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 HOSP ITALS

,

Defendant and Respondent

. B 3 14 162

(L os Angeles Count y Super. Ct. No. 19STCV232 60 )

APPEAL f

r om a j ud gment of the Superio r Co ur t o f
Los A nge le s Cou nty
, Barbara A. M eiers , Judge. Reversed
and remanded.2 Gusdorff L a w and J anet Gusd o rff; The Rager Law Firm, J effrey A. Rage r and J am es Y

. Yoon

, for Plaintiff and Appellant.
Co le Pedroza, Kenneth R

. P edro za and Zena Jac obsen,
for Defendant and Respondent

.

____________________________________________

INTRODUCTION Appellant Suchin Lin appeals from the trial court ’ s grant of summ ary jud gm ent in favor of her fo rmer employer,

respo ndent Kaiser Founda tion Hospitals (Kaiser)

. Because

t he recor d dis close s triable issues of fact on Lin ’ s claims

, all of which relate to disability discrimination, we r everse the judgment

. A s part of a r oun d of e mpl o yee layoffs

, Kaise r planned

, at least tenta tiv ely

, to ter minate Lin before Lin became
disabled

. Kaise r ’ s plan t o terminate Lin before she became
disabled

, by itself

, was ( of course ) n ot discrimination against
Lin because of a disability

. But Kaise r d id n ot complete its
la yoff plans

— or, a reasonable jury could find, mak e its fin al
determination to terminate Lin

— until after Lin had beco me disa bled

. On the record here, the re was evidence from which a reasonable jury could conclude that Kaiser ’ s ultimate
de c ision to terminate Lin was motivat ed , at le ast in
substan tial part

, by concerns Kaiser had about Lin ’ s disab ility

. That allows Lin ’ s complaint to survi ve summary judgment

.3

F ACTUAL AND PROC EDURAL BACKGROUND 1

A. Lin Receives Positive Performance R atings
Be for e Her Disability
In June 1999

, Kaiser hired Lin as a data management associate. Fro m 1999 to 2 016, Lin was on several occa sions promoted or tr ansferred to a different position, cu lminating
in a position as an IT engineer. During this period

, L in’s

man age r s evaluated her performance positively

. In May 2017, Lin was transferred to a position as a Software Quality Assurance Associate Engineer in t he
Innovation and Transformation (I& T) department , on e of eight departments within Kaiser’s Technolo gy Risk
O rga n i zation (TRO). Li n had four teammates in the I&T department , each of whom was more experie nced than L in in quality assuranc e

. Lin and her teammates were directly supervised by Sridhar Manne. Manne , in turn, was supervise d by Douglas Monroe

, who repo rte d to I&T
executive director Wilson Henriquez. In March 2018, Manne c ompleted written 2017 performance evalu ations for the I&T department , giving Lin
and each of her teammates the sam e overall rating of
“Successful Perform ance.” Manne rated L in’s per for ma nc e as “Excellent” in several subca tegories, including those that

encompas sed meeting “t imeframes” and operating

1 Our des cription of the record cons true s t he f acts in the light
most favorable to Lin , the party opposing summ ary judgmen t

. ( See Fau st v. California Po rtland Cement Co. (2007) 150 Cal.App.4th 864, 877

. )4

“effic iently.” Later in 2018, Manne condu cted Lin’s mid

- year evaluation, again rating her performance as successful.

B. L in Is Se lected, Bef or e She Be come s Disabled , f or a Reduction in Force ( R I F )
In December 201 8
, Kaiser began to plan to lay off
certain employees, for economic reason s

. Specifically, o n December 12, 2018, TR O senior directo r Mark Lopez
circulated an email stating t hat “ po t entia l reducti ons” were required to meet 2019 budget targets and asking TRO
directors to select employe es to be included on a li st for layoffs to be completed as par t of a “ Reduction in Force ” or

“ RIF ” to help Kaiser meet budgetary goals for 2019.
I&T e x ecut i ve direc tor Henriqu ez declared that on or around December 18, 2018, he made the deci sion to eliminate Lin’s position, ex plain ing: “I selecte d Lin based on
discussions I had h ad earlier with Douglas Monroe and Sridhar Manne about Lin’s performa nce i ss u es i n 2018, that
she was not getting up to speed as quickly as expected and
was still str uggling in performing her duties as a Qua lity
Assurance tester.” As discussed fu rther below, however,
there is at least ambigu ity in the record about whet her the se

c o nvers ations a ctually took place

. The contemporan eous documenta ry record does not reflect these concerns about
Lin ’ s perf

ormance.5 C. Lin Becomes Disabled a nd Makes Initial Requests for Accommodation
O n January 7, 2019, Lin fell in her workplace and
suf fe r ed an injury to her left s houlder. Th e same day, a doctor issued a work status report pl acing Lin on modified duty thr ough January 11, with restrictions requiring Lin to use a sling and to limit use of her left arm. Lin se nt the work status report to Man ne on J anuary 8, and on January
9 informed Manne that she could not move he r le ft arm “ at all ” and that she h ad an upcoming appointment to be

e valuated for surgery. On January 21, 2019, Lin sent Manne a doct or ’ s report

p lacing he r on mo dified dut y thr oug h Febr uary 22, wit h new restrictions limiting use of her left ar m and requ iring Lin to

att end medical and physical therapy visit s

. The next day (January 22) , a workers’ c ompensation claims exami ner asked Manne by email whet her he wou ld be able to

a ccom mod ate th ese restrictions. Manne respo nded: “Yes I
would be ab le to accommodate the modified duty. [¶] Suchin [Lin] is on ap proved [non

