                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            MAY 01 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


CARLEN BOUDREAUX,                                No.   15-16802

              Plaintiff-Appellant,               D.C. No.
                                                 2:14-cv-00720-KJM-KJN
 v.

J.B. HUNT TRANSPORTATION, INC.,                  MEMORANDUM*

              Defendant-Appellee.


                   Appeal from the United States District Court
                      for the Eastern District of California
                   Kimberly J. Mueller, District Judge, Presiding

                            Submitted April 21, 2017**
                             San Francisco, California

Before: TROTT and IKUTA, Circuit Judges, and FABER,*** District Judge.

      Carlen Boudreaux appeals the district court’s entry of summary judgment in

favor of his former employer J.B. Hunt Transportation, Inc. (J.B. Hunt) on his

      *
             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 David A. Faber, United States District Judge for the
Southern District of West Virginia, sitting by designation.
claims for violation of the California Fair Employment and Housing Act (FEHA),

Cal. Gov. Code § 12940, for violation of the California Family Rights Act

(CFRA), id. § 12945.2, and two related claims. We have jurisdiction under 28

U.S.C. § 1291, and we affirm.

      The district court properly granted summary judgment in favor of J.B. Hunt

on each of Boudreaux’s FEHA claims because he failed to raise a genuine issue of

material fact that he suffered a physical disability for purposes of FEHA. See Cal.

Gov. Code §§ 12940(a), 12926(m). Boudreaux presented no evidence that his on-

the-job injuries limited a major life activity, including the major life activity of

working. See id. § 12926(m)(1); Arteaga v. Brink’s, Inc., 163 Cal. App. 4th 327,

348 (2008). Even if J.B. Hunt knew that Boudreaux had decided to see a doctor

on May 6, 2011, or suspected that Boudreaux intended to file a worker’s

compensation claim, Boudreaux identifies no authority holding that such

knowledge constitutes knowledge that Boudreaux suffered or could suffer a

physical disability. Nor did Boudreaux present evidence that J.B. Hunt otherwise

perceived him to have a physical disability or a potential physical disability. See

Cal. Gov. Code § 12926(m)(4), (m)(5). Because Boudreaux did not raise a

genuine issue of material fact with respect to suffering a physical disability, each of

his FEHA claims fails. See Nigro v. Sears, Roebuck & Co., 784 F.3d 495, 497–98


                                            2
(9th Cir. 2015); Carter v. Cal. Dep’t of Veterans Affairs, 38 Cal. 4th 914, 925 n.4

(2006); Jensen v. Wells Fargo Bank, 85 Cal. App. 4th 245, 263 (2000).

      The district court properly granted summary judgment in favor of J.B. Hunt

on the CFRA claim. Boudreaux concedes that he never sought CFRA leave, and

therefore cannot establish a prima facie case for CFRA retaliation. See Dudley v.

Dep’t of Transp., 90 Cal. App. 4th 255, 261 (2001).

      The district court properly granted summary judgment in favor of J.B. Hunt

on the claims of wrongful termination in violation of public policy and negligent

infliction of emotional distress. Boudreaux admits that these claims are derivative

of his FEHA claims, which were properly dismissed.

      AFFIRMED.




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