Preciado v. Casa Colina Hospital

Filed 7/26/07 Preciado v. Casa Colina Hospital CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from a judgment of the Superior Court of Los Angeles County, Victor H. Person, Judge. Affirmed.

Alan Burton Newman for Plaintiff and Appellant.

Seyfarth Shaw, Laura Wilson Shelby and Anne E. Jollay for Defendant and Respondent.

___________________________

An employee requested and received a leave of absence for a medical condition related to her pregnancy. An extension was granted at her request, but she then failed to return at the end of the extended leave and (in accordance with the companys policies) her employment was terminated. She sued her employer for denial of pregnancy leave. The employer moved for summary judgment and won. We affirm.

FACTS

A.

In March 2001, Eileen Preciado went to work for Casa Colina, a rehabilitation hospital, as a Health Information Management Technician. Preciado received a copy of Casa Colinas employee handbook at that time, and again when it was updated. She read it, and understood that she had to abide by the policies stated in the handbook, including the following:

LEAVES OF ABSENCE

[E]mployees may . . . be eligible for the following leaves of absence, without pay.

Federal Family and Medical Leave (FMLA) and California Family Rights Leave (CFRA)

Casa Colinas policy is to comply with federal and state regulations which provide eligible employees with up to 12 work weeks of unpaid leave during a 12-month period for certain family/medical reasons. . . .

Family/medical leave may be taken for . . . [y]our own serious health condition that makes you unable to perform one or more of the essential functions of your job.

Requests should be made by completing a Leave of Absence (LOA) form at least 30 days in advance, when possible. The reason for your leave should be briefly explained, and the form signed and returned to your supervisor. Casa Colina may declare a qualifying leave as FMLA whether or not you request FMLA.

Leaves for your own . . . serious health condition must be accompanied by a medical certification from the doctor indicating the nature of the disabling condition and the expected date of return to work. Before returning from leave for your own serious health condition, you must submit a fitness for duty clearance from your health care provider. Employees who are unable to return to work after an approved . . . leave [under the FMLA] has expired will be considered to have voluntarily terminated their employment. . . .

Pregnancy Disability Leave

An employee disabled by pregnancy, childbirth or related medical conditions is eligible to take pregnancy disability leave (PDL) . . . . Affected employees should consult with Human Resources as soon as possible to discuss the options, choices, rights and impacts of PDL. . . .

Extension of Leave of Absence

If your leave is due to expire and additional time is necessary, you may request an extension by submitting a written request to your supervisor at least five . . . days prior to the expiration of the leave. If the leave is a FMLA for your own . . . serious health condition, a doctors statement is also needed. Failure to request an extension will cancel the leave at the expiration date. (Some italics added.)

Preciado received positive feedback regarding her job performance but beginning in 2003 she also received written warnings about her absenteeism which, along with a lack of dependability, were both noted in her 2004 evaluation.

B.

Preciado worked four hours per day from November 9 to 16, 2004. On November 17, her doctor confirmed that Preciado was pregnant and told her she was not to return to work until November 24. Preciado called Geraldine Thompson, her immediate supervisor, and Thompson told Preciado she would need a note from her doctor. Preciado, having twice before taken injury-related leaves of absence, understood her obligation to keep Casa Colina informed about her condition -- and had her aunt deliver a copy of a doctors note on November 17.

On November 23, Preciado was admitted to the hospital and thus did not return to work on November 24 as scheduled. At some point, Preciados husband gave Casa Colina a copy of the hospital admittance sheet, and on November 29 Susan Quinn (Thompsons supervisor) completed an employee request for leave of absence under the FMLA, stating Preciado was unable to sign the form for herself. On the same day, Casa Colina notified Preciado that it was aware of her need to take Family/Medical leave under the FMLA, and that the determination of her eligibility for the leave (beginning November 17) was pending receipt of [her] Health Care Providers Certification. The notice reminded Preciado that her [f]ailure to return to work at the conclusion of granted leave [would be] taken as a voluntary resignation. (Emphasis in original.) Casa Colina thereafter received a doctors note stating that Preciado could not return to work until January 12, 2005.

