Filed 10/7/26 Murrain v. Tesla CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
FERNANDO MURRAIN, H052848
(Santa Clara County
Plaintiff and Appellant, Super. Ct. No. 18CV334861)
v.
TESLA, INC. et al.,
Defendants and Respondents.
Tesla, Inc. (formerly SolarCity) demoted and terminated Fernando Murrain for
poor performance following his protected leave. Murrain sued Tesla and SolarCity for
protected leave interference under the California Family Rights Act (CFRA) and Family
and Medical Leave Act (FMLA); associational discrimination under the Fair Employment
and Housing Act (FEHA) and Americans with Disabilities Act (ADA); retaliation under
the CFRA, FMLA, FEHA, and ADA; and wrongful termination. Tesla prevailed on a
motion for summary judgment. For the reasons explained here, we will reverse the
judgment because we conclude triable issues exist as to whether Tesla’s articulated
reasons for its actions were pretextual and whether Tesla interfered with Murrain’s
protected leave.
I. BACKGROUND
A. MURRAIN’S EMPLOYMENT WITH TESLA (FORMERLY SOLARCITY)
Murrain began working for SolarCity in October 2013. He was hired to work as a
field energy advisor in San Mateo, California and was promoted to field energy
consultant within six months. Murrain began working as a contract reassignment agent
and reporting to Ginger Skinner, the director of contract reassignment and real estate, in
January 2015. In the spring of 2015, Murrain agreed to relocate with his team to Utah by
fall 2015 to remain eligible for promotions. Skinner promoted Murrain to contract
reassignment supervisor in July 2015 before his move to Utah. The position was to begin
in August 2015 and was based out of Utah. Murrain would report directly to contract
reassignment manager Amber Henwood (Mantooth), who was based in Utah. Mantooth
reported to Skinner, who was based in California. Murrain also reported to California-
based senior vice president Fiona Taylor. Murrain transferred to SolarCity’s Utah
location around August 2015 and lived in Utah until the end of his employment in
October 2017. His personnel file was maintained in California.
Murrain requested and was approved for baby bonding leave under the FMLA
from April 11 to June 6, 2016. Skinner promoted Murrain to asset control manager in
June 2016, and Murrain began reporting to Skinner directly. From early 2016 to 2017,
Skinner considered Murrain to be performing satisfactorily. On January 15, 2017,
Skinner positively evaluated Murrain’s performance, stating Murrain “definitely … meets
SolarCity’s standard of excellence” and that she would “most likely” recommend him for
increased responsibilities within the year. Tesla acquired SolarCity in late 2016.
In January 2017, Murrain informed Tesla of his wife’s breast cancer and requested
FMLA leave to care for her. Tesla acknowledged receipt of the request in January 2017
and asked that Murrain submit medical certification by February 8, 2017. Murrain
missed that deadline but informed Tesla his delay was due to his work obligations and the
doctor’s availability. He timely submitted the documentation on February 21, 2027 after
the deadline was twice extended by Tesla. The certification stated Murrain needed
February 22 to April 7, 2017 off. Tesla then reached out to Murrain for additional
clarification regarding his caretaking duties. A renewed certification stated that Murrain’s
wife needed care for a period of eight weeks after her treatment on February 22, 2017.
2
Murrain emailed Tesla in March 2017 to provide Tesla with additional requested
information regarding his caretaking duties. In the email, he thanked the benefits
administrator for the call on March 6, 2017. Murrain took paid time off and sick leave
from February 22 to March 8, 2017 without specifying the CFRA or FMLA in his
request, and his approved CFRA/FMLA leave ran from March 9 to 24, 2017.
During Murrain’s leave, Skinner traveled to Utah to manage Murrain’s team.
Skinner discussed performance issues with Murrain around April 3, 2017, about a week
after he returned from his leave. Skinner stated Murrain could return to his former
position as a contract reassignment supervisor or face discipline if he stayed in his current
position as asset control manager. She did not issue a written disciplinary warning or
performance improvement plan. Murrain returned to his former supervisor position and
recommenced reporting to Mantooth until his termination in October 2017. Skinner
remained in Murrain’s chain of command. She transferred many of Murrain’s former
duties as asset control manager to Michael Watts, who had been Murrain’s subordinate.
Tesla terminated SolarCity employees in the fall of 2017. Mantooth testified that
Murrain was an adequate performer and believed she had not recommended Murrain’s
termination. Skinner rated Murrain a “2” in his 2017 annual performance review and
supplemental performance review. Skinner and Taylor recommended by September 27
and 28, 2017 that Murrain be retained because of his satisfactory performance but
decided to fire Murrain by October 4, 2017. Skinner changed her mind in part because of
Murrain’s interactions with Watts. Watts had reported to Skinner that Murrain was
bullying him and creating a hostile work environment and that Murrain had retained a
lawyer in case he was fired. Taylor was unaware of Watt’s accusations. Skinner
conducted her own investigation into Watts’ complaint without elevating the report to
HR, and neither Skinner nor Taylor discussed with Murrain his interactions with Watts.
