Castro-Ramirez v. Dependable Highway Express, Inc.

Facts

The statutory framework. The California Fair Employment and Housing Act (FEHA) makes it unlawful for an employer, “because of the … physical disability … of any person, … to discharge the person from employment … or to discriminate against the person … in terms, conditions, or privileges of employment.” (Gov. Code, § 12940, subd. (a); Castro-Ramirez, supra, 2 Cal.App.5th at p. 1036.) The pivot of the case is FEHA’s definition of disability. The Act explains that the phrase “‘physical disability’ … includes a perception … that the person is associated with a person who has, or is perceived to have’ a physical disability.” (§ 12926, subd. (o); Castro-Ramirez, supra, at p. 1036.) The full text the court quoted provides that the protected characteristics, including physical disability, “‘includes a perception that the person has any of those characteristics or that the person is associated with a person who has, or is perceived to have, any of those characteristics.’” (§ 12926, subd. (o); Castro-Ramirez, supra, at p. 1037, fn. 2.) From this, the court drew its central premise: “Accordingly, when FEHA forbids discrimination based on a disability, it also forbids discrimination based on a person’s association with another who has a disability.” (Id. at p. 1036.)

The driver and his son. Dependable Highway Express, Inc. (DHE) hired Luis Castro-Ramirez in December 2009 as a local truck driver working out of its Los Angeles terminal. (Castro-Ramirez, supra, 2 Cal.App.5th at p. 1032.) His son needs a kidney transplant and “has required daily home dialysis treatments for the last 15 years,” and plaintiff “is the only person in his household who knows how to operate the dialysis machine for his son.” (Id. at p. 1032.) The treatment was not flexible at the plaintiff’s convenience: the amount of time his son needed to be connected to the machine “varied between 10 and 12 hours,” and the start time “varied from between 7:00 p.m. and 12:00 a.m.,” depending on the son’s condition. (Id. at pp. 1033–1034.)

Years of accommodation. From the outset, plaintiff informed DHE of his daily dialysis obligations. (Castro-Ramirez, supra, 2 Cal.App.5th at p. 1032.) His supervisors Armando Gomez and Winston Bermudez worked with him for over three years; Bermudez “met plaintiff’s needs as often as he could by giving him a shift that enabled him to care for his son” and “never gave plaintiff a shift that began as late as noon.” (Id. at pp. 1032–1033.) Plaintiff’s typical schedule ran “from 9:00 or 10:00 a.m. until 7:00 or 8:00 p.m.” (Id. at p. 1033.) Throughout, “plaintiff performed satisfactorily with no problems.” (Ibid.)

The new supervisor. In March 2013, DHE promoted Bermudez and made Boldomero Munoz-Guillen (“Junior”) plaintiff’s supervisor. Bermudez “told Junior that plaintiff had special needs related to his disabled son and needed to leave early” and asked Junior to “‘work with’ plaintiff.” (Castro-Ramirez, supra, 2 Cal.App.5th at p. 1033.) When plaintiff complained that Junior was starting him later and later, Bermudez relayed the complaint; Junior said he “‘would work on that,’” but “Bermudez never reported plaintiff’s special needs to human resources.” (Id. at pp. 1033–1034.) About a week before the termination, a DHE customer e-mailed asking that plaintiff — its “‘regular drive[r]’” — make its 7:00 a.m. deliveries “as it ‘ha[d] always been done.’” Junior had told plaintiff the opposite — that the customer “did not like plaintiff’s work” — which the customer confirmed was “untrue.” (Id. at p. 1034.)

The firing. On April 22, 2013, plaintiff worked a shift starting at 11:55 a.m. without objection because it still let him be home in time, but told Junior: “‘Please, I need to have my job like always. I’ve always had help from everyone except you.’” (Castro-Ramirez, supra, 2 Cal.App.5th at p. 1034.) The next day, Junior assigned a noon shift on a longer route to Oxnard and back. Plaintiff explained he could not return in time to administer dialysis by 8:00 p.m. and asked for another route or the day off, reminding Junior that Bermudez had already explained his needs. Junior “laughed and said, ‘Winston [Bermudez] doesn’t work here anymore. Now it’s me,’” and fired him. (Id. at pp. 1034–1035.) On the day of the termination, “Junior scheduled at least eight other drivers to start shifts well before noon,” at times ranging from 4:54 a.m. to 10:54 a.m. (Id. at pp. 1034–1035.) DHE’s handbook authorized graduated discipline — “suspension without pay, discharge, counseling, and warning notices” — for refusing an assignment. (Id. at p. 1035.)

