Plaintiff and appellant Henry Avila (plaintiff) appeals from a summary judgment entered against him on his claims that he was discharged from his employment with Chelsea Food Services (Chelsea), a division of defendant and respondent Continental Airlines, Inc. (Continental), in violation of the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12940 et seq.),
A. Factual Background
Chelsea was in the business of airline food catering at Los Angeles International Airport (LAX) and other locations. Plaintiff worked for Chelsea
In December 2004, plaintiff was hospitalized for acute pancreatitis and missed four days of work. Plaintiff testified that, when he returned to work, he provided two medical forms from Kaiser Permanente (the Kaiser forms) establishing that he had been hospitalized.
During January 2005, plaintiff incurred another recordable absence. On January 18, 2005, Chelsea's human resources manager Daysi Bellamy determined that plaintiff had been absent from work seven times in the preceding 12 months, and on that basis determined that plaintiff would be suspended and terminated. The absences relied on by Bellamy in reaching that decision are set forth on a monthly employee attendance review dated January 18, 2005, which document does not set forth the reasons for any of plaintiff's absences. Bellamy's decision to discharge plaintiff was approved by Chelsea's LAX general manager Judy Tanes and a human resources manager for Continental in Houston, neither of whom had any independent knowledge of plaintiff's employment situation. The next day, at Bellamy's direction,
Sometime prior to January 25, 2005, Bellamy informed Johnson that a decision had been made to terminate plaintiff's employment. Bellamy and Johnson met with plaintiff on January 25 and informed him that he was discharged, effective immediately. Plaintiff testified that, after he was told his employment was being terminated, he told Bellamy and Johnson that he had been hospitalized with pancreatitis. The next day, plaintiff and his nephew prepared and delivered a letter to general manager Judy Tanes explaining plaintiff's illness, providing the medical records related to plaintiff's hospitalization, and requesting plaintiff's reinstatement. Plaintiff also requested an appeal hearing pursuant to company policy. A divided company appeal board upheld the termination.
B. Procedural Background
Plaintiff commenced this action in October 2005. By late 2006, the only surviving claims were against Continental for (1) disability discrimination in violation of FEHA; (2) failure reasonably to accommodate plaintiff's disability in violation of FEHA; (3) wrongful termination in retaliation for plaintiff's exercise of his rights under CFRA; and (4) a Tameny
A. Standard of Review
On an appeal from a grant of summary judgment, we examine the record de novo to determine whether triable issues of material fact exist. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767 [107 Cal.Rptr.2d 617,
B. FEHA Claims
1. The Disability Discrimination Claim
FEHA provides, in relevant part, that "[i]t shall be an unlawful employment practice . . . [¶] (a) For an employer, because of the . . . physical disability [or] medical condition . . . of any person, to refuse to hire or employ the person . . . or to bar or to discharge the person from employment. . . ." (§ 12940, subd. (a); see Ross v. RagingWire Telecommunications, Inc. (2008) 42 Cal.4th 920, 925-926 [70 Cal.Rptr.3d 382, 174 P.3d 200].) FEHA proscribes two types of disability discrimination: (1) discrimination arising from an employer's intentionally discriminatory act against an employee because of his or her disability (referred to as disparate treatment discrimination), and (2) discrimination resulting from an employer's facially neutral practice or policy that has a disproportionate effect on employees suffering from a disability (referred to as disparate impact discrimination). (Knight v. Hayward Unified School Dist. (2005) 132 Cal.App.4th 121, 128-129 [33 Cal.Rptr.3d 287].) In opposing summary judgment, plaintiff asserted only disparate treatment discrimination.
To establish a prima facie case for disparate treatment discrimination, plaintiff must show (1) he suffers from a disability, (2) he is otherwise qualified to do his job, (3) he suffered an adverse employment action, and (4) the employer harbored discriminatory intent. (See Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355 [100 Cal.Rptr.2d 352, 8 P.3d 1089]; Arteaga v. Brink's, Inc. (2008) 163 Cal.App.4th 327, 342 [77 Cal.Rptr.3d 654] ["`"[T]he plaintiff must prove the ultimate fact that the defendant engaged in intentional discrimination."'"]; Knight v. Hayward Unified School Dist., supra, 132 Cal.App.4th at p. 128; Faust v. California Portland Cement Co.
