                                                                              FILED
                           NOT FOR PUBLICATION                                APR 06 2012

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


LISA CARTER,                                     No. 10-55950

              Plaintiff - Appellant,             D.C. No. 2:09-cv-06252-R-AGR

  v.
                                                 MEMORANDUM*
RBC CAPITAL MARKETS
CORPORATION,

              Defendant - Appellee.


                   Appeal from the United States District Court
                      for the Central District of California
                    Manuel L. Real, District Judge, Presiding

                     Argued and Submitted February 17, 2012
                              Pasadena, California

Before: FARRIS and W. FLETCHER, Circuit Judges, and KORMAN, Senior
District Judge.**

       Lisa Carter sued her employer, RBC Capital Markets Corporation, alleging

that RBC’s failure to reinstate her, after she took almost a year of leave from work,


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Edward R. Korman, Senior United States District
Judge for the Eastern District of New York, sitting by designation.
constituted disability discrimination, medical leave retaliation, and wrongful

termination in violation of public policies under California law. RBC presented

evidence that, while Carter was on leave, other employees absorbed Carter’s job

responsibilities, and RBC began a cost containment initiative in response to the

downturn in the financial markets. When Carter sought to return, RBC no longer

had a position for her. The district court granted summary judgment for RBC.

      We have jurisdiction under 28 U.S.C. § 1291 and review the district court’s

decision de novo. Universal Health Servs., Inc. v. Thompson, 363 F.3d 1013, 1019

(9th Cir. 2004). Viewing the evidence in the light most favorable to Carter, we

agree with the district court that there is no genuine issue of material fact. See id.

We affirm the grant of summary judgment for RBC.

I.    Disability Discrimination Claims

      The elements of a prima facie case of disability discrimination are (1) the

plaintiff is disabled; (2) the plaintiff can, with or without reasonable

accommodation, perform the essential functions of her position; and (3) the

defendant subjected the plaintiff to an adverse employment action (4) because of

the disability. Cal. Gov’t Code § 12940(a); Avila v. Cont’l Airlines, Inc., 82 Cal.

Rptr. 3d 440, 448, 165 Cal. App. 4th 1237, 1246 (Cal. Ct. App. 2008). Where, as

here, there is no direct evidence of discriminatory intent, California courts analyze


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disability discrimination claims under a three-stage burden-shifting framework.

Guz v. Bechtel Nat’l, Inc., 8 P.3d 1089, 1113, 100 Cal. Rptr. 2d 352, 378, 24 Cal.

4th 317, 354 (Cal. 2000). Under this framework, “[t]o prevail on summary

judgment, [the employer is] required to show either that (1) [the] plaintiff could not

establish one of the elements of [the] claim, or (2) there was a legitimate,

nondiscriminatory reason for its decision to terminate plaintiff’s employment.”

Avila, 82 Cal. Rptr. 3d at 449, 165 Cal. App. 4th at 1247. If the employer satisfies

(2), the burden shifts to the employee “to rebut this facially dispositive showing by

pointing to evidence which nonetheless raises a rational inference that intentional

discrimination occurred.” Guz, 8 P.3d at 1115, 100 Cal. Rptr. 2d at 381, 24 Cal. 4th

at 357. The plaintiff “must produce substantial responsive evidence that the

employer’s showing was untrue or pretextual.” Martin v. Lockheed Missiles &

Space Co., 35 Cal. Rptr. 2d 181, 29 Cal. App. 4th 1718, 1735 (Cal. Ct. App. 1994)

(quotation marks omitted).

A.    Failure To Reinstate/Termination

      The first adverse action Carter claims to have suffered is non-reinstatement

following her disability leave. Summary judgment for RBC on this claim was

proper. Carter failed to rebut RBC’s showing of a legitimate, nondiscriminatory

reason for non-reinstatement. Preexisting employees absorbed Carter’s duties


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while she was gone, and when she sought to return, RBC was in the midst of a cost

containment initiative, and there were no vacant positions for which she was

qualified. See, e.g., Guz, 8 P.3d at 1116-17, 100 Cal. Rptr. 2d at 382-83, 24 Cal.

4th at 359-60. Carter submitted no evidence showing that RBC’s reason for

terminating her was pretextual.

       Carter also claims that “RBC had a practice of telling disabled employees

their jobs would be protected for 12 months,” contrary to its actual practice of

protecting an employee’s job for only twelve weeks. She provided no evidence for

this assertion.

       Carter also claims that “RBC has the burden of establishing that an

employee’s position would have been eliminated even if the employee had not

gone out on disability or medical leave” (citing Cal. Code Regs. tit. 2,

§ 7297.2(c)(1); Neisendorf v. Levi Strauss & Co., 49 Cal. Rptr. 3d 216, 221, 143

Cal. App. 4th 509, 517 (Cal. Ct. App. 2006)). However, section 7297.2(c)(1) is an

affirmative defense to liability for failing to reinstate an employee within or upon

expiration of her guaranteed twelve weeks of leave under the California Family

Rights Act. Cal. Gov’t Code § 12945.2(a). It does not apply where, as here, the

employee remains out of work beyond the twelve-week period. See Neisendorf, 49

Cal. Rptr. 3d at 221, 143 Cal. App. 4th at 517.


