Metropolitan News-Enterprise


Wednesday, August 13, 2008


Page 1


Divided C.A. Revives Suit Over Employee Medical Leave




A worker who was fired for excessive absenteeism may be entitled to damages under the state’s medical leave law, even though he did not specifically request such leave, the Court of Appeal for this district has ruled.

Div. Five, in a 2-1 decision, Monday revived a portion of a suit by a former airline employee who claims he was terminated upon reaching the company’s limit on unexcused absences, even though he provided evidence that he had been hospitalized on several of the days he missed work.

The plaintiff, Henry Avila, worked for Continental Airlines’ catering division from 1998 to January 2005. The company had a policy at the time that an employee with seven or more “recordable” absences in any 12-month period would be terminated.

The rule on absences due to illness was that each day missed was recordable, unless the employee presented a doctor’s note, in which case the entire period of the illness would be treated as one recordable absence. Avila was terminated for excessive absenteeism in 2001, but reinstated, but was terminated again in January 2005 after the company determined that he had seven recordable absences during the 12 months preceding.

He filed a lawsuit against the company, raising multiple causes of action. By late 2006, the only remaining claims were for disability discrimination and failure to accommodate under the Fair Employment and Housing Act, termination in retaliation for exercising medical leave rights granted by the California Family Rights Act, and termination in violation of fundamental public policy as set forth in FEHA and CFRA.

In opposition to the airline’s motion for summary judgment on those claims, Avila cited proof that he was hospitalized at a Kaiser facility for pancreatitis on three of the days that the company recorded as unexcused absences, and said he had presented his superiors with copies of Kaiser forms showing that.

Los Angeles Superior Court Judge Joanne O’Donnell granted summary judgment.

She reasoned that the FEHA claims failed because if Avila had a disability, there was no evidence the company was aware of it when they fired him. As for the CFRA claim, the judge said, the evidence showed only that Avila was ill on the days in question, not that he had requested the time off under CFRA.

The appellate panel unanimously agreed with the trial judge as to the FEHA claim. While the company may have been aware that Avila was ill, the justices reasoned, there is a difference between an illness and a disability, and there was no evidence to support a finding that the company was aware that the plaintiff had a disability.

But Justice Richard Mosk, joined by Justice Orville Armstrong, said that presenting the company with the hospital forms, if in fact he did so, could be construed as a request by Avila for statutory leave.

Mosk noted that under the Fair Employment and Housing Commission’s CFRA regulations, a worker “need not expressly assert rights under CFRA or [the federal Family and Medical Leave Act] or even mention CFRA or FMLA, to meet the notice requirement; however, the employee must state the reason the leave is needed.”

The employer, the regulations say, may require up to 30 days notice if the need for leave is foreseeable. But when the request is based on unforeseeable circumstances, such as a medical emergency, notice need only “be given as soon as practicable.”

Under emergency circumstances, such as those of Avila’s hospitalization, Mosk wrote “[t]he absence itself...suggests the necessity of a leave—at least as to those absent days.”

Mosk elaborated that “[b]ecause plaintiff’s need for leave was unforeseeable due to an emergency medical condition, and because plaintiff testified that he both called in sick during his absence and submitted the Kaiser forms to Continental upon returning to work, a reasonable trier of fact could also conclude that plaintiff requested leave ‘as soon as practicable.’”

Justice Sandy Kriegler, dissenting from the revival of the CFRA and public policy claims, said Avila never requested leave under CFRA. He emphasized the requirements that an employee “state the reason the leave is needed,” as well as the requirement that notice “be given as soon as practicable.”

Avila, he noted, did not turn in the Kaiser firms until long after the absences.

“Avila’s conduct did not constitute a request for leave as defined in the California Code of Regulations...,” the justice argued. “He never gave verbal or written notice that he was requesting a leave. He did nothing to let his employer know the reason for his need for a leave. When Avila returned to work in December 2004 after his hospitalization, he did not request leave because he was not terminated. In fact, Avila was not terminated until January 2005, when his habitual absences exceeded that permitted by Continental. At that point, Avila chose to follow an internal appeal process, which he had successfully pursued years earlier when he was also terminated for excessive absences. To suggest that Avila made a request for leave under the CFRA, in the face of these undisputed facts, is entirely inconsistent with the requirements of the CFRA and the California Code of Regulations....”

Attorneys on appeal were Marcus A. Mancini of Mancini & Associates and Gerard M. Serlin and Kelly R. Horwitz of Benedon & Serlin for the plaintiff and Steven Drapkin for the defendant.


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