The opinion of the court was delivered by: JONES
ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT, AND ORDER GRANTING AS MOOT PLAINTIFF'S MOTION TO STRIKE ALL OF DEFENDANT'S AFFIRMATIVE DEFENSES SAVE NUMBER NINETEEN, AND ORDER DENYING DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT
Javier Mora ("Plaintiff") filed this instant action alleging that Chem-tronics ("Defendant") violated the Family Medical Leave Act ("FMLA") 29 U.S.C. § 2601 et seq. and the California Family Rights Act ("CFRA") CAL. GOV'T CODE § 12945.2 et. seq. Now before this Court is Plaintiff's motion for partial summary judgment as to liability on his: 1) third cause of action - violations of public policy under CFRA and FMLA; 2) fourth cause of action - discrimination under CFRA; 3) fifth cause of action - retaliation under CFRA; 4) sixth cause of action - unlawful employment practice under CFRA; and 5) seventh cause of action - interference with the exercise of rights under FMLA. Additionally, Plaintiff moves to strike Defendant's third, eighth, ninth, tenth, eleventh, nineteenth, and twenty-first affirmative defenses.
In its opposition, Defendant filed a cross-motion for partial summary judgment on Plaintiff's CFRA based claims found in the fourth, fifth, sixth, and in part third and seventh causes of actions. This matter came before the Court on Tuesday, May 26, 1998, at 10:30 a.m. with counsel of record appearing for both parties. After hearing oral argument, the Court took the matter under submission. After considering all of the paper filed in this action as well as the arguments by counsel the Court DENIES Plaintiff's motion for summary judgment. The Court GRANTS Plaintiff's motion to strike Defendant's third, eight, ninth, tenth, eleventh, and twenty-first affirmative defense. Plaintiff's motion to strike Defendant's nineteenth affirmative defense is DENIED. Finally, the Court DENIES the Defendant's cross-motion for partial summary judgment on Plaintiff's CFRA claims.
A. Plaintiff's Son Javier, Jr.
In the 1980's Mr. Mora was awarded sole custody of his son, Javier Mora, Jr. ("Javier, Jr.") (Mora Decl. P 4). (Def.'s Response to Plaintiff's Undisputed Statement of Facts "DUSF" P 45).
From September 14, 1994, to October 3, 1994, Javier, Jr., was in the hospital. On September 22, 1994, Javier, Jr., was diagnosed with cryptococcal meningitis a rare blood disease contracted through exposure to pigeon droppings. At this time he was also tested for HIV and diagnosed with an advanced HIV infection and full blown AIDS. (Mora Decl. PP 5-6). Javier, Jr., passed away on March 23, 1998. (Mora Decl. P 20).
B. Plaintiff's Employment
During Javier, Jr.'s, terminal illness, Mr. Mora was employed by Chem-tronics. Chem-tronics hired Javier Mora in 1986, as a handfinisher and later promoted him to Senior Handfinisher responsible for bringing aerospace parts into compliance with specifications. Chem-tronics has an attendance policy with terms as follows: Employees are assessed one-half of an infraction each time they are tardy, and one infraction for each unauthorized absence. Disciplinary action is imposed when an employee accrues three infractions in one rolling month, five infractions in two rolling months, or ten infractions in one rolling year. A verbal warning may be issued for the first violation, a written warning for the second, a final written warning for the third and termination for any additional violations. (DUSF P 49). Employees must call within one-half hour of their start time if they will be late or absent. (DUSF P 50).
On September 26, 1995, Plaintiff was fired for incurring 10.5 infractions in the previous twelve months, beginning in October of 1994. (Plaintiff's Undisputed Statement of Material Facts "PUSF" P 45). Plaintiff contends that such termination was in violation of the FMLA and CFRA because at least three of these absences, on October 19, 1994, March 27, 1995, and September 26, 1995, were taken to care for his son. While Plaintiff contends most if not all of his absence or tardies other than these three days were also to care for his son, only these three days are specifically addressed by the parties with respect to his claims for wrongful termination.
Congress enacted the FMLA to allow workers flexibility in scheduling time to deal with family and medical problems and alleviate some of the tension created by the competing demands of work and family. As the legislative history indicates:
Private sector practices and government policies have failed to adequately respond to recent economic and social changes that have intensified the tensions between work and family. This failure continues to impose a heavy burden on families, employees, employers and the broader society. [The FMLA] provides a sensible response to the growing conflict between work and family by establishing a right to unpaid family and medical leave
Family and Medical Leave Act of 1993, S.Rep. No. 103-3, 103rd Cong., 2nd Sess. 4 (1993), reprinted in 1993 U.S. Code Cong. & Ad. News 3, 6 quoted in Stubl v. T.A. System, Inc., 984 F. Supp. 1075 (E.D. Mich. 1997).
