FILED

NOT FOR PUBLICATION

JUN 28 2023

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

DOLORES CALDERON, No. 22-55305

Plaintiff-Appellant, D.C. No. 2:20-cv-07869-PSG-JEM v.

BIO-MEDICAL APPLICATIONS OF MEMORANDUM*

MISSION HILLS, INC.; et al.,

Defendants-Appellees,

and

FRESENIUS USA, INC.; et al.,

Defendants.

Appeal from the United States District Court for the Central District of California Philip S. Gutierrez, Chief District Judge, Presiding

Argued and Submitted June 14, 2023 Pasadena, California

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Before: BYBEE and CHRISTEN, Circuit Judges, and FITZWATER,** District Judge.

Plaintiff-Appellant Dolores Calderon (“Calderon”) appeals a summary

judgment in favor of Defendants-Appellees Bio-Medical Applications of Mission

Hills, Inc. and Fresenius Management Services, Inc. (“Defendants”)1 on Calderon’s

claims under California law for disability discrimination, failure to accommodate,

failure to engage in the interactive process, retaliation, and wrongful termination. We

have jurisdiction under 28 U.S.C. § 1291, and we affirm.

1. “This court reviews a district court’s grant of summary judgment de novo.”

T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 629 (9th Cir.

1987).

2. The district court did not err in dismissing Calderon’s disability

discrimination claim. The evidence in the summary judgment record demonstrates

that Calderon could not perform the essential functions of her position, with or

without reasonable accommodation, and there was no evidence of a vacant position

that Calderon was qualified for and to which she could have been assigned.

Therefore, Calderon was not a qualified individual under the California Fair

** The Honorable Sidney A. Fitzwater, United States District Judge for the Northern District of Texas, sitting by designation. 1 Although the docket lists Biomedical Applications Management Company, Inc. as a Defendant-Appellee, all claims against it were dismissed before the district court entered summary judgment. -2- Employment and Housing Act, Cal. Gov’t Code § 12940(a)(1)–(2) (West 2019), and

the district court did not err in dismissing her disability discrimination claim. See

Atkins v. City of Los Angeles, 214 Cal. Rptr. 3d 113, 131 (Ct. App. 2017); Nealy v.

City of Santa Monica, 184 Cal. Rptr. 3d 9, 22–23 (Ct. App. 2015).

3. The district court did not err in dismissing Calderon’s claim for failure to

accommodate because no reasonable accommodation would have enabled her to

perform the essential functions of her position. See Scotch v. Art Inst. of Cal., 93 Cal.

Rptr. 3d 338, 358–59 (Ct. App. 2009); Nadaf-Rahrov v. Neiman Marcus Grp., Inc.,

83 Cal. Rptr. 3d 190, 212 (Ct. App. 2008); Cal. Gov’t Code § 12940(m).

4. The district court did not err in dismissing Calderon’s claim for failure to

engage in the interactive process because that process could not have produced a

reasonable accommodation that would have enabled Calderon to perform the essential

functions of her position. Scotch, 93 Cal. Rptr. 3d at 365; Nealy, 184 Cal. Rptr. 3d at

24–25; Cal. Gov’t Code § 12940(n).

5. The district court did not err in dismissing Calderon’s retaliation claim. The

circumstantial evidence of retaliation that Calderon presented was insufficient to

demonstrate that Defendants’ legitimate, non-retaliatory reason for the adverse

employment action—that Calderon was terminated because she was unable to perform

the essential functions of her position—was pretextual. See Dep’t of Fair Emp. &

-3- Hous. v. Lucent Techs., Inc., 642 F.3d 728, 746 (9th Cir. 2011); Cal. Gov’t Code §

12940(a)(1), (h), (m)(2).

6. The district court did not err in dismissing Calderon’s wrongful termination

claim. She failed to raise a genuine issue of material fact that Defendants violated any

constitutional or statutory provisions when they took adverse employment action

against her. See Mendoza v. W. Med. Ctr. Santa Ana, 166 Cal. Rptr. 3d 720, 723–24

(Ct. App. 2014).

AFFIRMED.

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