Filed 1/13/17
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
LETICIA BARENO, D069381
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2014-00003862-
CU-OE-CTL)
SAN DIEGO COMMUNITY COLLEGE
DISTRICT,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of San Diego County,
Richard E.L. Strauss, Judge. Reversed.
Valencia & Cywinska, Mark Joseph Valencia and Izabela Cywinska Valencia
for Plaintiff and Appellant.
Artiano Shinoff, Ray J. Artiano, Jack M. Sleeth, Jr. and Paul V. Carelli IV for
Defendant and Respondent.
I.
INTRODUCTION
Plaintiff Leticia Bareno appeals from a judgment entered in favor of defendants
San Diego Miramar College (the College), San Diego Community College District,
and San Diego Community College District Administrative Facilities Corporation.1
In early 2013, Bareno was disciplined by her employer, the College, in relation
to her employment as an administrative assistant. Thereafter, Bareno required medical
treatment and accompanying leave from work, and she requested medical leave from
her supervisor. Bareno provided medical certification for this request for leave. After
the time frame specified in Bareno's initial request for leave had ended, Bareno
continued to be absent from work. Bareno had attempted to e-mail her supervisor a
recertification of her need for additional medical leave, but the College claimed that
Bareno's supervisor did not receive any such request from Bareno for additional leave.
As a result, after Bareno continued to be absent from work for an additional five
consecutive days, the College took the position that she had "voluntarily resigned."
After Bareno learned that the College considered her to have voluntarily resigned as a
result of her continued absence from work, Bareno attempted to provide the College
with information regarding the medical necessity of the leave that she had taken. The
College refused to reconsider its position.
1 We will refer to all three defendants jointly as "SDCCD."
2
Bareno filed suit against all three defendants, alleging that in effectively
terminating her employment, SDCCD retaliated against her for taking medical leave,
in violation of Government Code section 12945.2, the Moore-Brown-Roberti Family
Rights Act, commonly referred to as the California Family Rights Act (CFRA). (See
Cal. Code Regs., tit. 2, § 11087, subd. (b).)2 SDCCD moved for summary judgment
on Bareno's sole claim for retaliation under CFRA, and the trial court granted the
motion.
On appeal, Bareno contends that the trial court erred in granting summary
judgment on her CFRA retaliation claim because there remain triable issues of
material fact in dispute. We agree. Because there remain material issues in dispute
and the record is capable of supporting a judgment in favor of Bareno, the trial court
erred in granting summary judgment in favor of SDCCD. We therefore reverse the
judgment and remand the matter for further proceedings.
2 CFRA is California's counterpart to the federal Family and Medical Leave Act
of 1993 (FMLA) (29 U.S.C. §§ 2601-2654). (Richey v. AutoNation, Inc. (2015) 60
Cal.4th 909, 913, 919 (Richey).) "California courts routinely rely on federal cases
interpreting the FMLA when reviewing the CFRA. (Neisendorf [v. Levi Strauss & Co.
(2006) 143 Cal.App.4th 509,] 514, fn. 1.)" (Rogers v. County of Los Angeles (2011)
198 Cal.App.4th 480, 487 (Rogers); see Cal. Code Regs., tit. 2, § 11096 [incorporating
by reference federal FMLA regulations to "the extent that they are within the scope of
Government Code section 12945.2 and not inconsistent with [the regulations
implementing the CFRA], other state law, or the California Constitution"].)
3
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual background
Bareno began working as a Student Services Assistant for the College in March
1999. In 2000, Bareno was promoted to Senior Secretary at the School of Business,
Technical Careers and Workforce Development.
In 2006, the College suspended Bareno for a two-week period and
recommended that her employment be terminated. However, rather than terminate
Bareno's employment, the College entered into a "Last Chance Agreement"
(Agreement) with Bareno. The Agreement indicated that the College agreed to
postpone its termination recommendation to the Board of Trustees in exchange for
Bareno following specified terms and conditions of her employment, as set forth in the
Agreement. Among other things, Bareno agreed to maintain regular and predictable
attendance and to comply with the College's policies and procedures for reporting
absences. The Agreement was in effect for 18 months, and expired in May 2008.
The record reveals no additional issues documented in Bareno's personnel file
until 2012. In May 2012, Dean Lynne Ornelas, Bareno's supervisor, issued Bareno a
"counseling conference letter" to memorialize an oral discussion between the two
regarding Bareno's "excessive absences" and "disagreements . . . over the Fall 2012
Schedule." In August 2012, Ornelas issued Bareno a written reprimand, citing a
number of problems with Bareno's work, including absences without reasonable cause,
incompetence, inefficiency, and neglect of duty.
4
In January 2013, Ornelas prepared a written recommendation that Bareno be
suspended for performance issues similar to those noted in the written reprimand from
August 2012. On February 14, 2013, the College held a predisciplinary meeting with
Bareno to discuss the problems that Ornelas had identified. On February 19, the
College disciplined Bareno with a three-day suspension from work with no pay. The
suspension was set to run from Wednesday, February 20 through Friday, February 22,
2013.
According to Bareno, on Monday, February 25, 2013, she called Ornelas at
4:30 a.m. and told Ornelas that she would not be at work because she needed to seek
medical attention. Bareno indicated that she was sick, depressed, stressed, and had to
go to the hospital. Later that evening, Bareno e-mailed Ornelas to say that she would
be out on medical leave through March 1, 2013, and stated that she would contact
Ornelas "sometime on Friday[, March 1] to inform you of the date of my return to
work."
The following day, February 26, Ornelas responded to Bareno's e-mail, and
copied the College's Vice President, Jerry Buckley, informing Bareno that before she
could return to work, she would have to provide a physician's statement "on either the
District's station[e]ry, or on the physician's official station[e]ry."
On February 27, Bareno responded to Ornelas's e-mail with an e-mail stating,
"Thank you for the information." The same day, Bareno e-mailed Ornelas a copy of a
"Work Status Report" from Kaiser Permanente indicating that Bareno had a medical
need to take leave from work from February 25, 2013 through March 1, 2013. The
5
document identified the onset of the condition as February 25, 2013, and indicated that
Bareno's next appointment with a medical provider would take place on March 1,
2013.3 There is no indication in the record that anyone at the College regarded this
document as insufficient certification to support Bareno's request for medical leave
during the period between February 25 and March 1, 2013.
On Friday, March 1, 2013, Bareno e-mailed Buckley regarding her desire to
appeal the three-day suspension. Bareno also indicated in her e-mail to Buckley that
she was "out on a . . . medical leave" and would "notify all concern[ed] of [her]
return."
Also on March 1, Bareno went to a UPS Store where she utilized the UPS
Store's e-mail system to e-mail Ornelas a copy of a new "Work Status Report" from
Kaiser Permanente indicating that Bareno required leave from work for a medical
reason during the period of time between March 1, 2013 and March 8, 2013.4
Specifically, the report, which appears on a Kaiser Permanente form, indicated that it
had been prepared by Dr. Evan George Tzakis, M.D. The form identified Bareno as
the subject of the order based on an "[e]ncounter" with her on March 1, 2013 at
3 Specifically, the report, which appears on a Kaiser Permanente form, indicated
that it had been prepared by Kristen Tracy Lennon (MFT). The form identified
Bareno as the subject of the order based on an "[e]ncounter" with her on February 25,
2013 at 2:00 p.m. The form included the title "Work Status Report" and indicated the
date of "onset of condition" as "2/25/2013." The form also stated, "Off Work. [¶]
This patient is placed off work from 2/25/2013 through 3/1/2013." (Underscore
omitted.)
