                                                                               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                            NOT FOR PUBLICATION                                APR 04 2011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




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       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.




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