Wendy Cenis v. WINCO HOLDINGS, INC., a corporation

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WENDY CENIS,
Plaintiff-Appellant,
v.
WINCO HOLDINGS, INC., a corporation,
Defendant-Appellee.
No. 18-16089
D.C. No. 1:17-cv-00863-DAD-JLT
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Dale A. Drozd, District Judge, Presiding
Submitted December 3, 2019**
San Francisco, California
Before: THOMAS, Chief Judge, and W. FLETCHER and MILLER, Circuit
Judges.
Wendy Cenis (“Cenis”) appeals the district court’s grant of summary
judgment in favor of Winco Holdings, Inc. (“WinCo”) and its denial of her motion
for partial summary judgment on her claims that she was discriminated against in
FILED
DEC 16 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

-- 1 of 4 --

violation of the California Fair Employment and Housing Act (“FEHA”), and that
she was retaliated against in violation of California Labor Code § 6310, along with
a number of subsidiary claims. We have jurisdiction under 28 U.S.C. § 1291, and
we affirm.
FEHA prohibits an employer from terminating a person’s employment
because of a physical disability unless the employee is unable to perform his or her
duties even with reasonable accommodations. CAL. GOV’T CODE § 12940(a),
(a)(2). Thus, the threshold question here is whether Cenis suffered from a
disability.
FEHA defines physical disability to include conditions affecting the
digestive system that limit a major life activity. CAL. GOV’T CODE
§ 12926(m)(1)(A). Working is a major life activity, and a condition limits a major
life activity if it makes the achievement of the major life activity difficult. Id. at
§ 12926(m)(1)(B)(ii)–(iii). But a regulation interpreting FEHA qualifies that
disability does not include “conditions that are mild, which do not limit a major life
activity, as determined on a case-by-case basis,” including “minor and non-chronic
gastrointestinal disorders.” See 2 CAL. CODE REGS. tit. 2, § 11065(d)(9)(B)
(2019); see also Colmenares v. Braemar Country Club, Inc., 63 P.3d 220, 226
2

-- 2 of 4 --

(Cal. 2003) (noting that California courts give “substantial weight” to regulations
construing FEHA issued by the agency responsible for administering the statute).
Section 11065(d)(9)(B) of California’s regulations exclude Cenis’s food
poisoning from the FEHA definition of disability. Cenis claims that she suffered
from vomiting and diarrhea after eating chicken salad from the deli of the WinCo
grocery store where she worked. Her symptoms subsided two days later, at which
point she returned to work. This is exactly the type of “mild,” “minor and non-
chronic gastrointestinal disorder[]” that is excluded from the definition of a
disability under the regulation. Because Cenis’s illness was not a disability, she
cannot make a prima facie showing of discrimination in violation of FEHA.
Cenis also has not shown a triable issue as to her claim that she was fired in
retaliation for reporting the allegedly spoiled chicken salad, in violation of
California Labor Code § 6310. Section 6310 prohibits an employee from being
fired or discriminated against for making workplace-related health and safety
complaints. See also CAL. LABOR CODE § 6310(b) (providing that an employee
who has been fired or discriminated against because he or she has complained
about “unsafe working conditions, or work practices, in his or her employment or
place of employment,” is entitled to reinstatement and backpay). To succeed on
her claim, Cenis must first show that she engaged in a protected activity. See
3

-- 3 of 4 --

Diego v. Pilgrim United Church of Christ, 180 Cal. Rptr. 3d 359, 373 (Cal. Ct.
App. 2014). Cenis fails at this step. Her complaints about the allegedly spoiled
chicken salad to WinCo agents did not constitute protected activity. The
complaints did not concern workplace safety, as the record shows no evidence that
WinCo employees were expected or required to eat WinCo food. Instead, her
complaints about the chicken salad are properly construed as ones about a public-
health risk, but such complaints “do[] not satisfy § 6310’s requirement that the
employee complain of unsafe working conditions or an unsafe workplace.” See
Creighton v. City of Livingston, 2009 WL 3246825, at *14 (E.D. Cal. Oct. 7, 2009)
(citing Lujan v. Minagar, 21 Cal. Rptr. 3d 861, 864 (Cal. Ct. App. 2004)).
Because Cenis failed to show she suffered from a disability, or that WinCo
retaliated against her, her claims dependent on those issues also fail.
AFFIRMED.
4

-- 4 of 4 --