NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JEFFREY THOMAS,

Plaintiff

- Appellant,

v.

HIOSSEN, INC.,

Defendant

- Appellee. No. 19

- 15424

D.C. No. 2:17

- cv

- 02363

- JAM

- CKD

MEMORANDUM *

Appeal from the United States District Court for the Eastern District of California John A. Mendez, District Judge, Presiding

Submitted March 27, 2020 * * San Francisco, California

Before: GOULD and CHRISTEN, Circuit Judges, and LASNIK, ** * District Jud ge.

We write primarily for the parties who are familiar with the f acts. Jeffrey

Thomas sued his former employer, Hiossen, Inc. (“Hiossen”), alleging violations

* 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 Robert S. Lasnik, United States District Judge for the Western District of Washington, sitting by designation. 

# FILED

APR 15 2020

MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2 19

- 15424

of California’s Fair Employment and Housing Act (“FEHA”). 1 The district court

granted summa ry 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 i nteractive

process claim. Undisputed evidence in the record indicates that Hiossen engaged

Thomas in the i nteractive process despite his ongoing lack of communication with

Hiossen. See, e.g.
, Nadaf

- Rahrov v. Neiman Marcus Grp., Inc. , 166 Ca l. App. 4th

952, 984

- 85 (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 e vidence 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 (2015). Moreover,

we are not persuaded by Thomas’s argument that Hiossen was required to

1 Thomas also brought claims under the California Family Rights Act (“CFRA”), which are not at issue on appeal.3 19

- 15424

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 support s 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

.

AFFIRMED.

2 Because Thomas has not established a prima facie case of disability discrimination, we do not reach his pretext argument.