                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       MAY 16 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

JOANNE M. OGDEN,                                No.    16-35295

                Plaintiff-Appellant,            D.C. No. 2:12-cv-00584-RMP

 v.
                                                MEMORANDUM*
PUBLIC UTILITY DISTRICT NO 2 OF
GRANT COUNTY, DBA Grant County
PUD,

                Defendant-Appellee.

                   Appeal from the United States District Court
                     for the Eastern District of Washington
                Rosanna Malouf Peterson, District Judge, Presiding

                       Argued and Submitted April 11, 2018
                               Seattle, Washington

Before: HAWKINS and GRABER, Circuit Judges, and TEILBORG,** District
Judge.

      Plaintiff-Appellant Joanne Ogden (“Ogden”) appeals the district court’s

grant of summary judgment to Defendant-Appellee Public Utility District No. 2 of

Grant County (“PUD”) on her Americans with Disabilities Act (“ADA”), Family

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable James A. Teilborg, United States District Judge for the
District of Arizona, sitting by designation.
Medical Leave Act (“FMLA”), and related state claims. We have jurisdiction

pursuant to 28 U.S.C. § 1291 and affirm.

I.    ADA and Related State Claims

      Ogden alleges that she suffered actionable discrimination under the ADA in

the forms of disparate treatment, failure to accommodate, and harassment by PUD.

The ADA prohibits an employer from discriminating “against a qualified

individual on the basis of disability[.]” 42 U.S.C. § 12112(a). Thus, to establish a

prima facie case under the ADA, a plaintiff must show that: (1) she is disabled, (2)

she is qualified to perform the essential functions of her position, and (3) she

suffered an adverse employment action because of her disability. See Hutton v. Elf

Atochem N. Am., Inc., 273 F.3d 884, 891 (9th Cir. 2001).1 To withstand a motion

for summary judgment on an ADA claim, a plaintiff must either provide sufficient

direct evidence of an employer’s discriminatory intent, or give rise to an inference

of discrimination by satisfying the burden-shifting test from McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973). See Cordova v. State Farm Ins. Cos., 124


      1
              Ogden’s related state claim arises under the Washington Law Against
Discrimination (“WLAD”), which is construed analogously with the ADA. See,
e.g., Hardage v. CBS Broad. Inc., 427 F.3d 1177, 1183 (9th Cir. 2005) (stating that
“Washington’s Law Against Discrimination tracks federal law”), amended on
denial of reh’g, 433 F.3d 672 (9th Cir.), amended on denial of reh’g, 436 F.3d
1050 (9th Cir. 2006); Arthur v. Whitman Cty., 24 F. Supp. 3d 1024, 1033 (E.D.
Wash. 2014) (“The WLAD substantially parallels Title VII.” (internal quotation
marks omitted)). Accordingly, the court will treat the ADA and WLAD claims
consistently.

                                           2
F.3d 1145, 1148 (9th Cir. 1997) (citing Wallis v. J.R. Simplot Co., 26 F.3d 885,

889 (9th Cir. 1994)).

      Here, assuming that the two actions alleged—placement in a different

position and delay in career path—were adverse employment actions, there is

insufficient direct evidence of discriminatory animus to create a genuine issue of

material fact. Even if Ogden establishes the prima facie case under the first step of

McDonnell Douglas, PUD gave legitimate, non-discriminatory reasons for both

actions, and the record evidence does not create a genuine issue of material fact as

to pretext. With regard to the placement, Ogden’s former position was in fact

eliminated in its previous form, as a cost-cutting measure, with its functions

absorbed by another employee. Additionally, Ogden’s extensive absences meant

that she could not perform an essential function of a supervisor’s job: being present

at work to supervise. With respect to the delay in career path, the delay benefitted

Ogden because she had a chance to prove that her performance met the required

standards and, once she did, was compensated retroactively. To the extent that

Ogden was treated differently, it was for a legitimate, non-discriminatory reason on

this record.

      Moreover, there is insufficient evidence of harassment to support an ADA

claim on that ground. All leave requested by Ogden was granted by PUD, and her

other demands were met, so there is likewise no evidence of failure to


                                         3
accommodate Ogden’s disability. Accordingly, the district court did not err in

granting summary judgment to PUD on Ogden’s ADA and WLAD claims.

II.   FMLA and Related State Claims

      On the FMLA claim, Ogden had no right to restoration to her old job

because (1) that job no longer existed for reasons unrelated to her FMLA leave,

and (2) she was unable to perform an essential function of the old position: regular

attendance. See Gambini v. Total Renal Care, Inc., 486 F.3d 1087, 1097 (9th Cir.

2007) (“Though the FMLA generally confers the right to reinstatement, an

employer may still terminate [or transfer] an employee during her leave if the

employer would have made the same decision had the employee not taken leave.”

(citations omitted)); see also 29 C.F.R. § 825.216(c) (“If the employee is unable to

perform an essential function of the position because of a physical or mental

condition, including the continuation of a serious health condition . . . , the

employee has no right to restoration to another position under the FMLA.”).

      Following the same analysis as on Ogden’s ADA and WLAD claims, there

is no evidence of retaliation to refute PUD’s legitimate explanations for the

allegedly adverse employment actions, making summary judgment appropriate

even if Ogden established a prima facie case under the FMLA or Washington State

Family Leave Act (“WFLA”). See Cordova, 124 F.3d at 1150. Accordingly, the

district court did not err in granting summary judgment to PUD on Ogden’s FMLA


                                         4
and WFLA claims.

     AFFIRMED.




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