AVILA v. Cont'l AIRLINES INC., No. B196603.

CourtCalifornia Court of Appeals
Writing for the CourtMOSK, J.
Citation165 Cal.App.4th 1237,82 Cal.Rptr.3d 440
PartiesHenry AVILA, Plaintiff and Appellant, v. CONTINENTAL AIRLINES, INC., Defendant and Respondent.
Decision Date12 November 2008
Docket NumberNo. B196603.

165 Cal.App.4th 1237
82 Cal.Rptr.3d 440

Henry AVILA, Plaintiff and Appellant,
CONTINENTAL AIRLINES, INC., Defendant and Respondent.

No. B196603.

Court of Appeal, Second District, Division 5, California.

Aug. 11, 2008.
As Modified on Denial of Rehearing Aug. 28, 2008.
Review Denied Nov. 12, 2008.

82 Cal.Rptr.3d 441


82 Cal.Rptr.3d 442


82 Cal.Rptr.3d 443


82 Cal.Rptr.3d 444


82 Cal.Rptr.3d 445

Mancini & Associates, Marcus A. Mancini, Sherman Oaks; Benedon & Serlin, Gerard M. Serlin and Kelly R. Horwitz, Los Angeles, for Plaintiff and Appellant.

Law Offices of Steven Drapkin and Steven Drapkin, Los Angeles, for Defendant and Respondent.


165 Cal.App.4th 1243


Plaintiff and appellant Henry Avila (plaintiff) appeals from a summary judgment entered against him on his claims

82 Cal.Rptr.3d 446

that he was discharged from his employment with Chelsea Food Services (Chelsea), a division of defendant and respondent Continental Airlines (Continental), in violation of the Fair Employment and Housing Act (FEHA) (Gov.Code, § 12940 et seq.), 1 the California Family Rights Act ( § 12945.2) (CFRA), and public policy. We affirm the summary adjudication of plaintiff's FEHA claims because plaintiff failed to raise a triable issue as to whether the Continental employees who made the decision to discharge him knew of his alleged disability at the time they made that decision. We reverse the summary adjudication of plaintiff's CFRA and public policy claims, however, because there are triable issues of fact as to whether plaintiff submitted material to Continental that constituted a request for CFRA-qualifying leave. Although the forms plaintiff asserts he submitted to Continental were insufficient to put Continental on notice that he was disabled for purposes of FEHA, they could suggest that plaintiff had suffered a “serious medical condition” as defined in CFRA and could be viewed as a request for leave under CFRA. If, as plaintiff's evidence shows, he was terminated because of absences for a period that was subject to a request for CFRA leave, plaintiff has a CFRA claim.

A. Factual Background 2

Chelsea was in the business of airline food catering at Los Angeles International Airport (LAX) and other locations. Plaintiff worked for Chelsea

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from 1998 through January 2005. Chelsea's attendance policy in effect throughout plaintiff's employment stated that an employee would be terminated if he or she accrued seven or more “recordable” absences in any rolling 12-month period. A “recordable” absence was any absence other than specified nonrecordable incidents. Approved short-term disability and approved family medical leave both were nonrecordable incidents if the need for absences ha[d] been pre-arranged and/or required documentation ha[d] been submitted and approved by the employee's manager prior to the absence.” Although the attendance policy did not so state, a Chelsea human resources manager testified that absences due to emergency situations that were not prearranged could later be excused. An absence was recorded for each day of missed work unless the employee provided a doctor's note justifying the absence for medical reasons. If a doctor certified the employee's illness, only one absence would be recorded, even if the employee was absent for multiple days. Plaintiff was terminated in 2001 for violating the attendance policy, but was later reinstated. He had been warned about his attendance on other occasions.

In December 2004, plaintiff was hospitalized for acute pancreatitis and missed four days of work. Plaintiff testified that, when he returned to work, he provided

82 Cal.Rptr.3d 447

two medical forms from Kaiser Permanente (the Kaiser forms) establishing that he had been hospitalized. 3 Plaintiff also testified that, after he returned to work, he told approximately “50 persons”-his “close friends probably”-that he had been sick. He did not talk to his supervisors, however. Plaintiff was charged two recordable absences for his illness and recuperation, bringing his total number of recordable absences to six for the relevant 12-month period.

