Filed 6/2/16 Moore v. The Regents of the Univ. of Cal. CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



DEBORAH MOORE,                                                      D067120

         Plaintiff and Appellant,

         v.                                                         (Super. Ct. No. 37-2013-00032193-
                                                                    CU-OE-CTL)
THE REGENTS OF THE UNIVERSITY OF
CALIFORNIA,

         Defendant and Respondent.


         APPEAL from a judgment of the Superior Court of San Diego County,

Katherine A. Bacal, Judge. Affirmed in part, reversed in part, remanded for further

proceedings. Request for judicial notice granted.

         Sheik Law and Mani Sheik for Plaintiff and Appellant.

         Andrews · Lagasse · Branch · Bell, Margaret C. Bell and Lisa M. Magorien for

Defendant and Respondent.
                                               I.

                                      INTRODUCTION

          Plaintiff Deborah Moore appeals from a judgment entered in favor of defendant

The Regents of the University of California (Defendant). Moore sued Defendant for

claims under the Fair Employment and Housing Act (FEHA) (Gov. Code,1 §§ 12900-

12966) and the California Family Rights Act (CFRA) (§§ 12945.1, 12945.2).

          The trial court granted summary judgment in favor of Defendant. Our review of

the record demonstrates that summary judgment was improperly granted with respect to

Moore's first, second, third, fifth and sixth causes of action. Summary adjudication in

favor of Defendant was appropriate, however, with respect to Moore's fourth cause of

action.

          We reverse the judgment and remand the matter for further proceedings in the trial

court.

                                              II.

                     FACTUAL AND PROCEDURAL BACKGROUND

A.        Factual background

          Moore began working in UCSD's Marketing and Communications Department

(the Department) in 2008. In February 2010, Moore became the Director of Marketing.

Around that same time, the Executive Director of the Department resigned unexpectedly.




1      Further statutory references are to the Government Code unless otherwise
indicated.
                                               2
       In June 2010, Kimberly Kennedy was hired as the new Executive Director of the

Department. According to a declaration submitted in support of Defendant's motion for

summary judgment, after she was hired, Kennedy sought to restructure the department.

       In early September 2010, Moore was diagnosed with idiopathic cardiomyopathy.

On or around September 10, 2010, Moore was prescribed and began wearing a heart

monitor called a "LifeVest." The "LifeVest" is a monitor and external defibrillator. The

"LifeVest" is worn outside of a person's clothing, like a vest, and the monitor, which is

approximately six or eight inches by four to five inches in size, is attached to the vest by

wires. Moore had to wear the "LifeVest" for two to three weeks.

       On the first day that Moore wore the vest to work, she met with Kennedy. Moore

"told [Kennedy] what [her] condition was," "told her what the heart monitor was for,"

and informed Kennedy "that there was nothing to worry about, that it would take care of

itself." Moore also told Kennedy that she "would be able to do [her] job, no problem, just

continue," that she did not feel any different, and that she would be doing therapy and

taking medication to see whether her heart condition improved. If her condition did not

improve, she would be getting a device similar to a pacemaker. Moore told Kennedy,

"I'm fine, seriously." At that first meeting, in response to Moore informing Kennedy that

she could "do [her] work and [her] job fine," Kennedy responded, " 'The first thing we

need to do is lighten your load to get rid of some of the stress.' "

       After speaking with Moore, Kennedy spoke with someone in the human resources

department and asked, " '[I]f I have an employee who has a medical event, do I call the

hospital or do I call- like, who do I call.' " Kennedy also requested from human resources

                                               3
information on what to do about an employee "with adverse health issues." (Italics

added.)

       When Moore was told that she no longer needed to wear the "LifeVest," and that it

had been "overprescribed" to her, she informed Kennedy about the change. Kennedy told

Moore that she had "been in touch with HR" to ask "how to handle [Moore] as a liability

to the department." (Italics added.)

       Moore testified that her relationship with Kennedy changed after Kennedy became

aware of Moore's heart condition. Based on this perceived change, Moore believed that

Kennedy did not like the fact that Moore had a heart condition. Moore related a few

instances in which she believed that Kennedy had unfairly criticized her work product,

including Kennedy yelling at Moore in January 2011 regarding an advertising project,

Kennedy seeking to change "the branding process to 'be her own,' " and Kennedy being

"hostile and snippy" when informing Moore and advertising agency representatives that

she did not want to use the music that Moore and some coworkers had chosen for a

commercial. Moore also testified that during three different meetings, Kennedy had

"humiliated" Moore in disagreeing with the department's "previous branding look," which

Moore had had a role in creating.

       According to Moore, after Kennedy became aware of Moore's heart condition, she

began eliminating Moore's "main responsibilities," including her work on an "open

enrollment program and advertising." Moore did not know why Kennedy reassigned the

open enrollment program to someone else. In addition, Kennedy began overseeing the

advertising herself rather than allowing Moore to continue doing so. Kennedy had started

                                            4
"sending work to freelancers," including work that had previously been done internally.

While Kennedy initially had Moore "oversee" the work of the freelancers, Kennedy later

"took [Moore] off of overseeing the freelancers."

       In addition, as of November 2010, Kennedy began to meet with two of Moore's

"reports" on issues that Moore believed she should have been overseeing. Kennedy also

began arranging meetings that Moore had previously been in charge of coordinating.

       Moore testified that Kennedy assigned Moore to work on " 'less important' "

projects, such as " secondary things to do that [Kennedy] didn't consider important to the

department but had to be done." According to Moore, Kennedy was "taking away

[Moore's] job responsibilities," and Moore came to believe that Kennedy "was

positioning to get rid of [Moore]."

       In approximately mid-November 2010, Kennedy demoted Moore, through a

Department restructuring, to a new classification. Moore's new title became "Director of

Marketing and Brand Management." Moore's salary did not change, but certain other

benefits were reduced. Also in November 2010, Kennedy implemented reclassifications

of Department positions and laid off two full-time employees.2 At that time, Kennedy

told her staff that this "was the last layoff that was going to happen."

       Moore told Kennedy in December 2010 that she would likely have to have a

pacemaker surgically implanted in early 2011 and would need "only" a "few days off

work." In January 2011, Moore informed Kennedy that she had postponed her surgery


2       Two or three other employees apparently voluntarily left the Department during
this time frame.
                                              5
and "would need 'like two or three' days off in April 2011." Kennedy did not say

anything in response to Moore's statements regarding the need for time off for surgery.

Kennedy has no recollection of discussing Moore's need for surgery or her statements

about having to take time off for such surgery.

       On February 2, 2011, Kennedy sent an e-mail to Courtney Morris, a Director of

Compensation and Benefits in the Human Resources Department, indicating that she

wanted to eliminate Moore's position, effectively terminating Moore's employment, as of

February 15, 2011. According to Kennedy, the job functions that Moore was performing

had decreased to such a point that Kennedy could assume them, and therefore, Kennedy

decided to eliminate Moore's position.

       In response to Kennedy's e-mail regarding the elimination of Moore's position,

Morris asked Kennedy to "please explain why Karen [Shea] should be retained out of

seniority (see policy clause below). I want to make sure that this is reflected in the file."

The policy to which Morris was referring stated:

           "Indefinite layoff and indefinite reduction in time are effected by
           unit, by classification, and by salary grade (in the event of a
           classification assigned to different salary grades) in inverse order of
           seniority, except that an employee may be retained irrespective of
           seniority if that employee possesses special skills, knowledge, or
           abilities that are not possessed by other employees in the same
           classification and same salary grade (in the event of a classification
           assigned to different salary grades), and which are necessary to
           maintain the operations of the department."

       At the time Kennedy requested to eliminate Moore's position and terminate her

employment, Moore and Shea "f[e]ll in the same payroll, title, and the same

classification."

                                              6
       Kennedy's response to Morris's request for an explanation as to why Kennedy was

not adhering to the policy with respect to Moore and Shea was as follows:

          "Elimination of the position [of Marketing Director] is due to the
          focus of the marketing department moving to the service lines and
          away from a central marketing professional servicing a [sic] all
          service lines and department. . . . There is no need for two director
          level positions in the marketing area. [Deb Moore and Karen Shea].
          [¶] In addition, I have taken over management of all brand issues
          and am the main point of contact with our advertising agency and
          advertising buyer. I also make all decisions regarding brand and
          identity as well as appoint all vendors. There is duplication in
          elements of my role with that of the Marketing Manager and again
          indicates that we do not need this resource."

       Thus, in responding to the request from Human Resources for an explanation as to

why the policy was not being followed, Kennedy explained the reasons for the

elimination of Moore's position, but did not provide information regarding her

assessment as to any "special skills, knowledge, or abilities" that Shea possessed and

Moore did not. Kennedy conceded during her deposition that Moore "[p]robably" had

the "skills to fill" the role that Shea fulfilled. Kennedy also acknowledged that Shea had

"only held that role for a few months" at the time Moore was terminated.

