Gilberto Santillan v. USA Waste of California

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

GILBERTO SANTILLAN, an No. 15-55238
individual,
Plaintiff-Appellant, D.C. No.
2:14-cv-00335-AB-JCG
v.

USA WASTE OF CALIFORNIA, OPINION
INC., a Delaware Corporation,
Defendant-Appellee.

Appeal from the United States District Court
for the Central District of California
Andre Birotte, Jr., District Judge, Presiding

Argued and Submitted December 7, 2016
Pasadena, California

Filed April 7, 2017

Before: Harry Pregerson, Jacqueline H. Nguyen,
and John B. Owens, Circuit Judges.

Opinion by Judge Pregerson
2 SANTILLAN V. USA WASTE OF CAL.

SUMMARY*

Employment Discrimination

The panel reversed the district court’s grant of summary
judgment in favor of USA Waste of California, Inc. on
Gilberto Santillan’s wrongful termination claim under
California law based on age discrimination and retaliation;
affirmed the district court’s denial of Santillan’s request for
leave to amend the complaint; and remanded for further
proceedings.

The panel held that the district court erred in holding that
Santillan failed to establish a prima facie age discrimination
claim. The panel further held that USA Waste failed to rebut
the presumption of unlawful discrimination because it did not
offer a legitimate reason for firing Santillan when USA
Waste’s only proffered reason was Santillan’s failure to
provide proof of his legal right to work in the United States
as required by the Immigration Reform and Control Act of
1986 (IRCA). Specifically, the panel held that IRCA
exempted Santillan from the proof of employment eligibility
that USA Waste demanded. The panel also held that making
Santillan’s reinstatement contingent upon such proof would
violate California public policy.

The panel held that Santillan established a prima facie
retaliation case and a presumption of unlawful retaliation.
Specifically, the panel held that the district court erred in
concluding that Santillan did not engage in protected activity

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 SANTILLAN V. USA WASTE OF CAL. 3

when he used an attorney to negotiate his reinstatement. The
panel held that California public policy protected Santillan’s
right to representation by an attorney to negotiate the terms
and conditions of employment. The panel further held that
Santillan established a nexus between his termination and his
protected activity where USA Waste fired Santillan because
he was represented by his attorney at the settlement
agreement negotiations.

Finally, the panel held that the district court did not abuse
its discretion by denying Santillan’s request for leave to
amend the complaint. The panel held that Santillan failed to
show he was diligent in seeking to amend the complaint
because his request to amend came eight months after the
deadline for making such a request.

COUNSEL

Holly Noelle Boyer (argued), and Andrew N. Chang, Esner
Chang & Boyer, Pasadena, California; Louanne Masry and
John C. Taylor, Taylor & Ring LLP, Los Angeles, California;
for Plaintiff-Appellant.

Christopher J. Boman (argued), Fisher & Phillips LLP, Irvine,
California; Kristen J. Nesbit, Fisher & Phillips LLP, Los
Angeles, California; for Defendant-Appellee.
4 SANTILLAN V. USA WASTE OF CAL.

OPINION

PREGERSON, Circuit Judge:

INTRODUCTION

This case arises from a wrongful employment termination
dispute between Gilberto Santillan, a 53-year-old garbage
truck driver, and his employer of 32 years, USA Waste of
California, Inc. (“USA Waste”). Santillan filed this action
against USA Waste alleging a wrongful termination claim
based on age discrimination and retaliation. The district court
granted summary judgment in favor of USA Waste.

We have jurisdiction under 28 U.S.C. § 1291. We
reverse. We hold that the district court erred by granting
summary judgment in favor of USA Waste because
(1) Santillan established a prima facie case under both his age
discrimination and retaliation theories; and (2) USA Waste
failed to introduce any evidence that it had a legitimate
reason for firing him.

We also hold that the district court did not abuse its
discretion when it denied Santillan’s oral request for leave to
amend the complaint eight months after the filing deadline.

FACTUAL BACKGROUND

Gilberto Santillan started working for USA Waste as a
residential garbage truck driver in 1979.1 For 32 years, he
serviced the community of Manhattan Beach, California.

1
Unless otherwise indicated, this factual background contains facts
that either are undisputed or USA Waste has conceded are immaterial and
therefore do not foreclose summary judgment.
 SANTILLAN V. USA WASTE OF CAL. 5

Exemplary Employee

In March 2011, USA Waste’s garbage collection contract
with the City of Manhattan Beach was up for renewal. In
presenting its case to the Manhattan Beach City Council,
USA Waste specifically highlighted Santillan’s exemplary
service to the community. After hearing from Manhattan
Beach homeowners who praised Santillan’s exemplary
service to their community, the Manhattan Beach City
Council renewed USA Waste’s contract.

