Filed 9/29/20 Lares v. Los Angeles County Metropolitan etc. CA2/4
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
ALFONSO LARES, B293850
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC634168)
v.
LOS ANGELES COUNTY
METROPOLITAN
TRANSPORTATION
AUTHORITY,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court for Los Angeles
County, Daniel S. Murphy, Judge. Affirmed.
Panitz Law Group, Eric A. Panitz; and Craig T. Byrnes for
Plaintiff and Appellant.
Lewis Brisbois Bisgaard & Smith, Lann G. McIntyre, Jeffrey S.
Ranen and Ashleigh R. Kasper for Defendant and Respondent.
This appeal involves the discipline provision in a collective
bargaining agreement (CBA) between defendant Los Angeles County
Metropolitan Transit Authority (MTA) and the union representing all
operations employees of MTA. Under a section of that provision (the
absenteeism rule), an employee is subject to progressive discipline, up
to and including termination, if he or she has a certain number of
absences. To avoid discipline, the employee may remove (or clear) an
absence from his or her count by not having any absences for 60
consecutive calendar days. Certain kinds of absences, however, are
expressly excluded from the absenteeism rule. One kind of excluded
absence is an absence covered under the federal Family and Medical
Leave Act (29 U.S.C. §§ 2601 et seq.) (FMLA) or the California Family
Rights Act (Gov. Code, § 12945.2) (CFRA).
Plaintiff Alfonso Lares, a bus operator for MTA, was fired after he
had eight non-excluded absences. There is no dispute that more than
60 calendar days had passed between absences on two occasions (i.e.,
two of the absences would have been cleared from his count), but Lares
had taken leaves under the CFRA during each of those periods, and
MTA did not count those days as part of the 60-day clearance period.
The question presented in this appeal is: Does MTA’s failure to count
the days an employee is on CFRA leave when calculating the 60-day
clearance period violate the CFRA? We conclude, as did the trial court,
it does not. Accordingly, we affirm the summary judgment in favor of
MTA on Lares’s claims for retaliation based upon his use of CFRA
leave, failure to prevent retaliation, and interference with CFRA leave.
2
BACKGROUND
A. The Absenteeism Rule
The CBA addresses three types of non-attendance in its discipline
provision (article 27): absences (section 5), missouts (section 6), and
absent without permission (AWOP) (section 7). Absences are defined as
“[a]n absence period of one (1) or more consecutive days or a portion of a
day greater than one (1) hour.”1 A missout occurs when an operator
fails to report at the scheduled time for his or her assignment, unless
the operator notifies division management at least 40 minutes prior to
his or her scheduled report time. An AWOP occurs when an operator
fails to report to work and does not notify division management at all,
or notifies management more than eight hours after the employee’s
shift was scheduled to begin.
Each type of non-attendance is subject to a different disciplinary
rule. The only rule at issue in the present case is the absenteeism rule,
set forth in section 5 of article 27 of the CBA (hereafter section 5).
Section 5 begins by stating: “Operator attendance at work must
be acceptable. Failure to maintain an acceptable attendance record will
subject the employee to suspension or discharge.” Before setting out the
specifics of the absenteeism rule, however, the section states: “Certain
absences indicated as follows will be excluded from the application of
this rule: 1) Jury duty; 2) military leave; 3) court appearances under
1 Thus, if an employee is absent on three consecutive days, it would
count as a single absence, but it would total 24 hours (i.e., three eight-hour
shifts).
3
subpoena; 4) medical appointments upon at least forty-eight (48) hours’
notice and subsequent proof of such visits; 5) bereavement leave; 6) day
of admission of an immediate family member to a hospital; 7) removal
from service by [MTA’s] doctor; 8) occupational injury or illness; 9)
earthquake, fire or flood if the employee is personally affected; 10)
absences authorized by the Transportation Manager, which he/she
deems as having sufficient merit and 11) absences covered under the
Family Care and Medical Leave Act.”