                                          4
      Carter also alleged that RBC unlawfully (1) failed to engage in a timely,

good faith interactive process with her to identify reasonable accommodations for

her disability, in violation of California Government Code § 12940(n), and (2)

failed to reasonably accommodate her disability in violation of § 12940(m).

      The only “reasonable accommodations” Carter argues RBC failed to identify

or provide are (1) employment as a client associate when she sought to return and

(2) “[t]ime off work to recuperate from [her] disability [while holding her job open

for her].” As to (1), Carter submitted no evidence that she was qualified to be a

client associate. RBC, on the other hand, submitted the testimony of Carter’s

former supervisor that Carter was not qualified for that position. Employment as a

client associate was thus not a reasonable accommodation RBC was required to

provide.

      With respect to the “reasonable accommodation” of “[t]ime off work to

recuperate from [her] disability [while holding her job open],” Carter claims that

“[i]n general an [employer] is required to protect a disabled employee’s job for 12

months (not weeks) when based upon a ‘disability’” (citing, inter alia, Jensen v.

Wells Fargo Bank, 102 Cal. Rptr. 2d 55, 68, 85 Cal. App. 4th 245, 263 (Cal. Ct.

App. 2000)). Carter cites to no authority that stands for this proposition. To the

contrary, Jensen makes clear that “the employer can[] prevail on summary


                                          5
judgment on a claim of failure to reasonably accommodate [by not holding a job

open for the employee] [if] it establishes through undisputed facts that . . . there

simply was no vacant position within the employer’s organization for which the

disabled employee was qualified . . . .” Jensen, 102 Cal. Rptr. 2d at 68, 85 Cal.

App. 4th at 263. RBC established just that. Branch Manager Ken Sullivan’s

undisputed testimony was that he affirmatively inquired into whether there were

any positions Carter could fill and determined that there were not. Carter goes on

to claim that “RBC admits 12 months disability leave [is] a reasonable

accommodation.” No evidence in the record supports her claim. Finally, she claims

that returning her to work in January 2009 would have imposed no hardship on

RBC. To the contrary, RBC showed that adding Carter as a full-time employee to

the payroll, to perform services RBC did not need, in the midst of a severe market

downturn, would have imposed a hardship on RBC.

B.    Health Insurance and Severance Payment

      Carter also raises claims regarding RBC’s alleged practices or policies

pertaining to insurance and severance payments, but points to no admissible

evidence in the record to support them.

C.    Performance Review




                                           6
      Carter claims she was subject to an adverse employment action when, during

a 2005 performance review, her reviewer stated, “This year has been a difficult

year for Lisa healthwise. That is over and time off will be back to normal.” This

comment was not an adverse employment action; it was merely a statement that

Carter had had health problems the prior year. See Horsford v. Bd. of Trustees of

Cal. State Univ., 33 Cal. Rptr. 3d 644, 654, 132 Cal. App. 4th 359, 373 (Cal. Ct.

App. 2005) (to be adverse, employment action must do more than “displease the

employee”; it must “substantial[ly]” and “detrimental[ly]” affect “terms,

conditions, or privileges of employment”).

II.   Medical Leave Discrimination/Retaliation Claim

      Carter’s second cause of action alleged that RBC unlawfully terminated her

in retaliation for her taking twelve weeks of leave protected under the California

Family Rights Act. See Cal. Gov’t Code § 12945.2(l)(1). In order to establish a

prima facie case of such retaliation, a plaintiff must show that “(1) the defendant

was an employer covered by [the California Family Rights Act]; (2) the plaintiff

was an employee eligible to take . . . leave [under the Act]; (3) the plaintiff

exercised her right to take leave for a qualifying . . . purpose; and (4) the plaintiff

suffered an adverse employment action, such as termination, because of her

exercise of her right to . . . leave.” Avila, 82 Cal. Rptr. 3d at 454-55, 165 Cal. App.


                                            7
4th at 1254 (internal quotation marks and indications of alteration omitted).

Summary judgment for RBC on this claim was proper. RBC “prove[d] that there

[wa]s an absence of evidence to support [Carter’s] case.” In re Oracle Corp. Sec.

Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S.

317, 325, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)). There is no evidence in the

record that RBC discharged Carter in retaliation for, or because she took, her

twelve-week leave.

III.   Wrongful Termination Claim

       Carter contends that she was wrongfully terminated in violation of the public

policies set forth in California Government Code §§ 12940, 12948, 12926, and

12945.2, and Article I, Section 8 of the California Constitution. This action is

duplicative of Carter’s first two causes of action, on which summary judgment for

RBC was proper. For the same reasons, summary judgment for RBC on this claim

was proper as well.

       Carter’s remaining claim—that the district court should have “stricken”

RBC’s motion for summary judgment because RBC allegedly did not cooperate in

producing deposition witnesses—is meritless.

       AFFIRMED.




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