NOT FOR PUBLICATION FILED
DEC 26 2017
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RALPH VILLALOBOS, No. 16-55288
Plaintiff-Appellant, D.C. No.
2:15-cv-02808-R-PLA
v.
TWC ADMINISTRATION LLC, MEMORANDUM*
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Argued and Submitted December 6, 2017
Pasadena, California
Before: CANBY and REINHARDT, Circuit Judges, and BLOCK,** District
Judge.
*
This disposition is not appropriate for publication and is not precedent except as
provided by Ninth Circuit Rule 36-3.
**
The Honorable Frederic Block, United States District Judge for the Eastern District
of New York, sitting by designation.
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Ralph Villalobos (“Villalobos”) appeals the district court’s grant of
summary judgment in favor of TWC Administration LLC (“TWC”) on his state
law claims for disability and age discrimination, and wrongful termination in
violation of public policy under California’s Fair Employment and Housing Act
(“FEHA”). Cal. Gov’t Code § 12940. Villalobos served as a Direct Sales
Representative (“DSR”) for TWC and its predecessors for twenty-four years before
he was terminated in February 2014. Because “discrimination claims are
frequently difficult to prove without a full airing of the evidence and an
opportunity to evaluate the credibility of the witnesses,” McGinest v. GTE Serv.
Corp., 360 F.3d 1103, 1112 (9th Cir. 2004), “it should not take much for a plaintiff
in a discrimination case to overcome a summary judgment motion,” France v.
Johnson, 795 F.3d 1170, 1175 (9th Cir. 2015). California courts look to federal
precedent governing analogous federal anti-discrimination laws when interpreting
FEHA claims. Guz v. Bechtel Nat’l, Inc., 8 P.3d 1089, 1113 (Cal. 2000). The
district court had diversity jurisdiction over this case pursuant to 28 U.S.C. § 1332,
and we have jurisdiction over this case pursuant to 28 U.S.C. § 1291. We reverse
on all five state law claims.
1. We reverse the district court’s grant of summary judgment on Villalobos’s
disability discrimination claim. Section 12940(a) of FEHA prohibits employers
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from firing an employee “because of” disability. Nadaf-Rahrov v. Neiman Marcus
Grp., Inc., 166 Cal. App. 4th 952, 962 (2008). Under this section, Villalobos must
show that (1) he was fired because of disability and (2) he “could perform the
essential functions of the job with or without accommodation (in the parlance of
[federal law], that he [] is a qualified individual with a disability).” Id.
Villalobos has presented direct evidence that he was fired because of his
disabilities. He went on leave because of his anxiety, depression, and insomnia.
TWC explained that it fired Villalobos because of “his repeated, prolonged leaves
of absence which rendered him unable or unwilling to work.” Terminating an
employee for conduct that results from a disability is equivalent to terminating an
employee based on the disability itself because “conduct resulting from a disability
is considered to be part of the disability, rather than a separate basis for
termination.” Humphrey v. Mem’l Hosps. Ass’n, 239 F.3d 1128, 1139-40 (9th Cir.
2001).
TWC argues that Villalobos could not have been terminated because of his
disability because the field sales manager who decided to terminate Villalobos
testified that he did not know the underlying reason for Villalobos’s leave of
absence. However, Villalobos presented evidence that this manager was on notice:
he was copied on emails from Human Resources (HR) regarding Villalobos’s
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request for leave based on a medical condition. In addition, the manager testified
that the decision to terminate Villalobos was “a collaborative effort” with the HR
representative who reviewed his doctor’s medical certifications. Because “a
decision maker’s ignorance does not ‘categorically shield the employer from
liability if other substantial contributors bore the requisite animus,’” Wysinger v.
Auto. Club of S. Cal., 157 Cal. App. 4th 413, 421 (2007) (quoting Reeves v.
Safeway Stores, Inc., 121 Cal. App. 4th 95, 110 (2004)), this argument fails.
Villalobos has also raised a triable issue of fact as to whether he was a
“qualified individual.” An employee is “qualified” if he is able to perform the
essential duties of the position with or without reasonable accommodation. Nadaf-
Rahrov, 166 Cal. App. 4th at 963. Contrary to TWC’s argument, Villalobos is not
precluded as a matter of law from being qualified simply because he was unable to
work at the time of his termination. See Nunes v. Wal-Mart Stores, Inc., 164 F.3d
1243, 1247 (9th Cir. 1999); Humphrey, 239 F.3d at 1135-36. This conclusion
follows because one form of reasonable accommodation can be an extended leave
of absence that will, in the future, enable an individual to perform his essential job
duties. Nunes, 164 F.3d at 1247. Therefore, the proper inquiry for an otherwise
qualified individual who is terminated while on leave is whether the leave was a
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reasonable accommodation and did not impose an undue hardship on the employer.