Section 5 then sets forth the rules that apply to absences. It
defines “Excessive Absenteeism” as six or more absences, or three
absences totaling at least 60 hours, and sets out a progressive discipline
schedule. It provides that a sixth absence (or three or more absences
totaling at least 60 hours) results in counseling of the employee; a
seventh absence (or four or more absences totaling at least 60 hours)
results in a suspension of up to three days; and an eighth absence (or
five or more absences totaling at least 60 hours) results in a disciplinary
hearing that may result in discharge of the employee.
Section 5 also sets forth the method for clearing absences from an
employee’s count, under the heading “Counting of Instances.” It states:
“Once an instance of absence has occurred, any period of sixty (60)
calendar days without an absence will remove one (1) instance of
absence from the Operator’s count. Absences from work due to
occupational illness or injury, reduction in force, suspensions, personal
leave of absence, off with permission, or other excused absences will be
deducted in calculating the sixty (60) day period.”
4
B. MTA’s Record-Keeping for Absences
MTA keeps track of each operator’s absences (as well as other
performance issues) using “Dept. HR” software. When an operator is
not going to come to work as scheduled, he or she must call a
transportation operations supervisor and tell the supervisor why he or
she will not be coming in, and when he or she expects to return to work.
That information is entered into the Dept. HR software.
Vazgen Vartanian, a principal software engineer for MTA, worked
on the development of Dept. HR, including the creation of the algorithm
used to implement the absenteeism rule. According to his deposition
testimony, codes were created for each type of absence, including both
absences that count for disciplinary purposes and absences that are
expressly excluded from the absenteeism rule. (In this opinion, we refer
to absences that are counted under the absenteeism rule as “charged”
absences, and absences that are expressly excluded from the
absenteeism rule as “non-charged” absences.) When a code for a non-
charged absence is entered into Dept. HR, that absence is neither
counted as an absence nor counted for purposes of the 60-day absence
clearance period. In other words, if an operator had a one-day non-
charged absence during a clearance period, the software would not clear
a charged absence until 61 days had passed.
C. Lares’s Employment With MTA
Lares was employed by MTA as a bus operator from 2004 until
March 2015. Over the course of his employment, Lares requested, and
5
was granted, 10 leaves of absence under the FMLA and CFRA.2 These
leaves of absence were not counted as absences for purposes of the
absenteeism rule. Lares also had numerous charged absences,
resulting in hundreds of hours of work lost. However, until the last
year of his employment, Lares was able to clear enough absences (by
going without a charged absence for 60-day clearance periods) to avoid
the third level of discipline, although he received first level discipline
(verbal counseling) many times, and second level discipline (suspension)
twice.
On September 27, 2014, Lares called out of work with the flu.
Because this was his sixth charged absence without a 60-day clearance,
he received verbal counseling. In October and November 2014, Lares
took 16 days of FMLA/CFRA leave after his wife gave birth to their
child. On December 2, 2014, Lares called in sick. Although more than
sixty total days had passed since his last absence, fewer than 60
counted days had. Therefore, he received a three-day suspension for
this absence. Lares arranged to serve his suspension from January 6,
2015 through January 8, 2015, when his wife was scheduled to have
surgery.
Lares’s wife developed complications from the surgery, and Lares
took FMLA/CFRA leave from January 13, 2015 to February 7, 2015 to
care for her. On February 13, 2015, Lares called the transportation
2 In accordance with the CFRA, MTA allows its employees up to 12
weeks (480 hours) of FMLA/CFRA leave in a “rolling” 12-month period. The
leave is unpaid, although employees may use their accrued sick leave or
vacation allowance for some or all of the leave.
6
operations supervisor before his shift. According to MTA’s records,
Lares told the supervisor he was sick with a cold and would not be
coming into work. As this was his eighth charged absence, MTA held a
formal disciplinary hearing to determine whether Lares would be
discharged. At the hearing, which was held on March 3, 2015, Lares
stated that he had called transportation operations supervisor Norma
Perera on the morning of his absence and asked her for an extension of
his FMLA/CFRA leave to care for his wife. He said that Perera told him
FMLA/CFRA leave was not available for him at that time. She said he
would have to call in sick, so he did.