4 A copy of the e-mail in the record shows that it was sent from
"store0571@theupsstore.com" and was sent to Ornelas's work e-mail address and
Bareno's personal e-mail address. The e-mail was sent at 4:28 p.m.
6
1:00 p.m. The form included the title "Work Status Report" and indicated the date of
"onset of condition" as "2/25/2013." The form also stated, "Off Work. [¶] This
patient is placed off work from 3/1/2013 through 3/8/2013." (Underscore omitted.)
This "Work Status Report" is in the same format as, and includes similar information
to, the "Work Status Report" that Bareno had submitted to Ornelas on February 27.
According to Ornelas, she did not receive Bareno's March 1 e-mail.
Bareno did not appear for work on Monday, March 4. That day, Ornelas
contacted the human resources office for the College and informed someone there "of
[Bareno's] absence without any contact" for that day. Ornelas forwarded Bareno's
February 25 medical request, as well. On March 6, Robin Lewison e-mailed Ornelas
and Buckley, informing them that five consecutive days of unauthorized absences
would constitute an abandonment of an employee's position under the collective
bargaining agreement governing Bareno's employment.
Bareno did not report to work for the rest of the week of March 4, 2013.
Bareno testified that sometime during the time period between March 1 and March 8,
she received a call "from one of [her] coworkers, but [she] just could not discuss
anything," and so she "did not speak to anybody."5 According to Bareno, her
coworker left a message and said that she was " 'checking up on [Bareno].' "6 Bareno
5 The coworker was identified as an administrative assistant to Buckley.
6 There is no indication in the record that the person who called Bareno informed
Bareno that she was being considered absent without authorization at that point in
time, or that the individual was calling on behalf of the College to inquire of Bareno
whether she continued to need leave for medical reasons.
7
did not return the telephone call. Bareno did not call anyone at the College during
those five days.
On Friday, March 8, 2013, Will Surbrook, Vice Chancellor of Human
Resources, sent a letter to Bareno via certified mail to inform her that her unauthorized
absences constituted a voluntary resignation, effective March 11, 2013.7 The letter
indicated that Bareno had a right to request a meeting with her supervisor, within five
days of the proof of mailing of the notice, if she believed the proposed action was
incorrect. The record does not contain information as to when the letter was delivered
to Bareno's home address that was on file with the College.
Also on March 8, Peter Alvino engaged in an e-mail exchange with Ornelas
regarding Bareno's absences. Alvino said to Ornelas, "Good question. As you know,
her leave is only approved through March 1st. However, as you may also know, she
may request from her physician an extension from March 4th and forward."8
The following day, Saturday, March 9, Bareno e-mailed Ornelas another "Work
Status Report" from Kaiser Permanente that authorized her leave from work for the
period between March 8, 2013 and March 15, 2013. The "Work Status Report"
identified February 25, 2013, as the date of onset of the condition for which Bareno
7 The letter was sent to Bareno at the address the college had on file for her. The
letter also indicates that it was delivered via "HOME DELIVERY," although it is
unclear to what method of delivery this phrase refers. There is no other indication in
the record that a copy of the letter was delivered to Bareno's residence.
8 The record does not disclose Alvino's position at the College, although Bareno
identifies him as "the Director of Employee Relations," and it also does not reveal the
question posed by Ornelas to which Alvino responded, "Good question."
8
required continued leave from work. In this e-mail, Bareno also informed Ornelas that
she intended to return to work on April 8, 2013.
On the morning of Monday, March 11, 2013, Ornelas e-mailed Robin Lewison
in the College's Human Resource Department, Buckley, and Alvino to inform them of
the March 9 e-mail Bareno had sent her. Ornelas asked, "Can I require a medical
verification for all days missed since her suspension?" Lewison's response did not
directly answer Ornelas's question, but instead quoted a portion of the collective
bargaining agreement governing Bareno's employment regarding the provision stating
that absence from duty without authorized leave for five days constitutes a voluntary
resignation, and indicating to Ornelas that she should not contact Bareno, but should
instead wait to see whether Bareno would request a meeting with her supervisor
pursuant to the collective bargaining agreement.
On Wednesday, March 13, 2013, Bareno again e-mailed Ornelas medical leave
notices from Kaiser Permanente for the period between March 8 and March 15, 2013,
as well as an SDCCD form used to request a formal leave of absence. Ornelas
forwarded Bareno's e-mail to Lewison, who responded, "Our position remains the
same in that we wait for the unit member to contact you, Lynne, to request a meeting."
On Monday, March 18, Bareno faxed to Ornelas her SDCCD form seeking a
formal leave of absence, as well as Kaiser Permanente "Work Status Reports"
indicating the need for leave between March 8 and March 19, 2013. That same day,
Bareno, who had been seeking medical treatment in Riverside County during these
events, traveled to San Diego to retrieve mail from her post office box. On this date,
9
Bareno finally received Surbrook's March 8, 2013 letter informing her of her
"voluntary resignation."9 Bareno immediately telephoned Surbrook, who "told
[Bareno] bluntly that he could no longer talk to [her] because [she] was no longer an
employee for the District." That day, Surbrook sent Bareno another letter via certified
mail and "HOME DELIVERY," in which he referenced the College's March 8 letter
informing Bareno that her five days of "unauthorized absence[s] constituted
abandonment of position." Surbrook's letter also stated that Bareno had possessed the
right to meet with her supervisor if she had made the request within five working days
of proof of the mailing of the prior notice, but that since she had not made such a
request, her "voluntary resignation" was effective as of March 11, 2013.
On Wednesday, March 20, 2013, Bareno received Surbrook's March 18, 2013
letter. On Monday, March 25, 2013, Bareno drove to the school and scheduled an
appointment to speak with Chancellor Constance Carroll. Thereafter, Surbrook called
Bareno and agreed to schedule a meeting with her and Alvino.
Bareno met with Alvino on April 3. She provided him with copies of all of her
documentation from Kaiser Permanente and reiterated her position that she had been
on medical leave from February 25th forward, and that she had not voluntarily
resigned. Bareno also mailed, via certified mail, copies of her medical documents to
both Lewison and Alvino on April 5. These documents included the Kaiser
Permanente "Work Status Report" indicating that a doctor had placed Bareno on
9 Bareno states in her declaration that this letter was neither delivered to her
home, nor personally served on her.
10
medical leave from work between March 1 and March 8, 2013—i.e., during the
disputed time period.
More than ten days later, on Tuesday, April 16, 2013, Alvino mailed Bareno a
letter informing her that his "office received your recent documents," but had
ultimately concluded that "[n]one of the documents mailed to us supports your claim
that you requested a leave of absence for the dates in question and that you had
contacted your supervisor." Alvino's letter further stated that the College continued to
"accept[ ] [Bareno's] voluntary resignation." Bareno apparently received this letter on
the same day it was sent.
