                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            OCT 20 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


JERRY W. NEUFELD, Jr., an individual,            No.   16-15578

              Plaintiff-Appellant,               D.C. No.
                                                 1:14-cv-01505-DAD-JLT
 v.

WINCO HOLDINGS, INC., DBA Winco                  MEMORANDUM*
Foods, an Idaho corporation,

              Defendant-Appellee.


                   Appeal from the United States District Court
                      for the Eastern District of California
                   Kimberly J. Mueller, District Judge, Presiding

                      Argued and Submitted October 13, 2017
                            San Francisco, California

Before: TASHIMA and BYBEE, Circuit Judges, and LEITMAN,** District Judge.

      Appellant Jerry Neufeld, Jr. worked as a cashier at a grocery store operated

by Appellee WinCo Holdings, Inc. Neufeld suffered from anxiety, and his

condition prevented him from coming to work on a regular and predictable basis.

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Matthew Frederick Leitman, United States District
Judge for the Eastern District of Michigan, sitting by designation.
WinCo ultimately terminated his employment because he missed several days of

work and failed to submit a doctor’s note confirming that those absences were

caused by his anxiety.1 Neufeld then brought this action in which he alleges that

both his termination and WinCo’s conduct preceding the termination violated the

California Fair Employment and Housing Act, Cal. Gov’t Code § 12900 et seq.,

and California common law.

      The district court held that Neufeld could not prevail on his FEHA claims

because regular and predictable attendance was an essential function of his job, and

he could not perform that function with or without a reasonable accommodation.

The court further held that Neufeld’s common law claim for wrongful termination

failed because it was derivative of his FEHA claims. We agree and affirm the

district court’s judgment.

      The FEHA provides that “[i]t is an unlawful employment practice, unless

based upon a bona fide occupational qualification . . . [f]or an employer . . .

because of mental disability . . . to discharge [a] person from employment . . . .”

Cal. Gov’t Code § 12940(a). However, the FEHA “does not prohibit an employer

from . . . discharging an employee with a physical or mental disability . . . where

the employee, because of his or her physical or mental disability, is unable to
      1
          This termination was in accordance with WinCo’s progressive discipline
policy.
                                           2
perform his or her essential duties even with reasonable accommodations . . . .” Id.

§ 12940(a)(1). To state a “prima facie case of disability discrimination under

FEHA,” an employee must “show he or she (1) suffered from a disability, (2) was

otherwise qualified to do his or her job, and (3) was subjected to adverse

employment action because of the disability.” Nealy v. City of Santa Monica, 234

Cal. App. 4th 359, 378 (2015) (citation omitted).

      The second element of the prima facie case is at issue in this appeal. To

satisfy that element – i.e., to demonstrate that he or she is a “qualified individual” –

an employee must show that he or she “is able to perform the essential functions of

his or her job, with or without reasonable accommodation.” Id. “‘Essential

functions means the fundamental job duties of the employment position the

individual with a disability holds or desires.’” Id. at 373 (quoting Cal. Gov’t Code

§ 12926(f)).

      We agree with the district court that regular and predictable attendance was

an essential function of Neufeld’s employment as a WinCo cashier. Indeed,

“[e]xcept in the unusual case where an employee can effectively perform all work-

related duties at home, an employee who does not come to work cannot perform

any of his job functions, essential or otherwise.” Samper v. Providence St. Vincent

Med. Ctr., 675 F.3d 1233, 1239 (9th Cir. 2012) (citations and quotations omitted).


                                           3
Neufeld could not perform his primary job function – operating a WinCo cash

register – at home, and he has otherwise failed to establish that this is an “unusual

case” in which regular and predictable attendance is not an essential job function.

      Nor did Neufeld demonstrate that he could perform his cashier

responsibilities with a reasonable accommodation. As the district court correctly

held, Neufeld’s proposed accommodations were not reasonable because they

would have exempted him from one or more of the essential functions of his

position.

      Because Neufeld was not “otherwise qualified” to work as a WinCo cashier,

WinCo was entitled to summary judgment on Neufeld’s FEHA disability

discrimination claim and his derivative common law claim for wrongful

termination. Likewise, WinCo was entitled to summary judgment on Neufeld’s

remaining FEHA claims because he failed to show that he could perform the

essential functions of his position with a reasonable accommodation. Accordingly,

we AFFIRM the judgment of the district court in WinCo’s favor.




                                           4
                                                                           FILED
Neufeld, Jr. v. Winco Holdings, Inc., 16-15578
                                                                            OCT 20 2017
LEITMAN, District Judge, dissenting:                                    MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


      I respectfully dissent. I believe that the correspondence from WinCo to

Neufeld dated June 29, 2012, and February 13, 2013, created a material factual

dispute as to whether Neufeld could perform the essential functions of his job as a

cashier with a reasonable accommodation. I would vacate the judgment of the

district court and remand for further proceedings.
