Plaintiff Luis Castro-Ramirez sued his former employer, Dependable Highway Express, Inc. (DHE), alleging causes of action for disability discrimination, failure to prevent discrimination, and retaliation under the California Fair Employment and Housing Act (FEHA or the Act) (Gov. Code, § 12900 et seq.), as well as wrongful termination in violation of public policy. (He alleged other claims not pursued on appeal.) Plaintiff's son requires daily dialysis and, according to the evidence, plaintiff must be the one to administer the dialysis. For several years, plaintiff's supervisors scheduled him so that he could be home at night for his son's dialysis. That schedule accommodation changed when a new supervisor took over and ultimately terminated plaintiff for refusing to work a shift that did not permit him to be home in time for his son's dialysis. The trial court granted defendant's motion for summary judgment and denied plaintiff's motion to tax costs.
We reverse the judgment and the order denying the motion to tax costs. Plaintiff has demonstrated triable issues of material fact on his causes of action for associational disability discrimination, failure to prevent discrimination, retaliation, and wrongful termination in violation of public policy.
FACTS AND PROCEDURE
1. The Complaint
Plaintiff alleged that, when DHE hired him to work as a truck driver in 2010, he told DHE he had a disabled son who required dialysis on a daily
Plaintiff's complaint alleged a cause of action for associational disability discrimination in violation of FEHA, claiming defendant "was substantially motivated, in part, to terminate Plaintiff because of his association with his disabled family members...." Plaintiff also alleged DHE's conduct was in retaliation for his assertion of rights under FEHA. Plaintiff alleged several other causes of action, including failure to take reasonable steps to prevent the unlawful discrimination, and wrongful termination in violation of public policy.
2. DHE's Motion for Summary Judgment
The pertinent facts reflected in the parties' summary judgment papers are as follows. DHE employed plaintiff at will. DHE hired plaintiff in December 2009 to work out of its Los Angeles terminal as a local driver. During his time with DHE, he drove different routes throughout Los Angeles County.
Plaintiff's son needs a kidney transplant and has required daily home dialysis treatments for the last 15 years. Plaintiff is the only person in his household who knows how to operate the dialysis machine for his son. One has to take classes to learn how to operate the machine.
When plaintiff first began work at DHE, he informed the recruiting manager who hired him that he had daily obligations at home related to administering dialysis to his son. Plaintiff reported to Armando Gomez and Winston Bermudez, who were his initial supervisors, for over three years. Bermudez became his supervisor in 2011, when Bermudez was promoted to the dispatcher position. When Bermudez became his supervisor, plaintiff told Bermudez that he had a disabled son to whom he needed to apply daily dialysis. He also told Bermudez he needed to end his shifts early enough to get home for his son's treatments. Bermudez accommodated plaintiff's needs as often as he could by giving him a shift that enabled him to care for his son. Bermudez never gave plaintiff a shift that began as late as noon. Gomez also knew about plaintiff's special need to go home early to care for his son
Plaintiff's ability to work later depended on his son's condition on any given day. The amount of time his son needed to be connected to the machine varied between 10 and 12 hours. The time at which plaintiff would need to start administering dialysis also varied from between 7:00 p.m. and 12:00 a.m. There was no "normal day," beyond these general guidelines. On days when his son would need to be connected on the earlier side, plaintiff would communicate this to Gomez or Bermudez.
Throughout his employment, plaintiff performed satisfactorily with no problems. Plaintiff loved his job and appreciated DHE's assistance "from the heart." That assistance changed, however, when Bermudez was no longer his supervisor.
Sometime in March 2013, DHE promoted Bermudez to operations manager and Boldomero Munoz-Guillen (known as Junior) became plaintiff's supervisor (and Bermudez supervised Junior). When this happened, Bermudez told Junior that plaintiff had special needs related to his disabled son and needed to leave early. Bermudez asked Junior to "work with" plaintiff.
At some point later in March 2013, plaintiff complained to Bermudez that Junior had changed his hours, and he was starting later and finishing later and was unable to leave to tend to his son. Bermudez told Junior that plaintiff was complaining about his changing hours and his need to leave early. Junior told Bermudez that he did not need to bring plaintiff in earlier at the time, but Junior indicated he would "work on that." Bermudez never reported plaintiff's special needs to human resources and did not monitor plaintiff's schedule after plaintiff complained to him about Junior.
On April 15, 2013, approximately a week before plaintiff's termination, one of DHE's customers sent an e-mail to Bermudez and another manager (not Junior) asking for plaintiff, the "regular drive[r]," to do the customer's deliveries at 7:00 a.m. The customer stated that it "ha[d] always been done like that until recently." When plaintiff asked Junior about deliveries to this customer, Junior told him that the customer did not want plaintiff to make those deliveries and did not like plaintiff's work, and that was why Junior had given him shifts starting later. A few days later, the customer called plaintiff directly. The customer asked plaintiff why he was not making deliveries. Plaintiff explained that Junior had said the customer did not like his work.
