Filed 3/3/14 Fussell v. Timec Co. CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or 

ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for 

purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

GARY FUSSELL,

Plaintiff and Appellant,

v.

TIMEC COMPANY, INC.,

Defendant and Respondent.

 B242823

 (Los Angeles County

 Super. Ct. No. TC024635)

APPEAL from a judgment of the Superior Court of Los Angeles County. 

Lynn D. Olson, Judge. Reversed. 

Purcell Law and Chris Purcell for Plaintiff and Appellant. 

Littler Mendelson, Lindbergh Porter and Oswald B. Cousins for Defendant 

and Respondent.

___________________________________
2

INTRODUCTION

The plaintiff filed a complaint alleging claims for disability discrimination and 

failure to accommodate. Later, over plaintiff’s opposition, the trial court granted the 

defendant employer’s motion for summary judgment. The plaintiff appeals. We reverse. 

FACTUAL AND PROCEDURAL SUMMARY

In September 2010, Gary Fussell filed a complaint against Timec Company, Inc. 

(Timec), asserting causes of action for (1) disability discrimination and (2) failure to 

accommodate disability.1 According to Fussell’s complaint, he worked as a pipe 

fabricator at Timec’s operations in Los Angeles County for about a year before his 

employment ended on November 2, 2009. According to Timec’s website, Fussell 

alleged, Timec is the leading provider of asset management, maintenance, turnaround, 

and small project services to the refining, oil and gas, mining, minerals processing, 

petrochemical and food industries. Timec’s “turnaround” services for the oil industry 

help refiners (such as Chevron) maintain and improve the efficiency and operations at 

their refineries. 

As stated on Timec’s website, Fussell noted, “Timec has established a reputation 

as an exemplary turnaround service provider with multiple disciplines executed 

simultaneously during shutdown periods. . . .” Timec’s website claimed that “[f]or the 

most efficient and well-managed turnaround solutions, companies consistently turn to 

Timec due to its extensive experience, outstanding safety performance and unparalleled 

results.” 

At all relevant times, Fussell alleged, he suffered from a physical disability that 

required him to wear a leg brace on his left leg. He “never concealed” this disability, and 

Timec hired him to perform turnaround work it was handling for Chevron at its El 

Segundo refinery. His duties often required Fussell to work on scaffolding or other 

 

1 Fussell alleged a third cause of action for negligence against Chevron U.S.A., but 

that claim is not at issue in this appeal. 
3

equipment at some distance above the ground. According to the complaint, Fussell 

performed his duties wearing his leg brace, and the leg brace did not limit his ability to 

work as a pipe fabricator. He was an exemplary employee, he alleged, receiving “5’s” 

except for one 4 on a scale of 1-5 on his performance reviews. 

On October 27, 2009, Fussell alleged, his leg brace broke and was then unusable. 

He immediately ordered a replacement from the brace manufacturer but was informed he 

would not receive the replacement for several days. He reported to work as scheduled 

the following day (October 28). He told his Timec supervisor his leg brace had broken 

and asked if he could be given “ground duty,” meaning work that did not require him to 

climb scaffolding or work above ground level, until his replacement brace arrived. 

Fussell was qualified to perform many types of ground duty for Timec, including but not 

limited to working in the machine shop. Fussell alleged Timec did not make a good faith 

effort to ascertain whether ground duty existed that he was qualified to perform until his 

brace arrived. He was told there was no work for him that day that did not involve 

working above ground level. 

Fussell alleged he reported for work again on October 29 and again asked if he 

could be given work at ground level. He still had not received his leg brace. His 

supervisor again said the only jobs available for him that day required that he climb 

scaffolding and work off the ground. Again, Fussell alleged Timec did not make a good 

faith effort to ascertain whether ground duty existed that he was qualified to perform until 

his brace arrived. Because he believed he would not be paid if he did not work, he 

decided to attempt to work on the scaffolding. While working on the scaffolding, much 

of which was covered with oil and was extremely slippery, Fussell alleged he slipped and 

fell about 8 to 12 feet, landing on his back and suffering injuries. He saw a doctor and 

was referred for an MRI. On October 30, Brad Glass, a Timec executive whose 

responsibilities included safety standards and practices at the Chevron refinery 

turnaround, authorized Fussell’s MRI, and it revealed significant back injuries. 
4

On October 31, Fussell spoke with Glass about the results of his medical and exam 

and said he would be filing a Worker’s Compensation claim because of his injuries. 

Glass told Fussell not to come to work the following day (November 1), indicating the 

crew would not be working that day (a Sunday). Fussell also spoke with Bill Savoy, a 

Timec Vice President who was in charge of operations at the Carson site, who told 

Fussell: “‘[I]f I had known you wore a leg brace, you would never have been working for 

me’ at Timec.” On November 1, contrary to what Glass had told him, Fussell learned the 

Timec crew did in fact work that day. 

Although he was in pain from the injuries he suffered in the October 29 fall, 

Fussell said he returned to work on November 2, intending to request ground duty. He 

saw Glass and asked Glass why he had lied about the crew not working the day before. 

Glass did not answer the question but told Fussell to wait in the office. Shortly thereafter, 

Fussell was told he was being terminated, effective immediately. He was then asked to 

sign a “Job Complete” form. The purpose of such a form was to indicate Fussell was 

being terminated because the work he had been hired to perform had been completed, but 

that representation was false. Timec pressured Fussell to sign the form by indicating his 

medical benefits would be in jeopardy if he did not sign the form. On information and 

belief, Fussell alleged (1) Timec pressured him to sign the form so it could claim he was 

no longer working on the Chevron turnaround because his job was completed and not 

because he was injured in an accident on the job; and (2) Timec intended to use the 

signed “Job Complete” form to justify not reporting Fussell’s accident to Chevron 

because, if reported, it would have to be considered a “lost time” accident which could 

adversely affect Timec’s standing with Chevron. Because he was under duress and in 

fear of losing his benefits, Fussell signed the Job Complete form. Before leaving the El 

Segundo facility that day, Fussell asked to speak with a Chevron representative. Timec 

informed him he was not allowed to speak to anyone from Chevron. A security guard 

escorted him to his vehicle and ordered to wait there for his termination papers. 
5

Fussell alleged Timec terminated him on the basis of his disability and in 

retaliation for his request for accommodation because of that disability and in retaliation 

for his stated intention to file a workers compensation claim, in violation of the Fair 

Employment and Housing Act (FEHA, Gov. Code § 12940 et seq.), and to keep him 

from reporting his accident to Chevron. Fussell said Timec’s actions “in wrongfully 

terminating [him], and otherwise discriminating against him, as alleged above,” were a 

substantial factor in causing his various damages. (Italics added.) As a further direct and 

proximate result of the “aforesaid acts of discrimination on the basis of Fussell’s physical 

disability by [Timec],” Fussell had to employ doctors, mental health care providers and 

other medical personnel to examine treat and care for him. (Fussell alleged he had filed a 

complaint with the Department of Fair Employment and Housing (DFEH) alleging he 

“had suffered discrimination and was terminated, on the basis of his disability as 

described hereinabove, and was harassed and was denied an accommodation for his 

physical disability, [and was] retaliated [against] for requesting an accommodation,” 

and subsequently received a right-to-sue notice.) (Italics added.) 

From on or about October 28, 2009, Fussell further alleged, Timec discriminated 

against him and harassed him on the basis of his physical disability by conduct including 

but not limited to refusing to make any attempt to accommodate his physical disability 

and then terminating him from his employment while he was temporarily unable to 

perform his duties, in violation of his rights and without any legitimate business purpose 

or reason. 

