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NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RALPH VILLALOBOS,

Plaintiff-Appellant,

v.

TWC ADMINISTRATION LLC,

Defendant-Appellee.

No. 16-55288

D.C. No. 

2:15-cv-02808-R-PLA

MEMORANDUM*

Appeal from the United States District Court

for the Central District of California

Manuel L. Real, District Judge, Presiding

Argued and Submitted December 6, 2017

Pasadena, California

Before: CANBY and REINHARDT, Circuit Judges, and BLOCK,** District 

Judge.

 

* This disposition is not appropriate for publication and is not precedent except as 

provided by Ninth Circuit Rule 36-3.

** The Honorable Frederic Block, United States District Judge for the Eastern District 

of New York, sitting by designation.

FILED

DEC 26 2017

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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Ralph Villalobos (“Villalobos”) appeals the district court’s grant of 

summary judgment in favor of TWC Administration LLC (“TWC”) on his state 

law claims for disability and age discrimination, and wrongful termination in 

violation of public policy under California’s Fair Employment and Housing Act 

(“FEHA”). Cal. Gov’t Code § 12940. Villalobos served as a Direct Sales 

Representative (“DSR”) for TWC and its predecessors for twenty-four years before 

he was terminated in February 2014. Because “discrimination claims are 

frequently difficult to prove without a full airing of the evidence and an 

opportunity to evaluate the credibility of the witnesses,” McGinest v. GTE Serv. 

Corp., 360 F.3d 1103, 1112 (9th Cir. 2004), “it should not take much for a plaintiff 

in a discrimination case to overcome a summary judgment motion,” France v. 

Johnson, 795 F.3d 1170, 1175 (9th Cir. 2015). California courts look to federal 

precedent governing analogous federal anti-discrimination laws when interpreting 

FEHA claims. Guz v. Bechtel Nat’l, Inc., 8 P.3d 1089, 1113 (Cal. 2000). The 

district court had diversity jurisdiction over this case pursuant to 28 U.S.C. § 1332,

and we have jurisdiction over this case pursuant to 28 U.S.C. § 1291. We reverse

on all five state law claims.

1. We reverse the district court’s grant of summary judgment on Villalobos’s 

disability discrimination claim. Section 12940(a) of FEHA prohibits employers 
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from firing an employee “because of” disability. Nadaf-Rahrov v. Neiman Marcus 

Grp., Inc., 166 Cal. App. 4th 952, 962 (2008). Under this section, Villalobos must 

show that (1) he was fired because of disability and (2) he “could perform the 

essential functions of the job with or without accommodation (in the parlance of 

[federal law], that he [] is a qualified individual with a disability).” Id.

Villalobos has presented direct evidence that he was fired because of his 

disabilities. He went on leave because of his anxiety, depression, and insomnia. 

TWC explained that it fired Villalobos because of “his repeated, prolonged leaves 

of absence which rendered him unable or unwilling to work.” Terminating an 

employee for conduct that results from a disability is equivalent to terminating an 

employee based on the disability itself because “conduct resulting from a disability 

is considered to be part of the disability, rather than a separate basis for 

termination.” Humphrey v. Mem’l Hosps. Ass’n, 239 F.3d 1128, 1139-40 (9th Cir. 

2001).

TWC argues that Villalobos could not have been terminated because of his 

disability because the field sales manager who decided to terminate Villalobos 

testified that he did not know the underlying reason for Villalobos’s leave of 

absence. However, Villalobos presented evidence that this manager was on notice: 

he was copied on emails from Human Resources (HR) regarding Villalobos’s 
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request for leave based on a medical condition. In addition, the manager testified 

that the decision to terminate Villalobos was “a collaborative effort” with the HR 

representative who reviewed his doctor’s medical certifications. Because “a

decision maker’s ignorance does not ‘categorically shield the employer from 

liability if other substantial contributors bore the requisite animus,’” Wysinger v. 

Auto. Club of S. Cal., 157 Cal. App. 4th 413, 421 (2007) (quoting Reeves v. 

Safeway Stores, Inc., 121 Cal. App. 4th 95, 110 (2004)), this argument fails.

Villalobos has also raised a triable issue of fact as to whether he was a 

“qualified individual.” An employee is “qualified” if he is able to perform the 

essential duties of the position with or without reasonable accommodation. NadafRahrov, 166 Cal. App. 4th at 963. Contrary to TWC’s argument, Villalobos is not 

precluded as a matter of law from being qualified simply because he was unable to 

work at the time of his termination. See Nunes v. Wal-Mart Stores, Inc., 164 F.3d 

1243, 1247 (9th Cir. 1999); Humphrey, 239 F.3d at 1135-36. This conclusion 

follows because one form of reasonable accommodation can be an extended leave 

of absence that will, in the future, enable an individual to perform his essential job 

duties. Nunes, 164 F.3d at 1247. Therefore, the proper inquiry for an otherwise 

qualified individual who is terminated while on leave is whether the leave was a 
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reasonable accommodation and did not impose an undue hardship on the employer. 

