MAHMOUD SAQQA V. COUNTY OF SAN JOAQUIN

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 20 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MAHMOUD SAQQA, No. 21-16617
Plaintiff-Appellant, D.C. No.
2:20-cv-00331-WBS-AC
v.
COUNTY OF SAN JOAQUIN; KRIS MEMORANDUM*
BALAJI,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
William B. Shubb, District Judge, Presiding
Argued and Submitted December 5, 2022
San Francisco, California
Before: LUCERO,** BRESS, and VANDYKE, Circuit Judges.
Plaintiff-Appellant Mahmoud Saqqa appeals the district court’s decision
granting summary judgment in favor of Defendants-Appellees San Joaquin County
and Kris Balaji. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent except as
provided by Ninth Circuit Rule 36-3.
**
The Honorable Carlos F. Lucero, United States Circuit Judge for the U.S. Court
of Appeals for the Tenth Circuit, sitting by designation.
Saqqa is a Jordanian-born, Caucasian engineer who worked in the County’s
Department of Public Works. Throughout Saqqa’s tenure, the County’s Director of
Public Works, Kris Balaji, repeatedly criticized Saqqa and made harsh remarks.
When Saqqa and another engineer sought the same promotion, neither was awarded
the position. After resigning in 2019, Saqqa brought against the County and Balaji
a 42 U.S.C. § 1981 race discrimination claim based on the defendants’ failure to
promote him, and an age-based harassment claim under California’s Fair
Employment and Housing Act (FEHA). The district court granted summary
judgment in favor of the defendants on all claims.
We review de novo. Ariz. Dream Act Coal. v. Brewer, 855 F.3d 957, 965 (9th
Cir. 2017). Summary judgment is appropriate if there is no genuine dispute as to
any material fact. Fed. R. Civ. P. 56. When determining whether a genuine dispute
exists, the court views the facts in the light most favorable to the non-moving party.
Santillan v. USA Waste of Cal., Inc., 853 F.3d 1035, 1042 (9th Cir. 2017).
The district court did not err in granting summary judgment on the § 1981
race discrimination claim because Saqqa failed to establish a prima facie case under
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Generally, in
failure-to-promote cases, a plaintiff must establish a prima facie case of race
discrimination by satisfying the following elements: (1) the plaintiff belongs to a
protected class; (2) he applied for and was qualified for the promotion; (3) despite
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his qualifications, he was rejected; and (4) the position was filled by someone
outside the plaintiff’s class, or alternatively, after rejecting the plaintiff, the employer
continued to seek other applicants with comparable qualifications. Dominguez-
Curry v. Nev. Transp. Dep’t, 424 F.3d 1027, 1037 (9th Cir. 2005) (citing McDonnell
Douglas, 411 U.S. at 802); Lyons v. England, 307 F.3d 1092, 1112 (9th Cir. 2002).
It is undisputed that Saqqa satisfied the first three elements, and that he cannot meet
the fourth element as traditionally applied because the County did not continue its
search or consider other candidates, and the position was subsequently eliminated
without anyone ever filling the role.
Instead, Saqqa argues this court should either not apply the McDonnell
Douglas framework or interpret the fourth element of the test in a more expansive
way. See Reynaga v. Roseburg Forest Prods., 847 F.3d 678 (9th Cir. 2017). He
relies on the version of the fourth element laid out in Peterson v. Hewlett-Packard
Co., which allows the plaintiff to show that “similarly situated individuals … were
treated more favorably, or other circumstances surrounding the adverse employment
action give rise to an inference of discrimination.” 358 F.3d 599, 603 (9th Cir.
2004). Assuming without deciding that Saqqa’s proposed test is appropriate, he still
cannot prevail. Saqqa has presented no evidence that an employee of another race
was treated more favorably with respect to the promotion he sought. Nothing in the
record gives rise to an inference of racial discrimination.
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Nor did the district court err in granting summary judgment on Saqqa’s FEHA
age-based harassment claim, because the harassment was not “sufficiently severe or
pervasive.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). To establish a
prima facie case of a hostile work environment under FEHA, a plaintiff must show:
(1) he belongs to a protected class; (2) he was subjected to unwelcome harassment;
(3) the harassment was based on his protected status; (4) the harassment
unreasonably interfered with plaintiff’s work performance by creating a hostile,
intimidating, or offensive environment; and (5) the defendants are liable for the
harassment. Ortiz v. Dameron Hosp. Ass’n, 250 Cal. Rptr. 3d 1, 12 (Cal. Ct. App.
2019). Language that is merely annoying or offensive is not actionable, Harris, 510
U.S. at 23, because “[n]ot every insult or harassing comment will constitute a hostile
work environment.” Ray v. Henderson, 217 F.3d 1234, 1245 (9th Cir. 2000).
California courts weigh the following factors to determine whether
harassment is sufficiently severe or pervasive: “the frequency of the discriminatory
conduct; its severity; whether it is physically threatening or humiliating, or a mere
offensive utterance; and whether it unreasonably interferes with an employee’s work
performance.” Cornell v. Berkeley Tennis Club, 227 Cal. Rptr. 3d 286, 311 (Cal.
Ct. App. 2017) (quotation omitted). Here, Saqqa describes a total of four age-related
remarks from Balaji. Only one was directed at Saqqa specifically. While offensive
comments may be “hurtful,” “[f]our comments over several months does not
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establish a pattern of routine harassment creating a hostile work environment,
particularly given that the comments were not extreme.” Id. Here, Saqqa presents
four comments over the course of multiple years. And because three of the four
comments were not directed at Saqqa, the “severity” of the harassment is lower.
Without more, Saqqa has not presented evidence of “sufficiently severe or
pervasive” conduct.
Finally, while Saqqa also argues that the district court did not consider the
“totality of the circumstances,” it would be improper for this court to attribute “the
entire record of Balaji’s demeaning tirades” to age-related bias, since Saqqa fails to
present a “nexus” between his protected status and Balaji’s outbursts about his job
performance. See Ortiz, 250 Cal. Rptr. 3d at 11–12 (explaining there must be a
“nexus” between an employee’s protected status and the supervisor’s conduct under
the third element of the FEHA prima facie case).
AFFIRMED.
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