United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

DERRICK ROSS,

Plaintiff,

v.

INDEPENDENT LIVING

RESOURCE OF CONTRA COSTA

COUNTY,

Defendant.

NO. C08-00854 TEH

ORDER GRANTING IN PART

AND DENYING IN PART

DEFENDANT’S MOTION FOR

SUMMARY JUDGMENT

This matter came before the court on July 19, 2010, on the motion for summary

judgment filed by Defendant Independent Living Resource of Contra Costa County (“ILR”). 

For the reasons set forth below, ILR’s motion is GRANTED IN PART and DENIED IN

PART.

FACTUAL BACKGROUND

Plaintiff Derrick Ross (“Ross”) was hired in May 2007 to work as a transition services

coordinator in the Fairfield office of ILR, a California corporation that provides counseling

services, education, and housing assistance for individuals with disabilities. He was

terminated on October 3, 2007, by ILR’s acting executive director, Eli Gelardin, purportedly

for budgetary reasons. Only days earlier, ILR had received a barrage of negative emails

following media reports that a local recreational facility was closing in response to an

Americans with Disabilities Act (“ADA”) accessibility lawsuit brought by Ross. In a Third

Amended Complaint (“TAC”) filed on April 6, 2010, Ross alleges that he was terminated in

response to the lawsuit, in violation of the anti-retaliation provision of the ADA. He also

alleges that his termination was contrary to section 1101 of the California Labor Code, which

Case 3:08-cv-00854-TEH Document 112 Filed 07/21/10 Page 1 of 16
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

2

bars employers from enforcing a policy that controls the political activities of its employees,

and that he suffered a wrongful termination in violation of public policy. ILR moved for

summary judgment on May 24, 2010; Ross opposed the motion. The factual backdrop to the

motion is as follows.

On November 17, 2006, six months before his employment at ILR began, Ross filed a

lawsuit in federal court against Sacramento Basketball Town, LLC (“Basketball Town”), a

sports facility in Rancho Cordova, California, for the denial of accessible facilities to him

and other disabled patrons. Ross, who is quadriplegic and requires the use of a wheelchair,

brought that action after he was unable to accompany his nephew and wife to a birthday

party held on Basketball Town’s mezzanine level, which was accessible only by stairs. He

sought damages and an injunction directing Basketball Town to modify its facilities to

provide equal access to individuals with disabilities.

Ross began working with ILR as a volunteer, and was hired for a paid position

starting May 14, 2007. As a transition services coordinator, Ross obtained certification to

provide Social Security benefits counseling to ILR clients under the federal Work Incentives

Planning and Assistance program. His immediate supervisor, Susan Rotchy, thought he “had

great potential.” Rotchy Depo. at 44:7-8.

On June 18, 2007, Gelardin was hired as ILR’s deputy director for independent living. 

ILR’s executive director at the time was Brian Balch, who – over the course of that summer –

gradually acknowledged serious budget issues plaguing the agency. Balch told Gelardin in

July that the state Legislature’s budget impasse and a delay in federal funding from the U.S.

Department of Rehabilitation could affect ILR’s budget; however, those issues never

appeared in a draft financial statement Balch submitted to ILR’s board of directors at a July

26, 2007 meeting. The following month, Balch revealed that ILR was facing a budget

shortfall of $72,000. Balch was terminated for mismanagement of the company on

September 7, 2007, and Gelardin became ILR’s acting executive director on September 10.

Upon taking over the reins of the agency, Gelardin discovered that the deficit he had

inherited was far greater than what Balch had projected. Gelardin concluded, after reviewing

Case 3:08-cv-00854-TEH Document 112 Filed 07/21/10 Page 2 of 16
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1

 ILR objects that Ross’s own deposition testimony is inadmissible in this context, “as

the deponent is the party offering the deposition.” Def.’s Objs. to Pl.’s Evidence (Doc. 100)

at 1 (citing Fed. R. Civ. P. 32). ILR’s objection is unfounded. Evidence offered in “party’s

own sworn deposition testimony and declaration in opposition to the motion for summary

judgment” may be sufficient to generate a genuine issue of material fact and therefore

warrant denial of the motion. Foster v. Arcata Associates, Inc., 772 F.2d 1453, 1461 (9th

Cir. 1985). Rule 56 clearly allows the Court to rely on “discovery . . . materials” and

“affidavits” in ruling on summary judgment. Fed. R. Civ. P. 56(c)(2). ILR’s remaining

evidentiary objections are denied as moot, as the Court did not rely on the evidence to which

the objections were lodged.

