Escriba v. Foster Poultry Farms, Inc.

Filing 98

ORDER on Cross-Motions for Summary Judgement/Adjudication, signed by Judge Oliver W. Wanger on 6/3/2011. (Kusamura, W)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MARIA ESCRIBA,

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Plaintiff,
v.
FOSTER POULTRY FARMS, a
California corporation,

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Defendant.
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1:09-cv-1878 OWW MJS
ORDERS ON CROSS-MOTIONS FOR
SUMMARY JUDGMENT/
ADJUDICATION

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I.

INTRODUCTION

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The parties’ cross-motions for summary judgment are before
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the court. Maria Escriba (“Plaintiff”) and Defendant Foster
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Poultry Farms (“FPF” or “Defendant”) have respectively moved for
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partial summary judgment on Plaintiff’s interference claims and
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Defendant’s affirmative defenses.1 Defendant FPF has moved for
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summary judgment on claims one through six in the first amended
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complaint and on the punitive damages claim.
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Plaintiff also moves to strike portions of John Dias’
testimony. (Doc. 61.) Mr. Dias’ testimony was not considered.
Plaintiff’s Motion to Strike is moot.
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II.

PROCEDURAL BACKGROUND

Plaintiff filed this action, on October 26, 2009. The

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operative First Amended Complaint (“FAC”) asserts seven causes of

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action against FPF: (1) Interference under Family Medical Leave

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Act (“FMLA”); (2) “Discrimination” under FMLA; (3) Failure to

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provide leave in violation of the California Family Rights Act

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(“CFRA”)2; (4) Unlawful discharge under CFRA; (5) Failure to

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prevent discrimination in violation of the Fair Employment and

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Housing Act (“FEHA”); (6) Wrongful termination in violation of

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public policy; and (7) Failure to promptly pay wages owed.
On March 30, 2010, FPF answered Plaintiff’s FAC and alleged

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fourteen affirmative defenses. (Doc. 6.) FPF moved for summary

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judgment on Plaintiff’s first through sixth claims on March 28,

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2011. (Doc. 32.) Defendant asserts that Plaintiff’s father did

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not have a serious medical condition, Plaintiff did not give

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timely or adequate notice to invoke FMLA-protected leave, and

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Plaintiff’s failure to comply with the collective bargaining

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agreement led to her termination.

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Plaintiff opposes FPF’s motion (doc. 57.) and filed a cross

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motion seeking partial summary judgment on her Interference

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claims and Defendant’s affirmative defenses. (Doc. 40.)

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At oral argument, the parties agreed that Plaintiff’s
FMLA and CRFA claims are substantively identical. Any legal
analysis of the FMLA applies equally to Plaintiff’s CFRA claims.
See e.g., Xin Liu v. Amway Corp., 347 F.3d 1125, 1145 n. 4 (9th
Cir. 2003) (“CFRA adopts the language of the FMLA and California
state courts have held that the same standards apply.”); See also
Moreau v. Air France, 2002 WL 500779, *1 (N.D.Cal. Mar.25, 2002)
(discussing only FMLA principles because CFRA and FMLA are
“substantively identical”), aff’d, 343 F.3d 1179 (9th Cir.2003).
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II.

BACKGROUND FACTS3

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A.

UNDISPUTED FACTS

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1. Plaintiff was 50 years old at the time of her

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termination, has a third grade education, and earned $9.71 per

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hour after 18 years in the same job, eight at FPF.

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2. Prior to her termination, Plaintiff was never disciplined

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for tardiness or unexcused absence throughout the course of her

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employment at FPF.

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3. Plaintiff’s employment at FPF was terminated on December
12, 2007.
4. Plaintiff speaks Spanish and has limited English
proficiency.
5. FPF owns and operates a turkey plant which is in the

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business of packaging turkeys for consumer purchase in

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supermarkets and other retail outlets.

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6. Defendant’s turkey plant operations employ approximately
1,300 employees.
7. It is undisputed that Defendant is an employer covered by
the FMLA.
8. It is undisputed that Plaintiff worked more than 1,250

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The following background facts are taken from the parties’
submissions in connection with the motions and other documents on
file in this case. The parties have filed various evidentiary
objections to the evidence submitted in support of their
adversary’s motion for summary judgment. Except as noted, no
objected-to evidence was considered and/or the information could
be found from other sources that did not give rise to evidentiary
issues. Except as noted, the parties’ evidentiary objections are
moot.
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hours prior to her time off in November 2007.
B.

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DISPUTED FACTS
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Serious Medical Condition.4

9. During November and December 2007 Plaintiff asserts that

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her father, Mr. Merlos, had multiple serious and chronic health

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conditions involving continuing treatment, including the

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following: diabetes, hypothyroidism, chronic adult malnutrition,

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arterial hypertension, pneumonia, urinary tract infection,

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anemia, benign prostate hyperplasia and chronic prostate

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inflammation.
10. Plaintiff states that in November and December, 2007

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while she was present in Guatemala with her father, she observed

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that he was in the hospital more than three days, that he was

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sick, weak, that he suffered continuing pain and discomfort.

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11. Further, that he had significant difficulty urinating

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and underwent surgery on his prostate. Plaintiff saw his surgical

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scar.

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12. Mr. Merlos, who was in his eighties, was evaluated and

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treated by at least four different doctors, Dr. Perez, Dr.

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Davila, Dr. Alvarez, and Dr. Maulhardt for multiple illnesses

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between November 25, 2007 and December 27, 2007.

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2.

Plaintiff’s November 19, 2007 Leave Request And
Termination.

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13. On November 16, 2007, Plaintiff received a phone call
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Defendant’s evidentiary objections to the medical notes
and declarations of various Guatemalan doctors provided by
Plaintiff are discussed under “Evidentiary Objections.”
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from her niece informing her of her father’s deteriorating

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condition.

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14. That same day Plaintiff arranged for purchase of a plane
ticket to Guatemala.
15. On the next business day, November 19, 2007, Plaintiff

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asked her supervisor, Linda Mendoza5, for leave to fly to

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Guatemala because her father was ill.

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16. On November 21, 2007, Ms. Mendoza told Plaintiff that

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Plaintiff was entitled to two weeks of vacation, from November

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26, 2007 to December 9, 2007.
17. The content of the conversation between Ms. Mendoza and
Plaintiff on November 21, 2007 is disputed.
18. Defendant asserts that Ms. Mendoza was concerned that

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two weeks may not be enough time for Plaintiff and wanted to

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ensure there were no misunderstandings, so she asked fellow

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employee Alfonso Flores to translate.

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19. Ms. Mendoza asked Mr. Flores to inquire as to whether

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Plaintiff needed more than two weeks leave. Specifically, whether

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she wanted medical leave time off after her vacation.6

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20. Mr. Flores testified that he asked Plaintiff twice and
both times she answered that she did not want more time.

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Linda Mendoza does not speak Spanish.

Plaintiff objects to Mr. Flores’ deposition testimony as
hearsay. (Doc. 58, Plt’s Resp. to Def’‘s UDF at 14.) The
testimony is not considered to prove the matter asserted. See FRE
802. The testimony is offered to show that a dispute regarding a
material issue of fact exists regarding whether there was a
conversation with Mr. Flores and as to what Plaintiff said about
how much time off she requested.
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21. Mr. Flores further testified that he told Plaintiff if
she needed more time, she must to go to HR.
22. Plaintiff states that no such conversation took place

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and that Mr. Flores was never present during her discussions with

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Ms. Mendoza.

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23. Plaintiff asserts that, in fact, she requested more time
from Ms. Mendoza and Ms. Mendoza refused.

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24. Plaintiff states that Ms. Mendoza may have told her to

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go to HR, but that this directive was given in English, and not

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Spanish, Plaintiff’s language.
25. Plaintiff told Ms. Mendoza if she needed more time, she

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would have her father’s doctor fax a note, to which Ms. Mendoza

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did not respond.

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26. Later that same day, Plaintiff told plant

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superintendent, Edward Mendoza7, that she was using two weeks

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vacation to go to Guatemala because her father was ill in the

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hospital. Undisputed.

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27. Plaintiff later told another supervisor, Moises Lemus,
that she needed to leave because her father was ill. Undisputed.
28. The parties dispute what was said between Mr. Mendoza
and Plaintiff.
29. Plaintiff asked Mr. Mendoza what to do in case she
needed to extend her leave.

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30. Plaintiff states that Mr. Mendoza responded by granting

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her permission to take indefinite leave when he stated, “Go, and

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when you come back, bring the doctor’s note.”