Id.

Villalobos has presented evidence that he was qualified apart from the need 

for leave. Neither his direct supervisor nor the field sales manager was able to 

point to a negative performance review in Villalobos’s twenty-four years at TWC

and its predecessor companies. In addition, there is some evidence that he was 

able to find employment as a door-to-door salesman for another company shortly 

after his termination.

A leave of absence can constitute a reasonable accommodation “where it 

appears likely that the employee will be able to return to an existing position at 

some time in the foreseeable future.” Jensen v. Wells Fargo Bank, 85 Cal. App. 

4th 245, 263 (2000). When evaluating reasonableness, California courts consider 

whether the accommodation was “a finite leave of absence” or an “indefinite” one. 

See Atkins v. City of L.A., 8 Cal. App. 5th 696, 721-22 (2017). Construing, as we 

must, the facts in the light most favorable to Villalobos, there is a triable issue of 

fact as to whether his requested leave of absence was finite because his doctor 

provided a return-to-work date of March 10, 2014. Villalobos also testified that he 

was ready and able to work by that date.
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TWC argues that Villalobos’s requested extension could not have been 

reasonable because he had already been granted multiple extensions that were

unsuccessful. However, a history of past accommodation does not, as a matter of 

law, preclude Villalobos’s disability claim. “Although an employer need not 

provide repeated leaves of absence for an employee . . . , the mere fact that a 

medical leave has been repeatedly extended does not necessarily establish that it 

would continue indefinitely.” Nadaf-Rahrov, 166 Cal. App. 4th at 988. Rather, 

“the fact that an accommodation has been attempted and was unsuccessful is a 

relevant consideration for the factfinder . . . . ” Kimbro v. Atl. Richfield Co., 889 

F.2d 869, 879 n.10 (9th Cir. 1989). Although Villalobos’s multiple requests for 

extensions “may in fact prove dispositive in determining whether failure to permit 

subsequent leave constituted failure to make a reasonable accommodation,” id., 

this is a question properly resolved by the trier of fact and is inappropriate for 

summary judgment.

Finally, there is a triable issue of material fact as to whether Villalobos’s 

requested extension posed an undue hardship to TWC. Under section 

12940(m)(1), employers must provide reasonable accommodation to an employee 

with disability unless the employer can demonstrate that doing so would impose an 

“undue hardship.” Atkins, 8 Cal. App. 5th at 733. Undue hardship means an 
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“action requiring significant difficulty or expense” considered in light of, among 

other factors, “the nature and cost of the accommodation needed,” “the overall 

financial resources” of the employer, and “the type of operations, including the 

composition, structure, and functions of the workforce . . . . ” Id. Also relevant is 

TWC’s “policy or practice of offering other employees the same or similar 

assistance or benefits requested by the plaintiff . . . . ” Id. at 722.

TWC has not carried its burden of demonstrating that there is no triable issue 

of fact regarding undue hardship. Although TWC argues that it “could no longer 

accommodate Villalobos’s cycle of extended, unpredictable leaves of absence,” 

Villalobos has presented evidence that TWC has allowed at least two other 

employees to take extended leaves of absence, one for seven months and another 

for at least eighteen months. TWC attempts to distinguish these leaves on the basis 

that they were continuous. It argues that unlike during those leaves, TWC “could 

neither plan for [Villalobos’s] return nor fill his position.” However, Villalobos’s 

direct supervisor testified that he also did not fill the position of the DSR who was 

on an indefinite leave for at least eighteen months. In addition, the field sales 

manager testified that it is relatively easy to transfer one of the 300-plus DSRs in 

the Southern California area between teams. Finally, Villalobos’s direct supervisor 
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and the field sales manager testified that they continued to meet their sales goals 

even with Villalobos out on leave.