After the hearing, Sharika Foster, MTA’s assistant transportation
operations manager (who supervised the division in which Lares
worked, and who had presided over the hearing), conducted an
investigation. She contacted Perera, who informed Foster that she had
not taken Lares’s call because she was on vacation on February 13,
2015. Foster then listened to a recording of the call Lares made on that
day. Transportation operations supervisor Cynthia Garrett took the
call. On the recording, Lares sounded sleepy and told Garrett that he
was calling in sick for one day due to a cold; there was no mention of
Lares wanting to take FMLA/CFRA leave.
Foster then spoke with Peter Mellon, the director of
transportation operations. After reviewing reports regarding Lares’s
attendance history, as well as his missout, discipline and counseling,
7
awards and commendations, and accident histories,3 Foster
recommended that the appropriate discipline for Lares’s eighth absence
was termination. Mellon agreed. The written decision terminating
Lares employment for excessive absenteeism was signed by Foster on
March 10, 2015.
C. The Present Lawsuit
Lares filed the instant lawsuit in September 2016. The operative
second amended complaint alleges four causes of action: (1) retaliation
for frequent use of CFRA leave; (2) retaliation in violation of
Government Code section 12940, subdivision (h) based upon Lares’s use
of CFRA leave; (3) failure to prevent retaliation in violation of
Government Code section 12940, subdivision (k); and (4) interference
with the use of CFRA leave.
MTA and Lares brought cross-motions for summary judgment/
summary adjudication. The primary issue raised in both motions was
whether MTA’s absence clearance policy—i.e., not to count days on
which an operator is on CFRA leave when determining whether the
operator has satisfied the 60-day clearance period—violated the CFRA
by interfering with the operator’s right to take CFRA leave or by
3 Those reports showed that Lares had been charged with five avoidable
accidents (including one in which his bus ran over a patron), had numerous
missouts (and was suspended three times under the progressive discipline
schedule applicable to missouts), and had been subject to four formal
disciplinary hearings (including one for using a cell phone while operating a
bus, for which he received a 30-day suspension).
8
retaliating against the operator for taking that leave.4 At the hearing
on the motions, counsel for both parties agreed that resolution of the
case turned on this legal issue, and that there were no factual disputes
(although at the end of the argument, counsel for Lares stated there
might be a factual dispute regarding whether MTA counts days absent
on bereavement leave when determining whether an absence has been
cleared).
The trial court concluded that, as a matter of law, MTA was not
required to count the time Lares was on CFRA leave towards the 60-day
absence clearance period, and therefore MTA did not violate the CFRA.
Finding that Lares did not raise triable issues of material fact that
MTA terminated him because he exercised his rights under the CFRA,
the court granted MTA’s motion for summary judgment, and denied
Lares’s motion for summary adjudication.
Lares filed a motion for reconsideration, which the trial court
treated as a motion for a new trial and denied. Judgment was entered
in favor of MTA, from which Lares timely filed a notice of appeal.
DISCUSSION
Lares contends on appeal that MTA’s absenteeism rule violates
the CFRA because (1) it counts an employee’s CFRA leave against the
employee by extending the absence clearance period during its use; and
4 Lares also raised an additional argument as to how MTA allegedly
violated the CFRA by counseling operators regarding their CFRA leaves, but
he does not make that argument in his appeal, so we need not discuss it.
9
(2) it treats CFRA leave worse than other types of leave. MTA argues
that the absenteeism rule does not violate the CFRA because absence
clearance is a benefit that is accrued by working (or being available to
work), and the CFRA does not require that employees continue to
accrue benefits while on CFRA leave. MTA also argues that it treats all
types of excused leave the same under the absenteeism rule, and that
Lares’s assertion to the contrary is supported only by deposition
testimony taken out of context that is insufficient to give rise to a
disputed issue of material fact. MTA has the better argument.