December 5, 2011, Termination

Santillan was rarely disciplined during his first 30 years
at USA Waste. But this situation changed in January 2009,
after USA Waste assigned Steve Kobzoff as Santillan’s new
Manhattan Beach route manager.

Between January 2009 and July 2010, Kobzoff attempted
to discipline Santillan six times. The parties dispute whether
these “write ups” violated the procedural protections afforded
by USA Waste’s collective bargaining agreement. USA
Waste does not defend its termination of Santillan based on
these six disputed write-ups.

On December 5, 2011, USA Waste fired Santillan for the
first time. USA Waste contends that it fired Santillan then
because he had four accidents in a 12-month period for which
Kobzoff disciplined Santillan using the procedures required
by USA Waste’s collective bargaining agreement. Santillan
disputes both that he had four accidents and that USA Waste
followed the procedures required by the collective bargaining
agreement.
6 SANTILLAN V. USA WASTE OF CAL.

Another employee, Janson Vartanian, replaced Santillan.
At summary judgment, USA Waste submitted a declaration
from its human resources employee Maria Diaz stating that
the employee who replaced Santillan was “over 40 years of
age” and had eleven years experience driving garbage trucks.

Santillan testified that he was one of five older Spanish-
speaking employees fired or suspended once Kobzoff was
assigned as USA Waste’s Manhattan Beach route manager.
Although Santillan could not recall the names of the four
other Spanish-speaking employees, Kobzoff corroborated
Santillan’s statement by identifying Jesus Zamora and Rojilio
Mejia as two such Spanish-speaking employees who were
terminated.

Public Outcry

On December 7, 2011, pursuant to the collective
bargaining agreement and with the assistance of his attorney,
Santillan filed a formal grievance against USA Waste
challenging his December 5, 2011, termination.

After Santillan’s formal grievance was filed, USA Waste
received hundreds of letters from Manhattan Beach
homeowners who live in the area served by Santillan,
demanding that USA Waste reinstate Santillan’s employment.
In their letters, the homeowners reminded USA Waste that it
succeeded in securing the renewal of its important garbage
collection contract with Manhattan Beach in March 2011,
because the homeowners came out in droves to support
Santillan, their “First Class” residential garbage truck driver.

The homeowners demanded that USA Waste reinstate
Santillan because he “positively impacted every family on
 SANTILLAN V. USA WASTE OF CAL. 7

[the] street,” and was “extremely helpful,” going above and
beyond his responsibilities. One homeowner made it a point
to introduce her sons to Santillan because he “works hard,
and has a beautiful spirit and attitude,” and “in terms of class
and integrity and a radiant personality there is no one in the
world who can hold a candle to Gilberto [Santillan].” In
contrast, days after Santillan was fired, Manhattan Beach
residents reported being frustrated finding their trash cans
emptied at dusk and left “sitting in[] the street – creating a
hazard to oncoming cars.”

The homeowners’ sentiments were published in a local
newspaper, which also included a story from a homeowner
whose son dressed up as Santillan for Halloween because he
considers Santillan “a hero.”

The May 2012, Settlement Agreement

On May 17, 2012, in the presence of USA Waste’s
attorney, Santillan’s attorney, and a union representative,
USA Waste and Santillan signed a “Settlement Agreement
and Last Chance Agreement” (“Settlement Agreement”), in
which USA Waste agreed to reinstate Santillan’s employment
if he passed the California Department of Transportation drug
test and physical exam, a criminal background check, and “e-
Verify.”2 In exchange, Santillan agreed to dismiss the

2
The term “e-Verify” was not defined in the Settlement Agreement.
Our case law has described “e-Verify” as an “electronic verification
system” that is “voluntary” under federal law and is used “to check the
work-authorization status of employees through federal records.”
Chicanos Por La Causa, Inc. v. Napolitano, 558 F.3d 856, 860 (9th Cir.
2009), aff’d, Chambers of Commerce of U.S. v. Whiting, 563 U.S. 582
(2011). USA Waste argues that this term meant Santillan agreed to abide
by a regulation under the Immigration Reform and Control Act of 1986
8 SANTILLAN V. USA WASTE OF CAL.

December 7, 2011, grievance he filed against USA Waste.

USA Waste Fails to Reinstate Santillan

Santillan successfully completed the California
Department of Transportation drug test, the physical exam,
and the criminal background check.

