Escriba v. Farms
| Citation | 793 F.Supp.2d 1147 |
| Decision Date | 03 June 2011 |
| Docket Number | No. 1:09–cv–1878 OWW MJS.,1:09–cv–1878 OWW MJS. |
| Court | U.S. District Court — Eastern District of California |
| Parties | Maria ESCRIBA, Plaintiff,v.FOSTER POULTRY FARMS, a California corporation, Defendant. |
OPINION TEXT STARTS HERE
Elizabeth Kristen, Sharon Anne Terman, Legal Aid Society, San Francisco, CA, for Plaintiff.
Armand George Skol, William Allen Lapcevic, Arata, Swingle, Sodhi & Von Egmond, Modesto, CA, for Defendant.
ORDERS ON CROSS–MOTIONS FOR SUMMARY JUDGMENT/ADJUDICATION
The parties' cross-motions for summary judgment are before the court. Maria Escriba (“Plaintiff”) and Defendant Foster Poultry Farms (“FPF” or “Defendant”) have respectively moved for partial summary judgment on Plaintiff's interference claims and Defendant's affirmative defenses.1 Defendant FPF has moved for summary judgment on claims one through six in the first amended complaint and on the punitive damages claim.
Plaintiff filed this action, on October 26, 2009. The operative First Amended Complaint (“FAC”) asserts seven causes of action against FPF: (1) Interference under Family Medical Leave Act (“FMLA”); (2) “Discrimination” under FMLA; (3) Failure to provide leave in violation of the California Family Rights Act (“CFRA”) 2; (4) Unlawful discharge under CFRA; (5) Failure to prevent discrimination in violation of the Fair Employment and Housing Act (“FEHA”); (6) Wrongful termination in violation of public policy; and (7) Failure to promptly pay wages owed.
On March 30, 2010, FPF answered Plaintiff's FAC and alleged fourteen affirmative defenses. (Doc. 6.) FPF moved for summary judgment on Plaintiff's first through sixth claims on March 28, 2011. (Doc. 32.) Defendant asserts that Plaintiff's father did not have a serious medical condition, Plaintiff did not give timely or adequate notice to invoke FMLA-protected leave, and Plaintiff's failure to comply with the collective bargaining agreement led to her termination.
Plaintiff opposes FPF's motion (doc. 57.) and filed a cross motion seeking partial summary judgment on her Interference claims and Defendant's affirmative defenses. (Doc. 40.)
unexcused absence throughout the course of her employment at FPF.
9. During November and December 2007 Plaintiff asserts that her father, Mr. Merlos, had multiple serious and chronic health conditions involving continuing treatment, including the following: diabetes, hypothyroidism, chronic adult malnutrition, arterial hypertension, pneumonia, urinary tract infection, anemia, benign prostate hyperplasia and chronic prostate inflammation.
10. Plaintiff states that in November and December, 2007 while she was present in Guatemala with her father, she observed that he was in the hospital more than three days, that he was sick, weak, that he suffered continuing pain and discomfort.
11. Further, that he had significant difficulty urinating and underwent surgery on his prostate. Plaintiff saw his surgical scar.
12. Mr. Merlos, who was in his eighties, was evaluated and treated by at least four different doctors, Dr. Perez, Dr. Davila, Dr. Alvarez, and Dr. Maulhardt for multiple illnesses between November 25, 2007 and December 27, 2007.
13. On November 16, 2007, Plaintiff received a phone call from her niece informing her of her father's deteriorating condition.
14. That same day Plaintiff arranged for purchase of a plane ticket to Guatemala.
15. On the next business day, November 19, 2007, Plaintiff asked her supervisor, Linda Mendoza 5, for leave to fly to Guatemala because her father was ill.
16. On November 21, 2007, Ms. Mendoza told Plaintiff that Plaintiff was entitled to two weeks of vacation, from November 26, 2007 to December 9, 2007.
17. The content of the conversation between Ms. Mendoza and Plaintiff on November 21, 2007 is disputed.
18. Defendant asserts that Ms. Mendoza was concerned that two weeks may not be enough time for Plaintiff and wanted to ensure there were no misunderstandings, so she asked fellow employee Alfonso Flores to translate.
