AARON, J. —
Plaintiff Leticia Bareno appeals from a judgment entered in favor of defendants San Diego Miramar College (the College), San Diego Community College District, and San Diego Community College District Administrative Facilities Corporation.
In early 2013, Bareno was disciplined by her employer, the College, in relation to her employment as an administrative assistant. Thereafter, Bareno required medical treatment and accompanying leave from work, and she requested medical leave from her supervisor. Bareno provided medical certification for this request for leave. After the time frame specified in Bareno's initial request for leave had ended, Bareno continued to be absent from work. Bareno had attempted to e-mail her supervisor a recertification of her need for additional medical leave, but the College claimed that Bareno's supervisor did not receive any such request from Bareno for additional leave. As a result, after Bareno continued to be absent from work for an additional five consecutive days, the College took the position that she had "voluntarily resigned." After Bareno learned that the College considered her to have voluntarily resigned as a result of her continued absence from work, Bareno attempted to provide the College with information regarding the medical necessity of the leave that she had taken. The College refused to reconsider its position.
Bareno filed suit against all three defendants, alleging that in effectively terminating her employment, SDCCD retaliated against her for taking medical
On appeal, Bareno contends that the trial court erred in granting summary judgment on her CFRA retaliation claim because there remain triable issues of material fact in dispute. We agree. Because there remain material issues in dispute and the record is capable of supporting a judgment in favor of Bareno, the trial court erred in granting summary judgment in favor of SDCCD. We therefore reverse the judgment and remand the matter for further proceedings.
Bareno began working as a student services assistant for the College in March 1999. In 2000, Bareno was promoted to senior secretary at the school of business, technical careers and workforce development.
In 2006, the College suspended Bareno for a two-week period and recommended that her employment be terminated. However, rather than terminate Bareno's employment, the College entered into a "Last Chance Agreement" (Agreement) with Bareno. The Agreement indicated that the College agreed to postpone its termination recommendation to the board of trustees in exchange for Bareno following specified terms and conditions of her employment, as set forth in the Agreement. Among other things, Bareno agreed to maintain regular and predictable attendance and to comply with the College's policies and procedures for reporting absences. The Agreement was in effect for 18 months, and expired in May 2008.
The record reveals no additional issues documented in Bareno's personnel file until 2012. In May 2012, Dean Lynne Ornelas, Bareno's supervisor,
In January 2013, Ornelas prepared a written recommendation that Bareno be suspended for performance issues similar to those noted in the written reprimand from August 2012. On February 14, 2013, the College held a predisciplinary meeting with Bareno to discuss the problems that Ornelas had identified. On February 19, the College disciplined Bareno with a three-day suspension from work with no pay. The suspension was set to run from Wednesday, February 20, through Friday, February 22, 2013.
According to Bareno, on Monday, February 25, 2013, she called Ornelas at 4:30 a.m. and told Ornelas that she would not be at work because she needed to seek medical attention. Bareno indicated that she was sick, depressed, stressed, and had to go to the hospital. Later that evening, Bareno e-mailed Ornelas to say that she would be out on medical leave through March 1, 2013, and stated that she would contact Ornelas "sometime on Friday[, March 1] to inform you of the date of my return to work."
The following day, February 26, Ornelas responded to Bareno's e-mail, and copied the College's vice-president, Jerry Buckley, informing Bareno that before she could return to work, she would have to provide a physician's statement "on either the District's station[e]ry, or on the physician's official station[e]ry."
On February 27, Bareno responded to Ornelas's e-mail with an e-mail stating, "Thank you for the information." The same day, Bareno e-mailed Ornelas a copy of a "Work Status Report" from Kaiser Permanente indicating that Bareno had a medical need to take leave from work from February 25, 2013, through March 1, 2013. The document identified the onset of the condition as February 25, 2013, and indicated that Bareno's next appointment with a medical provider would take place on March 1, 2013.
Also on March 1, Bareno went to a UPS Store where she utilized the UPS Store's e-mail system to e-mail Ornelas a copy of a new "Work Status Report" from Kaiser Permanente indicating that Bareno required leave from work for a medical reason during the period of time between March 1, 2013, and March 8, 2013.
