Filed 4/15/14 Ramirez v. Smurfit-Stone Container Corp. CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


NANCY RAMIREZ,                                                       B247935

         Plaintiff and Appellant,                                    (Los Angeles County
                                                                     Super. Ct. No. BC454454)
         v.

SMURFIT-STONE CONTAINER
CORPORATION,

         Defendant and Respondent.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Kevin C.
Brazile, Judge. Reversed and remanded.
         Alan Burton Newman and Alan Burton Newman for Plaintiff and Appellant.
         Constangy, Brooks & Smith and Jennifer Raphael Komsky for Defendant and
Respondent.
                                     _____________________________
       Nancy Ramirez sued her former employer, Smurfit-Stone Container Corporation,
for wrongful termination in violation of the Moore-Brown-Roberti Family Rights Act
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(CFRA) (Gov. Code, §§ 12945.1, 12945.2) and several other employment-related causes
of action. Ramirez appeals from the judgment entered on the CFRA claim after a bench
trial in which the court found Smurfit-Stone had properly terminated Ramirez when she
failed to return to work following an authorized period of medical leave. Because the
evidence at trial unequivocally established Smurfit-Stone terminated Ramirez because of
her failure to comply with its improper demand for documentation beyond that authorized
by the CFRA, we reverse.
                 FACTUAL AND PROCEDURAL BACKGROUND
       1. Ramirez’s Stress-related Medical Leave
       Smurfit-Stone is a global paperboard and paper-based packaging company
headquartered in Missouri. After working at Smurfit-Stone through an employment
agency, Ramirez was hired directly by the company in early 2010 as a weighmaster at its
Santa Fe Springs facility.
       During the first week of November 2010 Ramirez learned she was the subject of a
sexually offensive rumor being circulated by another employee, Jesse Hernandez. On
November 5, 2010 Ramirez spoke to her supervisor, Pauline McAteer, and filed a written
complaint for sexual harassment. Smurfit-Stone conducted an investigation and fired
Hernandez shortly thereafter. On November 8, 2010 Ramirez went on medical leave as a
result of the anxiety caused by the experience. She provided the company with off-work
notes covering the period November 8, 2010 through November 29, 2010 (and possibly
also through December 6 or 7, 2010) prepared by her physician at Kaiser Medical Center.
She was terminated as of December 16, 2010 without returning to work.
       The December 17, 2010 termination letter, signed by Stephanie Garvey, Area
Employee Relations Manager, explained the grounds for Ramirez’s discharge: “You
have been asked multiple times to provide certification information to Lauren Case,

1      Statutory references are to the Government Code unless otherwise indicated.


                                              2
Benefits Representative at Smurfit-Stone Container Corporation, regarding your on-going
treatments and your need to remain on Short Term Disability. You were sent a FINAL
notice dated November 30, 2010 notifying you that your Short-Term Disability Benefits
would be suspended on December 15, 2010 unless certification was provided. [¶] As a
result of your not providing documentation by the given deadline, we are terminating
your employment with Smurfit-Stone, effective December 16, 2010 and the Company
will take all measures to obtain the overpayment you have received since November 15,
2010.”
         2. The Complaint and Smurfit-Stone’s Answer and Affirmative Defenses
         On February 4, 2011 Ramirez filed a complaint asserting causes of action against
Smurfit-Stone for sexual harassment (§ 12940 et seq.), retaliation for making a sexual
harassment claim (§ 12940, subd. (h)) and denial of leave in violation of the CFRA
(§ 12945.2) and against Hernandez (identified only as “Jessie (last name unknown)”) for
sexual harassment. The complaint alleged Hernandez had repeatedly made offensive
statements to Ramirez including, “You’re sexy” and “I wish you would just date me,”
and falsely told others that Ramirez was having sex with him, which caused her anxiety
and an acute stress reaction. Ramirez also alleged she had been terminated while she was
on medical leave a few weeks after her attorney had sent Smurfit-Stone a letter
demanding compensation for sexual harassment.
         Smurfit-Stone’s answer to the unverified complaint contained a general denial and
27 affirmative defenses. The sixth separate and affirmative defense alleged any action
with respect to Ramirez’s employment was taken for legitimate, nondiscriminatory
reasons. The seventh separate and affirmative defense alleged Smurfit-Stone would have
made the same decision with respect to Ramirez’s employment even in the absence of
any alleged discriminatory intent. Smurfit-Stone also filed a cross-complaint seeking
reimbursement of the disability benefits it had paid to Ramirez.




