and Submitted December 7, 2016 Pasadena, California
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
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
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.
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
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
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.
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.
PREGERSON, Circuit Judge:
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
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
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.
Santillan started working for USA Waste as a residential
garbage truck driver in 1979. For 32 years, he serviced the
community of Manhattan Beach, California.
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
5, 2011, Termination
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.
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.
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
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.
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.
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.
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.
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
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."
May 2012, Settlement Agreement
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." In exchange, Santillan agreed to dismiss
the December 7, 2011, grievance he filed against USA Waste.
Waste Fails to Reinstate Santillan
successfully completed the California Department of
Transportation drug test, the physical exam, and the criminal
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