NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ATEF A. ELZEFTAWY, 

Plaintiff-Appellant, 

 v. 

MICHAEL BAKER INTERNATIONAL, 

INC., a Pennsylvania Corporation, 

Defendant-Appellee.

No. 20-55700 

D.C. No. 

8:19-cv-01001-PA-KS 

Central District of California, 

Santa Ana 

MEMORANDUM*

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.

FILED

JUL 29 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

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 
3 

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).
4 

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.