Lin v. Kaiser Foundation Hospitals

Facts

The statutory framework. The California Fair Employment and Housing Act (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); Lin, supra, 88 Cal.App.5th at p. 721.) Two related provisions drive the accommodation claims. Subdivision (m)(1) requires an employer “to make reasonable accommodation for the known physical or mental disability of an applicant or employee.” (Gov. Code, § 12940, subd. (m)(1); Lin, supra, at p. 728.) Subdivision (n) separately requires the employer “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 reasonable accommodation by an employee or applicant with a known physical or mental disability.” (Gov. Code, § 12940, subd. (n); Lin, supra, at p. 728.) And subdivision (m)(2) makes it unlawful “to ‘retaliate or otherwise discriminate against a person for requesting accommodation [for a disability], regardless of whether the request was granted.’” (Gov. Code, § 12940, subd. (m)(2); Lin, supra, at p. 727.)

A long record of positive reviews. Kaiser hired Suchin I. Lin as a data management associate in June 1999. (Lin, supra, 88 Cal.App.5th at p. 716.) From 1999 to 2016 she was repeatedly promoted or transferred, culminating in a position as an IT engineer, and “[d]uring this period, Lin’s managers evaluated her performance positively.” (Ibid.) In May 2017 she became a software quality assurance associate engineer in the innovation and transformation (I&T) department, supervised by Sridhar Manne. (Ibid.) For 2017, Manne gave Lin and each of her four teammates the same overall rating of “Successful Performance,” rating Lin “Excellent” in subcategories including meeting “timeframes” and operating “efficiently,” and again rated her successful at her 2018 midyear evaluation. (Ibid.)

Selection for the layoff—before the disability. In December 2018, Kaiser began planning economically driven layoffs through a “Reduction in Force” or “RIF.” (Lin, supra, 88 Cal.App.5th at p. 716.) I&T executive director Wilson Henriquez declared that on or about December 18, 2018, he decided to eliminate Lin’s position based on earlier discussions with Manne and Monroe “about Lin’s performance issues in 2018.” (Ibid.) The court flagged that “there is at least ambiguity in the record about whether these conversations actually took place,” because “[t]he contemporaneous documentary record does not reflect these concerns about Lin’s performance.” (Id. at p. 717.)

The injury and the accommodation requests. On January 7, 2019, Lin fell at work and injured her left shoulder; a doctor placed her on modified duty with restrictions limiting use of her left arm. (Lin, supra, 88 Cal.App.5th at p. 717.) She informed Manne, telling him on January 9 that she could not move her left arm “at all” and might need surgery, and on January 21 sent a report extending modified duty and “requiring Lin to attend medical and physical therapy visits.” (Ibid.) When a workers’ compensation examiner asked whether he could accommodate the restrictions, Manne wrote: “Yes I would be able to accommodate the modified duty. … Once she is back, I will be assigning her with lighter tasks.” (Ibid.) But “Manne never assigned her lighter tasks or discussed the possibility of modifying her assignments with her.” (Ibid.)

The newly negative ratings. On January 29, 2019—three weeks after notice of the injury—Manne told human resources of an issue with the quality of Lin’s work “at least in part due to Lin’s ‘slow delivery,’” and West’s notes recorded that Lin was on modified duty with the annotation “slower typing?”; Lin later testified her injury caused her to type more slowly. (Lin, supra, 88 Cal.App.5th at p. 717.) The same day, Henriquez asked Manne to rate the team’s members; Manne gave Lin an aggregate rating of “nine out of 20,” while rating each teammate “16 or above.” (Id. at pp. 717–718.) Henriquez testified he sought the information to “‘compare’” the group and ensure “‘it wasn’t an unjust termination … layoff.’” (Id. at p. 718.) On February 27, Manne criticized Lin’s “pace of execution,” placed her on an action plan, and—per Lin’s testimony—asked “‘why are you seeing the doctors,’” pressuring her to work unpaid overtime even after she said she “‘need[ed] help.’” (Id. at pp. 718–719.) Kaiser provided RIF notice to the other employees on April 16, 2019, and on April 24 notified Lin her position was eliminated, effective June 23. (Id. at p. 719.)

