                                                                           FILED
                            NOT FOR PUBLICATION                             FEB 12 2010

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



JUDITH LUCKE,                                    No. 09-35142

              Plaintiff - Appellant,             D.C. No. 3:06-cv-01149-ST

  v.
                                                 MEMORANDUM *
MULTNOMAH COUNTY; BERNIE
GIUSTO,

              Defendants - Appellees.



                    Appeal from the United States District Court
                             for the District of Oregon
                   Janice M. Stewart, Magistrate Judge, Presiding

                      Argued and Submitted February 4, 2010
                               Seattle, Washington

Before: RYMER, GOULD and BYBEE, Circuit Judges.

       Judith Lucke appeals the district court’s judgment in her action against

Multnomah County and various employees of Multnomah County. We have

jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      The district court did not abuse its discretion by excluding certain

comparator evidence. Multnomah County did not stipulate that other county

employees who allegedly received less discipline for similar misconduct had not

used FMLA leave. Similarly, Multnomah County did not stipulate that other

county employees who allegedly received less discipline for similar misconduct

had not requested an ADA accommodation. Nor did Lucke provide such evidence

at trial. See Tritchler v. County of Lake, 358 F.3d 1150, 1155 (9th Cir. 2004). The

district court did not adopt a per se evidentiary rule by limiting comparator

evidence to other correctional employees because the court based its ruling on the

unique factual circumstances at issue, namely, that Lucke, unlike the other

employees, was a corrections employee who was not involved in law enforcement

or management. See Vasquez v. County of Los Angeles, 349 F.3d 634, 641 (9th

Cir. 2003).

      The district court did not err when it dismissed Lucke’s ADA failure-to-

accommodate and Title VII retaliation claims at summary judgment. Under the

ADA, an employer must in good faith engage in an interactive process with the

employee to determine if a reasonable accommodation is available. Barnett v. U.S.

Air, Inc., 228 F.3d 1105, 1116 (9th Cir. 2000) (en banc), vacated on other grounds,

535 U.S. 391 (2002). Multnomah County initiated the interactive process with


                                          2
Lucke, offered Lucke almost every accommodation that she requested, and the

record as a whole establishes that the Sheriff’s office acted in good faith to

accommodate Lucke. Lucke cannot assert subjective bad faith of the county when

it offered to accommodate her, without linking some rejection of a requested

accommodation to bad faith or showing how an accommodation refused was

reasonable on its face. See U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 400 (2002).

      To survive summary judgment under Title VII, Lucke had to adduce a

triable issue of fact that Multnomah County’s justifications for terminating Lucke

were merely a pretext for discrimination. Stegall v. Citadel Broad. Co., 350 F.3d

1061, 1066 (9th Cir. 2003). Here, the Multnomah County Sheriff’s office

submitted extensive evidence of conduct of Lucke that had generated

investigations and that suggested she was not fit for the corrections job. This

included evidence that a prisoner had escaped on her watch, that she had repeatedly

not joined to resist prisoner violence against another custodian, that she

encouraged inmates to fight, that she didn’t follow superiors’ direction concerning

procedures for recording events in a log book, and, perhaps most strikingly, that

she had left her personal firearm loaded and unattended in a locker room cleaned

by inmates. In response to this ample evidence, Lucke had to show evidence of

pretext to avoid summary judgment. But the record as a whole shows that the


                                           3
problems encountered by the Sheriff’s office with Lucke were genuine, not

pretextual. Lucke’s citation to the same minimal evidence that supported her

prima facie case of retaliation, a statement unrelated to Lucke’s sex and the

proximity of time between the filing of the complaint and the adverse actions, was

insufficient to raise an issue of fact regarding pretext. See Wallis v. J.R. Simplot

Co., 26 F.3d 885, 890 (9th Cir. 1994).

      The district court also properly dismissed Lucke’s ADA discrimination and

retaliation claims as well as her FMLA interference and First Amendment

retaliation claims.1 The district court determined that no reasonable juror could

conclude that Lucke could perform the essential functions of her job and that

Multnomah County had sustained its burden of proof on the mixed-motive defense.

Either one of these conclusions was sufficient to dismiss Lucke’s ADA

discrimination claim, see Head v. Glacier Nw., Inc., 413 F.3d 1053, 1065 (9th Cir.

2005); Kees v. Wallenstein, 161 F.3d 1196, 1199 (9th Cir. 1998), and Lucke only

appeals the former, see Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999)

(“[O]n appeal, arguments not raised by a party in its opening brief are deemed



      1
             Lucke’s state-law discrimination and retaliation claims were
submitted to the court, not the jury, and the court found in favor of Multnomah
County. Lucke did not challenge the district court’s findings on that issue. Smith
v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).

                                           4
waived.”). In any event, the only doctor to evaluate Lucke’s ability to perform the

essential functions of her job concluded that she did not have that ability.

      No reasonable jury could have found that Multnomah County violated the

FMLA because Lucke had taken FMLA leave unabated for several years and the

evidence showed only that Multnomah County was aware that Lucke had

previously taken FMLA leave.2 Similarly, because the district court did not abuse

its discretion by excluding Lucke’s comparator evidence, and because considerable

time elapsed between the filing of Lucke’s discrimination complaints and the

disciplinary actions, Lucke could not show that Multnomah County or the

individual employees retaliated against her for filing the complaints. See, e.g.,

Manatt v. Bank of Am., NA, 339 F.3d 792, 802 (9th Cir. 2003).

      AFFIRMED




      2
             Lucke’s Oregon Family Leave Act claim was dismissed at summary
judgment, and Lucke does not challenge on appeal that dismissal. See Smith, 194
F.3d at 1052.

                                           5