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Edward Mendoza does speak Spanish.
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31. Conversely, Mr. Mendoza testified that he told Plaintiff

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if she needed more time, she would have to call HR and they would

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ask her to send in a doctor’s certificate.8

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32. Defendant FPF accounted for the first two weeks of
Plaintiff’s time off as vacation.
33. None of the supervisors Plaintiff spoke to advised

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Plaintiff of her Family Leave rights and obligation before she

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left for Guatemala.

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34. Defendant did not request Plaintiff provide a medical

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certification by a certain date, nor did it inform her of the

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consequences of not doing so.

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35. Although Defendant did not inform Plaintiff of any

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obligations or procedures under FMLA or consequences of

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noncompliance, Defendant asserts Plaintiff knew of the procedure

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to obtain FMLA and CFRA leave as Plaintiff admits she obtained

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FMLA leave from FPF on twelve prior occasions.

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36. Of these approved Family leaves, nine were for

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Plaintiff’s personal health condition, and three were for a

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family member.9

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Plaintiff states that Mr. Mendoza’s testimony that
Plaintiff would need to go to HR is irrelevant. (Doc. 58, Plt’s
Response to Def.’s UDF No. 33 at 15.) Mr. Mendoza’s testimony has
a tendency to make the existence of a fact of consequence to the
determination of the action — namely, whether such a conversation
occurred and whether Plaintiff was given permission for
indefinite leave by Mr. Mendoza — more probable or less probable
than it would be without the evidence. See Fed. R. Evid. 401.
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Plaintiff objects to this information as irrelevant.
(Doc. 58, Plt’s Response to Def.’s UDF No. 14 at 7.) Plaintiff’s
prior FMLA leave has a tendency to make the existence of a fact
of consequence to the determination of the action — namely,
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37. Plaintiff stayed in Guatemala past her scheduled two
week leave.
38. Plaintiff claims in late November or early December she

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unsuccessfully attempted to call Defendant’s H.R. office from a

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public telephone in Guatemala.

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39. Plaintiff further claims she attempted to fax medical
certifications to Defendant.

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40. Neither the fax nor the call went through.

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41. There is no corroboration of either assertion.

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42. When Plaintiff did not come to work or call FPF within

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three days, Defendant terminated Plaintiff pursuant to the

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Union’s Collective Bargaining Agreement (“CBA”)10 which provides:

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4.3 An individual’s employment with the Employer shall
be terminated, and the employee . . . loses all
seniority, when any of the following occurs:
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4.3.4 The employee fails to report for work at
the end of a leave of absence unless such . . . failure
is due to circumstances beyond the employee’s control;
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4.3.7 The employee is absent for a period of
three (3) days in cases of emergency beyond the . . .
employee’s control, and fails to notify the Employer
and secure a leave of absence. (“Three Day Rule”)

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43. On or about December 26, Plaintiff faxed a medical

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whether Plaintiff knew how to provide FPF with sufficient notice
under FMLA — more probable or less probable than it would be
without the evidence. See Fed. R. Evid. 401.
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Plaintiff asserts the CBA and its terms are not relevant.
(Doc. 58, Plt’s Response to Def.’s UDF at 2.) The CBA has a
tendency to make the existence of a fact of consequence to the
determination of the action — namely, the terms applicable to
Plaintiff’s termination — more probable or less probable than it
would be without the evidence. See Fed. R. Evid. 401. The
language of the CBA is considered.
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certification from Dr. Alvarez regarding her father’s medical

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condition to Union Representative Carlos Valenzuela.

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44. FPF received the certification December 27, 2007.

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45. On January 2, 2008, Plaintiff gave Defendant Dr. Perez’s

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certification regarding her father’s health condition.

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3. Post-Termination Events.

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46. Defendant’s experienced labor relations manager, Jon

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Diaz, conducted an investigation to consider Plaintiff’s request

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for reinstatement.

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47. Defendant refused to reinstate Plaintiff.

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48. Plaintiff’s Union filed a Grievance on her behalf.

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49. A Board of Adjustment under the CBA upheld Plaintiff’s

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termination.

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50. The vote was 4-0 to uphold termination.

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51. Plaintiff challenged the Union’s decision not to

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arbitrate the Grievance before the NLRB.11

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52. The NLRB upheld the Union’s decision.

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53. Plaintiff did not file a timely appeal.

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54. Plaintiff filed a claim for unemployment benefits.

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55. A hearing was held to determine whether Plaintiff

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voluntarily left her job with Defendant without good cause and

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whether Plaintiff provided E.D.D. with the documents required to

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Plaintiff asserts the challenge of the Union’s decision
is not relevant. (Doc. 58, Plt’s Response to Def.’s UDF Nos 40-41
at 17.) Plaintiff’s challenge has a tendency to make the
existence of a fact of consequence to the determination of the
action — namely, whether Plaintiff’s termination was done
maliciously for punitive damages purposes — more probable or less
probable than it would be without the evidence. See Fed. R. Evid.
401.
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establish her identity.
56. At the Unemployment Insurance hearing, Plaintiff

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testified in response to questions by the administrative law

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judge that she knew that the employer policy was that if she

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missed three consecutive working days without reporting, she

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would be terminated. However, she later testified that she had

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relied on the “word” of Mr. Mendoza, who allegedly gave her

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permission to stay indefinitely in Guatemala.

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57. FPF, at the time of the Unemployment Insurance appeal,

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did not dispute Plaintiff’s father’s serious medical condition or

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question the doctor’s certifications.

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3. Plaintiff’s Claim for Wages Owed.

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58. Plaintiff asserts that Defendant did not pay her final

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wages or for any time off until March 3, 2010, after Plaintiff

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filed this lawsuit.

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59. Whether there was any settlement concerning payment of

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unpaid wages and related amounts still owed to Plaintiff at the

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time she filed this lawsuit, remains disputed, as does any

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entitlement to attorneys’ fees respecting those claims.

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III. EVIDENTIARY OBJECTIONS TO PLAINTIFF’S MEDICAL EVIDENCE

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Plaintiff’s declaration describes that in November and

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December, 2007 while she was present in Guatemala with her

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father, she observed that he was in the hospital more than three

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days, that he was sick, weak, that he suffered continuing pain

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and discomfort. (Doc. 63, Decl. Terman, Ex. A, Decl. Escriba at

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¶¶ 8-10.) That he had significant difficulty urinating and

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underwent surgery on his prostate. (Id. at ¶¶ 8-9.) Plaintiff saw
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the surgical scar. (Id. at ¶ 9.) Her testimony of her personal

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knowledge to establish that her father had a prostate operation

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is supplemented by testimony and medical notes from an attending

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physician, describing the nature of the surgery and some of the

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consequences of the benign prostate hyperplasia condition. (See

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Doc. 63, Decl. Terman, Ex. E, F, G, H, I, J, K.)

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Defendant objects to the medical evidence. Plaintiff offers

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the documents as self-authenticating under Fed. Rule of Evid.

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(“FRE”) 902(3), (4), (8), and/or (12). Alternatively, Plaintiff

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asserts the objections can be overcome by the residual hearsay

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exception, FRE 807.

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The documents do not meet the asserted exceptions under Rule

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902. No person making any certification does so in an official

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capacity under the laws of Guatemala to make the execution or

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attestation nor to finally certify the genuineness of the

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documents.

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certified copies of public records. See 902(4). The documents are

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not acknowledged under Rule 902(8). They are not accompanied by a

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certificate of acknowledgment executed in the manner provided by

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law by a notary public or other officer authorized by law to take

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acknowledgments. They do not meet Rule 902(12) as these are not

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the original or duplicate of a certified foreign record of

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regularly conducted activity that would be admissible under FRE

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803(6). There is no accompaniment of a written declaration by its

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custodian or “other qualified person” certifying that the

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documents:

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See 902(3). These documents are not offered as

(a) were made at or near the time of the occurrence of the
matter set forth or from information transmitted by a person with
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knowledge of the matters;
(b) were kept in the course of the regularly conducted
activity; and
(c) were made by the regularly conducted activity as a
regular practice.
See Rule 902(12). None of these requirements are strictly
satisfied.
Plaintiff invokes FRE 807, the residual trustworthiness
exception, maintaining that there are equivalent circumstantial

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guarantees of trustworthiness to prevent exclusion by the hearsay

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rule of the doctors’ notes and other medical records. The

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statements offered as evidence are of material facts; to wit, the

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description of Mr. Merlos’ medical condition, treatment, and

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duration of various illnesses suffered by him. FRE 807(A). These

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statements are more probative on the point for which offered than

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any other evidence which the proponent can procure through

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reasonable efforts; i.e., depositions in the country of Guatemala

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or special questions by deposition upon written interrogatories

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and/or other discovery which would be required to be conducted

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through letters rogatory or a request for international judicial

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assistance through the Court system of Guatemala. FRE 807(B). The

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time, expense, and effort required in view of the absence of a

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real and bonafide controversy over the medical condition of the

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father, do not justify such effort and expense. Here, there is no

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genuine dispute over the medical condition of Mr. Merlos in light

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of FPF’s duty to inquire further about the “illness,” if FPF had

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a question (see 29 CFR § 825.303(b)) and Defendant’s admission at

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the Unemployment Insurance hearing (see doc. 43, Decl. Terman,
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Ex. R at 34:1-3.) The interests of justice will best be served by

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admission of the statements into evidence. FRE 807(C).

