Faust v. California Portland Cement Co.

Facts

The Moore-Brown-Roberti Family Rights Act — the CFRA, Government Code section 12945.2 — sits inside the Fair Employment and Housing Act and generally makes it an unlawful employment practice for an employer of 50 or more persons to refuse an eligible employee’s request for up to 12 workweeks of family care and medical leave in a 12-month period. (Faust, supra, 150 Cal.App.4th at p. 878, citing § 12945.2, subds. (a), (c)(2)(A).) As the court framed the case at the outset: “The gravamen of this action is Faust’s claim he was terminated in violation of his right to medical leave under California’s Moore-Brown-Roberti Family Rights Act.” (Id. at p. 868.) Two regulatory obligations of the employer — not the employee — turned out to control the appeal: the duty to post or give employees notice of the right to request CFRA leave (Cal. Code Regs., tit. 2, former § 7297.9), and the rule that an employee’s request need not mention the statute at all (Cal. Code Regs., tit. 2, former § 7297.4, subd. (a)(1)). (Id. at pp. 868, 879–880.)

Michael Faust had worked for California Portland Cement Company since 1977; by 2003 he was a union-represented lube specialist at the company’s Mojave plant, in a garage supervised by Hank Schrader. (Faust, supra, 150 Cal.App.4th at p. 869.) On Friday, February 21, 2003, plant manager Bruce Shafer received an e-mail from Faust reporting that various unnamed garage employees had engaged in internal theft and misconduct; Shafer showed it to the plant’s human resources manager, Crystal Andersen. (Ibid.) On February 26, after meeting with Shafer, Schrader went back to the garage and told the crew about Faust’s e-mail. (Ibid.)

The next day — February 27, 2003 — was Faust’s last active day at work. The coworker who was supposed to drive him to the worksite did not pick him up, and at lunch told Faust that Schrader had disclosed the theft e-mail and warned that everyone should “watch their backs.” (Faust, supra, 150 Cal.App.4th at p. 869.) Faust began experiencing shortness of breath, confusion, panic attacks and feelings of despair; the garage would not answer his radio calls, and when he walked in he got the “cold shoulder.” (Id. at pp. 869–870.) Fearing for his safety — he was driving a large fuel truck into remote areas of the quarry with no radio support — he filled out a time-off slip. Schrader angrily denied it, telling Faust he would get no time off until Schrader was satisfied Faust had his job duties under control. (Id. at pp. 869–870.) After another episode of extreme anxiety in the quarry, Faust called a supervisor, who agreed Faust should leave and escorted him to the front office. He never returned to work. (Id. at p. 870.)

Five days later Faust began a 30-day psychiatric program at Kaiser Permanente; on March 8 he filed a workers’ compensation claim, and his attorney advised the company of it. (Faust, supra, 150 Cal.App.4th at p. 870.) Kaiser documented medical impairment from March 4 through April 3, 2003 — “anxiety/stress/phobic disorders, depressive, Bipolar/Mood disorders” — but its psychiatric benefit ended after 30 days regardless of treatment status, and Faust’s psychiatrist told him to stay away from stressful situations. (Ibid.) By mid-March Faust was also suffering severe lower back pain — walking, in the record’s words, like a “question mark” — and was under chiropractic care. (Ibid.) On March 31, 2003, his chiropractor, Dr. Andalib, issued a medical certification recommending physiotherapy, chiropractic therapy and rest, and stating “[t]he patient is unable to perform regular job duties from 3-31-03 to 5-1-03.” Faust delivered it to the company the next day. (Ibid.)

