Moreno v. Anwa Hotel and Resort

Filed 8/29/06 Moreno v. Anwa Hotel and Resort CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from a judgment of the Superior Court of Los Angeles County. David L. Minning, Judge. Affirmed.

Eisenberg & Associates, Michael B. Eisenberg and David I. Himelson for Plaintiff and Appellant.

Cohen & Goldfried and Robert M. Goldfried for Defendants and Respondents.

* * * * * *

Appellant Olga Moreno appeals the summary judgment entered in favor of her former employers, respondents Anwa Hotel and Resort International, Inc., and Al Anwa USA, Incorporated (Anwa) on her claims for wrongful termination based on pregnancy and mental disability discrimination and the denial of pregnancy disability and family medical leave. Anwa mistakenly terminated Moreno during her pregnancy disability leave because it miscalculated her return date and believed she had overstayed her leave. When Moreno informed Anwa of its mistake, it unconditionally reinstated her and gave her the full amount of leave legally required. The reinstatement was offered within two weeks of the mistaken termination and before the date on which Moreno had intended to return to work. Moreno did not return to work and sued, claiming that the termination had created antagonistic working conditions such that it was unreasonable to expect her to accept reinstatement. The trial court found that the offer of reinstatement cured the termination and that Moreno had received all of the leave to which she was legally entitled and granted summary judgment in Anwa’s favor. We affirm.

FACTS AND PROCEDURAL BACKGROUND

The Undisputed Facts

Anwa operated the Marina Del Rey Hotel in Los Angeles County. Moreno began working for Anwa as a secretary-receptionist in 1997. In 1999, Moreno moved to Anwa’s small corporate office and worked in accounts payable and accounts receivable. Six to eight employees worked in the office with Moreno, including the chief financial officer, Izzat Tawil, the controller, Christopher Salvador, the assistant controller, Erick Perera, and the human resources manager, Tina Cortez Reyes. The atmosphere in the office was informal and friendly.

Moreno learned she was pregnant in March 2002 and informed Reyes that she was requesting leave, which she anticipated would begin on January 7, 2003. But Moreno actually commenced her absence from work on December 19, 2002, when she gave birth to her son. On December 27, Perera, at Moreno’s request, provided her a form which she completed in order to be paid for unused sick days, vacation days and office holidays. Moreno completed another such form on January 7, 2003, claiming a total of 13 paid absences. On February 6, 2003, Moreno’s doctor declared her disabled due to postpartum depression and ordered a leave of absence until April 4. Her doctor later extended the leave of absence to June 4, 2003. Moreno provided copies of her doctor’s orders to Anwa.

On May 1, 2003, Reyes sent a letter terminating Moreno for overextending her leave. Shocked and upset by the letter, Moreno left voicemail messages on May 6 and 7 for Tawil to contact her. Without having received a response, Moreno again called and spoke with Tawil on May 12, 2003. She told him that she was hurt and furious over her termination, and Tawil indicated that Reyes would contact her to review the calculation of her leave. Moreno informed Reyes that she believed the calculation of the amount of leave she was entitled to was mistaken. Reyes reviewed her calculation and on May 15, 2003 sent a letter to Moreno asking her to disregard the previous letter, acknowledging she was entitled to an additional twelve weeks of leave under the California Family Remedies Act (CFRA) (Gov. Code, § 12945.2)^[1] and assuring her that her job and benefits were protected until her return.

All further communication regarding Moreno’s possible lawsuit was between Moreno’s attorney and Anwa’s counsel. On August 6, 2003, Anwa’s counsel informed Moreno’s counsel that Moreno’s family and medical leave had expired and requested to be informed of Moreno’s intentions with respect to her job. By letter dated August 29, 2003, Moreno’s counsel informed Anwa that she would not return to work.

