Blue Banner Company v. Superior Court CA4/2

• Court: California Court of Appeal
• Decided: April 4, 2025
• Docket: E083453
• Status: Unpublished

Opinion

Filed 4/4/25 Blue Banner Company v. Superior Court CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

BLUE BANNER COMPANY, INC.,

Petitioner, E083453

v. (Super. Ct. No. CVRI2201018)

THE SUPERIOR COURT OF OPINION RIVERSIDE COUNTY,

Respondent;

HERMENEGILDO GONZALEZ,

Real Party in Interest.

ORIGINAL PROCEEDINGS; petition for extraordinary writ. Chad W. Firetag,

Judge. Denied

Jackson Lewis, Arthur K. Cunningham, Alexis N. Hishmeh, and Dylan B. Carp,

for Petitioner.

Southern California Labor Law Group, Taylor M. Prainito, Michael Zelman, and

Brooke C. Bellah, for Real Party in Interest.

No appearance for Respondent.

1 I.

INTRODUCTION

Petitioner Blue Banner Company, Inc. (BB) terminated the employment of real

party in interest Hermenegildo Gonzalez, after he was observed allowing a subordinate

employee to operate a forklift in an unsafe manner. Gonzalez filed a wrongful

termination complaint and first amended complaint (FAC) against BB and other

defendants, alleging age and disability discrimination, retaliation, and other related

claims.

The trial court denied BB’s request for summary judgment but granted BB’s

motion for summary adjudication of the second and fourth causes of action for age

harassment and disability harassment. The trial court also granted summary adjudication

of the twelfth cause of action for intentional infliction of emotional distress, and as to

punitive damages. The trial court denied summary adjudication of the remaining causes

of action.

BB filed a petition for writ of mandate requesting this court to issue a writ of

mandate directing the trial court to vacate its order denying BB’s motion for summary

judgment and enter a new order granting it. BB contends that Gonzalez failed to raise a

triable issue of fact. We disagree and deny BB’s request for a writ of mandate.

2 II.

FACTS AND PROCEDURAL BACKGROUND

A. Undisputed Background Facts

BB is a fruit packing company that grows, packs, and ships fruit, primarily

grapefruit. Gonzalez, who is 65 years old, began working for BB in March 1983.

Gonzalez was terminated from BB in March 2020, after 37 years of employment. He

was hired as a forklift driver and promoted to shipment receiver in 1990. His job

responsibilities as a receiver included unloading items from trucks, inspecting goods for

damage, driving a forklift, billing orders, and taking shipment inventory. He was also

required to closely monitor and supervise forklift operators.

In 2019, Gonzalez slipped and fell at work. He did not report the incident to his

supervisor, Jim Layes. Gonzalez had a second accident in 2019, in which he hit a pole in

the warehouse while driving a forklift, and experienced back pain. He did not request at

that time to be sent to a company doctor for the injury.

Gonzalez’s employment with BB went largely without issue until 2019 when BB

underwent management changes. On November 8, 2019, Gonzalez was given a verbal

warning by Layes, for allowing BB employee, Rubin Alcaraz, to transport eight stacked

bins on a forklift in an unsafe manner. Gonzalez signed the work notice but claimed he

did not see Alcaraz when the incident occurred.

On February 6, 2020, Gonzalez advised BB human resources department

employee, Espie Estrada, that he was suffering from back pain. BB did not refer him to a

3 company workers’ compensation doctor. Gonzalez was told to see his own doctor under

his personal insurance, which he did.

On February 10, 2020, Gonzalez received a written work notice from BB

supervisor, Martin Diaz, reprimanding him for showing up early for work, at 2:00 p.m.,

when he was scheduled to start working at 2:30 p.m. Gonzalez signed the written work

notice.

Gonzalez submitted a workers’ compensation claim for injuries beginning on

February 4, 2019, and continuing until February 4, 2020. BB received a letter dated

February 13, 2020, from Gonzalez’s workers’ compensation attorney, informing BB of

Gonzalez’s workers’ compensation claim.

On March 4, 2020, Gonzalez received a written work notice by Diaz, for not

following his work assignment, by failing to report to work at 4:00 p.m. on February 27,

2020. The work notice stated it was a “Last warning. Next time termination.” Gonzalez

stated in his declaration and in deposition testimony that he refused to sign the written 1 work notice because his supervisor at that time, Omar Garcia, told him not to come in

that day.

On March 5 and 7, 2020, BB provided all employees in the shipping and receiving

department, including Gonzalez, with forklift safety training. BB’s director of

operations, Kevin Nye, stated in his declaration that, during the safety training on March

1 Because Gonzalez also had a previous supervisor by the name of Rudy Garcia, we use Omar Garcia’s first and last name throughout this opinion when referring to him.

4 5, 2020, shipping and receiving employees were advised that forklifts must be operated in

reverse when carrying more than two bins and that no more than three full bins or four

empty bins were permitted to be transported on a forklift at one time.

On March 11, 2020, Vincent Mazzetti, Vice President of BB, saw Alcaraz driving

a forklift forward carrying stacked bins, while Gonzalez walked alongside the forklift.

Mazzetti spoke to BB supervisors Omar Garcia and Layes about the safety violation and

told them the two workers should be terminated. Thereafter, Alcaraz and Gonzalez were

both terminated. Gonzalez refused to sign the discharge work notice dated March 11,

2020. The work notice stated that he was being terminated for failure to operate a forklift

in a safe manner by driving forward with his view obstructed by “3 or 6 bins,” after

receiving training instructing him not to do so, and after receiving a similar verbal

reprimand and work notice on November 8, 2019. The discharge work notice was signed

by Omar Garcia.

B. Wrongful Termination Complaint

On March 11, 2021, Gonzalez filed a verified FEHA claim with the Department of

Fair Employment and Housing and received a letter to sue.

On March 11, 2022, Gonzalez filed a wrongful termination complaint, and 2 thereafter, filed a first amended complaint (FAC) against BB, alleging the following 12

causes of action: (1) age discrimination in violation of the FEHA; (2) age harassment

2 The FAC also names as defendants BB employees Jim Layes, Martin Diaz, Omar Garcia, Michael Lewin, and Vincent Mazzetti.

5 under FEHA; (3) disability discrimination under FEHA; (4) disability harassment under

FEHA; (5) failure to provide reasonable accommodation under FEHA; (6) failure to

engage in the interactive process; (7) retaliation under FEHA; (8) failure to prevent

discrimination, harassment, and retaliation under FEHA; (9) retaliation under Labor Code

section 6310; (10) wrongful termination in violation of public policy; (11) violation of

Labor Code section 1102.5; and (12) intentional infliction of emotional distress.

C. Motion for Summary Judgment or Summary Adjudication

In July 2023, BB filed a motion for summary judgment or, alternatively, for

summary adjudication (MSJ/MSA), with supporting exhibits and declarations by BB’s

director of operations, Kevin Nye, and BB’s attorney, Arthur Cunningham. BB argued

that Gonzalez was terminated for failure to comply with safety procedures, which is a

legitimate, non-discriminatory reason. Specifically, Gonzalez was terminated on March

11, 2020, “due to his failure to operate and supervise workers using the forklifts in a safe

manner following previous warnings and training.” BB further argued that Gonzalez did

not inform BB of his disability or request an accommodation, and BB did not learn of

Gonzalez’s workers’ compensation claim until after Gonzalez was terminated. BB

asserted that Gonzalez’s related claims lack merit for similar reasons.

