16 F.Supp.2d 1192 (S.D.Cal. 1998), 97cv0851, Mora v. Chem-Tronics, Inc.

Docket Nº:97cv0851-J (JFS).
Citation:16 F.Supp.2d 1192
Party Name:Javier MORA, Plaintiff, v. CHEM-TRONICS, INC., Defendant.
Case Date:July 01, 1998
Court:United States District Courts, 9th Circuit, Southern District of California

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16 F.Supp.2d 1192 (S.D.Cal. 1998)

Javier MORA, Plaintiff,


CHEM-TRONICS, INC., Defendant.

No. 97cv0851-J (JFS).

United States District Court, S.D. California.

July 1, 1998

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Patricia Ann Shiu, Catherine Albiston, Joannie C. Chang, Employment Law Center, A Project of the Legal Aid Society of San Francisco, San Francisco, CA, Marie Backes, San Diego, CA, for Plaintiff.

John D. Collins, Tara Leigh Wilcox, Sheppard Mullin Richter and Hampton, San Diego, CA, for Defendant.


JONES, District Judge.

Javier Mora ("Plaintiff") filed this instant action alleging that Chem-tronics ("Defendant") violated the Family Medical Leave Act ("FMLA") 29 U.S.C. § 2601 et seq. and the California Family Rights Act ("CFRA")

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CAL. GOV'T CODE § 12945.2 et seq. Now before this Court is Plaintiff's motion for partial summary judgment as to liability on his: 1) third cause of action--violations of public policy under CFRA and FMLA; 2) fourth cause of action--discrimination under CFRA; 3) fifth cause of action--retaliation under CFRA; 4) sixth cause of action--unlawful employment practice under CFRA; and 5) seventh cause of action--interference with the exercise of rights under FMLA. Additionally, Plaintiff moves to strike Defendant's third, eighth, ninth, tenth, eleventh, nineteenth, and twenty-first affirmative defenses.

In its opposition, Defendant filed a cross-motion for partial summary judgment on Plaintiff's CFRA based claims found in the fourth, fifth, sixth, and in part third and seventh causes of actions. This matter came before the Court on Tuesday, May 26, 1998, at 10:30 a.m. with counsel of record appearing for both parties. After hearing oral argument, the Court took the matter under submission. After considering all of the paper filed in this action as well as the arguments by counsel the Court DENIES Plaintiff's motion for summary judgment. The Court GRANTS Plaintiff's motion to strike Defendant's third, eight, ninth, tenth, eleventh, and twenty-first affirmative defense. Plaintiff's motion to strike Defendant's nineteenth affirmative defense is DENIED. Finally, the Court DENIES the Defendant's cross-motion for partial summary judgment on Plaintiff's CFRA claims.

I. Background

A. Plaintiff's Son Javier, Jr.

In the 1980's Mr. Mora was awarded sole custody of his son, Javier Mora, Jr. ("Javier, Jr.") (Mora Decl. ¶ 4). (Def.'s Response to Plaintiff's Undisputed Statement of Facts "DUSF" ¶ 45). 1 From September 14, 1994, to October 3, 1994, Javier, Jr., was in the hospital. On September 22, 1994, Javier, Jr., was diagnosed with cryptococcal meningitis a rare blood disease contracted through exposure to pigeon droppings. At this time he was also tested for HIV and diagnosed with an advanced HIV infection and full blown AIDS. (Mora Decl. pp 5-6). Javier, Jr., passed away on March 23, 1998. (Mora Decl. ¶ 20).

B. Plaintiff's Employment

During Javier, Jr.'s, terminal illness, Mr. Mora was employed by Chem-tronics. Chem-tronics hired Javier Mora in 1986, as a handfinisher and later promoted him to Senior Handfinisher responsible for bringing aerospace parts into compliance with specifications. Chem-tronics has an attendance policy with terms as follows: Employees are assessed one-half of an infraction each time they are tardy, and one infraction for each unauthorized absence. Disciplinary action is imposed when an employee accrues three infractions in one rolling month, five infractions in two rolling months, or ten infractions in one rolling year. A verbal warning may be issued for the first violation, a written warning for the second, a final written warning for the third and termination for any additional violations. (DUSF ¶ 49). Employees must call within one-half hour of their start time if they will be late or absent. (DUSF¶ 50).

