                                                                            FILED
                               NOT FOR PUBLICATION                           DEC 14 2009

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




                               FOR THE NINTH CIRCUIT



 FABIAN VAKSMAN,                                   No. 08-35771

                 Plaintiff - Appellant,            D.C. No. 2:07-cv-00225-FVS

   v.
                                                   MEMORANDUM *
 MICHAEL B. DONLEY, Secretary,
 Department of the Air Force,

                 Defendant - Appellee.



                       Appeal from the United States District Court
                          for the Eastern District of Washington
                       Fred L. Van Sickle, District Judge, Presiding

                             Submitted November 17, 2009 **


Before:          ALARCÓN, TROTT, and TASHIMA, Circuit Judges.

        Fabian Vaksman appeals pro se from the district court’s summary judgment

for defendant in his action under the Rehabilitation Act, 29 U.S.C. § 791, et seq.,

            *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
            **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).

/Research
alleging that he was unlawfully terminated based on his disability. We have

jurisdiction under 28 U.S.C. § 1291. We review de novo. Walton v. U.S. Marshals

Serv., 492 F.3d 998, 1005 (9th Cir. 2007). We affirm.

        The district court properly concluded that Vaksman failed to demonstrate

that he was “otherwise qualified” for his job because the record shows that he did

not receive a passing score in a required course, and he did not request any

accommodation until after his employment was terminated. See id. (“To state a

prima facie case under the Rehabilitation Act, a plaintiff must demonstrate that (1)

[he] is a person with a disability, (2) who is otherwise qualified for employment,

and (3) suffered discrimination because of [his] disability.”); Lucero v. Hart, 915

F.2d 1367, 1372 (9th Cir. 1990) (“An individual is not ‘otherwise qualified’ if [he]

cannot perform the essential functions of [his] job.”); Brown v. Lucky Stores, Inc.,

246 F.3d 1182, 1188 (9th Cir. 2001) (concluding that employer was under no

affirmative obligation to provide an accommodation for employee who never

requested an accommodation).

        Vaksman’s remaining contentions are unpersuasive.

        Vaksman’s motion to expedite is denied as moot.

        AFFIRMED.




/Research                                 2                                    08-35771
