Arnulfo Gradilla v. Ruskin Manufacturing, Business Entity Unknown

320 F.3d 951, 8 Wage & Hour Cas.2d (BNA) 813, 2003 Daily Journal DAR 1789, 2003 Cal. Daily Op. Serv. 1372, 2003 U.S. App. LEXIS 2733, 83 Empl. Prac. Dec. (CCH) 41,335, 2003 WL 329016

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 14, 2003
• Docket: 01-56725
• Status: Published

Opinions

Opinion by Judge LEAVY; Dissent by Judge REINHARDT

LEAVY, Circuit Judge.

This case involves the right of an employee to take family and medical leave to care for a family member with a serious medical condition. We hold that under the California Family Rights Act (“CFRA”), an employee who leaves work to travel with and care for a family member with a serious health condition is not entitled to leave when the family member decides, in spite of her serious medical condition, to travel away from her home for reasons unrelated to her medical treatment.

FACTUAL AND PROCEDURAL BACKGROUND ¹

Arnulfo Gradilla worked as a sheet metal assembler at Ruskin’s Mira Loma plant from August 1995 until his termination on October 27, 1999. He was a union member and was covered by a collective bargaining agreement. Ruskin had a policy that required employees to call in if they were going to miss work. The policy, referred to by Ruskin as the “three day no-call/no show policy,” provides that if a worker does not call in or show up for work for three days, he will be dismissed.

Gradilla’s wife had a serious heart condition, so serious that her doctor thought that she might require a heart transplant. Mrs. Gradilla took medication for her heart condition. When she experienced a stressful event, her blood pressure rose, her heart beat fast, and she felt dizzy and faint. At these times, she could not care for herself. She needed Gradilla to administer the correct dosage of medication to her, as well as to calm her, so that her heart rate would slow down. Only Gradil-la knew how to take care of her when she had a traumatic episode. Gradilla’s supervisors knew about Mrs. Gradilla’s heart problem, even though Gradilla had never previously asked for leave under the family leave statute. The supervisors never asked Gradilla for medical documentation of her condition, and he never provided any.

Gradilla was fired after an unfortunate confluence of events that occurred in October 1999. On Tuesday, October 19, Gradil-la complained at work of pain in his right shoulder and asked to see the doctor. His employer reassigned him to light work but did not send him for medical treatment. The next day, Gradilla’s shoulder still hurt, so he went to his supervisor’s office to obtain written permission to see the doctor.² While he was filling out the necessary paperwork, Gradilla received a telephone call from his wife. Mrs. Gradilla informed him that her father had died in an automobile accident, and she wanted him to accompany her to Mexico for the funeral. Mrs. Gradilla needed her husband to care for her during the trip because her father’s death and funeral were stressful, emotionally upsetting events that aggravated her heart condition. Mrs. Gra-dilla told her husband that they needed to leave for Mexico that afternoon.

Gradilla asked for permission to leave work to accompany his wife to the funeral. His supervisor told him that he did not qualify for bereavement leave under the collective bargaining agreement because his father-in-law was not a member of his immediate family. Gradilla then explained that he was not asking for bereavement leave. He told his supervisors that he needed to accompany his wife because of her heart condition, not because he personally wanted to attend the funeral. His supervisors then gave him permission to leave. Neither Gradilla nor his supervisors mentioned the leave as a request under the California Family Rights Act.

After the conversation in the office, Gra-dilla left work and headed straight for the airport to meet his wife and several other members of her family, who were also going to Mexico for the funeral. Gradilla called his employer from the airport and reported that he was about to leave for Mexico and would be back in two or three days. Later that afternoon, his son telephoned the employer and informed the person with whom he spoke that Gradilla would not be in on Thursday or Friday, but that he would return to work as usual on Monday. While the Gradillas were in Mexico, Mrs. Gradilla experienced problems with her heart condition, and Gradilla cared for her by administering her medication and otherwise helping to keep her calm. Because he was on a ranch with no telephone, and because he thought he would miss only two days of work, Gradilla did not call in again to report his absence.