3

data from Balch’s computer, that the shortfall could reach as high as $140,000. Balch had

intended to fill the gap with fundraising proceeds that Gelardin thought “were unlikely to

materialize.” Gelardin Decl. ¶ 9. According to Gelardin, the board of directors held an

emergency meeting on September 10, in which it discussed ILR’s dire financial situation and

agreed that immediate layoffs were necessary to reduce expenses. Ross questions whether

such a meeting occurred, however: no minutes for that meeting have been produced, board

president Susan Armstrong did not recall the meeting, and Gelardin did not need board

approval before conducting layoffs.

It is undisputed that, in addition to Balch, three other employees were laid off between

September 7 and 20. Ross believed his job to be safe, however. He testified in deposition

that Gelardin had assured him, during a staff meeting in September, that “everyone’s job is

secure. Your job is secure.” Ross Depo. at 125:16-18.1

At a board of directors meeting held on September 27, 2007, ILR employee Helen

Omictin gave a report on the financial status of the agency. Although a budget with

$140,000 of general funds had been projected as of June 30, 2007, the agency was scheduled

to receive only $32,371.31 in general funds, a shortfall of nearly $108,000. Omictin

projected that the agency would save nearly that amount – $106,000 – with deductions and

layoffs already undertaken in the previous month.

Two days later, on September 29, 2007, Basketball Town announced publicly that it

would be closing due to the expenses associated with defending against Ross’s lawsuit and

making the necessary improvements to their facility. The closure received considerable

attention in the local media – including newspapers, television, and the Internet – and

Case 3:08-cv-00854-TEH Document 112 Filed 07/21/10 Page 3 of 16
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

4

sparked angry responses. The ILR website listed Ross as an employee at that time, and his

affiliation with ILR was discovered and posted on an Internet forum that encouraged people

to email ILR regarding Ross’s participation in the lawsuit. 

At the same time, Heather Agdeppa, the ILR employee responsible for checking the

“info” email address posted on the agency’s website, received a number of emails she

characterized as “hate mail” listing Ross’s name in the subject line. Agdeppa Depo. at 9:22-

24. She read a sampling of the emails, which complained about Ross’s lawsuit against

Basketball Town; although similar messages arrived over the course of several days,

Agdeppa only read the first few. After confirming on the Internet that the Derrick Ross

described in the emails was the same person employed by ILR, she shared the emails with

Gelardin, who ran his own online searches and learned – according to Agdeppa – that Ross

had filed other ADA lawsuits, as well. Gelardin acknowledged reading at least one of those

email messages, which he characterized as exhibiting “frustration about the lawsuit” brought

by Ross. Gelardin Depo. at 98:2-13. Gelardin was “surprised” and “even upset” by the

email and the “bad publicity” that resulted from Basketball Town’s closure. Id. at 85:2-86:8. 

Ross’s lawsuit represented “just another issue that . . . stressed out an already frail agency.” 

Id. at 86:2-5

Gelardin discussed the publicity generated by the lawsuit with other colleagues. Dan

Clark, a resource specialist with the U.S. Department of Rehabilitation who worked closely

with ILR, recalled that he and Gelardin briefly discussed a story in the Sacramento Bee about

the Basketball Town lawsuit. Gelardin acknowledged having seen the article and recognized

the publicity from the lawsuit as something that could affect ILR. However, Gelardin did not

indicate to Clark whether or not he supported the lawsuit. Gelardin also asked Susan Rotchy

whether she had heard any of the publicity surrounding the Basketball Town lawsuit. That

same day, Gelardin told Rotchy that ILR was “just barely staying afloat.” Rotchy Depo. at

42:21-43:1.

On October 3, 2007, Rotchy was attending an event out of the office when she

received a call from Gelardin asking her to meet him at the Fairfield office because he “had

Case 3:08-cv-00854-TEH Document 112 Filed 07/21/10 Page 4 of 16
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

5

to make a management decision, and [Rotchy] needed to be there.” Id. at 42:3-4. She met

privately with Gelardin upon returning to the office, at which time he told her that “he would

be letting Derrick go.” Id. at 43:16-19. According to Rotchy, Gelardin knew that she “was

pretty upset,” because she “really believe[d] that Derrick had great potential”; however, she

also realized that Ross “was the last one hired.” Id. at 43:24-44:13. Ross was called into the

meeting around noon, at which time Gelardin informed him that he would be terminated

effective immediately due to budget problems. 