One of the goals specifically delineated in the FMLA is to, "balance the demands of the workplace with the needs of families, to promote the stability and economic security of families, and to promote national interests in preserving family integrity." 29 U.S.C. § 2601(b)(1). The FMLA does not supplant employer-established sick leave and personal leave policies, rather it provides leave for uncommon and often stressful events such as caring for a child with a serious health condition. See, e.g., Price v. City of Fort Wayne, 117 F.3d 1022, 1023 (7th Cir. 1997) (summarizing the goals of the FMLA).
The FMLA places affirmative obligations on employers to: 1) notify employees of their rights and obligations under the Act, 29 U.S.C. § 2619; 2) provide up to twelve weeks of unpaid leave to employees who qualify and provide sufficient notice to their employers, 29 U.S.C. § 2612; 3) refrain from disciplining employees from taking leave covered by FMLA, 29 U.S.C. § 2615; 4) reinstate employees to the same or equivalent job after their leave, 29 U.S.C. § 2614(a); and 4) continue the employees' health care during leave their absence. 29 U.S.C. § 2614(c).
Additionally, the right to FMLA and CFRA leave includes the right to take absence on an intermittent basis. 29 U.S.C. § 2612(b)(1); 29 C.F.R. § 825.203(d); CAL. CODE REG. tit. 2, § 7297.3(c)(2), (e). Employees may take leave in any size increments and employers may account for the leave in the shortest period of time the payroll system uses to calculate absences. 29 C.F.R. § 825.203(d) (final regulations); CAL. CODE REG. tit 2, § 7297.3(c)(e). Intermittent leave is "medically necessary" if a family member's condition is intermittent, or if the employee is only needed to care of the family member on an intermittent basis. 29 C.F.R. § 825.116(c)(final regulations).
II. Legal Standard for Summary Judgment
Plaintiff brings this motion for partial summary judgment for liability on its third, fourth, fifth, sixth, and seventh causes of action, pursuant to FED. R. CIV. P. 56(b). The standards and procedures for granting partial summary judgment, also known as summary adjudication, are the same as those for summary judgment. Accordingly, the Court may grant summary adjudication upon a showing that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). The moving party bears the initial burden of demonstrating that it is entitled to summary adjudication. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157-61, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970). The burden then shifts to the nonmoving party to show that summary judgment is not appropriate. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). To make such a showing the nonmoving party must go beyond the pleadings to designate specific facts showing that there is a genuine issue for trial. Id.
A fact is "material" only if its resolution will affect the outcome of the lawsuit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). A dispute about a material fact is "genuine" only if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. To determine if there is a genuine dispute of material facts the Court shall consider all admissible affidavits and supplemental documents submitted in a motion for summary adjudication. See Connick Teachers Ins. and Annuity Ass'n, 784 F.2d 1018, 1020 (9th Cir.), cert. denied, 479 U.S. 822, 93 L. Ed. 2d 43, 107 S. Ct. 91 (1986). This includes discovery documents such as answers to deposition questions, and interrogatories. FED. R. CIV. P. 56(c). The Court, however, does not weigh evidence or make credibility determinations on a motion for summary adjudication. The inferences to be drawn from the underlying facts must be viewed in the light most favorable to the nonmoving party. Anderson, 477 U.S. at 255.
III. Defendant's Motion for Summary Judgment For Failure to Exhaust Administrative Remedies Must Fail
Defendant argues that Plaintiff cannot bring any claims for violations of CFRA because he failed to exhaust his administrative remedies. Defendant explains that the charge of discrimination that Plaintiff filed with the Department of Fair Employment and Housing ("DFEH") states that Mr. Mora believed he was fired because of his "family" and that he was told by his employer that it was "better for you and better for us because of son's illness." (Def.'s Mem. at 6). Despite the fact that there are specific boxes on the DFEH complaint for being denied "family leave" and for retaliation, they were not checked. Additionally, Defendant contends that while Plaintiff was asked to expand on his allegations in the body of the charge, all he said was that his termination was better for him and his employer because of his son's illness.
As a preliminary matter, the Court finds that Defendant's motion for summary judgment is untimely. The Court placed an April 6, 1998, deadline for filing any dispositive motions, yet Defendant raised this exhaustion issue in its opposition to Plaintiff's motion for partial summary judgment served on Plaintiff May 12, 1998, only five court days before the due date of its reply.
Nonetheless, Defendant's motion is unfounded and in the interest of efficiency the Court will dispense with it now. The parties agree that because CFRA is a part of Fair Employment and Housing Act ("FEHA") CAL. GOV'T. CODE § 12900 et. seq. that before bringing a CFRA claim in federal court Plaintiff must have exhausted his administrative remedies. Under California law, employees must exhaust administrative remedies provided by FEHA by filing an administrative complaint with DFEH, and obtain a notice of a right to sue. Okoli v. Lockheed Technical Operations Co., 36 Cal. App. 4th 1607, 1613 (1995) (summarizing the requirements of DFEH).
