Opinion

Castro-Ramirez v. Dependable Highway Express, Inc.

2 Cal. App. 5th 1028
207 Cal. Rptr. 3d 120
33 Am. Disabilities Cas. (BNA) 39
2016 Cal. App. LEXIS 722

Court: California Court of Appeal
Filed: Aug 29, 2016
Status: Published
On the bench: Flier, Grimes, Rubin
Cited by: 35 cases
Authority: More cited than 2.8%

stating that because of these structural differences, “[o]ne cannot, therefore, read ‘association with a disabled person’ into every use of the term ‘disability’ in the ADA”

How later courts described this case

stating that because of these structural differences, “[o]ne cannot, therefore, read ‘association with a disabled person’ into every use of the term ‘disability’ in the ADA”
finding a plausible claim when the employee complained about a change in hours after 8 previously telling the employer that he needed to care for his son with a disability
“Proximity in time between the employee’s protected activity and the adverse employment action satisfies the employee’s prima facie burden.”

Written by the judges who cited it.

The opinion

Filed 8/29/16; on rehearing

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

LUIS CASTRO-RAMIREZ, B261165, B262524

Plaintiff and Appellant, (Los Angeles County

Super. Ct. No. BC511197)

DEPENDABLE HIGHWAY EXPRESS,

INC.,

Defendant and Respondent.

APPEAL from a judgment and an order of the Superior Court for the County of

Los Angeles, Richard Fruin, Judge. B261165 judgment reversed; B262524 order

reversed.

Employees’ Legal Advocates and A. Jacob Nalbandyan for Plaintiff and

Appellant.

Gordon & Rees, Don Willenburg, Mark S. Posard and Jennifer M. Lynch for

Defendant and Respondent.

******

Plaintiff Luis Castro-Ramirez sued his former employer, Dependable Highway

Express, Inc. (DHE), alleging causes of action for disability discrimination, failure to

prevent discrimination, and retaliation under the Fair Employment and Housing Act

(FEHA or the Act) (Gov. Code, § 12900 et seq.), as well as wrongful termination in

violation of public policy. (He alleged other claims not pursued on appeal.) Plaintiff’s

son requires daily dialysis, and according to the evidence, plaintiff must be the one to

administer the dialysis. For several years, plaintiff’s supervisors scheduled him so that he

could be home at night for his son’s dialysis. That schedule changed when a new

supervisor took over and ultimately terminated plaintiff for refusing to work a shift that

did not permit him to be home in time for his son’s dialysis. The trial court granted

defendant’s motion for summary judgment and denied plaintiff’s motion to tax costs.

We reverse the judgment and the order denying the motion to tax costs. Plaintiff

has demonstrated triable issues of material fact on his causes of action for associational

disability discrimination, failure to prevent discrimination, retaliation, and wrongful

termination in violation of public policy.

FACTS AND PROCEDURE

1. The Complaint

Plaintiff alleged that, when DHE hired him to work as a truck driver in 2010, he

told DHE he had a disabled son who required dialysis on a daily basis and he (plaintiff)

was responsible for administering the dialysis. He requested work schedule

accommodations that his supervisor initially granted, permitting him to attend to his son

in the evening. In 2013, a new supervisor changed his work schedule. Plaintiff

complained to the new supervisor about the change in schedule. On April 23, 2013, the

supervisor gave plaintiff the 12:00 p.m. shift. Plaintiff objected and explained that the

shift would not allow him to be home early enough in the evening to tend to his disabled

son. The supervisor spoke to a manager and then terminated plaintiff’s employment.

The supervisor told plaintiff he “had quit by choosing not to take the assigned shift.”

Plaintiff’s complaint alleged a cause of action for associational disability

discrimination in violation of FEHA, claiming defendant “was substantially motivated, in

part, to terminate Plaintiff because of his association with his disabled family

members . . . .” Plaintiff also alleged DHE’s conduct was in retaliation for his assertion

of rights under FEHA. Plaintiff alleged several other causes of action, including failure

to take reasonable steps to prevent the unlawful discrimination, and wrongful termination

in violation of public policy.

2. DHE’s Motion for Summary Judgment

The pertinent facts reflected in the parties’ summary judgment papers are as

follows. DHE employed plaintiff at will. DHE hired plaintiff in December 2009 to work

out of its Los Angeles terminal as a local driver. During his time with DHE, he drove

different routes throughout Los Angeles County.

Plaintiff’s son needs a kidney transplant and has required daily home dialysis

treatments for the last 15 years. Plaintiff is the only person in his household who knows

how to operate the dialysis machine for his son. One has to take classes to learn how to

operate the machine.

When plaintiff first began work at DHE, he informed the recruiting manager who

hired him that he had daily obligations at home related to administering dialysis to his

son. Plaintiff reported to Armando Gomez and Winston Bermudez, who were his initial

supervisors, for over three years. Bermudez became his supervisor in 2011, when

Bermudez was promoted to the dispatcher position. When Bermudez became his

supervisor, plaintiff told Bermudez that he had a disabled son to whom he needed to

apply daily dialysis. He also told Bermudez he needed to end his shifts early enough to

get home for his son’s treatments. Bermudez met plaintiff’s needs as often as he could

by giving him a shift that enabled him to care for his son. Bermudez never gave plaintiff

a shift that began as late as noon. Gomez also knew about plaintiff’s special need to go

home early to care for his son and informed Bermudez of this when Bermudez first

became a dispatcher. Thus, while the schedules of DHE’s drivers varied from day to day,

plaintiff’s typical schedule was from 9:00 or 10:00 a.m. until 7:00 or 8:00 p.m. There

were times, however, when plaintiff worked shifts ending later, such as after 10:00 or

11:00 p.m.

Plaintiff’s ability to work later depended on his son’s condition on any given day.

The amount of time his son needed to be connected to the machine varied between 10 and

12 hours. The time at which plaintiff would need to start administering dialysis also

varied from between 7:00 p.m. and 12:00 a.m. There was no “normal day,” beyond these

general guidelines. On days when his son would need to be connected on the earlier side,

plaintiff would communicate this to Gomez or Bermudez.

Throughout his employment, plaintiff performed satisfactorily with no problems.

Plaintiff loved his job and appreciated DHE’s assistance “from the heart.” That

assistance changed, however, when Bermudez was no longer his supervisor.

Sometime in March 2013, DHE promoted Bermudez to operations manager and

Boldomero Munoz-Guillen (known as Junior) became plaintiff’s supervisor (and

Bermudez supervised Junior). When this happened, Bermudez told Junior that plaintiff

had special needs related to his disabled son and needed to leave early. Bermudez asked

Junior to “work with” plaintiff.

At some point later in March 2013, plaintiff complained to Bermudez that Junior

had changed his hours, and he was starting later and finishing later and was unable to

leave to tend to his son. Bermudez told Junior that plaintiff was complaining about his

changing hours and his need to leave early. Junior told Bermudez that he did not need to

bring plaintiff in earlier at the time, but Junior indicated he would “work on that.”

Bermudez never reported plaintiff’s special needs to human resources and did not

monitor plaintiff’s schedule after plaintiff complained to him about Junior.

On April 15, 2013, approximately a week before plaintiff’s termination, one of

DHE’s customers sent an e-mail to Bermudez and another manager (not Junior) asking

for plaintiff, the “regular drive[r],” to do the customer’s deliveries at 7:00 a.m. The

customer stated that it “ha[d] always been done like that until recently.” When plaintiff

asked Junior about deliveries to this customer, Junior told him that the customer did not

want plaintiff to make those deliveries and did not like plaintiff’s work, and that was why

Junior had given him shifts starting later. A few days later, the customer called plaintiff

directly. The customer asked plaintiff why he was not making deliveries. Plaintiff

explained that Junior had said the customer did not like his work. The customer told

plaintiff that was untrue and gave him a copy of the e-mail specifically requesting

plaintiff’s services. When deposed, Junior testified that he had seen the e-mail from the

customer, but he could not recall exactly when.

