NOT FOR PUBLICATION FILED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
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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).
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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.
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