In response, USA Waste’s human resources employee
Maria Diaz sent Santillan a letter informing him that his first
day back at work would be July 16, 2012. The letter also told
Santillian, “you will need to complete an I-9 form and show
documentation of your right to work in the U.S.” Diaz’s
letter to Santillan was written in English, even though USA
Waste was aware that Santillan communicated in Spanish.
The letter only included the fifth page of the employment
eligibility verification Form I-9 (“Form I-9”), which was
printed in English even though it was available in Spanish.3

Santillan reported to work on July 16, 2012, with his
driver’s license and social security card to complete the Form
I-9. However, Diaz informed Santillan that he also needed a

(“IRCA”) addressing the documentation that new employees submit to
show their authorization to work in the United States. However, the IRCA
contains two provisions that, for the reasons discussed below, exempt
Santillan from this requirement. See discussion, infra, Part II.B.1.
3
The operative version of the Form I-9 was five pages when USA
Waste fired Santillan on July 24, 2012. See Form I-9 Employment
Eligibility Verification, OMB No. 1615-0047 (expired 08/31/12).
 SANTILLAN V. USA WASTE OF CAL. 9

work authorization number and its expiration date. Santillan
did not have that information with him. Diaz asked Santillan
to bring that information to work the next day.4

On each of the following two days, Santillan attempted to
provide the requested information by giving Diaz a letter with
an identification number. According to Diaz, Santillan was
unable to provide the expiration date and she could not
complete electronic employment verification of his work
authorization without the expiration date.

On the third day, Diaz sent Santillan home. Diaz testified
that she “told him he couldn’t work, and that we would be in
contact.” Six days later, on July 24, 2012, USA Waste sent
a letter to Santillan informing him that USA Waste was firing
him because he did not provide “proof of your legal right to
work in the United States within three days of hire, as
required by the Immigration Control and Reform Act of 1986,
[sic][and] the Settlement Agreement.”

PROCEDURAL BACKGROUND

On December 4, 2013, Santillan filed a complaint against
USA Waste in Los Angeles County Superior Court, alleging
wrongful termination in violation of California public policy.
Santillan advanced two different theories for this claim based
on the violation of two different public policies: (1) age

4
USA Waste argues that it needed Santillan’s information within
three days because the IRCA requires that an employer complete the
verification of a new employee’s work authorization status within the new
employee’s first three days of work. See 8 C.F.R. § 274a.2(b)(1)(ii).
However, as discussed below, Santillan was exempt from this regulation
because he was continuing his employment. See discussion, infra, Part
II.B.1.
10 SANTILLAN V. USA WASTE OF CAL.

discrimination in violation of the public policy evinced in the
Fair Employment and Housing Act (“FEHA”), Cal. Gov’t
Code § 129405; and (2) that he was wrongfully terminated in
retaliation for having an attorney represent him during the
Settlement Agreement negotiations with USA Waste.6 USA
Waste removed this case to federal court.

On November 14, 2014, USA Waste filed a summary
judgment motion. The district court held a hearing on
January 12, 2015. At the summary judgment hearing,
Santillan’s attorney asked the court for leave to amend the
complaint to add a breach of contract claim.

On January 16, 2015, the district court: (1) granted
summary judgment in favor of USA Waste on Santillan’s
wrongful termination claim based on age discrimination,
holding that Santillan failed to establish a prima facie case;
(2) granted summary judgment in favor of USA Waste on
Santillan’s wrongful termination claim based on retaliation,
holding that Santillan’s failure to provide the documentation
that USA Waste demanded in the three-day time frame it
required was a “legitimate[], non-retaliatory reason for the

5
It is an unlawful employment practice for an employer to
discriminate against a person based on “race, religious creed, color,
national origin, ancestry, physical disability, mental disability, medical
condition, genetic information, marital status, sex, gender, gender identity,
gender expression, age, sexual orientation, or military and veteran status.”
Cal. Gov’t Code § 12940.
6
Santillan also alleged the following claims: (1) failure to pay
overtime, Cal. Lab. Code § 1194; (2) waiting time penalties, Cal. Lab.
Code §§ 201–03; and (3) failure to provide meal and rest breaks, Cal. Lab.
Code §§ 226.7, 512, 1174. However, Santillan later abandoned these
claims during the hearing on USA Waste’s summary judgment motion.
These claims are not relevant to this appeal.
 SANTILLAN V. USA WASTE OF CAL. 11

July 2012 termination;” and (3) denied Santillan’s request for
leave to amend.