On April 22, 2013, Junior assigned plaintiff a shift that started at 11:55 a.m., the

latest he had ever started a shift, and ended at 9:04 p.m. He had “no problem” with the

route that day because it still allowed him to be home in time for his son’s dialysis. But

he told Junior: “Please, I need to have my job like always. I’ve always had help from

everyone except you.”

The following day, on April 23, 2013, Junior assigned plaintiff a shift beginning at

12:00 p.m. Unlike the previous day, this assignment was for a route from Los Angeles to

Oxnard and back, including multiple pickups and deliveries. Plaintiff explained to Junior

that it was too late in the day for him to drive that route because he could not get back in

time to administer dialysis to his son by 8:00 p.m. Plaintiff requested another route or

simply to take that day off. He also reminded Junior that Bermudez had already talked to

Junior about plaintiff’s need for shifts enabling him to leave early for his son.

When plaintiff complained to Junior, Junior laughed and said, “Winston

[Bermudez] doesn’t work here anymore. Now it’s me.” Junior told plaintiff that, if he

did not do the route, he was fired. Plaintiff said he was sorry, but he could not do it.

Junior told him to return the next day to sign the termination paperwork.

Plaintiff returned to DHE for three consecutive days after that because he wanted

to work. On the third day, another manager told him that he had not worked for three

days and “of course” he was terminated. DHE processed the termination as a

“[v]oluntary [t]ermination” or “[r]esignation,” with the stated reason being “[r]efused

assignment.” Plaintiff refused to sign the document stating he had resigned.

On the day Junior terminated plaintiff, Junior scheduled at least eight other drivers

to start shifts well before noon, with start times at 4:54 a.m., 5:54 a.m., 7:00 a.m.,

7:54 a.m., 8:06 a.m., 8:54 a.m., 9:00 a.m., and 10:54 a.m.

Maria Ramirez, DHE’s human resources manager, testified: “It is not uncommon

for drivers at [DHE] to refuse work assignments for a variety of reasons; if one of its

drivers refuses a work assignment for any reason, this is grounds for termination.”

DHE’s employee handbook states refusal to obey a supervisor’s order or refusal to

perform a job assignment is grounds for disciplinary action, including suspension without

pay, discharge, counseling, and warning notices.

3. The Trial Court’s Rulings

The trial court granted DHE’s motion for summary judgment, concluding that

there was no triable issue of material fact on any cause of action. The court rejected

plaintiff’s theory that DHE violated FEHA by terminating him for requesting an

accommodation to care for a relative with a disability. The court concluded plaintiff’s

evidence at best showed that Junior was unwilling to provide accommodation to the same

extent as plaintiff’s previous supervisor. The court found no evidence to show the

termination decision was based on plaintiff’s association with his child, or in retaliation

for his scheduling requests. Even assuming plaintiff could make a prima facie case, the

court found inadequate evidence that defendant’s stated reason for termination was

pretextual. Plaintiff could not show the assignment he refused was improperly motivated,

because plaintiff worked nearly identical hours the previous day without objection.

The court entered judgment for DHE and entered an amended judgment of

dismissal several weeks later, awarding statutory costs to DHE in the amount of

$7,592.08. Still later, on January 8, 2015, the trial court denied plaintiff’s motion to tax

or strike DHE’s costs, rejecting plaintiff’s argument that an employer is not entitled to

costs in a FEHA action.

Plaintiff appealed from the judgment and the subsequent order denying his motion

to tax costs. We consolidated the appeals for purposes of briefing, oral argument, and

decision.

STANDARD OF REVIEW

We review an order granting summary judgment de novo, “considering all the

evidence set forth in the moving and opposition papers except that to which objections

have been made and sustained.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317,

334 (Guz).)

A defendant moving for summary judgment must show “that one or more

elements of the cause of action . . . cannot be established, or that there is a complete

defense to that cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) “In performing

our de novo review, we must view the evidence in a light favorable to plaintiff as the

losing party [citation], liberally construing [his or] her evidentiary submission while

strictly scrutinizing defendants’ own showing, and resolving any evidentiary doubts or

ambiguities in plaintiff’s favor.” (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th

763, 768.) We accept as true both the facts shown by the losing party’s evidence and

reasonable inferences from that evidence. (Aguilar v. Atlantic Richfield Co. (2001) 25

Cal.4th 826, 856; Sada v. Robert F. Kennedy Medical Center (1997) 56 Cal.App.4th 138,

148.)

Summary judgment is appropriate only when “all the papers submitted show that

there is no triable issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) A triable issue of

material fact exists if the evidence and inferences therefrom would allow a reasonable

juror to find the underlying fact in favor of the party opposing summary judgment.

(Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at pp. 850, 856.)

DISCUSSION

1. Associational Disability Discrimination

FEHA provides a cause of action for associational disability discrimination,

although it is a seldom-litigated cause of action. (Rope v. Auto-Chlor System of

Washington, Inc. (2013) 220 Cal.App.4th 635, 656-657 (Rope), superseded by statute on

another ground.) As to disability discrimination generally, FEHA makes it unlawful for

an employer, “because of the . . . physical disability . . . of any person, . . . to discharge

the person from employment . . . or to discriminate against the person . . . in terms,

conditions, or privileges of employment.” (Gov. Code, § 12940, subd. (a).)1 The very

definition of a “physical disability” embraces association with a physically disabled

person. FEHA explains that the phrase “‘physical disability’ . . . includes a

perception . . . that the person is associated with a person who has, or is perceived to

have” a physical disability. (§ 12926, subd. (o).)2 Accordingly, when FEHA forbids

discrimination based on a disability, it also forbids discrimination based on a person’s

association with another who has a disability.

A prima facie case of disability discrimination under FEHA requires a showing

that (1) the plaintiff suffered from a disability, (2) the plaintiff was otherwise qualified to

do his or her job, with or without reasonable accommodation, and (3) the plaintiff was

subjected to adverse employment action because of the disability. (Green v. State of

California (2007) 42 Cal.4th 254, 262 (Green); see Nealy v. City of Santa Monica (2015)

234 Cal.App.4th 359, 378-379; Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245,

255 (Jensen).) Adapting this framework to the associational discrimination context, the

“disability” from which the plaintiff suffers is his or her association with a disabled

person. Respecting the third element, the disability must be a substantial factor

motivating the employer’s adverse employment action. (Cal. Code Regs., tit. 2, § 11009,

subd. (c); Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 229, 232; Rope, supra,

220 Cal.App.4th at p. 658.)

Once the plaintiff establishes a prima facie case, “the burden then shifts to the

employer to offer a legitimate, nondiscriminatory reason for the adverse employment

action.” (Deschene v. Pinole Point Steel Co. (1999) 76 Cal.App.4th 33, 44.) The

1 Further undesignated statutory references are to the Government Code.

2 The complete text states: “As used in [FEHA] in connection with unlawful

practices, unless a different meaning clearly appears from the context: [¶] . . . [¶] (o)

‘Race, religious creed, color, national origin, ancestry, physical disability, mental

disability, medical condition, genetic information, marital status, sex, age, sexual

orientation, or military and veteran status’ includes a perception that the person has any

of those characteristics or that the person is associated with a person who has, or is

perceived to have, any of those characteristics.” (§ 12926, subd. (o).)

plaintiff may then show the employer’s proffered reason is pretextual (Rope, supra, 220

Cal.App.4th at p. 656) or offer any further evidence of discriminatory motive. (Guz,

supra, 24 Cal.4th at p. 356.) “In an appropriate case, evidence of dishonest reasons,

considered together with the elements of the prima facie case, may permit a finding of

prohibited bias.” (Ibid.)

