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Big Lots Stores v. Super. Ct. (CA4/1 D077486 11/20/20) Misclassification/Pro Hac Vice Order
This lawsuit is one of many recent attempts to challenge what some believe are inappropriate efforts by business entities to misclassify workers as “managerial” employees in order to avoid paying overtime and other benefits to which they would otherwise be entitled. In this case, real parties in interest and plaintiffs Menlo, Ngo, Pedraza and Smith are former store managers for petitioner and defendant Big Lots Inc. who claim they spent less than 50 percent of their worktime on managerial tasks and, as a result, should have been paid overtime compensation for hours worked in excess of a standard 40-hour week.
The writ proceeding before us represents an interesting but minor procedural skirmish in that much larger legal battle. Big Lots is an Ohio corporation. When this lawsuit was first filed, it retained a California law firm—Haight Brown & Bonesteel LLP (Haight Brown)—as counsel of record. Big Lots later sought the superior court’s permission for attorneys from an Ohio law firm—Vorys, Sater, Seymour & Pease LLP (Vorys)—to also represent it. This request is known as an application for an out-of-state lawyer to be admitted “pro hac vice” to practice law before the court. The trial judge ultimately granted applications filed by three different attorneys in the Vorys firm. But after later being advised that these Ohio attorneys were attempting to represent various current and former Big Lots managers in depositions noticed by plaintiffs, the court revoked pro hac vice authorization for all three lawyers. Big Lots asks that we overturn that order by means of this writ petition.
Addressing the narrow issue before us, we chart a course between the polar positions of the two parties. We agree with the trial judge that there is a difference between an attorney’s representation of the defendant corporation in a lawsuit and his or her representation of current or former employee witnesses. Pro hac vice admission as to one client does not necessarily allow a lawyer to represent a different client even if substantive law does not otherwise prohibit it. We nonetheless conclude that the total revocation of pro hac vice status for the Vorys attorneys was not supported by the record then before the court. The scope of the court’s pro hac vice orders did not become a disputed issue until after the first two orders were entered, and all the depositions (at which the Vorys attorneys represented the deponent) took place before plaintiffs’ counsel raised the issue with the court in conjunction with the third pro hac vice application.
At that point, having clarified the scope of its orders, the trial court could have prohibited additional representation of current and former employee-deponents absent further court order (the more limited remedy that plaintiffs requested). And it could have set a further hearing to determine whether, in contacting the prospective deponents, the Vorys attorneys engaged in some form of ethical misconduct that would justify other corrective action. But in advance of such a hearing and appropriately supported findings, the circumstances did not justify barring all further participation by Big Lots’ counsel of choice based on conduct that occurred before the issue was ever presented to the trial court. We therefore grant the petition to vacate the revocation order, but return the matter to the trial judge for any additional hearings and/or orders that she deems are warranted.
Coughenour v. Del Taco (CA4/2 E072772 11/20/20) Disaffirmance of Arbitration Contract/Age of Majority
Plaintiff and respondent Sarah Coughenour worked for defendant and appellant Del Taco, LLC, starting when she was 16 years old. When she was first employed by Del Taco, she signed a “Mutual Agreement to Arbitrate” (Agreement). After Coughenour reached the age of 18, she continued working for Del Taco for four months. Coughenour quit and filed a lawsuit against Del Taco for sexual harassment committed by one of their employees, wage and hour claims brought pursuant to the Labor Code, and other claims under the Fair Housing and Employment Housing Act (Complaint). Del Taco filed a motion to compel arbitration against Coughenour (Motion). The trial court denied the Motion, finding that Coughenour’s filing of the lawsuit was a disaffirmance of the Agreement within the meaning of Family Code section 6710, which allows a person upon reaching majority age to disaffirm a contract entered into while a minor.
Del Taco appeals the denial of the Motion arguing that by working for Del Taco for four months after she reached the age of majority, she ratified the Agreement, which estopped her power to disaffirm the Agreement. In the alternative, Del Taco argues that Coughenour did not disaffirm the Agreement within a “reasonable time” after reaching the age of 18 as required by Family Code section 6710.
Castillo v. Bank of America (9th Cir. No. 19-56228 11/18/20) Wage & Hour/Class Certification
The panel affirmed the district court’s order denying a plaintiff’s motion to certify a class regarding her overtime-wage claim under California law against Bank of America, N.A.