The “CFRA, the California corollary to the federal [FMLA], ‘is
intended to give employees an opportunity to take leave from work for
certain personal or family medical reasons without jeopardizing job
security.’” (Moore v. Regents of University of California (2016) 248
Cal.App.4th 216, 233.) It makes it unlawful for an employer to refuse to
grant a request by an employee who meets certain criteria “to take up
to a total of 12 workweeks in any 12-month period for family care and
medical leave,” and to guarantee “employment in the same or a
comparable position upon the termination of the leave.” (Gov. Code,
§ 12945.2, subd. (a).) It also makes it unlawful for an employer “to
refuse to hire, or to discharge, fine, suspend, expel, or discriminate
against, any individual” for exercise their rights under the act, or “to
interfere with, restrain, or deny the exercise of, or the attempt to
exercise, any right” under the act. (Gov. Code, § 12945.2, subds. (l)(1),
(t).)
The California Fair Employment and Housing Commission has
promulgated regulations to implement and interpret the CFRA, which
10
regulations also incorporate by reference the federal regulations
interpreting the FMLA to the extent the federal regulations are within
the scope of the CFRA and not inconsistent with the California
regulations. (Cal. Code Regs., tit. 2, § 11096.) Violation of the
California regulations5 (including the federal regulations incorporated
by reference) “constitutes interfering with, restraining, or denying the
exercise of rights provided by CFRA.” (Cal. Code Regs., tit. 2, § 11094,
subd. (a).)
Lares contends that MTA’s absenteeism rule violates section
11094, subdivision (b) of the California regulations in two ways. That
regulation states, in relevant part: “[I]f an employee on leave without
pay would otherwise be entitled to full benefits (other than health
benefits), the same benefits would be required to be provided to an
employee on unpaid CFRA . . . leave. By the same token, employers
cannot use the taking of CFRA . . . leave as a negative factor in
employment actions, such as hiring, promotions or disciplinary actions;
nor can CFRA . . . leave be counted against an employee under an
employer’s attendance policies.” (Cal. Code Regs., tit. 2, § 11094, subd.
(b).) Lares argues that MTA treats other kinds of leave differently than
it treats CFRA leave when counting days for absence clearance, thus
violating the first part of the regulation. And he argues that MTA
violates the second part of the regulation by extending the absence
5 Further reference to “California regulations” will be to title 2, article 11
of the California Code of Regulations.
11
clearance period by the number of days the employee is on CFRA leave.
We begin with the latter argument.
A. The CFRA Does Not Require the Accrual of Absence Clearance
Days While an Employee Is On CFRA Leave
Lares argues that by failing to include days an employee spends
on CFRA leave when calculating the absence clearance period, MTA
causes the CFRA leave to “be counted against” the employee. (Cal.
Code Regs., tit. 2, § 11094, subd. (b).) In making this argument, he
relies upon Schmauch v. Honda of America Manufacturing, Inc. (S.D.
Ohio 2003) 295 F.Supp.2d 823 (Schmauch), a federal district court case
involving the FMLA and a no-fault absence policy that is similar in
some respects to MTA’s absenteeism rule.6
Under the policy at issue in Schmauch, if an employee’s
attendance dropped below 98 percent, he or she received progressive
counseling. Time spent on FMLA leave and military leave did not count
as an attendance occurrence, and was not part of the calculation of the
attendance percentage. If the employee’s attendance remained below
6 No-fault absence (or attendance) policies are relatively common. They
are called “no-fault” policies because they do not require the employee to
present evidence of justification for an absence, such as a note from a doctor.
They typically include limitations on the number of absences allowed and
some mechanism for clearing some or all of the absences. (See Bailey v.
Pregis Innovative Packaging, Inc. (7th Cir. 2010) 600 F.3d 748, 751.) Because
the CFRA’s provisions and regulations are similar to those of the FMLA,
California courts often look to federal cases interpreting the FMLA when
reviewing the CFRA, particularly where, as here, there are no California
cases that address the issue before the court. (Rogers v. County of Los
Angeles (2011) 198 Cal.App.4th 480, 487.)
