                                NOT FOR PUBLICATION                           FILED
                                                                               DEC 26 2017
                         UNITED STATES COURT OF APPEALS
                                                                           MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS
                                 FOR THE NINTH CIRCUIT


     RALPH VILLALOBOS,                               No.    16-55288

                  Plaintiff-Appellant,               D.C. No.
                                                     2:15-cv-02808-R-PLA
      v.

     TWC ADMINISTRATION LLC,                         MEMORANDUM*

                  Defendant-Appellee.


                        Appeal from the United States District Court
                           for the Central District of California
                         Manuel L. Real, District Judge, Presiding

                          Argued and Submitted December 6, 2017
                                   Pasadena, California

     Before: CANBY and REINHARDT, Circuit Judges, and BLOCK,** District
     Judge.




*
     This disposition is not appropriate for publication and is not precedent except as
     provided by Ninth Circuit Rule 36-3.
**
     The Honorable Frederic Block, United States District Judge for the Eastern District
     of New York, sitting by designation.
                                               1
      Ralph Villalobos (“Villalobos”) appeals the district court’s grant of

summary judgment in favor of TWC Administration LLC (“TWC”) on his state

law claims for disability and age discrimination, and wrongful termination in

violation of public policy under California’s Fair Employment and Housing Act

(“FEHA”). Cal. Gov’t Code § 12940. Villalobos served as a Direct Sales

Representative (“DSR”) for TWC and its predecessors for twenty-four years before

he was terminated in February 2014. Because “discrimination claims are

frequently difficult to prove without a full airing of the evidence and an

opportunity to evaluate the credibility of the witnesses,” McGinest v. GTE Serv.

Corp., 360 F.3d 1103, 1112 (9th Cir. 2004), “it should not take much for a plaintiff

in a discrimination case to overcome a summary judgment motion,” France v.

Johnson, 795 F.3d 1170, 1175 (9th Cir. 2015). California courts look to federal

precedent governing analogous federal anti-discrimination laws when interpreting

FEHA claims. Guz v. Bechtel Nat’l, Inc., 8 P.3d 1089, 1113 (Cal. 2000). The

district court had diversity jurisdiction over this case pursuant to 28 U.S.C. § 1332,

and we have jurisdiction over this case pursuant to 28 U.S.C. § 1291. We reverse

on all five state law claims.

      1. We reverse the district court’s grant of summary judgment on Villalobos’s

disability discrimination claim. Section 12940(a) of FEHA prohibits employers

                                          2
from firing an employee “because of” disability. Nadaf-Rahrov v. Neiman Marcus

Grp., Inc., 166 Cal. App. 4th 952, 962 (2008). Under this section, Villalobos must

show that (1) he was fired because of disability and (2) he “could perform the

essential functions of the job with or without accommodation (in the parlance of

[federal law], that he [] is a qualified individual with a disability).” Id.

      Villalobos has presented direct evidence that he was fired because of his

disabilities. He went on leave because of his anxiety, depression, and insomnia.

TWC explained that it fired Villalobos because of “his repeated, prolonged leaves

of absence which rendered him unable or unwilling to work.” Terminating an

employee for conduct that results from a disability is equivalent to terminating an

employee based on the disability itself because “conduct resulting from a disability

is considered to be part of the disability, rather than a separate basis for

termination.” Humphrey v. Mem’l Hosps. Ass’n, 239 F.3d 1128, 1139-40 (9th Cir.

2001).

      TWC argues that Villalobos could not have been terminated because of his

disability because the field sales manager who decided to terminate Villalobos

testified that he did not know the underlying reason for Villalobos’s leave of

absence. However, Villalobos presented evidence that this manager was on notice:

he was copied on emails from Human Resources (HR) regarding Villalobos’s

                                            3
request for leave based on a medical condition. In addition, the manager testified

that the decision to terminate Villalobos was “a collaborative effort” with the HR

representative who reviewed his doctor’s medical certifications. Because “a

decision maker’s ignorance does not ‘categorically shield the employer from

liability if other substantial contributors bore the requisite animus,’” Wysinger v.

Auto. Club of S. Cal., 157 Cal. App. 4th 413, 421 (2007) (quoting Reeves v.

Safeway Stores, Inc., 121 Cal. App. 4th 95, 110 (2004)), this argument fails.

