56 Cal.App.5th 318
Cal. Ct. App.2020Background
- The MTA CBA’s absenteeism rule (Art. 27 §5) disciplines operators after a set number of "charged" absences; one charged absence is removed if the employee has 60 consecutive calendar days without a charged absence. Eleven types of absences (including FMLA/CFRA leave) are expressly excluded from being "charged."
- MTA’s Dept. HR software tags absences by code; any non‑charged absence (including CFRA) neither counts as a charged absence nor counts toward the 60‑day clearance period (i.e., the 60‑day clock is effectively paused).
- Alfonso Lares, a bus operator, took multiple CFRA leaves and accumulated charged absences; two multi‑day CFRA leaves fell within periods that, if counted toward the 60‑day clock, would have cleared prior charged absences. He was terminated after an eighth charged absence.
- Lares sued for CFRA interference and retaliation (and related claims). The trial court granted summary judgment for MTA, holding CFRA does not require employers to allow accrual of absence‑clearance time during leave and that MTA treated unpaid leaves uniformly.
- The Court of Appeal affirmed: extending an absence‑clearance period by days on CFRA leave does not violate CFRA so long as the employer treats CFRA the same as other unpaid, excluded leaves; Lares failed to raise a triable issue that MTA treated CFRA differently.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether employer must count CFRA leave days toward the 60‑day absence‑clearance period | Lares: not counting CFRA days effectively "counts" the leave against the employee and penalizes CFRA use in violation of CFRA and Cal. Code Regs. tit. 2 §11094(b) | MTA: clearance is an earned benefit accrued by being available/working; CFRA does not require accrual of such benefits during leave | Court: No CFRA violation. Employer may extend clearance by days on CFRA leave because clearance is an accrued work benefit; CFRA does not require accrual during leave. |
| Whether MTA treated CFRA leave worse than other unpaid, excluded leaves (e.g., jury, bereavement, military) | Lares: MTA counts some unpaid leaves toward clearance but not CFRA, showing discriminatory treatment | MTA: software and deposition evidence show all excluded/unpaid leaves are treated the same (non‑counting for clearance) | Court: No triable issue. Record shows MTA treats excluded unpaid leaves uniformly; summary judgment for MTA affirmed. |
Key Cases Cited
- Bailey v. Pregis Innovative Packaging, Inc., 600 F.3d 748 (7th Cir. 2010) (no‑fault attendance points are an accrued benefit earned by working; employer need not permit accrual during FMLA leave)
- Schmauch v. Honda of America Mfg., Inc., 295 F. Supp. 2d 823 (S.D. Ohio 2003) (district court found triable issue where employer extended attendance improvement program during FMLA leave; court here distinguishes it)
- Chaffin v. John H. Carter Co., Inc., 179 F.3d 316 (5th Cir. 1999) (employer cannot penalize employees for exercising FMLA rights; cited for general principle)
- Moore v. Regents of Univ. of Cal., 248 Cal.App.4th 216 (Cal. Ct. App. 2016) (describing CFRA purpose and job‑protection principles)