Filed 9/12/14 Galvan v. Costco Wholesale Corp. CA2/4

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

GERARDO GALVAN,

 Plaintiff and Appellant,

v.

COSTCO WHOLESALE 

CORPORATION et al., 

 Defendants and Respondents.

 B250368

 (Los Angeles County

 Super. Ct. No. BC484314)

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

Elizabeth Allen White, Judge. Affirmed.

Avila & Shaddow, Tali Shaddow and Mark Steven Avila; Law Offices of 

Ellen Lake and Ellen Lake for Plaintiff and Appellant.

Seyfarth Shaw, Laura W. Shelby and Rocio Herrera for Defendants and 

Respondents.
2

In the underlying action, the trial court granted summary judgment against 

appellant Gerardo Galvan in his action against his former employer, respondent 

Costco Wholesale Corporation (Costco). We affirm.

RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

There are no material disputes about the following facts: In 1999, Costco 

hired Galvan as a part-time employee. In 2008, he held a senior managerial 

position at a Costco store in Canoga Park. In August 2010, after receiving 

“counseling notice[s]” for tardiness, he was demoted to a junior managerial 

position and transferred to a warehouse in Simi Valley. Soon afterward, Galvan 

requested leave under the Family Medical Leave Act (29 U.S.C.A. § 2601 et seq.) 

(FMLA), which was granted. In March 2011, he returned to work at the Simi 

Valley warehouse. In May 2011, after receiving counseling notices for tardiness 

and failure to perform his duties, he was terminated. 

In May 2012, Galvan initiated the underlying action. His complaint asserted

claims against Costco under the California Fair Employment and Housing Act 

([FEHA]; Gov. Code, § 12900 et seq.) for discrimination based on disability, 

failure to accommodate a disability, failure to engage in an interactive process 

regarding a disability, failure to prevent discrimination, and retaliation; in addition, 

it asserted claims for wrongful termination in violation of public policy, 

defamation, and intentional infliction of emotional distress, and sought punitive 

damages. The complaint alleged, inter alia, that in mid-2010, Galvan began 

suffering from anxiety and panic, that he received medical treatment and 

medication for that disability during and after his leave, and that Costco engaged in 

misconduct regarding his disability. 

In March 2013, Costco filed a motion for summary judgment or adjudication 

on Galvan’s complaint. In a 15-page order, the trial court determined that 
3

summary adjudication was proper on all of his claims and his request for punitive 

damages, and granted the motion for summary judgment. On June 28, 2013, the 

court entered judgment in Costco’s favor and against Galvan. This appeal 

followed. 

DISCUSSION

Galvan challenges the grant of summary adjudication with respect to several 

of his claims and his request for punitive damages. For the reasons discussed 

below, we reject his contentions.

A. Standard of Review

“A summary adjudication motion is subject to the same rules and procedures 

as a summary judgment motion. Both are reviewed de novo. [Citations.]” 

(Lunardi v. Great-West Life Assurance Co. (1995) 37 Cal.App.4th 807, 819.) “A 

defendant is entitled to summary judgment if the record establishes as a matter of 

law that none of the plaintiff’s asserted causes of action can prevail. [Citation.]” 

(Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107.) Generally, “the party 

moving for summary judgment bears an initial burden of production to make a 

prima facie showing of the nonexistence of any triable issue of material fact; if he 

carries his burden of production, he causes a shift, and the opposing party is then 

subjected to a burden of production of his own to make a prima facie showing of 

the existence of a triable issue of material fact.” (Aguilar v. Atlantic Richfield Co. 

(2001) 25 Cal.4th 826, 850.) In moving for summary judgment, “all that the 

defendant need do is to show that the plaintiff cannot establish at least one element 

of the cause of action -- for example, that the plaintiff cannot prove element X.” 

(Id. at p. 853.)
4

Although we independently assess the grant of summary judgment, our 

inquiry is subject to several constraints. Under the summary judgment statute, we 

examine the evidence submitted in connection with the summary judgment motion,

with the exception of evidence to which objections have been appropriately

sustained. (Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 711; 

Code Civ. Proc., § 437c, subd. (c).) Furthermore, our review is governed by a 

fundamental principle of appellate procedure, namely, that “‘[a] judgment or order 

of the lower court is presumed correct,’” and thus, “‘error must be affirmatively 

shown.’” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564, italics omitted, 

quoting Cal. Procedure (1954) Appeal, § 79, pp. 2238-2239.) Under this principle, 

Galvan bears the burden of establishing error on appeal, even though Costco had 

the burden of proving its right to summary judgment before the trial court. (Frank 

and Freedus v. Allstate Ins. Co. (1996) 45 Cal.App.4th 461, 474.) For this reason, 

our review is limited to contentions adequately raised in Galvan’s briefs. 

(Christoff v. Union Pacific Railroad Co. (2005) 134 Cal.App.4th 118, 125-126.) 

The two constraints narrow the scope of our inquiry. Here, the trial court 

denied Galvan’s request that it take judicial notice of several publications 

regarding mental illness and the Americans With Disabilities Act of 1990 (ADA) 

(42 U.S.C. § 12101 et seq.). Because Galvan does not challenge that ruling on 

appeal, he has forfeited any contention of error regarding it. 

Galvan has also forfeited any contention that summary judgment was 

improper with respect to his claims, to the extent he fails to challenge the ruling 

regarding those claims. As Galvan does not discuss his FEHA claim for retaliation 

or his claims for defamation and infliction of emotional distress, we exclude them 

from our review. (Wall Street Network, Ltd. v. New York Times Co. (2008) 164 

Cal.App.4th 1171, 1177; Yu v. Signet Bank/Virginia (1999) 69 Cal.App.4th 1377, 

1398; Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6.) 
5

B. FEHA

Galvan’s principal claims arise under FEHA. Generally, FEHA bars

employers from engaging in discrimination that targets an employee on the basis of 

a disability or medical condition. Under Government Code section 12940, 

subdivision (a)(1), it is an unlawful employment practice for an employer to 

discriminate against a person “because of” a physical or mental disability or a 

medical condition.

1

 Nonetheless, FEHA does not prohibit an employee’s discharge

when, “because of” his or her disability or medical condition, the employee “is 

unable to perform his or her essential duties even with reasonable 

accommodations, or cannot perform those duties in a manner that would not 

endanger his or her health or safety or the health or safety of others even with 

reasonable accommodations.” (§ 12940, subds. (a)(1), (a)(2).) 

FEHA also prohibits employer misconduct related to the provision of 

reasonable accommodations. Under section 12940, subdivision (m), it is an 

unlawful employment practice for an employer to “fail to make reasonable 

accommodation for the known physical or mental disability of an . . . employee.” 

However, the employer is not required to make an accommodation “that is 

demonstrated by the employer . . . to produce undue hardship . . . to its operation.” 

(§ 12940, subd. (m).) 

Subdivision (n) of section 12940 imposes an additional and independent 

duty on employers to engage in an “interactive process” regarding reasonable 

accommodations. (Scotch v. Art Institute of California -- Orange County, Inc.

(2009) 173 Cal.App.4th 986, 1003 (Scotch); Wilson v. County of Orange (2009) 

1

All further statutory citations are to the Government Code, unless otherwise 

indicated.
6

169 Cal.App.4th 1185, 1193 (Wilson); Wysinger v. Automobile Club of Southern 

California (2007) 157 Cal.App.4th 413, 424 (Wysinger).) That provision 

establishes that it is an unlawful practice for an employer “to fail to engage in a 

timely, good faith, interactive process with the employee . . . to determine effective 

reasonable accommodations, if any, in response to a request for reasonable 

accommodation by an employee . . . with a known physical or mental disability or 

known medical condition.”

Also pertinent here is subdivision (k) of section 12940, which obliges 

employers to prevent discrimination against employees with a disability or medical 

condition. Under that provision, it is an unlawful practice for an employer “to fail 

to take all reasonable steps necessary to prevent discrimination and harassment 

from occurring.”

2

C. Underlying Proceedings

1. Complaint 

In assessing the grant of summary judgment, we look first at Galvan’s 

allegations in his complaint, which frame the issues pertinent to a motion for 

summary judgment. (Bostrom v. County of San Bernardino (1995) 35 Cal.App.4th 

1654, 1662.) With respect to the FEHA claims, the complaint alleges that in mid2010, Galvan began to suffer from anxiety and panic episodes. Although Galvan’s 

supervisors were aware of Galvan’s “compromised mental state,” they took no 

2

Although the disability-related provisions of FEHA differ in some respects from 

those found in the ADA, when appropriate, California courts interpreting FEHA seek 

guidance from federal decisions construing the ADA. (Nadaf-Rahrov v. Neiman Marcus 

Group, Inc. (2008) 166 Cal.App.4th 952, 971-981 (Nadaf-Rahrov); Hastings v. 

