	

Filed 4/2/14 Fussell v. Timec CA2/7
                    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                          SECOND APPELLATE DISTRICT

                                                       DIVISION SEVEN

GARY FUSSELL,                                                                 B242823

          Plaintiff and Appellant,                                            (Los Angeles County
                                                                              Super. Ct. No. TC024635)
          v.

TIMEC COMPANY, INC.,                                                           ORDER MODIFYING OPINION
                                                                               AND DENYING REHEARING
          Defendant and Respondent.                                            (NO CHANGE IN JUDGMENT)



          THE COURT:
          It is ordered that the opinion filed here on March 3, 2014 be modified as follows:

    1. On page 23, in the first paragraph under the heading Basic Legal Principles, strike
“retaliation (§ 12940, subd. (h)),”.

    2. On page 27, in the third full paragraph beginning with the words, “In support of
his disability discrimination cause of action,” through the first five lines on page 28,
eliminate the added italics and strike “(Italics added.)” from the two places where it
appears in that paragraph.

    3. On page 28, the first full paragraph is revised to read as follows (striking the
paragraph as written and replacing it with): In other words, while it is true Fussell
specifically alleged discrimination on the basis of his physical disability arising out of his
termination on November 2, 2009, he also expressly and repeatedly alleged Timec’s
actions from October 29, 2009 forward demonstrated Timec had discriminated against
him based not only on his disability but also on his request for an accommodation.
Because of these additional allegations, Timec’s assertion Fussell cannot present
evidence he was “qualified” to work as a pipefitter/fabricator is irrelevant.


	
	


   4. On page 28, the second new paragraph that begins “A plaintiff may pursue a
discrimination claim . . .”and ends on page 29 with the citation to “(Code Civ. Proc.,
§ 437c, subd. (p)(2).)” is deleted.

      5. On page 29, footnote 16 is renumbered to become footnote 15.


      Respondent’s petition for hearing is denied. There is no change in the judgment.




      PERLUSS, P. J.                         WOODS, J.                         SEGAL, J.*




	
*		     Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.


	
	

Filed 3/3/14 (umodified version)
                    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                          SECOND APPELLATE DISTRICT

                                                       DIVISION SEVEN


GARY FUSSELL,                                                                 B242823

          Plaintiff and Appellant,                                            (Los Angeles County
                                                                              Super. Ct. No. TC024635)
          v.

TIMEC COMPANY, INC.,

          Defendant and Respondent.




                     APPEAL from a judgment of the Superior Court of Los Angeles County.
Lynn D. Olson, Judge. Reversed.


                     Purcell Law and Chris Purcell for Plaintiff and Appellant.


                     Littler Mendelson, Lindbergh Porter and Oswald B. Cousins for Defendant
and Respondent.


                                    ___________________________________




	
	


                                    INTRODUCTION
       The plaintiff filed a complaint alleging claims for disability discrimination and
failure to accommodate. Later, over plaintiff’s opposition, the trial court granted the
defendant employer’s motion for summary judgment. The plaintiff appeals. We reverse.


                     FACTUAL AND PROCEDURAL SUMMARY
       In September 2010, Gary Fussell filed a complaint against Timec Company, Inc.
(Timec), asserting causes of action for (1) disability discrimination and (2) failure to
accommodate disability.1 According to Fussell’s complaint, he worked as a pipe
fabricator at Timec’s operations in Los Angeles County for about a year before his
employment ended on November 2, 2009. According to Timec’s website, Fussell
alleged, Timec is the leading provider of asset management, maintenance, turnaround,
and small project services to the refining, oil and gas, mining, minerals processing,
petrochemical and food industries. Timec’s “turnaround” services for the oil industry
help refiners (such as Chevron) maintain and improve the efficiency and operations at
their refineries.
       As stated on Timec’s website, Fussell noted, “Timec has established a reputation
as an exemplary turnaround service provider with multiple disciplines executed
simultaneously during shutdown periods. . . .” Timec’s website claimed that “[f]or the
most efficient and well-managed turnaround solutions, companies consistently turn to
Timec due to its extensive experience, outstanding safety performance and unparalleled
results.”
       At all relevant times, Fussell alleged, he suffered from a physical disability that
required him to wear a leg brace on his left leg. He “never concealed” this disability, and
Timec hired him to perform turnaround work it was handling for Chevron at its El

	

1       Fussell alleged a third cause of action for negligence against Chevron U.S.A., but
that claim is not at issue in this appeal.

                                              2	
	
	


Segundo refinery. His duties often required Fussell to work on scaffolding or other
equipment at some distance above the ground. According to the complaint, Fussell
performed his duties wearing his leg brace, and the leg brace did not limit his ability to
work as a pipe fabricator. He was an exemplary employee, he alleged, receiving “5’s”
except for one 4 on a scale of 1-5 on his performance reviews.
       On October 27, 2009, Fussell alleged, his leg brace broke and was then unusable.
He immediately ordered a replacement from the brace manufacturer but was informed he
would not receive the replacement for several days. He reported to work as scheduled
the following day (October 28). He told his Timec supervisor his leg brace had broken
and asked if he could be given “ground duty,” meaning work that did not require him to
climb scaffolding or work above ground level, until his replacement brace arrived.
Fussell was qualified to perform many types of ground duty for Timec, including but not
limited to working in the machine shop. Fussell alleged Timec did not make a good faith
effort to ascertain whether ground duty existed that he was qualified to perform until his
brace arrived. He was told there was no work for him that day that did not involve
working above ground level.
       Fussell alleged he reported for work again on October 29 and again asked if he
could be given work at ground level. He still had not received his leg brace. His
supervisor again said the only jobs available for him that day required that he climb
scaffolding and work off the ground. Again, Fussell alleged Timec did not make a good
faith effort to ascertain whether ground duty existed that he was qualified to perform until
his brace arrived. Because he believed he would not be paid if he did not work, he
decided to attempt to work on the scaffolding. While working on the scaffolding, much
of which was covered with oil and was extremely slippery, Fussell alleged he slipped and
fell about 8 to 12 feet, landing on his back and suffering injuries. He saw a doctor and
was referred for an MRI. On October 30, Brad Glass, a Timec executive whose
responsibilities included safety standards and practices at the Chevron refinery
turnaround, authorized Fussell’s MRI, and it revealed significant back injuries.


                                             3	
	
	


       On October 31, Fussell spoke with Glass about the results of his medical and exam
and said he would be filing a Worker’s Compensation claim because of his injuries.
Glass told Fussell not to come to work the following day (November 1), indicating the
crew would not be working that day (a Sunday). Fussell also spoke with Bill Savoy, a
Timec Vice President who was in charge of operations at the Carson site, who told
Fussell: “‘[I]f I had known you wore a leg brace, you would never have been working for
me’ at Timec.” On November 1, contrary to what Glass had told him, Fussell learned the
Timec crew did in fact work that day.
       Although he was in pain from the injuries he suffered in the October 29 fall,
Fussell said he returned to work on November 2, intending to request ground duty. He
saw Glass and asked Glass why he had lied about the crew not working the day before.
Glass did not answer the question but told Fussell to wait in the office. Shortly thereafter,
Fussell was told he was being terminated, effective immediately. He was then asked to
sign a “Job Complete” form. The purpose of such a form was to indicate Fussell was
being terminated because the work he had been hired to perform had been completed, but
that representation was false. Timec pressured Fussell to sign the form by indicating his
medical benefits would be in jeopardy if he did not sign the form. On information and
belief, Fussell alleged (1) Timec pressured him to sign the form so it could claim he was
no longer working on the Chevron turnaround because his job was completed and not
because he was injured in an accident on the job; and (2) Timec intended to use the
signed “Job Complete” form to justify not reporting Fussell’s accident to Chevron
because, if reported, it would have to be considered a “lost time” accident which could
adversely affect Timec’s standing with Chevron. Because he was under duress and in
fear of losing his benefits, Fussell signed the Job Complete form. Before leaving the El
Segundo facility that day, Fussell asked to speak with a Chevron representative. Timec
informed him he was not allowed to speak to anyone from Chevron. A security guard
escorted him to his vehicle and ordered to wait there for his termination papers.