3
Murrain was terminated on October 18, 2017 at a meeting with Skinner, Mantooth,
and a Senior Human Resources Partner in Utah. At the termination meeting, Skinner
informed Murrain he was being fired in part because of issues Murrain had with Watts.
B. MURRAIN’S LAWSUIT
Murrain sued Tesla in September 2018, alleging protected leave interference under
the CFRA and FMLA, associational discrimination under FEHA and the ADA; retaliation
under the CFRA, FMLA, FEHA, and ADA; and wrongful termination. Defendant
successfully compelled the matter to arbitration, but Murrain was allowed to withdraw
from arbitration in 2021 after Tesla did not timely pay its arbitration fees.
Tesla moved for summary judgment and adjudication. It argued Murrain was not
protected by the CFRA or FEHA as a Utah resident alleging impermissible conduct that
occurred in a Utah workplace. It also argued that no triable issues existed regarding
Murrain’s termination for legitimate, nondiscriminatory reasons and the purported
interference with his leave. The adjudication of those claims necessitated adjudication of
his wrongful termination public policy claim.
Tesla argued it terminated Murrain six months after the approved leave because
Skinner discovered he “wasn’t doing his job.” Skinner declared that she covered
Murrain’s position and performed his duties during his leave in 2017 and became aware
of numerous shortfalls in Murrain’s management of his team. She asserted that Murrain
approved fraudulent timecards for an employee who did not work a full day but whose
timecard reflected a full day of work. She also asserted that Murrain also was leaving
another employee without work by not holding one-on-one meetings, was hoarding work,
and did not escalate important issues to Skinner as required. Skinner met with Murrain in
Utah when he returned from leave and informed him she was going to write him up for
performance issues. She mentioned that his earlier role as a contract reassignment
supervisor was available if he did not wish to continue his managerial role. According to
Skinner, Murrain decided to return to his former position and reported to Mantooth.
4
Skinner declared that both she and Mantooth prepared his 2017 performance
review based on their assessment of his performance. She stated that Murrain’s
performance review was solely the result of his skills and performance in his assigned
roles during the reporting period and was not impacted by his authorized use of leave and
that she did not know the performance reviews would be used for the reduction in force.
A declaration from a senior human resources partner for SolarCity and Tesla stated that
Tesla began companywide layoffs in 2017 as part of general corporate restructuring.
Unknown to the reviewers, Tesla determined any employee who received a “2” or below
on their 2017 annual performance review would be laid off. Several hundred Tesla
employees, including Murrain, were terminated during that time.
Tesla also argued any interference or delays in Murrain’s requested FMLA leave
was the result of his own unwillingness to provide the required medical certification in a
timely manner. Murrain acknowledged during his deposition that that he asked that his
leave begin on March 9, 2017 and that Tesla did not inform him that he would lose his
job if he did not return at the end of his leave.
Murrain objected to the motion. He argued that he was entitled to the protection
of FEHA and the CFRA as an employee of a California-based employer that made or
ratified adverse employment decisions in California. He also argued that Tesla’s
articulation of legitimate, nondiscriminatory reasons were mere pretext for its true
motives. According to Murrain, Skinner’s subjective evaluation resulted in his
termination, and a reasonable jury could conclude that Skinner was motivated to
terminate him due to accusations concerning her unfair and biased treatment of him. The
close temporal proximity between Murrain’s leave and his demotion and termination also
suggested discriminatory or retaliatory motive, especially considering Murrain’s positive
performance review a few days before he asked for FMLA leave.
Murrain also argued Tesla interfered with his rights under the CFRA, FMLA,
FEHA, and ADA because Tesla knew Murrain’s leave was for a qualifying purpose but
5
did not treat the time as protected leave or provide proper notice of his rights under the
FMLA, Skinner frequently interrupted his leave with work-related communications, and
his leave ultimately resulted in his demotion and termination. Murrain emphasized that
Tesla bypassed any challenge to his prima facie case by choosing to instead articulate
legitimate nondiscrimination reasons for his termination.
Murrain declared that he continued to report to Skinner and Taylor after he
transferred to Utah and after Tesla acquired SolarCity. He stated that the issues began
after he used leave to care for his second child and wife after her diagnosis of breast
cancer.
Murrain testified that during his baby bonding leave, Skinner had asked him to
return to work and take every other Friday off because she did not have a manager in the
position. While Murrain did not think it was in his best interest to do so, he returned to
work early due to Skinner’s comments. Murrain’s wife declared that Skinner repeatedly
called her home after hours to speak to Murrain in the spring of 2016 and repeatedly
called Murrain while he was on baby bonding leave to ask him to return to work early.
