NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICK ESPINDOLA,

Plaintiff

- Appellant,

v. WISMETTAC ASIAN FOODS, INC.,

Defendant

- Appellee. No. 21

- 55534
D.C. No. 2:20

- cv - 03702

- JWH

- E

MEMORANDUM *

Appeal from the United States District Court for the Central District of California John W. Holcomb, District Judge, Presiding Argued and Submitted May 10, 2022 Pasadena, California Before: WATFORD and FRIEDLAND, Circuit Judges, and ROBRENO, * * District Judge. Dissent by Judge ROBRENO. Rick Espindola appeals from the district court’s order granting summary judgment to his former employer, Wismettac Asian Foods , Inc. , in his action alleging violations of California law stemming from his termination after he fail ed

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The Honorable Eduardo C. Robreno, United States District Judge for the Eastern District of Pennsylvania, sitting by designation. 

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JUN 24 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALSPage 2 of 8

a drug test

. We reverse the district court’s grant of summary judgment as to all claims rel ying on California’s Fair Employment and Housing Act (FEHA), Cal.
Gov ’ t Code § 12940 , but affirm the grant of summary judgment on Espindola’s intrusion into private affairs claim.
1. Wismettac was not entitled to summary judgment on Espindola’s disability discrimination claim. As an initial matter, California courts h ave repeatedly recognized that a medical condition causing chronic back pain can qualify as a disability under FEHA

. See, e.g. , Colmenares v. Braemar Country Club, Inc. , 63 P.3d 220, 221

– 22 ( Cal. 2003); Spitzer v. The Good Guys, Inc. , 96 Cal. Rptr. 2d 236, 237

– 38 ( Ct. App. 2000). Additionally, FEHA defines disability broadly and does not require that the condition suffered by the plaintiff “result in utter inability or even substantial limitation on the individual ’ s ability to perform major life activities.” E .E.O.C. v. United Parcel Serv ice , Inc. , 424 F.3d 1060, 1071 (9th Cir. 2005). Any condition that limits a major life activity, including working, renders a plaintiff disabled under the statute. Cal. Gov ’ t Code § 12926.1(c). Espi ndola provided evidence that he has a condition resulting in chronic back pain that makes i t difficult to sit at his desk for a full day , and that is sufficient to create a genuine dispute of fact about whether he is disabled

. Wismettac also argues that Espindola did not do enough to put the company on notice that he was disabled or that his work was affected

. We disagree.Page 3 of 8

Espindola ’s evidence indicates that he (1) provided the company with a state

issued medical marijuana card ; (2) informed the company that he was being treated for chronic back pain based on a review of his medical records, MRIs, and doctor’s
notes ; and (3) asked to take physician

- prescribed pain pills during the workday to treat his pain. He also stated that the pain was m aking it difficult to sit at his desk a full day. This is not a case , like Arteaga v. Brink ’ s, Inc. , 77 Cal. Rptr. 3d 654 , 670

– 71 ( Ct. App. 2008) , in which an employer was presented with an employee’s purely subjective reports of pain that were contradict ed by medical expertise

. Once Espindola established that he was disabled and that the company was aware of his disability when it terminated him , the burden shift ed to Wismettac to demonstrate that he was terminated for a legitimate, nondiscriminatory reason. See Guz v. Bechtel Nat ’l

, Inc. , 8 P.3d 1089, 111 3

– 1 4 ( Cal. 2000)

. If the company successfully makes such a showing, Espindola is then afforded the opportunity to attack the proffered reason as pretextual. Id. Wismettac asserted only one reason for its termination of Espindola: his fail ure to pass a company - required drug test administered approximately one week after he started employment. We need not decide whether this reason satisf ies Wismettac’s initial burden

. Even a ssuming that it does, Espindola offered evidence sufficient for a jury to conclude that the company’s asserted reason for discharging him was pretextual. Espindola asserts that Wismettac’s claimed policy of not hiring anyonePage 4 of 8

unless that person pass es a pre - employment drug test is pretextual because the policy is not written down anywhere and because evidence indicates that any testing requirement is actually a flexible one . He c orrectly notes that the only relevant written policy is in the company’s employee handbook but that the handbook states only that all employees must take a pre

- employment drug test

— not that passing the test is a requirement for employment

. Indeed, the han dbook suggests that failing a post

- employment drug test can lead to consequences up to and including termination

— thereby suggesting that the company does not strictly enforce a zero

- tolerance drug policy. In addition , Wismett a c’s failure to include the te st ing requirement in Espindola ’ s offer letter, Human Resource’s failure to raise Espindola’s incomplete drug test on his first day, Espindola ’s ability to start work before test ing , and the temporary suspension of Espindola’s drug test all suggest that any testing policy might not be strict ly enforced