Procedural history

Lin filed five FEHA causes of action—disability discrimination; retaliation for requesting accommodations and opposing forbidden practices; failure to prevent discrimination and retaliation; failure to accommodate; and failure to engage in the interactive process—plus wrongful termination in violation of public policy and intentional infliction of emotional distress. (Lin, supra, 88 Cal.App.5th at p. 719.) Kaiser moved for summary judgment, arguing the discrimination and retaliation claims failed because Henriquez decided to eliminate Lin’s position in December 2018, “before Lin sustained her disability,” and that the accommodation claims failed because “Kaiser had granted every accommodation Lin requested.” (Id. at pp. 719–720.) The trial court (Hon. Barbara A. Meiers) granted summary judgment in its entirety, finding the termination decision “‘was made before her disability was made known’” and that postdisability discussions were “‘pro forma,’” and noting “‘it was undisputed that all accommodations sought were granted.’” (Id. at p. 720.) Lin timely appealed. The Court of Appeal, Second Appellate District, Division Four, reversed in a unanimous opinion by Justice Daum (a Superior Court judge sitting by assignment), with Currey, Acting P. J., and Collins, J., concurring. (Id. at pp. 716, 729.)

Issue

Whether the trial court erred in granting Kaiser summary judgment where Lin was tentatively selected for layoff before her disability, but the final decision to terminate her came months after she became disabled. On the accommodation claims, the precise question was whether an employer that has “granted every accommodation Lin requested” can nonetheless face liability for failing to accommodate and failing to engage in the interactive process. The court framed “[t]he critical question” on the discrimination claim as whether the 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 was based, at least in substantial part, on Lin’s disability.” (Lin, supra, 88 Cal.App.5th at p. 723.)

Holding

Reasoning

De novo review, evidence in the plaintiff’s favor. The court reviewed the record de novo, asking “‘whether the defendant … 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 … such that the defendant is entitled to judgment as a matter of law.’” (Lin, supra, 88 Cal.App.5th at p. 721, quoting Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 334.) It viewed “the evidence in the light most favorable to the nonmoving party, drawing all reasonable inferences in that party’s favor.” (Ibid.) That posture proved decisive: at several turns the court acknowledged the record supported inferences in Kaiser’s favor but held it was “required to draw all competing reasonable inferences in Lin’s favor.” (Id. at p. 725.)

The three FEHA principles framing the discrimination claim. The court identified three doctrines as “particularly significant.” First, where the evidence is circumstantial, California applies the three-stage McDonnell Douglas burden-shifting test, which ends with the plaintiff’s burden “‘to attack the employer’s proffered reasons as pretexts for discrimination, or to offer any other evidence of discriminatory motive,’” and under which “‘[i]nvocation of a right to downsize does not resolve whether the employer had a discriminatory motive.’” (Lin, supra, 88 Cal.App.5th at pp. 721–722, quoting Guz, supra, 24 Cal.4th at pp. 356, 358.) Second, under Harris v. City of Santa Monica (2013) 56 Cal.4th 203, a mixed-motive plaintiff “must show only that her disability was a ‘substantial motivating factor,’” so that the claim survives summary judgment even if “the employer’s professed legitimate reason has not been disputed.” (Lin, supra, at pp. 722–723.) Third, under the “‘cat’s paw’” doctrine, “‘showing 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.’” (Id. at p. 723, quoting DeJung v. Superior Court (2008) 169 Cal.App.4th 533, 551.)

