Filed 8/29/16; on rehearing

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

LUIS CASTRO-RAMIREZ,

Plaintiff and Appellant,

v.

DEPENDABLE HIGHWAY EXPRESS, 

INC.,

Defendant and Respondent.

 B261165, B262524

 (Los Angeles County

 Super. Ct. No. BC511197)

APPEAL from a judgment and an order of the Superior Court for the County of 

Los Angeles, Richard Fruin, Judge. B261165 judgment reversed; B262524 order 

reversed.

Employees’ Legal Advocates and A. Jacob Nalbandyan for Plaintiff and 

Appellant.

Gordon & Rees, Don Willenburg, Mark S. Posard and Jennifer M. Lynch for 

Defendant and Respondent.

* * * * * *
2

Plaintiff Luis Castro-Ramirez sued his former employer, Dependable Highway 

Express, Inc. (DHE), alleging causes of action for disability discrimination, failure to 

prevent discrimination, and retaliation under the Fair Employment and Housing Act 

(FEHA or the Act) (Gov. Code, § 12900 et seq.), as well as wrongful termination in 

violation of public policy. (He alleged other claims not pursued on appeal.) Plaintiff’s 

son requires daily dialysis, and according to the evidence, plaintiff must be the one to 

administer the dialysis. For several years, plaintiff’s supervisors scheduled him so that he 

could be home at night for his son’s dialysis. That schedule changed when a new 

supervisor took over and ultimately terminated plaintiff for refusing to work a shift that 

did not permit him to be home in time for his son’s dialysis. The trial court granted 

defendant’s motion for summary judgment and denied plaintiff’s motion to tax costs.

We reverse the judgment and the order denying the motion to tax costs. Plaintiff 

has demonstrated triable issues of material fact on his causes of action for associational 

disability discrimination, failure to prevent discrimination, retaliation, and wrongful 

termination in violation of public policy.

FACTS AND PROCEDURE

1. The Complaint

Plaintiff alleged that, when DHE hired him to work as a truck driver in 2010, he 

told DHE he had a disabled son who required dialysis on a daily basis and he (plaintiff) 

was responsible for administering the dialysis. He requested work schedule 

accommodations that his supervisor initially granted, permitting him to attend to his son 

in the evening. In 2013, a new supervisor changed his work schedule. Plaintiff 

complained to the new supervisor about the change in schedule. On April 23, 2013, the 

supervisor gave plaintiff the 12:00 p.m. shift. Plaintiff objected and explained that the 

shift would not allow him to be home early enough in the evening to tend to his disabled 

son. The supervisor spoke to a manager and then terminated plaintiff’s employment. 

The supervisor told plaintiff he “had quit by choosing not to take the assigned shift.”

Plaintiff’s complaint alleged a cause of action for associational disability 

discrimination in violation of FEHA, claiming defendant “was substantially motivated, in 
3

part, to terminate Plaintiff because of his association with his disabled family 

members . . . .” Plaintiff also alleged DHE’s conduct was in retaliation for his assertion 

of rights under FEHA. Plaintiff alleged several other causes of action, including failure 

to take reasonable steps to prevent the unlawful discrimination, and wrongful termination

in violation of public policy.

2. DHE’s Motion for Summary Judgment

The pertinent facts reflected in the parties’ summary judgment papers are as 

follows. DHE employed plaintiff at will. DHE hired plaintiff in December 2009 to work 

out of its Los Angeles terminal as a local driver. During his time with DHE, he drove 

different routes throughout Los Angeles County.

Plaintiff’s son needs a kidney transplant and has required daily home dialysis 

treatments for the last 15 years. Plaintiff is the only person in his household who knows 

how to operate the dialysis machine for his son. One has to take classes to learn how to 

operate the machine.

When plaintiff first began work at DHE, he informed the recruiting manager who 

hired him that he had daily obligations at home related to administering dialysis to his 

son. Plaintiff reported to Armando Gomez and Winston Bermudez, who were his initial 

supervisors, for over three years. Bermudez became his supervisor in 2011, when 

Bermudez was promoted to the dispatcher position. When Bermudez became his

supervisor, plaintiff told Bermudez that he had a disabled son to whom he needed to 

apply daily dialysis. He also told Bermudez he needed to end his shifts early enough to 

get home for his son’s treatments. Bermudez met plaintiff’s needs as often as he could

by giving him a shift that enabled him to care for his son. Bermudez never gave plaintiff 

a shift that began as late as noon. Gomez also knew about plaintiff’s special need to go

home early to care for his son and informed Bermudez of this when Bermudez first 

became a dispatcher. Thus, while the schedules of DHE’s drivers varied from day to day, 

plaintiff’s typical schedule was from 9:00 or 10:00 a.m. until 7:00 or 8:00 p.m. There 

were times, however, when plaintiff worked shifts ending later, such as after 10:00 or 

11:00 p.m.
4

Plaintiff’s ability to work later depended on his son’s condition on any given day. 

The amount of time his son needed to be connected to the machine varied between 10 and

12 hours. The time at which plaintiff would need to start administering dialysis also 

varied from between 7:00 p.m. and 12:00 a.m. There was no “normal day,” beyond these 

general guidelines. On days when his son would need to be connected on the earlier side, 

plaintiff would communicate this to Gomez or Bermudez.

Throughout his employment, plaintiff performed satisfactorily with no problems. 

Plaintiff loved his job and appreciated DHE’s assistance “from the heart.” That 

assistance changed, however, when Bermudez was no longer his supervisor.

Sometime in March 2013, DHE promoted Bermudez to operations manager and 

Boldomero Munoz-Guillen (known as Junior) became plaintiff’s supervisor (and

Bermudez supervised Junior). When this happened, Bermudez told Junior that plaintiff 

had special needs related to his disabled son and needed to leave early. Bermudez asked 

Junior to “work with” plaintiff.

At some point later in March 2013, plaintiff complained to Bermudez that Junior 

had changed his hours, and he was starting later and finishing later and was unable to 

leave to tend to his son. Bermudez told Junior that plaintiff was complaining about his 

changing hours and his need to leave early. Junior told Bermudez that he did not need to 

bring plaintiff in earlier at the time, but Junior indicated he would “work on that.” 

Bermudez never reported plaintiff’s special needs to human resources and did not 

monitor plaintiff’s schedule after plaintiff complained to him about Junior.

On April 15, 2013, approximately a week before plaintiff’s termination, one of 

DHE’s customers sent an e-mail to Bermudez and another manager (not Junior) asking 

for plaintiff, the “regular drive[r],” to do the customer’s deliveries at 7:00 a.m. The 

customer stated that it “ha[d] always been done like that until recently.” When plaintiff 

asked Junior about deliveries to this customer, Junior told him that the customer did not 

want plaintiff to make those deliveries and did not like plaintiff’s work, and that was why 

Junior had given him shifts starting later. A few days later, the customer called plaintiff 

directly. The customer asked plaintiff why he was not making deliveries. Plaintiff 
5

explained that Junior had said the customer did not like his work. The customer told 

plaintiff that was untrue and gave him a copy of the e-mail specifically requesting 

plaintiff’s services. When deposed, Junior testified that he had seen the e-mail from the 

customer, but he could not recall exactly when.

On April 22, 2013, Junior assigned plaintiff a shift that started at 11:55 a.m., the 

latest he had ever started a shift, and ended at 9:04 p.m. He had “no problem” with the

route that day because it still allowed him to be home in time for his son’s dialysis. But 

he told Junior: “Please, I need to have my job like always. I’ve always had help from 

everyone except you.”

The following day, on April 23, 2013, Junior assigned plaintiff a shift beginning at 

12:00 p.m. Unlike the previous day, this assignment was for a route from Los Angeles to 

Oxnard and back, including multiple pickups and deliveries. Plaintiff explained to Junior 

that it was too late in the day for him to drive that route because he could not get back in 

time to administer dialysis to his son by 8:00 p.m. Plaintiff requested another route or 

simply to take that day off. He also reminded Junior that Bermudez had already talked to 

Junior about plaintiff’s need for shifts enabling him to leave early for his son.

When plaintiff complained to Junior, Junior laughed and said, “Winston 

[Bermudez] doesn’t work here anymore. Now it’s me.” Junior told plaintiff that, if he 

did not do the route, he was fired. Plaintiff said he was sorry, but he could not do it. 

Junior told him to return the next day to sign the termination paperwork.

Plaintiff returned to DHE for three consecutive days after that because he wanted 

to work. On the third day, another manager told him that he had not worked for three 

days and “of course” he was terminated. DHE processed the termination as a 

“[v]oluntary [t]ermination” or “[r]esignation,” with the stated reason being “[r]efused 

assignment.” Plaintiff refused to sign the document stating he had resigned.

On the day Junior terminated plaintiff, Junior scheduled at least eight other drivers 

to start shifts well before noon, with start times at 4:54 a.m., 5:54 a.m., 7:00 a.m., 

7:54 a.m., 8:06 a.m., 8:54 a.m., 9:00 a.m., and 10:54 a.m.
6

Maria Ramirez, DHE’s human resources manager, testified: “It is not uncommon 

for drivers at [DHE] to refuse work assignments for a variety of reasons; if one of its 

drivers refuses a work assignment for any reason, this is grounds for termination.” 

DHE’s employee handbook states refusal to obey a supervisor’s order or refusal to 

perform a job assignment is grounds for disciplinary action, including suspension without 

pay, discharge, counseling, and warning notices.

3. The Trial Court’s Rulings

The trial court granted DHE’s motion for summary judgment, concluding that 

there was no triable issue of material fact on any cause of action. The court rejected 

plaintiff’s theory that DHE violated FEHA by terminating him for requesting an 

accommodation to care for a relative with a disability. The court concluded plaintiff’s 

evidence at best showed that Junior was unwilling to provide accommodation to the same 

extent as plaintiff’s previous supervisor. The court found no evidence to show the 

termination decision was based on plaintiff’s association with his child, or in retaliation 

for his scheduling requests. Even assuming plaintiff could make a prima facie case, the 

court found inadequate evidence that defendant’s stated reason for termination was 

pretextual. Plaintiff could not show the assignment he refused was improperly motivated, 

because plaintiff worked nearly identical hours the previous day without objection.

The court entered judgment for DHE and entered an amended judgment of 

dismissal several weeks later, awarding statutory costs to DHE in the amount of 

$7,592.08. Still later, on January 8, 2015, the trial court denied plaintiff’s motion to tax 

or strike DHE’s costs, rejecting plaintiff’s argument that an employer is not entitled to 

costs in a FEHA action.

Plaintiff appealed from the judgment and the subsequent order denying his motion 

to tax costs. We consolidated the appeals for purposes of briefing, oral argument, and 

decision.

STANDARD OF REVIEW

We review an order granting summary judgment de novo, “considering all the 

evidence set forth in the moving and opposition papers except that to which objections 
7

have been made and sustained.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 

334 (Guz).)

