Rogers v. County of Los Angeles
The CFRA right to reinstatement runs only to the end of the 12-week protected leave; an employee who remains out longer cannot claim interference for not being returned to the same or a comparable position.
Rogers v. County of Los Angeles (2011) 198 Cal.App.4th 480
Leave & Medical
CFRA
Right to reinstatement
Reversed
In brief. An employee’s right to reinstatement under the California Family Rights Act lasts only as long as the 12-week protected leave: once the employee remains out beyond 12 weeks, the employer has no statutory duty to return her to the same or a comparable position. The Court of Appeal reversed a $356,000 judgment, holding that a CFRA interference claim “should never have been submitted to the jury” where the plaintiff returned after 19 weeks, and that her retaliation claim failed for want of any evidence rebutting the County’s legitimate, nondiscriminatory reorganization rationale. (Rogers v. County of Los Angeles (2011) 198 Cal.App.4th 480, 490, 492–493.)
By Jonathan J. Delshad
Founder & Editor-in-Chief
Facts
The California Family Rights Act (CFRA) (Gov. Code, § 12945.2) “entitles eligible employees to take up to 12 unpaid workweeks in a 12-month period for family care and medical leave … to recover from their own serious health condition.” (Rogers, supra, 198 Cal.App.4th at p. 487.) An employee who takes CFRA leave “is guaranteed that taking such leave will not result in a loss of job security,” and “[u]pon an employee’s timely return from CFRA leave, an employer must generally restore the employee to the same or a comparable position.” (Id. at p. 487, citing Gov. Code, § 12945.2, subds. (a), (l).) But, the court noted at the outset, “[a]n employer is not required to reinstate an employee who cannot perform her job duties after the expiration of a protected medical leave.” (Ibid.)
Katrina Rogers had worked more than 36 years for the County of Los Angeles, most recently as the personnel officer in the executive office serving the Board of Supervisors, where she supervised personnel, payroll, and human-resources staff. (Rogers, supra, 198 Cal.App.4th at p. 483.) On April 3, 2006, she took a medical leave for work-related stress; the County’s third-party administrator approved her “family/medical/CFRA leave,” and she received short-term disability benefits while out. (Id. at pp. 483–484.) Her physician did not release her to return until August 2006. (Id. at p. 484.)
Shortly after Rogers’s leave began, a new executive officer, Sachi Hamai, was appointed (effective April 17, 2006) and undertook a reorganization of the office. (Rogers, supra, 198 Cal.App.4th at p. 484.) In May 2006 — about a month into Rogers’s leave — Hamai decided to bring in a new personnel officer because she “felt that somebody outside the organization … could provide some fresh eyes,” and arranged to transfer Rogers to a high-level human-resources position in the internal services department (ISD). (Id. at pp. 485–486.) Hamai testified the decision “had nothing to do with Rogers personally,” was “a business decision,” and that Rogers’s being on leave had “absolutely” nothing to do with it. (Id. at p. 485.) Rogers returned on August 14, 2006 — 19 weeks after her leave began — learned of the transfer for the first time, considered it a “demotion” and “slap in the face,” and retired effective August 21, 2006, although she conceded she “would not lose any salary or benefits” in the ISD position. (Id. at pp. 485–486.)
Procedural history
Rogers sued the County in December 2007. After summary adjudication, only her CFRA claim remained, and it proceeded to trial on two theories: that the County interfered with her CFRA rights by transferring her to a noncomparable position, and that it retaliated against her for taking leave. (Rogers, supra, 198 Cal.App.4th at pp. 482–483, 486.) The jury returned a special verdict for Rogers, finding her new position was not comparable to her former one and that the County had both interfered and retaliated, and awarded $356,000 in damages. (Id. at pp. 483, 486.) The trial court denied the County’s motions for a directed verdict and for judgment notwithstanding the verdict, and the County appealed. (Id. at pp. 486–487.)