To prevail on summary judgment, Continental was required to show either that (1) plaintiff could not establish one of the elements of the FEHA claim, or (2) there was a legitimate, nondiscriminatory reason for its decision to terminate plaintiff's employment. (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at pp. 355-356; Kelly v. Stamps.com Inc. (2005) 135 Cal.App.4th 1088, 1097-1098 [38 Cal.Rptr.3d 240]; see 3 Chin, et al., Cal. Practice Guide: Employment Litigation (The Rutter Group 2008) ¶ 19:728, p. 19-81.) Continental submitted evidence and the trial court concluded that plaintiff could not prove discriminatory intent because Bellamy and Johnson, the Continental employees who made the decision to discharge plaintiff, did not know of plaintiff's disability. The issue on appeal is thus whether plaintiff's evidence raised a triable issue of material fact with respect to whether Bellamy and Johnson knew of plaintiff's disability when they decided to discharge him. Plaintiff relies on evidence that (1) he "provided his supervisors medical forms confirming he had been hospitalized," (2) he "told numerous co-workers that he had had pancreatitis," (3) he asked Bellamy and the review board "why he was being penalized for his hospitalization," and (4) he and his nephew wrote a letter to Chelsea general manager Judy Tanes detailing his medical problems and attaching his medical records. Plaintiff's evidence fails to raise a triable issue of material fact.
a. The Kaiser Forms
(i) Relevant Background
The Kaiser forms are preprinted forms from Kaiser Permanente called "Documentation of Medical Impairment" forms. Plaintiff testified that he submitted two Kaiser forms to Continental. One Kaiser form, dated December 15, 2004, stated that plaintiff visited the Kaiser Permanente South Bay
Under section 12926, subdivision (k), "`[t]he touchstone of a qualifying [physical] disability is an actual or perceived physiological disorder which affects a major body system and limits the individual's ability to participate in one or more major life activities.'" (Bagatti v. Department of Rehabilitation (2002) 97 Cal.App.4th 344, 353-354 [118 Cal.Rptr.2d 443], quoting Cassista v. Community Foods, Inc. (1993) 5 Cal.4th 1050, 1061 [22 Cal.Rptr.2d 287, 856 P.2d 1143].) Physical disabilities do not include "sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from the current unlawful use of controlled substances or other drugs." (§ 12926, subd. (k)(6).)
As noted above, to show that Continental acted with discriminatory intent, plaintiff was required to produce evidence that the Continental employees who decided to discharge him knew of his disability. (Brundage v. Hahn, supra, 57 Cal.App.4th at pp. 236-237.) "While knowledge of the disability can be inferred from the circumstances, knowledge will only be imputed to the employer when the fact of disability is the only reasonable interpretation of the known facts. `Vague or conclusory statements revealing an unspecified incapacity are not sufficient to put an employer on notice of its obligations under the [FEHA].' [Citations.]" (Id. at p. 237.)
Moreover, in his response to Continental's separate statement of undisputed facts, plaintiff did not assert that the evidence raised a triable issue that Bellamy and Johnson knew that plaintiff was disabled—rather, plaintiff asserted that his evidence established that "Johnson and Bellamy knew Plaintiff was sick." (Italics added.) "Not every illness qualifies as [a] disability. . . ," however. (Mont-Ros v. City of West Miami (S.D.Fla. 2000) 111 F.Supp.2d 1338, 1352 [applying ADA]; see also Arteaga v. Brink's, Inc., supra, 163 Cal.App.4th at p. 348 ["Pain alone does not always constitute or establish a disability."].) Accordingly, that plaintiff suffered a disability was not "the only reasonable interpretation of the information in the Kaiser forms. (Brundage v. Hahn, supra, 57 Cal.App.4th at p. 237 [employer's knowledge that employee "had taken a substantial amount of leave for medical appointments" insufficient to establish employer's knowledge of disability]; see also Crandall v. Paralyzed Veterans of America (D.C.Cir. 1998) 330 U.S. App.D.C. 381 [146 F.3d 894, 896-897] ["the employer must have acted with an awareness of the disability itself, and not merely an awareness
b. Plaintiff Told Other Chelsea Employees
Plaintiff testified that, when he returned to work, "[p]eople—they always ask why you were sick. Obviously, I have to tell them why I was sick." Plaintiff could not "mention names, because probably I would have to tell you 50 person [sic]" who were plaintiff's "close friends probably." Plaintiff specified, however, that he did not discuss his pancreatitis with Chelsea's managers, including Johnson. Plaintiff believed he did not "have to tell the managers because the managers already know by the letters" (presumably, the Kaiser forms).
