Teresa Aguirre v. State of California et al

MOTION for Partial Summary Judgment

N.D. Cal.June 2, 2017

1 Pls Ntc Mtn and Mtn for Partial SJ Case No. 4:16-cv-05564 HSG 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 DEBORAH KOCHAN (S.B. #152089) dkochan@kochanstephenson.net MATHEW STEPHENSON (S.B. #154330) mstephenson@kochanstephenson.net KOCHAN & STEPHENSON 1680 Shattuck Avenue Berkeley, CA 94709 Telephone: (510) 649-1130 Facsimile: (510) 649-1131 Attorneys for Plaintiff TERESA AGUIRRE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION TERESA AGUIRRE, Plaintiff, vs. STATE OF CALIFORNIA; DEBRA MILLS; CARIANNE HUSS; and DOES 1 through 5, Defendants. Case No. 4:16-cv-05564-HSG PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR PARTIAL SUMMARY JUDGMENT OF DEFENDANTS’ LIABILITY FOR VIOLATION OF FMLA AND CFRA; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Date: July 13, 2017 Time: 2:00 pm Ctrm: 2– 4th Floor Complaint Filed: October 4, 2016 Trial Date: December 11, 2017 Case 4:16-cv-05564-HSG Document 59 Filed 06/02/17 Page 1 of 10 2 Pls Ntc Mtn and Mtn for Partial SJ Case No. 4:16-cv-05564 HSG 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 TABLE OF CONTENTS I. INTRODUCTION ................................................................................................... 5 II. STATEMENT OF FACTS ..................................................................................... 6 A. Ms. Aguirre’s Employment With the EDD ...................................................... 6 B. Ms. Aguirre’s Leave .......................................................................................... 7 C. Defendants’ Interference With Ms. Aguirre’s Leave ....................................... 7 III. LEGAL ANALYSIS ............................................................................................. 8 A. Defendants Interfered With Ms. Aguirre’s FMLA Leave ............................... 8 1. Defendants’ conduct constitutes interference ................................................. 8 2. Defendants Mills and Huss are individually liable for interference .............. 9 B. Defendant Interfered With Ms. Aguirre’s CFRA Leave .................................. 9 IV. CONCLUSION ................................................................................................. 10 Case 4:16-cv-05564-HSG Document 59 Filed 06/02/17 Page 2 of 10 3 Pls Ntc Mtn and Mtn for Partial SJ Case No. 4:16-cv-05564 HSG 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 TABLE OF AUTHORITIES Cases Bachelder v. America West Airlines, Inc. (9th Cir. 2001) 259 F3d 1112 ..................... 8 Bryant v. Delbar Products, Inc. (MD TN 1998) 18 F.Supp.2d 799 .............................. 9 Escriba v. Foster Poultry Farms, Inc. (9th Cir. 2014) 743 F.3d 1236 ........................... 8 Freemon v. Foley (ND IL 1995) 911 F.Supp. 326 ......................................................... 9 Mercer v. Borden (CD CA 1998) 11 F.Supp.2d 1190 .................................................... 9 Xin Liu v. Amway Corporation (9th Cir. 2003) 347 F.3d 1125 ..................................... 9 Statutes 29 U.S.C.A. § 2601 et seq............................................................................................... 8 29 USC § 2611(4)(A)(ii)(I) .............................................................................................. 9 29 USC § 2615(a)(1) ....................................................................................................... 8 Gov.C. § 12945.2(a), (t) ................................................................................................ 10 Regulations 2 Cal.C.Regs. § 11090(c)(2) .......................................................................................... 10 2 Cal.C.Regs. § 11090(e). ............................................................................................. 10 29 CFR § 825.112(a)(3) .................................................................................................. 8 29 CFR § 825.202(a) ....................................................................................................... 