       Defendant also has a policy regarding a reduction in force that requires Defendant

to " '[g]ive regular status employees preferential opportunities for reassignment or

transfer prior to indefinite layoff.' " As interpreted by Andrea Balestrieri, Defendant's

identified person most knowledgeable about reduction in force policies in effect at the

time of Moore's termination, the "idea [behind the policy] is to minimize impact to

employees and to minimize the need to lay someone off." Balestrieri also testified

regarding another policy referred to as a "right to recall." Pursuant to this policy, "if a

                                              7
position is opened after an individual is laid off and the position is in the same

classification, the same salary grade, they would have the right to recall"—i.e., be rehired

into that position.

       Defendant eliminated Moore's position on February 15, 2011, and Moore was

terminated. Moore was informed that she was being laid off because her position was

being eliminated due to "lack of work" and "budget reasons."

       Shea testified that after Moore was terminated, Kennedy and Shea discussed

"[Shea] taking over duties that Deb Moore used to have," and that some of Moore's

"direct reports reported in to [Shea] for a short period of time," after which they reported

to "Beth Reagan, who reported directly to Kim Kennedy." Moore understood that her

"position and [her] tasks were given to somebody else on staff there who just had a

slightly different title."

       A year and a half after terminating Moore, Kennedy "made some additional

restructuring redundancies."

       Evidence presented on summary judgment demonstrated that at the time Kennedy

was hired, the Department consisted of 15 full-time employees and approximately 5

temporary employees. However, between November 2010 and May 2011, the

Department increased its headcount by eight employees. The most significant increases

in staff were in the internet marketing and design and production areas. Kennedy was



aware that Moore had a design and production background, and, in fact, that Moore's

career had been devoted to being a graphic designer, production manager, and art

                                              8
director. Kennedy acknowledged that Moore had an "extensive background in design

and production."

       Kennedy did not ask Moore if she would accept a pay reduction, nor did Kennedy

consider Moore for a freelance position. There is no evidence that Kennedy offered

Moore any of the positions that were filled around the time of, or after, her termination.

B.     Procedural background

       Moore filed her complaint on January 28, 2013, alleging causes of action under

FEHA for disability discrimination, failure to accommodate, failure to engage in the

interactive process, and retaliation, as well as causes of action for interference with

CFRA and retaliation in violation of CFRA.

       Defendant moved for summary judgment a little over a year after the case was

filed. The trial court ruled in favor of Defendant on the motion, concluding that Moore

had not demonstrated that there remained triable issues of material fact with respect to

any of her causes of action.

       The trial court subsequently entered judgment in favor of Defendant. Moore filed

a timely notice of appeal from the judgment.

                                             III.

                                       DISCUSSION

A.     Applicable legal standards

       1.     Summary judgment standards

       "Summary judgment is granted when a moving party establishes the right to the

entry of judgment as a matter of law. [Citation.] On appeal, the reviewing court makes

                                              9
' "an independent assessment of the correctness of the trial court's ruling, applying the

same legal standard as the trial court in determining whether there are any genuine issues

of material fact or whether the moving party is entitled to judgment as a matter of

law." ' " (Hesperia Citizens for Responsible Development v. City of Hesperia (2007) 151

Cal.App.4th 653, 658.)

          In independently examining the record on appeal "to determine whether triable

issues of material fact exist," we " 'consider[ ] all the evidence set forth in the moving and

opposition papers except that to which objections were made and sustained.' " (Ambriz v.

Kelegian (2007) 146 Cal.App.4th 1519, 1530 (Ambriz).) Further, " 'we must view the

evidence in a light favorable to plaintiff as the losing party [citation], liberally construing

[the plaintiff's] evidentiary submission while strictly scrutinizing the defendants' own

showing, and resolving any evidentiary doubts or ambiguities in plaintiff's favor.' "

(Ibid.)

          " 'In the summary judgment context, . . . the evidence must be incapable of

supporting a judgment for the losing party in order to validate the summary judgment.' "

(Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 864, 877 (Faust),

italics added.) " 'Thus even though it may appear that a trial court took a "reasonable"

view of the evidence, a summary judgment cannot properly be affirmed unless a contrary

view would be unreasonable as a matter of law in the circumstances presented.' " (Ibid,

italics added.)




                                              10
       2.     Overview of FEHA and CFRA

              a.     Overview of FEHA as relevant to Moore's case

       FEHA makes it an unlawful employment practice to discharge a person from

employment or discriminate against the person in the terms, conditions, or privileges of

employment because of physical or mental disability or medical condition. (§ 12940,

subd. (a).) FEHA, however, "does not prohibit an employer from . . . discharging an

employee with a physical or mental disability, . . . where the employee, because of his or

her physical or mental disability, is unable to perform his or her essential duties even with

reasonable accommodations . . . ." (§ 12940, subd. (a)(1).) FEHA proscribes two types

of disability discrimination: (1) discrimination arising from an employer's intentionally

discriminatory act against an employee because of his or her disability (disparate

treatment discrimination), and (2) discrimination resulting from an employer's facially

neutral practice or policy that has a disproportionate effect on employees suffering from a

disability (disparate impact discrimination). (Knight v. Hayward Unified School Dist.

(2005) 132 Cal.App.4th 121, 128-129, disapproved on other grounds in Williams v.

Chino Valley Independent Fire Dist. (2015) 61 Cal.4th 97, 115.)

       FEHA also imposes on the employer the obligation to make reasonable

accommodation: "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: [¶] . . . [¶] (m) (1) For an

employer or other entity covered by this part to fail to make reasonable accommodation

for the known physical or mental disability of an applicant or employee." (§ 12940,

                                              11
subd. (m).) An employer is not required to make an accommodation "that is

demonstrated by the employer or other covered entity to produce undue hardship . . . to

its operation." (Ibid.)

       Corresponding with the obligation to make reasonable accommodation for a

known physical or mental disability, FEHA makes it unlawful for an employer "to fail to

engage in a timely, good faith, interactive process with the employee or applicant to

determine effective reasonable accommodations, if any, in response to a request for

reasonable accommodation by an employee or applicant with a known physical or mental

disability or known medical condition." (§ 12940, subd. (n).) Section 12940, subdivision

(n) imposes separate, independent duties on an employer to engage in the " 'interactive

process' " and to make " 'reasonable accommodations.' " (Wilson v. County of Orange

(2009) 169 Cal.App.4th 1185, 1193.)

       FEHA also makes it unlawful for an 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).)

              b.      Overview of CFRA as relevant to Moore's case

       CFRA, the California corollary to the federal Family and Medical Leave Act of

1993 (29 U.S.C. §§ 2601-2654 (FMLA)), "is intended to give employees an opportunity

to take leave from work for certain personal or family medical reasons without

jeopardizing job security." (Nelson v. United Technologies (1999) 74 Cal.App.4th 597,

606; Faust, supra, 150 Cal.App.4th at p. 878.) CFRA requires an employer of 50 or

                                             12
more persons to grant a request by a qualified employee to take up to 12 weeks in any 12-

month period for family care or medical leave. (§ 12945.2, subds. (a), (c)(2)(A); see

Faust, supra, at p. 878.) Grounds for leave include family needs such as the birth or

adoption of a child, serious illness of a family member and "an employee's own serious

health condition" when that condition "makes the employee unable to perform the

functions of the position of that employee . . . ." (§ 12945.2, subd. (c)(3)(C).) CFRA

defines a "[s]erious health condition" as "an illness, injury, impairment, or physical or

mental condition that involves either of the following: [¶] (A) Inpatient care in a

hospital, hospice, or residential health care facility. [¶] (B) Continuing treatment or

continuing supervision by a health care provider." (§ 12945.2, subd. (c)(8).) An

employer may require an employee's request for leave be supported by a certification

from the employee's health care provider. (Id., subd. (k)(1).)

       "Violations of . . . CFRA generally fall into two types of claims: (1) 'interference'

claims in which an employee alleges that an employer denied or interfered with her

substantive rights to protected medical leave, and (2) 'retaliation' claims in which an

employee alleges that she suffered an adverse employment action for exercising her right

to CFRA leave." (Rogers v. County of Los Angeles (2011) 198 Cal.App.4th 480, 487-

88.) The statutory authority for an "interference" claim arises from section 12945.2,

subdivision (t), which makes it unlawful for an employer "to interfere with, restrain, or

deny the exercise of, or the attempt to exercise, any right" provided by CFRA. The

statutory authority for a "retaliation" claim arises from section 12945.2, subdivision



                                             13
(l)(1), which makes it unlawful to retaliate against any individual because of his or her

exercise of the right to family care or medical leave as provided by CFRA.