On April 22, 2013, Junior assigned plaintiff a shift that started at 11:55 a.m., the latest he had ever started a shift, and ended at 9:04 p.m. He had "no problem" with the route that day because it still allowed him to be home in time for his son's dialysis. But he told Junior: "Please, I need to have my job like always. I've always had help from everyone except you."
The following day, on April 23, 2013, Junior assigned plaintiff a shift beginning at 12:00 p.m. Unlike the previous day, this assignment was for a route from Los Angeles to Oxnard and back, including multiple pickups and deliveries. Plaintiff explained to Junior that it was too late in the day for him to drive that route because he could not get back in time to administer dialysis to his son by 8:00 p.m. Plaintiff requested another route or simply to take that day off. He also reminded Junior that Bermudez had already talked to Junior about plaintiff's need for shifts enabling him to leave early for his son.
When plaintiff complained to Junior, Junior laughed and said, "Winston [Bermudez] doesn't work here anymore. Now it's me." Junior told plaintiff that if he did not do the route, he was fired. Plaintiff said he was sorry, but he could not do it. Junior told him to return the next day to sign the termination paperwork.
Plaintiff returned to DHE for three consecutive days after that because he wanted to work. On the third day, another manager told him that he had not worked for three days and "of course" he was terminated. DHE processed the termination as a "[v]oluntary [t]ermination" or "[r]esignation," with the stated reason being "[r]efused assignment." Plaintiff refused to sign the document stating he had resigned.
On the day Junior terminated plaintiff, Junior scheduled at least eight other drivers to start shifts well before noon, with start times at 4:54 a.m., 5:54 a.m., 7:00 a.m., 7:54 a.m., 8:06 a.m., 8:54 a.m., 9:00 a.m., and 10:54 a.m.
Maria Ramirez, defendant's human resources manager, testified: "It is not uncommon for drivers at [DHE] to refuse work assignments for a variety of reasons; if one of its drivers refuses a work assignment for any reason, this is grounds for termination." DHE's employee handbook states refusal to obey a supervisor's order or refusal to perform a job assignment is grounds for disciplinary action, including suspension without pay, discharge, counseling, and warning notices.
3. The Trial Court's Rulings
The trial court granted DHE's motion for summary judgment, concluding that there was no triable issue of material fact on any cause of action. The court rejected plaintiff's theory that DHE violated FEHA by terminating him for requesting an accommodation to care for a relative with a disability. The court concluded plaintiff's evidence at best showed that Junior was unwilling to provide accommodation to the same extent as plaintiff's previous supervisor. The court found no evidence to show the termination decision was based on plaintiff's association with his child, or in retaliation for his scheduling requests. Even assuming plaintiff could make a prima facie case, the court found inadequate evidence that defendant's stated reason for termination was pretextual. Plaintiff could not show the assignment he refused was improperly motivated, because plaintiff worked nearly identical hours the previous day without objection.
The court entered judgment for DHE and entered an amended judgment of dismissal several weeks later, awarding statutory costs to DHE in the amount of $7,592.08. Still later, on January 8, 2015, the trial court denied plaintiff's motion to tax or strike DHE's costs, rejecting plaintiff's argument that an employer is not entitled to costs in a FEHA action.
Plaintiff appealed from the judgment and the subsequent order denying his motion to tax costs. We consolidated the appeals for purposes of briefing, oral argument, and decision.
STANDARD OF REVIEW
We review an order granting summary judgment de novo, "considering all the evidence set forth in the moving and opposition papers except that to which objections have been made and sustained." (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334 [100 Cal.Rptr.2d 352, 8 P.3d 1089] (Guz).)
A defendant moving for summary judgment must show "that one or more elements of the cause of action ... cannot be established, or that there is a complete defense to that cause of action." (Code Civ. Proc., § 437c, subd. (p)(2).) "In performing our de novo review, we must view the evidence in a light favorable to plaintiff as the losing party [citation], liberally construing [his or] her evidentiary submission while strictly scrutinizing defendants' own showing, and resolving any evidentiary doubts or ambiguities in plaintiff's favor." (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768 [107 Cal.Rptr.2d 617, 23 P.3d 1143].) We accept as true both the facts shown by the losing party's evidence and reasonable inferences from that evidence. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 856
Summary judgment is appropriate only when "all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c).) A triable issue of material fact exists if the evidence and inferences therefrom would allow a reasonable juror to find the underlying fact in favor of the party opposing summary judgment. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at pp. 850, 856.)
1. Associational Disability Discrimination
Once the plaintiff establishes a prima facie case, "the burden then shifts to the employer to offer a legitimate, nondiscriminatory reason for the adverse employment action." (Deschene v. Pinole Point Steel Co. (1999) 76 Cal.App.4th 33, 44 [90 Cal.Rptr.2d 15].) The plaintiff may then show the employer's proffered reason is pretextual (Rope, supra, 220 Cal.App.4th at p. 656) or offer any further evidence of discriminatory motive (Guz, supra, 24 Cal.4th at p. 356). "In an appropriate case, evidence of dishonest reasons, considered together with the elements of the prima facie case, may permit a finding of prohibited bias." (Ibid.)