Department of Corrections (2003) 110 Cal.App.4th 963, 973, fn. 12.)
7

action to make any reasonable accommodation and instead demoted and 

transferred him, which exacerbated his condition. After being diagnosed with a 

severe panic and anxiety disorder, he took a leave of absence from September 2010 

to March 2011. During that leave, his medical condition was “communicated on a 

regular basis” to Costco. After he returned from leave, Costco terminated him 

because of his disability, without offering additional leave or any other reasonable 

accommodation, and without engaging in an interactive process, even though 

Costco knew that he was under a doctor’s care and that his medication required 

adjustment. 

At the outset, we observe that our review of the complaint’s allegations is 

limited by the scope of Galvan’s contentions in his opening brief. Although the 

complaint alleges that Costco offered no reasonable accommodations before his 

demotion, his opening brief on appeal maintains only that there are triable issues 

whether Costco contravened FEHA after he returned from his leave. We therefore 

limit our inquiry to the FEHA claims related to his discharge following the leave. 

2. Costco’s Showing3

In seeking summary judgment, Costco contended that Galvan’s FEHA 

claims failed for several reasons, namely, that it was unaware Galvan had a 

disability, that he requested no reasonable accommodations, and that it discharged 

3

Some of the evidence discussed below was submitted in conjunction with Costco’s 

reply to Galvan’s opposition, and is cited in Costco’s respondent’s brief on appeal. 

Before the trial court and on appeal, Galvan has not objected to Costco’s reliance on that 

evidence; indeed, Galvan’s reply brief also cites some of it. Accordingly, we incorporate 

it into our summary of Costco’s showing. (See Plenger v. Alza Corp. (1992) 11 

Cal.App.4th 349, 362, fn. 8 [trial court may properly consider new evidence submitted 

with reply brief, “so long as the party opposing the motion for summary judgment has 

notice and an opportunity to respond to the new material”].)
8

him solely because of his poor performance. Costco submitted evidence 

supporting the following version of the underlying facts: In 2008, Costco 

promoted Galvan to receiving manager, a senior managerial position that obliged 

him to open the Canoga Park warehouse at 4:00 a.m. At Galvan’s request, Costco 

moved him to other managerial positions. In late 2009, Galvan asked to be moved 

back to the position of receiving manager, stating that “it would help with his 

marriage.” Costco did so. 

Although Galvan lived less than a mile from the Canoga Park warehouse, he 

was repeatedly late for work, and received two counseling notices for tardiness in 

June and August 2010. In issuing the second notice, Costco told him he would be 

demoted or discharged if he received another notice within six months. Galvan 

replied that he had “family issues,” but would improve his performance. Eight 

days later, he was three hours late for work. On August 31, 2010, Costco demoted 

Galvan to night merchandising manager, a junior managerial position, and 

transferred him to the Simi Valley warehouse. Costco also warned Galvan that he 

would be subject to suspension pending termination if he received a notice for 

tardiness prior to February 20, 2011, or a notice for any other reason prior to 

December 22, 2010. 

Immediately after the demotion, Galvan applied for personal medical leave 

under the FMLA, which Costco granted. Later, Galvan requested an extension of 

his leave to March 2011. In support of that request, Galvan submitted a notice 

from his physician, Dr. Alan S. Ruttenberg, stating that the extension was needed 

“[d]ue to illness.” In early February 2011, Galvan notified Costco that he intended 

to return to work in March 2011.

On March 2, 2011, Galvan submitted a “work restrictions” form executed 

by Ruttenberg, who stated that Galvan required no restrictions. On March 7, 2011, 

Galvan returned to work at the Simi Valley warehouse as a night merchandising 
9

manager. He generally began work at either 12:30 or 1:30 in the afternoon, and 

worked until the warehouse closed. His duties included communicating with other 

managers at the start of his shift, and securing the warehouse at closing. 

Costco presented evidence that after returning, Galvan was repeatedly late 

for work and failed to perform his duties, but that prior to his termination in May 

2011, he requested no accommodation related to an ongoing disability or medical 

condition. Costco’s evidence included excerpts from Galvan’s deposition

testimony, which showed that Galvan discussed the side effects of medication he 

was taking with Kevin Mirrett, an assistant warehouse manager. Costco 

nonetheless maintained that prior to its decision to terminate Galvan, he neither 

requested an accommodation nor asked Ruttenberg to help him secure an 

accommodation. 

According to Costco, Galvan was late for a managers’ meeting on his first 

day of work after his leave. Following that meeting, Mirrett told Galvan that 

punctuality was very important. Nonetheless, from March 14 to May 8, 2011, 

Galvan was late for 28 of 38 shifts. In addition, Galvan once left the warehouse 

receiving door open when he left at night, and on at least one or two occasions, 

fellow workers were unable to call him at closing time because his radio was 

turned off. That conduct violated Costco’s closing procedures. Galvan’s coworkers complained to Mirrett and Steve Kakuk, the warehouse manager, that 

Galvan failed to respond to radio calls, and that his night crew did not leave the 

warehouse ready for business the next day. 

In March and April 2011, Galvan received three counseling notices 

regarding his performance. The first notice, dated March 23, stated that Galvan 

had been late for five of the 11 shifts he had then worked. When Galvan met with 

Kakuk and Mirrett to discuss the notice, Kakuk told Galvan that attendance 

problems would not be tolerated. Kakuk further said that he and the other 
10

managers would “do everything within [their] power to help [Galvan], but he ha[d] 

to reach out to [them] and let [them] know what he need[ed].” On the portion of 

the notice for employee responses, Galvan apologized for his conduct, promised to 

“be more proactive and ask for help when needed,” and resolved to be punctual. In 

addition, Galvan stated: “If anything does come up[,] I will call and let a 

[manager] know.” 

Galvan testified in his deposition that after the March 23 meeting, he told 

Mirrett that he was having “a hard time trying to manage [himself] with the 

medication that [he] was taking.” Galvan stated: “I was telling him that I 

. . . really tried to be there on time but . . . there was times that I couldn’t get out of 

the house . . . .” He further stated: “[T]he medication was making me feel[] 

drowsiness, sleepy, tired, anxiety. I just felt like everything was going [in] slow 

motion . . . .” Nonetheless, Galvan acknowledged that he did not tell Mirrett that 

he needed a change in his schedule. Galvan also stated that he reported to

Ruttenberg that he was “sleeping a lot,” but the doctor neither changed Galvan’s

restrictions nor provided him with documentation to support an accommodation. 

On April 4, 2011, Galvan received a second notice, stating that he had failed 

to complete night closing tasks on time. According to the notice, Galvan’s 

performance had increased “overtime and payroll” and created morale problems. 

The notice further informed Galvan that for two weeks other managers would 

assist him in closing the warehouse, and that he would potentially be subject to 

termination if he failed to improve his performance. 

After receiving the notice, Galvan met with Kakuk and Mirrett, who asked 

him to suggest a “plan for improvement.” On the portion of the notice for 

employee responses, Galvan promised in writing to be more “visible” and “more 

vocal” to his co-workers, and to seek assistance “when needed to help finish [his] 

duties.” Although Galvan testified that at, or before, the meeting, he told Mirrett
11

that he was having a hard time “because of [his] medication[],” he acknowledged 

that he did not request any type of help from Costco during or after the meeting. 

The third notice, dated April 19, 2011, stated that Galvan had repeatedly 

arrived late for work, thereby compelling the warehouse’s morning employees “to 

stay over their scheduled shifts to wait for him in order to communicate the plan 

for the evening [employees].” The notice further warned Galvan that any 

additional issue would result in the termination of his employment. 

After receiving the notice, Galvan met that same day with Mirrett and Dena 

Rodgers, an assistant warehouse manager. At the meeting, Galvan provided the

following written response: “‘I will make a better effort on making it [in] on 

time . . . . I do need help getting FMLA paperwork and submitting it in [order] to 

help me out with my father[’s] illness . . . . This would help out completely.’”

(Italics added.) Galvan was given paperwork to request FMLA leave, but he did 

not submit it until more than a month later, on May 23, 2011, after Costco had 

decided to terminate his employment.

Although Galvan testified that at the time of the third notice, he continued to 

have issues with his medication, he could not recall whether he told Mirrett or 

Rodgers that he needed the FMLA leave to deal with those issues; in addition, he 

acknowledged that he never told Kakuk that he needed an accommodation 

regarding his medication. Galvan further stated that he did not then ask Ruttenberg 

for documentation to support any accommodation related to the medication, and 

that Ruttenberg never suggested that he should take additional leave. 