Plaintiff asserts that this testimony raised a triable issue whether Bellamy and Johnson knew of his alleged disability. We disagree. Plaintiff testified he did not tell Johnson or any of Chelsea's other managers that he suffered from pancreatitis. Plaintiff submitted no evidence that any of the "close friends" whom plaintiff told "why [he] was sick" actually relayed or had a duty to relay that information to Bellamy, Johnson or anyone else involved in the decision to discharge plaintiff. There is no basis to impute to Bellamy or Johnson actual knowledge of plaintiff's statements to his coworkers concerning his disability. (See Morgan v. Regents of University of California, supra, 88 Cal.App.4th at p. 73 [evidence that employer's decision makers were not aware that the plaintiff had filed a grievance was not controverted on summary judgment by evidence that other supervisory employees, who were not involved in the adverse employment decisions, knew of plaintiff's grievance]; see also Woodman v. WWOR-TV, Inc. (2d Cir. 2005) 411 F.3d 69, 87 [in federal age discrimination case, plaintiff's testimony that she told other employees her age was insufficient to raise triable issue; "[t]o defeat summary judgment, [plaintiff] was obliged to do more than produce evidence that someone at [employer company] knew her age. [Plaintiff] was obliged to offer evidence indicating that persons who actually participated in her termination decision had such knowledge"]; Hedberg v. Indiana Bell Telephone Co., Inc. (7th Cir. 1995) 47 F.3d 928, 931-932 [immediate supervisor's knowledge of employee's disability not imputed to decision maker in higher management]; Rogers v. CH2M Hill, Inc. (M.D.Ala. 1998) 18 F.Supp.2d 1328, 1337-1338 [in ADA case, nonmanagement employee's knowledge of fellow employee's depression "in no way reflect[s] the knowledge of employer].)
Plaintiff argues in his reply brief that knowledge of his disability could be "imputed to a decision-maker where others who provided information to the decision-maker knew of the [disability], or where it was reasonable that the
c. Posttermination Statements
Plaintiff testified that, after he was informed by Bellamy and Johnson that his employment was terminated, he informed Bellamy that he had been hospitalized with pancreatitis. Further, the day after he met with Bellamy and Johnson, he submitted a letter to general manager Judy Tanes explaining that plaintiff had been hospitalized with acute pancreatitis. Plaintiff submitted with the letter medical records related to his hospitalization. Plaintiff also testified that he told the company appeal board that he had had pancreatitis.
None of this evidence assists plaintiff. Evidence that a decision maker learned of a plaintiff's disability after deciding to take adverse employment action is not probative of whether the decision maker was aware of the plaintiff's disability when he or she made the decision. Such evidence is irrelevant to determining whether the decision maker acted from a discriminatory animus. (Brundage v. Hahn, supra, 57 Cal.App.4th at pp. 236-237 [decision maker must be aware of disability "when the adverse employment decision was made"]; see also Hedberg v. Indiana Bell Telephone Co., Inc., supra, 47 F.3d at pp. 931-932 [no discrimination when decision maker was informed of plaintiff's disability after making decision to discharge him].)
2. FEHA Failure-to-Accommodate Claim
Section 12940, subdivision (m) provides that it is an unlawful employment practice "[f]or an employer or other entity covered by this part to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee." "Two principles underlie a cause of action for failure to provide a reasonable accommodation. First, the employee must request an accommodation. [Citation.] Second, the parties must engage in an interactive process regarding the requested accommodation and, if the process fails, responsibility for the failure rests with the party who failed to participate in good faith. [Citation.]" (Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 54 [43 Cal.Rptr.3d 874]; see generally 2 Chin, et al., California Practice Guide: Employment Litigation, supra, ¶ 9:2346, p. 9-184.) The trial court granted summary judgment on the ground that plaintiff failed to raise a triable issue that he requested an accommodation from Continental. In his response to Continental's separate statement, plaintiff cited evidence that (1) he called in sick on December 15, 16 and 19 (the latter call for Monday, December 20); and (2) he submitted a medical excuse (the Kaiser forms) for his relevant absences.