Timec answered, conducted discovery and later filed a motion for summary 

judgment or adjudication. In its notice of motion, Timec asserted it was entitled to 

summary adjudication of Fussell’s first cause of action for disability discrimination 

because (1) “it is undisputed that Fussell was not qualified to work as a 

Pipefitter/Fabricator at the time of his alleged termination and therefore cannot make a 

prima facie case of disability discrimination[;]” and (2) “it is undisputed that Fussell was 

laid off for a legitimate non-discriminatory reasons and there is no evidence of pretext.” 

(Italics added.) Timec claimed entitlement to summary adjudication of Fussell’s second 
6

cause of action for failure to accommodate because (1) “it is undisputed that Timec did 

offer Fussell a reasonable accommodation for his alleged disability[;]” and (2) “it is 

preempted by Workers Compensation Exclusivity.”2 

Fussell opposed Timec’s motion. He said Timec’s first argument (that Fussell had 

no claim for disability discrimination because he was unqualified to work as a pipefitter 

at the time of his termination) was disingenuous because Timec ignored the fact Fussell 

had been injured because of Timec’s refusal to accommodate his temporary disability 

which caused his long-term disability. Similarly, Timec’s second argument (that Fussell 

was laid off for a legitimate non-discriminatory reason) was flawed given the fact Fussell 

was terminated and not laid off. As for his second cause of action for failure to 

accommodate his physical disability, Fussell cited to evidence that he could have 

performed “ground work” but was not permitted to do so, and that in the construction 

industry, telling Fussell he could either go work up on the scaffolding or “go home” was 

not an offer of an accommodation but rather a threat to his job and again, because 

Timec’s failure to accommodate his disability had caused his injury, workers 

compensation exclusivity did not bar his claim. 

Timec’s Evidence That Fussell Was Not Qualified to Work as a Pipefitter/Fabricator in 

Support of Its Motion for Summary Adjudication of Fussell’s First Cause of Action for 

Disability Discrimination.

Timec presented the following undisputed evidence in support of its claim it was 

entitled to “summary judgment” (adjudication) of Fussell’s first cause of action for 

 

2 Timec had also argued it was entitled to summary judgment of both Fussell’s first 

and second causes of action because he failed to exhaust his administrative remedies 

under the applicable collective bargaining agreement. However, in opposing Timec’s 

motion, Fussell presented evidence, including testimony from Timec’s own employees 

suggesting the job was not a “union job” and no collective bargaining agreement applied. 

In addition, Fussell noted the agreement Timec submitted specified that any arbitration 

award entered as a result of the grievance procedure was nonbinding on the company. 

The trial court did not address this argument, and Timec has not reasserted it on appeal. 
7

disability discrimination because “Fussell was not qualified to work as a 

Pipefitter/Fabricator at the time of his alleged termination and therefore cannot make a 

prima facie case of disability discrimination[:]” Fussell’s duties as Pipefitter/Fabricator 

were following blueprints for piping layouts and calculating the necessary piping, 

fabricating and laying out pipes, demolishing piping, fitting up and installing various 

piping systems, welding, and assisting other workers or helpers; the job is very physically 

demanding, requiring that the worker be capable of working in a fast-paced environment, 

working outdoors in all conditions, bending, squatting and kneeling to access tight 

situations; climbing ladders and scaffolds and working at heights; Fussell claimed he fell 

on October 29, 2009, injuring his back; he was treated at an on-site clinic and then went 

to an off-site clinic in Long Beach for x-rays; he spent the remainder of the day either 

getting medical treatment or at home; he experienced both dull and sharp pain, especially 

if he twisted or bent down and was sore and bruised; he could not have performed 

Pipefitter/Fabricator duties on October 29, October 30, October 31, or November 1, 2009, 

or any day thereafter, and his doctors have told him he cannot perform any type of work, 

including light duty work, and he has not been cleared to return to work at all.3 

Timec’s Evidence Fussell Was Laid Off for Legitimate Non-Discriminatory Reasons (and 

There Is No Evidence of Pretext) in Support of Its Motion for Summary Adjudication of 

Fussell’s First Cause of Action for Disability Discrimination.

Timec presented evidence it had policies in place prohibiting discrimination 

against employees with disabilities and set forth procedures for providing reasonable 

accommodations for employees with disabilities; turnarounds are staffed seven days a 

week; Timec works with the customer to determine what type of work needs to be done, 

what types and levels of skilled workers will be needed and how many people will be 

needed at various stages of the project, starting with a relatively small crew and adding 

workers until it reaches a peak, continuously reviewing and evaluating manpower needs 

throughout the project; Fussell had worked as a pipefitter or fabricator in the oil industry 

 

3 Fussell added that Timec told him not to report for work on November 1, 2009. 
8

since finishing high school in 1998; from 2000 until 2009, Fussell moved around between 

jobs and employers and refineries around the country; many of his prior jobs were 

turnarounds that were temporary and varied in length (from weeks to months); when 

Timec hired him in 2009, Fussell signed an “Employment Clarification” that stated work 

was temporary and depended on the client’s needs such that no position was permanent 

and assignments were often for a short duration; Fussell was hired to work as a fabricator 

or pipefitter (“generally the same thing”); on October 26, Timec laid off nine employees 

from the Chevron project, including four with Fussell’s job title (Fabricator 2) and two 

Fabricator 1 workers; on October 28, another seven were released; on November 1, 38 

employees were let go from the Chevron job, including 15 other Fabricator 2 workers and 

6 Fabricator 1 workers; and laid off employees were still considered employed and 

eligible for reassignment if and when they were interested and able to work again. 

Timec also said it was undisputed that Fussell was laid off—not terminated—from 

his Chevron assignment on November 2, 2009, as part of a reduction in force, despite the 

fact (Timec superintendent) Tracy Shirley “erroneously stated ‘job completion’ (code 

“03”) as the reason,” stating as a further undisputed fact that “Shirley appears not to have 

understood the distinction between the ‘01-Reduction in Force’ reason and the ’03-Job 

Complete’ reason.” 

In opposing Timec’s motion in this regard (and in addition to objecting to Timec’s 

characterization of Shirley’s actions, knowledge and intentions as speculative, lacking 

personal knowledge and lacking foundation), Fussell responded with evidence he said 

established he was fired, and not laid off. Not only did the form on which Timec relied 

shows that Shirley wrote the words “Job Complete” and therefore did not simply make a 

coding mistake as Timec claimed, but Fussell had also testified at his deposition that 

when he objected to signing the form and questioned Shirley about the reason given, 

Shirley told him “[his] job was over[;]” Shirley specifically stated, “‘Because your job’s 

completed.’” Moreover, as further evidence he was fired (and not laid off), Fussell cited 

his deposition testimony that, after he was injured, Timec Vice President Bill Savoy 

asked him what happened, and Fussell told him “[his] leg brace was broke at the time,” 
9

and because he had picked the brace up that Friday, showed it to him, saying, “This is my 

AFO [ankle foot orthotic (AFO)—the leg brace Fussell wore].” Fussell testified Savoy 

looked at it and said, “‘Well, if I known you was handicapped [sic], you wouldn’t be 

working for me.’” 

Timec’s Additional Undisputed Evidence Timec Did Offer Fussell a Reasonable 

Accommodation in Support of Its Motion for Summary Adjudication of Fussell’s Second 

Cause of Action for Failure to Accommodate.