Three days later, April 19, 2013, Bareno mailed another package to Alvino.
This package included a copy of the "Work Status Report" indicating Bareno's need to
be off of work between March 1 and March 8 for medical reasons, as well as a copy of
the e-mail sent to Ornelas from the UPS Store in which Bareno had attached this
"Work Status Report." During a telephone call, Alvino told Bareno that he would
review the materials and would discuss the issue with "the Committee." Bareno did
not hear from Alvino after that point in time.
B. Procedural background
Bareno filed a complaint against SDCCD on February 21, 2014, alleging one
cause of action for retaliation in violation of CFRA. SDCCD moved for summary
judgment, which the trial court granted on October 9, 2015. The court then entered
judgment in favor of SDCCD on October 27. Bareno filed a timely notice of appeal.
11
III.
DISCUSSION
A. Applicable legal standards
1. Summary judgment standards
"Summary judgment is granted when a moving party establishes the right to the
entry of judgment as a matter of law. [Citation.] On appeal, the reviewing court
makes ' "an independent assessment of the correctness of the trial court's ruling,
applying the same legal standard as the trial court in determining whether there are any
genuine issues of material fact or whether the moving party is entitled to judgment as a
matter of law." ' " (Hesperia Citizens for Responsible Development v. City of Hesperia
(2007) 151 Cal.App.4th 653, 658.)
In independently examining the record on appeal "to determine whether triable
issues of material fact exist," we " 'consider[ ] all the evidence set forth in the moving
and opposition papers except that to which objections were made and sustained.' "
(Ambriz v. Kelegian (2007) 146 Cal.App.4th 1519, 1530 (Ambriz).) Further, " 'we
must view the evidence in a light favorable to plaintiff as the losing party [citation],
liberally construing [the plaintiff's] evidentiary submission while strictly scrutinizing
the defendants' own showing, and resolving any evidentiary doubts or ambiguities in
plaintiff's favor.' " (Ibid., italics added.)
" 'In the summary judgment context, . . . the evidence must be incapable of
supporting a judgment for the losing party in order to validate the summary
judgment.' " (Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 864,
12
877 (Faust), italics added.) " 'Thus even though it may appear that a trial court took a
"reasonable" view of the evidence, a summary judgment cannot properly be affirmed
unless a contrary view would be unreasonable as a matter of law in the circumstances
presented.' " (Ibid., italics added.)
2. Overview of CFRA
In 1991, the Legislature enacted CFRA (Gov. Code,10 § 12945.2). CFRA "is
intended to give employees an opportunity to take leave from work for certain
personal or family medical reasons without jeopardizing job security." (Nelson v.
United Technologies (1999) 74 Cal.App.4th 597, 606 (Nelson).)
Generally, CFRA makes it an unlawful employment practice for an employer
of 50 or more persons to refuse to grant a request by an employee to take up to 12
workweeks in any 12-month period for family care and medical leave. (§ 12945.2,
subds. (a), (c)(2)(A).) "CFRA has two principal components: a right to leave of up to
12 weeks in any 12-month period to care for a family member or for the employee's
own medical condition (Gov. Code, § 12945.2, subds. (a), (c)(2)(A)), and a right to
reinstatement in the same, or a comparable, position at the end of the leave. (Gov.
Code, § 12945.2, subd. (a).)" (Richey, supra, 60 Cal.4th at p. 919.)
"Violations of . . . CFRA generally fall into two types of claims:
(1) 'interference' claims in which an employee alleges that an employer denied or
interfered with her substantive rights to protected medical leave, and (2) 'retaliation'
10 Further statutory references are to the Government Code unless otherwise
indicated.
13
claims in which an employee alleges that she suffered an adverse employment action
for exercising her right to CFRA leave." (Rogers, supra, 198 Cal.App.4th at pp. 487-
488.)11
Further, in order to ensure that employees are aware of their rights under
CFRA, employers who are subject to CFRA are required to provide notice to their
employees of the right to request CFRA leave. (Cal. Code Regs., tit. 2, § 11095, subd.
(a); see also Cal. Code Regs., tit. 2, § 11091, subd. (a)(5).) The text of the minimum
notice requirements is set forth at California Code of Regulations, title 2, section
11095, subdivision (d).12 Failure of the employer to give or post the required notice
11 The statutory authority for an "interference" claim arises from section 12945.2,
subdivision (t), which makes it unlawful for an employer "to interfere with, restrain, or
deny the exercise of, or the attempt to exercise, any right" provided by CFRA. The
statutory authority for a "retaliation" claim arises from section 12945.2, subdivision
(l)(1), which makes it unlawful to retaliate against any individual because of his or her
exercise of the right to family care or medical leave as provided by CFRA.
12 The minimum notice requirements are as follows, in relevant part:
"FAMILY CARE AND MEDICAL LEAVE (CFRA LEAVE)
AND PREGNANCY DISABILITY LEAVE
"Under the California Family Rights Act of 1993 (CFRA), if you
have more than 12 months of service with us and have worked at
least 1,250 hours in the 12-month period before the date you want
to begin your leave, you may have a right to a family care or
medical leave (CFRA leave). This leave may be up to 12
workweeks in a 12-month period for the birth, adoption, or foster
care placement of your child or for your own serious health
condition or that of your child, parent or spouse. While the law
provides only unpaid leave, employees may choose or employers
may require use of accrued paid leave while taking CFRA leave
under certain circumstances.
14
regarding an employee's right to request CFRA leave precludes an employer "from
taking any adverse action against the employee, including denying CFRA leave, for
failing to furnish the employer with advance notice of a need to take CFRA leave."
(Cal. Code Regs., tit. 2, § 11091, subd. (a)(5).)
"Even if you are not eligible for CFRA leave, if you are disabled
by pregnancy, childbirth or a related medical condition, you are
entitled to take a pregnancy disability leave of up to four months,
depending on your period(s) of actual disability. If you are
CFRA-eligible, you have certain rights to take BOTH a
pregnancy disability leave and a CFRA leave for reason of the
birth of your child. Both leaves contain a guarantee of
reinstatement –for pregnancy disability it is to the same position
and for CFRA it is to the same or a comparable position –at the
end of the leave, subject to any defense allowed under the law.
"If possible, you must provide at least 30 days' advance notice for
foreseeable events (such as the expected birth of a child or a
planned medical treatment for yourself or of a family member).
For events that are unforeseeable, we need you to notify us, at
least verbally, as soon as you learn of the need for the leave.
Failure to comply with these notice rules is grounds for, and may
result in, deferral of the requested leave until you comply with
this notice policy.
"We may require certification from your health care provider
before allowing you a leave for pregnancy disability or for your
own serious health condition. We also may require certification
from the health care provider of your child, parent or spouse, who
has a serious health condition, before allowing you a leave to take
care of that family member. When medically necessary, leave
may be taken on an intermittent or reduced work schedule." (Cal.
Code Regs., tit. 2, § 11095, subd. (d).)