B.     Moore's first cause of action for disability discrimination under FEHA

       1.     Standards applicable to discrimination claims

       "Because of the similarity between state and federal employment discrimination

laws, California courts look to pertinent federal precedent when applying our own

statutes." (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354 (Guz).)

       In order to prevail on a FEHA discrimination claim, a " 'plaintiff must produce

evidence sufficient to show that an illegitimate criterion was a substantial factor in the

particular employment decision.' " (Harris v. City of Santa Monica (2013) 56 Cal.4th

203, 232.)

       Because a plaintiff does not often possess or obtain direct evidence that an

illegitimate criterion was a substantial factor in a particular employment decision,

California has adopted the three-stage burden-shifting test for discrimination claims set

forth in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792. (Guz, supra, 24

Cal.4th at pp. 354-356.)3 "This so-called McDonnell Douglas test reflects the principle



3       Recently, another appellate court has explained that disability discrimination cases
often may be an exception to the general rule that plaintiffs alleging discrimination are
unable to present direct evidence of the discrimination. "[D]isability discrimination cases
often involve direct evidence of the role of the employee's actual or perceived disability
in the employer's decision to implement an adverse employment action," and "[i]nstead
of litigating the employer's reasons for the action, the parties' disputes in disability cases
[often] focus on whether the employee was able to perform essential job functions,
whether there were reasonable accommodations that would have allowed the employee to
perform those functions, and whether a reasonable accommodation would have imposed
                                             14
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;

see also Mixon v. Fair Employment & Housing Com. (1987) 192 Cal.App.3d 1306, 1317

["In most cases, the complainant will be unable to produce direct evidence of the

employer's intent. Consequently certain rules regarding the allocation of burdens and

order of presentation of proof have developed in order to achieve a fair determination of

'the elusive factual question of intentional discrimination' "].)

       "At trial, the McDonnell Douglas test places on the plaintiff the initial burden to

establish a prima facie case of discrimination. This step is designed to eliminate at the

outset the most patently meritless claims, as where the plaintiff is not a member of the

protected class or was clearly unqualified, or where the job he sought was withdrawn and

never filled." (Guz, supra, 24 Cal.4th at pp. 354-355.) The plaintiff can meet his or her

burden of establishing a prima facie case of discrimination by presenting evidence that

demonstrates, even circumstantially or by inference, that 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

an undue hardship on the employer." (Wallace v. County of Stanislaus (2016) 245
Cal.App.4th 109, 123 (Wallace).) In cases where a "plaintiff presents direct evidence of
the employer's motivation for the adverse employment action," the McDonnell Douglas
"three-stage framework and the many principles adopted to guide its application do not
apply." (Ibid.) This case does not present a so-called "typical" disability discrimination
case, as described in Wallace, in that the parties dispute the employer's reasons for
terminating Moore's employment.
                                              15
adverse employment action because of the disability or perceived disability. (Jensen v.

Wells Fargo Bank (2000) 85 Cal.App.4th 245, 254 (Jensen).) To establish a prima facie

case, a plaintiff must show " ' " 'actions taken by the employer from which one can infer,

if such actions remain unexplained, that it is more likely than not that such actions were

"based on a [prohibited] discriminatory criterion . . . ." ' " ' " (Reid v. Google, Inc. (2010)

50 Cal.4th 512, 520, fn. 2.) The prima facie burden is light; the evidence necessary to

sustain the burden is minimal. (Heard v. Lockheed Missiles & Space Co. (1996) 44

Cal.App.4th 1735, 1751.) Generally, an employee need offer only sufficient

circumstantial evidence to give rise to a reasonable inference of discrimination. (Hersant

v. Department of Social Services (1997) 57 Cal.App.4th 997, 1002 (Hersant) [explaining

nature of prima facie case in context of age discrimination].)

       "If, at trial, the plaintiff establishes a prima facie case, a presumption of

discrimination arises." (Guz, supra, 24 Cal.4th at p. 355.) "Accordingly, at this trial

stage, the burden shifts to the employer to rebut the presumption by producing admissible

evidence, sufficient to 'raise[ ] a genuine issue of fact' and to 'justify a judgment for the

[employer],' that its action was taken for a legitimate, nondiscriminatory reason." (Id. at

pp. 355-356.)

       "If the employer sustains this burden [to demonstrate a genuine issue of fact that

the action was for a legitimate, nondiscriminatory reason], the presumption of

discrimination disappears. [Citations.] The plaintiff must then have the opportunity to

attack the employer's proffered reasons as pretexts for discrimination, or to offer any

other evidence of discriminatory motive. [Citations.] In an appropriate case, evidence of

                                              16
dishonest reasons, considered together with the elements of the prima facie case, may

permit a finding of prohibited bias." (Guz, supra, 24 Cal.4th at p. 356.)

       In demonstrating that an employer's proffered nondiscriminatory reason is false or

pretextual, " '[an employee] cannot simply show that the employer's decision was wrong

or mistaken, since the factual dispute at issue is whether discriminatory animus motivated

the employer, not whether the employer is wise, shrewd, prudent, or competent. . . .

Rather, the [employee] must demonstrate such weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate

reasons for its action that a reasonable factfinder could rationally find them "unworthy of

credence," . . . and hence infer "that the employer did not act for the [asserted] non-

discriminatory reasons." ' " (Hersant, supra, 57 Cal.App.4th at p. 1005.)

       2.      Summary judgment in the context of a discrimination claim

       " '[W]e must keep in mind that the McDonnell Douglas test was originally

developed for use at trial [citation], not in summary judgment proceedings.' " (Arteaga v.

Brink's, Inc. (2008) 163 Cal.App.4th 327, 343-344.)

            " ' "In such pretrial [motion] proceedings, the trial court will be
            called upon to decide if the plaintiff has met his or her burden of
            establishing a prima facie case of unlawful discrimination. If the
            employer presents admissible evidence either that one or more of
            plaintiff's prima facie elements is lacking, or that the adverse
            employment action was based on legitimate, nondiscriminatory
            factors, the employer will be entitled to summary judgment unless
            the plaintiff produces admissible evidence which raises a triable
            issue of fact material to the defendant's showing. In short, by
            applying McDonnell Douglas's shifting burdens of production in the
            context of a motion for summary judgment, 'the judge [will]
            determine whether the litigants have created an issue of fact to be
            decided by the jury.' " . . . Thus, " '[a]lthough the burden of proof in

                                               17
            a [discrimination] action claiming an unjustifiable [termination]
            ultimately rests with the plaintiff . . . , in the case of a motion for
            summary judgment or summary issue adjudication, the burden rests
            with the moving party to negate the plaintiff's right to prevail on a
            particular issue. . . . In other words, the burden is reversed in the
            case of a summary issue adjudication or summary judgment
            motion. . . .' " ' " (Id. at p. 344, first & second italics in original,
            third italics added.)

       " 'Whether judgment as a matter of law is appropriate in any particular case will

depend on a number of factors. These include the strength of the plaintiff's prima facie

case, the probative value of the proof that the employer's explanation is false, and any

other evidence that supports the employer's case . . . .' " (Guz, supra, 24 Cal.4th at p.

362.) However, "many employment cases present issues of intent, . . . motive, and

hostile working environment, issues not determinable on paper. Such cases . . . are

rarely appropriate for disposition on summary judgment, however liberalized [summary

judgment standards may] be." (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th

243, 286 (Nazir), italics added.)

       3.      Analysis

       The trial court determined that Moore satisfactorily demonstrated a prima facie

case of discrimination under FEHA. Although the court concluded that the undisputed

evidence established that Moore was not, in fact, physically disabled, the court

determined that there nevertheless remained a question of fact as to whether Defendant

perceived Moore as having a disability. The court concluded that the undisputed

evidence demonstrated that Moore was qualified to perform the duties of her position,

stating that "[b]ecause plaintiff was not terminated for cause, there is no issue regarding


                                               18
plaintiff's ability to perform the work." Finally, the court concluded that the temporal

connection between the time Kennedy became aware of Moore's heart condition and

Moore's termination was sufficient to satisfy the final element of a prima facie case of

discrimination.

       The court then considered the evidence presented by Defendant with respect to

offering a legitimate, nondiscriminatory basis for Moore's termination. The court

concluded that Defendant's evidence was sufficient to meet this standard.

       However, with respect to the third stage of the McDonnell Douglas burden

shifting test—i.e., Moore's proffer regarding pretext and/or discriminatory motive to

overcome Defendant's offer of a nondiscriminatory reason for her termination—the trial

court concluded that "[b]ased on all the evidence presented, plaintiff has not raised a

triable issue of fact with respect to her claim of disability discrimination."