Before terminating Ross, Gelardin instructed Agdeppa to cut his check and

acknowledged, when she asked, that Ross was being let go. Agdeppa recalls that Gelardin

told her both that “there was just no way that we could have somebody employed that[]

makes the organization look bad,” and also that he was terminated “due to budget cuts.” 

Agdeppa Depo. at 16:23-17:21. She understood that “nobody else was to know . . . the

Basketball Town issues and the other lawsuit stuff.” Id. 

Ross’s employee termination report attributes his job loss to “current fiscal

constraints” and characterizes it as a “company layoff.” Ross was one of four employees in

the Fairfield office, a satellite to the main ILR office in Concord, California. According to

Gelardin, Ross was laid off because the other three Fairfield employees – including the office

administrator and Rotchy, his supervisor – were more essential and carried job duties that

Ross could not assume.

At his deposition, Gelardin could not identify anyone else who knew of his plans to

terminate Ross prior to October 3, 2007. Armstrong, the president of ILR’s board of

directors, did not recall ever having been told who would be laid off, or when. Gelardin did

not need the approval of ILR’s board to make personnel decisions, including layoffs.

Four members of ILR’s management team – including Rotchy – received significant

raises effective October 1, 2007, two days prior to Ross’s termination. Gelardin explained

that he gave the raises in light of the fact that “people were jumping ship,” and he needed “to

have a core team restructured” to be able to address the agency’s problems. Gelardin Depo.

at 126:5-9. Between Ross’s last day of work and the end of 2007, ILR hired four new

Case 3:08-cv-00854-TEH Document 112 Filed 07/21/10 Page 5 of 16
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

6

employees. With weeks of Ross’s departure, ILR also laid off Agdeppa, who worked out of

the Fairfield office; two other Fairfield employees were laid off in early 2008, after being

told that ILR did not have the funds to pay their salaries. Rotchy, the last employee in the

Fairfield office, was given the option of moving to the main office in Concord or leaving the

agency; she chose to leave ILR.

LEGAL STANDARD

Summary judgment is appropriate when there is no genuine dispute as to material

facts and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). 

Material facts are those that may affect the outcome of the case. Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is “genuine” if there is

sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id. The

Court may not weigh the evidence and must view the evidence in the light most favorable to

the nonmoving party. Id. at 255. The Court’s inquiry is “whether the evidence presents a

sufficient disagreement to require submission to a jury or whether it is so one-sided that one

party must prevail as a matter of law.” Id. at 251-52.

A party seeking summary judgment bears the initial burden of informing the court of

the basis for its motion, and of identifying those portions of the pleadings and discovery

responses that “demonstrate the absence of a genuine issue of material fact.” Celotex Corp.

v. Catrett, 477 U.S. 317, 323 (1986). Where the moving party will have the burden of proof

at trial, it must “affirmatively demonstrate that no reasonable trier of fact could find other

than for the moving party.” Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir.

2007). However, on an issue for which its opponent will have the burden of proof at trial, the

moving party can prevail merely by “pointing out . . . that there is an absence of evidence to

support the nonmoving party’s case.” Celotex, 477 U.S. at 325. If the moving party meets

its initial burden, the opposing party must then “set out specific facts showing a genuine

issue for trial” to defeat the motion. Fed. R. Civ. P. 56(e)(2); Anderson, 477 U.S. at 256.

Case 3:08-cv-00854-TEH Document 112 Filed 07/21/10 Page 6 of 16
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

7

DISCUSSION

ILR seeks summary judgment on all three claims in Ross’s TAC: (1) retaliation under

the ADA, (2) violation of California Labor Code section 1101, and (3) wrongful termination. 

ILR also asks the Court to conclude that attorneys’ fees are unavailable under the second and

third causes of action.

I. ADA Retaliation Claim

Ross brings his first cause of action under section 503(a) of the ADA, which

proscribes retaliation against any individual for exercising rights protected by the statute:

No person shall discriminate against any individual because such

individual has opposed any act or practice made unlawful by this

Act or because such individual made a charge, testified, assisted,

or participated in any manner in an investigation, proceeding, or

hearing under this Act.

