Rope v. Auto-Chlor System of Washington, Inc.
FEHA reaches an employer that fires a worker to dodge the cost of his association with a disabled relative — the associational-discrimination decision that paved the way for Castro-Ramirez.
Rope v. Auto-Chlor System of Washington, Inc. (2013) 220 Cal.App.4th 635
Retaliation
Associational disability
FEHA (Gov. Code § 12940)
In brief. An employee whose nondisabled status barred direct-disability and retaliation theories nonetheless stated a FEHA claim by alleging that his employer fired him to avoid the expense of paid leave he would take to donate a kidney to his disabled sister. The Court of Appeal held that section 12940, subdivision (a), read with section 12926, subdivision (n), forbids discrimination because of an employee’s association with a disabled person, and that the pleaded facts supported a prima facie “expense” associational claim. (Rope, supra, 220 Cal.App.4th at pp. 656–658.) The court affirmed dismissal of every other count.
By Jonathan J. Delshad
Founder & Editor-in-Chief
Facts
The governing FEHA text is compact but pivotal. Government Code section 12940, subdivision (a), 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.” (Rope, supra, 220 Cal.App.4th at p. 655.) A companion definitional provision, section 12926, subdivision (n), supplies the associational reach: the prohibition “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.” (Ibid.) That single clause — “is associated with” — is the doctrinal fulcrum of the case.
The hiring and the donation plan. Scott Rope was hired as a branch manager on September 7, 2010. At hiring he told Auto-Chlor that he was scheduled to be an organ donor in February 2011 for his sister, who had suffered kidney failure and needed a transplant. (Id. at p. 642.) From October through December 2010 he kept human resources and managers informed that he would need recovery leave after the donation, and the employer knew his plan remained intact because he attended regular lunch-break doctor’s visits to monitor his health in preparation. (Ibid.)
The leave request and the statute on the horizon. In November 2010 Rope learned that the Michelle Maykin Memorial Donation Protection Act (DPA), Labor Code sections 1508–1513, would take effect January 1, 2011, entitling certain private employees to 30 days of paid organ-donation leave. (Id. at pp. 642–643.) He asked regional manager Michael Pruss for 30 days’ paid leave under the DPA, explaining it was a medical necessity; Pruss promised to “look into it,” and Rope’s repeated follow-up requests were ignored. (Id. at p. 643.) He also warned that, depending on recovery, he might later need additional accommodations. Human resources offered an unspecified amount of unpaid leave but never responded to the paid-leave requests. (Ibid.)
The termination. From September to December 2010 Rope received satisfactory reviews and posed no disciplinary problems. On December 30, 2010 — two days before the DPA became effective — he was fired, purportedly for poor performance. (Ibid.) He alleged the real reason was Auto-Chlor’s desire to avoid paying for his leave or accommodating his anticipated restrictions, and that the company knew he was associated with his physically disabled sister. He donated the kidney as planned in February 2011. (Ibid.)
Procedural history
Rope sued in August 2011 and, after a first demurrer, filed a first amended complaint (FAC) pleading seven counts: (1) DPA violation; (2) retaliation under Labor Code section 1102.5; (3) wrongful termination in violation of public policy; (4) PAGA; (5) FEHA associational discrimination (§ 12940, subd. (a); § 12926, former subd. (m), now (n)); (6) FEHA failure to maintain a discrimination-free environment (§ 12940, subd. (k)); and (7) FEHA retaliation (§ 12940, subd. (h)). (Id. at pp. 643–644.) The trial court sustained the demurrer with leave as to the third, fifth, and sixth counts, and without leave as to the first, second, fourth, and seventh. (Id. at p. 644.)
The operative second amended complaint (SAC) pleaded four counts: (1) wrongful termination in violation of public policy; (2) associational discrimination; (3) discrimination on the basis of actual or perceived physical disability; and (4) failure to maintain a discrimination-free environment. (Ibid.) The trial court sustained the demurrer to the SAC without leave to amend and dismissed. Rope appealed both rulings. (Ibid.)