       We agree with the trial court's analysis with respect to the first two prongs of the

McDonnell Douglas test—i.e., that Moore sufficiently demonstrated a prima facie case of

discrimination, and that Defendant offered evidence of a legitimate, nondiscriminatory

basis for Moore's termination.4 However, we conclude that there remain triable issues of




4      We agree with the trial court that the evidence presented on summary judgment is
sufficient to demonstrate that Moore can meet her burden to present a prima facie case of
discrimination based on a perceived disability. Under FEHA, a person is considered
"physically disabled" not only if he or she has a physiological condition that "[l]imits a
major life activity" (§ 12926, subd. (m)(1)(B)), but also if he or she is "regarded or
treated by the employer . . . as having, or having had, any physical condition that
[currently] makes [or, in the future may make] achievement of a major life activity
difficult." (Id., subd. (m)(4), (5), italics added.)
                                              19
fact regarding pretext in the face of Defendant's proffer of a nondiscriminatory reason for

Moore's termination.5

       Once an employer has offered a legitimate, nondiscriminatory reason for the

adverse employment action, a " 'plaintiff must offer evidence that the employer's stated

reason is either false or pretextual, or evidence that the employer acted with

discriminatory animus, or evidence of each which would permit a reasonable trier of fact

to conclude the employer intentionally discriminated.' " (Faust, supra, 150 Cal.App.4th

at p. 886.)


        Subdivisions (m)(4) and (5) implement the Legislature's intent to protect
individuals who are "erroneously or mistakenly believed to have any physical or mental
condition that limits a major life activity." (§ 12926.1, subd. (d).) "Both the policy and
language of the statute offer protection to a person who is not actually disabled, but is
wrongly perceived to be." (Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34,
53.)
        On appeal, Moore focuses her briefing on her claim for discrimination based on
what she alleges was her perceived disability, asserting that this "is a classic perceived
disability case." However, Moore also suggests in a footnote that she suffers from an
actual disability, as well—i.e., heart disease. Moore makes only a brief assertion in this
footnote that she "had an actual disability" because " 'physical disabilities' " includes
" 'heart disease.' " We do not address this contention on appeal because Moore's
reference to her having an actual disability in a footnote is insufficient to raise a
challenge to the trial court's determination, on summary judgment, that the undisputed
facts demonstrate that Moore did not have an actual disability at the relevant time. (See
Niko v. Foreman (2006) 144 Cal.App.4th 344, 368 ["One cannot simply say the court
erred, and leave it up to the appellate court to figure out why"]; see also Strutt v. Ontario
Sav. & Loan Assn. (1972) 28 Cal.App.3d 866, 873 ["An appellate court is not required to
consider alleged errors where the appellant merely complains of them without pertinent
argument"].)
5       Because this is an appeal from a grant of a motion for summary judgment, we
must view the evidence in the light most favorable to Moore, the nonmoving party. We
do not intend to suggest that, at trial, a fact finder should or will weigh this evidence and
draw the same inferences that we raise in this opinion. Rather, we simply conclude that a
fact finder could reasonably draw such inferences. The same is true with respect to our
conclusions as to Moore's other FEHA and CFRA claims.
                                             20
       Moore offered evidence that Defendant's proffered reasons for terminating her

employment may have been untrue, as well as evidence that suggested that Kennedy may

not have believed that Moore was healthy enough to continue in her position with the

typical stressors of her job—evidence from which a fact finder could infer that

Defendant's proffered reason was a pretext for disability discrimination.

       Defendant maintains that Moore was laid off due to a restructuring or

reorganization of the Department. According to Kennedy, the duties that Moore had in

her position were duplicative of duties that Kennedy either was handling or planned to

handle herself. However, the timing of events leading up to Moore's termination could

suggest that something other than simple restructuring was at play.

       Moore was originally hired into the Department as a temporary worker in October

2008, and within a year she was promoted to the position of Creative Director, a

permanent position. By February 2010, just over a year after she had been hired as a

temporary worker, Moore was promoted to the position of Director of Marketing, a

position in which she oversaw half of the Department. After the Executive Director

resigned unexpectedly around that same time, Moore and another Director shared interim

Executive Director duties. Despite Moore's otherwise rapid ascension in the Department,

later that year, specifically, after September 10, 2010, when Moore began wearing the

"LifeVest" at work, Kennedy began eliminating Moore's "main responsibilities,"

including her work on an "open enrollment program and advertising." Kennedy also

began overseeing the advertising herself. Kennedy had started "sending work to

freelancers," including work that had previously been done internally, and then "took

                                            21
[Moore] off of overseeing the freelancers." This all occurred after Moore informed

Kennedy of her heart condition but expressly declined to request any differential

treatment or accommodation, and after Kennedy replied, " 'The first thing we need to do

is lighten your load to get rid of some of the stress.' "

       Then, approximately a year after Moore had been promoted to a Director position,

but only two months after Moore informed Kennedy that she would need some time off

for a surgery related to her heart condition, Kennedy decided to eliminate Moore's

position. Rather than move Moore to a different Director position or even demote her but

keep her employed in the Department, Kennedy terminated Moore's employment

altogether. "Pretext may . . . be inferred from the timing of the company's termination

decision, by the identity of the person making the decision, and by the terminated

employee's job performance before termination." (Flait v. North American Watch Corp.

(1992) 3 Cal.App.4th 467, 479.)

       A defendant's failure to follow its own policies or procedures may also provide

evidence of pretext. (See Village of Arlington Heights v. Metropolitan Housing

Development Corp. (1977) 429 U.S. 252, 267 [a departure from normal procedures

"might afford evidence that improper purposes [played] a role" in an employee's

termination].) The record discloses evidence from which a reasonable fact finder could

conclude that Kennedy failed to follow Defendant's stated procedures with respect to

layoffs occurring during a restructuring when she not only eliminated Moore's position,

but terminated Moore's employment.



                                               22
       Specifically, Defendant had a policy to retain employees in the same unit,

classification and salary grade based on seniority, unless a particular employee who was

less senior possessed "special skills, knowledge, or abilities" that a more senior employee

did not. At the time Kennedy decided to terminate Moore, Moore was senior to Shea,

and they both "f[e]ll in the same payroll, title, and the same classification." When asked

by a representative of the Human Resources Department why Kennedy was not adhering

to the stated seniority policy with respect to Moore, Kennedy explained the reasons for

the elimination of Moore's position, but provided no information regarding her

assessment with respect to any "special skills, knowledge, or abilities" that Shea

possessed and Moore did not. In other words, Kennedy did not provide any reason why

Shea, in particular, was being retained over Moore, who had more seniority; instead,

Kennedy explained the reason for the elimination of Moore's "Director" position—i.e.,

that "[t]here is no need for two director level positions in the marketing area. [Deb

Moore and Karen Shea]" and that there was a duplication of duties with Kennedy's

position and Moore's position.

       Further, in her declaration submitted in support of Defendant's motion for

summary judgment, Kennedy's explanation for the decision to retain Shea rather than

Moore was that "the two directors oversaw different functions and the roles were not

interchangeable." Kennedy still provides no explanation, however, as to whether Shea

possessed "special skills, knowledge, or abilities" that Moore did not, that would merit

Shea's retention in lieu of Moore's, which is what Defendant's stated policy requires.

Indeed, Kennedy acknowledged during her deposition that Moore "probably" had the

                                            23
ability to fill the role that Shea had been in for only a few months when Moore was

terminated.

       Further, there is evidence demonstrating that Kennedy also did not adhere to

Defendant's policy to " '[g]ive regular status employees preferential opportunities for

reassignment or transfer prior to indefinite layoff,' " or Defendant's policy regarding the

"right to recall." Kennedy admitted that she did not ask Moore if she would accept a pay

reduction, did not offer Moore any of the positions that were filled around or after her

termination, and did not consider Moore for a freelance position. This was in spite of the

fact that between November 2010 and May 2011, the Department increased its headcount

by eight employees, that the most significant increases in staff were in the internet

marketing and design and production areas, and that Kennedy was aware that Moore had

a background in design and production.

       Thus, there remain significant questions as to whether Defendant followed its own

stated policies with respect to Moore's termination.

       In addition to the evidence that raises questions about Defendant's proffered

reasons for terminating Moore's employment, Moore provided evidence of other

statements made by Kennedy from which a fact finder could infer that Kennedy was

concerned that Moore's health was going to be a problem at work and that she may have

had discriminatory reason for terminating Moore's employment. After observing Moore

wearing the "LifeVest" and learning from Moore about Moore's heart condition, Kennedy

contacted the Human Resources Department and inquired as to what she should do about

employees " 'with adverse health issues' " (italics added), in the context of inquiring with

                                             24
respect to Moore's "adverse health condition" (italics added). Even more troubling is

evidence that when Moore informed Kennedy that she no longer needed to wear the

"LifeVest," Kennedy's response was that she had "been in touch with HR" to ask "how to

handle [Moore] as a liability to the department." (Italics added.) The reference to Moore

being a "liability to the department" with respect to her heart condition could reasonably

be viewed by a fact finder as evidence of a discriminatory animus toward Moore's

perceived disability.6

       The fact that the parties dispute a number of factual issues, including whether

Moore was equipped to perform the functions of Shea's position, whether Kennedy did or

did not follow Defendant's own policies for laying off employees, and whether Kennedy

perceived Moore as having a disability, demonstrates why this case is not an appropriate

one for summary judgment and instead, should be heard by a jury. There is evidence

supporting both parties' positions, and it is not up to the court to weigh conflicting

evidence or to assess the credibility of witnesses. Rather, the court's duty is to determine

only whether the evidence could support a judgment in favor of the nonmoving party.