Santillan timely appealed these rulings.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction under 28 U.S.C. § 1291. We review
de novo a district court’s grant of summary judgment. Albino
v. Baca, 747 F.3d 1162, 1168 (9th Cir. 2014) (en banc).
Summary judgment is appropriate where “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). In our
de novo review of the district court’s summary judgment
ruling, we view the evidence in the light most favorable to the
non-moving party. Albino, 747 F.3d at 1168.

We review a district court’s denial of leave to amend for
abuse of discretion. Crowley v. Bannister, 734 F.3d 967, 977
(9th Cir. 2013).

DISCUSSION

Santillan appeals the district court’s (1) grant of summary
judgment in favor of USA Waste on Santillan’s wrongful
termination claim under an age discrimination theory;
(2) grant of summary judgment in favor of USA Waste on
Santillan’s wrongful termination claim based on retaliation
for using an attorney; and (3) denial of Santillan’s request for
leave to amend the complaint.
12 SANTILLAN V. USA WASTE OF CAL.

I. McDonnell Douglas’s three-prong burden-shifting
framework

In a non-mixed motive case such as this, a California
wrongful termination claim in violation of public policy is
analyzed under the three-prong burden-shifting framework
from McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). See Diego v. Pilgrim United Church of Christ,
231 Cal. App. 4th 913, 930 (Ct. App. 2014); see also Earl v.
Nielsen Media Research, Inc., 658 F.3d 1108, 1112, 1118
(9th Cir. 2011) (applying burden-shifting analysis to wrongful
termination claim based on age discrimination in violation of
FEHA and public policy).

Under the first prong of the McDonnell Douglas
framework, Santillan must establish a prima facie case under
either his age discrimination or retaliation theory. See Earl,
658 F.3d at 1112; Stegall v. Citadel Broad Co., 350 F.3d
1061, 1065–66 (9th Cir. 2003). If Santillan establishes a
prima facie case, there is a “presumption of discrimination.”
Reid v. Google, Inc., 50 Cal. 4th 512, 520 n.2 (2010);
Yanowitz v. L’Oreal USA, Inc., 36 Cal. 4th 1028, 1042
(2005); see also Nidds v. Schindler Elevator Corp., 113 F.3d
912, 917 (9th Cir. 1996).

Then, under the second prong, the burden of production
shifts to USA Waste to rebut the presumption by producing
admissible evidence that it had a legitimate, non-
discriminatory reason for its adverse employment action. See
Guz v. Bechtel Nat’l, Inc., 24 Cal. 4th 317, 355–56 (2000);
see also Earl, 658 F.3d at 1112.

If USA Waste satisfies its burden, then, under the third
prong, Santillan must show that the reason advanced by USA
 SANTILLAN V. USA WASTE OF CAL. 13

Waste constitutes mere pretext, or he must produce other
evidence of intentional discrimination. Reid, 50 Cal. 4th at
520 n.2; see also Earl, 658 F.3d at 1112; Winarto v. Toshiba
Am. Elecs. Components, Inc., 274 F.3d 1276, 1284 (9th Cir.
2001).

Finally, “the plaintiff in an employment discrimination
action need produce very little evidence in order to overcome
an employer’s motion for summary judgment.” Diaz v. Eagle
Produce Ltd. P’ship, 521 F.3d 1201, 1207 (9th Cir. 2008)
(quoting Chuang v. Univ. of Cal. Davis, Bd. of Trs., 225 F.3d
1115, 1124 (9th Cir. 2000)).

II. We reverse summary judgment in favor of USA Waste
on Santillan’s age discrimination claim

The district court erred when it evaluated Santillan’s age
discrimination theory in a vacuum by not considering any
events occurring before USA Waste fired Santillan for the
first time on December 5, 2011.7 In analyzing Santillan’s
claim based on age discrimination, we will consider the facts
leading up to and including Santillan’s July 24, 2012,
termination.

7
In reviewing a FEHA claim, this court may rely on related federal
cases interpreting the Age Discrimination in Employment Act (“ADEA”),
29 U.S.C. §§ 621 et seq., and Title VII of the Civil Rights Act, 42 U.S.C.
§§ 2000e et seq. See Nidds, 113 F.3d at 916.
14 SANTILLAN V. USA WASTE OF CAL.

A. The district court erred in holding that Santillan
failed to establish a prima facie age discrimination
case

To state a prima facie age discrimination case under
FEHA, Santillan must establish that: (1) he was a member of
a protected class (i.e., 40 years of age or older); (2) he was
performing competently in the position he held; (3) he
suffered an adverse employment action, such as termination;
and (4) “some other circumstance that suggests
discriminatory motive.” See Guz, 24 Cal. 4th at 355.

