Zamora v. Security Industry Specialists, Inc.

Facts

The FEHA makes it an unlawful employment practice to discharge or discriminate against an employee in the “terms, conditions, or privileges of employment” because of physical disability (Gov. Code, § 12940, subd. (a)), though it “does not prohibit an employer from … discharging an employee with a physical or mental disability” who “is unable to perform the employee’s essential duties even with reasonable accommodations.” (Zamora v. Security Industry Specialists, Inc. (2021) 71 Cal.App.5th 1, 29–30, quoting § 12940, subd. (a)(1).) Two companion duties frame the case: the duty to make reasonable accommodation for a known disability (§ 12940, subd. (m)(1)) and the duty “to engage in a timely, good faith, interactive process” to identify effective accommodations (§ 12940, subd. (n)) — “separate, independent duties” under the statute. (Id. at p. 30.)

Security Industry Specialists (SIS) provided security staffing to Apple and other technology companies. It hired David Zamora on May 26, 2010, as a “standard deployment field supervisor” at Apple’s Cupertino campus — a physically demanding job Zamora described as requiring four to six hours of walking and seven hours of standing a day, climbing (including onto the roof), stooping, kneeling, and lifting up to 50 pounds. (Zamora, supra, 71 Cal.App.5th at p. 17.) Eight days after he was hired, while running to answer a medical call, Zamora tripped over a curb, twisted his left knee, and “immediately experienced severe pain.” His watch commander, Jim Mazon, witnessed the incident but neither reported the injury, as company policy required, nor told Zamora to report it. (Ibid.) Zamora worked in pain every day until November 17, 2010, waiting until his probationary period ended and health insurance vested before seeing a doctor; on October 14, 2010, an orthopedic surgeon diagnosed a torn meniscus and told him he needed arthroscopic surgery. (Id. at pp. 17–18.) Zamora formally reported the injury the next day; SIS fired Mazon days later, in part for failing to report it. Zamora claims that between mid-October and mid-November 2010 he asked for work involving less standing, consistent with his restrictions, and was told there was no other work for him. (Id. at p. 18.)

Zamora stopped working November 17, 2010, when a clinic physician took him off work and prescribed modified duty — “Mostly Seated Work,” no lifting over five pounds — that the record never shows SIS provided. (Zamora, supra, 71 Cal.App.5th at pp. 18–19.) The workers’ compensation insurer, suspicious of the late report and a prior injury to the same knee, investigated before accepting the claim in early 2011; SIS, atypically, continued Zamora’s full salary from mid-November 2010 to mid-March 2011. (Id. at pp. 19–20.) Then came the fact that would shadow the case: on March 25, 2011, SIS paid Zamora $2,166.67 in salary for March 1 through 15 — a period the insurer had already covered with temporary disability. SIS first blamed Zamora for misrepresenting his pay status, then determined the double payment was its own human resources manager’s error. (Id. at p. 20.) Co-president, CFO, and general counsel Thomas Seltz decided Zamora would be “disrespecting” the company if he did not repay it, and that any new position was conditioned on repayment. Zamora denied anyone ever asked him for the money, and he never repaid it. (Ibid.)

Dr. Kale performed arthroscopic surgery on May 18, 2011. On June 1, 2011, site manager Marty Vaughn e-mailed the vice-president of operations, Dave Harville, that he did not know if he had a “Supervisor position available” — and asked: “If we termed him, would he still have to pay back the amount?” (Zamora, supra, 71 Cal.App.5th at pp. 20–21.) On June 29, 2011, Dr. Kale released Zamora to modified work — keyboarding, supervising others performing physical tasks, driving, sitting up to eight hours. Human resources manager Michelle Ortiz and Vaughn proposed a temporary administrative-supervisor position at the same salary, with training; Harville responded that any return “is contingent upon repayment” of the overpayment and that SIS should “be prepared to separate him” if he refused; Ortiz drafted (but the record never shows SIS sent) an offer letter conditioning reinstatement on repayment. (Id. at p. 21.) In late July, Dr. Kale extended the leave six more weeks. (Id. at p. 22.)

