Bareno v. San Diego Community College District

Facts

Leticia Bareno worked for San Diego Miramar College beginning in March 1999, rising to senior secretary at the school of business, technical careers and workforce development. (Bareno v. San Diego Community College Dist. (2017) 7 Cal.App.5th 546, 552.) After a disciplinary history that included a 2006 “Last Chance Agreement” and a series of reprimands in 2012, the College suspended her for three days without pay, running from February 20 through February 22, 2013. (Id. at pp. 552–553.)

On Monday, February 25, 2013, Bareno called her supervisor, Dean Lynne Ornelas, at 4:30 a.m. to report that she would not be at work because she “needed to seek medical attention,” explaining that she was “sick, depressed, stressed, and had to go to the hospital.” (Bareno, supra, 7 Cal.App.5th at p. 553.) That evening she e-mailed Ornelas that she would be out on medical leave through March 1, 2013. (Ibid.) On February 27, she e-mailed Ornelas a Kaiser Permanente “Work Status Report” placing her off work from February 25 through March 1, 2013, with an onset date of February 25; nothing in the record suggested the College regarded that certification as insufficient. (Id. at pp. 553–554.)

On Friday, March 1, Bareno e-mailed vice-president Jerry Buckley — who received the message — stating that she was “out on a … medical leave” and would “notify all concern[ed] of [her] return.” (Bareno, supra, 7 Cal.App.5th at p. 554.) The same day, from a UPS Store, she e-mailed Ornelas a second “Work Status Report,” signed by Dr. Evan George Tzakis, placing her off work from March 1 through March 8, 2013 — the disputed week. (Ibid.) Ornelas claimed she never received that March 1 e-mail. (Ibid.)

Bareno did not appear for work the week of March 4. On March 6, the College’s human-resources staff noted that five consecutive days of unauthorized absence would constitute abandonment of position under the governing collective bargaining agreement. (Bareno, supra, 7 Cal.App.5th at p. 554.) The only contact during that week was a call from a coworker who left a message that she was “‘checking up on’” Bareno; nothing indicated the call was an official inquiry about her leave or certification. (Id. at p. 555.) On Friday, March 8, vice-chancellor Will Surbrook mailed Bareno a certified letter stating that her unauthorized absences constituted a voluntary resignation effective March 11, 2013. (Ibid.) Notably, also on March 8, College administrator Peter Alvino acknowledged in an internal e-mail that although Bareno’s “leave is only approved through March 1st,” she “may request from her physician an extension from March 4th and forward.” (Ibid.)

Bareno, who had been receiving treatment in Riverside County, continued to send certifications: a March 9 “Work Status Report” covering March 8–15 (again listing onset of February 25), a March 13 e-mail with a formal leave-of-absence form, and a March 18 fax. (Bareno, supra, 7 Cal.App.5th at pp. 555–556.) She did not learn of the “voluntary resignation” letter until March 18, when she retrieved her mail. (Id. at p. 556.) Thereafter she met with Alvino on April 3 and supplied all of her Kaiser documentation, and mailed further copies on April 5 and April 19. (Id. at pp. 556–557.) On April 16, Alvino wrote that none of the documents “supports your claim that you requested a leave of absence for the dates in question,” and the College continued to “accept[]” her “voluntary resignation.” (Id. at p. 557.)

Procedural history

Bareno filed a single-count complaint on February 21, 2014, alleging retaliation in violation of CFRA. (Bareno, supra, 7 Cal.App.5th at p. 557.) SDCCD moved for summary judgment, which the trial court granted on October 9, 2015, entering judgment for the District on October 27, 2015; Bareno timely appealed. (Ibid.) The trial court had concluded that Bareno could not establish her prima facie case because she “did not show [that] she requested leave” and because, even crediting the UPS-Store e-mail, “the doctor’s note she offered did not meet the requirements of the CFRA to constitute a ‘reasonable request.’” (Id. at p. 561.)

Issue

Whether SDCCD was entitled to summary judgment on Bareno’s CFRA retaliation claim — specifically, (1) whether the undisputed evidence established that Bareno did not “exercise[] her right to take leave for a qualifying CFRA purpose,” because she purportedly failed to give adequate notice or adequate medical certification for the week of March 4–8, 2013; and (2) whether the undisputed evidence established that she did not suffer an adverse employment action “because of” her exercise of CFRA rights, given the District’s proffered belief that she had abandoned her job. (Bareno, supra, 7 Cal.App.5th at pp. 561–562.)