Murrain also testified that SolarCity informed him he would be “abandoning [his] job” if
he did not submit the FMLA documentation on time in 2017. He stated Tesla sought
additional information from his wife’s doctor and sought clarification regarding his
caretaking duties after he submitted the certification.
Murrain testified that when Skinner met with him after he returned from FMLA
leave, she told him that his team did not respect him, he was not doing a good job, and
asked “if [his] family was the reason why [he] was so tired.” She did not mention that
Murrain was not adequately managing his employees. She then stated that he had the
option to be written up or accept a demotion. Although Murrain was not written up, he
believed remaining in the position with a write-up would have been “a very hostile
situation” because his character had been defamed and he did not have a choice other
than to accept her terms. Murrain also testified that Skinner told him to increase his
6
workload after he returned from FMLA leave. He asserted that Skinner did not inform
him of substantial changes to the relocation process and did not address a significant
amount of work during his absence.
Murrain acknowledged some of his subordinates were having performance issues.
He testified he did not know one employee was lying on timecards when he approved
them but he began investigating the timecard discrepancy before he went on leave.
Murrain also informed Skinner that he had stopped assigning work to another employee
due to performance issues and provided a written disciplinary notice to that employee in
December 2016. He decided to engage in case review with the employee every two
weeks even though Skinner did not ask Murrain to do so. Murrain informed Skinner the
same subordinate was being misogynistic, but Skinner did not take any action. He also
testified that he did not have Skinner’s approval to take additional action such as
termination. Skinner fired those two subordinates of Murrain during his leave.
In February 2017, Murrain sent out an email to his subordinates before his leave,
and Skinner told the employees a week later to “ ‘ignore these responsibilities.’ ”
According to Skinner’s testimony and produced emails, Murrain reached out to her in
February 2017 to discuss the employee who was having performance issues and in March
2017 to discuss the employee who was falsifying timecards.
Taylor testified that she and Skinner discussed until consensus who should be
subject to the reduction in force, although Taylor ultimately approved the demotions.
Both Skinner and Taylor stated that they knew about Murrain’s low performance rating
but planned by September 27 or 29 to “keep” him employed by transferring him to
another team. Skinner also testified that she understood at that time Murrain was a “3” or
“satisf[actory]” employee but discussions revealed that Mantooth did not feel like
Murrain was a “3” due to Murrain’s interactions with Watts.
Skinner informed Tesla’s human resources department by October 4 that Murrain
should be fired. Skinner testified that she had learned of Murrain’s “vendetta” against
7
Watts between September 27 and October 4. Skinner had heard of the friction between
the two before her conversation with Watts but then took it upon herself to investigate
Murrain’s behavior without communicating with Murrain. Skinner asked Watts to
document Murrain’s interpersonal issues and submit a memoranda to her. Watts informed
Skinner in an email on October 6 that Murrain spoke poorly of her management,
complained that he often had to work nights and weekends due to her lack of support, and
that he had retained a lawyer in case he was fired.
Skinner stated that Mantooth had also informed her that Murrain had made people
on his team cry and she believed his attitude was “uncurable.” Skinner testified that
Murrain’s issue with Watts was the reason she and Mantooth did not want to “fight for
him” to stay on as an employee. According to Skinner, Mantooth told her she wanted
Murrain fired. Skinner informed Taylor there was an issue between Watts and Murrain
but did not describe the issue as workplace bullying, and Taylor not aware that Watts had
accused Murrain of creating a hostile work environment. Murrain testified that he was
told during his termination meeting that he disliked Watts and was overhead stating he
would go around Skinner to get things done.
Mantooth testified during her deposition that she was not “a decision maker” when
it came to terminations but that she did not recommend or agree with Murrain’s
termination or any other employee’s termination during that period. Murrain performed
well under Mantooth as a contract reassignment agent and supervisor and performing
satisfactory in the months before his termination. She did not rate Murrain a “2” in his
performance review; Skinner gave the overall rating of “2” because the bulk of the
employment review period was under her supervision. Mantooth stated she would have
rated Murrain a “3” or better but Skinner changed her rating to a “2.” In August 2017,
Mantooth rated Murrain’s attitude and productivity a “4” meaning “better than good” and
his innovation and team collaboration a “3”, resulting in an overall rating of “3/4”.
Mantooth informed Skinner in an email dated October 9, 2017 that Murrain was “hostile”
8
and “resentful” towards Watts and was at times “aggressive” but testified that she did not
believe Murrain’s performance warranted termination.
