Faust v. California Portland Cement Co.

• Decision Date: 10 May 2007
• Docket Number: No. B190950.,B190950.
• Citation: 58 Cal.Rptr.3d 729,150 Cal.App.4th 864
• Court: California Court of Appeals Court of Appeals
• Parties: Michael FAUST, Plaintiff and Appellant, v. CALIFORNIA PORTLAND CEMENT COMPANY, Defendant and Respondent.

58 Cal.Rptr.3d 729

150 Cal.App.4th 864

Michael FAUST, Plaintiff and Appellant, v. CALIFORNIA PORTLAND CEMENT COMPANY, Defendant and Respondent.

No. B190950.

Court of Appeal, Second District, Division 3.

May 10, 2007.

Horton & Lines, Horton & DeBolt and Laura L. Horton, Chatsworth, for Plaintiff and Appellant.

Jackson Lewis, Robert D. Vogel and Joanie L. McGuire, Los Angeles, for Defendant and Respondent.

KLEIN, P.J.

Plaintiff and appellant Michael Faust (Faust) appeals a judgment following a grant of summary judgment in favor of his former employer, defendant and respondent California Portland Cement Company, a California corporation (Portland).

The gravamen of this action is Faust's claim he was terminated in violation of his right to medical leave under the California Family Rights Act (CFRA) (Gov.Code, § 12945.2),¹ a part of the California Fair Employment and Housing Act (FEHA) (§ 12900 et seq).

From the extensive papers on summary judgment, we glean a few key facts. First, here is nothing in the separate statements of undisputed facts to indicate Portland posted notice or gave notice to Faust of his leave rights under the CFRA. (Cal.Code Regs., tit. 2, § 7297.9.)² The separate statements establish that Portland's human resources manager admitted she never informed Faust of any right he may have to leave under the CFRA. The separate statements further establish (1) the employer admitted that Faust "provided verbal notice sufficient to make [the employer] aware that he needed leave pursuant to CFRA"; and (2) the employer admitted the work status report of Dr. Andalib, Faust's chiropractor, "contains the stated reason for CFRA leave."

Thus, the state of the record is that Faust provided sufficient information to the employer to advise it of his need for leave pursuant to the CFRA, and that the employer did not give notice to Faust of his right to leave under the CFRA. As explained, from these facts flow certain legal consequences. Therefore, the judgment in most respects is reversed and the matter is remanded for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND³

1. Facts.

Faust began working at Portland in 1977. At the relevant time herein, in 2003, Faust worked at Portland's Mojave plant as a union-represented lube specialist in a garage supervised by Hank Schrader (Schrader).

On Friday, February 21, 2003, plant manager Bruce Shafer (Shafer) received an email from Faust stating that various unnamed employees at the garage had engaged in internal theft and misconduct. Shafer showed the email to the plant's human resources manager, Crystal Andersen (Andersen).

On February 26, 2003, Shafer met with Schrader and Schrader's supervisor to discuss the allegations. Later that day, Schrader went back to the garage and told the employees about Faust's email.

The following day, February 27, 2003, was Faust's last active day of employment with the company. That morning, Faust arrived for his regularly scheduled shift. Bill Buchanan, a fellow employee who was supposed to drive Faust to the work site, did not pick up Faust, requiring Faust to walk to the site. At lunch, Faust saw Buchanan and asked him why he had failed to pick him up. Buchanan responded that Schrader had returned from a meeting with Shafer and told the workers that Faust had sent an email accusing them of theft and that everyone should "watch their backs."

Faust was disturbed the contents of the email had been divulged to his coworkers and began to experience shortness of breath, confusion, panic attacks and feelings of despair. Faust needed assistance with a particular piece of equipment and radioed the garage. The garage did not respond to his call. Faust returned to the garage and when he walked in, he was given the "cold shoulder." Realizing the situation had escalated and fearing for his safety, Faust took a time-off slip and filled it out. Schrader was angry, denied the request for time off, and told Faust he was not going to get any time off until he was satisfied Faust had his job duties under control.

Faust returned to his truck and went up into the quarry. Without radio connections to the garage, Faust was in a dangerous situation, driving a large fuel truck into remote areas of the quarry, and his coworkers would not respond to his requests for assistance. Faust began to experience extreme anxiety and other symptoms. He called a supervisor, Ron Bergloff, and told him what had happened. They agreed that Faust would leave the premises and Bergloff escorted him to the front office. Faust never returned to work after the day.

