Lonicki v. Sutter Health Central

Facts

The Moore-Brown-Roberti Family Rights Act (CFRA) (Gov. Code, §§ 12945.1, 12945.2) entitles an eligible full-time employee to up to 12 weeks of unpaid family-care and medical leave, including when “an employee’s own serious health condition … makes the employee unable to perform the functions of the position of that employee.” (§ 12945.2, subd. (c)(3)(C); Lonicki v. Sutter Health Central (2008) 43 Cal.4th 201, 205, 208.) The statute is modeled on the federal Family and Medical Leave Act of 1993 (FMLA) (29 U.S.C. §§ 2601–2654), and “[t]he language of the CFRA provisions at issue here is virtually identical to the language of their counterparts in the FMLA.” (Lonicki, supra, 43 Cal.4th at p. 209.)

Sutter Health Central hired Antonina Lonicki in 1989 to work in housekeeping at its Roseville hospital; in 1993 she became a certified technician in the sterile-processing department, where “[h]er work performance was good and her attendance was excellent.” (Lonicki, supra, 43 Cal.4th at p. 206.) When the hospital became a level II trauma center in June 1997, Lonicki’s workload and stress increased, and a 1998 change in supervisors — particularly the conduct of a new supervisor, Pat Curtis — heightened that stress, prompting her to consult a doctor. (Ibid.)

On July 26, 1999, Curtis reassigned Lonicki’s shift and denied her vacation request; she went home in tears and, after speaking with her union representative, reported she was too upset to work. (Lonicki, supra, 43 Cal.4th at p. 206.) A family nurse practitioner gave her a note for a one-month medical leave and referred her to a therapist, and she submitted the note and a leave-request form to Curtis. (Ibid.) At the employer’s direction, Lonicki saw Dr. Michael Cohen, an occupational-health physician chosen by Sutter; after “talking to plaintiff for two or three minutes,” Dr. Cohen reported she could return to work without restrictions. (Id. at p. 207.) Director Steve Jatala then ordered her back to work or face dismissal. (Ibid.)

Lonicki’s primary physician referred her to a psychologist, whom she saw weekly, and on August 26, 1999, a psychiatrist, Dr. Frank Capobianco, wrote that she was “disabled by major depression,” that her symptoms were “work related,” and that her leave should extend to September 26. (Lonicki, supra, 43 Cal.4th at p. 207.) When she delivered that note, she was told she had already been discharged for failing to appear on August 23 and 24. (Ibid.) Critically — and the fact that drives the case — during the very period for which she sought leave, Lonicki held a part-time job at a different hospital, Kaiser, performing duties she conceded were “[a]bout [the] same,” though “a lot slower” because Kaiser, not being a trauma hospital, did not get “bad cases.” (Id. at pp. 207–208, 214.)

Procedural history

After obtaining a right-to-sue letter, Lonicki sued Sutter for violating the CFRA by firing her and by failing to follow CFRA procedures when it questioned the validity of her leave. (Lonicki, supra, 43 Cal.4th at p. 207.) Sutter moved for summary judgment, arguing that her concurrent part-time work at Kaiser — substantially similar to her Sutter job — showed she lacked a “serious health condition” rendering her “unable to perform the functions” of her full-time position, so that she did not qualify for leave and her discharge was lawful. (Id. at pp. 207–208.) Lonicki countered that capacity was a disputed fact and that Sutter’s failure to submit the medical dispute to a jointly chosen third health-care provider estopped it from contesting her condition. (Id. at p. 208.)

The trial court rejected the estoppel argument and agreed with Sutter that the Kaiser job “showed that she could perform the essential functions of her job,” granting summary judgment. (Lonicki, supra, 43 Cal.4th at p. 208.) The Court of Appeal, Third District, affirmed, reasoning that the CFRA requires leave only where the employee is unable to perform her essential job functions “generally, rather than for a specific employer.” (Ibid.) The Supreme Court granted review. (Ibid.)

Issue

The Court framed two questions. First, does an employer’s failure to invoke the CFRA’s dispute-resolution mechanism — having a health-care provider jointly chosen by the parties determine the employee’s entitlement to leave — bar the employer from later claiming that the employee did not have a serious health condition and was capable of performing her job? (Lonicki, supra, 43 Cal.4th at p. 205.) Second, if a full-time employee, during the period for which leave was sought, “continued to perform a similar job for another employer on a part-time basis, does that conclusively establish the ability to do the job for the original employer?” (Ibid.)