Here, DHE challenges plaintiff's case on several grounds. First, it argues that plaintiff's "entire case hinges on his fervent belief that [DHE] had an obligation to provide him with a special schedule as an accommodation for his son's illness," but DHE had no such duty. Second, DHE argues that, as a matter of law, plaintiff cannot establish his association with his disabled son motivated his termination, and moreover he cannot show that DHE's legitimate, nondiscriminatory reason for terminating him was pretextual. As we shall explain, none of these arguments entitles DHE to summary judgment.
a. Reasonable Accommodation in the Associational Disability Context
DHE maintains that this is fundamentally a reasonable accommodation case, and FEHA is "clear" that employers need not make accommodations for associates of the disabled — that is, only employees who are themselves disabled are entitled to reasonable accommodations. For his part, plaintiff tells us he has abandoned the reasonable accommodation cause of action pled in the complaint, and so that claim is not at issue on appeal. Even if plaintiff has abandoned his cause of action for failure to provide reasonable accommodation, the issue is relevant to his discrimination cause of action.
This is because, as discussed above, one element of the discrimination plaintiff's case is that the plaintiff was qualified to do his or her job, with or without reasonable accommodation. (Green, supra, 42 Cal.4th at pp. 261-262; Jensen, supra, 85 Cal.App.4th at p. 255.) Section 12940, subdivision (a) prohibits discrimination based on physical disability. Subdivision (a)(1) clarifies that FEHA does not prohibit discharging an employee with a physical disability "where the employee, because of his or her physical ... disability, is unable to perform his or her essential duties even with reasonable accommodations." (§ 12940, subd. (a)(1).) Thus, "in disability discrimination actions, the plaintiff has not shown the defendant has done anything wrong until the plaintiff can show he or she was able to do the job with or without reasonable accommodation." (Green, supra, 42 Cal.4th at p. 265.) On the other hand, the employer may have done something wrong if the plaintiff could perform the job with reasonable accommodation.
FEHA creates an associational disability discrimination claim in this exact manner — by reading "association with a physically disabled person" into the Act where "physical disability" appears in section 12940, subdivision (a). (§ 12940, subd. (a) [it is unlawful "[f]or an employer, because of the ... physical disability ... of any person ... to bar or to discharge the person from employment ... or to discriminate against the person in compensation or in terms, conditions, or privileges of employment"]; Rope, supra, 220 Cal.App.4th at pp. 656-657.) Nothing in the Act convinces us that we should decline to read "association with a physically disabled person" into "physical disability" when it appears in another subdivision of equal dignity within section 12940 (subd. (m)).
Elsewhere, the ADA states "`discriminat[ing] against a qualified individual on the basis of disability'" also includes "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee." (42 U.S.C. § 12112(b)(5)(A), italics added.) By these plain terms, the ADA requires reasonable accommodations only for applicants or employees who themselves have disabilities. (Den Hartog v. Wasatch Academy (10th Cir. 1997) 129 F.3d 1076, 1084.) The same cannot be said of FEHA, however, because of the way it plainly defines disability as encompassing association with a disabled person. FEHA has provided broader protections than the ADA in this way, and we should give effect to the clear intent of our Legislature.
We thus have no disagreement with federal cases determining that, under the ADA, employers need not provide reasonable accommodations to employees who are relatives or associates of the disabled. FEHA's language is simply not parallel to the ADA in this regard. For this reason, we are not persuaded by DHE's citation to federal cases such as Erdman v. Nationwide Ins. Co. (3d Cir. 2009) 582 F.3d 500, 510, Larimer v. International Business Machines Corp. (7th Cir. 2004) 370 F.3d 698, 700 (Larimer), Den Hartog v. Wasatch Academy, supra, 129 F.3d at page 1084, and Tyndall v. National Education Centers (4th Cir. 1994) 31 F.3d 209, 214, all holding that the duty to accommodate under the ADA does not extend to nondisabled relatives or associates of the disabled.
Before moving on, we briefly consider the only reported California case expressly addressing the merits of an associational disability discrimination claim, Rope, supra, 220 Cal.App.4th 635. (We discuss Rope at more length in the following subpart.) Rope dealt with the third element of the plaintiff's discrimination case — whether the disability of his associate was a substantial factor motivating the employer's adverse employment action. (Id. at pp. 656-658.) The court did not delve into or expressly decide whether FEHA requires reasonable accommodations in the associational disability context. Rope stated the elements of the plaintiff's prime facie discrimination case as: the plaintiff "`was a member of a protected class; was qualified for the position he sought; suffered an adverse employment action, and there were circumstances suggesting that the employer acted with a discriminatory motive.'" (Rope, at p. 656.) Rope quoted Jones v. Department of Corrections & Rehabilitation (2007) 152 Cal.App.4th 1367, 1379 [62 Cal.Rptr.3d 200] for this statement of the plaintiff's prima facie case. Jones was a gender and race discrimination case brought under FEHA, not a disability discrimination case. (Jones, at pp. 1373, 1380.) Reasonable accommodations, which only figure into disability, medical condition, or religious cases (§ 12940, subds. (a)(1)-(2), (l)(1)-(4)), are irrelevant in a race and gender discrimination case. As such, it is unsurprising that Jones's statement of the framework for the discrimination case made no mention of the plaintiff being qualified with or without reasonable accommodation. This is all to say that we do not feel bound by Rope's statement of the prima facie disability discrimination case, given that it adopted the framework from a nondisability case.