Here, DHE challenges plaintiff’s case on several grounds. First, it argues that

plaintiff’s “entire case hinges on his fervent belief that [DHE] had an obligation to

provide him with a special schedule as an accommodation for his son’s illness,” but it

contends DHE had no such duty. Second, DHE argues that, as a matter of law, plaintiff

cannot establish his association with his disabled son motivated his termination, and

moreover he cannot show that DHE’s legitimate, nondiscriminatory reason for

terminating him was pretextual. As we shall explain, none of these arguments entitle

DHE to summary judgment.

a. Plaintiff’s Associational Disability Discrimination Cause of Action Survives His

Abandonment of His Failure to Accommodate Cause of Action

DHE maintains that fundamentally this is a reasonable accommodation case, and

argues that FEHA is “clear” that employers need not make accommodations for

associates of the disabled—that is, only employees who are themselves disabled are

entitled to reasonable accommodations. For his part, plaintiff tells us he has abandoned

the reasonable accommodation cause of action and is not challenging the court’s ruling

on it. We agree that the trial court’s ruling on the failure to accommodate cause of action

is not at issue on appeal, and we do not decide whether FEHA establishes a separate duty

to reasonably accommodate employees who associate with a disabled person.

To us, the proper inquiry is: Even if DHE had no separate duty under FEHA to

provide plaintiff with reasonable accommodations for his son’s illness, was there

sufficient evidence that discriminatory animus motivated Junior’s refusal to honor

plaintiff’s scheduling request and his termination of plaintiff? We address that point in

part 1.b., post. We pause here to point out that plaintiff’s abandonment of his failure to

accommodate cause of action does not in itself mean he may not pursue his claim that he

suffered discrimination based on associational disability. Nor does his decision to not

pursue a failure to accommodate mean that associational disability is no longer part of

this case.

In its respondent’s brief, DHE implicitly acknowledges that the abandonment of

the accommodation cause of action does not sound the death knell to the discrimination

cause of action because DHE proceeds to argue that there is no triable issue of fact either

of motive or pretext for plaintiff to establish discrimination. Even so, we find

accommodation relevant as to plaintiff’s discrimination cause of action. We first observe

that no published California case has determined whether employers have a duty under

FEHA to provide reasonable accommodations to an applicant or employee who is

associated with a disabled person. We acknowledge that the reasonable accommodation

subdivision of section 12940 does not expressly refer to persons other than an applicant

or employee. The pertinent language makes it an unlawful employment practice “[f]or an

employer or other entity covered by this part to fail to make reasonable accommodation

for the known physical or mental disability of an applicant or employee.” (§ 12940,

subd. (m)(1).) But we do not read subdivision (m)(1) in isolation; instead we read parts

of a statutory scheme together and construe them in a manner that gives effect to each.

(City of Huntington Beach v. Board of Administration (1992) 4 Cal.4th 462, 468.) And

under section 12926, subdivision (o), “‘physical disability’ . . . includes a perception” that

a person “is associated with a person who has, or is perceived to have,” a physical

disability. In other words, association with a physically disabled person appears to be

itself a disability under FEHA. Like the many other definitions set forth in section

12926, this definition of a physical disability applies “in connection with unlawful

practices [under FEHA], unless a different meaning clearly appears from the context.”

(§ 12926.) Accordingly, when section 12940, subdivision (m) requires employers to

reasonably accommodate “the known physical . . . disability of an applicant or

employee,” read in conjunction with other relevant provisions, subdivision (m) may

reasonably be interpreted to require accommodation based on the employee’s association

with a physically disabled person. Again, given plaintiff’s concession, we do not decide

this point. We only observe that the accommodation issue is not settled and that it

appears significantly intertwined with the statutory prohibition against disability

discrimination, a subject to which we now turn.

As we explained above, FEHA creates an associational disability discrimination

claim in the manner just described—by reading association with a physically disabled

person (§ 12926, subd. (o)) into the Act where discrimination based on “physical

disability” appears (§ 12940, subd. (a)). By express terms, the two pertinent sections of

FEHA make it unlawful to “discharge a person from employment” (§ 12940, subd. (a))

based on physical disability and other characteristics, which include “a perception that

the person has any of those characteristics or that the person is associated with a person

who has, or is perceived to have, any of those characteristics.” (§ 12926, subd. (o).)

In Rope, our colleagues in Division One found sufficient allegations of both

associational disability discrimination and wrongful termination in violation of public

policy in a case in which the employee was fired after he announced his plan to donate a

kidney to his sister. (Rope, supra, 220 Cal.App.4th at pp. 657-658.) Accordingly, Rope

reversed the trial court’s sustaining of a demurrer to those causes of action. (Id. at

p. 661.) In significant contrast, the Rope court rejected the plaintiff’s claim of retaliation

based on a request to accommodate, impliedly acknowledging that discrimination and

accommodation retaliation are separate, albeit related, concepts. (Id. at pp. 651-654.)3

b. The Proper Framework for Associational Disability Rests on State, Not Federal,

Law

Even though DHE acknowledges that Rope sets out the current California law on

associational disability, DHE points to several federal cases in support of its argument

that plaintiff has not established a triable issue of fact as to discrimination. DHE relies on

federal cases interpreting the Americans with Disabilities Act of 1990 (ADA) (42 U.S.C.

3 That part of the Rope decision dealing with retaliation for requesting

accommodation was later superseded by amendments to Government Code section

12940, subdivision (m)(2). (See part 2, post.)

§ 12101 et seq.). The ADA and the cases cited by DHE are easily distinguished. We do

not discard ADA precedents blindly, and indeed we often look to federal law interpreting

the ADA when construing FEHA, particularly when the question involves parallel

statutory language. (Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 57.)

But the two statutory schemes are not coextensive. Our Legislature has expressly

declared “[t]he law of this state in the area of disabilities provides protections

independent from those in the [ADA]. Although the federal act provides a floor of

protection, this state’s law has always, even prior to passage of the federal act, afforded

additional protections.” (§ 12926.1, subd. (a).) One instance in which we should part

ways with federal case authority is when the statutory language is not parallel. That is

the case here.

The ADA creates a cause of action for associational disability discrimination using

language that structurally is different than FEHA. The “[g]eneral rule” is that “[n]o

covered entity shall discriminate against a qualified individual on the basis of

disability . . . .” (42 U.S.C. § 12112(a).) “[T]he term ‘discriminate against a qualified

individual on the basis of disability’ includes,” among other things, “excluding or

otherwise denying equal jobs or benefits to a qualified individual because of the known

disability of an individual with whom the qualified individual is known to have a

relationship or association.” (42 U.S.C. § 12112(b)(4).) Unlike FEHA, the ADA does

not define the term “disability” itself as including association with the disabled. Instead,

it defines discrimination based on association as one type of “‘discriminat[ion] against a

qualified individual on the basis of disability.’” Elsewhere, the ADA states

“‘discriminat[ing] against a qualified individual on the basis of disability’” also includes

“not making reasonable accommodations to the known physical or mental limitations of

an otherwise qualified individual with a disability who is an applicant or employee.” (42

U.S.C. § 12112(b)(5)(A), italics added.) One cannot, therefore, read “association with a

disabled person” into every use of the term “disability” in the ADA.

Because of these structural differences, including differences in language for

associational disability accommodation, federal precedent (e.g., Erdman v. Nationwide

Ins. Co. (3d Cir. 2009) 582 F.3d 500, 510; Larimer v. International Business Machines

Corp. (7th Cir. 2004) 370 F.3d 698, 700 (Larimer); Den Hartog v. Wasatch Academy

(10th Cir. 1997) 129 F.3d 1076, 1084; Tyndall v. National Educ. Centers (4th Cir. 1994)

31 F.3d 209, 214) is less helpful than in other FEHA interpretations.

Since we are not tasked to decide whether either FEHA or the ADA creates a

failure to accommodate cause of action based on associational disability, we next turn to

DHE’s principal argument on appeal—that its motion for summary judgment was

properly granted because there is no triable issue of fact as to either discriminatory

motive or pretext.4

c. Triable Issues of Material Fact Exist as to Discriminatory Motive and Pretext

Moving to DHE’s challenge to the evidence of discriminatory motive and pretext,

our starting point is Rope. Rope relied substantially on Larimer, which the Rope court

described as “the seminal authority on disability-based associational discrimination under

the ADA.” (Rope, supra, 220 Cal.App.4th at p. 656.)