Before working for Timec, Fussell had suffered a workplace injury in 2008 which 

resulted in a condition called compartment syndrome which caused “drop foot” in his left 

leg; consequently, he wore an AFO for this condition. When he interviewed for a 

position with Timec, recruiter Alex Perez noticed and asked about the orthotic, and 

Fussell told him what it was. He did not ask for any accommodations. When Fussell was 

hired for the Chevron turnaround, he was assigned to a crew responsible for demolishing 

and replacing a very long water pipe that was more than 20 feet above ground, and 

workers had to climb scaffolds and ladders to access it. When Fussell’s AFO broke on 

October 25, 2009, he took it to the manufacturer for repair. Fussell’s supervisor Tracy 

Shirley was helpful (Fussell’s response included a reference to his deposition testimony 

that Shirley first attempted (unsuccessfully) to repair the AFO himself), and he allowed 

Fussell to work in the tool room handing out tools (which was not skilled work) for the 

rest of the day on October 25, October 26 and October 27. On October 28, Shirley told 

Fussell he could no longer work in the tool room and needed to get out in the field. 

Fussell told Shirley his AFO was not fixed yet and asked if there was any ground-level 

work he could do. Shirley told Fussell to ask the foreman if there was any such work, the 

foreman said there was not, and Shirley told Fussell, “Well, you can go work up in the 

racks or you can go home.” Fussell worked on the scaffolding and pipe rack without 
10

incident that day. The next day (October 29), Fussell’s AFO was not fixed yet, but 

Fussell worked on the pipe again “because he had a family to support.”4 

In opposing Timec’s motion as to this issue, Fussell pointed to his deposition 

testimony that when Shirley said “Go home,” it was a “construction term,” a “general 

term” that meant “Pack your stuff up and go home.” Fussell testified Shirley “had an 

attitude,” was “being snappy; and just by the way he said if I didn’t get over there and do 

what they had work to be done [sic], to go home;” Fussell understood Shirley to mean 

“he was threatened for his job.” Fussell noted Timec’s counsel had specifically asked 

him at this deposition: “If he [Shirley] had said, ‘Look, you can take a couple days off of 

work without pay and come back in here when your AFO is ready,’ would you have done 

that?” Fussell answered: “I would have done that.”5 Timec’s counsel then asked 

Fussell: “Isn’t it possible that’s what he was suggesting you do when he told you to go 

home?” Fussell responded: “No,” and went on to describe Shirley’s “attitude” and 

manner when the two men spoke. 

Timec’s Additional Undisputed Evidence in Support of Its Motion for Summary 

Adjudication of Fussell’s Second Cause of Action for Failure to Accommodate Based on 

Workers Compensation Exclusivity.

Fussell testified that while he was working on October 28, 2009, he observed a 

large amount of oil on the scaffolding where he was supposed to work the next day. It 

was “very visible” and could be seen from the ground. He “wasn’t surprised” given that 

he was working at an oil refinery. He testified he was “concerned” the oil would be 

dangerous for him and there would be a “risk” he would “lose [his] footing” and fall from 

the scaffolding. Earlier in the day on October 29, Fussell climbed the scaffold to where 

 

4 Timec also cited deposition testimony from its Human Resources Manager (Susan 

Moats), stating Shirley did not have the authority to terminate Fussell. In response, 

Fussell cited Shirley’s deposition testimony, stating he “was with everybody that gets 

released by Timec,” as he (“or Pete”) “had to sign the paperwork.” 

5 According to the record, Fussell’s AFO was ready on October 30, 2009 (the day 

after his injury at Chevron). 
11

the oil was to look over the job they were to do. He worked on the pipe despite his 

concerns because “I’ve got a family to support.” That day, as he was climbing onto the 

pipe from the scaffold, Fussell slipped and fell about four feet and landed on his back, 

wedged between two pipes. He testified his fall was most likely caused by slipping on oil 

rather than the fact he did not have his AFO, and he told people after his fall he had 

slipped on oil. Fussell filed a workers compensation claim relating to his October 29, 

2009 injury and has received workers compensation benefits for his injury at Timec. 

In opposition, Fussell again referred to his testimony he believed he was faced 

with a choice between working on the scaffold or being fired if he did not work on the 

pipe. Also, he referred to his deposition testimony when he was asked to describe how he 

was injured: He testified he “really didn’t know,” but said he “remember[ed:]” “I led 

with my left foot [the injured one], swung my right foot over to go down; and then next 

thing you know I slipped.” Pressed further as to whether he had a “specific recollection” 

that his right leg was the one that had slipped, he responded: “My left leg.” The “leg that 

was on the scaffolding” was his left leg. He led with his left leg. The “last foot that was 

on the scaffolding” was his “[l]eft leg.” 

Fussell added evidence that after he was diagnosed with compartment syndrome, 

he wore his AFO to provide stability for his left leg and ankle to prevent fluid from 

collecting and causing swelling; he “d[id]n’t really have much feeling” in parts of his left 

leg. 

After hearing argument, the trial court read its tentative ruling into the record, 

indicating it would become the court’s order.6 The written order ultimately executed by 

 

6 In his Reply Brief, Fussell says there are discrepancies between the trial court’s 

actual ruling as set forth in the reporter’s transcript and the order Timec’s counsel 

prepared, emphasizing that the order Timec drafted included evidentiary rulings the trial 

court never made. (The changes evident in the written order (additions, when compared 

to the court’s ruling as set forth in the reporter’s transcript) are italicized in the text 

quoted above.) According to the reporter’s transcript, the trial court directed Timec (as 

the moving party) to prepare the order, and the order (as modified) bears the trial court’s 
12

the court reads as follows: “The defendant’s opposed motion for summary judgment is 

granted. 

“Plaintiff was injured while working as a pipefitter at a refinery on a turnaround 

assignment. Plaintiff slipped and fell from a scaffold, resulting in injuries. His 

employment was terminated shortly thereafter. According to plaintiff, at the time of the 

incident, defendant knew that plaintiff, who has compartment syndrome, was not wearing 

his ankle orthotic. 

“Defendant provides evidence that the plaintiff’s fall and injury was caused by oil 

on the work surface, not by the lack of the ankle orthotic. Plaintiff testified that the slip 

and fall was caused by the oily surface. (See deposition at 141:15-22 and 149:20-

150:21.) He also testified that he told others that he had slipped on oil. (See deposition 

at 91:14-20.)

“Plaintiff provides no admissible evidence indicating that the lack of the ankle 

orthotic caused his fall. At best, [p]laintiff offers testimony that he did not know whether 

the lack of an orthotic could have contributed to his fall. (Depo 145:5-24.) This 

testimony precedes the much clearer testimony on page 150 of the deposition that he 

believes the oil was the cause. As the undisputed evidence indicates that the oil, and not 

the failure to accommodate the disability was the cause of plaintiff’s injury and damages, 

plaintiff’s causes of action are barred by the Worker’s Compensation exclusivity rule. 

(Undisputed Facts 91-99, 101-104.) The Court sustains defendant’s objections to Exhibit 

H to the declaration of Chris Purcell [the October 29, 2009 incident report Fussell’s 

attorney said Timec had produced in discovery, in which Timec safety officer Brad Glass 

wrote Fussell normally wore an ankle brace to support his left ankle and foot but was not 

 

signature; Fussell does not identify and there is no indication of any objection made to 

the content of the written order in the trial court. In its respondent’s appendix, Timec has 

submitted a copy of a letter with the proposed order (as modified to include Timec’s 

“unilateral[]” additions) as an attachment, requesting that Fussell communicate any 

objections, and indicating a failure to respond within five days will be deemed an 

approval, along with a FedEx delivery confirmation documenting receipt by Fussell’s 

counsel on March 21, 2009—20 days before the trial court signed and filed the order (and 

Timec served it on Fussell). 
13

wearing it that day “which according to Fussell was why he lost his footing and slipped”] 

and to the Declaration of Jerry Hildreth [Fussell’s safety expert] and notes that such 

evidence was not cited in response to Undisputed Facts 91-99, 101-104.[

7] 

“Finally, the undisputed evidence indicates that as of the date when plaintiff’s 

employment was terminated, plaintiff was no longer a qualified employee. He no longer 

could (and he still cannot) perform essential job duties. (Undisputed Facts 10-22).” 