Holding

Reasoning

1. The summary-judgment lens and CFRA’s two theories. Reviewing de novo, the court emphasized that it must “view the evidence in a light favorable to plaintiff as the losing party … resolving any evidentiary doubts or ambiguities in plaintiff’s favor,” and that “the evidence must be incapable of supporting a judgment for the losing party in order to validate the summary judgment.” (Bareno, supra, 7 Cal.App.5th at pp. 557–558.) It framed CFRA (Gov. Code, § 12945.2) as protecting an employee’s opportunity “to take leave from work for certain personal or family medical reasons without jeopardizing job security,” with violations falling into “‘interference’” and “‘retaliation’” theories. (Id. at pp. 558–559.) Bareno pleaded only retaliation, governed by the McDonnell Douglas burden-shifting framework. (Id. at pp. 559–560.)

2. The 30-day advance-notice rule is inapplicable to unforeseeable leave. The heart of the opinion is its construction of CFRA’s notice regime. CFRA “does not itself define what constitutes a valid ‘request’ for CFRA leave,” delegating that task to the implementing regulations, and it requires advance notice only where “the employee’s need for a leave … is foreseeable.” (Bareno, supra, 7 Cal.App.5th at p. 562.) Where the need is unforeseeable, the statute “is silent,” and the regulations supply the rule: the 30-day general rule “is inapplicable when the need for medical leave is not foreseeable,” and “[i]f 30 days’ notice is not practicable … notice must be given as soon as practicable.” (Id. at pp. 562–563, quoting Cal. Code Regs., tit. 2, § 11091, subd. (a)(3).) Critically, “‘[a]n employer shall not deny a CFRA leave, the need for which is an emergency or is otherwise unforeseeable, on the basis that the employee did not provide advance notice … so long as the employee provided notice to the employer as soon as practicable.’” (Id. at p. 563, quoting § 11091, subd. (a)(4).)

3. Sufficiency of notice is a question of fact. Reading CFRA “as a whole,” the court found a “scheme in which employees are provided reasonable time within which to request leave for a qualifying purpose, and to provide the supporting certification … particularly when the need for leave is not foreseeable or when circumstances have changed subsequent to an initial request.” (Bareno, supra, 7 Cal.App.5th at p. 565.) From this it followed that “[w]hether notice is sufficient under CFRA is a question of fact.” (Ibid.) On the record, a fact finder could conclude that Bareno’s repeated communications — her February 25 call and e-mail, her February 27 certification, her March 1 e-mail to Buckley (received) announcing continued leave, and her March 1 UPS-Store e-mail to Ornelas attaching the disputed certification — amounted to a reasonable request for leave “for the entire period during which she was absent.” (Id. at pp. 566–568.)

4. The employer’s duty to inquire and the disputed e-mail. The court rejected SDCCD’s reliance on Ornelas’s claim that she never received the March 1 e-mail. Whether the e-mail arrived “would not settle the question” of reasonableness “given all of the circumstances of her multiple communications.” (Bareno, supra, 7 Cal.App.5th at p. 567.) Moreover, CFRA “places on employers an obligation to make inquiries of an employee if it requires additional information,” and a fact finder could conclude the District “did not fulfill its obligations” by failing to contact Bareno about the supposed gap in certification. (Id. at pp. 567–568, citing Cal. Code Regs., tit. 2, § 11091, subd. (a)(1).) Because credibility is not resolved on summary judgment, the court noted the evidence could equally support a finding that Ornelas did receive the e-mail, “such that any failure in communication was due to an error on Bareno’s employer’s part.” (Id. at p. 568, fn. 16.)

5. Leave may precede certification; certification was adequate. The court underscored that the regulations “expressly contemplate that an employee may be out on CFRA-protected leave prior to providing medical certification,” because the leave “‘may begin before the employer receives the certification’” and the employer must allow “up to 15 days” to supply it. (Bareno, supra, 7 Cal.App.5th at p. 568, quoting Cal. Code Regs., tit. 2, § 11091, subd. (b)(3).) Tellingly, Alvino’s own e-mail showed the District “was aware that CFRA-protected leave may be taken even when an employee has not yet provided his or her certification.” (Ibid.) On the merits of the certification, the Kaiser “Work Status Report” supplied the date of onset (“2/25/2013”), the probable duration (off work “from 3/1/2013 through 3/8/2013”), and an indication that leave was medically necessary — satisfying section 12945.2, subdivision (k)(1). (Id. at pp. 569–570.) That the form did not name her condition was immaterial, since the regulations make disclosure of the underlying condition optional. (Id. at p. 570 & fn. 18.) And because SDCCD had accepted a “virtually identical form” for the prior week and never told Bareno her documentation was deficient or invoked the second-opinion procedure, it could not obtain judgment on inadequacy grounds. (Id. at pp. 570–571.)

