Filed 11/13/19

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

JOHN GLYNN,

Petitioner,

v.

THE SUPERIOR COURT OF LOS 

ANGELES COUNTY,

 Respondent;

ALLERGAN, INC., et al.,

 Real Parties in Interest.

B296735

(Los Angeles County

Super. Ct. No. 

BC636862)

ORIGINAL PROCEEDINGS; petition for writ of mandate.

Stephanie M. Bowick, Judge. Petition granted in part and denied 

in part.

Magnanimo & Dean, Frank A. Magnanimo; Alexander 

Krakow & Glick LLP, Tracy L. Fehr for Petitioner.

Paul Hastings, Stephen L. Berry and Blake R. Bertagna for 

Real Parties in Interest. 
2

INTRODUCTION

A temporary corporate benefits staffer mistakenly thinks 

an employee has transitioned from short term disability (STD) to 

long term disability (LTD) and is unable to work with or without 

an accommodation. She fires him. The terminated employee tries 

to correct the misunderstandings, but for months the corporation 

ignores his entreaties. Does this constitute direct evidence of

disability discrimination under the Fair Employment and 

Housing Act (FEHA) (Government Code § 12900 et seq.)? For the 

reasons described below, we decide it does, and therefore reverse 

the portion of the trial court’s order granting the corporation’s 

motion for summary adjudication of the employee’s disability 

discrimination cause of action. We also reverse the portions of the 

order granting summary adjudication of the employee’s 

retaliation, failure to prevent discrimination, and wrongful 

termination causes of action. We publish to clarify that even a 

legitimate company policy, if mistakenly applied, may engender 

FEHA disability discrimination liability.

FACTUAL AND PROCEDURAL BACKGROUND

Petitioner John Glynn worked for real parties in interest 

Allergan, Inc. and Allergan USA, Inc. (collectively, Allergan) as a 

pharmaceutical sales representative. His primary duties involved 

driving to doctors’ offices to promote Allergan’s pharmaceutical 

products. In January 2016, Glynn requested, and Allergan 

approved, a medical leave of absence for a serious eye condition 

(myopic macular degeneration). Glynn’s doctor provided a 

medical certification designating Glynn’s work status as “no 

work” because Glynn “can’t safely drive.”
3

Allergan’s reasonable accommodation policy lists 

“reassignment to a vacant position” as a potential 

accommodation. Thus, while on medical leave, Glynn repeatedly 

asked for help getting a new job within the company that did not 

require driving, and applied for several open positions, but 

Allergan never reassigned him. 

On July 20, 2016, a temporary Allergan benefits 

department employee, Anne Marie Perosino, sent a letter to 

Glynn informing him that his employment was being terminated 

effective July 20, 2016: “We received notification from Matrix 

System of your approval for Long Term Disability, effective July 

20, 2016. According to the Allergan Family and Medical Leave 

(AFML) policy, you will no longer be eligible to remain on 

Inactive Status and your employment has ended on 07/20/16, due 

to your inability to return to work by a certain date with or 

without some reasonable workplace accommodation.” Perosino 

mistakenly believed that Glynn’s termination was required under 

Allergan’s policy and practice. Allergan’s actual policy, however, 

is that termination is required once the employee has applied, 

and been approved, for LTD benefits; not, as Perosino believed, 

once an employee’s “transition date” from STD to LTD benefits 

(i.e. the date the employee becomes eligible for LTD benefits) has 

passed. At no point did Glynn apply for LTD, and it is undisputed 

that he could have returned to work with reasonable 

accommodation. The day after his termination, Glynn emailed a 

letter to the members of the Allergan Human Resources 

Department, including its director, stating he never applied for

LTD, that he could work in any position that did not require 

driving, and protesting the mistaken decision to terminate him.
4

Glynn was not reinstated, so he sued Allergan alleging 

eight causes of action: (1) disability discrimination; (2) failure to 

engage in the interactive process; (3) failure to accommodate 

disability; (4) retaliation; (5) failure to prevent discrimination and 

harassment; (6) retaliation in violation of Labor Code section

1102.5; (7) wrongful termination/adverse treatment in violation 

of public policy; and (8) intentional infliction of emotional 

distress. 