The federal counterpart of FEHA is Title VII of the Federal Civil Rights Act of 1964 ("Title VII") 42 U.S.C. § 2000 et seq., which requires exhaustion through the Equal Employment Opportunity Commission ("EEOC"). Since the anti-discrimination objectives and public policy of the two statutes are the same, California courts rely on federal decisions to interpret the statutory requirements of exhaustion. Sandhu v. Lockheed Missiles & Space Co., 26 Cal. App. 4th 846, 851 (1994).
As a general rule, since lay persons initiate the administrative process for resolving employment discrimination complaints, the procedural requirements for FEHA actions are "neither interpreted too technically nor applied too mechanically." Ong v. Cleland, 642 F.2d 316, 319 (9th Cir. 1981). The purpose of the administrative charge is to "provide the basis for the DFEH to investigate the aggrieved employee's claims of discrimination. It is not intended as a limiting device." Watson v. Department of Rehabilitation, 212 Cal. App. 3d 1271, 1288, 261 Cal. Rptr. 204 (1989). To determine whether the allegations of the complaint are beyond the scope of the charge, the district court should construe the charge with the "utmost liberality," mindful of the fact that these charges are made by lay persons "unschooled in the technicalities of formal pleading." Kaplan v. Int'l Alliance of Theatrical and Stage Employees et al., 525 F.2d 1354, 1359 (9th Cir. 1975). Claimants are not held to specify the charges with literary exactitude. Soldinger v. Northwest Airlines, Inc., 51 Cal. App. 4th 345, 382 (1997). For example:
The crucial element of a charge of discrimination is the factual statement contained therein. Everything else entered on the form is, in essence, a mere amplification of the factual allegations. The selection of the type of discrimination alleged, i.e., the selection of which box to check, is in reality nothing more than the attachment of a legal conclusion of the facts alleged.
Consequently, we decline to hold that the failure to place a check mark in the correct box is factual error. In the context of Title VII, no one-- not even the unschooled-- should be boxed out.
Sanchez v. Standard Brands Inc., 431 F.2d 455, 456 (5th Cir. 1970) (cited with approval in Chung v. Pomona Valley Community Hospital, 667 F.2d 788 (9th Cir. 1982)).
Specifically, a Plaintiff's subsequent federal complaint must raise claims "like or reasonably related to the allegations" of the administrative charge. Soldinger, 51 Cal. App. 4th at 382 (1997); Brown v. Puget Sound Electrical Apprenticeship & Training Trust, 732 F.2d 726, 729 (9th Cir. 1984) (citation omitted), cert. denied, 469 U.S. 1108, 83 L. Ed. 2d 778, 105 S. Ct. 784 (1985). If the new claims are not so related that they would not have been pursued by a reasonably thorough DFEH investigation of the original charge, then the district court must dismiss these claims to allow the DFEHA an opportunity to pursue them first. 732 F.2d at 730; see also Sosa v. Hiraoka, 920 F.2d 1451, 1456 (9th Cir. 1990) ("In short, the jurisdiction for Sosa's court action is not limited to the actual EEOC investigation, but can include the scope of an EEOC investigation which can reasonably be expected to grow out of the [initial charge].") (internal quotation marks and citations omitted).
Without question, the factual allegations in the First Amended Complaint can be deemed encompassed by a reasonable investigation of Plaintiff's administrative charge. Plaintiff's failure to check the box for the ultimate legal conclusion is not fatal. See, Sanchesz, 431 F.2d at 456. Moreover, given the theory of Plaintiff's case, any failure on his part to realize that his termination violated his rights to take family leave, was arguably a direct result of Defendant's failure to appraise him of his rights pursuant to the Act.
Additionally, the fact that Mr. Mora alleged that he was fired, and that such adverse action involved his son's illness, makes it reasonable to expect that the potential CFRA violations would arise out of the charge. All of Mr. Mora's claims in this current suit are based on the same operative facts that proceeded his termination, namely that he was not notified of or afforded his rights under the FMLA, and this prevented him from taking an excused leave for his son's illness. Arguably, if true all of the alleged unlawful acts in the First Amended Complaint contributed to Defendant's ultimate decision to terminate Plaintiff for missing too much work, even though some absences were to care for his son. Hence, as Plaintiff correctly states, "all of the factual allegations in the first amended complaint would have been encompassed by a reasonable investigation of plaintiff's administrative charge alleging he was fired because of his family and his son's illness." (Pl.'s Mem. at 5). To come to any other conclusion would require Plaintiff to specify charges with literary exactitude which courts specifically caution against. See, e.g., Soldinger, 51 Cal. App. 4th at 382.
