Avila v. Continental Airlines, Inc.
Calling in sick, standing alone, does not put an employer on notice of the need for CFRA leave — but a hospitalization form submitted in a medical emergency can, and the burden then shifts to the employer to inquire and designate the leave.
Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237
Leave & Medical
CFRA
Notice of need for leave
Affirmed in part, reversed in part
In brief. An employee who was fired under a no-fault attendance policy after a hospitalization for acute pancreatitis sued under FEHA, the California Family Rights Act, and Tameny. The Court of Appeal affirmed summary judgment on the FEHA disability-discrimination and failure-to-accommodate claims because nothing the employee gave his decision-makers put them on notice of a disability; merely telling the employer he had been “sick” or hospitalized was not enough. But it reversed on the CFRA and Tameny claims, holding that while “calling in sick was, by itself, insufficient to put Continental on notice that he needed CFRA leave,” a hospital form showing inpatient care, submitted in a medical emergency, could constitute a “request” for CFRA-qualifying leave — and that the employer, not the employee, bears the burden to inquire further and designate the leave. (Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1242, 1255, 1257–1258.)
By Jonathan J. Delshad
Founder & Editor-in-Chief
Facts
Henry Avila worked for Chelsea Food Services, an airline-catering division of Continental Airlines, at Los Angeles International Airport from 1998 through January 2005. (Avila, supra, 165 Cal.App.4th at pp. 1243–1244.) Chelsea’s attendance policy provided that an employee would be terminated upon accruing seven or more “recordable” absences in any rolling 12-month period; approved short-term disability and approved family medical leave were “nonrecordable” only if the need had been prearranged and required documentation had been submitted and approved before the absence. (Id. at p. 1244.) A human-resources manager testified that absences due to unforeseen emergencies could later be excused, and that if a doctor certified an illness, only one absence would be recorded even for multiple days missed. (Ibid.) Avila had been terminated once before, in 2001, for violating the policy, then reinstated, and had been warned about his attendance on other occasions. (Ibid.)
In December 2004, Avila was hospitalized for acute pancreatitis and missed four days of work. (Avila, supra, 165 Cal.App.4th at p. 1244.) He testified that when he returned he provided two Kaiser Permanente “Documentation of Medical Impairment” forms establishing that he had been hospitalized; the December 19, 2004 form indicated he had been admitted on December 16 and discharged on December 19, and that he was unable to work for five days. (Id. at pp. 1244, 1247–1248.) Neither form named pancreatitis or any diagnosis, and neither imposed any going-forward work restriction. (Id. at p. 1248.) Avila testified he gave the forms to “the manager on duty,” though he could not recall to whom, and that he “[u]sually” left such excuses on the manager’s desk. (Id. at pp. 1248, 1255.) He told roughly “50 persons” — his “close friends” — that he had been sick, but did not discuss his pancreatitis with his supervisors. (Id. at pp. 1244, 1250.)
Avila was charged two recordable absences for the December illness and recuperation, bringing his total to six. (Avila, supra, 165 Cal.App.4th at p. 1244.) After he incurred another recordable absence in January 2005, Chelsea’s human-resources manager Daysi Bellamy determined on January 18, 2005 that Avila had reached seven absences in the preceding 12 months and decided to suspend and terminate him; the monthly attendance review on which she relied did not state the reasons for any absence. (Ibid.) The decision was approved by general manager Judy Tanes and a Houston human-resources manager, “neither of whom had any independent knowledge of plaintiff’s employment situation.” (Id. at pp. 1244–1245.) When he was suspended, Avila told assistant operations manager Leonard Johnson that he had been “sick.” (Id. at p. 1245.) Only after being told on January 25 that he was discharged did Avila tell Bellamy and Johnson he had been hospitalized with pancreatitis; the next day he and his nephew hand-delivered a letter to Tanes explaining the illness, attaching medical records, and seeking reinstatement. (Ibid.) A divided company appeal board upheld the termination. (Ibid.)
