• Finley Employment Law

Bareno v. San Diego Community College District

Updated: Apr 29


In Bareno v. San Diego Community College District, 7 Cal.App.5th 546 (2017), the California Court of Appeal held in favor of an employee, finding that under the California Family Rights Act (the “CFRA”), an employer is obligated to inquire of an employee if the employer requires additional information from the employee about the employee’s request for CFRA leave. The salient facts of Bareno are set forth below.



In 1999, Plaintiff Leticia Bareno began working as a Student Services Assistant for San Diego Miramar College (the “College”). In 2000, she was promoted to Senior Secretary.

In January 2013, Dean Lynne Ornelas, Bareno’s supervisor, recommended that Bareno be suspended for performance issues. In February 2013, the College accordingly disciplined Bareno with a three-day suspension from work without pay. The suspension was set to run from February 20 through February 22, 2013.

According to Bareno, on Monday, February 25, 2013, she called Ornelas at 4:30 a.m., informing Ornelas that she would not be at work because she was sick, depressed, stressed, and had to go to the hospital. Later that evening, Bareno sent an email to Ornelas, stating that she would be out on medical leave through March 1, 2013, and would contact Ornelas “sometime on Friday[, March 1] to inform you of the date of my return to work.”

The following day, February 26, 2013, Ornelas responded to Bareno’s email (and copied the College’s Vice-President, Jerry Buckley) informing Bareno that Bareno must provide a written doctor’s statement before she can return to work. The next day (February 27, 2013), Bareno sent an email to Ornelas, attaching a copy of a “Work Status Report” from Kaiser Permanente (“Kaiser”) indicating that Bareno had a medical need to take leave from work from February 25 through March 1, 2013. The document identified the date of onset of the condition as February 25, 2013 and indicated that Bareno’s next appointment with a medical provider would be on March 1, 2013.

On Friday, March 1, 2013, Bareno sent an email to Buckley, indicating that she was out on medical leave and would “notify all concern[ed] of [her] return.” That same day, Bareno also sent an email to Ornelas, attaching a copy of a new “Work Status Report” from Kaiser indicating that Bareno required leave from work for a medical reason from March 1 through March 8, 2013. The “Work Status Report” also identified the date of onset of the condition as February 25, 2013. This “Work Status Report” was in the same format as, and included similar information to, the “Work Status Report” that Bareno had submitted to Ornelas on February 27, 2013.

According to Ornelas, she did not receive Bareno’s March 1, 2013 email attaching this second “Work Status Report.”

Bareno did not come to work on Monday, March 4, 2013. That same day, Ornelas informed the College’s HR office of Bareno’s absence and forwarded Bareno’s February 25, 2013 medical request. On March 6, 2013, Robin Lewison sent an email to Ornelas and Buckley, informing them that five consecutive days of unauthorized absences constituted job abandonment under Bareno’s collective bargaining agreement.

Bareno did not report to work for the rest of the week of March 4, 2013 or call anyone at the College during those five days.

On Friday, March 8, 2013, Will Surbrook, vice-chancellor of Human Resources, sent a letter to Bareno via certified mail to inform her that her unauthorized absences constituted a voluntary resignation, effective March 11, 2013. The letter indicated that Bareno had a right to request a meeting with her supervisor, within five days of the proof of mailing of the notice, if she believed the proposed action was incorrect. The record does not contain information as to when the letter was delivered to Bareno’s home address.

The following day, Saturday, March 9, 2013, Bareno sent an email to Ornelas, attaching another “Work Status Report” from Kaiser that authorized her leave from work for the period between March 8 and March 15, 2013. The “Work Status Report” identified February 25, 2013, as the date of onset of Bareno’s condition. In this email, Bareno also informed Ornelas that she intended to return to work on April 8, 2013.

On Monday, March 18, 2013, Bareno faxed to Ornelas a form seeking a formal leave of absence and the Kaiser “Work Status Reports” indicating the need for leave between March 8 and March 19, 2013. That same day, Bareno, who had been in Riverside County during these events, traveled to San Diego to retrieve mail from her post office box. On this date, Bareno finally received Surbrook’s March 8, 2013 letter informing her of her “voluntary resignation.” Bareno immediately telephoned Surbrook, who told Bareno that she could no longer talk to Bareno because Bareno was no longer an employee.

That day, Surbrook sent Bareno another letter via certified mail and “HOME DELIVERY,” in which he referenced the College’s March 8, 2013 letter informing Bareno that her five days of “unauthorized absence[s] constituted abandonment of position.” Surbrook’s letter also stated that Bareno had possessed the right to meet with her supervisor if she had made the request within five working days of proof of the mailing of the prior notice, but that since she had failed to make such a request, her “voluntary resignation” was effective as of March 11, 2013.

