Jason Lopez v. Winco Holdings, Inc.; Winco Foods, LLC

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JASON LOPEZ,
Plaintiff-Appellant,
v.
WINCO HOLDINGS, INC.; WINCO
FOODS, LLC,
Defendants-Appellees.
No. 21-16565
D.C. No. 3:19-cv-05727-CRB
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding
Submitted December 7, 2022**
San Francisco, California
Before: BRESS and VANDYKE, Circuit Judges, and RESTANI,*** Judge.
Plaintiff-Appellant Jason Lopez appeals the district court’s decision granting
summary judgment in favor of Defendants-Appellees WinCo Holdings, Inc., and
* 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).
*** The Honorable Jane A. Restani, Judge for the United States Court of International
Trade, sitting by designation.
FILED
DEC 9 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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WinCo Foods, LLC (collectively, “WinCo”). We have jurisdiction under 28 U.S.C.
§ 1291, and we affirm.
Lopez worked as a WinCo store manager in Pittsburg, California. In early
2017, he began to develop depression. He did not at that time inform anyone at
WinCo of his mental health issues, but his work performance began to suffer. He
received his first written warning in January 2018, after WinCo leadership inspected
Lopez’s store and found “unacceptable and intolerable store conditions,” including
empty bins, moldy produce, disheveled displays, unsanitary conditions in the deli,
and no carts in the lobby.
In a December 2018 email to management, Lopez disclosed his depression,
requested a lateral transfer to be closer to family, and requested occasional time off
for counseling sessions. WinCo’s human resources director assisted Lopez with his
workers’ compensation claim, and WinCo offered Lopez the first available transfer
that came open, to Vacaville, California.
Three inspections at Lopez’s new Vacaville store in March and April of 2019
revealed continuing problems, including empty shelves, rotting fruit, and dirty
conditions. Despite warnings, Lopez’s poor performance continued. In short, “[t]he
store [was] not being run properly.” Lopez was suspended for one week in early
April 2019, and an inspection three days after he returned from the suspension
continued to find “unacceptable conditions.” Ultimately, WinCo terminated Lopez

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based on his history of “performance concerns” from January 2018 to May 2019.
Lopez sued WinCo, alleging violations of California’s Fair Employment and
Housing Act (FEHA) and the Federal Family Medical Leave Act, including
disability discrimination, failure to accommodate, and retaliation. The district court
granted summary judgment in favor of WinCo on all claims.
We review de novo. Ariz. Dream Act Coal. v. Brewer, 855 F.3d 957, 965 (9th
Cir. 2017). Summary judgment is appropriate if there is no genuine dispute as to
any material fact. Fed. R. Civ. P. 56. When determining whether a genuine dispute
exists, the court views the facts in the light most favorable to the non-moving party.
Santillan v. USA Waste of Cal., Inc., 853 F.3d 1035, 1042 (9th Cir. 2017).1
Lopez argues he experienced disability discrimination under FEHA. To
establish a prima facie case of disability discrimination, a plaintiff must show (1) he
suffers from a disability, (2) he is otherwise qualified for his job, (3) he experienced
an adverse employment action, and (4) there is indicia of a discriminatory motive.
See Faust v. Cal. Portland Cement Co., 58 Cal. Rptr. 3d 729, 745 (Cal. Ct. App.
2007).
It is undisputed Lopez suffered from a disability and was otherwise qualified
1 We need not decide whether the district court erred in considering the declaration
of a former Vacaville store manager, as WinCo contends. We agree with the district
court that this declaration does not change the outcome because the other manager
was not similarly situated to Lopez.

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for his job. Lopez argues he experienced adverse employment actions when he was
transferred, suspended, and terminated. He cannot, however, establish a prima facie
case of discrimination based on a transfer he himself requested. Lopez attempts to
causally link the transfer to a discriminatory motive based on temporal proximity to
his disclosure of his depression, but since (1) Lopez disclosed his disability in the
same letter requesting transfer out of Pittsburg, (2) WinCo accommodated his
request for transfer with the earliest available opening, and (3) the Vacaville position
was not materially worse than the Pittsburg position, this argument, as the district
court concluded, simply “does not hold water.” Regardless, Lopez has not
demonstrated a discriminatory motive in connection with the transfer.
The parties agree that suspension and termination are adverse employment
actions. The question, then, is whether Lopez provided evidence linking the
suspension and termination to discriminatory animus. The district court accepted
Lopez’s argument temporally linking WinCo’s actions to Lopez’s disclosure and
requests for accommodations (including workers’ compensation and counseling
sessions).
But even assuming Lopez presented a prima facie case based on temporal
proximity alone, Lopez cannot show that WinCo’s justifications for his suspension
and termination were pretextual. WinCo presents ample evidence of Lopez’s
performance issues at work, well before and after he disclosed his disability and

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sought treatment. As early as January 2018, he received a write-up for “unacceptable
and intolerable store conditions,” and despite multiple opportunities to fix issues in
his store, Lopez continued to ignore WinCo’s warnings. With each repeat
inspection, WinCo leadership continued to find Lopez’s work “substandard.” These
were legitimate, non-discriminatory reasons for suspending Lopez and later
terminating him. Without evidence of discriminatory motive, the district court
didn’t err in granting summary judgment in favor of WinCo on this claim. For the
same reasons, Lopez’s retaliation claims also fail.2
Finally, we need not consider Lopez’s mixed-motive argument, because
Lopez waived it by raising it for the first time on appeal. In re Mercury Interactive
Corp. Sec. Litig., 618 F.3d 988, 992 (9th Cir. 2010). Regardless, the argument does
not provide a basis for reversal.
AFFIRMED.
2 Like the prima facie elements for disability discrimination, retaliation requires a
causal connection between protected activity and an adverse employment action.
Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1034–35 (9th Cir. 2006).

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