Sam Razo v. Timec Company, Inc. et alSecond MOTION for Summary Judgment or, in the Alternative, Summary Adjudication; Memorandum of Points and AuthoritiesN.D. Cal.June 22, 20171 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 Case No. 3:15-cv-03414-MEJ DEFENDANT’S SECOND MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION Patrick C. Mullin (State Bar No. 72041) Douglas G.A. Johnston (State Bar No. 268880) JACKSON LEWIS P.C. 50 California Street, 9th Floor San Francisco, California 94111-4615 Telephone: (415) 394-9400 Facsimile: (415) 394-9401 E-mail: mullinp@jacksonlewis.com E-mail: douglas.johnston@jacksonlewis.com Attorneys for Defendant TIMEC COMPANY, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAM RAZO, Plaintiff, v. TIMEC COMPANY, INC.; TRANSFIELD SERVICES, LTD.; and DOES 1-50 inclusive, Defendants. Case No. 3:15-cv-03414-MEJ NOTICE OF DEFENDANT TIMEC COMPANY INC.’S SECOND MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION; MEMORANDUM OF POINTS AND AUTHORITIES Date: August 3, 2017 Time: 10 a.m. Ctrm.: B – 15th Fl. Judge: Maria-Elena James, Magistrate Judge Complaint Filed: July 24, 2015 Jury Trial: Vacated TO THE COURT, PLAINTIFF SAM RAZO AND HIS ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on August 3, 2017, at 10 a.m., or as soon thereafter as counsel may be heard, in Courtroom B, 15th Floor, of the United States District Court for the Northern District of California, located at 450 Golden Gate Avenue, San Francisco, California, 94102, Defendant TIMEC COMPANY, INC. (“Defendant”) will and hereby does move this Court, pursuant to Rule 56 of the Federal Rules of Civil Procedure, for summary judgment in Defendant’s favor and against Plaintiff Sam Razo (“Plaintiff”) on each of Plaintiff’s causes of action because: (1) Plaintiff cannot establish punitive damages in this case; (2) Plaintiff did not provide required certifications for any of his leaves, as a result his leaves were unprotected; (3) Plaintiff cannot Case 3:15-cv-03414-MEJ Document 124 Filed 06/22/17 Page 1 of 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 Case No. 3:15-cv-03414-MEJ DEFENDANT’S SECOND MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION refute the fact that, regardless of whether he went on leave or not, he would not have kept his position; (4) Plaintiff failed to exhaust his administrative remedies in two respects: first, he filed his DFEH charge one day too late to timely exhaust as it relates to his first leave; and second, to the extent the Court grants Plaintiff leave to amend, those newly added theories of liability are barred for failure to exhaust; and (5) Plaintiff’s constructive discharge claim fails as it is predicated on a violation of public policy that did not occur and because Plaintiff was not constructively discharged. The pleadings, depositions, declarations, and other supporting evidence show that no genuine issue of material fact exists as to any claim asserted by Plaintiff, and that Defendant are entitled to judgment as a matter of law. The motion is based upon this Notice of Motion and Motion, as well as the Memorandum of Points and Authorities, Defendant’s Separate Statement of Facts, the Declarations of Douglas G.A. Johnston, Benjamin Clough, Kelly Teel, Bonnie Morgan, John Gutierrez and Donald Brown, along with the supporting evidence attached thereto, as well as the pleadings on file with this Court, oral argument of counsel, and any other matters which this Court may properly consider. Dated: June 22, 2017 JACKSON LEWIS P.C. By: /s/ Douglas G.A. Johnston Patrick C. Mullin Douglas G.A. Johnston Attorneys for Defendant TIMEC COMPANY, INC Case 3:15-cv-03414-MEJ Document 124 Filed 06/22/17 Page 2 of 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 i Case No. 3:15-cv-03414-MEJ DEFENDANT’S SECOND MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION TABLE OF CONTENTS Page I. INTRODUCTION ............................................................................................................... 1 II. FACTS ................................................................................................................................. 1 A. Sam Razo ................................................................................................................. 1 B. TIMEC Company, Inc. ............................................................................................. 2 1. John Gutierrez .............................................................................................. 2 2. Richard Holt ................................................................................................. 3 3. Kelly Teel ..................................................................................................... 3 4. Bonnie Morgan ............................................................................................ 4 5. Kelley Cook ................................................................................................. 4 6. Donald Brown .............................................................................................. 5 C. Razo’s Medical Absences ........................................................................................ 6 1. Plaintiff’s First Medical Absence................................................................. 6 2. Plaintiff’s Second Medical Absence ............................................................ 6 3. Plaintiff’s Third Medical Absence ............................................................... 7 D. Razo performed the job functions of an expeditor, not a general foreman. ............. 7 E. Plaintiff is placed in the craft foreman position ....................................................... 8 F. Holt and Gutierrez reorganize the on-the-run group ................................................ 9 G. Plaintiff’s resignation and TIMEC’s offer to reinstate .......................................... 10 III. LEGAL ANALYSIS .......................................................................................................... 11 A. Applicable Standards ............................................................................................. 11 1. Standard on Summary Judgment ............................................................... 11 2. The applicable CFRA and FMLA regulations ........................................... 11 B. Plaintiff’s Claim for Punitive Damages Fails as a Matter of Law ......................... 13 C. Plaintiff’s CFRA Claim as it relates to his first leave is barred by the statute of limitations .......................................................................................................... 15 Case 3:15-cv-03414-MEJ Document 124 Filed 06/22/17 Page 3 of 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ii Case No. 3:15-cv-03414-MEJ DEFENDANT’S SECOND MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1. Plaintiff admits he was demoted as soon as he went on leave but waited one year and a day to file his charge. ............................................. 15 2. The continuing violation doctrine does not apply to separate leaves......... 16 D. Plaintiff’s CFRA Claims Fail because Plaintiff was not on protected leave. ........ 17 1. The CFRA standard on certification .......................................................... 17 2. To the extent TIMEC was under an obligation to follow-up with Plaintiff, it did so ........................................................................................ 17 a) TIMEC is under no obligation to follow-up with an employee who does not provide required certification ...................................17 b) There is no follow-up obligation under the CFRA .........................18 c) Even if there was an obligation to follow-up, TIMEC did so ..................................................................................18 d) The doctor's notes are not certifications, if they are, they are woefully inadequate ..........................................................19 E. Even had Plaintiff not been on leave, his position would have been reduced ....... 22 1. Assuming arguendo that Plaintiff did qualify for protected leave – which he did not – Plaintiff cannot overcome Defendants’ proof that Plaintiff’s would not have held his position as general foreman or craft foreman of the on-the-run welders’ group even if he had not taken leave. ................................................................................................. 22 F. Should the Court Allow Plaintiff’s Proposed Second Amended Complaint, Those Newly Added Theories of Liability are barred for failure to exhaust ......... 23 G. Constructive Discharge .......................................................................................... 24 IV. CONCLUSION .................................................................................................................. 