Stephan Dicomitis v. UPS

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 21 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEPHAN DICOMITIS, No. 17-35948
Plaintiff-Appellant, D.C. No. 9:16-cv-00094-DLC
v.
MEMORANDUM*
UNITED PARCEL SERVICE, INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Montana
Dana L. Christensen, Chief Judge, Presiding
Submitted November 9, 2018**
Portland, Oregon
Before: TALLMAN and IKUTA, Circuit Judges, and BOUGH,*** District Judge.
Stephan Dicomitis (“Dicomitis”) appeals the district court’s grant of
summary judgment in favor of United Parcel Service, Inc. (“UPS”) on his
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Stephen R. Bough, United States District Judge for the
Western District of Missouri, sitting by designation.
wrongful termination and failure to accommodate claims under the Americans with
Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq., and the Montana Human
Rights Act (“MHRA”), Mont. Code Ann. §§ 49-2-101 et seq.1 We have
jurisdiction under 28 U.S.C. § 1291. After reviewing the district court’s grant of
summary judgment de novo, Smith v. Clark Cty. Sch. Dist., 727 F.3d 950, 954 (9th
Cir. 2013), we affirm.
To prevail on his claims, Dicomitis bears the burden of demonstrating he is a
“qualified individual.” Weyer v. Twentieth Century Fox Film Corp., 198 F.3d
1104, 1108 (9th Cir. 2000) (“An ADA plaintiff bears the burden of proving that
she is a ‘qualified individual with a disability[.]’”). A qualified individual is
defined as “an individual who, with or without reasonable accommodation, can
perform the essential functions of the employment position that such individual
holds or desires.” 42 U.S.C. § 12111(8). A reasonable accommodation may
include “reassignment to a vacant position.” 42 U.S.C. § 12111(9)(B).
Dicomitis failed to show he is a qualified individual. Dicomitis represented
to the Social Security Administration (“SSA”) that he is disabled and unable to
work. Weyer, 198 F.3d at 1108 (“A totally disabled person who cannot ‘perform
the essential functions of the employment position’ with or without reasonable
1
We analyze the ADA and MHRA claims together. Pannoni v. Bd. of Trustees, 90
P.3d 438, 444 (Mont. 2004) (“[T]he MHRA is closely modeled after federal anti-
discrimination statutes such as the ADA[.]”).
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accommodations thus cannot be a ‘qualified individual.’”). Dicomitis has received
disability benefits since 2008, and continues to receive such benefits. Dicomitis
did not provide an adequate explanation for his prior representation of disability to
the SSA, and his current assertion that he is a qualified individual. Cleveland v.
Policy Mgmt. Sys. Corp., 526 U.S. 795, 806–07 (1999).
Dicomitis is not a qualified individual for the additional reason that he failed
to request a reasonable accommodation at or near the time of his termination.
Dark v. Curry Cty., 451 F.3d 1078, 1088 (9th Cir. 2006) (“[Plaintiff] has the
burden of showing the existence of a reasonable accommodation that would have
enabled him to perform the essential functions of an available job.”). As a result,
the district court correctly found Dicomitis not qualified because he failed to show
that he requested, and could have performed, a vacant UPS position at or near the
time of his termination. U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 401–02
(2002) (recognizing that a plaintiff must “show that an ‘accommodation’ seems
reasonable on its face”); Dark, 451 F.3d at 1089.
The district court also properly dismissed Dicomitis’s accommodation
claims as time barred and unexhausted. See Mont. Code Ann. § 49-2-501(4)(a)-
(b); Mont. Code. Ann. § 49-2-512(3).
AFFIRMED.
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