NOT FOR PUBLICATION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 Ce ntral 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 APPEALS2

violat ed California’s Fair Employment and Housing Act (“ FEHA ”) and California Labor Code §§ 6310 and 6400 when MBI fail ed to hire him , fail ed to engage in an interactive process to determine a reasonable accommodation, fail ed 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 a ffirm.
1. The district court correctly granted s ummary judgment in MBI’s favor on Elzeftawy’s FEHA discrimination and retaliation claim s 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 , 1 23 ( 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

. Elzef tawy 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 di sability

. 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 ever3

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 El zeftawy 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, 36 0

– 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 employm ent action claim. To the extent
that t his 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

. T he 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.” Ariz ona 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) ( apply ing McDonnell Douglas to § 6310 and related claims ). MBI offered a legitimate, non

- retaliatory reason for failing to hire Elzeft awy, 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.