25 Case 3:15-cv-03414-MEJ Document 124 Filed 06/22/17 Page 4 of 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 iii Case No. 3:15-cv-03414-MEJ DEFENDANT’S SECOND MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION TABLE OF AUTHORITIES Page(s) Cases Anderson v. Liberty Lobby, Inc., 477 U.S. 22 (1986) ....................................................................................................................11 Barton v. Alexander Hamilton Life Ins. Co. of America (2003) 110 Cal.App. 4th 1640 ..................................................................................................14 Beekman v. Nestle Purina Petcare Co., 635 F. Supp. 2d 893 ..................................................................................................................16 Bere v. MGA Healthcare Staffing, Inc., 2016 U.S. Dist. LEXIS 71453 (N.D. Cal. June 1, 2016) ..........................................................23 Brooks v. City of San Mateo, 229 F.3d. 917 (9th Cir. 2000) ....................................................................................................24 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ..................................................................................................................11 Cruz v. Homebase, 83 Cal.App. 4th 160 (2000).......................................................................................................13 Federico v. Overland Contracting, Inc., 2013 U.S. Dist. LEXIS 144146 (N.D. Cal. Oct. 4, 2013) .........................................................25 Hopkins v. Electronic Data Sys. Corp., 1997 U.S. Dist. LEXIS 19422 – 17 (E.D. Mich. Sept. 30, 1997) .............................................22 Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002) ..................................................................................................................16 McClung v. Employment Development Dept., 34 Cal. 4th 467 ..........................................................................................................................12 Muniz v. UPS, 731 F.Supp. 2d 961 (N.D. Cal. 2010) .......................................................................................13 Myers v. Trendwest Resorts, Inc., 148 Cal.App. 4th 1403 (2007)...................................................................................................13 Richards v. CH2M Hill, Inc. 26 Cal. 4th 798 (2001) ..............................................................................................................16 Roby v. McKesson Corp., 47 Cal. 4th 686 (2009) ..............................................................................................................13 Case 3:15-cv-03414-MEJ Document 124 Filed 06/22/17 Page 5 of 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 iv Case No. 3:15-cv-03414-MEJ DEFENDANT’S SECOND MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION Rodriguez v. Airborne Express, 265 F.3d 890 (9th Cir. 2001) .....................................................................................................23 Romano v. Rockwell Int’l, Inc., 14 Cal. 4th 479 (1996) ..............................................................................................................23 Soremekun v. Thrifty Payless, Inc., 509 F.3d 978 (9th Cir. 2007) .....................................................................................................11 Turner v. Anheuser-Busch, Inc., 7 Cal. 4th, 1238, 1246 (1994) ...................................................................................................24 White v. Ultramar, Inc., 21 Cal. 4th 563 (1999) ........................................................................................................13, 14 Statutes Fed. R. Civ. P. 56(a) ........................................................................................................................11 Family and Medical Leave Act of 1993 (FMLA) (29 USC section 2601 et seq.) .................. passim Moore-Brown-Roberti California Family Rights Act of 1993 .......................................................12 California Civil Code section 3294(b) ......................................................................................13, 14 California Government Code Section 12940 et seq..................................................................................................................23 Section 12965(b), (d) ................................................................................................................23 Other Authorities 2 CCR § 7297.0 ...............................................................................................................................12 2 CCR § 11087 ................................................................................................................................12 2 CCR § 11098 ................................................................................................................................17 2 CCR sections 7297.0 – 7297.11 ...................................................................................................12 29 CFR 825 .....................................................................................................................................12 29 CFR 825.216(a) ..........................................................................................................................22 29 CFR 825.305(d) ...................................................................................................................12, 18 29 CFR 825.310 ..............................................................................................................................18 29 CFR 825.312(b) .........................................................................................................................18 Case 3:15-cv-03414-MEJ Document 124 Filed 06/22/17 Page 6 of 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 Case No. 3:15-cv-03414-MEJ DEFENDANT’S SECOND MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Defendant TIMEC Company, Inc. moves for summary judgement against Plaintiff Sam Razo’s remaining allegations. Razo, an employee at TIMEC’s Chevron Richmond worksite claims TIMEC retaliated against him for taking CFRA protected leave, interfered with his CFRA leave and constructively discharged him in violation of public policy. But Plaintiff never turned in the certification forms he was required to and, as a result, was never on CFRA protected leave. He claims his doctors’ notes suffice, but the applicable CFRA regulations disagree, specifically permitting Defendant to use the forms it sent to Plaintiff but he never returned. Additionally, Plaintiff seeks to argue his first leave is evidence of retaliation and interference, but he failed to timely exhaust his administrative remedies. Likewise, the claims he seeks to add in his proposed Second Amended Complaint are barred for failure to exhaust. Finally, the Court should grant summary adjudication on the issue of punitive damages as Plaintiff cannot establish any or the prerequisites under California law for punitive damages. II. FACTS A. Sam Razo Sam Razo (“Razo” or “Plaintiff”) worked at TIMEC from April 16, 1990 until he abruptly resigned on August 4, 2014. Defendant’s Separate Fact 1 (“SF”) 1 as submitted in Defendant’s Separate Statement of Facts filed herewith. During his employment and in 2014, Razo worked at TIMEC’s Chevron Richmond worksite. From approximately 2008 to 2014, Razo was a general foreman in the welders group in the on-the-run division at the Chevron Richmond worksite. SF.2. On November 7, 2016 this Court granted summary judgment in favor of TIMEC as to Plaintiff’s fifth, sixth and seventh causes of action for age and disability discrimination and failure to investigate and prevent discrimination. On May 25, 2017, Plaintiff dismissed his claims for retaliation under the FMLA and FMLA leave interference, his original first and third causes of action. Thus, Plaintiff’s remaining claims are for retaliation under the CFRA, CFRA leave interference and wrongful termination in violation of public policy. The gravamen of Plaintiff’s Case 3:15-cv-03414-MEJ Document 124 Filed 06/22/17 Page 7 of 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 Case No. 3:15-cv-03414-MEJ DEFENDANT’S SECOND MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION remaining claims is that, during the spring and summer of 2014, his supervisors, John Gutierrez and Richard Holt, retaliated against him for taking his leave and interfered with his leave, all in violation of CFRA. In stark contrast to his allegations, Razo admits that: (a) he never had any issues with the way his direct supervisor, Mr. Gutierrez treated him and that he was always treated fairly by Mr. Gutierrez (SF3); (b) he never had any issues with how Site Manager Richard Holt treated him, he was always treated fairly by Holt and that Holt never did anything offensive towards him in either word or action (SF4); (c) that, when he informed his supervisors that he wanted to take time off for eye surgery, they responded that his absence was acceptable (SF5); (d) when asked who it was that Razo believed retaliated against him for taking time off, he responded that he did not know (SF6). Most importantly, Razo acknowledges he voluntarily resigned his position and, when offered another position with the company, refused to accept it. SF7. Razo has since accepted jobs at the Chevron facility with other service providers in positions substantially similar to those he refused from TIMEC. SF8. B. TIMEC Company, Inc. TIMEC provides maintenance services for oil refineries throughout the country, including facilities in Chevron Richmond, Chevron Salt Lake City, Valero Benicia, Dow Chemical Pittsburg, Philips 66 Rodeo, Shell Martinez, and Tesoro Anacortes, WA. SF9. 1. John Gutierrez During 2014, John Gutierrez was a project manager for TIMEC at Chevron Richmond. As a project manager, Gutierrez managed the turnaround and on-the-run group at the Chevron Richmond facility. SF10. Among other duties, Gutierrez oversees various craft workers, including welders and pipe fitters, craft foreman, and the general foreman. SF11. Gutierrez does not have the authority to hire or fire individuals. SF12. Gutierrez’ duties in 2014 were limited to the turnaround group and the on-the-run-group. SF13. Additionally, Gutierrez would delegate work to employees, oversee schedules, and oversee manpower. SF14. As a project manager, Gutierrez role was to ensure that the projects assigned to him were completed in a timely and Case 3:15-cv-03414-MEJ Document 124 Filed 06/22/17 Page 8 of 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 Case No. 3:15-cv-03414-MEJ DEFENDANT’S SECOND MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION cost-effective manner and to the client’s specifications. SF15. Gutierrez reported to site manager Richard Holt. SF16. Gutierrez could not change company-wide policy and could not make decisions that affected TIMEC’s nation-wide operations. SF17. In fact, he could not make decisions affecting the personnel in the on-the-run group and turnaround groups without approval from a site manager. SF18. Gutierrez role was limited to overseeing projects he was assigned at Chevron Richmond, one of many facilities in the Northern California region. SF19. 