      Villalobos has also raised a triable issue of fact as to whether he was a

“qualified individual.” An employee is “qualified” if he is able to perform the

essential duties of the position with or without reasonable accommodation. Nadaf-

Rahrov, 166 Cal. App. 4th at 963. Contrary to TWC’s argument, Villalobos is not

precluded as a matter of law from being qualified simply because he was unable to

work at the time of his termination. See Nunes v. Wal-Mart Stores, Inc., 164 F.3d

1243, 1247 (9th Cir. 1999); Humphrey, 239 F.3d at 1135-36. This conclusion

follows because one form of reasonable accommodation can be an extended leave

of absence that will, in the future, enable an individual to perform his essential job

duties. Nunes, 164 F.3d at 1247. Therefore, the proper inquiry for an otherwise

qualified individual who is terminated while on leave is whether the leave was a



                                          4
reasonable accommodation and did not impose an undue hardship on the employer.

Id.

      Villalobos has presented evidence that he was qualified apart from the need

for leave. Neither his direct supervisor nor the field sales manager was able to

point to a negative performance review in Villalobos’s twenty-four years at TWC

and its predecessor companies. In addition, there is some evidence that he was

able to find employment as a door-to-door salesman for another company shortly

after his termination.

      A leave of absence can constitute a reasonable accommodation “where it

appears likely that the employee will be able to return to an existing position at

some time in the foreseeable future.” Jensen v. Wells Fargo Bank, 85 Cal. App.

4th 245, 263 (2000). When evaluating reasonableness, California courts consider

whether the accommodation was “a finite leave of absence” or an “indefinite” one.

See Atkins v. City of L.A., 8 Cal. App. 5th 696, 721-22 (2017). Construing, as we

must, the facts in the light most favorable to Villalobos, there is a triable issue of

fact as to whether his requested leave of absence was finite because his doctor

provided a return-to-work date of March 10, 2014. Villalobos also testified that he

was ready and able to work by that date.



                                           5
      TWC argues that Villalobos’s requested extension could not have been

reasonable because he had already been granted multiple extensions that were

unsuccessful. However, a history of past accommodation does not, as a matter of

law, preclude Villalobos’s disability claim. “Although an employer need not

provide repeated leaves of absence for an employee . . . , the mere fact that a

medical leave has been repeatedly extended does not necessarily establish that it

would continue indefinitely.” Nadaf-Rahrov, 166 Cal. App. 4th at 988. Rather,

“the fact that an accommodation has been attempted and was unsuccessful is a

relevant consideration for the factfinder . . . . ” Kimbro v. Atl. Richfield Co., 889

F.2d 869, 879 n.10 (9th Cir. 1989). Although Villalobos’s multiple requests for

extensions “may in fact prove dispositive in determining whether failure to permit

subsequent leave constituted failure to make a reasonable accommodation,” id.,

this is a question properly resolved by the trier of fact and is inappropriate for

summary judgment.

      Finally, there is a triable issue of material fact as to whether Villalobos’s

requested extension posed an undue hardship to TWC. Under section

12940(m)(1), employers must provide reasonable accommodation to an employee

with disability unless the employer can demonstrate that doing so would impose an

“undue hardship.” Atkins, 8 Cal. App. 5th at 733. Undue hardship means an

                                           6
“action requiring significant difficulty or expense” considered in light of, among

other factors, “the nature and cost of the accommodation needed,” “the overall

financial resources” of the employer, and “the type of operations, including the

composition, structure, and functions of the workforce . . . . ” Id. Also relevant is

TWC’s “policy or practice of offering other employees the same or similar

assistance or benefits requested by the plaintiff . . . . ” Id. at 722.

       TWC has not carried its burden of demonstrating that there is no triable issue

of fact regarding undue hardship. Although TWC argues that it “could no longer

accommodate Villalobos’s cycle of extended, unpredictable leaves of absence,”

Villalobos has presented evidence that TWC has allowed at least two other

employees to take extended leaves of absence, one for seven months and another

for at least eighteen months. TWC attempts to distinguish these leaves on the basis

that they were continuous. It argues that unlike during those leaves, TWC “could

neither plan for [Villalobos’s] return nor fill his position.” However, Villalobos’s

direct supervisor testified that he also did not fill the position of the DSR who was

on an indefinite leave for at least eighteen months. In addition, the field sales

manager testified that it is relatively easy to transfer one of the 300-plus DSRs in

the Southern California area between teams. Finally, Villalobos’s direct supervisor



                                            7
and the field sales manager testified that they continued to meet their sales goals

even with Villalobos out on leave.