Nine months after Glynn informed Allergan he was not on 

LTD and was ready and willing to work in a suitable position, 

and after he filed suit, Allergan’s Chief Human Resources Officer, 

Karen Ling, sent Glynn a letter stating her belief that “the 

human resources personnel involved . . . sincerely believed the 

actions taken were appropriate . . . [but that the reasonable 

accommodation] process could and should have been handled 

better,” and conceding “[his] employment should not have been 

ended.” Ling offered to reinstate Glynn unconditionally with full 

back pay and to continue his pay and benefits at the level he was 

receiving before he went out on medical leave while he identified 

a job to which he wanted to be assigned and for which he was 

qualified. Glynn responded by rejecting Allergan’s offer of 

reinstatement because Ling’s letter did not identify any specific 

position being offered or the compensation, and Glynn’s stated 

belief that Allergan would continue to mistreat him and fail to 

place him in an open position. Ling sent another letter to Glynn 

asking him to reconsider his rejection of her reinstatement offer.

Glynn responded to Ling’s second letter, again rejecting the

reinstatement offer because he did not “believe [her] offer was 

made in good faith.” Glynn’s treating psychologist also declared

Glynn’s psychological well-being would have been negatively 
5

affected had he returned to Allergan. Glynn’s rejection of Ling’s 

reinstatement offers became the basis for Allergan’s failure to 

mitigate damages affirmative defense. 

Allergan moved for summary judgment or, alternatively, 

summary adjudication of each cause of action. It also moved for 

summary adjudication of its failure to mitigate damages

affirmative defense and Glynn’s request for punitive damages. In 

a lengthy and detailed ruling, the trial court denied Allergan’s 

motion for summary judgment, but granted summary 

adjudication in favor of Allergan on Glynn’s causes of action for:

(1) disability discrimination; (2) retaliation; (3) failure to prevent 

discrimination and harassment; (4) retaliation in violation of 

Labor Code section 1102.5; (5) wrongful termination/adverse 

treatment in violation of public policy; and (6) intentional 

infliction of emotional distress. It also granted Allergan’s motion 

for summary adjudication of its failure to mitigate affirmative 

defense and the unavailability of punitive damages. The court 

denied Allergan’s motion for summary adjudication of Glynn’s 

causes of action for (1) failure to engage in the interactive process 

and (2) failure to reasonably accommodate his disability. 

Glynn filed a petition for writ of mandate in this court to 

reverse the trial court’s summary adjudication on all causes of 

action and defenses except summary adjudication of his claims 

for Labor Code section 1102.5 retaliation and intentional 

infliction of emotional distress. We issued an alternative writ 

ordering the court to either: (1) vacate its summary adjudication 

order and instead enter a new order denying the motion on the 

following causes of action: the first cause of action for disability 

discrimination on the ground Glynn has shown direct evidence of 

disability discrimination; the fourth cause of action for disability-
6

related retaliation on the ground Glynn demonstrated triable 

issues of material fact; the fifth cause of action for failure to 

prevent discrimination and harassment; and the seventh cause of 

action for wrongful termination/adverse treatment in violation of 

public policy on the ground that these causes of action are 

dependent on or derivative of the first cause of action; or, in the 

alternative (2) show cause why a peremptory writ of mandate 

should not issue. The trial court did not change its order. 

Allergan filed a return to the writ and Glynn filed a reply. 

DISCUSSION

I. Allergan is Not Entitled to Summary Adjudication of

Glynn’s First Cause of Action for Disability 

Discrimination

California has adopted the three-stage burden-shifting test 

for discrimination claims set forth in McDonnell Douglas Corp. v. 

Green (1973) 411 U.S. 792 [93 S. Ct. 1817, 36 L. Ed 2d 688]

(McDonnell Douglas). (Guz v. Bechtel National, Inc. (2000) 24 

Cal.4th 317, 354 [100 Cal. Rptr. 2d 352] (Guz).) The plaintiff has 

the initial burden to make a prima facie showing of employment 

discrimination.

1 (Ibid.) If the plaintiff establishes a prima facie 

1 The elements of a disparate treatment disability discrimination 

claim are that the plaintiff (1) suffered from a disability or was 

regarded as suffering from a disability, (2) could perform the 

essential duties of a job with or without reasonable 

accommodations, and (3) was subjected to an adverse 

employment action because of the disability or perceived 

disability. (Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 

297, 310.)
7

case, the burden shifts to the employer to produce evidence of a

legitimate, nondiscriminatory reason for the adverse employment 

action. (Id. at p. 355.) If the employer sustains this burden, the 

plaintiff must then have the opportunity to attack the employer’s 

proffered reasons as pretexts for discrimination, or to offer any 

other evidence of discriminatory motive. (Id. at p. 356)

