Lonicki v. Sutter Health Cent.

• Citation: 180 P.3d 321,74 Cal.Rptr.3d 570,43 Cal.4th 201
• Decision Date: 07 April 2008
• Docket Number: No. S130839.,S130839.
• Court: United States State Supreme Court (California)
• Parties: Antonina LONICKI, Plaintiff and Appellant, v. SUTTER HEALTH CENTRAL, Defendant and Respondent.

74 Cal.Rptr.3d 570

43 Cal.4th 201

180 P.3d 321

Antonina LONICKI, Plaintiff and Appellant, v. SUTTER HEALTH CENTRAL, Defendant and Respondent.

No. S130839.

Supreme Court of California.

April 7, 2008.

Martin F. Jennings, Jr., Granite Bay, The deRubertis Law Firm, David M. deRubertis and David A. Lesser, Woodland Hills, for Plaintiff and Appellant.

Patricia A. Shiu, Elizabeth Kristen, Sharon Terman and Joseph R. Grodin, San Francisco, for Asian Law Caucus, California Employment Lawyers' Association, California Women's Law Center, Disability Rights Education and Defense Fund, Inc., Equal Rights Advocates and The Legal Aid Society—Employment Law Center as Amici Curiae on behalf of Plaintiff and Appellant.

Riegels Campos & Kenyon, Kenyon Yeates, Jeffrey Owensby and Charity Kenyon, Sacramento, for Defendant and Respondent.

Latham & Watkins, Joel E. Krischer, Los Angeles, and Kristin R. Lewis for Employers Group and California Employment

Law Council as Amici Curiae on behalf of Defendant and Respondent.

KENNARD, J.

Under the Moore-Brown-Roberti Family Rights Act (Gov.Code,¹ §§ 12945.1, 12945.2; hereafter CFRA) a full-time employee is entitled to a medical leave of absence for a "serious health condition" that makes the employee "unable to perform the-functions of the position of that employee." (§ 12945.2, subd. (c)(3)(C).) In this case, an employee claiming major depression and work-related stress stopped coming to work and requested medical leave. In the employer's view, the employee did not have a serious health condition and was capable of performing her duties. The employer ordered the employee to return to work, and fired her when she did not. The employee sued.

We address two issues:

First, does an employer's failure to invoke the CFRA's dispute-resolution mechanism of having a health care provider jointly chosen by the parties determine the employee's entitlement to medical leave bar the employer from later claiming that the employee did not suffer from a serious health condition and was capable of performing her job? Our answer is "no."

Second, if a full-time employee, during the period in which medical leave was sought, continued to perform a similar job for another employer on a part-time basis, does that conclusively establish the ability to do the job for the original employer? We conclude that, although that part-time job is evidence of ability to do similar work for the original employer from whom the employee has sought medical leave, that evidence is not conclusive. Here, because the parties have presented contrary evidence as to whether the employee had a serious health condition that made her unable to do her full-time job, there is a disputed issue of fact that must be resolved at trial.

I

"Because this case comes before us after the trial court granted a motion for summary judgment, we take the facts from the record that was before the trial court when it ruled on that motion. [Citation.] `"We review the trial court's decision de novo, considering all the evidence set forth in the moving and opposing papers except that to which objections were made and sustained."' [Citation.] We liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party. [Citation.]" (Yanowitz v. L'Oreal USA Inc. (2005) 36 Cal.4th 1028, 1037, 32 Cal.Rptr.3d 436, 116 P.3d 1123.)

In 1989, Sutter Health Central (defendant) hired plaintiff Antonina Lonicki to work in the housekeeping department at its hospital in Roseville. In 1993, plaintiff became a certified technician in the hospital's sterile processing department. Her work performance was good and her attendance was excellent.

In June 1997, the hospital became a level II trauma center. That change, according to plaintiff, led to a major increase in her workload and more stress. The workers in plaintiffs unit asked for more help, to no avail. In November 1998 the hospital announced that it would lay off three people. In December 1998, plaintiffs supervisor and the director resigned. They were replaced by Pat Curtis and Steve Jatala, respectively. Actions by Pat Curtis increased plaintiffs stress. She consulted a doctor.

On July 26, 1999, when plaintiff arrived at work for her 8:00 a.m. shift, supervisor Curtis told her that her new shift would be from noon to 8:30 p.m. Curtis denied plaintiffs request for a vacation. Plaintiff went home in tears. After talking to her union representative, she telephoned Curtis and said she was too upset to work. That afternoon, Curtis left a message on plaintiffs telephone answering machine conveying director Steve Jatala's request that she get medical authorization for her absence.

