Santiago v. Lamont Elementary Sch. Dist.
| Decision Date | 17 November 2022 |
| Docket Number | F081465 |
| Parties | MARY SANTIAGO, Plaintiff and Appellant, v. LAMONT ELEMENTARY SCHOOL DISTRICT, Defendant and Respondent. |
| Court | California Court of Appeals Court of Appeals |
MARY SANTIAGO, Plaintiff and Appellant,
v.
LAMONT ELEMENTARY SCHOOL DISTRICT, Defendant and Respondent.
F081465
California Court of Appeals, Fifth District
November 17, 2022
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County. No. BCV-17-100875 Stephen D. Schuett, Judge.
Law Offices of Parnell Fox and Parnell Fox for Plaintiff and Appellant.
Herr Pedersen & Berglund, Leonard C. Herr and Caren L. Curtiss for Defendant and Respondent.
OPINION
PEÑA, J.
Mary Santiago (plaintiff) was employed as a receptionist by the Lamont Elementary School District (defendant) for 19 years. She had tardiness and attendance issues throughout her career, especially during her last three years on the job. Aside from occasional warnings, defendant was generally tolerant of those issues until plaintiff was
discovered to have secretly recorded a meeting with defendant's assistant superintendent. She was placed on administrative leave pending a formal investigation and was ultimately fired for cause. The stated grounds for dismissal included "chronic attendance and punctuality deficiencies" and "insubordination" in connection with the recorded meeting.
Plaintiff sued defendant for disability discrimination under the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.). In addition to other related FEHA claims dependent upon the existence of a disability, she also pleaded a whistleblower claim under Labor Code section 1102.5. Plaintiff alleged her firing was in retaliation for "refusing to cooperate in covering up a $300,000 misappropriation of funds," and for having discovered and reported that the assistant superintendent lied about his credentials in his employment contract with the school district. The Labor Code claim was summarily adjudicated in defendant's favor prior to trial. Defendant successfully moved in limine to exclude any evidence concerning the whistleblower allegations during trial, leaving plaintiff to rely solely upon her disability contentions.
A jury found plaintiff did not have a physical or mental disability that limited her ability to perform the essential functions of her job. This finding was dispositive of all remaining causes of action, and judgment was entered for defendant. Plaintiff now seeks reversal and a new trial on the ground of insufficient evidence. In essence, she claims the existence of a qualifying disability was proven as a matter of law.
The evidence showed plaintiff was treated for multiple ailments during the relevant time period: allergic rhinitis, chronic fatigue syndrome, depression, fibromyalgia, gastroesophageal reflux disease, reactive airway disease, and type 2 diabetes. However, plaintiff failed to develop or substantiate the argument that those conditions had a limiting effect on her job performance. For example, during opening statements plaintiff's counsel attributed her persistent tardiness to "taking medication that took time to [take] effect to stop her from vomiting so she [could] go to work." But no
evidence of such vomiting was ever presented or even alleged by any witnesses, including plaintiff herself. She only briefly testified that a later start time would have enabled her "to take my medication early in the morning and allow to effect [sic] so that way I could make it to work on time." She never explained what the medication was, the symptoms it controlled, or how long it took to take effect.
The existence of a qualifying disability was closely tied to the issue of plaintiff's credibility, which was called into question in several ways. Further supporting the jury's verdict was plaintiff's admission, under oath, that her health problems "didn't affect my ability to do my job." We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff was hired by defendant as a permanent full-time receptionist in November 1995. She and her coworkers in the small office of the rural school district were frequently asked to perform tasks outside of their job classification. Over time, plaintiff's job duties consisted of not only greeting visitors and answering phones, but also secretarial work, data entry and analysis, preparation of reports, and interpreter/translation services (she was bilingual in Spanish and English).
Plaintiff's "frequent tardies" were documented as early as 1996. In her 2003 and 2010 performance evaluations, plaintiff's attendance was rated below average. Her attendance rating improved to average in 2011, but she was "counseled that there was concern over her attendance and the fact she was not contacting the office when she was late or not showing up at all."[1]
Ricardo Robles was hired as defendant's superintendent in 2011. Jose Cantu became the assistant superintendent on July 1, 2012, the first day of the 2012-2013 school year. Robles and Cantu thereafter shared the responsibility of overseeing plaintiff's job duties.