Preciado was hospitalized again from January 4 to 9, 2005, and she did not return to work on January 12. Quinn discussed Preciados absence with Karen DuPont, Casa Colinas Director of Human Resources, and they decided to wait a few days to see if [Preciado] returned to work. After business hours on January 13, Preciados husband purportedly left a telephone message for Thompson (which Thompson said she never received), stating that Preciado was back in the hospital and needed an extension of medical leave. Quinn was unable to reach either Preciado or her husband (due to outdated contact information) but on January 14 talked to Preciados sister-in-law (and might have learned then that Preciado was in the hospital).

Although Preciado was hospitalized from January 13 to 17, Casa Colina did not receive any documentation, and on January 20 DuPont wrote to Preciado, specifying that Preciado had not provided an updated medical certification or status report and concluding: I will be separating you from [Casa Colinas] payroll. If there is other information I should have regarding this decision, please call me . . . . Also, when you are available for work, please call us and we will consider all factors in determining if you are eligible for rehire. The letter was apparently sent to Preciados former (and no longer current) address.

On January 27, Preciados mother delivered to Casa Colina a doctors certificate (dated January 25) stating that Preciado could not return to work until February 23, but Quinn told Preciados mother that her daughter had already been terminated. Preciado did not thereafter try to contact anyone at Casa Colina (and later claimed she was semi-comatose from November 17, 2004 to mid-March 2005).

C.

Preciado obtained a right to sue letter from the Department of Fair Employment and Housing, and in May 2005 sued Casa Colina for a single cause of action, denial of pregnancy disability leave and wrongful termination in violation of Government Code section 12945, subdivision (a).[1] According to her complaint, Preciado had requested pregnancy disability leave for the period November 17, 2004, until February 23, 2005 . . . . During [that] period of time, [she] was extremely sick and was in and out of the hospital every week, and under home health service care. Because of [her] pregnancy disability and her being on heavy medication, she could not provide her employer with personal notice of her need for medical leave [but she] attempted to provide notice and her doctors medical certificates through her aunt and her husband. Despite this reasonable effort, she alleged, Casa Colina denied the leave by terminating [her employment] while she was on her pregnancy disability leave.

Casa Colina answered the complaint on June 13, and then (on June 28) offered Preciado (who had given birth on June 8) reinstatement to the same position, salary and benefit that she had prior to her termination. The offer was rejected, apparently because there was a dispute about whether (as Casa Colina claimed) Preciados employment had been converted to part-time immediately before the last day she worked in November 2004 (as noted above, she worked four-hour days from November 9 to 16, 2004). Discovery ensued.

In February 2006, Casa Colina moved for summary judgment, contending Preciado could not prevail because the evidence was undisputed that [she] was provided all the leave that she requested and she was not terminated for taking leave -- the problem was that she failed to timely request and document her request for additional leave in accordance with Casa Colinas policies. Over Preciados opposition, the trial court granted the motion, finding (among other things) that Preciado had failed to request an extension of her leave at any time prior to January 12 (the day she was due back at work), that Casa Colina was not required to honor her subsequent request, and that Casa Colinas policy was not unlawful. Preciado appeals from the judgment thereafter entered.

DISCUSSION

I.

Preciado contends she did make a timely request for pregnancy leave -- her husbands after-hours phone message on January 13, 2005 -- and that summary judgment should not have been granted. We disagree.