Fussell appeals from the judgment subsequently entered. 

DISCUSSION

Regarding his cause of action for failure to accommodate, Fussell says triable 

issues of fact exist as to (1) Timec’s efforts in the interactive process and (2) the 

adequacy of the accommodation Timec allowed for Fussell’s known disability; as to his 

disability discrimination cause of action, Fussell says triable issues exist as to whether (1) 

he was fired because of his disability, (2) whether he was a qualified individual and (3) 

whether he was precluded from work. In addition, he says neither worker’s 

compensation exclusivity nor the collective bargaining agreement bar either of his causes 

of action.8

 

7 We conclude the judgment is properly reversed without consideration of any 

purportedly excluded evidence but note that Timec itself presented evidence 

acknowledging Fussell had identified the absence of his AFO as causing his injury (in 

answering Savoy, for example, and leading to Savoy’s alleged statement he would never 

have hired Fussell had he known of his disability). (And see Levy-Zentner Co. v. 

Southern Pac. Transp. Co. (1977) 74 Cal.App.3d 762, 784 [finding admissible 

employer’s incident report including employee’s documentation of plaintiff’s stated 

cause of injury].)

8 Ordinarily, union members seeking redress for disputes within the scope of their 

collective bargaining agreement (CBA) must follow the grievance procedures to which 

the employer and the union have agreed, but collectively-bargained grievance procedures 

need not be exhausted in certain cases, including an employee’s statutory discrimination 

claims against the employer, unless the CBA contains a “clear and unmistakable” waiver 

of the right to sue on such claims. (Chin et al., Cal. Practice Guide: Employment 

Litigation (The Rutter Group 2012) ¶¶ 16:345 to 16:359, pp. 16-52 to 16-54; and see 
14

Standard of Review

“We review the trial court’s grant of summary judgment de novo and decide 

independently whether the facts not subject to triable dispute warrant judgment for the 

moving party as a matter of law.” (Raine v. City of Burbank (2006), 135 Cal.App.4th 

1215, 1221 (Raine), citing Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1348; Code 

Civ. Proc., § 437c, subd. (c).)

FEHA’s Accommodation Requirements

As we noted in Raine, supra, 135 Cal.App.4th 1215, “The California Fair 

Employment Practice Act (former Lab. Code, § 1410 et seq.) enacted in 1959 and 

recodified and included in FEHA in 1980 (Stat. 1980, ch. 992, § 4, p. 3140 et seq.) 

established that freedom from discrimination in employment on specific grounds, 

including disability, is a civil right and that such discrimination violates public policy. 

(See Peralta Community College Dist. v. Fair Employment & Housing Com. (1990) 52 

Cal.3d 40, 44 [276 Cal. Rptr. 114, 801 P.2d 357]; Dyna-Med, Inc. v. Fair Employment & 

Housing Com. (1987) 43 Cal.3d 1379 [241 Cal. Rptr. 67, 743 P.2d 1323].) In 1992 the 

Legislature amended FEHA to incorporate as part of state law the protections adopted by 

Congress in the federal ADA.[

9]

 

Ortega v. Contra Costa Community College Dist. (2007) 156 Cal.App.4th 1073, 1085 

[addressing FEHA claim].) Here, according to the CBA Timec sought to enforce, any 

arbitration would be “non-binding” (and the remaining CBA pages Timec cited in 

support of its motion in the trial court—pages 23 and 24 of “Article Thirteen—Grievance 

and Arbitration Procedure” were not provided in the record). Although Fussell addressed 

Timec’s collective bargaining argument in his opening brief, Timec (like the trial court) 

has ignored it. Accordingly, leaving to one side any factual dispute regarding the 

application of the CBA to Fussell’s employment in the first instance, it appears Timec 

has abandoned its argument it was entitled to summary judgment on the basis of Fussell’s 

failure to exhaust collective bargaining grievance procedures, the record does not contain

evidence in support of such an argument, and Timec was not entitled to summary 

judgment on this ground under the applicable law in any event. 

9 “The Legislature declared its intent ‘to strengthen California law in areas where it 

is weaker than the Americans with Disabilities Act of 1990 (Public Law 101-336) and to 

retain California law when it provides more protection for individuals with disabilities 
15

“As currently written FEHA prohibits as an unlawful employment practice, unless 

based upon a bona fide occupational qualification, the discharge of an employee because 

of the employee’s physical disability (§ 12940, subd. (a)) except when the employee’s 

disability renders the employee ‘unable to perform his or her essential duties[

10] even 

with reasonable accommodations . . . .’ (§ 12940, subd. (a)(1); see City of Moorpark v. 

Superior Court (1998) 18 Cal.4th 1143, 1160 [77 Cal. Rptr. 2d 445, 959 P.2d 752] 

[FEHA recognizes the fact employer may have valid reasons to treat disabled employees 

differently from nondisabled employees if the disabled employee is unable to perform 

essential duties even with reasonable accommodation].) It is also unlawful, and 

separately actionable under FEHA, for an employer ‘to fail to make reasonable 

accommodation for the known physical or mental disability of an applicant or employee’

unless the accommodation would cause ‘undue hardship’ to the employer. (§ 12940, 

subd. (m); see Spitzer v. Good Guys, Inc. (2000) 80 Cal.App.4th 1376, 1383 [96 Cal. 

Rptr. 2d 236] (Spitzer).) 

“Generally, ‘“[t]he employee bears the burden of giving the employer notice of the 

disability. [Citation.] This notice then triggers the employer’s burden to take ‘positive 

steps’ to accommodate the employee’s limitations. . . . [¶] . . . The employee, of course, 

retains a duty to cooperate with the employer’s efforts by explaining [his or] her 

disability and qualifications. [Citation.] Reasonable accommodation thus envisions an 

exchange between employer and employee where each seeks and shares information to 

achieve the best match between the employer’s capabilities and available positions.’

[Citation.]’ (Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 950 [62 Cal. 

Rptr. 2d 142].)” (Raine, supra, 135 Cal.App.4th at pp. 1221-1222.) 

 

than the Americans with Disabilities Act of 1990.’ (Stats. 1992, ch. 913, § 1, p. 4282.)” 

(Raine v. City of Burbank (2006) 135 Cal.App.4th 1215, 1222, fn. 3.) 

10 “‘Essential duties’ means the ‘fundamental job duties of the employment position 

the individual with a disability holds or desires.’ (§ 12926, subd. (f).)” (Raine, supra, 

135 Cal.App.4th at p. 1222, fn. 4.) 
16

A Triable Issue of Material Fact Exists as to Whether Timec Offered Fussell a 

Reasonable Accommodation.

Timec does not dispute that it knew of Fussell’s disability (compartment syndrome 

or “drop foot”) for which he wore his AFO. Indeed, Timec’s recruiter (Perez) testified 

that he noticed Fussell’s limp, discussed it with Fussell who showed Perez his AFO and 

Fussell told Perez he could perform all job responsibilities as long as he wore the brace. 