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Plaintiff has made known to Defendant sufficiently in

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advance of the hearing the evidence sought to be adduced to

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provide Defendant with a fair opportunity to meet Plaintiff’s

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invocation of the residual exception. Id. The Defendant’s

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response has been to invoke hypertechnical evidentiary objections

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which do not advance the interests of justice or the progress of

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this litigation. The residual exception is satisfied, the

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evidence of the doctor’s notes and declarations will be

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considered.

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IV. LAW AND ANALYSIS

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A.

STANDARD OF DECISION

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Summary judgment/adjudication is appropriate when "the

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pleadings, the discovery and disclosure materials on file, and

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any affidavits show that there is no genuine issue as to any

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material fact and that the movant is entitled to judgment as a

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matter of law." Fed. R. Civ. P. 56(c).

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the initial responsibility of informing the district court of the

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basis for its motion, and identifying those portions of the

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pleadings, depositions, answers to interrogatories, and

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admissions on file, together with the affidavits, if any, which

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it believes demonstrate the absence of a genuine issue of

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material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323

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(1986) (internal quotation marks omitted).

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The movant "always bears

Where the movant will have the burden of proof on an issue
at trial, it must "affirmatively demonstrate that no reasonable
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trier of fact could find other than for the moving party."

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Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th

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Cir.2007).

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party will have the burden of proof, the movant "can prevail

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merely by pointing out that there is an absence of evidence to

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support the nonmoving party's case."

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With respect to an issue as to which the non-moving

Soremekun, 509 F.3d at 984.

When a motion for summary judgment is properly made and

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supported, the non-movant cannot defeat the motion by resting

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upon the allegations or denials of its own pleading, rather the

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“non-moving party must set forth, by affidavit or as otherwise

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provided in Rule 56, ‘specific facts showing that there is a

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genuine issue for trial.’”

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Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)). “A

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non-movant's bald assertions or a mere scintilla of evidence in

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his favor are both insufficient to withstand summary judgment.”

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FTC v. Stefanchik, 559 F.3d 924, 929 (9th Cir. 2009).

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non-movant must show a genuine issue of material fact by

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presenting affirmative evidence from which a jury could find in

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his favor.” Id. (emphasis in original). "[S]ummary judgment will

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not lie if [a] dispute about a material fact is ‘genuine,’ that

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is, if the evidence is such that a reasonable jury could return a

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verdict for the nonmoving party."

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determining whether a genuine dispute exists, a district court

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does not make credibility determinations; rather, the "evidence

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of the non-movant is to be believed, and all justifiable

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inferences are to be drawn in his favor."

Soremekun, 509 F.3d at 984. (quoting

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“[A]

Anderson, 477 U.S. at 248.

Id. at 255.

In

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B. FMLA LEAVE ENTITLEMENT.12

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The FMLA provides job security and leave entitlements for

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employees who need to take absences from work for personal

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medical reasons, to care for their newborn babies, or to care for

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family members with serious illnesses. 29 U.S.C. § 2612. The FMLA

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entitles qualifying employees to take unpaid leave for up to 12

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weeks each year provided they have worked for the covered

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employer for 12 months. 29 U.S.C. § 2612(a).

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The FMLA creates two interrelated substantive rights for

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employees. Xin Liu v. Amway Corp., 347 F.3d 1125, 1132-33 (9th

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Cir. 2003). First, an employee has the right to take up to twelve

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weeks of leave for the reasons described above. 29 U.S.C. §

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2612(a). Second, an employee who takes FMLA leave has the right

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to be restored to his or her original position or to a position

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equivalent in benefits, pay, and conditions of employment upon

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return from leave. 29 U.S.C. § 2614(a).

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To protect the employee, the FMLA prohibits interference

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with the exercise of the employee’s right to take leave. 29

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U.S.C. § 2615(a).“It shall be unlawful for any employer to

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interfere with, restrain, or deny the exercise of or the attempt

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to exercise, any right provided under this title.” 29 U.S.C. §

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2615(a)(1).

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Congress has authorized the Department of Labor (“DOL”) to

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The FMLA was amended in 2008, and the DOL revised its
implementing regulations effective 2009. Nat’l Defense Auth. Act
Pub. L. No. 110-181, Sec. 585 (2008); 73 Fed. Reg. 67934 (Nov.
17, 2008). The events giving rise to Plaintiff’s complaint
occurred prior to these amendments and revisions. All references
are to the prior version of the FMLA and its 1995 regulations.
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issue implementing regulations for the FMLA. 29 U.S.C. § 2654.

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These regulations are entitled to deference under Chevron USA,

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Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837,

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843-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); Bachelder v. Am.

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W. Airlines, Inc., 259 F.3d 1112, 1123 n. 9 (9th Cir. 2001). DOL

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regulations state that “[t]he FMLA prohibits interference with an

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employee’s rights under the law.” 29 C.F.R. § 825.220(a). Any

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violation of the FMLA itself or of the DOL regulations constitute

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interference with an employee’s rights under the FMLA. 29 C.F.R.

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§ 825.220(b). The DOL interprets “interference” to include “not

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only refusing to authorize FMLA leave, but discouraging an

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employee from using such leave.” Id. The regulations specify one

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form of employer interference: “employers cannot use the taking

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of FMLA leave as a negative factor in employment actions.” 29

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C.F.R. § 825.220(c).

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Under the FMLA, 29 U.S.C. § 2601, et seq., the employee must

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establish: (1) she was eligible for the FMLA’s protections, (2)

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her employer was covered by the FMLA, (3) she was entitled to

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leave under the FMLA, (4) she provided sufficient notice of her

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intent to take leave, and (5) her employer denied her FMLA

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benefits to which she was entitled. Sanders v. City of Newport, —

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F.3d —, 08-35996, 2011 WL 905998, *5 (9th Cir. Mar. 17, 2011)

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(citing Burnett v. LFW Inc., 472 F.3d 471, 477 (7th Cir.2006)).

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The parties agree: (1) Plaintiff was eligible for the FMLA’s
protections. (2) FPF is covered by the FMLA.
1.

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Plaintiff’s Entitlement To Take Leave To Care For
Her Father Who Suffered From A “Serious Medical
Condition.”

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The FMLA entitles employees to take 12 weeks off from work,
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with or without pay “in order to care for the. . . parent of the

2

employee, if such. . . parent has a serious health condition.” 29

3

U.S.C. § 2612(a)(1)(C). A “serious health condition” is an

4

illness, injury, impairment, or physical or mental condition that

5

involves:

6

(A)

7

inpatient care in a hospital, hospice, or residential
medical care facility; or

8

(B)

9

29 U.S.C. § 2611(11).

10

continuing treatment by a health care provider.

The parties have a significant dispute over the nature and

11

extent of the evidence and the admissibility of the medical

12

testimony concerning the medical condition of Plaintiff’s father,

13

Mr. Merlos. This dispute is resolved and Plaintiff’s medical

14

evidence is admissible and considered.

15

Aside from evidentiary objections, Defendant disputes

16

generally that Mr. Merlos had a serious medical condition, but

17

offers no contrary evidence. See Fed. Rules of Civ. Pro. 56(c).

18

Summary adjudication regarding serious medical condition is

19

GRANTED to Plaintiff.

20
21
22

2.

Adequate Notice.
i.

Whether Plaintiff Gave Notice Of Her Need For
FMLA-Qualifiying Leave On November 19th,2007.

