United States District Judge for the
Western District of Michigan, sitting by designation.
favor of United Parcel Service (“UPS”), regarding her claims for disability

discrimination, failure to accommodate, and failure to engage in the interactive

process under the California Fair Employment and Housing Act (“FEHA”), and for

wrongful termination. See Cal. Gov’t Code § 12940. Because the parties are

familiar with the facts, we do not recite them here. We have jurisdiction under 28

U.S.C. § 1291. We affirm.

      We review de novo a district court’s grant of summary judgment. Branch

Banking & Tr. Co. v. D.M.S.I., LLC, 871 F.3d 751, 759 (9th Cir. 2017).

      Markowitz fails to raise a triable issue for disability discrimination under

FEHA. See Arteaga v. Brink’s, Inc., 163 Cal. App. 4th 327, 344–45 (2008).

FEHA “does not prohibit an employer from . . . discharging an employee with a

physical or mental disability . . . if the employee . . . is unable to perform [his or

her] essential duties even with reasonable accommodations.” Cal. Govt. Code §

12940(a)(1); see also Green v. State, 42 Cal. 4th 254, 262 (2007).

      The opinions of three doctors, as well as Markowitz’s own testimony,

establish that she could not work at all relevant times. From April 2013 to May

2014, Markowitz took nearly thirteen months of leave. Throughout this period,

medical professionals and Markowitz herself indicated she was completely unable

to work. For example, Dr. Sandhya Gudapati concluded Markowitz was unable to

work repeatedly throughout the time period from July 25, 2013 to July 3, 2014.


                                            2
Dr. David Brendel concluded that Markowitz was “totally and temporarily disabled

due to work-related psychological stress and strain secondary-to-work related

injuries” during his examinations beginning on May 20, 2014.

      Markowitz’s disability discrimination claim is also precluded by judicial

estoppel. See Drain v. Betz Labs., Inc., 69 Cal. App. 4th 950, 959 (1999). During

workers’ compensation proceedings, Markowitz asserted that she could not work.

Based in part on that assertion, Markowitz was awarded a payout of $26,000. Her

claim now that she was able to work during the relevant time period “flatly

contradicts both her prior sworn statements and the medical evidence,” and

therefore fails to create a genuine issue of fact for trial. See Kennedy v. Applause,

Inc., 90 F.3d 1477, 1481 (9th Cir. 1996).

      Markowitz’s failure to accommodate claim is unavailing because she was

not a qualified individual and UPS did not fail to accommodate her disability. See

Cuiellette v. City of L.A., 194 Cal. App. 4th 757, 766 (2011). Markowitz failed to

request other forms of accommodation beyond leave. Employers are not required

to provide indefinite leaves of absence. 2 Cal. Code Regs. 11068(c); see Dark v.

Curry Cty., 451 F.3d 1078, 1090 (9th Cir. 2006). And while apparently not raised

below, Markowitz’s argument on appeal that UPS failed to accommodate her

request for a transfer fails because UPS responded by providing her a new shift

working with a different management team.


                                            3
      Markowitz’s failure to engage in the interactive process claim likewise fails.

Markowitz was responsible to “identify [her] disability and resulting limitations,”

and to “suggest the reasonable accommodations” she sought. Scotch v. Art Inst. of

California-Orange Cty., Inc., 173 Cal. App. 4th 986, 1013 (2009) (citation and

internal quotation marks omitted). UPS did engage with Markowitz, granting her

multiple extensions for her leave of absence. UPS had no obligation to take further

steps to come up with reasonable accommodations until Markowitz gave some

indication that she would be able to return to work in any capacity.

      Finally, Markowitz’s claims for wrongful termination in violation of public

policy fail for the same reasons that her underlying claims for disability

discrimination and failure to engage in the interactive process under FEHA fail.

Hanson v. Lucky Stores, Inc., 74 Cal. App. 4th 215, 229–30 (1999).

      AFFIRMED.




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