Zeinali v. Raytheon Co.

FILED
NOT FOR PUBLICATION APR 04 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HOSSEIN ZEINALI, No. 09-56283
Plaintiff - Appellant, D.C. No. 3:07-cv-01852-MMA
v.
MEMORANDUM*
RAYTHEON COMPANY,
Defendant - Appellee.
Appeal from the United States District Court
for the Southern District of California
Michael M. Anello, District Judge, Presiding
Argued and Submitted November 4, 2010
Pasadena, California
Before: RAWLINSON and M. SMITH, Circuit Judges, and JONES, District
Judge.**
As the facts and procedural history are familiar to the parties, we do not
recite them here except as necessary to explain our disposition. In a separate
opinion, we address two issues: (1) Raytheon’s contention that we lack jurisdiction
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Robert Clive Jones, United States District Judge for
the District of Nevada, sitting by designation.
over Zeinali’s employment discrimination claims and (2) the merits of Zeinali’s
discrimination claim with respect to his termination from employment with
Raytheon. We now address the parties’ remaining contentions.
I. Failure to Promote
The record does not support the district court’s conclusion that Zeinali was
not promoted because he lacked a security clearance. Rather, Raytheon contends
that Zeinali was not promoted because he was not among the top quartile of his
peer group. The record, examined in a light most favorable to Zeinali, shows that
Zeinali was offered a promotion. Zeinali has accordingly raised a triable issue of
fact to dispute Raytheon’s contentions that (1) he was not qualified for a promotion
and (2) Raytheon had a legitimate non-discriminatory reason for not promoting
him. See Guz v. Bechtel Nat’l Inc., 8 P.3d 1089, 1113–14 (Cal. 2000).
Because the district court did not address Raytheon’s contention that
Zeinali’s failure-to-promote claim is time-barred, we refrain from addressing that
issue here. See Golden Gate Hotel Ass’n v. City & Cnty. of S.F., 18 F.3d 1482,
1487 (9th Cir. 1994) (“As a general rule, a federal appellate court does not consider
an issue not passed upon below.” (internal quotation marks omitted)).
II. Discovery Order
-2-
Contrary to the magistrate judge’s conclusions (which were adopted in
relevant part by the district court), Zeinali has shown that his co-workers were
similarly situated in all material respects for purposes of his failure-to-promote
claim. Raytheon’s promotion policies required employees to be in the top quartile
of their pay grade cohort, and Zeinali claims that his quartile ranking was
inaccurate. Although Zeinali did not share the same job titles and duties as the
other E04-grade employees, they were his competition for promotions. Thus, they
are similarly situated for purposes of the failure-to-promote claim.
In addition, there is no evidence in the record to support the magistrate
judge’s conclusion that Zeinali conceded that his failure-to-promote claim is time-
barred.
Accordingly, we reverse and remand the orders of the district court and
magistrate judge denying Zeinali’s request to obtain the job performance records of
his co-workers. See Fed. R. Civ. P. 72(a). We leave to the district court’s
discretion whether to require redaction of identifying information.
III. California Labor Code § 1102.5
The parties agree that the district court analyzed Zeinali’s California Labor
Code § 1102.5 claim under subsection (b) rather than subsection (c) as is alleged in
-3-
the Complaint. We vacate and remand this cause of action so that the district court
may analyze it under the relevant subsection.
IV. Tortious Termination in Violation of Public Policy
As pleaded in his Complaint, Zeinali’s cause of action for wrongful
termination in violation of public policy is premised on the same facts as his
unlawful discrimination and Labor Code § 1102.5 claims. See Tameny v. Atl.
Richfield Co., 610 P.2d 1330, 1336–37 (Cal. 1980) (recognizing cause of action for
employee terminated after refusing to participate in illegal activity); Phillips v. St.
Mary Reg’l Med. Ctr., 116 Cal. Rptr. 2d 770, 779 (Ct. App. 2002) (recognizing
cause of action for employee terminated on account of race). Because we reverse
and remand the district court’s order with respect to the unlawful discrimination
and Labor Code § 1102.5 causes of action, we do the same with respect to the
tortious termination in violation of public policy cause of action.
V. Leave to Amend the Complaint
The district court did not abuse its discretion by concluding that Zeinali’s
proposed amendment “would prejudice Defendant substantially,” would “prevent
the efficient resolution of [the] case,” and contained causes of action that could
have been alleged at the time of Zeinali’s initial Complaint. These reasons are
valid grounds for denying leave to amend. See, e.g., AmerisourceBergen Corp. v.
-4-
Dialysist West, Inc., 465 F.3d 946, 953 (9th Cir. 2006) (holding that eight month
delay before seeking amendment is unreasonable, particularly where plaintiff could
have pleaded the new “theory in its original complaint”); Lockheed Martin Corp. v.
Network Solutions, Inc., 194 F.3d 980, 986 (9th Cir. 1999) (holding that motion to
amend was properly denied where it was filed at end of discovery).
VI. Summary
We REVERSE AND REMAND with respect to the discovery order and the
failure-to-promote, California Labor Code § 1102.5, and tortious termination in
violation of public policy causes of action. We AFFIRM with respect to the
denial of leave to amend the complaint. Costs are awarded to Zeinali.
-5-