NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAR 7 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARK MCDONALD, No. 22-35108

Plaintiff-Appellant, D.C. No. 2:20-cv-01189-JCC

v.

MEMORANDUM*

MOLINA HEALTHCARE OF

WASHINGTON, INC., a domestic profit corporation,

Defendant-Appellee,

and

MOLINA HEALTH CARE, INC., a foreign profit corporation,

Defendant.

Appeal from the United States District Court for the Western District of Washington John C. Coughenour, District Judge, Presiding

Submitted February 15, 2023** Seattle, Washington

* 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). Before: W. FLETCHER and VANDYKE, Circuit Judges, and LIBURDI,*** District Judge.

Plaintiff-Appellant Mark McDonald appeals from the district court’s grant of

summary judgment in favor of Defendant-Appellee Molina Healthcare of

Washington, Inc. (“MHW”) on his Americans with Disabilities Act (“ADA”)

claims. McDonald suffers from a hearing impairment and argues that MHW failed

to accommodate his disability and engaged in disability discrimination and

retaliation. The parties are familiar with the other facts, so we do not repeat them

here.

We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Humphrey

v. Mem’l Hosps. Ass’n, 239 F.3d 1128, 1133 (9th Cir. 2001), and may affirm on any

basis supported by the record, even one not relied upon by the district court, Curley

v. City of North Las Vegas, 772 F.3d 629, 631 (9th Cir. 2014). We affirm.

The district court correctly analyzed McDonald’s ADA discrimination and

retaliation claims under the McDonnell Douglas burden-shifting framework because

McDonald could not show direct proof of discrimination or retaliation. See

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973). Without direct

proof, a plaintiff has the initial burden of showing a prima facie case of

*** The Honorable Michael T. Liburdi, United States District Judge for the District of Arizona, sitting by designation.

2 discrimination or retaliation. Curley, 772 F.3d at 632. To establish a prima facie case

of discrimination, a plaintiff must show that: (1) he is a disabled person within the

meaning of the ADA; (2) he is a qualified individual with a disability; and (3) he

suffered adverse employment action because of his disability. Hutton v. Elf Atochem

N. Am., Inc., 273 F.3d 884, 891 (9th Cir. 2001). Similarly, to establish a prima facie

retaliation claim, a plaintiff must establish that: (1) he engaged in a protected

activity; (2) he suffered an adverse employment action; and (3) there was a causal

link between the protected activity and the adverse employment action. Villiarimo

v. Aloha Island Air, Inc., 281 F.3d 1054, 1064–65 (9th Cir. 2002). If the employee

satisfies this initial burden, the burden then shifts to the employer to establish a

legitimate, non-discriminatory (or non-retaliatory) reason for the challenged actions.

Id. at 1062. If the employer can establish as much, the burden returns to the

employee, who must then show that the proffered reason is pretextual. Id.

Even if McDonald could satisfy the prima facie showing of discrimination or

retaliation based on his hearing disability, MHW articulated a legitimate, non-

discriminatory, non-retaliatory reason for terminating McDonald’s employment

grounded in his inappropriate workplace behavior. MHW provided uncontroverted

evidence that McDonald threatened to break employees’ arms if they entered his

workspace without knocking, identified himself as the “ladies leg wrestling coach,”

repeatedly referred to his female supervisor as “Mr. Man,” called his female

3 coworker “fireball” and “tigress,” discussed his celibacy with his coworkers, and

sent unprofessional emails to his superiors.

While McDonald takes issue with how his conduct was characterized, he does

not deny making the remarks or engaging in the conduct. And McDonald did not

proffer any factual basis for his claims that other employees were treated differently

beyond his own conclusory testimony and pleadings. See Hernandez v. Spacelabs

Med. Inc., 343 F.3d 1107, 1112 (9th Cir. 2003) (explaining that, to survive summary

judgment, a party needs to offer facts beyond conclusory pleadings and self-serving

testimony).

McDonald further failed to establish that MHW’s reasons for the challenged

actions were pretextual. Where, as here, the record establishes that the “same actor

is responsible for both the hiring and the firing of a discrimination plaintiff, and both

actions occur within a short period of time, a strong inference arises that there was

no discriminatory motive.” Bradley v. Harcourt, Brace & Co., 104 F.3d 267, 270–

71 (9th Cir. 1996). It is uncontested that Olson hired McDonald, that she was aware

of his hearing disability at the time of his hiring, and that Olson ultimately made the

decision to terminate him. To show pretext, McDonald needed to have mustered “the

extraordinarily strong showing of discrimination necessary to defeat the same-actor

inference.” Coghlan v. Am. Seafoods Co. LLC, 413 F.3d 1090, 1097 (9th Cir. 2005).

He failed to do so.

4 McDonald finally argues that his workplace behavior cannot be viewed as a

legitimate non-discriminatory reason for his termination because his comments

relating to entering his workspace without knocking were directly related to his

hearing disability. But it is unclear how this disability necessitates threats about

breaking his coworkers’ arms. In any event, MHW provided ample evidence of

multiple instances of inappropriate conduct beyond the “broken arm” comment.

The district court also properly dismissed McDonald’s failure to

accommodate claim. McDonald requested a TTY/TDD machine and a private office

to accommodate his hearing impairment.1 The ADA treats the failure to provide a

reasonable accommodation as an act of discrimination if (1) the employee is a

qualified individual, (2) the employer receives adequate notice, and (3) a reasonable

accommodation is available that would not place an undue hardship on the operation

of the employer’s business. Snapp v. United Transp. Union, 889 F.3d 1088, 1095

(9th Cir. 2018) (internal quotation marks omitted). Importantly, an “employer is not

obligated to provide an employee the accommodation he requests or prefers, the

employer need only provide some reasonable accommodation.” Zivkovic v. S. Cal.

1 McDonald filed a Motion for this Court to Take Judicial Notice of Supplemental Authorities and/or Supplement the Record (ECF No. 27). Having considered the Motion and materials filed in connection, the Court grants the Motion to the extent that we take judicial notice of the information describing the various hearing assistance technologies. See Fed. R. Evid. 201(b)(2).

5 Edison Co., 302 F.3d 1080, 1089 (9th Cir. 2002) (quotation marks and citation

omitted).

MHW demonstrated meaningful efforts to reasonably accommodate

McDonald’s disability. See Snapp, 889 F.3d at 1095 (stating that notifying an

employer of a need for an accommodation “triggers a duty to engage in an interactive

process . . . for accommodating the employee”) (internal quotation marks omitted).

The MHW office does not have any available private workspaces available for

employees below the title of director. To minimize background noise, MHW placed

McDonald in a cubicle against a wall in the quietest area of the office floor. MHW

also provided McDonald with a special amplifying headset to assist him while it

worked to acquire a TTY/TDD machine.

McDonald failed to show that the accommodations furnished by MHW were

insufficient for him to perform the essential functions of his job. McDonald admitted

that he was doing more work than his peers and that MHW was giving him additional

responsibilities. If anything, the record demonstrates that McDonald was more

productive than his peers and clearly capable of performing the essential functions

of his job with the accommodations MHW provided. It was McDonald’s own

workplace conduct and his poor interaction with other MHW employees that

prompted his separation.

AFFIRMED.

6