Id.
Villalobos has presented evidence that he was qualified apart from the need
for leave. Neither his direct supervisor nor the field sales manager was able to
point to a negative performance review in Villalobos’s twenty-four years at TWC
and its predecessor companies. In addition, there is some evidence that he was
able to find employment as a door-to-door salesman for another company shortly
after his termination.
A leave of absence can constitute a reasonable accommodation “where it
appears likely that the employee will be able to return to an existing position at
some time in the foreseeable future.” Jensen v. Wells Fargo Bank, 85 Cal. App.
4th 245, 263 (2000). When evaluating reasonableness, California courts consider
whether the accommodation was “a finite leave of absence” or an “indefinite” one.
See Atkins v. City of L.A., 8 Cal. App. 5th 696, 721-22 (2017). Construing, as we
must, the facts in the light most favorable to Villalobos, there is a triable issue of
fact as to whether his requested leave of absence was finite because his doctor
provided a return-to-work date of March 10, 2014. Villalobos also testified that he
was ready and able to work by that date.
5
TWC argues that Villalobos’s requested extension could not have been
reasonable because he had already been granted multiple extensions that were
unsuccessful. However, a history of past accommodation does not, as a matter of
law, preclude Villalobos’s disability claim. “Although an employer need not
provide repeated leaves of absence for an employee . . . , the mere fact that a
medical leave has been repeatedly extended does not necessarily establish that it
would continue indefinitely.” Nadaf-Rahrov, 166 Cal. App. 4th at 988. Rather,
“the fact that an accommodation has been attempted and was unsuccessful is a
relevant consideration for the factfinder . . . . ” Kimbro v. Atl. Richfield Co., 889
F.2d 869, 879 n.10 (9th Cir. 1989). Although Villalobos’s multiple requests for
extensions “may in fact prove dispositive in determining whether failure to permit
subsequent leave constituted failure to make a reasonable accommodation,” id.,
this is a question properly resolved by the trier of fact and is inappropriate for
summary judgment.
Finally, there is a triable issue of material fact as to whether Villalobos’s
requested extension posed an undue hardship to TWC. Under section
12940(m)(1), employers must provide reasonable accommodation to an employee
with disability unless the employer can demonstrate that doing so would impose an
“undue hardship.” Atkins, 8 Cal. App. 5th at 733. Undue hardship means an
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“action requiring significant difficulty or expense” considered in light of, among
other factors, “the nature and cost of the accommodation needed,” “the overall
financial resources” of the employer, and “the type of operations, including the
composition, structure, and functions of the workforce . . . . ” Id. Also relevant is
TWC’s “policy or practice of offering other employees the same or similar
assistance or benefits requested by the plaintiff . . . . ” Id. at 722.
TWC has not carried its burden of demonstrating that there is no triable issue
of fact regarding undue hardship. Although TWC argues that it “could no longer
accommodate Villalobos’s cycle of extended, unpredictable leaves of absence,”
Villalobos has presented evidence that TWC has allowed at least two other
employees to take extended leaves of absence, one for seven months and another
for at least eighteen months. TWC attempts to distinguish these leaves on the basis
that they were continuous. It argues that unlike during those leaves, TWC “could
neither plan for [Villalobos’s] return nor fill his position.” However, Villalobos’s
direct supervisor testified that he also did not fill the position of the DSR who was
on an indefinite leave for at least eighteen months. In addition, the field sales
manager testified that it is relatively easy to transfer one of the 300-plus DSRs in
the Southern California area between teams. Finally, Villalobos’s direct supervisor
7
and the field sales manager testified that they continued to meet their sales goals
even with Villalobos out on leave.