What followed was a one-way conversation. On April 1, Andersen left a message on Faust’s home answering machine saying she had problems with the chiropractic certificate and wanted to speak with him right away. The same day or the next, Faust’s wife left a voice message telling Andersen she could speak with Mrs. Faust, the chiropractor, or the workers’ compensation attorney; on April 4 or 5 she left a second message repeating the point and explaining that Faust was “too stressed out” to speak with Andersen himself. (Faust, supra, 150 Cal.App.4th at pp. 870–871.) “Andersen did not contact any of the three individuals designated by Faust.” (Id. at p. 871.) Instead, on April 7 she left another message insisting on speaking with Faust directly, and on April 8 sent a letter faulting the certificate because “the slip you dropped off last Tuesday, was from a Chiropractor (not a Physician/Medical Doctor),” and concluding: “[t]he paperwork is inappropriate (not a physician’s slip) as well as it is incomplete (returning you to some form of modified work, instead of requesting an absence).” (Ibid.) Faust’s workers’ compensation attorney advised him that the company was required to direct any concerns about the work-status report to the attorney or the doctor, and directed him not to respond; Faust also believed, from prior dealings, that the company’s human resources office routinely contacted employees’ doctors for clarification. (Id. at pp. 871–872.) Andersen never informed Faust of the availability of medical leave under the CFRA or the FMLA, and Faust did not know those protections existed. (Id. at p. 871.)

On April 15, 2003, Andersen sent a final letter terminating Faust’s employment on the stated ground that “the paperwork you submitted on 4/1/0[3] was insufficient to sustain an approved absence from work.” (Faust, supra, 150 Cal.App.4th at p. 872.) As the court emphasized: “Thus, Faust was terminated less than seven weeks after his last day on the job” — well inside the CFRA’s 12-workweek entitlement, and while he was still off work pursuant to Dr. Andalib’s report. (Id. at pp. 872, 881.)

Procedural history

After exhausting with the Department of Fair Employment and Housing, Faust sued in September 2004, pleading seven causes of action: disability discrimination under the FEHA (Gov. Code, § 12940); disability harassment; retaliation; wrongful termination in violation of public policy; violation of the CFRA; discrimination because of exercise of CFRA rights; and unfair competition (Bus. & Prof. Code, § 17200 et seq.). (Faust, supra, 150 Cal.App.4th at p. 872.) Portland moved for summary judgment or summary adjudication, arguing among other things that Faust’s chiropractor was not a certified health care provider, that Faust never gave proper notice of a CFRA-qualifying leave, and that he was properly terminated for refusing to cooperate with good faith requests for additional medical information. (Id. at pp. 872–873.)

The trial court granted the motion in full on January 9, 2006, finding in essence that Portland duly terminated Faust for insubordination in taking an unauthorized leave of absence and failing to respond personally to Andersen’s inquiries. (Faust, supra, 150 Cal.App.4th at pp. 873–874.) On the discrimination claim it ruled that “Plaintiff points to no evidence to raise a triable issue Defendant’s proffered reason for his termination (insubordination) was a pretext for unlawful disability discrimination,” and it disposed of the CFRA causes of action on the same ground — that the employer “has established a legitimate, non-discriminatory reason” for the discharge. (Id. at pp. 875–876.) Critically, the ruling never addressed Faust’s contention that Portland had failed to advise him of his CFRA eligibility, or the consequences of that failure. (Id. at p. 874.) Faust appealed everything except the unfair competition ruling, and at oral argument properly conceded the disability-harassment count — the court observing that “harassment that results in disability is very different from harassment of an employee because of the employee’s disability.” (Id. at p. 876, fn. 4.)

The Court of Appeal reversed as to the first, third, fourth, fifth and sixth causes of action — disability discrimination, retaliation, wrongful termination, and both CFRA counts — and otherwise affirmed, awarding Faust his costs on appeal. (Faust, supra, 150 Cal.App.4th at p. 888.) Rehearing was denied May 30, 2007, and the Supreme Court denied a subsequent request in the case on August 8, 2007. (2007 Cal. LEXIS 8616.)

Issue

Three questions drove the appeal. First, what analytical framework governs a CFRA interference claim on summary judgment — does the McDonnell Douglas burden-shifting test apply, so that a “legitimate, nondiscriminatory reason” defeats the claim, or is the only question whether the employer denied a statutory entitlement? (Faust, supra, 150 Cal.App.4th at pp. 876, 879.) Second, could Portland obtain summary judgment on the CFRA claims without showing it had complied with an employer’s obligations — the duty to give notice of CFRA rights, and the duty to inquire further once an employee gives verbal notice of a need for qualifying leave? (Id. at pp. 879–881.) Third, did triable issues remain on the FEHA disability discrimination, retaliation, and wrongful termination counts where the employer’s sole proffered reason was Faust’s “insubordination” in failing to respond personally to its inquiries. (Id. at pp. 885–887.)

