                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             MAY 17 2010

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

CRISTOBAL ZAMUDIO,                               No. 09-16304

              Plaintiff - Appellant,             D.C. No. 3:07-cv-05713-MHP

  v.
                                                 MEMORANDUM*
CITY OF OAKLAND,

              Defendant - Appellee.


                  Appeal from the United States District Court
                      for the Northern District of California
                 Marilyn H. Patel, Senior District Judge, Presiding

                       Argued and Submitted May 13, 2010
                            San Francisco, California

Before: SILVERMAN, FISHER and M. SMITH, Circuit Judges.

       Cristobal Zamudio appeals from the district court’s order granting summary

judgment to the City. He argues that the City failed to reasonably accommodate

his disability and retaliated against him for filing worker’s compensation and




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
discrimination claims. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      California law makes it an unlawful employment practice for an employer

“to fail to make reasonable accommodation for the known physical or mental

disability of an applicant or employee.” Cal. Gov. Code § 12940(m). A

reasonable accommodation is “‘a modification or adjustment to the workplace that

enables the employee to perform the essential functions of the job held or

desired.’” Scotch v. Art Inst. of Cal., 93 Cal. Rptr. 3d 338, 358 (Ct. App. 2009)

(quoting Nadaf-Rahrov v. Neiman Marcus Group, Inc., 83 Cal. Rptr. 3d 190, 211

(Ct. App. 2008)). “[A]n employer has no duty . . . to accommodate a disabled

employee by making a temporary accommodation permanent if doing so would

require the employer to create a new position just for the employee.” Raine v. City

of Burbank, 37 Cal. Rptr. 3d 899, 908 (Ct. App. 2006).

      The undisputed evidence shows that heavy lifting, bending, and stooping

were essential functions of Zamudio’s gardener crew leader position. It also shows

that Zamudio’s disability rendered him incapable of performing those functions in

a manner that would not endanger his own health. He repeatedly reinjured himself

despite access to his only suggested accommodation—a helper. The City made

reasonable efforts to find him an alternative position and eventually returned him

to the gardener crew leader position after an independent doctor released him to


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return to work. In light of the evidence, the district court correctly concluded that

there was no genuine issue of material fact regarding the City’s accommodation of

Zamudio’s disability.

      Zamudio also argues that the City’s delay in returning him to his position is

evidence of retaliation. However, the undisputed evidence shows that Zamudio

was not given a full release to return to work until May 2008, and he returned to

work shortly thereafter. There is no evidence that the City used the absence of a

release as a pretext to keep him out of his job. Because there is no evidence of a

causal connection between Zamudio’s protected activities and the timing of his

return to work, the district court correctly granted summary judgment to the City.

See Morgan v. Regents of Univ. of Cal., 105 Cal. Rptr. 2d 652, 665 (Ct. App. 2000)

(citing California and federal authorities).

      AFFIRMED.




                                          -3-
                                                                                FILED
Zamudio v. City of Oakland, No. 09-16304                                         MAY 17 2010

                                                                             MOLLY C. DWYER, CLERK
RAYMOND C. FISHER, dissenting:                                                U.S. COURT OF APPEALS



      Notwithstanding the city’s commendable efforts to accommodate Mr.

Zamudio in other respects, I am not persuaded that summary judgment was

properly granted with respect to Zamudio’s claim that the city unlawfully

discriminated against him on the basis of disability in May 2005, when the city

suspended Zamudio’s employment based on his 50-pound lifting restriction.

Whether the ability to lift over 50 pounds without assistance was an essential

function of the job is a disputed issue of fact, especially in light of the omission of

any such requirement from the essential job functions analysis prepared on behalf

of the city in August 2005. Whether the city suspended Zamudio’s employment

out of concern for his safety is also disputed, especially in light of the deposition

testimony by Ms. Holmes, which indicates that Zamudio was suspended based on

the 50-pound lifting restriction rather than for other possible reasons. Our role on

summary judgment is not to decide disputed questions of fact. I therefore

respectfully dissent.
