                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             JAN 10 2019
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT

MICHAEL FRAGADA,                                 No. 17-55900

              Plaintiff-Appellant,               D.C. No.
                                                 2:16-cv-03914-MWF-JPR
 v.

UNITED AIRLINES, INC., a Delaware                MEMORANDUM*
corporation,

              Defendant-Appellee.


                   Appeal from the United States District Court
                       for the Central District of California
                  Michael W. Fitzgerald, District Judge, Presiding

                            Submitted January 8, 2019**
                               Pasadena, California

Before: GRABER and WATFORD, Circuit Judges, and ZOUHARY,*** District
Judge.




      *
        This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
        The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
      ***
        The Honorable Jack Zouhary, United States District Judge for the
Northern District of Ohio, sitting by designation.
      Plaintiff Michael Fragada appeals the summary judgment entered in favor of

Defendant United Airlines on his employment discrimination and tort claims,

which arose from Plaintiff’s termination after he failed a drug test. Reviewing de

novo, and viewing the evidence in the light most favorable to the nonmoving party,

Albino v. Baca, 747 F.3d 1162, 1168 (9th Cir. 2014) (en banc), we affirm.

      1. The district court correctly granted summary judgment to Defendant on

Plaintiff’s claims for disability discrimination under the California Fair

Employment and Housing Act ("FEHA"), Cal. Gov’t Code §§ 12900–12996.

Assuming that Plaintiff qualified as a disabled individual under FEHA and that he

exhausted his claim that Defendant regarded him as having a disability, he failed to

create a genuine issue of material fact as to whether Defendant’s stated reason for

firing him—that he failed a drug test, thus violating company policy—was merely

a pretext for discrimination. See Guz v. Bechtel Nat’l, Inc., 8 P.3d 1089, 1113–14

(Cal. 2000) (recognizing that California courts have adopted the burden-shifting

framework from McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), for

discrimination claims).

      Plaintiff disputes the accuracy of the test results, but he cannot establish

pretext merely by showing that Defendant made the wrong decision when it fired

him. See King v. United Parcel Serv., Inc., 60 Cal. Rptr. 3d 359, 368 (Ct. App.


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2007) ("It is the employer’s honest belief in the stated reasons for firing an

employee and not the objective truth or falsity of the underlying facts that is at

issue in a discrimination case."). The record reflects that Defendant had a

"legitimate, nondiscriminatory reason" for firing Plaintiff, and Plaintiff failed to

provide evidence of pretext or a discriminatory motive, so his claims fail. Guz, 8

P.3d at 1114.

      2. The district court correctly granted summary judgment to Defendant on

Plaintiff’s FEHA claims for failure to engage in the interactive process and failure

to accommodate. Plaintiff never requested an accommodation from Defendant

during his employment, and he testified that he never needed an accommodation to

perform his job duties. One month after Defendant fired him, Plaintiff asked to

switch to a desk job, but he admitted that he could still work with heavy equipment

without any accommodation. Because Plaintiff never requested an accommodation

or demonstrated any need for an accommodation during his employment,

Defendant cannot be liable for failing to engage in the interactive process, Dep’t of

Fair Emp’t & Hous. v. Lucent Techs., Inc., 642 F.3d 728, 742–43 (9th Cir. 2011),

or failing to reasonably accommodate Plaintiff, see King, 60 Cal. Rptr. 3d at 374

("An employee cannot demand clairvoyance of his employer.").




                                           3
      3. The district court correctly granted summary judgment to Defendant on

Plaintiff’s claim that his termination violated public policy. This claim is

derivative of the FEHA claims, so it fails because those underlying claims fail.

Hanson v. Lucky Stores, Inc., 87 Cal. Rptr. 2d 487, 496–97 (Ct. App. 1999).

      4. The district court correctly granted summary judgment to Defendant on

Plaintiff’s claim for intentional infliction of emotional distress. Defendant,

following its established written policy, fired Plaintiff for failing a drug test that an

independent group of medical professionals administered. That ordinary

personnel-management action does not rise to the level of "outrageous conduct

beyond the bounds of human decency." Janken v. GM Hughes Elecs., 53 Cal.

Rptr. 2d 741, 756 (Ct. App. 1996). The record also lacks any evidence that

Defendant acted with the intent to cause Plaintiff emotional distress.

      5. The district court correctly granted summary judgment to Defendant on

Plaintiff’s claim for negligent infliction of emotional distress. Defendant acted

intentionally, not negligently, when it terminated Plaintiff. See Semore v. Pool,

266 Cal. Rptr. 280, 291 (Ct. App. 1990) ("An employer’s supervisory conduct is

inherently ‘intentional,’" so the challenged conduct "does not support a cause of

action for negligent infliction of emotional distress." (internal quotation marks

omitted)).


                                            4
      6. The district court correctly granted summary judgment to Defendant on

Plaintiff’s claim that his termination constituted an unlawful business practice

under California’s Unfair Competition Law, Cal. Bus. & Prof. Code § 17200.

Defendant did not violate FEHA by terminating Plaintiff. Accordingly, Plaintiff’s

termination did not constitute an unlawful business practice.

      AFFIRMED.




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