Unbeknownst to Gradilla, Ruskin had scheduled a mandatory overtime workday on Saturday, October 23.³ Because of the mandatory overtime workday, Gradilla missed three days of work. When Gradilla returned to work on Monday, October 25, Ruskin’s human resources department told him to go home and wait for someone from the company to contact him. Three days later, on October 28, he was fired. The proffered reason for the termination was that Gradilla violated Ruskin’s three day no-call/no-show policy.

After he was fired, Gradilla filed a complaint with the Department of Fair Employment and Housing regarding his discharge and subsequently was issued a right-to-sue notice. He also filed a retaliatory discharge claim with the Workers’ Compensation Board under Cal. Labor Code § 132a as well as a workers’ compensation claim for the shoulder injury.

Next, Gradilla filed this action in state court. Ruskin removed the case to federal court on the basis of diversity jurisdiction. The complaint contained five causes of action: (1) violation of Cal. Govt.Code § 12945.2 (California Family Rights Act);⁴ (2) wrongful termination in violation of Cal. Labor Code § 132a (retaliation for filing a workers’ compensation claim); (3) breach of employment contract; (4) and (5) negligent and intentional infliction of emotional distress.

Ruskin moved for summary judgment, and the district court granted the motion. The court held that Gradilla was not protected by the California Family Rights Act bécause he failed to provide proper medical certification of'his wife’s illness. The court offered two alternative reasons for dismissing the retaliation claim: first, the exclusive forum for a § 132a claim is the Workers’ Compensation Appeals Board; and second, to the extent that the complaint raised the claim that Ruskin retaliated against Gradilla in violation of public policy, Gradilla failed to establish a prima facie case. Finally, the district judge dismissed the breach of contract and tort claims on the grounds that they were preempted by § 301 of the Labor Management Relations Act (“LMRA”). Gradilla appealed. ■

DISCUSSION

We review a grant of summary judgment de novo, drawing all inferences in favor of the nonmoving party. Aguilera v. Pirelli Armstrong Tire Corp., 223 F.3d 1010, 1014 (9th Cir.2000). We will affirm only if there are no genuine issues of material fact and the district court applied the law correctly. Id. The district judge’s decision regarding preemption is reviewed de novo. Id.

A. The California Family Rights Act Claim

Gradilla asserts that his termination was unlawful because he had a right to family care and medical leave under the California Family Rights Act (“CFRA”). The relevant portion of the CFRA provides:

(a) [I]t shall be an unlawful employment practice for any employer ... to refuse to grant a request by any employee ... to take up to a total of 12 work-weeks in any 12-month period for family care and medical leave....

(c) For purposes of this section:

(3) “Family care and medical leave” means ...

(B) Leave to care for a parent or spouse who has a serious health condition.

Cal. Govt.Code § 12945.2. The CFRA was modeled on the federal Family and Medical Leave Act (FMLA), 29 U.S.C. §§ 2601-2654, and it incorporates FMLA regulations to the extent that they do not conflict with California law. Cal. Admin. Code, tit. 2, § 7297.10. Cases interpreting the FMLA apply equally to CFRA claims in the absence of a conflict. Mora v. Chem-Tronics, 16 F.Supp.2d 1192, 1202-03 (S.D.Cal.1998). Here, there is no conflict between CFRA and FMLA law. We therefore apply federal FMLA law to Gra-dilla’s CFRA claim.

In order to qualify for CFRA leave under the statute, Gradilla must prove that he: (1) made a “request”; (2) for leave to “care for” a parent or spouse; (3) who has a “serious health condition.” Only the first two elements are at issue in this appeal.

1. The request for leave, notice, and certification

In his declaration in support of Ruskin’s motion for summary judgment, Plant Superintendent John Shaver claimed: “Gra-dilla did not inform me that he needed to go to Mexico because of any health condition experienced by his wife.” However, Gradilla asserted in his deposition that he told Mr. Shaver “[t]hat it was important for me to go to Mexico because my wife felt ill and that it was an emergency.” Gradilla’s declaration similarly states that he “requested permission from my supervisors to leave to accompany my wife to Mexico due to her heart condition.” Gra-dilla also testified in his deposition that his supervisors knew about his wife’s heart condition well before the day he accompanied her to Mexico.