Preciado claims her husbands errant phone message provided reasonable notice within the meaning of section 12945 because it was verbal notice sufficient to make the employer aware that [she] need[ed] a pregnancy disability leave and was given as soon as practicable under the circumstances. (Tit. 2, Cal. Code Regs., 7291.10.)[2] The problem with this argument is that Casa Colina did not deny a request for pregnancy leave -- and Preciados actual claim, as the trial court put it, is that [Casa Colina] improperly denied a request to extend her leave. Based on Preciados original notice on November 17 and her doctors note, her request for leave was granted to November 24. Based on her subsequent hospitalization, the forms filled out by Casa Colina, and the additional note from her doctor, her leave was extended to January 12, 2005 (she was due back at work on January 12). Plainly, her husbands January 13 call was an effort to extend the leave that had already expired.

Casa Colinas written policy requires that requests for extensions of a previously granted leave be submitted in writing at least five days before expiration of the leave -- which the undisputed facts show was not done in this case. Casa Colinas written policy also provides that a failure to request an extension will cancel the leave at its expiration date -- and Preciado was reminded on November 29 that her failure to return to work at the conclusion of granted leave [would be] taken as voluntary resignation.

Undisputed facts established that Preciados leave was due to expire on January 12 (that is, that she was expected to be at work on January 12), that she was released from the hospital on January 9, that she failed to report to work on January 12, and that the first possible time that anyone requested an extension was after business hours on January 13. And there was no evidence at all to explain Preciados failure to submit a timely request for a further extension or medical documentation to show it was necessary -- her self-serving statement that she was semi-comatose is unsupported by any medical or other evidence, and contradicted by her own deposition testimony that, during that time, she spoke to her mother and husband about their contacts with Casa Colina. (Benavidez v. San Jose Police Dept. (1999) 71 Cal.App.4th 853, 860-861 [a partys statements contradicting prior deposition testimony may be disregarded in determining whether there is a triable issue of material fact].)

As the trial court found, the January 13 request was untimely pursuant to company policy, and [Casa Colina] was not required to honor it.[3]

II.

To avoid this result, Preciado contends Casa Colinas extension policy is unlawful. We disagree.

Preciado claims the policy is a clear violation of CCR section 7291.10(a)(4), which provides that an employer shall not deny a pregnancy disability leave . . . , the need for which is an emergency or is otherwise unforeseeable, on the basis that the employee did not provide advance notice of the need for the leave . . . . This section does not apply because Casa Colina granted Preciados request for leave, and her employment was terminated only because she thereafter failed to timely seek an extension of that leave -- and did not show she was unable to submit a timely request. Preciados related claim that the policy is per se illegal because it violates other parts of the regulations (CCR 7291.10(a)(1), (a)(3)) fails for the same reason.

Preciados reliance on 29 C.F.R. 825.308(d) is equally misplaced. This section addresses the circumstances permitting an employer to request subsequent recertifications of medical conditions when an employee is out on a monitored extended leave, not an employees request for an extension of the term of her leave.

In short, there is nothing per se illegal about Casa Colinas policy, and no evidence to suggest that it was improperly applied in this instance.

DISPOSITION

The judgment is affirmed. Casa Colina is entitled to its costs of appeal.

NOT TO BE PUBLISHED.

VOGEL, J.

We concur:

MALLANO, Acting P.J.

ROTHSCHILD, J.

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[1] Undesignated section references are to the Government Code.

[2] Subsequent CCR section references are to Title 2 of the California Code of Regulations. As relevant, CCR section 7291.10 provides, beginning at (a)(1), that [a]n employee shall provide at least verbal notice sufficient to make the employer aware that the employee needs a pregnancy disability leave . . . and the anticipated timing and duration of the leave . . . . [] (2) . . . [] An employee must provide the employer at least 30 days advance notice before pregnancy disability leave . . . is to begin if the need for the leave . . . is foreseeable . . . . [] (3) . . . [] If 30 days advance notice is not practicable, such as because of a lack of knowledge of approximately when leave . . . will be required to begin, a change in circumstances, or a medical emergency, notice must be given as soon as practicable. . . .

[3] Our resolution of the notice issue makes it unnecessary to consider Preciados claim about the evidence required to prove sex discrimination, which she claims is not a part of her claim for denial of pregnancy disability leave.