Gonzalez filed opposition to BB’s MSJ/MSA, with supporting exhibits and

declarations by Gonzalez, Alcaraz, and Gonzalez’s attorney, Brooke Bellah. Gonzalez

argued in his opposition that triable issues of fact exist as to whether BB was aware of his

disability and whether Gonzalez requested accommodation before BB terminated him.

6 Gonzalez further argued there is evidence BB refused to provide him with any

accommodations or refer him to a doctor for his work-related injuries. Gonzalez asserted

he established a prima facie case of age and disability discrimination, and BB’s alleged

reasons for terminating him were pretextual. Younger employees were not terminated for

similar safety violations. Gonzalez argued his other causes of action are derivative of his

discrimination claims, and therefore summary adjudication should be denied as to them

as well.

BB filed a reply to Gonzalez’s opposition, arguing that Gonzalez failed to

effectively dispute the ultimate facts supporting BB’s motion for summary judgment. In

addition, Gonzalez failed to provide any evidence showing that BB’s legitimate

nondiscriminatory reasons for terminating Gonzalez were pretext.

On February 16, 2024, the trial court heard BB’s MSJ/MSA. After considering the

pleadings and supporting evidence, and hearing oral argument, the trial court ruled on the

parties’ evidentiary objections and denied BB’s motion for summary judgment. The court

also denied summary adjudication, except as to the second, fourth, and twelfth causes of

action (age harassment, disability harassment, and intentional infliction of emotional

distress). The court also granted summary adjudication as to punitive damages.

On March 13, 2024, BB filed a petition for writ of mandate, and thereafter, an

amended writ petition, with a request for a stay, which this court granted. BB requests in

its writ petition that this court issue a peremptory or alternative writ of mandate directing

the trial court to vacate its order denying BB’s motion for summary judgment and enter a

7 new order granting the motion. Gonzalez filed preliminary opposition, and BB filed a

reply. This court ordered the parties to show cause why the requested relief should not be

granted. Thereafter, Gonzalez filed a return, and BB filed a travers.

III.

LAW APPLICABLE TO SUMMARY JUDGMENT AND ADJUDICATION

The purpose of the laws of summary judgment and summary adjudication are “to

provide courts with a mechanism to cut through the parties’ pleadings in order to

determine whether, despite their allegations, trial is in fact necessary to resolve their

dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar); Serri v.

Santa Clara University (2014) 226 Cal.App.4th 830, 859 (Serri).) Under summary

judgment law, a defendant may file a motion for summary judgment on a defense

contending that the action has no merit. (Code Civ. Proc., § 437c, subd. (a); Aguilar,

supra, at p. 843.)

A “motion for summary judgment shall be granted if all the papers submitted show

that there is no triable issue as to any material fact and that the moving party is entitled to

a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) “There is a genuine

issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to

find the underlying fact in favor of the party opposing the motion in accordance with the

applicable standard of proof.” (Serri, supra, 226 Cal.App.4that p. 860, citing Aguilar,

supra, 25 Cal.4th at p. 845.)

8 Under Code of Civil Procedure section 437c, subdivision (f)(1), “[a] party may

move for summary adjudication as to one or more causes of action within an action, one

or more affirmative defenses, one or more claims for damages, or one or more issues of

duty.” “Summary adjudication motions are ‘procedurally identical’ to summary judgment

motions.” (Serri, supra, 226 Cal.App.4th at p. 859.)

“A defendant moving for summary adjudication of a cause of action must show

either that one or more elements of the cause of action cannot be established or that there

is a complete defense. ‘[A]ll that the defendant need do is to show that the plaintiff

cannot establish at least one element of the cause of action. . . . [T]he defendant need not

himself conclusively negate any such element . . . .’ [Citations.] If that burden is met, the

burden shifts to the plaintiff to show the existence of a triable issue of fact with respect to

that cause of action or defense.” (Mateel Environmental Justice Foundation v. Edmund

A. Gray Co. (2003) 115 Cal.App.4th 8, 16-17, quoting Aguilar, supra, 25 Cal.4th at p.

853; see also Code Civ. Proc., § 437c, subd. (p)(2).)

We review motions for summary judgment and summary adjudication “de novo to

determine whether there is a triable issue as to any material fact and whether the moving

party is entitled to judgment as a matter of law. [Citations.] We are not bound by the trial

court’s stated reasons or rationales. [Citation.] . . . Summary judgment is a drastic

remedy to be used sparingly, and any doubts about the propriety of summary judgment

must be resolved in favor of the opposing party. [Citations.]” (Mateel Environmental

Justice Foundation v. Edmund A. Gray Co., supra, 115 Cal.App.4th at p. 17.)

9 IV.

APPLICABLE EMPLOYMENT LAW

BB challenges the trial court’s order denying BB’s MSJ/MSA as to Gonzalez’s age

and disability employment discrimination causes of action, and other related causes of

action. Federal and state laws prohibit employers from discriminating against employees

on the basis of age, disability, and other protected classifications. (Gov. Code, §§ 12940, 3 subd. (a), 12941, subd. (a) ; 42 U.S.C. § 2000e et seq. [Title VII of the Civil Rights Act of

1964 (Pub.L. No. 88-352 (July 2, 1964) 78 Stat. 241)].)

In employment discrimination cases, “we analyze the trial court’s decision on a

motion for summary judgment using a three-step process that is based on the burden-

shifting test that was established by the United States Supreme Court for trials of

employment discrimination claims in McDonnell Douglas Corp. v. Green (1973) 411

U.S. 792. [Citations.] This test ‘reflects the principle that direct evidence of intentional

discrimination is rare, and that such claims must usually be proved circumstantially.

Thus, by successive steps of increasingly narrow focus, the test allows discrimination to

be inferred from facts that create a reasonable likelihood of bias and are not satisfactorily

explained.’ [Citation.]” (Serri, supra, 226 Cal.App.4th at p. 860.)

Under the three-part burden-shifting test, the plaintiff employee has the initial

burden to make a prima facie case of discrimination. “[A] plaintiff’s prima facie burden

is minimal. ‘The amount [of evidence] that must be produced in order to create a prima

3 Unless otherwise noted, all statutory references are to the Government Code.

10 facie case is “very little.”’” (Caldwell v. Paramount Unified School Dist. (1995) 41

Cal.App.4th 189, 197.) The employer then must rebut the presumption of discrimination

with evidence that the employer’s actions were taken for a legitimate, nondiscriminatory

reason. The burden then shifts back to the plaintiff to show that the proffered

nondiscriminatory reason was a pretext. (Harris v. City of Santa Monica (2013) 56

Cal.4th 203, 214-215; Serri, supra, 226 Cal.App.4th at pp. 860-861.)

But when a defendant moves for summary judgment/adjudication, these trial

procedure rules do not apply. “A defendant seeking summary judgment must bear the

initial burden of showing that ‘the action has no merit’ [citation], and the plaintiff will not

be required to respond unless and until the defendant has borne that burden. [Citations.]