                                             4	
	
	


       Fussell alleged Timec terminated him on the basis of his disability and in
retaliation for his request for accommodation because of that disability and in retaliation
for his stated intention to file a workers compensation claim, in violation of the Fair
Employment and Housing Act (FEHA, Gov. Code § 12940 et seq.), and to keep him
from reporting his accident to Chevron. Fussell said Timec’s actions “in wrongfully
terminating [him], and otherwise discriminating against him, as alleged above,” were a
substantial factor in causing his various damages. (Italics added.) As a further direct and
proximate result of the “aforesaid acts of discrimination on the basis of Fussell’s physical
disability by [Timec],” Fussell had to employ doctors, mental health care providers and
other medical personnel to examine treat and care for him. (Fussell alleged he had filed a
complaint with the Department of Fair Employment and Housing (DFEH) alleging he
“had suffered discrimination and was terminated, on the basis of his disability as
described hereinabove, and was harassed and was denied an accommodation for his
physical disability, [and was] retaliated [against] for requesting an accommodation,”
and subsequently received a right-to-sue notice.) (Italics added.)
       From on or about October 28, 2009, Fussell further alleged, Timec discriminated
against him and harassed him on the basis of his physical disability by conduct including
but not limited to refusing to make any attempt to accommodate his physical disability
and then terminating him from his employment while he was temporarily unable to
perform his duties, in violation of his rights and without any legitimate business purpose
or reason.
       Timec answered, conducted discovery and later filed a motion for summary
judgment or adjudication. In its notice of motion, Timec asserted it was entitled to
summary adjudication of Fussell’s first cause of action for disability discrimination
because (1) “it is undisputed that Fussell was not qualified to work as a
Pipefitter/Fabricator at the time of his alleged termination and therefore cannot make a
prima facie case of disability discrimination[;]” and (2) “it is undisputed that Fussell was
laid off for a legitimate non-discriminatory reasons and there is no evidence of pretext.”
(Italics added.) Timec claimed entitlement to summary adjudication of Fussell’s second

                                              5	
	
	


cause of action for failure to accommodate because (1) “it is undisputed that Timec did
offer Fussell a reasonable accommodation for his alleged disability[;]” and (2) “it is
preempted by Workers Compensation Exclusivity.”2
       Fussell opposed Timec’s motion. He said Timec’s first argument (that Fussell had
no claim for disability discrimination because he was unqualified to work as a pipefitter
at the time of his termination) was disingenuous because Timec ignored the fact Fussell
had been injured because of Timec’s refusal to accommodate his temporary disability
which caused his long-term disability. Similarly, Timec’s second argument (that Fussell
was laid off for a legitimate non-discriminatory reason) was flawed given the fact Fussell
was terminated and not laid off. As for his second cause of action for failure to
accommodate his physical disability, Fussell cited to evidence that he could have
performed “ground work” but was not permitted to do so, and that in the construction
industry, telling Fussell he could either go work up on the scaffolding or “go home” was
not an offer of an accommodation but rather a threat to his job and again, because
Timec’s failure to accommodate his disability had caused his injury, workers
compensation exclusivity did not bar his claim.




	

2      Timec had also argued it was entitled to summary judgment of both Fussell’s first
and second causes of action because he failed to exhaust his administrative remedies
under the applicable collective bargaining agreement. However, in opposing Timec’s
motion, Fussell presented evidence, including testimony from Timec’s own employees
suggesting the job was not a “union job” and no collective bargaining agreement applied.
In addition, Fussell noted the agreement Timec submitted specified that any arbitration
award entered as a result of the grievance procedure was nonbinding on the company.
The trial court did not address this argument, and Timec has not reasserted it on appeal.


                                             6	
	
	


Timec’s Evidence That Fussell Was Not Qualified to Work as a Pipefitter/Fabricator in
Support of Its Motion for Summary Adjudication of Fussell’s First Cause of Action for
Disability Discrimination.
       Timec presented the following undisputed evidence in support of its claim it was
entitled to “summary judgment” (adjudication) of Fussell’s first cause of action for
disability discrimination because “Fussell was not qualified to work as a
Pipefitter/Fabricator at the time of his alleged termination and therefore cannot make a
prima facie case of disability discrimination[:]” Fussell’s duties as Pipefitter/Fabricator
were following blueprints for piping layouts and calculating the necessary piping,
fabricating and laying out pipes, demolishing piping, fitting up and installing various
piping systems, welding, and assisting other workers or helpers; the job is very physically
demanding, requiring that the worker be capable of working in a fast-paced environment,
working outdoors in all conditions, bending, squatting and kneeling to access tight
situations; climbing ladders and scaffolds and working at heights; Fussell claimed he fell
on October 29, 2009, injuring his back; he was treated at an on-site clinic and then went
to an off-site clinic in Long Beach for x-rays; he spent the remainder of the day either
getting medical treatment or at home; he experienced both dull and sharp pain, especially
if he twisted or bent down and was sore and bruised; he could not have performed
Pipefitter/Fabricator duties on October 29, October 30, October 31, or November 1, 2009,
or any day thereafter, and his doctors have told him he cannot perform any type of work,
including light duty work, and he has not been cleared to return to work at all.3
Timec’s Evidence Fussell Was Laid Off for Legitimate Non-Discriminatory Reasons (and
There Is No Evidence of Pretext) in Support of Its Motion for Summary Adjudication of
Fussell’s First Cause of Action for Disability Discrimination.
       Timec presented evidence it had policies in place prohibiting discrimination
against employees with disabilities and set forth procedures for providing reasonable

	
3      Fussell added that Timec told him not to report for work on November 1, 2009.

                                              7	
	
	


accommodations for employees with disabilities; turnarounds are staffed seven days a
week; Timec works with the customer to determine what type of work needs to be done,
what types and levels of skilled workers will be needed and how many people will be
needed at various stages of the project, starting with a relatively small crew and adding
workers until it reaches a peak, continuously reviewing and evaluating manpower needs
throughout the project; Fussell had worked as a pipefitter or fabricator in the oil industry
since finishing high school in 1998; from 2000 until 2009, Fussell moved around between
jobs and employers and refineries around the country; many of his prior jobs were
turnarounds that were temporary and varied in length (from weeks to months); when
Timec hired him in 2009, Fussell signed an “Employment Clarification” that stated work
was temporary and depended on the client’s needs such that no position was permanent
and assignments were often for a short duration; Fussell was hired to work as a fabricator
or pipefitter (“generally the same thing”); on October 26, Timec laid off nine employees
from the Chevron project, including four with Fussell’s job title (Fabricator 2) and two
Fabricator 1 workers; on October 28, another seven were released; on November 1, 38
employees were let go from the Chevron job, including 15 other Fabricator 2 workers and
6 Fabricator 1 workers; and laid off employees were still considered employed and
eligible for reassignment if and when they were interested and able to work again.
       Timec also said it was undisputed that Fussell was laid off—not terminated—from
his Chevron assignment on November 2, 2009, as part of a reduction in force, despite the
fact (Timec superintendent) Tracy Shirley “erroneously stated ‘job completion’ (code
“03”) as the reason,” stating as a further undisputed fact that “Shirley appears not to have
understood the distinction between the ‘01-Reduction in Force’ reason and the ’03-Job
Complete’ reason.”
       In opposing Timec’s motion in this regard (and in addition to objecting to Timec’s
characterization of Shirley’s actions, knowledge and intentions as speculative, lacking
personal knowledge and lacking foundation), Fussell responded with evidence he said
established he was fired, and not laid off. Not only did the form on which Timec relied
shows that Shirley wrote the words “Job Complete” and therefore did not simply make a