6. Causation — temporal proximity and triable retaliation. Turning to the fourth element, the court observed that the decision to treat Bareno as having “voluntarily resigned” — “effectively a termination” — “took place only after she sought medical leave, and virtually immediately thereafter.” (Bareno, supra, 7 Cal.App.5th at p. 571.) Invoking the rule that “‘[w]hen an adverse employment action follows hard on the heels of protected activity, the timing often is strongly suggestive of retaliation,’” the court found a “close temporal connection” between her medical absence and her effective termination. (Ibid., quoting Collazo v. Bristol-Myers Squibb Manufacturing, Inc. (1st Cir. 2010) 617 F.3d 39, 50.)

7. The proffered nonretaliatory reason did not foreclose trial. Finally, the District’s asserted good-faith belief that Bareno had abandoned her job “does not entitle it to judgment as a matter of law.” (Bareno, supra, 7 Cal.App.5th at p. 572.) The court dismantled each pillar of that belief: the unreceived March 1 e-mail was disputed; the coworker’s call was reasonably a personal check-in, not an official inquiry; and the March 8 resignation letter could not bear on the District’s state of mind during the March 4–8 absence because it “did not place that letter to Bareno in the mail until March 8.” (Id. at pp. 572–573.) Because the record was “replete with evidence” that the District “knew, or reasonably should have known,” that Bareno had no intention of resigning, a fact finder could conclude it interpreted her absences as a resignation “in retaliation for Bareno taking medical leave.” (Id. at pp. 573–574.)

Significance

Bareno is among the most employee-favorable published treatments of CFRA’s notice and certification machinery, and it repays close reading on three fronts. First, it firmly locates the advance-notice question in the foreseeability of the need: the familiar “30 days’ advance notice” requirement simply does not apply to a medical emergency or other unforeseeable need, for which the only obligation is to notify the employer “as soon as practicable.” (Bareno, supra, 7 Cal.App.5th at pp. 562–563.) An employer that denies leave for want of advance notice, where notice was given as soon as practicable, violates the regulation outright. Second, it converts the sufficiency of notice — and, by extension, the reasonableness of the employee’s communications across a shifting course of treatment — into a quintessential jury question, making summary judgment difficult where the employee has communicated repeatedly. (Id. at p. 565.) Third, it confirms that leave may lawfully begin before certification is furnished, that the employer carries an affirmative duty to inquire and to invoke the statutory second-opinion process if it doubts a certification, and that an employer’s silence in the face of submitted documentation cuts against it. (Id. at pp. 568, 570–571.) On causation, the decision is a useful reaffirmation that temporal proximity — an adverse action that “follows hard on the heels” of protected leave — can carry a retaliation claim past summary judgment even against a facially legitimate “abandonment” rationale. (Id. at p. 571.)

Key quotes

“[A]n employer shall not deny a CFRA leave, the need for which is an emergency or is otherwise unforeseeable, on the basis that the employee did not provide advance notice of the need for the leave, so long as the employee provided notice to the employer as soon as practicable.” (Bareno, supra, 7 Cal.App.5th at p. 563, quoting Cal. Code Regs., tit. 2, § 11091, subd. (a)(4).)

“The regulations thus expressly contemplate that an employee may be out on CFRA-protected leave prior to providing medical certification regarding that leave.” (Bareno, supra, 7 Cal.App.5th at p. 568.)

“There is a close temporal connection between Bareno’s absence for medical reasons and her effective termination by way of SDCCD’s interpretation of her absences as a ‘voluntary resignation’ …” (Bareno, supra, 7 Cal.App.5th at p. 571.)

Read the full opinion (Justia, official reporter text) →

Practice pointer

Open questions

Because the case arose on summary judgment and was remanded, Bareno resolves only that triable issues exist; it does not decide whether Bareno in fact gave reasonable notice or whether the District actually retaliated. (Bareno, supra, 7 Cal.App.5th at pp. 573–574.) The opinion leaves unsettled how far the employer’s “duty to inquire” extends — in particular, whether and when an employer must affirmatively reach out to an absent employee before treating silence as resignation, a question the court answered only on these facts. (Id. at pp. 567–568.) It also does not delineate the outer boundary of “as soon as practicable” notice where, unlike here, the employee makes no contemporaneous communication at all. And while the court invoked temporal proximity to send the retaliation claim to trial, it had no occasion to address how a strong, well-documented abandonment rationale might be rebutted at trial — the pretext inquiry the McDonnell Douglas framework reserves for the trier of fact. (Id. at pp. 559–560.)