Furthermore, Timec knew Fussell’s AFO had broken as Fussell’s supervisor (Shirley) 

attempted to fix it but was unsuccessful, and Fussell then took it to the manufacturer for 

repair. Because Timec had notice of Fussell’s disability and resulting need for his AFO, 

such notice triggered Timec’s burden to take “positive steps” to accommodate Fussell’s 

limitations. (Prilliman, supra,53 Cal.App.4th at p. 950 [“Reasonable accommodation 

thus envisions an exchange between employer and employee where each seeks and shares 

information to achieve the best match between the employer’s capabilities and available 

positions”].) 

Here, Timec assigned Fussell to work in the tool room for the remainder of the day 

on October 25, October 26 and October 27. On October 28, however, according to 

Fussell’s testimony, Shirley told Fussell he could no longer work in the tool room and 

needed to get out in the field. According to Fussell’s deposition testimony, although 

Fussell told Shirley his brace was not ready yet and asked for ground work, Shirley told 

Fussell: “[Y]ou can go work up in the racks or you can go home.” Fussell further 

testified, based on the change in Shirley’s “attitude”—like he was “ticked off”—and 

Fussell’s understanding of “go home” as a “general” “construction term” meaning “Pack 

your stuff and go home,” Fussell understood Shirley to mean “he was threatened for his 

job” if he “didn’t get over there and do what they had work to be done [sic].” 

Timec argued that Shirley’s statements could only mean Timec offered Fussell the 

option of going home until his brace was repaired, and that doing so was a “reasonable 

accommodation.” It is true that “FEHA does not obligate an employer to choose the best 

accommodation or the specific accommodation a disabled employee or applicant seeks. 

(Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 228 [87 Cal. Rptr. 2d 487].) It 
17

requires only that the accommodation chosen be ‘reasonable.’ (§ 12940, subds. (a) & 

(m).) Although FEHA does not define what constitutes ‘reasonable accommodation’ in 

every instance, examples provided in the statute itself and the regulations governing its 

implementation include job restructuring, part-time or modified work schedules or 

‘reassignment to a vacant position.’ (§ 12926, subd. (n)(2); Cal. Code Regs., tit. 2, § 

7293.9, subd. (a)(2); see also Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 

266 [102 Cal. Rptr. 2d 55] (Jensen).)” (Raine, supra, 135 Cal.App.4th at p. 1222.) 

“The question of reasonable accommodation is ordinarily a question of fact . . . .” 

(Raine, supra, 135 Cal.App.4th at p. 1227, fn. 11; Bell v. Wells Fargo Bank (1998) 62 

Cal.App.4th 1382, 1389.) On this record, although a jury could believe Timec’s assertion 

that Shirley offered Fussell the option of going home but Fussell chose to work on the 

scaffolding without it because he did not want to lose money (see Jensen, supra, 85 

Cal.App.4th at p. 263 [“Holding a job open for a disabled employee who needs time to 

recuperate or heal is in itself a form of reasonable accommodation and may be all that is 

required where it appears likely that the employee will be able to return to an existing 

position at some time in the foreseeable future. [Citation.]”]), a jury could also conclude 

(as Fussell maintains) Shirley’s comments communicated to Fussell that his only options 

were to climb the scaffolding and work above ground without his AFO or lose his job. In 

fact, Timec’s own separate statement acknowledges and relies upon Fussell’s testimony 

that on October 28, 2009, Shirley told Fussell he could no longer work in the tool room 

and needed to be out in the field—with full knowledge that Fussell’s AFO was still not 

fixed and Fussell had requested ground level work at the time. Therefore, a triable issue 

of material fact exists as to whether Timec offered Fussell a reasonable 

accommodation.11 (Bell v. Wells Fargo Bank (1999) 62 Cal.App.4th 1382, 1389, fn. 6.) 

 

11 Because we find triable issues of material fact exist and therefore preclude 

summary adjudication of Fussell’s failure to accommodate claim, we need not address 

the issue of whether Timec failed to engage in the interactive process. 
18

Fussell’s Claims Are Not Barred by Worker’s Compensation Exclusivity.12

Subdivision (a) of Labor Code section 3600 provides that, subject to certain 

further specified exceptions and conditions, workers’ compensation liability, “in lieu of 

any other liability whatsoever[,]” will exist against an employer for any injury sustained 

by its employees arising out of and in the course of their employment. As relevant, the 

statute specifies: “Liability for the compensation provided by this division, in lieu of any 

other liability whatsoever to any person . . . shall, without regard to negligence exist 

against an employer for any injury sustained by [its] employees arising out of and in the 

course of the employment and for the death of any employee if the injury proximately 

causes death, in those cases where the following conditions of compensation 

concur . . . .” (Lab. Code, § 3600, subd. (a).) The conditions of compensation applicable 

here include: “(1) Where, at the time of the injury, both the employer and the employee 

are subject to the compensation provisions of this division. [¶] (2) Where, at the time of 

the injury, the employee is performing service growing out of and incidental to his or her 

employment and is acting within the course of his or her employment. [¶] (3) Where the 

injury is proximately caused by the employment, either with or without negligence.” 

(Ibid.)

Subdivision (a) of Labor Code section 3602 then provides: “Where the conditions 

of compensation set forth in Section 3600 concur, the right to recover compensation 

is . . . the sole and exclusive remedy of the employee . . . against the employer. . . .” 

Proceedings “[f]or the recovery of compensation, or concerning any right or liability 

arising out of or incidental thereto” shall be “instituted before the [workers’ 

compensation] appeals board and not elsewhere, except as otherwise provided in Division 

4 . . . .” (Lab. Code, § 5300, subd. (a).) 

 

12 Although Timec only sought summary adjudication of Fussell’s failure to 

accommodate cause of action on this ground, the trial court identified workers’ 

compensation exclusivity in its order granting summary judgment. In any case, the same 

reasoning applies to both of Fussell’s claims against Timec.
19

As the court in Huffman v. Interstate Brands Corp. (2004) 121 Cal.App.4th 679 

(Huffman) noted: “The underlying purpose of these exclusivity provisions is the 

presumed “‘compensation bargain.’” (Shoemaker v. Myers (1990) 52 Cal.3d 1, 16 [276 

Cal. Rptr. 303, 801 P.2d 1054].) The bargain according to the Shoemaker court is that 

‘the employer assumes liability for industrial personal injury or death without regard to 

fault in exchange for limitations on the amount of that liability. The employee is afforded 

relatively swift and certain payment of benefits to cure or relieve the effects of industrial 

injury without having to prove fault but, in exchange, gives up the wider range of 

damages potentially available in tort. [Citations.]’ (Ibid.)

“Certain types of injurious employer misconduct, however, remain outside the 

bargain. ‘There are some instances in which, although the injury arose in the course of 

employment, the employer engaging in that conduct ‘“stepped out of [its] proper role[]”’ 

or engaged in conduct of ‘“questionable relationship to the employment.”’ [Citations.]’

(Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701, 708 [30 Cal. Rptr. 2d 18, 872 P.2d 559].)” 

(Huffman, supra, 121 Cal.App.4th at pp. 693-694.) 

“Employer actions that violate a fundamental public policy . . . are exempt from 

the exclusive remedy provisions of the [Worker’s Compensation Act] WCA because they 

‘cannot under any reasonable viewpoint be considered a “normal part of the employment 

relationship.”’ (Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1100 [4 Cal. Rptr. 2d 

874, 824 P.2d 680], overruled on other grounds in Green v. Ralee Engineering Co. 