 Following the third notice, Galvan arrived late for seven of the 12 shifts he 

worked prior to May 7, 2011. Kakuk decided to initiate Galvan’s termination, and 

discussed it with Shawn Parks, a Costco vice president. On May 12, Kakuk issued 

a counseling notice to Galvan and met with him. Mirrett was also present. 
12

The counseling notice stated that Galvan had been suspended pending an 

investigation, and that he faced possible discharge. The notice noted that Galvan 

had not completed the FMLA paperwork he had requested, and that he had been 

provided the phone number for the “Care Network,” Costco’s employee assistance 

hotline. Regarding the grounds for Galvan’s suspension, the notice described 

Galvan’s repeated tardiness, and further stated: “[Galvan] has to be supervised by 

upper [m]anagement and peers alike. He has created a situation . . . that has had 

employees and [m]anagers stay after their scheduled shifts due to his poor decision 

making and lack of follow-through. He oversees the floor crew, but doesn’t 

interact or follow-up with them. . . . His time management skills have us running 

around [at the] last minute trying to complete the work [he] should be 

accomplishing.” 

During the meeting, Galvan proposed the following “[p]lan to correct 

behavior” on a portion of the notice for employee remarks: “Calling Care Network 

and work with medical doctors.” In addition, he provided the following written 

response: “Yes, I have had problems that I haven’t resolved. I have a medical 

condition that requires me [to] tak[e] different meds and feel that my mind [and]

body is not where it was . . . . I was afraid, embarrassed to tell the staff that meds 

are being changed and adjusted. Hopefully, I can get help to get me back to who I 

was. [¶] My condition is ongoing and I feel . . . that it was only a bandage on it, 

but continues with the issues that I have. I want to be a hundred percent dedicated 

to my family and Costco right now. I’m not close to either. . . .” 

Galvan acknowledged that at the time of the May 12 meeting, he had never 

asked Ruttenberg to recommend that he be subject to any work restrictions. In 

response to an inquiry whether prior to May 12, Galvan asked Ruttenberg for a 

note adjusting his restrictions, Galvan answered: “No. . . . [Ruttenberg] had been 

changing my meds and that’s the way we thought we were going to be able to deal 
13

with this.” (Italics added.) Galvan further testified that at some point after the 

May 12 meeting, he discussed an FMLA leave with Ruttenberg, although he could 

not recall when he did so. 

Ruttenberg testified in his deposition that on May 11, the day before Galvan

met with Kakuk and Mirrett, Ruttenberg conducted a regularly scheduled 

appointment with Galvan; this was Ruttenberg’s first contact with Galvan 

following his previous appointment on March 30. After Galvan reported that his 

medication had improved his functioning in several ways, Ruttenberg decided to 

adjust the dosage. According to Ruttenberg, although Galvan was having 

“difficulty functioning in the workplace,” Galvan never suggested that he needed 

leave or any other work-related accommodation or restriction. Ruttenberg had no 

recollection that Galvan presented him with FMLA paperwork regarding a leave. 

Ruttenberg further testified that his next contact with Galvan occurred on May 21, 

when they first discussed a leave. 

On May 12, Kakuk placed Galvan on a seven-day unpaid suspension, and 

discussed Galvan’s discharge with several persons who had witnessed his conduct. 

Kakuk then referred the discharge to Parks, who forwarded it to Denis Zook, a 

Costco executive vice president. Parks and Zook approved Galvan’s discharge. In 

addition, Brenda Weber, a Costco personnel director, informed Kakuk that there 

was sufficient documentation to support Galvan’s discharge. On May 19 and 20, 

Kakuk made phone calls to Galvan to set up a meeting for May 23.

4

 

4

As noted later in our discussion (see pt. D.2.iv., post), there is some dispute 

whether the discharge decision was made May 16 or 17. Kakuk testified, however, that 

the decision was made during the seven-day suspension period (ending May 19), and he 

submitted a declaration stating that he called Galvan on May 19 and 20 to set up the May 

23 “termination meeting” at which he intended to communicate Costco’s decision to 

Galvan. 
14

On May 21, the day after speaking with Kakuk, Galvan phoned Ruttenberg 

to discuss an FMLA leave. Galvan failed to appear at the May 23 meeting, but that 

same day faxed Kakuk a request for an FMLA leave. Costco then sent Galvan his 

discharge paperwork and final check. 

3. Galvan’s Showing 

In opposition to summary judgment, Galvan contended there were triable 

issues regarding whether Costco knew that following his leave, he suffered from a 

disability or medical condition and sought a reasonable accommodation. Galvan

offered the following version of the underlying facts: From 1999 to 2009, he 

received praise for his work and was promoted several times. In 2009 and 2010, 

while employed at the Canoga Park warehouse, he began to suffer from what was 

later diagnosed as depression, anxiety, and panic. In June 2010, he received 

treatment in an emergency ward for abdominal pain related to stress. 

On August 31, 2010, after being “written up” for excessive tardiness, Galvan

was demoted to a junior night manager and transferred to the Simi Valley 

warehouse. The demotion caused Galvan considerable distress and anxiety, for 

which he sought medical treatment. Galvan informed Costco that he had 

significant emotional and mental issues, and that he suffered from anxiety. 

From September 1, 2010 to March 7, 2011, Galvan took a medical leave to 

deal with major depression, anxiety, and panic disorder. While on leave, Galvan 

sent Costco copies of medical records from Ruttenberg stating that Galvan suffered

from “severe depression” and anxiety, and was taking certain medications. In 

March 2011, when Ruttenberg released Galvan to work without restriction, the 

release form identified Ruttenberg as a psychiatrist. 

Galvan maintained there was considerable evidence that after he returned 

from the leave, Costco knew he needed a reasonable accommodation to deal with 
15

the side effects of the medication for his depression. Galvan pointed to evidence 

that he told Mirrett and Kakuk that his medication affected his performance and 

that he was attempting to adjust the medication. Galvan also submitted evidence 

that no later than his May 12, 2011 meeting with Kakuk, both Kakuk and Weber 

knew that Galvan attributed his deficient performance to his depression

medication. 

According to Weber’s records, on May 10, 2011, Galvan informed her by email that he had seen a doctor because he had awakened with chest pains. In 

addition, Galvan stated that he had an appointment the next day with his “other 

Dr.” On May 11, Weber conversed with someone -- apparently Kakuk -- who 

stated: “[Galvan] told my [assistant manager] that he’s on meds for depression. 

Never said that depression is why he’s late.” 

Later, after Kakuk conducted his May 12 meeting with Galvan, Kakuk

talked to Weber. According to Weber’s records, Kakuk made the following 

remarks: “[H]e’s on [six] dif[ferent] meds due to demotion[.] [H]e had anxiety 

and depression[.] [H]asn’t been able to get meds right . . . . [S]aid he didn’t tell us 

because embarrassed by it. Had same issues before demoted and before meds 

(late, poor work performance)[.] . . . Had thoughts of suicide while on [leave]. 

Not feeling that way now. He says he needs help.” Weber’s records also reflect 

the following remark by Kakuk: “[Galvan] says the FMLA paperwork is at 

[doctor’s] as of May 11[].” 

4. Trial Court’s Rulings 

In assessing Galvan’s FEHA claims, the trial court determined there were 

triable issues regarding whether Costco knew that Galvan had a disability before it 

decided to discharge him. The court nonetheless ruled that summary adjudication 

on the FEHA claims was properly granted, concluding that Galvan requested no 
16

accommodation regarding his disability, and that Costco’s decision to discharge 

him was based solely on legitimate, nondiscriminatory reasons. 

D. Analysis

For the reasons discussed below, we see no error in the trial court’s 

determinations. The focus of our inquiry is initially on Galvan’s key claims, that 

is, the “reasonable accommodation” claims and the claim that he was discharged 

for a discriminatory reason.

1. Costco’s Knowledge of a Disability

We begin with an issue central to those claims, namely, whether Costco was 

aware that Galvan had a disability. Although Costco challenged Galvan’s 

discrimination claim on the ground that it was unaware of his disability (Brundage 

v. Hahn (1997) 57 Cal.App.4th 228, 236-237 (Brundage) [disability discrimination 

claims fail when employer is ignorant of disability], that challenge was also 

relevant to his “reasonable accommodation” claims, as the statutory provisions 

underlying those claims predicate employer liability on a “known” disability (Avila 

v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1252-1253 (Avila); 

§ 12940, subds. (m), (n)). 

Under FEHA, the term “[m]ental disability” includes “any mental or 

psychological disorder or condition[] such as . . . emotional or mental illness 

. . . that limits a major life activity.” (§ 12926, subd. (j)(1).) Here, FEHA specifies 

that “‘[l]imit[]’ shall be determined without regard to mitigating measures[] such 

as medications . . . unless the mitigating measure itself limits a major life activity.” 

(§ 12926, subd. (j)(1)(a), italics added.) In addition, FEHA states that a mental 

disorder “limits a major life activity” when it makes “achievement” of that activity 
17

“difficult,” and defines “‘[m]ajor life activities’” to include “working.” (§ 12926, 

subds. (j)(1)(B), (j)(1)(C).)