42 U.S.C. § 12203(a). Ross claims he was terminated because of the negative publicity that

threatened ILR once Basketball Town had announced its closure, which constitutes

discrimination based on his opposition to “an act or practice made unlawful by” the ADA. 

ILR responds that the lawsuit played no role in the decision to terminate Ross, which was

based exclusively on the need to reduce staff to bridge the agency’s budget gap.

In assessing retaliation claims under the ADA, courts “have almost uniformly adopted

the burden-shifting analysis set forth by the Supreme Court in McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973).” Brown v. City of Tucson,

336 F.3d 1181, 1186 (9th Cir. 2003). That framework, which was “developed to assess

claims brought under . . . Title VII of the Civil Rights Act of 1964,” Reeves v. Sanderson

Plumbing Prods., 530 U.S. 133, 142 (2000), requires a plaintiff to “make out a prima facie

case by showing ‘(1) involvement in a protected activity, (2) an adverse employment action

and (3) a causal link between the two,’” Brown, 336 F.3d at 1187 (quoting Brooks v. City of

San Mateo, 229 F.3d 917, 928 (9th Cir. 2000)). Once a prima facie case is established, the

burden of production shifts to the employer to “‘present legitimate reasons for the adverse

employment action.’” Coons v. Sec’y of the U.S. Dep’t of the Treasury, 383 F.3d 879, 887

Case 3:08-cv-00854-TEH Document 112 Filed 07/21/10 Page 7 of 16
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

8

(9th Cir. 2004) (quoting Brooks, 229 F.3d at 928). “If the employer carries this burden, and

plaintiff demonstrates a genuine issue of material fact as to whether the reason advanced by

the employer was a pretext, then the retaliation case proceeds beyond the summary judgment

stage.” Id.

The McDonnell Douglas test is designed to assure a plaintiff has “his day in court

despite the unavailability of direct evidence.” Trans World Airlines, Inc. v. Thurston, 469

U.S. 111, 121 (1985). It is applied in cases of pretext, where the plaintiff alleges the

defendant has supplied a false, pretextual reason for the employment decision, and

“discrimination was the real reason.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515

(1993). “In pretext cases, ‘the issue is whether either illegal or legal motives, but not both,

were the ‘true’ motives behind the decision.’” Price Waterhouse v. Hopkins, 490 U.S. 228,

260 (1989) (White, J., concurring in the judgment) (quoting NLRB v. Transp. Mgmt. Corp.,

462 U.S. 393, 400, n.5 (1983)). However, ILR characterizes Ross’s action as asserting a

“mixed-motive theory of causation,” under which “both legitimate and illegitimate reasons

motivated the [adverse employment] decision.” Desert Palace, Inc. v. Costa, 539 U.S. 90, 93

(2003). In mixed-motive cases, “there is no one ‘true’ motive behind the decision. Instead,

the decision is a result of multiple factors, at least one of which is legitimate.” Price

Waterhouse, 490 U.S. at 260 (White, J., concurring in the judgment).

The standard to apply for a mixed-motive case under the ADA is uncertain. The

Ninth Circuit has “adopt[ed] the Title VII retaliation framework for ADA retaliation claims.” 

Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1121 (9th Cir. 2000) (en banc), vacated on other

grounds, 535 U.S. 391 (2002). Historically, courts have assessed mixed-motive cases under

Title VII using the framework established in Price Waterhouse v. Hopkins, as endorsed by a

four-justice plurality as well as two justices concurring in the judgment. A plaintiff’s initial

burden under Price Waterhouse is to show that discrimination was a “motivating” or

“substantial” factor in the employer’s action, after which the burden of persuasion shifts to

the employer, who escapes liability only by demonstrating that it would have reached the

same decision even in the absence of the impermissible consideration. Price Waterhouse,

Case 3:08-cv-00854-TEH Document 112 Filed 07/21/10 Page 8 of 16
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

2

 The 1991 Act also affirmed Price Waterhouse’s holding that the employer maintains

the burden of persuasion on the affirmative mixed-motive defense. See 42 U.S.C.