Procedural history

Plaintiff sued for disability discrimination, failure to prevent discrimination, retaliation, and wrongful termination in violation of public policy, among other claims. (Castro-Ramirez, supra, 2 Cal.App.5th at pp. 1031–1032.) The trial court (Hon. Richard L. Fruin, Jr.) granted DHE summary judgment, “concluding that there was no triable issue of material fact on any cause of action,” reasoning that at best the evidence showed Junior “was unwilling to provide accommodation to the same extent as plaintiff’s previous supervisor,” and that even on a prima facie case the proffered reason was not shown to be pretextual because “plaintiff worked nearly identical hours the previous day without objection.” (Id. at p. 1035.) The court awarded DHE $7,592.08 in costs and later denied plaintiff’s motion to tax them. (Ibid.) Plaintiff appealed both the judgment (No. B261165) and the costs order (No. B262524); the appeals were consolidated. (Ibid.)

The Court of Appeal first issued an opinion on April 4, 2016, which held that FEHA itself creates a duty to accommodate an employee associated with a disabled person. (Castro-Ramirez, supra, 2 Cal.App.5th at p. 1051 (dis. opn. of Grimes, J.).) DHE petitioned for rehearing; the court permitted limited supplemental briefing, and on August 29, 2016, issued this superseding opinion, which retreated from the accommodation holding and rested the reversal on associational discrimination and retaliation. (Id. at pp. 1037–1038, 1051–1052 (dis. opn. of Grimes, J.).) Justice Grimes dissented; the Supreme Court denied review on November 30, 2016.

Issue

Whether a nondisabled employee fired in connection with his caretaking obligations to a disabled relative may pursue an associational disability discrimination claim under FEHA — and, if so, whether the plaintiff raised triable issues of discriminatory motive, pretext, and protected activity sufficient to defeat summary judgment. The court framed “the proper inquiry” as: “Even if DHE had no separate duty under FEHA to provide plaintiff with reasonable accommodations for his son’s illness, was there sufficient evidence that discriminatory animus motivated Junior’s refusal to honor plaintiff’s scheduling request and his termination of plaintiff?” (Castro-Ramirez, supra, 2 Cal.App.5th at p. 1038.) The court expressly declined to decide “whether FEHA establishes a separate duty to reasonably accommodate employees who associate with a disabled person.” (Ibid.)

Holding

Reasoning

Association is itself a disability under FEHA’s text. The court grounded the associational claim in statutory construction. Reading section 12940, subdivision (a), together with section 12926, subdivision (o), the court reasoned that “association with a physically disabled person appears to be itself a disability under FEHA.” (Castro-Ramirez, supra, 2 Cal.App.5th at p. 1038.) Refusing to read subdivision (m)(1) “in isolation,” it construed the statutory scheme “together … in a manner that gives effect to each.” (Id. at pp. 1038–1039.) FEHA “creates an associational disability discrimination claim … by reading association with a physically disabled person (§ 12926, subd. (o)) into the Act where discrimination based on ‘physical disability’ appears (§ 12940, subd. (a)).” (Id. at p. 1039.)

The abandoned accommodation claim did not doom the discrimination claim. DHE argued the case was “fundamentally … a reasonable accommodation case” and that FEHA imposes no duty to accommodate associates of the disabled. (Castro-Ramirez, supra, 2 Cal.App.5th at p. 1037.) Plaintiff conceded he had abandoned the accommodation cause of action. The court agreed the accommodation ruling was “not at issue on appeal,” and declined to decide whether such a duty exists. (Id. at pp. 1037–1038.) But it held that abandonment “does not in itself mean he may not pursue his claim that he suffered discrimination based on associational disability.” (Id. at p. 1038.) Accommodation remained “relevant” and “significantly intertwined with the statutory prohibition against disability discrimination.” (Id. at p. 1039.)

