Galvan v. Costco Wholesale Corp. CA2/4

Filed 9/12/14 Galvan v. Costco Wholesale Corp. CA2/4
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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

GERARDO GALVAN, B250368
(Los Angeles County
Plaintiff and Appellant, Super. Ct. No. BC484314)

v.

COSTCO WHOLESALE
CORPORATION et al.,

Defendants and Respondents.

APPEAL from a judgment of the Superior Court of Los Angeles County,
Elizabeth Allen White, Judge. Affirmed.
Avila & Shaddow, Tali Shaddow and Mark Steven Avila; Law Offices of
Ellen Lake and Ellen Lake for Plaintiff and Appellant.
Seyfarth Shaw, Laura W. Shelby and Rocio Herrera for Defendants and
Respondents.
 In the underlying action, the trial court granted summary judgment against
appellant Gerardo Galvan in his action against his former employer, respondent
Costco Wholesale Corporation (Costco). We affirm.

RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
There are no material disputes about the following facts: In 1999, Costco
hired Galvan as a part-time employee. In 2008, he held a senior managerial
position at a Costco store in Canoga Park. In August 2010, after receiving
“counseling notice[s]” for tardiness, he was demoted to a junior managerial
position and transferred to a warehouse in Simi Valley. Soon afterward, Galvan
requested leave under the Family Medical Leave Act (29 U.S.C.A. § 2601 et seq.)
(FMLA), which was granted. In March 2011, he returned to work at the Simi
Valley warehouse. In May 2011, after receiving counseling notices for tardiness
and failure to perform his duties, he was terminated.
In May 2012, Galvan initiated the underlying action. His complaint asserted
claims against Costco under the California Fair Employment and Housing Act
([FEHA]; Gov. Code, § 12900 et seq.) for discrimination based on disability,
failure to accommodate a disability, failure to engage in an interactive process
regarding a disability, failure to prevent discrimination, and retaliation; in addition,
it asserted claims for wrongful termination in violation of public policy,
defamation, and intentional infliction of emotional distress, and sought punitive
damages. The complaint alleged, inter alia, that in mid-2010, Galvan began
suffering from anxiety and panic, that he received medical treatment and
medication for that disability during and after his leave, and that Costco engaged in
misconduct regarding his disability.
In March 2013, Costco filed a motion for summary judgment or adjudication
on Galvan’s complaint. In a 15-page order, the trial court determined that

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summary adjudication was proper on all of his claims and his request for punitive
damages, and granted the motion for summary judgment. On June 28, 2013, the
court entered judgment in Costco’s favor and against Galvan. This appeal
followed.

DISCUSSION
Galvan challenges the grant of summary adjudication with respect to several
of his claims and his request for punitive damages. For the reasons discussed
below, we reject his contentions.

A. Standard of Review
“A summary adjudication motion is subject to the same rules and procedures
as a summary judgment motion. Both are reviewed de novo. [Citations.]”
(Lunardi v. Great-West Life Assurance Co. (1995) 37 Cal.App.4th 807, 819.) “A
defendant is entitled to summary judgment if the record establishes as a matter of
law that none of the plaintiff’s asserted causes of action can prevail. [Citation.]”
(Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107.) Generally, “the party
moving for summary judgment bears an initial burden of production to make a
prima facie showing of the nonexistence of any triable issue of material fact; if he
carries his burden of production, he causes a shift, and the opposing party is then
subjected to a burden of production of his own to make a prima facie showing of
the existence of a triable issue of material fact.” (Aguilar v. Atlantic Richfield Co.
(2001) 25 Cal.4th 826, 850.) In moving for summary judgment, “all that the
defendant need do is to show that the plaintiff cannot establish at least one element
of the cause of action -- for example, that the plaintiff cannot prove element X.”
(Id. at p. 853.)

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 Although we independently assess the grant of summary judgment, our
inquiry is subject to several constraints. Under the summary judgment statute, we
examine the evidence submitted in connection with the summary judgment motion,
with the exception of evidence to which objections have been appropriately
sustained. (Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 711;
Code Civ. Proc., § 437c, subd. (c).) Furthermore, our review is governed by a
fundamental principle of appellate procedure, namely, that “‘[a] judgment or order
of the lower court is presumed correct,’” and thus, “‘error must be affirmatively
shown.’” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564, italics omitted,
quoting Cal. Procedure (1954) Appeal, § 79, pp. 2238-2239.) Under this principle,
Galvan bears the burden of establishing error on appeal, even though Costco had
the burden of proving its right to summary judgment before the trial court. (Frank
and Freedus v. Allstate Ins. Co. (1996) 45 Cal.App.4th 461, 474.) For this reason,
our review is limited to contentions adequately raised in Galvan’s briefs.
(Christoff v. Union Pacific Railroad Co. (2005) 134 Cal.App.4th 118, 125-126.)
The two constraints narrow the scope of our inquiry. Here, the trial court
denied Galvan’s request that it take judicial notice of several publications
regarding mental illness and the Americans With Disabilities Act of 1990 (ADA)
(42 U.S.C. § 12101 et seq.). Because Galvan does not challenge that ruling on
appeal, he has forfeited any contention of error regarding it.
Galvan has also forfeited any contention that summary judgment was
improper with respect to his claims, to the extent he fails to challenge the ruling
regarding those claims. As Galvan does not discuss his FEHA claim for retaliation
or his claims for defamation and infliction of emotional distress, we exclude them
from our review. (Wall Street Network, Ltd. v. New York Times Co. (2008) 164
Cal.App.4th 1171, 1177; Yu v. Signet Bank/Virginia (1999) 69 Cal.App.4th 1377,
1398; Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6.)

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 B. FEHA
Galvan’s principal claims arise under FEHA. Generally, FEHA bars
employers from engaging in discrimination that targets an employee on the basis of
a disability or medical condition. Under Government Code section 12940,
subdivision (a)(1), it is an unlawful employment practice for an employer to
discriminate against a person “because of” a physical or mental disability or a
1
medical condition. Nonetheless, FEHA does not prohibit an employee’s discharge
when, “because of” his or her disability or medical condition, the employee “is
unable to perform his or her essential duties even with reasonable
accommodations, or cannot perform those duties in a manner that would not
endanger his or her health or safety or the health or safety of others even with
reasonable accommodations.” (§ 12940, subds. (a)(1), (a)(2).)
FEHA also prohibits employer misconduct related to the provision of
reasonable accommodations. Under section 12940, subdivision (m), it is an
unlawful employment practice for an employer to “fail to make reasonable
accommodation for the known physical or mental disability of an . . . employee.”
However, the employer is not required to make an accommodation “that is
demonstrated by the employer . . . to produce undue hardship . . . to its operation.”
(§ 12940, subd. (m).)
Subdivision (n) of section 12940 imposes an additional and independent
duty on employers to engage in an “interactive process” regarding reasonable
accommodations. (Scotch v. Art Institute of California -- Orange County, Inc.
(2009) 173 Cal.App.4th 986, 1003 (Scotch); Wilson v. County of Orange (2009)

1
All further statutory citations are to the Government Code, unless otherwise
indicated.

5
169 Cal.App.4th 1185, 1193 (Wilson); Wysinger v. Automobile Club of Southern
California (2007) 157 Cal.App.4th 413, 424 (Wysinger).) That provision
establishes that it is an unlawful practice for an employer “to fail to engage in a
timely, good faith, interactive process with the employee . . . to determine effective
reasonable accommodations, if any, in response to a request for reasonable
accommodation by an employee . . . with a known physical or mental disability or
known medical condition.”
Also pertinent here is subdivision (k) of section 12940, which obliges
employers to prevent discrimination against employees with a disability or medical
condition. Under that provision, it is an unlawful practice for an employer “to fail
to take all reasonable steps necessary to prevent discrimination and harassment
2
from occurring.”

C. Underlying Proceedings
1. Complaint
In assessing the grant of summary judgment, we look first at Galvan’s
allegations in his complaint, which frame the issues pertinent to a motion for
summary judgment. (Bostrom v. County of San Bernardino (1995) 35 Cal.App.4th
1654, 1662.) With respect to the FEHA claims, the complaint alleges that in mid-
2010, Galvan began to suffer from anxiety and panic episodes. Although Galvan’s
supervisors were aware of Galvan’s “compromised mental state,” they took no

2
Although the disability-related provisions of FEHA differ in some respects from
those found in the ADA, when appropriate, California courts interpreting FEHA seek
guidance from federal decisions construing the ADA. (Nadaf-Rahrov v. Neiman Marcus
Group, Inc. (2008) 166 Cal.App.4th 952, 971-981 (Nadaf-Rahrov); Hastings v.
Department of Corrections (2003) 110 Cal.App.4th 963, 973, fn. 12.)