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       3. The Trial
       In May 2012 the court granted Smurfit-Stone’s motion for summary adjudication
as to Ramirez’s claim for sexual harassment on the ground the harassment was not severe
or pervasive. Summary adjudication was denied as to Ramirez’s claims for retaliation for
                                                                    2
making a sexual harassment claim and for violation of the CFRA.
       In November 2012 a bench trial was held on Ramirez’s remaining claims. The
trial court heard live testimony from Ramirez and McAteer, received a declaration in lieu
of live testimony from Lauren Case and admitted the deposition testimony of Dr. Peter
Chong, the Kaiser physician who had provided Ramirez’s work status reports. Garvey’s
declaration in support of Smurfit-Stone’s motion for summary judgment or summary
adjudication, in the alternative, was also admitted into evidence. Smurfit-Stone
dismissed its cross-claim for reimbursement of disability payments after Ramirez
completed her case-in-chief.
       Ramirez testified she first learned there were rumors she was having sex with
Hernandez on Wednesday, November 3, 2010. On November 5, 2010 Ramirez spoke to
McAteer and filed a written complaint for sexual harassment. Ramirez was so distressed
by the rumor she went to see Dr. Chong at Kaiser. Dr. Chong gave Ramirez a “work
status report” stating, “This patient is placed off work from 11/8/2010 through
11/12/2010.” On Monday, November 8, 2010, Ramirez personally gave the report
to McAteer.
       Ramirez also testified she had several telephone conversations with Case, who
worked in the St. Louis, Missouri headquarters. In one of her conversations Ramirez
asked Case to send the medical certification form directly to Dr. Chong for him to
complete. Ramirez also advised Case in another conversation she needed her leave
extended by an additional month to a month and one-half because her condition had
worsened. Although Ramirez did not remember Case’s response to the extended leave
request, she testified Case did not tell her she could not have the additional leave.

2      Ramirez had earlier dismissed her claim against Hernandez for sexual harassment.

                                              4
        In her trial declaration Case stated she explained to Ramirez by telephone on
November 9, 2010 the benefits available during her leave of absence and the information
required to approve the leave. At Ramirez’s request Case faxed a health care provider
certification form to Dr. Chong’s office, but Case informed Ramirez it was her
responsibility to ensure the completed form was returned to Smurfit-Stone by
November 27, 2010. The form, prepared by the United States Department of Labor
entitled “Certification of Health Care Provider for Employee’s Serious Health Condition
(Family and Medical Leave Act),” sought information including “relevant medical facts,
if any, related to the condition for which the employee seeks leave (such medical facts
may include symptoms, diagnosis, or any regimen of continuing treatment such as the use
of specialized equipment)” and whether any medication had been prescribed. In a
November 12, 2010 transmittal letter from Case to Ramirez, Smurfit-Stone advised
Ramirez, “Your length of service entitles you to 26 weeks of Short Term Disability leave,
with 4 weeks paid at 100%, and an additional 22 week(s) paid at 60%. You are currently
not eligible for leave under the FMLA [(Family Medical Leave Act)] until 3/15/2011, as
you have not completed the required 1 year of service.” The letter did not address
Ramirez’s rights under the CFRA.
        Ramirez testified Dr. Chong completed a second work status report using the same
form as the first one, not the form required by Smurfit-Stone, placing her off work from
November 15, 2010 through November 29, 2010; she believed his office faxed the report
to Smurfit-Stone. She also recalled a third work status report. Although Ramirez
initially said it extended her leave for an additional two weeks, she acknowledged she
had testified at her deposition that it extended her leave for only one more week (through
December 6 or 7, 2010). Ramirez further testified, notwithstanding considerable effort to
find a full-time job after termination, she had only earned about $2,000 from part-time
work.
        Dr. Chong testified his records reflected he had spoken to Ramirez on the
telephone before he issued the second work status report, not in person as Ramirez
recalled, and she had requested the leave be extended until December 13, 2010.