Procedural history
Avila sued in October 2005. By late 2006 the surviving claims were for (1) FEHA disability discrimination, (2) FEHA failure to reasonably accommodate, (3) wrongful termination in retaliation for exercising CFRA rights, and (4) a Tameny claim for wrongful termination in violation of public policy. (Avila, supra, 165 Cal.App.4th at p. 1245.) The trial court granted Continental summary judgment, reasoning that Continental had no knowledge of Avila’s disability and so did not discharge him because of it; that he had not requested accommodation; that his CFRA claim failed because he “did not request leave or an accommodation under CFRA”; and that the Tameny claim fell with the statutory claims on which it was predicated. (Ibid.) Judgment was entered for Continental, and Avila appealed. (Ibid.)
Issue
The appeal presented two distinct notice questions arising from the same conduct. For FEHA, whether Avila raised a triable issue that the decision-makers, Bellamy and Johnson, knew of his disability when they decided to discharge him. (Avila, supra, 165 Cal.App.4th at pp. 1246–1247.) For CFRA, whether a reasonable trier of fact could find that Avila’s calling in sick and submitting the Kaiser hospitalization forms constituted a “request” sufficient to put Continental on notice that he needed CFRA-qualifying leave for a serious health condition — and, if so, whether the requisite causal connection existed even though the decision-makers did not subjectively know the absences were protected. (Id. at pp. 1254–1255, 1258–1261.)
Holding
Affirmed in part, reversed in part, and remanded. The court affirmed summary adjudication of the FEHA discrimination and failure-to-accommodate claims because the materials Avila supplied — that he had been “sick,” hospitalized, or had “called in sick” — were insufficient to put his decision-makers on notice of a qualifying disability, and a decision-maker “must be aware of disability when the adverse employment decision is made.” (Avila, supra, 165 Cal.App.4th at pp. 1248–1252.) The court reversed summary adjudication of the CFRA claim: although “calling in sick was, by itself, insufficient to put Continental on notice that he needed CFRA leave for a serious health condition,” the December 19 Kaiser form showing inpatient hospitalization, submitted as soon as practicable after a medical emergency, raised a triable issue whether Avila had made a “request” for CFRA-qualifying leave, shifting to the employer the burden to inquire and designate. (Id. at pp. 1255, 1257–1258.) Because the employer admitted it discharged him because of the very absences at issue, the causal connection could be established without proof that any manager subjectively knew the absences were protected. (Id. at pp. 1258–1261.) The Tameny claim was reinstated as well, and Continental’s motion for sanctions was denied. (Id. at pp. 1261–1262.)
Reasoning
1. FEHA — notice of a “disability,” not mere illness, is the touchstone. Disparate-treatment liability requires that the employer harbor discriminatory intent, and “[a]n adverse employment decision cannot be made ‘because of’ a disability, when the disability is not known to the employer.” (Avila, supra, 165 Cal.App.4th at pp. 1246–1247.) Knowledge may be inferred, but only “when the fact of disability is the only reasonable interpretation of the known facts”; “[v]ague or conclusory statements revealing an unspecified incapacity” do not suffice. (Id. at pp. 1248–1249.) The Kaiser forms communicated only that Avila could not work on four days and had been hospitalized for three, without identifying pancreatitis or any qualifying condition; informing an employer “merely that plaintiff had been hospitalized was not sufficient to put Continental on notice that plaintiff was suffering from a qualifying disability.” (Id. at p. 1249.) “Not every illness qualifies as [a] disability,” and that Avila was disabled “was not ‘the only reasonable interpretation of’” the forms. (Ibid.)
2. FEHA — coworker knowledge and post-termination disclosures do not bridge the gap. Avila’s having told some “50” coworkers he was “sick” did not raise a triable issue, because he produced no evidence that any of them relayed — or had a duty to relay — that information to Bellamy or Johnson, or that any was a “substantial contributor” to the discharge decision. (Avila, supra, 165 Cal.App.4th at pp. 1250–1251.) And evidence that he disclosed his pancreatitis after being told he was discharged was “irrelevant,” because “[e]vidence that a decision maker learned of a plaintiff’s disability after deciding to take adverse employment action is not probative” of knowledge at the time of decision. (Id. at pp. 1251–1252.) The failure-to-accommodate claim failed for the same reason: the duty to accommodate runs only to a “known” disability, the employee bears the burden of notice, and evidence that Avila “called in sick” — without more about to whom he spoke or what he said — could not show Continental was on notice that he needed accommodation. (Id. at pp. 1252–1253.)