In Larimer, the court opined that “[t]hree types of situation are, we believe, within

the intended scope of the rarely litigated . . . association section [of the ADA]. We’ll call

them ‘expense,’ ‘disability by association,’ and ‘distraction.’” (Larimer, supra, 370 F.3d

at p. 700.) The court continued: “They can be illustrated as follows: an employee is

fired (or suffers some other adverse personnel action) because (1) (‘expense’) his spouse

has a disability that is costly to the employer because the spouse is covered by the

company’s health plan; (2a) (‘disability by association’) the employee’s homosexual

companion is infected with HIV and the employer fears that the employee may also have

become infected, through sexual contact with the companion; (2b) (another example of

4 The dissent criticizes the limitations we established for supplemental briefing,

arguing that our discussion of discriminatory motive and pretext “hinges entirely on

Junior’s failure to accommodate plaintiff’s request for a different shift” (dis. opn., post, at

p. 4), and we therefore should have permitted briefing on the failure to accommodate

issue. As we have stated in the text, we do not decide the accommodation issue. Instead,

we conclude there is a triable issue of fact as to associational disability discrimination.

That issue was fully briefed in respondent’s brief at pages 23-37.

disability by association) one of the employee’s blood relatives has a disabling ailment

that has a genetic component and the employee is likely to develop the disability as well

(maybe the relative is an identical twin); (3) (‘distraction’) the employee is somewhat

inattentive at work because his spouse or child has a disability that requires his attention,

yet not so inattentive that to perform to his employer’s satisfaction he would need an

accommodation, perhaps by being allowed to work shorter hours.” (Larimer, supra, 370

F.3d at p. 700.)5

Rope acknowledged the three categories in which Larimer found a motive for

associational disability discrimination (expense, disability by association, and

distraction). At the same time, Rope observed that Larimer “provided an ‘illustrat[ive],’

rather than an exhaustive, list of the kind of circumstances which might trigger a claim of

associational discrimination.” (Rope, supra, 220 Cal.App.4th at p. 657.) “[A]nd more

importantly, Larimer was decided under the ADA; the provisions of FEHA are broadly

construed and afford employees more protection than the ADA.” (Ibid.; see § 12926.1,

subd. (a).) So while the Rope plaintiff’s alleged facts did not “fit neatly within” one of

Larimer’s three categories, the court concluded the plaintiff had sufficiently pleaded a

prima facie “‘expense’” claim for associational disability discrimination. (Rope, supra, at

p. 657.)

In Rope, the employer hired the plaintiff in late 2010. When hired, he allegedly

informed the employer that he intended to take a leave of absence to donate a kidney to

his sister in February 2011. He requested a paid leave of absence to do so, under a then-

new statute requiring the employer to provide paid leave. Two days before the statute

took effect on January 1, 2011, the employer terminated him on the allegedly pretextual

5 Larimer inserted the “qualification concerning the need for an accommodation”

into category three “because the right to an accommodation, being limited to disabled

employees, does not extend to a nondisabled associate of a disabled person” under the

ADA. (Larimer, supra, 370 F.3d at p. 700.) FEHA and the ADA differ structurally in

the way they create causes of action for associational disability discrimination, as we

noted in part 1.b.

basis of poor performance. (Rope, supra, 220 Cal.App.4th at pp. 642-643, 658.) The

“reasonable inference” from these facts was that the employer “acted preemptively to

avoid an expense stemming from [the plaintiff’s] association with his physically disabled

sister.” (Id. at p. 658.) The plaintiff had therefore met his burden “to show the adverse

employment action occurred under circumstances raising a reasonable inference that the

disability of his relative or associate was a substantial factor motivating the employer’s

decision.” (Ibid.)

We agree with Rope that Larimer provides an illustrative, rather than an

exhaustive, list of the kinds of circumstances in which we might find associational

disability discrimination. The common thread among the Larimer categories is simply

that they are instances in which the “employer has a motive to discriminate against a

nondisabled employee who is merely associated with a disabled person.” (Larimer,

supra, 370 F.3d at p. 702.) As we discuss above, this is an element of a plaintiff’s prima

facie case—that the plaintiff’s association with a disabled person was a substantial

motivating factor for the employer’s adverse employment action. Rope held the alleged

facts in that case could give rise to an inference of such discriminatory motive. Our facts

do not fit neatly within one of the Larimer categories either, but a jury could reasonably

infer the requisite discriminatory motive.

A jury could reasonably find from the evidence that plaintiff’s association with his

disabled son was a substantial motivating factor in Junior’s decision to terminate him,

and, furthermore, that Junior’s stated reason for termination was a pretext. Junior knew

that plaintiff needed to finish his assigned route at a time that permitted him to administer

dialysis to his son. Bermudez told Junior of plaintiff’s needs in this respect and asked

Junior to work with plaintiff when Junior took over as plaintiff’s supervisor. That same

month, plaintiff complained to Bermudez that Junior was scheduling him later than usual,

prompting Bermudez to remind Junior of plaintiff’s need to be home for his son’s

dialysis. Despite knowing plaintiff’s need to be home early, the month after Junior took

over, he scheduled plaintiff for a shift that started at noon, later than plaintiff had ever

started before. Junior did this even though eight other shifts well before noon were

available, and even though DHE’s customer had specifically requested that plaintiff—the

customer’s regular driver—do their 7:00 a.m. deliveries. There was no apparent reason

why Junior could not have scheduled plaintiff for one of these earlier shifts. (The

explanation Junior proffered earlier for not assigning plaintiff the 7:00 a.m. shift was

false. Junior told plaintiff the customer was unhappy with his work and did not want him

making the customer’s deliveries; in fact, the customer’s feedback was quite the opposite,

and plaintiff never had any performance issues at DHE.) Plaintiff told Junior he could

not work the shift and route assigned to him because he had to be home to administer

dialysis to his son, but he asked to return the next day for an assignment. It should have

been apparent plaintiff was not acting in bad faith or simply being insubordinate. Yet

Junior ignored plaintiff’s requests. Instead, he laughed and told plaintiff Bermudez was

not in charge anymore. Even though DHE’s policies allowed for less severe disciplinary

action than termination, for plaintiff’s one-time refusal to work the shift assigned to him,

Junior terminated him.

One reasonable inference from these facts is that Junior, as the person responsible

for scheduling the drivers, wanted to avoid the inconvenience and distraction plaintiff’s

need to care for his disabled son posed to Junior. Thus, Junior engineered a situation in

which plaintiff would refuse to work the shift, giving Junior reason to terminate him. In

other words, plaintiff’s termination for refusal to work the shift was a pretext for Junior’s

desire to be rid of someone whose disabled associate made Junior’s job harder. Just as

the facts in Rope gave rise to the inference that the employer acted preemptively to avoid

the expense of paid leave (Rope, supra, 220 Cal.App.4th at p. 658), these facts may give

rise to the inference that Junior acted proactively to avoid the nuisance plaintiff’s

association with his disabled son would cause Junior in the future.

DHE contends a fact finder could not infer discriminatory motive from Junior’s

actions because it is undisputed that plaintiff had no “set” schedule, he worked a nearly

identical shift the day before his termination with no problems, and the time at which he

administered dialysis to his son was “fully within his discretion.” DHE suggests these

facts show Junior had no reason to know plaintiff would refuse to work the shift assigned

to him. But none of this evidence negated Junior’s demonstrated knowledge that plaintiff

had a disabled son at home constraining his schedule. Plaintiff may not have had a set

schedule in the sense that he did not start or finish his shifts at the exact same time every

day, but he had a typical schedule that allowed him to start around 9:00 or 10:00 a.m. and

finish by 7:00 or 8:00 p.m. Furthermore, to say plaintiff had full discretion as to what

time he could administer dialysis mischaracterizes plaintiff’s responsibility. It is not as

though plaintiff had the freedom to administer dialysis at a time of his choosing. The

way plaintiff described it, the time varied based on his son’s condition. On some days,

his son’s condition would worsen and he would need to be connected to the machine for a

longer period of time. Plaintiff had learned how to check his son’s condition and, on that

basis, determine when he would need dialysis. Plaintiff could work the shift starting at

11:55 a.m. one day before his termination because it did not involve a route to far-away

Oxnard and permitted him to be home in time for dialysis. The facts are that Junior knew

plaintiff had a special need related to his disabled son, and plaintiff told Junior that was

the reason he could not work the shift on April 23, 2013. Plaintiff was able to perform

satisfactorily for over three years with the schedule that previous supervisors provided,

until Junior took over and fired plaintiff shortly after becoming his supervisor.