b. Discriminatory Motive and Pretext
Moving to DHE's challenge to the evidence of discriminatory motive and pretext, our starting point is Rope. Rope relied substantially on Larimer, which the Rope court described as "the seminal authority on disability-based associational discrimination under the ADA." (Rope, supra, 220 Cal.App.4th at p. 656.)
In Larimer, the court opined that "[t]hree types of situation are, we believe, within the intended scope of the rarely litigated ... association section [of the
Rope described the three categories in which Larimer found a motive for associational disability discrimination (expense, disability by association, and distraction). At the same time, Rope observed that Larimer "provided an `illustrat[ive],' rather than an exhaustive, list of the kind of circumstances which might trigger a claim of associational discrimination." (Rope, supra, 220 Cal.App.4th at p. 657.) "[A]nd more importantly, Larimer was decided under the ADA; the provisions of FEHA are broadly construed and afford employees more protection than the ADA." (Ibid.; see § 12926.1, subd. (a).) So while the Rope plaintiff's alleged facts did not "fit neatly within" one of Larimer's three categories, the court concluded the plaintiff had sufficiently pleaded a prima facie "`expense'" claim for associational disability discrimination. (Rope, supra, at p. 657.)
In Rope, the employer hired the plaintiff in late 2010. When hired, he allegedly informed the employer that he intended to take a leave of absence to donate a kidney to his sister in February 2011. He requested a paid leave of absence to do so, under a then-new statute requiring the employer to provide paid leave. Two days before the statute took effect on January 1, 2011, the employer terminated him on the allegedly pretextual basis of poor performance. (Rope, supra, 220 Cal.App.4th at pp. 642-643, 658.) The "reasonable inference" from these facts was that the employer "acted preemptively to avoid an expense stemming from [the plaintiff's] association with his physically disabled sister." (Id. at p. 658.) The plaintiff had therefore met
A jury could reasonably infer from the evidence here that plaintiff's association with his disabled son was a substantial motivating factor in Junior's decision to terminate him, and furthermore, that Junior's stated reason for termination was a pretext. Junior knew that plaintiff needed to finish his assigned route at a time that permitted him to administer dialysis to his son. Bermudez told Junior of plaintiff's needs in this respect and asked Junior to work with plaintiff when Junior took over as plaintiff's supervisor. That same month, plaintiff complained to Bermudez that Junior was scheduling him later than usual, prompting Bermudez to remind Junior of plaintiff's need to be home for his son's dialysis. Despite knowing of plaintiff's need to be home early, the month after Junior took over, he scheduled plaintiff for a shift that started at noon, later than plaintiff had ever started before. Junior did this even though eight other shifts well before noon were available, and even though DHE's customer had specifically requested that plaintiff — the customer's regular driver — do their 7:00 a.m. deliveries. There was no apparent reason why Junior could not have scheduled plaintiff for one of these earlier shifts. (The explanation Junior proffered earlier for not assigning plaintiff the 7:00 a.m. shift was false. Junior told plaintiff the customer was unhappy with his work and did not want him making the customer's deliveries, when the customer's feedback was quite the opposite, and plaintiff never had any performance issues at DHE.) Plaintiff told Junior he could not work the shift and route assigned to him because he had to be home to administer dialysis to his son, but he asked to return the next day for assignment. It should have been apparent plaintiff was not acting in bad faith or simply being insubordinate. Yet Junior did not attempt to work with plaintiff. Instead, he laughed and told plaintiff Bermudez was not in charge anymore. Even though DHE's policies allowed for less severe disciplinary
One reasonable inference from these facts is that Junior wanted to avoid the inconvenience and distraction plaintiff's need to care for his disabled son posed to Junior as the person responsible for scheduling the drivers. Thus, Junior engineered a situation in which plaintiff would refuse to work the shift, giving Junior reason to terminate him. In other words, plaintiff's termination for refusal to work the shift was a pretext for Junior's desire to be rid of someone whose disabled associate made Junior's job harder. Just as the facts in Rope gave rise to the inference that the employer acted preemptively to avoid the expense of paid leave (Rope, supra, 220 Cal.App.4th at p. 658), these facts may give rise to the inference that Junior acted proactively to avoid the nuisance plaintiff's association with his disabled son would cause Junior in the future.
