FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GILBERTO SANTILLAN, an

individual,

Plaintiff-Appellant,

v.

USA WASTE OF CALIFORNIA,

INC., a Delaware Corporation,

Defendant-Appellee.

No. 15-55238

D.C. No.

2:14-cv-00335-AB-JCG

OPINION

Appeal from the United States District Court

for the Central District of California

Andre Birotte, Jr., District Judge, Presiding

Argued and Submitted December 7, 2016

Pasadena, California

Filed April 7, 2017

Before: Harry Pregerson, Jacqueline H. Nguyen,

and John B. Owens, Circuit Judges.

Opinion by Judge Pregerson
2 SANTILLAN V. USA WASTE OF CAL.

SUMMARY*

Employment Discrimination

The panel reversed the district court’s grant of summary

judgment in favor of USA Waste of California, Inc. on

Gilberto Santillan’s wrongful termination claim under

California law based on age discrimination and retaliation;

affirmed the district court’s denial of Santillan’s request for

leave to amend the complaint; and remanded for further

proceedings.

The panel held that the district court erred in holding that

Santillan failed to establish a prima facie age discrimination

claim. The panel further held that USA Waste failed to rebut

the presumption of unlawful discrimination because it did not

offer a legitimate reason for firing Santillan when USA

Waste’s only proffered reason was Santillan’s failure to

provide proof of his legal right to work in the United States

as required by the Immigration Reform and Control Act of

1986 (IRCA). Specifically, the panel held that IRCA

exempted Santillan from the proof of employment eligibility

that USA Waste demanded. The panel also held that making

Santillan’s reinstatement contingent upon such proof would

violate California public policy.

The panel held that Santillan established a prima facie

retaliation case and a presumption of unlawful retaliation. 

Specifically, the panel held that the district court erred in

concluding that Santillan did not engage in protected activity

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
SANTILLAN V. USA WASTE OF CAL. 3

when he used an attorney to negotiate his reinstatement. The

panel held that California public policy protected Santillan’s

right to representation by an attorney to negotiate the terms

and conditions of employment. The panel further held that

Santillan established a nexus between his termination and his

protected activity where USA Waste fired Santillan because

he was represented by his attorney at the settlement

agreement negotiations.

Finally, the panel held that the district court did not abuse

its discretion by denying Santillan’s request for leave to

amend the complaint. The panel held that Santillan failed to

show he was diligent in seeking to amend the complaint

because his request to amend came eight months after the

deadline for making such a request.

COUNSEL

Holly Noelle Boyer (argued), and Andrew N. Chang, Esner

Chang & Boyer, Pasadena, California; Louanne Masry and

John C. Taylor, Taylor & Ring LLP, Los Angeles, California;

for Plaintiff-Appellant.

Christopher J. Boman (argued), Fisher &Phillips LLP, Irvine,

California; Kristen J. Nesbit, Fisher & Phillips LLP, Los

Angeles, California; for Defendant-Appellee.
4 SANTILLAN V. USA WASTE OF CAL.

OPINION

PREGERSON, Circuit Judge:

INTRODUCTION

This case arises from a wrongful employment termination

dispute between Gilberto Santillan, a 53-year-old garbage

truck driver, and his employer of 32 years, USA Waste of

California, Inc. (“USA Waste”). Santillan filed this action

against USA Waste alleging a wrongful termination claim

based on age discrimination and retaliation. The district court

granted summary judgment in favor of USA Waste.

We have jurisdiction under 28 U.S.C. § 1291. We

reverse. We hold that the district court erred by granting

summary judgment in favor of USA Waste because

(1) Santillan established a prima facie case under both his age

discrimination and retaliation theories; and (2) USA Waste

failed to introduce any evidence that it had a legitimate

reason for firing him.

We also hold that the district court did not abuse its

discretion when it denied Santillan’s oral request for leave to

amend the complaint eight months after the filing deadline.

FACTUAL BACKGROUND

Gilberto Santillan started working for USA Waste as a

residential garbage truck driver in 1979.1 For 32 years, he

serviced the community of Manhattan Beach, California.

1 Unless otherwise indicated, this factual background contains facts

that either are undisputed or USA Waste has conceded are immaterial and

therefore do not foreclose summary judgment.
SANTILLAN V. USA WASTE OF CAL. 5

Exemplary Employee

In March 2011, USA Waste’s garbage collection contract

with the City of Manhattan Beach was up for renewal. In

presenting its case to the Manhattan Beach City Council,

USA Waste specifically highlighted Santillan’s exemplary

service to the community. After hearing from Manhattan

Beach homeowners who praised Santillan’s exemplary

service to their community, the Manhattan Beach City

Council renewed USA Waste’s contract.

