Rankins v. Verizon Communications

Filed 1/30/07 Rankins v. Verizon Communications 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Gregory W. Alarcon, Judge. Affirmed.

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Alan Burton Newman and Alan Burton Newman, for Plaintiff and Appellant.

OMelveny & Myers, Michael G. McGuinness and Linda Kwak for Defendant and Respondent.

_________

Latoya Rankins sued Verizon Communications, Inc. (Verizon) for wrongful termination in violation of the California Family Rights Act, Government Code section 12945.2 (CFRA). The trial court granted summary judgment in favor of Verizon on the ground that Verizon had a reasonable, good-faith belief that Rankins had submitted fraudulent documentation in support of her request for medical leave. We affirm.

BACKGROUND

Rankins became an employee of Verizon in 1998. In July 2002, she was diagnosed with dysmenorrhea and uterine fibroids. On the advice of her supervisor, Rankins sought certification from her doctor, Tamarah Manning, M.D., so that Rankins could take approved, intermittent leave from work as required by her medical condition.

On the basis of the certification provided by Dr. Manning, Verizon approved Rankins request to take intermittent leave with a probable frequency of 3-5 episodes per month, with each episode lasting 2-3 days. The approval document informed Rankins that if her absences exceeded the approved probable frequency or duration of her leave, then she would need to have her doctor complete an additional certification form. Verizon initially approved Rankins intermittent leave from August 15, 2002, to November 15, 2002, and repeatedly renewed it, on the same terms, through April 28, 2004.

Then, on April 28, 2004, Dr. Manning signed a certification form that reduced the number of episodes to 2-3 per month, each episode again lasting 2-3 days. The record contains no evidence that Verizon approved Rankins request for leave pursuant to the April 28 certification, but Rankins does not dispute that Verizon did approve the leave on those terms. In July 2004, a supervisor informed Rankins that she had exceeded her approved amount of leave and advised her that she should obtain a new certification from her doctor if the existing certification did not meet her medical needs.

On August 10, 2004, Rankins faxed a new certification form to Verizon.^[1] The form was purportedly signed by Dr. Manning on July 28, 2004, and it increased Rankins certified leave time to 2-5 episodes per month and 2-5 days per episode.

The Verizon employee who reviewed the new certification found several apparent irregularities on it that seemed to indicate that the form had been falsified, including text that appeared to have been whited-out, handwriting that was not uniform, and the listing of a follow-up appointment scheduled for June 16, 2004, while the form itself was dated July 28, 2004. Because of these perceived irregularities, Verizon contacted Dr. Mannings office to determine whether the form was valid. Dr. Mannings assistant informed Verizon that there was no copy of any July 2004 certification in Rankins file (though the file contained all of the prior certifications), that there was no record of Rankins having had an appointment with Dr. Manning in July, and that there was no record of payment of the form fee for a July 2004 certification.

Verizon then informed Rankins of its suspicions concerning the certification and conducted two investigatory interviews with her, at both of which she was represented by her union. In the interviews, Rankins stated that she did not have an appointment with her doctor, was not seen by her doctor, and did not pay a form fee in connection with obtaining the new certification. Nor was Rankins able to explain the irregularities on the certification she had faxed to Verizon. At the second interview, when asked for the original of the July 2004 certification, Rankins said that she had given it to one of her union representatives, but the representative, who was present at the interview, believed she had returned the form to Rankins. Rankins and the representative were unable to resolve the issue, and the form was never provided, either during or after the interview. Verizon suspended Rankins at the close of the second interview.

A few days after the second interview, Rankins, through her union representatives, provided Verizon with a letter dated November 18, 2004, from Catrina Mickles, a medical assistant who had worked in Dr. Mannings office. In the letter, Mickles said that she filled out Rankins July 2004 certification and that Dr. Manning had waived the $35 form fee.

Verizon then attempted to contact Mickles to confirm the contents of her letter. But when Verizon called the phone number provided on the letter, which was written on letterhead from Dr. Mannings medical group, Verizon discovered that the phone number and, thus, the letterhead were years out of date. When Verizon did contact Dr. Mannings office, a staff person informed Verizon that the office does not use outdated letterhead, that the form fee is not $35, and that Dr. Manning waives form fees only if the form is required as a result of some error on Dr. Mannings part.^[2]

By letter dated November 26, 2004, Verizon terminated Rankins. The letter stated that the reason for Rankins termination was that she had provided falsified documents to the company in support of her request for medical leave.