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action to make any reasonable accommodation and instead demoted and
transferred him, which exacerbated his condition. After being diagnosed with a
severe panic and anxiety disorder, he took a leave of absence from September 2010
to March 2011. During that leave, his medical condition was “communicated on a
regular basis” to Costco. After he returned from leave, Costco terminated him
because of his disability, without offering additional leave or any other reasonable
accommodation, and without engaging in an interactive process, even though
Costco knew that he was under a doctor’s care and that his medication required
adjustment.
At the outset, we observe that our review of the complaint’s allegations is
limited by the scope of Galvan’s contentions in his opening brief. Although the
complaint alleges that Costco offered no reasonable accommodations before his
demotion, his opening brief on appeal maintains only that there are triable issues
whether Costco contravened FEHA after he returned from his leave. We therefore
limit our inquiry to the FEHA claims related to his discharge following the leave.

3
2. Costco’s Showing
In seeking summary judgment, Costco contended that Galvan’s FEHA
claims failed for several reasons, namely, that it was unaware Galvan had a
disability, that he requested no reasonable accommodations, and that it discharged
3
Some of the evidence discussed below was submitted in conjunction with Costco’s
reply to Galvan’s opposition, and is cited in Costco’s respondent’s brief on appeal.
Before the trial court and on appeal, Galvan has not objected to Costco’s reliance on that
evidence; indeed, Galvan’s reply brief also cites some of it. Accordingly, we incorporate
it into our summary of Costco’s showing. (See Plenger v. Alza Corp. (1992) 11
Cal.App.4th 349, 362, fn. 8 [trial court may properly consider new evidence submitted
with reply brief, “so long as the party opposing the motion for summary judgment has
notice and an opportunity to respond to the new material”].)

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him solely because of his poor performance. Costco submitted evidence
supporting the following version of the underlying facts: In 2008, Costco
promoted Galvan to receiving manager, a senior managerial position that obliged
him to open the Canoga Park warehouse at 4:00 a.m. At Galvan’s request, Costco
moved him to other managerial positions. In late 2009, Galvan asked to be moved
back to the position of receiving manager, stating that “it would help with his
marriage.” Costco did so.
Although Galvan lived less than a mile from the Canoga Park warehouse, he
was repeatedly late for work, and received two counseling notices for tardiness in
June and August 2010. In issuing the second notice, Costco told him he would be
demoted or discharged if he received another notice within six months. Galvan
replied that he had “family issues,” but would improve his performance. Eight
days later, he was three hours late for work. On August 31, 2010, Costco demoted
Galvan to night merchandising manager, a junior managerial position, and
transferred him to the Simi Valley warehouse. Costco also warned Galvan that he
would be subject to suspension pending termination if he received a notice for
tardiness prior to February 20, 2011, or a notice for any other reason prior to
December 22, 2010.
Immediately after the demotion, Galvan applied for personal medical leave
under the FMLA, which Costco granted. Later, Galvan requested an extension of
his leave to March 2011. In support of that request, Galvan submitted a notice
from his physician, Dr. Alan S. Ruttenberg, stating that the extension was needed
“[d]ue to illness.” In early February 2011, Galvan notified Costco that he intended
to return to work in March 2011.
On March 2, 2011, Galvan submitted a “work restrictions” form executed
by Ruttenberg, who stated that Galvan required no restrictions. On March 7, 2011,
Galvan returned to work at the Simi Valley warehouse as a night merchandising

8
manager. He generally began work at either 12:30 or 1:30 in the afternoon, and
worked until the warehouse closed. His duties included communicating with other
managers at the start of his shift, and securing the warehouse at closing.
Costco presented evidence that after returning, Galvan was repeatedly late
for work and failed to perform his duties, but that prior to his termination in May
2011, he requested no accommodation related to an ongoing disability or medical
condition. Costco’s evidence included excerpts from Galvan’s deposition
testimony, which showed that Galvan discussed the side effects of medication he
was taking with Kevin Mirrett, an assistant warehouse manager. Costco
nonetheless maintained that prior to its decision to terminate Galvan, he neither
requested an accommodation nor asked Ruttenberg to help him secure an
accommodation.
According to Costco, Galvan was late for a managers’ meeting on his first
day of work after his leave. Following that meeting, Mirrett told Galvan that
punctuality was very important. Nonetheless, from March 14 to May 8, 2011,
Galvan was late for 28 of 38 shifts. In addition, Galvan once left the warehouse
receiving door open when he left at night, and on at least one or two occasions,
fellow workers were unable to call him at closing time because his radio was
turned off. That conduct violated Costco’s closing procedures. Galvan’s co-
workers complained to Mirrett and Steve Kakuk, the warehouse manager, that
Galvan failed to respond to radio calls, and that his night crew did not leave the
warehouse ready for business the next day.
In March and April 2011, Galvan received three counseling notices
regarding his performance. The first notice, dated March 23, stated that Galvan
had been late for five of the 11 shifts he had then worked. When Galvan met with
Kakuk and Mirrett to discuss the notice, Kakuk told Galvan that attendance
problems would not be tolerated. Kakuk further said that he and the other

9
managers would “do everything within [their] power to help [Galvan], but he ha[d]
to reach out to [them] and let [them] know what he need[ed].” On the portion of
the notice for employee responses, Galvan apologized for his conduct, promised to
“be more proactive and ask for help when needed,” and resolved to be punctual. In
addition, Galvan stated: “If anything does come up[,] I will call and let a
[manager] know.”
Galvan testified in his deposition that after the March 23 meeting, he told
Mirrett that he was having “a hard time trying to manage [himself] with the
medication that [he] was taking.” Galvan stated: “I was telling him that I
. . . really tried to be there on time but . . . there was times that I couldn’t get out of
the house . . . .” He further stated: “[T]he medication was making me feel[]
drowsiness, sleepy, tired, anxiety. I just felt like everything was going [in] slow
motion . . . .” Nonetheless, Galvan acknowledged that he did not tell Mirrett that
he needed a change in his schedule. Galvan also stated that he reported to
Ruttenberg that he was “sleeping a lot,” but the doctor neither changed Galvan’s
restrictions nor provided him with documentation to support an accommodation.
On April 4, 2011, Galvan received a second notice, stating that he had failed
to complete night closing tasks on time. According to the notice, Galvan’s
performance had increased “overtime and payroll” and created morale problems.
The notice further informed Galvan that for two weeks other managers would
assist him in closing the warehouse, and that he would potentially be subject to
termination if he failed to improve his performance.
After receiving the notice, Galvan met with Kakuk and Mirrett, who asked
him to suggest a “plan for improvement.” On the portion of the notice for
employee responses, Galvan promised in writing to be more “visible” and “more
vocal” to his co-workers, and to seek assistance “when needed to help finish [his]
duties.” Although Galvan testified that at, or before, the meeting, he told Mirrett

10
that he was having a hard time “because of [his] medication[],” he acknowledged
that he did not request any type of help from Costco during or after the meeting.
The third notice, dated April 19, 2011, stated that Galvan had repeatedly
arrived late for work, thereby compelling the warehouse’s morning employees “to
stay over their scheduled shifts to wait for him in order to communicate the plan
for the evening [employees].” The notice further warned Galvan that any
additional issue would result in the termination of his employment.
After receiving the notice, Galvan met that same day with Mirrett and Dena
Rodgers, an assistant warehouse manager. At the meeting, Galvan provided the
following written response: “‘I will make a better effort on making it [in] on
time . . . . I do need help getting FMLA paperwork and submitting it in [order] to
help me out with my father[’s] illness . . . . This would help out completely.’”
(Italics added.) Galvan was given paperwork to request FMLA leave, but he did
not submit it until more than a month later, on May 23, 2011, after Costco had
decided to terminate his employment.
Although Galvan testified that at the time of the third notice, he continued to
have issues with his medication, he could not recall whether he told Mirrett or
Rodgers that he needed the FMLA leave to deal with those issues; in addition, he
acknowledged that he never told Kakuk that he needed an accommodation
regarding his medication. Galvan further stated that he did not then ask Ruttenberg
for documentation to support any accommodation related to the medication, and
that Ruttenberg never suggested that he should take additional leave.
Following the third notice, Galvan arrived late for seven of the 12 shifts he
worked prior to May 7, 2011. Kakuk decided to initiate Galvan’s termination, and
discussed it with Shawn Parks, a Costco vice president. On May 12, Kakuk issued
a counseling notice to Galvan and met with him. Mirrett was also present.