2. We also reverse summary judgment on Villalobos’s separate claim that
TWC failed to reasonably accommodate him. Under section 12940(m), an
employer must reasonably accommodate an employee’s known disability unless
doing so would produce an undue hardship. For this claim, Villalobos must show
(1) he has a disability under FEHA, (2) he is “qualified to perform the essential
functions of the position,” and (3) TWC “failed to reasonably accommodate [his]
disability.” Swanson v. Morongo Unified Sch. Dist., 232 Cal. App. 4th 954, 969
(2014) (quoting Scotch v. Art Inst. of Cal.-Orange Cty., Inc., 173 Cal. App. 4th
986, 1010 (2009)). In light of the overlap between this claim and Villalobos’s
disability discrimination claim, we reverse summary judgment on this claim as
well. In addition, the duty to reasonably accommodate is an “affirmative” one that
is “continuing” and “not exhausted by one effort.” Id. (quoting Humphrey, 239
F.3d at 1138). Therefore, a “single failure to reasonably accommodate an
employee may give rise to liability, despite other efforts at accommodation.” Id.
Accordingly, it is no answer that TWC granted previous extensions if failing to do
so the last time was a failure to reasonably accommodate Villalobos.
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3. We also reverse the district court’s grant of summary judgment on
Villalobos’s claim that TWC failed to engage in the interactive process. “Under
FEHA, an employer must engage in a good faith interactive process with the
disabled employee to explore the alternatives to accommodate the disability.”
Nealy v. City of Santa Monica, 234 Cal. App. 4th 359, 379 (2015) (quoting
Wysinger, 157 Cal. App. at 424); Cal. Gov’t Code § 12940(n). The burden is on
the employer seeking summary judgment to demonstrate that there are no triable
facts as to its participation in the interactive process. Jensen, 85 Cal. App. 4th at
260.
“[T]he employer’s obligation to engage in the interactive process extends
beyond the first attempt at accommodation and continues when the employee asks
for a different accommodation or where the employer is aware that the initial
accommodation is failing and further accommodation is needed.” Humphrey, 239
F.3d at 1138. For this reason, we look to TWC’s actions in response to
Villalobos’s ultimate request for an extension of leave, rather than its engagement
in the interactive process throughout Villalobos’s periods of leave. The HR
representative charged with reviewing Villalobos’s accommodation requests
testified that she did not communicate with Villalobos between the receipt of his
request for an extension and the date he was terminated. She also testified that no
9
one informed Villalobos that he would be terminated if he failed to return to work
by the end of his most recent accommodation; instead, she explained that he was
informed only that any additional requests would need to be evaluated.
Accordingly, TWC is unable to sustain its burden.
4. We also reverse the district court’s grant of summary judgment on
Villalobos’s age discrimination claim under section 12940(a). Because Villalobos
relies on circumstantial evidence of discriminatory discharge, the burden-shifting
analysis under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) applies.
Guz, 8 P.3d at 1113 (explaining that “California has adopted the three-stage
burden-shifting test . . . for trying claims of discrimination”). Villalobos bears the
initial burden of establishing a prima facie case of employment discrimination. Id.
Then, the burden shifts to TWC to articulate a legitimate, nondiscriminatory reason
for terminating Villalobos. Id. at 1114. If TWC provides such a reason, Villalobos
must raise a triable issue that the reason is pretextual. Id.
To establish his prima facie case, Villalobos must show that he was: “(1) at
least forty years old, (2) performing his job satisfactorily, (3) discharged, and (4)
either replaced by substantially younger employees with equal or inferior
qualifications or discharged under circumstances otherwise ‘giving rise to an
inference of discrimination.’” Schechner v. KPIX-TV, 686 F.3d 1018, 1023 (9th
10
Cir. 2012) (quoting Diaz v. Eagle Produce Ltd. P’ship, 521 F.3d 1201, 1207 (9th
Cir. 2008)). The prima facie burden “is not an onerous one.” Hersant v. Dep’t of
Soc. Servs., 57 Cal. App. 4th 997, 1002-03 (1997). The parties do not dispute that
Villalobos was 61 at the time of his discharge. They dispute only elements two
and four. We conclude that Villalobos is able to establish his prima facie case.
With respect to the second element, TWC argues that because Villalobos
was terminated while on leave, his performance at the time of termination was
nonexistent, let alone satisfactory. We disagree. On the basis of our conclusion
that there is a triable issue as to whether Villalobos was a “qualified individual” for
purposes of his disability claims, and similar to the reasoning in Nunes v. Wal-Mart
Stores, Inc., 164 F.3d 1243, 1247 (9th Cir. 1999), we conclude that there is also a
triable issue of fact as to whether he was performing his job satisfactorily. He need
only “demonstrate some basic level of competence at his . . . job . . . . ” Sandell v.