The plaintiff sought to certify a class of hourly-paid, nonmanagerial call center workers. The panel held that she established the requirements of commonality and typicality under Fed. R. Civ. P. 23(a)(2)–(3), but not predominance under Rule 23(b)(3) because the challenged Bank of America policy either did not apply or did not cause injury to many employees.
Levone Harris v. Kim Industrial, Inc. (9th Cir. 20-16767 11/13/20) Wage & Hour/CAFA
In order to remove a case commenced as a class action in a state court, the Class Action Fairness Act of 2005 (“CAFA”) requires that the removing defendant allege that the amount in controversy exceeds $5 million. 28 U.S.C. § 1332(d)(2). Here, the plaintiff factually attacked the defendant’s allegations regarding the amount in controversy. After the parties had an opportunity to submit evidence, the district court remanded the case to state court because it found that the defendant based the claimed amount in controversy on unreasonable assumptions. We affirm.
Brennon B. v. Super. Ct. (CA1/1 A157026 11/13/20) Unruh Civil Rights Act/School Districts
We are asked to decide two issues: (1) whether a public school district is a business establishment for purposes of the Unruh Civil Rights Act (Civ. Code, § 51), and (2) even if a school district is not a business establishment, whether it can nevertheless be sued under the Unruh Act where, as here, the alleged discriminatory conduct is actionable under the Americans With Disabilities Act (ADA) (42 U.S.C. § 12101 et seq.). Both are issues of first impression in the California appellate courts.
Our Supreme Court has examined the meaning of the term “business establishment” as used in the Unruh Act in a number of cases. However, the defendant in each was a private entity. Thus, the court has had no occasion to consider whether a government entity, and specifically an agent of the state performing a state constitutional obligation, such as a public school district, is a business establishment within the meaning of the Act.
We have therefore followed the analytical template our high court has employed in deciding whether a private entity is a business establishment for purposes of the Act, examining the historical genesis of the Act and the Act’s limited legislative history, and canvassing the court’s decisions and considering the scholarly articles to which the court has regularly cited, as well as other pertinent authorities. This multi-pronged inquiry leads us to conclude public school districts are not business establishments under the Unruh Act.
We further conclude the Unruh Act imposes liability only on business establishments and therefore reject petitioner’s alternative assertion that, even if a public school district is not a business establishment, it may nevertheless be held liable under the Act where, as here, the alleged discriminatory conduct is actionable under the ADA. Reading the language on which petitioner predicates his assertion in context, and in light of its legislative history and our high court’s decisions discussing it, we conclude this language makes explicit that any violation of the ADA by a business establishment is also a violation of the Unruh Act.
In reaching these conclusions, we are by no means suggesting our public school districts are not subject to stringent anti-discrimination laws. They are. These include the panoply of antidiscrimination statutes set forth in the Education Code and applicable to all schools receiving any form of state funding or assistance (Ed. Code, § 200 et seq.) and the comprehensive antidiscrimination provisions set forth in the Government Code and applicable to all government entities (Gov. Code, § 11135), as well as federal constitutional mandates (actionable under 42 U.S.C. § 1983), and statutes such as Title IX of the Education Amendments of 1972 (20 U.S.C. § 1681 et seq.), Title II of the ADA (42 U.S.C. § 12131 et seq.), and section 504 of the Rehabilitation Act of 1973 (29 U.S.C. § 794).
We thus conclude the trial court did not err in sustaining the school district’s demurrer to petitioner’s cause of action under the Unruh Act without leave to amend, and therefore deny his petition for a writ of mandate (Code Civ. Proc., § 1085) challenging that ruling.
Brown v. TGS Management Co., LLC (CA4/3 G058323, filed 10/13/20, ord. pub. 11/12/20) Arbitration/Restrictive Employment Agreement
This appeal is from a judgment confirming an arbitration award in favor of defendant TGS Management Company (TGS) in an employment contract dispute with TGS’s former employee, plaintiff Richard Hale Brown (Brown). Brown contends we must vacate the judgment because the arbitration award exceeded the arbitrator’s powers “and the award cannot be corrected without affecting the merits of the decision[.]” (Code Civ. Proc., § 1286.2, subd. (a)(4).) Brown argues we may review the arbitration award under Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1 (Moncharsh), because the award is “inconsistent with the protection of a party’s statutory rights” and conflicts with “explicit legislative expression of public policy[.]” (Id. at p. 32.)
The specific statutory right at issue in the underlying dispute is Brown’s right to work in his chosen field free of contractual restraints on competition. The Legislature expressed that right in the simple but sweeping language of Business and Professions Code section 16600 (section 16600): “Except as provided in this chapter, every contract by which anyone is restrained from engaging in a lawful profession, trade or business of any kind is to that extent void.”