23
24

The FMLA regulations set out two notice requirements: the

25

plaintiff must show that her notice was timely. 29 C.F.R. §

26

825.303(a). And, the notice must have been “sufficient to make

27

the employer aware that the employee needs FMLA qualifying leave,

28

and the anticipated timing and duration of the leave.” 29 C.F.R.
17

1

§ 825.302(c). Once an employee invokes her FMLA rights by

2

alerting her employer to her need for potentially qualifying

3

leave, the regulations shift the burden to the employer to take

4

certain affirmative steps to process the leave request. 29 C.F.R.

5

§ 825.303(b).

6

Plaintiff asserts that her November 19th notice was timely

7

and that her statements to various FPF supervisors constitute

8

sufficient notice. Defendant asserts that notice was not timely

9

or sufficient. Specifically, Defendant contends that Plaintiff’s

10

leave was foreseeable, subjecting her to the FMLA’s 30 days

11

advance notice requirement. Defendant further argues Plaintiff’s

12

notice was not sufficient because she did not properly follow

13

FPF’s leave policies and procedures, despite invoking Family

14

Leave under the FMLA and/or the CFRA pursuant to PFP policy on

15

twelve prior occasions.

16

a. Timeliness

17

“An employee must provide the employer at least 30 days

18

advance notice before FMLA leave is to begin if the need for the

19

leave is foreseeable.” 29 CFR § 825.302(a). When the need for

20

leave is not known in advance, “an employee should give notice to

21

the employer of the need for FMLA leave as soon as practicable

22

under the facts and circumstances of the particular case.” 29

23

C.F.R. § 825.303(a). Under these circumstances, “[i]t is expected

24

that an employee will give notice to the employer within no more

25

than one or two working days of learning of the need for leave,

26

except in extraordinary circumstances where such notice is not

27

feasible.” Id.

28

Defendant asserts that Plaintiff’s November 19, 2007 request
18

1

for leave was foreseeable and Plaintiff should have provided 30

2

days notice as required under 29 CFR § 825.302. Defendant argues,

3

assuming Mr. Merlos had a serious medical condition, Mr. Merlos’

4

serious condition existed in October 2007 and did not become

5

serious in November, as Plaintiff states. Because the serious

6

condition was known to Plaintiff in October, Plaintiff should

7

have requested leave at that time.

8

Plaintiff’s father only saw his medical provider one time,
on October 22, 2007.

9
. . .
10
11
12
13

Plaintiff contends that the need for leave was unforeseeable
and that her father took a turn for the worse on November
16th, 2007. However, there is no evidence. . . that
indicates anything happened with her father’s condition
between October 22, 2007 and December 22, 2007, so if the
trip was needed on November 16, 2007 it was based on [her]
father’s condition in October.

14
(Doc. 51, Def.’s Oppo. at 24.)13
15
Defendant’s argument that Mr. Merlos’ condition did not
16
“take a turn for the worse” in November is contradicted by
17
Defendant’s admission in the Unemployment Insurance hearing that
18
FPF did not question Plaintiff’s need for leave on November 19th
19
to care for her father and Defendant’s duty to inquire further if
20
it had a question regarding the designation of leave. 29 CFR
21
825.303(b). However, if Mr. Merlos’ condition was serious and
22
23
24
25
26
27
28

13

Plaintiff asserts whether she provided documentation
regarding her father’s medical condition between October 22, 2007
and December 22, 2007 is irrelevant. (Doc. 58, Plt’s Response to
Def.’s UDF No. 61 at 26.) The documentation has a tendency to
make the existence of a fact of consequence to the determination
of the action — namely, the timing of Mr. Merlos’ serious medical
condition — more probable or less probable than it would be
without the evidence. See Fed. R. Evid. 401.
19

1

Plaintiff knew this before November, the timeliness of

2

Plaintiff’s November 19th notice remains unclear. A disputed

3

issue of material fact exists on the timeliness of Plaintiff’s

4

notice of need for leave. Summary adjudication on this issue is

5

DENIED.

6
7

b.

Content of Notice

Whether the notice a Plaintiff provides is practical in

8

terms of its content depends on the facts and circumstances of

9

each individual case. 29 CFR § 825.303(a). Generally, whether the

10

notice is adequate is a question of fact. See, e.g., Mora v.

11

Chem-Tronics, Inc., 16 F. Supp. 2d 1192, 1209 (S.D. Cal. 1998)

12

(citing Hopson v. Quitman County Hosp. & Nursing Home, Inc., 126

13

F.3d 635 (5th Cir.1997) (“[s]uch determinations are question of

14

fact and better left to the jury with its traditional function of

15

assessing human behavior and expectations”)). Hence, even if

16

there is undisputed evidence, rational triers of fact could

17

nevertheless differ on whether the notice was adequate.

18

Satterfield v. Wal-Mart Stores, Inc., 135 F.3d 973, 976 (5th

19

Cir.1998).

20

The notice must have been “sufficient to make the employer

21

aware that the employee needs FMLA qualifying leave, and the

22

anticipated timing and duration of the leave.” 29 C.F.R. §

23

825.303(c); Amway Corp., 347 F.3d at 1134. Plaintiff need not

24

show that she expressly asserted rights under FMLA or even

25

mentioned FMLA, but that she stated leave was needed for a

26

potential FMLA-qualified reason. Id. As a general rule, “[t]he

27

critical question is whether the information imparted to the

28

employer is sufficient to reasonably apprise it of the employee’s
20

1

request to take time off for a serious health condition.” Mora,

2

16 F. Supp. 2d at 1209 (quoting Manuel v. Westlake Polymers

3

Corp., 66 F.3d 758, 764 (5th Cir. 1995)). The employer is then

4

“expected to obtain any additional required information through

5

informal means.” Id.

6

Citing Greenwell v. State Farm Mutual Automobile Ins. Co.,

7

486 F.3d 840 (5th Cir.2007), Defendant argues that the general

8

rule does not apply here because Plaintiff had sophisticated

9

knowledge of the FPF’s FMLA process based on her prior experience

10

in taking leave on twelve occasions. In Greenwell, an employee

11

took leave to tend to her sick child. When she called her

12

supervisor she stated that the child had fallen and was scared

13

and bruised and she needed to take leave. Id. at 841. The

14

plaintiff’s supervisor allegedly mentioned FMLA but did not

15

request documentation. Id. When the plaintiff returned to work

16

she chose not to request FMLA protection for her absence because

17

she did not have medical documentation. Id. She was terminated

18

based on her absence. Id.

19

The Fifth Circuit addressed whether the plaintiff’s notice

20

sufficiently expressed that her need for leave was based on a

21

serious medical condition. Id. at 842-44. The court found that

22

the plaintiff’s communication with her supervisor did not

23

sufficiently connect her absence to a medical condition rising to

24

the level of seriousness protected under FMLA. Id. at 844. The

25

plaintiff's son had asthma, which is an FMLA qualifying

26

condition, but the plaintiff did not tell her supervisor that his

27

asthma was the reason she needed leave. Id. at 843. After the

28

plaintiff returned from her leave, her supervisor told her to
21

1

clear her absence through FMLA by providing medical

2

documentation. Id. The plaintiff refused to provide the

3

documentation, arguing that the employer already had sufficient

4

documentation of her son’s asthma from two prior leaves she had

5

taken under the FMLA. Id. The court found her failure to give

6

medical documentation further supported the employer’s argument

7

that she failed to give sufficient FMLA-notice. Id. The court

8

held that “[w]ithout sufficient notice specific to her son’s

9

condition ... State Farm lacked the information to determine

10

whether [the plaintiff’s] absence qualified for FMLA protection.”

11

Id. at 844.

12

Greenwell is distinguishable. There, notice was insufficient

13

because it failed to identify the son’s asthma as the reason for

14

the absence, and the plaintiff also chose not to provide medical

15

documentation, which coincidently violated the employer’s express

16

policy. These circumstances were insufficient to provide the

17

employer notice to make a determination of whether the leave was

18

FMLA qualifying.

