Filed 8/31/21 Vincent v. Dept. of the Cal. Highway Patrol CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
STANLEY VINCENT, 2d Civil No. B302026
(Super. Ct. No. 16CV05599)
Plaintiff and Respondent, (Santa Barbara County)
v.
DEPARTMENT OF THE
CALIFORNIA HIGHWAY
PATROL,
Defendant and Appellant.
Stanley Vincent filed this lawsuit against the State of
California (State), claiming that the Department of the California
Highway Patrol (CHP) violated the California Family Rights Act
(CFRA) and Fair Employment and Housing Act (FEHA) when it
terminated his employment. After Vincent prevailed at trial, the
State filed motions for judgment notwithstanding the verdict
(JNOV) and a new trial. On appeal from the trial court’s orders
denying the motions,1 the State contends: (1) Vincent was not
entitled to take CFRA leave, and (2) Vincent’s FEHA claims fail
because he did not prove retaliatory intent. We affirm.
FACTUAL AND PROCEDURAL HISTORY2
Vincent and his family
Vincent’s immediate family includes his mother,
Marie, and sister, Karine.3 Vincent moved to the United States
from Haiti in 1995. Eleven years later he commenced work as a
1 The State also purports to appeal from the trial court’s
order denying its motion for summary judgment, but such an
order is not reviewable where, as here, there was a “full trial
covering the same issues.” (California Housing Finance Agency v.
Hanover/California Management & Accounting Center, Inc.
(2007) 148 Cal.App.4th 682, 688.)
2 An appellant’s brief must include a “summary of the
significant facts.” (Cal. Rules of Court, rule 8.204(a)(2)(C).) The
State ignores this requirement, omitting numerous facts relevant
to this appeal and disregarding “‘the precept that all evidence
must be viewed most favorably to [Vincent] and in support of the
verdict.’” (Hjelm v. Prometheus Real Estate Group, Inc. (2016) 3
Cal.App.5th 1155, 1166, alterations omitted.) Instead, “‘[w]hat
[the State] attempts here is merely to reargue the “facts” as it
would have them, an argumentative presentation that not only
violates the rules noted above, but also disregards the admonition
that it is not to “merely reassert its position at trial.”
[Citations.]’” (Ibid., alterations omitted.) We cannot abide such a
detour from appellate practice. Our duty is to apply the law as it
stands to the facts adduced at trial and render a decision that
comports with our limited powers on review. Doing so here, we
conclude that the State’s appeal is “‘“doomed to fail.”’” (Ibid.)
3 We use the first names of Vincent’s family members for
clarity.
2
CHP peace officer. Over the succeeding eight years, performance
reviews showed that Vincent performed “proficient[ly]” or higher
in all categories.
Vincent cares for 80-year-old Marie, who lives with
him. He also stands in loco parentis to Karine, who suffers from
paranoid schizophrenia. Karine remains in Haiti, where Vincent
created a private health care facility for her in the family home.
Vincent travels there frequently to help with her care. He
maintains regular contact with Karine’s treating physician, who
considers him his sister’s caretaker.
Vincent pays the property taxes on the family home.
He also pays for Karine’s food, daily necessities, medical care,
and health insurance. He employs and supervises an in-home
caretaker for Karine. On average, he has sent Karine at least
$4,600 per year since 2009, an amount equal to about $65,000 in
the United States. He sent his largest financial contribution—
more than $10,000—in 2014.
Karine goes missing
On November 9, 2014, Vincent received word that
Karine had left the family home and was wandering the streets of
Port-au-Prince. He was also told that local law enforcement
required him to make a report in person as Karine’s next of kin.
Later that day, Vincent told Sergeant Eric Martinez that he
might need an emergency leave of absence. Vincent had
previously taken emergency leave from his CHP duties to care for
Karine, once in 2007 when she experienced a medical crisis, and
again in 2010 after an earthquake. CHP did not require him to
fill out any forms prior to traveling for these emergencies, nor did
it require him to provide any medical certifications for them.
3
Vincent also told Sergeant Martinez that he had been
locked out of the CHP computer system and was unable to
complete his reports or book drug evidence. He said he would
secure the evidence in storage lockers until he regained system
access. Sergeant Martinez documented that Vincent would be
“holding on to the [locker] key until he return[ed] to work.”