Viewing the evidence in a light favorable to the nonmoving party and indulging

the reasonable inferences in his favor, as we must, plaintiff has demonstrated a triable

issue of material fact in response to DHE’s showing. (Miller v. Department Corrections

(2005) 36 Cal.4th 446, 470 (Miller) [“We stress that, because this is an appeal from a

grant of summary judgment in favor of defendants, a reviewing court must examine the

evidence de novo and should draw reasonable inferences in favor of the nonmoving

party. [Citation.] We believe the Court of Appeal failed to draw such inferences and

took too narrow a view of the surrounding circumstances.”].)

A relatively recent district court case, Kouromihelakis v. Hartford Fire Ins. Co.

(D. Conn. 2014) 48 F.Supp.3d 175, is instructive. Kouromihelakis denied an employer’s

motion to dismiss the plaintiff’s claim that he was fired because of the known disability

of his father. The plaintiff alleged that he had to regularly assist in the care of his

disabled father, who suffered a debilitating stroke; his job performance was excellent; he

periodically did not report for work by 9:00 a.m.; the employer was aware of his father’s

disability and the reason for the plaintiff’s tardiness; the plaintiff asked for, but was

refused, a change in hours under the employer’s “flex time” policy to accommodate his

duties to his disabled father; and the employer terminated him after he arrived late one

day. (Id. at pp. 178, 180-181.) The court concluded these allegations were sufficient to

plead a plausible “‘distraction’” claim under Larimer, and, viewed in a light most

favorable to the plaintiff, supported “a reasonable inference that the defendant terminated

the plaintiff’s employment based on a belief about future absences.” (Kouromihelakis, at

pp. 180-181.) Like Kouromihelakis, the evidence here gives rise to the reasonable

inference that Junior terminated plaintiff based on a belief that plaintiff would want

earlier shifts in the future. Neither Kouromihelakis nor this case fit neatly within the

distraction paradigm set forth in Larimer, but a neat fit is not required.

The cases on which DHE principally relies do not advance its case. In Ennis v.

National Assn. of Bus. and Educ. Radio, Inc. (4th Cir. 1995) 53 F.3d 55 (Ennis), the court

affirmed summary judgment for the employer because the plaintiff could not establish at

least two elements of her prima facie case: (1) “at the time of the discharge, she was

performing her job at a level that met her employer’s legitimate expectations”; and (2)

“her discharge occurred under circumstances that raise a reasonable inference of unlawful

discrimination.” (Id. at p. 58.) She could not show she was performing her job

adequately because the employer had extensively documented numerous instances of

poor job performance over the course of several years. (Id. at pp. 61-62.) Her employer

terminated her for poor job performance. (Id. at p. 57.) She could not show her

association with her HIV-positive minor son instead motivated her termination,

especially in light of the strong evidence that she had performed poorly for years. (Id. at

p. 62.) She had no facts credibly giving rise to an inference of unlawful discrimination.

(Ibid.) Here, by contrast, there was no issue with plaintiff’s performance, and thus no

concomitant showing that he was legitimately terminated. It was undisputed that he was

performing satisfactorily during his entire time with DHE. His request for an earlier

schedule only became an issue when Junior took over, and his onetime refusal to work a

shift does not equate with the Ennis plaintiff’s poor performance over several years.

Magnus v. St. Mark United Methodist Church (7th Cir. 2012) 688 F.3d 331, 339,

is also distinguishable. In Magnus, the plaintiff asserted her employer terminated her

because of her association with her mentally disabled daughter, emphasizing that the

termination came two weeks after she received a merit-based raise, and one day after she

arrived at work an hour late due to a medical situation with her daughter. (Id. at p. 333.)

But the undisputed evidence showed the raise was an across-the-board increase given to

all full-time employees regardless of merit, and the employer had decided to terminate

her the weekend before she arrived late to work. (Id. at pp. 333-334, 338-339.) The

plaintiff could not rebut the employer’s legitimate, nondiscriminatory reasons for its

actions. The employer based the termination on numerous documented performance

deficiencies and her refusal to work weekends (because of the need to care for her

daughter). (Id. at pp. 335-336, 338.) The court observed that the plaintiff’s true

complaint was that the church failed to accommodate her need to care for her disabled

daughter because it mandated that she work weekends—but the ADA did not require

employers to reasonably accommodate for an employee’s association with a disabled

person. (Magnus, at pp. 334, 339.) FEHA, however, differs structurally from the ADA

when defining associational disability causes of action. Further, like in Ennis, the many

performance deficiencies in Magnus also justified the plaintiff’s termination, not just a

one-time refusal to work that appears to have been engineered.

In sum, DHE failed to show it was entitled to summary adjudication of the

associational disability discrimination cause of action. Plaintiff’s evidence gives rise to

reasonable inferences of discriminatory motive and pretext.

2. Retaliation

The retaliation provision of FEHA forbids an employer “to discharge, expel, or

otherwise discriminate against any person because the person has opposed any practices

forbidden under” FEHA. (§ 12940, subd. (h).) “Employees may establish a prima facie

case of unlawful retaliation by showing that (1) they engaged in activities protected by

the FEHA, (2) their employers subsequently took adverse employment action against

them, and (3) there was a causal connection between the protected activity and the

adverse employment action.” (Miller, supra, 36 Cal.4th at p. 472.)

DHE asserts plaintiff cannot establish retaliation because he lacks evidence of a

protected activity, and even if he engaged in protected activity, he cannot show a causal

link between that activity and the adverse employment action. We are not persuaded that

DHE is entitled to summary adjudication on these grounds.

“Retaliation claims are inherently fact-specific” (Yanowitz v. L’Oreal USA, Inc.

(2005) 36 Cal.4th 1028, 1052 (Yanowitz)), and “protected conduct can take many forms”

(id. at p. 1042). “Standing alone, an employee’s unarticulated belief that an employer is

engaging in discrimination will not suffice to establish protected conduct for the purposes

of establishing a prima facie case of retaliation, where there is no evidence the employer

knew that the employee’s opposition was based upon a reasonable belief that the

employer was engaging in discrimination.” (Id. at p. 1046.) “[C]omplaints about

personal grievances or vague or conclusory remarks that fail to put an employer on notice

as to what conduct it should investigate will not suffice to establish protected conduct.”

(Id. at p. 1047.)

But employees need not explicitly and directly inform their employer that they

believe the employer’s conduct was discriminatory or otherwise forbidden by FEHA.

(Yanowitz, supra, 36 Cal.4th at p. 1046.) “‘[A]n employee is not required to use legal

terms or buzzwords when opposing discrimination. The court will find opposing activity

if the employee’s comments, when read in their totality, oppose discrimination.’” (Id. at

p. 1047.) “We do not believe employees should be required to elaborate to their

employer on the legal theory underlying the complaints they are making, in order to be

protected by the FEHA.” (Miller, supra, 36 Cal.4th at p. 474.) “[C]ourts should

recognize that plaintiffs have limited legal knowledge.” (Ibid., citing Moyo v. Gomez

(9th Cir. 1994) 40 F.3d 982, 985.) FEHA does not protect “‘only the impudent or

articulate. The relevant question . . . is not whether a formal accusation of discrimination

is made but whether the employee’s communications to the employer sufficiently convey

the employee’s reasonable concerns that the employer has acted or is acting in an

unlawful discriminatory manner.’” (Yanowitz, supra, at p. 1047.) Further, FEHA need

not actually prohibit the conduct of which the employee complains. (Miller, supra, 36

Cal.4th at p. 473.) All that is required is an employee’s good faith belief that the conduct

was unlawful. (Ibid.) Employees’ belief that they are complaining about prohibited

conduct “may be inferred from the nature and content of their repeated complaints. The

issue of a plaintiff’s subjective, good faith belief involves questions of credibility and

ordinarily cannot be resolved on summary judgment.” (Id. at p. 476.)