On February 14, 2005, after obtaining a right-to-sue letter from the Department of Fair Employment and Housing, Rankins filed her complaint against Verizon for wrongful termination in violation of the CFRA. Verizon moved for summary judgment, arguing that it terminated Rankins on the basis of a good-faith and reasonable belief that she had submitted falsified documentation in support of her request for increased leave. The trial court granted Verizons motion and entered judgment against Rankins. Rankins timely appealed.

STANDARD OF REVIEW

On appeal from a judgment entered after the trial court granted a motion for summary judgment, we independently examine the record in order to determine whether triable issues of fact exist to reinstate the action. (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142.)

DISCUSSION

I. There Is No Triable Issue of Material Fact Concerning
Verizons Good-Faith, Reasonable Belief

Rankins argues that there was a triable issue of fact as to whether Verizon had a good-faith, reasonable belief that she had submitted falsified documentation in support of her request for increased leave. We disagree.

In support of her argument, Rankins first asserts that the July 2004 certification was faxed to Verizon from Dr. Mannings office, but the undisputed evidence shows that Rankins herself faxed the form to Verizon. Second, she asserts that Dr. Mannings office wrote a letter confirming that the July 2004 certification was valid, but her citation to the record indicates that she is referring to the letter from Mickles. Rankins does not dispute the irregularities in the Mickles letter that gave Verizon a good-faith, reasonable basis to doubt its validity. Third, Rankins notes that Dr. Manning had issued previous certifications in support of Rankins leave requests, but that does not undermine Verizons good-faith, reasonable belief that the July 2004 certification, which materially differed from the previous certifications and bore several indicia of falsification, was not valid. Fourth and finally, Rankins contends that [t]he July 28, 2004 certificate was found in [her] medical file. The contention is based on the fact that at Dr. Mannings deposition, the doctor found a copy of the July 2004 certification in Rankins file. The contention is of no consequence because it does not show that when Verizon terminated Rankins, Verizon lacked a good-faith, reasonable belief that Rankins had submitted falsified documentation. It does not, for example, create a triable issue concerning either the irregularities that aroused Verizons suspicions, Verizons reasonable investigation concerning the validity of the certification, or the results of that investigation.^[3]

For all of the foregoing reasons, we affirm the trial courts determination that there was no disputed issue of material fact concerning Verizons good-faith, reasonable belief that Rankins had submitted falsified documentation.

II. Verizons Good-Faith, Reasonable Belief
Constitutes a Defense to Rankins Claim

Rankins presents several arguments for the conclusion that there is no good-faith defense to a claim for violation of the CFRA. None has merit.

First, Rankins argues that the right to medical leave under the CFRA is a substantive right[,] so a claim for violation of that right cannot be subject to a good-faith defense. Rankins never explains what she means by a substantive right[,] and she cites no authority for the proposition that a claim for violation of a substantive right cannot be subject to a good-faith defense. The argument therefore fails. (Dabney v. Dabney (2002) 104 Cal.App.4th 379, 384 [We need not consider an argument for which no authority is furnished.].)

Second, Rankins argues that neither the text of the CFRA itself, the CFRAs implementing regulations, nor the associated jury instructions provide for a good-faith defense. The argument lacks merit because the good-faith defense under the CFRA has been recognized by California case law, which follows federal case law recognizing an identical defense under the federal Family and Medical Leave Act. (McDaneld v. Eastern Municipal Water Dist. Bd. (2003) 109 Cal.App.4th 702, 708 [liability was precluded by the defendants justifiable conclusion that [the plaintiff] had misused leave . . . and was untruthful [hereafter McDaneld]; see also Medley v. Polk Co. (10th Cir. 2001) 260 F.3d 1202, 1207-1208; Smith v. Chrysler Corp. (6th Cir. 1998) 155 F.3d 799, 806-808; Kariotis v. Navistar Intern. Transp. Corp. (7th Cir. 1997) 131 F.3d 672, 675-679.)