                                             5
Dr. Chong, however, extended Ramirez’s leave to only Monday, November 29, 2010,
because she was scheduled to see a psychiatrist that day. Dr. Chong told Ramirez it was
important for her to follow up with the psychiatrist “[s]o the further extension could come
up from the psychiatric department.” Ramirez acknowledged Dr. Chong advised her to
see a psychiatrist, but explained she cancelled the appointment because she could not
afford to pay the additional fee that was required even though she had medical insurance.
       In a December 1, 2010 letter Case informed Ramirez the due date for the initial
certification had expired. The letter stated, “This is your final notice to have your
treating physician complete and return the medical certification form to me by
December 15, 2010. Unless complete & sufficient documentation is received from your
physician on or before the specified due date, the Company will suspend your Short-
Term Disability Benefits effective December 16, 2010. [¶] Failure to comply with the
Family & Medical Leave Act requirements and Company policy may result in
disciplinary action, up to and including termination resulting in the repayment of all Short
Term Disability Benefit earnings received from November 8, 2010 to date.”
       In her trial declaration Case explained she sent Dr. Chong’s office a second
request for medical certification after Ramirez told her Dr. Chong’s office had not
received the initial paperwork. Nevertheless, she stated, “As of December 1, 2010 I still
had not heard from or received anything from Ms. Ramirez or her physician. . . . [¶] As
of December 16, 2010 I had not received anything from Ms. Ramirez, her physician, or
anyone purporting to act on Ms. Ramirez’s behalf. I was not made aware of anyone from
my office having received anything from Ms. Ramirez or anyone purporting to act on
Ms. Ramirez’s behalf, including, but not limited to her attorney.” Case also explained,
“When Ms. Ramirez failed to comply with the requirements set forth to establish an
approved leave of absence, her absences became ‘unexcused’ and fell under the
adherence to the company’s attendance policy. My recollection is that Smurfit[-Stone]’s
attendance policy quantifies a period of absences for up to 3 days of ‘no call no show’ as
job abandonment.” Case’s declaration did not address Ramirez’s testimony that she had
requested an additional month to a month and one-half leave.

                                              6
      Although Case’s declaration stated she had not seen any documents justifying any
portion of Ramirez’s medical leave, McAteer testified she had sent the work status
reports prepared by Dr. Chong to Smurfit-Stone’s human resources department.
McAteer, who had left the company by the time of trial, did not know why the work
status reports were not produced by Smurfit-Stone during discovery.
      As discussed, in a December 17, 2010 letter from Garvey, Ramirez was informed
she had been terminated effective December 16, 2010 because of her failure to provide
documentation by the specified deadline. In her declaration admitted into evidence,
Garvey stated, “I terminated Ms. Ramirez’s employment solely on the basis of her failure
to provide the documentation supporting her disability leave.” At trial Smurfit-Stone
essentially conceded the reports from Dr. Chong excusing Ramirez from work through
November 29, 2010 were sufficient under the CFRA and argued Ramirez was lawfully
terminated because there was no documentation justifying leave after that date.
      4. The Trial Court Decision
      After closing arguments the trial court found in favor of Smurfit-Stone on
Ramirez’s retaliation claim; Ramirez does not contest that ruling. The court took
Ramirez’s claim for violation of the CFRA under submission and requested additional
briefing. The court subsequently found in favor of Smurfit-Stone on the claim:
“[Ramirez] failed to prove by a preponderance of evidence that she provided medication
document [sic] to [Smurfit-Stone] to support her disability leave beyond December 7,
2010. Since any medical leave of [Ramirez] beyond December 7, 2010, was not pursuant
to authorized or approved medical leave her termination of employment of December 17,
2010 was appropriate.”
                                     DISCUSSION
      1. Standard of Review
      On appeal we review the trial court’s factual findings for substantial evidence
(Hamilton Court, LLC v. East Olympic. L.P. (2013) 215 Cal.App.4th 501, 505; Kuhn v.
Department of General Services (1994) 22 Cal.App.4th 1627, 1633) and its conclusions
of law de novo (Crocker National Bank v. City and County of San Francisco (1989)