- disability

- related] tim e off from today thru Fe b 12th. [¶] Once she is back, I will be assigning her with lighter t asks .” Lin d eclared that Manne n ever

as sig ned her lighter task s or discussed the p ossibility of modifying her assignments with her

.6 D. Lin ’ s Supervisor Negatively Evalu ates Li n ’ s Perfo rmance in Connectio n wi th t he RIF
On January 29 , 2019
, after Lin had su ff ere d her in

jury,
Manne , Lin ’ s su perviso r, discussed Lin ’ s performance with human resources business partner Kimb erly W est

. According to West’s handwritt en notes from the ir discussi on, Manne i dentified an issue w ith the qua lity of Lin’s work, at least in p art due to Lin’s “ slow delivery.” West also noted that Lin was on modified duty , and wrote benea th this note : “slower typing?” Lin testifie d at her deposition that her
in jury caused her to type m o re s lowly

. Th e sam e day (January 29 , 2019 )

, I &T executi ve di recto r H enriquez emailed Manne, aski ng : “ Which [I &T]

team members have a g ood analytical skill set? Which team members have a good communication skill set? W hich team members have hi gh technical acumen? Which te am members show good time m anagement an d o rgani zat ion? [¶]
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 settin g forth the requested ratings for Lin and her four teamma tes in five “compete nc ies ” (proce ss improvement, analytical skills, communication, techni cal acumen, and organization). Manne gave Lin a n aggregate rating of nine out of 20, while giv ing each of her teammates a hi gher rating of 16 or above

. Henrique z testified at his deposi ti on regardin g his reason for requesting thi s performance information: “It was probably

re quested by me

— from me to make sure that I had

— that7

there was a g ood handle in terms of the fol ks in the group
and to make sure probably to co mpare and make sure that it

wa sn’t an unju st termination

— not terminat ion, l ayoff

. . . . ”
Sim ilar n umerical ratings of employee competenci es

were prepared in at least three other TRO departments.
West d eclared th at these ratings were prepared and
collected “ as part of Human Res ou rce s’ due d iligence processes in connection with the 2019 TRO reduction in
force. ”
O n January 31
, 2019, Kaise r circu lated a n updated
RIF list , wh ich h ad been narrowed from 31 to 25 employees
but still included Lin. Com ments conc er ning the six employe es re moved from the list indicated th at two were removed becau s e they had resigned, two because contractors
had b een terminated in th eir stead, o ne because “contra ct or spend reduced,” and one because “M&A resource.”

E. Lin ’ s Supervisor Increases His Critici sm s o f
L in ’ s Pe rformance On February 22, 2019, Lin ’s modified duty was extended by he r doctor throug h March 2 5, subject to the

s ame re stri ctions limi t ing use of her left arm and requiring
her to attend medical and phy s ical therapy visits

. On February 2 7
, Ma nne met with Lin to discuss her

per formance. In a February 28 email memorializing th e discussio n, Manne sta ted that Lin ’s “unav ailability ” had occasionally forced her teammates to comp l ete tasks for her

an d that Lin ’s “pace of exec ution needs improvemen t. ”8

Ma nne plac ed Lin on a n “action plan ” requiring her , int er alia, to “manage [her] ta sks within a reasona b le time

. ”
Manne warned that she may be terminated if she failed to
sho w improvement.
Lin testified at her deposition a bout this February
2019 me eti ng w i th Manne. She testified that in the cours e of complai ning that Lin ’ s teamm ates had com pleted ta sks for
her and that she needed to work a t a faster pace

, “ [Manne]

s a id, you know, why are you seeing the doctors. ” Lin told
Manne that her inj ury c ause d he r pai n and limi ted her ability to type, and that she needed to atten d medical and ph ysica l therapy v isits two or three times per week as instructed by her do c tor. Lin further told Mann e tha t her health prevented her f rom working over time

, and that she

“ ne ed [ed ] help. ” Neve rtheless, Manne pres su r ed her to work

unp aid overtim e off the clock

. In the wake of th is Februar y 201 9 me e ting

, Lin sent written complaints to West in human resources that Ma nne had

, inter alia, asked he r to work off the clock and cr e a t ed a hostile e nvironment , c ausing her such em oti onal distre ss that she had been u nable to sleep

. At West ’s suggestion, Lin

contac ted Kaiser ’s em ployee assistance pro gra m to discuss her emotional distress, ultimately leadi ng to her re fer ral to a

psy c hia t ri st. On Ma rch 8, 2019, Manne met with L in t o discuss and compl ete h e r 2018 ye ar

- end performance evaluation

. Althou gh Manne again rat ed Lin ’s overall performance as successful, h e wrote that s he was at the “lower e nd ” of9

successful performan ce and rate d her performance in several subcategories as needing imp r oveme nt

. Soon thereafter, Lin

s ent Manne a doctor ’ s report placing her on medical le ave , which was l ater extended through M ay 1 9

.