A defendant moving for summary judgment must show “that one or more 

elements of the cause of action . . . cannot be established, or that there is a complete 

defense to that cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) “In performing 

our de novo review, we must view the evidence in a light favorable to plaintiff as the 

losing party [citation], liberally construing [his or] her evidentiary submission while 

strictly scrutinizing defendants’ own showing, and resolving any evidentiary doubts or 

ambiguities in plaintiff’s favor.” (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 

763, 768.) We accept as true both the facts shown by the losing party’s evidence and 

reasonable inferences from that evidence. (Aguilar v. Atlantic Richfield Co. (2001) 25 

Cal.4th 826, 856; Sada v. Robert F. Kennedy Medical Center (1997) 56 Cal.App.4th 138, 

148.)

Summary judgment is appropriate only when “all the papers submitted show that 

there is no triable issue as to any material fact and that the moving party is entitled to a 

judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) A triable issue of 

material fact exists if the evidence and inferences therefrom would allow a reasonable 

juror to find the underlying fact in favor of the party opposing summary judgment. 

(Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at pp. 850, 856.)

DISCUSSION

1. Associational Disability Discrimination

FEHA provides a cause of action for associational disability discrimination, 

although it is a seldom-litigated cause of action. (Rope v. Auto-Chlor System of 

Washington, Inc. (2013) 220 Cal.App.4th 635, 656-657 (Rope), superseded by statute on 

another ground.) As to disability discrimination generally, FEHA makes it unlawful for

an employer, “because of the . . . physical disability . . . of any person, . . . to discharge 

the person from employment . . . or to discriminate against the person . . . in terms, 
8

conditions, or privileges of employment.” (Gov. Code, § 12940, subd. (a).)1 The very

definition of a “physical disability” embraces association with a physically disabled 

person. FEHA explains that the phrase “‘physical disability’ . . . includes a 

perception . . . that the person is associated with a person who has, or is perceived to 

have” a physical disability. (§ 12926, subd. (o).)2 Accordingly, when FEHA forbids 

discrimination based on a disability, it also forbids discrimination based on a person’s 

association with another who has a disability.

A prima facie case of disability discrimination under FEHA requires a showing 

that (1) the plaintiff suffered from a disability, (2) the plaintiff was otherwise qualified to 

do his or her job, with or without reasonable accommodation, and (3) the plaintiff was 

subjected to adverse employment action because of the disability. (Green v. State of 

California (2007) 42 Cal.4th 254, 262 (Green); see Nealy v. City of Santa Monica (2015) 

234 Cal.App.4th 359, 378-379; Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 

255 (Jensen).) Adapting this framework to the associational discrimination context, the 

“disability” from which the plaintiff suffers is his or her association with a disabled 

person. Respecting the third element, the disability must be a substantial factor 

motivating the employer’s adverse employment action. (Cal. Code Regs., tit. 2, § 11009, 

subd. (c); Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 229, 232; Rope, supra,

220 Cal.App.4th at p. 658.)

Once the plaintiff establishes a prima facie case, “the burden then shifts to the 

employer to offer a legitimate, nondiscriminatory reason for the adverse employment 

action.” (Deschene v. Pinole Point Steel Co. (1999) 76 Cal.App.4th 33, 44.) The 

 

1 Further undesignated statutory references are to the Government Code. 

2 The complete text states: “As used in [FEHA] in connection with unlawful 

practices, unless a different meaning clearly appears from the context: [¶] . . . [¶] (o) 

‘Race, religious creed, color, national origin, ancestry, physical disability, mental 

disability, medical condition, genetic information, marital status, sex, age, sexual 

orientation, or military and veteran status’ includes a perception that the person has any 

of those characteristics or that the person is associated with a person who has, or is 

perceived to have, any of those characteristics.” (§ 12926, subd. (o).)
9

plaintiff may then show the employer’s proffered reason is pretextual (Rope, supra, 220 

Cal.App.4th at p. 656) or offer any further evidence of discriminatory motive. (Guz, 

supra, 24 Cal.4th at p. 356.) “In an appropriate case, evidence of dishonest reasons, 

considered together with the elements of the prima facie case, may permit a finding of 

prohibited bias.” (Ibid.)

Here, DHE challenges plaintiff’s case on several grounds. First, it argues that 

plaintiff’s “entire case hinges on his fervent belief that [DHE] had an obligation to 

provide him with a special schedule as an accommodation for his son’s illness,” but it 

contends DHE had no such duty. Second, DHE argues that, as a matter of law, plaintiff 

cannot establish his association with his disabled son motivated his termination, and 

moreover he cannot show that DHE’s legitimate, nondiscriminatory reason for 

terminating him was pretextual. As we shall explain, none of these arguments entitle 

DHE to summary judgment.

a. Plaintiff’s Associational Disability Discrimination Cause of Action Survives His 

Abandonment of His Failure to Accommodate Cause of Action

DHE maintains that fundamentally this is a reasonable accommodation case, and 

argues that FEHA is “clear” that employers need not make accommodations for 

associates of the disabled—that is, only employees who are themselves disabled are 

entitled to reasonable accommodations. For his part, plaintiff tells us he has abandoned 

the reasonable accommodation cause of action and is not challenging the court’s ruling 

on it. We agree that the trial court’s ruling on the failure to accommodate cause of action 

is not at issue on appeal, and we do not decide whether FEHA establishes a separate duty 

to reasonably accommodate employees who associate with a disabled person.

To us, the proper inquiry is: Even if DHE had no separate duty under FEHA to 

provide plaintiff with reasonable accommodations for his son’s illness, was there 

sufficient evidence that discriminatory animus motivated Junior’s refusal to honor 

plaintiff’s scheduling request and his termination of plaintiff? We address that point in 

part 1.b., post. We pause here to point out that plaintiff’s abandonment of his failure to 

accommodate cause of action does not in itself mean he may not pursue his claim that he 
10

suffered discrimination based on associational disability. Nor does his decision to not 

pursue a failure to accommodate mean that associational disability is no longer part of 

this case.

In its respondent’s brief, DHE implicitly acknowledges that the abandonment of 

the accommodation cause of action does not sound the death knell to the discrimination 

cause of action because DHE proceeds to argue that there is no triable issue of fact either 

of motive or pretext for plaintiff to establish discrimination. Even so, we find 

accommodation relevant as to plaintiff’s discrimination cause of action. We first observe 

that no published California case has determined whether employers have a duty under 

FEHA to provide reasonable accommodations to an applicant or employee who is 

associated with a disabled person. We acknowledge that the reasonable accommodation 

subdivision of section 12940 does not expressly refer to persons other than an applicant 

or employee. The pertinent language makes it an unlawful employment practice “[f]or an 

employer or other entity covered by this part to fail to make reasonable accommodation 

for the known physical or mental disability of an applicant or employee.” (§ 12940, 

subd. (m)(1).) But we do not read subdivision (m)(1) in isolation; instead we read parts 

of a statutory scheme together and construe them in a manner that gives effect to each. 

(City of Huntington Beach v. Board of Administration (1992) 4 Cal.4th 462, 468.) And 

under section 12926, subdivision (o), “‘physical disability’ . . . includes a perception” that 

a person “is associated with a person who has, or is perceived to have,” a physical 

disability. In other words, association with a physically disabled person appears to be

itself a disability under FEHA. Like the many other definitions set forth in section 

12926, this definition of a physical disability applies “in connection with unlawful 

practices [under FEHA], unless a different meaning clearly appears from the context.” 

(§ 12926.) Accordingly, when section 12940, subdivision (m) requires employers to 

reasonably accommodate “the known physical . . . disability of an applicant or 

employee,” read in conjunction with other relevant provisions, subdivision (m) may 

reasonably be interpreted to require accommodation based on the employee’s association 

with a physically disabled person. Again, given plaintiff’s concession, we do not decide 
11

this point. We only observe that the accommodation issue is not settled and that it 

appears significantly intertwined with the statutory prohibition against disability 

discrimination, a subject to which we now turn.

As we explained above, FEHA creates an associational disability discrimination 

claim in the manner just described—by reading association with a physically disabled 

person (§ 12926, subd. (o)) into the Act where discrimination based on “physical 

disability” appears (§ 12940, subd. (a)). By express terms, the two pertinent sections of 

FEHA make it unlawful to “discharge a person from employment” (§ 12940, subd. (a)) 

based on physical disability and other characteristics, which include “a perception that 

the person has any of those characteristics or that the person is associated with a person 

who has, or is perceived to have, any of those characteristics.” (§ 12926, subd. (o).)

In Rope, our colleagues in Division One found sufficient allegations of both 

associational disability discrimination and wrongful termination in violation of public 

policy in a case in which the employee was fired after he announced his plan to donate a 

kidney to his sister. (Rope, supra, 220 Cal.App.4th at pp. 657-658.) Accordingly, Rope

reversed the trial court’s sustaining of a demurrer to those causes of action. (Id. at

p. 661.) In significant contrast, the Rope court rejected the plaintiff’s claim of retaliation 

based on a request to accommodate, impliedly acknowledging that discrimination and 

accommodation retaliation are separate, albeit related, concepts. (Id. at pp. 651-654.)3

b. The Proper Framework for Associational Disability Rests on State, Not Federal,

Law

Even though DHE acknowledges that Rope sets out the current California law on 

associational disability, DHE points to several federal cases in support of its argument 

that plaintiff has not established a triable issue of fact as to discrimination. DHE relies on 

federal cases interpreting the Americans with Disabilities Act of 1990 (ADA) (42 U.S.C. 

 

3 That part of the Rope decision dealing with retaliation for requesting 

accommodation was later superseded by amendments to Government Code section 

12940, subdivision (m)(2). (See part 2, post.)
12

§ 12101 et seq.). The ADA and the cases cited by DHE are easily distinguished. We do 

not discard ADA precedents blindly, and indeed we often look to federal law interpreting 

the ADA when construing FEHA, particularly when the question involves parallel 

statutory language. (Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 57.) 

But the two statutory schemes are not coextensive. Our Legislature has expressly 

declared “[t]he law of this state in the area of disabilities provides protections 

independent from those in the [ADA]. Although the federal act provides a floor of 

protection, this state’s law has always, even prior to passage of the federal act, afforded 

additional protections.” (§ 12926.1, subd. (a).) One instance in which we should part 

ways with federal case authority is when the statutory language is not parallel. That is 

the case here.

The ADA creates a cause of action for associational disability discrimination using 

language that structurally is different than FEHA. The “[g]eneral rule” is that “[n]o 

covered entity shall discriminate against a qualified individual on the basis of 

disability . . . .” (42 U.S.C. § 12112(a).) “[T]he term ‘discriminate against a qualified 

individual on the basis of disability’ includes,” among other things, “excluding or 

otherwise denying equal jobs or benefits to a qualified individual because of the known 

disability of an individual with whom the qualified individual is known to have a 

relationship or association.” (42 U.S.C. § 12112(b)(4).) Unlike FEHA, the ADA does 

not define the term “disability” itself as including association with the disabled. Instead, 

it defines discrimination based on association as one type of “‘discriminat[ion] against a 

qualified individual on the basis of disability.’” Elsewhere, the ADA states 

“‘discriminat[ing] against a qualified individual on the basis of disability’” also includes 

“not making reasonable accommodations to the known physical or mental limitations of 

an otherwise qualified individual with a disability who is an applicant or employee.” (42 

U.S.C. § 12112(b)(5)(A), italics added.) One cannot, therefore, read “association with a 

disabled person” into every use of the term “disability” in the ADA.

