Brown v. Cemex Construction Materials Pacific, LLC

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 31 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT BRIAN BROWN, No. 24-4966 D.C. No. Plaintiff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 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

(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.

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.