F. Lin’s Termin ation and C omp laint
In Mar ch 2019, Kaiser circulated tw o m ore draf ts o f
the RIF list , which was reduced first from 25 to 2 0 employees an d finally to 17
, s till including Lin

. On A pr il 16,
Kaiser provided notice of the RIF to the 16 emplo y ees on the
final list other than Lin, who rema ined on medical leave. O n Ap r il 24, Kaise r no tified Lin that her position had be en eliminated and that her em ploymen t w ould be ter minated
ef fective Ju ne 23.
Withi n weeks of her t e rmina tion

, Lin filed her complaint against Kai ser in this action. Her oper ative

, first
amended com pl ain t contained the followi ng FEHA causes of
acti on: (1) disability discrimin ation; (2) retaliati on fo r requesting disability accommodations a nd o pposi ng practices
forb idden under FEHA ; (3) fa i lu re to prevent discrimi nation
and ret aliation; (4) failure to a cco mmodate a di sability ; a nd ( 5 ) failure to engage in a n intera ctive process re gardin g disability accommodat ions. The c omplaint a l so contained

caus es of action for wr ongful ter mination in v io lation of public pol icy and intenti onal infliction of emotiona l dis tress ( II ED )

.10 G. Kaiser’s Motion for Summary J udgment
In June 2020, Kaiser moved for summary judgment o r, in the a l tern ative, summary adjudication

. Kai ser argued
that it was ent itled to summ ary adju dication o f Lin ’s disability discrimin ation and reta l i ati on claims bec aus e Henriquez had made the decisi on to eliminate Lin ’s position
in the RIF in Decembe r 2018
, befo re Lin sustained her disability

. For th e same reasons, Kaiser argued t hat it was
entitled to su mmar y adjudic at ion of Lin ’s “ deri va tive ” clai ms for failure to prevent discrimination and ret a liation, wrongful termination , and IIED. Finally , w ith respec t to Lin ’s claim s for failure to accommodate her dis ability and to engage in an i ntera ctive pro ce ss , K aiser argu e d the claims
failed as a matter of law because Kaiser had g r a n t e d e v e r y

a c c o m m o d a t i o n L i n r e q u e s t e d

, i

. e

. , m o d i f i e d d u t y ( as

p r e s c r i b e d b y h e r d o c t o r s ) a n d m e d i c a l l e a v e

. Lin opposed the motion. S he did not disput e tha t her

n ame was selected fo r the in itial RIF list in D ecember 2018

. B ut she argued that the e v idenc e showed this “p r oposed ” list

was “subj ect to fu rther review, ” as reflected in the list ’s gradual reduction from 31 employees to the 17 w ho were

u l timately l aid o ff

. She further a rgued that her ultimate

t ermination was a res ult of Henr iquez ’s reliance on Manne ’s

po st

- disability assessment of her, partic ularly on Manne ’s January 29, 2019 e mail to H en r iquez rating her pe r formance
much lower than that of her t eam mates

. She a rgued that
Manne ’s ne g ative ratings were based on her disabil ity and /or
he r requests for accommodati ons , as evidenced by the11

disparity in his evalu ations o f her perf orm ance before a nd
after th es e events, and by his c riticism o f per forma n c e iss ues “emanatin g fro m her disability

. ” Fi nally, she argued t hat
b eca use Manne never assign ed her li ghter task s

— as he said
he would

— or discussed ot her possible accommod ations to hel p her overcome her disability

- relat ed pace issues, she h ad
raise d triabl e iss ues of materi al fact on he r accommodation
cl aims.

H. The Trial Cour t’s Hearing and Ruling In April 2021, the trial court held a hearing on Kaiser ’s
motion fo r summary judgment. In May 2021, the court
issu ed a minute order granting Kaiser ’s motion fo r s umm ary ju dgment in its entirety. The court explained : “ [T]he court
fi nds that the plaintiff has failed to produ ce facts, as opposed to opinions an d speculation, that the defendant terminated
her em plo y ment for any reasons other than those whi ch it
has a rt icu lated relatin g to bu dge t considerations and [the RIF]

. The undis pu ted evidence i s

. . . that this decision t o terminat e the plain tiff was made before her disability was
made known to the defenda nt

. ” In response to Lin ’s argument that post

- disability d isc ussions of he r performance
influenced Kaiser ’ s decision to terminat e her, the court

stat ed, in rele vant pa rt: “ The recor d is clear that these post

decision

- to

- fire

- discussions also occ urr e d with regard to all of the other employe es who were also bei ng let go as a p art of the same group of ‘ firings, ’ and

. . . simply as a ‘ pro forma ’ part of [ Kaiser ’ s] ongoing pr ocess of in ternally documenting12

and processing [the initial RIF selections ]

. ” With respect to
Lin ’s claims for failure to acc ommodat e her di sab ili ty and to

en g age in an in teractive process , the court noted that “ i t was undisputed that all acc ommodatio ns sought were granted. ”
The cou r t subseque n tly entered judgment in Kaiser ’s
favor

. Lin timely ap pealed

.

