NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 29 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LUCIA CORTEZ, No. 19-56354
20-55153
Plaintiff-Appellee,
D.C. No.
v. 2:17-cv-04787-GW-JPR
CHIPOTLE MEXICAN GRILL, INC.;
CHIPOTLE SERVICES, LLC, MEMORANDUM*
Defendants-Appellants.
LUCIA CORTEZ, No. 20-55113
Plaintiff-Appellant, D.C. No.
2:17-cv-04787-GW-JPR
v.
CHIPOTLE MEXICAN GRILL, INC.;
CHIPOTLE SERVICES, LLC,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Argued and Submitted April 16, 2021
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: PAEZ and VANDYKE, Circuit Judges, and KORMAN,** District Judge.
Lucia Cortez (“Cortez”) appeals the district court’s judgment following a
jury’s verdict in favor of Chipotle Mexican Grill, Inc. and Chipotle Services, LLC
(collectively, “Chipotle”) on her disability discrimination and failure to
accommodate claims under California’s Fair Employment and Housing Act
(“FEHA”). Chipotle cross-appeals the district court’s summary judgment in favor
of Cortez on her claim under California Labor Code § 1198.5 for failure to timely
produce copies of all her personnel records. Chipotle also appeals, pursuant to 28
U.S.C. § 1292(b), the district court’s order granting Cortez a new trial on her claim
for failure to engage in the interactive process. We have jurisdiction pursuant to 28
U.S.C. § 1291 and 28 U.S.C. § 1292(b). We affirm in part and reverse in part.
Cortez’s Appeal, No. 20-55113
1. The district court’s denial of summary judgment1 to Cortez and Chipotle
on Cortez’s FEHA claims is generally not reviewable after a full trial on the merits
because it was not based on an error of law. See Escriba v. Foster Poultry Farms,
Inc., 743 F.3d 1236, 1243 (9th Cir. 2014). Instead, the district court found that
**
The Honorable Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.
1
We review de novo the district court’s summary judgment rulings. See Weiner v.
San Diego County, 210 F.3d 1025, 1028 (9th Cir. 2000).
2
whether Cortez was disabled at the time of her termination was a materially
disputed issue of fact that a jury had to resolve. See Banuelos v. Constr. Laborers’
Tr. Funds for S. Cal., 382 F.3d 897, 902–03 (9th Cir. 2004). Therefore, we do not
address the merits of Cortez’s challenge to the district court’s denial of her
supplemental motion for summary judgment.
2. “[W]hen a party seeks to amend a pleading after the pretrial scheduling
order’s deadline for amending the pleadings has expired, . . . ‘[a] schedule may be
modified only for good cause and with the judge’s consent’ . . . .” In re W. States
Wholesale Nat. Gas Antitrust Litig., 715 F.3d 716, 737 (9th Cir. 2013) (quoting
Fed. R. Civ. P. 16(b)(4)). The district court stated in its pretrial scheduling
conference that there would be “no further amendments without a Rule 16
motion.” In ruling on Cortez’s motion to amend, the district court acknowledged
that “the minutes from the pretrial scheduling conference do not specifically list
the last date for amendments” to the pleadings. The minutes from the conference
identified May 7, 2018 as the last day for motions to be heard. Cortez did not file
her motion to amend until September 10, 2018. The district court therefore treated
the motion as one to amend the scheduling order, applied the Rule 16 “good cause”
3
standard, and looked for evidence of Cortez’s diligence in seeking leave to amend
her complaint.2 See id. at 737–38.
Cortez argues that her late motion was justified because: (1) the material
facts of her proposed interference claim were already included in the original
complaint; and (2) Chipotle did not produce documents that supported her
interference claim until May 2018. The district court characterized Cortez’s
arguments as contradictory and focused on Cortez’s diligence. On appeal, Cortez
also argues that leave to amend should have been granted because Chipotle would
not be prejudiced by the proposed amendment. We affirm the denial of Cortez’s
motion for leave to amend. Because the facts underlying the proposed interference
claim were already known when Cortez filed her complaint, and she filed her
motion months after the scheduling order’s deadline, the district court did not
abuse its discretion in finding that Cortez did not establish good cause to extend
the deadline.
2
We review for abuse of discretion the district court’s denial of a motion to extend
a Rule 16 scheduling order’s filing deadlines and for leave to amend. See DRK
Photo v. McGraw-Hill Glob. Educ. Holdings, LLC, 870 F.3d 978, 982, 989 (9th
Cir. 2017).
4
3. Cortez argues that the district court abused its discretion by denying her
motion for a new trial.3 First, she argues the court should have granted a new trial
because it issued erroneous jury instructions requiring her to demonstrate that her
request and leave were a “substantial motivating factor” in her termination. She
argues that she only needed to demonstrate that the leave was “a negative factor”
to prove interference. Cortez, however, never proposed a proper jury instruction
related to her interference theory. Instead, she merely tried to substitute the
causation element in the jury instruction for her Wrongful Termination in Violation
of Public Policy claim for a similar causation element to the one she asserts here.
