                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           DEC 15 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


GARLAND WILFONG,                                 Nos. 15-55473
                                                      15-56000
              Plaintiff-Appellant,
                                                 D.C. No.
 v.                                              2:14-cv-04583-R-MRW

THARCO PACKAGING, INC.; et al.,
                                                 MEMORANDUM*
              Defendants-Appellees.


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

                     Argued and Submitted December 7, 2016
                              Pasadena, California

Before: CALLAHAN, BEA, and IKUTA, Circuit Judges.

      Garland Wilfong appeals the district court’s order granting summary

judgment in favor of Tharco Packaging, Inc., on his claims for violation of the

California Fair Employment and Housing Act (FEHA), Cal. Gov. Code § 12940,




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
and the California Family Rights Act (CFRA), id. § 12945.2. We have jurisdiction

under 28 U.S.C. § 1291, and we reverse and remand.

      The district court erred in granting summary judgment in favor of Tharco on

Wilfong’s FEHA claims of disability discrimination, failure to accommodate,

failure to engage in the interactive process, and failure to prevent discrimination.

There is a genuine issue of material fact as to whether Wilfong is disabled, given

evidence in the record that gout and arthritis limited his major life activities of

working and walking. See Cal. Gov. Code § 12926(m)(1)(B); EEOC v. United

Parcel Serv., Inc., 424 F.3d 1060, 1071 (9th Cir. 2005). There is also a genuine

issue of material fact regarding whether Tharco failed to provide reasonable

accommodations for Wilfong and failed to engage in the interactive process in

response to his requests for use of a cot, a reduction in overtime, and more medical

leave time. Finally, there is a genuine issue of material fact as to whether

Wilfong’s disability was a substantial motivating factor in Tharco’s imposition of

attendance discipline on Wilfong (including warnings and suspension) and in

Wilfong’s termination. See Harris v. City of Santa Monica, 56 Cal. 4th 203, 226

(2013). Although Tharco provided legitimate nondiscriminatory reasons for

disciplining and terminating Wilfong, a reasonable jury could conclude that these

reasons were pretextual based on evidence that decisionmakers (the plant manager,


                                            2
the general manager, and human resources personnel) were hostile to the use of

medical leave by plant employees (including by Wilfong), that Tharco

intentionally interpreted Wilfong’s medical leave requests in a manner unfavorable

to Wilfong and did not explain this interpretation to Wilfong until after he was

disciplined, and that Tharco’s determination that Wilfong committed a second

lock-out/tag-out violation was made in order to trigger his automatic termination.

      For the same reasons, the district court erred in dismissing Wilfong’s FEHA

claim that Tharco retaliated against him for engaging in protected activities. While

Wilfong’s requests for accommodation were not FEHA-protected activity, see

Moore v. Regents of the Univ. of Cal., 248 Cal. App. 4th 216, 247 (2016), it is

undisputed that Wilfong made complaints to his supervisor regarding attendance

discipline and refused to sign the July 2013 suspension notice, both of which

constitute protected activity under FEHA, see Castro-Ramirez v. Dependable

Highway Express, Inc., 2 Cal. App. 5th 1028, 1050 (2016). Further, a reasonable

jury could infer causation from the closeness in timing between these activities and

subsequent adverse employment actions. See Flait v. N. Am. Watch Corp., 3 Cal.

App. 4th 467, 478 (1992).

      Wilfong’s CFRA claims for interference and retaliation also survive

summary judgment. There is a genuine issue of material fact as to whether Tharco


                                          3
failed to request recertification from Wilfong in a timely manner, see Cal. Code

Regs. tit. 2, § 11091(b)(2), and therefore interfered with Wilfong’s CFRA rights by

counting CFRA leave as absences under its attendance policy, see Avila v. Cont’l

Airlines, Inc., 165 Cal. App. 4th 1237, 1254 (2008). Further, a reasonable trier of

fact could find that Tharco retaliated against Wilfong for asserting his entitlement

to CFRA leave by suspending him. See Dudley v. Dep’t of Transp., 90 Cal. App.

4th 255, 261 (2001).1

      REVERSED and REMANDED.




      1
        Because we reverse and remand, we vacate the district court’s award of
costs to Tharco as moot. Cf. United States ex rel. Newsham v. Lockheed Missiles
& Space Co., 190 F.3d 963, 973 (9th Cir. 1999).
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