In August or September 2011, Apple announced a $7 million cut to its SIS budget, prompting a roughly 10 percent reduction in force: 48 employees nationwide, 14 at Zamora’s site, including four of the site’s 19 supervisor positions. Vaughn and four watch commanders scored the supervisors in seven merit categories; Zamora ranked 16th of 19 and was selected. The evaluators understood they could not consider his disability or workers’ compensation claim, and gave him a “high score” of four for availability. (Zamora, supra, 71 Cal.App.5th at p. 22.) On September 12, 2011, Dr. Kale released Zamora to modified duty starting October 3, 2011. In September, Seltz told SIS’s recruiter that Zamora could be “rehired” as long as he reimbursed the company. On September 29, SIS mailed the layoff letter, effective October 10, stating the decision “was not prompted by” and was not “in any way related to” his performance; the next day, after a fall, Dr. Kale rescinded the release and extended disability by two weeks. (Id. at pp. 22–23.) Meanwhile, SIS found other positions for two supervisors — Murillo and Lopez — who had ranked lower than Zamora, demoting them to patrol officers rather than laying them off. On October 1, Harville circulated a vacant corporate-driver position at eBay; the recruiter suggested Zamora “would be great” and could interview Monday. The record does not reveal what happened. (Id. at p. 23.) SIS’s October 13 letter cited Zamora’s “lack of attendance and no correspondence,” demanded return of uniforms and immediate payment of an unspecified amount on pain of collection, and never explained the overpayment. (Id. at pp. 23–24.) SIS’s termination form stated Zamora was not eligible for rehire because he “must reimburse SIS for extra wages”; weeks after the termination, a senior human resources manager e-mailed that Zamora was “ripping off” SIS. (Id. at pp. 53, 62.) Zamora’s condition did not become permanent and stationary until November 2012; he settled his workers’ compensation claim in February 2013 and received a right-to-sue letter from the DFEH in October 2012. (Id. at pp. 24–25.)

Procedural history

Zamora’s October 2012 complaint pleaded nine causes of action: five under the FEHA — disability discrimination (§ 12940, subd. (a)), failure to accommodate (§ 12940, subd. (m)), failure to engage in the interactive process (§ 12940, subd. (n)), retaliation (§ 12940, subd. (h)), and wrongful termination — plus common law wrongful termination in violation of public policy, statutory wrongful termination under Labor Code section 132a, defamation, and false light. (Zamora, supra, 71 Cal.App.5th at p. 25.) After demurrer and anti-SLAPP practice eliminated the false-light claim, SIS moved in June 2015 for summary judgment or adjudication on the remaining eight. (Id. at pp. 25–26.)

The trial court granted summary adjudication of the disability discrimination, retaliation, defamation, and all three wrongful termination claims, but denied it as to failure to accommodate and failure to engage in the interactive process, finding a triable issue whether Zamora had given notice of his disability and desire for accommodation. (Zamora, supra, 71 Cal.App.5th at pp. 26–28.) On the discrimination claim, the court found triable issues about the essential functions of the job, but held the prima facie case failed because Zamora had not shown that Murillo and Lopez “were not members of the same protected group (i.e., that they had no disabilities)”; alternatively, it found the RIF a legitimate reason and Zamora’s pretext evidence insufficient, holding “as a matter of law, the mere timing of an adverse employment action is insufficient” and that the retention of the two lower-ranked supervisors, while it “does cast some doubt on SIS’s reason,” was “insufficient on its own.” (Id. at p. 27.) The parties stipulated to dismiss the two surviving claims without prejudice, and judgment was entered for SIS in July 2016. (Id. at p. 28.) The Sixth District reversed with directions to deny summary adjudication of the disability discrimination, failure-to-accommodate, interactive-process, FEHA wrongful termination, and common law wrongful termination claims, while affirming summary adjudication of the retaliation, Labor Code section 132a, and defamation claims; the opinion, filed September 30, 2021, was ordered published October 28, 2021. (Id. at pp. 67–68.)

Issue

Four questions did the work. First, was there direct evidence that the layoff was motivated by disability, taking the case outside McDonnell Douglas? (Zamora, supra, 71 Cal.App.5th at pp. 34–37.) Second, on the prima facie case: could Zamora show he was able to perform the essential duties of a job — including a vacant one — with or without reasonable accommodation, and did the trial court err in demanding proof that the retained lower-ranked supervisors were outside his protected class? (Id. at pp. 37–54.) Third, did SIS’s reduction-in-force showing establish a legitimate, nondiscriminatory reason where it never explained why Murillo and Lopez were retained and Zamora was released — and did Zamora’s evidence of timing, failed accommodation, and the overpayment campaign amount to substantial evidence of pretext or discriminatory animus? (Id. at pp. 54–62.) Fourth, was Zamora’s 2011 request for accommodation “protected activity” supporting a FEHA retaliation claim, given that the Legislature did not add section 12940, subdivision (m)(2), until 2015? (Id. at pp. 63–67.)