The pre-disability selection was not dispositive. Kaiser’s central argument was that Henriquez decided to eliminate Lin’s position in December 2018, before her injury. The court agreed that placing Lin on the “initial RIF list for termination in December 2018—before Lin became disabled—could not have been unlawful disability discrimination.” (Lin, supra, 88 Cal.App.5th at p. 723.) But “Kaiser did not actually eliminate Lin’s position … until April 2019—months after Kaiser became aware of Lin’s disability.” (Ibid.) If discrimination became a substantial motivating factor between December 2018 and April 2019, “the fact that she was originally placed on the list for a layoff is not decisive.” (Ibid.)

A jury could find the layoff selection was tentative. The record showed the December list “was not set in stone”: it shrank from 31 names to the 17 ultimately laid off, and Kaiser conceded it “averted layoffs of employees targeted by its initial RIF plan ‘“because another way was found to cut costs.”’” (Lin, supra, 88 Cal.App.5th at pp. 723–724.) “Even more important,” after the disability Kaiser “considered factors directly related to employee performance,” soliciting Manne’s January 29 ratings; Henriquez “admitted … he asked for, obtained, and relied on Manne’s opinion concerning Lin ‘in terms of the reduction in force,’” and sought the data to ensure “‘it wasn’t an unjust termination [or layoff].’” (Id. at p. 724.) The “ambiguity” surrounding the original selection—Monroe could not recall the alleged performance discussions, and Kaiser produced no corroboration—supported an inference that Henriquez “was open to removing Lin from the RIF list.” (Ibid.) Although Kaiser characterized its postdisability assessments as “‘pro forma’” and “‘due diligence,’” the court held those inferences were “not determinative” in the summary-judgment posture, because a jury “could readily conclude … Kaiser did so for a reason.” (Id. at pp. 724–725.)

A jury could find disability substantially motivated the termination. Before her disability, “neither Manne nor any prior supervisor gave her a negative performance evaluation,” and across “more than 15 years” her reviews were “successful.” (Lin, supra, 88 Cal.App.5th at p. 726.) “After Lin’s disability, however, Manne judged Lin’s performance much more harshly,” rating her “9 out of 20” against teammates rated “16 or above.” (Ibid.) The timing was telling: within weeks of learning of the injury, Manne expressed intent to assign “lighter tasks”—“supporting a reasonable inference that he believed her disability prevented her from handling her usual workload”—then complained of her “‘slow delivery’” and slow typing and tied his criticism to “her time spent at medical appointments.” (Ibid.) Because Manne’s tainted evaluations reached Henriquez, “who had decision-making authority,” the cat’s-paw theory survived: a jury could find “Lin’s disability was at least a substantial motivating factor for her termination,” a “sufficient finding to subject Kaiser to liability.” (Id. at pp. 726–727.)

Retaliation for requesting accommodation—even when granted. Turning to section 12940, subdivision (m)(2), the court emphasized that FEHA forbids retaliation “‘for requesting accommodation … regardless of whether the request was granted.’” (Lin, supra, 88 Cal.App.5th at p. 727.) A jury could find Manne “was troubled by the need to provide the requested accommodations,” that “resentment over accommodations affected his negative ratings,” and that those ratings in turn drove the termination—stating a triable section 12940, subdivision (m)(2) violation. (Ibid.) The derivative claims (failure to prevent, wrongful termination, IIED) rose and fell with these claims and were likewise reinstated. (Id. at pp. 727–728.)