                                              8	
	
	


coding mistake as Timec claimed, but Fussell had also testified at his deposition that
when he objected to signing the form and questioned Shirley about the reason given,
Shirley told him “[his] job was over[;]” Shirley specifically stated, “‘Because your job’s
completed.’” Moreover, as further evidence he was fired (and not laid off), Fussell cited
his deposition testimony that, after he was injured, Timec Vice President Bill Savoy
asked him what happened, and Fussell told him “[his] leg brace was broke at the time,”
and because he had picked the brace up that Friday, showed it to him, saying, “This is my
AFO [ankle foot orthotic (AFO)—the leg brace Fussell wore].” Fussell testified Savoy
looked at it and said, “‘Well, if I known you was handicapped [sic], you wouldn’t be
working for me.’”
Timec’s Additional Undisputed Evidence Timec Did Offer Fussell a Reasonable
Accommodation in Support of Its Motion for Summary Adjudication of Fussell’s Second
Cause of Action for Failure to Accommodate.
       Before working for Timec, Fussell had suffered a workplace injury in 2008 which
resulted in a condition called compartment syndrome which caused “drop foot” in his left
leg; consequently, he wore an AFO for this condition. When he interviewed for a
position with Timec, recruiter Alex Perez noticed and asked about the orthotic, and
Fussell told him what it was. He did not ask for any accommodations. When Fussell was
hired for the Chevron turnaround, he was assigned to a crew responsible for demolishing
and replacing a very long water pipe that was more than 20 feet above ground, and
workers had to climb scaffolds and ladders to access it. When Fussell’s AFO broke on
October 25, 2009, he took it to the manufacturer for repair. Fussell’s supervisor Tracy
Shirley was helpful (Fussell’s response included a reference to his deposition testimony
that Shirley first attempted (unsuccessfully) to repair the AFO himself), and he allowed
Fussell to work in the tool room handing out tools (which was not skilled work) for the
rest of the day on October 25, October 26 and October 27. On October 28, Shirley told
Fussell he could no longer work in the tool room and needed to get out in the field.
Fussell told Shirley his AFO was not fixed yet and asked if there was any ground-level
work he could do. Shirley told Fussell to ask the foreman if there was any such work, the

                                             9	
	
	


foreman said there was not, and Shirley told Fussell, “Well, you can go work up in the
racks or you can go home.” Fussell worked on the scaffolding and pipe rack without
incident that day. The next day (October 29), Fussell’s AFO was not fixed yet, but
Fussell worked on the pipe again “because he had a family to support.”4
       In opposing Timec’s motion as to this issue, Fussell pointed to his deposition
testimony that when Shirley said “Go home,” it was a “construction term,” a “general
term” that meant “Pack your stuff up and go home.” Fussell testified Shirley “had an
attitude,” was “being snappy; and just by the way he said if I didn’t get over there and do
what they had work to be done [sic], to go home;” Fussell understood Shirley to mean
“he was threatened for his job.” Fussell noted Timec’s counsel had specifically asked
him at this deposition: “If he [Shirley] had said, ‘Look, you can take a couple days off of
work without pay and come back in here when your AFO is ready,’ would you have done
that?” Fussell answered: “I would have done that.”5 Timec’s counsel then asked
Fussell: “Isn’t it possible that’s what he was suggesting you do when he told you to go
home?” Fussell responded: “No,” and went on to describe Shirley’s “attitude” and
manner when the two men spoke.
Timec’s Additional Undisputed Evidence in Support of Its Motion for Summary
Adjudication of Fussell’s Second Cause of Action for Failure to Accommodate Based on
Workers Compensation Exclusivity.
       Fussell testified that while he was working on October 28, 2009, he observed a
large amount of oil on the scaffolding where he was supposed to work the next day. It
was “very visible” and could be seen from the ground. He “wasn’t surprised” given that

	
4      Timec also cited deposition testimony from its Human Resources Manager (Susan
Moats), stating Shirley did not have the authority to terminate Fussell. In response,
Fussell cited Shirley’s deposition testimony, stating he “was with everybody that gets
released by Timec,” as he (“or Pete”) “had to sign the paperwork.”

5       According to the record, Fussell’s AFO was ready on October 30, 2009 (the day
after his injury at Chevron).

                                            10	
	
	


he was working at an oil refinery. He testified he was “concerned” the oil would be
dangerous for him and there would be a “risk” he would “lose [his] footing” and fall from
the scaffolding. Earlier in the day on October 29, Fussell climbed the scaffold to where
the oil was to look over the job they were to do. He worked on the pipe despite his
concerns because “I’ve got a family to support.” That day, as he was climbing onto the
pipe from the scaffold, Fussell slipped and fell about four feet and landed on his back,
wedged between two pipes. He testified his fall was most likely caused by slipping on oil
rather than the fact he did not have his AFO, and he told people after his fall he had
slipped on oil. Fussell filed a workers compensation claim relating to his October 29,
2009 injury and has received workers compensation benefits for his injury at Timec.
       In opposition, Fussell again referred to his testimony he believed he was faced
with a choice between working on the scaffold or being fired if he did not work on the
pipe. Also, he referred to his deposition testimony when he was asked to describe how he
was injured: He testified he “really didn’t know,” but said he “remember[ed:]” “I led
with my left foot [the injured one], swung my right foot over to go down; and then next
thing you know I slipped.” Pressed further as to whether he had a “specific recollection”
that his right leg was the one that had slipped, he responded: “My left leg.” The “leg that
was on the scaffolding” was his left leg. He led with his left leg. The “last foot that was
on the scaffolding” was his “[l]eft leg.”
       Fussell added evidence that after he was diagnosed with compartment syndrome,
he wore his AFO to provide stability for his left leg and ankle to prevent fluid from
collecting and causing swelling; he “d[id]n’t really have much feeling” in parts of his left
leg.
       After hearing argument, the trial court read its tentative ruling into the record,
indicating it would become the court’s order.6 The written order ultimately executed by

	

6      In his Reply Brief, Fussell says there are discrepancies between the trial court’s
actual ruling as set forth in the reporter’s transcript and the order Timec’s counsel
	
                                             11	
	
	


the court reads as follows: “The defendant’s opposed motion for summary judgment is
granted.
             “Plaintiff was injured while working as a pipefitter at a refinery on a turnaround
assignment. Plaintiff slipped and fell from a scaffold, resulting in injuries. His
employment was terminated shortly thereafter. According to plaintiff, at the time of the
incident, defendant knew that plaintiff, who has compartment syndrome, was not wearing
his ankle orthotic.
             “Defendant provides evidence that the plaintiff’s fall and injury was caused by oil
on the work surface, not by the lack of the ankle orthotic. Plaintiff testified that the slip
and fall was caused by the oily surface. (See deposition at 141:15-22 and 149:20-
150:21.) He also testified that he told others that he had slipped on oil. (See deposition
at 91:14-20.)
             “Plaintiff provides no admissible evidence indicating that the lack of the ankle
orthotic caused his fall. At best, [p]laintiff offers testimony that he did not know whether
the lack of an orthotic could have contributed to his fall. (Depo 145:5-24.) This
testimony precedes the much clearer testimony on page 150 of the deposition that he
believes the oil was the cause. As the undisputed evidence indicates that the oil, and not
the failure to accommodate the disability was the cause of plaintiff’s injury and damages,
plaintiff’s causes of action are barred by the Worker’s Compensation exclusivity rule.
																																																																																																																																																																																			
prepared, emphasizing that the order Timec drafted included evidentiary rulings the trial
court never made. (The changes evident in the written order (additions, when compared
to the court’s ruling as set forth in the reporter’s transcript) are italicized in the text
quoted above.) According to the reporter’s transcript, the trial court directed Timec (as
the moving party) to prepare the order, and the order (as modified) bears the trial court’s
signature; Fussell does not identify and there is no indication of any objection made to
the content of the written order in the trial court. In its respondent’s appendix, Timec has
submitted a copy of a letter with the proposed order (as modified to include Timec’s
“unilateral[]” additions) as an attachment, requesting that Fussell communicate any
objections, and indicating a failure to respond within five days will be deemed an
approval, along with a FedEx delivery confirmation documenting receipt by Fussell’s
counsel on March 21, 2009—20 days before the trial court signed and filed the order (and
Timec served it on Fussell).

