                                                                           FILED
                            NOT FOR PUBLICATION                             AUG 15 2013

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



                            FOR THE NINTH CIRCUIT


CINTHYA CARBAJAL AVILES,                         No. 12-56144

              Plaintiff - Appellant,             D.C. No. 3:10-cv-02589-H-NLS

  v.
                                                 MEMORANDUM*
ALUTIIQ SECURITIES &
TECHNOLOGY,

              Defendant - Appellee.


                    Appeal from the United States District Court
                      for the Southern District of California
                     Marilyn L. Huff, District Judge, Presiding

                            Submitted August 13, 2013**
                              San Francisco, California

Before: HAWKINS, THOMAS, and McKEOWN, Circuit Judges.

       Cinthya Carbajal Aviles (“Aviles”) appeals the district court’s grant of

summary judgment in favor of Alutiiq Security & Technology (“Alutiiq”). We

have jurisdiction under 28 U.S.C. § 1291, and we affirm.

        *
             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).
       Aviles asserts employment discrimination claims under the Americans with

Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., and the California Fair

Employment and Housing Act (“FEHA”), Cal. Gov. Code § 12940 et seq. To

establish a prima facie case of discrimination under those Acts, Aviles must show

that she (1) is disabled, (2) is a qualified individual able to perform the essential

functions of the position, and (3) was discriminated against because of her

disability. Bates v. United Parcel Serv., Inc., 511 F.3d 974, 988–89 (9th Cir.

2007). Aviles is not a qualified individual, and thus has no protection under either

Act. Cripe v. City of San Jose, 261 F.3d 877, 887 (9th Cir. 2001) (“If a disabled

person cannot perform a job’s ‘essential functions’ . . . then the ADA’s

employment protections do not apply.”); Allen v. Pacific Bell, 348 F.3d 1113, 1114

n.1 (9th Cir. 2003) (“California relies on ADA precedents to interpret analogous

provisions of the [FEHA].”). By her own admission, Aviles was never able to

fulfill the physical requirements of her position and should never have been hired

in the first place.

       Aviles’ intentional infliction of emotional distress claim fails because the

California Workers’ Compensation Act preempts such claims in the employment

context. Livitsanos v. Superior Court, 2 Cal. 4th 744, 747 (1992).

       AFFIRMED.


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