Holding

Reasoning

The summary judgment lens. The court began from the demanding standard governing review: “the evidence must be incapable of supporting a judgment for the losing party in order to validate the summary judgment.” (Faust, supra, 150 Cal.App.4th at p. 877, quoting Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 838.) A material issue may not be resolved on inferences if those inferences are contradicted by others — the court may not weigh them as if it were the trier of fact. (Id. at pp. 877–878, citing Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 856.) That framing mattered, because the whole case turned on whose refusal to communicate a jury would credit.

Interference claims do not run through McDonnell Douglas. Taking the CFRA counts first, the court adopted the Ninth Circuit’s construction of the parallel federal statute: an interference claim under the FMLA — “and thus the CFRA” — “does not involve the burden-shifting analysis articulated by the United States Supreme Court in McDonnell Douglas.” (Faust, supra, 150 Cal.App.4th at p. 879.) Quoting Bachelder, it held “there is no room for a McDonnell Douglas type of pretext analysis when evaluating an ‘interference’ claim under this statute”; a violation “simply requires” a showing that the employer denied the employee’s entitlement to protected leave. (Ibid.) The trial court had therefore applied the wrong legal standard when it disposed of the CFRA counts by crediting Portland’s “legitimate, non-discriminatory reason.” (Id. at pp. 873–874, 878–879.)

The employer’s notice obligations come first. The court then set out the regulatory architecture Portland had ignored. Employers must give notice of the right to request CFRA leave (Cal. Code Regs., tit. 2, former § 7297.9, subd. (a)); they must give “reasonable advance notice” of any notice requirements they adopt; and the regulation attaches a sanction with teeth — failure to give or post the required notice “shall preclude the employer from taking any adverse action against the employee” for failing to furnish advance notice of a need for leave. (Faust, supra, 150 Cal.App.4th at pp. 879–880, quoting Cal. Code Regs., tit. 2, former § 7297.4, subd. (a)(5).) Yet “Portland’s papers fail to address the threshold issue of an employer’s obligations under section 12945.2 and the implementing regulations,” and “there is nothing among the 207 facts in the separate statements of undisputed facts to indicate Portland posted notice or gave notice to Faust of his rights under the CFRA.” (Id. at p. 881.) Andersen admitted she never informed Faust of any right to leave he may have had. (Id. at p. 868.)

No magic words: verbal notice suffices, and the duty to clarify falls on the employer. The regulation on employee requests supplied the second pillar. An employee must give at least verbal notice sufficient to make the employer aware of the need for CFRA-qualifying leave, but — in language the court italicized — “The employee need not expressly assert rights under CFRA or FMLA, or even mention CFRA or FMLA, to meet the notice requirement.” (Faust, supra, 150 Cal.App.4th at p. 879, quoting Cal. Code Regs., tit. 2, former § 7297.4, subd. (a)(1).) The employer, in turn, should inquire further if it needs more information to determine whether CFRA leave is being sought. (Id. at pp. 879–880.) Here the point was effectively conceded: in response to request for admission No. 24, Portland admitted that Faust had given verbal notice sufficient to make it aware he needed leave pursuant to the California Family Rights Act — an admission it did not qualify, despite its later attempt on appeal to limit it to the earlier Kaiser leave — and it separately admitted that Dr. Andalib’s work status report “contains the stated reason for CFRA leave.” (Id. at pp. 868, 881–882 & fn. 9.)

The “insubordination” theory cut both ways. Portland’s remaining argument was that Faust unreasonably refused to respond to Andersen’s follow-up inquiries. The court held that “the circumstances of this case also support a contrary inference, namely, that Portland unreasonably failed to communicate with Faust.” (Faust, supra, 150 Cal.App.4th at p. 882.) Faust’s psychiatrist had told him to avoid stressful situations; he felt “too stressed out” to speak with Andersen; and his wife twice gave Andersen three authorized channels — the wife, the chiropractor, the workers’ compensation attorney. Andersen pursued none of them, and even granting privacy concerns about calling the doctor, “nothing precluded Andersen, at a minimum, from contacting Faust’s attorney.” (Ibid.) The employer’s insistence that only a personal response would do fared no better under the federal spokesperson regulation it invoked (29 C.F.R. § 825.303(b) (2007)): Faust “presented evidence he was unable personally to respond to Andersen, but that three other individuals were available to respond to Andersen’s queries.” (Id. at p. 883.) The conclusion: “The record also supports a conflicting inference, namely, that it was Portland which unreasonably refused to communicate with any of Faust’s representatives. That issue is for the trier of fact.” (Ibid.)