DHE contends a fact finder cannot infer any discriminatory motive from Junior's actions because it is undisputed that plaintiff had no "set" schedule, he worked a nearly identical shift the day before his termination with no problems, and the time at which he administered dialysis to his son was "fully within his discretion." DHE suggests these facts show Junior had no reason to know plaintiff would refuse to work the shift assigned to him. But none of this evidence negated Junior's demonstrated knowledge that plaintiff had a disabled son at home constraining his schedule. Plaintiff may not have had a set schedule in the sense that he did not start or finish his shifts at the exact same time every day, but he had a typical schedule that allowed him to start around 9:00 or 10:00 a.m. and finish by 7:00 or 8:00 p.m. Furthermore, to say plaintiff had full discretion as to what time he could administer dialysis mischaracterizes plaintiff's responsibility. It is not as though plaintiff had the freedom to choose any time. The way he described it, the time varied based on his son's condition. On some days, his son's condition would worsen and the boy would need to be connected to the machine for a longer period of time. Plaintiff had learned how to check his son's condition and, on that basis, determine when the boy would need dialysis. Plaintiff could work the shift starting at 11:55 a.m. one day before his termination because it did not involve a route to far-away Oxnard and permitted him to be home in time for dialysis. The facts are that Junior knew plaintiff had a special need related to his disabled son, and plaintiff told Junior that was the reason he could not work the shift on April 23, 2013. Plaintiff was able to perform satisfactorily for over three years with the accommodations to the schedule that previous supervisors provided until Junior took over and fired plaintiff shortly after becoming his supervisor.
Viewing the evidence in a light favorable to the nonmoving party and indulging the reasonable inferences in his favor, as we must, plaintiff has
A relatively recent district court case, Kouromihelakis v. Hartford Fire Ins. Co. (D.Conn. 2014) 48 F.Supp.3d 175, is instructive. Kouromihelakis denied an employer's motion to dismiss the plaintiff's claim that he was fired because of the known disability of his father. The plaintiff alleged that he had to regularly assist in the care of his disabled father, who suffered a debilitating stroke; his job performance was excellent; he periodically did not report for work by 9:00 a.m.; the employer was aware of his father's disability and the reason for the plaintiff's tardiness; the plaintiff asked for, but was refused, a change in hours under the employer's "flex time" policy to accommodate his duties to his disabled father; and the employer terminated him after he arrived late one day. (Id. at pp. 178, 180-181.) The court concluded these allegations were sufficient to plead a plausible "`distraction'" claim under Larimer, and, viewed in a light most favorable to the plaintiff, supported "a reasonable inference that the defendant terminated the plaintiff's employment based on a belief about future absences." (Kouromihelakis, at pp. 180-181.) Like Kouromihelakis, the evidence here gives rise to the reasonable inference that Junior terminated plaintiff based on a belief that plaintiff would want earlier shifts in the future. Neither Kouromihelakis nor this case fit neatly within the distraction paradigm set forth in Larimer, but a neat fit is not required.
The cases on which DHE principally relies do not advance its case. In Ennis v. National Assn. of Business and Educational Radio, Inc. (4th Cir. 1995) 53 F.3d 55, the court affirmed summary judgment for the employer because the plaintiff could not establish at least two elements of her prima facie case: (1) "at the time of the discharge, she was performing her job at a level that met her employer's legitimate expectations"; and (2) "her discharge occurred under circumstances that raise a reasonable inference of unlawful discrimination." (Id. at p. 58.) She could not show she was performing her job adequately because the employer had extensively documented numerous instances of poor job performance over the course of several years. (Id. at pp. 61-62.) Her employer terminated her for poor job performance. (Id. at p. 57.) She could not show her association with her HIV-positive minor son instead motivated her termination, especially in light of the strong evidence that she had performed poorly for years. (Id. at p. 62.) She had no facts credibly giving rise to an inference of unlawful discrimination. (Ibid.) Here,
Magnus v. St. Mark United Methodist Church (7th Cir. 2012) 688 F.3d 331, 339, is also distinguishable. In Magnus, the plaintiff asserted her employer terminated her because of her association with her mentally disabled daughter, emphasizing that the termination came two weeks after she received a merit-based raise, and one day after she arrived at work an hour late due to a medical situation with her daughter. (Id. at p. 333.) But the undisputed evidence showed the raise was an across-the-board increase given to all full-time employees regardless of merit, and the employer had decided to terminate her the weekend before she arrived late to work. (Id. at pp. 333-334, 338-339.) The plaintiff could not rebut the employer's legitimate, nondiscriminatory reasons for its actions. The employer based the termination on numerous documented performance deficiencies and her refusal to work weekends (because of the need to care for her daughter). (Id. at pp. 335-336, 338.) The court observed that the plaintiff's true complaint was that the church failed to accommodate her need to care for her disabled daughter because it mandated that she work weekends — but the ADA did not require employers to reasonably accommodate for an employee's association with a disabled person. (Magnus, at pp. 334, 339.) Like in Ennis, the many performance deficiencies in Magnus justified the plaintiff's termination, not just a onetime refusal to work that was arguably engineered. Our case is also unlike Magnus because FEHA imposes a duty to reasonably accommodate in the associational disability context, in contrast to the ADA.