§ 2000e-5(g)(2)(B) (requiring employer to “demonstrate” that it “would have taken the same

action in the absence of the impermissible motivating factor”). However, the employer

cannot avoid all liability by proving it would have made the same decision; under the 1991

Act, such proof only allows the employer to escape monetary damages and a reinstatement

order. Id. § 2000e-5(g)(2)(B)(ii).

9

490 U.S. at 244-45 (plurality opinion); id. at 259 (White, J., concurring in the judgment); id.

at 276 (O’Connor, J., concurring in the judgment). The Court explained that it was not

“shifting burdens” as much as establishing an “affirmative defense: the plaintiff must

persuade the fact finder on one point, and then the employer, if it wishes to prevail, must

persuade it on another.” Id. at 246. Price Waterhouse was a Title VII gender discrimination

case; in the wake of that decision, Congress passed the Civil Rights Act of 1991, which

amended Title VII to explicitly authorize “discrimination claims in which an improper

consideration was ‘a motivating factor’ for an adverse employment decision.” Gross v. FBL

Financial Services, Inc., -- U.S. ----, 129 S. Ct. 2343, 2349 (2009); see 42 U.S.C. §

2000e-2(m) (“[A]n unlawful employment practice is established when the complaining party

demonstrates that race, color, religion, sex, or national origin was a motivating factor for any

employment practice, even though other factors also motivated the practice.”).2

The Supreme Court has “frequently applied its interpretations of Title VII to” another

anti-discrimination statute, the Age Discrimination in Employment Act (“ADEA”). Gross,

129 S. Ct. at 2349 n.2. In Gross, however, the Supreme Court concluded that the Price

Waterhouse framework is inapplicable to claims under the ADEA, id. at 2350, 2352, a ruling

that could be read to apply with equal force to the ADA. “Unlike Title VII,” the Court

observed, “the ADEA’s text does not provide that a plaintiff may establish discrimination by

showing that age was simply a motivating factor.” Id. at 2349. The Court concluded that the

text of the ADEA – which bars an employer from discriminating against any individual

“because of such individual’s age,” 29 U.S.C. § 623(a)(1) – does not authorize a

mixed-motive age discrimination claim. 129 S. Ct. at 2350. Relying on the definition of

“because of” – which means “by reason of” – the Court concluded that age had to be “the

‘reason’ that the employer decided to act.” Id. The Court therefore held that “a plaintiff

Case 3:08-cv-00854-TEH Document 112 Filed 07/21/10 Page 9 of 16
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

10

bringing a disparate-treatment claim pursuant to the ADEA must prove, by a preponderance

of the evidence, that age was the ‘but-for’ cause of the challenged adverse employment

action,” and that the “burden of persuasion does not shift to the employer to show that it

would have taken the action regardless of age, even when a plaintiff has produced some

evidence that age was one motivating factor in that decision.” Id. at 2352.

Although Gross interpreted the ADEA, ILR urges the Court to apply it here and

extend its reasoning to the ADA. The argument for doing so is compelling. The

anti-retaliation provision of the ADA, like the ADEA, bars discrimination “because” an

individual engaged in a protected activity, 42 U.S.C. § 12203(a) – language that weighed

heavily in the Supreme Court’s reasoning. The Court was also swayed by the fact that the

1991 amendments adding the “motivating factor” language to Title VII were not

accompanied by similar changes to the ADEA, “even though [Congress] contemporaneously

amended the ADEA in several ways.” 129 S. Ct. at 2349. Congress likewise failed to amend

the ADA in that manner. Finally, although the Ninth Circuit has not addressed Gross’s

applicability to the ADA, the Seventh Circuit has done so – applying Gross’s reasoning to

conclude that “mixed-motive claims . . . do not entitle a plaintiff to relief” under the ADA. 

Serwatka v. Rockwell Automation, Inc., 591 F.3d 957 (7th Cir. 2010). This Court therefore

concludes that the standard enunciated in Gross – requiring a plaintiff to prove “but-for”

causation in a mixed-motive case under the ADEA in lieu of the Price Waterhouse

framework – must also apply to the ADA.

The question remains, however, whether the Court should analyze Ross’s claim using

the McDonnell Douglas framework for pretext cases, or the approach enunciated under

Gross for mixed motives. The reason articulated for Ross’s termination – budget cuts –

could be regarded as a pretext for his retaliatory discharge, but it could also have been one

factor in a decision that also included legitimate considerations. Only after “all the evidence

has been received” does a court determine which “framework properly applies to the

evidence before it.” Price Waterhouse, 490 U.S. at 278 (O’Connor, J., concurring in the

judgment). This Court need not and will not choose between the two frameworks, however. 