The chiropractor’s certification could not be rejected “out of hand.” Portland argued Dr. Andalib was no qualified health care provider because she had not taken X-rays demonstrating a subluxation. (Faust, supra, 150 Cal.App.4th at pp. 883–884; see § 12945.2, former subd. (c)(6)(B); 29 C.F.R. § 825.118(b)(1) (2007) [chiropractor qualifies as to “treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by X-ray to exist”].) The court gave three answers. There was no evidence Portland ever advised Faust of the certification requirements it had adopted. (Id. at p. 884.) Once Faust submitted the note stating he could not perform regular job duties, the company was on notice the absence might be CFRA-covered, and “it was obligated to inquire further to determine whether the absence was likely to qualify for CFRA protection.” (Ibid., citing Bachelder, supra, 259 F.3d at p. 1131.) And on this record the disqualification premise failed on its own terms: Dr. Andalib testified she had manipulated Faust’s spine and detected a subluxation, yet “[i]nstead of seeking a certification from Dr. Andalib of Faust’s back condition, Andersen rejected the note from Dr. Andalib out of hand,” wrongly telling Faust a chiropractor’s slip was categorically “inappropriate.” (Ibid.) As the court corrected her: “a physician is not the only health care provider who can certify a serious health condition under the CFRA.” (Ibid.) The statute, moreover, gives a doubting employer its remedy — it “may require, at the employer’s expense,” a second opinion from a provider it designates. (Id. at p. 880, quoting § 12945.2, former subd. (k)(3)(A).) Portland never used it.

Retaliation: the prima facie case stood, and the “legitimate reason” was itself triable. Drawing the elements from Dudley v. Department of Transportation (2001) 90 Cal.App.4th 255, 261, and the FEHA framework of Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042, the court held Faust “made out a prima facie case by presenting evidence that he was entitled to leave under the CFRA, he availed himself of that right, and was terminated for taking the leave to which he was entitled.” (Faust, supra, 150 Cal.App.4th at p. 885.) Portland’s proffered nonretaliatory reason — insubordination — could not resolve the claim as a matter of law, because “Portland’s refusal to communicate with any of Faust’s representatives, particularly his workers’ compensation attorney, undermines Portland’s contention that, as a matter of law, it legitimately fired Faust for ignoring Andersen’s inquiries.” (Ibid.)

Wrongful termination and disability discrimination followed. Because the CFRA’s public policy satisfies the Gantt/Stevenson requirements, viable CFRA claims necessarily carried a tortious wrongful discharge claim with them. (Faust, supra, 150 Cal.App.4th at p. 886, citing Nelson v. United Technologies (1999) 74 Cal.App.4th 597, 609.) The court was careful about the theory, however: under Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, Faust’s alternative theory — that he was fired for reporting coworker theft to his employer — served only the employer’s private interest and could not support the tort. (Id. at p. 886, fn. 12.) On disability discrimination under section 12940, subdivision (a), the court applied the familiar burden-shifting elements of Deschene v. Pinole Point Steel Co. (1999) 76 Cal.App.4th 33, 44, and found the employer-knowledge element satisfied by Dr. Andalib’s report: an employer “need only know the underlying facts, not the legal significance of those facts.” (Id. at pp. 886–887, quoting Schmidt v. Safeway Inc. (D.Or. 1994) 864 F.Supp. 991, 997.) Dr. Andalib had recommended a leave of absence through May 1; Portland instead discharged him on the already-suspect “failure to communicate” rationale — and its complaint that Faust never properly designated a spokesperson was, the court noted, difficult to reconcile with its simultaneous argument that Faust was not entitled to designate his wife or attorney at all. (Id. at p. 887.)

