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Santillan v. USA Waste of California, Inc.

United States Court of Appeals, Ninth Circuit

April 7, 2017

Gilberto Santillan, an individual, Plaintiff-Appellant,
v.
USA Waste of California, Inc., a Delaware Corporation, Defendant-Appellee.

          Argued and Submitted December 7, 2016 Pasadena, California

         Appeal from the United States District Court for the Central District of California D.C. No. 2:14-cv-00335-AB-JCG Andre Birotte, Jr., District Judge, Presiding

          Holly Noelle Boyer (argued), and Andrew N. Chang, Esner Chang & Boyer, Pasadena, California; Louanne Masry and John C. Taylor, Taylor & Ring LLP, Los Angeles, California; for Plaintiff-Appellant.

          Christopher J. Boman (argued), Fisher & Phillips LLP, Irvine, California; Kristen J. Nesbit, Fisher & Phillips LLP, Los Angeles, California; for Defendant-Appellee.

          Before: Harry Pregerson, Jacqueline H. Nguyen, and John B. Owens, Circuit Judges.

         SUMMARY[*]

         Employment Discrimination

         The panel reversed the district court's grant of summary judgment in favor of USA Waste of California, Inc. on Gilberto Santillan's wrongful termination claim under California law based on age discrimination and retaliation; affirmed the district court's denial of Santillan's request for leave to amend the complaint; and remanded for further proceedings.

         The panel held that the district court erred in holding that Santillan failed to establish a prima facie age discrimination claim. The panel further held that USA Waste failed to rebut the presumption of unlawful discrimination because it did not offer a legitimate reason for firing Santillan when USA Waste's only proffered reason was Santillan's failure to provide proof of his legal right to work in the United States as required by the Immigration Reform and Control Act of 1986 (IRCA). Specifically, the panel held that IRCA exempted Santillan from the proof of employment eligibility that USA Waste demanded. The panel also held that making Santillan's reinstatement contingent upon such proof would violate California public policy.

         The panel held that Santillan established a prima facie retaliation case and a presumption of unlawful retaliation. Specifically, the panel held that the district court erred in concluding that Santillan did not engage in protected activity when he used an attorney to negotiate his reinstatement. The panel held that California public policy protected Santillan's right to representation by an attorney to negotiate the terms and conditions of employment. The panel further held that Santillan established a nexus between his termination and his protected activity where USA Waste fired Santillan because he was represented by his attorney at the settlement agreement negotiations.

         Finally, the panel held that the district court did not abuse its discretion by denying Santillan's request for leave to amend the complaint. The panel held that Santillan failed to show he was diligent in seeking to amend the complaint because his request to amend came eight months after the deadline for making such a request.

          OPINION

          PREGERSON, Circuit Judge:

         INTRODUCTION

         This case arises from a wrongful employment termination dispute between Gilberto Santillan, a 53-year-old garbage truck driver, and his employer of 32 years, USA Waste of California, Inc. ("USA Waste"). Santillan filed this action against USA Waste alleging a wrongful termination claim based on age discrimination and retaliation. The district court granted summary judgment in favor of USA Waste.

         We have jurisdiction under 28 U.S.C. § 1291. We reverse. We hold that the district court erred by granting summary judgment in favor of USA Waste because (1) Santillan established a prima facie case under both his age discrimination and retaliation theories; and (2) USA Waste failed to introduce any evidence that it had a legitimate reason for firing him.

         We also hold that the district court did not abuse its discretion when it denied Santillan's oral request for leave to amend the complaint eight months after the filing deadline.

         FACTUAL BACKGROUND

         Gilberto Santillan started working for USA Waste as a residential garbage truck driver in 1979.[1] For 32 years, he serviced the community of Manhattan Beach, California.

         Exemplary Employee

         In March 2011, USA Waste's garbage collection contract with the City of Manhattan Beach was up for renewal. In presenting its case to the Manhattan Beach City Council, USA Waste specifically highlighted Santillan's exemplary service to the community. After hearing from Manhattan Beach homeowners who praised Santillan's exemplary service to their community, the Manhattan Beach City Council renewed USA Waste's contract.