      2. We also reverse summary judgment on Villalobos’s separate claim that

TWC failed to reasonably accommodate him. Under section 12940(m), an

employer must reasonably accommodate an employee’s known disability unless

doing so would produce an undue hardship. For this claim, Villalobos must show

(1) he has a disability under FEHA, (2) he is “qualified to perform the essential

functions of the position,” and (3) TWC “failed to reasonably accommodate [his]

disability.” Swanson v. Morongo Unified Sch. Dist., 232 Cal. App. 4th 954, 969

(2014) (quoting Scotch v. Art Inst. of Cal.-Orange Cty., Inc., 173 Cal. App. 4th

986, 1010 (2009)). In light of the overlap between this claim and Villalobos’s

disability discrimination claim, we reverse summary judgment on this claim as

well. In addition, the duty to reasonably accommodate is an “affirmative” one that

is “continuing” and “not exhausted by one effort.” Id. (quoting Humphrey, 239

F.3d at 1138). Therefore, a “single failure to reasonably accommodate an

employee may give rise to liability, despite other efforts at accommodation.” Id.

Accordingly, it is no answer that TWC granted previous extensions if failing to do

so the last time was a failure to reasonably accommodate Villalobos.



                                          8
       3. We also reverse the district court’s grant of summary judgment on

Villalobos’s claim that TWC failed to engage in the interactive process. “Under

FEHA, an employer must engage in a good faith interactive process with the

disabled employee to explore the alternatives to accommodate the disability.”

Nealy v. City of Santa Monica, 234 Cal. App. 4th 359, 379 (2015) (quoting

Wysinger, 157 Cal. App. at 424); Cal. Gov’t Code § 12940(n). The burden is on

the employer seeking summary judgment to demonstrate that there are no triable

facts as to its participation in the interactive process. Jensen, 85 Cal. App. 4th at

260.

       “[T]he employer’s obligation to engage in the interactive process extends

beyond the first attempt at accommodation and continues when the employee asks

for a different accommodation or where the employer is aware that the initial

accommodation is failing and further accommodation is needed.” Humphrey, 239

F.3d at 1138. For this reason, we look to TWC’s actions in response to

Villalobos’s ultimate request for an extension of leave, rather than its engagement

in the interactive process throughout Villalobos’s periods of leave. The HR

representative charged with reviewing Villalobos’s accommodation requests

testified that she did not communicate with Villalobos between the receipt of his

request for an extension and the date he was terminated. She also testified that no

                                           9
one informed Villalobos that he would be terminated if he failed to return to work

by the end of his most recent accommodation; instead, she explained that he was

informed only that any additional requests would need to be evaluated.

Accordingly, TWC is unable to sustain its burden.

      4. We also reverse the district court’s grant of summary judgment on

Villalobos’s age discrimination claim under section 12940(a). Because Villalobos

relies on circumstantial evidence of discriminatory discharge, the burden-shifting

analysis under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) applies.

Guz, 8 P.3d at 1113 (explaining that “California has adopted the three-stage

burden-shifting test . . . for trying claims of discrimination”). Villalobos bears the

initial burden of establishing a prima facie case of employment discrimination. Id.

Then, the burden shifts to TWC to articulate a legitimate, nondiscriminatory reason

for terminating Villalobos. Id. at 1114. If TWC provides such a reason, Villalobos

must raise a triable issue that the reason is pretextual. Id.

      To establish his prima facie case, Villalobos must show that he was: “(1) at

least forty years old, (2) performing his job satisfactorily, (3) discharged, and (4)

either replaced by substantially younger employees with equal or inferior

qualifications or discharged under circumstances otherwise ‘giving rise to an

inference of discrimination.’” Schechner v. KPIX-TV, 686 F.3d 1018, 1023 (9th

                                           10
Cir. 2012) (quoting Diaz v. Eagle Produce Ltd. P’ship, 521 F.3d 1201, 1207 (9th

Cir. 2008)). The prima facie burden “is not an onerous one.” Hersant v. Dep’t of

Soc. Servs., 57 Cal. App. 4th 997, 1002-03 (1997). The parties do not dispute that

Villalobos was 61 at the time of his discharge. They dispute only elements two

and four. We conclude that Villalobos is able to establish his prima facie case.

      With respect to the second element, TWC argues that because Villalobos

was terminated while on leave, his performance at the time of termination was

nonexistent, let alone satisfactory. We disagree. On the basis of our conclusion

that there is a triable issue as to whether Villalobos was a “qualified individual” for

purposes of his disability claims, and similar to the reasoning in Nunes v. Wal-Mart

Stores, Inc., 164 F.3d 1243, 1247 (9th Cir. 1999), we conclude that there is also a

triable issue of fact as to whether he was performing his job satisfactorily. He need

only “demonstrate some basic level of competence at his . . . job . . . . ” Sandell v.