The Court will waste very little time addressing the cases cited within Defendant's brief. Each Ninth Circuit or California case relied on by Defendant is distinguishable. These cases involve exhaustion of remedies for acts of discrimination that occurred after the Plaintiffs filed their administrative complaints, which is clearly not at issue here. Accordingly, Defendant's cross-motion for summary judgment is DENIED.
IV. Mr. Mora Was An Entitled Employee Under FMLA, and Provided Adequate but Not Necessarily Timely Notice to Defendant of the Need for Leave
This case is brought pursuant to the FMLA and corresponding state statute CFRA. The parties do not dispute that because FMLA and CFRA statutory schemes are so similar cases addressing FMLA are instructive in interpreting CFRA claims. See, e.g., Ely v. Wal*Mart, Inc., 875 F. Supp. 1422, 1425 n.6 (C.D. Cal. 1995). Thus, outlining the requirements of the FMLA will suffice for the CFRA claims. The majority of the time in this Order the Court will only cite to the FMLA with the understanding that the equivalent provision is found in CFRA, and any legal analysis of the FMLA applies equally to the CFRA claims.
Moreover, the Court will rely on the Code of Federal Regulations ("C.F.R."). Substantive agency regulations have the force of law if authorized by Congress and promulgated to implement a statute. See, e.g., United States v. Walter Dunlap & Sons, Inc., 800 F.2d 1232 (3rd Cir. 1986). Such regulations may supply the rule of decision in cases involving federal statutory claims. Id. In 29 U.S.C. § 2654, Congress specifically directed the Secretary of Labor to "prescribe such regulations as are necessary to carry out subchapter I of this chapter and subchapter." 29 U.S.C. § 2654. Hence, the C.F.R. will be cited to frequently as providing definitions and rules of law.
Plaintiff contends that the interim regulations should apply to the instant case. Defendant does not respond to this position. The Department's interim regulations took affect on August 5, 1993, and the final regulations on April 6, 1995. Victorelli v. Shadyside Hosp., 128 F.3d 184, 186 (3rd Cir. 1997). Plaintiff's claims for wrongful termination rests on three absences/tardies taken by Mr. Mora on October 19, 1994, March 27, 1995, and September 26, 1995. Mr. Mora was fired on October 2, 1995. Courts look to the timing of the course of events surrounding the absences to determine which regulations should apply. Manuel v. Westlake Polymers Corp., 66 F.3d 758, 761 n.2 (5th Cir. 1995); Sims v. Alameda-Contra Costa Transit District, 2 F. Supp. 2d 1253, 1998 U.S. Dist. LEXIS 6078, 1998 WL 208823 (N.D. Cal. 1998). The course of events surrounding two of these three absences happened before the final regulations took effect. One absence, that of September 26, 1995, occurred after the final regulation took effect. Although the final decision to terminate Mr. Mora did not occur until after the final regulations went into effect, given that the majority of the events took place before the final regulations the Court will use the interim regulations unless otherwise stated. There is, however, no substantial difference between the provisions in the interim and final regulations at issue in this case. Therefore, regardless of which regulations the Court applies the outcome will be the same.
Additionally, the Court notes that Defendant has filed a separate document objecting to numerous pieces of evidence cited by the Plaintiff, and in fact objects to the vast majority of the documents used to substantiate Plaintiff's statement of undisputed facts. Defendant's approach is to provide a laundry list of objections apparently without much thought or analysis. After reviewing these broad objections and those consistently made during depositions, this Court finds that they are without merit and unless otherwise stated the parties are to assume that any objections necessarily implied by the Court's reference to specific evidence are overruled.
Finally, the FMLA provides that an employer may not interfere with, restrain, or deny the exercise of or the attempt to exercise any right provided under the FMLA. 29 U.S.C. § 2615. An employer may not retaliate against an employee who opposes actions by the employer that are, or that the employee reasonably believes to be in violation of the FMLA. An employer is prohibited from discharging or otherwise discriminating against employees for opposing any practice made unlawful by the FMLA. 29 U.S.C. § 2615. Several of Plaintiff's causes of action necessarily depend on a finding that Mr. Mora was entitled to the protection afforded by the FMLA. Thus, Plaintiff's request for summary judgment requires an analysis of whether he was entitled to FMLA leave on the three dates in question. Plaintiff must show that: 1) he was an entitled employee, 2) his son had a serious medical condition which required his care, 3) he properly notified his employer of his need for leave.
