Facts

Plaintiff, a former bus operator, was terminated for violating defendant's attendance policy, which is part of its collective bargaining agreement with plaintiff's former union. Plaintiff was terminated for excessive absenteeism after accruing eight absences and eighty hours lost. The attendance policy in the collective bargaining agreement defines excessive absenteeism as six or more charged absences. If a bus operator puts together 60 absence-free days, the oldest absence will clear from or drop off the operator's record. Defendant only counts days where the operator is available to operate a bus towards the 60-day clearance period. Days where the operator is unavailable due to, for example, an approved request for time off, a doctor's appointment, jury duty, or leave under the California Family Rights Act leave do not count towards the clearance period.

PLAINTIFF'S CONTENTIONS: Plaintiff claimed that the attendance policy in the collective bargaining agreement, and defendant's enforcement of that policy, violated the CFRA. Specifically, plaintiff argued that the policy of not counting CFRA leave days towards the absence clearance period interfered with bus operators' right to CFRA leave by discouraging them from using CFRA leave. Plaintiff also argued that not counting CFRA leave days towards the clearance period made it more difficult for bus operators who made frequent use of CFRA leave to clear their absences, which puts them in a less favorable position than bus operators who do not take CFRA leave. This also has a disparate impact on bus operators who have physical disabilities that require the use of intermittent CFRA leave.
Plaintiff also argued that the express language in the collective bargaining agreement does not put bus operators on notice that CFRA leave days are not counted towards absence clearance, and that the 60-day absence clearance period in the CBA is a longevity rather than a benefit.

DEFENDANT'S CONTENTIONS: After years of going through the progressive discipline system and failing to show improvement, plaintiff was terminated for excessive absenteeism after accruing eight absences and eighty hours lost. Defendant argued, relying on federal authority interpreting similar language in the Family Medical Leave Act, that absence clearance is a benefit and that an employer is not required to allow an employee to continue to accrue absence clearance while on leave. All that is required is that the employer returns the employee to his or her position with the same amount of time accrued towards absence clearance as when the leave began. In other words, employees who take CFRA leave must be treated the same as, not better than, employees who do not take CFRA leave. Although there has never been a published ruling on this CFRA issue in California, California courts interpreting the CFRA routinely looks to federal authority interpreting similar provisions of the FMLA.

Result

The parties filed cross motions for summary judgment/adjudication on the issue of the legality of the attendance policy under the CFRA. The court granted defendant's motion for summary judgment in its entirety and denying plaintiff's motion for summary adjudication. The court found that absence clearance is a benefit and that defendant was not required to allow bus operators to accrue time towards clearance while on leave. The court further found that defendant's collective bargaining agreement provided adequate notice of this policy to its bus operators, including plaintiff. The court concluded that since each of plaintiff's causes of action relied on his argument that the attendance policy was unlawful, each of his causes of action failed as a matter of law.

Other Information

Plaintiff filed a motion for reconsideration, which was denied. Plaintiff has filed an appeal, which is pending. The issues on appeal are whether the CFRA is more protective than the FMLA, and whether it is legal under the CFRA to treat CFRA leave less favorably than vacation leave, and whether it is legal to fire an employee who would not have been fired but for their use of CFRA leave. In addition, whether the MTA's Collective Bargaining Agreement effectively puts its bus operators on notice that CFRA leave days do not count towards absence clearance, and whether the 60-day timeframe for absence clearance listed in the CBA is a longevity rather than a benefit.