Holding

Reasoning

The recalibrated framework: what a moving employer must show. The court’s doctrinal platform is the fullest recent statement of how McDonnell Douglas operates on a defense motion. The three-stage test, adopted through Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354–355, “was originally developed for use at trial … not in summary judgment proceedings,” so on a motion the burdens are “altered”: the “employer, as the moving party, has the initial burden to present admissible evidence showing either that one or more elements of plaintiff’s prima facie case is lacking or that the adverse employment action was based upon legitimate, nondiscriminatory factors.” (Zamora, supra, 71 Cal.App.5th at p. 32, quoting Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 343–344, and Hicks v. KNTV Television, Inc. (2008) 160 Cal.App.4th 994, 1003.) “[F]rom commencement to conclusion, the party moving for summary [adjudication] bears the burden of persuasion.” (Ibid., quoting Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) And because employment cases turn on intent and motive — “issues not determinable on paper” — they “are rarely appropriate for disposition on summary judgment, however liberalized [summary judgment standards may] be.” (Id. at p. 33, quoting Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 286.)

Disability discrimination is structurally different. Drawing on Wallace v. County of Stanislaus (2016) 245 Cal.App.4th 109, the court emphasized that disability claims are “fundamentally different” from other section 12940(a) claims: pretext fights over motivation appear less often, and the Legislature’s 2000 amendments protect employees “from an employer’s erroneous or mistaken beliefs about the employee’s physical condition.” (Zamora, supra, 71 Cal.App.5th at p. 33, quoting Wallace, at pp. 115, 122.) “California law does not require an employee with an actual or perceived disability to prove that the employer’s adverse employment action was motivated by animosity or ill will”; the Legislature “decided that the financial consequences of an employer’s mistaken belief that an employee is unable to safely perform a job’s essential functions should be borne by the employer, not the employee, even if the employer’s mistake was reasonable and made in good faith.” (Ibid., quoting Wallace, at p. 115.) Courts “should not automatically apply principles related to the McDonnell Douglas test to disability discrimination cases” but should first ask whether there is direct evidence that the motive was the employee’s condition. (Id. at p. 35, quoting Wallace, at p. 123.)

No direct evidence here — Zamora’s showing was circumstantial. Measuring Zamora’s five proffered facts (the unreported injury, denied modified-work requests, non-communication about modified work, the “lack of attendance” letter, and decisionmaker knowledge) against Wallace (employer admitted it removed a deputy because of his restrictions), Glynn v. Superior Court (2019) 42 Cal.App.5th 47 (employee terminated because an HR employee mistakenly believed him totally disabled), and Schnidrig v. Columbia Machine, Inc. (9th Cir. 1996) 80 F.3d 1406 (board notes documenting a preference for a younger hire), the court held: “This is not direct evidence.” The facts were “at best circumstantial, requiring us to infer that SIS had a discriminatory motive,” so McDonnell Douglas governed. (Zamora, supra, 71 Cal.App.5th at p. 37.)

Element two: the accommodation and interactive-process duties live inside the discrimination claim. The prima facie elements of disparate-treatment disability discrimination are disability, ability to “perform the essential duties of a job with or without reasonable accommodations,” and adverse action because of the disability — a burden that “is not onerous.” (Zamora, supra, 71 Cal.App.5th at pp. 31, 37–38, citing Glynn, supra, 42 Cal.App.5th at p. 53, fn. 1, and Reid v. Google, Inc. (2010) 50 Cal.4th 512, 520, fn. 2.) Although the accommodation and interactive-process causes of action had been dismissed by stipulation, the court held it could consider those failures in evaluating the discrimination claim, following Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952. (Id. at pp. 39–40.) The governing rules are demanding: an employer aware of a disability has an “affirmative duty” to make reasonable accommodations, including “to make known to the employee other suitable job opportunities with the employer” (id. at pp. 40–41, quoting Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 950–951); the interactive-process duty arises even without a request, including through third parties such as the insurer or the treating physician (id. at p. 41); a supervisor’s knowledge is conclusively presumed reported to the employer — so Mazon’s silence did not insulate SIS (ibid.); finite leave is itself an accommodation, but an employer may not force leave when another accommodation would let the employee work (id. at pp. 41–42); telling a laid-off disabled employee to “check available job postings,” as SIS did, “does not satisfy the employer’s duty to reassign,” and the disabled employee is entitled to “preferential consideration” for vacant positions. (Id. at p. 42.)