2. Richard Holt During the relevant time period, from April to August 2014, Richard Holt was a site manager for TIMEC at Chevron Richmond. SF20. As site manager, Holt’s responsibilities included controlling site expenditures and assets, ensuring safety procedures are following, addressing personnel issues and payroll issues, interacting with the client regarding additional working, verifying third party billing and verifying estimates. SF21. He oversaw the turnaround, maintenance and capital projects groups for TIMEC at Chevron Richmond. SF22. During his employment, Holt reported to Donald Brown, Vice President of Operations for Northern California for TIMEC. SF23. Holt had no role in setting company-wide policies. SF24. For example, he had no decision making authority related to the creation of human resources policy, operations policy, safety policy or any other company policy. SF25. 3. Kelly Teel Kelly Teel is Benefits and Compensation Manager at Broadspectrum Americas Inc., formerly known as Transfield Services Americas, Inc. SF26. In that role, Ms. Teel assists in the benefits and compensation management for Transfield Services Americas, Inc.’s subsidiaries, including TIMEC (now Broadspectrum Downstream Services, Inc.). SF27. In her role as Benefits and Compensation Manager, Ms. Teel shares the responsibility of managing the company’s leave program with Vice President of Human Resources, Kitt Diloreti. SF28. Ms. Teel has no say in what jobs employees are assigned. SF29. In 2014, Ms. Teel worked as a Benefits Administrator, reporting to Brian Wallace, who, at that time, held the role of Benefits and Compensation Manager (the role Ms. Teel now has). SF30. As a Benefits Administrator, Ms. Teel’s duties included sending and receiving leave- Case 3:15-cv-03414-MEJ Document 124 Filed 06/22/17 Page 9 of 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 Case No. 3:15-cv-03414-MEJ DEFENDANT’S SECOND MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION related documents, assisted in benefits enrollment, payroll deductions, administered funding of HSA and FSA accounts, providing data to benefits administrator and responded to employee inquiries. SF31. Ms. Teel did not have the authority at that time to make final determinations as to whether or not an employee would be granted leave. SF32. Ms. Teel does not and, during 2014, did not set policies related to obtaining and certifying leave or any other company policy. SF33. During 2014, her job was limited to following the guidelines set forth by the company and obtaining approval from her superiors for any action affecting an employee. SF34. 4. Bonnie Morgan Bonnie Morgan is the staffing coordinator for TIMEC’s Northern California region. SF35. Her job duties include assisting in the application process of employees, hiring, coordinating employee training, administering status changes and administering termination documentation. SF36. She also serves as a resource for information for different departments for the employee base. Id. This function includes directing employees to appropriate corporate contacts, such as in the payroll department or human resources. SF37. Ms. Morgan does not handle FMLA requests, beyond referring employees to the benefits department in Houston. SF38. She will accept paperwork from employees, but does not make any kind of determination regarding its content. SF39. Ms. Morgan does not provide paperwork to employees for obtaining protected leave, as those documents are generated from the benefits department. SF40. Ms. Morgan does not supervise employees. SF41. Ms. Morgan’s job with TIMEC is to assist the company in administering various staffing functions and to assist employees by directing them to appropriate contacts depending on the resources they seek. SF42. Ms. Morgan has no decision making authority as it relates to personnel issues. SF43. Likewise, Ms. Morgan cannot set company policy and cannot make decisions to create company policy. SF44. 5. Kelley Cook Kelley Cook is the former Regional Human Resources Manager for TIMEC. SF45. As the Regional HR Manager, Ms. Cook’s basic functions were to handle Human Resources related issues and complaints, supporting operations and supporting the staff in the region. SF46. Ms. Cook handled union grievances and assisted with contract negotiations for the collective Case 3:15-cv-03414-MEJ Document 124 Filed 06/22/17 Page 10 of 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 Case No. 3:15-cv-03414-MEJ DEFENDANT’S SECOND MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION bargaining agreement, dealt with drug and alcohol issues, assisted the safety department and helped with staffing issues. SF47. No employee reported to Ms. Cook. SF48. Her role was limited to the Northern California region. SF49. Ms. Cook did not help implement medical leave policies, although she was responsible for making sure that those policies were adhered to at the HR level. SF50. As it relates to company policies, Ms. Cook testified that she would provide input in the creation of some policy, including to individuals in the safety and human resources departments. SF51. Beyond providing input or making personnel decisions that impacted the company at a local/regional level, however, Ms. Cook did not have the authority to create company-wide policies. SF52. As it relates to Plaintiff, two days after Mr. Razo resigned, Ms. Cook offered Mr. Razo a craft foreman position at Chevron Richmond. SF53; SF128. Mr. Razo rejected the offer. SF129. 6. Donald Brown Donald Brown is the Vice President of Operations, Northern California for TIMEC. SF54. In his role he oversees operations at several difference facilities where TIMEC supports mechanical and maintenance work. SF55. His job covers operations, support, safety, profit and loss accounts, back terms and conditions, plus general oversite. SF56. When asked whether it is “fair to say that in terms of the Northern California region for TIMEC, that the buck stops with” him, Brown responded that it does not and that he reports to Adam Machon. SF57. While Mr. Brown is the highest level executive in Northern California, he shares responsibility for ensuring compliance with policies and procedures of TIMEC with account managers, the human resources regional manager, and the regional safety manager. SF58. As a VP of Operations he follows the guidelines laid out in company policies and works with safety and human resources to ensure compliance with the policies. SF59. While Mr. Brown has input on some company policies, he does not decide what the company-wide policies are and does not create company-wide policy. SF60. Mr. Brown’s job duties are limited to the Northern California region and Utah. SF61. While Mr. Brown has set guidelines for some of the facilities he manages, he does not set company-wide policies. SF62. Mr. Brown did not terminate or approve a termination for Mr. Razo and was not involved Case 3:15-cv-03414-MEJ Document 124 Filed 06/22/17 Page 11 of 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 Case No. 3:15-cv-03414-MEJ DEFENDANT’S SECOND MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION in approving or denying Mr. Razo’s leave or the leave of any employee at Mr. Razo’s level – protected or not. SF63. C. Razo’s Medical Absences 1. Plaintiff’s First Medical Absence In March or early April of 2014, Sam Razo informed Superintendent Gus Aguilar and Richard Holt that he would be taking time off to have eye surgery. SF64. Both Aguilar and Holt responded that he could take time off. SF65 Plaintiff was provided with time off, as, despite having received no medical documentation, the company processed Razo’s medical absence effective April 8, 2014. SF66. On April 8, 2014 Kelly Teel issued FMLA paperwork to Razo. SF67. The FMLA packet was delivered to Razo’s residence on April 14, 2014 and was signed for by Razo. SF68. Plaintiff had 15 days, or until April 29, 2014, to return the required certification forms. Plaintiff never returned this paperwork or contacted the company in regards to this paperwork. SF69. On April 10, 2014, Dr. Johl issued with a work status report placing Razo off work from April 8, 2014 to April 15, 2014 and placing him on modified activity at work and home from April 16, 2014 to April 22, 2014. SF70. However, Razo did not provide this note to the company during his April absence, failing to inform the company that he could return to work effective April 16, 2014 until more than three weeks later. On April 29, 2014, Plaintiff saw Dr. Johl, who retroactively extended his modified activity to April 29, 2014 and released Razo to full capacity on April 30, 2014. SF71. The doctor’s note was not issued until May 9, 2014, the day Plaintiff finally provided it to TIMEC. SF72. Razo returned to work on April 30, 2014 even though he did not have or provide a release to return to work. 1. Plaintiff’s Second Medical Absence On May 30, 2014, Plaintiff took another leave because he “didn’t feel good.” SF73. He remained absent from work. On June 5, 2014, Bonnie Morgan received a doctor’s note from Razo, issued on June 2, retroactively putting him off work from May 30 through July 2. SF74. On June 19, 2014, Kelly Teel received a call from Plaintiff regarding his medical absence, Case 3:15-cv-03414-MEJ Document 124 Filed 06/22/17 Page 12 of 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 Case No. 3:15-cv-03414-MEJ DEFENDANT’S SECOND MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION and as a result issued him a second FMLA packet related to his second absence. SF75. Plaintiff never returned the information. SF76. Accordingly, Ms. Teel, on July 18, 2014 informed Razo by letter that his FMLA was denied because he did not turn in the required paperwork. SF77. On June 30, 2014, Plaintiff attempted to return to work early, but did not have appropriate documentation to return. SF78. The paperwork Plaintiff provided was the original note, issued by Dr. Houston on June 2, 2014, ordering him off work from May 30 through July 2, 2014. SF79. Plaintiff failed to provide further medical certification returning him to work related to this second medical absence. SF80. 