Filed 2/24/23

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF 

CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

SUCHIN I. LIN,

Plaintiff and Appellant,

v.

KAISER FOUNDATION 

HOSPITALS,

Defendant and Respondent.

 B314162

 (Los Angeles County

 Super. Ct. No. 19STCV23260)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Barbara A. Meiers, Judge. Reversed

and remanded.
2

Gusdorff Law and Janet Gusdorff; The Rager Law 

Firm, Jeffrey A. Rager and James Y. Yoon, for Plaintiff and 

Appellant.

Cole Pedroza, Kenneth R. Pedroza and Zena Jacobsen,

for Defendant and Respondent.

____________________________________________

INTRODUCTION

Appellant Suchin Lin appeals from the trial court’s 

grant of summary judgment in favor of her former employer, 

respondent Kaiser Foundation Hospitals (Kaiser). Because

the record discloses triable issues of fact on Lin’s claims, all 

of which relate to disability discrimination, we reverse the 

judgment. 

As part of a round of employee layoffs, Kaiser planned, 

at least tentatively, to terminate Lin before Lin became 

disabled. Kaiser’s plan to terminate Lin before she became 

disabled, by itself, was (of course) not discrimination against 

Lin because of a disability. But Kaiser did not complete its 

layoff plans—or, a reasonable jury could find, make its final 

determination to terminate Lin—until after Lin had become

disabled. On the record here, there was evidence from which

a reasonable jury could conclude that Kaiser’s ultimate

decision to terminate Lin was motivated, at least in 

substantial part, by concerns Kaiser had about Lin’s 

disability. That allows Lin’s complaint to survive summary 

judgment.
3

FACTUAL AND PROCEDURAL BACKGROUND1

A. Lin Receives Positive Performance Ratings

Before Her Disability

In June 1999, Kaiser hired Lin as a data management 

associate. From 1999 to 2016, Lin was on several occasions 

promoted or transferred to a different position, culminating 

in a position as an IT engineer. During this period, Lin’s 

managers evaluated her performance positively. 

In May 2017, Lin was transferred to a position as a 

Software Quality Assurance Associate Engineer in the 

Innovation and Transformation (I&T) department, one of 

eight departments within Kaiser’s Technology Risk 

Organization (TRO). Lin had four teammates in the I&T 

department, each of whom was more experienced than Lin in

quality assurance. Lin and her teammates were directly 

supervised by Sridhar Manne. Manne, in turn, was 

supervised by Douglas Monroe, who reported to I&T 

executive director Wilson Henriquez. 

In March 2018, Manne completed written 2017 

performance evaluations for the I&T department, giving Lin 

and each of her teammates the same overall rating of 

“Successful Performance.” Manne rated Lin’s performance 

as “Excellent” in several subcategories, including those that 

encompassed meeting “timeframes” and operating 

1 Our description of the record construes the facts in the light 

most favorable to Lin, the party opposing summary judgment. 

(See Faust v. California Portland Cement Co. (2007) 150 

Cal.App.4th 864, 877.)
4

“efficiently.” Later in 2018, Manne conducted Lin’s mid-year

evaluation, again rating her performance as successful. 

B. Lin Is Selected, Before She Becomes Disabled, 

for a Reduction in Force (RIF)

In December 2018, Kaiser began to plan to lay off 

certain employees, for economic reasons. Specifically, on 

December 12, 2018, TRO senior director Mark Lopez 

circulated an email stating that “potential reductions” were 

required to meet 2019 budget targets and asking TRO 

directors to select employees to be included on a list for 

layoffs to be completed as part of a “Reduction in Force” or 

“RIF” to help Kaiser meet budgetary goals for 2019.

I&T executive director Henriquez declared that on or 

around December 18, 2018, he made the decision to 

eliminate Lin’s position, explaining: “I selected Lin based on 

discussions I had had earlier with Douglas Monroe and 

Sridhar Manne about Lin’s performance issues in 2018, that 

she was not getting up to speed as quickly as expected and 

was still struggling in performing her duties as a Quality 

Assurance tester.” As discussed further below, however, 

there is at least ambiguity in the record about whether these

conversations actually took place. The contemporaneous 

documentary record does not reflect these concerns about 

Lin’s performance.
5

C. Lin Becomes Disabled and Makes Initial

Requests for Accommodation

On January 7, 2019, Lin fell in her workplace and

suffered an injury to her left shoulder. The same day, a 

doctor issued a work status report placing Lin on modified 

duty through January 11, with restrictions requiring Lin to 

use a sling and to limit use of her left arm. Lin sent the 

work status report to Manne on January 8, and on January 

9 informed Manne that she could not move her left arm “at

all” and that she had an upcoming appointment to be 

evaluated for surgery. 

