facts of her proposed interference claim were already included in the original

complaint; and (2) Chipotle did not produce documents that supported her

interference claim until May 2018. The district court characterized Cortez’s

arguments as contradictory and focused on Cortez’s diligence. On appeal, Cortez

also argues that leave to amend should have been granted because Chipotle would

not be prejudiced by the proposed amendment. We affirm the denial of Cortez’s

motion for leave to amend. Because the facts underlying the proposed interference

claim were already known when Cortez filed her complaint, and she filed her

motion months after the scheduling order’s deadline, the district court did not

abuse its discretion in finding that Cortez did not establish good cause to extend

the deadline.

2 We review for abuse of discretion the district court’s denial of a motion to extend a Rule 16 scheduling order’s filing deadlines and for leave to amend. See DRK Photo v. McGraw-Hill Glob. Educ. Holdings, LLC, 870 F.3d 978, 982, 989 (9th Cir. 2017).

4 3. Cortez argues that the district court abused its discretion by denying her

motion for a new trial.3 First, she argues the court should have granted a new trial

because it issued erroneous jury instructions requiring her to demonstrate that her

request and leave were a “substantial motivating factor” in her termination. She

argues that she only needed to demonstrate that the leave was “a negative factor”

to prove interference. Cortez, however, never proposed a proper jury instruction

related to her interference theory. Instead, she merely tried to substitute the

causation element in the jury instruction for her Wrongful Termination in Violation

of Public Policy claim for a similar causation element to the one she asserts here.

Because Cortez failed to propose a proper interference jury instruction, it was not

an abuse of discretion for the district court to deny her a new trial to provide the

jury instruction she now proposes.

4. FEHA makes it unlawful for an employer to “fail to make reasonable

accommodation for the known physical . . . disability of an . . . employee.” Cal.

Gov’t Code § 12940(m)(1). Following the jury’s verdict, Cortez also sought a new

trial on her Failure to Provide Reasonable Accommodation claim, asserting that

there “was no evidence at trial to establish that Chipotle accommodated Cortez.”

Given that David Shadix was aware that Cortez “had some [mental health] issues,”

3 We review for abuse of discretion the district court’s ruling on Cortez’s motion for a new trial. Kode v. Carlson, 596 F.3d 608, 611–12 (9th Cir. 2010) (per curiam).

5 however, the jury could have logically inferred that the leave was intended to

accommodate both Cortez’s physical and mental health issues. As a result, there is

sufficient evidence to support the jury’s verdict. We affirm the denial of Cortez’s

motion for a new trial on her failure to reasonably accommodate claim.

Chipotle’s Cross-Appeal, No. 20-55153

5. The district court granted summary judgment to Cortez on her claim

under California Labor Code § 1198.5. That statute provides that “[e]very current

and former employee, or his or her representative, has the right to inspect and

receive a copy of the personnel records that the employer maintains relating to the

employee’s performance or to any grievance concerning the employee” within 30

calendar days following receipt of a written request. Id. § 1198.5(a); see also id.

§ 1198.5(b)(1). When Chipotle responded to Cortez’s initial request for a copy of

her personnel records, it did not turn over Cortez’s incomplete 2015 and 2016

performance reviews. These reviews were not produced until February 20, 2018.

Although these documents were in Shadix’s possession, they were clearly created

as part of his management duties at Chipotle, and thus qualified as personnel

records. We affirm the grant of summary judgment to Cortez on her claim under §

1198.5.

Chipotle’s Appeal, No. 19-56354

6 6. FEHA makes it unlawful for 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 or applicant with a known physical . . . disability

or known medical condition.” Cal. Gov’t Code § 12940(n). Cortez alleged that

Chipotle violated this statute by failing to engage in the interactive process. The

jury, however, found that Cortez did not “request that Chipotle make reasonable

accommodation for [her mental health] condition” and returned a verdict in favor

of Chipotle. We agree with Chipotle that the district court abused its discretion in

granting a new trial on this claim.

In granting Cortez’s motion for a new trial, the court reasoned that its

instruction for this claim, which tracked the Judicial Council of California Civil

Jury Instructions (CACI) No. 2546, was incomplete because it did not include all

the events listed in Cal. Code Regs. tit. 2, § 11069(b) that require an employer to

initiate the interactive process.4 Because Cortez had proposed a jury instruction

that included the § 11069(b) events, the court determined that it prejudicially erred

in failing to give an instruction that listed those events. The claim presented to the

4 We review de novo the district court’s legal determinations. See Wilkerson v. Wheeler, 772 F.3d 834, 838 (9th Cir. 2014). “[A] district court abuses its discretion when it makes an error of law. . . .” Knight v. Kenai Peninsula Borough Sch. Dist., 131 F.3d 807, 816–17 (9th Cir. 1997).

7 jury, however, was based on Chipotle’s failure to engage in the interactive process

in violation of § 12940(n), not one based on its failure to initiate the interactive

process in violation of § 11069(b).

By combining the statutory and regulatory standards, the court effectively

extended the reach of § 12940(n) to events not contained in the statute, such as

where an “employee or the employee’s health care provider indicates that further

accommodation is still necessary.” Cal. Code Regs. tit. 2, § 11069(b)(3) (emphasis

added). FEHA, however, only creates an obligation to engage in the interactive

process with an employee “in response to a request for reasonable accommodation

by an employee.” Cal. Gov’t Code § 12940(n) (emphasis added). To interpret §

11069(b) to expand the reach of § 12940(n) creates a new source of potential

liability under the FEHA and doing so would inappropriately “alter or amend the

[FEHA] or enlarge or impair its scope.” Morris v. Williams, 433 P.2d 697, 707

(Cal. 1967) (en banc). The district court erred in its interpretation of § 11069(b).

Because § 12940(n) expressly requires an employee to request a reasonable

accommodation, and the court’s jury instruction properly set forth that

requirement, the instruction was not erroneous. We therefore reverse the district

court’s order granting a new trial on Cortez’s claim that Chipotle failed to engage

in the interactive process.

8 REVERSED in part and AFFIRMED in part. The parties shall bear their own

costs on appeal.

9