FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GILBERTO SANTILLAN, an

individual,

Plaintiff-Appellant,

v.

USA WASTE OF CALIFORNIA,

INC., a Delaware Corporation,

No. 15-55238

D.C. No.

Filed April 7, 2017

Before: Harry Pregerson, Jacqueline H. Nguyen,

and John B. Owens, Circuit Judges.

Opinion by Judge Pregerson

SANTILLAN V. USA WASTE OF CAL.2

SUMMARY

*

Employment Discrimination

The panel reversed the district court’s grant of summary

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

concluding that Santillan did not engage in protected activity

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

SANTILLAN V. USA WASTE OF CAL. 3

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

because his request to amend came eight months after the

deadline for making such a request.

COUNSEL

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.

Angeles, California; for Defendant-Appellee.

SANTILLAN V. USA WASTE OF CAL.4

OPINION

PREGERSON, Circuit Judge:

truck driver, and his employer of 32 years, USA Waste of

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

residential garbage truck driver in 1979.

serviced the community of Manhattan Beach, California.

1

Unless otherwise indicated, this factual background contains facts

that either are undisputed or USA Waste has conceded are immaterial and

therefore do not foreclose summary judgment.

SANTILLAN V. USA WASTE OF CAL. 5

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 their community, the Manhattan Beach City

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

by USA Waste’s collective bargaining agreement. USA

On December 5, 2011, USA Waste fired Santillan for the

by USA Waste’s collective bargaining agreement. Santillan

disputes both that he had four accidents and that USA Waste

SANTILLAN V. USA WASTE OF CAL.6

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.

assigned as USA Waste’s Manhattan Beach route manager.

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

demanding that USA Waste reinstate Santillan’s employment.

because the homeowners came out in droves to support

Santillan, their “First Class” residential garbage truck driver.

Santillan because he “positively impacted every family on

SANTILLAN V. USA WASTE OF CAL. 7

[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

emptied at dusk and left “sitting in[] the street – creating a

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,

and Last Chance Agreement” (“Settlement Agreement”), in

Verify.”

The term “e-Verify” was not defined in the Settlement Agreement.

Our case law has described “e-Verify” as an “electronic verification

system” that is “voluntary” under federal law and is used “to check the

work-authorization status of employees through federal records.”

Chicanos Por La Causa, Inc. v. Napolitano, 558 F.3d 856, 860 (9th Cir.

2009), aff’d, Chambers of Commerce of U.S. v. Whiting, 563 U.S. 582

(2011). USA Waste argues that this term meant Santillan agreed to abide

by a regulation under the Immigration Reform and Control Act of 1986

SANTILLAN V. USA WASTE OF CAL.8

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,

In response, USA Waste’s human resources employee

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

eligibility verification Form I-9 (“Form I-9”), which was

printed in English even though it was available in Spanish.

Santillan reported to work on July 16, 2012, with his

I-9. However, Diaz informed Santillan that he also needed a

(“IRCA”) addressing the documentation that new employees submit to

show their authorization to work in the United States. However, the IRCA

The operative version of the Form I-9 was five pages when USA

Waste fired Santillan on July 24, 2012. See Form I-9 Employment

Eligibility Verification, OMB No. 1615-0047 (expired 08/31/12).

SANTILLAN V. USA WASTE OF CAL. 9

work authorization number and its expiration date. Santillan

did not have that information with him. Diaz asked Santillan

to bring that information to work the next day.

On each of the following two days, Santillan attempted to

provide the requested information by giving Diaz a letter with

complete electronic employment verification of his work

contact.” Six days later, on July 24, 2012, USA Waste sent

a letter to Santillan informing him that USA Waste was firing

him because he did not provide “proof of your legal right to

work in the United States within three days of hire, as

required by the Immigration Control and Reform Act of 1986,

[sic][and] the Settlement Agreement.”

Santillan advanced two different theories for this claim based

USA Waste argues that it needed Santillan’s information within

three days because the IRCA requires that an employer complete the

verification of a new employee’s work authorization status within the new

employee’s first three days of work. See 8 C.F.R. § 274a.2(b)(1)(ii).

However, as discussed below, Santillan was exempt from this regulation

because he was continuing his employment. See discussion, infra, Part

II.B.1.

