Syed Ali v. Synaptics, Inc.

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 9 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT SYED NAZIM ALI, No. 19-15589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. 3 19-15589