Here, the evidence is such that a reasonable fact finder could conclude that Defendant's

proffered reasons for terminating Moore's employment were unworthy of credence and

that Kennedy believed that Moore was a "liability" to the Department as a result of her



6       Again, we reassert that we do not intend to suggest that Kennedy did, in fact,
harbor a discriminatory animus toward Moore based on her perceived disability, or that a
fact finder would necessarily agree that Kennedy harbored such animus. Rather, we are
simply saying that based on this evidence one could reasonably conclude that such
animus existed.
                                             25
heart condition, and, based on that conclusion, could infer that the proffered reasons for

Moore's termination were not the real reasons for the termination. In other words, a

reasonable juror could find that Defendant's stated reason for terminating Moore was

pretextual, and that Defendant was instead motivated by a discriminatory purpose.

Again, issues of intent and motive are typically not appropriate for disposition on

summary judgment. (Nazir, supra, 178 Cal.App.4th at p. 286.) We therefore conclude

that summary judgment with respect to Moore's first cause of action for disability

discrimination in violation of FEHA must be reversed.

C.     Moore's second and third causes of action for failure to accommodate and failure
       to engage in the interactive process in violation of FEHA

       In addition to setting forth a general prohibition against unlawful employment

discrimination based on disability, FEHA provides an independent cause of action for an

employer's failure to provide a reasonable accommodation for an applicant's or

employee's known disability. (§ 12940, subds. (a), (m).) "Under the express provisions

of the FEHA, the employer's failure to reasonably accommodate a disabled individual is a

violation of the statute in and of itself." (Jensen, supra, 85 Cal.App.4th at p. 256; Bagatti

v. Department of Rehabilitation (2002) 97 Cal.App.4th 344, 357.) Similar reasoning

applies to violations of section 12940, subdivision (n), for an employer's failure to engage

in a good faith interactive process to determine an effective accommodation, once one is

requested. (Ibid.; Claudio v. Regents of University of California (2005) 134 Cal.App.4th

224, 243.)




                                             26
       Two principles underlie a cause of action for failure to provide a reasonable

accommodation. First, the employee must request an accommodation. (Prilliman v.

United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 954.) Second, the parties must engage

in an interactive process regarding the requested accommodation and, if the process fails,

responsibility for the failure rests with the party who failed to participate in good faith.

(See Jensen, supra, 85 Cal.App.4th at p. 266.) While a claim of failure to accommodate

is independent of a cause of action for failure to engage in an interactive dialogue, each

necessarily implicates the other. (Gelfo v. Lockheed Martin Corp. (2006) 140

Cal.App.4th 34, 54 (Gelfo).)

       The trial court concluded that Moore cannot prevail on her accommodation claim

or her claim for failure to engage in the interactive process because "she did not have a

disability that required accommodation." This, however, is not a basis for rejecting a

plaintiff's failure to accommodate and/or failure to engage in the interactive process

claim(s): "[E]mployers must reasonably accommodate individuals falling within any of

FEHA's statutorily defined 'disabilities,' including those 'regarded as' disabled, and must

engage in an informal, interactive process to determine any effective accommodations."

(Gelfo, supra, 140 Cal.App.4th at p. 55, italics added.)

       In discussing its conclusion that an employer may be held liable for failing to

accommodate an individual whom the employer perceives as disabled, even if he or she

is not actually disabled under FEHA, the Gelfo court adopted similar reasoning employed

by a federal court in considering this issue with respect to the ADA:



                                              27
          " 'The ADA is concerned with safeguarding the employees'
          livelihood from adverse actions taken on the basis of "stereotypic
          assumptions not truly indicative of individual ability" of the
          employee. . . . [T]he real danger is not that the employee will fail to
          educate an employer concerning her abilities, but that "[t]he
          employee whose limitations are perceived accurately gets to work,
          while [the employee perceived as disabled] is sent home unpaid." '
          [Citations.] Stated differently, the ADA's educational function is
          actually advanced by providing accommodations to 'regarded as'
          disabled employees because 'an employer who is unable or unwilling
          to shed his or her stereotypic assumptions based on a faulty or
          prejudiced perception of an employee's abilities must be prepared to
          accommodate the artificial limitations created by his or her own
          faulty perceptions. In this sense, the ADA encourages employers to
          become more enlightened about their employees' capabilities, while
          protecting employees from employers whose attitudes remain mired
          in prejudice.' [Citation.] Finally, Kelly noted that, by failing to
          make any definitional distinction between an employee who was
          actually disabled and one who was merely regarded as disabled,
          Congress did not consider it inherently unreasonable to provide an
          accommodation for an employee whom an employer only regarded
          as disabled." (Gelfo, supra, 140 Cal.App.4th at p. 59, first italics
          added, second italics in original, quoting Kelly v. Metallics West,
          Inc. (10th Cir. 2005) 410 F.3d 670, 675-676.)

      Consequently, the trial court erroneously relied on its conclusion that Moore did

not have a disability in granting summary adjudication of Moore's claims for failure to

accommodate and failure to engage in the interactive process, since a plaintiff need not

have an actual disability, but need only be regarded by the employer as having one, to be

able to make out claims under section 12940, subdivisions (m) and (n).

      The trial court also concluded, in the alternative, that Moore was "not denied an

accommodation" because she was terminated prior to any denial of her request for time

off for her surgery. However, as the trial court concluded, Moore made out a prima facie

case that Defendant regarded her as disabled with respect to her heart condition. Moore


                                            28
informed Kennedy that she would have to take some time off in order to have surgery

related to the condition for which there is evidence that she was regarded as disabled. A

term of leave from work can be a reasonable accommodation under FEHA (Hanson v.

Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 226), and, therefore, a request for leave

can be considered to be a request for accommodation under FEHA. There was no

evidence presented with respect to Defendant's motion for summary judgment that

Kennedy or anyone else engaged in an interactive process with Moore to discuss her

request for leave. The evidence establishes, however, that Moore was terminated before

she was granted leave for her surgery.

       As we have already concluded, there is sufficient evidence of pretext in Moore's

termination to make summary adjudication of Moore's discrimination claim

inappropriate, and, thus, the termination cannot support the conclusion that Defendant did

not have to address Moore's request for accommodation or engage in an interactive

process with Moore. " 'In a practical sense,' as another court observed in the ADA

context, 'the interactive process is more of a labor tool than a legal tool, and is a

prophylactic means to guard against capable employees losing their jobs even if they are

not actually disabled.' " (Gelfo, supra, 140 Cal.App.4th at pp. 61-62, italics added.) The

point of the interactive process is to find reasonable accommodation for a disabled

employee, or an employee regarded as disabled by the employer, in order to avoid the

employee's termination. Therefore, a pretextual termination of a perceived-as-disabled

employee's employment in lieu of providing reasonable accommodation or engaging in



                                              29
the interactive process does not provide an employer a reprieve from claims for failure to

accommodate and failure to engage in the interactive process.

       A reasonable fact finder could conclude, based on the evidence presented on

summary judgment, (1) that Defendant regarded Moore as disabled, (2) that Moore

requested an accommodation of leave to have surgery related to her perceived disability,

(3) that Defendant terminated Moore before either providing her with the requested

accommodation or engaging with her further to determine whether such accommodation

would sufficiently address her perceived disability or whether other or different

accommodations might reasonably be provided, and (4) that the termination was

pretextual. The granting of summary adjudication of Moore's second and third causes of

action in favor of Defendant was therefore erroneous.

D.     Moore's fourth cause of action for retaliation in violation of FEHA

       Moore's fourth cause of action alleges a violation of section 12940, subdivision

(h), which prohibits employer retaliation against an employee as a result of the employee

engaging in certain protected conduct. Specifically, section 12940, subdivision (h) makes

it unlawful for an 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." (Italics added.) In order to establish a prima facie case of retaliation under

this section, "a plaintiff must show (1) he or she engaged in a 'protected activity,' (2) the

employer subjected the employee to an adverse employment action, and (3) a causal link

existed between the protected activity and the employer's action." (Yanowitz v. L'Oreal

                                              30
USA, Inc. (2005) 36 Cal.4th 1028, 1042.) If any employee presents a prima facie case of

retaliation, the court then employs the three-stage McDonnell Douglas burden shifting

analysis to the employee's claim. (Ibid.)