Applying Nadaf-Rahrov: two vacancies, zero communication. SIS’s element-two theory was that Zamora’s doctor had never released him to work in any capacity when he was laid off. But under Nadaf-Rahrov, the employer had to “show there is no triable issue of fact about [the employee’s] ability, with or without accommodation, to perform the essential functions of an available vacant position that would not be a promotion.” (Zamora, supra, 71 Cal.App.5th at p. 43, quoting Nadaf-Rahrov, supra, 166 Cal.App.4th at p. 963.) Dr. Kale released Zamora to modified work in late June 2011 and again in late September 2011, and “[o]n both occasions, there was evidence that SIS had at least one vacant position that Zamora could do with his restrictions” — the administrative-supervisor job in July and the corporate-driver job in early October, for which the recruiter thought Zamora “would be great.” Yet SIS “did not discuss those positions with Zamora.” (Id. at p. 46.) A jury could find that, offered either job, Zamora “may have returned to work then, been insulated from the layoff, and continued working for SIS.” (Ibid.) Nor was his leave open-ended: when laid off he was expected back on light duty within days, “a knee injury with surgery is the type of injury from which people generally heal in the foreseeable future,” and extending leave until a position opened — SIS advertised a supervisor opening in April 2012 — “may have been a reasonable accommodation.” (Id. at p. 47.) The court also borrowed the workers’ compensation rule of Barns: an employer may not terminate an employee on disability leave absent a reasonable belief, grounded in medical prognosis, of permanent or long-duration disability — and Zamora was terminated more than a year before his condition became permanent and stationary. (Id. at p. 44.)

Element three: the trial court’s “similarly situated” demand was error, and Roby supplies the causal inference. Discrimination “because of” disability means treating the employee differently with disability as “a substantial motivating reason” — the standard drawn from Wallace and Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 211–215. (Zamora, supra, 71 Cal.App.5th at p. 49.) The trial court had required Zamora to prove that the two retained supervisors had no disabilities; under Heard v. Lockheed Missiles & Space Co. (1996) 44 Cal.App.4th 1735, 1755, comparator proof “may be one way of raising an inference of intentional discrimination,” but “it is not the only way,” and conditioning the prima facie case on it “restricts unfairly the circumstances from which discrimination may be inferred.” (Id. at pp. 49–50.) On the merits, the court found the causal inference available under Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 710–711, where the Supreme Court held that an employer’s application of a policy “without making any accommodation or even inquiring if an accommodation was possible” can support an inference that the adverse action was because of the medical condition. (Id. at p. 52.) So here: management knew of the disability; SIS never communicated about either vacant position; the disability had been extended only two weeks when the layoff issued. (Id. at pp. 52–53.) Harville had proposed conditioning modified duty on repayment — and “be[ing] prepared to separate him” — before Apple’s budget cut existed. (Id. at pp. 52–53.) A jury could infer the retained supervisors “were more able-bodied than Zamora, since they were reassigned to patrol officer positions,” and it was “undisputed that Vaughn could not explain why SIS preserved Murillo’s and Lopez’s jobs, but not Zamora’s.” (Id. at p. 53.) Layered over everything was the overpayment: SIS’s own error, never documented to Zamora in writing, yet invoked from April 2011 through the termination form’s “must reimburse SIS for extra wages” — despite a ready statutory fix (a Labor Code section 4909 credit) SIS never used. A jury “might reasonably infer … that SIS harbored some animosity toward Zamora about his disability and workers’ compensation claim.” (Id. at pp. 53–54.)

The employer’s own showing failed: Guz’s RIF roadmap requires explaining the individual selections. The court accepted as undisputed the Apple budget cut, the competitive evaluation, and Zamora’s 16th-of-19 ranking — but that was not the claim. Zamora alleged SIS “engaged in intentional discrimination when deciding which individual workers to retain and release,” and under Guz, “[w]here these are issues, the employer’s explanation must address them.” (Zamora, supra, 71 Cal.App.5th at p. 58, quoting Guz, supra, 24 Cal.4th at p. 358.) In Guz itself, Bechtel’s evidence explained, employee by employee, why each person was placed and why Guz was not. (Id. at pp. 58–59.) “Guz provided a detailed roadmap for how the employer should present its evidence to obtain summary adjudication in a case involving a reduction in force, but SIS failed to follow that map. Since SIS’s evidence failed to explain why Murillo and Lopez were retained and Zamora was released, we conclude that its showing was inadequate to demonstrate a legitimate, nondiscriminatory reason for Zamora’s discharge.” (Id. at p. 59.) The trial court’s contrary approach — weighing the Murillo/Lopez evidence “in isolation” — contravened the whole-record rule: the plaintiff’s burden is “to produce evidence that, taken as a whole, permits a rational inference that intentional discrimination was a substantial motivating factor.” (Id. at p. 58, quoting Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 377.)