Issue
Two questions framed the appeal. First, whether a CFRA interference claim premised on the denial of reinstatement to a comparable position can lie where the employee did not return to work at the end of the 12-week protected leave period but instead remained out for 19 weeks. (Rogers, supra, 198 Cal.App.4th at p. 487.) Second, whether substantial evidence supported the jury’s finding that “the taking of medical leave was a motivating reason for the County’s decision to transfer her” — the causation element of the CFRA retaliation claim. (Id. at p. 491.)
Holding
Reversed with directions to enter judgment for the County. The CFRA’s reinstatement right “only applies when an employee returns to work on or before the expiration of the 12-week protected leave.” (Rogers, supra, 198 Cal.App.4th at p. 488.) Because Rogers remained on leave for 19 weeks, her right to reinstatement “expired when the 12-week protected CFRA leave expired,” so her interference claim “fail[ed] as a matter of law, and should never have been submitted to the jury.” (Id. at p. 490.) It was “immaterial” that the transfer decision was made during the protected leave. (Id. at pp. 489–490.) The retaliation claim failed because, against the County’s legitimate, nondiscriminatory reorganization rationale, Rogers “put forth no evidence” of the requisite causal connection. (Id. at pp. 492–493.)
Reasoning
1. The two theories of CFRA liability. The court began by distinguishing the two ways the statute is violated: “interference” claims, “in which an employee alleges that an employer denied or interfered with her substantive rights to protected medical leave,” and “retaliation” claims, “in which an employee alleges that she suffered an adverse employment action for exercising her right to CFRA leave.” (Rogers, supra, 198 Cal.App.4th at pp. 487–488.) Because the CFRA and the federal Family and Medical Leave Act (FMLA) (29 U.S.C. § 2601 et seq.) “contain nearly identical provisions,” California courts “routinely rely on federal cases interpreting the FMLA when reviewing the CFRA.” (Id. at p. 488.)
2. The reinstatement right is textually tethered to the 12 weeks. The core of the interference analysis was statutory. The court read the reinstatement guarantee against the rest of section 12945.2 and found the 12-week ceiling pervasive: the statute allows an employee “to take up to a total of 12 workweeks in any 12-month period,” requires “a guarantee of employment in the same or a comparable position upon the termination of the leave,” runs the CFRA period concurrently with the FMLA, and caps “[t]he aggregate amount of leave” at “12 workweeks in a 12-month period.” (Rogers, supra, 198 Cal.App.4th at pp. 488–489, quoting Gov. Code, § 12945.2, subds. (a), (p), (s).) “[O]ther obligations under the CFRA are tied expressly to the 12-week protected leave policy” — accrued sick leave “during the period of the leave,” group health coverage “for the duration of the leave, not to exceed 12 workweeks,” and protected seniority keyed to the employee’s “return[] from leave.” (Id. at p. 489.)
3. Persuasive authority: Neisendorf and the FMLA cases. The court relied principally on Neisendorf v. Levi Strauss & Co. (2006) 143 Cal.App.4th 509, which held that an employee’s “right to reinstatement expires at the end of [the] 12-week protected period,” and on the federal authority Neisendorf had marshaled holding that “an employer does not violate the FMLA when it fires an employee who is unable to return to work at the conclusion of the 12-week protected period.” (Rogers, supra, 198 Cal.App.4th at pp. 489–490, citing, e.g., Hatchett v. Philander Smith College (8th Cir. 2001) 251 F.3d 670, 677 & Spangler v. Federal Home Loan Bank of Des Moines (8th Cir. 2002) 278 F.3d 847, 851.) Congress, the court observed, “only intended to mandate a minimum of twelve weeks of leave,” not “to construct a trap for unwary employers.” (Id. at p. 490.)
4. Application — timing of the decision was immaterial. On the undisputed facts — the County gave Rogers the full 12 weeks, she did not return at the end of that period but stayed out 19 weeks, and the transfer decision “was made within the 12-week leave period, but never communicated to Rogers during her leave” — the court rejected her contention that the timing of the decision created interference liability, noting she “cite[d] no authority to support her position.” (Rogers, supra, 198 Cal.App.4th at pp. 489–490.) Her reinstatement right having lapsed at week 12, the interference claim failed as a matter of law. (Id. at p. 490.)