Because of these structural differences, including differences in language for 

associational disability accommodation, federal precedent (e.g., Erdman v. Nationwide 
13

Ins. Co. (3d Cir. 2009) 582 F.3d 500, 510; Larimer v. International Business Machines 

Corp. (7th Cir. 2004) 370 F.3d 698, 700 (Larimer); Den Hartog v. Wasatch Academy

(10th Cir. 1997) 129 F.3d 1076, 1084; Tyndall v. National Educ. Centers (4th Cir. 1994) 

31 F.3d 209, 214) is less helpful than in other FEHA interpretations.

Since we are not tasked to decide whether either FEHA or the ADA creates a 

failure to accommodate cause of action based on associational disability, we next turn to 

DHE’s principal argument on appeal—that its motion for summary judgment was 

properly granted because there is no triable issue of fact as to either discriminatory 

motive or pretext.4

c. Triable Issues of Material Fact Exist as to Discriminatory Motive and Pretext

Moving to DHE’s challenge to the evidence of discriminatory motive and pretext, 

our starting point is Rope. Rope relied substantially on Larimer, which the Rope court 

described as “the seminal authority on disability-based associational discrimination under 

the ADA.” (Rope, supra, 220 Cal.App.4th at p. 656.)

In Larimer, the court opined that “[t]hree types of situation are, we believe, within 

the intended scope of the rarely litigated . . . association section [of the ADA]. We’ll call 

them ‘expense,’ ‘disability by association,’ and ‘distraction.’” (Larimer, supra, 370 F.3d 

at p. 700.) The court continued: “They can be illustrated as follows: an employee is 

fired (or suffers some other adverse personnel action) because (1) (‘expense’) his spouse 

has a disability that is costly to the employer because the spouse is covered by the 

company’s health plan; (2a) (‘disability by association’) the employee’s homosexual 

companion is infected with HIV and the employer fears that the employee may also have 

become infected, through sexual contact with the companion; (2b) (another example of 

 

4 The dissent criticizes the limitations we established for supplemental briefing, 

arguing that our discussion of discriminatory motive and pretext “hinges entirely on 

Junior’s failure to accommodate plaintiff’s request for a different shift” (dis. opn., post, at 

p. 4), and we therefore should have permitted briefing on the failure to accommodate 

issue. As we have stated in the text, we do not decide the accommodation issue. Instead,

we conclude there is a triable issue of fact as to associational disability discrimination. 

That issue was fully briefed in respondent’s brief at pages 23-37.
14

disability by association) one of the employee’s blood relatives has a disabling ailment 

that has a genetic component and the employee is likely to develop the disability as well 

(maybe the relative is an identical twin); (3) (‘distraction’) the employee is somewhat 

inattentive at work because his spouse or child has a disability that requires his attention, 

yet not so inattentive that to perform to his employer’s satisfaction he would need an 

accommodation, perhaps by being allowed to work shorter hours.” (Larimer, supra, 370 

F.3d at p. 700.)5

Rope acknowledged the three categories in which Larimer found a motive for 

associational disability discrimination (expense, disability by association, and 

distraction). At the same time, Rope observed that Larimer “provided an ‘illustrat[ive],’ 

rather than an exhaustive, list of the kind of circumstances which might trigger a claim of 

associational discrimination.” (Rope, supra, 220 Cal.App.4th at p. 657.) “[A]nd more 

importantly, Larimer was decided under the ADA; the provisions of FEHA are broadly 

construed and afford employees more protection than the ADA.” (Ibid.; see § 12926.1, 

subd. (a).) So while the Rope plaintiff’s alleged facts did not “fit neatly within” one of 

Larimer’s three categories, the court concluded the plaintiff had sufficiently pleaded a 

prima facie “‘expense’” claim for associational disability discrimination. (Rope, supra, at

p. 657.)

In Rope, the employer hired the plaintiff in late 2010. When hired, he allegedly

informed the employer that he intended to take a leave of absence to donate a kidney to 

his sister in February 2011. He requested a paid leave of absence to do so, under a thennew statute requiring the employer to provide paid leave. Two days before the statute 

took effect on January 1, 2011, the employer terminated him on the allegedly pretextual 

 

5 Larimer inserted the “qualification concerning the need for an accommodation” 

into category three “because the right to an accommodation, being limited to disabled 

employees, does not extend to a nondisabled associate of a disabled person” under the 

ADA. (Larimer, supra, 370 F.3d at p. 700.) FEHA and the ADA differ structurally in 

the way they create causes of action for associational disability discrimination, as we 

noted in part 1.b.
15

basis of poor performance. (Rope, supra, 220 Cal.App.4th at pp. 642-643, 658.) The 

“reasonable inference” from these facts was that the employer “acted preemptively to 

avoid an expense stemming from [the plaintiff’s] association with his physically disabled 

sister.” (Id. at p. 658.) The plaintiff had therefore met his burden “to show the adverse 

employment action occurred under circumstances raising a reasonable inference that the 

disability of his relative or associate was a substantial factor motivating the employer’s 

decision.” (Ibid.)

We agree with Rope that Larimer provides an illustrative, rather than an 

exhaustive, list of the kinds of circumstances in which we might find associational 

disability discrimination. The common thread among the Larimer categories is simply

that they are instances in which the “employer has a motive to discriminate against a 

nondisabled employee who is merely associated with a disabled person.” (Larimer, 

supra, 370 F.3d at p. 702.) As we discuss above, this is an element of a plaintiff’s prima 

facie case—that the plaintiff’s association with a disabled person was a substantial 

motivating factor for the employer’s adverse employment action. Rope held the alleged 

facts in that case could give rise to an inference of such discriminatory motive. Our facts 

do not fit neatly within one of the Larimer categories either, but a jury could reasonably 

infer the requisite discriminatory motive.

A jury could reasonably find from the evidence that plaintiff’s association with his 

disabled son was a substantial motivating factor in Junior’s decision to terminate him, 

and, furthermore, that Junior’s stated reason for termination was a pretext. Junior knew 

that plaintiff needed to finish his assigned route at a time that permitted him to administer 

dialysis to his son. Bermudez told Junior of plaintiff’s needs in this respect and asked 

Junior to work with plaintiff when Junior took over as plaintiff’s supervisor. That same 

month, plaintiff complained to Bermudez that Junior was scheduling him later than usual, 

prompting Bermudez to remind Junior of plaintiff’s need to be home for his son’s 

dialysis. Despite knowing plaintiff’s need to be home early, the month after Junior took 

over, he scheduled plaintiff for a shift that started at noon, later than plaintiff had ever 

started before. Junior did this even though eight other shifts well before noon were 
16

available, and even though DHE’s customer had specifically requested that plaintiff—the 

customer’s regular driver—do their 7:00 a.m. deliveries. There was no apparent reason

why Junior could not have scheduled plaintiff for one of these earlier shifts. (The 

explanation Junior proffered earlier for not assigning plaintiff the 7:00 a.m. shift was 

false. Junior told plaintiff the customer was unhappy with his work and did not want him 

making the customer’s deliveries; in fact, the customer’s feedback was quite the opposite, 

and plaintiff never had any performance issues at DHE.) Plaintiff told Junior he could 

not work the shift and route assigned to him because he had to be home to administer 

dialysis to his son, but he asked to return the next day for an assignment. It should have 

been apparent plaintiff was not acting in bad faith or simply being insubordinate. Yet 

Junior ignored plaintiff’s requests. Instead, he laughed and told plaintiff Bermudez was 

not in charge anymore. Even though DHE’s policies allowed for less severe disciplinary 

action than termination, for plaintiff’s one-time refusal to work the shift assigned to him, 

Junior terminated him.

One reasonable inference from these facts is that Junior, as the person responsible 

for scheduling the drivers, wanted to avoid the inconvenience and distraction plaintiff’s 

need to care for his disabled son posed to Junior. Thus, Junior engineered a situation in 

which plaintiff would refuse to work the shift, giving Junior reason to terminate him. In 

other words, plaintiff’s termination for refusal to work the shift was a pretext for Junior’s 

desire to be rid of someone whose disabled associate made Junior’s job harder. Just as 

the facts in Rope gave rise to the inference that the employer acted preemptively to avoid 

the expense of paid leave (Rope, supra, 220 Cal.App.4th at p. 658), these facts may give 

rise to the inference that Junior acted proactively to avoid the nuisance plaintiff’s 

association with his disabled son would cause Junior in the future.

DHE contends a fact finder could not infer discriminatory motive from Junior’s 

actions because it is undisputed that plaintiff had no “set” schedule, he worked a nearly 

identical shift the day before his termination with no problems, and the time at which he 

administered dialysis to his son was “fully within his discretion.” DHE suggests these

facts show Junior had no reason to know plaintiff would refuse to work the shift assigned 
17

to him. But none of this evidence negated Junior’s demonstrated knowledge that plaintiff 

had a disabled son at home constraining his schedule. Plaintiff may not have had a set 

schedule in the sense that he did not start or finish his shifts at the exact same time every 

day, but he had a typical schedule that allowed him to start around 9:00 or 10:00 a.m. and 

finish by 7:00 or 8:00 p.m. Furthermore, to say plaintiff had full discretion as to what

time he could administer dialysis mischaracterizes plaintiff’s responsibility. It is not as 

though plaintiff had the freedom to administer dialysis at a time of his choosing. The 

way plaintiff described it, the time varied based on his son’s condition. On some days, 

his son’s condition would worsen and he would need to be connected to the machine for a 

longer period of time. Plaintiff had learned how to check his son’s condition and, on that 

basis, determine when he would need dialysis. Plaintiff could work the shift starting at 

11:55 a.m. one day before his termination because it did not involve a route to far-away 

Oxnard and permitted him to be home in time for dialysis. The facts are that Junior knew 

plaintiff had a special need related to his disabled son, and plaintiff told Junior that was 

the reason he could not work the shift on April 23, 2013. Plaintiff was able to perform 

satisfactorily for over three years with the schedule that previous supervisors provided,

until Junior took over and fired plaintiff shortly after becoming his supervisor.

Viewing the evidence in a light favorable to the nonmoving party and indulging

the reasonable inferences in his favor, as we must, plaintiff has demonstrated a triable 

issue of material fact in response to DHE’s showing. (Miller v. Department Corrections

(2005) 36 Cal.4th 446, 470 (Miller) [“We stress that, because this is an appeal from a 

grant of summary judgment in favor of defendants, a reviewing court must examine the 

evidence de novo and should draw reasonable inferences in favor of the nonmoving 

party. [Citation.] We believe the Court of Appeal failed to draw such inferences and 

took too narrow a view of the surrounding circumstances.”].)

A relatively recent district court case, Kouromihelakis v. Hartford Fire Ins. Co. 

