Not So Fast! California Court of Appeals Reverses Summary Judgment In Favor Of Employer Who Determined That Employee ‘Voluntarily Resigned’ After Failure To Return From Medical Leave of Absence
Published by Eric A. Welter and Sean F. Daley on February 23, 2017
CFRA makes it an unlawful employment practice in California for an employer of 50 or more persons to refuse to grant a request by a covered employee to take up to 12 workweeks in any 12-month period for family care and medical leave.
In Bareno v. San Diego Community College District, the plaintiff appealed from a judgment entered in favor of Defendants San Diego Miramar College, San Diego Community College District, and San Diego Community College District Administrative Facilities Corporation (collectively “SDCCD”). The plaintiff argued that the trial court erroneously granted summary judgment to SDCCD because there were triable issues of material facts in dispute regarding her California Family Rights Act (“CFRA”) retaliation claim. A copy of the opinion can be found here.
In early 2013, the plaintiff was disciplined by SDCCD in relation to her employment as an administrative assistant. Thereafter, she requested medical leave from her supervisor. The plaintiff provided medical certification for this request for leave. After the time for her initial leave had ended, the plaintiff continued to be absent from work. The plaintiff allegedly tried to e-mail her supervisor a recertification of her need for additional medical leave, but SDCCD stated that her supervisor never received any such request from her for additional leave. As a result, SDCCD determined that the plaintiff had abandoned her position and “voluntarily resigned” because she had continued to be absent from work without authorization for an additional five consecutive days. After the plaintiff learned that SDCCD believed she voluntarily resigned as a result of her continued absence from work, the plaintiff attempted to provide SDCCD with information regarding the medical necessity of the leave that she had taken. SDCCD ultimately concluded that the plaintiff’s documentation did not support her claim that she had requested a leave of absence during the dates she was absent.
The plaintiff filed suit against SDCCD, alleging that in effectively terminating her employment, SDCCD retaliated against her for taking medical leave in violation of Government Code section 12945.2, commonly referred to as CFRA. See Cal. Code Regs., tit. 2, § 11087, subd. (b). SDCCD moved for summary judgment on the plaintiff’s sole claim for retaliation under CFRA, and the trial court granted the motion.
On appeal, the Court of Appeal reversed summary judgment in favor of SDCCD. The California Court of Appeal agreed with the plaintiff, finding that:
- there are material facts in dispute regarding whether the plaintiff sufficiently and timely requested leave for a CFRA-protected reason;
- there are material facts in dispute regarding whether plaintiff suffered an adverse employment action because she exercised her right to take CFRA-qualifying leave; and
- SDCCD’s proffer of a nonretaliatory reason for the plaintiff’s termination does not entitle it to summary judgment because there are material issues of fact in dispute regarding whether SDCCD reasonably did not believe the plaintiff’s absence was protected under CFRA and that she was instead voluntarily resigning.
CFRA makes it an unlawful employment practice in California for an employer of 50 or more persons to refuse to grant a request by a covered employee to take up to 12 workweeks in any 12-month period for family care and medical leave. Covered employees have a right to reinstatement in the same, or a comparable, position at the end of the leave. CFRA is intended to give employees an opportunity to take leave from work for certain personal or family medical reasons without jeopardizing job security.
As the Bareno case demonstrates, an employee’s need for medical leave is not always planned or foreseeable, and when it is not planned or foreseeable, an employee merely has to give you notice of CFRA-qualifying leave “as soon as practicable.” In Bareno, the California Court of Appeal clarified that:
CFRA and its implementing regulations envision a scheme in which employees are provided reasonable time within which to request leave for a qualifying purpose and to provide the supporting documentation that the requested leave was, in fact, for a qualifying purpose, particularly when the need for leave is not foreseeable or when circumstances have changed subsequent to an initial request for leave.
Employers may require that the employee provide any certification within no less than 15 calendar days of your request for such certification. Thus, as the Court of Appeal noted, “in some cases, the leave may begin before the employer receives certification [or recertification]” of the employee’s medical leave. CFRA leave may also continue without a recertification as long as the recertification is provided to the employer within a reasonable time.
Employers should also be aware that an employee does not need to mention CFRA when requesting leave to sufficiently put the employer on notice of the employee’s need for CFRA leave. If you have any concerns or difficulty determining whether the employee is requesting CFRA leave, you should inquire further of the employee to obtain necessary information concerning the leave. Employers should confirm the employee’s need for leave, and at a minimum, find out the commencement date and expected duration of the leave.Topics: adverse employment action, California, California Family Rights Act, CFRA, Family and Medical Leave Act, Government Code section 12945.2, leave of absence, medical leave, Retaliation, San Diego Community College District Administrative Facilities Corporation, SDCCD, summary judgment, triable issues of material facts