Gary Martirosyan v. UPS

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 12, 2025
• Docket: 23-55814
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 12 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

GARY KAREN MARTIROSYAN, No. 23-55814

Plaintiff-Appellant, D.C. No. 2:23-cv-01094-SB-DFM v.

UNITED PARCEL SERVICE, INC., a MEMORANDUM* corporation,

Defendant-Appellee.

Appeal from the United States District Court for the Central District of California Stanley Blumenfeld, Jr., District Judge, Presiding

Submitted November 21, 2024** Pasadena, California

Before: RAWLINSON, CHRISTEN, and JOHNSTONE, Circuit Judges.

Gary Karen Martirosyan appeals the district court’s order granting summary

judgment to UPS on his claims that UPS: (1) failed to provide a reasonable

accommodation for his disability and participate in an interactive process pursuant

* 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). to the Fair Employment and Housing Act (FEHA), Cal. Gov’t Code § 12940(m),

(n); and (2) his state-law claims for intentional infliction of emotional distress

(IIED) and negligent infliction of emotional distress (NIED). We assume the

parties’ familiarity with the facts and recite them only as necessary. We have

jurisdiction pursuant to 28 U.S.C. § 1291 and review de novo the district court’s

order granting summary judgment. Lowry v. City of San Diego, 858 F.3d 1248,

1254 (9th Cir. 2017) (en banc).

1. Pursuant to the FEHA, it is unlawful for an employer “to fail to make

reasonable accommodation for the known physical . . . disability of

an . . . employee.” Cal. Gov’t Code § 12940(m)(1). Where the requested

accommodation is reassignment “an employer must make affirmative efforts to

determine whether a position is available,” Raine v. City of Burbank, 37 Cal. Rptr.

3d 899, 904 (Ct. App. 2d 2006), but an employer is not required to create a new

position or transform a temporary position into a permanent one. Id. Where no

available union position meets a union-member employee’s disability restrictions,

a non-union position can be a reasonable accommodation. See Hanson v. Lucky

Stores, Inc., 87 Cal. Rptr. 2d 487, 490, 495 (Ct. App. 2d 1999).

Here, UPS provided evidence that it actively searched for a position meeting

Martirosyan’s work restrictions from July 2021 through at least April 2023. UPS

did not find any positions that fit Martirosyan’s work restrictions and preferred

2 locations until December 2022. At that time, they offered him a part-time, non-

union supervisor position.

Martirosyan declined this offer, and he now argues that the non-union

position was not a reasonable accommodation because it would have entailed the

loss of significant employment benefits. But UPS provided evidence that there

were no union positions that Martirosyan could perform with his work restrictions,

and Martirosyan does not provide substantial evidence to the contrary. See

Hanson, 87 Cal. Rptr. 2d at 490, 495.

Even if there were a dispute of fact about whether the non-union position

was a reasonable accommodation, there is no evidence there were other available

positions that met Martirosyan’s restrictions. Martirosyan’s arguments to the

contrary are unavailing. See Dep’t of Fair Emp. & Hous. v. Lucent Techs., Inc.,

642 F.3d 728, 743–44 (9th Cir. 2011). First, the FEHA did not require that UPS

convert the temporary, light-duty position they initially provided for Martirosyan

into a permanent position when it became apparent that his disability was

permanent. Raine, 37 Cal. Rptr. 3d at 904. Second, though Martirosyan argues

that UPS failed to offer him a tower control position his union representative

informed him about, UPS determined the position was not in fact available.

Finally, the list of positions in Martirosyan’s declaration does not create a material

dispute of fact about whether another position was available, because the list did

3 not specify where those positions were located, whether they were vacant, what the

job requirements were, or whether they were union positions. On this record, we

affirm the district court’s order granting summary judgment to UPS on

Martirosyan’s FEHA reasonable accommodation claim.

2. The FEHA also requires employers to “engage in a timely, good faith,

interactive process with the employee . . . to determine effective reasonable

accommodations, if any.” Cal. Gov’t Code § 12940(n). To prevail on a claim that

an employer failed to engage in the interactive process, an employee must identify

an available accommodation the interactive process should have produced.

Shirvanyan v. L.A. Cmty. Coll. Dist., 273 Cal. Rptr. 3d 312, 324 (Ct. App. 2d

2020). Martirosyan identified no such accommodation. UPS offered him a part-

time, non-union supervisor position that he declined, and Martirosyan provides no

evidence of other available positions that met his geographic preferences and work

restrictions. We affirm the district court’s order granting summary judgment to

UPS on Martirosyan’s interactive process claim.

3. To prevail on a claim for IIED, a plaintiff must show “extreme and

outrageous” conduct. Crouch v. Trinity Christian Ctr. of Santa Ana, Inc., 253 Cal.

Rptr. 3d 1, 13 (Ct. App. 5th 2019). Martirosyan failed to raise a dispute of fact that

the defendants’ conduct was extreme and outrageous. We affirm the district

court’s grant of summary judgment to UPS on this claim.

4 4. To prevail on a claim for NIED without an accompanying physical injury,

a plaintiff must show “serious” emotional distress. Wong v. Jing, 117 Cal. Rptr. 3d

747, 767 (Ct. App. 6th 2010). Martirosyan offered evidence that he experienced

some emotional distress, but the record does not raise a genuine issue that it rose to

the level recognized by California courts as sufficient to support a NIED claim,

especially considering there is no evidence of outrageous conduct. See id. at 768.

For these reasons, we affirm the district court’s order granting summary judgment

to UPS on Martirosyan’s NIED claim.

AFFIRMED.