Moreno sued Anwa. Her complaint stated three causes of action: (1) Pregnancy discrimination and failure to provide pregnancy disability leave (PDL) under the Fair Employment and Housing Act (FEHA) (§ 12490 et seq.); (2) mental disability discrimination based on postpartum depression and a failure to accommodate her mental disability by giving her medical leave in violation of the FEHA; (3) violation of the CFRA “by discriminating against, retaliating and terminating“ Moreno for the exercise of her right to take leave. She sought damages for loss of earnings, medical expenses, benefits, expenses in obtaining substitute employment, severe emotional distress, punitive damages and attorney fees.Anwa’s Motion for Summary Judgment and Summary Adjudication

Anwa sought summary judgment on the basis that it cured any wrongful termination by unconditionally reinstating Moreno before the date she intended to return to work, that Moreno had received her full entitlement to leave, and that her postpartum depression had been reasonably accommodated by additional leave. Anwa sought summary adjudication on the issue of damages based on Moreno’s refusal to accept reinstatement which eliminated any claim for lost income. Anwa supported its motion with Reyes’s declaration explaining in detail the basis for her miscalculation of Moreno’s leave and attaching the erroneous spreadsheet she used in her calculation. Anwa also relied on Moreno’s deposition testimony that she called Anwa after receiving the May 1 letter in order to tell them they had made a mistake, and Moreno’s testimony that she was not ready or able to return to work until the end of May or the beginning of June.

Moreno’s Opposition

Moreno did not dispute that the May 1 letter was based on a mistake. Rather, she claimed that a reinstatement that required her to work with former colleagues and friends who had terminated her without warning or apology could not cure a wrongful discharge. She argued that her reasons for rejecting the reinstatement were in dispute, that the reasonableness of her rejection could not be determined as a matter of law and that her rejection was reasonable. Moreno also contended that the May 1 termination deprived her of pregnancy disability, “bonding time” and leave for her postpartum depression. Moreno supported her arguments with a declaration outlining her emotional reaction to the termination and to Anwa’s treatment of her after the termination, and her belief that Anwa offered reinstatement only because it was legally obligated to do so but that it did not want her back. Moreno then filed a supplemental declaration and opposition arguing that her claims for violation of PDL and CFRA were valid and that during her conversations with Perera on December 27, 2002 she requested additional leave for “bonding time.”

The trial court granted summary judgment in Anwa’s favor on several grounds. First, the court found that unconditional reinstatement was offered “before there could be any interruption of the plaintiff’s actual employment, and before any termination had a chance to take effect.” This finding was based on the undisputed facts that the offer of reinstatement was unconditional, it was made on May 15 and Moreno’s deposition testimony indicated that she was not expecting to return to work until June 4, the date included in her doctor’s order. The court also concluded that even if the May 1 letter was a violation of FEHA, that violation was cured by the unconditional offer of reinstatement, and that it was not disputed that the May 1 letter was based on a mistake rather than on a discriminatory motive. Finally, the court found that even if there had been a FEHA violation, Moreno had failed to mitigate her damages by failing to demonstrate “special circumstances” that would justify her refusal of the offer of reinstatement. The trial court rejected Moreno’s contention that her subjective feelings with respect to her rejection of the reinstatement created a triable issue of fact. Finally, the court found no dispute that Moreno was given her full entitlement of leave.

DISCUSSION

I. Standard of Review and Contentions on Appeal

Moreno contends on appeal that an offer of reinstatement cannot cure a wrongful termination if the employee reasonably rejects the offer; that the reasonableness of such a rejection is a matter of fact that cannot be determined on summary judgment; that her reasons for rejecting the reinstatement are material and disputed; that her rejection of the offer was reasonable; and that the May 1 termination deprived her of PDL, family and medical leave to bond with her newborn child and leave to accommodate her postpartum depression.

We review summary judgments de novo. (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 65-66.) In exercising de novo review, we consider all of the evidence and the inferences reasonably drawn therefrom and view such evidence and inferences in the light most favorable to the opposing party. (Code Civ. Proc., § 437c, subd. (c); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).)