According to Ornelas, she did not receive Bareno's March 1 e-mail.
Bareno did not appear for work on Monday, March 4. That day, Ornelas contacted the human resources office for the College and informed someone there "of [Bareno's] absence without any contact" for that day. Ornelas forwarded Bareno's February 25 medical request, as well. On March 6, Robin Lewison e-mailed Ornelas and Buckley, informing them that five consecutive days of unauthorized absences would constitute an abandonment of an employee's position under the collective bargaining agreement governing Bareno's employment.
Bareno did not report to work for the rest of the week of March 4, 2013. Bareno testified that sometime during the time period between March 1 and March 8, she received a call "from one of [her] coworkers, but [she] just could not discuss anything," and so she "did not speak to anybody."
On Friday, March 8, 2013, Will Surbrook, vice-chancellor of human resources, sent a letter to Bareno via certified mail to inform her that her unauthorized absences constituted a voluntary resignation, effective March 11, 2013.
Also on March 8, Peter Alvino engaged in an e-mail exchange with Ornelas regarding Bareno's absences. Alvino said to Ornelas, "Good question. As you know, her leave is only approved through March 1st. However, as you may also know, she may request from her physician an extension from March 4th and forward."
The following day, Saturday, March 9, Bareno e-mailed Ornelas another "Work Status Report" from Kaiser Permanente that authorized her leave from work for the period between March 8, 2013, and March 15, 2013. The "Work Status Report" identified February 25, 2013, as the date of onset of the condition for which Bareno required continued leave from work. In this e-mail, Bareno also informed Ornelas that she intended to return to work on April 8, 2013.
On the morning of Monday, March 11, 2013, Ornelas e-mailed Robin Lewison in the College's human resources department, Buckley, and Alvino to inform them of the March 9 e-mail Bareno had sent her. Ornelas asked, "Can I require a medical verification for all days missed since her suspension?" Lewison's response did not directly answer Ornelas's question, but instead quoted a portion of the collective bargaining agreement governing Bareno's employment regarding the provision stating that absence from duty without authorized leave for five days constitutes a voluntary resignation, and
On Wednesday, March 13, 2013, Bareno again e-mailed Ornelas medical leave notices from Kaiser Permanente for the period between March 8 and March 15, 2013, as well as an SDCCD form used to request a formal leave of absence. Ornelas forwarded Bareno's e-mail to Lewison, who responded, "Our position remains the same in that we wait for the unit member to contact you, Lynne, to request a meeting."
On Monday, March 18, Bareno faxed to Ornelas her SDCCD form seeking a formal leave of absence, as well as Kaiser Permanente "Work Status Reports" indicating the need for leave between March 8 and March 19, 2013. That same day, Bareno, who had been seeking medical treatment in Riverside County during these events, traveled to San Diego to retrieve mail from her post office box. On this date, Bareno finally received Surbrook's March 8, 2013 letter informing her of her "voluntary resignation."
On Wednesday, March 20, 2013, Bareno received Surbrook's March 18, 2013 letter. On Monday, March 25, 2013, Bareno drove to the school and scheduled an appointment to speak with chancellor Constance Carroll. Thereafter, Surbrook called Bareno and agreed to schedule a meeting with her and Alvino.
Bareno met with Alvino on April 3. She provided him with copies of all of her documentation from Kaiser Permanente and reiterated her position that she had been on medical leave from February 25th forward, and that she had not voluntarily resigned. Bareno also mailed, via certified mail, copies of her medical documents to both Lewison and Alvino on April 5. These documents included the Kaiser Permanente "Work Status Report" indicating that a doctor
More than 10 days later, on Tuesday, April 16, 2013, Alvino mailed Bareno a letter informing her that his "office received your recent documents," but had ultimately concluded that "[n]one of the documents mailed to us supports your claim that you requested a leave of absence for the dates in question and that you had contacted your supervisor." Alvino's letter further stated that the College continued to "accept[] [Bareno's] voluntary resignation." Bareno apparently received this letter on the same day it was sent.