15
It is generally an unlawful business practice "for a covered employer to refuse
to grant, upon reasonable request, a CFRA leave to an eligible employee." (Cal. Code
Regs., tit. 2, § 11088, subd. (a).)13
3. The legal framework for considering retaliation claims under CFRA in the
summary judgment context
The elements of a cause of action for retaliation in violation of CFRA are:
" '(1) the defendant was an employer covered by CFRA; (2) the plaintiff was an
employee eligible to take CFRA [leave]; (3) the plaintiff exercised her right to take
leave for a qualifying CFRA purpose; and (4) the plaintiff suffered an adverse
employment action, such as termination, fine, or suspension, because of her exercise of
her right to CFRA [leave].' " (Faust, supra, 150 Cal.App.4th at p. 885.) Like claims
for discrimination, CFRA retaliation claims, such as the one Bareno asserts here, are
subject to the McDonnell Douglas burden-shifting analysis. (Loggins v. Kaiser
Permanente Internat. (2007) 151 Cal.App.4th 1102, 1108-1109 (Loggins).
In order to establish a prima facie case for retaliation as required by the first
prong of the McDonnell Douglas burden-shifting analysis, an employee must show:
"(1) he or she engaged in a 'protected activity[ ]' [such as taking leave for a CFRA-
protected purpose,] (2) the employer subjected the employee to an adverse
employment action, and (3) a causal link existed between the protected activity and the
employer's action." (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) "If
13 There exists a permissible limitation on the amount of total CFRA leave
available to parents who work for the same employer for the purpose of adoption,
birth, or foster care placement. (Cal. Code Regs., tit. 2, § 11088, subd. (c).)
16
the employee successfully establishes these elements and thereby shows a prima facie
case exists, the burden shifts to the employer to provide evidence that there was a
legitimate, nonretaliatory reason for the adverse employment action." (Loggins, supra,
151 Cal.App.4th at p. 1109.) If the employer satisfies this prong by producing
evidence demonstrating the existence of "a legitimate reason for the adverse
employment action, 'the presumption of retaliation " ' "drops out of the picture," ' " '
[citation], and the burden shifts back to the employee to provide 'substantial responsive
evidence' that the employer's proffered reasons were untrue or pretextual." (Ibid.)
In applying the McDonnell Douglas test in the context of a summary judgment
motion, however, " '[w]e must keep in mind that the McDonnell Douglas test was
originally developed for use at trial [citation], not in summary judgment
proceedings.' " (Arteaga v. Brink's, Inc. (2008) 163 Cal.App.4th 327, 343-344
(Arteaga).)
" ' "In such pretrial [motion] proceedings, the trial court will be
called upon to decide if the plaintiff has met his or her burden of
establishing a prima facie case of unlawful [retaliation]. If the
employer presents admissible evidence either that one or more of
plaintiff's prima facie elements is lacking, or that the adverse
employment action was based on legitimate, non[retaliatory]
factors, the employer will be entitled to summary judgment unless
the plaintiff produces admissible evidence which raises a triable
issue of fact material to the defendant's showing. In short, by
applying McDonnell Douglas's shifting burdens of production in
the context of a motion for summary judgment, 'the judge [will]
determine whether the litigants have created an issue of fact to be
decided by the jury.' " . . . Thus, " '[a]lthough the burden of proof
in a [retaliation] action claiming an unjustifiable [termination]
ultimately rests with the plaintiff . . . , in the case of a motion for
summary judgment or summary issue adjudication, the burden
rests with the moving party to negate the plaintiff's right to prevail
17
on a particular issue. . . . In other words, the burden is reversed in
the case of a summary issue adjudication or summary judgment
motion.' " ' " (Id. at p. 344.)
" 'Whether judgment as a matter of law is appropriate in any particular case will
depend on a number of factors. These include the strength of the plaintiff's prima facie
case, the probative value of the proof that the employer's explanation is false, and any
other evidence that supports the employer's case.' " (Guz v. Bechtel National, Inc.
(2000) 24 Cal.4th 317, 362.) We therefore reiterate: "[M]any employment cases
present issues of intent, . . . motive, and hostile working environment, issues not
determinable on paper. Such cases . . . are rarely appropriate for disposition on
summary judgment, however liberalized [summary judgment standards may] be."
(Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 286, italics added.)
B. Analysis
According to SDCCD, Bareno's CFRA retaliation claim fails because the
undisputed evidence demonstrates that she cannot satisfy the third element of her
claim—i.e., she cannot show that she " 'exercised her right to take leave for a
qualifying CFRA purpose.' " (Faust, supra, 150 Cal.App.4th at p. 885.) As SDCCD
notes, the trial court determined that Bareno could not establish her prima facie case
on summary judgment for two reasons: (1) "she did not show [that] she requested
leave from the College," and (2) "even if she did request the leave for March 4-8 via
the UPS email, the doctor's note she offered did not meet the requirements of the
CFRA to constitute a 'reasonable request.' " SDCCD contends that the trial court's
reasons were correct and support judgment in its favor.
18
SDCCD also argues on appeal that Bareno's CFRA retaliation claim fails
because the undisputed evidence demonstrates that she cannot satisfy the fourth
element of her claim—i.e., she cannot show that she suffered an adverse employment
action because she exercised her right to take CFRA leave. (Faust, supra, 150
Cal.App.4th at p. 885.)
Our review of the record leads us to conclude that SDCCD was not entitled to
summary judgment on these grounds. We must therefore reverse the trial court's order
granting judgment in favor of SDCCD.
1. There are material issues in dispute regarding whether Bareno sufficiently
and timely requested leave for a CFRA-protected reason
SDCCD asserts that the trial court correctly concluded that SDCCD was
entitled to judgment on Bareno's CFRA retaliation cause of action because Bareno
"did not properly notify the College that she was taking medical leave." (Formatting
omitted.) Alternatively, SDCCD contends that Bareno did not exercise her right to
CFRA leave for the period between March 4 and March 8, 2013 because the "medical
documentation" (formatting omitted) that she provided to SDCCD was "inadequate."
(Formatting omitted.) The record does not support the conclusion that SDCCD is
entitled to judgment as a matter of law with respect to either contention. Rather, the
evidence, when viewed in the light most favorable to Bareno, demonstrates that she
did provide sufficient notice of her need for CFRA-protected leave.
19
a. Additional relevant legal standards
CFRA does not itself define what constitutes a valid "request" for CFRA leave.
Instead, the Legislature expressly delegated to the Fair Employment and Housing
Commission (the Commission) the task of "adopt[ing] a regulation specifying the
elements of a reasonable request" for CFRA leave. (§ 12945.2, subd. (a).) CFRA
does require that if an "employee's need for a leave pursuant to this section is
foreseeable, the employee shall provide the employer with reasonable advance notice
of the need for the leave." (§ 12945.2, subd. (h), italics added.) CFRA is silent with
respect to how an employee may request leave for a CFRA-protected purpose that is
not foreseeable.14
The regulation adopted by the Commission regarding requests for leave
provides in relevant part that, to request CFRA leave, "[a]n employee shall provide at
least verbal notice sufficient to make the employer aware that the employee needs
CFRA leave, and the anticipated timing and duration of the leave. The employee need
not expressly assert rights under CFRA or FMLA, or even mention CFRA or FMLA,
to meet the notice requirement; however, the employee must state the reason the leave
is needed, such as, for example, the expected birth of a child or for medical treatment.
