                                                                             FILED
                            NOT FOR PUBLICATION
                                                                              JAN 7 2020
                     UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


GLORIA RODRIGUEZ,                                 No.   17-17379

              Plaintiff-Appellant,                D.C. No. 3:16-cv-04413-SK

 v.
                                                  MEMORANDUM*
COMCAST, INC., DBA Comcast Cable
Communications Management, LLC; et
al.,

              Defendants-Appellees.


                    Appeal from the United States District Court
                       for the Northern District of California
                      Sallie Kim, Magistrate Judge, Presiding

                      Argued and Submitted December 3, 2019
                             San Francisco, California

Before: THOMAS, Chief Judge, and W. FLETCHER and MILLER, Circuit
Judges.

      Gloria Rodriguez appeals the district court’s summary judgment in favor of

Comcast, Inc. in her diversity action alleging plaintiff’s job as a customer service

representative was terminated in violation of the California Fair Employment and


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Housing Act (“FEHA”). We have jurisdiction under 28 U.S.C. § 1291, and we

vacate and remand. Because the parties are familiar with the history of this case,

we need not recount it here.

       We review district court orders granting summary judgment de novo, Weiner

v. San Diego Cty., 210 F.3d 1025, 1028 (9th Cir. 2000), as well as the district

court’s interpretation of state law, Entm’t Research Grp., Inc. v. Genesis Creative

Grp., Inc., 122 F.3d 1211, 1216 (9th Cir. 1997).

                                             I

       The district court erred in granting summary judgment on Rodriguez’s

FEHA claims because of perceived inconsistencies between her representations to

the Social Security Administration regarding her disabling condition and her

FEHA claims. A close examination of the statements she made to the SSA

demonstrates that the statements were subject to multiple interpretations, which did

not rise to the level that invocation of judicial estoppel would be proper. See

Cleveland v. Policy Management Systems Corporation, 526 U.S. 795, 807 (1999)

(an application for social security benefits does not preclude other relief if the

statements made in the application process can be explained); see also New

Hampshire v. Maine, 532 U.S. 742, 750 (2001) (explaining that courts applying

judicial estoppel typically require that “a party’s later position . . . be ‘clearly


                                             2
inconsistent’ with its earlier position” (citations omitted)).

      Therefore, we must vacate the district court’s grant of summary judgment as

to Rodriguez’s claims for disability discrimination, failure to accommodate, and

failure to engage in an interactive process.

                                            II

      The district court also erred in granting summary judgment on the FEHA

retaliation claim. FEHA prohibits an employer from retaliating against an

employee for engaging in “protected activity.” See Yanowitz v. L’Oreal USA, Inc.,

116 P.3d 1123, 1130–31 (Cal. 2005). The district court granted summary

judgment in favor of Comcast on the grounds that, at the time of Rodriguez’s

employment, requests for reasonable accommodation, standing alone, did not

constitute “protected activity.” Rodriguez v. Comcast Inc., No. 16-CV-04413-SK,

2017 WL 6819932, at *5 (N.D. Cal. Nov. 8, 2017) (citing Rope v. Auto-Chlor Sys.

of Washington, Inc., 163 Cal. Rptr. 3d 392, 407 (Cal. Ct. App. 2013)).

      In 2015, however, the California legislature amended FEHA in response to

Rope. See 2015 Cal. Stat. 1669–74. This amendment was a clarification of

existing law, and not a substantive change, and thus it “properly applie[s] to

transactions predating its enactment.” Carter v. Cal. Dep’t of Veterans Affairs, 135

P.3d 637, 642 (Cal. 2006). In reaching this conclusion, we rely on a prediction that


                                            3
the Supreme Court of California would also hold that the 2015 amendment

clarified FEHA. See id. at 642–48 (analyzing whether a similar amendment to

FEHA was a clarification of existing law). The 2015 amendment explicitly

repudiated Rope, “mak[ing] clear” that “a request for reasonable accommodation”

is a “protected activity” under FEHA. See 2015 Cal. Stat. 1670. It also noted that

federal law protects from retaliation individuals who request accommodations, and

“affirm[ed]” that California law “has always exceeded [federal law] in the

protections afforded.” Id.

      At the time of Rodriguez’s employment, therefore, requests for

accommodation constituted protected activity under FEHA. We vacate the district

court’s grant of summary judgment to Comcast on Rodriguez’s retaliation claim

and remand for further proceedings.

                                          III

      Because we are vacating the district court’s grant of summary judgment with

respect to Rodriguez’s claims for disability discrimination, failure to

accommodate, failure to engage in an interactive process, and retaliation, we also

vacate the district court’s grant of summary judgment to Comcast with respect to

her claims for failure to prevent discrimination and wrongful termination in

violation of public policy and remand for further proceedings.


                                           4
      We need not, and do not, reach any other issue urged by the parties on

appeal or before the district court.



      VACATED AND REMANDED.




                                        5
                                                                          FILED
Rodriguez v. Comcast, Inc., No. 17-17379
                                                                           JAN 7 2020
MILLER, J., concurring in part and dissenting in part:                 MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS

      I join in the court’s disposition and reasoning, except as to part II. On an

issue governed by state law, we are “obligated to follow the decisions of the state’s

intermediate appellate courts” unless there is “convincing evidence that the state

supreme court would decide differently.” Ryman v. Sears, Roebuck & Co., 505

F.3d 993, 995 (9th Cir. 2007) (quoting Vestar Dev. II, LLC v. Gen. Dynamics

Corp., 249 F.3d 958, 960 (9th Cir. 2001)). The court offers plausible reasons to

think that the California Supreme Court might deem the 2015 amendment to

FEHA to have retroactive effect. In my view, however, those reasons are not

sufficiently convincing to justify disregarding the two published decisions of the

California Court of Appeal that have directly addressed this question and held that

the amendment does not apply retroactively. See Cornell v. Berkeley Tennis Club,

227 Cal. Rptr. 3d 286, 314 (Cal. Ct. App. 2017); Moore v. Regents of Univ. of Cal.,

206 Cal. Rptr. 3d 841, 867 (Cal. Ct. App. 2016).
