Filed 11/13/19
                   CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
           SECOND APPELLATE DISTRICT
                  DIVISION FOUR
JOHN GLYNN,                             B296735

     Petitioner,                        (Los Angeles County
                                        Super. Ct. No.
     v.                                 BC636862)
THE SUPERIOR COURT OF LOS
ANGELES COUNTY,

     Respondent;

ALLERGAN, INC., et al.,

     Real Parties in Interest.


      ORIGINAL PROCEEDINGS; petition for writ of mandate.
Stephanie M. Bowick, Judge. Petition granted in part and denied
in part.
      Magnanimo & Dean, Frank A. Magnanimo; Alexander
Krakow & Glick LLP, Tracy L. Fehr for Petitioner.
      Paul Hastings, Stephen L. Berry and Blake R. Bertagna for
Real Parties in Interest.
                         INTRODUCTION
       A temporary corporate benefits staffer mistakenly thinks
an employee has transitioned from short term disability (STD) to
long term disability (LTD) and is unable to work with or without
an accommodation. She fires him. The terminated employee tries
to correct the misunderstandings, but for months the corporation
ignores his entreaties. Does this constitute direct evidence of
disability discrimination under the Fair Employment and
Housing Act (FEHA) (Government Code § 12900 et seq.)? For the
reasons described below, we decide it does, and therefore reverse
the portion of the trial court’s order granting the corporation’s
motion for summary adjudication of the employee’s disability
discrimination cause of action. We also reverse the portions of the
order granting summary adjudication of the employee’s
retaliation, failure to prevent discrimination, and wrongful
termination causes of action. We publish to clarify that even a
legitimate company policy, if mistakenly applied, may engender
FEHA disability discrimination liability.

      FACTUAL AND PROCEDURAL BACKGROUND

      Petitioner John Glynn worked for real parties in interest
Allergan, Inc. and Allergan USA, Inc. (collectively, Allergan) as a
pharmaceutical sales representative. His primary duties involved
driving to doctors’ offices to promote Allergan’s pharmaceutical
products. In January 2016, Glynn requested, and Allergan
approved, a medical leave of absence for a serious eye condition
(myopic macular degeneration). Glynn’s doctor provided a
medical certification designating Glynn’s work status as “no
work” because Glynn “can’t safely drive.”




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        Allergan’s reasonable accommodation policy lists
“reassignment to a vacant position” as a potential
accommodation. Thus, while on medical leave, Glynn repeatedly
asked for help getting a new job within the company that did not
require driving, and applied for several open positions, but
Allergan never reassigned him.
        On July 20, 2016, a temporary Allergan benefits
department employee, Anne Marie Perosino, sent a letter to
Glynn informing him that his employment was being terminated
effective July 20, 2016: “We received notification from Matrix
System of your approval for Long Term Disability, effective July
20, 2016. According to the Allergan Family and Medical Leave
(AFML) policy, you will no longer be eligible to remain on
Inactive Status and your employment has ended on 07/20/16, due
to your inability to return to work by a certain date with or
without some reasonable workplace accommodation.” Perosino
mistakenly believed that Glynn’s termination was required under
Allergan’s policy and practice. Allergan’s actual policy, however,
is that termination is required once the employee has applied,
and been approved, for LTD benefits; not, as Perosino believed,
once an employee’s “transition date” from STD to LTD benefits
(i.e. the date the employee becomes eligible for LTD benefits) has
passed. At no point did Glynn apply for LTD, and it is undisputed
that he could have returned to work with reasonable
accommodation. The day after his termination, Glynn emailed a
letter to the members of the Allergan Human Resources
Department, including its director, stating he never applied for
LTD, that he could work in any position that did not require
driving, and protesting the mistaken decision to terminate him.