8 Case 4:16-cv-05564-HSG Document 59 Filed 06/02/17 Page 3 of 10 4 Pls Ntc Mtn and Mtn for Partial SJ Case No. 4:16-cv-05564 HSG 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 NOTICE OF MOTION TO DEFENDANTS AND THEIR ATTORNEYS OF RECORD: NOTICE IS HEREBY GIVEN that on July 13, 2017 at 2:00 pm or as soon thereafter as counsel may be heard by the above-entitled Court, located at 1301 Clay Street, Oakland, California, 94612, Plaintiff will and hereby does move the Court for partial summary judgment on the ground that there is no genuine issue as to any material fact as to Defendants’ liability for violation of the FMLA and CFRA and thus the moving party is entitled to judgment as a matter of law. This motion is based upon this Notice of Motion and Motion, the accompanying Memorandum of Points and Authorities, the declaration of Teresa Aguirre (and all exhibits attached thereto), all pleadings and papers on file in this action, and upon such other matters as may be presented to the Court at the time of the hearing. Respectfully submitted, Dated: June 2, 2017 KOCHAN & STEPHENSON /s/ Deborah Kochan By______________________________________ Deborah Kochan Attorneys for Plaintiff Case 4:16-cv-05564-HSG Document 59 Filed 06/02/17 Page 4 of 10 5 Pls Ntc Mtn and Mtn for Partial SJ Case No. 4:16-cv-05564 HSG 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 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION It is undisputed that Defendant State of California is a covered employer under both the Family Medical and Leave Act (FMLA), as well as the California Family Rights Act (CFRA). Similarly, it is also undisputed that as a 33 year, full-time employee Ms. Aguirre was entitled to leave to care for her dying father. Indeed, Defendants granted her request for leave and approved a 12:30-5:00 pm Monday through Friday schedule in response to her verified need to care for her father until noon each day. But then, after allowing her to work out of Defendants’ Lakeport office, which was only a half mile commute from her father’s house, Defendants insisted that Ms. Aguirre report to its Marysville office two-three days per week, which was at least a 2 hour, and sometimes as much as 2.5 hour, commute each way. In requiring Ms. Aguirre to work out of Defendants’ Marysville office instead of the Lakeport office, Defendants effectively denied Ms. Aguirre the full amount of leave to which she was entitled each day to care for her father. But despite the above undisputed facts which establish Defendants’ liability as a matter of law, Defendants still maintain they have done nothing wrong. Hence, the need for this motion. It is Plaintiff’s hope that with a Court Order establishing Defendants’ liability, the parties can finally engage in substantive settlement discussions in an effort to resolve this case without the need for a trial on the issue of damages. Case 4:16-cv-05564-HSG Document 59 Filed 06/02/17 Page 5 of 10 6 Pls Ntc Mtn and Mtn for Partial SJ Case No. 4:16-cv-05564 HSG 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. STATEMENT OF FACTS A. Ms. Aguirre’s Employment With the EDD Ms. Aguirre has a long history of exemplary performance with Defendant State of California’s EDD Department (EDD), most recently in the position of Employment Development Specialist I (EDS I). As an EDS I Ms. Aguirre’s direct supervisor was Defendant Carianne Huss, but as a practical matter she primarily reported to and was supervised by the next person up in the chain of command, Defendant Debra Mills. [See ¶2 of the Declaration of Plaintiff Teresa Aguirre in Support of Motion for Partial Summary Judgment of Defendants’ Liability for Violation of FMLA and CFRA (hereafter “Aguirre Dec.”]1 As an EDS I Ms. Aguirre “assist[ed] and perform[ed] less complex analytical, technical and administrative activities.” Her duties included such things as researching and analyzing program statistical data, assisting the manager in monitoring various operational budgets, and performing special projects when requested. As an EDS I she had no supervisorial responsibilities. As Mills described the position in a contemporaneous email, ‘”It’s all paperwork.” While the EDS I job description formally identified the job location as Marysville, it was expected that Ms. Aguirre would typically spend only two days a week working in the Marysville office and the other three in the Lakeport office. Ms. Aguirre and Mills both live in Lakeport, and on the days that Ms. Aguirre worked out of the Marysville office she typically made the over two hour drive to Marysville with Mills. Significantly though, there were stretches when Ms. Aguirre was assigned special duties and reported to the Marysville office only occasionally, if at all, and instead performed all of her EDS I duties out of the Lakeport office. 