“Summary judgment is properly granted when the papers show there is no triable issue of material fact, and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (o)(2).)” (Hill Brothers Chemical Co. v. Superior Court (2004) 123 Cal.App.4th 1001, 1005.) “A defendant seeking summary judgment bears the initial burden of proving the ‘cause of action has no merit’ by showing that one or more elements of plaintiff’s cause of action cannot be established or there is a complete defense. [Citations.]” (Spitzer v. Good Guys, Inc. (2000) 80 Cal.App.4th 1376, 1385.) “’Once the defendant . . . has met [his burden of showing that a cause of action has no merit], the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. . . .’ [citation].)” (Aguilar, supra, 25 Cal.4th at p. 849.)

II. The Statutory Scheme and Moreno’s Causes of Action

The FEHA provides that it is an unlawful employment practice to discharge an employee based on sex or mental disability. (§ 12940, subd. (a).) Sex includes pregnancy, childbirth, or medical conditions related to pregnancy or childbirth. (§ 12926, subd. (p).) It is also an unlawful employment practice to fail to accommodate an employee’s mental and physical disabilities, including those related to pregnancy. (§§ 12940, subd. (m), 12945, subd. (b)(1).) Furthermore, an employee is entitled to up to four months of unpaid PDL. (§ 12945, subd. (a).)

The CFRA was enacted in 1991 as part of the FEHA and provides that qualified employees are entitled to up to12 work weeks of family and medical leave. (§ 12945.2.) It also provides that it is unlawful to “discharge . . . any individual because of . . . (1) An individual’s exercise of the right to family care and medical leave provided by subdivision (a).” (§ 12945.2, subd. (l)(1).) A woman is thus entitled to four months of PDL and an additional 12 weeks of family and medical leave to care for her baby, herself or a close relative with a serious illness. (Xin Liu v. Amway Corp. (9th Cir. 2003) 347 F.3d 1125, 1132 (Xin).)

Moreno’s complaint alleged that she was terminated as the “direct result of plaintiff’s pregnancy, pregnancy leave, mental disability and medical leave.” Her first cause of action alleged pregnancy discrimination and failure to provide PDL^[2] under section 12945 et seq. Her second cause of action alleged mental disability discrimination, based on postpartum depression, under section 12940, subdivision (a) and the failure to provide a reasonable accommodation of her mental disability. (§ 12940, subd. (m).) Her third cause of action alleged violation of the CFRA by denying leave and for “discriminating against, retaliating, and terminating” plaintiff for exercising the right to leave under section 12945.2.^[3]

III. The May 15 Letter Cured the May 1 Termination

A. Appellant’s Burden on Appeal

The trial court found that “the [May 15] reinstatement took place before there could be any interruption of the plaintiff’s actual employment, and before any termination had a chance to take effect” and even if the May 1, 2003 letter was a violation of FEHA, the unconditional offer of reinstatement to the very same job on May 15, 2003 while the plaintiff was on leave and several weeks prior to the earliest she thought she could return to work, cured any such violation, as a matter of law. Based on those findings, the court held that because plaintiff’s three causes of action were based upon a claim of violation of the FEHA, the claims had no merit.^[4]

With respect to the trial court’s determination that the May 15 reinstatement took effect before Moreno’s employment was interrupted or, alternatively, that it cured the earlier termination, Moreno raises one issue on appeal: that there can be no cure because she reasonably rejected the offer of reinstatement. As stated in her opening brief, “the true issue here is that a termination cannot be ‘fully rectified’ by an offer of reinstatement when the employee cannot be expected to return.”^[5]

