NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS SEP 24 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CORINNA RUIZ, No. 18-55259

Plaintiff-Appellant, D.C. No. 3:16-cv-02993-CAB-BGS v.

PARADIGMWORKS GROUP, INC., a MEMORANDUM* Delaware corporation; CORNERSTONE SOLUTIONS, INC., DBA Cornerstone Solutions, Inc. - Job Corps Services, a Georgia corporation,

Defendants-Appellees.

Appeal from the United States District Court for the Southern District of California Cathy Ann Bencivengo, District Judge, Presiding

Argued and Submitted September 13, 2019 Pasadena, California

Before: RAWLINSON, OWENS, and BENNETT, Circuit Judges.

Corinna Ruiz appeals from the district court’s summary judgment in favor of

defendants ParadigmWorks Group, Inc. (“PGI”) and Cornerstone Solutions, Inc.

(“Cornerstone”) in her employment action under the Americans with Disabilities

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Act (“ADA”) and California’s Fair Employment and Housing Act (“FEHA”). We

review de novo a district court’s decision to grant summary judgment. Folkens v.

Wyland Worldwide, LLC, 882 F.3d 768, 773 (9th Cir. 2018). As the parties are

familiar with the facts, we do not recount them here. We reverse and remand.

1. To succeed on her disability claims under the ADA and the FEHA,

Ruiz must show she is a “qualified individual with a disability.” Bates v. United

Parcel Serv., Inc., 511 F.3d 974, 988-89, 999 (9th Cir. 2007) (en banc). Under

both the ADA and the FEHA, a “qualified individual” is an individual with a

disability who, with or without “reasonable accommodation,” can perform the

essential functions of the job. Id. at 989, 999.

To avoid summary judgment, the plaintiff/employee need only show that an

“‘accommodation’ seems reasonable on its face, i.e., ordinarily or in the run of

cases.” U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 401 (2002). “Once the

plaintiff has made this showing, the defendant/employer then must show special

(typically case-specific) circumstances that demonstrate undue hardship in the

particular circumstances.” Id. at 402.

Under the ADA, “an extended medical leave, or an extension of an existing

leave period, may be a reasonable accommodation if it does not pose an undue

hardship on the employer.” Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1247

(9th Cir. 1999). Likewise, under the FEHA, “a finite leave can be a reasonable

2 accommodation . . . , provided it is likely that at the end of the leave, the employee

would be able to perform his or her duties.” Hanson v. Lucky Stores, Inc., 87 Cal.

Rptr. 2d 487, 494 (Ct. App. 1999). However, “[r]easonable accommodation does

not require the employer to wait indefinitely for an employee’s medical condition

to be corrected.” Id. (citation omitted).

Here, viewing the evidence in the light most favorable to Ruiz, there is a

genuine dispute of material fact regarding whether her requested accommodation

of additional leave was “reasonable.” Ruiz’s doctor provided a finite estimate of

five weeks, and “the mere fact that a medical leave has been repeatedly extended

does not necessarily establish that it would continue indefinitely.” Nadaf-Rahrov

v. Neiman Marcus Grp., Inc., 83 Cal. Rptr. 3d 190, 222 (Ct. App. 2008). Further,

even if Ruiz ultimately needed to extend her medical leave longer, a broken ankle

is the type of injury from which people generally heal in the foreseeable future.

See Humphrey v. Mem’l Hosps. Ass’n, 239 F.3d 1128, 1136 (9th Cir. 2001) (stating

that “the ADA does not require an employee to show that a leave of absence is

certain or even likely to be successful to prove that it is a reasonable

accommodation,” and an employee only needs “to satisfy the minimal requirement

that a leave of absence could plausibly have enabled [her] adequately to perform

her job”); Jensen v. Wells Fargo Bank, 102 Cal. Rptr. 2d 55, 68 (Ct. App. 2000)

(“Holding a job open for a disabled employee who needs time to recuperate or heal

3 is in itself a form of reasonable accommodation and may be all that is required

where it appears likely that the employee will be able to return to an existing

position at some time in the foreseeable future.”).

Therefore, we conclude that the district court erred in granting summary

judgment on Ruiz’s disability claims on the ground that her request for five more

weeks of leave was not a “reasonable” accommodation. On remand, the district

court may address in the first instance whether Ruiz’s additional leave request

would have posed an “undue hardship” for PGI.

2. The district court granted summary judgment on Ruiz’s FEHA

retaliation claim on the ground that “protected activity does not include a mere

request for reasonable accommodation.” Nealy v. City of Santa Monica, 184 Cal.

Rptr. 3d 9, 25 (Ct. App. 2015) (citing Rope v. Auto-Chlor Sys. of Wash., Inc., 163

Cal. Rptr. 3d 392, 407 (Ct. App. 2013)). However, as PGI concedes, the district

court erred because it relied on outdated law. After Nealy and prior to Ruiz’s

termination and lawsuit, the California Legislature amended the FEHA, making it

unlawful “[f]or an employer . . . to . . . retaliate or otherwise discriminate against a

person for requesting accommodation under this subdivision, regardless of whether

the request was granted.” Cal. Gov’t Code § 12940(m)(2); see also Moore v.

Regents of the Univ. of Cal., 206 Cal. Rptr. 3d 841, 865-66 (Ct. App. 2016).

4 Therefore, we also reverse the district court’s summary judgment on Ruiz’s

retaliation claim under the FEHA. On remand, the district court may address in the

first instance PGI’s alternative arguments in favor of summary judgment.

3. Given the foregoing, we also reverse the district court’s decision with

respect to Ruiz’s failure to prevent discrimination and wrongful termination claims

because the district court granted summary judgment on these claims based on its

erroneous determination that PGI was entitled to summary judgment on the

disability and retaliation claims. We do not address Ruiz’s intentional infliction of

emotional distress claim because she waived it. See Milne v. Hillblom, 165 F.3d

733, 736 n.6 (9th Cir. 1999).

4. After briefing in this appeal, Cornerstone filed a notice of bankruptcy

under Chapter 7 in the United States Bankruptcy Court for the Northern District of

Georgia, No. 19-54182. However, the bankruptcy court docket reveals that

Cornerstone’s bankruptcy proceedings have been closed.

Because the district court granted summary judgment for Cornerstone for the

same reasons it granted summary judgment for PGI, we also reverse the district

court’s judgment in favor of Cornerstone. On remand, the district court may

address in the first instance Cornerstone’s alternative arguments in favor of

summary judgment.

REVERSED AND REMANDED.

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