The district court did not consider whether Santillan
established the first three elements of a prima facie age
discrimination case. It is undisputed that he did, as Santillan:
(1) was a member of a protected class (i.e., 40 years of age or
older) given that he was 53 years old; (2) was performing
competently in the position he had; and (3) suffered an
adverse employment action because USA Waste fired him.

The district court found that Santillan could not establish
the fourth element: some other circumstance that suggests a
discriminatory motive. We disagree. Evaluating the fourth
element “with some flexibility,” Nidds, 113 F.3d at 917, and
construing the facts in the light most favorable to Santillan,
we conclude that he established a prima facie age
discrimination case. Therefore, there is a presumption that
USA Waste unlawfully discriminated against Santillan. See
Reid, 50 Cal. 4th. at 520 n.2; see also Nidds, 113 F.3d at 917.

Two pieces of evidence lead us to this conclusion. First,
Santillan testified that he was one of five older Spanish-
speaking employees who were fired or suspended once
Kobzoff was assigned as USA Waste’s Manhattan Beach
 SANTILLAN V. USA WASTE OF CAL. 15

route manager.8 See Coleman v. Quaker Oats Co., 232 F.3d
1271, 1281 (9th Cir. 2000) (holding that an employee
established a prima facie age discrimination case because she
was among a group of older employees that were terminated
at a higher rate than younger employees). Santillan could not
remember the other Spanish-speaking employees’ names, but
Kobzoff identified Jesus Zamora and Rojilio Mejia as two
Spanish-speaking employees who were terminated. USA
Waste identified no other supervisees of Kobzoff who were
fired or suspended after Kobzoff became Santillan’s route
manager.

Second, there is a potential thirteen-year age gap between
Santillan and his replacement, Vartanian, who also has
21 fewer years experience as a garbage truck driver.9 See

8
An employee’s “albeit uncorroborated and self-serving” testimony
is sufficient to establish a prima facie workplace discrimination case if a
reasonable jury could infer discrimination from the employee’s testimony.
Nigro v. Sears, Roebuck & Co., 784 F.3d 495, 498 (9th Cir. 2015)
(holding that an employee’s self-serving declaration and deposition
testimony established a prima facie case of unlawful discrimination and
created a genuine dispute of material fact whether the employer’s reason
for firing the employee was pretextual). This is because, “[w]hen judging
the evidence at the summary judgment stage, the district court is not to
make credibility determinations or weigh conflicting evidence, and is
required to draw all inferences in a light most favorable to the nonmoving
party.” Musick v. Burke, 913 F.2d 1390, 1394 (9th Cir. 1990); see also
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (“The evidence
of the non-movant is to be believed, and all justifiable inferences are to be
drawn in his favor.”).
9
USA Waste’s human resources employee Maria Diaz submitted a
declaration in which she provided Santillan’s and Vartanian’s personal
information obtained through USA Waste’s computerized human
resources records. Diaz provided detailed information about Santillan,
such as his employment start date, pay rate, and home address. In
16 SANTILLAN V. USA WASTE OF CAL.

Schechner v. KPIX-TV, 686 F.3d 1018, 1023 (9th Cir. 2012)
(holding that an employee can establish a prima facie age
discrimination case with evidence that his or her replacement
was substantially younger with equal or inferior
qualifications); see also France v. Johnson, 795 F.3d 1170,
1174 (9th Cir. 2015) (age difference of ten years or more
between a plaintiff and his or her replacement is
presumptively substantial); cf. Douglas v. Anderson, 656 F.2d
528, 530, 533 (9th Cir. 1981) (replacing a 54-year-old
bookstore manager with someone five years younger was
sufficient to establish a prima facie case of age
discrimination).

For the two reasons discussed above, the district court
overlooked “the flexibility these cases require and erred in
concluding that” Santillan failed to establish a prima facie
age discrimination case. Nidds, 113 F.3d at 917. Because
Santillan has established a prima facie age discrimination
case, there is “a presumption that [USA Waste] unlawfully
discriminated against [him].” Id. (citation omitted); see also
Reid, 50 Cal. 4th at 520 n.2. Therefore, the burden shifts to
USA Waste to rebut this presumption.

contrast, Diaz limited her description of Vartanian to the fact that he was
“over forty years old” and had worked as a residential garbage truck driver
for eleven years. That Diaz was aware of Vartanian’s age but chose not
to disclose more detail supports the inference that there exists a potentially
significant age gap between Santillan and Vartanian.
 SANTILLAN V. USA WASTE OF CAL. 17

B. USA Waste failed to rebut the presumption of
unlawful discrimination because it did not offer a
legitimate reason for firing Santillan

Under McDonnell Douglas’s second prong, USA Waste
bore the burden to produce admissible evidence of a
legitimate, non-discriminatory reason for firing Santillan.
Earl, 658 F.3d at 1112. USA Waste’s only proffered reason
for firing Santillan in July 2012 was that his “reinstatement
was contingent, in part, upon providing proof of [his] legal
right to work in the United States within three days of hire, as
required by the Immigration Control and Reform Act of 1986,
[sic] [and] [the] Settlement Agreement.”