On January 21, 2019, Lin sent Manne a doctor’s report

placing her on modified duty through February 22, with new 

restrictions limiting use of her left arm and requiring Lin to 

attend medical and physical therapy visits. The next day

(January 22), a workers’ compensation claims examiner 

asked Manne by email whether he would be able to 

accommodate these restrictions. Manne responded: “Yes I 

would be able to accommodate the modified duty. [¶] Suchin

[Lin] is on approved [non-disability-related] time off from 

today thru Feb 12th. [¶] Once she is back, I will be assigning 

her with lighter tasks.” Lin declared that Manne never 

assigned her lighter tasks or discussed the possibility of 

modifying her assignments with her. 
6

D. Lin’s Supervisor Negatively Evaluates Lin’s 

Performance in Connection with the RIF

On January 29, 2019, after Lin had suffered her injury, 

Manne, Lin’s supervisor, discussed Lin’s performance with 

human resources business partner Kimberly West. 

According to West’s handwritten notes from their discussion, 

Manne identified an issue with the quality of Lin’s work, at 

least in part due to Lin’s “slow delivery.” West also noted 

that Lin was on modified duty, and wrote beneath this note: 

“slower typing?” Lin testified at her deposition that her 

injury caused her to type more slowly. 

The same day (January 29, 2019), I&T executive

director Henriquez emailed Manne, asking: “Which [I&T]

team members have a good analytical skill set? Which team

members have a good communication skill set? Which team

members have high technical acumen? Which team

members show good time management and organization? [¶]

It might be easier if you look at the questions above and tell

me how you would rate each member from a 1 to a 4.”

Manne responded with an attachment setting forth the 

requested ratings for Lin and her four teammates in five 

“competencies” (process improvement, analytical skills, 

communication, technical acumen, and organization).

Manne gave Lin an aggregate rating of nine out of 20, while 

giving each of her teammates a higher rating of 16 or above.

Henriquez testified at his deposition regarding his reason for 

requesting this performance information: “It was probably 

requested by me—from me to make sure that I had—that 
7

there was a good handle in terms of the folks in the group 

and to make sure probably to compare and make sure that it

wasn’t an unjust termination—not termination, layoff . . . .”

Similar numerical ratings of employee competencies

were prepared in at least three other TRO departments. 

West declared that these ratings were prepared and 

collected “as part of Human Resources’ due diligence 

processes in connection with the 2019 TRO reduction in 

force.” 

On January 31, 2019, Kaiser circulated an updated 

RIF list, which had been narrowed from 31 to 25 employees

but still included Lin. Comments concerning the six 

employees removed from the list indicated that two were

removed because they had resigned, two because contractors

had been terminated in their stead, one because “contractor 

spend reduced,” and one because “M&A resource.” 

E. Lin’s Supervisor Increases His Criticisms of 

Lin’s Performance

On February 22, 2019, Lin’s modified duty was 

extended by her doctor through March 25, subject to the 

same restrictions limiting use of her left arm and requiring 

her to attend medical and physical therapy visits. On 

February 27, Manne met with Lin to discuss her 

performance. In a February 28 email memorializing the 

discussion, Manne stated that Lin’s “unavailability” had 

occasionally forced her teammates to complete tasks for her 

and that Lin’s “pace of execution needs improvement.” 
8

Manne placed Lin on an “action plan” requiring her, inter 

alia, to “manage [her] tasks within a reasonable time.” 

Manne warned that she may be terminated if she failed to 

show improvement. 

Lin testified at her deposition about this February 

2019 meeting with Manne. She testified that in the course 

of complaining that Lin’s teammates had completed tasks for 

her and that she needed to work at a faster pace, “[Manne]

said, you know, why are you seeing the doctors.” Lin told 

Manne that her injury caused her pain and limited her

ability to type, and that she needed to attend medical and 

physical therapy visits two or three times per week as 

instructed by her doctor. Lin further told Manne that her 

health prevented her from working overtime, and that she 

“need[ed] help.” Nevertheless, Manne pressured her to work 

unpaid overtime off the clock. 

In the wake of this February 2019 meeting, Lin sent 

written complaints to West in human resources that Manne 

had, inter alia, asked her to work off the clock and created a 

hostile environment, causing her such emotional distress

that she had been unable to sleep. At West’s suggestion, Lin 

contacted Kaiser’s employee assistance program to discuss 

her emotional distress, ultimately leading to her referral to a

psychiatrist.