The FMLA regulations provide that employees “need not expressly assert rights under the FMLA or even mention the FMLA, but may only state that leave is needed for [a qualifying reason].” 29 C.F.R. § 825.302(c); see also Bachelder v. America West Airlines, Inc., 259 F.3d 1112, 1130-31 (9th Cir.2001) (“The FMLA does not require that an employee give notice of a desire to invoke the FMLA. Rather, it requires that the employee give notice of need for FMLA leave.”) (quoting Price v. City of Ft. Wayne, 117 F.3d 1022, 1026 (7th Cir.1997)). It is the employer’s responsibility, not the employee’s, to determine whether a leave request is likely to be covered by the FMLA. Bailey v. Southwest Gas Co., 275 F.3d 1181, 1185 (9th Cir.2002); Bachelder, 259 F.3d at 1130-31. If the employer requires more information in order to decide whether the FMLA applies to an employee’s leave request, it is the employer’s duty to make further inquiries until it obtains enough information to make a determination. Bailey, 275 F.3d at 1185; Bachelder 259 F.3d at 1130-31. In this case, Gradilla testified that his employers knew about his wife’s medical condition, and that he mentioned her medical condition as the reason he needed to accompany her to Mexico. On this evidence, a reasonable jury could conclude that Gradilla provided sufficient notice to his employer under the CFRA.

The district court found that Gradilla could not claim CFRA’s protections because he failed to follow CFRA’s notice and certification provisions. This finding was in error. CFRA’s notice provision reads: “If the employee’s need for a leave pursuant to this section is foreseeable, the employee shall provide the employer with reasonable advance notice of the need for the leave.” Cal. Gov’t Code § 12945.2(h). CFRA’s text does not specify what an employee should do if his need for leave is not foreseeable. However, FMLA regulations state that when the need for leave is unforeseeable, the employee should give notice “as soon as is practicable under the facts and circumstances of the particular case.” 29 C.F.R. § 825.303. As for certification, the CFRA provides that: “An employer may require that an employee’s request for leave to care for a child, a spouse, or a parent who has a serious health condition be supported by a certification issued by the health care provider of the individual requiring care.” Cal. Gov’t Code § 12945.2(j)(l) (emphasis added). This provision does not state that an employee must provide certification in order to obtain leave, as the district court held. Rather, it provides that an employer may require certification if it so chooses. However, Ruskin did not require such certification. Rather, its written policy allows it to ask for certification when it believes it advisable to do so. The policy reads: “Ruskin may require that a family leave related to a serious health condition be supported by certification.” Gradilla testified that, although his supervisors knew about his wife’s medical condition, none of them ever asked him to provide certification. Ruskin offered no evidence to the contrary. The district court erred in its finding that Gradilla violated CFRA’s certification requirement.

The district court also erred when it found that Gradilla was not protected by the CFRA because “his wife’s doctor never requested or required him to accompany her to Mexico.” Neither the CFRA nor the FMLA regulations provides that a doctor must “request” or “require” an employee to provide medical care to a relative who has a serious health condition in order for the employee to qualify for the Act’s protection. Rather, an employee is entitled to CFRA leave if the purpose of the leave is to “care for” a family member with a serious medical condition.

2. Leave “to care for” a family member

Gradilla’s claim under the CFRA nevertheless fails because he has not presented evidence that he left work “to care for” his spouse within the scope of the CFRA. The scope of the CFRA does not include a requirement that an employer must accommodate an employee whose spouse decides, in spite of her serious medical condition, to travel away from her home for reasons unrelated to her medical treatment.

In Marchisheck v. San Mateo County, 199 F.3d 1068 (9th Cir.1999), an employee left work to move her son to the Philippines. This court held that the employee had not created a factual dispute on the question of whether her son had a serious medical condition under the FMLA. The court further held that even the son had a serious medical condition, the employee was not entitled to FMLA leave because she was not moving her son so that he could receive medical or psychological treatment. We stated:

[Plaintiff] was not moving Shaun so that he could receive superior — or any — medical or psychological treatment. Indeed, Plaintiff had no specific plans to seek medical attention for Shaun when she reached the Philippines, and he did not see a doctor of any kind for more than five months after he moved overseas. Further, it is undisputed that there were no psychological services available within a three-hour drive of the rural area of the Philippines to which Plaintiff took Shaun.

