                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            FEB 22 2017
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


HILYALE MAKOR, an individual,                    No.   15-55602

              Plaintiff-Appellant,               D.C. No.
                                                 5:14-cv-00671-VAP-SP
 v.

BURLINGTON NORTHERN SANTA FE                     MEMORANDUM*
RAILWAY COMPANY, a Delaware
corporation,

              Defendant-Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                    Virginia A. Phillips, Chief Judge, Presiding

                      Argued and Submitted February 8, 2017
                               Pasadena, California

Before: SCHROEDER, DAVIS,** and MURGUIA, Circuit Judges.

      In July 2012, Hilyale Makor, who worked as a train master for Burlington

Northern Santa Fe Railway Company (“BNSF”) in San Bernardino, California,


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Andre M. Davis, United States Circuit Judge for the
U.S. Court of Appeals for the Fourth Circuit, sitting by designation.
was diagnosed with situational anxiety. Makor took medical leave from July 20,

2012 until his return on March 17, 2013. Throughout that time period, Makor’s

physicians sent BNSF a series of notes extending Makor’s medical leave without

indicating when Makor might resume work; in fact, the final two notes stated that

Makor was “totally incapacitated” and did not provide a definite return date.

      On October 17, 2012, BNSF acted pursuant to its company policy and

replaced Makor while he remained out on paid leave. Once Makor’s leave benefits

expired, BNSF afforded him 60 days to find a new position with the company.

When Makor failed to do so, BNSF terminated him according to its company

policy. Makor filed suit against BNSF, alleging six claims under California’s Fair

Employment and Housing Act (“FEHA”). The district court granted summary

judgment in favor of BNSF on all six claims. We affirm.

      We review a district court’s grant of summary judgment de novo.

Entrepreneur Media v. Smith, 279 F.3d 1135, 1139–40 (9th Cir. 2002).

      1. The district court did not err in granting summary judgment on Makor’s

claims alleging failure to accommodate and failure to engage in the interactive

process. See Cal. Gov’t Code §§ 12940(m), (n). To prevail on both of these claims,

a plaintiff must demonstrate that a reasonable accommodation was available.

Swanson v. Morongo Unified Sch. Dist., 181 Cal. Rptr. 3d 553, 566 (Ct. App.


                                          2
2014) (holding that a plaintiff must show the availability of reasonable

accommodation to prevail on a failure-to-accommodate claim); Nadaf-Rahrov v.

Neiman Marcus Grp., Inc., 83 Cal. Rptr. 3d 190, 214 (Ct. App. 2008) (“[A]n

employer may be held liable for failing to engage in the good faith interactive

process only if a reasonable accommodation was available.”). Makor argues that

BNSF could have accommodated him by providing job protection for the duration

of his leave or by reassigning him upon his return to work.

      a. Job-protected leave for a fixed period can be an accommodation, but

indefinite leave is not reasonable as a matter of law. Hanson v. Lucky Stores, Inc.,

87 Cal. Rptr. 2d 487, 494 (Ct. App. 1999). “[T]he mere fact that a medical leave

has been repeatedly extended does not necessarily establish that it would continue

indefinitely. In some circumstances, an employer may need to consult directly with

the employee’s physician to determine the employee’s medical restrictions and

prognosis for improvement or recovery.” Nadaf-Rahrov, 83 Cal. Rptr. 3d at 222.

Here, even if BNSF had inquired into Makor’s situation before replacing him, it is

unclear what such an inquiry would have revealed. The evidence shows that

Makor’s physicians did not provide any concrete return dates and continued to

describe him as “totally incapacitated” between October 2012 and March 2013.

Makor has not provided any evidence that the duration of his leave would


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somehow have been more concrete if BNSF had only contacted his physicians.

Therefore, Makor has failed to show that job-protected leave was available as a

reasonable accommodation.

      b. Under the FEHA implementing regulations, reassignment is available

to accommodate a returning employee who suffers from the lingering effects of a

disability. See Cal. Code Regs. tit. 2, §§ 11068(d)(1), (g). Here, Makor was not

entitled to reassignment because he returned to work without restrictions, and he

has not provided any evidence that he continued to experience residual limitations

related to his situational anxiety. Therefore, Makor has failed to show that

reassignment was available as a reasonable accommodation.

      2. The district court did not err in granting summary judgment on Makor’s

claims alleging disability discrimination and retaliation. See Cal. Gov’t Code §§

12940(a), (h). Both of these claims are analyzed under the McDonnell Douglas

burden-shifting framework, which proceeds in three steps: (1) the plaintiff must

establish a prima facie case of discrimination or retaliation; (2) the employer must

then articulate a legitimate, nondiscriminatory reason for the adverse employment

action; and (3) the plaintiff must show that the employer’s stated reason is

pretextual. Yanowitz v. L’Oreal USA, Inc., 116 P.3d 1123, 1130 (Cal. 2005).




                                          4
      Even assuming Makor established a prima facie case of discrimination or

retaliation, his claims fail at the second and third steps of the McDonnell Douglas

analysis. Turning to the second step, BNSF has articulated a nondiscriminatory

reason by presenting evidence that it terminated Makor pursuant to a pre-existing,

neutral policy. Raytheon Co. v. Hernandez, 540 U.S. 44, 55, (2003) (“If petitioner

did indeed apply a neutral, generally applicable no-rehire policy in rejecting

respondent’s application, petitioner’s decision not to rehire respondent can, in no

way, be said to have been motivated by respondent’s disability.”). As to the third

step, Makor has not presented any evidence of pretext.

      3. The district court did not err in granting summary judgment on Makor’s

claim alleging failure to prevent discrimination. See Cal. Gov’t Code § 12940(k).

“[C]ourts have required a finding of actual discrimination or harassment under

FEHA before a plaintiff may prevail under section 12940(k).” Carter v. California

Dep’t of Veterans Affairs, 135 P.3d 637, 645 n.4 (Cal. 2006). Makor has not

prevailed on his discrimination or harassment claims under FEHA.

      4. The district court did not err in granting summary judgment on Makor’s

claim alleging wrongful discharge because Makor has not shown that he was

discharged in violation of FEHA.

      AFFIRMED.


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