                                                                                      12	
	
	


(Undisputed Facts 91-99, 101-104.) The Court sustains defendant’s objections to Exhibit
H to the declaration of Chris Purcell [the October 29, 2009 incident report Fussell’s
attorney said Timec had produced in discovery, in which Timec safety officer Brad Glass
wrote Fussell normally wore an ankle brace to support his left ankle and foot but was not
wearing it that day “which according to Fussell was why he lost his footing and slipped”]
and to the Declaration of Jerry Hildreth [Fussell’s safety expert] and notes that such
evidence was not cited in response to Undisputed Facts 91-99, 101-104.[7]
       “Finally, the undisputed evidence indicates that as of the date when plaintiff’s
employment was terminated, plaintiff was no longer a qualified employee. He no longer
could (and he still cannot) perform essential job duties. (Undisputed Facts 10-22).”
       Fussell appeals from the judgment subsequently entered.
                                       DISCUSSION
       Regarding his cause of action for failure to accommodate, Fussell says triable
issues of fact exist as to (1) Timec’s efforts in the interactive process and (2) the
adequacy of the accommodation Timec allowed for Fussell’s known disability; as to his
disability discrimination cause of action, Fussell says triable issues exist as to whether (1)
he was fired because of his disability, (2) whether he was a qualified individual and (3)
whether he was precluded from work. In addition, he says neither worker’s
compensation exclusivity nor the collective bargaining agreement bar either of his causes
of action.8

	
	
7	     We conclude the judgment is properly reversed without consideration of any
purportedly excluded evidence but note that Timec itself presented evidence
acknowledging Fussell had identified the absence of his AFO as causing his injury (in
answering Savoy, for example, and leading to Savoy’s alleged statement he would never
have hired Fussell had he known of his disability). (And see Levy-Zentner Co. v.
Southern Pac. Transp. Co. (1977) 74 Cal.App.3d 762, 784 [finding admissible
employer’s incident report including employee’s documentation of plaintiff’s stated
cause of injury].)	


	
                                              13	
	
	


Standard of Review
             “We review the trial court’s grant of summary judgment de novo and decide
independently whether the facts not subject to triable dispute warrant judgment for the
moving party as a matter of law.” (Raine v. City of Burbank (2006), 135 Cal.App.4th
1215, 1221 (Raine), citing Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1348; Code
Civ. Proc., § 437c, subd. (c).)
FEHA’s Accommodation Requirements
             As we noted in Raine, supra, 135 Cal.App.4th 1215, “The California Fair
Employment Practice Act (former Lab. Code, § 1410 et seq.) enacted in 1959 and
recodified and included in FEHA in 1980 (Stat. 1980, ch. 992, § 4, p. 3140 et seq.)
established that freedom from discrimination in employment on specific grounds,
including disability, is a civil right and that such discrimination violates public policy.
(See Peralta Community College Dist. v. Fair Employment & Housing Com. (1990) 52
Cal.3d 40, 44 [276 Cal. Rptr. 114, 801 P.2d 357]; Dyna-Med, Inc. v. Fair Employment &

																																																																																																																																																																																			
8       Ordinarily, union members seeking redress for disputes within the scope of their
collective bargaining agreement (CBA) must follow the grievance procedures to which
the employer and the union have agreed, but collectively-bargained grievance procedures
need not be exhausted in certain cases, including an employee’s statutory discrimination
claims against the employer, unless the CBA contains a “clear and unmistakable” waiver
of the right to sue on such claims. (Chin et al., Cal. Practice Guide: Employment
Litigation (The Rutter Group 2012) ¶¶ 16:345 to 16:359, pp. 16-52 to 16-54; and see
Ortega v. Contra Costa Community College Dist. (2007) 156 Cal.App.4th 1073, 1085
[addressing FEHA claim].) Here, according to the CBA Timec sought to enforce, any
arbitration would be “non-binding” (and the remaining CBA pages Timec cited in
support of its motion in the trial court—pages 23 and 24 of “Article Thirteen—Grievance
and Arbitration Procedure” were not provided in the record). Although Fussell addressed
Timec’s collective bargaining argument in his opening brief, Timec (like the trial court)
has ignored it. Accordingly, leaving to one side any factual dispute regarding the
application of the CBA to Fussell’s employment in the first instance, it appears Timec
has abandoned its argument it was entitled to summary judgment on the basis of Fussell’s
failure to exhaust collective bargaining grievance procedures, the record does not contain
evidence in support of such an argument, and Timec was not entitled to summary
judgment on this ground under the applicable law in any event. 	


                                                                                      14	
	
	


Housing Com. (1987) 43 Cal.3d 1379 [241 Cal. Rptr. 67, 743 P.2d 1323].) In 1992 the
Legislature amended FEHA to incorporate as part of state law the protections adopted by
Congress in the federal ADA.[9]
       “As currently written FEHA prohibits as an unlawful employment practice, unless
based upon a bona fide occupational qualification, the discharge of an employee because
of the employee’s physical disability (§ 12940, subd. (a)) except when the employee’s
disability renders the employee ‘unable to perform his or her essential duties[10] even
with reasonable accommodations . . . .’ (§ 12940, subd. (a)(1); see City of Moorpark v.
Superior Court (1998) 18 Cal.4th 1143, 1160 [77 Cal. Rptr. 2d 445, 959 P.2d 752]
[FEHA recognizes the fact employer may have valid reasons to treat disabled employees
differently from nondisabled employees if the disabled employee is unable to perform
essential duties even with reasonable accommodation].) It is also unlawful, and
separately actionable under FEHA, for an employer ‘to fail to make reasonable
accommodation for the known physical or mental disability of an applicant or employee’
unless the accommodation would cause ‘undue hardship’ to the employer. (§ 12940,
subd. (m); see Spitzer v. Good Guys, Inc. (2000) 80 Cal.App.4th 1376, 1383 [96 Cal.
Rptr. 2d 236] (Spitzer).)
       “Generally, ‘“[t]he employee bears the burden of giving the employer notice of the
disability. [Citation.] This notice then triggers the employer’s burden to take ‘positive
steps’ to accommodate the employee’s limitations. . . . [¶] . . . The employee, of course,
retains a duty to cooperate with the employer’s efforts by explaining [his or] her

	
9		    “The Legislature declared its intent ‘to strengthen California law in areas where it
is weaker than the Americans with Disabilities Act of 1990 (Public Law 101-336) and to
retain California law when it provides more protection for individuals with disabilities
than the Americans with Disabilities Act of 1990.’ (Stats. 1992, ch. 913, § 1, p. 4282.)”
(Raine v. City of Burbank (2006) 135 Cal.App.4th 1215, 1222, fn. 3.)
10		   “‘Essential duties’ means the ‘fundamental job duties of the employment position
the individual with a disability holds or desires.’ (§ 12926, subd. (f).)” (Raine, supra,
135 Cal.App.4th at p. 1222, fn. 4.) 	