State law, not federal, supplies the framework. DHE leaned on ADA precedent. The court acknowledged it “often look[s] to federal law interpreting the ADA when construing FEHA, particularly when the question involves parallel statutory language,” but stressed “the two statutory schemes are not coextensive.” (Castro-Ramirez, supra, 2 Cal.App.5th at pp. 1039–1040.) The Legislature declared that FEHA “provides protections independent from those in the [ADA]” and that the federal act “provides a floor of protection.” (§ 12926.1, subd. (a); id. at p. 1040.) Structurally, “the ADA does not define the term ‘disability’ itself as including association with the disabled,” treating associational discrimination instead as one form of disability-based discrimination. (Id. at p. 1040.) Because “the statutory language is not parallel,” the court would “part ways with federal case authority.” (Id. at p. 1040.) This is the holding’s analytic engine: FEHA “differs structurally from the ADA when defining associational disability causes of action.” (Id. at p. 1045.)

Rope and Larimer: the doctrinal line. The court built on Rope v. Auto-Chlor System of Washington, Inc. (2013) 220 Cal.App.4th 635, which found a viable associational discrimination claim where an employee was fired after announcing a plan to donate a kidney to his sister. (Castro-Ramirez, supra, 2 Cal.App.5th at pp. 1038–1039.) Rope, in turn, drew on Judge Posner’s opinion in Larimer v. International Business Machines Corp. (7th Cir. 2004) 370 F.3d 698, “the seminal authority” identifying three motive categories — “‘expense,’ ‘disability by association,’ and ‘distraction.’” (Id. at pp. 1041–1042.) The court agreed with Rope that “Larimer provides an illustrative, rather than an exhaustive, list,” the common thread being situations where “the ‘employer has a motive to discriminate against a nondisabled employee who is merely associated with a disabled person.’” (Id. at p. 1042.) Although the facts did “not fit neatly within one of the Larimer categories … a jury could reasonably infer the requisite discriminatory motive.” (Ibid.)

Triable issues of motive and pretext. The court catalogued the evidence supporting an inference of unlawful motive: Junior knew plaintiff needed to finish in time for dialysis; he scheduled a noon start “later than plaintiff had ever started before” despite “eight other shifts well before noon” being available; he gave a “false” explanation for denying the 7:00 a.m. route the customer had requested; and he fired plaintiff for a “one-time refusal” even though DHE’s policies “allowed for less severe disciplinary action than termination.” (Castro-Ramirez, supra, 2 Cal.App.5th at pp. 1042–1043.) One reasonable inference was that “Junior acted proactively to avoid the nuisance plaintiff’s association with his disabled son would cause Junior in the future,” such that the refusal-to-work reason “was a pretext.” (Id. at p. 1043.) The court rejected DHE’s reliance on the lack of a “‘set’ schedule, noting plaintiff “had a typical schedule” and that the dialysis timing was not “fully within his discretion” but “varied based on his son’s condition.” (Id. at pp. 1043–1044.) It distinguished Ennis and Magnus as poor-performance cases — here “there was no issue with plaintiff’s performance.” (Id. at p. 1045.)

Retaliation: opposition without legal buzzwords. Turning to section 12940, subdivision (h), the court reaffirmed that “protected conduct can take many forms” and that employees “need not explicitly and directly inform their employer that they believe the employer’s conduct was discriminatory.” (Castro-Ramirez, supra, 2 Cal.App.5th at p. 1046.) Drawing on Yanowitz and Miller, the court explained that the question “is not whether a formal accusation of discrimination is made but whether the employee’s communications … sufficiently convey the employee’s reasonable concerns that the employer has acted or is acting in an unlawful discriminatory manner.” (Id. at pp. 1046–1047.) Plaintiff’s repeated complaints to Bermudez and Junior — tied as they were to his son’s disability — could be found to be “opposition to the denial of an accommodation in his schedule” and “opposition to a practice he believed was unlawful.” (Id. at p. 1048.) Causation was satisfied by temporal proximity: the termination “came the month after his first complaint and on the heels of his last two complaints.” (Id. at pp. 1048–1049.)

Sidestepping Rope and AB 987. DHE argued, citing Rope, that “a mere request — or even repeated requests — for an accommodation, without more,” is not protected. (Castro-Ramirez, supra, 2 Cal.App.5th at p. 1049.) The court noted that Assembly Bill No. 987 superseded Rope on that point effective January 1, 2016, but declined to decide whether the amendment applies retroactively. (Id. at pp. 1049–1050.) Even assuming Rope still governed, it did not control: “Plaintiff here did more than simply request an accommodation,” and his “repeated complaints about the sudden changes to his schedule represented ‘some degree of opposition.’” (Id. at p. 1050.)