In this sense, upon a defendant’s summary judgment motion in an employment

discrimination action ‘the burden is reversed . . . .’ [Citation.]” (Martin v. Lockheed

Missiles & Space Co., (1994) 29 Cal.App.4th at pp. 1730-1731; Nelson v. United

Technologies (1999) 74 Cal.App.4th 597, 613; Serri, supra, 226 Cal.App.4th at p. 861.)

BB here presented evidence that Gonzalez was terminated for legitimate reasons

that were “unrelated to unlawful discrimination.” (Hicks v. KNTV Television, Inc. (2008)

160 Cal.App.4th 994, 1003.) The key issue thus is “whether the employer acted with a

motive to discriminate illegally. Thus, ‘legitimate’ reasons [citation] in this context are

reasons that are facially unrelated to prohibited bias, and which, if true, would thus

preclude a finding of discrimination.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th

317, 358; Serri, supra, 226 Cal.App.4th at p. 861.)

11 “[T]he great weight of federal and California authority holds that an employer is

entitled to summary judgment if, considering the employer’s innocent explanation for its

actions, the evidence as a whole is insufficient to permit a rational inference that the

employer’s actual motive was discriminatory.” (Guz v. Bechtel National, Inc., supra, 24

Cal.4th at p. 361, fn. omitted; Serri, supra, 226 Cal.App.4th at p. 861.) “It is not

sufficient for an employee to make a bare prima facie showing or to simply deny the

credibility of the employer’s witnesses or to speculate as to discriminatory motive.

[Citations.] Rather it is incumbent upon the employee to produce ‘substantial responsive

evidence’ demonstrating the existence of a material triable controversy as to pretext or

discriminatory animus on the part of the employer. [Citations.]” (Serri, supra, at p. 862.)

V.

AGE DISCRIMINATION IN VIOLATION OF FEHA

BB contends Gonzalez cannot establish a prima facie case of age discrimination

because he has failed to provide any evidence that he was replaced by a significantly

younger employee. We disagree.

Under FEHA, it is unlawful for an employer to discriminate against an employee

on the basis of age. (§ 12940, subd. (a).) Section 12941, subdivision (a), makes it

unlawful to take adverse employment actions against a person over the age of 40 on the

grounds of age. To establish a prima facie case of age discrimination, the employee must

show “(1) at the time of the adverse action he or she was 40 years of age or older,[] (2) an

adverse employment action was taken against the employee, (3) at the time of the adverse

12 action the employee was satisfactorily performing his or her job and (4) the employee

was replaced in his position by a significantly younger person.” (Hersant v. Department

of Social Services (1997) 57 Cal.App.4th 997, 1003, fn. omitted.)

Here, Gonzalez cited sufficient evidence of the four elements required to establish

a prima facie case of age discrimination. First, it was undisputed Gonzalez was over 40

years old. At the time he was terminated, he was almost 63 years old.

Second, it is undisputed an adverse employment action was taken against

Gonzalez. He began working at BB in March 1983 as a forklift operator, and was

promoted in 1990, to a receiver, which was a salaried supervisor position. In December

2018, he received a salary merit increase. Although Gonzalez had been an exemplary

employee for over 36 years, at the end of 2019, Gonzalez was told that Omar Garcia

would be taking over as supervisor of the receiving department and Gonzalez would be

reporting to him. Omar Garcia began assuming some of Gonzalez’s supervisorial job

duties. Then, without providing any explanation or reasons, Gonzalez’s supervisors told

him that, because he would no longer be a supervisor, he was being reclassified as an

hourly, non-exempt employee, which in effect, was a demotion. This occurred after there

was new leadership at BB in 2019. Gonzalez’s supervisors also cited him for

performance violations in November 2019, and in February and March 2020. Gonzalez

noticed that other younger employees who committed the same type of conduct were not

disciplined. When terminated, Gonzalez was 63 years old.

13 4 Third, Gonzalez provided evidence, including his declaration and deposition

testimony, that, at the time of the adverse action, he was satisfactorily performing his job.

Gonzalez testified that, at the time of his termination, he was capable of performing his

job duties, with some limitations, such as limitations on lifting heavy objects. He was

capable of operating a forklift. Before BB’s leadership changed in 2019, Gonzalez

regularly received merit-based wage increases up until December 2018.

As to the fourth factor required to establish a prima facie case of age

discrimination, the record contains evidence supporting a reasonable finding that, when

Gonzalez was demoted from his position as a salaried supervisor to an hourly employee

and thereafter terminated, most of his job responsibilities were transferred to a younger

employee, Omar Garcia, who was 36 years old. Also, Gonzalez alleges in his FAC that

when he was terminated, he was replaced by a much younger employee, who was around

22 years old. Although there is no evidence as to the age of the employee who replaced

Gonzalez when he was terminated, a reasonable inference can be made, based on the

totality of the evidence, that he was replaced by a younger employee. There is evidence,

including Gonzalez and Alcaraz’s statements of their observations that there were no

other employees in the receiving department older than 60 when Gonzalez and Alcaraz

were terminated. This reflects BB’s proclivity to hire young employees.

4 The trial court sustained BB’s objections to Gonzalez’s declaration only as to paragraphs 11, 20, and 21. This court may thus consider admissible statements made within the remainder of Gonzalez’s declaration, to which the trial court overruled BB’s objections

14 In addition, Alcaraz’s declaration supports a reasonable inference that he and

Gonzalez were terminated in whole or in large part based on their age, and replaced by

younger employees. According to Alcaraz, contrary to company policy, his work notice 5 of termination was the first written work notice he had ever received. Alcaraz had

worked for BB for 24 years, and throughout that time, had worked with Gonzalez in the

receiving department as a forklift driver. Alcaraz stated in his declaration that he and

Gonzalez were the only workers in the receiving department over 60 years old. All other

workers in the department were in their 20s and 30s. Alcaraz further stated that there

were “no other older workers in receiving and shipping departments other than Mr.

Primitivo Zamora, who worked in shipping,” and he left the company shortly after new

management took over in 2019. Gonzalez’s declaration, deposition testimony, and other

evidence similarly support reasonable inferences he was terminated based on his age and

replaced by a younger employee.

Furthermore, “although ‘proof regarding “similarly situated” employees outside

the protected class . . . may be one way of raising an inference of intentional

discrimination, it is not the only way. . . . [¶] To state that a plaintiff may never establish

a prima facie case if the plaintiff fails to produce evidence that similarly-situated

employees outside the protected class were promoted, restricts unfairly the circumstances

5 We recognize the trial court sustained BB’s evidentiary objections to some of Alcaraz’s statements in his declaration. This does not preclude this court from considering admissible statements in Alcaraz’s declaration which provide relevant facts based on Alcaraz’s personal knowledge and observations.

15 from which discrimination may be inferred.’” (Begnal v. Canfield & Associates, Inc.

(2000) 78 Cal.App.4th 66, 75, quoting Heard v. Lockheed Missiles & Space Co., (1996)

44 Cal.App.4th 1735, 1775.)

“‘Although the characteristics of the employee replacing a discharged or demoted

employee are certainly relevant in evaluating an employer’s motive for an employment

decision, we believe those characteristics go to the weight of the evidence rather than its

legal sufficiency.’” (Begnal, supra, 78 Cal.App.4th at p. 75, italics added; see also

Hersant v. Department of Social Services, supra, 57 Cal.App.4th at pp. 1002-1003, fn. 3

[court observed, in dicta, that evidence of replacement by a younger person may not be

necessary if the employee offers other evidence “such that a reasonable inference of age

discrimination arises”].) In this case, evidence supports an inference that BB terminated

Gonzalez based upon his age. We therefore conclude there are triable issues of fact as to

whether Gonzalez was replaced by a younger employee and whether there was age

discrimination.