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       Glynn was not reinstated, so he sued Allergan alleging
eight causes of action: (1) disability discrimination; (2) failure to
engage in the interactive process; (3) failure to accommodate
disability; (4) retaliation; (5) failure to prevent discrimination and
harassment; (6) retaliation in violation of Labor Code section
1102.5; (7) wrongful termination/adverse treatment in violation
of public policy; and (8) intentional infliction of emotional
distress.
       Nine months after Glynn informed Allergan he was not on
LTD and was ready and willing to work in a suitable position,
and after he filed suit, Allergan’s Chief Human Resources Officer,
Karen Ling, sent Glynn a letter stating her belief that “the
human resources personnel involved . . . sincerely believed the
actions taken were appropriate . . . [but that the reasonable
accommodation] process could and should have been handled
better,” and conceding “[his] employment should not have been
ended.” Ling offered to reinstate Glynn unconditionally with full
back pay and to continue his pay and benefits at the level he was
receiving before he went out on medical leave while he identified
a job to which he wanted to be assigned and for which he was
qualified. Glynn responded by rejecting Allergan’s offer of
reinstatement because Ling’s letter did not identify any specific
position being offered or the compensation, and Glynn’s stated
belief that Allergan would continue to mistreat him and fail to
place him in an open position. Ling sent another letter to Glynn
asking him to reconsider his rejection of her reinstatement offer.
Glynn responded to Ling’s second letter, again rejecting the
reinstatement offer because he did not “believe [her] offer was
made in good faith.” Glynn’s treating psychologist also declared
Glynn’s psychological well-being would have been negatively




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affected had he returned to Allergan. Glynn’s rejection of Ling’s
reinstatement offers became the basis for Allergan’s failure to
mitigate damages affirmative defense.
       Allergan moved for summary judgment or, alternatively,
summary adjudication of each cause of action. It also moved for
summary adjudication of its failure to mitigate damages
affirmative defense and Glynn’s request for punitive damages. In
a lengthy and detailed ruling, the trial court denied Allergan’s
motion for summary judgment, but granted summary
adjudication in favor of Allergan on Glynn’s causes of action for:
(1) disability discrimination; (2) retaliation; (3) failure to prevent
discrimination and harassment; (4) retaliation in violation of
Labor Code section 1102.5; (5) wrongful termination/adverse
treatment in violation of public policy; and (6) intentional
infliction of emotional distress. It also granted Allergan’s motion
for summary adjudication of its failure to mitigate affirmative
defense and the unavailability of punitive damages. The court
denied Allergan’s motion for summary adjudication of Glynn’s
causes of action for (1) failure to engage in the interactive process
and (2) failure to reasonably accommodate his disability.
       Glynn filed a petition for writ of mandate in this court to
reverse the trial court’s summary adjudication on all causes of
action and defenses except summary adjudication of his claims
for Labor Code section 1102.5 retaliation and intentional
infliction of emotional distress. We issued an alternative writ
ordering the court to either: (1) vacate its summary adjudication
order and instead enter a new order denying the motion on the
following causes of action: the first cause of action for disability
discrimination on the ground Glynn has shown direct evidence of
disability discrimination; the fourth cause of action for disability-




                                  5
related retaliation on the ground Glynn demonstrated triable
issues of material fact; the fifth cause of action for failure to
prevent discrimination and harassment; and the seventh cause of
action for wrongful termination/adverse treatment in violation of
public policy on the ground that these causes of action are
dependent on or derivative of the first cause of action; or, in the
alternative (2) show cause why a peremptory writ of mandate
should not issue. The trial court did not change its order.
Allergan filed a return to the writ and Glynn filed a reply.

                         DISCUSSION

I.    Allergan is Not Entitled to Summary Adjudication of
      Glynn’s First Cause of Action for Disability
      Discrimination

       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 [93 S. Ct. 1817, 36 L. Ed 2d 688]
(McDonnell Douglas). (Guz v. Bechtel National, Inc. (2000) 24
Cal.4th 317, 354 [100 Cal. Rptr. 2d 352] (Guz).) The plaintiff has
the initial burden to make a prima facie showing of employment
discrimination.1 (Ibid.) If the plaintiff establishes a prima facie


1 The elements of a disparate treatment disability discrimination
claim are that the plaintiff (1) suffered from a disability or was
regarded as suffering from a disability, (2) could perform the
essential duties of a job with or without reasonable
accommodations, and (3) was subjected to an adverse
employment action because of the disability or perceived
disability. (Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th
297, 310.)