Two California Supreme Court cases in particular illustrate the principle that

employees need not complain with the clarity and precision of lawyers to engage in

protected conduct: Miller and Yanowitz. In Miller, the plaintiffs asserted they

complained about improper sexual relationships between a supervisor and several of his

subordinates, favoritism accorded to those subordinates, and subsequent hostile or

harassing treatment by those subordinates after the plaintiffs expressed their complaints.

(Miller, supra, 36 Cal.4th at pp. 452, 472-473.) The Court of Appeal concluded that,

although the plaintiffs opposed the supervisor’s conduct, “they had not expressed

opposition to sex discrimination or sexual harassment. As the court understood the

record, ‘[p]laintiffs were not complaining about sexual harassment but unfairness. This is

not protected activity under the FEHA.’” (Id. at p. 474.) The Court of Appeal concluded

the defendants were entitled to summary judgment on the plaintiffs’ retaliation claim.

(Id. at p. 460.) Our Supreme Court reversed, holding that although the plaintiffs “may

not have recited the specific words ‘sexual discrimination’ or ‘sexual harassment,’ the

nature of their complaint certainly fell within the general purview of FEHA, especially

when we recall that this case is before us on review of a grant of summary judgment.”

(Id. at p. 475.)

In Yanowitz, the plaintiff’s manager instructed her to terminate a dark-skinned

female sales associate at a retail store because he did not consider the sales associate to be

sufficiently physically attractive. (Yanowitz, supra, 36 Cal.4th at p. 1038.) In response,

the plaintiff asked the manager for an adequate justification for terminating the sales

associate. (Ibid.) On several subsequent occasions, the manager asked the plaintiff if she

had fired the sales associate, and the plaintiff each time asked for adequate justification.

(Ibid.) The plaintiff ultimately refused to terminate the sales associate. She never

explicitly told the manager that she believed his order was discriminatory. (Ibid.) Our

Supreme Court held “a trier of fact properly could find that [the manager] knew that [the

plaintiff’s] refusal to comply with his order to fire the sales associate was based on [the

plaintiff’s] belief that [the manager’s] order constituted discrimination on the basis of

sex—that is, the application of a different standard to a female employee than that

applied to male employees—and that her opposition to the directive thus was not merely

an unexplained insubordinate act bearing no relation to suspected discrimination.

[Citation.] A trier of fact properly could find that by repeatedly refusing to implement

the directive unless [the manager] provided ‘adequate justification,’ [the plaintiff]

sufficiently conveyed to [the manager] that she considered the order to be discriminatory

and put him on notice that he should reconsider the order because of its apparent

discriminatory nature.” (Id. at p. 1048.) Thus, the plaintiff’s evidence permitted a

reasonable trier of fact to find that she engaged in protected activity. (Ibid.)

Likewise, here, the evidence would permit a reasonable trier of fact to find

protected activity. Plaintiff complained to Bermudez in March 2013 that Junior had

changed his hours so that he was having problems tending to his son. Bermudez

communicated the complaint about the change in hours to Junior. Junior already knew

that plaintiff sought earlier hours because of his obligation to care for his disabled son—

Bermudez told Junior this when Junior took over. When Junior assigned plaintiff a later

shift on April 22, 2013, the day before his termination, plaintiff worked it, but

complained to Junior that he had “always had help from everyone except you,” and

pleaded with Junior “to have my job like always.” The following day, plaintiff expressed

opposition to the shift Junior assigned him because he could not return in time to care for

his son, and plaintiff refused to work it. Junior terminated him directly.

The trier of fact could reasonably find that plaintiff’s repeated complaints to

Bermudez and Junior about the change in his scheduling, when both knew that he needed

earlier hours to administer dialysis to his son, constituted opposition to the denial of an

accommodation in his schedule. Put otherwise, plaintiff showed opposition to a practice

he believed was unlawful (§ 12940, subd. (h)). Tied as the complaints were to his son’s

disability, the trier of fact also could find that Junior had reason to know plaintiff’s

complaints were not just an unexplained insubordinate act bearing no relation to

perceived unlawful practices. Rather, one hearing plaintiff’s complaints could infer that

plaintiff believed the denial of an accommodated schedule to care for his son was

unlawful. He need not have used the terms “unlawful” or “reasonable accommodation”

themselves. Even assuming FEHA did not actually require DHE to reasonably

accommodate plaintiff based on his son’s disability, plaintiff’s good faith belief that DHE

was acting unlawfully was sufficient. (Yanowitz, supra, 36 Cal.4th at p. 1043.)

The evidence would also permit a trier of fact to infer a causal link between

plaintiff’s complaints and his termination. Proximity in time between the employee’s

protected activity and the adverse employment action satisfies the employee’s prima facie

burden. (McRae v. Department of Corrections & Rehabilitation (2006) 142 Cal.App.4th

377, 388.) Plaintiff’s termination came the month after his first complaint and on the

heels of his last two complaints. To the extent DHE argues it has offered evidence of a

legitimate, nondiscriminatory reason to terminate plaintiff (his refusal to work), we have

explained in part 1 that a trier of fact could find this reason pretextual.

DHE additionally maintains that, at best, plaintiff’s remarks constituted a request

for reasonable accommodation, not a complaint that Junior denied him a reasonable

accommodation he previously received. DHE cites Rope for the proposition that “a mere

request—or even repeated requests—for an accommodation, without more,” do not

constitute protected activity. (Rope, supra, 220 Cal.App.4th at p. 652; accord Nealy v.

City of Santa Monica, supra, 234 Cal.App.4th at p. 381 [relying on Rope to hold that

“protected activity does not include a mere request for reasonable accommodation”].)

We note that Rope is no longer good law on that point. On July 16, 2015, the

Governor approved a bill superseding Rope on this issue (Assem. Bill No. 987 (2015-

2016 Reg. Sess.)). This amendment to section 12940, effective January 1, 2016, makes it

unlawful for an employer to retaliate or otherwise discriminate against a person for

requesting a reasonable accommodation, regardless of whether the employer granted the

request. (§ 12940, subd. (m)(2).) The Legislature’s findings in enacting the amendment

included this: “Notwithstanding any interpretation of this issue in Rope . . . , the

Legislature intends (1) to make clear that a request for reasonable accommodation on the

basis of religion or disability is a protected activity, and (2) by enacting paragraph (2) of

subdivision (m) . . . , to provide protection against retaliation when an individual makes a

request for reasonable accommodation under these sections, regardless of whether the

request was granted. With the exception of its holding on this issue, Rope . . . remains

good law.” (Stats. 2015, ch. 122, § 1, subd. (d), approved by Governor, July 16, 2015.)

DHE contends Assembly Bill No. 987 (2015-2016 Reg. Sess.) does not apply

retroactively to this case to make a request for accommodation protected activity.6 “A

statute has retrospective effect when it substantially changes the legal consequences of

past events.” (Western Security Bank v. Superior Court (1997) 15 Cal.4th 232, 243.) To

decide whether an amendment applies to actions that occurred before its enactment, the

court asks as a threshold matter whether the amendment merely clarified existing law or

changed existing law. (McClung v. Employment Development Dept. (2004) 34 Cal.4th

467, 471.) “[A] statute that merely clarifies, rather than changes, existing law does not

operate retrospectively even if applied to transactions predating its enactment” “because

the true meaning of the statute” was always the same. (Western Security Bank v.

Superior Court, supra, at p. 243.) “In that event, . . . liability would have existed at the

time of the actions, and the amendment would not have changed anything.” (McClung v.