Taylor-Listug, Inc., 188 Cal. App. 4th 297, 322 (2010). Considering his history of
performance rather than only his performance while on leave, no supervisor was
able to point to a negative performance review in Villalobos’s twenty-four years
with the company.
In addition, “[e]vidence of the employer’s policies and practices, including
its treatment of other employees, may support a . . . finding[] that the plaintiff’s job
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performance did in fact satisfy the employer’s own norms,” which would “carr[y]
the plaintiff’s burden” at this stage. Cheal v. El Camino Hosp., 223 Cal. App. 4th
736, 743-44 (2014) (noting that even though plaintiff “made several mistakes” in
preparing patients’ meals, “the hospital, under its own written policies, anticipated
and expected such mistakes because . . . they were inevitable” and did not
discipline other employees who made similar mistakes). Villalobos has presented
evidence that an extended leave of absence was within TWC’s policies and norms.
After Villalobos exhausted his FMLA leave, TWC informed him that it “[stood]
ready and willing to work with you to determine whether you can be reasonably
accommodated to be fully functional in your position.” TWC identified as one
reasonable accommodation an “extended leave of absence to enable you to return
to work.” In addition, the field sales manager testified that TWC anticipates some
absences whether for sickness or other reasons. TWC did not coach or warn
Villalobos that his lack of performance while on leave could subject him to
termination despite TWC’s having a progressive discipline policy beginning with
coaching, escalating to a verbal warning, then a written warning, and ending with
termination. Finally, TWC’s treatment of other employees on leave suggests that
Villalobos’s performance, even while on leave, was consistent with company
norms and therefore satisfactory. The employees who were on leave for seven and
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eighteen months did not receive any warnings about their performance or
indications that their jobs were in danger. Viewed in the light most favorable to
Villalobos, this evidence is sufficient to create a triable issue of material fact as to
whether he was performing satisfactorily.
Finally, Villalobos has also demonstrated a triable issue of fact regarding
whether age was a substantial motivating factor in his termination. He has
presented evidence that TWC hired someone to fill his role who was substantially
younger: his supervisor testified to hiring two new DSRs, aged 35 and 48, within
ten months of Villalobos’s termination. France, 795 F.3d at 1174 (explaining that
age difference of ten or more years gives rise to presumption of “substantially
younger”). Villalobos also testified that the field sales manager, the primary
decision maker regarding his termination, made a remark during a sales meeting
that he had been “hired to get rid of the veteran sales reps.” Although TWC argues
that this comment is ambiguous because it could be interpreted as referring to
experienced DSRs rather than older DSRs, “the task of disambiguating ambiguous
utterances is for trial, not summary judgment.” Reid v. Google, 235 P.3d 988,
1008 (Cal. 2010) (quoting Shager v. Upjohn Co., 913. F.2d 398, 402 (7th Cir.
1990)).
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TWC argues that even if Villalobos is able to establish a prima facie case, it
has provided a legitimate, non-discriminatory reason for his termination: “his
repeated, prolonged leaves of absence.” Because, as explained above, this reason
is direct evidence of discrimination based on Villalobos’s disabilities, this
proffered reason is neither legitimate nor non-discriminatory. It does not matter at
this stage that this is so because of disability discrimination rather than age
discrimination. The California Supreme Court has explained that “‘legitimate’
reasons in this context are reasons that are facially unrelated to prohibited bias,
and which, if true, would thus preclude a finding of discrimination.” Guz, 8 P.3d
at 1115-16 (citations omitted). This court as well has held that an otherwise
unlawful proffered reason cannot satisfy the employer’s burden at step two even if
it is not facially discriminatory toward the particular protected class on which the
claim is based. See Santillan v. USA Waste of Cal., Inc., 853 F.3d 1035, 1044-46
(9th Cir. 2017) (holding that proffered reason failed to rebut presumption of
unlawful discrimination based on age because it violated California public policy
by making reinstatement contingent on verification of immigration status).
Because TWC has failed to rebut the presumption of discrimination, we conclude
that the district court erred in granting summary judgment in favor of TWC.
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5. Finally, we reverse the district court’s grant of summary judgment on
Villalobos’s wrongful termination claim. Because there are triable issues on his
FEHA claims, “it necessarily follows that a triable issue exists with respect to [his]
cause of action for wrongful termination in violation of public policy.” Faust v.
Cal. Portland Cement Co., 150 Cal. App. 4th 864, 886 (2007).
REVERSED and REMANDED
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