Issue
The appeal posed several discrete sufficiency questions, but the case turns on three. First, whether the DPA — and the derivative Labor Code, PAGA, and FEHA-retaliation theories built on it — could reach a termination that occurred before the statute’s effective date. Second, whether Rope’s requests for and complaints about paid leave amounted to “protected activity” supporting FEHA retaliation under section 12940, subdivision (h). Third, and most consequentially, whether FEHA’s prohibition on disability discrimination extends to a nondisabled employee fired because of his association with a disabled relative, and whether Rope pleaded enough to state such an “expense”-theory associational claim. (Id. at pp. 645, 651–652, 655–658.)
Holding
The Court of Appeal affirmed in part and reversed in part. Affirmed (dismissals proper): the DPA count, because the statute applies prospectively only and the termination predated it (id. at pp. 646–648); the Labor Code section 1102.5 whistleblower count, because Rope complained only internally, not to a government agency (id. at pp. 648–650); the section 98.6 theory, forfeited and substantively derivative (id. at p. 650); the PAGA count, which required a viable underlying Labor Code violation (id. at pp. 650–651); the FEHA retaliation count, because requesting an accommodation is not “protected activity” (id. at pp. 651–654); and the actual-or-perceived-disability count, because Rope was not himself disabled or regarded as disabled (id. at pp. 659–660). Reversed (claims survive): FEHA associational disability discrimination (id. at pp. 655–658); FEHA failure to maintain a discrimination-free environment, as derivative of the surviving associational claim (id. at p. 660); and wrongful termination in violation of public policy, resting on the same FEHA policy (ibid.). The court expressly declined to decide the “distraction” theory of associational discrimination, resting only on the “expense” category. (Id. at p. 657 & fn. 13.)
Reasoning
The DPA cannot reach pre-effective-date conduct. The court began with the presumption that “[n]ew statutes are presumed to operate only prospectively absent some clear indication that the Legislature intended otherwise.” (Id. at p. 646, quoting Elsner v. Uveges (2004) 34 Cal.4th 915, 936.) Because the 2010 DPA “substantively changed, rather than merely clarified, prior law” — before January 2011 no private employer had to grant paid organ-donation leave — retroactive application would impose liability “for an action that was lawful when taken.” (Id. at p. 647.) Tellingly, when the Legislature did intend a clarification, it said so expressly: the 2011 DPA amendments were declared “declaratory of … existing law,” a contrast the court read against Rope. (Ibid. & fn. 3.) The court rejected Rope’s effort to treat the February 2011 leave date as operative, since the termination — the actionable conduct — occurred December 30, 2010, and Auto-Chlor was entitled to rely on the pre-DPA regime. (Id. at pp. 647–648.) The court likewise noted Rope was ineligible for FMLA or CFRA leave, having neither the requisite tenure nor a covered family relationship. (Id. at p. 648, fn. 4.)
Internal complaints do not trigger section 1102.5. The whistleblower statute, “[b]y its terms … provides limited protection only for disclosures ‘to a government or law enforcement agency.’” (Id. at p. 649.) Rope alleged only that he “complained to Auto-Chlor itself about its foot-dragging,” which “does not trigger whistleblower protection.” (Ibid.) The court declined to extend the “preemptive retaliation” theory of Lujan v. Minagar (2004) 124 Cal.App.4th 1040 and Steele v. Youthful Offender Parole Bd. (2008) 162 Cal.App.4th 1241, observing that those cases rested on broader statutory language (Lab. Code, § 6310) and on employers who feared the plaintiff would report an existing violation — neither present here. (Id. at pp. 649–650.) The section 98.6 theory was forfeited for lack of briefing and, in any event, only “prohibits terminations for conduct ‘otherwise protected by the Labor Code.’” (Id. at p. 650.) PAGA fell with the Labor Code claims, since “[r]ecovery of civil penalties under [PAGA] requires proof of a Labor Code violation,” and Rope conceded his PAGA count “would go away” absent a viable DPA claim. (Id. at pp. 650–651.)