Three days later, April 19, 2013, Bareno mailed another package to Alvino. This package included a copy of the "Work Status Report" indicating Bareno's need to be off of work between March 1 and March 8 for medical reasons, as well as a copy of the e-mail sent to Ornelas from the UPS Store in which Bareno had attached this "Work Status Report." During a telephone call, Alvino told Bareno that he would review the materials and would discuss the issue with "the Committee." Bareno did not hear from Alvino after that point in time.
Bareno filed a complaint against SDCCD on February 21, 2014, alleging one cause of action for retaliation in violation of CFRA. SDCCD moved for summary judgment, which the trial court granted on October 9, 2015. The court then entered judgment in favor of SDCCD on October 27. Bareno filed a timely notice of appeal.
"Summary judgment is granted when a moving party establishes the right to the entry of judgment as a matter of law. [Citation.] On appeal, the reviewing court makes `"an independent assessment of the correctness of the trial court's ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law."'" (Hesperia Citizens for Responsible Development v. City of Hesperia (2007) 151 Cal.App.4th 653, 658 [60 Cal.Rptr.3d 124].)
"`In the summary judgment context, ... the evidence must be incapable of supporting a judgment for the losing party in order to validate the summary judgment.'" (Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 864, 877 [58 Cal.Rptr.3d 729] (Faust), italics added.) "`Thus even though it may appear that a trial court took a "reasonable" view of the evidence, a summary judgment cannot properly be affirmed unless a contrary view would be unreasonable as a matter of law in the circumstances presented.'" (Ibid., italics added.)
Generally, CFRA makes it an unlawful employment practice for an employer of 50 or more persons to refuse to grant a request by an employee to take up to 12 workweeks in any 12-month period for family care and medical leave. (§ 12945.2, subds. (a), (c)(2)(A).) "CFRA has two principal components: a right to leave of up to 12 weeks in any 12-month period to care for a family member or for the employee's own medical condition (Gov. Code, § 12945.2, subds. (a), (c)(2)(A)), and a right to reinstatement in the same, or a comparable, position at the end of the leave. (Gov. Code, § 12945.2, subd. (a).)" (Richey, supra, 60 Cal.4th at p. 919.)
"Violations of ... CFRA generally fall into two types of claims: (1) `interference' claims in which an employee alleges that an employer denied or interfered with her substantive rights to protected medical leave, and (2) `retaliation' claims in which an employee alleges that she suffered an adverse
In order to establish a prima facie case for retaliation as required by the first prong of the McDonnell Douglas burden-shifting analysis, an employee must show "(1) he or she engaged in a `protected activity ...' [such as taking leave for a CFRA-protected purpose,] (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer's action." (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042 [32 Cal.Rptr.3d 436, 116 P.3d 1123].) "If the employee successfully establishes these elements and thereby shows a prima facie case exists, the burden shifts to the employer to provide evidence that there was a legitimate, nonretaliatory reason for the adverse employment action." (Loggins, supra, 151 Cal.App.4th at p. 1109.) If the employer satisfies this prong by producing evidence demonstrating the existence of "a legitimate reason for the adverse employment action, `the presumption of retaliation "`"drops out of the picture,"'"' [citation], and the burden shifts back to the employee to provide `substantial responsive evidence' that the employer's proffered reasons were untrue or pretextual." (Ibid.)
"`Whether judgment as a matter of law is appropriate in any particular case will depend on a number of factors. These include the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case....'" (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 362 [100 Cal.Rptr.2d 352, 8 P.3d 1089].) We therefore reiterate: "[M]any employment cases present issues of intent, ... motive, and hostile working environment, issues not determinable on paper. Such cases ... are rarely appropriate for disposition on summary judgment, however liberalized [summary judgment standards may] be." (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 286 [100 Cal.Rptr.3d 296], italics added.)
According to SDCCD, Bareno's CFRA retaliation claim fails because the undisputed evidence demonstrates that she cannot satisfy the third element of her claim — i.e., she cannot show that she "`exercised her right to take leave for a qualifying CFRA purpose.'" (Faust, supra, 150 Cal.App.4th at p. 885.) As SDCCD notes, the trial court determined that Bareno could not establish her prima facie case on summary judgment for two reasons: (1) "she did not show [that] she requested leave from the College," and (2) "even if she did request the leave for March 4-8 via the UPS email, the doctor's note she offered did not meet the requirements of the CFRA to constitute a `reasonable request.'" SDCCD contends that the trial court's reasons were correct and support judgment in its favor.