However, USA Waste cannot rely on the IRCA or the
Settlement Agreement to establish that it is entitled to
summary judgment as a matter of law because, as explained
below: (1) the IRCA exempts Santillan from the proof of
employment eligibility that USA Waste demanded; and
(2) making Santillan’s reinstatement contingent upon such
proof would violate California public policy.

1. The IRCA does not require proof of
employment eligibility from Santillan

The IRCA requires employers review certain documents
at the hiring stage to confirm that new employees hired after
November 6, 1986, are authorized to work in the United
States. See 8 U.S.C. § 1324a(a)(1)–(4). As part of this
process, employers review certain documents specified by
statute to attest to the new employee’s employment eligibility
on a Form I-9. See id. at § 1324a(b); 8 C.F.R.
§ 274a.2(b)(1)(i). An employer may not seek “more or
different documents than are required under [the IRCA] or
18 SANTILLAN V. USA WASTE OF CAL.

refus[e] to honor documents tendered that on their face
reasonably appear to be genuine,” as doing so is an “unfair
immigration-related employment practice.” 8 U.S.C.
§ 1324b(a)(6); see also Rivera v. NIBCO, Inc., 364 F.3d
1057, 1073 (9th Cir. 2004).

In contrast to the IRCA’s mandate with respect to new
employees, two different IRCA regulations exempt Santillan
from providing the employment eligibility documents
demanded by USA Waste. First, the IRCA exempts Santillan
from having to provide proof of employment eligibility
because he was “continuing in his . . . employment [after
being] reinstated after disciplinary suspension for wrongful
termination . . . resolved through reinstatement or
settlement.” 8 C.F.R. § 274a.2(b)(1)(viii)(A)(5).10

10
The IRCA exemption provides in relevant part:

(viii) An employee will not be deemed to have hired an
individual for employment if the individual is
continuing in his or her employment and has a
reasonable expectation of employment at all times.

(A) An individual is continuing in his or her
employment in one of the following situations:

...

(5) An individual is reinstated after disciplinary
suspension for wrongful termination, found unjustified
by any court, arbitrator, or administrative body, or
otherwise resolved through reinstatement or
settlement[.]”

8 C.F.R. § 274a.2(b)(1)(viii)(A)(5) (emphasis added).
 SANTILLAN V. USA WASTE OF CAL. 19

Second, a different IRCA “grandfather” provision
exempts employees hired before November 7, 1986, from the
employment eligibility verification requirements applicable
at the hiring stage. Maka v. I.N.S., 904 F.2d 1351, 1360 (9th
Cir. 1990); see also 8 U.S.C. § 1324a(a)(4); 8 C.F.R.
§ 274a.7(a)(1). USA Waste hired Santillan in 1979, and even
though he was fired in 2011, his reinstatement thereafter
qualified him as a continuing employee, rather than a new
employee. See 8 C.F.R. § 274a.2(b)(1)(viii)(A)(5). Thus,
Santillan is exempt from the IRCA employment eligibility
verification requirement under this IRCA provision as well.

USA Waste cites no authority to the contrary. Instead, it
argues that “the law” required Santillan to provide in three
days the employment eligibility documents that USA Waste
demanded. But that is not what the law required, and an
employer’s incorrect view of the law is not a legitimate
reason for firing an employee.

2. USA Waste could not make Santillan’s
reinstatement contingent on verification of his
immigration status because doing so would
violate California public policy

USA Waste alternatively argues that firing Santillan
within three days of his reinstatement was permitted by the
Settlement Agreement provision that required that he pass “e-
Verify.” However, a contractual provision that contravenes
public policy, as expressed in a statute or implied from its
language, is “either void or unenforceable.” Akopyan v. Wells
Fargo Home Mortg., Inc., 215 Cal. App. 4th 120, 135–36 (Ct.
App. 2013). USA Waste’s interpretation of the Settlement
Agreement would violate the public policy expressed in
20 SANTILLAN V. USA WASTE OF CAL.

several California statutes. Therefore, the e-Verify provision
in the Settlement Agreement was unenforceable.