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 The counseling notice stated that Galvan had been suspended pending an
investigation, and that he faced possible discharge. The notice noted that Galvan
had not completed the FMLA paperwork he had requested, and that he had been
provided the phone number for the “Care Network,” Costco’s employee assistance
hotline. Regarding the grounds for Galvan’s suspension, the notice described
Galvan’s repeated tardiness, and further stated: “[Galvan] has to be supervised by
upper [m]anagement and peers alike. He has created a situation . . . that has had
employees and [m]anagers stay after their scheduled shifts due to his poor decision
making and lack of follow-through. He oversees the floor crew, but doesn’t
interact or follow-up with them. . . . His time management skills have us running
around [at the] last minute trying to complete the work [he] should be
accomplishing.”
During the meeting, Galvan proposed the following “[p]lan to correct
behavior” on a portion of the notice for employee remarks: “Calling Care Network
and work with medical doctors.” In addition, he provided the following written
response: “Yes, I have had problems that I haven’t resolved. I have a medical
condition that requires me [to] tak[e] different meds and feel that my mind [and]
body is not where it was . . . . I was afraid, embarrassed to tell the staff that meds
are being changed and adjusted. Hopefully, I can get help to get me back to who I
was. [¶] My condition is ongoing and I feel . . . that it was only a bandage on it,
but continues with the issues that I have. I want to be a hundred percent dedicated
to my family and Costco right now. I’m not close to either. . . .”
Galvan acknowledged that at the time of the May 12 meeting, he had never
asked Ruttenberg to recommend that he be subject to any work restrictions. In
response to an inquiry whether prior to May 12, Galvan asked Ruttenberg for a
note adjusting his restrictions, Galvan answered: “No. . . . [Ruttenberg] had been
changing my meds and that’s the way we thought we were going to be able to deal

12
with this.” (Italics added.) Galvan further testified that at some point after the
May 12 meeting, he discussed an FMLA leave with Ruttenberg, although he could
not recall when he did so.
Ruttenberg testified in his deposition that on May 11, the day before Galvan
met with Kakuk and Mirrett, Ruttenberg conducted a regularly scheduled
appointment with Galvan; this was Ruttenberg’s first contact with Galvan
following his previous appointment on March 30. After Galvan reported that his
medication had improved his functioning in several ways, Ruttenberg decided to
adjust the dosage. According to Ruttenberg, although Galvan was having
“difficulty functioning in the workplace,” Galvan never suggested that he needed
leave or any other work-related accommodation or restriction. Ruttenberg had no
recollection that Galvan presented him with FMLA paperwork regarding a leave.
Ruttenberg further testified that his next contact with Galvan occurred on May 21,
when they first discussed a leave.
On May 12, Kakuk placed Galvan on a seven-day unpaid suspension, and
discussed Galvan’s discharge with several persons who had witnessed his conduct.
Kakuk then referred the discharge to Parks, who forwarded it to Denis Zook, a
Costco executive vice president. Parks and Zook approved Galvan’s discharge. In
addition, Brenda Weber, a Costco personnel director, informed Kakuk that there
was sufficient documentation to support Galvan’s discharge. On May 19 and 20,
4
Kakuk made phone calls to Galvan to set up a meeting for May 23.

4
As noted later in our discussion (see pt. D.2.iv., post), there is some dispute
whether the discharge decision was made May 16 or 17. Kakuk testified, however, that
the decision was made during the seven-day suspension period (ending May 19), and he
submitted a declaration stating that he called Galvan on May 19 and 20 to set up the May
23 “termination meeting” at which he intended to communicate Costco’s decision to
Galvan.

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 On May 21, the day after speaking with Kakuk, Galvan phoned Ruttenberg
to discuss an FMLA leave. Galvan failed to appear at the May 23 meeting, but that
same day faxed Kakuk a request for an FMLA leave. Costco then sent Galvan his
discharge paperwork and final check.

3. Galvan’s Showing
In opposition to summary judgment, Galvan contended there were triable
issues regarding whether Costco knew that following his leave, he suffered from a
disability or medical condition and sought a reasonable accommodation. Galvan
offered the following version of the underlying facts: From 1999 to 2009, he
received praise for his work and was promoted several times. In 2009 and 2010,
while employed at the Canoga Park warehouse, he began to suffer from what was
later diagnosed as depression, anxiety, and panic. In June 2010, he received
treatment in an emergency ward for abdominal pain related to stress.
On August 31, 2010, after being “written up” for excessive tardiness, Galvan
was demoted to a junior night manager and transferred to the Simi Valley
warehouse. The demotion caused Galvan considerable distress and anxiety, for
which he sought medical treatment. Galvan informed Costco that he had
significant emotional and mental issues, and that he suffered from anxiety.
From September 1, 2010 to March 7, 2011, Galvan took a medical leave to
deal with major depression, anxiety, and panic disorder. While on leave, Galvan
sent Costco copies of medical records from Ruttenberg stating that Galvan suffered
from “severe depression” and anxiety, and was taking certain medications. In
March 2011, when Ruttenberg released Galvan to work without restriction, the
release form identified Ruttenberg as a psychiatrist.
Galvan maintained there was considerable evidence that after he returned
from the leave, Costco knew he needed a reasonable accommodation to deal with

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the side effects of the medication for his depression. Galvan pointed to evidence
that he told Mirrett and Kakuk that his medication affected his performance and
that he was attempting to adjust the medication. Galvan also submitted evidence
that no later than his May 12, 2011 meeting with Kakuk, both Kakuk and Weber
knew that Galvan attributed his deficient performance to his depression
medication.
According to Weber’s records, on May 10, 2011, Galvan informed her by e-
mail that he had seen a doctor because he had awakened with chest pains. In
addition, Galvan stated that he had an appointment the next day with his “other
Dr.” On May 11, Weber conversed with someone -- apparently Kakuk -- who
stated: “[Galvan] told my [assistant manager] that he’s on meds for depression.
Never said that depression is why he’s late.”
Later, after Kakuk conducted his May 12 meeting with Galvan, Kakuk
talked to Weber. According to Weber’s records, Kakuk made the following
remarks: “[H]e’s on [six] dif[ferent] meds due to demotion[.] [H]e had anxiety
and depression[.] [H]asn’t been able to get meds right . . . . [S]aid he didn’t tell us
because embarrassed by it. Had same issues before demoted and before meds
(late, poor work performance)[.] . . . Had thoughts of suicide while on [leave].
Not feeling that way now. He says he needs help.” Weber’s records also reflect
the following remark by Kakuk: “[Galvan] says the FMLA paperwork is at
[doctor’s] as of May 11[].”

4. Trial Court’s Rulings
In assessing Galvan’s FEHA claims, the trial court determined there were
triable issues regarding whether Costco knew that Galvan had a disability before it
decided to discharge him. The court nonetheless ruled that summary adjudication
on the FEHA claims was properly granted, concluding that Galvan requested no

15
accommodation regarding his disability, and that Costco’s decision to discharge
him was based solely on legitimate, nondiscriminatory reasons.

D. Analysis
For the reasons discussed below, we see no error in the trial court’s
determinations. The focus of our inquiry is initially on Galvan’s key claims, that
is, the “reasonable accommodation” claims and the claim that he was discharged
for a discriminatory reason.

1. Costco’s Knowledge of a Disability
We begin with an issue central to those claims, namely, whether Costco was
aware that Galvan had a disability. Although Costco challenged Galvan’s
discrimination claim on the ground that it was unaware of his disability (Brundage
v. Hahn (1997) 57 Cal.App.4th 228, 236-237 (Brundage) [disability discrimination
claims fail when employer is ignorant of disability], that challenge was also
relevant to his “reasonable accommodation” claims, as the statutory provisions
underlying those claims predicate employer liability on a “known” disability (Avila
v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1252-1253 (Avila);
§ 12940, subds. (m), (n)).
Under FEHA, the term “[m]ental disability” includes “any mental or
psychological disorder or condition[] such as . . . emotional or mental illness
. . . that limits a major life activity.” (§ 12926, subd. (j)(1).) Here, FEHA specifies
that “‘[l]imit[]’ shall be determined without regard to mitigating measures[] such
as medications . . . unless the mitigating measure itself limits a major life activity.”
(§ 12926, subd. (j)(1)(a), italics added.) In addition, FEHA states that a mental
disorder “limits a major life activity” when it makes “achievement” of that activity

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“difficult,” and defines “‘[m]ajor life activities’” to include “working.” (§ 12926,
subds. (j)(1)(B), (j)(1)(C).)
Here, the record discloses evidence that following Galvan’s leave, Costco
knew that he had taken the FMLA leave to address depression and anxiety, that he
returned to work after the leave under the care of a psychiatrist, that he had been
prescribed medication to control his depression, and that his medication’s side
effects influenced his performance at work. Although nothing in the record
suggests that Costco received any medical information, reports, or requests from
Ruttenberg following Galvan’s leave, there is evidence that Galvan discussed his
medication and its side effects with his supervisors. Accordingly, in view of the
statutory provisions described above, the trial court correctly determined that there
were triable issues regarding Costco’s knowledge of a disability, that is, whether
following the leave, Costco knew that Galvan was treating his depression with
medication that influenced his performance as an employee.