During January 2005, plaintiff incurred another recordable absence. On January 18, 2005, Chelsea's Human Resources Manager, Daysi Bellamy, determined that plaintiff had been absent from work seven times in the preceding 12 months, and on that basis determined that plaintiff would be suspended and terminated. The absences relied on by Bellamy in reaching that decision are set forth on a Monthly Employee Attendance Review dated January 18, 2005, which document does not set forth the reasons for any of plaintiff's absences. Bellamy's decision to discharge plaintiff was approved by

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Chelsea's LAX General Manager Judy Tanes and a human resources manager for Continental in Houston, neither of whom had any independent knowledge of plaintiff's employment situation. The next day, at Bellamy's direction, Assistant Operations Manager Leonard Johnson suspended plaintiff from his employment and told plaintiff that his employment probably would be terminated. Plaintiff told Johnson that he had been “sick.”

Sometime prior to January 25, 2005, Bellamy informed Johnson that a decision had been made to terminate plaintiff's employment. Bellamy and Johnson met with plaintiff on January 25 and informed him that he was discharged, effective immediately. Plaintiff testified that, after he was told his employment was being terminated, he told Bellamy and Johnson at that meeting that he had been hospitalized with pancreatitis. The next day, plaintiff and his nephew prepared and hand-delivered to Chelsea a letter to General Manager Judy Tanes explaining plaintiff's illness, providing the medical records related to plaintiff's hospitalization, and requesting plaintiff's reinstatement. Plaintiff also requested an appeal hearing pursuant to company policy. A divided company appeal board upheld the termination.

B. Procedural Background

Plaintiff commenced this action in October 2005. By late 2006, the only surviving claims were against Continental for (1) disability discrimination in violation of FEHA; (2) failure reasonably to accommodate plaintiff's disability in violation of FEHA; (3) wrongful termination in retaliation for plaintiff's exercise of his rights under CFRA; and (4) a Tameny 4 claim for wrongful termination in violation of public policy. Continental moved for summary judgment. The trial court granted Continental's motion, concluding that (1) because Continental had no knowledge of plaintiff's disability and therefore did not terminate him because of that disability, plaintiff had no valid FEHA claim; (2) because plaintiff did not request reasonable accommodation, he could not maintain

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a FEHA failure-to-accommodate claim; (3) plaintiff's CFRA claim failed because plaintiff did not request leave or an accommodation under CFRA for his illness; and (4) plaintiff's Tameny claim could not proceed because that claim was predicated on his insufficient claims under FEHA and CFRA. The trial court entered judgment for Continental. Plaintiff timely appealed.

A. Standard of Review

On an appeal from a grant of summary judgment, we examine the record de novo to determine whether triable issues of material fact exist. (

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Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767, 107 Cal.Rptr.2d 617, 23 P.3d 1143.) We view the evidence in a light favorable to, and resolve any evidentiary doubts or ambiguities in favor of, the non-moving party. ( Id. at pp. 768-769, 107 Cal.Rptr.2d 617, 23 P.3d 1143.) The moving party bears the burden to demonstrate “that there is no triable issue of material fact and that it is entitled to judgment as a matter of law.” ( Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850, 107 Cal.Rptr.2d 841, 24 P.3d 493, fn. omitted.) If the moving party makes a prima facie showing, the burden shifts to the party opposing summary judgment “to make [its own] prima facie showing of the existence of a triable issue of material fact.” ( Ibid.) “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” ( Ibid., fn. omitted.)

B. FEHA Claims 1. The Disability Discrimination Claim

FEHA provides, in relevant part, that “[i]t shall be an unlawful employment practice ...: [¶] (a) For an employer, because of the ... physical disability [or] medical condition ... of any person, to refuse to hire or employ the person ... or to bar or to discharge the person from employment ....” (§ 12940, subd. (a); see Ross v. RagingWire Telecommunications, Inc. (2008) 42 Cal.4th 920, 925-926, 70 Cal.Rptr.3d 382, 174 P.3d 200.) FEHA proscribes two types of disability discrimination: (1) discrimination arising from an employer's intentionally discriminatory act against an employee because of his or her disability (referred to as disparate treatment discrimination), and (2) discrimination resulting from an employer's facially neutral practice or policy that has a disproportionate effect on employees suffering from a disability (referred to as disparate impact discrimination). ( Knight v. Hayward Unified School Dist. (2005) 132 Cal.App.4th 121, 128-129, 33 Cal.Rptr.3d 287.) In opposing summary judgment, plaintiff asserted only disparate treatment discrimination.

To establish a prima facie case for disparate treatment discrimination, plaintiff must show (1) he suffers from a disability, (2) he is otherwise qualified to do his job, (3) he suffered an adverse employment action, and (4) the employer harbored discriminatory intent. (See Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355, 100 Cal.Rptr.2d 352, 8 P.3d...

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