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case, the burden shifts to the employer to produce evidence of a
legitimate, nondiscriminatory reason for the adverse employment
action. (Id. at p. 355.) If the employer sustains this burden, 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. (Id. at p. 356)
       The McDonnell Douglas three-stage framework does not
apply, however, where the plaintiff presents direct evidence of
discrimination. Thus, in disability discrimination cases, the
threshold issue is “whether there is direct evidence that the
motive for the employer’s conduct was related to the employee’s
physical or mental condition.” (Wallace v. County of Stanislaus
(2016) 245 Cal.App.4th 109, 123 (Wallace).) “[A] plaintiff alleging
disability discrimination can establish the requisite employer
intent to discriminate by proving (1) the employer knew that
plaintiff had a physical condition that limited a major life
activity, or perceived him to have such a condition, and (2) the
plaintiff’s actual or perceived physical condition was a
substantial motivating reason for the defendant’s decision to
subject the plaintiff to an adverse employment action.” (Id. at p.
129.) Relying on Wallace, Glynn contends he provided direct
evidence of disability discrimination, making the McDonnell
Douglas framework inapplicable. We agree.
       In Wallace, the county removed a deputy sheriff from his
job as a bailiff and placed him on an unpaid leave of absence
based on its good faith—but incorrect—assessment that he could
not safely perform his duties as a bailiff even with reasonable
accommodation. (Wallace, supra, 245 Cal.App.4th at p. 115.) The
court held the trial court erred in instructing the jury that
animus or ill will was required to prove discriminatory intent.




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(Ibid.) The court explained: “California law does not require an
employee with an actual or perceived disability to prove that the
employer’s adverse employment action was motivated by
animosity or ill will against the employee. Instead, California’s
statutory scheme protects employees from an employer’s
erroneous or mistaken beliefs about the employee’s physical
condition. ([Gov. Code,] § 12926.1, subd. (d).) In short, the
Legislature decided that the financial consequences of an
employer’s mistaken belief that an employee is unable to safely
perform a job’s essential functions should be borne by the
employer, not the employee, even if the employer’s mistake was
reasonable and made in good faith.” (Ibid.)
       Here, neither party contends Glynn could reasonably be
categorized as totally disabled and unable to perform any job at
Allergan with or without reasonable accommodation. That’s how
he was categorized, however. The evidence demonstrates
Perosino mistakenly believed Glynn transitioned to LTD, from
which she erroneously concluded Glynn was unable to work, with
or without an accommodation. As noted above, Perosino’s
termination letter to Glynn states in part, “your employment has
ended on 07/20/16, due to your inability to return to work by a
certain date with or without some reasonable workplace
accommodation.” Glynn recognizes Allergan’s actual policy is to
terminate employees only after they have applied, and been
approved, for LTD benefits. That presumably is because a policy
automatically requiring termination of a disabled employee who
goes on LTD can only be lawful if the employee certifies he or she
is unable to work with or without an accommodation. (See e.g.
Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166
Cal.App.4th 952, 976 [the plain language of Government Code




                                8
section 12940(a) “clearly states that an employer is not liable for
discharging a person with a disability because of the disability if
the person is unable to perform the essential functions of the job
with or without reasonable accommodations.”]; see also Hanson v.
Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 226-227
[“‘Reasonable accommodation does not require the employer to
wait indefinitely for an employee’s medical condition to be
corrected.’”].)
       Even assuming Perosino’s mistakes were reasonable and
made in good faith, a lack of animus does not preclude liability
for a disability discrimination claim. (Wallace, supra, 245
Cal.App.4th at p. 115.) Accordingly, we conclude Glynn provided
direct evidence of disability discrimination—Allergan terminated
him because Perosino mistakenly believed he was totally disabled
and unable to work. This is enough to defeat a motion for
summary adjudication.

II.   Allergan is Not Entitled to Summary Adjudication of
      Glynn’s Fourth Cause of Action for Retaliation

       The McDonnell Douglas three-stage framework applies to a
FEHA retaliation cause of action. (Yanowitz v. L’Oreal USA, Inc.
(2005) 36 Cal.4th 1028, 1042 (Yanowitz).) Under McDonnell
Douglas, the plaintiff has the burden of establishing a prima facie
case of retaliation by showing: (1) he engaged in “protected
activity”; (2) he was subjected to an adverse employment action;
and (3) there is a causal link between the protected activity and
the adverse employment action. (Yanowitz, supra, 36 Cal.4th at
p. 1052.) “Although an employee need not formally file a charge
in order to qualify as being engaged in protected opposing