BB argues Gonzalez cannot establish a prima facie case of age discrimination

because it is undisputed Gonzalez was terminated for a legitimate, nondiscriminatory

reason. “[T]o avoid summary judgment, an employee claiming discrimination must offer

substantial evidence that the employer’s stated nondiscriminatory reason for the adverse

action was untrue or pretextual, or evidence the employer acted with a discriminatory

animus, or a combination of the two, such that a reasonable trier of fact could conclude

16 the employer engaged in intentional discrimination.” (Hersant v. Department of Social

Services, supra, 57 Cal.App.4th at pp. 1004-1005.)

“‘[T]he [employee] must demonstrate such weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate

reasons for its action that a reasonable factfinder could rationally find them “unworthy of

credence,” [citation], and hence infer “that the employer did not act for the [the asserted]

non-discriminatory reasons.” [Citations.]’” (Hersant v. Department of Social Services,

supra, 57 Cal.App.4th at p. 1005, quoting Fuentes v. Perskie (3d Cir. 1994) 32 F.3d 759,

765, fn. omitted.)

The court in Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 286, noted

that “many employment cases present issues of intent, and motive, and hostile working

environment, issues not determinable on paper. Such cases, we caution, are rarely

appropriate for disposition on summary judgment, however liberalized it be.” The Nazir

court added in a footnote that “[t]he leading practical treatise for California federal

procedure goes so far as to state that ‘Disputes as to the employer’s motives or state of

mind raise factual issues, precluding summary judgment. [Citations.]’ (Schwarzer et al.,

Cal. Practice Guide: Federal Civil Procedure Before Trial (The Rutter Group 2009) ¶

14:280, p. 14-81.)” (Nazir v. United Airlines, Inc, supra, 178 Cal.App.4th at p. 286, fn.

23.)

Here, Gonzalez has provided sufficient evidence raising a triable issue of material

fact as to whether BB’s proffered reason for terminating him was pretext for terminating

17 him based on his age. There is evidence that BB deviated from its written termination

policies and actual termination practices when terminating both Gonzalez and Alcazar,

who observed they were the only employees remaining in the receiving department over

the age of 60. BB’s employee handbook states that disciplinary action normally shall be

progressive. Exceptions may occur where BB believes that the circumstances are such

that it is necessary not to follow normal progressive disciplinary procedures, such as

where there has been a serious act of misconduct.

A reasonable fact finder could find that Gonzalez’s conduct of walking alongside

Alcaraz, who was driving a forklift with a stack of bins obscuring his view, was not a

violation warranting immediate termination. Layes testified that “there was no height

limit” on the bins stacked on a forklift. According to Layes, the policy “was basically

just do not exceed the load of the forklift” and “operate the forklift safely.” When asked

if BB had a policy regarding the maximum number of bins that forklift drivers could

carry at one time, Layes responded, “No, I don’t think – I don’t remember a policy.”

Consistent with this response, Gonzalez stated in his declaration that Layes had

previously told him that, when forklift drivers transported multiple bins, they should

drive in reverse. But when Gonzalez told Layes that he did not always feel comfortable

driving the forklift in reverse and felt safer driving forward, Layes instructed Gonzalez to

drive the forklift in the way he felt safest. A triable issue thus exists as to whether

Alcaraz’s act of driving a forklift forward, with Gonzalez walking alongside him,

qualified as serious misconduct subject to immediate termination of Gonzalez under the

18 BB employee handbook policies and procedures. Examples of serious misconduct listed

in the employee handbook include employee acts of violence, insubordination toward a

supervisor, and theft or destruction of property.

The termination process stated in BB’s employee handbook consists of the

following four-step termination process: step 1, a verbal warning of unacceptable

conduct; step 2, a written work notice; step 3, a second written work notice for continued

failure to comply; and step 4, a third written work notice within a twelve month period,

resulting in termination.

Unlike Alcazar, who said he had no prior work notices for performance violations,

Gonzalez had a recent history of work notices, beginning when there was a change in BB

management in 2019. When Gonzalez was terminated on March 11, 2020, he had

received three prior work notices. His first was a verbal warning on November 8, 2019,

for a worker under his supervision transporting stacked bins on a forklift. Gonzalez

testified he did not see the incident. On February 10, 2020, Gonzalez received a write-up

for showing up early for work, at 2:00 p.m., when he was scheduled to start working at

2:30 p.m. Gonzalez stated he had a lot of work to do, so he came in early, as he often did.

On March 4, 2020, Gonzalez received a write up for not following his work assignment,

by failing to report to work at 4:00 p.m., on February 27, 2020, after being told not to

come in to work that day. The work notice states it was a “Last warning. Next time

termination.” Gonzalez refused to sign the written work notice because his supervisor

told him not to show up that day.

19 The final incident was on March 11, 2020, for allowing Alcaraz, whom Gonzalez

was supervising, to drive a forklift forward carrying stacked bins, while Gonzalez walked

alongside. Alcaraz and Gonzalez were both immediately terminated. Gonzalez refused

to sign the discharge work notice, which stated he was being terminated for failure to

operate a forklift in a safe manner, driving forward with full view obstructed by “3 or 6

bins,” after receiving training instructing him not to do so, and after a verbal warning on

November 8, 2019.

Although Gonzalez may have committed a safety violation for supervising a

forklift driver who drove a forklift forward with a stack of bins, a reasonable inference

can be made that such conduct did not justify termination, particularly since Gonzalez

had a long history of good job performance and did not have any work notices until after

new management took over in 2019 and began citing him for work performance

violations, that were of questionable validity. When BB supervisor Layes was asked

during his deposition if any BB employees in the shipping and receiving departments had

ever been automatically terminated for a safety violation, Layes stated he did not recall

any. He recalled some suspensions for major safety violations in the shipping department

for close calls with forklift drivers and pedestrians. Layes only recalled suspensions for

major safety violations, but did not recall how many and he could not think of a particular

instance over the course of his 20 years with BB.

Also, Gonzalez was demoted without being given any valid justification, and he

received two work notices within a month and a half of his termination, and the notices

20 could be reasonably construed as unfounded or of a minor nature. In turn, because a

reasonable factfinder could find that the February 10 and or March 4, 2020, work notices

were unfounded, BB did not comply with its progressive disciplinary policy when it

terminated Gonzalez.

Additional evidence of age discrimination includes Alcaraz’s declaration statement

that he also was terminated even though he had never received any prior written work

notices during his 24 years of employment with BB. Also, Gonzalez testified that

although no one said anything to him about his age, his manager criticized him for

working too slow, whereas the younger employees, most of whom appeared to be in their

20s and 30s, were not criticized, even though they were working at the same pace as

Gonzalez. Even though there is no evidence of the age of the employee who replaced

Gonzalez when he was terminated, under the totality of the evidence, a reasonable

inference can be made that Gonzalez was singled out and terminated because of his age.