       In the operative complaint, Moore alleges that Defendant unlawfully retaliated

against her as a result of her "notifying" Defendant "of her disability(ies) and need for

accommodations, including, but not limited to, a finite leave of absence." In other words,

Moore contends that the "protected activity" in which she engaged was notifying

Defendant of her heart condition and requesting a leave of absence for her surgery.

       The trial court concluded that Defendant was entitled to summary adjudication of

Moore's cause of action for retaliation under subdivision (h) of section 12940 on the

ground that "[m]erely requesting an accommodation is not a protected activity" under

subdivision (h). The trial court relied, in part, on Rope v. Auto-Chlor System of

Washington, Inc. (2013) 220 Cal.App.4th 635, 652 (Rope) in reaching this conclusion. In

Rope, the court determined that there was "no support in the regulations or case law for

the proposition that a mere request—or even repeated requests—for an accommodation,

without more, constitutes a protected activity sufficient to support a claim for retaliation

in violation of FEHA." (Id. at p. 652.) Rather, "case law and FEHA's implementing

regulations are uniformly premised on the principle that the nature of activities protected

by section 12940, subdivision (h) demonstrate some degree of opposition to or protest of

the employer's conduct or practices based on the employee's reasonable belief that the

employer's action or practice is unlawful. (See Cal. Code. Regs., tit. 2, former § 7287.8;

Gardner v. City of Berkeley (N.D.Cal. 2012) 838 F.Supp.2d 910, 925 [mere 'act of

                                             31
receiving a medical retirement is not a "protected activity . . ." ' under FEHA].)" (Id. at

pp. 652-653.)

       On appeal, however, Moore contends that Defendant does not "raise any

arguments against the first two elements [of her prima facie case of retaliation], nor does

[Defendant] discuss the fact that the Legislature amended FEHA to supersede Rope[,

supra,] 220 Cal.App.4th 365 and make clear that a request for an accommodation

constitutes protected activity."7

       In 2015, the Legislature amended section 12940 by adding two provisions; A.B.

987 "enact[s] paragraph (2) of subdivision (m) and paragraph (4) of subdivision (l) of

Section 12940, to provide protection against retaliation when an individual makes a

request for reasonable accommodation under these sections, regardless of whether the

request was granted." (A.B. 987, § 1, subd. (d).) Relevant to Moore's claims for

disability discrimination is the amendment to subdivision (m) of section 12940.8 As

newly amended, effective January 1, 2016, the provision currently makes it unlawful:

          "(m)(1) For an employer or other entity covered by this part to fail to
          make reasonable accommodation for the known physical or mental
          disability of an applicant or employee. Nothing in this subdivision
          or in paragraph (1) or (2) of subdivision (a) shall be construed to
          require an accommodation that is demonstrated by the employer or



7      Moore filed a request for judicial notice in this court, seeking notice of Assembly
Bill No. 987, Stats. 2015, chapter 122, section 2, effective January 1, 2016 (A.B. 987).
Defendant has not filed any opposition to Moore's request for judicial notice. Given that
the subject of the request meets the requirements for judicial notice under Evidence Code
section 452, we grant Moore's request for judicial notice of this statutory amendment.
8      Subdivision (m) of section 12940 refers to accommodation for physical or mental
disabilities, while subdivision (l) refers to accommodation for religion.
                                             32
           other covered entity to produce undue hardship, as defined in
           subdivision (u) of Section 12926, to its operation.

           "(2) For an employer or other entity covered by this part to, in
           addition to the employee protections provided pursuant to
           subdivision (h), retaliate or otherwise discriminate against a person
           for requesting accommodation under this subdivision, regardless of
           whether the request was granted." (§ 12940, italics added to
           demonstrate newly added language.)

       A question arises as a result of the Legislature's act in amending section 12940:

Does the recent amendment have an effect on Moore's claim for retaliation under FEHA,

in which she alleges a violation of law that occurred in early 2011?

       "Generally, statutes operate prospectively only." (Myers v. Philip Morris

Companies, Inc. (2002) 28 Cal.4th 828, 840.) Statutes operate prospectively unless they

contain an express retroactivity provision, or it is " 'very clear' " that the Legislature

intended the statute to operate retroactively. (Id. at p. 841.) In this case, A.B. 987 does

not contain an express retroactivity provision, and there is nothing else that we have

found that would make it very clear that the Legislature intended for the change it

evidences to apply retroactively.

       However, " '[a] statute that merely clarifies, rather than changes, existing law does

not operate retrospectively even if applied to transactions predating its enactment'

'because the true meaning of the statute remains the same.' " (McClung v. Employment

Development Dept. (2004) 34 Cal.4th 467, 471-472.) Courts, not the legislature,

determine whether a statue is "merely" clarifying, rather than changing existing law. (See

id. at p. 472.) Thus, when the Supreme Court has "finally and definitively" interpreted a

statute, the Legislature is without power to state that a later amendment is simply

                                              33
declarative of existing law if the declaration of that existing law is contrary to the

Supreme Court's interpretation. (Carter v. California Dept. of Veterans Affairs (2006) 38

Cal.4th 914, 922.) However, if the Supreme Court has not provided a final and definitive

interpretation of the relevant statute at the time the Legislature states that a later

amendment is declarative of existing law, then courts interpreting the statute must give

the Legislature's views consideration. (Ibid.)

       "A court engaged in statutory construction looks to 'all pertinent circumstances

and considerations in deciding whether an amendment is a modification or clarification of

a statute.' [Citation.] And particularly when there is no definitive 'clarifying' expression

by the Legislature in the amendments themselves, we will presume that a substantial or

material statutory change . . . bespeaks legislative intention to change, and not just

clarify, the law." (Fonseca v. City of Gilroy (2007) 148 Cal.App.4th 1174, 1197.) By

this standard, the preamble to the amendments contained in A.B. 987, as well as the

amendments themselves, are insufficient to show a legislative intent to clarify, as

opposed to change, the law. There is no statement in the legislation that the Legislature

was simply "clarifying" what conduct constitutes "protected activity" for purposes of the

retaliation provision in subdivision (h) of section 12940. In addition, the Legislature's

preamble to the amendment suggests that the change is intended to apply prospectively,

by stating that despite the opinion in Rope, the Legislature "intends . . . to provide

protection against retaliation when an individual makes a request for reasonable

accommodation under [subdivisions (l) and (m)], regardless of whether the request was

granted" by its enactment of the two new paragraphs. (A.B. 987, § 1, subd. (d).) There

                                               34
would be no need to provide protection against retaliation by enacting additional

provisions if the Legislature believed that such protection had always been provided

under the law as it stood prior to the amendment. Further, the Legislature made no

change to subdivision (h), the retaliation provision, itself. Rather, the Legislature chose

to add new language to the subdivisions addressing accommodations for disabilities and

religion. (See § 12940, subds. (l) & (m).) We therefore presume that in passing A.B.

987, the Legislature intended to change the law, not clarify it. Thus, the amendment to

section 12940 enacted through A.B. 987 operates prospectively.

       Because the recent amendment is prospective in application, in 2011, at the time

Moore alleges Defendant engaged in the asserted retaliation, the law was consistent with

the holding of Rope, supra, 220 Cal.App.4th 635. In other words, at the time of the

relevant events, a request for an accommodation, without more, was insufficient to

constitute "protected activity" under section 12940, subdivision (h), and such activity

thus could not support a claim for retaliation under subdivision (h). (Rope, supra, at p.

652.) As a result, Moore cannot base her claim for retaliation under FEHA on her alleged

request for an accommodation—i.e., her request for time off for surgery.

       In addition, there is no legal support for Moore's contention that her FEHA

retaliation claim can be based on her "notifying the University of her heart condition." In

essence, Moore asserts that she engaged in "protected activity" by simply notifying

Kennedy that she had a heart condition. Notifying one's employer of one's medical

status, even if such medical status constitutes a "disability" under FEHA, does not fall

within the protected activity identified in subdivision (h) of section 12940—i.e., it does

                                             35
not constitute engaging in opposition to any practices forbidden under FEHA or the filing

of a complaint, testifying, or assisting in any proceeding under FEHA. Moore has

offered no authority to support her contention that an employee's notifying his or her

employer of a medical issue that may be a disability under the statute constitutes

"protected activity" on which a FEHA retaliation claim may rest.

       We therefore conclude that no issues of material fact remain in dispute with

respect to Moore's FEHA retaliation claim, and that summary adjudication of this claim

in favor of Defendant was appropriate.

