Michael Fragada v. United Airlines, Inc. ( 2019 )

FILED
NOT FOR PUBLICATION
JAN 10 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL FRAGADA, No. 17-55900
Plaintiff-Appellant, D.C. No.
2:16-cv-03914-MWF-JPR
v.
UNITED AIRLINES, INC., a Delaware MEMORANDUM*
corporation,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Michael W. Fitzgerald, District Judge, Presiding
Submitted January 8, 2019**
Pasadena, California
Before: GRABER and WATFORD, Circuit Judges, and ZOUHARY,*** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
***
The Honorable Jack Zouhary, United States District Judge for the
Northern District of Ohio, sitting by designation.
Plaintiff Michael Fragada appeals the summary judgment entered in favor of
Defendant United Airlines on his employment discrimination and tort claims,
which arose from Plaintiff’s termination after he failed a drug test. Reviewing de
novo, and viewing the evidence in the light most favorable to the nonmoving party,
Albino v. Baca, 747 F.3d 1162, 1168 (9th Cir. 2014) (en banc), we affirm.
1. The district court correctly granted summary judgment to Defendant on
Plaintiff’s claims for disability discrimination under the California Fair
Employment and Housing Act ("FEHA"), Cal. Gov’t Code §§ 12900–12996.
Assuming that Plaintiff qualified as a disabled individual under FEHA and that he
exhausted his claim that Defendant regarded him as having a disability, he failed to
create a genuine issue of material fact as to whether Defendant’s stated reason for
firing him—that he failed a drug test, thus violating company policy—was merely
a pretext for discrimination. See Guz v. Bechtel Nat’l, Inc., 8 P.3d 1089, 1113–14
(Cal. 2000) (recognizing that California courts have adopted the burden-shifting
framework from McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), for
discrimination claims).
Plaintiff disputes the accuracy of the test results, but he cannot establish
pretext merely by showing that Defendant made the wrong decision when it fired
him. See King v. United Parcel Serv., Inc., 60 Cal. Rptr. 3d 359, 368 (Ct. App.
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2007) ("It is the employer’s honest belief in the stated reasons for firing an
employee and not the objective truth or falsity of the underlying facts that is at
issue in a discrimination case."). The record reflects that Defendant had a
"legitimate, nondiscriminatory reason" for firing Plaintiff, and Plaintiff failed to
provide evidence of pretext or a discriminatory motive, so his claims fail. Guz, 8
P.3d at 1114.
2. The district court correctly granted summary judgment to Defendant on
Plaintiff’s FEHA claims for failure to engage in the interactive process and failure
to accommodate. Plaintiff never requested an accommodation from Defendant
during his employment, and he testified that he never needed an accommodation to
perform his job duties. One month after Defendant fired him, Plaintiff asked to
switch to a desk job, but he admitted that he could still work with heavy equipment
without any accommodation. Because Plaintiff never requested an accommodation
or demonstrated any need for an accommodation during his employment,
Defendant cannot be liable for failing to engage in the interactive process, Dep’t of
Fair Emp’t & Hous. v. Lucent Techs., Inc., 642 F.3d 728, 742–43 (9th Cir. 2011),
or failing to reasonably accommodate Plaintiff, see King, 60 Cal. Rptr. 3d at 374
("An employee cannot demand clairvoyance of his employer.").
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3. The district court correctly granted summary judgment to Defendant on
Plaintiff’s claim that his termination violated public policy. This claim is
derivative of the FEHA claims, so it fails because those underlying claims fail.
Hanson v. Lucky Stores, Inc., 87 Cal. Rptr. 2d 487, 496–97 (Ct. App. 1999).
4. The district court correctly granted summary judgment to Defendant on
Plaintiff’s claim for intentional infliction of emotional distress. Defendant,
following its established written policy, fired Plaintiff for failing a drug test that an
independent group of medical professionals administered. That ordinary
personnel-management action does not rise to the level of "outrageous conduct
beyond the bounds of human decency." Janken v. GM Hughes Elecs., 53 Cal.
Rptr. 2d 741, 756 (Ct. App. 1996). The record also lacks any evidence that
Defendant acted with the intent to cause Plaintiff emotional distress.
5. The district court correctly granted summary judgment to Defendant on
Plaintiff’s claim for negligent infliction of emotional distress. Defendant acted
intentionally, not negligently, when it terminated Plaintiff. See Semore v. Pool,
266 Cal. Rptr. 280, 291 (Ct. App. 1990) ("An employer’s supervisory conduct is
inherently ‘intentional,’" so the challenged conduct "does not support a cause of
action for negligent infliction of emotional distress." (internal quotation marks
omitted)).
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6. The district court correctly granted summary judgment to Defendant on
Plaintiff’s claim that his termination constituted an unlawful business practice
under California’s Unfair Competition Law, Cal. Bus. & Prof. Code § 17200.
Defendant did not violate FEHA by terminating Plaintiff. Accordingly, Plaintiff’s
termination did not constitute an unlawful business practice.
AFFIRMED.
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