(D. Conn. 2014) 48 F.Supp.3d 175, is instructive. Kouromihelakis denied an employer’s 

motion to dismiss the plaintiff’s claim that he was fired because of the known disability 

of his father. The plaintiff alleged that he had to regularly assist in the care of his 
18

disabled father, who suffered a debilitating stroke; his job performance was excellent; he 

periodically did not report for work by 9:00 a.m.; the employer was aware of his father’s 

disability and the reason for the plaintiff’s tardiness; the plaintiff asked for, but was 

refused, a change in hours under the employer’s “flex time” policy to accommodate his 

duties to his disabled father; and the employer terminated him after he arrived late one 

day. (Id. at pp. 178, 180-181.) The court concluded these allegations were sufficient to 

plead a plausible “‘distraction’” claim under Larimer, and, viewed in a light most 

favorable to the plaintiff, supported “a reasonable inference that the defendant terminated 

the plaintiff’s employment based on a belief about future absences.” (Kouromihelakis, at

pp. 180-181.) Like Kouromihelakis, the evidence here gives rise to the reasonable 

inference that Junior terminated plaintiff based on a belief that plaintiff would want 

earlier shifts in the future. Neither Kouromihelakis nor this case fit neatly within the 

distraction paradigm set forth in Larimer, but a neat fit is not required.

The cases on which DHE principally relies do not advance its case. In Ennis v. 

National Assn. of Bus. and Educ. Radio, Inc. (4th Cir. 1995) 53 F.3d 55 (Ennis), the court 

affirmed summary judgment for the employer because the plaintiff could not establish at 

least two elements of her prima facie case: (1) “at the time of the discharge, she was 

performing her job at a level that met her employer’s legitimate expectations”; and (2) 

“her discharge occurred under circumstances that raise a reasonable inference of unlawful 

discrimination.” (Id. at p. 58.) She could not show she was performing her job 

adequately because the employer had extensively documented numerous instances of 

poor job performance over the course of several years. (Id. at pp. 61-62.) Her employer 

terminated her for poor job performance. (Id. at p. 57.) She could not show her 

association with her HIV-positive minor son instead motivated her termination,

especially in light of the strong evidence that she had performed poorly for years. (Id. at

p. 62.) She had no facts credibly giving rise to an inference of unlawful discrimination. 

(Ibid.) Here, by contrast, there was no issue with plaintiff’s performance, and thus no 

concomitant showing that he was legitimately terminated. It was undisputed that he was 

performing satisfactorily during his entire time with DHE. His request for an earlier 
19

schedule only became an issue when Junior took over, and his onetime refusal to work a 

shift does not equate with the Ennis plaintiff’s poor performance over several years.

Magnus v. St. Mark United Methodist Church (7th Cir. 2012) 688 F.3d 331, 339,

is also distinguishable. In Magnus, the plaintiff asserted her employer terminated her 

because of her association with her mentally disabled daughter, emphasizing that the 

termination came two weeks after she received a merit-based raise, and one day after she 

arrived at work an hour late due to a medical situation with her daughter. (Id. at p. 333.) 

But the undisputed evidence showed the raise was an across-the-board increase given to 

all full-time employees regardless of merit, and the employer had decided to terminate 

her the weekend before she arrived late to work. (Id. at pp. 333-334, 338-339.) The 

plaintiff could not rebut the employer’s legitimate, nondiscriminatory reasons for its 

actions. The employer based the termination on numerous documented performance 

deficiencies and her refusal to work weekends (because of the need to care for her 

daughter). (Id. at pp. 335-336, 338.) The court observed that the plaintiff’s true 

complaint was that the church failed to accommodate her need to care for her disabled 

daughter because it mandated that she work weekends—but the ADA did not require 

employers to reasonably accommodate for an employee’s association with a disabled 

person. (Magnus, at pp. 334, 339.) FEHA, however, differs structurally from the ADA 

when defining associational disability causes of action. Further, like in Ennis, the many 

performance deficiencies in Magnus also justified the plaintiff’s termination, not just a 

one-time refusal to work that appears to have been engineered.

In sum, DHE failed to show it was entitled to summary adjudication of the 

associational disability discrimination cause of action. Plaintiff’s evidence gives rise to

reasonable inferences of discriminatory motive and pretext.

2. Retaliation

The retaliation provision of FEHA forbids an employer “to discharge, expel, or 

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

forbidden under” FEHA. (§ 12940, subd. (h).) “Employees may establish a prima facie 

case of unlawful retaliation by showing that (1) they engaged in activities protected by 
20

the FEHA, (2) their employers subsequently took adverse employment action against 

them, and (3) there was a causal connection between the protected activity and the 

adverse employment action.” (Miller, supra, 36 Cal.4th at p. 472.)

DHE asserts plaintiff cannot establish retaliation because he lacks evidence of a 

protected activity, and even if he engaged in protected activity, he cannot show a causal 

link between that activity and the adverse employment action. We are not persuaded that 

DHE is entitled to summary adjudication on these grounds.

“Retaliation claims are inherently fact-specific” (Yanowitz v. L’Oreal USA, Inc.

(2005) 36 Cal.4th 1028, 1052 (Yanowitz)), and “protected conduct can take many forms” 

(id. at p. 1042). “Standing alone, an employee’s unarticulated belief that an employer is 

engaging in discrimination will not suffice to establish protected conduct for the purposes 

of establishing a prima facie case of retaliation, where there is no evidence the employer 

knew that the employee’s opposition was based upon a reasonable belief that the 

employer was engaging in discrimination.” (Id. at p. 1046.) “[C]omplaints 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 p. 1047.)

But employees need not explicitly and directly inform their employer that they 

believe the employer’s conduct was discriminatory or otherwise forbidden by FEHA. 

(Yanowitz, supra, 36 Cal.4th at p. 1046.) “‘[A]n employee is not required to use legal 

terms or buzzwords when opposing discrimination. The court will find opposing activity 

if the employee’s comments, when read in their totality, oppose discrimination.’” (Id. at

p. 1047.) “We do not believe employees should be required to elaborate to their 

employer on the legal theory underlying the complaints they are making, in order to be 

protected by the FEHA.” (Miller, supra, 36 Cal.4th at p. 474.) “[C]ourts should 

recognize that plaintiffs have limited legal knowledge.” (Ibid., citing Moyo v. Gomez

(9th Cir. 1994) 40 F.3d 982, 985.) FEHA does not protect “‘only the impudent or 

articulate. The relevant question . . . is not whether a formal accusation of discrimination 

is made but whether the employee’s communications to the employer sufficiently convey 
21

the employee’s reasonable concerns that the employer has acted or is acting in an 

unlawful discriminatory manner.’” (Yanowitz, supra, at p. 1047.) Further, FEHA need 

not actually prohibit the conduct of which the employee complains. (Miller, supra, 36 

Cal.4th at p. 473.) All that is required is an employee’s good faith belief that the conduct 

was unlawful. (Ibid.) Employees’ belief that they are complaining about prohibited 

conduct “may be inferred from the nature and content of their repeated complaints. The 

issue of a plaintiff’s subjective, good faith belief involves questions of credibility and 

ordinarily cannot be resolved on summary judgment.” (Id. at p. 476.)

Two California Supreme Court cases in particular illustrate the principle that 

employees need not complain with the clarity and precision of lawyers to engage in 

protected conduct: Miller and Yanowitz. In Miller, the plaintiffs asserted they

complained about improper sexual relationships between a supervisor and several of his 

subordinates, favoritism accorded to those subordinates, and subsequent hostile or 

harassing treatment by those subordinates after the plaintiffs expressed their complaints. 

(Miller, supra, 36 Cal.4th at pp. 452, 472-473.) The Court of Appeal concluded that, 

although the plaintiffs opposed the supervisor’s conduct, “they had not expressed 

opposition to sex discrimination or sexual harassment. As the court understood the 

record, ‘[p]laintiffs were not complaining about sexual harassment but unfairness. This is 

not protected activity under the FEHA.’” (Id. at p. 474.) The Court of Appeal concluded 

the defendants were entitled to summary judgment on the plaintiffs’ retaliation claim. 

(Id. at p. 460.) Our Supreme Court reversed, holding that although the plaintiffs “may 

not have recited the specific words ‘sexual discrimination’ or ‘sexual harassment,’ the 

nature of their complaint certainly fell within the general purview of FEHA, especially 

when we recall that this case is before us on review of a grant of summary judgment.” 

(Id. at p. 475.)

In Yanowitz, the plaintiff’s manager instructed her to terminate a dark-skinned 

female sales associate at a retail store because he did not consider the sales associate to be 

sufficiently physically attractive. (Yanowitz, supra, 36 Cal.4th at p. 1038.) In response, 

the plaintiff asked the manager for an adequate justification for terminating the sales 
22

associate. (Ibid.) On several subsequent occasions, the manager asked the plaintiff if she 

had fired the sales associate, and the plaintiff each time asked for adequate justification. 

(Ibid.) The plaintiff ultimately refused to terminate the sales associate. She never 

explicitly told the manager that she believed his order was discriminatory. (Ibid.) Our 

Supreme Court held “a trier of fact properly could find that [the manager] knew that [the 

plaintiff’s] refusal to comply with his order to fire the sales associate was based on [the 

plaintiff’s] belief that [the manager’s] order constituted discrimination on the basis of 

sex—that is, the application of a different standard to a female employee than that 

applied to male employees—and that her opposition to the directive thus was not merely 

an unexplained insubordinate act bearing no relation to suspected discrimination. 

[Citation.] A trier of fact properly could find that by repeatedly refusing to implement 

the directive unless [the manager] provided ‘adequate justification,’ [the plaintiff]

sufficiently conveyed to [the manager] that she considered the order to be discriminatory 

and put him on notice that he should reconsider the order because of its apparent 

discriminatory nature.” (Id. at p. 1048.) Thus, the plaintiff’s evidence permitted a

reasonable trier of fact to find that she engaged in protected activity. (Ibid.)

Likewise, here, the evidence would permit a reasonable trier of fact to find 

protected activity. Plaintiff complained to Bermudez in March 2013 that Junior had 

changed his hours so that he was having problems tending to his son. Bermudez 

communicated the complaint about the change in hours to Junior. Junior already knew 

that plaintiff sought earlier hours because of his obligation to care for his disabled son—

Bermudez told Junior this when Junior took over. When Junior assigned plaintiff a later 

shift on April 22, 2013, the day before his termination, plaintiff worked it, but 

complained to Junior that he had “always had help from everyone except you,” and 

pleaded with Junior “to have my job like always.” The following day, plaintiff expressed 

opposition to the shift Junior assigned him because he could not return in time to care for 

his son, and plaintiff refused to work it. Junior terminated him directly.

The trier of fact could reasonably find that plaintiff’s repeated complaints to 

Bermudez and Junior about the change in his scheduling, when both knew that he needed
23

earlier hours to administer dialysis to his son, constituted opposition to the denial of an

accommodation in his schedule. Put otherwise, plaintiff showed opposition to a practice 

he believed was unlawful (§ 12940, subd. (h)). Tied as the complaints were to his son’s 

disability, the trier of fact also could find that Junior had reason to know plaintiff’s 

complaints were not just an unexplained insubordinate act bearing no relation to 

perceived unlawful practices. Rather, one hearing plaintiff’s complaints could infer that 

plaintiff believed the denial of an accommodated schedule to care for his son was 

unlawful. He need not have used the terms “unlawful” or “reasonable accommodation”

themselves. Even assuming FEHA did not actually require DHE to reasonably 

accommodate plaintiff based on his son’s disability, plaintiff’s good faith belief that DHE 

was acting unlawfully was sufficient. (Yanowitz, supra, 36 Cal.4th at p. 1043.)