— contrary to Wismett a c’s representations. That notion is supported by evidence that Espindola ’s supervisor said that “there would be nothing to worry about regarding any drug test” and that “everything was going to be okay” when Espindola voiced his concerns about passing a drug test. 1

1 The dissent contends that Espindola never became an employee because he had not yet passed what the dissent characterizes as a “mandatory” pre

- employment drug test. In our view , a reasonable jury could conclude that the test was not in fact a mandatory p re - condition of Espindola’s employment.Page 5 of 8

Moreover, Espindola points out that the typical purpose of a pre

employment drug test is to allow employers to determine , before investing in a

new hire, whether a prospective new employee has engaged in past drug use and thus may be likely to continue using drugs once employed. See Loder v. City of Glendale , 927 P.2d 1200, 1222

– 23 (Cal. 1997). But here, Espindola had already disclosed his past mari

juana use to Wismettac and admitted that he failed an at

home test , so the workplace test would not reveal any new information to the
company about his pre

- employment marijuana use

. Espindola also notes that Wismettac permitted him to continue working and representing the company even after he had admitted to recent marijuana use, and that Espindola’s supervisor did not believe Espindola was still using marijuana while he was working at Wismettac

. Espindola argues that the timing of the test further bols ters an inference of pretext. He alleges that , during his first week of employment , Wismettac provided

assurances that the company was suspending its drug

- testing requirement for him

. According to Espindola’s version of events, which a jury could accept as credible,
t he company changed its tune and insisted that Espindola take the workplace drug
test only after he had disclosed that his back pain was worsening and asked permission to take pain pills while at work. Wismettac responds that it is und isputed that Espindola’s supervisor recently received confirmation that allPage 6 of 8

employees had to take the pre - employment drug test , and the timing of that confirmation dictated the timing of Espindola’s termination . But evidence indicate s that the supervisor received the confirmatio n and y et still did not enforce the drug test requirement until after Espindola’s disclosures

— despite opportunities to do so earlier

. Given the lack of clarity regarding Wismettac’s pre

- employment drug testing policy, the temporal proximity of the drug test to Espindola’s disclosure of his worsening back pain , and the test’s apparent redundancy , a reasonable jury could find that Wismettac used the positive test a s a pretext to terminate Espindola because of his disability. See, e.g. , Moore v. Regents of Univ

. of Cal

. , 206 Cal. Rptr. 3d 841, 860 ( Ct. App. 2016) ( inferring potential pretext from “the timing of the company’s termination decision ” and “ the terminated employee’s job performance before termination” (quoting Flait v. N. Am. Watch Corp. , 4 Cal. Rptr. 2d 522, 530 (Ct. App. 1992) ). We reverse the district court’s grant of summary judgment to Wismettac on Espindola’s disability discrimination claim. The district court also granted summary judgment to Wismettac on Espindola’s claims for failure to prevent discrimination, retaliation, and wrongful termination in violation of public policy based on its conclusion that his underlying disability discrimina tion claim failed. Given our disagreement with that conclusion above , we also reverse the grant ofPage 7 of 8

summary judgment as to these related claims.
2. In light of the disputed issues discussed above , Wismettac was also not entitled to summary judgment on Espindola’s claims for failure to accommodate and failure to engage in an interactive process. Although these are distinct claims under California law, they share common elements and often implicate each other. Id. at 862

– 63 . Here, the claims can be analyzed together. The California Supreme Court has suggested that FEHA may require an employer to accommodate a disabled employee ’ s doctor

- approved medical use of legal substances that could potentially impair job perfor mance. See Ross v. RagingWire Telecomm c’ns , Inc. , 174 P.3d 200, 204 ( Cal. 2008). T he same is true under federal law , which California courts look to when interpreting and applying
FEHA. Guz , 8 P.3d at 1113; see, e.g. , U.S. Equal Emp

. Opportunity Comm ’ n , EEOC

- NTVA

- 2020

- 2, Use O f Codeine, Oxycodone, A nd Other Opioids: Information For Employees (2020)

. Espindola’s request to take his prescribed pain medication during the workday could be understood as a request for an accommodation under FEHA that triggered Wismettac’s obligation to engage in an interactive process to determine an effective accommodation. See Moore , 206 Cal. Rptr. 3d at 862

– 63 . Wismettac was not necessarily obligated to allow Espindola to take his medication at work, but the company was obligated to do more than flatly deny his request and then terminate him.Page 8 of 8

3. The district court properly granted summary judgment to Wismettac on Espindola’s intrusion int o private affairs claim. California employers are free to conduct suspicionless drug testing of new hires even if the test is conducted shortly after the employee begins working. See Loder , 927 P.2d at 12 25