From at least July 2012 onward, plaintiff was better about calling the office when running late. The record on appeal contains over 60 e-mails memorializing phone conversations between plaintiff and the employee who documented late arrivals. The employee testified to typing the e-mails and sending them to Cantu (and usually the rest of the office) immediately upon hanging up with plaintiff. The correspondence thus reflected the time plaintiff had called in and the explanation she provided for being late.
During the last four months of 2012, plaintiff was late for work at least 18 times. Her daily start time was 7:30 a.m., but she typically waited until between 7:45-8:00 a.m. before calling to advise that she was behind schedule. In most instances, plaintiff merely claimed to be "running late." The e-mails show only two full-day absences between August 2012 and the end of the calendar year. Both absences were generically attributed to being "sick."[2]
On January 2, 2013, plaintiff was absent from work. The record suggests Cantu was not expecting plaintiff to be out and questioned her about it. On January 3, 2013, at 1:45 a.m., plaintiff sent Cantu the following message: "Happy New Year! [¶] I will be out of the office this week on vacation. [¶] My doctor's appointment was a personal appointment, not sure why I would need to bring in a doctor's note on my release since I was not under doctor's care. [¶] Please clarify the request for a doctor's note."
Cantu replied to plaintiff's message at 7:22 a.m.:
"Good Morning, [¶] I'm concerned about your attendance . . .. Your health is your business, however if your health is the major issue which seems to be impeding your attendance, we can ask for a doctor's note. If it was personal, personal days are available but you may be out of those too. This was my first attempt to get at my continued concerns about your attendance and tardiness. My concerns have escalated now that you want to take vacation. [¶] I look forward to meeting with you upon your return."
Superintendent Robles was copied on Cantu's message to plaintiff. Several hours later, plaintiff wrote back:
"Good Afternoon Mr. Cantu, [¶] In response to your request I've scheduled an appointment with my primary doctor. I have an appointment on Tuesday [1/8/13] at 4pm and will need to leave the office at 3:15pm. I will have them fax you a copy of the doctor's note as per your request of the outcome of my appointment addressing your concerns."
On January 8, 2013, Cantu e-mailed plaintiff with a request for her "Attendance History 2012-2013 Card and accompanying Absence Request Forms for the last month." Later that afternoon, plaintiff obtained a note from her primary care physician, Rosemarie Dellica, M.D. (Dr. Dellica). The note did not specifically address plaintiff's absences or tardiness. It read:
"To whom it may concern:
"[Plaintiff] has been under my care since 10/2/2012. She has been treated for the following medical conditions:
"- Chronic fatigue syndrome
"- Fibromyalgia
"- Depression anxiety
"- Reactive airway disease and allergic rhinitis
"- Diabetes mellitus type 2
"- Gastroesophageal reflux disease"[3]
On January 28, 2013, Cantu sent a group message to six employees, including plaintiff, regarding the "need to be better organized in terms of when we can expect folks to be at their respective desks" to ensure the constant presence of someone to answer phones and cover the front counter. The employees were asked to provide their regular work hours and break times. Plaintiff wrote back confirming her schedule of 7:30 a.m. to 4:00 p.m., with a morning break at 9:30 a.m.; a 30-minute lunch from 11:30 a.m. to 12:00 p.m.; and another break at 2:30 p.m.
Plaintiff was significantly late for work approximately 40 times during the 2013 calendar year. As before, she often waited until she was already 15 to 30 minutes behind schedule before calling in to the office. Many of her excuses were distinctly nonmedical in nature. Examples included "fog," "received a phone call that her sister-in-law is not doing too well," "a small emergency at her daughter's apartment," "needs a ride," "carless [and] trying to get a ride," "board meeting finished late last night," "personal business came up," "couldn't find the keys to the car," "[car] battery is dead," "son had a flat [tire]." There were a dozen occasions when no explanation was given. The relatively few health-related excuses were vague and/or had no clear relationship to the afflictions listed on Dr. Dellica's earlier note, e.g., "woke up with a headache," "feeling sick," "lower back is bothering her," "needs to go buy pills for her ear infection," "not feeling well."
Plaintiff accounted for her late arrivals, early departures, and absences by using quarter hour (.25) increments of sick leave and vacation time. She occasionally used "personal emergency" time, which the record indicates was essentially sick leave...
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