Marchisheck, 199 F.3d at 1076.

In Marchisheck, the son apparently did not require medical or psychological treatment during his travel, but in this case, Gradilla’s wife needed her husband to provide medical and psychological care during their trip to Mexico. However, this is a distinction without a difference under the CFRA, because in Marchisheck and in this case, the purpose and destination of the travel was to travel away from, home for personal, not medical, reasons. In both cases, the person with a serious medical condition was distancing themselves from medical treatment.

The relevant administrative rule, 29 C.F.R. § 825.116(a), (b),. gives several examples of “caring for” a family member:

(a) It includes situations where, for example, because of a serious health condition, the family member is unable to care for his or her own basic medical, hygienic, or nutritional needs or safety, or is unable to transport himself or herself to the doctor, etc. The term also includes providing psychological comfort and reassurance which would be beneficial to a child, spouse, or parent with a serious health condition who is receiving inpatient or home care.

(b) The term also includes situations where the employee may be needed to fill in for others who are caring for the family member, or to make arrangements for changes in care, such as transfer to a nursing home.

(Emphasis added).

These examples suggest that “caring for” a family member with a serious health condition involves some level of participation in ongoing medical or psychological treatment of that condition, either inpatient or at home. The regulations mention “transport” which is “to the doctor, etc.” and “transfer” which is “to a nursing home. ” Accord Pang v. Beverly Hospital, Inc., 79 Cal.App.4th 986, 94 Cal.Rptr.2d 643 (2000) (employee did not leave work to “care for” her elderly mother with a serious health condition when she helped her mother move from a two-story home to a one-level apartment.).

It is undisputed that “care” includes both physical and psychological care, and that a parent or spouse can provide the care. In Scamihorn v. General Truck Drivers, 282 F.3d 1078 (9th Cir.2002), we held that the employee had created a triable issue of fact regarding his eligibility for FMLA leave when the employee left work to move to his father’s home because his presence in the home providing psychological support helped in the father’s recovery from depression. Scamihorn, 282 F.3d at 1088. Scamihom does not support the proposition that physical or psychological care by a spouse or parent is covered by the FMLA whenever the family member with a serious health condition chooses to travel for non-medical reasons.

The circumstances of the travel in this case, a funeral in Mexico, were sympathetic, unfortunate, and lawful. If we hold that the CFRA covered this situation, an employer would be required to grant family and medical leave whenever an employee has a spouse, parent, or child with a serious medical condition, and that family member requested the employee’s assistance while traveling. The travel could be for unlimited personal reasons, to any destination, for lawful or unlawful purposes, for business or vacation. Courts would then have to decide, in each case, the worthiness of the family member’s travel motives. Such a broad scope finds no support in the statute, regulations, or case law.

The judgment of the district court dismissing the claim under the CFRA is affirmed.

B. The Workers’ Compensation Retaliation Claim

Gradilla contends, in the alternative, that he was fired in retaliation for filing a fourth workers’ compensation claim. It is unclear whether Gradilla’s complaint states a claim for violation of Cal. Labor Code § 132a, a claim for which the exclusive forum is the Workers’ Compensation Appeals Board, or whether it states a claim for retaliation in violation of the public policy expressed by § 132a. See City of Moorpark v. Superior Court, 18 Cal.4th 1143, 1161, 77 Cal.Rptr.2d 445, 959 P.2d 752 (1998) (holding that plaintiff may simultaneously pursue § 132a claim before Workers’ Compensation Appeals Board and action in state court for common-law violation of public policy). However, we need not decide this question because we agree with the district court that, even if we construe the complaint to plead a public policy violation, Gradilla cannot establish a prima facie case of wrongful termination.