1 All cited evidence in support of this motion is attached as exhibits to the Declaration of Plaintiff Teresa Aguirre, filed herewith. Case 4:16-cv-05564-HSG Document 59 Filed 06/02/17 Page 6 of 10 7 Pls Ntc Mtn and Mtn for Partial SJ Case No. 4:16-cv-05564 HSG 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 B. Ms. Aguirre’s Leave In March 2016 Ms. Aguirre’s father became seriously ill, and she applied for leave so that she could care for him. The EDD determined that she was eligible for leave. [Exhibit A to Aguirre Dec.] Ms. Aguirre then provided the required medical certification verifying her father’s serious health condition and on March 23, 2016, her request for a reduced work schedule was granted. [Exhibit B-C to Aguirre Dec.] Ms. Aguirre’s work schedule was Monday through Friday from 12:30 to 5:00 pm and she was initially allowed to work exclusively out of the Lakeport office, which made it possible for her to care for her father each morning at his house in Lakeport until she was relieved by another caretaker at noon, after which she could make the short drive to the office in time to start her 12:30 pm shift. [Exhibit D to Aguirre Dec.] C. Defendants’ Interference With Ms. Aguirre’s Leave On May 10, 2016, after facing escalating pressure and hyperscrutiny with respect to her need to work out of the Lakeport office, in a meeting between Ms. Aguirre and Mills, Mills informed Ms. Aguirre that she would no longer be allowed to work exclusively out of the Lakeport office, but instead starting May 16th would be scheduled to work in the Marysville office. [Exhibit D to Aguirre Dec.] Mills acknowledged that Ms. Aguirre had repeatedly explained that she “could only work in Lake County to be close to [her] father and to accommodate [her] FMLA work hours as stipulated by [her] doctor.” Nevertheless, Mills maintained that Ms. Aguirre would be expected to report to work in Marysville two-three days a week for her afternoon shift. [Exhibit D.] As a result of Defendants’ interference with her right to take leave, Ms. Aguirre experienced such extreme anguish and stress that on June 1, 2016, she had no choice but to go out on a medical leave due to her own serious health condition. [Exhibit E to Aguirre Dec.] Case 4:16-cv-05564-HSG Document 59 Filed 06/02/17 Page 7 of 10 8 Pls Ntc Mtn and Mtn for Partial SJ Case No. 4:16-cv-05564 HSG 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. LEGAL ANALYSIS A. Defendants Interfered With Ms. Aguirre’s FMLA Leave To make out a prima facie case of FMLA interference an employee must establish: (1) that she was eligible for the FMLA's protections; (2) her employer was covered by the FMLA; (3) she was entitled to leave under the FMLA; (4) she provided sufficient notice of her intent to take leave; and (5) her employer denied her FMLA benefits to which she was entitled. Escriba v. Foster Poultry Farms, Inc. (9th Cir. 2014) 743 F.3d 1236, 1243 (citing Family and Medical Leave Act of 1993, § 2 et seq., 29 U.S.C.A. § 2601 et seq.) The FMLA contains expansive rights to intermittent and reduced schedule leaves that may be taken in small increments. See 29 USC § 2612(b). A reduced leave schedule is a change in the employee's schedule for a period of time, “normally from full-time to part-time.” 29 CFR § 825.202(a). Intermittent or reduced schedule leaves are available when “medically necessary,” as was the case for Ms. Aguirre, to care for the spouse, child or parent of the employee with a serious health condition. See 29 USC § 2612(a)(1)(C); 29 CFR § 825.112(a)(3). As detailed above, Defendants own documents establish, as a matter of law, all of the elements of Ms. Aguirre’s FMLA cause of action. [See Exhibits A-D to Aguirre Dec.] 1. Defendants’ conduct constitutes interference The Ninth Circuit treats claims like Ms. Aguirre’s, where an employer imposes an adverse employment action against the employee for taking FMLA leave, as “interference” claims under 29 USC § 2615(a)(1). Bachelder v. America West Airlines, Inc. (9th Cir. 2001) 259 F.3d 1112, 1124. The FMLA creates two interrelated, substantive employee rights: first, the employee has a right to use a certain amount of leave for protected reasons, and second, the employee has a right to return to his or her job or an equivalent job after using protected leave. 