Moreno made no attempt below to distinguish between her discrimination, failure to accommodate and retaliation claims and her claims for the denial of PDL and CFRA leave. Nor does she raise that distinction as an issue in this appeal. In her opening brief Moreno mentions only in passim that “even if it [offer of reinstatement] were effective and undisputed . . . [it] would not be a valid basis for granting summary judgment on a PDL or CFRA cause of action, ruling as a matter of law that the termination was revoked.” This isolated statement is accompanied by no explanation, argument, nor citation to legal authority. It is not until her reply brief on appeal that Moreno mentions for the first time in this litigation that her denial of leave claims are strict liability claims and that an honest mistake is not a defense to such claims because no showing of discriminatory intent is required. But Moreno does not directly challenge the trial court’s finding that the May 1 letter was either ineffective or cured by the May 15 reinstatement on the grounds that her denial of leave claims cannot be cured as a matter of law. Instead, she invited the trial court to rule based solely on the reasonableness of her rejection of reinstatement. She has thus waived any other basis of review for the trial court’s conclusions in that regard. We therefore do not consider whether claims pertaining to violations of the FEHA’s and CFRA’s leave provisions should be treated differently than other FEHA claims when deciding whether such violations may be cured. (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 403 [party cannot profit from trial court error which it caused]; Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979 [conclusionary arguments without citation to recognized legal authority, disregarded on appeal].)^[6]

B. Reasonableness and the “Special Circumstances” Doctrine

The trial court’s conclusion that the mistaken termination was cured by the later offer of reinstatement rested, in part, on the court’s rejection of Moreno’s contention that she reasonably rejected the offer. Moreno argues that the trial court erred in that assessment because: (1) The issue of whether she reasonably rejected the offer of reinstatement can only be determined by a trier of fact; (2) she raised material factual disputes with respect to her reasons for rejecting the offer; and (3) her rejection was reasonable and thus precluded any cure by virtue of reinstatement. We address each of her arguments in turn.

The issue of the reasonableness of the rejection followed a convoluted path below. Anwa moved for summary judgment claiming, in part, that the offer of reinstatement had cured any FEHA violation. Secondarily, Anwa moved for summary adjudication on the issue of the mitigation of damages, claiming that Moreno’s failure to accept the offer of reinstatement cut off all claims for lost income. Anwa’s contention was based on the so-called “special circumstances” doctrine articulated in Ford Motor Co. v. EEOC (1982) 458 U.S. 219, 241 (Ford): “absent special circumstances, the rejection of an employer’s unconditional job offer [of reinstatement] ends the accrual of potential backpay liability.” Without specifically opposing the motion for summary adjudication, Moreno adopted the “special circumstances” doctrine in her opposition to Anwa’s claim that it had cured the termination. Specifically, she contended that the antagonistic working conditions created by Anwa’s May 1 letter created special circumstances that justified her refusal to return to work.

The plaintiff in Ford sued for discrimination under Title VII of the Civil Rights Act of 1964 (Title VII).^[7] The court noted that “[t]he ‘primary objective’ of Title VII is to bring employment discrimination to an end . . . [citation],” and that “’the preferred means for achieving’ this goal is through ‘[c]ooperation and voluntary compliance.’ [Citation.]” (Ford, supra, 458 U.S. at p. 228.) The court devised the “special circumstances” doctrine to facilitate voluntary compliance and thus further the goals of the anti-discrimination legislation. “[W]e find that, absent special circumstances, the simple rule that the ongoing accrual of backpay liability is tolled when a Title VII claimant rejects the job he originally sought comports with Title VII’s policy of making discrimination victims whole.” (Id. at pp. 233, 238-239, fn. omitted.)

The Ninth Circuit Court of Appeals has held that the “special circumstances” doctrine is in harmony with California’s rule requiring a plaintiff to mitigate damages. (Boehm v. American Broadcasting Co., Inc. (9th Cir. 1991) 929 F.2d 482, 485 (Boehm).) Under California law, an employee who has been wrongfully terminated has a duty to mitigate through reasonable efforts to find substitute employment. The burden of demonstrating that the employee’s efforts were unreasonable is on the employer. The employer may meet his burden by showing that the employee rejected an offer of employment substantially equivalent to that of which she was deprived. The burden then shifts to the employee to establish that “special circumstances” justified her rejection of the offer. (Boehm, supra, at p. 485 citing Parker v. Twentieth Century-Fox Film Corp. (1970) 3 Cal.3d 176, 181.)

There is no dispute in this case that Anwa met its burden of demonstrating an unconditional offer of reinstatement to the same job Moreno had before the May 1 letter. Moreno, therefore, bore the burden to demonstrate that “special circumstances” justified her rejection of the offer of reinstatement.