The mere mention of 'vacation,' other paid time off, or resignation does not render the
notice insufficient, provided the underlying reason for the request is CFRA-qualifying,
14 The Commission's implementing regulations address situations in which an
employee is unable to provide advance notice to an employer of his or her need for
CFRA leave.
20
and the employee communicates that reason to the employer. The employer should
inquire further of the employee if necessary to determine whether the employee is
requesting CFRA leave and to obtain necessary information concerning the leave (i.e.,
commencement date, expected duration, and other permissible information)." (Cal.
Code Regs., tit. 2, § 11091, subd. (a)(1), italics added.)
This provision appears to presume the existence of circumstances in which an
employee is able to provide an employer with notice of the need for leave. Indeed, the
regulation permits employers to "require that employees provide at least 30 days'
advance notice before CFRA leave is to begin if the need for the leave is foreseeable
based on an expected birth, placement for adoption or foster care, or planned medical
treatment for a serious health condition of the employee or a family member." (Cal.
Code Regs., tit. 2, § 11091, subd. (a)(2), italics added.) However, the regulations
provide that this 30-day general rule is inapplicable when the need for medical leave is
not foreseeable: "If 30 days' notice is not practicable, such as because of a lack of
knowledge of approximately when leave will be required to begin, a change in
circumstances, or a medical emergency, notice must be given as soon as practicable."
(Cal. Code Regs., tit. 2, § 11091, subd. (a)(3), italics added.) Further, "[a]n employer
shall not deny a CFRA leave, the need for which is an emergency or is otherwise
unforeseeable, on the basis that the employee did not provide advance notice of the
need for the leave, so long as the employee provided notice to the employer as soon as
practicable." (Cal. Code Regs., tit. 2, § 11091, subd. (a)(4), italics added.)
21
In response to a request for leave for a CFRA-protected purpose, CFRA permits
an employer to request "certification" from an employee who seeks to take CFRA
protected leave for his or her own medical care. In this regard, CFRA provides:
"(k)(1) An employer may require that an employee's request for
leave because of the employee's own serious health condition be
supported by a certification issued by his or her health care
provider. That certification shall be sufficient if it includes all of
the following:
"(A) The date on which the serious health condition commenced.
"(B) The probable duration of the condition.
"(C) A statement that, due to the serious health condition, the
employee is unable to perform the function of his or her position.
"(2) The employer may require that the employee obtain
subsequent recertification regarding the employee's serious health
condition on a reasonable basis, in accordance with the procedure
provided in paragraph (1), if additional leave is required."
(§ 12945.2, subd. (k)(1) & (2).)
If an employer has doubts regarding the validity of the employee's proffered
certification, CFRA establishes a specific procedure that the employer must utilize
before the employer may reject the employee's request for CFRA leave:
"(k) . . . [¶] . . . [¶] (3)(A) In any case in which the employer has
reason to doubt the validity of the certification provided pursuant
to this section, the employer may require, at the employer's
expense, that the employee obtain the opinion of a second health
care provider, designated or approved by the employer,
concerning any information certified under paragraph (1).
"(B) The health care provider designated or approved under
subparagraph (A) shall not be employed on a regular basis by the
employer.
22
"(C) In any case in which the second opinion described in
subparagraph (A) differs from the opinion in the original
certification, the employer may require, at the employer's
expense, that the employee obtain the opinion of a third health
care provider, designated or approved jointly by the employer and
the employee, concerning the information certified under
paragraph (1).
"(D) The opinion of the third health care provider concerning the
information certified under paragraph (1) shall be considered to
be final and shall be binding on the employer and the employee."
(§ 12945.2, subd. (k)(3).)
The Commission's implementing regulations provide further detail regarding
how CFRA is to be carried out in the workplace. For example, the regulations define
"certification" for purposes of CFRA:
"(a) 'Certification' means a written communication from the
health care provider of the child, parent, spouse, or employee with
a serious health condition to the employer of the employee
requesting a family care leave to care for the employee's child,
parent or spouse, or a medical leave for the employee's own
serious health condition.
"[¶] . . . [¶]
"(2) For medical leave for the employee's own serious health
condition, this certification need not, but may, at the employee's
option, identify the serious health condition involved. Any
certification shall contain the information identified in
Government Code section 12945.2, as is demonstrated in section
11097 of these regulations. For purposes of the certification
'unable to perform the function of his or her position' means that
an employee is unable to perform any one or more of the essential
functions of his or her position. The certification shall contain:
"(A) The date, if known, on which the serious health condition
commenced,
"(B) The probable duration of the condition, and
23
"(C) A statement that, due to the serious health condition, the
employee is unable to work at all or is unable to perform any one
or more of the essential functions of his or her position." (Cal.
Code Regs., tit. 2, § 11087, subd. (a)(2).)
The implementing regulations further detail that an employer "may require that
the employee provide any certification within no less than 15 calendar days of the
employer's request for such certification, unless it is not practicable for the employee
to do so despite the employee's good faith efforts. This means that, in some cases, the
leave may begin before the employer receives the certification. Absent extenuating
circumstances (e.g., unavailability of healthcare provider), if the employee fails to
timely return the certification, the employer may deny CFRA protections for the leave
following the expiration of the 15-day time period until a sufficient certification is
provided. The same rules apply to recertification. If the employee never produces the
certification or recertification, the leave is not CFRA leave. At the time the employer
requests certification, the employer also must advise the employee of the anticipated
consequences of his or her failure to provide adequate certification." (Cal. Code
Regs., tit. 2, § 11091, subd. (b)(3), italics added.)
When viewed as a whole, it is clear 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
certification to demonstrate 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.
24
Given this legal framework, it is not surprising that the question "[w]hether
notice is sufficient under CFRA is a question of fact." (Avila v. Continental Airlines,
Inc. (2008) 165 Cal.App.4th 1237, 1255.)
b. The evidence is capable of supporting a finding that Bareno
sufficiently requested leave for a CFRA-qualifying purpose
SDCCD asserts that Bareno was absent on Monday, March 4, 2013, without
"prior notice" from Bareno, and that it is undisputed that she "did not call in nor
respond to inquiries for the remainder of that work-week." Thus, SDCCD asserts,
"Bareno did not exercise her right to request CFRA leave." SDCCD's recitation of the
"facts" when it makes these assertions, however, requires one to ignore certain
evidence in the record and also requires that one view other facts in the record in the
light most favorable to SDCCD, rather than Bareno. In considering SCDDC's motion
for summary judgment, however, the court is required to view the record in the light
most favorable to Bareno, not SDCCD. As we explain, a review of the record in the
light most favorable to Bareno reveals evidence that would support a finding in favor
of Bareno on the question whether she made a reasonable request for leave for a
CFRA-qualifying purpose.