On March 8, 2019, Manne met with Lin to discuss and 

complete her 2018 year-end performance evaluation.

Although Manne again rated Lin’s overall performance as 

successful, he wrote that she was at the “lower end” of
9

successful performance and rated her performance in several 

subcategories as needing improvement. Soon thereafter, Lin 

sent Manne a doctor’s report placing her on medical leave, 

which was later extended through May 19. 

F. Lin’s Termination and Complaint

In March 2019, Kaiser circulated two more drafts of 

the RIF list, which was reduced first from 25 to 20 

employees and finally to 17, still including Lin. On April 16, 

Kaiser provided notice of the RIF to the 16 employees on the

final list other than Lin, who remained on medical leave. On 

April 24, Kaiser notified Lin that her position had been 

eliminated and that her employment would be terminated 

effective June 23.

Within weeks of her termination, Lin filed her 

complaint against Kaiser in this action. Her operative, first 

amended complaint contained the following FEHA causes of 

action: (1) disability discrimination; (2) retaliation for 

requesting disability accommodations and opposing practices

forbidden under FEHA; (3) failure to prevent discrimination 

and retaliation; (4) failure to accommodate a disability; and

(5) failure to engage in an interactive process regarding

disability accommodations. The complaint also contained

causes of action for wrongful termination in violation of 

public policy and intentional infliction of emotional distress

(IIED).
10

G. Kaiser’s Motion for Summary Judgment

In June 2020, Kaiser moved for summary judgment or, 

in the alternative, summary adjudication. Kaiser argued 

that it was entitled to summary adjudication of Lin’s 

disability discrimination and retaliation claims because 

Henriquez had made the decision to eliminate Lin’s position

in the RIF in December 2018, before Lin sustained her 

disability. For the same reasons, Kaiser argued that it was 

entitled to summary adjudication of Lin’s “derivative” claims 

for failure to prevent discrimination and retaliation,

wrongful termination, and IIED. Finally, with respect to 

Lin’s claims for failure to accommodate her disability and to

engage in an interactive process, Kaiser argued the claims 

failed as a matter of law because Kaiser had granted every

accommodation Lin requested, i.e., modified duty (as 

prescribed by her doctors) and medical leave.

Lin opposed the motion. She did not dispute that her

name was selected for the initial RIF list in December 2018. 

But she argued that the evidence showed this “proposed” list 

was “subject to further review,” as reflected in the list’s 

gradual reduction from 31 employees to the 17 who were 

ultimately laid off. She further argued that her ultimate 

termination was a result of Henriquez’s reliance on Manne’s 

post-disability assessment of her, particularly on Manne’s 

January 29, 2019 email to Henriquez rating her performance

much lower than that of her teammates. She argued that 

Manne’s negative ratings were based on her disability and/or 

her requests for accommodations, as evidenced by the
11

disparity in his evaluations of her performance before and 

after these events, and by his criticism of performance issues

“emanating from her disability.” Finally, she argued that 

because Manne never assigned her lighter tasks—as he said 

he would—or discussed other possible accommodations to 

help her overcome her disability-related pace issues, she had 

raised triable issues of material fact on her accommodation 

claims. 

H.The Trial Court’s Hearing and Ruling

In April 2021, the trial court held a hearing on Kaiser’s 

motion for summary judgment. In May 2021, the court 

issued a minute order granting Kaiser’s motion for summary 

judgment in its entirety. The court explained: “[T]he court 

finds that the plaintiff has failed to produce facts, as opposed 

to opinions and speculation, that the defendant terminated 

her employment for any reasons other than those which it 

has articulated relating to budget considerations and [the 

RIF]. The undisputed evidence is . . . that this decision to 

terminate the plaintiff was made before her disability was 

made known to the defendant.” In response to Lin’s 

argument that post-disability discussions of her performance 

influenced Kaiser’s decision to terminate her, the court 

stated, in relevant part: “The record is clear that these postdecision-to-fire- discussions also occurred with regard to all 

of the other employees who were also being let go as a part of 

the same group of ‘firings,’ and . . . simply as a ‘pro forma’

part of [Kaiser’s] ongoing process of internally documenting 
12

and processing [the initial RIF selections].” With respect to 

Lin’s claims for failure to accommodate her disability and to 

engage in an interactive process, the court noted that “it was 

undisputed that all accommodations sought were granted.” 