Here, the record discloses evidence that following Galvan’s leave, Costco 

knew that he had taken the FMLA leave to address depression and anxiety, that he 

returned to work after the leave under the care of a psychiatrist, that he had been 

prescribed medication to control his depression, and that his medication’s side 

effects influenced his performance at work. Although nothing in the record 

suggests that Costco received any medical information, reports, or requests from 

Ruttenberg following Galvan’s leave, there is evidence that Galvan discussed his 

medication and its side effects with his supervisors. Accordingly, in view of the 

statutory provisions described above, the trial court correctly determined that there 

were triable issues regarding Costco’s knowledge of a disability, that is, whether 

following the leave, Costco knew that Galvan was treating his depression with 

medication that influenced his performance as an employee. 

2. “Reasonable Accommodation” Claims

We turn to Galvan’s claims that Costco failed to engage in an interactive 

process regarding a reasonable accommodation, and failed to provide such an 

accommodation. Unlike Galvan’s discrimination claim (see pt. D.3., post), those 

claims require no showing that Costco made an unfavorable decision regarding the 

terms of Galvan’s employment -- for example, that it discharged him -- or that it 

acted on the basis of a discriminatory motive. (King v. United Parcel Service, Inc.

(2007) 152 Cal.App.4th 426, 442 (King); Jensen v. Wells Fargo Bank (2000) 85 

Cal.App.4th 245, 256 (Jensen).) The “reasonable accommodations” claims 

themselves are also distinct, as they involve “different proof of facts. [Citation.] 

The purpose of the interactive process is to determine what accommodation is 

required. [Citation.] Once a reasonable accommodation has been granted, then the 
18

employer has a duty to provide that reasonable accommodation. [Citation.]” 

(A.M. v. Albertsons LLC (2009) 178 Cal.App.4th 455, 464.) Nonetheless, although 

the claims are independent, “each necessarily implicates the other.” (Gelfo v. 

Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 54 (Gelfo).) 

We conclude that summary adjudication was properly granted on both 

claims due to fatal deficiencies directly related to the “‘interactive process’” claim.

Generally, an employer is not required to provide an accommodation when that 

omission is due to the employee’s failure to present information -- in the form of a 

request for an accommodation, or in some other way -- sufficient to initiate the 

interactive process (King, supra, 152 Cal.App.4th at pp. 442-444), or when the

employer “did everything in its power to find a reasonable accommodation, but the 

. . . interactive process broke down because the employee failed to engage in 

discussions in good faith” (Jensen, supra, 85 Cal.App.4th at p. 263). As explained 

below (see pt. D.2.iii., post), the evidence established (1) that Galvan never 

requested an accommodation or otherwise triggered Costco’s obligation to engage 

in the interactive process required under FEHA, and (2) that Costco nonetheless

engaged in an “interactive process” that broke down due to Galvan’s conduct. 

i. Employee Duties Regarding the “Interactive Process”

“The ‘interactive process’ required by the FEHA is an informal process with 

the employee or the employee’s representative, to attempt to identify a reasonable 

accommodation that will enable the employee to perform the job effectively.” 

(Wilson, supra, 169 Cal.App.4th at p. 1195.) Reasonable accommodations may 

include adjustments to the employee’s work schedule, transfers to a vacant 

position, and leave. (Id. at pp. 1193-1194.) 

Under FEHA, the employee must initiate the interactive process “unless the 

disability and resulting limitations are obvious.” (Scotch, supra, 173 Cal.App.4th 
19

at p. 1013.) Although the regulations accompanying FEHA state that employers 

have an “affirmative duty” to offer reasonable accommodations to employees with 

a known disability, the regulations recognize that in some instances, no 

accommodation can be identified or implemented unless the interactive process is 

triggered. (Cal. Code Regs., tit. 2, §§ 11068, subd. (a), 11069, subd. (a).) The 

regulations further provide that absent exceptional circumstances not present here, 

the employer must initiate the interactive process when the employee requests an 

accommodation, or when the employer “becomes aware of the need for an 

accommodation through a third party or by observation . . . .” (Cal. Code Regs., 

tit. 2, § 11069, subds. (b)(1), (b)(2).) 

“Typically, an . . . employee triggers the employer’s obligation to participate 

in the interactive process by requesting an accommodation. [Citation.] Although 

it is the employee’s burden to initiate the process, no magic words are necessary, 

and the obligation arises once the employer becomes aware of the need to consider 

an accommodation.” (Gelfo, supra, 140 Cal.App.4th at p. 62, fn. 22.) 

Nonetheless, “‘the interactive process of fashioning an appropriate accommodation 

lies primarily with the employee.’ [Citation.] An employee cannot demand 

clairvoyance of his employer. [Citation.] ‘“[T]he employee can’t expect the 

employer to read his mind and know he secretly wanted a particular 

accommodation and sue the employer for not providing it. . . . .”’ [Citation.] ‘It is 

an employee’s responsibility to understand his or her own physical or mental 

condition well enough to present the employer at the earliest opportunity with a 

concise list of restrictions which must be met to accommodate the employee.’” 

(King, supra, 152 Cal.App.4th at p. 443.) 

In King, a truck driver was transferred from a daytime shift to a more 

demanding evening schedule. (King, supra, 152 Cal.App.4th at p. 434.) After he 

was diagnosed with a blood disorder, he took a five-month medical leave. (Ibid.) 
20

Upon returning from the leave, the driver presented a note from his doctor, stating 

that he was released to perform his regular duties and hours. (Id. at p. 444.) The 

driver was returned to his evening schedule, and later discharged. He asserted 

disability-related FEHA claims, alleging that his employer failed to accommodate 

his blood disorder. (Id. at pp. 442-444.) The trial court granted summary 

judgment on the claims, reasoning that the driver neither made a specific request 

for a necessary accommodation nor presented a “concise list of restrictions.” In 

affirming the summary judgment, the appellate court noted that the driver neither 

communicated his disorder-related work distress to his supervisors nor clarified his 

medical restrictions. (Id. at p. 443.) The court stated: “We agree with the trial 

court that plaintiff has not sustained his burden of demonstrating a genuine issue of 

material fact given his failure to get additional clarification from his doctor . . . and 

to communicate his limitations to his supervisors.” (Id. at p. 444.) 

Furthermore, under FEHA, the employee, like the employer, is subject to an 

additional obligation after the interactive process has been initiated. “Both 

employer and employee have the obligation ‘to keep communications open’ and 

neither has ‘a right to obstruct the process.’ [Citation.] ‘Each party must 

participate in good faith, undertake reasonable efforts to communicate its concerns, 

and make available to the other information which is available, or more accessible, 

to one party. Liability hinges on the objective circumstances surrounding the 

parties’ breakdown in communication, and responsibility for the breakdown lies 

with the party who fails to participate in good faith.’ [Citation.]” (Scotch, supra, 

173 Cal.App.4th at p. 1014.) Under the “good faith communication” requirement, 

“[a] party that obstructs or delays the interactive process is not acting in good faith. 

A party that fails to communicate, by way of initiation or response, may also be 

acting in bad faith.” (Beck v. Univ. of Wis. Bd. of Regents (7th Cir. 1996) 75 F.3d 
21

1130, 1135; accord, Humphrey v. Memorial Hospitals Association (9th Cir. 2001)

239 F.3d 1128, 1137 (Humphrey).)

ii. Relevant Evidence

Viewed in the light most favorable to Galvan, the evidence shows that after 

Ruttenberg released Galvan for work without any restrictions in early March 2011,

his work performance at the warehouse was deficient. His tardiness impaired the 

transition between the morning and evening shifts, and he failed to perform key 

tasks during his shift. At some point, his supervisors also became aware that 

Galvan was taking medication that influenced his work performance. 

Through Costco’s “counseling notice” process, Galvan’s supervisors 

repeatedly met with him, described his performance deficiencies, and asked him to 

propose how they could be resolved. Throughout that process, Galvan never 

requested any accommodation, general or specific, related to his medication. 

During the meetings on March 23 and April 4, 2011, Galvan did not mention the 

medication, and proposed to improve his performance without assistance from 

Costco. At the April 19, 2011 meeting, Galvan again did not refer to his 

medication, and instead requested paperwork for an FMLA leave to help him deal 

with his father’s illness, which he said would “help out completely.” After the 

meeting, Costco gave him the FMLA paperwork, but over the course of the next 

four weeks he failed to submit any request for a leave.