The evidence would also permit a trier of fact to infer a causal link between 

plaintiff’s complaints and his termination. Proximity in time between the employee’s 

protected activity and the adverse employment action satisfies the employee’s prima facie 

burden. (McRae v. Department of Corrections & Rehabilitation (2006) 142 Cal.App.4th 

377, 388.) Plaintiff’s termination came the month after his first complaint and on the 

heels of his last two complaints. To the extent DHE argues it has offered evidence of a 

legitimate, nondiscriminatory reason to terminate plaintiff (his refusal to work), we have 

explained in part 1 that a trier of fact could find this reason pretextual.

DHE additionally maintains that, at best, plaintiff’s remarks constituted a request 

for reasonable accommodation, not a complaint that Junior denied him a reasonable 

accommodation he previously received. DHE cites Rope for the proposition that “a mere 

request—or even repeated requests—for an accommodation, without more,” do not 

constitute protected activity. (Rope, supra, 220 Cal.App.4th at p. 652; accord Nealy v. 

City of Santa Monica, supra, 234 Cal.App.4th at p. 381 [relying on Rope to hold that 

“protected activity does not include a mere request for reasonable accommodation”].)

We note that Rope is no longer good law on that point. On July 16, 2015, the 

Governor approved a bill superseding Rope on this issue (Assem. Bill No. 987 (2015-

2016 Reg. Sess.)). This amendment to section 12940, effective January 1, 2016, makes it 
24

unlawful for an employer to retaliate or otherwise discriminate against a person for 

requesting a reasonable accommodation, regardless of whether the employer granted the 

request. (§ 12940, subd. (m)(2).) The Legislature’s findings in enacting the amendment 

included this: “Notwithstanding any interpretation of this issue in Rope . . . , the 

Legislature intends (1) to make clear that a request for reasonable accommodation on the 

basis of religion or disability is a protected activity, and (2) by enacting paragraph (2) of 

subdivision (m) . . . , to provide protection against retaliation when an individual makes a 

request for reasonable accommodation under these sections, regardless of whether the 

request was granted. With the exception of its holding on this issue, Rope . . . remains 

good law.” (Stats. 2015, ch. 122, § 1, subd. (d), approved by Governor, July 16, 2015.)

DHE contends Assembly Bill No. 987 (2015-2016 Reg. Sess.) does not apply 

retroactively to this case to make a request for accommodation protected activity.

6 “A 

statute has retrospective effect when it substantially changes the legal consequences of 

past events.” (Western Security Bank v. Superior Court (1997) 15 Cal.4th 232, 243.) To 

decide whether an amendment applies to actions that occurred before its enactment, the 

court asks as a threshold matter whether the amendment merely clarified existing law or 

changed existing law. (McClung v. Employment Development Dept. (2004) 34 Cal.4th 

467, 471.) “[A] statute that merely clarifies, rather than changes, existing law does not 

operate retrospectively even if applied to transactions predating its enactment” “because 

the true meaning of the statute” was always the same. (Western Security Bank v. 

Superior Court, supra, at p. 243.) “In that event, . . . liability would have existed at the 

time of the actions, and the amendment would not have changed anything.” (McClung v. 

Employment Development Dept., supra, at p. 472.) But if the amendment changed the 

 

6 Plaintiff raised Assembly Bill No. 987 (2015-2016 Reg. Sess.) in his reply brief, 

and the bill became effective after briefing in this matter was complete. Our original 

opinion in this matter discussed and relied on Assembly Bill No. 987. DHE filed a 

petition for rehearing arguing in part that we should permit supplemental briefing on 

whether Assembly Bill No. 987 operates retroactively. We granted the petition in this 

respect and permitted supplemental briefing, but as we discuss, we ultimately need not 

decide the retroactivity issue.
25

law and imposed liability for earlier actions, the court must decide if the change applies 

retroactively. (Ibid.)

DHE argues Assembly Bill No. 987 (2015-2016 Reg. Sess.) effected a change in 

the law, which change applies prospectively only; therefore, Rope governs and precludes 

plaintiff’s retaliation cause of action. Plaintiff, on the other hand, argues Assembly Bill 

No. 987 merely clarified existing law such that Assembly Bill No. 987 applies to acts 

predating its enactment. We need not decide whether Assembly Bill No. 987 applies in 

this case.7 Even assuming it achieved a change in the law that does not apply 

retroactively, and thus Rope is not superseded for our purposes, Rope does not dictate that 

we adjudicate the retaliation cause of action in DHE’s favor.

As we have explained, Rope held that mere requests for accommodation without

anything more did not represent protected activity. (Rope, supra, 220 Cal.App.4th at

p. 652.) Rope emphasized that protected activity consists of “oppos[ing] any practices 

forbidden” by FEHA (§ 12940, subd. (h)), while mere requests for an accommodation do 

not “demonstrate some degree of opposition to or protest of the employer’s conduct.” 

(Rope, supra, at pp. 652-653; accord Nealy v. City of Santa Monica, supra, 234 

Cal.App.4th at p. 381 [request for an accommodation and engaging in the interactive 

process with employer did not amount to “‘oppos[ing] any practices forbidden under’ 

FEHA”].) Plaintiff here did more than simply request an accommodation. A reasonable 

juror could find that his repeated complaints about the sudden changes to his schedule 

represented “some degree of opposition” to DHE’s failure to continue to provide that 

schedule. In other words, we disagree with DHE’s characterization that, at best, 

plaintiff’s remarks constituted a mere request for reasonable accommodation.

 

7 Our colleagues in the Fourth District recently considered these issues in Moore v. 

Regents of the University of California (2016) 248 Cal.App.4th 216.) They held that 

Assembly Bill No. 987 (2015-2016 Reg. Sess.) represented a change in the law, not a 

clarification, and Assembly Bill No. 987 did not operate retroactively. (Moore, at 

pp. 246-247.)
26

3. Failure to Prevent Discrimination and Wrongful Termination in Violation of 

Public Policy

In DHE’s moving papers, it stated one argument against the causes of action for 

failure to prevent discrimination and wrongful termination—that they failed as a matter 

of law when no discrimination or other unlawful conduct in violation of public policy 

occurred. On appeal, DHE argues the same. Given that DHE is not entitled to summary 

adjudication on the discrimination and retaliation causes of action, it has not shown it is 

entitled to summary adjudication on failure to prevent discrimination and wrongful 

termination.

4. Costs Appeal

The court awarded DHE costs as the prevailing party in the action. Plaintiff 

appealed from the court’s order denying his motion to tax costs. Because we are 

reversing the judgment, and DHE is no longer the prevailing party, DHE is no longer 

entitled to costs. The order denying the motion to tax costs is also reversed.

DISPOSITION

The judgment in B261165 is reversed. On appeal, plaintiff has challenged the 

court’s ruling on only four of his eight causes of action. The court shall enter an order 

granting DHE’s motion for summary adjudication on the causes of action plaintiff has 

abandoned: (1) failure to provide reasonable accommodation, (2) failure to engage in 

good faith interactive process, (3) hostile work environment, and (4) failure to prevent 

harassment. The court’s order shall deny summary adjudication on the remaining causes 

of action: (1) disability discrimination, (2) failure to prevent discrimination, (3) 

retaliation, and (4) wrongful termination in violation of public policy. The order denying 

the motion to tax costs in B262524 is reversed. Plaintiff shall recover his costs on appeal.

FLIER, J.

I CONCUR:

RUBIN, Acting P. J.
1

Castro-Ramirez v. Dependable Highway Express, Inc.

B261165; B262524

Grimes, J., Dissenting.

Respectfully, I dissent.

The majority in the original published opinion in this appeal, filed April 4, 2016, 

held that FEHA creates a duty according to the plain language of the Act to provide 

reasonable accommodations to an applicant or employee who is associated with a 

disabled person. The present majority opinion has retreated from that holding. My 

colleagues state they do not decide whether FEHA establishes a separate duty to 

reasonably accommodate employees who associate with a disabled person. (Maj. opn. 

ante, at p. 9.) The majority neither acknowledges its prior holding nor explains the 

retreat from it. The majority does, however, “find accommodation relevant as to 

plaintiff’s discrimination cause of action.” (Maj. opn. ante, at p. 10.) And, while 

repeating that it does not decide the point, the majority observes that Government Code 

section 12940, subdivision (m)1 – making it unlawful to fail to reasonably accommodate 

the known physical disability of an applicant or employee – “may reasonably be 

interpreted to require accommodation based on the employee’s association with a 

physically disabled person.” (Maj. opn. ante, at pp. 10-11.)

While ordinarily I would not discuss an undecided issue, I am compelled to do so 

here. For while the majority purports not to decide whether FEHA requires an employer 

to reasonably accommodate employees who associate with a disabled person, in my view 

the majority in effect has done just that. I disagree with the majority’s approach for four 

reasons. 

First, despite the grant of rehearing in this case, the majority explicitly refused to 

allow the parties to brief the critical issue of whether and how accommodation is relevant 

to plaintiff’s discrimination cause of action. Second, I cannot agree with the majority’s 

proposition that the ADA and the federal cases decided under it are “easily distinguished” 

 

1 Further statutory references are to the Government Code. 
2

and that we should “part ways with federal case authority” because the statutory language 

in the ADA is not parallel with FEHA. (Maj. opn. ante, at p. 12.) On the contrary, I see 

no reason to construe FEHA as departing from the ADA on this issue. Third, unless there 

is a duty to adjust the work schedule of a nondisabled employee to accommodate the 

needs of a disabled associate, there is no evidence from which to infer the defendant 

employer here discriminated against plaintiff when it assigned a shift that did not meet 

those needs, and fired plaintiff for refusing the assignment. Fourth, plaintiff did not 

demonstrate a material factual dispute whether he engaged in a protected activity to 

support a retaliation claim, because under the law in effect during his employment with 

defendant, repeated requests for an accommodation, without more, did not constitute 

protected activity. In short, the conduct at the heart of plaintiff’s claim is defendant’s 

refusal to assign a shift that would allow plaintiff to tend to his disabled son. No 

authority has held an employer must do so, and nor should we.

1. The Majority Did Not Comport With Government Code Section 68081 In 

Partially Denying Defendant's Petition For Rehearing.

In my earlier dissent, I pointed out that plaintiff expressly told us in his briefs he 

had abandoned the theory that an employer has a duty to accommodate a nondisabled 

employee who is associated with a disabled person. The majority states that plaintiff 

abandoned the reasonable accommodation cause of action. (Maj. opn. ante, at p. 9.) Not 

so; plaintiff did not merely abandon one cause of action. He expressly abandoned the 

premise of a duty to accommodate a disabled associate. Plaintiff repeatedly told us “this 

is not an accommodation case.” Plaintiff asserted the issue “whether reasonable 

accommodations are available to the associates of the disabled . . . is not before this 

Court.”