Holding

Reasoning

1. Standard of review and statutory architecture. Reviewing the summary judgment de novo and liberally construing the evidence in Lonicki’s favor (Lonicki, supra, 43 Cal.4th at p. 206), the Court laid out the CFRA framework: leave of up to 12 weeks for, among other grounds, an employee’s “own serious health condition … [that] makes the employee unable to perform the functions of the position of that employee” (§ 12945.2, subd. (c)(3)(C)); a definition of “serious health condition” keyed to inpatient care or continuing treatment (id., subd. (c)(8)); an employer’s right to require a certification that “shall be sufficient” if it states the condition’s onset, probable duration, and the employee’s inability to perform the position’s functions (id., subd. (k)(1)); and the optional second- and third-opinion procedure, the third opinion being “binding on the employer and the employee” (id., subd. (k)(3)(A), (C), (D)). (Lonicki, supra, 43 Cal.4th at pp. 208–209.)

2. “May” is permissive: the dispute-resolution procedure is optional. On the estoppel question, the Court hewed to the statutory text. Subdivision (k)(3)(C) says the employer “may” obtain a third opinion; it neither requires that step nor declares that an employer who skips it is “barred, in litigation with the employee, from claiming that the employee did not suffer from a serious health condition making the employee unable to work.” (Lonicki, supra, 43 Cal.4th at p. 210.) Invoking the Government Code’s own interpretive rule that “‘Shall’ is mandatory and ‘may’ is permissive” (§ 14), the Court read the provision as offering the employer “a choice.” (Lonicki, supra, 43 Cal.4th at p. 210.) It found support in Rhoads v. F.D.I.C. (4th Cir. 2001) 257 F.3d 373, 385–386, construing the identical FMLA language, and in decisions of the Sixth and Eighth Circuits. (Lonicki, supra, 43 Cal.4th at pp. 211–212.)

3. The certification provision limits information, not remedies. The Court rejected the contention — pressed in Justice Moreno’s separate opinion — that subdivision (k)(1)’s “shall be sufficient” language makes the dispute-resolution procedure exclusive. Placing that compulsion in a subdivision “dealing solely with employee certifications,” rather than one addressing the third provider, “would be odd, to say the least,” especially given the “far-reaching consequences” of barring employers in “all cases” from litigating entitlement. (Lonicki, supra, 43 Cal.4th at pp. 210–211.) Properly read, subdivision (k)(1) “limits the type of information that an employer can require an employee to provide in a certification” — for instance, barring demands for “detailed intimate and private information about a serious psychiatric condition” — but “does not limit the employer’s choice of legal remedies.” (Id. at pp. 211–212.)

4. Declining the “time is of the essence” rationale of Sims. The Court acknowledged contrary authority — chiefly Sims v. Alameda-Contra Costa Transit Dist. (N.D.Cal. 1998) 2 F.Supp.2d 1253, 1261, which reasoned that letting “courts, rather than doctors” decide leave eligibility would undermine the “swift and expeditious coverage” the statute promises — but was “not persuaded.” (Lonicki, supra, 43 Cal.4th at pp. 212–213.) An employer that doubts a claim may deny leave and discharge the employee, accepting “the risk[]” of a later finding of liability, or it may use the dispute-resolution mechanism as a safe harbor. (Id. at p. 213.) The summary on this point: Sutter’s failure to obtain a binding third opinion “does not bar it from asserting, in this litigation, that it was justified in firing plaintiff because she did not meet the statutory requirement of having a serious health condition that made her unable to do her job.” (Id. at pp. 213–214.)

5. The leave inquiry is job-specific: “functions of the position of that employee.” Turning to the dispositive question, the Court rejected the Court of Appeal’s “generally, rather than for a specific employer” gloss as textually unsupported by either the CFRA or the FMLA. (Lonicki, supra, 43 Cal.4th at p. 214.) Quoting the employment-litigation treatise co-authored by Justice Chin, it observed that “[a] showing that an employee is unable to work in the employee’s current job due to a serious health condition is enough to demonstrate incapacity,” and that working “for a second employer does not mean he or she is not incapacitated from working in his or her current job.” (Ibid.) It adopted the analysis of Stekloff v. St. John’s Mercy Health Systems (8th Cir. 2000) 218 F.3d 858, 861–862, which held that inability to do one’s current job suffices “even if that job is the only one that the employee is unable to perform,” because the inquiry “should focus on her ability to perform those functions in her current environment.” (Lonicki, supra, 43 Cal.4th at pp. 214–215.)

6. Why a similar second job is not conclusive. The Court explained the real-world logic: a serious condition disabling an employee from her assigned position “does not necessarily indicate that the employee is incapable of doing a similar job for another employer.” (Lonicki, supra, 43 Cal.4th at p. 215.) Emergency-room work at a high-volume trauma hospital “may be far more stressful” than similar work where life-threatening injuries are rare, and “[s]ome physical or mental illnesses may prevent an employee from having a full-time job, yet not render the employee incapable of working only part time.” (Ibid.) The Court also confirmed that stress-related conditions can qualify: both statutes “allow medical leave for a stress-related condition, as long as the condition is so serious as to prevent the employee from doing the assigned job,” and a federal regulation provides that “‘[m]ental illness resulting from stress … may be [a] serious health condition[].’” (Id. at pp. 215–216, quoting 29 C.F.R. § 825.114(c) (2007).)