Galvan discussed his medications at the final meeting on May 12, 2011, 

when he was placed on a seven-day unpaid suspension pending an investigation 

regarding his potential discharge. Galvan stated that he had forwarded the FMLA 

paperwork to Ruttenberg and that he needed “help to get [him] back to who [he]

was.” However, when asked to offer a plan to resolve his performance 

deficiencies, Galvan stated only that he would call the Care Network -- Costco’s 
22

employee hotline -- and “work with medical doctors.” Furthermore, during the 

suspension period, he did not request a leave or any other accommodation, even 

though he knew that he faced possible discharge.

Although there is evidence that on May 12, Galvan told Kakuk and Mirrett

that he needed “help” and had sent the FMLA paperwork to Ruttenberg, nothing in 

the record supports the reasonable inference that he then manifested a desire or 

need for an accommodation from Costco. According to Galvan’s written response 

to the May 12 notice, the help he sought was to “get . . . back to who [he] was” 

through the adjustment of his medication; indeed, his proposed course of action 

was to “work with” his doctors. Furthermore, there is no evidence that Galvan and 

Ruttenberg discussed any possible accommodation from Costco until after Costco 

decided to discharge him and after Galvan had been summoned to a meeting set for 

May 23. According to Galvan’s and Ruttenberg’s own testimony, prior to May 21, 

when Galvan asked Ruttenberg to help him obtain a leave, Galvan and Ruttenberg 

were attempting to resolve Galvan’s problems independently of Costco, that is, by 

adjusting his medication. 

iii. Propriety of Summary Adjudication 

On the evidence described above, the trial court concluded there were no 

triable issues whether Galvan triggered Costco’s obligation to engage in an 

interactive process. We agree with that determination. In Taylor v. Principal 

Financial Group, Inc. (5th Cir. 1996) 93 F.3d 155, 158-161, the plaintiff, a sales 

manager, was repeatedly criticized by his employer for poor performance. 

Although he told his employer that he suffered from bipolar disorder and asked for 

a reduction in his performance goals and “a lessening of the pressure,” he 

identified no limitations or restrictions imposed by his illness, and indicated that he 

could meet his job requirements. (Id. at pp. 165-166.) After the employer 
23

responded by giving him six months to meet certain specified goals, he asserted 

ADA claims, alleging, inter alia, that his employer had failed to engage in an 

interactive process to determine a reasonable accommodation. (Ibid.) 

In affirming summary judgment on the claims, the Fifth Circuit concluded 

there was no triable issue whether the plaintiff triggered the employer’s duty to 

engage in an interactive process: “Where the disability, resulting limitations, and 

necessary reasonable accommodations, are not open, obvious, and apparent to the 

employer, as is often the case when mental disabilities are involved, the initial 

burden rests primarily upon the employee, or his health-care provider, to 

specifically identify the disability and resulting limitations, and to suggest the 

reasonable accommodations. It simply stands to reason that the employee and his 

health-care provider are best positioned to know what type of accommodation is 

appropriate for the employee. When the nature of the disability, resulting 

limitations, and necessary accommodations are uniquely within the knowledge of 

the employee and his health-care provider, a disabled employee cannot remain 

silent and expect his employer to bear the initial burden of identifying the need for, 

and suggesting, an appropriate accommodation.” (Taylor, supra, 93 F.3d at 

p. 165.)

The reasoning of Taylor applies here. Although Costco was aware of 

Galvan’s medical history and that his depression medication influenced his 

performance, any limitations arising from the medication and the resulting 

reasonable accommodations, were “‘not open, obvious, and apparent’” to Costco. 

(Scotch, supra, 173 Cal.App.4th at p. 1013.) Galvan’s tardiness disrupted 

operations at the Simi Valley warehouse, as did his failure to perform key tasks 

during his shift. Because he arrived late for his evening shift, he interfered with 

the transition between the morning and the evening shift workers. During his shift, 

employees lost contact with him because he turned off his radio; moreover, he 
24

failed to complete closing tasks in a timely and adequate manner. Because 

Galvan’s shift began in the afternoon, it was not obvious how to resolve his 

tardiness; similarly, it was not obvious how to address his other deficiencies. The 

burden thus fell on Galvan to specify his limitations and identify some possible 

accommodations that he desired; he failed to do so. As explained above (see pt. 

D.2.ii., ante), prior to Costco’s discharge decision, Galvan never requested a leave 

or any other accommodation, and never provided Costco with information from 

Ruttenberg regarding his limitations or a possible accommodation. 

Summary adjudication was also proper for another reason, namely, that 

Costco’s “counseling notice” process, as applied to Galvan, effectively constituted 

an interactive process that broke down due to Galvan’s failure to participate in it.

5

In Tatum v. Hospital of the Univ. of Pa. (E.D. Pa. 1999) 57 F.Supp.2d 145, a

nursing assistant asserted an “interactive process” ADA claim against the hospital 

that employed her. At trial, the nursing assistant presented evidence that after 

developing a cyst, she felt pain while lifting and moving patients. (Id. at pp. 147-

148.) From 1973 to 1994, she was able to perform those essential tasks of her 

position, with some assistance provided as an accommodation by the hospital. 

(Ibid.) In 1994, she told her supervisor that she was having difficulty lifting and 

pulling heavy patients. (Ibid.) The hospital repeatedly asked her to obtain 

5

We may affirm the summary adjudication on a ground not relied upon by the trial 

court, provided that the parties have had an adequate opportunity to address that ground. 

(Bain v. Moores (2009) 172 Cal.App.4th 445, 471, fn. 39; Code Civ. Proc., 437c, subd. 

(m)(2).) That requirement is satisfied here, as Costco asserted the ground discussed 

above before the trial court and on appeal, and Galvan presented his views regarding the 

alternative ground in his reply brief. (Bain v. Moores, supra, 172 Cal.App.4th at p. 471, 

fn. 39.) 
25

information from her doctor detailing her physical capabilities and limitations, but 

she failed to do so. (Ibid.) When she refused to lift patients, the hospital placed 

her on an unpaid suspension. The trial court granted judgment on her “interactive 

process” claim as a matter of law, concluding that the hospital acted in good faith 

during the interactive process, and that the nursing assistant failed to provide the 

medical information necessary to identify a reasonable accommodation. 

Here, the record establishes that Galvan failed to meet the “good faith 

communication” requirement relating to the interactive process. The evidence 

shows that Costco repeatedly met with Galvan to discuss his performance 

deficiencies. At his request, Costco gave him FMLA paperwork for a leave,

predicated not on his own condition, but on his father’s illness. Even then, Galvan 

failed to submit the paperwork until more than a month had passed and Costco had

already determined to discharge him. Galvan did not, in fact, discuss a leave or 

any other accommodation with Ruttenberg. Indeed, even after the final meeting on 

May 12, 2012, when Galvan told his supervisors that he intended to work with 

Ruttenberg, and that he had forwarded the FMLA paperwork to him, Galvan 

discussed no accommodation with Ruttenberg until May 21, after the seven-day 

suspension period had expired and after he had been summoned to the May 23 

meeting. In our view, Galvan’s delays and failure to communicate cannot be 

regarded as good faith participation in an interactive process. 

iv. Galvan’s Contentions

Galvan contends that Costco’s knowledge of his disability, coupled with his 

other conduct, was sufficient to trigger Costco’s obligation to engage in an 

interactive process. He relies on decisions regarding the FEHA and the ADA 

standing for the proposition that the employer must explore reasonable 

accommodations once it has sufficient information -- in any suitable form --
26

regarding the employee’s disability, and his desire or obvious need for an

employer-provided accommodation.

6

 We accept that broad proposition. As 

explained above (see pt. D.2.iii., ante), however, despite repeated opportunities to 

communicate “the nature of the disability, resulting limitations, and necessary 

accommodations,” Galvan did not do so. (Taylor, supra, 93 F.3d at pp. 165-166.) 

Because those facts were not obvious to Costco, Galvan failed to trigger the 

interactive process required under FEHA.

There is no evidence that Costco disregarded information that amounted to a 

request for an accommodation from Costco, or that rendered obvious a desire or 

need for such an accommodation. Galvan knew how to ask for an accommodation, 

as he was a long term employee with managerial experience and knowledge of 

Costco’s leave policies; moreover, as we elaborate below, nothing before us 

6

Wysinger, supra, 157 Cal.App.4th at p. 426 [under FEHA, employer must engage 

in good faith interactive process to identify specific accommodation when employee with 

known lupus and arthritis requests an accommodation]; Prillman v. United Air Llines, 

Inc. (1997) 53 Cal.App.4th 935, 953 [FEHA requires employers to work with disabled 

employees to accommodate their needs]; Barnett v. U.S. Air, Inc. (9th Cir. 2000) 228 

F.3d 1105, 1111, vacated on other grounds by U.S. Airways, Inc. v. Barnett (2002) 535 

U.S. 391, 404 [under the ADA, “an employer has a mandatory obligation to engage in the 

interactive process and . . . this obligation is triggered either by the employee’s request 

for accommodation or by the employer's recognition of the need for accommodation”];

Taylor v. Phoenixville School Dist. (3d Cir. 1999) 184 F.3d 296, 313 (Phoenixville 

School Dist.) [employer must explore accommodations when “the employer can be fairly 

said to know of both the disability and desire for an accommodation”]; Diaz v. Federal 

Express Corp. (C.D. Cal. 2005) 373 F.Supp.2d 1034, 1041-1042, 1054-1055, 1064 (Diaz) 

[no express request for accommodation was required when employer received 

psychiatrist’s report specifying employee’s mental disorder and recommending 

modification of work responsibilities]; Norris v. Allied-Sysco Food Service, Inc. (N.D. 