Pretext: the Soria factors, cumulated. Independently, Zamora’s circumstantial evidence sufficed. Pretext may be shown where “the proffered reason had no basis in fact, the proffered reason did not actually motivate the discharge, or, the proffered reason was insufficient to motivate discharge,” and “may also be inferred from the timing of the company’s termination decision, by the identity of the person making the decision, and by the terminated employee’s job performance before [the] termination.” (Zamora, supra, 71 Cal.App.5th at pp. 56–57, quoting Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 594.) The court cautioned, per Guz, that lying alone is not enough — “[t]he pertinent [FEHA] statutes do not prohibit lying, they prohibit discrimination” (id. at pp. 56–57, quoting Guz, supra, 24 Cal.4th at p. 361, itself drawing on Reeves v. Sanderson Plumbing Products, Inc. (2000) 530 U.S. 133, 148–149) — and that individually weak items must be considered “taken together.” (Id. at p. 60, citing Johnson v. United Cerebral Palsy/Spastic Children’s Foundation (2009) 173 Cal.App.4th 740, 758.) The cumulation was damning. Timing: Zamora was discharged less than five months after surgery, while still recovering; on the day of the layoff he was expected back on light duty in five days; “[t]he timing of Zamora’s discharge around the time he was expected to return to work supports a reasonable inference that SIS elected to lay him off rather than engage in the interactive process and accommodate his disability.” (Id. at p. 60.) Hardship: none shown — SIS was no longer even paying him. (Ibid.) Decisionmaker: the record “does not disclose the identity of the person who made the ultimate decision” or why reassignment, accommodation, or extended leave were never considered. (Id. at pp. 60–61.) Performance: a contemporaneous evaluation calling Zamora “an invaluable asset” with “amazing rapport,” inconsistent with the layoff ranking’s criticism — and “inconsistencies in performance evaluations prior and subsequent to an employee’s termination may support an inference of pretext.” (Id. at p. 61, quoting Johnson, supra, 173 Cal.App.4th at p. 759.) Motive: the overpayment record — the false initial accusation, the unwritten but ever-present repayment condition, the “ripping off” e-mail, the $17,000 in voluntary salary continuance — supported “a reasonable inference that SIS management was unhappy with Zamora because he had filed a workers’ compensation claim that cost the company thousands of dollars, which in turn relates to his disability.” (Id. at pp. 61–62.) “Taken together, this constitutes substantial evidence of discriminatory animus toward Zamora’s disability that raised a triable issue regarding the reasons for his discharge.” (Id. at p. 62.)

Retaliation: the request-for-accommodation theory fails on timing grounds. The elements of FEHA retaliation come from Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042: protected activity, adverse action, causal link. (Zamora, supra, 71 Cal.App.5th at p. 63.) Zamora’s protected activity was requesting time off and accommodations in 2011. Under Rope v. Auto-Chlor System of Washington, Inc. (2013) 220 Cal.App.4th 635, 652, “a mere request — or even repeated requests — for an accommodation, without more,” was not protected activity under section 12940, subdivision (h); the Legislature responded in 2015 with Assembly Bill 987, adding subdivision (m)(2), effective January 1, 2016, which makes it unlawful to “retaliate or otherwise discriminate against a person for requesting accommodation … regardless of whether the request was granted.” (Id. at pp. 63–65.) Following Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 245–247, and Cornell v. Berkeley Tennis Club (2017) 18 Cal.App.5th 908, 941–944, the court held the amendment changed rather than clarified the law and therefore applies prospectively only: “at the time of the relevant events, a request for an accommodation, without more, was insufficient to constitute ‘protected activity’ under section 12940, subdivision (h).” (Id. at pp. 65–67.) Because Zamora engaged in no protected activity in 2011 as a matter of law, summary adjudication of the retaliation claim was affirmed. (Id. at p. 67.)

