Lin v. Kaiser Foundation Hospitals ( 2023 )

Filed 2/24/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
SUCHIN I. LIN, B314162
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 19STCV23260)
v.
KAISER FOUNDATION
HOSPITALS,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Barbara A. Meiers, Judge. Reversed
and remanded.
Gusdorff Law and Janet Gusdorff; The Rager Law
Firm, Jeffrey A. Rager and James Y. Yoon, for Plaintiff and
Appellant.
Cole Pedroza, Kenneth R. Pedroza and Zena Jacobsen,
for Defendant and Respondent.
____________________________________________
INTRODUCTION
Appellant Suchin Lin appeals from the trial court’s
grant of summary judgment in favor of her former employer,
respondent Kaiser Foundation Hospitals (Kaiser). Because
the record discloses triable issues of fact on Lin’s claims, all
of which relate to disability discrimination, we reverse the
judgment.
As part of a round of employee layoffs, Kaiser planned,
at least tentatively, to terminate Lin before Lin became
disabled. Kaiser’s plan to terminate Lin before she became
disabled, by itself, was (of course) not discrimination against
Lin because of a disability. But Kaiser did not complete its
layoff plans—or, a reasonable jury could find, make its final
determination to terminate Lin—until after Lin had become
disabled. On the record here, there was evidence from which
a reasonable jury could conclude that Kaiser’s ultimate
decision to terminate Lin was motivated, at least in
substantial part, by concerns Kaiser had about Lin’s
disability. That allows Lin’s complaint to survive summary
judgment.
2
1
FACTUAL AND PROCEDURAL BACKGROUND
A. Lin Receives Positive Performance Ratings
Before Her Disability
In June 1999, Kaiser hired Lin as a data management
associate. From 1999 to 2016, Lin was on several occasions
promoted or transferred to a different position, culminating
in a position as an IT engineer. During this period, Lin’s
managers evaluated her performance positively.
In May 2017, Lin was transferred to a position as a
Software Quality Assurance Associate Engineer in the
Innovation and Transformation (I&T) department, one of
eight departments within Kaiser’s Technology Risk
Organization (TRO). Lin had four teammates in the I&T
department, each of whom was more experienced than Lin in
quality assurance. Lin and her teammates were directly
supervised by Sridhar Manne. Manne, in turn, was
supervised by Douglas Monroe, who reported to I&T
executive director Wilson Henriquez.
In March 2018, Manne completed written 2017
performance evaluations for the I&T department, giving Lin
and each of her teammates the same overall rating of
“Successful Performance.” Manne rated Lin’s performance
as “Excellent” in several subcategories, including those that
encompassed meeting “timeframes” and operating
1
Our description of the record construes the facts in the light
most favorable to Lin, the party opposing summary judgment.
(See Faust v. California Portland Cement Co. (2007) 150
Cal.App.4th 864, 877.)
3
“efficiently.” Later in 2018, Manne conducted Lin’s mid-year
evaluation, again rating her performance as successful.
B. Lin Is Selected, Before She Becomes Disabled,
for a Reduction in Force (RIF)
In December 2018, Kaiser began to plan to lay off
certain employees, for economic reasons. Specifically, on
December 12, 2018, TRO senior director Mark Lopez
circulated an email stating that “potential reductions” were
required to meet 2019 budget targets and asking TRO
directors to select employees to be included on a list for
layoffs to be completed as part of a “Reduction in Force” or
“RIF” to help Kaiser meet budgetary goals for 2019.
I&T executive director Henriquez declared that on or
around December 18, 2018, he made the decision to
eliminate Lin’s position, explaining: “I selected Lin based on
discussions I had had earlier with Douglas Monroe and
Sridhar Manne about Lin’s performance issues in 2018, that
she was not getting up to speed as quickly as expected and
was still struggling in performing her duties as a Quality
Assurance tester.” As discussed further below, however,
there is at least ambiguity in the record about whether these
conversations actually took place. The contemporaneous
documentary record does not reflect these concerns about
Lin’s performance.
4
C. Lin Becomes Disabled and Makes Initial
Requests for Accommodation
On January 7, 2019, Lin fell in her workplace and
suffered an injury to her left shoulder. The same day, a
doctor issued a work status report placing Lin on modified
duty through January 11, with restrictions requiring Lin to
use a sling and to limit use of her left arm. Lin sent the
work status report to Manne on January 8, and on January
9 informed Manne that she could not move her left arm “at
all” and that she had an upcoming appointment to be
evaluated for surgery.