                                            15	
	
	


disability and qualifications. [Citation.] Reasonable accommodation thus envisions an
exchange between employer and employee where each seeks and shares information to
achieve the best match between the employer’s capabilities and available positions.’
[Citation.]’ (Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 950 [62 Cal.
Rptr. 2d 142].)” (Raine, supra, 135 Cal.App.4th at pp. 1221-1222.)


A Triable Issue of Material Fact Exists as to Whether Timec Offered Fussell a
Reasonable Accommodation.
       Timec does not dispute that it knew of Fussell’s disability (compartment syndrome
or “drop foot”) for which he wore his AFO. Indeed, Timec’s recruiter (Perez) testified
that he noticed Fussell’s limp, discussed it with Fussell who showed Perez his AFO and
Fussell told Perez he could perform all job responsibilities as long as he wore the brace.
Furthermore, Timec knew Fussell’s AFO had broken as Fussell’s supervisor (Shirley)
attempted to fix it but was unsuccessful, and Fussell then took it to the manufacturer for
repair. Because Timec had notice of Fussell’s disability and resulting need for his AFO,
such notice triggered Timec’s burden to take “positive steps” to accommodate Fussell’s
limitations. (Prilliman, supra,53 Cal.App.4th at p. 950 [“Reasonable accommodation
thus envisions an exchange between employer and employee where each seeks and shares
information to achieve the best match between the employer’s capabilities and available
positions”].)
       Here, Timec assigned Fussell to work in the tool room for the remainder of the day
on October 25, October 26 and October 27. On October 28, however, according to
Fussell’s testimony, Shirley told Fussell he could no longer work in the tool room and
needed to get out in the field. According to Fussell’s deposition testimony, although
Fussell told Shirley his brace was not ready yet and asked for ground work, Shirley told
Fussell: “[Y]ou can go work up in the racks or you can go home.” Fussell further
testified, based on the change in Shirley’s “attitude”—like he was “ticked off”—and
Fussell’s understanding of “go home” as a “general” “construction term” meaning “Pack
your stuff and go home,” Fussell understood Shirley to mean “he was threatened for his

                                            16	
	
	


job” if he “didn’t get over there and do what they had work to be done [sic].”
       Timec argued that Shirley’s statements could only mean Timec offered Fussell the
option of going home until his brace was repaired, and that doing so was a “reasonable
accommodation.” It is true that “FEHA does not obligate an employer to choose the best
accommodation or the specific accommodation a disabled employee or applicant seeks.
(Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 228 [87 Cal. Rptr. 2d 487].) It
requires only that the accommodation chosen be ‘reasonable.’ (§ 12940, subds. (a) &
(m).) Although FEHA does not define what constitutes ‘reasonable accommodation’ in
every instance, examples provided in the statute itself and the regulations governing its
implementation include job restructuring, part-time or modified work schedules or
‘reassignment to a vacant position.’ (§ 12926, subd. (n)(2); Cal. Code Regs., tit. 2, §
7293.9, subd. (a)(2); see also Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245,
266 [102 Cal. Rptr. 2d 55] (Jensen).)” (Raine, supra, 135 Cal.App.4th at p. 1222.)
       “The question of reasonable accommodation is ordinarily a question of fact . . . .”
(Raine, supra, 135 Cal.App.4th at p. 1227, fn. 11; Bell v. Wells Fargo Bank (1998) 62
Cal.App.4th 1382, 1389.) On this record, although a jury could believe Timec’s assertion
that Shirley offered Fussell the option of going home but Fussell chose to work on the
scaffolding without it because he did not want to lose money (see Jensen, supra, 85
Cal.App.4th at p. 263 [“Holding a job open for a disabled employee who needs time to
recuperate or heal is in itself a form of reasonable accommodation and may be all that is
required where it appears likely that the employee will be able to return to an existing
position at some time in the foreseeable future. [Citation.]”]), a jury could also conclude
(as Fussell maintains) Shirley’s comments communicated to Fussell that his only options
were to climb the scaffolding and work above ground without his AFO or lose his job. In
fact, Timec’s own separate statement acknowledges and relies upon Fussell’s testimony
that on October 28, 2009, Shirley told Fussell he could no longer work in the tool room
and needed to be out in the field—with full knowledge that Fussell’s AFO was still not
fixed and Fussell had requested ground level work at the time. Therefore, a triable issue
of material fact exists as to whether Timec offered Fussell a reasonable

                                             17	
	
	


accommodation.11 (Bell v. Wells Fargo Bank (1999) 62 Cal.App.4th 1382, 1389, fn. 6.)
Fussell’s Claims Are Not Barred by Worker’s Compensation Exclusivity.12
          Subdivision (a) of Labor Code section 3600 provides that, subject to certain
further specified exceptions and conditions, workers’ compensation liability, “in lieu of
any other liability whatsoever[,]” will exist against an employer for any injury sustained
by its employees arising out of and in the course of their employment. As relevant, the
statute specifies: “Liability for the compensation provided by this division, in lieu of any
other liability whatsoever to any person . . . shall, without regard to negligence exist
against an employer for any injury sustained by [its] employees arising out of and in the
course of the employment and for the death of any employee if the injury proximately
causes death, in those cases where the following conditions of compensation
concur . . . .” (Lab. Code, § 3600, subd. (a).) The conditions of compensation applicable
here include: “(1) Where, at the time of the injury, both the employer and the employee
are subject to the compensation provisions of this division. [¶] (2) Where, at the time of
the injury, the employee is performing service growing out of and incidental to his or her
employment and is acting within the course of his or her employment. [¶] (3) Where the
injury is proximately caused by the employment, either with or without negligence.”
(Ibid.)
          Subdivision (a) of Labor Code section 3602 then provides: “Where the conditions
of compensation set forth in Section 3600 concur, the right to recover compensation
is . . . the sole and exclusive remedy of the employee . . . against the employer. . . .”
Proceedings “[f]or the recovery of compensation, or concerning any right or liability
	
11		   Because we find triable issues of material fact exist and therefore preclude
summary adjudication of Fussell’s failure to accommodate claim, we need not address
the issue of whether Timec failed to engage in the interactive process.
	
12     Although Timec only sought summary adjudication of Fussell’s failure to
accommodate cause of action on this ground, the trial court identified workers’
compensation exclusivity in its order granting summary judgment. In any case, the same
reasoning applies to both of Fussell’s claims against Timec.

                                              18	
	
	


arising out of or incidental thereto” shall be “instituted before the [workers’
compensation] appeals board and not elsewhere, except as otherwise provided in Division
4 . . . .” (Lab. Code, § 5300, subd. (a).)


