                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           OCT 18 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


LUKE YEAGER,                                     No.   14-35348

              Plaintiff-Appellant,               D.C. No. 2:12-cv-00360-LRS

 v.
                                                 MEMORANDUM*
KAISER ALUMINUM WASHINGTON,
LLC, a Delaware limited liability
company,

              Defendant-Appellee.


                    Appeal from the United States District Court
                      for the Eastern District of Washington
                     Lonny R. Suko, District Judge, Presiding

                            Submitted October 5, 2016**
                               Seattle, Washington

Before: W. FLETCHER, FISHER, and N.R. SMITH, Circuit Judges.

      Luke Yeager appeals the district court’s grant of summary judgment to

Kaiser Aluminum Washington, LLC. We affirm the ruling of the district court.


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      1. The district court correctly dismissed Yeager’s claim against Kaiser,

because he failed to establish a prima facie case of disability discrimination. To

establish a prima facie case of disability discrimination, Yeager must show he “(1)

was within the protected group; (2) was discharged; (3) was replaced by a person

outside the group; and (4) was qualified to do the job.” Kastanis v. Educ.

Emps.Credit Union, 859 P.2d 26, 30 (Wash. 1993) (en banc). He does not make it

past the first prong.

      Yeager does not contend he was actually disabled at the time of his

termination; instead he maintains only that he was “perceived” as disabled.1 To

establish that he was perceived as disabled, Yeager must show that Kaiser

“believe[d] either that [Yeager had] a substantially limiting impairment that [he

did] not have or that [he had] a substantially limiting impairment when, in fact, the

impairment [was] not so limiting.” EEOC v. United Parcel Serv., Inc., 306 F.3d

794, 803 (9th Cir. 2002) (quoting Sutton v. United Air Lines, Inc., 527 U.S. 471,

489 (1999)); see also Barnes v. Wash. Nat. Gas Co., 591 P.2d 461, 465 (Wash. Ct.

App. 1979) (“The class protected by the statute is those persons whom the

employer discharges or intends to discharge because he believes the person is


      1
        Washington law prohibits employment discrimination based on an
employee’s actual or perceived disability. See Wash. Rev. Code §§ 49.60.180(2)
(2007), 40.60.040(7)(a)(i-iii) (2009).
                                          2
afflicted with a ‘mental, sensory, or physical handicap.’”).2 Yeager can only

survive summary judgment if a reasonable judge or jury could find that his

perceived disability was a “substantial motivating factor” in Kaiser’s decision to

terminate him. Hines v. Todd Pac. Shipyards Corp., 112 P.3d 522, 529 (Wash. Ct.

App. 2005).

      Kaiser’s labor relations manager made the decision to terminate Yeager.

There is no evidence in the record indicating that the labor relations manager knew

anything about Yeager’s medical condition or medical treatment. Further, Yeager

does not allege that the labor relations manager perceived him as disabled. He

alleges only that his nurse care manager perceived him as disabled and that this

perception should be imputed to the labor relations manager. Even if the nurse care

manager’s alleged perception were imputed to the labor relations manager, Yeager

could not demonstrate on this record that the imputed perception motivated his

termination. Therefore, Yeager’s disability claim fails.3



      2
        Washington courts look to federal case law interpreting the Americans with
Disabilities Act to guide their interpretation of the Washington Law Against
Discrimination. See Kumar v. Gate Gourmet, Inc., 325 P.3d 193, 197 (Wash. 2014)
(en banc).
      3
        For the same reason, Yeager’s allegation that the nurse care manager’s
perception should be imputed to Kaiser under a “cat’s paw” theory does not
provide a basis for relief.
                                          3
      2. Because Yeager failed to establish he was perceived as disabled, we need

not determine whether Kaiser’s articulated reason for terminating Yeager was a

pretext for discrimination.

      3. The district court correctly denied Yeager’s claims for failure to

accommodate and failure to engage in the interactive process of providing an

accommodation. Under Washington law, an employee is only entitled to an

accommodation if the employee “in fact” has an impairment that substantially

limits his ability to work. See Wash. Rev. Code § 49.60.040(7)(d) (2009); see also

Kaplan v. City of N. Las Vegas, 323 F.3d 1226, 1232-33 (9th Cir. 2003). Yeager’s

claims fail because he alleges only perceived disability, not disability in fact.

      4. Yeager argues that the district court erred in denying his motions to

strike. However, Yeager fails to provide reasoning in his briefs, explaining how the

district court abused its discretion. An appellant must provide reasoning for its

position on appeal. See Resnick v. Netflix, Inc. (In re Online DVD-Rental Antitrust

Litig.), 779 F.3d 914, 930 (9th Cir. 2015).

      AFFIRMED.




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