DISCUS SION
Lin contends that the tr ial court erre d in g ranting Kaiser summary jud gment on all her claims

. F or the

r easo ns dis cussed below , w e agree and reverse the judgment

.

A. Standard of R e view “On ap peal after a motion for summary judgment has been granted, we review the record de n ovo

. . . . [W] e de termine with respect to each cau s e of action whether the
de fendant seeki ng summary judg ment has conclusively

nega ted a necessary ele ment of t he plaintiff’s case, or has demonstrated that under no hyp othesis is there a material
issue of fac t t hat requires t he process of trial, such that t h e defendant is entitled to judgme nt as a m atter of law .” ( Guz
v. Bechtel Nat ional I

nc. (2000) 24 Cal.4 th 317, 3 34 ( Guz ).)
We view the evidence in the light most favorab le to the nonmoving party, dr awin g all r easonable inf erences in that party ’ s f avor. ( Weis s v. People ex rel. De partment of
Trans portation (2020 ) 9 Cal.5th 840, 864 ; see also Code Civ. Proc., § 437 c , subd. (c) .)13 B. F EHA Disability Discrimination
1. Disability Discrimination Standards FEHA proh ibits a n em ployer fr om discharging any

per son from emplo ym ent

— or otherwise disc riminating

a gainst the person in t erms, conditions, or privileges of employment

— becaus e of the person ’ s disability. (Gov. Code, § 12940, subd. (a).)
T hree aspects of FEHA are parti c ularly signif icant
here . First, in situations wher e the evidence of dis ability
disc rimina tion is circums tantial, “California has adopted the
three

- stag e burd e n

- shifting test establis hed by the Un ited States Supreme Court for trying claims of discri mina ti o n

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

, supra , 24 Cal. 4th at 354, citing McDonnell Doug las Corp. v. Green (1973) 411 U.S. 792 ( McDonne ll Dou g las ).) 2
T he Mc Donnell Douglas test “ places on the plaintiff the
initial burden to establ ish a p rima facie ca se of
discriminatio n , ” re quiring evide nce that : (1) th e pla intiff was

a membe r of a protecte d class; (2) she was pe rforming competently in the po s ition she held; (3) she suffered an adverse employment action such as termination; and (4)

2 Lin conten ds tha t because she produced direc t and not merely circumstantial evidence of disab il ity discr i mination

, the McDonnell Douglas test does not apply

, a nd her burden on summary judgment is less onerou s. We need not an d do not address this con tention, bec ause we conc lude that Lin has raised triable issues of material fact on her di scrimin at io n claim e ve n unde r the more burdensome McDonnell Douglas test

.14

some o ther circu mst ance suggests the e mploy er acted on a discriminatory m otive . ( Guz

, sup ra , 24 Cal.4th at 354

- 355.) The burden then shifts to the employer to pro d uce admissible e vidence of one or more legitima te, nondiscriminatory reasons for its adve rse emp l oyment

act ion . ( Id. at 355

- 356. ) Finally, the bur den shift s back to
th e plaintif

f “to at tack th e employ er’s proffered reas ons as pretexts for discrimination

, or to offer any other evidence of discriminatory motive.” ( Id. a t 356. ) “ Invocation o f a righ t to downsize does not re solve whether the emp loyer had a discriminatory motive for cutting back it s work force, or

eng aged in intentional discriminat ion when deciding which
individual workers to retain and rel ease. ” ( Id. at 358.)
Second

, it is not ordi n arily necessa ry for a di sabled employee to sh ow tha t a disability was th e sole r eason for a termination , or that the termination would not have happened but fo r the disability

. Instead

, when a plaintiff

e mployee advances a “ mixed motive ” theory ( i.e., a t heory
that an employer h ad both legitimate an d disc riminat ory motives fo r a ter m ination)

, the plaintiff must show only that
her di sability was a “ substantial motivating factor ” in the challenged emplo yment action

. ( Harris v. City of Santa
Monica (2013) 5 6 Cal. 4t h 203, 229

- 232 , 2 41 ( Harris ) .) “[D]is crimin ation, though not a ‘ but for’ cause of an adverse employme nt action (because the empl oyer can show it would have taken the same action in any event), might nonetheless
be found to be a substantia l motivat i ng factor .

. . .” ( Id. at15

226.) 3 Thus, “ [i ] f tri able issues of mater i al fact exist [as to]
whe t her discrimination was a substantial motivating reason for the empl oyer’s adverse employment action, even if the empl oyer’s professed legitimate reason has not been
d isputed, the FEHA cl aim i s not properly resol ved on summary jud gment.” ( Husman v. Toyota Motor Credit Corp. (2017) 12 Cal.App.5th 1168, 1186 .) Third, under the so