On Wednesday, March 20, 2013, Bareno received Surbrook’s March 18, 2013 letter. On Monday, March 25, 2013, Bareno drove to the school and scheduled an appointment to speak with Chancellor Constance Carroll. Thereafter, Surbrook agreed to schedule a meeting with Bareno and Alvino.

On April 3, 2013, Bareno met with Alvino. She provided him with all of her Kaiser documentation and reiterated that she had been on medical leave starting on February 25, 2013, and that she had not voluntarily resigned. Via certified mail, on April 5,2 013, Bareno also mailed copies of her medical documents to both Lewison and Alvino. These documents included the Kaiser “Work Status Report” indicating that a doctor had placed Bareno on medical leave between March 1 and March 8, 2013.

Over ten days later, on April 16, 2013, Alvino mailed Bareno a letter informing her that his “office received your recent documents,” but that “[n]one of the documents mailed to us supports your claim that you requested a leave of absence for the dates in question and that you had contacted your supervisor.” Alvino’s letter further stated that the College continued to “accept[ ] [Bareno’s] voluntary resignation.”

Three days later, on April 19, 2013, Bareno mailed another package to Alvino. This package included a copy of the “Work Status Report” indicating Bareno’s need to be off of work between March 1 and March 8, 2013 for medical reasons and a copy of the email sent to Ornelas attaching this “Work Status Report.”

In February 2014, Bareno filed a complaint against San Diego Community College District (“SDCCD”), alleging one cause of action for retaliation in violation of the CFRA. SDCCD moved for summary judgment, which the trial court granted on October 9, 2015. The court then entered judgment in favor of SDCCD on October 27, 2015. Bareno filed a timely notice of appeal.

SDCCD argued that the trial court correctly concluded that SDCCD was entitled to judgment on Bareno’s CFRA retaliation cause of action because Bareno “did not properly notify the College that she was taking medical leave.” More specifically, SDCCD asserted that Bareno was absent on Monday, March 4, 2013, without “prior notice” from Bareno and that she “did not call in nor respond to inquiries for the remainder of that work-week.”

The Court of Appeal disagreed with SDCCD and pointed out the following:

(a) On February 25, 2013, Bareno notified SDCCD of her need for CFRA-qualifying leave. Specifically, Bareno called Ornelas and told her that she would not be at work because she was sick, depressed, stressed, and had to go to the hospital. Later that evening, Bareno also sent an email to Ornelas, informing her that she would be out on medical leave at least through March 1, 2013.


(b) Then, on February 27, 2013, Bareno provided SDCCD with a document from Kaiser, certifying that Bareno was “placed off work” for the period from February 25 to March 1, 2013. SDCCD conceded that Bareno notified it of her need for this medical leave, and there is no evidence that SDCCD ever challenged the propriety of the medical certification that Bareno submitted for this time period.


(c) On March 1, 2013, Bareno sent an email to Ornelas, attaching a second document from Kaiser, indicating her need for leave from work between March 1 and March 8, 2013. This document, entitled “Work Status Report,” is virtually identical to the document that Bareno submitted to Ornelas on February 27, 2013, which the College accepted as sufficient certification of Bareno’s need for medical leave for the period from February 25 to March 1, 2013.


(d) At the time that Bareno sent the March 1, 2013 email to Ornelas, Bareno had already placed SDCCD on notice that she was receiving medical treatment that required her to take leave from work. Therefore, SDCCD knew that Bareno was out for a medical reason the entire week of February 25 through March 1, 2013. There is also no dispute that Bareno sent an email to Buckley on Friday, March 1, 2013, in which Bareno indicated that she was “out on a ... medical leave” and would “notify all concern[ed] of [her] return.” Despite this indication that Bareno was seeking additional leave, beyond March 1, 2013, for a CFRA-qualifying reason, SDCCD did not contact Bareno about the apparent lack of recertification for that time period.

The Court of Appeal noted that CFRA places on employers an obligation to make inquiries of an employee if it requires additional information from that employee regarding the employee’s request for leave. It was undisputed that Bareno was in contact with SDCCD after the week during which SDCCD contends she was absent without request for leave, and she provided multiple other medical certifications for this period of time. Yet, SDCCD never informed Bareno, in response to her later communications, that it believed it had not received certification for the week of March 4 through March 8, 2013.

Based on all of the evidence, the Court of Appeal held that a jury could conclude that Bareno’s attempts to contact SDCCD about her need for CFRA leave were reasonable, and that she therefore sufficiently “requested” CFRA leave for the entire period during which she was absent in early 2013. Read the full California Court of Appeal opinion here.

If you have believe that your rights under the CFRA have been violated, call ((916) 612-0326) or email (contact@finleyemplaw.com) Finley Employment Law today. We serve clients throughout California, including Sacramento, Roseville, Walnut Creek, San Ramon, and Concord.

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