                                            7
49 Cal.3d 881, 888; Palm Property Investments, LLC v. Yadegar (2011) 194 Cal.App.4th
1419, 1425-1426; ASP Properties Group, L.P. v. Fard, Inc. (2005) 133 Cal.App.4th
1257, 1266).
       2. Overview of the CFRA
       The CFRA, the state corollary of the Family and Medical Leave Act of 1993
(29 U.S.C. §§ 2601-2654 (FMLA)), “is intended to give employees an opportunity to
take leave from work for certain personal or family medical reasons without jeopardizing
job security.” (Nelson v. United Technologies (1999) 74 Cal.App.4th 597, 606; accord,
Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 864, 878 (Faust).) The
CFRA requires an employer of 50 or more persons to grant a request by a qualified
employee to take up to 12 weeks in any 12-month period for family care or medical
leave. (§ 12945.2, subds. (a), (c)(2)(A); see Faust, at p. 878.) Grounds for leave include
family needs such as the birth or adoption of a child, serious illness of a family member
and “an employee’s own serious health condition” when that condition “makes the
employee unable to perform the functions of the position of that employee. . . .”
(§ 12945.2, subd. (c)(3)(C).) The CFRA defines a “[s]erious health condition” as “an
illness, injury, impairment, or physical or mental condition that involves either of the
following: [¶] (A) Inpatient care in a hospital, hospice, or residential health care
facility. [¶] (B) Continuing treatment or continuing supervision by a health care
provider.” (§ 12945.2, subd. (c)(8).)
       An employer may require an employee’s request for leave be supported by a
certification from the employee’s health care provider. (§ 12945.2, subd. (k)(1).) The
requested certificate “shall be sufficient if it includes all of the following: [¶] (A) The
date on which the serious health condition commenced. [¶] (B) The probable duration
of the condition. [¶] (C) A statement that, due to the serious health condition, the
employee is unable to perform the function of his or her position.” (Ibid.; see Lonicki v.
Sutter Health Central (2008) 43 Cal.4th 201, 211 [§ 12945.2, subd. (k)(1), “limits the
type of information that an employer can require an employee to provide in a
certification”].) The information an employer may request under the CFRA is more

                                              8
limited than the information an employer may request under FMLA. (See 29 C.F.R.
§ 825.306 (eff. Jan. 16, 2009 to Mar. 7, 2013) [when leave is taken because of
employee’s own serious health condition, employer may require medical facts including
“symptoms, diagnosis, hospitalization, doctor visits” and “whether any medication has
been prescribed”].)
       It is an unlawful employment practice for an employer “to interfere with, restrain,
or deny the exercise of, or the attempt to exercise, any right” provided by the CFRA.
(§ 12945.2, subd. (t).) It is also an unlawful employment practice to discharge or
discriminate against any individual because of his or her exercise of the right to family
care or medical leave as provided by the CFRA. (§ 12945.2, subd. (l)(1).)
       3. The Trial Court Erred in Concluding Smurfit-Stone Did Not Violate the CFRA
       As discussed, the evidence at trial, all essentially undisputed, established that
Ramirez left work on November 5, 2010 because she was upset by sexually offensive
rumors being circulated by a coworker; Ramirez requested medical leave for
stress/anxiety initially for one week, supported by a work status report from Dr. Chong,
and then in a telephone conversation with Case for an additional month or month and
one-half (that is, extending into mid-December); Smurfit-Stone requested that Ramirez
provide documentation in support of her request for medical leave using a form designed
for the FMLA, which required information that exceeded the requirements of the CFRA;
Ramirez submitted two work status reports prepared by Dr. Chong documenting her need
for a medical leave through the period ending November 29, 2010 (and perhaps through
December 6 or 7, 2010, as found by the trial court) that complied with the CFRA
certification requirements; although McAteer received two work status reports from
Dr. Chong, apparently neither Garvey nor Case was aware the reports had been provided;
and the December 17, 2010 termination letter signed by Garvey and Garvey’s declaration
testimony both stated the sole reason Ramirez was being discharged was her failure to
provide any of the requested documentation.
       Notwithstanding that Garvey and Case both testified (and the December 17, 2010
letter confirmed) Ramirez was terminated because she had not provided any

