                                                                           FILED
                            NOT FOR PUBLICATION
                                                                           OCT 25 2016
                     UNITED STATES COURT OF APPEALS                     MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


JAMES H. BRYAN, individually and on               No.   14-35235
behalf of all others similarly situated,
                                                  D.C. No. 3:13-cv-05934-RBL
              Plaintiff-Appellant,

 v.                                               MEMORANDUM*

WAL-MART STORES, INC., a Delaware
corporation,

              Defendant-Appellee.


                    Appeal from the United States District Court
                      for the Western District of Washington
                    Ronald B. Leighton, District Judge, Presiding

                       Argued and Submitted October 4, 2016
                               Seattle, Washington

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

      James H. Bryan appeals the district court’s grant of Wal-Mart’s motion to

dismiss. We affirm the ruling of the district court.

      1. When ruling on a Federal Rule of Civil Procedure 12(b)(6) motion, a



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
district court should only consider the pleadings, documents incorporated into the

complaint (when the authenticity of the documents is not disputed and the

plaintiff’s complaint necessarily relies on the documents), and matters of public

record. See Lee v. City of Los Angeles, 250 F.3d 668, 688–89 (9th Cir. 2001).

However, the introduction of other material does not automatically convert the

motion to dismiss into a motion for summary judgment when the record does not

suggest reliance on the extraneous materials. See N. Star Int’l v. Ariz. Corp.

Comm’n, 720 F.2d 578, 582 (9th Cir. 1983). The district court did not convert the

motion to dismiss into a motion for summary judgment, because the record does

not suggest the district court relied on documents outside the pleadings or

documents not properly incorporated into the complaint.

       2. We review de novo a district court’s dismissal of a complaint for failure

to state a claim under Rule 12(b)(6). Dougherty v. City of Covina, 654 F.3d 892,

897 (9th Cir. 2011). We may affirm the district court on any basis supported by the

record, “even if the district court did not reach the issue or relied on different

grounds or reasoning.” Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1295 (9th

Cir. 1998). To survive a Rule 12(b)(6) motion, a complaint must contain sufficient

factual matter, accepted as true, “to state a claim to relief that is plausible on its

face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial


                                             2
plausibility when the plaintiff pleads factual content that allows the court to draw

the reasonable inference that the defendant is liable for the misconduct alleged.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

       Under 42 U.S.C. § 12112(a), “[n]o covered entity shall discriminate against

a qualified individual on the basis of disability in regard to . . . [the] discharge of

employees.” (emphasis added). Such discrimination includes using “selection

criteria that screen out or tend to screen out an individual with a disability or a

class of individuals with disabilities.” Id. § 12112(b)(6). To survive a motion to

dismiss a disparate impact claim, Bryan must allege a disability, the use of

selection criteria, and factual allegations that allow the court to draw a reasonable

inference that the selection criteria screens out or tends to screen out Bryan on the

basis of his disability. See id.

       In his complaint, Bryan alleged facts sufficient to show he has a disability.

However, § 12112 is not so broad as to provide a disparate impact claim to any

terminated employee who also has a disability. Bryan must allege facts on which

this court could reasonably infer he was terminated on the basis of his

disability—he must establish a causal nexus. Bryan presents only a conclusory

allegation that his pharmacy license was suspended due to his disability. A review

of the documents (which both parties agree the court may consider to determine


                                            3
this motion to dismiss) reveals that Bryan’s pharmacy license was actually

suspended due to his history of adverse board action by the board of pharmacy.

Wal-Mart implemented a neutral policy dismissing all employees with any history

of adverse board action. Because this case concerns a neutral policy affecting all

those with any history of adverse board action, Bryan would have to allege a nexus

between the policy, the forgery charges that resulted in his adverse board action,

and his disability. Without establishing this causal nexus, this court cannot

reasonably infer that Wal-Mart’s neutral policy screens out or tends to screen out

Bryan on the basis of his disability.

      AFFIRMED.




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