SDCCD asserts that the trial court correctly concluded that SDCCD was entitled to judgment on Bareno's CFRA retaliation cause of action because Bareno "did not properly notify the College that she was taking medical leave." Alternatively, SDCCD contends that Bareno did not exercise her right to CFRA leave for the period between March 4 and March 8, 2013, because the "medical documentation" that she provided to SDCCD was "inadequate." The record does not support the conclusion that SDCCD is entitled to judgment as a matter of law with respect to either contention. Rather, the evidence, when viewed in the light most favorable to Bareno, demonstrates that she did provide sufficient notice of her need for CFRA-protected leave.
The regulation adopted by the Commission regarding requests for leave provides in relevant part that, to request CFRA leave, "[a]n employee shall provide at least verbal notice sufficient to make the employer aware that the
This provision appears to presume the existence of circumstances in which an employee is able to provide an employer with notice of the need for leave. Indeed, the regulation permits employers to "require that employees provide at least 30 days' advance notice before CFRA leave is to begin if the need for the leave is foreseeable based on an expected birth, placement for adoption or foster care, or planned medical treatment for a serious health condition of the employee or a family member." (Cal. Code Regs., tit. 2, § 11091, subd. (a)(2), italics added.) However, the regulations provide that this 30-day general rule is inapplicable when the need for medical leave is not foreseeable: "If 30 days' notice is not practicable, such as because of a lack of knowledge of approximately when leave will be required to begin, a change in circumstances, or a medical emergency, notice must be given as soon as practicable." (Cal. Code Regs., tit. 2, § 11091, subd. (a)(3), italics added.) Further, "[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." (Cal. Code Regs., tit. 2, § 11091, subd. (a)(4), italics added.)
In response to a request for leave for a CFRA-protected purpose, CFRA permits an employer to request "certification" from an employee who seeks to take CFRA-protected leave for his or her own medical care. In this regard, CFRA provides:
If an employer has doubts regarding the validity of the employee's proffered certification, CFRA establishes a specific procedure that the employer must utilize before the employer may reject the employee's request for CFRA leave:
The Commission's implementing regulations provide further detail regarding how CFRA is to be carried out in the workplace. For example, the regulations define "certification" for purposes of CFRA:
The implementing regulations further detail that an employer "may require that the employee provide any certification within no less than 15 calendar days of the employer's request for such certification, unless it is not practicable for the employee to do so despite the employee's good faith efforts. This means that, in some cases, the leave may begin before the employer receives the certification. Absent extenuating circumstances (e.g., unavailability of healthcare provider), if the employee fails to timely return the certification, the employer may deny CFRA protections for the leave following the expiration of the 15-day time period until a sufficient certification is provided. The same rules apply to recertification. If the employee never produces the certification or recertification, the leave is not CFRA leave. At the time the employer requests certification, the employer also must advise the employee of the anticipated consequences of his or her failure to provide adequate certification." (Cal. Code Regs., tit. 2, § 11091, subd. (b)(3), italics added.)
Given this legal framework, it is not surprising that the question "[w]hether notice is sufficient under CFRA is a question of fact." (Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1255 [82 Cal.Rptr.3d 440].)
SDCCD asserts that Bareno was absent on Monday, March 4, 2013, without "prior notice" from Bareno, and that it is undisputed that she "did not call in nor respond to inquiries for the remainder of that work-week." Thus, SDCCD asserts, "Bareno did not exercise her right to request CFRA leave." SDCCD's recitation of the "facts" when it makes these assertions, however, requires one to ignore certain evidence in the record and also requires that one view other facts in the record in the light most favorable to SDCCD, rather than Bareno. In considering SDCCD's motion for summary judgment, however, the court is required to view the record in the light most favorable to Bareno, not SDCCD. As we explain, a review of the record in the light most favorable to Bareno reveals evidence that would support a finding in favor of Bareno on the question whether she made a reasonable request for leave for a CFRA-qualifying purpose.