C. “Special Circumstances” Can Be Determined as a Matter of Law

Moreno argues that Ortiz v. Bank of America Nat. Trust and Sav. Ass’n (9th Cir. 1987) 852 F.2d 383 (Ortiz) and its progeny stand for the proposition that the reasonableness of a rejection of an offer of reinstatement can never be determined on summary judgment. We do not read the cases that broadly.

In Ortiz, Ortiz sued her former employer for wrongful termination. The employer contended she had failed to mitigate her damages by refusing an unconditional offer of reinstatement to her original job. But there was evidence from doctors and health practitioners that she could never work for the same employer again due to an ongoing disability based on psychic injuries resulting from her termination. The employer requested a jury instruction based on Ford that an unconditional offer of reinstatement tolled the accrual of damages as a matter of law. The district court refused that instruction on the grounds that “there was a jury question as to whether or not Ortiz was capable of resuming her work.” (Ortiz, supra, 852 F.2d at p. 387.) The appellate court approved, holding that “[t]he court did not err in refusing to apply Ford Motor Co. inflexibly in a case where the evidence showed special circumstances.” (Ibid.) That holding does not support Moreno’s broad contention that an employee’s refusal of an offer of reinstatement can never be determined on summary judgment.

Nor do we find support for that proposition in the other cases cited by Moreno. (See Boehm, supra, 929 F.2d at pp. 485-486; Cripps v. United Biscuit of Great Britain (E.D.Tenn. 1989) 732 F.Supp. 844, 848-849.) In Fiedler v. Indianhead Truck Line, Inc. (8th Cir. 1982) 670 F.2d 806, 809, the court found that “no jury could find that Fiedler’s refusal of the offer of reinstatement was reasonable” and granted summary judgment.

“Whether the plaintiff has acted reasonably in mitigating damages is ordinarily a question of fact [citation], but issues of fact become those of law where, as here, the facts are undisputed and permit of only one conclusion.” (West v. Bechtel Corp. (2002) 96 Cal.App.4th 966, 985 (Bechtel).)

D. No Special Circumstances

The parties dispute whether Moreno could establish the existence of special circumstances based solely on evidence of her subjective feeling that Anwa was no longer a fit place to work. Moreno’s evidence consisted solely of her own declaration and deposition testimony in which she expressed her anger and disappointment at not having received an apology from anyone at Anwa for the May 1 letter. She felt that she had been “unceremoniously dumped” by people who did not want her back. She did not trust Anwa’s offer of reinstatement and believed that they were reinstating her only to avoid a lawsuit. She was concerned that they would then “find an excuse to get rid of me.” Moreno stated she had shared these concerns with a friend at the time of the termination.

The trial court surveyed the cases interpreting the “special circumstances” doctrine and concluded that “the special circumstances referred to in the cases involve extreme or substantial hostility or antagonism on the part of the employer toward the employee.” (See United Paperworkers v. Champion Intern. (8th Cir. 1996) 81 F.3d 798, 805 [employer’s extreme hostility made productive and amicable working relationship impossible]; Lewis v. Federal Prison Industries, Inc. (11th Cir. 1992) 953 F.2d 1277 [employer-employee relationship was acrimonious; plaintiff disabled by employers’ acts]; Duke v. Uniroyal, Inc. (4th Cir. 1991) 928 F.2d 1413, 1423 [“extreme hostility”]; E.E.O.C. v. Prudential Federal Sav. and Loan Ass’n (10th Cir. 1985) 763 F.2d 1166, 1172-1173, cert. den. (1985) 474 U.S. 946 [same]; Bechtel, supra, 96 Cal.App.4th 966.) The trial court ruled that “plaintiff’s own subjective feelings are irrelevant, in the absence of evidence of hostility or antagonism toward the plaintiff by the defendants, of an extreme or substantial nature.”