We thus conclude the evidence raises a triable issue of fact as to whether

Gonzalez’s age was a substantial factor relied upon by BB when BB demoted and

terminated him. (Harris v. City of Santa Monica, supra, 56 Cal.4th at p. 232.) The

record provides evidence disputing that BB’s reasons for Gonzalez’s termination were

legitimate, and supports a reasonable finding that they were pretext for discriminating

against him based on his age. Therefore, denial of summary adjudication of the first

cause of action for age discrimination was proper.

21 VI.

DISABILITY DISCRIMINATION IN VIOLATION OF FEHA

BB contends the trial court erred in denying its motion for summary adjudication

of the third cause of action for disability discrimination under section 12940, subdivision

(a) because there was no evidence BB knew Gonzalez had a disability. We disagree.

Under FEHA section 12940, subdivision (a), it is unlawful for an employer to

discriminate against an employee because of a physical or mental disability or medical

condition. A prima facie case for disability discrimination requires the plaintiff to show

that the employee: (1) suffers from a disability; (2) is otherwise qualified to do his job;

and (3) was subjected to adverse employment action because of the employee’s disability.

(Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 864, 886.)

The plaintiff employee bears the burden of establishing a prima facie case of

discrimination based on a disability, and “the burden then shifts to the employer to offer a

legitimate, nondiscriminatory reason for the adverse employment action.” (Faust v.

California Portland Cement Co., supra, 150 Cal.App.4th at p. 886, quoting Deschene v.

Pinole Point Steel Co. (1999) 76 Cal.App.4th 33, 44.) Once the employer has established

a nondiscriminatory reason, the plaintiff must offer evidence that the employer’s stated

reason is false or pretextual, or the employer acted with discriminatory animus, or

evidence of each of these, which would permit a reasonable trier of fact to conclude the

employer intentionally discriminated. (Faust v. California Portland Cement Co, supra, at

p. 886; Deschene v. Pinole Point Steel Co., supra, at p. 44.)

22 Section 12926.1, subdivision (a) adds that state law disability protection is broader

and provides protections independent from those in the federal Americans with

Disabilities Act of 1990. Section 12926.1 clarifies that “[p]hysical and mental disabilities

include, but are not limited to, chronic or episodic conditions . . . . In addition, the

Legislature has determined that the definitions of ‘physical disability’ and ‘mental

disability’ under the law of this state require a ‘limitation’ upon a major life activity, but

do not require, as does the federal Americans with Disabilities Act of 1990, a ‘substantial

limitation.’ This distinction is intended to result in broader coverage under the law of this

state than under that federal act . . . . Further, under the law of this state, ‘working’ is a

major life activity, regardless of whether the actual or perceived working limitation

implicates a particular employment or a class or broad range of employments.”

(§ 12926.1, subd. (b); see also Colmenares v. Braemar Country Club, Inc. (2003) 29

Cal.4th 1019, 1031.)

Gonzalez alleged in his third cause of action for disability discrimination that BB’s

decision to terminate him and take other adverse actions against him was motivated by

Gonzalez’s actual, perceived, and history of disability (§ 12940, subd. (a)). BB moved

for summary adjudication of the third cause of action for disability discrimination on the

ground that Gonzalez could not establish a prima facie case of disability discrimination,

because he could not show that he was subjected to adverse employment action due to his

disability.

23 BB does not argue Gonzalez did not have any physical disability. BB also does

not contend he could not perform his job or that he was terminated because of his

physical limitations. Rather, BB argues it was unaware that Gonzalez suffered any

disability, and therefore Gonzalez cannot show that BB discriminated against him based

on a physical disability when terminating him. BB further argues it had a legitimate,

nondiscriminatory business reason for terminating Gonzalez, and he did not present

evidence that BB’s reasons were false or pretextual. We conclude Gonzalez provided

sufficient evidence to raise a triable issue of fact as to whether BB knew of Gonzalez’s

disability before terminating him and whether the reasons for terminating Gonzalez were

pretextual.

There is undisputed evidence that Gonzalez suffered from work-related back

injuries and other physical conditions. These injuries may have been caused by a couple

of accidents in 2019, as well as from Gonzalez performing his job responsibilities over

the course of his employment at BB. Gonzalez testified that in 2019, he hurt his back

when he slipped and fell backwards at work. He did not report the incident to supervisor

Layes, but told another supervisor, Primitivo Zamora, and Alcaraz about the incident.

Gonzalez had another accident in 2019, in which he hurt his back when driving a forklift

in reverse and hit a pole. He told his supervisor, Rudy Garcia.

Gonzalez further testified that on February 6, 2020, he told Estrada about the two

2019 incidents, and that he was having a lot of back pain. He told her he could not work

the same as he had before. He also told Estrada that he believed his back pain was

24 caused by repetitive work-related movement and injuries, and requested Estrada to send

him to a company doctor. She said no, because a long time had passed since his forklift

accident in 2019.

Estrada testified that Gonzalez came to her office on February 6, 2020, and she

learned of Gonzalez’s back injury and that he wanted to go to the doctor. He told her his

back was bothering him. When she asked him if he had just got hurt, he said, “No.”

Estrada testified he said, “‘I had little injuries here and there in the past years, and I think

it’s due to that.’” Gonzalez said his injuries happened at work in the past. She did not

ask him more follow-up questions about his injuries because he had said he had not been

involved in any injuries within the past few years. Estrada explained that Gonzalez said

his injuries over the years were from “repetitive stuff, twisting and turning.” She

believed Gonzalez came to see her because he wanted to see a doctor. She did not send

him to a doctor because she concluded, based on his statements, he did not have a work-

related injury. Also, he did not submit a work-related injury report, complain to anyone

that he was injured in the past, or complain to his supervisors or upper management.

Estrada acknowledged that in 2020, she understood that repetitive workplace activities

causing aches and pains could qualify as a workplace injury.

Estrada further testified that on February 6, 2020, after meeting with Gonzalez,

she prepared a statement summarizing the meeting. She put her statement in a workers’

compensation file in the event something came up in the future. That same day Estrada

reported Gonzalez’s injury to Mazzetti, who said, “‘Do what you have to do.’” Estrada

25 also talked to Layes about Gonzalez’s injuries because Layes was the packinghouse

manager and worked directly with Gonzalez. She told Layes that in case BB needed to

accommodate Gonzalez or alter Gonzalez’s job duties. Layes responded, “‘Thanks for

the update.’” It was Estrada’s usual practice at that time to have a conversation with the

employee’s supervisors about an employee’s report to her of having pain or an injury.

According to Estrada, at the time of her meeting with Gonzalez in February 2020,

Primitivo Zamora and Layes were Gonzalez’s supervisors.

Estrada testified that her job duties included assisting employees who requested

accommodations for their job. That was why she “had that conversation with Mr. Layes

after – after Mr. Gonzalez conveyed his aches and pains to [her].” Estrada denied that

Gonzalez requested accommodations but she also did not ask him if he needed any

because “[t]here was nothing to accommodate.” There were no doctors’ notes or reports.