Tesla argued on reply that the fact some of Murrain’s managers were based in
California was not enough to entitle him to the protections of the CFRA or FEHA. Tesla
argued that there was no material dispute of fact that Murrain was demoted after two of
his direct reports were fired for serious issues and was fired due to his low performance
rating after Skinner learned Murrain was “ ‘bullying’ ” Watts and creating a “ ‘hostile
work environment.’ ” According to Tesla, Skinner had tried to save Murrain’s job but
“her hand had been forced” when she learned about the issues with Watts. Tesla
reiterated that there was no dispute Murrain was fully informed of his FMLA rights and
received all the protected leave he requested without interference.
Tesla submitted evidence not previously filed and another statement of undisputed
facts with its reply. Included in that evidence was Murrain’s paystub from May 29 to
June 11, 2016 showing that he was paid his regular salary after June 6, 2016, and an
email stating that Murrain’s access to Tesla’s systems was restored on June 6, 2016.
Additional deposition testimony from Mantooth explained the conflict between
Murrain and Watts. Murrain would ask Watts about issues that weren’t related to his
department or role to see if Watts had made headway. She confirmed that she informed
Murrain about his unprofessional and disrespectful behavior. Murrain also acknowledged
that Mantooth counseled him for being too aggressive toward Watts in meetings. He had
testified that Mantooth had once told him that his tone toward Watts was “aggressive”
after a team meeting; Murrain told Mantooth he was upset that he was demoted and from
that point forward stopped communicating with Watts. Watts testified he waited about
five months after he became supervisor before reaching out to Skinner about Murrain’s
conduct on October 5 or 6, 2017 because he thought things would cool down and settle.
Murrain objected to the evidence and separate statement Tesla submitted with its
reply, stating Tesla had all the newly submitted evidence when it first moved for
9
summary judgment. The trial court issued a tentative ruling, finding triable issues as to
some claims. On the day of the hearing, the trial court allowed Murrain to submit a
surreply and continued the hearing.
Murrain reiterated its objections to Tesla’s reply evidence and separate statement
and restated that California law applies to Tesla’s decisions, unlawful bias supported by
temporal proximity motivated Tesla’s adverse decisions, and material fact issues support
Murrain’s interference claims. He highlighted that Tesla had originally argued the
termination was mandatory and then argued on reply that Skinner made the decision to
terminate Murrain due to other reasons. He also highlighted that there was no evidence
that he had created a hostile work environment. Murrain declared that he never bullied or
harassed Watts during his employment. and argued that he merely mirrored Tesla’s
counsel use of the term “aggressive” during his deposition. Watts testified at his
deposition that Mantooth had informed him she told Murrain to stop asking Watts
embarrassing and irrelevant questions during meetings; Murrain stopped communicating
with Watts after that conversation.
Murrain included deposition testimony from Skinner stating that she had heard
about issues between Murrain and Watts and was aware Murrain wanted to transfer out of
Mantooth’s department before September 27, 2017 but it became apparent at the end of
September and beginning of October. She did not do anything about those issues because
Mantooth was working to help Murrain transfer to any department he wanted to go.
After hearing further argument, the court granted summary judgment. The court
determined that it could not conclude Murrain was precluded from the protections of
FEHA because a triable issue of fact existed as to whether any unlawful conduct was
ratified by decisionmakers in California. It determined Tesla had provided legitimate,
non-discriminatory reasons for Murrain’s demotion and termination and Murrain had not
provided evidence to show the purported inconsistencies regarding the 2017 performance
rating, his subordinates’ performance issues, and Murrain’s issues with Watts were
10
pretextual. The trial court emphasized that temporal proximity was not sufficient to
demonstrate discrimination as Skinner discovered issues with Murrain’s performance
while she was covering for him. The court also determined Skinner’s comment regarding
whether Murrain he was tired due to his family was made in the context of his
performance and not in relation to his leave to find associational discrimination under the
ADA.
The trial court also found Murrain did not provide evidence to establish a triable
issue as to FMLA and CFRA leave interference, highlighting that Murrain did not provide
any evidence Tesla reached out to him on his personal phone. The trial court stated the
wrongful termination claim was contingent upon Murrain’s success on his other claims
and granted summary judgment. In reaching its conclusion, the trial court did not rule on
Murrain’s objections to Skinner’s declaration and to Tesla’s responses to his separate
statement or Tesla’s objections to Murrain’s and his wife’s declarations. The court stated
that the objections did not fully comply with the California Rules of Court and that it did
not consider the separate statement to be evidence.