As we explain below, Brown’s appeal has merit. We conclude the arbitrator exceeded his power in issuing an award enforcing provisions of an employment agreement which illegally restrict Brown’s right to work. Consequently, we reverse the judgment and remand the matter to the trial court for further proceedings consistent with this opinion.
California v. Texas (US 19-840 oral arg. transcript 11/10/20) Affordable Care Act
As part of the Patient Protection and Affordable Care Act (ACA), Congress adopted 26 U.S.C. § 5000A. Section 5000A provided that "applicable individual[s] shall" ensure that they are "covered under minimum essential coverage," 26 U.S.C. § 5000A(a); required any "taxpayer" who did not obtain such coverage to make a "[s]hared responsibility payment," id. § 5000A(b); and set the amount of that payment, id.
§ 5000A(c). In National Federation of Independent Business v. Sebelius, 567 U.S. 519, 574 (2012), this Court held that Congress lacked the power to impose a stand-alone command to purchase health insurance but upheld Section 5000A as a whole as an exercise of Congress's taxing power, concluding that it affords individuals a "lawful choice" between buying health insurance or paying a tax in the amount specified in Section 5000A(c). In 2017, Congress set that amount at zero but retained the remaining provisions of the ACA.
The questions presented are:
1. Whether the individual and state plaintiffs in this case have established Article III standing to challenge the minimum coverage provision in Section 5000A(a).
2. Whether reducing the amount specified in Section 5000A(c) to zero rendered the minimum coverage provision unconstitutional.
3. If so, whether the minimum coverage provision is severable from the rest of the ACA.
Semprini v. Wedbush Securities, Inc. (CA4/3 G057740 11/9/20) Wage and Hour Exemption /Commissions
Under California law, an employer generally must pay its employee overtime if he or she works above a set number of hours. A person employed in an administrative capacity, however, is exempt from this and other wage and hour requirements if he or she performs certain duties and is paid a monthly salary equivalent to at least twice the state minimum wage for full-time employment.
The question presented here is whether a compensation plan based solely on commissions, with recoverable advances on future commissions, qualifies as a “salary” for purposes of this exemption. We conclude it does not. Since the trial court found the employees in question are exempt and entered judgment for the employer, we reverse and remand this matter for further proceedings.
Cruz v. Fusion Buffet, Inc. (CA4/1 D075479, filed 10/15/20, ord. pub. 11/9/20) Wage & Hour/Attorneys’ Fees and Costs
Defendants Fusion Buffet, Inc. (Fusion Buffet), Xiao Yan Chen, and Zhao Jia Lin (jointly "the defendants") appeal from postjudgment orders of the trial court regarding attorney fees and costs. The defendants contend that the court erred in: (1) granting plaintiff Justine Cruz's motion for attorney fees and costs against Fusion Buffet and in awarding her fees and costs in the amount of $47,132.50; (2) denying the defendants’ motion to strike or to tax Cruz's costs; (3) denying the motion filed by Chen and Lin seeking attorney fees and costs against Cruz in the amount of $22,735; and (4) granting Cruz's motion to strike Chen and Lin's costs.
We conclude that the defendants have failed to demonstrate reversible error in the court's determinations with respect to these four postjudgment orders. We therefore affirm the challenged orders.
Stone v. United Healthcare Ins. Co. (9th Cir. 19-16227 11/9/20) ERISA
The panel affirmed the district court’s grant of summary judgment in favor of the defendants in an ERISA action concerning the denial of health care coverage for out-of-state residential treatment for anorexia nervosa.
The panel held that defendants’ denial of coverage did not violate the Mental Health Parity and Addiction Equity Act or the California Mental Health Parity Act because the denial was based solely on the ERISA plan’s exclusion of coverage for out-of-state treatment, which applied equally to mental and physical illnesses.
S.F. Taxi Coalition v. City & Cty. of S.F. (9th Cir. 19-16439 11/9/20) Taxi Drivers/Equal Protection/Age Discrimination
The panel affirmed the district court’s judgment on the pleadings in favor of defendants, but remanded for the district court to consider whether plaintiffs should be given leave to amend some of their state law claims in an action challenging regulations adopted in 2018 by the San Francisco Municipal Transportation Agency which favored recent owners of taxi permits (called “medallions”) over those who obtained their permits years ago.
