Jeffrey THOMAS, Plaintiff-Appellant, v. HIOSSEN, INC., Defendant-Appellee.
Decided: April 15, 2020
Before: GOULD and CHRISTEN, Circuit Judges, and LASNIK,** District Judge.
Todd M. Friedman, Kelsey Lynn Kuberka, CON, Law Offices of Todd M. Friedman, Woodland Hills, CA, for Plaintiff - Appellant Kurt Alan Kappes, Attorney, Greenberg Traurig, LLP, Sacramento, CA, Robert Harris Bernstein, Esquire, Attorney, Greenberg Traurig LLP, Florham Park, NJ, for Defendant - Appellee
We write primarily for the parties who are familiar with the facts. Jeffrey Thomas sued his former employer, Hiossen, Inc. (“Hiossen”), alleging violations of California’s Fair Employment and Housing Act (“FEHA”).1 The district court granted summary judgment in favor of Hiossen. Reviewing de novo, see Brown v. Lucky Stores, Inc., 246 F.3d 1182, 1187 (9th Cir. 2001), we affirm.
1. The district court did not err in rejecting Thomas’s FEHA interactive process claim. Undisputed evidence in the record indicates that Hiossen engaged Thomas in the interactive process despite his ongoing lack of communication with Hiossen. See, e.g., Nadaf-Rahrov v. Neiman Marcus Grp., Inc., 166 Cal. App. 4th 952, 984-85, 83 Cal.Rptr.3d 190 (2008) (“For the process to work both sides must communicate directly, exchange essential information and neither side can delay or obstruct the process.” (internal quotation marks, alterations, and citation omitted)).
2. The district court did not err by finding there was no evidence that Hiossen failed to provide Thomas with reasonable accommodations. See Cal. Gov’t Code §§ 12940(a), (m), 12926(p). Thomas’s conclusory assertion that Hiossen should have accommodated him with reassignment to an alternative position is belied by unrefuted evidence indicating that he never asked for a different type of job, and that no suitable alternative position was available. See, e.g., Nealy v. City of Santa Monica, 234 Cal. App. 4th 359, 377, 184 Cal.Rptr.3d 9 (2015). Moreover, we are not persuaded by Thomas’s argument that Hiossen was required to accommodate him through promotion. Id.
3. Finally, the district court properly concluded that Thomas failed to establish a prima facie case of FEHA disability discrimination because he was not a “qualified individual.”2 See Cal. Gov’t Code §§ 12940(a), 12926(f); 2 Cal. Code Regs. §§ 11065(o), 11066. The record supports the conclusion that an essential function of Hiossen’s Sales Representative position is driving, and Thomas’s admissions indicate that his injuries prevented him from doing so. See, e.g., Lawler v. Montblanc N. Am., LLC, 704 F.3d 1235, 1241-43 (9th Cir. 2013). Summary judgment for Hiossen was appropriate.
1. Thomas also brought claims under the California Family Rights Act (“CFRA”), which are not at issue on appeal.
2. Because Thomas has not established a prima facie case of disability discrimination, we do not reach his pretext argument.
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