Instead, plaintiff asserted that even if he was not entitled to an accommodation 

under FEHA, he was “entitled to an intermittent medical leave of absence to care for his 

disabled son pursuant to the CFRA [California Family Rights Act (§ 12945.2)], at least 

on the day he was terminated.” Plaintiff stated: “The fact that [defendant] may not have 

discriminated because it was not obligated to affirmatively act to protect [plaintiff’s] 
3

employment under one set of laws (the reasonable accommodation provision of the 

FEHA) does not mean it did not discriminate when another set of laws (the child care 

leave provision of the CFRA) obligated [defendant] to affirmatively act to protect his 

employment. In effect, the CFRA forbade [defendant] from terminating [plaintiff] on 

April 23, 2013 after he voiced his inability to work his schedule for the day because of 

his child care obligations to his disabled son.”

Undeterred by the absence of briefing on an issue that no party proposed, the 

majority held in the opinion filed April 4, 2016, that FEHA creates a duty to 

accommodate a nondisabled employee who is associated with a disabled person.

Thereafter, defendant petitioned for rehearing on three grounds, the first two of 

which are these: “First, the Court based its decision to reverse the dismissal of Plaintiff’s 

associational disability discrimination claim on its determination that [FEHA] requires 

employers to accommodate non-disabled employees with disabled relatives. However, 

Plaintiff did not appeal the dismissal of his failure to accommodate claim under FEHA 

and expressly abandoned this theory of liability on appeal. Thus, neither party briefed the 

issue. [¶] Second, the Court based its decision to reverse the dismissal of Plaintiff’s 

retaliation claim in part on its determination that Plaintiff engaged in protected conduct 

by requesting an accommodation. In coming to this conclusion, however, the Court 

relied on a change in the law, the legislature’s enactment of AB987, which occurred 

during the parties’ briefing process. AB987 amended FEHA to state that requests for 

accommodation are protected activity. However, the Court never requested supplemental 

briefing on the issue of whether AB987 operates retroactively, which [defendant] 

contends it does not. Thus, [defendant] never had an opportunity to brief this issue, as 

Plaintiff raised it for the first time in his reply brief.”

The majority issued an order on April 27, 2016, granting in part and denying in 

part the petition for rehearing. The order granted the parties permission to brief only the 

second issue, “whether the amendment to Government Code section 12940, 

subdivision (m), effective January 1, 2016 [(Assem. Bill No. 987)], applies in this case.” 

Assembly Bill No. 987 went into effect more than two years after plaintiff’s termination 
4

of employment with defendant. After the parties submitted their briefs, Moore v. Regents 

of the University of California (2016) 248 Cal.App.4th 216 (Moore) was decided. Moore 

held that Assembly Bill No. 987 represented a change in the law, not a clarification, and 

Assembly Bill No. 987 did not operate retroactively. (Moore, at p. 247.) The majority 

now finds it need not decide this issue.

Likewise, the majority now says it does not decide whether FEHA establishes a 

separate duty to reasonably accommodate employees who associate with a disabled 

person. However, the majority finds accommodation relevant to plaintiff’s 

discrimination cause of action. (Maj. opn. ante, at pp. 9, 10.) The majority reasons that 

“when section 12940, subdivision (m) requires employers to reasonably accommodate 

‘the known physical . . . disability of an applicant or employee,’ read in conjunction with 

other relevant provisions, subdivision (m) may reasonably be interpreted to require 

accommodation based on the employee’s association with a physically disabled person. 

Again, given plaintiff’s concession, we do not decide this point. We only observe that 

the accommodation issue is not settled and that it appears significantly intertwined with 

the statutory prohibition against disability discrimination . . . .” (Maj. opn. ante, at 

pp. 10-11.)

The majority’s discussion of what it perceives as triable issues of material fact as 

to discriminatory motive and pretext (maj. opn. ante, at pp. 15-17) hinges entirely on 

Junior’s failure to accommodate plaintiff’s request for a different shift so he could care 

for his disabled son.

Defendant’s petition for rehearing sought permission to brief the accommodation 

issue that the majority characterizes as “not settled.” As set forth above, defendant’s first 

basis for seeking rehearing was that “the Court based its decision to reverse the dismissal 

of Plaintiff’s associational disability discrimination claim on its determination that 

[FEHA] requires employers to accommodate non-disabled employees with disabled 

relatives.” The majority opinion does not comport with section 68081 because it rests on 

an issue that no party proposed and that was never briefed, even after defendant timely 

petitioned for rehearing to brief that issue. Section 68081 provides that before issuing a 
5

decision, “based upon an issue which was not proposed or briefed by any party to the 

proceeding, the court shall afford the parties an opportunity to present their views on the 

matter through supplemental briefing.” And “[i]f the court fails to afford that 

opportunity, a rehearing shall be ordered upon timely petition . . . .” (Ibid.)

Ten years after section 68081’s enactment, the Court of Appeal expressed the 

“significant principle” that “judges, including appellate judges, are required to follow the 

law. In this case, the Appellate Department of the Los Angeles Superior Court decided a 

case on a point not raised by the parties, and without notice to the parties that it might do 

so.” (California Casualty Ins. Co. v. Appellate Department (1996) 46 Cal.App.4th 1145, 

1147 (California Casualty).)

In California Casualty, the defense in a court trial elicited an expert opinion over 

plaintiff’s objection. On appeal, the plaintiff argued the opinion was inadmissible and the 

error was prejudicial. The defendant responded there was no abuse of discretion and no 

prejudice. The Appellate Department scrutinized the record to determine if the expert 

opinion was admissible and in doing so also scrutinized the plaintiff’s objection, 

concluding it was inadequate to preserve the issue for appellate review – an issue no 

party had asserted or briefed. The Court of Appeal found it was error to decide the case 

on that ground without warning the parties the court was considering that ground, and 

giving them an opportunity to brief it. (California Casualty, supra, 46 Cal.App.4th at 

pp. 1148-1149.) 

I believe the majority had a duty to permit briefing on the issue of whether and 

how accommodation is “relevant to” and “significantly intertwined” with plaintiff’s 

discrimination cause of action before it decided an “unsettled” issue which was not 

proposed or briefed by any party. (Adoption of Alexander S. (1988) 44 Cal.3d 857, 864-

865 [in denying a party’s request for an opportunity to submit supplemental briefing on a 

point first raised by the Court of Appeal in oral argument, the Court of Appeal did not 

comport with section 68081; Court of Appeal had a duty “upon timely request to allow 

supplemental briefing before it renders a decision which was not proposed or briefed by 

any party”].)
6

2. No Sound Basis Exists For Construing FEHA As Departing From

Federal Case Law Governing Associational Disability Discrimination 

Under The ADA.

FEHA prohibits disability discrimination. It is unlawful for an employer, 

“because of the . . . physical disability . . . of any person, to . . . discharge the person from 

employment . . . or to discriminate against the person . . . in terms, conditions, or 

privileges of employment.” (§ 12940, subd. (a).) FEHA also forbids discrimination 

based on a person’s association with a person with a physical disability. Section 12926 

provides in pertinent part that “ ‘physical disability, [and other protected characteristics]’ 

includes a perception that . . . the person is associated with a person who has, or is 

perceived to have, any of those characteristics.” (§ 12926, subd. (o).)

There is very little California authority on discrimination against a person 

associated with a disabled person. The only authority expressly involving a claim of 

associational disability discrimination is Rope v. Auto-Chlor System of Washington, Inc. 

(2013) 220 Cal.App.4th 635 (Rope). In Rope, the court concluded the plaintiff pleaded 

facts sufficient to support a claim for association-based disability discrimination. (Id. at 

p. 642.) The plaintiff alleged he informed his employer at the time he was hired in 

September 2010 that he intended to donate a kidney to his sister in February 2011. He 

requested a paid leave of absence to recuperate from the surgery, under a then-new 

statute requiring the employer to provide paid leave, effective as of January 1, 2011. 

Two days before the statute took effect, the employer terminated the plaintiff’s 

employment on the allegedly pretextual basis of poor performance. (Id. at pp. 642-643.) 

Rope observed that the “reasonable inference is that [the employer] acted 

preemptively to avoid an expense stemming from [the plaintiff’s] association with his 

physically disabled sister.” (Rope, supra, 220 Cal.App.4th at p. 658.) Rope relied on 

Judge Posner’s opinion in Larimer v. International Business Machines (7th Cir. 2004) 

370 F.3d 698 (Larimer), describing Larimer as “the seminal authority on disability-based 

associational discrimination under the ADA . . . .” (Rope, at p. 656.) 
7

In Larimer, the court identified three circumstances in which an employer might 

have a motive to discriminate against an employee who is associated with a disabled 

person, and concluded these types of situation were within the intended scope of the 

“rarely litigated” association provision of the ADA. (Larimer, supra, 370 F.3d at p. 700.) 

The court denominated the categories as “expense,” “disability by association,” and 

“distraction.” (Ibid.)

Larimer explained: “[The three types] can be illustrated as follows: an employee 

is fired (or suffers some other adverse personnel action) because (1) (‘expense’) his 

spouse has a disability that is costly to the employer because the spouse is covered by the 

company’s health plan; (2a) (‘disability by association’) the employee’s homosexual 

companion is infected with HIV and the employer fears that the employee may also have 

become infected, through sexual contact with the companion; (2b) (another example of 

disability by association) one of the employee’s blood relatives has a disabling ailment 

that has a genetic component and the employee is likely to develop the disability as well 

(maybe the relative is an identical twin); (3) (‘distraction’) the employee is somewhat 

inattentive at work because his spouse or child has a disability that requires his attention, 

yet not so inattentive that to perform to his employer’s satisfaction he would need an 

accommodation, perhaps by being allowed to work shorter hours.” (Larimer, supra, 370 

F.3d at p. 700.) As to the “distraction” category, the court continued: “The qualification 

concerning the need for an accommodation (that is, special consideration) is critical 

because the right to an accommodation, being limited to disabled employees, does not 

extend to a nondisabled associate of a disabled person.” (Ibid., citing cases and 

29 C.F.R. § 1630.8, italics added.)

In Larimer, the court affirmed summary judgment for the employer, where the 

employee was fired shortly after his twin children, who were born with a variety of 

serious medical conditions because of their prematurity, came home from the hospital. 

(Larimer, supra, 370 F.3d at p. 699.) The court held the plaintiff “must lose” because the 

case fit none of the categories the court described. (Id. at pp. 700, 701 [no evidence that 

health care costs were an issue, no evidence of communicable or genetic disease, and “no 
8

evidence that [the plaintiff] was absent or distracted at work because of his wife’s 

pregnancy or the birth and hospitalization of his daughters”].)

The majority dismisses the ADA and the federal cases construing it, saying they 

are “easily distinguished” and that we should “part ways with federal case authority” 

because the statutory language of FEHA and the ADA are “not parallel.” (Maj. opn. 

ante, at p. 12.) The majority reasons that “association with a physically disabled person 

appears to be itself a disability under FEHA” (maj. opn. ante, at p. 10), which defines a 

physical disability (and all other protected characteristics) to include a perception that 

“the person is associated with a person who has, or is perceived to have, any of those 

characteristics.” (§ 12926, subd. (o).) According to the majority, FEHA thus “differs 

structurally” from the ADA (maj. opn. ante, at p. 19), which forbids discrimination 

against a qualified individual on the basis of disability, and defines such discrimination to 

encompass “excluding or otherwise denying equal jobs or benefits to a qualified 

individual because of the known disability of an individual with whom the qualified 

individual is known to have a relationship or association . . . .” (42 U.S.C. 