To make a prima facie case of wrongful termination, Gradilla must show: (1) he was engaged in a protected activity; (2) he subsequently was subjected to an adverse employment action; and (3) there is a nexus, or causal link, between the protected activity and the adverse employment action. See Yartzoff v. Thomas, 809 F.2d 1371, 1375 (9th Cir.1987); Flait v. N. Am. Watch Corp., 3 Cal.App.4th 467, 475-76, 4 Cal.Rptr.2d 522 (1992) (holding that California state law claims of retaliatory discharge are evaluated under the framework used in federal law relating to discrimination and retaliation). Gradilla’s claim fails because he did not establish a nexus between the filing of the claim and his termination. Gradilla presented no evidence, either in his deposition or in the form of a declaration, that Ruskin knew that he had filed, or was going to file, a workers’ compensation claim before it made the decision to terminate him. The link is not established simply by evidence that the insurance company notified Gra-dilla of its receipt of the claim; rather, there must be some evidence that Ruskin was aware that a claim had been filed or that it had participated in the filing process. Gradilla offered no evidence on this point. He did present evidence that when his wife called he was obtaining written permission to see the doctor because his shoulder hurt; however, the fact that he asked to see a doctor does not warrant a conclusion that Ruskin knew that he had suffered an industrial injury and that he intended to file a workers’ compensation claim. It is possible, as Gradilla argues, that the trip from the plant to the doctor is the first step in a chain of events that always and inevitably leads to the filing of a workers’ compensation claim. If that is true, Gradilla’s request to see the doctor would have put Ruskin on notice that he was about to file a fourth claim. However, there is no evidence in the record to support such a theory. Accordingly, we affirm summary judgment for Ruskin on this claim.

C. The Breach-of-Contract and Tort Claims

It is undisputed that Gradilla was a member of a union, and that his position was covered by the terms of a collective bargaining agreement (“CBA”). The district court found that, because of the existence of the GBA, Gradilla’s common law breach of contract and tort claims are preempted by § 301 of the Labor Management Relations Act (“LMRA”). We affirm the district court’s judgment.

Section 301 of the LMRA preempts state law claims that are based directly on rights created by a collective bargaining agreement as well as claims that are substantially dependent on an interpretation of a collective bargaining agreement. Caterpillar, Inc. v. Williams, 482 U.S. 386, 394, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). The claim that Gradilla was contractually afforded protection against discharge is necessarily based on the collective bargaining agreement, therefore Gradilla’s breach-of-contract claim is preempted by § 301 of the LMRA.

Gradilla’s tort claims for negligent and intentional infliction of emotional distress are also preempted. Section 301 does not preempt claims for state law rights that do not reasonably require the court to interpret an existing provision of a CBA to resolve the dispute. See Cramer v. Consolidated Freightways, Inc., 255 F.3d 683, 697 (9th Cir.2001). However, because Gradilla has not established a claim under the CFRA or a claim for retaliatory discharge under Cal. Labor Code § 132a, his tort claims resulting from the termination of his employment arise out of the same conduct which formed the basis of his breach of contract claim and are also preempted. See Chmiel v. Beverly Wilshire Hotel Co., 873 F.2d 1283, 1286 (9th Cir.1989).

CONCLUSION

Gradilla’s claim under the CFRA fails because the personal travel to Mexico for a funeral is not within the scope of the statute. Gradilla did not present enough evidence to create a triable issue of fact with respect to his workers’ compensation retaliation claim, and his breach of contract claim and tort claims are preempted by § 301 of the LMRA. Therefore, we affirm the district court’s grant of summary judgment.

AFFIRMED.

1 . Because we are reviewing a grant of summary judgment, we state all facts in the light most favorable to the non-moving party and assume that all disputed facts are resolved in his favor. Aguilera v. Pirelli Armstrong Tire Corp., 223 F.3d 1010, 1014 (9th Cir.2000).

2 . This injury ultimately formed the basis of Gradilla’s fourth workers' compensation claim. Gradilla had filed three previous workers’ compensation claims: the first in March 1997, for a hand drill injury; the second in October 1997, for left shoulder pain; and the third in April 1999, for a foot injury. There is no contention that any of these injuries was either fraudulent or attributable to any negligence on Gradilla’s part.

3 . Gradilla did not know about the mandatory overtime before he left. He asserts that Ruskin did not post notice of the mandatory overtime until after he had left for Mexico. Ruskin claims that it posted the notice on Tuesday, October 19. This factual dispute is irrelevant to our decision.

4 . In the original Complaint, this cause of action was erroneously captioned "Refusal to Accommodate Disability in Violation of Government Code Section 12940(a).” Gradilla corrected the error on June 20 by filing a Notice of Errata stating that the correct caption for the claim was "Violation of Government Code Section 12945.2.”