Case 3:08-cv-00854-TEH Document 112 Filed 07/21/10 Page 10 of 16
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

11

Ross retains the ultimate burden of proof under either standard, and has presented sufficient

evidence to have his retaliation claim heard by the jury.

If ILR’s explanation for Ross’s termination is regarded as pretext, the Court engages

in the burden-shifting of McDonnell Douglas. To establish a prima facie case, Ross must

and does show that he engaged in a protected activity – bringing the Basketball Town lawsuit

under the ADA – and that he suffered an adverse employment action, termination. The third

and more difficult component of the prima facie case is a causal link between the two.

As a preliminary matter, the brief lapse of time between when news first broke of

Ross’s role in the lawsuit – Saturday, September 29, 2007 – and his termination on

Wednesday, October 3, offers circumstantial evidence of causation. Gelardin, who made the

decision to terminate Ross, acknowledged learning about the lawsuit from the emails sent to

ILR’s general inbox. “Temporal proximity between protected activity and an adverse

employment action can by itself constitute sufficient circumstantial evidence of retaliation in

some cases.” Bell v. Clackamas County, 341 F.3d 858, 866 (9th Cir. 2003) (finding “strong

circumstantial evidence of retaliation” based on supervisors’ “contemporaneous displeasure”

with plaintiff’s protected activity, and temporal proximity between protected activity and

“alleged adverse employment actions”). The temporal proximity “between an employer’s

knowledge of protected activity and an adverse employment action . . . must be ‘very close’”

in order to establish a prima facie case. Clark County Sch. Dist. v. Breeden, 532 U.S. 268,

273 (2001) (internal citation omitted). Here, five days – only three of which were work days

– lapsed between news of Basketball Town’s closure and Ross’s termination, a time period

that is sufficiently short to suggest a causal link.

The evidence of causation goes well beyond timing alone. Gelardin acknowledges

that he was distressed by the news of Ross’s involvement in the lawsuit, and at least three

people – Rotchy, Agdeppa, and Clark – recalled that Gelardin broached the issue with them. 

Agdeppa also testified that, when Gelardin instructed her to cut Ross’s final check, he

suggested that the true reason for Ross’s termination was the fallout from the Basketball

Town case. Finally, the urgency with which Gelardin communicated Ross’s termination –

Case 3:08-cv-00854-TEH Document 112 Filed 07/21/10 Page 11 of 16
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

3

 Although Ross disputes the extent of the budget problems, his evidence does not cast

any doubt as to the existence of a serious budget crisis at ILR.

12

requiring Rotchy to immediately return to the office – is inconsistent with a decision based,

as Gelardin insists, on budget issues that he had been addressing over the prior month.

Ross therefore satisfies his initial burden, and the burden of production shifts to ILR

to show a legitimate reason for the adverse employment action. ILR does so: the budget

problems that plagued the agency at that time are well-documented,3

 and the layoffs that

Gelardin had initiated in September continued through the following year. The remaining

employees in the Fairfield office were laid off within weeks or months of Ross’s termination,

and Gelardin provided a plausible explanation as to why Ross was the first of those

employees to go.

The burden therefore shifts back to Ross, who seeks to satisfy his ultimate burden of

persuasion by offering evidence rebutting Gelardin’s assertion that he was laid off for

budgetary reasons. Only one week before Ross’s termination, a presentation at the board of

directors’ meeting suggested that the budget shortfall had already been filled through layoffs

and other cutbacks. Before news of the Basketball Town lawsuit had broken but after the

budget crisis had been discovered, Gelardin told Ross that his job was secure despite the

budget problems. Finally, although the layoffs did continue even after Ross, ILR also made

new hires and offered significant raises to its core management team.

Ross therefore raises a material question of fact as to the true reason for his

termination, which must go to the jury. Since Gelardin made personnel decisions on his own,

his representation that he terminated Ross based only on the budget is subject to the jury’s

assessment of his credibility. Although it is clear that the agency’s budget problems could

have justified Ross’s termination, Ross is entitled to convince the jury that the budget was

not in fact the basis for Gelardin’s decision. Ross’s evidence is certainly sufficient to cast

that explanation into doubt and allow a jury to rule that it was only pretextual.