Requesting an accommodation is not “protected activity.” The heart of the affirmed-retaliation analysis is the court’s refusal to equate accommodation requests with opposition. Applying Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, the court acknowledged that protected activity “may take many forms” and need not use “buzzwords,” but held that “a mere request — or even repeated requests — for an accommodation, without more,” is not protected activity. (Id. at pp. 652–653.) Protected conduct “demonstrate[s] some degree of opposition to or protest of the employer’s conduct or practices based on the employee’s reasonable belief that the employer’s action or practice is unlawful.” (Id. at p. 653.) The court warned that Rope’s reading “would significantly blur and perhaps obliterate the distinction between an action for failure to accommodate or engage in the interactive process and retaliation.” (Ibid., quoting Kelley v. Corrections Corp. of America (E.D.Cal. 2010) 750 F.Supp.2d 1132, 1144.) Temporal proximity to the DPA’s effective date could not rescue the claim: “a close temporal relationship does not change the nature of the employee’s activity in the first instance.” (Id. at pp. 653–654.)
Procedural objections to the new disability counts rejected. Before reaching the merits of the SAC’s FEHA counts, the court cleared two underbrush arguments. The newly added actual-disability count, though beyond the scope of the leave granted, was permissible because it “respond[ed] to the court’s reasoning for sustaining the earlier demurrer.” (Id. at p. 655.) And exhaustion was satisfied: Rope’s DFEH complaint checked the relevant boxes and alleged discrimination “on account of his association with his sister,” making the claims “like or reasonably related” to the administrative charge. (Id. at pp. 654–655.)
FEHA recognizes associational disability discrimination — the “expense” theory. The court grounded the associational claim in the statute itself: section 12926, subdivision (n), expressly defines the disability prohibition to “include[]” association with a disabled person, and FEHA “must be liberally construed.” (Id. at pp. 655–656.) Noting that associational disability discrimination “has been addressed only once, tangentially, by one published California case” before this one, the court turned to Judge Posner’s opinion in Larimer v. International Business Machines Corp. (7th Cir. 2004) 370 F.3d 698, “the seminal authority” identifying three associational scenarios — “expense,” “disability by association,” and “distraction.” (Id. at pp. 656–657.) Critically, the court confined itself to the “expense” category and declined the distraction theory: Rope’s allegations of exemplary performance “belied” any claim that he was inattentive at work. (Id. at p. 657 & fn. 13.) Because FEHA “afford[s] additional protections” beyond the ADA, the court refused to let Larimer‘s “narrow example” cabin the state-law claim. (Id. at p. 657.) On the facts, the reasonable inference was that “Auto-Chlor acted preemptively to avoid an expense stemming from Rope’s association with his physically disabled sister” — the DPA leave “was intended for the very purpose of facilitating the donation of vital organs to individuals who are indisputably physically disabled.” (Id. at pp. 658–659.) The court was careful to disclaim a “siren song” for plaintiffs who manufacture associations: under Posner’s Dewitt concurrence, an employer is liable “even if the motivation is purely monetary,” but “if the disability plays no role in the employer’s decision … then there is no disability discrimination.” (Id. at pp. 658–659.)
But Rope was not himself disabled or “regarded as” disabled. The direct-disability count failed because “[i]t is not enough merely to allege a physical disability”; Rope alleged only that he anticipated becoming disabled after surgery, and the “regarded as” definition reaches only those with a present condition or one that “may become a physical disability.” (Id. at pp. 659–660.) “As far as Auto-Chlor was concerned, Rope was a nondisabled employee complaining that he would not be paid for taking more leave.” (Id. at p. 659.)
The derivative counts follow. The section 12940, subdivision (k), failure-to-prevent count survived because such a claim “is dependent on a viable claim for discrimination,” and the associational claim supplied one. (Id. at p. 660.) The public-policy tort survived for the same reason — FEHA’s anti-disability-discrimination policy is “sufficiently substantial and fundamental” — “[f]or the reasons the trial court erred in sustaining the demurrer to the associational disability discrimination claim.” (Ibid.)
Significance
The first square California holding on associational disability discrimination. Rope is the decision that put associational disability discrimination on the California map. The court itself observed the issue had been touched only “tangentially” once before. (Id. at p. 656.) By anchoring the claim in the text of section 12926, subdivision (n), and importing Larimer‘s “expense” framework while refusing to let the ADA cap FEHA’s reach, Rope supplied the analytic scaffolding later courts would build on.