7. The ADA is a separate scheme. The Court declined Sutter’s invitation to import ADA case law refusing disability status for limitations tied to “a specific shift or supervisor.” (Lonicki, supra, 43 Cal.4th at p. 216.) The issue was not Lonicki’s ability to work a particular shift but whether her part-time work elsewhere “conclusively established her ability to work full time for defendant,” and in any event the ADA “is a distinct statutory scheme,” as the FMLA regulations themselves recognize: “‘ADA’s “disability” and FMLA’s “serious health condition” are different concepts, and must be analyzed separately.’” (Ibid., quoting 29 C.F.R. § 825.702(b) (2007).)

8. Application and disposition. Applying these principles, the Court held Lonicki’s near-identical Kaiser work was “strong evidence” of capacity but “not dispositive,” because it was “contradicted by plaintiff and her treating psychologist.” (Lonicki, supra, 43 Cal.4th at pp. 216–217.) Whether she had a serious health condition rendering her unable to do her full-time Sutter job was thus a triable issue, and the trial court “erred in granting defendant’s summary judgment motion.” (Id. at p. 217.) The Court answered Justice Chin directly: his premise that Lonicki was “capable but unwilling” begged the question, because she “claims she was incapable but willing, a matter for the trier of fact to decide,” and her two jobs were merely similar, not identical, with the Sutter job requiring longer hours and allegedly more stressful conditions. (Id. at pp. 216–217, fn. 4.)

Significance

Lonicki is the Supreme Court’s definitive statement that the CFRA’s (and, by parallel construction, the FMLA’s) medical-leave entitlement turns on the employee’s ability to perform her job for this employer — not some abstract, employer-neutral set of job functions. Two practical consequences follow. First, evidence that a leave claimant is moonlighting in a comparable role no longer wins summary judgment by itself; it is powerful impeachment material for the jury, but the employee may rebut it with proof that the two environments differ in intensity, hours, or stressors, or with treating-provider testimony. Second, the decision preserves employers’ litigation rights: an employer that bypasses the second/third-opinion procedure is not estopped from contesting the medical merits later, so the safe harbor is a strategic option rather than a precondition to defense. The opinion is also a clean illustration of the Court’s plain-meaning methodology — leaning on section 14’s “may”/“shall” canon and on the placement of statutory language to defeat both dissents’ structural readings.

Key quotes

“[A]lthough that part-time job is evidence of ability to do similar work for the original employer from whom the employee has sought medical leave, that evidence is not conclusive.” (Lonicki, supra, 43 Cal.4th at p. 205.)

“[U]nder section 12945.2’s subdivision (c)(3)(C) … the italicized phrase refers to the job assigned to the employee by his or her employer; it does not refer, as the Court of Appeal here held, to ‘an inability to perform the essential job functions generally, rather than for a specific employer.’” (Lonicki, supra, 43 Cal.4th at p. 216.)

“[W]hether plaintiff did have a serious health condition that made her unable to do her full-time job for defendant is a disputed issue of fact to be resolved at trial.” (Lonicki, supra, 43 Cal.4th at p. 216.)

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

Practice pointer

Open questions

The Court expressly left open whether a “contemporaneous, irrefutable evidence” exception might bar an estoppel-type argument or invalidate a certification where the employer can show the employee was in fact performing the same job elsewhere — Justice Moreno noted the contention but found that, on these facts, part-time work in a different setting was “not irrefutable evidence” of capacity. (Lonicki, supra, 43 Cal.4th at pp. 226–227 (conc. & dis. opn. of Moreno, J.).) Two dissenting visions also remain in play for future legislative attention. Justice Chin, joined by Justices Baxter and Corrigan, would have read the regulatory “essential functions” standard and the legislative history to bar leave for an employee “successfully performing the essential functions of an identical job for a similar employer, on a part-time basis,” warning that the majority “encourages employees to take advantage of a system” meant to assist them and “shift[s] the balance of power to a capable but unwilling employee.” (Id. at pp. 217–221 (conc. & dis. opn. of Chin, J.).) Justice Moreno, agreeing with the job-specific holding but dissenting on estoppel, would have held that an employer who fails to obtain a second or third opinion “is bound by the opinion of the employee’s health care provider,” because the certification’s “shall be sufficient” language and the statute’s remedial, time-sensitive purpose make the dispute-resolution procedure the exclusive route to deny a validly certified leave. (Id. at pp. 221–226 (conc. & dis. opn. of Moreno, J.).) Both dissenters urged the Legislature to clarify its intent — invitations that frame the statutory questions Lonicki leaves for another day. (Id. at pp. 221, 227.)