FILED
NOT FOR PUBLICATION
DEC 15 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GARLAND WILFONG, Nos. 15-55473
15-56000
Plaintiff-Appellant,
D.C. No.
v. 2:14-cv-04583-R-MRW
THARCO PACKAGING, INC.; et al.,
MEMORANDUM*
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Argued and Submitted December 7, 2016
Pasadena, California
Before: CALLAHAN, BEA, and IKUTA, Circuit Judges.
Garland Wilfong appeals the district court’s order granting summary
judgment in favor of Tharco Packaging, Inc., on his claims for violation of the
California Fair Employment and Housing Act (FEHA), Cal. Gov. Code § 12940,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
and the California Family Rights Act (CFRA), id. § 12945.2. We have jurisdiction
under 28 U.S.C. § 1291, and we reverse and remand.
The district court erred in granting summary judgment in favor of Tharco on
Wilfong’s FEHA claims of disability discrimination, failure to accommodate,
failure to engage in the interactive process, and failure to prevent discrimination.
There is a genuine issue of material fact as to whether Wilfong is disabled, given
evidence in the record that gout and arthritis limited his major life activities of
working and walking. See Cal. Gov. Code § 12926(m)(1)(B); EEOC v. United
Parcel Serv., Inc., 424 F.3d 1060, 1071 (9th Cir. 2005). There is also a genuine
issue of material fact regarding whether Tharco failed to provide reasonable
accommodations for Wilfong and failed to engage in the interactive process in
response to his requests for use of a cot, a reduction in overtime, and more medical
leave time. Finally, there is a genuine issue of material fact as to whether
Wilfong’s disability was a substantial motivating factor in Tharco’s imposition of
attendance discipline on Wilfong (including warnings and suspension) and in
Wilfong’s termination. See Harris v. City of Santa Monica, 56 Cal. 4th 203, 226
(2013). Although Tharco provided legitimate nondiscriminatory reasons for
disciplining and terminating Wilfong, a reasonable jury could conclude that these
reasons were pretextual based on evidence that decisionmakers (the plant manager,
2
the general manager, and human resources personnel) were hostile to the use of
medical leave by plant employees (including by Wilfong), that Tharco
intentionally interpreted Wilfong’s medical leave requests in a manner unfavorable
to Wilfong and did not explain this interpretation to Wilfong until after he was
disciplined, and that Tharco’s determination that Wilfong committed a second
lock-out/tag-out violation was made in order to trigger his automatic termination.
For the same reasons, the district court erred in dismissing Wilfong’s FEHA
claim that Tharco retaliated against him for engaging in protected activities. While
Wilfong’s requests for accommodation were not FEHA-protected activity, see
Moore v. Regents of the Univ. of Cal., 248 Cal. App. 4th 216, 247 (2016), it is
undisputed that Wilfong made complaints to his supervisor regarding attendance
discipline and refused to sign the July 2013 suspension notice, both of which
constitute protected activity under FEHA, see Castro-Ramirez v. Dependable
Highway Express, Inc., 2 Cal. App. 5th 1028, 1050 (2016). Further, a reasonable
jury could infer causation from the closeness in timing between these activities and
subsequent adverse employment actions. See Flait v. N. Am. Watch Corp., 3 Cal.
App. 4th 467, 478 (1992).
Wilfong’s CFRA claims for interference and retaliation also survive
summary judgment. There is a genuine issue of material fact as to whether Tharco
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failed to request recertification from Wilfong in a timely manner, see Cal. Code
Regs. tit. 2, § 11091(b)(2), and therefore interfered with Wilfong’s CFRA rights by
counting CFRA leave as absences under its attendance policy, see Avila v. Cont’l
Airlines, Inc., 165 Cal. App. 4th 1237, 1254 (2008). Further, a reasonable trier of
fact could find that Tharco retaliated against Wilfong for asserting his entitlement
to CFRA leave by suspending him. See Dudley v. Dep’t of Transp., 90 Cal. App.
4th 255, 261 (2001).1
REVERSED and REMANDED.
1
Because we reverse and remand, we vacate the district court’s award of
costs to Tharco as moot. Cf. United States ex rel. Newsham v. Lockheed Missiles
& Space Co., 190 F.3d 963, 973 (9th Cir. 1999).
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