12
98 percent after all the counseling, the employee was placed on an
attendance improvement program (AIP). The AIP had three two-month
segments, during which the employee was permitted certain numbers of
“attendance occurrences” (two occurrences in the first segment, one
occurrence in the second segment, and no occurrences in the third
segment); an employee who failed to comply with the AIP was subject to
immediate termination. If the employee took certain kinds of leave
during an AIP segment, including FMLA leave (but not including leaves
for bereavement, court appearance, or worker’s compensation), that
segment was extended by the number of days spent on those leaves.
(Schmauch, supra, 295 F.Supp.2d at p. 826.)
The plaintiff in Schmauch was placed on AIP due to his
attendance record. (Schmauch, supra, 295 F.Supp.2d at p. 826.)
During the time he was on AIP, he took approved military and FMLA
leaves, which prolonged the original six-month period of the AIP. (Id. at
pp. 826-827.) A few days before the final segment of the prolonged AIP
was scheduled to end, he had an attendance occurrence and his
employment was terminated. (Id. at p. 827.) He filed a lawsuit against
his employer, asserting, among other claims, that the employer violated
the FMLA by prolonging his AIP due to the time he spent on FMLA
leaves during the initial period of his AIP. (Ibid.)
Relying upon Chaffin v. John H. Carter Co., Inc. (5th Cir. 1999)
179 F.3d 316, which held that employers have an obligation under the
FMLA not to penalize employees for exercising their rights under the
FMLA, the district court, with little analysis, concluded that the
13
extension of an AIP “could be deemed penal in nature” because “an
employee is permitted only a limited number of absences [during the
AIP] and any unexcused absence is cause for termination.” (Schmauch,
supra, 295 F.Supp.2d at p. 829.) Therefore, the court found there was a
triable issue of fact as to whether the employer’s policy of extending the
AIP discourages employees from taking FMLA leave. (Id. at pp. 831-
832.)
We are not persuaded by the district court’s analysis. An
employee whose employment is terminated under a no-fault absence
policy such as the one in Schmauch (or in the present case) is not
penalized for taking FMLA or CFRA leave. Rather, the employee is
penalized for having an unexcused absence within a period of a specific
number of days during which he or she is scheduled (or available) to
attend work. The employee’s taking of FMLA or CFRA leave does not
increase the number of scheduled work days (or available-to-work days)
that the employee must remain absence-free. Thus, there is no
“penalty” for taking FMLA or CFRA leave.
We believe the more accurate way to view the operation of a no-
fault absence policy like MTA’s absenteeism rule is the view expressed
by the Seventh Circuit in Bailey v. Pregis Innovative Packaging, Inc.,
supra, 600 F.3d 748 (Bailey). In Bailey, the no-fault attendance policy
provided that an employee could be fired if he or she received 8 “points”
during the preceding 12-months; each point is removed from the
employee’s count 12-months after it is imposed. If the employee takes
14
FMLA leave, the time spent on that leave is not counted for purposes of
calculating the 12-month removal period. (Id. at pp. 749-750.)
The Bailey court reasoned that under of the policy for removing
absenteeism points, the employee accrues the right to have an
absenteeism point removed after he or she completes 12 months of work
from the time the point was imposed. (Bailey, supra, 600 F.3d at p. 750,
752.) The court concluded that this right is an employment benefit.
(Ibid.) The court also found that not counting the time an employee
spent on FMLA leave when computing the 12-month period for
absenteeism point removal did not violate the FMLA because the
benefit (absenteeism forgiveness) is accrued only by working, i.e., it is a
reward for working, and the FMLA does not require that an employee
be allowed to accrue such benefits while on FMLA leave. (Id. at p. 752.)
Lares argues the Bailey court’s analysis does not apply to this case
because that court relied upon language in the FMLA that taking
FMLA leave “shall not result in the loss of any employment benefit
accrued prior to the date on which the leave commenced” (29 U.S.C.