The dissent. Justice Grimes dissented on four grounds. Procedurally, she argued the majority decided an issue “not proposed or briefed by any party,” contrary to Government Code section 68081, and that the discrimination analysis “hinges entirely on … [Junior’s] failure to accommodate plaintiff’s request for a different shift.” (Castro-Ramirez, supra, 2 Cal.App.5th at pp. 1051, 1054 (dis. opn. of Grimes, J.).) Substantively, she saw “no reason to construe FEHA as departing from the ADA on this issue” and rejected the premise that “a person with no disability ipso facto becomes ‘disabled’ by association.” (Id. at pp. 1052, 1058.) On motive, she charged that the majority’s inference “depends on the principle the majority claims it is not deciding,” relying on Erdman v. Nationwide Ins. Co. for the proposition that “‘the association provision does not obligate employers to accommodate the schedule of an employee with a disabled relative.’” (Id. at pp. 1060, 1063.) And on retaliation, she contended that under the pre-AB 987 law in effect during plaintiff’s employment, “a mere request, or even repeated requests, for an accommodation, without more, did not constitute protected activity.” (Id. at p. 1063.)

Significance

Castro-Ramirez is the leading published California authority recognizing — through statutory construction — that FEHA’s associational disability protection reaches an employee fired in connection with caring for a disabled family member. It sits in a short doctrinal line: Rope first held FEHA states an associational claim, importing Larimer’s “expense,” “disability by association,” and “distraction” taxonomy; Castro-Ramirez extends that line into the scheduling and caretaking context and confirms the categories are “illustrative, rather than … exhaustive.” (Castro-Ramirez, supra, 2 Cal.App.5th at p. 1042.) Its most consequential move is doctrinal independence: by locating the protection in FEHA’s definition of “physical disability” (§ 12926, subd. (o)) rather than in a discrete associational-discrimination provision, the court positioned California law to diverge from restrictive ADA precedent like Erdman and Larimer that limit caretaker-schedule claims. (Id. at pp. 1040, 1045.)

The decision’s reach is bounded in important ways. The court expressly reserved whether FEHA imposes a freestanding duty to accommodate an employee’s association with a disabled person — the very question the dissent says the majority effectively answered. (Castro-Ramirez, supra, 2 Cal.App.5th at pp. 1038–1039, 1051–1052 (dis. opn. of Grimes, J.).) Practitioners should read it as a discrimination/pretext holding, not an accommodation holding. The opinion is also procedurally idiosyncratic: it superseded an earlier opinion that had squarely embraced the accommodation theory, and the Supreme Court denied review, leaving the narrower discrimination rationale as the published law.

Key quotes

“The very definition of a ‘physical disability’ embraces association with a physically disabled person. … Accordingly, when FEHA forbids discrimination based on a disability, it also forbids discrimination based on a person’s association with another who has a disability.” (Castro-Ramirez, supra, 2 Cal.App.5th at p. 1036.)

“In other words, plaintiff’s termination for refusal to work the shift was a pretext for Junior’s desire to be rid of someone whose disabled associate made Junior’s job harder.” (Id. at p. 1043.)

“He need not have used the terms ‘unlawful’ or ‘reasonable accommodation’ themselves. … plaintiff’s good faith belief that DHE was acting unlawfully was sufficient.” (Id. at p. 1048.)

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Practice pointer

Open questions

A freestanding duty to accommodate associates. The court “d[id] not decide whether FEHA establishes a separate duty to reasonably accommodate employees who associate with a disabled person,” observing only that “the accommodation issue is not settled” and “appears significantly intertwined” with the discrimination prohibition. (Castro-Ramirez, supra, 2 Cal.App.5th at pp. 1038–1039.) Whether subdivision (m) “may reasonably be interpreted to require accommodation based on the employee’s association with a physically disabled person” remains expressly reserved. (Id. at p. 1039.)

Retroactivity of Assembly Bill No. 987. The court stated it “need not decide whether Assembly Bill No. 987 applies in this case” — i.e., whether the 2016 amendment making accommodation requests protected activity reaches pre-2016 conduct — noting that Moore v. Regents of University of California had held it does not. (Castro-Ramirez, supra, 2 Cal.App.5th at pp. 1049–1050 & fn. 7.)

Whether the ADA itself creates a failure-to-accommodate claim for associates. The court noted it was “not tasked to decide whether either FEHA or the ADA creates a failure to accommodate cause of action based on associational disability.” (Castro-Ramirez, supra, 2 Cal.App.5th at p. 1040.)