It is undisputed that Bareno originally notified SDCCD of her need for CFRA-qualifying leave on Monday, February 25, 2013. On that day, Bareno called Ornelas and told her that she would not be at work because she needed to seek medical attention. Bareno indicated that she was sick, depressed, stressed, and had to go to the hospital. Later that evening, Bareno also e-mailed Ornelas to inform her that she would be out on medical leave at least through March 1, 2013. On February 27, Bareno provided SDCCD with a document from her health provider at Kaiser Permanente in which the provider certified that Bareno was "placed off work" by the provider for the period from February 25 to March 1, 2013. SDCCD apparently concedes that Bareno notified it of her need for this medical leave, and there is no evidence in the record that SDCCD ever challenged the propriety of the medical certification that Bareno submitted for this period of time. Nor is there evidence that SDCCD sought to employ the procedure set forth in CFRA to seek a second opinion regarding Bareno's need for medical leave.
There is also evidence in the record that on March 1, Bareno e-mailed Ornelas a second document from her health provider, indicating her need for leave from work between March 1 and March 8, 2013. This document identified the Kaiser Permanente provider, indicated the onset of Bareno's condition as "2/25/2013," and stated, "Off Work. [¶] This patient is placed off work from 3/1/2013 through 3/8/2013." (Underscoring omitted.) This document, titled a "Work Status Report," is virtually identical to the document that Bareno submitted to Ornelas on February 27, which the College apparently accepted as sufficient certification of Bareno's need for medical leave for the period from February 25 to March 1, 2013.
In addition, the CFRA regulations require that employers permit an employee up to 15 days to provide necessary certification when the employer has requested that the employee provide certification to support his or her request for leave for a CFRA-qualifying purpose. (See Cal. Code Regs., tit. 2, § 11091, subd. (b)(3) [where employer requires certification, such certification may be required "within no less than 15 calendar days of the employer's request for such certification"].) The regulations thus expressly contemplate that an employee may be out on CFRA-protected leave prior to providing medical certification regarding that leave. (Cal. Code Regs., tit. 2, § 11091, subd. (b)(3) ["This means that, in some cases, the leave may begin before the employer receives the certification"].) It is clear that SDCCD was aware that CFRA-protected leave may be taken even when an employee has not yet provided his or her certification, given that Peter Alvino notified others at SDCCD that although Bareno's "leave [was] only approved through March 1st," Bareno could "request from her physician an extension from March 4th and forward."
It is undisputed that Bareno was in contact with SDCCD after the week during which SDCCD contends she was absent without request for leave, and she provided multiple other medical certifications for this period of time. Yet, SDCCD never informed Bareno, in response to her later communications, that it believed it had not received certification for the week of March 4 through March 8, 2013. Instead, SDCCD waited until the end of that week to send Bareno a letter via certified mail, addressed to a post office box, informing her of its position that she had been absent without justification and that it therefore considered her to have voluntarily resigned.
Based on all of the evidence, a reasonable fact finder could conclude that Bareno's attempts to contact SDCCD about her need for leave for a CFRA-qualifying purpose were reasonable, and that she therefore sufficiently "requested" CFRA leave for the entire period during which she was absent in early 2013. A reasonable fact finder could also conclude that SDCCD was on notice that Bareno was absent from work between March 1 through March 8, 2013, due to a need for medical leave — i.e., for a CFRA-protected reason. Given this record, the fact that Ornelas states that she did not receive one of many e-mails sent by Bareno regarding an ongoing and changing need for medical leave is simply insufficient to support summary judgment in favor of SDCCD on Bareno's CFRA retaliation claim.
SDCCD contends that, even if one presumes that Bareno's March 1 e-mail to Ornelas was sufficient to provide notice to SDCCD regardless of whether Ornelas received it or not, Bareno still could not establish a prima facie case of retaliation because the Kaiser Permanente "Work Status Report" that she provided as certification of the need for CFRA-qualifying leave was "inadequate." Specifically, SDCCD contends that the "Work Status Report" "did not contain the required information to qualify as a reasonable request under the CFRA."