It is undisputed that Bareno originally notified SDCCD of her need for CFRA-
qualifying leave on Monday, February 25, 2013. On that day, Bareno called Ornelas
and told her that she would not be at work because she needed to seek medical
attention. Bareno indicated that she was sick, depressed, stressed, and had to go to the
hospital. Later that evening, Bareno also e-mailed Ornelas to inform her that she
25
would be out on medical leave at least through March 1, 2013. On February 27,
Bareno provided SDCCD with a document from her health provider at Kaiser
Permanente in which the provider certified that Bareno was "placed off work" by the
provider for the period from February 25 to March 1, 2013. SDCCD apparently
concedes that Bareno notified it of her need for this medical leave, and there is no
evidence in the record that SDCCD ever challenged the propriety of the medical
certification that Bareno submitted for this period of time. Nor is there evidence that
SDCCD sought to employ the procedure set forth in CFRA to seek a second opinion
regarding Bareno's need for medical leave.
There is also evidence in the record that on March 1, Bareno e-mailed Ornelas a
second document from her health provider, indicating her need for leave from work
between March 1 and March 8, 2013. This document identified the Kaiser Permanente
provider, indicated the onset of Bareno's condition as "2/25/2013," and stated, "Off
Work. [¶] This patient is placed off work from 3/1/2013 through 3/8/2013."
(Underscore omitted.) This document, titled a "Work Status Report," is virtually
identical to the document that Bareno submitted to Ornelas on February 27, which the
College apparently accepted as sufficient certification of Bareno's need for medical
leave for the period from February 25 to March 1, 2013.
SDCCD makes much of the evidence in the record regarding Ornelas's
contention that she did not receive Bareno's e-mail, but this evidence does not entitle
SDCCD to judgment. CFRA and its implementing regulations clearly contain a
reasonableness component with respect to an employee's request for personal medical
26
leave. Thus, even if a fact-finder were to determine that Bareno's March 1, 2013 e-
mail was sent, but did not arrive in Ornelas's inbox, this would not settle the question
whether this fact should be used as a basis to conclude that Bareno's request was not
reasonable, given all of the circumstances of her multiple communications with
SDCCD, or whether SDCCD was justified in rejecting Bareno's later attempts to
rectify the situation by providing copies of the medical certification that she had
attempted to provide to Ornelas in that March 1, 2013 e-mail.
Further, at the time Bareno sent the March 1 e-mail to Ornelas, Bareno had
already placed SDCCD on notice that she was receiving medical treatment that
required her to take leave from work. Again, SDCCD knew that Bareno was out for a
medical reason the entire week of February 25 through March 1, 2013, and there is no
dispute that Bareno sent an e-mail to Buckley on Friday, March 1, 2013, which he
received, in which Bareno indicated that she was "out on a . . . medical leave" and
would "notify all concern[ed] of [her] return." Despite this indication that Bareno was
seeking additional leave, beyond March 1, 2013, for a CFRA-qualifying reason,
SDCCD did not contact Bareno about the apparent lack of recertification for that time
period. In fact, the evidence demonstrates that SDCCD intentionally did not engage
with Bareno.15 However, a reasonable fact-finder could conclude, based on SDCCD's
15 SDCCD asserts in briefing that Bareno did "no[t] respond to inquiries for the
remainder of that work-week [i.e., the week of March 4 through March 8, 2013],"
seemingly suggesting that Bareno failed to respond to inquiries made to her from
SDCCD. The record does not support such an inference. The record includes a single
reference to a potentially work-related telephone call made to Bareno during that
27
conduct, that it did not fulfill its obligations under CFRA, which places on employers
an obligation to inquire with an employee if its requires additional information from
that employee regarding the employee's request for leave. (See Cal. Code Regs., tit. 2,
§ 11091, subd. (a)(1) ["The employer should inquire further of the employee if
necessary to determine whether the employee is requesting CFRA leave and to obtain
necessary information concerning the leave"].)
In addition, the CFRA regulations require that employers permit an employee
up to 15 days to provide necessary certification when the employer has requested that
the employee provide certification to support his or her request for leave for a CFRA-
qualifying purpose. (See Cal. Code Regs., tit. 2, § 11091, subd. (b)(3) [where
employer requires certification, such certification may be required "within no less than
15 calendar days of the employer's request for such certification"].) The regulations
thus expressly contemplate that an employee may be out on CFRA protected leave
prior to providing medical certification regarding that leave. (Cal. Code Regs., tit. 2,
§ 11091, subd. (b)(3) ["This means that, in some cases, the leave may begin before the
week. Specifically, Bareno testified at her deposition that during that week she
received a call "from one of [her] coworkers, but [she] just could not discuss
anything," and so she "did not speak to anybody." According to Bareno, her coworker,
who was also an administrative assistant, left a message saying that she was "
'checking up on [Bareno].' " Again, there is nothing in this record to indicate that the
coworker who called to " 'check[ ] up on' " Bareno was actually inquiring with Bareno
about whether she was seeking leave for a CFRA-qualifying purpose or indicated to
Bareno that she would have to provide certification of her need for the leave. SDCCD
presented no evidence on summary judgment that during the relevant week, March 4
through March 8, 2013, anyone from SDCCD attempted to contact Bareno to inquire
about her medical status or need for additional leave, or that anyone informed her that
SDCCD had not received medical certification and that Bareno would have to submit
certification as soon as possible.
28
employer receives the certification"].) It is clear that SDCCD was aware that CFRA-
protected leave may be taken even when an employee has not yet provided his or her
certification, given that Peter Alvino notified others at SDCCD that although Bareno's
"leave [was] only approved through March 1st," Bareno could "request from her
physician an extension from March 4th and forward."
It is undisputed that Bareno was in contact with SDCCD after the week during
which SDCCD contends she was absent without request for leave, and she provided
multiple other medical certifications for this period of time. Yet, SDCCD never
informed Bareno, in response to her later communications, that it believed it had not
received certification for the week of March 4 through March 8, 2013. Instead,
SDCCD waited until the end of that week to send Bareno a letter via certified mail,
addressed to a post office box, informing her of its position that she had been absent
without justification and that it therefore considered her to have voluntarily resigned.
Based on all of the evidence, a reasonable fact-finder could conclude that
Bareno's attempts to contact SDCCD about her need for leave for a CFRA-qualifying
purpose were reasonable, and that she therefore sufficiently "requested" CFRA leave
for the entire period during which she was absent in early 2013. A reasonable fact-
finder could also conclude that SDCCD was on notice that Bareno was absent from
work between March 1 through March 8, 2013 due to a need for medical leave—i.e.,
for a CFRA-protected reason. Given this record, the fact that Ornelas states that she
did not receive one of many e-mails sent by Bareno regarding an on-going and
29
changing need for medical leave is simply insufficient to support summary judgment
in favor of SDCCD on Bareno's CFRA retaliation claim.16
16 Curiously, SDCCD argues that there is "no 'mailbox rule' for emails because
email is not as reliable as the U.S. Post Office," and urges that we should therefore
infer that Bareno's e-mail "went into the 'junk' file or that Bareno did not send the
email correctly." SDCCD cites no authority for its contention that Bareno may not
rely on evidence that she sent the March 1 e-mail to Ornelas as support for her claim
that she took CFRA-protected leave, and instead, that we should view the evidence in
the record as suggesting that Bareno should be held responsible for any failures in
communication. It would appear from the record that SDCCD's employees utilized e-
mail as a regular method of communication for many purposes. SDCCD's suggestion
that the fact that Bareno attempted contact by e-mail, as opposed to some other form of
communication, should be held against Bareno ignores the fact that the court is to
resolve any evidentiary doubts or ambiguities in plaintiff's favor in the context of a
defendant's motion for summary judgment.