Significance

Zamora is the modern treatise-level employment MSJ opinion for California disability cases — a single decision that consolidates the moving-party burden (Hicks/Arteaga/Aguilar), the Wallace no-animus principle, the Nadaf-Rahrov vacant-position rule, the Roby causation inference, the Guz RIF “roadmap,” and the Soria/Johnson cumulative-pretext method into one applied analysis. Its most consequential move is the RIF holding: an employer that frames its motion on a legitimate-reason theory in a downsizing case must explain the individual selection decisions the plaintiff has put in issue — here, why two lower-ranked supervisors were saved and the disabled one was not. Budget cuts plus a facially neutral ranking, without that explanation, leave the initial burden unmet. (Zamora, supra, 71 Cal.App.5th at pp. 58–59.) That converts Guz’s narrative of what Bechtel did right into an affirmative pleading standard for employers’ separate statements.

Equally important is the opinion’s treatment of the interactive process as an affirmative, employer-initiated duty whose breach feeds the discrimination claim itself. The duty arises without any request, through third-party knowledge (the insurer, the treating physician); a supervisor’s knowledge is conclusively imputed to the employer; “check the job postings” is not reassignment; and the disabled employee holds “preferential consideration” for vacancies. (Zamora, supra, 71 Cal.App.5th at pp. 41–42.) By allowing the dismissed accommodation and interactive-process claims to be considered as evidence within the section 12940(a) claim (id. at pp. 39–40), and then reviving those claims in the disposition (id. at p. 68), the court made clear the three duties travel together in litigation. The timing holding — a layoff issued days before an expected return to modified duty “supports a reasonable inference that SIS elected to lay him off rather than engage in the interactive process” (id. at p. 60) — directly counters the reflexive “timing alone is never enough” rulings typified by the trial court’s order. And the opinion’s use of workers’ compensation friction (an employer-caused overpayment weaponized as a return-to-work condition) as animus evidence gives plaintiffs a template for cases where the hostility centers on the cost of the claim rather than the disability as such. (Id. at pp. 61–62.) On the other side of the ledger, Zamora confirms — for pre-2016 conduct only — the Rope rule that accommodation requests were not protected activity; for conduct after January 1, 2016, section 12940, subdivision (m)(2), supplies the protection directly. (Id. at pp. 63–67.)

Key quotes

“Guz provided a detailed roadmap for how the employer should present its evidence to obtain summary adjudication in a case involving a reduction in force, but SIS failed to follow that map. Since SIS’s evidence failed to explain why Murillo and Lopez were retained and Zamora was released, we conclude that its showing was inadequate to demonstrate a legitimate, nondiscriminatory reason for Zamora’s discharge.” (Zamora, supra, 71 Cal.App.5th at p. 59.)

“The timing of Zamora’s discharge around the time he was expected to return to work supports a reasonable inference that SIS elected to lay him off rather than engage in the interactive process and accommodate his disability.” (Zamora, supra, 71 Cal.App.5th at p. 60.)

“Taken together, this constitutes substantial evidence of discriminatory animus toward Zamora’s disability that raised a triable issue regarding the reasons for his discharge.” (Zamora, supra, 71 Cal.App.5th at p. 62.)

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Practice pointer

Open questions

The court was explicit about what it did not decide. It expressed “no views on the merits” of the failure-to-accommodate and interactive-process claims as standalone causes of action — while agreeing with the trial court “that there were triable issues as to those claims.” (Zamora, supra, 71 Cal.App.5th at p. 40, fn. 5.) It emphasized that its inferences were summary-adjudication inferences only: “We do not intend to suggest that, at trial, a fact finder should or will weigh [the] evidence and draw the same inferences that we raise in this opinion.” (Id. at p. 46, fn. 7, quoting Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 310, fn. 3.) Several record gaps mark the triable terrain: the identity of the ultimate decisionmaker was never disclosed (id. at pp. 60–61); the record “does not explain why the light duty positions here were not offered to Zamora” (id. at p. 46); it does not reveal what became of the eBay driver position (id. at p. 23); and it does not show whether the administrative supervisor “Lu” held the very position SIS considered offering Zamora. (Id. at p. 46.) Doctrinally, the opinion leaves for another day how far the Barns workers’ compensation standard — no termination during disability leave absent a medically grounded prognosis of permanence — translates into FEHA analysis; the court found it only “instructive.” (Id. at p. 44.) And because the retaliation holding turned on the prospectivity of section 12940, subdivision (m)(2), Zamora says nothing about the scope of that provision’s protection for post-2016 accommodation requests, or about what “more” beyond a bare request would have satisfied subdivision (h) under the pre-amendment law.