December 5, 2011, Termination

Santillan was rarely disciplined during his first 30 years

at USA Waste. But this situation changed in January 2009,

after USA Waste assigned Steve Kobzoff as Santillan’s new

Manhattan Beach route manager.

Between January 2009 and July 2010, Kobzoff attempted

to discipline Santillan six times. The parties dispute whether

these “write ups” violated the procedural protections afforded

by USA Waste’s collective bargaining agreement. USA

Waste does not defend its termination of Santillan based on

these six disputed write-ups.

On December 5, 2011, USA Waste fired Santillan for the

first time. USA Waste contends that it fired Santillan then

because he had four accidents in a 12-month period for which

Kobzoff disciplined Santillan using the procedures required

by USA Waste’s collective bargaining agreement. Santillan

disputes both that he had four accidents and that USA Waste

followed the procedures required by the collective bargaining

agreement.
6 SANTILLAN V. USA WASTE OF CAL.

Another employee, Janson Vartanian, replaced Santillan. 

At summary judgment, USA Waste submitted a declaration

from its human resources employee Maria Diaz stating that

the employee who replaced Santillan was “over 40 years of

age” and had eleven years experience driving garbage trucks.

Santillan testified that he was one of five older Spanishspeaking employees fired or suspended once Kobzoff was

assigned as USA Waste’s Manhattan Beach route manager. 

Although Santillan could not recall the names of the four

other Spanish-speaking employees, Kobzoff corroborated

Santillan’s statement by identifying Jesus Zamora and Rojilio

Mejia as two such Spanish-speaking employees who were

terminated.

Public Outcry

On December 7, 2011, pursuant to the collective

bargaining agreement and with the assistance of his attorney,

Santillan filed a formal grievance against USA Waste

challenging his December 5, 2011, termination.

After Santillan’s formal grievance was filed, USA Waste

received hundreds of letters from Manhattan Beach

homeowners who live in the area served by Santillan,

demanding that USA Waste reinstateSantillan’s employment. 

In their letters, the homeowners reminded USA Waste that it

succeeded in securing the renewal of its important garbage

collection contract with Manhattan Beach in March 2011,

because the homeowners came out in droves to support

Santillan, their “First Class” residential garbage truck driver.

The homeowners demanded that USA Waste reinstate

Santillan because he “positively impacted every family on
SANTILLAN V. USA WASTE OF CAL. 7

[the] street,” and was “extremely helpful,” going above and

beyond his responsibilities. One homeowner made it a point

to introduce her sons to Santillan because he “works hard,

and has a beautiful spirit and attitude,” and “in terms of class

and integrity and a radiant personality there is no one in the

world who can hold a candle to Gilberto [Santillan].” In

contrast, days after Santillan was fired, Manhattan Beach

residents reported being frustrated finding their trash cans

emptied at dusk and left “sitting in[] the street – creating a

hazard to oncoming cars.”

The homeowners’ sentiments were published in a local

newspaper, which also included a story from a homeowner

whose son dressed up as Santillan for Halloween because he

considers Santillan “a hero.”

The May 2012, Settlement Agreement

On May 17, 2012, in the presence of USA Waste’s

attorney, Santillan’s attorney, and a union representative,

USA Waste and Santillan signed a “Settlement Agreement

and Last Chance Agreement” (“Settlement Agreement”), in

which USA Waste agreed to reinstateSantillan’s employment

if he passed the California Department of Transportation drug

test and physical exam, a criminal background check, and “eVerify.”

2

In exchange, Santillan agreed to dismiss the

2

 The term “e-Verify” was not defined in the Settlement Agreement. 

Our case law has described “e-Verify” as an “electronic verification

system” that is “voluntary” under federal law and is used “to check the

work-authorization status of employees through federal records.” 

Chicanos Por La Causa, Inc. v. Napolitano, 558 F.3d 856, 860 (9th Cir.

2009), aff’d, Chambers of Commerce of U.S. v. Whiting, 563 U.S. 582

(2011). USA Waste argues that this term meant Santillan agreed to abide

by a regulation under the Immigration Reform and Control Act of 1986
8 SANTILLAN V. USA WASTE OF CAL.

December 7, 2011, grievance he filed against USA Waste.

USA Waste Fails to Reinstate Santillan

Santillan successfully completed the California

Department of Transportation drug test, the physical exam,

and the criminal background check.