19

The fact that Plaintiff, here, knew Defendant’s FMLA

20

procedures does not excuse FPF’s obligation to inquire further as

21

to the reason for Plaintiff’s leave. It is the employer’s

22

obligation to designate whether leave is FMLA qualifying “in all

23

circumstances” regardless of the employee’s knowledge of the FMLA

24

procedures. See 29 C.F.R. § 825.208(a). Defendant admits that

25

Plaintiff stated to, at least, her direct supervisor, Linda

26

Mendoza, that she needed leave in order to care for her sick

27

father in Guatemala. (Doc. 63, Decl. Terman, Ex. L, Plt’s Dep. at

28

65:1-12.) This is triggered Defendant’s obligation to inquire
22

1
2

further.
Once an employee invokes her FMLA rights by alerting her

3

employer to her need for potentially qualifying leave, the

4

regulations shift the burden to the employer to make further

5

inquiry if additional information is needed before the employer

6

can process the leave request. See 29 C.F.R. § 825.303(b) (“[T]he

7

employer should inquire further of the employee if it is

8

necessary to have more information about whether FMLA leave is

9

being sought ....”). “The employer will be expected to obtain any

10
11

additional required information through informal means.” Id.
Defendant asserts that it fulfilled its obligation to

12

inquire further; but that Plaintiff unequivocally declined to

13

invoke FMLA leave. After Plaintiff explained that she needed

14

leave to tend to her ill father in Guatemala, Defendant asserts

15

further inquiry was completed when Plaintiff’s direct supervisor

16

Linda Mendoza then asked twice through translator, Alfonso

17

Flores, whether Plaintiff wanted medical leave time off following

18

her “vacation.” Mr. Flores testified at his deposition:

19

Q: Linda Mendoza came into your office and asked you to come

20

into hers; is that right?

21

A. Yes.

22

Q. And then she said what?

23

A. ‘Can you do me a favor? I need you to translate to Maria

24

[Plaintiff] to make sure she understands in her language.’

25

Q. And what was it that she asked you to translate?

26

A. If Maria needs time off.

27

Q. Time off?

28

A. Medical leave time off.
23

1

. . .

2

Q. And Maria said no?

3

A. Yes.

4

. . .

5

Q. Maria said, ‘No’ twice?

6

A. Yes.

7

Q. And then you said Linda says, ‘Tell her if she needs more

8

time, she needs to go to HR’?

9

A. Yes.

10

Q. And did you translate that part?

11

A. Yes.

12

(Doc. 59, Decl. Skol, Ex. O, Alfonso Dep., 24:15-24; 25:17-

13 18, 24-25; 26:1-5).
14

Defendant contends that during this inquiry Plaintiff could

15

have, yet did not, assert her right to medical leave either for

16

her scheduled two week leave or for anytime following. Plaintiff

17

denies that Mr. Flores was present during her conversation with

18

Linda Mendoza and denies this conversation ever took place.

19

(Doc. 63, Decl. Terman, Ex. L, Plt.’s Dep., 67:5-16.) This

20

hearsay testimony is admissible to show there was an alleged

21

conversation, which Plaintiff disputes. Plaintiff asserts that

22

she did request more time from Linda Mendoza and was refused.

23

(Id. at 65:1-12.) This conflicting testimony creates a triable

24

issue of material fact whether notice was sufficient and as to

25

the extent of FPF’s inquiry into whether Plaintiff was invoking

26

FMLA leave for her father’s serious medical condition.

27
28

Plaintiff testified that she spoke to two other supervisors
regarding her leave, but that neither made further inquiry into
24

1

the nature or designation of her leave. (Doc. 63, Decl. Terman,

2

Ex. L, Plt.’s Dep., 68:8-15; Ex. S, Moises Lemus Dep., 22:14-18.)

3

Plaintiff cites no authority which requires that every

4

supervisor, including those who are not her direct supervisors,

5

inquire into her leave. Disputed questions of material fact

6

remain about all the circumstances of her leave request, its

7

adequacy, and sufficiency of notice to both FPF and Plaintiff.

8

Summary adjudication on the Defendant’s compliance with its duty

9

of inquiry under § 825.303(b) is DENIED.

10
11

2.

Whether The CBA Three Day Rule Justified
Plaintiff’s Termination

12
Defendant argues whether or not Plaintiff’s November 19th
13
leave request was sufficient, FPF was “well within its rights to
14
terminate Plaintiff according to its standard leave procedures.”
15
Plaintiff argues that her November 19th notice was sufficient to
16
cover the two weeks initially requested and the indefinite period
17
after, or, in the alternative, Mr. Mendoza “gave [Plaintiff]
18
permission to take more time so long as she returned from
19
Guatemala with a note from her father’s doctor.”
20
Applicable regulations state that, when leave is needed, an
21
employee must give her employer notice about the “anticipated
22
timing and duration of the leave.” 29 C.F.R. § 825.302(c).
23
“[N]otice need only be given one time, but the employee shall
24
advise the employer as soon as practicable if dates of scheduled
25
leave change [] are extended, or were initially unknown.”

29

26
C.F.R. § 825.302(a). “As soon as practicable” means “within no
27
more than one or two working days of learning of the need for
28
25

1

leave.” Id. However, “an employer [may] impose[] lesser notice

2

requirements on employees.” CFR 825.302(g).

3

Assuming arguendo that Plaintiff’s original November 19th

4

notice was given as she describes it, she contends that her

5

initial notice covered her two week scheduled leave and the

6

indefinite period after. Plaintiff’s argument is unpersuasive.

7

The regulations require that an employee keep the employer

8

abreast of changing circumstances.

9

825.302, 825.303. This is consistent with the FMLA’s purpose to

10

achieve a balance that reflects the needs of both employees and

11

their employers. 29 U.S.C. § 2601; Sanders v. City of Newport, —

12

F.3d. —, 08-35996, 2011 WL 905998 (9th Cir. Mar. 17, 2011); see

13

also Collins v. NTN–Bower Corp., 272 F.3d 1006, 1008 (7th

14

Cir.2001) (“[employers are] entitled to the sort of notice that

15

will inform them not only that the FMLA may apply but also when a

16

given employee will return to work.”)). During her scheduled two

17

week leave, Plaintiff learned she would need extended time to

18

care for her father. (See Doc. 43, Decl. Terman, Ex. R, 25:13-17)

19

(“On the 5th of December. That’s when I saw that my dad was very

20

ill and I couldn’t come back.”) By not contacting FPF within

21

either the FMLA’s two working days requirement or, at a minimum,

22

the CBA three day requirement, Plaintiff did not provide timely

23

notice of her need to take additional FMLA leave. Aside from

24

Plaintiff’s self-serving and uncorroborated assertion that she

25

made one failed attempt at a phone call and to send a fax,

26

Plaintiff made no other effort to keep FPF apprised of her need

27

for leave, and was absent without notice to FPF for approximately

28

three weeks after her scheduled leave ended.
26

See e.g., 29 CFR §§ 825.208,

1

Plaintiff rejoins that FPF imposed a lesser notice

2

requirement on her; i.e., neither the FMLA requirement nor the

3

Three Day Rule applied, because Edward Mendoza allegedly gave

4

Plaintiff permission to stay in Guatemala indefinitely if she

5

returned with a doctor’s note.14

6
7
8

I believed that I had been told by Eddie Mendoza that I
could go to Guatemala, using my two weeks of vacation, and
if I needed more time than that, I could return with a note
from my father’s doctor, and that I could then return to my
job.

9
(Doc. 63, Decl. Terman, Ex. A, Decl. Plt. at ¶ 11.)
10
Defendant argues each of the supervisors Plaintiff spoke
11
with informed her that if she wished to extend her time, she must
12
do so by contacting HR. Defendant invokes Plaintiff’s knowledge
13
of the Three Day Rule and its application as well as FMLA’s
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

14

Defendant asserts that Plaintiff’s declaration is a
”sham” because her declaration “contradicts earlier sworn
testimony.” (Doc. 72, Def.’s Reply at 4.) Specifically,
Defendant states that Plaintiff’s declaration contradicts her
under-oath statements from the Unemployment Insurance hearing
that she was aware of the Three Day Rule, but did not abide by
it. (Id.) Notably, Defendant asserts this argument for the first
time in its Reply, does not provide a full legal analysis, and
does not provide a complete description of Plaintiff’s testimony
at the Unemployment Insurance hearing.
Not every instance of testimonial contradiction is a sham.
Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 267 (9th Cir.
1991). A declaration is a “sham” only when it “flatly contradicts
earlier testimony in an attempt to ‘create’ an issue of fact and
avoid summary judgment.” Id.(emphasis added.) While Plaintiff did
state at the Unemployment Insurance hearing that she was aware of
the Three Day Rule and its application, she also stated that she
relied on the “word” of Edward Mendoza who purportedly allowed
her indefinite leave. (See Doc. 43, Decl Terman, Ex. R at 32:710.) Her declaration does not “flatly contradict” her
Unemployment Insurance hearing testimony and her declaration is
not excluded as a sham.
27

1

procedures and obligations she had previously invoked to use

2

medical leave on twelve prior occasions, on which she followed

3

the correct procedures. The parties’ dispute on the issue of the

4

Three Day Rule’s application creates a triable dispute of

5

material fact. Summary adjudication on this issue is DENIED.