The core move: granting each request is not necessarily enough. On the failure-to-accommodate and interactive-process claims, the court rejected the premise that the trial court had accepted—that granting every requested accommodation ends the inquiry. Setting out subdivisions (m)(1) and (n), the court held “it is not necessarily sufficient for an employer merely to grant the employee each accommodation she requests.” (Lin, supra, 88 Cal.App.5th at p. 728.) Quoting Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1013, it explained that “‘the 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.’” (Lin, supra, at p. 728.) Put differently, “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,” citing the regulation requiring an employer “‘to consider any and all reasonable accommodations of which it is aware.’” (Ibid., quoting Cal. Code Regs., tit. 2, § 11068, subd. (e).) Applied to the record: although Kaiser granted each requested accommodation, “through Manne, Kaiser knew of—but failed to discuss or provide—an additional reasonable accommodation that Lin needed, namely assigning Lin ‘lighter tasks.’” (Id. at pp. 728–729.) Manne himself had contemplated that accommodation, yet on Lin’s return she “was not assigned lighter tasks, but instead was subjected to increased criticism”; a jury could find Manne “was aware that Lin’s initial accommodations were failing and further accommodation was needed,” triggering the continuing duties. (Id. at p. 729.) The court distinguished Kaiser’s authorities—Doe v. Department of Corrections & Rehabilitation and King v. United Parcel Service, Inc.—as cases where the employee “failed to provide … sufficient information” or “failed to communicate his disability-related distress.” (Id. at p. 729, fn. 5.) Decisively, “Kaiser does not contend that it discharged these duties or that assigning Lin lighter tasks would have been unreasonable.” (Id. at p. 729.)

Significance

Lin is a clean, citable published statement of two propositions that plaintiff-side practitioners frequently confront. First, on the failure-to-accommodate and interactive-process side, it forecloses the common defense argument—accepted by the trial court here—that an employer’s liability is extinguished simply because it “granted every accommodation [the employee] requested.” (Lin, supra, 88 Cal.App.5th at p. 720.) Building on Scotch and the FEHA regulations, the court confirms the interactive-process duty is continuing and that an employer must consider a known-but-unrequested accommodation. (Id. at pp. 728–729.) Where prior authority such as Scotch stated the principle in dicta or in a different factual setting, Lin applies it squarely to defeat summary judgment on a record where the supervisor himself had identified the unprovided accommodation.

Second, on the discrimination side, Lin is a useful “timing” case: a pre-disability tentative layoff selection does not immunize an employer where the final decision is made post-disability and is arguably tainted by a biased intermediary. Combining Harris’s substantial-motivating-factor standard with the cat’s-paw doctrine of DeJung, the court shows how a supervisor’s newly negative, disability-correlated evaluations can carry a discrimination claim past summary judgment even when the ultimate decisionmaker is not himself alleged to harbor animus. (Id. at pp. 723, 726–727.) The decision’s reach is bounded by its procedural posture—it decides only that triable issues exist, expressly reserving whether Kaiser can establish a same-decision defense at trial. (Id. at p. 722, fn. 3.)

Key quotes

“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.” (Lin, supra, 88 Cal.App.5th at p. 728.)

“[W]hile 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.” (Id. at p. 728.)

“Although Kaiser granted Lin each accommodation she requested, the record contains evidence that through Manne, Kaiser knew of—but failed to discuss or provide—an additional reasonable accommodation that Lin needed, namely assigning Lin ‘lighter tasks.’” (Id. at pp. 728–729.)

Read the full opinion (official slip opinion, PDF) →

Practice pointer

Open questions

The direct-evidence standard. Lin argued that because she produced “direct and not merely circumstantial evidence,” the McDonnell Douglas test should not apply and her summary-judgment burden should be “less onerous.” The court “need not and [did] not address this contention,” finding triable issues “even under the more burdensome McDonnell Douglas test.” (Lin, supra, 88 Cal.App.5th at p. 721, fn. 2.)

The same-decision defense. The court “express[ed] no opinion as to whether Kaiser can make such a showing at trial”—i.e., that it would have made the same decision regardless of any discriminatory motive—“or what such a showing would mean for the ultimate relief available to Lin.” (Lin, supra, 88 Cal.App.5th at p. 722, fn. 3.)

The alternative retaliation theory. Having sustained the retaliation claim under section 12940, subdivision (m)(2), the court “need not address Lin’s alternative theory … that Kaiser retaliated against her for opposing practices forbidden under FEHA” under subdivision (h). (Lin, supra, 88 Cal.App.5th at p. 727, fn. 4.)