(1998) 19 Cal.4th 66, 80, fn. 6 [78 Cal. Rptr. 2d 16, 960 P.2d 1046]; see also City of 

Moorpark v. Superior Court (1998) 18 Cal.4th 1143, 1154–1155 [77 Cal. Rptr. 2d 445, 

959 P.2d 752].)” (Huffman, supra, 121 Cal.App.4th at p. 695.) It is “well settled” that 

FEHA claims are exempt from the exclusivity provisions. (Id. at p. 695, fn. 7.) 

In Huffman, as the jury had found the motive for the plaintiff’s demotion was age 

discrimination—taking it outside the scope of the compensation bargain—the issue for 

the court’s determination was “the scope of the exclusive remedy provisions of the WCA 

when a subsequent workplace injury follows an allegedly unlawful demotion that is 

concededly outside the compensation bargain.” (Huffman, supra, 121 Cal.App.4th at p. 
20

695 & fn. 8.) The case presented a “new ‘twist’ in determining the scope of the 

exclusivity provision when two acts, one of which is exempt from the exclusivity 

provisions, might be the cause of the alleged injury.” (Id. at p. 695.) As Huffman was 

the “first case to address this issue[,]” each of the parties proffered proposed tests for 

resolving the issue, but the court rejected both in favor of the “traditional tort ‘substantial 

factor’ test.” (Id. at p. 696.) 

“We conclude that the better approach to determine whether the exclusivity 

provisions apply to a subsequent injury following an unlawful act, such as a 

discriminatory demotion, is to determine whether the discriminatory conduct (i.e., the 

demotion) was a substantial factor in the subsequent industrial [knee] injury. We do not 

attempt to define the word ‘substantial’ but note that the conduct must have an effect in 

producing the injury or harm to regard it as a cause and that it must be more than slight, 

theoretical, trivial, or negligible to be a substantial factor.[] “‘If the conduct which is 

claimed to have caused the injury had nothing at all to do with the injuries, it could not be 

said that the conduct was a factor, let alone a substantial factor, in the production of the 

injuries.” [Citation.]’ (Mitchell v. Gonzales (1991) 54 Cal.3d 1041, 1052 [1 Cal. Rptr. 

2d 913, 819 P.2d 872].)” (Huffman, supra, 121 Cal.App.4th at p. 696, footnote omitted.) 

“In sum, we conclude that in order to be exempt from the exclusive remedy provisions of 

the WCA the unlawful act must be a substantial factor in the subsequent injury.” (Id. at 

p. 698.) 

Applying the substantial factor test to the facts in Huffman and emphasizing that 

the plaintiff (Huffman) had alleged and the jury believed the employer (IBC) unlawfully 

demoted Huffman because of his age, the court concluded the plaintiff’s alleged unlawful 

demotion was not a substantial factor in his subsequent knee injury. (Huffman, supra, 

121 Cal.App.4th at p. 698.) “Had Huffman alleged a disability discrimination or failureto-accommodate claim,” the Huffman court observed, “there is no doubt” his damages 

arising from his knee injury would have been exempt from the exclusive remedy 

provisions. (Ibid., italics added.) 
21

“In such a case, unlike the one presented, the unlawful demotion to a position in 

which the employer knew the employee could not perform because of a physical disability 

would be a substantial factor in subsequent workplace injury sustained by that employee 

while attempting to perform his or her job duties. We emphasize that is not the situation 

here. Huffman claimed, and the jury believed, that he had been demoted because of his 

age and replaced by a younger man. Although Huffman told [supervisors] Cooper and 

Laughlin that he could not meet the physical requirements of a division sales manager, he 

assumed that position and performed that job until the spring of 2000. Huffman then 

sought medical attention for his knee injury and in August 2000, he reported the injury to 

IBC. The injury Huffman sustained was because of the physical requirements of the job, 

which all division sales managers were required to perform, not because he was 

unlawfully replaced as a district manager by a younger man. Thus, IBC’s decision to 

demote Huffman was unrelated to the subsequent injury and not a substantial factor in 

that injury.” (Id. at p. 698, italics added.) Notably, Huffman’s “discrimination claim was 

based on his age, not on any physical disability or inability to do the division sales 

manager job,” and there was no evidence his knee injury was related to his age. (Id. at p. 

699, italics added.) There was no evidence Huffman’s duties or responsibilities were 

assigned for an unlawful purpose. (Ibid.) The Huffman court found that the theory 

Huffman proposed—that whenever a discriminatory act occurs, any subsequent work 

injury is exempt from workers’ compensation exclusivity—would permit an employee to 

circumvent the workers’ compensation system by asserting a discrimination claim “even 

if the injury was unrelated and remote in time to the discriminatory conduct.” (Huffman, 

supra, 121 Cal.App.4th at p. 699.) 

Unlike the facts actually presented in Huffman -- but under almost precisely the 

very circumstances contemplated as distinguishable by the Huffman court -- Fussell has 

alleged both disability discrimination and failure to accommodate claims. Moreover, he 

has proffered evidence in support of his claim that Timec unlawfully discriminated 

against him and failed to accommodate his disability such that Timec placed him in a 

position in which it knew he could not perform because of his physical disability (for 
22

which he simply required his AFO to continue to work above ground). Consequently, in 

this case, for purposes of Timec’s motion for summary adjudication, a triable issue of 

material fact exists as to whether Timec’s failure to accommodate Fussell’s disability was 

a substantial factor in causing his subsequent workplace injury. (Huffman, supra, 121 

Cal.App.4th at p. 698 [“Had Huffman alleged a disability discrimination or failure-toaccommodate claim,” there is “no doubt” damages arising from his knee injury would 

have been exempt from the exclusive remedy provisions. In such a case, unlike the one 

presented, the unlawful demotion to a position in which the employer knew the employee 

could not perform because of a physical disability would be a substantial factor in 

subsequent workplace injury sustained by that employee while attempting to perform his 

or her job duties”].)

To the extent the trial court sidestepped the issues presented by concluding that 

summary judgment was properly granted on the issue of “causation”—based on evidence 

Fussell slipped on oil, we find the trial court erred. Any evidence Fussell slipped on oil is 

not “utterly irreconcilable” with Fussell’s claims that Timec’s failure to accommodate his 

disability and discrimination against him on the basis of that disability (by forcing him to 

work “up on the racks” or be terminated despite Timec’s knowledge Fussell’s AFO was 

broken and had not yet been repaired) was a substantial factor in causing his subsequent 

injury.13 (Bell v. Wells Fargo Bank, supra, 62 Cal.App.4th at p. 1389; see also Cole v. 

Town of Los Gatos (2012) 205 Cal.App.4th 749, 769 [plaintiff may pursue theory of 

multiple causes of injury].) It follows that summary adjudication on this ground was 

improper. (Huffman, supra, 121 Cal.App.4th at p. 698; see also Jones v. Los Angeles 

Community College Dist. (1988) 198 Cal.App.3d 794, 809). 

Timec Was Not Entitled to Summary Adjudication of Fussell’s Disability 

Discrimination Claim.

Fussell argues Timec ignored the allegations of his complaint in framing its issues 

 

13 Indeed, Fussell testified his left leg – the leg on which he needed his AFO – was 

the leg that slipped on the scaffolding.
23

for summary adjudication, emphasizing in particular the discriminatory course of conduct 

he says he alleged to have occurred before he was terminated. He says he was qualified 

to work as a pipefitter/fabricator despite his disability as the evidence established he was 

qualified and capable of working on the scaffolding as long as he wore his leg brace, and 

there were alternative duties he could have performed while he waited the few days 

needed for his AFO leg brace to be repaired. “The fact that [his] subsequent back injuries

occurred due to defendant Timec’s discriminatory conduct should not excuse Timec from 

being held responsible under FEHA.” (Original italics.) 