Murrain moved for a new trial. Murrain argued the trial court’s two tentative
rulings were contradictory despite no new evidence presented in Tesla’s reply filings as to
some claims, Tesla’s belated reply papers were accepted despite their inclusion of newly
submitted evidence already available when the motion was filed, he raised material facts
issues in his surreply, and the court did not resolve inferences in his favor and ignored
evidence contrary to Skinner’s deposition. Murrain also argued that judgment as a matter
of law is improper if unlawful yet legitimate reasons motivated an adverse employment
action. The trial court denied Murrain’s motion for new trial. The court found that any
differences between the two nonfinal tentative rulings could not support a new trial, it had
discretion to consider late filings and allowed Murrain to file a surreply, and Murrain
reiterated the same arguments the court had already considered and addressed.
11
II. DISCUSSION
A. TESLA’S REPLY EVIDENCE
Murrain argues Tesla’s belated reply should not have been considered where no
exceptional circumstances existed to warrant consideration of additional evidence. A trial
court’s consideration of additional reply evidence is not an abuse of discretion “ ‘so long
as the party opposing the motion for summary judgment has notice and an opportunity to
respond to the new material.’ ” (Jacobs v. Coldwell Banker Residential Brokerage Co.
(2017) 14 Cal.App.5th 438, 449.) The trial court here continued the hearing to allow
Murrain to submit a surreply. That the trial court did not adopt its tentative ruling on the
day of the hearing after accepting Tesla’s reply and allowing Murrain to submit a surreply
is not improper. (People v. Hatt (2018) 20 Cal.App.5th 321, 324.)
B. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate when there is no triable issue of material fact as
to each element of a particular cause of action such that the moving party is entitled to
judgment as a matter of law. (Code Civ. Proc., § 437c, subds. (c) & (p)(1); undesignated
statutory references are to this Code.) Courts determine a summary judgment motion
under a three-step process. (Hamburg v. Wal-Mart Stores, Inc. (2004)
116 Cal.App.4th 497, 503.) First, the court identifies the issues framed by the pleadings.
(Ibid.) Second, the court considers whether the moving party has met its burden to
establish or refute each element of a cause of action. (§ 437c, subds. (p)(1) & (p)(2).)
Third, if the moving party has made a prima facie showing that it is entitled to judgment
as a matter of law, the burden shifts to the opposing party to produce evidence of a triable
issue of material fact as to the cause of action or defense. (§ 437c, subds. (p)(1)
& (p)(2).)
In determining whether the parties have met their respective burdens, the court
must consider all evidence except that to which objections have been made and sustained.
(§ 437c, subd. (c).) The court may not weigh the evidence in coming to its determination
12
and must liberally construe the evidence and resolve any doubts in favor of the party
opposing the motion. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850;
Sharufa v. Festival Fun Parks, LLC (2020) 49 Cal.App.5th 493, 497.) We review an order
granting summary judgment de novo. (Sharufa, at p. 497.)
1. Associational Discrimination and Retaliation Claims
California has adopted a burden shifting test to review and resolve claims of
employment discrimination and retaliation on summary judgment and at trial. (Guz v.
Bechtel National, Inc. (2000) 24 Cal.4th 317, 354 (Guz).) Under the three-stage
McDonnell Douglas test, (1) the plaintiff must establish a prima facie case of
discrimination; (2) if the plaintiff is successful, the employer must offer a legitimate
nondiscriminatory reason for its actions; and (3) if the employer produces evidence on
that point, the plaintiff must show that employer’s reason was a pretext for
discrimination. (Guz, at pp. 354–356.) Murrain’s associational discrimination and
retaliation claims are subject to the McDonnell Douglas framework. (Husman v. Toyota
Motor Credit Corp. (2017) 12 Cal.App.5th 1168, 1193 (Husman) [FEHA discrimination
and retaliation]; Bareno v. San Diego Community College Dist. (2017)
7 Cal.App.5th 546, 560 (Bareno) [CFRA retaliation]; Wilson v. Murillo (2008)
163 Cal.App.4th 1124, 1133–1134 (Wilson) [ADA discrimination and retaliation claims];
Nelson v. United Technologies (1999) 74 Cal.App.4th 597, 613, fn. 5 [FMLA
retaliation].)
An employer moving for summary judgment in an employment context meets its
initial burden by negating an essential element of plaintiff’s prima facie case or showing
the adverse employment action is based upon legitimate, nondiscriminatory factors.
(Hicks v. KNTV Television, Inc. (2008) 160 Cal.App.4th 994, 1003.) Legitimate reasons
for the employment action are reasons “facially unrelated to prohibited bias, and which,
if true, would thus preclude a finding of discrimination.” (Guz, supra, 24 Cal.4th at
p. 358.) The evidence must allow the trier of fact to conclude it is “more likely than not
13
that one or more legitimate, nondiscriminatory reasons were the sole basis for the adverse
employment action.” (Featherstone v. Southern California Permanente Medical Group
(2017) 10 Cal.App.5th 1150, 1158 (Featherstone).)