Employment Development Dept., supra, at p. 472.) But if the amendment changed the

6 Plaintiff raised Assembly Bill No. 987 (2015-2016 Reg. Sess.) in his reply brief,

and the bill became effective after briefing in this matter was complete. Our original

opinion in this matter discussed and relied on Assembly Bill No. 987. DHE filed a

petition for rehearing arguing in part that we should permit supplemental briefing on

whether Assembly Bill No. 987 operates retroactively. We granted the petition in this

respect and permitted supplemental briefing, but as we discuss, we ultimately need not

decide the retroactivity issue.

law and imposed liability for earlier actions, the court must decide if the change applies

retroactively. (Ibid.)

DHE argues Assembly Bill No. 987 (2015-2016 Reg. Sess.) effected a change in

the law, which change applies prospectively only; therefore, Rope governs and precludes

plaintiff’s retaliation cause of action. Plaintiff, on the other hand, argues Assembly Bill

No. 987 merely clarified existing law such that Assembly Bill No. 987 applies to acts

predating its enactment. We need not decide whether Assembly Bill No. 987 applies in

this case.7 Even assuming it achieved a change in the law that does not apply

retroactively, and thus Rope is not superseded for our purposes, Rope does not dictate that

we adjudicate the retaliation cause of action in DHE’s favor.

As we have explained, Rope held that mere requests for accommodation without

anything more did not represent protected activity. (Rope, supra, 220 Cal.App.4th at

p. 652.) Rope emphasized that protected activity consists of “oppos[ing] any practices

forbidden” by FEHA (§ 12940, subd. (h)), while mere requests for an accommodation do

not “demonstrate some degree of opposition to or protest of the employer’s conduct.”

(Rope, supra, at pp. 652-653; accord Nealy v. City of Santa Monica, supra, 234

Cal.App.4th at p. 381 [request for an accommodation and engaging in the interactive

process with employer did not amount to “‘oppos[ing] any practices forbidden under’

FEHA”].) Plaintiff here did more than simply request an accommodation. A reasonable

juror could find that his repeated complaints about the sudden changes to his schedule

represented “some degree of opposition” to DHE’s failure to continue to provide that

schedule. In other words, we disagree with DHE’s characterization that, at best,

plaintiff’s remarks constituted a mere request for reasonable accommodation.

7 Our colleagues in the Fourth District recently considered these issues in Moore v.

Regents of the University of California (2016) 248 Cal.App.4th 216.) They held that

Assembly Bill No. 987 (2015-2016 Reg. Sess.) represented a change in the law, not a

clarification, and Assembly Bill No. 987 did not operate retroactively. (Moore, at

pp. 246-247.)

3. Failure to Prevent Discrimination and Wrongful Termination in Violation of

Public Policy

In DHE’s moving papers, it stated one argument against the causes of action for

failure to prevent discrimination and wrongful termination—that they failed as a matter

of law when no discrimination or other unlawful conduct in violation of public policy

occurred. On appeal, DHE argues the same. Given that DHE is not entitled to summary

adjudication on the discrimination and retaliation causes of action, it has not shown it is

entitled to summary adjudication on failure to prevent discrimination and wrongful

termination.

4. Costs Appeal

The court awarded DHE costs as the prevailing party in the action. Plaintiff

appealed from the court’s order denying his motion to tax costs. Because we are

reversing the judgment, and DHE is no longer the prevailing party, DHE is no longer

entitled to costs. The order denying the motion to tax costs is also reversed.

DISPOSITION

The judgment in B261165 is reversed. On appeal, plaintiff has challenged the

court’s ruling on only four of his eight causes of action. The court shall enter an order

granting DHE’s motion for summary adjudication on the causes of action plaintiff has

abandoned: (1) failure to provide reasonable accommodation, (2) failure to engage in

good faith interactive process, (3) hostile work environment, and (4) failure to prevent

harassment. The court’s order shall deny summary adjudication on the remaining causes

of action: (1) disability discrimination, (2) failure to prevent discrimination, (3)

retaliation, and (4) wrongful termination in violation of public policy. The order denying

the motion to tax costs in B262524 is reversed. Plaintiff shall recover his costs on appeal.

FLIER, J.

I CONCUR:

RUBIN, Acting P. J.

Castro-Ramirez v. Dependable Highway Express, Inc.

B261165; B262524

Grimes, J., Dissenting.

Respectfully, I dissent.

The majority in the original published opinion in this appeal, filed April 4, 2016,

held that FEHA creates a duty according to the plain language of the Act to provide

reasonable accommodations to an applicant or employee who is associated with a

disabled person. The present majority opinion has retreated from that holding. My

colleagues state they do not decide whether FEHA establishes a separate duty to

reasonably accommodate employees who associate with a disabled person. (Maj. opn.

ante, at p. 9.) The majority neither acknowledges its prior holding nor explains the

retreat from it. The majority does, however, “find accommodation relevant as to

plaintiff’s discrimination cause of action.” (Maj. opn. ante, at p. 10.) And, while

repeating that it does not decide the point, the majority observes that Government Code

section 12940, subdivision (m)1 – making it unlawful to fail to reasonably accommodate

the known physical disability of an applicant or employee – “may reasonably be

interpreted to require accommodation based on the employee’s association with a

physically disabled person.” (Maj. opn. ante, at pp. 10-11.)

While ordinarily I would not discuss an undecided issue, I am compelled to do so

here. For while the majority purports not to decide whether FEHA requires an employer

to reasonably accommodate employees who associate with a disabled person, in my view

the majority in effect has done just that. I disagree with the majority’s approach for four

reasons.

First, despite the grant of rehearing in this case, the majority explicitly refused to

allow the parties to brief the critical issue of whether and how accommodation is relevant

to plaintiff’s discrimination cause of action. Second, I cannot agree with the majority’s

proposition that the ADA and the federal cases decided under it are “easily distinguished”

1 Further statutory references are to the Government Code.

and that we should “part ways with federal case authority” because the statutory language

in the ADA is not parallel with FEHA. (Maj. opn. ante, at p. 12.) On the contrary, I see

no reason to construe FEHA as departing from the ADA on this issue. Third, unless there

is a duty to adjust the work schedule of a nondisabled employee to accommodate the

needs of a disabled associate, there is no evidence from which to infer the defendant

employer here discriminated against plaintiff when it assigned a shift that did not meet

those needs, and fired plaintiff for refusing the assignment. Fourth, plaintiff did not

demonstrate a material factual dispute whether he engaged in a protected activity to

support a retaliation claim, because under the law in effect during his employment with

defendant, repeated requests for an accommodation, without more, did not constitute

protected activity. In short, the conduct at the heart of plaintiff’s claim is defendant’s

refusal to assign a shift that would allow plaintiff to tend to his disabled son. No

authority has held an employer must do so, and nor should we.

1. The Majority Did Not Comport With Government Code Section 68081 In

Partially Denying Defendant's Petition For Rehearing.

In my earlier dissent, I pointed out that plaintiff expressly told us in his briefs he

had abandoned the theory that an employer has a duty to accommodate a nondisabled

employee who is associated with a disabled person. The majority states that plaintiff

abandoned the reasonable accommodation cause of action. (Maj. opn. ante, at p. 9.) Not

so; plaintiff did not merely abandon one cause of action. He expressly abandoned the

premise of a duty to accommodate a disabled associate. Plaintiff repeatedly told us “this

is not an accommodation case.” Plaintiff asserted the issue “whether reasonable

accommodations are available to the associates of the disabled . . . is not before this

Court.”

Instead, plaintiff asserted that even if he was not entitled to an accommodation

under FEHA, he was “entitled to an intermittent medical leave of absence to care for his

disabled son pursuant to the CFRA [California Family Rights Act (§ 12945.2)], at least

on the day he was terminated.” Plaintiff stated: “The fact that [defendant] may not have

discriminated because it was not obligated to affirmatively act to protect [plaintiff’s]

employment under one set of laws (the reasonable accommodation provision of the

FEHA) does not mean it did not discriminate when another set of laws (the child care

leave provision of the CFRA) obligated [defendant] to affirmatively act to protect his

employment. In effect, the CFRA forbade [defendant] from terminating [plaintiff] on

April 23, 2013 after he voiced his inability to work his schedule for the day because of

his child care obligations to his disabled son.”