       As the court in Huffman v. Interstate Brands Corp. (2004) 121 Cal.App.4th 679
(Huffman) noted: “The underlying purpose of these exclusivity provisions is the
presumed “‘compensation bargain.’” (Shoemaker v. Myers (1990) 52 Cal.3d 1, 16 [276
Cal. Rptr. 303, 801 P.2d 1054].) The bargain according to the Shoemaker court is that
‘the employer assumes liability for industrial personal injury or death without regard to
fault in exchange for limitations on the amount of that liability. The employee is afforded
relatively swift and certain payment of benefits to cure or relieve the effects of industrial
injury without having to prove fault but, in exchange, gives up the wider range of
damages potentially available in tort. [Citations.]’ (Ibid.)
       “Certain types of injurious employer misconduct, however, remain outside the
bargain. ‘There are some instances in which, although the injury arose in the course of
employment, the employer engaging in that conduct ‘“stepped out of [its] proper role[]”’
or engaged in conduct of ‘“questionable relationship to the employment.”’ [Citations.]’
(Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701, 708 [30 Cal. Rptr. 2d 18, 872 P.2d 559].)”
(Huffman, supra, 121 Cal.App.4th at pp. 693-694.)
       “Employer actions that violate a fundamental public policy . . . are exempt from
the exclusive remedy provisions of the [Worker’s Compensation Act] WCA because they
‘cannot under any reasonable viewpoint be considered a “normal part of the employment
relationship.”’ (Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1100 [4 Cal. Rptr. 2d
874, 824 P.2d 680], overruled on other grounds in Green v. Ralee Engineering Co.
(1998) 19 Cal.4th 66, 80, fn. 6 [78 Cal. Rptr. 2d 16, 960 P.2d 1046]; see also City of
Moorpark v. Superior Court (1998) 18 Cal.4th 1143, 1154–1155 [77 Cal. Rptr. 2d 445,
959 P.2d 752].)” (Huffman, supra, 121 Cal.App.4th at p. 695.) It is “well settled” that
FEHA claims are exempt from the exclusivity provisions. (Id. at p. 695, fn. 7.)
       In Huffman, as the jury had found the motive for the plaintiff’s demotion was age

                                             19	
	
	


discrimination—taking it outside the scope of the compensation bargain—the issue for
the court’s determination was “the scope of the exclusive remedy provisions of the WCA
when a subsequent workplace injury follows an allegedly unlawful demotion that is
concededly outside the compensation bargain.” (Huffman, supra, 121 Cal.App.4th at p.
695 & fn. 8.) The case presented a “new ‘twist’ in determining the scope of the
exclusivity provision when two acts, one of which is exempt from the exclusivity
provisions, might be the cause of the alleged injury.” (Id. at p. 695.) As Huffman was
the “first case to address this issue[,]” each of the parties proffered proposed tests for
resolving the issue, but the court rejected both in favor of the “traditional tort ‘substantial
factor’ test.” (Id. at p. 696.)
       “We conclude that the better approach to determine whether the exclusivity
provisions apply to a subsequent injury following an unlawful act, such as a
discriminatory demotion, is to determine whether the discriminatory conduct (i.e., the
demotion) was a substantial factor in the subsequent industrial [knee] injury. We do not
attempt to define the word ‘substantial’ but note that the conduct must have an effect in
producing the injury or harm to regard it as a cause and that it must be more than slight,
theoretical, trivial, or negligible to be a substantial factor.[] “‘If the conduct which is
claimed to have caused the injury had nothing at all to do with the injuries, it could not be
said that the conduct was a factor, let alone a substantial factor, in the production of the
injuries.” [Citation.]’ (Mitchell v. Gonzales (1991) 54 Cal.3d 1041, 1052 [1 Cal. Rptr.
2d 913, 819 P.2d 872].)” (Huffman, supra, 121 Cal.App.4th at p. 696, footnote omitted.)
“In sum, we conclude that in order to be exempt from the exclusive remedy provisions of
the WCA the unlawful act must be a substantial factor in the subsequent injury.” (Id. at
p. 698.)
       Applying the substantial factor test to the facts in Huffman and emphasizing that
the plaintiff (Huffman) had alleged and the jury believed the employer (IBC) unlawfully
demoted Huffman because of his age, the court concluded the plaintiff’s alleged unlawful
demotion was not a substantial factor in his subsequent knee injury. (Huffman, supra,
121 Cal.App.4th at p. 698.) “Had Huffman alleged a disability discrimination or failure-

                                              20	
	
	


to-accommodate claim,” the Huffman court observed, “there is no doubt” his damages
arising from his knee injury would have been exempt from the exclusive remedy
provisions. (Ibid., italics added.)


       “In such a case, unlike the one presented, the unlawful demotion to a position in
which the employer knew the employee could not perform because of a physical disability
would be a substantial factor in subsequent workplace injury sustained by that employee
while attempting to perform his or her job duties. We emphasize that is not the situation
here. Huffman claimed, and the jury believed, that he had been demoted because of his
age and replaced by a younger man. Although Huffman told [supervisors] Cooper and
Laughlin that he could not meet the physical requirements of a division sales manager, he
assumed that position and performed that job until the spring of 2000. Huffman then
sought medical attention for his knee injury and in August 2000, he reported the injury to
IBC. The injury Huffman sustained was because of the physical requirements of the job,
which all division sales managers were required to perform, not because he was
unlawfully replaced as a district manager by a younger man. Thus, IBC’s decision to
demote Huffman was unrelated to the subsequent injury and not a substantial factor in
that injury.” (Id. at p. 698, italics added.) Notably, Huffman’s “discrimination claim was
based on his age, not on any physical disability or inability to do the division sales
manager job,” and there was no evidence his knee injury was related to his age. (Id. at p.
699, italics added.) There was no evidence Huffman’s duties or responsibilities were
assigned for an unlawful purpose. (Ibid.) The Huffman court found that the theory
Huffman proposed—that whenever a discriminatory act occurs, any subsequent work
injury is exempt from workers’ compensation exclusivity—would permit an employee to
circumvent the workers’ compensation system by asserting a discrimination claim “even
if the injury was unrelated and remote in time to the discriminatory conduct.” (Huffman,
supra, 121 Cal.App.4th at p. 699.)
       Unlike the facts actually presented in Huffman -- but under almost precisely the
very circumstances contemplated as distinguishable by the Huffman court -- Fussell has

                                             21	
	
	


alleged both disability discrimination and failure to accommodate claims. Moreover, he
has proffered evidence in support of his claim that Timec unlawfully discriminated
against him and failed to accommodate his disability such that Timec placed him in a
position in which it knew he could not perform because of his physical disability (for
which he simply required his AFO to continue to work above ground). Consequently, in
this case, for purposes of Timec’s motion for summary adjudication, a triable issue of
material fact exists as to whether Timec’s failure to accommodate Fussell’s disability was
a substantial factor in causing his subsequent workplace injury. (Huffman, supra, 121
Cal.App.4th at p. 698 [“Had Huffman alleged a disability discrimination or failure-to-
accommodate claim,” there is “no doubt” damages arising from his knee injury would
have been exempt from the exclusive remedy provisions. In such a case, unlike the one
presented, the unlawful demotion to a position in which the employer knew the employee
could not perform because of a physical disability would be a substantial factor in
subsequent workplace injury sustained by that employee while attempting to perform his
or her job duties”].)
       To the extent the trial court sidestepped the issues presented by concluding that
summary judgment was properly granted on the issue of “causation”—based on evidence
Fussell slipped on oil, we find the trial court erred. Any evidence Fussell slipped on oil is
not “utterly irreconcilable” with Fussell’s claims that Timec’s failure to accommodate his
disability and discrimination against him on the basis of that disability (by forcing him to
work “up on the racks” or be terminated despite Timec’s knowledge Fussell’s AFO was
broken and had not yet been repaired) was a substantial factor in causing his subsequent
injury.13 (Bell v. Wells Fargo Bank, supra, 62 Cal.App.4th at p. 1389; see also Cole v.
Town of Los Gatos (2012) 205 Cal.App.4th 749, 769 [plaintiff may pursue theory of
multiple causes of injury].) It follows that summary adjudication on this ground was

	
13     Indeed, Fussell testified his left leg – the leg on which he needed his AFO – was
the leg that slipped on the scaffolding.


