Atef Elzeftawy v. Michael Baker Int'l, Inc.

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 29, 2021
• Docket: 20-55700
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 29 2021 FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

ATEF A. ELZEFTAWY, No. 20-55700

Plaintiff-Appellant, D.C. No. 8:19-cv-01001-PA-KS v. Central District of California, Santa Ana MICHAEL BAKER INTERNATIONAL, INC., a Pennsylvania Corporation, MEMORANDUM*

Defendant-Appellee.

On Appeal from the United States District Court for the Central District of California Percy Anderson, District Judge, Presiding

Submitted July 26, 2021** San Francisco, California

Before: MCKEOWN and NGUYEN, Circuit Judges, and LAMBERTH,*** District Judge.

Atef A. Elzeftawy alleges that Michael Baker International, Inc. (“MBI”)

* 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). *** The Honorable Royce C. Lamberth, United States District Judge for the District of Columbia, sitting by designation. violated California’s Fair Employment and Housing Act (“FEHA”) and California

Labor Code §§ 6310 and 6400 when MBI failed to hire him, failed to engage in an

interactive process to determine a reasonable accommodation, failed to make a

reasonable accommodation, and retaliated against him. The district court granted

summary judgment for MBI. We have jurisdiction under 29 U.S.C. § 1291, and

we affirm.

1. The district court correctly granted summary judgment in MBI’s favor

on Elzeftawy’s FEHA discrimination and retaliation claims after applying the

three-part McDonnell Douglas burden-shifting test. Guz v. Bechtel Nat. Inc., 8

P.3d 1089, 1113 (Cal. 2000) (FEHA discrimination claims); Sada v. Robert F.

Kennedy Med. Ctr., 65 Cal. Rptr. 2d 112, 123 (Cal. Ct. App. 1997), as modified on

denial of reh’g (July 18, 1997) (FEHA retaliation claims). MBI offered a

legitimate, nondiscriminatory reason for not hiring Elzeftawy: the position for

which he applied was contingent on MBI winning a project, and MBI cancelled the

search for the position, hiring no one, when it failed to win the project. Elzeftawy

failed to establish a genuine factual dispute that this reason was pretextual, and, for

the same reason, failed to make out a prima facie case for FEHA disability

discrimination, which requires him to show that MBI failed to hire him because of

his disability. Cal. Gov’t Code § 12940(a). In addition, Elzeftawy cannot make

out a prima facie FEHA retaliation claim because he does not allege that he ever

2 complained about discrimination. See id. § 12940(h). Having met its burden, MBI

was entitled to summary judgment on these claims.

2. The district court also correctly granted summary judgment in MBI’s

favor on Elzeftawy’s claims for failure to engage in the interactive process and

failure to accommodate.1 Elzeftawy failed to show (1) that he asked for a

reasonable accommodation, or any accommodation at all, related to his application

to work at MBI; (2) that MBI failed to engage in an interactive process after

receiving such a request; or (3) what reasonable accommodation was available at

the time of his application. See Scotch v. Art Inst. of Cal., 93 Cal. Rptr. 3d 338,

360, 360–61 (Cal. Ct. App. 2009) (noting that employee must initiate process

“unless the disability and resulting limitations are obvious,” and holding that to

prevail on a failure to engage claim, plaintiff must identify a reasonable

accommodation available at the relevant time).

3. The district court also correctly granted summary judgment in MBI’s

favor on Elzeftawy’s wrongful adverse employment action claim. To the extent

that this claim is based on the alleged FEHA violations, it fails for the same reason

his FEHA claims fail. To the extent the claim is based on alleged retaliation in

1 This argument was not waived. The district court analyzed Elzeftawy’s interactive process and reasonable accommodation theories and ruled on them, showing the issue was “raised sufficiently for the trial court to rule on it.” Arizona v. Components Inc., 66 F.3d 213, 217 (9th Cir. 1995).

3 violation of California Labor Code §§ 6310 and 6400, it fails for similar reasons.

See Loggins v. Kaiser Permanente Int’l, 60 Cal. Rptr. 3d 45, 50–51 (Cal. Ct. App.

2007) (applying McDonnell Douglas to § 6310 and related claims). MBI offered a

legitimate, non-retaliatory reason for failing to hire Elzeftawy, and Elzeftawy did

not show that MBI decision-makers knew of his safety complaints or took action

because of his complaints.

4. Finally, the district court correctly denied punitive damages because

MBI was entitled to summary judgment. Hilliard v. A.H. Robins Co., 196 Cal.

Rptr. 117, 128 (Cal. Ct. App. 1983).

AFFIRMED. 2

2 Elzeftawy’s motion to supplement the record (ECF No. 11) is denied as moot.