2. Plaintiff’s Third Medical Absence On May 9, 2014, Razo was sent a letter by Dr. Johl informing him that he was scheduled for surgery on July 18, 2014 with a pre-operative appointment on July 10, 2014. SF81. On July 10, 2014, Dr. Johl issued out a work status report placing Razo off work from July 18, 2014 through July 25, 2014. SF82. Razo did not provide this note to TIMEC until July 23, and instead just returned to work on July 14 and July 15 and then called in again and was absent on July 16. SF83. Razo did not work on July 17, 2014 and provided no explanation to TIMEC. SF84. Razo did not provide any notice to the company that he would be out for a medical procedure until July 23, leaving the company confused as to whether he was off for medical reasons, was on vacation or had failed to report to work. SF85. On July 25, 2014, Kelly Teel issued FMLA paperwork to Plaintiff related to his third medical absence. SF86. Razo never returned the paperwork. SF87. On July 31, 2014, Plaintiff provided TIMEC with another doctor’s note, issued July 29, 2014, extending his leave to August 3, 2014. SF89. He submitted the July 29 note six days after his original leave expired and with no explanation to the company. D. Razo performed the job functions of an expeditor, not a general foreman. When Gutierrez arrived at Chevron Richmond, he observed Razo was not performing the duties of a General Foreman. SF89. A General Foreman at TIMEC reports to the Site Superintendent and oversees multiple job locations where different craft foreman and craft workers, including pipe fitters and welders, are engaged in performing maintenance work at the Case 3:15-cv-03414-MEJ Document 124 Filed 06/22/17 Page 13 of 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 Case No. 3:15-cv-03414-MEJ DEFENDANT’S SECOND MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION Chevron refinery. SF90. As a General Foreman of the on-the-run group welders, it would have been Razo’s responsibility to oversee all craft employees and Foreman. SF91. The duties of a General Foreman would have been to supervise the work of craft employees, ensure the work was done safely, verify time sheets of these employees, monitor the scope of the work being performed by doing job walks with craft foreman and clients, and ensure the work was completed to the client’s satisfaction. SF92. In addition, a General Foreman would deal with employee issues and grievances, payroll issues, safety audits, coordinate with quality control, and provide the craft foreman with a work package and supervise the their work. SF93. Plaintiff was not observed by Gutierrez to have been performing these essential job functions. SF94. More importantly, although it is part of the responsibility of the foreman to climb structures to direct work and to observe the work to make sure that the craft workers know exactly what they are going to work on, as early as late October through November of 2013, Richard Holt received complaints from Gutierrez that Sam “wouldn’t get out of the truck,” “tried to direct the work from the vehicles,” and “refused to climb the structures or the towers.” SF95. Furthermore, Gutierrez determined that Razo was not taking steps to ensure a safe work environment, was not delegating work, and was not scheduling and tracking completion of the projects. SF96. What Gutierrez did observe was that Razo was performing job duties that are consistent with a material expediter. SF97. A material expediter receives material that has been ordered for the job, picks up the materials from the warehouse, delivers them to job sites, and tallies and tracks materials. SF98. Gutierrez directly observed that the main function Razo was performing was procuring material. SF99. This was corroborated by third parties who, having witnessed Razo performing his job functions, arrived at the same conclusion. For instance, Daniel Bernardy, the on-the-run supervisor for Chevron at the Chevron Richmond facility observed in 2014 that Razo “was the guy who rounded up the material for the company and “he would try to locate” the material and “bring it to the job.” SF100. E. Plaintiff is placed in the craft foreman position Gutierrez’s opinion, formed by his experience at other TIMEC construction projects, was Case 3:15-cv-03414-MEJ Document 124 Filed 06/22/17 Page 14 of 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 Case No. 3:15-cv-03414-MEJ DEFENDANT’S SECOND MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION that it was proper for a craft foreman to be placed in charge of a particular worksite overseeing the welders and the pipe fitters, but that a General Foreman is needed only when there were multiple worksites and crafts to oversee. SF101. In addition, there are cost consideration which were taken into account when staffing and structuring a work group. The billable rates to Chevron and other customers are based upon job title; it is less expensive to have a craft foreman supervising work performed by craft workers. SF102. Gutierrez noted that there was no need for a General Foreman to directly oversee craft workers given the staffing levels and projects under way at the Chevron refinery. SF103. He concluded that maintaining Razo as a General Foreman, given his job duties, was inefficient and not appropriate for the current workload, which did not require supervision of multiple craft foreman. SF104. This inefficiency did not escape the customer, as Chevron on-the-run supervisor Daniel Bernardy asked Gutierrez why TIMEC had a general foreman overseeing five welders. SF105. Gutierrez’ desire to make the on-the-run group more cost-effective, coupled with Gutierrez’ observations that Plaintiff was not performing the job functions of a General Foreman, led Gutierrez to recommend that Razo be demoted to a craft foreman position and that the General Foreman position be eliminated for the on-the-run welders group. SF103. Accordingly, in March 2014, Gutierrez spoke with Holt about moving Razo to craft foreman. SF107. About a month before Razo went on his first leave in April 2014, Gutierrez spoke with Razo about his performance deficiencies. SF108. Razo responded that he would “try and be more of a leader.” 1 According to Holt, Razo informed Holt prior to his first leave in April 2014 that he had decided to take to demotion to craft foreman. SF109. F. Holt and Gutierrez reorganize the on-the-run group The primary purpose of the on-the-run group is to provide maintenance to refinery systems while those systems are in operation. SF110. The on-the-run group consists primarily of craft workers in two roles – pipe fitters and welders. SF111. When Razo was a General Foreman he was in charge of the welding group of the on-the-run group and oversaw approximately only four to six welders. SF112. In early summer 2014, while Razo was on leave, the welders group 1 Razo “doesn’t recall” having a conversation with Gutierrez regarding a change in his position. Case 3:15-cv-03414-MEJ Document 124 Filed 06/22/17 Page 15 of 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 Case No. 3:15-cv-03414-MEJ DEFENDANT’S SECOND MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION was split up. SF113. Instead of having a single welders group it was determined to be more efficient to take the welders and put the welder with each foreman. SF114. As Holt explained, “it was more efficient for him [Gutierrez] to be able to just move welders where he wanted to move them to, to do the work versus having one individual overseeing . . . four to five guys.” SF115. The welders who were formerly part of the on-the-run group were split up into the routine maintenance groups, which consisted of both maintenance and on-the-run. SF116. Above these mixed pipe-fitters and welders, Gutierrez and Holt decided to bring in a piping foreman who could oversee both pipe fitters and the welders, thus eliminating the welder general foreman position. SF117. In July or August of 2014, Collin Koutz transferred from TIMEC’s capital group, where he was the piping general foreman, to the on-the-run group where he became the craft foreman in charge of all craft workers in the on-the-run group – not just welders within in the on-the-run group. SF118. Koutz brought with him experience as a pipefitter, a piping foreman as well as expertise in the welding side. SF119. At the time of his transfer the on-the-run group was in the middle of an emergency job. SF120. Approximately six months later, in December 2014 or January 2015, Koutz was promoted from craft foreman to General Foreman, a position he held until he was promoted yet again to superintendent in July 2015. SF121. G. Plaintiff’s resignation and TIMEC’s offer