B. Step 1: Plaintiff Was An Entitled Employee
When it enacted the FMLA Congress found that "the lack of employment policies to accommodate working parents can force individuals to choose between their job security and parenting." 29 U.S.C. § 2601(a)(3). The FMLA covers employees that have worked for the employer for at least 1,250 hours during the 12-month period immediately preceding the start of the leave, have worked for the employer for at least twelve months, and the company employs fifty or more people within seventy-five miles of the employee's job-site. 29 U.S.C. § 2611(2). Plaintiff worked full time for more than nine years at Chem-tronics', El Cajon location, where it employed more than 600 employees during 1994 and 1995. It is undisputed that Plaintiff was an eligible employee working for a covered employer within the meaning of FMLA and CFRA. (DUSF PP 1-3).
C. Step 2: Plaintiff's Son Had A Serious Medical Condition
The FMLA lists several situations for which an eligible employee is entitled to take twelve weeks of unpaid leave taken in a time block or on an intermittent basis. The Act includes leave to care for a child with a serious health condition. 29 U.S.C. § 2612(a)(1)(C). Accordingly, to satisfy step two of the analysis Plaintiff must show that Javier, Jr., had a serious heath condition that necessitated care.
1. Serious Medical Condition
As defined by the interim regulations a " serious health condition " means an illness, injury, impairment, or physical or mental condition that involves:
1) Any period of incapacity or treatment in connection with or consequent to inpatient care, such as an overnight stay in a hospital, or
2) Any period of incapacity requiring absence from school or other regular daily activities of more than three calendar days that also involves the continuing treatment of supervision of a health care provider, or
3) continuing treatment of a health care provider for a chronic or long-term health condition that is incurable or so serious that, if not treated, would likely result in a period of incapacity of more than three calendar days.
a) continuing treatment means one or more of the following:
1) the family member is treated two or more times for the injury or illness by a heath care provider; or
2) the family member is treated for the injury or illness by a health care provider on at least one occasion which results in a regiment of continuing treatment under the supervision of the health care provider, for example a course of medication or therapy; or
3) the family member is under the continuing treatment under the supervision of but not necessarily being actively treated by, a health care provider due to a serious long-term or chronic condition or disability that cannot be cured. Examples include individuals with Alzhemiers, persons who have suffered a severe stroke or persons in the terminal states of a disease who may not be receiving active medical treatment.
29 C.F.R. § 825.114(a)-(b)(3).
The final regulations are substantially similar, except they expand the meaning of continuing treatment to include a chronic serious heath condition which is defined as: 1) requiring periodic visits for treatment by a health care provider, and 2) continues over an extended period of time, and 3) may cause episodic rather than a continuing period of incapacity (e.g., asthma, diabetes, epilepsy). The final regulations further explain the meaning of a regiment of continuing treatment as including" a course of prescription medication (e.g., an antibiotic) or therapy requiring special equipment to resolve or alleviate the health condition (e.g., oxygen)." 29 C.F.R. § 825.114(b).
(a) Javier, Jr.'s, Medical Condition
On September 22, 1994, Javier, Jr., was diagnosed with cryptococcal meningitis which typically requires continuing treatment with the prescription drug fluconazole, which must be taken indefinitely, and repeated lumbar punctures to ensure the meningitis is under control. (DUSF PP 5-6). The source of a cryptococcal meningitis infection is often aerosolized spores contained in soil contaminated with bird droppings. There were pigeons roosting under the eaves where Javier, Jr., lived at the time of his diagnosis. (Dr. Dubey's Decl. P 4). Javier, Jr. was hospitalized for his condition from September 14, 1994, to October 3, 1994. (DUSF P 5). Since Javier, Jr.'s, form of meningitis was uncommon in patients with normal immunity he was tested for HIV. On September 22, 1994, he was diagnosed as HIV positive. A diagnosis of cryptococcal meningitis is an advanced HIV infection thus he also met the case definition for having AIDS. (DUSF P 7).
From the fall 1994, until his death in 1998, Javier, Jr., was treated with AZT, fluconazole, and Septra. Septra is an antibiotic used to prevent Pneumocystis Carinii pneumonia. His treatment later included the protease inhibitor Ritonavir and other anti-HIV drugs. (Dr. Dubey's Decl. P 7). Javier, Jr.'s, HIV infection caused ongoing, chronic symptoms such as diarrhea, fatigue, profound immunosuppression, linear growth failure, poor weight gain, delayed puberty, and frequent respiratory infection. Javier, Jr., also experienced a number of secondary infections including herpes, pneumonia, frequent viral respiratory infections, and communicating hydrocephalus, a complication of cryptococcal meningitis. In August of 1997, Javier, Jr., was also diagnosed with abdominal Hodgkin's disease, a form of lymphoma. These health conditions and related illnesses required frequent visits to his health care provider. (DUSF P 8). His HIV infection "made any illness, particularly an illness accompanied by a high fever, very serious and required continuing supervision by a health care provider." (Dr. Dubey's Decl. P 8). From September 14, 1994, to October 2, 1995, Javier, Jr., had a least 30 visits to health care providers to treat his HIV infection, and related illnesses. His illness was deemed chronic by his treating physician. (Dr. Dubey's Decl. P 10).