In response, USA Waste’s human resources employee

Maria Diaz sent Santillan a letter informing him that his first

day back at work would be July 16, 2012. The letter also told

Santillian, “you will need to complete an I-9 form and show

documentation of your right to work in the U.S.” Diaz’s

letter to Santillan was written in English, even though USA

Waste was aware that Santillan communicated in Spanish. 

The letter only included the fifth page of the employment

eligibility verification Form I-9 (“Form I-9”), which was

printed in English even though it was available in Spanish.3

Santillan reported to work on July 16, 2012, with his

driver’s license and social security card to complete the Form

I-9. However, Diaz informed Santillan that he also needed a

(“IRCA”) addressing the documentation that new employees submit to

show their authorization to work in the United States. However, the IRCA

contains two provisions that, for the reasons discussed below, exempt

Santillan from this requirement. See discussion, infra, Part II.B.1.

3 The operative version of the Form I-9 was five pages when USA

Waste fired Santillan on July 24, 2012. See Form I-9 Employment

Eligibility Verification, OMB No. 1615-0047 (expired 08/31/12).
SANTILLAN V. USA WASTE OF CAL. 9

work authorization number and its expiration date. Santillan

did not have that information with him. Diaz asked Santillan

to bring that information to work the next day.

4

On each of the following two days, Santillan attempted to

provide the requested information by giving Diaz a letter with

an identification number. According to Diaz, Santillan was

unable to provide the expiration date and she could not

complete electronic employment verification of his work

authorization without the expiration date.

On the third day, Diaz sent Santillan home. Diaz testified

that she “told him he couldn’t work, and that we would be in

contact.” Six days later, on July 24, 2012, USA Waste sent

a letter to Santillan informing him that USA Waste was firing

him because he did not provide “proof of your legal right to

work in the United States within three days of hire, as

required by the Immigration Control and Reform Act of 1986,

[sic][and] the Settlement Agreement.”

PROCEDURAL BACKGROUND

On December 4, 2013, Santillan filed a complaint against

USA Waste in Los Angeles County Superior Court, alleging

wrongful termination in violation of California public policy. 

Santillan advanced two different theories for this claim based

on the violation of two different public policies: (1) age

4 USA Waste argues that it needed Santillan’s information within

three days because the IRCA requires that an employer complete the

verification of a new employee’s work authorization status within the new

employee’s first three days of work. See 8 C.F.R. § 274a.2(b)(1)(ii). 

However, as discussed below, Santillan was exempt from this regulation

because he was continuing his employment. See discussion, infra, Part

II.B.1.
10 SANTILLAN V. USA WASTE OF CAL.

discrimination in violation of the public policy evinced in the

Fair Employment and Housing Act (“FEHA”), Cal. Gov’t

Code § 129405; and (2) that he was wrongfully terminated in

retaliation for having an attorney represent him during the

Settlement Agreement negotiations with USA Waste.6 USA

Waste removed this case to federal court.

On November 14, 2014, USA Waste filed a summary

judgment motion. The district court held a hearing on

January 12, 2015. At the summary judgment hearing,

Santillan’s attorney asked the court for leave to amend the

complaint to add a breach of contract claim.

On January 16, 2015, the district court: (1) granted

summary judgment in favor of USA Waste on Santillan’s

wrongful termination claim based on age discrimination,

holding that Santillan failed to establish a prima facie case;

(2) granted summary judgment in favor of USA Waste on

Santillan’s wrongful termination claim based on retaliation,

holding that Santillan’s failure to provide the documentation

that USA Waste demanded in the three-day time frame it

required was a “legitimate[], non-retaliatory reason for the

5

It is an unlawful employment practice for an employer to

discriminate against a person based on “race, religious creed, color,

national origin, ancestry, physical disability, mental disability, medical

condition, genetic information, marital status, sex, gender, gender identity,

gender expression, age, sexual orientation, or military and veteran status.” 

Cal. Gov’t Code § 12940.

6 Santillan also alleged the following claims: (1) failure to pay

overtime, Cal. Lab. Code § 1194; (2) waiting time penalties, Cal. Lab.

Code §§ 201–03; and (3) failure to provide meal and rest breaks, Cal. Lab.

Code §§ 226.7, 512, 1174. However, Santillan later abandoned these

claims during the hearing on USA Waste’s summary judgment motion. 

These claims are not relevant to this appeal.
SANTILLAN V. USA WASTE OF CAL. 11

July 2012 termination;” and (3) denied Santillan’s request for

leave to amend.

Santillan timely appealed these rulings.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction under 28 U.S.C. § 1291. We review

de novo a district court’s grant of summary judgment. Albino

v. Baca, 747 F.3d 1162, 1168 (9th Cir. 2014) (en banc). 