to reinstate On August 4, 2014, Plaintiff returned to work following his third leave of absence. SF122. He attended the morning safety meeting. SF123. After the meeting, Razo was told by Gutierrez to work with Chris Sprankle. SF124. Razo worked his assigned task, moving lighting units. At approximately 10:00 a.m. Razo approached Gutierrez and asked him “is this going to be this way, you know?” SF125. Razo stated further that “if this is going to continue, I would rather be laid off.” SF126. According to Razo, Gutierrez stated he would go and check. Gutierrez returned to Razo around lunchtime and state “we’re going to keep your rate at 38, and you’ll be laid off at the end of the day.” SF127. Razo worked through the end of his shift and did not work for TIMEC again. On August 6, 2014, Plaintiff met with Jeremy Ross and Kelley Cook. SF128. During the Case 3:15-cv-03414-MEJ Document 124 Filed 06/22/17 Page 16 of 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 Case No. 3:15-cv-03414-MEJ DEFENDANT’S SECOND MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION meeting, Razo was offered to return to work at a craft foreman position at a rate of pay of $35.00. Razo rejected the offer and voluntarily resigned. SF129. To date, Razo has not filed a grievance with his union regarding his employment issues. SF130. III. LEGAL ANALYSIS A. Applicable Standards 2. Standard on Summary Judgment Summary judgment is proper where the pleadings, discovery and affidavits demonstrate that there is “no genuine dispute as to any material fact and [that] the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The party moving for summary judgment bears the initial burden of identifying those portions of the pleadings, discovery and affidavits that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Material facts are those that may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 22, 248 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id. Where the moving party will have the burden of proof on an issue at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). On an issue where the nonmoving party will bear the burden of proof at trial, the moving party can prevail merely by pointing out to the district court that there is an absence of evidence to support the nonmoving party’s case. Celotex, 477 U.S. at 324-25. If the moving party meets its initial burden, the opposing party must then set forth specific facts showing that there is some genuine issue for trial in order to defeat the motion. Fed. R. Civ. P. 56(e); Anderson, 477 U.S. at 250. 3. The applicable CFRA and FMLA regulations In the Court’s ruling on Defendant’s first motion for summary judgment, the Court cited to the current FMLA regulations to find that TIMEC may have been under an obligation to state in writing within seven days any deficiency with the certification. Now that Plaintiff has dropped Case 3:15-cv-03414-MEJ Document 124 Filed 06/22/17 Page 17 of 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 Case No. 3:15-cv-03414-MEJ DEFENDANT’S SECOND MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION his FMLA claims, if the Court were to apply these standards to Plaintiff’s CFRA claims it would be a misapplication of current regulations that were not in effect at the time the conduct occurred. A careful review of the regulations applicable during the April to August 2014 period at issue in this case reveals that Plaintiff’s interference claim fails as a matter of law. The Moore-Brown-Roberti California Family Rights Act of 1993 (the “CFRA”) was passed, as its name suggests, in 1993. Regulations promulgated under the CFRA were originally cited as 2 CCR sections 7297.0 – 7297.11 (now 2 CCR 11087, et seq.). The regulations in effect in 2014 required that the definitions in the federal regulations issued January 6, 1995 (29 CFR Part 825), interpreting the Family and Medical Leave Act of 1993 (FMLA) (29 USC section 2601 et seq.) shall also apply to [the CFRA regulations], to the extent that they are not inconsistent [with the CFRA regulations]. See 2 CCR 7297.0 and 7297.10. The CFRA regulations were unchanged until July 1, 2015 when, among other changes, the regulations incorporated the March 8, 2013 amendments to the FMLA regulations. Before July 1, 2015, the incorporated FMLA regulations were those issued on January 6, 1995 and the January 6, 1995 regulations are the regulations that apply to this case. The applicability of the January 6, 1995 regulations is central to the Court’s analysis.2 For example, as discussed further below, to the extent the regulations addressing the incompleteness of a certification are not in conflict with the CFRA regulations, the January 6, 1995 requirements are quite different from the March 8, 2013 requirements that the Court applied and were not in effect under CFRA until July 1, 2015. The 1995 regulations only require the employer to “advise an employee whenever the employer finds a certification incomplete, and provide the employee a reasonable opportunity to cure any such deficiency.” See 29 CFR 2 There is no argument that the CFRA regulations effective July 1, 2015 have retroactive effect to conduct occurring in April to August 2014. See e.g. McClung v. Employment Development Dept., 34 Cal. 4th 467. (“Generally statutes operate prospectively only. . . Elementary consideration of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly. . . a statute that interferes with antecedent rights will not operate retroactively unless such retroactivity be the unequivocal and inflexible import of the terms, and manifest intention of the legislature.”) (internal citations and quotations omitted). A statute can only be applied retroactively if it contains express language of retroactivity or if other sources provide a clear and unavoidable implication that the Legislature intended retroactive application. Id. Case 3:15-cv-03414-MEJ Document 124 Filed 06/22/17 Page 18 of 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13 Case No. 3:15-cv-03414-MEJ DEFENDANT’S SECOND MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 825.305(d) (January 6, 1995 version). Another important distinction is that the applicable CFRA regulations, unlike the current regulations, specifically permit an employer to use for certification purposes the United States Department of Labor Form WH-380 – the same form TIMEC sent Plaintiff three times and he never returned. Before Plaintiff dismissed his FMLA claims, the regulations applicable to his claims included both the January 6, 1995 FMLA regulations and original, pre-July 1, 2015 CFRA regulations (for his CFRA claim) and the March 8, 2013 FMLA regulations (for his FMLA claim). With the FMLA claims dismissed, the Court should use the January 6, 1995 FMLA regulations and original, pre-July 1, 2015 CFRA regulations in interpreting Plaintiff’s claims. See Fair Employment & Housing Council Amendments to the California Family Rights Act Regulations, courtesy copy attached at Johnston Decl., ¶15, Exh. L. B. Plaintiff’s Claim for Punitive Damages Fails as a Matter of Law A corporate employer may not be held liable for punitive damages arising from the acts of an employee unless “an officer, director, or managing agent of the corporation . . . had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. Cal Civ. Code section 3294(b). “Managing agents” are “those corporate employees who exercise substantial independent authority and judgment in their corporate decision-making so that their decisions ultimately determine corporate policy.” White v. Ultramar, Inc., 21 Cal. 4th 563, 566-67 (1999). These are corporate policies that “affect a substantial portion of the company and that are the type likely to come to the attention of corporate leadership.” Roby v. McKesson Corp., 47 Cal. 4th 686, 714 (2009). “Corporate policies” are generally viewed as the “general principles which guide a corporation, or rules intended to be followed consistently over time in corporate operations.” Cruz v. Homebase, 83 Cal.App. 4th 160, 167 (2000). “[T]he critical inquiry is the degree of discretion the employees possess in making decisions that will ultimately determine corporate policy.” Muniz v. UPS, 731 F.Supp. 2d 961, 977 (N.D. Cal. 2010); Myers v. Trendwest Resorts, Inc., 148 Case 3:15-cv-03414-MEJ Document 124 Filed 06/22/17 Page 19 of 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14 Case No. 3:15-cv-03414-MEJ DEFENDANT’S SECOND MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION Cal.App. 4th 1403, 1437 (2007). A plaintiff must demonstrate that an alleged managing agent exercises “substantial discretionary authority over significant aspects of a corporation’s business.” White, 21 Cal. 4th at 577. Whether employees exercise sufficient authority is determined on a case-by-case basis. Id. at 567. Evidence of ratification of an agent’s actions, and any other finding under Civil Code section 3294(b), must be made by clear and convincing evidence. Barton v. Alexander Hamilton Life Ins. Co. of America (2003) 110 Cal.App. 4th 1640. Throughout this case, Plaintiff has pointed to two individuals as the bad actors who wronged him: John Gutierrez and Richard Holt. Even though Plaintiff has admitted he never had any issues with the manner in which Mr. Holt or Mr. Gutierrez treated him, that he was always treated fairly by Mr. Gutierrez and Mr. Holt, and that when he informed his supervisors that he wanted time off for eye surgery they responded that this was acceptable, Mr. Razo continues to argue they interfered with his time off, retaliated against him for taking time off and constructively discharged him. Even if that was so, neither employee is a managing agent. Rather, Mr. Gutierrez and Mr. Holt were, during the relevant time period, low-level