                                             22	
	
	


improper. (Huffman, supra, 121 Cal.App.4th at p. 698; see also Jones v. Los Angeles
Community College Dist. (1988) 198 Cal.App.3d 794, 809).
Timec Was Not Entitled to Summary Adjudication of Fussell’s Disability
Discrimination Claim.
       Fussell argues Timec ignored the allegations of his complaint in framing its issues
for summary adjudication, emphasizing in particular the discriminatory course of conduct
he says he alleged to have occurred before he was terminated. He says he was qualified
to work as a pipefitter/fabricator despite his disability as the evidence established he was
qualified and capable of working on the scaffolding as long as he wore his leg brace, and
there were alternative duties he could have performed while he waited the few days
needed for his AFO leg brace to be repaired. “The fact that [his] subsequent back injuries
occurred due to defendant Timec’s discriminatory conduct should not excuse Timec from
being held responsible under FEHA.” (Original italics.)
       According to Timec, it was entitled to summary adjudication of Fussell’s disability
discrimination claim because it was undisputed that (1) “Fussell was not qualified to
work as a Pipefitter/Fabricator at the time of his alleged termination and therefore cannot
make a prima facie case of disability discrimination” and (2) “Fussell was laid off for
legitimate nondiscriminatory reasons and there is no evidence of pretext.” (Italics
added.)
Basic Legal Principles.
       FEHA establishes separate causes of action for a range of “‘unlawful employment
practices,’” including disability discrimination (§ 12940, subd. (a)), retaliation (§ 12940,
subd. (h)), failure to make reasonable accommodation for the known disability of an
employee (§ 12940, subd. (m)) and failure to engage in the good faith interactive process
to determine a reasonable accommodation (§ 12940, subd. (n)). (See Lui v. City and
County of San Francisco (2012) 211 Cal.App.4th 962, 970.)
       Given “the similarity between state and federal employment discrimination laws,
California courts look to pertinent federal precedent when applying our own statutes.
[Citation.] In particular, California has adopted the three-stage burden-shifting test

                                             23	
	
	


established by the United States Supreme Court for trying claims of discrimination . . . .”
(Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354 (Guz); Wills v. Superior Court
(2011) 195 Cal.App.4th 143, 159 (Wills).)
       “This so-called McDonnell Douglas test reflects the principle that direct evidence
of intentional discrimination is rare, and that such claims must usually be proved
circumstantially. Thus, by successive steps of increasingly narrow focus, the test allows
discrimination to be inferred from facts that create a reasonable likelihood of bias and are
not satisfactorily explained.” (Guz, supra, 24 Cal.4th at p. 354.)
       “In the first stage, the plaintiff bears the burden to establish a prima facie case of
discrimination. (Guz, supra, 24 Cal.4th at p. 354.) The burden in this stage is “‘not
onerous’” (id. at p. 355), and the evidence necessary to satisfy it is minimal [citation].
On a disability discrimination claim, the prima facie case requires the plaintiff to show
‘he or she (1) suffered from a disability, or was regarded as suffering from a disability;
(2) could perform the essential duties of the job with or without reasonable
accommodations, and (3) was subjected to an adverse employment action because of the
disability or perceived disability.’ (Ibid.)” (Wills, supra, 195 Cal.App.4th at p. 159.)
       “If the plaintiff meets this burden, “‘“the burden shifts to the defendant to
[articulate a] legitimate nondiscriminatory reason for its employment
decision . . . .’ . . . ”’ (Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 342–343 [77
Cal. Rptr. 3d 654], original alteration (Arteaga).) This likewise is not an onerous burden
(Board of Trustees v. Sweeney (1978) 439 U.S. 24, 25, fn. 2 [58 L. Ed. 2d 216, 99 S.Ct.
295]), and is generally met by presenting admissible evidence showing the defendant’s
reason for its employment decision (Scotch v. Art Institute of California (2009) 173
Cal.App.4th 986, 1004 [93 Cal. Rptr. 3d 338] (Scotch)).
       “Finally, if the defendant presents evidence showing a legitimate,
nondiscriminatory reason, the burden again shifts to the plaintiff to establish the
defendant intentionally discriminated against him or her. (Reeves v. Sanderson Plumbing
Products, Inc. (2000) 530 U.S. 133, 142 [147 L. Ed. 2d 105, 120 S.Ct. 2097] (Reeves).)
The plaintiff may satisfy this burden by proving the legitimate reasons offered by the

                                              24	
	
	


defendant were false, creating an inference that those reasons served as a pretext for
discrimination. (Ibid.)” (Wills, supra, 195 Cal.App.4th at pp. 159-160.)
        “A defendant’s summary judgment motion “‘slightly modifies the order of these
[McDonnell Douglas] showings.’” (Wills, supra, 195 Cal.App.4th at p. 160, citation
omitted.) On summary judgment (or adjudication), the defendant has the initial burden to
either (1) negate an essential element of the plaintiff’s prima facie case (Arteaga, supra,
163 Cal.App.4th at p. 344) or (2) establish a legitimate, nondiscriminatory reason for
terminating the plaintiff (Scotch, supra, 173 Cal.App.4th at p. 1005). (Wills, supra, 195
Cal.App.4th at p. 160.)
        Then, “‘[T]o avoid summary judgment [once the employer makes the foregoing
showing], an employee claiming discrimination must offer substantial evidence that the
employer’s stated nondiscriminatory reason for the adverse action was untrue or
pretextual, or evidence the employer acted with a discriminatory animus, or a
combination of the two, such that a reasonable trier of fact could conclude the employer
engaged in intentional discrimination.’ [Citation.]” (Wills, supra, 195 Cal.App.4th at p.
160.)
Qualified Employee Analysis.
        Citing Green v. State of California (2007) 42 Cal.4th 254, 262 (Green), Timec
argues Fussell has acknowledged that he has been unable to perform the demands of his
job as a pipefitter/fabricator since his injury on October 29, 2009, and therefore cannot
establish that he was a qualified employee with a disability, a necessary element of his
prima facie case. Timec says Fussell’s argument that his inability to prove he was a
qualified employee at the time of his termination should be excused given his disability
was caused by Timec’s conduct is not supported by any authority.
        In Green, supra, 42 Cal.4th at page 262, in addressing a disability discrimination
claim pursuant to subdivision (a) of section 12940, our Supreme Court determined that
“in order to establish that a defendant employer has discriminated on the basis of




                                             25	
	
	


disability in violation of the FEHA, the plaintiff employee bears the burden of proving he
or she was able to do the job, with or without reasonable accommodation.”14 Notably,
the Green court observed that federal case law interpreting the Americans with
Disabilities Act (ADA) is clear that the employee bears the burden of meeting the
definition of “qualified individual with a disability.” (Id. at p. 261.) “The reason is clear;
it is not unlawful under federal law to draw a distinction on the basis of a disability if that
disability renders an employee unqualified, with or without reasonable accommodation,
to perform the essential functions of a position. (Id. at pp. 261-262.) Similarly, “[b]y its
terms, section 12940 makes it clear that drawing distinctions on the basis of physical or
mental disability is not forbidden discrimination in itself. Rather, drawing these
distinctions is prohibited only if the adverse employment action occurs because of a
disability and the disability would not prevent the employee from performing the
essential duties of the job, at least not with reasonable accommodation.” (Id. at p. 262.)
       Applying the reasoning in Green, we reject Timec’s argument that it should make
no difference whether (if Fussell’s account is believed) Timec caused the very disability
that rendered him unqualified to work as a pipefitter/fabricator with or without reasonable
accommodation. It is undisputed that, although he had “drop foot” as a result of an
earlier injury (that caused his compartment syndrome), Fussell was able to perform his
job duties at elevation as long as he wore his AFO leg brace to support and stabilize his
left leg. Without the AFO, despite the fact he had “drop foot,” he was still able to
	
14		   Government Code section 12940, subdivision (a) provides: “It is an unlawful
employment practice, unless based upon a bona fide occupational qualification, or, except
where based upon applicable security regulations established by the United States or the
State of California: (a) For an employer, because of the race, religious creed, color,
national origin, ancestry, physical disability, mental disability, medical condition, genetic
information, marital status, sex, gender, gender identity, gender expression, age, sexual
orientation, or military and veteran status of any person, to refuse to hire or employ the
person or to refuse to select the person for a training program leading to employment, or
to bar or to discharge the person from employment or from a training program leading to
employment, or to discriminate against the person in compensation or in terms,
conditions, or privileges of employment.” (Italics added.)	