Taylor-Listug, Inc., 188 Cal. App. 4th 297, 322 (2010). Considering his history of

performance rather than only his performance while on leave, no supervisor was

able to point to a negative performance review in Villalobos’s twenty-four years

with the company.

      In addition, “[e]vidence of the employer’s policies and practices, including

its treatment of other employees, may support a . . . finding[] that the plaintiff’s job

                                          11
performance did in fact satisfy the employer’s own norms,” which would “carr[y]

the plaintiff’s burden” at this stage. Cheal v. El Camino Hosp., 223 Cal. App. 4th

736, 743-44 (2014) (noting that even though plaintiff “made several mistakes” in

preparing patients’ meals, “the hospital, under its own written policies, anticipated

and expected such mistakes because . . . they were inevitable” and did not

discipline other employees who made similar mistakes). Villalobos has presented

evidence that an extended leave of absence was within TWC’s policies and norms.

After Villalobos exhausted his FMLA leave, TWC informed him that it “[stood]

ready and willing to work with you to determine whether you can be reasonably

accommodated to be fully functional in your position.” TWC identified as one

reasonable accommodation an “extended leave of absence to enable you to return

to work.” In addition, the field sales manager testified that TWC anticipates some

absences whether for sickness or other reasons. TWC did not coach or warn

Villalobos that his lack of performance while on leave could subject him to

termination despite TWC’s having a progressive discipline policy beginning with

coaching, escalating to a verbal warning, then a written warning, and ending with

termination. Finally, TWC’s treatment of other employees on leave suggests that

Villalobos’s performance, even while on leave, was consistent with company

norms and therefore satisfactory. The employees who were on leave for seven and

                                         12
eighteen months did not receive any warnings about their performance or

indications that their jobs were in danger. Viewed in the light most favorable to

Villalobos, this evidence is sufficient to create a triable issue of material fact as to

whether he was performing satisfactorily.

      Finally, Villalobos has also demonstrated a triable issue of fact regarding

whether age was a substantial motivating factor in his termination. He has

presented evidence that TWC hired someone to fill his role who was substantially

younger: his supervisor testified to hiring two new DSRs, aged 35 and 48, within

ten months of Villalobos’s termination. France, 795 F.3d at 1174 (explaining that

age difference of ten or more years gives rise to presumption of “substantially

younger”). Villalobos also testified that the field sales manager, the primary

decision maker regarding his termination, made a remark during a sales meeting

that he had been “hired to get rid of the veteran sales reps.” Although TWC argues

that this comment is ambiguous because it could be interpreted as referring to

experienced DSRs rather than older DSRs, “the task of disambiguating ambiguous

utterances is for trial, not summary judgment.” Reid v. Google, 235 P.3d 988,

1008 (Cal. 2010) (quoting Shager v. Upjohn Co., 913. F.2d 398, 402 (7th Cir.

1990)).



                                           13
      TWC argues that even if Villalobos is able to establish a prima facie case, it

has provided a legitimate, non-discriminatory reason for his termination: “his

repeated, prolonged leaves of absence.” Because, as explained above, this reason

is direct evidence of discrimination based on Villalobos’s disabilities, this

proffered reason is neither legitimate nor non-discriminatory. It does not matter at

this stage that this is so because of disability discrimination rather than age

discrimination. The California Supreme Court has explained that “‘legitimate’

reasons in this context are reasons that are facially unrelated to prohibited bias,

and which, if true, would thus preclude a finding of discrimination.” Guz, 8 P.3d

at 1115-16 (citations omitted). This court as well has held that an otherwise

unlawful proffered reason cannot satisfy the employer’s burden at step two even if

it is not facially discriminatory toward the particular protected class on which the

claim is based. See Santillan v. USA Waste of Cal., Inc., 853 F.3d 1035, 1044-46

(9th Cir. 2017) (holding that proffered reason failed to rebut presumption of

unlawful discrimination based on age because it violated California public policy

by making reinstatement contingent on verification of immigration status).

Because TWC has failed to rebut the presumption of discrimination, we conclude

that the district court erred in granting summary judgment in favor of TWC.



                                          14
      5. Finally, we reverse the district court’s grant of summary judgment on

Villalobos’s wrongful termination claim. Because there are triable issues on his

FEHA claims, “it necessarily follows that a triable issue exists with respect to [his]

cause of action for wrongful termination in violation of public policy.” Faust v.

Cal. Portland Cement Co., 150 Cal. App. 4th 864, 886 (2007).

REVERSED and REMANDED




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