Syed Ali v. Synaptics, Inc.

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 9, 2020
• Docket: 19-15589
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 9 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

SYED NAZIM ALI, No. 19-15589

Plaintiff-Appellant, D.C. No. 5:18-cv-06682-NC

v. MEMORANDUM* SYNAPTICS, INC.,

Defendant-Appellee.

Appeal from the United States District Court for the Northern District of California Nathanael M. Cousins, Magistrate Judge, Presiding**

Submitted March 3, 2020***

Before: MURGUIA, CHRISTEN, and BADE, Circuit Judges.

Syed Nazim Ali appeals pro se from the district court’s judgment dismissing

his employment action alleging federal and state law claims. We have jurisdiction

under 28 U.S.C. § 1291. We review de novo a dismissal under Federal Rule of

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The parties consented to proceed before a magistrate judge. See 28 U.S.C. § 636(c). *** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Civil Procedure 12(b)(6). Hebbe v. Pliler, 627 F.3d 338, 341 (9th Cir. 2010). We

affirm.

Because Ali failed to oppose defendant’s argument in its motion to dismiss

that Ali admitted he was an independent contractor, Ali has waived his challenge

to the district court’s determination that his discrimination, retaliation, and

wrongful termination claims fail on that basis. See Alaska Airlines, Inc. v. United

Airlines, Inc., 948 F.2d 536, 546 n.15 (9th Cir. 1991) (“It is well established that an

appellate court will not reverse a district court on the basis of a theory that was not

raised below.”); see also Fleming v. Yuma Reg’l Med. Ctr., 587 F.3d 938, 942 (9th

Cir. 2009) (“Title I [of the Americans with Disabilities Act (“ADA”)] covers all

aspects of the employer-employee relationship . . . it does not cover other

relationships, which are addressed elsewhere in the ADA.”); Adcock v. Chrysler

Corp., 166 F.3d 1290, 1292 (9th Cir. 1999) (“Title VII protects employees, but

does not protect independent contractors.”); Barnhart v. N.Y. Life Ins. Co., 141

F.3d 1310, 1312-13 (9th Cir. 1998) (a plaintiff under the Age Discrimination in

Employment Act “must establish himself as an employee” (citation and internal

quotation marks omitted)); Kelly v. Methodist Hosp. of S. Cal., 997 P.2d 1169,

1174 (Cal. 2000) (the California Fair Employment Housing Act predicates

potential liability on the existence of an employment relationship). In light of this

conclusion, the district court did not abuse its discretion by denying Ali leave to

2 19-15589 amend his complaint. See Serra v. Lappin, 600 F.3d 1191, 1200 (9th Cir. 2010)

(setting forth standard of review and factors for determining whether to grant leave

to amend).

We do not consider matters not specifically and distinctly raised and argued

in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

AFFIRMED.

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