                                              9
documentation supporting her request for medical leave, Smurfit-Stone argued at trial
Ramirez had been discharged because she failed to return to work after the expiration of
her leave of absence. The trial court erred in accepting that post hoc justification for
Ramirez’s discharge and entering a judgment in favor of Smurfit-Stone.
       First, Ramirez’s unrefuted testimony she advised Case in a telephone conversation
sometime during the first two weeks of November that she needed an additional month or
month and one-half of medical leave because her stress/anxiety condition had worsened
was sufficient to invoke her rights under the CFRA for the period of leave requested:
“An employee shall provide at least verbal notice sufficient to make the employer aware
that the employee needs CFRA-qualifying leave, and the anticipated timing and duration
of the leave. The employee need not expressly assert rights under CFRA or FMLA, or
even mention CFRA or FMLA, to meet the notice requirement; however, the employee
must state the reason the leave is needed . . . .” (Cal. Code Regs., tit. 2, former § 7297.4,
subd. (a)(1), renumbered as § 11091, subd. (a)(1), effective Oct. 3, 2013.) It was then
Smurfit-Stone’s responsibility to inquire further if it believed more information was
necessary. (Ibid.)
       Second, to the extent Smurfit-Stone conditioned Ramirez’s exercise of her right to
medical leave under the CFRA upon the provision of personal information beyond that
authorized by section 12945.2, subdivision (k)(1), or then terminated her employment for
exercising her right to medical leave without providing that information—as it clearly
did, at least in part—it engaged in an unlawful employment practice as defined in section
12945.2, subdivisions (l) and (t). (See Lonicki v. Sutter Health Central, supra, 43 Cal.4th
at p. 211 [employer may not deny an employee’s request for medical leave for failure to
provide information beyond that deemed sufficient by § 12945.2, subd. (k)(1); “[i]f an
employer fires an employee who has given the employer a facially valid certification in
support of a request for medical leave and the employee then sues for violation of the
CFRA, the employer may not defend the suit by asserting that the employee, when
requesting leave, provided insufficient evidence that the employee fell within the
provisions of the CFRA”]; see also Avila v. Continental Airlines, Inc. (2008)

                                             10
165 Cal.App.4th 1237, 1259-1260 [under the CFRA employer bears the burden of
determining whether an employee’s leave is protected; “[o]nce an employee has
submitted a request for leave under [the] CFRA, the employer is charged with knowledge
that the employee’s absences pursuant to the leave request are protected, and may not
thereafter take adverse employment action against the employee based upon—that is,
‘because of’—those protected absences”]; Dudley v. Department of Transportation
(2001) 90 Cal.App.4th 255, 264 [gravamen of a claim under § 12945.2, subd. (l), is “the
employer’s adverse action against the employee in retaliation for the employee’s exercise
of her right to CFRA leave”].) There simply was no evidentiary support for Smurfit-
Stone’s trial position that Ramirez was, in fact, discharged solely because she did not
return to work after November 29, 2010 (or December 6 or 7, 2010), rather than because
she failed to submit an adequate health-care-provider certification for any portion of her
absence from work after November 5, 2010. (See Mardirossian & Associates, Inc. v.
Ersoff (2007) 153 Cal.App.4th 257, 273, fn. 7 [substantial evidence requires evidence of
“‘“ponderable legal significance, . . . reasonable in nature, credible, and of solid
value”’”].)
                                      DISPOSITION
       The judgment is reversed, and the matter remanded for a new trial on the issue of
damages. Ramirez is to recover her costs on appeal.


                                                   PERLUSS, P. J.

       We concur:


                     ZELON, J.


                     SEGAL, J. *

*       Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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