On January 21, 2019, Lin sent Manne a doctor’s report
placing her on modified duty through February 22, with new
restrictions limiting use of her left arm and requiring Lin to
attend medical and physical therapy visits. The next day
(January 22), a workers’ compensation claims examiner
asked Manne by email whether he would be able to
accommodate these restrictions. Manne responded: “Yes I
would be able to accommodate the modified duty. [¶] Suchin
[Lin] is on approved [non-disability-related] time off from
today thru Feb 12th. [¶] Once she is back, I will be assigning
her with lighter tasks.” Lin declared that Manne never
assigned her lighter tasks or discussed the possibility of
modifying her assignments with her.
5
D. Lin’s Supervisor Negatively Evaluates Lin’s
Performance in Connection with the RIF
On January 29, 2019, after Lin had suffered her injury,
Manne, Lin’s supervisor, discussed Lin’s performance with
human resources business partner Kimberly West.
According to West’s handwritten notes from their discussion,
Manne identified an issue with the quality of Lin’s work, at
least in part due to Lin’s “slow delivery.” West also noted
that Lin was on modified duty, and wrote beneath this note:
“slower typing?” Lin testified at her deposition that her
injury caused her to type more slowly.
The same day (January 29, 2019), I&T executive
director Henriquez emailed Manne, asking: “Which [I&T]
team members have a good analytical skill set? Which team
members have a good communication skill set? Which team
members have high technical acumen? Which team
members show good time management and organization? [¶]
It might be easier if you look at the questions above and tell
me how you would rate each member from a 1 to a 4.”
Manne responded with an attachment setting forth the
requested ratings for Lin and her four teammates in five
“competencies” (process improvement, analytical skills,
communication, technical acumen, and organization).
Manne gave Lin an aggregate rating of nine out of 20, while
giving each of her teammates a higher rating of 16 or above.
Henriquez testified at his deposition regarding his reason for
requesting this performance information: “It was probably
requested by me—from me to make sure that I had—that
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there was a good handle in terms of the folks in the group
and to make sure probably to compare and make sure that it
wasn’t an unjust termination—not termination, layoff . . . .”
Similar numerical ratings of employee competencies
were prepared in at least three other TRO departments.
West declared that these ratings were prepared and
collected “as part of Human Resources’ due diligence
processes in connection with the 2019 TRO reduction in
force.”
On January 31, 2019, Kaiser circulated an updated
RIF list, which had been narrowed from 31 to 25 employees
but still included Lin. Comments concerning the six
employees removed from the list indicated that two were
removed because they had resigned, two because contractors
had been terminated in their stead, one because “contractor
spend reduced,” and one because “M&A resource.”
E. Lin’s Supervisor Increases His Criticisms of
Lin’s Performance
On February 22, 2019, Lin’s modified duty was
extended by her doctor through March 25, subject to the
same restrictions limiting use of her left arm and requiring
her to attend medical and physical therapy visits. On
February 27, Manne met with Lin to discuss her
performance. In a February 28 email memorializing the
discussion, Manne stated that Lin’s “unavailability” had
occasionally forced her teammates to complete tasks for her
and that Lin’s “pace of execution needs improvement.”
7
Manne placed Lin on an “action plan” requiring her, inter
alia, to “manage [her] tasks within a reasonable time.”
Manne warned that she may be terminated if she failed to
show improvement.
Lin testified at her deposition about this February
2019 meeting with Manne. She testified that in the course
of complaining that Lin’s teammates had completed tasks for
her and that she needed to work at a faster pace, “[Manne]
said, you know, why are you seeing the doctors.” Lin told
Manne that her injury caused her pain and limited her
ability to type, and that she needed to attend medical and
physical therapy visits two or three times per week as
instructed by her doctor. Lin further told Manne that her
health prevented her from working overtime, and that she
“need[ed] help.” Nevertheless, Manne pressured her to work
unpaid overtime off the clock.
In the wake of this February 2019 meeting, Lin sent
written complaints to West in human resources that Manne
had, inter alia, asked her to work off the clock and created a
hostile environment, causing her such emotional distress
that she had been unable to sleep. At West’s suggestion, Lin
contacted Kaiser’s employee assistance program to discuss
her emotional distress, ultimately leading to her referral to a
psychiatrist.