E.     Moore's sixth cause of action for retaliation in violation of CFRA

       The elements of a cause of action for retaliation in violation of CFRA are:

" '(1) the defendant was an employer covered by CFRA; (2) the plaintiff was an employee

eligible to take CFRA [leave]; (3) the plaintiff exercised her right to take [leave] for a

qualifying CFRA purpose; and (4) the plaintiff suffered an adverse employment action,

such as termination, fine, or suspension, because of her exercise of her right to CFRA

[leave].' " (Faust, supra,150 Cal.App.4th at p. 885.) Similar to causes of action under

FEHA, the McDonnell Douglas burden shifting analysis applies to retaliation claims

under CFRA. (Faust, supra, at p. 885.)

       Defendant asserts that the trial court correctly concluded that it was entitled to

judgment on Moore's CFRA retaliation cause of action because "[Moore] did not exercise




                                             36
her right to take CFRA leave and she cannot establish a causal connection [between the

exercise of such right and an adverse employment action]."9

       Defendant is incorrect with respect to the state of the evidence regarding the

element that the plaintiff " 'exercised her right to take [leave] for a qualifying CFRA

purpose.' " (Faust, supra,150 Cal.App.4th at p. 885.) Defendant asserts that Moore

"testified she never used, or intended to use, a protected leave during her employment."

This, however, is insufficient to demonstrate that Moore did not "exercise[ ] her right to

take [leave] for a qualifying CFRA purpose." (Ibid.) The relevant question with respect

to this element is not whether a plaintiff expressly requested CFRA leave, but, rather,

whether a plaintiff "exercised her right to take [leave]" and whether the purpose for the

leave sought was a "qualifying CFRA purpose." (Faust, supra, at p. 885, italics added.)

A review of the implementing regulations for CFRA demonstrates Defendant's error with

respect to this element of a CFRA retaliation claim.

       Section 12945.2, subdivision (a), provides that the Fair Employment and Housing

Commission "shall adopt a regulation specifying the elements of a reasonable request"

for leave under the CFRA. California Code of Regulations, title 2, section 11088,




9      Defendant also contends that Moore "abandoned this cause of action at the trial
court level" because, Defendant asserts, she "failed to address this claim entirely in her
opposition brief." We disagree. Although Moore did not specify that she was addressing
her CFRA retaliation claim in her opposition to Defendant's motion for summary
judgment, Moore discussed the relevant authority and supporting evidence in the record
in a manner that sufficiently demonstrates that summary adjudication of this claim was
inappropriate. We therefore address the propriety of the trial court's granting of summary
adjudication in favor of Defendant on this cause of action.
                                             37
subdivision (b)(2) provides: "A request to take a CFRA leave is reasonable if it complies

with any applicable notice requirements, as specified in section 11091 . . . ."

       In turn, California Code of Regulations, title 2, section 11091, subdivision (a)(1)

describes the notice requirements of a reasonable request for CFRA leave in relevant part

as follows: "[A]n employee shall provide at least verbal notice sufficient to make the

employer aware that the employee needs CFRA leave, and the anticipated timing and

duration of the leave. The employee need not expressly assert rights under CFRA or

FMLA, or even mention CFRA or FMLA, to meet the notice requirement; however, the

employee must state the reason the leave is needed, such as, for example, the expected

birth of a child or for medical treatment. The mere mention of 'vacation,' other paid time

off, or resignation does not render the notice insufficient, provided the underlying reason

for the request is CFRA-qualifying, and the employee communicates that reason to the

employer. The employer should inquire further of the employee if necessary to

determine whether the employee is requesting CFRA leave and to obtain necessary

information concerning the leave (i.e., commencement date, expected duration, and other

permissible information)." (Italics added.) Thus, an employer bears a burden, under

CFRA, to inquire further if an employee presents the employer with a CFRA-qualifying

reason for requesting leave.




                                             38
       There is evidence that Moore informed Kennedy that she would have to take leave

for surgery for implantation of a device for her heart condition.10 Defendant has

presented no evidence to dispute that Moore's reason for the requested time off was

CFRA-qualifying. (See § 12945.2, subd. (c)(8) [A "[s]erious health condition" under

CFRA includes "an illness, injury, impairment, or physical or mental condition that

involves . . . [¶] (A) Inpatient care in a hospital, hospice, or residential health care

facility. [¶] (B) Continuing treatment or continuing supervision by a health care

provider"].) The facts presented with respect to the motion for summary judgment

support the conclusion that Moore provided sufficient notice to make Defendant aware of

her need to take CFRA-qualifying leave; at a minimum, there remains a question as to

whether Moore's notification to Kennedy of her need to take leave for surgery for

implantation of a device for her heart condition constituted the "exercise[ ]" of "her right

to take leave for a qualifying CFRA purpose." (Faust, supra, 150 Cal.App.4th at p. 885.)

Defendant, therefore, has not established that Moore cannot meet this element of her

prima facie case.

       Defendant also contends that because it offered a legitimate, nonretaliatory reason

for Moore's layoff, Moore cannot demonstrate pretext, as a matter of law. As we have

explained in part III.B., ante, however, we disagree that the question of pretext with

respect to Moore's termination is appropriate for determination as a matter of law on this


10     Again, Moore informed Kennedy in December 2010 of the likelihood that she
would have to have a device implanted near her heart in early 2011, and told Kennedy in
January 2011 that she "would need 'like two or three' days off in April 2011" for the
surgery.
                                              39
record. We refer to our discussion of the evidence in part III.B., ante, with respect to the

question of pretext.

       Given that there remain material issues of fact in dispute regarding whether

Defendant's proffered reason for Moore's termination was pretextual, Defendant has not

sufficiently demonstrated that it is entitled to summary adjudication of Moore's claim for

unlawful retaliation under CFRA.

F.     Moore's fifth cause of action for interference with CFRA

       In her fifth cause of action, Moore asserts a claim for interference with CFRA.

CFRA makes it unlawful for an employer "to interfere with, restrain, or deny the exercise

of, or the attempt to exercise, any right" provided by CFRA. (§ 12945.2, subd. (t).) An

interference claim under CFRA does not invoke the burden-shifting analysis of the

McDonnell Douglas test. (Faust, supra, 150 Cal.App.4th at p. 879; see also Bachelder v.

America West Airlines, Inc. (9th Cir. 2001) 259 F.3d 1112, 1131 ["there is no room for a

McDonnell Douglas type of pretext analysis when evaluating an 'interference' claim

under [the corresponding FMLA] statute"].) Rather, such a claim requires only that the

employer deny the employee's entitlement to CFRA-qualifying leave. (Faust, supra, at p.

879.) A CFRA interference claim "consists of the following elements: 1) the employee's

entitlement to CFRA leave rights; and (2) the employer's interference with or denial of

those rights." (McClain v. Cenveo Corp. (E.D.Cal., Sept. 16, 2013, 2:12-CV-00765-

GEB-GGH) 2013 U.S.Dist. Lexis 132264, p. *21.)

       Moore contends that she requested leave for a CFRA-qualified reason—i.e., heart

surgery—and that instead of notifying Moore of her right to take CFRA-qualified leave

                                             40
and thereafter allowing her to take such leave, Defendant effectively interfered with her

ability to take CFRA protected leave by terminating her employment. As we have

already concluded in part III.F., there remains, at a minimum, a question as to whether

Moore's notification to Kennedy of her need to take leave for surgery for implantation of

a device for her heart condition provided Defendant with sufficient notice of her need to

take CFRA-qualifying leave. The fact that Moore may not have used the term "CFRA"

in requesting leave, or that she may have suggested that she would use available paid

time off options, does not, in and of itself, render Moore's notice ineffective. (See Cal.

Code Regs., tit. 2, § 11091, subd. (a)(1) ["The mere mention of 'vacation,' other paid time

off, or resignation does not render the notice insufficient, provided the underlying reason

for the request is CFRA-qualifying, and the employee communicates that reason to the

employer"].) Further, contrary to Defendant's position, the evidence does not establish

that Moore's intent was to make an affirmative election not to use CFRA-protected leave.