§ 2614(a)(2)), and that an employee is not entitled to “the accrual of any
. . . employment benefits during any period of leave” (29 U.S.C.
§ 2614(a)(3)(A)). He contends there is no such language in the CFRA or
its implementing regulations and that, in fact, it is contrary to section
11092, subdivision (f) of the California regulations. While he is correct
that the exact language cited by the court in Bailey does not appear in
the CFRA or its regulations, the concepts the language expresses are
consistent with the concepts expressed in the CFRA and its regulations.
15
For example, section 11089 of the California regulations provide
that an employee who takes a leave under the CFRA is entitled to
return to the same position or a comparable position with equivalent
benefits, which the regulation defines to include “benefits resumed in
the same manner and at the same levels as provided when the leave
began.” (Cal. Code Regs., tit. 2, § 11089, subd. (b)(1), italics added.) In
other words, the employee cannot lose any benefits he or she had
accrued before taking CFRA leave. Moreover, by stating that the
benefits resume at the same levels they were when the employee’s leave
began, the regulation implicitly acknowledges the employee is not
entitled to accrue benefits while on CFRA leave.7
Contrary to Lares’s assertion, section 11092, subdivision (f) does
not affect the application of the Bailey court’s analysis to this case.
That regulation provides, in relevant part: “[I]f the employer’s other
unpaid personal or disability leaves do not allow for the continuation of
benefits during these leaves, an employee taking a CFRA leave . . . shall
be entitled to continue to participate in the employer’s health plans,
pension and retirement plans, supplemental unemployment benefit
plans or any other health and welfare employee benefit plan, in
accordance with the terms of those plans, during the period of the
CFRA leave.” (Cal. Code Regs., tit. 2, § 11092, subd. (f).) He contends
7 An exception to this is seniority. While the FMLA provides that an
employee on FMLA leave is not entitled to accrue seniority while on leave (29
U.S.C. § 2614(a)(3)(A)), the California regulations provide that an employee
is entitled to accrual of seniority while on CFRA leave (Cal. Code Regs., tit. 2,
§ 11092, subd. (e)).
16
that, because the regulation “allows for the continuation of such
benefits when other paid [sic] leaves do not, absence clearing should
continue during CFRA leave.” He is mistaken. An employee “benefit” is
not the same thing as a “health and welfare employee benefit plan.”
For example, paid vacation is an employee benefit that cannot
reasonably be considered to be a health and welfare employee benefit
plan; instead, it is a reward for working and is accrued based upon the
time spent working (or available to work). Similarly, the “benefit” of
absence clearance is a reward for working without absences and is not a
health and welfare employee benefit plan.
In short, we hold—with a caveat—that where, as here, an
employer’s no-fault absenteeism policy provides that an employee may
clear absences that otherwise would count for purposes of disciplinary
action by working (or being available to work) during a certain
clearance period, the employer does not violate the CFRA by extending
the absence clearance period by the number of days the employee was
on CFRA leave during that period. The caveat, and it is an important
one, arises from section 11094 of the California regulations.
As Lares notes, section 11094 provides that “if an employee on
leave without pay would otherwise be entitled to full benefits (other
than health benefits), the same benefits would be required to be
provided to an employee on unpaid CFRA . . . leave.” (Cal. Code Regs.,
tit. 2, § 11094, subd. (b).) Since, as we conclude, the clearing of an
absence is an employee benefit, this provision applies to MTA’s
absenteeism rule. Therefore, the caveat to our holding is that there is
no violation of the CFRA only if the employer extends the absence
17
clearance period by the number of days the employee was on any unpaid
leave.
B. Lares Failed to Raise a Triable Issue of Fact That MTA Treats
Other Kinds of Unpaid Leave Differently Than CFRA Leave
In its summary judgment motion, MTA presented evidence that it
treats all kinds of unpaid leave the same when determining whether an
employee is entitled to have an absence cleared from his or her count.
Lares contends he presented evidence that MTA counts three types of
unpaid leave—jury duty, bereavement leave, and military duty leave—
toward absence clearance, but does not count CFRA leave, thereby
raising a triable issue of material fact.8 We disagree.