Undeterred by the absence of briefing on an issue that no party proposed, the

majority held in the opinion filed April 4, 2016, that FEHA creates a duty to

accommodate a nondisabled employee who is associated with a disabled person.

Thereafter, defendant petitioned for rehearing on three grounds, the first two of

which are these: “First, the Court based its decision to reverse the dismissal of Plaintiff’s

associational disability discrimination claim on its determination that [FEHA] requires

employers to accommodate non-disabled employees with disabled relatives. However,

Plaintiff did not appeal the dismissal of his failure to accommodate claim under FEHA

and expressly abandoned this theory of liability on appeal. Thus, neither party briefed the

issue. [¶] Second, the Court based its decision to reverse the dismissal of Plaintiff’s

retaliation claim in part on its determination that Plaintiff engaged in protected conduct

by requesting an accommodation. In coming to this conclusion, however, the Court

relied on a change in the law, the legislature’s enactment of AB987, which occurred

during the parties’ briefing process. AB987 amended FEHA to state that requests for

accommodation are protected activity. However, the Court never requested supplemental

briefing on the issue of whether AB987 operates retroactively, which [defendant]

contends it does not. Thus, [defendant] never had an opportunity to brief this issue, as

Plaintiff raised it for the first time in his reply brief.”

The majority issued an order on April 27, 2016, granting in part and denying in

part the petition for rehearing. The order granted the parties permission to brief only the

second issue, “whether the amendment to Government Code section 12940,

subdivision (m), effective January 1, 2016 [(Assem. Bill No. 987)], applies in this case.”

Assembly Bill No. 987 went into effect more than two years after plaintiff’s termination

of employment with defendant. After the parties submitted their briefs, Moore v. Regents

of the University of California (2016) 248 Cal.App.4th 216 (Moore) was decided. Moore

held that Assembly Bill No. 987 represented a change in the law, not a clarification, and

Assembly Bill No. 987 did not operate retroactively. (Moore, at p. 247.) The majority

now finds it need not decide this issue.

Likewise, the majority now says it does not decide whether FEHA establishes a

separate duty to reasonably accommodate employees who associate with a disabled

person. However, the majority finds accommodation relevant to plaintiff’s

discrimination cause of action. (Maj. opn. ante, at pp. 9, 10.) The majority reasons that

“when section 12940, subdivision (m) requires employers to reasonably accommodate

‘the known physical . . . disability of an applicant or employee,’ read in conjunction with

other relevant provisions, subdivision (m) may reasonably be interpreted to require

accommodation based on the employee’s association with a physically disabled person.

Again, given plaintiff’s concession, we do not decide this point. We only observe that

the accommodation issue is not settled and that it appears significantly intertwined with

the statutory prohibition against disability discrimination . . . .” (Maj. opn. ante, at

pp. 10-11.)

The majority’s discussion of what it perceives as triable issues of material fact as

to discriminatory motive and pretext (maj. opn. ante, at pp. 15-17) hinges entirely on

Junior’s failure to accommodate plaintiff’s request for a different shift so he could care

for his disabled son.

Defendant’s petition for rehearing sought permission to brief the accommodation

issue that the majority characterizes as “not settled.” As set forth above, defendant’s first

basis for seeking rehearing was that “the Court based its decision to reverse the dismissal

of Plaintiff’s associational disability discrimination claim on its determination that

[FEHA] requires employers to accommodate non-disabled employees with disabled

relatives.” The majority opinion does not comport with section 68081 because it rests on

an issue that no party proposed and that was never briefed, even after defendant timely

petitioned for rehearing to brief that issue. Section 68081 provides that before issuing a

decision, “based upon an issue which was not proposed or briefed by any party to the

proceeding, the court shall afford the parties an opportunity to present their views on the

matter through supplemental briefing.” And “[i]f the court fails to afford that

opportunity, a rehearing shall be ordered upon timely petition . . . .” (Ibid.)

Ten years after section 68081’s enactment, the Court of Appeal expressed the

“significant principle” that “judges, including appellate judges, are required to follow the

law. In this case, the Appellate Department of the Los Angeles Superior Court decided a

case on a point not raised by the parties, and without notice to the parties that it might do

so.” (California Casualty Ins. Co. v. Appellate Department (1996) 46 Cal.App.4th 1145,

1147 (California Casualty).)

In California Casualty, the defense in a court trial elicited an expert opinion over

plaintiff’s objection. On appeal, the plaintiff argued the opinion was inadmissible and the

error was prejudicial. The defendant responded there was no abuse of discretion and no

prejudice. The Appellate Department scrutinized the record to determine if the expert

opinion was admissible and in doing so also scrutinized the plaintiff’s objection,

concluding it was inadequate to preserve the issue for appellate review – an issue no

party had asserted or briefed. The Court of Appeal found it was error to decide the case

on that ground without warning the parties the court was considering that ground, and

giving them an opportunity to brief it. (California Casualty, supra, 46 Cal.App.4th at

pp. 1148-1149.)

I believe the majority had a duty to permit briefing on the issue of whether and

how accommodation is “relevant to” and “significantly intertwined” with plaintiff’s

discrimination cause of action before it decided an “unsettled” issue which was not

proposed or briefed by any party. (Adoption of Alexander S. (1988) 44 Cal.3d 857, 864-

865 [in denying a party’s request for an opportunity to submit supplemental briefing on a

point first raised by the Court of Appeal in oral argument, the Court of Appeal did not

comport with section 68081; Court of Appeal had a duty “upon timely request to allow

supplemental briefing before it renders a decision which was not proposed or briefed by

any party”].)

2. No Sound Basis Exists For Construing FEHA As Departing From

Federal Case Law Governing Associational Disability Discrimination

Under The ADA.

FEHA prohibits disability discrimination. It is unlawful for an employer,

“because of the . . . physical disability . . . of any person, to . . . discharge the person from

employment . . . or to discriminate against the person . . . in terms, conditions, or

privileges of employment.” (§ 12940, subd. (a).) FEHA also forbids discrimination

based on a person’s association with a person with a physical disability. Section 12926

provides in pertinent part that “ ‘physical disability, [and other protected characteristics]’

includes a perception that . . . the person is associated with a person who has, or is

perceived to have, any of those characteristics.” (§ 12926, subd. (o).)

There is very little California authority on discrimination against a person

associated with a disabled person. The only authority expressly involving a claim of

associational disability discrimination is Rope v. Auto-Chlor System of Washington, Inc.

(2013) 220 Cal.App.4th 635 (Rope). In Rope, the court concluded the plaintiff pleaded

facts sufficient to support a claim for association-based disability discrimination. (Id. at

p. 642.) The plaintiff alleged he informed his employer at the time he was hired in

September 2010 that he intended to donate a kidney to his sister in February 2011. He

requested a paid leave of absence to recuperate from the surgery, under a then-new

statute requiring the employer to provide paid leave, effective as of January 1, 2011.

Two days before the statute took effect, the employer terminated the plaintiff’s

employment on the allegedly pretextual basis of poor performance. (Id. at pp. 642-643.)

Rope observed that the “reasonable inference is that [the employer] acted

preemptively to avoid an expense stemming from [the plaintiff’s] association with his

physically disabled sister.” (Rope, supra, 220 Cal.App.4th at p. 658.) Rope relied on

Judge Posner’s opinion in Larimer v. International Business Machines (7th Cir. 2004)

370 F.3d 698 (Larimer), describing Larimer as “the seminal authority on disability-based

associational discrimination under the ADA . . . .” (Rope, at p. 656.)

In Larimer, the court identified three circumstances in which an employer might

have a motive to discriminate against an employee who is associated with a disabled

person, and concluded these types of situation were within the intended scope of the

“rarely litigated” association provision of the ADA. (Larimer, supra, 370 F.3d at p. 700.)

The court denominated the categories as “expense,” “disability by association,” and

“distraction.” (Ibid.)

Larimer explained: “[The three types] can be illustrated as follows: an employee

is fired (or suffers some other adverse personnel action) because (1) (‘expense’) his

spouse has a disability that is costly to the employer because the spouse is covered by the