Specifically, Moore's testimony, on which Defendant relied in asserting that Moore did

not "exercise her rights to take a CFRA leave" (formatting omitted), was not that she had

affirmatively decided not to seek CFRA-protected leave.11



11      Moore's testimony, on which Defendant relied in seeking summary adjudication of
this claim, was not that she did not wish to take CFRA protected leave. Rather, in the
portion of Moore's deposition on which Defendant relies to support its "[u]ndisputed
[m]material [f]act" (boldface & underscore omitted) that Moore "intended to use her
accrued vacation or sick time," and to suggest that she did not intend to use CFRA-
protected leave, Moore was asked whether she had completed FMLA paperwork, which
Moore had obtained from Human Resources. Moore responded that she had not
completed it, and that when she took it to her doctor, her doctor told her, " 'You're not
going to need to take this.' " Moore was then asked whether it was her "understanding
                                             41
       Defendant's reliance on Escriba v. Foster Poultry Farms, Inc. (9th Cir. 2014) 743

F.3d 1236, 1244 (Escriba), is misplaced. In fact, Escriba, which involved claims under

the FMLA, supports our conclusion that summary adjudication of Moore's CFRA

interference claim was not appropriate. The Escriba court held that "an employee can

affirmatively decline to use FMLA leave, even if the underlying reason for seeking the

leave would have invoked FMLA protection." (Escriba, supra, at p. 1244.) In Escriba,

which involved an appeal after a jury verdict, not a summary judgment, the court

determined that sufficient evidence supported the jury's conclusion that the plaintiff had

"elected not to take FMLA leave." (Id. at pp. 1239, 1245.) The issue before the jury was

Escriba's intent at the time she requested a two-week leave. In concluding that there was

sufficient evidence to support the jury's conclusion on this issue, the Escriba court relied

on numerous reasonable inferences that the jury could have drawn based on Escriba's

handling of this leave request and her use of FMLA leave on multiple prior occasions:

          "Circumstantial evidence also suggests that Escriba knew that the
          Human Resources Department, not her supervisors, approved FMLA
          leave because Escriba had successfully requested FMLA leave on
          fifteen prior occasions. A reasonable inference from this evidence is
          that, if Escriba had desired to take FMLA leave, she would have
          arranged for such leave with Human Resources. Considering all the
          evidence, the jury reasonably found that Escriba expressed a desire
          not to take FMLA leave." (Escriba, supra, at p. 1245.)


that [she] didn't need to take it because [she was] only taking a few days off," which
Moore confirmed, and further confirmed that she thought she "could use [her] vacation or
sick time for that." This evidence could lead to a number of reasonable inferences, but it
does not establish, as a matter of law, that Moore had affirmatively elected not to utilize
CFRA-protected leave for her surgery. A fact finder could conclude that Moore had not
even been made aware of her right to use CFRA-protected leave, and, therefore, that she
could not have affirmatively elected not to use it.
                                             42
       The evidence presented on summary judgment in this case is easily distinguishable

from the evidence presented to the jury in Escriba. Unlike in Escriba, there is no

evidence that Moore had ever requested FMLA or CFRA leave prior to the time she

indicated she would need to take a few days off for her surgery. Further, there is no

evidence that Moore was aware of her right to take CFRA leave (as opposed to FMLA

leave); if Moore did not even realize that she had a right to such leave, a fact finder could

conclude that she did not affirmatively decline to use such leave. Further, when Moore

first provided notice to Kennedy of her need for leave, the surgery was many months

away; even at the time Moore was terminated, there was approximately a month and a

half to go before her planned April 2011 surgery. Thus, it is possible that Moore had not

yet made a firm decision as to whether to take vacation leave or legally-protected medical

leave. Therefore, even if one were to conclude that Moore was actually aware of her

right to take CFRA-protected leave, a fact finder could nevertheless also reasonably

conclude from the evidence presented on summary judgment that Moore had formed no

specific intent with respect to seeking CFRA leave (i.e., she had not formed an intent not

to take CFRA leave).

       Further, Defendant fails to acknowledge that summary adjudication of an

interference claim under CFRA may not be appropriate where, as here, the record fails to

establish—as a matter of law—that the employer satisfied a threshold requirement of its

obligations to an employee under CFRA. (See Faust, supra, 150 Cal.App.4th at p. 868.)

Employers subject to the CFRA are required to provide notice to their employees of the

right to request CFRA leave. (Cal. Code Regs., tit. 2, § 11095, subd. (a).) The text of the

                                             43
minimum notice requirements is set forth at California Code of Regulations, title 2,

section 11095, subdivision (d).12 When an employee raises a CFRA interference claim,

there is a "threshold issue of an employer's obligations under section 12945.2 and the

implementing regulations," and whether the employer met those obligations. (Faust,

supra, at p. 881.) This is because "[a] failure to notify an employee of his rights under

FMLA [and thus CFRA] can constitute interference if it affects [the employee's] rights

under [the statute]." (Alcala v. Best Buy Stores, LP (C.D. Cal., Nov. 7, 2012, EDCV 11-

00798-JVS-(OPx)) 2012 U.S.Dist. Lexis 181892, p. *43.)




12      The text of the notice set forth in California Code of Regulations, title 2, section
11095, subdivision (d), states in relevant part: "Under the California Family Rights Act
of 1993 (CFRA), if you have more than 12 months of service with us and have worked at
least 1,250 hours in the 12-month period before the date you want to begin your leave,
you may have a right to a family care or medical leave (CFRA leave). This leave may be
up to 12 workweeks in a 12-month period for the birth, adoption, or foster care placement
of your child or for your own serious health condition or that of your child, parent or
spouse. [¶] . . . [¶] If possible, you must provide at least 30 days' advance notice for
foreseeable events (such as the expected birth of a child or a planned medical treatment
for yourself or of a family member). For events which are unforeseeable, we need you to
notify us, at least verbally, as soon as you learn of the need for the leave. Failure to
comply with these notice rules is grounds for, and may result in, deferral of the requested
leave until you comply with this notice policy. [¶] We may require certification from
your health care provider before allowing you a leave for pregnancy disability or your
own serious health condition. We also may require certification from the health care
provider of your child, parent or spouse who has a serious health condition, before
allowing you a leave to take care of that family member. When medically necessary,
leave may be taken on an intermittent or reduced work schedule."
                                            44
       There is nothing in the separate statements of undisputed facts that would indicate

that Defendant either posted notice or specifically provided notice to Moore of her leave

rights under CFRA, as specifically required by CFRA.13 In Faust, the employer's failure



to establish that it met its CFRA notice obligations precluded summary adjudication of

the employee's CFRA interference claims. (Faust, supra, 150 Cal.App.4th at p. 881.) As

the court in Faust explained, "certain legal consequences" flow from the fact that an

employer "did not give notice to [its employee] of [the employee's] right to leave

under . . . CFRA." (Id. at pp. 868-869.) Given the absence of evidence to establish, as a

matter of law, that Defendant met its CFRA obligations, summary adjudication of

Moore's CFRA interference cause of action in favor of Defendant is inappropriate on this

record.

       Given the numerous conclusions that a fact finder could draw from the evidence

Defendant presented in support of summary adjudication of Moore's CFRA interference

claim, some of which do not support judgment in favor of Defendant, as well as the

absence of evidence that Defendant met its own obligations under CFRA, we must


13      There is evidence in the record from which one could infer that Moore was aware
that she might have the right to take leave for medical reasons pursuant to FMLA, given
that there is evidence that Moore requested FMLA paperwork from the Human Resources
Department. However, one could also reasonably infer from this fact that Moore was
unaware of her rights under CFRA, since she did not request, and there is no indication
that she was provided (despite her failure to request), the paperwork that would be
necessary for her to exercise her right to leave under CFRA. Again, we must view the
evidence in a light favorable to Moore—and we must resolve any doubts or ambiguities
in her favor—for purposes of Defendant's summary judgment motion. (See Ambriz,
supra, 146 Cal.App.4th at p. 1530.)
                                            45
reverse the trial court's grant of summary adjudication of the fifth cause of action for

interference under CFRA.

G.     We need not consider Moore's evidentiary arguments on appeal

       Moore contends that the trial court's ruling with respect to Defendant's motion for

summary judgment was premised on "several evidentiary mistakes." Specifically, Moore

takes issue with (1) the trial court's reliance on certain portions of the Balestrieri's

deposition regarding the differences between Moore's former position and that of Shea,




                                               46
(2) the trial court's overruling of Moore's objections to portions of Defendant's evidence

on the procedural ground that Moore objected to the separate statement of undisputed

facts rather than the foundational evidence on which such facts were based, and (3) the

trial court's sustaining of objections to Moore's introduction of certain documents.

       We need not address these evidentiary concerns because the correctness of these

challenged evidentiary rulings is irrelevant to our determination of the substantive issues

raised in this appeal. Even assuming that the trial court was correct with respect to the

evidence that it considered and excluded, the court nevertheless erred in granting

summary adjudication in favor of Defendant on Moore's first, second, third, fifth, and

sixth causes of action. Further, nothing about the evidence that Moore contends was

either inappropriately excluded or improperly considered could have assisted Moore in

establishing that summary adjudication in favor of Defendant was not proper with respect

to her fourth cause of action, for retaliation under FEHA.




                                            47
                                             IV.

                                       DISPOSITION

       The court's granting of summary judgment in favor of Defendant is reversed.

Defendant is not entitled to summary adjudication in its favor on Moore's first, second,

third, fifth, and sixth causes of action. However, Defendant is entitled to summary

adjudication in its favor with respect to Moore's fourth cause of action. We remand the

matter to the trial court for further proceedings.

       Moore is entitled to her costs on appeal.



                                                                      AARON, J.

WE CONCUR:

McCONNELL, P. J.

HUFFMAN, J.




                                              48