Under summary judgment law, “‘[t]here is a triable issue of
material fact if, and only if, the evidence would allow a reasonable trier
of fact to find the underlying fact in favor of the party opposing the
motion in accordance with the applicable standard of proof.’ [Citation.]
In making this determination, ‘the court may not weigh the plaintiff’s
evidence or inferences against the defendants’ as though it were sitting
as the trier of fact, [but] it must nevertheless determine what any
evidence or inference could show or imply to a reasonable trier of fact.’”
(Colarossi v. Coty US Inc. (2002) 97 Cal.App.4th 1142, 1149, italics
omitted.)
8 Lares also includes vacation leave in this group, but vacation is paid
leave. Thus, section 11094, subdivision (b) of the California Regulations does
not require that vacation leave be treated equally to CFRA leave.
18
In arguing that MTA does not treat all unpaid leave equally,
Lares cites to deposition testimony by Sharika Foster (the assistant
transportation operations manager), Bob Holland (MTA executive
director of transportation), and Lares’s union representative, Robert
Gonzalez. But that testimony, when read in context, would not allow a
reasonable trier of fact to find that MTA treats bereavement, jury duty,
and military leaves differently than CFRA leave when calculating
absence clearance periods.
First, the testimony by Foster that Lares cites to is a single
passage from the first session of her deposition9 in which Foster is being
questioned about the provisions governing missouts, which have
different clearance rules than the absenteeism rule. But even if
Foster’s statement—that jury duty and military time is considered
active time for purposes of clearing missouts—could be deemed
applicable to clearing absences (although Lares offered no explanation
why it would be applicable), Foster corrected her statement in the
second session of her deposition, and said that military time and jury
duty do not count toward clearing missouts.
Second, although Holland (who was one of the signatories of the
CBA) did testify in the deposition excerpt Lares cites that bereavement
leave counted toward absence clearance,10 Holland gave that testimony
9 Although Lares cites to two locations in the record on appeal in support
of his assertion, both citations are to the same pages of Foster’s deposition.
10 Lares also cites testimony by Holland that vacation counted toward
absence clearance, but those citations are not relevant to this issue since
vacation is paid leave.
19
without having the CBA before him. Later in the same deposition, after
he was provided with a copy of the relevant section of the CBA, he
testified that all 11 types of leave that are listed in section 5 as
expressly excluded from the absenteeism rule do not count toward
absence clearance. He later specifically testified that neither
bereavement leave nor jury duty counted toward absence clearance.
Contrary to Lares’s assertion, when a deponent testifies from memory
about a written policy, but later in the deposition corrects that
testimony upon being shown the written policy, the deponent’s earlier
testimony is insufficient to raise a triable issue of fact because it would
not be reasonable for the trier of fact to rely upon the uncorrected
testimony under those circumstances.
Finally, although Gonzalez testified that jury duty counted toward
absence clearance, Lares provided no evidence to show that Gonzalez, a
union representative, had any first-hand knowledge of how MTA
counted days for absence clearance. In contrast, MTA presented
testimony by a principal software engineer (Vartanian) who was
involved in the development of the software program MTA used to,
among other things, track absences and absence clearances. And
Vartanian testified that under the software program, any absence that
is not chargeable under the absenteeism rule (such as jury duty,
military leave, bereavement leave, or CFRA leave) does not count
toward absence clearance.
Thus viewed in context, the evidence Lares relies upon would not
allow a reasonable trier of fact to find that MTA treats jury duty,
military, or bereavement leaves differently than it treats CFRA leave
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for the purpose of absence clearance under the absenteeism rule.
Therefore, in light of the parties’ concession that all of Lares’s claims
turn on whether MTA violated the CFRA by not counting CFRA leave
toward absence clearance, we find the trial court properly granted
summary judgment in favor of MTA.
DISPOSITION
The judgment is affirmed. MTA shall recover its costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, J.
We concur:
MANELLA, P. J.
CURREY, J.
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