Following his hospitalization in September and October of 1994, Javier, Jr., required multiple lumbar punctures or spinal taps including one on October 19, 1994. In short, Javier Jr., developed communicating hydrocephalus, a complication of cryptococcal meningitis characterized by the inability of the brain to absorb spinal fluid. This condition required repeated spinal taps to drain off the spinal fluid and relieve the pressure on his brain. The increased pressure of spinal fluid on the brain could be life-threatening. (Dr. Dubey's Decl. P 11). Between September of 1994, and October of 1995, Javier, Jr., was periodically too ill to attend school or do other regular daily activities. (Dr. Dubey's Decl. P 12). Even when he was relatively stable Javier, Jr.'s, ongoing symptoms included diarrhea and fatigue. (Dr. Dubey's Decl. P 17).
(b) Javier Jr.'s Medical Condition Was Serious
The only argument Defendant puts forth to argue that Javier, Jr.'s condition does not met the requirements of FMLA is that because the United States Supreme Court granted certiorari to consider whether an HIV infection is a disability covered by the ADA, see Bragdon v. Abbott, 139 L. Ed. 2d 396, 118 S. Ct. 554 (1997), HIV alone may not be a serious health condition. (Def.'s Mem. at 17). On June 25, 1998, the Supreme Court held that a symptomatic HIV virus is a disability under the ADA. Bragdon v. Abbott, U.S. 118 S. Ct. 2196, 141 L. Ed. 2d 540, 1998 WL 332958 (1998). At any event, regardless of the Court's ruling, the ADA does not control the analysis of whether HIV is a serious heath condition under FMLA. Moreover, Javier, Jr., was not "just" HIV positive, he had full blown AIDS.
Without question, Javier, Jr.'s, condition easily satisfies one if not more of the requirements set forth in 29 C.F.R. § 825.114. First, Javier, Jr., was hospitalized for several weeks in 1994, and was diagnosed with HIV and AIDS, a condition that necessitates continued treatment of a health care provider. Second, Javier, Jr.'s, condition was chronic and long term in that there is no cure for HIV and the prognosis is death. Javier, Jr., was treated by health care providers at least thirty times in the relevant period and was placed on a regiment of continuing treatment, i.e., medication such as AZT, Fluconazole, and Septra. Finally, even if the Court found that Javier, Jr., was not necessarily being actively treated by a heath care provider, at all times he had a serious chronic condition that could not be cured. The C.F.R. cites Alzhemiers as an example of a serious chronic condition that qualifies under FMLA. HIV and AIDS, fatal diseases are analogous. Javier, Jr.'s, conditions also qualify as serious under the final regulations which include all of the examples of the interim regulations and more.
Mr. Mora must also show that his son's serious medical condition required care. Caring for a sick family member encompasses both physical and psychological care. 29 C.F.R. § 825.116. "The term . . . includes providing psychological comfort and reassurance which would be beneficial to a seriously ill child or parent receiving inpatient care." 29 C.F.R. § 825.116(a). The term includes situations where the employee may be needed to fill in for others who are caring for the family member, of if the employee is needed intermittently, such as when care responsibilities are shared with another member of the family or a third party. Id. If an employer wants verification that the employee is needed to care for another individual, the Act dictates that the employer is to look to the health care provider as the source of such information, and formally request certification. 29 U.S.C. § 2612.
The Defendant never requested such information, but now argues that Plaintiff was not needed to care for his son because his son's step-mother was a stay at home mom, and/or hospice care may have sufficed. Additionally, completely ignoring the mandates of the Act, Defendant objects to the Plaintiff relying on a declaration by the treating physician to demonstrate that Mr. Mora's psychological comfort and care were necessary to his young son who faced death on a daily basis. Plus, relying on an inapplicable provision of CFRA Defendant asserts that because Mr. Mora has not shown that his son was incapable of self-care due to a physical or mental disability, his presence was not needed. This Court finds that all of Defendant's arguments are without legal basis.
