Gregory J. Andrews v. U.S. BANK, N.A., a Delaware corporation;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GREGORY J. ANDREWS,
Plaintiff-Appellant,
v.
U.S. BANK, N.A., a Delaware corporation;
et al.,
Defendants-Appellees.
No. 22-56120
D.C. No.
8:22-cv-00117-DOC-DFM
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
Submitted February 14, 2024**
Pasadena, California
Before: W. FLETCHER, NGUYEN, and LEE, Circuit Judges.
Plaintiff Gregory Andrews appeals an order from the district court granting
Defendants U.S. Bank, N.A. and U.S. Bancorp Investments, Inc.’s motion for
summary judgment in this diversity action involving California state employment
* 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).
FILED
FEB 16 2024
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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discrimination claims. The district court had jurisdiction pursuant to 28 U.S.C.
§ 1332, and we have jurisdiction pursuant to 28 U.S.C. § 1291. We review de
novo the district court’s grant of summary judgment. EEOC v. Luce, Forward,
Hamilton & Scripps, 345 F.3d 742, 746 (9th Cir. 2003) (en banc). We affirm.
1. Andrews’ disability discrimination claim under the California Fair
Employment and Housing Act (“FEHA”) fails because he cannot establish that his
alleged disability was a substantial motivating reason for U.S. Bank’s decision to
terminate him.
California has adopted the three-step burden-shifting analysis on summary
judgment of a disability discrimination claim under the FEHA: (1) “the plaintiff
bears the burden of establishing a prima facie case of discrimination”; (2) “the
burden then shifts to the employer to offer a legitimate, nondiscriminatory reason
for the adverse employment action”; and (3) if the employer does so, “the plaintiff
must offer evidence” of pretext sufficient to withstand summary judgment.
Alamillo v. BNSF Ry. Co., 869 F.3d 916, 920 (9th Cir. 2017) (applying FEHA). To
establish his prima facie case, Andrews must show (1) he suffers from a disability;
(2) he is otherwise qualified to do his job; and (3) he was subjected to adverse
employment action because of his disability. Faust v. Cal. Portland Cement Co.,
150 Cal. App. 4th 864, 886 (2007).
Andrews’ prima facie case fails on the third prong—he cannot establish a

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genuine dispute about whether he was terminated because of his alleged disability.
To establish causation, the disability must be a “substantial motivating reason” for
Defendants’ decision to terminate his employment. Alamillo, 869 F.3d at 920.
This requires employees to prove that their “employer had knowledge of the
employee’s disability when the adverse employment decision was made.”
Brundage v. Hahn, 57 Cal. App. 4th 228, 236–37 (1997). An employer “knows an
employee has a disability when the employee tells the employer about his
condition, or when the employer otherwise becomes aware of the condition, such
as through a third party or by observation.” Faust, 150 Cal. App. 4th at 887
(citation omitted).
Andrews admits that he never directly told Rod Dolan, his supervisor who
ultimately made the decision to terminate Andrews, that he was diagnosed with
Tourette’s Syndrome or any other tic disorder. And the evidence in the record is
insufficient to impute knowledge of such a disability to Dolan by inference or
observation. Andrews’ passing references to his medication and his tic disorder
are, at best, “[v]ague or conclusory statements revealing an unspecified
incapacity,” which “are not sufficient to put an employer on notice of its
obligations under the [FEHA].” Brundage, 57 Cal. App. 4th at 237. Nor was the
conduct that Andrews was terminated for—aggressive behavior toward two of his
subordinates—so obviously a manifestation of his alleged disability that it would