managers whose authority was limited to either a facility or a small group of employees within that facility. They had no ability to make decisions that ultimately determined corporate policy. Neither employee could make or change corporate policy. Next, Plaintiff may argue that Ms. Teel and Ms. Morgan are managing agents. This is not so. Ms. Morgan is a Staffing Coordinator, whose primary role is to assist the company with maintaining staffing levels at local job sites. She has not authority whatsoever to make decisions that affect company policy. Likewise, Ms. Teel was, during the relevant time period, a Benefits Administrator. Her duties were to send and receive leave-related documents, assist in benefits enrollment and payroll deductions, administer funding of HAS and FSA accounts, provide data to benefits administrators and respond to employee inquiries. Ms. Teel had no role in setting corporate policies and had no independent discretion to carry out her job functions. Finally, Plaintiff may argue that Kelley Cook or Donald Brown were managing agents. Such a claim is highly attenuated as both Ms. Cook and Mr. Brown had little to do with Case 3:15-cv-03414-MEJ Document 124 Filed 06/22/17 Page 20 of 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15 Case No. 3:15-cv-03414-MEJ DEFENDANT’S SECOND MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION Mr. Razo’s employment. For instance, Ms. Cook’s involvement was limited to offering Mr. Razo a job two days after he had quit. Mr. Brown was not involved in denying or approving leave for Mr. Razo or any other employee. According to Ms. Cook, Donald Brown was aware the she intended to offer Mr. Razo another job, which Razo declined. Both Ms. Cook and Mr. Brown are not managing agents. During the relevant time period, Ms. Cook was a TIMEC Regional Human Resources Manager. Her functions were to handle human resources issues and complaints, support operations and support the staff in the region. No employee reported to Ms. Cook and her role was limited to Northern California. According to her testimony, Ms. Cook provided input related to policies but identified Kitt Diloretti as an individual who could potentially make decisions related to company policies. SF131. She had no authority to set company policy or make decisions that created company policy. Mr. Brown is the Vice President of Operations for the Northern California Region. Mr. Brown does not set or create company-wide policies, rather he is responsible for ensuring compliance with TIMEC’s policies and procedures along with account managers, the human resources regional manager and the regional safety manager. Mr. Brown does not have final authority within the Northern California Region as that rests with Adam Machon, whom Mr. Brown reports to. None of these individuals have the authority necessary to give rise to punitive damages against the company. Nor is there any evidence whatsoever that TIMEC acted with malice, oppression or fraud towards Mr. Razo. Accordingly, the Court should grant summary judgment on the issue of punitive damages. C. Plaintiff’s CFRA Claim as it relates to his first leave is barred by the statute of limitations 4. Plaintiff admits he was demoted as soon as he went on leave but waited one year and a day to file his charge. Plaintiff filed his DFEH charge on April 9, 2015. See Clough Decl. ¶ 2, Exh. A. In the charge, he stated that “[m]y employer demoted me and decreased my salary as soon as I went on medical leave.” (emphasis added). Id. Plaintiff was told his role was being changed well before Case 3:15-cv-03414-MEJ Document 124 Filed 06/22/17 Page 21 of 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16 Case No. 3:15-cv-03414-MEJ DEFENDANT’S SECOND MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION he went on leave; although he disputes that. What is clear is that Plaintiff was aware that his cause of action accrued as of April 8, 2014, when he took time off for his first eye surgery. Accordingly, he had until April 8, 2015 to file a charge with the DFEH. He waited one day too long and his claims as it relates to his first leave is barred. 1. The continuing violation doctrine does not apply to separate leaves During arguments before this Court, Plaintiff, through his counsel, has argued that the continuing violation doctrine permits Plaintiff to use facts and allegations outside the statute of limitations, namely his first leave, to support his claim for CFRA interference and retaliation. The continuing violation doctrine cannot apply to Plaintiff’s CFRA claims. The California Supreme Court has held “that an employer’s persistent failure to reasonably accommodate a disability, or to eliminate a hostile work environment is a continuing violation if the employer’s unlawful actions are (1) sufficiently similar in kind – recognizing . . . that similar kinds of unlawful employer conduct, such as acts of harassment . . . may take a number of different forms; (2) have occurred with reasonable frequency; (3) and not have acquired a degree of permanence.” See Richards v. CH2M Hill, Inc. 26 Cal. 4th 798 (2001). No case has extended the continuing violation doctrine to a CFRA claim, rather the doctrine is generally limited to those claims alleging a persistent failure to reasonably accommodate a disability or to eliminate a hostile work environment. See e.g. Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002) (holding that “discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges. Each discrete discriminatory act starts a new clock for filing charges alleging the act . . . thus, the continuing harm doctrine is inapplicable where discrete discriminatory acts such as termination, failure to promote, denial of transfer, or refusal to hire serve as the basis of the claim. Hostile work environment claims are “different in kind from discrete acts. Their very nature involves repeated conduct.”) Perhaps that is why no court has applied the continuing violation theory to FMLA claims. See Beekman v. Nestle Purina Petcare Co., 635 F. Supp. 2d 893, 906 (recognizing that courts addressing the issue have not applied the continuing violation doctrine to the FMLA). Case 3:15-cv-03414-MEJ Document 124 Filed 06/22/17 Page 22 of 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17 Case No. 3:15-cv-03414-MEJ DEFENDANT’S SECOND MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION Accordingly, Plaintiff cannot argue the continuing violation doctrine saves his claims. D. Plaintiff’s CFRA Claims Fail because Plaintiff was not on protected leave. 5. The CFRA standard on certification Under CFRA, an employer may request a protected-leave-seeking employee to provide an appropriate certification of the need for leave. The certification under CFRA must contain: (1) the date on which the serious health condition commenced; (2) the duration of the condition; (3) a statement that, due to the serious health condition, the employee is unable to work at all or is unable to perform any one or more of the essential functions of his or her position. Plaintiff has previously argued that the certification need not be in a specific form; for instance, it could be a doctor’s note. That may or may not be true today, but it was not true under the CFRA regulations that applied to Mr. Razo. Those regulations clearly permit the employer to use the exact form that Defendant provided to Plaintiff – the Department of Labor’s Form WH-380. See 2 CCR 11098 (pre-July 1, 2015 version). The CFRA proposes an alternative Certification of Health Care Provider form which shows the detail expected by the regulations, including that the health care provider would analyze whether the employee could perform work of any kind or the essential functions of his job following a review of those essential job functions, the onset of the medical condition, the duration, as well as a specific definition of a serious health condition so that the provider can evaluate whether the employee suffers from such a condition. Plaintiff never returned form WH-380. For this reason alone, Plaintiff’s claims fail as he was not certified for leave. 6. To the extent TIMEC was under an obligation to follow-up with Plaintiff, it did so. a. TIMEC is under no obligation to follow-up with an employee who does not provide required certification TIMEC provided Plaintiff with the form of certification it was permitted to under the regulations. See 2 CCR 11098 (pre-July 1, 2015 version). The form asked for the specific information required under CFRA, including: (1) the date on which the serious health condition commenced; (2) the duration of the condition; (3) a statement that, due to the serious health condition, the employee is unable to work at all or is unable to perform any one or more of the Case 3:15-cv-03414-MEJ Document 124 Filed 06/22/17 Page 23 of 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18 Case No. 3:15-cv-03414-MEJ DEFENDANT’S SECOND MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION essential functions of his or her position. Plaintiff never returned these forms. Under the governing regulations, TIMEC was not required to follow up with an employee who doesn’t turn in the certification form provided by his employer. If the employee never produces the certification the leave is not protected leave. See e.g. 29 CFR 825.312(b). b. There is no follow-up obligation under the CFRA The applicable CFRA regulations, unlike the FMLA regulations, provide only one condition under which an employer can insist on additional information – when the employer has a reason to validity of the certification provided by the employee for his own serious health condition. Unlike the FMLA regulations, there is no option for the employer to insist on additional information because