                                                                           FILED
                             NOT FOR PUBLICATION                            APR 26 2012

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




                             FOR THE NINTH CIRCUIT



DEBBIE SINYAN,                                    No. 10-36134

               Plaintiff - Appellant,             D.C. No. 2:10-cv-01432-RSM

  v.
                                                  MEMORANDUM *
SWEDISH HOSPITAL MEDICAL
CENTER; CHRISTIE WILLIAMS,

               Defendants - Appellees.



                    Appeal from the United States District Court
                       for the Western District of Washington
                    Ricardo S. Martinez, District Judge, Presiding

                              Submitted April 17, 2012 **

Before:        LEAVY, PAEZ, and BEA, Circuit Judges.

       Debbie Sinyan appeals pro se from the district court’s dismissal of her

employment action without prejudice. We have jurisdiction under 28 U.S.C.

§ 1291. We review de novo a dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii).


          *
             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).
Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (order). We may

affirm on any ground supported by the record, Thompson v. Paul, 547 F.3d 1055,

1058-59 (9th Cir. 2008), and we affirm.

      The district court properly dismissed Sinyan’s Americans with Disabilities

Act (“ADA”) claim arising from her termination because Sinyan failed to allege

facts sufficient to show that she was terminated because of her alleged disabilities.

See Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1246 (9th Cir. 1999) (to state a

prima facie case under the ADA, the plaintiff must show that she was terminated

because of her disability).

      The district court properly dismissed Sinyan’s ADA claim arising from her

request to transfer to a “desk position” because Sinyan failed to allege facts

sufficient to show that there was a vacant position and that she was qualified for

such a position. See Braunling v. Countrywide Home Loans Inc., 220 F.3d 1154,

1157-58 (9th Cir. 2000) (while transfer to another position may be a reasonable

accommodation, plaintiff failed to show that her requested transfer would have

enabled her to perform the essential functions of the job); Wellington v. Lyon Cnty.

Sch. Dist., 187 F.3d 1150, 1155 (9th Cir. 1999) (an employer does not have a duty

to create a new position to accommodate a disabled employee).

      The district court properly dismissed Sinyan’s Fourteenth Amendment due


                                           2                                     10-36134
process claim because she failed to allege facts sufficient to show state action. See

Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 924 (1982) (“Because the

[Fourteenth] Amendment is directed at the States, it can be violated only by

conduct that may be fairly characterized as ‘state action.’”).

      Dismissal of Sinyan’s hybrid fair representation and collective bargaining

agreement claim was proper because this claim is time-barred, as Sinyan filed her

complaint over six months after her union allegedly breached its duty of fair

representation by granting her employer an extension of a grievance procedure

deadline. See Harris v. Alumax Mill Prods., Inc., 897 F.2d 400, 403-04 (9th Cir.

1990) (six-month statute of limitations applies to “hybrid” claims “where the

employee alleges that the employer breached the collective bargaining agreement

and that the union breached its duty of fair representation[,]” and begins to run

when an employee knows or should have known of the union’s alleged

wrongdoing).

      Sinyan’s remaining contentions, including those concerning the district

court’s dismissal of her action after issuance of summonses, are unpersuasive. See

28 U.S.C. § 1915(e)(2)(B)(ii) (the court shall dismiss an in forma pauperis action

“at any time” if it determines that the action fails to state a claim on which relief

may be granted).


                                            3                                     10-36134
       Sinyan’s objections to the appellees’ answering brief and motion to strike all

pleadings submitted by the appellees, received on July 5, 2011, is construed as a

reply brief, and the Clerk is directed to file it. To the extent that the filing also

requests relief, such relief is denied.

       AFFIRMED.




                                             4                                     10-36134
