Lolita ABILLE, Plaintiff-Appellant, v. Hansford T. JOHNSON; Gordon England, Defendants-Appellees.

No. 06-35177.United States Court of Appeals, Ninth Circuit.Submitted May 11, 2007[*] .
Filed May 25, 2007.

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]
[*] The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).

Randy W. Loun, Esq., Loun Tyner, Bremerton, WA, for Plaintiff-Appellant.

Marion J. Mittet, Esq., USSE-Office of the U.S. Attorney, Seattle, WA, for Defendants-Appellees.

Appeal from the United States District Court for the Western District of Washington, Ricardo S. Martinez, District Judge, Presiding. D.C. No. CV-03-05393-RSM.

Before: HUG, McKEOWN, and W. FLETCHER, Circuit Judges.

Lolita Abille, a former civilian Navy employee, filed suit claiming discrimination and failure to accommodate in violation of the Rehabilitation Act and the Americans with Disabilities Act (“ADA”); retaliation, disparate treatment race and sex discrimination, and a hostile work environment in violation of Title VII; and intentional infliction of emotional distress or “outrage”

Page 730

under Washington state law. Because the parties are familiar with the underlying facts, we do not recite them here.

Abille cannot bring a claim under the ADA because employees of the Navy are federal employees specifically excluded from the ADA and covered instead by the Rehabilitation Act. See 42 U.S.C. § 12111(5)(B)(i). The district court correctly dismissed Abille’s state tort claim because Abille failed to state a claim for “outrage” in her complaint, and, in any event, she could not prevail as a matter of law because Abille did not identify any “outrageous and extreme” conduct on the part of her employer beyond “`rough language, unkindness, and lack of consideration.'” Birklid v. Boeing Co., 127 Wash.2d 853, 904 P.2d 278, 287 (1995) (quoting Grimsby v. Samson, 85 Wash.2d 52, 530 P.2d 291, 295 (1975)). As to Abille’s remaining claims, we affirm for the reasons provided by the district court in its Order of June 15, 2005.


[**] This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.