6
7

C. PLAINTIFF’S CLAIMS

8

1.

9

Under DOL regulations, the mischaracterization of

Interference (First and Third Claim)

10

Plaintiff’s FMLA leave as personal leave qualifies as

11

“interference” with her leave. A violation of the FMLA simply

12

requires that the employer deny the employee’s entitlement to

13

FMLA leave. 29 C.F.R. § 825.220(a)(1) & (b); Amway Corp., 347

14

F.3d at 1135. A violation of the FMLA simply requires that the

15

employer deny the employee’s entitlement to FMLA leave. Id. When

16

an employer fails in its responsibility to assess an employee’s

17

entitlement to FMLA leave it denies that employee a substantive

18

right under FMLA. Denial of an employee’s right to FMLA leave

19

violates the FMLA. Amway Corp., 347 F.3d at 1135.

20

Assuming arguendo that FMLA applies, Defendant argues that

21

Plaintiff was not ultimately denied FMLA rights because there was

22

no practical distinction between the personal leave she was

23

granted and the FMLA leave to which she was entitled; i.e.,

24

because Plaintiff was ultimately allowed two weeks of vacation no

25

injury resulted from its designation as vacation leave. Plaintiff

26

asserts that as a result of Defendant’s mischaracterization of

27

her November 19th request, she was not provided with proper

28

notice of her obligations and she cannot be charged with
28

1

violating those obligations. Instead, Plaintiff relied on Edward

2

Mendoza’s alleged permission for indefinite leave which resulted

3

in her termination.

4

Assuming FMLA’s application, the parties dispute still

5

creates a triable issue of material fact. Defendant’s motion for

6

summary judgment is DENIED on the first interference claim.
“Discrimination”15 (Second and Fourth Claim)

7

2.

8

Under the FMLA, it is unlawful for an employer to “‘use the

9

taking of FMLA leave as a negative factor in employment actions,

10

such as hiring, promotions or disciplinary actions.’” Bachelder,

11

259 F.3d at 1122 (quoting 29 C.F.R. § 825.220(c)). Under Ninth

12

Circuit case law, if an employer uses an employee’s taking of

13

FMLA leave as a “negative factor” to make “adverse employment

14

decisions,” including termination, the employer interferes with

15

the employee’s exercise of FMLA rights in violation of §

16

2615(a)(1). Bachelder, 259 F.3d at 1122-23; see also Amway, 347

17
18
15

19
20
21
22
23
24
25
26
27
28

Plaintiff asserts “discrimination” under FMLA. “[W]here
an employee is punished for opposing unlawful practices by the
employer, the issue [] becomes one of discrimination and
retaliation.” Amway Corp., 347 F.3d at 1136 (citing Diaz v. Fort
Wayne Corp., 131 F.3d 711, 712 (7th Cir.1997). On the other hand,
“FMLA [interference] claims ‘do not depend on discrimination’
since the issue is not that ‘the employer treated one employee
worse than another’ but that every employee has substantive
rights under FMLA that the employer must respect.” Id.
Plaintiff’s complaint states, “Defendant discriminated against
[P]laintiff by discharging her when she exercised her right to
take FMLA leave.” (FAC ¶ 69.) Plaintiff’s assertions do not meet
the requirements of a FMLA discrimination claim. Rather,
Plaintiff’s “discrimination” claim is an interference claim.
Specifically, Plaintiff’s second claim is, interference for
termination while on FMLA leave, as opposed to, discrimination
based on opposition to alleged unlawful practices.
29

1

F.3d at 1133 n. 7.

2

To establish an interference claim under the FMLA, a

3

plaintiff must show that (1) she took FMLA-protected leave; and

4

(2) it constituted a “negative factor” in an adverse employment

5

decision. Bachelder, 259 F.3d at 1125. A plaintiff “can prove

6

this claim, as one might any ordinary statutory claim, by using

7

either direct or circumstantial evidence, or both. No scheme

8

shifting the burden of production back and forth is required.”

9

Id. (internal citations omitted).

10

There is no question that Plaintiff's termination was an

11 adverse employment action. Material dispute remains as to whether
12 Plaintiff properly took FMLA-protected leave. The motion for
13 summary judgment on Plaintiff’s second interference claim is
14 DENIED.
15

3.

Failure to Prevent Discrimination Pursuant to Cal. Gov.
Code § 12940(k)(Fifth Claim)

16
The Ninth Circuit and California courts have recognized that
17
Cal. Govt.Code § 12940(k) (“FEHA”) creates an actionable
18
statutory tort for failure to take all reasonable steps necessary
19
to prevent discrimination, when such a tort is predicated upon a
20
specific factual finding that discrimination actually occurred.
21
See Kohler v. Inter-Tel Technologies, 244 F.3d 1167, 1174 n. 4
22
(9th Cir 2001); see also Trujillo v. North County Transit Dist.,
23
63 Cal.App. 4th 280, 286, 287-289 (1998). FEHA only prohibits
24
discrimination based on “sex, race or any other protected
25
characteristic.” 42 U.S.C. § 2000e-2(a)(1).
26
Defendant moves for summary judgment on Plaintiff’s claim
27
for failure to prevent discrimination, yet Plaintiff advances no
28
30

1 specific opposition to Defendant’s motion. Absent evidence to
2 support a claim Plaintiff was discriminated against because of
3 her race, gender, or other FEHA-protected characteristic, summary
4 judgment for Defendant on the fifth cause of action is GRANTED.
5

4.

Wrongful Termination In Violation Of Public Policy
(Sixth Claim)

6
Under California law, employment is at-will unless the
7
parties contract otherwise. See Cal. Lab. Code § 2922. California
8
courts, however, have carved out a specific exception to this
9
general rule: an employer will be liable if it terminates an
10
employee in violation of public policy. See Stevenson v. Superior
11
Court, 16 Cal.4th 880, 66 Cal.Rptr.2d 888 (1997).
12
Stevenson requires four factors to establish a public policy
13
violation as the basis for a wrongful discharge claim:
14
15
16
17

First, the policy must be supported by either constitutional
or statutory provisions. Second, the policy must be ‘public’
in the sense that it ‘inures to the benefit of the public’
rather than serving merely the interests of the individual.
Third, the policy must have been articulated at the time of
the discharge. Fourth, the policy must be ‘fundamental’ and
‘substantial.’

18
Id. at 889-90, 66 Cal.Rptr.2d 888; see also Gantt v. Sentry
19
Insurance, 1 Cal.4th 1083, 1095, 4 Cal.Rptr.2d 874 (1992)
20
(overruled on other grounds by Green v. Ralee Eng'g Co., 19
21
Cal.4th 66, 90, 78 Cal.Rptr.2d 16(1998)).
22
Discharge in violation of the CFRA has been held, as a
23
matter of law, to constitute wrongful discharge in violation of
24
public policy. See Nelson v. United Technologies, 74 Cal.App.4th
25
597, 612, 88 Cal.Rptr.2d 239 (1999); see also Moreau v. Air
26
France, C-99-4645 VRW, 2002 WL 500779, at *8 (N.D. Cal. Mar. 25,
27
2002), aff'd, 343 F.3d 1179 (9th Cir. 2003) opinion amended and
28
31

1 superseded on denial of reh'g, 356 F.3d 942 (9th Cir. 2004). As
2 to its federal counterpart, the Ninth Circuit has found,
3 “violation of the FMLA also must constitute a violation of public
4 policy.” Amway Corp., 347 F.3d at 1137.
5

Because there is a triable issue of material fact as to

6 whether Plaintiff was terminated in violation of the FMLA,
7 summary judgment must also be DENIED as to the sixth claim
8 regarding whether her termination violated public policy.
9

5.