On March 8, 2019, Manne met with Lin to discuss and
complete her 2018 year-end performance evaluation.
Although Manne again rated Lin’s overall performance as
successful, he wrote that she was at the “lower end” of
8
successful performance and rated her performance in several
subcategories as needing improvement. Soon thereafter, Lin
sent Manne a doctor’s report placing her on medical leave,
which was later extended through May 19.
F. Lin’s Termination and Complaint
In March 2019, Kaiser circulated two more drafts of
the RIF list, which was reduced first from 25 to 20
employees and finally to 17, still including Lin. On April 16,
Kaiser provided notice of the RIF to the 16 employees on the
final list other than Lin, who remained on medical leave. On
April 24, Kaiser notified Lin that her position had been
eliminated and that her employment would be terminated
effective June 23.
Within weeks of her termination, Lin filed her
complaint against Kaiser in this action. Her operative, first
amended complaint contained the following FEHA causes of
action: (1) disability discrimination; (2) retaliation for
requesting disability accommodations and opposing practices
forbidden under FEHA; (3) failure to prevent discrimination
and retaliation; (4) failure to accommodate a disability; and
(5) failure to engage in an interactive process regarding
disability accommodations. The complaint also contained
causes of action for wrongful termination in violation of
public policy and intentional infliction of emotional distress
(IIED).
9
G. Kaiser’s Motion for Summary Judgment
In June 2020, Kaiser moved for summary judgment or,
in the alternative, summary adjudication. Kaiser argued
that it was entitled to summary adjudication of Lin’s
disability discrimination and retaliation claims because
Henriquez had made the decision to eliminate Lin’s position
in the RIF in December 2018, before Lin sustained her
disability. For the same reasons, Kaiser argued that it was
entitled to summary adjudication of Lin’s “derivative” claims
for failure to prevent discrimination and retaliation,
wrongful termination, and IIED. Finally, with respect to
Lin’s claims for failure to accommodate her disability and to
engage in an interactive process, Kaiser argued the claims
failed as a matter of law because Kaiser had granted every
accommodation Lin requested, i.e., modified duty (as
prescribed by her doctors) and medical leave.
Lin opposed the motion. She did not dispute that her
name was selected for the initial RIF list in December 2018.
But she argued that the evidence showed this “proposed” list
was “subject to further review,” as reflected in the list’s
gradual reduction from 31 employees to the 17 who were
ultimately laid off. She further argued that her ultimate
termination was a result of Henriquez’s reliance on Manne’s
post-disability assessment of her, particularly on Manne’s
January 29, 2019 email to Henriquez rating her performance
much lower than that of her teammates. She argued that
Manne’s negative ratings were based on her disability and/or
her requests for accommodations, as evidenced by the
10
disparity in his evaluations of her performance before and
after these events, and by his criticism of performance issues
“emanating from her disability.” Finally, she argued that
because Manne never assigned her lighter tasks—as he said
he would—or discussed other possible accommodations to
help her overcome her disability-related pace issues, she had
raised triable issues of material fact on her accommodation
claims.
H. The Trial Court’s Hearing and Ruling
In April 2021, the trial court held a hearing on Kaiser’s
motion for summary judgment. In May 2021, the court
issued a minute order granting Kaiser’s motion for summary
judgment in its entirety. The court explained: “[T]he court
finds that the plaintiff has failed to produce facts, as opposed
to opinions and speculation, that the defendant terminated
her employment for any reasons other than those which it
has articulated relating to budget considerations and [the
RIF]. The undisputed evidence is . . . that this decision to
terminate the plaintiff was made before her disability was
made known to the defendant.” In response to Lin’s
argument that post-disability discussions of her performance
influenced Kaiser’s decision to terminate her, the court
stated, in relevant part: “The record is clear that these post-
decision-to-fire- discussions also occurred with regard to all
of the other employees who were also being let go as a part of
the same group of ‘firings,’ and . . . simply as a ‘pro forma’
part of [Kaiser’s] ongoing process of internally documenting
11
and processing [the initial RIF selections].” With respect to
Lin’s claims for failure to accommodate her disability and to
engage in an interactive process, the court noted that “it was
undisputed that all accommodations sought were granted.”