                                              26	
	
	


perform pipefitter/fabricator duties on the ground, and his repaired leg brace was
expected to arrive within another day or so. Yet, if Fussell’s evidence is credited, he was
ordered to work up on the scaffolding or be fired. Under these circumstances, if he was
rendered unqualified to perform his job duties, it was only because of Timec’s prior
failure to accommodate his disability (drop foot, simply requiring an AFO/leg brace) that
led to an altogether different and perhaps permanent disability arising from the significant
back injuries suffered in the October 29, 2009 fall.
       In other words, we see no inconsistency with the Green decision in concluding
that, when there is evidence that an employer—as a result of a prior FEHA violation
(such as the failure to reasonably accommodate a known physical disability) causes the
very disability that renders the employee unqualified to perform the essential duties of a
particular job going forward, the defendant is not entitled to summary adjudication of a
discrimination cause of action on the ground the plaintiff cannot establish status as a
“qualified” employee. (Green, supra, 42 Cal.4th at pp. 261-262.)
       Moreover, even without reaching the question of whether Fussell must establish he
was a “qualified” employee to withstand summary adjudication of a discrimination claim
within the meaning of subdivision (a) of section 12940, Fussell also argues that Timec
failed to address all of the conduct Fussell alleged to be discriminatory in support of his
first cause of action. “It is the allegations in the complaint to which the summary
judgment motion must respond.” (Laabs v. City of Victorville (2008) 163 Cal.App.4th
1242, 1258; Code Civ. Proc., § 437c, subd. (b)(1), italics added [summary judgment or
adjudication motion must show the “material facts” are undisputed].)
       In support of his disability discrimination cause of action, Fussell specifically
alleged Timec terminated him on the basis of his disability and in retaliation for his
request for accommodation because of that disability and in retaliation for his stated
intention to file a worker’s compensation claim, in violation of the Fair Employment and
Housing Act (FEHA, Gov. Code § 12940 et seq.), and to keep him from reporting his
accident to Chevron. Further, in support of the disability discrimination claim (as
distinguished from his failure to accommodate claim), he expressly stated Timec’s

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actions “in wrongfully terminating [him], and otherwise discriminating against him, as
alleged above,” were a substantial factor in causing his damages—including not only his
financial and other such damages but also his potentially “permanent disabilit[y]” and
related damages. (Italics added.) He reiterated in several paragraphs of his disability
discrimination cause of action that, as a further direct and proximate result of the
“aforesaid acts of discrimination [by Timec] on the basis of Fussell’s physical disability,”
he had suffered various forms of damage further identified in his complaint. Similarly,
he alleged he had filed a complaint with the Department of Fair Employment and
Housing (DFEH) alleging he “had suffered discrimination and was terminated, on the
basis of his disability as described hereinabove, and was harassed and was denied an
accommodation for his physical disability, [and was] retaliated [against] for requesting
an accommodation,” and subsequently received a right-to-sue notice. (Italics added.)
       In other words, while it is true Fussell specifically alleged discrimination on the
basis of his physical disability arising out of his termination on November 2, 2009, he
also expressly and repeatedly alleged Timec’s actions from October 29, 2009 forward,
demonstrated Timec had discriminated against him and retaliated against him for
requesting such accommodation. Because Fussell also alleged he was terminated on
November 2, 2009 in retaliation for requesting reasonable accommodation of his prior
disability, Timec’s assertion Fussell cannot present evidence he was “qualified” to work
as a pipefitter/fabricator is irrelevant.
       A plaintiff may pursue a disability discrimination claim based on retaliation as it
is an unlawful employment practice for any employer “to discharge, expel, or otherwise
discriminate against any person because the person has opposed any practices forbidden
under this part or because the person has filed a complaint, testified, or assisted in any
proceeding under this part.” (§ 12940, subd. (h).) For a disability discrimination claim
based on retaliation, a plaintiff need not establish status as a “qualified” employee.
Instead, a discrimination claim based on retaliation requires proof that the plaintiff
believed he or she suffered discrimination as a result of his or her physical disability by
(1) engaging in protected activity by opposing discrimination and seeking a reasonable

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accommodation, (2) he or she was subjected to adverse employment action and (3) a
causal link existed between the protected activity and the employer’s action.15 (Yanowitz
v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042-1043.) Timec did not even attempt to
address Fussell’s allegations of discrimination based on retaliation for requesting
reasonable accommodation and therefore did not meet its initial burden of proof in this
regard. (Code Civ. Proc., § 437c, subd. (p)(2).)
       Timec also argued it was entitled to summary adjudication because the evidence
was undisputed that Fussell was laid off for a legitimate nondiscriminatory reason and
there is no evidence of pretext. However, as Fussell argues, Timec misconstrues the
record. Leaving to one side the question of whether Fussell was laid off or terminated as
unnecessary for purposes of this discussion, Timec relies on the argument that, for
example, in completing the form in which an inaccurate reason was cited for Fussell’s
termination, his supervisor (Tracy Shirley) “appears” to have “simply misunderstood” the
coding—a claim which is plainly only one possible construction of the evidence—
especially given the fact Shirley also specifically wrote out the words “Job Complete.”
Fussell presented evidence that Shirley seemed to have a negative “attitude” when he
ordered Fussell “up on the racks” (after allowing him to work on the ground earlier)
despite the knowledge his AFO leg brace was not yet repaired; he presented evidence that
Glass had told him no one was working on November 1 but later learned his crew did
work that day; that he was pressured to sign a form indicating his job had been completed
when it had not; and that Savoy told him he never would have been working for Timec
had Savoy known of his disability. If Fussell’s version of events is believed, despite
Fussell’s requests, Timec refused to reasonably accommodate his disability (which did
not prevent him from working as a pipefitter/fabricator) and then terminated him for
	
15		   Indeed, the almost immediate succession of events given the proximity of
Fussell’s request for a reasonable accommodation to the injury he suffered and his
termination further bolsters his claim. (See Parki v. Kaiser Permanente Hosp. Inc. (9th
Cir. 2004) 389 F.3d 840, 850; Shellenberger v. Summit Bancorp (3d Cir. 2003) 318 F.3d
183, 189.)	

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requesting reasonable accommodation and/or for becoming so significantly disabled that
he may no longer be qualified to perform the same job duties as before—as a direct
result of Timec’s failure to reasonably accommodate his prior disability.16 It follows
that Timec was not entitled to summary adjudication of this cause of action as a matter of
law.
                                     DISPOSITION


         The judgment and order granting summary judgment are reversed. The matter is
remanded to the trial court with instructions to enter a new order denying the motion for
summary judgment or adjudication. Fussell is to recover his costs on appeal.
	




                                                                     WOODS, J.


We concur:




               PERLUSS, P. J.                                        SEGAL, J.*




	
16		    According to the record, Fussell’s AFO was ready on October 30—the day after
his injury occurred. (See A.M. v. Albertsons LLC (2009) 178 Cal.App.4th 455, 465 [“a
single failure to make reasonable accommodation can have tragic consequences for an
employee who is not accommodated”].)
	
*Judge  of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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