- called “ ‘ ca t ’ s paw ’ ” doctrine, a plaintiff “ need not demonstrate that every ind ividual w h o participated i n the [ch allenged employment a ction] shared
discri minato r y 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 i n f erence that

t he employm ent decision itself w as dis criminatory, even ab s ent evidence that others in the process harbored such
animus. ” ( DeJung v. Superior Court (2008) 1 69 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 de cision to terminate an empl oyee reg ardless of a discriminatory motive, the e mployee

plaintiff i s no t ordinarily entit l ed to collect monetary damages, and is li m ited to obtaining injunc tive and declaratory relief and attorney s ’ fees. ( Harris

, supra , 56 Ca l

. 4th at 232

- 2 35.) We

express no op inion as to whether Kaiser can make suc h a showin g at tria l

, or what such a showing would mean for the ultimate relief avail a ble to Lin in thi s action

.16 2. Analysis
A pplied here, these standards com p el reversal of the
trial cour t’s sum mar y adjudic ation of L in ’ s FEH A disabilit y discrimina tion claim

. Th ere is no serious dis pute that Lin met her burden at the first stage of the McDonnell Douglas test, and that
Kaiser met its burden at the second sta g e. K aiser doe s not contend (and the t ria l cou rt did not find) that Lin failed to
meet her prima facie b urd en

. Equally

, Kaiser is certainly

correct that its decision to place Lin on the initial RIF list for
termination in Dec ember 2018

— before Lin b ecame d isabl ed

— could no t have been unlaw ful disa bility
discr imination or a pretext the re for

. But Kaiser ’ s placement of Lin on th e December 2018
RIF list is not, by itself

, dispositi ve

. Kaiser did not actually
eliminate Lin ’ s position, provide final no t ice of the RI F list,

a nd ultimat ely give Lin notice of termin ation until April
2019

— month s aft er Kaiser be c ame a ware of Lin ’ s disability

. If L in can show by competent evidence that between December 2018 and April 201 9 d isability discrimination
became at least a subs ta ntial mo t iv ating factor in L in ’ s
term ination

, then the fact that she was ori ginally placed on the list for a layoff is not decisive

. T he critical question is whether the summary judgment recor d, construed in Lin’s favor, rationally support s both of the fo llowing i n f erences : (a)
Kais er ’s December 2018 selecti on of Li n for the RIF list was tentativ e , not final ; and (b) Kaiser ’s ultimate decision to keep Lin on the RIF l ist and to terminate her employment17

was ba sed

, at least in substant ial part, o n Lin’s disa bility.
Fo r the r easons dis cussed below, w e conclude that the record
ration ally supports bot h of those inferences

. T hat means Kaiser was n ot entit led to summary judgment on Lin ’ s FEHA disability discrimina tion claim

.

a. A j ury reasonably c ould f ind that
Lin ’ s Dec em ber 2018 s electio n for the
RIF was t entative
The re c o rd is clear t ha t the D ecember 20 18 RIF list
was not set in st one. B etween December 2018 and M a rch
2019
, Kaiser circul ated several progre ssively narrower drafts of the RIF l ist

. As Kaiser con ced es: “ T he re i s no d ispute 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 depa rtments within TRO ( which encompassed Lin ’s I&T department)

, Kai se r aver t ed l a yoffs of employe es target ed by
its initi al RIF plan “ ‘ be cause ano ther w ay was foun d to cu t

cost s, ’ ” such as terminating contractors instead of the initially selected employees

. I n Lin’s own I&T department,
Kaiser’s docum ents not e th at consider able savi ng s wer e predicted to be achieved by methods such as “ [r]e d uction of Risk Engine s upport” ; “[r]eduction of CEB Insights and Cloud Security A lliance” ; and “[r]eduction in travel, training
and additional saving s.” On this record, dr awing a l l

re ason able infe re nces in Lin’ s fav or, a jury rationally co uld
f ind th at even after Kaiser s elected L i n for the initial RIF18

list in December 2018, it could have averted Lin ’ s termination by finding other means to me e t I&T ’ s bud ge t target

. Eve n more impo r tant
, evi dence in th e record sug gests that after L in became d isa bled in January 2019, Kaiser
considered f

actors directly rela ted to employee performance
in deciding whe ther to maintain employees on the RIF list.
O n January 29, 201 9, in connection with hi s pr eparat ion o f pl an s for the R I F, I& T executive director Hen riq uez asked
Lin ’s direct supervisor Manne for detailed ratings of empl oyee performance among the members of Lin ’s team:

“ Which team members have a good analytical skill set?
Which team members hav e a go od co mmun ic ation skill set?
Which team members have h igh technical acumen? Which

team members show good time management and organization? ” Henriquez admi tted at his deposition that in 2019 he asked for, obtain ed, and relied on Manne ’ s o pinion

conce rning Lin “in te r ms of the reduct ion in
f orce.” Moreover, Henriquez testified tha t his reason for
seeki ng this performance informati on was to “compare ” the
members o f th e group and to ensure “ it was n’t an u nju st termination [or l a yof

f ]

. ” A reasona ble jury cou ld infer fr om Henr iq uez’ s c o ncern about the layoff ’ s fairness that had
Manne rated Lin ’ s pe rformance in a manner suggesting her layoff w ould be “ unjust, ” Henriquez wou ld have sought to

ave rt Li n ’s layof

f , and cost

- cut in a diff

erent ar ea

. The reasonablenes s of this i nference is furth er

suppo rt ed by ambiguity in the record regarding the reasons19

for L in ’s initi al se lection for the RIF list in December 2018. Through a declaration from Henriqu ez

