“The prima facie case serves an important function in the litigation: it eliminates the most common nondiscriminatory reasons for the plaintiff’s rejection.”
How later courts described this case
- “The prima facie case serves an important function in the litigation: it eliminates the most common nondiscriminatory reasons for the plaintiff’s rejection.”
- “[T]he plaintiff still must produce evidence [to establish his prima facie case], not just pleadings or argument”
Written by the judges who cited it.
The opinion
NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 31 2025
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIAN BROWN, No. 24-4966
D.C. No.
Plaintiff - Appellant, 2:22-cv-02128-WBS-DB
v.
MEMORANDUM*
CEMEX CONSTRUCTION MATERIALS
PACIFIC, LLC,
Defendant - Appellee.
Appeal from the United States District Court
for the Eastern District of California
William B. Shubb, District Judge, Presiding
Argued and Submitted October 21, 2025
San Francisco, California
Before: PAEZ, BEA, and FORREST, Circuit Judges.
Plaintiff Brian Brown (“Brown”) appeals the district court’s grant of
summary judgment to defendant CEMEX Construction Materials Pacific, LLC
(“CEMEX”). Brown, who uses a lower leg prosthetic, alleged that CEMEX failed
to hire him as a cement truck driver because of his disability. He asserts three
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
claims under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et
seq., and one claim under California’s Fair Employment and Housing Act
(“FEHA”), Cal. Gov. Code § 12900 et seq.1
We review de novo the district court’s grant of summary judgment. See
Vasquez v. County of Los Angeles, 349 F.3d 634, 639 (9th Cir. 2003). We have
jurisdiction pursuant to 28 U.S.C. § 1291.
We apply the McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–03
(1973), framework to analyze ADA and FEHA disability discrimination claims.2
See Snead v. Metro. Prop. & Cas. Ins. Co., 237 F.3d 1080, 1093 (9th Cir. 2001).
Under this framework, the plaintiff must first establish a prima facie case of
discrimination. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993). To
establish a prima facie failure-to-hire case under the ADA, the plaintiff “must show
that (1) []he is disabled within the meaning of the ADA; (2) []he is a qualified
individual able to perform the essential functions of the job with reasonable
accommodation; and (3) []he suffered an adverse employment action because of
[his] disability.” Samper v. Providence St. Vincent Med. Ctr., 675 F.3d 1233, 1237
1
Brown originally asserted an additional FEHA claim for failure to engage in the
interactive process. The parties voluntarily agreed to dismiss this claim, and it is
therefore not addressed in this disposition.
2
“Because the FEHA provisions relating to disability discrimination are based on
the ADA,” we analyze “state and federal disability claims together, relying on
federal authority in the absence of contrary or differing state law.” Humphrey v.
Mem’l Hosps. Ass’n, 239 F.3d 1128, 1133 n.6 (9th Cir. 2001).
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(9th Cir. 2012) (quoting Allen v. Pac. Bell, 348 F.3d 1113, 1114 (9th Cir. 2003)).
The third prong requires that the plaintiff establish that any adverse employment
actions “would not have occurred but for [his] disability.” Murray v. Mayo Clinic,
934 F.3d 1101, 1105 (9th Cir. 2019).
Here, the district court found that Brown failed to establish his prima facie
case because he offered no evidence of the third prong: that CEMEX failed to hire
him because of his disability. The district court reasoned that this lack of evidence
entitled CEMEX to judgment as a matter of law. We affirm.
On this record, we agree with the district court that Brown failed to establish
a prima facie case of disability discrimination. It is undisputed that at least one
panelist who interviewed Brown for the position, Tony Skulick (“Skulick”), was
aware of his disability. It is also undisputed, however, that during the interview
process, no one at CEMEX ever made a comment to Brown regarding his
disability or his ability to do his job. Brown relies instead on circumstantial
evidence, arguing that CEMEX materially misrepresented his interview answers in
the panelists’ interview notes to artificially give him a low interview score. Brown
contends that these misrepresentations are made more suspicious by the fact that
another interview panelist, Vince Ramirez (“Ramirez”), denied having any prior
knowledge of Brown’s disability or having previously visited Brown’s work site,
despite evidence to the contrary in the record.
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This circumstantial evidence, standing alone, does not give rise to an
inference of unlawful discrimination. There is no evidence in the record that
demonstrates that CEMEX misrepresented Brown’s interview answers because of
his disability. See Weil v. Citizens Telecom Servs. Co., LLC, 922 F.3d 993, 1003
(9th Cir. 2019) (“[T]he plaintiff still must produce evidence [to establish his prima
facie case], not just pleadings or argument”). Brown’s showing fails to satisfy his
prima facie burden because it does not contain any indicia that CEMEX’s decision
was motivated by his disability, as opposed to any other lawful factor. See Texas
Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248, 253–54 (1981) (“The prima facie
case serves an important function in the litigation: it eliminates the most common
nondiscriminatory reasons for the plaintiff’s rejection.”).
Additionally, we agree with the district court that any discrepancies in the
record regarding Ramirez’s knowledge of Brown’s disability may undermine
Ramirez’s credibility, but do not satisfy Brown’s prima facie burden.
AFFIRMED.
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