Espindola v. Apple King

• Decision Date: 29 November 2018
• Docket Number: No. 35262-5-III,35262-5-III
• Citation: 430 P.3d 663
• Court: Washington Court of Appeals
• Parties: Maria G. ESPINDOLA, Petitioner, v. APPLE KING, a Limited Liability Company, Respondent.

430 P.3d 663

Maria G. ESPINDOLA, Petitioner,

v.APPLE KING, a Limited Liability Company, Respondent.

No. 35262-5-III

Court of Appeals of Washington, Division 3.

FILED NOVEMBER 29, 2018

Favian Valencia, Sunlight Law, PLLC, 402 E Yakima Ave. Ste. 730, Yakima, WA, 98901-2787, for Petitioner.

Gary Edward Lofland, Gary Lofland, 230 S 2nd St. Ste. 101, Yakima, WA, 98901-2865, for Respondent.

PUBLISHED OPINION

Pennell, A.C.J.¶ 1 Under the state and federal family medical leave acts, an employee who is incapacitated due to a serious medical condition, such as pregnancy, has the right to take protected leave from work. This right persists even when an episode of incapacitation is unforeseeable. Should an employee invoke protected leave, including unforeseeable protected leave, an employer cannot use the employee’s actions as a negative factor in a subsequent employment decision. Doing so would constitute retaliation in violation of state and federal law.

¶ 2 While employed with Apple King, Maria Espindola discovered she was pregnant. Over the course of her pregnancy, Ms. Espindola experienced medical complications that caused her to miss work. Apple King was aware of Ms. Espindola’s pregnancy and knew she had experienced some health problems. Nevertheless, Apple King used some of Ms. Espindola’s work absences as negative factors in its ultimate decision to terminate employment. According to Apple King, Ms. Espindola was properly penalized because she failed to comply with the company’s attendance policy, requiring at least one day’s advance notice of all medical absences not involving hospitalization.

¶ 3 Apple King’s reliance on its attendance policy is unavailing. Because Apple King’s policy did not account for an employee’s right to take unforeseeable protected leave, Ms. Espindola’s failure to comply with the policy was not a legitimate basis for an adverse employment action. Given that Ms. Espindola has produced sufficient facts to demonstrate Apple King was on notice of her need for unforeseeable protected leave, Apple King is not entitled to summary judgment on Ms. Espindola’s retaliation claim. This matter is therefore reversed.

FACTS

¶ 4 Apple King operates a fruit warehouse and packing facility in Yakima County, Washington. Maria Espindola worked for Apple King from August 2, 2007, to April 20, 2012. On May 1, 2011, Apple King implemented an attendance policy. Ms. Espindola received and signed a copy of the policy on August 14, 2011. The policy provides:

As of May 1^st, 2011, [Apple King] will put into practice a revised 24 point attendance scoring system. Each employee will have 24 points to use up between May 1^st and the last day of April. You will start with 0 points and each attendance infraction will be counted in the following manner.

NO POINTS will be counted for appts. with 24 hr. notice and proof of appt.2 Points for not giving 24 hr. notice regardless of proof2 Points for being Tardy2 Points for leaving before end of shift without proof of appointment3 Points per absence without proof of appointment (unless you use a Vacation Day)12 Points for a NO CALL-NO SHOWNo points will be counted for L&I appointments.

If you reach the 24 point mark before the designated time, your employment with Apple King, LLC will be terminated. It is very important to understand that this will be the same for all Packing House employees. Every 1^st of May each employee will start with 0 points once again only if they have managed not to reach the 24 point mark by the end of the last day of April. We strongly encourage you to set up your appointments on your day(s) off.

Clerk’s Papers (CP) at 233.

¶ 5 According to an Apple King representative, employees were verbally notified that no points would be assessed against them for attending funerals or for emergencies such as hospitalizations or car accidents. Apple King’s attendance policy did not reference the federal or state medical leave acts. Nor did the policy explain how Apple King would account for leave that is protected under state or federal law. According to testimony from Apple King, the decision of whether to assess points for an employee absence is determined solely by the company’s attendance policy.

¶ 6 In June or July 2011, Ms. Espindola discovered she was pregnant and reported her condition to her supervisor. Ms. Espindola was then absent from work on July 20, 21, and 22. She produced a doctor’s note dated July 21 stating she had been prescribed two days’ bed rest. Pursuant to Apple King’s attendance policy, Ms. Espindola was assessed two points for her absence on July 20 because she only provided same-day notice of a medical appointment.