Section 12940, subdivision (m) requires an employer to accommodate only a "known physical . . . disability." (Italics added; see also Cal. Code Regs., tit. 2, § 7293.9.) The employee bears the burden of giving the employer notice of his or her disability. (Raine v. City of Burbank (2006) 135 Cal.App.4th 1215, 1222 [37 Cal.Rptr.3d 899].) Although no particular form of request is required (Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 954 [62 Cal.Rptr.2d 142]), "`[t]he duty of an employer reasonably to accommodate an employee's handicap does not arise until the employer is "aware of respondent's disability and physical limitations." [Citations.]'" (Id. at pp. 949-950.) "`[T]he employee can't expect the
As discussed above, the information in the Kaiser forms was not sufficient to put Continental on notice that plaintiff suffered a disability covered by FEHA. Further, evidence that plaintiff "called in sick"—without further evidence regarding to whom at Continental plaintiff spoke or what plaintiff said—is inadequate to support a conclusion that plaintiff informed Continental of his disability or the physical limitations it caused, such that Continental was on notice that plaintiff required accommodation. Plaintiff cites no authority to the contrary. The trial court properly granted summary judgment on plaintiff's FEHA claims.
Continental terminated plaintiff for being absent. In a case of medical emergency, plaintiff might have shown after the fact that his absence was due to a qualifying disability, but plaintiff in this case did not timely present to the appropriate managers information that his absence was due to a qualifying disability. The termination therefore does not violate FEHA.
C. CFRA Claim
Plaintiff asserts that he was discharged in retaliation for taking leave under CFRA. 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 [88 Cal.Rptr.2d 239].) In general, CFRA makes it an unlawful employment practice for an employer of 50 or more persons to refuse to grant an employee's request to take up to 12 "workweeks" in any 12-month period for family care and medical leave. (§ 12945.2, subds. (a), (c)(2)(A); see generally Lonicki v. Sutter Health Central (2008) 43 Cal.4th 201, 208-209 [74 Cal.Rptr.3d 570, 180 P.3d 321] (lead opn. of Kennard, J.).) CFRA also prohibits an employer "to refuse to hire, or to discharge, fine, suspend, expel, or discriminate against, any individual because of" his or her "exercise of the right to family care and medical leave provided by subdivision (a)." (§ 12945.2, subd. (l)(1); see also Cal. Code Regs., tit. 2, § 7297.7,
"Family care and medical leave" includes "[l]eave because of an employee's own serious health condition that makes the employee unable to perform the functions of the position of that employee," with certain exceptions relating to pregnancy or childbirth. (§ 12945.2, subd. (c)(3)(C).) A "serious health condition" is defined as "an illness, injury, impairment, or physical or mental condition that involves either of the following: [¶] (A) Inpatient care in a hospital, hospice, or residential health care facility. [¶] (B) Continuing treatment or continuing supervision by a health care provider." (§ 12945.2, subd. (c)(8); see Cal. Code Regs., tit. 2, § 7297.0, subd. (o).) That is, "for an employee to be entitled to a medical leave for her own serious health condition, the condition must cause her to be unable to work at all or unable to perform one or more of the essential functions of her position." (Neisendorf v. Levi Strauss & Co., supra, 143 Cal.App.4th at pp. 516-517.)
"[T]he elements of a cause of action for retaliation in violation of CFRA . . . are as follows: (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. . . , because of her exercise of her right to CFRA leave." (Dudley v. Department of Transportation, supra, 90 Cal.App.4th at p. 261; accord, Faust v. California Portland Cement Co., supra, 150 Cal.App.4th at p. 885.) The trial court granted summary judgment on the ground that plaintiff's only evidence that he requested CFRA leave was that he called in sick, which the trial court deemed to be insufficient as a matter of law.