The next day, Vincent told Sergeant Brian DeMattia
that his sister was missing in Haiti, and requested a two-week
leave of absence. Vincent also requested Sergeant DeMattia’s
assistance in rescheduling a November 13 court appearance.
Sergeant DeMattia notified Captain Mark D’Arelli that Vincent
needed to “go out of the country to attend family matters.”
Vincent left the next day, November 11.
On November 12, Sergeant Matthew Dawson called
Vincent and left a voicemail message asking him to come into the
office and fill out paperwork to determine whether his request
met CHP’s family leave criteria. Sergeant Dawson also sent
Vincent a text message. Vincent responded to neither message.
When Vincent did not show for work on November
14, CHP labeled him absent without leave (AWOL). Sergeant
Dawson told Sergeant Russell Regan that Vincent had requested
leave, but that the request had not been approved. Later that
day, Sergeant Regan left a voicemail for Vincent, sent him a text
message, and went to his residence. He received no response.
Sergeant Regan tried to reach Vincent again the next day, but
could not.
Captain D’Arelli fired Vincent six days later—a
decision that was quickly rescinded. He then directed CHP to
initiate an investigation into Vincent’s “absence without
4
authorized leave.” Vincent, who was in Haiti caring for Karine at
the time, was unaware of these proceedings.
On November 25, Vincent contacted Lieutenant Mike
Bueno from Haiti and requested an additional eight days of
emergency leave. Lieutenant Bueno asked no clarifying
questions. He did not provide Vincent with any family leave
forms, but instead ordered him to return to work “immediately.”
CHP fires Vincent
When Vincent returned to work on December 4, he
submitted documentation about his leave, including: (1) medical
records confirming Karine’s condition and ongoing medical
treatment, (2) police reports showing that Vincent was his sister’s
next of kin and had initiated a police search to help find her, and
(3) financial records demonstrating Vincent’s long-standing
financial support for Karine. Vincent also explained that he had
helped to stabilize Karine’s condition by improving the family
home, taking her to medical appointments, obtaining her
medications, and providing for her daily needs. CHP refused to
accept or evaluate the documents.4 It stripped Vincent of his
peace officer duties and assigned him to desk duty.
4 Without citing any evidence in the record, in its opening
brief the State claims that Vincent “never provided any
information to CHP regarding the nature of his relationship with
his sister during his employment.” Then, in its reply brief, the
State repeats the claim and insists that Vincent withheld
information about that relationship from CHP. Such claims
ignore that CHP officials refused to accept or evaluate the
documents Vincent attempted to give them after he returned
from Haiti, as well as the extensive evidence cited in Vincent’s
respondent’s brief detailing his relationship to his sister.
5
Captain D’Arelli thought Vincent was “arrogant” for
taking emergency leave, and ordered an investigation into
“possible adverse action issues” for being AWOL. Sergeant
DeMattia and Sergeant Dawson led the investigation. Captain
D’Arelli said that it would “be for termination.”
On December 9, Vincent filled out an evidence form
for methamphetamine he had seized. He dated the form
December 8. When Sergeant Dawson reviewed the form, he
asked Vincent whether it was correctly dated. Vincent replied
that he thought that it was. Sergeant Dawson later reviewed
several of Vincent’s evidence bookings and concluded that he had
misdated other forms as well. He added a charge of dishonesty
and mishandling of evidence.
CHP’s investigation substantiated all charges against
Vincent, concluding that he had been AWOL, was dishonest and
demonstrated a neglect of duty with regard to the submission of
reports and processing of evidence, and failed to attend court.
The report did not state that Vincent had requested emergency
family leave to care for Karine, nor did it include any details
about her condition or relationship to Vincent. Investigators
presented the report to Commissioner Joseph Farrow and
recommended that he terminate Vincent’s employment.
Commissioner Farrow did so because, “the way it was portrayed,”
Vincent simply “went AWOL and walked off the job.”