California provides that “[a]ll protections, rights, and
remedies available under state law, except any reinstatement
remedy prohibited by federal law,11 are available to all
individuals regardless of immigration status who have
applied for employment, or who are or who have been
employed, in this state.” Cal. Lab. Code § 1171.5(a)
(emphasis added);12 see also Incalza v. Fendi N. Am., Inc.,
479 F.3d 1005, 1009 (9th Cir. 2007); Salas v. Sierra Chem.
Co., 59 Cal. 4th 407, 425–26 (2014).

California “statutes leave no room for doubt about this
state’s public policy with regard to the irrelevance of
immigration status in enforcement of state labor,
employment, civil rights, and employee housing laws.”
Hernandez v. Paicius, 109 Cal. App. 4th 452, 460 (Ct. App.
2003), disapproved of on other grounds by People v.
Freeman, 47 Cal. 4th 993 (2010). Therefore, under
California public policy, USA Waste could not make
Santillan’s reinstatement remedy contingent upon verification
of his immigration status. See Akopyan, 215 Cal. App. 4th at
135–36 (disregarding an express contract term that was
contrary to public policy).

11
As discussed supra Part II.B.1., Santillan’s reinstatement remedy
is not prohibited by federal law because it was the result of the Settlement
Agreement. See 8 C.F.R. § 274a.2(b)(1)(viii)(A)(5).
12
See also Cal. Gov’t Code § 7285 (same); Cal. Civ. Code § 3339(b)
(“[N]o inquiry shall be permitted into a person’s immigration status except
where the person seeking to make this inquiry has shown by clear and
convincing evidence that this inquiry is necessary in order to comply with
federal immigration law.”).
 SANTILLAN V. USA WASTE OF CAL. 21

C. USA Waste failed to meet its burden as to
Santillan’s claim based on age discrimination

Because neither the IRCA nor the Settlement Agreement
justified firing Santillan, USA Waste failed to meet its burden
to show it had a legitimate, nondiscriminatory reason for
firing Santillan in July 2012. We therefore REVERSE the
district court’s grant of summary judgment on Santillan’s
wrongful termination claim arising from age discrimination.

III. We reverse summary judgment in favor of USA
Waste on Santillan’s retaliation claim

Santillan’s alternative theory for his wrongful termination
claim is that USA Waste fired him in July 2012, in retaliation
for having an attorney represent him during the Settlement
Agreement negotiations with USA Waste. California
retaliation claims follow the same McDonnell Douglas
burden-shifting framework as age discrimination claims.
Yanowitz, 36 Cal. 4th at 1042; Diego, 231 Cal. App. 4th at
930.

A. Santillan established a prima facie retaliation case
and a presumption of unlawful retaliation

Santillan can establish a prima facie case of retaliatory
wrongful termination in violation of public policy by showing
that: (1) having an attorney represent him during the
Settlement Agreement negotiations with USA Waste is
activity protected by California public policy; and (2) there
was a nexus between the public policy and his termination.
See Dep’t of Fair Emp’t & Hous. v. Lucent Techs., Inc.,
642 F.3d 728, 749 (9th Cir. 2011). As with the age
discrimination claim, if Santillan establishes a prima facie
22 SANTILLAN V. USA WASTE OF CAL.

retaliation case, there is a presumption that USA Waste
unlawfully retaliated against him. See Reid, 50 Cal. 4th at
520 n.2.

1. Santillan’s use of an attorney is activity
protected byCalifornia public policy

The district court concluded that Santillan did not engage
in protected activity when he used an attorney to negotiate his
reinstatement, reasoning that California public policy
recognizes a right to an attorney only in the collective
bargaining context. This conclusion is incorrect. For
decades, California courts have recognized a wrongful
termination claim based on the public policy reflected in
California Labor Code Section 92313 where an employer
retaliates against an employee who has “designated an
attorney to represent [him] for the purpose of negotiating the
terms and conditions of employment.” Montalvo v. Zamora,
7 Cal. App. 3d 69, 75 (Ct. App. 1970) (recognizing wrongful
termination where an employer fired workers shortly after
their attorney sent a letter demanding a minimum wage).
California courts have rejected the argument that such a claim
“applies only to collective bargaining.” Gelini v. Tishgart,
77 Cal. App. 4th 219, 223 (Ct. App. 1999). Because

13
“[T]he public policy of this State is declared as follows:
Negotiation of terms and conditions of labor should result from voluntary
agreement between employer and employees. . . . Therefore it is
necessary that the individual workman have full freedom of association,
self-organization, and designation of representatives of his own choosing,
to negotiate the terms and conditions of his employment, and that he shall
be free from the interference, restraint, or coercion of employers of labor,
or their agents, in the designation of such representatives or in self-
organization or in other concerted activities for the purpose of . . . other
mutual aid or protection.” Cal. Lab. Code § 923 (emphasis added).
 SANTILLAN V. USA WASTE OF CAL. 23

California public policy protects Santillan’s right to
representation by an attorney to negotiate the terms and
conditions of employment, he engaged in protected activity
when he was represented by an attorney during the Settlement
Agreement negotiations.