The 2018 regulations favored taxi drivers who recently obtained medallions from the City of San Francisco for $250,000—only to see ridership dry up in the face of Uber and Lyft and other ride-sharing services. For example, the 2018 regulations gave priority for lucrative airport pick-up rides to recent medallion owners. Several taxi drivers, as well as groups representing them, challenged the 2018 regulations as violating equal protection, substantive due process, the California Environmental Quality Act (CEQA), and state anti-age discrimination law.
The panel held that rational basis review applied to the equal protection claim because this case did not implicate suspect or quasi-suspect classifications. The panel held that the 2018 regulations were rationally related to the legitimate government interests of aiding beleaguered taxi drivers and easing taxi congestion at the airport. The panel held that the City’s attempt to mitigate the fallout for those most affected by a shift in the taxi market was a permissible state purpose, even if some questioned its policy wisdom. The panel also rejected plaintiffs’ invocation of substantive due process to strike down the 2018 regulations.
The panel held that plaintiffs’ pleadings failed to plausibly allege that the 2018 regulations qualified as a project under CEQA. The panel further held that plaintiffs failed to plausibly allege that the 2018 regulations were governed by California Government Code section 11135, forbidding state actions that discriminate based on age. The panel remanded for the district court to consider granting leave to amend those claims in the event the taxi drivers could allege additional facts to support them.
Fulton v. City of Philadelphia (US 19-123 oral arg. Transcript 11/4/20) First Amendment Religion/Free Exercise Clause
1. Whether free exercise plaintiffs can only succeed by proving a particular type of discrimination claim-namely that the government would allow the same conduct by someone who held different religious views-as two circuits have held, or whether courts must consider other evidence that a law is not neutral and generally applicable, as six circuits have held?
2. Whether Employment Division v. Smith should be revisited?
3. Whether a government violates the First Amendment by conditioning a religious agency's ability to participate in the foster care system on taking actions and making statements that directly contradict the agency's religious beliefs?
Salinas v. Railroad Retirement Bd. (US 19-199 oral arg. transcript 11/2/20) Railroad Retirement Benefits
Whether, under section 5(f) of the Railroad Unemployment Insurance Act, 45 U.S.C. § 355(f), and section 8 of the Railroad Retirement Act, 45 U.S.C. § 231g, the Railroad Retirement Board's denial of a request to reopen a prior benefits determination is a "final decision" subject to judicial review.
Frlekin v. Apple (9th Cir. 15-17382 10/29/20) Wage-and-Hour Class Action/Exit Searches
The panel reversed the district court’s grant of summary judgment in favor of defendant Apple, Inc., in a wage-and-hour class action brought by employees who sought compensation under California law for time spent waiting for and undergoing exit searches.
Upon the panel’s certification of a question of California law, the California Supreme Court concluded that time spent on the employer’s premises waiting for, and undergoing, required exit searches of packages, bags, or personal technology devices voluntarily brought to work purely for personal convenience by employees was compensable as “hours worked” within the meaning of California Industrial Welfare Commission Wage Order 7.
The panel reversed the district court’s grant of Apple’s motion for summary judgment and remanded with instructions to (1) grant plaintiffs’ motion for summary judgment on the issue of whether time spent by class members waiting for and undergoing exit searches pursuant to Apple’s “Employee Package and Bag Searches” policy is compensable as “hours worked” under California law, and (2) determine the remedy to be afforded to individual class members.
Olson v. Lyft, Inc. (CA1/2 A156322 10/29/20) PAGA/Arbitration
Brandon Olson is a driver for Lyft, Inc. (Lyft), whose terms of service include an agreement he could not bring a Private Attorney General Act (PAGA) claim in court and that disputes with Lyft must be resolved by individual arbitration. Olson sued Lyft alleging six PAGA claims, which Lyft petitioned to compel to arbitration. The petition acknowledged that Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348 (Iskanian) precluded enforcement of PAGA waivers, but asserted that Iskanian was wrongly decided and in any event was no longer good law in light of the 2018 opinion of the United States Supreme Court in Epic Systems Corp. v. Lewis (2018) 138 S.Ct. 1612 (Epic Systems). The trial court denied the petition in a comprehensive order rejecting Lyft’s arguments.
Lyft appeals and, represented by two prominent law firms, provides us with 96 pages of briefing, beginning with an argument as to what we “must follow” from United States Supreme Court opinions, going on to reassert its unsuccessful arguments below. Lyft’s opening brief cites 12 United States Supreme Court cases, two cases from the Fifth Circuit Court of Appeals, and, indeed, a 2013 case from an Ohio District Court. Olson, represented by a well-known appellate boutique, provides 54 pages of his own, included within which is a scholarly exposition of California jurisprudence dealing with arbitration.