On September 26, 1995, Plaintiff was fired for incurring 10.5 infractions in the previous twelve months, beginning in October of 1994. (Plaintiff's Undisputed Statement of Material Facts "PUSF" ¶ 45). Plaintiff contends that such termination was in violation of the FMLA and CFRA because at least three of these absences, on October 19, 1994, March 27, 1995, and September 26, 1995, were taken to care for his son. While Plaintiff contends most if not all of his absence or tardies other than these three days were also to care for his son, only these three days are specifically addressed by the parties with respect to his claims for wrongful termination.

C. Overview of The FMLA

Congress enacted the FMLA to allow workers flexibility in scheduling time to deal with family and medical problems and alleviate

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some of the tension created by the competing demands of work and family. As the legislative history indicates:

Private sector practices and government policies have failed to adequately respond to recent economic and social changes that have intensified the tensions between work and family. This failure continues to impose a heavy burden on families, employees, employers and the broader society. [The FMLA] provides a sensible response to the growing conflict between work and family by establishing a right to unpaid family and medical leave


Family and Medical Leave Act of 1993, S.Rep. No. 103-3, 103rd Cong., 2nd Sess. 4 (1993), reprinted in 1993 U.S.Code Cong. & Ad. News 3, 6 quoted in Stubl v. T.A. Systems, Inc., 984 F.Supp. 1075 (E.D.Mich.1997).

One of the goals specifically delineated in the FMLA is to, "balance the demands of the workplace with the needs of families, to promote the stability and economic security of families, and to promote national interests in preserving family integrity." 29 U.S.C. § 2601(b)(1). The FMLA does not supplant employer-established sick leave and personal leave policies, rather it provides leave for uncommon and often stressful events such as caring for a child with a serious health condition. See, e.g., Price v. City of Fort Wayne, 117 F.3d 1022, 1023 (7th Cir.1997) (summarizing the goals of the FMLA).

The FMLA places affirmative obligations on employers to: 1) notify employees of their rights and obligations under the Act, 29 U.S.C. § 2619; 2) provide up to twelve weeks of unpaid leave to employees who qualify and provide sufficient notice to their employers, 29 U.S.C. § 2612; 3) refrain from disciplining employees from taking leave covered by FMLA, 29 U.S.C. § 2615; 4) reinstate employees to the same or equivalent job after their leave, 29 U.S.C. § 2614(a); and 4) continue the employees' health care during leave their absence. 29 U.S.C. § 2614(c).

Additionally, the right to FMLA and CFRA leave includes the right to take absence on an intermittent basis. 29 U.S.C. § 2612(b)(1); 29 C.F.R. § 825.203(d); CAL. CODE REG. tit. 2, § 7297.3(c)(2), (e). Employees may take leave in any size increments and employers may account for the leave in the shortest period of time the payroll system uses to calculate absences. 29 C.F.R. § 825.203(d) (final regulations); CAL. CODE REG. tit. 2, § 7297.3(c)(e). Intermittent leave is " 'medically necessary' if a family member's condition is intermittent, or if the employee is only needed to care of the family member on an intermittent basis." 29 C.F.R. § 825.116(c)(final regulations).

II. Legal Standard for Summary Judgment

Plaintiff brings this motion for partial summary judgment for liability on its third, fourth, fifth, sixth, and seventh causes of action, pursuant to FED. R. CIV. P. 56(b). The standards and procedures for granting partial summary judgment, also known as summary adjudication, are the same as those for summary judgment. Accordingly, the Court may grant summary adjudication upon a showing that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). The moving party bears the initial burden of demonstrating that it is entitled to summary adjudication. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157-61, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). The burden then shifts to the nonmoving party to show that summary judgment is not appropriate. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). To make such a showing the nonmoving party must go beyond the pleadings to designate specific facts showing that there is a genuine issue for trial. Id.

A fact is "material" only if its resolution will affect the outcome of the lawsuit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute about a material fact is "genuine" only if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. To determine if there is a genuine dispute of material facts the Court shall consider all admissible affidavits and supplemental documents submitted in a motion for summary adjudication. See Connick v. Teachers Ins. and Annuity Ass'n, 784 F.2d 1018, 1020 (9th Cir.) ,

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cert. denied, 479 U.S. 822, 107 S.Ct. 91, 93 L.Ed.2d 43 (1986). This includes discovery documents such as answers to deposition questions, and interrogatories. FED. R. CIV. P. 56(c). The Court, however, does not weigh evidence or make credibility determinations on a motion for summary adjudication. The inferences to be drawn from the underlying facts must be viewed in the light most...

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