The "Work Status Report" that Bareno submitted for the relevant time period was issued by Dr. Evan George Tzakis on what appears to be a form regularly used by Kaiser Permanente for the purposes of informing employers that employees need time off from work or altered work arrangements due to medical necessity. The form provides that the onset of Bareno's condition that is the subject of the certification was "2/25/2013," thereby clearly indicating the date on which the serious health condition commenced. Further, the form states, "Off Work. [¶] This patient is placed off work from 3/1/2013 through 3/8/2013." (Underscoring omitted.) In doing so, the form provides both the probable duration of Bareno's condition, as well as an indication to the employer that the doctor believes that a leave of absence from work is necessary. In other words, the clear intention of this document is to inform Bareno's employer that she cannot fulfill the functions of her job and needs the identified time off in order to address a serious medical condition. The information provided on the standardized Kaiser Permanente form is sufficient to meet the standards set forth by CFRA.
Although SDCCD argued in the trial court and now argues on appeal that this standardized form is insufficient to meet CFRA's standards, SDCCD apparently accepted a virtually identical form from Bareno as sufficient to certify the leave she took between February 25 and March 1, 2013. In other words, one could readily conclude from this record that SDCCD believed that an identical or similar form was sufficient to support Bareno's claim for the CFRA-qualifying leave for the week prior to the week in question. At no point did SDCCD ever indicate to Bareno that any of the forms she had previously submitted did not meet the legal standard for a "certification" under CFRA. Yet on appeal, SDCCD questions the legal adequacy of a substantially similar form with respect to Bareno's absences from work between Monday, March 4, and Friday, March 8, 2013.
It is clear, however, that the regulations impose on the employer an obligation to request from the employee additional information if it believes that such information is necessary (Cal. Code Regs., tit. 2, § 11091, subd. (a)(1)), and CFRA provides for a specific process by which SDCCD
Given this record, SDCCD is not entitled to summary judgment on the ground that the medical documentation that Bareno provided to SDCCD was inadequate, as a matter of law, to constitute the exercise of a right to CFRA-qualifying leave.
SDCCD argues on appeal that Bareno's CFRA retaliation claim fails because the undisputed evidence demonstrates that she cannot satisfy the fourth element of her claim. According to SDCCD, Bareno cannot show that she suffered an adverse employment action because she exercised her right to take CFRA leave. (See Faust, supra, 150 Cal.App.4th at p. 885.) SDCCD contends that "[t]he true but-for cause of the termination was that [SDCCD] thought she had abandoned her job." However, the record does not establish this as a matter of law.
Finally, SDCCD argues that it "did not believe, nor have good reason to believe, that Bareno's absence from March 4 through March 8, 2013 was protected," and contends that it reasonably believed that she was voluntarily resigning. SDCCD asserts that Bareno "did not call to ask for leave," that SDCCD did "not receive[] the email or doctor's note she claims she sent," that Bareno "had not responded to the telephone message left for her," and that Bareno "had not responded to the certified letter, which warned her that her leave was unauthorized so that she must contact her supervisor within five days or her unauthorized absence would be treated as a voluntary resignation." However, this recitation of the evidence is not complete, nor does it view the evidence in the light most favorable to Bareno. A full review of the record demonstrates that there remain material issues of fact in dispute that should be decided by a trier of fact, not the court.
For example, although there is no evidence that Bareno placed a telephone call to anyone at SDCCD between March 1 and March 8, 2013, there is evidence in the record that Bareno e-mailed multiple individuals at SDCCD, including her direct supervisor, Ornelas, and vice-president Jerry Buckley, on March 1, 2013, in addition to other dates. Although Ornelas states that she did not receive the March 1 e-mail from Bareno regarding her need for additional medical leave, there is clear evidence demonstrating that Bareno did, in fact, send the e-mail to Ornelas's work e-mail account. A fact finder could conclude that Bareno's sending this e-mail to Ornelas was a reasonable effort to inform her employer of her continued need for CFRA-protected leave, such that it was sufficient notice under CFRA to protect Bareno's absences during the week of March 4 through March 8, regardless of whether Ornelas received the e-mail. A fact finder could also reach a number of other conclusions with respect to Bareno's March 1 e-mail to Ornelas, none of which would entitle SDCCD to summary judgment on Bareno's CFRA claim. For example, as discussed above, a fact finder could conclude that the e-mail was screened out before reaching Ornelas's mailbox or that Ornelas did receive the e-mail, but failed to view it or purposely ignored it. Regardless, what is clear from the facts presented on summary judgment is that there can be no certainty on this record that a fact finder would conclude that Bareno's request for medical leave for the week of March 4 through March 8, 2013, was inadequate as a matter of law, under CFRA's requirements, given the evidence regarding Bareno's communications with SDCCD.