2. “Reasonable Accommodation” Claims
We turn to Galvan’s claims that Costco failed to engage in an interactive
process regarding a reasonable accommodation, and failed to provide such an
accommodation. Unlike Galvan’s discrimination claim (see pt. D.3., post), those
claims require no showing that Costco made an unfavorable decision regarding the
terms of Galvan’s employment -- for example, that it discharged him -- or that it
acted on the basis of a discriminatory motive. (King v. United Parcel Service, Inc.
(2007) 152 Cal.App.4th 426, 442 (King); Jensen v. Wells Fargo Bank (2000) 85
Cal.App.4th 245, 256 (Jensen).) The “reasonable accommodations” claims
themselves are also distinct, as they involve “different proof of facts. [Citation.]
The purpose of the interactive process is to determine what accommodation is
required. [Citation.] Once a reasonable accommodation has been granted, then the

17
employer has a duty to provide that reasonable accommodation. [Citation.]”
(A.M. v. Albertsons LLC (2009) 178 Cal.App.4th 455, 464.) Nonetheless, although
the claims are independent, “each necessarily implicates the other.” (Gelfo v.
Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 54 (Gelfo).)
We conclude that summary adjudication was properly granted on both
claims due to fatal deficiencies directly related to the “‘interactive process’” claim.
Generally, an employer is not required to provide an accommodation when that
omission is due to the employee’s failure to present information -- in the form of a
request for an accommodation, or in some other way -- sufficient to initiate the
interactive process (King, supra, 152 Cal.App.4th at pp. 442-444), or when the
employer “did everything in its power to find a reasonable accommodation, but the
. . . interactive process broke down because the employee failed to engage in
discussions in good faith” (Jensen, supra, 85 Cal.App.4th at p. 263). As explained
below (see pt. D.2.iii., post), the evidence established (1) that Galvan never
requested an accommodation or otherwise triggered Costco’s obligation to engage
in the interactive process required under FEHA, and (2) that Costco nonetheless
engaged in an “interactive process” that broke down due to Galvan’s conduct.

i. Employee Duties Regarding the “Interactive Process”
“The ‘interactive process’ required by the FEHA is an informal process with
the employee or the employee’s representative, to attempt to identify a reasonable
accommodation that will enable the employee to perform the job effectively.”
(Wilson, supra, 169 Cal.App.4th at p. 1195.) Reasonable accommodations may
include adjustments to the employee’s work schedule, transfers to a vacant
position, and leave. (Id. at pp. 1193-1194.)
Under FEHA, the employee must initiate the interactive process “unless the
disability and resulting limitations are obvious.” (Scotch, supra, 173 Cal.App.4th

18
at p. 1013.) Although the regulations accompanying FEHA state that employers
have an “affirmative duty” to offer reasonable accommodations to employees with
a known disability, the regulations recognize that in some instances, no
accommodation can be identified or implemented unless the interactive process is
triggered. (Cal. Code Regs., tit. 2, §§ 11068, subd. (a), 11069, subd. (a).) The
regulations further provide that absent exceptional circumstances not present here,
the employer must initiate the interactive process when the employee requests an
accommodation, or when the employer “becomes aware of the need for an
accommodation through a third party or by observation . . . .” (Cal. Code Regs.,
tit. 2, § 11069, subds. (b)(1), (b)(2).)
“Typically, an . . . employee triggers the employer’s obligation to participate
in the interactive process by requesting an accommodation. [Citation.] Although
it is the employee’s burden to initiate the process, no magic words are necessary,
and the obligation arises once the employer becomes aware of the need to consider
an accommodation.” (Gelfo, supra, 140 Cal.App.4th at p. 62, fn. 22.)
Nonetheless, “‘the interactive process of fashioning an appropriate accommodation
lies primarily with the employee.’ [Citation.] An employee cannot demand
clairvoyance of his employer. [Citation.] ‘“[T]he employee can’t expect the
employer to read his mind and know he secretly wanted a particular
accommodation and sue the employer for not providing it. . . . .”’ [Citation.] ‘It is
an employee’s responsibility to understand his or her own physical or mental
condition well enough to present the employer at the earliest opportunity with a
concise list of restrictions which must be met to accommodate the employee.’”
(King, supra, 152 Cal.App.4th at p. 443.)
In King, a truck driver was transferred from a daytime shift to a more
demanding evening schedule. (King, supra, 152 Cal.App.4th at p. 434.) After he
was diagnosed with a blood disorder, he took a five-month medical leave. (Ibid.)

19
Upon returning from the leave, the driver presented a note from his doctor, stating
that he was released to perform his regular duties and hours. (Id. at p. 444.) The
driver was returned to his evening schedule, and later discharged. He asserted
disability-related FEHA claims, alleging that his employer failed to accommodate
his blood disorder. (Id. at pp. 442-444.) The trial court granted summary
judgment on the claims, reasoning that the driver neither made a specific request
for a necessary accommodation nor presented a “concise list of restrictions.” In
affirming the summary judgment, the appellate court noted that the driver neither
communicated his disorder-related work distress to his supervisors nor clarified his
medical restrictions. (Id. at p. 443.) The court stated: “We agree with the trial
court that plaintiff has not sustained his burden of demonstrating a genuine issue of
material fact given his failure to get additional clarification from his doctor . . . and
to communicate his limitations to his supervisors.” (Id. at p. 444.)
Furthermore, under FEHA, the employee, like the employer, is subject to an
additional obligation after the interactive process has been initiated. “Both
employer and employee have the obligation ‘to keep communications open’ and
neither has ‘a right to obstruct the process.’ [Citation.] ‘Each party must
participate in good faith, undertake reasonable efforts to communicate its concerns,
and make available to the other information which is available, or more accessible,
to one party. Liability hinges on the objective circumstances surrounding the
parties’ breakdown in communication, and responsibility for the breakdown lies
with the party who fails to participate in good faith.’ [Citation.]” (Scotch, supra,
173 Cal.App.4th at p. 1014.) Under the “good faith communication” requirement,
“[a] party that obstructs or delays the interactive process is not acting in good faith.
A party that fails to communicate, by way of initiation or response, may also be
acting in bad faith.” (Beck v. Univ. of Wis. Bd. of Regents (7th Cir. 1996) 75 F.3d

20
1130, 1135; accord, Humphrey v. Memorial Hospitals Association (9th Cir. 2001)
239 F.3d 1128, 1137 (Humphrey).)

ii. Relevant Evidence
Viewed in the light most favorable to Galvan, the evidence shows that after
Ruttenberg released Galvan for work without any restrictions in early March 2011,
his work performance at the warehouse was deficient. His tardiness impaired the
transition between the morning and evening shifts, and he failed to perform key
tasks during his shift. At some point, his supervisors also became aware that
Galvan was taking medication that influenced his work performance.
Through Costco’s “counseling notice” process, Galvan’s supervisors
repeatedly met with him, described his performance deficiencies, and asked him to
propose how they could be resolved. Throughout that process, Galvan never
requested any accommodation, general or specific, related to his medication.
During the meetings on March 23 and April 4, 2011, Galvan did not mention the
medication, and proposed to improve his performance without assistance from
Costco. At the April 19, 2011 meeting, Galvan again did not refer to his
medication, and instead requested paperwork for an FMLA leave to help him deal
with his father’s illness, which he said would “help out completely.” After the
meeting, Costco gave him the FMLA paperwork, but over the course of the next
four weeks he failed to submit any request for a leave.
Galvan discussed his medications at the final meeting on May 12, 2011,
when he was placed on a seven-day unpaid suspension pending an investigation
regarding his potential discharge. Galvan stated that he had forwarded the FMLA
paperwork to Ruttenberg and that he needed “help to get [him] back to who [he]
was.” However, when asked to offer a plan to resolve his performance
deficiencies, Galvan stated only that he would call the Care Network -- Costco’s