1. Triable Issue of Adequate Request
As with his FEHA failure-to-accommodate claim, plaintiff cited in his response to Continental's separate statement evidence that (1) he called in sick on December 15, 16 and 19 (for Dec. 20); and (2) he submitted a
That plaintiff called in sick was, by itself, insufficient to put Continental on notice that he needed CFRA leave for a serious health condition. (See Gibbs v. American Airlines, Inc. (1999) 74 Cal.App.4th 1, 9 [87 Cal.Rptr.2d 554] ["an employee who calls in sick to work for several days while taking antibiotics for an apparent flu has not provided her employer with `notice sufficient to make the employer aware that the employee needs CFRA-qualifying leave'"]; see also Stevens v. Department of Corrections (2003) 107 Cal.App.4th 285, 292 [132 Cal.Rptr.2d 19] ["in the context of leave for an employee's own serious health condition, the mere notice that an employee seeks to use sick time is insufficient to place the employer on notice that the employee seeks CFRA-qualifying leave"] [dictum].)
Plaintiff, however, also testified that he provided Continental with the Kaiser forms. The December 19 Kaiser form indicated that plaintiff had been hospitalized for three days. As noted above, CFRA defines as a "serious health condition" any "illness, injury, impairment, or physical or mental condition that involves . . . [¶] . . . [i]npatient care in a hospital." (§ 12945.2, subd. (c)(8); see Cal. Code Regs., tit. 2, § 7297.0, subd. (o).) Whether notice is sufficient under CFRA is a question of fact. (See Manuel v. Westlake Polymers Corp. (5th Cir. 1995) 66 F.3d 758, 764 [under FMLA, "[w]hat is practicable, both in terms of the timing of the notice and its content, will depend upon the facts and circumstances of each individual case"]; Mora v. Chem-Tronics, Inc. (S.D.Cal. 1998) 16 F.Supp.2d 1192, 1217 [under FMLA].) The issue is thus whether a reasonable trier of fact (see Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 846) could conclude that (1) plaintiff submitted the December 19 Kaiser form to Continental; and (2) if so, whether doing so constituted a "request" for leave for a CFRA-qualifying purpose.
a. Whether Plaintiff Submitted the Kaiser Forms
Continental argues, and the trial court concluded, that plaintiff's testimony that he submitted the Kaiser forms to Continental was not substantial evidence that he did so because the testimony was "at best equivocal and at worst contradictory and inconclusive." We disagree. Plaintiff's testimony that he submitted the Kaiser forms was not mere "speculation or conjecture" (Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 807
Continental asserts that plaintiff's other testimony is equivocal and indicates that plaintiff, in fact, did not remember whether he submitted the Kaiser forms to Continental. Read in context and in the light most favorable to plaintiff, however, a reasonable trier of fact could interpret that testimony to relate not to whether plaintiff submitted the Kaiser forms to Continental, but specifically to whom at Continental he gave the Kaiser forms. Plaintiff's testimony that he might have the left the forms on the manager's desk rather than handing them personally to the manager also is not an equivocation— plaintiff testified that this was how he "usually" submitted medical excuses. That plaintiff was unable to recall precisely to whom or in what manner he submitted the Kaiser forms does not render his testimony that he did so mere speculation. It is the trier of fact's function at trial to determine whether plaintiff's testimony is credible.
b. Request for CFRA Leave
CFRA does not define what constitutes a "request" for leave. Instead, the Legislature expressly delegated to the Commission the task of "adopt[ing] a regulation specifying the elements of a reasonable request" for CFRA leave. (§ 12945.2, subd. (a); see Cal. Code Regs., tit. 2, § 7297.1, subd. (b)(2) ["A request to take a CFRA leave is reasonable if it complies with any applicable notice requirements, as specified in section 7297.4 . . . ."].) The regulation adopted by the Commission 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-qualifying 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 employer should inquire further of the employee if it is necessary to have more information about whether CFRA leave is being sought by the employee and obtain the necessary details of the leave to be taken." (Cal. Code Regs., tit. 2, § 7297.4, subd. (a)(1).) The regulation further provides, "Under all circumstances, it is the employer's responsibility to designate leave, paid or unpaid, as CFRA or CFRA/FMLA qualifying,
When the need for leave is foreseeable, an employer may require up to 30 days' advance notice. (Cal. Code Regs., tit. 2, § 7297.4, subd. (a)(2).) When the need is not foreseeable—as in cases of medical emergency— "notice must be given as soon as practicable." (Cal. Code Regs., tit. 2, § 7297.4, subd. (a)(3).) An employer may not deny leave for a medical emergency because the employee did not provide advance notice. (Cal. Code Regs., tit. 2, § 7297.4, subd. (a)(4).)