Estrada’s written statement briefly summarizing her meeting with Gonzalez on

February 6, 2020, stated that “Gonzalez was in my office complaining about his back and

wanting to go to the Doctor . . . . [M]y question to him was: did you get hurt? [H]is

answer was NO but years back I’ve had little incidents and it could be related to that. [¶]

I checked the files [to] see if we had any previous work-related injuries on him and no

reported injuries were found. [¶] My suggestion to him was to go see his primary doctor

and get it checked out.” An OSHA form 300, entitled “Log of Work-Related Injuries and

Illnesses,” states that Gonzalez injured his back on February 4, 2020, and the injury was

caused by a forklift. The form does not indicate when or who filled out the form.

26 Gonzalez testified he believed Layes knew that he had reported to Estrada his back

injury because Layes arrived shortly after his meeting with Estrada began. Gonzalez did

not remember what part of the conversation Layes heard, but Layes mentioned the

conversation to him afterwards. Layes said he heard Gonzalez say to Estrada that he had

pain and was going to work slower.

We conclude there is sufficient evidence to raise a triable issue as to whether BB

was aware of Gonzalez’s injuries and related limitations before terminating him, and

whether BB terminated him because of them. “As stated in Schmidt v. Safeway Inc.

(D.Or.1994) 864 F.Supp. 991, 997, an employer ‘knows an employee has a disability

when the employee tells the employer about his condition, or when the employer

otherwise becomes aware of the condition, such as through a third party or by

observation. The employer need only know the underlying facts, not the legal

significance of those facts.’” (Faust v. California Portland Cement Co., supra, 150

Cal.App.4th at p. 887.)

There is also sufficient evidence to raise a triable issue as to whether BB’s stated

reason for terminating Gonzalez was pretext. Shortly after Gonzalez told Estrada on

February 6, 2020, that he was suffering debilitating back pain from work-related injuries,

he received two work notices and then was fired for a third incident on March 11, 2020.

“Although ‘temporal proximity alone is not sufficient to raise a triable issue as to pretext,’

‘temporal proximity, together with the other evidence, may be sufficient to establish

pretext.’” (Diego v. Pilgrim United Church of Christ (2014) 231 Cal.App.4th 913, 932,

27 quoting Arteaga v. Brink's, Inc. (2008) 163 Cal.App.4th 327, 353, 354.) As the court in

Arteaga explained: “In the classic situation where temporal proximity is a factor, an

employee has worked for the same employer for several years, has a good or excellent

performance record, and then, after engaging in some type of protected activity . . . is

suddenly accused of serious performance problems, subjected to derogatory comments

about the protected activity, and terminated.” (Arteaga v. Brink’s, supra, 163 Cal.App.4th

at pp. 353-354.) Here, there was temporal proximity between Gonzalez reporting his

disability and his termination. He also had a lengthy, good job performance history,

without any job performance work notices until a change in management in 2019.

In addition, there is evidence that, before Gonzalez was terminated, BB was

notified by a letter dated February 13, 2020, that Gonzalez was submitting a workers’

compensation claim for his work-related injuries suffered between February 4, 2019, and

February 4, 2020. Attached to the letter is a proof of service stating that BB was served

with the letter by mail on February 13, 2020.

BB argues that Gonzalez could not raise a triable issue as to his disability by

relying on paragraph 15 of his declaration, because paragraph 15 contradicts his prior

deposition testimony admissions. Paragraph 15 states: “While in her office, I informed

Estrada that I was experiencing severe back pain and did not believe I could continue

working my normal job duties without accommodations—specifically, being permitted to

work more slowly and take breaks when needed. “I then asked Estrada if I could go see a

doctor. Ignoring my request for help, Estrada asked me if he [I] had ‘just injured’ myself,

28 and I told Estrada about the numerous incidents in which I had injured himself [myself]

at work, including the incidents in 2019 when I slipped and fell at work and ran into a

pole. Instead of engaging with me regarding my debilitating injury, Estrada dismissed

me, told me to see my own doctor, and sent me back to work. However, before sending

me back to work, Estrada called [Omar] Garcia while I was in her office and told me

[him] that Gonzalez [I] needed to ‘take it easy’ because I had an injured back. I could

have continued performing my job duties with accommodations.” (Italics and bold

added.)

First, we recognize that, as BB notes, this paragraph includes the use of incorrect

pronouns, which are indicated in italics and bold. BB argues the statements are therefore

incomprehensible and refers to paragraph 15 as containing “gibberish.” But these

grammatically incorrect statements are comprehensible when replacing the incorrect

pronouns (in bold italics) with the obvious proper pronouns, which we include in

brackets. It is likely that these grammatical errors were inadvertently made by Gonzalez,

who speaks Spanish, or his translator.

BB further argues paragraph 15 must be disregarded because it contains statements

which are inconsistent with Gonzalez’s deposition testimony regarding whether Gonzalez

requested disability accommodations. Gonzalez’s deposition testimony and declaration

statements in paragraph 15 are not inconsistent. He testified that he did not tell Omar

Garcia that he had a disability or that he needed to change the way he performed his job

so he could do his job comfortably. Gonzalez also testified that he never asked anyone at

29 BB to change anything about the way he performed his work in order to make it more

comfortable for him. Although in his declaration, Gonzalez states he told Estrada that he

needed to work slower and take breaks, this is not inconsistent with his deposition

testimony that he never asked anyone at BB to change the way he was required to

perform his job.

Even assuming Gonzalez’s statements in paragraph 15 of his declaration are

construed as inconsistent with his deposition testimony, disregarding paragraph 15 would

not make any difference in the outcome of BB’s MSJ/MSA. There is ample evidence in

the record sufficient to raise a triable issue as to whether BB was aware of Gonzalez’s

disability and whether BB’s stated reason for terminating him was pretextual. We

therefore conclude the trial court did not err in denying summary adjudication of BB’s

third cause of action for disability discrimination.

VII.

OTHER WRONGFUL TERMINATION CAUSES OF ACTIONS

BB contends the trial court erred in denying summary adjudication of the fifth

through eleventh causes of action alleged in the FAC. We conclude Gonzalez provided

sufficient evidence to raise triable issues of material fact as to those causes of action.

A. Fifth Cause of Action for Failure to Provide Reasonable Accommodation

The fifth cause of action alleges failure to provide reasonable accommodations to

Gonzalez for his disability, in violation of FEHA (§ 12940, subds. (a), (i), (m), & (n)).

Under FEHA, it is unlawful for any employer to fail to provide reasonable

30 accommodations for an employee’s known physical or mental disabilities. (§ 12940,

subd. (m)(1); Hernandez v. Rancho Santiago Community College District (2018) 22

Cal.App.5th 1187, 1192-1193.) “There are three elements to a failure to accommodate

action: ‘(1) the plaintiff has a disability covered by the FEHA; (2) the plaintiff is a

qualified individual (i.e., he or she can perform the essential functions of the position);

and (3) the employer failed to reasonably accommodate the plaintiff’s disability.

[Citation.]’” (Hernandez v. Rancho Santiago Community College Dist., supra, at pp.

1193-1194.)

Gonzalez provided evidence that he had a disability protected by FEHA and was a

qualified individual under FEHA. He also provided substantial evidence that BB failed

to reasonably accommodate his disability after he told Estrada on February 6, 2020, that

he suffered back pain, which he believed was work-related.