— whom Kai ser characterizes as “the s o le decis ionm aker ”

— Kaiser soug ht to

est ab lis h that Henriqu ez selected Lin f or the initial RIF list
in relia nce on discussion s with Manne and Manne ’s supervisor Monroe about Lin’s relative ly poor performance

p r ior to 2019

. But Monroe fai l e d to rec all these alleged perfor mance discussio n s at his d eposition , and Ka iser failed to produce any deposition testimony o r other evidence corroborating H enriquez ’ s decla ration that these discuss ions

occur red

. Kaise r ’ s failure to produce a fi r m record explaining Lin ’ s initia l se lection for the RIF l ist h elps t o support an infe rence t hat when Henriquez solicited and
received Manne ’ s evaluation of Lin ’ s performance on January 29, 2019, he was open to removin g Lin from the R IF
list o n t h e b a s i s o f t h at information

. In response

, Kaiser ar gu es

— as the tria l cou rt f ou nd

— that any effor ts i t took to assess employee performance after
D ecember 201 8 were entirely “pro forma ” and lacked any

causa l relation to Li n ’s rema ining on the RIF list

. Kaiser emphasizes that t o the extent the record reve als Kaise r ’ s stated rea sons f

or removing 14 empl oyees from the initial
RIF list

, such as the term ination of contractor s instead,
thos e reasons we re unr elat ed to the employees ’ performance.
Kaiser also cites human res ources executive West ’s
decl ar ation that the collect ion of performa n ce information

was simply a function of “due diligence,” and Henriqu ez’s deposition testimo ny characteri z ing his Janu ary 2 01920

request for such informatio n f ro m Manne a s a mere “forma lity.”
W hile these facts support inferences in Kaiser ’s favor,

t hey are n ot determinative of the issues on this appe al

. In this posture, w e a r e r e q u i r e d to draw a ll co m peting

reason able inferences in Lin ’s favor. ( See Weiss v. People ex rel. Depa rtment of Transportation

, supr a , 9 Cal.5th at 864 ; Code Civ. Proc., § 43 7c , subd. ( c) .) A reasonab l e jury could

re adily conclude that when Kaiser

, i n 201 9
, collected
informati on about the performance of its e mploye es in

con nection with its RIF plan , Kaise r did so for a reason. It is
reasonable to infer that Kaiser substantia lly relie d on the
in formatio n about employee performance it collecte d i n maki ng de ci sions a bou t the RIF. A s noted, Henriquez

— the

ex ecutive dir ector of Lin ’ s department

— specifically testi fied
that the reason he collected information in 2019 conce rni ng Lin’ s perform an ce was to determi ne whether the layoff would be “unjust.” Thus, a ju ry reasona bly could f ind that
Ka iser and Henrique z did not sim ply collec t employee perform ance information for ( unspecified ) “ pro forma ” or

“ due diligence ” reasons , but instead were rel yi ng, at least in

s ubstantial part, on information about Lin ’ s perfo rman ce as

an employee in d eciding wh ether t o proce ed wi th Lin ’ s
te r mination

. We turn no w to the question whether the jury
could find this decision was substantially motivated by Lin ’ s dis ab ility.21 b. A reason ab l e jury c ould f ind that Lin’s t erminatio n w as s ub stan tially

m o tivated by h er d is abili ty F or Lin ’s FEH A disability d i s crimination claim to survive summary judgmen t
, Lin must show facts from which a reasonable jury could conclude that Kais er ’s ultimate
decis ion to terminate her emp loyment was motiv ated in

s u bs t antial p art by her disabili ty. (See Harris

, su pra , 56 Cal.4t h at 231

- 232 ; Husman v. Toyota Motor Credit Corp.

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

r ecord con t a ins sufficient ev idence for Lin to meet her
bu rden.
Bef ore Lin s ustained her di sability, neith er Man ne nor

any prior supervisor ga ve her a negative pe rfor mance evaluation. Througho ut Li n ’ s more than 15 years at Kaiser
before she joined Manne ’ s team, h er supervisors cons istently
evaluate d her perfor mance as su c cessful. Manne, too, gav e Lin successful performance r atings on her 2017 and mid

ye ar 2018 performan ce evaluations. While there is little
evidence in the record concerning the performan ce of Lin ’ s teammates, Man ne r ated e ach t eammate ’ s perfo rmance in
2017 as suc ce ssful

— the same r ating he gave L in.
After Lin ’ s disab ility, h owever , Man ne judged L in ’ s performance much more harshly in comparison to that of her

teamm ates. On January 2 9, 201 9 (thr ee we eks after
receiv i ng notice of Lin ’ s dis ability), Manne informed
He nri quez that Lin was by far the low est perfo rmer in the
I &T department, assigning her an aggregate rating of 9 out22

of 20 while rating each of her teammates 16 or ab ove. Manne wen t on to p ro v ide Lin with inc reased negative
feedbac k when placing her on an a ction plan in February 2019 and completing her 2018 ye ar