§ 12112(b)(4).) 

I recognize the literal differences in wording, but I cannot agree that FEHA may 

be construed as declaring that a person with no disability ipso facto becomes “disabled” 

by association with a disabled person. I see no material difference in the purpose or 

effect of the two statutes so far as their associational disability discrimination provisions 

are concerned. FEHA, of course, is broader than the ADA. Rope and other authorities, 

and FEHA itself, confirm that the provisions of FEHA “are broadly construed and afford 

employees more protection than the ADA.” (Rope, supra, 220 Cal.App.4th at p. 657, 

citing Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 57 [“because FEHA 

‘provides protections independent from those in the [ADA]’ and ‘afford[s] additional 

protections [than the ADA]’ (§ 12926.1, subd. (a)), state law will part ways with federal 

law in order to advance the legislative goal of providing greater protection to employees 

than the ADA”].) 
9

But in many ways FEHA is similar to the ADA, and we should not construe 

FEHA as departing from the ADA without a clear legislative statement of intent to do so. 

(See generally Green v. State of California (2007) 42 Cal.4th 254, 262-263 [“In passing 

[1992 amendment to FEHA], at least one legislative analysis observed the Legislature’s 

‘conformity [to the ADA rules] will benefit employers and businesses because they will 

have one set of standards with which they must comply in order to be certain that they do 

not violate the rights of individuals with physical or mental disabilities.’ ”].) Our 

Legislature has expressly provided broader protection in FEHA than the ADA in certain 

important areas. (See Chin et al., Cal. Practice Guide: Employment Litigation (The 

Rutter Group 2015) ¶¶ 9:2091 to 9:2100, pp. 9-172 to 9-173.) Notably, the Legislature 

has not stated an intent that FEHA depart from the ADA by requiring an employer to 

accommodate a nondisabled employee with a disabled associate. 

3. The Evidence Does Not Permit An Inference That The Disability

Of Plaintiff’s Son Was A Substantial Factor Motivating The Employer’s

Decision To Terminate Plaintiff.

The majority, after “part[ing] ways with federal case authority,” and observing 

that it was “not tasked to decide whether either FEHA or the ADA creates a failure to 

accommodate cause of action based on associational disability” (maj. opn. ante, at pp. 12, 

13), finds that triable issues of material fact exist that prevent summary judgment on 

plaintiff’s associational disability discrimination claim. I again disagree, seeing no 

evidence from which to infer that the employer discriminated against plaintiff when it 

assigned a schedule that did not meet the needs of his disabled son, and fired plaintiff for 

refusing the assignment. 

To avoid summary judgment, plaintiff was required to produce evidence that his 

discharge “occurred under circumstances raising a reasonable inference that the disability 

of his [son] was a substantial factor motivating the employer’s decision.” (Rope, supra, 

220 Cal.App.4th at p. 658; see ibid. [“ ‘if the disability plays no role in the employer’s 

decision . . . then there is no disability discrimination’ ”].)
10

The majority appears to accept the fundamental principles stated in Rope and 

Larimer, described in part 2, ante: namely, that there are three types of situation that 

evidence a motive for associational disability discrimination: expense, disability by 

association, and distraction. The majority points out that this case does not “fit neatly 

within the distraction paradigm set forth in Larimer, but a neat fit is not required.” 

(Maj. opn. ante, at p. 18.) I agree with that statement, and with Rope’s observation that 

Larimer provided an illustrative, rather than an exhaustive, list of the kinds of 

circumstances in which an employer might have a motive to discriminate against an 

employee who is associated with a disabled person. (Rope, supra, 220 Cal.App.4th at 

p. 657.) But while a “neat fit” is not required, the evidence here does not show any fit of 

any kind in any of Larimer’s categories (or any other circumstance showing a 

discriminatory motive). 

The critical element of any circumstance that might trigger a claim of associational 

disability discrimination is that it suggests the employer “has a motive to discriminate 

against a nondisabled employee who is merely associated with a disabled person.” 

(Larimer, supra, 370 F.3d at p. 702, italics added.) That is the point of the Larimer 

categories. An employer may be motivated to discriminate against an employee based on 

an associate’s disability, where the associate’s disability may cost the employer money 

(expense), or where the employer fears the employee will become ill from associating 

with a disabled person (disability by association), or where the employer perceives the 

employee is somewhat inattentive at work due to the distraction of caring for a disabled 

associate, though not to the point of needing a schedule accommodation (distraction). 

But plaintiff here presents no evidence of any of these circumstances, or any other 

circumstances suggesting a motive to fire him because of his son’s disability.

As I noted earlier, the majority’s discussion of what it perceives as triable issues of 

material fact as to discriminatory motive and pretext (maj. opn. ante, at pp. 15-17) hinges 

entirely on Junior’s failure to accommodate plaintiff’s request for a different shift so he 

could care for his disabled son. In effect, the majority is saying that evidence of Junior’s 

refusal to make the schedule change plaintiff requested is evidence that he did so because 
11

of the son’s disability. That is a (mistaken) tautology, not cause and effect, and it 

necessarily assumes that the employer had an obligation to accommodate plaintiff’s 

desired schedule. There is no such obligation under the ADA or FEHA, and no authority 

– until now – suggests otherwise.

Indeed, Larimer specifically held that under the ADA, there is no associational 

disability discrimination claim where the employer refuses to accommodate the 

nondisabled employee, because “the right to an accommodation, being limited to disabled 

employees, does not extend to a nondisabled associate of a disabled person.” (Larimer, 

supra, 370 F.3d at p. 700.) The majority rejects the Larimer principle in its footnote 5 

because it again asserts the ADA and FEHA “differ structurally.” (Maj. opn. ante, at 

p. 14.) This rejection of the Larimer principle is simply another demonstration that the 

majority’s decision rests on a point they claim not to be deciding: that FEHA obliges the 

employer to accommodate the disabled associate of a nondisabled employee. I am aware 

of no other authority or scholarly writing that takes issue with the Larimer principle; to 

the contrary, as explained below, federal cases before and after Larimer consistently hold 

there is no duty to accommodate a nondisabled employee by changing his schedule so he 

can care for a disabled associate.

These authorities illustrate the requirement for a showing of discriminatory motive 

in associational disability discrimination cases. One of those is Erdman v. Nationwide 

Ins. Co. (3d Cir. 2009) 582 F.3d 500 (Erdman). There, the Third Circuit affirmed 

summary adjudication for the employer on the plaintiff’s claim she was fired because of 

her daughter’s known disability (Down syndrome). The court reiterated that “the 

association provision does not obligate employers to accommodate the schedule of an 

employee with a disabled relative” (id. at p. 510), and the pertinent question is whether a 

reasonable jury could infer from the evidence that the plaintiff was terminated “because 

of her [daughter’s] disability.” (Ibid.) The answer was no. 

Erdman explained: “[T]here is a material distinction between firing an employee 

because of a relative’s disability and firing an employee because of the need to take time 

off to care for the relative. . . . [The plaintiff] must show that [the employer] was 
12

motivated by [the daughter’s] disability rather than by [the plaintiff’s] stated intention to 

miss work; in other words, that she would not have been fired if she had requested time 

off for a different reason.” (Erdman, supra, 582 F.3d at p. 510.) The court concluded the 

record was “devoid of evidence indicating that [the employer’s] decision to fire [the 

plaintiff] was motivated by [the daughter’s] disability. Indeed, [the employer] was aware 

of [the daughter’s] disability for many years before [the plaintiff] was fired. The most 

[the plaintiff] can hope to show is that she was fired for requesting time off to care for 

[the daughter], not because of unfounded stereotypes or assumptions on [the employer’s] 

part about care required by disabled persons.” (Erdman, supra, 582 F.3d at p. 511.)2

This case is virtually the same as Erdman. It is undisputed that defendant hired 

plaintiff, despite knowing of his son’s disability and plaintiff’s need for work schedule 

accommodations; his job did not have a set start and end time, and his hours varied 

throughout his employment; defendant accommodated plaintiff’s request for earlier 

schedules for some years, until a new supervisor (who scheduled plaintiff to shifts that 

regularly earned him more money than he had with previous supervisors) one day 

 

2 See also Magnus v. St. Mark United Methodist Church (7th Cir. 2012) 688 F.3d 

331, 339 (Magnus) (affirming summary judgment for the defendant employer, rejecting 

claim the timing of plaintiff’s termination (two weeks after she received a raise, and one 

day after she arrived late to work because of a medical situation with her disabled 

daughter) was sufficient to infer associational discrimination; “despite the fact that the 

[employer] may have placed [the plaintiff] in a difficult situation considering her 

commendable commitment to care for her disabled daughter [by requiring her to work 

weekends], she was not entitled to an accommodated schedule”); Den Hartog v. Wasatch 

Academy (10th Cir. 1997) 129 F.3d 1076, 1077, 1084 (affirming summary judgment for 

an employer who discharged the plaintiff teacher after his adult son with bipolar affective 

disorder attacked and threatened several members of the school community; the ADA 

“does not require an employer to make any ‘reasonable accommodation’ to the 

disabilities of relatives or associates of an employee who is not himself disabled”); 

Tyndall v. National Educ. Centers, Inc. (4th Cir. 1994) 31 F.3d 209, 214 (affirming 

summary judgment for the employer, who had discharged a disabled employee who was 

frequently absent from work, due both to her own disability and to the disability of a 

family member; the ADA “does not require an employer to restructure an employee’s 

work schedule to enable the employee to care for a relative with a disability”).
13

assigned plaintiff to a schedule virtually identical to the shift plaintiff accepted the day 

before without complaint; and plaintiff refused the assignment after being warned that if 

he did so, he would be fired. Nothing about this suggests Junior’s decision to fire 

plaintiff was motivated by the son’s disability. 

The majority discusses two cases that defendant cites in connection with the 

absence of evidence that plaintiff’s association with his son motivated his termination. 

These are Ennis v. National Ass’n of Bus. & Educ. Radio, Inc. (4th Cir. 1995) 53 F.3d 55 

(Ennis) and Magnus, supra, 688 F.3d 331. In both of these cases, the employers 

terminated the plaintiffs for poor performance, and the courts rejected the plaintiffs’ 

claims they were discharged because of their association with disabled family members, 

finding the evidence insufficient to infer associational disability discrimination. (Ennis, 

at p. 62 [“[m]ere unsupported speculation [that the employer discharged the plaintiff 

because of possible impact of her child’s HIV positive status on the employer’s insurance 

rates] is not enough to defeat a summary judgment motion”]; Magnus, at p. 338 [timing 

of the plaintiff’s termination one day after her late arrival because of a medical issue with 

her disabled daughter was insufficient to infer associational discrimination].) The 

majority points out that here, “by contrast [with Ennis], there was no issue with plaintiff’s 

performance, and thus no concomitant showing that he was legitimately terminated,” and 

“the many performance deficiencies in Magnus also justified the plaintiff’s 

termination . . . .” (Maj. opn. ante, at pp. 18, 19.)