3. CFRA — “calling in sick” is not enough, but a hospitalization form may be. CFRA makes it unlawful to discharge an employee because of the exercise of the right to take up to 12 workweeks of leave for the employee’s “own serious health condition,” which expressly includes a condition involving “[i]npatient care in a hospital.” (Avila, supra, 165 Cal.App.4th at pp. 1253–1254, quoting Gov. Code, § 12945.2, subds. (a), (c)(8).) The court agreed with Continental that “calling in sick was, by itself, insufficient to put Continental on notice that he needed CFRA leave for a serious health condition,” citing Gibbs v. American Airlines, Inc. (1999) 74 Cal.App.4th 1, 9 and Stevens v. Department of Corrections (2003) 107 Cal.App.4th 285, 292. (Id. at p. 1255.) But the December 19 Kaiser form was different: 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 of the timing and duration of the necessary leave,” and “may constitute a ‘request’ for leave under CFRA.” (Id. at p. 1257.) Whether notice is sufficient under CFRA is a question of fact. (Id. at p. 1255.)
4. CFRA — the employer’s burden to inquire and designate. The court first rejected the trial court’s view that Avila’s testimony about delivering the forms was too “equivocal” to be substantial evidence; he testified he was “positive” he gave them to the manager on duty, and any uncertainty went only to whom he handed them — a credibility question for trial. (Avila, supra, 165 Cal.App.4th at pp. 1255–1256.) Substantively, because Avila need not invoke CFRA by name and his need was unforeseeable, a trier of fact could find he gave notice “as soon as practicable.” (Id. at pp. 1256–1257.) Critically, once an employee provides information suggesting a serious health condition, the regulations place the burden on the employer to “inquire further” and “to designate leave, paid or unpaid, as CFRA or CFRA/FMLA qualifying.” (Id. at p. 1257, quoting Cal. Code Regs., tit. 2, § 7297.4, subd. (a)(1) & (a)(1)(A).) Thus “an employer should not be able to terminate for absences a worker known to be sick or injured without first determining if that employee qualifies for and wants leave.” (Id. at pp. 1257–1258.)
5. CFRA — causation does not require the decision-maker to know the leave was “protected.” Continental argued there could be no causal link because Bellamy and Johnson did not personally know of any “protected conduct or status.” (Avila, supra, 165 Cal.App.4th at p. 1258.) The court disagreed: the “because of” language requires only a causal connection between the protected conduct — the absences — and the adverse action; “[t]he decision maker must have knowledge of the protected conduct — the absences. Knowledge that the conduct was protected is not required.” (Id. at pp. 1258–1259.) Requiring a plaintiff to prove that a manager subjectively knew the absences were legally protected would force the plaintiff to negate the employer’s good faith and would “encourage employers to have their managers remain ignorant of both the law and the facts.” (Id. at pp. 1259–1260.) Drawing on Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 864, 885 and federal FMLA authority, the court held that once a request has been submitted, “the employer is charged with knowledge” that the absences are protected and may not discharge the employee because of them. (Id. at pp. 1260–1261.) “Unlike in the FEHA situation,” no showing of a manager’s subjective knowledge that the leave was protected is required. (Id. at p. 1261.)
6. Tameny and sanctions. Because triable issues precluded summary adjudication of the CFRA claim, they likewise precluded adjudication of the Tameny public-policy claim built upon it; an employee “may state a claim under California law for wrongful termination in violation of the public policy within the CFRA.” (Avila, supra, 165 Cal.App.4th at p. 1261.) The court denied Continental’s sanctions motion: even the unsuccessful FEHA appeal was not frivolous, given the underdeveloped state of California law on when a decision-maker is deemed to know of a disability, and the CFRA and Tameny portions of the appeal were meritorious. (Id. at pp. 1261–1262.)