the certification is incomplete. Because these provisions are in conflict – the CFRA enumerates the conditions under which an employee may be contacted regarding certification and the certification may be challenged – the CFRA regulations control. Accordingly, to the extent the doctor’s notes are certifications (which they most clearly are not), the CFRA does not require Defendant to follow- up with Plaintiff. c. Even if there was an obligation to follow-up, TIMEC did so. In the Court’s order denying summary judgment as to Plaintiff’s CFRA and FMLA claims, the Court properly analyzed the FMLA’s standards relating to certification as to Plaintiff’s FMLA claims. But these standards do not apply to Plaintiff’s CFRA claim. Looking back to the 1993 FMLA regulations, an employer need only advise an employee whenever the employer finds a certification incomplete, and provide the employee a reasonable opportunity to cure any such deficiency. See 29 CFR 825.305(d) (January 6, 1995 version). Nonetheless, TIMEC provided numerous requests for certification, including after Plaintiff provided incomplete doctor’s notes. These certifications provided specific instructions to Plaintiff on what was needed. In response, Plaintiff did not return the required documents, only providing subsequent doctor’s notes so he could return to work (an altogether different requirement under the regulations (see 29 CFR 825.310). Case 3:15-cv-03414-MEJ Document 124 Filed 06/22/17 Page 24 of 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19 Case No. 3:15-cv-03414-MEJ DEFENDANT’S SECOND MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION d. The doctor’s notes are not certifications, if they are, they are woefully inadequate. As discussed supra, the applicable regulations specifically permit Defendant to use and require Plaintiff to return the Department of Labor’s Form WH-380. TIMEC sent these forms three times, once for each leave. Plaintiff can’t remember filling out the forms and Ms. Teel did not receive any paperwork back from him. Now, Plaintiff argues that his doctor’s notes should count as certifications. Clearly the applicable regulations disagree. Nonetheless, the doctor’s notes don’t provide any of the information contemplated by the regulations and cannot be used for certification of leave. Contrary to Plaintiff’s arguments, these doctor’s notes are not CFRA-compliant certifications. Rather, these are documents that the company demanded when Mr. Razo continued to show up to work without a valid return to work certification from a medical provider. Plaintiff’s First Absence Plaintiff began his first leave on April 8, 2014. On April 8, 2014 Kelly Teel issued FMLA paperwork to Mr. Razo. The FMLA packet was delivered on April 14, 2014 and was signed for by Razo. Accordingly, Plaintiff had until April 29, 2014 to return the certification. He never did. Now he attempts to rely on either his April 9th doctor’s note (issued on April 10th) or his April 29th doctor’s note (issued on May 9th). Yet neither was provided to the company until days after Plaintiff’s April 30, 2014 return to work3. For this reason alone, Mr. Razo failed to timely provide certification and was not eligible for protected leave for his first absence in April 2014. Even if these doctor’s notes were timely, they were insufficient. TIMEC explained to Plaintiff what was needed for his certification on April 14, 2014 when he signed for the FMLA paperwork. Neither satisfies the requirements of a certification. The first, issued on April 9, 2014 does not contain: (1) the date on which the serious health condition commenced – the area on the doctor’s note that requests that information is blank; (2) the probable duration of the condition – it only provides the time that Plaintiff is placed off work and on modified duty; 3 In fact, a close inspection reveals that, Mr. Razo never informed the company that he could return to work effective April 16, 2014 until more than three weeks later. Case 3:15-cv-03414-MEJ Document 124 Filed 06/22/17 Page 25 of 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20 Case No. 3:15-cv-03414-MEJ DEFENDANT’S SECOND MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION and (3) a statement that, due to the serious health condition, the employee is unable to perform the function of his or her position. The second note, issued on May 9 and resulting from an encounter on April 29 (two weeks after Plaintiff was supposed to return to work), does not contain: (1) the date on which the serious health condition commenced – the area on the doctor’s note that requests that information is blank; (2) the probable duration of the condition – it only provides the time that Plaintiff is placed on modified duty; and (3) a statement that, due to the serious health condition, the employee is unable to perform the function of his or her position – it only states that Plaintiff is now able to return to work at full capacity as of April 30, 2014. Plaintiff’s Second Absence On May 30, 2014, Plaintiff did not report to work because “he didn’t feel good.” He remained absent from work, and on June 5, 2014, Plaintiff provided the company with a doctor’s note issued June 2 that retroactively placed him off work from May 30, 2014 through July 2, 2014. This note failed to provide notice of: (1) the probable duration of the condition – it only provides the time that Plaintiff is placed off work; and (2) a statement that, due to the serious health condition, the employee is unable to perform the function of his or her position. On June 19, 2014, Kelly Teel sent Plaintiff an FMLA packet related to his second absence. Plaintiff never returned this information and provided no further information from his doctor that would satisfy his certification obligations. Plaintiff failed to provide the information he was required to. When he was reminded of his obligations, he responded by providing nothing. Accordingly, he was not eligible for protected leave for his second absence. Plaintiff’s Third Absence On July 10, 2014, Plaintiff saw Dr. Johl regarding his second eye procedure. Dr. Johl filled out a work status report placing Plaintiff off work from July 18 through July 25, 2014. He unexpectedly worked on July 14 and 15 before calling in his absence on July 16, 2014. Plaintiff again failed to appear on July 17, 2014 and provided no explanation to his employer until he submitted Dr. Johl’s July 10 note on July 23, 2014, 13 days after the note was issued and 5 days Case 3:15-cv-03414-MEJ Document 124 Filed 06/22/17 Page 26 of 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21 Case No. 3:15-cv-03414-MEJ DEFENDANT’S SECOND MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION after Dr. Johl stated he would be out for a medical procedure. Like the other doctor’s notes provided by Plaintiff, the tardy note that he gave the company on July 23 does not contain: (1) the date on which the serious health condition commenced – the area on the doctor’s note that requests that information is blank; (2) the probable duration of the condition; and (3) a statement that, due to the serious health condition, the employee is unable to perform the function of his or her position. On July 25, 2014, Kelly Teel sent FMLA leave paperwork to Plaintiff related to his third leave. This paperwork provided Plaintiff with the information the company sought to certify his leave. Plaintiff never responded to this request, and failed to return to work after the leave period established by Dr. Johl expired. On July 31, 2014, Plaintiff provided another doctor’s note issued July 29, 2014, extending his leave to August 3, 2014. He submitted the doctor’s July 29th note 6 days after his leave had expired, and with no explanation whatsoever to the company. This note also failed to provide: (1) the date on which the serious health condition commenced – the area on the doctor’s note that requests that information is blank; (2) the probable duration of the condition; and (3) a statement that, due to the serious health condition, the employee is unable to perform the function of his or her position. On August 4, 2014, Plaintiff returned to work and resigned. Plaintiff failed to qualify for CFRA protected leave for three reasons. First, he failed to provide proper notice of his leave, waiting nearly two weeks to provide notice. Second, his doctor’s notes, both before and after the certification communication from the company, failed to include the information required by CFRA. Finally, he failed to respond to the request for certification before (or after) he resigned. Plaintiff’s attempted reliance on incomplete documentation, provided for his return to work, shows that Plaintiff had failed to provide the certification necessary to obtain protected leave. Accordingly, summary judgment is appropriate on Plaintiff’s CFRA claims as Plaintiff was not on protected leave between April 8, 2014 and August 4, 2014. Case 3:15-cv-03414-MEJ Document 124 Filed 06/22/17 Page 27 of 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 22 Case No. 3:15-cv-03414-MEJ DEFENDANT’S SECOND MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION E. Even had Plaintiff not been on leave, his position would have been reduced 1. Assuming arguendo that Plaintiff did qualify for protected leave – which he did not – Plaintiff cannot overcome Defendants’ proof that Plaintiff’s would not have held his position as general foreman or craft foreman of the on-the-run welders’ group even if he had not taken leave. 