Further, the evidence that SDCCD offered by way of Ornelas's declaration that
she did not receive Bareno's March 1 e-mail is not dispositive. In fact, at most, the
declaration establishes that disputed factual issues continue to exist on this record. For
example, one could reach any number of conclusions as to what happened with respect
to Bareno's March 1 e-mail to Ornelas. It is possible that Bareno's e-mail was
screened out and for that reason, did not arrive in Ornelas's inbox. Or, the e-mail may
have arrived in Ornelas's inbox, but Ornelas overlooked the message. It is also
possible that Ornelas did receive the e-mail but falsely claimed that she did not receive
it. Given that we do not make credibility determinations on summary judgment, but
instead view the evidence in the light most favorable to the nonmoving party, we must
acknowledge that the evidence, when viewed in the light most favorable to Bareno,
could support a finding that Ornelas did receive Bareno's March 1, 2014 e-mail in her
work account. Thus, even if a fact-finder were to conclude that Bareno's mere sending
of the March 1 e-mail, without confirming that it was received, did not, in itself,
amount to a reasonable request for leave under CFRA for the period between March 4
and March 8, a fact-finder could nevertheless conclude that Bareno sent the e-mail,
and that the e-mail was received by its intended recipient, such that any failure in
communication was due to an error on Bareno's employer's part, and should not be
attributed to Bareno.
30
c. The evidence is capable of supporting a finding that Bareno
submitted sufficient medical certification to support her need for
CFRA-qualifying leave
SDCCD contends that, even if one presumes that Bareno's March 1 e-mail to
Ornelas was sufficient to provide notice to SDCCD regardless of whether Ornelas
received it or not, Bareno still could not establish a prima facie case of retaliation
because the Kaiser Permanente "Work Status Report" that she provided as certification
of the need for CFRA-qualifying leave was "inadequate." Specifically, SDCCD
contends that the "Work Status Report" "did not contain the required information to
qualify as a reasonable request under the CFRA."17 We disagree with SDCCD's
contention.
Again, CFRA establishes that a certification issued by an employee's health
provider is sufficient if it includes "[t]he date on which the serious health condition
commenced"; "[t]he probable duration of the condition"; and "[a] statement that, due
to the serious health condition, the employee is unable to perform the function of his or
her position." (§ 12945.2, subd. (k)(1) & (2).)
The "Work Status Report" that Bareno submitted for the relevant time period
was issued by Dr. Evan George Tzakis on what appears to be a form regularly used by
17 The trial court apparently agreed with SDCCD's contention, determining that
SDCCD was entitled to summary judgment on Bareno's CFRA retaliation claim
because, the court concluded, a " 'reasonable request' " for CFRA medical leave
"requires [medical] certification" by a medical provider that meets the requirements set
forth in California Code of Regulations, title 2, section 11088, and the "evidence
submitted regarding Plaintiff's leave from March 4-8, 2013" was insufficient to permit
Bareno to "establish[ ] a prima facie case of retaliation."
31
Kaiser Permanente for the purposes of informing employers that employees need time
off from work or altered work arrangements due to medical necessity. The form
provides that the onset of Bareno's condition that is the subject of the certification was
"2/25/2013," thereby clearly indicating the date on which the serious health condition
commenced. Further, the form states, "Off Work. [¶] This patient is placed off work
from 3/1/2013 through 3/8/2013." (Underscore omitted.) In doing so, the form
provides both the probable duration of Bareno's condition, as well as an indication to
the employer that the doctor believes that a leave of absence from work is necessary.
In other words, the clear intention of this document is to inform the Bareno's employer
that she cannot fulfill the functions of her job and needs the identified time off in order
to address a serious medical condition. The information provided on the standardized
Kaiser Permanente form is sufficient to meet the standards set forth by CFRA. 18
Although SDCCD argued in the trial court and now argues on appeal that this
standardized form is insufficient to meet CFRA's standards, SDCCD apparently
accepted a virtually identical form from Bareno as sufficient to certify the leave she
took between February 28 and March 1, 2013. In other words, one could readily
conclude from this record that SDCCD believed that an identical or similar form was
18 In briefing, SDCCD also suggests that the "releases [Bareno] sent are
incomplete because they did not identify the condition [requiring medical leave]." It is
clear, however, that an employee need not share his or her medical condition with the
employer, and a certification need not include such information to be considered
sufficient: "For medical leave for the employee's own serious health condition, this
certification need not, but may, at the employee's option, identify the serious health
condition involved." (Cal. Code Regs., tit. 2, § 11087, subd. (a)(2), italics added.)
32
sufficient to support Bareno's claim for the CFRA-qualifying leave for the week prior
to the week in question. At no point did SDCCD ever indicate to Bareno that any of
the forms she had previously submitted did not meet the legal standard for a
"certification" under CFRA. Yet on appeal, SDCCD questions the legal adequacy of a
substantially similar form with respect to Bareno's absences from work between
Monday, March 4 and Friday, March 8, 2013.
It is clear, however, that the regulations impose on the employer an obligation
to request from the employee additional information if it believes that such
information is necessary (Cal. Code Regs., tit. 2, § 11091, subd. (a)(1)), and CFRA
provides for a specific process by which SDCCD could have determined whether
Bareno's leave was in fact needed for a CFRA-qualifying reason if it had reason to
doubt the validity of any of the medical certification forms that Bareno ultimately
submitted (§ 12945.2, subd. (k)(3)). If SDCCD did not believe that Bareno's medical
certification was sufficient, it could have requested additional information from her;
CFRA envisions exactly this kind of give-and-take between an employer and an
employee. SDCCD did not at any point indicate to Bareno that it viewed her
documentation to be insufficient or seek additional information from her.
Given this record, SDCCD is not entitled to summary judgment on the ground
that the medical documentation that Bareno provided to SDCCD was inadequate, as a
matter of law, to constitute the exercise of a right to CFRA-qualifying leave.
33
2. There remain material facts in dispute regarding the fourth element of
Bareno's prima facie case—i.e., whether the she suffered an adverse
employment action because she exercised her right to take CFRA-
qualifying leave.
SDCCD argues on appeal that Bareno's CFRA retaliation claim fails because
the undisputed evidence demonstrates that she cannot satisfy the fourth element of her
claim. According to SDCCD, Bareno cannot show that she suffered an adverse
employment action because she exercised her right to take CFRA leave. (See Faust,
supra, 150 Cal.App.4th at p. 885.) SDCCD contends that "[t]he true but-for cause of
the termination was that [SDCCD] thought she had abandoned her job." However, the
record does not establish this as a matter of law.