Significance
Avila is a foundational notice case precisely because it decides the FEHA and CFRA notice questions in opposite directions on the same record, drawing a sharp doctrinal line between the two statutes. On the FEHA side, it reaffirms that the employer must be on notice of a disability — a qualifying physiological condition affecting a major life activity — and that telling the employer one was “sick” or even hospitalized does not supply that notice, nor do coworker conversations or post-decision disclosures. On the CFRA side, it confirms that the threshold for triggering leave is lower and structurally different: an unforeseeable hospitalization, evidenced by a routine hospital form, can suffice to make the employer “aware that the employee needs CFRA-qualifying leave,” after which the regulatory burden to inquire and designate falls on the employer, not the worker. The case is most frequently cited for two propositions practitioners must keep distinct: first, that “calling in sick,” without more, is inadequate notice under CFRA; and second, that a CFRA retaliation plaintiff need not prove the decision-maker knew the absences were legally protected — knowledge of the absences themselves, coupled with a qualifying request, is enough. The decision thus operationalizes CFRA’s employer-inquiry regime as a meaningful constraint on the mechanical application of no-fault attendance policies.
Key quotes
“That plaintiff called in sick was, by itself, insufficient to put Continental on notice that he needed CFRA leave for a serious health condition.” (Avila, supra, 165 Cal.App.4th at p. 1255.)
“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 thus may constitute a ‘request’ for leave under CFRA.” (Avila, supra, 165 Cal.App.4th at p. 1257.)
“The decision maker must have knowledge of the protected conduct — the absences. Knowledge that the conduct was protected is not required.” (Avila, supra, 165 Cal.App.4th at pp. 1258–1259.)
Practice pointer
When a CFRA-leave claim turns on notice, separate it cleanly from any FEHA disability theory — Avila shows the two can come out differently on identical facts. For the plaintiff: marshal anything beyond a bare “sick” call. A hospital admission form, an ER discharge slip, or any document reflecting inpatient care or continuing treatment can satisfy CFRA’s notice threshold even if it never names a diagnosis, because the absence itself “suggests the necessity of a leave.” Then press the employer’s affirmative duty under California Code of Regulations, title 2, section 7297.4 to inquire and to designate the leave; an employer that terminates a worker it knows to be hospitalized without making that inquiry has not discharged its burden. And on causation, do not let the defense reframe the issue as the decision-maker’s subjective awareness that the leave was “protected” — under Avila, knowledge of the absences plus a qualifying request suffices. For the defense: where the only notice is a generic “I was sick,” Gibbs and Avila support summary judgment; but a documented hospitalization in the file is a litigation tripwire that should trigger an inquiry-and-designation protocol before any attendance-based termination.
Open questions
The majority expressly declined to resolve whether an employer’s good-faith mistaken belief that its conduct was lawful is a defense to a CFRA retaliation claim, noting the federal authorities split on the analogous FMLA question and that “[t]hat issue is not before us.” (Avila, supra, 165 Cal.App.4th at p. 1260 & fn. 12.) The opinion also leaves the line-drawing to the jury: because “[w]hether notice is sufficient under CFRA is a question of fact,” Avila does not tell employers precisely which documents cross the threshold short of inpatient hospitalization — a routine doctor’s note for outpatient care, for instance, may or may not suffice depending on the circumstances. (Id. at p. 1255.) Finally, Justice Kriegler’s concurrence and dissent frames the unresolved tension at the heart of the case: he would have affirmed in full, reasoning that Avila admitted in deposition he never requested leave and that the decision-makers had no knowledge of his hospitalization, so “[w]hatever obligation an employer has under the regulation was simply never triggered.” (Id. at pp. 1263–1266 (conc. & dis. opn. of Kriegler, J.).) How far the employer’s duty to inquire reaches when the employee never affirmatively asks for leave remains the decision’s most contestable frontier.