DHE asserts plaintiff cannot establish retaliation because he lacks evidence of a protected activity, and even if he engaged in protected activity, he cannot show a causal link between that activity and the adverse employment action. We are not persuaded that DHE is entitled to summary adjudication on these grounds.
"Retaliation claims are inherently fact-specific" (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1052 [32 Cal.Rptr.3d 436, 116 P.3d 1123] (Yanowitz)), and "protected conduct can take many forms" (id. at p. 1042). "Standing alone, an employee's unarticulated belief that an employer is engaging in discrimination will not suffice to establish protected conduct for the purposes of establishing a prima facie case of retaliation, where there is no evidence the employer knew that the employee's opposition was based upon a reasonable belief that the employer was engaging in discrimination." (Id. at p. 1046.) "[C]omplaints about personal grievances or vague or conclusory remarks that fail to put an employer on notice as to what conduct it should investigate will not suffice to establish protected conduct." (Id. at p. 1047.)
Two California Supreme Court cases in particular illustrate the principle that employees need not complain with the clarity and precision of lawyers to engage in protected conduct: Miller and Yanowitz. In Miller, the plaintiffs asserted they complained about improper sexual relationships between a supervisor and several of his subordinates, favoritism accorded to those subordinates, and subsequent hostile or harassing treatment by those subordinates after the plaintiffs expressed their complaints. (Miller, supra, 36 Cal.4th at pp. 452, 472-473.) The Court of Appeal concluded that, although the plaintiffs opposed the supervisor's conduct, "they had not expressed opposition to sex discrimination or sexual harassment. As the court understood the record, `[p]laintiffs were not complaining about sexual harassment but unfairness. This is not protected activity under the FEHA.'" (Id. at p. 474.) The Court of Appeal concluded the defendants were entitled to summary judgment on the plaintiffs' retaliation claim. (Id. at p. 460.) Our Supreme Court reversed, holding that although the plaintiffs "may not have recited the specific words `sexual discrimination' or `sexual harassment,' the nature of their complaint certainly fell within the general purview of FEHA, especially when we recall that this case is before us on review of a grant of summary judgment." (Id. at p. 475.)
In Yanowitz, the plaintiff's manager instructed her to terminate a dark-skinned female sales associate at a retail store because he did not consider the sales associate to be sufficiently physically attractive. (Yanowitz, supra, 36 Cal.4th at p. 1038.) In response, the plaintiff asked the manager for an adequate justification for terminating the sales associate. (Ibid.) On several subsequent occasions, the manager asked the plaintiff if she had fired the sales associate, and the plaintiff each time asked for adequate justification. (Ibid.) The plaintiff ultimately refused to terminate the sales associate. She never explicitly told the manager that she believed his order was discriminatory. (Ibid.) Our Supreme Court held "a trier of fact properly could find that [the manager] knew that [the plaintiff's] refusal to comply with his order to fire the sales associate was based on [the plaintiff's] belief that [the manager's] order constituted discrimination on the basis of sex — that is, the application of a different standard to a female employee than that applied to male employees — and that her opposition to the directive thus was not merely an unexplained insubordinate act bearing no relation to suspected discrimination. [Citation.] A trier of fact properly could find that by repeatedly refusing to implement the directive unless [the manager] provided `adequate justification,' [the plaintiff] sufficiently conveyed to [the manager] that she considered the order to be discriminatory and put him on notice that he should reconsider the order because of its apparent discriminatory nature." (Id. at p. 1048.)
Likewise, here, the evidence would permit a reasonable trier of fact to find protected activity. Plaintiff complained to Bermudez in March 2013 that Junior had changed his hours so that he was having problems tending to his son. Bermudez communicated the complaint about the change in hours to Junior. Junior already knew that plaintiff required earlier hours because of his obligation to care for his disabled son — Bermudez told Junior this when Junior took over. When Junior assigned plaintiff a later shift on April 22, 2013, the day before his termination, plaintiff worked it, but complained to Junior that he had "always had help from everyone except you," and pleaded with Junior "to have my job like always." The following day, plaintiff expressed opposition to the shift Junior assigned him because he could not return in time to care for his son, and plaintiff refused to work it. Junior terminated him directly.