A reasonable trier of fact could conclude that plaintiff provided sufficient notice to put Continental on notice that plaintiff needed CFRAqualifying leave. In a case involving a medical emergency, notice on a hospital's preprinted form that an employee was hospitalized and unable to work may be sufficient to inform an employer that the employee might have suffered a serious medical condition under CFRA, and the timing and duration of the necessary leave. The absence itself under such circumstances suggests the necessity of a leave—at least as to those absent days. Such information may be "sufficient to make the employer aware that the employee needs CFRA-qualifying leave," and thus may constitute a "request" for leave under CFRA. (Cal. Code Regs., tit. 2, § 7297.4, subd. (a)(1); see Mora v. Chem-Tronics, Inc., supra, 16 F.Supp.2d at p. 1212 [under FMLA, notice sufficient when employee told employer that son was HIV positive, had a high fever, and that employee could not leave son "`when he is so ill'"]; Brannon v. Oshkosh B'Gosh, Inc., supra, 897 F.Supp. at pp. 1032-1033, 1038-1039 [under FMLA, notice sufficient when employee called to tell employer that employee's daughter was too sick for [employee] to come to work and employee's husband delivered physician's note saying, "Please excuse off work till 1-12-94."].) The regulation expressly provides that plaintiff was not required to invoke CFRA to request leave. If Continental required further information as to whether the information was a request that the absence be treated as a CFRA-qualifying leave, the burden was on
Because plaintiff's need for leave was unforeseeable due to an emergency medical condition, and because plaintiff testified that he both called in sick during his absence and submitted the Kaiser forms to Continental upon returning to work, a reasonable trier of fact could also conclude that plaintiff requested leave "as soon as practicable." (Cal. Code Regs., tit. 2, § 7297.4, subd. (a)(3); see Sims v. Alameda-Contra Costa Transit District (N.D.Cal. 1998) 2 F.Supp.2d 1253, 1267 [under FMLA, plaintiff provided adequate notice when he signed employer's "sick book" three times and provided "doctor's slips within two days of his return to work"].)
2. Triable Issue of Causal Connection
Continental recognizes that the Kaiser forms, if received by Continental, "arguably would have provided notice that [plaintiff] had been hospitalized and thus would have been germane to the CFRA claim . . . ." Continental nevertheless argues that there is no evidence that Bellamy and Johnson personally were aware of plaintiff's "protected conduct or status," so that plaintiff's discharge could not have been "because of" plaintiff's exercise of his right to CFRA leave, as required by section 12945.2, subdivision (l). We believe Continental's analysis of CFRA is not correct.
The "because of" language in section 12945.2, subdivision (l) requires only proof of a causal connection between the employee's protected status or conduct and the adverse employment action taken by the employer. (Dudley v. Department of Transportation, supra, 90 Cal.App.4th at p. 261 [CFRA retaliation claim]; see also Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 478 [4 Cal.Rptr.2d 522] [FEHA retaliation claim].) Continental does not dispute that it assessed two recordable absences against plaintiff for missed work due to his hospitalization and recovery. Nor does Continental dispute that Bellamy and Johnson knew of those absences and discharged plaintiff in reliance on—that is, "because of"—those absences. The facts are sufficient to demonstrate a causal link between plaintiff's leave and his discharge.
Continental argues, in effect, that proof of a causal connection requires that Bellamy and Johnson knew not only of plaintiff's conduct (that is, his
The rule advocated by Continental would be inconsistent with the antidiscrimination provisions of CFRA, and would encourage managers to remain ignorant of both the law and the facts relating to CFRA leave. For example, if an employer has a no-fault attendance policy mandating termination after a certain number of absences, then an employee can be discharged automatically for absences. Under the rule advocated by Continental, if the employer's human resources manager remains ignorant either that the employee's leave was for a serious health condition, or that leave for a serious health condition is protected by CFRA, then the discharge would not be "because of" the employee's exercise of CFRA rights, and the employer could not be
Moreover, a principle allocating to an employee-plaintiff the burden of proving that a manager subjectively knew that an employee's conduct was legally protected would, in effect, require a plaintiff to negate an employer's good faith as part of the employee's prima facie case.
