Employee's Family Leave Claim Fails Where Employee Is on Leave Longer than Twelve Weeks, and Presented Insufficient Evidence

February 16, 2012


Ms. Rogers was a long term employee of Los Angeles County, serving as a personnel officer in the Executive Office, when she took a nineteen week medical leave of absence. When she returned to work, Los Angeles County notified her that she had been transferred to another position in a different department. Ms. Rogers considered this transfer to be a demotion, so she retired and filed a lawsuit alleging that her rights were violated under the California Family Rights Act (CFRA), California's version of the federal Family & Medical Leave Act (FMLA). Ms. Rogers alleged a claim for interference, noting that the County interfered with her right to take a medical leave by transferring her to a position that was not comparable to the position she held when she went out on her leave. She also claimed retaliation, arguing that the County retaliated against her for exercising her right to take a leave protected by CFRA. Rogers v. County of Los Angeles (2011) 198 Cal.App.4th 480.

The case went to jury, and the jury found in Ms. Rogers's favor on both claims, awarding her $356,000. However, that wasn't the end of the story. Unfortunately for Ms. Rogers, the Court of Appeal reversed the jury's award on both claims. First, the Court of Appeal found that, in order for Ms. Rogers to bring a claim for interference, in which she claimed that she should have been reinstated to the same or a comparable position, she needed to have taken a leave of absence protected by CFRA. Since CFRA provides for leaves of 12 weeks or less, simply put, her 19 week leave of absence left her flat out of luck on her claim for reinstatement or interference.

Then the Court of Appeal addressed Ms. Rogers's second claim, for retaliation. It held that the employer presented evidence that the transfer was part of an overall plan to reorganize the Executive Office. When the employer made the decision to transfer Ms. Rogers, she had only been on a leave of absence for one month, and there was no evidence that the decision maker was aware that the leave would be for an extended period of time. Although the trial court noted that the jury may have doubted the employer's motive, the Court of Appeal found that all the evidence was undisputed and that this doubt was not enough. In other words, the Court of Appeal voted for the employer on this issue based upon a lack of evidence.

This case should serve as a cautionary tale for employees who take family or medical leaves. First, if it is at all possible medically, return to work within the time frame protected under the statute, i.e. for CFRA or FMLA, twelve weeks. Second, with a CFRA retaliation claim - just like other retaliation claims - the more evidence of discriminatory motive or pretext there is, the more likely the retaliation claim will survive. And, remember, as with any other case, the trial judge or the appellate court, whether it should or not, may come in and act as the thirteenth juror and take away an employee's victory.

Jody LeWitter
February 16, 2012