Cal. 1996) 948 F.Supp. 1418, 1436 [employee need not expressly request 

accommodations when “[the] disability and the need to accommodate it are obvious”]; 

Schmidt v. Safeway, Inc. (D. Or. 1994) 864 F.Supp. 991, 997 [employee need not speak 

“magic words” to trigger inquiry into accommodations].)
27

suggests that his disability impaired his ability to request an accommodation. 

Furthermore, Costco’s “counseling notice” process afforded Galvan an opportunity 

to ask for help from Costco to resolve performance deficiencies based on personal 

problems. Indeed, at the April 19, 2011 meeting, when Galvan attributed his 

deficiencies to his father’s illness and asked for FMLA paperwork, Costco 

immediately provided it. Yet at the four “counseling notice” meetings, Galvan 

proposed no course of action relating to his disability that required action by 

Costco. Furthermore, Costco cannot reasonably be regarded as having ignored an 

obvious need for an accommodation when neither Galvan nor his doctor perceived 

that need, as Galvan never discussed obtaining an accommodation from Costco 

with Ruttenberg prior to May 21. On this record, we see no triable issue whether 

Costco had adequate notice that Galvan requested or needed an accommodation 

relating to his disability. 7

7

In a related contention, Galvan challenges the trial court’s determination that he 

admitted during his deposition that he never requested an accommodation from March 

2011 to the date of his termination. The court appears to have concluded that Galvan’s 

testimony constituted a judicial admission regarding that matter. Galvan contends his 

testimony did not rise to a judicial admission, as it did not conclusively nullify the 

possibility that he made an express request for some type of accommodation to some 

supervisor. It is unnecessary for us to resolve his contention, as, for the reasons discussed 

above, there are no triable issues whether Galvan requested an accommodation or 

otherwise triggered the interactive process required under FEHA. Those determinations 

are sufficient to support summary adjudication on his “reasonable accommodation” 

claims. 

Galvan’s reply brief suggests that the specific accommodation he requested was 

additional time for Ruttenberg to adjust his medication. Although there is evidence that 

Galvan told his supervisors at some point that his medication was being adjusted, nothing 

in the record raises the reasonable inference that he requested more time in order to 

complete the adjustments.
28

Pointing primarily to Bultemeyer v. Fort Wayne Community Schools (7th 

Cir. 1996) 100 F.3d 1281 (Bultemeyer) and Phoenixville School Dist., supra, 184 

F.3d 296, Galvan contends that because he had a mental disability, he was not 

required to carry the initial burden ordinarily imposed on employees to trigger the 

interactive process. As explained below, we disagree. Those decisions establish 

that when an employer knows that the employee’s mental disability appears to 

affect his or her ability to seek an accommodation or provide medical information, 

the employer must “meet the employee half-way,” that is, undertake more 

responsibility during the interactive process. (Bultemeyer, supra, 100 F.3d at 

p. 1285; accord, Phoenixville School Dist., supra, 184 F.3d at p. 314.) Thus, 

during the interactive process, “if it appears that the employee may need an 

accommodation but doesn’t know how to ask for it, the employer should do what it 

can to help.” (Bultemeyer, supra, 100 F.3d at p. 1285.) Furthermore, during the 

interactive process, the employer may be obliged to request additional information 

it believes that it needs, particularly when the employee’s “symptoms are flaring.” 

(Phoenixville School Dist., supra, at p. 315.)8 

Galvan maintains there is a triable issue whether his mental disability 

impaired his ability to initiate the interactive process and participate in it, placing 

special emphasis on his April 19, 2011 remark to Kakuk that he “needed help 

getting and submitting” the FMLA paperwork he then requested. However, 

nothing in the record raises the reasonable inference that Costco was on notice that 

8

Galvan also relies on a treatise stating that “[i]f mental illness prevents the 

employee from requesting an accommodation, the employer must devise one. . . .” (Chin 

et al., Cal. Practice Guide: Employment Litigation (The Rutter Group 2013) [¶] 

9:1244.2, p. 9-110 (rev. #1 2009).) As discussed above, we find nothing in the record to 

demonstrate Galvan was incapable of requesting an accommodation.
29

Galvan’s mental disability affected his ability to identify or ask for an 

accommodation. In September 2010, Galvan successfully applied for and obtained 

an FLMA leave, from which he returned without restrictions. In discussing his 

medication with supervisors, he attributed his reluctance to disclose the medication 

solely to embarrassment. On May 12, 2011, when Galvan discussed the FMLA 

paperwork he had been provided, he told his supervisors that it had been forwarded 

to his doctor and that he intended to work with his doctor. Furthermore, in 

opposing summary judgment, Galvan offered no expert medical evidence 

suggesting that his condition prevented him from seeking an accommodation.

Indeed, on May 21, 2011, he asked Ruttenberg to assist him in obtaining a leave, 

and Ruttenberg complied. 

Galvan suggests there is a triable issue whether Costco decided to terminate 

him before he requested the FMLA leave. That contention fails on the record 

before us. The record discloses that Galvan first made an appropriate request for 

an accommodation on May 23, 2011, when Ruttenberg faxed the FMLA leave 

request to Costco. The record further establishes that Costco made the termination 

decision before that date. It is undisputed that on May 12, 2011, Galvan received a 

counseling notice and was placed on a seven-day unpaid suspension. The notice 

stated: “[Galvan] will be suspended[] pending an investigation, and can [sic] result 

in additional disciplinary action, up to and including termination.” Although 

Kakuk could not recall the precise date on which he decided to discharge Galvan, 

Kakuk testified that the decision was made during the suspension period, i.e., on or 

before May 19. On May 19 and 20, Kakuk called Galvan to set up a meeting for 

May 23. Galvan testified that he remembered speaking to Kakuk when he called to 

set up a meeting, and that instead of appearing at the meeting, he had his wife fax 

his FMLA leave request to Costco. On May 24, after Galvan failed to appear at 
30

the May 23 meeting, Costco sent Galvan a discharge letter stating that he had been 

terminated on May 16.9 

Galvan also maintains that Costco was obliged to provide reasonable 

accommodations even if Galvan requested an FMLA leave after Costco’s 

termination decision. That contention presents an issue of first impression, as our 

research has disclosed no published decision examining whether FEHA obliges 

employers to provide accommodations following a termination decision. 

We find guidance regarding the contention from Nadaf-Rahrov, supra, 166 

Cal.App.4th at pp. 971-976, which examined the meaning of the term “reasonable 

accommodation” for purposes of section 12940, subdivision (m), which requires 

9

In an effort to raise a triable issue whether the discharge decision occurred after 

Costco received Galvan’s leave request on May 23, Galvan points to a May 17, 2011 email from Parks to Kakuk stating that Zook’s approval of the discharge would be sought 

“now.” Galvan further notes that Kakuk’s phone records regarding his May 19 and 20 

calls to Galvan do not expressly identify the meeting that Kakuk set as a “termination” 

meeting. However, as Parks testified that Zook promptly approved the termination when 

Parks called him and it is undisputed that Kakuk called Galvan to set up the May 23 

meeting a few days before, there is no basis to conclude Costco’s decision to discharge 

Galvan was made after his leave request on May 23. Indeed, Galvan did not consult 

Ruttenberg about seeking a medical leave until after he had been notified by Kakuk of the 

May 23 meeting. 

Galvan also suggests that certain purported inconsistencies in Costco’s records 

raise a triable issue whether the discharge decision preceded his May 23 leave request. 

He notes that his final check, which paid for his services through May 23, was dated May 

24; that Costco’s records reflect two different effective dates for his termination, namely, 

May 16 and 23; and that Kakuk testified that Costco normally takes 48 hours to prepare a 

discharged employee’s final check. To the extent Galvan suggests the discharge decision 

might have been made as late as 48 hours before his check was prepared, viz., Sunday, 

May 22, nothing in the record suggests the departments involved in preparing the final 

check-- including, according to Kakuk, Costco’s central payroll office -- function on 

Sunday. Even were we to indulge that hypothesis, moreover, this would still put the 

discharge decision prior to the date Galvan requested leave.
31

employers “‘to make reasonable accommodation for the known physical or mental 

disability of an applicant or employee.’” The issue presented in Nadaf-Rahrov was 

whether that provision imposes liability on an employer for failing to provide an 

accommodation when no accommodation would enable a disabled employee or 

applicant to perform the essential functions of the position held or sought. (Id. at 

pp. 971-976.) Following a discussion of the statutory scheme, the appellate court 

held that “reasonable accommodation” means “a modification or adjustment to the 

workplace that enables the employee to perform the essential functions of the job 

held or desired.” (Id. at p. 974.) As the court explained, that definition ensures 

that an employer is subject to liability for failing to make a reasonable 

accommodation only when there is some accommodation that will enable an

employee to perform the essential functions of his or her position. (Id. at p. 975.)

