                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           AUG 16 2016
                    UNITED STATES COURT OF APPEALS                     MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT

DANIEL HANSEN,                                   No. 14-16116

              Plaintiff - Appellant,             D.C. No. 2:13-cv-00750-JCM-
                                                 VCE
 v.

ROBINSON NEVADA MINING                           MEMORANDUM*
COMPANY,

              Defendant - Appellee.



                    Appeal from the United States District Court
                             for the District of Nevada
                     James C. Mahan, District Judge, Presiding

                             Submitted July 18, 2016**
                             San Francisco, California

Before: GRABER and TALLMAN, Circuit Judges, and EDMUNDS,*** Senior
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 that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
        ***
           The Honorable Nancy G. Edmunds, Senior United States District Judge
for the Eastern District of Michigan, sitting by designation.
      Robinson Nevada Mining Company (“RNMC”) hired Daniel Hansen as a mine

maintenance mechanic in March 2010. Eight months later, Hansen was seriously

injured in a car accident. He received the maximum amount of short-term disability

benefits sponsored by RNMC and was terminated thereafter. Hansen sued, alleging

violations of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq.,

Nevada’s anti-discrimination statute, Nev. Rev. Stat. § 613.330,1 and the Family and

Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq. The district court granted

summary judgment in favor of RNMC, dismissing all of Hansen’s claims. Hansen

appeals the dismissal of his ADA and related state-law claims. Reviewing de novo,

Smith v. Clark Cty. Sch. Dist., 727 F.3d 950, 954 (9th Cir. 2013), we affirm.

      To prevail under the ADA, Hansen bears the burden of demonstrating that he

is a “qualified individual,” meaning that he could perform the essential functions of

his position, with or without reasonable accommodation. Kennedy v. Applause, Inc.,

90 F.3d 1477, 1481 (9th Cir. 1996). Like the district court, we find no genuine issue

of material fact as to whether Hansen could perform the essential functions of his job,

with or without reasonable accommodation.



      1
       A discrimination claim under Nevada Revised Statute § 613.330 is analyzed
under federal anti-discrimination law. See Apeceche v. White Pine Cty., 615 P.2d
975, 977-78 (Nev. 1980). Accordingly, we analyze Hansen’s ADA and state law
claims together.
                                          2
       Hansen admitted he could not perform his prior job and testified at length

regarding conditions that prevented him from performing essential functions of the

position (e.g., dizziness and disorientation when lifting heavy objects or climbing

stairs). Hansen’s doctor2 also concluded that, for an unknown period of time, Hansen

would be unable to do his previous job. The fact that two neurologists concluded that

Hansen no longer qualified for short-term disability benefits does not create a triable

issue of fact. Hansen’s admitted inability to work as a mine maintenance mechanic

compels the conclusion that he could not perform the essential functions of his prior

job.

       In addition, Hansen failed to meet his burden of showing that a reasonable

accommodation existed that would have enabled him to retain his employment. Dark

v. Curry Cty., 451 F.3d 1078, 1088 (9th Cir. 2006). Although RNMC bore an

“affirmative obligation to engage in an interactive process in order to identify, if

possible, a reasonable accommodation,” id., an employer is liable for failing to

provide reasonable accommodation only if it is responsible for the breakdown in the

interactive process, Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1089 (9th Cir.

2002). Here, Hansen testified that he met with Human Resources representatives,


       2
       Although Hansen now argues it is “factually inaccurate” to refer to Dr.
Seigel as his doctor for his car wreck injuries, this assertion is squarely
contradicted by the record.
                                          3
discussed at least two alternative positions (a supervisor position and a dispatcher

position), and did not raise any other options because he didn’t believe there was “any

sense” in doing so. We cannot conclude that RNMC was responsible for a breakdown

in the process. Moreover, Hansen was either not qualified for or could not perform the

duties of the positions that were available. Contrary to Hansen’s argument, the failure

to offer a “light duty” position does not violate the ADA. “Light duty” is not an

existing, vacant position at RNMC, and the ADA does not require the creation of a

position as a reasonable accommodation. Wellington v. Lyon Cty. Sch. Dist., 187 F.3d

1150, 1155 (9th Cir. 1999).

      Finally, Hansen’s argument that RNMC violated the ADA by failing to make

an “individualized assessment” of Hansen, as discussed in Echazabal v. Chevron

USA, Inc., 336 F.3d 1023, 1027 (9th Cir. 2003), also fails. RNMC did not terminate

Hansen because he was a “direct threat” to the health or safety of himself or others.

      AFFIRMED.




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