According to Timec, it was entitled to summary adjudication of Fussell’s disability 

discrimination claim because it was undisputed that (1) “Fussell was not qualified to 

work as a Pipefitter/Fabricator at the time of his alleged termination and therefore cannot 

make a prima facie case of disability discrimination” and (2) “Fussell was laid off for 

legitimate nondiscriminatory reasons and there is no evidence of pretext.” (Italics 

added.) 

Basic Legal Principles.

FEHA establishes separate causes of action for a range of “‘unlawful employment 

practices,’” including disability discrimination (§ 12940, subd. (a)), retaliation (§ 12940, 

subd. (h)), failure to make reasonable accommodation for the known disability of an 

employee (§ 12940, subd. (m)) and failure to engage in the good faith interactive process 

to determine a reasonable accommodation (§ 12940, subd. (n)). (See Lui v. City and 

County of San Francisco (2012) 211 Cal.App.4th 962, 970.) 

Given “the similarity between state and federal employment discrimination laws, 

California courts look to pertinent federal precedent when applying our own statutes. 

[Citation.] In particular, California has adopted the three-stage burden-shifting test 

established by the United States Supreme Court for trying claims of discrimination . . . .” 

(Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354 (Guz); Wills v. Superior Court 

(2011) 195 Cal.App.4th 143, 159 (Wills).)

“This so-called McDonnell Douglas test reflects the principle that direct evidence 

of intentional discrimination is rare, and that such claims must usually be proved 
24

circumstantially. Thus, by successive steps of increasingly narrow focus, the test allows 

discrimination to be inferred from facts that create a reasonable likelihood of bias and are 

not satisfactorily explained.” (Guz, supra, 24 Cal.4th at p. 354.) 

“In the first stage, the plaintiff bears the burden to establish a prima facie case of 

discrimination. (Guz, supra, 24 Cal.4th at p. 354.) The burden in this stage is “‘not 

onerous’” (id. at p. 355), and the evidence necessary to satisfy it is minimal [citation]. 

On a disability discrimination claim, the prima facie case requires the plaintiff to show 

‘he or she (1) suffered from a disability, or was regarded as suffering from a disability; 

(2) could perform the essential duties of the job with or without reasonable 

accommodations, and (3) was subjected to an adverse employment action because of the 

disability or perceived disability.’ (Ibid.)” (Wills, supra, 195 Cal.App.4th at p. 159.) 

“If the plaintiff meets this burden, “‘“the burden shifts to the defendant to 

[articulate a] legitimate nondiscriminatory reason for its employment 

decision . . . .’ . . . ”’ (Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 342–343 [77 

Cal. Rptr. 3d 654], original alteration (Arteaga).) This likewise is not an onerous burden 

(Board of Trustees v. Sweeney (1978) 439 U.S. 24, 25, fn. 2 [58 L. Ed. 2d 216, 99 S.Ct. 

295]), and is generally met by presenting admissible evidence showing the defendant’s 

reason for its employment decision (Scotch v. Art Institute of California (2009) 173 

Cal.App.4th 986, 1004 [93 Cal. Rptr. 3d 338] (Scotch)).

“Finally, if the defendant presents evidence showing a legitimate, 

nondiscriminatory reason, the burden again shifts to the plaintiff to establish the 

defendant intentionally discriminated against him or her. (Reeves v. Sanderson Plumbing 

Products, Inc. (2000) 530 U.S. 133, 142 [147 L. Ed. 2d 105, 120 S.Ct. 2097] (Reeves).) 

The plaintiff may satisfy this burden by proving the legitimate reasons offered by the 

defendant were false, creating an inference that those reasons served as a pretext for 

discrimination. (Ibid.)” (Wills, supra, 195 Cal.App.4th at pp. 159-160.)

“A defendant’s summary judgment motion “‘slightly modifies the order of these 

[McDonnell Douglas] showings.’” (Wills, supra, 195 Cal.App.4th at p. 160, citation 

omitted.) On summary judgment (or adjudication), the defendant has the initial burden to 
25

either (1) negate an essential element of the plaintiff’s prima facie case (Arteaga, supra, 

163 Cal.App.4th at p. 344) or (2) establish a legitimate, nondiscriminatory reason for 

terminating the plaintiff (Scotch, supra, 173 Cal.App.4th at p. 1005). (Wills, supra, 195 

Cal.App.4th at p. 160.) 

Then, “‘[T]o avoid summary judgment [once the employer makes the foregoing 

showing], an employee claiming discrimination must offer substantial evidence that the 

employer’s stated nondiscriminatory reason for the adverse action was untrue or 

pretextual, or evidence the employer acted with a discriminatory animus, or a 

combination of the two, such that a reasonable trier of fact could conclude the employer 

engaged in intentional discrimination.’ [Citation.]” (Wills, supra, 195 Cal.App.4th at p. 

160.) 

Qualified Employee Analysis.

Citing Green v. State of California (2007) 42 Cal.4th 254, 262 (Green), Timec 

argues Fussell has acknowledged that he has been unable to perform the demands of his 

job as a pipefitter/fabricator since his injury on October 29, 2009, and therefore cannot 

establish that he was a qualified employee with a disability, a necessary element of his 

prima facie case. Timec says Fussell’s argument that his inability to prove he was a 

qualified employee at the time of his termination should be excused given his disability 

was caused by Timec’s conduct is not supported by any authority. 

In Green, supra, 42 Cal.4th at page 262, in addressing a disability discrimination 

claim pursuant to subdivision (a) of section 12940, our Supreme Court determined that 

“in order to establish that a defendant employer has discriminated on the basis of 

disability in violation of the FEHA, the plaintiff employee bears the burden of proving he 

or she was able to do the job, with or without reasonable accommodation.”14 Notably, 

 

14 Government Code section 12940, subdivision (a) provides: “It is an unlawful

employment practice, unless based upon a bona fide occupational qualification, or, except 

where based upon applicable security regulations established by the United States or the 

State of California: (a) For an employer, because of the race, religious creed, color, 

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

information, marital status, sex, gender, gender identity, gender expression, age, sexual 
26

the Green court observed that federal case law interpreting the Americans with 

Disabilities Act (ADA) is clear that the employee bears the burden of meeting the 

definition of “qualified individual with a disability.” (Id. at p. 261.) “The reason is clear; 

it is not unlawful under federal law to draw a distinction on the basis of a disability if that 

disability renders an employee unqualified, with or without reasonable accommodation, 

to perform the essential functions of a position. (Id. at pp. 261-262.) Similarly, “[b]y its 

terms, section 12940 makes it clear that drawing distinctions on the basis of physical or 

mental disability is not forbidden discrimination in itself. Rather, drawing these 

distinctions is prohibited only if the adverse employment action occurs because of a 

disability and the disability would not prevent the employee from performing the 

essential duties of the job, at least not with reasonable accommodation.” (Id. at p. 262.) 