In view of Nadaf-Rahrov, we reject Galvan’s contention. Under NadafRahrov, when an employee becomes disabled, the purpose of a reasonable 

accommodation is to modify workplace conditions so that the employee may 

continue to perform the essential functions of the job held. That purpose is 

nullified when the employer properly decides to terminate an employee before an 

accommodation is requested. As we elaborate further below (see pt. D.3, post), 

under the circumstances presented here, Costco’s decision to terminate did not 

contravene FEHA. Accordingly, it would be unreasonable to subject Costco to 

liability for failing to provide Galvan with an accommodation after it decided to 

terminate his employment, merely because Galvan requested the accommodation 

before he formally learned of the decision. 

The four ADA decisions upon which Galvan relies are distinguishable. In 

two of the cases, the appellate court reversed summary judgment in an employer’s 

favor, concluding that the employer was potentially liable for failing to provide an

accommodation requested after a termination decision, as the interactive process 
32

had broken down due to the employer’s misconduct before that decision. 

(Humphrey, supra, 239 F.3d at pp. 1137-1139 [evidence showed that after 

employee initiated the interactive process, employer improperly failed to consider

reasonable accommodations before discharging employee]; Bultemeyer, supra, 100 

F.3d at pp. 1282, 1285-1286 [evidence showed that when mentally disabled 

employee returned from leave, employer, who knew employee needed 

accommodation but did not know how to ask for it failed to obtain information 

from employee or his psychiatrist regarding accommodation before discharging 

employee hours before he requested leave].) In the remaining cases, the court 

concluded that summary judgment in the employer’s favor was improper where

there were triable issues whether the employee requested an accommodation 

before the termination decision. (Criado v. IBM Corp. (1st Cir. 1998) 145 F.3d 

437, 440, 443-445 [evidence showed that employer terminated employee without 

considering employee’s accommodation request due to communication breakdown 

between employee’s doctor and employee prior to discharge decision]; FrommVane v. Lawnwood Med. Ctr., Inc. (S.D. Fla. 1997) 995 F.Supp. 1471, 1477

[evidence raised triable issues regarding date of termination decision].) Here, there 

are no triable issues whether prior to the termination decision, Galvan requested an 

accommodation or triggered the interactive process. In sum, summary 

adjudication was properly granted on both of his “reasonable accommodation” 

claims. (King, supra, 152 Cal.App.4th at pp. 442-444; Jensen, supra, 85 

Cal.App.4th at p. 263.)

3. Discrimination Claim 

We turn to Galvan’s discrimination claim. Under FEHA, discrimination 

claims, including those based on disability discrimination, are ordinarily evaluated 

in light of a three-stage burden shifting test. (Wills v. Superior Court (2011) 195 
33

Cal.App.4th 143, 159 (Wills); see Guz v. Bechtel (2000) 24 Cal.4th 317 (Guz).) 

Under the test, had Galvan reached trial on his claim, he “would . . . have borne the 

initial burden of proving unlawful discrimination, under well-settled rules of order 

of proof: ‘[T]he employee must first establish a prima facie [showing] of wrongful 

discrimination. If []he does so, the burden shifts to the employer to show a lawful 

reason for its action. Then the employee has the burden of proving the proffered 

justification is mere pretext.’ [Citations.]” (Martin v. Lockheed Missiles & Space 

Co. (1994) 29 Cal.App.4th 1718, 1730.) 

Here, Costco sought summary adjudication regarding Galvan’s 

discrimination claim on two grounds: (1) that he could make no prima facie 

showing of discrimination due to Costco’s ignorance of his disability (see 

Brundage, supra, 57 Cal.App.4th at pp. 236-237 [disability discrimination claim 

failed absent evidence that employer was aware of disability]); and (2) that there 

was a legitimate, nondiscriminatory basis for its decision to terminate him.

Because the trial court properly rejected the first ground (see pt. D.1., ante), we 

direct our attention to the second ground. 

To establish a legitimate, nondiscriminatory basis for discharging Galvan,

Costco relied on its showing related to Galvan’s “reasonable accommodation” 

claims. Costco contended that its decision to discharge was predicated solely on 

Galvan’s performance. According to Costco, Galvan’s persistent tardiness, which 

predated his FMLA leave, disrupted operations at the Simi Valley warehouse after 

his leave, as did his failure to perform key tasks during his shifts. Although his 

supervisors repeatedly met with him to resolve his performance deficiencies, he 

did not do so. Furthermore, as discussed above (see pt. D.2. iii, ante), Galvan 

neither requested an accommodation nor cooperated with his supervisors to 

identify some possible accommodation. In response, Galvan did not attempt to 

identify evidence establishing that Costco’s proffered reasons were a pretext for
34

discrimination. Rather, before the trial court, Galvan argued only that under 

section 12940, subdivision (a)(1), as a matter of law, termination for disabilityrelated conduct is termination “because of” the disability. On appeal, Galvan 

reiterates that contention.10 

The trial court concluded that Costco tendered legitimate nondiscriminatory 

reasons for the termination, and that Galvan failed to raise triable issues related to 

pretext or the existence of a discriminatory motive. In so concluding, the court 

rejected Galvan’s contention that Costco’s performance-based reasons constituted 

disability discrimination as a matter of law. As explained below, we agree with 

those determinations. 

As our Supreme Court has elaborated, “‘legitimate’ reasons [citation] in this 

context are reasons that are facially unrelated to prohibited bias, and which, if true,

would thus preclude a finding of discrimination. [Citations.]” (Guz, supra, 24 

Cal.4th at p. 358, italics deleted.) Thus, if an employer’s reasons for its conduct 

are not discriminatory, they “need not necessarily have been wise or correct. 

[Citation.] While the objective soundness of an employer’s proffered reasons 

supports their credibility . . . , the ultimate issue is simply whether the employer 

acted with a motive to discriminate illegally.” (Ibid.) Because the reasons offered 

for Costco’s termination decision were not discriminatory, they constitute a 

facially proper basis for that decision. 

The burden on summary judgment thus shifted to Galvan to demonstrate that 

Costco’s “actual motive was discriminatory.” (Guz, supra, 24 Cal.4th at p. 361.) 

10

Galvan’s reply brief suggests there are triable issues regarding the gravity of his 

performance deficiencies. By failing to raise the argument in his opening brief, he has 

forfeited the contention. (Campos v. Anderson (1997) 57 Cal.App.4th 784, 794, fn. 3; 9 

Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 701, pp. 769-771.)
35

To carry that burden, Galvan was required to offer “substantial evidence that the 

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

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

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

employer engaged in intentional discrimination.” (Hersant v. Department of 

Social Services (1997) 57 Cal.App.4th 997, 1005.) As the trial court correctly 

noted, Galvan failed to do so.

We reject Galvan’s contention that under the circumstances of this case, 

Costco’s performance-based reasons for its decision was discrimination as a matter 

of law. For the reasons discussed above (see pt. D.2. iii, ante) under FEHA, 

Galvan was obliged to trigger the interactive process -- by a request, or in some 

other suitable manner -- and participate in it in good faith; he did not do so. 

Accordingly, the issue presented is whether Costco’s performance-based reasons 

for discharging Galvan constituted discrimination when he failed to make his need 

for an accommodation known. 

As no reported decision has addressed that issue under FEHA, we look to 

federal decisions regarding the ADA. In Siefken v. Village of Arlington Heights

(7th Cir. 1995) 65 F.3d 664, 666 (Siefken), a municipality hired a police officer 

with diabetes believing that he had the condition under control. The officer failed 

to monitor his condition and blacked out while driving a patrol car, but was pulled 

over before he caused any damage. (Id. at p. 665.) After his discharge, he initiated 

a discrimination action under the ADA, which was dismissed for failure to state a 

claim. (Siefken, supra, 65 F.3d at p. 666.) In affirming that ruling, the Seventh 

Circuit noted that the only accommodation the officer proposed was requested after 

his termination, namely, a “‘second chance’” at controlling his condition. (Id. at 

pp. 666-667.) The Seventh Circuit stated: “[W]hen an employee knows that he is 

afflicted with a disability, needs no accommodation from his employer, and fails to 
36

meet ‘the employer’s legitimate job expectations’ [citation] due to his failure to 

control a controllable disability, he cannot state a cause of action under the ADA.” 