Trial court proceedings
Vincent sued the State for wrongful termination,
alleging violations of the CFRA and FEHA. The State moved for
summary judgment, arguing that “[Vincent’s] leave did not
qualify under the CFRA” because it was “undisputed” that he
“did not stand in loco parentis to his sister” because he presented
6
“no evidence that he provided [Karine] day-to-day care or
substantial financial support.” The trial court denied the State’s
motion, concluding that there were “triable issues of material fact
as to whether [Vincent] stood in the place of a parent.” It also
rejected the State’s arguments that Vincent had provided
inadequate notice of his leave, that Karine going missing was not
a “qualifying event” under the CFRA, and that CHP had
legitimate business reasons to terminate Vincent.
The case proceeded to trial. As to the State’s claim
that CHP fired Vincent because he was dishonest and
mishandled evidence, Evidence Officer Maria Barriga testified
that Sergeant Dawson’s report was “inaccurate.”
As to the State’s claim that CHP fired Vincent
because he went AWOL, Dr. Paul Berg testified that “Vincent’s
[family care] responsibilities were significant and complicated
and overwhelming,” that the “burden” of caring for his sister was
“almost exclusively” his, and that Vincent’s “dedication was to
save the life of his sister.” Dr. Berg also testified that Vincent
played a significant parental role for Karine. He confirmed that
Vincent made several emergency trips to Haiti during his
employment with CHP because of the severity of Karine’s
condition.
Based on its knowledge that Vincent had requested
emergency leave to care for his sister, Commissioner Farrow
testified that CHP had “a duty” to verify and designate his leave
as CFRA leave or to inquire further about the circumstances
surrounding his request. Commissioner Farrow also noted that
CHP could not avoid its obligations by labeling Vincent AWOL
and launching a misconduct investigation.
7
Lieutenant Bueno agreed. He admitted that Vincent
qualified for CFRA leave if he was acting as a parent for a
mentally ill sister, but he did not complete the required leave
evaluation. He also did not direct anyone else to do so.
Sergeant Dawson similarly did not evaluate Vincent’s
leave request, despite knowing that he cared for Karine.
Captain D’Arelli admitted that he knew that an
employee could be in loco parentis to a mentally ill sibling, and
could provide certification of emergency leave after it was taken.
He nevertheless directed his officers not to ask Vincent any
questions about his leave. As a result, no one at CHP evaluated
Vincent’s leave or provided him with required paperwork.
Jury verdict and posttrial proceedings
The jury found in favor of Vincent on all claims.
Specifically, the jury found that: (1) Vincent was eligible for
family care leave, (2) Vincent requested and took leave for a
qualifying person who had a serious health condition, (3) Vincent
provided reasonable notice to CHP of his need for leave, (4) CHP
refused to grant Vincent’s request for leave and/or refused to
return Vincent to the same or a comparable job when his leave
ended, (5) CHP subjected Vincent to an adverse employment
action and discharged him, (6) Vincent’s request for and/or taking
of leave was a substantial motivating reason for the CHP’s
decision to discharge him, (7) CHP failed to take all reasonable
steps to prevent retaliation against Vincent, and (8) CHP’s
conduct was a substantial factor in causing harm to Vincent. It
awarded him $3.9 million in damages.
The State moved for JNOV and a new trial. In both
motions the State argued that substantial evidence did not
support the jury’s finding that Vincent was in loco parentis to
8
Karine. The State also argued that CHP legitimately terminated
Vincent and that the jury’s damages award was swayed by
“passion or prejudice.” The trial court denied both motions.
DISCUSSION
CFRA claims
The State contends Vincent was ineligible for CFRA
leave because he: (1) did not stand in loco parentis to his sister,
(2) did not notify CHP of his in loco parentis claim, and (3) did
not provide CHP with the requisite medical certifications. We
disagree with all three contentions.5
1. In loco parentis
Subject to certain restrictions not relevant here, the
CFRA prohibits an employer from refusing to grant an employee
request for family care and medical leave. (Gov. Code,6
§ 12945.2, subd. (a).) An employer is also prohibited from firing
an employee who exercises their right to take such leave. (Id.,
subd. (l)(1).) An employee may take family care and medical
leave to attend to a serious health condition of an adult
dependent, which includes a person to whom they stand in loco
parentis. (Id., subd. (c)(1)(B) & (c)(3)(A).) An employee stands in
loco parentis if they act “in the place of a parent; instead of a
parent; [or are otherwise] charged with a parent’s rights, duties,
5 We deny Vincent’s request for judicial notice of the
CFRA’s legislative and regulatory history, filed March 2, 2021,
because it is unnecessary to our decision. (Adams v. Bank of
America, N.A. (2020) 51 Cal.App.5th 666, 674, fn. 4.)