Third, Rankins attempts to distinguish McDaneld and one of the related federal cases on the ground that each of them involved an abuse of leave of absence. (Underlining omitted.) Rankins implicit premise is that the instant case does not involve an abuse of the right to medical leave under the CFRA. Rankins never attempts to defend (or even articulates) that premise, and the premise is indefensiblethe undisputed facts show that Verizon had a good-faith, reasonable belief that Rankins was abusing her right to CFRA leave by submitting falsified documentation.

Fourth, Rankins argues that we should apply the holding of Sims v. Alameda-Contra Costa Transit Dist. (N.D. Cal. 1998) 2 F.Supp.2d 1253. That case dealt with situations in which an employer doubts the accuracy of an employees doctors diagnosis. Federal regulations provide that in such circumstances the employer can seek a second and even a third opinion before approving a request for medical leave. (Id. at p. 1255.) The district court held that if the employer fails to seek those further opinions before taking action against the employee, then the employer is bound by the employees doctors diagnosis and cannot later challenge its accuracy in court. (Ibid.) That holding is irrelevant here, because Verizon has never indicated that it doubted the accuracy of any of Dr. Mannings diagnoses. Rather, it doubted that the July 2004 certification came from Dr. Manning at all.

Fifth and finally, Rankins argues that considerations of public policy compel rejection of the good-faith defense, because such a defense will cause thousands of employees to be deprived of their rights under the CFRA. We are not persuaded. McDaneld was decided over three years ago, and we are aware of no evidence that the CFRA has become a dead letter in the interim. The good-faith defense does not permit employers to reject leave requests wantonly or without justification. In order to avail itself of the good-faith defense, an employer must undertake whatever investigation is reasonable under the circumstances, and the results of that investigation must provide a reasonable justification for the employers good-faith belief that the employee engaged in the misconduct at issue. We see no public policy basis for eliminating or further circumscribing that defense.

For all of these reasons, we reject Rankins contention that there is no good-faith defense to a claim for violation of the CFRA.

III. The Trial Court Did Not Abuse Its Discretion When
It Denied Rankins Request for Leave to Amend

At the hearing on Verizons motion for summary judgment, Rankins counsel orally requested leave to amend the complaint in order to add a claim for reinstatement. The trial court denied the request. Rankins now argues that the denial of the request was an abuse of discretion. We disagree.

Rankins bases her argument on the discovery, at Dr. Mannings deposition, that Rankins medical file did contain a copy of the July 2004 certification. That discovery, according to Rankins, somehow gave rise to her claim for reinstatement. Dr. Manning was deposed on October 26, 2005.^[4] Rankins filed her written opposition to Verizons motion for summary judgment on January 6, 2006, but it contained no request for leave to amend. Rankins did not ask for leave to amend until her counsel did so orally at the hearing on the summary judgment motion, on January 20, 2006. Had the request been granted, it would have required the court to reopen discovery and postpone the trial, which was then scheduled for February 21, 2006. Given Rankins lack of diligence and the prejudice to Verizon, we conclude that the trial court did not abuse its discretion when it denied her request. (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 488; Hulsey v. Koehler (1990) 218 Cal.App.3d 1150, 1159.)

DISPOSITION

The judgment is affirmed. Respondent shall recover its costs on appeal.

NOT TO BE PUBLISHED.

ROTHSCHILD, J.

We concur:

MALLANO, Acting P.J.

VOGEL, J.

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^[1] In her opening brief on appeal, Rankins repeatedly asserts that Dr. Manning faxed the form to Verizon. The evidence in the record, however, indicates that Rankins faxed the form to Verizon, and Rankins did not dispute this fact in the trial court.

^[2] In subsequent deposition testimony, Dr. Manning testified that she does not recall a single instance in which she waived a form fee.

^[3] There is no evidence that the certification found in Rankins file was a copy that was retained by Dr. Mannings office when the certification was completed. Rather, the copy found during the deposition was located in the Miscellaneous & Correspondence section of the file, so it could well have been the copy that Verizon faxed to Dr. Manning in the course of Verizons investigation.

^[4] In their briefs, the parties give the date as October 24, 2005, but the deposition transcript in the record states that the deposition was taken on October 26, 2005.