We need not engage in any similar discussion, as we reject Lyft’s position based on Correia v. NB Baker Electric, Inc. (2019) 32 Cal.App.5th 602 (Correia), an opinion that thoughtfully analyzed—and rejected—the identical argument Lyft makes here. Other post-Epic Systems cases have agreed, including the only two other published Court of Appeal decisions and numerous California federal cases. Accordingly, we affirm the order denying arbitration.
Deiro v. L.A. County Civil Service Commission (CA2/8 B296926 10/29/20) Service-Connected Retirement/Reinstatement of Relief
A deputy sheriff who has obtained and continues to receive service-connected disability retirement benefits is no longer an employee of the county. Consequently, his appeal to the Civil Service Commission of his discharge by the Los Angeles Sheriff’s Department, filed before his disability retirement, is no longer viable. The commission has no authority to order reinstatement or any other relief to a retired person whose future status as an employee is not at issue. The commission properly dismissed the retired deputy sheriff’s disciplinary appeal. We affirm the trial court’s denial of a writ of mandate.
Midwest Motor Supply Co. v. Super. Ct. (CA1/4 A160096 10/28/20) Wage and Hour/Forum Selection
Petitioner Midwest Motor Supply Co. (Midwest) seeks writ relief from a trial court order denying its motion to dismiss or stay a lawsuit filed by its former employee, Patrick Finch, on the basis of forum non conveniens. At issue is whether Finch may void a forum-selection clause in his employment agreement under Labor Code section 925, which renders such a clause in an employment contract voidable by an employee if the contract containing the clause was “entered into, modified, or extended on or after January 1, 2017.” (Lab. Code, § 925, subd. (f).) The trial court determined Finch could void the forum-selection clause under section 925 because Midwest modified the compensation provision of Finch’s employment agreement in 2017 and again in 2018. Midwest claims this was error, arguing that section 925 applies only when a forum-selection clause itself is modified on or after January 1, 2017. We disagree and shall deny Midwest’s writ petition.
Miles v. City of Los Angeles (CA2/1 B299765 10/28/20) Wage and Hour/Sanitation Workers
Industrial Welfare Commission Wage Order No. 9 obligates the City of Los Angeles to provide meal and rest breaks to persons it employs in the transportation industry.
In this class action, wastewater collection workers employed by the city to clean its sewers allege they worked in the transportation industry because the job required them to drive commercial vehicles needed to clean and pump out sewers and transport refuse to collection locations. They allege the city denied them meal and rest breaks mandated by Wage Order No. 9.
The city moved for summary judgment on the ground that its wastewater collection workers did not work in the transportation industry, but in the sanitation industry. The trial court agreed and granted summary judgment, finding no triable issue existed as to whether plaintiffs worked in the transportation industry.
We agree. For purposes of Industrial Welfare Commission (IWC) wage orders, a sanitation worker does not become part of the transportation industry simply because the waste collected must be transported to collection sites. Therefore, we affirm.
Chacon v. Union Pacific Railroad (CA2/2 B299031 10/26/20) Federal Employers’ Liability Act
Bernie Chacon appeals from a judgment against him following a successful motion for judgment on the pleadings by respondent Union Pacific Railroad Company (Union Pacific). Chacon brought this action against Union Pacific in March 2018 under the Federal Employers’ Liability Act (FELA), title 45 United States Code section 51 et seq. Chacon alleges that he developed a sarcoma as a result of his exposure to diesel fumes and other carcinogenic substances while working as a diesel mechanic for Union Pacific (and for a predecessor, Southern Pacific) for 31 years.
Chacon previously sued Union Pacific for damages arising from an unrelated 2007 accident. The parties settled that case in 2010. As part of the settlement, Chacon executed a release of all claims arising from his employment, including any claims concerning exposure to toxic chemicals or fumes. That release was the basis for Union Pacific’s successful motion for judgment on the pleadings in this case.
The issue in this appeal is whether Chacon could validly release future claims unrelated to the particular injury that was the subject of his prior lawsuit and settlement. Section 5 of FELA (45 U.S.C. § 55) invalidates any contractual provision “the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by this act [FELA].” The United States Supreme Court long ago concluded that this provision does not apply to a release provided in settlement of a specific liability claim. (See Callen v. Pennsylvania R. Co. (1948) 332 U.S. 625, 631 (Callen).) However, federal law, which governs here, is unsettled as to whether such a release may properly extend to known risks that have not yet caused any injury.