Precursor to Castro-Ramirez. Three years later, the same district decided Castro-Ramirez v. Dependable Highway Express, Inc. (2016) 246 Cal.App.4th 180, which relied on Rope and pushed further — suggesting (in dicta the court flagged as unsettled) that FEHA may impose a duty to reasonably accommodate an employee’s association with a disabled person. That later development matters precisely because Rope did not go there: Rope held only that FEHA forbids discrimination because of an association; it did not hold that FEHA independently requires accommodation of an association. The two cases together frame the open accommodation question that practitioners still litigate.
The AB 987 caveat. The conduct here occurred in 2010, and the court adjudicated FEHA as it then read. The Legislature’s later amendment by Assembly Bill 987 (effective January 1, 2015) clarified that requesting accommodation is itself protected from retaliation — a change that postdates both the conduct and this opinion. Rope‘s holding that an accommodation request is not “protected activity” must therefore be read as a statement of pre-2015 law; AB 987 supersedes that reasoning prospectively for retaliation purposes. The associational-discrimination holding, by contrast, is unaffected by AB 987.
Limits. Rope is a pleading-stage decision applying demurrer standards; it establishes only that the SAC alleged “minimally sufficient facts.” (Id. at p. 658.) It rests solely on the “expense” theory, expressly leaving “distraction” undecided, and it does not disturb the rule that the associated relative must be disabled and the disability must be a substantial motivating factor. The court’s “siren song” caveat signals judicial wariness of opportunistic associational claims. (Id. at pp. 658–659.)
Key quotes
“In our view, Rope has pleaded minimally sufficient facts to state a prima facie ‘expense’ association claim under FEHA … . The reasonable inference is that Auto-Chlor acted preemptively to avoid an expense stemming from Rope’s association with his physically disabled sister.” (Rope, supra, 220 Cal.App.4th at p. 658.)
“[W]e find no support in the regulations or case law for the proposition that … a mere request — or even repeated requests — for an accommodation, without more, constitutes a protected activity sufficient to support a claim for retaliation … .” (Rope, supra, 220 Cal.App.4th at p. 652.)
“[A]n employer who discriminates against an employee because of the latter’s association with a disabled person is liable even if the motivation is purely monetary. But if the disability plays no role in the employer’s decision … then there is no disability discrimination.” (Id. at p. 659.)
Practice pointer
When a worker is fired in proximity to an event that will make a disabled relative expensive to the employer — a costly surgery, a benefits-triggering leave, a dependent’s chronic care — plead the FEHA associational-discrimination count under section 12940, subdivision (a), and section 12926, subdivision (n), and frame it through Larimer‘s “expense” lens: identify the relative’s disability, the anticipated cost, the employer’s knowledge, and the temporal link. Do not rely on a retaliation theory built on accommodation requests for pre-2015 conduct — Rope forecloses it — but remember AB 987 changed that rule going forward. And always pair the associational count with the derivative section 12940, subdivision (k), failure-to-prevent count and the Tameny public-policy tort, which rise and fall with it.
Open questions
Does FEHA require accommodation of an association? Rope held only that FEHA forbids associational discrimination; it did not decide whether an employer must accommodate an employee’s association with a disabled person. Castro-Ramirez later raised that possibility without squarely resolving it, and the question remains genuinely open. (See Rope, supra, 220 Cal.App.4th at p. 657 [confining analysis to the “expense” category].)
How far does the “distraction” theory reach in California? The court expressly declined to decide whether a “distraction”-based associational claim lies under FEHA, resting only on “expense.” (Id. at p. 657 & fn. 13.) The contours of “distraction” and “disability by association” under state law are unsettled.
Post-conduct statutory change. Because AB 987 (eff. Jan. 1, 2015) postdates both the 2010 termination and this 2013 opinion, the precise interaction between Rope‘s “accommodation request is not protected activity” holding and the amended retaliation provisions is a live question for any case spanning the statutory transition.