If the employer makes a showing by competent and admissible evidence of
nondiscriminatory reasons for an adverse employment action, the employee has the
burden to show a triable issue that the adverse employment decision was made on a
prohibited discriminatory basis. (Guz, supra, 24 Cal.4th at pp. 356, 360.) “It is not
sufficient for an employee to make a bare prima facie showing or to simply deny the
credibility of the employer’s witnesses or to speculate as to discriminatory motive.”
(Zamora v. Security Industry Specialists, Inc. (2021) 71 Cal.App.5th 1, 56 (Zamora).) An
employee’s subjective beliefs in discrimination and uncorroborated self-serving
declarations also do not create a genuine issue of fact. (Doe v. Department of Corrections
& Rehabilitation (2019) 43 Cal.App.5th 721, 733.) The employee must produce
evidence “supporting a rational inference that intentional discrimination, on grounds
prohibited by the statute, was the true cause of the employer’s actions.” (Guz, at p. 361,
italics omitted.)
Pretext may be shown if the proffered reason was not based in fact, did not
motivate termination, or was insufficient to motivate termination. (Zamora, supra,
71 Cal.App.5th at p. 56.) Discriminatory animus cannot be inferred by simply showing
the employer was lying without some evidence of discriminatory motive. (Ibid.) The
employee must demonstrate weaknesses, inconsistencies, or contradictions in the
employer’s proffered reasons for its action such that a reasonable factfinder could
rationally find them unbelievable and infer the employer did not act for non-
discriminatory reasons. (McRae v. Department of Corrections & Rehabilitation (2006)
142 Cal.App.4th 377, 389.) Pretext may also be inferred the timing of the discharge
decision, the decisionmaker’s identity, and the employee’s job performance before
14
termination (Zamora, at p. 57), but suspicious timing alone is not sufficient to raise a
triable issue. (Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 353.)
In mixed motive cases where pretext cannot be established because the adverse
employment action is based in part on legitimate nondiscriminatory grounds, an
employee can avoid summary judgment by offering sufficient evidence to establish a
triable issue of material fact as to whether discrimination was a substantial motivating
reason for the adverse employment action. (Husman, supra, 12 Cal.App.5th at p. 1186.)
A causal link between the employer’s consideration of a protected characteristic and the
adverse employment action must be shown. (Ibid., citing Harris v. City of Santa Monica
(2013) 56 Cal.4th 203, 215, 232.) The central issue in a discrimination and retaliation
case is whether the evidence as a whole supports an inference that the action was the
product of discriminatory animus. (Light v. Department of Parks & Recreation (2017)
14 Cal.App.5th 75, 94 (Light).)
To prevail on his associational discrimination claims under the ADA and FEHA,
Murrain must demonstrate that he was subjected to adverse acts because of his
association with a disabled person. (Castro-Ramirez v. Dependable Highway Express,
Inc. (2016) 2 Cal.App.5th 1028, 1036–1037 (Castro-Ramirez) [FEHA]; Rope v. Auto-
Chlor System of Washington, Inc. (2013) 220 Cal.App.4th 635, 656–657, superseded by
statute on another ground [ADA].) The three types of associational discrimination
prohibited under the law are expense (the associated individual’s disability is costly to the
employer because that individual is covered by the employer’s health plan), disability by
association (the associated individual has an illness and the employer fears the employee
may also become infected or develop the disability), and distraction (the employee is
somewhat inattentive at work because the associated individual has a disability that
requires his attention but not so inattentive that he would need an accommodation such as
shorter hours to perform his to his employer’s satisfaction). (Rope, at p. 657.)
Retaliation similarly requires a showing that an employee was discriminated or
15
terminated for engaging in a protected act, such as taking protected leave. (Husman,
supra, 12 Cal.App.5th at p. 1193 [FEHA]; Bareno, supra, 7 Cal.App.5th at p. 560
[CFRA]; Wilson, supra, 163 Cal.App.4th at p. 1133 [ADA]; Dudley v. Department of
Transp. (2001) 90 Cal.App.4th 255, 261 [FMLA].)
The parties do not dispute that Tesla was aware Murrain took leave in 2017 to take
care of his disabled wife. Tesla argues Murrain was reassigned days after he returned
from his FMLA leave because Skinner “fully uncovered” preexisting issues with
Murrain’s management of his direct reports and eventually terminated due to his low
performance rating. The determination of whether an action rises to the level of an
adverse employment action requires consideration of the unique circumstances of the
affected employee as well as the workplace context of the claim. (Featherstone, supra,
10 Cal.App.5th at pp. 1161–1162.) While Skinner characterized Murrain’s reassignment
as voluntary, she acknowledged in an email that Murrain was “demoted to [s]upervisor.”