Even more problematic is SDCCD's suggestion that Bareno did not respond to a "telephone message left for her." The clear implication of SDCCD's contention is that SDCCD reached out to Bareno to clarify her
Similarly, SDCCD's reliance on the fact that Bareno "had not responded to the certified letter, which warned her that her leave was unauthorized so that she must contact her supervisor within five days or her unauthorized absence would be treated as a voluntary resignation" as an indication that it did "no[t] have good reason to believe" that Bareno's absences between March 4 and March 8 were CFRA protected is misguided. SDCCD did not place that letter to Bareno in the mail until March 8, so she clearly could not have received it during the week that she was absent. Therefore, her failure to contact her supervisor in response to that letter has no bearing on whether SDCCD had reason to believe, at the time Bareno was absent between March 4 and March 8, that her absences were or were not CFRA protected.
What does have bearing on SDCCD's reason to believe that Bareno's absences between March 4 and March 8 were CFRA protected are all of Bareno's communications with her supervisors both prior to and after those dates. The record is replete with evidence from which a reasonable fact finder could conclude that SDCCD knew, or reasonably should have known, that Bareno had no intention of voluntarily resigning her position (or being absent without excuse) when she was absent from work between March 4 and March 8, 2013.
Indeed, both immediately before and immediately after the week of March 4 through March 8, 2013, Bareno contacted SDCCD with information regarding her need for medical leave, and provided her original medical certification and additional recertifications regarding her absences. Within a brief time after the relevant absences (and immediately upon learning that SDCCD was claiming that it had not received her original certification for the absences), Bareno informed SDCCD that she had been out for a medical reason and supplied the necessary medical certification. Thus, even if SDCCD had initially understood Bareno to be absent without justification, not long after those absences, it was made aware that she had been out for medical reasons, pursuant to a doctor's order. Nevertheless, even after obtaining this information, SDCCD would not reconsider its original position
This record does not demonstrate that the evidence is wholly "incapable of supporting a judgment for [Bareno as] the losing party." (Faust, supra, 150 Cal.App.4th at p. 877.) We therefore reverse the judgment and remand the matter to the trial court for further proceedings.
The judgment is reversed. The matter is remanded for further proceedings. Costs are awarded to appellant.
O'Rourke, Acting P. J., and Irion, J., concurred.
Further, the evidence that SDCCD offered by way of Ornelas's declaration that she did not receive Bareno's March 1 e-mail is not dispositive. In fact, at most, the declaration establishes that disputed factual issues continue to exist on this record. For example, one could reach any number of conclusions as to what happened with respect to Bareno's March 1 e-mail to Ornelas. It is possible that Bareno's e-mail was screened out and for that reason, did not arrive in Ornelas's inbox. Or, the e-mail may have arrived in Ornelas's inbox, but Ornelas overlooked the message. It is also possible that Ornelas did receive the e-mail but falsely claimed that she did not receive it. Given that we do not make credibility determinations on summary judgment, but instead view the evidence in the light most favorable to the nonmoving party, we must acknowledge that the evidence, when viewed in the light most favorable to Bareno, could support a finding that Ornelas did receive Bareno's March 1, 2013 e-mail in her work account. Thus, even if a fact finder were to conclude that Bareno's mere sending of the March 1 e-mail, without confirming that it was received, did not, in itself, amount to a reasonable request for leave under CFRA for the period between March 4 and March 8, a fact finder could nevertheless conclude that Bareno sent the e-mail, and that the e-mail was received by its intended recipient, such that any failure in communication was due to an error on Bareno's employer's part, and should not be attributed to Bareno.