2. We also reverse summary judgment on Villalobos’s separate claim that 

TWC failed to reasonably accommodate him. Under section 12940(m), an 

employer must reasonably accommodate an employee’s known disability unless 

doing so would produce an undue hardship. For this claim, Villalobos must show 

(1) he has a disability under FEHA, (2) he is “qualified to perform the essential 

functions of the position,” and (3) TWC “failed to reasonably accommodate [his] 

disability.” Swanson v. Morongo Unified Sch. Dist., 232 Cal. App. 4th 954, 969

(2014) (quoting Scotch v. Art Inst. of Cal.-Orange Cty., Inc., 173 Cal. App. 4th 

986, 1010 (2009)). In light of the overlap between this claim and Villalobos’s 

disability discrimination claim, we reverse summary judgment on this claim as 

well. In addition, the duty to reasonably accommodate is an “affirmative” one that 

is “continuing” and “not exhausted by one effort.” Id. (quoting Humphrey, 239 

F.3d at 1138). Therefore, a “single failure to reasonably accommodate an 

employee may give rise to liability, despite other efforts at accommodation.” Id. 

Accordingly, it is no answer that TWC granted previous extensions if failing to do 

so the last time was a failure to reasonably accommodate Villalobos.
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3. We also reverse the district court’s grant of summary judgment on 

Villalobos’s claim that TWC failed to engage in the interactive process. “Under 

FEHA, an employer must engage in a good faith interactive process with the 

disabled employee to explore the alternatives to accommodate the disability.” 

Nealy v. City of Santa Monica, 234 Cal. App. 4th 359, 379 (2015) (quoting 

Wysinger, 157 Cal. App. at 424); Cal. Gov’t Code § 12940(n). The burden is on 

the employer seeking summary judgment to demonstrate that there are no triable 

facts as to its participation in the interactive process. Jensen, 85 Cal. App. 4th at 

260.

“[T]he employer’s obligation to engage in the interactive process extends 

beyond the first attempt at accommodation and continues when the employee asks 

for a different accommodation or where the employer is aware that the initial 

accommodation is failing and further accommodation is needed.” Humphrey, 239 

F.3d at 1138. For this reason, we look to TWC’s actions in response to 

Villalobos’s ultimate request for an extension of leave, rather than its engagement 

in the interactive process throughout Villalobos’s periods of leave. The HR 

representative charged with reviewing Villalobos’s accommodation requests 

testified that she did not communicate with Villalobos between the receipt of his 

request for an extension and the date he was terminated. She also testified that no 
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one informed Villalobos that he would be terminated if he failed to return to work 

by the end of his most recent accommodation; instead, she explained that he was 

informed only that any additional requests would need to be evaluated. 

Accordingly, TWC is unable to sustain its burden.

4. We also reverse the district court’s grant of summary judgment on 

Villalobos’s age discrimination claim under section 12940(a). Because Villalobos 

relies on circumstantial evidence of discriminatory discharge, the burden-shifting 

analysis under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) applies. 

Guz, 8 P.3d at 1113 (explaining that “California has adopted the three-stage 

burden-shifting test . . . for trying claims of discrimination”). Villalobos bears the 

initial burden of establishing a prima facie case of employment discrimination. Id. 

Then, the burden shifts to TWC to articulate a legitimate, nondiscriminatory reason 

for terminating Villalobos. Id. at 1114. If TWC provides such a reason, Villalobos

must raise a triable issue that the reason is pretextual. Id.

To establish his prima facie case, Villalobos must show that he was: “(1) at 

least forty years old, (2) performing his job satisfactorily, (3) discharged, and (4) 

either replaced by substantially younger employees with equal or inferior 

qualifications or discharged under circumstances otherwise ‘giving rise to an 

inference of discrimination.’” Schechner v. KPIX-TV, 686 F.3d 1018, 1023 (9th 
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Cir. 2012) (quoting Diaz v. Eagle Produce Ltd. P’ship, 521 F.3d 1201, 1207 (9th 

Cir. 2008)). The prima facie burden “is not an onerous one.” Hersant v. Dep’t of 

Soc. Servs., 57 Cal. App. 4th 997, 1002-03 (1997). The parties do not dispute that 

Villalobos was 61 at the time of his discharge. They dispute only elements two 

and four. We conclude that Villalobos is able to establish his prima facie case. 

With respect to the second element, TWC argues that because Villalobos 

was terminated while on leave, his performance at the time of termination was 

nonexistent, let alone satisfactory. We disagree. On the basis of our conclusion 

that there is a triable issue as to whether Villalobos was a “qualified individual” for 

purposes of his disability claims, and similar to the reasoning in Nunes v. Wal-Mart 

Stores, Inc., 164 F.3d 1243, 1247 (9th Cir. 1999), we conclude that there is also a 

triable issue of fact as to whether he was performing his job satisfactorily. He need 

only “demonstrate some basic level of competence at his . . . job . . . . ” Sandell v. 