Failure to Promptly Pay Wages Owed At Termination
(Seventh Claim)

10
California Labor Code (“Labor Code”) section 201 requires an
11
employer pay a terminated employee all earned wages immediately,
12
or upon termination. Labor Code § 227.3 requires an employer to
13
compensate a terminated employee for all vested vacation
14
immediately, or upon termination. Further, Labor Code § 203
15
provides that if an employer fails to pay a fired worker
16
immediately, it is liable to the employee for a penalty. This
17
waiting time penalty is equivalent to the employee’s daily wage
18
for every day that the earned wages are not paid, with a maximum
19
penalty of 30 days’ pay. Labor Code § 203.
20
Plaintiff was terminated December 12, 2007. In her
21
complaint, Plaintiff alleges: “Defendant failed to fully
22
compensate Plaintiff at the time of her termination by failing to
23
pay her all earned wages, including compensation for vested
24
vacation.” Defendant paid Plaintiff $2,330.40 on March 3, 2010.
25
(Doc. 93.)
26
At the oral hearing, Defendant asserted that the parties had
27
“settled” the claim. Defendant provides no evidence of a
28
32

1 negotiation nor a document detailing the terms of a settlement
2 agreement regarding this claim. (See Doc. 93.) No notice of any
3 settlement was given. See Local Rule, 160 (a) (“When an action
4 has been settled . . . it is the duty of counsel to inform the
5 courtroom deputy clerk and the assigned Court’s chambers
6 immediately.”) Further, there was no meeting of the minds
7 regarding any “settlement,” as Plaintiff’s counsel asserted at
8 the oral hearing that Plaintiff was, in fact, the prevailing
9 party on this claim. (Stewart v. Preston Pipeline Inc., 134 Cal.
10 App. 4th 1565, 1585, 36 Cal. Rptr. 3d 901, 918 (Cal. Ct. App.
11 2005) (“A settlement agreement is a contract, and the legal
12 principles [that] apply to contracts generally apply to
13 settlement contracts”); see also Bustamante v. Intuit, Inc., 141
14 Cal. App. 4th 199, 215, 45 Cal. Rptr. 3d 692, 704 (Cal. Ct. App.
15 2006) (“[T]he failure to reach a meeting of the minds on all
16 material points prevents the formation of a contract.”)
17

No settlement was reached. Plaintiff is the prevailing party

18 on this unpaid wages claim. The issue of the penalty and
19 attorneys fees remains in dispute. Summary judgment cannot be
20 granted.
21
22

D. PUNITIVE DAMAGES

23

Plaintiff seeks punitive damages on her California law

24 claims for failure to prevent discrimination and wrongful
25 termination in violation of public policy, as well as penalty
26 damages for her claim for failure to promptly pay wages owed.
27

1.

FEHA Claims

28

Defendant contends that the Plaintiff’s punitive damages
33

1 claim fails because she does not “allege facts that would support
2 [] an allegation” of “oppression, fraud or malice.” Plaintiff
3 rejoins that Defendant’s supervisors and managers, Edward
4 Mendoza, Linda Mendoza, and John Dias, “acted in willful and
5 intentional disregard of [Plaintiff’s] job-protected leave
6 rights.”
7

Punitive damages are never awarded as a matter of right, are

8 disfavored by the law, and should be granted with the greatest of
9 caution and only in the clearest of cases. Henderson v. Security
10 Pacific National Bank, 72 Cal.App.3d 764, 771, 140 Cal.Rptr. 388
11 (1977). California Civil Code Section 3294(a) provides for
12 punitive damages: “where it is proven by clear and convincing
13 evidence that the defendant has been guilty of oppression, fraud
14 or malice.”

The clear and convincing standard “‘requires a

15 finding of high probability. . . so clear as to leave no
16 substantial doubt; sufficiently strong to command the
17 unhesitating assent of every reasonable mind.’” Scott v. Phoenix
18 Sch., Inc., 175 Cal. App. 4th 702, 715, 96 Cal. Rptr. 3d 159, 170
19 (Cal. Ct. App. 2009), review denied (Sept. 23, 2009) (internal
20 citations omitted)(citing Lackner v. North, 135 Cal.App.4th 1188,
21 1211–1212, 37 Cal.Rptr.3d 863)(2006).

“Something more than the

22 mere commission of a tort is always required for punitive
23 damages. There must be circumstances of aggravation or outrage,
24 such as spite or ‘malice,’ or a fraudulent or evil motive on the
25 part of the defendant, or such a conscious and deliberate
26 disregard of the interests of others that his conduct may be
27 called wilful or wanton.” Id. (citing Taylor v. Superior Court,
28 24 Cal.3d 890, 894, 895, 157 Cal.Rptr. 693 (1979).
34

1

Malice is defined as “conduct which is intended by the

2 defendant to cause injury to the plaintiff or despicable conduct
3 which is carried on by the defendant with a wilful and conscious
4 disregard of the rights or safety of others.”
5 3294(c)(1).

Cal. Civ. Code §

California Civil Code Section 3294(c)(2) defines

6 oppression as “despicable conduct that subjects a person to cruel
7 and unjust hardship in conscious disregard of that person's
8 rights.”

Fraud is “an intentional misrepresentation, deceit or

9 concealment of a material fact known to the defendant or thereby
10 depriving a person of property or legal rights or otherwise
11 causing injury.
12

Cal. Civ. Code § 3294(c)(3).

In ruling on a summary judgment or summary adjudication

13 motion, “the judge must view the evidence presented through the
14 prism of the substantive [clear and convincing] evidentiary
15 burden. . . . [¶] [This] holding that the clear-and-convincing
16 standard of proof should be taken into account in ruling on
17 summary judgment motions does not denigrate the role of the jury.
18 It by no means authorizes trial on affidavits. Credibility
19 determinations, the weighing of the evidence, and the drawing of
20 legitimate inferences from the facts are jury functions, not
21 those of a judge.” (Anderson v. Liberty Lobby, Inc. (1986) 477
22 U.S. 242, 254-255, 106 S.Ct. 2505, 91 L.Ed.2d 202; see also
23 Stewart v. Truck Ins. Exchange, 17 Cal.App.4th 468, 482, 21
24 Cal.Rptr.2d 338 (1993).
25

Although the “clear and convincing” evidentiary standard is

26 stringent, it does not impose the obligation to “prove” a case
27 for punitive damages at summary judgment. Am. Airlines, Inc. v.
28 Sheppard, Mullin, Richter & Hampton, 96 Cal. App. 4th 1017, 1049,
35

1 117 Cal. Rptr. 2d 685, 709 (Cal. Ct. App. 2002). However, where
2 the plaintiff’s ultimate burden of proof will be by clear and
3 convincing evidence, the higher standard of proof must be taken
4 into account in ruling on a motion for summary judgment or
5 summary adjudication, since if a plaintiff is to prevail on a
6 claim for punitive damages, it will be necessary that the
7 evidence presented meet the higher evidentiary standard.

Id.

8 (citing Basich v. Allstate Ins. Co., 87 Cal.App.4th 1112, 11189 1120, 105 Cal.Rptr.2d 153 (2001).
10

Plaintiff’s Opposition merely re-asserts her argument that

11 her managers failed to: investigate her leave designation, apply
12 FMLA to her leave, apprise her of her rights and obligations; yet
13 terminated her despite their wrongdoing.
14
15
16
17
18
19
20

Both Ed Mendoza and Linda Mendoza knew that plaintiff had
traveled to Guatemala to care for her ill father, but they
nevertheless chose to terminate Ms. Escriba. Mr. Mendoza . .
. even granted Ms. Escriba permission to extend her leave so
long as she returned from Guatemala with a doctor’s note.
Linda Mendoza, by her own account, willfully ignored signs
that plaintiff was – at the least – confused about how to
extend her leave. However, neither Ms. Mendoza nor Mr.
Mendoza relayed any of this information to the Human
Resources office. Nor did they attempt to contact Ms.
Escriba to clarify the procedure she was to follow, or even
to contact her husband, who also worked at the Company.
Instead, they abruptly terminated an employee with 18 years
of service and no prior attendance related discipline.

21
22

John Dias also willfully disregarded Ms. Escriba’s rights
when he refused to reinstate her.

23
(Doc. 57, Plt.’s Oppo. at 27-28) (internal citations
24
omitted).
25
Adding pejorative language and the word “willfully” does not
26
establish a claim for punitive damages as a matter of law. Scott
27
v. Phoenix Schools, Inc., 175 Cal. App. 4th 702, 717, 96 Cal.
28
36

1 Rptr. 3d 159, 171 (Cal. Ct. App. 2009), review denied (Sept. 23,
2 2009)2009 WL 1877532 (Cal. App. 3d Dist. 2009) (finding, wrongful
3 termination, without more, will not sustain a finding of malice
4 or oppression, as required for punitive damages). Plaintiff has
5 not provided any direct evidence of fraudulent conduct. Plaintiff
6 has not shown collusion between her supervisors to wrongfully
7 terminate her, or any past or present expression of animus toward
8 her by any Defendant. She had an extensive leave history which
9 was not held against her. FPF did not hide the alleged wrongful
10 reason it terminated Plaintiff. See Id. (finding that because the
11 plaintiff did not assert or prove that her supervisors conspired
12 to hide their wrongful termination of her, she could not be
13 awarded punitive damages.) Plaintiff reads an evil motive into
14 facts that describe nothing more than the basic elements of
15 wrongful termination. The record is devoid of any animus toward
16 her. Summary judgment is GRANTED to Defendant on Plaintiff’s
17 state law punitive damages claim.
18

2.