- end performan ce evaluation in March 2019

. A reasonable j ury co uld find th at Manne ’ s n ewly

n egativ e evaluation of Lin ’ s p erformanc e was substa ntially
motivate d by her disab ility. In the weeks betwee n Lin ’ s injury to her left shoulder on January 7 , 2019, and Manne ’ s negative e valuation of L in to Henr iquez on Ja nuary 29,
Manne wa s informed t hat Li n ’ s in jury limited her use of her
left a r m ( which at one p oint she could not mov e “ at all ” ) , that
she might need surgery, and that she needed to attend regular medical and physical therapy visits. O n January 2 2, when conf

irming that he could accommodate the restrictions

prescr ibed by Lin ’ s d o ct ors , Manne e xpress ed the intent to assign Lin lighter tasks

, suppor ting a reasonable inference
that he believe d her disability p revented her from handling
her usual workload

. On Jan uary 2 9

— the same day Ma nne provided his negative e valuation of Li n to He nr iquez

— he

c o mpl aine d to human resources executive West about Lin ’ s

“ s low delivery ” and ( a jury reasonabl y could infer) her slow ty ping, which Lin testified was cause d by her dis abilit y. A month later (on February 27)

, Manne s imilarly criti cize d
Lin ’ s “ pa ce of exe cution ” and

— according to Li n ’ s testimony

, which a jury would be entitl ed to credit

— expressly linked
this c omplaint to her time spent at m edical appoi ntment s

.23 Kais er does not dispute th at a reasonab le j ury could
find Manne ’ s disab ility

- r elated an im us affec ted his neg ative
evaluations of Lin ’ s performance . Nor does it dispute that
Manne ’ s negative evaluations wer e provid ed to Hen r iq uez , who had decision

- making a uthority over whet her L in would
be term inated as part of the RIF . Instead, Ka iser disp ut es the fact ual basi s for Lin ’ s theory that Henriquez was Manne ’ s “ ca t ’ s paw, ” ar guing that Lin failed to raise a ny triable is sue regardin g whether Henriquez ever reeva luat ed
Lin ’ s ini tial selec tion for the RIF

. Hav ing rejected that argument abo ve , we no w conclude that L in h as raised triable
issues on her cat ’ s paw theory. In othe r words

, a reaso nable jury could fin d t hat Henrique z rel ied , at least in substant ial part, o n Manne ’ s negat ive performan ce ev aluations and on Manne ’ s disability

- relat ed animus i n deciding t hat Lin

w ould not be removed from the RIF list and her emp loyment
would be terminated

. Thus, a reasonable jury co uld find
that Lin ’ s disability was at least a substantial mo tivating
fact or for her termina tion . That is a s ufficient fi n di ng to

su bject Kaiser to lia bility

. ( Harris

, su pra , 56 Cal.4t h at 231

- 232

. )
We therefore reverse the t rial co urt ’ s summary adjudi catio n of Lin ’ s disability discrimi nat ion claim.

C. FEHA Retalia tion
F or simi lar reasons

, we co nclude Lin ’ s claim for FEHA

r etali atio n survives summary ju dgment. FEHA makes it
unl awful for an employer t o “retaliate or otherwise24

discriminate aga inst a person for r equesting accommodation [for a disability]

, regardless o f whether the request was grant ed .” (G ov. Code, § 12940, su bd. (m)(2 )

, italics added .)
H ere, a reasonable jury could find that Ka iser

, ac ting

on Manne ’ s retaliat ory animus, te rm inated Lin ’ s employment in substantial part because Manne resented
Lin ’ s acc ommo dation req uests

— even though Ka iser ultimately granted th ose reque st s

. Lin first reque sted
disab ility accommodations on January 8, 2019 (the day after
h er injury) , and she requ ested furthe r accommoda t ions

— inclu ding regular att endance at medical and phy sic al therapy vis its

— on January 21

. A lthough Kaiser granted
these re qu ests , a jury reason ably could find that Manne was troubled by the nee d to provide the requested
accommodation s

. This is particularly true given Li n ’ s testi mon y that Manne later complained of her ti me spent at medical a p pointments.
A reasonable jury coul d also find tha t Mann e ’ s
resentment over ac commodations affected his ne gative ratings of Lin in the Janu ary 29 performance evalu ation

. A s discuss ed above, there are triabl e issues regarding whether
M anne ’ s negative rat ings, in tu r n, affected Henr iquez ’ s d ec ision to leave L i n on the RIF list and t o ultimately
termi nate her em pl oyment. Accordingly , because a reasonable jury could, on this record, find a violation of
Government C o de section 12940, su b di vision (m)(2 ), we25

r eve rse the t rial co urt ’s sum mary adju di cation of Lin ’s

re t aliation claim. 4

D. Deri vative Claims for Failure to Pr event Prohibited Conduct, Wrongful Terminati on, and I IED The parties agree that if we co nclude

— as we have

— that Lin ’ s claims for disability discrim ination an d retaliation

sur vive summ ar y j udgment , we shou ld r each the same

conc lusion with respect to Lin ’ s “ d erivative ” claims for failure to prevent di scriminat ion or retaliation, wrongful
termina tion in violation of public policy, and IIED

. Ac cordingly, we reverse the trial cour t ’ s summa ry adjudicatio n of th ese claims as well.