The court subsequently entered judgment in Kaiser’s
favor. Lin timely appealed.
DISCUSSION
Lin contends that the trial court erred in granting
Kaiser summary judgment on all her claims. For the
reasons discussed below, we agree and reverse the judgment.
A. Standard of Review
“On appeal after a motion for summary judgment has
been granted, we review the record de novo . . . . [W]e
determine with respect to each cause of action whether the
defendant seeking summary judgment has conclusively
negated a necessary element of the plaintiff’s case, or has
demonstrated that under no hypothesis is there a material
issue of fact that requires the process of trial, such that the
defendant is entitled to judgment as a matter of law.” (Guz
v. Bechtel National Inc. (2000) 24 Cal.4th 317, 334 (Guz).)
We view the evidence in the light most favorable to the
nonmoving party, drawing all reasonable inferences in that
party’s favor. (Weiss v. People ex rel. Department of
Transportation (2020) 9 Cal.5th 840, 864; see also Code Civ.
Proc., § 437c, subd. (c).)
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B. FEHA Disability Discrimination
1. Disability Discrimination Standards
FEHA prohibits an employer from discharging any
person from employment—or otherwise discriminating
against the person in terms, conditions, or privileges of
employment—because of the person’s disability. (Gov. Code,
§ 12940, subd. (a).)
Three aspects of FEHA are particularly significant
here. First, in situations where the evidence of disability
discrimination is circumstantial, “California has adopted the
three-stage burden-shifting test established by the United
States Supreme Court for trying claims of discrimination
. . . based on a theory of disparate treatment.” (Guz, supra,
24 Cal.4th at 354, citing McDonnell Douglas Corp. v. Green
(1973) 411 U.S. 792 (McDonnell Douglas).)2
The McDonnell Douglas test “places on the plaintiff the
initial burden to establish a prima facie case of
discrimination,” requiring evidence that: (1) the plaintiff was
a member of a protected class; (2) she was performing
competently in the position she held; (3) she suffered an
adverse employment action such as termination; and (4)
2
Lin contends that because she produced direct and not
merely circumstantial evidence of disability discrimination, the
McDonnell Douglas test does not apply, and her burden on
summary judgment is less onerous. We need not and do not
address this contention, because we conclude that Lin has raised
triable issues of material fact on her discrimination claim even
under the more burdensome McDonnell Douglas test.
13
some other circumstance suggests the employer acted on a
discriminatory motive. (Guz, supra, 24 Cal.4th at 354-355.)
The burden then shifts to the employer to produce
admissible evidence of one or more legitimate,
nondiscriminatory reasons for its adverse employment
action. (Id. at 355-356.) Finally, the burden shifts back to
the plaintiff “to attack the employer’s proffered reasons as
pretexts for discrimination, or to offer any other evidence of
discriminatory motive.” (Id. at 356.) “Invocation of a right
to downsize does not resolve whether the employer had a
discriminatory motive for cutting back its work force, or
engaged in intentional discrimination when deciding which
individual workers to retain and release.” (Id. at 358.)
Second, it is not ordinarily necessary for a disabled
employee to show that a disability was the sole reason for a
termination, or that the termination would not have
happened but for the disability. Instead, when a plaintiff-
employee advances a “mixed motive” theory (i.e., a theory
that an employer had both legitimate and discriminatory
motives for a termination), the plaintiff must show only that
her disability was a “substantial motivating factor” in the
challenged employment action. (Harris v. City of Santa
Monica (2013) 56 Cal.4th 203, 229-232, 241 (Harris).)
“[D]iscrimination, though not a ‘but for’ cause of an adverse
employment action (because the employer can show it would
have taken the same action in any event), might nonetheless
be found to be a substantial motivating factor . . . .” (Id. at
14
3
226.) Thus, “[i]f triable issues of material fact exist [as to]
whether discrimination was a substantial motivating reason
for the employer’s adverse employment action, even if the
employer’s professed legitimate reason has not been
disputed, the FEHA claim is not properly resolved on
summary judgment.” (Husman v. Toyota Motor Credit Corp.
(2017) 12 Cal.App.5th 1168, 1186.)