SANTILLAN V. USA WASTE OF CAL.16

Schechner v. KPIX-TV, 686 F.3d 1018, 1023 (9th Cir. 2012)

(holding that an employee can establish a prima facie age

discrimination case with evidence that his or her replacement

was substantially younger with equal or inferior

qualifications); see also France v. Johnson, 795 F.3d 1170,

1174 (9th Cir. 2015) (age difference of ten years or more

528, 530, 533 (9th Cir. 1981) (replacing a 54-year-old

For the two reasons discussed above, the district court

overlooked “the flexibility these cases require and erred in

concluding that” Santillan failed to establish a prima facie

age discrimination case. Nidds, 113 F.3d at 917. Because

Santillan has established a prima facie age discrimination

case, there is “a presumption that [USA Waste] unlawfully

discriminated against [him].” Id. (citation omitted); see also

USA Waste to rebut this presumption.

contrast, Diaz limited her description of Vartanian to the fact that he was

“over forty years old” and had worked as a residential garbage truck driver

for eleven years. That Diaz was aware of Vartanian’s age but chose not

to disclose more detail supports the inference that there exists a potentially

significant age gap between Santillan and Vartanian.

SANTILLAN V. USA WASTE OF CAL. 17

B. USA Waste failed to rebut the presumption of

Under McDonnell Douglas’s second prong, USA Waste

bore the burden to produce admissible evidence of a

for firing Santillan in July 2012 was that his “reinstatement

However, USA Waste cannot rely on the IRCA or the

Settlement Agreement to establish that it is entitled to

summary judgment as a matter of law because, as explained

below: (1) the IRCA exempts Santillan from the proof of

employment eligibility that USA Waste demanded; and

(2) making Santillan’s reinstatement contingent upon such

The IRCA requires employers review certain documents

process, employers review certain documents specified by

statute to attest to the new employee’s employment eligibility

different documents than are required under [the IRCA] or

SANTILLAN V. USA WASTE OF CAL.18

refus[e] to honor documents tendered that on their face

reasonably appear to be genuine,” as doing so is an “unfair

immigration-related employment practice.” 8 U.S.C.

§ 1324b(a)(6); see also Rivera v. NIBCO, Inc., 364 F.3d

1057, 1073 (9th Cir. 2004).

from providing the employment eligibility documents

termination . . . resolved through reinstatement or

settlement.” 8 C.F.R. § 274a.2(b)(1)(viii)(A)(5).

8 C.F.R. § 274a.2(b)(1)(viii)(A)(5) (emphasis added).

SANTILLAN V. USA WASTE OF CAL. 19

Second, a different IRCA “grandfather” provision

exempts employees hired before November 7, 1986, from the

employment eligibility verification requirements applicable

at the hiring stage. Maka v. I.N.S., 904 F.2d 1351, 1360 (9th

Cir. 1990); see also 8 U.S.C. § 1324a(a)(4); 8 C.F.R.

§ 274a.7(a)(1). USA Waste hired Santillan in 1979, and even

employee. See 8 C.F.R. § 274a.2(b)(1)(viii)(A)(5). Thus,

argues that “the law” required Santillan to provide in three

days the employment eligibility documents that USA Waste

demanded. But that is not what the law required, and an

employer’s incorrect view of the law is not a legitimate

reason for firing an employee.

within three days of his reinstatement was permitted by the

language, is “either void or unenforceable.” Akopyan v. Wells

Fargo Home Mortg., Inc., 215 Cal. App. 4th 120, 135–36 (Ct.

SANTILLAN V. USA WASTE OF CAL.20

several California statutes. Therefore, the e-Verify provision

in the Settlement Agreement was unenforceable.

California provides that “[a]ll protections, rights, and

remedies available under state law, except any reinstatement

remedy prohibited by federal law,

11

employed, in this state.” Cal. Lab. Code § 1171.5(a)

12

California “statutes leave no room for doubt about this

state’s public policy with regard to the irrelevance of

immigration status in enforcement of state labor,

employment, civil rights, and employee housing laws.”

Hernandez v. Paicius, 109 Cal. App. 4th 452, 460 (Ct. App.

2003), disapproved of on other grounds by People v.

Freeman, 47 Cal. 4th 993 (2010). Therefore, under

Santillan’s reinstatement remedy contingent upon verification

11

is not prohibited by federal law because it was the result of the Settlement

Agreement. See 8 C.F.R. § 274a.2(b)(1)(viii)(A)(5).

12

(“[N]o inquiry shall be permitted into a person’s immigration status except

where the person seeking to make this inquiry has shown by clear and

convincing evidence that this inquiry is necessary in order to comply with

federal immigration law.”).