Moreno relies on three district court cases from Iowa to argue that the plaintiff’s subjective sense of lowered self-worth and self-esteem must be considered in assessing the reasonableness of a rejection of an offer of reinstatement. But a review of those cases indicates that the circumstances causing the lowered self-esteem must be substantial and that more evidence is required to substantiate the lowered self-esteem than the employee’s own declaration prepared for litigation and attesting to anger, a sense of betrayal and distrust. In Baker v. John Morrell & Co. (N.D.Iowa 2003) 263 F.Supp.2d 1161, 1171, for example, the plaintiff’s evidence of severe depression, mental breakdowns, sleeplessness, weight loss and attempted suicide was corroborated by psychiatric testimony. (See also Ogden v. Wax Works, Inc. (N.D.Iowa 1998) 29 F.Supp.2d 1003, 1010, 1017; Prine v. Sioux City Community School Dist. (N.D.Iowa 2000) 95 F.Supp.2d 1005, 1007, 1009-1011.) In contrast, the only evidence that Moreno offered to show the physical effects of her distraught state of mind were her tears during her conversation with Reyes about the May 1 letter and the fact that she cried through large parts of her deposition two years later. She offered no evidence that a third party had observed in her any adverse reaction to the termination. In fact, when Moreno shared her dismay and sense of distrust generated by the May 1 letter with a friend who previously worked with her at Anwa, the friend advised her to accept the offer of reinstatement and told her she would be fine if she returned.

We find the only California case cited by the parties, Bechtel, supra, 96 Cal.App.4th 966,^[8] to be instructive. The plaintiff in that case, a 30-year employee of Bechtel, was transferred to Saudi Arabia to work on a Bechtel project for a Saudi government commission. The Bechtel director of the project fired the employee after the client complained the employee was too old. Although it was the Saudi client and not the Bechtel director who harbored the discriminatory animus, the employee nevertheless testified that he felt angry and upset with Bechtel because he felt the director should have been more supportive of him and should have had “the backbone to go to my support.” (Id. at p. 974.) He felt that he had been placed in “’a very humiliating position,’” and his wife testified that he returned from Saudi Arabia “’a broken man’” and that he was “depressed and had days when he did not want to get out of bed.” (Id. at p. 975.)

Bechtel later extended numerous offers of employment to the employee on other projects that matched his qualifications and former salary. (Bechtel, supra, 96 Cal.App.4th at p. 976.) But the employee rejected those offers because “he lost self-esteem and confidence as a result of that experience . . . .” (Id. at p. 975.) Specifically, the employee testified that in light of his “’experience in Saudi Arabia having been thrown on the garbage heap and being told I was too old, I didn’t feel I could properly represent the company as I had done in the past. And I felt also that Bechtel, having displayed that behavior in Saudi Arabia, may repeat it.’” (Ibid.) A jury award for damages for breach of the employment contract was reversed on appeal because the evidence established as a matter of law that the employee had failed to mitigate his damages. (Id. at p. 985.) The court stated: “West said that he was discouraged after his experience in Saudi Arabia and fearful of further discrimination by Bechtel, but anyone suffering breach of an employment contract could be expected to have such feelings to some degree. If those excuses were sufficient to spare an employee from making any effort to resume work, the duty to mitigate damages would be wholly illusory.” (Id. at p. 986.)

Moreno’s feelings of having been “unceremoniously dumped” by Anwa were no more severe than the Bechtel employee’s sense of humiliation and betrayal at having been “’thrown on the garbage heap.’”^[9] And her belief that Anwa would find an excuse to terminate her once she returned was no more substantial than the Bechtel employee’s feeling “that Bechtel, having displayed that behavior in Saudi Arabia, may repeat it.’” (Bechtel, supra, 96 Cal.App.4th at p. 975.) We agree with the court in Bechtel that to allow Moreno’s rejection of the unconditional offer of reinstatement in this case would render the duty to mitigate illusory.

Nor do we find persuasive Moreno’s contention that she could not reasonably be required to return to a small work place where she would be forced to work in close contact with those responsible for her termination. In Caudle v. Bristow Optical Co., Inc. (9th Cir. 2000) 224 F.3d 1014, 1021, the plaintiff refused an offer of reinstatement because she felt it would be too awkward to have contact with those responsible for her firing. The court stated that in order to meet her burden to demonstrate “special circumstances” the employee had to show “that there existed ‘excessive hostility between the parties.’” (Id. at p. 1021.) The fact that there would be incidental contact between the employee and her former employer and that she would feel awkward as a result did not suffice to meet her burden.