E. Fail ure to Acco mmodate Lin ’ s Disability and to Engage in the Interactive Process Under FEHA, an employer is required “ to make

reaso nable accomm odation for the kno wn physical or mental disability o f an appl icant or em ployee.” (Go v. Cod e, § 12940, subd. (m)(1). ) Relatedly, the employe r is required “ to engage in a timely, good faith, interactive p rocess with the employee

o r applicant t o determine effecti v e reasonabl e

accommo dations, if any, in response to a request f or

4 We need not address Lin ’s a lt ern ati ve theory in support of her ret a l iation claim

, i .e., that Kaiser r etaliated against her for opposing prac tices forb idden und er FEH A

. (See Gov. Code, § 12940, subd. (h) .)26

reasonable a ccommo dation by an employee or applicant with a known ph ysical or mental disability

. . . . ” (Gov. Code, § 12940, subd . (n).) Contrar y to Kaiser ’ s contentio n (which
the trial c ourt accept ed), it is not necessarily sufficient for a n employe r merely to gra nt the employ ee each acc ommo dat ion
she requests

. “‘[T]h e employer’s obl igation to engage in the
in teractive process extends beyond the fi rst atte mpt at

acco m modation an d continues when the employee asks for a
different accommodatio n or wher e the em ployer is awa re th at the initial accommodation is failing and f ur ther
accommoda tion is needed .’” ( Scotch v. Art Institute of California (2009) 1 73 Cal.A pp.4 th 986, 1013 , itali cs added .) Put differently, while an employer need not read an

emp loyee ’ s m ind or provide ac commo dations of which it is

unaware, when an emplo yer is aware of a further reasonable

accomm odation that is needed, the employer ha s a duty to

con side r that accom modation even if the employee does not explicitly request it

. (S ee Cal. C ode Reg s., tit. 2, § 110 68
, subd. (e) [“An employer or other co vered entity is required to
consider any and all reasonable accommodations of which it
i s aware or that are brought to its attention by the applicant

o r emplo yee ” ( italics added) ] .)
A ppl ying th ese sta ndards to th e rec or d before us,
viewed in the light most favor able to Lin, we conclude that
Lin has made a showing sufficient to survive summary jud gment

. Althoug h Kaise r granted Lin each
accommodation she r equested, t he record contains evid ence th at through Manne, K aiser knew of

— but faile d to discuss27

or provide

— a n additional reasonable acc ommodation th at Li n needed , namely assigning Lin “ lighte r tasks

. ” On January 22, 20 19, Manne expressed an i ntent to provide this

very accommodat ion up on Lin ’ s re turn from a va catio n. When Lin returned in February 201 9 , however, s he was not
assi gned lighter tasks

, but instea d was subjected to
increase d criticism of her performance

. In response, Lin told
Manne that his performanc e co ncerns were li nked t o h er dis ab ility and that she “ need [ed] help. ” A jury reasonably

co uld find t ha t by this poin t
, M anne was aware that Lin ’ s initial a cco mmodation s w ere failing and further

accomm oda tion wa s needed

. That would trigger Kaiser ’ s dut ies to engage in the inte ractive pr ocess and t o consider any and all reasonable accommodations of which it was

a wa re, including t he lighte r assig nments Manne himself ha d

c ontemplated. ( See Scotch v. Art Institute of California

, supra , 173 Cal.A pp.4t h at 1013 ; Cal. Code Regs., tit . 2, § 110 68, subd. ( e) .) 5 Kaise r does not contend that it discharge d these duti es or t hat as signing Li n lighter tasks
would have been unreaso nab le

.

5 The cas es on whi ch Kaiser relies ar e di stinct

. (See Doe v. Dep artment of Corrections & Rehabilitation (2019) 43 Cal .App.5th 721

, 739

- 740 [ employee failed to provide em ployer suf ficient information to estab li sh he was disabled, muc h less to estab l ish his need for acc ommod a tions] ; King v. United Parcel S ervice, I

nc. (2 007) 152 Cal.App.4th 426

, 444 [ employee failed to communicate his disability

- related distress to his supe rvi sors, who reaso nably relie d on his “a pparent ” ability to “ ‘g et the job done’ ” no twithstanding hi s dis ability ].)28 Accordingly, we re v erse the trial cou rt ’ s summary adjudi cation of L in ’ s c laims for failure to accommodat e her
disa bility an d to e ngage in the in teractive process

. Beca use

w e l ik ewise r evers e the court ’ s summ ary adjudication of
Lin ’ s other claims, we reve rse the judgment in its en tirety.29 D ISPOSITION The judgment is reversed. The matter is rema nded to

t he t rial court for fur ther proceedings cons istent with this

op i nion. Lin is awarded her costs on appeal.

CERTIFIED FOR PUBLICATI ON

DAUM , J. *

We c oncur:

COL LINS , J.

CURREY, A cting P.J.

* Judge of the Los Angeles Superior Court, assigned by the Ch ief Justice pursuant to Articl e VI, section 6, of t he California Constitution.