The court subsequently entered judgment in Kaiser’s 

favor. Lin timely appealed.

DISCUSSION

Lin contends that the trial court erred in granting 

Kaiser summary judgment on all her claims. For the 

reasons discussed below, we agree and reverse the judgment.

A. Standard of Review

“On appeal after a motion for summary judgment has 

been granted, we review the record de novo . . . . [W]e 

determine with respect to each cause of action whether the 

defendant seeking summary judgment has conclusively 

negated a necessary element of the plaintiff’s case, or has 

demonstrated that under no hypothesis is there a material 

issue of fact that requires the process of trial, such that the 

defendant is entitled to judgment as a matter of law.” (Guz 

v. Bechtel National Inc. (2000) 24 Cal.4th 317, 334 (Guz).) 

We view the evidence in the light most favorable to the 

nonmoving party, drawing all reasonable inferences in that 

party’s favor. (Weiss v. People ex rel. Department of

Transportation (2020) 9 Cal.5th 840, 864; see also Code Civ. 

Proc., § 437c, subd. (c).)
13

B. FEHA Disability Discrimination

1. Disability Discrimination Standards

FEHA prohibits an employer from discharging any 

person from employment—or otherwise discriminating 

against the person in terms, conditions, or privileges of 

employment—because of the person’s disability. (Gov. Code, 

§ 12940, subd. (a).) 

Three aspects of FEHA are particularly significant

here. First, in situations where the evidence of disability 

discrimination is circumstantial, “California has adopted the 

three-stage burden-shifting test established by the United 

States Supreme Court for trying claims of discrimination 

. . . based on a theory of disparate treatment.” (Guz, supra,

24 Cal.4th at 354, citing McDonnell Douglas Corp. v. Green

(1973) 411 U.S. 792 (McDonnell Douglas).)2 

The McDonnell Douglas test “places on the plaintiff the 

initial burden to establish a prima facie case of 

discrimination,” requiring evidence that: (1) the plaintiff was 

a member of a protected class; (2) she was performing 

competently in the position she held; (3) she suffered an 

adverse employment action such as termination; and (4)

2 Lin contends that because she produced direct and not 

merely circumstantial evidence of disability discrimination, the

McDonnell Douglas test does not apply, and her burden on 

summary judgment is less onerous. We need not and do not

address this contention, because we conclude that Lin has raised 

triable issues of material fact on her discrimination claim even

under the more burdensome McDonnell Douglas test. 
14

some other circumstance suggests the employer acted on a

discriminatory motive. (Guz, supra, 24 Cal.4th at 354-355.) 

The burden then shifts to the employer to produce 

admissible evidence of one or more legitimate, 

nondiscriminatory reasons for its adverse employment 

action. (Id. at 355-356.) Finally, the burden shifts back to 

the plaintiff “to attack the employer’s proffered reasons as 

pretexts for discrimination, or to offer any other evidence of 

discriminatory motive.” (Id. at 356.) “Invocation of a right

to downsize does not resolve whether the employer had a 

discriminatory motive for cutting back its work force, or 

engaged in intentional discrimination when deciding which 

individual workers to retain and release.” (Id. at 358.) 

Second, it is not ordinarily necessary for a disabled 

employee to show that a disability was the sole reason for a 

termination, or that the termination would not have 

happened but for the disability. Instead, when a plaintiffemployee advances a “mixed motive” theory (i.e., a theory 

that an employer had both legitimate and discriminatory 

motives for a termination), the plaintiff must show only that

her disability was a “substantial motivating factor” in the 

challenged employment action. (Harris v. City of Santa 

Monica (2013) 56 Cal.4th 203, 229-232, 241 (Harris).) 

“[D]iscrimination, though not a ‘but for’ cause of an adverse 

employment action (because the employer can show it would 

have taken the same action in any event), might nonetheless 

be found to be a substantial motivating factor . . . .” (Id. at 
15

226.)3Thus, “[i]f triable issues of material fact exist [as to] 

whether discrimination was a substantial motivating reason 

for the employer’s adverse employment action, even if the 

employer’s professed legitimate reason has not been

disputed, the FEHA claim is not properly resolved on

summary judgment.” (Husman v. Toyota Motor Credit Corp.

(2017) 12 Cal.App.5th 1168, 1186.)