Applying the reasoning in Green, we reject Timec’s argument that it should make 

no difference whether (if Fussell’s account is believed) Timec caused the very disability 

that rendered him unqualified to work as a pipefitter/fabricator with or without reasonable 

accommodation. It is undisputed that, although he had “drop foot” as a result of an 

earlier injury (that caused his compartment syndrome), Fussell was able to perform his 

job duties at elevation as long as he wore his AFO leg brace to support and stabilize his 

left leg. Without the AFO, despite the fact he had “drop foot,” he was still able to 

perform pipefitter/fabricator duties on the ground, and his repaired leg brace was 

expected to arrive within another day or so. Yet, if Fussell’s evidence is credited, he was 

ordered to work up on the scaffolding or be fired. Under these circumstances, if he was 

rendered unqualified to perform his job duties, it was only because of Timec’s prior 

failure to accommodate his disability (drop foot, simply requiring an AFO/leg brace) that 

led to an altogether different and perhaps permanent disability arising from the significant 

back injuries suffered in the October 29, 2009 fall. 

 

orientation, or military and veteran status of any person, to refuse to hire or employ the 

person or to refuse to select the person for a training program leading to employment, or 

to bar or to discharge the person from employment or from a training program leading to 

employment, or to discriminate against the person in compensation or in terms, 

conditions, or privileges of employment.” (Italics added.)
27

In other words, we see no inconsistency with the Green decision in concluding 

that, when there is evidence that an employer—as a result of a prior FEHA violation 

(such as the failure to reasonably accommodate a known physical disability) causes the 

very disability that renders the employee unqualified to perform the essential duties of a 

particular job going forward, the defendant is not entitled to summary adjudication of a 

discrimination cause of action on the ground the plaintiff cannot establish status as a 

“qualified” employee. (Green, supra, 42 Cal.4th at pp. 261-262.) 

Moreover, even without reaching the question of whether Fussell must establish he 

was a “qualified” employee to withstand summary adjudication of a discrimination claim 

within the meaning of subdivision (a) of section 12940, Fussell also argues that Timec 

failed to address all of the conduct Fussell alleged to be discriminatory in support of his 

first cause of action. “It is the allegations in the complaint to which the summary 

judgment motion must respond.” (Laabs v. City of Victorville (2008) 163 Cal.App.4th 

1242, 1258; Code Civ. Proc., § 437c, subd. (b)(1), italics added [summary judgment or 

adjudication motion must show the “material facts” are undisputed].)

In support of his disability discrimination cause of action, Fussell specifically 

alleged Timec terminated him on the basis of his disability and in retaliation for his 

request for accommodation because of that disability and in retaliation for his stated 

intention to file a worker’s compensation claim, in violation of the Fair Employment and 

Housing Act (FEHA, Gov. Code § 12940 et seq.), and to keep him from reporting his 

accident to Chevron. Further, in support of the disability discrimination claim (as 

distinguished from his failure to accommodate claim), he expressly stated Timec’s 

actions “in wrongfully terminating [him], and otherwise discriminating against him, as 

alleged above,” were a substantial factor in causing his damages—including not only his 

financial and other such damages but also his potentially “permanent disabilit[y]” and 

related damages. (Italics added.) He reiterated in several paragraphs of his disability 

discrimination cause of action that, as a further direct and proximate result of the 

“aforesaid acts of discrimination [by Timec] on the basis of Fussell’s physical disability,” 

he had suffered various forms of damage further identified in his complaint. Similarly, 
28

he alleged he had filed a complaint with the Department of Fair Employment and 

Housing (DFEH) alleging he “had suffered discrimination and was terminated, on the 

basis of his disability as described hereinabove, and was harassed and was denied an 

accommodation for his physical disability, [and was] retaliated [against] for requesting 

an accommodation,” and subsequently received a right-to-sue notice. (Italics added.) 

In other words, while it is true Fussell specifically alleged discrimination on the 

basis of his physical disability arising out of his termination on November 2, 2009, he 

also expressly and repeatedly alleged Timec’s actions from October 29, 2009 forward,

demonstrated Timec had discriminated against him and retaliated against him for 

requesting such accommodation. Because Fussell also alleged he was terminated on 

November 2, 2009 in retaliation for requesting reasonable accommodation of his prior 

disability, Timec’s assertion Fussell cannot present evidence he was “qualified” to work 

as a pipefitter/fabricator is irrelevant. 

A plaintiff may pursue a disability discrimination claim based on retaliation as it 

is an unlawful employment practice for any employer “to discharge, expel, or otherwise 

discriminate against any person because the person has opposed any practices forbidden 

under this part or because the person has filed a complaint, testified, or assisted in any 

proceeding under this part.” (§ 12940, subd. (h).) For a disability discrimination claim 

based on retaliation, a plaintiff need not establish status as a “qualified” employee. 

Instead, a discrimination claim based on retaliation requires proof that the plaintiff 

believed he or she suffered discrimination as a result of his or her physical disability by 

(1) engaging in protected activity by opposing discrimination and seeking a reasonable 

accommodation, (2) he or she was subjected to adverse employment action and (3) a 

causal link existed between the protected activity and the employer’s action.15 (Yanowitz

v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042-1043.) Timec did not even attempt to 

 

15 Indeed, the almost immediate succession of events given the proximity of 

Fussell’s request for a reasonable accommodation to the injury he suffered and his 

termination further bolsters his claim. (See Parki v. Kaiser Permanente Hosp. Inc. (9th

Cir. 2004) 389 F.3d 840, 850; Shellenberger v. Summit Bancorp (3d Cir. 2003) 318 F.3d 

183, 189.)
29

address Fussell’s allegations of discrimination based on retaliation for requesting 

reasonable accommodation and therefore did not meet its initial burden of proof in this 

regard. (Code Civ. Proc., § 437c, subd. (p)(2).) 

Timec also argued it was entitled to summary adjudication because the evidence 

was undisputed that Fussell was laid off for a legitimate nondiscriminatory reason and 

there is no evidence of pretext. However, as Fussell argues, Timec misconstrues the 

record. Leaving to one side the question of whether Fussell was laid off or terminated as 

unnecessary for purposes of this discussion, Timec relies on the argument that, for 

example, in completing the form in which an inaccurate reason was cited for Fussell’s 

termination, his supervisor (Tracy Shirley) “appears” to have “simply misunderstood” the 

coding—a claim which is plainly only one possible construction of the evidence—

especially given the fact Shirley also specifically wrote out the words “Job Complete.” 

Fussell presented evidence that Shirley seemed to have a negative “attitude” when he 

ordered Fussell “up on the racks” (after allowing him to work on the ground earlier) 

despite the knowledge his AFO leg brace was not yet repaired; he presented evidence that 

Glass had told him no one was working on November 1 but later learned his crew did 

work that day; that he was pressured to sign a form indicating his job had been completed 

when it had not; and that Savoy told him he never would have been working for Timec 

had Savoy known of his disability. If Fussell’s version of events is believed, despite 

Fussell’s requests, Timec refused to reasonably accommodate his disability (which did 

not prevent him from working as a pipefitter/fabricator) and then terminated him for 

requesting reasonable accommodation and/or for becoming so significantly disabled that 

he may no longer be qualified to perform the same job duties as before—as a direct 

result of Timec’s failure to reasonably accommodate his prior disability.

16 It follows 

that Timec was not entitled to summary adjudication of this cause of action as a matter of 

 

16 According to the record, Fussell’s AFO was ready on October 30—the day after 

his injury occurred. (See A.M. v. Albertsons LLC (2009) 178 Cal.App.4th 455, 465 [“a 

single failure to make reasonable accommodation can have tragic consequences for an 

employee who is not accommodated”].) 
30

law.

DISPOSITION

The judgment and order granting summary judgment are reversed. The matter is 

remanded to the trial court with instructions to enter a new order denying the motion for 

summary judgment or adjudication. Fussell is to recover his costs on appeal. 

WOODS, J.

We concur:

PERLUSS, P. J. SEGAL, J.*

 

*Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.