BB argues it was unaware of Gonzalez’s alleged disability or that it affected his

ability to work. Gonzalez provided evidence refuting this. Gonzalez testified and stated

in his declaration that he informed Estrada he suffered from work-related back pain, and

that it was affecting his ability to work. Estrada also testified to these facts and that

Gonzalez requested to see a company doctor for his work-related injuries. Estrada further

testified she informed Layes and Mazzetti of her conversation with Gonzalez about his

work-related injuries. Estrada stated that the same day as her conversation with

Gonzalez, she drafted a statement summarizing the conversation and placed the

memorandum in a workers’ compensation file.

31 In paragraph 15 of Gonzalez’s declaration, he states he told Estrada on February 6,

2020, that he needed to be able to perform his job responsibilities slower and take more

breaks. Even if we disregard paragraph 15, there is other evidence showing that BB

knew about Gonzalez’s work-related injuries and physical disability, yet failed to provide

any reasonable accommodation for them. Gonzalez thus raised a triable issue as to his

fifth cause of action alleging failure to accommodate known disabilities.

BB argues summary adjudication should be granted because Gonzalez did not

request any accommodation. However, “[a]lthough it is the employee’s burden to initiate

the process, no magic words are necessary, and the obligation arises once the employer

becomes aware of the need to consider an accommodation.” (Gelfo v. Lockheed Martin

Corp. (2006) 140 Cal.App.4th 34, 62, fn. 22 (Gelfo); Scotch v. Art Institute of California

(2009) 173 Cal.App.4th 986, 1013 (Scotch).) Here, there is evidence that Gonzalez

initiated the process by reporting his work-related injuries to Estrada and requesting to

see a company doctor. BB did nothing to address Gonzalez’s injuries, which Gonzalez

reported were work-related. BB did not take any action to evaluate or treat his injuries,

or determine whether reasonable accommodations were necessary.

B. Sixth Cause of Action for Failure to Engage in Interactive Process

BB contends Gonzalez’s sixth cause of action, alleging failure to engage in the

interactive process, also fails because there is no evidence BB violated any duty to

engage in a timely, good faith interactive process to determine reasonable

accommodation, in violation of section 12940, subdivision (n). BB argues there is no

32 evidence that BB knew Gonzalez had a disability and the disability was not open,

obvious, and apparent to BB. (Doe v. Department of Corrections & Rehabilitation,

supra, 43 Cal.App.5th at p. 738.)

Section 12940, subdivision (n) provides that it is a violation of FEHA “[f]or an

employer . . . to fail to engage in a timely, good faith, interactive process with the

employee . . . to determine effective reasonable accommodations, if any, in response to a

request for reasonable accommodation by an employee . . . with a known physical or

mental disability or known medical condition.”

“The ‘interactive process’ required by the FEHA is an informal process with the

employee or the employee’s representative, to attempt to identify a reasonable

accommodation that will enable the employee to perform the job effectively. [Citation.]

Ritualized discussions are not necessarily required.” (Wilson v. County of Orange (2009)

169 Cal.App.4th 1185, 1195; Scotch, supra, 173 Cal.App.4th at p. 1013.) “The employee

must initiate the process unless the disability and resulting limitations are obvious.

‘Where the disability, resulting limitations, and necessary reasonable accommodations,

are not open, obvious, and apparent to the employer, . . . the initial burden rests primarily

upon the employee . . . to specifically identify the disability and resulting limitations, and

to suggest the reasonable accommodations.’” (Scotch, supra, at p. 1013; see also Taylor

v. Principal Financial Group, Inc. (5th Cir.1996) 93 F.3d 155, 165.) “Although it is the

employee’s burden to initiate the process, no magic words are necessary, and the

obligation arises once the employer becomes aware of the need to consider an

33 accommodation.” (Gelfo, supra, 140 Cal.App.4th at p. 62, fn. 22; Scotch, supra, at p.

1013.)

Liability for failure to accommodate “‘hinges on the objective circumstances

surrounding the parties’ breakdown in communication, and responsibility for the

breakdown lies with the party who fails to participate in good faith.’” (Scotch, supra, 173

Cal.App.4th at p. 1014; Gelfo, supra, 140 Cal.App.4th at p. 62, fn. 22.)

Here, there was sufficient evidence showing that Gonzalez had a work-related

injury that qualified under section 12940 as a disability, and that BB knew Gonzalez had

complained of suffering from work-related injuries. As to Gonzalez requesting a

reasonable accommodation, Gonzalez states in paragraph 15 of his declaration that he

requested seeing a company doctor, and that he be permitted to work more slowly and

take breaks when needed, but Estrada ignored his requests. Gonzalez also testified that

supervisor Omar Garcia knew about his injuries and that it would have been apparent to

Omar Garcia that Gonzalez’s injuries slowed him down with his work.

In addition, Estrada stated in her deposition testimony and memorandum

summarizing her conversation with Gonzalez on February 6, 2020, that Gonzalez came

into her office complaining about his back and wanting to see a doctor. Estrada testified

Gonzalez told her his back injury was from work-related injuries and activities. Estrada

reported her conversation with Gonzalez to Mazzetti and Layes “in case [BB] needed to

follow anything differently when it came to his job.” Estrada added, “To see if his job

duties needed to be altered or anything . . . .” Even without paragraph 15, the evidence

34 was sufficient to raise a triable issue as to whether BB violated FEHA by failing to

engage in a timely, good faith, interactive process with Gonzalez to determine effective

reasonable accommodations for him. (§ 12940, subd. (n).)

C. Seventh Cause of Action for Retaliation

BB contends the trial court erred in denying summary adjudication of the seventh

cause of action, alleging retaliation for protected activity under FEHA. We disagree.

Gonzalez alleges in the seventh cause of action for retaliation that BB retaliated

against him “for seeking to exercise rights guaranteed under FEHA and/or opposing

defendants’ failure to provide such rights, including rights of reasonable accommodation,

rights of interactive process, leave rights, and/or the right to be free of discrimination, in

violation of Government Code section 12940(h).”

The elements of a retaliation cause of action in violation of section 12940,

subdivision (h), are: “(1) the employee’s engagement in a protected activity . . . ; (2)

retaliatory animus on the part of the employer; (3) an adverse action by the employer; (4)

a causal link between the retaliatory animus and the adverse action; (5) damages; and (6)

causation.” (Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 713.)

Proof of the second and fourth elements “is likely to depend on circumstantial

evidence, since they consist of subjective matters only the employer can directly

know . . . . Given the resulting difficulties of proof, the courts have fashioned a special

presumption shifting the burden of production—but not persuasion—to the employer

upon a prescribed showing by the plaintiff. Specifically, the employee ‘may raise a

35 presumption of discrimination by presenting a “prima facie case,” the components of

which vary with the nature of the claim, but typically require evidence that “(1) [the

plaintiff] was a member of a protected class [or engaged in a protected activity], (2) he

was qualified for the position he sought or was performing competently in the position he

held, (3) he suffered an adverse employment action, such as termination, demotion, or

denial of an available job, and (4) some other circumstance suggests discriminatory [or

retaliatory] motive. [Citations.]” [Citation.] A showing to this effect gives rise to a

presumption of discrimination which, if unanswered by the employer, is mandatory—it

requires judgment for the plaintiff.” (Mamou v. Trendwest Resorts, Inc., supra, 165

Cal.App.4th at pp. 713-714.)