21
employee hotline -- and “work with medical doctors.” Furthermore, during the
suspension period, he did not request a leave or any other accommodation, even
though he knew that he faced possible discharge.
Although there is evidence that on May 12, Galvan told Kakuk and Mirrett
that he needed “help” and had sent the FMLA paperwork to Ruttenberg, nothing in
the record supports the reasonable inference that he then manifested a desire or
need for an accommodation from Costco. According to Galvan’s written response
to the May 12 notice, the help he sought was to “get . . . back to who [he] was”
through the adjustment of his medication; indeed, his proposed course of action
was to “work with” his doctors. Furthermore, there is no evidence that Galvan and
Ruttenberg discussed any possible accommodation from Costco until after Costco
decided to discharge him and after Galvan had been summoned to a meeting set for
May 23. According to Galvan’s and Ruttenberg’s own testimony, prior to May 21,
when Galvan asked Ruttenberg to help him obtain a leave, Galvan and Ruttenberg
were attempting to resolve Galvan’s problems independently of Costco, that is, by
adjusting his medication.

iii. Propriety of Summary Adjudication
On the evidence described above, the trial court concluded there were no
triable issues whether Galvan triggered Costco’s obligation to engage in an
interactive process. We agree with that determination. In Taylor v. Principal
Financial Group, Inc. (5th Cir. 1996) 93 F.3d 155, 158-161, the plaintiff, a sales
manager, was repeatedly criticized by his employer for poor performance.
Although he told his employer that he suffered from bipolar disorder and asked for
a reduction in his performance goals and “a lessening of the pressure,” he
identified no limitations or restrictions imposed by his illness, and indicated that he
could meet his job requirements. (Id. at pp. 165-166.) After the employer

22
responded by giving him six months to meet certain specified goals, he asserted
ADA claims, alleging, inter alia, that his employer had failed to engage in an
interactive process to determine a reasonable accommodation. (Ibid.)
In affirming summary judgment on the claims, the Fifth Circuit concluded
there was no triable issue whether the plaintiff triggered the employer’s duty to
engage in an interactive process: “Where the disability, resulting limitations, and
necessary reasonable accommodations, are not open, obvious, and apparent to the
employer, as is often the case when mental disabilities are involved, the initial
burden rests primarily upon the employee, or his health-care provider, to
specifically identify the disability and resulting limitations, and to suggest the
reasonable accommodations. It simply stands to reason that the employee and his
health-care provider are best positioned to know what type of accommodation is
appropriate for the employee. When the nature of the disability, resulting
limitations, and necessary accommodations are uniquely within the knowledge of
the employee and his health-care provider, a disabled employee cannot remain
silent and expect his employer to bear the initial burden of identifying the need for,
and suggesting, an appropriate accommodation.” (Taylor, supra, 93 F.3d at
p. 165.)
The reasoning of Taylor applies here. Although Costco was aware of
Galvan’s medical history and that his depression medication influenced his
performance, any limitations arising from the medication and the resulting
reasonable accommodations, were “‘not open, obvious, and apparent’” to Costco.
(Scotch, supra, 173 Cal.App.4th at p. 1013.) Galvan’s tardiness disrupted
operations at the Simi Valley warehouse, as did his failure to perform key tasks
during his shift. Because he arrived late for his evening shift, he interfered with
the transition between the morning and the evening shift workers. During his shift,
employees lost contact with him because he turned off his radio; moreover, he

23
failed to complete closing tasks in a timely and adequate manner. Because
Galvan’s shift began in the afternoon, it was not obvious how to resolve his
tardiness; similarly, it was not obvious how to address his other deficiencies. The
burden thus fell on Galvan to specify his limitations and identify some possible
accommodations that he desired; he failed to do so. As explained above (see pt.
D.2.ii., ante), prior to Costco’s discharge decision, Galvan never requested a leave
or any other accommodation, and never provided Costco with information from
Ruttenberg regarding his limitations or a possible accommodation.
Summary adjudication was also proper for another reason, namely, that
Costco’s “counseling notice” process, as applied to Galvan, effectively constituted
5
an interactive process that broke down due to Galvan’s failure to participate in it.
In Tatum v. Hospital of the Univ. of Pa. (E.D. Pa. 1999) 57 F.Supp.2d 145, a
nursing assistant asserted an “interactive process” ADA claim against the hospital
that employed her. At trial, the nursing assistant presented evidence that after
developing a cyst, she felt pain while lifting and moving patients. (Id. at pp. 147-
148.) From 1973 to 1994, she was able to perform those essential tasks of her
position, with some assistance provided as an accommodation by the hospital.
(Ibid.) In 1994, she told her supervisor that she was having difficulty lifting and
pulling heavy patients. (Ibid.) The hospital repeatedly asked her to obtain

5
We may affirm the summary adjudication on a ground not relied upon by the trial
court, provided that the parties have had an adequate opportunity to address that ground.
(Bain v. Moores (2009) 172 Cal.App.4th 445, 471, fn. 39; Code Civ. Proc., 437c, subd.
(m)(2).) That requirement is satisfied here, as Costco asserted the ground discussed
above before the trial court and on appeal, and Galvan presented his views regarding the
alternative ground in his reply brief. (Bain v. Moores, supra, 172 Cal.App.4th at p. 471,
fn. 39.)

24
information from her doctor detailing her physical capabilities and limitations, but
she failed to do so. (Ibid.) When she refused to lift patients, the hospital placed
her on an unpaid suspension. The trial court granted judgment on her “interactive
process” claim as a matter of law, concluding that the hospital acted in good faith
during the interactive process, and that the nursing assistant failed to provide the
medical information necessary to identify a reasonable accommodation.
Here, the record establishes that Galvan failed to meet the “good faith
communication” requirement relating to the interactive process. The evidence
shows that Costco repeatedly met with Galvan to discuss his performance
deficiencies. At his request, Costco gave him FMLA paperwork for a leave,
predicated not on his own condition, but on his father’s illness. Even then, Galvan
failed to submit the paperwork until more than a month had passed and Costco had
already determined to discharge him. Galvan did not, in fact, discuss a leave or
any other accommodation with Ruttenberg. Indeed, even after the final meeting on
May 12, 2012, when Galvan told his supervisors that he intended to work with
Ruttenberg, and that he had forwarded the FMLA paperwork to him, Galvan
discussed no accommodation with Ruttenberg until May 21, after the seven-day
suspension period had expired and after he had been summoned to the May 23
meeting. In our view, Galvan’s delays and failure to communicate cannot be
regarded as good faith participation in an interactive process.

iv. Galvan’s Contentions
Galvan contends that Costco’s knowledge of his disability, coupled with his
other conduct, was sufficient to trigger Costco’s obligation to engage in an
interactive process. He relies on decisions regarding the FEHA and the ADA
standing for the proposition that the employer must explore reasonable
accommodations once it has sufficient information -- in any suitable form --

25
regarding the employee’s disability, and his desire or obvious need for an
6
employer-provided accommodation. We accept that broad proposition. As
explained above (see pt. D.2.iii., ante), however, despite repeated opportunities to
communicate “the nature of the disability, resulting limitations, and necessary
accommodations,” Galvan did not do so. (Taylor, supra, 93 F.3d at pp. 165-166.)
Because those facts were not obvious to Costco, Galvan failed to trigger the
interactive process required under FEHA.
There is no evidence that Costco disregarded information that amounted to a
request for an accommodation from Costco, or that rendered obvious a desire or
need for such an accommodation. Galvan knew how to ask for an accommodation,
as he was a long term employee with managerial experience and knowledge of
Costco’s leave policies; moreover, as we elaborate below, nothing before us

6
Wysinger, supra, 157 Cal.App.4th at p. 426 [under FEHA, employer must engage
in good faith interactive process to identify specific accommodation when employee with
known lupus and arthritis requests an accommodation]; Prillman v. United Air Llines,
Inc. (1997) 53 Cal.App.4th 935, 953 [FEHA requires employers to work with disabled
employees to accommodate their needs]; Barnett v. U.S. Air, Inc. (9th Cir. 2000) 228
F.3d 1105, 1111, vacated on other grounds by U.S. Airways, Inc. v. Barnett (2002) 535
U.S. 391, 404 [under the ADA, “an employer has a mandatory obligation to engage in the
interactive process and . . . this obligation is triggered either by the employee’s request
for accommodation or by the employer's recognition of the need for accommodation”];
Taylor v. Phoenixville School Dist. (3d Cir. 1999) 184 F.3d 296, 313 (Phoenixville
School Dist.) [employer must explore accommodations when “the employer can be fairly
said to know of both the disability and desire for an accommodation”]; Diaz v. Federal
Express Corp. (C.D. Cal. 2005) 373 F.Supp.2d 1034, 1041-1042, 1054-1055, 1064 (Diaz)
[no express request for accommodation was required when employer received
psychiatrist’s report specifying employee’s mental disorder and recommending
modification of work responsibilities]; Norris v. Allied-Sysco Food Service, Inc. (N.D.
Cal. 1996) 948 F.Supp. 1418, 1436 [employee need not expressly request
accommodations when “[the] disability and the need to accommodate it are obvious”];
Schmidt v. Safeway, Inc. (D. Or. 1994) 864 F.Supp. 991, 997 [employee need not speak
“magic words” to trigger inquiry into accommodations].)

