David Elias v. Janet A. Napolitano

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID ELIAS,
Plaintiff - Appellant,
v.
JANET A. NAPOLITANO, in her official
capacity as Secretary of Department of
Homeland Security; DEPARTMENT OF
HOMELAND SECURITY,
Defendants - Appellees.
No. 11-57056
D.C. No. 8:09-cv-01490-JST-
MLG
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Josephine Staton Tucker, District Judge, Presiding
Submitted May 14, 2013**
Before: LEAVY, THOMAS, and MURGUIA, Circuit Judges.
David Elias appeals pro se from the district court’s summary judgment in his
disability discrimination action alleging claims under, among other statutes, the
FILED
MAY 21 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Americans with Disabilities Act (“ADA”) and the Rehabilitation Act of 1973. We
have jurisdiction under 28 U.S.C. § 1291. We review de novo, Walton v. U.S.
Marshals Serv., 492 F.3d 998, 1005 (9th Cir. 2007), and we affirm.
The district court properly granted summary judgment on Elias’s claim
under the Rehabilitation Act because Elias failed to raise a genuine dispute of
material fact as to whether his diabetes constituted a disability or resulted in him
being regarded as disabled, and whether he suffered employment discrimination on
the basis of a disability. See Johnson v. Bd. of Trs. of Boundary Cnty. Sch. Dist.
No. 101, 666 F.3d 561, 564 & n.1 (9th Cir. 2011) (expansion of how “disability” is
defined under the ADA Amendments Act of 2008 is effective January 1, 2009, and
does not apply retroactively); Walton, 492 F.3d at 1005-06 (discussing elements
of prima facie case of disability discrimination under the Rehabilitation Act, as
incorporated from standards of liability under the ADA, as well as the
requirements for a “regarded as” claim); see also Fraser v. Goodale, 342 F.3d
1032, 1038, 1041-43 (9th Cir. 2003) (explaining that whether a person is disabled
under comparable ADA provision is an individualized inquiry, and finding a
triable dispute as to whether plaintiff’s diabetes was a disability because her
treatment regimen substantially limited her in performing a major life activity).
Elias’s contentions regarding the alleged admission of “junk science” and

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his entitlement to reasonable accommodations are unpersuasive.
AFFIRMED.

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