(Id. at p. 667.)

We reach the same conclusion here regarding Galvan’s FEHA claim. In 

interpreting FEHA, we seek a reasonable interpretation that is consistent with the 

apparent legislative intent, “‘and which, when applied, will result in wise policy 

rather than mischief or absurdity.’” (Dyna-Med, Inc. v. Fair Employment & 

Housing Com. (1987) 43 Cal.3d 1379, 1392, quoting Honey Springs Homeowners 

Assn. v. Board of Supervisors (1984) 157 Cal.App.3d 1122, 1136, fn. 11.) Here, 

there is evidence that Costco knew Galvan was taking depression medication that 

influenced his performance. Nonetheless, as explained above (see pt. D.2.iii, 

ante), under the circumstances presented here, Galvan had the burden under FEHA 

of establishing his need for an accommodation. Prior to Costco’s termination 

decision, Galvan requested no accommodation or change in his duties to allow him

to address the performance deficiencies repeatedly identified by Costco and 

acknowledged by Galvan himself. He did not trigger an interactive process, and 

failed to participate adequately in the interactive process that Costco nonetheless 

conducted. 

In view of Siefken, Costco’s performance-based reasons for discharging 

Galvan did not constitute discrimination under FEHA. To conclude otherwise 

would be to hold that employees with a known disability who neither request an 

accommodation nor implement the interactive process, despite an adequate 

opportunity to do so, may not be discharged for deficient job performance when 

their disability influences their performance. Because that interpretation of FEHA 

would place an unreasonable burden on employers, we reject it. (Dyna-Med, Inc. 

v. Fair Employment & Housing Com., supra, 43 Cal.3d at p. 1392.)
37

Galvan’s reliance upon certain federal decisions for the contrary position is 

misplaced. In several of those cases, the court concluded that summary judgment 

in the employer’s favor was improper on the disabled employee’s discrimination 

claim, notwithstanding the employer’s evidence that it had performance-based 

reasons for its employment decision, when there was evidence that the employee 

requested an accommodation or initiated the interactive process before the 

decision.11 In the remaining cases, the court concluded that absent special 

11

 McMillan v. City of New York (2d. Cir. 2013) 711 F.3d 120, 128-129 [reversing 

summary judgment in employer’s favor on ADA discrimination claim after determining 

that triable issue existed whether employer failed to accommodate mental disability]; 

Dark v. Curry County (9th Cir. 2006) 451 F.3d 1078, 1088-1089 [reversing summary 

judgment in employer’s favor on ADA discrimination claim after employee, a heavy 

equipment operator, was discharged following an epileptic seizure, when employee 

proposed accommodations to permit him to retain position]; Humphrey, supra, 239 F.3d 

at pp. 1138-1140 [reversing summary judgment in employer’s favor on ADA 

discrimination claim after determining that triable issues existed whether employer failed 

to accommodate mental disability; noting that “[t]he link between the disability and 

termination is particularly strong where it is the employer’s failure to reasonably 

accommodate a known disability that leads to discharge for performance inadequacies 

resulting from that disability”]; Ward v. Massachusetts Health Research Institute (1st Cir. 

2000) 209 F.3d 29, 37-38 [reversing summary judgment in employer’s favor on ADA 

discrimination claim after determining that triable issues existed whether employer failed 

to accommodate disability]; Borkowski v. Valley Cent. School Dist. (2d Cir. 1995) 63 

F.3d 131, 142-144 [same; noting that “[f]ailure to consider the possibility of reasonable 

accommodation . . . , if it leads to discharge for performance inadequacies . . . , amounts 

to a discharge solely because of the disabilities”]; Ambrose v. J. B. Hunt Transport, Inc.

(D. Or. 2014, Feb. 13, 2014, Case No. 3:12-cv-01740 - HU) 2014 U.S. Dist. LEXIS 

18361, *44-*59 [declining to grant summary judgment in employer’s favor on Oregon 

state law disability discrimination claim after determining that triable issues existed 

whether employer failed to accommodate disability and engage in interactive process]; 

Brown v. City of Salem (D. Or., Feb. 27, 2007, Civil No. 04-1541-HA) 2007 U.S. Dist. 

LEXIS 14738, *9-*23 [declining to grant summary judgment in employer’s favor on 

ADA disability discrimination claim, as there were triable issues whether employer 

discharged employee for sleeping on the job caused by his involuntary “microsleeps” 

disorder, for which the employee had sought and received accommodations]; Diaz, supra, 

(Fn. continued on next page.)
38

conditions, mentally disabled employees may not be discharged for disabilitycaused misconduct unrelated to the performance standards for the employee’s 

job.

12

 The cases thus address factual circumstances not presented here.

Galvan also directs our attention to Wills. There, a court clerk who suffered 

from bipolar disorder controlled her condition through psychiatric care and 

medication (Wills, supra, 195 Cal.App.4th at p. 149.) Her employer was aware of 

her disorder, as she took several medical leaves to deal with it. (Ibid.) After she 

made threatening remarks to some employees, she took a medical leave, during 

which she sent threatening e-mails to other employees. (Id. at pp. 149-151.) When 

she returned from the leave, she was discharged for making the threats. (Id. at 

pp. 151-153.) After she initiated a discrimination action under FEHA, the trial 

 

373 F.Supp.2d at pp. 1062, 1064-1065 [declining to grant summary judgment in 

employer’s favor on FEHA disability discrimination claim after determining that triable 

issues existed whether employer failed to accommodate disability and engage in 

interactive process].)

12

Gambini v. Total Renal Care, Inc. (9th Cir. 2007) 486 F.3d 1087, 1093, 1094 

[concluding that under Washington discrimination law, mentally disabled employee 

discharged for emotional outburst was entitled to jury instruction that “[c]onduct 

resulting from a disability is part of the disability and not a separate basis for 

termination,” in order to permit jury to assess whether employee’s “personality[,] and not 

her work product[,]” motivated termination]; Den Hartog v. Wasatch Academy (10th Cir. 

1997) 129 F.3d 1076, 1085-1086 & fn. 8 [concluding that under the ADA, mentally 

disabled employees may be held to legitimate performance criteria when given the 

opportunity to do so “by reasonable accommodation,” but that employers must otherwise 

tolerate “eccentric or unusual conduct” caused by the disability]; Equal Empl. 

Opportunity Commision v. Walgreen Co. (N.D. Cal., Apr. 11, 2014, Case No. 11-cv04470-WHO) __ ___ F.Supp.2d __, __ [2014 U.S. Dist. LEXIS 52061, *24-*32]

[declining to grant summary judgment in employer’s favor on ADA disability 

discrimination claim, notwithstanding employer’s evidence it fired diabetic employee 

who took food without prior payment to deal with sudden hypoglycemic episode, when 

there were triable issues whether employer made adequate accommodation for 

employee’s known need to resolve such episodes].)
39

court granted summary judgment on her claims. (Wills, supra, at pp. 152-153.) In 

affirming that ruling, the appellate court held that “FEHA does not prohibit an 

employer from distinguishing between disability-caused misconduct and the 

disability itself when the misconduct involves threats or violence against 

coworkers . . . .” (Id. at p. 167.) The court limited its holding, stating that it

“express[ed] no opinion on whether FEHA permits an employer to distinguish 

between disability-caused misconduct and the disability itself in any factual setting

. . . .” (Id. at p. 166.) Accordingly, Wills cannot reasonably be regarded as 

construing FEHA to prohibit Costco from discharging Galvan under the 

circumstances presented here. In sum, the trial court properly granted summary 

adjudication on Galvan’s discrimination claim. 

4. Other Claims

In view of the conclusions discussed above, summary adjudication was also 

properly granted on Galvan’s other claims. His FEHA claim for failure to prevent 

discrimination is fatally defective for want of a showing of actual discrimination.

(Scotch, supra, 173 Cal.App.4th at p. 1021; Trujillo v. North County Transit Dist. 

(1998) 63 Cal.App.4th 280, 289.) For similar reasons, his claim for wrongful 

termination in violation of public policy fails, as it is predicated on the same facts 

as his FEHA claims. (See Avila, supra, 165 Cal.App.4th at p. 1261; Nelson v. 

United Technologies (1999) 74 Cal.App.4th 597, 612-613.) Finally, summary 

adjudication on his underlying claims precludes his recovery of punitive damages. 

(See Cates Construction, Inc. v. Talbot Partners (1999) 21 Cal.4th 28, 60.) 
40

DISPOSITION

The judgment is affirmed. Costco is awarded its costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MANELLA, J.

We concur:

WILLHITE, Acting P. J.

EDMON, J.*

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

article VI, section 6 of the California Constitution.