Third, under the so-called “‘cat’s paw’” doctrine, a

plaintiff “need not demonstrate that every individual who

participated in the [challenged employment action] shared 

discriminatory animus in order to defeat a summary 

judgment motion. . . . [S]howing that a significant 

participant in an employment decision exhibited 

discriminatory animus is enough to raise an inference that 

the employment decision itself was discriminatory, even 

absent evidence that others in the process harbored such 

animus.” (DeJung v. Superior Court (2008) 169 Cal.App.4th 

533, 551.) 

3 To be clear, if an employer can persuade the trier of fact

that it would have made the same decision to terminate an 

employee regardless of a discriminatory motive, the employeeplaintiff is not ordinarily entitled to collect monetary damages, 

and is limited to obtaining injunctive and declaratory relief and 

attorneys’ fees. (Harris, supra, 56 Cal.4th at 232-235.) We 

express no opinion as to whether Kaiser can make such a 

showing at trial, or what such a showing would mean for the 

ultimate relief available to Lin in this action.
16

2. Analysis

Applied here, these standards compel reversal of the

trial court’s summary adjudication of Lin’s FEHA disability 

discrimination claim.

There is no serious dispute that Lin met her burden at

the first stage of the McDonnell Douglas test, and that 

Kaiser met its burden at the second stage. Kaiser does not 

contend (and the trial court did not find) that Lin failed to

meet her prima facie burden. Equally, Kaiser is certainly 

correct that its decision to place Lin on the initial RIF list for 

termination in December 2018—before Lin became 

disabled—could not have been unlawful disability 

discrimination or a pretext therefor. 

But Kaiser’s placement of Lin on the December 2018

RIF list is not, by itself, dispositive. Kaiser did not actually 

eliminate Lin’s position, provide final notice of the RIF list, 

and ultimately give Lin notice of termination until April 

2019—months after Kaiser became aware of Lin’s disability. 

If Lin can show by competent evidence that between 

December 2018 and April 2019 disability discrimination 

became at least a substantial motivating factor in Lin’s 

termination, then the fact that she was originally placed on

the list for a layoff is not decisive. The critical question is 

whether the summary judgment record, construed in Lin’s 

favor, rationally supports both of the following inferences: (a) 

Kaiser’s December 2018 selection of Lin for the RIF list was 

tentative, not final; and (b) Kaiser’s ultimate decision to 

keep Lin on the RIF list and to terminate her employment
17

was based, at least in substantial part, on Lin’s disability. 

For the reasons discussed below, we conclude that the record 

rationally supports both of those inferences. That means

Kaiser was not entitled to summary judgment on Lin’s 

FEHA disability discrimination claim. 

a. A jury reasonably could find that 

Lin’s December 2018 selection for the 

RIF was tentative

The record is clear that the December 2018 RIF list 

was not set in stone. Between December 2018 and March 

2019, Kaiser circulated several progressively narrower

drafts of the RIF list. As Kaiser concedes: “There is no 

dispute that the December 18, 2018 RIF list contained 31 

names, and ultimately only 17 employees were laid off in 

April 2019.” Kaiser further concedes that in other 

departments within TRO (which encompassed Lin’s I&T 

department), Kaiser averted layoffs of employees targeted by 

its initial RIF plan “‘because another way was found to cut 

costs,’” such as terminating contractors instead of the 

initially selected employees. In Lin’s own I&T department, 

Kaiser’s documents note that considerable savings were

predicted to be achieved by methods such as “[r]eduction of

Risk Engine support”; “[r]eduction of CEB Insights and 

Cloud Security Alliance”; and “[r]eduction in travel, training

and additional savings.” On this record, drawing all

reasonable inferences in Lin’s favor, a jury rationally could 

find that even after Kaiser selected Lin for the initial RIF 
18

list in December 2018, it could have averted Lin’s 

termination by finding other means to meet I&T’s budget

target.

Even more important, evidence in the record suggests

that after Lin became disabled in January 2019, Kaiser 

considered factors directly related to employee performance 

in deciding whether to maintain employees on the RIF list. 

On January 29, 2019, in connection with his preparation of 

plans for the RIF, I&T executive director Henriquez asked 

Lin’s direct supervisor Manne for detailed ratings of 

employee performance among the members of Lin’s team:

“Which team members have a good analytical skill set?

Which team members have a good communication skill set?

Which team members have high technical acumen? Which

team members show good time management and

organization?” Henriquez admitted at his deposition that in 

2019 he asked for, obtained, and relied on Manne’s opinion 

concerning Lin “in terms of the reduction in 

force.” Moreover, Henriquez testified that his reason for 

seeking this performance information was to “compare” the 

members of the group and to ensure “it wasn’t an unjust 

termination [or layoff].” A reasonable jury could infer from 

Henriquez’s concern about the layoff’s fairness that had 

Manne rated Lin’s performance in a manner suggesting her

layoff would be “unjust,” Henriquez would have sought to 

avert Lin’s layoff, and cost-cut in a different area.