Although the evidence indicates that Bareno's superiors had been unhappy with
her for some time, the decision to consider her as having "voluntarily resigned," which
was effectively a termination, took place only after she sought medical leave, and
virtually immediately thereafter. There is a close temporal connection between
Bareno's absence for medical reasons and her effective termination by way of
SDCCD's interpretation of her absences as a "voluntary resignation," despite her
continued communications with SDCCD employees and her attempts to provide the
necessary medical certifications for all of the time for which she was absent. "When
an adverse employment action 'follows hard on the heels of protected activity, the
34
timing often is strongly suggestive of retaliation.' " (Collazo v. Bristol-Myers Squibb
Mfg., Inc. (1st Cir. 2010) 617 F.3d 39, 50.)19
3. SDCCD's proffer of a nonretaliatory reason for termination does not
entitle it to judgment as a matter of law
Finally, SDCCD argues that it "did not believe, nor have good reason to
believe, that Bareno's absence from March 4 through March 8, 2013 was protected,"
and contends that it reasonably believed that she was voluntarily resigning. SDCCD
asserts that Bareno "did not call to ask for leave," that SDCCD did "not receive[ ] the
email or doctor's note she claims she sent," that Bareno "had not responded to the
telephone message left for her," and that Bareno "had not responded to the certified
letter, which warned her that her leave was unauthorized so that she must contact her
supervisor within five days or her unauthorized absence would be treated as a
voluntary resignation." However, this recitation of the evidence is not complete, nor
does it view the evidence in the light most favorable to Bareno. A full review of the
record demonstrates that there remain material issues of fact in dispute that should be
decided by a trier of fact, not the court.
For example, although there is no evidence that Bareno placed a telephone call
to anyone at SDCCD between March 1 and March 8, 2013, there is evidence in the
record that Bareno e-mailed multiple individuals at SDCCD, including her direct
supervisor, Ornelas, and Vice President Jerry Buckley, on March 1, 2013, in addition
19 "California courts routinely rely on federal cases interpreting the FMLA when
reviewing the CFRA." (Rogers, supra, 198 Cal.App.4th at p. 487.)
35
to other dates. Although Ornelas states that she did not receive the March 1 e-mail
from Bareno regarding her need for additional medical leave, there is clear evidence
demonstrating that Bareno did, in fact, send the e-mail to Ornelas's work e-mail
account. A fact-finder could conclude that Bareno's sending this e-mail to Ornelas was
a reasonable effort to inform her employer of her continued need for CFRA-protected
leave, such that it was sufficient notice under CFRA to protect Bareno's absences
during the week of March 4 through March 8, regardless of whether Ornelas received
the e-mail. A fact-finder could also reach a number of other conclusions with respect
to Bareno's March 1 e-mail to Ornelas, none of which would entitle SDCCD to
summary judgment on Bareno's CFRA claim. For example, as discussed above, a
fact-finder could conclude that the e-mail was screened out before reaching Ornelas's
mailbox or that Ornelas did receive the e-mail, but failed to view it or purposely
ignored it. Regardless, what is clear from the facts presented on summary judgment is
that there can be no certainty on this record that a fact-finder would conclude that
Bareno's request for medical leave for the week of March 4 through March 8, 2013,
was inadequate as a matter of law, under CFRA's requirements, given the evidence
regarding Bareno's communications with SDCCD.
Even more problematic is SDCCD's suggestion that Bareno did not respond to a
"telephone message left for her." The clear implication of SDCCD's contention is that
SDCCD reached out to Bareno to clarify her need for medical leave and that she
ignored SDCCD's attempt to engage with her. As we have previously explained, the
evidence that SDCCD relies on for this point is Bareno's deposition testimony; a
36
reasonable inference from Bareno's deposition testimony regarding this telephone call
is that this was not an official call from SDCCD attempting to glean additional
information from Bareno, but rather, that it was a personal telephone call from a
coworker calling to check on Bareno. SDCCD's suggestion that Bareno's decision not
to return her coworker's call may be viewed as her ignoring a request for information
from SDCCD is contrary to the requirement that we view the evidence in the light
most favorable to Bareno.
Similarly, SDCCD's reliance on the fact that Bareno "had not responded to the
certified letter, which warned her that her leave was unauthorized so that she must
contact her supervisor within five days or her unauthorized absence would be treated
as a voluntary resignation" as an indication that it did "no[t] have good reason to
believe" that Bareno's absences between March 4 and March 8 were CFRA protected
is misguided. SDCCD did not place that letter to Bareno in the mail until March 8, so
she clearly could not have received it during the week that she was absent. Therefore,
her failure to contact her supervisor in response to that letter has no bearing on
whether SDCCD had reason to believe, at the time Bareno was absent between March
4 through March 8, that her absences were or were not CFRA protected.
What does have bearing on SDCCD's reason to believe that Bareno's absences
between March 4 and March 8 were CFRA protected are all of Bareno's
communications with her supervisors both prior to and after those dates. The record is
replete with evidence from which a reasonable fact-finder could conclude that SDCCD
knew, or reasonably should have known, that Bareno had no intention of voluntarily
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resigning her position (or being absent without excuse) when she was absent from
work between March 4 and March 8, 2013.
Indeed, both immediately before and immediately after the week of March 4
through March 8, 2013, Bareno contacted SDCCD with information regarding her
need for medical leave, and provided her original medical certification and additional
recertifications regarding her absences. Within a brief time after the relevant absences
(and immediately upon learning that SDCCD was claiming that it had not received her
original certification for the absences), Bareno informed SDCCD that she had been out
for a medical reason and supplied the necessary medical certification. Thus, even if
SDCCD had initially understood Bareno to be absent without justification, not long
after those absences, it was made aware that she had been out for medical reasons,
pursuant to a doctor's order. Nevertheless, even after obtaining this information,
SDCCD would not reconsider its original position that her absences were unexcused.
Further, it took this position despite the fact that Bareno had arguably provided
SDCCD with prior notice of her need for medical leave for the week in question.20
Although SDCCD took the position that Bareno had "voluntarily resigned" because of
her apparent lack of communication during that week, in order to reach this
conclusion, SDCCD had to overlook many other communications from Bareno, and
had to ignore its own obligations to inquire of Bareno when there was a question about
20 Again, Bareno had informed Buckley that she was "out on a . . . medical leave,"
as of March 1, and had indicated to him that her return date was uncertain. There is no
suggestion in the record that he did not receive this e-mail message.
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her need to continue her leave for CFRA-qualifying reasons. A reasonable fact-finder
could conclude, based on this evidence, that SDCCD decided to interpret Bareno's
absences as a "voluntary resignation," despite evidence to the contrary, in retaliation
for Bareno taking medical leave.
This record does not demonstrate that the evidence is wholly "incapable of
supporting a judgment for [Bareno as] the losing party." (Faust, supra, 150
Cal.App.4th at p. 877.) We therefore reverse the judgment and remand the matter to
the trial court for further proceedings.
IV.
DISPOSITION
The judgment is reversed. The matter is remanded for further proceedings.
Costs are awarded to the appellant.
AARON, J.
WE CONCUR:
O'ROURKE, Acting P. J.
IRION, J.
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