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be reasonable to infer that U.S. Bank had actual knowledge of such a disability.
See Hedburg v. Ind. Bell Tel. Co., Inc., 47 F.3d 928, 934 (7th Cir. 1995).
Accordingly, there is no genuine dispute of fact as to U.S. Bank’s actual or
imputed knowledge of Andrews’ alleged disability.
This conclusion is bolstered by Andrews’ argument that U.S. Bank and its
investigators should have made further inquiries into his medical condition upon
learning that he was taking medication. His contention that U.S. Bank “ignored”
evidence of his alleged disability undercuts any claim that U.S. Bank took an
adverse employment action because of his disability. See Alamillo, 869 F.3d at
920 (affirming summary judgment where employee conceded that employer
“disregarded” disability in termination decision). Andrews bore the burden of
putting U.S. Bank on notice of his disability, Featherstone v. S. Cal. Permanente
Med. Grp., 10 Cal. App. 5th 1150, 1167 (2017), and he cannot impute knowledge
of his disability to his employer based on its purported failure to probe deeper into
references to medication or an unspecified condition.
We agree with the district court’s conclusion that the evidence fails to
establish a prima facie case of disability discrimination under the FEHA.
2. Andrews’ failure to accommodate and interactive process claims
under the FEHA similarly fail because he never informed U.S. Bank of his
purported disability, he never requested an accommodation, and he does not

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identify what reasonable accommodation he should have been offered. An
employer is ordinarily not liable under the FEHA for failing to accommodate a
disability of which it had no knowledge. King v. United Parcel Serv., Inc., 152
Cal. App. 4th 426, 443 (2007). It is the responsibility of the employee to
“understand his or her own physical or mental condition well enough to present the
employer at the earliest opportunity with a concise list of restrictions which must
be met to accommodate the employee.” Id. The record does not show that
Andrews requested any accommodation or presented any restrictions prior to his
termination, nor has Andrews set forth any reasonable accommodation that “would
have been available at the time the interactive process should have occurred.”
Alamillo, 869 F.3d at 922–23. On appeal, Andrews argues that “the disciplinary
process [would] have concluded differently” had U.S. Bank known of his
purported disability, but “not terminat[ing the plaintiff] for prior misconduct” does
“not qualify as reasonable accommodations under California law.” Id. at 922.
3. Because Andrews’ unfair competition and wrongful termination
claims are predicated on his FEHA claims, which fail for the reasons set forth
above, the district court properly granted summary judgment with respect to these
derivative claims.
4. We also find that the district court properly granted summary
judgment to U.S. Bancorp Investments, Inc. (USBI) on Andrews’ claim that it

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failed to provide him with the “Dual Employee Acknowledgement Form” within
30 days of his request in violation of Cal. Lab. Code § 1198.5(a). At the outset, we
disagree with USBI’s argument that Andrews lacks standing to pursue this claim
because it sent his counsel two checks in the amount of the statutory penalty and
attorneys’ fees. The appropriate inquiry is whether USBI’s offer to settle, which
Andrews rejected, rendered Andrews’ claim moot, and we believe that it did not.
See Chen v. Allstate Ins. Co. 819 F.3d 1136, 1138 (9th Cir. 2016) (“Under
Supreme Court and Ninth Circuit case law, a claim becomes moot when a plaintiff
actually receives complete relief on that claim, not merely when that relief is
offered or tendered.”).
Nevertheless, we affirm the district court’s grant of summary judgment on
the merits of this claim because the Dual Employee Acknowledgment form is not
the type of document covered by Cal. Lab. Code § 1198.5(a). That statute requires
employers to produce “records that the employer maintains relating to the
employee’s performance or to any grievance concerning the employee.” Cal. Lab.
Code § 1198.5(a). That includes records “that are used or have been used to
determine that employee's qualifications for employment, promotion, additional
compensation, or termination or other disciplinary action.” Wellpoint Health
Networks, Inc. v. Superior Ct., 59 Cal. App. 4th 110, 124 (1997). Andrews argues
that there is a genuine dispute as to whether the Dual Employee Acknowledgment

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Form falls within this definition. We disagree. The form itself merely reflects
Andrews’ acknowledgment that in his employment, he serves in a “dual capacity
governed by and supporting U.S. Bancorp Investments, Inc.” It lists obligations
and duties owed by Andrews in that dual capacity. It does not describe Andrews’
qualifications, compensation, promotions, or any other information specific to
Andrews. Andrews has not presented any evidence that this form was used to
determine his qualifications for employment, promotion, additional compensation,
termination, or other disciplinary action. Wellpoint, 59 Cal. App. 4th at 124.
AFFIRMED.

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