The reasonableness of this inference is further 

supported by ambiguity in the record regarding the reasons 
19

for Lin’s initial selection for the RIF list in December 2018. 

Through a declaration from Henriquez—whom Kaiser

characterizes as “the sole decisionmaker”—Kaiser sought to 

establish that Henriquez selected Lin for the initial RIF list 

in reliance on discussions with Manne and Manne’s 

supervisor Monroe about Lin’s relatively poor performance 

prior to 2019. But Monroe failed to recall these alleged

performance discussions at his deposition, and Kaiser failed 

to produce any deposition testimony or other evidence 

corroborating Henriquez’s declaration that these discussions 

occurred. Kaiser’s failure to produce a firm record 

explaining Lin’s initial selection for the RIF list helps to 

support an inference that when Henriquez solicited and 

received Manne’s evaluation of Lin’s performance on 

January 29, 2019, he was open to removing Lin from the RIF

list on the basis of that information.

In response, Kaiser argues—as the trial court found—

that any efforts it took to assess employee performance after 

December 2018 were entirely “pro forma” and lacked any 

causal relation to Lin’s remaining on the RIF list. Kaiser 

emphasizes that to the extent the record reveals Kaiser’s 

stated reasons for removing 14 employees from the initial

RIF list, such as the termination of contractors instead,

those reasons were unrelated to the employees’ performance. 

Kaiser also cites human resources executive West’s 

declaration that the collection of performance information 

was simply a function of “due diligence,” and Henriquez’s

deposition testimony characterizing his January 2019
20

request for such information from Manne as a mere 

“formality.”

While these facts support inferences in Kaiser’s favor, 

they are not determinative of the issues on this appeal. In 

this posture, we are required to draw all competing

reasonable inferences in Lin’s favor. (See Weiss v. People ex 

rel. Department of Transportation, supra, 9 Cal.5th at 864; 

Code Civ. Proc., § 437c, subd. (c).) A reasonable jury could 

readily conclude that when Kaiser, in 2019, collected 

information about the performance of its employees in 

connection with its RIF plan, Kaiser did so for a reason. It is 

reasonable to infer that Kaiser substantially relied on the 

information about employee performance it collected in 

making decisions about the RIF. As noted, Henriquez—the 

executive director of Lin’s department—specifically testified 

that the reason he collected information in 2019 concerning 

Lin’s performance was to determine whether the layoff 

would be “unjust.” Thus, a jury reasonably could find that 

Kaiser and Henriquez did not simply collect employee 

performance information for (unspecified) “pro forma” or 

“due diligence” reasons, but instead were relying, at least in 

substantial part, on information about Lin’s performance as 

an employee in deciding whether to proceed with Lin’s 

termination. We turn now to the question whether the jury 

could find this decision was substantially motivated by Lin’s 

disability.
21

b. A reasonable jury could find that 

Lin’s termination was substantially 

motivated by her disability

For Lin’s FEHA disability discrimination claim to

survive summary judgment, Lin must show facts from which 

a reasonable jury could conclude that Kaiser’s ultimate 

decision to terminate her employment was motivated in 

substantial part by her disability. (See Harris, supra, 56

Cal.4th at 231-232; Husman v. Toyota Motor Credit Corp., 

supra, 12 Cal.App.5th at 1186.) Here, too, we find that the 

record contains sufficient evidence for Lin to meet her

burden. 

Before Lin sustained her disability, neither Manne nor 

any prior supervisor gave her a negative performance 

evaluation. Throughout Lin’s more than 15 years at Kaiser 

before she joined Manne’s team, her supervisors consistently 

evaluated her performance as successful. Manne, too, gave 

Lin successful performance ratings on her 2017 and midyear 2018 performance evaluations. While there is little 

evidence in the record concerning the performance of Lin’s

teammates, Manne rated each teammate’s performance in 

2017 as successful—the same rating he gave Lin. 

After Lin’s disability, however, Manne judged Lin’s 

performance much more harshly in comparison to that of her 

teammates. On January 29, 2019 (three weeks after 

receiving notice of Lin’s disability), Manne informed 

Henriquez that Lin was by far the lowest performer in the 

I&T department, assigning her an aggregate rating of 9 out 
22

of 20 while rating each of her teammates 16 or above.