6 Statutory references are to the Government Code. All
references to statutory and regulatory provisions are to those in
effect during the events underlying Vincent’s CFRA and FEHA
claims.
9
and responsibilities.” (Cal. Code Regs., tit. 2, § 11087, subd.
(c)(1).)
We review the jury’s determination that Vincent
stood in loco parentis to Karine for substantial evidence. (Leckie
v. Locke (1949) 90 Cal.App.2d 482, 484-485.) Factors tending to
show the existence of such a relationship include that Vincent
“possesse[d] [unique] information about” Karine and “assumed
the role of a parent on a day-to-day basis for a substantial period
of time” (In re Ashley P. (1998) 62 Cal.App.4th 23, 27), that he
supported her financially and performed household duties for her
benefit (Loomis v. State (1964) 228 Cal.App.2d 820, 823-824), and
that there was a “mutuality and continuity and permanence of
the relationship” between the two siblings (Estate of Teddy (1963)
214 Cal.App.2d 113, 118). “Above all, the decision depends on the
particular individual seeking such status and the unique
circumstances of the case.” (In re Ashley P., at p. 27.)
The unique circumstances of this case
overwhelmingly support the jury’s determination that Vincent
stood in loco parentis to his sister. The evidence adduced at trial
showed that Vincent provided for Karine on a day-to-day basis for
nearly two decades. He paid for her housing and other essentials,
wiring her money at least once each month. He paid for her
medical care, employing and supervising an in-home caretaker.
He regularly communicated with her doctors to understand and
provide for her specific psychological and medical needs. He took
frequent trips to the family home in Haiti to help care for her.
While there in the fall of 2014, Vincent worked with
police to locate Karine. And once she had been found, he escorted
her to medical visits, filled her prescriptions, and otherwise
provided for her daily needs. Such evidence shows a continuous
10
and permanent relationship between Vincent and Karine.
Substantial evidence therefore supports the jury’s determination
that Vincent stood in loco parentis to his sister. (See, e.g., In re
Ashley P., supra, 62 Cal.App.4th at pp. 27-28.) The State’s
citation to out-of-jurisdiction cases showing different iterations of
people standing in loco parentis and other inapposite cases does
not negate this determination.
2. Notice
If an employee thinks that they may need to take
CFRA leave, they must give their employer “at least verbal notice
sufficient to make [it] aware” of the need for such leave, as well
as “the anticipated timing and duration of the leave.” (Cal. Code
Regs., tit. 2, § 11091, subd. (a)(1).) But “[t]he employee need not
expressly assert rights under CFRA . . . or even mention [the]
CFRA . . . to meet the notice requirement.” (Ibid.) Rather, it is
the employer’s duty to “inquire further of the employee if
necessary to determine whether the employee is requesting
CFRA leave and to obtain necessary information concerning the
leave.” (Ibid.) Then, “based on information provided by the
employee,” the employer must designate whether the leave
qualifies under the CFRA. (Id., subd. (a)(1)(A).) If the employer
cannot make that designation prior to the employee’s leave, it
nevertheless cannot refuse to designate it as CFRA-qualifying “so
long as the employee provide[s] notice . . . as soon as practicable.”
(Id., subd. (a)(4).) Whether Vincent provided sufficient
information to put CHP on notice that he was taking CFRA leave
is a question of fact (Avila v. Continental Airlines, Inc. (2008) 165
Cal.App.4th 1237, 1255 (Avila)) we review for substantial
evidence (Kerr Land & Timber Co. v. Emmerson (1969) 268
Cal.App.2d 628, 637).
