Castro-Ramirez v. Dependable Highway Express, Inc.
Castro-Ramirez v. Dependable Highway Express, Inc.
Dissenting Opinion
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."
*207FEHA prohibits disability discrimination against an employee or applicant, including discrimination based on an association with a person who has a physical disability. (§ 12940, subd. (a) & § 12926, subd. (o ).) And, "FEHA requires employers to make reasonable accommodation for the known disabilities of applicants and employees to enable them to perform a *695position's essential functions, unless doing so would produce undue hardship to the employer's operations." (Chin et al., Cal. Practice Guide: Employment Litigation (The Rutter Group 2014) ¶ 9:2250, p. 9-194, citing § 12940, subd. (m) and other authorities.)
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)
*208Rope observed that the "reasonable inference is that [the employer] acted preemptively to avoid an expense stemming from [the plaintiff's] association with his physically disabled sister." (Rope, supra, 220 Cal.App.4th at p. 658,
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 situation 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.)
*696Larimer 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,
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,
*209Other federal authorities preceding Larimer, and subsequent authorities following Larimer observe that under the ADA, an employer is not obliged to accommodate an employee who is associated with a disabled person. (E.g., Tyndall v. National Educ. Centers (4th Cir. 1994)
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 *697Green v. State of California (2007)
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 *210request to continue to provide those accommodations. (See, e.g., Terrell v. USAir (11th Cir. 1998)
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)
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,
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)
Further statutory references are to the Government Code unless otherwise specified.
Opinion of the Court
*186Plaintiff 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 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 *187basis and he (plaintiff) was responsible for administering the dialysis. He requested work schedule accommodations that his supervisor initially granted, permitting him to attend to his son in the evening. In 2013, a new supervisor changed his work schedule. Plaintiff complained to the new supervisor about the change in schedule. On April 23, 2013, the supervisor gave plaintiff the 12:00 p.m. shift. Plaintiff objected and explained that the shift would not allow him to be home early enough in the evening to tend to his disabled son. The supervisor spoke to a manager and then terminated plaintiff's employment. The supervisor told plaintiff he "had quit by choosing not to take the assigned shift."
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 *679of 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 *188and informed Bermudez of this when Bermudez first became a dispatcher. Thus, while the schedules of DHE's drivers varied from day to day, plaintiff's typical schedule was from 9:00 or 10:00 a.m. until 7:00 or 8:00 p.m. There were times, however, when plaintiff worked shifts ending later, such as after 10:00 or 11:00 p.m.
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 *680"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.
*189The customer told plaintiff that was untrue and gave him a copy of the e-mail specifically requesting plaintiff's services. When deposed, Junior testified that he had seen the e-mail from the customer, but he could not recall exactly when.
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.
*681*1903. 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)
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)
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,
DISCUSSION
1. Associational Disability Discrimination
FEHA provides a cause of action for associational disability discrimination, although *682it is a seldom-litigated cause of action. (Rope v. Auto-Chlor System of Washington, Inc. (2013)
A prima facie case of disability discrimination under FEHA requires a showing that (1) the plaintiff suffered from a disability, (2) the plaintiff was otherwise qualified to do his or her job, with or without reasonable accommodation, and (3) the plaintiff was subjected to adverse employment action because of the disability. ( *192Green v. State of California (2007)
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)
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 *683disabled 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 entitle 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.
Moreover, it is not at all clear under FEHA that employers have no duty to provide reasonable accommodations in the associational disability context. No published California case has determined whether employers *193have a duty under FEHA to provide reasonable accommodations to an applicant or employee who is associated with a disabled person. We hold that FEHA creates such a duty according to the plain language of the Act.
FEHA provides separate causes of action for discriminating against employees because of their disabilities (§ 12940, subd. (a) ) and failing to provide reasonable accommodations for the disabilities of employees (§ 12940, subd. (m)(1) ). (Nealy v. City of Santa Monica, supra, 234 Cal.App.4th at p. 371,
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,
*684DHE wants us to modify this framework for a prima facie disability discrimination case so that the plaintiff must be qualified for his or her job without reasonable accommodation, not qualified with or without reasonable accommodation. DHE draws support from the portion of FEHA giving rise to a cause of action for failure to provide reasonable accommodation, section 12940, subdivision (m). The pertinent language makes it an unlawful employment practice "[f]or an employer or other entity covered by this part to fail to make reasonable accommodation for the known physical or mental disability *194of an applicant or employee." (§ 12940, subd. (m)(1).) Contrary to DHE's assertion, this language does not limit the duty to accommodate to employees who personally experience physical disabilities. One must read the parts of a statutory scheme together and construe them in a manner that gives effect to each. (City of Huntington Beach v. Board of Administration (1992)
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,
DHE also draws support for its argument from federal case law interpreting the Americans with Disabilities Act of 1990 (ADA) (
*685*195The ADA creates a cause of action for associational disability discrimination using much different language than FEHA. The "[g]eneral rule" is that "[n]o covered entity shall discriminate against a qualified individual on the basis of disability...." (
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 ." (
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)
To return to the first question raised by DHE's argument, if employers have a duty to provide reasonable accommodations for employees' association with disabled persons, there is no reason to excise the issue from the discrimination case. That is, the plaintiff must show he or she was qualified for the job, either with or without reasonable accommodation. ( *196Green, supra, 42 Cal.4th at pp. 261-262,
Before moving on, we briefly consider the only reported California case expressly addressing the merits of an associational *686disability discrimination claim, Rope, supra,
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 *197ADA]. We'll call them 'expense,' 'disability by association,' and 'distraction.' " (Larimer,
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,
We agree with Rope that Larimer provided an illustrative, rather than an exhaustive, list of the kinds of circumstances in which we might find an associational disability discrimination claim. The common thread among the Larimer categories is simply that they are instances in which the "employer has a motive to discriminate against a nondisabled employee who is merely associated with a disabled person." (Larimer, supra, 370 F.3d at p. 702.) As we discuss above, this is an element of a plaintiff's prima facie case-that the plaintiff's association with a disabled person was a substantial motivating factor for the employer's adverse employment action. Rope held the alleged facts in that case could give rise to an inference of such discriminatory motive. Our facts do not fit neatly within one of the Larimer categories either, but they are not required to so long as a jury may infer the requisite discriminatory motive.
