                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           AUG 19 2015
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


JOSEPH CORDERO,                                  No. 13-15563

              Plaintiff - Appellant,             D.C. No. 4:10-cv-00642-JGZ

 v.
                                                 MEMORANDUM*
MIRAVAL HOLDING, LLC and
MIRAVAL RESORT TUCSON, LLC,

              Defendants - Appellees.


                    Appeal from the United States District Court
                             for the District of Arizona
                    Jennifer G. Zipps, District Judge, Presiding

                             Submitted May 15, 2015**
                              San Francisco, California

Before: PAEZ and CLIFTON, Circuit Judges and DUFFY,*** District Judge.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable Kevin Thomas Duffy, District Judge for the U.S.
District Court for the Southern District of New York, sitting by designation.
      Joseph Cordero appeals the district court’s grant of summary judgment in

favor of Miraval Holding, LLC (“Miraval”) on all of his claims under the

Americans with Disabilities Act (“ADA”). Cordero argues that Miraval

discriminated against him when it terminated him; that Miraval discriminated and

retaliated against him when it placed Cordero on probation, gave him a

performance improvement plan, and required him to attend performance evaluation

meetings; and that Miraval failed to provide him a reasonable accommodation

when it refused to permit his grandmother to attend his weekly performance

evaluation meetings. We affirm.

      1. Miraval argues that Cordero waived his claim of discrimination related to

his termination because he failed to raise it before the district court. As a pro se

plaintiff, Cordero’s pleadings must be liberally construed; the sole question is

whether Miraval had fair notice of Cordero’s discriminatory termination claim.

See Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010); Yamaguchi v. U.S. Dep’t of

the Air Force, 109 F.3d 1475, 1481 (9th Cir. 1997). Cordero raised this claim

multiple times in his district court filings, and, liberally construed, Cordero’s

second amended complaint alleged discriminatory conduct inclusive of his

termination. Moreover, Miraval must have had fair notice that discriminatory




                                           2
termination was one of Cordero’s claims because Miraval affirmatively defended

against this claim in its Motion for Summary Judgment.

      However, Cordero has not met his burden of showing that he was a qualified

individual within the meaning of the ADA when Miraval terminated his

employment. See Kennedy v. Applause, Inc., 90 F.3d 1477, 1480-81 (9th Cir.

1996). Cordero’s doctor sent Miraval a letter stating that Cordero’s stroke “will

likely cause him to remain disabled into the foreseeable future” because “the right-

sided weakness he has suffered as a result of the stroke will make it very difficult

for him to be employed in any capacity that requires use of his extremities,” and

concluded that Cordero “is therefore considered medically disabled.”

Additionally, Miraval sent Cordero a letter explaining the basis for his termination,

and his grandmother responded to the letter, but did not contest Miraval’s

understanding that Cordero was unable to perform his essential job functions.

Instead, she requested that Miraval extend the date of his termination, which

Miraval did. In the face of this evidence, Cordero’s argument that he would have

been qualified if he had been put on an extended unpaid medical leave fails.

      2. Cordero’s claim that Miraval retaliated against him when it placed him on

probation and required him to attend performance evaluation meetings likewise

fails. To establish a prima facie case of retaliation, Cordero was required to show


                                          3
that (1) he engaged in a protected activity, (2) he suffered an adverse employment

decision, and (3) that there was a causal link between the protected activity and the

adverse decision. Pardi v. Kaiser Found. Hosps., 389 F.3d 840, 849 (9th Cir.

2004). “If the employee establishes a prima facie case, the employee will avoid

summary judgment unless the employer offers legitimate reasons for the adverse

employment action, whereupon the burden shifts back to the employee to

demonstrate a triable issue of fact as to whether such reasons are pretextual.” Id.

Miraval provided a legitimate reason for its adverse employment action: another

employee’s complaint against Cordero for rude and disrespectful behavior.

Cordero has failed to show that Miraval’s reason was pretextual, and its motive

discriminatory. See Head v. Glacier Nw., Inc., 413 F.3d 1053, 1065 (9th Cir.

2005).

      Cordero has also failed to show that Miraval discriminated against him when

it disciplined him. Cordero argues that any behavioral issues were caused by his

medication, and that, therefore, disciplining him for his behavior was tantamount

to disciplining him for his disability. Here, the record does not show that Miraval

was aware of the behavioral side effects of Cordero’s medication when it placed

him on probation; rather, it shows that Cordero informed Miraval of the behavioral

side effects after Miraval initiated disciplinary action. If the employer did not


                                           4
know that an employee’s behavioral problems stemmed from his disability, then

“animus based on [the employee’s] disability” could not have been a motivating

factor in the employer’s decision. Head, 413 F.3d at 1065.

      3. Cordero has failed to raise a genuine issue of triable fact with respect to

his claim for failure to accommodate. The magistrate judge did not err in weighing

the risks and alternatives of the accommodation requested with the hardship to

Miraval, the employer, and the district court did not err in adopting the magistrate

judge’s recommendation. See Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243,

1247 (9th Cir. 1999).

      AFFIRMED.




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