11
Substantial evidence supports the jury’s
determination that Vincent provided CHP with sufficient notice
that he was taking CFRA-qualifying leave. The day he received
word that Karine was wandering the streets of Port-au-Prince,
Vincent told Sergeant Martinez that he may need to take
emergency leave to help locate and care for his mentally ill sister.
The next day, he told Sergeant DeMattia about the situation and
requested a leave of absence. Sergeant DeMattia, in turn,
notified Captain D’Arelli that Vincent needed to “go out of the
country to attend family matters.” Then, upon his return in
December, Vincent provided his superiors with Karine’s medical
and financial records and a police report documenting her
absence from the family home, and explained why his trip to
Haiti was necessary. This information was enough to put CHP
on notice of Vincent’s need for emergency family leave. (Avila,
supra, 165 Cal.App.4th at p. 1258.)
The State counters that Vincent’s notice was
defective because he did not say that he stood in loco parentis to
his sister. But the cases on which the State relies to support this
argument are federal cases interpreting federal regulations
implementing the federal Family and Medical Leave Act. Under
the CFRA, it is the employer’s duty, not the employee’s, to
“inquire further . . . if necessary to determine whether the
employee is requesting CFRA leave and to obtain necessary
information concerning the leave” (Cal. Code Regs., tit. 2,
§ 11091, subd. (a)(1); see Avila, supra, 165 Cal.App.4th at pp.
1257-1258; Soria v. Univision Radio Los Angeles, Inc. (2016) 5
Cal.App.5th 570, 603-604)—something Commissioner Farrow,
Lieutenant Bueno, and others all confirmed that they knew.
Despite this knowledge, however, no one at CHP asked Vincent
12
for more information about his relationship with Karine or gave
him any CFRA paperwork to fill out. Any lack of notice was thus
due to CHP’s failures to follow CFRA regulations, not Vincent’s.
(Bareno v. San Diego Community College Dist. (2017)
7 Cal.App.5th 546, 570-571 (Bareno) [where employer fails to
follow regulations to evaluate employee’s leave request, it cannot
complain on appeal that it lacked notice thereof].)
3. Certification
“As a condition of granting a leave for the serious
health condition of [an] employee’s child, parent[,] or spouse, [an]
employer may require certification of the serious health
condition.” (Cal. Code Regs., tit. 2, § 11091, subd. (b)(1).) The
certification should include the date and probable duration of the
family member’s condition, an estimate of the amount of time the
employee will need to care for the family member, and a
statement that the condition “warrants the participation of the
employee to provide care” for the family member. (Cal. Code
Regs., tit. 2, § 11087, subd. (a)(1)(D).) Conditions that warrant
the participation of the employee to provide care include
“providing psychological comfort and arranging third party care
for the child, parent[,] or spouse, as well as directly providing, or
participating in, the medical care.” (Id., subd. (a)(1)(D)(1).) If the
employee’s certification meets the regulatory requirements, “the
employer must accept it as sufficient.” (Cal. Code Regs., tit. 2,
§ 11091, subd. (b)(1).) But if the employer has doubts about the
proffered certification, it may seek the opinions of additional
medical professionals. (§ 12945.2, subd. (k)(3).)
The State again wrongly blames Vincent for CHP’s
failure to follow CFRA rules. When Lieutenant Bueno spoke with
Vincent while he was in Haiti, he asked no questions about
13
Karine and gave him no forms to certify his need for CFRA leave.
Nevertheless, upon his return Vincent provided CHP with
medical records documenting Karine’s condition, and explained
his role in providing her medical care. CHP refused to accept or
evaluate the records, and instead stripped Vincent of his peace
officer duties. The State cannot now complain on appeal that the
records CHP refused to accept and evaluate—as it was required
to do—were somehow inadequate. (Bareno, supra, 7 Cal.App.5th
at p. 564.) Substantial evidence supports the jury’s
determination that Vincent proved his CFRA claims.7
FEHA claims
The State contends Vincent’s FEHA claims fail
because he did not provide substantial evidence of retaliatory
intent. This contention also lacks merit.