Third, under the so-called “‘cat’s paw’” doctrine, a
plaintiff “need not demonstrate that every individual who
participated in the [challenged employment action] shared
discriminatory animus in order to defeat a summary
judgment motion. . . . [S]howing that a significant
participant in an employment decision exhibited
discriminatory animus is enough to raise an inference that
the employment decision itself was discriminatory, even
absent evidence that others in the process harbored such
animus.” (DeJung v. Superior Court (2008) 169 Cal.App.4th
533, 551.)
3
To be clear, if an employer can persuade the trier of fact
that it would have made the same decision to terminate an
employee regardless of a discriminatory motive, the employee-
plaintiff is not ordinarily entitled to collect monetary damages,
and is limited to obtaining injunctive and declaratory relief and
attorneys’ fees. (Harris, supra, 56 Cal.4th at 232-235.) We
express no opinion as to whether Kaiser can make such a
showing at trial, or what such a showing would mean for the
ultimate relief available to Lin in this action.
15
2. Analysis
Applied here, these standards compel reversal of the
trial court’s summary adjudication of Lin’s FEHA disability
discrimination claim.
There is no serious dispute that Lin met her burden at
the first stage of the McDonnell Douglas test, and that
Kaiser met its burden at the second stage. Kaiser does not
contend (and the trial court did not find) that Lin failed to
meet her prima facie burden. Equally, Kaiser is certainly
correct that its decision to place Lin on the initial RIF list for
termination in December 2018—before Lin became
disabled—could not have been unlawful disability
discrimination or a pretext therefor.
But Kaiser’s placement of Lin on the December 2018
RIF list is not, by itself, dispositive. Kaiser did not actually
eliminate Lin’s position, provide final notice of the RIF list,
and ultimately give Lin notice of termination until April
2019—months after Kaiser became aware of Lin’s disability.
If Lin can show by competent evidence that between
December 2018 and April 2019 disability discrimination
became at least a substantial motivating factor in Lin’s
termination, then the fact that she was originally placed on
the list for a layoff is not decisive. The critical question is
whether the summary judgment record, construed in Lin’s
favor, rationally supports both of the following inferences: (a)
Kaiser’s December 2018 selection of Lin for the RIF list was
tentative, not final; and (b) Kaiser’s ultimate decision to
keep Lin on the RIF list and to terminate her employment
16
was based, at least in substantial part, on Lin’s disability.
For the reasons discussed below, we conclude that the record
rationally supports both of those inferences. That means
Kaiser was not entitled to summary judgment on Lin’s
FEHA disability discrimination claim.
a. A jury reasonably could find that
Lin’s December 2018 selection for the
RIF was tentative
The record is clear that the December 2018 RIF list
was not set in stone. Between December 2018 and March
2019, Kaiser circulated several progressively narrower
drafts of the RIF list. As Kaiser concedes: “There is no
dispute that the December 18, 2018 RIF list contained 31
names, and ultimately only 17 employees were laid off in
April 2019.” Kaiser further concedes that in other
departments within TRO (which encompassed Lin’s I&T
department), Kaiser averted layoffs of employees targeted by
its initial RIF plan “‘because another way was found to cut
costs,’” such as terminating contractors instead of the
initially selected employees. In Lin’s own I&T department,
Kaiser’s documents note that considerable savings were
predicted to be achieved by methods such as “[r]eduction of
Risk Engine support”; “[r]eduction of CEB Insights and
Cloud Security Alliance”; and “[r]eduction in travel, training
and additional savings.” On this record, drawing all
reasonable inferences in Lin’s favor, a jury rationally could
find that even after Kaiser selected Lin for the initial RIF
17
list in December 2018, it could have averted Lin’s
termination by finding other means to meet I&T’s budget
target.
Even more important, evidence in the record suggests
that after Lin became disabled in January 2019, Kaiser
considered factors directly related to employee performance
in deciding whether to maintain employees on the RIF list.
On January 29, 2019, in connection with his preparation of
plans for the RIF, I&T executive director Henriquez asked
Lin’s direct supervisor Manne for detailed ratings of
employee performance among the members of Lin’s team:
“Which team members have a good analytical skill set?
Which team members have a good communication skill set?
