                            NOT FOR PUBLICATION

                      UNITED STATES COURT OF APPEALS                          FILED
                              FOR THE NINTH CIRCUIT                            JUL 28 2010

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

RHONDA SMITH                                     No. 09-15694

                Plaintiff - Appellant,           D.C. No. 2:07-CV-2020-PHX-
                                                 SRB
  v.

NOAH WEBSTER BASIC SCHOOL                        MEMORANDUM*

                Defendant - Appellee.


                     Appeal from the United States District Court
                              for the District of Arizona
                      Susan R. Bolton, District Judge, Presiding

                         Argued and Submitted April 13, 2010
                              San Francisco, California

Before: SCHROEDER and N.R. SMITH, Circuit Judges, and MOODY, District
Judge.**




            *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable James Maxwell Moody, Senior United States District
Judge for the Eastern District of Arkansas, sitting by designation.
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      Rhonda Smith appeals the district court’s grant of summary judgment on her

claim of discrimination brought pursuant to The Americans with Disabilities Act

(the “ADA”). The district court had jurisdiction under 28 U.S.C. § § 1331 and

1343, and we have jurisdiction under 28 U.S.C. § 1291. We review de novo,

Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir.2004), and we affirm in part and

reverse and remand in part.

      Smith, who is legally blind, was employed by the Noah Webster Basic

School, (the “School”), a charter school in Mesa, Arizona, as a kindergarten

teacher for the 2006-2007 academic term. When Smith’s teaching contract was

not renewed for the 2007-2008 academic term, she filed a complaint in district

court contending that the School discriminated against her in violation of the ADA

based upon her disability.

      “[T]o state a prima facie case under the ADA, [a plaintiff] must show that

(1) she is a disabled person within the meaning of the ADA; (2) she is a qualified

individual, meaning she can perform the essential functions of her job; and (3)

[that her employer] terminated her because of her disability.” See Nunes v. Wal-

Mart Stores, Inc., 164 F.3d 1243, 1246 (9th Cir. 1999) (citation omitted).

      The district court correctly concluded that there was no direct evidence of

discrimination, and thus applied the burden-shifting analysis set forth in


                                          2
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–05 (1973). Applying that

framework, the district court granted the School’s motion for summary judgment

finding that Smith had failed to establish a prima facie case of discrimination

because she had failed to show that she was performing her job satisfactorily and

that even if she had established a prima facie case, she had failed to come forward

with evidence of pretext.

      We disagree. The Court finds that Smith has raised a contested issue of

material fact on whether she was qualified, with or without reasonable

accommodation, to perform the essential job functions of a kindergarten teacher

based upon the School’s failure to make further accommodations after October of

2006. See Nunes, 164 F.3d at 1246 (defining “qualified individual” under the

ADA). Moreover, the Court finds that there is a contested issue of material fact on

whether Smith presented evidence of pretext based upon the School’s director’s

statement that Smith’s contract was not renewed because Smith did “not fit in.”

      We affirm the district court, however, as to Smith’s claim that the School

failed to initiate, engage, and pursue an interactive process with Smith. Though the

School had a duty to explore further methods of accommodation had it known its

initial accommodations were failing, see Humphrey v. Memorial Hospitals Ass’n,

239 F.3d 1128, 1137 (9th Cir. 2001), the record indicates that the School was not


                                          3
aware that Smith’s difficulties were linked to a failure of its accommodations, or

even to Smith’s disability.

      The parties shall bear their own costs.

      AFFIRMED IN PART; REVERSED AND REMANDED IN PART.




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