FILED

MAR 14 2013

NOT FOR PUBLICATION

MOLLY C. DWYER, CLERK

U .S. C O U R T OF APPE ALS

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DONNA KRIEG, No. 11-17423

Plaintiff-Appellant, D.C. No. 3:10-cv-02491-WHA

v. MEMORANDUM *

U.S. FOODSERVICE, INC.,

Defendant-Appellee.

Appeal from the United States District Court for the Northern District of California William Alsup, District Judge, Presiding

Submitted March 12, 2013 ** San Francisco, California

Before: WALLACE, MCKEOWN, and IKUTA, Circuit Judges.

* 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). Donna Krieg appeals the district court’s summary judgment in favor of U.S.

Foodservice, Inc. on multiple claims relating to her termination as a clerical

assistant after she suffered a back injury. We affirm.

Because Krieg’s deposition testimony flatly contradicted the statements in

her declaration that her supervisors informed her she was terminated due to failure

to perform and that her supervisor complained about her work restrictions, the

district court did not err in striking those statements as shams. See Van Asdale v.

Int'l Game Tech., 577 F.3d 989, 998 (9th Cir. 2009). Because Krieg failed to list

Fran LaGrange in her Rule 26 disclosure, the district court did not abuse its

discretion in deeming LaGrange’s declaration inadmissible. Goodman v. Staples

The Office Superstore, LLC, 644 F.3d 817, 827 (9th Cir. 2011).

Although U.S. Foodservice informed Krieg of its decision to terminate her

after her injury, the unrebutted testimony of U.S. Foodservice decisionmakers

established that the decision to terminate Krieg preceded her injury; therefore, the

sequence of events does not raise the inference of a discriminatory motive.

Accordingly, the district court did not err in entering summary judgment in favor

of U.S. Foodservice on Krieg’s claim of disability discrimination under Cal. Gov’t

Code § 12940(a). Avila v. Continental Airlines, Inc., 165 Cal. App. 4th 1237,

1246–52 (Cal. Ct. App. 2008). To the extent U.S. Foodservice had an obligation to

2 accommodate Krieg’s injury before her termination date, Krieg’s own testimony

establishes that she was fully accommodated. Therefore, the district court also did

not err in entering summary judgment on her claims of failure to accommodate and

failure to engage in the interactive process under Cal. Gov’t Code §§ 12940(m) and

(n). Avila, 165 Cal. App. 4th at 1252–53.

U.S. Foodservice was not under a contractual obligation to offer Krieg a

position in its temporary return to work program, since its employee handbook,

which Krieg signed, expressly disclaimed any such obligation and made clear that

Krieg’s employment status was at will. Tomlinson v. Qualcomm, Inc., 97 Cal.

App. 4th 934, 944 (Cal. Ct. App. 2002).

Krieg’s intentional infliction of emotional distress claim is entirely without

merit, Hughes v. Pair, 46 Cal. 4th 1035, 1051 (Cal. 2009), and her punitive

damages claim is moot.

AFFIRMED.

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