Which team members have high technical acumen? Which
team members show good time management and
organization?” Henriquez admitted at his deposition that in
2019 he asked for, obtained, and relied on Manne’s opinion
concerning Lin “in terms of the reduction in
force.” Moreover, Henriquez testified that his reason for
seeking this performance information was to “compare” the
members of the group and to ensure “it wasn’t an unjust
termination [or layoff].” A reasonable jury could infer from
Henriquez’s concern about the layoff’s fairness that had
Manne rated Lin’s performance in a manner suggesting her
layoff would be “unjust,” Henriquez would have sought to
avert Lin’s layoff, and cost-cut in a different area.
The reasonableness of this inference is further
supported by ambiguity in the record regarding the reasons
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for Lin’s initial selection for the RIF list in December 2018.
Through a declaration from Henriquez—whom Kaiser
characterizes as “the sole decisionmaker”—Kaiser sought to
establish that Henriquez selected Lin for the initial RIF list
in reliance on discussions with Manne and Manne’s
supervisor Monroe about Lin’s relatively poor performance
prior to 2019. But Monroe failed to recall these alleged
performance discussions at his deposition, and Kaiser failed
to produce any deposition testimony or other evidence
corroborating Henriquez’s declaration that these discussions
occurred. Kaiser’s failure to produce a firm record
explaining Lin’s initial selection for the RIF list helps to
support an inference that when Henriquez solicited and
received Manne’s evaluation of Lin’s performance on
January 29, 2019, he was open to removing Lin from the RIF
list on the basis of that information.
In response, Kaiser argues—as the trial court found—
that any efforts it took to assess employee performance after
December 2018 were entirely “pro forma” and lacked any
causal relation to Lin’s remaining on the RIF list. Kaiser
emphasizes that to the extent the record reveals Kaiser’s
stated reasons for removing 14 employees from the initial
RIF list, such as the termination of contractors instead,
those reasons were unrelated to the employees’ performance.
Kaiser also cites human resources executive West’s
declaration that the collection of performance information
was simply a function of “due diligence,” and Henriquez’s
deposition testimony characterizing his January 2019
19
request for such information from Manne as a mere
“formality.”
While these facts support inferences in Kaiser’s favor,
they are not determinative of the issues on this appeal. In
this posture, we are required to draw all competing
reasonable inferences in Lin’s favor. (See Weiss v. People ex
rel. Department of Transportation, supra, 9 Cal.5th at 864;
Code Civ. Proc., § 437c, subd. (c).) A reasonable jury could
readily conclude that when Kaiser, in 2019, collected
information about the performance of its employees in
connection with its RIF plan, Kaiser did so for a reason. It is
reasonable to infer that Kaiser substantially relied on the
information about employee performance it collected in
making decisions about the RIF. As noted, Henriquez—the
executive director of Lin’s department—specifically testified
that the reason he collected information in 2019 concerning
Lin’s performance was to determine whether the layoff
would be “unjust.” Thus, a jury reasonably could find that
Kaiser and Henriquez did not simply collect employee
performance information for (unspecified) “pro forma” or
“due diligence” reasons, but instead were relying, at least in
substantial part, on information about Lin’s performance as
an employee in deciding whether to proceed with Lin’s
termination. We turn now to the question whether the jury
could find this decision was substantially motivated by Lin’s
disability.
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b. A reasonable jury could find that
Lin’s termination was substantially
motivated by her disability
For Lin’s FEHA disability discrimination claim to
survive summary judgment, Lin must show facts from which
a reasonable jury could conclude that Kaiser’s ultimate
decision to terminate her employment was motivated in
substantial part by her disability. (See Harris, supra, 56
Cal.4th at 231-232; Husman v. Toyota Motor Credit Corp.,
supra, 12 Cal.App.5th at 1186.) Here, too, we find that the
record contains sufficient evidence for Lin to meet her
burden.
Before Lin sustained her disability, neither Manne nor
any prior supervisor gave her a negative performance
evaluation. Throughout Lin’s more than 15 years at Kaiser
before she joined Manne’s team, her supervisors consistently
evaluated her performance as successful. Manne, too, gave
Lin successful performance ratings on her 2017 and mid-
year 2018 performance evaluations. While there is little
evidence in the record concerning the performance of Lin’s
teammates, Manne rated each teammate’s performance in
2017 as successful—the same rating he gave Lin.
After Lin’s disability, however, Manne judged Lin’s
performance much more harshly in comparison to that of her
teammates. On January 29, 2019 (three weeks after
receiving notice of Lin’s disability), Manne informed
Henriquez that Lin was by far the lowest performer in the
I&T department, assigning her an aggregate rating of 9 out
21
of 20 while rating each of her teammates 16 or above.