The McDonnell Douglas three-stage framework does not 

apply, however, where the plaintiff presents direct evidence of 

discrimination. Thus, in disability discrimination cases, the 

threshold issue is “whether there is direct evidence that the 

motive for the employer’s conduct was related to the employee’s 

physical or mental condition.” (Wallace v. County of Stanislaus

(2016) 245 Cal.App.4th 109, 123 (Wallace).) “[A] plaintiff alleging 

disability discrimination can establish the requisite employer 

intent to discriminate by proving (1) the employer knew that 

plaintiff had a physical condition that limited a major life 

activity, or perceived him to have such a condition, and (2) the 

plaintiff’s actual or perceived physical condition was a 

substantial motivating reason for the defendant’s decision to 

subject the plaintiff to an adverse employment action.” (Id. at p. 

129.) Relying on Wallace, Glynn contends he provided direct 

evidence of disability discrimination, making the McDonnell 

Douglas framework inapplicable. We agree.

In Wallace, the county removed a deputy sheriff from his 

job as a bailiff and placed him on an unpaid leave of absence 

based on its good faith—but incorrect—assessment that he could 

not safely perform his duties as a bailiff even with reasonable 

accommodation. (Wallace, supra, 245 Cal.App.4th at p. 115.) The 

court held the trial court erred in instructing the jury that 

animus or ill will was required to prove discriminatory intent. 
8

(Ibid.) The court explained: “California law does not require an 

employee with an actual or perceived disability to prove that the 

employer’s adverse employment action was motivated by 

animosity or ill will against the employee. Instead, California’s 

statutory scheme protects employees from an employer’s 

erroneous or mistaken beliefs about the employee’s physical 

condition. ([Gov. Code,] § 12926.1, subd. (d).) In short, the 

Legislature decided that the financial consequences of an 

employer’s mistaken belief that an employee is unable to safely 

perform a job’s essential functions should be borne by the 

employer, not the employee, even if the employer’s mistake was 

reasonable and made in good faith.” (Ibid.)

Here, neither party contends Glynn could reasonably be 

categorized as totally disabled and unable to perform any job at 

Allergan with or without reasonable accommodation. That’s how 

he was categorized, however. The evidence demonstrates 

Perosino mistakenly believed Glynn transitioned to LTD, from 

which she erroneously concluded Glynn was unable to work, with 

or without an accommodation. As noted above, Perosino’s

termination letter to Glynn states in part, “your employment has 

ended on 07/20/16, due to your inability to return to work by a 

certain date with or without some reasonable workplace 

accommodation.” Glynn recognizes Allergan’s actual policy is to 

terminate employees only after they have applied, and been 

approved, for LTD benefits. That presumably is because a policy 

automatically requiring termination of a disabled employee who 

goes on LTD can only be lawful if the employee certifies he or she

is unable to work with or without an accommodation. (See e.g. 

Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 

Cal.App.4th 952, 976 [the plain language of Government Code 
9

section 12940(a) “clearly states that an employer is not liable for 

discharging a person with a disability because of the disability if 

the person is unable to perform the essential functions of the job 

with or without reasonable accommodations.”]; see also Hanson v. 

Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 226-227 

[“‘Reasonable accommodation does not require the employer to 

wait indefinitely for an employee’s medical condition to be 

corrected.’”].)

Even assuming Perosino’s mistakes were reasonable and 

made in good faith, a lack of animus does not preclude liability 

for a disability discrimination claim. (Wallace, supra, 245 

Cal.App.4th at p. 115.) Accordingly, we conclude Glynn provided 

direct evidence of disability discrimination—Allergan terminated

him because Perosino mistakenly believed he was totally disabled 

and unable to work. This is enough to defeat a motion for 

summary adjudication.

II. Allergan is Not Entitled to Summary Adjudication of

Glynn’s Fourth Cause of Action for Retaliation

The McDonnell Douglas three-stage framework applies to a 

FEHA retaliation cause of action. (Yanowitz v. L’Oreal USA, Inc. 

(2005) 36 Cal.4th 1028, 1042 (Yanowitz).) Under McDonnell 

Douglas, the plaintiff has the burden of establishing a prima facie 

case of retaliation by showing: (1) he engaged in “protected 

activity”; (2) he was subjected to an adverse employment action; 

and (3) there is a causal link between the protected activity and 

the adverse employment action. (Yanowitz, supra, 36 Cal.4th at 

p. 1052.) “Although an employee need not formally file a charge 

in order to qualify as being engaged in protected opposing 
10

activity, such activity must oppose activity the employee 

reasonably believes constitutes unlawful discrimination, and 

complaints about personal grievances or vague or conclusory 

remarks that fail to put an employer on notice as to what conduct 

it should investigate will not suffice to establish protected 

conduct.” (Id. at pp. 1046-1047, fn. omitted.) “‘The relevant 

question . . . is not whether a formal accusation of discrimination 

is made but whether the employee’s communications to the 

employer sufficiently convey the employee’s reasonable concerns 

that the employer has acted or is acting in an unlawful 

discriminatory manner.’” (Id. at p. 1047.)