First, Defendant cites no case law to support its position that the FMLA prohibits a parent from taking FMLA leave if another individual could provide care. The term "needed to care for" is statutorily defined and does not require an employee to demonstrate that no other caretakers be available before obtaining leave. Under the FMLA an eligible employee "shall be entitled to . . . leave . . .in order to care for . . . a son [who] has a serious health condition." 29 U.S.C. § 2612(a)(1). One of the progressive aspects of this law is that it permits either parent to take FMLA leave to care for a sick child and thus recognizes and validates the importance of both fathers and mothers to the lives of children. "The right to take leave under FMLA applies equally to men and women," 29 C.F.R. § 825.112(b) (final regulations). While in the situation where both employees work for the same company, the company may limit the total leave for both to twelve weeks, it cannot dictate which parent should take leave to care for the child. 29 U.S.C. § 2612(f). And, as recognized by the C.F.R., an employee may take leave intermittently if care responsibilities are shared with another member of the family. Such is the case here, as Mr. Mora who did not assist in each daily task necessitated by the disease, was the pillar of emotional and psychological strength for his son. For example, when Bob Wind and Mike Corcoran of human resources asked Plaintiff why his wife could not care of his son Plaintiff explained that he was closer for his son, that his son wanted him, and that Mrs. Mora was not Javier, Jr.'s biological mother. (DUSF P 15). See also discussion of Dr. Dubey's Declaration infra at 16-17.
As Plaintiff points out, under the Defendant's interpretation of the law a father would not be entitled to be with his child as s/he died, if that child's mother, or any family member, was already present. Defendant's argument suggests that any care can and should be substituted for the care of a parent before FMLA leave is granted. This position is grossly inconsistent with the letter and spirit of the law. There is no basis in the FMLA for Defendant' position that because Javier, Jr.'s, stepmother may have not have been employed outside the home, or hospice care might have been available, that Mr. Mora was not entitled to take FMLA leave to support his dying child.
Second, through Dr. Dubey's Declaration, Plaintiff presented undisputed evidence that Mr. Mora provided psychological comfort and reassurance that was beneficial to a seriously ill child. Defendant objects to this evidence as an inadmissible opinion, lacking foundation, lacking personal knowledge, vague, conclusory, and irrelevant. As Plaintiff argues, all of these objection are without merit. Defendant's objections evade the explicit provisions of FMLA and CFRA. Both specifically state that a variety of health care providers, including medical doctors, are the individuals the employer is to turn to for certification that an employee is needed to provide physical care or psychological comfort for a child. 29 U.S.C. § 2612. See also 29 C.F.R. § 825.306(b)(5)(i) (child's health care provider may certify that "employee's presence to provide psychological comfort would be beneficial to the patient"); 2 CAL. CODE REG. § 7297.0(a), (a)(1)(d)(1) ("health care provider of the child" may certify that employee is needed to provide "psychological comfort as well as directly providing . . . the medical care"). Additionally, while there is no indication that Dr. Dubey is relying on anything other than observations of the interaction of his patient and father, physicians may testify to facts regarding diagnosis, treatment and care, even if the source of those facts may otherwise be hearsay. FED. R. EVID. 803(4). Without question, Dr. Dubey is the appropriate individual to attest that Mr. Mora was needed to care for his son.
Turning now to Dr. Dubey's declaration, he states in the beginning that he is a doctor of medicine licensed to practice by the State of California and was the primary physician for Javier, Mora, Jr. Dr. Dubey explains that Javier, Jr.'s, condition was characterized in part by an inability of the brain to absorb spinal fluid. The condition required spinal taps to drain the spinal fluid and relieve the pressure on his brain because such increased pressure was life-threatening. Dr. Dubey then explains that,
in the days prior to a spinal tap, Javier Jr. would suffer extremely painful headaches, often so painful that they would cause vomiting. Because he feared the spinal taps, Javier Jr. would attempt to hide his severe headaches and symptoms. Consequently, Javier, Jr. needed his father both to monitor his condition and to accompany him to provide psychological support during the lumbar puncture procedures.
(Dr. Dubey's Decl. P 3). Dr. Dubey also explained that:
It is apparent to me, based on my long history of treating Javier Jr., that he and his father, Javier Mora, had a very close relationship. Javier, Jr. wanted his father there for treatment and when he was ill. Javier Jr. experienced significant emotional distress as a result of his illness, and his father's psychological comfort was very important and beneficial to him. Mr. Mora provided psychological comfort and reassurance that was beneficial to his son when Javier Jr. received care both at home and in the hospital. Javier Mora, Sr. was also needed to provide physical care for his son when Javier Mora, Jr. received care at home. Often his father was the only one able to enforce the strict regimen of medication necessary to treat Javier Jr.'s HIV.
(Dr. Dubey's Decl. P 14).
Given this declaration provided by the treating physician, the Court is satisfied that there is no genuine dispute that Plaintiff was needed to care for his son within the meaning of FMLA. Defendant has pointed the Court to nothing that undermines or contradicts this declaration.
Finally, Defendant's contention that Mr. Mora had to show that his son was incapable of self-care because of physical and mental disabilities is completely erroneous. The clause Defendant cites to relates only to an adult dependent child, meaning an individual who is eighteen years old or older. CAL. CODE REG. tit. 2 § 7297.0(c). It is undisputed the Javier, Jr., was between fourteen and fifteen years old from September of 1994, to September of 1995. Therefore, this section is completely irrelevant. Hence, Plaintiff has shown that he was entitled to FMLA leave to care for his son who had a serious medical condition.