We recognize that given the small size of Anwa’s corporate office, Moreno would be in contact with those involved in her termination. But Moreno testified that if she returned she would have worked with Perera and Salvador. She believed that she would be able to get along with Perera and was “uncertain” about her ability to work with Salvador. She also would have had contact with Tawil and Reyes. She was “uncertain” about her ability to get along with Tawil and would not have been working with Reyes although she would have contact with her in the office setting. The record here demonstrates nothing more than Moreno’s belief that contact with her former employers, particularly Reyes, would be awkward and painful. While that may be the case, more is required to escape the duty to mitigate damages. (See Bechtel, supra, 96 Cal.App.4th at p. 986 [anyone who has been terminated will be fearful and distrustful of former employer but that does not excuse duty to mitigate].)

Moreno failed to meet her burden below of demonstrating that special circumstances existed excusing her refusal to accept the May 15 offer of reinstatement. Her rejection of that offer was unreasonable as a matter of law.

E. Facts Here Support Allowing Cure

Because we have rejected Moreno’s sole challenge to the trial court’s conclusion that the May 15 letter cured the mistaken termination, we need give no further consideration to that ruling. We nevertheless note that the decision in this case rests, in part, on the unique fact that the reinstatement was offered before Moreno was able to or intended to return to work. Consequently, she suffered no wage loss, no loss of benefits, no change in any condition of her employment. Moreover, the reinstatement was offered within 15 days of the mistaken termination so that even if Moreno could establish actual damages, her failure to mitigate would limit them to that brief period.^[10]

Moreno argues that there is no general rule giving an employer the right to cure all mistakes in the workplace. We agree. However, it is clear that some FEHA violations may be cured and such cures further the policy of voluntary compliance with statutory requirements. In Taylor v. Small (D.C. Cir. 2003) 350 F.3d 1286, 1289-1290 (Taylor), the employee sued for discrimination under Title VII, based in part on an erroneous performance review that resulted in the loss of a bonus. After the employee filed an Equal Employment Opportunity Commission (EEOC) claim, the supervisor corrected the mistake and paid Taylor the bonus. Taylor sued for discrimination based, in part, on the low performance ratings. (Taylor, supra, at p. 1290.) The employer successfully sought summary judgment and Taylor appealed. The circuit court held that while the loss of her bonus due to the incorrect performance ratings could constitute an adverse employment action, the fact that it was cured before the suit was filed meant Taylor could not prove her prima facie case. Summary judgment was therefore appropriate. (Id. at p. 1294.) The court specifically approved the district court’s rationale that “[p]ermitting employers the opportunity to correct workplace wrongs prior to litigation is the objective of the EEO[C] process,” noting that there would be absolutely no incentive for employers to make adjustments for past conduct during the EEOC process if an employee was permitted to sue even if the employer had corrected the grievance. (Ibid.)

We are satisfied that Moreno has demonstrated no error with respect to the trial court’s holding that the May 15 letter cured the May 1 termination.

IV. Deprivation of Leave

Each of Moreno’s arguments claiming a denial of PDL or family and medical leave, whether for bonding with her child or for her postpartum depression, is dependent upon a finding that the May 1 letter was an effective termination that was not cured. Because we have affirmed the trial court’s decision that the May 15 letter effectively cured the May 1 termination, there was no deprivation of leave.

A. PDL and Bonding Time

The parties do not dispute that Moreno was entitled to a maximum of 4 months (counted as 88 working days) of PDL and an additional 12 weeks of CFRA. (§§ 12945, subd. (a), 12945.2.) Even under the version of the facts advocated by Moreno, she was not deprived of leave. Moreno admits that her PDL began no later than January 7.^[11] Her PDL, therefore, was exhausted on May 8. Moreno was on leave when she received the May 1 termination letter. She did not intend to return until June 4. Because the termination was effectively cured on May 15, while Moreno was still on leave and before she intended to return to work, Moreno experienced no deprivation of her PDL.