29 U.S.C. §§ 2612(a), 2614(a). Congress intended that these new entitlements would set “a minimum labor standard for leave,” in the tradition of statutes such as “the child labor laws, the minimum wage, Social Security, the safety and Case 4:16-cv-05564-HSG Document 59 Filed 06/02/17 Page 8 of 10 9 Pls Ntc Mtn and Mtn for Partial SJ Case No. 4:16-cv-05564 HSG 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 health laws, the pension and welfare benefit laws, and other labor laws that establish minimum standards for employment. [Citations omitted]. Implementing this objective, Congress made it unlawful for an employer to ‘interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided’ by the Act. Id. at 1122 (citing 29 U.S.C. § 2615(a)(1)). As the Court held in Xin Liu v. Amway Corporation (9th Cir. 2003) 347 F.3d 1125, 1134, an employer discourages an employee from taking leave under FMLA when the employee’s supervisor interferes with the length and dates of leave, including denying leave outright. With respect to the fifth and final element of Ms. Aguirre’s FMLA claim, that Defendants “interfered” with her attempt to exercise her right to leave, as described above a single document establishes that fact. Ms. Aguirre’s supervisors interfered with the length of her leave in requiring that she report to Defendants’ Marysville office for her afternoon shift of work, a two hour commute. In so doing Defendants put Ms. Aguirre in the untenable position of having to leave her father alone for two hours until her relief arrived at noon and cut what should have been an entire morning of leave to care for her father by at least two critical hours. 2. Defendants Mills and Huss are individually liable for interference The FMLA definition of “employer” extends to “any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer.” 29 USC § 2611(4)(A)(ii)(I). Thus, courts have held an individual supervisor liable for FMLA violations if he or she had “supervisory authority over the complaining employee and was responsible in whole or in part for the alleged violation.” Freemon v. Foley (ND IL 1995) 911 F.Supp. 326, 331; Mercer v. Borden (CD CA 1998) 11 F.Supp.2d 1190, 1191; Bryant v. Delbar Products, Inc. (MD TN 1998) 18 F.Supp.2d 799, 807. B. Defendant Interfered With Ms. Aguirre’s CFRA Leave It is an unlawful employment practice for a covered employer to interfere with, restrain or deny the exercise of, or the attempt to exercise, any rights under CFRA. Case 4:16-cv-05564-HSG Document 59 Filed 06/02/17 Page 9 of 10 10 Pls Ntc Mtn and Mtn for Partial SJ Case No. 4:16-cv-05564 HSG 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 Gov.C. § 12945.2(a), (t). As with a cause of action for FMLA interference, the elements of a cause of action for violation of CFRA rights are that: (1) defendant is a covered employer; (2) plaintiff is an eligible employee; (3) plaintiff exercised her right to take leave for a qualifying purpose; and (4) defendant interfered with plaintiff’s rights. The CFRA is substantially similar to the FMLA in allowing leave to be taken on an intermittent or reduced schedule basis. 2 Cal.C.Regs. § 11090(c)(2). Consistent with the FMLA, the CFRA allows employee requests for intermittent or reduced schedule leaves when medically necessary because of the serious health condition of the employee or the serious health condition of the employee's child, parent or spouse. 