Employee’s Termination Soon After Her Verbal Request for Leave Supported Retaliation Claim

Category: Client Update
Date: Feb 10, 2017 11:45 AM

Leticia Bareno was disciplined by her employer, the San Diego Miramar College, in 2013 for various issues related to absences and inefficiency.  Thereafter, Bareno requested and was granted medical leave based on the medical certification she provided.   Bareno then emailed her supervisor a recertification of her need for additional leave.  The College claimed that the supervisor did not receive Bareno’s email.

After five consecutive days passed and Bareno did not return to work, the College took the position that Bareno had voluntarily resigned.  The College mailed notice of her voluntary resignation and the five-day time period to challenge the resignation to Bareno’s San Diego area post office box.  Bareno had been receiving her medical treatment in Riverside County.  By the time Bareno retrieved her mail from her San Diego area post office box and learned of her voluntary resignation, the time period for challenging her resignation had passed.  Bareno nonetheless continued to provide the College with additional copies of her certification for a continuation of her original medical leave.  She also met with the College to discuss her documentation and need for leave.  Bareno explained that she had not learned about her ability to challenge her voluntary resignation until after the five-day challenge period had expired.  The College refused to reconsider. 

Bareno sued, alleging that the College had retaliated against her for taking medical leave by terminating her employment, in violation of the California Family Rights Act (CFRA –Gov. Code section 12945.2.)  The College moved for summary judgment on Bareno’s claim for retaliation under CFRA, and the trial court granted the motion.  Bareno appealed, and the Court of Appeal reversed, finding that Bareno should be allowed to proceed to trial.

Subject to some qualifications, the CFRA grants an employee up to 12 workweeks of leave in a 12-month period for the employee’s own serious health condition.  The CFRA requires employers to provide their employees with notice of their CFRA leave rights.  An employer who fails to give its employees notice of their leave rights cannot take any adverse action – including the denial of leave--  against an employee who fails to provide the employer advance notice of the need for leave.  

The elements of a cause of action for retaliation in violation of CFRA are: (1) the employer was covered by CFRA; (2) the employee was eligible to take CFRA leave; (3) the employee exercised her right to take leave for a qualifying CFRA purpose; and (4) the employer took an adverse employment action against the employee, such as termination, fine, or suspension, because of her exercise of her right to CFRA leave.

The College argued in the Court of Appeal that Bareno could not establish retaliation as to the third element 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 an email, the doctor’s note she offered did not meet the requirements of the CFRA and therefore was not a reasonable request.  The College also argued that Bareno could not establish that the College fired her because of her request for CFRA leave.

First, the Court determined that Bareno did provide sufficient notice of her need for CFRA leave.  The CFRA allows an employee to provide only verbal notice of the anticipated duration of needed leave, and does not require that the employee even mention CFRA in the request for leave.  The CFRA also gives the employee 15-days to provide medical certification of the leave after the employer’s request.   Bareno provided the College verbal notice of her leave at least one week before the College sent her the written notice of voluntary resignation.  Bareno called her supervisor to say that she was sick, depressed, stressed, and had to go to the hospital.  Later that day, Bareno emailed her supervisor about the duration of her leave provided a certification of her need for leave.  The Court was not persuaded by the fact that the College claimed not to have received Bareno’s email, because of Bareno’s verbal communications with the College prior to the email, and because of the many emails she sent after the “unreceived” email.   Even though Bareno was in contact with the College, the College never told her it had not received her medical certification.

Second, the Court did not buy the College’s argument that Bareno could not establish that she was terminated for requesting and using CFRA leave.  The College contended that it terminated Bareno for abandoning her job.  The Court found that when an adverse employment action “follows hard on the heels of protected activity, the timing is often strongly suggestive of retaliation.” 

The Court reversed the trial court’s grant of summary judgment and sent the case back to the trial court.

Bareno v. San Diego Community College District (2017) ___ Cal.App.4th ___.

Note: 

This case provides a reminder that there are no “magic words” that an employee has to use to request CFRA leave, nor must the employee’s medical certification follow any particular format.  Instead, employers must always advise their employees about their rights to CFRA leave, regardless of the employee’s attendance record.  Employers who doubt the validity or format of a medical certification must still engage with the employee in good faith.

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