We have concluded that plaintiff submitted sufficient evidence to raise a triable issue of fact whether the Kaiser forms under the circumstances
D. Tameny Claim for Termination in Violation of Public Policy
Because triable issues precluded summary adjudication of plaintiff's claim for violation of CFRA, it necessarily follows that triable issues precluded summary adjudication of plaintiff's Tameny claim for wrongful termination in violation of public policy. (Faust v. California Portland Cement Co., supra, 150 Cal.App.4th at p. 886; Nelson v. United Technologies, supra, 74 Cal.App.4th at p. 612 ["an employee may state a claim under California law for wrongful termination in violation of the public policy within the CFRA"].)
E. Continental's Motion for Sanctions
Continental requests that this court impose sanctions against plaintiff's appellate counsel on the grounds that plaintiff's appeal was "patently" frivolous. We deny Continental's motion.
"`Free access to the courts is an important and valuable aspect of an effective system of jurisprudence, and a party possessing a colorable claim must be allowed to assert it without fear of suffering a penalty more severe than that typically imposed on defeated parties.'" (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 648 [183 Cal.Rptr. 508, 646 P.2d 179] (Flaherty).) Nevertheless, California courts are authorized to impose sanctions against a party or counsel when he or she has abused the right of free access by prosecuting a frivolous appeal. (Code Civ. Proc., § 907 ["When it appears to the reviewing court that the appeal was frivolous or taken solely for delay, it may add to the costs on appeal such damages as may be just."]; see also Cal. Rules of Court, rule 8.276(a)(1).)
Sanctions should be "used most sparingly to deter only the most egregious conduct." (Flaherty, supra, 31 Cal.3d at p. 651.) That an appeal lacks merit does not, alone, establish that it is frivolous. (Dodge, Warren & Peters Ins. Services, Inc. v. Riley (2003) 105 Cal.App.4th 1414, 1422 [130 Cal.Rptr.2d 385].) An appeal is frivolous "only when it is prosecuted for an improper motive—to harass the respondent or delay the effect of an adverse judgment—or when it indisputably has no merit—when any reasonable attorney would agree that the appeal is totally and completely without merit."
Although we have concluded that plaintiff's appeal on his FEHA claims lacked sufficient merit, it was not frivolous. Plaintiff had a "colorable argument . . . that the judgment resulted from an error of law." (Summers v. City of Cathedral City (1990) 225 Cal.App.3d 1047, 1078 [275 Cal.Rptr. 594].) The requirement of decision maker knowledge of a plaintiff's disability in FEHA discrimination and failure-to-accommodate claims is well established under California law. California law is not as well developed, however, with respect to the circumstances in which a decision maker will be deemed to have such knowledge. Continental cited, and we are aware of, no California case that was factually on point and therefore dispositive of plaintiff's FEHA claims. Moreover, the fact that Continental devoted 11 pages of its brief and cited more than two dozen cases—most of them nonbinding federal decisions under the ADA—to support its argument on this issue is illustrative of the uncertainty in California law. This is not to say that uncertainty in the law is necessary to avoid sanctions for an appeal. (See Simonian v. Patterson (1994) 27 Cal.App.4th 773, 786 [32 Cal.Rptr.2d 722], quoting rule 3-200 of the California State Bar Association's Rules of Professional Conduct [A member should not present a claim "`unless it can be supported by a good faith argument for an extension, modification, or reversal of such existing law'"].)
With respect to plaintiff's CFRA and Tameny claims, we have determined that plaintiff's appeal was meritorious. Continental's motion for sanctions is therefore denied.
The summary adjudications of plaintiff's FEHA claims are affirmed. The summary adjudications of plaintiff's CFRA and Tameny claims are reversed, and the matter is remanded for further proceedings consistent with this opinion. Each party is to bear his or its own costs on appeal.
Armstrong, Acting P. J., concurred.
KRIEGLER, J., Concurring and Dissenting.