5. Retaliation — no evidence of causation survived the legitimate reason. Turning to retaliation, the court recited the prima facie elements — a covered employer, an eligible employee, exercise of the right to qualifying leave, and an adverse action “because” of that exercise. (Rogers, supra, 198 Cal.App.4th at p. 491, citing Dudley v. Department of Transportation (2001) 90 Cal.App.4th 255, 261.) Assuming without deciding that the ISD transfer was an adverse action, the court found no substantial evidence that leave “was a motivating reason” for it. (Id. at p. 491.) The County’s reorganization rationale was “undisputed” — indeed the trial court itself had found Hamai’s decision “was motivated only to further her plan to reorganize the Executive Office” — and Rogers “put forth no evidence in response.” (Id. at pp. 491–492.) There was, moreover, “no evidence that at the time Hamai made the transfer decision” anyone “knew that Rogers would be on an ‘extended leave,’” as she had then “been on leave about a month.” (Id. at p. 492.) Following Neisendorf, the court held the County’s “legitimate, nondiscriminatory reason … eliminated any obligation the County might have had to reinstate her,�”,so Rogers “could not state a valid claim under the CFRA.” (Id. at pp. 492–493.)
Significance
Rogers is a clean restatement, at the appellate level, of the rule first established in Neisendorf: the CFRA’s reinstatement guarantee is a 12-week entitlement, not an open-ended one. Its practical force is twofold. First, it confirms that the “interference” theory is structurally time-boxed — the right the employer must honor is the right to be restored at the end of, or before, the 12 weeks, and an employee who cannot or does not return by then has no CFRA reinstatement right left to interfere with. Second, on the retaliation side, it illustrates that proof the adverse decision was made during leave does not, by itself, establish that leave was a motivating reason; once the employer comes forward with a legitimate, nondiscriminatory explanation, the plaintiff must produce affirmative evidence of causation or the claim fails for insufficiency of the evidence. The decision pointedly does not hold that an employee who cannot return at 12 weeks is without recourse — it addresses only the CFRA, and says nothing about any separate duty an employer may owe under FEHA’s disability-discrimination and reasonable-accommodation provisions.
Key quotes
“An employer is not required to reinstate an employee who cannot perform her job duties after the expiration of a protected medical leave.” (Rogers, supra, 198 Cal.App.4th at p. 487.)
“[W]e conclude that Rogers’s right to reinstatement expired when the 12-week protected CFRA leave expired. Her CFRA interference claim therefore fails as a matter of law, and should never have been submitted to the jury.” (Rogers, supra, 198 Cal.App.4th at p. 490.)
Practice pointer
If your client returned to work after the 12-week CFRA/FMLA period closed, the CFRA reinstatement theory is gone — Rogers and Neisendorf foreclose it as a matter of law. Pivot to FEHA: an inability to return at 12 weeks frequently signals a disability, and the employer’s duties to engage in the interactive process and provide reasonable accommodation (including a finite further leave) are independent of, and can outlast, the CFRA’s 12-week guarantee. On a CFRA retaliation claim, do not rest on the fact that the adverse decision coincided with leave; once the employer articulates a reorganization or business rationale, marshal affirmative proof of causation — decision-maker knowledge of the protected leave, departures from policy, shifting explanations, or comparator evidence — because, as Rogers shows, an unrebutted legitimate reason will defeat the claim on the evidence.
Open questions
The court assumed “without deciding” that the ISD position was noncomparable and thus that Rogers suffered an adverse employment action, resolving the retaliation claim solely on causation. (Rogers, supra, 198 Cal.App.4th at p. 491.) It declined to reach Rogers’s equitable-estoppel argument because it was raised for the first time on appeal, leaving open whether estoppel might ever extend the reinstatement right beyond 12 weeks. (Id. at p. 490 & fn. 6.) And because the case was litigated and decided solely under the CFRA, the court did not address whether the County owed Rogers any duty, under FEHA’s disability-accommodation provisions, that survived the expiration of her protected leave — the most consequential question the decision leaves for another day.