Manne went on to provide Lin with increased negative 

feedback when placing her on an action plan in February 

2019 and completing her 2018 year-end performance 

evaluation in March 2019. 

A reasonable jury could find that Manne’s newly 

negative evaluation of Lin’s performance was substantially

motivated by her disability. In the weeks between Lin’s 

injury to her left shoulder on January 7, 2019, and Manne’s 

negative evaluation of Lin to Henriquez on January 29, 

Manne was informed that Lin’s injury limited her use of her 

left arm (which at one point she could not move “at all”), that 

she might need surgery, and that she needed to attend 

regular medical and physical therapy visits. On January 22, 

when confirming that he could accommodate the restrictions

prescribed by Lin’s doctors, Manne expressed the intent to 

assign Lin lighter tasks, supporting a reasonable inference 

that he believed her disability prevented her from handling 

her usual workload. On January 29—the same day Manne

provided his negative evaluation of Lin to Henriquez—he 

complained to human resources executive West about Lin’s 

“slow delivery” and (a jury reasonably could infer) her slow 

typing, which Lin testified was caused by her disability. A 

month later (on February 27), Manne similarly criticized 

Lin’s “pace of execution” and—according to Lin’s testimony, 

which a jury would be entitled to credit—expressly linked 

this complaint to her time spent at medical appointments. 
23

Kaiser does not dispute that a reasonable jury could 

find Manne’s disability-related animus affected his negative 

evaluations of Lin’s performance. Nor does it dispute that 

Manne’s negative evaluations were provided to Henriquez, 

who had decision-making authority over whether Lin would 

be terminated as part of the RIF. Instead, Kaiser disputes

the factual basis for Lin’s theory that Henriquez was 

Manne’s “cat’s paw,” arguing that Lin failed to raise any

triable issue regarding whether Henriquez ever reevaluated

Lin’s initial selection for the RIF. Having rejected that 

argument above, we now conclude that Lin has raised triable 

issues on her cat’s paw theory. In other words, a reasonable 

jury could find that Henriquez relied, at least in substantial 

part, on Manne’s negative performance evaluations and on 

Manne’s disability-related animus in deciding that Lin

would not be removed from the RIF list and her employment 

would be terminated. Thus, a reasonable jury could find

that Lin’s disability was at least a substantial motivating 

factor for her termination. That is a sufficient finding to 

subject Kaiser to liability. (Harris, supra, 56 Cal.4th at 231-

232.)

We therefore reverse the trial court’s summary

adjudication of Lin’s disability discrimination claim.

C. FEHA Retaliation

For similar reasons, we conclude Lin’s claim for FEHA 

retaliation survives summary judgment. FEHA makes it

unlawful for an employer to “retaliate or otherwise 
24

discriminate against a person for requesting accommodation 

[for a disability], regardless of whether the request was 

granted.” (Gov. Code, § 12940, subd. (m)(2), italics added.)

Here, a reasonable jury could find that Kaiser, acting 

on Manne’s retaliatory animus, terminated Lin’s 

employment in substantial part because Manne resented 

Lin’s accommodation requests—even though Kaiser

ultimately granted those requests. Lin first requested 

disability accommodations on January 8, 2019 (the day after 

her injury), and she requested further accommodations—

including regular attendance at medical and physical 

therapy visits—on January 21. Although Kaiser granted

these requests, a jury reasonably could find that Manne was 

troubled by the need to provide the requested 

accommodations. This is particularly true given Lin’s 

testimony that Manne later complained of her time spent at 

medical appointments.

A reasonable jury could also find that Manne’s

resentment over accommodations affected his negative 

ratings of Lin in the January 29 performance evaluation. As 

discussed above, there are triable issues regarding whether 

Manne’s negative ratings, in turn, affected Henriquez’s 

decision to leave Lin on the RIF list and to ultimately 

terminate her employment. Accordingly, because a 

reasonable jury could, on this record, find a violation of 

Government Code section 12940, subdivision (m)(2), we 
25

reverse the trial court’s summary adjudication of Lin’s 

retaliation claim.4

D. Derivative Claims for Failure to Prevent

Prohibited Conduct, Wrongful Termination, 

and IIED

The parties agree that if we conclude—as we have—

that Lin’s claims for disability discrimination and retaliation

survive summary judgment, we should reach the same 

conclusion with respect to Lin’s “derivative” claims for 

failure to prevent discrimination or retaliation, wrongful 

termination in violation of public policy, and IIED. 