Significance

Faust is the leading California authority operationalizing the CFRA’s notice architecture at summary judgment, and it is best understood as three rules in one opinion. First, it domesticated Bachelder: CFRA interference claims stand outside the McDonnell Douglas framework, so an employer cannot summary-judge its way out of an entitlement violation by articulating a “legitimate, nondiscriminatory business reason.” (Faust, supra, 150 Cal.App.4th at p. 879.) That distinction — interference versus retaliation, entitlement versus motive — remains the first analytical fork in every CFRA case. Second, it enforced the no-magic-words rule: an employee who supplies enough information to signal a need for qualifying leave has done his part, and the burden of clarification shifts to the employer, whose remedy for doubt is inquiry and a second medical opinion, not rejection “out of hand.” (Id. at pp. 879–880, 884.) Third, it made the employer’s own notice defaults case-dispositive: an employer that never told its workforce about CFRA rights is poorly positioned to fire an employee for imperfect compliance with leave paperwork. (Id. at pp. 880–881.)

The decision’s afterlife has been substantial — it is a staple citation in CFRA interference and retaliation oppositions — and its regulatory footing has only strengthened: the former title 2 regulations the court applied (§§ 7297.4, 7297.9) were renumbered and carried forward, with the no-magic-words principle and the employer inquiry duty intact. Where the employee-side bar most often deploys Faust is exactly where it arose: an employer that treats a medically absent employee’s imperfect communication as “insubordination” and terminates mid-leave. The opinion also complements the California Supreme Court’s later CFRA decision in Richey v. AutoNation, Inc. (2015) 60 Cal.4th 909 — which addressed CFRA reinstatement rights in arbitration — as one of the small set of controlling California texts on how leave rights actually get enforced. Finally, Faust’s retaliation discussion quietly confirms that taking CFRA leave is itself protected activity for prima facie purposes, with the elements borrowed from Dudley and aligned with Yanowitz’s FEHA framework. (Id. at p. 885.)

Key quotes

“The employee need not expressly assert rights under CFRA or FMLA, or even mention CFRA or FMLA, to meet the notice requirement.” (Faust, supra, 150 Cal.App.4th at p. 879, quoting Cal. Code Regs., tit. 2, former § 7297.4, subd. (a)(1).)

“[T]here is no room for a McDonnell Douglas type of pretext analysis when evaluating an ‘interference’ claim under this statute.” (Faust, supra, 150 Cal.App.4th at p. 879, quoting Bachelder v. America West Airlines, Inc. (9th Cir. 2001) 259 F.3d 1112, 1131.)

“The record also supports a conflicting inference, namely, that it was Portland which unreasonably refused to communicate with any of Faust’s representatives. That issue is for the trier of fact.” (Faust, supra, 150 Cal.App.4th at p. 883.)

“Here, Faust made out a prima facie case by presenting evidence that he was entitled to leave under the CFRA, he availed himself of that right, and was terminated for taking the leave to which he was entitled.” (Faust, supra, 150 Cal.App.4th at p. 885.)

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Practice pointer

Open questions

Faust reversed a summary judgment; it decided what a jury could find, not what one must. The court did not hold that Faust’s back condition was a serious health condition, that Dr. Andalib was a qualified certifying provider — only that she “was not necessarily precluded from certifying a serious health condition” (Faust, supra, 150 Cal.App.4th at p. 884) — or that Portland in fact retaliated; all of that returned to the trier of fact. It likewise left unresolved how the analysis would run for an employer that had posted the required notices and adopted clear certification procedures: the opinion’s preclusion holding rests on the absence of any evidence of employer compliance, and footnote 10 pointedly contrasts Marchisheck v. San Mateo County (9th Cir. 1999) 199 F.3d 1068, where the employer’s posted notices defeated a waiver argument. (Id. at p. 884, fn. 10.) The court also had no occasion to define how far a designated spokesperson can carry an employee’s communication obligations where the employee is not medically unable to respond — it held only that on this record the incapacity evidence made the question triable. (Id. at p. 883.) Finally, because the appeal was resolved on the employer’s failure to address its threshold obligations, the opinion does not calibrate what quantum of employee detail converts an absence into presumptively protected leave where the employer promptly and properly inquires — the boundary later disputes continue to litigate.