26
suggests that his disability impaired his ability to request an accommodation.
Furthermore, Costco’s “counseling notice” process afforded Galvan an opportunity
to ask for help from Costco to resolve performance deficiencies based on personal
problems. Indeed, at the April 19, 2011 meeting, when Galvan attributed his
deficiencies to his father’s illness and asked for FMLA paperwork, Costco
immediately provided it. Yet at the four “counseling notice” meetings, Galvan
proposed no course of action relating to his disability that required action by
Costco. Furthermore, Costco cannot reasonably be regarded as having ignored an
obvious need for an accommodation when neither Galvan nor his doctor perceived
that need, as Galvan never discussed obtaining an accommodation from Costco
with Ruttenberg prior to May 21. On this record, we see no triable issue whether
Costco had adequate notice that Galvan requested or needed an accommodation
7
relating to his disability.

7
In a related contention, Galvan challenges the trial court’s determination that he
admitted during his deposition that he never requested an accommodation from March
2011 to the date of his termination. The court appears to have concluded that Galvan’s
testimony constituted a judicial admission regarding that matter. Galvan contends his
testimony did not rise to a judicial admission, as it did not conclusively nullify the
possibility that he made an express request for some type of accommodation to some
supervisor. It is unnecessary for us to resolve his contention, as, for the reasons discussed
above, there are no triable issues whether Galvan requested an accommodation or
otherwise triggered the interactive process required under FEHA. Those determinations
are sufficient to support summary adjudication on his “reasonable accommodation”
claims.
Galvan’s reply brief suggests that the specific accommodation he requested was
additional time for Ruttenberg to adjust his medication. Although there is evidence that
Galvan told his supervisors at some point that his medication was being adjusted, nothing
in the record raises the reasonable inference that he requested more time in order to
complete the adjustments.

27
 Pointing primarily to Bultemeyer v. Fort Wayne Community Schools (7th
Cir. 1996) 100 F.3d 1281 (Bultemeyer) and Phoenixville School Dist., supra, 184
F.3d 296, Galvan contends that because he had a mental disability, he was not
required to carry the initial burden ordinarily imposed on employees to trigger the
interactive process. As explained below, we disagree. Those decisions establish
that when an employer knows that the employee’s mental disability appears to
affect his or her ability to seek an accommodation or provide medical information,
the employer must “meet the employee half-way,” that is, undertake more
responsibility during the interactive process. (Bultemeyer, supra, 100 F.3d at
p. 1285; accord, Phoenixville School Dist., supra, 184 F.3d at p. 314.) Thus,
during the interactive process, “if it appears that the employee may need an
accommodation but doesn’t know how to ask for it, the employer should do what it
can to help.” (Bultemeyer, supra, 100 F.3d at p. 1285.) Furthermore, during the
interactive process, the employer may be obliged to request additional information
it believes that it needs, particularly when the employee’s “symptoms are flaring.”
8
(Phoenixville School Dist., supra, at p. 315.)
Galvan maintains there is a triable issue whether his mental disability
impaired his ability to initiate the interactive process and participate in it, placing
special emphasis on his April 19, 2011 remark to Kakuk that he “needed help
getting and submitting” the FMLA paperwork he then requested. However,
nothing in the record raises the reasonable inference that Costco was on notice that

8
Galvan also relies on a treatise stating that “[i]f mental illness prevents the
employee from requesting an accommodation, the employer must devise one. . . .” (Chin
et al., Cal. Practice Guide: Employment Litigation (The Rutter Group 2013) [¶]
9:1244.2, p. 9-110 (rev. #1 2009).) As discussed above, we find nothing in the record to
demonstrate Galvan was incapable of requesting an accommodation.

28
Galvan’s mental disability affected his ability to identify or ask for an
accommodation. In September 2010, Galvan successfully applied for and obtained
an FLMA leave, from which he returned without restrictions. In discussing his
medication with supervisors, he attributed his reluctance to disclose the medication
solely to embarrassment. On May 12, 2011, when Galvan discussed the FMLA
paperwork he had been provided, he told his supervisors that it had been forwarded
to his doctor and that he intended to work with his doctor. Furthermore, in
opposing summary judgment, Galvan offered no expert medical evidence
suggesting that his condition prevented him from seeking an accommodation.
Indeed, on May 21, 2011, he asked Ruttenberg to assist him in obtaining a leave,
and Ruttenberg complied.
Galvan suggests there is a triable issue whether Costco decided to terminate
him before he requested the FMLA leave. That contention fails on the record
before us. The record discloses that Galvan first made an appropriate request for
an accommodation on May 23, 2011, when Ruttenberg faxed the FMLA leave
request to Costco. The record further establishes that Costco made the termination
decision before that date. It is undisputed that on May 12, 2011, Galvan received a
counseling notice and was placed on a seven-day unpaid suspension. The notice
stated: “[Galvan] will be suspended[] pending an investigation, and can [sic] result
in additional disciplinary action, up to and including termination.” Although
Kakuk could not recall the precise date on which he decided to discharge Galvan,
Kakuk testified that the decision was made during the suspension period, i.e., on or
before May 19. On May 19 and 20, Kakuk called Galvan to set up a meeting for
May 23. Galvan testified that he remembered speaking to Kakuk when he called to
set up a meeting, and that instead of appearing at the meeting, he had his wife fax
his FMLA leave request to Costco. On May 24, after Galvan failed to appear at

29
the May 23 meeting, Costco sent Galvan a discharge letter stating that he had been
9
terminated on May 16.
Galvan also maintains that Costco was obliged to provide reasonable
accommodations even if Galvan requested an FMLA leave after Costco’s
termination decision. That contention presents an issue of first impression, as our
research has disclosed no published decision examining whether FEHA obliges
employers to provide accommodations following a termination decision.
We find guidance regarding the contention from Nadaf-Rahrov, supra, 166
Cal.App.4th at pp. 971-976, which examined the meaning of the term “reasonable
accommodation” for purposes of section 12940, subdivision (m), which requires

9
In an effort to raise a triable issue whether the discharge decision occurred after
Costco received Galvan’s leave request on May 23, Galvan points to a May 17, 2011 e-
mail from Parks to Kakuk stating that Zook’s approval of the discharge would be sought
“now.” Galvan further notes that Kakuk’s phone records regarding his May 19 and 20
calls to Galvan do not expressly identify the meeting that Kakuk set as a “termination”
meeting. However, as Parks testified that Zook promptly approved the termination when
Parks called him and it is undisputed that Kakuk called Galvan to set up the May 23
meeting a few days before, there is no basis to conclude Costco’s decision to discharge
Galvan was made after his leave request on May 23. Indeed, Galvan did not consult
Ruttenberg about seeking a medical leave until after he had been notified by Kakuk of the
May 23 meeting.
Galvan also suggests that certain purported inconsistencies in Costco’s records
raise a triable issue whether the discharge decision preceded his May 23 leave request.
He notes that his final check, which paid for his services through May 23, was dated May
24; that Costco’s records reflect two different effective dates for his termination, namely,
May 16 and 23; and that Kakuk testified that Costco normally takes 48 hours to prepare a
discharged employee’s final check. To the extent Galvan suggests the discharge decision
might have been made as late as 48 hours before his check was prepared, viz., Sunday,
May 22, nothing in the record suggests the departments involved in preparing the final
check-- including, according to Kakuk, Costco’s central payroll office -- function on
Sunday. Even were we to indulge that hypothesis, moreover, this would still put the
discharge decision prior to the date Galvan requested leave.