Glynn relies on four emails to demonstrate he engaged in 

“protected activity” by complaining he was not being 

accommodated for his disability. For example, in an email dated 

May 19, 2016 to Perosino and other Allergan human resources 

employees, Glynn wrote, “Given the amount of time that has 

passed and the minimal response I have received from the entire 

Human Resources Department, I feel that my current condition 

has been ignored.” He further expressed, “I have identified 

several appropriate open positions on the Allergan Career Job 

Board over this time frame, but no action ever appears to take 

place.” In a June 8, 2016 email to Luwaine Defreese, an employee 

in Allergan’s Human Resources department, Glynn stated “I have 

been previously told by you . . . that disability is an alternative 

accommodation in lieu of work. It is not. I have been requesting 

to return to work for over four months. . . . . I had hoped that 

after months of being ignored this note would expedite my return 

to work. It hasn’t. The company cannot just allow me to languish 

on disability. [¶] I no longer believe you or the company are 
11

sincere in accommodating me and returning me to work in a 

comparable position. . . .” 

We disagree with the trial court’s conclusion that these 

emails do not constitute complaints. The emails would permit a

reasonable trier of fact to find Glynn sufficiently communicated 

to Allergan that he believed the way he was being treated (i.e. 

ignored and not accommodated for his disability) was 

discriminatory. The evidence also demonstrates Glynn was 

terminated two months after he complained. Temporal proximity 

between the protected activity and the adverse action is sufficient 

to shift the burden to the employer to articulate a 

nondiscriminatory reason for the adverse employment action. 

(See Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 

868.) Further, there are disputed issues of fact with respect to 

whether Allergan acted in good faith in attempting to find a job 

for Glynn within the company. Moreover, Allergan was 

immediately made aware of Perosino’s error in terminating 

Glynn contrary to Allergan’s policy, yet waited nine months to 

offer reinstatement. Based on these facts, a jury could infer the 

termination was retaliatory. 

As noted above, Allergan has not articulated a legitimate 

nondiscriminatory reason for Glynn’s termination. Although 

Perosino was mistaken in her application of Allergan’s policy, 

underlying her mistake was an unfounded determination that 

Glynn was completely disabled and unable to work with or 

without an accommodation. (Wallace, supra, 245 Cal.App.4th at 

p. 115 [“an employer’s mistaken belief that an employee is unable 

to . . . perform a job’s essential functions should be borne by the 

employer, not the employee . . .”].
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Thus, we conclude the trial court erred in granting 

Allergan’s motion for summary adjudication of Glynn’s FEHA 

retaliation cause of action. 

III. Glynn’s Fifth Cause of Action for Failure to Prevent 

Discrimination and Seventh Cause of Action for 

Wrongful Termination in Violation of Public Policy 

Should Survive Summary Adjudication for the Same 

Reasons as His Causes of Action for Discrimination 

and Retaliation

Allergan concedes Glynn’s causes of action for failure to 

prevent discrimination and wrongful termination are derivative 

of Glynn’s FEHA disability discrimination and retaliation causes 

of action. We therefore conclude Allergan is not entitled to

summary adjudication of these claims for the same reasons it is 

not entitled to summary adjudication of Glynn’s FEHA disability 

and retaliation claims. 
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DISPOSITION

Let a peremptory writ of mandate issue directing respondent 

court to vacate its March 11, 2019 order to the extent it granted 

summary adjudication of Glynn’s (1) first cause of action for 

disability discrimination, (2) fourth cause of action for retaliation, 

(3) fifth cause of action for failure to prevent discrimination, and 

(4) seventh cause of action for wrongful termination in violation 

of public policy, and enter a new order denying summary 

adjudication of those causes of action. The balance of the trial 

court’s March 11, 2019 order is unaffected by our decision, and 

we express no view on it at this time. Glynn is awarded his costs 

in this proceeding.

CERTIFIED FOR PUBLICATION

 CURREY, J.

WE CONCUR:

MANELLA, P. J.

WILLHITE, J.