Summary judgment is appropriate where “there is no genuine

dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). In our

de novo review of the district court’s summary judgment

ruling, we view the evidence in the light most favorable to the

non-moving party. Albino, 747 F.3d at 1168.

We review a district court’s denial of leave to amend for

abuse of discretion. Crowley v. Bannister, 734 F.3d 967, 977

(9th Cir. 2013).

DISCUSSION

Santillan appeals the district court’s (1) grant of summary

judgment in favor of USA Waste on Santillan’s wrongful

termination claim under an age discrimination theory;

(2) grant of summary judgment in favor of USA Waste on

Santillan’s wrongful termination claim based on retaliation

for using an attorney; and (3) denial of Santillan’s request for

leave to amend the complaint.
12 SANTILLAN V. USA WASTE OF CAL.

I. McDonnell Douglas’s three-prong burden-shifting

framework

In a non-mixed motive case such as this, a California

wrongful termination claim in violation of public policy is

analyzed under the three-prong burden-shifting framework

from McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973). See Diego v. Pilgrim United Church of Christ,

231 Cal. App. 4th 913, 930 (Ct. App. 2014); see also Earl v.

Nielsen Media Research, Inc., 658 F.3d 1108, 1112, 1118

(9th Cir. 2011)(applying burden-shifting analysis to wrongful

termination claim based on age discrimination in violation of

FEHA and public policy).

Under the first prong of the McDonnell Douglas

framework, Santillan must establish a prima facie case under

either his age discrimination or retaliation theory. See Earl,

658 F.3d at 1112; Stegall v. Citadel Broad Co., 350 F.3d

1061, 1065–66 (9th Cir. 2003). If Santillan establishes a

prima facie case, there is a “presumption of discrimination.” 

Reid v. Google, Inc., 50 Cal. 4th 512, 520 n.2 (2010);

Yanowitz v. L’Oreal USA, Inc., 36 Cal. 4th 1028, 1042

(2005); see also Nidds v. Schindler Elevator Corp., 113 F.3d

912, 917 (9th Cir. 1996).

Then, under the second prong, the burden of production

shifts to USA Waste to rebut the presumption by producing

admissible evidence that it had a legitimate, nondiscriminatory reason for its adverse employment action. See

Guz v. Bechtel Nat’l, Inc., 24 Cal. 4th 317, 355–56 (2000);

see also Earl, 658 F.3d at 1112.

If USA Waste satisfies its burden, then, under the third

prong, Santillan must show that the reason advanced by USA
SANTILLAN V. USA WASTE OF CAL. 13

Waste constitutes mere pretext, or he must produce other

evidence of intentional discrimination. Reid, 50 Cal. 4th at

520 n.2; see also Earl, 658 F.3d at 1112; Winarto v. Toshiba

Am. Elecs. Components, Inc., 274 F.3d 1276, 1284 (9th Cir.

2001).

Finally, “the plaintiff in an employment discrimination

action need produce very little evidence in order to overcome

an employer’s motion for summary judgment.” Diaz v. Eagle

Produce Ltd. P’ship, 521 F.3d 1201, 1207 (9th Cir. 2008)

(quoting Chuang v. Univ. of Cal. Davis, Bd. of Trs., 225 F.3d

1115, 1124 (9th Cir. 2000)).

II. We reverse summary judgment in favor of USA Waste

on Santillan’s age discrimination claim

The district court erred when it evaluated Santillan’s age

discrimination theory in a vacuum by not considering any

events occurring before USA Waste fired Santillan for the

first time on December 5, 2011.7In analyzing Santillan’s

claim based on age discrimination, we will consider the facts

leading up to and including Santillan’s July 24, 2012,

termination.

7

In reviewing a FEHA claim, this court may rely on related federal

cases interpreting the Age Discrimination in Employment Act (“ADEA”),

29 U.S.C. §§ 621 et seq., and Title VII of the Civil Rights Act, 42 U.S.C.

§§ 2000e et seq. See Nidds, 113 F.3d at 916.
14 SANTILLAN V. USA WASTE OF CAL.

A. The district court erred in holding that Santillan

failed to establish a prima facie age discrimination

case

To state a prima facie age discrimination case under

FEHA, Santillan must establish that: (1) he was a member of

a protected class (i.e., 40 years of age or older); (2) he was

performing competently in the position he held; (3) he

suffered an adverse employment action, such as termination;

and (4) “some other circumstance that suggests

discriminatory motive.” See Guz, 24 Cal. 4th at 355.

