ELZEFTAWY v. MICHAEL BAKER INTERNATIONAL INC (2021)

MEMORANDUM ***

Atef A. Elzeftawy alleges that Michael Baker International, Inc. (“MBI”) 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., 24 Cal.4th 317, 100 Cal.Rptr.2d 352, 8 P.3d 1089, 1113 (2000) (FEHA discrimination claims); Sada v. Robert F. Kennedy Med. Ctr., 56 Cal.App.4th 138, 65 Cal. Rptr. 2d 112, 123 (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 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., 173 Cal.App.4th 986, 93 Cal. Rptr. 3d 338, 360, 360–61 (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 violation of California Labor Code §§ 6310 and 6400, it fails for similar reasons. See Loggins v. Kaiser Permanente Int'l, 151 Cal.App.4th 1102, 60 Cal. Rptr. 3d 45, 50–51 (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., 148 Cal.App.3d 374, 196 Cal. Rptr. 117, 128 (1983).

AFFIRMED.  ²

FOOTNOTES

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).

2.   Elzeftawy's motion to supplement the record (ECF No. 11) is denied as moot.