FILED
NOT FOR PUBLICATION
JAN 7 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GLORIA RODRIGUEZ, No. 17-17379
Plaintiff-Appellant, D.C. No. 3:16-cv-04413-SK
v.
MEMORANDUM*
COMCAST, INC., DBA Comcast Cable
Communications Management, LLC; et
al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Sallie Kim, Magistrate Judge, Presiding
Argued and Submitted December 3, 2019
San Francisco, California
Before: THOMAS, Chief Judge, and W. FLETCHER and MILLER, Circuit
Judges.
Gloria Rodriguez appeals the district court’s summary judgment in favor of
Comcast, Inc. in her diversity action alleging plaintiff’s job as a customer service
representative was terminated in violation of the California Fair Employment and
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Housing Act (“FEHA”). We have jurisdiction under 28 U.S.C. § 1291, and we
vacate and remand. Because the parties are familiar with the history of this case,
we need not recount it here.
We review district court orders granting summary judgment de novo, Weiner
v. San Diego Cty., 210 F.3d 1025, 1028 (9th Cir. 2000), as well as the district
court’s interpretation of state law, Entm’t Research Grp., Inc. v. Genesis Creative
Grp., Inc., 122 F.3d 1211, 1216 (9th Cir. 1997).
I
The district court erred in granting summary judgment on Rodriguez’s
FEHA claims because of perceived inconsistencies between her representations to
the Social Security Administration regarding her disabling condition and her
FEHA claims. A close examination of the statements she made to the SSA
demonstrates that the statements were subject to multiple interpretations, which did
not rise to the level that invocation of judicial estoppel would be proper. See
Cleveland v. Policy Management Systems Corporation, 526 U.S. 795, 807 (1999)
(an application for social security benefits does not preclude other relief if the
statements made in the application process can be explained); see also New
Hampshire v. Maine, 532 U.S. 742, 750 (2001) (explaining that courts applying
judicial estoppel typically require that “a party’s later position . . . be ‘clearly
2
inconsistent’ with its earlier position” (citations omitted)).
Therefore, we must vacate the district court’s grant of summary judgment as
to Rodriguez’s claims for disability discrimination, failure to accommodate, and
failure to engage in an interactive process.
II
The district court also erred in granting summary judgment on the FEHA
retaliation claim. FEHA prohibits an employer from retaliating against an
employee for engaging in “protected activity.” See Yanowitz v. L’Oreal USA, Inc.,
116 P.3d 1123, 1130–31 (Cal. 2005). The district court granted summary
judgment in favor of Comcast on the grounds that, at the time of Rodriguez’s
employment, requests for reasonable accommodation, standing alone, did not
constitute “protected activity.” Rodriguez v. Comcast Inc., No. 16-CV-04413-SK,
2017 WL 6819932, at *5 (N.D. Cal. Nov. 8, 2017) (citing Rope v. Auto-Chlor Sys.
of Washington, Inc., 163 Cal. Rptr. 3d 392, 407 (Cal. Ct. App. 2013)).
In 2015, however, the California legislature amended FEHA in response to
Rope. See 2015 Cal. Stat. 1669–74. This amendment was a clarification of
existing law, and not a substantive change, and thus it “properly applie[s] to
transactions predating its enactment.” Carter v. Cal. Dep’t of Veterans Affairs, 135
P.3d 637, 642 (Cal. 2006). In reaching this conclusion, we rely on a prediction that
3
the Supreme Court of California would also hold that the 2015 amendment
clarified FEHA. See id. at 642–48 (analyzing whether a similar amendment to
FEHA was a clarification of existing law). The 2015 amendment explicitly
repudiated Rope, “mak[ing] clear” that “a request for reasonable accommodation”
is a “protected activity” under FEHA. See 2015 Cal. Stat. 1670. It also noted that
federal law protects from retaliation individuals who request accommodations, and
“affirm[ed]” that California law “has always exceeded [federal law] in the
protections afforded.” Id.
At the time of Rodriguez’s employment, therefore, requests for
accommodation constituted protected activity under FEHA. We vacate the district
court’s grant of summary judgment to Comcast on Rodriguez’s retaliation claim
and remand for further proceedings.
III
Because we are vacating the district court’s grant of summary judgment with
respect to Rodriguez’s claims for disability discrimination, failure to
accommodate, failure to engage in an interactive process, and retaliation, we also
vacate the district court’s grant of summary judgment to Comcast with respect to
her claims for failure to prevent discrimination and wrongful termination in
violation of public policy and remand for further proceedings.
4
We need not, and do not, reach any other issue urged by the parties on
appeal or before the district court.
VACATED AND REMANDED.
5
FILED
Rodriguez v. Comcast, Inc., No. 17-17379
JAN 7 2020
MILLER, J., concurring in part and dissenting in part: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I join in the court’s disposition and reasoning, except as to part II. On an
issue governed by state law, we are “obligated to follow the decisions of the state’s
intermediate appellate courts” unless there is “convincing evidence that the state
supreme court would decide differently.” Ryman v. Sears, Roebuck & Co., 505
F.3d 993, 995 (9th Cir. 2007) (quoting Vestar Dev. II, LLC v. Gen. Dynamics
Corp., 249 F.3d 958, 960 (9th Cir. 2001)). The court offers plausible reasons to
think that the California Supreme Court might deem the 2015 amendment to
FEHA to have retroactive effect. In my view, however, those reasons are not
sufficiently convincing to justify disregarding the two published decisions of the
California Court of Appeal that have directly addressed this question and held that
the amendment does not apply retroactively. See Cornell v. Berkeley Tennis Club,
227 Cal. Rptr. 3d 286, 314 (Cal. Ct. App. 2017); Moore v. Regents of Univ. of Cal.,
206 Cal. Rptr. 3d 841, 867 (Cal. Ct. App. 2016).