“[T]o establish a prima facie case of retaliation under
the FEHA, a plaintiff must show (1) [they] engaged in a
‘protected activity,’ (2) the employer subjected [them] 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 the employee
does so, “the employer is required to offer a legitimate,
nonretaliatory reason for the adverse employment action.” (Ibid.)
“If the employer produces a legitimate reason for the adverse
employment action, the presumption of retaliation ‘“‘drops out of
the picture,’”’ and the burden shifts back to the employee to prove
intentional retaliation.” (Ibid.) “The employee meets this burden
by ‘proving, with competent evidence, that the employer’s
7 Given our conclusion, the State’s contention that it was
denied a fair trial due to the purported errors related to Vincent’s
in loco parentis standing necessarily fails.
14
proffered justification [was a] mere pretext; i.e., that the
presumptively valid reason for the employer’s action was in fact a
coverup.’” (Nejadian v. County of Los Angeles (2019) 40
Cal.App.5th 703, 725.) We review for substantial evidence. (Id.
at p. 726.)
Substantial evidence supports the jury’s
determination that Vincent met his burden of proving that CHP
intentionally retaliated against him for taking protected leave.
As to the claim that Vincent was dishonest and mishandled
evidence, Officer Barriga said that was “inaccurate.” Jurors were
permitted to credit her testimony over evidence to the contrary.
(People v. Barnwell (2007) 41 Cal.4th 1038, 1052.)
As to the claim that Vincent went AWOL, the
evidence showed that Captain D’Arelli thought Vincent
“arrogant” for taking emergency family care leave. He initially
terminated Vincent because he was “AWOL”—even though he
knew that Vincent “had requested FMLA time off” to travel to
Haiti to care for Karine. After rescinding that termination,
Captain D’Arelli launched an investigation that, according to his
own orders, was “for termination.” That investigation
substantiated the AWOL claim against Vincent, but failed to
mention that Vincent had requested family care leave before
departing for Haiti—something multiple CHP officers knew. To
Commissioner Farrow, this suggested that Vincent simply
walked off the job. Such deliberate concealment supports the
jury’s determination that CHP possessed a retaliatory intent
when it fired Vincent. (Cf. People v. Avila (2006) 38 Cal.4th 491,
563 [attempt to conceal shows consciousness of guilt]; see also
Colarossi v. Coty US Inc. (2002) 97 Cal.App.4th 1142, 1154
15
[adverse action after employee engages in protected activity gives
rise to inference of retaliation].)
DISPOSITION
The trial court’s orders denying the State’s motion for
judgment notwithstanding the verdict and its motion for a new
trial, both entered October 18, 2019, are affirmed. Vincent shall
recover his costs on appeal. (Cal. Rules of Court, rule
8.278(a)(1).) He is also entitled to recover the attorney fees he
incurred in conjunction with this appeal in an amount to be
determined by the trial court. (§ 12965, subd. (b) [prevailing
plaintiff entitled to attorney fees in FRA and FEHA actions];
Morcos v. Board of Retirement (1990) 51 Cal.3d 924, 927 [statutes
authorizing attorney fees incurred at trial include attorney fees
incurred on appeal of those decisions].)
NOT TO BE PUBLISHED.
TANGEMAN, J.
We concur:
GILBERT, P. J.
YEGAN, J.
16
Donna D. Geck, Judge
Superior Court County of Santa Barbara
______________________________
Rob Bonta, Attorney General, Chris A. Knudsen,
Assistant Attorney General, Gary S. Balekjian and Catherine E.
Wise, Deputy Attorneys General, for Defendant and Appellant.
Olivier Schreiber & Chao, Monique Olivier; DePaul
Law, Michael J. DePaul; Erlich Law Firm and Jason Erlich for
Plaintiff and Respondent.
Sharon Terman, Katherine Wutchiett and Rachael
Langston for Legal Aid at Work, A Better Balance, The California
Employment Lawyers Association, California Women’s Law
Center, The Center for Law and Social Policy, Disability Rights
Advocates, The Disability Rights Legal Center, Equal Rights
Advocates, Family Values @ Work, The National Partnership for
Women & Families, National Women’s Law Center, Public
Counsel, and the U.C. Hastings Center for WorkLife Law as
Amici Curiae on behalf of Plaintiff and Respondent.