The district court did not consider whether Santillan

established the first three elements of a prima facie age

discrimination case. It is undisputed that he did, as Santillan:

(1) was a member of a protected class (i.e., 40 years of age or

older) given that he was 53 years old; (2) was performing

competently in the position he had; and (3) suffered an

adverse employment action because USA Waste fired him.

The district court found that Santillan could not establish

the fourth element: some other circumstance that suggests a

discriminatory motive. We disagree. Evaluating the fourth

element “with some flexibility,” Nidds, 113 F.3d at 917, and

construing the facts in the light most favorable to Santillan,

we conclude that he established a prima facie age

discrimination case. Therefore, there is a presumption that

USA Waste unlawfully discriminated against Santillan. See

Reid, 50 Cal. 4th. at 520 n.2; see also Nidds, 113 F.3d at 917.

Two pieces of evidence lead us to this conclusion. First,

Santillan testified that he was one of five older Spanishspeaking employees who were fired or suspended once

Kobzoff was assigned as USA Waste’s Manhattan Beach
SANTILLAN V. USA WASTE OF CAL. 15

route manager.8 See Coleman v. Quaker Oats Co., 232 F.3d

1271, 1281 (9th Cir. 2000) (holding that an employee

established a prima facie age discrimination case because she

was among a group of older employees that were terminated

at a higher rate than younger employees). Santillan could not

remember the other Spanish-speaking employees’ names, but

Kobzoff identified Jesus Zamora and Rojilio Mejia as two

Spanish-speaking employees who were terminated. USA

Waste identified no other supervisees of Kobzoff who were

fired or suspended after Kobzoff became Santillan’s route

manager.

Second, there is a potential thirteen-year age gap between

Santillan and his replacement, Vartanian, who also has

21 fewer years experience as a garbage truck driver.9See

8

 An employee’s “albeit uncorroborated and self-serving” testimony

is sufficient to establish a prima facie workplace discrimination case if a

reasonable jury could infer discrimination fromthe employee’s testimony. 

Nigro v. Sears, Roebuck & Co., 784 F.3d 495, 498 (9th Cir. 2015)

(holding that an employee’s self-serving declaration and deposition

testimony established a prima facie case of unlawful discrimination and

created a genuine dispute of material fact whether the employer’s reason

for firing the employee was pretextual). This is because, “[w]hen judging

the evidence at the summary judgment stage, the district court is not to

make credibility determinations or weigh conflicting evidence, and is

required to draw all inferences in a light most favorable to the nonmoving

party.” Musick v. Burke, 913 F.2d 1390, 1394 (9th Cir. 1990); see also

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (“The evidence

of the non-movant is to be believed, and all justifiable inferences are to be

drawn in his favor.”).

9 USA Waste’s human resources employee Maria Diaz submitted a

declaration in which she provided Santillan’s and Vartanian’s personal

information obtained through USA Waste’s computerized human

resources records. Diaz provided detailed information about Santillan,

such as his employment start date, pay rate, and home address. In
16 SANTILLAN V. USA WASTE OF CAL.

Schechner v. KPIX-TV, 686 F.3d 1018, 1023 (9th Cir. 2012)

(holding that an employee can establish a prima facie age

discrimination case with evidence that his or her replacement

was substantially younger with equal or inferior

qualifications); see also France v. Johnson, 795 F.3d 1170,

1174 (9th Cir. 2015) (age difference of ten years or more

between a plaintiff and his or her replacement is

presumptivelysubstantial); cf. Douglas v. Anderson, 656 F.2d

528, 530, 533 (9th Cir. 1981) (replacing a 54-year-old

bookstore manager with someone five years younger was

sufficient to establish a prima facie case of age

discrimination).

For the two reasons discussed above, the district court

overlooked “the flexibility these cases require and erred in

concluding that” Santillan failed to establish a prima facie

age discrimination case. Nidds, 113 F.3d at 917. Because

Santillan has established a prima facie age discrimination

case, there is “a presumption that [USA Waste] unlawfully

discriminated against [him].” Id. (citation omitted); see also

Reid, 50 Cal. 4th at 520 n.2. Therefore, the burden shifts to

USA Waste to rebut this presumption.

contrast, Diaz limited her description of Vartanian to the fact that he was

“over forty years old” and had worked as a residential garbage truck driver

for eleven years. That Diaz was aware of Vartanian’s age but chose not

to disclose more detail supports the inference that there exists a potentially

significant age gap between Santillan and Vartanian.
SANTILLAN V. USA WASTE OF CAL. 17

B. USA Waste failed to rebut the presumption of

unlawful discrimination because it did not offer a

legitimate reason for firing Santillan

Under McDonnell Douglas’s second prong, USA Waste

bore the burden to produce admissible evidence of a

legitimate, non-discriminatory reason for firing Santillan. 

