California Court of Appeals, Second District, Third Division
APPEAL from a judgment and order of the Superior Court of Los Angeles County, No. BC479507 James C. Chalfant, Judge.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
John F. Krattli, County Counsel, Joyce Aiello, Assistant County Counsel, Julie A. Dixon, Deputy County Counsel; Hausman & Sosa, Jeffrey M. Hausman and Larry D. Stratton for Respondents and Appellants.
Green & Shinee and Audra C. Call for Plaintiff and Respondent.
CROSKEY, Acting P. J.
When an employee takes leave under the Family and Medical Leave Act of 1993 (FMLA) (29 U.S.C. § 2601 et seq.), the employee is entitled to be restored to employment upon certification from the employee’s health care provider that the employee is able to resume work.
The employer is not permitted to seek a second opinion regarding the employee’s fitness for work prior to restoring the employee to employment. The question presented by the instant case is whether, if the employer is not satisfied with the employee’s health care provider’s certification, the employer may restore the employee to work, but then seek its own evaluation of the employee’s fitness for duty at its own expense. We conclude that it may. We therefore reverse the judgment in favor of the employee in the instant matter.
FACTUAL AND PROCEDURAL BACKGROUND
1. Plaintiff’s Employment
Plaintiff Susan White is employed as a Senior District Attorney Investigator with the Los Angeles County District Attorney’s Office (DA). The essential functions of her job include personally serving arrest warrants, making arrests, interrogating suspects, and booking prisoners. The position requires peace officer status under Government Code section 1031.
2. Plaintiff’s Depression
There is no real dispute that, beginning in late 2009, around the time of the death of her brother-in-law, White began experiencing emotional difficulties. She was observed acting erratically in the workplace, with very high emotional highs and very low lows.
In January 2010, White’s supervisor, Terisa Carver, advised her own supervisor of the situation. Carver believed that, while none of the incidents alone established a problem, taken together, the incidents might be a precursor to a more serious issue. Carver also believed that White’s behavior was a distraction to her co workers, to the point where she chose to relocate White’s office-mate.
On April 15, 2010, White was part of a team of investigators executing a search warrant. White and another investigator were guarding the perimeter of the location when they learned the entry team was unable to breach the
front door. It was communicated that the team needed to locate an alternate entry point. Then, without any warning to the rest of the team, White jumped over a wrought iron fence and said, “ ‘Who’s coming with me?’ ” This was a poor tactical decision which jeopardized White’s own safety, as she placed herself in a position of potential cross fire from team members who were not aware of her change in position.
That same day, other investigators joked that White had been on medication for some time; they believed she might have psychological issues affecting her stability. Carver contacted White’s prior supervisor; he told her that White had recently told him that she was having problems regulating her medications.
On April 21, 2010, White asked for the afternoon off, stating that her medicine was making her “ ‘feel stupid.’ ” The next day, Carver wrote a memo to Chief Rivetti documenting her concerns.
White had a meeting with some of her supervisors on May 6, 2010. After the meeting, her emotional behavior appeared to improve. However, Carver eventually came to believe that White was simply doing a better job of hiding her problems. White was observed crying, anxious, and having mood swings.
On June 16, 2010, tactical training was conducted. During the training White “did not make good tactical decisions, rushed movement, and appeared nervous.” At one point, she tripped over a fellow investigator who was moving forward, and she was “continuously pointing her fake weapon at other team members.” Carver privately spoke to White regarding her tactics and paying attention to directions.
On June 17, 2010, a search warrant was executed for which White was the investigating officer. Two other investigators planned to attempt a low key contact with the suspect, and the search team was to stand by and provide assistance only if requested. White was not part of the tactical team and was instructed to wait away from the location until she was notified. Instead, she suddenly left the staging area. While the other investigators contacted the suspect as planned, White drove down the street at a high rate of speed, used her vehicle’s siren, parked in the middle of the street, and left her vehicle to back up the other investigators. During debriefing, when asked why she did not follow the plan, White stated that she activated the siren accidentally but her training had “ ‘kicked in’ ” with respect to backing up the other officers. She stated that she had seen them with their guns drawn, a fact the other officers “emphatically denied.” White was reminded that she needed to exercise discipline in following the plan. She appeared agitated and confused by the criticism.
On July 13, 2010, Carver met with White. Carver told White that she still had concerns regarding White’s judgment in the last warrant, but advised White that she was making progress. Carver told White that it would take time to earn the trust and confidence of her peers, and that they were still somewhat skeptical about wanting to work with her. White said that her peers had valid reasons for their distrust. She said she knew she had extreme highs and described herself as a “ ‘whack job.’ ”
In February 2011, White requested a private meeting with Carver. In the meeting, she began crying and said she was worried about her family. White stated that her father told her that he was interested in buying a gun for protection. White stated that she knew that if her father purchased a gun, he would kill White’s mother and himself. She admitted that no threats were made by her father and he never made any comments related to killing himself or White’s mother. White believed, however, that this was his plan, as he was getting older, and if he wanted to purchase a gun, it must be for violence. She took time off for the rest of the day, stating she needed to leave early to take care of family obligations. When Carver asked White about the situation the following week, she looked confused and downplayed it.
In February 2011, White was required to testify in a case regarding an investigation with which she had assisted while previously employed by the Cypress Police Department (the Kim case). After her initial testimony, White told Carver about it, and began to cry, saying that a defense attorney was trying to attack her on the stand. White related to Carver that, when the attorney asked her why the testimony of some witnesses differed from hers, she angrily yelled at the attorney, “ ‘They are liars!’ ” ...