30
employers “‘to make reasonable accommodation for the known physical or mental
disability of an applicant or employee.’” The issue presented in Nadaf-Rahrov was
whether that provision imposes liability on an employer for failing to provide an
accommodation when no accommodation would enable a disabled employee or
applicant to perform the essential functions of the position held or sought. (Id. at
pp. 971-976.) Following a discussion of the statutory scheme, the appellate court
held that “reasonable accommodation” means “a modification or adjustment to the
workplace that enables the employee to perform the essential functions of the job
held or desired.” (Id. at p. 974.) As the court explained, that definition ensures
that an employer is subject to liability for failing to make a reasonable
accommodation only when there is some accommodation that will enable an
employee to perform the essential functions of his or her position. (Id. at p. 975.)
In view of Nadaf-Rahrov, we reject Galvan’s contention. Under Nadaf-
Rahrov, when an employee becomes disabled, the purpose of a reasonable
accommodation is to modify workplace conditions so that the employee may
continue to perform the essential functions of the job held. That purpose is
nullified when the employer properly decides to terminate an employee before an
accommodation is requested. As we elaborate further below (see pt. D.3, post),
under the circumstances presented here, Costco’s decision to terminate did not
contravene FEHA. Accordingly, it would be unreasonable to subject Costco to
liability for failing to provide Galvan with an accommodation after it decided to
terminate his employment, merely because Galvan requested the accommodation
before he formally learned of the decision.
The four ADA decisions upon which Galvan relies are distinguishable. In
two of the cases, the appellate court reversed summary judgment in an employer’s
favor, concluding that the employer was potentially liable for failing to provide an
accommodation requested after a termination decision, as the interactive process

31
had broken down due to the employer’s misconduct before that decision.
(Humphrey, supra, 239 F.3d at pp. 1137-1139 [evidence showed that after
employee initiated the interactive process, employer improperly failed to consider
reasonable accommodations before discharging employee]; Bultemeyer, supra, 100
F.3d at pp. 1282, 1285-1286 [evidence showed that when mentally disabled
employee returned from leave, employer, who knew employee needed
accommodation but did not know how to ask for it failed to obtain information
from employee or his psychiatrist regarding accommodation before discharging
employee hours before he requested leave].) In the remaining cases, the court
concluded that summary judgment in the employer’s favor was improper where
there were triable issues whether the employee requested an accommodation
before the termination decision. (Criado v. IBM Corp. (1st Cir. 1998) 145 F.3d
437, 440, 443-445 [evidence showed that employer terminated employee without
considering employee’s accommodation request due to communication breakdown
between employee’s doctor and employee prior to discharge decision]; Fromm-
Vane v. Lawnwood Med. Ctr., Inc. (S.D. Fla. 1997) 995 F.Supp. 1471, 1477
[evidence raised triable issues regarding date of termination decision].) Here, there
are no triable issues whether prior to the termination decision, Galvan requested an
accommodation or triggered the interactive process. In sum, summary
adjudication was properly granted on both of his “reasonable accommodation”
claims. (King, supra, 152 Cal.App.4th at pp. 442-444; Jensen, supra, 85
Cal.App.4th at p. 263.)

3. Discrimination Claim
We turn to Galvan’s discrimination claim. Under FEHA, discrimination
claims, including those based on disability discrimination, are ordinarily evaluated
in light of a three-stage burden shifting test. (Wills v. Superior Court (2011) 195

32
Cal.App.4th 143, 159 (Wills); see Guz v. Bechtel (2000) 24 Cal.4th 317 (Guz).)
Under the test, had Galvan reached trial on his claim, he “would . . . have borne the
initial burden of proving unlawful discrimination, under well-settled rules of order
of proof: ‘[T]he employee must first establish a prima facie [showing] of wrongful
discrimination. If []he does so, the burden shifts to the employer to show a lawful
reason for its action. Then the employee has the burden of proving the proffered
justification is mere pretext.’ [Citations.]” (Martin v. Lockheed Missiles & Space
Co. (1994) 29 Cal.App.4th 1718, 1730.)
Here, Costco sought summary adjudication regarding Galvan’s
discrimination claim on two grounds: (1) that he could make no prima facie
showing of discrimination due to Costco’s ignorance of his disability (see
Brundage, supra, 57 Cal.App.4th at pp. 236-237 [disability discrimination claim
failed absent evidence that employer was aware of disability]); and (2) that there
was a legitimate, nondiscriminatory basis for its decision to terminate him.
Because the trial court properly rejected the first ground (see pt. D.1., ante), we
direct our attention to the second ground.
To establish a legitimate, nondiscriminatory basis for discharging Galvan,
Costco relied on its showing related to Galvan’s “reasonable accommodation”
claims. Costco contended that its decision to discharge was predicated solely on
Galvan’s performance. According to Costco, Galvan’s persistent tardiness, which
predated his FMLA leave, disrupted operations at the Simi Valley warehouse after
his leave, as did his failure to perform key tasks during his shifts. Although his
supervisors repeatedly met with him to resolve his performance deficiencies, he
did not do so. Furthermore, as discussed above (see pt. D.2. iii, ante), Galvan
neither requested an accommodation nor cooperated with his supervisors to
identify some possible accommodation. In response, Galvan did not attempt to
identify evidence establishing that Costco’s proffered reasons were a pretext for

33
discrimination. Rather, before the trial court, Galvan argued only that under
section 12940, subdivision (a)(1), as a matter of law, termination for disability-
related conduct is termination “because of” the disability. On appeal, Galvan
10
reiterates that contention.
The trial court concluded that Costco tendered legitimate nondiscriminatory
reasons for the termination, and that Galvan failed to raise triable issues related to
pretext or the existence of a discriminatory motive. In so concluding, the court
rejected Galvan’s contention that Costco’s performance-based reasons constituted
disability discrimination as a matter of law. As explained below, we agree with
those determinations.
As our Supreme Court has elaborated, “‘legitimate’ reasons [citation] in this
context are reasons that are facially unrelated to prohibited bias, and which, if true,
would thus preclude a finding of discrimination. [Citations.]” (Guz, supra, 24
Cal.4th at p. 358, italics deleted.) Thus, if an employer’s reasons for its conduct
are not discriminatory, they “need not necessarily have been wise or correct.
[Citation.] While the objective soundness of an employer’s proffered reasons
supports their credibility . . . , the ultimate issue is simply whether the employer
acted with a motive to discriminate illegally.” (Ibid.) Because the reasons offered
for Costco’s termination decision were not discriminatory, they constitute a
facially proper basis for that decision.
The burden on summary judgment thus shifted to Galvan to demonstrate that
Costco’s “actual motive was discriminatory.” (Guz, supra, 24 Cal.4th at p. 361.)

10
Galvan’s reply brief suggests there are triable issues regarding the gravity of his
performance deficiencies. By failing to raise the argument in his opening brief, he has
forfeited the contention. (Campos v. Anderson (1997) 57 Cal.App.4th 784, 794, fn. 3; 9
Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 701, pp. 769-771.)

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To carry that burden, Galvan was required to offer “substantial evidence that the
employer’s stated nondiscriminatory reason for the adverse action was untrue or
pretextual, or evidence the employer acted with a discriminatory animus, or a
combination of the two, such that a reasonable trier of fact could conclude the
employer engaged in intentional discrimination.” (Hersant v. Department of
Social Services (1997) 57 Cal.App.4th 997, 1005.) As the trial court correctly
noted, Galvan failed to do so.
We reject Galvan’s contention that under the circumstances of this case,
Costco’s performance-based reasons for its decision was discrimination as a matter
of law. For the reasons discussed above (see pt. D.2. iii, ante) under FEHA,
Galvan was obliged to trigger the interactive process -- by a request, or in some
other suitable manner -- and participate in it in good faith; he did not do so.
Accordingly, the issue presented is whether Costco’s performance-based reasons
for discharging Galvan constituted discrimination when he failed to make his need
for an accommodation known.
As no reported decision has addressed that issue under FEHA, we look to
federal decisions regarding the ADA. In Siefken v. Village of Arlington Heights
(7th Cir. 1995) 65 F.3d 664, 666 (Siefken), a municipality hired a police officer
with diabetes believing that he had the condition under control. The officer failed
to monitor his condition and blacked out while driving a patrol car, but was pulled
over before he caused any damage. (Id. at p. 665.) After his discharge, he initiated
a discrimination action under the ADA, which was dismissed for failure to state a
claim. (Siefken, supra, 65 F.3d at p. 666.) In affirming that ruling, the Seventh
Circuit noted that the only accommodation the officer proposed was requested after
his termination, namely, a “‘second chance’” at controlling his condition. (Id. at
pp. 666-667.) The Seventh Circuit stated: “[W]hen an employee knows that he is
afflicted with a disability, needs no accommodation from his employer, and fails to