2. USA Waste fired Santillan because he was
represented by his attorney at the Settlement
Agreement negotiations

Santillan also established a nexus between his termination
in July 2012, and his protected activity because USA Waste
fired him roughly two months after an attorney represented
him during the Settlement Agreement negotiations with USA
Waste. “The causal link between a protected activity and the
alleged retaliatory action ‘can be inferred from timing alone’
when there is a close proximity between the two.” Thomas v.
City of Beaverton, 379 F.3d 802, 812 (9th Cir. 2004); see also
Nidds, 113 F.3d at 919 (holding that a prima facie case was
established where employee’s “layoff occurred only four
months after” he first engaged in protected activity by filing
a complaint and “only one month after he filed his second
complaint”); Flait v. N. Am. Watch Corp., 3 Cal. App. 4th
467, 478 (Ct. App. 1992) (finding nexus established where
employee “was terminated only a few months after” he
engaged in protected activity).

We hold that Santillan established a prima facie
retaliation case, which in turn gives rise to a presumption of
unlawful retaliation.
24 SANTILLAN V. USA WASTE OF CAL.

B. The district court erred in holding that USA Waste
provided a legitimate reason for firing Santillan

As discussed supra in Part II.B., USA Waste cannot rebut
the presumption that it retaliated against Santillan by relying
on the IRCA’s employment eligibility verification
requirements for new employees or the Settlement Agreement
as a legitimate reason for firing Santillan. These reasons for
firing Santillan are not legitimate because (1) the IRCA
exempts Santillan from these requirements since he was
continuing his employment with USA Waste because he was
reinstated as a result of a settlement, and (2) USA Waste
could not make Santillan’s reinstatement contingent upon
verification of his immigration status because doing so would
violate California public policy. See discussion supra Part
II.B.

C. USA Waste failed to meet its burden as to
Santillan’s claim based on retaliation
discrimination

For the foregoing reasons, we REVERSE the district
court’s grant of summary judgment in favor of USA Waste on
Santillan’s wrongful termination claim based on retaliation.

IV. The district court did not abuse its discretion by
denying Santillan’s request for leave to amend the
complaint

At the summary judgment hearing, Santillan’s attorney
orally requested leave to amend the complaint to add a breach
of contract claim.
 SANTILLAN V. USA WASTE OF CAL. 25

Santillan failed to show that he was diligent in seeking to
amend the complaint, as his request for leave to amend came
eight months after the deadline for making such a request.
See Johnson v. Mammoth Recreations, Inc., 975 F.2d 604,
609 (9th Cir. 1992) (“If [the moving] party was not diligent,
the inquiry should end.”). Morever, Santillan failed to show
good cause for modifying the previously issued scheduling
order. See Fed. R. Civ. P. 16(b)(4) (“A schedule may be
modified only for good cause and with the judge’s consent.”).

We therefore conclude that the district court did not abuse
its discretion by denying Santillan’s request for leave to
amend the complaint.

CONCLUSIONS

In sum, we REVERSE the district court’s grant of
summary judgment in favor of USA Waste on Santillan’s
wrongful termination claim based on age discrimination and
retaliation and REMAND for further proceedings consistent
with this opinion.14

We AFFIRM the district court’s denial of Santillan’s
request for leave to amend the complaint.

14
We leave to the district court to determine on remand whether
triable issues of fact remain that would preclude a grant of summary
judgment in favor of Santillan. See Albino, 747 F.3d at 1176–77
(reversing summary judgment for defendant and remanding with
instructions to enter summary judgment for plaintiff); Portsmouth Square,
Inc. v. S’holders Protective Comm., 770 F.2d 866, 869 (9th Cir. 1985);
Cool Fuel, Inc. v. Connett, 685 F.2d 309, 311 (9th Cir. 1982); see also
Fed. R. Civ. P. 56(f).
26 SANTILLAN V. USA WASTE OF CAL.

Costs shall be taxed against Defendant-Appellee USA
Waste of California, Inc.

REVERSED IN PART, AFFIRMED IN PART, and
REMANDED.