Gonzalez provided evidence, as discussed above regarding his other causes of

action, that he (1) is a member of a protected class or engaged in protected activity, (2)

was qualified for his job position, and (3) suffered adverse employment action. Gonzalez

was over the age of 50 and had physical disabilities, he was qualified for his job position,

and he suffered adverse employment actions, including demotion, disciplinary work

notices, and termination.

Gonzalez also provided evidence of retaliation and a causal link to adverse

employment action. There is evidence Gonzalez told Estrada in February 2020, that he

suffered from work-related injuries, and within the following 5 weeks, he received two

disciplinary work notices, and a third one on March 11, 2020, resulting in his immediate

termination. There was also evidence that the February 10, 2020, and March 4, 2020,

36 work notices were unfounded or were for a minor act. There is also a triable issue as to

whether Gonzalez’s termination was in violation of BB’s disciplinary policies and

procedures stated in BB’s employee handbook. We thus conclude there was sufficient

evidence raising a triable issue as to the seventh cause of action for retaliation.

D. Eighth Cause of Action for Failure to Prevent Discrimination and Retaliation

The trial court also did not err in denying summary adjudication of the eighth

cause of action for failure to prevent discrimination, harassment, and retaliation, in

violation of section 12940, subdivision (k). BB alleges in the eighth cause of action that

BB failed to prevent its employees from discriminating against Gonzalez based on his

age, disability, and participation in protected activities.

Section 12940, subdivision (k) provides that, with a few exceptions which are

inapplicable, it is “an unlawful employment practice for an employer “to fail to take all

reasonable steps necessary to prevent discrimination and harassment from occurring.”

(§ 12940, subd. (k).) “The employer’s duty to prevent harassment and discrimination is

affirmative and mandatory. (Gov. Code, § 12940, subds. (j)(1), & (k).) Prompt

investigation of a discrimination claim is a necessary step by which an employer meets its

obligation to ensure a discrimination-free work environment.” (Northrop Grumman

Corp. v. Workers' Comp. Appeals Bd. (2002) 103 Cal.App.4th 1021, 1035.) Evidence of

discrimination is required for finding an employer has violated section 12940,

subdivision (k). (Trujillo v. North Cnty. Transit Dist. (1998) 63 Cal.App.4th 280, 289.)

37 As concluded above regarding the discrimination and retaliation causes of action,

there is sufficient evidence to raise a triable issue regarding discrimination and retaliation.

There is also evidence BB knew Gonzalez was over the age of 60, had reported work-

related injuries, was not sent to a company doctor, and was not accommodated in any

way for his reported injuries. Also, BB was aware that, although Gonzalez had a lengthy

history of good job performance lacking in discipline prior to 2019 and only a few recent

work notices, a couple of which Gonzalez refuted, he was immediately terminated for an

act that was not listed in the employee handbook as being subject to immediate

termination, or the type of conduct warranting deviating from BB’s standard written

discipline and termination policies and procedures. Evidence of these facts and

circumstances was sufficient to raise a triable issue of fact as to Gonzalez’s eighth cause

of action for failure to prevent discrimination, harassment, and retaliation.

E. Ninth Cause of Action for Violation of Labor Code Section 6310

BB argues the trial court erred in denying summary adjudication of Gonzalez’s

ninth cause of action for violation of Labor Code section 6310 by wrongfully terminating

Gonzalez after discriminating and retaliating against him based on Gonzalez reporting his

work-related injuries, and filing a worker’s compensation claim against BB. A violation

of Labor Code section 6310 requires proof that (1) the employee engaged in a protected

activity; (2) the employer subjected the employee to an adverse employment action; and

(3) a causal link between the two. (St. Myers v. Dignity Health (2019) 44 Cal.App.5th

301, 314.)

38 Gonzalez provided sufficient evidence of these three elements. He provided

evidence that he suffered work-related injuries and reported them to BB. Within five

weeks of Gonzalez reporting his back pain his work-related injuries in February 2020,

BB terminated Gonzalez. Evidence of these facts is sufficient to raise a triable issue as to

whether BB’s stated reason for Gonzalez’s termination was pretextual. There thus is a

triable issue as to whether BB violated Labor Code section 6310 by discriminating and

retaliating against him based on Gonzalez reporting his work-related injuries.

F. Tenth Cause of Action for Wrongful Termination

BB contends the trial court erred in denying summary adjudication of the tenth

cause of action for wrongful termination in violation of public policy. Gonzalez’s tenth

cause of action is derivative of his other causes of action alleging FEHA violations, such

as termination based on age and disability discrimination. Gonzalez alleges in the tenth

cause of action that BB terminated his employment in part because of his protected status

(age, disability, and making good faith complaints), in violation of FEHA, the California

Constitution, and Labor Code section 1102.5.

Age, disability, and other forms of discrimination in employment are prohibited by

both state and federal law. (§ 12940, subd. (a); 42 U.S.C. § 2000e et seq.) The right to

hold employment free of discrimination on the basis of various protected classifications is

a civil right. (§ 12921, subd. (a).) The prohibition against such workplace discrimination

is a fundamental public policy. The express purpose of FEHA is to provide effective

remedies that will eliminate such discriminatory practices. (§ 12920; Northrop Grumman

39 Corp. v. Workers’ Comp. Appeals Bd., supra, 103 Cal.App.4th at p. 1035.) As such,

“employers must ‘take all reasonable steps necessary to prevent discrimination and

harassment from occurring.’ [Citations.]” (Northrop Grumman Corp. v. Workers’ Comp.

Appeals Bd., supra, at p. 1035; Trujillo v. North County Transit Dist., supra, 63

Cal.App.4th at p. 286.)

As discussed in preceding sections of this opinion, there is evidence raising triable

issues of fact as to whether that BB terminated Gonzalez based on age and disability

discrimination, and committed other violations of FEHA. Such evidence is sufficient to

raise a triable issue of fact as to whether BB committed wrongful termination of

Gonzalez in violation of public policy. The trial court thus did not err in denying

summary adjudication of the tenth cause of action.

G. Eleventh Cause of Action for Violating Labor Code section 1102.5

We likewise conclude the trial court properly denied summary adjudication of the

eleventh cause of action for violating Labor Code section 1102.5 (commonly known as

the whistleblower statute). That statute prohibits employer retaliation against any

employee for disclosing or complaining of an employer’s illegal acts. Gonzalez alleges

BB retaliated against him for reporting that BB unlawfully discriminated against him

based on his age, disability, and making good faith complaints.

As discussed regarding Gonzalez’s other causes of action, there is evidence

showing BB terminated Gonzalez based on age and disability discrimination, and because

he complained of work-related injuries and notified BB he was filing a workers’

40 compensation claim against BB. Such evidence is sufficient to raise a triable issue of fact

as to whether BB retaliated against Gonzales in violation of Labor Code section 1102.5.

The trial court thus did not err in denying summary adjudication of the eleventh cause of

action.

VIII.

DISPOSITION

BB’s request for a writ of mandate, directing the trial court to vacate its order

denying summary judgment and summary adjudication of the first, third, and fifth

through eleventh causes of action, is denied. Gonzalez is awarded his costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON J.

We concur:

RAMIREZ P. J.

FIELDS J.