19. Ms. Mendoza asked Mr. Flores to inquire as to whether Plaintiff needed more than two weeks leave. Specifically, whether she wanted medical leave time off after her vacation.6
20. Mr. Flores testified that he asked Plaintiff twice and both times she answered that she did not want more time.
21. Mr. Flores further testified that he told Plaintiff if she needed more time, she must to go to HR.
22. Plaintiff states that no such conversation took place and that Mr. Flores was never present during her discussions with Ms. Mendoza.
23. Plaintiff asserts that, in fact, she requested more time from Ms. Mendoza and Ms. Mendoza refused.
24. Plaintiff states that Ms. Mendoza may have told her to go to HR, but that this directive was given in English, and not Spanish, Plaintiff's language.
25. Plaintiff told Ms. Mendoza if she needed more time, she would have her father's doctor fax a note, to which Ms. Mendoza did not respond.
26. Later that same day, Plaintiff told plant superintendent, Edward Mendoza 7, that she was using two weeks vacation to go to Guatemala because her father was ill in the hospital. Undisputed.
27. Plaintiff later told another supervisor, Moises Lemus, that she needed to leave because her father was ill. Undisputed.
28. The parties dispute what was said between Mr. Mendoza and Plaintiff.
29. Plaintiff asked Mr. Mendoza what to do in case she needed to extend her leave.
30. Plaintiff states that Mr. Mendoza responded by granting her permission to take indefinite leave when he stated, “Go, and when you come back, bring the doctor's note.”
31. Conversely, Mr. Mendoza testified that he told Plaintiff if she needed more time, she would have to call HR and they would ask her to send in a doctor's certificate.8
32. Defendant FPF accounted for the first two weeks of Plaintiff's time off as vacation.
33. None of the supervisors Plaintiff spoke to advised Plaintiff of her Family Leave rights and obligation before she left for Guatemala.
34. Defendant did not request Plaintiff provide a medical certification by a certain date, nor did it inform her of the consequences of not doing so.
35. Although Defendant did not inform Plaintiff of any obligations or procedures under FMLA or consequences of noncompliance, Defendant asserts Plaintiff knew of the procedure to obtain FMLA and CFRA leave as Plaintiff admits she obtained FMLA leave from FPF on twelve prior occasions.
36. Of these approved Family leaves, nine were for Plaintiff's personal health condition, and three were for a family member.9
37. Plaintiff stayed in Guatemala past her scheduled two week leave.
38. Plaintiff claims in late November or early December she unsuccessfully attempted to call Defendant's H.R. office from a public telephone in Guatemala.
39. Plaintiff further claims she attempted to fax medical certifications to Defendant.
40. Neither the fax nor the call went through.
41. There is no corroboration of either assertion.
42. When Plaintiff did not come to work or call FPF within three days, Defendant terminated Plaintiff pursuant to the Union's Collective Bargaining Agreement (“CBA”) 10 which provides:
4.3 An individual's employment with the Employer shall be terminated, and the employee ... loses all seniority, when any of the following occurs:
...
4.3.4 The employee fails to report for work at the end of a leave of absence unless such ... failure is due to circumstances beyond the employee's control;
...
4.3.7 The employee is absent for a period of three (3) days in cases of emergency beyond the ... employee's control, and fails to notify the Employer and secure a leave of absence. (“Three Day Rule”)
43. On or about December 26, Plaintiff faxed a medical certification from Dr. Alvarez regarding her father's medical condition to Union Representative Carlos Valenzuela.
44. FPF received the certification December 27, 2007.
45. On January 2, 2008, Plaintiff gave Defendant Dr. Perez's certification regarding her father's health condition.
46. Defendant's experienced labor relations manager, Jon Diaz, conducted an investigation to consider Plaintiff's request for reinstatement.
47. Defendant refused to reinstate Plaintiff.
48. Plaintiff's Union filed a Grievance on her behalf.
49. A Board of Adjustment under the CBA upheld Plaintiff's termination.
50. The vote was 4–0 to uphold termination.
51. Plaintiff challenged the Union's decision not to arbitrate the Grievance before the NLRB.11
52. The NLRB upheld the Union's decision.
53. Plaintiff did not file a timely appeal.
54. Plaintiff filed a claim for unemployment benefits.
55. A hearing was held to determine whether Plaintiff voluntarily left her job with Defendant without good cause and whether Plaintiff provided E.D.D. with the documents required to establish her identity.
56. At the Unemployment Insurance hearing, Plaintiff testified in response to questions by the administrative law judge that she knew that the employer policy was that if she missed three consecutive...
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