Five days later, on March 4, 2003, Faust began a 30-day psychiatric program at Kaiser Permanente. On March 8, 2003, Faust filed a workers' compensation claim and his attorney advised Portland of the claim.

By March 17, 2003, Faust was experiencing severe lower back pain. The pain was so severe that Faust was walking like a "question mark."

Faust provided Portland with a documentation of medical impairment from Kaiser from March 4, 2003 through April 3, 2003, documenting a diagnosis or reason for impairment as "anxiety/stress/phobic disorders, depressive, Bipolar/Mood disorders." The psychiatric benefits through Kaiser end after 30 days, irrespective of the status of treatment, and therefore, the Kaiser certification ended April 3, 2003. However, Faust was told by his psychiatrist at Kaiser to stay away from stressful situations. Faust was still experiencing severe back pain and was undergoing chiropractic treatment.

On March 31, 2003, Faust received a medical certification form from his chiropractor, Dr. Andalib, and delivered it to Portland the next day. The note recommended physiotherapy, chiropractic therapy and rest, and stated "[t]he patient is unable to perform regular job duties from 3-31-03 to 5-1-03."

On April 1, 2003, Andersen, Portland's human resources manager, left a message on Faust's home answering machine stating she had some problems with the chiropractic certificate that he had dropped off earlier that day and wanted to speak to him about it right away. That same day or the next day, Mrs. Faust returned Andersen's call and left a voice message stating Andersen could speak with Mrs. Faust, the chiropractor or the worker's compensation attorney. Mrs. Faust left a second message for Andersen on April 4 or 5, 2003, reiterating that Andersen could speak to her, the chiropractor or the worker's compensation attorney, and that Faust was "too stressed out" to speak with Andersen.

Andersen did not contact any of the three individuals designated by Faust.

On April 7, 2003, Andersen again called Faust's home and left a message stating she needed to speak with him directly regarding his employment and the chiropractic certificate.

On April 8, 2003, Andersen sent Faust a letter which stated in pertinent part: "However, the slip you dropped off last Tuesday, was from a Chiropractor (not a Physician/Medical Doctor). It also did not place you off work. The section entitled `Authorization for Absence' was left blank. However, the area that was completed, entitled `Work Status Report' stated that you were `unable to perform regular job duties from 3/31/03 to 5/1/03, "but listed no restrictions." Thus, the paperwork was incomplete and we have been unable to determine what modified duties you may be able to perform.' [¶] `Because you did not return to work on 4/3/03, as your Kaiser medical documentation released you to do, I believe that you may have intended (though in error) to continue your absence through the Chiropractic slip you dropped off last week. The paperwork is inappropriate (not a physician's slip) as well as.it is incomplete (returning you to some form of modified work, instead of requesting an absence).'"

Faust was advised by his workers' compensation attorney that if Portland had a problem with his work status report, it was required to contact either his workers' compensation attorney or his doctor, and counsel directed him not to respond to the April 8, 2003 letter.

Andersen never informed Faust of the availability of medical leave under the CFRA or its federal counterpart, the Family and Medical Leave Act of 1993 (29 U.S.C. § 2601 et seq.) (FMLA), and he did not know he could avail himself of those protections. He believed Andersen would contact his workers' compensation attorney in response to Mrs. Faust's voicemail message, based on his prior dealings with Portland. The previous human resources person at Portland routinely contacted employees' doctors for clarification.

On April 15, 2003, Andersen sent a final letter to Faust stating his employment had been terminated. The letter stated "the paperwork you submitted on 4/1/0[3] was insufficient to sustain an approved absence from work." Thus, Faust was terminated less than seven weeks after his last day on the job.

2. Proceedings.

a. Pleadings.

After filing a charge with the Department of Fair Employment and Housing and receiving a right-to-sue letter, Faust filed suit against Portland on September 17, 2004. The complaint alleged causes of action for disability discrimination in violation of the FEHA (§ 12900 et seq.); harassment based on disability; retaliation; wrongful termination in violation of public policy; violation of the CFRA; discrimination because of exercise of CFRA rights; and unfair competition (Bus. & Prof.Code, § 17200 et seq.).

b. Motion for summary judgment.

On August 12, 2005, Portland filed a motion for summary judgment or in the alternative, for summary adjudication of issues.

With respect to the first cause of action, disability discrimination, Portland asserted, inter alia, at the time of Faust's termination on April 15, 2003, he did not have a disability within the meaning of the FEHA, it did not know whether Faust had an alleged disability, it did not perceive him as a qualified individual with a disability, and Faust was not discharged because of an alleged disability. Further, it had...