No California case has yet considered this issue. We conclude that the “bright line” rule described in Babbitt v. Norfolk & W. Ry. (6th Cir. 1997) 104 F.3d 89 (Babbitt) best conforms to the governing statute and to the United States Supreme Court opinions interpreting it. Under that rule, which we partially adopt (with a limitation on the scope of our decision explained below), a release of a FELA claim is valid only to the extent that it applies to a “bargained-for settlement of a known claim for a specific injury.” (Id. at p. 93.)
The release at issue here purported to extend to future claims unrelated to the particular injury that Chacon previously settled. To that extent it is invalid. We therefore reverse and remand for further proceedings on Chacon’s complaint.
Carroll v Commission on Teacher Credentialing (CA3 C083250 10/23/20) Whistleblower Retaliation/Attorney-Client Privilege
Plaintiff Kathleen Carroll sued her former employer, defendant California Commission on Teacher Credentialing (Commission), for terminating her employment in retaliation for her reporting Commission mismanagement to the state auditor. Prior to bringing this action, plaintiff appealed her termination to the State Personnel Board (Board), claiming the Commission fired her in retaliation for her whistleblower activities. She also filed a separate whistleblower retaliation complaint with the Board. The Board denied her claims.
In this action, plaintiff alleged the Commission’s termination of her employment violated the California Whistleblower Protection Act (Gov. Code, § 8547 et seq., the Act), Labor Code section 1102.5, and 42 U.S.C. section 1983 (section 1983). (Statutory section references that follow are to the Government Code unless stated otherwise.) After the Commission removed the matter to federal court, the district court dismissed the section 1983 claim and remanded the matter to state court. A jury found for plaintiff and awarded her substantial damages.
The Commission appeals. It contends (1) the district court’s judgment is res judicata as to this action; (2) the Board’s decisions collaterally estop this action; (3) the trial court abused its discretion in evidentiary matters by (a) permitting plaintiff’s counsel to question witnesses on and asking the jury to draw negative inferences from the Commission’s exercise of the attorney-client privilege, (b) denying the admission of the Board’s findings and decisions, (c) denying the admission of after-acquired evidence, and (d) denying the admission of evidence mitigating plaintiff’s emotional distress; and (4) the damages award was unlawful in numerous respects.
We reverse the judgment.
Although the district court’s judgment was not res judicata and the Board’s decisions did not collaterally estop this action, the trial court committed prejudicial error when it allowed plaintiff’s counsel to question witnesses on and ask the jury to draw negative inferences from the defendants’ exercise of the attorney-client privilege and did not timely instruct the jury with the mandatory curative instruction provided in Evidence Code section 913. Because we reverse on this ground, we do not address the Commission’s other claims of error.
Lares v. Los Angeles County Metropolitan etc. (CA2/4 B293850, filed 9/29/20, pub. ord. 10/23/20) CFRA Retaliation
This appeal involves the discipline provision in a collective bargaining agreement (CBA) between defendant Los Angeles County Metropolitan Transit Authority (MTA) and the union representing all operations employees of MTA. Under a section of that provision (the absenteeism rule), an employee is subject to progressive discipline, up to and including termination, if he or she has a certain number of absences. To avoid discipline, the employee may remove (or clear) an absence from his or her count by not having any absences for 60 consecutive calendar days. Certain kinds of absences, however, are expressly excluded from the absenteeism rule. One kind of excluded absence is an absence covered under the federal Family and Medical Leave Act (29 U.S.C. §§ 2601 et seq.) (FMLA) or the California Family Rights Act (Gov. Code, § 12945.2) (CFRA).
Plaintiff Alfonso Lares, a bus operator for MTA, was fired after he had eight non-excluded absences. There is no dispute that more than 60 calendar days had passed between absences on two occasions (i.e., two of the absences would have been cleared from his count), but Lares had taken leaves under the CFRA during each of those periods, and MTA did not count those days as part of the 60-day clearance period. The question presented in this appeal is: Does MTA’s failure to count the days an employee is on CFRA leave when calculating the 60-day clearance period violate the CFRA? We conclude, as did the trial court, it does not. Accordingly, we affirm the summary judgment in favor of MTA on Lares’s claims for retaliation based upon his use of CFRA leave, failure to prevent retaliation, and interference with CFRA leave.