Earl, 658 F.3d at 1112. USA Waste’s only proffered reason

for firing Santillan in July 2012 was that his “reinstatement

was contingent, in part, upon providing proof of [his] legal

right to work in the United States within three days of hire, as

required by the Immigration Control and Reform Act of 1986,

[sic] [and] [the] Settlement Agreement.”

However, USA Waste cannot rely on the IRCA or the

Settlement Agreement to establish that it is entitled to

summary judgment as a matter of law because, as explained

below: (1) the IRCA exempts Santillan from the proof of

employment eligibility that USA Waste demanded; and

(2) making Santillan’s reinstatement contingent upon such

proof would violate California public policy.

1. The IRCA does not require proof of

employment eligibility from Santillan

The IRCA requires employers review certain documents

at the hiring stage to confirm that new employees hired after

November 6, 1986, are authorized to work in the United

States. See 8 U.S.C. § 1324a(a)(1)–(4). As part of this

process, employers review certain documents specified by

statute to attest to the new employee’s employment eligibility

on a Form I-9. See id. at § 1324a(b); 8 C.F.R.

§ 274a.2(b)(1)(i). An employer may not seek “more or

different documents than are required under [the IRCA] or
18 SANTILLAN V. USA WASTE OF CAL.

refus[e] to honor documents tendered that on their face

reasonably appear to be genuine,” as doing so is an “unfair

immigration-related employment practice.” 8 U.S.C.

§ 1324b(a)(6); see also Rivera v. NIBCO, Inc., 364 F.3d

1057, 1073 (9th Cir. 2004).

In contrast to the IRCA’s mandate with respect to new

employees, two different IRCA regulations exempt Santillan

from providing the employment eligibility documents

demanded byUSA Waste. First, the IRCA exempts Santillan

from having to provide proof of employment eligibility

because he was “continuing in his . . . employment [after

being] reinstated after disciplinary suspension for wrongful

termination . . . resolved through reinstatement or

settlement.” 8 C.F.R. § 274a.2(b)(1)(viii)(A)(5).10

10 The IRCA exemption provides in relevant part:

(viii) An employee will not be deemed to have hired an

individual for employment if the individual is

continuing in his or her employment and has a

reasonable expectation of employment at all times.

(A) An individual is continuing in his or her

employment in one of the following situations:

. . .

(5) An individual is reinstated after disciplinary

suspension for wrongful termination, found unjustified

by any court, arbitrator, or administrative body, or

otherwise resolved through reinstatement or

settlement[.]”

8 C.F.R. § 274a.2(b)(1)(viii)(A)(5) (emphasis added).
SANTILLAN V. USA WASTE OF CAL. 19

Second, a different IRCA “grandfather” provision

exempts employees hired before November 7, 1986, from the

employment eligibility verification requirements applicable

at the hiring stage. Maka v. I.N.S., 904 F.2d 1351, 1360 (9th

Cir. 1990); see also 8 U.S.C. § 1324a(a)(4); 8 C.F.R.

§ 274a.7(a)(1). USA Waste hired Santillan in 1979, and even

though he was fired in 2011, his reinstatement thereafter

qualified him as a continuing employee, rather than a new

employee. See 8 C.F.R. § 274a.2(b)(1)(viii)(A)(5). Thus,

Santillan is exempt from the IRCA employment eligibility

verification requirement under this IRCA provision as well.

USA Waste cites no authority to the contrary. Instead, it

argues that “the law” required Santillan to provide in three

days the employment eligibility documents that USA Waste

demanded. But that is not what the law required, and an

employer’s incorrect view of the law is not a legitimate

reason for firing an employee.

2. USA Waste could not make Santillan’s

reinstatement contingent on verification of his

immigration status because doing so would

violate California public policy

USA Waste alternatively argues that firing Santillan

within three days of his reinstatement was permitted by the

Settlement Agreement provision that required that he pass “eVerify.” However, a contractual provision that contravenes

public policy, as expressed in a statute or implied from its

language, is “either void or unenforceable.” Akopyan v. Wells

Fargo Home Mortg., Inc., 215 Cal. App. 4th 120, 135–36 (Ct.

App. 2013). USA Waste’s interpretation of the Settlement

Agreement would violate the public policy expressed in
20 SANTILLAN V. USA WASTE OF CAL.

several California statutes. Therefore, the e-Verify provision

in the Settlement Agreement was unenforceable.