Plaintiff called her primary care physician, Dr. Roy Harris, but was told that he was on vacation. His office gave her an appointment the next day with a family nurse practitioner, Joe Lobacarro. Plaintiff saw Lobacarro, who gave her a note for a one-month leave of absence for "[m]edical reasons." He also referred her to a therapist. Later that day, plaintiff brought the note to her employer; she also filled out a form requesting a one-month leave of absence, which she gave to supervisor Curtis.

On August 2, 1999, director Jatala told plaintiff to see Dr. Michael Cohen, an occupational health physician chosen by defendant employer. Plaintiff did so on August 4, 1999. After talking to plaintiff for two or three minutes, Dr. Cohen concluded that plaintiff was able to return to work without restrictions, which he stated in a brief written report prepared for defendant. On August 6, director Jatala telephoned plaintiff and told her to return to work on August 9 or face dismissal. Plaintiff talked to a union representative, who suggested that she follow the medical advice given by her primary physician, Dr. Roy Harris. When she discussed the matter with Dr. Harris, he referred her to Psychologist Janice Pettis. Plaintiff saw Pettis on August 11, and thereafter saw her weekly until August 31,1999.

On August 17, 1999, director Jatala telephoned plaintiff and asked when she would come back to work. Plaintiff replied that on the advice of her doctors, she would return no sooner than August 27. Thereafter Jatala sent a letter to plaintiff stating that he had discussed the matter with plaintiffs union representative, Mike Egan, and that Jatala would allow plaintiff paid time off—not medical leave—but that plaintiff had to return to work by August 23 or face dismissal.² On August 24, plaintiff received the letter.

On August 26, plaintiff consulted Dr. Frank Capobianco, a psychiatrist. He wrote her a note stating that she was "disabled by major depression," that her symptoms were "work related," that she required "sick leave," and that her medical leave should be extended to September 26, 1999. The next day, plaintiff delivered the note to director Jatala. He told her to go to the human resources department, which told her that she had been discharged for failure to appear for work on August 23 and August 24, 1999.

After obtaining a right-to-sue letter from the Department of Fair Employment and Housing, plaintiff sued defendant employer for violating the CFRA by firing her and by failing to follow CFRA procedures when questioning the validity of her sick leave. Defendant moved for summary judgment. As pertinent here, defendant argued that plaintiff was not entitled to medical leave under the CFRA because, in the period for which she sought medical leave, she had a part-time job at a different hospital (Kaiser) where her tasks were substantially similar to those she was hired to perform at defendant's hospital in Roseville. This part-time job with Kaiser, defendant asserted, showed that plaintiff did not have a "serious health condition" that made her "unable to perform the functions" of her full-time job for defendant, as required under the CFRA. (§ 12945.2, subd. (c)(3)(C).) Thus, according to defendant, plaintiff did not qualify for CFRA medical leave, and hence her discharge by defendant did not violate the CFRA.

Plaintiff responded that whether she had a serious health condition that left her unable to do her job at defendant's hospital in Roseville was a disputed issue of fact. She also asserted that because of defendant's failure to submit that dispute to a health care provider jointly chosen by the parties, a decision that would have been binding (see § 12945.2, subd. (k)), defendant was estopped from arguing that plaintiff did not satisfy the statutory criteria for medical leave.

The trial court rejected plaintiffs estoppel argument. It agreed with defendant that plaintiffs part-time job at Kaiser during her leave of absence from defendant's employment "showed that she could perform the essential functions of her job" for defendant. The court granted defendant's motion for summary judgment. Plaintiff appealed from the ensuing judgment of dismissal, which the Court of Appeal later affirmed. We granted plaintiffs petition for review.

II

The CFRA applies to companies with 50 or more employees; it allows an employee up to 12 weeks of unpaid "family care and medical leave" if the employee has worked for the company for more than a year, and has at least 1,250 hours of service during the previous year. (§ 12945.2, subd. (a).) Grounds for the leave are family needs such as the birth or adoption of a child, serious illness of a family member, or, as relevant here, when "an employee's own serious health condition ... makes the employee unable to perform, the functions of the position of that employee." (§ 12945.2, subd. (c)(3)(C), italics added.) The CFRA defines a "[s]erious health condition" as "an illness, injury, impairment, or physical or mental condition that involves either of the following: [¶] (A) Inpatient care in a hospital, hospice, or residential health care facility. [¶] (B) Continuing treatment or continuing supervision by a health care provider." (§...