Manne went on to provide Lin with increased negative
feedback when placing her on an action plan in February
2019 and completing her 2018 year-end performance
evaluation in March 2019.
A reasonable jury could find that Manne’s newly
negative evaluation of Lin’s performance was substantially
motivated by her disability. In the weeks between Lin’s
injury to her left shoulder on January 7, 2019, and Manne’s
negative evaluation of Lin to Henriquez on January 29,
Manne was informed that Lin’s injury limited her use of her
left arm (which at one point she could not move “at all”), that
she might need surgery, and that she needed to attend
regular medical and physical therapy visits. On January 22,
when confirming that he could accommodate the restrictions
prescribed by Lin’s doctors, Manne expressed the intent to
assign Lin lighter tasks, supporting a reasonable inference
that he believed her disability prevented her from handling
her usual workload. On January 29—the same day Manne
provided his negative evaluation of Lin to Henriquez—he
complained to human resources executive West about Lin’s
“slow delivery” and (a jury reasonably could infer) her slow
typing, which Lin testified was caused by her disability. A
month later (on February 27), Manne similarly criticized
Lin’s “pace of execution” and—according to Lin’s testimony,
which a jury would be entitled to credit—expressly linked
this complaint to her time spent at medical appointments.
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Kaiser does not dispute that a reasonable jury could
find Manne’s disability-related animus affected his negative
evaluations of Lin’s performance. Nor does it dispute that
Manne’s negative evaluations were provided to Henriquez,
who had decision-making authority over whether Lin would
be terminated as part of the RIF. Instead, Kaiser disputes
the factual basis for Lin’s theory that Henriquez was
Manne’s “cat’s paw,” arguing that Lin failed to raise any
triable issue regarding whether Henriquez ever reevaluated
Lin’s initial selection for the RIF. Having rejected that
argument above, we now conclude that Lin has raised triable
issues on her cat’s paw theory. In other words, a reasonable
jury could find that Henriquez relied, at least in substantial
part, on Manne’s negative performance evaluations and on
Manne’s disability-related animus in deciding that Lin
would not be removed from the RIF list and her employment
would be terminated. Thus, a reasonable jury could find
that Lin’s disability was at least a substantial motivating
factor for her termination. That is a sufficient finding to
subject Kaiser to liability. (Harris, supra, 56 Cal.4th at 231-
232.)
We therefore reverse the trial court’s summary
adjudication of Lin’s disability discrimination claim.
C. FEHA Retaliation
For similar reasons, we conclude Lin’s claim for FEHA
retaliation survives summary judgment. FEHA makes it
unlawful for an employer to “retaliate or otherwise
23
discriminate against a person for requesting accommodation
[for a disability], regardless of whether the request was
granted.” (Gov. Code, § 12940, subd. (m)(2), italics added.)
Here, a reasonable jury could find that Kaiser, acting
on Manne’s retaliatory animus, terminated Lin’s
employment in substantial part because Manne resented
Lin’s accommodation requests—even though Kaiser
ultimately granted those requests. Lin first requested
disability accommodations on January 8, 2019 (the day after
her injury), and she requested further accommodations—
including regular attendance at medical and physical
therapy visits—on January 21. Although Kaiser granted
these requests, a jury reasonably could find that Manne was
troubled by the need to provide the requested
accommodations. This is particularly true given Lin’s
testimony that Manne later complained of her time spent at
medical appointments.
A reasonable jury could also find that Manne’s
resentment over accommodations affected his negative
ratings of Lin in the January 29 performance evaluation. As
discussed above, there are triable issues regarding whether
Manne’s negative ratings, in turn, affected Henriquez’s
decision to leave Lin on the RIF list and to ultimately
terminate her employment. Accordingly, because a
reasonable jury could, on this record, find a violation of
Government Code section 12940, subdivision (m)(2), we
24
reverse the trial court’s summary adjudication of Lin’s
4
retaliation claim.
D. Derivative Claims for Failure to Prevent
Prohibited Conduct, Wrongful Termination,
and IIED
The parties agree that if we conclude—as we have—
that Lin’s claims for disability discrimination and retaliation
survive summary judgment, we should reach the same
conclusion with respect to Lin’s “derivative” claims for
failure to prevent discrimination or retaliation, wrongful
termination in violation of public policy, and IIED.