                                9
activity, such activity must oppose activity the employee
reasonably believes constitutes unlawful discrimination, and
complaints about personal grievances or vague or conclusory
remarks that fail to put an employer on notice as to what conduct
it should investigate will not suffice to establish protected
conduct.” (Id. at pp. 1046-1047, fn. omitted.) “‘The relevant
question . . . is not whether a formal accusation of discrimination
is made but whether the employee’s communications to the
employer sufficiently convey the employee’s reasonable concerns
that the employer has acted or is acting in an unlawful
discriminatory manner.’” (Id. at p. 1047.)
       Glynn relies on four emails to demonstrate he engaged in
“protected activity” by complaining he was not being
accommodated for his disability. For example, in an email dated
May 19, 2016 to Perosino and other Allergan human resources
employees, Glynn wrote, “Given the amount of time that has
passed and the minimal response I have received from the entire
Human Resources Department, I feel that my current condition
has been ignored.” He further expressed, “I have identified
several appropriate open positions on the Allergan Career Job
Board over this time frame, but no action ever appears to take
place.” In a June 8, 2016 email to Luwaine Defreese, an employee
in Allergan’s Human Resources department, Glynn stated “I have
been previously told by you . . . that disability is an alternative
accommodation in lieu of work. It is not. I have been requesting
to return to work for over four months. . . . . I had hoped that
after months of being ignored this note would expedite my return
to work. It hasn’t. The company cannot just allow me to languish
on disability. [¶] I no longer believe you or the company are




                                10
sincere in accommodating me and returning me to work in a
comparable position. . . .”
         We disagree with the trial court’s conclusion that these
emails do not constitute complaints. The emails would permit a
reasonable trier of fact to find Glynn sufficiently communicated
to Allergan that he believed the way he was being treated (i.e.
ignored and not accommodated for his disability) was
discriminatory. The evidence also demonstrates Glynn was
terminated two months after he complained. Temporal proximity
between the protected activity and the adverse action is sufficient
to shift the burden to the employer to articulate a
nondiscriminatory reason for the adverse employment action.
(See Serri v. Santa Clara University (2014) 226 Cal.App.4th 830,
868.) Further, there are disputed issues of fact with respect to
whether Allergan acted in good faith in attempting to find a job
for Glynn within the company. Moreover, Allergan was
immediately made aware of Perosino’s error in terminating
Glynn contrary to Allergan’s policy, yet waited nine months to
offer reinstatement. Based on these facts, a jury could infer the
termination was retaliatory.
         As noted above, Allergan has not articulated a legitimate
nondiscriminatory reason for Glynn’s termination. Although
Perosino was mistaken in her application of Allergan’s policy,
underlying her mistake was an unfounded determination that
Glynn was completely disabled and unable to work with or
without an accommodation. (Wallace, supra, 245 Cal.App.4th at
p. 115 [“an employer’s mistaken belief that an employee is unable
to . . . perform a job’s essential functions should be borne by the
employer, not the employee . . .”].




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      Thus, we conclude the trial court erred in granting
Allergan’s motion for summary adjudication of Glynn’s FEHA
retaliation cause of action.

III.   Glynn’s Fifth Cause of Action for Failure to Prevent
       Discrimination and Seventh Cause of Action for
       Wrongful Termination in Violation of Public Policy
       Should Survive Summary Adjudication for the Same
       Reasons as His Causes of Action for Discrimination
       and Retaliation

       Allergan concedes Glynn’s causes of action for failure to
prevent discrimination and wrongful termination are derivative
of Glynn’s FEHA disability discrimination and retaliation causes
of action. We therefore conclude Allergan is not entitled to
summary adjudication of these claims for the same reasons it is
not entitled to summary adjudication of Glynn’s FEHA disability
and retaliation claims.




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                          DISPOSITION

Let a peremptory writ of mandate issue directing respondent
court to vacate its March 11, 2019 order to the extent it granted
summary adjudication of Glynn’s (1) first cause of action for
disability discrimination, (2) fourth cause of action for retaliation,
(3) fifth cause of action for failure to prevent discrimination, and
(4) seventh cause of action for wrongful termination in violation
of public policy, and enter a new order denying summary
adjudication of those causes of action. The balance of the trial
court’s March 11, 2019 order is unaffected by our decision, and
we express no view on it at this time. Glynn is awarded his costs
in this proceeding.



                CERTIFIED FOR PUBLICATION




                                                        CURREY, J.



WE CONCUR:



      MANELLA, P. J.




      WILLHITE, J.




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