NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MADELINE VAN WAGENEN,

Plaintiff

- Appellant,

v. KIRSTJEN NIELSEN, Secretary, Department of Homeland Security,

Defendant

- Appellee. No. 17

- 56700
D.C. No. 8:15

- cv - 00344

- CJC

- DFM

MEMORANDUM *

Appeal from the United States District Court for the Central District of California Cormac J. Carney, District Judge, Presiding Submitted January 15, 2019 **
Before: TROTT, TALLMAN, and CALLAHAN, Circuit Judges. Madeline Van Wagenen appeals pro se from the district cour t’ s summary judgment in her employment action alleging violations of the Rehabilitation Act (“RA”) and Title VII

. We have jurisdiction under 28 U. S.C. § 1291. We review de novo, Hawn v. Exec. Jet Mgmt., Inc. , 615 F .3d 1151, 1155 (9th Cir. 2010), and

* 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). 

# FILED

JAN 23 2019 MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL S2 17

- 56700

w e affirm. The district court properly grant ed summary judgment on Van Wagenen’s disability discrimination and failure

- to

- accommodate claim s under the RA because Van Wagenen failed to raise a genuine dispute of material fact as to whether
she could perform the essential functions of her job as an asylum officer. See
Lovell v. Chandler , 303 F.3d 1039, 1052 (9th Cir. 2002) (to succeed on a RA d isability discrimination claim, plaintiff must be a “qualified individual”); Weyer v. Twentieth Century Fox Film Corp. , 198 F.3d 1104, 1112 (9th Cir. 2000) (a “qualified individual” is an employee who “must be able to perform the essential functions of employment at the time that one is discriminated against in order to bring suit” ); Buckingham v. United States , 998 F.2d 735, 739

- 41 (9th Cir. 1993) ( under the RA, an employer has an affirmative obli gation to provide reasonable accommodations to qualified individuals with disabilities); see also Coons v. Sec’y of U.S. Dep’t of Treasury , 383 F.3d 879, 884 (9th Cir. 2004) ( standards for evaluating discrimination claim under RA ). The district court pr operly granted summary judgment on Van Wagenen’ s Title VII retaliation claim because Van Wagenen failed to raise a genuine dispute
of material fact as to whether defendant’s proffered legitim ate, non

- retaliatory
reasons for terminating Van Wagenen’s employ ment were pretextual. See Surrell
v. Cal. Water Serv. Co ., 518 F.3d 1097, 1108 (9th Cir. 2008) (elements of a3 17

- 56700

retaliation claim under Title VII); Stegall v. Citadel Broad. Co. , 350 F.3d 1061, 1066, 1069

- 70 (9th Cir. 2004) (circumstantial evidence of prete xt must be specific and substantial). The district court properly granted summary judgment on Van Wagenen’ s claim under the Family and Medical Le ave Act (“FMLA”) because Van Wagenen
does not have a private right of action as a federal employee with more than twelve
months of service

. See Russell v. U.S. Dep’ t of the Army , 191 F.3d 1016, 1018

- 19 (9th Cir. 1999) (no private right of action under the FMLA for federal employees with more than twelve months of service).
We do not consider matters not specifically and distinctly raised in the opening brief, or arguments and allegations raised for the first time on appeal

. S ee Padgett v. Wright , 587 F.3d 983, 985 n.2 (9th Cir. 2009)

. We do not consider
documents not presented to the district court. S ee United States v. Elias , 921 F.2d 870, 874 (9th Cir. 1990) (“Documents or facts not presented to the district court are not part of the record on appeal.”). Van Wagenen’s motion to supplement the record (Docket Entry No. 9) is
d enied.
AFFIRMED.