Murrain also testified that he felt he had little choice but to return to his previous position
based on Skinner’s comments and the potential harm to his reputation if he stayed in his
managerial position with a written disciplinary warning. A reasonable jury could
conclude Skinner’s request that Murrain return to the supervisor position or stay in his
managerial role with a write-up was an adverse employment action materially affecting
the conditions of his employment. (Id. at p. 1161.)
Triable issues exist as to whether Tesla’s justification for the demotion and
termination was pretextual. The week before Murrain asked for leave, Skinner positively
evaluated Murrain’s performance, stating Murrain “definitely … meets SolarCity’s
standard of excellence” and that she would “most likely” recommend him for increased
responsibilities within the year. The week after Murrain returned from leave, Skinner
decided Murrain must stay in his managerial position with a written disciplinary record or
return to his supervisor position. Evidence of a positive performance rating before an
employee’s protected act in comparison to negative ratings after the protected act raises
16
the inference of retaliatory animus. (Yanowitz v. L’Oreal USA, Inc. (2005)
36 Cal.4th 1028, 1062.) Murrain also testified that Skinner asked him during the
demotion meeting “if [his] family was the reason why [he] was so tired.” We view that
stray remark as circumstantial evidence of discrimination. (Reid v. Google, Inc. (2010)
50 Cal.4th 512, 539.)
The uncontested evidence reveals Murrain’s workload increased after he returned
from protected leave but before he was demoted. Tesla argues Murrain’s “increased
workload and scrutiny post-leave were responses to backlog and process changes” during
his absence. Murrain testified that Skinner did not complete many tasks while he was on
leave and asked him to increase his workload in March 2017 after he returned from leave.
Resolving doubts in favor of Murrain, those facts give rise to the inference that Skinner
proactively overburdened Murrain to encourage him to return to his supervisor position
and avoid “nuisance” from an employee associated with a disabled individual. (Castro-
Ramirez, supra, 2 Cal.App.5th at p. 1043.)
Skinner’s reasoning for demoting Murrain is inconsistent or not supported by the
evidence. Skinner declared that Murrain was demoted because he was having trouble
managing his team. She stated that she first learned during her coverage that one
employee was falsifying timecards that Murrain had approved and another employee was
doing no work during the workday. She terminated both employees while Murrain was
on leave. Murrain provided evidence that he disciplined the employee with performance
issues and informed Skinner of the employee’s performance issues before he went on
leave. Murrain also testified that he became aware of the timecard issue from one of his
direct reports, not Skinner. Emails show that the employee falsifying timecards could not
have been terminated during Murrain’s leave because Murrain investigated the issue with
Skinner’s approval after he returned from leave.
Tesla also provided inconsistent reasons for Murrain’s termination. It first argued
that Murrain was terminated six months after his leave solely because he received a “2”
17
on his objective performance review. When Murrain pointed to testimony stating that he
was told at his termination meeting that he was being fired because he “hated” Watts,
Tesla stated that Skinner had discretion to retain Murrain but decided to stop “fight[ing]
for him” after learning of interpersonal issues between Murrain and Watts.
Skinner’s explanation for Murrain’s termination is contradicted by the evidence.
(Zamora, supra, 71 Cal.App.5th at p. 56.) Skinner testified that she decided to terminate
Murrain due to his interpersonal skills after receiving comments from others including
Mantooth. Skinner testified that Mantooth and others “unanimously” agreed that Murrain
be terminated and their recommendation to terminate was “[t]he final straw.” Mantooth
however testified that she never recommended Murrain be terminated and would have
retained Murrain based on his performance despite his interpersonal issues. According to
Mantooth, Skinner changed her performance rating of Murrain from a “3/4” to a “2.”
Skinner also argued that she ultimately recommended Murrain’s termination because she
became aware that Murrain was having interpersonal issues with Watts. But she also
testified that she had heard about issues between Murrain and Watts before September 27,
2017 but she did not do anything because Mantooth was helping Murrain transfer to any
department he wanted to go.
Skinner testified that after she had a conversation with Watts about the
interpersonal issues with Murrain, she asked him to put his story in writing. (Watts then
sent Skinner an email two days after Skinner recommended Murrain’s termination.) But
she admitted that she did not inform Murrain about Watts’ complaint. An employer’s
failure to interview witnesses for potentially exculpatory information evidences pretext.
(Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 280.)
Considering all the evidence before the trial court, Murrain has shown that a
reasonable factfinder could rationally dismiss Tesla’s nondiscriminatory reason for his
demotion and discharge—poor performance—as not credible. (Light, supra,
18
14 Cal.App.5th at p. 94; Zamora, supra, 71 Cal.App.5th at p. 56.) Tesla is not entitled to
summary judgment as to the associational discrimination and retaliation claims.