¶ 7 In August 2011, Ms. Espindola developed kidney stones. Ms. Espindola was hospitalized from August 21 to 25, 2011, and submitted a doctor’s note stating she was not clear to return to work until after a follow-up appointment on August 31. The doctor’s note did not provide the reason for Ms. Espindola’s hospitalization, but according to Ms. Espindola she had been hospitalized due to the kidney stones. Apple King did not assess Ms. Espindola any attendance points for her hospitalization. It is unclear whether Apple King knew of the reason for Ms. Espindola’s hospitalization, but the company did at least know that Ms. Espindola had been hospitalized during the course of her pregnancy.

¶ 8 In the months following her hospitalization, Ms. Espindola had numerous medical appointments. Apple King was advised of the appointments, and Ms. Espindola was not assessed any attendance points for those absences. Ms. Espindola was also permitted to take time to check her blood sugar at work after reporting that she had been diagnosed with gestational diabetes. Ms. Espindola’s gestational diabetes did not cause her to miss work.

¶ 9 The last full month of Ms. Espindola’s pregnancy was December 2011. During that month, Ms. Espindola left work early on three occasions. She was assessed two attendance points on each date. Also in December, Ms. Espindola missed a day of work and provided same-day notice of her absence. Ms. Espindola was assessed three points on this occasion. Ms. Espindola did not provide any doctors’ notes explaining her December absences. However, Ms. Espindola has testified that she had told her supervisor she was in debilitating pain from kidney stones. According to Ms. Espindola, her supervisor provided permission to either leave work early or stay at home, as at times she was unable to work due to the pain. Apple King did not request medical documentation from Ms. Espindola to verify her explanations.

¶ 10 Ms. Espindola began her maternity leave on January 9, 2012, and returned to work on March 4. During her maternity leave, Ms. Espindola reportedly had her kidney stones removed. Apple King did not assess Ms. Espindola any attendance points for her maternity leave.

¶ 11 Apple King fired Ms. Espindola on April 20, 2012, because she had exceeded the 24 points allowed annually by the company’s attendance policy. The following chart illustrates Ms. Espindola’s absences from work between May 1, 2011, and April 20, 2012, and the points she was assessed under the attendance policy:

                Date Disposition Reason for Absence Points Record
                and/or Disposition (CP)
                  May 20, 2011      Unexcused       Left work early (late proof of            2        239-40
                                                             appointment)
                  June 6, 2011       Excused              Dental appointment                  0        252-53
                  June 10, 2011      Excused              Doctor appointment                  0        252-53
                  July 8, 2011       Excused          Illness (bladder infection)             0        254-55
                  July 12, 2011      Excused               Doctor appointment                 0        256-57
                  July 20, 2011     Unexcused       Left work early (same day notice of       2        38, 50
                                                              appointment)                               258
                  July 21, 2011      Excused        Illness (note from doctor dated July      0        38, 50
                                                       21 calls for 2 days bed rest)                   258-59
                

                  July 22, 2011      Excused        Illness (note from doctor dated July      0         38, 50
                                                       21 calls for 2 days bed rest)                    258-59
                  Aug. 1, 2011       Excused               Doctor appointment                 0         260-61
                  Aug. 21 to 25,     Excused          Hospitalization (note from doctor       0         262-63
                      2011                         states she cannot return to work until
                                                     after her follow-up appointment on
                                                                  Aug. 31)
                  Sept. 9, 2011      Excused           Doctor appointment (for imaging         0        264-65
                                                                  studies)
                  Sept. 16, 2011     Excused                 Doctor appointment                0        266-67
                  Sept. 17, 2011     Excused             Left work early (illness)             0          266
                  Oct. 11, 2011      Excused                 Doctor appointment                0        268-69
                  Oct. 12, 2011      Excused          Doctor appointment (for laboratory       0        268, 270
                                                                   studies)
                  Oct. 25, 2011     Unexcused        Doctor appointment (no excuse slip)       2          243
                  Nov. 10, 2011     Unexcused          Absent without advance notice           3        134-35
                                                               (called same day)                        244, 756
                  Nov. 22, 2011      Excused                  Doctor appointment               0          271
                  Dec. 9, 2011      Unexcused                  Left work early                 2          245
                  Dec. 19, 2011     Unexcused                  Left work early                 2          246
                  Dec. 20, 2011     Unexcused              Absent (called same day)            3

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