         December 5, 2011, Termination

         Santillan was rarely disciplined during his first 30 years at USA Waste. But this situation changed in January 2009, after USA Waste assigned Steve Kobzoff as Santillan's new Manhattan Beach route manager.

         Between January 2009 and July 2010, Kobzoff attempted to discipline Santillan six times. The parties dispute whether these "write ups" violated the procedural protections afforded by USA Waste's collective bargaining agreement. USA Waste does not defend its termination of Santillan based on these six disputed write-ups.

         On December 5, 2011, USA Waste fired Santillan for the first time. USA Waste contends that it fired Santillan then because he had four accidents in a 12-month period for which Kobzoff disciplined Santillan using the procedures required by USA Waste's collective bargaining agreement. Santillan disputes both that he had four accidents and that USA Waste followed the procedures required by the collective bargaining agreement.

         Another employee, Janson Vartanian, replaced Santillan. At summary judgment, USA Waste submitted a declaration from its human resources employee Maria Diaz stating that the employee who replaced Santillan was "over 40 years of age" and had eleven years experience driving garbage trucks.

         Santillan testified that he was one of five older Spanish-speaking employees fired or suspended once Kobzoff was assigned as USA Waste's Manhattan Beach route manager. Although Santillan could not recall the names of the four other Spanish-speaking employees, Kobzoff corroborated Santillan's statement by identifying Jesus Zamora and Rojilio Mejia as two such Spanish-speaking employees who were terminated.

         Public Outcry

         On December 7, 2011, pursuant to the collective bargaining agreement and with the assistance of his attorney, Santillan filed a formal grievance against USA Waste challenging his December 5, 2011, termination.

         After Santillan's formal grievance was filed, USA Waste received hundreds of letters from Manhattan Beach homeowners who live in the area served by Santillan, demanding that USA Waste reinstate Santillan's employment. In their letters, the homeowners reminded USA Waste that it succeeded in securing the renewal of its important garbage collection contract with Manhattan Beach in March 2011, because the homeowners came out in droves to support Santillan, their "First Class" residential garbage truck driver.

         The homeowners demanded that USA Waste reinstate Santillan because he "positively impacted every family on [the] street, " and was "extremely helpful, " going above and beyond his responsibilities. One homeowner made it a point to introduce her sons to Santillan because he "works hard, and has a beautiful spirit and attitude, " and "in terms of class and integrity and a radiant personality there is no one in the world who can hold a candle to Gilberto [Santillan]." In contrast, days after Santillan was fired, Manhattan Beach residents reported being frustrated finding their trash cans emptied at dusk and left "sitting in[] the street - creating a hazard to oncoming cars."

         The homeowners' sentiments were published in a local newspaper, which also included a story from a homeowner whose son dressed up as Santillan for Halloween because he considers Santillan "a hero."

         The May 2012, Settlement Agreement

         On May 17, 2012, in the presence of USA Waste's attorney, Santillan's attorney, and a union representative, USA Waste and Santillan signed a "Settlement Agreement and Last Chance Agreement" ("Settlement Agreement"), in which USA Waste agreed to reinstate Santillan's employment if he passed the California Department of Transportation drug test and physical exam, a criminal background check, and "e-Verify."[2] In exchange, Santillan agreed to dismiss the December 7, 2011, grievance he filed against USA Waste.

         USA Waste Fails to Reinstate Santillan

         Santillan successfully completed the California Department of Transportation drug test, the physical exam, and the criminal background check.

         In response, USA Waste's human resources employee Maria Diaz sent Santillan a letter informing him that his first day back at work would be July 16, 2012. The letter also told Santillian, "you will need to complete an I-9 form and show documentation of your right to work in the U.S." Diaz's letter to Santillan was written in English, even though USA Waste was aware that Santillan communicated in Spanish. The letter only included the fifth page of the employment ...


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