Moreno’s medical and family leave then began on May 9 at the conclusion of her PDL and concluded on July 31. Moreno’s counsel informed Anwa on August 29, 2003 that she would not return to work. Moreno was on leave when she received the May 1 termination letter. She did not intend to return until June 4. Because the termination was effectively cured on May 15, while Moreno was still on leave and before she intended to return to work, Moreno experienced no deprivation of her CFRA leave.

B. Disability Leave

Because Moreno was diagnosed with postpartum depression, we also review whether she was entitled to additional leave on that basis. The trial court determined she was not, and we agree. It was undisputed that Moreno’s doctor had ordered leave based on her postpartum depression until June 4. Moreno concedes in her opening brief that any claim for leave to accommodate postpartum depression ended on June 4. Moreno was on leave when she received the May 1 termination letter. She was still on leave when she received the May 15 offer of reinstatement. Because the termination was effectively cured on May 15, while Moreno was still on leave and before she intended to return to work, Moreno received all of the postpartum leave to which she was entitled.

DISPOSITION

The judgment is affirmed. Respondent is entitled to costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_______________________, Acting P. J.

DOI TODD

We concur:

_____________________, J.

ASHMANN-GERST

_____________________, J.

CHAVEZ

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Property line attorney.

^[1] All further statutory references are to the Government Code unless otherwise indicated.

^[2] The complaint claims Moreno is entitled to 16 weeks of PDL under section 12945; as discussed post her actual entitlement was 88 working days.

^[3] Respondent contends that Moreno’s complaint failed to state a claim for denial of PDL. We disagree. (See Xin, supra, 347 F.3d at p. 1134, fn. 8 [misidentification as “’retaliation’” and “’discrimination’” does not preclude interference claim].)

^[4] At the conclusion of the hearing, the court ordered the defendant to prepare the order. Moreno was provided a copy of the proposed order that was eventually signed by the judge. She filed objections, stating that it was too long and that it contained findings and conclusions that were not discussed during oral argument, but she made no specific objection to any part of the order.

^[5] That was also the only contention that Moreno raised below in opposition to Anwa’s argument that the termination was cured.

^[6] Consequently, while we recognize the superficial similarities between this case and Bachelder v. America West Airlines, Inc. (9th Cir. 2001) 259 F.3d 1112 (Bachelder) and Xin, supra, 347 F.3d 1125, we do not consider the impact of those cases on the judgment below. We do note that neither case considered the issue of cure in the form of an offer of reinstatement within two weeks of the mistaken termination under circumstances where there was no impact on wages or other benefits of employment. (See Bachelder, supra, at pp. 1122-1126, 1130; Xin, supra, at pp. 1132-1133.)

^[7] California courts look to federal cases interpreting Title VII in analyzing the FEHA. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317.)

^[8] Bechtel included claims for breach of employment contract under California law and age discrimination under FEHA. The court’s discussion of mitigation of damages related to the breach of contract claim.

^[9] We recognize that Moreno was diagnosed with postpartum depression during this time. But she has offered no evidence connecting her disability and her reaction to the termination. She does not state in her declaration that she felt particularly susceptible to Anwa’s perceived ill-treatment due to her condition. Moreover, the doctor’s note indicated that Moreno required disability leave for her postpartum depression only until June 4, and she testified in her deposition that she was starting to feel better during early May.

^[10] Our finding that Moreno’s rejection of the reinstatement was unreasonable and, therefore, a breach of her duty to mitigate damages means that even if the termination were not cured, she would be limited in her recovery of lost wages to the period between the termination and the offer. (Ford, supra, 458 U.S. 219.)

^[11] The parties dispute whether the 13 paid sick days, vacation days, holidays that Moreno claimed between December 19 and January 7 were a part of or in addition to Moreno’s PDL. We need not resolve that dispute.