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 *688remind 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 *199action than termination, for plaintiff's one-time refusal to work the shift assigned to him, Junior terminated him.
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,
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 *689involve 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 *200demonstrated a triable issue of material fact in response to DHE's showing. (Miller v. Department Corrections (2005)
A relatively recent district court case, Kouromihelakis v. Hartford Fire Ins. Co. (D.Conn. 2014)
The cases on which DHE principally relies do not advance its case. In Ennis v. National Assn. of Bus. and Educ. Radio, Inc. (4th Cir. 1995)
Magnus v. St. Mark United Methodist Church (7th Cir. 2012)
In sum, DHE failed to show it was entitled to summary adjudication of the disability discrimination cause of action. Even if this case is about DHE's refusal to accommodate plaintiff's schedule so he could administer dialysis to his son, FEHA entitles associates of the disabled to reasonable accommodations. If plaintiff could perform the essential functions of his job with reasonable accommodation for his son's disability, and his son's disability substantially motivated his termination, then DHE may be liable for associational disability discrimination. Plaintiff's evidence gives rise to reasonable inferences of discriminatory motive and pretext.
2. Retaliation
The retaliation provision of FEHA forbids an employer "to discharge, expel, or otherwise discriminate against any person because the *202person has opposed any practices forbidden under" FEHA. (§ 12940, subd. (h).) "Employees may establish a prima facie case of unlawful retaliation by showing that (1) they engaged in activities protected by the FEHA, (2) their employers subsequently took adverse employment action against them, and (3) there was a causal connection between the protected activity and the adverse employment action." (Miller, supra, 36 Cal.4th at p. 472,
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.
*691"Retaliation claims are inherently fact-specific" (Yanowitz v. L'Oreal USA, Inc. (2005)
But employees need not explicitly and directly inform their employer that they believe the employer's conduct was discriminatory or otherwise forbidden by FEHA. (Yanowitz, supra, 36 Cal.4th at p. 1046,
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,
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,
*204Thus, the plaintiff's evidence permitted-though not necessarily compelled-a reasonable trier of fact to find that she engaged in protected activity. (Ibid. )
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 *693practices. 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's was acting unlawfully was sufficient. (Yanowitz, supra, 36 Cal.4th at p. 1043,
The evidence would also permit a trier of fact to infer a causal link between plaintiff's complaints and his termination. Proximity in time between the employee's protected activity and the adverse employment action suffices to satisfy the employee's prima facie burden. (McRae v. Department of Corrections & Rehabilitation (2006)
*205DHE additionally maintains that, at best, plaintiff's remarks constituted a request for reasonable accommodation, not a complaint that Junior denied him a reasonable accommodation he previously received. DHE cites Rope for the proposition that requests for reasonable accommodation alone do not constitute protected activity. (Rope, supra, 220 Cal.App.4th at p. 652,
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 *694order 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.
DISPOSITION
The judgment in B261165 is reversed. On appeal, plaintiff has challenged the court's ruling on only four of his eight causes of action. The *206court shall enter an order granting DHE's motion for summary adjudication on the causes of action plaintiff has abandoned: (1) failure to provide reasonable accommodation, (2) failure to engage in good faith interactive process, (3) hostile work environment, and (4) failure to prevent harassment. The court's order shall deny summary adjudication on the remaining causes of action: (1) disability discrimination, (2) failure to prevent discrimination, (3) retaliation, and (4) wrongful termination in violation of public policy. The order denying the motion to tax costs in B262524 is reversed. Plaintiff shall recover his costs on appeal.
I CONCUR:
RUBIN, Acting P.J.
Further undesignated statutory references are to the Government Code.
The complete text states: "As used in [FEHA] in connection with unlawful practices, unless a different meaning clearly appears from the context: [¶] ... [¶] (o) 'Race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, age, sexual orientation, or military and veteran status' includes a perception that the person has any of those characteristics or that the person is associated with a person who has, or is perceived to have, any of those characteristics." (§ 12926, subd. (o).)
Larimer inserted the "qualification concerning the need for an accommodation" into category three "because the right to an accommodation, being limited to disabled employees, does not extend to a nondisabled associate of a disabled person" under the ADA. (Larimer, supra,370 F.3d at p. 700.) FEHA and the ADA do not align here, as just determined.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.