Zivkovic v. Southern California Edison Co.
Zivkovic v. Southern California Edison Co.
Opinion of the Court
MEMORANDUM
Mladen Zivkovic appeals judgment entered after a bench trial following remand from this court in Zivkovic v. Southern California Edison Co., 302 F.3d 1080 (9th Cir. 2002), on his claim that Southern California Edison Company (Edison) discriminated against him in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213. We have jurisdiction under 28 U.S.C. § 1291, and affirm.
Zivkovic further contends that the district court mistakenly intertwined the issue of reasonable accommodation with the issue of pretext. We disagree that this happened. The court had to, and did, determine whether Edison discriminated against Zivkovic by not hiring him, and in that connection, found that Edison’s articulated reasons were not pretextual. The court did not confuse that finding with its task of also determining whether Edison appropriately engaged in the interactive process and offered a reasonable accommodation.
Finally, Zivkovic suggests that Edison’s test was improper under 42 U.S.C. § 12112(b)(6) and (b)(7). However, we decline to consider this issue as it was not pursued in the district court or preserved by argument in the opening brief.
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
. Our review of a district court’s factual findings following a bench trial is for clear error. Saltarelli v. Bob Baker Group Med. Trust, 35 F.3d 382, 384 (9th Cir. 1994). When factual findings rest on credibility determinations, the trial court's findings aire given "even greater deference.” Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 575, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985).
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