I see no pertinence in the majority’s distinction. In this case, defendant terminated 

plaintiff for refusing to work an assigned shift, not for poor performance, and the issue 

(the same issue as in Ennis and Magnus) is whether plaintiff has produced evidence from 

which a jury could infer that the real motive for the termination was his son’s disability. 

As in Ennis and Magnus, plaintiff has not done so, and his job performance has nothing 

to do with it. 

The majority insists that the facts “give rise to the inference that Junior acted 

proactively to avoid the nuisance plaintiff’s association with his disabled son would cause 
14

Junior in the future.”3 (Maj. opn. ante, at p. 16.) Once again, this assertion depends on 

the principle the majority claims it is not deciding: that the employer is obliged to 

accommodate a nondisabled employee who is associated with a disabled person. In my 

view, as explained above, there is no authority for that conclusion, federal or state, and no 

reason for construing FEHA in a manner different from federal authorities construing the 

ADA. 

I am sympathetic to plaintiff’s point that his previous supervisors had 

accommodated his requests for earlier shifts, and that his last supervisor could have 

assigned him to earlier shifts on April 23, 2013. But I am left with no basis in the law on 

which to find a FEHA violation based on the assignment of a route to Oxnard with a 

noon start time (a schedule virtually identical to the shift plaintiff accepted the day before 

 

3 The majority also finds Kouromihelakis v. Hartford Fire Ins. Co. (D.Conn. 2014) 

48 F.Supp.3d 175 to be instructive. (Maj. opn. ante, at p. 17.) I do not, because the facts 

are so different. In Kouromihelakis, the district court denied the defendant employer’s 

motion to dismiss the plaintiff’s claim he was fired because of the known disability of his 

father. The plaintiff was a regional sales consultant. His regular work hours were 

9:00 a.m. to 6:00 p.m. with lunch from 1:00 to 2:00 p.m., but he was exempt, paid a 

salary, not an hourly wage. As such, the defendant’s tardiness policy did not apply to 

him. The plaintiff alleged he was required to assist in the care of his disabled father; his 

job performance was excellent; he was periodically unable to report for work by 

9:00 a.m.; the employer was aware of his father’s disability and the reason for the 

plaintiff’s tardiness; and the defendant had a “flex time” policy but denied the plaintiff’s 

requests to change his hours so he could care for his disabled father. One day, the 

plaintiff was approved to take four hours personal time off, but when he arrived at work 

at 1:26 p.m., his supervisor considered him late and terminated him for tardiness. 

(Kouromihelakis, at p. 178.) The court concluded these allegations were “sufficient to 

plead a plausible ‘distraction’ claim,” and supported “a reasonable inference that the 

defendant terminated the plaintiff’s employment based on a belief about future absences.” 

(Id. at pp. 180-181.) The majority likens Kouromihelakis to this case, saying the 

evidence here gives rise to the reasonable inference that Junior terminated plaintiff 

“based on a belief that plaintiff would want earlier shifts in the future.” (Maj. opn. ante, 

at p. 18.) But here, plaintiff was an hourly worker whose job required him to report on 

time for whatever shift and route he was assigned on any given day, there is no evidence 

here that defendant had a “flex time” policy, and there is no evidence suggesting plaintiff

was discharged because Junior feared in the future he would miss work to care for his 

son.
15

without complaint). Even in the case of a disabled employee, toward whom the employer 

does owe a duty to reasonably accommodate, it has been held that the employer’s past 

accommodations did not prove the reasonableness of the employee’s request to continue 

to provide those accommodations. (See, e.g., Terrell v. USAir (11th Cir. 1998) 132 F.3d 

621, 626, fn. 6 [employer who temporarily reduced employee’s working hours to 

accommodate carpal tunnel syndrome was not obliged to create part-time position; 

“An employer that ‘bends over backwards to accommodate a disabled worker . . . must 

not be punished for its generosity by being deemed to have conceded the reasonableness 

of so far-reaching an accommodation.’ ”].)

However desirable it might seem for the law to require an employer to 

accommodate the needs of the disabled associate of a nondisabled employee, the courts 

are not free to expand the law in this way without any basis in the statutory language or 

other precedent.

4. The Retaliation Claim Fails Because The Evidence Does Not Permit An 

Inference That Plaintiff Engaged In Protected Activity.

Finally, turning to the retaliation claim, I disagree with the majority’s conclusion 

that plaintiff demonstrated a triable issue of fact as to the first element of a retaliation 

claim: that he engaged in a protected activity. (Yanowitz v. L’Oreal USA, Inc. (2005) 

36 Cal.4th 1028, 1042 (Yanowitz).) Plaintiff contends he “oppos[ed] associational 

disability discrimination” when he complained about his supervisor “interfering with his 

schedule.” Plaintiff does not contend he requested an accommodation, which in any 

event would not have demonstrated an essential element of a retaliation claim. During 

plaintiff’s employment with defendant, a mere request, or even repeated requests, for an 

accommodation, without more, did not constitute protected activity under FEHA. (Rope, 

supra, 220 Cal.App.4th at pp. 652-653.)

The majority notes that Rope is no longer good law on that point. (Maj. opn. ante, 

at p. 23.) But the only court to have considered the question has held that, before 

Assembly Bill No. 987 became effective on January 1, 2016, a mere request, or even 

repeated requests, for an accommodation did not constitute protected activity. (Moore, 
16

supra, 248 Cal.App.4th at p. 247 [where the plaintiff alleges the defendant engaged in 

retaliation before January 1, 2016, the effective date of Assembly Bill No. 987, a request 

for accommodation, without more, is not sufficient to constitute protected activity; 

plaintiff must have engaged in opposition to practices forbidden under FEHA or filed a 

complaint, testified, or assisted in any proceeding under FEHA].)4

I disagree with the majority’s conclusion that plaintiff’s repeated complaints about 

the changes to his schedule represented “some degree of opposition” to defendant’s 

failure to give plaintiff the schedule he wanted, so as to constitute protected activity. 

While a formal accusation of discrimination is unnecessary, it is necessary that “ ‘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.’ [Citation.]” (Yanowitz, supra, 36 Cal.4th at p. 1047.) There is 

 

4 Though the Legislature clearly intended to change the law by enacting Assembly 

Bill No. 987 to declare a request for accommodation is protected activity, it is not at all 

clear that the Legislature intended the change to apply to a request by a nondisabled 

employee to accommodate a disabled relative or associate. With no California or federal 

authority establishing a duty to accommodate someone who is neither a job applicant nor 

an employee, I do not presume that is what the Legislature intended. In its letter briefs, 

defendant provided legislative history of Assembly Bill No. 987 indicating it was 

intended to protect employees requesting accommodations for their own disabilities. 

(See, e.g., Legis. Counsel’s Dig., Assem. Bill No. 987 (2015-2016 Reg. Sess.) 

Stats. 2015, ch. 122 [“This bill would, in addition, prohibit an employer or other covered 

entity from retaliating or otherwise discriminating against a person for requesting 

accommodation of his or her disability . . . .” (italics added)]; Sen. Rules Com., Off. of 

Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 987 (2015-2016 Reg. Sess.) 

as amended May 27, 2015, p. 1 [“This bill makes it an unlawful employment practice 

under [FEHA] to retaliate or otherwise discriminate against a person who requests an 

accommodation. . . for the person’s known physical or mental disability . . . .” (italics 

added)]; Sen. Com. on Judiciary, Analysis of Assem. Bill No. 987 (2015-2016 Reg. 

Sess.) as amended May 27, 2015 [“This bill would make it an unlawful employment 

practice under [FEHA] to retaliate or otherwise discriminate against a person who 

requests an accommodation . . . for the person’s known physical or mental 

disability . . . .” (italics added)].)
17

nothing at all in the evidence to suggest that plaintiff thought defendant’s scheduling was 

unlawful. And certainly there is no evidence to suggest that plaintiff actually conveyed 

to defendant any belief that defendant’s actions were unlawful. The majority summarizes 

the evidence in the summary judgment papers concerning plaintiff’s complaints to his 

employer on the last two days of his employment as follows:

“On April 22, 2013, Junior assigned plaintiff a shift that started at 11:55 a.m., the 

latest he had ever started a shift, and ended at 9:04 p.m. He had ‘no problem’ with the 

route that day because it still allowed him to be home in time for his son’s dialysis. But 

he told Junior: ‘Please, I need to have my job like always. I’ve always had help from 

everyone except you.’

“The following day, on April 23, 2013, Junior assigned plaintiff a shift beginning 

at 12:00 p.m. Unlike the previous day, this assignment was for a route from Los Angeles 

to Oxnard and back, including multiple pickups and deliveries. Plaintiff explained to 

Junior that it was too late in the day for him to drive that route because he could not get 

back in time to administer dialysis to his son by 8:00 p.m. Plaintiff requested another 

route or simply to take that day off. He also reminded Junior that Bermudez had already 

talked to Junior about plaintiff’s need for shifts enabling him to leave early for his son.

“When plaintiff complained to Junior, Junior laughed and said, ‘Winston 

[Bermudez] doesn’t work here anymore. Now it’s me.’ Junior told plaintiff that if he did 

not do the route, he was fired. Plaintiff said he was sorry, but he could not do it. Junior 

told him to return the next day to sign the termination paperwork.” (Maj. opn. ante, at 

p. 5.)

The majority finds these statements by plaintiff may be reasonably understood to 

constitute “opposition to a practice he believed was unlawful.” (Maj. opn. ante, at p. 23.) 

I think it is unreasonable to interpret plaintiff’s complaints as opposition to a practice he 

believed was unlawful. Plaintiff’s statements are only reasonably understood as a request 

for a different route, with no hint that he believed he had a lawful right to a different 

route or that it was discriminatory to refuse to give him a different route.
18

The majority likens this case to Yanowitz, where the plaintiff did not explicitly 

state to her superior that she believed his order to terminate a sales associate, because the 

associate was “ ‘not good looking enough,’ ” constituted unlawful sex discrimination. 

(Yanowitz, supra, 36 Cal.4th at p. 1044.) But in Yanowitz, the evidence permitted a 

finding that, in view of the nature of the order, the plaintiff’s “refusal to implement the 

order, coupled with her multiple requests for ‘adequate justification,’ sufficiently 

communicated to [her superior] that she believed that his order was discriminatory.” (Id. 

at p. 1048.) There is no comparable evidence here that plaintiff believed defendant’s 

scheduling was discriminatory or that he conveyed that belief to defendant. “Standing 

alone, an employee’s unarticulated belief that an employer is engaging in discrimination 

will not suffice to establish protected conduct for the purposes of establishing a prima 

facie case of retaliation, where there is no evidence the employer knew that the 

employee’s opposition was based upon a reasonable belief that the employer was 

engaging in discrimination.” (Id. at p. 1046.)

I would affirm the grant of summary judgment for defendant. I would reverse the 

trial court’s order awarding defendant its costs and remand for a ruling under the standard 

announced in Williams v. Chino Valley Independent Fire Dist. (2015) 61 Cal.4th 97, 99-

100 (“an unsuccessful FEHA plaintiff should not be ordered to pay the defendant’s fees 

or costs unless the plaintiff brought or continued litigating the action without an objective 

basis for believing it had potential merit”).

GRIMES, J.