2. Protected Leave Interference Claims
Interference claims under the FMLA and CFRA require a showing that a covered
employer denied an eligible employee entitlement to qualifying leave. (White v. County
of Los Angeles (2014) 225 Cal.App.4th 690, 701 [FMLA]; Moore v. Regents of
University of California (2016) 248 Cal.App.4th 216, 250 [CFRA].) Interference
includes actions that discourage an employee’s leave, mischaracterize an employee’s
leave, or treat an employee’s leave as a negative factor in employment decisions.
(29 C.F.R. § 825.220(b)–(c) (2025); Xin Liu v. Amway Corp. (9th Cir. 2003)
347 F.3d 1125, 1134–1136.) Interference claims under the FMLA and CFRA do not
involve the burden-shifting test articulated in McDonnell Douglas. (Faust v. California
Portland Cement Co. (2007) 150 Cal.App.4th 864, 879.)
Murrain has provided no evidence to rebut Tesla’s showing that it did not
discourage or deny the 2017 FMLA leave. Tesla demonstrates that Murrain was
informed of his leave rights, and Murrain acknowledged that he was never threatened
with job loss for taking or extending leave. He testified that Tesla told him he would be
“abandoning [his] job” only if he did not submit the required medical certification in a
timely manner. Murrain acknowledged that he requested FMLA leave to start on March
9, 2017, and that his leave did start on that date after Tesla reached out to him multiple
times to clarify his caretaking duties. While the medical certification Murrain submitted
in late February did state that Murrain required eight weeks of leave and while Murrain
took sick and personal leave in the weeks before his FMLA leave began, he provides no
evidence showing he requested his FMLA leave to begin earlier than March 9, 2017.
19
Murrain however testified that Skinner called him during his baby bonding leave
in 2016 and asked him to return to work early, which he did due to Skinner’s comments.1
Skinner declared that she never reached out to Murrain during his baby bonding leave,
pointing to his paystub and an email demonstrating Murrain’s IT access was cut off
during his leave. Drawing all inferences in favor of Murrain, Murrain’s testimony
invokes the possibility that Skinner contacted him on his personal cell phone or email and
Murrain completed the work from a personal computer. Fact issues remain regarding the
interference.
Murrain also argues that he was entitled to job restoration under the FMLA and
CFRA at the conclusion of his leave. (29 C.F.R. § 825.214 (2025); Cal. Code Regs.,
tit. 2, § 11089; see Sanders v. City of Newport (9th Cir. 2011) 657 F.3d 772, 778–779.)
The trial court granted summary judgment on that theory because Murrain did not raise
the theory until his surreply. Murrain argues it was not required to address the theory
because Tesla never addressed it in its motion. Arguments not developed or raised in
opposition to summary judgment are forfeited. (Meridian Financial Services, Inc. v.
Phan (2021) 67 Cal.App.5th 657, 704.) Regardless of the job restoration argument, Tesla
is not entitled to summary judgment as to the interference claims.
3. Wrongful Termination Claim
Because Tesla is not entitled to judgment as a matter of law as to the associational
discrimination, retaliation, and interference claims, the wrongful termination claim must
also survive summary judgment. (Prue v. Brady Co./San Diego, Inc. (2015)
242 Cal.App.4th 1367, 1377–1378.)
1
Tesla reiterates its objections to Murrain’s wife’s declaration on appeal. The
trial court did not rule on the objections but properly noted they remained preserved for
review on appeal. (§ 437c, subd. (q).) We do not rely on any challenged portion of the
declarations in reaching our conclusion. (Martin v. Inland Empire Utilities Agency (2011)
198 Cal.App.4th 611, 630–631.) Murrain’s wife’s statements also do not create a triable
issue as to the purported interference that occurred during Murrain’s FMLA leave in
2017.
20
C. CALIFORNIA LAW DISPUTE
Tesla argues that summary judgment should be affirmed because FEHA
protections do not apply to Murrain as an out-of-state employee. Tesla urges
consideration of the issue even though it did not cross appeal. An issue may be reviewed
on appeal despite the absence of a cross-appeal where the issue would result in the
judgment being affirmed regardless of any resolution in appellant’s favor. (Preserve
Poway v. City of Poway (2016) 245 Cal.App.4th 560, 586.) We have concluded Tesla is
not entitled to summary judgment as to all claims, and the judgment cannot be affirmed
regardless of whether the FEHA claims are nonviable. We do not consider Tesla’s
contention.
III. DISPOSITION
The judgment is reversed and the order granting summary judgment is vacated.
The trial court is directed to enter a new order denying summary judgment as to all
causes of action. Murrain shall recover costs on appeal by operation of California Rules
of Court, rule 8.278(a).
21
____________________________________
Grover, J.
WE CONCUR:
____________________________
Greenwood, P. J.
____________________________
Lie, J.
H052848
Murrain v. Tesla, Inc. et al.