NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LIDIA G. JABLONSKI,

Plaintiff

- Appellant,

v. WALMART INC.,

Defendant

- Appellee. No. 17

- 15494
D.C. No. 2:13

- cv - 01510

- JAD

- VCF

MEMORANDUM *

Appeal from the United States District Court for the District of Nevada Jennifer A. Dorsey, District Judge, Presiding Submitted April 13, 2018 ** San Francisco, California Before: KLEINFELD, W. FLETCHER, and TALLMAN, Circuit Judges.
Plaintiff

- Appellan t Lidia Jablonski appeals the district court’s grant of summary judgment in favor of Defendant

- Appellee WalMart Stores, Inc. on her
claims under the America ns with Disabilities Act (ADA), 42 U.S.C. § 12111 et
seq. , and Nevada state law. We have jurisdicti on pursuant to 28 U.S.C. § 1291.

* 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

APR 26 2018 MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL S2

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.
1. Even assuming that Jablonski made out a prima facie case of disability discrimination, her ADA discrimination claim fails. WalMart articulated

a non - discriminatory rationale for firing Jablonski : after she returned from about twenty weeks of leave and he r T emporary A lternate D uty (TAD) period ended , she refused to take the only vacant position in the store

. See Godwin v. Hunt Wesson,
Inc. , 150 F.3d 1217, 1220 (9th Cir. 1998) . Jablonski failed to carry her burden of showing that this rationale was a pret ext for discrimination. See id. Her supervisor’s assertion that Jablons ki was “no longer job protected ” was a factual statement regarding the provisions of WalMart’s written leave policy, not direct evidence that “ proves the fact [of discriminatory animus] without inference or presumption.” See id. at 1221. Therefore, Jablonski was required to present “specific and substantial” indirect evidence of pretext, see id. at 1222, which she
failed to do.
2. WalMart attempted to accommodate Jablonski and adequately
engage d in the interactive process. See 29 C.F.R. § 1630.2(o)(3); Zivkovic v. S. Cal. Edison C

o. , 302 F.3d 1080, 1089 (9th Cir. 2002)

. Jablonski filed leave requests and submitted medical records to WalMart

. WalMart officials corresponded with her about her leave , granted multiple leave requests, and spoke3

t o her about her future position. WalMart offered Jablonski several
accommodations: personal leave when she ran out of FMLA leave, a ninety

- day TAD position that accommodated her medical restrictions, and eventually a permanent cashier position

— which she rejected

. Jablonski argues that WalMart
should have transferred her to another store. But she did not ask to be transferred at the time, and she has not present ed any evidence that there were vacant positions for which she was qualified at other stores. Therefore, she has not met her burden of “showing the existence of a reasonable accommodation that would have enabled [her] to perform the essential functions of an available job.” See Dark v. Curry Cty. , 451 F.3d 1078, 1088 (9th Cir. 2006).
3. Nor has Jablonski made out a prim a facie case of ADA retaliation 1 because she has not linked her termination to any protected activity. See 42 U.S.C. § 12203(a); Pardi v. Kaiser Found. Hosps. , 389 F.3d 840, 849 (9th Cir. 2004). Notifying WalMart of her return to Maximum Medical Improvement was part of the process of Jablonski returning to work, not a pursuit of her rights under the
ADA. See Pardi , 389 F.3d at 850

. Th ere also is no evidence that Jablonski complained of discriminatory treatment on the basis of her disability or otherwise

1 Jablonski initially styled this as a “coercion” claim, but the district court (correctly, in our view) construed it as a retaliation claim. Jablonski did not object to that recharacterization on appeal, so we have also analyzed it as an ADA retaliation c laim.4

attempted to vindicate her ADA rights before she was fired

. Even if Jablonski had made out a prima facie case, her retaliation claim
would fail for the same reaso n her discrimination claim fail s: WalMart articulated

a non - retaliatory reason for firing her, and she failed to offer any evidence that its
ration ale was pretextual. See id. at 849. The fact that WalMart ended Jablonski’s TAD period when it did is hardly evidence of retaliation, given that TAD assignments are limited to a maximum of ninety days. And Jablonski’s supervisor’s comment about Jablonski not being “job protected” is not evidence of retaliatory intent any more tha n it is evidence of discriminatory intent.
4. Jablonski’s state

- law tortious

- discharge claim fails because she has not raised a genuine issue of material fact regard ing w h et h e r her filing of a worker’s compensation claim was “ the proximate cause” of her termination

. Se e Allum v. Valley Bank of Nev. , 970 P.2d 1062, 1066 (Nev. 1998). WalMart retained Jablonski for ten months after she filed a worker’s compensation claim, and it
would have continued her employment had she accepted the cashier position.
Fu rthermore, WalMart presented evidence that it fired her for a non - retaliatory

reason , and “recovery for retaliatory discharge under [Nevada] law may not be had upon a ‘mixed motives’ theory.” See id.
Costs are awarded to the Appellees

. AFFIRMED.