Cinthya Aviles v. Alutiiq Securities & Technolog

FILED
NOT FOR PUBLICATION AUG 15 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CINTHYA CARBAJAL AVILES, No. 12-56144
Plaintiff - Appellant, D.C. No. 3:10-cv-02589-H-NLS
v.
MEMORANDUM*
ALUTIIQ SECURITIES &
TECHNOLOGY,
Defendant - Appellee.
Appeal from the United States District Court
for the Southern District of California
Marilyn L. Huff, District Judge, Presiding
Submitted August 13, 2013**
San Francisco, California
Before: HAWKINS, THOMAS, and McKEOWN, Circuit Judges.
Cinthya Carbajal Aviles (“Aviles”) appeals the district court’s grant of
summary judgment in favor of Alutiiq Security & Technology (“Alutiiq”). We
have jurisdiction under 28 U.S.C. § 1291, and we affirm.
*
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).
Aviles asserts employment discrimination claims under the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., and the California Fair
Employment and Housing Act (“FEHA”), Cal. Gov. Code § 12940 et seq. To
establish a prima facie case of discrimination under those Acts, Aviles must show
that she (1) is disabled, (2) is a qualified individual able to perform the essential
functions of the position, and (3) was discriminated against because of her
disability. Bates v. United Parcel Serv., Inc., 511 F.3d 974, 988–89 (9th Cir.
2007). Aviles is not a qualified individual, and thus has no protection under either
Act. Cripe v. City of San Jose, 261 F.3d 877, 887 (9th Cir. 2001) (“If a disabled
person cannot perform a job’s ‘essential functions’ . . . then the ADA’s
employment protections do not apply.”); Allen v. Pacific Bell, 348 F.3d 1113, 1114
n.1 (9th Cir. 2003) (“California relies on ADA precedents to interpret analogous
provisions of the [FEHA].”). By her own admission, Aviles was never able to
fulfill the physical requirements of her position and should never have been hired
in the first place.
Aviles’ intentional infliction of emotional distress claim fails because the
California Workers’ Compensation Act preempts such claims in the employment
context. Livitsanos v. Superior Court, 2 Cal. 4th 744, 747 (1992).
AFFIRMED.
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