Madeline Van Wagenen v. KIRSTJEN NIELSEN, Secretary, Department of Homeland Security

NOT FOR PUBLICATION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 court’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, CLERK
U.S. COURT OF APPEALS

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we affirm.
The district court properly granted summary judgment on Van Wagenen’s
disability discrimination and failure-to-accommodate claims under the RA because
Van Wagenen failed to raise a genuine dispute of material fact as to whether
shecould 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
disability 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 obligation 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 properly 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 legitimate, non-retaliatory
reasons for terminating Van Wagenen’s employment were pretextual. See Surrell
v. Cal. Water Serv. Co., 518 F.3d 1097, 1108 (9th Cir. 2008) (elements of a

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retaliation claim under Title VII); Stegall v. Citadel Broad. Co., 350 F.3d 1061,
1066, 1069-70 (9th Cir. 2004) (circumstantial evidence of pretext must be specific
and substantial).
The district court properly granted summary judgment on Van Wagenen’s
claim under the Family and Medical Leave 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. See
Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009). We do not consider
documents not presented to the district court. See 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
denied.
AFFIRMED.

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