The alternative analysis proposed by ILR would apply if this case is regarded as one

of mixed motives: i.e. that budgetary constraints and Ross’s involvement in the lawsuit both

Case 3:08-cv-00854-TEH Document 112 Filed 07/21/10 Page 12 of 16
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

13

played a role in the adverse employment decision. In that case, the burden of persuasion

would not shift, and Ross would have to “prove, by a preponderance of the evidence, that

[his protected activity] was the ‘but-for’ cause of the challenged adverse employment

action.” Gross, 129 S. Ct. at 2352. “In determining whether a particular factor was a but-for

cause of a given event, we begin by assuming that that factor was present at the time of the

event, and then ask whether, even if that factor had been absent, the event nevertheless would

have transpired in the same way.” Price Waterhouse, 490 U.S. at 240 (plurality opinion). In

other words, Ross must show that, in the absence of his prosecution of the Basketball Town

lawsuit, he would not have been terminated at that time.

Again, Ross has presented sufficient evidence to have this question presented to the

jury. The cumulative evidence, as discussed above, is sufficient to suggest that Gelardin may

have terminated Ross because of his involvement in the suit, and that absent Ross’s

prosecution of the Basketball Town case, he would not have lost his job on October 3, 2007. 

It is up to the jury to decide whether they believe Gelardin’s explanation or are swayed by

Ross’s evidence.

Summary judgment is therefore DENIED as to Ross’s ADA retaliation claim.

II. California Labor Code Section 1101

Ross’s second cause of action is for violation of section 1101 of the California Labor

Code, which provides that “[n]o employer shall make, adopt, or enforce any rule, regulation,

or policy . . . [c]ontrolling or directing, or tending to control or direct the political activities

or affiliations of employees.” ILR argues that Ross cannot prevail on this claim because his

prosecution of the Basketball Town lawsuit was not political, and he cannot show that ILR

has a “rule, regulation, or policy” governing its employees’ political activities. Ross, in

response, represents that the lawsuit was political in nature, and offers evidence that ILR had

a policy not to pursue ADA access claims as an agency.

The California Supreme Court has defined “political activity” in the section 1101

context as extending beyond “partisan activity” to include “the espousal of a candidate or a

Case 3:08-cv-00854-TEH Document 112 Filed 07/21/10 Page 13 of 16
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

14

cause, and some degree of action to promote the acceptance thereof by other persons.” Gay

Law Students Ass’n v. Pac. Tel. & Tel. Co., 24 Cal. 3d 458, 487 (1979) (emphasis in original)

(internal citation omitted). The U.S. Supreme Court has recognized “participation in

litigation” as an activity that can be political in character. Id. (citing NAACP v. Button, 371

U.S. 415, 429 (1963)). In denying ILR’s motion to dismiss on this charge, this Court

recognized that “[l]itigation need not be trail-blazing to be political,” but deferred answering

the question of whether “this particular lawsuit was political.” Order Granting in Part and

Denying in Part Mot. to Dismiss (Doc. 82), at 10. ILR urges the Court to answer this

question now in the negative, because Ross has not adduced any evidence to show that he

attempted to publicize his lawsuit and thereby “promote the acceptance” of his cause of

disability rights by others. Ross characterizes his pursuit of the lawsuit as part of his

longtime activism on behalf of the disabled, and points to the publicity generated by the

lawsuit – which included at least one article in defense of his lawsuit – as evidence that he

did act to promote acceptance of his cause.

Whether or not this lawsuit should be considered political is a difficult question that

this Court need not answer. Even if Ross were able to establish that his pursuit of the

Basketball Town lawsuit was political, he would still have to demonstrate that ILR had a

“rule, regulation, or policy” controlling or directing such activities. The California Supreme

Court, in addressing a challenge to the constitutionality of section 1101, cited the following

definition of “policy”: “‘A settled or definite course or method adopted and followed by a

government, institution, body, or individual.’” Lockheed Aircraft Corp. v. Superior Court,

