                                                                           FILED
                            NOT FOR PUBLICATION                             OCT 16 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



HARRY A. BURNETT,                                No. 11-55266

              Plaintiff - Appellant,             D.C. No. 3:05-cv-00167-LAB-
                                                 BLM
  v.

ERIC H. HOLDER, Jr., Attorney General,           MEMORANDUM *

              Defendant - Appellee.



                    Appeal from the United States District Court
                      for the Southern District of California
                     Larry A. Burns, District Judge, Presiding

                           Submitted October 11, 2012 **
                               Pasadena, California

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




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 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, Senior District Judge for the U.S.
District Court for Western Michigan, sitting by designation.
      Harry Burnett appeals from an order of the district court granting the

government’s motion for summary judgment. We have jurisdiction pursuant to 28

U.S.C. § 1291. After de novo review of the evidence in the light most favorable to

the non-moving party, we affirm.

      Burnett, a forensic chemist employed by the Drug Enforcement Agency

(“DEA”), alleges that the DEA discriminated against him on the basis of disability

by denying him the opportunity to attend clandestine laboratory training in 1997.

Burnett, who is African-American, also alleges that the DEA discriminated against

him on the basis of race by denying him the opportunity to “sit-in” for his

supervisor in the supervisor’s absence.

      The Rehabilitation Act prohibits federal agencies and programs receiving

federal assistance from discriminating against any individual “solely by reason of

her or his disability.” 29 U.S.C. § 794(a). The Rehabilitation Act incorporates the

standards for determining discrimination applied under the Americans with

Disabilities Act (the “ADA”). 29 U.S.C. § 794(d). The ADA requires employers

to make “reasonable accommodations to the known physical or mental limitations

of an otherwise qualified individual with a disability” unless “the accommodation

would impose an undue hardship.” 42 U.S.C. § 12112(b)(5)(A). “The appropriate

reasonable accommodation is best determined through a flexible, interactive


                                          2
process that involves both the employer and the [employee] with a disability.” 29

C.F.R. Pt. 1630, App. § 1630.9.

      The DEA engaged in a good-faith exploration of possible accommodations

with Burnett. After Burnett’s back surgery limited his lifting ability, Burnett

requested and received accommodation that removed him from clandestine

laboratory activities, which involve heavy protective equipment. Burnett’s

supervisor denied Burnett’s subsequent request to attend clandestine laboratory

training in 1997 because the supervisor saw it as unnecessary in light of the

accommodation. After Burnett renewed his request to attend the training,

Burnett’s supervisors met with him, reconsidered, and allowed him to attend in

1998 and following years. Accordingly, the district court did not err by finding

that there was no material issue of fact with regard to the DEA’s actions and that

those actions did not violate the ADA because they were part of an ongoing

interactive process of communication, consideration, and accommodation. See

Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1089 (9th Cir. 2002).

      Burnett also argues that his supervisor’s decision not to select Burnett to sit-

in for him when he was absent was racially discriminatory, in violation of Title VII

of the Civil Rights Act of 1964. Assuming that Burnett established a prima facie

case of discrimination, the DEA produced evidence of legitimate, non-


                                          3
discriminatory reasons for its employment actions. See McDonnell Douglas Corp.

v. Green, 411 U.S. 792, 802-04 (1973). Burnett’s supervisor selected those who

expressed an interest in supervision, which Burnett did not, and those who related

well to the group, while Burnett himself stated that he was a loner and did not want

to mix with the rest of the team. Although the evidence required to raise a genuine

dispute is minimal, Burnett did not submit any evidence alleging discriminatory

intent or alleging that the DEA’s profferred reasons were pretextual. See Vasquez

v. County of Los Angeles, 349 F.3d 634, 642 (9th Cir. 2004). “[A] plaintiff cannot

defeat summary judgment simply by making out a prima facie case.” Wallis v. J.R.

Simplot Co., 26 F.3d 885, 890 (9th Cir. 1994) (citation omitted). The district court

did not err in finding that there was no genuine issue of material fact as to

Burnett’s Title VII claim.

      AFFIRMED.




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