California provides that “[a]ll protections, rights, and

remedies available under state law, except any reinstatement

remedy prohibited by federal law,11are available to all

individuals regardless of immigration status who have

applied for employment, or who are or who have been

employed, in this state.” Cal. Lab. Code § 1171.5(a)

(emphasis added);12see also Incalza v. Fendi N. Am., Inc.,

479 F.3d 1005, 1009 (9th Cir. 2007); Salas v. Sierra Chem.

Co., 59 Cal. 4th 407, 425–26 (2014).

California “statutes leave no room for doubt about this

state’s public policy with regard to the irrelevance of

immigration status in enforcement of state labor,

employment, civil rights, and employee housing laws.” 

Hernandez v. Paicius, 109 Cal. App. 4th 452, 460 (Ct. App.

2003), disapproved of on other grounds by People v.

Freeman, 47 Cal. 4th 993 (2010). Therefore, under

California public policy, USA Waste could not make

Santillan’s reinstatement remedycontingent upon verification

of his immigration status. See Akopyan, 215 Cal. App. 4th at

135–36 (disregarding an express contract term that was

contrary to public policy).

11 As discussed supra Part II.B.1., Santillan’s reinstatement remedy

is not prohibited by federal law because it was the result of the Settlement

Agreement. See 8 C.F.R. § 274a.2(b)(1)(viii)(A)(5).

12 See also Cal. Gov’t Code § 7285 (same); Cal. Civ. Code § 3339(b)

(“[N]o inquiry shall be permitted into a person’s immigration status except

where the person seeking to make this inquiry has shown by clear and

convincing evidence that this inquiry is necessary in order to comply with

federal immigration law.”).
SANTILLAN V. USA WASTE OF CAL. 21

C. USA Waste failed to meet its burden as to

Santillan’s claim based on age discrimination

Because neither the IRCA nor the Settlement Agreement

justified firing Santillan, USA Waste failed to meet its burden

to show it had a legitimate, nondiscriminatory reason for

firing Santillan in July 2012. We therefore REVERSE the

district court’s grant of summary judgment on Santillan’s

wrongful termination claim arising from age discrimination.

III. We reverse summary judgment in favor of USA

Waste on Santillan’s retaliation claim

Santillan’s alternative theoryfor his wrongful termination

claim is that USA Waste fired him in July 2012, in retaliation

for having an attorney represent him during the Settlement

Agreement negotiations with USA Waste. California

retaliation claims follow the same McDonnell Douglas

burden-shifting framework as age discrimination claims.

Yanowitz, 36 Cal. 4th at 1042; Diego, 231 Cal. App. 4th at

930.

A. Santillan established a prima facie retaliation case

and a presumption of unlawful retaliation

Santillan can establish a prima facie case of retaliatory

wrongful termination in violation of public policybyshowing

that: (1) having an attorney represent him during the

Settlement Agreement negotiations with USA Waste is

activity protected by California public policy; and (2) there

was a nexus between the public policy and his termination. 

See Dep’t of Fair Emp’t & Hous. v. Lucent Techs., Inc.,

642 F.3d 728, 749 (9th Cir. 2011). As with the age

discrimination claim, if Santillan establishes a prima facie
22 SANTILLAN V. USA WASTE OF CAL.

retaliation case, there is a presumption that USA Waste

unlawfully retaliated against him. See Reid, 50 Cal. 4th at

520 n.2.

1. Santillan’s use of an attorney is activity

protected byCalifornia public policy

The district court concluded that Santillan did not engage

in protected activity when he used an attorney to negotiate his

reinstatement, reasoning that California public policy

recognizes a right to an attorney only in the collective

bargaining context. This conclusion is incorrect. For

decades, California courts have recognized a wrongful

termination claim based on the public policy reflected in

California Labor Code Section 92313 where an employer

retaliates against an employee who has “designated an

attorney to represent [him] for the purpose of negotiating the

terms and conditions of employment.” Montalvo v. Zamora,

7 Cal. App. 3d 69, 75 (Ct. App. 1970) (recognizing wrongful

termination where an employer fired workers shortly after

their attorney sent a letter demanding a minimum wage). 