28 Cal. 2d 481, 485-86 (1946) (quoting Merriam Webster Dictionary (2d. ed.)).

No evidence before this Court shows the existence of such a “rule, regulation, or

policy.” Ross has only shown that ILR’s policy was not to pursue ADA lawsuits as an

agency. Ross recalled, for example, one occasion when Susan Rotchy stated that ILR should

never file an ADA lawsuit. However, what section 1101 requires is a showing that ILR had a

policy that impeded the political expression of its employees. Even if Ross were to succeed

in his claim that his termination was an act of retaliation for his pursuit of the Basketball

Case 3:08-cv-00854-TEH Document 112 Filed 07/21/10 Page 14 of 16
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

4

 At hearing, Ross’s counsel argued that the California Court of Appeal’s decision in

Ali v. L.A. Focus Publication, 112 Cal. App. 4th 1477 (2003), suggests that a policy can be

inferred from one episode. In Ali, however, the defendant acknowledged the existence of the

policy at issue, asserting that “it was entitled to terminate its relationship with Ali for

speaking in a manner that contravened the editorial policy of the paper.” Id. at 1486-87. Ali

therefore does not support Ross’s position.

15

Town suit, that isolated episode would be insufficient to establish that ILR, as a policy,

barred its employees from pursuing ADA claims in court or otherwise engaging in political

activity.4

Since Ross has failed to meet his burden on summary judgment to set out specific

facts showing a genuine issue for trial, summary judgment is GRANTED to ILR as to this

claim.

III. Unlawful Termination in Violation of Public Policy

California law allows a discharged employee to “maintain a tort action and recover

damages traditionally available in such actions” when an employer’s discharge of that

employee “violates fundamental principles of public policy.” Tameny v. Atlantic Richfield

Co., 27 Cal. 3d 167, 170 (1980). Ross’s third claim is for wrongful termination in violation

of public policy, and is premised on the alleged violations of the ADA and section 1101. 

This Court already concluded, on ILR’s motion to dismiss, that a violation of either statute is

sufficient to state a tort claim for wrongful termination under California law.

ILR’s sole basis for summary judgment on this cause of action is its argument that

summary judgment should be granted as to the two underlying statutory claims. Since the

ADA retaliation claim survives, the wrongful termination claim does, as well. Summary

judgment as to this claim is DENIED.

IV. Attorneys’ Fees

The second and third causes of action in the TAC – for violation of section 1101 and

wrongful termination – include a prayer for attorneys’ fees under section 2699(g)(1) of the

California Labor Code, which is part of the California Labor Code Private Attorneys General

Case 3:08-cv-00854-TEH Document 112 Filed 07/21/10 Page 15 of 16
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

16

Act of 2004 (“PAGA”). Section 2699.3 sets forth procedural requirements with which an

aggrieved employee must comply before bringing a civil action under a provision of the

Labor Code that provides for a civil penalty. Ross alleges that he has complied with those

requirements and is pursuing “claims pursuant to California Labor Code Section 2699 et seq.,

including but not limited to claims for attorney fees under Section 2699(g)(1).” TAC ¶ 14(c). 

Section 2699(g)(1) provides that “[a]ny employee who prevails in any action shall be entitled

to an award of reasonable attorney’s fees and costs.” ILR argues that Ross is not entitled to

attorneys’ fees under this statute because he is not prosecuting this action on behalf of other

current or former ILR employees, and because he is not claiming civil penalties under

PAGA.

There is a simpler basis for denying Ross’s prayer for attorneys’ fees under PAGA at

this juncture, however. The labor code provisions that an aggrieved employee can enforce

via the PAGA are listed in section 2699.5; of Ross’s causes of action, only the alleged

violation of section 1101 could be enforced in that manner. Since the Court has granted

summary judgment to ILR as to the section 1101 claim, Ross’s prayer for attorneys’ fees

pursuant to the PAGA must fail, as well. Ross’s counsel conceded this point at hearing.

CONCLUSION

ILR’s motion for summary judgment is GRANTED IN PART and DENIED IN

PART. Summary judgment is granted to ILR as to the second cause of action for violation of

section 1101, and attorneys’ fees pursuant to the PAGA are therefore unavailable. Summary

judgment is denied, however, as to Ross’s first and third causes of action, for retaliation in

violation of the ADA and wrongful termination in violation of public policy.

IT IS SO ORDERED.

Dated: 7/21/10 

THELTON E. HENDERSON, JUDGE

UNITED STATES DISTRICT COURT

Case 3:08-cv-00854-TEH Document 112 Filed 07/21/10 Page 16 of 16