The trier of fact could reasonably find that plaintiff's repeated complaints to Bermudez and Junior about the change in his scheduling, when both knew that he required earlier hours to administer dialysis to his son, constituted opposition to the denial of a reasonable accommodation in his schedule. Put otherwise, plaintiff showed opposition to a practice forbidden by FEHA (§ 12940, subd. (h)). Tied as the complaints were to his son's disability, the trier of fact also could find that Junior had reason to know plaintiff's complaints were not just an unexplained insubordinate act bearing no relation to perceived unlawful practices. Rather, one hearing plaintiff's complaints could infer that plaintiff believed the denial of an accommodated schedule to care for his son was unlawful. He need not have used the terms "unlawful" or "reasonable accommodation" themselves. Even if FEHA did not actually require DHE to reasonably accommodate plaintiff based on his son's disability — which it does — plaintiff's good faith belief that DHE was acting unlawfully was sufficient. (Yanowitz, supra, 36 Cal.4th at p. 1043.)
3. Failure to Prevent Discrimination and Wrongful Termination in Violation of Public Policy
In DHE's moving papers, it stated one argument against the causes of action for failure to prevent discrimination and wrongful termination — that they failed as a matter of law when no discrimination or other unlawful conduct in violation of public policy occurred. On appeal, DHE argues the same. Given that DHE is not entitled to summary adjudication on the discrimination and retaliation causes of action, it has not shown it is entitled to summary adjudication on failure to prevent discrimination and wrongful termination.
4. Costs Appeal
The court awarded DHE costs in the judgment as the prevailing party in the action. Plaintiff appealed from the court's order denying his motion to tax costs. Because we are reversing the judgment, and DHE is no longer the prevailing party, DHE is no longer entitled to costs. The order denying the motion to tax costs should also be reversed.
The judgment in case No. B261165 is reversed. On appeal, plaintiff has challenged the court's ruling on only four of his eight causes of action. The
Rubin, Acting P. J., concurred.
GRIMES, J., Dissenting.
Respectfully, I dissent. I am not prepared to go where no one has gone before, to find a California employer may be liable under FEHA for failing to accommodate a nondisabled employee's request to modify his work schedule to permit him to care for a disabled family member. It is particularly inappropriate to do so in this case, because plaintiff expressly told us in his briefs he "has abandoned this theory of liability." Plaintiff repeatedly tells us "this is not an accommodation case." Plaintiff asserts the issue "whether reasonable accommodations are available to the associates of the disabled ... is not before this Court." He points out that he has not challenged the trial court's ruling on his cause of action for failure to provide reasonable accommodations.
Instead, plaintiff asserts that even if he was not entitled to an accommodation under FEHA, he was "entitled to an intermittent medical leave of absence to care for his disabled son pursuant to the CFRA [California Family Rights Act (Gov. Code, § 12945.2)], at least on the day he was terminated."
The majority conflates the antidiscrimination provisions of sections 12940, subdivision (a) and 12926, subdivision (o) with the failure to accommodate provisions of section 12940, subdivision (m). The majority reasons that a person with no disability is statutorily declared to be "disabled" by association with a disabled person, thus triggering an employer's duty to accommodate a nondisabled applicant or employee so he or she can care for a disabled family member. The parties have cited no legislative history, regulation, case law, administrative decision, or secondary authority to support the majority's holding that FEHA creates a duty to accommodate a nondisabled applicant or employee who is associated with a nondisabled person. Such authority is absent from the majority opinion, as well.
The majority has gone out of its way to create a cause of action that no party to this appeal contends exists. The majority reverses the grant of summary judgment on the basis that "the plain language" of FEHA creates a duty to accommodate an employee's disabled family member — which is simply not so. The majority has indeed boldly gone into a new frontier, fraught with danger for California employers, a mission best left to the Legislature.
Putting aside for the moment the absence of authority to support a cause of action for failure to accommodate a nondisabled person with a disabled family member, there is very little California authority on discrimination against a person associated with a disabled person. The only authority expressly involving a claim of associational disability discrimination is Rope v. Auto-Chlor System of Washington, Inc. (2013) 220 Cal.App.4th 635 [163 Cal.Rptr.3d 392] (Rope). In Rope, the court concluded the plaintiff pleaded facts sufficient to support a claim for association-based disability discrimination. (Id. at p. 642.) The plaintiff alleged he informed his employer in late 2010 that he intended to donate a kidney to his sister in February 2011. He requested a paid leave of absence to do so, under a then-new statute requiring the employer to provide paid leave, effective as of January 1, 2011. Two days before the statute took effect, the employer terminated the plaintiff's employment on the allegedly pretextual basis of poor performance. (Id. at p. 643.)
In Larimer, the court identified three circumstances in which an employer might have a motive to discriminate against an employee who is associated with a disabled person, and concluded these types of situations were within the intended scope of the "rarely litigated" association provision of the ADA. The court denominated the categories as "expense," "disability by association," and "distraction." (Larimer, supra, 370 F.3d at p. 700.)