Accordingly, we reverse the trial court’s summary

adjudication of these claims as well.

E. Failure to Accommodate Lin’s Disability and to 

Engage in the Interactive Process

Under FEHA, an employer is required “to make 

reasonable accommodation for the known physical or mental 

disability of an applicant or employee.” (Gov. Code, § 12940, 

subd. (m)(1).) Relatedly, the employer is required “to engage 

in a timely, good faith, interactive process with the employee 

or applicant to determine effective reasonable 

accommodations, if any, in response to a request for

4 We need not address Lin’s alternative theory in support of

her retaliation claim, i.e., that Kaiser retaliated against her for 

opposing practices forbidden under FEHA. (See Gov. Code,

§ 12940, subd. (h).)
26

reasonable accommodation by an employee or applicant with

a known physical or mental disability . . . .” (Gov. Code, 

§ 12940, subd. (n).) Contrary to Kaiser’s contention (which 

the trial court accepted), it is not necessarily sufficient for an 

employer merely to grant the employee each accommodation 

she requests. “‘[T]he employer’s obligation to engage in the 

interactive process extends beyond the first attempt at 

accommodation and continues when the employee asks for a 

different accommodation or where the employer is aware 

that the initial accommodation is failing and further 

accommodation is needed.’” (Scotch v. Art Institute of 

California (2009) 173 Cal.App.4th 986, 1013, italics added.) 

Put differently, while an employer need not read an

employee’s mind or provide accommodations of which it is 

unaware, when an employer is aware of a further reasonable 

accommodation that is needed, the employer has a duty to 

consider that accommodation even if the employee does not 

explicitly request it. (See Cal. Code Regs., tit. 2, § 11068, 

subd. (e) [“An employer or other covered entity is required to 

consider any and all reasonable accommodations of which it 

is aware or that are brought to its attention by the applicant 

or employee” (italics added)].)

Applying these standards to the record before us, 

viewed in the light most favorable to Lin, we conclude that 

Lin has made a showing sufficient to survive summary

judgment. Although Kaiser granted Lin each 

accommodation she requested, the record contains evidence 

that through Manne, Kaiser knew of—but failed to discuss
27

or provide—an additional reasonable accommodation that 

Lin needed, namely assigning Lin “lighter tasks.” On 

January 22, 2019, Manne expressed an intent to provide this 

very accommodation upon Lin’s return from a vacation. 

When Lin returned in February 2019, however, she was not 

assigned lighter tasks, but instead was subjected to 

increased criticism of her performance. In response, Lin told

Manne that his performance concerns were linked to her 

disability and that she “need[ed] help.” A jury reasonably 

could find that by this point, Manne was aware that Lin’s

initial accommodations were failing and further 

accommodation was needed. That would trigger Kaiser’s 

duties to engage in the interactive process and to consider 

any and all reasonable accommodations of which it was 

aware, including the lighter assignments Manne himself had 

contemplated. (See Scotch v. Art Institute of California, 

supra, 173 Cal.App.4th at 1013; Cal. Code Regs., tit. 2, 

§ 11068, subd. (e).)5 Kaiser does not contend that it 

discharged these duties or that assigning Lin lighter tasks 

would have been unreasonable. 

5 The cases on which Kaiser relies are distinct. (See Doe v. 

Department of Corrections & Rehabilitation (2019) 43 

Cal.App.5th 721, 739-740 [employee failed to provide employer 

sufficient information to establish he was disabled, much less to 

establish his need for accommodations]; King v. United Parcel 

Service, Inc. (2007) 152 Cal.App.4th 426, 444 [employee failed to 

communicate his disability-related distress to his supervisors, 

who reasonably relied on his “apparent” ability to “‘get the job 

done’” notwithstanding his disability].)
28

Accordingly, we reverse the trial court’s summary 

adjudication of Lin’s claims for failure to accommodate her 

disability and to engage in the interactive process. Because 

we likewise reverse the court’s summary adjudication of 

Lin’s other claims, we reverse the judgment in its entirety.
29

DISPOSITION

The judgment is reversed. The matter is remanded to 

the trial court for further proceedings consistent with this 

opinion. Lin is awarded her costs on appeal.

CERTIFIED FOR PUBLICATION

DAUM, J. *

We concur: 

COLLINS, J.

CURREY, Acting P.J.

* Judge of the Los Angeles Superior Court, assigned by the 

Chief Justice pursuant to Article VI, section 6, of the California 

Constitution.