2 Cal.C.Regs. § 11090(e). As detailed in Section A, above, Defendants documents establish, as a matter of law, each of the elements for CFRA interference. IV. CONCLUSION This is the most clear-cut and simple case of FMLA/CFRA interference that Plaintiff’s counsel has seen in their 27 year history practicing Plaintiff’s side employment law. When Ms. Aguirre fought back and filed suit, this case should have promptly resolved. But that didn’t happen because Defendants maintain they did nothing wrong. A Court Order establishing liability should pave the way for resolution. Respectfully submitted, Dated: June 2, 2017 KOCHAN & STEPHENSON /s/ Deborah Kochan By______________________________________ Deborah Kochan Attorneys for Plaintiff Case 4:16-cv-05564-HSG Document 59 Filed 06/02/17 Page 10 of 10 Case 4:16-cv-05564-HSG Document 59-1 Filed 06/02/17 Page 1 of 17 Case 4:16-cv-05564-HSG Document 59-1 Filed 06/02/17 Page 2 of 17 Case 4:16-cv-05564-HSG Document 59-1 Filed 06/02/17 Page 3 of 17 Case 4:16-cv-05564-HSG Document 59-1 Filed 06/02/17 Page 4 of 17 Case 4:16-cv-05564-HSG Document 59-1 Filed 06/02/17 Page 5 of 17 Case 4:16-cv-05564-HSG Document 59-1 Filed 06/02/17 Page 6 of 17 Case 4:16-cv-05564-HSG Document 59-1 Filed 06/02/17 Page 7 of 17 Case 4:16-cv-05564-HSG Document 59-1 Filed 06/02/17 Page 8 of 17 Case 4:16-cv-05564-HSG Document 59-1 Filed 06/02/17 Page 9 of 17 Case 4:16-cv-05564-HSG Document 59-1 Filed 06/02/17 Page 10 of 17 Case 4:16-cv-05564-HSG Document 59-1 Filed 06/02/17 Page 11 of 17 Case 4:16-cv-05564-HSG Document 59-1 Filed 06/02/17 Page 12 of 17 Case 4:16-cv-05564-HSG Document 59-1 Filed 06/02/17 Page 13 of 17 Case 4:16-cv-05564-HSG Document 59-1 Filed 06/02/17 Page 14 of 17 Case 4:16-cv-05564-HSG Document 59-1 Filed 06/02/17 Page 15 of 17 Case 4:16-cv-05564-HSG Document 59-1 Filed 06/02/17 Page 16 of 17 Case 4:16-cv-05564-HSG Document 59-1 Filed 06/02/17 Page 17 of 17 1 [PROPOSED] ORDER GRANTING PLS MSJ Case No. 4:16-cv-05564 HSG 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 DEBORAH KOCHAN (S.B. #152089) dkochan@kochanstephenson.net MATHEW STEPHENSON (S.B. #154330) mstephenson@kochanstephenson.net KOCHAN & STEPHENSON 1680 Shattuck Avenue Berkeley, CA 94709 Telephone: (510) 649-1130 Facsimile: (510) 649-1131 Attorneys for Plaintiff TERESA AGUIRRE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION TERESA AGUIRRE, Plaintiff, vs. STATE OF CALIFORNIA; DEBRA MILLS; CARIANNE HUSS; and DOES 1 through 5, Defendants. Case No. 4:16-cv-05564-HSG [PROPOSED] ORDER GRANTING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT OF DEFENDANTS’ LIABILITY FOR VIOLATION OF FMLA AND CFRA Date: July 13, 2017 Time: 2:00 pm Ctrm: 2– 4th Floor Judge: Hon. Haywood S. Gilliam, Jr. Complaint Filed: October 4, 2016 Trial Date: December 11, 2017 Case 4:16-cv-05564-HSG Document 59-2 Filed 06/02/17 Page 1 of 2 2 [PROPOSED] ORDER GRANTING PLS MSJ Case No. 4:16-cv-05564 HSG 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 The motion for Partial Summary Judgment filed by Plaintiff Teresa Aguirre came upon for hearing on July 13, 2017, the Honorable Haywood S. Gilliam, Jr., presiding. After considering the papers filed in support of and in opposition thereto, the evidence and arguments of the parties, and all other matters presented to the Court, and for good cause shown, Plaintiff’s Motion for Partial Summary Judgment of Defendants’ Liability for Violation of FMLA and CFRA is GRANTED in its entirety based on the following: 1. Summary judgment is granted as to Plaintiff’s claim under the FMLA against Defendant State of California because there is no genuine issue as to any material fact as to its liability for violation of the FMLA; 2. Summary judgment is granted as to Plaintiff’s claim under the FMLA against Defendant Debra Mills because there is no genuine issue as to any material fact as to her liability for violation of the FMLA; 3. Summary judgment is granted as to Plaintiff’s claim under the FMLA against Defendant Carianne Huss because there is no genuine issue as to any material fact as to her liability for violation of the FMLA; 4. Summary judgment is granted as to Plaintiff’s claim under the CFRA as against Defendant State of California because there is no genuine issue as to any material fact as to its liability for violation of the CFRA. IT IS HEREBY ORDERED that Plaintiff is entitled to judgment as a matter of law as to the liability of Defendants as described above. Dated: ____________, 2017 ______________________________________________ THE HONORABLE HAYWOOD S. GILLIAM, JR. UNITED STATES DISTRICT JUDGE Case 4:16-cv-05564-HSG Document 59-2 Filed 06/02/17 Page 2 of 2