Because Cortez failed to propose a proper interference jury instruction, it was not
an abuse of discretion for the district court to deny her a new trial to provide the
jury instruction she now proposes.
4. FEHA makes it unlawful for an employer to “fail to make reasonable
accommodation for the known physical . . . disability of an . . . employee.” Cal.
Gov’t Code § 12940(m)(1). Following the jury’s verdict, Cortez also sought a new
trial on her Failure to Provide Reasonable Accommodation claim, asserting that
there “was no evidence at trial to establish that Chipotle accommodated Cortez.”
Given that David Shadix was aware that Cortez “had some [mental health] issues,”
3
We review for abuse of discretion the district court’s ruling on Cortez’s motion
for a new trial. Kode v. Carlson, 596 F.3d 608, 611–12 (9th Cir. 2010) (per
curiam).
5
however, the jury could have logically inferred that the leave was intended to
accommodate both Cortez’s physical and mental health issues. As a result, there is
sufficient evidence to support the jury’s verdict. We affirm the denial of Cortez’s
motion for a new trial on her failure to reasonably accommodate claim.
Chipotle’s Cross-Appeal, No. 20-55153
5. The district court granted summary judgment to Cortez on her claim
under California Labor Code § 1198.5. That statute provides that “[e]very current
and former employee, or his or her representative, has the right to inspect and
receive a copy of the personnel records that the employer maintains relating to the
employee’s performance or to any grievance concerning the employee” within 30
calendar days following receipt of a written request. Id. § 1198.5(a); see also id.
§ 1198.5(b)(1). When Chipotle responded to Cortez’s initial request for a copy of
her personnel records, it did not turn over Cortez’s incomplete 2015 and 2016
performance reviews. These reviews were not produced until February 20, 2018.
Although these documents were in Shadix’s possession, they were clearly created
as part of his management duties at Chipotle, and thus qualified as personnel
records. We affirm the grant of summary judgment to Cortez on her claim under §
1198.5.
Chipotle’s Appeal, No. 19-56354
6
6. FEHA makes it unlawful 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 or applicant with a known physical . . . disability
or known medical condition.” Cal. Gov’t Code § 12940(n). Cortez alleged that
Chipotle violated this statute by failing to engage in the interactive process. The
jury, however, found that Cortez did not “request that Chipotle make reasonable
accommodation for [her mental health] condition” and returned a verdict in favor
of Chipotle. We agree with Chipotle that the district court abused its discretion in
granting a new trial on this claim.
In granting Cortez’s motion for a new trial, the court reasoned that its
instruction for this claim, which tracked the Judicial Council of California Civil
Jury Instructions (CACI) No. 2546, was incomplete because it did not include all
the events listed in Cal. Code Regs. tit. 2, § 11069(b) that require an employer to
initiate the interactive process.4 Because Cortez had proposed a jury instruction
that included the § 11069(b) events, the court determined that it prejudicially erred
in failing to give an instruction that listed those events. The claim presented to the
4
We review de novo the district court’s legal determinations. See Wilkerson v.
Wheeler, 772 F.3d 834, 838 (9th Cir. 2014). “[A] district court abuses its
discretion when it makes an error of law. . . .” Knight v. Kenai Peninsula Borough
Sch. Dist., 131 F.3d 807, 816–17 (9th Cir. 1997).
7
jury, however, was based on Chipotle’s failure to engage in the interactive process
in violation of § 12940(n), not one based on its failure to initiate the interactive
process in violation of § 11069(b).
By combining the statutory and regulatory standards, the court effectively
extended the reach of § 12940(n) to events not contained in the statute, such as
where an “employee or the employee’s health care provider indicates that further
accommodation is still necessary.” Cal. Code Regs. tit. 2, § 11069(b)(3) (emphasis
added). FEHA, however, only creates an obligation to engage in the interactive
process with an employee “in response to a request for reasonable accommodation
by an employee.” Cal. Gov’t Code § 12940(n) (emphasis added). To interpret §
11069(b) to expand the reach of § 12940(n) creates a new source of potential
liability under the FEHA and doing so would inappropriately “alter or amend the
[FEHA] or enlarge or impair its scope.” Morris v. Williams, 433 P.2d 697, 707
(Cal. 1967) (en banc). The district court erred in its interpretation of § 11069(b).
Because § 12940(n) expressly requires an employee to request a reasonable
accommodation, and the court’s jury instruction properly set forth that
requirement, the instruction was not erroneous. We therefore reverse the district
court’s order granting a new trial on Cortez’s claim that Chipotle failed to engage
in the interactive process.
8
REVERSED in part and AFFIRMED in part. The parties shall bear their own
costs on appeal.
9