California courts have rejected the argument that such a claim

“applies only to collective bargaining.” Gelini v. Tishgart,

77 Cal. App. 4th 219, 223 (Ct. App. 1999). Because

13

“[T]he public policy of this State is declared as follows: 

Negotiation of terms and conditions of labor should result from voluntary

agreement between employer and employees. . . . Therefore it is

necessary that the individual workman have full freedom of association,

self-organization, and designation of representatives of his own choosing,

to negotiate the terms and conditions of his employment, and that he shall

be free from the interference, restraint, or coercion of employers of labor,

or their agents, in the designation of such representatives or in selforganization or in other concerted activities for the purpose of . . . other

mutual aid or protection.” Cal. Lab. Code § 923 (emphasis added).
SANTILLAN V. USA WASTE OF CAL. 23

California public policy protects Santillan’s right to

representation by an attorney to negotiate the terms and

conditions of employment, he engaged in protected activity

when he was represented by an attorney during the Settlement

Agreement negotiations.

2. USA Waste fired Santillan because he was

represented by his attorney at the Settlement

Agreement negotiations

Santillan also established a nexus between his termination

in July 2012, and his protected activity because USA Waste

fired him roughly two months after an attorney represented

him during the Settlement Agreement negotiations with USA

Waste. “The causal link between a protected activity and the

alleged retaliatory action ‘can be inferred from timing alone’

when there is a close proximity between the two.” Thomas v.

City of Beaverton, 379 F.3d 802, 812 (9th Cir. 2004); see also

Nidds, 113 F.3d at 919 (holding that a prima facie case was

established where employee’s “layoff occurred only four

months after” he first engaged in protected activity by filing

a complaint and “only one month after he filed his second

complaint”); Flait v. N. Am. Watch Corp., 3 Cal. App. 4th

467, 478 (Ct. App. 1992) (finding nexus established where

employee “was terminated only a few months after” he

engaged in protected activity).

We hold that Santillan established a prima facie

retaliation case, which in turn gives rise to a presumption of

unlawful retaliation.
24 SANTILLAN V. USA WASTE OF CAL.

B. The district court erred in holding that USA Waste

provided a legitimate reason for firing Santillan

As discussed supra in Part II.B., USA Waste cannot rebut

the presumption that it retaliated against Santillan by relying

on the IRCA’s employment eligibility verification

requirements for new employees or the Settlement Agreement

as a legitimate reason for firing Santillan. These reasons for

firing Santillan are not legitimate because (1) the IRCA

exempts Santillan from these requirements since he was

continuing his employment with USA Waste because he was

reinstated as a result of a settlement, and (2) USA Waste

could not make Santillan’s reinstatement contingent upon

verification of his immigration status because doing so would

violate California public policy. See discussion supra Part

II.B.

C. USA Waste failed to meet its burden as to

Santillan’s claim based on retaliation

discrimination

For the foregoing reasons, we REVERSE the district

court’s grant of summary judgment in favor of USA Waste on

Santillan’s wrongful termination claim based on retaliation.

IV. The district court did not abuse its discretion by

denying Santillan’s request for leave to amend the

complaint

At the summary judgment hearing, Santillan’s attorney

orally requested leave to amend the complaint to add a breach

of contract claim.
SANTILLAN V. USA WASTE OF CAL. 25

Santillan failed to show that he was diligent in seeking to

amend the complaint, as his request for leave to amend came

eight months after the deadline for making such a request. 

See Johnson v. Mammoth Recreations, Inc., 975 F.2d 604,

609 (9th Cir. 1992) (“If [the moving] party was not diligent,

the inquiry should end.”). Morever, Santillan failed to show

good cause for modifying the previously issued scheduling

order. See Fed. R. Civ. P. 16(b)(4) (“A schedule may be

modified only for good cause and with the judge’s consent.”).

We therefore conclude that the district court did not abuse

its discretion by denying Santillan’s request for leave to

amend the complaint.

CONCLUSIONS

In sum, we REVERSE the district court’s grant of

summary judgment in favor of USA Waste on Santillan’s

wrongful termination claim based on age discrimination and

retaliation and REMAND for further proceedings consistent

with this opinion.14

We AFFIRM the district court’s denial of Santillan’s

request for leave to amend the complaint.

14 We leave to the district court to determine on remand whether

triable issues of fact remain that would preclude a grant of summary

judgment in favor of Santillan. See Albino, 747 F.3d at 1176–77

(reversing summary judgment for defendant and remanding with

instructions to enter summary judgmentfor plaintiff); Portsmouth Square,

Inc. v. S’holders Protective Comm., 770 F.2d 866, 869 (9th Cir. 1985);

Cool Fuel, Inc. v. Connett, 685 F.2d 309, 311 (9th Cir. 1982); see also

Fed. R. Civ. P. 56(f).
26 SANTILLAN V. USA WASTE OF CAL.

Costs shall be taxed against Defendant-Appellee USA

Waste of California, Inc.

REVERSED IN PART, AFFIRMED IN PART, and

REMANDED.