NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROSALBA MAYORGA, 

Plaintiff-Appellant, 

 v. 

STATE OF WASHINGTON; et al., 

Defendants-Appellees.

No. 19-35256 

D.C. No. C17-00934-RSL 

MEMORANDUM*

Appeal from the United States District Court

for the Western District of Washington

Robert S. Lasnik, District Judge, Presiding

Argued and Submitted October 9, 2020 

Seattle, Washington

Before: HAWKINS, GILMAN,**and CALLAHAN, Circuit Judges.

This case involves a dispute between Rosalba Mayorga and the state of 

Washington over Mayorga’s disability termination by the Washington Department 

of Social and Health Services (DSHS). Mayorga suffered traumatic brain injuries 

as a result of a car accident in 2013. She alleges that she was thereafter denied 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Ronald Lee Gilman, United States Circuit Judge for 

the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.

FILED

OCT 29 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 19-35256

reasonable accommodations at work for her injuries and that discriminatory and 

retaliatory animus motivated her termination. Mayorga appeals the district court’s 

grant of summary judgment in favor of the state of Washington and DSHS 

(collectively, DSHS) under Title VII of the Civil Rights Act of 1964 and § 504 of 

the Rehabilitation Act. Because we agree with the district court’s analysis, we 

affirm.

1. Mayorga’s contentions that the district court erred in denying her Title 

VII claims are unpersuasive. Crucially, she lacked proof that she was qualified to 

perform her job after her traumatic brain injuries, which means that she is unable to 

meet one of the essential elements of the four-part test used to establish a prima 

facie case of discrimination under Title VII. See Lynn v. Regents of California, 

656 F.2d 1337, 1340 (9th Cir. 1981) (holding that an essential element of a 

plaintiff’s prima facie case is a showing that the plaintiff is qualified for the 

position in question); see also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 

800 (1973).

2. And even if we were to assume that Mayorga had successfully 

established a prima facie case, she failed to raise a genuine dispute of material fact 

concerning whether DSHS’s reason for the disability termination was a pretext 

designed to mask unlawful discrimination. She simply lacked any evidence 

showing pretext. See Mayes v. WinCoHoldings, Inc., 846 F.3d 1274, 1280 (9th 
3 19-35256

Cir. 2017) (holding that “[a]n employee can prove pretext either: (1) directly, by 

showing that unlawful discrimination more likely motivated the employer; or 

(2) indirectly, by showing that the employer’s proffered explanation is unworthy of 

credence because it is internally inconsistent or otherwise not believable”) (internal 

citations and quotation marks omitted). The statistical evidence she provided the 

district court lacked indicia of reliability, and she was unable to persuade the court 

otherwise when she had the opportunity to do so during oral argument. See 

Sengupta v. Morrison-Knudsen Co., 804 F.2d 1072, 1074 (9th Cir. 1986) 

(“Although statistics have a place in a disparate treatment case, their utility 

depends on all the surrounding facts and circumstances.”) (internal citations and 

quotation marks omitted). 

3. Mayorga’s other claims also lacked supporting evidence. Regarding her 

attempt to establish a triable issue regarding her Title VII retaliation claim, there is

nothing in the record suggesting that her disability termination was due to anything 

other than (1) her admitted inability to continue working in her then-current job 

position, even with reasonable accommodations; and (2) the failure of the two 

vacancy-search processes to find her another suitable job, which were unsuccessful 

in large part due to geographic restrictions placed upon them by Mayorga and her 

own working-conditions limitations. With specific reference to her application for

the Relative Search Position, there is no evidence in the record showing that Kelly 
4 19-35256

Lutes or the interview panel retaliated against Mayorga. The evidence instead

suggests that she failed to secure the position after a competitive interview process 

and that, whatever the case, the position was incompatible with Mayorga’s 

disabilities and requested accommodations. In sum, the district court did not err in 

finding that there was nothing in the record to suggest that Mayorga was retaliated 

against for her opposition to changes in Washington’s child-welfare policies or to 

any other protected activity under Title VII. 

4. Finally, the district court did not err in granting summary judgment in 

favor of DSHS on Mayorga’s claims under § 504 of the Rehabilitation Act for 

discrimination and retaliation. Her § 504 claims fail for the same reasons stated 

above regarding her Title VII claims. See Zukle v. Regents of Univ. of California, 

166 F.3d 1041, 1045 (9th Cir. 1999) (holding that the anti-discrimination provision 

of § 504 requires the plaintiff to show that she is “otherwise qualified” for the 

position at issue); see also Barker v. Riverside Cty. Office of Educ., 584 F.3d 821, 

825 (9th Cir. 2009) (holding that the anti-retaliation provision of § 504 requires 

proof of engagement in a protected activity).

AFFIRMED.1

1 We deny Mayorga’s motion to extend time to file a reply brief (Dkt. 41) as moot.