Accordingly, we reverse the trial court’s summary
adjudication of these claims as well.
E. Failure to Accommodate Lin’s Disability and to
Engage in the Interactive Process
Under FEHA, an employer is required “to make
reasonable accommodation for the known physical or mental
disability of an applicant or employee.” (Gov. Code, § 12940,
subd. (m)(1).) Relatedly, the employer is required “to engage
in a timely, good faith, interactive process with the employee
or applicant to determine effective reasonable
accommodations, if any, in response to a request for
4
We need not address Lin’s alternative theory in support of
her retaliation claim, i.e., that Kaiser retaliated against her for
opposing practices forbidden under FEHA. (See Gov. Code,
§ 12940, subd. (h).)
25
reasonable accommodation by an employee or applicant with
a known physical or mental disability . . . .” (Gov. Code,
§ 12940, subd. (n).) Contrary to Kaiser’s contention (which
the trial court accepted), it is not necessarily sufficient for an
employer merely to grant the employee each accommodation
she requests. “‘[T]he employer’s obligation to engage in the
interactive process extends beyond the first attempt at
accommodation and continues when the employee asks for a
different accommodation or where the employer is aware
that the initial accommodation is failing and further
accommodation is needed.’” (Scotch v. Art Institute of
California (2009) 173 Cal.App.4th 986, 1013, italics added.)
Put differently, while an employer need not read an
employee’s mind or provide accommodations of which it is
unaware, when an employer is aware of a further reasonable
accommodation that is needed, the employer has a duty to
consider that accommodation even if the employee does not
explicitly request it. (See Cal. Code Regs., tit. 2, § 11068,
subd. (e) [“An employer or other covered entity is required to
consider any and all reasonable accommodations of which it
is aware or that are brought to its attention by the applicant
or employee” (italics added)].)
Applying these standards to the record before us,
viewed in the light most favorable to Lin, we conclude that
Lin has made a showing sufficient to survive summary
judgment. Although Kaiser granted Lin each
accommodation she requested, the record contains evidence
that through Manne, Kaiser knew of—but failed to discuss
26
or provide—an additional reasonable accommodation that
Lin needed, namely assigning Lin “lighter tasks.” On
January 22, 2019, Manne expressed an intent to provide this
very accommodation upon Lin’s return from a vacation.
When Lin returned in February 2019, however, she was not
assigned lighter tasks, but instead was subjected to
increased criticism of her performance. In response, Lin told
Manne that his performance concerns were linked to her
disability and that she “need[ed] help.” A jury reasonably
could find that by this point, Manne was aware that Lin’s
initial accommodations were failing and further
accommodation was needed. That would trigger Kaiser’s
duties to engage in the interactive process and to consider
any and all reasonable accommodations of which it was
aware, including the lighter assignments Manne himself had
contemplated. (See Scotch v. Art Institute of California,
supra, 173 Cal.App.4th at 1013; Cal. Code Regs., tit. 2,
5
§ 11068, subd. (e).) Kaiser does not contend that it
discharged these duties or that assigning Lin lighter tasks
would have been unreasonable.
5
The cases on which Kaiser relies are distinct. (See Doe v.
Department of Corrections & Rehabilitation (2019) 43
Cal.App.5th 721, 739-740 [employee failed to provide employer
sufficient information to establish he was disabled, much less to
establish his need for accommodations]; King v. United Parcel
Service, Inc. (2007) 152 Cal.App.4th 426, 444 [employee failed to
communicate his disability-related distress to his supervisors,
who reasonably relied on his “apparent” ability to “‘get the job
done’” notwithstanding his disability].)
27
Accordingly, we reverse the trial court’s summary
adjudication of Lin’s claims for failure to accommodate her
disability and to engage in the interactive process. Because
we likewise reverse the court’s summary adjudication of
Lin’s other claims, we reverse the judgment in its entirety.
28
DISPOSITION
The judgment is reversed. The matter is remanded to
the trial court for further proceedings consistent with this
opinion. Lin is awarded her costs on appeal.
CERTIFIED FOR PUBLICATION
DAUM, J. *
We concur:
COLLINS, J.
CURREY, Acting P.J.
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to Article VI, section 6, of the California
Constitution.
29