Taylor-Listug, Inc., 188 Cal. App. 4th 297, 322 (2010). Considering his history of 

performance rather than only his performance while on leave, no supervisor was 

able to point to a negative performance review in Villalobos’s twenty-four years 

with the company. 

In addition, “[e]vidence of the employer’s policies and practices, including 

its treatment of other employees, may support a . . . finding[] that the plaintiff’s job 
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performance did in fact satisfy the employer’s own norms,” which would “carr[y] 

the plaintiff’s burden” at this stage. Cheal v. El Camino Hosp., 223 Cal. App. 4th 

736, 743-44 (2014) (noting that even though plaintiff “made several mistakes” in 

preparing patients’ meals, “the hospital, under its own written policies, anticipated 

and expected such mistakes because . . . they were inevitable” and did not 

discipline other employees who made similar mistakes). Villalobos has presented 

evidence that an extended leave of absence was within TWC’s policies and norms. 

After Villalobos exhausted his FMLA leave, TWC informed him that it “[stood] 

ready and willing to work with you to determine whether you can be reasonably 

accommodated to be fully functional in your position.” TWC identified as one 

reasonable accommodation an “extended leave of absence to enable you to return 

to work.” In addition, the field sales manager testified that TWC anticipates some 

absences whether for sickness or other reasons. TWC did not coach or warn 

Villalobos that his lack of performance while on leave could subject him to 

termination despite TWC’s having a progressive discipline policy beginning with 

coaching, escalating to a verbal warning, then a written warning, and ending with 

termination. Finally, TWC’s treatment of other employees on leave suggests that 

Villalobos’s performance, even while on leave, was consistent with company 

norms and therefore satisfactory. The employees who were on leave for seven and 
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eighteen months did not receive any warnings about their performance or 

indications that their jobs were in danger. Viewed in the light most favorable to 

Villalobos, this evidence is sufficient to create a triable issue of material fact as to 

whether he was performing satisfactorily.

Finally, Villalobos has also demonstrated a triable issue of fact regarding 

whether age was a substantial motivating factor in his termination. He has 

presented evidence that TWC hired someone to fill his role who was substantially 

younger: his supervisor testified to hiring two new DSRs, aged 35 and 48, within 

ten months of Villalobos’s termination. France, 795 F.3d at 1174 (explaining that 

age difference of ten or more years gives rise to presumption of “substantially 

younger”). Villalobos also testified that the field sales manager, the primary 

decision maker regarding his termination, made a remark during a sales meeting 

that he had been “hired to get rid of the veteran sales reps.” Although TWC argues 

that this comment is ambiguous because it could be interpreted as referring to 

experienced DSRs rather than older DSRs, “the task of disambiguating ambiguous 

utterances is for trial, not summary judgment.” Reid v. Google, 235 P.3d 988, 

1008 (Cal. 2010) (quoting Shager v. Upjohn Co., 913. F.2d 398, 402 (7th Cir. 

1990)).
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TWC argues that even if Villalobos is able to establish a prima facie case, it 

has provided a legitimate, non-discriminatory reason for his termination: “his 

repeated, prolonged leaves of absence.” Because, as explained above, this reason 

is direct evidence of discrimination based on Villalobos’s disabilities, this 

proffered reason is neither legitimate nor non-discriminatory. It does not matter at 

this stage that this is so because of disability discrimination rather than age

discrimination. The California Supreme Court has explained that “‘legitimate’ 

reasons in this context are reasons that are facially unrelated to prohibited bias, 

and which, if true, would thus preclude a finding of discrimination.” Guz, 8 P.3d 

at 1115-16 (citations omitted). This court as well has held that an otherwise

unlawful proffered reason cannot satisfy the employer’s burden at step two even if 

it is not facially discriminatory toward the particular protected class on which the 

claim is based. See Santillan v. USA Waste of Cal., Inc., 853 F.3d 1035, 1044-46 

(9th Cir. 2017) (holding that proffered reason failed to rebut presumption of 

unlawful discrimination based on age because it violated California public policy 

by making reinstatement contingent on verification of immigration status). 

Because TWC has failed to rebut the presumption of discrimination, we conclude 

that the district court erred in granting summary judgment in favor of TWC.
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5. Finally, we reverse the district court’s grant of summary judgment on 

Villalobos’s wrongful termination claim. Because there are triable issues on his 

FEHA claims, “it necessarily follows that a triable issue exists with respect to [his] 

cause of action for wrongful termination in violation of public policy.” Faust v. 

Cal. Portland Cement Co., 150 Cal. App. 4th 864, 886 (2007).

REVERSED and REMANDED