Larimer explained: "[The three types] can be illustrated as follows: an employee is fired (or suffers some other adverse personnel action) because (1) (`expense') his spouse has a disability that is costly to the employer because the spouse is covered by the company's health plan; (2a) (`disability by association') the employee's homosexual companion is infected with HIV and the employer fears that the employee may also have become infected, through sexual contact with the companion; (2b) (another example of disability by association) one of the employee's blood relatives has a disabling ailment that has a genetic component and the employee is likely to develop the disability as well (maybe the relative is an identical twin); (3) (`distraction') the employee is somewhat inattentive at work because his spouse or child has a disability that requires his attention, yet not so inattentive that to perform to his employer's satisfaction he would need an accommodation, perhaps by being allowed to work shorter hours." (Larimer, supra, 370 F.3d at p. 700.) As to the "distraction" category, the court continued: "The qualification concerning the need for an accommodation (that is, special consideration) is critical because the right to an accommodation, being limited to disabled employees, does not extend to a nondisabled associate of a disabled person." (Ibid., italics added, citing cases and 29 C.F.R. § 1630.8 (2015).)
In Larimer, the court affirmed summary judgment for the employer, where the employee was fired shortly after his twin children, who were born with a variety of serious medical conditions because of their prematurity, came home from the hospital. (Larimer, supra, 370 F.3d at p. 699.) The court held the plaintiff "must lose" because the case fit none of the categories the court described. (Id. at pp. 700, 701 [no evidence that health care costs were an issue, no evidence of communicable or genetic disease, and "no evidence that [the plaintiff] was absent or distracted at work because of his wife's pregnancy or the birth and hospitalization of his daughters"].)
FEHA, of course, is broader than the ADA. But in many ways FEHA is similar to the ADA, and we should not construe FEHA as departing from the ADA without a clear legislative statement of intent to do so. (See generally Green v. State of California (2007) 42 Cal.4th 254, 262-263 [64 Cal.Rptr.3d 390, 165 P.3d 118] ["In passing [the 1992 amendment to FEHA], at least one legislative analysis observed the Legislature's `conformity [to the ADA rules] will benefit employers and businesses because they will have one set of standards with which they must comply in order to be certain that they do not violate the rights of individuals with physical or mental disabilities.'"].) Our Legislature has expressly provided broader protection in FEHA than the ADA in certain important areas. (See Chin et al., Cal. Practice Guide: Employment Litigation, supra, ¶¶ 9:2091 to 9:2100, pp. 9-172 to 9-173.) Notably, the Legislature has not stated an intent that FEHA depart from the ADA by requiring an employer to engage in the interactive process with, and accommodate a nondisabled employee with a disabled family member.
I am sympathetic to plaintiff's point that his previous supervisors had accommodated his requests for earlier shifts, and that his last supervisor had discretion to assign him to earlier shifts on April 23, 2013. But I am left with no basis in the law on which to find a FEHA violation based on the assignment of a route to Oxnard with a noon start time (a schedule virtually identical to the shift plaintiff accepted the day before without complaint). Even in the case of a disabled employee, toward whom the employer does owe a duty to reasonably accommodate, it has been held that the employer's past accommodations did not prove the reasonableness of the employee's
Finally, turning to the retaliation claim, I disagree that plaintiff demonstrated a triable issue of fact as to the first element of a retaliation claim: that he engaged in a protected activity. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042 [32 Cal.Rptr.3d 436, 116 P.3d 1123] (Yanowitz).) Plaintiff contends he "oppos[ed] associational disability discrimination" when he complained about his supervisor "interfering with his schedule." While a formal accusation of discrimination is unnecessary, it is necessary that "`the employee's communications to the employer sufficiently convey the employee's reasonable concerns that the employer has acted or is acting in an unlawful discriminatory manner.' [Citation.]" (Id. at p. 1047.) There is nothing at all in the evidence to suggest that plaintiff thought defendant's scheduling was unlawful — as opposed to undesirable from plaintiff's point of view. And certainly there is no evidence to suggest that plaintiff actually conveyed to defendant any belief that defendant's actions were unlawful.
The majority likens this case to Yanowitz, where the plaintiff did not explicitly state to her superior that she believed his order to terminate a sales associate, because the associate was "`not good looking enough,'" constituted unlawful sex discrimination. (Yanowitz, supra, 36 Cal.4th at p. 1044.) But in Yanowitz, the evidence permitted a finding that, in view of the nature of the order, the plaintiff's "refusal to implement the order, coupled with her multiple requests for `adequate justification,' sufficiently communicated to [her superior] that she believed that his order was discriminatory." (Id. at p. 1048.) There is no comparable evidence here that plaintiff believed defendant's scheduling was discriminatory or that he conveyed that belief to defendant. "Standing alone, an employee's unarticulated belief that an employer is engaging in discrimination will not suffice to establish protected conduct for the purposes of establishing a prima facie case of retaliation, where there is no evidence the employer knew that the employee's opposition was based upon a reasonable belief that the employer was engaging in discrimination." (Id. at p. 1046.)
I would affirm the grant of summary judgment for defendant. I would reverse the trial court's order awarding defendant its costs and remand for a ruling under the standard announced in Williams v. Chino Valley Independent Fire Dist. (2015) 61 Cal.4th 97, 99-100 [186 Cal.Rptr.3d 826, 347 P.3d 976]