D. Step 3: Employee's Notice Requirements
The FMLA specifically states that employees who want to take leave that is covered by the Act and such leave is foreseeable :
(B) Shall provide the employer with no less than 30 days' notice, before the date the leave is to begin, of the employee's intention to take leave under such subparagraph, except that if the date of the treatment requires leave to be in less than 30 days the employee shall provide such notice as soon as is practicable.
29 U.S.C. § 2612 (e)(2)(B).
The Act does not specify the form of notice that is required for foreseeable leave, and interestingly the Act makes no reference to any notice requirement for unforeseeable leave. The parties agree that for the absences in question the leave was unforeseeable.
The legislative history of the FMLA also does not mention the content of the notice that an employee must give, nor mention whether the employee must expressly invoke the FMLA when taking leave See, e.g., Manuel v. Westlake Polymers Corporation, 66 F.3d 758, 761 (5th Cir. 1995) (summarizing the legislative history concerning notice). Both the interim and final regulations specify the notice that is required for leave. 29 C.F.R. §§ 825.302, 825.303. The interim regulations provided that with foreseeable leave the employee must give, "at least verbal notice sufficient to make the employer aware that the employee needs FMLA-qualifying leave, and the anticipated timing and duration of the leave." 29 C.F.R. § 825.302(c). The regulation goes on to state that the employee "need not expressly assert rights under the FMLA or even mention the FMLA but may only state that leave is needed . . . ." Id.
The interim regulations with respect to unforeseeable leave state that an employee, "should give notice to the employer of the need for FMLA leave as soon as practicable under the facts and circumstances of the particular case." 29 U.S.C. § 825.303(a). This section does not contain the disclaimer found in § 825.302(c) that the employee need not expressly invoke the FMLA's protection.
The Fifth Circuit has persuasively reasoned that the absence of the disclaimer in the interim regulations does not impose a requirement that the FMLA leave be expressly invoked by employees who could not foresee the need for their absence. Manuel, 66 F.3d at 761. As the Fifth Circuit explained, other provisions in the interim regulations suggest that the Secretary did not intend for employees taking unforeseeable leave to expressly invoke the FMLA to satisfy their notice obligation. As stated in § 825.208(a)(1): "As noted in section 825.302(c), an employee giving notice of the need for unpaid FMLA leave does not need to expressly assert rights under the Act or even mention the FMLA to meet their [sic] obligations to provide notice though they [sic] would need to state a qualifying reason for the needed leave. 29 C.F.R. § 825.208 (a)(1) quoted in Manuel, 66 F.3d at 761. This regulation provides that "in all circumstances, it is the employers' responsibility to designate leave, paid or unpaid, as FMLA qualifying, based on information provided by the employee." 29 C.F.R. § 825.208(a)(2). If the employer does not have sufficient information about the employee's reason for leave it is the employer's burden and responsibility to "inquire further to ascertain whether the paid leave is potentially FMLA-qualifying." Id. As well stated by the Fifth Circuit, "to require the employee to designate her leave as pursuant to the FMLA would render these provisions meaningless, if not directly contradict them." Id. at 761.
Finally, there is little doubt that Secretary intended that an employee does not have to specifically invoke his or her rights under the FMLA as the final regulations provide that "the employee need not expressly assert rights under the FMLA or even mention the FMLA but may only state that leave is needed. The employer will be expected to obtain any additional required information through informal means." 29 C.F.R. § 825.303(b). Moreover, there is no indication that by the addition of this provision in the final regulations that the Department of Labor intended to remove a preexisting duty when requesting leave, indeed the Department of Labor's explanation of the amendment to the interim regulations does not even discuss its addition. 60 Fed.Reg. 2221 (cited in Manuel, 66 F.3d at 762).
Accordingly, to establish the requisite notice Plaintiff must show that he gave his employer notice "as soon as practicable under the facts and circumstances of the particular case." 29 C.F.R. § 825.303(a). The notice must have been" sufficient to make the employer aware that the employee needs FMLA qualifying leave, and the anticipated timing and duration of the leave." 29 C.F.R. § 825.303. Mr. Mora need not show that he expressly asserted rights under FMLA or even mentioned FMLA, but that he stated leave was needed. Id. If further information was needed to determine whether the leave requested qualified under the FMLA, it was Chem-tronics responsibility to inquire further of Mr. Mora for that information. 29 C.F.R. § 825.302(c).
The employer should inquire further of the employee if it is necessary to have more information about whether FMLA leave is being sought by the employee, and obtain the necessary details of the leave to be taken. In the case of medical conditions, the employer may find it necessary to inquire further to determine if the leave is because of a serious ...