29 C.F.R. § 825.216(a) provides that “an employee has no greater right to reinstatement or to the other benefits and conditions of employment than if the employee had been continuously employed during the FMLA leave period.” See also Hopkins v. Electronic Data Sys. Corp., 1997 U.S. Dist. LEXIS 19422, *16 – 17 (E.D. Mich. Sept. 30, 1997) (“The FMLA, however, does not automatically prohibit an employer from eliminating the position of an employee who has taken a leave of absence. Rather, the regulations issued under the FMLA explicitly contemplate that the employment relationship lawfully may be terminated and reinstatement denied to an employee on a leave of absence . . . .”) Here, Defendant has established that, John Gutierrez had, since his arrival at the Chevron Richmond worksite, been evaluating Razo’s performance, as well as whether the on-the-run welders’ group needed a general foreman. Before Plaintiff’s first leave in April 2014, John Gutierrez determined that Razo was engaged in the duties of a material expeditor, not a general foreman, but was willing to give Razo a chance to prove himself at the craft foreman position. When Razo returned from his first leave, Gutierrez continued to evaluate Razo and continued to observe him performing the duties of a material expeditor, not a craft foreman. Accordingly, Razo made the decision to place Razo in the role of material expeditor – although Razo was paid for all time at the pay rate of a general foreman. Furthermore, Gutierrez and Holt made the decision that it was inefficient to have a welders’ group, including a dedicated general foreman in charge of the welders. Instead, while Razo was on leave, Gutierrez and Holt decided to split the welders into different routine maintenance groups, mixing them with pipe-fitters. As Gutierrez and Holt restructured the on- the-run group they determined it would be more efficient to have a piping foreman who could oversee both the pipe fitters and welders. Even so, that pipe foreman would be a craft foreman, not a general foreman. Case 3:15-cv-03414-MEJ Document 124 Filed 06/22/17 Page 28 of 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 23 Case No. 3:15-cv-03414-MEJ DEFENDANT’S SECOND MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION Thus, even if Razo had not taken leave, by August 4th the position he held was eliminated and the group he was in charge of did not exist. Furthermore, by August 4t, Razho would have been demoted to a materials expeditor, as Gutierrez had made the decision following observations of Razo doing the work not of a foreman, but a material expeditor, prior to his leave. F. Should the Court Allow Plaintiff’s Proposed Second Amended Complaint, Those Newly Added Theories of Liability are barred for failure to exhaust Because CFRA is a part of FEHA, a plaintiff must also exhaust administrative remedies before bringing a civil action for violation of CFRA. See Bere v. MGA Healthcare Staffing, Inc., 2016 U.S. Dist. LEXIS 71453, at *4 (N.D. Cal. June 1, 2016). Exhaustion under the FEHA requires filing a complaint with the DFEH within one year of the date of the alleged unlawful practice and obtaining notice of the right to sue. See Cal. Gov’t Code § 12940 et seq; see Romano v. Rockwell Int'l, Inc., 14 Cal. 4th 479, 492 (1996). Moreover, for a civil suit to be timely, the plaintiff must bring a claim within one year of obtaining a right-to-sue letter from DFEH. See Cal. Gov’t Code § 12965(b), (d) (noting "the one-year statute of limitations, commencing from the date of the right-to-sue notice by the [DFEH]"). The Court must generally dismiss unexhausted FEHA causes of action. Rodriguez v. Airborne Express, 265 F.3d 890, 900 (9th Cir. 2001). Moreover, "[a]llegations in the civil complaint that fall outside of the scope of the administrative charge are barred for failure to exhaust." See id. at 897. Here, Plaintiff’s DFEH charges limited his cause of action as it related to leave as a claim that he was demoted immediately upon taking medical leave – not that his leave was misclassified, that he wasn’t provided notice or that his leave was interfered with in any way. See Clough Decl, Exh. A. On July 14, 2015, Plaintiff filed an amended DFEH charge. Id. The amended charge added theories of liability on failure to engage in the interactive process and failure to accommodate a disability (both of which were dropped early in this case), as well as a constructive discharge theory of liability. There were no additional facts or allegations regarding Plaintiff’s leave added to the July 14, 2015 amendment. Both charges were signed by Plaintiff’s counsel of record in this matter, Navruz Avloni. Id. The charge clearly states what has always been at issue in this case – did Defendant Case 3:15-cv-03414-MEJ Document 124 Filed 06/22/17 Page 29 of 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 24 Case No. 3:15-cv-03414-MEJ DEFENDANT’S SECOND MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION retaliate against Plaintiff for taking FMLA/CFRA protected leave? Absent are any facts or any allegations that Defendant interfered with Plaintiff’s leave; failed to notify Plaintiff of his rights related to his medical leave; failed to grant him protected leave; or that Defendant mischaracterized or misclassified his leave as not protected leave. Accordingly, Plaintiff has failed to exhaust his administrative remedies. G. Constructive Discharge Plaintiff predicates his constructive discharge claim on a violation of public policy that did not occur. As discussed above, Plaintiff cannot raise a claim that he was retaliated against or his rights were interfered with as it relates to his first leave – those claims are time barred and cannot form the basis of his wrongful termination claim. Nor did Plaintiff qualify for CFRA leave because he failed to provide the required certification documents. Accordingly, there is no violation of public policy to form the basis of Plaintiff’s claim. Furthermore, Plaintiff must prove that “that the employer either intentionally created or knowingly permitted working conditions that were so intolerable or aggravated at the time of the employee’s resignation that a reasonable employer would realize that a reasonable person in the employee’s position would be compelled to resign.” Turner v. Anheuser-Busch, Inc., 7 Cal. 4th, 1238, 1246 (1994). In order to amount to a constructive discharge, adverse conditions “must be unusually aggravated or amount to a continuous pattern before the situation will be deemed intolerable . . . a demotion, even when accompanied by reduction in pay, does not by itself trigger a constructive discharge.” Turner, at 1247. The standard by which a constructive discharge is determined is an objective one – the question is ‘whether a reasonable person faced with the allegedly intolerable employer actions or conditions of employment would have no reasonable alternative except to quit.” Id. at 1248. Stated differently, a “constructive discharge occurs when the working conditions deteriorate, as a result of discrimination, to the point that they become ‘sufficiently extraordinary and egregious to overcome the normal motivation of a competent, diligent, and reasonable employee to remain on the job to earn a livelihood and to serve his or her employer.’” Brooks v. City of San Mateo, 229 F.3d. 917, 930 (9th Cir. 2000). While “[e]very job entails frustrations, struggles and stress . . . in order to properly manage its business an employer Case 3:15-cv-03414-MEJ Document 124 Filed 06/22/17 Page 30 of 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 25 Case No. 3:15-cv-03414-MEJ DEFENDANT’S SECOND MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION must be able to ‘review, criticize, demote, transfer and discipline employees.’” Federico v. Overland Contracting, Inc., 2013 U.S. Dist. LEXIS 144146 (N.D. Cal. Oct. 4, 2013). Here, Plaintiff, upon his return to work following a medical leave was asked to work with Chris Sprankle moving lighting. While Gutierrez had the intent to have Razo try out the expeditor position, while being paid at the same rate he had been paid over the previous year, $38 per hour, Razo found the work “abusive.” A few hours into the work, Plaintiff asked his supervisor to lay him off if “this was the way it’s going to be.” After checking with Richard Holt, Gutierrez confirmed that Razo could be laid off. Two days after he walked off the job, Razo was offered an available craft foreman position at the rate of $35.00 per hour – a position above an expeditor, but below his non-existent general foreman position. Razo refused the position. Plaintiff’s demotion, in of itself cannot create a claim for wrongful constructive discharge and, having admitted that he was treated fairly by both Holt and Gutierrez, Plaintiff cannot point to any additional grounds to create constructive discharge. IV. Conclusion This Court should grant summary judgment to Defendant on each and every one of Plaintiff’s remaining claims. First, there is no triable issue of fact on the issue of punitive damages, Plaintiff cannot show a managing agent was involved in the decisions related to Mr. Razo and cannot show malice, oppression or fraud. Second, Plaintiff did not provide the certification he was required to – his doctor’s notes are insufficient – and, for this reason alone, his CFRA claims fail as he was not on protected leave. Even if he did qualify, his position would not have been available had he not gone on leave. Third, he is barred from maintaining his newly asserted interference theories and his claims relating to his first leave as he failed to exhaust. Finally, as Plaintiff’s constructive discharge claim flows from his CFRA theory, that claim fails alongside his CFRA claims. Accordingly, summary judgment is appropriate. Dated: June 21, 2017 JACKSON LEWIS P.C. By: /s/ Douglas G.A. Johnston Patrick C. Mullin Douglas G.A. Johnston Attorneys for Defendant TIMEC COMPANY, INC Case 3:15-cv-03414-MEJ Document 124 Filed 06/22/17 Page 31 of 31