Failure To Timely Pay Wages

19

At oral argument, the parties disagreed whether FPF’s

20 payment of Plaintiff’s wages after the lawsuit was filed entitles
21 her to prevailing party status on her seventh claim. She is the
22 prevailing party on the seventh claims because she had to file a
23 lawsuit to obtain payment and there was no settlement.
24 Plaintiff’s claim for penalty damages on the seventh cause of
25 action survives. Summary judgement is DENIED as to this penalty
26 damages claim.
27
28

E. AFFIRMATIVE DEFENSES
37

1

Plaintiff moves for summary judgment regarding Defendant’s

2 affirmative defenses raised in Defendants’ Answer to the FAC:16
3
4

1.
2.
3.
4.

Unclean Hands.
Waiver, estoppel, Laches, Acquiesce and/or Consent.
Good Faith.
Mitigation of Damages.

5
1.

Unclean Hands

6
The doctrine of unclean hands requires unconscionable, bad
7
faith, or inequitable conduct by the plaintiff in connection with
8
the matter in controversy. Dickson, Carlson & Campillo v. Pole,
9
83 Cal.App.4th 436, 446, 99 Cal.Rptr.2d 678 (2000); General Elec.
10
Co. v. Superior Court, 45 Cal.2d 897, 899-900, 291 P.2d 945
11
(1955). Unclean hands applies when it would be inequitable to
12
provide the plaintiff any relief, and provides a complete defense
13
to both legal and equitable causes of action. Dickson, Carlson &
14
Campillo, 83 Cal.App.4th at 447, 99 Cal.Rptr.2d 678; Kendall15
Jackson Winery, Ltd. v. Superior Court, 76 Cal.App.4th 970, 978,
16
90 Cal.Rptr.2d 743 (1999).
17
“Whether the defense applies in particular circumstances
18
depends on the analogous case law, the nature of the misconduct,
19
and the relationship of the misconduct to the claimed injuries.”
20
Dickson, Carlson & Campillo, 83 Cal.App.4th at 447, 99
21
Cal.Rptr.2d 678; Fladeboe v. Am. Isuzu Motors Inc., 150 Cal. App.
22
4th 42, 56, 58 Cal. Rptr. 3d 225, 235-36 (Cal. Ct. App. 2007).
23
24
25
26
27
28

16

In its Answer, Defendant asserted fourteen affirmative
defenses. (Doc. 6). By its Opposition, Defendant withdrew its
first, second, fourth, eight, and fourteenth affirmative defense.
(Doc. 51, at 37). Defendant asserts its fifth and thirteenth
affirmative defenses as one affirmative defense. (Id. at 36).
Defendant’s tenth, eleventh and twelfth affirmative defenses are
not the subject of summary judgment.
38

1 Further, “it is fundamental to [the] operation of the doctrine
2 that the alleged misconduct by the plaintiff relate directly to
3 the transaction concerning which the complaint is made.” Dollar
4 Sys., Inc. v. Avcar Leasing Sys., Inc., 890 F.2d 165, 173 (9th
5 Cir. 1989).
6

Whether the testimonial disputes are the result of

7 misunderstanding in translation or intentional falsehoods present
8 credibility issues. Summary judgment is DENIED as to Defendant’s
9 unclean hands affirmative defense.
10

2.

Waiver, Estoppel, Laches, Acquiescence, and/or
Consent.

11
Defendant asserts Plaintiff’s claims are barred by the
12
doctrines of waiver, estoppel, laches, acquiescence, and/or
13
consent . However, Defendant admits in its Opposition that
14
Plaintiff did not waive her FMLA rights. (Doc. 51, Def.’s Oppo.
15
at 36.) The law does not allow Plaintiff to waive her FMLA
16
rights. 29 CFR 825.220(d) (“employees cannot waive, nor may
17
employers induce employees to waive, their rights under FMLA.”)
18
There is no triable issue of fact as to consent.

Summary

19
judgment is GRANTED to Plaintiff on Defendant’s affirmative
20
defenses of waiver, estoppel, laches, acquiescence, and/or
21
consent.
22
3.

Good Faith

23
Defendant asserts “[t]he defense of good faith is, at the
24
very least applicable to the issue of liquidated damages and
25
punitive damages.” (Doc. 51, Def.’s Oppo. at 37.) The employer’s
26
good faith is not pertinent to the question of liability under
27
the FMLA. Amway Corp., 347 F.3d at 1135; Bachelder, 259 F.3d at
28
39

1 1130. It is pertinent only to the question of damages. Id.
2

Defendant contends it has provided “ample evidence that

3 Defendant [] acted in good faith in granting Plaintiff’s vacation
4 and advising her to obtain more leave in addition to her
5 vacation.” Plaintiff rejoins that “[D]efendant [] has failed to
6 provide any factual support to its Reduction of Damages
7 defense.” (Doc. 77, Plt’s Reply at 21.) Plaintiff’s argument
8 fails as discussed above there is a total dispute about who is
9 telling the truth. Defendant has provided some facts regarding
10 good faith. Summary judgement is DENIED regarding Defendant’s
11 good faith defense.
12
13

4.

Mitigation of Damages

Under the avoidable consequences doctrine a person injured

14 by another’s wrongful conduct will not be compensated for damages
15 that the injured person could have avoided by reasonable effort
16 or expenditure. State Dept. of Health Services v. Superior Court,
17 31 Cal. 4th 1026, 1043, 79 P.3d 556, 564 (2003).
18

Defendant offer no facts as to how Plaintiff failed to

19 mitigate her damages. Defendant’s Opposition only provides:
20
21

This affirmative defense relates to the issue of Plaintiff’s
failure to mitigate her damages which is a question of fact.
. . Plaintiff has not presented any evidence of her damages.

22
(Doc. 51, Def.’ Oppo. at 37.)
23
In order to find a genuine issue of fact, the court must be
24
provided with at least one material disputed fact. However,
25
absent proof of any damages by Plaintiff, it is impossible for
26
Defendant to prove Plaintiff’s failure to mitigate. See Fed. R.
27
Civ. Pro. 56 (d). Summary judgment is DENIED as to Defendant’s
28
40

1 mitigation affirmative defense.
2
3

V. CONCLUSION.
For the reasons cited above:

4
5

1.

Plaintiff and Defendant FPF’s motions on the first and

6

third claims regarding interference for

7

mischaracterizing Plaintiff’s leave in violation the

8

FMLA and CFRA are DENIED.

9
10

2.

Plaintiff and Defendant’s motions on the second and

11

fourth claims regarding interference for termination of

12

Plaintiff in violation of the FMLA and CFRA are DENIED.

13
14

3.

Defendant’s motion regarding the fifth claim for the

15

failure to prevent discrimination under the FEHA is

16

GRANTED.

17
18

4.

Defendant’s motion regarding the sixth claim for

19

wrongful termination in violation of public policy is

20

DENIED.

21
22

5.

23

Plaintiff is the prevailing party regarding the failure
to promptly pay wages owed.

24
25

6.

26

Defendant’s motions regarding penalty damages for the
claims arising under FEHA are GRANTED.

27
28

7.

Defendant’s motion regarding punitive damages for
41

1

failure to promptly pay wages owed is DENIED.

2
3

8.

4

Plaintiff’s motion regarding the affirmative defense of
unclean hands is DENIED.

5
6

9.

Plaintiff’s motion regarding the affirmative defenses

7

of waiver, estoppel, laches, acquiescence, and/or

8

consent is GRANTED.

9
10

10.

11

Plaintiff’s motion regarding the affirmative defense
of good faith is DENIED.

12
13
14

11.

Plaintiff’s motion regarding the affirmative defense of
mitigation of damages is DENIED.

15
16

A Joint Pretrial Conference is scheduled for filing Monday,

17 June 6, 2011 at 3:00 p.m. Defendant shall submit a form of order
18 consistent with this decision on or before June 7, 2011.
19
20 SO ORDERED
21 Dated: June 3, 2011
22

/s/ Oliver W. Wanger
Oliver W. Wanger
United States District Judge

23
24
25
26
27
28
42