SANTILLAN V. USA WASTE OF CAL. 21

Because neither the IRCA nor the Settlement Agreement

justified firing Santillan, USA Waste failed to meet its burden

to show it had a legitimate, nondiscriminatory reason for

wrongful termination claim arising from age discrimination.

Santillan’s alternative theory for his wrongful termination

claim is that USA Waste fired him in July 2012, in retaliation

for having an attorney represent him during the Settlement

Agreement negotiations with USA Waste. California

retaliation claims follow the same McDonnell Douglas

burden-shifting framework as age discrimination claims.

Yanowitz, 36 Cal. 4th at 1042; Diego, 231 Cal. App. 4th at

Santillan can establish a prima facie case of retaliatory

activity protected by California public policy; and (2) there

was a nexus between the public policy and his termination.

discrimination claim, if Santillan establishes a prima facie

SANTILLAN V. USA WASTE OF CAL.22

retaliation case, there is a presumption that USA Waste

unlawfully retaliated against him. See Reid, 50 Cal. 4th at

520 n.2.

in protected activity when he used an attorney to negotiate his

termination claim based on the public policy reflected in

California Labor Code Section 923

retaliates against an employee who has “designated an

attorney to represent [him] for the purpose of negotiating the

terms and conditions of employment.” Montalvo v. Zamora,

7 Cal. App. 3d 69, 75 (Ct. App. 1970) (recognizing wrongful

termination where an employer fired workers shortly after

California courts have rejected the argument that such a claim

13

Negotiation of terms and conditions of labor should result from voluntary

agreement between employer and employees. . . . Therefore it is

necessary that the individual workman have full freedom of association,

self-organization, and designation of representatives of his own choosing,

to negotiate the terms and conditions of his employment, and that he shall

be free from the interference, restraint, or coercion of employers of labor,

or their agents, in the designation of such representatives or in self-

organization or in other concerted activities for the purpose of . . . other

mutual aid or protection.” Cal. Lab. Code § 923 (emphasis added).

SANTILLAN V. USA WASTE OF CAL. 23

California public policy protects Santillan’s right to

representation by an attorney to negotiate the terms and

conditions of employment, he engaged in protected activity

when he was represented by an attorney during the Settlement

Agreement negotiations.

him during the Settlement Agreement negotiations with USA

Waste. “The causal link between a protected activity and the

alleged retaliatory action ‘can be inferred from timing alone’

when there is a close proximity between the two.” Thomas v.

City of Beaverton, 379 F.3d 802, 812 (9th Cir. 2004); see also

Nidds, 113 F.3d at 919 (holding that a prima facie case was

established where employee’s “layoff occurred only four

a complaint and “only one month after he filed his second

engaged in protected activity).

unlawful retaliation.

SANTILLAN V. USA WASTE OF CAL.24

B. The district court erred in holding that USA Waste

As discussed supra in Part II.B., USA Waste cannot rebut

the presumption that it retaliated against Santillan by relying

on the IRCA’s employment eligibility verification

firing Santillan are not legitimate because (1) the IRCA

verification of his immigration status because doing so would

violate California public policy. See discussion supra Part

II.B.

C. USA Waste failed to meet its burden as to

For the foregoing reasons, we REVERSE the district

IV. The district court did not abuse its discretion by

At the summary judgment hearing, Santillan’s attorney

orally requested leave to amend the complaint to add a breach

SANTILLAN V. USA WASTE OF CAL. 25

Santillan failed to show that he was diligent in seeking to

amend the complaint, as his request for leave to amend came

eight months after the deadline for making such a request.

See Johnson v. Mammoth Recreations, Inc., 975 F.2d 604,

609 (9th Cir. 1992) (“If [the moving] party was not diligent,

the inquiry should end.”). Morever, Santillan failed to show

modified only for good cause and with the judge’s consent.”).

CONCLUSIONS

In sum, we REVERSE the district court’s grant of

summary judgment in favor of USA Waste on Santillan’s

wrongful termination claim based on age discrimination and

retaliation and REMAND for further proceedings consistent

triable issues of fact remain that would preclude a grant of summary

judgment in favor of Santillan. See Albino, 747 F.3d at 1176–77

(reversing summary judgment for defendant and remanding with

instructions to enter summary judgment for plaintiff); Portsmouth Square,

Inc. v. S’holders Protective Comm., 770 F.2d 866, 869 (9th Cir. 1985);

Cool Fuel, Inc. v. Connett, 685 F.2d 309, 311 (9th Cir. 1982); see also

Fed. R. Civ. P. 56(f).