35
meet ‘the employer’s legitimate job expectations’ [citation] due to his failure to
control a controllable disability, he cannot state a cause of action under the ADA.”
(Id. at p. 667.)
We reach the same conclusion here regarding Galvan’s FEHA claim. In
interpreting FEHA, we seek a reasonable interpretation that is consistent with the
apparent legislative intent, “‘and which, when applied, will result in wise policy
rather than mischief or absurdity.’” (Dyna-Med, Inc. v. Fair Employment &
Housing Com. (1987) 43 Cal.3d 1379, 1392, quoting Honey Springs Homeowners
Assn. v. Board of Supervisors (1984) 157 Cal.App.3d 1122, 1136, fn. 11.) Here,
there is evidence that Costco knew Galvan was taking depression medication that
influenced his performance. Nonetheless, as explained above (see pt. D.2.iii,
ante), under the circumstances presented here, Galvan had the burden under FEHA
of establishing his need for an accommodation. Prior to Costco’s termination
decision, Galvan requested no accommodation or change in his duties to allow him
to address the performance deficiencies repeatedly identified by Costco and
acknowledged by Galvan himself. He did not trigger an interactive process, and
failed to participate adequately in the interactive process that Costco nonetheless
conducted.
In view of Siefken, Costco’s performance-based reasons for discharging
Galvan did not constitute discrimination under FEHA. To conclude otherwise
would be to hold that employees with a known disability who neither request an
accommodation nor implement the interactive process, despite an adequate
opportunity to do so, may not be discharged for deficient job performance when
their disability influences their performance. Because that interpretation of FEHA
would place an unreasonable burden on employers, we reject it. (Dyna-Med, Inc.
v. Fair Employment & Housing Com., supra, 43 Cal.3d at p. 1392.)

36
 Galvan’s reliance upon certain federal decisions for the contrary position is
misplaced. In several of those cases, the court concluded that summary judgment
in the employer’s favor was improper on the disabled employee’s discrimination
claim, notwithstanding the employer’s evidence that it had performance-based
reasons for its employment decision, when there was evidence that the employee
requested an accommodation or initiated the interactive process before the
11
decision. In the remaining cases, the court concluded that absent special

11
McMillan v. City of New York (2d. Cir. 2013) 711 F.3d 120, 128-129 [reversing
summary judgment in employer’s favor on ADA discrimination claim after determining
that triable issue existed whether employer failed to accommodate mental disability];
Dark v. Curry County (9th Cir. 2006) 451 F.3d 1078, 1088-1089 [reversing summary
judgment in employer’s favor on ADA discrimination claim after employee, a heavy
equipment operator, was discharged following an epileptic seizure, when employee
proposed accommodations to permit him to retain position]; Humphrey, supra, 239 F.3d
at pp. 1138-1140 [reversing summary judgment in employer’s favor on ADA
discrimination claim after determining that triable issues existed whether employer failed
to accommodate mental disability; noting that “[t]he link between the disability and
termination is particularly strong where it is the employer’s failure to reasonably
accommodate a known disability that leads to discharge for performance inadequacies
resulting from that disability”]; Ward v. Massachusetts Health Research Institute (1st Cir.
2000) 209 F.3d 29, 37-38 [reversing summary judgment in employer’s favor on ADA
discrimination claim after determining that triable issues existed whether employer failed
to accommodate disability]; Borkowski v. Valley Cent. School Dist. (2d Cir. 1995) 63
F.3d 131, 142-144 [same; noting that “[f]ailure to consider the possibility of reasonable
accommodation . . . , if it leads to discharge for performance inadequacies . . . , amounts
to a discharge solely because of the disabilities”]; Ambrose v. J. B. Hunt Transport, Inc.
(D. Or. 2014, Feb. 13, 2014, Case No. 3:12-cv-01740 - HU) 2014 U.S. Dist. LEXIS
18361, *44-*59 [declining to grant summary judgment in employer’s favor on Oregon
state law disability discrimination claim after determining that triable issues existed
whether employer failed to accommodate disability and engage in interactive process];
Brown v. City of Salem (D. Or., Feb. 27, 2007, Civil No. 04-1541-HA) 2007 U.S. Dist.
LEXIS 14738, *9-*23 [declining to grant summary judgment in employer’s favor on
ADA disability discrimination claim, as there were triable issues whether employer
discharged employee for sleeping on the job caused by his involuntary “microsleeps”
disorder, for which the employee had sought and received accommodations]; Diaz, supra,
(Fn. continued on next page.)

37
conditions, mentally disabled employees may not be discharged for disability-
caused misconduct unrelated to the performance standards for the employee’s
12
job. The cases thus address factual circumstances not presented here.
Galvan also directs our attention to Wills. There, a court clerk who suffered
from bipolar disorder controlled her condition through psychiatric care and
medication (Wills, supra, 195 Cal.App.4th at p. 149.) Her employer was aware of
her disorder, as she took several medical leaves to deal with it. (Ibid.) After she
made threatening remarks to some employees, she took a medical leave, during
which she sent threatening e-mails to other employees. (Id. at pp. 149-151.) When
she returned from the leave, she was discharged for making the threats. (Id. at
pp. 151-153.) After she initiated a discrimination action under FEHA, the trial

373 F.Supp.2d at pp. 1062, 1064-1065 [declining to grant summary judgment in
employer’s favor on FEHA disability discrimination claim after determining that triable
issues existed whether employer failed to accommodate disability and engage in
interactive process].)
12
Gambini v. Total Renal Care, Inc. (9th Cir. 2007) 486 F.3d 1087, 1093, 1094
[concluding that under Washington discrimination law, mentally disabled employee
discharged for emotional outburst was entitled to jury instruction that “[c]onduct
resulting from a disability is part of the disability and not a separate basis for
termination,” in order to permit jury to assess whether employee’s “personality[,] and not
her work product[,]” motivated termination]; Den Hartog v. Wasatch Academy (10th Cir.
1997) 129 F.3d 1076, 1085-1086 & fn. 8 [concluding that under the ADA, mentally
disabled employees may be held to legitimate performance criteria when given the
opportunity to do so “by reasonable accommodation,” but that employers must otherwise
tolerate “eccentric or unusual conduct” caused by the disability]; Equal Empl.
Opportunity Commision v. Walgreen Co. (N.D. Cal., Apr. 11, 2014, Case No. 11-cv-
04470-WHO) __ ___ F.Supp.2d __, __ [2014 U.S. Dist. LEXIS 52061, *24-*32]
[declining to grant summary judgment in employer’s favor on ADA disability
discrimination claim, notwithstanding employer’s evidence it fired diabetic employee
who took food without prior payment to deal with sudden hypoglycemic episode, when
there were triable issues whether employer made adequate accommodation for
employee’s known need to resolve such episodes].)

38
court granted summary judgment on her claims. (Wills, supra, at pp. 152-153.) In
affirming that ruling, the appellate court held that “FEHA does not prohibit an
employer from distinguishing between disability-caused misconduct and the
disability itself when the misconduct involves threats or violence against
coworkers . . . .” (Id. at p. 167.) The court limited its holding, stating that it
“express[ed] no opinion on whether FEHA permits an employer to distinguish
between disability-caused misconduct and the disability itself in any factual setting
. . . .” (Id. at p. 166.) Accordingly, Wills cannot reasonably be regarded as
construing FEHA to prohibit Costco from discharging Galvan under the
circumstances presented here. In sum, the trial court properly granted summary
adjudication on Galvan’s discrimination claim.

4. Other Claims
In view of the conclusions discussed above, summary adjudication was also
properly granted on Galvan’s other claims. His FEHA claim for failure to prevent
discrimination is fatally defective for want of a showing of actual discrimination.
(Scotch, supra, 173 Cal.App.4th at p. 1021; Trujillo v. North County Transit Dist.
(1998) 63 Cal.App.4th 280, 289.) For similar reasons, his claim for wrongful
termination in violation of public policy fails, as it is predicated on the same facts
as his FEHA claims. (See Avila, supra, 165 Cal.App.4th at p. 1261; Nelson v.
United Technologies (1999) 74 Cal.App.4th 597, 612-613.) Finally, summary
adjudication on his underlying claims precludes his recovery of punitive damages.
(See Cates Construction, Inc. v. Talbot Partners (1999) 21 Cal.4th 28, 60.)

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 DISPOSITION
The judgment is affirmed. Costco is awarded its costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MANELLA, J.

We concur:

WILLHITE, Acting P. J.

EDMON, J.*

*Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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