– 26 ; Pilkington Barnes Hind v

. Superior Ct. , 77 Cal. Rptr. 2d 596, 600 (Ct. App. 1998) . Espindola admits that he was made aware of the testing requirement before beginning employment, and the test was conducted only one week after he started work. He also acknowledged that he consented to taking the t est and was aware that it was intended to screen him for illegal drug use, thereby eliminating any claim that he maintained a reasonable expectation of privacy. See Leonel v. Am

. Airlines, Inc. , 400 F.3d 702, 712

– 13 (9th Cir. 2005)

. U nder these circumsta nces, he cannot maintain his claim for intrusion into private affairs

. AFFIRMED in part , REVERSED in part , and REMANDED. Espindola shall recover his costs on appeal.1

Espindola v. Wismettac Asian Foods, Inc. , No. 2 1

- 55534

ROBRENO , District Judge, dissenting: This case involves a suspicionless pre - employment drug test and an employer’s ability to reject a n applicant who fails that test. The twist here is that , at Espindola’s request, Wismettac allowed him to begin work ing before he completed ( and tested positive on ) the mandatory pre

- employment drug test. I do not disagree with the majority’s well

- thought

- out analysis of the law regarding employment discrimi nation claims. However, in this diversity case under California law, there is a threshold question that the majority overlooks : was Espindola an employee for the purposes of his claims ? I suggest that he was not and, as a result, he has no claim for employ ment discrimination based on the suspicionless
pre - employment drug test nor a right to accommodations or to engage in an interactive process with Wismettac. First, the California Supreme Court h eld in Loder v. City of Glendale that requiring otherwise le gal suspicionless pre

- employment drug testing does not violate, inter alia, the ADA , the FEHA , or the United States Constitution . 14 Cal. 4th 846, 865 , 882 (1997). Second, under California law, a prospective employee cannot transform a suspicionless pre - employment drug test into a post

- employment drug test by 

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JUN 24 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

delaying the test until after they report to work

. In Pilkington Barnes Hind v. Superior C

ourt , the California Court of Appeals 1 explained succinctly that: a j ob applicant, who requests and receives a delay in submitting to the preemployment drug test permitted by Loder until after the start of employment, may not evade the employer ’ s testing requirement postemployment on the ground the applicant thereby became an “employee” and is, consequently, immune from such testing. In such circumstances, and for purposes of suspicionless drug testing, the job applicant who caused the drug testing delay must submit to such testing after the employment date. If the “employee ” fails the test given in the brief period between employment and administration of the test, that employment, conditioned on passing the test which the “employee” delayed, may be terminated. 66 Cal. App. 4th 28, 34 (1998)

. I suggest Hind is directly on p oint and the clear language quoted above i s not distinguishable from th is case on the basis that Gormley , Espindola’s future supervisor, learned Espindola had smoked marijuana when he reported to work in California

. 2 Likewise, while Espindola was tested seven

1 While the California Supreme Court has not ruled on the issue, I predict that it would follow the well

- reasoned California C ourt of A ppeal decision in Hind

. See Fast Trak Inv. Co., LLC v. Sax , 962 F.3d 455, 465 (9th Ci r. 2020 ) (providing that a federal court may predict how the highest state court would rule based on, inter alia, state appellate court decisions).

2 In Hind , the court recognized that part of the reason for suspicionless pre

employment drug tests is tha t the employer does not have the opportunity to observe an applicant over time for possible drug use. 66 Cal. App.4 th at 31

- 32. I recognize that, here, Gormley did not need to observe Espindola because he knew Espindola had smoked marijuana. Regardless, this distinction does not take Espindola out of the reach of the Hind mandate that an employee cannot transform a legal pre - emplo yment drug test into a post

- employment drug test by implementing delays.3

days (and fired ten days) after his employment began and actually performed work for Wismettac , and the petitioner in Hind was tested four days after beginning employment and had not yet performed any substantial work , id. at 32 , I again point
out that the language in Hind is unequivocable regarding the effects of an applicant delaying a suspicionless pre

- employment drug test. Moreover, s even days is still a

“ brief period between employment and administration of the test .” Id. at 3 4

. Espindola delayed taking the drug test until after he reported for work in California. Thus, u nder the clear language of Hind , Espindola is still an applicant in relation to the drug testing requirements

. Pursuant to Hind and Loder , Espindola

cou ld “ not evade” the results of the drug test by virtue of now being an employee, and he could “ be terminated” by Wismettac for failing the test as if he were an applicant rather than an employee

. Id

. As a result, I suggest the majority erred in reaching t he merits of Espindola’s claims regarding employment discrimination, lack of accommodation, and lack of an interactive process, and in reversing the district court

. Thus, I respectfully dissent.