I concur in the majority's holding that summary judgment was properly granted on Henry Avila's California Fair Employment and Housing Act (the FEHA; Gov. Code, § 12900 et seq.) cause of action, but respectfully dissent from reversal of the summary judgment on California's Moore-Brown-Roberti Family Rights Act (the CFRA;
One need only look to Avila's unambiguous deposition testimony in order to conclude the trial court properly granted summary judgment on the basis there was never a request for CFRA leave by Avila. The following testimony was given by Avila in his deposition:
"Q: Okay. Now, at any time, did you ask Chelsea or any manager at Chelsea saying you wanted a leave of absence? You didn't, did you?
"Q: Okay. You would just miss work when you missed work because of the reasons you explained. But you never asked for—
"A: No, no.
"Q: —leave of advance [sic] or anything like that?
"Q: And did you—and you never asked afterwards to say, let me treat that as a leave?
As this colloquy makes clear, Avila does not claim to have ever made a request under the CFRA. In fact, it is undisputed that the first time Avila ever mentioned the issue of leave under the CFRA was months after his termination, when Avila filed charges with the Department of Fair Employment and Housing. The trial court correctly ruled there was no request for leave under the CFRA in granting Chelsea's motion for summary judgment.
The absence of a request for leave is fatal to Avila's CFRA cause of action. Under the CFRA, it is "an unlawful employment practice for any employer. . . to refuse to grant a request by any employee" who qualifies under the act "for family care and medical leave." (Gov. Code, § 12945.2, subd. (a),
Not only does the express language of Government Code section 12945.2, subdivision (a) require a request for leave by the employee, the implementing regulation contains a similar requirement. California Code of Regulations, title 2, section 7297.4, subdivision (a)(1) provides that the "[a]n employee shall provide at least verbal notice sufficient to make the employer aware that the employee needs CFRA-qualifying 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 employer should inquire further of the employee if it is necessary to have more information about whether CFRA leave is being sought by the employee and obtain the necessary details of the leave to be taken." (Italics added.)
Moreover, if it is not practical to provide advance notice of the need for leave because the need is unforeseeable, the employee must give notice "as soon as practicable." (Cal. Code Regs., tit. 2, § 7297.4, subd. (a)(3).) The regulation clearly contemplates an employee's request for leave, because "[t]he employer shall respond to the leave request as soon as practicable and in any event no later than ten calendar days after receiving the request." (Id., subd. (a)(6), italics added.)
Despite the uncontradicted evidence that Avila never requested leave under the CFRA, the majority holds that Avila's own conflicting deposition testimony
Avila's conduct did not constitute a request for leave as defined in the California Code of Regulations, title 2, section 7297.4. He never gave verbal or written notice that he was requesting a leave. He did nothing to let his employer know the reason for his need for a leave. When Avila returned to
In addition to summary judgment being properly granted because a request for leave under the CFRA was never made by Avila, there is a second, independent basis to uphold the grant of summary judgment. It is undisputed the persons responsible for the decision to terminate Avila had no knowledge of his hospitalization. Because the managers had no knowledge of the hospitalization and Avila never made a request for a CFRA leave, I cannot see how there is a triable issue of fact as to whether Continental committed an unlawful employment practice.
Daysi Bellamy, the human resources manager of Chelsea, made the decision to terminate Avila and presented an uncontroverted declaration that she had no knowledge of Avila's hospitalization before making the termination decision. Similarly, Judy Tanes, the managing director of Chelsea, approved Avila's discharge, expressly declared that she had no knowledge of Avila's medical condition, and was unaware of any request for leave from him prior to the date of his termination. There is no evidence anyone affiliated with Chelsea ever saw the Kaiser Permanente report of Avila's hospitalization prior to the time Avila's employment was terminated.
There cannot be an unfair employment practice under the CFRA where the employer has no knowledge of the employee's condition. It is manifestly unreasonable to require an employer to defend against a CFRA cause of action at trial on a claim that it improperly denied leave where the undisputed facts demonstrate the employer had no knowledge of any condition justifying such leave and no request for leave is made by the employee.
In a similar context arising under the FEHA, this court has held that an employee cannot make a prima facie case of discrimination sufficient to survive summary judgment where the undisputed facts show the employer had no knowledge of the employee's condition. (Trop v. Sony Pictures Entertainment, Inc. (2005) 129 Cal.App.4th 1133 [29 Cal.Rptr.3d 144] [employee's claim that she was terminated due to her pregnancy did not survive
I would affirm the trial court's order granting summary judgment in its entirety.